New York Consolidated Laws, Education Law - EDN § 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) [Eff. until June 30, 2021, pursuant to L.2007, c. 378, § 27, subd. d.  See, also, par. (a) below.] 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.

4. Public and private assistance to charter schools.  (a) [Eff. June 30, 2021.  See, also, par. (a) above.] 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.

(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.


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