-------- x
In the Matter of the Application
of
AFFIDAVIT OF MARC STERNBERG IN SUPPORT OF THE VERIFIED PETITION AND PETITIONER'S MOTION FOR A TEMPORARY RESTRAININ ORDE,R
Index No
112
For a Judgment and Order Pursuant to Article 75 of the Civil Practice Law and Rules, - against -
STATE OF NEW
YORK YORK
)
SS
coLrNTY OF NEV/
states as follows:
of
Education
("DOE"). I
in
support
petitioners' motion
enforcement Federation
of an arbitrator's
by the
United
("CSA"), (collectively, the "LJnions") were arbitrable. The arbitrator's award finding the
grievances arbitrable and sustaining the grievances impermissibly interferes with the powers
of
("Commissioner"), and negates his determination approving the DOE's plans to close 24 failing
schools and open new ones in their places. The arbitrator's award not only violates public
policy, but was also made in excess of the arbitrator's authority under the collective bargaining
agreements ("CBAs") between petitioners and the Unions, and New York
law
governing
of the
2.
for managing the portfolio of schools in the City School District and ensuring that all students
have access to high quality educational options.
2010, and have been employed previously by the DOE as a teacher between 1995 and 1998 and
as a
princal between 2004 and20Og. This affidavit is based on my personal knowledge of the
DOE's determination to close and replace the 24 schools and the factors that led up to that
determination, my review of documents referred to below, and conversations with my staff and
other DOE employees.
3.
are the farthest from meeting certain academic benchmarks he has estabiished and most in need
are
also designated as persistently lowest achieving ("PLA") schools, based on, among other things,
their low graduation rates and/or failure to make adequate yearly student progress. See 8
N.Y.C.R.R. 1 00.2(pxe).
4.
On
authorized the
replace
immediately DoE to close 24 SURR/PLA schools. The PEP also authorired ttr" DoE to the closing schools with new schools that
were enrolled
a
schools with in the schools to be closed. This initiative will provide the students at these
may qualify the subject schools for renewed opporfunity for success. Furthermore, the initiative intervention model federal School Improvement Grant ("SIG") funding under an educational called "Turnaround."
process
as Exhibit
as
,,2,,, theCommissioner approved the DOE's plans to close the 24 fa'i'ng SURR/PLA schools
authorized bY the PEP.
6.
application
an
for
of Regents (the "Board of recommendation regarding approval to the New York State Board
applications' which Regents"). See 8 N.Y.C.R.R. 100.2G)). By approving the DOE's closure
expressly contemplated
wiil
welcome in the students who had attended the closed schools when classes
7.
issue' The purpose of the DOE's initiative with respect to the 24 schools at
to expeditiously improve which has now been authonzedby the PEP and the Commissioner, is
Towards this end, the educational opportunities for the students enrolled in these 24 schools'
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to
prospective staff, including cunnt staff who apply to work at the new schools. Based on these
criteria, and in accordance with the staffing requirements in the DOE's existing CBAs with the
Unions, new schools have put in place a process aimed at hiring the best possible teaching staff,
thus immediately improving teacher quality and, by extension, improving the quality of learning
8. In hiring instructional
has
new schoois at issue in this case. Indeed, the schools have already received over
appiications for positions at these schools.
9.
The new schools have also developed new programs and school supports that
are intended to improve student learning. The DOE intends to implement new instructional and
excellence. These schools will, among other things, adopt new curricula and
building on the strongest elements of the existing schools, hiring new talent and ineorporating
new elements designed to better meet student needs, the immediate closure and replacement
these schools
of
the new 24 schools. SIG rnding is made available through the federal government's
Elementary and Secondary Education Act for states to distribute (in New York's case, through
the State Education Department ("SED")) to schools deemed persistently lowest achieving,
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provided that the school districts seeking such funding adopt one
of four federally-approved
intervention models for those students.l See id. The DOE applied to SED for SIG funding for
has been clear about its intent to move forward with closing the
'We
struggling schools and opening new ones regardless of whether SIG funding is provided.
will not allow the educational futures of 30,000 students to be contingent on the recet of funding. The DOE is committed to improving the educational opportunities for its
SIG
students,
regardless of whether or not its SIG application is approved. However, when the Commissioner
approved the DOE's SURR plans to close the 24 struggling schools and replace them with new
ones, he also stated that SIG funding
upon three events: (a) demonstration of compliance with Article 18D of the UFT's CBA at the
new schools; (b) submission of proof that "relevant stakeholders" had been consulted in the
process of crafting the proposals for the new schools; and (c) a demonstration of reduction of the
language
proficiency.
the Commissioner's clear approval of the SURR plans to close the 24 struggling schools and
open new ones in their piace.
13. In sum, under the duties delegated to him by State law and regulations, the
Commissioner determined that the DOE's proposal to close the 24 SURR schools fulfilled all
regulations require school districts to implement one of the four intervention strategies set forth by the federal statute for PLA schools. See 8 N.Y.C.R.R. $ 100.2)(10)(iv). However, approval of that intervention model for SIG funding purposes does not affect the State Commissioner of Education's abitity to approve a school district's plan to close a SURR/PLA school, or to recommend the registration of a new school.
t Ne* York
-5-
of 24 new,
The DOE
totally derail the DOE's plans to effectuate change at these 24 schools. Even a temporary
intemrption of the process now in progress to close the struggling schools and replace them with
new, strengthened ones will cause ir:reparable harm to the DOE's ability to attract qualified
candidates and engage in the structural overhauls necessary to have the new schools ready for
students by the first day of classes in September.
other school districts. As such, it will destroy the DOE's ability to get the new schools properlystaffed and up and running in time for the first day of classes in September.
16. Furthermore,
the DOE
as
to the ourrieula and staff positions it has already created for the new schools. Allowing
the
arbitrator's decision to stand, even temporarily, would require that the entire staffs of the closed struggling schools be returned to their positions, despite the proven failure of these schools.
With less than two months until September, DOE must continue to move forward with its plans
to open new schools that will properly serve the over 30,000 students.
17. Effectively,
approved closures and openings due to an arbitrator exceeding his authority would prevent the
DOE from implementing those State-approved plans. Accordingly, the DOE must be granted
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The Harm That Over 301000 Schoolchildren Will Suffer if the Arbitrator's Award is not of Eouitv Order Vital as a a Temnorarv Restr Enioined
even temporarily,
will
consign the over 30,000 children who will be attending the new schools in September to
continuing in schools that the state's highest educational authority expressly permitted the DOE
to close and replace.
i9.
"[i]f
schoois are not closed, students may be subject to substandard educational environments which
will obviously cause them to be considerably harmed." Mulqrew v. Bd. of Educ., 33 Misc.3d
350, 366 (Sup. Ct. N.Y. County 2011).2
these children
will
It is
possible
'
direction, his decision reflected the particular circumstances of that case, essentially involvlng an -carry pO-Oant to a negotiated letterallegatron that the DOE failed to _out a remedial Plan No such allegations exist in the present case-the DOE.is attempting to carry-out a agrement. rut"-upproved remedial p1an, and an arbitrator is attempting to substitute his authority for that of a govefiment official.
Whil" Justice Feinman ultimately concluded that the equities did not tip decidedly in either
-7-
Conclusion
2l.
documents,
respectfully request that the Verified Petition and Petitioners' Motion for
Temporary Restraining Order in this case be granted in their entirety, together with such other
NOT
*""?l'{,IF,)83'to"lll'lF"'*
Gommission Expires Ji
audri.i ew Yo*
33i1yl'
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