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Wednesday, June 22, 2011

Yesterday's court hearings in the school closure/co-location lawsuit

Yesterday afternoon, oral arguments were heard in the UFT/NAACP school closing/co-location lawsuit. State Supreme Court Judge Paul Feinman’s courtroom was packed, mostly with attorneys and reporters, so crowded that initially the guards let in only about five unaffiliated observers (including me.) The cadre of charter school lawyers was especially immense; about 25 of them, all apparently pro-bono. The city sent a handful of lawyers, including Michael Best, and the UFT/NAACP had a small contingent from Stroock, Stroock and Lavan.

Chuck Moerdler, Stroock’s senior litigator, started by saying he had only three main points: One, that the case could be streamlined, because DOE agrees that they need approval from the State Education Department before they can close 12 out of the 19 schools; and yet they have not even filed any applications to do so, as the State Education Commissioner confirmed just that morning.

Second, last year, there was an signed agreement between the UFT and DOE to provide extra help to these schools, as part of settling the previous lawsuit, including an “education plan” that would provide them with more teachers in the ATR pool (absent teacher reserve) and support in myriad ways.

Whether or not that agreement was a binding contract, there was an “obligation of good faith” that DOE had utterly failed to live up to. At Beach Channel HS, for example, the DOE agreed to send 11 ATR teachers , but two never showed up, and another was “illegally” asked to teach special needs students. At Columbus HS, twenty five classes in the fall did not have a single teacher, and the single ATR teacher they sent was only qualified to teach typing and stenography (!) which the school does not offer. At Jamaica HS, where they were supposed to provide a Teacher Center,  the principal received an email about this on June 10, only a few weeks ago, following nearly a full school year of non-action.

Third, as to the charter co-locations: DOE put boilerplate language into the Building Utilizations Plans, they were empty of content until the UFT/NAACP lawsuit was filed; they are still rewriting the BUPS and redoing all the hearings to try to repair the deficiencies, but they are still not adequate.

In any case, these BUPs are “ wholesale revisions,” and according to state law, any “significant” revision of a building plan requires a new six-month waiting period before the start of the next school year when the co-location can occur. It is now far too late in the year. Moerdler went through a litany of some of the unfair and inequitable co-locations that are still being contemplated, with children at the district schools losing equitable access to  bathrooms, libraries, gyms, etc. He argued that the “city of NY which has betrayed” these schools by their failed promises, and that the NYC DOE has one goal only: “the destruction of free public education in New York City.”

The city’s attorney, Chlarens Orsland, was up next. He said that the DOE was “working with State Education Department” to ensure they would get approval to close these 12 schools and that they expected a decision by July 31. The other seven schools (ironically those not on the state’s failing list) can be closed without the state’s approval. He denied that there was any agreement with set timelines to provide extra support to these schools; and cited an affidavit from former Chancellor Joel Klein, who disputed the UFT’s interpretation of this agreement.

( Klein’s affidavit says that the “agreement was never intended to be a mechanism to limit or forestall any of the DOE’s determinations as to the necessity of closing or co-locating schools. Rather, the portion of the letter agreement providing for the Education Plan was a mechanism to ensure that the 19 schools, which had a history of poor performance and student outcomes, received additional resources to enrich the students’ educational experience.”)

As Orsland put it, the Chancellor wanted to make the educational plans for these schools as “robust as possible,” but there were no start dates or milestones attached, and thus the DOE is in “compliance.” Could the DOE have gone quicker? Perhaps; but their failure to do so should not stop them from closing these schools anyway. (Subsequently, Moerdler contradicted the attorney’s claim that there was no timetable, by reading aloud from the document, which said these steps would occur during the 2010-2011 school year.)

As to the co-location issue, the UFT is “misreading” the education law; the state legislature clearly wanted the DOE to be able to revise BUP’s and EIS’s in response to public input; and not to delay these co-locations from taking place.It simply “doesn’t make sense” to expect them to “wait another six months” if they rewrote the plans according to the comments they received at hearings. The Chancellor believes that charter school should be encouraged in any building that there is available space, and they have found appropriate buildings where they can be “accommodated.”

Last, Andrew Dunlap, from Kirkland & Ellis argued on behalf of the charter schools. Dunlap said that the new BUPs addressed the concerns cited in the original UFT complaint, but they had just received new affidavits citing problems with the new BUPs, and hadn’t had time to rebut them. The Judge gently rebuked him, pointing out that by continually revising these plans, it was the DOE’s fault for creating a “moving target,” and when do you stop the clock?

Dunlap soldiered on, saying that many of the allegations in the new affidavits were incorrect, and the fact that the DOE had dropped three charters from the lawsuit (the two Promise Academies and Girls Prep) showed that they had no case in these other instances as well. In any case, the lawsuit should have been filed earlier in February, which would have given them more time to revise the BUPs; now if the plaintiffs win their case, these charter schools won’t be able to open their doors in the fall, and this would risk their “survival.”

He complained that some of the schools had offered employment to teachers who are moving across the country to take these jobs. (What about our 4100 NYC teachers, who are threatened with losing their jobs?) Dunlap then went on about the unfortunate fate of the Kindergarten and 1st graders who have applied to attend the “Teaching Firms of America” charter in Bed Stuy, at PS/IS 308 where there is lots of room to accommodate them. (Apparently the parents at that school do not agree.)

Judge Feinman responded sternly that if these charter schools do not open, “the fault lies with the DOE or the city,” and it is not his job "to say that charters are good or bad, if co-locations are good or bad” but to make sure that the law is followed.

There was a short round of rebuttal from both sides, but that was basically it. Then a different attorney got up to argue against the Brandeis HS co-location; he seemed to want the judge to stop last night's Brandeis co-location hearings  from occurring, and/or the PEP vote next week, which the judge refused to do.   Feinman did order that any construction to accommodate the charter, Upper West Success, should not occur  until July 1, by which time presumably the judge will decide the outcome of these cases.

For more newsclips on the hearings, see GothamSchools, Post, Times, NY1, WNYC.

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