Appeal of SONYA HAMPTON, individually and as parent of JERRY HAMPTON, JR., KAREN MCLEAN, individually and as parent of SHAWKEEM and MICAH DORE, and LAURIE FREY from action of the New York City Department of Education and Success Academy Charter School - Harlem 4 regarding school utilization.

Decision No. 17,231

(October 27, 2017)

Zachary W. Carter, Corporation Counsel, attorney for respondent New York City Department of Education, Leslie Berson Mbaye, Esq., of counsel

Daniel Soleimani, Esq., attorney for respondent Success Academy Charter School – Harlem 4

ELIA, Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of grades 5 through 8 of the Success Academy Charter School - Harlem 4 (“SACS – Harlem 4”) (collectively “respondents”) beginning in the 2014-2015 school year in a public school building.  The appeal must be dismissed.

Petitioner McLean is the parent of children who attended school at P.S. 149 Sojourner Truth in Manhattan, New York (“P.S. 149”) when this appeal was filed in the 2013-2014 school year.  Petitioners Hampton and Frey do not specify the school in which their children are enrolled.  P.S. 149 serves students in kindergarten through grade 8 and is located in tandem buildings[1] M149 and M207 (“M149/M207 building”).  It also has a pre-kindergarten program.  P.S. 149 is co-located in the M149/M207 building with P.S. 811 Mickey Mantle School (“P811M@M149”), a public “District 75 School” that serves elementary-aged students with disabilities, and Success Academy Charter School – Harlem 1 (“SACS – Harlem 1”).  Also located at the M149/M207 building is Harlem Children’s Zone, a community-based organization that operates a pre-kindergarten program.

SACS Harlem - 4 is authorized to serve students in kindergarten through grade 8.  It serves students in kindergarten through grade 4 in building M113 where it is co-located with P.S. 241 and Opportunity Charter School. 

On August 30, 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 SACS - Harlem 4’s grades 5 through 8 in building M149/M207 commencing in the 2014-2015 school year.  A public hearing on the co-location proposal was held on October 10, 2013.  On October 15, 2013, the Panel for Educational Policy (“PEP”) voted to approve the proposal.  This appeal ensued.

Thereafter, the Chancellor of the City School District of the City of New York (“Chancellor”) decided to review any proposals concerning the grade reconfiguration, re-siting and co-location of charter and district schools approved by the PEP between October and December 2013.  Based on that review, DOE determined to withdraw 9 of the 49 proposals approved by the PEP between October and December 2013, including the co-location of SACS - Harlem 4’s grades 5 through 8 in building M149/M207.[2]

Pursuant to the Commissioner’s regulations, by letter dated July 11, 2014 from my Office of Counsel, respondents were directed to submit information as to whether the proposed co-location of grades 5 through 8 of SACS – Harlem 4 in building M149/M207 beginning in the 2014-2015 school year would be implemented or whether an alternative location for SACS – Harlem 4 had been offered and accepted.  Both respondents submitted attorney affirmations stating that SACS – Harlem 4 had accepted DOE’s offer of space in another building and that the proposed co-location in building M149/M207 would not be implemented.

Petitioners assert that, in co-locating SACS - Harlem 4 in building M149/M207, DOE has failed to comply with space allocation standards set forth in the 2009 Instructional Footprint but, instead, applied an allegedly incorrect 2011 Instructional Footprint.  They request, among other things, that I annul the PEP’s October 15, 2013 approval of the proposal to co-locate SACS - Harlem 4’s grades 5 through 8 in building M149/M207.

In their answers, respondents request that the appeal be dismissed in its entirety on several procedural grounds, as well as on the merits.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Here, petitioners seek the annulment of the October 15, 2013 approval of the proposal to co-locate SACS - Harlem 4’s grades 5 through 8 in building M149/M207.  However, the Chancellor determined not to implement the proposed co-location and announced that determination in February 2014.  In addition, in separate affirmations subsequently submitted in response to my Office of Counsel’s request, respondents’ attorneys state that SACS – Harlem 4 accepted DOE’s offer of space in another building and, consequently, the co-location would not be implemented.  Thus, petitioners’ request for relief is moot warranting dismissal of the appeal.

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

THE APPEAL IS DISMISSED.

END OF FILE