Our class size lawsuit argued in the Appellate Court yesterday!

Plaintiffs in the lawsuit along with Sen. Robert Jackson and attorney Wendy Lecker

Yesterday, the class size lawsuit against the city and the state that we filed more than a year ago, along with nine NYC parents from every borough and the Alliance for Quality Education, was heard in the Appellate court in Albany.

Our pro bono attorney, Wendy Lecker of the Education Law Center, did a fabulous job, those of us in the courtroom agreed, which included two of the parent plaintiffs in the lawsuit, Litza Stark of Queens and Johanna Garcia of Manhattan, along with Johanna’s daughter Hailey, back from her first semester in college. NY Senator Robert Jackson, who spearheaded the Campaign for Fiscal Equity case, was also there to support us, as well as retired teacher Norm Scott.

A panel of five judges listened intently as Wendy related how the NYC Department of Education had violated the state Contracts for Excellence law passed in 2007, which specifically mandates that the city lower average class sizes in all grades over five years – but instead, class sizes had sharply increased so that they are now far larger than they were when the law was first passed.  In response, the attorneys for the city and state tried to argue that since the five years outlined in the original law had lapsed, there was no longer any requirement for the DOE to lower class size.

Yet as Wendy pointed out,  the state legislature renews and reauthorizes the C4E law every year, including its class size mandate, with no specific end point for when the city’s obligations would cease;  thus this is indeed a continuing requirement on the part of the DOE.

The attorneys for the city and state also claimed that the court has no jurisdiction over this matter, but that the Commissioner of Education has the sole power to determine whether the city had adequately complied with the law.  Yet as Wendy counter-argued, the court indeed has the authority to decide whether the Commissioner has accurately interpreted the language of the statute, and the court's authority to do so in regards the C4E law was specifically re-confirmed in 2011 by the Appellate judges in 2011. By essentially nullifying the city’s class size obligation under the law, Wendy said, the Commissioner had essentially usurped the legislature’s role.

Though one cannot predict how the court will rule, those of us in the room felt that Wendy’s arguments were far stronger than those of the city or state attorneys, who did not even try to dispute the facts in the case: that class sizes had increased sharply since 2007, and this had unfairly deprived NYC students of an quality education. 

In any event, the Appellate Court will likely not issue any decision until this summer at least, and we are not content to sit back and wait for this to occur.  Instead, we are urging the Mayor and the Council to put a down payment on the quality of our children’s education by allocating specific funding for class size reduction, starting next year in the early grades and in struggling schools.  More on how you can help with this soon.

Breaking: Our class size appeal will be heard on Jan. 13 in Albany!

Big news just announced today: Our class size lawsuit vs NYC and NY State, Agostini vs. Elia, will finally be heard on Monday, January 13 at 1 PM in the Appellate Court in Albany.

Last spring, May 23, 2019 , attorney Wendy Lecker of the Education Law Center filed our appeal on behalf of nine NYC parents, Class Size Matters and the Alliance for Quality Education.  We sued the State Education Commissioner and the Chancellor, and urged the Appellate court to order the NYC Department of Education to reduce class size in all grades as the Contracts for Excellence law requires. 

Our original lawsuit, Agostini vs. Elia, was filed in April 2018 when then-NYS Education Commissioner Elia refused to take action to enforce the Contracts for Excellence law in response to our original complaint.  

The C4E law was first approved in 2007 and required NYC to lower class size; instead class sizes increased sharply and remain at levels far higher than when that law was passed.  

Yet in December 2018, Acting Supreme Court Judge Henry Zwack ruled against us in a skimpy decision that engaged with neither the law or the facts of the case; instead he claimed that this was merely a matter for Commissioner Elia to decide.  

Commissioner Elia had argued that any class size obligations on the part of the DOE had lapsed years ago. Yet as our appeal points out, if the Legislature wanted to eliminate this key legal obligation on the part of the city they would have done so, rather than renewing the provision every year.  Thus, the DOE's failure to lower class size is a continuing violation of law, and since the State Education Department has refused to hold city officials accountable for providing students with their constitutional right to a sound basic education, which includes smaller classes according to the Court of Appeals in the original CFE lawsuit, we have been forced to do so instead.

Unlike Judge Zwack, the Appellate Court has asked for copious back-up data on class sizes in NYC schools, which as the above charts make clear, have indeed risen dramatically since 2007.  Hopefully, that means these judges are engaged in the issue and will base their judgement on facts rather than the city's wishful thinking.

Talk of out School - join us next Wed. on WBAI at 10 AM with Wendy Lecker and Senator John Liu

Next week on Wednesday Sept 18 at 10 AM, I will have two guests, "Talk out of School": attorney Wendy Lecker of the Education Law Center, who will bring us up to date on the class size lawsuit of on nine NYC parents vs the state and city of New York for their failure to lower class size.

My other guest will be  Senator John Liu, chair of the NYC Education Committee in the State Senate, who will tell us what new laws, funding levels and other developments we may expect in the coming legislative session that affect our public schools. I always find what goes on in Albany to be very mysterious - hopefully straight-talking Senator Liu, who was formerly a City Council member and NYC Comptroller, will help us undo some of that mystery.  Please listen in at 99.5 FM or at wbai.org and call in at 212-209-2877.

Also, if you haven't yet, please check out our first show from last Wednesday, co-hosted with Carol Burris.  We focused on the diversity and integration proposals of the School Diversity Advisory Group, with guests Shino Tanikawa of the SDAG, and Alex Rodriguez and Tiffani Torres of Teens Take Charge.  You can livestream or download the program here.

Shino and co-host Carol Burris at the WBAI studio - check out the words on the wall we aren't allowed to say on radio.

NYC Parents file legal complaint to force Mayor to reduce class sizes

Update (7/20/17 : Lindsey Christ of  NY1 just ran a segment on the complaint here: Here's how parents aim to reduce class sizes of city public schools.

Yesterday, nine NYC parents from every borough of the city plus the Public Advocate, Class Size Matters and the Alliance for Quality Education filed a complaint with the NYS Education Department to require them to force NYC to reduce class size and comply with the Contracts for Excellence (C4E) law.  Articles about our complaint were published in the Daily News: Growing class sizes at city schools break state law and provide 'second-rate education,' advocates charge; and WNYC Schoolbook: Parents Push NY to Enforce Smaller Class Size Law,   
Queens Chronicle: Obey the Law, School Parents Tell City DOE. 

The reality is that since the C4E law was approved by the NY Legislature in 2007, class sizes have substantially increased with the sharpest increases in grades K-3, where the research is crystal clear that small classes makes a dramatic difference in children's ability to learn, especially for low-income students of color, English Language Learners and kids with special needs, which make up the majority of students in NYC public schools.

In fact, the number of children in grades 1st through 3rd in classes of 30 or more has risen by an incredible 4000% since 2007.  It is both unethical and illegal that Mayor de Blasio and his Chancellor Carmen Farina have refused to reduce class size -- even though de Blasio promised to do so when he ran for Mayor in 2013.

The press release is here and below.  The legal complaint is posted  here .  A timeline documenting the DOE’s failure to reduce class sizes since the CFE lawsuit is available here; and more data showing class size trends is available here.   

Much thanks to the nine parent plaintiffs, Public Advocate Tish James and AQE, for joining the legal complaint,  Bronx Borough President Ruben Diaz Jr. for his support, and attorneys Wendy Lecker and David Sciarra of  the Education Law Center, who are handling the case pro bono.

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For Immediate Release:  July 6, 2017

Contact: Leonie Haimson, Class Size Matters, 917-435-9329; leoniehaimson@gmail.com
Wendy Lecker, Education Law Center, 203-536-7567, wlecker@edlawcenter.org

NYC PARENTS FILE COMPLAINT TO ENFORCE LAW TO REDUCE CLASS SIZE

Demand Department of Education Reduce Class Size as Mandated in State Law

Today, nine parents from every New York City borough filed a petition with State Commissioner of Education MaryEllen Elia, charging the City Department of Education (DOE) with failing to reduce class sizes as mandated by the Contract for Excellence Law (C4E). The City’s Public Advocate, Letitia James, and two advocacy groups, Class Size Matters and the Alliance for Quality Education, also joined the parents in the petition.

Education Law Center (ELC) is representing the Petitioners.

Please see Parent Petitioners’ quotes below.

In 2007, as required by the C4E law, the DOE developed a class size reduction plan for the City’s public schools, pledging to lower average class sizes in Kindergarten through third grade over five years to no more than 20 students; in fourth through eighth grade to no more than 23 students; and to no more than 25 students per class in high school core classes. The State Education Commissioner approved the plan.

The DOE never delivered on its plan. Instead, class sizes have increased sharply since 2007, particularly in the early grades, and are now substantially larger than when the C4E law was enacted. As of fall 2016, DOE data show classes in Kindergarten through third grade were more than 18 percent larger, classes in grades four through eight were six percent larger, and high school classes were 1.5 percent larger than in 2007.

“The growth in class size from 2007 to the present is breathtaking,” said David Sciarra, ELC Executive Director. “For example, in 2007, a little over 1,100 students in grades one through three were in classes of 30 students or more. As of November 2016, a staggering 43,219 first through third graders were in classes this large, an increase of almost 4000 percent.”

“New York City students have waited too long for a better opportunity to learn, and it is unacceptable that the City has reneged on its legal obligations,” said Leonie Haimson, Executive Director of Class Size Matters. “The research is crystal clear that smaller classes benefit all children, but especially those who predominate in our public schools: students who are low-income,  have special needs, or are English Language Learners.”

“A decade ago, the City committed to reducing class sizes to appropriate levels, a resource identified by New York’s highest court in the Campaign for Fiscal Equity case as essential for a constitutional sound basic education,” said Billy Easton, Executive Director of the Alliance for Quality Education. “But now class sizes are even larger than when the court issued its decision. It is past time for the DOE to live up to this legal obligation.”

“The research is clear: smaller classes are better for our children. This indisputable fact can no longer be ignored. I am proud to stand with a diverse coalition of education advocates to demand the city provide our students with the smaller class sizes they are owed. There can be no equity or excellence when students in The Bronx and throughout New York City must sit in classes this large,”  said Bronx Borough President Ruben Diaz Jr.

The Petitioners are requesting that Commissioner Elia order the DOE to immediately begin reducing class sizes to the averages set forth in the 2007 class-size reduction plan and to reach those averages in no more than five years. Petitioners are also asking the Commissioner to order the City to promptly align its capital plan for school construction to the class size averages in the 2007 Plan, another requirement of the C4E regulations.
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Parent Petitioners Speak:

“My daughter has been in extremely large classes since Kindergarten,” said Naila Rosario, a parent in District 15 in Brooklyn. “This year, in fourth grade, she is in a class of 32 students. She cannot possibly receive the kind of personal attention and feedback every child deserves and needs to be successful in school. In fact, often her teacher does not even have enough time to answer all the students’ questions. There is no way my daughter or any of her classmates can get a quality education in a class this large.”

Deborah Alexander has two children at P.S. 150 in Queens, one in 1^st grade and the other in 4^th grade. Both are in classes of 3O students: “My fourth grader told me he doesn’t bother to raise his hand anymore, because as he said to me, there are too many kids, so I’m never picked. My daughter’s class is full of restless children, waiting their turn to be able to speak. Some of the children have social-emotional issues and clearly feel deprived, no matter how hard their teacher tries. It is time to aggressively address class size reduction once and for all so that all children know they are seen and heard.”

“My son, who has an IEP, has been held back twice and is at risk of being held back again,” said Rubnelia Agostini, who has a second grade child at P.S. 277 in the Bronx. “His class size is now 25, and he was in a class of 27 in Kindergarten at P.S. 205. After two months in Kindergarten he was bused to another school to address class size violations, since Kindergarten classes are supposed to be capped at 25. Now his independent evaluation says he needs a small class, but his school doesn’t have any small classes, and some are as large as 27. Why can’t my son receive the quality education he needs to succeed?”

Litza Stark’s son is in an inclusion, or ICT, Kindergarten class with 28 students at P.S. 85 in Queens. The ICT class contains 10-12 students with special needs: “Especially since this is an ICT class where students present an array of extra challenges, his class size causes excessive stress on the teachers and the students alike. PreK is important, but so is the quality of education for children in Kindergarten and up.”

“My son’s class has 24 children, many of them requiring close support, and his teacher is not able to individualize instruction as she could in a smaller class,” said Reeshemah Brightley, the mother of a Kindergarten child at P.S./I.S. 76 in Manhattan. “Classroom management is difficult, and students are more disruptive in a large class than they otherwise would be, making it hard for the rest of the class to focus.”

JoAnn Schneider’s son is a fourth grader in an ICT class of 31 students at P.S./I.S. 113 in Queens: “My son receives special education services and has been in an inclusion class since Kindergarten. He’s making only minimal progress because he needs a more focused environment that only a small class can provide. It is not right that my child should be denied the kind of education given to children elsewhere in the state where classes average only 20-22 students per class – especially when the law requires it.”

Johanna Garcia, a mother of two children at P.S./I.S. 187 in Manhattan, explained: “My son is in third grade in a class of 28. He receives special services, but his class is far too big and he has trouble keeping up. When he was in Kindergarten, his class size exceeded the cap, and that’s when it became clear to me that it was impossible for him to receive the attention he needed with so many other children in the class. My daughter is in a class of 29 students in fifth grade, and many in her class have been unable to stay engaged and afloat. The city owes it to my children and all other students in the public school system to remedy this egregious violation of their rights.”

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Our 2017 Skinny Award dinner; a wonderfully joyful and inspiring evening!

Our Class Size Matters Skinny award dinner was held last Tuesday, June 20, and it was terrific, despite a last minute change of venue because the restaurant where it was supposed to be held unexpectedly closed. Many people told me it was the best Skinny award dinner ever. Amir of Casa La Femme welcomed us with open arms; the restaurant is luxurious and spacious, with good food, and a belly dancer even turned up at the end of the evening. Sorry if you didn't make it, but there's always next year. Below is the speech I gave and some photos; there are many more on the Class Size Matters Facebook page here. See also the video of the CPE1 parents singing below.  The evening was also covered by bloggers Arthur Goldstein and Norm Scott.


Welcome to our 9^th annual Skinny award dinner. This is always one of the most joyous and inspiring evenings of the year for me and I hope for all of you as well.

Carol Burris, Diane Ravitch  and John Allgood.

Before getting started Some special people I want to thank – first of all, the Class Size Matters board – Diane Ravitch, Patrick Sullivan, Monica Major, Emily Horowitz and Cynthia Wachtell.

I want to thank Diane, Cynthia and Susan Ochshorn of Early Childhood Education Policy Works for their generosity and helping to underwrite the dinner tonight.

My fellow NYC Kids PAC members who are here tonight – many of whom also volunteered to help set up and check you in -- Shino Tanikawa, Karen Sprowal, Fatima Geidi, Gloria Corsino – all great parent leaders. Also Benita Lovett-Rivera, our brilliant graphic designer, who helped with the turnout and success of tonight’s event.

I want to thank Dr. Audrey Baker and Dr. Gerry Baker, for coming and to congratulate Audrey for receiving her Doctorate of Educational Leadership just a few weeks ago.

Karen Sprowal and Jan Atwell

I want to thank Jan Atwell with teaching me everything I know about education policy and politics and has been my mentor in this area for many years Whenever I don’t know the answer to a question I just ask Jan.

And most of all, I want to thank my husband Michael Oppenheimer for supporting me every possible way – financially emotionally and telling me that what I do is worth doing, even as his own job and mission is literally saving the world from climate change.

When we started this in 2009 we held it at a little café on Chambers Street. Never did I imagine that I would still be doing this nine years later. Now I want to explain why this is called the Skinny awards: First of all, we’re a Skinny organization, with a very modest budget; and the name is meant to contrast with the Broad award, given by the billionaire Eli Broad to public school systems that conformed to his corporate reform ideology. Finally, the award is given to people who give us the real “Skinny” on NYC schools.

There are also a bunch of previous Skinny award winners I’d like to recognize who are here tonight:

Diane Ravitch won our first Skinny award in 2009 – and since then has led the nation, through her incredible intellect, knowledge and passionate and eloquent writing in advocating for our public education system, and protecting it from the privatization efforts of and the assorted billionaires, corpocrats and Silicon Valley executives who would like to privatize education I barely have time to read her prolific and prodigious blog every day – I have no idea how she manages to write it all.

Also here tonight is Robert Jackson who received the award in 2010 – for his role as the chief

Robert Jackson, Gretchen Mergenthaler; Sarah Morgridge

plaintiff in the CFE lawsuit, in which he sued to obtain funding equity for NYC schools and also for his excellent work chairing the City Council Education Committee for many years.

Regents Chancellor Betty Rosa is here tonight; please give her a round of applause. Her election as Chancellor is probably the best thing that happened to education in our state in many years; she won the Skinny award along with Regent Kathy Cashin in 2012.

In 2013, Teacher and bloggers extraordinaire Arthur Goldstein and Gary Rubinstein, received the Skinny awards, and in 2014, Carol Burris former principal of South Side HS on Long Island who is now doing a stellar job as Executive director of the Network for Public Education.

Barbara Harris, Kemala Karmen, Lisa Rudley

Also here tonight is the amazing Lisa Rudley Executive Director of NYS Allies for Public Education; Kemala Karmen from NYC Opt out and Rosalie Friend, Jane Maisal, Katie Lapham and Fred Smith from Change the Stakes– who collectively won the award in 2015 for their amazing work leading the opt out movement.

Now for the 2017 Skinny awards.

Wendy Lecker from the Education Law Center is not only a brilliant pro bono attorney but also has a terrific weekly column in the Stamford Advocate newspaper. She has represented the rights of NYC public school students since the days of the Campaign for Fiscal Equity case, and in numerous successful lawsuits since then -- including making the NYC Department of Education comply with the law when it comes to holding borough hearings on the

Wendy Lecker of Ed Law Center

Contracts for Excellence plans.

Most recently, she forced Governor Cuomo to provide legally mandated funds to struggling schools despite his efforts to withhold them. She is about to represent CSM and NYC parents on another legal matter, which I’d hoped I could announce tonight, but has been unfortunately delayed due to circumstances out of our control. Wendy Lecker, will you come up and accept your well-deserved Skinny award?
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One of the most extraordinary stories of this year is how a student newspaper at Townsend Harris HS in Queens called the Classic helped bring down an interim principal named Rosemary Jahoda, by reporting on numerous examples of her unacceptable behavior, including refusing to address the discrimination of Muslim students, delaying sending student transcripts to colleges, micromanaging teachers, and other instances of insensitivity to students and teachers alike. They live-streamed a student sit-in to protest her actions when the Superintendent was visiting the school, and posted a recording of the principal's conversation with a staff member, in which she used foul language.

Brian Sweeney, Sumaita Hasan, Mehrose Ahmad of Townsend Harris

For all their conscientious reporting, the newspaper received the ultimate compliment from DOE officials in the age of Trump, who called their stories “fake news.” Instead, a teacher at the school countered this way, and I quote: "These students double and triple check their sources and the DOE should have done as much vetting on Miss Jahoda."

Their work was repeatedly hailed in the NYTimes, WNYC and local papers for helping to build support for the principal’s removal, which finally occurred in April. Mehrose Ahmad and Sumaita Hasan, students and co-editors of the Classic, and your faculty adviser, Brian Sweeney please come up and accept your well=deserved skinny award for your brilliant reporting and courage, and for giving us the real Skinny on NYC public schools.

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Laura Barbieri of Advocates for Justice

The next awardees are very special to me. Advocates for Justice have fought for the rights of public school students in innumerable cases, including representing CSM in a lawsuit we helped file against Arthur Schwartz went up to argue the case in state court, he was the sole attorney against five attorneys for the city and the DOE, and an army of other attorneys who trooped in from three private white shoe law firms representing Success Academy and other charter schools.

Yet Arthur was not daunted, argued the case brilliantly, and we would have won that lawsuit, except in the meantime the Legislature and the Governor changed the law and took that clause out.  allowing the DOE to only charge $1 to charter schools for co-locating in public school building; as the state law said at that time that if the DOE if they chose to give space to charter schools they would have to charge them market rates. When

Since then Arthur and Laura Barbieri, Special counsel at Advocates for Justice, have sued DOE to stop other charter co-locations and against charter school discrimination against special needs students; Laura has also represented the parents and students in E. Ramapo in federal court, against their school board diverting public school funds to promote their own religious schools and discriminating against students based on race, color, national origin, ethnicity, and religion.

Most recently, Laura represented Class Size Matters in the lawsuit we pursued to ensure that School Leadership Team meetings are open the public and we won vs DOE, first at the Supreme Court level and then in a unanimous decision by the Appellate Court this fall. And incredibly, like Wendy, they do all this work for free! Arthur and Laura – please come up and receive well-deserved our Skinny award .

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The amazing parents of Save CPE1

Now last but not least, we want to celebrate and honor an amazing act of organizing organization and advocacy by the parents of Central Park East, who refused to let the principal installed at their school destroy its wonderful spirit and traditions. The school founded by Debbie Meier in 1974 has long prided itself on its progressive philosophy and democratic form of government., and when parents discovered the DOE had installed a principal who not only had not background in progressive education but put teachers who opposed her in the rubber room, grilled children in her office trying to get them to make unfounded accusations against their teachers without the knowledge of parents, and lied to them, they didn’t give up.

Instead, they fought back. They attended every single PEP meeting and urged the Chancellor to act, held numerous rallies, signed petitions, and finally in April, sat in at their school overnight – daring the DOE to arrest them. The last straw was when the principal banned two of the parent leaders from the school on trumped up charges, Jen Roesch and Kaliris Salas-Ramirez. After being subjected to more than a year of bad PR and damaging headlines, the Mayor and the Chancellor finally conceded and the principal resigned last month. For their incredible bravery, hard work, and persistence in saving their school, will Jen and Kaliris on behalf of Save CPE I, please come up and accept your award.

Receivership schools, class size and nine years of broken promises to our kids from the DOE: a letter from the Education Law Center

Check out the letter below from Wendy Lecker of the Education Law Center, asking Commissioner Elia if she is going to approve NYC's deeply flawed Contracts for Excellence plan, a "plan" in name only that does not even pretend to reduce class size citywide and thus does not comply with the state C4E law passed in 2007.

Even in the limited number of 90 plus Renewal schools the DOE says it has focused its class size reduction efforts on for the last few years, very few of these schools significantly reduced class size.  Last year, only seven out of 94 Renewal capped class sizes at the original (and fairly modest) C4E goals of 20 students in grades K-3, 23 students in 4th -8th grade and 25 students in high school classes -- which would still be larger than class sizes averages in the rest of the state.

This is flagrantly unacceptable.  Since 2007, DOE has promised to reduce class size in its lowest-performing schools.  For the first 7 years or so, this involved a list of 75 low-performing schools with especially large class sizes.  None of these schools ever lowered class size to acceptable levels, and many of these schools have now been closed.  Others have continued to struggle.  Promises have been repeatedly made to these children, to parents, and to the state, and repeatedly broken, and the state hasn't even bothered to pretend to care. For the last three years, DOE has promised to reduce class size at the Renewal schools.  This hasn't happened either.

The three most persistently struggling NYC schools, according to the state, are all Renewal schools in the Bronx.  They have been on various permutations of the failing list for at least a decade.  They are middle schools, composed primarily of students from low-income families with large numbers of English language learners and special needs children: JHS 162 Lola Rodriguez De Tio in District 7, IS 117 Joseph H. Wade, and JHS 22 Jordan Mott, both in District 9.

JHS 162 and IS 117 have been on the city's priority list for class size reduction since 2007, when the Contract for Excellence law was first passed; JHS 22 since 2009.  Yet DOE has never bothered to cap class sizes in these three schools at levels that would guarantee significant progress. Though JHS 162 did finally lower average class size to 22 last year, many classes remained as large as 28 in all four core subjects, according to DOE data.  JHS 22 actually increased class size last year, and also had classes of 28 students.  At  IS 117, class sizes not only increased, but grew to 29 students per class on average.  Many core classes were as large as 33-34 students --which are so large they actually violate the UFT limits for Title I middle schools  -- supposed to be capped at 30 students per class.

On Wednesday it was announced that JHS 162 will be put into receivership, having made the least progress of the three schools in terms of test scores. Within 60 days, Chancellor Fariña must appoint an outside individual or organization to manage the school, merge or close it. If it is closed it will join the many NYC schools that met this fate without the DOE officials having tried the most obvious method -- and the method they promised to carry out -- to improve them.

Below Wendy's letter is the testimony she earlier submitted on C4E.  The excellent ELC report she cites showing growing class sizes over the last nine years is posted here.

ELC Letter to Commissioner Elia Re NYC C4E Plan by Leonie Haimson on Scribd

Education Law Center C4E Testimony 2016-17 by Leonie Haimson on Scribd

The lawsuit just filed on behalf of the receivership schools

Wendy Lecker, one of the attorneys from the Education Law Center who sued the State Division of the Budget and the State Education Education last week for denying funds to struggling schools on behalf of parents, wrote this summary of the case below.  Three of the schools are in NYC as explained below.  More on how these schools intended to use these funds are here.  Here is the verified petition.

Attorney Wendy Lecker

On September 2, parents from Albany, Yonkers and New York City filed a lawsuit against the state seeking the release of receivership grant money that the Division of Budget is withholding from their children’s schools, as well as six other schools across the state.  

In 2015, New York State passed Education law 211-f, known as the Receivership Law, which directed the Commissioner of Education to designate New York public schools as “persistently failing” based on test scores and other outcome data. Appropriations legislation also passed in 2015 directed that these “persistently failing” schools were eligible to receive $75 million in funding for two-year grants.

The appropriations law mandated that the State Education Department (“SED”) develop an expenditure plan for these “transformation grants,”  that the Division of Budget (“DOB”) approve that expenditure plan, and that DOB then release the grant money pursuant to that spending plan.  

SED developed the plan in October 2015, and it was approved by DOB on October 15, 2015. The plan specifically provided for two-year grants for twenty schools, including the schools at issue in this lawsuit: Roosevelt High School, in Yonkers, William S. Hackett Middle School, in Albany, and JHS 80 The Mosholu Parkway Middle School in the Bronx. The plan also set forth the amount each school would receive over the two years.  All twenty schools applied for and received the two-year grants set forth in the spending plan. Nothing in either the spending plan nor in the applications indicated that these schools would forfeit the second year of their grants should their performance improve.

The three schools used these grants to provide mental health services and other social supports to students, extra academic support and enrichment, and professional development- all designed to improve student learning conditions and performance.

In February 2016, Commissioner Elia determined, based on student outcome data, that nine of the twenty schools were no longer considered “persistently failing.”  SED declared in February 2016 that the nine schools removed from the “persistently failing” list  “will continue to be eligible to receive funding in 2016-17 from a state grant to support and strengthen their school improvement efforts.”

However, Governor Cuomo directed the Division of Budget to withhold the second year of grant funding from these nine schools, in direct violation of the law and the statutorily-mandated spending plan approved by the DOB.

In addition to Roosevelt, Hackett and JHS 80, the six other schools affected by the DOB’s decision to withhold the grant funding are: Grant Middle School in Syracuse; three schools in Buffalo including the Elementary School of Technology, Burgard Vocational High School, and South Park High School; and Automotive High School and PS 328 Phyllis Wheatley School in Brooklyn.

Parents are outraged that Governor Cuomo is punishing these schools for improving by taking away the very resources that will help them continue to improve. 

SED continues to maintain that the transformational grant funding should be released. SED spokesperson Emily DeSantis, was quoted in the New York Times as declaring: “It makes no sense to take away funding from schools that have just started to show progress and that need all the support and resources we can give them.”

The parties are due in State Supreme Court in Albany on September 23, at 9 a.m.