Report On The NYC Schools Closing Lawsuit Appeal

Oral arguments in the City's appeal of the State Supreme Court Decision by Judge Joan Lobis -- which blocked the DOE from its threatened closing of 19 schools -- were heard yesterday (5/13) in the State's Appellate Division, at 27 Madison ave., Manhattan. One reason why it was of particular importance to me (neither of my 2 children has attended one of the schools threatened with closure by the DOE) is because I am a graduate of one of those that is -- Christopher Columbus H.S. in the Bronx.

The case is known as Mulgrew vs. Board of Ed.

First up before the 5-judge panel was NYC Corporation Counsel attorney Alan Krams appealing the decision on behalf of the DOE.

Mr. Krams said that in her decision, Judge Lobis -- who had ruled that DOE had provided insufficient notice and impact analysis about its plan to close the schools -- had mistakenly applied the higher standards of environmental statutes (SEQRA, the State Environmental Quality Review Act) rather than education law, which does not require as much in the way of impact analysis.

One of the judges pointed out to him that the extension of Mayoral control of the schools which passed the State Legislature in 2009 was predicated on requirements such as community notification re: school closings.

Mr. Krams acknowledged that DOE had failed to give School Leadership Teams (SLTs) formal notice, but he reiterated that the lower court had treated it like SEQRA and had applied too high a standard for notification. He said that education law gives the school officials the power to make the sole determination about school closings.

A judge pointed out to him that the 2009 education statute requires that educational impact of a decision like this be determined. Various judges expressed skepticism about whether the impact of the closings on students and community was adequately taken into account by the DOE.

Mr. Krams said the process can't work if the DOE must take into account how each student can get the same programs at a new school as he or she had at the school they want to close. He also said that the UFT, the lead plaintiff in the lawsuit against the closings, does not have standing to sue, a claim greeted with skepticism from the bench. The reason, he said, is because the UFT is an unincorporated association, so it would only have standing to sue if ALL of its members were affected.

Now it was the turn of the attorney for the plaintiffs, Charles Moerdler of Stroock and Stroock and Lavan. He said the 2009 statute was negotiated between the DOE and the State Legislature, with the Chancellor having a direct role in the negotiations, and that the DOE was reneging on the agreement in the way they've handled this matter. He said there is no compliance with the requirements of the statute and that the DOE is essentially saying that students and teachers must be held accountable for their behavior and performance, but there is a different standard for us.

Mr. Moerdler said that Judge Lobis had briefly referred to SEQRA in her decision, saying it is instructive in this instance, but that she in no way suggested that its provisions were binding on the process here. He said that the DOE was required to give proper notice to the CECs, and that the CECs and SLTS were supposed to have joint hearings with the DOE on this and they didn't get them.

He said that DOE gave no notice to the Bronx and Manhattan Borough Presidents or the Chair of the City Council Education Committee, all of whom became co-plaintiffs in the lawsuit. He said that of the 19 schools slated for closing, 14 were proficient by the DOE's own measures and 5 of them in every respect. The DOE then, he said, came up with NEW standards to justify the closings.

A judge asked Mr. Moerdler if negotiations between the 2 sides are taking place, and he said they are trying to avoid having to request a contempt motion against DOE (for failure to comply with all aspects of Judge Lobis' order), and are attempting to negotiate an outcome to the suit.

He reiterated that DOE violated a statute they'd jointly negotiated, deliberately failed to comply with it, and had pretty much admitted that they (DOE) had not invited CECs and SLTs to participate in the process because they were afraid that those groups "would thwart the process" of the closings.

Mr. Krams then spoke again, returning to his contention that the UFT had no standing to sue. A judge asked him if he was really saying that a teacher in a school being closed would not be injured by that closing. Mr. Krams said the elected officials did not have standing to sue because they would not be injured themselves by the closings -- only their constituents would. Judges were skeptical of that one as well, as you might expect.

He then said that CECs are not in the picture for the high school closings, because only K-8 schools have CECs. He said high schools are under the sole control of the Chancellor. (This of course leaves out that there are borough-wide high school councils and a citywide council on high schools. I mentioned that to some of the plaintiffs outside the courtroom after the oral arguments were concluded, and they said they were aware of that omission and had mentioned it in their papers.).

Mr. Krams concluded by saying that the public was heard loud and clear in the 19 individual hearings and in the PEP hearing about all 19. (Having attended the December hearing at Columbus for it and a smaller school, Global Academy, which is located in the same building and was also targeted by DOE, and having attended the subsequent P.E.P. meeting, I can say unequivocally that the public may have been heard, but what they said was totally discounted in the decisions, because just about everyone who spoke objected to the closings.)

That was it. It is not known how long it will take for a decision to be announced. For what it's worth, it seemed to me that the judges reacted more positively to the attorney for the plaintiffs than to the attorney for the DOE.

Richard Barr