verified petition - ross charter school

8/8/2019 Verified Petition - Ross Charter School

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TO THE COM MISSIONER OF EDUCATION

STATE OF NEW YORKSTATE EDUCATION DEPARTMENT

ROSS GLOBAL ACADEMY CHARTERSCHOOL,

Petitioner,

-against-OTICE OF PETITION

NEW YORK CITY DEPARTMENT OFEDUC ATION, and JOEL I. KLEIN, asChancellor of the New York City Departmentof Education,

Respondent.

PLEASE TA KE NO TICE that you are hereby required to appear in this appeal and to

answer the allegations contained in the petition. Your answer m ust conform to the provisions of

the regulations of the Comm issioner of Education relating to appeals before the Com missioner of

Education, copies of which are available from the Office of Counsel, New York State Education

Department, State Education Building, Albany, New York 12234.

PLEASE TAKE FURTH ER NO TICE that if an answer is not served and filed in

accorda nce with the provisions of such rules, the statements contained in the petition will be

deemed to be true statements, and a decision will be rendered thereon by the commissioner.

PLEASE TAK E FURTHER NOTICE that such rules require that an answer to the

petition must be served up on the petitioner, or if the petitioner be rep resented by cou nsel, upon

the counsel, within 20 days after service of the appeal, and that a cop y of such answ er must,

within five days after such service, be filed with the Office of Counse l, New York Sta te

Education Department, State Education B uilding, Albany, New York 12234.



Dated: December 29, 2010

TO THE COM MISSIONER OF EDUCATION

PLEASE TAKE FURTH ER NO TICE that the within petition contains an application for

a stay order, pursuant to the regulations of the Commissioner of Education (8 N.Y.C.R.R.)

§ 276.1. Affidavits in opposition to the application for a stay must be served on all other parties

and filed with the Office of C ounsel within three business da ys after service of the petition.

WHITESTERMALP

Kevin P. Q uinn, Esq.John J. Henry, Esq.Attorneys for Petitioner Ross Global Academy

Charter School

One Comm erce PlazaAlbany, New York 12260(518) 487-7600

HUGHES HUBBARD & REED LLPEdwa rd J.M. Little, Esq.Gabrielle Y. Vazquez, Esq.

Attorneys for Petitioner Ross Global AcademyCharter SchoolOne B attery Park PlazaNew York, New York 10004-1482(212) 837-6000

To :ichael A. CardozoCorporation Counsel for the C ity of New York

Attorney for Respondents100 Church Street

New York, New York 10007

(212) 788-0303

wAl 2500 \I2502 VonewaRpleadingsknotice of peti t ion 12.10.10.docx

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TO THE COMMISSIONER OF EDUCATION

STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

ROSS GLOBAL ACADEMY CHARTER

SCHOOL,

Petitioner,

-against-ERIFIED PETITION

NEW YORK CITY DEPARTMENT OF

EDUCATION, and JOEL I KLEIN, as

Chancellor of the New York City Department

of Education,

Respondents

Petitioner Ross Global Academy Charter School ("RGA"), by its attorneys Whiteman

Osten-Ian & Hanna LLP and Hughes Hubbard & Reed LLP, alleges upon information and belief,

except where otherwise indicated, as follows:

PRELIMINARY STATEMENT

I This is an appeal by RGA from the recommendation of the New York City

Department of Education ("DOE"), by way of a report issued by its Chancellor Joel I. Klein

("Chancellor Klein"), that the school's application for a renewal of its charter be denied and that

it be closed (the "Report").

2 The DOE's staff committed profound violations during the renewal process in its

repeated and deliberate failures to comply with the requirements of the Education Law and its

own published procedures set forth in Charter Renewal Handbook 2010 ("DOE Handbook"),

including:




(a ) the staff's failure to provide RCA with a "draft report" following the

submission of Part I of RCA's Renewal Application (the Retrospective) so that RCA

would be informed of any issues regarding its renewal and have the opportunity to

respond;

(b ) the staff's failure to provide RCA with a "preliminary decision" of the

Chancellor after submission of Part II of the Application (the Prospective) so that RCA

would, again, be on notice as to any issues that could be addressed before the public

hearing;

(c ) the staff's failure to conduct a meaningful public hearing, given the fact that

it had repeatedly failed to advise RCA of any issues regarding its renewal or even the

possibility that its charter would not be renewed, thus depriving its Board, administration,

faculty, parents and students of the opportunity to be heard;

(d ) the staffs failure to request "clarifications" regarding the Prospective part of

RCA's application or to ask for any response to the staff's alleged concerns about

renewing RCA's charter;

(e ) the staff's violation of its own Code of Conduct in issuing a press release

announcing the closing of RCA (and leaking the same information to hostile third

parties) before even providing RCA with a copy of the Chancellor's Report; and

(f ) the refusal of the Chancellor to provide RCA sufficient time to respond to

DOE's Report before the issuance of a press release to the public and notice to the

parents of the children served by RCA that the school was being shut down.

See Ross Affid., Ex. 4, at 6. As a consequence, RCA and its community were kept in the dark

about DOE's review throughout the entire 5-month process, were disabled from responding to

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the DOE's concerns at any point, and were understandably shocked with the sudden and

premature publication of DOE's recommendation that the school be shut down

3. In addition, the DOE's report is riddled with conclusory statements not based in

evidence and had the DOE followed its required process, it would have had the proper

information in front of them to make an appropriate decision on renewal with regard to RGA

4. More importantly, the Chancellor's recommendation against giving any type of

renewal -- not even a "short-term renewal" -- is plainly contradicted by DOE's own standards for

renewal. The principal reason given in support of the Report's recommendation is that RGA

finished at the bottom of the list of charter schools for last year. But that ignores RGA's history:

it opened with an admirable first year (which was not graded), it improved during its second year

(with a B grade), and it improved even more in its third year (with an A grade). In

recommending against renewing RGA's charter, the Report relies principally on the low test

scores for last year -- the school's one difficult year out of five -- resulting in RGA being given

an F grade. However, it significantly omits the fact that the F grade was adjusted to a C grade in

accordance with DOE's policy to drop a school's score only two levels due to the higher

standards imposed last year on the grading of the students' tests. Since RGA's grade for the

previous year was an A, its grade for last year was a C. Thus, the average of its grades for the

past three years -- a B, an A and a C, is a 13: ` Certainly, not a grade that should result in non-

renewal, especially with the flexibility that is required by the DOE's own standards and past

practice.

Sign i f ican t ly , as no ted be low, there are m any reasons fo r the low tes t scores tha t year , ch ie f amon g them the fac ttha t 49% o f the te s t ta ke r s we r e n e w to the scho o l , d ue to the a d d i t io n o f n e w g r a d e s a n d in f lux o f n e w s tud e n tsThus, a lmost ha l f o f the chi ld ren tak ing the tes ts had on ly been a t the schoo l fo r one year Had the DOE fo l lowed i tsRen ewa l p rac t ices and prov ided R GA the i r r ight fu l oppor tun ity to comm ent, it would have been ab le to take thesefacts under considerat ion

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5. Both the Education Law and DOE 's own declared standards require it to evaluate

a school's past three years -- not one year -- in deciding on a school's application for renewal

Education Law § 2855(I)(a); Ross Affid., Ex. 4, at 3. There were admittedly serious problems

last year, culminating in low test scores at the end of the year However, these were caused by

the school's fourth physical move 2 (as a result of DOE's inability to provide a single, appropriate

facility for the school), the influx of many new students and the addition of three new grades

(kindergarten, 4th and 5th), and a new principal who was overwhelmed with these extraordinary

burdens of physically moving, recruiting faculty and enrolling students for three new grades and

decided to resign. These unique circumstances, especially in a first charter period which is to be

accorded with flexibility (see Ross Affid., Ex. 4, at 7), are not sufficient reasons to shut the

school down. Even if a school experiences a bad year, it still qualifies for a "Short-Term

Renewal" in accordance with DOE's own clearly defined standards which afford schools in the

first charter period more flexibility in renewal. See Ross Affid., Ex. 4, at 7. RGA's present

situation more than justifies such a renewal in accordance with the governing statute and

administrative procedure.

6. The other principal criteria by"which a charter school is to be evaluated, besides

academic success, are the school's organizational viability and its compliance with DOE rules

and regulations. There is even less reason to deny renewal for RGA on these grounds, given its

unusually strong support from the Ross Institute and other donors, its governance by an

outstanding Board of Trustees, and its collaboration with NYU's Steinhardt School of Culture,

2 This is more change s in locat ion than an y other charter school in the decade s ince the Cha rter School was ena cted

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Education & Human Development ("Steinhardt School"), as well as its good record of

compliance 3

7. As DOE's staff learned during the review process, and more particularly during

their site visits, despite whatever concerns they had about last year, RCA has made a dramatic

turnaround led by an experienced principal and vice-principal dedicated to a professional

administration of the school, many new teachers committed to stay, stronger involvement by

RCA's Institutional Partner, the Ross Institute, a more disciplined environment after last year's

disruption, and a motivated student body with the backing of enthusiastic PTA and parents who

desperately want the education offered by RGA for their children

THE PARTIES

8, Petitioner RCA is a charter school organized and incorporated pursuant to Article

56 of the New York Education Law. It is located on the Lower East Side, at 420 East 12 t h Street,

New York, New York, It is open to students from all of New York City, and its student body

includes children from all five boroughs. Thus, many of them have to commute long distances

on public transit to attend RCA, and they do so eagerly and voluntarily. Presently, 95% of the

students are minority, 67% of them are eligible for free lunch programs based on household

incomes, and 16% of them are classified as special education students. There are actually 23

students who come from homeless families who attend RCA.

The f ina l vers ion o f the DOE Rep or t pers is ts in suggest ing tha t RG A w as g iven "no t ices o f de f ic iency and le t te rso f concern" Ro ss A f f i d , Ex 1 , a t 9 How ever , the DO E w i thd rew , as no t ed i n a f oo t no t e o f the DO E repor t , theNot ice of De f ic iency, bu t , am azingly , DOE st i ll has th is le t ter in i t s Repo r t The le t ter o f concern that w as issuedconc erned issues that were n ot substant ia l and we re qu ick ly resolved In a ddi t ion, the le t ter issued by the StateEducat ion Depa r tment was respond ed by RC A on June 30, 2009 h ighl ight ing the inaccura te s ta tements , but RCAdid not again have a response f rom the Depa r tment A copy O f the June 30, 2009 response is a t tached as Exh ib i t I

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9. Respondent New York City Department of Education ("DOE") is a corporation

and operates a public school district within the City of New York pursuant to Article 52-A of the

Education Law.

10. Respondent Joel 1. Klein is presently the Chancellor of the New York City

Department of Education and is vested with the powers and responsibilities set forth in

Education Law § 2590-h.' t In addition, Chancellor Klein is vested with the power to authorize

and recommend approval of charter school proposals to the Board of Regents pursuant to Article

56 of the Education Law.

JURISDICTION

11, The Commissioner of Education has jurisdiction over this appeal pursuant to

Education Law § 310(2) and (7). The Commissioner is required to "examine and decide" an

appeal unless it falls within the subject areas excluded in section 311 (3). Id. This appeal does

not fall within those areas.

11ducation Law § 2590-h(1) provides that the Chancellor is "the superintendent of

schools and chief executive officer for the [New York City school] district."

1.3. Education Law § 2851(3)(a) further provides that, with respect to submission of

an application for a renewal charter, the Chancellor, as the superintendent of schools and chief

executive officer for the city school district, is the charter entity.

STATEMENT OF FACTS

The Founding of the School

Chancellor Klein is resigning effective December 31, 2010 and will be replaced by Cathie Black, who will be

substituted as a party respondent in this case

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14. In 2005, Chancellor Klein recommended approval to the Board of Regents for the

incorporation of RCA as a charter school The Board of Regents approved that recommendation

and incorporated RCA on January 16, 2006.

15he term of the original charter was for five years from the date of incorporation

and is scheduled to expire, unless renewed, on January 16, 2011.

RGA's Philosophy & Curriculum

16.CA is a public school adaptation of the Ross Model and Ross Curriculum that

were developed at the Ross School (East Hampton, NY) through a collaborative design process

involving teachers and scholars over the past 20 years. In the spirit of public-private

collaboration, the Ross School serves as a lab school for the Ross Network, an internationally

recognized group of schools that implement the core design principals of the Ross Model in their

local settings. The Ross School was chartered by New York State in 1994, was accredited by

Middle States Association in 2005 as the first school to receive an International Accreditation,

and recently received a renewal of accreditation in 2010. Adaptation of the Ross Model and

Curriculum requires additional skills and commitments from teachers as they design structures,

systems, and experiences that not only address state and city requirements but also the essential

elements of the Ross Model Teachers and Administrators at RGA have implemented an

innovative curriculum and academic program designed to engage students in a deep

understanding and rigorous application of knowledge and skills in all major content areas of

study through interdisciplinary instrtiction using cultural and historical narratives, the arts, and an

integrated approach to mathematics and science

17he RCA curriculum seeks to develop global understanding in its students and

respect for self and others, in addition to providing a core curriculum in math, English language

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arts, science, and social studies. The curriculum highlights project-based learning and problem

solving through interdisciplinary projects, which also provide the students with many

opportunities to interact and work together. The academic program and approach to curriculum,

instruction, and assessment have proven successful over the school's first four years of

operation? The curriculum also provides RCA students with many embedded opportunities for

cultural enrichment, including programs devoted to Chinese language, wellness and health,

technology and media, and the arts.

18 RCA develops and fosters student engagement in learning through rich curricular

experiences, individualized attention for all students, meaningful infusion of media and

technology, and performance-based assessment through which the students' work becomes part

of the curriculum and learning experiences, in addition to providing evidence of how well

students are meeting learning goals and performance targets. To enable individualized attention

for all students, RCA provides small class sizes of 20 to 24 students and a longer school day that

runs from 7:45 a.m. to 4:30 p.m., with early dismissal on Fridays. RCA offers inclusion and

support programs for new learners of the English language and for students with special learning

needs. Indeed, as indicated above, 16% of RCA's students are "special needs" students with

Individualized Education Plans (IEPs). RCA serves students with low to severe intellectual

disabilities, providing services for students with classifications of LD (Learning Disability)

Speech and Language Impairment, MR (Mental Retardation), ED (Emotional Disturbance), ASD

(Autism), Hearing Impairment, OH! (Other Health Impairment), and exceptionally gifted. For

example, RCA has one student classified with Autism who is gifted in math and studying college

5 It i s notab le that ROA has recent ly p laced 1 7% of i ts graduates in the e l i te spec ia l ized h igh schools in the C i ty, thehighest percentage of any charter school

8




level math at RGA. Special Education programs at RCA consists of General Education with

Related Services: Speech and Language, Occupational Therapy, Physical Therapy, Counseling,

SETSS, and CTT classes. The goal of the highly qualified special education staff is to put the

student first and give him/her the support that is necessary for the student to thrive in the

inclusion learning environment RCA Special Educators and Learning Specialists collaborate

with each other and the core teachers to meet the individual strengths and weaknesses of all RCA

students whom they serve by constantly monitoring the student growth against their IEP goals

and other performance targets.

19. Additionally, RGA provides professional development for all RGA faculty in

support of implementing the Ross Model and Ross Curriculum and in educational practices that

meet the needs of both RGA's students and teachers. Attendance at the Ross Institute Summer

Academy, an annual conference held every August in East Hampton, New York, is a

foundational aspect of annual RCA professional development Each year, leadership and faculty

from Ross Network Schools come together at the Ross School to engage in professional

development, stimulating dialogue, and an exchange of ideas and practices. The conference

involves lectures, workshops, and seminars with esteemed scholars and specialists in the field of

education. Topics as wide-ranging as neuroscience, immigration and globalization, teaching for

differentiation, Chaos theory and systems thinking, environmental awareness, ecological literacy,

and other topics relevant to forward-thinking educators are included Scholars such as Antonio

Damasio (USC), Kurt Fischer (Harvard University), Howard Gardner (Harvard University),

Pedro Noguera (NYU), Jeremy Rifkin (Foundation on Economic Trends), Carola Suarez-Orozco

(NYU), Marcelo Suarez-Orozco (NYU), and Mary Helen Immordino-Yang (USC), as well as

Ross Founding Mentors, William Irwin Thompson (Lindisfarne Institute) and Ralph Abraham

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(UC Santa Cruz) have all contributed to the professional intellectual and practical development

of Ross Network faculty. In addition, RGA works closely with the Ross Institute, the Steinhardt

School of Education at NYU, and other well-known educational consultants to deliver

comprehensive, ongoing professional learning that addresses topics such as Responsive

Classroom, data-driven instruction, and educational technology for its teachers and

administration.

20. Most importantly, RCA is committed to developing and supporting a disciplined

and nurturing school culture based on Ross Core Values in which all students can succeed.

Among the strengths of the RGA School Culture is that it draws from the diverse backgrounds of

the children, their families, and the surrounding community and promotes student involvement in

the school activities such as student leadership, service learning, and enrichment programs.

The School's Challenges in Finding a Permanent Home

21. Under its agreement with RCA, DOE was to provide a location for the school so

that it would have a stable and satisfactory environment in which to educate the children

entrusted to its care. Over the past five years, RCA has had to move the school three times and

put all of its property (books, files, furniture, artwork, laboratory equipment, supplies,

computers, printers, etc.) in storage between these moves, requiring repeated "start-ups" at the

beginning of each school year. This is more than any other charter school in the over ten year

history of the establishment of charter schools in New York. These changes in location were

though no fault of RCA, but the DOE, making the challenge to perform as a new school that

much more difficult. Thus:

(a) DOE first arranged for RCA to share a building with Public School M539,

also known as the "Nest School," despite the fact, as DOE well knew, that the Parent-

10




Teacher Association ("PTA") of that school was violently opposed to sharing space with

a charter school. The NEST PTA did, in fact, eventually sue DOE in a CPLR Article 78

proceeding to block the arrangement See I I /latter of Pa rent Teache r Association of

Public School M5 39 a/k/a NES T v Klein, Index No. 106363-2006, Sup. Ct., N.Y. County

(Lippman, J.). RGA was subsequently brought into the lawsuit as a necessary party and

had to incur legal fees of over $600,000 in a vain effort to open at that location, DOE

settled the case by reversing the arrangement and giving RCA alternative space in the

basement of its own offices at the Tweed Courthouse, at 52 Chambers Street in

Manhattan — in mid August, resulting in undue and unexpected financial drain and stress

on administration and staff that where already consumed with enrolling four new grades

in eight classrooms at one time.

(b ) RCA finally opened for its first day of classes on September 6, 2006 after

spending substantial money and effort in converting the basement in the Tweed building

to classrooms. It quickly outgrew the space as its student body expanded over the next

two years. The only alternative then provided by DOE was to give RCA additional,

separate space in an office building on East 25 1 / ' Street in Manhattan, over twenty blocks

away. As of September of 2008, RCA was required to split its school, with Grades K-3

remaining at the Tweed building and Grades 6-8 relocated at East 25' 1 ' Street. A new

RGA principal had to oversee both schools which added expense and created additional

pressure on administration and staff

(c ) It was not until the summer of 2009, RCA's fourth year of operation, that

DOE finally provided it with a building large enough to accommodate the whole K-8

student body. That building was, however, in total disrepair and had to be renovated

II




within the space of four weeks — at a cost of over $3,500,000, which was paid by the

Ross Institute and other donors — to make it ready for classes to begin in September of

that year.

The repeated moves to new locations caused tremendous instability for the students, their

parents, the teachers, and the administration. In the process, the school lost students, many of

whom had to travel long distances by public transit from the five boroughs in which they live, as

well as faculty. It was hard enough to successfully bring a start-up organization into one

location.

22. In addition to the heavy legal costs incurred in the initial litigation and in the

repeated physical moves, the Ross Institute, the RGA Board and other donors have willingly paid

for many other costs incurred in operating RCA over the past five years. To date, they have

contributed a total of over $8,000,000 in charitable contributions above and beyond the funding

provided by DOE This remarkable financial contribution, as well as the extraordinary efforts

made by the school's founder, its board of directors, its administration and teachers would be lost

if DOE's arbitrary and capricious recommendation not to renew RCA's charter is permitted to

stand.

DOE's Repeated Violations of Its Own Procedures During RCA's Renewal Process

23. In February 2010, almost a year before its 5-year charter was set to expire, RCA

began the renewal process, and DOE placed it on its so-called "fast-track" schedule.

24. The renewal process is governed by DOE's own standards and procedures, as set

out in the DOE Handbook. In accordance with the time schedule on page 6 of the Handbook,

RCA submitted the first part of its renewal application, the "Retrospective Application" or "Part

1" on its due date, May 3, 2010.

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25. According to the DOE Handbook, once a charter school has submitted its

Retrospective Application, dealing with its past history, DOE is supposed to provide it with a

"draft report" to the school so that it can be apprised of DOE's findings and have an opportunity

to respond:

Based on the application, on-site visits, previous oversight findings and other

information, CSO [DOE 's Charter School Office] prepares a draft report of its

findings and shares it with the school CSO may also request additional

information from the school.

The school has the opportunity to review the draji report for factual errors and

provide comment within one week of its receipt of CSO draft report.

Ross Affid., Ex. 4, at 6 (emphasis added). The "draft report" that the DOE staff was supposed to

prepare was due on July 16, 2010. To RGA's knowledge, it was never prepared by the CSO

staff at DOE or, if it was, it was not disclosed for review and comment by the school as required

by the DOE Handbook.

26. Although RGA's Board and administration never received feedback from DOE on

Part 1 of its application, either by way of a draft report or otherwise, it followed the schedule and

submitted the second part of the renewal application, the "Prospective Application" or "Part II")

on its due date, July 16, 2010.

27. According to the DOE Handbook, once a charter school has submitted its

Prospective Application, the Chancellor is SUppOsed to make a "preliminary decision as to

whether the charter is renewed, the term of the nevi , charter, and cmy renewal conditions." Ross

Affid., Ex. 4, at 6 (emphasis added). The preliminary decision was due on July 30, 2010. To

RCA's knowledge, it was never made or, if it was, it was not disclosed to the school.

28. DOE's staff was obligated to conduct a "renewal visit" at the school for two days

"to verify and augment the information presented by the school in its written application." Id.

1 3




The obvious purpose of the visit was to enable the DOE staff to observe at first hand the current

conditions at the school. This site visit was originally scheduled for sometime between May18

and June 18, 2010 By mutual agreement between RCA and the DOE staff, it was deferred to so

that it would not interfere with testing that was occurring at the school during the spring. In

addition, due to the admitted difficulties the school was then experiencing with its transition to

the newly renovated building on 12th Street, the addition of many new students, and a principal

who was overwhelmed and tendered her resignation, it was later agreed that the early fall would

be a better time for the visit in order to evaluate how the school had been stabilized with the new

leadership.

The Positive Renewal Site Visit

29 The DOE staff did not visit the School until November 3 and 4, 2010. At the

conclusion of their visit, Nancy Meakem and her team sat down with the Principal Cristina

Alvarez and the Vice Principal Peter Doran and debriefed them on their findings during their

"exit interview." As recorded in a contemporaneous RCA memo, Meakem said the DOE staff

found:

Strengths -

1) Great improvement with teachers, students, parents, and staff -- given place

where we started.

a Night and day difference

b. Heard it From every key player in this community

2) Order in place.

3) Class expectations high.

4) Consistently saw evidence of teaching and learning. Clear agendas and

objectives

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5) Resources evident -- SMARTboards, laptops. The building itself is well-

outfitted

6) Ross culture is evident in conversation with community.

7) Arts integration -- Alignment with art classes and subject/content area

8) Ross curriculum in effect -- students generally on-task.

9) Coaches to support teachers and target teacher needs.

10) Establishment of PTA itself

11) Improved curriculum systems in school.

12) Strong leadership team in place and working cohesively.

13) Interactions positive between teachers, students, staff, and parents.

14) Caring culture throughout the building. Observed among students in

hallways and classrooms.

The DOE staff did not report "weaknesses," only "areas for improvement":

1) Continue to improve data systems to track learning, analyze trends and track

student progress.°

2) Use data to differentiate instruction to ensure students are making progress.

3) Use data to support teachers in using the data to improve classroom practice.

4) Establish systems to set strategic priorities (goal setting) for whole school,

individual teachers and their development.

See Alvarez Affid., Ex. 1 RGA's administration, its Board and parents were understandably

elated with this news. Coupled with other positive communications and the lack of any

significant negative feedback, they expected that there would be no problem with the school's

charter being renewed. Despite the obligations of the DOE staff to provide the draft report and

the preliminary decision, as required by their own procedures, as noted above, and otherwise

6 In teres t ing ly , the DO E s taf f acknowledges that there we re data sys tems in p lace a nd jus t wanted them improved_There w ere be ing improved subsequen t ly The s ta f f 's f ina l Repor t , however , asser ts e r roneous ly tha t there were nodata sys tems in p lace_ R oss A f f id , Ex I , a t 3

1 5




inform the school of the progress of the renewal process, it never did. The only conclusion that

can be drawn from the DOE's failure to inform is that its staff had already decided to close the

school and did not want to alert RCA of its premeditated decision.

The DOE Meeting With the Board of Trustees

30 .n November 12, 2010, the Board of Trustees of RGA met with the DOE.

31t that meeting, there was no indication from DOE staff that RCA would not be

renewed

32. In fact, DOE staff were confused about the present make up of the Board of RCA,

indicating that there was significant turnover in the Board.

33. The RGA Board corrected DOE staff relaying that the RGA Board was a model

of consistency only losing two of its founders as a result of death and only one resignation. In

fact, the RCA Board has remained consistent throughout the five year charter period and has

added additional talent to the Board since its original charter.

34. This misguided assumptions and errors left the impression on the Board of RCA

that the DOE staff had not properly reviewed the School in its five month process and that DOE

staff, which had changed, had little knowledge and understanding of the Board of RCA, let alone

the functionality of the School itself.

The Meaningless Public Hearing

35. The next step required by the DOE Handbook is a public hearing so its staff can

receive public input and comment on RCA's renewal application.

36. A hearing was held on November 22, 2010. But by this time, RCA's Board,

administration, faculty, parents, and student body had no reason to believe that DOE had drawn

16




negative conclusions about the school's performance, let alone that the DOE staff was intending

to recommend that the school be closed down From all reports, the participants at the public

hearing were universally enthusiastic in their statements in support of the school. Had they

known of any of DOE's concerns, they could have addressed them. Blindsided by DOE's

silence and its staff's misleading communications with the school's administration, they were not

able to do so. There was no fair hearing. There was a total lack of due process.

37. Following the public hearing, the DOE Handbook indicates that DOE and the

State Education Department ("SED") would "request clarifications regarding the Prospective

Application." Ross Affid., Ex. 4, at 6. No such clarifications were ever requested, and RGA's

last opportunity to be informed and heard was lost.

Sudden Announcement of Recommendation against Renewal

.38.ate on Friday afternoon, December 3, 2010, at 4:00 p.m., the DOE began a

carefully choreographed process designed to announce the closing of RGA and to block any real

t ,

effort of RGA to respond. A telephone call was placed to RGA's principal to arrange for the

DOE staff to meet with her promptly at 9:00 a.m. the following Monday. Another call was

placed at the same time on Friday to the school's founder, Courtney Sale Ross, to arrange for her

to receive a "time sensitive" call from the Chancellor the following Monday, also at 9:00 a.m.

Promptly at 9:00 a m, that Monday, DOE staff met with Dr. Cristina Alvarez at the school, and

Mark Sternberg, DOE's Vice Chancellor, called Mrs. Ross, the school's founder, both to

announce curtly that they were recommending against renewal of the school's charter.

39. Incredibly, the DOE staff who appeared in Dr. Alvarez's office did not bring any

copy of the DOE Report containing their recommendation. Instead, they brought a pile of

notices they wanted the school to put in students' backpacks immediately. These notices were to

17




inform the children's parents that their school was being shut down and that they could attend a

meeting that very week to be held at nearby school (not RCA) for information on how to transfer

their children to other schools for the next year. If this occurred, any chance RCA would have to

respond would be mooted by parents' moving their children to other schools, as well as by the

teachers' leaving for positions at other schools.

40. At the same time the DOE staff was meeting with the RCA's principal, and after a

brief "head's-up" call from Mr. Sternberg, Chancellor Klein called her to the same effect. Mrs.

Ross responded by asking for a copy of the DOE Report and requesting a meeting with the

Chancellor and the RCA Board to discuss it. Within an hour, still without providing either the

school or Mrs. Ross with a copy of the DOE Report, DOE issued to the press and public an

announcement of its recommendation of the closing of a number of public schools and the non-

,renewal of RCA, the only charter school on the press-announced list. At the same time,

someone on the DOE staff leaked information on the closing of RCA by way of an email to a

contact at the Community Education Council of District 1 ("CECI") — a local opponent of

charter schools and RCA in particular. 7 Predictably, reporters and camera crews descended on

the school that afternoon to ask the children and parents corning to pick them up how they felt

about the school being closed — their first notification of DOE's decision. Many children were

reduced to tears, and their parents were shocked and angry about the way they were told.

41 According to DOE's procedures, it was supposed to have first provided RCA with

a "draft report" and give the school "two weeks in which to respond with factual corrections."

Ross Affid., Ex. 4, at 16. Only after that procedure was a final version of the Report to be

submitted to the New York State Education Department. Id. Yet again, DOE violated its own

These ac t ions , in issu ing a press re lease prem ature ly and leak ing in format ion regard ing i ts ac t ions to CEC 1, o f theDO E s ta f f v io la te the i r own C ode o f C onduct , which requires them to keep the i r ac t ions conf ident ia l un t i l f ina l andto avo id communica t ions wi th th i rd par t ies See DOE Handbook, p 16 .

1 8




procedures. Not only did it fail to provide any draft report, it took action to reduce RCA's ability

to respond by making a premature announcement to the press and ultimately to the families of

RCA's students that the school was being shut down.

42. Because of the urgency of the situation, arrangements were made for a meeting

between Chancellor Klein and his staff and members of RCA's Board, its lawyers, and other

members of the RCA community. However, again violating DOE's "two week" requirement,

Chancellor Klein insisted that RCA submit any written response it wanted by the close of

business on Wednesday, December 8th — giving it only two days from the time it was finally

given a copy of the Report. Following a meeting the next day at DOE's offices, during which

Chancellor Klein indicated that he had "not yet made a final decision," despite the final nature of

the Report, he sent a letter a week later, reissuing the DOE Report with a few corrections of

obvious errors and still recommending that RGA be denied the renewal of its charter.

43 In being treated as it was by the DOE staff during the renewal process, RCA

suffered a complete lack of due process. Since RCA was plainly entitled to a renewal of its

charter by DOE's own declared standards and procedures, the only conclusion one can draw is

that DOE, under pressure to close underperforming public schools, decided that it had to close a

charter school as well for political reasons.

DOE's Repeated Failures During the Renewal Process

44, Moreover, as indicated above, the DOE failed to comply with its obligations

during the renewal application process. The DOE failed to (1) prepare, and provide to RCA, a

draft report of its findings based on its renewal charter application; (2) provide RCA with an

opportunity to review a draft report, comment on it and suggest conditions that could have led to

approval of its renewal charter application; (3) review any comments on a draft report prior to

19




the DOE's deciding on its recommendation: (4) make a preliminary decision regarding whether

RGA's charter would be renewed prior to any public hearing on such a determination; and

(5) request that ROA submit any clarifications to its Prospective renewal application.

45 The DOE treated RGA's application for renewal of its charter disparately when

compared to those of other similarly situated charter schools Absent the DOE's disparate

treatment, RCA met the substantive guidelines for renewal and, therefore, is entitled to renewal

of its charter.

FIRST CLAIM FOR REVIEW

(Violations of the Education Law)

46. Education Law § 2853(1) provides, "Upon termination or nonrenewal of the

charter of a charter school pursuant to section twenty-eight hundred fifty-five of this article, the

certificate of incorporation of the charter school shall be revoked by the board of regents

pursuant to section two hundred nineteen of this chapter, provided that compliance with the

notice and hearing requirements of such section twenty-eight hundred fifty-five of this article

shall be deemed to satisfy the notice and hearing requirements of such section two hundred

nineteen" (emphasis added).

47. Under Education Law § 2855(2), the board of trustees of RGA was required to be

provided with notice of the proposed non-renewal of its charter "at least thirty days prior to the

effective date of the proposed revocation." Moreover, the notice was required to include a

statement of the reasons for the proposed non-renewal.

48. Education Law § 2855(2) further provides that the charter school must be given

"at least thirty days to correct the problems associated with the proposed revocation."

20




49. Finally, Education Law § 2855(2) required the DOE to provide RCA with an

opportunity to be heard on the proposed non-renewal, consistent with the requirements of due

process of law, prior to the issuance of the DOE's determination.

50. The DOE failed to comply with the procedural requirements of Education Law

§ 2855 prior to recommending non-renewal of RCA's charter.f

51 RCA was never provided any notice of the proposed non-renewal and did not

receive a statement of the reasons for the proposed non-renewal until after the recommendation

had already been made public.

52.CA was denied the statutory thirty-day time period to correct any problems

underlying the DOE's recommendation against renewal of RGA's charter.

53CA was not given any opportunity to respond to the DOE's recommendation of

non-renewal prior to the issuance of that determination.

54.CA was thereby deprived of due process of law.

SECOND CLAIM FOR REVIEW

(Violations of DOE's Policies & Procedures)

55 Furthermore, RCA was placed on the fast track process for renewal of its charter

and, as such, the DOE was required to follow the procedural steps outlined in its "Charter

Renewal Handbook 2010." As outlined on page 6 of the DOE Handbook, the renewal process

contains eight specific steps for renewal. The DOE repeatedly failed to follow these procedures,

the most significant of which was its failure to provide a preliminary draft Report to RCA for

comment and correction, calling into question the legitimacy of the recent recommendation, the

impact of which disenfranchised parents, students, the RCA Board of Trustees and other

stakeholders from the renewal process

21




56 .he process outlined in the DOE Handbook requires the following:

(1 ) By May 3, 2010, RGA must submit a Retrospective Renewal Application

to DOE.

(2 ) Between May 18 and June 18, 2010, a DOE team would visit RCA for

two days to verify and augment the information that RGA had provided to help in

its determination regarding the charter renewal application.

(3 ) By July 16, 2 0 1 0 , DOE's- Char ter S chool Of f i ce must prepare a draft

report of its findings' based on the renewal application, the on-site visits, and

previous oversight findings. Thereafter, the Handbook obligates the Charter

School Office to share the draft findings report with RCA for comments.

Moreover, the Charter School Officer is required to review any comments

provided and prepare a Renewal Recommendation Report to submit to the

Chancellor.

(4 ) By July 16, 2010, RGA must submit a Prospective Application for

renewal of its charter.

(5 ) By July .30, 2010, the Chancellor must make a preliminary decision

regarding whether the RCA's charter should be renewed, the term of the new

charter, and any renewal conditions.

(6 ) Between August and September 2010, a public hearing must have been

held to solicit comment on the possibility of the charter renewal.

(7 ) Between July and August 2010 , DOE and the New York State Department

of Education ("NYSED") must request clarifications regarding RCA's

Prospective Application.

22




(8) By August 15, 2010, if the Chancellor approves the Prospective

Application, he must formally approve the complete application and request that

RCA send the proposed renewal charter agreement to NYSED.

See Ross Affid., Ex 4, at 6 (emphasis added).

57. RCA has complied with all of its obligations under the renewal process in the

DOE Handbook. It submitted a Retrospective Part 1 of its Renewal Application (the

Retrospective) on or about May 3, 2010, including all relevant information and documentation

supporting the application for renewal of its charter. It submitted Part 2 of its Application (the

Prospective) on July 16, 2010.

58, While the School and the DOE staff agreed to postpone the required site visit

(which normally occurs between submission of Parts 1 and 2 of the Application) to August, the

DOE postponed it again to November. The site visit, which took place on November 3 and 4,

2010, clearly established that RCA was a viable organization, that it had stabilized from its

difficult time last year, and that it was providing a real, valuable education to its students in a

safe and supportive environment. At no time did the DOE staff give any indication that they

were negative about the renewal of the school's charter; if anything, their comments were

positive and encouraging. In fact, the visit was extremely positive, and the DOE indicated this to

the RCA staff. RCA, its board, its administration, its teachers, and its student body were never

apprised of any concerns on the part of the DOE staff about the renewal of its charter.

59. Contrary to the requirements of the DOE Handbook, DOE's Charter School

Office failed to prepare, and provide to RCA, a "draft report" of its findings. RCA was

unacceptably denied its opportunity to review a draft report and, as a result, could not correct

factual errors and provide comments, as provided for in the DOE Handbook, that would have led

23




to approval of its renewal charter application under the guidelines in the DOE Handbook.

Instead, if the DOE did prepare a draft report for the Chancellor, they did so surreptitiously and

without supplying a copy or disclosing its contents to RGA.

60. The lack of due process was compounded by the apparent failure of obtaining a

"preliminary decision" from the Chancellor with respect to Part 1 of RCA's Application as

required by the DOE Handbook. Again, if any such decision was obtained, it was never

communicated to ROA. As a result, RCA was denied, yet again, an opportunity to correct

errors, give feedback, or suggest remedial measures for any shortcomings that were identified

61. These grave procedural violations blindsided RCA and prevented it from having a

meaningful public hearing when one was finally held on November 22, 2010. Without having a

"draft report" from DOE or a "preliminary decision" from the Chancellor, and being unaware of

the obvious intent of the DOE staff to recommend against the renewal of its charter, RCA, its

students, their parents, the teachers and the administration were effectively disenfranchised. If

the parents of the children served by the school knew of the intent of the DOE staff to close the

school, they obviously would have wanted to be heard about this terrible loss. The failure of

DOE to disclose any draft report or alert RCA to any preliminary determination of the

Chancellor, much less give any indication that RCA's charter was in jeopardy, rendered the

renewal process meaningless.

62 The DOE notes in its Report (see Ross Affid., Ex. 1, at 5) that over 150 people

attended the RGA renewal hearing on November 22, 2010 including over 20 parents and 20

employees, along with over 15 current RCA students and 7 alumni of the Ross School in East

Hampton, and all spoke in favor of the School. Likewise, over 100 constituents submitted letters

24




in support of the School. 8 Had there been notice that a decision not to renew was being

considered, many more individuals would have appeared and spoken favorably about the School.

63 On top of the lack of required notice, the DOE staff never requested, as they are

required to do by their Handbook, any "clarifications" from RCA that may have responded to

any concerns of the staff or the Chancellor about renewal of the charter. RCA could have

responded to the specific concerns that have finally been disclosed in the Report and either

rebutted them or, if they were well-taken, suggested remedies or appropriate conditions to the

renewal of the charter.

64. Furthermore, although the Chancellor was expected to issue a formal

determination by August 15, 2010, the determination not to renew RGA's charter was not made

until December 17, 2010, more than four months after that deadline.

65. The DOE's clear violations of its own procedures for the renewal process, as

articulated in its own Handbook, substantially prejudiced RCA's rights and require that the

Report be rejected

THIRD CLAIM FOR REVIEW

(Arbitrary & Disparate Treatment)

66. DOE has treated RCA's application for renewal of its charter differently than it

has for other similarly situated charter schools. These very same recommendations that were

approved by the Board of Regents. In practice, the DOE has repeatedly granted renewals to

charter schools in situations similar to or less compelling than RGA's, and DOE's decision to

recommend against RCA's renewal is arbitrary and amounts to disparate treatment

8 In seek ing to rebu t the s t rong, a lmos t un iversa l suppor t o f the parents , the DO E s taf f re fers to un ident i f ied e mai ls i tasser ts i t rece ived f rom parents vo ic ing compla in ts about the school These emai ls , wh ich are not even quoted,undoubtedly come f rom las t year , when the school was exper ienc ing i ts d i f ficu lt t rans i tion to i ts new space

25



' TO THE COMMISSIONER OF EDUCATION

67xamples of such disparate treatment include the following:

Charter

School

Renewal Decision Based on Comparison to RCA

Pen insu la

Prepara toryChar te r S c hoo l

In December o12009,Peninsular Preparatory

Charter School rece iveda three year renewalwith cond i t ions

Enter ing renewal on ly 65 7% ofstudents scored pro f ic ient on theEL A assessmen t . In Ma th , wh i le theSchoo l achieved 82% pro f ic iency , itonly matched the Ci ty average of82% and fai led to surpass i ts localdis tr ic t at 86 4%n addi t ion,Peninsu la scored an "F" and "C" onits only two Progress Reports uponenter ing renewal As fo r s tudentprogress, Peninsula only scored anI I 9 out o f 55 on i t f i r s t ProgressRepor t and a "C" on i ts second.

RCA scored bet ter byDOE's own s tandards ini ts f i rs t two studentprogress reports, scor ing aB and A on the ProgressRepo r t w i th As in s tudentprogress for each yearR CA on ly had one yearwhere academic data waslo w

South BronxCharter Schoolfor I n t e rna t iona lCul tures an dArts

I n De ce mbe r o f2 0 0 9 ,South Bronx Char terSchool for In ternat ionalCu l tu res and Ar tsreceived a three yearrenewal.

This l im i ted renewa l was due tomixed academic results and a largeamo unt 'o f debt incurred in thecharter 's f i rs t term

Whi le RCA o n ly ha s o n eyear o f m ixed academicresults, it has ne ver hadf inancial instabil i ty orsubstant ia l debt concerns

Opportuni tyChar te r School

In December of 2008,Oppor tun i ty Char te rSchool rece ived a twoyear renewa l w i thcondi t ions

Upon renewal Oppor tun i ty Char terSchoo l on ly had 9% and 143% ofstudents scoring prof ic ient on theELA and M ath assessments In th isdecis ion making process, there wasfour years of poor per formance,Oppor tun i ty Char te r Schoo l 'srenewal repor t c i tes and NYCDOE

accepted the fol lowing as chal lengesfor the School :

•After i ts second year o foperat ion, the school was movedto a new space in Comm uni tySchoo l Dis t ric t 3 The schoo lcites this move as a m ajorchal lenge in i ts f i rs t charteringp e r i o d "ppor tun i ty Char te rSchool Renewal Repor t

•On the 2007-08 ProgressReport the school 's Peer Indexwas 2,55, lower than any othermidd le sch oo l in the c i ty . "

S im i la r to RCA ,Opportunity also c i ted, asdid i ts renewal report, thedi f fi cu l ty o f cha ngingschool locat ions as a factorthat can impact studentachievement.n fact,DOE there , un like fo r

RGA , took th is fac tor in toaccount in ma k ing i tsdeterminat ion.

Fu t u re Le a d e rInst i tu te C harterSchool

In January of 2010,Future Lead er Inst i tuteCharter School receiveda three year renewalconsis tent with the termof i ts renewalappl icat ion.

The sch oo l on ly rece ived a "B , " "C"and "B" on i ts Progress repor ts w i thonly a 26 9 /55, "3" and "C" onstudent progress

Again, RCA scored bet terin i ts f i rs t two ProgressReports as to studentprogress and experienced

on ly one year - 2009 - o fpoor academicperformance.

26




68. Furthermore, DOE has recognized that it must show flexibility in passing on a

charter school's first renewal application. Indeed, DOE has actually granted full five-year

renewals to schools not making the new 75% goal, establishing precedent supporting the policy

articulated in its own DOE Handbook, See Ross Afficl , Ex 4, at 5 ("The renewal criteria for

schools in their first chartering period may be interpreted more flexibly, and short-term renewals

may be granted to schools that meet some, but not all of the criteria."). Three of the eight

schools to receive full term renewal have scored less than the required 75% proficiency mark in

ELA. In December of 2008, for example, Bronx Lighthouse received a full term renewal with

only 60.3% of students proficient on the FL A assessment and a "C" and "B" on its Progress

Report. In January of 2009, Harlem Children's Zone Promise Academy received a full term

renewal with only 51.1% of students scoring proficient on the ELA assessment. In January of

2010, New Heights Charter School received a full term renewal with only 62.8% of students

scoring proficient on the ELA assessment, Moreover, in two of these DOE renewal decisions, the

schools — Harlem Children's Zone and Bronx Lighthouse — were renewed despite significant

leadership turnover!)

69. RGA is entitled to be shown the same flexibility DOE showed in its renewal

decisions for other charter schools. Denying RGA's request for renewal is plainly inconsistent

and arbitrary.

9In its Report, DOE makes much of the fact that RGA has had several new principals during its first charter term

However, other charter schools experienced the same turnover in their first years and were still renewed; Bronx

Lighthouse (three new leaders); Harlem Children's Zone (six new school leaders -- two in each of its leadership

categories: superintendent, elementary principal, and middle school principal); Achievement First Crown Heights

(turnover noted); Hellenic (two new leaders): and Peninsula Prep (two new leaders)

27




FOURTH CLAIM FOR REVIEW

(DOE's Failure to Apply Its Own Standards)

70. In accordance with the standards set forth in the DOE Handbook, RGA clearly

qualifies for a short-term renewal or renewal with conditions. It)

71. The DOE Handbook defines a Short-Term Renewal as follows:

In cases where a school has demonstrated mixed academic success with its

students, yet demonstrates the capacity to improve on those results and

implement a stronger program upon renewal, a short term renewal may be

granted Short term renewals are granted when there is evidence that a

school has significantly improved but there is insufficient data to support a

full-term renewal. Reasons for a short-term renewal may include the

school not meeting the goals in its charter, substantial staff and leadership

turnover, inconsistent record of financial oversight and debt management

or violations of the terms of the charter.

72. Furthermore, as indicated above, DOE is supposed to be more flexible in passing

on a school's application for its first renewal -- RGA's exact situation. As its Handbook states,

at page 5: "The renewal criteria for schools in their first chartering period may be interpreted

more flexibly and short-term renewals may be granted to schools that meet some, but not all of

the criteria A short term renewal should be received by schools as a call to make significant

improvements."

73 RCA has met most of its charter goals as approved by DOE despite the

difficulties of the move and turnover last year — the only year of its five years of existence in

which it had poor test scores RCA is clearly entitled to a short term renewal of its charter, in

accordance with DOE's own standards. Leadership, with the support of its own institutional

' 0 A "Renewal wi th Cond i t ions" is war ran ted when:In some cases , when a school has dem ons t rated m ixed academic resu l ts or organizational v iab il i ty , renewal

i s con t ingen t u pon change s t o t he p rospec t i ve app l ica t i on o r new cha r t e r. Th is m ay be a m anda t ed c hange t ocur r icu lum, leadership , o r board governance s t ruc ture tha t wi l l y ie ld improved academ ic outcomes d ur ing the nextchar ter ing pe r iod I f a school has de mons t rated success , for examp le, ac ross mos t areas except for one, the renew alcondi t ions may inc lude pu t t ing the school on probat ion unt i l that par t icu lar area is improved

28




partnership, RGA has turned the school around this year; it now has a stable administration and

faculty; it has a stable and impressive board of highly credentialed and dedicated trustees; and it

has the solid financial and professional support of the Ross Institute, which — together with its

Founder — has contributed more than $8,000,000 towards the financial support of the school.

There is no way RGA is not a viable institution, which is deserving of a renewal at the very least

on a short-term basis or, if there is a demonstrated need, on conditions.

74. Most importantly, RGA has I outperformed the City average each year and

outperformed the State in its first two years of operation. In mathematics, RGA outperformed

the City average each year and outperformed or matched the state average RCA students

consistently improved during the School's first three years of instruction. In English, RCA went

from 60% to 73% to 73%, outperforming the City average each year and outperforming the state

average in our first two years. In Math, RCA went from 76% to 83 % to 88% proficiency over

its first three years outperforming the City average each year and outperforming or matching the

State average. The objective analysis of the data shows that if the cut off levels for proficiency

had remained the same in 2009-2010 as in previous years, 57% of RGA students would have

been proficient in ELA and 75% would have been proficient in mathematics — clearly a case for

renewal under the standards in place when RCA agreed to its initial charter.

75. Given the flexibility required in considering a charter school's first application for

renewal, DOE had to take into account that fact that RGA moved to its present, permanent

location only last year, that it added three grades of new students, and that 49% new students to

RGA were tested for the first time. It was only to be expected that its test scores would dip from

previous years, especially at a time when the State raised the cut scores for student proficiency.

29



TO THE COMMISSIONER OF' EDUCATION

DOE did not take these unusual events into account and did not show the "flexibility" it is

required by its own procedures in passing on RGA's first application for renewal.

FIFTH CLAIM FOR REVIEW

(Irreparable Harm & Need for a Stay)

76. RGA is entitled to a stay of the DOE's determination of non-renewal pending the

determination of the merits of this appeal, pursuant to Education Law § 311(2) and the

regulations of the Commissioner (8 N.Y.C.R.R.) § 276.1.

77. A stay is necessary to protect the interests of RCA, its faculty, students, parents,

and the community in which it is located because, absent a stay, the DOE will continue to send

out notifications indicating that RGA is being closed and recommending alternate school

placements for RCA's students. RCA has been substantially prejudiced by the actions by the

DOE, which unless corrected will have the practical effect of destroying RCA's ability to

address the legitimate issues of concern raised on this appeal

78. Despite the request by Mrs. Ross, RGA's founder and the present Chair of the

Board of Trustees, that the DOE refrain from communicating with the parents of RGA's students

until it had its chance to respond to the DOE determination of non-renewal, the DOE staff later

took it upon itself to send letters directly to the parents of RGA's students indicating that RCA's

charter would not be renewed and, in addition, to issue a press release about the closing of the

School These pre-emptive actions were obviously intended to mute any protest from RCA and

thereby cripple any attempt on the school's part to respond and object to the Report, as it was

and is entitled to do.

79n light of the serious violations of RCA's procedural rights with respect to its

renewal charter application, and the DOE's blatant attempt to frustrate RCA's rights to respond

, 30 ,




and object to its determination, the Commissioner should grant a stay of the DOE determination

of non-renewal pending the determination of the merits of this appeal, pursuant to Education

Law § 311(2) and the regulations of the Commissioner (8 N Y.C.R.R.) § 276,1, and a stay of all

acts in furtherance of said determination. Additionally. the Commissioner should direct the DOE

to retract and correct any and all public statements made with respect to its recommendation of

non-renewal, especially the unwarranted and unprofessional statements made to the parents of

RGA's students

RELIEF REQUESTED

WHEREFORE, for the reasons set forth above and in the accompanying affidavits and

exhibits, RGA respectfully requests that the Commissioner of Education grant an order:

(a ) requiring Respondents to withdraw their Renewal Report, dated December

2010,with respect to Ross Global Academy;

(b ) directing Respondents to consider RGA's renewal charter application de novo;

and

(c ) directing Respondents to comply fully with the procedural requirements of

Education Law §§ 2590-h(2-a), 2853(1) and 2855, as well as Respondent's own

renewal application procedures, prior to resubmitting a Renewal Report with

respect to RG'A's application for renewal of its charter.

FURTHER, RGA respectfully requests that, pending determination of the merits of this

appeal, the Commissioner of Education grant a preliminary order, pursuant to Education Law

§ 311(2) and the Regulations of the Commissioner (8 NYCRR) § 276 1, staying submission of

any Report or Recommendation by the DOE to the New York State Board of Regents concerning

RGA's application for renewal of its charter.

31



WHITEMAN OSTERMAN & HANN


Dated: Albany, New York

December 30, 2010

Kevin P. Quinn

John J. Henry

One Commerce Plaza

Albany, New York 12260

(518) 487-7600

HUGHES HUBBARD & REED LLP

Edward J.M. Little

Ned H. BassenOne Battery Park Plaza

New York, New York 10004-1482

(212) 837-6400

Attorneys for the Ross Global Academy

32



/ 6 4 2

CO iRTNF SALE ROSS

Sworn to before me this

29th day of Decemb

LAU

Notary Public-State of ew York


VERIFICATION

STATE OF NEW YORK

) ss:

COUNTY OF NEW YORK

COURTNEY SALE ROSS, being duly sworn, deposes and says:

1. I am the founder and present chairperson of the Board of Trustees of Ross Global

Academy Charter School, the Petitioner in this appeal.

2. I have read the foregoing Verified Petition and know the contents thereof

3. The same is true to best of my knowledge except as to the matters therein stated to

be alleged upon information and belief, and as to those matters I believe it to be true.

KE V I N P. OUINN

Notary PutAic.Se of /( 1

Cltis/ifi in Albany 04My C ommission Expires

v York

33




VERIFICATION

STA TE O F N EW Y O RK) ss:

COUNTY OF NEW YORK

COU RTN EY SAL E ROSS, being duly sworn, deposes and says:

1. I am the founder and present Chair of the Board of Trustees of Ross Global

Academ y Charter School, the Peti t ioner in this appeal.

2. I have read the foregoing V erified Peti t ion and know the contents thereof.

3. The sam e is t rue to best of my knowledge except as to the m atters therein s tated to

be alleged upon informa tion and belief, and as to those m atters I believe i t to be true.

/s/ Courtney Sale Ross

CO U RTN EY SA LE RO SS

Sworn to before me this

30th day of Decem ber, 2010.

/s/ Notary

Notary Public-State of New Y ork



EXHIBIT 1



June 30, 2009

Lisa Long, Ed.D.

Supervisor

Office of School Improvement and Community Services (NYC)55 Hanson Place, Room 400

Brooklyn, New York 11217

RE: Response to SED's Third Year Comprehensive Monitoring Report

Dear Lisa:

On behalf of the Ross Global Academy Charter School ("RGA"), we want to thank you for your

recent visit to our school. We write to respond to your May 26, 2009 Third Year Comprehensive

Monitoring Report, in which you note areas of strength, non-compliance, and concern.

The Board of RGA is concerned about some of the findings in the Report because we believe not

only that we have demonstrated compliance in the areas noted by the State Education

Department (the "Department"), but that the Report contains several inconsistencies. This letter,

together with the matrix and correction notes, serves as the Board's response to the areas of non-

compliance and concern raised in the Department's May 26, 2009 correspondence. Additionally,

we have attached a copy of our Parent Compact that was first written in August of 2006. (See

Exhibit 1.) We look forward to a corrected Report.

Areas of Non-Compliance:

1. Fingerprint Clearance: The State Education Department was provided with evidence (see

Exhibit 2) of fingerprinting for all staff members mentioned in its Report. We will resubmit thesedocuments. Szeli and Buxton are consultants and Mulhern was a substitute. The clearances for

these three will be provided as well.

2. Teacher Certification: RGA is in compliance with the certification requirements pursuant

to the Charter School law. Under Section 2854, a charter school is permitted to have the lesser

of 5 or 30% of its teachers as uncertified if such individuals meet certain other criteria.

Presently, RGA employs only three uncertified teachers. One of the three non-certified faculty

members is a TFA graduate whose certification was incorrectly reported by the NYSED TEACH

application.

3. Recent Charter Amendments: The Report notes that: (1) RGA is currently serving grades

kindergarten through grades three and grades six through eight; (2) RGA is serving 318 students

versus the 440 approved in the initial charter; and (3) RGA has eliminated its afterschool and

Saturday programs. On May 18, 2009, our authorizer submitted and the Board of Regents

approved retroactive amendments to RGA's charter to address each of these areas, namely, to:

(1) postpone plans to serve high school grades until the proposed first renewal period, beginning

in the 2011-2012 school year, due to insufficient facility space; (2) decrease enrollment from the

projected 500 students to 414 students, at full growth in the 2010-2011 school year as a result of



the grade reconfiguration; and, (3) eliminate all after-school and Saturday school programs due

to lack of participation and fiscal concerns. The Board of Regent's May 18, 2009 Agenda and

Committee Report detailing RGA's proposed amendments to its charter are attached. (See

Exhibit 3.) Accordingly, RGA is in full compliance with its currently approved charter.

4. $1,000.00 Teacher Conference Stipend: The Report notes that this is not being done as

we maintained in our Charter. However, our professional development budget is $160,000

annually. Teachers receive three weeks of professional development during the summer and

weekly support both in class and in professional development meetings. While we are not

providing the $1,000 stipend as specified, RGA is clearly meeting this important need and

simply modified this aspect of professional development, a minor change given the larger

responsibility of operating a school.

5. Chinese Language Instruction: The Report alleges inconsistent implementation of our

Chinese language program. There were two brief periods during the year in which Chinese

instruction was interrupted. Our Chinese teacher's last day was September 18, 2008. From

October 12, 2008 through February 6, 2009, a substitute taught Chinese culture through the

integration of technology and ELA literacy. Another teacher, Ms. Chang, began teaching

Chinese on Monday, February 9, 2009 and was released on Thursday, February 12, 2009. On

March 9, 2009, Ms. Graham officially commenced her permanent assignment as the Chinese

teacher. Although there have been brief periods of interruption in Chinese instruction, we have

consistently tried to implement a strong and successful Chinese language program pursuant to

our charter.

Areas of Concern:

1. The Staffing of Nurses: The Report raised concern over the fact that we did not have a

nurse at both of our School's locations. While we understand the Department's concern, neitherour charter nor the law requires that school nurses be staffed at each school site. To the contrary,

all that is required is that each school district's board of education or, in our case, our board of

trustees, employ one or more school nurses. Our lawyers pointed us to N.Y. Educ. Law § 902;

44 Educ. Dep't. Rep. 129 (2004), which indicates that there was no requirement that a school

district staff each of its schools with a full-time nurse. Based on our student population and

medication concerns employing one school nurse at our 52 Chambers Street location is sufficient

to meet the School's needs at this time. This arrangement was made in consultation with the New

York City Department of Health.

2. Alleged Educational Deficiencies: The Report takes issue with three components of our

educational program: (1) classroom management, (2) professional development and support, and

(3) teacher competency. The issue of classroom management as it is presented in the Report

came as a surprise, given that there was no mention of it during the debriefing meeting.

Furthermore, there are aspects of the Comprehensive Monitoring Feedback Report ("CMFR")

that seem to contradict the finding that classroom management was a notable concern in many

classrooms. (See Exhibit 4.) For example, RGA received 11 "yes's" in the following

Monitoring Items: Transitions smooth and efficient, Positive teacher feedback observed, and

Time on task was well spent. In addition, ongoing professional development has occurred since



August in the areas of classroom management and school culture. Specifically, we have run the

following programs: Responsive Classroom, I Understand, Connected and Respected, Character

Counts, and Love and Logic. (See Exhibit 4.) Through these programs, RGA has researched

and designed a school-wide classroom management program that specifically meets the needs of

our students.

In regard to your concern for our teachers' professional development and support, we find this

observation directly in conflict with your findings of strength, namely that "professional

development has been sought by administrators, through networking, to meet the on-going needs

expressed by the instructional staff' and that "school leadership offers continuous professional

feedback to instructional staff, and teachers agree that the feedback received is beneficial in

moving instructional practice forward." After discussing your visit with our faculty, it became

apparent that several teachers felt their voices were being steered in a negative direction. A

teacher's statement has been provided to reflect teachers' understandings of the conversation,

and is attached hereto. (See Exhibit 5.) Additionally, in the first paragraph of the Summary of

Findings Team Member Report the Department states that, "despite the distance between the

schools, information sharing and collaboration were evident between the two." This statement is

more consistent with our experience and contradicts the area of concern presented above.

Finally, with regard to teacher competency, the CMFR provides that our teacher's strength in

content knowledge was displayed. The CMFR also indicates that our teachers' instructional

strength was satisfactory at all grade levels and subject areas. (See Exhibit 4.) These findings

directly contradict the concerns noted in your Report.

3. 2008 Budget and Financial Matters: In your Report, you mention the $20,000.00 sum

with which we closed the 2008 fiscal year, and you caution us to pay close attention to fiscal

matters to ensure the ongoing fiscal strength of the school. While it is true that we ended the

2008 fiscal year with less than $20,000.00, we are confident that RGA will continue to thrivefinancially and maintain its ability to pay its bills and grow as planned. As with any new charter

school, RGA expected and planned for the uneven nature of Charter School cash flow at its

inception. To handle this natural issue that results from bi-monthly per pupil payments and the

uneven nature of charitable giving, the School secured a line of credit to ensure that its bills are

paid and that the school remains financially solid. We are confident that RGA will continue to

thrive financially and maintain its primary objective, namely, to provide a high quality education

to inner-city students.

With regard to the significant changes in the Budget outlined in the Department's Matrix, the

School is operating consistent with the charter approved by the New York City Department of

Education ("DOE") and the State Education Department, as well as our annual budgets and

forecasts. We have a .78% variance from our approved budget to our actual expenditures for the

2007-2008 school year. With specific regard to the significant changes, we should point out that

in our approved charter, it was entirely clear that Ross Institute, RGA's institutional partner,

would provide a minimum of $632,500 in loans or loan guarantees, and $842,500 of planning

and design support, for total anticipated loans of $1,475,000. One significant unanticipated cost,

however, was incurred as a result of the DOE's decision to locate RGA within Nest+M, which



resulted in $425,187 of legal expenses for RGA before our doors opened. Our institutional

partner fortunately underwrote that cost.

4. Fundraising Goal: Your Report expresses concern over the fact that the stated

fundraising goal of $300,000.00 was allegedly unknown to the School's fiscal and operationsteam. To the con trary, the fiscal team is well awa re of the School's projected fundraising goa lsas these are set forth in the School's budget prepared by them . In addition, the statement appe arsmore targeted than noteworthy since this matter is of little significance. The RGA Board is astrong, well-functioning Board and will continue to communicate its goals in a clear and

effective man ner as it has in the past.

Finally, SED's remarks regarding the School's complaint process inaccurately state that the

Board of Trustees has received no formal complaints from parents during the current school

year. To the contrary, we have shared the parent com plaints received by the Board w ith SED,and they are attache d to our response as an Exhibit. (See Exhibit 14.) RGA continues to addressparent com plaints in a timely and effective way pu rsuant to the processes outlined in our 2008-2009 Student Family Handbook.

In sum, we believe that the areas of non -compliance noted in your Report w ere not issues wherewe w ere out of com pliance. As stated, we have com plied with all of the areas you raise in yourReport, either by way of docum entary evidence or through app roved amendm ents to our charter.The remaining concerns, while important, are contradicted by the findings made in both yourMay 26 t h Report and in the C MFR . As such, we believe that the overall outcome of your thirdyear visit demonstrates that RGA is succeeding in its mission to provide quality education to adiverse student population through the use of innovative and global teaching techniques. Welook forward to working together to continue achieving success for our students.

Thank you for your time and consideration to this matter. If you need any additionalclarifications, please do not hesitate to reach out to any o r all Board mem bers.

Sincerely,

Ross Globa Academy C hat er School52 Chambers Street

New York, NY 10007

verified petition - ross charter school

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