Appeal of NICOLE CAMPBELL, on behalf of CALEB CAMPBELL, et al.,* from action of the New York City Department of Education and The New American Academy Charter School[1] regarding school utilization.

Decision No. 16,948

(August 18, 2016)

Joyce Elie, Esq., attorney for petitioners

Zachary W. Carter, Corporation Counsel, attorney for respondent New York City Department of Education, Kate McMahon, Esq., of counsel

Cohen Schneider & O’Neill LLP, attorneys for respondent The New American Academy Charter School, Cliff S. Schneider and Nisha Ragha, Esqs., of counsel

ELIA, Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of The New American Academy Charter School (“New American”) in a public school building.  The appeal must be dismissed.

Petitioners are parents of children who will attend school at P.S. 233 Langston Hughes (P.S. 233) in the 2016-2017 school year.  P.S. 233 is a district elementary school that serves students in kindergarten through grade five and is located in Building K233 (“K233” or “the building”) in Community School District 18 (“CSD 18”).  P.S. 233 also offers a pre-kindergarten program. 

New American is an existing charter school authorized to serve students in kindergarten through grade five.  In the 2015-2016 school year, New American served students in kindergarten through grade three in building K415 in CSD 18 where it was co-located with three district high schools.  Commencing in the 2016-2017 school year, New American will serve students in kindergarten through grade four and in the 2017-2018 school year, it will serve students in kindergarten through grade five.

On March 1, 2016, 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 re-siting[2] and co-location of New American in building K233 commencing in the 2016-2017 school year.

A public hearing on the proposed co-location was held at K233 on March 31, 2016.  A second public hearing was held at K415 on April 7, 2016.  On June 22, 2016, DOE’s Panel on Educational Policy (“PEP”) voted to approve the co-location of New American in the building beginning in the 2016-2017 school year.  This appeal ensued.

Petitioners assert that DOE failed to advise the P.S. 233 community of essential aspects of the co-location process which impacted community participation and resulted in an arbitrary decision by the PEP.  Petitioners also assert that DOE failed to provide copies of the EIS in the “languages of the community.”  In addition, petitioners assert that the EIS and BUP are inaccurate, that the EIS failed to consider the impact of the co-location on P.S. 233 students, and that the co-location poses safety concerns and will have a negative impact on the community.

Respondent DOE denies petitioners’ allegations and contends that its actions in preparing the proposal and engaging the community were neither arbitrary nor capricious and were at all times lawful, proper and in substantial compliance with applicable law.   DOE further contends that the PEP’s determination was a rational act of professional educational discretion and was not arbitrary, capricious or contrary to law and that petitioners have not met their burden of demonstrating a clear legal right to the relief requested.  Respondent New American asserts that petitioners have failed to state a claim for relief and that errors, if any, contained in the EIS and BUP are de minimus and do not prejudice petitioners.  In addition, both respondents assert that the petition was improperly verified.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which was added in 2010 (Chapter 101 of the Laws of 2010) and provides for an expedited process for appeals to the Commissioner of Education regarding the location or co-location of a charter school within a public school building in the City School District of the City of New York.  Specifically, the expedited process is available for appeals involving:

the determination to locate or co-locate a charter school within a public school building and the implementation of and compliance with the building usage plan developed pursuant to [Education Law §2853(3)(a-3)] ... [and/or] the revision of a building usage plan ... on the grounds that such revision fails to meet the standards set forth in [Education Law §2853(3)(a-3)(2)(B)] (Education Law §2853[3][a-5]).

The petition must be dismissed for lack of proper verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition must be verified by the oath of at least one of the petitioners.  Here, none of the petitioners verified the petition.  Instead, the verification is signed by petitioners’ counsel, Joyce Elie, who indicated in her verification that she verified the petition instead of one of the petitioners “because the petitioners are not within the county where [she] maintains her office.”  Ms. Elie is not a petitioner, and therefore, her verification is improper and the appeal must be dismissed (see Appeal of Acosta, 54 Ed Dept Rep, Decision No. 16,782; Appeal of Valdez, 54 id., Decision No. 16,651).

Additionally, petitioners lack standing to raise certain claims and the appeal must be dismissed as to those claims.  Specifically, petitioners assert that due to the co-location, space will no longer be available for students with autism or food allergies.  However, no petitioner alleges that he or she is the parent of a student with autism or a food allergy.  Consequently, I find that petitioners lack standing to the extent they attempt to raise claims on behalf of such students (Appeal of Valdez, 54 Ed Dept Rep, Decision No. 16,651; Appeal of McCall, et al., 51 id., Decision No. 16,257).  Similarly, no petitioner alleges that he or she is the parent of a student who would be admitted as an “Over-the-Counter” student and petitioners lack standing to the extent they attempt to raise claims on behalf of such students.  Nor does any petitioner allege that he or she requested specific translations and that such translations were not provided.[3]  Petitioners lack standing to the extent they attempt to raise such claims on behalf of other members of the P.S. 233 community.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009).  Among other things, Education Law §2590-h(2-a)(a) requires the Chancellor to prepare an EIS for any proposed school closing or “significant change in school utilization,” including the phase-out, grade reconfiguration, re-siting, or co-location of schools, for any public school located within the City School District.  The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  An EIS is required to include:

1. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;
2. the impacts of the proposed school closing or significant change in school utilization to any affected students;
3. an outline of any proposed or potential use of the school building for other educational programs or administrative services;
4. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;
5. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building's special features;
6. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and
7. information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status. 

Further, pursuant to Education Law §2853(3)(a-3), after a public school building has been selected for a proposed co-location, DOE is required to develop a BUP which must be included within the EIS.  At a minimum, the BUP must include:

1. the actual allocation and sharing of classroom and administrative space between the charter and non-charter schools;
2. a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds which assures equitable access to such facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students;
3. justification of the feasibility of the proposed allocations and schedules set forth in clauses (A) and (B) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;
4. building safety and security;
5. communication strategies to be used by the co-located schools; and
6. collaborative decision-making strategies to be used by the co-located schools including the establishment of a shared space committee...(Education Law §2853 [3][a-3][2][A-F]).

The appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (see Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Espinet, et al., 50 id., Decision No. 16,212; Appeal of Battis, et al., 50 id., Decision No. 16,115).  In addition, and also with respect to a BUP, the Commissioner will not substitute his or her judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building (see Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Litichevsky, et al., 50 id., Decision No. 16,254).  Accordingly, absent proof that DOE’s determination regarding the allocation and shared use of space lacked a rational basis, it will not be set aside (Appeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  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).

Petitioners assert that DOE did not provide the P.S. 233 community adequate due process which limited community participation and resulted in an arbitrary decision by the PEP.  First, petitioners assert that DOE did not hold the June 22, 2016 “public hearing” within 30 to 45 days following the posting of the EIS as required by Education Law §2590-h(2-a)(d).  However, contrary to petitioners’ claim, the record indicates that the EIS was posted on March 1, 2016 and public hearings were held on March 31, 2016 and April 7, 2016, within the statutorily prescribed time frame.  Petitioners appear to be erroneously calculating the time frame between the posting of the EIS in March 2016 and the PEP meeting in June 2016, rather than between the posting of the EIS and the March and April 2016 public hearings.  I find that petitioners have failed to carry their burden with respect to this claim.

Similarly, petitioners have failed to support their conclusory assertion that “the co-location had already been decided.”  As an example that the co-location had already been decided, petitioners claim that the P.S. 233 administration was never notified of the procedure to properly propose another site for New American.  However, petitioners provide no legal authority to support their contention and no petitioner alleges that he or she is an administrator at P.S. 233. 

Moreover, other than their anecdotal and speculative assertions, petitioners have produced no evidence to indicate that DOE acted arbitrarily in approving the co-location proposal.  To the contrary, the record indicates that the EIS was posted on March 1, 2016 after which DOE established dedicated phone and email lines to accept public comments. The record further indicates that, in addition to holding two joint public hearings, DOE representatives conducted a “walkthrough” of the building in February 2016, and held a “debrief” with representatives of the P.S. 233 community.  In March 2016, DOE representatives attended a community meeting at K415 and a parent meeting at P.S. 233 and were available to answer questions and provide feedback.  In April 2016, DOE representatives conducted another “walkthrough” of K233 and were available to answer questions and address concerns from representatives of the impacted community.  According to the June 21, 2016 Public Comment Analysis, approximately 400 members of the public attended the March 31, 2016 public hearing and 37 commented.  Approximately 200 members of the public attended the April 7, 2016 public hearing and 41 commented.  In addition, DOE received 13 voice mails and 53 emails.  In its June 21, 2016 Public Comment Analysis, DOE summarized and addressed the issues raised during the public comment process.  Based on this record, I find that DOE provided sufficient information to inform public comment (see Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115) and afforded the public opportunity to submit comments on the proposed item.  While petitioners may disagree with DOE’s decision, on the record before me, I cannot conclude that they have carried their burden of establishing that DOE acted arbitrarily in its determination to co-locate New American in K233.

Petitioners also assert that the EIS and BUP were inaccurate because P.S. 233’s pre-kindergarten program was not included in the school’s grade span,[4] thereby allegedly reducing P.S. 233’s student body by nearly 100 students and resulting in flawed calculations regarding the building utilization rate.  However, contrary to petitioners’ assertion, both the EIS and BUP account for P.S. 233’s pre-kindergarten program.  In addition to other discussions in the EIS regarding P.S. 233’s pre-kindergarten program, the EIS, in Appendix C, explains that the Instructional Footprint[5] assumes that classes are self-contained for all pre-kindergarten programs.  Further, the BUP includes P.S. 233’s pre-kindergarten program in its charts summarizing the total enrollment, programs, grade spans and number of sections at K233 in the 2015-2016 school year, the year prior to the commencement of the co-location, through the 2017-2018 school year.  With respect to petitioners’ claim regarding the building’s utilization rate, the EIS explains how building utilization rates are calculated and states that the methodology is consistent with the manner in which DOE conducts planning and calculates space allocations for all schools.  Appendix A of the EIS provides a more detailed explanation of the building utilization rate.  The EIS indicates that in the 2015-2016 school year, the building was “under-utilized,” operating at a rate of 53 percent, and, in the 2017-2018 school year, when New American is at full capacity, the building utilization rate is projected to be 93 percent to 106 percent.[6]  The EIS also discusses the capacity of K233 and indicates that for the 2016-2017 school year both schools will receive their baseline or adjusted baseline allocations.  In addition, the BUP indicates that, in the 2017-2018 school year, when New American is at full capacity, P.S. 233 will be allocated one quarter-size room in excess of its adjusted baseline allocation.  I find that petitioners have failed to carry their burden on this issue.

Petitioners also allege that the co-location poses safety and security concerns such as overcrowding and capacity, particularly with respect to the cafeteria.  Other than conclusory assertions, however, petitioners provide no evidence to support their position that the co-location will be unsafe.  As noted above, the BUP must include building safety and security information.  Here, the BUP provides that every school must have a School Safety Committee and further explains the committee’s role and responsibilities, including developing a comprehensive School Safety Plan which is submitted to the New York City Police Department (“NYPD”) for final approval and certification.  Pursuant to the BUP, School Safety Plans are updated annually in order to address changing security needs and the School Safety Committee can recommend changes at any other time when it is necessary to address security concerns (see e.g., Appeal of Garcia, 54 Ed Dept Rep, Decision No. 16,749; Appeal of Williams, et al.,  53 id., Decision No. 16,548).

Petitioners further allege that the EIS failed to consider the impact of the co-location on P.S. 233 students.  Specifically, petitioners speculate that the co-location will result in the loss of special education classrooms and that special education services will be compromised.  However, the EIS indicates that P.S. 233 serves students requiring special education services including students currently enrolled in integrated co-teaching (“ICT”), special education teacher support services, self-contained special education classes and related services.  The EIS further provides that students with disabilities will continue to receive services in accordance with their individual education programs.  With respect to space allocation, the EIS provides that in the 2016-2017 school year both schools will receive their baseline or adjusted baseline allocations pursuant to the Footprint and in the 2017-2018 school year P.S. 233 will receive its full allocation of instructional and administrative space.  In addition, the BUP explains that the Footprint allocates one full-size classroom for each ICT and a full- or half-size classroom to accommodate each self-contained special education section served by the school.  Other than conclusory assertions, petitioners provide no evidence to support their claim.

Similarly, petitioners present no evidence to support their speculative claim that P.S. 233 may be losing some of the specialty programs it offers.  According to DOE, and as petitioners acknowledge, DOE has been working closely with the principal of P.S. 233 to ensure the continuity of specialty programs.

Petitioners appear to argue that the co-location will have a negative impact on the community given each school’s different admission requirements.  They claim that enrolling students with special needs is not a priority for New American.  However, the EIS explains the admission policy for each school and indicates that the co-location is not anticipated to have an impact on the options available to elementary school students in CSD 18.  Petitioners offer no evidence to the contrary or to otherwise support their contention.

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

THE APPEAL IS DISMISSED.

END OF FILE

* The following individuals are also listed as petitioners: GEORGIA WAITE, on behalf of JOISAH WAITE-BROWN; ASHLEY SOLOMON, on behalf of ANIYAH SOLOMON-MCKOY; TAMEKA PHILLIPS, on behalf of TAMIA PHILLIPS; PARIS WORLD, on behalf of ELI BROWN; TAMEKA MORRIS, on behalf of KATELYN MORRIS; DENISE DURRANT, on behalf of MATTHEW DURRANT; NIGEL POWELL, on behalf of KYLIA CUMMINGS and KYRA CUMMINGS; and a STUDENT WITH A DISABILITY, by her parent.