Opinion
No. 4300/2016.
08-03-2016
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 Farija, its Chancellor, Respondents.
Jordan Fletcher, Esq., Kushnirsky Gerber, PLLC, New York, Attorney for Petitioners. Ellen Kimatian Eagen, Esq., Eagen Law Firm, PLLC, Syracuse, Zachary Carter, Esq., by Omar H. Tuffaha, Esq. Corporation Counsel for the City of New York, Neal Brandenburg, Esq., New York City Department of Education, New York, Attorneys for Defendants.
Jordan Fletcher, Esq., Kushnirsky Gerber, PLLC, New York, Attorney for Petitioners.
Ellen Kimatian Eagen, Esq., Eagen Law Firm, PLLC, Syracuse, Zachary Carter, Esq., by Omar H. Tuffaha, Esq. Corporation Counsel for the City of New York, Neal Brandenburg, Esq., New York City Department of Education, New York, Attorneys for Defendants.
LARA J. GENOVESI, J.
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.
Respondents, the New York City Department of Education and Chancellor Carmen 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.
Background
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. 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, which has been "in continuous existence for almost 25 years" originally operated as a district school (see Order to Show Cause [1A], Davis–Fells Affidavit; see also Tuffaha Affirmation in Opposition [2A], Exhibit D). It was originally located at 11 Bartlett Street. Around 2014–2015 the charter school collocated to the fifth floor of a school located at 850 Kent Avenue.
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. ).
[F]rom 2012–2013 through 2014–2015, [the charter school] BwCCS lost ground on New York State test scores relative to the CSD, New York City, and New York State. For example, in ELA, in 2012–2013 BwCCS lagged 3% behind the CSD, and in 2014–2015 BwCCS lagged 12% behind the CSD. In math, in 2012–2013 BwCCS lagged 8% behind the CSD, and in 2014–2015 BwCCS lagged 12% behind the CSD.
(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
The charter agreement provides in section 2.4 entitled "Student Learning and Achievement," that "[t]he Charter School shall implement the educational programs set forth in the Renewal Application so that its students may meet or exceed the performance standards set forth in the Renewal Application. The educational programs shall be designed to meet or exceed the student performance standards adopted by the [Board of] Regents" (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 Accountability Handbook
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).
NYC DOE's oversight process described in this handbook will continue to evolve as a result of changes to the Act, amendments to and newly issued state laws, federal laws and NYC DOE Chancellor regulations, ongoing revisions to the standard charter agreement, and NYC DOE's continuing efforts to ensure rigorous accountability while respecting schools' autonomy.
(id. ).
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).
Procedural History
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 summer school program for approximately 200 students. Only approximately half of those students were mandated to attend; the remaining students were voluntary admissions. It was apparent that the DOE was not aware of the summer school program, and therefore there was no plan in place for these children for alternative summer placement. At the request of counsel, the matter was adjourned for one day.
At oral argument, counsel stated that the school has 373 in attendance and 56% of the students are enrolled in summer school (see Oral Argument Transcript, June 23, 2016, p 79). Based on that percentage, approximately 209 students are enrolled in the summer school program.
On June 24, 2016, the parties entered into a stipulation which addressed the potential displacement of the charter school's summer students. Although the current charter expired on June 30, 2016 (see Verified Petition, Exhibit B), the stipulation provided, in part, that "the DOE will treat BwCCS [the charter school] as an authorized charter school with a valid charter for the limited purpose of operating a summer school program" from July 7, 2016, to August 12, 2016 (see Stipulation and Order, June 24, 2016).
The City filed a cross-motion to dismiss the petition on July 6, 2016. Petitioners thereafter filed their opposition on July 8, 2016. A reply was filed on July 11, 2016. This Court heard oral argument on July 11, 2016, and the matter was marked submitted.
Discussion
Article 78
Pursuant to the Charter Schools Act of 1991, New York State Education Law section 2852(6), "[t]he denial of an application for a charter school by a charter entity shall be in writing and shall state the reasons for the denial. Notwithstanding any provision of law to the contrary, such denial is final and shall not be reviewable in any court or by any administrative body" (New York State Education Law § 2852[6] ). This section "applies with equal force to both the denial of an application to renew a charter and the denial of an initial charter application" (Matter of Fahari Acad. Charter Sch. v. Bd. of Educ. of City Sch. Dist. of City of New York, 137 AD3d 1127, 27 N.Y.S.3d 688 [2 Dept., 2016], lv. denied sub nom., Fahari Acad. Charter Sch. v. Bd. of Educ. of City Sch. Dist. of City of New York, ––– NY3d ––––, 2016 N.Y. Slip Op. 77413 [2016] ). However, the Appellate Division, Second Department, recently held that,
[e]ven where judicial review is proscribed by statute, the courts have the power and the duty to make certain that the administrative official has not acted in excess of the grant of authority given ... by statute or in disregard of the standard prescribed by the legislature" [internal citations omitted]. Thus, notwithstanding the applicability of Education Law § 2852(6), limited judicial review is appropriate regarding the issue of whether the subject determination was made in violation of lawful procedure under the Education Law.
(id., quoting Matter of New York City Dept. of Envtl. Protection v. New York City Civ. Serv. Commn., 78 N.Y.2d 318, 574 N.Y.S.2d 664 [1991] [internal quotation marks omitted] ).
"Thus, even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction' " (De Guzman v. State of New York Civil Serv. Comm'n, 129 AD3d 1189, 11 N.Y.S.3d 296 [3 Dept., 2015], lv. denied, 26 NY3d 913, 43 N.E.3d 375 [2015], citing Matter of New York City Dept. of Envtl. Protection v. New York City Civ. Serv. Commn., 78 N.Y.2d 318, supra; see generally Williamsburg & Greenpoint Parents: Our Pub. Schools! v. Bd. of Trustees, State Univ. of New York, 130 AD3d 638, 13 N.Y.S.3d 219 [2 Dept., 2015], citing CPLR § 7803[3] ["Judicial review of administrative agency determinations such as the one under consideration here is limited to whether the action taken by the agency was illegal, arbitrary and capricious, or an abuse of discretion"] ).
Petitioners, in commencing this Article 78 proceeding, allege that Chancellor Fariña's non-renewal determination was arbitrary and capricious, made in violation of lawful procedure and in excess of authority for a number of reasons. Petitioners' main points, discussed at length below, are as follows: Point I: Chancellor Fariña's non-renewal decision violated the U.S. Constitution and the New York State Constitution; Point II: Chancellor Fariña violated the City of New York Administrative Procedures Act and New York State Education Law when the DOE created the Accountability Handbook; Point III: Chancellor Fariña violated the Charter Schools Act and DOE's own regulations, rules and procedures; and Point IV: Chancellor Fariña exceeded her authority in the role of DOE Chancellor. The remainder of the parties' contentions either are without merit or need not be reached in light of this decision.
Point I: Chancellor Fariña's non-renewal decision violated the U.S. Constitution and the New York State Constitution.
Petitioners first contend that Chancellor Fariña's non-renewal decision should be vacated because her actions violated the United States and the New York State Constitutions, and in doing so, violated the charter school's right to due process. Petitioners aver that the chancellor treated the charter school differently from similarly situated schools in their outright denial of the charter renewal, as opposed to granting a short term extension of time in which the school could correct their academic deficiencies (Petitioners' Memorandum of Law in Support of the Order to Show Cause [1C], at p 17).
Petitioners further contend that the charter school received a biased and unfair review of their non-renewal decision from the DOE. Petitioners maintain that Superintendent Winnicki is a vocal opponent of charter schools and led the site visit in conjunction with their review. Petitioners state that Winnicki decided which classes to visit, and refused to observe the classes suggested by the administration. Further, the tour was cut short because Winnicki had another appointment (see Supplemental Affidavit of Valerie Davis–Fells [3B] at ¶ 10). Petitioners further opine that Winnicki, as superintendent, is financially motivated to support the closing of charter schools, as she "stands to see the available funding for her own schools increase if DOE closes the Charter School and removes its funding" (Petitioners' Memorandum of Law in Support of the Order to Show Cause [1C], at p 20; see also Order to Show Cause [1A], Kern Affidavit, ¶ 28).
Petitioners aver that in addition to the biased panel involved in the non-renewal review, "further irregularities rendered the process defective" (Petitioners' Memorandum of Law in Support of the Order to Show Cause [1C], at p 21). Petitioners state that the transcript of their oral presentation was described as "problematic" and "required so many changes that the certification of accuracy had to be deleted" (id., at p 21–22). In addition, petitioners point out that Julian Cohen, Senior Executive Director of DOE's OSDCP "resigned suddenly and without explanation" between the oral presentation and the site visit (see id. at p 21). Petitioners described the outcome of the charter school's appeal visit as "all-but-predetermined" (id. at p 20).
Respondents primarily contend that petitioners are not entitled to the relief they seek, because judicial review of the chancellor's non-renewal decision is explicitly prohibited by the New York State Charter Schools Act. Further, respondents contend that under the Charter Schools Act, "statutorily designated charter entities'—including, in New York City, the chancellor—serve as the gate keepers, approving or denying charter applications" (Respondents' Memorandum of Law in Opposition [2C], at p 4). "The statutory scheme vests judgments about whether charters should be approved or renewed solely with the charter entity,' expressly shielding these core policy decisions from litigation" (id. ).
Respondents further contend that petitioners were not denied due process by Chancellor Fariña's non-renewal decision. Respondents aver that "there is no constitutionally protected property interest in the renewal of a charter and the Charter Schools Act's notice and opportunity to be heard' provision does not apply to [a] renewal decision" (Respondent's Memorandum of Law in Support of their Cross–Motion [4D], at p 13). Notwithstanding that, respondents maintain that the charter school received notice of the chancellor's decision not to renew the charter and a full opportunity to appeal her decision. This appeal consisted of written submissions, an oral presentation to a four-person panel and a site visit.
Respondents further aver that the charter school's opportunity to be heard after the non-renewal decision was not biased. Respondents maintain that Superintendent Winnicki is not an opponent to charter schools. Her role as superintendent does not mean she is biased as "she is committed to treating all members of her community fairly, both district schools and charter schools" (id., at p 15; see also Winnicki Affidavit [4C] ). Respondents further maintain that, contrary to petitioners' contention, Superintendent Winnicki was not appointed to lead the site visit; rather, she was one of four participants in a site visit, and had no sole decision-making authority. Respondents contend that the four individuals who attended the site visit had no decision making authority. They did not submit a written report to the chancellor. After the site visit, the four individuals, two of whom were part of the appeal panel, verbally "debriefed among each other" (Winnicki Affidavit [4C] at ¶ 5). The panel issued a written recommendation. The chancellor made an independent determination (see Oral Argument Transcript, June 23, 2016, p 47–48).
Respondents further contend that petitioners' assertion that they were treated differently than other "similarly situated" schools is unavailing, as petitioners failed to demonstrate the alleged disparate treatment did not occur in the context of a discretionary state action. Respondents maintain that the charter school's treatment cannot be compared to that of district schools, as "charter schools and district schools are governed by different sets of rules and as a result the Chancellor's authority over these entities differs greatly' " (id., at p 16). "[C]harter schools are held to specific academic standards and are required to satisfy other delineated requirements under the Education Law" (id., at p 17, citing Tuffaha Affirmation in Support [4B], Exhibit E, Panel Recommendation).
In the instant case, there is no evidence in the record before this Court that the chancellor violated the New York State or United States constitutions in her role as decision-maker in the non-renewal appeals process. "[T]he New York Charter Schools Act (Education Law art. 56) creates no constitutionally protected property interest in the renewal of a charter" (Pinnacle Charter Sch. v. Bd. of Regents of Univ. of State of New York, 108 AD3d 1024, 969 N.Y.S.2d 318 [4 Dept., 2013], appeal dismissed, 21 NY3d 1029, 972 N.Y.S.2d 213 [2013], lv. denied 22 NY3d 951, 997 N.Y.S.2d 179 [2013], citing Covenant v. Bd of Trustees, 30 Misc.3d 1205(A), 958 N.Y.S.2d 647 [Sup Ct., 2010] ). Likewise, there is no constitutionally protected property interest in the renewal of a charter under the United States Constitution.
Similar to Pinnacle (108 AD3d 1024, supra ), the 2011 charter agreement expressly provided that "[n]othing herein shall require the Chancellor or the [Board of] Regents to approve a Renewal Application" (Tuffaha Affirmation in Support [4B], Exhibit C, 2011 Charter, p 16). Here, the chancellor made a discretionary decision not to renew the school's charter based primarily upon their academic performance in the most recent charter term. The charter school exercised its due process when it appealed that decision. The school administration made oral and written presentations to a panel, mostly comprised of individuals from DOE's OSDCP. After the presentations and site visit, the panel recommended non-renewal to Chancellor Fariña. Thereafter, Chancellor Fariña concluded that her non-renewal decision would remain in effect.
There is no evidence to support petitioners' contention that the site visit during the appeal was "all-but-predetermined." Petitioners rely on a line of cases which state that even the probability of unfairness in adjudication is unconstitutional. However, Superintendent Winnicki is not named in any of the supporting documents as "leader" of this site visit. On the contrary, the Recommendation to Chancellor Fariña describes a visit conducted by four individuals which included Winnicki, superintendent of the community school district where the charter school is located, as well as three OSDCP officials (see Tuffaha Affirmation [4B], Exhibit E). This recommendation was authored by Laura Feijoo, Senior Supervising Superintendent Panel Chair, not Superintendent Winnicki.
Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456 [1975] ; Zagoreos v. Conklin, 109 A.D.2d 281, 491 N.Y.S.2d 358 [2 Dept., 1985] ; In re Murchinson, 349 U.S. 133, 75 S.Ct. 623 [1955] ; Heldman on Behalf of H.T. v. Sobol, 962 F.2d 148, 74 Ed. Law Rep. 1042 [2 Cir., 1992] ).
Superintendent Winnicki stated in her affidavit that contrary to petitioners' contentions, "[a]s a member, rather than the leader, of the site visit team, [she] was not in charge of deciding which classes to visit" (see Winnicki Affidavit [4C], at ¶ 7). She stated that she did not cut the visit short due to another appointment. "This site visit was originally calendared for 9:30 a.m. until 12:30 p.m. My next scheduled appointment was calendared for 3:30 p.m." (id. at ¶ 10). Further, Winnicki stated that she is not an opponent or adversary of charter schools (see id. at ¶ 12). However, even if Superintendent Winnicki was not a supporter of charter schools, there is no evidence that a probability of unfairness exists in the adjudication, where during one prong of the appeal process, Winnicki is one of four individuals making a recommendation and is not the ultimate adjudicator. It is but one of Chancellor Fariña's considerations in this appeals process.
This Court rejects the petitioners' contention stated during oral argument, that all superintendents are biased against charter schools due to financial motives. To say that all superintendents are financially motivated to close charter schools so that those students could be enrolled into their own community district schools is a "broad strokes" approach to a highly contested issue. Based on the foregoing, there is no proof in the record that Chancellor Fariña violated the United States or New York State constitutions, or in any way violated the charter school's right to due process in her decision not to renew the charter. Petitioners' remaining contentions with respect to this point, are without merit.
Petitioners' contention that the school was treated differently from similarly situates schools is discussed below, under Point III.
Point II: Chancellor Fariña violated the City of New York Administrative Procedures Act and New York State Education Law when the DOE created the Accountability Handbook.
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). The Chancellor uses the framework contained within the handbook when evaluating charter schools' success for the purpose of charter renewals. At issue here is whether such a handbook is considered a "rule" and which rule making authority, if any, applies to the DOE. For purposes of this discussion this Court will first identify the different rule making authorities under New York City and State law, raised by the parties.
Petitioner first argues that the accountability handbook was created in violation of the City of New York Administrative Procedures Act (CAPA). CAPA, as defined in chapter 45 of the New York City Charter, "imposes procedural requirements on New York City agencies relating to the promulgation of rules governing local agency practices" (Council of City of New York v. Dep't of Homeless Servs. of City of New York, 22 NY3d 150, 3 N.E.3d 128 [2013] ). Petitioner further argues that the accountability handbook violates the rulemaking procedures of New York State Education Law section 2590(d) and (g). Article 52–a of the Education Law applies "to the city school district of the city of New York" (New York State Education Law section 2590 ). Education Law section 2590(d) grants the New York City board and the chancellor the power to prescribe by-laws and regulations, as necessary, and describes the process through which these regulations should be promulgated. Education Law section 2590(g) states that the board of education has the power to approve any regulations proposed by the chancellor (see New York State Education law 2590[g][1][c] ).
CAPA
Petitioners contend that Chancellor Fariña violated CAPA, which imposes certain procedural requirements on rules promulgated by New York City agencies. Petitioners maintain that the Accountability Handbook is a rule promulgated by the DOE which is not compliant with CAPA. Petitioners aver that the handbook, which the Chancellor relied on in her non-renewal decision, was issued in the spring of 2015, four years into the charter school's most recent term.
Respondents contend that the DOE is not subject to CAPA, as the City of New York and the DOE are separate legal entities. Respondents maintain that public education falls under the purview of New York State, and localities are prohibited from enacting local laws which supersede state law. Therefore, "because the Education Law establishes the rule-making authority of DOE, Education Law § 2590(d), (g), CAPA does not apply to DOE" (Respondent's Memorandum of Law in Support of their Cross–Motion [4D], at p 17).
Respondents further contend that even if CAPA did apply to the DOE, the Accountability Handbook is not a "rule" within the meaning of CAPA. It would fall within section 1041(5)(b)(ii), an exception of CAPA's definition of a rule for "statements of general policy" (see Respondent's Memorandum of Law in Reply [6], p 7). The handbook is an explanatory document which describes the "Accountability Framework" for chancellor-authorized schools. It is made pursuant to the chancellor's discretionary authority (see Respondent's Memorandum of Law in Support of their Cross–Motion [4D], at p 17).
CAPA defines a "rule" as "the whole or part of any statement or communication of general applicability that (i) implements or applies law or policy, or (ii) prescribes the procedural requirements of an agency including an amendment, suspension, or repeal of any such statement or communication" (CAPA, New York City Charter, ch. 45, § 1041[5][i]-[ii] ). However, CAPA specifically exempts from the definition of a "rule", a "(i) statement or communication which relates only to the internal management or personnel of an agency which does not materially affect the rights of or procedures available to the public; (ii) form, instruction, or statement or communication of general policy, which in itself has no legal effect but is merely explanatory" (CAPA, New York City Charter, ch. 45, § 1041[5][b][i]-[ii] ).
Much like CAPA, there is the State Administrative Procedure Act (SAPA), which "defines a rule' in comparable terms" to CAPA (Council of City of New York v. Dep't of Homeless Servs. of City of New York, 22 NY3d 150, supra ). SAPA also includes a similar exemption for interpretive statements of general policy which are explanatory in nature, and have no legal effect (see SAPA § 102 [2 ] [b][iv]; compare CAPA § 1041[5][b][ii]; see also Callahan v. Carey, 2012 N.Y. Slip Op. 30400(U), citing Street Vendor Project v. City of New York, 10 Misc.3d 978, 811 N.Y.S.2d 555 [Sup.Ct., 2005] ["The definition of a rule under CAPA is consistent with the definition a rule under the State Administrative Procedure Act (SAPA'). Consequently, legal authority interpreting SAPA is persuasive and may be relied upon in this court's inquiry"] ). The Appellate Division, Fourth Department, interpreted SAPA's definition of a rule in Pinnacle Charter Sch. v. Bd. of Regents of Univ. of State of New York, (108 AD3d 1024, supra ). The Court held that the New York State Education Department's guidelines for charter renewal applications "are excluded from [SAPA's] rulemaking requirement" (108 AD3d 1024, supra , appeal dismissed, 21 NY3d 1029, supra , lv. denied 22 NY3d 951, supra ). The court in Pinnacle further held that "[t]he charter renewal process, moreover, is not an adjudicatory proceeding' within the meaning of State Administrative Procedure Act § 102(3), and thus the requirements of section 301(3) are inapplicable" (id. ).
In the instant case, Chancellor Fariña, like the Board of Regents in Pinnacle, "was acting pursuant to [her] discretionary authority" when she denied the charter school's renewal application. As SAPA and CAPA have comparable definitions and requirements, the Appellate Division, Fourth Department, in Pinnacle is the controlling authority. Accordingly, in this matter, Chancellor Fariña was not required to promulgate rules pursuant to CAPA with respect to her exercise of such discretionary authority (see id. ).
Even assuming, arguendo, that the Accountability Handbook was subject to the administrative procedures of SAPA or CAPA, the handbook does not constitute a "rule" under the definitions defined therein. Legal authority interpreting CAPA and SAPA "have said that a rule or regulation' is a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers' " (Cubas v. Martinez, 8 NY3d 611, 870 N.E.2d 133 [2007], quoting Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 66 N.Y.2d 948, 498 N.Y.S.2d 780 [1985] ; see also Council of City of New York v. Dep't of Homeless Servs. of City of New York, 22 NY3d 150, supra ). However, a guideline is not considered a "rule" or "regulation" where "they encompass both fixed and variable factors unique to a facility to be considered on a case-by-case analysis [internal quotation marks omitted]" (New York City Transit Auth. v. New York State Dep't of Labor, 88 N.Y.2d 225, 644 N.Y.S.2d 463 [1996], quoting Matter of Trustees of Masonic Hall & Asylum Fund v. Axelrod, 174 A.D.2d 199, 578 N.Y.S.2d 690 [3 Dept., 1992] ). Accordingly, assuming, arguendo, that SAPA or CAPA applied to the Accountability Handbook, the handbook would be considered a guideline and not a rule.
Even further assuming, arguendo, that CAPA or SAPA did apply, the Accountability Handbook should be considered an exemption as it is a communication of general policy which is merely explanatory (see CAPA § 1041(5)(b)(ii); see also SAPA § § 102[2][b][iv] ). The Accountability handbook is self-described as "the tools through which the NYC DOE measures and evaluates charter school performance annually and upon renewal" (see Verified Petition [1B], Exhibit A, Accountability Handbook, at p 3). The handbook describes a framework through which each charter school will be evaluated. 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? In making a determination, the DOE chancellor considers the results of the individual school, as compared to other schools in the district and to city-wide results.
Similar to the guidelines presented in New York City Transit Auth. v. New York State Dep't of Labor (88 N.Y.2d 225, supra ), the Accountability Handbook guidelines do not dictate the result of the determination to be made. The handbook encompasses variable factors whose results are unique to each charter school. Based on this framework, the chancellor makes a discretionary decision on a case-by-case basis. The handbook does not describe a rigid policy, which is then comprehensively applied or substantially alters future determinations (cf Council of City of New York v. Department of Homeless Services of City of New York, 22 NY3d 150, supra ; Schwartfigure v. Hartnett, 83 N.Y.2d 296, 610 N.Y.S.2d 125 [1994] ). Rather, the handbook merely publishes the framework utilized by the DOE when making these determinations, so that the information is clear and readily available to charter school administrators. Based on the foregoing, there is simply no indicia that Chancellor Fariña or the DOE violated CAPA in adhering to the framework set forth in the Accountability Handbook in their non-renewal decision.
New York State Education Law section 2590
"While the 2002 amendments to the Education Law (L 2002, ch 91) providing for greater mayoral control significantly limited the power of the Board of Education, the City and the Board remain separate legal entities" (Perez ex rel. Torres v. City of New York, 41 AD3d 378, 837 N.Y.S.2d 571 [1 Dept., 2007] [internal citation omitted], lv. denied, 10 NY3d 708, 859 N.Y.S.2d 393 [2008], citing Gonzalez v. Esparza, 2003 U.S. Dist LEXIS 13711, 2003 WL 21834970, [SDNY, 2003] ). Although the Board of Education now consists partially of appointments by the Mayor of the City of New York (see New York State Education Law § 2590–b[1][a] ), the City School District of the City of New York is still governed by the New York State Education Law.
Counsel for petitioner and respondents make inconsistent arguments with respect to the applicability of New York State Education Law sections 2590(d) and (g). The City first argued, as stated above, that CAPA's rulemaking provisions could not apply to the DOE's Accountability Handbook because CAPA would supersede the state Education Law, which is not allowed pursuant to Municipal Home Rule Law section 11(1)(c) (see Tuffaha Affirmations [2C] at p 12 & [4D] at p 17). Petitioners argued in opposition to the City's cross-motion that CAPA would not supersede the Education Law, because those sections do not create a rule-making process for the DOE. They merely grant the panel for educational policy (PEP) the power to approve regulations proposed by the chancellor (see Memorandum of Law in Opposition to City's Cross–Motion [5B], at p 23). Petitioner then argues that if CAPA does not apply, then the DOE failed to adhere to the "rulemaking requirements of N.Y. Educ. Law section 2590–g and the procedures specified in section 2.5 of the PEP bylaws" (see id., at 24).
At oral argument, petitioners conceded that this argument was made in response to the respondents' argument that administrative procedure rules cannot supersede state law. Petitioners further conceded that the PEP argument was not properly pled in the petition (see Oral Argument Transcript, July 11, 2016, p 35). Inasmuch as this Court determined that the Accountability Handbook is a communication of general policy which sets forth the Chancellor's framework in making renewal determinations rather than a rule set forth by the DOE, and this allegation was not pled in the petition, this argument is without merit and need not be addressed.
Point III: Chancellor Fariña violated the Charter Schools Act and DOE's own regulations, rules and procedures
Petitioners contend that Chancellor Fariña violated DOE's own regulations, rules, and procedures, which renders her decision arbitrary and capricious. Petitioners state that the DOE deviated from regular and customary practice in their failure to (1) conduct an annual comprehensive review for 2014; (2) put the charter school on academic probation; and (3) issue a one-year charter extension. Petitioners aver that these failures deprived the charter school of procedural notice that their charter was at risk, and would have given the school an opportunity to cure their academic deficiencies prior to submitting their renewal application for a full charter term (see Petitioners' Memorandum of Law in Support of the Order to Show Cause [1C], at p 11).
Respondents contend that petitioners fail to "specify a single provision of the Education Law that the Respondents purportedly violated" (Respondent's Memorandum of Law in Support of their Cross–Motion [4D], at p 11). Counsel maintains that "when asked by Justice Baily–Schiffman at the TRO [temporary restraining order] hearing, and Justice Genovesi at the Preliminary Injunction Hearing, to specify a statutory violation of the Education Law, Petitioners' counsel conceded there was no such violation" (id.; see also Oral Argument Transcript, June 23, 2016, at p 41).
Respondents further contend that Chancellor Fariña followed lawful procedure in making the non-renewal decision. Respondents stated that the allegation that the DOE did not conduct an annual review in 2014 is incorrect. A copy of the Annual Comprehensive Review Report for the 2013–2014 school year is annexed to the Tuffaha Affirmation in Support [4B] as Exhibit G. Respondents aver that the chancellor is not required to place a school on probation prior to a renewal determination. The Accountability Handbook states that the chancellor may place a school on probation, at her discretion (see Tuffaha Affirmation in Support [4B], Exhibit H, Accountability Handbook, p 14). Respondents state that it is disingenuous for petitioners to argue that they did not receive notice of their struggling academic performance. Petitioners acknowledged at their oral presentation for the administrative appeal that the charter school had struggled academically in recent years and stated that they had worked to "revamp the academic offerings with the goal of improved performance" (Respondent's Memorandum of Law in Support of their Cross–Motion [4D], at p 13).
At oral argument, before this Court, respondents conceded that the DOE does, in certain circumstances, offer a short term charter extension. However, respondents contend that the charter school is distinguishable from other charter schools seeking renewal based upon their history. Counsel for respondents explained that it is not the DOE's general practice to offer short term extensions to charter schools who are failing academically prior to renewal. One-year charter extensions are generally offered to schools who are coming off of their first five-year charter term. The purpose of the one-year extension in those cases is that one five-year term offers limited data upon which to measure the school's academic success. By allowing the school a one-year extension, the DOE has more data upon which to measure the school's success over time, for a renewal decision. The City argues that by virtue of this school's history, they already had grades kindergarten through 8th upon which to evaluate the school's academic progress over time. Therefore, there was sufficient data in the most recent five-year term for the chancellor to utilize in her renewal decision. Based on this, the DOE did not offer the charter school a one-year extension (see Oral Argument Transcript, July 11, 2016, p 39–41; see also Oral Argument Transcript, June 23, 2016, p 73).
In the instant case, there is no evidence that Chancellor Fariña violated the Charter Schools Act (Article 56 of the New York State Education Law) or the DOE's own regulations, rules and procedures. With respect to the Charter Schools Act, as stated above, petitioners did not properly raise any violations. Further, petitioners' contention that the DOE violated its own rules, regulations and procedures is without merit. As stated by counsel for respondents, the DOE conducted an annual comprehensive review in 2014 (see Tuffaha Affirmation in Support [4B], Exhibit G).
Furthermore, petitioners failed to identify any rule which requires that the school be placed on academic probation or be granted a one-year charter extension prior to a non-renewal decision. Probation and one-year extensions are not required pursuant to the school's most recent charter. The charter specifically provides that "[n]othing herein shall require the chancellor or the [Board of] Regents to approve a Renewal Application" (Tuffaha Affirmation in Support [4B], Exhibit C, Charter Agreement at p 16). The charter does not state that the DOE or the chancellor must place a school on academic probation or must grant a charter extension prior to a non-renewal decision. The charter provides that if the school "is not progressing toward one or more of the performance or education goals set forth in the charter" the DOE "may [emphasis added] develop and implement a corrective action plan" (id. at p 15).
In addition, a probationary period and one-year charter extensions are not required pursuant to the DOE's Accountability Handbook. The handbook describes the framework through which the schools are analyzed by the DOE. It does not require that schools be placed on academic probation or granted short-term charter extensions. With respect to renewal determinations, the handbook provides that in "cases where a school has demonstrated mixed academic results or uncertain organizational or financial viability, a short-term renewal may [emphasis added] be recommended (with or without condition)" (Verified Petition [1B], Exhibit A, Accountability Handbook, p 22).
There is no evidence that uncertain organizational or financial viability of the charter school was a consideration in Chancellor Fariña's non-renewal decision.
With respect to petitioners' contention that they were treated differently from similarly situated schools by not receiving the short-term charter extension, counsel for respondents, who works specifically for the DOE's OSDCP, shed some light as to the DOE's general procedures. At oral argument counsel explained that the use of short-term charter extensions was utilized by the DOE when they could not accurately ascertain the school's academic results based on the data collected. The extension appears to be for the chancellor's benefit, in having sufficient data to make an informed decision. It is clear that the DOE had more than sufficient data on which to determine this charter school's academic progress. Therefore, a short-term extension was not required. Accordingly, there is no evidence that Chancellor Fariña violated the New York State Charter Schools Act or the DOE's own regulations, rules and procedures in her non-renewal decision.
Point IV: Chancellor Fariña exceeded her authority in the role of DOE Chancellor
Petitioners contend that Chancellor Fariña acted in excess of her authority in determining the schools' non-renewal, when she considered the school's 15–year history, rather than exclusively the school's performance during the most recent 5–year charter term. Petitioners further contend that the DOE evaluated the charter school using flawed and fluctuating metrics. Petitioners maintain that the DOE relied on proficiency ratings of Common Core testing, which have been called into question by Governor Cuomo's Common Core Task Force. The task force concluded that results from Common Core testing should be advisory. "The Board of Regents issued a four-year moratorium on the use of Common Core test results in teacher evaluations" (id., p 15; see also Order to Show Cause [1A], Kern Affidavit, ¶ 24). Additionally, the DOE's assessment procedures have changed repeatedly over the course of the charter school's last charter term (see id., p 16). All of which, differ from the metrics used for the purpose of renewal decisions, which is outlined in the Accountability Handbook (id. ).
At oral argument, respondent contends that the Charter Schools Act "is a separate system of schools where the whole framework is economy for accountability" (see Oral Argument Transcript, July 11, 2016, p 36). The Charter Schools Act "holds charter schools to a higher standard. They [are] require[d] explicitly to meet or exceed the student performance standards in the district" (see id ., p 43). Respondent avers that the chancellor's decision clearly demonstrates that her decision was based on poor academic performance in the most recent charter term. Respondent maintains that the school simply did not meet its charter agreement goals and obligations in the most recent five-year term, and that is the reason for the chancellor's decision not to renew the charter (see id., p 38).
In the instant case, petitioners' contention that the chancellor exceeded her authority in looking at the school's history is without merit. As discussed above, counsel represented to this Court at oral argument that it is the practice of the DOE to offer one-year charter extensions where the chancellor lacks sufficient data upon which to make a renewal decision. This generally occurs where a charter school is seeking renewal after its first five-year charter term, and as a result, data is limited. However, in the instant case, given that the school has a 15–year history, the chancellor had sufficient data upon which to make her renewal decision. In this respect, acknowledging the school's history is not unreasonable.
Notwithstanding this clarification from counsel, the Chancellor specifically stated in her final determination letter that her decision was based "primarily as a result of BwCCS' failure to show academic success during BwCCS' third charter term" (see Verified Petition [1B], Exhibit E, Final Determination Letter, May 27, 2016). There is no evidence that the chancellor considered the charter school's 15–year academic history in making her determination. The renewal report shows that although the school excelled in English Language Arts (ELA) for students with disabilities and English language learners, the school scored below that of the average student in the community school district, the City of New York, and the State of New York throughout the third charter term.
The charter agreement requires that the school "meet or exceed the student performance standards adopted by the [Board of] Regents" (see Tuffaha Affirmation in Support [4B], Exhibit C, Charter, p 4). "Charter schools are expected to show results that meet or exceed the CSD [community school district] and citywide averages" (Tuffaha Affirmation in Support [4B], Exhibit E, Recommendation Report). However, the school failed to meet or exceed average student performance in both ELA and math in their most recent charter term. As a result of this failure, the chancellor decided not to renew the charter. Contrary to petitioners' contention, Chancellor Fariña did not exceed her authority.
With respect to petitioners' argument that the charter school was evaluated based on flawed metrics, petitioners rely on a 2015 task force report. This report called for a moratorium on common core testing. At oral argument, counsel for petitioners were unable to sufficiently explain to this Court how these metrics had a greater effect on evaluating Charter Schools alone, as compared to DOE schools (see Oral Argument Transcript, July 11, 2016, p 57). District schools and charter schools implemented common core simultaneously. Any fluctuations in scoring based on common core would be reflected in the proficiency data of all schools, charter and district alike.
Furthermore, Senior Supervising Superintendent Panel Chair Laura Feijoo rejected this assertion in the Recommendation Report, stating that
[c]onsistent with the Charter Schools Act, the Chancellor's assessment of charter school academic performance is tied to New York State test results The Chancellor looks at schoolwide absolute proficiency and growth. In recent years, OSDCP has changed these metrics. However, these metrics are always based on the New York State test data.
(Tuffaha Affirmation in Support [4B], Exhibit E, Recommendation Report).
Based on the foregoing, petitioners failed to demonstrate that Chancellor Fariña acted in excess of the grant of authority given in her role as chancellor when making her decision to not renew the charter agreement.
Motion to Dismiss
As stated above, the Charters Schools Act of 1991 provides that,
The denial of an application for a charter school by a charter entity shall be in writing and shall state the reasons for the denial. Notwithstanding any provision of law to the contrary, such denial is final and shall not be reviewable in any court or by any administrative body.
(New York State Education Law § 2852[6] ).
Although judicial review is proscribed by the Education Law, this Court retains the power to determine whether Chancellor Fariña's actions were unconstitutional, illegal or in excess of her authority (see Matter of Fahari Acad. Charter Sch. v. Bd. of Educ. of City Sch. Dist. of City of New York, 137 AD3d 1127, supra ).
Inasmuch as the petitioners failed to demonstrate that Chancellor Fariña's actions were illegal, unconstitutional, or in excess of her jurisdiction, this Court lacks jurisdiction to review the chancellor's non-renewal decision pursuant to New York State Education Law section 2852(6). Based on the foregoing, respondent's cross-motion to dismiss the petition is granted in its entirety.
Conclusion
Petitioners' order to show cause for a preliminary injunction and to vacate Chancellor Fariña's non-renewal decision is denied, in its entirety. Petitioners failed to demonstrate that Chancellor Fariña's non-renewal decision was illegal, unconstitutional or in excess of jurisdiction. Petitioners' application for a preliminary injunction is moot, as a final determination has been reached. The City's cross-motion to dismiss the petition is granted. Anything not decided herein is denied.
The foregoing constitutes the decision and order of this Court.