| New York City Parents Union v Board of Educ. of the City Sch.Dist. of the City of N.Y. |
| 2015 NY Slip Op 00313 [124 AD3d 451] |
| January 13, 2015 |
| Appellate Division, First Department |
[*1]
| New York City Parents Union et al.,Appellants, v Board of Education of the City School District of the City of NewYork et al., Respondents, and Harlem Success Academy Charter School 1 et al.,Intervenors-Respondents. |
Advocate for Justice, New York (Arthur Z. Schwartz of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel),for Board of Education of the City School District of the City of New York, and DennisM. Walcott, respondents.
Kirkland & Ellis LLP, New York (Jay P. Lefkowitz of counsel), for HarlemSuccess Academy Charter School 1, Harlem Success Academy Charter School 4, OceanHill Collegiate Charter School, Empower Charter School, New Visions Charter HighSchool for Humanities, Democracy Preparatory Charter School, New Visions CharterHigh School for Advanced Math and Science, Teaching Firms of America CharterSchool, Invictus Preparatory Charter School, Summit Academy Charter School, DreamCharter School, Brooklyn Charter School, Inwood Academy for Leadership CharterSchool, La Cima Elementary Charter School, Coney Island Preparatory Charter School,South Bronx Classical Charter School, Girls Preparatory Charter School, and New YorkCity Charter School Center, respondents.
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered June 19,2013, dismissing the complaint, unanimously affirmed, without costs.
Plaintiffs are two public school parent advocacy groups, an advocacy group for poorand working-class people, and parents of children who attend or attended public schools.They contend that defendant Board of Education's (BOE) practice of co-locating charterschools within traditional public schools without requiring them to pay rent violates theEducation Law and article XI of the New York Constitution, and results in an unequalallocation of funding between charter schools and public schools and inequitabletreatment of public school students.
The argument that BOE's failure to charge co-located charter schools for their use ofpublic school building facilities violates Education Law § 2853 (4) (c) hasbeen rendered moot by the enactment of an amendment to the law, effective April 1,2014, providing that "[a] school district shall permit any charter school granted approvalto co-locate, to use such services and facilities without cost" (see L 2014, ch 56,§ 1, part BB, § 1) (see Matter of Spano v O'Rourke, 59NY2d 946, 949 [1983]).
Plaintiffs' remaining statutory claims allege violations of Education Law§§ 2853 (3) (a-3) and 2590-h. However, plaintiffs did not exhausttheir administrative remedies before seeking judicial review (see Education Law§ 310 [7]), and they have not demonstrated the futility of pursuing thoseremedies or another exception to the exhaustion doctrine (Matter of R.B. v Department ofEduc. of the City of N.Y., 115 AD3d 440 [1st Dept 2014]).
The constitutional claim fails to state a cause of action since it does not adequatelyallege[*2]"the deprivation of a sound basic education"and "causes attributable to the State" (New York Civ. Liberties Union v State of New York, 4 NY3d175, 178-179 [2005]). Plaintiffs allege that the education provided to traditionalpublic school students is inferior to that provided to co-located charter school students.However, the soundness of a basic education is not measured by comparing theeducational opportunities offered by other districts or other schools (see ReformEduc. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86 NY2d 279 [1995]). Thecomplaint gives examples of poor conditions in four public schools, but it does not allegeany "district-wide" failure (see New York Civ. Liberties Union, 4 NY3d at 182),and it does not allege that as a result of these conditions the students in these four schoolsare being deprived of the opportunity to learn "basic literacy, calculating, and verbalskills" (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 316[1995]).
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Tom, J.P., Friedman, Saxe and Kapnick, JJ. [Prior Case History:2013 NY Slip Op 32890(U).]