NYC parents, teachers, and kids win in court to halt budget cuts to schools!

 

What a morning!  First there a huge rally at Foley Square, with parents, teachers and advocates inveighing against the grotesque budget cuts to schools.  Tamara Tucker, the lead plaintiff in the lawsuit against these cuts, spoke first, and her photo at the microphone is above.

Tamara and I left the rally at about 9:40 AM, and quickly walked over to the courtroom at the NY State Supreme Court, 80 Centre St., room 308 so as not to miss our chance to witness the oral arguments in the case before Judge Frank.  The courtroom was already half full, mostly with reporters and city attorneys, and soon would fill up completely before the hearing started.

Among the parents I noticed aside from Tamara were Tom Shepherd and Kaliris Salas-Ramirez, two PEP members, and NeQuan McLean, CEC16 President.  Tom and NeQuan had also provided us with affidavits about how the public process in adopting the budget had been contrary to what’s required by state law.

The court officer said that we had to wear masks unless we were vaxed or boosted in the last six months,.  A few people went up to show their vaccination cards; I kept my mask on even though I’ve been recently boosted.

Jill Jacobsen, reporter for NY1, showed up with a cameraman, and submitted a piece of paper requesting that  theyvideotape the proceedings.  The Court officer came back and said the Judge respectfully declined the request.  (I didn’t know that was possible in NY courtrooms, did you?)

Judge Frank came in and jokingly said, “My Gosh!  So many people in the courtroom!”  He immediately launched into the substance of the case.  He thanked both sides for their papers, said he was on a sharp learning curve on the issues involved, and focused on the Emergency Declarations that the DOE had been using to short circuit the PEP vote, for at least ten years out of the last twelve.

He asked the City’s attorney, Jeffrey Dantowitz, about the latest Emergency Declaration issued on May 31, what did it say?   Did it mean the PEP didn't have to vote before the budget is determined?  Dantowitz said that it did, but that in any event they did eventually vote to approve the budget later, even if this was after the Council voted to adopt the budget. 

The pro bono attorneys for the plaintiffs, Laura Barbieri and  Arthur Schwartz from Advocates for Justice stood up and said the Emergency Declaration was obviously invalid; it described no explanation of any actual emergency, and no affidavit from the Chancellor was submitted  to attest to an emergency.  Arthur said, “It’s not like 9/11 or Covid just happened.”

Judge Frank pointed out that as we had reported in our Memo of Law, year after year, the DOE has issued Emergency Declarations with boilerplate language, and that they appeared to be issued just to dismiss the importance of the PEP vote.  Even the Chancellor said at the PEP meeting that their vote didn’t matter.

Dantowitz said their vote did matter, and that groups like Class Size Matters had put out messages about the budget cuts before both the City Council and the PEP votes, and these bodies had still voted to approve the budget.  A vote is necessary eventually from the PEP, he said, because the Emergency Declaration only lasts so long. (60 days I believe). 

The Judge pointed out that the Council could have voted after the June 23 PEP meeting, but Dantowitz claimed that was too late for schools to start planning for next year.   He added that a tremendous number of issues need to be negotiated with the Council (which doesn’t explain why they seemed to rush the vote earlier than the June 30 deadline).  He pointed out that the budget had been “overwhelmingly adopted” by the Council and read out a quote from the Speaker attesting at the time to how wonderful the final budget was.

He also cited a NY Post article, that reported how budget had been held up for a few days because of the proposed budget cuts to schools, and that we have to look at the budget in its entirety, and not just the education budget.

Laura said that if the education budget had been posted online and presented for public comment on April 26, the same day as the Executive budget was released, there would have been 45 days of comment and still voted  before the City Council voted on June 13.  (In my affidavit, I pointed out this could have been happened by June 10.) .  Or, she said, the Chancellor could have called an Emergency vote of the PEP as Chancellor Klein did in 2009 when the Council was about to vote on the budget before the PEP, and then-Manhattan PEP member Patrick Sullivan alerted the DOE to the fact that this was illegal.  (For more on Patrick’s central role in the genesis of the current case, see today’s Daily News.)

This idea seemed to resonate with the Judge, who repeated that the Council did not have the benefit of hearing from the 70 people who spoke out against  the budget cuts at the PEP meeting on June 23.

Dantowitz kept on saying that it was “pure speculation” that the Council would have voted differently, but the Judge seemed to lose patience with that argument. 

Judge Frank said that next question is, assuming the process was “kaput”,  can I tell the Council to revote, or does that violate the separation of powers?  Arthur and Laura cited past cases when the Court has instructed the other branches of government what to do when they flouted state law or the constitution.

Laura stood up and pointed out that  41 of 50 Council members signed a letter that they regretted their vote and were not told about the impact of these cuts.  Many have since said they were misled by DOE who insisted that only unfilled position would be eliminated as a result, but now we know that at least 700 teachers have been excessed.  This is “material misrepresentation,” as she put it.  The Judge said he would consider whether to instruct the Council to revote, or instead allow them the opportunity to do so.

The City’s attorney got very upset as it was becoming clear that he was losing his case, at least as far as Judge Frank was concerned.  He said, “I don’t want…” and the Judge interrupted, “I know you don’t want any of it.”  

 Then the discussion became what the Preliminary Injunction would say, would it be based on the previous TRO that said last year’s budget would be in place until the Council revoted, or something else?

As far as returning to last year’s budget, the city’s attorney said,  “That ship has left the port.  Plans are being made, goods ordered, to revert to last year’s budget would be detrimental.”  He argued that the plaintiffs should have filed the case on June 13, as soon as the Council vote happened.  “Relief is inappropriate; we ask that the preliminary injunction be denied.”

Laura said that even as late as last night, the DOE added money to school budgets by allowing them to repurpose $100 million in recovery funds that now could be used for teacher salaries, and quoted from a press statement from the Speaker, that this $100 million offer was “inadequate and  misleading.”  The City’s attorney insisted that was “not new money, but they were simply robbing Peter to pay Paul” (something I tweeted critically last night!)  He offered to have the City agree to carry out the budget process properly in future years, as long as there didn’t have to be a Council revote this time.

 Dantowitz also claimed that the DOE budget couldn’t be invalidated without invalidating the entire city budget at the same time (which is absurd.).  He muttered something about the need to balance the entire budget etc.  Laura pointed out that there are billions of dollars in the city’s reserve as well as unspent education funds from last year, according to the Comptroller.

Finally , the Judge asked both sides to prepare papers on how the preliminary injunction should be written.  The city's attorneys have till the end of  today; the plaintiff’s attorneys have until the middle of day Friday.  He said he would issue his decision by the end of day on Friday.  

I hope the City doesn't appeal which would drag out the process even longer, as Laura says below.

Our 2017 Skinny Award dinner; a wonderfully joyful and inspiring evening!

Our Class Size Matters Skinny award dinner was held last Tuesday, June 20, and it was terrific, despite a last minute change of venue because the restaurant where it was supposed to be held unexpectedly closed. Many people told me it was the best Skinny award dinner ever. Amir of Casa La Femme welcomed us with open arms; the restaurant is luxurious and spacious, with good food, and a belly dancer even turned up at the end of the evening. Sorry if you didn't make it, but there's always next year. Below is the speech I gave and some photos; there are many more on the Class Size Matters Facebook page here. See also the video of the CPE1 parents singing below.  The evening was also covered by bloggers Arthur Goldstein and Norm Scott.


Welcome to our 9^th annual Skinny award dinner. This is always one of the most joyous and inspiring evenings of the year for me and I hope for all of you as well.

Carol Burris, Diane Ravitch  and John Allgood.

Before getting started Some special people I want to thank – first of all, the Class Size Matters board – Diane Ravitch, Patrick Sullivan, Monica Major, Emily Horowitz and Cynthia Wachtell.

I want to thank Diane, Cynthia and Susan Ochshorn of Early Childhood Education Policy Works for their generosity and helping to underwrite the dinner tonight.

My fellow NYC Kids PAC members who are here tonight – many of whom also volunteered to help set up and check you in -- Shino Tanikawa, Karen Sprowal, Fatima Geidi, Gloria Corsino – all great parent leaders. Also Benita Lovett-Rivera, our brilliant graphic designer, who helped with the turnout and success of tonight’s event.

I want to thank Dr. Audrey Baker and Dr. Gerry Baker, for coming and to congratulate Audrey for receiving her Doctorate of Educational Leadership just a few weeks ago.

Karen Sprowal and Jan Atwell

I want to thank Jan Atwell with teaching me everything I know about education policy and politics and has been my mentor in this area for many years Whenever I don’t know the answer to a question I just ask Jan.

And most of all, I want to thank my husband Michael Oppenheimer for supporting me every possible way – financially emotionally and telling me that what I do is worth doing, even as his own job and mission is literally saving the world from climate change.

When we started this in 2009 we held it at a little café on Chambers Street. Never did I imagine that I would still be doing this nine years later. Now I want to explain why this is called the Skinny awards: First of all, we’re a Skinny organization, with a very modest budget; and the name is meant to contrast with the Broad award, given by the billionaire Eli Broad to public school systems that conformed to his corporate reform ideology. Finally, the award is given to people who give us the real “Skinny” on NYC schools.

There are also a bunch of previous Skinny award winners I’d like to recognize who are here tonight:

Diane Ravitch won our first Skinny award in 2009 – and since then has led the nation, through her incredible intellect, knowledge and passionate and eloquent writing in advocating for our public education system, and protecting it from the privatization efforts of and the assorted billionaires, corpocrats and Silicon Valley executives who would like to privatize education I barely have time to read her prolific and prodigious blog every day – I have no idea how she manages to write it all.

Also here tonight is Robert Jackson who received the award in 2010 – for his role as the chief

Robert Jackson, Gretchen Mergenthaler; Sarah Morgridge

plaintiff in the CFE lawsuit, in which he sued to obtain funding equity for NYC schools and also for his excellent work chairing the City Council Education Committee for many years.

Regents Chancellor Betty Rosa is here tonight; please give her a round of applause. Her election as Chancellor is probably the best thing that happened to education in our state in many years; she won the Skinny award along with Regent Kathy Cashin in 2012.

In 2013, Teacher and bloggers extraordinaire Arthur Goldstein and Gary Rubinstein, received the Skinny awards, and in 2014, Carol Burris former principal of South Side HS on Long Island who is now doing a stellar job as Executive director of the Network for Public Education.

Barbara Harris, Kemala Karmen, Lisa Rudley

Also here tonight is the amazing Lisa Rudley Executive Director of NYS Allies for Public Education; Kemala Karmen from NYC Opt out and Rosalie Friend, Jane Maisal, Katie Lapham and Fred Smith from Change the Stakes– who collectively won the award in 2015 for their amazing work leading the opt out movement.

Now for the 2017 Skinny awards.

Wendy Lecker from the Education Law Center is not only a brilliant pro bono attorney but also has a terrific weekly column in the Stamford Advocate newspaper. She has represented the rights of NYC public school students since the days of the Campaign for Fiscal Equity case, and in numerous successful lawsuits since then -- including making the NYC Department of Education comply with the law when it comes to holding borough hearings on the

Wendy Lecker of Ed Law Center

Contracts for Excellence plans.

Most recently, she forced Governor Cuomo to provide legally mandated funds to struggling schools despite his efforts to withhold them. She is about to represent CSM and NYC parents on another legal matter, which I’d hoped I could announce tonight, but has been unfortunately delayed due to circumstances out of our control. Wendy Lecker, will you come up and accept your well-deserved Skinny award?
___
One of the most extraordinary stories of this year is how a student newspaper at Townsend Harris HS in Queens called the Classic helped bring down an interim principal named Rosemary Jahoda, by reporting on numerous examples of her unacceptable behavior, including refusing to address the discrimination of Muslim students, delaying sending student transcripts to colleges, micromanaging teachers, and other instances of insensitivity to students and teachers alike. They live-streamed a student sit-in to protest her actions when the Superintendent was visiting the school, and posted a recording of the principal's conversation with a staff member, in which she used foul language.

Brian Sweeney, Sumaita Hasan, Mehrose Ahmad of Townsend Harris

For all their conscientious reporting, the newspaper received the ultimate compliment from DOE officials in the age of Trump, who called their stories “fake news.” Instead, a teacher at the school countered this way, and I quote: "These students double and triple check their sources and the DOE should have done as much vetting on Miss Jahoda."

Their work was repeatedly hailed in the NYTimes, WNYC and local papers for helping to build support for the principal’s removal, which finally occurred in April. Mehrose Ahmad and Sumaita Hasan, students and co-editors of the Classic, and your faculty adviser, Brian Sweeney please come up and accept your well=deserved skinny award for your brilliant reporting and courage, and for giving us the real Skinny on NYC public schools.

____

Laura Barbieri of Advocates for Justice

The next awardees are very special to me. Advocates for Justice have fought for the rights of public school students in innumerable cases, including representing CSM in a lawsuit we helped file against Arthur Schwartz went up to argue the case in state court, he was the sole attorney against five attorneys for the city and the DOE, and an army of other attorneys who trooped in from three private white shoe law firms representing Success Academy and other charter schools.

Yet Arthur was not daunted, argued the case brilliantly, and we would have won that lawsuit, except in the meantime the Legislature and the Governor changed the law and took that clause out.  allowing the DOE to only charge $1 to charter schools for co-locating in public school building; as the state law said at that time that if the DOE if they chose to give space to charter schools they would have to charge them market rates. When

Since then Arthur and Laura Barbieri, Special counsel at Advocates for Justice, have sued DOE to stop other charter co-locations and against charter school discrimination against special needs students; Laura has also represented the parents and students in E. Ramapo in federal court, against their school board diverting public school funds to promote their own religious schools and discriminating against students based on race, color, national origin, ethnicity, and religion.

Most recently, Laura represented Class Size Matters in the lawsuit we pursued to ensure that School Leadership Team meetings are open the public and we won vs DOE, first at the Supreme Court level and then in a unanimous decision by the Appellate Court this fall. And incredibly, like Wendy, they do all this work for free! Arthur and Laura – please come up and receive well-deserved our Skinny award .

___

The amazing parents of Save CPE1

Now last but not least, we want to celebrate and honor an amazing act of organizing organization and advocacy by the parents of Central Park East, who refused to let the principal installed at their school destroy its wonderful spirit and traditions. The school founded by Debbie Meier in 1974 has long prided itself on its progressive philosophy and democratic form of government., and when parents discovered the DOE had installed a principal who not only had not background in progressive education but put teachers who opposed her in the rubber room, grilled children in her office trying to get them to make unfounded accusations against their teachers without the knowledge of parents, and lied to them, they didn’t give up.

Instead, they fought back. They attended every single PEP meeting and urged the Chancellor to act, held numerous rallies, signed petitions, and finally in April, sat in at their school overnight – daring the DOE to arrest them. The last straw was when the principal banned two of the parent leaders from the school on trumped up charges, Jen Roesch and Kaliris Salas-Ramirez. After being subjected to more than a year of bad PR and damaging headlines, the Mayor and the Chancellor finally conceded and the principal resigned last month. For their incredible bravery, hard work, and persistence in saving their school, will Jen and Kaliris on behalf of Save CPE I, please come up and accept your award.

Parents and advocates comment on today's charter school march

For immediate release:  Tuesday, October 8, 2013

Arthur Z. Schwartz, Advocates for Justice: aschwartz@advocatesny.com; 917- 923-8136

Leonie Haimson, Class Size Matters: leonie@classsizematters.org ; 917-435-9329

Sam Pirozollo, NYC Parents Union: sam@nycparentsunion.org ; 917-533-3437 

Today, Eva Moskowitz and other charter school operators have closed their schools and are holding a political rally of students, parents and teachers, to try to pressure Bill de Blasio, Democratic candidate and frontrunner for Mayor, to go back on his campaign pledge that if elected, he will call for a moratorium on charter co-locations and charge charter schools rent.  What she and others in the charter lobby have ignored is that while Section 2853(4)(c) of the NY State Education Law allows districts to lease public school “buildings and grounds” to charters and to “contract for the operation and maintenance thereof,” it also requires that “any such contract shall provide such services or facilities at cost.” 

Arthur Schwartz, attorney with Advocates for Justice, who first filed a lawsuit on behalf of public school and charter school parents on this issue in 2011, says: “New York State Education Law requires that when a district provides space or services to a charter school it shall do so at cost.  Yet the DOE provides free space and services for more than 100 co-located charter schools.  Using figures from the NYC Independent Budget Office, we estimate that the space and services these charter schools currently receive is worth more than $100 million a year. A large chunk of that unfair subsidy goes to Success charters, which operates 22 schools across New York City, all of them co-located, with plans for seven more schools in 2014. Yet Success had an operating surplus of more than $23 million in 2012, and probably enjoys an even larger surplus this year.” 

“We have now been instructed by Justice Barbara Jaffe to take the issue to the State Education Commissioner. But in light of a recent ruling in a related case, we are asking the judge to reconsider. If she sends us to the Commissioner again we will appeal, in time to face off with a new Mayor. Success Charter Schools, which has organized the upcoming rally, is trying to exert political muscle. It will not succeed, in the public arena or in the courts. That $100 million will go back to our public schools, starved for resources, and hopefully allow them to reduce class sizes, which are now the largest in 15 years.” 

"This 'protest march' is yet another example of separate and unequal treatment afforded to charters, especially Eva Moskowitz's Success Charters," says Noah Gotbaum, a public school parent of three and a Vice President of Community Education Council District 3 on the Upper West Side and Harlem. "Success claims its schools are public, but what other public school could close their doors and demand that its parents and students attend a political rally? What other public school could sue the State Comptroller to avoid the transparency of a state audit?  And what other public school could use our tax dollars to pay its CEO almost $500,000 per year?" 

As Leonie Haimson, Executive Director of Class Size Matters points out, “A 2011 study from the Independent Budget Office showed that co-located charters in NYC receive more in public dollars per student than regular public schools, and city spending on charters is expected to exceed one billion dollars next year.  A report released by the charter lobby attempts to contradict the IBO analysis but has little credibility, especially since its author, Harry Wilson, is personally close to many in the charter school movement , according to Whitney Tilson, prominent board member of Democrats for Education Reform.  Indeed, Wilson promised not to 'harass' charters by auditing their books when he ran for NY State Comptroller in 2010.” 

Karen Sprowal, whose own son was pushed out of a Success charter in Kindergarten, observes:  “Over the last few months we have learned of even more cases of troubling disciplinary and push-out policies in charter schools, in a series of investigative reports from Juan Gonzalez of the Daily News.  There needs to be an immediate moratorium on expanding charters as well as co-locations, so that these abusive and potentially illegal practices can be carefully examined by authorities before any new charters are allowed to open in New York City.” 

Mona Davids, President, NYC Parents Union, said:  "As a former charter parent who spearheaded the charter reforms in 2010, I'm disgusted that Eva Moskowitz and other charter leaders are using parents and students as political pawns while continuing to violate the law by not serving their fair share of students with disabilities and English Language Learners, by not establishing Parent Associations and by refusing to be audited by the State Comptroller.  This march is an abuse of power by Eva Moskowitz and other charter leaders because no public school would be allowed to shut down for an entire morning to have their students engage in political activities." 

According to Sam Pirozzolo, president of the Community Education Council in District 31, Staten Island: “I find it ironic that Ms. Moskowitz, a leader who has been given the task of eliminating the achievement gap has done little more than increase the divide between the haves and have nots.  It is unfortunate that Eva Moskowitz has chosen to intimidate mayoral candidates by closing her schools for a day. She is hiding behind parents and children for the sake of profits and a paycheck. Since their inception, charter schools have been creaming only the best students from our public schools.” 

###

UPDATE on our charter co-location lawsuit

Yesterday morning in the State Supreme Court, Judge Barbara Jaffe heard arguments from attorneys working for the city and the charter schools who want to dismiss our lawsuit against the practice of DOE providing free space and services to charters, which we believe violates state law.   

The attorney from the City's Corporation Counsel  said the administration's co-location policy goes back more than ten years and has never before been challenged, and that the judge should give deference to DOE and State Ed Commissioner on this matter, especially if it’s a close call.  Judge  Jaffe responded that she didn’t need to defer if she didn’t see ambiguity in the statute.  Then the charter school attorney got up and made a lot of other arguments, each of which were quite hard to swallow. 

First, he said, Class Size Matters and NYC public school parents have no standing to bring a lawsuit, because we can’t prove any harm to schoolchildren due to the loss of $100 million (which is what we have estimated the lost revenue if the DOE charged for space and services, based on IBO figures.)  Since we can’t prove that the additional funding would mean more teachers or smaller class sizes, we shouldn’t be allowed to sue.  The judge responded that the court is supposed to interpret standing liberally.  Later, our attorney Arthur Schwartz pointed out the absurdity of this claim; including how many including the mayor have bewailed the negative impact on our schools from the $250 million in state aid lost because of the failure of the city to make a deal on teacher evaluation.  What is $100 million, he asked, chickenfeed?

 The opposing attorney also argued that the provision of free space to charters was simply a matter of allocation of resources that should be purely up to the DOE.  The Judge seemed skeptical of this point as well.  Finally, he tried to make an argument that the provision in the state law that says charters “may” contract for services or use of buildings with the district, but that "any such contract shall provide such services or facilities at cost” implies that they don’t have to have a contract to get use of these services or buildings, and if they don’t have a contract, they don’t have to pay anything.  He maintained that the free space could be considered a “contribution” from DOE.  The Judge suggested that this might be seen as an end-run around the law.  Our attorney pointed out that the charter schools already get per student funding, and the free space provided by DOE means that co-located charters are getting an extra $2700 per student than the law specifies, and more funding per student than public schools receive. If the argument of the charter attorney was taken to its logical conclusion, it would mean that the DOE was free to provide any amount they wanted to the charter schools, to the detriment of our public schools, totally ignoring the formula set out in state law.

 There was also back and forth as to whether there is any added “marginal” cost to the city by providing this extra funding to charter school students, since most of them would attend public schools anyway; the DOE says no (of course) and the IBO said yes.  Finally, their attorney argued that there are 101 charters in public school buildings enrolling 50,000 students, and if they had to pay rent they couldn’t continue to exist.  To that, the judge said “Gosh Darn, that would be a shame, but this is not the issue before me.”  [Not to mention that Eva Moskowitz’ charters had a surplus of over $23 million last year that could have paid for a lot of leases, though that might at some point cut down on the millions they spend on administrator salaries, advertising, PR and political lobbying.]

The judge was also interested in hearing more about the constitutional claim of our attorney, that there are fundamental inequities in how these co-locations have undermined the right of public school students to receive an adequate education.  The charter school attorney said that courts held in the CFE case that students are entitled not to equity but minimally adequate conditions, and the judge responded that some of the alleged facts in our brief, including public school students pushed into basement rooms next to the boiler with almost no toilets, might not been seen as even minimally adequate.

Anyway, we hope to hear in a few weeks whether the case will be dismissed or not.  Cross your fingers.  It has been dismally slow so far, given that we originally sued in July of 2011, but we hope that things will move more quickly if and when this moves to trial.