Photo: Success Academy Charter Schools / Facebook

The New York Court of Appeals is set to hear arguments next week on whether charter schools in New York City can demand public funding for universal prekindergarten without following a set of standards imposed by the city for such a program.

Attorneys for New York City and the State Education Department will argue against a decision from the Appellate Division, Third Department that allowed charters to bypass the city’s conditions on the funding last year. That was a reversal from a decision by Albany Supreme Court Justice Raymond Elliott, who previously upheld the rules in 2016.

Now, the Court of Appeals will decide whether State Education Commissioner MaryEllen Elia correctly interpreted a section of the state’s education law when she agreed the city could withhold pre-K funding from charters that do not follow a set of requirements created by the city’s education department.

Assistant Solicitor General Zainab Chaudhry will argue for Elia and Assistant Corporation Counsel Ingrid Gustafson will argue for the New York City Department of Education. Steven Holley, a partner at Sullivan & Cromwell in Manhattan, represents the plaintiffs in the case.

The New York City Law Department said in a statement to the New York Law Journal that a decision from the high court siding against Elia and the city could set a precedent for how much power a school district such as New York City has over charters when it comes to public grants.

“The petitioners in this case seek to uniquely exempt charter schools’ pre-K instruction from supervision by school districts,” the department said. “If they’re right, a charter school would be entitled to receive funding from a school district to educate the district’s pre-K students, but the district would be unable to set standards in order to ensure that the charter school complies with the requirements of the district’s grant and the UPK law.”

The lawsuit was brought in 2016 by Success Academy Charter Schools, the largest network of charters in New York City, and parents of children who attend charters in the city.

That was two years after state lawmakers approved legislation that eventually spurred the complaint. The law, included in the state budget passed in 2014, allocated more than $1.5 billion over five years to fund universal pre-K programs in the state. Most of that money was directed to New York City, where Mayor Bill de Blasio had made universal pre-K a top priority.

Success Academy applied to the city’s education department for funding in 2015 to provide pre-K at three of its charter schools starting that fall. According to the Appellate Division, the city told Success Academy the schools were “conditionally eligible” for the funding, which was contingent on the timely completion of contract negotiations and submission of contract documents.

Those contracts, sent to Success Academy by the city’s education department, laid out various requirements for the funding beyond what state law required. One stipulation limited the time for students to use digital devices to 15 minutes daily, for example. Another requirement capped the number of field trips during the school year.

Success Academy decided to begin its pre-K program that fall without following the guidelines of the contract. It argued that state law allowed exclusive control by charter schools to regulate their pre-K programs.

The charters sent invoices to the city’s education department after their pre-K programs launched seeking funds based on the number of students enrolled. The city rejected the invoice and told Success Academy it wasn’t going to give it any money until it agreed to the contract requirements.

That decision was appealed to the State Education Department, which sided with the city. The charters sued over the decision, which was brought before Elliott. He sided with the city as well.

The interpretation of certain laws by the judiciary can often come down to a few words, or even a sentence. In this case, it’s just one word: all.

The parties disagree on whether the law passed in 2014 grants total authority to charters to promulgate their own pre-K rules or whether the city can step in.

“Charter schools shall be eligible to participate in universal full-day pre-kindergarten programs under this section, provided that all such monitoring, programmatic review and operational requirements under this section shall be the responsibility of the charter entity and shall be consistent with the [law’s] requirements,” the law reads.

The key word there, the charters argued, is “all.” They wrote in their brief to the Court of Appeals that the Legislature intended the statute to mean the city is not allowed to impose conditions on funding for pre-K that could be perceived as onerous.

“Here, the Legislature’s decision to vest ‘all such monitoring, programmatic review and operational requirements’ for charter schools providing Pre-K classes in the hands of the relevant charter entity creates the ‘irrefutable inference’ that the Legislature did not intend to vest local school districts like the DOE with concurrent oversight responsibility,” the charters wrote.

The city’s law department rejected that argument on Thursday. It said that interpretation of the law ignored other sections of the statute and, if used that way, would give extraordinary power to charters to promulgate their own rules regardless of state law.

“Charters schools, like every other type of pre-K provider, are subject to the UPK law’s quality standards and to supervision by school districts (and by their charter authorizers). We will argue to the Court of Appeals that the Commissioner correctly upheld DOE’s use of the contract as consistent with the UPK law,” the department wrote.

Holley did not return a call inquiring about next week’s arguments, which are scheduled for Oct. 10 at the Court of Appeals in Albany. A decision will likely be made in November.

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