Appeal of URBAN ASSEMBLY CHARTER SCHOOL FOR COMPUTER SCIENCE, from action of the New York City Department of Education regarding school utilization.

Decision No. 18,260

(April 3, 2023)

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, Marilyn Richter, Esq., of counsel

ROSA., Commissioner.--Petitioner, Urban Assembly Charter School for Computer Science (“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 the school, as required by Education Law § 2853 (3) (e).  The appeal must be sustained to the extent indicated.

Petitioner is authorized by the Board of Trustees of the State University of New York (“SUNY”) to serve students in grades 9 through 12.  According to petitioner, its initial charter was approved in August 2016.  Its charter was subsequently renewed in March 2023.  According to petitioner, it commenced formal instruction in the 2018-2019 school year, beginning with grade 9, and continued to expand to serve students in grades 9 through 12 by adding one grade per year through the 2022-2023 school year.  According to petitioner, it is currently co-located in space provided by respondent; however, subsequent to the 2023-2024 school year, respondent will not continue to offer co-located space to petitioner for its grades 9 through 12.^[1]

On February 7, 2023, a written request for co-location was submitted for petitioner’s grades 9 through 12, pursuant to Education Law § 2853 (3) (e).  By letter dated February 9, 2023, 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, at no cost to the school, in violation of Education Law § 2853 (3) (e).  As relief, it seeks an order directing DOE to pay petitioner, commencing with the 2024-2025 school year and continuing thereafter, rental assistance in accordance with Education Law § 2853 (3) (e) (5).

Respondent admits that it did not offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to the school.

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).

DOE is required by statute to decide whether it would offer petitioner co-located space for the 2024-2025 school year (and onward) or rental assistance.  Here, DOE did neither, acceding to petitioner’s unilateral request to cease co-location and, later, denying petitioner’s request for rental assistance.  As such, it is unclear what DOE offered to petitioner.  DOE’s denial letter is ambiguous, as it merely states that DOE would “not be extending an offer of space at this time.”  Therefore, the matter must be remanded to DOE to decide which of these two statutory options it has elected to offer to petitioner as required by Education Law § 2853 (3) (e).  Petitioner may appeal any adverse decision to the Commissioner within 30 days of such decision (Education Law § 310 [7]).

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of this decision, DOE comply with the requirements of Education Law § 2853 (3) (e) (5) in accordance with this decision and decide whether to offer petitioner co-located space or rental assistance in an amount calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).

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