The state legislature’s eleventh-hour vote last month to expand New York’s charter schools will add 114 new charters to the 99 currently operating in New York City. But while the new law paves the way for new schools, and perhaps for millions in federal education funding, it doesn’t create new space for the new schools—or for the current charters, which are bursting at the seams as they add students, year by year.

When a new school opens, it generally begins with one or two grades – typically, kindergarten and first – and “grows up the grades” over time, adding a new kindergarten cohort every year, as older children progress. This means that schools that aim to encompass K-8 begin small and eventually expand to a much greater size.

City Department of Education (DOE) officials say that 62,500 students will attend charter schools this fall. But rough estimates by the New York City Charter School Center suggest that about 140,000 students may eventually attend charter schools in New York City, once all of the charters reach capacity. Besides the 99 now running and the 114 authorized by the new state law, another 37 are already slated to open in the city in the next two years.

About two-thirds of New York City’s charter schools are “co-located”—sharing space in public-school buildings. Comparatively scarce real estate and high rental and leasing costs necessitate building shares, according to the DOE’s Jack Zarin-Rosenfeld, who notes that public schools have long shared building facilities in neighborhoods like the Upper West Side and brownstone Brooklyn, and adds that only 6 percent of students in co-located public schools attend charters.

Elsewhere in New York, and across the United States, charters have their own buildings, separate from traditional public schools. “Not every charter experiences a positive relationship with the school district,” says Cynthia Proctor of SUNY’s Charter School Institute, a reference to Chancellor Joel Klein’s robust support for charters. In New York City, school leaders who apply to form new charters must submit plans for private space. But “the Chancellor has made it a priority to secure facilities for charter schools,” according to the DOE.

How is sharing faring?

Some advocates for both traditional public and charter schools (which are publicly funded) say that co-locating charters in public-school buildings creates a two-tier school system–and fuels a destructive competition between parents for scarce resources.

“Co-locations were the most contentious issue in amending the charter law,” said Mona Davids, head of the New York Charter Parents Association, whose daughter attends a charter middle school in the Bronx that’s sited in a public elementary school building. Battles over space and resources fracture already-fragile communities, she adds. “This is pitting parents of color against each other. We are all public school parents.” Davids says. “Co-location does not work. Charters should have their own buildings.”

DOE decides whether to co-locate a charter by evaluating the charter application and assessing need, building capacity and available resources. Some school organizers have access to private space within their target community, and no need for co-location. Others may design a proposal for one neighborhood and have to choose between a DOE co-location offer in another part of New York or finding private space on their own. Co-location recommendations by the DOE are approved by the Panel for Education Policy, at the end of the school-approval process, and cannot be appealed.

After PS 101 in Harlem, which long spanned kindergarten through 8th grade, earned an F on the city’s first round of progress reports, the DOE closed the elementary school, and began to phase out the middle-school grades.

At the same time, Harlem Success Academy III, one of the burgeoning charter chain headed by former City Councilperson Eva Moskowitz, opened in PS 101’s East 111th Street building.

Harlem Success Academy eventually intends to open 40 charter schools, according to Moskowitz; three new schools will welcome students this fall, one in Manhattan and two in the Bronx. All three new schools will be co-located in public school buildings.

Harlem Success Academy III, which plans to grow to 8th grade, will stay in the PS 101 building permanently, according to Rana Khan of DOE’s Charter Office. Like all of the co-located charters in public-school space, HSA does not pay rent, although some fees are charged for extended use.

A new zoned elementary school, the Mosaic Preparatory Academy, also shares the building. Parents there worry that their school is at risk, because HSA has requested a building-use hearing, slated for June 21.

Competing needs

This year, of the last 70 students enrolled at PS 101, nearly half (30) are designated to receive special-education services. The provision of those services in co-located buildings is a particularly keen concern at many sites around the city.

PS 38, the Roberto Clemente School on East 103d Street, is an A-graded public school that shares its building with the steadily-growing DREAM Charter school. Of PS 38’s 316 students, one in four receives special-education services—a significant rise since 2006-07, when one in seven students received comparable supports.

Among DREAM’s 150 students, 22 percent receive special education, in marked contrast to most charters, which do not serve many special needs kids. (The state’s new charter law mandates that all charters accept and retain special-ed and English-language-learner students in proportions that resemble schools in their districts, as DREAM does now. But it is not known how schools will implement this new requirement, or what will happen if they don’t.)

High-need students require space for services like occupational and physical therapy, as well as adaptive gym, academic supports and in some cases counseling.

When they share space with charters, public schools often lose spaces dedicated to providing these state- and federally-mandated services. “DOE says they would never take away state-mandated services, like occupational therapy rooms, for a charter,” Davids said. “They have done that. District and charter parents experience the same problems getting mandated services.”

Co-location also often means these dedicated spaces are counted as instructional spaces, or classrooms in the building’s Instructional Footprint, developed by the DOE’s Office of Space Planners. That means the DOE’s official capacity estimates can overstate how much actual instructional space is available in a building with multiple schools and special-needs children.

“Disabled school kids are being given mandated related services—counseling, speech therapy, physical and occupational therapy—in busy hallways, closets, auditoriums full of students and the like,” special-education activist and veteran DOE critic Dee Alpert told City Limits. “Imagine a child with a personal problem having a session with a counselor in a classroom with 33 other kids, a teacher and perhaps an aide nearby, all able to listen in. Speech therapy for a child with an auditory processing disorder in a noisy hallway.”

DOE planning official Debra Kurshan says that therapy spaces and instructional spaces are counted more accurately by planners when they “walk the school” to assess the potential for a co-location. She also notes that instruction and therapy should not take place in landings and hallways—despite the common practice of conducting pull-out, small group work in nooks and crannies of crowded schools. “If it’s happening, it’s not supposed to,” said Kurshan, of the impromptu teaching spaces.

DOE officials say that principals control the use of the space they are allotted and can convert libraries to classrooms, or rework art, science and music “cluster” rooms into conventional academic classrooms, to meet the rising demands of growing schools in shared buildings.

Temporary, or not

Some charters share buildings for predetermined amounts of time; the public school buildings function as “incubators ” for a year or two, until the charter gains its footing and can move to a permanent location. But sometimes those incubation plans change midstream, as they have at the PAVE Academy Charter school in Red Hook, Brooklyn, co-sited with PS 15, the Patrick F. Daly neighborhood elementary school.

Enrollment at PS 15 is growing, according to the DOE, with a rising proportion of special-education students. Yet the school, which reluctantly accepted a two-year incubation agreement when the PAVE charter opened, may be forced to continue sharing its small building with the growing charter: The DOE has pressed to extend PAVE’s residency, which was supposed to end this year, to 2013.

The Mayor-controlled Panel for Education Policy voted in favor of the extension, but a lawsuit advanced by the UFT and the NAACP overturned the vote. (The DOE has appealed the decision.)

PS 15 parents say that the school’s therapy resources are being compromised by the charter’s presence, while PAVE and DOE officials maintain that the school building has ample space for both schools.

The chancellor decides

The state’s new charter law also mandates that schools that share buildings empanel building committees—that include parents as well as school staff—to sort out the use of public space, like school cafeterias, auditoriums and gyms and important academic resources, like science labs. The new law does not address the potential mutual need for therapy spaces in shared school buildings. Building committees in co-located schools already exist, although they are limited to building principals. The new law’s mandate does not confer actual decision-making power to the building committees, raising concerns that their impact may be more cosmetic than substantive.

When there’s a conflict, the network leader who manages the traditional public school and DOE’s Khan, on behalf of the charter, mediate to reach agreement—or call in the cavalry: the Senior Supervisor in the Division of School support.

Advocates hope that the beefed-up committees’ higher public profile may influence DOE siting and co-location decisions. But the final right and responsibility rests with the chancellor, according to DOE spokesperson Zarin-Rosenfeld.

“The law stipulates who has to be on the building council. Ultimately, the chancellor retains the authority to make co-location decisions,” Zarin-Rosenfeld says. “The actual effect of the law on co-location decisions remains to be seen.”