1151523.4

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.)

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ AND INTERVENOR-DEFENDANTS’

MOTIONS FOR 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 Chryssa V. Valletta

FILED: NEW YORK COUNTY CLERK 08/08/2011 INDEX NO. 107173/2011

NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 08/08/2011

TABLE OF CONTENTS

Page

1151523.4

TABLE OF AUTHORITIES ......................................................................................................... iii

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

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT...................................................................................................................................9

I. THIS COURT SHOULD STRIKE INTERVENOR’S IMPROPER SUBMISSIONS .......9

A. THIS COURT SHOULD STRIKE THE SURREPLY PORTIONS OF INTERVENORS’ BRIEF ..............................................................................................9

B. THIS COURT SHOULD STRIKE THE IMPROPERLY SUBMITTED BRIEF OF THE NEW YORK STATE EDUCATION DEPARTMENT AND THE COMMISSIONER OF EDUCATION ........................................................................10

II. THERE IS NO REQUIREMENT TO EXHAUST ADMINISTRATIVE REMEDIES ...11

III. THE REVISED EIS MISSTATES STUDENT ENROLLMENT AND IGNORES THE NEEDS OF STUDENTS WHO REQUIRE SERVICES..........................................13

A. THE LISTED ENROLLMENT FIGURES ARE WRONG ........................................13

B. THE SPACE IS INADEQUATE FOR STUDENTS’ NEEDS. ..................................15

IV. THE REVISED BUP’S SPACE ALLOCATION IS NEITHER EQUITABLE NOR COMPARABLE.......................................................................................................17

A. THE EDUCATION LAW DOES NOT PERMIT THE CREATION OF FACILITIES FOR A CHARTER SCHOOL’S EXCLUSIVE USE............................17

B. THE REVISED BUP FAILS TO ALLOCATE ADEQUATE SPACE FOR THE HIGH SCHOOLS TO MEET THEIR STUDENTS NEEDS .............................19

C. THE REVISED BUP IMPROPERLY CATEGORIZES SHARED SPACE AS REGULAR CLASSROOM SPACE............................................................................23

V. THE REVISED EIS DOES NOT ADEQUATELY ADDRESS THE IMPACT ON THE COMMUNITY AND AFFECTED STUDENTS...............................................24

A. THE REVISED EIS FAILS TO ADDRESS SAFETY CONCERNS.........................24

B. THE REVISED EIS FAILS TO ADDRESS THE EFFECT ON PERSONNEL NEEDS.........................................................................................................................26

ii

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VI. THERE WILL BE AN ADVERSE IMPACT ON PRIOR RENOVATIONS ..................28

VII. THE DOE FAILED TO PROVIDE A REQUIRED ENVIRONMENTAL IMPACT STATEMENT....................................................................................................................28

CONCLUSION..............................................................................................................................29

iii

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TABLE OF AUTHORITIES

CASES

Campaign for Fiscal Equity v. State, 187 Misc. 1, 719 N.Y.S.2d 475 (Sup. Ct. N.Y. Co. 2001) ..............................................................................................................................................23 Campaign for Fiscal Equity v. State, 100 N.Y.2d 893 (2003) ......................................................23 Chinese Staff and Workers Ass'n v. City of New York, 68 N.Y.2d 359 (1986)..............................30 Garced v. Clinton Arms Assocs., 58 A.D.3d 506, 509 (1st Dep't 2009)........................................10 J. D. B. v. North Carolina, 564 U.S. ____ (2011) .........................................................................26 LaRosa v. Arbusman, 2007 NY Slip Op 33461(U) (Sup. Ct. New York Co., Oct 17, 2007).........................................................................................10 Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624 (1995)......................................10 Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 414 (1st Dep't 2010)....................................................27 Mulgrew v. Board of Education of the City School District of the City of New York, 2011 WL 3189775 (1st Dep't July 28, 2011)...........................................................................12, 13 Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 (1992) ..........................................................................10 Ronquillo v. Turner Construction Co., 2007 NY Slip Op 32222(U) (Sup. Ct. New York Co., July 18, 2007)........................................................................................11 Sanford v. 27-29 W. 181st St. Assn., 300 A.D.2d 250 (2002)........................................................10 Starbare II Partners, L.P. v. Sloan, 243 A.D.2d 309 (1st Dep't 1997)..........................................11 Matter of Tri-County Taxpayers Assn. v Town Bd., 55 N.Y.2d 41 (1982) ....................................30

STATUTES Educ. L. § 211-d[2][b][ii] ..............................................................................................................12 Educ. L. § 310 ......................................................................................................................12 Educ. L. § 310(7) ..............................................................................................................12, 13 Educ. L. § 2590-h[2-a](d) ................................................................................................................3

iv

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Educ. L. § 2590-g [2-a](b) .............................................................................................................25 Educ. L. § 2853 [3](a-3)(2)..........................................................................................18, 25, 27, 29 Educ. L. § 2853(3)(a-5) .................................................................................................................12

REGULATIONS Chancellor’s Reg. A-190 § II.A.1.c ..............................................................................................25 Chancellor’s Reg. A-190 § II.A.1.f................................................................................................25 Chancellor’s Reg. A-190 § II.A.1.h ..........................................................................................27 Chancellor’s Reg. A-190 § II.A.2.a.ii.d...................................................................................25, 26 Chancellor’s Reg. A-190 § II.A.2.b ..........................................................................................18 Chancellor’s Reg. A-190 § II.A.2.c ..........................................................................................18 6 NYCRR § 617.5(c)(8).................................................................................................................29

1151523.4

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

opposition to Defendants’ and Intervenor-Defendants’ (collectively “Defendants”) motions for

summary judgment (the “Motion”).

PRELIMINARY STATEMENT

Defendants’ Motion vainly seeks to justify the June 27, 2011 vote of 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”)) to approve the proposal by the Chancellor of the City School

District of the City of New York (the “Chancellor”) and the New York City Department of

Education (“DOE”) to co-locate the Success Academy Charter School (“SACS”) into the so-

called Brandeis Educational Campus (“Brandeis Campus”), a building which currently houses

five separate public high schools, Louis D. Brandeis High School, The Urban Assembly School

for Green Careers, The Global Leaning Collaborative, Innovation Diploma Plus, and Frank

McCourt High School. However, that vote was predicated on a process that was not only

procedurally flawed, but also tainted by misinformation and meaningless, boilerplate analysis of

the impact of this co-location on the Brandeis Campus’ students, staff and community. PEP’s

vote was the product of this misleading and inaccurate information and analysis, rendering its

determination arbitrary and capricious. Defendants implicitly acknowledge this fact in their

Motion, as they frequently resort to conclusory statements without carefully analyzing the facts.

The Court should not grant Defendants’ Motion.

STATEMENT OF FACTS

1. On December 17, 2010, 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

2 1151523.4

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, the Chancellor and 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”), see August 3, 2011, Affirmation of Jon Schuyler Brooks (“Brooks Aff.”), Exhibit 1,

submitted in support of Plaintiffs’ August 3, 2011 motion for partial summary judgment, and

“Building Utilization Plan” (“BUP”), Brooks Aff., Exhibit 2, relating to the Co-Location

Proposal.

3. The EIS states, inter alia, “The DOE would renovate four rooms adjacent to the

current cafeteria to create a separate cafeteria for SACS students, who would be of elementary-

school age.” Brooks Aff., Exhibit 1 at p. 3.

4. The EIS states, inter alia, that, “The high schools serve general education students

and students requiring special education services, including students currently enrolled in

Collaborative Team Teaching (“CTT”) classes and students enrolled in Self-Contained (“SC”)

classes. Upon admission, the schools work with parents to develop an individualized program

that reflects the resources that the schools can offer as appropriate for the student. Thus, services

are tailored to meet the indivual (sic) needs of the students with disabilities currently enrolled

and, as such, may vary from year to year.” Brooks Aff., Exhibit 1 at p. 3.

5. The EIS states “students classified as English Language Learners (“ELL”) are

enrolled and receive English as a Second Language (“ESL”) or transitional bilingual services.

All students enrolled in one of the schools in the Brandeis Campus will continue to receive their

3 1151523.4

mandated special education and/or ESL services if this proposal is approved.” Brooks Aff.,

Exhibit 1 at pp. 3-4.

6. 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

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

Campus”.

7. 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.

8. 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.

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

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

10. 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.

11. 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 revised the EIS or BUP prior to the February 1, 2011 PEP meeting.

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

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

4 1151523.4

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

“February PEP Vote”).

14. 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.

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

opposing the Verified Petition.

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

17. 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.

18. 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.

19. 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”).

20. 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

5 1151523.4

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” (“Revised EIS”), Brooks Aff., Exhibit

3, and “Revised Building Utilization Plan” (“Revised BUP”), Brooks Aff., Exhibit 4.

21. The Revised BUP states that the Brandeis Campus currently has 67 full-size

classrooms and 14 half-size classrooms (exclusive of science labs and science demo classrooms).

See Brooks Aff., Exhibit 4 at p. 3.

22. The Revised EIS and BUP propose to renovate “four rooms adjacent to the

current cafeteria” to build a “separate multi-purpose space” to be used as an additional cafeteria

and gymnasium in the Brandeis Campus for the exclusive use of the SACS students. Brooks

Aff., Exhibit 3 at p. 11; Brooks Aff., Exhibit 4 at pp. 4, 19.

23. The Revised EIS states, inter alia, “Brandeis High School currently offers Self

Contained (SC) classes. Green Careers, Global Learning, Diploma Plus and Frank McCourt all

offer Collaborative Team Teaching (CTT). All five high schools offer Special Education Teacher

Support Services (“SETSS”). The existing classes and services would continue to be provided,

and students with disabilities will continue to receive mandated services in accordance with their

IEPs. Similarly, current and future students with IEPs will continue to receive mandated services

at all of the high schools in the Brandeis Campus and at SACS.” Brooks Aff., Exhibit 3 at p. 8.

24. The Revised EIS states, inter alia, “In accordance with DOE policy, English

Language Learner (“ELL”) students are admitted to high schools in the same manner as their

peers who are not ELLs. Current and future ELL students at the high schools in the Brandeis

6 1151523.4

Campus and at SACS would continue to receive mandated services.” Brooks Aff., Exhibit 3 at p.

8.

25. The Revised EIS states that Global Learning has 2091 returning students for the

2011-2012 school year, and that Global Learning will have a total enrollment of up to 330

students for 2011-2012. Brooks Aff., Exhibit 3 at p. 4. The EIS states that in the 2012-2013

school year Global Learning will achieve its maximum enrollment of 450 students, allowing for

a maximum incoming 9th grade class of 120 students.

26. The Revised BUP states that Global Learning is currently using 11 full size

classrooms, 1 half size classroom, 1.5 full size administrative spaces and 1 half size

administrative space, and that “Global Learning is above its baseline allocation by 3 full-size

rooms.” Brooks Aff., Exhibit 4 at p. 6. According to the Revised BUP, Global Learning’s

baseline allocation for the 2011-2012 school year will be 12 full size classrooms, one half size

classroom and 2.5 administrative spaces, an actual increase of only 1 full size classroom, a loss

of one half classroom and an increase of 1 administrative space. Brooks Aff., Exhibit 4 at p. 11.

27. The Revised EIS states that, “The DOE, in consultation with the Building

Council, will, where possible allocate contiguous and dedicated space to SACS to ensure the

safety of all students.” Brooks Aff., Exhibit 3 at p. 8. However, the EIS does recognize that the

SACS students and the high school students on the Brandeis Campus will share space. Id. at p.

11 (“SACS will share space in the dance studio, auditorium, and playground/yard/garden”).

28. While the Revised EIS acknowledges that students and visitors at the Brandeis

Campus must pass through metal detectors as part of security screening, due to NYPD and DOE

1 According to the Academic Dean of Global Learning, the enrollment of current students stands at 211. See July 29, 2011 Affidavit of Rachel Dahill-Fuchel ¶ 2.

7 1151523.4

policy, “students at SACS would not be subject to scanning to gain entry to the building[.]”

Brooks Aff., Exhibit 3 at p. 8.

29. The Revised EIS gives three examples where high schools are purportedly co-

located with elementary schools, the Julia Richman Campus, Building M013, and the Adlai

Stevenson Campus, and states that “none of these co-locations have presented any unusual

problems”. Brooks Aff., Exhibit 4 at p. 11.

30. The Revised BUP provides the following boilerplate provision regarding safety

and security:

Pursuant to Chancellor’s Regulation A-414 every school/campus must have a School Safety Committee. The committee plays an essential role in the establishment of safety procedures, the communication of expectations and responsibilities of students and staff, and the design of prevention and intervention strategies and programs specific to the needs of the school. The committee is comprised of various members of the school community, including Principal(s); designee of all other programs operating within the building; U.F.T. Chapter Leader; Custodial Engineer/designee; and In-house School Safety Agent Level III. The committee is responsible for addressing safety matters on an ongoing basis and making appropriate recommendations to the Principal(s) when it identifies the need for additional security measures, intervention, training, etc.

The committee is also responsible for developing a comprehensive School Safety Plan which defines the normal operations of the site and what procedures are in place in the event of an emergency. The plan must be consistent with the citywide prescribed safety plan shell. Each program operating within a school must enter program specific information in the School Safety Plan. Safety plans are updated annually by the School Safety Committee in order to meet changing security needs, changes in organization and building conditions and other factors. In addition, the committee recommends changes in the safety plan at any other time when it is necessary to address security concerns.

Consistent with the process described above, the leader/designee of SACS will be part of the Brandeis Campus Safety Committee. As a member of the School Safety Committee, the leader/designee of SACS will participate in the development of the building’s Safety Plan and ensure that any security related issues or needs which may arise with respect to the co-location of SACS will be addressed on an ongoing basis. Moreover, the Safety Plan for the M470 school building will be modified as appropriate to meet any changing security needs associated with the co-location. SACS will enter information in the school’s overall Safety Plan to ensure the safe operation of the school building.

8 1151523.4

Each school building must also establish a Building Response Team (BRT) that will consist of trained staff members from each of the campus’ schools, and which is activated when emergencies or large building-wide events occur. The members of this team must be identified and listed in the School Safety Plan.

The completed Safety Plan for the M470 school building will be submitted to the Borough Safety Directors of the Office of School and Youth Development for approval. If changes or modifications are necessary, the School Safety Committee will be advised. Once the School’s Safety Plan is approved, it will be submitted to the NYPD for final approval and certification by the NYPD.

Brooks Aff., Exhibit 4 at p. 26.

31. 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”).

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

Revised Notice into Spanish, and thereafter published the same.

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

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

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

for the second time the Co-Location Proposal.

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

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

9 1151523.4

ARGUMENT

I. THIS COURT SHOULD STRIKE INTERVENOR’S IMPROPER SUBMISSIONS

A. THIS COURT SHOULD STRIKE THE SURREPLY PORTIONS OF INTERVENORS’ BRIEF

In their memorandum of law in support of this Motion, Intervenors reiterate many of the

same arguments they set forth in their July 14, 2011 opposition to Plaintiffs’ July 12, 2011

motion for partial summary judgment (the “July 12 motion”). Specifically, Intervenors included

at pages 14 to 15 of their memorandum of law in opposition to this Motion arguments regarding

the YABC program, although they made arguments regarding the YABC program previously at

pages 27 to 29 of their July 14, 2011 opposition. Likewise, Intervenors include at pages 27 to 29

of this memorandum of law arguments regarding the DOE’s compliance with notice

requirements, although they already made arguments regarding the DOE’s compliance with

notice requirements at pages 29 to 30 of their July 14, 2011 opposition.

Intervenors should not be permitted to rebrief arguments already made in their opposition

to a prior motion in this motion. Such arguments are nothing more than an improper surreply to

Plaintiffs’ July 12 Motion, and it is well-settled that surreply papers, however denominated, are

not permitted. Rule 14(c) of the Rules of the Justices of the Supreme Court, New York County,

states:

The CPLR does not provide for surreply papers, however denominated. Papers or letters regarding a motion should not be presented to the court after submission of the motion in the Motion Support Office Courtroom (Room 130), or after argument in the Part, if any, except with the advance permission of the court. Materials presented in violation of this Rule will not be read.�

(emphasis added). No such advance permission of the Court was even sought. The practice of

filing surreply papers has been rejected by the First Department. See Garced v. Clinton Arms

Assocs., 58 A.D.3d 506, 509 (1st Dep’t 2009) (“The practice of filing a surreply was repudiated

10 1151523.4

by this Court in Ritt v. Lenox Hill Hosp., 182 AD2d 560, 562 (1992); see also Lumbermens Mut.

Cas. Co. v. Morse Shoe Co., 218 AD2d 624, 626 [1995], which has been applied to bar

consideration of such-submissions; cf. Sanford v. 27-29 W. 181st St. Assn., 300 A.D.2d 250, 251

(2002)”). Intervenors’ attempt to evade the well-settled prohibition on filing of sur-reply papers

by including sur-reply arguments in opposition to another motion should be rejected by the Court

and the Court should strike pages 14 to 15 and 28 to 29 in Intervenors’ memorandum of law.

B. THIS COURT SHOULD STRIKE THE IMPROPERLY SUBMITTED BRIEF OF THE NEW YORK STATE EDUCATION DEPARTMENT AND THE COMMISSIONER OF EDUCATION

Apparently aware of the weakness of their own arguments, Intervenors also incorporate

by reference the April 25, 2011 Memorandum of Law submitted by the New York State

Education Department (“SED”) and the Commissioner of Education (“Commissioner”) in

Steglich I in support of their motion to participate in that case as Amici Curiae. (Intervenors’

Mem. at 9). Intervenors’ actions are improper on two independent bases.

First, incorporating by reference, rather than setting out at length, the arguments made in

a separate 9-page memo of law is a transparent attempt to prevent Intervenors’ 31-page memo of

law from more seriously violating the page limitation imposed by Rule 2.A. of the Part 12 Rules

(referencing Rule 14(b) of the Rules of the Justices, New York County Supreme Court Civil

Branch). LaRosa v. Arbusman, 2007 NY Slip Op 33461(U) at 2 n.1 (Sup. Ct. New York Co.,

Oct 17, 2007) (Lowe, J.) (refusing to consider pages in excess of limitation); Ronquillo v. Turner

Construction Co., 2007 NY Slip Op 32222(U) at 3 (Sup. Ct. New York Co., July 18, 2007)

(Solomon, J.) (admonishing counsel for exceeding page limitation and awarding costs to

opposing counsel).

Second, and perhaps more importantly, neither the SED nor the Commissioner sought

Amici Curiae status in this case. Consequently, no basis in law exists for the Court to consider

11 1151523.4

their prior arguments. The case Intervenors cite, Starbare II Partners, L.P. v. Sloan, 243 A.D.2d

309 (1st Dep’t 1997), has nothing to do with a court taking judicial notice of a memorandum of

law from a non-party on a motion for summary judgment. Rather, Starbare involved the

application of collateral estoppel and res judicata. The defendants there were attempting to

vacate a judgment on the grounds of fraudulent concealment and nondisclosure. The court took

judicial notice of the Order of the New Jersey court, and the papers underlying the Order, which

had granted the judgment. The court concluded that, because the New Jersey Court already

dismissed with prejudice the defendants’ claims, res judicata and collateral estoppel precluded

the defendants from raising those issues as defenses to the judgment. The Court here is not

presented with any issue of res judicata or collateral estoppel from Steglich I which would

warrant taking judicial notice of memoranda filed in that case. To the contrary, this Court should

take judicial notice that the SED and Commissioner made no attempt to participate in this case,

and draw the inference they believe the Education Law does not confer exclusive original

jurisdiction upon the Commissioner, at least in this instance.

Upon either of these bases, the Court may not consider the April 25, 2011 memorandum

of law submitted by the SED and Commissioner in Steglich I, and Exhibit 14 to the Affirmation

of Emily Kim should be stricken from the record.

II. THERE IS NO REQUIREMENT TO EXHAUST ADMINISTRATIVE REMEDIES

Defendants incorrectly argue that Mulgrew v. Board of Education of the City School

District of the City of New York, 2011 WL 3189775 (1st Dep’t July 28, 2011) (“Mulgrew IV”)

requires that Plaintiffs exhaust all administrative remedies. (Defendants’ Mem. at 8-10). In fact,

Mulgrew IV is inapposite because it concerns a section of the Education Law that contains very

different language than the section at issue herein.

12 1151523.4

The paragraph at issue in Mulgrew IV provides that the “sole and exclusive remedy” for

violation of such paragraph would be a petition to the Commissioner, whose decision would be

“final and unreviewable.” Education Law § 211-d[2][b][ii]. Here, by contrast, the statute at

issue, Section 2853(3)(a-5), provides: “[T]he determination to …co-locate a charter school

within a public school building … that has been approved by the board of education …may be

appealed to the Commissioner” pursuant to § 310 of the Education Law. Educ. L. § 2853(3)(a-5)

(emphasis added). Section 310 likewise provides: “Any party considering himself aggrieved

may appeal by petition to the commissioner of education.” Id. § 310 (emphasis added). The

Legislature’s use of the permissive “may” in sections 310 and 2853 is a far cry from its use of

the phrase “sole and exclusive remedy” in Section 211-d, and thus Mulgrew IV is inapplicable.

The Mulgrew IV Court went on to state that:

Education Law § 310(7), which gives the State Commissioner of Education authority over grievances arising under the Education Law, does not provide for exclusive or original jurisdiction. Nevertheless, in this context, it would be consistent with the statute’s scheme to require those petitioner-organizations whose complaints do not fall under section 211-d(7) to exhaust their remedies under Education Law § 310(7) before proceeding to court.

2011 WL 3189775 at * 5 (emphasis added).

The Mulgrew IV Court did not create a rule, desired by Defendants, requiring every claim

arising under the Education Law first be brought to the Commissioner. The Mulgrew IV Court

required the exhaustion of administrative remedies in the specific context before it, which

required “review and comparison of budgets, expenditures, and funding allocations,” which the

Court found fall “squarely within the purview of the State Education Department.”

Moreover, one of the issues raised by the Amended Verified Complaint is whether

Defendants complied with the State and City Environmental Quality Review Act (respectively,

“SEQRA” and “CEQRA”). The Commissioner admits he lacks jurisdiction to hear and decide

13 1151523.4

challenges that go beyond issues of compliance with the Education Law. See Frequently Asked

Questions Concerning Appeals to the Commissioner of Education (“FAQ”), Question No. 14

(emphasis added).2

Because this proceeding raises issues outside the purview of the Commissioner, i.e.,

unrelated to the Education Law, Plaintiffs would be prejudiced if they were required to sever

certain claims over which the Commissioner lacks authority to hear.

III. THE REVISED EIS MISSTATES STUDENT ENROLLMENT AND IGNORES THE NEEDS OF STUDENTS WHO REQUIRE SERVICES

Defendants argue that because the DOE’s calculations regarding the number of students

in the affected schools were corrected in the Revised EIS, the space allocations based on those

numbers must also be correct. (Intervenors’ Mem. at 13-14). Defendants’ conclusions are

wrong because: (1) there still are errors in the numbers of students in the Revised EIS and (2) the

Revised EIS and Revised BUP are fundamentally flawed because they improperly draw

conclusions about the adequacy of space based simply on the (incorrect) numbers of students,

without taking into account the services needed by those students.

A. THE LISTED ENROLLMENT FIGURES ARE WRONG

Global Learning, just one of the schools at issue here,3 currently has a roster of 211

returning students for the 2011-2012 school year, and a roster of 171 incoming students. See

July 29, 2011, Affidavit of Rachel Dahill-Fuchel (“Dahill-Fuchel Aff.”) ¶ 2 (submitted in

support of Plaintiffs’ August 3, 2011 Motion for Partial Summary Judgment). While the Revised

EIS says Global Learning will have a total enrollment of up to 330 students for 2011-2012,

Brooks Aff. ¶ 26, in reality they will have 382 – a population in this one school more than 15%

2 Available at http://www.counsel.nysed.gov/appeals/faqs.htm. 3 Plaintiffs have been hamstrung in placing before the Court facts of the actual conditions in all of the schools because most witnesses with personal knowledge have been unwilling to go on the record with what they know.

14 1151523.4

greater than stated in the Revised EIS. Furthermore, no additional space has been allocated to

Global Learning to accommodate these 52 additional students, meaning Global Learning will

have an average class size of 32 students. For the incoming class, the class size is actually 43

students in each of the four new sections.

As of July 29, 2011, Global Learning still has 171 incoming students on its 2011-2012

roster, all of whom have been notified by the DOE they have a guaranteed seat in the school.

Dahill-Fuchel Aff. ¶ 2. Even if, over the next month, 20% of the incoming students decide to

enroll elsewhere, Global Learning still will have an incoming ninth grade class of 137 students,

placing the enrollment for 2011-2012 at 348 students. DOE has capped Global Learning’s total

capacity at 450 students, meaning the incoming ninth grade class in the 2012-2013 school year

will be restricted to no more than 102 seats (and significantly less than that if this coming year’s

enrollment is not discounted by 20%). Even the Revised EIS, however, concedes Global

Learning will grow by 110-120 students each year, including the 2012-2013 school year. Brooks

Aff., Exhibit 3 at p. 4. (And there has been tremendous demand within the community for seats

at Global Learning; over 850 students applied for the 2011-2012 school year.) The SACS co-

location will make it logistically impossible to expand Global Learning to accommodate the

incoming ninth grade class in 2012-2013.

While the error in enrollment numbers is not as large, according to Defendants’ own

document, as of May 20, 2011, approximately two weeks before the Revised EIS and BUP were

issued, Green Careers had a total of 191 students, not 183 as reported in the Revised EIS.4

4 See Special Education Delivery Report for Green Careers, available at http://schools.nyc.gov/documents/teachandlearn/sesdr/2010-11/sesdr_M402.pdf.

15 1151523.4

B. THE SPACE IS INADEQUATE FOR STUDENTS’ NEEDS.

In addition to the fact that Global Learning is slated to have 52 students for whom the

Revised BUP allocates no space, Global Learning has a very high percentage of high-need

students, English Language Learners (ELLs) and Special Education (“SPED”) students.

According to the 2009-2010 School Progress Report,5 of the 104 students then enrolled in Global

Learning, 24.5% required SPED services (and almost 15% of them required SPED services in a

self-contained classroom). As a basis for comparison, the average percentage of students

requiring SPED services in New York City high schools for 2009-2010 was 14.4%.6

Likewise, According to the 2009-2010 School Progress Report, of the 95 students then

enrolled in Green Careers, 27.4% required SPED services. According to Defendants’ own

document, as of May 20, 2011, of the 191 students enrolled in Green Careers, 50 students, or

26.2%, required SPED services.7 Green Careers also has 43 students classified as Limited

English Proficiency, or 22.5% of the student body.8 While the number of students requiring

SPED services at Frank McCourt is lower, 18 out of the 100 students enrolled,9 Frank McCourt

still has a SPED population of 18%, which exceeds the City average.

Currently, out of 211 Global Learning students, over 67 are ELL students, or 31.7%. See

Dahill-Fuchel Aff. ¶ 5. Some of these students are categorized as “SIFE”, Students with

5 Available at http://schools.nyc.gov/NR/rdonlyres/989153AA-EB45-4FA7-834A-C2394279CE7A/0/2009_2010_HS_PR_Results_2010_12_21.xls, lines 64 and 65. Plaintiffs were unable to locate data on the percentages of Special Education and ELL students at these schools for the 2010-2011 or 2011-2012 school years. 6 This figure was derived from the IEP data contained in the 2009-2010 Progress Report. 7 See Special Education Delivery Report for Green Careers, available at http://schools.nyc.gov/documents/teachandlearn/sesdr/2010-11/sesdr_M402.pdf. 8 See Urban Assembly School for Green Careers (03M402) 2010-2011 School Comprehensive Educational Plan at p. 31, available at http://schools.nyc.gov/documents/oaosi/cep/2010-11/cep_M402.pdf. 9 See Special Education Delivery Report for Frank McCourt, available at http://schools.nyc.gov/documents/teachandlearn/sesdr/2010-11/sesdr_M417.pdf

16 1151523.4

Incomplete Formal Education. Id. These children are functionally, and sometimes

socially/emotionally, illiterate in their own language as well as in English. Id. The DOE

established Global Learning as having a Bilingual program into which they could pour ELL

students. Id.; see also Brooks Aff., Exhibit 3 at p. 8. Accordingly, the number of ELL students

who will be enrolled in Global Learning will only increase. These students, whether they are

SIFE or have intermediate English proficiency, require significant support services which in turn

requires additional space. Id.

At present, Global Learning has more than 60 SPED students, including 18 who came to

Global Learning designated for instruction in a Self-Contained Classroom due to the nature of

their disabilities. Id. at ¶ 6. This fact increases the SPED population from 24.5% to 28.4%,

double the average population of SPED students in New York City public high schools. In

September, 2009, the DOE urged Global Learning to change the Self Contained Classroom

students’ designation to that of Cooperative Team-Teaching, id., arguably to reduce the need for

the additional space these students would require. Since then, due to the urging of the SPED

teachers who have worked with some of these students for two full years, the DOE supported re-

designating some as in need of more intensive District 75 settings. Id. District 75 “provides

citywide educational, vocational, and behavior support programs for students who are on the

autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory

impaired and/or multiply disabled.”10 However, to date, these students are still on the roster at

Global Learning, and Global Learning must still endeavor to meet their needs.

Yet the Revised EIS and BUP ignore the needs of these Global Learning SPED students

with a Self-Contained Classroom designation. The Revised EIS states:

10http://schools.nyc.gov/Offices/District75/DistrictInfo/default.htm

17 1151523.4

Brandeis High School currently offers Self Contained (SC) classes. Green Careers, Global Learning, Diploma Plus and Frank McCourt all offer Collaborative Team Teaching (CTT). All five high schools offer Special Education Teacher Support Services (“SETSS”). The existing classes and services would continue to be provided, and students with disabilities will continue to receive mandated services in accordance with their IEPs [Individualized Education Plan]. Similarly, current and future students with IEPs will continue to receive mandated services at all of the high schools in the Brandeis Campus and at SACS.

Brooks. Aff., Exhibit 3 at p. 8. The Revised EIS conceals that there are Global Learning students

who require Self Contained classes and who are not receiving these mandated services in

accordance with their IEPs. According to the DOE publication, The Five Ws of the NYC DOE

Footprint, “A school’s allocation should be increased by one full or half size classroom for each

self-contained special education class.” Brooks Aff, Exhibit 12 at p. 18. Yet the Revised BUP

fails to make any additional allocation for the Global Learning students who require Self

Contained classrooms. For this reason alone, the BUP is insufficient.

IV. THE REVISED BUP’S SPACE ALLOCATION IS NEITHER EQUITABLE NOR COMPARABLE

A. THE EDUCATION LAW DOES NOT PERMIT THE CREATION OF FACILITIES FOR A CHARTER SCHOOL’S EXCLUSIVE USE

The Education Law and the Chancellor’s Regulations require that the BUP include

“justification of the feasibility of the proposed allocations … and how such proposed allocations

and shared usage would result in an equitable and comparable use of such public school

building.” Educ. L. § 2853 [3](a-3)(2)(C) (emphasis added); Chancellor’s Reg. A-190 §

II.A.2.c. The Revised EIS and Revised BUP propose the creation of a separate gym/cafeteria for

SACS, an allocation of space that runs afoul of both the letter and the spirit of the Education

Law.

Defendants argue the law merely requires an “adequate allocation of cafeteria time,”

rather than allocation of shared space. (Intervenors’ Mem. at 25). That statement is false. The

18 1151523.4

Education Law and the Chancellor’s Regulations classify cafeterias (and gymnasia) as “shared

resources and spaces,” and require the BUP to include a “collaborative usage” of them “between

the charter school and the non-charter schools….” Educ. L. § 2853 [3](a-3)(2)(B); Chancellor’s

Reg. A-190 § II.A.2.b. By creating a separate, not shared space, the construction of the multi-

purpose space/cafeteria/gymnasium for the SACS students, as set forth in the Revised BUP,

violates not only that requirement, but also the requirement that the proposal for collaborative

usage “assures equitable access to such [shared] facilities in a similar manner and at reasonable

times to non-charter school students as provided to charter school students.” Id. The law simply

does not permit the creation of exclusive “shared facilities” for charter schools within public

school buildings.11

The Revised EIS and BUP do not explain – let alone justify – the need for an additional

cafeteria or gymnasium. According to the Revised EIS, Brandeis High School has the capacity

to accommodate 2,148 students. Brooks Aff., Exhibit 3 at p. 3. One would assume the building

has a cafeteria and gymnasia that can accommodate 2,148 students throughout the course of the

day. According to the Revised BUP, the existing Brandeis cafeteria has a capacity of 558

students. Brooks Aff., Exhibit 4 at p. 21. The maximum projected enrollment for SACS is 490

students, and SACS will have a larger maximum enrollment than any of the high schools.

Brooks Aff., Exhibit 3 at pp. 2, 4. Yet the Revised BUP offers no explanation for why the

SACS students cannot be accommodated in the existing cafeteria. Likewise, the Brandeis

Campus currently has three gymnasia with capacity to hold 619 people, 172 people and 172

11 Appeal of Litichevsky, Comm’r’s Decision No. 16,254, 2011 N.Y. Educ. Dept. LEXIS 69, at *11-12 (June 28, 2011), cited by Intervenors, is not to the contrary. In Litichevsky, the public school currently had access to two gyms (one for the female students and one for the male students) but would have access to one gym under the co-location proposal that could be used by both male and female students. No new facility was created – instead the existing gym space was simply apportioned between the charter and public school. Here, on the other hand, an entirely new cafeteria/gymnasium will be created for the sole benefit of the charter school students.

19 1151523.4

people.12 Again, nowhere in the Revised BUP is there any explanation for why SACS cannot be

accommodated with the existing facilities.

B. THE REVISED BUP FAILS TO ALLOCATE ADEQUATE SPACE FOR THE HIGH SCHOOLS TO MEET THEIR STUDENTS NEEDS

Defendants apparently believe space has been equitably allocated so long as it is

allocated according to the formula set out in the Footprint, regardless of the needs of the students

within a particular school. However, The Five Ws of the NYC DOE Footprint states that the

Footprint is the “minimum space allocation for a school, organization or program.” Brooks Aff.,

Exhibit 12 at p. 3 (emphasis supplied). Moreover, the Footprint is only a “guideline for making

decisions around space when multiple organizations are located in a building,” id. (emphasis

added), because the formula underlying the Footprint is based on a set of assumptions. Id. Yet

there is nothing in the Footprint which requires Defendants, when allocating space, to ignore

facts that do not fit with those assumptions, such as a school having twice the number of special

education students as the average New York City public high school or a school having a

Bilingual program with a significant population of ELL students who receive mandated services.

Indeed, The Five Ws of the NYC DOE Footprint states that “[a]dditional space available in

excess of the footprint should be divided equitably based on enrollment or special needs.” Id.

(emphasis added). The Five Ws of the NYC DOE Footprint also states that, while the formula is

not based on class size, “the DOE will consider a school’s current class size.” Id.

12 The Revised BUP refer to the three existing gymnasia as the “619 sq. ft. GYM”, the “172 sq. ft. GYM” and the “172 sq. ft. GYM”. This is clearly erroneous, as it means that the largest gymnasium is only slightly larger than a full size classroom, which according to Defendants has a minimum of 500 square feet, Brooks Aff. Exhibit 4 at p. 3, fn. 5, and the small gymnasia are approximately one third of the size of a full size class room. As a basis of comparison, the SACS gymnasium, which is being constructed by combining four full size classrooms, will have a minimum of 2000 square feet. Apparently, when Defendants drafted the Revised BUP the figures for the rooms’ capacity from the summary of the Space Utilization Survey were confused with the rooms’ square footage.

20 1151523.4

Global Learning is designated as a Phase 1 Special Education school13 meaning that it can

establish independent needs for each student, for each class. See Dahill-Fuchel Aff. ¶ 7.

Defendants acknowledge that in Phase I schools, “[s]chools will use adult and student time

differently, and use different groupings of students throughout the day.”14 In many cases, this

means that each Special Education student requires the type of individualized instruction and

supervision that can only successfully be provided in smaller group settings. Id. This requires

additional space and room, as students need to be pulled out of the regular classroom for such

instruction, for resource room activities and instruction, and for counseling. Id. The Special

Education teachers both within the school, and within its network, have stated that to meet the

needs of Global Learning’s Special Education population, the school requires three designated

Special Education classrooms and/or offices. Id. Yet at present there are NO designated Special

Education rooms available. Id.

Of the roster for incoming students, 38 are classified as Special Education students, or

22.2%. Id. ¶ 8. Five of those 38 incoming Special Ed students are designated as requiring self-

contained classrooms, 14 are designated for integrated co-teaching, and 19 are designated for

resource room. Id. Resource room instruction in particular requires “pull out” space, if it is to

be done effectively, again requiring additional classroom space. Id.

13 According to Defendants:

Schools in Phase I of this Two-Year Phase-In are working to serve the overwhelming majority of students with disabilities in the school’s zone or coming to the school through choice processes. In collaboration with parents, and through the IEP process, these schools are refining instructional programs for students with disabilities by taking a fresh look at the strengths and needs of students. Schools in Phase I are focusing on working toward students’ long-term educational goals, educating students with disabilities with their non-disabled peers, and developing focused recommendations for services that are targeted to student achievement.

School Allocation Memorandum 30, FY 12, available at http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy11_12/FY12_PDF/sam30.pdf (emphasis added). 14 School Allocation Memorandum 30, FY 12, available at http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy11_12/FY12_PDF/sam30.pdf

21 1151523.4

The co-location has resulted also in Global Learning losing precious counseling space

which had allowed its teachers to meet the needs of their students. Since the construction began

on the SACS-designated space on what had been the multi-purpose second floor, with the shared

art rooms and office spaces, Global Learning lost spaces which Brandeis High School Principal

Liquori graciously had shared. Id. ¶ 9. Since Global Learning opened in Fall 2009, it had used

three rooms within the Brandeis section of the school for counseling.

However, once construction on the SACS space began in March, Global Learning was

forced to move its counseling department into a former book closet within the school’s

parameters. See id. ¶ 10, Exhibit A. This closet is the only space available to three counselors to

provide services to over 200 students. Id. It simply does not offer adequate space or privacy for

effective counseling to take place. Other office space is shared with no fewer than 7 staff

members who do not have classroom space, and who also require secure, private space for

student meetings/counseling during the course of a school day. Id. With no other options, staff

have had to make use of stairwells and hallway corners to counsel students, a situation that is

unprofessional, distracting, and untenable. Id. The Revised EIS claims that ELL and SPED

students will continue to receive their mandated services. Brooks Aff., Exhibit 3 at p. 8. It just

omits that students will receive those services in closets, hallways, stairwells and corners.

Global Learning currently lacks space to adequately meet student needs, particularly

students at risk. The situation only will worsen as its student body and students’ needs increase

at a pace that outstrips its space allocation. For the Fall of 2011, its baseline allocation is

increased by the addition of 4 classrooms. But according to the Revised BUP, Global Learning

is currently over its baseline allocation by three classrooms. So in reality the increase of four

22 1151523.4

classrooms is really only an increase of one. And the increase of one administrative space is

undercut by the elimination of one half size space.

The allocation in the Revised BUP also ignores that Global Learning is already

overcrowded because it utilizes a nontraditional learning model.15 This causes overcrowding

because Global Learning has 20 scheduled advisories which meet during the same period. Id. ¶

11. The use of smaller person advisories is supported by the DOE as a program which has been

proven to improve student behavior and academics. Id. Advisors often take on roles of guidance

counselors as well as academic advising, to help move children towards community and

individual success. Id. This model, which comes from a program the DOE has supported,

requires smaller class sizes, as well as ability to use “circles” as a mode of learning.

Consequently, lab rooms with fixed square tables do not work with this mode of instruction. Id.

With only 14 Global Learning rooms, the school needs to find six additional spaces for advisory

classes. Id. For example, it has made due with using the library to house three distinct groups.16

Id. But this will still leave approximately 60 students without space for their advisories.

The failure to account for Global Learning’s status as a Phase I school and its

pedagogical model which requires smaller class sizes, its actual student enrollment for the 2011-

2012 school year which will lead to an average class size of 32 students, and the special needs of

its significant population of ELL students and SPED students, in allocating space within the

Brandeis Campus resulted in an incorrect determination that this co-location will not impact the

students, or the schools’ ability to properly meet students’ needs and provide mandated services, 15 It has been previously noted by the Supreme Court that Defendants’ Enrollment Capacity Utilization, even in ordinary circumstances, actually overstates school’s capacity. See Campaign for Fiscal Equity v. State, 187 Misc. 1, 50, 719 N.Y.S.2d 475, 508-09 (Sup. Ct. N.Y. Co. 2001). 16 In Campaign for Fiscal Equity v. State, the Court of Appeals noted, “One symptom of an overcrowded school system is the encroachment of ordinary classroom activities into what would otherwise be specialized spaces: libraries, laboratories, auditoriums and the like.” 100 N.Y.2d 893, 911, fn. 4 (2003). This is precisely what is happening in the Brandeis Campus, and this overcrowding will only be exacerbated by the SACS co-location.

23 1151523.4

at the Brandeis campus. A review of the facts reveals that the space allocation to Global

Learning is in no way adequate although it is consistent with the DOE Instructional Footprint.

C. THE REVISED BUP IMPROPERLY CATEGORIZES SHARED SPACE AS REGULAR CLASSROOM SPACE

The Revised EIS and BUP are premised on the mistaken calculation that the Brandeis

Campus currently has 67 full-size classrooms and 14 half-size classrooms (exclusive of science

labs and science demo classrooms). Brooks Aff., Ex. 3 at p.3. That calculation – derived from

the Site Visit Summary – counts as full-size classrooms the following spaces:

room “218,” the ceramics studio; and

room “B7,” a 1428 square foot platformed music room.

It does so even though the DOE Blue Book specifies that “[r]egular classrooms include Pre-K to

12th grade classrooms used for regular instruction.” See Brooks Aff., Exhibit 10 p. H2.

Defendants attempt to excuse this error by stating that “Plaintiffs’ analysis is wrong because they

are improperly importing the term ‘regular instruction’ from the Blue Book and unilaterally

applying it as the definition of ‘full-sized classrooms’ as used in the Revised BUP.”

(Intervenors’ Mem. at 18). According to Defendants, any room with an area of 500 square feet

or more is a full-sized classroom. Id. This ignores reality – plainly, a ceramics studio or music

room cannot be used in the same way as a traditional classroom and cannot take the place of one.

Thus, the Revised EIS and BUP are based upon a vague and/or inaccurate room assessment.

Moreover, neither the BUP nor the EIS explain why these valuable resources (Defendants

spent over $280,000 renovating the music room, see infra Point V), should be allocated to a

specific school rather than categorized as a shared space, like the black box theater.

24 1151523.4

V. THE REVISED EIS DOES NOT ADEQUATELY ADDRESS THE IMPACT ON THE COMMUNITY AND AFFECTED STUDENTS

The Education Law and Chancellor’s Regulations require that the EIS include “the

ramifications of such … significant change in school utilization upon the community,” as well as

“the impacts of the proposed … significant change in school utilization to any affected students.”

Educ. L. §§ 2590-g [2-a](b)(i)-(ii); Chancellor’s Reg. A-190 §§ II.A.1.c, II.A.1.f. The

Education Law and Chancellor’s Regulations also require that the BUP provide information on

“building safety and security”. Educ. L. §2853 [3][a-3][2][D]; Chancellor’s Reg. A-190 §

II.A.2.a.ii.d.

A. THE REVISED EIS FAILS TO ADDRESS SAFETY CONCERNS

Due to NYPD and DOE policy, “students at SACS would not be subject to scanning to

gain entry to the building[.]” Brooks Aff., Exhibit 1 at p. 8. Therefore, anything could find its

way not only into the Brandeis Campus, but also into the hands of the high-school students there.

The co-location plan thus risks comprising the entire security structure of the Brandeis Campus,

potentially endangers every student (and person) in that building, and as noted by Manhattan

Community Board 7, “would add unreasonable supervision and logistical demands on educators

and administrators, as well as on security staff ….” Brooks Aff., Exhibit 5.

Rather than provide an analysis of why the unscreened SACS students do not pose a

security risk, or explain the steps that will be taken to ensure that no contraband is brought into

the building by SACS students, Defendants simply assert that, because there has been a co-

location on the Adlai Stevenson Campus of eight high schools and pre-kindergarten students

“without incident,” the same holds true for Brandeis. (Intervenors’ Mem. at 16). But there is no

elementary school at the Stevenson Campus. Rather, there is only a full day pre-Kindergarten.

The Revised EIS also states that “[t]he pre-Kindergarten students on the Stevenson Campus have

25 1151523.4

been allocated contiguous and dedicated space within the building.” Id. at p. 8. Whether this

means that no students from other schools need to come into P.S. 138’s space, and vice versa, is

left unsaid. Nor does the Revised EIS provide information regarding whether the P.S. 138

students share facilities with the high school students.

Defendants claim that because there have been no “unusual problems” with three and

four year old pre-Kindergarteners at the Stevenson Campus, there will be no problems at the

Brandeis Campus. “[J]udges need no imaginative powers, knowledge of developmental

psychology, training in cognitive science, or expertise in social and cultural anthropology to

account for a child’s age. They simply need the common sense to know that a 7-year-old is not a

13-year-old and neither is an adult.” J. D. B. v. North Carolina, 564 U.S. ____, Slip Op. p. 17

(2011). Likewise, it requires nothing more then common sense to recognize the difference

between a co-location involving three and four-year olds and a co-location involving four to

eleven-year-olds. Yet Defendants blithely dismiss as “hyperbole” and “speculation” the concern

that contraband will be introduced by elementary school students, who are not always supervised

by a parent on their way to or from school as pre-Kindergarteners are.17 (Intervenors’ Mem. at

16-17). There is a very real possibility that a high school student could circumvent security by

bribing, intimidating or threatening a SACS student into bringing contraband, including a

weapon, into the building.18 Nothing in the analysis provided by the EIS disproves this.

17 The media is rife with stories of elementary school students bringing guns to school. See, e.g., http://www.wcnc.com/news/local/Gun-goes-off-inside-elementary-school-classroom-93432609.html; http://www.msnbc.msn.com/id/42665638/ns/us_news-crime_and_courts/t/-year-old-brings-gun-houston-school-hurt/; http://www.robesonian.com/view/full_story/6812523/article-Loaded-gun-brought-to-elementary-school?instance=secondary_news_left_column. 18 Defendants also assert that the EIS need not have addressed the security concerns arising from the possibility that elementary school students could be induced to bring contraband to the school by stating that “nothing in Education Law requires the DOE to explore in an EIS every possible hypothetical scenario that could conceivably develop.” (Intervenors’ Mem. at 17). The Court should reject this straw man argument. The Brandeis Campus currently has metal detectors because Defendants believe they are necessary to ensure the students’ and staff’s safety. The

26 1151523.4

The Revised EIS does not meaningfully address the impact on either the community or

the affected students and the BUP merely offers impermissible boilerplate for information about

building safety and security.19 See Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 414 (1st Dep’t

2010) (“respondents do not discharge their obligation by providing nothing more than boilerplate

information”). The BUP provides no information whatsoever regarding the current Security

Plan for the Brandeis Campus (although the EIS reveals that it includes having students and

visitors pass through metal detectors), nor is there any analysis of how the co-location will

impact that plan. While the EIS does not explicitly address safety concerns, it dismisses the idea

that co-locating elementary school aged children in a high school with a significant population of

over-aged students could present any problems, safety or otherwise. This Court should find that

the Revised EIS and Revised BUP do not adequate address the issues of this co-location’s impact

on the students, the community and school safety.

B. THE REVISED EIS FAILS TO ADDRESS THE EFFECT ON PERSONNEL NEEDS

The Education Law and Chancellor’s Regulations require that the EIS include “the effect

of such … significant change in school utilization on personnel needs, the costs of instruction,

administration, transportation, and other support services.” Educ. L. § 2590-g [2-a](b)(iv);

Chancellor’s Reg. A-190 § II.A.1.h. The Revised EIS, however, does not assess the monitoring

needed to ensure safety for all students in a space shared by high school students (some up to 21

years old) and elementary students as young as five years, nor does it address the unreasonable

dangers posed by introducing a population of elementary school students to the Campus who do not have to pass through those metal detectors thus are clearly not “hypothetical.”

19 See supra Statement of Facts ¶ 30.

27 1151523.4

supervision and logistical demands that will be placed on educators, administrators, or security

staff, or the costs associated with the monitoring or the demands.

Instead, the Revised EIS merely states that, “[t]his co-location is not expected to change

the number of personnel positions required at any of the high schools in the Brandeis

Educational Campus, or significantly alter the duties of current staff.” Defendants argue that this

boilerplate statement is sufficient because “the Revised EIS did not need to address issues

concerning unreasonable supervision or logistical demands on educators, administrators and

security staff. There are none.” (Intervenors’ Mem. at 17). Defendants’ conclusory statement is

untrue. As set forth above, there are genuine safety concerns posed by the co-location, and

additional supervision and staff will be needed to deal with those concerns.

Indeed, the Revised EIS does not even address if current staffing levels are sufficient for

the necessary student supervision. There are strong indicators that they are not. According to

the Office of School and Youth Development – from September through June of this past school

year, Global Learning20 had 68 violent and/or disruptive incidents take place in the hallways of

the Brandeis Campus which were recorded in DOE’s On-line Occurrence Reporting System

(“OORS”). See Dahill-Fuchel Aff. ¶ 13. Overcrowding has caused students to walk through and

“hide” in other parts of the building, and due to insufficient personnel, there is no oversight or

supervision once they are out of school boundaries. Id. No where in the Revised EIS or Revised

BUP is there any discussion or analysis of the level of OORS incidents within the Brandeis

Campus, steps that will be taken to minimize such incidents, or how such incidents will be

handled should they take place within SACS space. Defendants simply place their heads in the

20 Plaintiffs have been unable to obtain figures for the number of OORS incidents in the other high schools, as the OORS database is not publicly accessible.

28 1151523.4

sand by saying that these issues need not be addressed because they do not exist. This Court

should not countenance this willful blindness.

VI. THERE WILL BE AN ADVERSE IMPACT ON PRIOR RENOVATIONS

Defendants argue that the renovations planned in the building will not have any adverse

impact on the $17.5 million in renovations and improvements that were recently made to the

Brandeis campus because the EIS states that “the utility of the restructuring work that has

already been completed will not be lost as a result of the co-location.” (Intervenors’ Mem. at 26-

27). However, this conclusory statement is belied by other statements in the EIS. For example,

the music room B7 was the beneficiary of over $287,000 in renovations in 2006. The utility of

much, if not all, these music room renovations will likely be lost if the DOE succeeds in its plan,

as the BUP treats B7 as a full sized classroom which will be allocated to a specific school for

regular classroom instruction.

VII. THE DOE FAILED TO PROVIDE A REQUIRED ENVIRONMENTAL IMPACT STATEMENT

Defendants attempt to excuse the DOE’s failure to prepare an environmental impact

statement by arguing that a statement was not necessary. (Intervenors’ Mem. at 29-30). Instead,

they claim the co-location is a SEQRA/CEQR “Type II” project and, therefore, no environmental

impact statement was necessary. SEQRA, however, specifically excludes from Type II projects

“changes in use related to [school] closings. 6 NYCRR § 617.5(c)(8) (emphasis added). The

co-location of a charter school is statutorily-defined as a “significant change in utilization” of a

public school building. Educ. L. § 2590-h [2-a](a). Consequently, the co-location is not and

cannot be a Type II project.

Defendants’ assertion that the reorganization of an elementary school is not covered by

SEQRA is irrelevant – here there will not be a mere reorganization, but instead the wholesale

29 1151523.4

creation of a new school. Thus, an environmental impact statement was required and

Defendants’ failure to issue one is fatal. Chinese Staff and Workers Ass’n v. City of New York,

68 N.Y.2d 359, 369 (1986); Matter of Tri-County Taxpayers Assn. v Town Bd., 55 N.Y.2d 41,

45-47 (1982).

CONCLUSION

For the reasons set forth herein, the Court should deny Defendants’ and Intervenors’

motion for summary judgment.

Dated: New York, New York August 8, 2011

PHILLIPS NIZER LLP By: /s/ Jon Schuyler Brooks

Jon Schuyler Brooks Marc Andrew Landis Elizabeth A. Adinolfi Chryssa V. Valletta Attorney for Plaintiffs 666 Fifth Avenue New York, NY 10103 (212) 977-9700