affirmation of jon schuyler brooks in support of plaintiffs' motion for partial summary...

8/6/2019 Affirmation of Jon Schuyler Brooks in Support of Plaintiffs' Motion for Partial Summary Judgment

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SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENT-----------------------------------------------------------------------

LISA STEGLICH, individually and as parent and natural

guardian of ALEXANDER HERLIHY, infant, RIC

CHERWIN, individually and as parent and natural guardianof MARLEY CHERWIN, infant, CAROL BARKER,

individually and as parent and natural guardian of OMARIBROWN, infant, GINA DEMETRIUS, individually and as

parent and natural guardian of SEBASTIAN

DEMETRIUS, KIMBERLY JARNOT, individually and asparent 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 naturalguardian of ASHOK KAUL, infant, RUBEN and

GERALDINE LOPEZ, individually and as parents andnatural guardians of SHANE LOPEZ, infant, MADELINEOLMEDA, individually and as parent and natural guardian

of CRISTINA JULLIA CRUZ, infant, LAZARA

QUINONES, individually and as parent and naturalguardian of DORIS ALCANTARA, infant, and

MARILYNN SARJEANT, individually and as parent and

natural guardian of ALIYA CLUNIE, infant,

Plaintiffs-Appellants,

-against-

THE BOARD OF EDUCATION OF THE CITY SCHOOL

DISTRICT OF THE CITY OF NEW YORK a/k/a THEPANEL 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-Respondents,

- and -

UPPER WEST SUCCESS ACADEMY CHARTER

SCHOOL a/k/a SUCCESS ACADEMY CHARTERSCHOOL, MATTHEW MOREY, individually and as

parent and natural guardian of infants THOMAS MOREY

and CLAIRE MOREY, MARTIN AARES, individuallyand as parent and natural guardian of infant SABINEBALOU-AARES, GABRIEL BAEZ, individually and as

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NEW YORK COUNTY

Index No. 107173/11

AFFIRMATION OF

JON SCHUYLER BROOKS

ILED: NEW YORK COUNTY CLERK 08/03/2011 INDEX NO. 107173/

YSCEF DOC. NO. 106 RECEIVED NYSCEF: 08/03/



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parent and natural guardian of infant CHRISTOPHER

BAEZ, LISBETH DELOSSANTOS, individually and asparent and natural guardian of infant MIYAH MUZO,

ELANA KILKENNY, individually and as parent and

natural guardian of infant LIAM KILKENNY, ELISSA

KLEIN, individually and as parent and natural guardian of infant AVA KLEIN, REBECCA KUHAR, individually and

as parent and natural guardian of infant ROBERTMAXWELL KUHAR, LATISHA SINGLETARY,

individually and as parent and natural guardian of infant

RANIYA GARRETT-WELLS, MICHAEL SUCHANEK,individually and as parent and natural guardian of infants

SALLY SUCHANEK and AMELIA SUCHANEK, and

DAVID TURNOFF, individually and as parent and natural

guardian of infant HUNTER KIM-TURNOFF,

Intervenor-Defendants-Respondents.

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JON SCHUYLER BROOKS, an attorney admitted to practice in the state of New York,

hereby affirms the following under the penalty of perjury:

1. I am a partner at Phillips Nizer LLP, attorney for Plaintiffs-Appellants in this

action.

2. On December 17, 2010, Defendant the Board of Education of the City School

District of the City of New York, n/k/a the Panel on Educational Policy (“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



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Brandeis Campus (the “Co-Location Proposal”) at a public meeting to be held on February 1,

2011.

3. On December 17, 2010, Defendants Chancellor of the City School District of the

City of New York (the “Chancellor”) and/or New York City Department of Education (“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”), annexed hereto as Exhibit 1, and “Building Utilization Plan”

(“BUP”), annexed hereto as Exhibit 2, relating to the Co-Location Proposal.

4. 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 elementary-

school age.” Exhibit 1 at p. 3.

5. 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.” Exhibit 1 at p. 3.

6. 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



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mandated special education and/or ESL services if this proposal is approved.” Exhibit 1 at pp. 3-

4

7. 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”.

8. 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.

9. 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.

10. On January 31, 2011, PEP published the public comment analysis (“Public

Comment Analysis”) relating to the Co-Location Proposal.

11. 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.

12. 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.

13. On February 1, 2011, PEP commenced a meeting at which, among other things, it

considered the Co-Location Proposal, including the EIS and BUP.

14. On February 2, 2011, PEP voted to approve the Co-Location Proposal (the

“February PEP Vote”).

15. 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.

16. On April 25, 2011, Defendants herein filed their Verified Answer in Steglich I

opposing the Verified Petition.

17. On May 10, 2011, Plaintiffs herein filed their Verified Reply in Steglich I .

18.

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.

19. 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;



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20. 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

Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School

(03M417) in the Brandeis Educational Campus” (the “Revised Notice”).

21. 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”), annexed hereto as

Exhibit 3, and “Revised Building Utilization Plan” (“Revised BUP”), annexed hereto as Exhibit

4.

22. 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 Exhibit 4 at p. 3.

23. 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. Exhibit 3

at p. 11; Exhibit 4 at pp. 4, 19.



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24. 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.” Exhibit 3 at p. 8.

25. 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.” Exhibit 3 at p. 8.

26. The Revised EIS states that Global Learning has 2091 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. 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.

27. 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.” Exhibit 4 at p. 6. According to the Revised BUP, Global Learning’s baseline allocation

1According 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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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. Exhibit 4 at p. 11.

28. 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.” 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”).

29. 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[.]”

Exhibit 3 at p. 8.

30. 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”. Exhibit 4 at p. 11.

31. The Revised BUP provided the following boilerplate provision regarding safety

and security:

Pursuant to Chancellor’s Regulation A-414 every school/campus must have aSchool 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. Thecommittee is comprised of various members of the school community, including



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Principal(s); designee of all other programs operating within the building; U.F.T.

Chapter Leader; Custodial Engineer/designee; and In-house School Safety AgentLevel 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 SafetyPlan 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 updatedannually 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 timewhen 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 SchoolSafety Committee, the leader/designee of SACS will participate in the

development of the building’s Safety Plan and ensure that any security relatedissues 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 needsassociated with the co-location. SACS will enter information in the school’s

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 membersof 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 Committeewill be advised. Once the School’s Safety Plan is approved, it will be submitted to

the NYPD for final approval and certification by the NYPD.

Exhibit 4 at p. 26.

32. 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



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(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”).

33. On June 16, 2011, Defendant PEP completed the translation of the Amended

Revised Notice into Spanish, and thereafter published the same.

34. On June 20, 2011, the Plaintiffs filed their Complaint seeking a Declaratory

Judgment that, inter alia, the Revised EIS and Revised BUP were nullities.

35. On June 27, 2011, PEP relied upon the Revised EIS and Revised BUP to approve

for the second time the Co-Location Proposal.

36. On June 30, 2011, Plaintiffs filed their Amended Complaint seeking, inter alia, to

have the June 27, 2011 PEP vote declared a nullity

37. Annexed hereto as Exhibit 5 is the Community Board 7 Resolution regarding

Proposed Co-Location of Upper West Success at the Brandeis High School, dated January 4,

2011.

38. Annexed hereto as Exhibit 6 are printouts from the official website of the Julia

Richman Education complex.

39. Annexed hereto as Exhibit 7 is a true and correct copy of the May 13, 2011

Revised Educational Impact Statement for the Proposed Temporary Co-location of East Harlem

Scholars Academy Charter School.



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40. Annexed hereto as Exhibit 8 is a true and correct copy of the May 13, 2011

Revised Building Utilization Plan for the Proposed Temporary Co-location of East Harlem

Scholars Academy Charter School.

41. Annexed hereto as Exhibit 9 is a true and correct copy of the November 22, 2010

Space Utilization Summary.

42. Annexed hereto as Exhibit 10 is a true and correct copy of the relevant portions of

the Blue Book.

43. Annexed hereto as Exhibit 11 is the April 21, 2011 Affidavit of Thomas Taratko.

44. Annexed hereto as Exhibit 12 is the DOE publication, The Five Ws of the NYC

DOE Footprint , available at http://schools.nyc.gov/NR/rdonlyres/262D4535-6A99-460A-A2EF-

239FC22FC533/51667/NYCDOEFootprint.pdf.

Dated: New York, New York

August 2, 2011

__/s/ Jon Schuyler Brooks_____

Jon Schuyler Brooks

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