Supreme Court of the State of New York

Appellate Division -- First Department

 

 


Campaign for Fiscal Equity, Inc. et al.,

 

Plaintiffs-Respondents,

 

-against -

 

 

State of New York, et al.,

 

Defendant-Appellant.

 

 

 

 

 


Brief Amicus Curiae submitted by United Federation of Teachers

 

 

 


Alan M. Klinger

Adam S. Grace

180 Maiden Lane

New York, New York 10038

(212) 806-5400

 

Carol L. Gerstl, Esq.

UNITED FEDERATION OF TEACHERS

260 Park Avenue South

New York, New York 10010

(212) 777-7500

 

Attorneys for the United Federation of Teachers

 

 


New York County Clerk‚s Index No. 93/111070

 

Printed on Recycled Paper


PRELIMINARY STATEMENT

            In 1988, the New York State Legislature declared that:

[T]he elementary and secondary schools of the city of New York are in deplorable physical condition.  Many of the schools are overcrowded, unsafe, unhealthy and unusable.  The physical deterioration of the schools is a serious impediment to learning and teaching.  If the quality of education in New York City is to be improved, the schools must be modernized, expanded and restored to state of good repair . . . .

(New York City School Construction Authority Act, L. 1988 c. 738 § 1 (approved Dec. 19, 1988).

            Six years later, when the current crop of high school students was in elementary school, the physical condition of New York City‚s public school buildings had deteriorated so badly, and there was so little hope of the situation being remedied, that the United Federation of Teachers (the „UFTš), joined by parents and students, was forced to sue the Board of Education in order to protect the students.  Imagine being a student in a school system in which the caretakers have to be sued because unsafe buildings are simply not being fixed.  Imagine being a parent when the Court issued its decision, in 1998ųten years after the Legislature‚s pronouncementųaffirming that the schools were indeed in dangerous disrepair, and that remedial action needed to be taken.

            Many life-threatening conditions have been abated as a result of the parents‚ and UFT‚s lawsuit.  That is a positive development, though not one to be overly proud of since one would expect at the barest of minimums that school children should be provided with safe classrooms.  Moreover, not only do significant school repairs remain to be done, but even where hazards have been stabilized (though not necessarily remedied), the dilapidated school buildings do not provide the environment necessary for imparting a sound, basic education.  Perhaps that should not be terribly surprising, given the amount of money and work hours needed to make the remaining buildings safe and to complete the backlog of repairs that the City still faces throughout the system. (Spence 2310:4-20; Zedalis 4360:4-14, 4361:13-4363:24, 4367:6-4369:5, 4392:17-4393:2; O‚Toole 19805:8-18; Px1484 at 3-4, 15; Px1494 at STBE 0204740-STBE 0204742).

Whatever the reason for the inadequate learning environment that pervades the City‚s school buildings, here are some facts that would give any educator pause:

Š             The foundation for a sound basic education rests on providing sufficient air, light, and heat in which learning can occur.  And yet, a 1997 report showed that 79 percent of New York City‚s public schools have problems with heating, ventilation, and air conditioning.  (Levy 7106:9-13; Px 2029 at SEDA 029054).  Indeed, only 7,344 out of 35,000 classrooms in the City have any air conditioning at all.  (our emphasis) (Dx 11050 at BOE 788856; Px 3195; Px 3196).  Imagine the stifling atmosphere in April, May, June, and early September in the remaining 27,656 classrooms.  Could anyone be expected to concentrate and learn in the sweltering heat of an uncooled room packed with children?

Š     63% of all elementary schools and 67% of all high schools are filled beyond their stated capacity.  (O‚Toole 19784:18-19785:21; Px25 at 1-2; Px3082B-Sweeting Stmt. ¶106).  Not only does that mean large classes, and less time for teaching (as children have to make their way through crowded halls and then teachers need to settle their large classes down)ųsee Weingarten 2710:17-2714:12ųbut it also means that schools have to scramble to put classes wherever it is physically possible to do so.  Thus, all manner of non-academic spaces are converted into classrooms, including auditoria, gymnasia, guidance offices, shop rooms, cafeterias and even bathrooms.  (DeStefano 5329:19-5330:2; Rosa 11062:21-25, 11064:8-14, 11066:22-11067:8; Coppin 620:3-17; Zedalis 4732:20-4733:5; Px2349; Px2352; Px2855A-Lee Stmt. ¶¶70, 72).  This is not a short-term, isolated phenomenon.  It is a pervasive problem and has been for years.  Can anyone seriously suggest that standards required by the Education Article of the State Constitution (N.Y. Const., art. XI, § 1; the „Education Articleš) are being met by a school system that cannot routinely provide its children with adequate classroom facilities?

Š     Approximately 16,600 high school children do not even have so much as a science laboratory at their disposal. (Zedalis 4750:3-4751:20, 4752:13-4754:2; Px1533).  Imagine a basic biology or chemistry class without a lab for experiments.  Can anyone seriously suggest that those students are receiving the „minimally adequateš instruction in science that the Education Article requires?  (Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 317 (1995) („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.š)).

Unfortunately, inadequate physical space for learning is only part of the story.  Not only did the UFT have to sue for building repairs, but it actually had to file a grievance on behalf of an entire school district that lacked such basic school supplies as chalk, paper, markers, staples, glue, and other similar elementary school necessities.  (Weingarten 2792:5-2795:13).  Sadly, the school system suffers from a chronic lack of such supplies.  (Millman 3747:23-3748:2; Darling-Hammond 6450:12-24; Casey 9960:8-10; Santandreu 13570:11-14; Lief 14976:13-19).  That being the case, it should not come as any surprise that the City‚s supply of textbooks is both inadequate and outdated.  (Cashin 247:21-248:2; 366:4-11; 504:21-24; Coppin 779:2-4, 7-9; Hayden 1307:17-21; Chin 4903:16-24; Px3032 at 6; Dx10390 at 7; Dx13272 at PCFE 003491, PCFE 003495).

And so, the City‚s school children are sent to inadequate facilities in which they are given inadequate instructional materials. 

Who is teaching them?  Or, to put the question another way, how many experienced, qualified teachers can the Board of Education find to provide years of continuous service at peak performance in overcrowded, dilapidated classrooms with outdated and insufficient teaching materials?  The collective lack of experience is a result of an extremely high turnover and an inability to recruit and retain qualified teachers for every studentųproblems caused by a number of factors, not the least of which, as found by the trial court, are inadequate compensation and the strain of the poor physical environment in which New York City teachers are asked to work magic.

The decision below fully details the inadequacies in the school system, and there is no question that the Court‚s factual findings are supported by the record.  When the facts are viewed as a whole, one sees that the Court was correct in concluding that the „sound basic educationš requirement has not been met.  Defendants‚ brief isolates each fact in an attempt to make it look as if there is an insufficient underpinning for the Court‚s decision.  But the Court did not rest its decision on any one factor.  The problem with the schools is not just overcrowding.  Or just a lack of appropriate educational facilities.  Or a lack of teaching materials.  Or the lack of experienced teachers.  Or any of the other shortcomings supported by the record.   The problem is all of those facts combined.

The UFT trusts that the record will speak for itself, and that its voice is not needed any further in that regard.  We hope, however, to assist the Court with some observations about the importance of teacher quality in educating our school children, and about the nature of the inquiry required in determining whether the Education Article has been violated.


ARGUMENT

I.                 A DETERMINATION OF WHETHER „MINIMALLY
ADEQUATEš INSTRUCTION IS BEING PROVIDED
NECESSARILY REQUIRES CONSIDERATION OF
WHAT OTHER SCHOOL DISTRICTS ARE TEACHING 

In fleshing out the definition of „sound basic educationš in its prior opinion in this case, the Court of Appeals stated that school children are entitled to „minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies . . . .š  (CFE I, 86 N.Y.2d at 317).  The Court‚s use of the phrase „up-to-dateš is not surprising, since one would not have expected the Court to rule that the Constitution permits the provision of an outdated education.  But the obviousness of the Court‚s ruling should not obscure its significanceųthe fact that an „up-to-dateš education is required is crucial to the proper application of the „sound basic educationš standard.

By ruling that a „sound basic educationš requires teaching of „up-to-date basic curricula,š the Court of Appeals recognized that the standard for a „sound basic educationš is not an absolute standard, frozen in time.  What constituted a „sound basic educationš in 1952 would not necessarily constitute a „sound basic educationš in 2002.  That being the case, how do we know what constitutes a „sound basic educationš at any moment in time?  One must look at the curriculum and supports available to successfully teach the curriculum in other school districts.  An illustration from the evidence at trial will suffice to demonstrate this point:

Take science instruction.  The evidence at trial showed that the City‚s public schools lacked the most basic supplies and equipment necessary for a basic science curriculum.  A 1999 report by the City Comptroller showed that 100% of 19 schools surveyed had substantial equipment deficiencies.  (Px1242 at iii).  There was testimony that the only laboratory equipment in one district was a „skeleton standing there,š and that public school students had never seen a Bunsen burner or a beaker.  (Cashin 309:16-309:19; Evans-Tranumm 1390:3-12).  Now, why is this legally relevant?  In 1894, when the Education Article was enacted (the year of enactment is emphasized in the Brief of the Defendants-Appellants), it probably would not have been legally relevant.  But in the year 2001, it is relevant because, as everyone with a high school education outside the City knows, schools throughout the rest of the State provide such basic laboratory equipment to their students for science instruction.  The fact that a majority of schools provides its students with such equipment is what informs the determination that an „up-to-dateš education includes such scientific instruction.

Thus, when the Defendants-Appellants („Defendantsš) argue that the decision below is incorrect because the „sound basic educationš requirement is a standard of „adequacy, not parityš (Defendants‚ Br. at 65), they are stating too much.  True, „parityš is not the touchstone of the „sound basic educationš requirementųa particular school district is free to go beyond what an „up-to-dateš education requires; and as long as students are receiving an „up-to-dateš education, there can be no complaint under the Constitution that other students elsewhere are receiving more.  However, when a large enough number of students are being provided with a particular level of education, then such education must be incorporated into the very definition of an „up-to-date basicš education.  And the evidence at trial more than established that the City‚s schools are not keeping up with the standards set by the rest of the schools in the State.

II.             PLAINTIFFS DO NOT HAVE TO DEMONSTRATE THAT
POOR FACILITIES CAUSED POOR STUDENT PERFORMANCE

The City‚s public school teachers can attest to the overwhelming evidence produced at trial concerning the decrepit facilities to which our students are continuously subjected:  Classrooms or whole floors get closed because of water leaks or lead hazards.  (Zedalis 4374:20-3475:5; Px1494 at STBE 0204743; Px2332A-Rosa Stmt. ¶¶128-29).  Students are forced to leave school because the building is too cold.  (Px2855A-Lee Stmt. ¶100).  Students are displaced into non-academic spaces in schools because of boiler malfunctions.  (Px2900-Young Stmt. ¶61).  Burst pipes require children to double up in other classrooms.  (Rosa 11027:6-13).  Teachers and children routinely exhausted by heat in classrooms lacking air conditioning.  (Cashin 299:19-300:4).  Attendance drops on the hottest days in buildings without air conditioning.  (Coppin 647:8-17). 

It would be hard to imagine that such conditions, existing throughout the school system, and persisting for years and years, would not take their toll on students‚ ability to learn.  No doubt, that is why the Court of Appeals has ruled that school children are entitled to minimally adequate physical facilities and classrooms.  If those facilities do not provide „enough light, space, heat and air to permit children to learn,š then an Education Article violation has been established.

Defendants in this case attempted to show empirically that student performance was not affected by the poor state of the school facilities.  The Court, correctly, rejected the Defendants‚ evidence (Campaign for Fiscal Equity v. State of New York, 187 Misc.2d 1, 47-49, 719 N.Y.S.2d 475, 507-08 (Sup. Ct. N.Y. Co. 2001)), and credited evidence from Plaintiffs showing that the deficiencies in the City‚s school buildings impede learning (Id. at 46-47, 719 N.Y.S.2d at 506-07).  Not only was the Court‚s weighing of the evidence correct, but the Court‚s inquiry was not even necessary.

The reason the Court weighed the evidence was because it concluded that Plaintiffs were obligated to show a causal link between inadequate school facilities and student outcomes.  The Court‚s analysis was as follows:  „The Court of Appeals‚ 1995 decision states that the adequacy of school facilities is to be measured by whether they őpermit children to learn.‚  (Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d at 317, 631 N.Y.S.2d 565)  Accordingly, this court must examine the effect of poor physical conditions on students‚ ability to learn.š  Id. at 46, 719 N.Y.S.2d at 506.  Respectfully, we submit that the Court adopted too constricted an interpretation of the phrase „permit children to learn.š

The Court of Appeals‚ litany of bare essentials that a school system must provide is a list of per se constitutional violations.  Without chairs, or desks, or current textbooks, there is not a sound basic education.  Without teaching of reasonably up-to-date basic curricula by sufficient trained personnel, there is not a sound basic education.  And without facilities providing sufficient light, space, heat and air, there is not a sound basic education.  The Court of Appeals has clearly decided that as a matter of law, a lack of any of those items has a deleterious effect on education.  Contrary to the conclusion reached in the decision below, a plaintiff need not prove a causal link between student performance and a lack of heat, or textbooks, or science instruction.  That link is assumed.

The question any court faces in applying the Court of Appeals‚ list of per se violations is not whether a violation has actually caused harm, but whether a violation has occurred.  It would be hard to imagine that a school lacking one chair on one day has committed a per se constitutional violation.  Similarly, a school system that suffers a day without air conditioning can be forgiven.  When the Court of Appeals said that students must be provided „facilities and classrooms which provide enough light, space, heat and air to permit children to learn,š the Court was simply emphasizing that the failure must rise to a sufficiently serious level that harm can be presumed and a violation will be found.  Certainly, if students sat in darkness for an entire year, a court would be required to find that there was not sufficient light „to permit children to learnš without any need to examine whether a sophisticated enough regression analysis could actually establish that the lack of light had a demonstrable effect on the students‚ performance. 

In the present case, there can be no doubt that the evidence showed that the deprivation of light, space, heat, and air was serious and sustained, and amounted to a per se violation of the Education Article.  The evidence amply supports a finding that school children were not provided with facilities of the minimum adequate quality required to provide an opportunity for learning to occur.  Plaintiffs did not have the burden of proving that the inadequate conditions actually caused a quantifiable loss of learning.

III.         PLAINTIFFS DO NOT HAVE TO
DEMONSTRATE THAT INCREASED FUNDING
WOULD IMPROVE ACADEMIC PERFORMANCE

The State suggests that Plaintiffs could not prove their case without showing „that a significant correlation exists between increasing education funding in New York City and improving academic performance.š  (Defendants‚ Br. at 102).  That is not correct.  Plaintiffs did not have the burden to prove such a correlation.

In CFE I, the Court of Appeals reiterated that the Education Article requires the State to offer all children „the opportunity of a sound basic education.š  CFE I, 86 N.Y.2d at 316.  As discussed above, the Court then detailed some essentials that any minimum education would require, such as adequate physical facilities, adequate instrumentalities of learning, and adequate teaching of reasonably up-to-date basic curricula by sufficient and adequately trained personnel.  Id. at 317.  The Court further noted that Plaintiffs would need to establish „a causal link between the present funding system and any proven failure to provide a sound basic education to New York City school children.š  Id. at 318.

It is one thing to say, as the Court of Appeals has, that Plaintiffs must prove that the school system‚s failure was the result of the State‚s funding system.  It is quite another thing to say that a plaintiff must prove that providing additional funds will improve student performance.  As discussed above, the Court of Appeals‚ list of education essentials constitutes a list of items that must be provided by a school systemųthat is, the Court has already concluded as a matter of law that a failure to provide such items causes harm to students (which is why failing to provide them is an Education Article violation).  The „causationš that a plaintiff must prove relates to who (or what) is responsible for the failure.  It does not relate to what effect additional funding would have on student performance.

A simple example suffices to illustrate this point.  If a school system fails to provide adequate up-to-date textbooks to its students, and it can be shown that the failure is attributable to (i.e., caused by) the State‚s funding system, then a violation of the Education Article has been proven.  Can it possibly be true, as Defendants would have it, that the plaintiff also has to prove that providing additional monies to purchase new textbooks would actually have an immediate, directly attributable impact on student performance? 

Of course not.  Defendants‚ misguided causation argument stems from a (perhaps intentional) conflation of educational inputs and educational outputs.  Educational inputs are the resources provided by the school system.  Education outputs are indicators of student performance (such as test results).  From a legal standpoint, the Educational Article is concerned with inputsųsufficient inputs must be provided so that all students have an opportunity to learn.  The constitutional test turns on inputs, and not outputs:  If there are some students who have the ability to overcome inadequate inputs, that does not absolve a school system from its constitutional failure to provide sufficient inputs.

Although educational outputs are not in themselves determinative of an Education Article claim, they are relevant in providing evidence to assist a court in determining whether sufficient educational inputs have been provided.  If a school system‚s performance shows weakness, that is potentially significant probative evidence that a deficiency in inputs (be they inadequate textbooks, or a lack of experienced teachers, or poor physical facilities) has risen to the level of a constitutional violation. 

Perhaps in any given case a defendant may attempt to challenge whether the outputs in question do in fact constitute relevant evidence of a failure by the school system.  But that is a far different matter from Defendants‚ argument here that a plaintiff cannot establish an Educational Article claim without proving that increasing funding would improve academic performance.  Nothing in the Court of Appeals decision in CFE I requires such proof.  Moreover, if Defendants‚ position were to be accepted, the result would be both illogical and a perversion of the public school system.

As an example, imagine one particular school that is not provided with either adequate science instruction or with adequate textbooks.  Could it be that providing improved instruction and textbooks would have no positive effect on any of the students, regardless of who the students happened to be?  If that is what the Defendants are saying, then one must ask why we bother providing resources to school children at all (leaving aside the Constitutional mandate, of course).  The idea that resources could never improve education would certainly be news to the student trying to understand the behavior of gases without a science lab. 

More likely, what Defendants are really saying is that additional resources do not help everyoneųand that a plaintiff must show that students who are not performing well will be aided by additional resources.  Based on evidence they put forward regarding the effect of socio-economic factors on school performance, Defendants would have the court examine the socio-economic background of a school‚s students to see if they would actually perform better with better instruction or textbooks.  Following Defendants‚ argument to its logical and troubling conclusion, if all of the students were from wealthy families and/or stable backgrounds primed to succeed, then Plaintiffs could show causation.  But if the students came to school without adequate preparation, or were at risk educationally in some way, or were from underprivileged households, then the school‚s inadequate educational inputs would have to be overlooked because, according to Defendants, one could not prove that additional resources would improve the students‚ performance. 

Not only is that the antithesis of the constitutional requirement of educational opportunityųfor it denies opportunity to those deemed unworthy of itųbut it has the perverse result of providing additional resources to successful students, and fewer resources to students who need the most help.

Moreover, in the real world each school is not filled with a group of identical students.  One of the things that makes a teacher‚s job rewarding is the fact that each student is different, just like the rest of us mortals who are no longer in grade school or high school.  Some students can perform well despite adversity.  Some students cannot.  Thus, another flawųa danger, reallyųin the Defendants‚ reasoning is the way in which individuals are lumped together and their differences are ignored.  Even if the Defendants‚ causation analysis were legally relevant, can it ever really be the case that an increase in resources would not help one single student? 

The Education Article requires that all children receive an educational opportunity, and the Court of Appeals decision in CFE I is based on the assumption that all students can be helped by such an inquiry.  Defendants‚ attempt to rely on regression analyses to show that additional funds will not improve performance in the City‚s schools not only violates the tenets of CFE I, but Defendants‚ evidence falls far short of disproving what every Court must assumeųthat in every school in which the Education Article is being violated, there are students who would benefit from a Court remedy.  To assume anything less would be an injustice to the children whose futures depend on the constitutional guarantee of educational opportunity.  Nobody in this State has to prove an entitlement to that opportunity.

            In any event, the evidence at trial showed that there is a correlation between additional resources and increased student performance.  In particular, programs that focus improved resources on at-risk children have shown significant successes.  (See, e.g., Fink 7767:8-22; Px1762 at 4; Px3161 at 3).  As one State report put it, „We know that children from even the worst circumstances, if given appropriate instruction and support, can succeed in school.  We have daily evidence that this is so, demonstrated by caring, effective teachers and children in pockets of excellence obscured by statewide averages.š  (Px 1 at 167).

            If the Court‚s order is upheld, so that the State finally fulfills its obligation to adequately fund the City‚s public school system, the UFT has no doubt that the performance of the students will concomitantly improve.

IV.           TEACHER QUALITY IS AN IMPORTANT
FACTOR IN THE EDUCATION OF STUDENTS

            Defendants contend that teacher credentials are a poor indicator of effective teachingųthat there is „little or no correlationš between student learning and such criteria as teacher experience, teacher education, and teacher certification. (Defendants‚ Br. at 70 and 104).  One can only wonder:  if neither experience, education, nor certification have any bearing on teacher performance, what differentiates a satisfactory teacher from one who is not?  Height?  Weight?  Principals‚ likes or dislikes?

            The Court below wisely paid little heed to Defendants‚ contention.  The record contains overwhelming evidence, including testimony from Defendants‚ own experts, confirming the common sense view that the same qualities that indicate good performance by all manner of professionals indicate good performance by teachers.  The UFT, perhaps the most knowledgeable organization regarding what qualities help improve teacher performance, can assure this Court that factors such as experience, teacher knowledge and education, and certification do indeed matter.

            Experience:  A lack of experience hampers effectivenessųa good teacher needs at least two or three years under his or her belt.  (Darling-Hammond 6349:17-6350:10; Podgursky 17634:12-21; Hanushek 15951:10-15).  The UFT can attest to the accuracy of Superintendent Dr. Betty Rosa‚s vivid description of the difference experience makes:

My experienced teachers usually have the routines [and], have materials that they have updated.  They have had several years of workshops.  They tend to take the best practices from year to year and improve on them.  My young teachers, inexperienced, are struggling and experimenting, [and] are, for the most part overwhelmed with the many responsibilities of the classroom both from an instructional as well as administrative standpoint, so most of my experienced teachers looked very organized in classrooms where instruction is taking place whereas [with] my inexperienced [teachers, in] many of those classrooms you can see teachers struggling.  (Rosa 11104:21-11105:12).

            Teacher Knowledge and Education:  As UFT President Randi Weingarten testified, subject matter knowledge is „critically importantš to effective teaching.  (Weingarten 2740:7-9).  Teachers who do not know their subject matter very well rush through the material and are not able to answer students‚ questions.  (Darling-Hammond 6339:13-22).  Not surprisingly, the quality of the teacher‚s own education affects the quality of the teacher‚s performance.  (Mills 1188:17-1189:16; Garner 3478:10-18, 3481:21-3482:15; Lankford 3877:7-3879:15; Schmidt 10949:2-23, 10953:6-21; Podgursky 17584:9-17585:23, 17636:16-25; Px2900-Young stmt. ¶71).

            Certification:  The link between teacher certification and the quality of instruction has been recognized by the State Education Department, the body charged with overseeing public schools throughout the state.  As Commissioner of Education Richard Mills testified, „[t]he lowest perform[ing] schools tend to have the highest proportion of uncertified teachers.š  (Mills 1188:5-11).  Certification is the most basic quality that a good teacher needs.  Not all certified teachers are actually qualified to teach, but those without certification are (with rare exception) not adequately prepared, and students with certified teachers fare better.  (Cashin 324:21-325:10; Sobol 1062:7-1063:4; Weingarten 2687:14-2688:25, 2748:13-2749:7; Garner 3473:15-3474:10; DeStefano 5410:7-5412:12, 5644:6-15; Darling-Hammond 6352:15-6355:4, 6404:7-21, 6418:14-6419:12; Zardoya 7027:13-7030:20; Sanford 11382:16-11383:18; Ward 3219:24-3220:19; Hernandez 9181:10-20; Coppin 665:7-19; Rosa 11107:8-12, 12229:6-25).

            How do the City‚s public school teachers measure up with respect to such critical indications of teacher performance?  In reviewing the record, this Court will see disturbing evidence that there are far too many uncertified and/or inexperienced teachers.  A „shockingly highš number of teachers (almost 14%) are not certified (Darling-Hammond 6413:24-6414:12; Lankford 3911:14-3912:5; Px1482 at 15,79; Px2 at 3, 66), and nearly one out of every four City teachers either lacks certification, has two or fewer years of experience, or both.   (Lankford 3914:25-3916:13; Px1482 at 17, 82).  The City teaching force has too much inexperience and turnover.  (Lankford 3910:20-3911:13; Px1482 at 12, 74; Px2 at 3, 66).  Indeed, a Board of Education study showed that of the 2,805 teachers hired in 1991-92, more than half were no longer teaching in City schools six years later.  (Px 1196 at 1). 

            The City need not be doomed to a continuing shortage of certified teachers.  The problem and the solution is easily recognizable:  resources.  There is a large pool of excellent teachers in and around the City who could (in theory) be recruited to support the existing corps, and to remain for years of service.  The problem is that recruiting and retaining teachers is difficult when the job description involves teaching in a dilapidated or unsafe building, with inadequate teaching materials, at a salary substantially below the salaries being paid by the well-funded school systems in the surrounding areas.  In short, the City just cannot compete.

The evidence at trial established that better qualified teachers in the local job pool tend to choose to work outside the City (Lankford 4038:6-4040:8; Px1482 at 171, 175, 186-187).  It established that a crucial problem in the City‚s recruitment effort is the fact that the average teacher salary in competing school districts is 36 percent greater than the City‚s average teacher salary.  (Px 1 at vi; Tames 2998:19-3001:17; Px1165 at 7, 10; Garner 3500:25-3501:4; Px1233 at 5, 7).  And it established as a general matter, much as one would expect, that there is a significant relationship between the performance of students in a school district and the salaries paid to teachers within that school district, within competing school districts, and among competing occupations.  (Ferguson 5972:12-22; Px1694).  In short, greater resources will yield more well qualified teachers.     Defendants suggest that having a greater number of certified, knowledgeable, and experienced teachers will not improve education in the City.  That simply is not supported by the weight of the academic literature.  The fact is that effective and skillful teachers can have a dramatic effect on the quality of students‚ education, particularly the education of students at risk.  (Ferguson 5906:10-16, 5982:5-14; Darling-Hammond 6355:5 -6356:5; Hanushek 15928:14-16).  And that is why the lack of qualified teachers is such a serious problem in New York City. 

At the same time the City is failing to recruit and retain sufficient numbers of qualified teachers, it is attempting to educate a school population of which a full 93% is classified by the State as „extraordinary needsš or „high costš based solely on poverty and limited English proficiency.  (Px469A at 228, 29; Px2768; Px2769).  The combination of „at-riskš students and an insufficient number of qualified teachers is not a recipe for educational success.  Not only has the State failed to provide the City with adequately trained teachers equipped to transmit a sound basic education, but this failure harms those most in need of constitutional protection.


CONCLUSION

            For the foregoing reasons, the Order and Judgment being appealed from should be affirmed.

Dated:  New York, New York

            September 26, 2001

STROOCK & STROOCK & LAVAN LLP

 

 

By:________________________________

      Alan M. Klinger

      Adam S. Grace

      180 Maiden Lane

      New York, New York 10038

      (212) 806-5400

 

                        and

 

Carol L. Gerstl, Esq.

UNITED FEDERATION OF TEACHERS

260 Park Avenue South

New York, New York  10010

(212) 777-7500

 

Attorneys for the United Federation of Teachers