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Following one legal victory, city faces new battle on co-locations

Just days after the city received some good news in a lawsuit targeting its policy on charter school co-locations, another legal battle has arrived.

A group of parent activists filed a long-threatened lawsuit against the Department of Education today, charging that it is in violation of state law that requires school districts to collect rent and utility money from charters schools that occupy public school buildings.

The state education law cited in the lawsuit, Section 2853(4)(c), asserts that charters may rent public space and be provided with basic maintenance services, such as custodial work, utility payments and safety measures. But the law also states that the expenses from these services should be provided to charters “at cost.”

The exact amount of “at cost” is not clearly explained in the law – and state education officials did not respond to emails seeking clarification – but the city currently charges $1 in annual rent to about 80 charter schools that operate in public school buildings. It also waives fees for utilities and provides operational services.

The lawsuit estimates that these costs add up to $100 million per year and should be shouldered entirely by charter schools.

That figure is based on the city’s Independent Budget Office report from February, which concluded that charter schools housed in district buildings received $2,358 more per student than charter schools that pay for private space. The difference was primarily because of the waived facility and maintenance costs.

The report also adjusted per-pupil costs and found they were higher in co-located charter schools than in district schools.

At a press conference today to announce the suit, plaintiffs said the difference in spending was a clear demonstration of favoritism by the DOE.

“They’re pushing the charters. They’re pushing the co-locations. They’re pushing the five percent,” said Noah Gotbaum, a parent leader in District 3, referring to the proportion of students who attend charter schools in the city . “They’re not taking care of the kids that they should be.”

But city education officials and charter school advocates countered that charter schools, which rely primarily on public funding, should not be treated any differently than district schools.

“Public schools deserve space in public buildings,” NYC Charter School Center CEO James Merriman. “This city rightfully views all public school students through the same lens—whether they attend a public district or public charter school.”

The lawsuit also makes many of the same equity allegations that have not yet been decided in the UFT-NAACP lawsuit that sought to halt co-locations. A judge ruled last week that the groups’ case was not convincing enough to halt the city from moving forward on plans to open and expand charter schools inside school buildings this fall.

The lawsuit was filed by Arthur Schwartz, of Advocates for Justice, a public interest law firm. Other plaintiffs include Leonie Haimson’s Class Size Matters and Mona Davids’ NYC Parents Union and even a parent, Faye Hodge, whose child attends a charter school in private space. Hodge said she is part of the lawsuit because she did not believe it was fair that her school must pay for costs associated with occupying private space while co-located charter schools could use their full per-pupil allocation on operations expenses.

Twenty parents from five district schools are also named as plaintiffs in the suit.

The Department of Education declined to comment.

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