department of education legal response – uft/csa lawsuit

7/31/2019 Department of Education Legal Response UFT/CSA Lawsuit

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK, IAS PART 6----------------------------------------------------------------------- x

MICHAEL MULGREW, et ano.,

Petitioners,

-against-

BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEW YORK, et ano.,

Respondents.

VERIFIED ANSWER

Index No. 600002/2012(Lobis, J.)

----------------------------------------------------------------------- x

Respondents, the Board of Education of the City School District of the City of

New York (now known as the New York City Department of Education (DOE)) and Dennis

M. Walcott, as Chancellor of the DOE, by their attorney, Michael A. Cardozo, Corporation

Counsel of the City of New York, as and for their Verified Answer to the Verified Petition

herein, respectfully allege as follows:

1. Deny the allegations set forth in paragraph 1 of the Verified Petition,except admit that Petitioners purport to proceed as set forth therein, that collective bargaining

agreements (CBAs) exist between the DOE and the United Federation of Teachers (UFT)

and the Council of School Supervisors and Administrators (CSA), and respectfully refer the

Court to those collective bargaining agreements, copies of which are annexed hereto as Exhibits

1 and 2, for complete and accurate statements of the provisions referred to in Paragraph 1 of

the Verified Petition.

2. Deny the allegations set forth in paragraph 2 of the Verified Petition,except admit that on April 26, 2012, the Panel for Educational Policy (PEP) authorized the

DOE to close 24 struggling schools that the DOE will replace with new schools, subject to the

approval of the State Education Department (SED), the excessing of teaching staff at the


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closing schools and the hiring of teaching staff at new schools will be conducted in accordance

with the applicable provisions of the UFT CBA, the hiring process detailed in Article 18D of the

UFT CBA will be utilized, and respectfully refer the Court to the UFT CBA, a copy of which is

annexed hereto as Exhibit 1, for a complete and accurate statement of Article 18D and the other

provisions referred to in paragraph 2 of the Verified Petition.

3. Deny the allegations set forth in paragraph 3 of the Verified Petition,except admit that the excessing of supervisory staff at the closing schools and the appointing of

supervisory staff to new schools will be conducted in accordance with the provisions of the CSA

CBA, and respectfully refer the Court to the CSA CBA, a copy of which is annexed hereto as

Exhibit 2, for a complete and accurate statement of the provisions referred to in paragraph 3 of

the Verified Petition.

4. Deny the allegations set forth in paragraph 4 of the Verified Petition.5. Deny the allegations set forth in paragraph 5 of the Verified Petition,

except admit that Petitioners purport to proceed as set forth therein, including by seeking

arbitration of administrative grievances filed against the DOE by the UFT and the CSA, alleging

that the DOEs closure of 24 struggling schools would violate Petitioners respective CBAs.

6. Deny knowledge or information sufficient to form a belief as to theallegations set forth in paragraph 6 of the Verified Petition, except admit that the UFT is the

recognized bargaining agent for all nonsupervisory pedagogical personnel and classroom

paraprofessionals employed by the DOE.

7. Deny knowledge or information sufficient to form a belief as to theallegations set forth in paragraph 7 of the Verified Petition, except admit that the CSA is the

recognized bargaining agent for all supervisory pedagogical personnel employed by the DOE.


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8. Deny the allegations set forth in paragraph 8 of the Verified Petition,except admit that the DOE has offices located at 52 Chambers Street, New York, New York, that

the DOE exists under the New York Education Law, and respectfully refer the Court to

Education Law 2590-g for a description of the powers and duties of the DOE.

9. Deny the allegations set forth in paragraph 9 of the Verified Petition,except admit that Respondent Dennis M. Walcott is the Chancellor of the DOE, and respectfully

refer the Court to New York Education Law 2554 and 2590-h for a statement of the powers

and duties of the Chancellor.

10.

Deny the allegations set forth in paragraph 10 of the Verified Petition.


except admit that each of the 24 closing schools are designated by the SED as persistently

lowest achieving (PLA).

13. Deny the allegations set forth in paragraph 13 of the Verified Petition,except admit that a number of schools were identified as PLA, the DOE chose to seek School

Improvement Grant (SIG) funding for 33 of those schools by implementing Transformation

and Restart as authorized by 1003(g) of the Elementary and Secondary Education Act of

1965, this implementation was contingent on, among other things, the DOE and the UFT

agreeing on a new teacher evaluation system by December 31, 2011, the DOE and the UFT were

unable to reach an agreement on a number of integral elements of this new teacher evaluation

system, because of this and other reasons, the DOE determined it was no longer appropriate to

implement Transformation and Restart at those 33 PLA schools, and that the UFT filed an


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Improper Practice charge with the New York State Public Employment Relations Board that is

still pending.

14. Deny the allegations set forth in paragraph 14 of the Verified Petition,except admit that the DOE determined that 24 PLA schools should be closed and replaced with

new schools in a manner which may make them eligible for SIG funds pursuant to the

Turnaround model.

15. Deny the allegations set forth in paragraph 15 of the Verified Petition,except admit that Mayor Michael R. Bloombergs State of the City Address in January 2012

discussed the DOEs plan to seek replacement SIG funding for 33 PLA schools under the

Turnaround model, as authorized by Federal and State law and Petitioners CBAs, and

respectfully refer the Court to the full text of the Mayors 2012 State of the City Address,

annexed to the Verified Petition as Exhibit C, for a complete and accurate statement of the

Mayors speech.

16. Deny the allegations set forth in paragraph 16 of the Verified Petition,except admit that on April 26, 2012, the PEP approved closure of 24 struggling schools.

17. Deny the allegations set forth in paragraph 17 of the Verified Petition,except deny knowledge or information sufficient to form a belief as to the allegations set forth in

paragraph 17 of the Verified Petition concerning statements made by the Mayor to UFT

President Michael Mulgrew, and respectfully refer the Court to the exhibit cited therein for a

complete and accurate statement of its contents.

18. Deny the allegations set forth in paragraph 18 of the Verified Petition,except admit that among the circumstances under which DOE teaching staff may be excessed is

when a school is closed and a new or redesigned school is opened in its place, that a new or


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redesigned school should be staffed in accordance with Article 18D of the UFT CBA, and

respectfully refer the Court to the UFT CBA, a copy of which is annexed hereto as Exhibit 1, for

a complete and accurate statement of the hiring process outlined in Article 18D.

19. Deny knowledge or information sufficient to form a belief as to theallegations set forth in paragraph 19 regarding what relief Petitioners will seek at arbitration,

should their administrative grievances be arbitrable, and deny each and every other allegation set

forth in paragraph 19 of the Verified Petition, and respectfully refer the Court to the UFT CBA

for a complete and accurate statement of its contents.

20.

Deny the allegations set forth in paragraph 20 of the Verified Petition,

except admit that among the circumstances under which DOE supervisory staff may be excessed

is when schools, such as the 24 struggling schools at issue here, are closed, that the new schools

will serve virtually the same student populations as the closing schools in the same building, and

that in some instances the new schools will retain the same principal as the closing school, and

respectfully refer the Court to the UFT CBA, a copy of which is annexed hereto as Exhibit 2

for a complete and accurate statement of its contents.

21. Deny the allegations set forth in paragraph 21 of the Verified Petition,except admit that Deputy Chancellors Marc Sternberg and David Weiner met with the CSA on

January 19, 2012 and advised that supervisory staff at the 24 closing schools will be excessed

pursuant to Article VII(L) of the CSA CBA, that certain of the principals from the closing

schools would serve as principals of the new schools, that principals of new schools would be

able to select their assistant principals, and that students who would have attended the closing

school will be reserved a space in the new schools, and respectfully refer the Court to the CSA


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CBA, a copy of which is annexed hereto as Exhibit 2, for a complete and accurate statement of

Article VII(L).


except admit that both the UFT and the CSA filed administrative grievances on April 30, 2012,

respectfully refer the Court to copies of those grievances, annexed to the Verified Petition as

Exhibits E and F, for a complete and accurate statement of those contents, and respectfully refer

the Court to the UFT CBA and the CSA CBA, copies of which are annexed hereto as Exhibits 1

and 2, for a complete and accurate statement of the administrative grievance and arbitration

processes that may be available to Petitioners under the express circumstances detailed therein.

24. Deny the allegations set forth in paragraph 24 of the Verified Petition,except admit that Petitioners purport to proceed as set forth therein, that suspending the DOEs

hiring processes could potentially cause disruption to the DOEs teacher reassignment process at-

large, and respectfully refer the Court to 7502(c) of the N.Y. Civil Practice Law and Rules for

a complete and accurate statement of its contents.

25. Deny the allegations set forth in paragraph 25 of the Verified Petitionexcept admit that the new schools will open as of July 1, 2012 and begin serving students in

September 2012.

26. Repeat and reallege the responses to paragraphs 1 through 25 of theVerified Petition as if fully set forth herein.

27. Deny the allegations set forth in paragraph 27 of the Verified Petition.28. Deny the allegations set forth in paragraph 28 of the Verified Petition.29. Deny the allegations set forth in paragraph 29 of the Verified Petition.


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30. Deny the allegations set forth in paragraph 30 of the Verified Petition.31. Deny the allegations set forth in paragraph 31 of the Verified Petition.32. Repeat and reallege the responses to paragraphs 1 through 31 of the

Verified Petition as if fully set forth herein.

33. Deny the allegations set forth in paragraph 33 of the Verified Petition.34. Deny the allegations set forth in paragraph 34 of the Verified Petition.35. Deny the allegations set forth in paragraph 35 of the Verified Petition.36. Deny the allegations set forth in paragraph 36 of the Verified Petition.37.

Deny the allegations set forth in paragraph 37 of the Verified Petition.

AS AND FOR A STATEMENT OF THE

PERTINENT AND MATERIAL FACTS,

RESPONDENTS RESPECTFULLY ALLEGE

AS FOLLOWS:

A. Persistently Lowest Achieving Schools38. Each year, the State Education Department (SED) designates a number

of schools as Persistently Lowest Achieving (PLA). See Affirmation of Marc Sternberg,

Deputy Chancellor for Portfolio Planning, (Sternberg Aff.) 6. Following federal guidelines

and its own regulations, the SED evaluates the following factors to identify PLA schools;

Grade 3-8 English Language Arts and mathassessments;

performance of students who first enteredninth grade in terms of meeting thegraduation assessment requirements in

English Language Arts and Mathematics;and

schools graduation rates.See 74 Fed. Reg. 65618, 65651 (Dec.10, 2009); 8 N.Y.C.R.R. 100.2(p)(9).


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39. The SEDs designation of a school as a PLA school can be used forpurposes of determining eligibility for federal funding under the Federal School Improvement

Grant (SIG) program. See Sternberg Aff. 9. These funds are meant to be catalysts for

actions urgently needed to improve schools which are not making adequate yearly progress, such

as PLA schools. See id. As noted in the Preamble to the draft guidelines for SIG funds, the

U.S. Secretary of Education is committed to turning around[,] over five years[,] the 5,000

lowest-achieving schools nationwide, and School Improvement Grants are a centerpiece of that

strategy, to support only the most rigorous interventions that hold the promise of producing

rapid improvements in student achievement and school culture. 74 Fed. Reg. 43101, 43102

(Aug. 26, 2009)

40. In May 2011, the SED had identified 54 schools in New York City as PLAschools. See Sternberg Aff. 16.

B. Interventions for PLA Schools41. SED regulations require PLA schools to implement one of four

intervention models which correspond to strategies that must be implemented to qualify for

funds through the Federal SIG programthese strategies are to be implemented in a format and

under a timeline approved by the SED. See 8 N.Y.C.R.R. 100.2(p)(10)(iv); U.S. Dept of Educ.

SIG Requirements, 74 Fed. Reg. 65618, 65650 (Dec. 10, 2009); Sternberg Aff. 10.

42. Specifically, the four different intervention strategies are:(1) Transformation: augments instructional and

student support services and creates new teacherincentive and teacher development systems to buildand retain quality staff;

(2) Restart:schools are partnered with a non-profitEducational Partnership Organization (EPO) thatmakes recommendations to the DOE for specific


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school-based interventions to raise studentachievement;

(3) Turnaround: schools develop new instructionalprograms and student supports similar to thosedeveloped in Transformation, but also replace atleast half of the schools staff in order to improveteacher quality; and

(4) Closure: schools are closed and the studentswho attend the schools are dispersed into otherexisting schools.

See Sternberg Aff. 11-14.

43. For Transformation and Restart, in addition to the requirements detailedabove, schools are required to implement a comprehensive teacher evaluation system that

enables schools to improve student achievement through a more robust and rigorous teacher

evaluation process. See id. at 15. Effectively, this process results in more targeted support for

struggling teachers and greater accountability for ineffective teachers by allowing the DOE to

expeditiously remove ineffective teachers. See id.

44. It should additionally be noted that once a school district selects anintervention strategy for a PLA school, the school district is permitted to change intervention

strategies (e.g., Transformation to Turnaround). See id. at 26. A copy of an SED Field

Guidance Memorandum dated April 2011 that details the permissibility of changing intervention

strategies is annexed hereto as Exhibit 3.

C. The DOEs Current Initiative45. In May 2011, following a review of the 54 PLA schools in New York

City, the DOE assigned 44 of these schools to implement one of the four intervention strategies

noted above, and submitted SIG applications to SED where appropriate. See Sternberg Aff.

16.


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46. Following the SEDs review and approval, 19 schools were assigned to theTransformation model and 14 schools were assigned to the Restart model. See id. at 17.

47. An additional 11 schools, which the DOE concluded were unable toquickly improve student performance, were assigned to implement the phase in/phase out

version of the Turnaround model, where one or more new schools replace the PLA school over a

number of years, while the PLA schools stop accepting students and phase out gradually. See id.

at 18.

48. For the remaining 10 schools, the DOE decided to collect additionalinformation to determine the most appropriate intervention and, therefore, these schools were not

assigned a SIG model. See id. at 19. Instead, the DOE provided $300,000.00 in Title I funding

to support each of those schools in beginning some initial improvement work and planning for

more intensive intervention in subsequent years. See id.

49. As mentioned above, SIG funding for the 33 schools assigned to theTransformation and Restart models was contingent on the DOE and the UFT agreeing on a new

teacher evaluation system by January 1, 2012. See id. at 20.

50. By the January 1, 2012 deadline, the DOE and the UFT were unable toreach agreement on of the terms of a new teacher evaluation system and, accordingly, the SED

informed the DOE that all 33 schools assigned to the Transformation and Restart models would

no longer receive SIG funding to continue reforms under Transformation and Restart. See id.

51. After the SED informed the DOE that SIG funding was no longeravailable for the 33 schools assigned to the Transformation and Restart models, the DOE looked

to alternative approaches to ensure that the reforms initiated under Transformation and Restart

would continue and, indeed, be strengthened. See id. at 21.


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52. The continuing lack of a new teacher evaluation system also led the DOEto further explore its available options to improve teacher quality. See id. at 22. The dilemma

the DOE faced was that schools assigned to the Transformation and Restart models would be

forced to enter yet another school year without the ability to evaluate and, if necessary, replace

staff in a way that would best support student outcomes. See id. Moreover, even if the DOE and

the UFT subsequently reach an agreement on teacher evaluations, it would likely take at least

two more years to seek the removal of poorly-performing teachers from the classroom. See id.

53. Furthermore, for purposes of SIG funding, the Closure model involvesclosing a school and dispersing the students who attended that school to other existing schools

across the city. Because this would not result in the creation of replacement seats in the specific

school community, the DOE is not using this model. See id. at 23.

54. After thorough consideration of all available options, the DOE concludedthat many PLA schools should be closed and replaced by new schools. See id. at 24. By

implementing this strategy, the DOE will be able to align the DOEs intervention strategy with

the schools most recent performance data and the DOEs most recent assessment of the steps

needed to improve performance at the school, and immediately increase the quality of teachers

serving students currently attending the schools designated for closure. See id.

55. Subsequently, through the DOEs ongoing review and evaluation of theseschools, it was determined that nine of the schools initially slated to be closed had strong enough

foundations to improve during the 2012-2013 school year. See id. at 31.

56. Specifically, on April 2, 2012, the DOE determined to keep seven of thoseschools open because, despite being identified by the state as PLA schools, the overall letter

grade on their most recent city Progress Reports was an A or B, and, in the DOEs judgment,


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these schools are capable of continuing improvement with less intensive interventions. See id. at

32.

57. On April 26, 2012, the DOE announced that another two schools wouldremain open, because the schools had received positive marks on their city Progress Reports (a

B letter grade) and their Quality Reviews (a rating of Proficient or higher) in the last two

years, demonstrated evidence of strong leadership, and featured significant community support.

See id. at 33.

58. These determinations were reached after careful review, including publichearings, school visits from DOE leadership, and other methods of ongoing evaluation that

allowed the DOE to identify positive signs of improvement in the schools performance and

quality of instruction. See id. at 34.

59. Continued consideration of the remaining 24 PLA schools demonstratedthat more comprehensive action was needed. Accordingly, these are the schools that the DOE

will close and replace with new schools. See id.

60. One example among the 24 schools that the DOE determined to close andreplace with a new school is the Bread and Roses Integrated Arts High School (Bread and

Roses). See id. at 27. Though Bread and Roses 2009-2010 performance was weak and

showed a decline over 2008-2009 in a number of areas, there were some indicators of the

potential for improved performance. See id. Thus, the DOE determined that the Restart model,

a relatively less intensive intervention, was the best fit for the school when it had decided to

assign the school that model. See id. The SED approved the application, which made Bread and

Roses eligible for up to $850,510.00 in SIG funding per year for three school years. See id.

However, as noted above, Bread and Roses continuing eligibility for the Restart model was


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conditioned upon the DOE and the UFT agreeing to implement a new teacher evaluation system

by January 1, 2012. See id.

61. Bread and Roses performance continued to worsen during the 2010-2011school year, as shown by its most recent Progress Report, issued in October 2011. See id. at

28. Both the schools graduation rate and a number of indicators measuring students progress

towards graduation declined. See id This data showed that the school was struggling even more

than the DOE had thought at the time it chose the Restart model for the school. See id. Based

on this most recent data, the DOE believes that students at Bread and Roses will be better served

by implementation of a more intensive intervention. See id. Thus, the DOE now plans to close

Bread and Roses and replace it with a new school, Peoples School of the Arts, which will

incorporate the strongest elements of Bread and Roses, while also allowing new staff and

structural changes to be put in place. See id.

62. For example, to allow for academic and enrichment experiences that willenhance student learning around the theme of community service, People's School of the Arts

plans to extend the school day for all students (subject to agreement by the unions pursuant to the

School-Based Option process detailed the UFT CBA (Ex. 1), Article 8B). See Sternberg Aff.

29. The extended day will include nine periods (currently tenth through twelfth graders have

eight 45-minute periods), flexible teacher and student schedules based on student needs, and

extended learning time opportunities through arts and community internships, block periods for


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designated subjects, and small learning communities. This is just one of the many new elements

planned for Peoples School of the Arts that will replace Bread and Roses.1

See id.

63. Bread and Roses is an archetypal example of how the specific selection ofschools, refined through continued analysis of how best to effectuate improvement, resulted in

the DOEs final determination to close 24 struggling schools and immediately re-open new

schools in their buildings. See id. at 30.

64. On April 26, 2012, the Panel for Educational Policy (PEP) authorizedthe DOE to close the 24 above-mentioned PLA schools, including Bread and Roses. See id. at

3.

65. The closure of these 24 schools is now subject to the approval of the SED,pursuant to the State regulations concerning its operation. See 8 N.Y.C.R.R. 100.2(p).

66. The DOE intends to implement new instructional and structural reforms atthese 24 schools that will include new missions and visions for student success and faculty

excellence. See Sternberg Aff. 4-5. These schools will, among other things, adopt new

curricula and instructional models; offer more academic supports for serving high-needs

students; and develop rigorous, school-specific strategies to measure and screen prospective staff

(including current staff who apply to work at the new schools). See id.

67. Furthermore, while Petitioners characterize the 24 closings as shams andmerely technical, citing to a single email sent by Deputy Chancellor Sternberg on January 12,

2012, this characterization is a misreading of the email and does not fairly reflect the substance

and intent of the email. See Pet., Ex. D; Sternberg Aff. 36. The sentence that Petitioners

1 A lengthy description of our analysis is contained in the Educational Impact Statement(EIS) for Bread and Roses. The DOE issues an EIS when significant changes in schoolutilization are proposed. The Court is respectfully referred to pages 5-8 of the EIS, a copy ofwhich is annexed as Exhibit 4 to the Verified Answer, in the event the Court wishes a moredetailed analysis of this schools shortcomings and our attendant determinations.


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selectively cite actually states in full that [a]s a technical matter, conversion to the Turnaround

model will require that the DOE close your school at the end of the school year and will work

with you to open a new school with a new DBN in its place, effective July 1, 2012. See Pet.,

Ex. D. The word technical as used in the email refers to the technical requirements of the

Turnaround model, not any purported technical nature of the closing. See Sternberg Aff. 39.

Additionally, the subject matter of this email was not about closures at all. Rather, the purpose

was to explain to those principals who had lost significant SIG funding that there were

alternative ways to regain that funding under the Turnaround model. See id. at 37-39.

Petitioners have cherry-picked this word, technical, and used it to improperly suggest that the

DOE does not consider the closings as a legitimate act of discretion. See id. at 40.

D. Staffing of New Schools Pursuant to Collective Bargaining Agreements68. Pursuant to Article 18D of the UFT CBA, when a new school is created to

replace a school that is being phased out or closed, a Personnel Committee is created to screen

the teaching applicants for the new school. See Ex. 1, Art. 18D; Affirmation of David Brodsky,

Director of the DOEs Office of Labor Relations, (Brodsky Aff.) 4. Personnel Committee

membership, at a minimum, consists of two representatives appointed by the UFT President, two

representatives appointed by the superintendent (or the Chancellor), and the principal of the new

school. See Ex. 1, Art. 18D; Brodsky Aff. 4.

69. Teachers in the school which will be directly replaced by the new schoolhave the right to apply and be considered for positions at the new school. See Ex. 1, Art. 18D;

Brodsky Aff. 5. If sufficient numbers of displaced staff apply, at least 50% of the new schools

pedagogical positions must be selected by the Personnel Committee from among the

appropriately licensed, most senior applicants from the closing school who meet the new

schools qualifications. See id.


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70. Any remaining teacher vacancies will then be filled by the PersonnelCommittee from applicants from the existing school, internal transfers from other schools or by

external candidates. See Ex. 1, Art. 18D; Brodsky Aff. at 6.

71. Using the process for hiring instructional staff for a new school, the DOEhistorically has demonstrated an ability to hire high-quality teaching staff for new schools, while

rejecting staff from the closing schools who do not meet the qualifications necessary to teach at

the new school. See Sternberg Aff. at 4.

72. It is important to note that no teacher will be laid off as a result of thisprocess. See Ex. 1, Art. 14F; Brodsky Aff. 7. Pursuant to UFT CBA, teachers without a

regular teaching position are placed in our Absent Teacher Reserve (ATR) pool. See id.

These teachers continue to receive their full salaries and benefits, and may seek positions at other

schools as they become available. See id. Thus, members of the UFT will suffer no adverse

employment consequences as a result of our urgently needed remedial program. See id.

73. Members of the Council of School Supervisors and Administrators(CSA) do not have an equivalent of the 18D process in their CBA. See Brodsky Aff. 8.

However, supervisory and administrative staff (including principals and assistant principals) at

the schools the DOE intends to close this summer will also avoid layoffs. See id. Pursuant to

Article VII-L of the CBA between the DOE and the CSA, supervisory and administrative staff at

the closed schools will be excessed.. See id.

74. An excessed supervisor is not terminated, as he or she retains his or hersalary and benefits. See id. Furthermore, under Article VII-Ls provisions, an excessed

supervisor will be assigned to an alternative supervisory position in accordance with the terms

of the DOEs CBA with the CSA.. See Ex. 2, Art. VII-L; Brodsky Aff. 8. As such, no


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supervisory or administrative staff will suffer adverse employment consequences as a result of

closing schools. See id.

E. Past Practice of Turnaround75. The process of closing a school and directly replacing it with a new school

in the same building has been implemented several times in the past without complaint on the

unions part. See Brodsky Aff. 12-14.

76. In fact, the DOE has closed schools in the recent past under virtually thesame circumstances, without objection from the unions. See id.

77. Most recently, in 2008, the DOE closed three schools that were directlyreplaced by new schools in the same buildings. See id. at 12. The Hunts Point School is

currently located at 730 Bryant Avenue in the Bronx, in a building which previously housed the

School for Theater, Arts and Research. See id. Additionally, the Young Leaders Elementary

School, which is located at 468 East 140 Street in the Bronx, opened in a building which had

previously housed the Mott Haven Village School. See id. Finally, the Performance School,

located at 750 Concourse Village West in the Bronx, was preceded in the same building by the

Benjamin Banneker School. See id. In all three of these cases, the new schools opened in the

old schools buildings one day after the old schools closed, and served virtually the same student

population. See id. For two of those three schools, the principals were replaced. See id. In all

three schools, both the DOE and the UFT adhered to the hiring process laid out in Article 18D.

See id. The CSA did not file any grievances in connection with these three closures. See id. at

14.

78. The SED approved the closures of all three schools. A copy of the SEDslist of schools closed for 2008-09, which includes the three subject schools, is annexed hereto as

Exhibit 5.


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79. To hire teaching staff at the above-listed schools, the UFT fullycooperated and participated in the Article 18D hiring process. See id. at 14. There are no

material differences between these 2008 closures and the 24 closures that DOE is now

undertaking. See id. at 15.

80. It is apparent from the above that the closing of struggling schools in orderto quickly and effectively replace them with new ones is not a sham, but rather reflects a

legitimate and appropriate exercise of the DOEs discretion to improve the educational

opportunities for more than 30,000 children who will attend the new schools next year. See id. at

16.

F. Administrative Grievance and Arbitration Processes81. Both the UFT and the CSA CBAs provide mandatory administrative

grievance and arbitration processes for disputes over the application of provisions within the

CBAs. See Ex. 1, Art. 22; Ex. 2, Art. X.

82. When, as here, a grievance is filed on behalf of either union as a whole,rather than on behalf of individual employees, it is initiated as a Step II grievance, meaning it

is directly heard by the DOE Chancellor. See id.; Brodsky Aff. 18.

83. On or about April 30, 2012, both the UFT and the CSA filed nearlyidentical grievances, alleging that the DOE had initiated sham closings of schools that would

result in the improper reassignment of staff. See Brodsky Aff. 19.

84. Additionally, the UFT and the CSA requested that their grievances bemerged and heard together at the arbitration level, should their grievances be arbitrable. See id.

at 20.


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85. The Office of Labor Relations and Collective Bargaining (theChancellors designee) held Step II hearings for both the UFT and the CSA on May 4, 2012.

See id. at 21.

86. On May 11, 2012, the Chancellor issued decisions that denied Petitionersgrievances. See id. at 22. Copies of these decisions are annexed hereto as Exhibits 6 (UFT

Step II Decision) and 7 (CSA Step II Decision).

87. The Chancellor determined that the DOEs authority to close a school isset forth and governed by the N.Y. Education Law and, as such, is not proper for adjudication

through the grievance and arbitration processes set forth in the parties respective CBAs. See

See id. at 23; Exhs. 6 & 7. Notably, the definition of a PLA school closing is not within

either the UFT or the CSA CBAs, as this is a determination that is ultimately within the sole

purview of the SED, pursuant to N.Y. Education Law Article 52-A 2590-g, 2590-h, and SED

regulations. See 8 N.Y.C.R.R. 100.2(p); Brodsky Aff. 24.

88. Furthermore, the Chancellor noted that even if Petitioners grievanceswere arbitrable, they failed to demonstrate a violation of staff excessing and hiring processes as

the staffing processes for new schools have not yet commenced. See Brodsky Aff. 25; Exhs. 6

& 7.

89. Additionally, when the excessing and hiring processes do begin for thenew schools, the DOE intends to act as it has in the pastin full compliance with applicable

provisions within the parties CBAs. See Brodsky Aff. 26; Exhs. 6 & 7.

90. The Chancellor acknowledged Petitioners past participation in staffingprocesses for schools that were closed and replaced in the same manner that will occur for the 24


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schools at issue, and determined that this was convincing evidence that Petitioners, in actuality,

view these closures as valid. See Brodsky Aff. 27; Exhs. 6 & 7.

91. To the extent Petitioners characterized the 24 closings as sham closings,the Chancellor explained that the new schools will undergo significant structural and

programmatic changes, which are explained in great detail in the Educational Impact Statements.

See Brodsky Aff. 28; Exhs. 6 & 7.

92. Finally, the Chancellor denied Petitioners request to have their grievancesmerged as no such right exists in either CBA and, moreover, such a merger would be unfairly

prejudicial to the DOE. See Brodsky Aff. 29; Exhs. 6 & 7.

93. As indicated in the Verified Petition, both the UFT and the CSA areseeking to appeal the Chancellors decisions at arbitration. See Pet.

94. To the extent the issues described above are within an arbitratorsjurisdictionwhich they are notRespondents will seek Petitioners cooperation in asking for

arbitration hearings to be scheduled on an expedited basis and for the arbitrators to issue prompt

decisions well in advance of the thirty-day period of time mandated for such a decision under the

parties CBAs. See Brodsky Aff. 30.

95. Should these grievances proceed to arbitration, an arbitrator under the termsof Petitioners unions CBAs has the authority to order the DOE reverse any decisions and actions

that were taken in violation of the CBAs, should the arbitrator rule in favor of the Petitioners.

See Ex. 1, Art. 22C; Ex. 2, Art. X-C.

G. Petitioners Are Barred From Seeking a Stay Pending Arbitration96. Should Petitioners appeals be arbitrable, it is imperative to note that the

express terms of Petitioners CBAs bar them from seeking a stay pending arbitrationthe

language regarding grievances and the availability of provisional relief is effectively the same:


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The filing or pendency of any grievance under theprovisions of this Article shall in no way operate toimpede, delay or interfere with the right of the[DOE] to take the action complained of, subject,however, to the final decision on the grievance.

See Ex. 1. at Art. 22D(1); Ex. 2 at Art. X-D(1).

H. The Instant Proceeding97. Notwithstanding the fact that Petitioners are barred from seeking a stay

pending arbitration, they commenced the instant proceeding by Order to Show Cause on May 7,

2012, pursuant to Article 75 of the N.Y. Civil Practice Law and Rules, seeking an injunction in

aid of arbitration that would prohibit the DOE from removing staff from the 24 schools at issue

and hiring new staff at the replacement schools. See Pet.

98. On May 8, 2012, the parties consented to not make or furthercommunicate any hiring decisions in connection with the 24 subject schools, with limited

exceptions, pending the May 16, 2012 oral argument scheduled on this matter.

I. Respondents Opposition to a Continued Stay99. The injunction sought by Petitioners will significantly undermine the

DOEs ability to effectuate change at the 24 schools at issue. See Brodsky Aff. 34. In

particular, the DOE will lose well-qualified candidates who will receive offers from other

schools while waiting for the injunction to be lifted, and it will delay the DOEs ability to get the

new schools fully staffed and up and running in time for the first day of classes in September of

2012. See id.

AS AND FOR A FIRST DEFENSE,

RESPONDENTS RESPECTFULLY ALLEGE:

100. The Verified Petition fails to state a cause of action.


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AS AND FOR A SECOND DEFENSE,


101. The CBA provisions at issue explicitly provide that any action by the DOEthat Petitioners wish to challenge as a violation of their agreements should not be enjoined while

those challenges are pending.

AS AND FOR A THIRD DEFENSE,


102. Because the award to which the Petitioners may be entitled (if theunderlying issues are, in fact, arbitrable) will be not rendered ineffectual if injunctive relief is

denied to them in this proceeding, Petitioners are not entitled to that relief.

AS AND FOR A FOURTH DEFENSE,


103. Because they fail to demonstrate a likelihood of success on the merits, anythreat of irreparable harm, or a balance of the equities that favors them, Petitioners are not

entitled to preliminary injunctive relief.

(A conclusion and signature page follows.)


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department of education legal response – uft/csa lawsuit

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