Photo: rSnapshotPhotos/

The New York Court of Appeals said in a decision Tuesday that the New York City Department of Education cannot place conditions on state funding for prekindergarten programs at charter schools, which the city attempted to do in 2015.

The court affirmed a decision from the Appellate Division, which ruled that an interpretation of the 2014 state law expanding universal pre-K gives charter entities—rather than local school districts—almost exclusive oversight of those programs at charter schools.

“The text of [the law] vests exclusive oversight authority in the charter entity, and thereby acts to divest the school district of any existing authority to set curricular or programmatic requirements for approved, state-funded charter school prekindergarten programs,” Associate Judge Michael Garcia wrote in the court’s opinion, on which all but two judges concurred.

The decision will allow Success Academy Charter Schools, the largest network of charters in New York City and a plaintiff in the lawsuit, to receive state funding to implement universal pre-K programs without following a set of regulations the city education department tried to impose in 2015.

The New York City Law Department said in a statement that the decision does not completely eliminate the city’s oversight of the quality of education at charter schools, and that attorneys there will review the decision to determine how to exercise the department’s authority.

“We believe that all publicly funded pre-K programs serving New York City kids should meet the same high standards. In resolving the tension between conflicting statutes, the Court of Appeals significantly limits, but does not eliminate the Department’s legal authority to ensure that charter schools’ programs meet the educational standards set by law,” the Law Department said. “The Department will review the decision to determine how it will exercise its lawful authority to make sure that pre-K programs operated by charters fulfill their obligations to provide a high-quality education to the children entrusted to their care.”

Success Academy, and a handful of charter school parents, were represented before the Court of Appeals by Steven Holley, a partner at Sullivan & Cromwell. Holley was not immediately available to comment on the decision on Tuesday.

Eva Moskowitz, founder and CEO of Success Academy, criticized New York City Mayor Bill de Blasio in a statement following the decision on Tuesday.

“De Blasio’s illegal attempt to micromanage our pre-K program reflects his fundamental antipathy to the charter school concept,” Moskowitz said. “He wants to dictate how we run our program because he believes public education should be a government monopoly that he controls.”

The charter network brought the lawsuit in 2016 after the city education department refused to pay for a pre-K program at three of its schools that did not comply with regulations promulgated by the city the year before for such programs.

Those regulations sought to control the curriculum and operations of pre-K programs at charter schools. The contracts, for example, capped the number of field trips, the amount of screen time for students and more.

Success Academy had applied for funding from the city, which said the charter network was “conditionally eligible” to receive the money. Success Academy rejected the programming requirements from the city education department but started its pre-K program that fall anyway. When the charter network asked the city to pay for its pre-K program, the education department refused.

Success Academy asked State Education Commissioner MaryEllen Elia to review the city’s refusal to disburse the funding, but Elia sided against the charter network. A group of charter school parents, along with Success Academy, then sued both the city education department and Elia.

The city’s regulations were upheld by the State Supreme Court, but that decision was reversed by the Appellate Division, which decided the plain language of the 2014 law expanding universal pre-K allows charter schools to monitor and implement their own programming for those programs.

“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.

That section of the law, Garcia wrote, prohibits the city education department to impose its own standards on charter schools to receive funding. The city school district is allowed to reject a charter school’s application, but it can not approve an application for funding with strings attached, Garcia wrote.

“Rather than rejecting proposals, DOE has consistently accepted charter school applicants but has conditioned those awards on the execution of a contract that contains unlawful terms, as applied to charter schools,” Garcia wrote. “Charter schools are thus placed in a no-win situation: accept those contractual terms, or decline them without recourse to apply directly to SED.”

That’s what happened with Success Academy. The charter network was unable to apply for pre-K funding directly to the state Education Department because it had already been approved by the city education department.

Assistant Corporation Counsel Ingrid Gustafson, who represented the city education department, argued in court last month that a different part of the statute expanding universal pre-K allows local school districts to inspect those programs at charter schools. Gustafson and Assistant Solicitor General Zainab Chaudhry, who represented Elia, also argued that an older pre-K law from three decades ago allows a school district to impose “approved quality indicators” on funding as well.

Garcia wrote that just because a school district is able to inspect a charter school, that does not mean it’s allowed to monitor its day-to-day activities. He also wrote that the more recent universal pre-K law supersedes the older one.

“Nothing in the Universal Pre-K Law or Legacy Pre-K Law, however, gives school districts unilateral authority to impose curricular and programmatic requirements on charter schools — by contract or otherwise,” Garcia wrote.

Associate Judge Jenny Rivera wrote in a dissenting opinion that the majority considered the section of the 2014 pre-K law out of context of the statute’s framework, the older pre-K law, and the state law that established charter schools in the first place.

“The fundamental problem with the majority’s construction is that it does not read the statutory provisions in context and ignores that sections [of the 2014 law] are part of a larger framework of provider oversight by the SED and approved school districts,” Rivera wrote.

She argued that the majority’s interpretation of the law could also be read to strip oversight of charter schools from the state Education Department, which is the only state entity that can approve grants for pre-K programs in accordance with its own scoring system and quality assurance protocols.

Associate Judge Rowan Wilson joined Rivera on the dissent. Chief Judge Janet DiFiore and Associate Judges Leslie Stein, Eugene Fahey, and Paul Feinman concurred with Garcia on the majority opinion.


Court of Appeals Examines Conditions for Funding of Charter Schools Pre-K

Court of Appeals to Eye Whether NYC Can Impose Conditions on Pre-K Funding for Charters

High Court to Settle Dueling State Statutes of Limitations in Mortgage Lawsuit