Judge Frank's decision to reject the lawsuits to block the damaging co-locations of charter schools and re-locations of transfer schools

Sadly, on Friday, Judge Lyle Frank ruled against the lawsuit to stop two Success charter school co-locations and the relocation of two transfer schools.

 Here is the Daily News story on these decisions; here are previous blog posts about the lawsuits, which were based primarily on the fact that the Educational Impact Statements required by state law omitted critical information, such as whether the existing schools would have the space to lower class size  in the future to the levels mandated by state law.  

Moreover, the EIS's never mentioned the loss of other critical space and services that these students would suffer, such as the loss of their science lab by Waterside students, and the loss of the GED program and LYFE day care center by the  students who are young parents at West Side HS, not to mention in both cases the space to lower class size.

The Judge's decision was quite narrow -- simply that the plaintiffs should have gone to the Commissioner first with their complaints, even though this was a matter of statutory interpretation that could be seen as subject to the court's jurisdiction.  In fact, there was a precedent for this: in a previous decision by Judge Lobis in 2010, she had thrown out several DOE decisions to close schools on the basis of inadequate Educational Impact Statements -- including their failure to mention how students would lose their LYFE day care center: 

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 (L YFE) Center, no mention was made of that program, or where a similar program existed in other city schools.

Meanwhile, the powerful and wealthy networks that will benefit from his decisions, Success Academy and The Young Women's Leadership School, are the beneficiaries of millions of dollars contributed by billionaires, and could have easily afforded to lease their own buildings without any help from DOE and without depriving NYC public school students of these critical resources and space.  

TYWLS, founded by Ann Tisch of the billionaire Tisch family, recently received a $7 million grant from Mackenzie Scott.  Success Academy's wealth is well-known, having received $100 million from Bloomberg and many more millions from hedge funders and the federal government.

The students at Waterside are suffering a double whammy - not just losing their space but their principal as well, who has been offered another job by DOE.  The parents at Waterside hadn't even been informed of her departure when I told the PTA president about this on Friday. She confirmed the information in the article that only a small fraction of the middle school applicants had been accepted for the upcoming year.  As the former PTA president said to the reporter,  “I honestly feel like our district wants to get rid of Waterside Middle School but doesn’t want to directly tell us.” 

This suggests that DOE may plan to shrink the school  into nothingness so as to be able to give over the entire building to Success Academy.

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.

City strikes out so far in legal pleadings over budget cuts; freezes budgets & then unfreezes them; while at least 700 teachers have been let go.

Check out more about the lawsuit on this week's Talk out of School podcast, as explained by attorney Laura Barbieri and me, and two of the plaintiffs, Tamara Tucker and Paul Trust, hosted by Daniel Alicea.

The City has engaged in much legal wrangling, all unsuccessful so far, since Judge Lyle Frank granted a temporary restraining order against the school budget cuts last Friday, July 22 in  the lawsuit Tamara Tucker et.al. vs the City of NY, filed by parents and teachers on July 18. 

The City's  attorneys  asked the Judge for permission to file papers to vacate the TRO, and they submitted their papers on July 25, with the petitioners filing theirs on July 26.  The Judge turned down the City's request to reverse the TRO the next day, on July 27.

Then the City submitted an appeal to the Appellate Court to nullify Judge Frank's court order.  They actually filed two requests as the first one was incorrect on the proper procedure, along with more affidavits and yet another Memo of Law.  Brief oral arguments were heard at 12:30 PM yesterday, Friday, July 30.

What's peculiar is that at about the same time that oral arguments were being heard by the Appellate Judge, the DOE new COO, Emma Vadehra, sent an email to Superintendents that the DOE was shutting down their access to their schools' Galaxy budgets:

The reaction was fast and intense.  Principals expressed outraged that they couldn't access the budget lines to order books and plan programs.  Advocates and parents pointed out that the freezing of school budgets was totally contrary to what the court had ordered -- that no more cuts should be made to school budgets and that the budgets would be based on this year's spending levels, until the Judge could hear the case on August 4.  

Clearly, this was an attempt by the City to manipulate the Appellate court and/or the court of public opinion that the chaos and disruption that DOE claimed over and over again in its court documents was indeed occurring -- even though this was the result of the City's actions not the TRO.

In any case, at 3:30 PM, the Appellate Court Judge Bahaati E. Pitt, rejected the City's request to vacate the TRO.  

Meanwhile, the outrage only grew at the DOE's refusal to allow principals to access their budgets.   Laura Barbieri, the attorney for the plaintiff asked me to post the following statement on Twitter:

At some point, either late in the afternoon or into the evening, after a rash of negative articles and angry tweets, the City finally realized that the smoke and mirrors they had hoped to accomplish with the budget freeze hadn't worked.  At about 9: 25 PM last night, the Chancellor sent out the following email:

The Chancellor made no explanation of why this freeze had been imposed in the first place, or had now been ended.  In fact, there were no changes in the law or orders of the court since Judge Lyle Frank made his original decision to accept the Plaintiff's request for a TRO the week before.  Moreover, Banks erred in saying that "the appeals court has scheduled a further hearing on our motion" to vacate the TRO, as no such hearing has been scheduled.  

All the Appellate Judge did, as is standard procedure after rejecting the City's appeal, is to state that they can now try again by appealing her judgement to the full Appellate Court on August 5 if they insist--  which is after the August 4 date when Judge Lyle Frank will hear both sides' arguments in the Supreme Court.  

A lot of confusion for nothing and now the city has struck out four times; twice by Judge Frank and twice  -- for each of their appeals -- by Judge Bahaati E. Pitt.  It's not looking good for their side.  Most all the legal papers are here.

What's rather damning is that among the literally hundreds of pages of legal documents that the city has filed, nowhere do they actually contest the central claim of the lawsuit -- that the adoption of the education budget was done in a manner contrary to State Law, with the City Council voting before the Panel for Educational Policy (still known as the Board of Education in state law.)

Meanwhile, a DOE document was leaked on Friday, showing that at least 700 teachers have been excessed so far as a result of the budget cuts, which means they have been told by their schools that they are being let go. The NY Post wrote about this late Friday here.  

The full DOE powerpoint is below; and contains a lot of confusing data in an apparent effort to convince whoever saw it that many of these teachers will be hired elsewhere.  

It does show that over the last couple of years, the number of excessed teachers entering the Absent Teacher Reserve (ATR) pool has shrunk.  Yet that is likely a result of the fact that for the last two years, the DOE told principals they if they hired these teachers, the DOE would cover their salaries centrally.  As Deputy Chancellor Weisberg said at the June 28 Council hearings, and confirmed in this document in the final slide in a somewhat garbled manner, that is no longer the case.  

Since the vast majority of schools have seen their budgets cut significantly, it is likely that the ATR pool will sharply increase once more, as it did during the Bloomberg/Klein years.  Since all these teachers will receive their full salaries anyway, the question remains what actual savings these egregious cuts at the school level will  achieve.