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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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LISA STEGLICH, individually and as parent and natural guardian :
of ALEXANDER HERLIHY, infant, RIC CHERWIN,
individually and as parent and natural guardian of MARLEY
CHERWIN, infant, CAROL BARKER, individually and as parent
and natural guardian of OMARI BROWN, infant, GINA
DEMETRIUS, individually and as parent and natural guardian of
SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually:
and as parent and natural guardian of MARGARET THOMAS,
infant, NYDIA JORDAN, individually and as parent and natural
guardian of HARRY D. JORDAN, infant, KAVERY KAUL,
individually and as parent and natural guardian of ASHOK KAUL, :
infant, RUBEN and GERALDINE LOPEZ, individually and as
parents and natural guardians of SHANE LOPEZ, infant,
MADELINE OLMEDA, individually and as parent and natural
guardian of CRISTINA JULLIA CRUZ, infant, LAZARA
QUINONES, individually and as parent and natural guardian of
DORIS ALCANTARA, infant, and MARILYNN SARJEANT,
individually and as parent and natural guardian of ALIY A
CLUNIE, infant,
Petitioners,
-against-
THE BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK aJk/a THE PANEL
FOR EDUCATIONAL POLICY, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, and DENNIS M.
WALCOTT, as Chancellor-Designate of the City School District
of the City of New York,
Respondents.
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Index No. 104300/11
lAS Part 29 (Torres, J.)
PETITIONERS' MEMORANDUM OF LAW
IN REPLY TO RESPONDENTS' VERIFIED ANSWER
PHILLIPS NIZER LLP666 Fifth Avenue
New York, NY 10103
(212) 977-9700
Attorney for Petitioners
Of Counsel:
Jon Schuyler Brooks
Paul A. Victor
Ma rc Andrew Landis
Meagan Zapotocky
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TABLE OF CONTENTS
Table of Authorities ii
1·· S .Pre irmnary tatement. 1
ARGUMENT ii
I.Petitioners May Challenge the PEP Vote in this Court ii
A. The 2010 Amendment Did Not Mandate Appeals to the Commissioner ii
B. This Court Retains Jurisdiction over Challenges Questioning Violation of Statutes vii
C. The Commissioner Lacks Jurisdiction over Non-Education Law Questions vii
D. The Commissioner Lacks Authority to Issue a Stay viii
II. Respondents Failed to Comply with the Education Law, the Chancellor's Regulations, and the
PEP By-Laws ix
III. Respondents Failed to Issue an Environmental Impact Statement xi
CONCLUSION 12
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Petitioners, all by their attorney Phillips Nizer LLP, submit this memorandum oflaw in
reply to the Verified Answer filed in this Article 78 proceeding by the Board of Education of the
City School District of the City of New York (now referred to as the Panel for Educational
Policy ("PEP")), the Chancellor of the City School District of the City of New York (the
"Chancellor"), and the New York City Department of Education ("DOE") (collectively,
"Respondents"), and in further support of their Verified Petition.
PRELIMINARY STATEMENT
Desperate to avoid adjudication of the Verified Petition on the merits, Respondents
attempt to wrest this matter from the jurisdiction of this Court. Apparently aware they cannot do
so, they then attempt to convince this Court that they have complied with the rigorous
requirements of the Education Law not by proving their strict compliance, but by lowering the
required level of compliance to "substantial" (thus admitting sub silento their non-compliance).
They argue that same lower standard governs, and absolves, their failure to comply strictly with
the notice requirements of the Education Law. Finally, they ask the Court to ignore the now
undisputed fact that they never even bothered to prepare an environmental impact statement.
Insum and substance, the Verified Answer admits the essential allegations made by
Petitioners, and asks this Court to employ legalistic trickery to get Respondents off the hook.
The potential harm to the infant Petitioners, and to students who in the future will attend one of
the high schools housed in the Brandeis Educational Campus (the "Brandeis Campus"), is too
great not to hear Petitioners on the merits, and not to hold Respondents to strict compliance.
The Verified Petition should be granted in all respects.
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ARGUMENT
I .
PETITIONERS MAY CHALLENGE
THE PEP VOTE IN THIS COURT
Respondents argue Petitioners' "are required under the Education Law to bring their
challenge to the State Commissioner of Education for a prompt administrative resolution." Opp.
Mem. at 1. As a matter of law, Respondents are wrong for multiple, independent reasons.
A. The 2010 Amendment Did Not Mandate Appeals to the Commissioner
Petitioners challenge the PEP vote approving the co-location because the Chancellor,
DOE and/or PEP failed to comply with statutory requirements established by the Education Law.
Historically, and without objection from the Chancellor, DOE or PEP, this Court has heard and
decided such challenges to PEP votes. See Mulgrew v. Bd. ofEduc., 28 Misc.3d 204 (Sup. Ct.
New York Cnty), aff'd, 75 A.D.3d 412 (lst Dept 2010).
Respondents argue an amendment to the Education Law enacted subsequent to Mulgrew
(the "2010 Amendment") stripped this Court of its jurisdiction over such challenges, vested
exclusive original jurisdiction in the Commissioner, and required Petitioners to exhaust their
administrative remedies prior to commencing this Article 78 proceeding. Opp. Mem. at 3-7.
Respondents' argument derives not from a specific legislative mandate set forth in the 2010
Amendment, but from a self-serving interpretation of its language that is wholly unsupported by
the legislative history of the 2010 Amendment.
The 2010 Amendment originated as Assembly Bill No. 11310 ("A.1131 0"). It was
"introduced, passed and signed in one day." New York State Legislative Annual 2010,
Governor's Program Memorandum #269 n.1. It was driven primarily by New York State's effort
to "win" dollars from the federal "Race to the Top" program." See generally, Assembly Debate
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Transcripts, 2010 Chap. 101 ("Assembly Tr."); Senate Debate Transcripts, 2010 Chap. 101
("Senate Tr.,,).1
Admittedly, the 2010 Amendment includes the following language:
Notwithstanding any provision to the contrary, in a city school
district in a city having a population of one million or more
inhabitants, the determination to locate or co-locate a charter
school within a public school building and the implementation of
and compliance with the building usage plan ... may be appealed
to the commissioner pursuant to section three hundred ten of this
chapter.
A.11310 § 15 at p.9:33-43 (emphasis added).
Respondents argue that "may" does not mean "may"; that "may" really means "must";
and that this Court, in effect, should rewrite the language of the statute so that it reads "may be
appealed only to the commissioner." Opp. Mem. at 3-7. No support exists in the legislative
history for such a construction. To the contrary, the legislative history supports a construction
that "may" is permissive, not mandatory.
For example, the Assembly Memorandum in Support of Legislation for A.1131 0 (the
"Assembly Memo") includes the following statement: "An expedited appeal may be made
regarding the determination to locate or co-locate a charter school in a public school building and
the implementation of and compliance with a building utilization plan." Assembly Memo at 2
(emphasis added); accord, Governor's Program Memorandum #269.2
In the legislative debate on the 2010 Amendment, neither a single Member of the
Assembly nor a single State Senator suggested - let alone stated - that the language clarifying
that a co-location determination by PEP may be appealed to the commissioner divested the
1 For the convenience of the Court, a true and correct copy of each of the following documents is submitted
herewith: A.11310; the Assembly Memorandum in Support of Legislation; the 2010 Legislative Annual relating to
Chapter 101 of2010; the Assembly Debate Transcripts; and the Senate Debate Transcripts.
2 The exact same language appears also in the Senate Memo.
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courts of jurisdiction to hear challenges to such determinations through an Article 78 proceeding.
See generally, Assembly Transcripts and Senate Transcripts. Such silence is especially
instructive given that the Legislature was well aware of the Mulgrew decision, and recognized
the critical role the courts play in ensuring that these Respondents comply with the letter and
purpose of the Education Law.
Past behavior is a pretty good indicator of future behavior[,]
and the attempt, the very noble attempt, to put in place a process
that would force a public process [with] more transparency in the
co-location is reminiscent, to me, of the same type of process that
was put in place in our school governance around the issue of
school closures. Communities indicated that there were 19 schools
that were being closed without any real process. The Department
of Education said, "Oh, no, no, no. We followed every step, we
had these hearings." [PEP, the DOE, and the Chancellor] were
taken to court, and the [Mulgrew] court rejected as a sham - as an
outright sham - the process that was engaged in by the Department
of Education and voided those closures.
I believe we are likely to see the same [with] forced co-
locations.
Assembly Tr. at 106 (Remarks of Member of Assembly Glick).
Apparently aware they lack any support in the 2010 Amendment's legislative history,
Respondents ignore it completely and instead argue that principles of statutory construction
allow this Court to re-interpret "may" to mean "must." Opp. Mem. at 7 & n.3. Respondents
conveniently ignore the cases more on point that hold "may" is permissive and means "may."
For example, exactly three months ago, the Fourth Department addressed whether the
Supreme Court lacked jurisdiction over an Article 78 proceeding where, as here, the petitioner
filed that proceeding without first pursuing an administrative appeal. As here, the municipal
respondents in that case argued that the "may appeal administratively" language of the governing
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statute was mandatory, and that petitioner thus failed to exhaust its administrative remedies. See
Opp. Mem. at 3-7. The Fourth Department rejected both contentions.
Contrary to the further contention of respondent, the court
properly denied its motion to dismiss the petition on the ground
that petitioners failed to exhaust their administrative remedies.
Buffalo City Code § 511-125(B), which pertain to the Zoning
Board of Appeals, provides: "In case it is alleged by an appellant
that there is error of misinterpretation in any order, requirement,
decision, grant or refusal made by ... [an] administrative official
having authority to issue licenses or permits in the carrying out of
enforcement of the provisions of '" chapter [511], an appeal may
befiled in the manner hereinbefore specified and a decision shall
be made by the [Zoning] Board of Appeals" (emphasis added).
Because the language of that provision is permissive rather than
mandatory, petitioners were not required to file such an appeal
[with the ZBA].
Custom Topsoil, Inc. v. City a/Buffalo, 81 A.D.3d 1363, 1365 (4th Dept 2011)(ellipses, brackets,
and standard italics in original; bold italics added).
The First Department rejected similar contentions, along with the "primary jurisdiction"
argument, almost two decades ago.
Even though administrative action is often desirable, resort to suchaction is not a prerequisite to litigation in court. The statute is
clearly couched in permissive terms, providing in pertinent part
that any person "may file" with the commission a complaint
setting forth alleged violations of the Shipping Act (US Code, tit
46, § 821, subd [aD. Exhaustion of administrative remedies is
thus not a prerequisite to this action. This is especially true
where, as here, the questions involved are generally legal ones ....
Where the technical expertise and special discretion of the
commission are not otherwise required, a court is competent to
make a determination of a nontechnical nature based on an
uncomplicated set of facts. This renders inapplicable the doctrineof primary administrative jurisdiction.
Triomphe Disc Corp. v. Chilean Line, 93 A.D.2d 228, 231 (1st Dept 1983) (emphasis added).
In advancing their "may means must" construction, Respondents also ignore the first
clause of the "may appeal" language: "Notwithstanding any provision to the contrary .... "
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A.11310 § 15 at p.9:33. In other words, prior to the 2010 Amendment, there apparently was
either a concern or belief that PEP determinations regarding co-locations could not be appealed
to the commissioner pursuant to Education Law § 310. The 2010 Amendment provided that
alternative.
Rather than view an appeal to the commission as an alternative, however, Respondents
argue the 2010 Amendment made it the exclusive means to challenge a PEP determination
regarding co-locations of charter schools. Opp. Mem. at 3-7. Respondents are wrong.
The "co-location process" imposed upon the Respondents by the 2010 Amendment was
intended to enhance parental and community involvement in the co-location determination.
"This legislation creates, we think, enough of a plan, a building plan and a consultation process
with parents, that it will make this kind of transition smoother and easier and allow for true
parental involvement .... " Assembly Tr. at 73 (Remarks of Member of Assembly Nolan). That
process must include the ability to challenge its outcome, as demonstrated by Mulgrew. The
process, therefore, shows the remedial nature of the applicable portions of the 2010 Amendment.
[A] remedial statute [] is to be liberally construed in favor of
affording judicial review (see, Matter of Great E. Mall v. Condon,
36 N.Y.2d 544, 548; Matter of Lieberman v. Johnson, 60 A.D.2d
933,934). Therefore, we should not read into the Purcell Act by
implication any legislative intent to remove the traditional
jurisdiction of Supreme Court to review real property tax
assessments under Real Property Tax Law article 7.
Delaware &Hudson Railway Co. v. McDonald, 126 A.D.2d 29,34 (3d Dept), appeal dismissed,
70 N.Y.2d 693 (1987)(emphases added)(reversing dismissal of petition for lack of subject matter
jurisdiction). As in Delaware &Hudson, this Court should not read into the 2010 Amendment
"by implication [a] legislative intent to remove the traditional jurisdiction of the Supreme Court."
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Finally, the construction urged by Respondents implicates serious issues of due process
and equal protection. The "may appeal to the commissioner" language applies only to those co-
location determinations made by PEP and affecting the City School District.In
other words, co-
location determinations made by any other school board in the State of New York may be
challenged in Supreme Court by an Article 78 proceeding. This Court cannot construe the 2010
Amendment as preserving judicial review for some New Yorkers, but denying it to those who
live with the City of New York.
B. This Court Retains Jurisdiction over Challenges Questioning Violation of Statutes
Furthermore, even assuming arguendo the 2010 Amendment vested exclusive original
jurisdiction of certain appeals in the Commissioner, Respondents concede such exclusivity does
not extend to challenges "involving only questions of law, where the issue is whether school
officials acted in violation of statute." Opp. Mem. at 6 (citing Lazette v. Bd. ofEduc., 35 N.Y.2d
272,278 (1974)). This Article 78 proceeding involves only such questions, and raises precisely
that issue.
C. The Commissioner Lacks Jurisdiction over Non-Education Law Questions
Moreover, one of the questions oflaw raised by the Verified Petition is whether
Respondents complied with the State and City Environmental Quality Review Act (respectively,
"SEQRA" and "CEQRA"). The Commissioner admits he lacks jurisdiction to hear and decide
challenges that go beyond issues of compliance with the Education Law.
Are there some grievances the Commissioner will not decide?
Yes, the Commissioner will not decide certain disputes. For example, the
Commissioner has no authority to decide alleged violations of the Open
Meetings Law or Freedom ofInformation Law. Thus, the Commissioner
will not decide claims that a school district failed to hold an open meeting
or wrongfully refused a request for documents. Such claims must instead
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be brought before a court. Moreover, the Commissioner has no authority
to award money damages.
Frequently Asked Questions Concerning Appeals to the Commissioner of Education ("FAQ"),
Question No. 14 (emphasis added), available at http://www.counse1.nysed.gov/appeals/faqs.htm.
Respondents concede this Article 78 proceeding raises issues unrelated to the Education
Law. Opp. Mem. at 28-30. Those issues are beyond the purview of the Commissioner.
Accordingly, "such claims must instead be brought before a court."
D. The Commissioner Lacks Authority to Issue a Stay
The Commissioner admits he lacks authority to issue a stay in appeals involving PEP
determinations to co-locate a charter school in a public school building.
Can I request temporary relief while my appeal is pending?
Except for appeals involving New York City charter school
location/co-location and building usage plans (see Question 3), a
petitioner may request a stay order in the petition. Please refer to
Part 276 of the Commissioner's regulations. The Commissioner,
in his discretion, determines whether or not a stay order should be
issued.
FAQ, Q. No. 17 (emphasis added), available at http://www.counse1.nysed.gov/appeals/faqs.htm.
As Respondents have known since before the commencement of this Article 78
proceeding, Petitioners have reserved their right to seek preliminary injunctive relief to prevent
Respondents from performing any construction at the Brandeis Campus to accommodate the co-
location of SACS. That construction now is scheduled to begin May 13, 2011, and Petitioners
intend to seek a stay to enjoin such work. Given that the Commissioner concedes he has no
authority to grant such a stay, Petitioners would be before this Court in any event.
* * * *
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Accordingly, for any or all of the foregoing reasons, Petitioners were not required to
challenge PEP's determination to co-locate SACS in the Brandeis Campus through an appeal to
the Commissioner; were not required to exhaust their administrative remedies prior to
commencing this Article 78 proceeding; and properly invoked the jurisdiction of this Court.
II.
RESPONDENTS FAILED TO COMPLY WITH
THE EDUCATION LAW, THE CHANCELLOR'S
REGULATIONS, AND THE PEP BY-LAWS
The Verified Petition explains at great length and in great detail the multiple failures by
Respondents to comply with the provisions of the Education Law, the Chancellor's Regulations,
and the PEP By-Laws. Respondents concede the instances of non-compliance, but argue they
nonetheless complied "enough."
The arrogance reflected in that argument ignores the "bargain" underlying the passage
and enactment of the 2010 Amendment: the "cap" on the number of charter schools in the State
(and City) will be raised significantly in exchange/or a more rigorous process of public notice
and public involvement surrounding any proposed co-location, especially in the City School
District. Assembly Tr. at 73. That is the reason the Mulgrew court determined correctly that
Respondents must satisfy the rigorous standard of "strict compliance." Respondents make no
attempt to demonstrate they satisfied that standard. See Opp. Mem. at 11-28.
Itmakes perfect sense to apply the strict compliance standard to co-locations of charter
schools, and not only for the reasons articulated clearly in Mulgrew. In essence, the co-location
of a charter school is akin to an eviction, in that it denies current students use of a portion of the
public school building. Itcannot be questioned whether strict compliance is the standard utilized
in eviction proceedings. MSG Pomp Corp. v. Doe, 185 A.D.2d 798, 799-800 (l st Dept 1992).
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Even assuming arguendo that "substantial" compliance is the appropriate standard,
Respondents have failed to meet it. For example, Respondents substitute soliciting feedback
from principals for involving and considering feedback from the School Leadership Teams, and
substituted filing the EIS and BUP with principals for the statutorily required filing with SLTs.
Opp. Mem. at 14, 24. Although principals are mandatory members of SLTs, they are not the
totality of the SLTs. Indeed, they are employees and agents of the DOE.
The Chancellor and DOE now admit the enrollment figure in the EIS was understated by
more than ten (10%) percent. Opp. Mem. at 15 & n.6. Furthermore, they admit also they
knowingly omitted from enrollment figures those students deemed "long term absences." Id. at
15. Moreover, they never advised the public or PEP of their understatements or omissions. The
PEP decision, therefore, was premised on incomplete and inaccurate information.
Respondents admit also that the Notice filed on December 17,2010 did not contain the
statutorily-required minimum information. Opp. Mem. at 25. They claim a late-filed
amendment cured the admitted defect. That is not compliance.
Perhaps most offensive, especially given the charter school obligation to educate English-
language learners, is Respondents' argument that its admitted failure to publish the original
Notice in Spanish is not "an issue" because "the PEP Notice does not fall clearly within the
Language Access Goals of the DOE Language Access Plan." Opp. Mem. at 26-27. So much for
robust outreach to the community.
These are but some examples of the effort by Respondents to change the facts after the
final bell. Petitioners respectfully refer the Court to its Verified Reply and supporting affidavit.
Respondents have not complied, strictly or substantially, with their statutory obligations.
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CONCLUSION
For the foregoing reasons, as well as on the Verified Petition and Verified Reply,
Petitioners respectfully request that the Court issue a judgment pursuant to CLPR Article 78
(1) annulling the vote of the PEP to co-locate SACS into the Brandeis Campus; (2) declaring the
PEP vote null and void; (3) directing or ordering Respondents to comply with their obligations
under Articles 52-A and 56 of the Education Law, the Chancellor's Regulation A-190 and the
State and City Environmental Quality Review Acts; (4) enjoining permanently the SACS co-
location in the Brandeis Campus; and (5) for such other and further relief in Petitioners' favor as
this Court may deem just and proper.
Dated: Garden City, New York
May 10, 2011
PHILLIPS NIZER LLP
ctor
Marc Andrew Landis
Meagan A. Zapotocky
Attorneys for Petitioners
666 Fifth Avenue
New York, New York 10103-0084
(212) 977-9700
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