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, CAROL BARKER, individually and as parent and natural guardian of OMARI BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural

guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural

guardian of HARRY D. JORDAN, infant, KA VERY KAUL, individually and as parent and natural guardian of ASHOK KAUL, infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural

guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLlA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent

and natural guardian of ALlY A CLUNIE, infant,

Petitioners,

-against-

THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK alkla THE PANEL FOR EDUCATIONAL POLlCY, THE DEPARTMENT OF EDUCATION OF THE CITY:

OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of the City School District of the City of New York,

Respondents.

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1140506.2

Index No.

----

NOTICE OF PETITION

PLEASE TAKE NOTICE THAT, upon the annexed Verified Petition, dated April 8, 2011, and the exhibits annexed thereto, and the accompanying Memorandum of Law, the undersigned will move this Court at the Courthouse located at 60 Centre Street, New York, New York, in the Motion Submission Part, Room 130, on May 3,2011, at 9:30 a.m., or as soon thereafter as counsel may be heard, for (1) a judgment and/or order pursuant to CPLR §7806 directing Respondents to comply with their obligations under Education Law Articles 52-A and 56, the Chancellor's Regulation A-190 and the State and City Environmental Quality Review Acts; (2) a judgment pursuant to CPLR §7803(2) annulling the vote of the Panel for Education Policy approving the co-location of a new public charter elementary school, Success Academy Charter School ("SACS") into an existing public school building, the Brandeis Educational Campus (M470) that currently houses five separate high schools; (3) a declaration pursuant to CPLR § 3001 that Respondents have failed to comply with the statutory requirements contained in Education Law §§ 2590-h, 2853 (a-3)(2), Chancellor Regulation A-190 and the State and City Environmental Quality Review Acts; (4) a judgment pursuant to CPLR § 7806 enjoining the colocation of SACS in the Brandeis Educational Campus and (5) for such other and further relief in Petitioners' favor as this Court may deem just and proper.

2

1140506.2

PLEASE T AKE FURTHER NOTICE that, pursuant to CPLR § 7804( c), a Verified

Answer and supporting affidavits, if any, shall be served at lease five (5) days before the return

date of this Petition, and a reply, together with supporting affidavits, if any, shall be served at

PHILLIPS NIZER LLP

least one (1) day before the return date of this Petition.

Dated: New York, New York April 8, 2011

Marc Andrew Landis Jon Schuyler Brooks Meagan A. Zapotocky

Attorneys for Petitioners 666 Fifth Avenue

New York, New York 10103-0084 (212) 977-9700

3

1140506.2

Petitioners Lisa Steglich, Ric Cherwin, Carol Barker, Gina DeMetrius, Kimberly Jamot,

Nydia Jordan, Kavery Kaul, Ruben and Geraldine Lopez, Madeline Olmeda, Lazara Quinones,

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

-------------------------------------------------------------------- J(

LISA STEGLICH, individually and as parent and natural: guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian ofOMARI BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural

guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural

guardian of HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian

of ASHOK KAUL, infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural

guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent

and natural guardian of ALlY A CLUNIE, infant,

Petitioners,

-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-Designate of the City School District of the City of New York,

Respondents.

-------------------------------------------------------------------- J(

1137810.14

Index No.

----

Date of Purchase:

April 8, 2011

VERIFIED PETITION

and Marilynn Sarjeant, and infant Petitioners Alexander Herlihy, Marley Cherwin, Omari

Brown, Sebastian DeMetrius, Margaret Thomas, Harry D. Jordan, Ashok Kaul, Shane Lopez,

Cristina Jullia Cruz, Doris Alcantara and Aliya Clunie, by their respective parents and natural

guardians, all by their attorney Phillips Nizer LLP, as and for their Verified Petition hereby

allege as follows:

Nature of the Proceeding

l. This proceeding challenges the recent decision of the Board of Education of the

2

City School District of the City of N ew York, now referred to as the Panel for Educational Policy

("PEP"), to co-locate a new public charter school serving kindergarten and elementary school

children in an existing public school building that already houses five separate high schools. The

new charter school is known as the Success Academy Charter School ("SACS"), and the existing

public school building is known as the Brandeis Educational Campus located on the Upper West

Side of Manhattan (the "Brandeis Campus");'

2. The PEP decision was the culmination of a deeply-flawed process orchestrated by

the Department of Education of the City of New York (the "DOE"). At almost every step along

the way, the DOE failed to comply not only with the applicable provisions of the New York

State Education Law, but also with the applicable regulations of its own Chancellor and with the

PEP By-Laws.

3. As a matter oflaw, therefore, the PEP decision was arbitrary and capricious, and

must be vacated.

4. Accordingly, this proceeding seeks an order (a) declaring the PEP decision to be

invalid, (b) vacating the PEP decision, (c) ordering and directing respondents to comply with

IOn March 11,2011, the Charter School Institute of the State University of New York approved SACS's request to change its name to "Upper West Success Academy Charter School." As used herein, "SACS" means Upper West Success Academy Charter School.

1137810.14

their obligations under Articles 52 and 56 of the Education Law, Chancellor's Regulation and the State and City Environmental Quality Review Acts and (d) permanently enjoining co-location of the SACS kindergarten and elementary school in the Brandeis Campus.

Parties

5. Petitioner Lisa Steglich is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Alexander Herlihy, a student enrolled in the 9th grade at Frank McCourt High School ("Frank McCourt"), one of the five high schools occupying and utilizing the Brandeis Campus. Ms. Steglich also is the President of the Parent-Teacher Association of Frank McCourt.

6. Petitioner Ric Cherwin is a resident of the City and State of New York and a

parent natural guardian of infant petitioner Marley Cherwin, a student enrolled in the io" grade at The Global Learning Collaborative, ("Global Learning"), one of the five high schools occupying and utilizing the Brandeis Campus. Mr. Cherwin also is the President of the ParentTeacher Association ("PTA") and the Chair of the School Leadership Team ("SLT") of Global Learning.

7. Petitioner Carol Barker is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Omari Brown, a student enrolled in the 11 th grade at Innovation Diploma Plus ("Diploma Plus") , one of the five high schools occupying and utilizing the Brandeis Campus.

8. Petitioner Gina DeMetrius is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Sebastian DeMetrius, a student enrolled in the 10th grade at Frank McCourt.

3

1137810.14

4

9. Petitioner Kimberly A. Jarnot is a resident of the City and State of New York and

a parent and natural guardian of infant petitioner Margaret Thomas, a student enrolled in the 9th grade at Frank McCourt.

10. Petitioner Nydia Jordan is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Harry D. Jordan, a student enrolled in the 9th grade at Frank McCourt.

11. Petitioner Kavery Kaul is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Ashok Kaul, a student enrolled in the io" grade at Frank McCourt. Ms. Kaul also is Vice President of the PTA of Frank McCourt.

12. Petitioners Ruben and Geraldine Lopez are residents of the City and State of New

York and the parents and natural guardians of infant petitioner Shane Lopez, an Individual Education Program ("IEP") student enrolled in the 9th grade at Frank McCourt.

13. Petitioner Madeline Olmeda is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Cristina Jullia Cruz, a student enrolled in the io" grade at Global Learning.

14. Petitioner Lazara Quinones is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Doris Alcantara, an IEP student enrolled in the 9th grade at Frank McCourt.

15. Petitioner Marilynn Sarjeant is a resident of the City and State of New York and a

parent and natural guardian of infant petitioner Aliya Clunie, a student enrolled in the 9th grade at Frank McCourt.

1137810.14

16. Respondent The Board of Education of the City School District of the City of

New York, a/kJa PEP, is organized under and existing pursuant to the Education Law of the State

of New York.

17. Respondent DOE is the branch of the municipal government of the City of New

York that manages the City's public school system. The DOE is run by the Chancellor-designate

of the City School District, Respondent Dennis M. Walcott.

18. Respondent Dennis M. Walcott is the Chancellor-designate of the City School

District and functions as the chief executive officer and superintendent of the City School

District of the City of New York. The Chancellor operates through her administrative offices,

the DOE.2

5

Jurisdiction and Venue

19. This proceeding is brought pursuant to CPLR § 3001 to declare the DOE's (a)

Notice of Proposed Change of Utilization for the Brandeis Campus to be untimely, and (b) its

Educational Impact Statement ("EIS") and Building Utilization Plan ("BUP") for the Brandeis

Campus to be incomplete, incorrect, and/or insufficient.

20. This proceeding is brought pursuant to CPLR §§ 7803(3) and 7806 to annul the

PEP vote and vacate its decision approving the Brandeis Co-Location, as well as to enjoin

permanently the co-location of SACS in the Brandeis Campus.

21. Venue is proper in New York County pursuant to CPLR § 503 because it is the

County in which many of the Petitioners and all Respondents reside.

2 Because the Chancellor operates through the DOE, the Chancellor and DOE are referred to herein interchangeably. The Chancellor, DOE, the Board of Education of the City School District of the City of New York and the PEP are collectively referred to herein as Respondents.

1137810.14

Background

The Co-Location Process

22. In the most basic terms, co-location is a two-step process. First, the Chancellor

must determine whether a given school or, if it houses multiple schools, school building

(collectively, "School") is "under-utilized." Second, if the Chancellor determines under-

utilization exists, the Chancellor then may propose such a significant change in utilization of the

School, including the possibility of a co-location of another school, such as a charter school.

23. According to the DOE, a School is under-utilized when at least 300 seats either

are empty currently, or are projected to be empty over the next two-to-three years.

24. The process of assessing utilization levels is prescribed by New York State

Education Law: each year, the Chancellor collects data on enrollment/utilization for each school

in the city school district, and forwards to the community superintendent for each community

school district the data pertaining to the schools in that district; from the data, each community

superintendent formulates a capacity plan, and forwards that plan to the community district

education council ("CEC"); the CEC holds a public meeting on the superintendent's plan and, if

approved by the CEC, submits the plan to the Chancellor for approval and implementation. See

Educ. L. § 2590-e [17].3

25. Once the utilization assessment is complete, the Chancellor then may propose a

"significant change in utilization" for any School deemed under-utilized.

26. For each such proposal, the Chancellor must

3 Given the statutorily mandated jurisdiction of the CEC, this detailed process applies automatically for all schools in the city school district from pre-kindergarten through and including junior high. Educ. L. § 2590-e [17]. For purposes of significant change of use determinations and co-locations, this process appears to apply also to high schools. See Regulation of the Chancellor A-190 (October 7,2010) §§ LA and LD (defmitions, respectively, of "affected community school district" and "impacted Community Education Council").

6

1137810.14

7

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

Educ. L. § 2590-h [2-a](a).

27. New York State law specifies the minimum information an EIS must contain:

(i) the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial cots and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;

(ii) the impacts of the proposed school closing or significant change in school utilization to any affected students;

(iii) an outline of any proposed or potential use of the school building for other educational programs or administrative services;

(iv) the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, or other support services;

(v) the type, age and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such buildings' special features;

(vi) the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and

(vii) information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status.

1137810.14

8

Educ. L. § 2590-h [2-a](b). These same minimum requirements are stated also in the Regulation

of the Chancellor (the "Chancellor's Regulation") A-190, § II.A.l (Oct. 17,2010), available at http://docs.nycenet.eduJdocushare/dsweb/GetiDocument-3411 A-190%20FINAL.pdf. 4

28. If the significant change of use proposed by the Chancellor is the co-location of a

charter school in an existing School, the EIS also must include a statement of the rationale for the

co-location in the affected School, as well as a building usage plan ("BUP") prepared by the

Chancellor. Educ. L. §§ 2853 [3](a-3)(1), [3](a-3)(3); Chancellor's Reg. A-190 § II.A.2.a(i)-(ii).

29. New York State law specifies the minimum information a BUP must contain:

(A) the actual allocation and sharing of classroom and administrative space between the charter and non-charter schools;

(B) a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds which assures equitable access to such facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students;

(C) justification of the feasibility of the proposed allocations and schedules set forth in clauses (A) and (B) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;

(D) building safety and security;

(E) communication strategies to be used by the co-located schools; and

(F) collaborative decision-making strategies to be used by the colocated schools including the establishment of a shared space committee pursuant to paragraph (a-four) of this subdivision.

Educ. L. § 2853[3](a-3)(2); Chancellor's Reg. A-190 § ILA.2.a(ii)(a)-(f).

4 Chancellor's Regulation A-190 was amended October 7,2010 to implement amendments in the State Education Law that require not only a public review and comment process on all proposals by the Chancellor to close a school or make a significant change in school utilization, but also additional procedures in connection with the location or co-location of one or more charter schools in an existing public school. See Chancellor's Reg. A-190, Abstract.

1137810.14

30. The EIS, together with the BUP, must be made available to the public, and a

"shall be filed" with various school-related entities, including PEP and the affected CEC and

9

school based management ("school leadership team" or "SLT"). Educ. L. §§ 2590-h [2-a](c),

2853 [3](a-3)(5). The Chancellor's Regulation makes clear that "copy" means "hard copy."

Chancellor's Reg. A-190 § ILA.3.

31. The Chancellor, the CEC and the SLT must hold a joint public hearing about the

EIS and the BUP (the "Joint Hearing") on a date no less than thirty days, and no more than forty-

five days, after those documents were filed properly with all designated entities. Educ. L. §

2590-h [2-a]( d).

32. The Chancellor must submit all significant change of utilization proposals to PEP.

Educ. L. § 2590-h [2-a](e); Chancellor's Reg. A-190 § II.C.1.

33. Prior to considering a significant change of utilization proposal, however, PEP

must

undertake a public review process to afford the public an opportunity to submit comments on the proposed item. Such public review process shall include notice of the item under city board consideration which shall be made available to the public, including via the city board's official internet website, and specifically circulated to all community superintendents, community district education councils, community boards, and school based management teams, at least forty-five days in advance of any city board vote on such item. Notice of the proposed item under city board consideration shall include:

(i) a description of the subject, purpose and substance of the proposed item under consideration;

(ii) information regarding where the full text of the proposed item may be obtained;

(iii) the name, office, address, email and telephone number of a city district representative, knowledgeable on the item under consideration, from whom any information may be obtained concerning such item;

(iv) date, time and place of any hearing regarding the proposed item, if applicable;

(v) date, time and place of the city board meeting at which the city board will vote on the proposed item; and

1137810.14

(vi) information on how to submit written or oral comments regarding the item under consideration.

Educ. L. § 2590-g [8](a) (emphases added); Chancellor's Reg. A-190 § ILC.2; Bylaws of

the Panel for Educational Policy of the Department of Education of the City School

District of the City of New York (the "PEP By-Laws"), § 2.5.1(h) at pp.7_8.5

10

34. Following the public review process, but prior to any PEP vote on a significant

change of utilization proposal, PEP must make available to the public "an assessment of all

public comments ... received prior to twenty-four hours before the [PEP] meeting at which such

item is subject to a vote" ("Public Comment Analysis").

35. In pertinent part, the Public Comment Analysis must include "(i) a summary and

an analysis of the issues raised and significant alternatives suggested," and "(ii) a statement of

the reasons why any significant alternatives were not incorporated into the proposed item."

Educ. L. § 2590-g [8](c)(i)-(ii); Chancellor's Reg. A-190 § II.CA.

36. To approve a proposed significant change of utilization, a majority of the whole

PEP membership - 7 of 13 - must vote in the affirmative. PEP By-Laws § 2.2 at p.6.

37. Even if PEP approves a proposed significant change of utilization, the change

does not take effect until (a) all the provisions of Article 52-A of the Education Law and

Chancellor's Regulation A -190 have been satisfied, and (b) the school year in which PEP

approved the proposal has ended. Educ. L. § 2590-h [2-a](e); Chancellor's Reg. A-190 § II.C.5.

The Brandeis Campus

38. The Brandeis Campus is located at 145 West 84th Street, New York, New York, in

Community School District 3.

5 The PEP By-Laws are available at http://schools.nyc.govINRIrdonlyresIB432D059-6BFE-4198-8453- 466FDE2B22D5/69835/PEPBylawsFina191409.pdf.

1137810.14

39. The Brandeis Campus is not a campus in the commonly-used sense of that word.

11

It consists of only one self-contained building. In DOE terms, it is known as "Building M4 70."

40. Currently, the Brandeis Campus houses five high schools:

• Louis D. Brandeis High School (03M470, "Brandeis High");

• The Urban Assembly School for Green Careers (03M402, "Green

Careers");

• Global Learning (03M403);

• Diploma Plus (03M404); and

• Frank McCourt (03M417).

41. Additionally, the Brandeis Campus houses a Living for the Young Family

Through Education ("L YFE") program. The L YFE program supports pregnant and parenting

students enrolled in a DOE school by providing childcare and referral services.

The Brandeis Campus Co-Location Process

A. The Preliminary Utilization Assessment

42. Upon information and belief, on or about October 6,2010, the DOE issued an

"Under-utilized Space Memorandum" (the "20 I 0 Utilization Memo") that, ostensibly, lists the

Schools the DOE "has preliminarily determined ... are 'under-utilized. '" A true and correct

copy of the 2010 Utilization Memo, as acquired from the DOE website, is annexed hereto as

Exhibit 1.

43. The Brandeis Campus is included in the 2010 Utilization Memo, listed as having

a "Building Enrollment" of I ,885 high-school students and a "Target Capacity" of 2, 148 such

students. Ex. 1 at p.3.

B. The Space Utilization Survey

44. Upon information and belief, on or about November 9,2010, two individuals

from the DOE Office of Space Planning visited the Brandeis Campus and conducted what they

1137810.14

characterize as a "space utilization survey." By correspondence dated November 22,2010 and

addressed solely to "Principals," they provided a "summary" of their survey (the "Site Visit

Summary"). A true and correct copy of the Site Visit Summary is annexed hereto as Exhibit 2.

C. The EIS and the B UP

45. On December 17,2010, the DOE issued an EIS and BUP that outlined its

proposal to co-locate SACS within the Brandeis Campus (respectively, the "Brandeis EIS" and

"Brandeis BUP"). True and correct copies of the Brandeis EIS and the Brandeis BUP are

annexed hereto as Exhibits 3 and 4, respectively.

46. According to the Brandeis EIS, Brandeis High currently serves students in grades

nine through twelve, but is in the process of phasing out, and will no longer accept new ninth or

tenth grade students. Brandeis High School is scheduled to close in June 2012. Ex. 3 at p.l.

47. Green Careers opened in September 2009 and serves 100-125 students per grade.

Green Careers currently serves students in grades nine and ten, but will phase in grade eleven in

the 2011-2012 school year, and grade twelve in the 2012-2013 school year. Ibid.

48. Global Learning opened in September 2009 and serves 100-125 students per

grade. Global Learning currently serves students in grades nine and ten, but will phase in grade

eleven in the 2011-2012 school year, and grade twelve in the 2012-2013 school year. Ibid.

49. Diploma Plus, a transfer high school, opened in September 2009, and currently

serves over-age and under-credited students in grades nine through twelve." Diploma Plus has

expanded and already is "at scale," serving approximately 250 students. Id. at p.5.

6 A transfer high school is one designed to re-engage students who are behind or who had dropped out. http://schools.nyc.gov/ChoicesEnrollment/AlternativesHSlTransferHS/default.htm#Transfer.

12

1137810.14

50. Frank McCourt opened in September 2010 and serves 100-125 students per grade.

Frank McCourt currently serves students in ninth grade, but will phase in grades ten, eleven and twelve in the 2011-2012,2012-2013, and 2013-2014 school years, respectively. !d. at p.2.

51. According to the Brandeis EIS, in school year 2011-2012, the first year of the

proposed co-location, SACS will enroll approximately 188 students in kindergarten and first grade. In school year 2012-2013, SACS would add second grade, pushing enrollment to 249 students. In each of the next three school years, SACS would add the next higher grade, admitting an additional 84 students each year. In other words, by school year 2015-2016, SACS will serve at least approximately 481 students, a population that will at least equal, and more likely exceed, anyone of the Brandeis Campus high schools. Ibid.

52. According to the Brandeis EIS, ifthe co-location proceeds, the high schools and

SACS will share several rooms in the Brandeis Campus, including the gymnasium and auditorium. Ex. 3 at p.3. The high schools and SACS, however, will not share the existing cafeteria: "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." Ibid.

53. The Brandeis BUP outlines the proposed allocation of classrooms and

administrative space among SACS, Brandeis High, Green Careers, Global Learning, Diploma Plus and Frank McCourt. It also includes a proposal for the collaborative use of shared resources and spaces between the schools, including cafeterias, libraries, gymnasiums and recreational areas "which assures equitable access to such facilities." Ex. 4 at p.1.

54. The Brandeis BUP purports to rely upon the DOE Citywide Instructional

Footprint ("Footprint") "to allocate rooms in an unbiased manner." In co-location arrangements, the information set forth in the Footprint serves as a baseline for deciding space allocation. The

13

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(i) Formula for Primary Schools;

(ii) Formula for Middle Schools; (iii)Formula for Primary/Middle Schools; (iv)Formula for High Schools; and

(v) Formula for Middle/High Schools.

purpose of the Footprint is "to ensure that the space allocation plan for all schools is fair and

equitable." Ex. 4 at p.l n.1.

55. The Footprint is merely an instructional translation of the information contained

in the DOE's Enrollment-Capacity-Utilization Report, also known as the "Blue Book." Copies

of relevant portions of the Blue Book are annexed hereto as Exhibit 5. The Blue Book for the

2009-2010 school year (the most recent available to the public) recognizes that the "method of

calculating capacity differs by grade and by room size." Blue Book at p.1.

56. For example, grades K-3 have a target capacity of 20 students per classroom, and

grades 9-12 have a target capacity of 30 students per classroom. Blue Book at p.2.

57. The Blue Book also includes an "Explanation of Capacity Formula" based upon

grades or mixed grades. For example, the Blue Book includes the following formulae:

The Blue Book does not include a "formula for primary/high schools," such as the proposed co-

location contemplates.

D. The PEP Notice and Amended Notice of the Proposed Co-Location

58. Upon information and belief, on or about December 17,2010, PEP published the

Notice of The Proposed Co-location ofa New Public Charter School, Success Academy Charter

School, with Existing Schools in the Brandeis Educational Campus (the "PEP Notice"). A true

and correct copy of the PEP Notice, as acquired from the DOE website, is annexed hereto as

Exhibit 6.

14

1137810.14

59. Section "V." of the PEP Notice, in pertinent part, reads as follows:

v. Date, time and place of joint public hearing for this proposal.

15

To Be Determined 6:00p.m.

Brandeis Educational Campus 145 West 84th Street

New York, NY, 10024

Ex. 6 § V.

60. Section "VI." of the PEP Notice, in pertinent part, reads as follows:

VI. Date, time and place of the Panel for Educational Policy

meeting at which the Panel will vote on the proposed item.

February 1, 2011 at 6:00 p.m. Brooklyn Technical High School 29 Fort Greene Place

Brooklyn, NY 11217

Ex. 6 § VI.

61. The PEP Notice was published forty-six (46) days prior to the February 1, 2011

PEP meeting.

62. Upon information and belief, on or about December 22,2010, PEP published an

Amended Notice of The Proposed Co-location of a New Public Charter School, Success

Academy Charter School, with Existing Schools in the Brandeis Educational Campus (the "PEP

Amended Notice"). A true and correct copy of the PEP Amended Notice, as acquired from the

DOE website, is annexed hereto as Exhibit 7.

63. Section "v" of the PEP Amended Notice, in pertinent part, reads as follows:

V. Date, time and place of joint public hearing for this proposal.

January 25, 2011 6:00p.m.

Brandeis Educational Campus 145 West 84th Street

1137810.14

16

New York, NY, 10024

Ex. 7 § V.

64. According to the DOE website, the PEP Notice was published only in English.

By contrast, the PEP Amended Notice was published in both English and Spanish. See http://schools.nyc.gov/AboutUs/leadership/PEP/publicnotice/2010-2011IFeb12011Proposals.

E. The Joint Hearing

65. On January 25,2011, DOE held the so-called Joint Hearing regarding the

proposal to co-locate SACS at the Brandeis Campus. Approximately 371 members of the community attended the hearing and 112 people spoke. At the hearing, Respondents heard testimony concerning the numerous errors in the Brandeis EIS and Brandeis BUP, the inherent danger of putting kindergarteners and high-school students - some 18 to 20 years old - in the same building, and the inequitable and incomparable space sharing and allocations, including the need to retrofit rooms for kindergarten children and the need for a separate entrance and cafeteria, when the building already has one.

F. The Public Comment Analysis

66. On January 31,2011, the DOE published the Public Comment Analysis on the its

website. A true and correct copy of the Public Comment Analysis is annexed hereto as Exhibit 8.

67. According to the Public Comment Analysis, DOE received approximately 303

written and/or oral comments in opposition to the proposed co-location of SACS in the Brandeis Campus, and only 10 comments in support. DOE also received approximately 968 copies of an online petition opposing the co-location citing "the overcrowding issues in the Southern part of

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District 3, the lottery preference of the charter school, the issues with co-locating an elementary

17

school with high schools." Ex. 7 at p.ll.

G. The PEP Meeting and Vote

68. On February 1, 2011, despite the overwhelming public opposition to the proposed

co-location documented in the Public Comment Analysis, and despite the numerous errors and

deficiencies in the Brandeis EIS and Brandeis BUP discussed at the so-called Joint Hearing, the

PEP members voted 7-4, with one abstention, in favor of the proposal. PEP Meeting Minutes,

Feb. 1,2011, available at http://schools.nyc.govlNRlrdonlyres/02AA7F36-EB67-4EBD-A1EO-

569A4EEB4AB4/98724/moa2112.pdf. In other words, given that PEP must act by majority of

the whole panel, the proposal was approved by the least possible number of PEP members.

The Brandeis Co-Location Process was Procedurally and Substantively Defective

69. The Respondents failed to comply with procedural requirements applicable to the

co-location of a charter school in an existing public school.

A. The Preliminary Utilization Assessment

70. The "basic guidelines used to determine which schools are included" in the 2010

Utilization Memo are as follows:

Criteria for initial inclusion:

• Minimum of 300 seats currently available - per the 2009-2010 Blue Book

OR

• Minimum of 300 seats projected to be available over the next 2-3 years (e.g., a current school in the building is phasing out)

Schools were removed from the list if:

• The projected number of available seats over the next 2-3 years is or will be less than 300 (e.g., one or more schools are in the midst of phasing into the building or part of a planned expansion).

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Important Notes

• No space changes will be proposed without further consultation between [DOE's Division of] Portfolio [Planning] and you and your school community.

• Any proposed space change that involves the co-location of another school organization will require a site visit by the Division of School Facilities for an on-site review of the building.

• Any proposed space change that requires approval by the Panel for Education [sic] Policy will be preceded by a formal public notice and a public hearing held at the school, where community members can provide feedback on the proposal prior to the vote.

Ex. 1 at p.2 (underscoring in original; italicized bold emphases addedj.i

1. The Brandeis Campus is Not Under-Utilized

71. According to the 2010 Utilization Memo, DOE calculated there were only 263

available seats -less than the magic 300 - in the entire Brandeis Campus. Ex. 1 at p.3.

72. Apparently, DOE included the Brandeis Campus because one of its high schools,

Brandeis High, is being phased out and will close at the end of the 2011-2012 academic year. As

DOE itself acknowledged in the EIS, however, the other four high schools located in the

Brandeis Campus are being phased in and expanding. Ex. 3 at p.l.

73. In the Brandeis EIS, DOE claims the enrollment in the remaining grades at

Brandeis High is 609. Ex. 3 at p.3. Assuming half those students are phased out at the end of

the 2010-2011 school year, then the number of empty seats at the Brandeis Campus for the 2011-

2012 school year will rise from the 263 indicated in the 2010 Utilization Memo to 568.

74. Green Careers, Global Learning and Frank McCourt, however, each will phase in

18

an additional 100-125 students for the 2011-2012 school year. Ex. 3 at p. 3. Those additions

will bring 300 to 375 new students to the Brandeis Campus for the 2011-2012 school year.

7 For ease of reference, the Petitioners have paginated the 2010 Utilization Memo.

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75. According to DOE's own criteria, therefore, the Brandeis Campus should have

been removed from the 2010 Utilization Memo. Ex. 1 at p.2.

2. The SLTs Challenged the inclusion of the Brandeis Campus

76. According the 20 I 0 Utilization Memo, the "DOE has asked principals to review this determination with their School Leadership Teams (SLT) and provide feedback to inform future decisions about potential changes to your space and building." Ex. 1 at p.I.

77. To the extent the five principals ever undertook such a review, the SLTs rejected

the notion that the Brandeis Campus was under-utilized.

78. DOE rejected the SLT feedback.

3. DOE's Division of Portfolio Planning Failed to Consult

79. The 2010 Utilization Memo guarantees that "[n]o space changes will be proposed without further consultation between Portfolio and you and your school community." Ex. 1 at p.2 (emphasis added).

80. "School community" includes not only a principal, but also the SL T, the CEC, the

community superintendent, the Citywide Council on High Schools, and others. See generally, Chancellor's Reg. A-I90 §§ ILA.3-4 and A-655 § X.B.

81. In breach of that guarantee, no later than December 17, 2010, the DOE proposed

not only a space change at the Brandeis Campus, but also the co-location of SACS in the Brandeis Campus. See Exs. 3-5.

82. DOE failed to comply with its own procedure regarding determinations of under-

utilized public school buildings.

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B. The Site Visit Survey

83. The 2010 Utilization Memo guaranteed also that "[a]ny proposed space change

that involves the co-location of another school organization will require a site visit by the Division of School Facilities for an on-site review of the building." Ex. 1 at p.2 (emphasis added).

84.

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Upon information and belief, the only "on-site review of the building" was made

by the DOE Office of Space Planning. See Ex. 2.

85. Upon information and belief, the Office of School Planning is not part of the

Division of School Facilities. See DSF Organization Chart, available at http://www.optosfns.orgi dsf/referencel dsf _ org. pdf.

86. DOE failed to comply with its own procedure regarding the on-site review of the

building.

C. The Brandeis EIS and BUP are Inaccurate, Incomplete and Insufficient 1. Current Enrollment of the Affected School

87. The Education Law and Chancellor's Regulations require that the EIS include the "current and projected pupil enrollment of the affected school". Educ. L. § 2590-g [2-a](b)(i); Chancellor's Reg. A-190 § ILA.1.a.

88. The DOE nonetheless relied upon outdated student enrollment figures for at least

one of the Brandeis Campus high schools, and incorrectly reported the 2010-2011 Brandeis High enrollment as being 609 students. Ex. 3 at pp. 3,6.

89. In fact, as DOE knows and publishes on its own website, the 2010-2011 Brandeis

High enrollment is 821 students. Louis D. Brandeis High School 2010-2011 Comprehensive Educational Plan (CEP), § III, Part B ("School Demographics and Accountability Snapshot")

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3. Impact on Community and Affected Students

(Version 2011-2B - January 2011).8 A true and correct copy of the 2010-2011 Brandeis High

School Demographics and Accountability Snapshot, as acquired from the DOE website, is

annexed hereto as Exhibit 9.

90. Whether inadvertent or intentional, this single error reflects an undercount of the

enrollment at just one of the five Brandeis Campus high schools by approximately thirty-five

(35%) percent.

91. DOE failed to comply with the Education Law, and the Chancellor's Regulations,

regarding the requirement to include in the Brandeis EIS an accurate current enrollment of the

affected school.

2. Space Allocation based on Enrollment

92. As set forth in the Brandeis BUP, the methodology used by the DOE to allocate

space in the building took into account the "total students in the building by each school." Ex. 4

at p.1. Because the enrollment figure used in the Brandeis EIS for Brandeis High is understated

significantly, the space allocated to that school in the Brandeis BUP also is understated.

Consequently, there is less "available space" to be allocated to SACS then reported in the BUP.

93. 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.

8 According to the insideschools.org project of The New School's Center for New York City Affairs, as of November 2010 - weeks before the release of the Brandeis EIS - enrollment at Brandeis High was even higher: 864 students. http://insideschoo1s.org/index.php?fs=153&str=Brandeis&formtype=name

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94. The Brandeis EIS does not meaningfully address the impact on either the

community or the affected students. Instead, the Brandeis EIS merely offers a self-serving

conclusory statements. Ex. 3 at pp.3-4, 5-6.

95. For example, to address the panoply of problems that may ensue from throwing

kindergarteners and first graders into a building filled with upward of 1,500 later-age teenagers,

the Brandeis EIS offers only fifty-three words:

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The DOE does not anticipate that the co-location of elementary school students with high school students would be detrimental to any of the students attending school in the Brandeis campus. The DOE, in consultation with the Building Council, would allocate contiguous and dedicated space to SACS to ensure the safety of all students."

Ex. 3 at pA. Such boilerplate assertions do not satisfy the requirement of hard-boiled analysis.

96. "Contiguous and dedicated space" alone will not ensure the safety of all students,

if only because "contiguous and dedicated space" does not mean segregated space. Indeed, DOE

concedes students at SACS will share "several rooms" with high-school students. Ex. 3 at p.3

("All schools would share several rooms in [Brandeis Campus], including the gymnasium and

the auditorium."). Given that fact, and that "students at SACS would not be subject to scanning

to gain entry to the building," id. at pA, 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 .... " See Community Board 7 Resolution re: Proposed Co-Location of

Upper West Success at the Brandeis High School, dated January 4, 2011, annexed hereto as

Exhibit 10. The Brandeis EIS ignores that impact.

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97. The Brandeis EIS ignores also the very real impact on the high-school students of

the space re-allocation that is buried in the Brandeis BUP. See Ex. 3 at p.5 ("a proposal of a

shared space schedule is included in the attached BUP"). Each of the four high schools that will

remain after Brandeis High closes in June 2012 will be forced to surrender precious classroom

space: Green Careers will lose 4 full-size classrooms; Global Learning will lose 3 full-size and 1

half-size classroom; Diploma Plus will lose 2 full-size and 1 half-size classrooms; and Frank

McCourt will lose 2 full-size and 1 half-size classrooms. Ex. 4 at pA. The Brandeis EIS

dedicates no words - not even fifty-three of them - to explain how the high schools and its

23

students utilize the classrooms that DOE will rip from them to support the SACS co-location.

98. Moreover, the Brandeis 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). Ex. 4 at p.2. Upon information and

belief, that calculation - derived from the Site Visit Summary - counts as full-size classrooms

the following spaces:

(1) room "KIT2," a kitchen of 1728 square feet;

(2) room "B22," a dance studio with mirrored walls;

(3) rooms "215" and "215TV," a 1430 square foot theatre and its control

room;

(4) room "218," the ceramics studio;

(5) room "B7," a 1428 square foot platformed music room; and

(6) room "11 OC," a room (upon further information and belief) leased to an outside group.

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

iz" grade classrooms used for regular instruction." See Exhibit 5, Blue Book, p. H2. In sum,

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

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99. DOE failed to comply with the Education Law, and the Chancellor's Regulations,

regarding the requirement to include in the Brandeis EIS an assessment of the ramifications upon the community and the impact upon the affected students.

4. Effect on Personnel Needs

100. 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.l.h.

101. The Brandeis 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 20 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 staff, or the costs associated with the monitoring or the demands.

102. DOE failed to comply with the Education Law, and the Chancellor's Regulations, regarding the requirement to include in the Brandeis EIS an assessment of the effect on personnel needs or the costs thereof.

5. Recent or Planned Improvements

103. The Education Law and Chancellor's Regulations require that the EIS include "recent or planned improvements to [the] school building." Educ. L. § 2590-g [2-a](b)(v); Chancellor's Reg. A-190 § II.A.1.i.

104. Upon information and belief, in recent years the City of New York through the DOE has expended approximately $17.5 million in capital improvements for the Brandeis Campus. The Brandeis EIS, however, omits any direct mention of these expenditures. Instead, it

24

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provides, "At present, the DOE is engaged in restructuring the M470 facility to accommodate multiple school organizations. Facilities needs for SACS would be completed as part of this restructuring." Ex. 3 at p.14. The DOE does not describe what "facilities needs" would be completed for SACS, nor does it describe the type of restructuring being done at M470 or the cost of the restructuring. The EIS does not address the substantial expense involved in retrofitting a high school building to serve kindergartners, which may jeopardize some unknown portion of the utility of the recently-invested $17.5 million in renovations and improvements.

105. DOE failed to comply with the Education Law, and the Chancellor's Regulations, regarding the requirement to include in the Brandeis EIS detailed information about recent or planned improvements to the Brandeis Campus.

D. The Brandeis BUP's Space Allocation is Neither Equitable nor Comparable

106. 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 § ILA.2.c.

107. The Brandeis BUP includes a "justification" section, but it fails to provide a credible, supportable justification.

108. The Brandeis Campus was designed, and historically operated, as a high school.

The transformation of "Brandeis High" into "Brandeis Campus" has, until now, not interfered with the essential character of the building, in that the rules of space allocation applied equally to all the occupants because each of them was a high school.

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109. As noted previously, however, the rules of space allocation for elementary

schools are different than, and preferential to, those for high schools.

110. For example, 20 elementary school students qualify as a "section," and each

section is entitled to a full-size classroom. By contrast, DOE targets 30 high school students to

qualify as a section and become entitled to the same size classroom. An elementary student is

allocated up to 150% of the space allocated to a high school student. Ex. 3 at pp.4-5; Ex. 4 at

pp.1-2.

Ill. Elementary schools also receive more space through a "cluster room" allocation.

The number of cluster rooms allocated is based on the elementary school's enrollment. Ex. 4 at

pp.1-2.

112. As a result of these disparate allocation rules, SACS students automatically will

receive a disproportionate share of space than existing Brandeis Campus high school students.

This results in a space allocation that is not - and cannot be - either equitable nor comparable.

113. Furthermore, as set forth above, the Brandeis Campus high schools will lose

valuable space other than classrooms, such as a kitchen, dance studio, music room and theater,

since these rooms are counted as "regular classrooms" in the Footprint. The non-compensable

loss of such unique and irreplaceable spaces results in irreparable injury which, by definition, is

inequitable (hence the cure being the equitable remedy of injunction).

114. Moreover, the Brandeis EIS and BUP propose to renovate "four rooms adjacent to

the current cafeteria" to build an additional cafeteria in the Brandeis Campus for the exclusive

use of the SACS students. Ex. 3 at p.3; Ex. 4 at p.3 & n.6.9 This land grab is elective in that the

9 Those four rooms currently store Brandeis High's student records, which would be relocated to a new location in the Brandeis Campus. Ex. 3 at p.3. According to the DOE Footprint, "adequate storage will be provided for all organizations within the building." Footprint, note 7, annexed hereto as Exhibit 11. Notwithstanding this

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27

capacity of the existing cafeteria is sufficient to serve the entire Brandeis Campus. Any space

allocated for an otherwise unnecessary second cafeteria dedicated only to SACS students is

space impermissibly denied to the Brandeis Campus high school students.

115. Perhaps more importantly, the Education Law and the Chancellor's Regulations

actually classify cafeterias 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); Chancellor's Reg. A-190 § II.A.2.b. The proposed construction

of a separate, dedicated cafeteria for the SACS students, as set forth in the Brandeis 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." Ibid.

Obviously, ifboth cafeterias are built, and each is dedicated to a different clientele, they are not

shared, and the customers of one cafeteria will not have any access - let alone equitable access -

to the other.

116. DOE failed to comply with the Education Law, and the Chancellor's Regulations,

regarding the requirement to include in the Brandeis BUP a justification of how the proposed

allocations would result in an equitable and comparable use of the Brandeis Campus.

E. The DOE Failed to Comply with the Notice Requirements

117. Upon information and belief, the DOE failed to "file" the Brandeis EIS and BUP

with the SLTs of certain affected schools. Upon further information and belief, some SLTs,

including SLT Chairpersons, did not receive notice of the Brandeis EIS and BUP, and/or the

Joint Hearing, in a timely fashion.

requirement, neither the Brandeis EIS nor the BUP discloses where the four rooms' worth of student records will be located.

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28

118. Chancellor's Regulation A-190, which purports to implement Education Law Articles 52-A and 56, narrowed the requirements of Education Law 2590-h (2-a)(d) by only requiring the Chancellor "file" the EIS by mailing to the "principal(s) of the impacted school(s) in his or her capacity as a member of the SL T." Regulation A -190(II)(3). Pursuant to the regulation, mailing a the principal a copy of the EIS satisfies her burden under the statute. A review of the Chancellor's Regulation makes clear that the Chancellor had little intention of complying with the statutory notice requirements mandated by the Legislature.

119. Chancellor's Regulation A -190 also requires the Chancellor to consult with the principal of the impacted school in his capacity as a member of the SLT and agree upon a date for the joint public hearing and a "joint agenda" for the hearing.

120. Chancellor's Regulation A-190 concerning proper notice to the SLT is in conflict with Education Law § 2590-h because it limits the notice requirements required by the statute. 121. Chancellor's Regulation A-190 concerning proper notice to the SLT, which bypasses notice to the SLT Chairperson, is also in conflict with Chancellor Regulation A-655, which addresses the significance of the SLT Chairperson.

122. Chancellor's Regulation A-655 was issued on March 24, 2010. The purpose of A-655 is to ensure the formation of School Leadership Teams ("SL T") in every New York City Public School and District Leadership Teams in every community school district.

123. According to A-655, an SLT "Chairperson" is not a mandatory member, but the principal is a mandatory member of the SLT. See A-655 (III)(B) and (D). However, the Chairperson of the SLT is responsible for scheduling meetings, ensuring that team members have the information necessary to guide their planning, and focusing the team on education issues of

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importance to the school. A-655(III)(D)(2). The Chairperson also "ensures that voices of all team members are heard." !d.

124. It is inconsistent that Chancellor's Regulation A-190 requires only that the Chancellor give notice to the principal, in his capacity as an SLT member, when Regulation A- 655 specifies the role of the SLT Chairperson as being responsible for scheduling meetings and ensuring that voices of all team members are heard. A-655(III)(D)(2). With respect to notice to the SLT, at the very least, the SLT Chairperson should have received notice of the EIS, BUP and joint public hearing from the DOE.

125. As written, the Chancellor's Regulations with respect to SLT notice invite unilateral action as opposed to encouraging public discourse and disclosure on such important issues that will affect an entire school and community.

126. Upon information and belief, the DOE did not work collaboratively with the impacted SLTs on planning the joint public hearings or agreeing upon an agenda. Instead the DOE limited SLT involvement by only communicating with the school's principals, and not the SLT Chairperson, whose functions are detailed in A-655, as the party responsible for scheduling meetings and ensuring that voices of all team members are heard. A-655(III)(D)(2).

127. As a result of the DOE's failure to provide sufficient notice of the EIS, BUP andlor joint public hearing to certain of the school's SLTs, those SLTs were also denied their opportunity to present comments or concerns regarding the proposed co-location at the joint public hearing, in contravention of Education Law §§ 2590-h(2-a)(d) and 2853 (a-3) (5).

F. The PEP Failed to Comply with Notice Requirements

128. The Education Law, the Chancellor's Regulations, and the PEP By-Laws require PEP to issue a Notice at least forty-five days prior the meeting at which its members will vote on

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a proposed significant change of utilization of a public school building. Educ. L. § 2590-g [8](a);

Chancellor's Reg. A-190 § II.C.2; PEP By-Laws § 2.5.1(h) at pp.7-8.

129. Although the PEP Notice was issued timely, the PEP Notice itself was defective

in that it failed to provide all the information required by the Education Law, the Chancellor's

Regulations, and the PEP By-Laws.

130. Specifically, it omitted the date of the Joint Hearing. Compare Ex. 6 § V ("To be

30

determined") and Educ. L. § 2590-g [8](a)(iv)("Notice of the proposed item under [PEP]

consideration shall include: ... (iv) date, time and place of any hearing regarding the proposed

item, ifapplicable")(emphases added); Chancellor's Reg. A-190 § II.C.2.d (same).

131. Additionally, upon information and belief, the PEP Notice was published only in

the English language. See http://schools.nyc.gov/ AboutUs/leadership/PEP/publicnotice/20 1 0-

20111Feb12011Proposals. Upon further information and belief, the failure to publish the PEP

Notice also in the Spanish language violates Executive Order No. 120 § 2.d.i (issued by the

Mayor of the City of New York on July 22,2008),10 the DOE Language Access Plan, II and

Chancellor's Regulation A-663 §§ III.B, V.A.12

132. The PEP Amended Notice included the information missing from the PEP Notice.

Compare Ex. 6 § V ("To be determined") and Ex. 7 § V ("January 25,2011").

133. The PEP Amended Notice was published in both English and Spanish. A true and

correct copy of the Spanish-language version of the PEP Amended Notice, as acquired from the

DOE website, is Exhibit 12.

10 http://www.nyc.gov/htmllimmldownloads/pdf/exe_order_120.pdf II http://schools.nyc.gov/RulesPolicies/languagepolicy.htm

12 http://docs.nycenet.eduidocushare/dsweb/GetiDocument-1511 A -663%20Translation%203-27 -06%20.pdf

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134. The PEP Amended Notice, however, was not issued until December 22,2010- less than the required forty-five days prior to the February 1, 2011 PEP meeting at which the Brandeis co-location proposal was going to be considered. See Exs. 7, 12.

135. PEP, therefore, failed to provide effective timely notice prior to the meeting at which its members considered and, by the least possible number of votes, voted to approve the Brandeis co-location proposal.

G. The DOE Failed to Prepare an Environmental Impact Statement

136. Unlike their high school counterparts, elementary school students eligible for transportation usually do not use mass transit. Instead, they are provided with "yellow bus" transportation.

137. Upon information and belief, the SACS students eligible for transportation will be provided "yellow bus" transportation.

138. Upon information and belief, the introduction of meaningful numbers of yellow buses to the Brandeis Campus will result in significant traffic congestion, especially given the proximity ofP.S. 9 and its already extensive use of yellow buses (10 morning; 11 afternoon). 139. Upon information and belief, given the likelihood of greater geographic diversity among SACS students than PS 9 students, SACS students will require a greater number of buses than PS 9 relative to its enrollment.

140. Upon information and belief, every yellow bus utilized by SACS students represents an additional bus coming to the Brandeis Campus which would not be utilized if the Brandeis Campus were utilized solely for high school students.

141. Notwithstanding the foregoing, and the potential environmental impact resulting therefrom, in derogation of its duties as the lead agency for such matters, DOE failed to

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32

implement an environmental quality review, and failed to produce an environmental impact statement (including a traffic study) relating to the Brandeis co-location proposal.

142. DOE, therefore, violated the State and City Environmental Quality Review Acts.

FIRST CAUSE OF ACTION

143. Petitioners repeat and reallege the allegations set forth in paragraphs 1 through 142 as if set forth herein.

144. Pursuant to Education Law Articles 52-A and 56, Respondents have a duty, before significantly changing the utilization of any school, to conduct a public review and comment process; prepare an EIS and BUP including specific detailed information; "file" the EIS and BUP with impacted SLTs, and conduct ajoint public hearing including SLTs.

145. Respondents have failed to comply with the provisions of the Education Law §§ 2590-h, 2853 (a-3)(2), and Chancellor Regulation A-190, by preparing an EIS without the required information, preparing a BUP devoid of a justification how the shared usage would result in an equitable and comparable use of space, and failing to ensure certain SLTs were timely provided the EIS and BUP, which resulted in ajoint public hearing without the involvement of all interested parties.

146. Additionally, Respondents have violated the State and City Environmental Quality Review Acts by failing to implement an environmental quality review, and failing to produce an environmental impact statement (including a traffic study) relating to the Brandeis co-location proposal.

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147. Petitioners seek a judgment and/or order pursuant to CPLR §7806 directing Respondents to comply with their obligations under Education Law Articles 52-A and 56, the Chancellor's Regulation A-190 and the State and City Environmental Quality Review Acts.

SECOND CAUSE OF ACTION

148. Petitioners repeat and reallege the allegations set forth in Paragraphs 1 through 147 as if set forth herein.

149. Pursuant to Education Law Articles 52-A and 56, Respondents have voted to approve the co-location of SACS in the Brandeis Campus beginning in the 2011-2012 school year.

150. As described herein, Respondents have failed to comply with the substantive and procedural requirements necessary prior to voting to approve the co-location.

151. Respondents' failure to comply with their statutory obligations is, on its face, arbitrary and capricious pursuant to CPLR §7803(3), and any vote should be annulled.

THIRD CAUSE OF ACTION

152. Petitioners repeat and reallege the allegations set forth in paragraphs 1 through 151 as if set forth herein.

153. Pursuant to Education Law Articles 52-A and 56, Respondents have a duty, before significantly changing the utilization of any school, to conduct a public review and comment process; prepare an EIS and BUP including specific detailed information; "file" the EIS and BUP with impacted SLTs, and conduct ajoint public hearing including SLTs.

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154. Respondents have failed to comply with the provisions of the Education Law §§ 2590-h, 2853 (a-3)(2), and Chancellor Regulation A-190, by preparing an EIS without the required information, preparing a BUP devoid of a justification how the shared usage would result in an equitable and comparable use of space, and failing to ensure certain SLTs were timely provided with the EIS and BUP, which resulted in ajoint public hearing without the involvement of all interested parties.

155. Additionally, Respondents have violated the State and City Environmental Quality Review Acts by failing to implement an environmental quality review, and failing to produce an environmental impact statement (including a traffic study) relating to the Brandeis co-location proposal

156. Petitioners seek a declaration pursuant to CPLR § 3001 that Respondents have failed to comply with the statutory requirements contained in Education Law §§ 2590-h, 2853 (a- 3)(2), Chancellor Regulation A-190 and the State and City Environmental Quality Review Acts. 157. Petitioners further seek a declaration that the PEP vote approving the co-location of SACS in the Brandeis Campus is invalid.

34

FOURTH CAUSE OF ACTION

158. Petitioners repeat and reallege the allegations set forth in Paragraphs 1 through 157 as if set forth herein.

159. Pursuant to Education Law Articles 52-A and 56, Respondents have voted to approve the co-location of SACS in the Brandeis Campus beginning in the 2011-2012 school

year.

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160. As described herein, Respondents have failed to comply with the substantive and

procedural requirements necessary prior to voting to approve the co-location.

P~LWS~P !

BY:~~ ~ ~ ~_

161. Petitioners seek a judgment pursuant to CPLR § 7806 enjoining the co-location of

SACS in the Brandeis Campus.

WHEREFORE, Petitioners respectfully request that the Court grant judgment:

1. directing Respondents to comply with their obligations under Education Law Articles 52-A and 56, the Chancellor's Regulation A-190 and the State and City Environmental Quality Review Acts

2. annulling the votes of the Panel for Education Policy approving the colocation of SACS in the Brandeis Campus;

3. declaring the Panel For Education Policy approval to be invalid;

4. permanently enjoining the co-location of SACS in the Brandeis Campus; and

5. for such other and further relief in Petitioners' favor as may be just and proper.

Dated: New York, New York April 8, 2011

Marc Andrew Landis Jon Schuyler Brooks Meagan Zapotocky

Attorney for Petitioners 666 Fifth Avenue

New York, NY 10103 (212) 977-9700

35

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VERIFICATION

STATE OF NEW YORK )

: ss.

COUNTY OF NEW YORK )

LISA STEGLICH, being duly sworn, deposes and says: that she is a Petitioner in the above-entitled proceeding; that she has read the foregoing Verified Petition and knows the contents thereof; that the Verified Petition is true to her own knowledge, except as to matters therein stated to be alleged on information and belief, and that as to those matters she believes them to be true.

LISA STEGLICH

Sworn to before me this ~day of April 2011 in New York County

~c~ .

Meagan Zapotocky

Notary Public State of New York No. 02ZA6135583 Qualified in New York County Commission expires 10/24 / ~

2..013

1141222.1