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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 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 ALIY A CLUNIE, infant,





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Index No. 104300/11

lAS Part 29 (Torres, J.)




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



Table of Authorities ii

1·· S .

Pre irmnary tatement. 1


I. Petitioners May Challenge the PEP Vote in this Court ii

A. The 2010 Amendment Did Not Mandate Appeals to the Commissioner ii

B. This Court Retains Jurisdiction over Challenges Questioning Violation of Statutes vii

C. The Commissioner Lacks Jurisdiction over Non-Education Law Questions vii

D. The Commissioner Lacks Authority to Issue a Stay viii

II. Respondents Failed to Comply with the Education Law, the Chancellor's Regulations, and the

PEP By-Laws ix

III. Respondents Failed to Issue an Environmental Impact Statement xi




Petitioners, all by their attorney Phillips Nizer LLP, submit this memorandum oflaw 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.


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.





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. ofEduc., 28 Misc.3d 204 (Sup. Ct.

New York Cnty), aff'd, 75 A.D.3d 412 (lst 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 not 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.1131 0"). It was

"introduced, 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



Transcripts, 2010 Chap. 101 ("Assembly Tr."); Senate Debate Transcripts, 2010 Chap. 101

("Senate Tr.,,).1

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 school 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.1131 0 (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 #269.2

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

1 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 of2010; the Assembly Debate Transcripts; and the Senate Debate Transcripts.

2 The exact same language appears also in the Senate Memo.



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 Legislature 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.

I believe we are likely to see the same [ with] forced colocations.

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



statute was mandatory, and that petitioner thus failed to exhaust its administrative remedies. See

Opp. Mem. at 3-7. The Fourth Department rejected both contentions.

Contrary to the further contention of respondent, the court properly denied its motion to dismiss the petition on the ground that petitioners failed to exhaust their administrative remedies. Buffalo City Code § 511-125(B), which pertain to the Zoning Board of Appeals, provides: "In case it is alleged by an appellant that there is error of misinterpretation in any order, requirement, decision, grant or refusal made by ... [an] administrative official having authority to issue licenses or permits in the carrying out of enforcement of the provisions of '" chapter [511], an appeal may be filed in the manner hereinbefore specified and a decision shall be made by the [Zoning] Board of Appeals" (emphasis added). Because the language of that provision is permissive rather than mandatory, petitioners were not required to file such an appeal [with the ZBA].

Custom Topsoil, Inc. v. City a/Buffalo, 81 A.D.3d 1363, 1365 (4th Dept 2011)(ellipses, brackets,

and standard italics in original; bold italics added).

The First Department rejected similar contentions, along with the "primary jurisdiction"

argument, almost two decades ago.

Even though administrative action is often desirable, resort to such action is not a prerequisite to litigation in court. The statute is clearly couched in permissive terms, providing in pertinent part that any person "may file" with the commission a complaint setting forth alleged violations of the Shipping Act (US Code, tit 46, § 821, subd [ aD. Exhaustion of administrative remedies is thus not a prerequisite to this action. This is especially true where, as here, the questions involved are generally legal ones .... Where the technical expertise and special discretion of the commission are not otherwise required, a court is competent to make a determination of a nontechnical nature based on an uncomplicated set of facts. This renders inapplicable the doctrine of primary administrative jurisdiction.

Triomphe Disc Corp. v. Chilean Line, 93 A.D.2d 228, 231 (1 st Dept 1983) (emphasis added).

In advancing their "may means must" construction, Respondents also ignore the first

clause of the "may appeal" language: "Notwithstanding any provision to the contrary .... "



A.11310 § 15 at p.9:33. In other words, prior to the 2010 Amendment, there apparently was

either a concern or belief that PEP determinations regarding co-locations could not be appealed

to the commissioner pursuant to Education Law § 310. The 2010 Amendment provided that


Rather than view an appeal to the commission as an alternative, however, Respondents

argue the 2010 Amendment made it the exclusive means to challenge a PEP determination

regarding co-locations of charter schools. Opp. Mem. at 3-7. Respondents are wrong.

The "co-location process" imposed upon the Respondents by the 2010 Amendment was

intended to enhance parental and community involvement in the co-location determination.

"This legislation creates, we think, enough of a plan, a building plan and a consultation process

with parents, that it will make this kind of transition smoother and easier and allow for true

parental involvement .... " Assembly Tr. at 73 (Remarks of Member of Assembly Nolan). That

process must include the ability to challenge its outcome, as demonstrated by Mulgrew. The

process, therefore, shows the remedial nature of the applicable portions of the 2010 Amendment.

[ A] remedial statute [] is to be liberally construed in favor of affording judicial review (see, Matter of Great E. Mall v. Condon, 36 N.Y.2d 544, 548; Matter of Lieberman v. Johnson, 60 A.D.2d 933,934). Therefore, we should not read into the Purcell Act by implication any legislative intent to remove the traditional jurisdiction of Supreme Court to review real property tax assessments under Real Property Tax Law article 7.

Delaware & Hudson Railway Co. v. McDonald, 126 A.D.2d 29,34 (3d Dept), appeal dismissed,

70 N.Y.2d 693 (1987)(emphases added)(reversing dismissal of petition for lack of subject matter

jurisdiction). As in Delaware & Hudson, this Court should not read into the 2010 Amendment

"by implication [a] legislative intent to remove the traditional jurisdiction of the Supreme Court."



Finally, the construction urged by Respondents implicates serious issues of due process

and equal protection. The "may appeal to the commissioner" language applies only to those co-

location determinations made by PEP and affecting the City School District. In other words, co-

location determinations made by any other school board in the State of New York may be

challenged in Supreme Court by an Article 78 proceeding. This Court cannot construe the 2010

Amendment as preserving judicial review for some New Yorkers, but denying it to those who

live with the City of New York.

B. This Court Retains Jurisdiction over Challenges Questioning Violation of Statutes

Furthermore, even assuming arguendo the 2010 Amendment vested exclusive original

jurisdiction of certain appeals in the Commissioner, Respondents concede such exclusivity does

not extend to challenges "involving only questions of law, where the issue is whether school

officials acted in violation of statute." Opp. Mem. at 6 (citing Lazette v. Bd. ofEduc., 35 N.Y.2d

272,278 (1974)). This Article 78 proceeding involves only such questions, and raises precisely

that issue.

C. The Commissioner Lacks Jurisdiction over Non-Education Law Questions

Moreover, one of the questions oflaw raised by the Verified Petition is whether

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

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

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

Are there some grievances the Commissioner will not decide?

Yes, the Commissioner will not decide certain disputes. For example, the Commissioner has no authority to decide alleged violations of the Open Meetings Law or Freedom ofInformation Law. Thus, the Commissioner will not decide claims that a school district failed to hold an open meeting or wrongfully refused a request for documents. Such claims must instead



be brought before a court. Moreover, the Commissioner has no authority to award money damages.

Frequently Asked Questions Concerning Appeals to the Commissioner of Education ("FAQ"),

Question No. 14 (emphasis added), available at

Respondents concede this Article 78 proceeding raises issues unrelated to the Education

Law. Opp. Mem. at 28-30. Those issues are beyond the purview of the Commissioner.

Accordingly, "such claims must instead be brought before a court."

D. The Commissioner Lacks Authority to Issue a Stay

The Commissioner admits he lacks authority to issue a stay in appeals involving PEP

determinations to co-locate a charter school in a public school building.

Can I request temporary relief while my appeal is pending?

Except for appeals involving New York City charter school location/co-location and building usage plans (see Question 3), a petitioner may request a stay order in the petition. Please refer to Part 276 of the Commissioner's regulations. The Commissioner, in his discretion, determines whether or not a stay order should be issued.

FAQ, Q. No. 17 (emphasis added), available at

As Respondents have known since before the commencement of this Article 78

proceeding, Petitioners have reserved their right to seek preliminary injunctive relief to prevent

Respondents from performing any construction at the Brandeis Campus to accommodate the co-

location of SACS. That construction now is scheduled to begin May 13, 2011, and Petitioners

intend to seek a stay to enjoin such work. Given that the Commissioner concedes he has no

authority to grant such a stay, Petitioners would be before this Court in any event.







Accordingly, for any or all of the foregoing reasons, Petitioners were not required to

challenge PEP's determination to co-locate SACS in the Brandeis Campus through an appeal to

the Commissioner; were not required to exhaust their administrative remedies prior to

commencing this Article 78 proceeding; and properly invoked the jurisdiction of this Court.



The Verified Petition explains at great length and in great detail the multiple failures by

Respondents to comply with the provisions of the Education Law, the Chancellor's Regulations,

and the PEP By-Laws. Respondents concede the instances of non-compliance, but argue they

nonetheless complied "enough."

The arrogance reflected in that argument ignores the "bargain" underlying the passage

and enactment of the 2010 Amendment: the "cap" on the number of charter schools in the State

(and City) will be raised significantly in exchange/or a more rigorous process of public notice

and public involvement surrounding any proposed co-location, especially in the City School

District. Assembly Tr. at 73. That is the reason the Mulgrew court determined correctly that

Respondents must satisfy the rigorous standard of "strict compliance." Respondents make no

attempt to demonstrate they satisfied that standard. See Opp. Mem. at 11-28.

It makes perfect sense to apply the strict compliance standard to co-locations of charter

schools, and not only for the reasons articulated clearly in Mulgrew. In essence, the co-location

of a charter school is akin to an eviction, in that it denies current students use of a portion of the

public school building. It cannot be questioned whether strict compliance is the standard utilized

in eviction proceedings. MSG Pomp Corp. v. Doe, 185 A.D.2d 798, 799-800 (l st Dept 1992).



Even assuming arguendo that "substantial" compliance is the appropriate standard, Respondents have failed to meet it. For example, Respondents substitute soliciting feedback from principals for involving and considering feedback from the School Leadership Teams, and substituted filing the EIS and BUP with principals for the statutorily required filing with SLTs. Opp. Mem. at 14, 24. Although principals are mandatory members of SLTs, they are not the totality of the SLTs. Indeed, they are employees and agents of the DOE.

The Chancellor and DOE now admit the enrollment figure in the EIS was understated by more than ten (10%) percent. Opp. Mem. at 15 & n.6. Furthermore, they admit also they knowingly omitted from enrollment figures those students deemed "long term absences." Id. at 15. Moreover, they never advised the public or PEP of their understatements or omissions. The PEP decision, therefore, was premised on incomplete and inaccurate information.

Respondents admit also that the Notice filed on December 17,2010 did not contain the statutorily-required minimum information. Opp. Mem. at 25. They claim a late-filed amendment cured the admitted defect. That is not compliance.

Perhaps most offensive, especially given the charter school obligation to educate Englishlanguage learners, is Respondents' argument that its admitted failure to publish the original Notice in Spanish is not "an issue" because "the PEP Notice does not fall clearly within the Language Access Goals of the DOE Language Access Plan." Opp. Mem. at 26-27. So much for robust outreach to the community.

These are but some examples of the effort by Respondents to change the facts after the final bell. Petitioners respectfully refer the Court to its Verified Reply and supporting affidavit.

Respondents have not complied, strictly or substantially, with their statutory obligations.





Respondents concede they did not issue an environmental impact statement. Opp. Mem.

at 28. They argue the co-location is a SEQRAlCEQR "Type II" project and, therefore, no

environmental impact statement was necessary. Ibid.

SEQRA, however, specifically excludes from Type II projects "changes in use related to

[school] closings. 6 NYCRR § 617 .5( c )(8) (emphasis added). The co-location of a charter

school is statutorily-defined as a "significant change in utilization" of a public school building.

Educ. L. § 2590-h [2-a](a). Consequently, the co-location is not and cannot be a Type II project.

Respondents, therefore, were required to prepare and issue and environmental impact

statement. They failed to do so, and admit it.




For the foregoing reasons, as well as on the Verified Petition and Verified Reply,

Petitioners respectfully request that the Court issue a judgment pursuant to CLPR Article 78

(1) annulling the vote of the PEP to co-locate SACS into the Brandeis Campus; (2) declaring the

PEP vote null and void; (3) directing or ordering Respondents to comply with their obligations

under Articles 52-A and 56 of the Education Law, the Chancellor's Regulation A-190 and the

State and City Environmental Quality Review Acts; (4) enjoining permanently the SACS co-

location in the Brandeis Campus; and (5) for such other and further relief in Petitioners' favor as

this Court may deem just and proper.

Dated: Garden City, New York May 10, 2011



Marc Andrew Landis

Meagan A. Zapotocky Attorneys for Petitioners

666 Fifth Avenue

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