* Subsequent History: Matter of Teaching Firms of America – Professional Preparatory Charter School v New York City Dept. of Educ.; Supreme Court, Albany County; Decision and Order dismissed petition to review; April 20, 2017. *

Appeal of TEACHING FIRMS OF AMERICA PROFESSIONAL PREPARATORY CHARTER SCHOOL[1] from action of the New York City Department of Education regarding school utilization.

Decision No. 16,922

(July 13, 2016)

Kushnirsky Gerber PLLC, attorneys for petitioner, Jordan Fletcher, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Lesley Berson Mbaye, Esq., of counsel

ELIA, Commissioner.--Petitioner, Teaching Firms of America Professional Preparatory Charter School (“TFOA” 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 in part.

Petitioner is authorized by the Chancellor of the City School District of the City of New York (“Chancellor”) and currently serves students in kindergarten through grade five in co-located space in Community School District (“CSD”) 16.  Its initial charter was issued in January 2010 for a five-year term, and in 2015, its charter was renewed for a term up through and including June 30, 2017.

On January 8, 2011, DOE posted 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 TFOA with P.S. 308 in building K308.  On March 1, 2011, respondent’s Panel for Educational Policy (“PEP”) approved the proposed co-location, beginning in the 2011-2012 school year.  On May 23, 2011, DOE issued a revised EIS and BUP, which, among other things, adjusted the projected enrollment of the schools for the 2011-2012 school year and adjusted the projected target building utilization for building K308 for the 2011-2012 school year.  According to the parties, on June 22, 2011, the PEP approved the revised EIS and BUP.  Pursuant to the revised EIS, TFOA would begin serving kindergarten and grade one in the 2011-2012 school year and would add one grade level each year through the 2015-2016 school year, when it would serve kindergarten through grade five.

The school first opened for instruction in the 2011-2012 school year, serving students in kindergarten and first grade and added one grade in each succeeding school year.  In the 2014-2015 school year, the final year of its initial charter term, the school served students in kindergarten through grade four.  In March 2015, in accordance with the Chancellor’s recommendation, the Board of Regents, in addition to extending the school’s charter for a term up through and including June 30, 2017, approved the school’s request to increase its authorized enrollment to 392 students.

Petitioner began serving grade five in the 2015-2016 school year.  In April 2016, in accordance with the Chancellor’s recommendation, the Board of Regents approved a revision to the school’s charter to add grade six and to increase the school’s authorized enrollment to 480 students, effective July 1, 2016.

Also in April 2016, DOE posted an amended EIS (“amended EIS”) and BUP (“amended BUP”) proposing the consolidation of Upper School @ P.S. 25 with P.S. 308 in building K308.  On April 20, 2016, the PEP approved the amended EIS and BUP.  According to the executive director of respondent’s Office of District Planning, pursuant to the amended BUP, TFOA received its adjusted baseline allocation based on the Citywide Instructional Footprint[2] and TFOA was “allocated sufficient space to accommodate its kindergarten through fifth grade students for the 2016-2017 school year and beyond.”

By email to DOE dated May 9, 2016, petitioner requested “additional DOE space to support [its] growth, expansion and realignment for the 2016-17 school year ....”[3]  In its email, petitioner indicated that, in the 2016-2017 school year, it would be operating a lower school for kindergarten through grade four and a middle school for grades five and six.  It further indicated that its current space in K308 was “not sufficient to house [its] current K-5 program, let alone [its] approved expanded program....”  By letter dated May 13, 2016, DOE acknowledged petitioner’s May 9, 2016 request for space, but stated that “[w]e will not be extending an offer of space for the 2016-2017 school year at this time.”  DOE also stated in its May 13, 2016 letter that “TFOA Professional Preparatory Charter School’s kindergarten through fifth grade is currently co-located in DOE space in building K308.”  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 contends that petitioner’s request for space for its fifth grade for the 2016-2017 school year is moot and that petitioner cannot demonstrate a right to the relief requested regarding its fifth grade.  Respondent requests that that the appeal be dismissed in its entirety.

Preliminarily, I will address a procedural issue.  Petitioner submitted a reply with exhibits and a reply memorandum of law.  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.  For example, petitioner’s reply documents contain belated, new assertions, including allegations that the space provided by DOE for petitioner’s fifth grade is not reasonable, appropriate and comparable.  Such allegations should have been set forth in the petition and may not now be raised in petitioner’s reply.[4]

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 additional 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, by email dated May 9, 2016, petitioner requested co-location space in a public school building for the school’s fifth and sixth grade expansions commencing in the 2016-2017 school year.  The record indicates that, in its May 13, 2016 response, DOE stated that it would “not be extending an offer of space at this time.”  DOE also reiterated that the school’s kindergarten through fifth grade is co-located in DOE space in building K308.

The appeal must be dismissed with respect to petitioner’s claim for its fifth grade expansion.  Petitioner seeks space, commencing in the 2016-2017 school year, for its fifth grade expansion.  However, the record indicates that, in the 2011-2012 school year, DOE first provided co-location space to petitioner to accommodate its expansion to serve students in kindergarten through grade five.  The record further indicates that petitioner first began serving grade five in the 2015-2016 school year and DOE continues to provide space for that grade.  I note that the amended EIS, which is dated April 12, 2016, provides space to the school’s kindergarten through fifth grade for at least the 2016-2017 school year, the year for which petitioner seeks relief and the final year of the current charter term.  As DOE is providing space for petitioner’s fifth grade for the 2016-2017 school year, petitioner has not established a legal right to additional space for its fifth grade students.  In addition, as noted above, petitioner has failed to allege in the petition that the space provided by DOE for its fifth grade was insufficient to accommodate the expansion to fifth grade.  Accordingly, on this record, I cannot conclude that petitioner has demonstrated that it requires additional space due to its fifth grade expansion.  As petitioner has not demonstrated that it requires additional space due to its fifth grade expansion, it has not carried its burden of proof and the appeal must be dismissed.

With respect to the school’s request for space for its sixth grade expansion, as noted above, 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 in this case indicates that petitioner currently serves students in kindergarten through grade five.  In 2016, petitioner’s request to expand to serve students in grade six was approved by its charter entity.  Petitioner will expand to serve students in grade six in the 2016-2017 school year, 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 with its expansion to grade six in the 2016-2017 school year.  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 for its grade six expansion (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 for the 2016-2017 school year, the final year of the current charter term, rental assistance based on student enrollment in petitioner’s newly-added grade six 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, “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 an amount attributable to its grade six expansion for the 2016-2017 school year, the final year of its current charter term, 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 current school year (i.e. the 2016-2017 school year) and the positive difference of the charter school’s enrollment in the current school year (i.e. the 2016-2017 school year) minus the charter school’s enrollment in the school year prior to the first year of expansion (i.e. the 2015-2016 school year).  As noted above, for the 2016-2017 school year, the final year of the current charter term, DOE is obligated to pay for the facilities for the charter school’s grade six expansion (Education Law §2853[3][e][5]).

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 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.

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

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, for its grade six expansion in the 2016-2017 school year, 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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