Riding high from their school closing victory in the Supreme and Appellate Courts last year the UFT and its co-plaintiffs started to see that their interpretation of these decisions were not the same as the DOE’s. Seeing that the DOE was going ahead with its charter co-locations in most of the 19 schools prevented from closing, UFT counsel sent the court a letter on May 28, 2010 complaining that the DOE was not following the Court’s decision.
Specifically UFT counsel asked for a conference with all sides to stop the co-locations arguing that the invalidated PEP vote also prevented the co-locations. The DOE appeared to believe that the decision only invalidated the PEP vote that closed the schools.
A conference was held and on July 14, 2010 a letter “agreement” was submitted, which, incorrectly relied upon by the UFT, seemed to answer their concerns. The letter agreement laid out a plan to provide services to the affected schools.
As usual the UFT claimed a great victory and everyone went on their merry way until it became clear that the DOE had not given up its plan to close most of the schools originally planned and co-locate charter schools.
The UFT cried foul and based their claim of swindle on the letter agreement which they started to call a stipulation. Few, if any of the services “promised” in the letter agreement were provided or were provided so late in the year that they could not prevent the closing of the schools or the co-locations.
By May 2011 the UFT assembled its prior co-plaintiffs and decided to commence a lawsuit with a request for a temporary injunction to stop the DOE from the closings and co-locations. A temporary restraining order was consented to by all parties on June 21 pending a decision by the Justice Paul Feinman.
Then, on July 21, 2011 Justice Feinman issued his opinion right after the State permitted the DOE to close the schools. He denied the injunction paving the way for DOE celebration.
What went wrong?
As hinted at above the bottom line, relied on by Justice Feinman, was that the DOE never really agreed to provide the services of the letter agreement as a condition before closing the schools. Justice Feinman relied on Joel Klein’s affidavit which clearly claimed that if there were any conditions he never would have agreed. Adam Ross, a UFT attorney, admitted, “Thus, while Defendants are correct that the Agreement does not foreclose the DOE from ever seeking to close these schools, their contention that their promise to provide specified supports for these schools in the 2010-2011 school year (Klein Aff., pp6) is completely irrelevant to any further decision to close is incorrect.”
Feinman made clear in his decision that there was never any representation, implicit or otherwise, on which the UFT could reasonably rely that the DOE waived any of its authority to co-locate or close the schools. To grant the injunction, Feinman ruled, would relegate students in these allegedly failed schools to an inferior education.