Appeals of EAST HARLEM SCHOLARS ACADEMY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,914

(June 20, 2016)

Cohen Schneider & O’Neill LLP, attorneys for petitioner, Cliff S. Schneider and Lisa J. Holtzmuller, Esqs., of counsel

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

ELIA, Commissioner.--In two separate appeals, petitioner, East Harlem Scholars Academy Charter School (“EHSA” or “petitioner”),[1] an existing education corporation with authority to operate East Harlem Scholars Academy Charter School (the “school”) challenges the New York City Department of Education’s (“DOE” or “respondent”) failure, in response to two separate requests, to offer it a co-location site in a public school building for the school’s grade four through eight expansion 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).  Because the appeals involve common issues of law and fact, they are consolidated for decision.  The appeals must be sustained in part.

EHSA is authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate the school, which currently serves students in kindergarten through grade five in Community School District (“CSD”) 4.[2]  The school opened for instruction in the 2011-2012 school year serving kindergarten and first grade and added a grade each succeeding year.  It began serving grade four in the 2014-2015 school year and grade five in the 2015-2016 school year.  In January 2016, SUNY renewed the school’s charter for a five-year term and approved petitioner’s request to revise the school’s charter to add grades six through eight.[3]  According to its executive director, the school will expand to serve grade six in the 2016-2017 school year and will add one grade level each succeeding year until it serves kindergarten through grade eight in the 2018-2019 school year.

By separate letters to DOE dated March 1, 2016, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e), commencing in the 2016-2017 school year, to accommodate the school’s prior expansion to grades four and five, and, in its second letter, for the school’s planned expansion to grades six through eight.

By separate letters dated April 20, 2016, DOE acknowledged petitioner’s March 1, 2016 requests for co-located space for the school’s expansion to grades four and five and for the school’s planned expansion to grades six through eight, but stated that “[w]e will not be extending an offer of space at this time.”[4]  This appeal ensued.

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 its statutory obligation to do so.  It seeks an order directing DOE to comply with its statutory obligation under Education Law §2853(3)(e)(5).

Respondent requests that the appeals be dismissed in their entirety.

Preliminarily, I note that these appeals were 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 any facilities 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 cost to the charter school (Education Law §2853[3][e][1]).

Here, petitioner requested co-location space in a public school building for the school’s fourth through eighth grade expansions by letters dated March 1, 2016.  The record indicates that in its April 20, 2016 responses, 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 cost to petitioner.  Instead, DOE indicated in its 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 cost 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 indicates that the school currently serves students in kindergarten through grade five in temporary co-located space that will no longer be available to house the school’s students after the 2015-2016 school year and that, commencing in the 2016-2017 school year, the school will serve its students in private space.  The record also indicates that the school expanded to serve students in grade four in the 2014-2015 school year, grade five in the 2015-2016 school year and, in January 2016, was approved by its charter entity to further expand to serve students in grades six through eight, expansions for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that the school requires additional space, commencing in the 2016-2017 school year, due to an expansion of grade levels that was approved by its charter entity for the 2014-2015 school year or thereafter.  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]).  I note that respondent’s obligation to provide access to facilities for the school’s fourth and fifth grade expansion is not extinguished merely because DOE previously provided the school co-location space for those grades.

Accordingly, having failed to make such an offer and given respondent’s continuing obligation under the law to provide access to facilities, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner commencing with the 2016-2017 school year and in each year of the school’s current charter term, rental assistance based on student enrollment in any newly-added grade level(s) for which the school 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, “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 ... 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, DOE must pay petitioner, commencing with the 2016-2017 school year and for each remaining year of the current charter term, an amount attributable to the school’s grade expansion that is equal to 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 (i.e. the 2016-2017 school year in the first year) and the positive difference of the charter school’s enrollment in the then-current school year (i.e. the 2016-2017 school year in the first year) minus the charter school’s enrollment in the school year prior to the first year of expansion (i.e. the 2013-2014 school year).  As noted above, commencing with the 2016-2017 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 (Education Law §2853[3][e][5]).

In this instance, petitioner also has not been afforded the opportunity to 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 respondent from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner, commencing with the 2016-2017 school year and for each remaining year of the charter term, an amount attributable to its expansion to fourth through eighth grade 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.

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