SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LISA STEGLICH, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY Index No. 104300/11 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 IAS Part 29 (Torres, J.) 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 ALIYA 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. x PETITIONERS’ MEMORANDUM OF LAW. IN REPLY TO RESPONDENTS’ VERIFIED ANSWER PHILLIPS NIZER LLP 666 Fifth Avenue New York, NY 10103 (212) 977-9700 Attorney for Petitioners Of Counsel: Jon Schuyler Brooks Paul A. Victor Marc Andrew Landis Meagan Zapotocky 1143890.1TABLE OF CONTENTS Table of Authorities Preliminary Statement. ARGUMENT... 1. Petitioners May Challenge the PEP Vote in this Court... A. The 2010 Amendment Did Not Mandate Appeals to the Commissioner... all B. This Court Retains Jurisdiction over Challenges Questioning Violation of Statutes... vii C. The Commissioner Lacks Jurisdiction over Non-Education Law Questions vil D. The Commissioner Lacks Authority to Issue a Stay.. TL Respondents Failed to Comply with the Education Law, the Chancellor's Regulations, and the PEP By-Laws ix IML Respondents Failed to Issue an Environmental Impact Statement... xi CONCLUSION. 12 1143890.1Petitioners, all by their attorney Phillips Nizer LLP, submit this memorandum of law in reply to the Verified Answer filed in this Article 78 proceeding by 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”), the Chancellor of the City School District of the City of New York (the “Chancellor”), and the New York City Department of Education (“DOE”) (collectively, “Respondents”), and in further support of their Verified Petition. PRELIMINARY STATEMENT Desperate to avoid adjudication of the Verified Petition on the merits, Respondents attempt to wrest this matter from the jurisdiction of this Court. Apparently aware they cannot do so, they then attempt to convince this Court that they have complied with the rigorous requirements of the Education Law not by proving their strict compliance, but by lowering the required level of compliance to “substantial” (thus admitting sub silento their non-compliance). They argue that same lower standard governs, and absolves, their failure to comply strictly with the notice requirements of the Education Law. Finally, they ask the Court to ignore the now undisputed fact that they never even bothered to prepare an environmental impact statement. In sum and substance, the Verified Answer admits the essential allegations made by Petitioners, and asks this Court to employ legalistic trickery to get Respondents off the hook. ‘The potential harm to the infant Petitioners, and to students who in the future will attend one of the high schools housed in the Brandeis Educational Campus (the “Brandeis Campus”), is too great not to hear Petitioners on the merits, and not to hold Respondents to strict compliance. ‘The Verified Petition should be granted in all respects. 1143890.1ARGUMENT L PETITIONERS MAY CHALLENGE ‘THE PEP VOTE IN THIs COURT Respondents argue Petitioners’ “are required under the Education Law to bring their challenge to the State Commissioner of Education for a prompt administrative resolution.” Opp. Mem. at 1. As a matter of law, Respondents are wrong for multiple, independent reasons. A. The 2010 Amendment Did Not Mandate Appeals to the Commissioner Petitioners challenge the PEP vote approving the co-location because the Chancellor, DOE and/or PEP failed to comply with statutory requirements established by the Education Law. Historically, and without objection from the Chancellor, DOE or PEP, this Court has heard and decided such challenges to PEP votes. See Mulgrew v. Bd. of Educ., 28 Misc.3d 204 (Sup. Ct. New York Cnty), aff'd, 75 A.D.3d 412 (1" Dept 2010). Respondents argue an amendment to the Education Law enacted subsequent to Mulgrew (the “2010 Amendment”) stripped this Court of its jurisdiction over such challenges, vested exclusive original jurisdiction in the Commissioner, and required Petitioners to exhaust their administrative remedies prior to commencing this Article 78 proceeding. Opp. Mem. at 3-7. Respondents’ argument derives mot from a specific legislative mandate set forth in the 2010 ‘Amendment, but from a self-serving interpretation of its language that is wholly unsupported by the legislative history of the 2010 Amendment. The 2010 Amendment originated as Assembly Bill No. 11310 (“A.11310"). It was “{ntroduced, passed and signed in one day.” New York State Legislative Annual 2010, Governor’s Program Memorandum #269 n.1. It was driven primarily by New York State’s effort to “win” dollars from the federal “Race to the Top” program.” See generally, Assembly Debate 1143890.1,‘Transcripts, 2010 Chap. 101 (“Assembly Tr.”); Senate Debate Transcripts, 2010 Chap. 101 (“Senate Tr.”).! Admittedly, the 2010 Amendment includes the following language: Notwithstanding any provision to the contrary, in a city school district in a city having a population of one million or more inhabitants, the determination to locate or co-locate a charter school within a public schoo! building and the implementation of ‘and compliance with the building usage plan ... may be appealed to the commissioner pursuant to section three hundred ten of this chapter. A.11310 § 15 at p.9:33-43 (emphasis added). Respondents argue that “may” does not mean “may”; that “may” really means “must”; and that this Court, in effect, should rewrite the language of the statute so that it reads “may be appealed only to the commissioner.” Opp. Mem. at 3-7. No support exists in the legislative history for such a construction. To the contrary, the legislative history supports a construction that “may” is permissive, not mandatory. For example, the Assembly Memorandum in Support of Legislation for A.11310 (the “Assembly Memo”) includes the following statement: “An expedited appeal may be made regarding the determination to locate or co-locate a charter school in a public school building and the implementation of and compliance with a building utilization plan.” Assembly Memo at 2 (emphasis added); accord, Governor's Program Memorandum #269.7 In the legislative debate on the 2010 Amendment, neither a single Member of the Assembly nor a single State Senator suggested ~ let alone stated ~ that the language clarifying that a co-location determination by PEP may be appealed to the commissioner divested the ' For the convenience of the Court, a true and correct copy of each of the following documents is submitted herewith; A.11310; the Assembly Memorandum in Support of Legislation; the 2010 Legislative Annual relating to Chapter 101 of 2010; the Assembly Debate Transcripts; and the Senate Debate Transcript. "The exact same language appears also in the Senate Memo, 1143890.1courts of jurisdiction to hear challenges to such determinations through an Article 78 proceeding See generally, Assembly Transcripts and Senate Transcripts. Such silence is especially instructive given that the Le; ature was well aware of the Mulgrew decision, and recognized the critical role the courts play in ensuring that these Respondents comply with the letter and purpose of the Education Law. Past behavior is a pretty good indicator of future behavior(,] and the attempt, the very noble attempt, to put in place a process that would force a public process {with} more transparency in the co-location is reminiscent, to me, of the same type of process that ‘was put in place in our school governance around the issue of school closures. Communities indicated that there were 19 schools that were being closed without any real process. The Department of Education said, “Oh, no, no, no. We followed every step, we had these hearings.” [PEP, the DOE, and the Chancellor] were taken to court, and the [Mulgrew] court rejected as a sham — as an outright sham - the process that was engaged in by the Department of Education and voided those closures. believe we are likely to see the same [with] forced co- locations. Assembly Tr. at 106 (Remarks of Member of Assembly Glick). Apparently aware they lack any support in the 2010 Amendment's legislative history, Respondents ignore it completely and instead argue that principles of statutory construction allow this Court to re-interpret “may” to mean “must.” Opp. Mem. at 7 & n.3. Respondents conveniently ignore the cases more on point that hold “may” is permissive and means “may.” For example, exactly three months ago, the Fourth Department addressed whether the Supreme Court lacked jurisdiction over an Article 78 proceeding where, as here, the petitioner filed that proceeding without first pursuing an administrative appeal. As here, the municipal respondents in that case argued that the “may appeal administratively” language of the governing 1143890.1,