UFT School Closings Adam Ross Affidavit

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ILED: NEW YORK COUNTY CLERK 06/21/2011 INDEX NO. 105855/

YSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/21/

SUPREME COURT OF THE STATE OF NEW YORKNEW YORK COUNTY-------------------------------------------XMICHAEL MULGREW, as President of the UNITEDFEDERATION OF TEACHERS, Local2, American Federation ofTeachers, AFL-CIO, and THE NEW YORK STATECONFERENCE OF NAACP, THE ALLIANCE FOR QUALITY Index No. 105855/11EDUCATION, RUBEN DIAZ, JR., BILL PERKINS, ERIC (Feinman, J.)ADAMS, TONY A VELLLA, ALAN MAISEL, ROBERTJACKSON, CHARLES BARRON, ERIK MARTIN DILAN,MARK WEPRIN, LETITIA JAMES, RUBEN WILLS, STEPHEN AFFIDAVIT OFLEVIN, HECTOR NAZARIO, ZAKIYAH ANSARI, JAMES ORR, : ADAMS. ROSSJANICE LAMARCHE and BELINDA BROWN, :

Plaintiffs,-against-THE BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEW YORK, and DENNIS M. .WALCOTT, as Chancellor of the City School District of the City of :NewYork,

Defendants-and-

HARLEM SUCCESS ACADEMY CHARTER SCHOOL 1, et al.,Intervenor-Defendants.-------------------------------------------X

STATEOFNEWYORK )ss.:COUNTY OF NEW YORK )ADAMS. ROSS, being duly sworn, deposes and says:1. I am the Special Counsel for the United Federation of Teachers ("UFT"), having

held that position for some five years. As such, my duties include negotiating and draftingcollective bargaining agreements on behalf of over 200,000 UFT-represented employees in boththe public and private sectors. I also represent the Union in a wide range of matters before stateand federal administrative agencies, arbitrators and the state and federal courts, and provide legaladvice to UFT officers and staff on a broad array of matters and practice areas, including labor,education, contracts, arbitration and general corporate matters.

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2. I make this Affidavit in response to matters asserted by former Chancellor JoelKlein in his Affidavit, sworn to June 17, 2011 ("Klein Aff."), pertaining to the supposed scopeand interpretation of the Letter Agreement of July 14, 2010, arising out of disputes concerningthe implementation of the Court 's Order in Mulgrew v. Board ofEducation of the City SchoolDistrict ofNew York. (A copy ofthe Agreement is annexed hereto as Ex. A.) I participateddirectly in the negotiation of the Agreement with, on the DOE's side, Deputy Chancellor JohnWhite and General Counsel Michael Best.

3. While Chancellor Klein did not participate directly in the negotiations, hisrecitation of the procedural matters leading up to the Agreement is largely accurate. In theaftermath of Justice Lobis' decision, a dispute had arisen between the parties as to whether theDOE could proceed with co-locations that had been subject to the now invalidated PEP votes.(See Klein Aff., ~ 3 ; Letter ofCharles G. Moerdler/Alan M. Klinger to Hon. Joan B. Lobis, datedMay 28, 2010, a copy ofwhich annexed hereto as Ex. B.) The UFT and its coalition partnersmaintained that because the co-locations had been premised on the phase-out of schools, all ofwhich had been subject to the same resolutions that were no longer valid, there was no authorityto proceed with the co-locations. The DOE's position was that the co-locations were somehowdistinct. In that regard and as stated in our moving papers without contradiction by Defendants,various City spokespeople also asserted that the 19 schools at issue would in any event simply beclosed the following year.

4. In response to such statements to give meaning to the import of the Court'sdecision, the UFT and its coalition partners made clear to Defendants that they would not acceptthe view that these schools could not perform and that with the proper support from the DOE,these schools could improve. Accordingly, in return for agreeing to forgo challenge to all the co-

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locations (see Klein Aff., ~ 4 ) -a egal position that Petitioners felt most comfortable wi th Petitioners negotiated for, and obtained, an agreement to secure the Education Plans, a definedset of 10 educational supports designed to give these schools a real chance of success.Negotiations focusing on these supports stretched over a three-week period from mid-June toearly July 2010, where the DOE continually tried to diminish the specifics of support and theUFT, on behalfof its coalition, sought to strengthen them. The items eventually agreed uponthus were not lightly entered into. It was plainly held throughout the discussions, as reflected inthe Agreement, that those schools were to be afforded additional support to help them succeed ifthe Petitioner group were to allow any of the (invalidated) co-locations to proceed. The LetterAgreement was the resulting product of these negotiations.

5. Thus, while Defendants are correct that the Agreement does not foreclose theDOE from ever seeking to close these schools, their contention that their promise to providespecified supports for these schools in the 2010-2011 school year (Klein Aff., ~ 6 ) is completelyirrelevant to any further decision to close is incorrect. For the entire thrust of Petitioners' action- a nd agreement to allow certain co-locations- was premised upon the DOE obligating itselfto give these schools additional support to help them succeed. If that chance were given, and theschools did not succeed (as defined by the Chancellor), then the schools certainly could besubject to closure. On the facts set forth in the accompanying affidavits, however, there can be

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no genuine belief that the supports were provided as promised.DATED: New York, New YorkJune 21, 2011

Sworn to before me this21st day of June, 2011

Notary ublicKANUBHAI N. CHRISTIANNotary Public, State of New YorffNo. 01CH6100024Qualified in Kings CountyCommission Expires Ocl 6, 20.J.l

ADAMS. ROSS

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STROOCK

July 14, 2010Jesse I. Levine, Esq.New York City Law Department100 Church StreetNew York, New York 10907

Alan M. KllngetDirect Dial 2 1 2 - 8 0 6 ~ 5 8 1 8 Direct Fax 212-806 .7&[email protected]

Re: Mulgrew, et al. v. Board ofEducation of the City SchoolOistris;t of the Qity of New York, et at,; Index; No. 10!352/10Dea:r Jesse:I write in connection with the various meetings and discussions between the pattieswith regard to the interpretation and implememation for the 2010-11 school year ofJustice Lobis' Decision, Order and Judgment (the "Order") in che above-captionedmatter. As to the nineteen schools subject to Justice Lobis' Order (the "Schools"), theDepartment of Education has agreed that new schools will not be co-located with theexisting programs in the following school buildings during the 2010-11 school year: Christopher Columbus High School/Global Enterprise High School Frederick Douglass Academy III"' Monroe Academy for Bush1ess and Law Charles Houston (P.S. 332)o Middle School for Academic and Social Excellence

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Jesse I. Levine, Esq.July 14, 2010Page 2

o Metropolitan Corporate Academy Paul Robeson High School W. H. Maxwell CTE High School Choir Academy of Harlemo Business Computer Applications and Entrepreneurship High SchoolIn addition, of the tvvo schools proposed, Manhattan Academy for Arts and Languagewill not be co-located with Normatl Thomas High School during the 2010-11 schoolyear.The parties have also agreed that the following Education Plan will be implemented inthe Schools for the 2010-11 school year:a. Consistent with the applicable collective bargaining agreement, ATRs in thedistrict/high school superintendency will be deployed to these schools to provideadditional support. ATR teachers in the district/high school superintendency willbe used to provide educational support including, but no t limited to, earlyintervention, small group insn-uction, push-in, pull-out and/or team-teaching witha focus on English language learners and special education students. ATRguidance cmmselors, social workers, psychologists, etc., in the districtlhlgh schoolsupetintendency will provide additional social and emotional support for students,for example, new immigrants, homeless population, and students re-entering theschool system a$ needed.b. Along with the current credit l'ecovery programs, these schools will implementon-line credit recovery programs, provided that the school infrastructure supportsthe implementation. c. DOE Children First Networks ("Networks") will be responsible for developing aplan with the school leadership team to identify a conununity based organizationor mganizations to support students and families with socio-economic challenges.Partnerships would va1y from school to school based on need.

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Jesse I. Levine, Esq.July 14, 2010Page 3

d. UFT in consultation with and on behalfof the Petitioners will consult with theDOE regarding school leadership.e. Supei'intendent will closely and carefully review the Comprehensive EducationPlan (CEP) of each school. Once approved, implementation will be monitol'ed bythe DOE.f. There will be a cun'iculum audit in each school completed by filii-time DOE staff.g. Specialists from the Netwot'ks with expertise in Instructional support for ELL andspecial education students will provide targeted professional development andcurricullllll development for the school staff on su-ategies that have proveneffective with ELL and special education students. The work of those specialistswould be defined by the needs of the school.h. Networks will work with the pdncipals and already-established school teams(including, but not limited to, inquiry, departmental, grade level, and contentteams) to develop instructional support plans aligned with the CEP.i. Principals and schools shall assess the school's resources and space to detenninewhether the possibility of establishing a Teachet Center exists.j. At; soon as practicable, the DOE and the UFT in consultation with and on behalf

of the Petitioners shall estabUsh a joint committee consisting of two membet'Sselected by the UFT in consultation with and on behalfof the Petitioners and twomembers selected by the DOE (the "Joint Oversight Committee") to oversee andsupport the implementation of his Plan. The Joint OveL"Sight Conunittee shallhave the authority to (i) heat concerns regarding the manner in which this Plan isbeing implemented and (ii) recommend solutions to problems or suggest resourcesto provide technical assistance. The Joint Oversight Committee shall not have theauthority to direct any DOE employee to take any action.

This agreement does not preclude the parties from advancing their respective legalpositions in any further appeal in the above-referenced proceeding and is made without

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Jesse 1. Levine, Esq.July 14, 2010Page 4

prejudice to the parties' rights under law with respect to entities other than the Schoolsin the above-referenced proceeding; provided that Petitionel'S' claims as to the proposedco" locations in the Schools subject to the Order other than those listed in this lettel' arew, NflW \ 'QRil, NY I00)8 498Z TDL ~ l l , H l l f > . 5 1 0 1 l f.\X JH,8ol i .60ol i W \ I ' W . S 1 R O C 1 t : ~ . I ; O M


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STROOC.K

May 28, 2010

Hon. Joan B. LobisSupreme Court, New York County60 Centre StreetNew York, NY 10007

By Hand DeliveryAlan M. KlingerDirect Dial 212-806-5818Direct Fax [email protected]

Re: Mulgrew, et al. Board ofEducation of the City SchoolDistrict of the City ofNew York, et al.: Index No. 101352/10Dear Justice Lobis:We write to request a conference with Your Honor regarding issues pertaining toRespondents' compliance with your Decision, Order and Judgment, dated March 26, 2010(the "Decision") with respect to the proposed co-location of new schools in existingschools that are no longer to be phasedout pursuant to this Court 's invalidation of he votesof he Pane for Education Policy ("PEP") on January 26, 2010. (A copy of the Decision isattached hereto as Exhibit 1 for the Court 's convenience). Respondents seem to believethat they can simply move forward with the co-locations. We have raised the issue withRespondents' counsel and there is a disagreement as to the import of the Decision.Because this Court found null and void the January 26, 2010 votes of the Panel forEducation Policy ("PEP"), any actions taken based on those votes is, we submit, withoutlegal foundation. In this regard, Educational Impact Statements ("EISs") presented to thePEP on January 26 predicated the co-location ofnew schools upon the closing ofeight ofthe nineteen schools at issues. Notably, there was only one vote on each proposal and allnineteen proposals were approved by PEP. As the January 26 PEP votes were invalidated,Respondents are, we submit, prohibited from proceeding with either the school closing orthe co-location. In contradictionof he Decision, Respondents are apparently proceedingwith their co-location intentions. Specifically, Respondents have posted open positions forthe new schools, begun holding meetings with prospective school staff and have sent outmatching letters for the new schools that list the address of the school originally slated forclosure as the location of the new school.

STROOCK & 'S1'ROOCK l\: LAVAN LLP NEW YORK LOS ANGELES MIAMIIHo MAIDEN l.ANF., NF.W YOHK, NY I0038-4982 TEL 212.Ro6.5400 PAX 2l2.8o6.6oo6 W\V\V.ST!tOOCK.COM


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May 28,2010Page2

When asked about their plans for the new schools, Respondents informed Petitioners thatthey intended to effectuate the co-location proposals in at least certain schools for the 2010-2011 school year. Respondents contend that the Decision only invalidated that portion ofthe January 26, 2010 PEP votes regarding the closure of he nineteen affected schools, notthat portion of the votes regarding the co-location of new schools. As discussed above,Petitioners see no authority in the Decision for Respondents' parsing, which is furtherundermined by the co-locations being linked to the school closures. With no closure, thereshould be no co-location.Moreover, Respondents have recognized that the co-location ofschools, in and of tself, isconsidered to be a "significant change in utilization," thereby requiring an affirmativeauthorizing vote of the PEP pursuant to Education Law 2590-h. See Memorandum ofLaw in Support ofRespondents' Verified Answer, dated February 25, 2010, at 4 ("Chapter345 establishes a new process governing the process leading to decisions to close schools ormake significant changes in school utilization including the phase-out, gradereconfiguration, re-siting or co-location ofschools."). Indeed, Respondents have presentedto the PEP several EISs where the only proposal is the co-location of schools. SeeAmended Educational Impact Statement, Co-Location of Tw o Grade Levels of BronxSuccess Academy 1 with P S. 30 in School Building X030, dated April12, 2010 (a copy ofwhich is attached as Exhibit 2); Amended Educational Impact Statement, Co-Location ofaNew School, P.S. 452 (03M452), with Existing Schools in M044, dated April13, 2010 (acopy ofwhich is attached as Exhibit 3). As there has been, in effect, no PEP vote on theco-locations for any of the eight schools at issue, Respondents continuing with their nowinvalidated proposals no t only violates the Decision bu t also Education Law 2590-h.We thank the Court for its courtesy.

cc: Jesse I. Levine, Esq.Alan G. Krams, Esq.Carol L. Gersd, Esq.Adam S. Ross, Esq.

subritted,

Alan M. Klinger

STROOCK & STROOCK & LAVJ}N LLP NEW YORK LOS ANGELES MIAMI18 0 MAIDBN LANE, NEW YORK, NY 1 0 0 3 8 ~ 4 9 8 2 TilL 212 . 806 . 5400 PAX 212 . 806 . 6oo6 W\VW.STROOCK.COM

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UFT School Closings Adam Ross Affidavit