SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY IAS PART Index no:

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In the Matter of the Application of ALEX COSS,
KAREN PLUMMER
Petitioners VERIFIED PETITION

For a Judgment Pursuant to Articles 78, 30 and 63 of the

Civil Practice Law and Rules

-against-

NEW YORK BOARD OF REGENTS,

THE UNIVERSITY OF THE STATE OF NEW YORK,
NEW YORK STATE EDUCATION DEPARTMENT,
DAVID M. STEINER, in his Capacity as
New York State Commissioner of Education,
MICHAEL BLOOMBERG, Mayor of the
City of New York, CITY OF NEW YORK

Respondents
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Petitioners ALEX COSS and KAREN PLUMMER, by their attorneys, Roger S.

Wareham, Ramon Jimenez and Kafahni Nkrumah, for their Verified Petition, allege the

following:

PRELIMINARY STATEMENT

1. This suit seeks a judgment: declaring that Respondent New York State Commissioner of

Education [hereinafter Commissioner] David M. Steiner’s grant of a waiver and a School

District Certificate [“Certificate”] to Cathleen Black which allowed her to be appointed

as Chancellor of the City School District of the City of New York [hereinafter

Chancellor] was arbitrary and capricious, and/or an abuse of discretion; compelling the

Commissioner to rescind his grant of a waiver and the issuance of the Certificate to

Cathleen Black; preliminarily and/or permanently enjoining Mayor Michael A.

Bloomberg [“Mayor”] from installing Cathleen Black as Chancellor on January 1, 2011;

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 and directing Mayor Bloomberg to conduct an open, national search for a properly

qualified candidate for Chancellor.

2. Respondent Bloomberg’s nomination of Cathleen Black for the post of Chancellor of the

New York City School District, Respondent Steiner’s granting of a waiver of

qualification for Ms. Black, were, individually and respectively, arbitrary and capricious

or, in the alternative, an abuse of discretion and will cause irreparable harm to the

students of the New York City Public School System.

PARTIES

3. Petitioner Alex Coss is a resident of Bronx County and a parent of two children in the

School System.

4. Petitioner Karen Plummer is a resident of Queens County and a parent of a child in the

School System.

5. Respondent New York State Education Department [NYSED] is part of the University of

the State of New York [USNY] and oversees pre-K through 12th grade programs in the

State of New York.

6. Respondent David M. Steiner is Commissioner of Education for the State of New York

with the legal authority to issue school district leader certificates.

7. Respondent New York Board of Regents sets education policy for the State of New York

and oversees both USNY and NYSED.

8. Respondent City of New York is a municipal entity created under the laws of the State of

New York and authorized to carry out certain functions by the State of New York

through its employees.

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 9. Respondent Michael A. Bloomberg is Mayor of the City of New York with the authority

to nominate candidates for the Chancellor of Education for the City of New York School

District.

FACTS

10. The New York City School district is the largest in the United States with 1.1 million

children, 135,000 employees and 1600 schools.

11. The overwhelming majority of that student population is Black and Latino.

12. On November 9, 2010, without any prior notice to the public and, on information and

belief, with notice only to a few of his closest associates, New York City Mayor Michael

Bloomberg announced the resignation of Joel Klein as Chancellor of the School System

and the nomination of Cathleen Black as his successor.

13. The powers and duties of Chancellor, which are many and varied, are set out in section

2590-h of the New York State Education Law [Exhibit 1]. They include:

a. control and operation of: academic and vocational senior high schools…; all
specialized high schools; all special education programs and services; [sub-
section 1]
b. establishment, control and operation of new schools or programs … or to
discontinue any such schools and programs as he or she may determine…
[subsection 2]
c. … Prepare an educational impact statement regarding any proposed school
closing or significant change in school utilization [subsection 3]
d. Develop and furnish pre-service and in-service training programs for principals
and other employees throughout the city district …. [subsection 14]
e. Promote the involvement and appropriate input of all members of the school
community…
f. Promulgate regulations establishing educational, managerial, and administrative
qualifications, performance record criteria, and performance standards for the
position of superintendent and principal [Subsection 29].

14. The qualifications of the Chancellor are set out in Section 3003 of the New York State

Education Law [Exhibit 2].

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 a. He shall be a graduate of a college or university approved by the commissioner
and in addition shall have completed sixty semester hours in graduate courses
approved by the commissioner; and
b. At the time of his appointment each shall have completed three years of teaching
experience satisfactory to the commissioner in public or non-public schools.

15. Neither Ms. Black’s educational (a B.A. in English) nor professional background

(entirely within the private business sector) qualifies her for eligibility for Chancellor.

16. Given these clearly insuperable obstacles, the Respondent Commissioner, at the written
behest of New York City Mayor Michael Bloomberg [Letter dated November 17, 2010,
Exhibit 3], resorted to subsection 3 of Education Law, section 3003, which states: The
commissioner, at the request of a board of education or board of cooperative educational
services, may provide for the issuance of a certificate as superintendent of schools to
exceptionally qualified persons who do not meet all of the graduate course or teaching
requirements of subdivision one of this section, but whose exceptional training and
experience are the substantial equivalent of such requirements and qualify such persons
for the duties of a superintendent of schools. [Exhibit 2]

17. The specifics of granting such a waiver are set out in section 80-3.10 of New York Code,

Rules and Regulations [hereinafter NYCRR, Exhibit 4]. Subsection (b) School district

leader [the equivalent of Chancellor] states that the candidate shall meet requirements in

two areas: (a) education and (b) experience.

18. The “education” requirement is : (3)(i)(a) a master’s or higher degree from a regionally
accredited higher education institution or an equivalently approved higher education
institution as determined by the department; and [Emphasis added]
(2)either:
(i) have successfully completed a New York State program leading to a professional
certificate as a school district leader in the educational leadership service registered
pursuant to section 52.21(c)(3) of this Title, or its equivalent as determined by the
department. As part of the program completion requirements, the candidate shall have
successfully completed at least sixty semester hours of graduate study, which may include
graduate study completed prior to admission to the program, and achieved a satisfactory
level of performance on the New York State assessment for school district leadership. The
requirement of achieving a satisfactory level of performance on the New York State
assessment for school district leadership shall be waived if the candidate completes the
registered program prior to the availability of such New York State assessment. The
department shall determine the date on which such assessment is available and required;
or
(ii) have successfully completed an educational leadership program outside of New York
State that is equivalent to a program leading to a professional certificate as a school

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 district leader in the educational leadership service registered pursuant to section
52.21(c)(3) of this Title, or an educational leadership program leading to a regular
certificate in an equivalent title to school district leader, accredited by an accrediting
body recognized by the United States Department of Education at a regionally accredited
institution outside of New York State, including a requirement to pass an assessment
equivalent to the New York State assessment for school district leadership, or
alternatively the candidate shall satisfy this component of the educational leadership
program by passing the New York State assessment for school district leadership. The
requirement of achieving a satisfactory level of performance on an assessment equivalent
to the New York State assessment for school district leadership or alternatively passing
such New York State assessment shall be waived if the candidate completes the program
prior to the availability of such New York State assessment. The department shall
determine the date on which such assessment is available. The candidate shall have
successfully completed at least 60 semester hours of graduate study, which may include
graduate study completed outside of the educational leadership program.

19. Cathleen Black fulfills neither of the above requirements.

20. The “experience” requirement: The candidate shall have successfully completed three
years of classroom teaching service and/or educational leadership service and/or pupil
personnel service experience in public or non-public schools N-12.

21. Cathleen Black does not fulfill the above requirement.

22. To overcome Ms. Black’s qualification deficiencies, Respondent Steiner arbitrarily

implemented the NYCRR’s escape hatch: (ii) alternative route two, the certification of
exceptionally qualified persons through screening panel review. The Commissioner of
Education, at the request of a board of education or board of cooperative educational
services, may provide for the issuance of a professional certificate as a school district
leader (superintendent of schools) to exceptionally qualified persons who do not meet all
of the graduate course or school teaching requirements in subparagraph (i) [Emphasis
added] of this paragraph, but whose exceptional training and experience are the
substantial equivalent of such requirements and qualify such persons for duties of a
superintendent of schools. Prior to the appointment of any such individual, the board
must obtain the approval of the commissioner. In its formal request to the department the
board must submit its resolution noting approval of the request, the job description, its
rationale for requesting such certification of the individual, a statement identifying the
exceptional qualifications of the candidate, the individual's completed application for
certification, vitae and official transcripts of collegiate study. The certificate, if issued,
will be valid only for service in the district making request. The commissioner will refer
the materials submitted by the board to a screening panel consisting of representatives of
the department and appropriate educational organizations for review and advice.

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 23. As per the statute, Respondent Steiner submitted the materials which had been sent him

by Respondent Bloomberg to an 8 member Advisory Panel [hereinafter Panel] which he

(i.e. Steiner) himself chose.

24. Prior to the Panel review of the submitted materials, there was public criticism that the

composition of the Panel was weighted too heavily in Mayor Bloomberg’s favor (New

York Times, “Education Panelist Did Not Disclose Possible Conflicts,” 22 Nov. 2010;

“Education Chief Raises Doubts on Pick by Bloomberg,” 23 November 2010) [Exhibits

5,6, respectively].

25. Three Panel members had worked for the current Chancellor, Joel Klein, who himself

needed a waiver of qualifications to become Chancellor.

26. One Panel member, a personal friend of Respondent Bloomberg, chaired an academy

which received millions of dollars in donations from the Mayor and worked for a

museum to which he (i.e. the Mayor) personally donated nearly half a million dollars

[Exhibit 5].

27. On information and belief, not content with the favorable composition of the Advisory

Panel, Respondent Bloomberg tried further to influence Respondent Steiner’s decision by

organizing a campaign of public figures to write Respondent Steiner in support of Ms.

Black.

28. On November 17, 2010, the Department of Education’s website under “News and

Speeches” trumpeted “Business Leaders Announce Support for Cathie Black as Schools

Chancellor;” those who wrote Respondent Steinberg included three former New York

City Mayors, 91 high-level business executives and several entertainment figures.

[Exhibit 7]

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 29. After reviewing the materials submitted by Respondent Bloomberg, four of the 8 Panel

members unequivocally opposed granting a waiver, two said they would deny it at the

time and only two were in favor.

30. Faced with this rejection by his own hand-picked Advisory Panel, Respondent Steiner, in

an attempt, on information and belief, to: i) placate Respondent Bloomberg, and ii)

salvage Ms. Black’s nomination, suggested an alternative plan, i.e. that he would

consider granting the waiver if Respondent Bloomberg were willing to appoint an

assistant, who actually had a legally and educationally acceptable background in

education, to Ms. Black.

31. This novel proposal by Respondent Steiner on its face would create a two-headed

Chancellor, one, whose only claim on the job was her friendship with the Mayor and her

expertise in the private corporate world, the other, someone with the credentials which a

qualified Chancellor should have.

32. On November 26, 2010, Respondent Bloomberg supplemented his November 17, 2010

letter to Respondent Steiner [Exhibit 3] with a letter indicating that Ms. Black would

appoint Shael Polakow-Suransky as Senior Deputy Chancellor and Chief Academic

Officer and attached a job description. [Exhibit 8].

33. The creation of this new post, Chief Academic Officer (to Oversee Curriculum and

Testing), and the responsibilities attendant on it, which include many that the Chancellor

would normally carry out [Exhibit 8], not only avoids the issue of Ms. Black’s lack of

qualifications, but is an inadvertent admission that she still did not merit a waiver.

34. The Chancellor's paramount responsibility is in educating the student body, and preparing

them to be successful, productive members of society in the 21st century.

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 35. Installing a Chancellor whose entire professional experience is in the private business

arena has the effect of reducing the student body to articles of merchandise and indicates

that Respondent Bloomberg’s paramount concern is more in making the $23 billion

school budget accessible to the private corporate sector than in providing the highest

quality of education to the students.

36. The billionaire media mogul Rupert Murdoch, the former employer of Ms. Black and

future employer of Chancellor Joel Klein is quoted thusly, “education in the U.S. is a

$500 billion sector ‘waiting desperately to be transformed by big breakthroughs that

extend the reach of great teaching.’” He has just purchased 90% of Wireless Generation,

one of whose clients is the New York City School system. (Staci D. Kramer, “News Corp

Shells Out $360 Million for Ed Tech Company Wireless Generation,” paidContent.org,

22 November 2010.) [Exhibit 9]

37. Respondent Bloomberg's nomination of a candidate with absolutely no background or

experience in education has a chilling effect upon the predominantly African-American

and Latino student body and their families.

38. On November 29, 2010, Respondent Steiner, apparently agreeing with his own to

Respondent Bloomberg, vis a vis appointment of an Assistant to Ms. Black, issued a

determination [“Determination”] granting the waiver and issuing a School District

Certificate of Leadership to Cathleen Black. [Exhibit 10].

39. On that same day, Mayor Bloomberg, in response to a question about the authority of the

newly created position of Chief Academic Officer, told reporters “There will be one

person in charge. Make no mistake about that.” (“With Deal on Deputy, Black Wins

Helm of City Schools,” NYT 30 Nov. 2010, p A24) [Exhibit 11]

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 40. Students, their families and citizens of New York State will suffer irreparable harm

should Ms. Black assume the post of Chancellor.

41. Cathleen Black’s assumption of the post of Chancellor will shatter the belief in the lesson

repeatedly taught to all our children that the bases of success in a democratic society are

hard work and proper qualifications. [Boubacar Bah Affidavit, Exhibit 12]

42. It will reinforce the growing cynical belief that if you are rich enough, sufficiently

connected to those in power, and white, that you are not subject to the same rules as “the

little people” and can therefore do whatever you choose to.

43. The New York City Public educational system is in a tremendous educational and

financial crisis. Respondent Bloomberg has ordained mandatory budget cuts and

decisions have to be made in which areas they will be implemented. Those decisions

have to be made, not from a purely business viewpoint but from an experiential one,

taking into account the effects on education and where cutbacks will cause the least harm

to the school population. [Affidavit of Petitioner Coss]

44. A clear example of the deleterious effect of inexperienced leadership in the Chancellor’s

Office can be found in the school testing controversy. Just a year ago, the City and

Department of Education [DOE] trumpeted the progress made in education due to higher

pass rates in reading and math, only to find that they had utilized artificially low

standards. The demoralizing effect on a child to be told one day that she had passed and

months later that, “Sorry,” she had indeed failed, is incalculable and with the properly

qualified leadership was avoidable.

45. Financial cutbacks will also involve delicate negotiations with the union sector, a

mishandling of which can have severe negative repercussions on the education of the

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 city’s children. Yet even in this field, Ms. Black has admitted that her extensive private

business experience does not include dealing with unions.

46. Corporate skills are not automatically and seamlessly transferable to public sector, non-

profit areas like education. Business executives changing careers need additional

schooling not on the job training. (“Why Cathie Black Should Go Back to School,”

Rosabeth Moss Kanter, Professor Harvard Business School) [ Exhibit 13]

CLAIMS

Respondent Bloomberg’s nomination of Cathleen Black for the post of Chancellor of the

New York City School District, Respondent Steiner’s granting of a waiver of qualification

for Ms. Black, were, individually and respectively, arbitrary and capricious or, in the

alternative, an abuse of discretion and will cause irreparable harm to the children of the New

York City Public School System.

WHEREFORE, Petitioners request that this Court issue a Judgment:

(a) Declaring that Respondent Steiner improperly granted a waiver and awarded a

school district leader certificate to Cathleen Black, and

(b) Directing Respondent Steiner to rescind the school district leader certificate he

granted Cathleen Black based upon the improper waiver given to her;

(c) Preliminarily and/or Permanently Enjoining Respondent Bloomberg from

installing Cathleen Black as Chancellor;

(d) Directing Respondent Bloomberg to conduct an open, public, nationwide

search for a properly qualified candidate for Chancellor.

DATED: Brooklyn, New York

December 6, 2010
________________________
ROGER S. WAREHAM

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 Attorney for Petitioners
394 Putnam Avenue
Brooklyn, NY 11216
(718) 230-5270

________________________
RAMON J. JIMENEZ
Attorney for Petitioners
145 E. 149th Street
Bronx, NY 10451
(718) 993-3002
 

              ________________________
KAFAHNI NKRUMAH
Attorney for Petitioners
116 W. 111th Street
New York, NY 10026
(212) 971-8771 

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