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Court dismisses union's effort to force city to lower class sizes

The city teachers union will have to go to the State Education Department to protest rising class sizes in New York City, rather than skip straight to the courts, after an appeals court today dismissed a 2010 suit by the union.

The suit aimed at forcing New York City to dedicate a certain pot of state funds toward making class sizes smaller. The union charged that the city misused the funds, sending them to offset budget cuts rather than using them as they were intended — as a means of reducing class sizes. The NAACP also signed onto the suit.

But in a decision handed down today, an appeals court unanimously dismissed the union’s suit, saying that the union must take its complaints to the State Education Department before going to court. (Read the full decision below.)

The union president, Michael Mulgrew, vowed to continue protesting rising class sizes. “Lowering class size is a key issue for the parents and teachers of New York City and we intend to pursue it vigorously,” Mulgrew said in a statement this afternoon.

The appeals court did not address the heart of the disagreement: whether the city actually did, as the union charges, improperly fail to lower class sizes — and use Contracts for Excellence funds instead to stave off budget cuts. At issue is the state Contracts for Excellence funding stream, and in particular, a specific clause forcing New York City to write a plan to reduce class sizes.

What’s not disputed is that class sizes have creeped up for the last two years even as funds aimed at bringing them down have flooded into schools. Class sizes for the coming school year aren’t yet available, but all signs point to likely increases, which principals are preparing for. It’s not clear, however, that the Department of Education deliberately sought to prevent schools from lowering class sizes by sending funds elsewhere.

The Contracts for Excellence funds go straight to school principals, who can decide how to allocate them. The Department of Education argues that it’s possible for schools to invest the funds in exactly the kind of policies that should reduce class sizes — like hiring new teachers — and still fail to reduce average class sizes. Here’s an example offered by an official in 2009:

Take Bronx elementary school PS 57, which reported that it spent $190,000 to open new classes. Let’s be generous and say that the money could pay for three additional teachers. That could go a long way toward reducing class sizes in three grade levels. But would it necessarily lower the entire school’s average class size?

No. That would depend on how many students enrolled at the school, especially in grades and subjects that didn’t get new teachers. It would also depend on the rest of the school’s budget outlook, which, as school officials pointed out when they first released basic class-size data, has not been so good lately. And it would require the school to hire only inexpensive, and therefore inexperienced, teachers. In fact, PS 57 did see its average class size drop by more than one student. But another school, PS 54 in the Bronx, received $185,000 but saw class sizes shoot up on average by about 3 students per class.

Supporting the union’s argument, on the other hand, is a report by Juan Gonzalez of the Daily News suggesting that the city revised its class-size reduction plan in response to the tough budget climate. The report cites a letter from then-state education commissioner David Steiner signing off on the changes.

The letter, obtained by GothamSchools, signs off on the changes, with two caveats that are a bit too bureaucratic for me to summarize right now. Read the letter here.

In a statement, Chancellor Dennis Walcott said that the Department of Education has “remained committed to minimizing the growth of class size in all of our schools.” He cited as evidence the fact that the state approved the city’s Contracts for Excellence plans while the law was in effect. (It went off the books this past school year.)

The dismissal is the second legal defeat for the union and the NAACP in the last week. On Friday, a judge rejected the groups‘ suit asking courts to stop the city from closing struggling schools and giving charter schools district space.

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