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SUPREME COURT OF THE STATE OF NEW YORK .

COLINTY OF NEW YORK

-------- x
In the Matter of the Application

of

THE BOARD OF EDUCATION OF THE CITY


SCHOOL DISTRICT OF THE CITY OF NEV/ YORK ("DOE"), and DENNIS M. WALCOTT, as Chancellor of the DOE,
Petitioners,

AFFIDAVIT OF MARC STERNBERG IN SUPPORT OF THE VERIFIED PETITION AND PETITIONER'S MOTION FOR A TEMPORARY RESTRAININ ORDE,R
Index No
112

For a Judgment and Order Pursuant to Article 75 of the Civil Practice Law and Rules, - against -

MICHAEL MULGREW, as President of the I-INITED FEDERATION OF TEACHERS, Local 2, American


Federation of Teachers, AFL-CIO; and ERNEST LOGAN, as President of the COI-INCIL OF SCHOOL

SUPERVISORS AND ADMINISTRATORS, Local 1, American Federation of School Administrators, AFL-CIO,


Respondents.

STATE OF NEW

YORK YORK

)
SS

coLrNTY OF NEV/

MARC STERNBERG, being duly sworn,

states as follows:

1. I am the Deputy Chancellor


Department

for Portfolio Planning for the New York City

of

Education

("DOE"). I

make this affidavit

in

support

of the petition and


enjoin

petitioners' motion
enforcement Federation

for a temporary restraining order and preiiminary injunction to


decision which found that grievances filed

of an arbitrator's

by the

United

of Teachers ("UFT") and the Council of School Supervisors and Administrators

("CSA"), (collectively, the "LJnions") were arbitrable. The arbitrator's award finding the

grievances arbitrable and sustaining the grievances impermissibly interferes with the powers

of

the highest educational authority in the State

of New York, the Commissioner of Education

("Commissioner"), and negates his determination approving the DOE's plans to close 24 failing
schools and open new ones in their places. The arbitrator's award not only violates public

policy, but was also made in excess of the arbitrator's authority under the collective bargaining
agreements ("CBAs") between petitioners and the Unions, and New York

law

governing

arbitration awards. More seriousl enforcement

of the

award would consign over 30,000

students at24 struggling public schools to another year of lost opportunity.

2.

As Deputy Chancellor for Portfolio Planning, I oversee the office responsible

for managing the portfolio of schools in the City School District and ensuring that all students
have access to high quality educational options.

have held my present position since May

2010, and have been employed previously by the DOE as a teacher between 1995 and 1998 and
as a

princal between 2004 and20Og. This affidavit is based on my personal knowledge of the

DOE's determination to close and replace the 24 schools and the factors that led up to that
determination, my review of documents referred to below, and conversations with my staff and
other DOE employees.

Background on the DOE's Proposed Replacement of Strueslinq Schools

3.

Pursuant to 8 N.Y.C.R.R. $ 100.2, the Commissioner designates schools that

are the farthest from meeting certain academic benchmarks he has estabiished and most in need

of improvement as Schools Under Registration Review ("S[IRR"). Many SURR schools

are

also designated as persistently lowest achieving ("PLA") schools, based on, among other things,

their low graduation rates and/or failure to make adequate yearly student progress. See 8
N.Y.C.R.R. 1 00.2(pxe).

4.

On

April 26,2072, the Panel for Educational Policy ("PEP")

authorized the
replace

immediately DoE to close 24 SURR/PLA schools. The PEP also authorired ttr" DoE to the closing schools with new schools that

will continue to serve the students who

were enrolled
a

schools with in the schools to be closed. This initiative will provide the students at these

may qualify the subject schools for renewed opporfunity for success. Furthermore, the initiative intervention model federal School Improvement Grant ("SIG") funding under an educational called "Turnaround."

5. In the case of SURR schools, in addition to the PEP approval


described above, the

process

DoE must also submit a closure application to the Commissioner for


June

approval. By letter dated

22, 2012, a copy of which is annexed to the petition

as Exhibit
as

,,2,,, theCommissioner approved the DOE's plans to close the 24 fa'i'ng SURR/PLA schools
authorized bY the PEP.

6.
application

When the Chancellor determines to open a school, he must submit registration

an

for

of the new school to the commissioner, who makes a

of Regents (the "Board of recommendation regarding approval to the New York State Board
applications' which Regents"). See 8 N.Y.C.R.R. 100.2G)). By approving the DOE's closure

expressly contemplated

the opening of 24 new,

strengthened replacement schools, the

to register replacement commissioner also recommended approval of the DoE's applications


schools that

wiil

welcome in the students who had attended the closed schools when classes

begin again in September. See Petition, Ex' 2'

7.

issue' The purpose of the DOE's initiative with respect to the 24 schools at

to expeditiously improve which has now been authonzedby the PEP and the Commissioner, is
Towards this end, the educational opportunities for the students enrolled in these 24 schools'

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each new school has developed rigorous, school-specific strategies

to

measure and screen

prospective staff, including cunnt staff who apply to work at the new schools. Based on these

criteria, and in accordance with the staffing requirements in the DOE's existing CBAs with the
Unions, new schools have put in place a process aimed at hiring the best possible teaching staff,
thus immediately improving teacher quality and, by extension, improving the quality of learning

for the students.

8. In hiring instructional

staff for new schools, the DOE historically

has

demonstrated an ability to hire high-quality teachers. The process

will be no different fot the 24


26,000

new schoois at issue in this case. Indeed, the schools have already received over
appiications for positions at these schools.

9.

The new schools have also developed new programs and school supports that

are intended to improve student learning. The DOE intends to implement new instructional and

structural reforms at these 24 schools that


success and faculty

will include new missions

and visions for student

excellence. These schools will, among other things, adopt new curricula and

instructional models and offer more academic supports

for serving high-needs students. By

building on the strongest elements of the existing schools, hiring new talent and ineorporating
new elements designed to better meet student needs, the immediate closure and replacement
these schools

of

will, in our judgment, give students access to a higher-quality educational option

whiie they continue to attend school in the same building.

10. To better effectuate

these plans, the

DOE also applied for SIG funding for

the new 24 schools. SIG rnding is made available through the federal government's
Elementary and Secondary Education Act for states to distribute (in New York's case, through

the State Education Department ("SED")) to schools deemed persistently lowest achieving,

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provided that the school districts seeking such funding adopt one

of four federally-approved

intervention models for those students.l See id. The DOE applied to SED for SIG funding for

the24new schools under the "Tumaround" model. See id.

11. The DOE

has been clear about its intent to move forward with closing the
'We

struggling schools and opening new ones regardless of whether SIG funding is provided.

will not allow the educational futures of 30,000 students to be contingent on the recet of funding. The DOE is committed to improving the educational opportunities for its

SIG

students,

regardless of whether or not its SIG application is approved. However, when the Commissioner

approved the DOE's SURR plans to close the 24 struggling schools and replace them with new
ones, he also stated that SIG funding

for the 24 new schools would be approved conditionally

upon three events: (a) demonstration of compliance with Article 18D of the UFT's CBA at the

new schools; (b) submission of proof that "relevant stakeholders" had been consulted in the
process of crafting the proposals for the new schools; and (c) a demonstration of reduction of the

risk of enrollment of disproportionate numbers of students with disabilities, English


learners, and students that are performing below

language

proficiency.

See Petitioner, B'x.2.

12. The conditions

placed on the receipt of SIG funding are wholly unrelated to

the Commissioner's clear approval of the SURR plans to close the 24 struggling schools and
open new ones in their piace.

13. In sum, under the duties delegated to him by State law and regulations, the
Commissioner determined that the DOE's proposal to close the 24 SURR schools fulfilled all

regulations require school districts to implement one of the four intervention strategies set forth by the federal statute for PLA schools. See 8 N.Y.C.R.R. $ 100.2)(10)(iv). However, approval of that intervention model for SIG funding purposes does not affect the State Commissioner of Education's abitity to approve a school district's plan to close a SURR/PLA school, or to recommend the registration of a new school.

t Ne* York

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applicable regulatory requirements, and also recommended the registration


replacement schools.

of 24 new,

The DOE

Suffer lrrenarable Harm if the Arbitration Decision is not Enioined

14. Permitting enforcement of the arbitrator's attempt to substitute his own


judgment for that of the highest education official in the state while litigating its merits will

totally derail the DOE's plans to effectuate change at these 24 schools. Even a temporary
intemrption of the process now in progress to close the struggling schools and replace them with

new, strengthened ones will cause ir:reparable harm to the DOE's ability to attract qualified
candidates and engage in the structural overhauls necessary to have the new schools ready for
students by the first day of classes in September.

15. If the process of opening the new


basis, the DOE

schools is intemrpted, even on a temporary


accept offers from other schools or

will lose well-qualified candidates who will

other school districts. As such, it will destroy the DOE's ability to get the new schools properlystaffed and up and running in time for the first day of classes in September.

16. Furthermore,

the DOE

will be left with a particularly sharp Morton's fork

as

to the ourrieula and staff positions it has already created for the new schools. Allowing

the

arbitrator's decision to stand, even temporarily, would require that the entire staffs of the closed struggling schools be returned to their positions, despite the proven failure of these schools.

With less than two months until September, DOE must continue to move forward with its plans
to open new schools that will properly serve the over 30,000 students.

17. Effectively,

even a temporary delay of the implementation process of State-

approved closures and openings due to an arbitrator exceeding his authority would prevent the

DOE from implementing those State-approved plans. Accordingly, the DOE must be granted

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temporary restraining order

until this Court can issue a preliminary injunction, and the

arbitrator's decision is eventually fully enjoined.

The Harm That Over 301000 Schoolchildren Will Suffer if the Arbitrator's Award is not of Eouitv Order Vital as a a Temnorarv Restr Enioined

18. The DOE's inability to proceed with its implementation,

even temporarily,

will

consign the over 30,000 children who will be attending the new schools in September to

continuing in schools that the state's highest educational authority expressly permitted the DOE
to close and replace.

i9.

Justice Paul Feinman of this Court stated last year that

"[i]f

the failing public

schoois are not closed, students may be subject to substandard educational environments which

will obviously cause them to be considerably harmed." Mulqrew v. Bd. of Educ., 33 Misc.3d
350, 366 (Sup. Ct. N.Y. County 2011).2

20. The harm


stand, even briefly,
unconscionable

these children

will suffer if the arbitrator's decision is permitted to

will

outweigh any inconvenience alleged by the Respondents'

It is

to allow the educations of over 30,000 children to suffer to avoid

possible

inconvenience to adults who may have to work at a different school.

(A conclusion and signature pagefollows.)

'

direction, his decision reflected the particular circumstances of that case, essentially involvlng an -carry pO-Oant to a negotiated letterallegatron that the DOE failed to _out a remedial Plan No such allegations exist in the present case-the DOE.is attempting to carry-out a agrement. rut"-upproved remedial p1an, and an arbitrator is attempting to substitute his authority for that of a govefiment official.

Whil" Justice Feinman ultimately concluded that the equities did not tip decidedly in either

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Conclusion

2l.
documents,

For the reasons discussed both above and in petitioners' accompanying


a

respectfully request that the Verified Petition and Petitioners' Motion for

Temporary Restraining Order in this case be granted in their entirety, together with such other

relief as the Court deems just and proper.


Dated

New York, New York July 2,2012


64

Sworn to before me this 1'l- day of |uly,2012

NOT

*""?l'{,IF,)83'to"lll'lF"'*
Gommission Expires Ji

audri.i ew Yo*

33i1yl'

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