Hearings today on charter co-locations and the eviction of West Side HS focused on class size

You can find the court filings in the lawsuit to block the Success co-location, Mulgrew vs. Bd of Ed, by searching this website for Index case #152847/2023. including my affidavit here. The filings in the lawsuit to block the West Side HS re-location and Brownsville/Aspiration co-location, Fernandez vs. Bd of Ed, can be found on the same website under Index case #155629/2023, including my affidavit and the affidavit of Jacqueline Shannon, Chair of the Brooklyn College Early Education Department, on the importance of the LYFE program.

UPDATE at 5 PM:  The Judge ruled that the Temporary Restraining Order would continue so that Success Academy is barred from renovating the spaces in Waterside and Sheepshead Bay until he rules on the application for preliminary injunctions in both lawsuits, which he intends to do as soon as possible. 

This morning at 10:30 AM, at the NY Supreme Court building at 80 Centre St., Judge Lyle Frank heard  arguments in the lawsuit to block the co-location of two Success Academy charter schools in the Waterside Leadership Academy building in Queens and the Sheepshead Bay high school complex in Brooklyn.  He also heard arguments in the lawsuit to block the re-location and co-location of three transfer schools, designed for under-credited and over-aged students: the forced eviction of the Edward A Reynolds West Side High School in Manhattan to a building across town to make way for The Young Women's Leadership Academy, and the co-location of Aspirations Diploma Plus High School with Brownsville Academy in Brooklyn.  (For more on these lawsuits, see here and here.)

The small courtroom was chock full of attorneys, plaintiffs, observers, a couple of reporters, and four very young Success Academy children wearing their bright orange uniforms, sitting and sometimes squirming in the first and second rows.  They were clearly put there to try to affect the outcome of the case. Unfortunately, it was very difficult to hear much of what was said because there were two air conditioners humming loudly, and the attorneys were speaking with their backs to us, facing the judge.  We will hopefully get a transcript soon but until then, please take this account of what transpired with some large grains of salt.

Judge Lyle Frank was appointed to the Supreme Court in 2018.  He is relatively young, and not afraid to make waves by ruling against the the City and the DOE in some prominent instances, when he believes that they have not been following the letter of the law.  Last summer, he ruled that the budget cuts to schools should be restored because they had been illegally imposed by the city.  Though later on appeal, the Appellate Court let the cuts stand, they agreed the DOE had acted illegally. More recently, he issued a preliminary injunction against the City's plan to change the healthcare of NYC retirees to a Medicare Advantage plan.

This morning, he jauntily walked into the courtroom, slipped on his robe, seemed pleased that the room was full of observers, and made a joke by asking if there were "any retirees" among them.  Then he launched right into closely questioning the four attorneys for the city, and the two lawyers who represented the parents and teachers who oppose these moves, Dina Kolker of Stroock and Laura Barbieri of Advocates for Justice.

The DOE immediately argued that these cases should be dismissed, based on their view that the issue should have gone to the Commissioner first instead of to Court, and if not, they should be granted another 45 days to research and argue the other claims made in the lawsuit.  

The Judge seemed surprised, but seemed to ignore that request, and immediately dove into the more substantive questions: namely, whether the Educational Impact Statements should have mentioned the potential impact of these proposals on class size, and more specifically, whether DOE should have analyzed how the loss of rooms at the existing schools might prevent them from lowering class size, especially considering the new class size law passed last spring by the Legislature and signed into law by the Governor this fall.

The city's defense seemed to be primarily based on two narrow issues: that the state law that requires EIS's does not explicitly mention class size, and again, that any legal challenge should have been filed with the Commissioner first, as matters such as class size are so complex that they require education expertise.   

In response, Dina Kolker pointed out that the state law that mandates the creation of Education Impact Statements cites enrollment among many factors that should be examined, but also specifically says that the list is not exhaustive, and that the "statement shall include, but not be limited to" these factors.  Clearly, changes in class size have a serious educational impact on students and thus should be addressed in the EIS, especially given the new state law.  She also cited precedents in which the court had blocked changes in school utilization based upon legally deficient EISs, without the issue going to the Commissioner first, most notably, in the decision by Judge Lobis in 2010 to halt the closure of nineteen schools.  

Later in the hearings, the city attorneys suggested that since the EISs did mention changes in enrollment, that was practically the same as class size, (which of course isn't true).  They also proposed that since the DOE is currently in compliance with the new class size law (which actually doesn't kick in until next fall),  what happens to class size if these co-locations occur is not relevant  at this point.  

They added that DOE will comply with the class size law in the future, and the Judge replied, "but how, if they [the schools] need more classrooms and the charter school takes up all the space?"  At that point, the city reiterated that this is a complex question that only the Commissioner was qualified to decide.

In general, Judge Frank seemed to respond to the city's arguments with skepticism.  Yet the decision on whether to continue a temporary restraining order in the case of the Success Academy and/or order a preliminary injunction in both cases depends on three different assessments by the Court:  one, the likelihood of the lawsuit's eventual success when it is considered in full; two, whether the harm by letting renovations go forward is irreversible; and three, the balance of equities between the opposing parties.  

As to the latter two issues, the city argued that the Success charter schools are due to start school in mid-August so the renovations must start soon, that any renovations could be undone, and that "children are more important than buildings."  Dina Kolker countered that renovations are expensive to reverse, that the construction could disturb many of the activities, including summer school, currently taking place at the Sheepshead Bay complex, and that the fate of children are involved in both sets of schools, not just the charters.  

Then there were arguments from both sides on the secondary issue as to whether Advocates for Justice should have legal standing to be a petitioner in this case.  DOE said no, Laura maintained that they should, since they are a non-profit that is expending resources and time on advocating for student rights.  

She then argued that the fact that several of the PEP members had their cameras turned off during the vote on these transfer school moves was a clear violation of Open Meetings Law, since it is impossible to ensure that the right person was voting; the videotape for a large section of the PEP meeting is also missing.  The city responded that these were mere "technical violations" that shouldn't nullify the votes.

Laura went on to say that the EISs were also deficient since they included no discussion of where students at the transfer schools with special needs would receive their mandated services, and that depriving of them of these dedicated rooms is a violation of the city's Human Rights Law.  In addition, the EIS contained no analysis or discussion of the loss of the LYFE center and how that would affect the students at West Side High school who are young parents. 

See the affidavit  of Jacqueline Shannon, Early Childhood Department Chair at Brooklyn College. on how critical the LYFE Center is in keeping these students engaged and attending school.  The LYFE Center is a day care program which was established to care for the infants and toddlers of West Side students while they are in school, with abundant research and experience showing their value. What's fascinating is that Judge Lobis in her 2010 decision  in which she ruled  that 19 school closures were illegal because the EIS's were inadequate explicitly cited the fact that there was no discussion of how the loss of LYFE centers in these schools would impact students, just as in this case:

The EISs completely failed to provide information about specific programs existing at the schools proposed to be closed or phased out, or where the students would be able to find such programs. For example, where the school had a Living For The Young Family Through Education (LYFE) Center, no mention was made of that program, or where a similar program existed in other city schools.

The attorneys for the city responded that the West Side EIS contained such a discussion, which is false.  The EIS does mention that the LYFE Center may remain in its original site, more than a mile away from the new West Side school,  but never defines what the LYFE Center is or even attempts to describe the impact to the West Side students from having access to it in the same school building where they are enrolled,  as you can see for yourself.

The city's attorneys also claimed that EISs do not have to specify which rooms will be used to deliver special education services; but as Laura responded, they should at least analyze whether there will be enough rooms for that purpose, once these proposed co-locations and re-locations take place.

To sum up, the arguments on both sides were interesting and we should hear soon on the issues of the TRO and preliminary injunction, and hopefully, even on the broader questions of whether these moves should occur at all.  

One thing I predict, however, is that after today, future EISs will at least mention the issue of class size and at least superficially pretend to discuss the ability of affected schools to comply with the new class size law, no matter the outcome of these particular cases.