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In re Norris

Supreme Court, New York County

May 29, 2012

In the Matter of Melinda Norris, et al., Petitioners, Pursuant to Article 78,
Dennis Walcott, in his Official Capacity as Chancellor of the New York City Board of Education; The Board of Trustees of the State University of New York; and Brooklyn Success Academy 3 Charter School, Respondents.

Peter H. Moulton, J.

Petitioners in this Article 78 proceeding seek declaratory and injunctive relief concerning the award of a school charter to respondent Brooklyn Success Academy 3 ("BSA 3"). Petitioners are parents of students who attend public schools in Community School District 15, the district where BSA 3 has been sited by the City's Department of Education ("DOE"). A number of petitioners have children in schools housed in the school building denominated K293, the building where the DOE has decided to "co-locate" BSA 3 with other schools.

It is undisputed that BSA 3's application for a charter indicated that it was seeking to place the school in Community School Districts 13 or 14, and that, after the issuance of the charter, the City's Department of Education gave the school space in Community School District 15. The three districts abut each other in Brooklyn.

Petitioners argue that this move to another Community School District requires a revision of BSA 3's charter.

However, petitioners' primary claim as stated in their proposed amended petition is that the Education Law mandates community input before a charter school may be approved. Petitioners assert that true community input for BSA 3 was not sought by BSA 3's parent organization. According to petitioners respondent Trustees of the State University of New York ("SUNY Trustees") blindly accepted BSA 3's representations 1) that it had performed conscientious community outreach, and 2) that this outreach showed that the relevant community was overwhelmingly supportive of the school. Petitioners characterize BSA 3's community outreach as feeble, bordering on a sham, and argue that the SUNY Trustees should have rejected the charter application on that ground.

As a threshold matter, respondent BSA 3 argues that petitioners do not have standing because they have failed to demonstrate any injury in fact that places them within the zone of interests protected by the Education Law. Petitioners respond that the Educational Impact Statement concerning BSA 3's co-location with other schools in Building K293 show that co-location will cause the building to reach 107% capacity in the 2014-15 school year. They also argue that they are part of the community that was allegedly ignored by BSA 3's outreach efforts, and that they were harmed by the failure of BSA 3 and the SUNY Trustees to take their views into account. BSA 3 also claims that petitioners' claims are time-barred.

On the merits, respondents argue that BSA 3's application materials showed more than sufficient community outreach and support for the school. Respondents argue that the siting of BSA 3 in Community School District 15 was caused by space constraints in school buildings in Community School Districts 13 and 14, and that no further amendment to the charter is required by law or regulation for this move to an adjacent community school district in the same borough.

Before the court are the following:

1) petitioners' original petition and the respondents' answers and various objections in point of law;
2) the intervention motion of various parents who wish to enter the lottery for BSA 3. The interveners are allied in interest with BSA 3 and are represented by the same counsel; and
3) petitioners' motion to file an amended petition and respondents' opposition to the motion.


The sequence of events that led to the issuance of a charter to BSA 3 is not in dispute and is summarized below.

On January 3, 2011, the 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 28, 2011, BSA 3 submitted a joint application with two other schools, Brooklyn Success Academies 2 and 4, concerning proposed charter schools for Community School Districts 13 and 14. All three charter schools are managed by Success Academy Charter Schools ("Success Academy") a non-profit education organization that operates a network of charter schools in New York City. The application made a number of representations concerning outreach conducted by Success Academy to parents, office holders, and other stakeholders in Community School Districts 13 and 14. It attached 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 for BSA 2-4 be granted. Chancellor Walcott also noted that there might not be room for all three schools in Community School Districts 13 and 14, and raised the possibility that one or more of the schools might have to be sited in "other contiguous districts."

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 its approval. The SUNY Trustees 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 assigned to a specific building. Thereafter, the Board of Regents posted online minutes from the meeting in which BSA 3's charter was approved.

On October 28, 2011, the Department of Education issued a public notice proposing to locate BSA 3 in building K293 in Community School District 15. Three schools currently occupy the building. The notice contained a link to the Educational Impact Statement, and also provided information concerning a public hearing on November 29, 2011, at which DOE's Panel for Educational Policy ("PEP") would take public input regarding the co-location of BSA 3 with the other three schools. The meeting went forward. Among the speakers and attendees at the meeting were parents of elementary school-aged children, elected officials, members of the Community Education Council, members of the School Leadership Team, and teachers.

On December 14, 2011, the DOE's governing body, the Panel on Educational Policy, voted to approve the co-location of BSA 3 at building K293 in Community School District 15. On January 25, 2012, the SUNY Trustees found that this decision was outside of its purview and did not require an amendment to BSA 3's charter. Petitioners assert that they subsequently attempted to appeal this decision, without success, to H. Carl McCall, the Chairman of the SUNY Trustees.


A. Petitioners' Motion to Amend the Petition

After oral argument on the original petition, and after the court had worked out a briefing schedule with the parties, petitioners moved to amend the petition. The proposed amended petition retains the claim in the original petition: that Education Law § 2852(7) requires that BSA 3 revise its charter before it can be sited in a Community School District other than the districts discussed in its charter application. However, the amended petition adds claims under Education Law §§ 2851(2)(q) and 2852(9-a)(b)(ii). In these new claims, petitioners assert that respondent SUNY Trustees unlawfully approved BSA 3's charter despite Success Academy's failure to seek true community input concerning BSA 3.

Leave to amend a pleading shall be "freely given" unless the proposed new claims are clearly without merit or the opposing parties can demonstrate prejudice or surprise. (CPLR 3025; see Anoun v City of New York, 85 A.D.3d 694 [1st Dept 2011]; Eighth Ave. Garage Corp. v H.K.L Realty Corp., 60 A.D.3d 404 [1st Dept 2009].)

The proposed new claims are not clearly without merit. They are based in specific sections of the Education Law and supported by facts set forth in the initial petition. There are few new facts alleged in the amended petition, and only one additional exhibit. Respondents have made no colorable claim of prejudice. The new claims are foreshadowed by the facts alleged in the initial petition. The claims mirror those asserted by another Article 78 proceeding naming the same respondents, challenging BSA ...

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