NY Educ L § 2853 (2021)
2021 New York Laws EDN - Education Title 2 - School District Organization Article 56 - Charter Schools 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, 2024   * (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, 2024  (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.