SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

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MICHAEL MULGREW, as President of the UNITED FEDERATION OF TEACHERS, Local 2, American Federation of Teachers, AFL-CIO, and THE NEW YORK STATE CONFERENCE OF NAACP, THE ALLIANCE FOR QUALITY EDUCATION, RUBEN DIAZ, JR., BILL PERKINS, ERIC ADAMS, TONY AVELLLA, ALAN MAISEL, ROBERT JACKSON, CHARLES BARRON, ERIK MARTIN DILAN, MARK : WEPRIN, LETITIA JAMES, RUBEN WILLS, STEPHEN LEVIN, HECTOR NAZARIO, ZAKIYAH ANSARI, JAMES ORR, JANICE LAMARCHE and BELINDA BROWN, Index No. 105855/11 Plaintiffs, lAS Part: -againstTHE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor of the City School District of the City of New York, Defendants.

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION TO REQUIRE DEFENDANTS TO COMPLY WITH THEIR CONTRACTUAL OBLIGATIONS AND UNDER THE EDUCATION LAW STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, New York 10038 (212) 806-5400 Carol L. Gerstl, Esq. Adam S. Ross, Esq. United Federation of Teachers 52 Broadway New York, New York 10004

Co-Counsel for Plaintiffs

TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT PLAINTIFFS HAVE MADE THE REQUISITE SHOWING UNDER CPLR § 6301 I. Plaintiffs Are Likely To Succeed On The Merits

ii 1 6 6 6 7

A.

Defendants Have Breached The School Closings I Settlement Agreement As Well As The Attendant Covenant Of Good Faith And Fair Dealing
1.

The DOE Breached The Settlement Agreement..

.lO

2. 3. B. C. II. III.

Defendants Breached The Covenant of Good Faith And Fair Dealing ........ 24 Plaintiffs Are Entitled To Specific Performance Of The Agreement.. ........ .27 28 35 .47 52 55

DOE Failed To Comply With SED's Oversight Framework The DOE Failed To Comply With The Education Law Concerning Significant Changes In School Utilization

Plaintiffs Will Be Immediately Irreparably Harmed The Balance Of The Equities Favors Plaintiffs

CONCLUSION

TABLE OF AUTHORITIES Page(s)

CASES

Appeal of Espinet, Appeal No. 16,212,2011 NY Educ. Dept. LEXIS 27 (March 31,2011) Bd. ofEduc. Of the Lawrence Union Free Sch. Dist. No. 15 v. McColgan, 18 Misc.3d 572 (Sup. Ct. Nassau Cty. 2007) Bean v. Bd. ofEduc. Of Union Free Sch. Dist. No. 17 Town of Oyster Bay, Nassau County, 71 Misc.2d 747 (Sup. Ct. Nassau Cty. 1972) Bingham v. Struve, 184 A.D.2d 85 (1st Dep't 1992) Campaign for Fiscal Equity, Inc. v. State, 100 N.Y.2d. 893 (2003) Cho v. 401-403 57th St. Realty Corp., 300 A.D.2d 174 (1st Dep't 2002) Connor v. Cuomo, 614 N.Y.S.2d 1011 (Sup. Ct. Kings Cty. 1994) Dalton v. Educational Testing Service, 87 N.Y.2d 384 (1995) Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434 (Del. 2005) Elrod v. Burns, 427 U.S. 347 (1976) Evans v. Famous Music Corp;, 1 N.Y.3d 452 (2004) Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584 (1999) Forman v. Guardian Life Ins. Co., 76 A.D.3d 886 (1st Dep't 2010) Gen. Elect. Capital Corp. v. N.Y.S. Div. of Tax AP, 2 N.Y.3d 249 (2004)

passim

39

37 7 46, 47, 48 27 .49

24, 25 25 51 16

10 24 30

ii

In re Lamberti, 73 A.D.3d 463 (1st Dep't 2010) IUOE, Local No. 463 v. City of Niagara Falls, 191 Misc.2d 375 (Sup. ct. Niagara Cty. 2002), affd sub nom, 298 A.D.2d 1010 (4th Dep't 2002) Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) Molina v. Garnes Mgmt. Serv., 58 N.Y.2d 523 (1983) Mulgrew v. Bd. ofEduc. of the City Sch. Dist. of the City of New York, 75 A.D.3d 412 (2010) Mulgrew v. Bd. of Educ. of the City Sch. Dist. of the City of N ew York, 902 N.Y.S.2d 882 (2010) affd 75 A.D.3d 412 (2010) Olmstead v. US, 277 U.S. 438 (1928) S. Amherst, Ltd. v. H.B. Singer, LLC, 13 A.D.3d 515 (2d Dep't 2004) Sokoloffv. Harriman Estates Development Corp., 96 N.Y.2d 409 (2001) St. Paul Fire and Marine Ins. Co. v. York Claims Serv., Inc., 308 A.D.2d 347 (1st Dep't 2003) Steglich v. Board of Educ., Index No. 104300/11, Sup. Ct. New York Cty. (June 2, 2011, Edmead, J.) Stop BHOD v. City of New York, 2009 N.Y. Slip Op. 50461(U), (Sup. Ct. Kings Cty., Mar. 13,2009) Tucker v. Toia, 54 A.D.2d 322 (4th Dep't 1976) Vermont Teddy Bear Co., Inc. v. 538 Madison Realty Co., 1 N.Y.3d 470 (2004)
STATUTES

27

47 51

30

7, 27 passim 1 6

27 6 .4,5,47

.49 7 16

CPLR § 6301 Cornrn. Reg. §100.2(p)(6)(iv)(a)(1)

6 .28

111

Comm. Reg. §100.2(p)(6)(iv)(b)(1) Comm. Reg. §1OO.2(p )(6)(iv)( c)(1) Comm. Reg. § 100.2(p)(6)(iv)(a)(2) Comm. Reg. § 100.2(p)(6)(iv)(b)(2) Comm. Reg. § 100.2(P)(6)(iv)(a)(2)(ii) Comm. Reg. § 100.2(p)( 6)(iv)(b )(2)(ii) Comm. Reg. § 100.2(P)(6)(iv)(c)(2)(ii) Comm. Reg. § 100.2(p )(1 O)(vi) Comm. Reg. § 100.2(p)(11)(iv)(a)-(c) Education Law, Article 52-A Education Law § 211-B(2)(a)-(b) Education Law § 310 Education Law § 2590-h Education Law § 2590-h(2-a) Education Law §2590-h(2-a)(a) Education Law § 2590-h(2-a)(d-1) Education Law § 2853 Education Law § 2853(3)(a-3)(2) Education Law § 2853(3)(a-3)(2)(C) Education Law § 2853(3)(a-3) Education Law § 2853(3)(a-5) Elementary and Secondary Education Act, 20 U.S.C. §6301 et seq. (2002)

28 28 29, 32 29 .29 .29 29 32 30 35 14 37 35 35, 36,45 35 46 6, 55 36 38, 39,40 46 37 .28, 29

IV

OTHER AUTHORITIES

The Proposed Co-Location of Teaching Firms of America Charter School with Existing Schools P.S. 308 (16K308) in Building K308, Public Comment Analysis published February 28, 2011 available at http://schools.nyc.gov/ AboutU s/leadershiplPEP /publicnotice/20 102011/MarI2011Proposals.htm New York City Charter § 394 Panel for Educational Policy, Proposals for Significant Change in School Utilization, available at http://schools.nyc.gov/ AboutUs/leadership/PEP/publicnotice/20 102011/Feb32011Proposals Significant Changes in School Utilization- April 2011 Vote, available at http://schools.nyc.gov/ AboutU s/leadership/PEP /publicnotice/20 102011/Apr282011Proposals.htm

41 8

37

44, 45

PRELIMINARY STATEMENT This action seeks injunctive relief to prevent the illegal closure of schools and improper co-location of favored charter schools in district facilities at the expense of traditional public schools' use of the same space in direct violation of law and contract. Plaintiffs' action here should be familiar for it is strikingly similar to the successful proceedings involving closing schools and co-locations between essentially the same parties determined last year by this Court and unanimously affirmed by the Appellate Division.
1

Defendants' actions then and now reveal

an assumption that government is above the law and cavalierly ignore Justice Brandeis' admonition that: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the ... teacher. For good or for ill, it teaches the whole people by its example .. .lfthe government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Olmstead v. US, 277 U.S. 438,485 (1928) (Brandeis, J dissenting). Defendants repeat proscribed conduct by again seeking to close those same schools (15 of the 19 that were the subject of the prior litigation), and others without following the procedures delineated by law and complying with the substantive obligations amplified in an executed settlement agreement that was designed to require that Defendants act with mandated good faith. Defendants add to their manifestation of unbridled hubris - and evidence their true motives - by also seeking to j am into a number of school buildings other schools without

Mulgrew v. Bd. of Educ. of the City Sch. Dis!. of the City of New York, 902 N.Y.S.2d 882,890 (2010), affd 75 A.D.3d412, 413 (2010).

complying with law and in disregard of a decision by the State Commissioner of Education governing that practice? As this Court and the Appellate Division made clear in the prior proceedings, the DOE must comply fully with all of the preconditions to school closure else such proposed closure will be enjoined. Similarly, the State Commissioner of Education, relying upon this Court's holding in last year's school closing proceeding, has disallowed co-location under precisely the circumstances here at issue. Accordingly, Plaintiffs, a coalition of organizations dedicated to the advancement of educational opportunity, elected officials and public school parents, bring the instant action to again address the New York City Department of Education's ("DOE") arrogant effort to (a) short-circuit community participation in school governance; (b) evade its responsibilities to assist struggling schools before summarily seeking their closure; and (c) co-locate charter school programs without regard to known and proscribed adverse consequences, including squeezing out the students in "traditional" public schools from any fair allocation of school resources (e.g., cafeteria, library and gymnasium space). As set forth herein, Plaintiffs are likely to succeed on their claims for the requirements of contract, statute and regulation are plain and have been clearly violated by the DOE. Three simple illustrations make the point. First, while it has taken some time to document Defendants' continued misconduct, its recurrence is not surprising. Immediately after this Court annulled the closures last year, forcing

Appeal ofEspinet, Appeal No. 16,212,2011 NY Educ. Dept. LEXIS 27, *27-28 (March 31, 2011)

the DOE to give these schools and communities a second chance, the DOE-brazenly took steps to effectuate the co-locations that were premised upon the closure of the 19 schools and meant to replace 12 of them. Indeed, officials expressed their indifference to the Court's ruling and the communities' participation, stating that they would simply renew their attempt to close the same schools the following year which, as challenged here, they have now done. Yet, this Court and the Appellate Division made clear last year that, prior to closure of supposedly "failing" schools, the DOE was required to follow clearly delineated statutory processes designed to provide meaningful participation for school communities, which the Court would unhesitatingly enforce. Defendants' good faith participation in that process would have required heeding the public outcry identifying improvements achieved and disproportionate difficulties experienced by the targeted schools. Above all, it would have required the DOE to make good faith efforts to improve schools before ripping them from their communities. Accordingly, to ensure (i) that students, educators and communities who fought for these schools had a meaningful opportunity to improve them, (ii) that the schools be properly evaluated the following year and (iii) to resolve the proper application of this Court' ruling, Plaintiffs pressed for and Defendants agreed to a settlement agreement. That agreement mandated that, before any of last year's 19 schools was closed, the DOE would first make specific good faith efforts to assist the students and the schools to achieve or improve. The DOE signed that undertaking and then largely ignored it, despite protestation. The same is true of the DOE's obligations under the State Education Department's ("SED") oversight framework, pursuant to which the DOE was required to ensure that certain diagnostic assessments were performed and used to inform plans of action to improve these struggling schools. Such schools were to have an opportunity to improve for at least two or three

years under SED's regulations.

Instead, again, the DOE has sought to unilaterally close these

schools before they could even attempt to benefit from the required supports and without regard to the Commissioner's authority to permit or deny such closure, in part, based upon the

Commissioner's assessment of DOE's compliance (or lack thereof) with the State framework. Lastly, the DOE decided that it would further undermine traditional public schools in favor of charter and smaller schools by situating into some 17 existing public school buildings charters that would diminish the access of the often larger public school student bodies to lunchrooms, gyms and other common spaces. These and other improper practices were embodied in the DOE's Building Utilization Plans, which were virtually identical to the one found illegal by the Commissioner of Education ("Commissioner") in his March 2011 decision in Appeal of Espinet. Indeed, as we show below, the DOE has effectively acknowledged that nearly all of its proposed co-locations this year were similarly deficient and illegal. If the DOE is permitted to continue with such closures and co-locations in violation of contract and statute, the rights and opportunities lost by students, educators and community members will be irreparable. Once a school is starved of new enrollments, as the DOE has

already begun to do for the 22 schools (15 from last year and others) whose closure is here challenged, an order of this Court requiring the school be held open, though deprived of the ability to enroll new students, would be ineffectual. Moreover, students and families who expressed a desire to attend the schools sought to be closed are and would be required to divert to other schools that they desire less than a school the DOE has designated for closure. As the Court (Edmead, J.) aptly observed in its Decision on the petitioners' application for a temporary restraining order and preliminary injunction, dated May 12, 2011, in the related matter of Steglich v. Board of Educ., Index No. 104300/11 (involving one of the schools in the instant

matter), these types of actions are like the proverbial bell that cannot be "unrung." (A copy of the Decision is annexed to the accompanying affirmation of Charles G. Moerdler, dated June 2, 2011 ("Moerdler Aff."), as Exhibit 5.)

That analogy applies equally to the co-location portion of Plaintiffs' application. The DOE has known since at least March 31, 2011 that all of its proposed co-location Building Utilization Plans with language of the type found to be insufficient by the Commissioner in Appeal of Espinet were illegal, yet the DOE did not, of its own accord, then seek to re-start the proposed co-location process in a manner that complied with the law. That the DOE, after the commencement of this action, may attempt an end-run around the statutorily-required process is, again, in violation of the section's plain prescriptions. Such avoidance of carefully crafted

statutory and regulatory requirements disenfranchises stakeholders who, through Plaintiffs' coalition, now pursue the instant action to bring together in a comprehensive and coherent manner the DOE's many failures and abuses associated with this year's change in school utilization process. Defendants should not be permitted to avoid complying with clear contractual, statutory and regulatory obligations. Accordingly, Plaintiffs ask that the Court temporarily restrain and preliminarily enjoin Defendants from (i) taking steps to close or phase out any of the challenged schools unless and until the DOE has complied in good faith with its contractual obligations to first attempt to improve them, including enjoining the DOE from taking steps to deprive those schools of incoming students effecting a de facto phase-out; (ii) taking steps to close or phase out any of the challenged schools unless and until the DOE has complied in good faith with the requirements of State regulations under SED's coordinated Differentiated Accountability and SURRJPLA framework, specifically that DOE seek and obtain Commissioner approval before 5

closing a monitored school; and (iii) taking any steps to effectuate the 19 challenged co-locations unless and until the DOE demonstrates compliance with the Building Utilization Plan and amended Educational Impact Statement public processes provided for by Education Law § 2590hand §2853 as interpreted by the Commissioner in Appeal of Espinet.

STATEMENT OF FACTS Petitioners respectfully refer the Court to the Verified Complaint ("Ver. Comp."), annexed to the Moerdler Aff. at Exhibit 1 and the accompanying Affidavits of United Federation of Teachers ("UFT") Vice President for Academic High Schools, Leo Casey, sworn to on June 1, 2011 ("Casey Aff."); and UFT Special Representative, Jackie Bennett, sworn to on June 1,2011 ("Bennett Aff."), for a complete statement of alleged facts. To avoid unnecessary repetition, key facts are incorporated into the arguments below.

ARGUMENT PLAINTIFFS HAVE MADE THE REQUISITE SHOWING UNDER CPLR § 6301 CPLR § 6301 authorizes grant of a preliminary injunction upon a showing that Defendant "threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiffs rights respecting the subject of the action .... " N.Y. C.P.L.R. § 6301 (McKinney 1980). CPLR §6301 further authorizes a temporary restraining order pending a hearing for a preliminary injunction where such improper harm appears immediate. Id. These standards are straightforward and familiar. Plaintiffs must show: (i) a likelihood of success in the action; (ii) the prospect of irreparable injury in the absence of the injunction and; (iii) a balancing of the equities in favor of the moving party. st. Paul Fire and Marine Ins. Co. v. York Claims Serv., Inc., 308 AD.2d 347 (1st Dep't 2003); S. Amherst, Ltd. v. H.B. Singer, LLC, 13 A.D.3d 515, 516-17 (2d Dep't 2004). As is discussed below, all of these factors are present here. 6

I.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

New York courts have long held that likelihood of success on the merits is not equated

with a certainty of success: "It is enough if the moving party makes a prima facie showing of his right to relief; the actual proving of his case should be left to the full hearing on the merits .... " Tucker v. Toia, 54 A.D.2d 322, 326 (4th Dep't 1976). Accord Bingham v. Struve, 184 A.D.2d 85, 89 (1st Dep't 1992).

In this action, Plaintiffs seek declaratory and injunctive relief requiring the DOE to adhere to its contractual and statutory obligations. What was required of the DOE by the Settlement Agreement and by statute is straightforward. While the DOE can be counted on to

follow its practice of presenting excuses (and to challenge the good faith of the Plaintiff coalition), that now customary smokescreen will not conceal the fact that it again chose not to comply with its statutory and contractual obligations.

A.

Defendants Have Breached The School Closings I Settlement Agreement As Well As The Attendant Covenant of Good Faith and Fair Dealing

Justice Joan B. Lobis of this Court, just a year ago, held that the DOE failed to comply with Education Law requirements and, on March 26, 2010, invalidated the 2010 PEP votes to close 19 schools. Mulgrew v. Bd. ofEduc. of the City Sch. Dist. of the City of New York, 902 N.Y.S.2d 882,890 (Sup. Ct. N.Y. Cty, 2010) (the "School Closings I" matter). Despite a fullcourt press of attempted intimidation (in editorials and other fora), the Court held that it could not overlook the DOE's "significant violations of the Education Law." Mulgrew, 902 N.Y.S.2d at 890. The Appellate Division, First Department, unanimously affirmed in Mulgrew v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 75 A.D.3d 412,413 (2010).

The Courts' admonitions, however, appeared to have made little impact on the DOE, with the DOE continuing on as if the 19 closures had not been annulled by the Court and the school communities had not been cheated of their statutory right to meaningful participation in school governance (a participatory role that was the legislative sine qua non for continuation of "Mayoral control" of the school system). (Ver. Compo ~31.) Indeed, DOE officials expressed disdain for the Court's ruling, stating they would simply renew their attempt to close the same schools the following year. (Ver. Compo ~ 31.) Specifically, immediately after this Court annulled the closures (and before and after the First Department affirmed), the DOE arrogantly took steps to effectuate co-locations that were premised upon the closure of the 19 schools and meant to replace 12 of them. The School Closing I parties challenged the DOE's actions. (Ver. Compo ~ 31.) The petitioners maintained that the affirmed judgment forbade the DOE from summarily closing the schools without good faith compliance with the statutory closing process and that, (i) as the co-locations were part and parcel of the Educational Impact Statements ("EIS") found to be defective by the Court and (ii) were voted on as part of the same process annulled by the Court, they too were impermissible absent appropriate community review. On July 14,2010, after negotiation and as a formal motion was being prepared to clarify Justice Lobis' Decision, Order and Judgment (the "Order") in the School Closings I matter, the parties, acting through designated counsel, memorialized a joint approach to implementation of the Order (the "Agreement"). (Ver. Compo ~ 32.) Jesse 1. Levine accepted the terms of the Agreement on behalf of the Corporation Counsel of the City ofN ew York, pursuant to New York City Charter § 394; Alan M. Klinger accepted the terms of the Agreement on behalf of petitioners, many of which are also Plaintiffs in this matter. (A copy of the Agreement is

annexed to the Verified Complaint, itself an Exhibit to the accompanying Moerdler Aff., as Exhibit 1.) Under the Agreement, petitioners relinquished (at DOE's request) their challenge to some of the DOE's co-locations and, in exchange, the DOE committed to provide long-awaited and deserved, but withheld, supports to the targeted schools which often serve a disproportionate concentration of the most at-risk students - those who are over-age but under-credited, children with disabilities, English Language Learners, and students with socio-economic challenges. Specifically, the DOE agreed to create and implement a ten-part Education Plan during the 201011 school year for each of the 19 schools on the 2010 closure list. The Education Plan was to include certain components that were to be tailored to the needs of the individual schools and designed to provide each school with the opportunity to improve its performance. The necessary

purpose of the Agreement, like the School Closings I proceeding itself, was to require the DOE to adhere to its obligations to reevaluate the proposed closings, in good faith and after the schools have the benefit of the Education Plan as well as informed community involvement. This Court's analysis of the Education Law was in accord: [The DOE's] very argument [in the 2010 proceeding] would appear to trivialize the whole notion of community involvement in decisions regarding the closing or phasing out of schools. The decision of [the DOE] to alter their plans to close the Alfred E. Smith Career and Technical Education High School [in response to feedback from the community regarding the demand for an automotive program], however, underscores the importance of community input in the decision-making regarding school closure ... as [the DOE} re-examine]s] in goodfaith the various programs in the schools they are proposing to close, and obtain meaningful community involvement, as required by the Education Law, respondents may well change their decisions with respect to some of the 19 schools, as they did with respect to the Alfred E. Smith Vocational High School.

Mulgrew, 902 N.Y.S.2d at 889-90 (emphasis added). The Agreement is comprehensive and incorporates the material terms of a year-long commitment - currently still extant - to improve the 19 schools in ten clear categorical ways. See Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584,589 (1999) ("to create a binding contract there must be a manifestation of mutual assent sufficiently definite to assure that the parties are in agreement with respect to all material terms"). The DOE took advantage of its bargained for benefit under the agreement by continuing with the permitted colocations, yet it characteristically ignored its concomitant obligation to work towards improving the schools at issue. (Ver. Compo ~33.) Therefore, by accepting the benefits of the contract and moving forward with the uncontested co-locations, the DOE ratified the negotiated and settled approach to the affirmed judgment without further litigation. Now, the parties to that Agreement, and the students and communities in the 19 schools, are entitled to enforce the agreement and receive the benefit that had been bargained for on their behalf.

1.

The DOE Breached The Settlement Agreement

Having been tasked in many instances to educate disproportionate concentrations of highneeds students without attendant increases in support and resources, the 19 schools had understandably been struggling, although some, though under-supported, nonetheless made improvements that were over-looked by the DOE. (See Bennett Aff. ~15.) It takes little expertise to recognize that when students have complex needs they struggle academically and that the need for additional support is even greater when students with such needs are concentrated in single schools. Defendants, intentionally or thoughtlessly, have seeded the schools proposed for closing with such significant percentages of these students (e.g., some

10

25% of the total student population) without providing additional supports and resources. Then, to no surprise, overall test scores and other indicia (e.g., graduation rates), are lowered. DOE seizes upon these seemingly poor results to proclaim student failure. Illustrative of the added burden carried by these schools, preliminary data discloses that at Columbus High School in the Bronx, approximately 26% of the students are receiving special education services (1.6 times that of other high schools in Columbus's District and almost double the Citywide high school average) and a staggering 12% of all students have such extensive special education needs that they must be educated in self-contained classrooms (more than 3 times the District average and more than 4 times the Citywide high school average). (Bennett Aff. ~4). Columbus also has a significant population of overage/under-credited students (those students who are not on track to

graduate in the usual course). According to the DOE's Comprehensive Education Plan ("CEP"),3 28% of Columbus's population is overage (1.8 times the District average and more than 2 times the Citywide average). (Bennett Aff. ~ll). Finally, the DOE places many "over-

the-counter" students at Columbus. These students typically have great needs and are often placed after the school year has commenced, causing special challenges for the schools in terms of programming. (Bennett Aff. ~12). This year, even as the DOE has sought to close Columbus,

it has placed 223 over-the-counter students at Columbus. (Bennett Aff. ~13). Nearly half of these students were transferred from other City schools, predominantly and nearly 50 of the students were new to the City, most of whom were English Language Learners. (Bennett Aff. ~13).

The DOE reports the number of overage students in two different documents, the Progress Report Card for the school and the CEP. The differences in these numbers are explained in the Bennett Aff. ~8.

11

This issue of high concentrations of students with intense needs is not unique to Columbus or isolated in the Bronx.4 At Paul Robeson High School in Brooklyn ("Robeson"), 21.4% of the population are students receiving special education services (1.5 times the Citywide high school average and 2 times the average of other high schools in Robeson's District). (Bennett Aff. ~5). In addition, according to the DOE's CEP, 36% of the students at Robeson are overage (2.7 times the Citywide high school average and 2.9 times the District average). (Bennett Aff. ~11). Lastly, during the 2010-11 school year, the DOE placed 120 over-thecounter students at Robeson. (Bennett Aff. ~14). In Queens, at Beach Channel High School ("Beach Channel"), 20% of the students have been identified as needing special education services (1.4 times the Citywide high school average and 1.6 times the average of other high schools in Beach Channel's District). (Bennett Aff. ~5). This is further compounded by the fact that 5.8% of the students at Beach Channel are in selfcontained classrooms (2 times the District average and 2.2 times the Citywide high school average). (Bennett Aff. ~6). According to the DOE's CEP, 28% of Beach Channel's students are overage (2 times District average and more than 2 times the Citywide high school average). (Bennett Aff. ~11). The DOE also placed 166 over-the-counter students at Beach Channel this school year. (Bennett Aff. ~14). According to the DOE's CEP, 28% of the students at the Academy of Environmental Science Secondary High School in Manhattan are overage (more than 2 times the Citywide high school average and more than 3 times the average for other high schools in AES' s District). (Bennett Aff. ~11).

A more complete analysis of this phenomenon is set forth in the Bennett Aff.

12

As explained in the following section, these schools had been entitled to receive extra help under the SED oversight framework but that requirement was ignored, leading to their identification for closure in the first instance. Thus, the petitioners in School Closings I sought to require the DOE by agreement to provide similar (and more extensive) types of targeted additional support to each school to allow them the opportunity to improve. Lest that opportunity become meaningless, the Agreement necessarily intended that the DOE would, after a reasonable time in which the schools could take advantage of the added supports, re-examine the schools in good faith as to their continuation. The Settlement Agreement containing DOE's commitment to provide tailored plans of action in the 19 schools was specifically and a carefully negotiated, including: A. Deployment of ATRs: Teachers and other professionals (guidance counselors,

social workers, psychologists) within the Absent Teacher Reserve ("ATR") were to be assigned to the schools to provide educational supports including, but not limited to, early intervention, small group instruction, push-in pull-out and/or team-teaching with a focus on English Language Learners ("ELLs") and students receiving special education services, as well as social and emotional support for students, including new immigrants, homeless students, and students re-entering the school system. ATRs are educators who, through no fault of their own, have been excessed from a permanent position (e.g., due to a school closure or fluctuations in enrollment) and have not yet found a new permanent position. Such teachers and other staff remain on the school system's payroll and may be assigned as substitutes, or as additional personnel within a particular title. Importantly, there is no additional cost to the DOE associated with the assignment of ATRs to a

13

specific school in the manner contemplated by the Settlement Agreement, and the agreement required that these individuals help provide the schools with crucial support. B. On-line Credit Recovery: In addition to existing credit recovery programs,

where the school's infrastructure supports it, each high school was to implement additional on-line credit recovery programs. These programs are designed to provide catch-up credit towards graduation for those students not currently on track to graduate in four years. C. Support for Socio-economic Challenges: DOE's "Children First Networks"

were to be responsible for developing a plan with the School Leadership Team ("SLT") to identify a community based organization or organizations to support students and families with socio-economic challenges. D. School Leadership:
5

The DOE was to consult with the UFT (which was entrusted

to act in consultation with and on behalf of all other petitioners), regarding school leadership, including whether it would be necessary to change leadership in any of the schools. E. CEP Review: Superintendents were to review the existing Comprehensive

Education Plan ("CEP") of each school. Once approved, implementation was to be monitored by the DOE. CEPs are in-depth plans completed by the statutorily defined SLT setting forth an assessment of the school's instructional programs, proposals for modifications and goals and objectives for the school. CEPs incorporate plans for

5 The SLT is comprised of instructional and non-instructional personnel, as well as parents and community members. The SLT plays a significant role in school-based decision making and shaping educational policies.

14

indentified interventions and, in that respect, serve the same function as the applicable action plans do for schools designated under the Differentiated Accountability portion of the SED oversight framework, discussed in detail infra at 27. See N.Y. Educ. Law § 211-B(2)(a)-(b).

F.

Curriculum Audit: A curriculum audit is a diagnostic tool utilized as part of the

SED Accountability frame work discussed infra at 28, and is designed to assess each school's educational program. Under the Accountability portion of the framework, SED contracts with an outside consultant to perform the audits. Pursuant to the Agreement, as it is under the Accountability program, the results of the Audit should be used to inform identification of tailored supports for the school's specific needs. G. Professional Development: Specialists from the DOE Children First Networks

with expertise in instructional support for English Language Learners and special education students were to provide targeted professional development and curriculum development for the school staff on strategies that have proven effective for such challenged students. It was agreed that such development would be tailored to each school's needs. H. Instructional Support Alignment: DOE Children First Networks were to work

with the principals and existing school teams (including, but not limited to, department teams, grade level teams and content teams) to develop instructional support plans aligned with the CEP. I. Teacher Center: Principals and schools were to assess the school's resources

and space to determine the possibility of establishing a Teacher Center. The UFT 15

Teacher Center is a collaboration of the UFT, SED, DOE and participating schools and districts, school support organizations and metropolitan area universities and cultural institutions. It is a comprehensive professional development program that promotes teacher excellence and academic achievement for all students and operates throughout the five boroughs, with 190 school-based sites and numerous outreach locations. J. Joint Oversight Committee: As soon as practicable, the DOE and the UFT (in

consultation with and on behalf of the other Petitioners) were to establish a Joint Oversight Committee ("JOC") to oversee and support implementation of the Education Plan. The JOC was vested with the authority to hear concerns regarding implementation of the Education Plan and make recommendations as to solutions. (See Ver. Compo ~~ 69A-J, Ex. A, at 2-3.) The role of courts in interpreting the language of a contract "is to ascertain the intention of the parties at the time they entered into the contract." Evans
V.

Famous Music Corp., 1 N.YJd

452,458 (2004). When the writing clearly, completely and unambiguously evidences the parties' intent by the plain meaning of its terms, the Court need only enforce the contract as it is written and there is no need to look further. Id.; see also Vermont Teddy Bear Co" Inc.
V.

538

Madison Realty Co., 1 N.Y.3d 470,475 (2004) ("In the absence of any ambiguity, we look solely to the language used by the parties to discern the contract's meaning."). Upon looking at the Agreement, the intent of the parties cannot be mistaken. "The parties have [] agreed that the following Education Plan will be implemented in the Schools for the 2010-11 school year." (Ver. Compo Ex. A, at 2.) The DOE, however, failed to do so.

16

Rather, the DOE incorporated each of the ten-points in title only, formalistically completing a trivial fraction of its obligations under the Agreement. As a threshold matter, in its dealings with the UPT members of the JOC regarding the requirements of the Agreement, the DOE breached the agreement from the start by failing to prepare meaningful Education Plans, that would have required first assessing the specific needs of each school and then designing the Plans to address those needs. (Ver. Compo ~71.) The need for such assessment should have come as no surprise to the DOE for it is the foundation of the SED Accountability/SURR frameworks as well, discussed in detail infra at 27-28. Moreover,

the UPT members of the JOC specifically raised the need to base the Education Plans on a needs assessment at the very first meeting of the Committee. (Ver. Compo ~73.) Ignoring those demands, the DOE (much as it did in School Closings I) prepared "an" Education Plan that checks all the proverbial boxes, but offered no analysis to produce a meaningful Education Plan. That is not what the Agreement prescribed or required. (Ver. Compo ~71.) Nor is it materially different from the pattern this Court and the Appellate Division ruled was improper in the prior proceeding.

Indeed, at the initial meeting on October 5, 2010, the UPT members of the JOC made several requests regarding the assessment of each school's need and the preparation of meaningful Education Plan, including that: • Because the 19 schools were, pursuant to the Agreement, supposed to receive

additional support beyond what the DOE had been providing, the UPT asked that the DOE suspend its informal policy of assigning excessed teachers - the ATRs - to any school but their former school to help reduce class size and provide added instructional

17

support. The DOE's refusal resulted in a preposterous swapping of-teachers whereby 19 schools excessed needed teachers who then became ATRs. In turn, these ATRs were assigned by the DOE, with no net cost to the district, to other schools while at the same time the DOE assigned ATRs, without regard for needed license areas or quantities, to the 19 schools. Accordingly, a school with a career or technical program that was forced to excess a teacher licensed to provide that program would be assigned an ATR from another school without the requisite licensure and be forced to close the program. Meanwhile, the needed teacher was assigned by the DOE to another school (Ver. Compo , 73A);

Analysis be done to determine which additional ATRs could be assigned to these

schools to address specific needs - even if excessed teachers were permitted to remain at the school- for the schools would have benefited from additional resources (permitting more individualized attention for at-risk students in a time of rising class sizes) (Ver. Compo , 73B);

The DOE replace ATRs that had already been assigned but who had either not

reported to the school, retired or found another permanent position (Ver. Compo , 73C);

The DOE facilitate the opening of teacher centers at the schools that had

expressed interest in having a teacher center, pursuant to the Settlement Agreement (Ver. Compo , 73D); and • 73E). The DOE provide a timeline for the required curriculum audits (Ver. Compo ,

18

The DOE failed to take action with regard to virtually all of the requests.

The DOE's characteristic perfunctory approach to its obligations was evident from the start. The JOC met but three times, twice in October, just two months prior to the DOE's announcement it was seeking to close the majority of the 19 schools. (Ver. Compo ~72.) Thus, having barely begun its feigned attempt to comply with the Agreement, the DOE had already frustrated its intended purpose. The JOC met again in February 2011, to discuss the implementation of the Education Plans. (Ver. Compo ~72.) However, even that meeting was an exercise in form not substance; for, earlier that same month, the PEP had met and already voted to approve closure of these same schools, rendering essentially futile any efforts pursuant to the (deficient) Education Plans.

Despite the DOE's cavalier disregard of its obligations, the UFT members of the JOC maintained their efforts to improve upon the Education Plans. At the October 19,2011 meeting, the DOE first provided its Education Plans for the UFT members of the JOC to review. The UFT raised several key concerns regarding the deficiency of the Plans. Despite the UFT's requests at the prior meeting, the Plans did not evidence that any analysis of the needs of each school had been considered. (Ver. Compo ~75.) The Plans were general and appeared to reflect merely what would exist in the school in the normal course, not any new or additional initiatives or programs, as the Agreement required. For example, although the Plans listed ATRs for each school, the DOE did not indicate how those configurations of ATRs were chosen or how the chosen ATRs were going to be used by the school. (Ver. Compo ~75.) The UFT again requested that the Plans be improved and revised to align with each school's needs. The DOE nonetheless failed to do so following the meeting. Less than two months later, the DOE formally announced it was seeking closure of 15 of the 19 schools for which it had just prepared (albeit flawed) 19

Education Plans. (Ver. Compo ~77.) Indeed, the DOE failed even to implement its own defective Plans as written, with not one of the required portions of the Education Plans being followed through in all 19 schools:

Deployment of ATRs: In no less than nine schools - nearly half of the covered schools - ATRs were not deployed as prescribed in the relevant Plans, let alone as was required by the Agreement in line with the schools' needs." (Ver. Compo ~ 82.) For example, the Education Plan for Christopher Columbus High School ("Columbus") called for two science ATRs, one stenography and typing ATR, one bilingual guidance counselor ATR, two social workers, two special education ATRs and one physical education ATR to be assigned, though without any guidance to the school on how such ATRs were to be used to improve achievement. In fact, only

five ATRs initially reported to the school. Quickly thereafter, two of the assigned ATRs were transferred out to other positions and one of them retired in the first part of the school year. None of these was replaced. Another ATRpassed away and was also not replaced. The remaining ATR teacher suffered from health issues and was unable to take up duties on a daily basis. (Ver. Compo ~83.) Though the ATR pool of teachers consists, according to DOE, of hundreds of unassigned teachers, DOE chose not to avail itself of any of them to effectuate replacement and instead, deprived Columbus (and in like manner others of the 19) of the benefit of a key requirement of the Agreement. On-line Credit Recovery: At least two high schools (ACE and Jamaica) did not even try to introduce an on-line recovery program, which would have helped the high-need demographic of overage and under-credited students. (Ver. Compo ~85.) Others, such as
These include ACE, Environmental Science, Beach Channel, Columbus, Jamaica, Kappa II, MABL, Thomas and Robeson. (Ver. Compl., ~ 82, FN6.)

20

Columbus, Robeson, and Beach Channel, only began implementing these vital programs as late as January, February, or March 2011 - a month or more after the DOE issued EISs seeking closure of the schools - and to this day, have not yet had a proper amount of time to function. (Ver. Compo ~85.) Columbus again provides the example: Columbus purchased APEX, an online credit recovery program, in December 2010 - the same month the DOE initiated closing procedures. Yet the school could not implement the program until the DOE provided funds three months later in March that allowed the school to utilize the library media center (a joint resource with all building schools) to operate the program. Despite having only limited access to the media center, and therefore APEX, Columbus students were finally able to begin taking advantage of the program approximately three months after the DOE initiated closing procedures. (Ver. Compo ~ 86.)

Support for Socio-Economic

Challenges:

Although the Education Plans for several of

the schools identified opportunities to seek new partners, the DOE failed to follow through on these opportunities. Moreover, the Education Plans for at least six schools disregarded this

requirement entirely by flatly reporting that no new partnerships would be identified or anticipated. These included Beach Channel, Columbus, Kappa II, New Day, Community Research and P.S. 332. (Ver. Compo ~ 87, n7.) In fact, the majority of covered schools have lost partnerships over the last year. (Ver. Compo ~ 88.) Comprehensive Education Plan Review: The DOE advised UFT members of the JOC

in their February 2011 meeting that CEP reviews had not yet been completed and were at that time ongoing. (Ver. Compo ~ 89.) There has been no indication from the DOE that the reviews have been completed even to this point. Given that reviews had not yet been completed with more than half the school year passed, meaningful adjustment and monitoring could not be done. 21

(Ver. Compo ~ 89.) Moreover, rather than conduct reviews in a timely manner that would permit the schools to benefit from them, the DOE committed its energies to seeking closure of the vast majority of these schools.

Curriculum Audit: At least six schools did not receive the benefit of a curriculum audit at all and other schools, including Beach Channel, Columbus, FDA III, Global Enterprise and Robeson had curriculum audits completed only after closure was a foregone conclusion. (Ver. Compo ~90.) Indeed, despites inquiries, the DOE informed the UFT members of the JOC in February (after the PEP had already voted to close the schools) that it had only then selected an outside vendor to begin performing the audits. (Ver. Compo ~ 90.) At that late date, where the DOE had sought and PEP had voted to approve the closure of the vast majority of these schools, the purpose of the Settlement Agreement was impermissibly foreclosed. Still, to date, the UFT has not received the results of any curriculum audit. As discussed infra at 34, similar Curriculum Audits were also required for many of these schools pursuant to the SED oversight framework and were likewise not completed. (Ver. Compo ~ 62.) Professional Development: Only one school- Thomas - received the benefit of any

specialist's expertise with English Language Learners and students receiving special education services. More in line with the majority, Robeson scheduled meetings with specialists, only to be cancelled three times, while at least three other schools even experienced a decline in existing educational supports for English Language Learners and special education students. The failure to provide this needed professional development (compounded by the DOE's failure to conduct any assessment of specific needs at each school in preparing the Education Plans) is particularly egregious as several of the 15 schools again targeted for closure this year

22

had historically high concentrations of exactly the type of high-need students this prong of the education plan was designed to help. For example, during the 2008-09 school year, a staggering 26% of Columbus enrollees were students receiving special education services, while the Citywide average in high schools was 13.7%. (Ver. Compo ~ 92; Bennett Aff. ~4.) Yet, Columbus did not receive any additional supports prior to the Agreement and was not even provided those supports set forth in the Agreement. Moreover, within that special education population, 12% of Columbus students were students receiving special education services in selfcontained classrooms (very high needs within the spectrum of special education), whereas the Citywide average for high schools was less than 3%. (Ver. Compo ~92; Bennett Aff. ~4.) Nonetheless, the DOE failed to carry out its contractual obligation to provide even the needed supports anticipated in the deficient Education Plans, preferring instead to rush to seek closure. Instructional Support Alignment: This joint venture went largely unrealized in at least nine schools evidencing the DOE's bad faith in substantively failing to meet an obligation so fundamentalCompo ~93.) Teacher Center: Though most of the schools went through the superficial exercise of assessing their resources to determine if a Teacher Center could be established, none of the schools that lacked a Teacher Center added one. (Ver. Compo ~ 94.) Contrary to the Agreement, Robeson actually lost its Teachers Center in June 2010, when a vacancy in the facilitator position was allowed to remain unfilled. (Ver. Compo ~94.) A Teacher Center would have provided teachers with the professional development, support and resources necessary to develop and use
7 These included ACE, Beach Channel, Columbus, Global Enterprise, Jamaica, Kappa II, MABL, Thomas and Robeson.

having instructional support be coordinated to work with a school's CEP.7 (Ver.

23

effective skills and strategies to help students meet the New York State Learning Standards and the goals of the City School District. The ability to collaborate with other professionals and be supported in developing new strategies is particularly crucial for teachers working with those students who have the highest needs, as more traditional approaches are generally not effective with those populations.

Joint Oversight Committee: While the JOC met on several occasions, with the UFT
members providing repeated requests and comments, the DOE merely went through the motions without making any genuine effort to mutually consider the substantive concerns raised by the UFT. In fact, as discussed supra at 17, at the initial meeting on October 5, 2010, the UFT members of the JOC made several requests regarding the assessment of each school's need and the preparation of meaningful Education Plans: The DOE failed to take action with regard to virtually any of the requests. (Ver. Compo ~74.) The UFT members of the JOC also asked that the Education Plans be improved and revised to align better with each school's needs, but the DOE refused. Unlike the DOE, the UFT, on behalf of all petitioners, fully performed under the contract by permitting the DOE to complete several co-locations without further contest and meaningfully participating in the JOC and working towards making the Education Plans a success. In contrast, the DOE accepted the benefits of its bargain, but did not comply with its obligations under the Agreement and is in breach of that Agreement.

2.

Defendants Breached The Covenant of Good Faith And Fair Dealing

The DOE has also breached the covenant of good faith and fair dealing implicit in the Agreement. See,~, Dalton
V.

Educational Testing Service, 87 N.Y.2d 384,389 (1995)

24

("Implicit in all contracts is a covenant of good faith and fair dealing in the-course of contract performance."); Forman v. Guardian Life Ins. Co., 76 A.D.3d 886,888 (1st Dep't 2010) ("It is axiomatic that all contracts imply a covenant of good faith and fair dealing in the course of performance."). This duty requires that "neither party shall do anything which will have the

effect of destroying or injuring the right of the other party to receive the fruits of the contract." Dalton, 87 N.Y.2d at 389 (quoting Kirke La Shelle Co. v. Armstrong Co., 263 N.Y. 79, 87 (1933)). Parties are liable for breaching the covenant "when their conduct frustrates the overarching purpose of the contract by taking advantage of their position to control implementation of the agreement's terms." Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005) (applying New York law). The Court of Appeals in Dalton acknowledged that each promisor is required to act in good faith not only in complying with the express obligations set forth in the contract, but also with regard to "any promises which a reasonable person in the position of the promisee would be justified in understanding were included." 87 N.Y.2d at 389. Dalton involved the release of SAT scores for which Educational Testing Service ("ETS") questioned the validity. The parties had agreed to the terms of ETS' Registration Bulletin, which provided that if ETS questioned the validity of a test score it would inform the test-taker of the reason for questioning the validity and provide the test-taker with five options for correcting the problem. Id. at 387. Once the testtaker responded, ETS reserved the right to cancel the test score if it still found reason to question its validity. Id. at 390. One of the options afforded to test-takers was to provide additional information. The Court found that ETS violated the covenant of good faith and fair dealing by failing to consider any of the additional information provided by the test-taker, stating that

25

"[h]aving elected to offer this option, it was certainly reasonable to expect that ETS would, at the very least, consider any relevant material submitted in reaching its final decision." Id.

Likewise, here, it was reasonable for the parties to expect that the DOE would, at the very least, provide the schools at issue with the supports specified in the Agreement and allow the schools an opportunity to avail themselves of these supports before re-evaluating the schools for closure. Nonetheless, on December 17,2010 - a mere three months into the school year in which the contractual Education Plans were to be implemented and two months after the DOE first proposed draft Education Plans - the DOE posted notice that it sought to close 10 of the 19 School Closing I schools it was obligated to attempt to improve. (Ver. Compo ~40.) Just three days later, the DOE announced its intention to seek closure of yet another 5 of the 19 schools the DOE attempted to close in 2010, for a total of 15 (of the original 19) schools subject to the Agreement without having yet conferred a single meaningful benefit articulated in the Agreement. (Ver. Compo ~~ 40-41.) By February 3, 2011 - just some six months after signing the Agreement and only half way through the school year in which it was to be implemented the PEP met and voted to close all 15 of the 19 schools that were again being targeted for closure. The DOE frustrated the basic purpose of the Agreement by immediately commencing procedures to close the schools rather than focus on improving the schools in the ten articulated ways to which it agreed. In attempting to appear to have complied with its initial obligations under the Agreement, the DOE created Education Plans that neglected even to assess the specific needs of each school. (Ver. Compo ~ 75.) Then, upon creating the deficient Education Plans with little more than applicable headings to facially correlate with the Agreement's 10 points, the

DOE did not take meaningful steps to further the purpose of the Agreement, namely to

26

implement proactive and efficient ways to improve the schools (which should have occurred some time ago) and re-evaluate the schools in a fair and objective manner once the schools were so supported (as they should have been all along). Rather, the DOE abused its position as the operator of the New York City public schools, as predetermined by it, slated the schools for closure without even providing the appearance of good faith compliance with its contractual obligations.

3.

Plaintiffs Are Entitled To Specific Performance Of The Agreement

Ultimately, Plaintiffs are not only likely to be successful in their claim for breach of contract, they will also be entitled to specific performance as a result of such breach. First, the Plaintiffs will be able to demonstrate their own actual performance of the contract in allowing the DOE to proceed with certain co-locations uncontested. See In re Lamberti, 73 A.D.3d 463,

464 (1st Dep't 2010). Second, Plaintiffs have no adequate remedy at law and the subject matter of the Agreement is unique with no established market value. See Sokoloffv. Harriman Estates Development Corp., 96 N.Y.2d 409,415 (2001) ("Specific performance is an appropriate remedy for a breach of contract concerning goods that are unique in kind, quality or personal association where suitable substitutes are unobtainable or unreasonably difficult or inconvenient to procure." (internal quotations omitted) (emphasis added)); see also Cho v. 401-403 57th St. Realty Corp., 300 A.D.2d 174, 175 (1st Dep't 2002); Lamberti, 73 A.D.3d at 464. Third, the DOE will not suffer an inequitable burden as a result of its performance, but it will finally support the schools as it should have long ago and eventually come to fairly re-evaluate the schools, as required by Mulgrew, 75 A.D.3d at 413 and the Education Law. See Cho, 300 A.D.2d at 175 (holding that specific performance is appropriate where "money damages would

27

be inadequate" and "when performance will not impose a disproportionate or inequitable burden on the breaching party").

B.

DOE Failed to Comply With SED's Oversight Framework

Most of the schools slated for closure this year (including 15 of the 19 School Closing I schools) have also been identified for oversight and improvement by SED under State law and regulations - specifically, the Differentiated Accountability program and the Schools Under Registration Review ("SURR")/Persistently Low Achieving Schools ("PLA Schools")

framework. These regulatory schemes are designed much like the Settlement Agreement's Education Plans (which are modeled, in part, on the SED programs) to provide struggling schools with assistance in diagnosing areas of need, developing and implementing a plan of action to address those needs and the opportunity to use such extra supports to improve achievement. Also like the Agreement, DOE's attempt to cut off the provided opportunity to improve and obviate its own obligations to contribute to that improvement by summarily closing the school is contrary to the State's regulatory framework which requires that the DOE seek approval from the Commissioner before closing a school subject to his oversight. The DOE has not sought, let alone received Commissioner approval for the targeted closures. (Ver. Compo ,-r,-r 58-59).

In accordance with the Elementary and Secondary Education Act of 1965 ("ESEA"), schools that receive Title I funds and do not make adequate yearly progress (as defined by the No Child Left Behind Act) are designated to one of three progressive phases intended to support the school in improving its performance: Restructuring. (1) Improvement; (2) Corrective Action; or (3)

(Ver. Compo ,-r49.) Each phase requires some initial evaluative step immediately

upon the school's designation - school quality reviews ("SQR's") for Improvement phase 28

schools (Comm. Reg. §100.2(p)(6)(iv)(a)(1));

curriculum audits ("CA's") for Corrective Action

phase schools (Comm. Reg. §100.2(p )(6)(iv)(b)(1 )); and assessments of educational programs by a joint intervention team appointed by the Commissioner ("JIT Reports") for Restructuring phase schools (Comm. Reg. §100.2(p)(6)(iv)(c)(1)). These evaluations are intended to be used to

formulate customized school plans, which are to cover a two-year period per phase and are intended to address specific causes for the school's failure to progress. Comm. Reg. §§ 100.2(p)(6)(iv)(a)(2), 100.2(P)(6)(iv)(b)(2), and 100.2(p)(6)(iv)(c)(2). The DOE is then required

to approve such plans within three months of the school's designation and implement the plans no later than the beginning of the next school year. Comm. Reg. §§ 100.2(p)(6)(iv)(a)(2)(ii), 100.2(p)( 6)(iv)(b )(2)(ii), and 100.2(p )(6)(iv)( c)(2)(ii). As a component of the Differentiated Accountability program, the Federal government established a funding mechanism for PLA Schools. This funding was available under Title I of the ESEA for the lowest performing schools in the Improvement, Corrective Action and Restructuring phases of the Differentiated Accountability program in each state. See Elementary and Secondary Education Act, 20 U.S.C. §6301 et seq. (2002). Prior to the implementation of the PLA program, the SED had established the successful SURR program to identify low performing schools and target them for corrective action intended to improve school performance. In June 2010, the State of New York fused the federal framework for identifying

PLA schools within the Differentiated Accountability system with the pre-existing SURR program. (Ver. Compo ~49.) Under the new coordinated framework, most schools identified as PLA schools also participate in the SURR program ("SURRJPLA schools"). (Id. at ~50.) Although the framework contemplates progressively stringent requirements for assessment and improvement as the school moves through the phases, because the current

29

integrated program was only recently implemented many of the closing schools were initially designated at the end of the progression as Restructuring and SURRIPLA schools. (Ver. Compo ~64.) Yet, the period of struggle that generated that placement came without any of the extra oversight and supports built into the progressive framework. Thus, although they are designated Restructuring and SURRIPLA schools, this is really the first opportunity some of the schools have had to benefit from many aspects of SED's oversight. (Ver. Compo ~64.) That opportunity, however, is being cut off by DOE's actions in seeking closure rather than providing the supports required by law. Together, these State and federal programs require SED to monitor schools that are struggling pursuant to various measures. The Commissioner retains the power to remove oversight and has the ultimate authority to assess whether a school has either progressed enough for removal or has failed to improve despite additional supports. Accordingly, if the DOE Chancellor seeks to close a SURRIPLA school, he must first submit the proposed closure plan for the Commissioner's only be approved if: Chancellor has adopted the official resolutions or other approvals to close the school; A formal closure plan has been developed and approved in accordance with the requirements of the intervention prescribed by the Commissioner; and Parents, teachers, administrators, and community members have been provided an opportunity to participate in the development of the closure plan. approval. Comm. Reg. §§ 100.2(p)(11)(iv)(a)-(c). Further, the plan may

30

When City schools fall under such monitoring, the DOE is requiredto comply with State law and the Commissioner's regulations providing for SED oversight. See Gen. Elect. Capital

Corp. v. N.Y.S. Div. of Tax AP, 2 N.Y.3d 249,254 (2004) ("where an agency adopts a regulation that is consistent with its enabling legislation and is not so lacking in reason for its promulgation that it is essentially arbitrary, the rule has the force and effect oflaw") (internal citations and quotations omitted); Molina v. Games Mgmt. Serv., 58 N.Y.2d 523 (1983) ("The Legislature may establish administrative agencies to accomplish its purposes and such agencies may be given the power to adopt rules and regulations to advance the purposes for which they were created. The regulations so adopted, if reasonable, have the force and effect of law. "). The DOE has not only failed to seek the Commissioner's approval for any of the Differentiated Accountability or SURRIPLA schools slated for closure, but also has denied many of these schools a reasonable opportunity to improve, as mandated by State and Federal law and regulation. (Ver. Compo ~~ 57-58.) Rather, the DOE has treated the framework as a mere tool for confirming the DOE's pertinacious determination to close schools. Indeed, the DOE has for many of the schools neglected (as it did in connection with its contractual obligations as well) to complete even the initial diagnostic step required under the framework. (See generally, Ver. Compo ~~61-66.) The table below (Table A) provides a list of those schools sought to be closed in the current year which participate in Differentiated Accountability and those that are also SURRIPLA schools.

SCHOOL

YEAR(s) of SURRIPLA DESIGNATION

ACCOUNTABILITY STATUS

31

SCHOOL 1. 2. Academy of Environmental Science* Global Enterprise High School* New Day Academy* Performance Conservatory High School MS 571 Bronx Academy High School Pacific High School Frederick Douglass Academy III (middle school grades) * School for Community Research and Learning* Monroe Academy for Business and Law* Norman Thomas High School* IS 195 Roberto Clemente John F. Kennedy High School Christopher Columbus High School* PS 102 Joseph O. Loretan Metropolitan Corporate Academy* Beach Channel High School* Jamaica High School* Paul Robeson High School*

YEAR(s) of SURRIPLA DESIGNATION n/a nla nla nla nla 2011 2011 nla 2011 2010,2011 2010,2011 2011 2010,2011 2010,2011 nla 2010,2011 2010,2011 2010,2011 2010,2011

ACCOUNTABILITY STATUS Corrective Action (Year 1) Corrective Action (Year 1) Improvement (Year 1) Improvement (Year 1) Improvement (Year 1) Improvement (Year 1) Improvement (Year 1) Improvement (Year 2) Improvement (Year 2) Improvement (Year 2) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Advanced) Restructuring (Year 2)

3.
4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

discussed supra at 8. There are seven additional schools subject to the Settlement Agreement, three of which are on the DOE's closure list this year (and inexplicably in good standing with SED) - Academy of Collaborative Education, Kappa II and PS 332 - and four of which DOE has not sought to close in this round - Choir Academy of Harlem, Middle School for Academic and Social Excellence, W.H. Maxwell Career and Technical Education High School, and Business, Computer Applications & Entrepreneurship High School.

* These schools were also part of School Closings I and are thus subject to the terms of the Settlement Agreement

32

(Ver. Compo ~55, Table A.)

A key element of this framework, like the ten-part Education Plans required by the Settlement Agreement, is the opportunity to use SED-required improvement plans (like the Education Plans), to improve outcomes. Generally, schools under SED oversight are given at least two years to improve (see~, Comm. Reg. § 100.2(P)(6)(iv)(a)(2)) and at times accorded

three years (Comm. Reg. § 100.2(p)(10)(vi)). Consequently, for schools in Differentiated Accountability and SURRIPLA, as some 12 of those listed in Table A, supra, are, the DOE is required to submit to the Commissioner for approval plans for improvement of each school, as well as plans that could result in the closure of the schooL (Ver. Compo ~57.) The Commissioner retains the right to, in his discretion, approve or deny such plan. One consideration the Commissioner would evaluate in exercising such discretion is whether the DOE had complied with its obligations to take specific regulatory steps to improve the schools prior to seeking closure. Yet, the DOE has arrogantly failed to seek the Commissioner's approval of the closure of the schools listed in Table A, let alone received a single approvaL (Ver. Compo ~58.) As set forth in the Verified Complaint (~59), PlaintiffUFT wrote to the Commissioner inquiring as to the DOE's apparent failure to comply with the regulatory frame work in this manner. (A copy of the letter is annexed to the Verified Complaint as Exhibit B). The Commissioner's Office responded, by letter dated March 2,2011, confirming that SED had not

received any request from the DOE for approval of the intended closures and setting forth a list of interventions that were scheduled to be performed in the schools sought to be closed that were subject to SED oversight. The list includes schools that participate in Differentiated 33

Accountability and schools that participate in Differentiated Accountability and are SURRIPLA schools.

This failure to seek approval is substantive for it would allow the Commissioner to perform his statutory duty to evaluate the DOE's actions and inactions with regard to these schools and determine whether the schools had not been given a fair and proper opportunity to improve. Indeed, the DOE has deprived schools of the opportunity to receive support they are entitled to receive and a meaningful chance to improve by neglecting to complete even the initial diagnostic step based upon which the DOE is required to approve and implement action plans to improve the schools.

Here, seven of the 19 schools listed in Table A, supra, are either in Improvement (Year 1) or Corrective Action (Year 1) status in the current school year and, as such, were required to have a SQR or CA, followed by an approved School Improvement Plan or Corrective Action Plan, respectively, that was approved no later than three months from designation. SED

designated these schools in December 2010, yet the DOE has failed to complete even this initial step. (Ver. Compo ~ 62.) Several more of the schools listed in Table A were entitled to benefit from JIT Reports as they were designated Restructuring andlor SURRIPLA for the first time this school year. For example, Community Research and P.S. 102 Joseph O. Lorentan should have already received JIT reports, but have not. (Ver. Compo ~ 63.) Moreover, as noted supra at 30, the regulations explicitly prohibit the DOE from closing a SURRIPLA schools without the Commissioner's approval, as the Commissioner's approval

may be withheld because the DOE has failed to comply with its obligations to take specified 34

regulatory steps to improve schools before closing them. Inherent in the mandate for Commissioner approval at the end of the integrated Differentiated Accountability and SURRIPLA process is a mandate that the Commissioner ought first to approve the closure of the schools that are in the intermediate steps of Differentiated Accountability, lest the DOE be able to shirk its obligations under State regulations to provide oversight and support while simultaneously circumventing Commissioner review.

C.

The DOE Failed To Comply With The Education Law Concerning Significant Changes In School Utilization

In 2009, the Legislature amended State Education Law, Article 52-A, in order to ensure greater accountability, collaboration and transparency for school governance in New York City, particularly with regard to significant changes in school utilization. By statutory definition, the co-location of two or more schools in the same DOE facility, including traditional public schools and charter schools is a significant change in school utilization subject to the statutory public process. Educ. Law §2590-h(2-a)(a). These amendments mandated that the DOE follow a

structured public process, involving individualized substantive analysis, designed to inject parental and community input into the Chancellor's decision-making as to any proposed significant change in school utilization. Section 2590-h(2-a) of the Education Law mandates, whenever the DOE proposes to, among other significant changes in school utilization, co-locate two or more schools within a public school building, it is required to prepare an EIS analyzing the proposed significant change and provide parents and community members with the information necessary to allow for meaningful involvement. It was compliance with these provisions that was at issue in the School Closings I matter in which many of the current Plaintiffs participated. Although that proceeding dealt primarily

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with school closings, the requirements with which the DOE failed to comply were and are applicable to any significant change in school utilization, including co-locations. As held by this Court in School Closings I, Education Law §2590-h requires the Chancellor to provide a "detailed analysis" of the impact of any significant change in the form of an Educational Impact Statement ("EIS") and to engage in a public process that provides for "meaningful community involvement regarding the [C]hancellor's proposals." Mulgrew, 902 N.Y.S.2d at 890.

In keeping with the purpose of the EIS process generally, in May 2010, the Legislature further amended the Education Law to require DOE to create and publish a Building Utilization Plan, or BUP, whenever it proposed a charter school be co-located with a public school or located within a public school building. Section 2853(3)(a-3) mandates the appropriate steps and information the DOE was to take in preparing the BUP and mandated the BUPs inclusion as a part of the EIS.

As part of the EIS, the BUP is subject to the same requirements under §2590-h(2-a) before the PEP can vote on whether to approve the proposal to co-locate. The newly amended §2853(3)(a-3) mandates the following minimum information be included in each BUP: (A) The actual allocation and sharing of classroom and administrative space between the charter and non-charter schools; (B) A proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces ... which assures equitable access to such facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students; (C) Justification of the feasibility of the proposed allocations and schedules set forth in [the above requirements J and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building; 36

(D) Building safety and security; (E) Communication strategies to be used by the co-located schools; and (F) Collaborative decision-making strategies to be used by the colocated schools including the establishment of a shared space committee .... §2853(3)(a-3)(2) (emphasis added). As with the EISs themselves, compliance with these new requirements would not be discharged "by providing boiler plate information" of the type struck down in School Closings 1. See Mulgrew, 902 N.Y.S.2d at 882. Yet, that is exactly what the DOE has again tried to do this year in preparing its BUPs. Indeed, that principle from School Closings I applies so directly to the instant BUPs that the Commissioner recently rejected as legally insufficient BUP language virtually identical to that in at least 17 of the proposed co-locations set to begin next school year. See Appeal of Espinet, Appeal No. 16,212,2011 NY Educ. Dept. LEXIS 27, *27-28 (March 31, 2011). The Espinet matter challenged the DOE's proposed co-location of Brooklyn East Collegiate Charter School ("BECCS") with P.S. 9 Teunis G. Bergen ("PS 9") and M.S. 571 The Bergen Upper School ("MS 571") in public school building K009 ("K009"). The DOE proposed the co-location in December 2010 and the PEP obligingly voted to approve it and other proposals on February 3, 2011.8 Thereafter, parent petitioners commenced an appeal pursuant to newly enacted Education Law §2853(3)(a-5), allowing for an appeal to the Commissioner on co-

See Panel for Educational Policy, Proposals for Significant Change in School Utilization, available at http.z/schools.nyc.gov/ AboutU s/leadershipIPEP/publicnotice/20 10-20 11/Feb320 11Proposals.

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location issues." The petitioners claimed that the DOE failed to provide adequate justification for its proposed allocation of shared spaces within K009. Espinet, *22-23.

On March 31, 2011, the Commissioner issued his decision, finding that the K009 BUP "fail [ed] to provide a justification of ... how [its] proposed allocations and shared usage would result in an equitable and comparable use of the [K009] building as required by Education Law §2853(3)(a-3)(2)(C)." *24 (March 31,2011). The Commissioner found the K009 BUP deficient, pointing particularly to the BUP's inadequate table of "proposed" amounts oftime per week each co-located school would have access to shared spaces and the boiler plate statements made by the DOE in support of those allocations, such as: This proposed plan illustrates how the population size of each colocated school will be used to determine a proportional allotment of time in each shared space. Building Councils are free to deviate from the proportional allotment of time to accommodate the specific programmatic needs of all special populations or groups within each school as is feasible and equitable ... Id. at *24. Specifically, the Commissioner stated that the above language failed to provide the mandated "justification for how the proposed allocations result in equitable and comparable use as required by the statute." Id. (internal quotations omitted). Accordingly, the Commissioner held: Appeal of Espinet, Appeal No. 16,212,2011 NY Educ. Dept. LEXIS 27,

While the Commissioner has the authority under Education Law §31 0 to review official acts of school authorities brought on appeal, the Supreme Court has concurrent jurisdiction in such matters. See Bean v. Bd. of Educ. Of Union Free Sch. Dist. No. 17 Town of Oyster Bay, Nassau County, 71 Misc.2d 747,749 (Sup. Ct. Nassau Cty. 1972) (citing Galloway v. Saletan, 20 AD.2d 796 (2d Dep't 1964». Accordingly, the actions of the DOE in this case are appropriately brought before this Court for review.

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[T]he inclusion of a proposal for the collaborative use of shared spaces, as required by Education Law §2853(3)(a-3)(2)(B), does not obviate the need for the discussion of the justification of feasibility and equitable and comparable use required by Education Law §2853(3)(a-3)(2)(C). Indeed, it is just such information, which should be available to the public as part of an EIS, prior to any hearing, that affords meaning to the process set forth in Education Law §2853(3)(a-3) ... The BUP ... fails to address how the proposed allocation of shared spaces in the K009 building ensures equitable and comparable use for impacted students as required by Education Law §2853(3)(a3)(2)(C). This involves a substantive failure to analyze the impact of a significant changed in school utilization on the affected students and cannot be characterized as harmless error. Id. at *27-28 (citing Mulgrew, 75 A.D.3d at 414) (emphasis added).

Based upon this failure, the Commissioner nullified the PEP approval of the co-location and prohibited the DOE from going forward with any aspect of the co-location proposal unless and until the DOE complied with the requirements of the Education Law. Id. at *28. It is well-settled that the Commissioner's interpretation of the Education Law is entitled to deference by the courts:

In case of doubt, or ambiguity, .. .it is a well-known rule that the practical construction that has been given to a law by those charged with the duty of enforcing it, as well as those for whose benefit it was passed, takes on almost the force of judicial interpretation. Bd. ofEduc. Of the Lawrence Union Free Sch. Dist. No. 15 v. McColgan, 18 Misc.3d 572,575 (Sup. Ct. Nassau Cty. 2007) (citing Matter of Lezette v. Bd. ofEduc. Hudson City Sch. Dist., 35 N.Y.2d 272,281 (1974)). Thus, viewed in light of the holding ofEspinet, any BUP must, inter alia, (i) provide for an equitable and comparable use of the school building'S space, and (ii) provide justification as to how the proposed use satisfies the Education Law's requirements. As

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explained herein, virtually all of the co-locations proposed for the 2011-2012 school year requiring a BUP under §2853(3)(a-3) contain the same fatal flaws as the BUP at issue in Espinet.

Prior to the Commissioner's decision in Espinet on March 31,2011, the DOE had proposed several charter school co-locations. Seventeen co-locations (excluding the co-location

already invalidated in Espinet) were approved by the PEP during their February 1st, February 3rd, March 1st and March 23rd, 2011 votes (the "pre-Espinet co-locations"). (Ver. Compo ~103.)

Each of the 17 BUPs prepared by the DOE for these pre-Espinet proposed co-locations contains: (1) an analogously insufficient table indicating proposed times for shared spaces for each school; and, (2) the same generic language justifying the proposals set forth in the table that was found deficient in Espinet. (Copies of relevant excerpts from the BUPs for each of the 17 schools are annexed to the Moerdler Aff. as Exhibits 4(a)-4(q).) All of the 17 pre-Espinet BUPs prepared by the DOE included (word-for-word) the following paragraph under the heading "Justification of Feasibility and Equitability of Proposed Shared Space Plan": This proposed plan illustrates how the population size of each colocated school will be used to determine a proportional allotment of time in each shared space. Building Councils are free to deviate from the proportional allotment of time to accommodate the specific programmatic needs of all special populations or groups within each school as is feasible and equitable, provided that the Building Council comes to an agreement of the final Shared Space Plan collaboratively. If such accommodation results in an alteration to the proportional distribution of space, the Building Council shall explain the basis for such alteration ... In each of the 17 pre-Espinet BUPs, the above paragraph is followed by (i) the enrollment numbers for each co-located school during the first year covered by the BUP and (ii) a table of shared spaces and the DOE's proposed time allotments for each school. (Ver. Compo ~103; see 40

also Excerpted BUPs, Moerdler Aff., Exs. 4(a)-4(q).) The only justification offered by the DOE, as required of them by §2853(3)(a-3)(2)(C), is the above boilerplate language. This is the same language and structure that was struck down in Espinet as insufficient. See Espinet, at *24, 2829.

Moreover, the lack of any individualized consideration for each co-location is apparent from the multitude of incongruous shared space proposals submitted by the DOE for each preEspinet BUP, leaving them a far distance from the "equitable and comparable use of the school building's space" required by the statute. For example, in the DOE's proposed shared space plan for co-locating schools Explore Excel Charter School ("Explore") and P .S. 114 Ryder Elementary ("PS 114"), the time allotted to each school for shared spaces, such as the gym and playground, are clearly inequitable and disproportionate to the number of students in each school. (Ver. Compo ~105.) Explore has the gym for two hours and fifty minutes every day, while in comparison PS 114 is only allotted 40 minutes longer each day for almost three times the number of students (some 690 PS 114 students). (See K114 BUP excerpt, Moerdler Aff., Ex. 4(j).) Despite the vast difference in student enrollment, Explore receives an hour and forty-five minutes in the playground a day while the larger PS 114 receives 15 minutes less. rd. No justification, except for the above generic paragraph is given. K308's parents and teachers state that the building is already overcrowded, with small classrooms and small facilities like the cafeteria and gymnasium which would be further strained

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or compressed with any co-located school.

10

The facilities are so strained that P.S. 308 Clara

Cardwell ("PS 308") uses one of its regular classrooms as an overflow gym due to the gym's inability to hold PS 308's students. (See K308 BUP excerpt, Moerdler Aff. Ex. 4(h); see also Ver. Compo ~107.) To accommodate the current student enrollment, the school lunch schedule runs for 3 hours and 15 minutes and therefore starts at 10:15 AM. (See Ver. Compo ~107.) The addition of a new school, Teaching Firms of America Charter School ("Teaching Firms"), would exacerbate the problem, lead to children eating lunch at an unreasonably early time, and create an inequitable and unfeasible situation in K308 for the current and incoming students. Students are already being taught in the hallways, stairwells and closets of public school tandem building M1491M207. (Ver. Compo ~108.) The temporary co-location of Harlem Success Academy Charter School 1 ("HSAl") with the existing public schools, P.S. 149 Sojourner Truth ("PS 149") and P811M Mickey Mantle School, a District 75 School ("P811M"), would further strain the already overcrowded conditions. Mysteriously, the DOE has allocated four hours in the "large gym" every day for Harlem Success Academy Charter School while allocating four hours and fifty minutes in the "small gym" for "PS/MS 149," and failing to allot P811M any gym time at all, be it in the small or large gym. (See M149/M207 BUP excerpt, Moerdler Aff., Ex. 4(b ).) The shared space proposal fails to note the capacity of either the large or small gym and it is therefore difficult to ascertain whether this proposal is "equitable and comparable. "

10 See The Proposed Co-Location of Teaching Firms of America Charter School with Existing Schools P.S. 308 (16K308) in Building K308, Public Comment Analysis published February 28, 2011 available at http://schools.nyc.gov/AboutUs/leadershipIPEP/publicnotice/2010-2011/Mar12011Proposals.htm.

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Similarly, the DOE's proposed shared space schedule for co-locating Bronx Success Academy 1 and P.S. 30 Wilton in public school building X030 provides each school exactly the same amount of scheduled gym time despite P.S. 30 Wilton having double the number of students as Bronx Success Academy 1. ( See X030 BUP excerpt, Moerdler Aff., Ex. 4(e).) The library in public school building X475 ("X475") is closed and the librarian "excessed" out of the building but the DOE has inexplicably included the library in its shared space allocation table. (Ver. Compo ~110.) This reveals the DOE's failure to address the realities of these proposed co-locations and their impact on existing students. The DOE has also completely failed to provide a schedule for the auditorium, which has been a hotbed of contention, leading the co-located schools to have to bring in a facilitator to address the issue. (Ver. Compo ~110; see also X475 BUP excerpt, Moerdler Aff., Ex. 4(g).) The DOE's proposed shared space allocation for public school building K033 ("K033") has Brooklyn Success Academy Charter School ("Brooklyn Success") receiving a full half hour for breakfast in the cafeteria while the three other schools co-located in K033, Urban Assembly School for Urban Environment ("Urban Assembly"), Foundations Academy ("Foundations") and a District 75 School 75K368, P368K@I033K ("P368K"), have to share the cafeteria for a See K033 BUP

similar 35 minutes, despite, combined, having a significantly larger population.

excerpt, Moerdler Aff., Ex. 4(i). The DOE fails to provide any meaningful justification for this proposal. In the proposed co-location ofInvictus Preparatory Charter School ("Invictus"), with J.H.S. 218 James P. Sinnott ("JHS 218") and The School for Classics: An Academy of Thinkers, Writers, and Performers ("School for Classics"), in the public school building K218 ("K218"),

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the auditorium is scheduled to be used by School for Classics for an hour and a half every day, by Invictus for a half an hour every day and by JHS 218 only on the first Monday of every month. See K218 BUP excerpt, Moerdler Aff., Ex. 4(k). No justification is given for this clearly inequitable breakdown of time.

In several of the published pre-Espinet BUPs, the DOE failed to address certain shared
space allocations entirely, instead stating that the "Building Council will coordinate scheduling based on programmatic needs." (Ver. Compo ~113; BUP excerpts, Moerdler Aff., Exs. 4(a)4(q).) As the Commissioner stated in Espinet, although the DOE's "proposal for the allocation of shared spaces may require adjustment by officials of the co-located schools based on programming and need" that does not obviate §2853(3)(a-3)(2)'s mandates that the DOE provide an actual proposed schedule of shared spaces and supply, in its BUP, the justification for such a proposal. Espinet at *27. "[T]he inclusion of a proposal for the collaborative use of shared spaces ... does not obviate the need for the discussion of the justification of feasibility and equitable and comparable use required by Education Law." Id. at *27-28 (citing Mulgrew, 75 A.D.3d at 414). This is vital as once the BUPs are approved and the co-location goes forward, Building Councils are forced to make do with the situation at hand. The purpose of the BUP and the EIS process is to evaluate whether the proposed co-location should be implemented in the first instance, not merely to push off the obligation of dealing with what could be an untenable situation to the people on the ground. As shown above, the DOE's justifications for the proposed co-locations are insufficient and fail to show why the proposed co-locations provide an equitable and comparable use per §2853(3)(a-3). Additionally, several, if not all, of the BUPs do not provide for tenable, let alone equitable and comparable, use of shared space as mandated by law. Accordingly, under the 44

Espinet holding, each PEP vote approving each pre-Espinet co-location should be nullified and the DOE should be required to comply with the mandates of the Education Law before proceeding further.

In apparent recognition of this, the DOE amended or postponed an additional 13 charter

school co-locations proposed for the April 28th PEP vote (the "post-Espinet co-locations"). Yet, even its belated and improperly narrow attempts to comply with the Commissioner's decision with regard to the two schools whose BUPs were amended rather than postponed, failed.
12

11

The BUPs for two of the three post-Espinet charter school co-locations that the PEP approved of on April 28, 2011 were amended on April 12, 2011.13 (Ver. Compo ~ 115). Under §2590-h(2-a), two of the amended BUPs were published too late to provide the statutorily identified stakeholders a meaningful opportunity to review the information prior to the mandated joint public hearing. Per §2590-h(2-a)(d-1), if the Chancellor substantially revises an EIS (which

11 Originally, the DOE proposed 13 charter school co-locations for the PEP's approval in its April 28, 2011 vote. See Significant Changes in School Utilization- April 2011 Vote, available at http://schools.nyc.gov/AboutUs/leadership/PEP/publicnotice/2010-20111Apr282011Proposals.htm. Twelve of the thirteen co-locations' BUPs included exactly the same flaws found in Espinet. (Ver. Compo ~114 FN 14.) Since the Espinet decision was rendered, the DOE has withdrawn 10 of those proposals and amended two of the remaining three to better comply with the holding in Espinet. Nonetheless, the DOE has failed to comply with the requirements of statute in all but one potential instance (building K303), which from its Revised BUP, dated March 19,2011, contained a school specific and more in depth discussion as to justifications. That the DOE included an expanded discussion in even one school's BUP demonstrates that they were capable of at least approaching compliance with the statutory requirement. 12 In another apparent acknowledgement of the invalidity of the pre-Espinet co-locations, Plaintiffs understand the DOE may now be in the process of belatedly "amending" those BUPs. However, as the PEP has already voted on those co-locations (albeit improperly), there are no active EISIBUPs for the DOE to amend. Characterizing these new BUPs as "amendments" is simply an end-run around the larger and more comprehensive EIS process which must be commenced no later than six months in advance of the school year in which the co-location was to take place. See Educ. Law § 2590-h(2-a). Accordingly, any DOE "amendment" short cut (like much of its actions here challenged) would be improper and ineffectual. 13 See Significant Changes in School Utilization- April 2011 Vote, available at http://schools.nyc.gov/AboutUs/leadership/PEP/publicnotice/2010-20111 Apr2820 11Proposals.htm.

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by law includes the BUP), the Chancellor must hold another joint public hearing "no sooner than fifteen days" following the filing of the revised EIS. This was not done, despite the plain requirements of law and evidencing a disregard of the public process.

The DOE held the only joint public hearing for the M188 co-location on March 31, 2011, nearly two weeks prior to the BUP's amendment. (Ver. Compo ~ 116.) Contrary to the mandates of §2590-h(2-a)( d-l), the DOE completely failed to hold the required additional joint public hearing on the substantially revised BUP. (Ver. Compo ~ 116.) Similarly, the DOE amended the BUP for M123 on April 12, 2011, only one day before the sole joint public hearing was held. (Ver. Compo ~ 117). No other public hearing was held after the DOE substantially revised the BUP as required under §2590-h(2-a)(d-l). 117.) (Ver. Compo ~

Therefore, despite the DOE's attempt at compliance with the Espinet decision by amending just two of the proposed BUPs, it still failed to comply with the mandates of §2590h(2-a)(d-l). Plagued by the same lack of compliance in Appeal of Espinet and the same

disregard for the mandates of the Education Law as in School Closings I, the original 17 preEspinet BUPs represent "substantive failures" on the DOE's part to analyze the impact of their proposed co-locations and the two post-Espinet co-locations represent the DOE's continued failure to comply with the clear requirements of the Education law §2590-h(2-a)(d-l), setting

forth the revised EIS process. Accordingly, the PEP votes approving these 19 co-locations (the pre-Espinet and post-Espinet co-locations), should be nullified and the DOE should be prohibited from moving forward with any aspect of the proposed co-locations unless and until the DOE complies with the requirements of Education Law §2853(3)(a-3) and §2590-h(2-a)(d-l).

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II.

PLAINTIFFS WILL BE IMMEDIATELY IRREPARABLY HARMED

In the landmark Campaign for Fiscal Equity ("CFE") litigation, the Court of Appeals

affirmed this Court's finding that better inputs into a child's education create better outputs in proficiency and achievement. Campaign for Fiscal Equity, Inc. v. State, 100 N.Y.2d. 893,919

(2003) (" ... the trial court reasoned that the necessary 'causal link' between the present funding system and the poor performance of City schools could be established by a showing that increased funding can provide better teachers, facilities and instrumentalities of learning ... We agree that this showing, together with evidence that such improved inputs yield better student performance, constituted plaintiffs' prima facie case, which plaintiffs established"). It is those

inputs in the form of (i) adequate, un-crowded facilities which contain usable specialized spaces such as libraries and laboratory classrooms; and (ii) needed instrumentalities of learning, including proper leadership and support, that the DOE has here failed to provide in violation of law and contract. As the CFE Court recognized, education is cumulative (id., at 915), and children can begin to accumulate deficiencies at an early age that eventually contribute to lack of achievement. See id., at 915-16. Such deficiencies may, however, be ameliorated through

additional supports and efforts in the future, which is precisely what the Agreement was designed to ensure. Failure to do so would lead ineluctably to irreparable harm. Irreparable harm has been described as "that which cannot be repaired, restored, or adequately compensated in money, or where compensation cannot be safely measured." IUOE,

Local No. 463 v. City of Niagara Falls, 191 Misc.2d 375,380 (Sup. Ct. Niagara Cty. 2002), affd sub nom, 298 A.D.2d 1010 (4th Dep't 2002). Similarly, as recently held by Justice Edmead in Steglich, to deny interim injunctive relief in a co-location (which is also part of this action) would result in trying to repair the damage "after the bell has rung." Steglich v. Board ofEduc.,

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Index No. 104300/11, Moerdler Aff., Ex. 5. Here, the very future of some 22 schools proposed for closure and 17 school buildings with proposed co-locations (to contain some 52 schools), as well as their students and teachers hang in the balance. Should the DOE be permitted to improperly close the 22 schools it has sought to eliminate without making contractually and statutorily required efforts to improve them, there would be no meaningful way to restore those schools for the students who would have attended them. Nor will there be any way to compensate Plaintiffs, the students and their parents for the DOE's failure to take contractually required steps to support the schools' improvement by improving the "inputs" identified by the CFE court if the schools are summarily closed without benefit of those steps despite the DOE already having reaped the benefits of the very bargain it has violated.

Similarly, the harm done to the educational environment of students who do and who will attend schools that are the targets of improper charter school co-locations cannot later be repaired or compensated with money. The harm to a student's ability to learn in cramped, overcrowded, inappropriate facilities or to focus on school work when lunch is served at 10:30 a.m. cannot later be reversed. As the Court in CFE recognized, smaller, less overcrowded classrooms and the use of specialized rooms such as laboratory classrooms correlate positively with improved achievement. Id. at 912 ("We conclude that plaintiffs' evidence of the advantages of smaller

class sizes supports the inference sufficiently to show a meaningful correlation between the large classes in City schools and the outputs to which we soon tum."). Indeed, the CFE court held that Some facts that the trial court classified as purely "physical" facilities inputs are inseparable from overcrowding and excessive class size-- conditions whose measurable effect on students plaintiffs have shown. One symptom of an overcrowded school system is the encroachment of ordinary classroom activities into what would otherwise be specialized spaces: libraries, laboratories, auditoriums and the like. There was considerable 48

evidence of a shortage of such spaces. Particularly poignant .is the fact that 31 New York City high schools serving more than 16,000 students have no science laboratory whatsoever Id. at FN4. When the Court of Appeals wrote those words it was in context of identifying existing failures in the school system and determining whether those circumstances amounted to a failure to provide the State Constitution's guaranteed free sound basic education. The CFE Court concluded it did. Id. at 919. Here, the DOE is attempting to proactively create those substandard circumstances by its efforts to improperly co-locate schools in an inequitable way. The only justification for such action being that administrators at school level presumably would be able to work out such matters. (Ver. Compo ~113). As found by the Commissioner in Appeal of Espinet, that is no justification. Rather, it is the DOE disavowing responsibility for making an

untenable situation of its own creation work on the ground level. This tactic deprives the community of an informed opportunity to participate in the decision whether to co-locate and place that type of burden on administrators to make an untenable situation work. The DOE's BUPs fail to address whether the forced co-locations would require students to give up successful programming as a result of limited space or to learn in overcrowded classrooms without the benefit of specialized facilities such as laboratory or music rooms. Just harms cannot be compensated with money. It is precisely this type of detrimental overcrowding that, once experienced by a student, cannot be re-lived and the lost educational opportunities cannot be reclaimed. Nor can a community be compensated for its disenfranchisement from what is statutorily to be an informed and shared role in school governance at the decision-making levelto have input and information regarding why the DOE is determining to foist an unworkable colocation upon their school - not just an after-the- fact opportunity to complain about how the colocation is (or is not) working out.

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"Where, as here, a regulatory regime is implemented to ensure community involvement in government decision-making or to protect the public from potential harm, the government's failure to follow the law, in itself, constitutes irreparable harm to the community." Stop BHOD

v. City of New York, 2009 N.Y. Slip Op. 50461(U), at *13 (Sup. Ct. Kings Cty., Mar. 13,2009) See also, Connor v. Cuomo, 614 N.Y.S.2d 1011 (Sup. Ct. Kings Cty. 1994) (granting preliminary injunction and holding that petitioners showed irreparable harm in their ULURP claim where community was denied its timely participation in the public process). Defendants' failures (i) to again follow the state regulatory framework for either working to improve schools under SED supervision before summarily seeking their closure or (ii) to comply with the same types of substantive disclosure and community involvement requirements in connection with proposed co-locations that this Court already found to be deficient in School Closings I, perpetrates an immeasurable and irreparable injury upon the affected schools, students, educators and communities. The New York State Legislature adopted the significant change in school utilization process as an important balance against the powers of the Chancellor when it renewed "Mayoral control" in August 2009. Following the initial grant of "Mayoral control" in 2002, the Legislature had created an avenue for parental and community involvement by establishing Community Education Councils ("CECs"), which replaced the elected community school boards, composed of parents and students. As became apparent over the next several years, the CECs were virtually ignored by the Chancellor and the DOE. Expressed over and over again during the debates surrounding the renewal of "Mayoral control" was the need for and value of parental participation in the education of their children. (See Excerpted Transcript for the New York State Assembly Public Hearing on Governance of the New York City School District, dated

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March 13, 2009, at 10: 16-11 :15, annexed to the Moerdler Aff. as Exhibit 3;) The Legislature recognized that if it were to continue "Mayoral control," it needed to mandate the infusion of parental and community input into the functions of the Chancellor and the PEP by creating an open and transparent process. This was particularly true of one of the Chancellor's most powerful tools - the ability to close or otherwise materially alter the utilization of a schoolwhere the Legislature laid out a stronger and more meaningful role for parents and the community. The DOE's action again this year evidence a total disregard for that process and the substantive voice it was designed to give to parents and communities. A violation of this type of statutory right to participation is by definition irreparable. Cf. Elrod v. Bums, 427 U.S. 347, 373 (1976); Mitchell v. Cuomo, 748 F.2d 804,806 (2d Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.") (citing 11 C. WRIGHT& A. MILLER,FEDERAL PRACTICE ANDPROCEDURE 2948 at § 440 (1973)). Thus, by continuing to ignore the voices of parents and community members, as was done by Defendants in School Closings I, Defendants unbalance the process and irreparably disenfranchised the public. The absence of such meaningful participation is particularly egregious in the context of co-locations which have the potential to and do create public school campuses where traditional public school students are "second class citizens" as compared to charter school students. The DOE's failure to provide meaningful justifications showing why the chosen co-location and allocation of resources results in an "equitable and comparable" use of the space is, in part, because the proposed co-locations do not approach an equitable and comparable allocation between charter schools and traditional schools. As set forth supra at 40-44, the charter schools are given preferential treatment. The harm done to public school students who could gaze across

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the school hallway and see that charter school students have better maintained facilities, with smaller classes and expanded used of shared spaces cannot be measured, let alone compensated.

In the final analysis, irreparable harm cannot be gainsaid insofar as the most important element of this dispute is concerned-the students and their parents. Where the interests of

students, especially high-need students, are secondary to the DOE's ideological imperatives - to facilitate planned school closures to create avenues for charter schools - that plainly does not aid in their education or their future. Finally, where some students are given preference over others in access to libraries, gymnasiums, and even lunchrooms simply because the preferred students attend favored schools, that manifest bias cannot help but injure, both in the short and long term. And once these injuries are inflicted, they cannot be undone. For all these reasons, the harms at issue here are precisely of the sort injunctive relief was designed to protect against.

III.

THE BALANCE OF THE EQUITIES FAVORS PLAINTIFFS It cannot plausibly be disputed that Plaintiffs and the schools and communities on whose

behalf they have brought this action stand to incur substantial harm here, while Defendants face administrative inconvenience (primarily of their own making) if required to abstain from carrying through unlawful school closures and inequitable and flawed co-locations.

With regard to the proposed co-locations, it can be said with confidence that the DOE was on notice since the Commissioner rendered his determination in Appeal of Espinet (to which the DOE was party) in late March that the remainder of the DOE's proposed co-locations - voted on between February and April 28 - were fatally flawed and subject to unwinding by the Commissioner or this Court. The DOE could have taken steps to remedy those deficiencies by 52

issuing new BUPs and complying with the statutory process, but it only chose to attempt that in two instances (and managed to violate other portion of the Education Law in the process). Accordingly, the DOE should not now be heard to complain that a stay of co-location preparation would be disruptive, particularly when the disruption is not to DOE schools but to independent Charter schools who had no guarantee of being allotted space in a DOE facility and have independent means of securing alternate or temporary space, as they may see fit. (See Casey Aff. ~~ 9-11.) Indeed, charter schools often receive charters and even hold lotteries for admission before securing a facility in which they intent to operate. (Casey Aff. ~. 12.) While many charter schools seek space in DOE facilities, primarily because the space is provided by the DOE at essentially no cost to the charter, not all charter schools are granted such space and many are cited in private facilities. (Casey Aff. ~ 11.) Here, the charter schools at issue should be able to do the same. Indeed, some of the schools only found out in late April that they were to be granted space in a DOE school and the PEP is continuing to hold co-location votes through the month of June. (Casey Aff. ~ 11.) Thus, the impacted charter schools have the ability to seek space elsewhere. Even that may not be necessary as a determination on the co-location claim may be had long before the start of the following school year. Accordingly, the DOE should be enjoined from effectuating the challenged co-locations, including by permitting any alterations to be done at the school campuses that are for the direct purpose of the co-locating school which, absent the co-location would not be needed. Turning to the 22 schools the DOE intends to improperly close, there, the DOE was equally on notice of its obligations - both contractual and regulatory - prior to seeking closure of those schools. As with the co-locations, schools are set to phase out or close beginning the following school year. However, there are certain administrative actions the DOE is taking now

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that, if left unchecked, would render any later determination by this Court ineffectual for it would leave these schools technically open, but without students. Thus, absent injunction, the DOE could impermissibly achieve a de facto closure of the schools even if this Court later finds such closure illegal.

As set forth in the accompanying Affidavit of Leo Casey, Vice President of Academic High Schools for the UFT, the high school match process, used by the DOE to determine enrollment for the following school year, has been underway since December 2010. (See Casey Aff. ~5.) At that time, students anticipating entering high school were asked to rank their top choices for the following year. The at-issue schools were included in the available options and students were permitted to and did rank those schools among their choices. (Casey Aff. ~7.) In the main matching round, the DOE matched students to the 22 schools it sought to close. Thus, the DOE has records of both which students had ranked the targeted schools and which students had actually been matched to the targeted schools. (See Casey Aff. ~7.) Indeed, students had been informed by the DOE of those matches. (Casey Aff. ~6.) Subsequently, the DOE advised students matched to the targeted schools that it intended to close those schools and that they would be reassigned to another school from their list, presumably a lower ranked school. (Casey Aff. ~7.) Accordingly, should the Court grant a temporary restraining order to maintain the

status quo, Plaintiffs ask that Defendants be required to preserve student choices and match
information including the targeted schools such that should the Court determine that closure is improper, as Plaintiffs have asserted, the DOE may be required to revoke its reassignments and offer to re-match students to the targeted schools. The DOE should also be required to keep affected students and parents informed as to the status of the challenged schools, by sending a letter advising them of the Court's order and the potential for being re-matched,

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Of Counsel: Dina Kolker Joanna Smith Monica Hanna -andCarol L. Gerstl, Esq. Adam S. Ross, Esq. United Federation of Teachers 52 Broadway New York, New York 10004 Co-Counsel for Plaintiffs

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CONCLUSION Based upon the foregoing, and upon all the papers submitted herewith, Plaintiffs respectfully request that this Court grant a temporary restraining order and a preliminary injunction prohibiting Defendants from (i) taking steps to close orphase out any of the challenged schools unless and until the DOE has complied in good faith with its contractual obligations to first improve them, including, enjoining the DOE from taking steps to deprive those schools of incoming students effecting a de facto phase out; (ii) taking steps to close or phase-out any of the challenged schools unless and until the DOE has complied in good faith with the requirements of State regulations under SED's coordinated Differentiated Accountability and SURRIPLA framework; and (iii) taking any steps to effectuate the 19 challenged co-locations, including by permitting any alterations to be done at the school campuses that are for the direct purpose of the co-locating school which, absent the co-location would not be needed, unless and until the DOE complies with the Building Utilization Plan and amended Educational Impact Statement public processes provided for by Education Law § 2590hand §2853; and that it grant such other and further relief as the Court may deem just and proper.

Dated:

New York, New York June 2, 2011

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