Revelation that NYC's School Construction Authority has been operating without a legally constituted board for a full year & Why it Matters

Sept. 3, 2024

In Saturday's NY Post, it was reported how the School Construction Authority, which has jurisdiction over NYC's $19 billion dollar capital plan, has been operating for a full year without a legally constituted board.  Over that period, the board has approved not only the capital plan, but also hundreds of millions of dollars in contracts to consultants and builders, passed resolutions including the move of the agency's headquarters and the hiring of 31 new civil service employees.

The enabling state act which created the SCA says this:

The authority shall be governed by and its powers shall be exercised by a board of trustees consisting of three members. The members shall be the chancellor, or acting chancellor if the position of chancellor is vacant, and two other members, to be appointed by the mayor. The chancellor or acting chancellor shall serve as the chairperson of the board of trustees. ...Each appointed member shall continue in office until a successor has been appointed and qualifies.

And yet there have only been two members of the SCA board since August 2023, when Lorraine Grillo resigned:  the Chancellor and Peter McCree, who according to LinkedIn is president of a company called Link2Consult Inc.

The Agency itself seems so oblivious of the necessity of having three members that it actually posted this organizational chart on its website last April:

Highlighted above is also the name of the Inspector General, William Schaeffer, who is supposed to ensure that the SCA operates legally.  Yet Schaeffer is quoted in the NY Post article this way: "We need to appoint a third trustee, not because we’re violating the law, but because that’s what the statute requires.” What?

 

To make things worse, Schaeffer is not only the IG but also the Vice President of the SCA and his salary is paid by the SCA, rather than by the Department of Investigation, unlike the IG of every other city agency.  In addition, his situation is unique in that he was jointly appointed by both the SCA President and the DOI Commissioner.  These findings raise real concerns about his potential conflicts of interest, leading to a lack of sufficient oversight and real independence. 

 

If one reads the Board minutes from the past year, there is no mention of the class size law, no mention of how the $2 billion cut to new capacity imposed by the Mayor would affect their ability to build enough classrooms to comply, and no mention of the state budget passed in April 2024 that required them to add another $2 billion for new construction to create the space for smaller classes.  In fact there is little discussion of any of the relevant issues confronting the DOE and SCA except for much self-congratulatory chatter about how they have awarded more MWBE contracts.

Nor is there any discussion of how the contract with Local 1740, the union of School Architects, Engineers and Technical Professionals, expired three years ago, and negotiations have stalled, except for brief comment by Deputy Chancellor Weisberg following a statement from a union leader during the public comment section of their March board meeting, in which she expressed her hope for a swift resolution. 

 

As it is, the SCA operates with little transparency and accountability, as we have pointed out many times including in the NYP article.  By refusing to publicly report in which districts they need and intend to build more school seats in the capital plan, and by saying this will not be revealed until the sites have already been acquired and projects are in design, SCA officials appear to be violating their own enabling legislation, as well as Education Law §2590-o, the class size law, and Local Law 167.

 

 

DOE absurdly claims that their refusal to report on vaccination rates is due to privacy concerns

UPDATE: the DOE finally released school-wide vaccination rates on Feb. 25, about two months after this data reporting was legally due.  You can download the spreadsheet here, or look up the name of your school here.  

Finally, a media outlet covers the fact that NYC DOE is violating the law when it comes to their refusal to report on student vaccination rates overall and by school.  As Christina Veiga of Chalkbeat writes,

How many New York City public school students are vaccinated?

Education department officials won’t say, even though they use those statistics to determine how many students to test for COVID at each school. The city has not provided school-level vaccination rates despite a City Council law that requires the department to do so. The city also missed its Wednesday deadline in responding to Chalkbeat’s public records request for the data.

That information is particularly relevant now, as Gov. Kathy Hochul weighs whether to end school mask mandates. A decision is expected in early March, and vaccination rates are one of the factors Hochul has said she will consider.

We wrote about the fact that the DOE refuses to release this mandated data according to Local Law 152 last Sunday.

 DOE claims to Chalkbeat that the delay is due to student privacy concerns:

New York City education department officials said they are making sure to comply with any student privacy laws before releasing school-level vaccination information. “This is sensitive data and we are currently working to balance transparency with the privacy of our students prior to the release of this data,” said education department spokesperson Nathaniel Styer.

As a privacy advocate who co-founded the Parent Coalition for Student Privacy seven years ago, I can safely say that this is an absurd excuse, as vaccination rates contain NO personally identifiable student info.  It is especially absurd given how the DOE continues to violate the state student privacy law every day.

 

Why is NYC refusing to report vax rates in schools as required by law, & doing little to increase those numbers?

UPDATE: the DOE finally released school-wide vaccination rates on Feb. 25, about two months after it was legally due.  You can download the spreadsheet here, or look up the name of your school here. 

Given all the debate over whether the mask mandate in schools should be lifted or remain in place, it is more important than ever that all NYC public school students age five and up who are eligible are vaccinated. 

We actually don't even know how many are: the only available data pertains to all children: those  5-11 years old are  about 33%  fully vaccinated, and those 12-17 year olds about 76%, according to state data.  The city  has similar figures: 39% for children ages 5-12 and 77% for children ages 13 to 17.  However, doesn't tell us what the vaccination rate for public school students, either citywide or for individual schools.

Yet Local Law 152 was approved by the DOE in November of 2021 and came into force in mid-January,.  The law requires DOE to report on vaccination rates, as well as  consent rates for Covid testing and much other data, both citywide and by individual school as well as disaggregated by race, ethnicity etc.   

Here is an excerpt from the law:

To the extent such information is collected, no later than 15 days after the effective date of
this local law, and every two weeks thereafter, the chancellor shall conspicuously post on the
department’s website a report that includes the following information, aggregated citywide and
disaggregated by school, for the previous two weeks:

1. The number and percentage of students partially vaccinated for COVID-19 in attendance;
2. The number and percentage of students partially and fully vaccinated for COVID-19;
3. The number of COVID-19 student testing consent forms received by the department that are
deemed valid and unexpired as of the end of the reporting period, and the total number of students
who were unvaccinated as of the end of the reporting period;
4. The number of COVID-19 student testing consent forms withdrawn; and
5. The number of unvaccinated students required to quarantine due to exposure in school to an
individual who tested positive for COVID-19, further disaggregated by students, teachers,
administrators, and other school staff.
d. To the extent such information is collected, the aggregated and disaggregated information
required weekly pursuant to subdivision b of this section shall also be further disaggregated by
grade level, gender, race or ethnicity, individualized education program status, English language learner status, status as a student residing in shelter and status as a student in temporary housing
that is not a shelter.
e. No later than 30 days after the effective date of this local law, and monthly thereafter, the
chancellor shall conspicuously post on the department’s website the aggregated and disaggregated
information required pursuant to subdivision c of this section, further disaggregated by grade level,
gender, race or ethnicity, individualized education program status, English language learner status,
status as a student residing in shelter and status as a student in temporary housing that is not a
shelter, to the extent such information is collected.

Yet the DOE has so far refused to release this data, as far as I know.  Why is this important? 

The city is spending millions of dollars on TV ads encouraging parents to have their children vaccinated.  Yesterday, I asked parents and teachers on Twitter the following question:

I see a lot of TV ads urging people to get their kids vaccinated, but NYC teachers & parents- have you seen any real focused efforts in your schools? Examples: calls home, backpack mail, Vax sites established in schools, collaboration with PTAs or SLTs?

— leonie haimson (@leoniehaimson) February 12, 2022

You can see the answers on Twitter. Most responders said their schools had done nothing to encourage parents to have their children vaccinated. One teacher said the principal had taken advantage of a vaccination clinic at a co-located school to get a booster, but hadn't informed the students or staff at their school of any such opportunities.  And one teacher actually said that DOE has discouraged them from even mentioning the vaccination issue to their students:

Nope, and NYCDOE legal advises admin (who then advises us) to avoid sharing our “opinions” about vaccines with students/discussing them in general.

— I 🛏 My 📱 (@CheeElle4) February 12, 2022

What a loss.  This should be the top safety priority of schools going forward over the next few weeks.  

New Orleans now requires vaccination of ALL students; DC has mandated vaccinations in its schools by March 1. 

The very least the DOE should do is provide the legally-required data for public school students, both citywide and  in individual schools, and make focused efforts in the schools where rates are low to persuade parents that vaccination is in the best interest of their children, their families, and their schools.

 

DOE to delay the release of any class size data due Nov. 15 until Dec. 31, and any disaggregated data until Feb.15

UPDATE: in late February the DOE released links to aggregate class size data that then links to spreadsheets on the Open Data site that seems absurdly low.  Now they say they will not release any disaggregated data that may be more accurate till sometime in March.

UPDATE 1/4/21:  According to City Council staff, the DOE now says they are further postponing the release of any class size data until "early or mid-January."

UPDATE 10/23/2020: Chalkbeat wrote about this issue here.

See the letter from Karen Goldmark below of DOE responding to the letter from CM Mark Treyger, saying they will not release any class size data until December 31, based on the size of classes on November 13, rather than the legal deadline established by city law of November 15.  It also appears from the letter that they do not intend to report any disaggregated data till February 15-- still based on the size of classes as of November 13  (!).

It is very difficult to understand why this should take so long, especially as at the Mayor's press conference on Oct. 26, the Chancellor said that schools have been reporting attendance data and thus class size in "literally three buckets of attendance every single day": in-person classes, remote blended learning classes, and full-time remote classes. 

One suspects that DOE officials just don’t want people to know how large the online classes actually are, as reported by parents and the media here, here and here.

 

What is City Hall trying to hide? See their decision memo blacking out why they refused to align the school capacity formula with smaller classes

Yesterday, the DOE announced changes to its Freedom of Information guidelines, stating that from now on, they will attempt to more accurately estimate when they will provide the documents requested, including "the approximate date, which must be reasonable under the circumstances, when the request will be granted or denied."

The current practice is that every month or so, the DOE’s legal office sends you a boilerplate email saying they are still looking for the document, but “due to the volume and complexity of requests” it will take another month “to respond substantively to your request.”  Then the next month goes by, and you get the exact same message again.

I currently have four FOIL requests outstanding for over a year, including the Renewal school’s class size reduction efforts and funding for this purpose, technology spending by DOE between 2011 and 2015, the cost of charter school facility upgrades and leases charter leases and facility upgrades between FY 2014 and FY 2016, and the names of the private organizations receiving student personal information and the legal agreements on how this data will be used and shared. 

All these requests were filed in April 2016 and I am still waiting; nearly a  year and a half later, for a substantive response.

Despite de Blasio’s campaign promises that he would reform the FOIL process and respond in a more timely fashion, the response time is now worse than ever, and DOE remains the least transparent city agency in response time according to this Chalkbeat analysis.   (See also the section on Transparency in the KidsPAC report card in which the Mayor got an "F".)

The current wait times and continual postponements of a substantive response are a violation of law, since they represent a “constructive denial” according to Robert Freeman of the NY Open Government Committee and other experts.  Whether or not this new procedure will mean that the DOE will respond any more speedily to FOIL requests is completely unknown.  I remain skeptical. The new policy was instituted as a result of a lawsuit by the NY Post, so perhaps if the DOE doesn’t shape up their act, they will have to go back to court.  

When I was on vacation in the middle of August,  I did receive a substantive response to one of my FOILs – this time one I filed to the Mayor’s office.  On April 10, 2016, I asked for the decision memo from the Mayor's office about their decision  to accept or reject the thirteen recommendations of the Blue Book Working group . This working group, appointed by the Chancellor and co-chaired by Lorraine Grillo, the head of the School Construction Authority, had recommended in December 2014 that the DOE align the school capacity formula to the smaller class sizes in their original Contract for Excellence class size reduction plan

The City sat on these recommendations for more than six months, and finally in July 2015, in the middle of summer, announced that they would accept seven of the 13 but reject six others, including what many members said was the most important one: to align the capacity formula with smaller class sizes.  There were several articles about this rejection, including in Chalkbeat and WNYC Schoolbook , DNAinfo, and on my blog here  and here.

The city’s decision not to align the school capacity formula is also an important factor cited  in our class size complaint to the state, filed in July; (see p. 13 of the complaint) , providing yet more evidence of the city’s violation of the Contract for Excellence law, which requires NYC to lower class size and to align its school construction plan with its class size reduction plan. To this day, no one from City Hall has explained their reasons for rejection this proposal -- though members of the Working Group have repeatedly asked for them to do so. 

The final decision memo from the Mayor’s office that I finally received in August is dated May 28, 2015, and is almost entirely blacked out.   The only info that is legible pertains to which recommendations they accepted, with all the explanations for the basis for their decisions redacted.  They even blacked out any mention of the six recommendations they rejected.

The other interesting aspect of the decision memo is how it was signed off on by many high- level staff -- including the Deputy Mayor, the Corporation Counsel, the Chief of Staff, Emma Wolfe, and Dean Fulehain, head of OMB, but no one from the DOE or SCA, which is peculiar given how the issue pertains to the way school capacity will be measured. 

The Mayor’s office FOIL determination letter that I received along with the memo claims the redactions were made because of the exception to FOIL listed under Public Officers Law Section 87(2)(g):

Documents exempted from release include:

(g) are inter-agency or intra-agency materials which are not:
   i. statistical or factual tabulations or data;
   ii. instructions to staff that affect the public;
   iii. final agency policy or determinations;

Yet though this decision memo does pertain to intra-agency communications, it is also a "final agency policy or determination."  

It also presumably cited facts to explain and rationalize the decisions made.  If there were no facts cited to explain the decisions made,  this would even be worse.  Below is my appeal letter to the state, making these points with relevant evidence from previous court decisions and asking them to provide a cleaner copy.

_________________________

Henry Berger, Records Appeals Office

foilappeal@cityhall.nyc.gov

RE: ID #2016-002-00063

Dear Mr. Berger:

I am appealing the decision to redact nearly the entire City Hall decision memo dated May 28, 2015, that approved or rejected certain proposals on reforming the school capacity formula; this letter is attached.

 

The FOIL determination letter that I received along with the memo stated that the redactions were made because of exceptions listed under Public Officers Law Section 87(2)(g):

Documents exempted from release include:

(g) are inter-agency or intra-agency materials which are not:
   i. statistical or factual tabulations or data;
   ii. instructions to staff that affect the public;
   iii. final agency policy or determinations… 

Yet though this decision memo does include intra-agency communications, it is also a "final agency policy or determination."   It also presumably included at least some facts to explain and rationalize the determinations made, which should not have been redacted.

See also  these relevant legal cases, granting access to such documents, from the Committee on Open Government website:

New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005) (held, dispatch calls made over Fire Department's internal communications system concerning response to September 11 terrorist attacks are disclosable "to the extent they consist of factual statements or instructions affecting the public"),,,,

Miller v. Hewlett-Woodmere Union Free School District, N.Y.L.J., May 16, 1990 (Sup. Ct., Nassau County, 1990) (granting access to records of final decision denying request to change schools); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896, (Sup. Ct. 1989) (granting access to inmate health care records as factual data and final agency determinations);

I urge you to reconsider and remove these redactions that related to these determinations as:

1- this is a final decision memo; and 2- presumably the explanations contained at least some facts.

This appeal is filed within 23 business days from the day I received the redacted memo.

Yours,

Leonie Haimson

Executive Director

Class Size Matters

leoniehaimson@gmail.com

917-435-9329