Appeal of BRONX CHARTER SCHOOL FOR EXCELLENCE from action of the New York City Department of Education regarding school utilization.

Decision No. 18,134

(June 15, 2022)

Cohen Schneider Law, P.C., attorneys for petitioner, Cliff S. Schneider and Mark J. Fink, Esqs., of counsel

Hon. Sylvia Hinds-Radix, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

ROSA., Commissioner.--Petitioner, Bronx Charter School for Excellence, an existing education corporation with authority to operate Bronx Charter School for Excellence 3 (“BCSE 3” 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 the school, as required by Education Law § 2853 (3) (e).  The appeal must be sustained.

Petitioner is authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate multiple charter schools, including BCSE 3.  According to petitioner, the school currently serves students in kindergarten through grade 5.[1]  Petitioner further states that, in November 2021, the school’s charter was renewed and revised to authorize the school to expand to serve students in grades 6 and 7.  The school will expand to serve students in grade 6 in the 2022-2023 school year and grade 7 in the 2023-2024 school year.[2]

On April 27, 2022, a written request for co-location was submitted for the school’s grades 6 and 7, pursuant to Education Law § 2853 (3) (e).  By letter dated April 29, 2022, DOE acknowledged the request for space, 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 a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the school, at no cost to the school, in violation of Education Law § 2853 (3) (e).  As relief, it seeks an order directing DOE to pay rental assistance for the school’s grades 6 and 7 in accordance with Education Law § 2853 (3) (e) (5).

Preliminarily, I will address a procedural issue.  Respondent filed a late answer.  An answer in a charter school co-location appeal must be served within ten business days of service of the petition (8 NYCRR § 276.11 [e] [1]).  If an answer is not served and filed in accordance with the provisions of the Commissioner’s regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the Commissioner (8 NYCRR § 276.11 [c] [2]).  A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (8 NYCRR § 276.11 [e] [1]).

The petition was served upon respondent on May 13, 2022.  Respondent, therefore, was required to serve its answer by May 27, 2022, but did not do so until June 3, 2022.  Respondent’s counsel explains that the “delay was caused entirely by an administrative error,” that it “was not willful, but was inadvertent,” and that counsel “promptly moved to correct the mistake when it was discovered.”  I do not accept the law office failure as good cause for the untimely submission (Appeal of Democracy Prep Endurance Charter School, 59 Ed Dept Rep, Decision No. 17,735).  Under these circumstances, I decline to permit the late filing (Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,572; Appeal of Murphy, 57 id., Decision No 17,234).  Accordingly, I have not considered respondent’s late answer and the factual allegations set forth in the petition will be deemed to be true statements.  

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 a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for BCSE 3’s grades 6 and 7, at no cost to the school, 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 responded to the April 27, 2022 co-location request but did not offer petitioner a co-location site for BCSE 3 in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to the school.  However, in response to the 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 the school (see Appeal of Elm Community Charter School, 57 Ed Dept Rep, Decision No. 17,375; Appeal of South Bronx Community Charter High School, 55 id., Decision No. 16,908).  As DOE has not offered any facilities at the expense of the city school district and at no cost to the school, 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 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 in this case indicates that BCSE 3 was approved by its charter entity to expand to serve students in grades 6 and 7.  The school will expand to serve students in grade 6 in the 2022-2023 school year and grade 7 in the 2023-2024 school year, expansions for which it requires additional space.[3]  Therefore, on the record before me, I find that petitioner has established that BCSE 3 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 for the school (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 for the school, commencing with the 2022-2023 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.[4]  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 grade 6, commencing in the 2022-2023 school year, and grade 7, commencing in the 2023-2024 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 and 7 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 for the school, and respondent must afford petitioner an opportunity to do so.  Petitioner must present DOE with evidence of the amount of the actual rental cost of an alternative privately-owned site for the school attributable to the grade-level expansion 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.

IT IS ORDERED that respondent comply with the requirements of Education Law § 2853 (3) (e) (5) in accordance with this decision and pay for the school’s 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).

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