Discriminatory and Destructive Precedents Set by PS 15 and PS 188/94 State Education Commissioner Appeals

Over the last week we have heard and seen tremendous outrage over Chancellor Klein’s evoking of emergency powers, disregarding Commissioner Steiner’s ruling in the PS 188/94 appeals case. Local and State politicians have had no fear, and have minced no words, making clear their opposition to Klein’s abuse of power in evoking an emergency clause to allow Girls Prep Charter to stay in the PS 188 building despite the impact on the children with Autism at the school. Klein has recently backed down from this position, now stating he will not use emergency powers, but rather look for an alternate place, for at least a year, for Girls Prep Charter School. In a press statement the DOE continues to claim that there is more than enough room in the PS 188/94 building and maintains not a single child with special needs will be displaced. The DOE’s lack of understanding for and consideration of children with special needs continues to be astounding. For both schools, and for potential co-location sites across the city, what has been lost in the fray over these process and power positions, are the destructive and discriminatory precedents set in Steiner’s decision to dismiss the PS 15 appeals case completely, and his ignoring of the merits in the PS 188/94 case he supported.

Both appeals targeted two distinct areas of complaint. First, that the DOE did not follow proper procedures as dictated by the change in school utilization portion of the Mayoral Control Law, particularly in terms of meeting the standard and intention of the law regarding the Educational Impact Statements, which was further defined by the Mulgrew decision. Secondly, both appeals made substantive complaints, detailing how the DOE made arbitrary decisions when it came to building and space utilization and allocations; largely ignoring the needs and legal mandates of students receiving special education services as well as disregarding the space needs of all students.

The DOE was required to respond to the complaints laid out in the parents’ appeals, and their claims were shocking. In their responses the DOE charged that even though the law requires outreach efforts to maximize public notification and input, they are not required to provide Educational Impact Statements to parents other than through the internet, email and principal notification. Steiner’s agreement with these claims now limits the DOE’s burden to notify the public. Considering many of these co-locations are targeted in isolated, lower socio-economic, under resourced neighborhoods, the majority of parents and community members will not be notified of potential co-locations and the impact on their children, as was the case in the PS 15 community.

Further, regarding Education Impact Statements, the DOE claimed they were not required to specifically outline a space plan for the co-located schools or detail the impact specifically. Steiner agreed with this logic citing the PS 15 EIS stated there may be some impact on enrichment programs and non-mandated services, but that the DOE felt there was more than enough space in the building and that a space plan would be created later with the schools’ building council. To be clear, Stiener used a document of questionable validity to justify his ruling. For this and many other reasons, these justifications are unacceptable. This decision flies in the face of the Mulgrew decision and permits the DOE to provide vague and self-serving assessments and justification of school space and impact. Under this decision, Educational Impact Statements must only state the DOE’s assessment of available space in the building (based on faulty utilization and instructional footprint allocations) and claim that there is enough. They are not accountable for in any way explaining where affected programs will go. For PS 15 this has meant the loss of a science lab, special education office, and several classrooms forcing multiple out-of-classroom providers (mandated and non-mandated) to share space, often at the expense of student privacy and optimal learning conditions. It has meant loss of enrichment and the down-scaling of intervention programs because there are no rooms in the building that are not programmed throughout the day, including the cafeteria, gym, and auditorium. None of these specifics were required to be included, according to the DOE and Steiner, in the EIS, and apparently none of these losses are considered significant enough to define the DOE’s judgment as arbitrary. One wonders if Steiner, Bloomberg, or Klein would have allowed these impacts on their own children.

Among the litany of alarming assertions by the DOE, upheld by Steiner, none is more striking than the claim that designated space is not required for special education related services and that stairwells and hallways are perfectly acceptable spaces for students to receive related services. Steiner did not even address the substantive issues regarding these claims in his decision. His only attempt to address the parents’ challenging the merits of the DOE’s co-location proposal was to say that he, “…could not conclude that the (DOE’s) decision was arbitrary…(because the) DOE denies the assertions and contends…the building can support both schools.” For students at PS 15 this will mean speech in the backs of classrooms or in shared classrooms and physical therapy, occupational therapy, vision and hearing therapy in hallways, stairwells, and corners contrary to the students’ IEP mandates. Is this putting Children First, or Charters First?

In the DOE’s appeal response they state, “Sharing space is central to New York City’s strategy for school improvement.” This “strategy” sets up a competition for scarce space and resources where special education students will apparently be on the losing end. As we have seen in multiple co-location proposals, PS 188/94 included, special education children can simply be moved and shuffled around to benefit charter school access to public school buildings. It begs the question: what was the intention of the state law allowing charters access to public school space for lease? It is doubtful the intention was to take utilized space away from existing public school children in order to provide essentially free space and significant start up cost savings to charter schools.

The claims by the DOE in both appeals cases, and the written decisions by Steiner, leaves parents, and teachers, at odds with the DOE, while they try to advocate for the services their children need and deserve. Destructive and discriminatory precedents have now been set by these appeals: the DOE can engage in a public hearing process where no one is actually heard and meaningful consideration is not given. In the PS 15 case alone, there were over 1,700 written and oral comments given opposing the continued co-location in the building, contrast that with less than 200 in favor of the proposal, yet the proposal was approved and upheld with no regard for the true impact on PS 15 students, particularly the special education population at the school which makes up over 30% of the student body. The precedent has been set that no significant attempt to notify the school community is required, nor is any consideration for the delivery methods that would best serve the community in question. The precedent has been set that Educational Impact Statements need only explain what may be affected in a school due to a co-location with a claim by the DOE that surely, there is enough space no matter what the students, teachers, parents, or the numbers show. The precedent has been set that space need not be allocated for special education services and children can get these services in hallways, stairwells, and in the backs of classrooms regardless of health and safety hazards or what would be the optimal learning conditions for the child as dictated by their IEP. The precedent has been set that space for intervention and enrichment programs, the kinds of programs that every child deserves, do not require allocated space.

Much must be done as a result of these appeals. Policymakers on the local and state level must improve legislation regarding change in school utilization laws and the law that allows charters access to public school buildings. Changes must be made to the DOE’s bluebook utilization formula and instructional footprint to include proper space allocations for our children, particularly children with special needs. Ultimately however, the only truly meaningful policy decision to protect public education and our children will be the termination of mayoral control. Unfortunately, our politicians have not had the courage to stand up to Bloomberg and the wealthy forces behind the education deform movement and take any meaningful action, instead they have lined their coffers with hedge fund and charter school money and allow these discriminatory practices and policies to continue at the expense of our children.

Parents and teachers must unite and fight the forces that seek to dismantle public education, which is happening at the expense of our neediest and most vulnerable children. Make no mistake, what has taken place at PS 15 and at PS 188/94 will now be precedent for far reaching education policy in this city. With the charter school cap lifted, we will see a growing number of co-locations and we will continue to live in an era of governance by lawlessness, where disfunctionality and discrimination are common place, where charters and profiteers come first instead of our children and where mismanagement and neglect of real public schools become the hallmark of this Mayor’s education reform agenda.