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Decision No. 17,434

Appeal of HARLEM HEBREW LANGUAGE ACADEMY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 17,434

(July 5, 2018)

Cohen Schneider Law, P.C., attorneys for petitioner, Cliff S. Schneider and Cory S. Storch, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, David S. Thayer, Esq., of counsel

ELIA, Commissioner.--Petitioner, Harlem Hebrew Language Academy 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 in part.

Petitioner is authorized by the Board of Regents (“Regents”) to serve students in kindergarten through grade 8.  Its initial charter was issued in 2012, authorizing it to serve students in kindergarten through grade 5.  In January 2018, its charter was renewed for a term up through and including June 30, 2022, and revised to authorize it to expand to serve students in grades 6 through 8. 

Petitioner currently serves students in kindergarten through grade 5 in private space in Community School District (“CSD”) 3.[1]  It 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.

On May 9, 2018, petitioner submitted a written request for co-location for its grade 6, pursuant to Education Law §2853(3)(e), using DOE’s online “Portal.”[2]  By letter dated May 14, 2018, DOE acknowledged petitioner’s request, but stated that it would “not be extending an offer of space at this time.”  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 petitioner, beginning with the 2018-2019 school year and continuing thereafter, an amount attributable to the school’s grade level expansion for grades 6 through 8.

Respondent admits that it has not offered petitioner space 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).  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 no cost to petitioner 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 May 9, 2018 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.[3]  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, at this time, pursuant to Education Law §2853(3)(e)(5) and petitioner’s request, 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 grade encompassed by the charter referenced herein, rental assistance based on student enrollment in the newly-added grade 6 - the grade requested by petitioner[4] - for which the school has been approved to provide instruction.[5]  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 its newly-added grade 6, commencing in the 2018-2019 school year, and in each remaining year of the current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grade encompassed by the charter referenced herein, an amount attributable to its expansion to grade 6 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 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 newly-added grade 6, 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 grade 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] I note that petitioner previously requested space for a planned expansion through grade 5, which was denied by DOE, and, in Appeal of Harlem Hebrew Language Academy Charter School (54 Ed Dept Rep, Decision No. 16,742), petitioner prevailed in obtaining rental assistance for those grades for the initial charter term.  Subsequent decisions (see Appeal of Uncommon New York City Charter Schools, 56 Ed Dept Rep, Decision No. 17,009; Appeal of Uncommon New York City Charter Schools, 56 id., Decision No. 17,010; Appeal of Brooklyn Emerging Leaders Academy Charter School, 56 id., Decision No. 17,015) and New York State Education Department Guidance have clarified that continued payment is authorized in subsequent charter renewal terms under certain conditions, as discussed infra.

 

[2] Request for Charter School Co-location in DOE Facilities, Item 2(11).

 

[3] According to petitioner’s Senior Director of Operations, as a result of DOE’s failure to offer space, petitioner will incur rental costs and expenses.

 

[4] I have reviewed petitioner’s May 9, 2018 request for space and note that the information on the Portal form is inconsistent and unclear.  While petitioner may have intended to request, and could have requested, space for its entire approved grade expansion, i.e. grades 6 through 8, in response to Item 2(11), which specifically asks the grades requested for co-location, petitioner specifically indicated that it was requesting space for “6th Grade.”  As petitioner requested co-location space only for grade 6, any rental assistance to which petitioner would be entitled for purposes of petitioner’s May 9, 2018 request and the instant appeal is limited accordingly (see Appeal of Bronx Charter School for Excellence, 57 Ed Dept Rep, Decision No. 17,420; Appeal of Zeta Charter Schools – New York City, 57 id., Decision No. 17,324; Appeal of Brilla College Preparatory Charter School, 54 id., Decision No. 16,735; Appeal of Metropolitan Lighthouse Charter School, 54 id., Decision No. 16,770).

 

[5] 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).