Plaintiffs' Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment

8/6/2019 Plaintiffs' Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment

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

LISA STEGLICH, individually and as parent and naturalguardian of ALEXANDER HERLIHY, infant, RIC

CHERWIN, individually and as parent and naturalguardian of MARLEY CHERWIN, infant, et al.,

Plaintiffs,

-against-

THE BOARD OF EDUCATION OF THE CITYSCHOOL DISTRICT OF THE CITY OF NEW YORKa/k/a THE PANEL FOR EDUCATIONAL POLICY,THE DEPARTMENT OF EDUCATION OF THE CITYOF NEW YORK, and DENNIS M. WALCOTT, asChancellor of the City School District of the City of

New York,

Defendants,

- and -

UPPER WEST SUCCESS ACADEMY CHARTERSCHOOL a/k/a SUCCESS ACADEMY CHARTERSCHOOL, MATTHEW MOREY, individually and asparent and natural guardian of infants THOMASMOREY and CLAIRE MOREY, et al.,

Intervenor-Defendants.

:

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:

:

:

:

:

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

Index No. 107173/11

IAS Part 12

(Feinman, J.)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS

MOTION FOR PARTIAL SUMMARY JUDGMENT

PHILLIPS NIZER LLP666 Fifth AvenueNew York, NY 10103(212) 977-9700Attorney for Plaintiffs

Of Counsel:

Jon Schuyler BrooksMarc Andrew LandisElizabeth A. Adinolfi

ILED: NEW YORK COUNTY CLERK 08/03/2011 INDEX NO. 107173/

YSCEF DOC. NO. 123 RECEIVED NYSCEF: 08/03/


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Table of Contents

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i1151379.2

TABLE OF AUTHORITIES .......................................................................................................... ii

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

STATEMENT OF UNCONTROVERTED FACTS .......................................................................2

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

I. THE PEP VOTE MUST BE ANNULLED BECAUSE THEDEFENDANTS FAILED TO COMPLY WITH SEQRA AND/OR CEQR.......................9

II. THE PEP VOTE MUST BE ANNULLED BECAUSE THE REVISEDEIS AND BUP ARE INACCURATE, INCOMPLETE AND INSUFFICIENT ................9

A. THE REVISED EIS MISSTATES STUDENT ENROLLMENT ANDIGNORES THE NEEDS OF STUDENTS WHO REQUIRE SERVICES..............10

B. THE REVISED BUPS SPACE ALLOCATION IS NEITHEREQUITABLE NOR COMPARABLE......................................................................14

1. The Education Law Does Not Permit The Creation Of FacilitiesFor A Charter Schools Exclusive Use .............................................................14

2. The Revised BUP Fails To Allocate Adequate Space ForThe High Schools To Meet Their Students Needs............................................16

3. The Revised BUP Improperly Categorizes Shared Space As RegularClassroom Space ...............................................................................................19

C. THE REVISED EIS AND BUP FAIL TO OFFER THE NECESSARYANALYSIS OF THE IMPACT OF THE SACS CO-LOCATION.........................20

1. Safety and Impact on Students and The Community........................................20

2. Effect on Personnel Needs ................................................................................26

CONCLUSION..............................................................................................................................27


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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) ...............................................................................................................18

Campaign for Fiscal Equity v. State, 100 N.Y.2d 893 (2003) ......................................................18

Chinese Staff and Workers Ass'n v. City of New York, 68 N.Y.2d 359 (1986)................................9

Matter of New York Pub. Interest Research Group Straphangers Campaign v.

Metropolitan Transp. Auth., 196 Misc.2d 502 (Sup. Ct. N.Y. Co. 2003) ....................................10

Matter of New York Pub. Interest Research Group Straphangers Campaign v.

Metropolitan Transp. Auth., 309 A.D.2d 127 (1st Dep't 2003) ....................................................10

Matter of Schwartz v. Dennison, 14 Misc. 3d 1220, 836 N.Y.S.2d 489, 2006 WL3932753 (Sup. Ct. N.Y. Co. 2006) ................................................................................................10

Matter of Tri-County Taxpayers Assn. v Town Bd., 55 N.Y.2d 41 (1982)......................................9

Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 414 (1st Dep't 2010) .............................................21, 22

STATUTES

Educ. Law 2853 [3][a-3][2][B]...................................................................................................15

Educ. Law 2853 [3][a-3][2][C]...................................................................................................14

Educ. Law 2853 [3][a-3][2][D]...................................................................................................21

Educ. Law 2590-g [2-a](b)(i)......................................................................................................21

Educ. Law 2590-g [2-a](b)(ii).....................................................................................................21

Educ. Law 2590-g [2-a](b)(iv)....................................................................................................26

Educ. Law 2590-h [2-a](a)............................................................................................................9

REGULATIONS


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Commissioner's Regulation A-190 II.A.1.c ...............................................................................21

Commissioner's Regulation A-190 II.A.1.f ................................................................................21

Commissioner's Regulation A-190 II.A.1.h ...........................................................................26

Commissioner's Regulation A-190 II.A.2.a.ii.d..........................................................................21

Commissioner's Regulation A-190 II.A.2.b ...........................................................................15

Commissioner's Regulation A-190 II.A.2.c ...........................................................................14

6 NYCRR 617.5(C)(8) .............................................................................................................9


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

support of their motion for partial summary judgment as to the Third, Fourth, Fifth and Sixth

Causes of Action set forth in the Amended Complaint (the Motion).

PRELIMINARY STATEMENT

On June 27, 2011, 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)) voted for the second time 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. The 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. PEPs vote was the product of this misleading

and inaccurate information and analysis, rendering its determination arbitrary and capricious.

Plaintiffs parents and children who will be the most negatively impacted should the co-location

proceed ask that this Court annul the PEP vote and halt this co-location by granting partial

summary judgment as to the Third, Fourth, Fifth, and Sixth Causes of Action set forth in the

Amended Complaint.1

1 Currently before the Court is another motion by Plaintiffs for partial summary judgment as to other portions of theAmended Complaint. In the event that pending motion is granted, even in part, it will dispose of this action, and thisMotion will become moot.


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STATEMENT OF UNCONTROVERTED FACTS

1. On December 17, 2010, PEP published a document in English titled PublicNotice (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, the Chancellor and DOE published documents titledEducational 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, 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 thecurrent 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 studentsand 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.


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5. The EIS states students classified as English Language Learners (ELL) areenrolled 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

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 titledAmended 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 theycharacterized 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 regardingthe 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 (PublicComment Analysis) relating to the Co-Location Proposal.

10. As reflected in the Public Comment Analysis, the Chancellor and/or DOEreceived public input relating to the Co-Location Proposal prior to the February 1, 2011 PEP

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

EIS, and the BUP.

11. Notwithstanding the public input received by the Chancellor and/or DOE duringeither the Joint Hearing or otherwise (as reflected in the Public Comment Analysis), neither the


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Chancellor nor DOE attempted to revise 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, itconsidered the Co-Location Proposal, including the EIS and BUP.

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

14. On April 8, 2011, Plaintiffs herein commenced an Article 78 proceeding againstDefendants 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 hereinreiterated 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 RevisedNotice 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


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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 titledRevised 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

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-sizeclassrooms 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 thecurrent cafeteria to build a separate multi-purpose space to be used asan additional cafeteria

and gymnasium in the Brandeis Campusfor 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 SelfContained (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.


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

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 2092 returning students for the2011-2012 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 sizeclassrooms, 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 Learnings

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 BuildingCouncil, will, where possibleallocate 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).

2 According to the Academic Dean of Global Learning, the enrollment of current students stands at 211. SeeAffirmation of Rachel Dahill-Fuchel 2.


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28. While the Revised EIS acknowledges that students and visitors at the BrandeisCampus must pass through metal detectors as part of security screening, due to NYPD and DOE

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 Chancellors Regulation A-414 every school/campus must have aSchool Safety Committee. The committee plays an essential role in theestablishment of safety procedures, the communication of expectations andresponsibilities of students and staff, and the design of prevention andintervention strategies and programs specific to the needs of the school. Thecommittee is comprised of various members of the school community, includingPrincipal(s); designee of all other programs operating within the building; U.F.T.Chapter Leader; Custodial Engineer/designee; and In-house School Safety AgentLevel III. The committee is responsible for addressing safety matters on anongoing basis and making appropriate recommendations to the Principal(s) whenit identifies the need for additional security measures, intervention, training, etc.

The committee is also responsible for developing a comprehensive School SafetyPlan which defines the normal operations of the site and what procedures are inplace in the event of an emergency. The plan must be consistent with the citywideprescribed safety plan shell. Each program operating within a school must enterprogram specific information in the School Safety Plan. Safety plans are updatedannually by the School Safety Committee in order to meet changing securityneeds, changes in organization and building conditions and other factors. In

addition, the committee recommends changes in the safety plan at any other timewhen it is necessary to address security concerns.

Consistent with the process described above, the leader/designee of SACS will bepart of the Brandeis Campus Safety Committee. As a member of the SchoolSafety Committee, the leader/designee of SACS will participate in thedevelopment of the buildings Safety Plan and ensure that any security relatedissues or needs which may arise with respect to the co-location of SACS will be


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addressed on an ongoing basis. Moreover, the Safety Plan for the M470 schoolbuilding will be modified as appropriate to meet any changing security needsassociated with the co-location. SACS will enter information in the schoolsoverall Safety Plan to ensure the safe operation of the school building.

Each school building must also establish a Building Response Team (BRT) thatwill consist of trained staff members from each of the campus schools, and whichis activated when emergencies or large building-wide events occur. The membersof 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 theBorough Safety Directors of the Office of School and Youth Development forapproval. If changes or modifications are necessary, the School Safety Committeewill be advised. Once the Schools Safety Plan is approved, it will be submitted tothe NYPD for final approval and certification by the NYPD.


31. On June 13, 2011, Defendant PEP published a document in English titledAmended 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 AmendedRevised Notice into Spanish, and thereafter published the same.

33. On June 20, 2011, the Plaintiffs filed their Complaint seeking a DeclaratoryJudgment 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 approvefor the second time the Co-Location Proposal.

35. On June 30, 2011, Plaintiffs filed their Amended Complaint seeking, inter alia, tohave the June 27, 2011 PEP vote declared a nullity.


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ARGUMENT

I. THE PEP VOTE MUST BE ANNULLED BECAUSE THE DEFENDANTSFAILED TO COMPLY WITH SEQRA AND/OR CEQR

Defendants concede they failed to perform any review of the Co-Location Proposal under

the State Environmental Quality Review Act (SEQRA) or its New York City counterpart

(CEQR). 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, therefore, were required to prepare and issue an environmental impact

statement. They failed to do so, and admit it. Consequently, the June PEP Vote was invalid, and

must be declared null and void. Chinese Staff and Workers Assn 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).

II. THE PEP VOTE MUST BE ANNULLED BECAUSE THE REVISED EIS ANDBUP ARE INACCURATE,3 INCOMPLETE AND INSUFFICIENT

As set forth below, the Revised EIS and the Revised BUP, and the Space Utilization

Survey on which they are based, fail to reflect the reality of need for and the use of space within

the Brandeis Campus. Furthermore, the Revised EIS and the Revised BUP fail to provide an

accurate and meaningful analysis of the security issues presented by the co-location of

3 Defendants inability to provide accurate information is readily apparent in their references to the Grand StreetSettlement, a community-based organization (CBO) that works with at-risk youth, on page 5 of the Revised EISand page 4 of the Revised BUP, despite the fact that this CBO is no longer at Brandeis. Indeed, the summary of theNovember 22, 2010 Space Utilization Survey notes that this organization is no longer at Brandeis. See Brooks Aff.,Exhibit 9.


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elementary school students with high school students for this particular Campus, with its

heightened security requirements. As a result, both the community and PEP were badly

misinformed as to the impact of this co-location on the existing students, staff and schools within

the Brandeis Campus. A vote based on such misinformation is arbitrary and capricious and

should be annulled. See Matter of Schwartz v. Dennison, 14 Misc. 3d 1220 (A), 836 N.Y.S.2d

489 (Table), 2006 WL 3932753 (Sup. Ct. N.Y. Co. 2006) (Since the record confirms the

Boards misunderstanding of the facts, and since the Board relied on that misinformation at least

in part, the decision-making process is fatally flawed and the determination is arbitrary and

capricious and must be annulled.);Matter of New York Pub. Interest Research Group

Straphangers Campaign v. Metropolitan Transp. Auth., 196 Misc.2d 502, 515 (Sup. Ct. N.Y.

Co. 2003) (vacating administrative determination as arbitrary and capricious where hearing

notice presented the public and Board with misleading financial information) revd on other

grounds, 309 A.D.2d 127 (1st Dept 2003) (We agree that a notice of hearing - - even one that

meets statutory requirements - - that provides the public with false and misleading information

may so taint the hearing process as to require invalidation not only of the notice, but also of the

hearing and subsequent agency action).

A. THE REVISED EIS MISSTATES STUDENT ENROLLMENT ANDIGNORES THE NEEDS OF STUDENTS WHO REQUIRE SERVICES

The Revised EIS and Revised BUP do not address the reality of the need for space among

the existing high schools. For example, Global Learning4 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. While the Revised EIS says

4 Plaintiffs have been hamstrung in placing before the Court facts of the actual conditions in all of the schoolsbecause most witnesses with personal knowledge have been unwilling to go on the record with what they know.


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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% 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 an average

class size of32 students. However, for the incoming class, the class size is actually43 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 Learnings 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 years

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.

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 students. According to the


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2009-2010 School Progress Report,5 of the 104 students then enrolled in Global Learning,24.5%

required Special Education services (and almost 15% of them required Special Education

services in a self-contained classroom).6 As a basis for comparison, the average percentage of

students requiring Special Education services in New York City high schools for the 2009-2010

school year was 14.4%.7

Nor are the numbers better for the subsequent classes. Currently, out of 211 Global

Learning students, over 67 are ELL students, or31.7%. See Dahill-Fuchel Aff. 5. Some of

these students are categorized as SIFE, Students with 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 Special Education 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 Special Education population

from24.5% to28.4%, double the average population of Special Education students in New York

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 locatedata on the percentages of Special Education and ELL students at these schools for the 2010-2011 or 2011-2012school years.

6 Both Green Careers and Global Learning have a significant population of students who are English LanguageLearners and who qualify for Special Education services. According to the 2009-2010 School Progress Report, ofthe 95 students then enrolled in Green Careers,27.4% required Special Education services.

7 This figure was derived from the IEP data contained in the 2009-2010 Progress Report.


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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 Special Education 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.8 However, to

date, these students are still on the roster at Global Learning, and Global Learning must still

endeavor to meet their needs.

However, the Revised EIS and BUP ignore the needs of Special Education students with

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

Brandeis High School currently offers Self Contained (SC) classes. GreenCareers, Global Learning, Diploma Plus and Frank McCourt all offerCollaborative Team Teaching (CTT). All five high schools offer SpecialEducation Teacher Support Services (SETSS). The existing classes and serviceswould continue to be provided, and students with disabilities will continue toreceive mandated services in accordance with their IEPs [IndividualizedEducation Plan]. Similarly, current and future students with IEPs will continue toreceive mandated services at all of the high schools in the Brandeis Campus andat 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 schools 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

8http://schools.nyc.gov/Offices/District75/DistrictInfo/default.htm


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

classrooms.

B. THE REVISED BUPS SPACE ALLOCATION IS NEITHEREQUITABLE NOR COMPARABLE

1. The Education Law Does Not Permit The CreationOf Facilities For A Charter Schools Exclusive Use

The Education Law and the Chancellors 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); Chancellors Reg. A-190

II.A.2.c. The Revised BUP includes a justification section, but it fails to provide a credible,

supportable justification. Moreover, 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.

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 asan additional cafeteria and

gymnasium in the Brandeis Campusfor the exclusive use of the SACS students. See Brooks

Aff., Exhibit 3 at p. 11. This land grab is elective in that the capacity of the existing cafeteria is

sufficient to serve the entire Brandeis Campus. In the Original EIS and BUP Defendants were

straightforward about their intentions: the new space was labeled a cafeteria. See Brooks Aff.,

Exhibit 1 at p. 3. Defendants attempt to escape the reality of their co-location plan by playing

with semantics and renaming the SACS cafeteria a multi-purpose space and now saying it will

also be used as the SACS gymnasium. Arguably, any large open space, which describes most if

not all cafeterias and gymnasiums, can be a multi-purpose space.


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Defendants have no choice but to attempt this semantic sleight of hand because the

Education Law and the Chancellors Regulations classify cafeterias (and gymnasiums) as

shared resources and spaces, and require the BUP to propose a collaborative usage of them

between the charter school and the non-charter schools. Educ. L. 2853 [3](a-3)(2)(B);

Chancellors Reg. A-190 II.A.2.b. The proposed construction of a separate, dedicated cafeteria

for the SACS students, as set forth in the Revised BUP, violates not only that requirement, but

also the requirement that the required 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.

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

cafeteria and/or gymnasium. If the existing cafeteria and gymnasia can accommodate the SACS

students, then the space being grabbed by SACS for its exclusive multi-purpose space must

instead be made available to all schools and students in the Brandeis Campus on an equitable and

comparable basis. Alternatively, if the existing cafeteria and gymnasia cannot accommodate the

SACS students without displacing students from the existing high schools, or rendering the use

of those shared facilities inequitable and non-comparable, then by definition the Revised EIS and

BUP have failed to comply with the statutory requirements.


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2. The Revised BUP Fails To Allocate Adequate Space ForThe High Schools To Meet Their Students Needs

Global Learning is designated as a Phase 1 Special Education school9 and it can establish

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

9 According to Defendants:Schools in Phase I of this Two-Year Phase-Inare working to serve the overwhelming majority of

students with disabilities in the schools zone or coming to the school through choice processes.In collaboration with parents, and through the IEP process, these schools are refining instructionalprograms for students with disabilities by taking a fresh look at the strengths and needs ofstudents. Schools in Phase I are focusing on working toward students long-term educationalgoals, educating students with disabilities with their non-disabled peers, and developing focusedrecommendations for services that are targeted to student achievement. Schools will use adult andstudent time differently, and use different groupings of students throughout the day.

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


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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 intoa former book closet within the schools

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, not-private and, consequently, untenable. Id. The Revised EIS

claims that ELL and Special Education 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


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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.10 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 slightly smaller class sizes, as well as ability to use circles as a mode of learning

consequently, lab rooms with fixed square lab tables are not conducive to success 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.11Id. But this will still leave approximately 60 students without space for

their advisories.

Defendants apparently believe that so long as space is allocated according to the formula

set out in the Footprint, space has been equitably allocated, regardless of the needs of the

students within a particular school. However, The Five Ws of the NYC DOE Footprintstates that

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

10 It has been previously noted by the Supreme Court that Defendants Enrollment Capacity Utilization, even inordinary circumstances, actually overstates schools capacity. SeeCampaign for Fiscal Equity v. State, 187 Misc. 1,50, 719 N.Y.S.2d 475, 508-09 (Sup. Ct. N.Y. Co. 2001).

11 In Campaign for Fiscal Equity v. State, the Court of Appeals noted, One symptom of an overcrowded schoolsystem 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 ishappening in the Brandeis Campus, and this overcrowding will only be exacerbated by the SACS co-location.


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

decisions around space when multiple organizations are located in a building.Id. (emphasis

added). This is 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 Footprintstates 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 Footprintalso states that while the formula is

not based on class size, [the DOE will consider a schools current class size. Id. Yet

Defendants have failed to account for Global Learnings 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 of32 students, and the special needs of

its significant population of ELL students and Special Education students, in allocating space

within the Brandeis Campus and determining that this co-location will not impact the students, or

the schools ability to properly meet students needs and provide mandated services, at the

Brandeis campus.

3. The Revised BUP Improperly Categorizes Shared Space As RegularClassroom 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:


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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 forregular instruction. See Brooks Aff., Exhibit 10 p. H2. In sum,

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

Unlike the dance studio and future black box, the music room does not appear in the

BUPs shared space analysis. It is unclear why this valuable resource was omitted. Defendants

describe B7 merely as a classroom with a small raised platform currently used for music

instruction. See April 21, 2011 Affidavit of Thomas Taratko. This is a curious description for a

space Defendants spentover $287,000 renovating in 2006. See Exhibit A to the July 29th

Affidavit of Shulamit Warren.12

Likewise, contrary to Defendants assertion in Paragraph 7 of the Taratko Affidavit, the

ceramics studio was not exclusively used by Global Learning, but was one of the shared art

rooms housed on the second floor. See Dahill-Fuchel Aff. 9. Neither the BUP nor the Taratko

Affidavit explain why the ceramics studio should no longer be a shared space, whether it remains

in Room 218 or if it is relocated to another space within the Brandeis Campus.

C. THE REVISED EIS AND BUP FAIL TO OFFER THE NECESSARYANALYSIS OF THE IMPACT OF THE SACS CO-LOCATION

1. Safety and Impact on Students and The CommunityThe Education Law and Chancellors Regulations require that the EIS include the

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

12 Mr. Taratkos affidavit puts the cost of the renovations at $170,000. See Taratko Aff. 9. It is unclear what thesource of Mr. Tatatkos numbers is, but Plaintiffs numbers were obtained from the School Construction Authority.Even if Mr. Taratkos number is correct, a significant investment was made in a space the BUP completelydisregards.


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

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

Education Law and Chancellors Regulations also require that the BUP provide information on

building safety and security. Education Law 2853 [3][a-3][2][D]; Chancellors Reg. A-190

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

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.13 SeeMulgrew v. Bd. of Educ., 75 A.D.3d 412, 414 (1st Dept

13 The Revised BUP provides:

Pursuant to Chancellors Regulation A-414 every school/campus must have a School SafetyCommittee. The committee plays an essential role in the establishment of safety procedures, thecommunication of expectations and responsibilities of students and staff, and the design ofprevention and intervention strategies and programs specific to the needs of the school. Thecommittee 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; CustodialEngineer/designee; and In-house School Safety Agent Level III. The committee is responsible foraddressing safety matters on an ongoing basis and making appropriate recommendations to thePrincipal(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 whichdefines the normal operations of the site and what procedures are in place in the event of anemergency. The plan must be consistent with the citywide prescribed safety plan shell. Eachprogram operating within a school must enter program specific information in the School SafetyPlan. Safety plans are updated annually by the School Safety Committee in order to meet changingsecurity needs, changes in organization and building conditions and other factors. In addition, thecommittee recommends changes in the safety plan at any other time when it is necessary toaddress security concerns.

Consistent with the process described above, the leader/designee of SACS will be part of theBrandeis Campus Safety Committee. As a member of the School Safety Committee, theleader/designee of SACS will participate in the development of the buildings Safety Plan andensure 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 schoolbuilding will be modified as appropriate to meet any changing security needs associated with theco-location. SACS will enter information in the schools overall Safety Plan to ensure the safeoperation of the school building.

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


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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. Rather than address the

panoply of problems that may ensue from throwing grade schoolers into a building filled with

upward of 1,500 later-age teenagers and young adults, the Revised EIS states that, The DOE, in

consultation with the Building Council, will, where possibleallocate contiguous and dedicated

space to SACS to ensure the safety of all students. Brooks Aff., Exhibit 1 at p. 8.

However, the EIS recognizes that the SACS students and the high school students on the

Brandeis Campus will also share space. Id. at p. 11 (SACS will share space in the dance studio,

auditorium, and playground/yard/garden). This means that high school students are certain to

move through SACS space, as the only way to the courtyard/garden, which the Revised BUP has

scheduled as a shared space, is through entrances on the second floor, where SACS classrooms

are being located. See Dahill-Fuchel Aff. 12. Even if facilities were not going to be shared,

neither the Revised BUP nor the Revised EIS explain how high school students will move abut

the building without needing to cross through space occupied by SACS, or vice versa.

The completed Safety Plan for the M470 school building will be submitted to the Borough SafetyDirectors of the Office of School and Youth Development for approval. If changes ormodifications are necessary, the School Safety Committee will be advised. Once the SchoolsSafety Plan is approved, it will be submitted to the NYPD for final approval and certification bythe NYPD.



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What both the Revised EIS and Revised BUP gloss over is that the safety situation at the

Brandeis Campus is such that the Security Plan calls for students and visitors to pass through

metal detectors. However, 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, the Revised EIS dismisses these risks by giving three examples

where high schools are purportedly co-located with elementary schools, the Julia Richman

Campus, Building M013, and the Adlai Stevenson Campus, and stating that none of these co-

locations have presented any unusual problems. Brooks Aff., Exhibit 1 at p. 11. 14 However,

the examples Defendants use to summarily dismiss safety concerns are so factually distinct they

render Defendants analysis misleading and meaningless.

While the Julia Richman Campus does house an elementary school with high schools,

this is the result, not of a random co-location to which the community is overwhelming opposed,

but of a comprehensive redesign from a single school into small autonomous learning

communities, including the elementary school. Brooks Aff., Exhibit 6 at p. 1. The redesigned

14 The co-location of an elementary school with a high school is such an anomaly that there is no Footprint todetermine the proper allocation of space for such a co-location. See The Five Ws of the NYC DOE Footprint,Brooks Aff., Exhibit 12 at p. 7.


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Richman Campus was conceptualized and designed as a multi-age, multi-service learning

community.Id. Indeed, creating a multi-age community was seen as a centerpiece of the

redesign. Id. at p. 2.

Furthermore, the schools in the Richman Campus do not have contiguous and dedicated

space where possible. Rather, when the building was redesigned, [s]pace in the complex

[was] configured so that each school has its own defined space: its own classrooms, offices,

bathrooms, and stairways. School boundaries are defined so that no one needs to walk through

another schools space in order to get to his or her school or to a common facility. Attention to

such detail has important security implications[.] Id. at p. 3. Neither the Revised EIS nor the

Revised BUP pay any attention the these important details. For all intents and purposes, the

students at the Richman campus occupy segregated spaces, despite Defendants claim that such

segregation is not required. See Defendants Answer 231. Moreover, the students and visitors

to the Richman Campus are not required to go through metal detectors. The Richman Campus

experience is so different it offers no support for the claim that SACS can be co-located without

creating security risks.

Likewise, none of the students at Building M013, which houses Central Park East I

Elementary School, Jackie Robinson Junior High School and Central Park East High School, are

required to pass through metal detectors. The Revised EIS also fails to disclose that student

population is significantly smaller than at Brandeis: Central Park East Elementary has an

enrollment of only 189 students, Jackie Robinson has only 265 students and Central Park East

High School has only 402 students, for a total of 856 students. See Brooks Aff., Exhibit 7 at p. 2.

Not only is the student population smaller, but the building has more room as it has capacity for

1,291 students. Id. The Revised EIS also fails to offer any analysis whether space in Building


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M013 is allocated in a similar fashion as it will be in the Brandeis Campus, or if every school has

dedicated space like the Richman Campus, which does not require students to cross into another

schools space in order to get to his or her school or to a common facility. Nothing in the

analysis contained in the Revised EIS demonstrates that the potential for security risks at the

Brandeis Campus can be gleaned from the experience of Building M013.

Of the three examples offered in the Revised EIS, only one involves a school where

students are subject to security screening, the Adlai Stevenson Campus. Brooks Aff., Exhibit 1

at p. 11. But there is no elementary school at the Stevenson Campus. Rather, there is only a full

daypre-Kindergarden. The Revised EIS also states that [t]he pre-Kindergarten students on the

Stevenson Campus have been allocated contiguous and dedicated space within the building. Id.

at p. 8. Whether this means that, like in the Richman campus, no students from any other school

need to come into P.S. 138s space, and vice versa, is left unsaid. Nor does the Revised EIS

provide any information regarding whether the P.S. 138 students share any facilities with the

high school students.

Defendants essentially claim that because there have been no unusual problems with

three andfour year old pre-Kindergardenersthere should be no problems with elementary

school aged students. The fact that Defendants assume there is the same risk that contraband

will be introduced to the school by seven, eight, nine and ten year old elementary school

students, who are not always supervised by a parent on their way to or from school, as there is

with three and four year old pre-Kindergardeners is another example of Defendants superficial


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analysis of the impact of this co-location.15 The Brandeis Campus has metal detectors because

Defendants believe they are necessary to ensure the students and staffs safety.

Moreover, Defendants creation of a separate cafeteria/gymnasium for SACS, see supra

I.A.1., demonstrates that, on some level, they recognize the potential risks of combining these

populations.16 Defendants have blinded themselves to the very real possibility that a high school

student could circumvent this security by bribing, intimidating or threatening an unsupervised

SACS student into bringing contraband, including a weapon, into the building. This Court

should make them open their eyes and find that the Revised EIS and Revised BUP do not

adequate address the issues of this co-locations impact on the students, the community and

school safety.

2. Effect on Personnel NeedsThe Education Law and Chancellors 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);

Chancellors 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

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

15 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.

16 On the Richman Campus, which Defendants hold up as an example justifying the co-location of an elementaryschool with high schools, the students share all facilities. See Brooks Aff., Exhibit 6. Likewise, students inBuilding M013 also share facilities such as the cafeteria and gymnasium. See Brooks Aff., Exhibit 8 at p. 11-15.Defendants creation of the separate gym/cafeteria for SACS demonstrates that Defendants do not truly view theseco-locations, and the risks they pose to student safety, as comparable situations.


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staff, or the costs associated with the monitoring or the demands. The Revised EIS does not

even address ifcurrent 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 Learning17 had 68 violent and/or disruptive incidents take

place in the hallways of the Brandeis Campus which were recorded in DOEs 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

throughout the building but particularly within SACS space, or how such incidents will be

handled should they take place within SACS space.

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. In light of Defendants

failure to acknowledge the current safety and security situation on the Brandeis Campus, as well

as the added security risks created by the co-location, their position is not surprising.

CONCLUSION

The purpose behind the Education Laws requirements for the EIS and BUP is to ensure

that co-locations are not forced upon schools and communities. As Assembly Member Glick

stated in support of the 2010 Amendments to the Education Law:

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


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Past behavior is a pretty good indicator of future behavior[,] and theattempt, the very noble attempt, to put in place a process that would forcea public process [with] more transparency in the co-location isreminiscent, to me, of the same type of process that was put in place in ourschool governance around the issue of school closures. Communities

indicated that there were 19 schools that were being closed without anyreal process. The Department of Education said, Oh, no, no, no. Wefollowed every step, we had these hearings. [PEP, the DOE, and theChancellor] were taken to court, and the [Mulgrew] court rejected as asham as an outright sham the process that was engaged in by theDepartment of Education and voided those closures.

I believe we are likely to see the same [with] forced co-locations.

Assembly Debate Transcripts, 2010 Chap. 101 at 106.18 It would make a mockery of the

Education Law, in particular the 2010 amendments, if Defendants are permitted to issue EISs

and BUPs that offer nothing more than Defendants unsupported assumptions that a co-location

will have no impact on the existing schools and students in buildings slated for co-locations. The

Revised EIS and Revised BUP for the SACS co-location do just that. They are devoid of any

meaningful analysis of the current schools and students needs for space, services and security,

and what is offered is grossly misleading. These deficiencies so misinformed the community

and PEP that this Court should annul the PEP vote on the basis that it is arbitrary and capricious.

Accordingly, Plaintiffs request summary judgment on their Third, Fourth, Fifth and Sixth Causes

of Action.

Dated: New York, New YorkAugust 3, 2011

PHILLIPS NIZER LLP

By: /s/ Jon Schuyler BrooksJon Schuyler BrooksMarc Andrew LandisElizabeth A. Adinolfi

Attorney for Plaintiffs

18 The Assembly Debate Transcript was previously provided in the Appendix to Plaintiffs First Memorandum ofLaw In Support of Their Motion For Partial Summary Judgment.


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666 Fifth AvenueNew York, NY 10103(212) 977-9700

Documents

Plaintiffs' Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment