Gotham Gazette

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What Meals Should City Schools Provide, and When?

lunch for learning electeds

CMs Dromm, Kallos, & King, Public Advocate James, & advocates (photo: @Lunch4Learning)

“All I know is that when I would tell him that I’m hungry, he would say that he doesn’t have money to buy me something to eat,” says 17-year-old Althea of growing up with her father. She describes getting food at her house as a “gamble,” adding, “Sometimes the school lunch was the only meal I would eat for the entire day.”

For many young people in New York City, like Althea, the only meals they eat are the free breakfasts and lunches provided to them at their schools. “We’re the richest city in the history of the world,” says Joel Berg, executive director of New York City Coalition Against Hunger. “We have 53 billionaires and half a million children who cannot afford enough food.”

While New York City schools provide free breakfast to all students and free lunch to middle school students and others who qualify financially, there is controversy over exactly when breakfast should be available and whether free lunch should be made universal. As negotiations lead to a final fiscal year 2016 city budget by the end of June, school meal policies and the funding of those meals are again key parts of the discussion.

Advocates and elected officials are asking for the City to do more – they want school lunches to be free for all students, no matter family income, and for students to be able to eat their breakfasts in the classroom, in what is known as “breakfast after the bell.”

The need for free school meals is particularly urgent in New York City. About 20 percent of the children in the city go to food pantries and soup kitchens, according to Rachel Sabella, director of government relations of Food Bank for New York City. As Mayor Bill de Blasio often says, 46 percent of New Yorkers are living below or near the poverty line.

At the moment, students can register for a free lunch if their family income is below 130 percent of the poverty level or if they fall into other categories such as receiving food stamps, or being homeless or in foster care. About 75 percent of New York City’s public school students qualify for free or reduced-price lunches. The US Department of Agriculture reimburses schools for each breakfast and lunch they serve that meet certain nutritional criteria.

Advocates say that universal free school meals would help the large number of students in the city whose family incomes are slightly higher than the qualifying threshold but still live paycheck to paycheck. “The eligibility threshold is uniform nationally but the cost of living is not,” explains Janet Poppendieck, Policy Director of New York City Food Policy Center and author of Free for All: Fixing School Food in America.

Universal free school meals would also benefit families that do qualify for the free or reduced price program but do not fill out the required paperwork, either because they find it to be too complicated or because of a language barrier. In some cases, undocumented immigrants do not fill out the paperwork, fearing it might be used against them by immigration services.

In New York City, about a third of the students who qualify for free or reduced-price lunches don’t eat those meals. Many students do not take them due to stigma, not wanting to be seen as poor. As students get older, the number of students opting for free meals decreases, according to Liz Accles of Lunch for Learning, a coalition-led campaign that includes community organizations, youth advocacy groups, and student groups and has allied with elected officials like Public Advocate Letitia James.

While about 80 percent of eligible elementary school students eat free lunches, the number drops to about 60 percent in middle school and 30 percent in high school. “A primary reason for that drop is the poverty stigma that is associated with the program,” Accles explains.

Students are often teased or bullied for eating free lunches, advocates say. “A lot of the kids that are ashamed to get on line or afraid or anticipate that there will be problems just sit out and don’t eat anything during the day,” says Accles. Supporters of universal school meals say that this stigma would be eliminated if schools provide free meals to all students regardless of family income. This is the message that students from some of the Lunch for Learning coalition groups and Public Advocate James are delivering in a letter to the mayor on Tuesday afternoon, along with a photobook of over 300 pictures from the #lunch4learning selfie campaign.

Council Member Ben Kallos, who is among those in the City Council most involved in calling for the expansion of free school meals, talks personally about the free lunch stigma. Raised on the Upper East Side by his single mother, he was one of the few children in his neighborhood who qualified for free or reduced-price school lunches, Kallos says. “If you’re bringing the styrofoam tray, you get made fun of,” he said, recalling the tray that gave away that a student had received a free lunch. “I wish I could say differently but I did not make the smart decision. And rather than facing the stigma of having the school lunch, I just didn’t eat.”

According to an estimate by the Independent Budget Office, it would cost $20 million per year to provide free lunch to all of the city’s public school students. The Department of Education’s operating budget for 2015-2016 is $21.8 billion. Last year, under a pilot program, free lunches for all students were provided in New York City’s standalone middle schools. Within months of the program’s start, almost 10 percent more students were eating free lunches in these schools. Mayor de Blasio described the results of the pilot program as “mixed” in his presentation of his fiscal year 2016 Executive Budget, elaborating, “the additional number of children who are taking advantage of it has not been that large so far.”

Calling the increase “phenomenal progress,” Poppendieck disagrees. “I think maybe that they [the de Blasio administration] don’t understand the whole structure of reimbursements well enough or the culture of the school cafeteria enough to really appreciate the gains that have been made,” she told Gotham Gazette.

Many are surprised at the administration’s reluctance to expand free school meals. “This is in stark contrast to the rest of the record on food issues,” says Berg, of the Coalition Against Hunger, which he calls otherwise “stellar.” Advocates for universal school meals feel the expansion of this program to all New York City public schools would be consistent with the mayor’s efforts to reduce inequality, with Accles calling it “fundamental to any education or health equity agenda that the mayor has.”

The Most Important Meal of the Day
While free lunches are currently only available to qualified and registered students, free breakfasts are available to all students in New York City public schools, regardless of income. Yet, New York consistently ranks among the bottom of big cities in terms of low-income students eating school breakfasts, leading some to call for reform of breakfast accessibility.

According to the latest annual report by the Food Research and Action Center, a nonprofit organization working to eliminate hunger and under-nutrition, in the 2013-2014 school year only about 35 percent of the city’s low-income students were eating breakfast in school. The report shows that the number of students eating school breakfasts decreased last school year. “We’re just so far below what the norms are,” says City Council Member Stephen Levin, chair of the Council’s general welfare committee.

Low participation numbers intensified the push for “breakfast after the bell.” In most New York City schools, breakfast is served in the cafeteria before the first class of the day. Supporters of the after-the-bell program say that many students cannot arrive at school in time for breakfast in the cafeteria because school buses may not get to school that early or because parents have to drop off their children in different schools. And, like free lunches, there is also a poverty stigma attached to eating school breakfasts. While all students are entitled to the free breakfasts, the general perception in schools is that those who make the effort to arrive early, just to eat in the cafeteria, are those who cannot afford to eat at home. “Students feel shame. And it shouldn’t be that way,” says Sabella.

With ‘breakfast after the bell,’ students can eat their free breakfast after the start of morning classes instead of before the school day. “It’s the best way to get as much food as possible to children that need it,” says Council Member Levin.

At the moment, New York City public school principals can choose to opt in for ‘breakfast after the bell.’ Over 300 schools in the city have opted in so far, either serving breakfast in the classroom or providing “grab and go” carts for students to pick up food to take into class. “We’ve heard nothing but good things from those principals and teachers,” says Megan Cryan, New York City Campaign Director of Share our Strength. “It levels the playing field,” she adds, referring to research that children who eat breakfast after the bell are able to focus better, have fewer behavioral issues, and make fewer visits to the school nurse.

Advocates also point to the examples of other big cities that have successfully introduced ‘breakfast after the bell.’ Recently, Los Angeles completed a three-year rollout of the program in all of its public schools. The results include the number of children eating breakfast in schools surging from around 30 percent to over 80 percent. The city covered the costs of the program with $16 million in reimbursements from the USDA.

Some reluctance to implementing ‘breakfast after the bell’ in New York is due to concerns such as keeping classrooms clean and whether federal funding would cover the start-up costs of the program. There is also skepticism around students being able to concentrate on their studies while eating or nearby others who take food.

Supporters say that in New York City, ‘breakfast after the bell’ is likely to pay for itself as the more meals are served, the more is received in federal reimbursements. According to the Food Research and Action Center, New York City would receive more than $53 million in additional federal reimbursements if 70 percent of the students receiving school lunches would also eat breakfast at school. Berg estimates that the city would receive an additional $150 million if every child is served breakfast in school every day.

Although Mayor de Blasio supported ‘breakfast after the bell’ before becoming mayor, he has not remained on board since coming into office. This year’s preliminary and executive budgets did not include ‘breakfast after the bell’ or an expansion of universal free lunch. This omission was noted by the City Council in its budget response and raised in a Council hearing on the education budget. Public Advocate James also expressed her disappointment in a press conference outside the Department of Education and in an op-ed for City & State urging the mayor to expand universal free meals beyond middle schools.

In a statement sent to Gotham Gazette, the Department of Education said, “The DOE is pleased to serve free lunch for all students in standalone middle schools. We are continuing to work through the operational issues involved with the free breakfast in the classroom program and will work closely with City Council, school leaders and advocates as this process continues.”

“We don’t know what the holdup is but we are hopeful,” said Cryan of the possibility of school meals being expanded in the final budget for the fiscal year starting July 1. Kallos similarly expressed hope but also said he was “unsatisfied” with responses he has received from the City Schools Chancellor Carmen Fariña.

Kallos says it is time to act: “Folks seem to be pointing fingers. But at the end of the day, it’s up to us to make it happen.”

by Zehra Rehman, Gotham Gazette

7 Points of Contention as City Budget Deal Finalized


Mayor de Blasio & Speaker Mark-Viverito talk (photo: William Alatriste)

“This year we're fighting for much-needed funds that will get #NYC 6-day library service citywide, more police, better parks & much more,” tweeted City Council Majority Leader Jimmy Van Bramer on Monday morning.

Van Bramer, who chairs the Council’s cultural affairs committee, where the debate over library funding has largely been heard, reminded of the Council’s budget priorities as final negotiations take place between the 51-member legislative body and the administration of Mayor Bill de Blasio. A deal on a fiscal year 2016 budget is due by July 1, when the new city fiscal year begins. Many expect a deal to be announced this week - last year, the first as mayor for de Blasio and as speaker of the Council for Melissa Mark-Viverito, a budget deal was announced on June 19.

Van Bramer and colleague Council Members Vanessa Gibson, who chairs the public safety committee, and Mark Levine, chair of the parks committee, were on NY1’s Inside City Hall on Friday discussing the final stages of budget negotiations.

“Obviously it is a very inclusive and collaborative process, but at the end of the day the mayor and the speaker will conclude with a deal that reflects the work we’ve been doing as a body over the past several weeks and months,” Van Bramer said.

After de Blasio released his executive budget on May 7, council members have continued to push for an increase in funds for libraries, parks, NYPD headcount, senior citizen services, women’s health services, city-funded school lunches for all students, and more. One other high-profile funding question is whether de Blasio will put money toward a city bail fund, as proposed by Mark-Viverito.

In response to the proposed executive budget, Finance Committee Chair Julissa Ferreras and Mark-Viverito released a joint statement in May praising the budget’s strong capital investment and increased funding toward mental health programs, public housing, and after-school programs for students. But they also chastised the lack of investment in policing and universal school lunch.

“The City Council is disappointed that the Executive Budget does not contain funding for new Police Officers who will help give Commissioner Bratton the tools he needs to continue to keep crime low while also improving police-community relations. The Council was also disappointed to see the Executive Budget does not expand funding for universal free school lunches and breakfast after the bell,” the statement says. “The Council will continue to advocate for these priorities moving forward.”

The Wall Street Journal reports that the sides are closing in on a deal to expand the NYPD force by several hundred and that an announcement on that and the rest of the budget could be as early as Monday night. As a city budget deal approaches, a look at several key issues being negotiated:

NYPD Headcount
For a second straight year Mayor de Blasio declined to include money in his budget to hire 1,000 new police officers per the Council’s request, led by Speaker Melissa Mark-Viverito. De Blasio said in May that the NYPD is doing an “outstanding” job as it is and that because officers are spending less time on unnecessary stop and frisks and low-level marijuana arrests, they are freed up to do more of the community policing Council members are seeking the additonal headcount to perform.

Mark-Viverito has since continued to push for additional officers. The Wall Street Journal reported Sunday night that the de Blasio administration will likely expand the size of the police force in exchange for capping overtime for officers.

City Bail Fund
In her February State of the City address, Mark-Viverito proposed a $1.4 million city-wide bail fund to assist low level, non-violent offenders who are unable to make bail. De Blasio declined to provide money for the bail fund in his executive budget.

However, less than a month later, de Blasio endorsed “some sort of bail reform” following the suicide of Kalief Browder, who was detained at Rikers Island for three years before he stood trial and his charges— that of stealing a backpack— were dismissed.

After delivering a statement at an oversight hearing on bail reform last week, Mark-Viverito told reporters that the council could “get [the bail fund] done without the administration’s support.”

On Thursday, de Blasio was asked about Mark-Viverito’s assertion and said, “we’re in a budget discussion and all items are being discussed. I believe in the need for bail reform, and there’s several different ways to do that.” He said that city leaders “don’t want to see people going to jail simply because they can’t afford a small amount of bail for a minor offense,” but said that “there’s more than one way to address that issue” and that he is “particularly focused on...some of the efforts to have a supervised release effort for very low-level crimes that we’ve seen done effectively before.”

Universal Free School Lunch
Council members and Public Advocate Letitia James are pushing de Blasio to provide funding to pay for universal free lunch for all public school students in the city. De Blasio has pushed back on that proposal, arguing that the pilot program his administration funded last year that provided free lunch to all middle schoolers has yielded “mixed results.” Advocates for the program continue to push de Blasio to add funding.

Library Funding
Council Member Jimmy Van Bramer has requested an additional $65 million for libraries, arguing that the need for library services is growing and that funding is below levels of several years ago. The executive budget includes $314 million. The de Blasio administration has also committed to a $300 million ten-year capital budget for libraries, an act representatives call “unprecedented.”

Senior Services
After the administration asked the Department of Aging to cut its budget by $3.1 million, Council Member Margaret Chin has requested an additional $11.5 million for senior services. The budget originally provided $2.6 million, then later added another $2 million to fund elder abuse programs.

Women’s Health Services
The Council Women’s Caucus, led by Council Member Elizabeth Crowley, has called on City Hall to support the Women’s Health Initiative— nearly $4 million baselined during the Bloomberg administration for groups that support women’s health services, including Planned Parenthood, That money is not included in de Blasio’s executive budget, though an administration source has said that the funding will be in the adopted budget after being reappropriated. Crowley, other Council members, advocates and service providers rallied at City Hall last week.

Parks Funding
The proposed budget includes $1.27 billion for parks, an overall increase of $50 million in spending. But some park advocates and Council members, including Mark Levine, are asking the mayor to invest more in parkland and to add $8.7 million for gardeners and maintenance workers, the New York Times reported.

“The parks budget has been stagnating for years. We only devote about one half of one percent of the city’s total budget for parks, it was triple that in the sixties,” Levine said Friday on NY1. “And you see it in our park system today…For parks in low- and moderate-income communities, they need robust public investment in their park system, which they’re not currently getting.”

When de Blasio unveiled his $78.3 billion executive budget on May 7, he touted investments in affordable housing, struggling schools, and fighting homelessness, while firmly rejecting the Council’s call to to hire additional police officers. However, it appears he may give way and expand NYPD headcount and perhaps a handful of other Council requests as negotiations continue, especially as the city’s tax revenues continue to increase. State Comptroller Tom DiNapoli said earlier this month that the city would end its 2015 fiscal year with a $3 billion surplus. The mayor and Council must come to an agreement by June 30.

by Catie Edmondson and Ben Max, Gotham Gazette
@CatieEdmondson @tweetBenMax

The Week That Was in New York Politics, June 15-19

week in review bus readers

photo: Stanley Kubrick via Museum of the City of New York

Gotham Gazette's Week in Review, Friday June 19

PHOTO OF THE WEEK: Mayor Bill de Blasio speaks at the groundbreaking for the Cornel Technion campus on Roosevelt Island, praising former Mayor Michael Bloomberg, who announced a $100 million donation to the school; via John M. Mantel for the New York Post

Bloomberg de Blasio Cornell Tech


1. Rent Regulations Expire...Then Extended: State lawmakers allowed rent regulations to expire this past Monday to the frustration of about two million New York City tenants who live in rent-regulated apartments, and many Democratic state legislators and City Council members. In a statement released on Monday, June 15, Governor Cuomo warned that “landlords should under no circumstances believe that their responsibility under the current rent stabilization program has expired.” With negotiations at an impasse, Cuomo and legislative leaders agreed on Thursday to sign a short extension of the regulations, applying retroactively and through Tuesday, June 23. Negotiations continue.

2. Some Important Albany Business Done: ‘Affirmative Consent’ on College Campuses, Nail Salon Regulations, and Port Authority Reform: No deals yet on rent regulations, 421-a, mayoral control of schools, the charter school cap, ‘raise the age,’ or a whole host of other high-profile issues, but, a few key items were dealth with this week. Legislators approved the campus sexual assault bill redefining consent on Tuesday, one of Gov. Cuomo’s top priorities. A bill allowing pregnant women to enroll in the New York State Health Exchange at any time was passed. A nail salon bill, which allows regulation of the industry that recently came under heightened scrutiny thanks to a New York Times series, was passed. And, Thursday evening a Port Authority reform bill passed, with Assembly Speaker Carl Heastie saying the bill is important reform ”by increasing transparency, improving regulation and instituting more independent oversight.” The bill will still need approval from New Jersey’s state legislators.

3. NYC Office of Civil Justice Created: The bill creating an Office of Civil Justice and a Coordinator of Civil Justice was unanimously passed in committee in the last week of May before being voted on by full City Council, and then signed into law by Mayor de Blasio this past Tuesday. Civil court, unlike criminal court, does not have “the right to counsel” even though cases about eviction, child custody, and deportation are often life-changing. The new office will be geared toward consolidating many of the different efforts to bring legal aid and representation to low-income New Yorkers.

4. First Arrest By New Tenant Harassment Prevention Task Force: On Wednesday, Attorney General Schneiderman, Mayor de Blasio and the New York State Homes and Community Renewal Commissioner James Rubin announced that the city/state Tenant Harassment Prevention Task Force had arrested and indicted landlord Daniel Melamed. It was alleged that Melamed jeopardized the health and safety of his tenants, including a six-year-old child, and forced at least one rent regulation tenant to move out. In the press release on Wednesday Attorney General Schneiderman warned that the “charges send a strong message to landlords across New York City: if you harass, intimidate, or jeopardize the health and safety of your tenants, we will come after you with the full force of the law.”

5. Groundbreaking At Cornell Tech: Cornell and Technion-Israel Institute of Technology won the 2011 competition to build an applied sciences graduate school to “foster high-tech entrepreneurship in the city” and its groundbreaking ceremony just took place this past Tuesday at the Roosevelt Island site. The first stage of construction won’t be finished until 2017 but Mayor de Blasio noted at the ceremony that over the next 30 years this project is projected to create more than 48,000 jobs and bring $33 billion in economic impact. This past Monday, former Mayor Bloomberg also announced a donation of $100 million to the project. The groundbreaking as a rare joint appearance by the current mayor and his predeccessor. 


  • 13 days since Richard Matt and David Sweat escaped from Clinton Correctional Facility in Dannemora, New York on June 6 (as of Friday, June 19, that is).
  • 42 percent of more than 1,400 criminal cases with defendants at Rikers for more than a year have been decided by New York City Courts over the past two months. This is part of “Justice Reboot,” an attempt to reduce the backlog of pending cases.
  • $100 million being donated by former Mayor Michael Bloomberg is to Cornell Technion to build a school building on Roosevelt Island. The campus will include “The Bloomberg Center,” and city officials are hopeful that it will position New York City as a major tech center. The school is part of an initiative Bloomberg launched for a new graduate school of applied sciences in the city.


  • It was a good week for Dante de Blasio, as Mayor Bill de Blasio’s son graduates Friday from Brooklyn Technical High School with plans to attend Yale University in the fall. Mayor de Blasio and First Lady Chirlane McCray both set to attend and deliver remarks at the ceremony at Barclays Center.
  • It was bad week for Governor Andrew Cuomo and Assembly Speaker Carl Heastie, both Democrats, neither of whom appears able to convince Republican Senate Majority Leader John Flanagan to extend and stregthen rent regulations meant to keep about a million apartment units affordable for New York City residents. Many Democrats are questioning Cuomo's leadership and Heastie has not proven his mettle in his first post-budget legislative negotiations, with rent laws expiring on Monday night. Some are applauding Heastie for holding his ground, though, both on rent laws and in not giving in to the education investment tax credit favored by Cuomo and Senate Republicans.


  • One year ago, June 19, 2014, Governor Cuomo and state legislative leaders announced an agreement to establish a medical marijuana program, known as the Compassionate Care Act, for New York State. The program rollout continues while there is much criticism of the rules as being too tight.
  • Exactly 150 years ago, June 19,1865, Major General Gordon Granger landed in Texas with the news that the Civil War had ended and that the enslaved were to be set free. The day would become known as Juneteenth and the pronouncement came two-and-a-half years after the Emancipation Proclamation, which had made very little impact in Texas.



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Watch Sunday evening for our latest Week Ahead in New York Politics, which gives you a preview of key issues and events to be aware of for the week about to start. In the meantime, catch up on the latest original reporting from Gotham Gazette here. And have a great weekend!

by Erika Wang and Ben Max

Albany Lawmakers Putter Past Deadlines, Surprising No One

Cuomo Heastie

Two of the 'three men' (photo: The Governor's Office via flickr)

Albany has a reputation for procrastination. Gov. Andrew Cuomo and the Legislature seem to meet no sunsetting regulation that impacts millions of people, mandated federal action with millions of dollars at stake, or other serious deadline that is too important for them to skirt. State government loves to push issues right to the edge, pause, and then shove them over the cliff just when everyone is looking.

It is a habit so ingrained in capital culture that long-time observers simply expect it. "When they announced the last day of session was a Wednesday I just assumed the actual end would be Friday," said Blair Horner, of the New York Public Interest Research Group, who has witnessed decades of Albany dysfunction.

With both houses and the governor having failed to prevent the city's rent laws that govern affordable housing for millions of New Yorkers from expiring, they remain in Albany locked in a more-than familiar routine. Leaders meetings are punctuated by declarations to the press of "No deal yet!" or "See you tomorrow!" The governor's office issues press release after press release about funding grants to various projects and there is an occasional deal announced on an important issue while a host of legislative debates over bills bordering on the absurd take place in chambers - as happened Wednesday in the Senate on a bill that would make the wood frog the state amphibian or with a bill naming an official state dog that was on the Senate's active list on Thursday.

Lawmakers expect to continue this routine on Friday and Monday after that, if no deal materializes on rent regulations and a couple of other high profile issues like mayoral control of city schools. Legislators have special incentive to stay and negotiate, not only because of public opinion, but because if they fail to negotiate major policy now, Gov. Cuomo will be able to hammer his preferred policy positions through more easily in the next budget.

In Albany, where passing a state budget on time is seen as a work of wonders - and a late budget is labeled on-time because the clocks in the chamber are stopped during voting - many see the current situation as par for the course and think it may the best the state can hope for, especially given current realities. "In many ways this is a really typical end of session," said Horner. "Everyone is waiting while deals are rolled out slowly, negotiations are covered in a shroud of secrecy, and this is an odd numbered year so they are focused on delivering for the political elite rather than the voters."

Things could be worse given that the legislative hierarchy was upended by US Attorney Preet Bharara and Cuomo's negotiating team consists of second-term rookies. New conference leaders Assembly Speaker Carl Heastie, a Democrat, and Senate Majority Leader John Flanagan, a Republican, have yet to storm away from the negotiating table and taken their conferences home. Cuomo hasn't begun making public threats, beyond saying he would keep the Legislature in town for as long as it takes to reach a deal on the rent laws. But history shows that there isn't much anyone can do to force the sides into a deal and as long as discussions are ongoing, there is still hope issues can be resolved.

The Legislature wrapped session fairly neatly over the last 3 years without a big ticket deal - often known as a "big ugly." But in 2011 Cuomo and legislators found themselves in a somewhat similar situation. Rent laws expired while negotiations over hot-button issues like marriage equality were actually resolved. The Legislature stayed in session a few days past the scheduled conclusion, passing simple extenders of the rent laws until they allowed the law to expire for 48 hours. Eventually a deal was struck.

Horner and others say it is when both sides stop talking that people really need to worry, because there is no effective recourse. "At the moment, cooler heads are prevailing and they continue to talk," said Horner. Cuomo could call a special session which allows him to force the Legislature to return to Albany to consider a legislative agenda of his choosing, but there is nothing he can do to make them pass bills. "The governor can call them back but it is largely an ineffective executive tool that is mainly used as a torture device rather than a deal-maker. It is used as a weapon to force them to schlep to Albany," said Horner.

Former Assembly Member and Senior Demos Fellow Richard Brodsky says that special sessions are "just silly," because "the Legislature can just gavel out of special session and into regular session," without even considering the governor's agenda.

Brodsky said it is actually in Cuomo's best interest if end-of-session negotiations fail. He said the governor's considerable budget powers have actually led to this end-of-session stalemate. "Last minute negotiation is a basic tenet of any democracy, from London to Jerusalem," said Brodsky. "What is really going on here is the governor has no incentive to negotiate because he can get whatever he wants in the budget thanks to Silver v. Pataki."

The decision in that case prevents the Legislature from altering Cuomo's budget proposals, allowing the branch to only agree or disagree with each entry. This year the result was the adoption of Cuomo's hyper-controversial education plan, free of legislative tinkering. There was, of course, much that the governor attempted to include in the budget that legislators would not agree to and was thus bumped out completely.

Brodsky says he expects Cuomo and the Legislature to agree to basic extenders so that Cuomo can put more long-term deals on mayoral control and rent regulations in his budget.

Meanwhile, for further head-scratching consider that both houses of the Legislature maintain a technical defense against any gubernatorial special session by staying in regular session even when members aren't actually in Albany to vote on anything. When leadership announces the end of a session week they will unfailingly announce their return date along with the phrase "intervening days being legislative days." The move is designed so that they never technically go out of session and leave themselves open to an official special session called by the governor. Horner says he isn't exactly clear whether the mechanism actually works. If Cuomo were to call the Legislature back it would carry with it the weight of public opinion, regardless of the technicalities.

The Legislature has returned outside of normal session voluntarily in the past to address pressing issues. They've reached deals on tax reform under Gov. Cuomo and on anti-terrorism measures after 9/11 under Gov. George Pataki.

One reason the current situation may not seem so bad to veterans like Horner is that there was a time when having the Legislature in Albany through the summer was basically the norm. Under Pataki and Gov. David Paterson budgets, due by March 1, were routinely months late.

Paterson put his executive power to the test during the 2009 Senate coup where Republicans attempted to seize control of the chamber by aligning with Sens. Pedro Espada and Hiram Monserrate. Both Democrats and Republicans insisted they controlled the chamber, the stalemate continued for weeks as legal challenges mounted. Paterson issued a special session to address outstanding issues like mayoral control of schools.

Legislators returned to Albany facing the threat of having the State Police force them there but Democrats and Republicans refused to enter the Senate chamber at the same time. Nothing got done.

Paterson later pressed Comptroller Thomas DiNapoli to withhold senators' pay until they got to work. DiNapoli initially resisted but in early July 2009 he began withholding payments despite the lack of any clear legality. The situation was eventually resolved when Paterson filled the vacant lieutenant governor position, which stripped the Senate of some of its power.

Horner stresses that the current situation isn't anywhere near the dysfunction of 2009 but that with all the pressure the Legislature faces and tension in the chamber due to Bharara's indictments, things could change for the worse. The situation is already at a point where many policy issues have been swept off the table as almost only the most basic items that have or will soon sunset are being dealt with.

"I really couldn't give odds on whether things get settled," said Horner. "This is a unique session. normally muscle memory is that there is radio silence from the governor and leaders as agreements roll out and I think that is what the expectation is now. But there is a giant question mark over whether Albany has the capacity to deal with all the changes it has been through this year."

Brodsky, however, said he knows how this movie ends. "I've been saying for months we will get extenders and the governor will put what he wants on these issues in his budget in March. I don't fault the governor, why would he negotiate when he doesn't have to?"

by David King, Albany editor, Gotham Gazette

City Council Ready to Act on Bail Reform, Alone if Necessary

Lancman MMV bail hearing

CM Lancman & Speaker Mark-Viverito at Wednesday's hearing (photo: William Alatriste) 

Wednesday’s oversight hearing made it clear— the question is not if the City Council will move to reform the city’s bail system, but how much reform will they be able to accomplish with their somewhat limited power.

Though the Council appears certain to move to create a $1.4 million city-wide bail fund as proposed by Council Speaker Melissa Mark-Viverito, many advocates called for an elimination of cash bail altogether, and many of the reforms suggested at Wednesday’s hearing would require an amendment to the state’s Criminal Procedure Law - an act that the state legislature would have to take up.

“Until we are able to directly change the broken system, we are going to work within it to limit its injustices,” Council Speaker Mark-Viverito promised Wednesday. The speaker gave opening remarks at the hearing, reiterating her call for major reforms to the justice system.

Over a dozen public defenders, advocates for bail reform, and representatives from the Mayor’s Office of Criminal Justice testified over the course of more than four hours, often giving the same arguments and statistics— that cash bail discriminates against the poor, the merits of supervised release programs, the cumbersome and unjust bureaucracy tangled in the process of paying bail— that boiled down to the same sentiment.

“Our bail system is broken,” said Council Member Rory Lancman, the chair of the Committee on Courts and Legal Services. “Too many people are detained on Rikers not because they have been convicted of a crime, but simply because they are too poor to make bail. This hurts defendants and it hurts taxpayers too, who pay $125 million each year to keep pretrial detainees on Rikers.”

Jerome McElroy, the executive director of the New York City Criminal Justice Agency, a private non-profit agency contracted by the city to provide pre-trial services, recommended that a commission be created to develop a new system that establishes a presumption of release for all non-violent cases, prevents anyone from being detained simply because of his or her inability to post a bond, and limits consideration of pretrial detention to “only the most serious cases.”

“Since each of these elements will provoke serious debate, as will reconciling any changes with due process and speedy trials rules, I expect that significant and much-needed reforms will not be accomplished quickly,” McElroy said.

While most of those testifying said they supported the total elimination of cash bail, many focused their testimony on targeting policies and practices that the city could adopt while continuing to discuss such a significant reform. They cited discouraging district attorneys from asking for bail in misdemeanor cases, reconfiguring the bail-paying process, ensuring that defendents’ financial circumstances are taken into account when setting bail, and expanding supervised release programs.  

The one notable exception was the testimony given by James Quinn, the senior executive assistant district attorney representing the Queens County District Attorney’s Office.

Though Quinn expressed support for making it easier to post bail in the counties where a crime is committed (currently family members of defendants in Queens must personally go to either Rikers Island or corrections facilities in the Bronx, Brooklyn, or Manhattan to post bail once the defendant has been transported to Rikers), he sharply criticized the proposal to set up the city-wide bail fund.

“Bail is designed to ensure that the defendant appears in court when required. It means that he has a financial stake in his appearance,” Quinn said. “If he does not show up, he loses his money. If the City posts the bail, and the defendant does not appear, he loses nothing.”

Quinn’s statement appeared to resonate with at least one New Yorker. Following the hearing on Twitter, one individual tweeted at Council Member Lancman: “When is this council up for election? Is [Mark-Viverito] for real? I should pay [defendents’] bail?"

Lancman tweeted back, “We can pay their $500 bail, or pay $170k/yr at Rikers. [Mark-Viverito] just saved you $169,500.”

The exchange gets at a key issue related to public bail funds: rate of return. One pilot program in the Bronx has noted a 98 percent success rate, thus allowing the fund to replenish itself as bail loans are returned when defendents appear for their court dates.

The Council appears likely to act on the bail fund even without the mayor’s approval, though it is an ongoing part of budget negotiations taking place this month. De Blasio has acknowledged the need for bail reform, but his representatives at Wednesday’s hearing did not commit to anything. Council Member Steven Matteo, one of three Republicans of the Council's 51 members, voiced his opposition on social media Wednesday afternoon, tweeting that a bail fund "is a complete nonstarter" for him, and that "Giving a 'Get Out of Jail Free' card courtesy of the taxpayer is wrong."

Paying mind to concerns during the hearing, Lancman advised Ann Jacobs, the Director of the Prisoner Reentry Institute at John Jay College to “be sensitive to the view of the public” who are concerned about re-arrest rates for defendants out on supervised release programs. Such programs serve to release eligible non-violent defendants who would otherwise be held on bail while requiring ongoing communication.

“I just wouldn’t be dismissive of the public’s concerns about people who are committing low-level misdemeanors,” Lancman said.

But some, like Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, pushed harder, saying that such programs would not be necessary if cash bail were eliminated. “A strategy that employs filling potholes is not the same thing as doing what’s needed to repave the road,” Burdeen said.

“The reality that the mayor has to deal with is, we can’t change the statute,” Lancman said. “And the state legislature is not able to deal with this at the moment.” Lancman’s comment was a reference to the fact that state lawmakers are at the end of their legislative session in Albany and struggling to pass even extensions of existing regulations that almost all agree must be extended, especially related to rent regulations.

The Council could look to enforce many of the proposals outlined in Lancman’s preliminary recommendations on bail reform, which include expanding supervised release programs, requiring all actors in the justice system to undergo implicit bias training, requiring the Department of Corrections to create a website that would allow cash bail to be paid online, and requiring that courts inquire into defendants’ financial circumstances before setting bail, something already provided in the current statute but rarely done.

As for the $1.4 million city bail fund?

“We can get it done without the administration’s support,” Mark-Viverito told reporters after she delivered her statement.

by Catie Edmondson, Gotham Gazette

Landlord Harassment, Neglect Continue Despite State Monitor, Tenants Say

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Tenants rally (photo: @TenantPowerNY)

Tenants celebrated when Gov. Andrew Cuomo's Tenant Protection Unit (TPU) appointed a monitor to oversee 51 apartment buildings owned by the notorious Castellan Real Estate Partners, but for the past two years those same tenants say the conditions in their buildings have deteriorated while the TPU has failed to take action.

The monitor was named as part of a larger settlement, reached in January 2014, and tasked with tracking the New York City landlord. The Cuomo administration hailed the agreement as "groundbreaking" and proof that the TPU was to be taken seriously. Cuomo boasts that the TPU, created in 2011, has returned 40,000 units to the rent-regulated rolls.

Maria Aguirre, a resident of an eight-unit Castellan building in the Bronx, says she and other tenants have lived a nightmare. Aguirre says tenants have had to go months without heat in the winter and without gas to cook with for a year; that they've faced harassment from building supers while holding public meetings; contended with unchecked rat and mold infestations and, in some cases, lead poisoning.

Tenants have refrained from criticizing the TPU over the eighteen months, but now they say they've had enough. "We believe after working with the TPU for two years we can grade them in terms of their role as a protector of tenants," Aguirre told Gotham Gazette. "From my perspective the governor and the TPU used us to promote themselves, yet we as tenants haven't seen any real changes. We were used for publicity purposes."

Tenants plan to hold a press conference Wednesday at which children of tenants will present the TPU with a report card. It is expected the grade will be an 'F.'

In announcing the settlement with Castellan, the Cuomo administration promised "a major settlement agreement that will help make communities more just and affordable by ending the reported harassment and intimidation of mainly Spanish-speaking immigrant tenants in nearly 1,800 apartments within 49 buildings in Harlem, Washington Heights, Brooklyn and the South Bronx."

The Cuomo administration did not return a request for comment for this story.

For some, the situation with Castellan isn't exactly surprising, the group has a reputation for being extremely effective at booting tenants from their apartments and jacking up the rent. Their cases against tenants dominate housing courts across the city. Juan Gonzalez of the Daily News has detailed tenant complaints extensively in a series of articles.

Castellan has celebrated its ability to achieve "value enhancement" in the rent-controlled buildings, allowing them to increase rents. When Castellan first purchased 50 buildings across the city with more than 1,700 rent-stabilized apartments many tenants reported a major uptick in harassment. They were called into meetings and interrogated by Castellan staff, who demanded proof of citizenship and income. Tenants who could not provide proof were told they would be evicted in 30 days. Later, tenants say they found unexplained fees added to their rent bills and many tenants were pressured to sign letters agreeing to vacate their apartments.

Things were supposed to change when the TPU got involved. Aguirre and other tenants organized and, after a very public protest in 2012, were contacted by the TPU. The TPU investigated for seven months, issuing its first subpoenas. It eventually settled with Castellan, announcing the deal in January 2014. The group agreed to reimburse Spanish-speaking residents it had improperly evicted and to submit to a monitor for a term of up to three years to to ensure that Castellan was not harassing tenants, provided equal treatment to Spanish-speaking renters, and that employees received improved training, including in not harassing tenants.

Instead, many tenants say the monitor, Peter Heuzey, acts more as an agent for Castellan, repeating the company line rather than independently verifying claims. They say he ignores their calls and only acts when faced with the spectre of public criticism. When tenants complained that a super had tried to prevent them from meeting and then crashed their gathering, screaming and making threats, the monitor reportedly told tenants his behavior was not "representative" of Castellan as a whole - despite that fact that the monitor had been appointed because of Castellan's history of harassment. Tenants claim the monitor's office looks to them to provide information on service interruptions and maintenance lapses, rather than investigate independently.

Aguirre says that the monitor ignored her calls last November when she tried to complain that the heat in her building had been out for days. When she finally reached Heuzey's office, he lectured her for not calling more persistently and then informed her the building would be without heat for weeks because the boiler was missing a part. Heuzey was hired by Castellan but approved by the TPU. Tenants are concerned his loyalties lie with Castellan because it pays him. Heuzey is a partner at O'Connor Davies LLP, a public accounting firm.

Aguirre says she argued that such a period without heat was unacceptable but the monitor insisted nothing else could be done. Tenants then entered a protracted battle to have Castellan provide heaters. "[The monitor's] response to the request for heaters was that it would be extremely difficult for Castellan to provide heaters for an eight-unit building," said Aguirre.

Castellan did eventually provide heaters but tenants were forced to use them over a period of two months which drove up their electricity bills and in some case made their financial situation untenable. Castellan, in turn, took a number of tenants to court for not paying their rent.

Rick Serrapica, chief operating officer for Castellan, denied that any of his buildings had been without heat for more than "a day or two, here or there." He said that a number of buildings have had and are undergoing boiler replacements but dismissed reports that any buildings had been without heat for months as "pure nonsense."

Sandra Cruz Morales, a resident of one property at 1469 5th Ave. in Harlem, was involved in the initial organizing that drew the attention of the TPU. "It has been very difficult for me," said the mother of one. "Three years years ago they wanted to aggressively displace us but we fought and organized, and were able to remain."

She says that things have just gotten worse in other areas since the TPU began to monitor the situation. She has been without gas for her stove for three months, while other Castellan tenants have faced the problem for over a year, she says. "It is very difficult to live without gas," said Morales through a translator. "For example, I get out of work at six, I have to run to get my daughter out of school. She's very hungry when she gets out, so I have to cook using a burner and that is very difficult and it costs a lot to buy food out."

Morales said that while Castellan has provided burners for tenants to cook on, the hot plates have spiked her electricity costs and she has yet to be reimbursed. She knows some tenants who waited a year for reimbursement. Castellan has taken some of those tenants to court for failure to pay their rent.

According to Morales the monitor has insisted that the problem is on Con Edison's shoulders, but she wants him to do an independent investigation as she was without gas for eight months before the monitor took over.

"I complained about it to the monitor and asked, 'When will it be taken care?' His office says, 'We Don't know who is responsible,'" said Morales. "He doesn't know anything so he can't help us."

Serrapica said that service interruptions came about because Con Edison has been on high alert following gas explosions in East Harlem and the East Village and that "someone called 311 and reported the smell of gas." He says the lines in some buildings have to be replaced and then inspected by multiple agencies. Most tenants impacted by the lack of service have received rent credits this month, he said, but tenants of two buildings where work recently began have yet to be reimbursed.

Tenants say other parts of the agreement between the TPU and Castellan go unenforced. For example, communications between Castellan and tenants are supposed to be provided in English and Spanish, but tenants complain they continue to receive notices exclusively in English.

Serrapica said the TPU has been helpful in helping him understand "grey areas" of the law. He encourages tenants to use Castellan's 24-hour help line if they have a problem but to feel free to contact the TPU if they feel it necessary.

Tenants say that they have contacted the TPU multiple times, over the phone and in writing, but have been ignored. "Since the monitor doesn't listen we've been forced to turn to the TPU, but they've ignored us," said Aguirre. "We've shared our grievances with them. We have no other recourse but go public. The TPU should intervene. They should be protecting us."

Morales said she isn't looking for a free ride, or even a pro-tenant monitor. "We were the ones who fought to get an independent monitor in place," said Morales. "All we want is someone who is impartial, I don't expect him to get my rent for free, I just want someone who will follow up, independently verify Castellan's claims, and not treat us like we are making up stories."

by David King, Albany editor, Gotham Gazette

How We Got Here: City Creates New Office of Civil Justice

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At Tuesday's bill signing (photo: @NYCHRA)

"The Gideon versus Wainwright case paved the way for the right to legal counsel in criminal cases but, sadly, the right to counsel was not available in civil cases when the stakes were also very, very high for those involved. Civil cases affect some of the most important parts of a person's life, the ability to have and keep a home, to keep a family together, to escape from domestic violence, in fact, to be able to stay in this country. So on these areas there is a deep need and my administration is focused in an unprecedented manner on civil legal services including legal assistance to protect tenants and prevent homelessness. This bill is a step towards fixing the imbalance between those who can afford adequate civil counsel and those forced to face life altering legal issues without help of attorney."  -Mayor Bill de Blasio, June 16, 2015

On Tuesday, June 16 Mayor de Blasio signed Intro. 0736 into law, establishing an Office of Civil Justice and creating a new Civil Justice Coordinator position. This office is modeled after the Office of Criminal Justice, with the Office of Civil Justice set to provide coordination around city resources related to civil court proceedings, especially with regard to legal representation for low-income defendants in places like immigration and housing courts.

While defendants in criminal court do have a right to counsel, defendants in civil court do not. In cases of eviction, deportation, and child custody - among others - not having access to legal aid can be detrimental to a person's case. The bill creating the civil justice office was sponsored by Council Member Mark Levine and Council Speaker Melissa Mark-Viverito, and comes as the city has been increasing funding and efforts to ensure that more low-income New Yorkers have access to attorneys in civil matters. The Office of Civil Justice will coordinate efforts, assess needs, and make recommendations.

The following is an abridged history leading up to the signing of the bill:

December 2005: Study of Self-Represented Litigants in New York City Family Court and New York City Housing Court: The Office of the Deputy Chief Administrative Judge for Justice Initiatives released survey results covering 3,303 litigants appearing without a lawyer in the city’s family and housing courts in 2003. It was found that 83 percent of self-represented defendants reported a household income of under $30,000. Sixty percent of the people surveyed in housing and family court also reported that they felt they could not afford an attorney.

December 7, 2012: The New York Immigrant Representation (NYIR) Study Report Part II:  The NYIR Study was launched by Judge Robert A. Katzmann of the U.S. Court of Appeals and found that “people facing deportation in New York Immigration courts with a lawyer are 500 percent as likely to win their cases as those without representation.” It was also found that “nondetained immigrants with lawyers have successful outcomes 74 percent of the time, those on the other end, without counsel and who were detained, prevailed a mere 3 percent of the time.”

July 19, 2013: City Council Speaker Christine Quinn and Immigrants Rights Groups announce The New York Immigrant Family Unity Project (NYIFUP): The Council announced a one-year pilot program, NYIFUP, “the nation’s first government-funded system of universal representation for immigrants facing deportation.” Immigrants facing deportation have low rates of success when doing so without legal representation, especially given language barriers which often exist. NYIFUP creates a “network of legal counsel for New Yorkers who are detained and at risk of permanent exile.” No universal right to counsel exists, but more coverage is provided by the program, started with $500,000 in funding.

March 26, 2014: Council Member Mark Levine sponsors Intro. 0214: The legislation would require that legal counsel be provided to tenants and homeowners who are facing “eviction, ejectment or foreclosure proceedings” and create a Civil Justice Coordinator position. Civil courts do not guarantee a “right to counsel” as criminal courts do and this bill is an attempt to provide that counsel, to level the playing field for tenants who are unable to seek it on their own. The bill had 39 sponsors as of mid-June 2015, but has not been given a committee hearing.

June 2014: Right to Counsel NYC Coalition is formed: Created to build a citywide movement that works to establish New York City as first in the nation to establish a right to counsel for tenants in housing court. Coalition members include The Community Development Project at The Urban Justice Center, Bronx Defenders, Legal Services-NYC, and others.

June 11, 2014: Council Members and housing activists rally on City Council steps: “By no definition are tenants getting equal justice in housing court, where only 10 percent of tenants have legal representation and 90 percent of landlords have attorneys,” said Council Member Mark Levine at the rally with Public Advocate Letitia James, Council Member Vanessa Gibson, and others.

June 26, 2014: New York City Council includes $4.9 million funding for NYIFUP: “New York City will become the first jurisdiction in the nation to have a functioning public defender system for immigrants facing deportation. In New York City, no family will have a loved one locked up and deported simply because they cannot afford a lawyer,” said Council Member Carlos Menchaca, chair of the Council’s Committee on Immigration. NYIFUP is able to provide legal coverage to all eligible immigrants in New York immigration court, with over 1,300 immigrants served.

September 23, 2014: Council Speaker Melissa Mark-Viverito, the Robin Hood Foundation and New York Community Trust announce the Unaccompanied Minor Children Initiative: A $1.9 million public-private partnership that provides funding for legal organizations who are supporting “free legal representation and access to social, mental health, and medical services for more than a thousand unaccompanied minor children appearing on the Juvenile and Surge Dockets at the New York Immigration Court.” Funding is mostly focused on “increasing access to counsel” for children in the most urgent need.

December 16, 2014: The Times features former Justice Critical of Housing Court: “Emily Jane Goodman, a retired justice of the New York State Supreme Court, said Housing Court was her ‘worst’ experience on the bench. “Housing Court is the most unbalanced, unfair and unjust court in our system, and the biggest problem is lack of legal representation,” Ms. Goodman said. “Tenants do not know their rights, are frightened, intimidated, enter agreements they do not understand and cannot possibly fulfill,” she said. “Typically, they may consent to a judgment of eviction and agree to pay a sum of money they have no ability to raise.”” Goodman said in the Times’ “Push to Provide Lawyers in New York City Housing Court Gains Momentum.”

February 11, 2015: Council Speaker Melissa Mark-Viverito introduces “The people’s law firm” in 2015 State of the City: With more than 1.25 million low-income New York City residents without access to legal services, Mark-Viverito proposes “the people’s law firm” or “El Bufete del Pueblo” in the form of an Office of Civil Justice. The OCJ would prepare an “annual survey” to assess the “unmet civil legal services needs among low-income NYC residents”, develop a five-year plan based off of these surveys, make budget recommendations on the funding of civil legal service programs, explore free and low-cost civil legal service programs, and provide outreach and education about the programs.

April 15, 2015: Council Member Levine and Council Speaker Mark-Viverito submit Intro. 0736: The legislation outlines an office in charge “with assessing the need for civil legal services throughout New York City.” The bill will create an Office of Civil Justice and a Coordinator position which will review the budget of agencies with civil justice programs and make recommendations to the Mayor; prepare an annual report for the Mayor and Council of the civil legal service needs of low-income residents and the availability of that service, what those civil legal matters concern and concentrations of these matters by area or populations; ascertain the effectiveness of civil legal service programs; “serve as liaison between providers of low-cost or free legal services” and those residents in need of civil legal services; and also create a five-year plan.

The bill is aimed at helping prevent unnecessary and unjust evictions and deportations, and at ensuring that low-income New Yorkers have the legal representation they need in crucial life-changing situations. The coordinator will be tasked with making sure that already existing low-cost or free legal representation is available to the low-income residents who need it. The office will have an initial budget of $2 million and will be slotted under Steven Banks, commissioner of the Human Resources Administration (HRA), which runs public benefit programs for low-income New Yorkers.

May 26 & 27, 2015: City Council Committee on Courts and Legal Services, then full City Council pass Intro. 0736: The bill was unanimously passed in committee and then through the full City Council the next day. It is sent to the mayor’s desk for signature on June 16, 2015.

At the bill-signing on Tuesday, June 16, Council Member Levine said, "The truth is what's happening in housing court, immigration court, any civil arena today doesn't meet a reasonable standard of justice. It's a place where if you don't have money, you're on your own, you don't have an attorney," but "today we're taking a step forward by putting in place the infrastructure that we need now that we're growing the funding and hope to continue to grow it. The kind of infrastructure that we've had on the criminal side, which for years has had a criminal justice coordinator, we're now catching up on the civil side."

by Erika Wang, Gotham Gazette

Council to Examine How City Schools Violate State Phys Ed Law

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Soccer (photo: @NYCParks)

On May 5 City Comptroller Scott Stringer released “Dropping the Ball,” an analysis revealing that 28 percent of New York City public schools lack a designated physical education space and 32 percent of schools are without a full-time, certified physical education teacher. In total, there are over 400,000 students in New York City public schools that don’t have access to a “full-time, certified PE teacher,” “attend a school without a physical fitness space” or “attend a school that does not have access to an outdoor school yard or nearby yard,” according to Stringer’s report.

Current New York City physical education programming and the city Department of Education (DOE) are not in compliance with State Education Department regulations on physical education. This is often the case in terms of students’ time spent in physical education classes and whether they are taught by certified physical education teachers. On Wednesday, the New York City Council will hold an oversight hearing on the issue and consider a bill that would require the DOE to submit a report on the state of physical education in New York City public schools to the Council and also post the report on the DOE website.

The minimum requirement for students’ physical education in New York State varies by grade level. Instruction in grades K-6 requires classroom teachers be under the supervision of a certified physical education teacher and that students have at least 120 minutes per week of physical education. But from grades K-3 the students must participate in a physical education program daily while students from grades 4-6 can participate in a physical education program no less than three times a week. Students in grades 7-12 must have physical education three class periods per week in one semester and for two periods per week in the other semester with a certified physical education teacher supervising.

New York State law requires that students in middle school and high school have a certified physical education teacher, however, according to Stringer’s report, 230,000 students lack a certified physical education teacher.

While Stringer’s office requested information about certified physical education teachers, the number of minutes of physical education programming per week, class sizes, and access to indoor/outdoor space for physical education instruction, the DOE only provided “partial” data, keeping the Comptroller’s office from making a “complete analysis,” according to the findings. With the partial data the comptroller’s office was able to analyze whether schools have full-time certified physical education instructors and whether schools have indoor facilities or access to outdoor facilities where physical education programming can take place.

Stringer’s report is also not the first of its kind. Former Comptroller John Liu, Stringer’s predecessor, released an October 2011 management audit of New York City elementary schools, finding that of the 31 schools evaluated, every single one was not in full compliance with the State Education Department’s physical education regulations. During school visits, officials at 84 percent of the 31 schools were unable to tell the Comptroller’s office what the physical education requirements were and 65 percent of the officials didn’t know any of the physical education requirements.

Liu’s audit and Stringer’s recent report point to a persistent systemic issue wherein New York City schools are not meeting physical education requirements. Liu’s office made seven recommendations to the DOE, but while the agency agreed with five of the seven recommendations, it disagreed with two that are now at the root of the City Council bill. According to the audit, the DOE disagreed “with the recommendation to ensure that the DOE adequately monitors schools’ compliance with physical education requirements” and didn’t directly address the recommendation requiring principals to certify whether or not students are receiving the minimum physical education requirement.

In February, City Council Member Elizabeth Crowley introduced the bill, Intro. 0644, which will be the focus of Wednesday’s oversight hearing. A first hearing for the bill, no vote will be taken until the next committee meeting, if the bill is given a vote at all. If it is passed by committee, it would then move to a full Council vote before heading to the mayor’s desk for his signature into law.

With its reporting requirements, Crowley’s bill is similar to one passed by the Council in 2013. Intro 0925-2012, passed 49-0 (with two excused), requires the DOE to provide data on city arts education programs and, specifically, on if New York State instructional requirements are being met. The bill was signed into law by former Mayor Michael Bloomberg on December 17, 2013 and the first report on compliance with New York State regulations appeared in the DOE’s 2012-2013 Annual Arts in Schools report.

Some of the components the new phys-ed bill requires in the relevant report are the frequency and minutes of physical education at each school, whether or not the supervisors are certified to teach physical education, how many certified physical education teachers are providing instruction at the school, and all the designated on-site physical education spaces available and off-site spaces that can be used for physical education by the school. The report must also disaggregate the number of students who are receiving less physical education than the state minimum by race, ethnicity, gender, and whether or not they are English-language learners or receiving special education services.

Since its introduction in February the bill has gained 39 sponsors, including the Chair of the Health Committee, Corey Johnson, the Chair of the Education Committee, Daniel Dromm, and the Public Advocate, Letitia James.

In anticipation of Wednesday’s hearing, advocacy groups are already working on revisions of the bill in order to provide more clarity and specificity to what the report submitted by the DOE would be required to cover. Advocates and council members want to ensure that the bill meets its key purpose of making sure the DOE provides useful data about the state of physical education programs in city schools, which will help policy-makers and the general public to be more informed.

Following the bill’s February introduction, Comptroller Stringer’s May report only strengthened the evidence that there is need for more oversight and accountability regarding physical education programming. Significant shortcomings in terms of certified phys-ed teachers and designated phys-ed spaces at city schools is no shock to those familiar with physical education in New York City schools. Stringer’s report shows nearly one third of schools lacking a full-time certified physical education teacher and a third of schools lacking designated space.

Srecko Mavrek, a certified physical education teacher and the President of The New York State Association for Health, Physical Education, Recreation and Dance (NYS AHPERD), told Gotham Gazette that he was “not really surprised” by Stringer’s report. What Mr. Mavrek hadn’t expected was “such a detailed report and being so positive about [the importance of] physical education."

Mavrek was referencing that even though physical education has proven to have a number of benefits for students, it is often still marginalized in discussions about education, overshadowed by other academic subjects like math and reading. Phys-ed teachers are at times not evaluated in the same manner as other teachers, some evaluated relying on how students score on tests in other subjects for which there are standardized exams. Chalkbeat NY reports that “thousands of teachers will be rated in large part based on test scores of subjects and students that they do not teach” because there is no state system for measuring student’s physical education learning.

Studies have shown positive effects of physical education on academic success as well as health. A 2009 special report by the New York City Health Department and the Department of Education found a “strong association between fitness and academic success,” with students scoring in the top 5 percent on their NYC FITNESSGRAM outscoring those in the bottom 5 percent “by an average of 36 percentile points on standardized academic tests.”

The NYC FITNESSGRAM is a tool developed as part of physical education to assess citywide fitness as measured by muscular strength and endurance, aerobic capacity, flexibility, and body composition. On top of this, eleven of fourteen published studies from 1967-2011, analyzing about 58,000 students, found that “regular physical activity is associated with improved academic performance,” according to a 2009 research brief by Active Living Research, a children’s health advocacy organization.

The same special report by the NYC Health Department and Department of Education found that over 20 percent of New York City public school students were obese. Combined with a CDC report covering 2010-2011, which found that 5.7 percent of K-8 students in city public schools suffer from severe obesity, increasing regular physical activity appears essential - which is why there are state regulations.

But even with this kind of research physical education has not garnered enough funding and support to incentivize fully-fledged programs that meet state standards. The 2014 CDC State Indicator Report on Physical Activity shows how far New York State is lagging behind others. The estimate of students in grades 9-12 nationwide participating in daily physical education is almost 30 percent while the rate in New York State is just 18.9 percent. (Across the river, over 45 percent of New Jersey students were reported having daily physical education.)

With the recommendations from former Comptroller Liu’s 2011 audit still pertinent, many are pushing for more city accountability to follow state phys-ed regulations, including Kelly Moltzan, the Healthy Schools NY Program Coordinator for Bronx Health REACH.

“We see a really weak accountability system within the principal checklist system,” Moltzan told Gotham Gazette, referring to the Principal’s Compliance Checklist. The checklist does mention physical education requirements but there does not seem to be much follow up, pointing to a key issue in terms of the chain of command from principals to the city DOE to the state level.

“Even though principals might actually want to support more wellness they’re not sure how to do that because of the mandates they’re getting from the higher administration, just telling them to submit these testing scores, the academic outcomes,” says Moltzan. “There’s not enough integration, not enough support from the city administration in helping them structure their physical education and still meet their testing mandates.” Moltzan says there is a need for a protocols “requiring principals to certify that their physical education system meets the regulations.”

Like many bills the City Council passes, the idea behind phys-ed reporting requirements will be to lead to accountability and improved programming.

Former Comptroller Liu’s audit indicated that the State Education Department said the last time a physical education plan had been submitted by the city DOE was in 1982.

“Until we have that actual information it’s hard to really say what’s happening and what’s not happening,” Moltzan said. “We haven’t been able to get that information, we’re just speaking from our own experience.”

Research by Dr. Stephen Silverman, the chair of the Department of Biobehavioral Sciences at Columbia University’s Teachers College, points to the importance of early motor sill development, which can be aided by proper and regular physical education from a young age. Silverman says that a lack of sound physical education can lead to frustration when young people are asked to perform skills they have not developed and even negative attitudes toward physical fitness. He also acknowledges the connection between physical activity and academic performance.

“If the reports are correct, that kids who are more physically active do better in school, do better on tests, then we want our schools to help children learn the skills so they can feel efficacious to want to participate in the physical activity,” said Dr. Silverman, “and if we’re not providing the time, we’re not providing teachers, we’re not allowing them to learn, that’s not going to happen.”

by Erika Wang, Gotham Gazette

With Negotiations Down to the Wire, Many Demand Assembly Hold Out For Stronger Rent Laws

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Public Advocate James at Friday's press conference (photo: Ben Max)

With rent laws set to expire on Monday city electeds including Public Advocate Letitia James, Assembly Housing Chair Keith Wright, and state Senator Adriano Espaillat are focused on providing tenants with legal help should landlords take advantage of a chaotic situation, while simultaneously pushing for Assembly Speaker Carl Heastie to hold out for the best deal for tenants as he negotiates with Gov. Andrew Cuomo and Senate Majority Leader John Flanagan.

"If the rent laws expire on Monday...we want tenants to know that they will have legal protections and recourses to stay in their apartments," said James at a press conference on Friday at City Hall where she announced her office would make housing lawyers available to tenants while calling on Albany leaders to "do their job."

"We know that there are too many landlords who are looking for any excuse to push out, to evict rent-regulated tenants and make a quick buck," James added. Espaillat and Wright are expected to hold events for tenants over the weekend. (Both men are also competing to replace Rep. Charles Rangel in Congress.)

Tenant advocates appreciate the help but many of them doubt anything horrible will happen to tenants should a deal not be reached by Monday. In fact many advocates celebrated on Thursday when Assembly Democrats rejected an offer from the Cuomo administration that they felt did not significantly address vacancy decontrol, the process by which landlords are allowed to increase rent until apartments are no longer rent regulated. Advocates stress that a strong bill that prevents more apartments from being removed from the affordable housing rolls trumps an on-time deal.

According to a number of sources the Cuomo administration floated a proposal that would have increased the decontrol threshold from $2,500 to $2,700 per month; increased fines for landlords who harass tenants; prevented landlords with outstanding fines from applying for rent increases based on improvements made to apartments; and made the governor's Tenant Protection Unit part of existing statute. The plan would extend the controversial 421-a tax credit for one year.

The Cuomo administration is also trying to link the rent law extension to the governor's prized education tax credit. Sources say the Assembly Majority flatly rejected Cuomo's plan after conferencing the matter. Many members left the capital on Thursday, but Assembly Democrats, at least, are due back on Sunday.

The horse trading is expected to play out all weekend. Senate Republicans are working on a compromise to renew 421-a that combines elements of Mayor Bill de Blasio's proposal and with the old bill.

Sen. Adriano Espaillat said he plans to issue a guide for tenants should the legislature fail to extend the rent laws on Monday but he favors a strong deal over any basic extension. "I'm not going to vote for a basic extension of any kind," said Espaillat. Asked about the floated deal he responded: "A two hundred dollar increase? That's a good meal at a city restaurant. That's how weak it is!" He urged tenants to check their leases so that they know when they actually expire.

On Friday afternoon, Espaillat joined James, Wright, Council Member Jumaane Williams, several of the borough presidents, and others for a brainstorming session about what to do in the case of expired regulations.

Mayor Bill de Blasio participated in a Friday phone conference will AARP members on the importance of renewing the rent laws. The mayor has been pressuring Albany to act, while Cuomo has continued to insist that time has run out for detailed debate over bills.

De Blasio acknowledged that with the lateness of the hour it is unclear whether Albany will renew the rent laws let alone strengthen them, but he also laid out his priorities for enhancing the laws. "We've got to end vacancy decontrol," the mayor said. "That is the way we've lost so many affordable apartments – landlords being able to take them out of rent regulation when they reach a certain rent level. We've got to end that practice. We've got to end the vacancy bonus. That's the way that landlords get a huge uptick in rent whenever an apartment turns over that's rent regulated...And we've got to stop the giveaways to landlords. When they do capital improvements, sure they have a right to make sure that those capital improvements are paid for in the rent, but that's all they should get," said de Blasio.

The mayor called on Albany to act and warned of chaos if the regulations are not renewed.

Many advocates are preparing for a fight over rent laws that could not only go past the Monday deadline but past the scheduled end of session on Wednesday. Senate Republicans have historically pushed negotiations on rent renewal until the last minute to strengthen their hand.

Sen. Espaillat said the Assembly Majority needs to resist any urge to agree to a simple extender to avoid going past the deadline. "We need to continue to push and ask the Assembly and the Governor to make this their priority," said Espaillat, who pointed to Cuomo's recent op-ed in the Daily News where he wrote the city stands to lose 100,000 units of affordable housing if nothing is done. Cuomo has threatened to call the legislature in for special session after Wednesday if no deal on rent regulations is reached.

Rent regulations "has to be the priority," Espaillat said. "It needs to get done first. If Senate Republicans want their [property] tax cap then they need to do this first. A one year extender won't work. If there is no political will to do it this year, there certainly won't be any next year during a political year when everyone is busy running for reelection."

Public Advocate James also called on legislators to stay in Albany until a deal is done. "We urge Albany to stay in Albany, all those legislators in Albany to not return home - to stay in Albany and to demand justice and not just to extend rent regulations but to expand them and strengthen them," said James. "We want some elected officials in Albany to stand up for the working people in the City of New York. And we want action and we want action now."

by David King, Albany editor, Gotham Gazette

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