Hyde Leadership Charter School – Brooklyn - Decision Summary

Hyde Leadership Charter School – Brooklyn(29-RM-126444; 364 NLRB No. 88) Brooklyn, NY, August 24, 2016.

This is a companion case to the full-Board decision inPennsylvania Virtual Charter School, 364 NLRB No. 87 (2016), above, and similarly involves the issue of whether the Board has jurisdiction over a charter school.A Board panel majority consisting of Members Hirozawa and McFerran applied the Supreme Court’s test inHawkins County, 402 U.S. 600 (1971), and found that the School is not exempt from the Board’s jurisdiction as a “political subdivision” of the State of New York under Section 2(2) of the Act.Nor did the majority find any compelling reason to discretionarily decline to assert jurisdiction over New York charter schools or all charter schools under Section 14(c)(1).

Applying the two-prongedHawkins Countytest, the majority found that the School is not a political subdivision under the first prong because the School was not “created directly by” any New York government entity, legislation, or public official, but instead by private individuals. Specifically, the majority found that it was the School’s executive director’s initiative and the School’s founding board’s preparatory work, including the promulgation of the School’s governing and operating documents, that “created” the School, not the approval of the charter and incorporation of the School by the Board of Regents, the governing body of the State’s Department of Education.Moreover, the majority found that the School was not created as an arm of government under the first prong because, while the state charter school law labels charter schools as political subdivisions, it is federal, not state law, that governs the determination of whether an entity created under state law is a political subdivision.Further, the majority noted that two decisions of New York’s highest court support their interpretation that charter schools are not political subdivisions. Finally, the majority noted that it was not persuaded by the dissent’s argument that the structure and operation of the School (e.g., that the School receives public funding or that the School is under the Board of Regents’ oversight) compels a finding that the School is an arm of government.Under the second prong, the majority found that the record contains no evidence that any public official was involved in the selection or removal of any members of the board of trustees.Rather, the School’s executive director identified the initial trustees in her charter school application, who became the governing board and incoming board members have since been appointed by the sitting board members.The majority found that the Board of Regents’ limited authority to remove a trustee for malfeasance or the New York City School Chancellor’s limited authority to appoint trustees, insufficient to constitute direct personal accountability to public officials underHawkins County.Further, the majority found no persuasive reason to discretionarily decline jurisdiction over all charter schools in New York, as the Union and amici requested, or over all charter schools, as their dissenting colleague would do, for the same reasons stated inPennsylvania Virtual Charter School.In addition, the majority rejected the argument that charter schools are analogous to the horse racing and dog racing industries, over which the Board has declined jurisdiction, reasoning that the racing industries are unique in character and involve extensive involvement of state regulatory bodies to preserve the integrity of those activities.

Dissenting, Member Miscimarra would find that the record establishes that the School is a political subdivision of the State of New York under both prongs of theHawkins Countytest. Under the first prong ofHawkins County, Member Miscimarra would find that the School was created directly by the Board of Regents when it approved the charter school application and incorporated the School.Further, Member Miscimarra would find that the School was created as an arm of government because the state characterizes charter schools as “political subdivisions” under its charter school law, the School receives most of its funds from the state and federal government, and the Board of Regents exercises continued oversight over the School.Member Miscimarra would also find that the School meets the second prong ofHawkins Countybecause the Board of Regents appointed the initial board of trustees and because, under certain circumstances, the Board of Regents may remove and the Chancellor may appoint trustees.For the same reasons he articulated in his dissent inPennsylvania Virtual Charter School, Member Miscimarra believes that the Board should discretionarily decline to exercise jurisdiction over charter schools under Section 14(c)(1).

Petitioner – Hyde Leadership Charter School-Brooklyn. Members Miscimarra, Hirozawa, and McFerran participated.