POSITION ON CHANGE TO CHANCELLOR'S ZONING REGULATION A180



March 24, 2004


Comments on Section 5 Submission #2003-4041



Joseph D. Rich
Chief Voting Rights Section
Civil Rights Division
Rm 7254 – NWB
US Dept. of Justice
1800 G Street, N.W.
Washington DC 20006 (this address for Fed. Exp. If US mail it's 950 Pennsylvania Ave., NW, Washington, D.C. 20530

Dear Mr. Rich:

Community School Board 27 requests an immediate investigation into the disenfranchisement of the representation guaranteed to minority voters under the Federal Voting Rights Act by the City of New York and the Department of Education when on February 17, 2004, without notice to the public, the voters or the thirty two elected community school boards, the Chancellor issued a revised Chancellor's Regulation A180 (Attachment 1) that eliminated the required vote of the local elected community school board on zoning changes currently in process throughout the city. This untimely action is in conflict with current and prior State Law. It creates a four month window where public representation is absent while the City freely engages in wholesale zoning changes unscrutinized by the affected local voters and the approval of their elected representatives.

It is incumbent on the Justice Department under Section 5 of the Voting Rights Act to prevent the premature implementation of a voting change just four and a half months prior to the scheduled July 1, 2004 implementation of the that change after which representation on zoning issues will clearly rest with the newly elected representation of the Community District Education Councils (CDECs). The new Chancellor's Regulation A180 eliminates the authority of duly elected representatives and thereby denies the representation guaranteed to minority voters in the covered boroughs of Brooklyn, Manhattan and the Bronx on local zoning and rezoning issues. It is clear from the Summary of Changes attached to the new A180 that the City has been engaged for a number of months in a large scale reorganization of schools in NYC that eliminates
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middle schools and reorganizes new Pre-K through 8 schools and new grade 6 through grade 12 high schools. This movement of students out of one grade configuration and/or school and into another is currently, and always has been, a zoning issue that for over thirty years has required the vote of the locally elected community school board. (Attachment 2 – Previous Chancellor's Regulation A180)

Zoning policy in the community school districts has always been the province of the elected community school boards. This power is derived from the power to set education policy for the schools under the jurisdiction of the local community school districts. (§2590-e.1.) The State Legislature clearly intended zoning policy to remain the province of the elected representatives of the local school districts since, the new law recently precleared by the Justice Department, specified in clear language that the new Community District Education Councils must approve zoning issues. The new Chancellor's Regulation A180 removes this power from the community's elected representatives just four and half months from the orderly and approved transition to the new CDECs. It does so while the Chancellor is engaged in unilaterally changing the grade configurations for a large number of schools in New York City without the approvals required of the current local school boards and just prior to the seating of the new CDECs.

When this secretly changed Regulation buried on the Department of Education's website with no notice or announcement was discovered by this Board and the media, the recently discredited attorney for the Chancellor explained that it is entirely appropriate to take over the power of the "lame duck local school boards" since few people voted for them anyway (Attachment 3). If legitimate voter representation is subject to the condition that the elected representative body must receive a specified percentage of votes over and above the number of votes required for election in order to be accepted as a legitimate representative and thus permitted to exercise the power of his/her office, it is not noted in any law we are aware of. It certainly is not a valid explanation of the denial of the community's right to participate through their elected representatives in the zoning changes the City is currently engaged in implementing.

In addition, State Law approved in two separate submissions by the Justice Department replaced the former NYC Board of Education with the Panel for Educational Policy a majority of whose members are appointed by the Mayor. This new body, contrary to the Mayor's public statements, is not simply an advisory body. It is empowered by State Law to establish educational policy for the schools in New York City (§2590-g.1.(a)) A change to Chancellor's Regulation A180 clearly, under State Law, should have been presented to the Panel for Educational Policy for approval prior to its implementation. This change is clearly a policy change as it has been in the past under the old Board of Education, a body that was required to approve new policies on zoning, the operation of parent associations, changes to citywide discipline policy, etc. While the Mayor could probably have forced a positive vote as he did on Monday, March 15, 2004 when three members of the Panel for Educational Policy were fired two of which were replaced with
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City employees just prior to a vote on a new controversial promotional policy. The fact that this newly changed policy was never put before the Panel for a vote prior to its implementation renders this new Regulation an unapproved, and therefore unauthorized and illegally implemented change.

In addition this changed Zoning Regulation is cause for additional concern regarding the following issues:
∙ It appears to transfer responsibility for zoning submissions to the Regional
Superintendent rather than the local community superintendent in conflict
with current State Law that maintains local school districts lines, states that district lines should not cross borough lines (§2590-b.3.(c)(1)) and maintains the position of Community Superintendents in each of the thirty-two local districts with fixed responsibilities and powers regarding decisions made at the local district level (§2590.-f). Note that the Kruger law suit settlement in June 2003 reinforced the above concepts.

∙ It replaces wording that referred to zoning changes within and between
"local community school districts" (consistent with State Law) with
wording that appears to expand the geographic entity for zoning changes
to the much larger regions all of which include three or four districts and some of which are inclusive of more than one borough (§2590-b.3.(c)(1)).

∙ It eliminates wording that placed Kindergarten children in their zoned
schools without explanation.

∙ It eliminates Free Choice/Open Enrollment provisions without
explanation.

∙ The Board of Education was previously the independent reviewing authority for an appeal of a zoning decision from the Chancellor or his designee. This authority does not rest with the replacement Panel for Education Policy. New A180 gives the Chancellor the authority to review appeals of his own decisions which in effect denies an independent appeals process to the current community school boards and the incoming CDECs.

To summarize:

∙ The new A180 is an undisguised attempt to eliminate community
representation in conflict with State Law and Section 5 of the Federal
Voting Rights Act prior to implementation of the approved voting change
that replaces elected Community School Boards with elected Community District Education Councils. Both community school boards and CDECs

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have the power to set policy for the schools under their jurisdiction (§2590-e.1)

∙ This elimination of elected authority and community representation on local zoning issues disenfranchises minority voters in the covered
boroughs and throughout New York City.

∙ New A180 is in effect for only four and a half months, a period during which the City is engaged in large scale unreviewed and unapproved zoning changes.

∙ The new A180 is an interim Regulation that was never reviewed and approved by the Panel for Education Policy as required by State Law - §2590-g.1.(a).

∙ It appears to change the geographic entity for zoning from the local school
district to the much larger regions in conflict with State Law §2590-b.3.(c)(1).

∙ There is no longer exists an independent review process to determine an appeal of a zoning decision made by the Chancellor or his designee.

∙ Since the Chancellor, in both the old and the new A180, has the authority to reject any zoning change submitted by the local school boards and since Corporation Counsel acknowledged the power to approve local zoning changes as belonging to the local school board, what pressing need existed to create new A180 other than an undisguised deliberate effort to eliminate the representative approval of the local community school boards on current zoning issues in conflict with Section 5 of the Voting Rights Act.

This Board has continued to approve zoning plans formed in collaboration with the Regional Superintendent and the Community Superintendent. We are submitting the Board's approved resolutions to the Office of Student Enrollment Planning and Operations (formerly the Office of Zoning) at the Department of Education although we have been advised that these submissions will be ignored. The zonings that this Board was in process of resolving have been in preparation for three years. We plan to continue to carry out our responsibilities under State Law until the last day of the Board's existence.

However, the actions of the Chancellor compel the Board to call upon the Justice Department and the members of the State Legislature to ensure that the public's right to representation on zoning and all other policy issues is protected throughout this transition period.

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Thank you for your immediate attention to this issue.

Very truly yours,



Steven S. Greenberg, President
Community School Board 27

SSG:JL:hw

C Assem. Speaker Sheldon Silver
Assem. Education Chairperson Steven Sanders
Senators, S. Maltese, M. Smith, A. Smith
Assemblymenbers A. Pheffer, Vivian Cook, Anthony Seminerio, Michele Titus
Congressmen A. Weiner, G. Meeks
City Council Speaker G. Miller
City Council Majority Whip L. Comrie
Councilmembers J. Sanders, Jr., J. Addabbo, D. Gallagher, A. Jennings
CSBs 1-32
Chancellor J. I. Klein
Doreen DeMartini
Kathleen Cashin
Rita Giaramita
Local Newspapers

ATTACHMENTS

1. New Chancellor's Regulation A180 - 2-17-04
2. Previous Chancellor's Regulation A180
3. Newsday article setting forth the reasons for the action of the Chancellor