Know When to Fold ‘Em

As has been widely reported (Times, Daily News, Reuters), Justice Feinman of New York Supreme Court recently dismissed the lawsuit (referred to as Steglich) aimed at seeking to stop the co-location of Upper West Success Academy Charter School in the Brandeis campus. Relying on an appellate court’s ruling in a separate lawsuit that the UFT brought against the DOE regarding class size, Justice Feinman found that the lawsuit should first have been brought as a petition to the state education commissioner. Only after receiving a ruling from the commissioner can the plaintiffs in that case bring their claims to the state courts. Lawyers call this the requirement to “exhaust one’s administrative remedies.” Read the decision »

This ruling has two effects, one immediate and one longer term.

The immediate effect is that the logic of the ruling applies to the much larger lawsuit that the NAACP and the UFT brought against the vast majority of charter co-locations in May (the lawsuit is known as Mulgrew). In July, the judge denied the UFT’s motion for a preliminary injunction which would have prevented the schools from opening. The UFT unfortunately didn’t move to end the lawsuit then. Now, with Steglich having been dismissed, it is clear that Mulgrew is subject to being dismissed for the same reasons. All that is needed is for the City or the charter schools to make that motion. One hopes that this formality (and additional waste of time) won’t be needed and the UFT will heed the gambling dictum made famous by the silver-haired fox.

The longer-term effect is that in the future, all co-location complaints will have to go to the commissioner first for his ruling. This is good because the commissioner better understands these issues and is better positioned to decide these disputes. He has taken an objective approach to these disputes over the past year, sometimes deciding in favor of the co-location and sometimes not. Moreover, the petition process is a bit less formal in nature and generally doesn’t eat up as much resources in lawyer time and dollars. Finally, while people can appeal the commissioner’s decisions in state court, the fact is that most of the decisions will be reviewed under the legal standard of whether the commissioner’s decision was arbitrary and capricious. This is a very hard standard to meet, which means, in turn, that court challenges will likely be far and few between.

We’re glad that parents will be able to send their children to the school of their choice and school leaders can get back to work in the classroom instead of the courtroom.