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Judge leaves last chance for co-location suit in state education department's court

A scene from a 2013 Panel for Educational Policy meeting where the city approved dozens of co-location plans later subject to legal dispute.
A scene from a 2013 Panel for Educational Policy meeting where the city approved dozens of co-location plans later subject to legal dispute.
Patrick Wall

Families planning to attend dozens of new or expanding charter and district schools will have to wait a little longer before knowing for sure if they’ll have a place to go next year.

A Manhattan judge on Friday tossed out a lawsuit challenging co-location plans that paved the way for the schools to operate next fall. But they still face one more legal hurdle standing in the way being allowed to open or add grades: State Education Commissioner John King.

The court dismissal narrows the chances for critics of the co-location plans to get them halted. Last year, a group of elected officials and parent groups took legal action after the city’s Panel for Educational Policy approved more than 40 co-locations in the previous administration’s waning months. They argued that outgoing city officials were so rushed to approve the plans that they flouted an approval process meant to allow for community feedback.

State Supreme Court Justice Eileen Rakower did not tackle those claims in her ruling. Instead, she said the state education commissioner is the appropriate person to make decisions about co-location complaints.

“I am disappointed by today’s dismissal, but I am encouraged that the merits of our case were not brought into question,” said New York City Public Advocate Letitia James, who was among the elected officials signed onto the lawsuit.

Precedent might dim any optimism there might be that the case could still win. The co-locations ever repealed by a commissioner were either upheld after officials tweaked its plan, or allowed to open in different space with a new plan.

City lawyers and charter school supporters responded to the decisions more definitively.

“Once again, another judge affirms the right of charters to be in public space,” said Success Academy CEO Eva Moskowitz, whose schools were among those named on the lawsuit.

After Mayor Bill de Blasio took office in January, political allies on the lawsuit, including James and City Council Speaker Melissa Mark-Viverito, agreed to wait until he decided what to do about the plans. But his decision to allow most through angered them, pitting de Blasio in a new legal dispute over the co-locations.

“We are pleased with this ruling, and as we argued in court, we continue to believe that the Administration’s decisions in this matter were perfectly reasonable and lawful,” Georgia Pestana, of the New York City Law Department, said in an emailed statement.

Now, both sides will have to wait for a ruling from King, who as commissioner has legal authority to settle disputes over space-sharing in New York City schools. A spokesman for King said the appeal was still under review, but did not indicate when a decision would be made.

Some politically-connected charter schools were taken off the lawsuit, while the city agreed to pay for three Success schools to open next year in private space.

But several schools listed on the lawsuit are still moving ahead with plans to open or add grades next year, some of which will do so in a little more than three months. Laura Barbieri, a lawyer representing the education group on the suit, said she hoped for a timely decision so that families can know if they’ll be affected.

“The realities of the state’s time table are pressing,” Barbieri said. “Obviously, school’s almost finished and I’m sure the commissioner is aware of that as well.”

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