Charter schools, at least in New York, are a relatively new phenomenon. Therefore, it should come as no surprise that the case law, which, among other things, helps guide us in terms of the laws that govern these schools, and the procedures that must be followed before they can be called to task in a legal forum, is rather scant.

More specifically, the two (2) primary questions that arise are:

  1. Are charter schools entitled to receive a Notice of Claim as a condition precedent to suing them?; and,
  2. When you need to sue a charter school, what is the correct entity to sue?

Before addressing those issues, however, we must answer a threshold question:

What is a Charter School?

Charter schools' names are derived from the fact that the are authorized under a charter issued by the state, which sets forth the rules and guidelines for how the school will be organized and run. Like their public school cousins, charter schools do not charge tuition, and in many respects, are public schools, and benefit from tax dollars.  Like private schools, however, they are often independently operated by parents, teachers, community organizations. Importantly, and again, like private schools, since they are not full-fledged public schools, charter schools are also exempt from many regulations and laws that normally govern public schools.

The Notice of Claim Requirement for Public Schools & Municipalities

Education Law § 3813[2], which governs claims against New York's public schools, provides, in pertinent part, as follows:

§ 3813. Presentation of claims against the governing body of any school district or certain state supported schools

2. Notwithstanding anything to the contrary hereinbefore contained in this section, no action or special proceeding founded upon tort shall be prosecuted or maintained against any of the parties named in this section or against any teacher or member of the supervisory or administrative staff or employee where the alleged tort was committed by such teacher or member or employee acting in the discharge of his duties within the scope of his employment and/or under the direction of the board of education, trustee or trustees, or governing body of the school unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law. Every such action shall be commenced pursuant to the provisions of section fifty-i of the general municipal law [Emphasis supplied].

Is a Notice of Claim Required Against Charter Schools - Even Though They Aren't Full-Fledged Public Schools?

The short answer is: yes.

A Federal Court opinion from 2009 in summarized this principle as follows:

“[F]ulfillment of the statutory requirements for filing a notice of claim is a condition precedent to bringing an action against a school district or a board of education and, moreover, failure to present a claim within the statutory time limitation ... is a fatal defect.” Scaggs v. N.Y. State Dep’t of Educ., No. 06–Civ .–0799(JFB)(VVP), 2007 WL 1456221, at *19 (E.D.N.Y. May 16, 2007)

"Courts have held that charter schools are public schools for the purposes of the notice of claim requirement. See Scaggs, 2007 WL 1456221, at *19 n. 17."

Rodriguez v. International Leadership Charter School, 2009 WL 860622.

When Suing a Charter School, What is the Correct Entity to Sue?

Although a number of plaintiffs have taken a shotgun approach and sued pretty much everyone in sight, including the Department of Education and various city or state agencies, those defendants have been weeded out over the course of the cases because, in fact, they are typically have no liability for the actions of the charter school. Usually (if not always), the target defendant will be the charter school itself, and the reason for this is set forth in one of the enabling statutes pertaining to charter schools, Education Law 2853, which sets forth as follows:

§ 2853. Charter school organization; oversight; facilities

1. (g): Notwithstanding any provision of law to the contrary, no civil liability shall attach to any charter entity, the board of regents, or to any of their members or employees, individually or collectively, for any acts or omissions of the charter school. Neither the local school district, the charter entity nor the state shall be liable for the debts or financial obligations of a charter school or any person or corporate entity who operates a charter school.

The Takeaway

At the risk of stating the obvious, suing a charter school is not that simple a matter, and is very time-sensitive. If you know someone with a serious potential claim against a charter school, they would be well-advised to seek guidance from an attorney that is experienced and knowledgeable in this area of the law.

Jonathan Cooper
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Kevin Gomez, Esq. 05/01/2019 04:06 PM
Im a solo attorney currently drafting a civil PI/ Breack of K complaint involving injury to a child client at a charter school. Been looking for similar complaints in westlaw and online no success. If I may respectfully ask 1) name as defendants NYC DOE and NYS DOE. from what I reading, answer is no. Child is about 8 yrs old- sign certification. Suit is by parent o/b/o. From my Family court background we dont do sworn statemtns by children. Please share your thougts if you can. Appreciated Kevin Gomez, Esq.
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Patricia 09/18/2019 03:59 AM
Can I sue a charter school for emotional distress? They arbitrarily put my daughter in first grade. My daughter was admitted in second grade and passed the school’s entrance exam. My daughter has only been in the school 3 weeks. The school refused all suggestions of tutoring, extra help. Further the school personnel spoke to me very condescending and didn’t give me enough respect to meet with me first before deciding to place my daughter back in first grade. My daughter and family are very distraught. Can I suite this school?
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