FILED: NEW YORK COUNTY CLERK 08/03/2011

NYSCEF DOC. NO. 123

INDEX NO. 107173/2011 RECEIVED NYSCEF: 08/03/2011

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 : Index No. 107173/11 guardian of MARLEY CHERWIN, infant, et al., : Plaintiffs, : IAS Part 12 (Feinman, J.) 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 of the City School District of the City of New York, : Defendants, : - and -againstUPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of infants THOMAS MOREY and CLAIRE MOREY, et al., Intervenor-Defendants. : : :

-------------------------------------------------------------------- x MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT PHILLIPS NIZER LLP 666 Fifth Avenue New York, NY 10103 (212) 977-9700 Attorney for Plaintiffs Of Counsel: Jon Schuyler Brooks Marc Andrew Landis Elizabeth A. Adinolfi
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Table of Contents Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF UNCONTROVERTED FACTS .......................................................................2 ARGUMENT...................................................................................................................................9 I. II. THE PEP VOTE MUST BE ANNULLED BECAUSE THE DEFENDANTS FAILED TO COMPLY WITH SEQRA AND/OR CEQR.......................9 THE PEP VOTE MUST BE ANNULLED BECAUSE THE REVISED EIS AND BUP ARE INACCURATE, INCOMPLETE AND INSUFFICIENT ................9 A. B. THE REVISED EIS MISSTATES STUDENT ENROLLMENT AND IGNORES THE NEEDS OF STUDENTS WHO REQUIRE SERVICES..............10 THE REVISED BUPS SPACE ALLOCATION IS NEITHER EQUITABLE NOR COMPARABLE......................................................................14 1. 2. 3. C. The Education Law Does Not Permit The Creation Of Facilities For A Charter Schools Exclusive Use .............................................................14 The Revised BUP Fails To Allocate Adequate Space For The High Schools To Meet Their Students Needs............................................16 The Revised BUP Improperly Categorizes Shared Space As Regular Classroom Space ...............................................................................................19

THE REVISED EIS AND BUP FAIL TO OFFER THE NECESSARY ANALYSIS OF THE IMPACT OF THE SACS CO-LOCATION.........................20 1. 2. Safety and Impact on Students and The Community........................................20 Effect on Personnel Needs ................................................................................26

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

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TABLE OF AUTHORITIES CASES Campaign for Fiscal Equity v. State, 187 Misc. 1, 719 N.Y.S.2d 475 (Sup. Ct. N.Y. Co. 2001) ...............................................................................................................18 Campaign for Fiscal Equity v. State, 100 N.Y.2d 893 (2003) ......................................................18 Chinese Staff and Workers Ass'n v. City of New York, 68 N.Y.2d 359 (1986)................................9 Matter of New York Pub. Interest Research Group Straphangers Campaign v. Metropolitan Transp. Auth., 196 Misc.2d 502 (Sup. Ct. N.Y. Co. 2003) ....................................10 Matter of New York Pub. Interest Research Group Straphangers Campaign v. Metropolitan Transp. Auth., 309 A.D.2d 127 (1st Dep'2003) ....................................................10 t Matter of Schwartz v. Dennison, 14 Misc. 3d 1220, 836 N.Y.S.2d 489, 2006 WL 3932753 (Sup. Ct. N.Y. Co. 2006) ................................................................................................10 Matter of Tri-County Taxpayers Assn. v Town Bd., 55 N.Y.2d 41 (1982) ......................................9 Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 414 (1st Dep' 2010).............................................21, 22 t STATUTES Educ. Law 2853 [3][a-3][2][B]...................................................................................................15 Educ. Law 2853 [3][a-3][2][C]...................................................................................................14 Educ. Law 2853 [3][a-3][2][D]...................................................................................................21 Educ. Law 2590-g [2-a](b)(i)......................................................................................................21 Educ. Law 2590-g [2-a](b)(ii).....................................................................................................21 Educ. Law 2590-g [2-a](b)(iv)....................................................................................................26 Educ. Law 2590-h [2-a](a)............................................................................................................9 REGULATIONS ii
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Commissioner' Regulation A-190 II.A.1.c ...............................................................................21 s Commissioner' Regulation A-190 II.A.1.f ................................................................................21 s Commissioner' Regulation A-190 II.A.1.h s ...........................................................................26

Commissioner' Regulation A-190 II.A.2.a.ii.d..........................................................................21 s Commissioner' Regulation A-190 II.A.2.b s Commissioner' Regulation A-190 II.A.2.c s 6 NYCRR 617.5(C)(8) ...........................................................................15 ...........................................................................14

.............................................................................................................9

iii
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Plaintiffs, by their attorney Phillips Nizer LLP, submit this memorandum of law in support of their motion for partial summary judgment as to the Third, Fourth, Fifth and Sixth Causes of Action set forth in the Amended Complaint (the Motion). PRELIMINARY STATEMENT On June 27, 2011, the Board of Education of the City School District of the City of New York (now referred to as the Panel for Educational Policy (PEP)) voted for the second time to approve the proposal by the Chancellor of the City School District of the City of New York (the Chancellor) and the New York City Department of Education (DOE) to co-locate the Success Academy Charter School (SACS) into the so-called Brandeis Educational Campus (Brandeis Campus), a building which currently houses five separate public high schools, Louis D. Brandeis High School, The Urban Assembly School for Green Careers, The Global Leaning Collaborative, Innovation Diploma Plus, and Frank McCourt High School. The vote was predicated on a process that was not only procedurally flawed, but also tainted by misinformation and meaningless, boilerplate analysis of the impact of this co-location on the Brandeis Campus students, staff and community. PEPs vote was the product of this misleading and inaccurate information and analysis, rendering its determination arbitrary and capricious. Plaintiffs parents and children who will be the most negatively impacted should the co-location proceed ask that this Court annul the PEP vote and halt this co-location by granting partial summary judgment as to the Third, Fourth, Fifth, and Sixth Causes of Action set forth in the Amended Complaint.1

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

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STATEMENT OF UNCONTROVERTED FACTS 1. On December 17, 2010, PEP published a document in English titled Public

Notice (the Notice) concerning The Proposed Co-location of a New Public Charter School, Success Academy Charter School [(SACS)], with Existing Schools in the Brandeis Educational Campus [(Brandeis Campus)]. Among other things, the Notice specified that PEP would consider the proposal to co-locate SACS into the Brandeis Campus (the Co-Location Proposal) at a public meeting to be held on February 1, 2011. 2. On December 17, 2010, the Chancellor and DOE published documents titled

Educational Impact Statement: The Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools in the Brandeis Educational Campus (EIS), See August 3, 2011, Affirmation of Jon Schuyler Brooks (Brooks Aff.), Exhibit 1, and Building Utilization Plan (BUP), Brooks Aff., Exhibit 2, relating to the Co-Location Proposal. 3. The EIS states, inter alia, The DOE would renovate four rooms adjacent to the

current cafeteria to create a separate cafeteria for SACS students, who would be of elementaryschool age. Brooks Aff., Exhibit 1 at p. 3. 4. The EIS states, inter alia, that, The high schools serve general education students

and students requiring special education services, including students currently enrolled in Collaborative Team Teaching (CTT) classes and students enrolled in Self-Contained (SC) classes. Upon admission, the schools work with parents to develop an individualized program that reflects the resources that the schools can offer as appropriate for the student. Thus, services are tailored to meet the indivual (sic) needs of the students with disabilities currently enrolled and, as such, may vary from year to year. Brooks Aff., Exhibit 1 at p. 3.

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5.

The EIS states students classified as English Language Learners (ELL) are

enrolled and receive English as a Second Language (ESL) or transitional bilingual services. All students enrolled in one of the schools in the Brandeis Campus will continue to receive their mandated special education and/or ESL services if this proposal is approved. Brooks Aff., Exhibit 1 at pp. 3-4. 6. On December 22, 2010, PEP published a document in English and Spanish titled

Amended Public Notice concerning The Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools in the Brandeis Educational Campus. 7. On January 25, 2011, Defendants Chancellor and DOE held what they

characterized as being the joint public hearing required by Education Law 2590-h[2-a](d) (the Joint Hearing) relating to the Co-Location Proposal. 8. At the Joint Hearing, the Chancellor and/or DOE received public input regarding

the Co-Location Proposal, including comments addressing purported defects and deficiencies in the Notice, the EIS, and the BUP. 9. On January 31, 2011, PEP published the public comment analysis (Public

Comment Analysis) relating to the Co-Location Proposal. 10. As reflected in the Public Comment Analysis, the Chancellor and/or DOE

received public input relating to the Co-Location Proposal prior to the February 1, 2011 PEP meeting, including comments addressing purported defects and deficiencies in the Notice, the EIS, and the BUP. 11. Notwithstanding the public input received by the Chancellor and/or DOE during

either the Joint Hearing or otherwise (as reflected in the Public Comment Analysis), neither the

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Chancellor nor DOE attempted to revise the EIS or BUP prior to the February 1, 2011 PEP meeting. 12. On February 1, 2011, PEP commenced a meeting at which, among other things, it

considered the Co-Location Proposal, including the EIS and BUP. 13. On February 2, 2011, PEP voted to approve the Co-Location Proposal (the

February PEP Vote). 14. On April 8, 2011, Plaintiffs herein commenced an Article 78 proceeding against

Defendants herein (Steglich I) by filing a Verified Petition challenging the February PEP Vote. 15. On April 25, 2011, Defendants herein filed their Verified Answer in Steglich I

opposing the Verified Petition. 16. 17. On May 10, 2011, Plaintiffs herein filed their Verified Reply in Steglich I. On June 1, 2011, in a letter to counsel for Plaintiffs herein, Defendants herein (a)

effectively declared unilaterally they were abandoning the EIS and BUP by stating that Defendants had decided to revise the EIS and BUP (although they believed the notice, hearing, and disclosure process that culminated in the February PEP vote satisfied the requirements of the Education Law), and (b) represented they no longer would rely upon the February PEP Vote to implement the co-location of SACS into the Brandeis Campus. 18. On June 2, 2011, during a conference in Steglich I, counsel for Defendants herein

reiterated in open court the declaration and representation made in their June 1, 2011 letter. 19. On June 6, 2011, Defendant PEP published a document in English titled Revised

Notice concerning The Revised Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning

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Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417) in the Brandeis Educational Campus (the Revised Notice). 20. On June 6, 2011, Defendants Chancellor and/or DOE published documents titled

Revised Educational Impact Statement: The Revised Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417) in the Brandeis Educational Campus (Revised EIS), Brooks Aff., Exhibit 3, and Revised Building Utilization Plan (Revised BUP), Brooks Aff., Exhibit 4. 21. The Revised BUP states that the Brandeis Campus currently has 67 full-size

classrooms and 14 half-size classrooms (exclusive of science labs and science demo classrooms). See Brooks Aff., Exhibit 4 at p. 3. 22. The Revised EIS and BUP propose to renovate four rooms adjacent to the

current cafeteria to build a separate multi-purpose space to be used as an additional cafeteria and gymnasium in the Brandeis Campus for the exclusive use of the SACS students. Brooks Aff., Exhibit 3 at p. 11; Brooks Aff., Exhibit 4 at pp. 4, 19. 23. The Revised EIS states, inter alia, Brandeis High School currently offers Self

Contained (SC) classes. Green Careers, Global Learning, Diploma Plus and Frank McCourt all offer Collaborative Team Teaching (CTT). All five high schools offer Special Education Teacher Support Services (SETSS). The existing classes and services would continue to be provided, and students with disabilities will continue to receive mandated services in accordance with their IEPs. Similarly, current and future students with IEPs will continue to receive mandated services at all of the high schools in the Brandeis Campus and at SACS. Brooks Aff., Exhibit 3 at p. 8.

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24.

The Revised EIS states, inter alia, In accordance with DOE policy, English

Language Learner (ELL) students are admitted to high schools in the same manner as their peers who are not ELLs. Current and future ELL students at the high schools in the Brandeis Campus and at SACS would continue to receive mandated services. Brooks Aff., Exhibit 3 at p. 8. 25. The Revised EIS states that Global Learning has 2092 returning students for the

2011-2012 school year, and that Global Learning will have a total enrollment of up to 330 students for 2011-2012. Brooks Aff., Exhibit 3 at p. 4. The EIS states that in the 2012-2013 school year Global Learning will achieve its maximum enrollment of 450 students, allowing for a maximum incoming 9th grade class of 120 students. 26. The Revised BUP states that Global Learning is currently using 11 full size

classrooms, 1 half size classroom, 1.5 full size administrative spaces and 1 half size administrative space, and that Global Learning is above its baseline allocation by 3 full-size rooms. Brooks Aff., Exhibit 4 at p. 6. According to the Revised BUP, Global Learnings baseline allocation for the 2011-2012 school year will be 12 full size classrooms, one half size classroom and 2.5 administrative spaces, an actual increase of only 1 full size classroom, a loss of one half classroom and an increase of 1 administrative space. Brooks Aff., Exhibit 4 at p. 11. 27. The Revised EIS states that, The DOE, in consultation with the Building

Council, will, where possible allocate contiguous and dedicated space to SACS to ensure the safety of all students. Brooks Aff., Exhibit 3 at p. 8. However, the EIS does recognize that the SACS students and the high school students on the Brandeis Campus will share space. Id. at p. 11 (SACS will share space in the dance studio, auditorium, and playground/yard/garden).
2

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

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28.

While the Revised EIS acknowledges that students and visitors at the Brandeis

Campus must pass through metal detectors as part of security screening, due to NYPD and DOE policy, students at SACS would not be subject to scanning to gain entry to the building[.] Brooks Aff., Exhibit 3 at p. 8. 29. The Revised EIS gives three examples where high schools are purportedly co-

located with elementary schools, the Julia Richman Campus, Building M013, and the Adlai Stevenson Campus, and states that none of these co-locations have presented any unusual problems. Brooks Aff., Exhibit 4 at p. 11. 30. and security: Pursuant to Chancellors Regulation A-414 every school/campus must have a School Safety Committee. The committee plays an essential role in the establishment of safety procedures, the communication of expectations and responsibilities of students and staff, and the design of prevention and intervention strategies and programs specific to the needs of the school. The committee is comprised of various members of the school community, including Principal(s); designee of all other programs operating within the building; U.F.T. Chapter Leader; Custodial Engineer/designee; and In-house School Safety Agent Level III. The committee is responsible for addressing safety matters on an ongoing basis and making appropriate recommendations to the Principal(s) when it identifies the need for additional security measures, intervention, training, etc. The committee is also responsible for developing a comprehensive School Safety Plan which defines the normal operations of the site and what procedures are in place in the event of an emergency. The plan must be consistent with the citywide prescribed safety plan shell. Each program operating within a school must enter program specific information in the School Safety Plan. Safety plans are updated annually by the School Safety Committee in order to meet changing security needs, changes in organization and building conditions and other factors. In addition, the committee recommends changes in the safety plan at any other time when it is necessary to address security concerns. Consistent with the process described above, the leader/designee of SACS will be part of the Brandeis Campus Safety Committee. As a member of the School Safety Committee, the leader/designee of SACS will participate in the development of the buildings Safety Plan and ensure that any security related issues or needs which may arise with respect to the co-location of SACS will be
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The Revised BUP provides the following boilerplate provision regarding safety

addressed on an ongoing basis. Moreover, the Safety Plan for the M470 school building will be modified as appropriate to meet any changing security needs associated with the co-location. SACS will enter information in the schools overall Safety Plan to ensure the safe operation of the school building. Each school building must also establish a Building Response Team (BRT) that will consist of trained staff members from each of the campus schools, and which is activated when emergencies or large building-wide events occur. The members of this team must be identified and listed in the School Safety Plan. The completed Safety Plan for the M470 school building will be submitted to the Borough Safety Directors of the Office of School and Youth Development for approval. If changes or modifications are necessary, the School Safety Committee will be advised. Once the Schools Safety Plan is approved, it will be submitted to the NYPD for final approval and certification by the NYPD. Brooks Aff., Exhibit 4 at p. 26. 31. On June 13, 2011, Defendant PEP published a document in English titled

Amended Notice concerning The Revised Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417) in the Brandeis Educational Campus (the Amended Revised Notice). 32. On June 16, 2011, Defendant PEP completed the translation of the Amended

Revised Notice into Spanish, and thereafter published the same. 33. On June 20, 2011, the Plaintiffs filed their Complaint seeking a Declaratory

Judgment that, inter alia, the Revised EIS and Revised BUP were nullities. 34. On June 27, 2011, PEP relied upon the Revised EIS and Revised BUP to approve

for the second time the Co-Location Proposal. 35. On June 30, 2011, Plaintiffs filed their Amended Complaint seeking, inter alia, to

have the June 27, 2011 PEP vote declared a nullity.

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ARGUMENT I. THE PEP VOTE MUST BE ANNULLED BECAUSE THE DEFENDANTS FAILED TO COMPLY WITH SEQRA AND/OR CEQR Defendants concede they failed to perform any review of the Co-Location Proposal under the State Environmental Quality Review Act (SEQRA) or its New York City counterpart (CEQR). Instead, they claim the co-location is a SEQRA/CEQR Type II project and, therefore, no environmental impact statement was necessary. SEQRA, however, specifically excludes from Type II projects changes in use related to [school] closings. 6 NYCRR 617.5(c)(8) (emphasis added). The co-location of a charter school is statutorily-defined as a significant change in utilization of a public school building. Educ. L. 2590-h [2-a](a). Consequently, the co-location is not and cannot be a Type II project. Defendants, therefore, were required to prepare and issue an environmental impact statement. They failed to do so, and admit it. Consequently, the June PEP Vote was invalid, and must be declared null and void. Chinese Staff and Workers Assn v. City of New York, 68 N.Y.2d 359, 369 (1986); Matter of Tri-County Taxpayers Assn. v Town Bd., 55 N.Y.2d 41, 45-47 (1982). II. THE PEP VOTE MUST BE ANNULLED BECAUSE THE REVISED EIS AND BUP ARE INACCURATE,3 INCOMPLETE AND INSUFFICIENT As set forth below, the Revised EIS and the Revised BUP, and the Space Utilization Survey on which they are based, fail to reflect the reality of need for and the use of space within the Brandeis Campus. Furthermore, the Revised EIS and the Revised BUP fail to provide an accurate and meaningful analysis of the security issues presented by the co-location of

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

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elementary school students with high school students for this particular Campus, with its heightened security requirements. As a result, both the community and PEP were badly misinformed as to the impact of this co-location on the existing students, staff and schools within the Brandeis Campus. A vote based on such misinformation is arbitrary and capricious and should be annulled. See Matter of Schwartz v. Dennison, 14 Misc. 3d 1220 (A), 836 N.Y.S.2d 489 (Table), 2006 WL 3932753 (Sup. Ct. N.Y. Co. 2006) (Since the record confirms the Boards misunderstanding of the facts, and since the Board relied on that misinformation at least in part, the decision-making process is fatally flawed and the determination is arbitrary and capricious and must be annulled.); Matter of New York Pub. Interest Research Group Straphangers Campaign v. Metropolitan Transp. Auth., 196 Misc.2d 502, 515 (Sup. Ct. N.Y. Co. 2003) (vacating administrative determination as arbitrary and capricious where hearing notice presented the public and Board with misleading financial information) revd on other grounds, 309 A.D.2d 127 (1st Dept 2003) (We agree that a notice of hearing - - even one that meets statutory requirements - - that provides the public with false and misleading information may so taint the hearing process as to require invalidation not only of the notice, but also of the hearing and subsequent agency action). A. THE REVISED EIS MISSTATES STUDENT ENROLLMENT AND IGNORES THE NEEDS OF STUDENTS WHO REQUIRE SERVICES

The Revised EIS and Revised BUP do not address the reality of the need for space among the existing high schools. For example, Global Learning4 currently has a roster of 211 returning students for the 2011-2012 school year, and a roster of 171 incoming students. See July 29, 2011, Affidavit of Rachel Dahill-Fuchel (Dahill-Fuchel Aff.) 2. While the Revised EIS says

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

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Global Learning will have a total enrollment of up to 330 students for 2011-2012, Brooks Aff. 26, in reality they will have 382 a population in this one school more than 15% greater than stated in the Revised EIS. Furthermore, no additional space has been allocated to Global Learning to accommodate these 52 additional students, meaning Global Learning will an average class size of 32 students. However, for the incoming class, the class size is actually 43 students in each of the four new sections. As of July 29, 2011 Global Learning still has 171 incoming students on its 2011-2012 roster, all of whom have been notified by the DOE they have a guaranteed seat in the school. Dahill-Fuchel Aff. 2. Even if, over the next month, 20% of the incoming students decide to enroll elsewhere, Global Learning still will have an incoming ninth grade class of 137 students, placing the enrollment for 2011-2012 at 348 students. DOE has capped Global Learnings total capacity at 450 students, meaning the incoming ninth grade class in the 2012-2013 school year will be restricted to no more than 102 seats (and significantly less than that if this coming years enrollment is not discounted by 20%). Even the Revised EIS, however, concedes Global Learning will grow by 110-120 students each year, including the 2012-2013 school year. Brooks Aff., Exhibit 3 at p. 4. (And there has been tremendous demand within the community for seats at Global Learning; over 850 students applied for the 2011-2012 school year.) The SACS colocation will make it logistically impossible to expand Global Learning to accommodate the incoming ninth grade class in 2012-2013. In addition to the fact that Global Learning is slated to have 52 students for whom the Revised BUP allocates no space, Global Learning has a very high percentage of high-need students, English Language Learners (ELLs) and Special Education students. According to the

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2009-2010 School Progress Report,5 of the 104 students then enrolled in Global Learning, 24.5% required Special Education services (and almost 15% of them required Special Education services in a self-contained classroom).6 As a basis for comparison, the average percentage of students requiring Special Education services in New York City high schools for the 2009-2010 school year was 14.4%.7 Nor are the numbers better for the subsequent classes. Currently, out of 211 Global Learning students, over 67 are ELL students, or 31.7%. See Dahill-Fuchel Aff. 5. Some of these students are categorized as SIFE, Students with Incomplete Formal Education. Id. These children are functionally, and sometimes socially/emotionally, illiterate in their own language as well as in English. Id. The DOE established Global Learning as having a Bilingual program into which they could pour ELL students. Id.; see also Brooks Aff., Exhibit 3 at p. 8. Accordingly, the number of ELL students who will be enrolled in Global Learning will only increase. These students, whether they are SIFE or have intermediate English proficiency, require significant support services which in turn requires additional space. Id. At present, Global Learning has more than 60 Special Education students, including 18 who came to Global Learning designated for instruction in a Self-Contained Classroom due to the nature of their disabilities. Id. at 6. This fact increases the Special Education population from 24.5% to 28.4%, double the average population of Special Education students in New York

Available at http://schools.nyc.gov/NR/rdonlyres/989153AA-EB45-4FA7-834AC2394279CE7A/0/2009_2010_HS_PR_Results_2010_12_21.xls, lines 64 and 65. Plaintiffs were unable to locate data on the percentages of Special Education and ELL students at these schools for the 2010-2011 or 2011-2012 school years. Both Green Careers and Global Learning have a significant population of students who are English Language Learners and who qualify for Special Education services. According to the 2009-2010 School Progress Report, of the 95 students then enrolled in Green Careers, 27.4% required Special Education services.
7 6

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

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City public high schools. In September, 2009, the DOE urged Global Learning to change the Self Contained Classroom students designation to that of Cooperative Team-Teaching, id., arguably to reduce the need for the additional space these students would require. Since then, due to the urging of the Special Education teachers who have worked with some of these students for two full years, the DOE supported re-designating some as in need of more intensive District 75 settings. Id. District 75 provides citywide educational, vocational, and behavior support programs for students who are on the autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disabled.8 However, to date, these students are still on the roster at Global Learning, and Global Learning must still endeavor to meet their needs. However, the Revised EIS and BUP ignore the needs of Special Education students with a Self-Contained Classroom designation. The Revised EIS states: Brandeis High School currently offers Self Contained (SC) classes. Green Careers, Global Learning, Diploma Plus and Frank McCourt all offer Collaborative Team Teaching (CTT). All five high schools offer Special Education Teacher Support Services (SETSS). The existing classes and services would continue to be provided, and students with disabilities will continue to receive mandated services in accordance with their IEPs [Individualized Education Plan]. Similarly, current and future students with IEPs will continue to receive mandated services at all of the high schools in the Brandeis Campus and at SACS. Brooks. Aff., Exhibit 3 at p. 8. The Revised EIS conceals that there are Global Learning students who require Self Contained classes and who are not receiving these mandated services in accordance with their IEPs. According to the DOE publication, The Five Ws of the NYC DOE Footprint, A schools allocation should be increased by one full or half size classroom for each self-contained special education class. Brooks Aff, Exhibit 12 at p. 18. Yet the Revised BUP

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

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fails to make any allocation for the Global Learning students who require Self Contained classrooms. B. THE REVISED BUPS SPACE ALLOCATION IS NEITHER EQUITABLE NOR COMPARABLE 1. The Education Law Does Not Permit The Creation Of Facilities For A Charter Schools Exclusive Use

The Education Law and the Chancellors Regulations require that the BUP include justification of the feasibility of the proposed allocations and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building. Educ. L. 2853 [3](a-3)(2)(C) (emphasis added); Chancellors Reg. A-190 II.A.2.c. The Revised BUP includes a justification section, but it fails to provide a credible, supportable justification. Moreover, the Revised EIS and Revised BUP propose the creation of a separate gym/cafeteria for SACS, an allocation of space that runs afoul of both the letter and the spirit of the Education Law. The Revised EIS and BUP propose to renovate four rooms adjacent to the current cafeteria to build a separate multi-purpose space to be used as an additional cafeteria and gymnasium in the Brandeis Campus for the exclusive use of the SACS students. See Brooks Aff., Exhibit 3 at p. 11. This land grab is elective in that the capacity of the existing cafeteria is sufficient to serve the entire Brandeis Campus. In the Original EIS and BUP Defendants were straightforward about their intentions: the new space was labeled a cafeteria. See Brooks Aff., Exhibit 1 at p. 3. Defendants attempt to escape the reality of their co-location plan by playing with semantics and renaming the SACS cafeteria a multi-purpose space and now saying it will also be used as the SACS gymnasium. Arguably, any large open space, which describes most if not all cafeterias and gymnasiums, can be a multi-purpose space.

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Defendants have no choice but to attempt this semantic sleight of hand because the Education Law and the Chancellors Regulations classify cafeterias (and gymnasiums) as shared resources and spaces, and require the BUP to propose a collaborative usage of them between the charter school and the non-charter schools. Educ. L. 2853 [3](a-3)(2)(B); Chancellors Reg. A-190 II.A.2.b. The proposed construction of a separate, dedicated cafeteria for the SACS students, as set forth in the Revised BUP, violates not only that requirement, but also the requirement that the required proposal for collaborative usage assures equitable access to such [shared] facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students. Id. The law simply does not permit the creation of exclusive shared facilities for charter schools within public school buildings. The Revised EIS and BUP do not explain let alone justify the need for an additional cafeteria and/or gymnasium. If the existing cafeteria and gymnasia can accommodate the SACS students, then the space being grabbed by SACS for its exclusive multi-purpose space must instead be made available to all schools and students in the Brandeis Campus on an equitable and comparable basis. Alternatively, if the existing cafeteria and gymnasia cannot accommodate the SACS students without displacing students from the existing high schools, or rendering the use of those shared facilities inequitable and non-comparable, then by definition the Revised EIS and BUP have failed to comply with the statutory requirements.

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2.

The Revised BUP Fails To Allocate Adequate Space For The High Schools To Meet Their Students Needs

Global Learning is designated as a Phase 1 Special Education school9 and it can establish independent needs for each student, for each class. See Dahill-Fuchel Aff. 7. In many cases, this means that each Special Education student requires the type of individualized instruction and supervision that can only successfully be provided in smaller group settings. Id. This requires additional space and room, as students need to be pulled out of the regular classroom for such instruction, for resource room activities and instruction, and for counseling. Id. The Special Education teachers both within the school, and within its network, have stated that to meet the needs of Global Learnings Special Education population, the school requires three designated Special Education classrooms and/or offices. Id. Yet at present there are NO designated Special Education rooms available. Id. Of the roster for incoming students, 38 are classified as Special Education students, or 22.2%. Id. 8. Five of those 38 incoming Special Ed students are designated as requiring selfcontained classrooms, 14 are designated for integrated co-teaching, and 19 are designated for resource room. Id. Resource room instruction in particular requires pull out space, if it is to be done effectively, again requiring additional classroom space. Id.

According to Defendants: Schools in Phase I of this Two-Year Phase-In are working to serve the overwhelming majority of students with disabilities in the schools zone or coming to the school through choice processes. In collaboration with parents, and through the IEP process, these schools are refining instructional programs for students with disabilities by taking a fresh look at the strengths and needs of students. Schools in Phase I are focusing on working toward students long-term educational goals, educating students with disabilities with their non-disabled peers, and developing focused recommendations for services that are targeted to student achievement. Schools will use adult and student time differently, and use different groupings of students throughout the day. School Allocation Memorandum 30, FY 12, available at http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy11_12/FY12_PDF/sam30.pdf (emphasis added).

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The co-location has resulted also in Global Learning losing precious counseling space which had allowed its teachers to meet the needs of their students. Since the construction began on the SACS-designated space on what had been the multi-purpose second floor, with the shared art rooms and office spaces, Global Learning lost spaces which Brandeis High School Principal Liquori graciously had shared. Id. 9. Since Global Learning opened in Fall 2009, it had used three rooms within the Brandeis section of the school for counseling. However, once construction on the SACS space began in March, Global Learning was forced to move its counseling department into a former book closet within the schools parameters. See id. 10, Exhibit A. This closet is the only space available to three counselors to provide services to over 200 students. Id. It simply does not offer adequate space or privacy for effective counseling to take place. Other office space is shared with no fewer than 7 staff members who do not have classroom space, and who also require secure, private space for student meetings/counseling during the course of a school day. Id. With no other options, staff have had to make use of stairwells and hallway corners to counsel students, a situation that is unprofessional, distracting, not-private and, consequently, untenable. Id. The Revised EIS claims that ELL and Special Education students will continue to receive their mandated services. Brooks Aff., Exhibit 3 at p. 8. It just omits that students will receive those services in closets, hallways, stairwells and corners. Global Learning currently lacks space to adequately meet student needs, particularly students at risk. The situation only will worsen as its student body and students needs increase at a pace that outstrips its space allocation. For the Fall of 2011, its baseline allocation is increased by the addition of 4 classrooms. But according to the Revised BUP, Global Learning is currently over its baseline allocation by three classrooms. So in reality the increase of four

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classrooms is really only an increase of one. And the increase of one administrative space is undercut by the elimination of one half size space. The allocation in the Revised BUP also ignores that Global Learning is already overcrowded because it utilizes a nontraditional learning model.10 This causes overcrowding because Global Learning has 20 scheduled advisories which meet during the same period. Id. 11. The use of smaller person advisories is supported by the DOE as a program which has been proven to improve student behavior and academics. Id. Advisors often take on roles of guidance counselors as well as academic advising, to help move children towards community and individual success. Id. This model, which comes from a program the DOE has supported, requires slightly smaller class sizes, as well as ability to use circles as a mode of learning consequently, lab rooms with fixed square lab tables are not conducive to success with this mode of instruction. Id. With only 14 Global Learning rooms, the school needs to find six additional spaces for advisory classes. Id. For example, it has made due with using the library to house three distinct groups.11 Id. But this will still leave approximately 60 students without space for their advisories. Defendants apparently believe that so long as space is allocated according to the formula set out in the Footprint, space has been equitably allocated, regardless of the needs of the students within a particular school. However, The Five Ws of the NYC DOE Footprint states that the Footprint is the minimum space allocation for a school, organization or program. Brooks

It has been previously noted by the Supreme Court that Defendants Enrollment Capacity Utilization, even in ordinary circumstances, actually overstates schools capacity. See Campaign for Fiscal Equity v. State, 187 Misc. 1, 50, 719 N.Y.S.2d 475, 508-09 (Sup. Ct. N.Y. Co. 2001). In Campaign for Fiscal Equity v. State, the Court of Appeals noted, One symptom of an overcrowded school system is the encroachment of ordinary classroom activities into what would otherwise be specialized spaces: libraries, laboratories, auditoriums and the like. 100 N.Y.2d 893, 911, fn. 4 (2003). This is precisely what is happening in the Brandeis Campus, and this overcrowding will only be exacerbated by the SACS co-location.
11

10

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Aff., Exhibit 12 at p. 3 (emphasis supplied). Moreover, the Footprint is a guideline for making decisions around space when multiple organizations are located in a building. Id. (emphasis added). This is because the formula underlying the Footprint is based on a set of assumptions. Id. Yet there is nothing in the Footprint which requires Defendants, when allocating space, to ignore facts that do not fit with those assumptions, such as a school having twice the number of special education students as the average New York City public high school or a school having a Bilingual program with a significant population of ELL students who receive mandated services. Indeed, The Five Ws of the NYC DOE Footprint states that [a]dditional space available in excess of the footprint should be divided equitably based on enrollment or special needs. Id. (emphasis added). The Five Ws of the NYC DOE Footprint also states that while the formula is not based on class size, [the DOE will consider a schools current class size. Id. Yet Defendants have failed to account for Global Learnings status as a Phase I school and its pedagogical model which requires smaller class sizes, its actual student enrollment for the 20112012 school year which will lead to an average class size of 32 students, and the special needs of its significant population of ELL students and Special Education students, in allocating space within the Brandeis Campus and determining that this co-location will not impact the students, or the schools ability to properly meet students needs and provide mandated services, at the Brandeis campus. 3. The Revised BUP Improperly Categorizes Shared Space As Regular Classroom Space

The Revised EIS and BUP are premised on the mistaken calculation that the Brandeis Campus currently has 67 full-size classrooms and 14 half-size classrooms (exclusive of science labs and science demo classrooms). Brooks Aff., Ex. 3 at p.3. That calculation derived from the Site Visit Summary counts as full-size classrooms the following spaces: 19

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room 218, the ceramics studio; and room B7, a 1428 square foot platformed music room. It does so even though the DOE Blue Book specifies that [r]egular classrooms include Pre-K to 12th grade classrooms used for regular instruction. See Brooks Aff., Exhibit 10 p. H2. In sum, the Revised EIS and BUP are based upon a vague and/or inaccurate room assessment. Unlike the dance studio and future black box, the music room does not appear in the BUPs shared space analysis. It is unclear why this valuable resource was omitted. Defendants describe B7 merely as a classroom with a small raised platform currently used for music instruction. See April 21, 2011 Affidavit of Thomas Taratko. This is a curious description for a space Defendants spent over $287,000 renovating in 2006. See Exhibit A to the July 29th Affidavit of Shulamit Warren.12 Likewise, contrary to Defendants assertion in Paragraph 7 of the Taratko Affidavit, the ceramics studio was not exclusively used by Global Learning, but was one of the shared art rooms housed on the second floor. See Dahill-Fuchel Aff. 9. Neither the BUP nor the Taratko Affidavit explain why the ceramics studio should no longer be a shared space, whether it remains in Room 218 or if it is relocated to another space within the Brandeis Campus. C. THE REVISED EIS AND BUP FAIL TO OFFER THE NECESSARY ANALYSIS OF THE IMPACT OF THE SACS CO-LOCATION 1. Safety and Impact on Students and The Community

The Education Law and Chancellors Regulations require that the EIS include the ramifications of such significant change in school utilization upon the community, as well as

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

12

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the impacts of the proposed significant change in school utilization to any affected students. Educ. L. 2590-g [2-a](b)(i)-(ii); Chancellors Reg. A-190 II.A.1.c, II.A.1.f. The Education Law and Chancellors Regulations also require that the BUP provide information on building safety and security. Education Law 2853 [3][a-3][2][D]; Chancellors Reg. A-190 II.A.2.a.ii.d. The Revised EIS does not meaningfully address the impact on either the community or the affected students and the BUP merely offers impermissible boilerplate for information about building safety and security.13 See Mulgrew v. Bd. of Educ., 75 A.D.3d 412, 414 (1st Dept

13

The Revised BUP provides: Pursuant to Chancellors Regulation A-414 every school/campus must have a School Safety Committee. The committee plays an essential role in the establishment of safety procedures, the communication of expectations and responsibilities of students and staff, and the design of prevention and intervention strategies and programs specific to the needs of the school. The committee is comprised of various members of the school community, including Principal(s); designee of all other programs operating within the building; U.F.T. Chapter Leader; Custodial Engineer/designee; and In-house School Safety Agent Level III. The committee is responsible for addressing safety matters on an ongoing basis and making appropriate recommendations to the Principal(s) when it identifies the need for additional security measures, intervention, training, etc. The committee is also responsible for developing a comprehensive School Safety Plan which defines the normal operations of the site and what procedures are in place in the event of an emergency. The plan must be consistent with the citywide prescribed safety plan shell. Each program operating within a school must enter program specific information in the School Safety Plan. Safety plans are updated annually by the School Safety Committee in order to meet changing security needs, changes in organization and building conditions and other factors. In addition, the committee recommends changes in the safety plan at any other time when it is necessary to address security concerns. Consistent with the process described above, the leader/designee of SACS will be part of the Brandeis Campus Safety Committee. As a member of the School Safety Committee, the leader/designee of SACS will participate in the development of the buildings Safety Plan and ensure that any security related issues or needs which may arise with respect to the co-location of SACS will be addressed on an ongoing basis. Moreover, the Safety Plan for the M470 school building will be modified as appropriate to meet any changing security needs associated with the co-location. SACS will enter information in the schools overall Safety Plan to ensure the safe operation of the school building. Each school building must also establish a Building Response Team (BRT) that will consist of trained staff members from each of the campus schools, and which is activated when emergencies or large building-wide events occur. The members of this team must be identified and listed in the School Safety Plan.

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2010) (respondents do not discharge their obligation by providing nothing more than boilerplate information). The BUP provides no information whatsoever regarding the current Security Plan for the Brandeis Campus (although the EIS reveals that it includes having students and visitors pass through metal detectors), nor is there any analysis of how the co-location will impact that plan. While the EIS does not explicitly address safety concerns, it dismisses the idea that co-locating elementary school aged children in a high school with a significant population of over-aged students could present any problems, safety or otherwise. Rather than address the panoply of problems that may ensue from throwing grade schoolers into a building filled with upward of 1,500 later-age teenagers and young adults, the Revised EIS states that, The DOE, in consultation with the Building Council, will, where possible allocate contiguous and dedicated space to SACS to ensure the safety of all students. Brooks Aff., Exhibit 1 at p. 8. However, the EIS recognizes that the SACS students and the high school students on the Brandeis Campus will also share space. Id. at p. 11 (SACS will share space in the dance studio, auditorium, and playground/yard/garden). This means that high school students are certain to move through SACS space, as the only way to the courtyard/garden, which the Revised BUP has scheduled as a shared space, is through entrances on the second floor, where SACS classrooms are being located. See Dahill-Fuchel Aff. 12. Even if facilities were not going to be shared, neither the Revised BUP nor the Revised EIS explain how high school students will move abut the building without needing to cross through space occupied by SACS, or vice versa.

The completed Safety Plan for the M470 school building will be submitted to the Borough Safety Directors of the Office of School and Youth Development for approval. If changes or modifications are necessary, the School Safety Committee will be advised. Once the Schools Safety Plan is approved, it will be submitted to the NYPD for final approval and certification by the NYPD. Brooks Aff., Exhibit 2 at p. 26.

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What both the Revised EIS and Revised BUP gloss over is that the safety situation at the Brandeis Campus is such that the Security Plan calls for students and visitors to pass through metal detectors. However, due to NYPD and DOE policy, students at SACS would not be subject to scanning to gain entry to the building[.] Brooks Aff., Exhibit 1 at p. 8. Therefore, anything could find its way not only into the Brandeis Campus, but also into the hands of the high-school students there. The co-location plan thus risks comprising the entire security structure of the Brandeis Campus, potentially endangers every student (and person) in that building, and as noted by Manhattan Community Board 7, would add unreasonable supervision and logistical demands on educators and administrators, as well as on security staff . Brooks Aff., Exhibit 5. Rather than provide an analysis of why the unscreened SACS students do not pose a security risk, or explain the steps that will be taken to ensure that no contraband is brought into the building by SACS students, the Revised EIS dismisses these risks by giving three examples where high schools are purportedly co-located with elementary schools, the Julia Richman Campus, Building M013, and the Adlai Stevenson Campus, and stating that none of these colocations have presented any unusual problems. Brooks Aff., Exhibit 1 at p. 11. 14 However, the examples Defendants use to summarily dismiss safety concerns are so factually distinct they render Defendants analysis misleading and meaningless. While the Julia Richman Campus does house an elementary school with high schools, this is the result, not of a random co-location to which the community is overwhelming opposed, but of a comprehensive redesign from a single school into small autonomous learning communities, including the elementary school. Brooks Aff., Exhibit 6 at p. 1. The redesigned
The co-location of an elementary school with a high school is such an anomaly that there is no Footprint to determine the proper allocation of space for such a co-location. See The Five Ws of the NYC DOE Footprint, Brooks Aff., Exhibit 12 at p. 7.
14

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Richman Campus was conceptualized and designed as a multi-age, multi-service learning community. Id. Indeed, creating a multi-age community was seen as a centerpiece of the redesign. Id. at p. 2. Furthermore, the schools in the Richman Campus do not have contiguous and dedicated space where possible. Rather, when the building was redesigned, [s]pace in the complex [was] configured so that each school has its own defined space: its own classrooms, offices, bathrooms, and stairways. School boundaries are defined so that no one needs to walk through another schools space in order to get to his or her school or to a common facility. Attention to such detail has important security implications[.] Id. at p. 3. Neither the Revised EIS nor the Revised BUP pay any attention the these important details. For all intents and purposes, the students at the Richman campus occupy segregated spaces, despite Defendants claim that such segregation is not required. See Defendants Answer 231. Moreover, the students and visitors to the Richman Campus are not required to go through metal detectors. The Richman Campus experience is so different it offers no support for the claim that SACS can be co-located without creating security risks. Likewise, none of the students at Building M013, which houses Central Park East I Elementary School, Jackie Robinson Junior High School and Central Park East High School, are required to pass through metal detectors. The Revised EIS also fails to disclose that student population is significantly smaller than at Brandeis: Central Park East Elementary has an enrollment of only 189 students, Jackie Robinson has only 265 students and Central Park East High School has only 402 students, for a total of 856 students. See Brooks Aff., Exhibit 7 at p. 2. Not only is the student population smaller, but the building has more room as it has capacity for 1,291 students. Id. The Revised EIS also fails to offer any analysis whether space in Building

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M013 is allocated in a similar fashion as it will be in the Brandeis Campus, or if every school has dedicated space like the Richman Campus, which does not require students to cross into another schools space in order to get to his or her school or to a common facility. Nothing in the analysis contained in the Revised EIS demonstrates that the potential for security risks at the Brandeis Campus can be gleaned from the experience of Building M013. Of the three examples offered in the Revised EIS, only one involves a school where students are subject to security screening, the Adlai Stevenson Campus. Brooks Aff., Exhibit 1 at p. 11. But there is no elementary school at the Stevenson Campus. Rather, there is only a full day pre-Kindergarden. The Revised EIS also states that [t]he pre-Kindergarten students on the Stevenson Campus have been allocated contiguous and dedicated space within the building. Id. at p. 8. Whether this means that, like in the Richman campus, no students from any other school need to come into P.S. 138s space, and vice versa, is left unsaid. Nor does the Revised EIS provide any information regarding whether the P.S. 138 students share any facilities with the high school students. Defendants essentially claim that because there have been no unusual problems with three and four year old pre-Kindergardeners there should be no problems with elementary school aged students. The fact that Defendants assume there is the same risk that contraband will be introduced to the school by seven, eight, nine and ten year old elementary school students, who are not always supervised by a parent on their way to or from school, as there is with three and four year old pre-Kindergardeners is another example of Defendants superficial

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analysis of the impact of this co-location.15 The Brandeis Campus has metal detectors because Defendants believe they are necessary to ensure the students and staffs safety. Moreover, Defendants creation of a separate cafeteria/gymnasium for SACS, see supra I.A.1., demonstrates that, on some level, they recognize the potential risks of combining these populations.16 Defendants have blinded themselves to the very real possibility that a high school student could circumvent this security by bribing, intimidating or threatening an unsupervised SACS student into bringing contraband, including a weapon, into the building. This Court should make them open their eyes and find that the Revised EIS and Revised BUP do not adequate address the issues of this co-locations impact on the students, the community and school safety. 2. Effect on Personnel Needs

The Education Law and Chancellors Regulations require that the EIS include the effect of such significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services. Educ. L. 2590-g [2-a](b)(iv); Chancellors Reg. A-190 II.A.1.h. The Revised EIS, however, does not assess the monitoring needed to ensure safety for all students in a space shared by high school students (some up to 21 years old) and elementary students as young as five years, nor does it address the unreasonable supervision and logistical demands that will be placed on educators, administrators, or security
The media is rife with stories of elementary school students bringing guns to school. See, e.g., http://www.wcnc.com/news/local/Gun-goes-off-inside-elementary-school-classroom-93432609.html; http://www.msnbc.msn.com/id/42665638/ns/us_news-crime_and_courts/t/-year-old-brings-gun-houston-schoolhurt/; http://www.robesonian.com/view/full_story/6812523/article-Loaded-gun-brought-to-elementaryschool?instance=secondary_news_left_column. On the Richman Campus, which Defendants hold up as an example justifying the co-location of an elementary school with high schools, the students share all facilities. See Brooks Aff., Exhibit 6. Likewise, students in Building M013 also share facilities such as the cafeteria and gymnasium. See Brooks Aff., Exhibit 8 at p. 11-15. Defendants creation of the separate gym/cafeteria for SACS demonstrates that Defendants do not truly view these co-locations, and the risks they pose to student safety, as comparable situations.
16 15

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staff, or the costs associated with the monitoring or the demands. The Revised EIS does not even address if current staffing levels are sufficient for the necessary student supervision. There are strong indicators that they are not. According to the Office of School and Youth Development from September through June of this past school year, Global Learning17 had 68 violent and/or disruptive incidents take place in the hallways of the Brandeis Campus which were recorded in DOEs On-line Occurrence Reporting System (OORS). See Dahill-Fuchel Aff. 13. Overcrowding has caused students to walk through and hide in other parts of the building, and due to insufficient personnel, there is no oversight or supervision once they are out of school boundaries. Id. No where in the Revised EIS or Revised BUP is there any discussion or analysis of the level of OORS incidents within the Brandeis Campus, steps that will be taken to minimize such incidents throughout the building but particularly within SACS space, or how such incidents will be handled should they take place within SACS space. Instead, the Revised EIS merely states that, [t]his co-location is not expected to change the number of personnel positions required at any of the high schools in the Brandeis Educational Campus, or significantly alter the duties of current staff. In light of Defendants failure to acknowledge the current safety and security situation on the Brandeis Campus, as well as the added security risks created by the co-location, their position is not surprising. CONCLUSION The purpose behind the Education Laws requirements for the EIS and BUP is to ensure that co-locations are not forced upon schools and communities. As Assembly Member Glick stated in support of the 2010 Amendments to the Education Law:
17

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

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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 co-locations. Assembly Debate Transcripts, 2010 Chap. 101 at 106.18 It would make a mockery of the Education Law, in particular the 2010 amendments, if Defendants are permitted to issue EISs and BUPs that offer nothing more than Defendants unsupported assumptions that a co-location will have no impact on the existing schools and students in buildings slated for co-locations. The Revised EIS and Revised BUP for the SACS co-location do just that. They are devoid of any meaningful analysis of the current schools and students needs for space, services and security, and what is offered is grossly misleading. These deficiencies so misinformed the community and PEP that this Court should annul the PEP vote on the basis that it is arbitrary and capricious. Accordingly, Plaintiffs request summary judgment on their Third, Fourth, Fifth and Sixth Causes of Action. Dated: New York, New York August 3, 2011 PHILLIPS NIZER LLP By: /s/ Jon Schuyler Brooks Jon Schuyler Brooks Marc Andrew Landis Elizabeth A. Adinolfi Attorney for Plaintiffs
18

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

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

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