Appeal of DEMOCRACY PREP ENDURANCE CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,762

(May 29, 2015)

Fried, Frank, Harris, Shriver & Jacobson LLP, attorneys for petitioner, Janice Mac Avoy and Samuel A. Mathias, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth Edmonds, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Democracy Prep Endurance Charter School (“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 in part.

Petitioner is a charter school authorized by the Board of Regents (“Regents”) and currently co-located in a public school building in Community School District (“CSD”) 5.[1]  Its initial charter was issued in 2010 at which time it was authorized to serve students in sixth through eighth grade.  Petitioner first opened for instruction in the 2012-2013 school year serving students in sixth grade.  It expanded to add grade seven in the 2013-2014 school year and, in the 2014-2015 school year, served students in sixth through eighth grade.

In March 2015, the Regents approved a revision to petitioner’s charter authorizing it to expand to serve students in grades nine and ten.  The record indicates that, commencing in the 2015-2016 school year, in addition to serving students in sixth through eighth grade, petitioner will expand to serve students in ninth grade.  It will add tenth grade in the 2016-2017 school year.

By letter to DOE dated September 15, 2014, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e).  Petitioner explained that it “intends to expand to include students in both elementary- and high-school grades starting in the 2015-16 school year.”  Petitioner’s letter further states:

DPE’s elementary school will serve 108 kindergarteners in 2015-16 and will add one grade level each year until it reaches scale as a fully-grown continuum serving 648 students in grades K-5 in the 2020-21 school year.  DPE’s high school will serve 108 students in grade 9 in 2015-16 and will add one grade level each year until it reaches scale as a fully-grown continuum serving 432 students in grades 9-12 in the 2018-19 school year.[2]

By letter dated April 2, 2015, DOE responded to petitioner’s September 15, 2014 request, indicating 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) and that such failure was arbitrary and capricious.  As relief, petitioner seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5) for students in all grades for which it has been approved to provide instruction during the term of its charter.

Respondent requests that the appeal be dismissed.

In its reply, petitioner asserts that DOE did not refute any arguments set forth in the petition and did not assert any affirmative defenses.

Preliminarily, I note that 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 site in a public school building or space in a privately owned or other publicly owned 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 for those grades newly provided.  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]).

Here, petitioner made a written request for co-location space in a public school building on September 15, 2014, stating that it “intends to expand to include students in both elementary- and high-school grades” beginning with the 2015-2016 school year.  In March 2015, petitioner’s charter entity approved a revision to petitioner’s charter, authorizing it to expand to serve grades nine and ten.  Thereafter, by letter dated April 2, 2015, 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 April 2, 2015 response only that it would not be extending an offer of 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) with respect to petitioner’s request for space for its ninth and tenth grade expansions.

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 initially approved by its charter entity to serve students in sixth through eighth grade.  The record further indicates that petitioner commenced instruction in the 2012-2013 school year serving students in sixth grade and added a grade in each succeeding school year.  In March 2015, petitioner’s request to expand to serve students in grades nine and ten was approved by the Regents.  Commencing in the 2015-2016 school year, petitioner will begin serving students in ninth grade, and in the 2016-2017 school year, will begin serving students in tenth grade, an expansion for which it requires 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, commencing in the 2015-2016 school year with its ninth grade, that was approved by its charter entity in March 2015.  Petitioner has thus met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly owned space (see Education Law §2853[3][e]).

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 in the 2015-2016 school year with petitioner’s ninth grade expansion, 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 newly-added grades commencing with the 2015-2016 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 then-current school year (e.g. 2015-2016 in the first year of the grade expansion) and the positive difference of the charter school’s enrollment in the then-current school year minus the charter school’s enrollment in the 2014-2015 school year.  As noted above, commencing with the 2015-2016 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each year of the current charter term.

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately owned site, and respondent must afford the charter 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 lesser 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 TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner, for newly-added grades, commencing with grade nine in the 2015-2016 school year and for each remaining year of the charter term, 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 then-current school year and the positive difference of the charter school’s enrollment in the then-current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

END OF FILE