N.Y. Education Law § 2853: Charter school organization; oversight; facilities

§ 2853. Charter school organization; oversight; facilities. 1.

Organization and legal status. (a) Upon the approval of a charter by

the board of regents, the board of regents shall incorporate the charter

school as an education corporation for a term not to exceed five years,

provided however in the case of charters issued pursuant to subdivision

nine-a of section twenty-eight hundred fifty-two of this article the

board of regents shall incorporate the charter school as an education

corporation for a term not to exceed five years in which instruction is

provided to pupils plus the period commencing with the effective date of

the charter and ending with the opening of the school for instruction.

Such certificate of incorporation shall not modify or limit any terms of

the charter approved by the board of regents. Upon approval of an

application to renew a charter, the board of regents shall extend the

certificate of incorporation for a term not to exceed five years. Upon

termination or nonrenewal of the charter of a charter school pursuant to

section twenty-eight hundred fifty-five of this article, the certificate

of incorporation of the charter school shall be revoked by the board of

regents pursuant to section two hundred nineteen of this chapter,

provided that compliance with the notice and hearing requirements of

such section twenty-eight hundred fifty-five of this article shall be

deemed to satisfy the notice and hearing requirements of such section

two hundred nineteen. It shall be the duty of the trustees of the

charter school to obtain federal tax-exempt status no later than one

year following approval of a charter school by the board of regents. For

purposes of this article, "certificate of incorporation" shall mean the

provisional charter issued by the board of regents to form the charter

school as an educational corporation pursuant to sections two hundred

sixteen and two hundred seventeen of this chapter.

(b) An education corporation organized to operate a charter school

shall have all corporate powers necessary and desirable for carrying out

a charter school program in accordance with the provisions of this

article, other applicable laws and regulations and the terms of the

charter, including all of the powers of an education corporation formed

to operate an elementary or secondary school and those powers granted

under the provisions of the not-for-profit corporation law that are made

applicable to charter schools by section two hundred sixteen-a of this

chapter. The powers of the trustees of the charter school shall include

those powers specified in section two hundred twenty-six of this

chapter.

(b-1) An education corporation operating a charter school shall be

authorized to operate more than one school or house any grade at more

than one site, provided that a charter must be issued for each such

additional school or site in accordance with the requirements for the

issuance of a charter pursuant to this article and that each such

additional school or site shall count as a charter issued pursuant to

subdivision nine of section twenty eight hundred fifty-two of this

article; and provided further that:

(A) a charter school may operate in more than one building at a single

site; and

(B) a charter school which provides instruction to its students at

different locations for a portion of their school day shall be deemed to

be operating at a single site.

(c) A charter school shall be deemed an independent and autonomous

public school, except as otherwise provided in this article, and a

political subdivision having boundaries coterminous with the school

district or community school district in which the charter school is

located. The charter entity and the board of regents shall be deemed to

be the public agents authorized to supervise and oversee the charter

school.

(d) The powers granted to a charter school under this article

constitute the performance of essential public purposes and governmental

purposes of this state. A charter school shall be exempt to the same

extent as other public schools from all taxation, fees, assessments or

special ad valorem levies on its earnings and its property, including

property leased by the charter school. Instruments of conveyance to or

from a charter school and any bonds or notes issued by a charter school,

together with the income therefrom, shall at all times be exempt from

taxation.

(e) A charter school shall not have the power to levy taxes or to

acquire property by eminent domain.

(f) The board of trustees of the charter school shall have final

authority for policy and operational decisions of the school. Nothing

herein shall prohibit the board of trustees of a charter school from

delegating decision-making authority to officers and employees of the

school in accordance with the provisions of the charter.

(g) Notwithstanding any provision of law to the contrary, no civil

liability shall attach to any charter entity, the board of regents, or

to any of their members or employees, individually or collectively, for

any acts or omissions of the charter school. Neither the local school

district, the charter entity nor the state shall be liable for the debts

or financial obligations of a charter school or any person or corporate

entity who operates a charter school.

2. The board of regents and charter entity shall oversee each school

approved by such entity, and may visit, examine into and inspect any

charter school, including the records of such school, under its

oversight. Oversight by a charter entity and the board of regents shall

be sufficient to ensure that the charter school is in compliance with

all applicable laws, regulations and charter provisions.

2-a. For schools approved by an entity described in paragraph (b) or

(c) of subdivision three of section twenty-eight hundred fifty-one of

this article, the school district in which the charter school is located

shall have the right to visit, examine into, and inspect the charter

school for the purpose of ensuring that the school is in compliance with

all applicable laws, regulations and charter provisions. Any evidence of

non-compliance may be forwarded by such school district to the board of

regents and the charter entity for action pursuant to section

twenty-eight hundred fifty-five of this article.

3. Facilities. (a) A charter school may be located in part of an

existing public school building, in space provided on a private work

site, in a public building or in any other suitable location. Provided,

however, before a charter school may be located in part of an existing

public school building, the charter entity shall provide notice to the

parents or guardians of the students then enrolled in the existing

school building and shall hold a public hearing for purposes of

discussing the location of the charter school. A charter school may own,

lease or rent its space.

(a-1) (i) For charters issued pursuant to subdivision nine-a of

section twenty-eight hundred fifty-two of this article located outside a

city school district in a city having a population of one million or

more inhabitants, the department shall approve plans and specifications

and issue certificates of occupancy for such charter schools. Such

charter schools shall comply with all department health, sanitary, and

safety requirements applicable to facilities and shall be treated the

same as other public schools for purposes of local zoning, land use

regulation and building code compliance. Provided however, that the

department shall be authorized to grant specific exemptions from the

requirements of this paragraph to charter schools upon a showing that

compliance with such requirements creates an undue economic hardship or

that some other good cause exists that makes compliance with this

paragraph extremely impractical. A demonstrated effort to overcome the

stated obstacles must be provided.

(ii) In a city school district in a city with a population of one

million or more, all charters authorized to be issued by the chapter of

the laws of two thousand ten which amended this subdivision shall be

obligated to comply with the department's health, safety and sanitary

requirements applicable to facilities to the same extent as non-charter

public schools in such a city school district.

(a-2) A charter school shall be deemed a nonpublic school for purposes

of local zoning, land use regulation and building code compliance if it

has been granted an exemption by the department pursuant to paragraph

(a-1) of this subdivision or if its charter was not issued pursuant to

subdivision nine-a of section twenty-eight hundred fifty-two of this

article.

(a-3)(1) Before a charter school may be located or co-located in an

existing public school building in a city school district in a city

having a population of one million or more inhabitants, the chancellor

shall identify which public school buildings may be subject to location

or co-location, provide the rationale as to why such public school

building is identified for location or co-location and shall make all

such information publicly available, including via the city board's

official internet website. In addition, the chancellor shall provide

widespread notice of such information including to the community

superintendent, community district education council and the

school-based management team. After a public school building has been

selected for a proposed location or co-location, the chancellor shall

develop a building usage plan in accordance with this paragraph.

(2) The building usage plan shall be developed by the chancellor for

each school that has been definitively identified for a location or

co-location. The building usage plan shall include, but need not be

limited to, the following information:

(A) the actual allocation and sharing of classroom and administrative

space between the charter and non-charter schools;

(B) a proposal for the collaborative usage of shared resources and

spaces between the charter school and the non-charter schools, including

but not limited to, cafeterias, libraries, gymnasiums and recreational

spaces, including playgrounds which assures equitable access to such

facilities in a similar manner and at reasonable times to non-charter

school students as provided to charter school students;

(C) justification of the feasibility of the proposed allocations and

schedules set forth in clauses (A) and (B) of this subparagraph and how

such proposed allocations and shared usage would result in an equitable

and comparable use of such public school building;

(D) building safety and security;

(E) communication strategies to be used by the co-located schools; and

(F) collaborative decision-making strategies to be used by the

co-located schools including the establishment of a shared space

committee pursuant to paragraph (a-four) of this subdivision.

(3) A building usage plan developed by the chancellor in accordance

with this paragraph shall be included within the educational impact

statement required by paragraph (b) of subdivision two-a of section

twenty-five hundred ninety-h of this title and be subject to the

requirements of subdivision two-a of such section prior to approval by

the board of education pursuant to paragraph h of subdivision one of

section twenty-five hundred ninety-g of this title.

(4) A building usage plan developed by the chancellor in accordance

with this paragraph may be revised and such revision shall require board

of education approval consistent with the requirements pursuant to

subdivision seven of section twenty-five hundred ninety-g of this title.

(5) The building usage plan shall be made publicly available by the

chancellor, including via the city board's official internet website,

and a copy shall also be filed with the city board, the impacted

community district education council, community boards, community

superintendent, and school based management team.

(a-4) In a city school district in a city having a population of one

million or more inhabitants, a shared space committee shall be

established in each public school building in which one or more charter

schools are located or co-located within a public school building with

non-charter public schools. The shared space committee shall be

comprised of the principal, a teacher, and a parent of each co-located

school. Such committee shall conduct regular meetings, at least four

times per school year, to review implementation of the building usage

plan developed pursuant to paragraph (a-three) of this subdivision.

(a-5) Notwithstanding any provision to the contrary, in a city school

district in a city having a population of one million or more

inhabitants, the determination to locate or co-locate a charter school

within a public school building and the implementation of and compliance

with the building usage plan developed pursuant to paragraph (a-three)

of this subdivision that has been approved by the board of education of

such city school district pursuant to paragraph (h) of subdivision one

of section twenty-five hundred ninety-g of this title and after

satisfying the requirements of subdivision two-a of section twenty-five

hundred ninety-h of this title may be appealed to the commissioner

pursuant to section three hundred ten of this chapter. Provided further,

the revision of a building usage plan approved by the board of education

consistent with the requirements pursuant to subdivision seven of

section twenty-five hundred ninety-g of this title may also be appealed

to the commissioner on the grounds that such revision fails to meet the

standards set forth in clause (B) of subparagraph two of paragraph (a-3)

of this subdivision. Following a petition for such appeal pursuant to

this paragraph, such city school district shall have ten days to

respond. The petition must be dismissed, adjudicated or disposed of by

the commissioner within ten days of the receipt of the city school

district's response.

(b) A charter school may pledge, assign or encumber its assets to be

used as collateral for loans or extensions of credit; provided, however,

that a charter school shall not pledge or assign monies provided, or to

be provided, pursuant to subdivision one of section twenty-eight hundred

fifty-six of this article in connection with the purchase or

construction, acquisition, reconstruction, rehabilitation or improvement

of a school facility.

(c) The office of general services shall annually publish a list of

vacant and unused buildings and vacant and unused portions of buildings

that are owned by the state and that may be suitable for the operation

of a charter school. Such list shall be provided to applicants for

charter schools and to existing charter schools. At the request of a

charter school or a prospective applicant, a school district shall make

available a list of vacant and unused school buildings and vacant and

unused portions of school buildings, including private school buildings,

within the school district that may be suitable for the operation of a

charter school.

(d) Notwithstanding any other provision to the contrary, in a city

school district in a city having a population of one million or more

inhabitants, the chancellor must first authorize in writing any proposed

capital improvements or facility upgrades in excess of five thousand

dollars, regardless of the source of funding, made to accommodate the

co-location of a charter school within a public school building. For any

such improvements or upgrades that have been approved by the chancellor,

capital improvements or facility upgrades shall be made in an amount

equal to the expenditure of the charter school for each non-charter

public school within the public school building. For any capital

improvements or facility upgrades in excess of five thousand dollars

that have been approved by the chancellor, regardless of the source of

funding, made in a charter school that is already co-located within a

public school building, matching capital improvements or facility

upgrades shall be made in an amount equal to the expenditure of the

charter school for each non-charter public school within the public

school building within three months of such improvements or upgrades.

(e) In a city school district in a city having a population of one

million or more inhabitants, charter schools that first commence

instruction or that require additional space due to an expansion of

grade level, pursuant to this article, approved by their charter entity

for the two thousand fourteen--two thousand fifteen school year or

thereafter and request co-location in a public school building shall be

provided access to facilities pursuant to this paragraph for such

charter schools that first commence instruction or that require

additional space due to an expansion of grade level, pursuant to this

article, approved by their charter entity for those grades newly

provided.

(1) Notwithstanding any other provision of law to the contrary, within

the later of (i) five months after a charter school's written request

for co-location and (ii) thirty days after the charter school's charter

is approved by its charter entity, the city school district shall

either: (A) offer at no cost to the charter school a co-location site in

a public school building approved by the board of education as provided

by law, or (B) offer the charter school space in a privately owned or

other publicly owned facility at the expense of the city school district

and at no cost to the charter school. The space must be reasonable,

appropriate and comparable and in the community school district to be

served by the charter school and otherwise in reasonable proximity.

(2) No later than thirty days after approval by the board of education

or expiration of the offer period prescribed in subparagraph one of this

paragraph, the charter school shall either accept the city school

district's offer or appeal in accordance with subparagraph three of this

paragraph. If no appeal is taken, the city's offer or refusal to make an

offer shall be final and non-reviewable. The charter school may appeal

as early as issuance of an educational impact statement for the proposed

co-location.

(3) The charter school shall have the option of appealing the city

school district's offer or failure to offer a co-location site through

binding arbitration in accordance with subparagraph seven of this

paragraph, an expedited appeal to the commissioner pursuant to section

three hundred ten of this chapter and the procedures prescribed in

paragraph (a-5) of this subdivision, or a special proceeding pursuant to

article seventy-eight of the civil practice law and rules. In any such

appeal, the standard of review shall be the standard prescribed in

section seventy-eight hundred three of the civil practice law and rules.

(4) If the appeal results in a determination in favor of the city

school district, the city's offer shall be final and the charter school

may either accept such offer and move into the space offered by the city

school district at the city school district's expense, or locate in

another site at the charter school's expense.

(5) For a new charter school whose charter is granted or for an

existing charter school whose expansion of grade level, pursuant to this

article, is approved by their charter entity, if the appeal results in a

determination in favor of the charter school, the city school district

shall pay the charter school an amount attributable to the grade level

expansion or the formation of the new charter school that is equal to

the lesser of:

(A) the actual rental cost of an alternative privately owned site

selected by the charter school or

(B) thirty percent of the product of the charter school's basic

tuition for the current school year and (i) for a new charter school

that first commences instruction on or after July first, two thousand

fourteen, the charter school's current year enrollment; or (ii) for a

charter school which expands its grade level, pursuant to this article,

the positive difference of the charter school's enrollment in the

current school year minus the charter school's enrollment in the school

year prior to the first year of the expansion.

(6) An arbitration in an appeal pursuant to this paragraph shall be

conducted by a single arbitrator selected in accordance with this

subparagraph from a list of arbitrators from the American arbitration

association's panel of labor arbitrators, with relevant biographical

information, submitted by such association to the commissioner pursuant

to paragraph a of subdivision three of section three thousand twenty-a

of this chapter. Upon request by the charter school, the commissioner

shall forthwith send a copy of such list and biographical information

simultaneously to the charter school and city school district. The

parties shall, by mutual agreement, select an arbitrator from the list

within fifteen days from receipt of the list, and if the parties fail to

agree on an arbitrator within such fifteen day period or fail within

such fifteen day period to notify the commissioner that an arbitrator

has been selected, the commissioner shall appoint an arbitrator from the

list to serve as the arbitrator. The arbitration shall be conducted in

accordance with the American arbitration association's rules for labor

arbitration, except that the arbitrator shall conduct a pre-hearing

conference within ten to fifteen days of agreeing to serve and the

arbitration shall be completed and a decision rendered within the time

frames prescribed for hearings pursuant to section three thousand

twenty-a of this chapter. The arbitrator's fee shall not exceed the rate

established by the commissioner for hearings conducted pursuant to

section three thousand twenty-a of this chapter, and the cost of such

fee, the arbitrator's necessary travel and other reasonable expenses,

and all other hearing expenses shall be borne equally by the parties to

the arbitration.

4. Public and private assistance to charter schools. * (a) For

purposes of sections seven hundred one, seven hundred eleven, seven

hundred fifty-one and nine hundred twelve of this chapter, a charter

school shall be deemed a nonpublic school in the school district within

which the charter school is located. Special education programs and

services shall be provided to students with a disability attending a

charter school in accordance with the individualized education program

recommended by the committee or subcommittee on special education of the

student's school district of residence. The charter school may arrange

to have such services provided by such school district of residence or

by the charter school directly or by contract with another provider.

Where the charter school arranges to have the school district of

residence provide such special education programs or services, such

school district shall provide services in the same manner as it serves

students with disabilities in other public schools in the school

district, including the provision of supplementary and related services

on site to the same extent to which it has a policy or practice of

providing such services on the site of such other public schools.

* NB Effective until June 30, 2027

* (a) For purposes of sections seven hundred one, seven hundred

eleven, seven hundred fifty-one and nine hundred twelve of this chapter,

a charter school shall be deemed a nonpublic school in the school

district within which the charter school is located. Special education

programs and services shall be provided to students with a disability

attending a charter school in accordance with the individualized

education program recommended by the committee or subcommittee on

special education of the student's school district of residence. The

charter school may arrange to have such services provided by such school

district of residence or by the charter school directly or by contract

with another provider.

* NB Effective June 30, 2027

(b) For purposes of section thirty-six hundred thirty-five of this

chapter, a charter school shall be deemed a nonpublic school. The

charter and application therefor shall set forth the manner in which

students ineligible for transportation pursuant to section thirty-six

hundred thirty-five of this chapter shall be transported to and from

school. Any supplemental transportation provided by a charter school

shall comply with all transportation safety laws and regulations

applicable to other public schools. A school district may enter into a

contract for the provision of supplemental transportation services to a

charter school, and any such services shall be provided by the school

district at cost.

(c) A charter school may contract with the governing body of a public

college or university for the use of a school building and grounds, the

operation and maintenance thereof. Any such contract shall provide such

services or facilities at cost. A school district shall permit any

charter school granted approval to co-locate, to use such services and

facilities without cost.

(d) Private persons and organizations are encouraged to provide

funding and other assistance to the establishment or operation of

charter schools.

(e) The school district of residence of children attending a charter

school may, but is not required to, allow such children to participate

in athletic and extra-curricular activities of the district's schools.