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.
