1149190.9

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- x

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, et al.,

Plaintiffs,

-against-

THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor of the City School District of the City of New York,

Defendants,

- and -

UPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of infants THOMAS MOREY and CLAIRE MOREY, et al.,

Intervenor-Defendants.

: : : : : : : : : : : :

-------------------------------------------------------------------- x

Index No. 107173/11

IAS Part 12

(Feinman, J.)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

PHILLIPS NIZER LLP 666 Fifth Avenue New York, NY 10103 (212) 977-9700 Attorney for Plaintiffs

Of Counsel: Jon Schuyler Brooks Marc Andrew Landis Elizabeth A. Adinolfi

FILED: NEW YORK COUNTY CLERK 07/12/2011 INDEX NO. 107173/2011

NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 07/12/2011

i 1149190.9

TABLE OF CONTENTS Page

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................3

ARGUMENT...................................................................................................................................6

I. DEFENDANTS MAY NOT REVISE THE ORIGINAL NOTICE, EIS OR BUP AFTER THE FEBRUARY PEP VOTE ..............................................................................8

A. THE PRINCIPLE OF FINALITY PRECLUDES THE REVISIONS ....................8

B. THE EDUCATION LAW PRECLUDES THE REVISIONS...............................11

II. DEFENDANTS MAY NOT PUBLISH A REVISED EIS AND BUP LESS THAN SIX MONTHS PRIOR TO THE START OF THE SCHOOL YEAR.................13

III. THE REVISED EIS IMPERMISSIBLY IMPACTS A SCHOOL THAT WAS NOT IDENTIFIED IN THE ORIGINAL EIS...................................................................16

IV. DEFENDANTS DID NOT COMPLY WITH APPLICABLE NOTICE REQUIREMENTS.............................................................................................................20

CONCLUSION..............................................................................................................................22

1149190.9

ii

TABLE OF AUTHORITIES

CASES Atchison, T. & S. F. Ry. Co. v. Love, 99 P. 1081 (Sup. Ct. Okla. 1909)........................................15 Belgarde v. Kocher, 215 A.D.2d 1002 (3d Dep't 1995) ............................................................9, 10 Brown v. SMR Gateway 1, LLC, 22 Misc. 1139, 2009 WL 806792 (Sup. Ct. Kings Co. March 26, 2009).......................................................................................................................16, 17 Browne v. City of New York, 213 A.D. 206, 211 N.Y.S. 306 (1st Dep't 1925) .............................11 Carl Needham, Inc. v. Camilleri, 533 P.2d 765 (Sup. Ct. Nev. 1975) ..........................................15 Evans v. Monaghan, 306 N.Y. 312 (1954) ......................................................................................8 Greystone Hotel Corp. v. Coster, 275 App. Div. 807 (1st Dep't 1949)...........................................9 Heben v. West, 04-0642 (Sup. Ct. Ulster Co. June 16, 2004), aff'd 803 N.Y.S.2d 242 (3d Dep't 2005).....................................................................................................................................11 Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.2d 13 (2d Dep't 2009) ........................16 Kurcsics v. Merchants Mut. ins. Co., 49 N.Y.S2d 451 (1980) ......................................................14 LightHouse Pointe Prop. Assocs. LLC v. New York State Dep't of Environ. Conservation, 14 N.Y.3d 161, 176 (2010) ............................................................................................................14 Madison-Oneida Board of Cooperative Edu. Svcs. v. Mills, 4 N.Y.3d 51, 59 ..............................14 Moore v. Gourd, 31 A.D.3d 1075, 819 N.Y.S.2d 206 (3d Dep't 2006)...........................................9 Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 415 (1st Dep't 2010)..............................................10, 21 439 East 88 Owners Corp. Tax Com’n of City of New York, 6 Misc.3d 1014, 800 N.Y.S.2d 346..................................................................................................................................11 Preston v. Coughlin, 164 A.D.2d 101 (3d Dep't 1990) .............................................................9, 10 Matter of Rahman v. Coughlin, 112 A.D.2d 591 (3d Dep't 1985)...................................................9 Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270, 285 (2009) ...........................................14 Tooly v. Town of Wilna, 148 Misc. 611, 266 N.Y.S. 177 (Sup. Ct. Jefferson Co. 1933) ..............11 Williams v. Hylan, 126 Misc. 807, 215 N.Y.S. 101 (Sup. Ct. New York Co. 1926).....................11

1149190.9

iii

Wykoff v. W.H. Wheeler & Co., 139 P. 319 (Sup. Ct. Okla. 1914)................................................15

STATUTES

Educ. L. § 2853 [3](a-3)(1)..............................................................................................................6 Educ. L. § 2590-h[2-a](d-1).......................................................................................................8, 16 Educ. L. § 2590-h[2-a](a) .....................................................................................................6, 8, 11, 12, 13, 14, 20 Educ. L. §§ 2590-h[2-a](c) ....................................................................................................6, 8, 12 Educ. L. §§ 2590-g[1](h), ................................................................................................................6 Educ. L. §§ 2590-g[8](a) ...............................................................................................................10

1149190.9

Plaintiffs, by their attorney Phillips Nizer LLP, submit this memorandum of law in

support of their motion for partial summary judgment (the “Motion”).

PRELIMINARY STATEMENT

On June 27, 2011, Defendant the Board of Education of the City School District of the

City of New York (n/k/a the Panel for Educational Policy) (“PEP”) voted to approve a proposal

(the “June PEP Vote”) presented by its co-Defendants, the Chancellor of the City School District

(the “Chancellor”) and the New York City Department of Education (“DOE”), to co-locate the

Success Academy Charter School (“SACS”), a new charter school that will serve kindergarten

and elementary school children, into the Brandeis Educational Campus (M470) (the “Brandeis

Campus”), a stand-alone public school building then housing six high schools, commencing with

the 2011-2012 school year (the “Co-Location Proposal”). The June PEP Vote was the second

time the Chancellor and/or DOE presented the Co-Location Proposal to PEP during the 2010-

2011 school year, and the second time PEP voted to approve it.

PEP first voted to approve the Co-Location Proposal on February 2, 2011(the “February

PEP Vote”). The February PEP Vote was the culmination of the statutorily-mandated process

applicable to the Proposed Co-Location, and is a final determination by PEP.

On April 8, 2011, the Plaintiffs herein challenged the validity of the February PEP Vote

by commencing an Article 78 proceeding against the Defendants herein. Steglich et al. v. Board

of Education et al., Index No. 104300/2011 (Sup. Ct. New York Co.) (“Steglich I”). Among

other things, the Steglich I Verified Petition alleged the documents upon which the February PEP

Vote was based – the December 17, 2010 Notice (“Notice”) issued by PEP, and similarly-dated

Educational Impact Statement (“EIS”), and Building Utilization Plan (“BUP”) issued by the

Chancellor and/or DOE – failed to comply with the requirements of the Education Law and/or

corresponding regulations.

- 2 - 1149190.9

For almost two months, PEP, the DOE, and the Chancellor actively opposed the Verified

Petition filed in Steglich I: they filed a Verified Answer; unsuccessfully opposed an application

by the Steglich I Petitioners (Plaintiffs herein) for a temporary restraining order (“TRO”);

attempted to vacate that TRO; and supported the efforts of Steglich I Intervenor-Respondents

(Intervenor-Defendants herein) to dismiss the Verified Petition.

Defendants then decided they faced a real risk of losing in Steglich I, so, on June 1, 2011,

they unilaterally declared they were no longer relying upon the February PEP Vote to implement

the Co-Location Proposal, and were abandoning the Notice, EIS and BUP. Five days later, on

June 6, 2011, PEP published a so-called revised Notice of the Co-Location Proposal (“Revised

Notice”), and the Chancellor and/or DOE published so-called revised versions of the EIS and

BUP (“Revised EIS” and “Revised BUP,” respectively).

This action ensued, seeking among other things a declaration that:

• the Chancellor and/or DOE lacked authority to revise the EIS and BUP after the

February PEP Vote, rendering the Revised EIS and Revised BUP null and void;

• even if they had such authority, the Chancellor and/or the DOE failed to exercise

it timely according to the Education Law, rendering the Revised EIS and Revised

BUP null and void;

• even if they exercised it timely, they failed to so properly, by including in the

Revised EIS an impact upon a school not mentioned in the original EIS,

rendering the Revised EIS and Revised BUP null and void;

• even if they properly revised the EIS and BUP, PEP nonetheless failed to comply

with the statutorily-mandated notice prior to the June PEP Vote, rendering the

Revised EIS and Revised BUP null and void; and

- 3 - 1149190.9

• as a result of any one of the above-mentioned failures, the June PEP Vote is null

and void.

The Motion seeks summary judgment as to each of these issues, and only these issues.

As explained below in greater detail, the Motion should be granted, and the Defendants

should be enjoined permanently from co-locating SACS into the Brandeis Campus for the 2011-

2012 school year.

STATEMENT OF UNCONTESTED FACTS

The Motion is predicated upon the following undisputed and indisputable facts.

1. On December 17, 2010, Defendant the Board of Education of the City School

District of the City of New York, n/k/a the Panel on Educational Policy (“PEP”) published a

document in English titled “Public Notice” (the “Notice”) concerning “The Proposed Co-

location of a New Public Charter School, Success Academy Charter School [(‘SACS”)], with

Existing Schools in the Brandeis Educational Campus [(“Brandeis Campus”)] .” Among other

things, the Notice specified that PEP would consider the proposal to co-locate SACS into the

Brandeis Campus (the “Co-Location Proposal”) at a public meeting to be held on February 1,

2011;

2. On December 17, 2010, Defendants Chancellor of the City School District of the

City of New York (the “Chancellor”) and/or New York City Department of Education (“DOE”)

published documents titled “Educational Impact Statement: The Proposed Co-location of a New

Public Charter School, Success Academy Charter School, with Existing Schools in the Brandeis

Educational Campus” (“EIS”) and “Building Utilization Plan” (“BUP”) relating to the Co-

Location Proposal;

3. On December 22, 2010, PEP published a document in English and Spanish titled

“Amended Public Notice” concerning “The Proposed Co-location of a New Public Charter

- 4 - 1149190.9

School, Success Academy Charter School, with Existing Schools in the Brandeis Educational

Campus”;

4. On January 25, 2011, Defendants Chancellor and DOE held what they

characterized as being the joint public hearing required by Education Law § 2590-h[2-a](d) (the

“Joint Hearing”) relating to the Co-Location Proposal;

5. At the Joint Hearing, the Chancellor and/or DOE received public input regarding

the Co-Location Proposal, including comments addressing purported defects and deficiencies in

the Notice, the EIS, and the BUP;

6. On January 31, 2011, PEP published the public comment analysis (“Public

Comment Analysis”) relating to the Co-Location Proposal;

7. As reflected in the Public Comment Analysis, the Chancellor and/or DOE

received public input relating to the Co-Location Proposal prior to the February 1, 2011 PEP

meeting, including comments addressing defects and deficiencies in the Notice, the EIS, and the

BUP;

8. Notwithstanding the public input received by the Chancellor and/or DOE during

either the Joint Hearing or otherwise (as reflected in the Public Comment Analysis), neither the

Chancellor nor DOE attempted to revise the EIS or BUP prior to the February 1, 2011 PEP

meeting;

9. On February 1, 2011, PEP commenced a meeting at which, among other things, it

considered the Co-Location Proposal, including the EIS and BUP;

10. On February 2, 2011, PEP voted to approve the Co-Location Proposal (the

“February PEP Vote”);

- 5 - 1149190.9

11. On April 8, 2011, Plaintiffs herein commenced an Article 78 proceeding against

Defendants herein (“Steglich I”) by filing a Verified Petition challenging the February PEP Vote;

12. On April 25, 2011, Defendants herein filed their Verified Answer in Steglich I

opposing the Verified Petition;

13. On May 10, 2011, Plaintiffs herein filed their Verified Reply in Steglich I;

14. On June 1, 2011, in a letter to counsel for Plaintiffs herein, Defendants herein (a)

effectively declared unilaterally they were abandoning the EIS and BUP by stating that

Defendants had decided to revise the EIS and BUP (although they believed the notice, hearing,

and disclosure process that culminated in the February PEP vote satisfied the requirements of the

Education Law), and (b) represented they no longer would rely upon the February PEP Vote to

implement the co-location of SACS into the Brandeis Campus;

15. On June 2, 2011, during a conference in Steglich I, counsel for Defendants herein

reiterated in open court the declaration and representation made in their June 1, 2011 letter;

16. On June 6, 2011, Defendant PEP published a document in English titled “Revised

Notice” concerning “The Revised Proposed Co-location of a New Public Charter School,

Success Academy Charter School, with Existing Schools Louis D. Brandeis High School

(03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning

Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School

(03M417) in the Brandeis Educational Campus” (the “Revised Notice”);

17. On June 6, 2011, Defendants Chancellor and/or DOE published documents titled

“Revised Educational Impact Statement: The Revised Proposed Co-location of a New Public

Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis

High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global

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Leaning Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High

School (03M417) in the Brandeis Educational Campus” (“Revised EIS”) and “Revised Building

Utilization Plan” (“Revised BUP”);

18. On June 13, 2011, Defendant PEP published a document in English titled

“Amended Notice” concerning “The Revised Proposed Co-location of a New Public Charter

School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School

(03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning

Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School

(03M417) in the Brandeis Educational Campus” (the “Amended Revised Notice”);

19. On June 16, 2011, Defendant PEP completed the translation of the Amended

Revised Notice into Spanish, and thereafter published the same;

20. On June 20, 2011, the Plaintiffs filed their Complaint seeking a Declaratory

Judgment that, inter alia, the Revised EIS and Revised BUP were nullities;

21. On June 27, 2011, PEP relied upon the Revised EIS and Revised BUP to approve

for the second time the Co-Location Proposal;

22. On June 30, 2011, Plaintiffs filed their Amended Complaint seeking, inter alia, to

have the June 27, 2011 PEP vote declared a nullity.

See Plaintiffs’ Statement of Uncontested Facts.

ARGUMENT

Overview

The co-location of charter schools in public school buildings, especially within the City

School District of the City of New York, is governed by a detailed process imposed by the State

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Education Law. See, e.g., Educ. L. §§ 2590-g[1](h), 2590-g[8](a)-(c), 2590-h[2-a], 2853.1

Consistent with general principles of administrative law, that process allows the Chancellor

and/or DOE to revise a co-location proposal until the time it is presented to and voted upon by

PEP, but prohibits them from revising it after the PEP vote, the agency’s final determination.2

1 First, the Chancellor must determine whether a given school or, if it houses multiple schools, school building (collectively, “School”) is “under-utilized.” Second, if the Chancellor determines under-utilization exists, the Chancellor then may propose such a significant change in utilization of the School, including the possibility of a co-location of another school, such as a charter school. For each such proposal, the Chancellor must

prepare an educational impact statement [“EIS”] regarding any proposed school closing or significant change in school utilization, including the phase-out, grade reconfiguration, re-siting, or co-location of schools, for any public school located within the city district.

Educ. L. § 2590-h[2-a](a).

If the significant change of use proposed by the Chancellor is the co-location of a charter school into an existing School, the EIS also must include a statement of the rationale for the co-location in the affected School, as well as a BUP. Educ. L. §§ 2853 [3](a-3)(1), [3](a-3)(3); Chancellor’s Reg. A-190 § II.A.2.a(i)-(ii).

The EIS, together with the BUP, must “be made publicly available, including via the city board’s official

internet website, and a copy shall also be filed with the city board, the impacted community council, community boards, community superintendent, and school based management team at least six months in advance of the first day of school in the succeeding school year.” Educ. L. §§ 2590-h[2-a](c); see also Educ. L § 2853[3](a-3)(5); Chancellor’s Reg. A-190 § II.A.3.

The Chancellor, the Community Education Council (“CEC”) and the School Leadership Team (“SLT”)

must then hold a joint public hearing about the EIS and the BUP (the “Joint Hearing”) on a date no less than thirty days, and no more than forty-five days, after those documents were filed properly with all designated entities. Educ. L. § 2590-h[2-a](d).

The Chancellor must submit all significant change of utilization proposals, including co-location proposals,

to PEP. Educ. L. §§ 2590-g[1](h), 2590-h[2-a](e); Chancellor’s Reg. A-190 § II.C.1. Prior to considering a significant change of utilization proposal, PEP must undertake a public review process to afford the public an opportunity to submit comments on the proposed items, and provide public notice at least forty-five days in advance of any city board vote on such item. Educ. L. § 2590-g[8](a); Chancellor’s Reg. A-190 § II.C.2; Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York (“PEP By-Laws”), § 2.5.1(h) at pp. 7-8.1 Where the vote is on a revised proposal, public notice must be provided at least fifteen days in advance of any vote on the revised proposal. Educ. L. § 2590-g[8](b); Chancellor’s Reg. A-190 § II.C.3; PEP By-Laws § 2.5.2 at p. 8.

Following the public review process, but prior to any PEP vote on a significant change of utilization

proposal, PEP must make available to the public “an assessment of all public comments … received prior to twenty-four hours before the [PEP] meeting at which such item is subject to a vote” (“Public Comment Analysis”). Educ. L. § 2590-g[8](c)(i)-(ii); Chancellor’s Reg. A-190 § II.C.4. 2 Changes made after a PEP vote are not “revisions”; rather, they form the basis of a new proposal, and the process mandated by the Education Law must start anew.

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The Revised EIS and Revised BUP for the Co-Location Proposal were published more than four

months after the February PEP Vote and, therefore, are invalid, null and void.

Revisions to a co-location proposal, including its EIS and BUP, are invalid even if made

prior to the PEP vote where (as here) they are not made also at least six months prior to the first

day of the next succeeding school year. Educ. L. § 2590-h[2-a](d-1) (referencing Educ. L. §

2590-h[2-a](c)). Furthermore, even timely revisions to a co-location proposal are invalid where

(as here) the revisions to the EIS disclose an impact to a school not included in the original EIS.

Educ. L. § 2590-h[2-a](d-1).

Finally, even otherwise timely and valid revisions to a co-location proposal are invalid

where (as here) PEP fails to provide proper notice of the revisions and its intent to consider and

vote upon the co-location proposal as revised.

The revisions of the Co-Location Proposal violated each of those mandatory standards.

The violation of any one of them renders the June PEP Vote null and void. Consequently, the

June PEP Vote must be annulled and, given the legal and factual impossibility of approving the

Co-Location Proposal for the 2011-2012 school year, the Defendants must be enjoined

permanently from attempting to do so.

I.

DEFENDANTS MAY NOT REVISE THE ORIGINAL NOTICE, EIS OR BUP

AFTER THE FEBRUARY PEP VOTE

A. THE PRINCIPLE OF FINALITY PRECLUDES THE REVISIONS

The February PEP Vote was the final determination by an administrative agency of the

Co-Location Proposal. Educ. L. §§ 2590-g[1](h), 2590-h[2-a](e), 2853[3](a-3)(3), 2853[3](a-5).

New York has long-recognized the principle of finality of administrative decisions. Evans v.

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Monaghan, 306 N.Y. 312, 323-24 (1954) (absent new evidence, agency may not re-open final

determination).

Once the administrative process has been exhausted the matter is then ripe for judicial review and respondents could not unilaterally reconvene the matter without express statutory or regulatory authority permitting them to do so.

Preston v. Coughlin, 164 A.D.2d 101, 102 (3d Dep’t 1990) (emphasis added) (citing, inter alia,

Barnert v 41 Fifth Ave. Assocs., 158 A.D.2d 289, 290 (1st Dep’t 1990) (DHCR lacked authority

to modify its prior determination)); accord, Greystone Hotel Corp. v. Coster, 275 App. Div. 807

(1st Dep’t 1949) (commission lacked authority “to reconsider its former determination”).

The principle of finality of administrative decisions prohibits agencies from attempting to

“cure” defects and/or deficiencies in the procedure underlying a final determination once that

final determination has been issued. Moore v. Gourd, 31 A.D.3d 1075, 1076, 819 N.Y.S.2d 206,

207 (3d Dep’t 2006) (committee “was without authority to sua sponte order a rehearing to cure a

procedural defect after a final determination had already been made and this appeal was

pending”); Preston, 164 A.D.2d at 103 (“authority [to reconsider] does not extend to situations

where the agency seeks ‘only to cure procedural defects that could and should have been cured

during the original administrative review’”) (citation omitted); Matter of Rahman v. Coughlin,

112 A.D.2d 591, 592 (3d Dep’t 1985) (in the absence of express statutory authority, agency

could not unilaterally order new proceeding to remedy procedural error in the old one). It

likewise prohibits them from attempting to “cure” defects and/or deficiencies in the proof upon

which the final determination was made. See Belgarde v. Kocher, 215 A.D.2d 1002, 1003 (3d

Dep’t 1995) (denying Board request to remand matter so that further evidence could be presented

to support its determination and instead annulling determination).

- 10 - 1149190.9

Steglich I alleged defects and deficiencies in both the procedure and the proof underlying

the February PEP Vote. Indeed, Defendants themselves acknowledge the purpose of the revised

documents is to attempt to cure the deficiencies in their proof, i.e., the original EIS and BUP.

See, e.g., Affirmation of Defendants’ Counsel in Opposition to Plaintiffs’ Motion for a

Temporary Restraining Order, dated June 21, 2011, ¶ 3 (“It is our contention that [the issuance of

the Revised EIS and Revised BUP] has remedied any purported defects in the original EIS and

BUP, thereby rendering Steglich I moot.”). That the Revised EIS and Revised BUP were issued

in order to correct the factual and analytic deficiencies in the original documents is evident: the

original EIS consists of only fifteen pages, whereas the Revised EIS is twenty; the original BUP

is only thirteen pages, whereas the revised BUP is twenty-seven.

The Education Law contains no express authority allowing the Chancellor and/or DOE to

override the principle of finality of votes by PEP on co-location proposals.3 In the absence of

such express authority, the principle of finality of administrative decisions prohibits re-opening

final determinations or “curing” defects in the procedure or proof that led to such determinations.

See Matter of Belgarde v. Kocher, 215 A.D.2d 1002, (3d Dep’t 1995) (final determination gives

rise to preclusive effect of res judicata; determination must be annulled on appeal to court to

allow renewal of administrative process).

Defendants here “ran afoul of the principle of finality of administrative determinations”

by purporting to revise the original Notice, EIS and BUP after the February PEP Vote. Preston,

164 A.D.2d at 102-03. Consequently, the June PEP Vote – based upon the Revised Notice,

Revised EIS and Revised BUP – was an ultra vires action, and it should be annulled. See

3 To the contrary, the Education Law limits their ability to revise a co-location proposal and the EIS upon which it is based to the period after they “receiv[e] public input” through the Joint Hearing and the “public review process,” each of which occurs prior to a PEP vote. Educ. L. §§ 2590-g[8](a) (public review process), 2590-h[2-a](d-1) (public input).

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Mulgrew v. Board of Ed., 75 A.D.3d 412, 415 (1st Dep’t 2010) (Supreme “[C]ourt properly

annulled the PEP votes”). Once the June PEP Vote is annulled, this Court must enjoin its

implementation, i.e., the co-location of SACS into the Brandeis Campus for the 2011-2012

school year. See Browne v. City of New York, 213 A.D. 206, 211 N.Y.S. 306 (1st Dep’t 1925)

(reinstating injunction enjoining the city of New York and its officials from using public funds

that it had appropriated for the establishment and operation of a municipal bus line where city

has not received such legislative authority, and its action in maintaining and operating buses on

the streets of the city was therefore ultra vires and illegal); 439 East 88 Owners Corp. v. Tax

Com’n of City of New York, 6 Misc.3d 1014(A), 800 N.Y.S.2d 346 (enjoining Tax Commission

that had commenced a "supplemental process" for certain real property owners from requiring

real property owners to undergo such process as a requirement to obtain a merits review of their

tax assessments, where the process was not authorized by statute and hence was ultra vires);

Heben v. West, 04-0642 (Sup. Ct. Ulster Co. June 16, 2004) (court issued injunction prohibiting

town mayor from illegally solemnizing marriages without licenses), aff’d 803 N.Y.S.2d 242 (3d

Dep’t 2005); Tooly v. Town of Wilna, 148 Misc. 611, 266 N.Y.S. 177 (Sup. Ct. Jefferson Co.

1933) (enjoining Town from selling stone from Town quarry for other than town highway

purposes where such sales were illegal and ultra vires, although Town had entered into a contract

for such sales and had begun performing under the contract); Williams v. Hylan, 126 Misc. 807,

215 N.Y.S. 101 (Sup. Ct. New York Co. 1926) (enjoining commissioner of parks from acting

under contract he had entered with refreshment stand operator regarding use of park space where

such contract was ultra vires).

B. THE EDUCATION LAW PRECLUDES THE REVISIONS

Consistent with the principle of finality of administrative decisions, the Education Law

prohibits the Chancellor and/or DOE from revising a co-location proposal after PEP has voted

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upon it. Indeed, the applicable statute specifies the Chancellor and/or DOE may revise an EIS

only “after receiving public input.” Educ. L. § 2590-h[2-a](d-1). The administrative process

governing a proposed co-location includes only two avenues for public input: the Joint Hearing,

Educ. L. § 2590-h[2-a](d), and the “public review process” that yields the Public Comment

Analysis, id. § 2590-g[8](a). Both of those avenues must be completed before PEP votes upon a

co-location proposal. Educ. L. §§ 2590-g[8](a) (“Prior to the approval [by PEP] of any proposed

item listed in subdivision one of this section”), 2590-g[8](c) (“Following the public review

process pursuant to paragraph (a) or (b) of this subdivision but prior to voting on any proposed

item listed in subdivision one of this section, [PEP] shall make available” the Public Comment

Analysis), 2590-h[2-a](d) (“No sooner than thirty days, but no later than forty-five days

following the filing of the [EIS]”).4 It is clear, therefore, that revisions to the EIS must be made

prior to time PEP votes upon a co-location proposal.

This standard comports with the prohibition on multiple PEP votes found in Section

2590-g[8](c), which makes plain that PEP is to vote only once per school year on any given

proposed change in school utilization:

Following the public review process pursuant to paragraph (a) [pertaining to initial proposals] or (b) [pertaining to revised proposals] of this subdivision but prior to voting on any proposed item listed in subdivision one of this section [including proposed significant changes in utilization such as co-location], the city board shall make available to the public, including via the city board's official internet web site, an assessment of all public comments concerning the item under consideration received prior to twenty-four hours before the city board meeting at which such item is subject to a vote.

Educ. L. § 2590-g[8](c) (emphasis added). This language demonstrates that both an initial

proposal to co-locate a charter school, and any revisions to that proposal, must be completed

4 The PEP vote may not take place earlier than forty-five days after the EIS is properly filed. Educ. L. 2590-g[8](a).

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prior to the time PEP votes upon such proposal. Any other interpretation would lead to the

absurd result that the administrative process never would reach conclusion, and that a PEP vote

would be final only so long as the Chancellor and/or DOE decided unilaterally to treat it as such.

The revisions made by the Chancellor and/or DOE to the EIS and BUP after the February

PEP Vote violated the detailed administrative process set forth in the Education Law.

Consequently, the June PEP Vote, based upon the Revised EIS and Revised BUP, must be

annulled.

II.

DEFENDANTS MAY NOT PUBLISH A REVISED EIS AND BUP LESS THAN SIX MONTHS PRIOR TO THE START OF THE SCHOOL YEAR

Where the Chancellor and/or DOE seeks to revise a co-location proposal, the Education

Law requires them to “publish and file such educational impact statement, in the same manner

as prescribed in subparagraph (c) of this subdivision.” Educ. L. § 2590-h [2-a](d-1) (emphasis

added). “Subparagraph (c) requires that the EIS, together with the BUP, must “be made publicly

available, including via [PEP’s] official internet website, and a copy shall also be filed with

[PEP], the impacted community council, community boards, community superintendent, and

school based management team at least six months in advance of the first day of school in the

succeeding school year.” Educ. L. § 2590-h[2-a](c) (emphasis added); see also Educ. L § 2853

[3](a-3)(5); Chancellor’s Reg. A-190 § II.A.3.

According to the DOE’s website, the first day of school for all students is September 7,

2011.5 The Chancellor issued the Revised EIS and BUP just three months prior to the first day

5 The DOE’s “School Year Calendar” is available at http://schools.nyc.gov/Common/Templates/MainTemplate/CommonMainTemplate.aspx?NRMODE=Published&NRNODEGUID=%7bA3B56BCE-D6E5-44F7-8ACA-A7C1918AFF69%7d&NRORIGINALURL=%2fCalendar%2fdefault%2ehtm%3futm_source%3dParentsandFamily

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of the upcoming school year, rather than six months prior as required by Educ. L § 2590-h[2-

a](c). Because the Revised EIS and BUP were not issued “at least six months in advance of the

first day of school in the succeeding school year,” the Revised EIS and BUP cannot legally serve

as the basis for the proposed SACS co-location for the 2011-2012 school year. Educ. L. § 2590-

h[2-a](c) and (d-1).

Defendants no doubt shall direct this Court to Appeal of Battis, Decision No. 16,115

(August 2, 2010), in which the Commissioner of the State Education Department ruled that the

word “manner” in Section 2590-h[2-a](d-1) does not include Section 2590-h[2-a](c)’s timing

requirement. Any such effort will be an attempt at misdirection.

First, it is axiomatic that a court is not obligated to afford an agency’s interpretation of a

statute deference where the issue is “one of pure statutory reading and analysis, dependent only

on an accurate apprehension of legislative intent[.]” LightHouse Pointe Prop. Assocs. LLC v.

New York State Dep’t of Environ. Conservation, 14 N.Y.3d 161, 176 (2010) (quoting Kurcsics v.

Merchants Mut. ins. Co., 49 N.Y.S2d 451, 459 (1980); see also Roberts v. Tishman Speyer

Props., L.P., 13 N.Y.3d 270, 285 (2009) (court owes no deference to agency’s statutory

interpretation where interpretation does not require “specialized knowledge and understanding of

underlying operational practices or . . . and evaluation of factual data and inferences to be drawn

therefrom[.]”); Madison-Oneida Board of Cooperative Edu. Svcs. v. Mills, 4 N.Y.3d 51, 59 (“this

Court is faced with the interpretation of statutes and pure questions of law and no deference is

accorded the agency’s determination”).

Here, the Court is presented with a question of pure statutory interpretation: what is the

meaning of the word “manner” in Section 2590-h [2-a](d-1)? The SED Commissioner has no

Page%26utm_medium%3dQuickLinks%26utm_campaign%3dCalendar&NRCACHEHINT=Guest&utm_source=ParentsandFamilyPage&utm_campaign=Calendar&utm_medium=QuickLinks

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particular expertise that requires this Court to defer to his unsupported interpretation of the word

“manner” as excluding “time.”

Second, although there may be a paucity of case law in New York addressing this issue,

numerous courts in other jurisdictions have found that “manner” indeed includes “time”. See,

e.g., Carl Needham, Inc. v. Camilleri, 533 P.2d 765, 767 (Sup. Ct. Nev. 1975) (“we presume that

the phrase ‘in like manner’ refers not only to the form of such claim . . . but, as well, to the time

within which one having a claim against the deceased must file it.”); Wykoff v. W.H. Wheeler &

Co., 139 P. 319, 321 (Sup. Ct. Okla. 1914) (“as ‘manner’ is here intended to include the element

of time, “as heretofore provided” means, within the time and manner heretofore provided”);

Atchison, T. & S. F. Ry. Co. v. Love, 99 P. 1081, 1086 (Sup. Ct. Okla. 1909) (“Examining our

own statutes and the different provisions of the Constitution of this State, it is evident that in all

such provisions whenever the word ‘manner’ is used it is meant either ‘time’ or would include

‘time’.”)

Any interpretation of Section 2590-h[2-a](d-1) that excludes “time” from “manner” leads

to the absurd scenario the Court presently faces. Nothing in Appeal of Battis supports the

Commissioner’s claim that the intent of the statute was to encourage the making of revisions in

response to public comments at the expense of having a process driven, as it has been here, more

by time constraints than the merits of the actual proposal. With the school year beginning in less

than three months, Defendants are exploiting time pressure they themselves have created to push

through a controversial and unpopular co-location resulting from a flawed process.

The Revised EIS and Revised BUP do not comply with the Education Law in that they

are untimely. Consequently, the June PEP Vote, based upon the Revised EIS and Revised BUP,

must be annulled.

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III.

THE REVISED EIS IMPERMISSIBLY IMPACTS A SCHOOL THAT WAS NOT IDENTIFIED IN THE ORIGINAL EIS

Even assuming arguendo the Chancellor and/or DOE did not lack authority to revise the

EIS and BUP after the February PEP Vote, and that “manner” does not include “time,” the

Revised EIS nonetheless still fails to comply wit the Education Law because it impacts a school

not identified in the original EIS, an absolute prohibition. Educ. L. 2590-h[2-a](d-1) (“So long

as the revised proposal does not impact any school other than a school that was identified in the

initial educational impact statement,” the Chancellor may revise the EIS, subject to other

prohibitions).

The revised proposal includes Brandeis Young Adult Borough Center (03M577)

(“YABC”), a school which was not identified in the initial proposal. As a result, the Chancellor

and DOE improperly revised the EIS. Educ. L. § 2590-h[2-a](d-1). The original EIS provided

no information whatsoever about Brandeis YABC.

From their prior papers, it is evident Defendants will argue the Brandeis YABC is not a

“school.” Such a strategy ignores Defendants’ own treatment of YABCs.

Brandeis YABC serves students ages 17-21 who have completed four years of high

school and have a minimum of 17 high school credits. Students attend classes in the afternoon

and evening to make up credits and exams. They graduate with a diploma from their home high

school, but “must be fully enrolled in the YABC and cannot be simultaneously enrolled in a

traditional day school.”6 See School Allocation Memorandum No. 20, FY 11, at p. 1.7 Brandeis

6 The documents cited in this section are documents created by the DOE and are available on its website. Courts may take judicial notice of such documents. See Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.2d 13, 20 (2d Dep’t 2009) (taking judicial notice of facts from government-prepared documents and noting other cases doing the same); Brown v. SMR Gateway 1, LLC, 22 Misc. 1139(A), 2009 WL 806792, at *4 (Sup. Ct. Kings Co. March 26, 2009). 7 http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy10_11/FY11_PDF/sam20.pdf

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YABC has its own ATS database name, 03M577, see id., an allocation for a parent coordinator,

see School Allocation Memorandum No. 10, FY 11,8 and a high school code (334039) for

college applications.9 Brandeis YABC also appears on a DOE list of school library codes.10

Brandeis YABC was also allocated funds for Fiscal Year 11: computer maintenance

($188), see School Allocation Memorandum No. 31, FY 11;11 translation services ($740), see

School Allocation Memorandum No. 46, FY 11;12 and NYS textbook, library, hardware and

software ($853,207), see School Allocation Memorandum No. 20, FY 11. The DOE's

"Corrective Action for Visible PCB Ballast Leaks" last updated on June 20, 2011 lists Brandeis

YABC as part of the Brandeis campus.13

Moreover, Defendants have issued Progress Reports for YABCs beginning with the

2009-2010 school year. Brandeis YABC received an Environment grade of an F, a Performance

grade of a B, a Progress grade of a C, and an Overall grade of a C, which is a passing grade.14

According to the DOE publication Young Adult Borough Center Model: Reconnecting to

School and the Future,15 YABC programs operate between 1:00 p.m. and 9:00 p.m. Monday

through Thursday. On Fridays, staff members are available, usually between 9:00 a.m. and 5:00

p.m., for individual academic support and other work with students or special group activities.

Academic classes are scheduled between 4:00 p.m. and 9:00 p.m. Monday through Thursday. Id.

8 http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy10_11/FY11_PDF/sam10.pdf 9 https://www2.itap.purdue.edu/registrar/webserv/code/highschool.cfm?start=40301&sortby=2 10 http://schools.nyc.gov/NR/rdonlyres/0C21B5F4-FFA1-4A24-A13E-88FC2A8B3315/21469/SchoolLibraryCodes2.pdf 11 http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy10_11/FY11_PDF/sam31.pdf 12 http://schools.nyc.gov/NR/rdonlyres/C0B1BCB7-86B9-4645-A9BB-0832F74AF269/86765/sam46.pdf 13 http://source.nycsca.org/pdf/epa/CorrectiveActionforVisiblePCBBallastLeaks.pdf 14 http://schools.nyc.gov/NR/rdonlyres/86D41F8F-C339-4402-A585-92700F1913FE/0/2009_2010_YABC_PR_Results_2011_02_02.xls 15 http://schools.nyc.gov/NR/rdonlyres/D9901814-544F-4CB6-95B0-428351A8287A/0/NYCDOEYABCModel.pdf at p. 12

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“Although the core academic activities occur in the late afternoon and evening hours, the

daytime hours are productive as well. Between the hours of 1:00 p.m. and 4:00 p.m., students can

meet with program staff for individual counseling, participate in facilitated peer support groups,

attend college and career planning seminars, benefit from tutoring, and enjoy other student

activities.” Id.

Regarding facilities, Brandeis YABC is entitled to :

a. One office space for the full-time yabc Assistant Principal (ap) supervisor

(350-500 square feet);

b. In-office connections for computer, Internet, telephone, photocopier, and fax;

c. Approximately 14 classrooms shared with the day school during hours of

operation (600-750 square feet each);

d. Storage space, including closets, for books and other materials (750-1,000

square feet);

e. Access to a gym, lunchroom, and library during hours of operation;

f. Space for confidential student counseling, college preparation, programming,

and social work (1,500-2,000 square feet);

g. Library/Technology Resource Room (1,000-1,200 square feet); and

h. Basic Science Lab: classroom with sink and mobile lab (750-1,000 square

feet).

Ibid.

At the time of the original EIS and BUP, Brandeis YABC was one of only three YABCs

in Manhattan; in contrast, Brooklyn and the Bronx each have eight YABCs. See Young Adult

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Borough Centers 2011-2012.16 Brandeis YABC was included in the DOE publication Additional

Ways to Graduate: High School Diploma & GED Programs Directory (2010-2011).17 Nothing

in Additional Ways to Graduate warns potential students that the Brandeis YABC is slated to be

closed.

Brandeis YABC is a school. By closing Brandeis YABC, which received a passing grade

in Defendants’ own Progress Report, Defendants evidently are willing to sacrifice these students

in order to eliminate a potential barrier to the Brandeis Co-Location. Plaintiffs learned of

Brandeis YABC’s existence during the proceedings in Steglich I although the original EIS and

original BUP made no mention of the school or its students’ need for space. When Plaintiffs

raised the omission of this school during such proceedings, Defendants did not advise them or

the Court that Brandeis YABC was not included in the original EIS and BUP because Brandeis

YABC was closing at the end of the 2010-2011 school year. Now, however, Defendants seek to

close Brandeis YABC, presumably simply to attempt to cure another defect in their original EIS.

Tellingly, the Defendants undertook no public process before deciding to close Brandeis

YABC, despite Education Law Section 2590-h(2)(a) which requires that the Chancellor consult

with the affected community district education council before “substantially . . . reducing such an

existing school or program within a community district.” Such consultation was imperative here,

as the closing of the Brandeis YABC leaves Manhattan students with only two YABCs.

Defendants’ statement that “there are other YABC centers in Manhattan which have

sufficient capacity to serve students who might otherwise have been served in the Brandeis

Campus location,” Revised EIS at p. 5, demonstrates Defendants’ callous indifference to the

16 http://schools.nyc.gov/NR/rdonlyres/3AB9368C-9351-4205-917F-9538A762255B/0/YoungAdultBoroughCenterLocations201112.pdf 17 http://schools.nyc.gov/NR/rdonlyres/CBD45DC2-8E63-4005-8BA7-5FCEFE0A775B/0/AdditionalWays_compiledbook_web_102210.pdf at p. 74.

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needs of the Brandesi YABC students currently being served at the Brandeis Campus. With the

closure of the Brandeis YABC, the students are left with a choice of the Washington Irving

YABC, located at 40 Irving Place, and the George Washington Educational Campus YABC,

located at 549 Audubon Avenue. Defendants now are forcing students who are at significant risk

of not obtaining their high school diplomas to travel to the ends of the borough in order to have a

chance at graduating. Plainly, Defendants care more about attempting to cure defects in their

original EIS and BUP more than they care about the Brandeis YABC students and thus have not

properly considered the impact of the co-location proposal on these students, who are already in

danger of failing to graduate.

The Revised EIS impermissibly impacts a school, Brandeis YABC, not mentioned in the

original EIS and, therefore, is invalid. Educ. L. § 2590-h[2-a](d-1). Consequently, the June PEP

Vote, based upon the Revised EIS, must be annulled.

IV.

DEFENDANTS DID NOT COMPLY WITH APPLICABLE NOTICE REQUIREMENTS

Even assuming arguendo Defendants did not lack authority to revise the EIS and BUP

after the February PEP Vote, and did not fail to comply with the Education Law requirements

regarding timeliness and propriety of revisions to the EIS, the June PEP Vote nonetheless is

invalid because PEP failed to provide proper and timely notice of the June 27, 2011 meeting.

The Education Law, the Chancellor’s Regulations, and the PEP By-Laws require PEP to

issue a Notice at least fifteen days prior to the meeting at which its members will vote on

revisions to a proposed significant change of utilization of a public school building. Educ. L. §

2590-g[8](b); Chancellor’s Reg. A-190 § II.C.3; PEP By-Laws § 2.5.2 at p. 8.

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The Revised Notice was initially published only in the English language in violation of

Executive Order No. 120 § 2.d.i, the DOE Language Access Plan, and Chancellor’s Regulation

A-663 §§ III.B, V.A. As the Chancellor’s Regulations recognize, “documents which are

distributed or electronically communicated to all or substantially all parents within the City

containing critical information regarding their child’s education” must be translated in order to

ensure “that Limited English Speaking parents are provided with a meaningful opportunity to

participate in and have access to programs and services critical to their child’s education.”

Chancellor’s Regulation A-663. Yet Defendants actions deprived Spanish-speaking parents of

the notice to which they were entitled.

Defendants effectively concede the co-location documents must be published in Spanish,

as they eventually published the Revised Notice, Revised EIS and Revised BUP in that language.

They did so too late.

Purportedly on June 13, 2011, less than the required fifteen days prior to the PEP

meeting, an Amended Revised Notice was published in both English and Spanish, changing the

location of the PEP meeting. In reality, however, the Spanish language version was not finalized

until June 16, and could not have been published to the DOE’s website until June 17, only ten

days before the PEP June Vote.

PEP failed to give timely notice. Consequently, the June PEP Vote approving the Co-

Location Proposal must be nullified. See Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 415 (1st

Dep’t 2010) (PEP vote approving school closings annulled when DOE failed to comply with

notice requirements of Education Law § 2590-h [2-a]).

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CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion

for partial summary judgment, and enjoin permanently the co-location of SACS into the

Brandeis Campus for the 2011-2012 school year.

Dated: New York, New York July 12, 2011

PHILLIPS NIZER LLP

By: /s/ Jon Schuyler Brooks Jon Schuyler Brooks Marc A. Landis Elizabeth A. Adinolfi Attorney for Plaintiffs 666 Fifth Avenue New York, New York 10103-0084 (212) 977-9700