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Decision No. 17,419

Appeal of NEW YORK FRENCH-AMERICAN CHARTER SCHOOL[1] from action of the New York City Department of Education regarding school utilization.

Decision No. 17,419

(June 25, 2018)

Hodgson Russ LLP, attorneys for petitioner, Emina Poricanin and Luisa D. Johnson, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Thomas B. Roberts, Esq., of counsel

ELIA, Commissioner.--Petitioner, New York French-American Charter School (“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 other 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.

Petitioner is authorized by respondent’s Chancellor (“Chancellor”) to serve students in kindergarten through grade 8.  Its initial charter was issued in September 2009, authorizing it to serve students in kindergarten through grade 5.  In May 2014, its charter was first renewed for a term up through and including June 30, 2017.  In April 2017, its charter was renewed again for a term up through and including June 30, 2022. 

Petitioner currently serves students in kindergarten through grade 5 in Community School District (“CSD”) 3.  Although the parties dispute the exact date that petitioner submitted a Revision Application to its charter entity - the Chancellor - requesting to revise its charter to add grades 6 through 8, the record indicates that a request was submitted sometime in the fall of 2017.  By letter dated January 10, 2018, the Chancellor advised the New York State Education Department (“Department”) that petitioner’s request to revise its charter was approved.[2],[3]  It will expand to serve grade 6 in the 2018-2019 school year, grade 7 in the 2019-2020 school year, and grade 8 in the 2020-2021 school year.

On November 14, 2017, pursuant to Education Law §2853(3)(e), petitioner also submitted a written request for co-location space in a public school building for its grades 6 through 8.  By letter dated February 12, 2018, DOE acknowledged petitioner’s request, but stated that it would “not be extending an offer of space at this time.”[4]  This appeal ensued.

Petitioner asserts that DOE failed to offer it any facilities in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).

Respondent admits that it has not offered petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility and that petitioner is eligible for a finding in its favor, but requests that the appeal be dismissed in its entirety.

Preliminarily, I note that 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).[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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner asserts that DOE failed to offer it either a co-location site in a public school building or space in a privately-owned or other publicly-owned facility at respondent’s expense 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, DOE admits that it responded to petitioner’s November 14, 2017 request and that it has not offered space to petitioner.  However, in response to petitioner’s request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to petitioner.  As DOE has not offered any facilities at the expense of the city school district and at no cost to petitioner, it 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 petitioner currently serves students in kindergarten through grade 5.  Petitioner’s request to expand to serve students in grades 6 through 8 was approved by its charter entity, and petitioner will expand to serve students in grade 6 in the 2018-2019 school year, grade 7 in the 2019-2020 school year, and grade 8 in the 2020-2021 school year, expansions 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 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]).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner, commencing with the 2018-2019 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, rental assistance based on student enrollment in the newly-added grades for which the school has been approved to provide instruction.[6]  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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

Therefore, DOE must pay petitioner for the school’s newly-added grades 6, 7, and 8, commencing in the 2018-2019 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to its expansion to grades 6 through 8 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

In this instance, there is no evidence in the record that petitioner has been afforded the opportunity to select an alternative privately-owned site and respondent must afford petitioner 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 DOE from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED.

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 newly-added grades for each remaining year of the current charter term and for any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to the grade-level expansion that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

END OF FILE

 

[1] Although the school is referred to as “The New York French American Charter School” in the caption of petitioner’s pleadings, pursuant to §276.6 of the Commissioner’s regulations, I take administrative notice of records on file with the New York State Education Department indicating that the name of the school is “New York French-American Charter School.”

 

[2] Pursuant to §276.6 of the Commissioner’s regulations, I have also taken administrative notice of the records on file with the Department in this regard.

 

[3] In February 2018, the Board of Regents approved the revision to petitioner’s charter to expand to serve students in grades 6 through 8. 

 

[4] According to its petition, as a result of DOE’s failure to offer space, petitioner will incur rental costs and expenses.

 

[5] Section 276.11(c)(2) of the Commissioner’s regulations requires that the petition in an expedited appeal pursuant to Education Law §2853(3) contain a specific notice, or it shall be deemed non-expedited (8 NYCRR §276.11[c][2]-[3]).  Petitioner failed to include the exact language required by §276.11(c)(2) of the Commissioner’s regulations in such notice (see Appeal of Acosta, 54 Ed Dept Rep, Decision No. 16,782).  As petitioner’s notice did not comply with the regulatory requirements, its appeal was deemed to be a non-expedited appeal pursuant to §276.11(c)(3) of the Commissioner’s regulations.  Therefore, the provisions set forth in Part 275 of the Commissioner’s regulations, rather than those set forth in §276.11, apply to this appeal.

 

[6] To be eligible for an apportionment pursuant to Education Law §3602(6-g) where the charter school has prevailed in an appeal to the Commissioner pursuant to Education Law §2853(3)(e), DOE must document all expenses incurred pursuant to Education Law §2853(3)(e)(5) for each such charter school for the term of the charter indicated in the Commissioner’s decision, including any renewals pursuant to Education Law §2851(4), provided that the charter school serves the grades encompassed by the charter that was the subject of the Commissioner’s decision (see New York State Education Department, Update on Facilities Assistance Guidance for NYC Charter Schools, dated November 3, 2016).