Matter of A.N. and C.D. and Tapestry Charter School

IN THE MATTER

OF

THE COMPLAINTS OF A***** N***** AND C***** D***** CONCERNING THE TAPESTRY CHARTER SCHOOL

 

     DECISION

 

________________________________

 

Education Law §2855(4) provides that any individual or group may bring a complaint to a charter school’s board of trustees alleging a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  If the complainant subsequently determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity which must investigate and respond.  If the complainant subsequently determines that the charter entity has not adequately addressed the complaint, the complainant may present that complaint to the Board of Regents, which shall investigate and respond, and issue appropriate remedial orders.  Section 3.16 of the Rules of the Board of Regents delegates to the Commissioner of Education the authority to receive, investigate, and respond to such complaints, and issue appropriate remedial orders pursuant to Education Law §2855(4).  This decision is issued pursuant to that authority.

A***** N***** and C***** D***** (“complainants”) jointly submitted two Education Law §2855(4) complaints to the Tapestry Charter School board of trustees (“Tapestry Board”) on behalf of their child who attends Tapestry Charter School (“Tapestry” or “the school”).  Upon receiving a response to each, complainants submitted those complaints to the charter school’s charter entity, the Board of Trustees of the State University of New York (“SUNY”), and thereafter to the Board of Regents.  Both complaints have been consolidated for decision.

First, complainants allege that Tapestry[1] did not have sufficient instructional days for elementary students in the 2013-2014 school year and that it did not schedule sufficient instructional days for elementary students in the 2014-2015 school year.  They assert that Tapestry’s charter requires that it provide the same amount of instructional time as other public schools, as well as 176 “student attendance days.”  With respect to the 2013-2014 school year, complainants assert that Tapestry provided only 166 days of instruction; with respect to the 2014-2015 school year, complainants assert that Tapestry scheduled only 168 days of instruction.  According to complainants, this results in Tapestry providing less than the five hours of instruction per day required for elementary students.

In response to the complaint presented to Tapestry’s Board, the chairman of Tapestry’s Board advised complainants that the school’s principals and curriculum coordinators reviewed the number of minutes of instruction in each grade level and made necessary adjustments to ensure that the minutes of instruction for each grade level would meet or exceed the requirements established by SUNY, its charter entity.  In addition, he indicated that as a result of changes, an updated 2014-2015 calendar was provided to Tapestry families and posted on Tapestry’s website.

Upon its review of the complaint, SUNY determined that Tapestry was, at a minimum, required to provide the same amount of instructional time as district schools and found that the 2013-2014 Tapestry school calendar was 8.5 hours short of such minimum required instructional time.   As a result, SUNY issued a remedial order to Tapestry to provide an additional 8.5 instructional hours to make up for the shortage.  SUNY further determined that sufficient instructional time will be provided to elementary students in the 2014-2015 school year.

Education Law §2851(2)(n) requires that a charter school’s school calendar and school day schedule provide at least as much instruction time during a school year as required of other public schools.  Pursuant to Education Law §3604(7), school districts must be in session for not less than 180 days and, pursuant to Education Law §3604(8), up to 4 superintendents’ conference days can count toward the required 180 days.  Commissioner’s regulation section 175.5(a)(2) requires that daily sessions for students in full-day kindergarten and grades one through six shall be a minimum of five hours including instructional and supervised study time and excluding lunch.  In addition, section 2.7(a) of the charter agreement between SUNY and the school provides:

In no event shall the School provide less instructional time during a school year than is required of other public schools with instructional time to be divided in generally equal amounts over no less than 176 days (emphasis supplied).    

While charter schools shall provide at least as much instructional time as public schools, they generally do not have to offer the same number of instructional days (see Education Law §2851[2][n]).  However, in this case, the terms of the Tapestry charter expressly mandate that such instructional time be provided over no less than 176 days.  Here, there is no dispute that in the 2013-2014 school year, Tapestry provided 166 days of instruction to elementary students.  Complainants have requested that I direct Tapestry to add additional days of instruction to the 2014-2015 academic calendar to make up for the deficit in 2013-2014.  However, while I acknowledge that Tapestry did not provide the required number of instructional days during the 2013-2014 school year, that school year has ended, SUNY ordered that the hours be made up in the 2014-2015 school year, and no further meaningful relief can be granted regarding the instruction provided during the 2013-2014 school year.[2]  Similarly, with respect to the 2014-2015 school year, which has concluded, the record indicates that Tapestry did not provide 176 days of instruction before the scheduled last day of school.  I find that Tapestry is in violation of its charter for both the 2013-2014 and 2014-2015 school years.  Accordingly, Tapestry is required to submit to the Charter School Office its calendar for the 2015-2016 school year showing that it will provide the required hours of instruction over no less than 176 days, in compliance with its charter.

It is imperative that Tapestry be mindful of its obligation to provide the required number of instructional hours and days and I admonish Tapestry regarding its failure to do so.  Any future failure to provide the required number of instructional hours and days will subject Tapestry to further remedial orders. 

Second, complainants allege that the charter school eliminated its K-4 foreign language classes in violation of the school’s charter and without the approval of its board of trustees and its charter entity.

In response to the complaint presented to Tapestry’s Board, the chairman of Tapestry’s Board advised complainants that the school’s administration determined that financial resources should be reallocated from providing elementary foreign language classes to providing additional support for students in literacy and math.  He indicated that prior to implementing the reallocation of resources, the school consulted with SUNY.

Upon its review of the complaint, SUNY indicated that Tapestry discussed the elimination of the elementary foreign language instruction with SUNY staff who determined that eliminating foreign language instruction for elementary grades did not violate the key design elements of the school’s most recent charter or the law.  However, upon further review, SUNY found that Tapestry did not report the modification in its annual report as required.  As a result, SUNY issued a remedial order to Tapestry to report the change in its next annual report, amend its publicly available prior report and post the amended version on its website.

Section 2.4 of the charter agreement between SUNY and the school provides:

The School Corporation shall implement and provide educational programs that are designed to permit and do permit the students to meet or exceed the performance standards adopted by the Regents and the goals, and measures of progress towards those goals, of the School as set forth in the Accountability Plan. Subject to the immediately foregoing requirements, the School Corporation shall have the right to make any modifications or amendments to the educational program as it deems necessary, including, but not limited to, the curriculum, pedagogical approach and staffing structure, and such modifications and amendments shall not require the School Corporation to obtain the permission of the Trustees or constitute a revision of the Charter, provided however that any such modifications shall be consistent with the Key Design Elements and applicable law, and the School Corporation reports such modifications and amendments on an annual basis as required by paragraph 6.1 of this Charter Agreement (emphasis supplied).

Under this provision, Tapestry has discretion to make reasonable changes to its curriculum subject to the school’s key design elements, which, in this case, do not include K-4 foreign language classes.  Accordingly, I find that eliminating the K-4 language classes did not require SUNY’s approval and thus did not violate the school’s charter.  Therefore, the complaint regarding the K-4 foreign language classes is dismissed.

Complainants raised additional issues for the first time in their complaints to SUNY and the Commissioner, including an allegation that Tapestry failed to implement, maintain and distribute a complaint policy.  Although I remind Tapestry of its obligation to comply with the provisions of its charter, this allegation is not properly before me because there is nothing in the record indicating that complainants first brought this complaint to the school’s board of trustees in accordance with Education Law §2855(4).  In addition, I do not have jurisdiction to address complainants’ assertions that Tapestry violated the Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York.  I therefore, lack jurisdiction to adjudicate such disputes in appeals to the Commissioner under Education Law §310 (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886), as well as in the context of a complaint brought under Education Law §2855(4).

 

THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that Tapestry shall provide the required hours of instruction over no less than 176 days in each remaining year of its current charter term; and

 

IT IS FURTHER ORDERED that Tapestry shall submit to the State Education Department’s Charter School Office by no later than September 30, 2015 a calendar for the 2015-2016 school year in accordance with this decision, its charter agreement and the provisions of Education Law §2851(2)(n); and

 

IT IS FURTHER ORDERED that Tapestry shall thereafter make any modification(s) to such calendar as may be deemed necessary by the Charter School Office to comply with this decision, its charter agreement and the provisions of Education Law §2851(2)(n).

 

IN WITNESS WHEREOF, I, MaryEllen Elia, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this    day of            , 2015.

 

Commissioner of Education

[1] The records pertaining to the school on file with the State Education Department indicate that Tapestry’s initial charter was issued in 2001 for a five-year term.  Its charter was renewed in 2006 and again in 2011 for a term up through and including April 24, 2016.

[2]  As noted above, SUNY issued a remedial order directing Tapestry to provide additional instructional time during the 2014-2015 school year to make up for the shortage in the 2013-2014 school year.  Although SUNY acknowledged that the charter agreement provides for 176 days of instruction, for purposes of its remedial order, which was issued in November 2014, it calculated the instructional time required to be provided in hours.