Beginning With Children Charter Sch. v., 4300/2016
| Decision Date | 03 August 2016 |
| Docket Number | 4300/2016 |
| Citation | 2016 NY Slip Op 51184 (U) |
| Parties | The Beginning with Children Charter School; MICHELLE DAVIS, individually and as a parent on behalf of MICAIH BASKERVILLE and EMMANUEL BASKERVILLE; and GLENTON DARLINGTON, individually and as parents on Behalf of OMETTA DARLINGTON and ONELL DARLINGTON, Petitioners, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law & Rules v. New York City Department Of Education and CARMEN FARIÑA, its Chancellor, Respondents. |
| Court | New York Supreme Court |
Jordan Fletcher, Esq.
Attorney for Petitioners
Kushnirsky Gerber, PLLC27 Union Square West, Suite 301
New York, New York 10003
Ellen Kimatian Eagen, Esq.
Eagen Law Firm, PLLC
312 Sedgwick Drive
Syracuse, New York 13203
Zachary Carter, Esq.
By: Omar H. Tuffaha, Esq.Corporation Counsel for the City of New York
100 Church Street, 2-113 New York, New York 10007
Neal Brandenburg, Esq.
New York City Department of Education
Attorneys for Defendants
52 Chambers Street, Suite 308
New York, New York 10007
Petitioners The Beginning with Children Charter School, Michelle Davis, individually and as parent on behalf of Micaih Baskerville and Emmanuel Baskerville, and Glenton and Tremaine Darlington, individually and as parents on behalf of Ometta Darlington and Onell Darlington move by order to show cause, sequence number one, pursuant to CPLR Article 78 for a preliminary injunction enjoining respondents from taking any actions in a manner that is inconsistent with the continued operation and existence of the petitioners The Beginning with Children Charter School as an ongoing, fully chartered and functioning charter school.
Fariña, oppose and cross-move, sequence number two, for an order dismissing the petition and entering judgment for the City on the grounds that (1) the court lacks subject matter jurisdiction over the proceeding pursuant to New York State Education Law section 2852(6); (2) even if judicial review were permissible, the petition should be dismissed because the challenged determination was rational and lawful; and (3) any other and further relief as this Court deems just and proper.
The Beginning with Children Charter School (the charter school), located in Williamsburg, New York, was issued its first charter in 2001, following the passage of New York's Charter Schools Act.1 This five-year charter agreement was renewed twice; in 2006 and 2011. The charter school submitted a renewal application to the Department of Education (DOE) for a fourth charter term on November 2, 2015. On February 12, 2016, the DOE issued the charter school a Notice of Non-Renewal. At that time the charter school was advised of their opportunity to respond to the non-renewal decision, both orally and in writing.
The charter school filed a notice of appeal with Carmen Fariña, chancellor of the New York City DOE, on February 17, 2016. On March 14, 2016, the charter school submitted its brief to the chancellor. On March 17, 2016, representatives from the charter school made their oral presentation to a four-member panel. This panel consisted of (1) Laura Feijoo, Senior Supervising Superintendent; (2) Rosemary Stuart, Senior Director, Office of School Quality; (3) Julian Cohen, then Senior Executive Director of the DOE's Office of School Design and Charter Partnerships (OSDCP); and (4) Sonya Hooks, Senior Director of OSDCP. Subsequently, on March 25, 2016, the DOE, by Julian Cohen and Sonya Hooks from the panel, as well as Alicja Winnicki, Superintendent of the charter school's community school district and Meera Jain, Director of OSDCP, conducted a site visit of the school (see Tuffaha Affirmation in Opposition [2A], Exhibit D, Recommendation to Chancellor Carmen Fariña Concerning Renewal of Beginning with Children Charter School). At oral argument, counsel for respondents noted that the four individuals who participated in the site visit made a verbal report to the panel (see Oral Argument Transcript, June 23, 2016, p 47-48).
On May 24, 2016, Laura Feijoo, Senior Supervising Superintendent Panel Chair, issued a written recommendation to Chancellor Fariña regarding the appeal for the charter renewal (see id.). On May 27, 2016, the chancellor issued a decision, upholding the DOE's determination not to grant the charter school a fourth charter term (see Verified Petition [1B], Exhibit E, Final Determination Letter, May 27, 2016). In her determination, Chancellor Fariña cited to a number of "systematic problems" within the charter school, including "favoritism in teacher ratings, the counseling out [of] students with disabilities, and the failure of the school to provide due process in student disciplinary matters" (id.).
Chancellor Fariña further stated that the charter school "has not demonstrated academic success," stating that the school's "ELA [English Language Arts] and math proficiency scores on the New York State tests were below the community school district ("CSD"), New York City, and New York State averages throughout the school's third charter term" (id.).
The Recommendation Report states that the school only met 32% of the academic goals contained in its second renewal charter agreement during the course of the last charter term, and only 21% of the academic goals in the last year (see Tuffaha Affirmation in Support [4B], Exhibit E, p 2; see also Exhibit B, 2015-2016 Renewal Report, at 12).
The charter agreement provides in section 2.4 entitled "Student Learning and Achievement," that (Tuffaha Affirmation in Support [4B], Exhibit C, Charter Agreement, at p 4). The charter provides that "[i]f CSO [Charter School Office] determines that the Charter School is not progressing toward one or more of the performance or education goals set forth in the charter CSO [Charter School Office], in consultation with the Charter School, may develop and implement a corrective action plan" (id., at p 15). The charter further provides in section 8.1, entitled "Renewal Applications" that "[n]othing herein shall require the chancellor or the Regents to approve a Renewal Application" (id., at p 16).
The DOE's Accountability Handbook "describes the 2015-16 Accountability Framework for Chancellor-authorized charter schools ("the framework") and the tools through which the NYC DOE measures and evaluates charter school performance annually and upon renewal" (Verified Petition [1B], Exhibit A, Accountability Handbook, at p 3). This framework is built around three essential questions: (1) is the school an academic success; (2) is the school effective and well run; and (3) is the school financially viable? (id., at p 4).
With respect to renewal procedures, the handbook provides the following information:
The Charter Authorizing Team may recommend three potential outcomes for charter schools applying for renewal: full-term renewal (with or without conditions), short-term renewal (with or without conditions), or non-renewal.
Full-Term Renewal In cases where a school has clearly and consistently demonstrated high academic performance, a compliant environment that supports the health, safety, and well-being of all students, operational stability, and financial viability, a five-year renewal may be recommended (with or without conditions).
Short Term Renewal In cases where a school has demonstrated mixed academic results or uncertain organizational or financial viability, a short-term renewal may be recommended (with or without condition).
Non-Renewal Renewal is not automatic. In cases where a school has failed to demonstrate significant progress, has low levels of student achievement, is in severe financial distress, or is in violation of its charter, non-renewal may be recommended.
Charter schools that receive non-renewal decisions are provided with due process, including an opportunity to submit a written response and an opportunity to make an oral presentation, whereby these schools may appeal the non-renewal decision.
(id. at p 22).
Petitioners commenced the instant proceeding by filing an order to show cause on June 7, 2016. The order to show cause was signed by the Honorable Loren Baily-Schiffman as the ex-parte judge on that day. At that time, that portion of petitioner's order to show cause seeking a temporary restraining order was denied. The matter was set down before this Court on June 17, 2016. On June 17, 2016, the matter was adjourned, at the request of petitioners and on consent of all parties, to June 23, 2016. The parties stipulated to a briefing schedule on June 17, 2016. This Court notes that the charter agreement was set to expire on June 30, 2016.
On June 23, 2016, the parties appeared for oral argument. After extensive argument it was disclosed that the charter school had a...
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