Matter of Southside Community Schools Coalition v Brooklyn Success Academy 4 Charter School

Annotate this Case

Download PDF

Matter of Southside Community Schools Coalition v Brooklyn Success Academy 4 Charter School 2012 NY Slip Op 31469(U) May 31, 2012 Sup Ct, New York County Docket Number: 102054/12 Judge: Peter H. Moulton Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 61512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK dLlUU1 Q L L J PRESENT: - NEW YORK - d COUNTY PART yqH Justice I The following papers, numbered 1 to were read on thla motion tolfor ppPER!$ NUMBERED Notlce of Motlon/ Order to Show Cause - Affldavlts - Exhlblts ,.. Answering Affldavits - Exhibits Rsplylng Affldavita Cross-Motion: 0 Yes No c Upon the foregoing papers, Check one: Q &b+drod It is ordered that thir,mvthnT mpgfg#&yfbhj 0 FINAL DISPOSITION m e c k if appropriate: DO NOT POST 0 SUBMIT ORDER/ JUDG. 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] Supreme Court: New York County Part 40B ---------x - - - - - - - _ _ _ _ - - - - - - - _ _ _ _ r _ _ _ _ _ _ In the Matter of: SOUTHBIDE COMMUNITY SCHOOLS COALITION, e t al., Petitioners , Pursuant to Article 78, -againet- Index No. 102054/12 Brooklyn Success Academy 4 Ch-rt-r School, T h e Board of Trustees of the S t a t e University of New York, and D e n d r a Walcott, in his Official Capacity as Chancellor of the New Yark City Board of Education, k Petitioners in this Article 78 proceeding challenge the issuance of a charter to respondent Brooklyn Success Academy 4 (BA 'S 4"), which enables BSA 4 to open a charter school in a building in Williamsburg, Brooklyn that currently houses several City public schools. The propot3ed building is located in Community School District 14. The petitioners are comprised of elected officials and community organizatiom from Williamsburg and nearby portions of Brooklyn, and numerous parents o children who attend f District 14 schools. Petitioners oppose the siting of this Charter 1 [* 3] School in their community. Petitioners seek declarative and injunctive relief arising from the respondents alleged failure to shoulder their statutory duty to seek meaningful input, and gauge support, from the relevant community, before deciding to award a charter to BSA Petitionera brought this proceeding 4. seeking a temporary restraining order to enjoin the Panel on Education Policy, the relevant deciaion-making body of the New York City Department of Education, from voting to allow BSA 4 to co-locater, with traditional public schools in the school building denominated K050. This court declined to iBeue this temporary restraining Order, the Vote went forward, and the DOE has determined that BSA 4 may c o - locate in the building. \ Respondents contend that they did aeek meaningful input from the relevant community and that thia input revealed substantial support for BSA 4. They argue that BSA 4 has demonstrated that its outreach revealed that it can more than meet its enrolment targeta, which is the fundamental measure for approval of a charter school under the state s Education Law. Respondents also point to the success of other charter schools run by BSA 4 1s parent, and to the high demand for placements in these sister schools, to justify the award of a charter to BSA 4. Apart from their argument that the 2 [* 4] charter award was not arbitrary and capricious, respondents raise the threshold arguments that petitioners do not have standing to challenge the decision awarding the Charter, and that this proceeding is time-barred. BACKGROUND The sequence of events that led to the issuance of a charter to BSA 4 is not in dispute and is summarized below. On January 3, the 2011, Charter Schools Institute ( Institute ), an arm of The State University of New York ( SUNY), issued a request for proposals for 63 new charter schools in the state. The Institute serves as staff to the SUNY Trustees on matters pertaining to charter schools. \ On February 2 8 , 2011, BSA 4 submitted a joint application with two other schools, Brooklyn Succesa Academies 2 and 3 , concerning proposed charter schools f o r Community School Districts 13 and 14. All three charter schools are managed by Success Academy Charter Schools ( Success Academy 1 a non-prof it education organization that operates a network of charter schools in New York City. The application made a number of representations concerning outreach conducted by Succesa Academy to parents, office holders, and other stakeholders in Community School Districts 13 and 14. It attached 3 [* 5] over 1500 petitions for each of the three schools. On May 26, 2011, respondent Dennis Walcott, Chancellor of the New York City Department of Education, recommended to the Institute that the charters f o r BSA 2-4 be granted. On June 5, 2011, the Institute recommended the three schools for approval. The SUNY Trustees voted to approve the charters on June 15, 2011. On June 27, 2011, the SUNY Trustees posted on its website a notice of ita approval. The SUNY Truatees issued provisional charters to the three schools on August 11, 2011. The Board of Regents approved the charters on September 13, 2011. As of that date, none of the schools had been aBsigned to a specific building. Thereafter, the Board of Regents posted online minutea from the meeting in which BSA 4 ' s charter was approved. \ On December 12, 2011, the Department of Education iasued a public notice proposing to locate BSA Community School District 14. 4 in building KO50 In Two schools currently occupy the building. On January 17 and February 16, 2012 , the DOE held public meetings in order to solicit public comments on the co-location proposal. On March 1, 2012, The DOE'S Panel for Educational Policy ("PEP") voted to approve the co-location of BSA 4 at building K050. 4 [* 6] DISCUSSION Thrsabo 14 Pet fensen A. The respondents raise t w o threshold defenses: lack of lstanding and statute of limitations. 1. Standinq Respondents challenge petitioners standing to bring this Article 78 proceeding. They argue that petitioners have articulated no harm to them if the school opens. Therefore, BSA 4 argues, petitioners can atate no injury in fact. BSA 4 also argues that petitioners are not within the zone of intereets protected by the Education Law sections invoked by petitioners. [A] party has standing to enforce a s t a t u t o r y right if its h abuse will cause him injury and it may fall within the zone of interests protected by the legislation. Echwartx v Momenthau . [ 2 0 0 6 ], w t i e q 7 NY3d 427, 432 , 58 M a t e r of P istrict A t t o r nev t I Of NY2d 436, 442 [1983] . I Petitioners sue under Education Law 5 5 2851 ( 2 ) (4) 2852 (9, a) (b). According to petitioners these two provisions of the Education Law mandate that any charter school applicant gauge community support and opposition to a charter school, and assess the impact of a charter school on other schools in a given area. 5 . .. . . - . . [* 7] Petitioners argue that they were silenced by BSA 4 s failure to properly solicit views of their community. Education Law 5 2851(2) (9) provides that a charter school app1icant must provide: Evidence of adequate community support for and interest in the charter school sufficient to allow the SchooL to reach its anticipated enrollment, and an assessment of the projected programmatic and fiacal impact of the school on other public and nonpublic schools in the area. This section contains two clauses. The first clause requires charter school applicants to gauge adequate community support to determine if the school can \\rea& ita anticipated enrollment This portion of the statute requires evidence of gupport for the school. Accordingly, petitioners - who are opposed to BSA 4 - are \ not within the zone of interests protected by this portion of the statute. A s lang as there iB sufficient evidence of support - it does not matter what petitioners views are. In its second clause, the statute does not explicitly require respondents to consider the views of community residents in assessing the pro) ected programmatic and fiscal impact of the School on other public and nonpublic schools in the area. Respondents are directed to consider the projected programmatic and fiscal Impact of the school on other public and nonpublic 6 . . . [* 8] schools in the area" but the statute does not direct respondents to any particular source of information. Petitioners allege that they are concerned about a diversion of resources, including school space, away from standard public schools and towards BSA 4. They allege that their views, and those of other opponenta of BSA 4, were ignored by BSA 4. However, by its terms, 5 2851(2) (9) does not confer standing on petitioners to raise this claim. Petitioners Htate a similar claim under Education Law 2852(9-a)(b). That section states in relevant part: ' T h e board Qf regents and the board of trustees of the state univer~ity New York shall each of develop such request f o r proposals in a manner that facilitates a thoughtful review of charter schaol applications, considers the demand f o r charter schools by the community, and seeks to locate charter schools in a region or regions where there may be a lack of alternatives and access to charter schools would provide new alternatives within the local public education system that would o f f e r the greatest educational benefit to students. Applications shall be evaluated in accordance with the criteria and objectives contained within a request for proposale. The board of regents and the board of trustees of the state university of New York shall not consider any applications which do not rigorously demonstrate that they have met the following criteria: *** (ii) that the applicant has conducted public outreach, in conformity with a thorough and meaningful public review process preacribed by the board of regents and the board of trustees 7 § [* 9] of the state university of New York, to solicit community input: regarding the proposed charter school and to address comments from the impacted community received concerning the educational and programmatic needs of students. Petitioners have standing under t h i s section. \\Community" is concerning "community input" is to have any meaning, it must refer to input from residents of the very City neighborhood in which the children to the very school building where the charter Bchool will be housed. Such people are the of nucleus the affected "community," however broadly that term is defined. 2. gitatuts Qf AB held above, standing is T d m i t a t 1048 \ the only statute under which petitioners have Education Law 5 . 2852 ( 9 - a ) (b) limitations period f o r this Article 7 8 proceeding The iEt applicable four months. (CPLR 217). The parties disagree concerning the date that the four month period began to accrue. Reepondents assert that petitioners' claims are barred because they were not brought until eight months after the SUNY Trustees approved BSA 4 ' s charter on June 15, 2011. 8 At the latest, [* 10] respondents argue, the accrual date is t h e date that t h e decision was published on the website of the SUNY Charter Schools Institute, which was June 2 7 , 2011. If either June 2011 date is the correct accrual date the petitioners' remaining claim is time-barred. For their part, petitioners argue that the relevant accrual date is December 12, 2011, when the Department of Education f i r s t issued a public notice proposing to locate BSA 4 in building KO50 in Community School District 14. According to petitioners they had no prior notice that Succeaa Academy had plans to open a charter school in Williamsburg. Petitioners also assert that they were not injured by the issuance of a charter until this announcement, because up to the date of the announcement it was not clear where BSA 4 would be sited. \ \ Apetitioner may challenge an administrative decision pursuant to Article 78 when it is final and binding. (CPLR 217[11 . ) The accrual date for limitations purposes is often hotly disputed in Article 7 8 proceedings. It can be particularly difficult to determine the accrual date where, as is the case here, the petitioners were not parties to the challenged administrative decision and were not entitled to personal notice of the final decision. It is further complicated, as is t h e case here, where there is more than one administrative decision maker. 'The Court of 9 [* 11] Appeals has provided a two step inquiry that aids courts' analyses in such cases. First the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury may not be prevented or inflicted significantly ameliorated by further administrative action or by steps available to the complaining party. (Matter of Best Pamhsnes, I:nc. v Dep't ~f Informat ion TechnolQcry Ci t y sf We w Yo r& , 5 NY3d 30, 34 [ZOO51 . ) Additionally, petitioners must have and Te IeC~ m of the , Borne notice of the administrative decision they wish to challenge. (Metrono1 itasq 1 e Hi - [2005].) ri 1 De 0 , 20 AD3d 28 Public notice can come in a variety of forma, including 1 r h C, 74 AD3d public meeting (= h 634 [IatDept 20101, agency's website genie4 15 NY3d 710) or publication on the (m TQW of Olive v CAtV of New York, 63 AD3d 1416 [3rd Dept 20091) * Petitioners do not wish simply to speak againat BSA 4; they seek to void its charter and keep it from opening in District 14. It is true that petitioners call for a vetting process t h a t they say would reveal overwhelming community opposition to the school. But they seek such a vetting process for the purpose of convincing the SUNY Trustees that the school should not open at all. In their 10 [* 12] prayer for relief, petitioners aeek an injunction that would permanently e n j oin \'respondent Brooklyn Success Academy 3 Charter School from opening, operating and maintaining [BSA 41 in School District 14 .Ir Accordingly, the administrative action that allegedly inflicted harm on petitioners was the d e c i s i o n to allow BSA open. 4 to At first glance, the relevant decision would appear to be the decision to grant BSA 4 ' s charter. This would appear to support respondents' argument that the relevant date for accrual of the four month limitations period is June 1 5 , 2011, the day the SUNY Trustees voted to approve the charter. However, as set forth in the Background section above, there gatekeeper appears to have been the Board of Regents, an entity separate from the SUNY Trustees. The Board of Regents is not a party to this proceeding. Pursuant to Education Law 5 2852(5) the "charter entity," here, the SUNY Trusteee, had to submit the proposed Charter Agreement to the Board of Regents for review. While the Board of Regents cannot reject the proposed charter, they are empowered to either approve the charter o r to return the charter to the charter entity with comments f o r reconsideration. 11 If the charter is [* 13] returned the charter entity, the charter entity must consider the Board of Regents' comments. Thereafter, the charter entity shall resubmit the proposed charter to the board of regents the with modifications, provided that applicant consents in writing to such modifications, resubmit the proposed charter to the board of regents without modifications, or abandon the proposed charter. (Education Law § 2852 [5-b]. ) These sections of the Education Law contemplate an iterative process, short in duration, between the SUNY Trustees and the Board of Regents. While the Regents cannot reject a charter, under Education Law 5 2852(5-b) their returning the charter to the charter entity (here the SUNY Trustees) can result in the charter entity abandoning the proposed charter. Therefore, the decision to \ grant a charter is not truly final until one of three events occurs: 1) the Regents approve a proposed charter, 2) the Regents take no action on a proposed charter for ninety days, in which case the charter 1s "deemed" approved (Education Law 2852 (5-a) or 3 ) ; the charter entity (here the SUNY Trustees) resubmits the charter application to the Regents, at which point the Regental approval is essentially a rubber stamp, with no further power to delay or alter the application. BSA 4's charter became final under the first of the above 12 [* 14] scenarios. The operative date is September 13, 2011, the date the Board of Regents voted to approve BSA 4 ' s charter. At that point, there was no further possibility that the charter might be abandoned by the SUNY Trustees. The final queation is: when did the Board of Regents or the respondents give notice of thia final and binding decision? It appears that the Board of Regents' approval was publicly announced on the Regents' website on October 4, 2011.l The question thus the Regents. Petitioners do not contend that they were entitled to , individual notice. It I s undislputed that Success Academy did conduct Borne outreach in the relevant communities which would be serviced by BSA \ 4. Succesa Academy attended meetings with the relevant community boards and community education council, wrote letters to elected officials, and collected petition signatures. Success Academy's proposal was covered in the press, and the progress of the application was reported on the Institute's website. The propolsal to open BSA 4 in either Community School District 13 or 14 waB not 'The Memorandum accompanying the September 13, 2011 minutes is dated October 4, 2012. The memo and the minutes appear on the Regents' website at: www. req ats.nysed.sov/rneetinqs/oct& er2011/1101bra2.pdf 13 . [* 15] a secret. Particularly as it came after this outreach, and after a long public decision-making process, the notification o the f final decision on the Regents' website was sufficient. (SQZ Town of Olive v City sf New York, 63 m 3 d 1416, gupra; Johns v R a m p e , 23 AD3d 283 [ l a Dept 20041 , J,y denied 6 NY3d 715 t [2006]; en v State of Ne W YQrR , 2 AD3d 522 [2d Dept Matter of 20031 . ) What matters is when the decision was made public, not when some members of the general public, unidentifiable in advance, happened to learn of the decision. As the Regents' notice occurred more than four months p r i o r to the date the petition was filed (February 29, 2012), this proceeding is time-barred. of the Citv Q f New YOrk, (28 Misc3d 204 [Sup Ct, New York County, b aff'd 75 AD3d 412 [lmr Dept 2010) in arguing that publication of a final decision on a website is insufficient. However, in yulsrew the respondents did n o t adhere to a specific statutory requirements for filing educational impact statements. There is no similar statute here that requires a particular method of publicizing the final decision to the general public.2 1 Education Law 5 2857(1) does impose some notification duties on the Board of Regents and the charter entity (SUNY Trustees). That section states i n relevant part: "At each significant stage of the chartering process, the charter entity 14 [* 16] For the reasons stated, this proceeding is barred by the applicable statute of limitations. B. The Merits Qf the Pet itioa Even if this proceeding was not time-barred, on the merits respondents have demonstrated that the decision to grant a charter to BSA 4 was not arbitrary or capricious or in violation of Education Law 5 2852(9-a)(b), the only statute that confers standing on petitioners. Petitioners argue that Success Academy's covmunity outreach Academy falsely stated that there waa no opposition to the school, b when in fact such opposition was stated at a meeting with school representatives on April 14, 2011. Further, overwhelming opposition would have been expreased, petitioners imply, if only Success Academy had sought to conduct true community outreach in the relevant portions of Brooklyn that would be served by BSA 4. [here, the SUNY Trustees] and the board of regents shall provide appropriate notification to the school district in which the charter school'is located and to the public and nonpublic schools in the same geographic area as the proposed charter school." Respondents-arenot among the groups entitled to notification under this section. 15 [* 17] Instead, petitionerB assert, BSA 4 conducted 'community outreach" accompany the SUNY Trusteea' request for proposals (\'RFPrl). The guidelines for the RFP seek "explicit support" for the proposed school from "community stakeholders or othersn and state that "generic support for charter schools . . . is not sufficient." Petitioners fault BSA 4 for invoking support for its existing schools, located elsewhere in the City, as having nothing to do with support for BSA 4. Petitioners a1so.argue that Success Academy's petitione, which were signed by 4500 people, were too generic to provide any useful evidence that the relevant communities in Brooklyn w e r e interested in the type of sGhO01s that The petitions do not contain Success Academy was planning. information suggested by the instructiona f o r the RFP, such as whether the signatory has school-age children. Petitioners note that a number of signatures are from individuals who reside outside of Community School Districts 13 and 14. However, petitioners do not quantify this number. In any event the relevant "community" from which input must be solicited is greater than Community School District 13 and 14. 16 b [* 18] Petitioners correctly argue that the instructions for the RFP elaborate on section 2852 (9-a) (ii)'s requirement of community (b) input. T h e instructions for the RFP include the following: (b) Per Education Law subdivision 2852 (9-a) (11) t h e SUNY Trustees are not to consider any proposal that does not reflect a meaningful public review process designed to solicit community input regarding the proposed charter school and address comments received from the impacted community concerning the educational -and programmatic needs of students. In order to recommend a school for approval, the [charter school application must demonstrate (1) the community'wasinformed of the propoged school in a timely fashion; ( 2 ) the community had meaningful opportunities for input; and (3) there was a thoughtful process for considering community feedback and incorporating it Into the final proposal. Please note that seeking input about the proposal is distinct from seeking support for the proposed school. While the application must also s h o w evidence of community interest in and support for the school, this support alone is not adequate in demonstrating that the community was given t h e opportunity to provide input into the design of the proposed school and that input was carefully considered by the applicant. by failing to discuss in its proposal a single concern about the proposed school in the "impacted community." There does not appear to have been any input aolicited concerning the "design" of the school. 17 [* 19] engaged in a more thorough-going canvas of the relevant neighborhoods in Brooklyn to surface concerns and opposition to BSA 4. However, the statute does not remire that charter applicants The community outreach required by the statute is weak. In the first place, as described above, the word \\community not is Additionally, the statute requires community input on the educational and programmatic needa of students" without in any way suggesting how to solicit, organize or record such input. Finally, overwhelming opposition to a proposed school during the course of the public input required by Education Law 5 2852(9-a) (b). Where the legialature wishes to create a more detailed process for community involvement in schools-related decision making, it has done so. The statute governing school co-location is an example. (mEducation L a w si 2853 [ 3 ] . ) It was not arbitrary and capricious for the SUNY Truatees to find that Success Academy complied with the community input 18 [* 20] requirements of Education Law § . 2852 ( 9 - a ) (b) The petitions, though they do not provide much detail about the nature of BSA 4, provide some evidence of interest. The application also recounts Succelss Academy's correspondence sent to elected officials and other interested parties in the area concerning plans to open the school. Success Academy officials attended community meetings with the community boards that serve the relevant communities, and the Education Councils for Districts 13 and 14. The SUNY Trustees are afforded deference in interpreting t h e Education Law provisions governing charter schools. & Bd, of Educ, Of Riverhead Central Sch. Dist v BQard of Resent$ sf the Univ. of the State of New York / Dept 20031; U t e rnational Bish Sch001; a Charter 301 AD2d 919 sc ho01 at baGu ardi a Communitv Collese v Mi Ila , 276 AD2d 165 [ 3 - rd \ Dept 2000.) The S& Trustees could rationally find that the level of community outreach exercised by Success Academy was sufficient to meet the very general requirementa of Education Law 5 2852(9- 19 - .. . . . .. . .. ~ [* 21] CONCLUSION For the reasons stated, IT IS ADJUDGED that the petition is denied and this Article 78 proceeding is dismissed. constitutes the decision and judgement of the court. Date: May 31, 2012 J.S.C. HON.P E E R H MOULTON . SUPREME COURT JUSTICE 20 This

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.