Matter of New Covenant Charter School Educ. Faculty Assn. v Board of Trustees of the State Univ. of N.Y.
Annotate this CaseDecided on November 29, 2010
Supreme Court, Albany County
In the Matter of the Application of The New Covenant Charter School Education Faculty Association, VANESSA VOLINO, individually and as President of the NEW COVENANT CHARTER SCHOOL EDUCATION FACULTY ASSOCIATION, AMELIA NELLIGAN, MONAE NELLIGAN and SHA'HIM NELLIGAN by their parent and guardian GLORIA NELLIGAN, DONOVAN JOSEPH and LOTTIE JACKSON by their parent and guardian BOBBI MAURISA HYLER, FRANCIS MAN, JR. and KELSEY MANN by their parent and guardian KELLY BRADY, MARYANNE RAPPAPORT, SANDRA SPRUNGER-SELBY, MELISSA PARKER, and JOSHUA SIFONTES and MARLEIGH SIFONTES, by their parent and guardian, MARIA SIFONTES, Petitioners, for judgment pursuant to Article 78 of the CPLR
against
Board of Trustees of the State University of New York, and BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK, CITY SCHOOL DISTRICT OF ALBANY, ENLARGED CITY SCHOOL DISTRICT OF TROY, SCHENECTADY CITY SCHOOL DISTRICT, COHOES CITY SCHOOL DISTRICT, WATERVLIET CITY SCHOOL DISTRICT, RENSSELAER CITY SCHOOL DISTRICT, LANSINGBURGH CENTRAL SCHOOL DISTRICT, NORTH COLONIE CENTRAL SCHOOL DISTRICT, BETHLEHEM CENTRAL SCHOOL DISTRICT, GUILDERLAND CENTRAL SCHOOL DISTRICT, and SOUTH COLONIE CENTRAL SCHOOL DISTRICT, Respondents.
4162-10
Peter Henner, Esq.
Attorneys For Petitioners
P.O. Box 326
Clarksville, New York 12041
Andrew M. Cuomo
Attorney General of the State of New York
Attorneys For Respondents The Board of Trustees of the University of New York and Board of Regents of the University of the State of New York
Roger W. Kinsey, Esq., of counsel
The Capitol
Albany, New York 12224
Guercio & Guercio, LLP
Attorneys for Respondents Enlarged City School District of Troy
Kathy A. Ahearn, Esq., of counsel
24 Century Hill Drive
Suite 101
Latham, New York 12110
Girvin & Ferlazzo, P.C.
Attorneys for Respondent School Districts of Albany, Cohoes, Rensselaer, North Colonie, Bethlehem and Guilderland
Christopher P. Langlois, Esq., of counsel
20 Corporate Woods Boulevard
Albany, New York 12211
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.
Attorneys for Respondent Watervliet City School District
Joseph G. Shields, Esq., of counsel
5010 Campuswood Drive
East Syracuse, New York 13057
Tabner, Ryan and Keniry, LLP
Attorneys for Respondent South Colonie Central School District
William F. Ryan, Jr., Esq., of counsel
18 Corporate Woods Boulevard
Suite 8
Albany, New York 12211
Henry F. Zwack, J.
In this CPLR Article 78 proceeding, multiple respondents move to dismiss. Petitioners oppose the motions to dismiss.
In March 2010, the State University of New York (SUNY) Board of Trustees denied the renewal application for New Covenant Charter School. Petitioners, who are former students, parents, teachers, trustees and the school itself, commenced the present proceeding in June 2010, arguing that the determination denying renewal of the charter was arbitrary and capricious and also arguing multiple constitutional violations. An amended petition was filed in August 2010.
Respondents the Board of Trustees of the University of New York and the Board of Regents of University of the State of New York now move to dismiss the petition based upon the Court's lack of subject matter jurisdiction, based upon the argument that the constitutional claims are not meritorious or timely, and based upon the argument that the Court cannot grant the relief sought by petitioners.
Respondent School Districts for Albany, Cohoes, Rensselaer, North Colonie, Bethlehem and Guilderland join in the prior motion and also move to dismiss based upon the lack of subject matter jurisdiction, based upon petitioners' failure to state a claim for certain causes of action, and based upon the Court's inability to grant the relief sought by petitioners.
Respondent South Colonie Central School District joins in the first motion and cross moves to dismiss the petition based upon lack of subject matter jurisdiction and petitioners' failure to state a claim.
Respondent Enlarged City School District of Troy takes no position with regard to petitioner's claims.
Respondent Watervliet City School District has filed an answer to the petition. [*2]
First, the Court concurs with moving respondents that the present proceeding is not subject to judicial review to the extent it seeks to challenge the determination to deny the charter renewal application, pursuant to the language found in the Education Law (Education Law §§2852[6], 2851[4]). The statutory scheme expressly acknowledges that charters may be renewed and notes that the denial of an application for a charter school "is final and shall not be reviewable in any court" (Education Law §2852[6]; see also Education Law §2851[4]). The Court has considered petitioners' argument that charter renewals are reviewable by the Court because they are not mentioned specifically in the statutory language, but the Court finds that the plain wording of the statutes in question does not support the interpretation requested by petitioners. Therefore, petitioners' first cause of action is dismissed.
Regarding petitioners' constitutional claims, and first considering the Education Clause claim, the Court concurs with moving respondents that a child's inability to attend the school of his or her choice is not the equivalent of a deprivation of an education (Bennett v City School Dist. of New Rochelle, 114 AD2d 58, 68 [2d Dep't 1985]). Petitioners' Education Law claim is properly dismissed for failure to state a claim.
Regarding petitioners' Equal Protection claims, the Court finds that respondents' motion to dismiss must be granted as to these claims. Petitioners allege that New Covenant was treated differently than other schools that were similarly situated. Specifically, petitioners argue that other schools were granted a charter when New Covenant was denied its charter renewal. Petitioners take issue with the manner in which it was determined whether New Covenant met the criteria for having its charter application approved.
On this motion to dismiss, the Court construes the pleadings liberally and considers only whether the petition states a cognizable claim on its face. The Court finds that the petition fails to sufficiently plead causes of action under the Equal Protection clauses of the state and federal Constitutions in claims three and four of the Amended Verified Complaint because the alleged disparate treatment is undisputedly in the context of discretionary state action (see, e.g., Engquist v Oregon Dept of Agriculture, 553 US 591, 602-06 [2008]; Ruston v Town Bd. for the Town of Skaneateles, 2009 WL 3199194 [NDNY]). The nature of petitioners' equal protection claims is such that they would be considered "class of one" claims, which require that the treatment in question result from non-discriminatory state action (see id.). In this case, when New Covenant failed to meet the absolute measure of 75% passage rate for the English Language Arts exam, the test as to whether renewal of the charter would be granted involved determining whether New Covenant "came close" to the 75% absolute measure, or met or "came close" to meeting five other academic measures. The determination of whether a school "comes close" to meeting certain measures is a discretionary determination, as acknowledged by petitioners and which is at the heart of their argument in this case. The Trustees determined that New Covenant did not meet the standard. Petitioners take issue with the manner in which [*3]the Trustees' exercised their discretion in this case. The determination, after New Covenant did not meet the bright line test of 75% passage rate, became a discretionary determination, which mandates a finding that this claim fails as an equal protection claim alleging disparate treatment (see Engquist v Oregon Dept of Agriculture, 553 US 591, 602-06 [2008]; Ruston v Town Bd. for the Town of Skaneateles, 2009 WL 3199194 [NDNY]).
Regarding petitioners' due process claims, there has been no showing that petitioners have been denied the right to a public education and there is no property interest in the renewal of a charter for a charter school, which are issued for five-year periods (Education Law §§ 2851, 2852). There is no basis for claiming an entitlement or property interest in a charter application being granted (see id.). The Court also does not find that petitioners have set forth any conduct that could be deemed to be conscience shocking or oppressive in a constitutional sense, and it cannot be said that the denial of the charter renewal was without any legal justification (see County of Sacramento v Lewis, 523 US 833 [1998]; Bower Associates v Town of Pleasant Valley, 2 NY3d 617 [2004]). Based upon the foregoing, the Court finds that petitioner's due process claims must be dismissed.
Accordingly, it is
ORDERED, that respondents' motions to dismiss are granted; and it is
further
ORDERED, that the amended verified petition is dismissed.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to
the attorneys for the respondents Board of Trustees and Board of Regents. All other papers are
delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this
Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved
from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Dated:November, 2010
Troy, New York
________________________________________
Henry F. Zwack
Acting Supreme Court Justice
Papers Considered:
Order to Show Cause and Temporary Restraining Order dated June 30, 2010; Attorney Affirmation of Peter Henner, Esq. dated June 28, 2010; Affidavit of Vanessa Volino sworn to June 27, 2010; Affidavit of Maria Sifontes sworn to June 27, 2010; Affidavit of Kelly Brady sworn to June 27, 2010; Verified Petition and Complaint dated June 27, 2010; together with Exhibits "A" through "P"; Amended Verified Petition and Complaint dated August 1, 2010; together with Exhibits "A" through "P";
August 13, 2010 correspondence from Kathy A. Ahearn, Esq.;
Notice of Motion to Dismiss dated September 10, 2010; Affidavit of Ronald C. Miller, Ph.D. sworn to September 8, 2010; Memorandum of Law in Support of Respondents' Motion to Dismiss dated September 10, 2010;
Notice of Motion to Dismiss dated September 16, 2010; Affidavit of Christopher P. Langlois, Esq. sworn to September 16, 2010;
Verified Answer dated September 21, 2010;
Notice of Cross Motion dated September 28, 2010; Affidavit in Support of Motion to Dismiss of William F. Ryan, Jr., Esq. sworn to September 28, 2010;
Attorney's Affirmation of Peter Henner, Esq. dated October 6, 2010; together with Exhibit
"A"; Petitioners' Memorandum of Law dated October 6, 2010.
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