Appeal of BOYS PREPARATORY CHARTER SCHOOL OF NEW YORK[1] from action of the New York City Department of Education regarding school utilization.

Decision No. 16,788

(July 3, 2015)

Mayer Brown LLP, attorneys for petitioner, Philip O. Brandes and Katie E. Fernandez, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Boys Preparatory Charter School of New York (“Boys Prep” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it access to facilities at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be dismissed.

Petitioner is a charter school authorized by the Board of Trustees of the State University of New York (“SUNY”) and currently co-located with P.S. 107 in Building X107 in Community School District (“CSD”) 8.  Its initial charter was issued on December 14, 2010.[2]

Petitioner is authorized to serve students in kindergarten through grade five.  On May 2, 2013, DOE issued an Educational Impact Statement (“EIS”) and Building Utilization Plan (“BUP”), pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3), proposing the co-location of Boys Prep with P.S. 107 in Building X107, with a maximum charter school enrollment between 270 and 360 students.  A public hearing was held on June 11, 2013 and, on June 19, 2013, respondent’s Panel for Educational Policy (“PEP”) approved the co-location of Boys Prep with P.S. 107 in Building X107, beginning in the 2014-2015 school year.  When it first opened for instruction in the 2014-2015 school year, petitioner served students in kindergarten and first grade.  It plans to expand one grade level in each succeeding school year until the 2018-2019 school year when it plans to serve students in kindergarten through grade five.

By letter to DOE dated December 17, 2014 and emailed to DOE on December 19, 2014 (“December letter”), petitioner requested “space in a building in Bronx Community School District 8 (“CSD 8”) for grades PreK-5, pursuant to the state law that grants a subset of NYC charter schools a statutory right to facilities assistance.”  According to petitioner, in telephone conversations with DOE on February 3, April 30 and May 18, 2015, DOE advised petitioner that it would not be offering petitioner space as requested in petitioner’s December letter and that it would not be providing a formal letter regarding petitioner’s request for space.  This appeal ensued.

Petitioner asserts that DOE’s failure to respond to its December letter within the statutorily prescribed five-month period and in violation of its statutory obligation to do so constitutes a “constructive denial” of its request for facilities and was arbitrary and capricious.  It asserts that, because DOE failed to offer it facilities, it is entitled to an award of the statutorily mandated rental assistance.  Petitioner seeks an order directing DOE to either provide adequate space at no cost to petitioner, or rental assistance in accordance with Education Law §2853(3)(e)(5), “beginning in the 2015-2016 School Year (for Grade 2 and Pre-K expansion); or alternatively, beginning in the 2016-2017 School Year (for Grades 2-3 and Pre-K expansion); through each remaining year of the charter term.”[3]  It also requests an opportunity to select an alternative privately owned site to accommodate its claimed expansion in order for it to present to DOE evidence of the actual rental cost so DOE may calculate the costs pursuant to Education Law §2853(3)(e)(5)(b).

Respondent contends that petitioner’s claims are time barred and also barred by the doctrine of laches.  It also contends that petitioner is not entitled to space for a universal prekindergarten program because pre-kindergarten is a “program,” not a “grade,” and the provisions of Education Law §2853(3)(e) do not apply.  Respondent further contends that the provisions of Education Law §2853(3)(e) do not apply where a charter school desires to increase its enrollment for grades for which co-location space has already been provided.  It requests that the appeal be dismissed in its entirety.

Petitioner filed a reply asserting that its December letter is appropriate under Education Law §2853(3)(e) and that “Pre-K should be analyzed as a ‘Grade’ Not a ‘Program.’”

Initially I will address several procedural issues.  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 §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.[4]

As noted above, petitioner submitted a reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  While I have reviewed respondent’s memorandum of law, I have not considered those portions containing new allegations.

I decline to dismiss the appeal as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Respondent asserts that, while petitioner frames its appeal as regarding a request for co-location under Education Law §2853(3)(e), the appeal actually challenges the co-location plan approved by the PEP in 2013 and should have been filed within 30 days of the PEP’s 2013 co-location determination.  I disagree.  Petitioner’s request for co-location space that is before me in this appeal was made pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014 and affords charter schools certain rights to co-located space or payment for space not previously available.  The record indicates that petitioner was approved by its charter entity to commence instruction in the 2014-2015 school year and that, in December 2014, it requested space commencing in the 2015-2016 school year.  Education Law §2853(3)(e)(1) 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.  Petitioner is challenging DOE’s failure to respond to its December 2014 request for space within the statutorily prescribed five-month period.  Petitioner emailed its request for space to DOE on December 19, 2014, DOE failed to make an offer of space or deny petitioner’s request within the statutorily prescribed five-month period, which ended on May 19, 2015; petitioner commenced this appeal on June 4, 2015, within 30 days of the expiration of the time period within which DOE was required to make an offer of space.

Turning to the merits, this appeal was commenced pursuant to Education Law §2853(3)(e), which as noted above, 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).

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 not carried its burden of establishing the facts and law upon which it seeks relief.

Petitioner asserts that the space currently allocated to it in Building X107 is insufficient to serve its expected student body and that it requires additional space due to an “expansion of grade levels” pursuant to 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.  As noted above, 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 claims that it requires additional space due to an expansion of grade level.  However, there is nothing in the record to indicate that the space petitioner occupies in Building X107 will be insufficient for the grades served during the remainder of the charter term.  The record in this case indicates that petitioner commenced instruction in the 2014-2015 school year serving kindergarten and first grade.  When petitioner adds second grade in the 2015-2016 school year, the last school year of the school’s current charter term, its enrollment authorized under its current charter will be less than 360 students, the maximum enrollment allocated to it in the BUP.[5]  Petitioner has failed to demonstrate a need for space attributable to an expansion of grade level during the charter term.  Accordingly, on this record, I cannot conclude that petitioner requires additional space “due to an expansion of grade level … approved by their charter entity for the [2014-2015] school year or thereafter ...” (Education Law §2853[3][e]).  To the extent petitioner is requesting space beyond the current charter term, such claim is premature and speculative and will not be entertained in this appeal.  Upon adoption of a renewal charter, petitioner may request space based upon any expansion of grade level resulting from the terms of the renewal charter.

To the extent petitioner is claiming grade expansion based on the operation of a pre-kindergarten program, petitioner’s claim is unavailing.  Petitioner asserts that pre-kindergarten should be analyzed as a grade and not a program.  Respondent contends that petitioner is not entitled to space for a pre-kindergarten program because pre-kindergarten is a “program,” not a “grade,” and the provisions of Education Law §2853(3)(e) do not apply.  It argues that the plain language of Education Law §§3602-e and 3602-ee characterizes pre-kindergarten as a program and not a grade, that the list of eligible providers in Education Law §3602-ee is not restricted to schools and that operation of pre-kindergarten programs under Education Law §3602-ee is contingent on adequate funding, in contrast to the funding scheme for kindergarten through twelfth grade.

Education Law §3602-e authorizes funding for universal pre-kindergarten programs in school districts and does not include charter schools as eligible agencies to participate in such programs.  As respondent correctly notes, Education Law §3602-e(7)(c) distinguishes pre-kindergarten from “early elementary grades.”

Education Law §3602-ee (as added to Article 73 of the Education Law by Section 1 of Part CC of Chapter 56 of the Laws of 2014) establishes a statewide universal full-day pre-kindergarten program, the purpose of which is to incentivize and fund state-of-the art innovative pre-kindergarten programs.  Chapter 53 of the Laws of 2014 appropriated $340 million for such programs, with a total of $300 million allocated to the New York City region and $40 million allocated to the rest of the State.  Funds for pre-kindergarten programs operating pursuant to Education Law §3602-ee are awarded pursuant to a request for proposals (“RFP”) process administered by the New York State Education Department.  Subdivision 12 of Education Law §3602-ee notwithstands the provisions of Education Law §2854(1)(a) and (2)(c) and provides that charter schools shall be eligible to participate in universal full-day pre-kindergarten programs under Education Law §3602-ee.  Therefore, charter schools are eligible to participate in the statewide universal full-day pre-kindergarten program as either part of a school district’s consolidated application or as an individual applicant.  The RFP explains, however, that a statewide universal full-day pre-kindergarten program operated by a charter school “is not considered to be an expansion of a grade level of the charter school and therefore, [the charter school] does not need to revise its charter to operate such pre-kindergarten program.”

Education Law §2853(3)(e) provides that, in the City School District of the City of New York, charter schools that first commence instruction or that require additional space due to an expansion of grade level, pursuant to this Article, (i.e., Article 56), 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 such charter schools that first commence instruction or that require additional space due to an expansion of grade level, pursuant to this Article, (i.e., Article 56), approved by their charter entity for those grades newly provided (emphasis supplied).

The purpose of Article 56 is to authorize a system of charter schools to provide opportunities for teachers, parents and community members to establish and maintain schools that operate independently of existing schools and school districts in order to accomplish stated objectives such as improving student learning and achievement and increasing learning opportunities for all students (see Education Law §2850).  Article 56 governs the operation of charter schools and establishes requirements in such areas as facilities, enrollment and financing and, as noted above, also provides certain charter schools access to facilities (see Education Law §2853[3][e]).  Education Law §2854(2)(c) specifically authorizes charter schools to “serve one or more of the grades one through twelve, and shall limit admission to pupils within the grade levels served.  Nothing herein shall prohibit a charter school from establishing a kindergarten program” (emphasis supplied).

Here, petitioner is seeking co-location space pursuant to a provision in Article 56 of the Education Law, the New York Charter Schools Act, for a pre-kindergarten program that is created, funded and administered under Article 73 (see Education Law §3602-ee) and is not provided pursuant to Article 56.  On the record before me, I find that petitioner’s need for additional space is not due to an expansion of grade level or newly provided grades pursuant to Article 56 as contemplated by Education Law §2853(3)(e).

I disagree with petitioner’s contention that the addition of pre-kindergarten constitutes an expansion of grade level within the meaning of Education Law §2853(3)(e).  Petitioner argues that because the plain language of other sections of the Education Law treat pre-kindergarten as a grade, pre-kindergarten should be treated as a grade for purposes of interpreting Education Law §§2853(3)(e) and 3602-ee.  However, Education Law §2853(3)(e) refers to “an expansion of grade level pursuant to this article.”  The language is clear and unambiguous and there is no need to look to other sections of the Education Law for guidance in interpreting such language as petitioner suggests.

As noted above, Education Law §2854(2)(c) provides that a charter school shall serve one or more of the grades one through twelve and that “[n]othing herein shall prohibit a charter school from establishing a kindergarten program.”  Education Law §2854(1)(a) provides that notwithstanding any provision of law to the contrary, the provisions of Article 56 shall govern and be controlling to the extent that any provision of Article 56 is inconsistent with any other state law.  Against the framework of Article 56, the Legislature included a provision in Education Law §3602-ee deeming charter schools eligible to participate in such pre-kindergarten programs (Education Law §3602-ee[12]).  The Legislature specifically chose to include a provision in Education Law §3602-ee to permit charter schools to operate such pre-kindergarten programs rather than amending Education Law §2854(2)(c) to allow charter schools to provide pre-kindergarten generally.[6]  Moreover, while Education Law §3602-ee(12) provides for the applicability of other sections of Article 56, it does not provide that Education Law §2853(3)(e) applies to charter schools operating statewide universal full-day pre-kindergarten programs.

Further, the funding mechanisms for statewide universal full-day pre-kindergarten programs and charter schools are separate and distinct.  Pursuant to Education Law §3602-ee, pre-kindergarten programs are funded through grants awarded on a competitive basis based on available funding, merit and other factors.  Charter schools serving one or more of grades one through twelve pursuant to Article 56 (and in addition kindergarten if the charter so provides), on the other hand, are paid a basic tuition by the school district of residence for each student enrolled in the charter school who resides in the district in accordance with Education Law §2856.

Finally, although, as discussed above, I find that the statutory provisions applicable in this appeal – Education Law Article 56 and §3602-ee – are clear in their intent that pre-kindergarten is a program rather than a grade, I recognize that there are other provisions in Education Law and Commissioner’s Regulations in which the word “grade” does precede the word “prekindergarten” (e.g., Education Law §§2554[6] and 3602[4][d][6][a]; 8 NYCRR §100.3).  These provisions reflect that pre-kindergarten programs are an integral part of early childhood education, but the fact that other statutes may refer to pre-kindergarten as a grade for other purposes is not controlling here.  Under New York law, pre-kindergarten programs are not required to be made available throughout the state and there is no entitlement to a public education for resident students under the age of five (see Education Law §3202[1]).  Students of kindergarten age or above are entitled to attend the public schools without the payment of tuition, which differentiates those grades from pre-kindergarten programs.

In its reply, petitioner references provisions of the Education Law where kindergarten is referred to as a program or grade interchangeably in support of its claim that prekindergarten should be considered a “grade”, the addition of which should be a grade expansion under Education Law §2853(3)(e).  Such references to kindergarten are not dispositive of the issue as pertains to pre-kindergarten and, in light of the above analysis, are unpersuasive.

The Legislature could and did rationally distinguish between pre-kindergarten and kindergarten through grade 12 for purposes of Article 56.  A universal full-day pre-kindergarten program is a program and not a “grade” that charter schools are otherwise authorized to serve within the meaning of Article 56.

For the foregoing reasons, I find that an expansion of grade level under Education Law §2853(3)(e) does not include a charter school’s provision of a pre-kindergarten program pursuant to Education Law §3602-ee. 

On this record, petitioner has failed to establish that it is a charter school that requires additional space in its current charter term due to an expansion of grade level.

I have considered the parties’ remaining contentions and find them to be without merit.

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

THE APPEAL IS DISMISSED.

END OF FILE

[6] As noted previously, Education Law §3602-ee specifically provides that “[n]otwithstanding [§2854(1)(a)] of this chapter and [§2854(2)(c)] of this chapter, charter schools shall be eligible to participate in universal full-day pre-kindergarten programs under this section....”  By notwithstanding the provision of Article 56 that limits charter schools to serving the specified grades, the statute clearly indicates that pre-kindergarten in not a grade within the meaning of Article 56.