Third Department Sets Test on Charter Schools

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In its first decision on charter schools since giving public school districts the right to challenge a charter application, an appellate panel last week sent the bid of the Roosevelt Children’s Academy back to State University of New York trustees.

The Appellate Division, Third Department, said the SUNY Board of Trustees neglected to make the mandatory statutory finding that the issuance of a charter was likely to improve student learning. However, the court also rejected arguments of the Roosevelt Union Free School District that the state trustees failed to appropriately consider the fiscal impact and community opinion. The trustees could take up the matter as soon as their next meeting, which is tomorrow.

Also last week, the Third Department reversed two criminal convictions for ineffective assistance of counsel. In another criminal case, the court overturned a conviction for interests of justice reasons while a concurring judge would have also found ineffective assistance. Roosevelt v. Board of Trustees, 89376, arose as a result of a first-impression ruling in April (282 AD2d 166), when the Third Department overturned a trial court and provided a way for school districts to oppose the issuance of charters that essentially allow competitors to function within their geographic boundaries and deplete their financial resources. In the earlier decision, Justice Anthony J. Carpinello wrote that such an action can be pursued under Article 78 of the Civil Practice Law and Rules. With that decision in hand, the Roosevelt school district pursued an administrative challenge to the issuance of a charter to Children’s Academy Charter School Inc.

Charter schools remain controversial, both in concept and in practice. They are authorized under the Charter Schools Act of 1998, and are designed to foster competition and innovation in public schools. Charter schools operate with an independent license or "charter" issued by the local school board, the state Board of Regents or the Board of Trustees of the State University.

In the Roosevelt matter, the local school board actively opposed the issuance of a charter. Roosevelt is a poor district that mainly serves minority students, and local officials were concerned that the operation of a charter school would exacerbate its financial problems. Regardless, the SUNY Board of Trustees approved the charter, resulting in this action.

Last week, the Third Department said in another opinion by Justice Carpinello that the matter must be returned to the trustees for some i-dotting and t-crossing. The court said the trustees are required by @ 2852 of the Education Law to make a finding that "granting the application is likely to improve student learning and achievement," and they neglected to fulfill that obligation.

"Notwithstanding the logical inference that a finding of improved student learning was implicit in the ultimate determination, we are precluded from so presuming and, in the absence of an explicit finding to that effect in the record, a remittal is required," Justice Carpinello wrote. However, the court in a footnote rejected the school district’s contention that the finding of improved student learning need apply to all students within the district.

Joining the opinion were Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure, Edward O. Spain and Robert S. Rose. The case was argued by Stanley A. Camhi of Jaspan, Schlesinger & Hoffman LLP in Garden City for the Roosevelt school board; Assistant Attorney General Marcus J. Mastracco for the SUNY Board of Trustees; and Alyce H. Goodstein of Rains & Pogrebin PC in Mineola for Roosevelt Children’s Academy.

Acting as amicus curiae were Briscoe R. Smith of the Atlantic Legal Foundation in Manhattan for the New York Charter Public Schools Association, and from Lawrence W. Reich of Ingerman & Smith LLP in Northport for the Uniondale Union Free School District.

John Caher

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