Appeal of URBAN DOVE TEAM CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,744

(April 20, 2015)

Shearman & Sterling LLP, attorneys for petitioner, John Gueli and Juliana S. Clay, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Urban Dove Team Charter School (“Urban Dove” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site in a public school building or space in a privately owned or publicly owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be sustained.

Petitioner is a charter school currently located in a leased facility in Community School District (“CSD”) 13.  It was granted a provisional charter in December 2010 for a five year term in accordance with Education Law §§2851(2)(p) and 2853(1)(a).[1]

Petitioner is authorized to serve high school students. Petitioner explains that the school is an ungraded Transfer School serving students who had previously attended ninth grade and are under-credited.  Instead of labeling class years with traditional tenth, eleventh and twelfth grade labels, petitioner refers to its class years as “Year 1, Year 2 and Year 3.”  After receiving approval from the New York State Education Department for a planning year, petitioner began serving its Year 1 cohort in the 2012-2013 school year.  It added its Year 2 cohort in the 2013-2014 school year and its Year 3 cohort in the 2014-2015 school year.

By letter to DOE dated January 14, 2015, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its twelfth grade.  By letter dated February 27, 2015, DOE acknowledged petitioner’s January 14, 2015 request, but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it facilities in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).

Respondent contends that because petitioner had previously served students in grade 12 and did not expand to that grade during the 2014-2015 school year, Education Law §2853(3)(e) does not apply.  It requests that the appeal be dismissed in its entirety.[2]

Preliminarily, I note that, while respondent’s answer was timely served upon petitioner, it was not filed with my Office of Counsel within one business day after it was served as required by section 276.11 of the Commissioner’s regulations.  While I will consider respondent’s answer, I admonish respondent to ensure that regulatory timelines are met in the future.[3]

This appeal was commenced pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014. Education Law §2853(3)(e)(3) provides that a charter school in the City School District of the City of New York shall have the option of appealing the “city school district’s offer or failure to offer a co-location site through ... an expedited appeal to the commissioner” pursuant to Education Law §310 and the procedures prescribed in Education Law §2853(3)(a-5). Pursuant to Education Law §2853(3)(e)(3), in any such appeal, the standard of review shall be the standard prescribed in Civil Practice Law and Rules (“CPLR”) §7803.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner asserts that DOE failed to offer it a co-location space in a public school facility or space in another public or private facility at no cost to petitioner, in violation of Education Law §2853(3)(e).  Education Law §2853(3)(e) provides that in the City School District of the City of New York, charter schools that require additional space due to an expansion of grade level approved by their charter entity for the 2014-2015 school year or thereafter, and request co-location in a public school building, shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to the charter school (Education Law §2853[3][e][1]).

DOE contends that Education Law §2853(3)(e) does not apply because petitioner served grade 12 previously, at least during the 2013-2014 school year, and therefore, petitioner did not expand to serve grade 12 in the 2014-2015 school year.  To support its position, DOE relies on records maintained by its Automate the Schools (“ATS”) database, which indicates that petitioner submitted information regarding one student in grade 12 for the 2013-2014 school year.  DOE also refers to the “New York State School Report Card [2013-14]” which shows that Urban Dove served one student in grade 12 in the 2013-2014 school year.

Petitioner explains that the student referenced by DOE transferred to the school in the 2012-2013 school year, the school’s first year of operation.  Petitioner further explains that at the time the student enrolled, it was the school’s understanding that the student was behind in credits and appropriately enrolled in the Year 1 cohort.  Petitioner also explains that it learned that the student was not behind in credits when it received her transcript from her previous school in the middle of the 2012-2013 school year.  Petitioner explains that the student earned enough credits to graduate upon completion of her first trimester of her second year in November 2013 and that it had to assign her to twelfth grade for purposes of the ATS database as she could not have graduated absent such ATS assignment.  Under the circumstances, I am unable to find that petitioner expanded to serve twelfth grade students in the 2013-2014 school year within the meaning of Education Law §2853(3)(e).  The record indicates that petitioner served one student in the equivalent of twelfth grade and that when the student was enrolled, petitioner believed she was under-credited.  The fact that petitioner served a single twelfth-grade-equivalent student during the 2013-2014 school year, due to a misunderstanding regarding credits, does not mean, as respondent argues, that petitioner previously expanded to serve students in twelfth grade during the 2013-2014 school year for purposes of Education Law §2853(3)(e).  An expansion contemplated by that statute is one that may require additional space, not the provision of services to a single student to correct an error in the student’s grade placement.  Accordingly, I find that petitioner’s expansion to serve students in the equivalent of twelfth grade began in the 2014-2015 school year.

Here, the record indicates that in its February 27, 2015 response to petitioner’s request for co-location space, DOE stated that it would “not be extending an offer of space at this time.”  However, in the event that DOE did not offer petitioner a co-location site in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner.  Instead, DOE indicated in its February 27, 2015 response only that it could not extend an offer of co-located space.  As it did not offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner, DOE failed to comply with the requirements of Education Law §2853(3)(e)(1).

The standard of review in an appeal pursuant to Education Law §2853(3)(e) is the standard prescribed in CPLR §7803, which lists questions that may be raised in a proceeding brought pursuant to Article 78.  The question set forth in CPLR §7803(1) is whether the body or officer failed to perform a duty enjoined upon it by law.  The question set forth in CPLR §7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.  Although Education Law §2853(3)(e)(3) does not specify which specific provision of CPLR §7803 applies, I find that under either subdivision (1) or (3), petitioner has carried its burden of establishing the facts and law upon which it seeks relief.

The record in this case indicates that petitioner was approved by its charter entity to serve high school students when it was initially chartered in 2010, and that it served students in the equivalent of traditional grades 10 and 11 prior to the 2014-2015 school year.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve 75 students in the equivalent of traditional grade 12, for which it required additional space.  Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level in the 2014-2015 school year that was approved by its charter entity, albeit initially in a charter action that occurred prior to the enactment of Education Law §2853(3)(e).  There being no language in the statute limiting its applicability to expansions of grade level approved by a charter entity on or after the effective date of Education Law §2853(3)(e), I find that petitioner has met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly owned space.

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner in each remaining year of the charter term, commencing with the 2014-2015 school year, rental assistance based on student enrollment in any newly added grade level(s) for which petitioner has been approved to provide instruction.  Specifically, with respect to an existing charter school whose expansion of grade level is approved by its charter entity before October 1, 2016, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to the grade level expansion ... that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and ... (ii) for a charter school which expands its grade level, pursuant to this article, before [October 1, 2016], the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner, for its newly added grade 12 equivalent commencing with the 2014-2015 school year and for each remaining year of the current charter term, the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of the charter school’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion (see Appeal of Global Community Charter School, 54 Ed Dept Rep, Decision No. 16,694).  As noted above, commencing with the 2014-2015 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each remaining year of the current charter term.

In this instance, petitioner claims that it has not been afforded the opportunity to select an alternative privately owned site, and respondent must afford the school an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of an alternative privately owned site so that DOE can determine whether such rental cost is less than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner an amount attributable to the grade level expansion that is the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

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