Cortes v. Mujica

Decision Date28 December 2016
Citation54 N.Y.S.3d 499,55 Misc.3d 914
Parties In the Matter of Nidia CORTES, Virgil Dantes, AnneMarie Heslop, Curtis Witters, on behalf of themselves and their children, Petitioners, v. Robert MUJICA, Director, New York State Division of Budget; New York State Division of Budget, MaryEllen Elia, New York State Commissioner of Education, New York State Education Department, Respondents.
CourtNew York Supreme Court

Education Law Center (David G. Sciarra, Esq. and Wendy Lecker, Esq., of Counsel), Newark, attorneys for petitioners.

Harris Beach PLLC (Karl J. Sleight, Esq. and Aubrey A. Roman, Esq., of Counsel), Albany, attorneys for respondents Robert Mujica and New York State Division of Budget.

Alison B. Bianchi, Acting Counsel and Commissioner for Legal Affairs (Aaron M. Baldwin, Esq., of Counsel), Albany, attorney for respondents, MaryEllen Elia and New York State Education Department.

KIMBERLY A. O'CONNOR, J.

Petitioners Nidia Cortes, Virgil Dantes, AnneMarie Heslop, and Curtis Witters, on behalf of themselves and their children (collectively "petitioners"), commenced this CPLR Article 78 proceeding seeking an order of mandamus directing respondents Robert Mujica ("Mujica"), Director, New York State Division of Budget, and New York State Division of Budget ("DOB") (collectively "DOB respondents") to comply with the law and immediately release the 20162017 transformation grant funds to respondent New York State Education Department ("NYSED"), and directing respondents MaryEllen Elia ("Elia"), New York State Commissioner of Education, and NYSED (collectively "NYSED respondents") to distribute those funds to the nine schools removed from the "persistently failing" schools list, including Roosevelt High School, JHS 80 Mosholu Parkway, and William S. Hackett Middle School—the schools attended by petitioners' children.1

The DOB respondents have answered, and move for an order dismissing the petition, in its entirety and with prejudice, on the grounds that: (1) petitioners lack standing to bring their claims; (2) the proceeding is time-barred; (3) the DOB's responsibilities in this matter are not merely ministerial; and (4) the determination that the school districts containing the nine schools removed from the "persistently failing" schools list are ineligible to receive transformation grant funding for the 20162017 school year and that making the transformation grant funds available to those removed schools for the 20162017 school year would be contrary to law was not arbitrary and capricious, and was made in accordance with the plain language of the transformation grant appropriations and related spending plan. The DOB respondents further argue that the DOB cannot be compelled to allocate funds in violation of duly-enacted appropriation statutes, and that directing the DOB to make the transformation grant funds available to the nine removed schools would intrude upon policy-making and discretionary decisions that are reserved to the legislative and executive branches. Petitioners oppose the motion.

The NYSED respondents answered the petition, opposing only that portion of the requested relief seeking to compel NYSED to immediately release the transformation grant funds for the 20162017 school year to the removed schools, if such funds are unfrozen by the Court or released by the DOB, but did not respond to the motion. Oral argument on the petition and motion was held on September 30, 2016, and, on consent of the parties, all issues raised in the petition, motion, and answering papers were addressed. At argument, petitioners withdrew their request to have NYSED immediately release the 20162017 transformation grant funds to the subject schools, accepting NYSED's position that the funding, if released by the DOB, would continue to be provided on a reimbursement basis. Petitioners also requested an opportunity to submit written opposition to the procedural arguments in the motion, and the Court set a briefing schedule, making this matter returnable on October 6, 2016.2 The papers are now fully submitted, and all issues have been addressed and briefed.

BACKGROUND

In an effort to aid in the improvement of the lowest performing public schools in New York State, the Legislature, in April 2015, enacted new section 211–f of the Education Law relating to the "takeover and restructuring [of] failing schools" ("school receivership law") (see L. 2015, ch. 56, part EE, subpart H, § 1). The school receivership law, which took effect April 13, 2015, mandates, among other things, that the NYSED Commissioner designate, as "persistently failing," any school that has been identified under the State's accountability system to be among the lowest achieving public schools in the State for ten consecutive school years, measured by student achievement and outcomes and a methodology prescribed in the Commissioner's regulations,3 and denominated a "priority school" for each applicable year from the 20122013 school year to the 20142015 school year or a "priority school" in each applicable year of such period, except one year in which the school was not identified because of an approved closure plan that was not implemented4 ; a "School Requiring Academic Progress Year 5"; a "School Requiring Academic Progress Year 6"; a "School Requiring Academic Progress Year 7"; and/or a "School in Restructuring" (see Education Law § 211–f[1][b] ).

Under the school receivership law, the superintendent of a school district containing a "persistently failing" school is vested with the powers of a receiver, and a school district that has a NYSED–approved intervention model or comprehensive education plan in place is given an additional school year to make demonstrable improvement in the school's performance, based upon the performance metrics and goals in the school's model or plan (see Education Law § 211–f [1 ][c][i], [6] ). At the end of that year, NYSED is required to conduct a performance review, in consultation and cooperation with the school district and school staff, to determine if a school's designation as "persistently failing" should be removed, if the school should remain under continued school district operation with the superintendent vested with the powers of a receiver, or if the school should be placed into independent receivership (see Education Law § 211–f[1][c] ).5

The school receivership law was supported by a $75 million appropriation in the 20152016 State Budget (see L. 2015, ch. 53, as amended by L. 2015, ch. 61), which was reappropriated in the 20162017 State Budget (see L. 2016, ch. 53). The legislation authorizing the appropriation provides that "school districts containing a school or schools designated as persistently failing pursuant to [Education Law § 211(1)(b) ]" are eligible to apply for "transformation grants ... pursuant to a spending plan developed by the [C]ommissioner of [E]ducation and approved by the [D]irector of the [B]udget" (L. 2015, ch. 53, as amended by L. 2015, ch. 61, and reappropriated by L. 2016, ch. 53). According to the appropriation legislation, transformation grants are intended to support academic, health, mental health, nutrition, counseling, legal and/or other services to students and their families; extended learning time for students; the expansion, alteration or replacement of the school's curriculum and program offerings; professional development of teaching and administrative staff; and mentoring of at-risk students, among other things (see id. ).

The appropriation legislation vests the NYSED Commissioner with the authority to confirm that grant supported activities are aligned with a school's approved intervention model, comprehensive education plan, or school intervention plan, and the authority to determine the amount of such grants (see id. ). The legislation further provides that "for each of the persistently failing schools, the maximum annual grant in the 20152016 and 20162017 school years [will] be established by [NYSED] ... in the spending plan for such grants," and that "[a] portion of such grants [will] be available by July 1 of each such school year" (id. ). The appropriation is set to lapse on March 31, 2018 (see L. 2016, ch. 53).

In July 2015, the NYSED respondents issued a press release announcing that Commissioner Elia had identified 124 "struggling" and 20 "persistently struggling" schools6 in the State (referred to hereafter as "failing" or "persistently failing" schools), and indicating that the "persistently [failing]" schools would be eligible for a portion of the $75 million in State aid to support and implement improvement efforts over a two-year period. In October 2015, NYSED submitted, for the DOB Director's approval, a "Persistently [Failing] Schools/Transformation Grant Expenditure Plan" ("spending plan") for the period of July 1, 2015 through March 31, 2017. The final spending plan was approved by the DOB Director on October 15, 2015, and the DOB initially made $37.5 million of the transformation grant appropriation available to NYSED for its "Persistently [Failing] Schools Transformation Grant" program.7

NYSED's spending plan, approved by the DOB, identified 20 schools, including the three schools attended by petitioners' children, as "persistently failing" under Education Law § 211–f, rendering those schools eligible to apply for transformation grants. Pursuant to the spending plan, transformation grants would be made available to those 20 schools "to support and implement turnaround efforts over a two-year period." The plan set forth a "[t]wo-[y]ear [t]otal [t]ransformation [a]llocation" for each school, which schools could "use ... over one year or two years," and provided that "schools should anticipate receiving no more than 50 percent of the [t]ransformation [a]llocation for the 2015[20]16 school year," unless a request for accelerated funding was made, and approved, to allow funds "otherwise dedicated to the second year [to] be advanced to the...

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