Parents & Class Size Matters file legal challenge to DOE plan to place students in online classes without parent consent

  On June 12, Class Size Matters and four parents launched a legal challenge to the DOE guidance on online learning.  See our press release, the legal papers, and articles in the Daily News and Politico.  Listen also to my interview on last night's Talk out of School, with attorney Laura Barbieri and two of the plaintiffs, teacher and parent Amanda Vender, and Tanesha Grant, parent and founder of Parents Supporting Parents NY.

While the state regulations approved by the Board of Regents on April 28, 2024 clearly require parent consent before a student can be assigned to an online class, the DOE guidance sent to school administrators two weeks later says that while schools should try to obtain parent consent, they can "program students for virtual/blended courses in STARS in anticipation of getting back Parent Opt-In Forms…. The student may remain in the virtual/blended course in accordance with the school’s existing add/drop policies or until the parent declines to have their student participate in the virtual/blended course, whichever occurs first."  

Clearly, this is not parent consent but parent opt-out, a much weaker procedure that is non-compliant with the regulations.  And as several parent plaintiffs pointed out in their affidavits, given how haphazard and inconsistent communication with families is at many schools, many parents may not even become aware to the  fact that their children have been assigned to online classes until it is too late to pull them out.

According to the UFT contract, teachers also have to consent to teaching a remote class before they can be assigned to one, but many are apparently unaware of this fact. Instead, at least some principals are making these decisions without conferring with either teachers or parents.  For example, a high school teacher told me that his principal  applied to DOE to  hold all classes remotely on Fridays, without polling him or other teachers first to see if they had agreed to this.

I urge all parents to immediately ask their principal if there is a plan to hold online classes next year, and if so, if they will obtain parental consent before assigning their children to these classes. Parents should also contact your School Leadership Team to see if they've discussed this matter, and if online learning is being adopted, ask if that is part of the school's Comprehensive Education Plan that all SLT members must consent to.  Teachers should also ask these questions, and  understand their right to refuse to teach online classes, according to the UFT contract.

As is obvious to nearly everyone, online learning during the pandemic seriously failed the great majority of students.  Many fell behind academically, became disengaged, and suffered mental health challenges as a result.  The fact that DOE has proposed to expand online learning as part of their plan to comply with the class size law rather than building enough additional classroom space is especially unacceptable - as remote classes will likely undermine any of the benefits that smaller classes would otherwise be expected to provide.

Yet during his campaign,  more than a year before the class size law was passed, Eric Adams proposed expanding online learning in February 2021, an idea which met with much controversy and even some ridicule.  While both he and the Chancellor now admit that no other large district in the nation is considering such a move, they point to this as a matter of pride, rather than acknowledging that perhaps others learned important lessons from the pandemic that they are resistant to learning for some reason.  

When Adams announced the new UFT contract in 2023 that allowed for the expansion of online learning, he said “Look, you all aren’t going to appreciate what I’m doing until I’m done. You are going to look back and say this guy was just ahead of what other people want. This is New York – we lead from the front...”   

Chancellor Banks proclaimed that this is "not just a reimagined experience for kids, it's a reimagined experience for teachers as well... when you want to really focus on how to make the profession respected at an even higher level, you have to engage in new and creative ways for teachers to even be able to teach. And I think that this is 21st-century thinking. We're the first major school district in the nation that is even taking this on."

If Adams and Banks are stubbornly resistant to understanding how virtual learning risks severely undermining the quality of teaching and learning in NYC schools, it must then be the responsibility of parents, educators and  advocates to do what we can to stop this runaway train.

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.

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.