Federal court rules lawsuit vs Success charters can go forward as NYS admits overpaying them by $1.5 Million

Moskowitz and her family

This week, a federal judge in Brooklyn ruled that a lawsuit vs Success Academy could go forward to trial on behalf of some of the children who were on the "Got to go" list put together by the principal of Success Academy Fort Greene, Candido Brown.  These children were subsequently pushed out out of the school.The decision is here.  

While the school claims they simply made "errors in judgement," the practice of repeatedly suspending kids and calling ACS on their parents if they don't pick them up promptly in the middle of the school day is a common practice at Success, used to persuade parents to pull their children out of the school. Other methods commonly used by the school include calling the police to take unruly children either to the precinct house or to a hospital emergency room.

Here's an excerpt from the judge's decision:

Meanwhile,  NYSED reported today that last year it had overpaid charter schools and underpaid NYC from federal Title II funds.  The spreadsheet is here, revealing that Success charter schools were overpaid by $1.5 million; and NYC public schools underpaid by $7.1 million, which will only be repaid slowly over four years. 

The press release about the court decision is below.   

New York Lawyers for the Public Interest, Stroock and Advocates for Justice Win Decision in Case Against Success Academy Charter School for Discriminating Against Children With Disabilities

(New York , NY August 2, 2018) — A federal judge in Brooklyn has ruled that a publicly funded New York charter school network must face a discrimination case involving young children with disabilities.

The suit details how Success Academy staff placed children with disabilities, including the five plaintiff children, aged four to six at the time, on a “got-to-go” list. It describes how the charter school imposed a disciplinary code that included early-morning suspensions for fidgeting or grimacing and calling police on a six-year-old who had a tantrum.

Success Academy , which conceded that the “got-to-go” list existed, argued that the charter school was improperly sued for discrimination and that the case shouldn’t be allowed to proceed.

The strongly worded August 1 ruling from the Eastern District of New York noted that the school “runs a strict disciplinary system, ” and “requires the students to always be on task,” and that “teachers use stopwatches to script the school day, and students must carry ‘air bubbles’ in their mouths when walking from class to class so they do not speak to one another.” The suit alleges that this system was used to push the five children out of Success Academy by subjecting them to “zero-tolerance” discipline.

The children and their parents are represented by nonprofit civil rights law firm New York Lawyers for the Public Interest, pro bono counsel from Stroock & Stroock & Lavan LLP, and Advocates for Justice.

Irene Mendez, staff attorney with New York Lawyers for the Public Interest, said: “Instead of helping them, Success Academy systematically drummed out three children with disabilities and two who showed signs of having disabilities. They targeted kindergartners and first-graders for removal by putting them on a ‘got-to-go’ list. They sent a first-grader to St. Luke’s psychiatric ward just because he had a tantrum, and suspended these very young children for minor things like fidgeting, or even for being slow to complete their work. Then they brazenly tried to claim that these children had no case.”

Kayley McGrath, an associate in Stroock’s Litigation Group, noted: “Success Academy’s rigid enforcement of its militaristic disciplinary code sent a clear message to these families: ‘You are not welcome here.’  Unlike Success Academy, Judge Block’s decision refused to cast them aside.”

Laura Barbieri, of counsel to Advocates for Justice, said: “ We have been attempting to address the disregard Success Academy has for children with disabilities, ever since their rapid expansion began in 2012. This decision could mark a turning point; parents whose children have been mistreated should now have a roadmap to getting redress. Success owes a lot to the children they abused. And Judge Block has opened the door to a remedy. ”

Copies of the ruling are available at www.nylpi.org<http://www.nylpi.org> .

About New York Lawyers for the Public Interest (NYLPI)

Founded more than 40 years ago by leaders of the bar, New York Lawyers for the Public Interest pursues equality and justice for all New Yorkers. NYLPI works toward a New York where all people can thrive in their communities, with quality healthcare and housing, safe jobs, good schools, and healthy neighborhoods. In NYLPI’s vision, all New Yorkers live with dignity and independence, with the resources they need to succeed. NYLPI’s community-driven approach powers its commitments to civil rights and to disability, health, immigrant, and environmental justice. NYLPI seeks lasting change through litigation, community organizing, policy advocacy, pro bono service, and education.

NYLPI has a long history of fighting for New Yorkers with disabilities since its founding, including for access to the criminal justice system. NYLPI brought and won the first case under the Americans with Disabilities Act (ADA) in 1992, enabling people with disabilities to gain access to the observation deck of the Empire State Building . Recent successes include a landmark suit which resulted in improved access to paratransit services for people with disabilities who are limited English proficient.  For more information, please visit www.nylpi.org<http://www.nylpi.org> .

About Stroock & Stroock & Lavan LLP

Stroockprovides strategic transactional, regulatory and litigation advice to advance the business objectives of leading financial institutions, multinational corporations and entrepreneurial businesses in the U.S. and globally. With a rich history dating back 140 years, the firm has offices in New York, Los Angeles, Miami and Washington, D.C.
Stroock’s Public Service Project (PSP) is the cornerstone of the firm’s longtime commitment to serving the public interest: pro bono publico. Launched in March 2001, the PSP provides a broad array of legal assistance, concentrating on underserved, under-resourced communities in New York City. For more, visit www.stroock.com<http://www.stroock.com> .

About Advocates For Justice

Founded by Arthur Z. Schwartz in 2011 as a public interest organization, A4J grew from his 35-year history as a civil rights lawyer whose work focused largely on protecting workers from employment discrimination and violations of free speech. A4J has had an extensive docket of Education Law cases since its inception, and has focused its work on protecting children with disabilities, and parents fighting for more space and a more open process in the NYC public schools. For more information visit http://www.advocatesforjustice.net/

Resist privatization! presentation tomorrow in Westchester, Education Justice marches and great debate on charters

1.     Leonie Haimson will be speaking on the national and state push to privatize public education tomorrow Saturday, March 4, 2017 at the Westchester-East Putnam PTA Advocacy Breakfast. The event is free; just RSVP to magerbxv@gmail.com

What: Westchester-East Putnam PTA Advocacy Breakfast
Where: The Education House, 5 Homeside Lane, White Plains, NY
When: Saturday, March 4, 2017, begins at 8:30 AM; I will be speaking at about 10 AM.

2.       There is also a People March for Educational Justice happening tomorrow Saturday in NYC and throughout the state.   Governor Cuomo has proposed a terrible budget that essentially eliminates foundation aid after this year – which was created after the CFE lawsuit to make education funding more equitable and send more resources to high-needs districts. His budget would also significantly increase funding to charter schools and raise the charter cap in NYC, as well as make NYC pay more for charter school rent or force us to squeeze even more charter school students into our already overcrowded school buildings.

NYC already pays over $1.7 BILLION annually to charter schools, and over $40 million a year for their rent. To spend any more would be a supreme hardship and would drain even more funds from our public schools. Meanwhile, it was announced today that Success Academy charters is renting Radio City Music Hall for their annual test prep rally, and last year spent over $68 million for their new headquarters in Manhattan.

For more information on when and where to meet across the state to March for Educational Justice and against privatization, please check out http://www.aqeny.org/march/ In NYC, the march starts in front of Trump Hotel at Columbus Circle at 9:30 AM.

3. On Wednesday Leonie had the pleasure of attending an IQ2 debate on charter schools. Please check out the video here and below.  The debaters included Gary Miron, Professor in Evaluation, Measurement, and Research at Western Michigan University and Julian Vasquez Heilig, Sacramento State Professor and a founding Board Member, Network for Public Education vs. Jeanne Allen, CEO of The Center for Education Reform and Gerard Robinson, Resident Fellow, AEI & former Florida Commissioner of Education.

The proposition under debate was whether charter schools are overrated.  The audience members voted at the beginning and the end.  After the debate was over, 21% changed their mind to agree with the proposition compared to 9% changed their mind in the other direction, for a total of 54% to 40% who now believed charters were overrated. More on the debate here and here.  Please watch if you have the time to see if you will change your mind!

Funny if it weren't so sad: SUNY charter committee switches location of Success charter and switches it back

After the rally protesting the vote by the SUNY charter committee to approve 17 new charter schools for NYC-- including 14 more for Success Academy, despite the fact that two thirds of their schools are already underenrolled, a representative from the city told us that at the last minute Eva Moskowitz decided to switch the location for one of her charters from District 2 to District 1 or District 6, and the SUNY committee had approved this change.

Susan Miller Barker, Joseph Belluck and Ralph Rossi

This appalling practice is not all that surprising, given the way SUNY approves whatever Eva Moskowitz wants.  They allow her charters to repeatedly expand, despite the fact that she fails to enroll and retain equal numbers of high-needs students, which is required under the charter law and in fact, pushes out at risk kids with stunning regularity.  The committee also approved a stunning 14 more charters despite the public comments were overwhelmingly against allowing these charters to go forward.

You can see the tepid discussion of the last-minute switch and vote by the charter committee to approve it at about 30 minutes in a video of the meeting at the SUNY website.  You can also see that the committee members did not mention any of the public comment, or even appeared to have bothered to have read the summary beforehand.

The three members of the committee are Joseph W. Belluck,  the chair, Angelo Fatta and John Murad; two lawyers and a retired corporate executive, none of them with any background in education. Also present sowing more confusion in their wake, were Susan Miller Barker, the head of the SUNY Charter Institute, and the Counsel Ralph Rossi.

Understandably, parent leaders from District 1 and 6 and their elected City Council Members were quite angry that there were no hearings or outreach in their districts before this vote.  Despite the fact that SUNY considers this a "non-material" change -- switching the charter from one end of Manhattan to another -- it makes hash out of the public process, including district hearings, required by the law.  Few would argue that Washington Heights and the Lower East side are the same in terms of student population as the more middle class areas encompassed by District 2.   So these elected leaders, including Councilmembers Chin, Dromm, Mendez and Rodriguez , along with the presidents of Community Education Councils in Districts 1,2, and 6, wrote a letter to the SUNY board President Carl McCall, which is below, saying that their practice of switching districts and ignoring public input at the last minute reveals their "extreme and marked disregard for a transparent, democratic process."  Here's an article in tomorrow's Daily News about the letter and the anger aroused by this switcheroo.

Meanwhile, the NY Times had reported earlier that SUNY had not made any changed but had approved the charter for District 2, as earlier planned: "The new Success charters are approved for Districts 2 and 3 in Manhattan; 9 in the Bronx; 13, 14, 15, 17, 18, 22, and 23 in Brooklyn; and 24, 27, 28 and 30 in Queens."

I contacted the reporter, Liz Harris, who assured me that SUNY had told her that there was no such change and that the school had been approved for District 2, though this might later be changed if Eva wanted.  They told the same to the DNA Info reporter, who posted a correction to an earlier article that had reported on the last-minute switch:

However, SUNY did not allow Success Academy to change its application, said a spokesman. Instead, it approved its District 2 charter “after undergoing the legally required process, including a public hearing,” he said.“The Institute was notified that Success may pursue alternative arrangements in Districts 1 or 6, an adjustment which, for a variety of reasons, is not uncommon for a charter school,” he said in a statement.
“Should they follow that course, under the law and well established practice the Institute can amend the charter accordingly, and there will be a process for additional public input.”

But as the DNA info story noted, SUNY posted the following document tonight, showing the charter had  been moved to District 1 or 6 after all.  Check out the time stamp of 6:25 PM.

CM Chin saw the new document and tweeted it:

Now SUNY claims it didn't approve a Success charter for District 1 or 6. Let's look at the list of approved charters: http://t.co/XY6RotMhAV
— Margaret S. Chin (@CM_MargaretChin) October 14, 2014

Apparently noticing the article or CM Chin's tweet, someone at SUNY Charter Institute took down the document and revised their version of reality once again -- that the switch to District 1 or District 6 had not occurred after all:

It would all be a comedy of errors if it weren't so terribly sad.

Who knows what happened and how many ways back and forth the truth was revised? The indisputable reality is that these three men make such consequential decisions by authorizing and randomly siting 17 new charter schools,  in such a cavalier fashion, without any knowledge or apparent interest in the views of the community or impact on their schools, and our public education system as a whole. 

Oct 14 Letter to SUNY protesting last minute switch to1/D6 Re protesting last minute switch to1/D6 Re Success by leonie7851

Egregious distortions in NYT article on Success Charters, say parents, teachers & journalist

This Sunday’s NY Times featured an outrageously one-sided article on Success charters.  It is not the first.  One remembers the Steve Brill article from 2010 on Harlem Success Academy which was so similar in tone that I had to keep checking to see that this was not the exact same piece.

The Brill article was replete with many factual errors – claiming that the high-performing students at Success charters were exactly like those as the public schools with which it shared space, even though that was a clear falsehood that any reporter or editor could have checked if they had bothered to look at the data.  This time, the reporter Daniel Bergner admitted that the type of students enrolled may be different, writing in an offhand manner:

On the topic of scores, the U.F.T. and Ravitch insist that Moskowitz’s numbers don’t hold up under scrutiny. Success Academy (like all charters), they say, possesses a demographic advantage over regular public schools, by serving somewhat fewer students with special needs, by teaching fewer students from the city’s most severely dysfunctional families and by using suspensions to push out underperforming students (an accusation that Success Academy vehemently denies). …. But even taking these differences into account probably doesn’t come close to explaining away Success Academy’s results.

Though he mentions that critics cite demographic differences, he doesn’t bother to report the data himself and discounts their impact.  He completely brushes off the higher suspension rates, by saying that Success denies it, but these are well-documented and a Legal Aid attorney argues their practice is illegal. Even the SUNY charter institute, a creature of  the charter lobby, has criticized Success Academy suspensions in documents available online – none of which the reporter mentions, because it is only “critics” who claim their reality.

Bergner only quotes two critics: UFT head Michael Mulgrew (who he depicts as self-interested) and Diane Ravitch, though he left out most of what she said.   At the Huffington Post, Diane Ravitch points out that she told him the following – all left out of his article:

“The only Success Academy school that has fully grown to grades 3-8 tested 116 3rd graders but only 32 8th graders. Three other Success Academy schools have grown to 6th grade. One tested 121 3rd graders but only 55 6th graders, another 106 3rd graders but only 68 6th graders, and the last 83 3rd graders but only 54 6th graders. Why the shrinking student body? When students left the school, they were not replaced by other incoming students. When the eighth grade students who scored well on the state test took the admissions test for the specialized high schools like Stuyvesant and Bronx Science, not one of them passed the test.

I also told Bergner that Success Academy charters have among the highest rates of teacher turnover every year, which would not happen if teachers enjoyed the work. Helen Zelon wrote in "City Limits": "In Harlem Success Academies 1-4, the only schools for which the state posted turnover data, more than half of all teachers left the schools ahead of the 2013-14 school year. In one school, three out of four teachers departed." I also told Bergner about a website called Glass Door, where many former teachers at SA charters expressed their candid views about an "oppressive" work climate at the school. As more of these negative reviews were posted, a new crop of favorable reviews were added, echoing the chain's happy talk but not shedding light on why teachers don't last long there. … He did not think it mattered that none of her successful eighth grade students was able to pass the test for the specialized high schools, and he didn’t mention it in the article. Nor was he interested in teacher turnover or anything else that might reflect negatively on SA charters. “

Not only did the reporter ignore all this negative evidence, he even misquoted her, which Diane had to correct when the editor called her to check:

"For example, he quoted me defending “large government-run institutions,” when what I said was “public schools.” He was using SA’s framing of my views.”

This phraseology “large government run institutions” is a dead giveaway of the reporter’s strong biases: it not just the charter lobby’s framing, it comes right of conservative talking points.  Public schools are described this way by Rick Santorum and the like, rhetoric designed to convince people to oppose them.

Other signs of the purposeful distortions and omissions in this article are when Bergner claims that de Blasio “inexplicably” opposed the expansion of Harlem Success 1 at PS 149.

Actually, the explanation de Blasio provided was clear – that the charter’s expansion would necessitate the displacement of 20 percent of the severely disabled students at the Mickey Mantle school in the same building.  Clearly Bergner knew this as he interviewed Mindy Rosier and other teachers at this school; as Rosier explains in a comment to the article:

“I did not bash Moskowitz, but what I did tell him as a teacher in a co-located school with her, all the things that has happened in the last 8 years. I told him story after story. All verifiable but unfortunately hidden from the general public. He made points about deBlasio denying her space though he did not truthfully tell you all why. Moskowitz wanted to expand in a building with no free space. Her expansion would have kicked out a special needs school. Over 100 special needs students from the Harlem community and surrounding areas. deBlasio was trying to save that school and he said several times that he did NOT want those students displaced. …Those $6 million ads were basically supporting a special needs school to be kicked out of its own space for her expansion. “

Nor did Bergner quote a single public school parent.  He repeats the canard that Moskowitz always proclaims, repeated without evidence by Steve Brill and other propagandists, that the opposition to Success expansion was driven entirely by the UFT – here’s his quote:

… almost always the proposed arrival of a Success Academy has met with hostility: union members bused in by the U.F.T. to pack community meetings, people heckling and spitting at Moskowitz….

I have attended many public hearings but I have never seen anyone spit at Moskowitz; in fact she rarely shows up for them.  And there is no need for the UFT to provide busing to “pack community meetings.” Anyone who talked to any public school parents or attended any co-location hearings or read the extensive public comments online at the DOE website would know that nothing provokes more fury among parents than the prospect of co-located schools, exiling their children from their classrooms, their art rooms, their science labs and gyms.  Not to mention huge anger from former Success parents, whose children have been pushed out of her schools.

From Noah Gotbaum, parent leader in District 3 where many of Moskowitz’ charters are located:

“Bergner also had information from current and former Success parents about the winnowing and forcing out of low performing students.  Also of Moskowitz's "banning" of parents and suspension of students who in any way question the administration and a general disaffection by current parents.  He just chose not to use it.

A few weeks ago I spoke with him and suggested people for him to speak with including public school parent leaders - who have led the charge against the Success colocations. He told me that he needed to finish the piece and already had had "long interviews with 50 supporters and critics".   Seeing this piece it's now worth asking who are those critics (besides Diane and Mulgrew) and why didn't he include their voices or any of the info they provided?

The Times should be skewered for this.  But they won't be.”

Nor did the reporter bother to investigate how overcrowded our schools already are.  Instead he writes:

“The public schools — with the United Federation of Teachers spurring the fight — have protested that sharing space causes overcrowding, though in theory charters have moved in only where enough rooms were available.”

This is completely untrue.  In fact, nearly half of the recent co-locations pushed through by Bloomberg, including Harlem Success academy co-location, would have put the school building above 100% capacity, according to the DOE formula – a formula, by the way, that most experts believe understates the actual level of overcrowding in our schools.

Below are comments from Gretchen Mergenthaler, a public school parent in Washington Heights:

“I am tired of the focus in the media on Eva and deBlasio and I am tired of Eva's expensive advertising campaign.

In my district, District 6, the CEC (parents elected by parents) passed a resolution saying that District 6 did not want more charters but wanted more support for our existing schools so they could expand, provide more enrichment, smaller class size and better teacher support. But Eva got what she wanted: a free building in our district. Our kids are in trailers while Eva gets a new building.

The CEC was not consulted about the imposition of an SA in our district (no big surprise). The community was not consulted!! SA paid people to hand out applications to make it appear as if there were demand.

I have not met one CEC president who has said that they want more charters. I was told by a CEC president that at the citywide CEC presidents meetings with Chancellor Fariña, no one has ever asked for more charters. NO ONE.

The NYT should be covering the real story.”

The following is from Gail Robinson, an experienced editor formerly at Gotham Gazette, now a freelance reporter for InsideSchools and City Limits:

"This article would have been less flawed/irritating if it did not claim to be a discussion of the battle over NYC schools. What it really is a puffy profile of Eva.

But it's disconcerting that the reporter (if one can call him that) did not attempt to verify anything independently. Figures on attrition of staff and students are a few clicks away on the NYS education department site, as are statistics on number of English language earners and students with special needs in any school.

The author did not seem to have visited many/any co-located schools or bothered to investigate the specific reasons Carmen Farina originally rejected the three proposed co-locations last school year. He also did not say that some other charter operators co-locate in a more cooperative spirit and that relations between co-located schools can be harmonious if the adults try to make it that way.

Finally the writer did not look at how much money Success Academy has. The recruiting efforts and many of the special features (technology, a special room for blocks at the Williamsburg school, a trip to Albany for all students, etc.) are beyond the budgets of many public schools, which do not get the kind of donations Success does. Parent, naturally, are delighted by those frills -- and few care where the money comes from as long as their child benefits. That's understandable. But that fact cannot be ignored in any kind of policy discussion. If regular district schools had the resources some charters do, what could those schools do?

There are lots of bad writers and reporters out there but I wonder what is going on at the NYT when it seems to require less of its writers than I do of my high school journalism students.”

Charter school expansion in NYC: common ground or battleground?

Past ads for Eva's charters ((DNAinfo)

According to today's New York Times, the Gates Foundation is giving $25 million to seven cities, including NYC, to encourage charter-district “collaboration.” The Gates spokesperson claims, “It’s pretty clear there is more common ground than battleground.”  Of course, the pro-charter, pro-privatization Gates people would like to convince NY Times readers and the public at large that this is true.

Unfortunately, the Times reporter did not feature any quotes from New York City parents or advocates who might have a different perspective.  

From today’s Daily News, the relationship seems like a battleground still; though one in which the charter schools get preferential treatment from their patron, DOE.  Eva Moskowitz demands science labs for all her Success Academy charter elementary school kids; but  at-risk HS students will lose their science lab as well as their gym in the Brandeis HS building because she wants to expand her school into their territory. As a result,  students from the Diploma Plus High School are being pushed out into a leased building in Washington Heights without these facilities.

Truly, the situation in NYC is like a “Middle East war” as Eva herself put it years ago, saying "Dividing land ain't pretty”.  Especially when like Eva, you have unlimited resources, political pull, and ruthless expansionism in your sights.