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.

Advocates and Parents Sue in Court to Demand City Reduce Class Size Now

The Daily News reported on our lawsuit , as did Queens Chronicle, WNYC radio, and Our Time Press.

For immediate release: Monday April 16, 2018
Contact: Leonie Haimson, leoniehaimson@gmail; 917-435-9329

 Advocates and Parents Sue in Court to Demand City Reduce Class Size Now

On Thursday April 12, 2018, Class Size Matters, the Alliance for Quality Education and nine parents from all five New York City boroughs filed a lawsuit against the NYC Chancellor Carranza, the Department of Education, and NY Education Commissioner Elia in the State Supreme Court in Albany, to demand that class sizes be reduced in NYC public schools.  The plaintiffs were represented in court by Wendy Lecker of the Education Law Center.

The Contract for Excellence Law was passed in 2007, requiring that the NYC Department of Education lower class size in all grades over five years. Instead, class sizes have risen substantially since then. In July 2017, these same plaintiffs appealed to the NY State Education Commissioner, to demand she enforce the C4E law and require the NYC Department of Education reduce class sizes in all grades. The Commissioner dismissed the petition in December 2017, wrongly claiming that the city’s obligation to reduce class size had “expired” even though the class size provision remains in the law. Now advocates and parents have challenged that decision in court.

Said Leonie Haimson, Executive Director of Class Size Matters, “It is unconscionable that the state

and the city have flouted the law and are subjecting over 290,000 students to overcrowded classes of 30 students or more. It is time for the new Chancellor to finally do the right thing and provide our children with a better opportunity to learn. Class size reduction is one of only handful of reforms have been proven to work to boost student learning and narrow the achievement gap. The fact that NYC test scores have stalled over the last four years, according to the most reliable national assessments, shows that our students desperately need smaller classes.”

“Studies have shown us time and time again that when class sizes are too big, children do not get the
attention and resources they need to thrive,” said Public Advocate Letitia James. “Despite a legal obligation to reduce class sizes, the Department of Education has continued to allow classes in New York City to grow substantially, denying our children the education they deserve and putting far too much pressure on teachers. I am proud to continue standing with Class Size Matters and parents until the City makes good on their commitment to our children.”

JoAnn Schneider, a Queens parent and plaintiff, agreed: “The other day I encouraged my son to raise his hand during 5th grade math. He had just received a "0" for participation. In a class of 32 kids, his chance to participate and his chance to learn has been squashed. He needs a smaller class size now.”

“Smaller classes are necessary to create the vibrant, interactive learning environments our students need to succeed. Far too many of our city’s students are currently trying to learn in overcrowded classrooms, and we can no longer accept the status quo on this critical issue,” said Bronx Borough President Ruben Diaz Jr.

“My daughter has been in huge classes since Kindergarten,” said Naila Rosario, another plaintiff whose children attend public schools in Brooklyn. “This year, in fifth grade, her class size is 34. Like other children, she needs and deserves more personal attention and feedback to thrive. Despite the Mayor's claims, there can be neither equity nor excellence when NYC children are disadvantaged in this way."

In a newly-released report entitled Planning to Learn, the New York City Council acknowledged that “NYC has still not met the agreed-upon class size reduction goals established in 2007.”

"It is unfortunate that it has come to the point where a lawsuit is needed to address the issue of reducing class size," said NYC Council Finance Chair Daniel Dromm (D-Jackson Heights, NY). "As a former NYC public school teacher, I know how important small class size is to improved student outcomes. Sadly, hundreds of thousands of our students are still crammed into classes of 30 or more and do not receive the attention they need to succeed. This situation is unacceptable and needs to be fixed immediately."

Advocates and parents are asking the court to overturn the Commissioner’s decision and order New York City to fulfill its obligations under the law to lower class size, so that the city’s children have an opportunity to obtain the sound basic education to which they are entitled under the state constitution. The state’s highest court in the Campaign for Fiscal Equity case said could not occur in NYC schools without smaller classes.

The complaint is posted here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When: Thursday, Sept. 15 at 9AM

What: Press conference before charter co-location court hearings

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

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

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

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

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

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

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

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

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

Victory for parents and kids in stage one of class size lawsuit!

Judge Barone of the NY Supreme Court issued decision (in pdf) this afternoon and denied the city's attempt to dismiss our class size lawsuit. brought in January by the UFT, Class Size Matters, the NAACP, and other parents and community groups.

The city had claimed that only the State Education Commissioner could rule on whether they violated the law when it came to class size. Inserted in the language of the law was a clause asserting that the “sole and exclusive remedy for any violation” was a petition to commissioner, and “the decision of the commissioner on such petition shall be final and unreviewable.”

This language was most likely the DOE’s sneaky attempt to ensure that they would never have to comply with the law, as they were convinced that the commissioner, then Richard Mills, would get them off the hook, as he had in many cases before.

Yet the judge found the attempt to box out the court was likely unconstitutional, and that the legislature must have meant that the commissioner had the final right of review over the details of the class size plan, not the city’s legal compliance, especially as this entire matter flowed out of the court’s decision in CFE.

The city’s other main argument was that our petition should have gone to the Commissioner first in any case.

The judge agreed with our attorneys that this would cause unnecessary delay and would "irreparably damage the children who will during the course of these proceedings be relegated to learning in the overcrowded conditions which the legislature sought to alleviate.”

Yet another victory for NYC parents and their children's right to have a quality education, and another slap in the face of DOE’s outlaw mentality.

The Judge wrote they will see the attorneys in court on July 26 for a pre-hearing conference to start determining the facts of the case, i.e. whether the DOE has actually complied with its plan and reduced class size.

The facts on this issue are clear; they have not.

Check out Class Size Matters summary of the facts in the case here; here is the legal petition; here is my affidavit with some nifty charts.

Our class size lawsuit gets its first day in court

This morning, Judge John Barone of the NY State Supreme Court in the Bronx heard arguments in our class size lawsuit against the city, which has failed to comply with state law and its own mandated class size reduction plan. Instead of reducing class size, as the state ordered in April of 2007 as part of the Contracts for Excellence, class sizes have risen at an unprecedented rate in city schools over the last two years.

In its papers, the city argued that the court has no role in deciding this matter, but right off the bat, the Judge rejected the claim that the sole authority over NYC’s compliance with the law should be reserved for the NY State Commissioner of Education. Judge Barone said that even if the state legislature wanted to deprive the court of jurisdiction that would be unconstitutional. He said he was “astounded” that any attorney would dare argue that the court doesn’t have the power to review this matter.

Very quickly the legal arguments became focused instead on whether the plaintiffs (including Class Size Matters, the UFT, NAACP, the Hispanic Federation, and assorted public school parents) should exhaust other administrative remedies first before coming to court, i.e. filing a complaint with the Commissioner.

Charles Moerdler, one of our attorneys from the firm of Stroock, Stroock and Lavan, recited a long list of legal precedents as far back as 1919, including decisions of the Court of Appeals, showing that the court has a right to step in before other administrative procedures have been exhausted. He provided important background information, explaining how as a result of the Campaign for Fiscal Equity decision, the city had been provided with more than $1.5 billion in state funds, with $760 million of that earmarked for class size reduction, on the condition that it reduce class size. The city submitted a plan to do so, promised it would spend that money appropriately, and did not. Thus it is in breach of contract, pure and simple. This is matter of law, not fact, and the court is the best place to hear a matter of law, he argued, especially as the Commissioner of Education has no legal background.

Moerdler also pointed out that going to the Commissioner now for a ruling could take months, and the courts have found that where there is a need for urgent action, as there is in this case, they should step in. Going the other route could consign thousands of children to irreparable harm and another school year of illegal and excessive class sizes that would deny them the fundamental right to an adequate education. Given that the Commissioner’s decision is likely to be appealed to the Court in any event, these children could have graduated from high school before the case was resolved.

The lawyer from the city’s Corporation Counsel, Emily Sweet, said that if the Judge did hear the case, the trial would be full of complicated and arcane matters involving budget allocations, DOE guidance memos and various funding streams, and that the Commissioner was more able to determine the facts of the case and understand these complex matters.

Yet despite the attempts of the city to confuse and obscure this issue with smoke and mirrors, including jargon-filled memos, abstruse powerpoint presentations, and talk of funding streams, the facts in this case are clear and undisputable: the DOE has not reduced class size, according to its own data. It has not adhered to its own state-mandated and binding class size reduction plan, and has not used the funding as required by law.

Judge Barone said that he would give both sides two weeks to submit more papers, but that he intended to rule shortly thereafter as to whether the case should proceed to trial. As he said the city's motion to dismiss is is an important motion in an important case. Cross your fingers and hold onto your hats!