Turf wars and growing pains: how New York Education Law can ease the co-location battle.

• Author: Zdanys, Joanna

Introduction I. New York City's Charter School Boom A. Race to the Top and the Obama Administration's Support for Charter School Growth B. Charter School Legislation and Race to the Top in New York State C. Allocating Space to Charter Schools in New York: How it Works II. The Challenges of Charter School Co-Location A. Allocating Space Fairly in Schools B. Broader Systemic Concerns C. Recent Disputes over Co-Location 1. P.S. 9 and Brooklyn East Collegiate Charter School 2. Success Charter Network and the Brandeis Educational Complex 3. Additional Litigation 4. Looking Ahead: Mayoral Candidates' Stances on Charter School Co-Location III. Analysis and Strategies for Easing the Co-Location Battle A. Refine Criteria for Site Selection B. More Accurate Footprint Data C. Increased Community Input D. Stronger Provisions for Cooperation Between Schools Conclusion INTRODUCTION

On a Wednesday night in the middle of January, a crowd gathers inside Brooklyn Technical High School in New York City. (1) Some hold signs, and others blow whistles. (2) A few words escalate into a shouting match. (3) Journalists snap photographs and capture sound bytes. (4) The crowd has gathered in protest because the Panel for Education Policy (PEP) is about to hold a meeting, during which it will vote on the possible co-location of a charter school with a public school. (5) "Co-location" is the practice of housing two or more schools in the same public school building. (6) As charter schools multiply in number throughout New York City, scenes similar to this one have become increasingly familiar to teachers, administrators, parents, charter school supporters, advocates of traditional public schools, and students of all ages. (7)

The storm over school co-location is a byproduct of the charter school movement, which has garnered both strong support and fierce opposition. Charter schools are publicly funded, tuition-free schools that are exempt from some of the rules and regulations that govern traditional public schools. (8) Private individuals, nonprofit organizations, and for-profit companies can create charter schools, (9) and in some instances, a traditional public school can be converted to a charter school. (10) Supporters laud charter schools for offering parents the option of choosing a public school other than their children's assigned district schools, (11) for providing high-quality education to children in traditionally underserved communities, (12) and for allowing educators to experiment with new approaches to curriculum. (13) Others argue that charter schools can "generate competitive effects that drive up the quality of both charter and traditional public schools." (14) The results of a 2013 Stanford CREDO study found that students in New York City charter schools on average learned significantly more in reading and mathematics than their counterparts in traditional public schools. (15) Opponents to charter schools, however, paint a much different picture. They argue that charter schools siphon off resources from traditional public schools (16) and do not necessarily produce better outcomes for students across the board. (17)

Charter schools have risen in prominence in New York City in recent years. There are currently 159 charter schools operating in the five boroughs. (18) Mayor Michael Bloomberg is a vocal supporter of the charter school movement and has promoted the growth of charter schools and the policy of co-locating charters with public schools. (19) As of 2010, 102 charter schools shared space with other schools in public school buildings. (20) Co-location is not a new or novel practice in New York City, nor is it confined to charter schools; the majority of the city's public schools inhabit the same building as another public school. (21) Co-located schools often share resources, such as cafeterias, gymnasiums, auditoriums, and schoolyards. (22)

Although the co-location of two or more traditional public schools in the same building has been fairly commonplace in New York City, the increasing frequency of the co-location of charter schools with public schools has become a matter of particular contention in New York. Most other cities in the United States do not co-locate their charter schools with public schools. (23) New York City schools, however, face challenges when seeking space that most other school systems need not contend with, including limited available physical space to develop, (24) the high cost of real estate, (25) and large student populations. (26) For these reasons, supporters of co-location argue that charter schools would not be able to open as readily without the option to co-locate with a public school. (27) Opponents of co-location argue that charter schools take away valuable resources within their buildings, such as access to specialized facilities, (28) and threaten to exacerbate overcrowding. (29) As charter schools have burgeoned in the five boroughs of New York City, opposition in the form of protests and even litigation over co-location has become more common.

This Note does not advocate for or against the expansion of charter schools as an educational option, nor does it intend to editorialize upon the quality of education that charters offer. Rather, it posits that current New York laws and regulations cannot adequately facilitate the difficult process of charter school co-location in a way that meets the needs and protects the interests of all parties involved. This Note argues that, in order both to stem the tide of litigation that is likely to increase as the number of charter schools in New York increases and to provide more equitable learning environments for students in both traditional public and charter school settings, New York's Education Law must be revised to contain more transparent and definitive criteria for building selection, the public hearing process must be altered, and more rigorous collaboration and communication should be required to take place between representatives from co-located schools.

Part I of this Note discusses the charter school landscape in New York City and the circumstances giving rise to the increased co-location of charter schools with public schools. It highlights the pro-charter provisions of the Obama Administration's Race to the Top program, New York State's two applications to Race to the Top, and the amendments to New York State charter school laws that were enacted in part to contribute to New York's success in receiving federal funding under that program. Part II describes the practical challenges that arise at each stage of the co-location process, from the point at which a particular school building is determined to be a candidate for co-location to the point where schools actually co-exist with one another. To highlight these challenges, this Part will discuss recent litigation that illustrates these challenges and demonstrates the tensions that persist between charter schools, public schools, and the communities in which they reside. Part III will raise potential solutions to the challenges that co-location brings about and will offer suggestions for how current laws and regulations should be re-drafted to address these problems.

1. NEW YORK CITY'S CHARTER SCHOOL BOOM

   1. Race to the Top and the Obama Administration's Support for Charter School Growth

      In 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA) to stimulate the economy in the wake of the financial crisis. (30) Among its provisions, the ARRA designates $4.35 billion to the Race to the Top Fund (RTTTF), a competitive grant program designed to encourage and reward states that "creat[e] the conditions for education innovation and reform." (31) In November of 2009, the U.S. Department of Education released the Executive Summary on Race to the Top, which enumerated the criteria through which states would be eligible to earn federal funding under the program. (32) Each criterion corresponds to a certain number of points out of a total of 485 points that a state may try to accumulate. (33) These criteria vary from "State Success Factors," which include "[d]emonstrating significant progress in raising achievement and closing gaps," to "Data Systems to Support Instruction," which includes "using data to improve instruction," to "Great Teachers and Leaders," which focuses on improving teacher and principal effectiveness. (34)

      The criteria for selection devote fifty-five points to "General Selection Criteria," which consist of three factors: (1) making education funding a priority; (2) ensuring successful conditions for high-performing charters and other innovative schools; (35) and (3) demonstrating other significant reform conditions. (36) Ensuring successful conditions for high-performing charters and other innovative schools accounts for forty out of the category's fifty-five possible points. (37) The forty points dedicated to charter schools comprise eight percent of the total points available under RTTTF. (38) Although this figure may appear insignificant in the scheme of the total points available, only two of the nineteen factors on the RTTTF scoring rubric are worth more points. (39) The extent to which a state accommodates and creates successful conditions for charter schools has the potential to push one state's total score far beyond that of other states deemed inhospitable to charter schools, especially if a state has difficulty picking up enough points in other areas to make up the difference. In short, states that encourage the development of charter schools could have a competitive advantage over states that do not.

      In the first phase of Race to the Top, only two states--Delaware and Tennessee--were awarded federal funding. (40) Fourteen other states, including New York, were named finalists but ultimately left empty-handed. (41) New York ranked fifteenth out of the forty-one states that submitted applications...