Victory for parents and kids in stage one of class size lawsuit!

Judge Barone of the NY Supreme Court issued decision (in pdf) this afternoon and denied the city's attempt to dismiss our class size lawsuit. brought in January by the UFT, Class Size Matters, the NAACP, and other parents and community groups.

The city had claimed that only the State Education Commissioner could rule on whether they violated the law when it came to class size. Inserted in the language of the law was a clause asserting that the “sole and exclusive remedy for any violation” was a petition to commissioner, and “the decision of the commissioner on such petition shall be final and unreviewable.”

This language was most likely the DOE’s sneaky attempt to ensure that they would never have to comply with the law, as they were convinced that the commissioner, then Richard Mills, would get them off the hook, as he had in many cases before.

Yet the judge found the attempt to box out the court was likely unconstitutional, and that the legislature must have meant that the commissioner had the final right of review over the details of the class size plan, not the city’s legal compliance, especially as this entire matter flowed out of the court’s decision in CFE.

The city’s other main argument was that our petition should have gone to the Commissioner first in any case.

The judge agreed with our attorneys that this would cause unnecessary delay and would "irreparably damage the children who will during the course of these proceedings be relegated to learning in the overcrowded conditions which the legislature sought to alleviate.”

Yet another victory for NYC parents and their children's right to have a quality education, and another slap in the face of DOE’s outlaw mentality.

The Judge wrote they will see the attorneys in court on July 26 for a pre-hearing conference to start determining the facts of the case, i.e. whether the DOE has actually complied with its plan and reduced class size.

The facts on this issue are clear; they have not.

Check out Class Size Matters summary of the facts in the case here; here is the legal petition; here is my affidavit with some nifty charts.

Our class size lawsuit gets its first day in court

This morning, Judge John Barone of the NY State Supreme Court in the Bronx heard arguments in our class size lawsuit against the city, which has failed to comply with state law and its own mandated class size reduction plan. Instead of reducing class size, as the state ordered in April of 2007 as part of the Contracts for Excellence, class sizes have risen at an unprecedented rate in city schools over the last two years.

In its papers, the city argued that the court has no role in deciding this matter, but right off the bat, the Judge rejected the claim that the sole authority over NYC’s compliance with the law should be reserved for the NY State Commissioner of Education. Judge Barone said that even if the state legislature wanted to deprive the court of jurisdiction that would be unconstitutional. He said he was “astounded” that any attorney would dare argue that the court doesn’t have the power to review this matter.

Very quickly the legal arguments became focused instead on whether the plaintiffs (including Class Size Matters, the UFT, NAACP, the Hispanic Federation, and assorted public school parents) should exhaust other administrative remedies first before coming to court, i.e. filing a complaint with the Commissioner.

Charles Moerdler, one of our attorneys from the firm of Stroock, Stroock and Lavan, recited a long list of legal precedents as far back as 1919, including decisions of the Court of Appeals, showing that the court has a right to step in before other administrative procedures have been exhausted. He provided important background information, explaining how as a result of the Campaign for Fiscal Equity decision, the city had been provided with more than $1.5 billion in state funds, with $760 million of that earmarked for class size reduction, on the condition that it reduce class size. The city submitted a plan to do so, promised it would spend that money appropriately, and did not. Thus it is in breach of contract, pure and simple. This is matter of law, not fact, and the court is the best place to hear a matter of law, he argued, especially as the Commissioner of Education has no legal background.

Moerdler also pointed out that going to the Commissioner now for a ruling could take months, and the courts have found that where there is a need for urgent action, as there is in this case, they should step in. Going the other route could consign thousands of children to irreparable harm and another school year of illegal and excessive class sizes that would deny them the fundamental right to an adequate education. Given that the Commissioner’s decision is likely to be appealed to the Court in any event, these children could have graduated from high school before the case was resolved.

The lawyer from the city’s Corporation Counsel, Emily Sweet, said that if the Judge did hear the case, the trial would be full of complicated and arcane matters involving budget allocations, DOE guidance memos and various funding streams, and that the Commissioner was more able to determine the facts of the case and understand these complex matters.

Yet despite the attempts of the city to confuse and obscure this issue with smoke and mirrors, including jargon-filled memos, abstruse powerpoint presentations, and talk of funding streams, the facts in this case are clear and undisputable: the DOE has not reduced class size, according to its own data. It has not adhered to its own state-mandated and binding class size reduction plan, and has not used the funding as required by law.

Judge Barone said that he would give both sides two weeks to submit more papers, but that he intended to rule shortly thereafter as to whether the case should proceed to trial. As he said the city's motion to dismiss is is an important motion in an important case. Cross your fingers and hold onto your hats!