Appeal of ASCEND CHARTER SCHOOLS, on behalf of CYPRESS HILLS ASCEND CHARTER SCHOOL, from action of the New York City Department of Education regarding school utilization.

Decision No. 17,476

(August 7, 2018)

Herrick, Feinstein LLP, attorneys for petitioner, Leah Kelman and Maame Esi Austin, Esqs., of counsel

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

ELIA, Commissioner.--Petitioner, Ascend Charter Schools, an existing education corporation with authority to operate Cypress Hills Ascend Charter School (“Cypress Hills Ascend” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner a co-location site for the school 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 Trustees of the State University of New York (“SUNY”) to operate the school, which is approved to serve students in kindergarten through grade 5 during its first charter term.[1]^,[2]  According to petitioner, when the school first opens for instruction in the 2018-2019 school year, it will serve students in kindergarten and grade 1, and will add one grade level in each succeeding school year.

On June 6, 2018, petitioner submitted a written request for co-location for Cypress Hills Ascend’s kindergarten through grade 4, pursuant to Education Law §2853(3)(e), using DOE’s online “Portal.”[3]  By letter dated June 12, 2018, DOE acknowledged petitioner’s request for space for the school, 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 for the school, in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance for Cypress Hills Ascend, in accordance with Education Law §2853(3)(e)(5).

In its answer, respondent admits that it failed to offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for Cypress Hills Ascend at no cost to petitioner, 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 any facilities for the school 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 are approved by their charter entity to first commence instruction 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 June 6, 2018 request and that it has not offered space to petitioner for the school.  However, in response to petitioner’s request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space for the school 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 for the school 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.

In accordance with Education Law §2853(3)(e)(5), DOE is, therefore, at this time, required to pay petitioner rental assistance based on the school’s student enrollment in kindergarten through grade 4 - the grades requested by petitioner[4] and for which the school has been approved to provide instruction - during its 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[5] (see Appeal of Our World Neighborhood Charter School, 56 Ed Dept Rep, Decision No. 17,065; Appeal of Uncommon New York City Charter School, 56 id., Decision No. 17,010; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).  I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment, not the enrollment projections set forth in the charter, for each year of the charter term.  Specifically, with respect to a new charter school “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 formation of the new charter school...” that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

The amounts payable to a charter school in its first year of operation shall be based on the projections of initial-year enrollment set forth in the charter until actual enrollment is reported to the school district by the charter school (see Education Law §2856[1][b]).  Such projections shall be reconciled with the actual enrollment at the end of the school’s first year of operation, and any adjustment shall be made to payments during the school’s second year of operation (see Education Law §2856[1][b]).

The record, in this case, indicates that the school will first commence instruction in the 2018–2019 school year serving students in kindergarten and grade 1 and will expand one grade level in each succeeding school year until it serves students in kindergarten through grade 5 in the 2022-2023 school year.  Accordingly, pursuant to Education Law §2853(3)(e)(5) and petitioner’s request, DOE must pay petitioner for the requested grades - kindergarten through grade 4 - in each year of the school’s 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 the formation of the new charter school that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).  As noted above, DOE is obligated to pay for kindergarten through grade 4 in the newly-opened charter school in each year of the initial 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; the amount payable must be based on the charter school’s actual current year enrollment (see Appeal of Our World Neighborhood Charter School, 56 Ed Dept Rep, Decision No. 17,065; Appeal of Uncommon New York City Charter School, 56 id., Decision No. 17,010; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).

In this instance, there is no evidence in the record that petitioner has been afforded the opportunity to select an alternative privately-owned site for the school 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 for the school in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner for kindergarten through grade 4 an amount attributable to the formation of the new charter school that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

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