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SUPREME COURT OF NEW YORK NEW YORK COUNTY
K.P, a minor, by his parent, LATYA DOWNS;
M.B., a minor, by his parent GLENDIDA INGRAM;
Jo.C., a minor, by her parent JOHN CLARK; Ja.C., a minor, by her parent JOHN CLARK; R.H., a minor, by his parent VICTORIA HALLS; L. J.B., a minor, by his parent ALEX TITRE; A.G., a minor, by his parent ESSENCE GARLIN; C.A., a minor, by his parent KARDYN VALERO; and OPPORTUNITY CHARTER SCHOOL,
Index No.: RJINo.:
Plaintiffs, -against-
NEW YORK CITY DEPARTMENT OF EDUCATION, and CARMEN FARINA, as Chancellor of New York City Department of Education,
Defendants.
PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
Whiteman Osterman & Hanna LLP
Attorneys for Plaintiffs One Commerce Plaza Albany, New York 12260 (518) 487-7600
Of Counsel: William S. Nolan, Esq. Tara MacNeill, Esq.
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TABLE OF CONTENTS TABLE OF AUTHORITIES
ii
PRELIMINARY STATEMENT
1
STATEMENT OF FACTS
3
ARGUMENT
5
PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION
5
A.
Plaintiffs are likely to succeed on the merits of each of their respective claims
5
1.
Disability Discrimination under federal, state, and local statutes.
6
2.
Plaintiffs are entitled to relief under Title II of the ADA,
7
i.
Qualified individuals with a disability,
8
ii.
Denied the benefits of a public program
9
iii.
By reason of disability
10
3.
Plaintiffs are entitled to relief under § 504 of the Rehabilitation Act
12
4.
Plaintiffs are entitled to relief under the New York Civil Rights Law § 40-c
13
5.
Plaintiffs are entitled to relief under the City HRL
14
B.
Plaintiffs will suffer irreparable harm in the absence of immediate injunctive relief
15
C.
The balance of the equities tips in favor of Plaintiffs
17 18
CONCLUSION
i
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TABLE OF AUTHORITIES
State Cases 1650 Realty Assoc., LLC v. Golden Touch Mgt., Inc., 101 A.D.3d 1016 (2d Dept 2012)
5
Arcamone-Makinano v. Britton Prop., Inc., 83 A.D.3d 623 (2d Dept 201 1)
5
Ayro Commc'ns, Inc. v. Jaymer Commc'ns Corp., 6 Misc. 3d 1022(A), (Sup. Ct. Kings County) 6
Bingham v. Struve, 184 A.D.2d 85 (1st Dept 1992)
5
Burmax Co. v. B & S Indus., Inc., 135 A.D.2d 599 (2d Dept 1987)
17
Doe v. Dinkins, 192 A.D.2d 270 (1st Dept 1993)
5
Gramercy Co. v. Benenson, 223 A.D.2d 497 (1st Dept 1996)
6
Heavy Cream, Inc. v. Kurtz, 146 A.D.2d 672 (2d Dept 1989)
16
Jacob H. Rottkamp & Son, Inc. v. Wulforst Farms, LLC, 17 Misc. 3d 382 (Sup. Ct. Suffolk County 2007)
16
Konishi v. Lin, 88 A.D.2d 905 (2d Dept 1982
16
Levin v. Yeshiva Univ., 96 N.Y.2d 484 (2001)
14
Ma v. Lien, 198 A.D.2d 186 (1st Dept 1993)
6
Mora v. Danka Office Imaging Co., 1999 WL 777888 (S.D.N. Y. Sept. 29, 1999)
14
Mr. Nat., Inc. v. Unadulterated Food Prod., Inc., 152 A.D.2d 729 (2d Dept 1989
6, 17
Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839 (2005)
5
Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551 (1st Dept 1982
5
Republic ofLebanon v. Sotheby's, 167 A.D.2d 142 (1st Dept 1990)
6, 17
See Karam v. County ofRensselaer, New York, 2016 WL 51252 (N.D.N. Y. Jan. 4, 2016) ...
12
Shariffv. Alsaydi, 2013 WL 4432218 (E.D.N. Y. Aug. 15, 2013)
13
Shariffv. Radamar Meat Corp., 2014 WL 1311563 (E.D.N. Y. Feb. 14, 2014....
13
State v. City ofNew York, 275 A.D.2d 740 (2d Dept 2000)
6
Tucker v. Toia, 54 A.D.2d 322 (4th Dept 1976)
5
Vig. v. New York Hairspray Co., L.P., 67 A.D.3d 140 (1st Dept 2009)
14
Willis ofN.Y. v. DeFelice, 299 A.D.2d 240 (1st Dept 2002)
16
Federal Cases
Bridgeport Guardians Inc. v. City ofBridgeport, 933 F.2d 1 140 (2d Cir. 1991)
11
Civic Ass 'n ofDeaf ofNew York City, Inc. v. Giuliani, 916 F. Supp. 622 (S.D.N. Y. 1996)
7, 10, 13
Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009)
7, 12
Galusha v. New York State Dept. ofEnvironmental Conservation, 27 F. Supp. 2d 117 (N.D.N. Y. 1998)
10, 15, 17
Henrietta D. v. Bloomberg, 331 F. 3d 251 (2d Cir. 2003)
10
John E. Andrus Mem., Inc. v. Daines, 600 F. Supp. 2d 563 (S.D.N. Y. 2009)
15
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Libbie Rehabilitation Ctr., Inc. v. Shalala, 26 F. Supp. 2d 128 (D.D.C. 1998)
15
Mhany Mgmt., Inc. v. Cty. ofNassau, 819 F. 3d 581 (2d Cir. 2016)
10
Register. Com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)
16
Sharif by Salahuddin v. New York State Education Department, 709 F. Supp. 345 (S.D.N. Y. 1989)
11
Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006)
7
Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003)
10
United States v. City ofNew York, 631 F. Supp. 2d 77 (E.D.N.Y. 2009)
11
Statutes and Regulations 29 U.S.C. § 794
7
42 U.S.C. § 12102(1)
8
42 U.S.C. § 12131(2)
8
42 U.S.C. § 12132
7
Education Law § 2850(2)(a),(c)
9
Education Law § 2850(2)(b)
2,9
Education Law § 2850(2)(f)
9
Executive Law § 292
13
N.Y.C. Admin. Code § 8-102
14, 15
N.Y.C. Admin. Code § 8-107(4)
7
N.Y.C. Admin. Code § 8-107(17)(a)
14
NYCRL § 40-c
7, 14
iii
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PRELIMINARY STATEMENT
Plaintiffs1 seek immediate injunctive relief against Defendants, the New York City Department of Education ("DOE") and Chancellor Carmen Farina ("Chancellor," collectively with the DOE, "Defendants") to prevent the imminent closure of their middle school, which is
part of Opportunity Charter School ("OCS") in Manhattan, and to allow OCS to enroll middle school students for the 2017-2018 school year. Defendants, who oversee OCS's charter, have refused to renew the charter for the OCS
middle school, claiming that the school is not an "academic success." Defendants reached this conclusion based on discriminatory criteria that has an insidious disparate impact on students with disabilities, including the Student Plaintiffs in this case. Defendants' definition of academic
success is premised upon the ability of OCS's middle school students, the majority of whom are
classified as students with disabilities ("SWDs"), to achieve predetermined proficiency rates on New York State English Language Arts ("ELA") and Math examinations.
Defendants' use of
this proficiency criteria in determining whether a school should continue to exist—especially as
school with a significant SWD population—is manifestly unfair to OCS and its students and violates a host of civil rights laws, including Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the New York Civil Rights Law ("NYCRL"), and the New York City Administrative Code.
1
The Plaintiffs in this action include OCS and several OCS students with disabilities: K.P, by his parent and
next friend, Latya Downs ("K.P."), M.B., by his parent and next friend, Glendida Ingrain ("M.B."), Jo.C., by her parent and next friend, John Clark ("Jo.C."), Ja.C., by her parent and next friend, John Clark ("Ja.C."), R.H., by his parent and next friend, Victoria Halls ("R.H."), L.J.B., by his parent and next friend, Alex Titre ("L.J.B."), A.G., by his parent and next friend, Essence Garlin ("A.G."), C.A., by his parent and next friend, Kardyn Valero ("C.A.") (collectively, the "Student Plaintiffs," and with OCS, "Plaintiffs").
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In fact, Defendants' own statistical data demonstrates an unlawful disparate impact on SWDs and charter schools with high levels of SWDs.
Specifically, Defendants' data proves
SWDs do not achieve proficient scores at the same level as non-disabled students and schools with high concentrations of SWDs generally cannot satisfy Defendants' proficiency rate goals. Thus, charter schools like OCS with an extremely high percentage of SWDs unfairly face insurmountable obstacles in seeking renewal of their charter from Defendants—they are set up to fail from the very beginning. Those students, such as the Student Plaintiffs, who attend charter schools with higher concentrations of SWDs are subject to non-renewal, closure, and forced transfer to another school, likely a traditional public school.
This is especially troubling given
the very purpose of charter schools, as established by the New York State Education Law, is to provide expanded school choice
and educational mediums
especially for those students
particularly "at-risk for academic failure ." Education Law § 2850(2)(b).
Yet, in administering
charter schools in New York City, Defendants utilize evaluation criteria that undeniably works to
exclude the very students the charter school system was intended to benefit the most. For this reason, Plaintiffs are entitled to declaratory and injunctive relief against
Defendants' practice of using discriminatory criteria in evaluating charter schools. In the present motion, Plaintiffs seek preliminary injunctive relief to enjoin Defendants from enforcing their
non-renewal decision based upon discriminatory criteria.
If Defendants' decision is enforced,
OCS will not be able to hold an admission lottery on April 25, 2017 to admit and enroll students for the 2017-2018 school year. Without participating in the April lottery, OCS's middle school
will be effectively shut down and operations will cease at the end of the current school year. OCS's current middle school students will be forced seek admission elsewhere, causing undue
2
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emotional anxiety and disruption to their academic development.
Accordingly, Plaintiffs seek
immediate relief to prevent such irreparable harm.
STATEMENT OF FACTS
Plaintiffs respectfully refer the Court to the Verified Complaint and its accompanying exhibits for a full statement of the relevant facts, which are briefly summarized here. OCS, a public charter school located in the Harlem neighborhood of northern Manhattan,
serves a diverse student population, more than half of which are students with disabilities. (Affidavit of William S. Nolan, sworn to April 19, 2017 ("Nolan Aff."), Ex. 1 Complaint ("Complaint")], 11 12, 18).
[Verified
The middle school at OCS, serving grades 6-8, is
comprised of approximately 60% students with disabilities. (Complaint, 1 18). Due to this large volume of special needs students, OCS has cultivated a unique academic environment,
specifically designed to provide its students with the social, emotional, and academic support they require. (Complaint, H 19-23).
In September 2016, OCS submitted a renewal application to Defendants, seeking to
renew its charter for an additional five-year charter term. (Complaint, 1 35).
After reviewing
OCS's renewal application, DOE issued a Renewal Report, containing multiple evaluations and conclusions regarding the academic success, effectiveness, and financial viability of OCS.
(Complaint, H 37-39).
Ultimately, despite OCS's established effectiveness and financial
viability, Defendants denied OCS's renewal application as it related to the middle school, concluding that the middle school did not demonstrate sufficient academic success. (Complaint, 11 39,
46-48).
Accordingly, unless Defendants reverse their decision pursuant to the
administrative appellate process or this court affords the relief requested herein, the middle school will cease operations as of June 30, 2017. (Complaint, 1 44).
3
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In deciding that the
OCS
middle school did not demonstrate academic success,
Defendants relied primarily on proficiency examination rates for OCS's students, as compared to students within CSD 3 and the city-at-large.
(Complaint,
51, 53).
Proficiency rates are
standardized and not customized to individual students' learning abilities—meaning SWDs are
systemically unable to achieve proficiency rates for their respective grade levels. Thus, schools like OCS with student populations containing high percentages of SWDs will invariably have lower proficiency rates. (Complaint, | 59).
Indeed, the schools with the highest percentages of
SWDs consistently have the lowest proficiency rates, and vice-versa. Nolan Affi, Ex. 2 ["Hawn Aff."],
(Complaint,
59-70;
16-20, Ex. A, Ex. B).
As outlined in the Verified Complaint, the statistical data overwhelming demonstrates
that schools with high percentages of SWDs within the student body are unable to meet Defendants' arbitrary proficiency goals. (Complaint, Tflf 59-71; Hawn Aff, Ex. B).
16, 18, 20, Ex. A,
Thus, the SWDs attending charter schools like OCS who seek the unique educational
benefits derived from a charter school education are exceedingly likely to be denied those benefits because their school cannot meet the arbitrary, unattainable standards set by Defendants. (Complaint,
71-76; Hawn Aff.,
21, Ex. A, Ex. B).
In the absence of judicial intervention, the middle school at OCS will be unable to hold
an admission lottery on April 25, 2017, and its current students must seek admission elsewhere for the 2017-2018 school year.
Current OCS middle school students are very anxious about
transferring schools—even the mere prospect of transferring—and are afraid to leave the welcoming, judgment-free environment at OCS. (Nolan Aff, Ex. 3 ["Parent Affs."], ^ 4-5). Although OCS initiated an administrative appeal on February 24, 2017, Defendants have not yet
issued a decision. For the reasons set forth herein, Plaintiffs respectfully request that the Court
4
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grant their motion for a preliminary injunction to prevent enforcement of Defendants' denial of OCS's
renewal
application insofar as
it related to
the middle
school pending
a final
determination on the merits of this action.
ARGUMENT
PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION
A preliminary injunction is warranted where, as here, Plaintiffs can establish a likelihood of the success of its claims on the merits, irreparable harm in the absence of the injunction, and
that the balance of the equities tips in Plaintiffs' favor. See Nobu Next Door, LLC v. Fine Arts Hous., Lnc., 4 N.Y.3d 839, 840 (2005); 1650 Realty Assoc., LLC v. Golden Touch Mgt., Inc., 101 A.D.3d 1016, 1018 (2d Dept 2012). The decision to grant or deny a preliminary injunction lies within the sound discretion of the reviewing court.
See Arcamone-Makinano v. Britton Prop.,
Inc., 83 A.D.3d 623, 625 (2d Dept 201 1).
A.
Plaintiffs are likely to succeed on the merits of each of their respective claims.
To establish a likelihood of success on the merits, Plaintiffs need only show a "prima facie showing of [their] right to relief." Tucker v. Toia, 54 A.D.2d 322, 326 (4th Dept 1976) ("It is enough if the moving party makes a prima facie showing of his right to relief; the actual
proving of his case should be left to the full hearing on the merits."); Doe v. Dinkins, 192 A.D.2d 270, 275-76 (1st Dept 1993) ("The plaintiffs need not demonstrate a certainty of success but rather, must make a showing of a likelihood of success on the merits."); Bingham v. Struve, 184
A.D.2d 85, 88 (1st Dept 1992); Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, 552 (1st Dept 1982).
5
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Further, the degree of proof required to establish a likelihood of success on the merits should be reduced where, as here, the "denial of injunctive relief would render the final judgment ineffectual." Republic ofLebanon v. Sotheby's, 167 A.D.2d 142, 145 (1st Dept 1990); accord Ma v. Lien, 198 A.D.2d 186, 187 (1st Dept 1993); State v. City of New York, 275 A.D.2d 740, 741
(2d Dept 2000); Gramercy Co. v. Benenson, 223 A.D.2d 497, 498 (1st Dept 1996). Indeed, "a preliminary injunction . . . may be granted even where the court has grave doubts regarding the
likelihood of plaintiffs success on the merits as long as the court finds that [in the absence of relief], any subsequent judgment may be rendered ineffectual." Ayro Commc'ns, Inc. v. Jaymer Commc'ns Corp., 6 Misc. 3d 1022(A), at *4 (Sup. Ct. Kings County) (internal punctuation and
citation omitted); Mr. Nat., Inc. v. Unadulterated Food Prod., Inc., 152 A.D.2d 729, 730 (2d Dept 1989) ("[Tjthe existence of a factual dispute will not bar the granting of a preliminary
injunction if one is necessary to preserve the status quo . . . ."). Here, in the absence of injunctive relief, OCS's middle school will close and its 200 students will be forced to seek admission to different middle schools scattered throughout New York City for the 2017-2018 school year. (Complaint, ^ 44, 109, 131, 152, 173).
Thus, any
final judgment rendered in this matter will be wholly ineffectual and meaningless, unless preliminary relief is awarded and the school is permitted to remain open.
Accordingly, as
outlined below, the Plaintiffs easily meet their burden with a prima facie showing of a right to
relief on each of their claims.
1.
Disability Discrimination under federal, state, and local statutes.
Persons with disabilities are protected from discrimination at each level of government and Plaintiffs seek relief against Defendants' discriminatory actions under multiple statutes.
First, Title II of the Americans with Disabilities Act provides that "no qualified individual with a 6
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disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of any services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
42 U.S.C.
§
12132.
Second, Section 504 of the
Rehabilitation Act prohibits the exclusion or denial of benefits from any program or entity receiving federal financial assistance. 29 U.S.C. § 794.
Third, the New York Civil Rights Law
provides that "[n]o personal shall because of . . . disability ... be subjected to any discrimination in his or her civil rights ... by any other person, or by any firm, corporation or institution, or by the state or any agency or subdivision of the state." NYCRL § 40-c(2).
Fourth and finally, the
New York City Administrative Code (the "City HRL") similarly prohibits providers of public accommodation from withholding accommodations, advantages, facilities or privileges from
persons with disabilities by reason of their disability. N.Y.C. Admin. Code § 8-107(4).
2.
Plaintiffs are entitled to relief under Title II of the ADA.
In analyzing a cause of action under Title II of the ADA, it must be noted that "[a]s a
remedial statute, the ADA must be broadly construed to effectuate its purpose." Civic Ass 'n of Deaf ofNew York City, Inc. v. Giuliani, 916 F. Supp. 622, 634 (S.D.N. Y. 1996). To state a claim under Title II of the ADA "a plaintiff must allege 1) that he is a qualified individual with a
disability; 2) that he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and 3) that such exclusion, denial of benefits or discrimination was by reason of his disability." Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006); Fulton, F.3d at 43; Civil Ass'n ofDeaf, 916 F.3d at 634. Indeed, Title II of the ADA "imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities." Toledo, 454 F.3d at 3 1 .
7
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Qualified individuals with a disability
i.
A plaintiff alleging a claim under the ADA must be "qualified" within the meaning of the statute and have a "disability" as that term is defined therein.
A "qualified individual" for
is a person with a disability who,
with or without reasonable
purposes
of the
ADA
accommodation, "meets the essential eligibility requirements for the receipt of services or participation in programs or activities provided by the public entity." 42 U.S.C. § 12131(2).
Here, there can be no doubt that the Student Plaintiffs and all other SWDs at OCS are
qualified to receive the services provided by Defendants and are otherwise eligible to attend New York City's charter schools. (Complaint,
137-146).
It is beyond question that there are no
eligibility or other entrance requirements explicitly excluding SWDs from attending charter schools in New York City. Moreover, each of the Student Plaintiffs have disabilities under the ADA. Pursuant to 42
U.S.C. § 12102(1), "'disability' means, with respect to an individual—(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarding as having such an impairment."
For the
purpose of establishing a disability, "major life activities" include, inter alia, "learning, reading, concentrating, thinking, [and] communicating."
Student Plaintiffs M.B., Ja.C, and A.G. cope
with learning disabilities causing below-average intellectual functioning, which substantially limit their ability to learn and perform academically.
(Complaint,
138, 141, 144).
Student
Plaintiffs R.H., L.J.B., and C.A. each cope with a speech and language impairment, substantially limiting their ability to communicate and develop their language skills. (Complaint,
145).
142, 143,
Student Plaintiff Jo.C. has an emotional disturbance, causing anxiety and emotional
dysregulation, thus precluding her from focusing in school and substantially impeding her
8
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academic progress. (Complaint,
6, 140).
Finally, Student Plaintiff K.P. is frequently absent
from school due to his brain tumors, which substantially affects his ability to attend school, focus or pay attention, and progress academically. (Complaint,
41, 38). Thus, each Student Plaintiff
is a qualified individual with a disability under the ADA.
ii.
Denied the benefits ofa public program
Charter schools, as an alternative to traditional public schools, are designed to provide students and parents expanded choices in the types of educational opportunities they may pursue.
New York Education Law ("Ed. Law") § 2850(2)(f).
Moreover, charter schools are meant to
"[ijmprove student learning" and "[ejncourage the use of different and innovative teaching
methods."
Ed. Law § 2850(2)(a),(c).
Most importantly, the development of charter schools
within New York State was intended to "[i]ncrease learning opportunities for all students, with
special emphasis on expanded learning experiences for students who are at-risk of academic failure." Ed. Law § 2850(2)(b). Thus, by design, the students who should reap the most benefit from charter schools are students like the Student Plaintiffs and their SWD peers at OCS—those
most at-risk for academic difficulty, who require alternative teaching methods, educational innovation, and more school choice.
Yet, here, Defendants utilization of proficiency rates has the plain effect of depriving the Student Plaintiffs and their peers of this very benefit.
In relying on proficiency rates to
determine charter school "academic success," Defendants have established an evaluation standard that schools like OCS—with high concentrations of SWDs—simply cannot meet. As a
result, the SWDs who attend schools designed to cater to their unique needs, like the Student
Plaintiffs and their peers, are denied the extensive benefits of a charter school education. Rather,
due to Defendants' discriminatory actions, the Student Plaintiffs and their peers will be forced to
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seek admission to traditional public schools, which are comparably ill-equipped to provide the
full panoply of resources and programs these students require.
iii.
By reason ofdisability
A claim for discrimination may be based on one of three theories:
1) intentional
discrimination/ disparate treatment; 2) disparate impact; and 3) failure to make reasonable accommodation. Fulton, 591 F.3d at 43.
The primary purpose of the ADA is to "assure
evenhanded treatment between the disabled and the able-bodied." Galusha v. New York State Dept. of Environmental Conservation, 27 F. Supp. 2d 117, 122 (N.D.N. Y. 1998) (internal punctuation and citation omitted).
Thus, where a statute is neutral on its face, but a plaintiff
shows a "significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices," the plaintiff has met its prima facie burden establishing a disparate impact claim.
Mhany Mgmt., Inc. v. Cty. of Nassau, 819
F.3d 581,617 (2d Cir. 2016). Furthermore, "the demonstration that a disability makes it difficult for a plaintiff to access benefits that are available to both those with and without disabilities is sufficient to sustain a claim for a reasonable accommodation." Henrietta D. v. Bloomberg, 331 F.3d 251, 277 (2d Cir. 2003).
"A plaintiff need not show the defendant's action was based on
any discriminatory intent." Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 575 (2d Cir. 2003).
As Plaintiffs' Verified Complaint demonstrates, Defendants' utilization of proficiency
criteria has a significantly adverse impact on SWDs, thus diminishing their ability to receive the benefits of a charter school education. (Complaint,
73-76, 90, 106-108, 148-152).
SWDs
routinely fail to achieve proficiency levels for their respective grade levels, such that schools
with more SWDs will have must greater difficulty achieving Defendants' proficiency goals.
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(Complaint, ^ 59-71; Hawn Aff.,
16-21, Ex. A, Ex. B).
DOE's own data regarding middle
schools within New York City—traditional public schools and public charter schools—proves that schools with high percentages of SWDs within their student populations rarely meet or exceed the CSD or City-wide proficiency rates for the ELA and Math exams. (Complaint,
71; Hawn Aff,
16-21, Ex. A, Ex. B).
59-
For example, of the 98 middle schools in New York
City with 28% or more SWDs, just 14 of them met or exceeded the CSD proficiency rate for the ELA exam. (Complaint, If 60; Hawn Aff., ^ 16, Ex. A). Indeed, of the 41 middle schools with
the highest percentages of SWDs within their student population, only 4 of those 41 schools met or exceeded the CSD ELA exam rate. (Complaint, ^ 63; Hawn Aff,
18, Ex. A). Within those
same 41 schools, only 2 schools met or exceeded the city-wide ELA exam rate. (Complaint,
1 64; Hawn Aff, f 20, Ex. A).
For traditional public schools, which are not subject to the
Defendants' Accountability Handbook, their inability to achieve the Defendants' proficiency goals is relatively inconsequential.
However, for a charter school like OCS, the Student
Plaintiffs, and their peers, their systemic inability to meet these goals results in school closure, transfer to traditional public school, and the denial of school choice. Courts have previously disapproved of the discriminatory use of test scores to permit access to programs or the provision of benefits. See, e.g., United States v. City ofNew York, 637 F. Supp. 2d 77, 131-32 (E.D.N. Y. 2009) (holding that the City's use of a firefighter's exam having an adverse effect on black and Hispanic candidates violated Title VII of the Civil Rights
Act); Bridgeport Guardians Inc. v. City of Bridgeport, 933 F.2d 1140, 1148-49 (2d Cir. 1991) (holding that a proposed use of an examination violated Title VII where statistical evidence demonstrated a disproportionate effect on black and Hispanic test-takers).
For example, in
Sharif by Salahuddin v. New York State Education Department (709 F. Supp. 345 (S.D.N. Y.
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1989)), the plaintiffs brought an action under Title XI against New York State's use of SAT scores to determine eligibility for merit scholarships. The court awarded preliminary injunctive
relief, concluding that the plaintiffs met their burden of establishing a prima face case of discrimination with statistical evidence demonstrating that when scholarship awards were based upon SAT scores alone, male students received significantly more scholarships than women. Id. at 355, 361-62.
The court concluded that "the State's practice of sole reliance upon the SAT
disparately impacts young women." Id. at 362.
Similarly, here, Defendants' reliance on proficiency scores disparately impacts SWDs because SWDs do not achieve proficiency scores at sufficient rates.
Where SWDs are
concentrated in a charter school, specifically designed to serve their needs, the school is doomed to fall below Defendants' unattainable standards for "academic success" and thus face non renewal, resulting in the exclusion of SWDs like the Student Plaintiffs and their peers from the charter school program. In sum, Plaintiffs have established a likelihood of success on the merits in showing a right to relief under the ADA as qualified individuals with disabilities who are being denied the
benefits of a charter school education by reason of their disability due to the policy or practice of Defendants.
3.
Plaintiffs are entitled to relief under § 504 of the Rehabilitation Act.
Claims under the Rehabilitation Act are analyzed under the same standards and rules as ADA claims. See Karam v. County ofRensselaer, New York, 2016 WL 51252, at *17 (N.D.N. Y. Jan. 4, 2016) ("Disability discrimination claims under the Rehabilitation Act and the NYHRL are
governed by the same legal standards as such claims under the ADA.") (internal punctuation and citation omitted); Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (noting that the ADA and the
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Rehabilitation Act "are identical" for purposes of analyzing a prima facie claim).
However, in
establishing a claim under § 504, the plaintiff must further show that the public entity engaging in discrimination receives federal financial assistance. Civic Ass'n of Deaf 916 F. Supp. at 638. Thus, where a plaintiff has established a right to relief under the ADA, provided the defendant is
a recipient of federal funds, the plaintiff has similarly established a claim under § 504.
Id. at
638. Plaintiffs established that Defendants' utilization of proficiency criteria in evaluating charter schools disparately impacts SWDs and precludes them from obtaining the benefits of the charter school system.
See supra Section 2.iii.
As the Defendants are recipients of federal
funding (Complaint, | 168), Plaintiffs have similarly established a likelihood of success on the
merits of their claim under § 504 of the Rehabilitation Act.
4.
Plaintiffs are entitled to relief under the New York Civil Rights Law §
40-e.
A NYCRL claim for disability discrimination is also governed by the same legal standards as ADA and Rehabilitation Act claims.
Shariff v. Alsaydi, 2013 WL 4432218, at *3
(E.D.N. Y. Aug. 15, 2013) ("The elements that establish liability under the ADA are sufficient to
state a claim under the New York Civil Rights Law."); Shariffv. Radamar Meat Corp., 2014 WL
1311563, at *5 (E.D.N. Y. Feb. 14, 2014) (same).
However, the scope of the NYCRL is much
broader in that it adopts by reference the definition of "disability" contained in the New York Human Rights Law ("NYHRL"), Executive Law § 292: "(a) a physical, mental or medical
impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques, or (b) a record of such an impairment, or (c) a
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condition regarded by others as such an impairment." See Vig. v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145 (1st Dept 2009) (concluding "the State HRL accords greater disability protection than the Americans with Disabilities Act"); Mora v. Danka Office Imaging Co., 1999 WL 777888, at *5 (S.D.N. Y. Sept. 29, 1999) ("The U.S. Court of Appeals for the Second Circuit has found that the definition of disability contained in the NYHRL is broader than the definition of disability found in the ADA.
Specifically, pursuant to the NYHRL, a plaintiff need not
demonstrate that his or her impairment substantially limits normal life activities in order to qualify as disabled."). Here, the Student Plaintiffs and their SWD peers at OCS have disabilities with the meaning of the NYCRL.
Learning disabilities, speech and language impairments, emotional
disturbances, and severe medical impairments are easily categorized as "impairments] . . . which
prevent[] the exercise of a normal bodily function or [are] demonstrable by medically accepted clinical or laboratory diagnostic techniques."
Thus, having already established that Defendants'
use of proficiency criteria has an adverse affect on SWDs and the Student Plaintiffs, Plaintiffs have met their burden of establishing a prima facie case under NYCRL 40-c.
5.
Plaintiffs are entitled to relief under the City HRL.
The City HRL includes its own statutory standards for evaluating a claim alleging a practice or policy has a disparate impact on a group protected under the City HRL.
Levin v.
Yeshiva Univ., 96 N.Y.2d 484, 491 (2001). The City HRL explicitly includes a disparate impact
cause of action for "plaintiffs who can demonstrate 'that a policy or practice of a covered entity . . . results in a disparate impact to the detriment of any protected group.'" Id. at 492, quoting N.Y.C. Admin. Code § 8-107(17)(a) (punctuation omitted).
Pursuant to § 8-107(4),
persons who provide public accommodation—including "governmental bodies or agencies" (§ 8-
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102(1))—may not "directly or indirectly . . . refuse, withhold from or deny" to any person with a
disability any "accommodations, advantages, facilities or privileges."
The City HRL has the
broadest definition of disability: "The term 'disability' means any physical medical, mental or psychological impairment, or a history of such impairment." N.Y.C. Admin Code § 8-
102(16)(a).
An impairment can include "[a]n impairment to any system of the body" or a
"mental or psychological impairment." § 8-1 02(1 6)(b). Again, in this case, the Student Plaintiffs and their SWD peers at OCS easily satisfy this
criteria in that each of them has some physical or mental impairment warranting their need for special education services.
Thus, in light of the statistical evidence detailed in the Verified
Complaint and discussed above, Plaintiffs have established that Defendants'
practice of
evaluating charter schools based upon proficiency criteria creates a disparate impact upon
SWDs, to their detriment, in denying them the benefits of a charter school education.
B.
Plaintiffs will suffer irreparable harm in the absence of immediate injunctive relief.
Irreparable harm is "an injury that is not remote or speculative but actual and imminent, and for which a monetary award cannot be adequate compensation." Galusha, 27 F. Supp. 2d at
122 (internal punctuation and citations omitted).
The primary injury to be suffered here in the
absence of the relief request in the present motion is the forced transfer of OCS's middle school students, namely the Student Plaintiffs and their peers. Irreparable harm may result from psychological or emotional trauma due to involuntary transfer. See, e.g., John E. Andrus Mem., Inc. v. Daines, 600 F. Supp. 2d 563, 572 (S.D.N.Y.
2009) (finding irreparable harm from the trauma of forced transfer and granting a motion for a preliminary injunction to enjoin the closure of a nursing home); Libbie Rehabilitation Ctr., Inc.
v. Shalala, 26 F. Supp. 2d 128, 132 (D.D.C. 1998) (issuing a preliminary injunction based upon 15
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the effects of physiological and physical transfer trauma on patients should they be required to relocate).
As demonstrated by the accompanying affidavits of the parents of the Student
Plaintiffs, the mere prospect of transferring to a school other than OCS has already caused a
significant amount of anxiety and disruption for the Student Plaintiffs. (Parent Affs.,
4-5).
The Student Plaintiffs are afraid to attend new schools that may not understand the scope of their disabilities,
may not offer them the resources and programs OCS provides, and—most
importantly—may not provide them with the community they've been welcomed into at OCS. (Parent Affs.,
4-6). The emotional trauma to be inflicted upon the Student Plaintiffs and their
peers in forcing them to transfer to alternative middle schools for the 2017-2018 school year
should be avoided at all costs. In considering whether a party will suffer irreparable harm, courts must also consider the nature of the injury a plaintiff will suffer if it loses on the preliminary injunction but ultimately
prevails on the merits. See Heavy Cream, Inc. v. Kurtz, 146 A.D.2d 672, 672 (2d Dept 1989). Here, if the Court does not preserve the status quo, OCS will not be permitted to partake in the
student lottery on April 25, 2017. (Complaint, If 42). Barring participation in the April lottery, OCS will not be able to enroll middle school students for the 2017-2018 year, be forced to lay
off teachers, staff, and administrators, and suffer a diminished reputation and good will in its community.
Courts regularly hold such inevitable consequences of closure to constitute
irreparable harm. See, e.g., Willis ofN.Y. v. DeFelice, 299 A.D.2d 240 (1st Dept 2002) (finding that loss of business constituted irreparable harm); Register. Com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (holding that the loss of reputation, goodwill and business opportunities
constitutes irreparable harm); Jacob H. Rottkamp & Son, Inc. v. Wulforst Farms, LLC, 17 Misc.
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3d 382, 388 (Sup. Ct. Suffolk County 2007), citing Konishi v. Lin, 88 A.D.2d 905, 905 (2d Dept 1982). Therefore, in the absence of preliminary relief, the middle schools at OCS will be effectively shut down.
To deprive the Student Plaintiffs and their peers of the immeasurable
benefits of OCS would not only adversely affect their academic development, but would cause additional emotional disruption and anxiety, neither of which is compensable with money damages in the event Plaintiffs later prevail on the merits of this claim.
C.
The balance of the equities tips in favor of Plaintiffs.
Where the potential "injury to be sustained by the plaintiff is more burdensome to it than the harm caused to defendants through imposition of the injunction," the balance of equities tips
decidedly in favor of the plaintiffs. Burmax Co. v. B & S Indus., Inc., 135 A.D.2d 599, 601 (2d Dept 1987); Mr. Nat., Inc., 152 A.D. at 730 (awarding a preliminary injunction where, in the absence of relief, plaintiff would suffer interference with ongoing business and defendant did not
show any significant hardship); Galusha, 27 F. Supp. 2d at 125 (concluding "[t]he balance of equities in this case clearly rests with the Plaintiffs [because] their harm is irreparable and
incalculable, [but awarding] preliminary relief will at most result in a proportionately small, if Moreover, where the plaintiff will suffer
not negligible" effect on the Adirondack Park).
irreparable harm and the defendant faces mere inconvenience and no great hardship, "the equities lie in favor of preserving the status quo." Republic ofLebanon, 167 A.D. 2d at 145; Burmax Co., 135 A.D. 2d at 600. Here, the equities lie in favor of preserving the status quo and permitting the OCS middle
school to remain operational pending a final determination in this litigation.
Primarily,
Defendants will suffer no significant hardship. The OCS middle school is a de minimis portion
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of Defendants' budget, and its continued operation does not otherwise affect Defendants' operation of New York City schools.
Conversely, Plaintiffs will suffer irreparable harm that is
simply not compensable with monetary damages.
As noted above, the closing of the OCS
middle school would have a drastic effect on its students.
OCS and its staff have cultivated a
close community within which the students feel welcome, included, and free to be themselves. (Complaint, ^ 20-33).
The mere prospect of transferring to a regular public school is
traumatizing for the Student Plaintiffs, creating anxiety and uncertainty among them. (Parent
Affs.,
4-5). The Student Plaintiffs receive immeasurable academic and emotional support and
guidance at OCS. (Complaint, Iflj 20-33, 107, 129, 150, 171).
To prematurely deprive the
Student Plaintiffs and their peers of an academic environment in which they thrive would be inequitable and unconscionable. Due to the exceedingly minimal disruption posed to Defendants by preliminary injunctive relief, the balance of equities must tip in favor of permitting the Student Plaintiffs and their peers
to continue to flourish and grow at the OCS middle school during the pendency of this litigation.
CONCLUSION For the foregoing reasons, as well as those set forth in the accompanying Verified
Complaint, Plaintiffs respectfully request that this Court enter an order (1) granting a preliminary injunction enjoining Defendants'
enforcement of their decision to
deny OCS's renewal
application insofar as it related to the middle school; (2) prohibiting Defendants from taking any action to interfere with OCS's conducting a lottery and registering middle school students applying to enroll for the 2017-2018 school year, pending a final determination by the Court in
the action; and (3) granting such other and further relief as this Court shall deem just and proper.
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Dated: April 19, 2017
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Whiteman Osterman & Hanna LLP
Albany, New York
r\ By:
William S. Nolan, Esq.
Tara MacNeill, Esq. Attorneys for Plaintiffs Once Commerce Plaza Albany, New York 12260
(518) 487-7600
4839-1510-1510
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