Our statement on Court decision denying preliminary injunction vs. free space for charters

Right before the New Year, Judge Feinman ruled against our request for a preliminary injunction against the DOE's provision of free space and services to charter schools, in the lawsuit that Class Size Matters, along with other parents and the NYC Parents Union, filed in July.  His decision, which was publicly disclosed today, is posted here.  Here is a fact sheet about the case.

One of the reasons he denied our request is that he determined that the payments of more than $100 million owed by the charter schools  would not necessarily be used by the DOE to benefit our kids in any way or restore the egregious budget cuts their schools have suffered, so it was difficult to prove irreparable harm.

Nevertheless in his decision, he fired a shot across the bow to DOE & the charter school industry, saying that they should not take this as any sort of signal that when the case comes to trial, he will necessarily rule in their favor. 

Below is the press statement we put out with the NYC Parents Union.  Happy New Year to all!
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FOR IMMEDIATE RELEASE

January 3, 2012

Contacts:
Mona Davids, NYC Parents Union, (917) 340-8987
Leonie Haimson, Class Size Matters, (917) 435-9329 

Statement on Charter Rent Lawsuit Ruling

On December 28, State Supreme Court Judge Paul Feinman confirmed the need for a trial to determine whether or not charter schools co-located in public school buildings should be paying for space and services to the New York City Department of Education (“DOE”).

The case, New York City Parents Union, et al v. The Board of Education of the City School District of the City of New York, et al, and Harlem Success Academy Charter School 1, et al, was a request for a preliminary injunction which would have required the agency to immediately collect back rent and payment for services from all charter schools co-located in public school buildings.

While denying the injunction request, Judge Feinman highlighted the fact that the practice of not paying rent existed since 2003 and, inexplicably, had not been challenged.  He warned the DOE and the charter schools with the following statement:

… the court’s finding that a preliminary injunction is not warranted at this stage of the proceeding should not be misinterpreted as a finding that the court has evaluated the merits of the parties’ contrasting reading of Education Law ∳2853(4)(3) and favors the BOE’s interpretation. Indeed, in planning its future budgets, neither the BOE nor Intervenor-Defendants should rely on this decision as standing for the proposition that the court accepts their reading of Education Law that if the BOE “gives” the charter school space there is no duty to pay “costs”.

Mona Davids, President of the New York City Parents Union, is pleased with Judge Feinman’s ruling and urges all co-located charter schools to heed this warning and include truthful facility costs in their budgets.  “Cases like this are why we exist.  We plan to take this issue to trial and win back the hundreds of millions of dollars due to all of the public school children in the City of New York as a result of preferential treatment of the co-located charter schools.  Charter schools that co-locate should pay rent since they are receiving the same dollars per child that charter schools with their own space receive, and, worse, co-located charter schools are limiting the space usage options of the public schools where they are co-located.”

Arthur Z. Schwartz, President of the public interest law firm, Advocates for Justice, representing the New York City Parents Union and parent plaintiffs, stated that:

“While we are disappointed that the Judge did not see the loss of $100 million to the school system as irreparable, his decision did no more, in that vein, than acknowledge the DOE’s statement that if it got $100 million it might not spend it on lowering class size.  Key to this decision is the Judge’s warning to the DOE and the charter schools that they should take the possibility of co-located charter schools having to pay rent into account when they set up next year’s budget. We look forward to a final decision on the merits before the next school year.”

Leonie Haimson, Executive Director of Class Size Matters and a public school parent, said: “It is ironic that Judge Feinman did not order a preliminary injunction because he was not sure that the DOE would spend the additional funds on restoring budget cuts to schools, reducing class size, enhancing instruction or in any way that would benefit our children.  But I find the judge’s decision very hopeful; the paragraph quoted above in particular.

“When the case comes to trial, we are optimistic that the judge will look carefully at the law and the facts of the case, and determine that from now on, co-located charter schools must pay their fair share of the costs of taking up valuable space in public school buildings and utilizing the services of city employees, as the law requires.  The gears of justice may grind slowly, but they do grind.” 

More information about the NYC Parents Union is at http://www.nycparentsunion.org/
More information about Class Size Matters is at www.classsizematters.org
For a fact sheet about the case, see http://tinyurl.com/6vaednn
To download the decision, go to:  http://tinyurl.com/8xx8wrd


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We take the city to court over charter co-locations!

Here is an article about the court hearing from GothamSchools, here is video from NY1; here is our updated press release.

Yesterday morning, parent groups, including Class Size Matters, the NYC Parents Union, and individual parent plaintiffs, took the city to court over charter co-locations, and the way in which DOE provides space and service to charters for free, which we believe violates state law.

First, we had a press conference on the steps of the State Supreme Court. Then we took seats in Judge Feinman’s courtroom at 10 AM, which wasn’t nearly as crowded as when he heard the NAACP/UFT lawsuit, but was about half full with attorneys from the NYC Corporation Counsel’s office, DOE chief counsel Michael Best, and a large number of attorneys from the firms representing the charter schools.  In contrast, our side was represented by one lone attorney, Arthur Schwartz of  Advocates for Justice, who was terrific. 
 
There were actually three related lawsuits that were argued by Arthur; the first was on behalf of the parents at IS 303, who oppose the proposal to co-locate Coney Island Prep charter in their building, which sparked huge protests last year. Over the last few years, IS 303 had turned around its previously struggling school, by using a program that has students stay in their classrooms rather than travel from one room to another.  Arthur argued that this co-location would prevent this practice from continuing, and this would degrade the quality of education.  This was backed by an expert report from the 21^st Century Fund that Commissioner King had refused to consider because he received it one day after his deadline.  

Arthur also cited the precedent of the CFE case, which held that NYC students had the right to a sound basic education, and said there were constitutional issues involved.  He added that the Educational Impact statement for IS 303 did not properly asses the negative impact on the school’s special needs students, whose services and programs would be squeezed into inadequate spaces, though Commissioner King had claimed that DOE substantially complied with the law because the EIS simply mentioned these students in passing.    Finally, Arthur pointed out that the announcement for the public hearing on the co-location was only translated into Spanish after the hearing had taken place, even though 20 percent of the IS 303 parents are Spanish-speaking.

Then Chuck Orsland, the lead attorney from the NYC Corporation Counsel’s office, spoke. When he argued that Commissioner King did not have a duty to accept the 21^st Century report, Judge Feinman expressed some skepticism about why King couldn’t have easily granted an extension. Orsland also claimed that DOE had no legal requirement to notify the parents in Spanish, and that it was speculation to say that abandoning the teaching model that had improved outcomes at IS 303 would undermine the quality of education at the school.

Then Arthur went on to argue a second case: that the co-location of Explore Charter at Parkside Prep/MS 2 in Brooklyn was illegal, citing many of the same grounds.  The public notification of Spanish and Haitian parents was inadequate and there was little or no analysis of the co-location’s impact on special needs students and English Language Learners.  Orsland responded with a long procedural objection that I didn’t really understand about Article 78 hearings.  He also argued that citing CFE was a red herring, but the Judge explained that when a co-located school takes away 40 classrooms, it may undermine the quality of education.  Orsland concluded that even given these charter co-locations, the public schools remained under-utilized.  (Meanwhile, the NYC Comptroller pointed out in an audit on Wednesday that the DOE utilization figures are so unreliable, with 10-25% error rates, as to be “a house of cards.”)

Finally, it was time for our case to be argued.  (Here is our original legal complaint, here is our reply brief.)  Arthur pointed out that NY state law holds that when districts provide space and services to charter schools, they shall do so “at cost”, but the DOE provides all this for free to co-located charters.  Since co-located charters represent about 2/3 of all the charters in the city, this means that DOE forgoes about $100 million a year in revenues.  This estimated figure is based on an analysis here and here, released by the Independent Budget Office in February 2011.  (These analyses corrected an earlier IBO 2010 report , which mistakenly held that co-located charter schools received less in per student public funding than district public school students.  Strangely, the charter school attorneys included only the uncorrected, erroneous 2010 IBO report as Exhibit 1 into evidence, without including the subsequent report or mentioning that the IBO had revised their estimates.)

Here is the relevant passage in the state law:
 
Article 56, Section 2853, Part 4(c): A charter school may contract with a school district or the governing body of a public college or university for the use of a school building and grounds, the operation and maintenance thereof. Any such contract shall provide such services or facilities at cost.

Arthur went on to explain that that this free provision of space and services leads to co-located charter schools being provided with more than the per pupil public funding that district public schools receive, leading to inequities in services and staffing.  He also pointed out that the illegal subsidy they receive from DOE of $100 million per year could prevent the loss of many of the 2500-3000 teaching positions that have occurred, and the consequent increases in class size.  

Orsland, the city’ attorney focused his rebuttal on three main points:  first, there were no contracts between charters and DOE and so there was no need for these contracts to include any charges for space or services.  Yet in Exhibit 2,  entered into evidence by the charter school attorneys, Michael Regnier of the NYC Charter Center stated something different: that “a handful of charters may have signed use agreements…but to the best of our information and belief, those agreements were in fact never executed”  (whatever that means).  In any event, Orsland’s claim is contradicted by the fact that we have a copy of a signed, notarized contract between Girls Prep charter and the DOE, saying they will pay $1 dollar in rent for the space, and laying out other detailed provisions about their use.  Until recently, the boilerplate contract agreement for space for co-located charters was prominently posted on the DOE website.  

Orsland’s second argument was that even if the city recovered these funds, they would not necessarily be spent on new teachers or programs that benefit our children, and that instead, the DOE might spend the funds on more administrators or other priorities, so the parents’ claims of injury were hypothetical.  (This point was also made in the city’s brief and the affidavit of Sharon Olds of the DOE budget office.)  This led into his third point:  that parents have no standing to sue and no private right of action, and whatever financial arrangement exists is instead a private matter between the DOE and the charter schools, and “we think co-location is a good thing.”

The lead attorney for the charter schools, Andrew Dunlap from Kirkland & Ellis, chimed in that if charters had to pay rent, some of them might have to close or lay off staff.  These arguments were also made in the various charter affidavits, such as this one from DREAM charter director, Richard Berlin:

 “DREAM currently has a model that provide for two fully certified teachers per classroom, with teaching assistants for grades K-1.  DREAM would likely be forced to reduce leadership and instructional staffing, eliminating 4-6 full-time teaching position and 1 to 2 school leadership roles, destroying the DREAM teaching model parents sought to obtain by applying for a lottery pot at DREAM.”

A similar affidavit was filed by Ian Newton of the Explore Empower Charter school: that his school “has a model that provide for two teachers per classroom” and if forced to pay rent, they might have to “cut core teaching positions, increasing student-teacher ratio, and destroying the Empower teaching model…”

The charter attorney, Dunlap, also argued that if these schools closed, their students would shift back to DOE schools which would lead to “worse overcrowding.” (Why?  Not sure; each new school that is co-located exacerbates overcrowding, because of the need to duplicate administrative and cluster space.) He reiterated the city’s argument that the DOE might use the money for other purposes rather than hiring more teachers.  The Judge interjected that perhaps the funds could be used for school supplies, since the teacher’s choice program had been eliminated this year. 

Judge Feinman went on to say that “no one could argue that $100 million wouldn’t make a difference” in how the DOE provides resources to the schools, and if parents don’t have standing, who does?  Dunlap maintained that parents, students, and advocacy groups had no right to sue, since none of these groups are mentioned in the relevant statute.

In his final rebuttal, our attorney, Arthur Schwartz pointed out that it was specious to claim that the DOE could get around the law by saying they had no contracts with the charters; and that another statute says that charters may lease or own space, but nowhere is it mentioned that they can get space for free.  

Arthur also commented that while the charter directors complain that they might have to sacrifice their great teacher-student ratios or some of their other assets, this is exactly what has happened in our public schools.  Because of repeated budget cuts, public schools have been forced to eliminate teachers and raise class sizes for the last three year in a row, and have lost many valuable programs.  Finally, if DOE chose to provide more money in the form of cash to charters than the state-mandate formula prescribes, would they also argue that public school parents could not sue?  

Judge Feinman wrapped up at about 1:15 PM, by saying our case was “interesting” and raises “different issues.” He asked for final legal papers to be due in a couple of weeks.  At that point, presumably, he will make a determination about whether he would order a preliminary injunction (meaning charter schools would be asked to pay rent immediately), whether he would dismiss the case,  or whether it should go to trial.

It was a very fascinating couple of hours, and for me as a plaintiff, thrilling, since theoretically at least, we have an equal chance to win as DOE.  In court, only the law and the strength of our arguments rule, rather than the money and power of Bloomberg and the DOE, who are generally able to steamroll their policies over the vehement protests and opposition of parents, no matter how legitimate our objections.  

Also revealing, I thought, is how the city openly argued that they wouldn’t necessarily use the extra funds to prevent class size increases and to benefit our kids, but might spend it on more bureaucracy; and that parents have no legal standing to intervene in their decisions.  Let’s cross our fingers and hope that the Judge disagrees.

Thursday's arguments in our charter co-location lawsuit, & what Tisch and Klein said to Brill about this issue

Arguments in our  lawsuit vs. charter co-locations will be heard this Thursday, Sept. 15 at 10 AM ; 60 Court St,  2^nd floor, Judge Feinman’s courtroom. 

Please join us to show your support at our press conference beforehand and in the courtroom afterwards.

Where: the Plaza across from 60 Centre St., near City Hall, map here. 

When: Thursday, Sept. 15 at 9AM

What: Press conference before charter co-location court hearings

Class Size Matters, along with the Parents Union and several public school parents, sued DOE this summer to block their practice of providing free space and services to charter schools,  which we believe violates state law, and which has led to co-located charters receiving more per student public funds than regular public schools.  

The value of these services and space is estimated at more than $100 million annually, and the amount is growing every year.   

Moreover, the provision of free space has created a separate and unequal school system across the city, sparked divisive battles between parents and community members, and encouraged charter school expansion at the expense of our public schools.  For more on our lawsuit, see here.

In Steve Brill's new book, (see Diane Ravitch's brilliant review) Merryl Tisch, head of the NY Board of Regents, is quoted as arguing with Klein against co-locations, echoing a thought many of us have had:  "The charters are supported by billionaires.  Let them buy buildings."  But Klein remains adamant: 

"I got $250 million put into my capital budget in 2005-6 for the work necessary to do co-location," Klein recalls."But nobody noticed..."  Klein was facilitating the growth of these alternative schools at the expense of the schools he was in charge of.

In the book, Brill is admiring of Klein's strategy, while those of us who actually believe that it was his first responsibility to strengthen rather than undermine the public schools that he ran see this behavior as nothing short of horrifying. 

If we win this lawsuit, it will help put the brakes on those who are unfortunately still in charge, intent on damaging our public schools to benefit the billionaires, the privateers and their hedge-fund buddies.

Our side is represented by one public interest attorney, Arthur Schwartz of Advocates for Justice, while the other side is represented by the Corporation Counsel of NYC as well as an army of attorneys from three major private law firms, Kirkland and Ellis, Paul Weiss, Mayer Brown, representing charter schools, as  well as SNR Denton, representing the NYC Charter Center.

But we have right, as well as the law on our side.  Come join us and show you care.

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.