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Decision No. 16,761

Appeals of BUSHWICK ASCEND CHARTER SCHOOL, BROWNSVILLE ASCEND CHARTER SCHOOL, BROOKLYN ASCEND CHARTER SCHOOL, CANARSIE ASCEND CHARTER SCHOOL and CENTRAL BROOKLYN ASCEND CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,761

(May 26, 2015)

Herrick, Feinstein LLP, attorneys for petitioners, Susan T. Dwyer and Leah Kelman, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Evan Schnittman, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners Bushwick Ascend Charter School (“Bushwick”), Brownsville Ascend Charter School (“Brownsville”), Brooklyn Ascend Charter School (“Brooklyn”), Canarsie Ascend Charter School (“Canarsie”) and Central Brooklyn Ascend Charter School (“Central Brooklyn”) (collectively “petitioners”) each challenge the New York City Department of Education’s (“respondent” or “DOE”) failure to offer the schools co-location sites in a public school building or space in a privately owned or publicly owned facility at DOE’s expense and at no cost to petitioners, as required by Education Law §2853(3)(e).  Because the appeals involve common issues of law and fact and each seeks similar relief, they are consolidated for decision.  The appeals must be dismissed.

Petitioners are charter schools duly authorized to operate in New York City.  Much of the factual background is set forth at length in prior appeals brought by each petitioner, and will not be repeated here (see Appeal of Williamsburg Ascend Charter School,[1] 54 Ed Dept Rep, Decision No. 16,716; Appeal of Bushwick Ascend Charter School, 54 id., Decision No. 16,717; Appeal of Canarsie Ascend Charter School, 54 id., Decision No. 16,718; Appeal of Brownsville Ascend Charter School, 54 id., Decision No. 16,719; Appeal of Brooklyn Ascend Charter School, 54 id., Decision No. 16,720) (collectively “prior appeals”). 

In the prior appeals, petitioners challenged respondent’s failure to offer co-location sites in a public school building or space in a privately owned or publicly owned facility at DOE’s expense and at no cost to petitioners for the 2014-2015 school year, as required by Education Law §2853(3)(e).  On February 26, 2015, the prior appeals were all sustained in part.  In Bushwick, Brownsville, Brooklyn, and Canarsie, the charter schools required additional space due to an expansion of grade level.  Thus, I ordered DOE to pay each petitioner, for newly added grades commencing with the 2014-2015 school year, and for each remaining year of their charter term, rental assistance 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 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.  With respect to Central Brooklyn, the record in Williamsburg indicated that the school first commenced instruction in the 2014-2015 school year and, therefore, I ordered DOE to pay petitioner rental assistance, based on student enrollment in all grades for which petitioner had been approved to provide instruction during the term of its charter, that is 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 school’s current year enrollment.

As in the prior appeals, petitioners in the instant appeals challenge respondent’s failure to offer co-location sites pursuant to Education Law §2853(3)(e).  By correspondence dated December 23, 2014, while the prior appeals were pending, respondent was notified of petitioners’ need for space in their respective community school districts for the 2015-2016 school year.  By letter dated February 27, 2015, subsequent to the issuance of my decisions in the prior appeals, respondent acknowledged petitioners’ December 23, 2014 requests for space for the 2015-2016 school year but stated that it would “not be extending offers of space at this time.”  These appeals ensued.[2]

Petitioners assert that respondent failed to offer any facilities, in violation of Education Law §2853(3)(e), and that such failure is arbitrary and capricious or an abuse of discretion.  As relief, petitioners seek an order directing respondent to pay rental assistance in accordance with Education Law §2853(3)(e)(5) for the term of each of the current charters and “as [they are] renewed in the future.”

Respondent requests that the appeals be dismissed in their entirety and asserts three affirmative defenses: the appeals are moot; the relief requested exceeds the scope of Education Law §2853(3)(e); and petitioners are collaterally estopped from seeking rental assistance for each year of the schools’ charter terms.[3]

The appeals must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The issue of petitioners’ entitlement to rental assistance from respondent for their current charter terms was settled by my decisions in the prior appeals.  To the extent that respondent denies petitioners’ entitlement to such rental assistance, I remind respondent of its obligation to comply with the orders in my prior decisions and with the applicable requirements of the Education Law.  Should respondent fail to do so, its actions could, of course, be challenged in future appeals.

In light of this disposition, I need not address the parties’ remaining contentions.[4]

THE APPEALS ARE DISMISSED.

END OF FILE

 

[1] Petitioner Central Brooklyn herein stated in its prior appeal that “Central Brooklyn Ascend Charter School” was Williamsburg Ascend Charter School’s assumed name.  However, I noted in that appeal that records on file with the New York State Education Department indicate that Williamsburg’s name was changed to Central Brooklyn Ascend Charter School, effective January 2015.  Therefore, the decision in that matter refers to petitioner as Williamsburg Ascend Charter School.

 

[2] By e-mail correspondence to my Office of Counsel, dated March 31, 2015, respondent indicated that the parties were attempting to reach a resolution in the present appeals.  By several stipulations, the parties requested an extension of time in which to serve pleadings in each appeal, as well as a request that the decisions be held in abeyance until May 26, 2015, while they attempted to resolve the matters.  Such requests were granted.  However, it appears that the parties were unable to reach a resolution and, thereafter, on May 6, 2015, respondent served a verified answer in each of the appeals.

 

[3] I note that, although respondent generally denies petitioners’ assertion that the appeals are timely, it does not raise timeliness as a defense.  In any event, petitioners commenced the appeals within the time period required by Education Law §2853(3)(e)(2).[4] To the extent that petitioners attempt to challenge the scope of the relief granted in the prior decisions and claim entitlement to relief beyond the current charter terms, such claim is not properly before me.  Petitioners have not attempted to reopen the prior appeals pursuant to §276.8 of the Commissioner’s regulations, nor have they appealed such decisions pursuant to Article 78 of the Civil Practice Law and Rules.