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Uploaded by samanthaj on May 17, 2012

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Uploaded by samanthaj on May 17, 2012

Description: Dear concerned citizens, <br /> <br /> Please view this document to learn more about the rights Charter Schools have to co-locate within New York State public schools. In the following culmination term paper, I discuss five relevant New York court cases on the subject. All cases have resulted in a judicial opinion and I have strengthened the work by making reference to relevant case and statute law. I have only concentrated on the couT's reasoning for each law suit brought before it. I reserve my own opinions for discussion using another outlet.<br /> <br /> However, I am sure you will be amazed by the phenomenon of the relationship between the Department of Education and Charter Schools--and the implied affect on New York public school students and families. Considering the particularly poor shape New York CIty public schools are in, there is currently a wave to nullify the degradation with Charter School development. What do you think about it? Is this fair? What future do our public schools have--should they all be replaced by Charter Schools, at any cost? What do you think about all of this? What is your philosophy on the subject?<br /> <br /> Thank you for your time and consideration.<br /> ------------------------------------------------------------------------------------------------------------------------------------------<br /> <br /> Samantha J.<br /> <br /> Senior Legal Seminar<br /> <br /> Professor Donsky<br /> <br /> Culmination Project<br /> <br /> May 14, 2012<br /> <br /> <br /> Charter School’s Right to Co-locate Within Public Schools in New York State<br /> <br /> Charter Schools have been an emerging scholastic force in New York State since 1999 (Herszenhorn, David M., “Report Faults Charter School in New York,” New York Times, January 13, 2004, http://www.nytimes.com) Charter Schools were first put into place to give parents a choice (Bowen, Roger W., “Charter Schools, Then What?” New York Times, January 13, 1999, http://www.nytimes.com) in the quality of school environment and instruction (curriculum). Since that time, Charter Schools have become a controversial subject for New York State parents on a variety of issues and concerns. One overwhelming concern has been the co-location of Charter Schools within public school buildings. Affected public school families have been in an uproar about this and have sought judicial intervention in an attempt to stop the occurrence of Charter School co-location within their school/district. Parents and community leaders want to know, what right do Charter Schools have for co-location within public school buildings in New York State?<br /> <br /> The main issues brought up by interested parties regarding the co-location of Charter Schools into public school space have been, (1) the public school part may be closed down in an effort to accommodate Charter Schools proposing to occupy that same space; or (2) Charter Schools will cause overcrowding of the public school building part, causing a detrimental effect on the education and/or well being of the children of the public school part; or (3) Charter Schools are able to bypass paying rent for use of the public space and therefore cause an economic deficiency within the Department of Education that could be used toward supporting traditional public school educational efforts (including teacher training, books, programs, technology, and facility improvements—all of which could create significant educational progress and growth for traditional public school students). Parties seeking relief, usually begin by initiating an Article 78 proceeding. <br /> <br /> First of all, an Article 78 proceeding is used to compel an “officer,” or “body,” to do something, and may be petitioned by “interested persons” (McKinney\\\'s CPLR § 7802) seeking judicial relief. These would be persons that have a direct interest in the outcome of the judicial intervention as the issue has a direct affect on them. In Mulgrew v. Board of Educ. of City School Dist. of City of New York, N.Y.A.D. 1 Dept., 2010, 75 A.D.3d 412, 906 N.Y.S.2d 9, 258 Ed. Law Rep. 1214, 2010 N.Y. Slip Op. 05863 (Mulgrew 1), the Teacher’s Union President, Michael Mulgrew, had the standing as the representative of interested persons, (See Matter of Dental Socy. of State of N.Y. v. Carey, 61 N.Y.2d 330, 332–334, 474 N.Y.S.2d 262, 462 N.E.2d 362 [1984]; see also, New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004] ).to bring suit against the New York City Board of Education. Due to the standing of the Teacher’s Union, it was not necessary to “test” the remaining petitioners, being the civil rights organizations and school district parents, (See Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 813, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert. denied, 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003]). The issue in Mulgrew 1 was the board of education’s planning to co-locate Charter Schools or close approximately nineteen New York City public schools that had been determined to be failing schools. It was further proposed that Charter Schools would be placed within these buildings upon their closing. The court ruled in favor of the petitioner and granted an injunction, which enjoined the Board of Education to not proceed with the closures because the Board of Education did not complete the required Educational Impact Statements (EIS) as per Education Law §2590-h, nor did it conduct a public hearing on the matter—an additional requirement. This law requires the Chancellor of Schools to issue full disclosure on the impact the closing of these schools would have on the community children that do attend the school. The Chancellor was found to not be in compliance with this requirement, as the full and necessary details were not provided within the submitted EIS. Therefore, the court affirmed the Supreme Court’s ruling in favor of the injunction, (Mulgrew 1, at 12). The court “annulled,” (Id., at 13) the Department of Education’s unanimous decision to close these schools in question (See Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 369, 509 N.Y.S.2d 499, 502 N.E.2d 176 [1986]). The court did not find that the “statutory violations” were “so insignificant as to be totally inconsequential,” as the “respondents” had contented, (See Roosevelt Is. Residents Assn. v. Roosevelt Is. Operating Corp., 7 Misc.3d 1029[A], 2005 N.Y. Slip Op. 50811[U], 2005 WL 1306479 [2005]); thus granting injunctive relief to petitioners. <br /> <br /> Additionally, an agreement referred to as a “settlement agreement” was made amongst the parties that noted that the DOE would not co-locate particular Charter Schools within particular New York City public school buildings. This was a voluntary agreement. <br /> One year later, the same petitioners brought a new and different case, Mulgrew v. Board of Educ. of City School Dist. of City of New York, N.Y.Sup., 2011. 33 Misc.3d 350, 927 N.Y.S.2d 855, 269 Ed. Law Rep. 680, 2011 N.Y. Slip Op. 21252 (Mulgrew 2), against the same respondents for breech of contract as the DOE made updated plans to co-locate and/or close the exact same schools that were supposed to be protected by favor of injunction as per the ruling of Mulgrew 1. In Mulgrew 2, the petitioners sought out a “declaratory judgment” for breech of the voluntary agreement as well as an injunction to enjoin the respondents from proceeding with the proposed co-location and/or closings. In this case, the DOE prepared documentation that was deemed by the court to be proper and in compliance with the Education Law. Furthermore, the Commissioner of Education was appealed to for an injunction as per the Commissioner’s Rules and Regulation Code. Generally, schools that have been deemed to be failing may not be allowed to close without the permission of the Commissioner.<br /> <br /> “Under SED\\\'s ‘Differentiated Accountability’ framework, Schools that receive the status of ‘Schools Under Registration Review’ (SURR) (Comm. Regs. § 100.2 [p][11][i] ) and ‘Persistently Low Achieving Schools’ (PLA) ( id., § 100.2[p] [11][ii] ), receive enhanced oversight to raise their level of achievement before closure is considered.<br /> <br /> SURR/PLA schools, which account for 12 of the targeted schools, cannot be closed or phased out without obtaining the Commissioner\\\'s approval. The DOE must “submit for the commissioner\\\'s approval, a plan identifying the intervention that will be implemented and will result in phase out or closure.” Id., § 100.2(p)(11)(iv). Approval may be granted if:<br /> <br /> a. official resolutions or other approvals to phase out or close the existing school have been adopted by the local board of education (in New York City, the chancellor or the chancellor\\\'s designee);<br /> <br /> b. a formal phase out or closure plan has been developed and approved in accordance with the requirements of the intervention prescribed by the commissioner pursuant to subparagraph (10)(iv) of this subdivision; and;<br /> <br /> c. parents, teachers, administrators, and community members have been provided an opportunity to participate in the development of the phase out or closure plan,” (Id., at 359-360).<br /> <br /> <br /> This put a new set of wheels into motion. Since both parties agreed that the Commissioner does have the power (Education Law §§ 310 and 306) to hear appeals and decide on this matter the court will wait until the Commissioner has made a ruling on the matter before it can decide if the DOE could be overruled, (“See Matter of Galloway v. Saletan, 20 A.D.2d 796, 797, 248 N.Y.S.2d 905 (2d Dept. 1964) (“Supreme Court has concurrent jurisdiction with the Commissioner of Education to hear and determine” applications); see also Matter of Bean v. Board of Education of Union Free School Dist. No. 17, Town of Oyster Bay, Nassau County, 71 Misc.2d 747, 336 N.Y.S.2d 703 (Sup. Ct., Nassau County 1972). The Legislature is quite capable of providing for the placement of exclusive jurisdiction with the Commissioner if it so chooses. See Matter of Duke & Benedict, Inc. v. Board of Education of Carmel Central School District, 81 Misc.2d 1043, 367 N.Y.S.2d 164 (Sup. Ct., Putnam County 1975) (exclusive jurisdiction found to lay with Commissioner under EL § 2037, which provides that disputes “shall” be referred to the Commissioner).”<br /> <br /> Besides that, the court determined that the petitioner’s additional issue to address the ramifications of overcrowding has been rendered moot (in pursuit of Commissioner’s preliminary decision) and unable to establish or prove that the co-location of the Charter Schools will absolutely overcrowd the public school part or that the potential for overcrowding exists. Therefore, the court could not establish that overcrowding will actually harm the students in the public school part. However, the court has determined that to grant the petitioner’s motion for an injunction will be a definite detriment to the already enrolled Charter School students that are expecting to have a building to go to at the start of school. And to grant the petitioner’s motion may cause harm to those children enrolled in the Charter School, as they will not have a building to occupy and putting an undue burden onto the Charter School to find a new location. (Mulgrew v. Board of Educ. of City School Dist. of City of New York, 33 Misc.3d 350, 927 N.Y.S.2d 855, 269, at 365 [Mulgrew 2]). Therefore, petitioner’s motion was denied.<br /> <br /> In addition to the two cases discussed, another prominent case regarding co-location of a Charter School into a public school building, Steglich v. Board of Educ. of City School Dist. of City of New York, 32 Misc.3d 1203(A), 930 N.Y.S.2d 177 (Table), 2011 WL 2535054 (N.Y.Sup.), 2011 N.Y. Slip Op. 51159(U)
 (Steglich 1), plaintiffs also sought an Article 78 proceeding for injunctive relief against the co-location of a Charter School within their district. In this case, parents intending on sending their children to the SACS Charter School made a motion to intervene and stop plaintiffs petition for injunctive relief. The plaintiffs did not want the Charter School parents to be considered as interveners as their children were only intending on going to the Charter school as an option amongst many. However, the court did find that the Charter School parents were to be considered as proper interested persons; thus making them eligible to act as intervening respondents because they did sign a preliminary contract with the school that they intend on sending their children to the SACS Charter School as per CPLR 7802(d). See New York Times Co. v. City of New York Fire Dept., 195 Misc.2d 119, 754 N.Y.S.2d 517 [Sup.Ct., New York County 2003 referring to Ferguson v. Barrios–Paoli, 279 A.D.2d 396, 398–399, 720 N.Y.S.2d 43 (1st Dept. 2001). <br /> <br /> Another issue in this case was the application to submit an amicus curiae brief, by the Department of Education. The DOE made the application for an opportunity to present the educational law that supports a preliminary hearing by the Commissioner of Education. The motion was thought to have the potential to be unfavorable to the petitioners as it was thought that this would cause a significant delay in the proceedings. This was also a concern for the court to decide on. In the end, the court decided to grant the application of amicus curiae to the DOE. Furthermore, the court also ordered that the court would hear the arguments of the proposed interveners and the DOE for consideration of dismissing the Article 78 proceeding. A few months later, a new and separate case emerged involving the same litigants in Steglich v. Board of Educ. of City School Dist. of New York, N.Y.Sup.,2011., 33 Misc.3d 304, 929 N.Y.S.2d 686, 271 Ed. Law Rep. 415, 2011 N.Y. Slip Op. 21282 (Steglich 2). In this case, petitioners brought suit against the DOE because the DOE revised EIS and the Building Utilization Plan (BUP) submissions (subject in Steglich 1) to render the previous February 2011 PEP vote that approved the co-location of SACS into a public school facility (and Steglich 1) moot as a result. Petitioners want to quash the June 2011 vote and uphold the February 2011 vote, to keep the terms succinct. Respondents argue that the new vote and written terms are in compliance with education laws and poses no change in the school space; however, a change to a new program space. <br /> <br /> The court found that the petitioners were arguing that the respondents were using funds that were originally supposed to be used for the reduction of class size, to support this new move by the DOE. The court found that this was an Education Law § 310 (7) issue and as such could not be pursued in the court until the remedies granted within have been exhausted (citing Mulgrew v. Board of Education, ––– A.D.3d ––––, 928 N.Y.S.2d 269, at 274 [Mulgrew 2]). Therefore the court dismissed the complaint, as the court found that the Commissioner of Education should first hear the case.<br /> <br /> In another significant case regarding the co-location of a Charter School into a public school building, New York City Parents Union v. Board of Educ. of City School Dist. of City of New York, No. 108538, 2011, (N.Y. Sup. Ct. December 28, 2011), petitioners sought an Article 78 proceeding to prevent a Charter School co-location. In this case, petitioners wanted respondents to make the Charter School pay rent/costs to occupy a traditional public school building. Petitioners argued that the rent payments are supposed to be collected by the DOE from the Charter School according to Education Law §2853 (4)(c). The law notes that Charter Schools may have use of public buildings and grounds at a cost. Plaintiffs also assert that it is detrimental and undermining to the progress and growth of traditional school students to not collect rent—that can be used for “the retention of teachers” and/or providing an advanced school environment, technology, and opportunities for an overall improved educational experience for traditional school students. <br /> <br /> The DOE responded by noting that it has chosen to not be under contract with the Charter Schools and does not intend on collecting rent from them at this time. The DOE went further by stating that the plaintiffs did not have standing for a “preliminary injunction.” The court noted that for the plaintiffs to have proper standing, they would have to have a (1) likelihood of success; (2) an irreversible harm; and (3) a reasonable measure of equity that shows an injunction would be most favorable for the situation (Aetna Insurance Company v. Capasso, 75 NY 2d. 860 [1990]). And all three components must be adhered for consideration for injunctive relief (Public Fuel Service, Inc. v. City of New York, 92 AD2d 451 [1st Dept. 1983]). <br /> <br /> Plaintiffs took years to bring this suit although the practice of not collecting rents from Charter Schools by the DOE has been going on for many years. The court found that this shows no immediate need for relief (61 West 62 Owners Corp. v. CGM EMP LLC, 77 AD 3d, 330, 342 [1st Dept. 2010] affd as mod 16 NY3d [2011]). The court also found that the harm was “speculative” and therefore not an irreversible harm. Damages cannot be awarded for “speculative harm,” (GFI Securities, LLC v. Tradition Astel Securities, Inc., 61 AD3d 586 [1st Dept. 2009]). <br /> Furthermore, the court found that the wording chosen by the DOE specifically notes that the DOE “gives” the space, and thus eliminating the need to interpret the Education Law term as a means to collect rent from the Charter Schools, at this time. The court also notes that to grant injunctive relief to the plaintiffs would cause a great harm to the “status quo” and create a hardship for all Charter Schools. However, the court has made it quite clear that its ruling does not eliminate a future opportunity for the DOE to collect rent, or that a demand for rent to be collected be made at some time in the future. In this case, the court ruled that the plaintiff’s petition be dismissed and no injunctive relief be granted at the time. <br /> <br /> As it stands, Charter Schools do have the right to co-locate and/or take advantage of a school building being closed as a failing school, and then occupy the space in New York State. Of course, there are preliminary procedures, allowances, and permissions that must take place first. The Chancellor must note what buildings are to be utilized by way of submitting a BUP to the Commissioner. If the Commissioner finds the submission paperwork to be proper, the Commissioner may then accept the filing and make a decision after some deliberations of the feasibility of the utilization proposed. There are also community factors to consider and are regulated by Education Law by submission of an EIS. Once all of these are properly put together and submitted by the interested parties, these may be decided upon after review of all documentations and considerations have been met. <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />