March 29, 2010
We should rejoice when the judiciary checks illegal use of political authority. That’s what happened in Mulgrew v. Board of Education, which curtailed plans by the New York City Department of Education to close 19 schools it had identified as failing. The court ruled that the city violated notice and hearing requirements and that the DOE failed to “provide any meaningful information regarding the impacts on the students or the ability of the schools in the affected community to accommodate those students” as required by state law.
But the decision should also be greeted with sadness. That the city should so brazenly violate the letter of the law is contemptible. That the identified schools, hobbled by instructional incompetence or supervisory negligence, will continue to maltreat students is equally appalling.
Mulgrew will be difficult to overturn on appeal. The decision is squarely based on facts admitted by both parties and established law about Environmental Impact Statements, the direct legal precursor to the new requirement for Educational Impact Statements issued by the DOE to justify school closings. Again and again, the court castigates the DOE for its actions, finding “significant violations of the Education Law.”
The DOE posted Educational Impact Statements for each closure on its Web site despite a statutory requirement of hard copy distribution. It unilaterally determined the time, place, and manner of hearings despite the requirement that these proceedings be jointly undertaken with parent bodies. In its arrogance, the DOE even argued that its handling of the procedures was outside court review, an argument not only rejected by the court but ridiculed through a highly unusual footnote pointing out a typographical error in that section of the DOE’s brief. Further, implying that the DOE made initial decisions about which schools to close in bad faith, the court ordered the city to “to re-examine in good faith the various programs in the schools they are preparing to close, and obtain meaningful community involvement, as required by the Education Law.”
This underlying accusation of bad faith on the part of Chancellor Klein and Mayor Bloomberg permeates the opinion. “[The DOE's] very arguments would appear to trivialize the whole notion of community involvement,” the court wrote. Reviewing the mayor’s attempted nullification of statutory obligations he doesn’t like, the decision states, “That entire legislative scheme must be enforced, and not merely the portion extending mayoral control of the schools.” Also scorned is the DOE’s hubris
that the lack of compliance is of a de minimus nature and should be dealt with only prospectively. Furthermore, they suggest that even prospectively, rather than being ordered to comply with the Education Law, they should be permitted to develop their own guidelines for compliance with the statutory requirements, revising the chancellor’s existing regulations.
What will be Mulgrew‘s impact? If reversed on appeal, that will be a new cause for sadness. But even if upheld, it appears that the city’s students, at least in the short term, will still be denied quality education under the rule of law. As of now, the city says it will not only appeal the decision but go forward with high school placements not directly related to the closed schools, continue to place students in the schools created as replacements despite law regulating co-location, and attempt to dissuade students from attending the schools given a reprieve. In plain terms, the DOE plans to let these schools continue to sink, keeping a shell staff and student body for those who didn’t get the message that they are passengers on an educational Titanic.
Which brings us to the enduring question of why these schools have to die. It is possible that each targeted school, individually and thoroughly analyzed, is beyond saving or too difficult to save. Maybe their present and future students (including, according to the court, infants in closed child care programs) would do better elsewhere with little or no adverse impact on other schools. But perhaps aid has been withheld in an intentional, unethical strategy of triage to score political points through headline-grabbing closures rather than the slower, less dramatic work required for true instructional success. Those are the very questions that the DOE failed to address in its sketchy, boilerplate Educational Impact Statements. Those are the questions that deserve good faith answers now.