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ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Attorneys for New York State Coalition for 853 Schools, Inc.





Of Counsel:

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Robert E. Biggerstaff, Esq.






ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Printed on 100% Recycled Paper



ΚΚΚΚΚΚΚΚΚΚΚ This Amicus Brief is submitted for the Court's consideration in connection with the State of New Yorkβs pending appeal from the January 31, 2001 Decision and Order of Supreme Court (DeGrasse, J.).Κ As hereafter discussed, said decision properly held, inter alia, that the educational system promulgated and implemented by defendant State of New York is violative of the Education Article of the New York State Constitution.



ΚΚΚΚΚΚΚΚΚΚΚ The litigation below consisted of a challenge to the constitutionality of New York State's system of public education funding.Κ The plaintiffs alleged, with specific reference to those public schools found within New York City, that this State's public school system fails to provide New York students with a "sound basic education".

ΚΚΚΚΚΚΚΚΚΚΚ This Brief is submitted by the New York State Coalition of 853 Schools, Inc., representing thirty-four (34) private not-for-profit schools, approved pursuant to Chapter 853 of the Laws of 1976, commonly known and referred to as the "853 Schools."Κ The Coalition seeks amicus status before this Court in connection with the Stateβs appeal.ΚΚΚ



A.Κ The 853 Schools


ΚΚΚΚΚΚΚΚΚΚΚ This Amicus Brief is submitted by the New York State Coalition of 853 Schools Inc., on behalf of 853 Schools which provide educational and related services to children suffering from handicapping conditions, including cognitive, emotional or physical disabilities which interfere with the children's abilities to benefit from public education in a regular educational setting (see, Chapter 853 of the Laws of 1976, as amended, Education Law €€ 4001 et seq., and 4401 et seq.;Κ Social Services Law, Art. 6; and Mental Hygiene Law, Art. 41.)Κ In addition to providing educational services, the 853 Schools offer counseling, occupational therapy, school health services, speech pathology and psychological services to their students (see, Education Law € 4002 [2] [g]).Κ These schools fulfill the federal and state mandate to provide an appropriate education in the least restrictive environment to all children with disabilities.Κ In addition to serving children with disabilities, the 853 Schools serve children who have been adjudicated persons in need of supervision (PINS) and juvenile delinquent (JD) under the Family Court Act.

ΚΚΚΚΚΚΚΚΚΚΚ With respect to the federal mandate, the Individual with Disabilities Education Act (IDEA) provides in part as follows:

ΚΚΚΚ A State is eligible for assistance under this subchapter for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets each of the following conditions.


ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ (1) Free appropriate public education




ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ A free appropriate education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended. or expelled from school.


* * * * *






ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature of severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.


(20 USC € 1412).


ΚΚΚΚΚΚΚΚΚΚΚ With respect to the State mandate, Chapter 853 of the laws of 1976, as amended, provides in part as follows:

ΚΚΚΚΚΚΚΚΚΚΚ Education Services


1.Κ Each child between the ages of five and twenty-one who resides in a child care institution...shall be entitled to receive a free and appropriate education in the least restrictive environment for that child. (Education Law €4002(1)).


ΚΚΚΚΚΚΚΚΚΚΚ Referral and evaluation for special education services or programs.


1.Κ Any pupil suspected of having a handicapping condition may be referred for special education services or programs by the parent...or professional staff member of the school...physician, judicial officer,...the pupil himself or herself...(Education Law €4001-a(1)) (see, also NYS Constitution Art. XI €1).


ΚΚΚΚΚΚΚΚΚΚΚ Given these mandates, the 853 Schools provide both residential (see, Education Law, Article 81) and non-residential (see, Education Law, Article 89) services to their students, dependent upon the specific needs of each individual student.Κ Students are referred to the 853 Schools primarily by, inter alia, local school districts and social services districts, upon a determination, among other things, that they suffer from a handicapping condition or from parental neglect or abuse, which requires specialized attention and education (see, Education Law €€ 4401-a, 4402 and 4005; Social Services Law, Art. 6 and Mental Hygiene Law Art. 41).Κ

ΚΚΚΚΚΚΚΚΚΚΚ But for the 853 Schools, these children would not be served by our educational system.Κ As such, the 853 Schools provide an essential part of the continuum of care that is necessary in order to assure that all children in this State receive the sound and basic education that is guaranteed by the State Constitution.

ΚΚΚΚΚΚΚΚΚΚΚ Currently, there are approximately one hundred thirty 853 Schools located throughout the State. Most of these schools are operated by childcare institutions incorporated under the Not For Profit Corporation Law or are approved schools chartered by the NYS Regents pursuant to Education Law, Article 5.Κ Under Education Law € 4002, children residing in a child care institution licensed by the Office of Children and Families Services ("OCFS") shall receive a free and appropriate education in the least restrictive environment.Κ Appropriate educational placements include regular public schools, Bureau of Cooperative Education Services schools (BOCES), a special act school district, an approved private school (853 School) operated by a childcare institution or an approved private non-residential school (853 School), among others.

ΚΚΚΚΚΚΚΚΚΚΚ Under Education Law €4401-a, children may be referred for evaluation if suspected to have a disability.Κ Placements of these children are also determined by the Committee on Special Education (CSE) through development of an Individualized Education Plan (IEP).Κ Appropriate placements for such children include special education classes, BOCES, private residential schools and private non-residential schools, among others.Κ

ΚΚΚΚΚΚΚΚΚΚΚ For the convenience of the Court, set forth below is a brief outline of two typical 853 Schools and this outline is offered to edify the Court with respect to 853 Schools as a whole.


B.Κ LaSalle School, Inc.


ΚΚΚΚΚΚΚΚΚΚΚ The LaSalle School, Inc., New York (hereinafter "LaSalle") is a not-for-profit corporation organized under the New York Not For Profit Corporation law, licensed as a child care institution by OCFS under Social Services Law €373, approved under N.Y. Education Law Articles 81 and 89 by the N.Y.S. Department of Education (SED) and qualified as a tax exempt organization under € 501(c)(3) of the Internal Revenue Code.

ΚΚΚΚΚΚΚΚΚΚΚ Originally an orphanage, LaSalle was established in 1854 by the Christian Brothers as the St. Vincent's Male Asylum, and has evolved over the past 147 years into a residential treatment center and community-based foster care preventive agency.Κ LaSalle provides both the educational and residential child care component of a comprehensive multi-treatment program and is nationally accredited through the Council of Accreditation, licensed by the State Office of Children and Family Services ("OCFS") and approved by the State Educational Department.

ΚΚΚΚΚΚΚΚΚΚΚ LaSalle offers a full Junior and Senior high school curriculum as well as highly personalized counseling services for the 100 adolescent males in residence and for up to 50 students from the community who attend through the day services program.Κ All students enrolled in LaSalle are in need of intensive specialized education, which under State regulations must be provided by New York State certified teachers and teaching assistants.Κ LaSalle is structured to provide education services to students who reside at LaSalle, as well as non-residential students, who live at home and are placed at LaSalle by local public school district CSEs, pursuant to Articles 81 and 89 of the State Education Law.Κ At any time, LaSalle serves students from 20 or more counties in the region, including counties North of New York City to the Adirondack region, and counties West of Albany to Monroe County (Rochester).

ΚΚΚΚΚΚΚΚΚΚΚ The residential students are housed at the Residential Treatment Center, which has the capacity to provide foster care services to 100 individuals.Κ Services are provided to boys aged 12 through 18, and their families, who are often emotionally disturbed and experiencing great difficulty in their homes, schools and communities.Κ The permanency plan for most youngsters in placement is reunification with their families.Κ LaSalle offers programs which specialize in areas of substance abuse and juvenile sexual victimization and/or offending behaviors.Κ LaSalle has developed models for reduced lengths of stay in foster care with intensified family and after care services, that include a team approach to treatment supported by child care workers, clinical workers and special education teachers.Κ The programs are geared to encouraging emotional maturation of its children, and an improvement in their academic performance, so that they can return to their families or to a less-restrictive level of care and educational placement.

C.Κ The Center for Developmental Disabilities, Inc.


ΚΚΚΚΚΚΚΚΚΚΚ The Center for Developmental Disabilities, Inc. (hereinafter the "Center") was founded by a gathering of six (6) families in a basement in Levittown, New York.Κ Formerly known as the Nassau Center for the Developmentally Disabled, Inc., the Center is a not-for-profit corporation described in € 501(c)(3) of the Internal Revenue Code.Κ Today, the Center maintains a school campus, an adult treatment center, ten (10) group homes in Nassau County, New York, and two apartments in Suffolk County, New York.

ΚΚΚΚΚΚΚΚΚΚΚ The Center serves children suffering from autism and other developmental disabilities.Κ Students served by the Center are referred mainly by parents and school districts. Over 95% of the Center's students originate from Nassau and Suffolk Counties and the City of New York.Κ All programs maintain active waiting lists and follow-up to maximize appropriate enrollment levels.

ΚΚΚΚΚΚΚΚΚΚΚ The Center is approved by SED, Office of Mental Retardation and Developmental Disabilities (OMRDD) and OCFS to provide services to children referred by local school districts.Κ The Center has both residential and non-residential programs to provide special education to students aged 5 to 21 with pervasive developmental disabilities.Κ Additional services include physical and occupational, art, music, speech\language pathology and physical education.Κ A vocational program has both in-house and community based experiences.Κ Classes are required by state regulations to be conducted by certified teachers, assisted by paraprofessionals according to State-mandated pupil-to-staff ratios in accordance with each child's IEP pursuant to Articles 81 or 89 of the NYS Education Law.Κ The program goal is to maximize the potential of every student, to assist the student in acquiring and maintaining new skills and to enhance the studentsβ abilities to participate more effectively in their community.Κ

D.Κ Funding for the 853 Schools


ΚΚΚΚΚΚΚΚΚΚΚ The 853 Schools, provide public schooling (see, 20 USC €1412) for disabled and needy school children, but as private not-for-profit corporations do not have the authority to levy or collect taxes, and have no significant sources of revenues [1] , other than tuition payments received from the local school districts and social services districts in each school's geographic locale.

ΚΚΚΚΚΚΚΚΚΚΚ The 853 Schools receive tuition funding from local school districts and county departments of social services (see, Education Law €€4004 and 4406) depending, in part, upon which entity places the student in the school.Κ Annual tuition rates per student are set by the Commissioner of Education with the approval of the Director, Division of Budget ("DOB") and promulgated by SED for both the residential and day programs at the schoolΚ (see, Education Law €€ 4003 and 4405).Κ These rates are established in accordance with a tuition rate methodology, which is established by SED and approved by DOB.Κ These rates are set each year and are limited according to fiscal trends of the public school districts in the school's geographic area.Κ These rates include direct services and facilities/administration components.Κ In general, the local social services districts that contract with the schools for residential foster care expect that, while in residential foster care, children will be enrolled in the schoolsβ educational programs.Κ Day students who attend the campus school but do not reside on campus are referred by the local school districts and tuition for those children is paid by those referring school districts.

ΚΚΚΚΚΚΚΚΚΚΚ The tuition rate setting methodology, required by Education Law € 4405, and promulgated through regulations of the Regents (8 NYCRR Part 200) and SED policy directives, establishes tuition rates annually for each 853 School using total costs from two years prior to the rate year (base year).Κ These costs are then allowed (used) in the rate computation of total costs per child per day, provided, however, the increase from the prior rate to the new rate cannot exceed a "growth screen".Κ The growth screen is based on overall cost increases in the BOCES region in which the school operates.Κ The rate is also subject to a parameter (limit) on "non-direct" (non-instructional) costs, which include administrative and property related costs.Κ These non-direct costs may not exceed a certain percentage (30%) of total allowed costs, and any non-direct costs exceeding that percentage are disallowed for rate setting purposes.Κ As a result, the 853 Schools are not reimbursed for such costs even though the costs are actual costs of operation which must be paid.Κ Such disallowances often result in program cuts or reductions in other approved expenditures.

ΚΚΚΚΚΚΚΚΚΚΚ Significantly, up until 1995-96, the tuition rate setting methodology provided for a cost of living adjustment which was applied to the total costs of the base year.Κ This annual adjustment was intended to account for the increase in costs due to inflation over the two-year period from the base year to the current year.Κ However, from rate years 1995-1996, to 1998-1999, the cost of living adjustment was set at zero.Κ Further, in 1998, regulations were amended to eliminate the reference to the cost of living adjustment entirely.Κ And while for the current year, 2001-2002, a cost of living adjustment was given, 853 Schools did not receive an increase in rates to compensate for the increased cost of living for a total of six years.

ΚΚΚΚΚΚΚΚΚΚΚ As a result, 853 School program funding, which was woefully behind funding for similar programs in BOCES and regular public schools in the early 1990s, has fallen even further behind in recent years.Κ This underfunding is demonstrated by the lack of adequately trained and experienced teachers, the high turnover of teaching staff, the lack in many schools of adequate facilities, space and equipment,Κ the inability to maintain programming at levels required by Regents standards and the inability to serve most of the students in need, that are referred as shown by the high ratio of referrals to placements.Κ This ratio is typically in the range ofΚ 4:1 or 5:1.Κ At a school serving 100 children, the numbers of referrals annually can reach 400 to 500, meaning that hundreds of children are turned away annually and denied the necessary education and related services.


E.Κ Funding for Public School Districts and County Social Services District

ΚΚΚΚΚΚΚΚΚΚΚ Payment to 853 Schools for the tuition for each child referred and placed at an 853 School is made by the referring district, i.e., a public school district, or county social services district [2] pursuant to Articles 81 and 89 of the Education Law.Κ The referring district makes tuition payments monthly and, in turn, receives partial reimbursement in the subsequent year from the State under the Education Law (private excess cost aid) for school districts and under the Social Services Law for social services districts.Κ The balance of the tuition is paid out of local school and county tax revenues.Κ In addition, federal monies are provided to 853 Schools for ancillary services under P.L. 94-142, which monies flow through the state to local education agencies (public school districts) and then to 853 Schools.Κ Financial support for 853 School children and programming comes, therefore, from a combination of local county and school taxes, state aid (to education via "excess cost aid" and to the counties via the Social Services "Block Grant") and federal aid programs.

ΚΚΚΚΚΚΚΚΚΚΚ Each year the Governor and State Legislature approve the State budget and thereby appropriate the amounts payable to school districts for education aid and to the counties for the so-called "Social Services Block Grant," both under the "Aid to Localities" budget bill.Κ The amounts so appropriated are used to reimburse school districts and social services districts for the Stateβs share of tuition payments made in the prior year.

F.Κ Effects of Chronic Underfunding of 853 Schools


ΚΚΚΚΚΚΚΚΚΚΚ The effects of chronic underfunding of 853 Schools are palpable, and appear most clearly in the crisis these schools are experiencing in the recruitment and retention of certified, qualified and experienced teaching staff.Κ In recent years, the schools have raised this issue with the State Legislative, the Executive, the State Education Department and the Regents, and the crisis has not been substantially lessened.

ΚΚΚΚΚΚΚΚΚΚΚ Teacher salaries alone (excluding benefits) at 853 Schools are, on average, $16,000 below salaries at public school districts according to a recent SED survey.Κ A survey conducted by the NYS Coalition of 853 Schools covering approximately the same time period as covered by the SED survey confirms this finding.Κ Because teacher salaries represent more than 70% of a school's budget, the failure of the State to increase tuition rates to keep at least abreast of inflation have eliminated any possibility of closing the gap between 853 School and school district salaries for teaching staff.Κ Because 853 Schools compete for staff with their local school districts, this gap has resulted in high turnover of teaching personnel, which on average is two and one half times as high at 853 Schools as in the public schools (10% to 26%).Κ This turnover comparison becomes even more stark when it is recognized that most public school turnover is precipitated by retirements, and, because 853 Schools provide only minimal retirement benefits, 853 School turnover is primarily attributable to defections of newly certified teachers leaving for public school positions.

ΚΚΚΚΚΚΚΚΚΚΚ High staff turnover year after year is disruptive and destructive to existing programs and prevents any long term planning for program enhancement.Κ In addition, turnover insures that 853 Schools have a significantly less experienced and qualified staff, with fewer advanced teaching credentials, and much greater difficulty in obtaining properly certified teachers, either permanent or provisional.Κ Inasmuch as the most important element of any school program is the quality and effectiveness of the faculty, children at 853 Schools are consistently receiving an education below the minimum Constitutional Standards required.

ΚΚΚΚΚΚΚΚΚΚΚ This state of affairs is particularly troublesome when it is remembered that children served at 853 Schools are the most troubled, most disadvantaged, in our educational system.Κ It is these children who are in the greatest need that we give the least.

ΚΚΚΚΚΚΚΚΚΚΚ Another effect of chronic underfunding is the dilapidated condition of inadequate buildings and facilities at 853 Schools.Κ Many 853 Schools function without adequate space for classes as determined by Regents regulations governing minimum square footage for instructional areas.Κ Some schools even use storage closets as counseling rooms, lack adequate laboratory facilities for science classes, have inadequate gymnasiums and are prevented from participation in inter-scholastic athletics, lack space for administrative staff and are unable to keep up with the steady deterioration which these structures, often in excess of 50 years in age, inevitably experience.Κ

ΚΚΚΚΚΚΚΚΚΚΚ The tuition rate methodology which has been established by SED with approval of DOB (8 NYCRR €200.9) severely restricts growth in rates, thereby drastically limiting a school's capacity to renovate or replace aged and worn-out buildings.Κ In 1991 the Governor and State Legislature recognized this and passed Chapter 698 which enabled twenty-one of the one hundred thirty 853 Schools to access financing through the NYS Dormitory Authority for capital construction and renovation projects.Κ Though Chapter 698 was hailed at that time by the Executive as a major initiative which would be used as a model for state construction financing, it took seven years and two additional pieces of legislation before any projects were financed under Chapter 698.Κ To date, only fifteen schools have financed projects, and the balance of the 130 schools remain without recourse to any feasible means of supporting badly needed school construction.

ΚΚΚΚΚΚΚΚΚΚΚ The environment in which the 853 Schools must operate is not conducive to the development of strong education programs.Κ Many of their teachers are often young, inexperienced, without adequate credentials and struggle to handle the task of educating children with most severe behavior problems, socioeconomic and educational deficits or other disabilities.Κ These teachers often leave for substantially higher paying jobs in the public sector just after obtaining the necessary experience and credentials.Κ Many of the schools function in extremely old, inadequately designed and insufficiently maintained facilities, totally inappropriate and insufficient for the difficult task they are assigned.Κ Many of the schools often operate without the necessary instructional equipment and teaching supplies.Κ Despite best efforts of dedicated faculty and staff, the children receive an education which consistently fails to meet even minimum standards expected in the public school system.Κ This abysmal environment is the direct effect of the chronic underfunding of 853 Schools by the State.ΚΚ


A.ΚΚΚΚΚΚΚ Levittown

ΚΚΚΚΚΚΚΚΚΚΚ The instant litigation is not the first constitutional challenge to New York's system of education.Κ In Board of Educ., Levittown Union Free School Dist. v Nyquist (57 NY2d 27), the New York Court of Appeals considered a challenge to the system based upon certain inherent inequalities between the quality of educational opportunity available in different school districts.Κ The plaintiffs in that case argued that the present system of school funding in this State resulted in certain school districts being better funded than others, and thereby able to offer better educational opportunities.Κ According to the Levittown plaintiffs, this disparity violated the equal-protection clauses of the Federal and State constitutions, and was also in violation of the Education Article found in New York's constitution.Κ The Court of Appeals disagreed.

ΚΚΚΚΚΚΚΚΚΚΚ In its decision, the Levittown Court recognized, as it must, the following:


public education is unquestionably high on the list of priorities of governmental concern and responsibility, involving the expenditure of enormous sums of State and local revenue, enlisting the most active attention of our citizenry and of our Legislature, and manifested by express articulation in our Constitution (Id., at 43).


Despite the above, the Court was constrained to conclude that education is not a "fundamental right" worthy of a strict-scrutiny analysis under the equal protection clauses (Id., at 44).Κ Accordingly, the Court considered only whether there exists a "rational basis" to justify the State's present system of school funding (Id.).Κ Finding that a rational basis does in fact exist to support said system of funding, the plaintiffs' equal-protection claims were dismissed (Id., at 45-47).

ΚΚΚΚΚΚΚΚΚΚΚ The Court next addressed the Levittown plaintiffs' claims under the Education Article of our State Constitution (NYS Const., Art. XI €1).Κ This article provides as follows:

The legislature shall provide for the maintenance and support of a system of free common schools, wherein the children of this state may be educated.


The Court of Appeals rejected the notion that the Education Article requires that different school districts provide educational experiences and opportunities that are "equal" or, for that matter, "substantially equivalent" to one another (Id., at 47-48).Κ Rather, according to the Court of Appeals, the constitutional framers intended the Education Article simply to guaranty "a State-wide system assuring minimal acceptable facilities and services in contrast to the unsystematized delivery of instruction then in existence within the State" (Id., at 47).Κ According to the Court, the State's model of educational funding does not violate the Education Article, given the fact that New York's funding for education exceeds that in all other states except for two (Id., at 48).Κ Furthermore, according to the Court, determinations regarding the extent and allocation of funds toward education lie within the exclusive province of the Legislature.Κ As a result, the Court would be loath to override the State's policies in this regard, unless the scheme of educational funding is replete with "gross and glaring inadequacy" (Id., at 48).Κ Insofar as the Levittown plaintiffs had failed to show such a "gross and glaring inadequacy" in educational funding, the Court found the State's system to be in compliance with the Education Article (Id., at 48-49).

ΚΚΚΚΚΚΚΚΚΚΚ Although the plaintiffs were ultimately unsuccessful in Levittown, the decision represents an important landmark with respect to the judicial review of our educational scheme.Κ As stated by the Court of Appeals, the Education Article imposes a constitutional floor with respect to educational adequacy, and guaranteed that every New York student receive a "sound basic education" (Id., at 48).Κ However, because the Levittown plaintiffs had failed to claim a deprivation of "a sound basic education", and relied simply upon principles of inequality, the Court of Appeals dismissed the plaintiffs' claims under the Education Article.

B.ΚΚΚΚΚΚΚ Campaign for Fiscal Equity v. State

ΚΚΚΚΚΚΚΚΚΚΚ In Campaign for Fiscal Equity v State of New York (86 NY2d 307) (hereinafter "CFE"), the Court of Appeals was faced with another challenge to the State's educational system.Κ The CFE plaintiffs alleged, inter alia, that the State's educational system fails to provide students in New York City public schools the education to which they are entitled under the Education Article, and that said system disproportionately and detrimentally impacts upon New York's minorities, in violation of various regulations promulgated under Title VI (see, 42 USC € 200d et seq.).Κ A majority of the closely divided Court [3] concluded that the plaintiffs had alleged a valid cause of action under the Education Article, while the Court unanimously agreed that a violation of Title VI's implementing regulations had properly been alleged.


ΚΚΚΚΚΚΚΚΚΚΚ 1.ΚΚΚΚΚΚΚΚ Circumventing Levittown

ΚΚΚΚΚΚΚΚΚΚΚ At the outset, it may appear that the claims levied in CFE were identical to those previously rejected by the Court of Appeals in Levittown.Κ However, according to the Court, the plaintiffs in Levittown had failed to directly allege that the existing educational system in this State fails to provide the "sound basic education" that is guaranteed by the Education Article.Κ Rather, the Court found that Levittown turned on whether the system of unequal educational funding was constitutional, as opposed to whether the system of education was, itself, constitutionally valid (Id., at 315).Κ Unlike Levittown, such an allegation was placed squarely before the Court in CFE.


ΚΚΚΚΚΚΚΚΚΚΚ 2.ΚΚΚΚΚΚΚΚ Education Article Claim


ΚΚΚΚΚΚΚΚΚΚΚ In addressing the plaintiffs' claims under the Education Article, the Court of Appeals reiterated the holding of Levittown:Κ "the Education Article imposes a duty on the Legislature to ensure the availability of a sound basic education to all the children of the State" (Id., at 315).Κ According to the Court of Appeals, the Legislature is duty-bound to satisfy a "constitutional floor with respect to educational adequacy * * * and * * * we are responsible for adjudicating the nature of that duty" (Id., at 315).



ΚΚΚΚΚΚΚΚΚΚΚ In "adjudicating the nature of [the] duty" imposed by the Education Article, the Court of Appeals set forth its interpretation of a "sound basic education":

Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.Κ If the physical facilities and pedagogical services and resources made available under the present system are adequate to provide children with the opportunity to obtain these essential skills, the State will have satisfied its constitutional obligation (Id., at 316).


The above statement provides a result-oriented guideline as to what the Court of Appeals considers to be "a sound basic education."Κ In other words, a constitutionally acceptable education should result in children being given the opportunity to obtain the literacy, calculating and verbal skills that are necessary in order to serve as productive members of our society.

ΚΚΚΚΚΚΚΚΚΚΚ The Court of Appeals further offered guidelines to reflect the characteristics of an educational system which would pass constitutional muster and therefore "enable children to eventually function productively as civic participants capable of voting and serving on a jury" (Id., at 316).Κ Although the Court explicitly refused to "definitively specify what the constitutional concept and mandate of a sound basic education entails", it held that certain "essentials" must be provided by the State's educational system:

Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat and air to permit children to learn.Κ Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks.Κ Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas (Id., at 317).


According to the Court, the above elements constitute a "template * * * of what the trier of fact must consider in determining whether defendants have met their constitutional obligation" (Id., at 317-318).

ΚΚΚΚΚΚΚΚΚΚΚ The Court of Appeals' decision does not define or quantify that which constitutes "minimally adequate" facilities, instrumentalities or instruction, as referenced above.

The Court did, however, discuss the relevance of various standards promulgated by the Board of Regents and the Commissioner of Education in measuring the acceptability of the State's educational system.Κ Although plaintiffs argued that compliance with such standards should be synonymous with "a sound basic education", the Court disagreed:Κ

because many of the Regent's and Commissioner's standards exceed notions of a minimally adequate or sound basic education - some are also aspirational - prudence should govern utilization of [these] standards as benchmarks of educational adequacy (Id., at 317).


According to the Court, proof of noncompliance may be helpful in ascertaining the adequacy of the State educational system, but such noncompliance is not, in-and-of-itself, sufficient to demonstrate a violation of the Education Article (Id.).Κ Similarly, the Court cautioned against relying too heavily upon proof of students' performance upon standardized competency examinations, finding that such results may be probative on the issue of educational adequacy, but are not definitive of the issue (Id.).


ΚΚΚΚΚΚΚΚΚΚΚ The Court of Appeals provided further insight into a proper Education Article analysis by alluding to the requisite causal link which must be established between any alleged deficiency in the educational system and some action on the part of the State.Κ In the context of this particular case, the Court of Appeals pointed out that plaintiffs are obligated to demonstrate a causal connection between the State's system of school funding and any proven failure of New York City public schools to provide a sound basic education (Id., at 318).Κ According to the Court, however, an extended discussion on the issue of causation "is premature given the procedural context of this case" (Id., at 318).

ΚΚΚΚΚΚΚΚΚΚΚ Judge Simons, in a dissenting opinion, concluded that the issue of causation was fatal to the plaintiffs' claims in CFE.Κ In his dissenting opinion, Judge Simons first found that the majority had improperly broadened the scope of the Education Article as originally interpreted by the Court in Levittown.Κ In addition, however, Judge Simons found the requisite element of causation to be lacking, because the plaintiffs had failed to sufficiently allege that the State's financial aid to education is "grossly inadequate" (Id., at 340 [Simons, J., dissenting]).Κ In so doing, Judge Simons focused upon certain language in Levittown, which stated as follows:

Because decisions as to how public funds will be allocated among the several services for which by constitutional imperative the Legislature is required to make provision are matters peculiarly appropriate for formulation by the legislative body * * * , we would be reluctant to override those decisions by mandating an even higher priority for education in the absence, possibly, of gross and glaring inadequacy (Levittown, 57 NY2d at 48).


According to Judge Simons, the plaintiffs' conclusory characterization of the State's funding as "grossly inadequate" was insufficient to survive dismissal (CFE, 86 NY2d, at 340 [Simons, J., dissenting]).Κ Furthermore, according to Judge Simons, there was "serious doubt" as to whether any causal connection existed between the State's scheme and the education deficiencies which plagued the New York City students in CFE (Id., at 341).Κ Given the fact that New York City's funding of its schools has been in steady decline, Judge Simons found that "a court could justifiably conclude as a matter of law that the shortcomings in the City schools are caused by the City's failure to adequately fund City schools, not from any default by the State of its constitutional duty" (Id., at 341).



ΚΚΚΚΚΚΚΚΚΚΚ In CFE, the majority of the Court of Appeals found that plaintiffs had stated a valid claim that the educational system of this State failed to provide a "sound basic education" as required by the Education Article.Κ The majority provided guidelines to assist the trial court in assessing the adequacy of the State's system, by referencing both the results (or "outputs") of the system, as well as the assistance provided to the State's schools (or "inputs").Κ No guidance was given, however, on the issue of causation - i.e. the connection between the State's funding of education and the substantive quality of that education.

C.ΚΚΚΚΚΚΚ CFE v State:Κ The Trial

ΚΚΚΚΚΚΚΚΚΚΚ As a result of the Court of Appeals' decision in CFE, this matter was remanded for discovery and an eventual trial on the following issues:

ΚΚΚΚΚΚΚΚΚΚΚ (1)ΚΚΚΚΚΚΚ Does New York City's public educational system violate the Education Article?


(2)               Does New York City's public school system violate Title VI's implementing

regulations? [4] Κ Following a seven-month trial, consisting of 111 days of testimony given by 72 witnesses and the receipt of more than 4,300 documents into evidence, the New York County Supreme Court (DeGrasse, J.) issued an 185-page decision in which it answered each of the above questions in the affirmative.

ΚΚΚΚΚΚΚΚΚΚΚ The trial court held that the present funding scheme is both unconstitutional and in violation of Title VI's implementing regulations.Κ The court went on to direct that the defendants "put in place reforms of school financing and governance designed to redress the constitutional and regulatory violations set forth in this opinion", and retained jurisdiction to monitor the defendants' progress in this regard.

ΚΚΚΚΚΚΚΚΚΚΚ Despite directing that changes be made to the current system, the trial court did not specify the manner in which said system of funding should be changed.Κ "Rather, it is the legislature that must, in the first instance, take steps to reform the current system" (Decision, at p. 78).Κ However, the trial court provided the following description of those resources which must be provided by any acceptable educational system:

ΚΚΚΚΚΚΚΚΚΚΚ (1)ΚΚΚΚΚΚΚ Sufficient numbers of qualified teachers, principals and other personnel.


ΚΚΚΚΚΚΚΚΚΚΚ (2)ΚΚΚΚΚΚΚ Appropriate class sizes.


ΚΚΚΚΚΚΚΚΚΚΚ (3)ΚΚΚΚΚΚΚ Adequate and accessible school buildings with sufficient space to ensure appropriate class size and implementation of a sound curriculum.


ΚΚΚΚΚΚΚΚΚΚΚ (4)ΚΚΚΚΚΚΚ Sufficient and up to date books, supplies, libraries, educational technology and laboratories.


ΚΚΚΚΚΚΚΚΚΚΚ (5)ΚΚΚΚΚΚΚ Suitable curricula, including an expanded platform of programs to help at risk students by giving then "more time on task".


ΚΚΚΚΚΚΚΚΚΚΚ (6)ΚΚΚΚΚΚΚ Adequate resources for students with extraordinary needs.


(7)               A safe orderly environment.


The court went on to mandate that any new system of educational funding address the inherent shortcomings which flaw our present system, by, inter alia:


ΚΚΚΚΚΚΚΚΚΚΚ (1)ΚΚΚΚΚΚΚ Ensuring that every school district has the resources necessary for providing the opportunity for a sound basic education.


ΚΚΚΚΚΚΚΚΚΚΚ (2)ΚΚΚΚΚΚΚ Taking into account variations in local costs.


ΚΚΚΚΚΚΚΚΚΚΚ (3)ΚΚΚΚΚΚΚ Providing sustained and stable funding in order to promote long-term planning by schools and school districts.


ΚΚΚΚΚΚΚΚΚΚΚ (4)ΚΚΚΚΚΚΚ Providing as much transparency as possible so that the public may understand how the State distributes school aid.


ΚΚΚΚΚΚΚΚΚΚΚ (5)ΚΚΚΚΚΚΚ Ensuring a system of accountability to measure whether the reforms implemented by the legislature actually provide the opportunity for a sound basic education and remedy the disparate impact of the current finance system.







ΚΚΚΚΚΚΚΚΚΚΚ The decision of Justice Leland DeGrasse, Supreme Court, New York County entered on January 31, 2001 in Campaign for Fiscal Equity, Inc. v. State of New York, (Sup.Ct. N.Y. Co. 2001) (Decision) (187 Misc. 2d 1) held that New York State has consistently violated Article 11, €1 of the State Constitution for many years by failing to provide New York City public school students the opportunity for a sound basic education (Decision, at p.185).Κ Judge DeGrasse also held that any remedy "will necessarily involve the entire State" (Decision, at p.186).Κ The Court further held that a sound basic education consists of "the foundational skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment" (Decision, at p.187).Κ In so finding, the trial court considered the voluminous testimony from numerous witnesses and experts offered during the seven month trial.Κ The Court carefully weighed the evidence produced against the template of what constitutes a sound basic education articulated by the Court of Appeals in the Levittown, supra, and CFE, supra decisions.

ΚΚΚΚΚΚΚΚΚΚΚ The Levittown decision provided that the Education Article guarantees "a state-wide system assuring minimal acceptable facilities and services in contrast to the unsystematized delivery of instruction then in existence within the State" (57 NY2d at 47).Κ Levittown also stated that the plaintiffs therein had failed to show "gross englaring inadequacy" in educational funding necessary to show a violation of the Education Article (Id. at 48-49).Κ Finally, the Levittown decision held that New York students must receive a "sound basic education" (Id. at 48).

ΚΚΚΚΚΚΚΚΚΚΚ The Court in CFE confirmed its holdings in Levittown and set forth the following description of "sound basic education":

Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.Κ If the physical facilities and pedagogical services and resources made available under the present system are adequate to provide children with the opportunity to obtain these essential skills, the State will have satisfied its institutional obligation (86 NY2d at 316).


ΚΚΚΚΚΚΚΚΚΚΚ The Court went on to specify the essentials for a "sound basic education" to include (1) minimally adequate physical facilities in classrooms, (2) minimally adequate instrumentalities of learning, (3) minimally adequate teaching of reasonably adequate up to date basic curricula by sufficient personnel adequately trained to teach those subject areas (Id., at 317).Κ The Court referred to these essentials as the "template...of what the trier of fact must consider and determining whether defendants have met their constitutional obligation" (Id., at 317-318).Κ The decision did not, however, define what constitutes "minimally adequate" facilities, instrumentalities of learning and teaching.Κ It stated that many of the Regents and Commissioners statewide standards exceed notions of minimally adequate or sound basic education and that some are aspirational.Κ It nevertheless, contemplated the use of those standards by the trial court with the following caution, "...prudence should govern utilization of [these] standards as benchmarks of educational adequacy (Id. at 317)."

ΚΚΚΚΚΚΚΚΚΚΚ The Court of Appeals in CFE also stated that the plaintiffs were required to demonstrate a causal connection between the State system of school funding and any proven failure of New York City public schools to provide a sound basic education (Id., at 318).

ΚΚΚΚΚΚΚΚΚΚΚ Justice DeGrasse's decision carefully and painstakingly reviewed the evidence provided at trial, evaluated the credibility of witnesses and documentary evidence and compared this evidence with the template provided by the Court of Appeals in Levittown and CFE.Κ

ΚΚΚΚΚΚΚΚΚΚΚ In addressing the Education Article analysis, the trial court first made clear that the Court of Appeals' CFE decision did not provide a "final definition of that which constitutes a "sound basic education" (Decision, at p. 8).Κ As pointed out by the Court of Appeals in CFE, a sound basic education must result in a productive citizenry, capable of voting and serving on a jury.Κ In addition, according to the trial court, a sound basic education must provide students with the ability to become productive members of the economy - i.e., to become employed (Decision, at p. 9).

A.Κ Analysis of "Inputs" and "Outputs"

ΚΚΚΚΚΚΚΚΚΚΚ The trial court went on to implement the Court of Appeals' direction in CFE that a "sound basic education" can be measured by both a result-oriented analysis and one that focuses upon the expenditure of resources on education.Κ The trial court thus discussed both the "inputs" (i.e. resources expended on education) and "outputs" (i.e. the results of the education system) of New York City's public school system.


ΚΚΚΚΚΚΚΚΚΚΚ In weighing the "inputs" applicable to New York City's school system, the trial court analyzed proof regarding each of the following:Κ (1) teacher quality (measured by teacher certification levels, experience, educational background, professional development and the rating system implemented by the Board of Education); (2) competition for qualified teachers; (3) curricula; (4) school facilities (through an analysis of the physical condition of classrooms and educational buildings); (5) class size and overcrowding of classrooms; and (6) adequacy of textbooks, library books, school supplies and instructional technology.


ΚΚΚΚΚΚΚΚΚΚΚ In weighing the "outputs" of New York City's school system, the trial court considered evidence regarding the graduation/dropout rates of publicly educated children in the City, as well as data concerning these students' results on various standardized tests promulgated by both New York State and New York City.Κ The trial court's "output" analysis was given in the context of whether the educational system succeeds in preparing students to become productive members of our society.


ΚΚΚΚΚΚΚΚΚΚΚ Upon reviewing the above-referenced "inputs" and "outputs" at New York City's public schools, the trial court concluded that public school students are not being provided with the raw material, such as adequate facilities, teachers and textbooks, to allow them to develop satisfactorily as students, a deficit which is shown by the low graduation rates and the students' poor test scores.Κ As a result, according to the trial court, these students are not being provide with the "minimally adequate education" contemplated by the State's Constitution.

B.Κ Causation

ΚΚΚΚΚΚΚΚΚΚΚ After concluding that the New York City public school system is constitutionally deficient, the trial court examined whether a causal like exists between the State's public school funding system and the level and degree of education opportunity.Κ In so doing, the trial court relied heavily upon financial data and expert testimony which analyzed that data in such a manner which tied the level and degree of State funding to the "inputs" and "outputs" referenced above.Κ Based upon such evidence, the trial court concluded that the requisite causal connection had been established in order to prove that the State's educational funding scheme is, in fact, unconstitutional.ΚΚΚ

ΚΚΚΚΚΚΚΚΚΚΚ Justice DeGrasse's decision produces precisely the careful, reasoned analysis and evaluation of testimony and other evidence regarding the quality of education provided to New York City children that the Court of Appeals contemplated in the CFE decision.Κ The Court received testimony and documentary evidence on, among other things, the lack of sufficient numbers of certified teachers (Decision, at p.39), the Regentsβ mandate to use only by certified teachers by the year 2003 (Decision, at p.42), the lack of sufficiently experienced teachers and evidence that the teachers with less than 2 years experience are not fully competent (Decision, at p.45), the difficulty experienced by New York City in competing for qualified teachers due to significantly higher salaries in surrounding non-city districts (Decision, at pp. 52-53), the underfunding of arts and physical education programs which are necessary to a sound basic education (Decision, at p.61), the extreme age of many school buildings in New York City (Decision, at p.72), the overcrowding of classrooms and the negative effect that overcrowding has on student performance (Decision, at p.78), the graduation and drop out rates where substantial numbers of children drop out before the 11th grade and of those that remain, many do not graduate (Decision, at p.97), and the graduation figures which are based upon most children receiving a local diploma by passing the Regents Competency Test (RCT) which demonstrates reading comprehension at the eighth to ninth grade level and math competency at a 6th grade level (Decision, at pp.98-99).

ΚΚΚΚΚΚΚΚΚΚΚ The Court also found that passage of the RCT's is not evidence that a child has received a sound basic education since the Regents have decided to phase out the local diploma as of 2004.Κ More particularly, the Court found that the RCT does not provide evidence that a student has obtained the basic literacy, calculating and verbal skills required of high school graduates.

ΚΚΚΚΚΚΚΚΚΚΚ The Court also concluded that 30% of children entering the ninth grade in New York City of public schools do not receive a high school diploma of any kind, 10% receive a general equivalency diploma (GED), and 48% receive a local diploma. Therefore, the trial court determined that 88% of children in New York City Schools have not received a sound basic education (Decision, at p.101).Κ

ΚΚΚΚΚΚΚΚΚΚΚ The trial court then fulfilled the Court of Appeals requirement of finding the causal link between the State's public school funding system and the educational opportunity afforded New York City public school children.Κ Justice DeGrasse held that increased funding can provide better teachers, better school buildings, better instrumentalities of learning and that such improvements or the lack thereof directly impact the performance of city public school children.Κ He rejected the defendantsβ argument that additional resources do not have an effect on student outcomes and found that, among other things, effective teachers and administrators, small class sizes and improved school facilities can substantially improve student performance. (Decision, at pp. 122-123).

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ It is beyond cavil that Justice DeGrasse has followed the Court of Appeals decision in Levittown and CFE, has given careful consideration of voluminous testimony and evidence, and his findings of fact, which are abundantly supported by the overwhelming weight of credible evidence adduced at trial, as well as his conclusions of law, should be affirmed.





ΚΚΚΚΚΚΚΚΚΚΚ The State has asserted that "socioeconomic conditions intrinsic to the education system are not relevant, or at least not centrally relevant, to assessing whether schools are meeting constitutional standards" (Attorney General's Brief at p. 45).Κ This is a particularly harsh position to take, and would consign many of the neediest children in our educational system to permanent status as second class citizens, unable to take full advantage of the educational system, and subsequently, full advantage of career and life opportunities available to others in their communities.Κ These children would be consigned to this second class status solely on the happenstance of where and to which parents they were born.Κ The State most certainly does not take the same position when other kinds of disadvantages or educational deficits are evident, such as physical or mental disabilities.Κ Socioeconomic disadvantages have been shown indisputably to have a negative impact on a child's performance in school.Κ The State would not assert, we hope, that it had no Constitutional duty to provide additional educational support for non English speaking children, children with learning disabilities or children classified as emotionally disturbed.Κ Socioeconomic deficits have been shown to have as direct an impact on a child's performance in school as these other disadvantages and deficits.

ΚΚΚΚΚΚΚΚΚΚΚ The State has stated that socioeconomic disadvantages are not relevant or not centrally relevant to the issue of meeting constitutional standards.Κ The ambiguity of the State's position is perplexing.Κ If the State's position is that such disadvantages are relevant but not centrally so, to what extent are they relevant and how does that relevance work to define a sound basic education?Κ The State's brief also criticized Judge DeGrasse's Decision for "erroneously assum[ing] that it was the State's responsibility to fully compensate for all socioeconomic disadvantages of the city student population rather than simply provide the opportunity for all students to learn basic skills" (Attorney General Brief at p. 36).Κ Once again, the State is ambiguous about what its position is.Κ If the error is the assumption that full compensation for such disadvantages is required, is the State conceding that partial compensation is required by the Constitution?Κ If so, for which disadvantages and to what extent is the partial compensation to be provided in order to offer a sound basic education? [5]

ΚΚΚΚΚΚΚΚΚΚΚ If, however, the State's position is that the constitutionally mandated minimum education does not require any compensation for such disadvantages and that the State need only provide the opportunity for all students without special needs to learn basic skills, then it is clear that the State believes that it has no constitutional duty to provide compensatory educational courses and services, such as English as a second language, courses for the gifted and talented, remedial reading, academic intervention services (AIS), early childhood education initiatives, just to name a few, which have become the staples of basic programming in schools throughout the State.ΚΚΚ While the State would seem to allow that the Court may recognize progress in education standards since approved of the education article in 1894, it argues that the Court may not interpret constitutional provisions to bind the State to action "not clearly intended...."Κ (Attorney General's brief at 38, 39).Κ It makes this argument to support its contention that the Court has greatly exceeded the obvious meaning of Article XI € 1.Κ Where, we ask, is the clear intention in Article XI €1 that all children need not receive a sound basic education, provided by qualified teachers with current textbooks, up-to-date curricula and other instrumentalities of learning appropriate to the needs of chilldren?Κ The State cites Hoffman v. Board of Education of the City of New York, 49 NY2d 121, 125-126 (1979) ("...the Courts of this State may not substitute their judgment...for the professional judgment of educators and government officials...") for the proposition that the Trial Court has "over reached" in defining a sound basic education.Κ To the contrary, however, it is precisely those educators and government officials that the Trial Court turned to for guidance and for the basis on which to make its determinations here.Κ The evolving standards for what constitutes the essential of a basic education must be defined in the context of the judgment of those educators and officials.Κ The Legislature itself has recognized this by leaving much responsibility and latitude for setting education policy to the Regents and the Commissioner.Κ The Court of Appeals in CFE has also recognized this by purposely leaving the precise definition of a sound basic education open and by only providing a template as guidance to the Trial Court.Κ It is therefore incorrect and even somewhat disingenuous of the State to argue that the Trial Court has exceeded the clear intention expressed in Article XI €1.

ΚΚΚΚΚΚΚΚΚΚΚ The ambiguity of the State's position with respect to socioeconomic disadvantages and its constitutional responsibility under Article XI €1 appears in several other sections of the State's brief, at pages 76,77 and 78.ΚΚ With respect to the ability to offer effective programs which compensate for these disadvantages, the State has asserted that socioeconomic disadvantages "are largely [6] outside the education system's responsibility or capacity to remedy." (Attorney Generalβs Brief at p. 77).Κ With respect to the duty to provide compensatory education, the State continues this line of argument by quoting from Levittown (Id., at p. 41) that, "inequality existing in cities are products of demographic, economic, and political factors intrinsic to cities themselves and cannot be attributed to legislative action or inaction."Κ This quotation is used to imply that the Court of Appeals has held that there is no duty to provide additional education to offset such disadvantages. The State is here misconstruing the meaning of the Court of Appeals in Levittown.Κ The Court there was discussing "municipal over burden" as an unequalizing force in state aid distribution in the context of whether the rational basis test showed a denial of equal protection under the Federal Constitution.Κ That quotation has no relevance here in a discussion of the Education Article of the State Constitution.Κ

ΚΚΚΚΚΚΚΚΚΚΚ Judge DeGrasse found from evidence introduced at trial that socioeconomic disadvantages can be formidable obstacles to academic success.Κ He also found that these disadvantages "can be overcome by public schools with sufficient resources well deployed" (Decision at p. 36).Κ He wrote that "it is the clear policy of the State,Κ . . .Κ , that all children can attain substantive knowledge and master the skills expected of high school graduates ... [and] are capable of seizing the opportunity for a sound basic education if they are given sufficient resources" (Decision at p. 36).Κ He concluded on this point that "the Court agrees that the State must only provide an opportunity for a sound basic education but this opportunity must be placed within reach of all students.Κ The Court rejects the argument that the State is excused from its constitutional obligations when public schools students present with socioeconomic deficits" (Decision at p. 102).Κ

ΚΚΚΚΚΚΚΚΚΚΚ A number of cases outside New York State have attempted to grapple with the issue discussed here.Κ In Serrano v. Priest (18 Cal. 3d 728) the Court did not directly discuss the constitutionality of accommodating individual students possessing increased educational needs.Κ The case dealt primarily with achieving the equality of expenditures between school districts.Κ The case, however, does stand for the proposition that equality between districts must take into consideration socioeconomic factors which may handicap one district versus another.Κ In this regard the defendants in Serrano argued that "the weak relationship between expenditures per pupil and taxable property per pupil... is explained in part by [socioeconomic] factors effecting the cost of offering substantially equivalent school programs in different school districts."Κ In response the California Supreme Court stated as follows:Κ "a fiscally neutral system, if tailored and responsive in a responsible way... would make the individual districts ability to meet its own particular problems connected with providing education opportunity depend on factors other than the wealth of the district" (Id., at p. 760).Κ In Rose v.Κ The Counsel for Better Education (790 SW2nd 189), the Kentucky Supreme Court also only addressed issues of equality between school districts.Κ However, the Court there did specifically state that "[e]ach child, every child, in this commonwealth must be provided with an equal opportunity to have an adequate education.Κ Equality is the key word here." (Id., at p. 212).

ΚΚΚΚΚΚΚΚΚΚΚ In Abbott v. Burke, 100 NJ 292, the New Jersey Supreme Court explicitly recognized that "in some cases for disadvantaged students to receive a thorough and efficient education, the students will require above-average access to education resources" (Id., at p. 373).Κ According to the New Jersey Supreme Court, the "constitutional issue" at hand was whether "after comparing the education received by children in property poor districts to that offered in property rich districts, it appears that the disadvantaged children will not be able to compete and contribute to, the society entered [into] by the relatively advantaged children" (Id.).Κ (see also Lau v. Nichols (414 US 563), teaching Chinese speaking students in English only denied them an education; and Jenness v. Fortson, (403 US 431), holding that the severest discrimination can come from treating alike what is really dissimilar").

ΚΚΚΚΚΚΚΚΚΚΚ New York State has a highly diverse student population. Diversity has been strength of our State and the Nation.Κ Openness and opportunity for all has been the hallmark of New York, and our education system must welcome and support that diversity.Κ What may be adequate educational services for some are not necessarily adequate for all.Κ The much maligned state aid formula that we currently suffer under has been made complex by the very attempt to meet and accommodate that diversity and provide those varying responses to the numerous education challenges facing our schools.Κ The formula should not be criticized for that complexity, but for not reaching its intended goal of supporting and maintaining a system which provides an opportunity for an adequate education for all students of our State.Κ The Constitutional mandate of Art. XI €1 must be construed to require that all children be provided a meaningful opportunity for a sound basic education, whatever their individual disadvantages may be.









ΚΚΚΚΚΚΚΚΚΚΚ The State educational system is unconstitutional because it fails to provide children in 853 Schools the opportunity for a sound basic education.Κ Using the template provided by the Court of Appeals in Levittown and CFE to measure the quality of the educational services provided by 853 Schools, it becomes clear that children attending these schools are consistently denied the opportunity for a sound basic education.Κ Children at 853 Schools suffer from profound disabilities or have been the victims of severe parental neglect or child abuse.Κ As a result, these children come to 853 Schools from public school districts or through the family courts or county social services departments with multiple educational, emotional, physical, cognitive and socioeconomic deficits.

ΚΚΚΚΚΚΚΚΚΚΚ As noted under "interest of amicus curiae" above, these children are entitled to a sound basic education under the New York State Constitution and an appropriate education in the least restrictive environment under Chapter 853 of Laws of 1976 and the Federal Individuals with Disabilities Education Act.Κ Funding for these schools is the responsibility of the sending school district or county social services district and the level of that funding is determined by a tuition rate set annually according to a methodology developed by the Commissioner of Education and with the approval of the Director of the Division of Budget.Κ For more than a decade, the tuition rate has been kept purposely stagnant and below the rate which would enable many 853 Schools to meet the minimum cost of doing business.Κ As a result, their teachers are woefully underpaid, inexperienced, without proper credentials and certifications, without sufficient retirement benefits (as compared to the public sector), and many are paid however on a twelve month basis versus their teachers who are paid on a ten month basis in the public sector.Κ Due to the inability to attract and retain qualified staff, many 853 Schools are forced to use teaching assistants in the place of certified teachers.Κ The certification requirement for teacher assistants is a high school diploma plus six credit hours of college credit (8 NYCRR Pt. 80).Κ Also, as a result of this chronic underfunding of 853 Schools, the numbers of referrals to the schools greatly exceed the number of placements and large numbers of children are thereby denied appropriate placement and educational services entirely.Κ Furthermore, many of the 853 Schools operate in obsolete, poorly repaired facilities without space sufficient to meet minimum State standards and without adequate equipment and educational supplies.

ΚΚΚΚΚΚΚΚΚΚΚ On the basis of these inputs, i.e., educational resources, alone, the level of funding and the quality of educational services provided in 853 Schools is even worse than is provided to public school students in New York City.Κ The funding system established by the State Legislature for the education of these children with severe disabilities and special needs is violative of the State Constitution for failure to provide these children with a sound basic education.Κ


ΚΚΚΚΚΚΚΚΚΚΚ It is also clear, since educational expenditures at 853 Schools are more highly regulated and restricted by the State through the tuition rate methodology than in the public sector [7] , and the 853 School revenues come almost exclusively via that tuition rate, the causal connection between the State's system of school funding for 853 Schools and the low quality of that education provided at 853 Schools has been demonstrated.Κ It is clear that the State's funding system is the direct cause of the failure to provide a sound basic education for these children.







ΚΚΚΚΚΚΚΚΚΚΚ The State funding system violates the equal protection clauses of the Federal and State Constitutions for lack of a rational basis for the gross disparity in funding for children in 853 Schools with disabilities and special needs when compared with children with similar disabilities and needs in public school districts.

ΚΚΚΚΚΚΚΚΚΚΚ The Court of Appeals in Levittown considered a challenge to the educational system based upon inequality between the quality of educational opportunity available in different school districts.Κ The plaintiffs therein argued that the present system of school funding in the State resulted in certain school districts being better funded than others and thereby able to offer better educational opportunities.Κ According to the Levittown plaintiffs, this disparity violated the equal protection clauses of the Federal and State Constitutions.

ΚΚΚΚΚΚΚΚΚΚΚ In its Decision the Levittown Court recognized the following:

Public education is unquestionably high on the list of priority of governmental concerns and responsibilities, involving the expenditure of the enormous sums of State and Local Revenue, enlisting the most active attention of our citizenry and of our Legislature and manifested by express articulation in our Constitution (Id., atΚ 43).Κ


Despite recognition of the above, the Court was constrained to conclude that education was not a "fundamental right" worthy of a "strict scrutiny" analysis under equal protection clauses (Id., at 44).Κ Accordingly, the Court considered only whether there existed a "rational basis" to justify the State's present system of school funding, finding that a rational basis did in fact exist to support the system of funding.ΚΚΚ (Id.) The plaintiffsβ equal protection claims were dismissed (Id., at 45-47).

ΚΚΚΚΚΚΚΚΚΚΚ The Court in Levittown went on to state that "careful scrutiny," not a rational basis, was the test under the State equal protection clause of the Constitution, Article 1 €11, when the alleged discrimination related to a class of persons and was intentional (Id., at 44), (citing People v. Whidden, 51 NY2d 457, relating to gender discrimination;Κ Matter of Fay, 44 NY 2d 147, App.Dsmd.Subnom; Buck. v. Hunter, 439 US 1059, relating to discrimination based on illegitimacy, and Matter of Levy, 38 NY2d 653).Κ The Court therein also made the distinction that the plaintiffs in Levittown were alleging discrimination, not between persons, but between public school districts.Κ Therefore, no equal protection argument could be raised.

ΚΚΚΚΚΚΚΚΚΚΚ While the argument may be made that the State has intentionally discriminated against children attending 853 Schools by purposely depressing revenues available for educational programs and services through the tuition rate methodology, thereby invoking the "careful scrutiny" standard for determining whether violations of the State and Federal Constitutions equal protection clauses exist, an even stronger case for such violations can be made when it is recognized that there is simply no rational basis, related to the education of these children, for discrimination between children with disabilities and special needs at 853 Schools and children with similar disabilities and needs at public schools.

ΚΚΚΚΚΚΚΚΚΚΚ In the Levittown case, the Court of Appeals found that a rational basis for gross inequities and funding between school districts throughout the State was present due to the legislature's goal of maintaining partial local control of the educational system.Κ Therefore, disparities in funding and programs authorized by the various boards of educations reflecting the various local financial resources available was justified by an important goal of local control.Κ No such rational basis for the disparities in funding for children at 853 Schools and public school districts exists, however.Κ

ΚΚΚΚΚΚΚΚΚΚΚ Both the children at 853 Schools and at public schools are "public school children" (See, 20 USC €1412).Κ As universally recognized in State government, 853 Schools perform public service and function by providing essential educational services to disabled and needy children, and thereby fulfill a function which is mandated on the State by the State Constitution, and by Federal and State Laws regulating programs for these children.Κ (See, In Matter of Downey, 72 Misc2d 772 (NY County Fam. Ct. 1973) (Out of state tuition costs for disabled children must be paid in full by the State and the State could not require a family contribution for excess costs under the Family Court Act €234, when full support for education is required under the New York State Constitution Equal Protection Clause.) There is no conceivable educational goal or basis which could justify providing fewer resources, fewer qualified teachers and poorer facilities to educate these children merely because they are so severely disabled and in need that they can no longer be served in regular public school settings.

ΚΚΚΚΚΚΚΚΚΚΚ It is also universally recognized that 853 Schools are chronically underfunded under the tuition rate methodology and the State is, in effect, getting a partial "free ride", since the cost of placing these children at 853 Schools is greatly lower than the cost of placement in similar programs in the public schools.Κ The State over many years has developed policies which prevent this underfunding from being remedied.Κ Considering the children served, these policies are unconscionable.

ΚΚΚΚΚΚΚΚΚΚΚ In Matter of Levy, 38 NYd 653 1976, which involved a dispute over maintenance costs (not educational tuition costs) of disabled children, the Court held that maintenance costs, though paid for the blind or deaf, need not be paid under €234 of the Family Court Act by the State and that this distinction between the blind and deaf and other forms of disabilities met the rational basis test since the disabled were not a "suspect class", education was not a "fundamental right" under the State Constitution and the distinction between the blind and deaf and other forms of disabilities established a legitimately separate class since the blind and deaf required much greater educational services [8] .Κ

ΚΚΚΚΚΚΚΚΚΚΚ In Lau v. Nichols 414 US 563, Chinese speaking children in California schools sued under the Civil Rights Act of 1964 € 601 (42 USC 2000d) on the basis that they were not provided classes in English.Κ The Court stated that skills in English were at the very core of what is taught at our schools and that failure to provide these basic skills makes the education provided a mockery and that education means giving the child what the child needs.)Κ See, also Matter of Patricia A., 31 NY2d 83; San Antonio v. Rodriquez, 411 US 1; Dorsey v. Stuyvesant Town Corporation, 299 NY 512, Cert denied 399 US 981; Read v. Read, 404 US 71; and Johnson v. Robinson, 415 US 361.

ΚΚΚΚΚΚΚΚΚΚΚ Under the State and Federal Constitutions, the State may not discriminate among persons of the same class without a rational basis therefor.Κ However, a, gross disparity exists between funding for 853 School children and public school district children.Κ This disparity is unconstitutional, for it does not survive the rational basis test under the equal protection clauses of the State and Federal Constitutions.






ΚΚΚΚΚΚΚΚΚΚΚ The constitutional mandate of Article 11, €1 is not satisfied where the Legislature delegates its responsibility to a political subdivision which fails to fulfill that mandate.Κ The State's brief is replete with references to the failure of New York City Board of Education or the City itself to fund education adequately (See, e.g., Attorney General Brief at p.60).Κ This so called "pointing fingers" argument has been expressly rejected by the trial court in Levittown v. Nyquist, (94 Misc2d 466)Κ The trial court there adopted the language of the original plaintiffs which stated "whether the Legislature chooses to run a centrally managed system out of Albany, or to delegate responsibility to artificially created school districts well may be a permissible option.Κ What cannot be delegated by the Legislature, however, is responsibility for the end product."Κ Id at 527-528.Κ The Court also buttressed its argument by citing similar language contained in Robinson v. Cahill, 62 NJ 473, 409.

ΚΚΚΚΚΚΚΚΚΚΚ The State has argued in effect that, if the State provides what purports to be adequate levels of state education aid to the New York City, its obligations under the Education Article of the State Constitution are satisfied.Κ This argument is repeated so often in the State's brief and is woven through so many different arguments made by the State, directly and indirectly, that it is imperative that the Court address this issue explicitly.Κ The State's brief intertwines this argument with its emphasis of the issue of local control of education.Κ The issue of local control, however, is relevant only to the issue of equal protection and whether a rational basis for state funding system exists which otherwise produces inequities in funding.Κ It is not relevant to a discussion of the State's responsibilities under the Education Article.

ΚΚΚΚΚΚΚΚΚΚΚ The State's brief has stated that it is not the exclusive guarantor of a sound basic education and that making it so would eliminate the stewardship of local school districts, including the Board of Education of New York City.ΚΚΚΚ These statements are clearly in error.Κ If the Education Article of the State Constitution required only sufficient state funding of education as the State's brief would have it, the State would not be in violation of the Constitution if the City accepted state education aid but failed to spend any of it on education.Κ This is a potently absurd result.Κ The State fails to recognize that the Education Article requires the Legislature to provide for the maintenance of a "system" of commons schools.Κ The word "system" connotes obligations broader than merely providing funding, and connotes the responsibility to ensure that system provides all children the opportunity for a sound basic education.Κ When State asserts that it is not the exclusive guarantor of a sound basic education it is ignoring the clear intent of the Education Article and the Court of Appeals Decisions in Levittown and CFE.Κ Finally, giving the State the ultimate responsibility for providing all children with the opportunity for a sound basic education does not eliminate the stewardship function of local school boards.Κ It only requires that the State be ultimately responsible for whether the local schools are providing the minimum adequate education required by the Constitution.


ΚΚΚΚ For all the foregoing reasons, it is respectfully requested that the Decision and Order of the Supreme Court (DeGrasse, J.), dated January 31, 2001, be affirmed in all respects.

Dated:Κ October 17, 2001ΚΚΚΚΚΚΚ












Of Counsel:Κ

ΚΚΚΚΚ Robert E. Biggerstaff, Esq.

ΚΚΚΚΚ Glen P. Doherty, Esq.

ΚΚΚΚΚ Scott C. Paton, Esq.




     [1] 853 Schools do receive some charitable donations and qualify for some supplemental federal funding.Κ However, tuition accounts for in excess of 96% of operational funding in virtually all cases.

[2] County social services district payment also covers placements made by Family Court.Κ Family Court placements are governed by Education Law € 4406 which provides for 50% state reimbursement.

     [3] Κ Chief Judge Kaye recused herself from CFE v State, leaving a panel of six judges to consider the case.

     [4] Discussion of this issue will be omitted.

     [5] This ambiguity is fatally defective to the State's argument. By failing to be clear about what constitutes a sound basic education, the State has offered no standard by which it can contradict the determinations made by the Trial Court.

     [6] Here again the State is ambiguous, using the word "largely."Κ If the State is somewhat responsible for such disadvantages, but not largely so, how is the extent and nature of that responsibility to be measured?Κ We believe the State has a duty to be clear on this essential constitutional point and should not be allowed to waffle.Κ The State's brief is wholly unpersuasive as a result.

[7] For example, 853 Schools are not permitted to maintain an operating cash reserve as the public schools can which have statutory authority to maintain a 2% fund balance.

[8] The holding of Levy is of particular interest, because it stands for the proposition that a rational basis exists for providing greater state resources for children with greater disabilities and needs.Κ When compared to the public schools, the 853 School children have much greater educational needs since the children placed in these schools have not been able to function in regular school settings because of the severity of their disabilities and needs.Κ Certainly, then, there can be no rational basis for providing fewer resources, a lower quality of educational services and poorer school facilities for these children with the greatest needs.