1146927.4

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- xLISA STEGLICH, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMARI BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian of HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL, infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant, Plaintiffs,

-against- THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor of the City School District of the City of New York, Defendants.

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Index No. __________ Date of Purchase: ____________ COMPLAINT

Plaintiffs Lisa Steglich, Ric Cherwin, Carol Barker, Gina DeMetrius, Kimberly Jarnot,

Nydia Jordan, Kavery Kaul, Ruben and Geraldine Lopez, Madeline Olmeda, Lazara Quinones,

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and Marilynn Sarjeant, and infant Plaintiffs Alexander Herlihy, Marley Cherwin, Omari Brown,

Sebastian DeMetrius, Margaret Thomas, Harry D. Jordan, Ashok Kaul, Shane Lopez, Cristina

Jullia Cruz, Doris Alcantara and Aliya Clunie, by their respective parents and natural guardians,

all by their attorney Phillips Nizer LLP, as and for their Verified Complaint pursuant to CPLR §

3001 hereby allege as follows:

Nature of the Action

1. This action seeks a declaration that Defendants the New York City Department of

Education (“DOE”) and Dennis M. Walcott, as Chancellor of the City School District of the City

of New York (“Chancellor”), failed to comply with Education Law §§ 2590-h [2-a](c), (d-1) and

2853 [a-3](3), as well as Chancellor’s Regulation A-190 § II.B.5 when – more than four months

after their co-Defendant, the Board of Education of the City School District of the City of New

York (“PEP”) voted to approve a proposal to co-locate Success Academy Charter School

(“SACS”), serving kindergarten and elementary school children, into the Brandeis Educational

Campus (“Brandeis Campus”), a stand-alone public school building that already houses six

separate high schools; and less than six months prior to the commencement of the 2011-2012

school year – they issued a Revised Notice of the proposed co-location, a Revised Educational

Impact Statement (“Revised EIS”), and a Revised Building Impact Statement (“Revised BUP”).

Copies of the Revised Notice, Revised EIS, and Revised BUP are annexed hereto as Exhibits 1,

2 and 3, respectively.

2. The Defendants similarly failed to follow statutorily-mandated procedure in their

issuance and approval of the original proposal to co-locate SACS in the Brandeis Campus.

Those failures are the subject of a related Article 78 proceeding, Steglich v. Board of Education,

Index No. 104300/11 (Feinman, J.) (“Steglich I”).

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3. On June 2, 2011, counsel for the Defendants abandoned the original EIS and

BUP, and represented the Defendants no longer would rely upon the February 2, 2011 PEP vote

to proceed with the proposed co-location of SACS into the Brandeis Campus. On June 6, 2011,

the DOE and Chancellor issued the Revised Notice, Revised EIS and Revised BUP, and for all

intents and purposes thereby conceded their failures as to the original proposal, as set forth in

Steglich I.

4. Defendants cannot cure the procedural and substantive errors in the original

proposal by shouting “do over” after the game has been played. Specifically, any revisions to the

original EIS and BUP had to be made (i) before the PEP vote, and (ii) six months prior to the

first day of the school year in which the change in utilization is to take effect.1

5. Accordingly, Plaintiffs seek an order (a) declaring that the Revised EIS and BUP

violate Education Law §§ 2590-h[2-a](c), (d-1) and 2853[3](a-3)(3), as well as Chancellor’s

Regulation A-190, and are untimely for the proposed co-location of SACS in the Brandeis

Campus for the upcoming school year; and (b) permanently enjoining the co-location of SACS in

the Brandeis Campus for the 2011-2012 school year.

Parties

6. Plaintiff Lisa Steglich is a resident of the City and State of New York and a parent

and natural guardian of infant plaintiff Alexander Herlihy, a student enrolled in the 9th grade at

Frank McCourt High School (“Frank McCourt”), one of the six high schools occupying and

utilizing the Brandeis Campus. Ms. Steglich also is the President of the Parent-Teacher

Association of Frank McCourt.

1 Moreover, substantive changes in the revised proposal, to the extent they refer to YABC, mean that the revised proposal affects a new school, which is prohibited by Educ. L. § 2590-h[2-a](d-1).

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7. Plaintiff Ric Cherwin is a resident of the City and State of New York and a parent

natural guardian of infant plaintiff Marley Cherwin, a student enrolled in the 10th grade at The

Global Learning Collaborative, (“Global Learning”), one of the six high schools occupying and

utilizing the Brandeis Campus. Mr. Cherwin also is the President of the Parent-Teacher

Association (“PTA”) and a member of the School Leadership Team (“SLT”) of Global Learning.

8. Plaintiff Carol Barker is a resident of the City and State of New York and a parent

and natural guardian of infant plaintiff Omari Brown, a student enrolled in the 11th grade at

Innovation Diploma Plus (“Diploma Plus”), one of the six high schools occupying and utilizing

the Brandeis Campus.

9. Plaintiff Gina DeMetrius is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Sebastian DeMetrius, a student enrolled in the 10th

grade at Frank McCourt.

10. Plaintiff Kimberly A. Jarnot is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Margaret Thomas, a student enrolled in the 9th

grade at Frank McCourt.

11. Plaintiff Nydia Jordan is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Harry D. Jordan, a student enrolled in the 9th grade

at Frank McCourt.

12. Plaintiffs Kavery Kaul is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Ashok Kaul, a student enrolled in the 10th grade at

Frank McCourt. Ms. Kaul also is Vice President of the PTA of Frank McCourt.

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13. Plaintiffs Ruben and Geraldine Lopez are residents of the City and State of New

York and the parents and natural guardians of infant plaintiff Shane Lopez, an Individual

Education Program (“IEP”) student enrolled in the 9th grade at Frank McCourt.

14. Plaintiff Madeline Olmeda is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Cristina Jullia Cruz, a student enrolled in the 10th

grade at Global Learning.

15. Plaintiff Lazara Quinones is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Doris Alcantara, an IEP student enrolled in the 9th

grade at Frank McCourt.

16. Plaintiff Marilynn Sarjeant is a resident of the City and State of New York and a

parent and natural guardian of infant plaintiff Aliya Clunie, a student enrolled in the 9th grade at

Frank McCourt.

17. Defendant The Board of Education of the City School District of the City of New

York, a/k/a PEP, is organized under and existing pursuant to the Education Law of the State of

New York.

18. Defendant DOE is the branch of the municipal government of the City of New

York that manages the City’s public school system. The DOE is run by the Chancellor of the

City School District, Defendant Dennis M. Walcott.

19. Defendant Dennis M. Walcott is the Chancellor of the City School District of the

City of New York and functions as its chief executive officer and superintendent. The

Chancellor operates through his administrative offices, the DOE.2

2 Because the Chancellor operates through the DOE, the Chancellor and DOE are referred to herein interchangeably. The Chancellor, DOE and PEP are collectively referred to herein as Defendants.

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Jurisdiction and Venue

20. This proceeding is brought pursuant to CPLR § 3001 for, inter alia, a declaration

that the Revised EIS and Revised BUP relating to the SACS co-location are untimely and in

violation of Education Law §§ 2590-h[2-a](c), (d-1), and 2853[3](a-3)(3), as well as

Chancellor’s Regulation A-190 § II.A.3.

21. Venue is proper in New York County pursuant to CPLR § 503 because it is the

County in which many of the Plaintiffs and all Defendants reside.

Background

The Co-Location Process

22. In the most basic terms, co-location is a two-step process. First, the Chancellor

must determine whether a given school or, if it houses multiple schools, school building

(collectively, “School”) is “under-utilized.” Second, if the Chancellor determines under-

utilization exists, the Chancellor then may propose such a significant change in utilization of the

School, including the possibility of a co-location of another school, such as a charter school.

23. For each such proposal, the Chancellor must

prepare an educational impact statement [“EIS”] regarding any proposed school closing or significant change in school utilization, including the phase-out, grade reconfiguration, re-siting, or co-location of schools, for any public school located within the city district.

Educ. L. § 2590-h [2-a](a).

24. If the significant change of use proposed by the Chancellor is the co-location of a

charter school into an existing School, the EIS also must include a statement of the rationale for

the co-location in the affected School, as well as a BUP. Educ. L. §§ 2853 [3](a-3)(1), [3](a-

3)(3); Chancellor’s Reg. A-190 § II.A.2.a(i)-(ii).

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25. The EIS, together with the BUP, must “be made publicly available, including via

the city board’s official internet website, and a copy shall also be filed with the city board, the

impacted community council, community boards, community superintendent, and school based

management team at least six months in advance of the first day of school in the succeeding

school year.” Educ. L. §§ 2590-h [2-a](c) (emphasis added), see also Educ. L § 2853 [3](a-

3)(5); Chancellor’s Reg. A-190 § II.A.3.

26. Although Educ. L. § 2590-h [2-a](d-1) permits the chancellor to revise proposals,

he may do so only in certain circumstances:

So long as the revised proposal does not impact any school other than a school that was identified in the initial educational impact statement, the chancellor after receiving public input, may substantially revise the proposed school closing or significant change in school utilization provided that the chancellor shall . . . publish and file such educational impact statement, in the same manner as prescribed in subparagraph (c) of this subdivision.

Educ. L. § 2590-h [2-a](d-1) (emphases added).

27. The Chancellor, the Community Education Council (“CEC”) and the School

Leadership Team (“SLT”) must then hold a joint public hearing about the EIS and the BUP (the

“Joint Hearing”) on a date no less than thirty days, and no more than forty-five days, after those

documents were filed properly with all designated entities. Educ. L. § 2590-h [2-a](d).

28. The Chancellor must submit all significant change of utilization proposals to PEP.

Educ. L. § 2590-h [2-a](e); Chancellor’s Reg. A-190 § II.C.1.

29. Prior to considering a significant change of utilization proposal, PEP must

undertake a public review process to afford the public an opportunity to submit comments on the

proposed items, and provide public notice at least forty-five days in advance of any city board

vote on such item. Educ. L. § 2590-g [8](a); Chancellor’s Reg. A-190 § II.C.2; Bylaws of the

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Panel for Educational Policy of the Department of Education of the City School District of the

City of New York (the “PEP By-Laws”), § 2.5.1(h) at pp.7-8.3

30. Following the public review process, but prior to any PEP vote on a significant

change of utilization proposal, PEP must make available to the public “an assessment of all

public comments … received prior to twenty-four hours before the [PEP] meeting at which such

item is subject to a vote” (“Public Comment Analysis”). Educ. L. § 2590-g [8](c)(i)-(ii);

Chancellor’s Reg. A-190 § II.C.4.

31. To approve a proposed significant change of utilization, a majority of the whole

PEP membership must vote in the affirmative. PEP By-Laws § 2.2 at p.6.

The Brandeis Campus

32. The Brandeis Campus is located at 145 West 84th Street, New York, New York, in

Community School District 3.

33. The Brandeis Campus is not a campus in the commonly-used sense of that word.

It consists of only one self-contained building. In DOE terms, it is known as “Building M470.”

34. Currently, the Brandeis Campus houses six high schools:

• Louis D. Brandeis High School (03M470, “Brandeis High”); • The Urban Assembly School for Green Careers (03M402, “Green

Careers”); • Global Learning (03M403); • Diploma Plus (03M404); • Frank McCourt (03M417); and • The Brandeis Young Adult Borough Center (03M577)(“YABC”).

35. Additionally, the Brandeis Campus houses a Living for the Young Family

Through Education (“LYFE”) program. The LYFE program supports pregnant and parenting

students enrolled in a DOE school by providing childcare and referral services.

3 The PEP By-Laws are available at http://schools.nyc.gov/NR/rdonlyres/B432D059-6BFE-4198-8453-466FDE2B22D5/69835/PEPBylawsFinal91409.pdf.

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The Brandeis Campus Co-Location Process

A. The Original Co-Location Proposal

36. On December 17, 2010, the DOE issued its original EIS and BUP that outlined its

proposal to co-locate SACS within the Brandeis Campus.

37. Also on or about December 17, 2010, PEP published the Notice of The Proposed

Co-location of a New Public Charter School, Success Academy Charter School, with Existing

Schools in the Brandeis Educational Campus (the “PEP Notice”).

38. On or about December 22, 2010, PEP published an Amended Notice of The

Proposed Co-location of a New Public Charter School, Success Academy Charter School, with

Existing Schools in the Brandeis Educational Campus (the “PEP Amended Notice”).

B. The Joint Hearing on the Original Proposal

39. On January 25, 2011, DOE held the so-called Joint Hearing regarding the

proposal to co-locate SACS at the Brandeis Campus. Approximately 371 members of the

community attended the hearing and 112 people spoke.

40. After the Joint Hearing, and prior to the PEP vote, PEP issued a Public Comment

Analysis, which is an assessment of all public comments it receives concerning the proposal

twenty four hours before the PEP meeting, as required by Educ. L. § 2590-g [8](c)(i)-(ii);

Chancellor’s Reg. A-190 § II.C.4.

C. The PEP Meeting and Vote on the Initial Proposal

41. On February 2, 2011, despite the overwhelming public opposition to the proposed

co-location, as documented in the Public Comment Analysis, and despite the numerous errors

and deficiencies in the Brandeis EIS and Brandeis BUP discussed at the so-called Joint Hearing,

the PEP members voted 7-4, with one abstention, in favor of the proposal. PEP Meeting

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Minutes, Feb. 1, 2011, available at http://schools.nyc.gov/NR/rdonlyres/02AA7F36-EB67-

4EBD-A1E0-569A4EEB4AB4/98724/moa2112.pdf.

D. The Defendants’ Original Proposal and Process is Challenged

42. Plaintiffs here challenged the PEP vote in Steglich I, an Article 78 proceeding. In

that action, the petitioners alleged that the initial EIS and BUP were inaccurate, incomplete and

insufficient because: (1) the EIS did not include current enrollment figures, thus understating

space allocation;4 (2) the EIS did not meaningfully address the impact on either the community

or affected students, as required by Educ. L. §§ 2590-g [2-a](b)(i)-(ii) and Chancellor’s Reg. A-

190 §§ II.A.1.c, II.A.1.f, including the impact of on the high-school students of the space re-

allocation and the safety issues that may ensue from throwing together kindergarteners and first

graders into a building with later-age teenagers;5 (3) the EIS did not address the effect on

personnel needs, including the monitoring needed to ensure safety for all students in the shared

space or the supervision and logistical demands that would be placed on educators,

administrators or security staff, in contravention of Educ. L. § 2590-g [2-a](b)(iv) and

Chancellor’s Reg. A-190 § II.A.1.h;6 (4) the EIS failed to disclose recent capital improvements

for the Brandeis Campus to the tune of $17.5 million, in violation of Educ. L. § 2590-g [2-

a](b)(v) and Chancellor’s Reg. A-190 § II.A.1.i;7 and (5) the BUP failed to include a

“justification of the feasibility of the proposed allocations … and how such proposed allocations

and shared usage would result in an equitable and comparable use of such public school

building,” in contravention of Educ. L. § 2853 [3](a-3)(2)(C)(emphasis added) and Chancellor’s

Reg. A-190 § II.A.2.c, in that the rules of space allocation for elementary schools are different

4 Verified Petition ¶¶ 87-91. 5 Id. at ¶¶ 93-99. 6 Id. at ¶¶ 100-102 7 Id. at ¶¶ 103-105.

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than, and preferential to, those for high schools, thus SACS students automatically will receive a

disproportionate share of space than existing Brandeis Campus high school students.8

43. In Steglich I, the petitioners also alleged that the DOE failed to provide sufficient

notice of the EIS, BUP and/or joint public hearing to certain of the school’s SLTs, those SLTs

were also denied their opportunity to present comments or concerns regarding the proposed co-

location at the joint public hearing, in contravention of Education Law §§ 2590-h[2-a](d) and

2853 [3](a-3) (5).9

44. The petitioners also alleged that the PEP failed to comply with the notice

requirements in that its Notice of the proposal omitted the date of the joint hearing and was not

published in both English and Spanish, in contravention of Educ. L. § 2590-g [8](a)(iv);

Chancellor’s Regulation A-190 § II.C.2.d (relating to the date of the joint hearing) and Executive

Order No. 120 § 2.d.i (issue by the Mayor of the City of New York on July 22, 2008),10 the DOE

Language Access Plan,11 and Chancellor’s Regulation A-633 §§ III.B, V.A12 (relating to

publishing the Notice in Spanish).13

The Revised Proposal to Co-Locate SACS in the Brandeis Campus is Untimely and Cannot Support the Co-Location for the Upcoming School Year

45. On June 6, 2011, the DOE issued the Revised Notice, Revised EIS and Revised

BUP concerning the proposed co-location.

46. Although Educ. L. § 2590-h[2-a](d-1) permits the Chancellor to revise an EIS

and/or BUP that support co-location proposals, such revisions may be made only if they satisfy

at least three conditions: first, “the revised proposal does not impact any school other than a 8 Id. at ¶¶ 106-116 9 Id. at ¶¶ 117-127. 10 http:www.nyc.gov/html/imm/downloads/pdf/exe_order_120.pdf 11 http://schools.nyc.gov/RulesPolicies/languagepolicy.htm 12 http://docs.nycenet.edu/docushare/dsweb/Get/Document-151/A-663%20Translation%203-27-06%20.pdf 13 Id. at ¶¶ 128-135

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school that was identified in the initial educational impact statement”; second, the revisions are

made after the Chancellor receives “public input,” i.e., the Joint Hearing and Public Comment

Analysis; and third, the Chancellor must be “publish and file such [revised] educational impact

statement[s], in the same manner as prescribed in subparagraph (c)” of Section 2590-h[2-a].

Educ. L. § 2590-h[2-a](d-1)(emphasis added).

47. Subparagraph (c) requires the EIS to “be made publicly available, including via

the city board’s official internet website, and a copy shall also be filed with the city board, the

impacted community council, community boards, community superintendent, and school based

management team at least six months in advance of the first day of school in the succeeding

school year.” Educ. L. § 2590-h[2-a](c) (emphasis added).14

48. The Revised EIS and Revised BUP cannot serve as a legal basis for the proposed

co-location of SACS into the Brandeis Campus for the upcoming school year because the

Revised EIS includes YABC, a school that was not identified in the original proposal. Thus, the

EIS cannot merely be revised; rather, the entire process must be started anew. Educ. L. § 2590-h

[2-a](d-1).

49. Similarly, the Revised EIS and Revised BUP cannot serve as a legal basis for the

proposed co-location of SACS into the Brandeis Campus because they were issued not simply

after the Chancellor received public input, but rather after the PEP voted to approve the original

proposal, including the original EIS and BUP upon which it was based. Educ. L. § 2590-h [2-a]

(d-1).

50. Finally, the Revised EIS and Revised BUP cannot serve as a legal basis for the

proposed co-location of SACS into the Brandeis Campus for the 2011-2012 school year because

they were issued June 6, 2011, significantly less than “six months in advance of the first day of 14 Chancellor’s Regulation A-190 §§ II.A.1 and II.B.5 provide the same notice requirements.

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school in the succeeding school year. Consequently, the Revised EIS and Revised BUP cannot

serve as a legal basis for the proposed co-location of SACS into the Brandeis Campus for the

2011-2012 school year. Educ. L. §§ 2590-h[2-a](c), (d-1).

FIRST CAUSE OF ACTION

51. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 50 if

set forth herein.

52. Pursuant to Education Law Articles 52-A and 56, Defendants have a duty, before

significantly changing the utilization of any school, to prepare and make publicly available an

EIS and BUP or revised EIS and BUP at least six months in advance of the first day of the school

year in which the change in utilization is to take effect.

53. Defendants have failed to comply with the provisions of the Education Law §§

2590-h[2-a](c), 2853[3](a-3)(3), and Chancellor Regulation A-190 § II.B.5 by issuing a Revised

EIS and Revised BUP without providing sufficient notice to the public at least six months in

advance of the succeeding school year.

54. Defendants issued the revised proposal documents after the PEP vote on the

original proposal and without obtaining new public comments on the revised proposal, in

violation of Education Law § 2590-h[2-a](d-1).

55. Defendants have also failed to comply with the provisions of Educ. Law § 2590-

h[2-a](d-1) in that it issued a Revised EIS and BUP that included YABC, a school that was not

identified in the original proposal.

56. A real and justiciable controversy exists between Plaintiffs and Defendants

concerning the validity of the Revised EIS and Revised BUP.

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57. By reason of the foregoing, Plaintiffs are entitled to a judgment declaring,

pursuant to CPLR §3001, that the Revised EIS and Revised BUP violate Education Law §§

2590-h[2-a](c), (d-1) and 2853[3](a-3)(3), as well as Chancellor’s Regulation A-190 and are

untimely for the proposed co-location of SACS into the Brandeis Campus for the 2011-2012

school year.

SECOND CAUSE OF ACTION

58. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 57

as if set forth herein.

59. Defendants abandoned the original proposal to co-locate SACS into the Brandeis

Campus, and have represented they no longer will rely upon the February 2, 2011 PEP vote that

approved said original proposal.

60. For the reasons set forth above, the revised proposal is invalid, pursuant to

Education Law §§ 2590-h[2-a](c), (d-1) and 2853[3][ a-3](3), as well as Chancellor’s Regulation

A-190 § II.B.5.

61. Consequently, there is no legal basis to support the co-location of SACS into the

Brandeis Campus for the 2011-2012 school year.

62. Based upon the foregoing, Plaintiffs seek an order enjoining the co-location of

SACS into the Brandeis Campus for the 2011-2012 school year.

WHEREFORE, Plaintiffs respectfully request that the Court grant judgment:

1. declaring that the Revised EIS and Revised BUP are violative of Educ. L. §§ 2590-h[2-a](c), (d-1) and 2853[3](a-3)(3), as well as the Chancellor’s Reg. A-190 § II.B.5, and untimely for the proposed co-location to take place in the 2011-2012 school year;

2. enjoining the co-location of SACS into the Brandeis Campus for the 2011-

2012 school year; and

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3. for such other and further relief in Plaintiffs’ favor as may be just and proper.

Dated: New York, New York June 20, 2011

PHILLIPS NIZER LLP

By: /s/ Jon Schuyler Brooks Jon Schuyler Brooks Marc Andrew Landis Meagan Zapotocky Attorney for Plaintiffs 666 Fifth Avenue New York, NY 10103 (212) 977-9700