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City argues appeal of closure suit before panel of skeptical judges

City lawyers asked a panel of appellate court judges today to overturn a lower court ruling that halted the Department of Education’s plans to shutter 19 schools.

But in oral arguments, the judges seemed warmer to the arguments of lawyers representing the city teachers union, who sued to stop the school closings.

If the appellate court overturns the initial ruling, the 19 schools could begin phasing out starting in the fall. If not, the city will have to wait to re-launch the school closing process until next year. Either way, the case will likely end up writing a sort of court-approved plan for how the city builds its case to shutter low-performing schools in the future.

The lower court ruling, handed down by Judge Joan Lobis in March, found that the city’s public process to close the 19 schools contained “significant violations” of state education law. At the time, city lawyer Michael Cardozo disputed Lobis’ conclusion that the city had not followed the law’s public notification and hearing requirements. But he did not argue with the justice’s ruling that the DOE’s statements analyzing the impact of shuttering schools on surrounding communities were inadequately detailed.

Today, city lawyer Alan Krams made essentially the opposite claim: He agreed with the lower court that the city violated public hearing requirements, but disputed the idea that the DOE produced inadequate impact reports for each of the schools.

Krams argued that state education law does not explicitly define how to measure the impact of the city’s school closure proposal on the surrounding community, and so that analysis should be left to the discretion of city education officials. The level of detail Lobis demanded in her ruling, Krams argued, is impractical for the city.

“The court held this process to a standard that is simply unworkable in this context,” Krams said. “This process cannot possibly work if the DOE is expected to find out how many students are in the French club and where they’re going to go….These are broad and diverse communities.”

Krams also argued that even though the city failed to comply with the law’s notice and hearing requirements, no one suffered harm because parents and teachers were able to obtain the information on their own and participated in the hearings.

“No one can look at this process and say the public didn’t get a chance to comment,” Krams told the judges. The city held hearings, which were frequently raucous and emotional, at each of the schools slated for closure throughout the month of January. The process culminated in a 10-hour-long citywide school board meeting during which hundreds of parents, teachers and students spoke out against the plans. The board then voted almost unanimously to close them.

Charles Moerdler, the lawyer representing the United Federation of Teachers, said the city and DOE made promises to seek more community feedback in closure decisions when they negotiated the renewal of the city’s mayoral control law last summer but had turned back on their word.

“What you have today, in plain and simple terms, is a renege,” Moerdler said. “There is no substantial compliance [with the education law]. There is no compliance.”

Judges frequently interrupted Krams, challenging points throughout his oral arguments. By contrast, the justices gave Moerdler relatively free range to make his points.

The appellate court’s ruling may hinge on whether the union has the right to sue on behalf of teachers and parents at the closing schools as well as a group of elected officials, including City Council Education Committee Chair Robert Jackson and Manhattan Borough President Scott Stringer. One of the justices told Moerdler she is “very concerned” with the question.

The city argued that the union has no right; teachers will not necessarily be harmed by the closures, Krams argued, and elected officials should not be able to sue on behalf of their constituents. Moerdler responded that union leaders are part of the school-based teams that did not receive proper notice of the meetings, and that the list of plaintiffs did include parents at schools slated for closure.

It’s unclear when the justices will rule on the appeal.

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