New York City Parents Union v. Board of Education of the City School District

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 poor and 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 charter schools within traditional public schools without requiring them to pay rent violates the Education Law and article XI of the New York Constitution, and results in an unequal allocation of funding between charter schools and public schools and inequitable treatment of public school students.

The argument that BOE’s failure to charge co-located charter schools for their use of public school building facilities violates Education Law § 2853 (4) (c) has been 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 approval to 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, 59 NY2d 946 , 949 [1983]).

Plaintiffs’ remaining statutory claims allege violations of Education Law §§ 2853 (3) (a-3) and 2590-h. However, plaintiffs did not exhaust their administrative remedies before seeking judicial review (see Education Law § 310 [7]), and they have not demonstrated the futility of pursuing those remedies or another exception to the exhaustion doctrine (Matter of R.B. v Department of Educ. 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 adequately allege “the deprivation of a sound basic education” and “causes attributable to the State” (New York Civ. Liberties Union v State of New York, 4 NY3d 175 , 178-179 [2005]). Plaintiffs allege that the education provided to traditional public 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 the educational opportunities offered by other districts or other schools (see

We have considered plaintiffs’ remaining arguments and find them unavailing.

Concur — Tom, J.P., Friedman, Saxe and Kapnick, JJ.