ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION:Κ FIRST DEPARTMENT

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

 

CAMPAIGNΚ FOR FISCAL EQUITY, INC., et al.,

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Plaintiffs-Respondents,

 

- against -

 

 

THE STATE OF NEW YORK, et al.,

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Defendants-Appellants.

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Index No. 11107/93

 

 

ΚΚΚ ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

 

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ BRIEF FOR AMICUS CURIAE

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ NEW YORK STATE ASSOCIATION OF

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ SMALL CITY SCHOOL DISTRICTS, INC.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ DeGraff, Foy, Holt-Harris & Kunz, LLP

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Attorneys for New York State Association

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ of Small City School Districts, Inc.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ 90 State Street

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Albany, New York 12207

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ (518) 462-5300

 

Of Counsel:

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Robert E. Biggerstaff, Esq.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Glen P. Doherty, Esq.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Scott C. Paton, Esq.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

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ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ PRELIMINARY STATEMENT

 


 

ΚΚΚΚΚΚΚΚΚΚΚ This amicus brief[1] is submitted for the Court's consideration in connection with the pending appeal from the January 31, 2001 decision and order of Supreme Court (DeGrasse, J.).Κ 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.

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ INTRODUCTION

 

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

 

ΚΚΚΚΚΚΚΚΚΚΚ There are only 62 cities in New York, including the 57 small cities, representing less than 10% of the almost 700 public school districts in the state, yet the city schools educate slightly over half of the state's students.Κ The poverty rate in city schools is 75% compared to 24% outside of city schools.Κ 76% of the poor children in the state are educated in city schools.Κ Yet city school districts account for only 45% of public education spending.Κ In 1999-2000, the average per-pupil spending of city schools was $8,969 compared to $11,144 outside of cities.Κ While the combination of high poverty and low spending is not unique to cities, nor is it present in all cities, it is a predominantly urban phenomenon.

 

ΚΚΚΚΚΚΚΚΚΚΚ On all measures of school outcomes--test scores, attendance, graduation--students in poverty present a stark contrast to their more advantaged peers.Κ These outcomes demonstrate a very high probability that students from poverty in New York will not attain the skills and credentials necessary to gain access to a mainstream political and economic life in this State.Κ While resources alone may not guarantee that this problem will be solved, the lack of resources allocated to address the problem clearly contributes to its depth and persistence.

 

ΚΚΚΚΚΚΚΚΚΚΚ The very concentration of poverty in a few, large school districts creates a formidable political obstacle to any meaningful attempt to address these problems.Κ Throughout the nation and in neighboring states, state legislatures have been consistently unable to muster the political will to target additional funding to high poverty districts.Κ Thus, in state after state, the intervention of the courts has been necessary to secure the rights of children in the face of political gridlock.Κ After court intervention, solutions were found that were not politically viable prior to intervention.

 

ΚΚΚΚΚΚΚΚΚΚΚ New York State presents a classic example of legislative incapacity.Κ For over thirty years, this problem has been the subject of commissions, studies, legislation and litigation.Κ Twenty-five years of data maintained by the State Education Department show that, while school spending rose by over 400% between 1973 and 1998, the relationship of spending in low wealth communities to high wealth communities has remained the same.Κ In 1973, the district at the 75th percentile spent 39% more than the district at the 25th percentile.Κ By 1998, it spent 42% more.Κ The steady application of any rational policy in the allocation of a 400% increase in funding over twenty-five years would have corrected these inequities long ago.Κ The geography of power and wealth in this state simply precludes any fundamental change in the present allocation of school funding absent a court intervention.

 

ΚΚΚΚΚΚΚΚΚΚΚ Such an intervention does not require the courts to run the schools, or even to specify particular remedies.Κ Nor does it require the state to abandon local control of school finances.Κ There are dozens of examples from other states confronted with nearly identical problems.Κ What is required is a clear mandate and a firm timetable.Κ While the legislature may pile complexity on top of complexity in attempting to cope with the many diverse needs of the state, overall progress in this area is easily determined by the results.Κ Schools with high concentrations of poverty should increase in resources at an appreciably faster rate than schools with low concentrations of poverty.Κ Steady progress over time should result in a system that provides more resources, not less, to high poverty schools.Κ Such progress has not occurred in the last twenty-five years, nor will it occur in the next twenty-five years without a clear standard of adequacy developed by the courts.

 

ΚΚΚΚΚΚΚΚΚΚΚ The legislative gridlock in New York is not getting better, it is getting worse.Κ In the face of a clear showing of the system's deficiencies through extensive public testimony and a reasoned judicial opinion, New York State's political processes have been unwilling to frame any education budget at all.Κ The poorest school districts, which are the most dependent upon state support, have received only meager school aid increases for 2001-2002 and small city school districts, which are largely dependent on Special Aid to Small City School Districts (Hurd Aid) have been cut by 16% or more than $12 million in that aid category alone.Κ Absent a reasonable increase, all inflationary costs eat away at existing resources.Κ At the same time, wealthy schools have access to large and expanding property tax bases to maintain spending without a school aid increase.Κ Thus, the problem worsens.Κ Political geography and partisan power virtually guarantee the reelection of incumbents and the stability of leadership in the legislature.Κ Thus, there is little hope of political solution to these problems.Κ Never was there a clearer case for the duty of the courts to reaffirm the constitutional guarantees that the citizens of this State have given to their children.Κ

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ INTEREST OF AMICUS CURIAE

 

ΚΚΚΚΚΚΚΚΚΚΚ This Brief is submitted by the New York State Association of Small City School Districts, Inc., an organization comprised of various city-school districts, which seek amicus status before this Court in connection with the instant appeal.

 

ΚΚΚΚΚΚΚΚΚΚΚ The New York State Association of Small City School Districts, Inc. (hereinafter "SCSD") is a not-for-profit corporation organized under the laws of New York State.Κ The 57 small city districts are defined and governed by New York Education Law Articles 51 and 53.Κ The districts are located in all the major cities of the state from Long Island to Niagara Falls, excluding the largest five cities: New York, Yonkers, Syracuse, Rochester and Buffalo.Κ The districts consist of Albany, Amsterdam, Auburn, Batavia, Beacon, Binghamton, Canandaigua, Cohoes, Corning, Cortland, Dunkirk, Elmira, Fulton, Geneva, Glen Cove, Glens Falls, Gloversville, Hornell, Hudson, Ithaca, Jamestown, Johnstown, Kingston, Lackawanna, Little Falls, Lockport, Long Beach, Mechanicville, Middletown, Mount Vernon, New Rochelle, Newburgh, Niagara Falls, North Tonawanda, Norwich, Ogdensburg, Olean, Oneida, Oneonta, Oswego, Peekskill, Plattsburgh, Port Jervis, Poughkeepsie, Rensselaer, Rome, Rye, Salamanca, Saratoga Springs, Schenectady, Sherrill, Tonawanda, Troy, Utica, Watertown, Watervliet, and White Plains.Κ

 

ΚΚΚΚΚΚΚΚΚΚΚ The SCSD districts serve approximately 260,000 children and employ more than 20,000 teachers, administrators and other non-teaching staff (see, A Report to the Governor and the Legislature on the Educational Status of the State's Schools:Κ Submitted July 2000 [Statistical Profiles of Public School Districts] ["Statistical Profiles"] at 16 et seq.).Κ The districts are either co-terminus or inclusive (i.e., enlarged beyond the boundaries) of the small cities of the State which themselves are defined as those cities with less than 125,000 in population (see, N.Y. Educ. Law € 2601).Κ They are, unlike the five large city districts, fiscally independent of the city in which they are located (Chapter 762 of the Laws of 1950).Κ And they set the amount to be levied for school taxes for support of their annual school budgets by district wide vote, on the third Tuesday of May of each year. (see, N.Y. Educ. Law € 2601 a).Κ Their school boards are elected on a staggered basis for three- or five-year terms in annual elections in May (except in Albany City School District) of each year (see, N.Y. Educ. Law € 2602).Κ

 

ΚΚΚΚΚΚΚΚΚΚΚ School districts within SCSD are urban districts which have much in common with the five large city districts.Κ They are generally the largest or among the largest districts in their respective regions and on average are nearly two and one-half times the size of the average non-city district in student population (see, Statistical Profiles at tables 1-15).Κ They have higher percentages of poor and minority students than their suburban counterparts; higher percentages of children with special educational needs and of children on the free and reduced price lunch program; and higher percentages of dropouts and children at risk (see, Statistical Profiles at tables 1-15).

 

ΚΚΚΚΚΚΚΚΚΚΚ SCSD includes a total of 57 school districts, of which 61% are characterized by the State Education Department as high need/low resource districts (i.e., the highest need districts as shown by high poverty and a low combined wealth ratio). (see, A Report to the Governor and the Legislature on the Educational Status of the State's Schools:Κ Submitted July 2000 [Statewide Profile of the Educational System] ["Statewide Profile"] at table 3 and Statistical Profile at table 1).Κ

 

ΚΚΚΚΚΚΚΚΚΚΚ For example, the Albany City School District, which serves 10,380 students, possesses a nearly 70% minority student population[2], with 81% of its students on the free and reduced-price lunch program[3], and a drop-out rate of 3.4% (see, Statistical Profile at table 1).Κ The surrounding suburban districts have by way of contrast less than 6% minority population, approximately 17% of their students on the free and reduced price lunch program, and a drop-out rate of 1.1%, or less than one-third of Albany's.Κ Niagara Falls City School District, in turn, serves 9,053 students, has a 38.8% minority student population, 65.5% of its students on the free and reduced price lunch program, and a poverty index of 28. (Id., at table 1).Κ Its surrounding suburban districts have approximately 3.6% minority students, 24% on free and reduced-price lunch, and a poverty index approximately one-third that of Niagara Falls.Κ (Id., at table 1).Κ This data is only a small indication of the much more difficult challenges facing the small city school districts in educating the urban student than are encountered by their surrounding suburban neighbors.

 

ΚΚΚΚΚΚΚΚΚΚΚ The financial base of small city school districts, as in non-city districts, is provided primarily by a combination of local revenues from real property and non-property school taxes, state aid and federal aid.Κ

 

ΚΚΚΚΚΚΚΚΚΚΚ In addition to the revenue sources available to non-city districts, small city school districts have two other sources of funding.Κ First, the districts may levy up to 3% on utility services (see, Tax Law € 1212).Κ Only 19 of 57 districts have utility taxes in effect.Κ Second, special aid is available to small city districts ("Hurd Aid"), which currently provides $70 million per year or 6% (approximately) of the total of all computerized state aid to small city districts (see, N.Y. Educ. Law € 3602 [31-a]).Κ However, Hurd Aid is subject to a cumulative 2% per year reduction phase-out schedule, which took effect in 1988 and will eliminate 70% of the aid for most districts on the phase-out schedule within 10 years.Κ This is the only "save harmless" category of aid that the State has allowed to diminish.Κ "Save harmless" aids for high wealth districts have been maintained even during recent recessionary periods.Κ The following two charts quantify the loss in Hurd Aid over a fifteen-year period that small city school districts are currently experiencing:

 

 

AMOUNT SAVE-HARMLESS

 

 

YEAR

PAID

BASIS

PERCENT
REMAINING

 

 

ORIG.

Κ$10,000,000

100.0%

100.0%

 

 

1

Κ$ 9,800,000

98.0%

98.0%

 

 

2

Κ$ 9,406,000

96.0%

94.1%

 

 

3

Κ$ 8,843,520

94.0%

86.4%

 

 

4

Κ$ 8,136,038

92.0%

81.4%

 

 

5

Κ$ 7,322,435

90.0%

73.2%

 

 

6

Κ$ 6,443,842

88.0%

64.4%

 

 

7

Κ$ 5,541,618

86.0%

55.4%

 

 

8

Κ$ 4,654,960

84.0%

46.5%

 

 

9

Κ$ 3,817,067

82.0%

38.2%

 

 

10

Κ$ 3,053,653

80.0%

30.5%

 

 

11

Κ$ 2,381,850

78.0%

23.8%

 

 

12

Κ$ 1,810,206

76.0%

18.1%

 

 

13

Κ$ 1,339,552

74.0%

13.4%

 

 

14

Κ$ΚΚΚ 964,478

72.0%

9.6%

 

 

15

Κ$ΚΚΚ 875,134

70.0%

5.8%

 

 

 

 

 

 

 

 

SMALL CITY AID IS 70% GONE BY 10th YEAR

 

 

 

 

 

 

 

 

SMALL CITY AID IS 90% GONE BY 14th YEAR

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

% OF ORIGINAL AID LEFT

 

 

BASED ON SE OF SAVE-HARMELESS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ΚΚΚΚΚΚΚΚΚΚΚ In addition to the steady losses in Hurd Aid experienced from 1988 to 2001, small city school districts have had to cope with other adverse financial changes.Κ From the time Hurd Aid began to decline to present, the average per-pupil expenditure in small city districts rose from $6,507 in 1987-88 to $9,958 in 1997-1998 -- (see, Statistical Profile at table 2).Κ At the same time, the state share of support for education in the small cities declined steadily, and the small cities combined wealth ratio (and, hence, ability to tax itself) declined markedly from 0.976 to 0.824 (Id.).Κ

 

ΚΚΚΚΚΚΚΚΚΚΚ A comparison to the average State and suburban for combined wealth ratios, which increased during the same period, shows the enormous stress that small city districts finances have been placed under in recent years from inadequate and inequitably distributed state support of their programs (Id.).Κ The cumulative loss of approximately $250 million in Hurd Aid since 1988, the decline in wealth and the increase in costs have shifted an enormous fiscal burden to the local tax base of the small city districts through significant increases in local tax levies.Κ In future years, the rate of the Hurd Aid phase-out will continue to accelerate, adding even greater burdens to already strapped local taxpayers, and will erode any future increases in state aid to education.Κ Total phase out of Hurd Aid, which currently amounts to $70 million, would have a severe destabilizing impact on the budgets, tax rates and programs of most small city districts.Κ Moreover, with respect to certain districts which are heavily Hurd Aid dependent, such as Poughkeepsie City School District, Newburgh City School District, and Long Beach City School District, to name only a few, the effect would be devastating.

 

ΚΚΚΚΚΚΚΚΚΚΚ Small city districts real property tax rates (based on full value) are among the highest in their respective regions.Κ When city taxes are added to school district taxes, the combined small city tax rates are the highest overall rates in their respective counties (see, Special Report on Municipal Affairs [for local fiscal years ended in 1992], Office of the State Comptroller, New York State at 317-405 and Overall Real Property Taxes:Κ Tax Levy and Tax Rate Statistics -- New York State Local Governments -- Fiscal Years Ended 1991, Office of State Comptroller, New York State [December 1991]).Κ These factors all demonstrate how fragile the financial support of small city schools is, and how critical the issue of equitable distribution of state aid is to the ability of these districts to meet the enormous burdens of educating our inner city youth.

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ LEGAL BACKGROUND

A.Κ 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 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:

 

ΚΚΚΚΚΚΚΚΚΚΚ 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"Κ (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 Κv. ΚState 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, 42USC € 200d et seq.).Κ A majority of the closely divided Court[4] 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.


 

1.                  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.

 

2.                  Education Article Claim

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ a.ΚΚΚΚΚΚΚΚ A Sound Basic Education

 

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":

 

ΚΚΚΚΚΚΚΚΚΚΚ 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).

Κ

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 a citizenry possessing 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:

 

ΚΚΚΚΚΚΚΚΚΚΚ 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"Κ (Id., at 317-318).

 

ΚΚΚΚΚΚΚΚΚΚΚ The Court of Appealβs 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

 

ΚΚΚΚΚΚΚΚΚΚΚ 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.).

 


ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ b.ΚΚΚΚΚΚΚΚ Causation

 

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. ΚIn 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:

 

ΚΚΚΚΚΚΚΚΚΚΚ 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 CFEΚ (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).

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ c.ΚΚΚΚΚΚΚΚ Conclusion

 

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.Κ CFE v. State:Κ The Trial

 

ΚΚΚΚΚΚΚΚΚΚΚ As a result of the Court of Appealβs 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?[5]

 

Following a seven-month trial, consisting of 111 days of testimony given by 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.Κ 78).Κ However, the trail court provided the following description of those resources which must be provided by any acceptable educational system:

 

(1)               Sufficient numbers of qualified teachers, principal 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 them "more time on task".

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

ΚΚΚΚΚΚΚΚΚΚΚ (7)ΚΚΚΚΚΚΚ 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.

 


ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ ARGUMENT

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ POINT I

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ THE STATE EDUCATIONAL SYSTEM IS UNCONSTITUTIONAL

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ FOR FAILURE TO PROVIDE ALL CHILDREN THE OPPORTUNITY

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ FOR A SOUND BASIC EDUCATION

 

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, 187 Misc.2d 1 (Sup.Ct.N.Y.Co. 2001) (Decision) held that New York State has consistently violated Article XI €1 of the State Constitution for many years by failing to provide New York City public school students the opportunity for 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 provided by the Court of Appeals in the Levittown and CFE decisions.

 

ΚΚΚΚΚΚΚΚΚΚΚ The Levittown decision provided that the Education Article guaranteed "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 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.,Κ at 48).

 

ΚΚΚΚΚΚΚΚΚΚΚ The Court in CFE confirmed its holdings in Levittown and set forth this interpretation of "sound basic education":

 

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ 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 (Id., 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 Commissioner's 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 obligated 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 Appealβs CFE decision did not provide a "final definition of that which constitutes a "sound basic education" (Decision, at p.Κ 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.Κ 9).

1.                  Analysis of "Inputs" and "Outputs"

ΚΚΚΚΚΚΚΚΚΚΚ The trial court went on to implement the Court of Appealβs suggestion 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 upon 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.

a.                  "Inputs"

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.

b.                  "Outputs"

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.

c.                   Conclusion

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.

2.                  Causation

ΚΚΚΚΚΚΚΚΚΚΚ After concluding that the New York City public school system is constitutionally deficient, the trial court examined whether a causal link 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-opinion testimony which analyzed that data and 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.ΚΚ

 

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 the lack of sufficient numbers of certified teachers (Decision, at p. 39), on the Regentsβ mandate to use only certified teachers by the year 2003 (Decision, at p. 42), and on the lack of sufficiently experienced teachers.Κ The Court received evidence that the teachers with less than 2 years experience are not fully competent (Decision, at p. 45), about 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.Κ 52-53), on the underfunding of arts and physical education programs which are necessary to a sound basic education (Decision, at p. 61), on underfunding through the wealth formulas which misstate the wealth of New York City[6] (Decision, at p. 141), on the extreme age of many school buildings in New York City (Decision, at p. 72), on overcrowding of classrooms and the negative effect that overcrowding has on student performance (Decision, at p. 78), on 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), on graduation figures which are based upon most children receiving only 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), and on numerous other indicia of the inadequacy of resources and results.Κ The Court also found that passage of the RCTs is not evidence that a child has received a sound basic education because the Regents have decided to phase out the local diploma as of 2004[7].Κ 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.Κ The Court 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 Court wrote, 88% of children in New York City Schools have not demonstrated that they have received a sound basic education (Decision, at p. 101).Κ The trial court then fulfilled the Court of Appealβs 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 defendant's 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.Κ 122-123).

 

ΚΚΚΚΚΚΚΚΚΚΚ Clearly, Justice DeGrasse has followed the Court of Appeal's decisions in Levittown and CFE, and has given careful consideration to the voluminous testimony and evidence produced at trial.Κ His findings of fact, which are abundantly supported by the overwhelming weight of credible evidence adduced at trial, and conclusions of law, should be affirmed.


ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ POINT II

THE EDUCATION ARTICLE OF THE STATE CONSTITUTION WHICH REQUIRES THE LEGISLATURE TO PROVIDEΚ FOR A SYSTEM WHEREIN ALL CHILDREN MAY BE EDUCATED MEANS THAT ALL CHILDREN MUST HAVE A MEANINGFULΚ OPPORTUNITY FOR A SOUND BASIC EDUCATION,

AND THAT SYSTEM, IN ORDER TO PROVIDE A MEANINGFUL OPPORTUNITY, MUST COMPENSATE FOR THE VARYING EDUCATIONAL, PHYSICAL, EMOTIONAL, MENTAL, AND SOCIOECONOMIC DISADVANTAGES THAT CHILDREN HAVE

 

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? [8]

 

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[9] 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 SW 2nd 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.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ POINT III

ΚΚ THE STATE EDUCATIONAL SYSTEM IS UNCONSTITUTIONAL FOR FAILURE TO

ΚΚΚΚΚ PROVIDE CHILDREN IN POOR URBAN SCHOOL DISTRICTS A SOUND BASIC

EDUCATION BY NOT COMPENSATING FOR SOCIOECONOMIC DISADVANTAGES

 

ΚΚΚΚΚΚΚΚΚΚΚ Of the 62 poorest districts in the State, representing 10% of the total districts state-wide, four are large city school districts and 24 are small city school districts.Κ When the student performance and demographics are reviewed for these districts we see that they have the lowest test results on the English Language Arts (ELA) tests in the 4th and 8th grades, the highest drop out rates and the highest ratio of classification for special education.

 

ΚΚΚΚΚΚΚΚΚΚΚ We also see that the base measure of poverty, the percentage of children on the free and reduced price lunch program, accounts for over 61% of the differences among districts on the ELA tests, indicating a systemic failure of our educational system with children in poverty.

 

ΚΚΚΚΚΚΚΚΚΚΚ The following chart and discussion support the conclusions and facts cited herein and are derived from the Chapter 655 Report, Statistical Profiles of Public School Districts, 1999, for the 624 major K-12 school districts outside New York City.

 

624 major K-12 school districts outside of New York City were sorted according to the percent of children eligible for free or reduced-price lunch.Κ

 

Performance Indicator

Highest Poverty 10% or 62 Districts

 

Lowest Poverty 20% or 125 Districts

 

Average District of 625

 

Free And Reduced Lunch Rate

65.6%

6.4%

31.8%

ELA 4 Mean Score 1999

638

659

649

ELA 4 Mean Score 2000

649

676

662

ELA 8 Mean Score 1999

694

715

704

ELA 8 Mean Score 2000

690

716

702

ELA 8 Level 1 2000

16

3

7

ELA 8 Level 2 2000

50

28

42

ELA 8 Level 3 2000

29

49

40

ELA 8 Level 4 2000

5

20

11

Suspension Rate

8.0

2.5

4.2

Pct Classified > 60%

5.6

2.8

3.4

Dropout Rate

3.3%

0.9%

2.1%

The Education Department considers level 1 to be far below standard and level 2 to be below standard, level 3 is meeting standards and level 4 is considered mastery.ΚΚΚΚΚ

 

Resource Indicators

Highest Poverty

Lowest Poverty

Average District

Property Wealth Ratio

.640

1.962

1.169

Income Wealth Ratio

.545

1.910

.928

Expenditure (AOE/TAPU)

6,552

8,745

6,852

Tax Rate

19.68

19.81

18.33

Percent of Teachers with MA + 30

18

37

21

Pupil/Teacher Ratio

14.2

14.2

14.1

ΚΚΚΚΚΚΚΚΚΚΚ

 

Afro-American Students

Highest Poverty

Lowest Poverty

All Districts

Percent of Enrollment

20.6

2.3

4.9

Afro-American Students Outside NYC

66.6% or

119,300

5.8% or

10,403

100% or

179,024

 

 

ΚΚΚΚΚΚΚΚΚΚΚ

ΚΚΚΚΚΚΚΚΚΚΚ First:Κ As of the first testing of 630 K-12 districts outside of New York City, the statistical relationship between poverty and English/Language Arts test results was enormous.Κ Sixty percent of the variance in test scores was described by the district's free and reduced-price lunch percentage.Κ That is appalling.

 

ΚΚΚΚΚΚΚΚΚΚΚ Second:Κ The relationship between the total spending of the school districts, including federal and state grants and adjusted for regional cost differences, and the percentage of poverty in the district is very slightly less than zero.Κ That is also appalling.Κ Despite all State grants, Federal Title I money, Hurd-Aid, and all other supposedly supplemental resources combined, high-poverty schools in New York have no additional resources to address differences in family background.Κ With the second fact known, the first fact is less of a shock, but no less shameful.

 

ΚΚΚΚΚΚΚΚΚΚΚ These two facts together describe the state system in which we compete and in which we are held accountable.

 

Small City School Districts

 

ΚΚΚΚΚΚΚΚΚΚΚ The small city school districts show a good deal of diversity on all characteristics.Κ However, on balance they serve a population with a significantly higher level of poverty with 48.3% of their students eligible for free or reduced price lunches, compared to 31.5% in all districts outside of New York City.Κ They are also relatively large districts averaging 4,537 students, with limited local resources, represented by a wealth ratio of only 82% of the state average.Κ The State of New York characterizes most small city schools as "high need to resource" indicating that, relative to other schools, small cities have a high educational burden but few financial resources.Κ Small cities spend slightly less than the average in absolute dollars, but very slightly more (1.8%) when spending is adjusted for regional costs.Κ Thus, the total educational resources including state, local and federal funds do not provide supplemental funding overall.

 

Performance on the English/Language Arts Examinations

 

ΚΚΚΚΚΚΚΚΚΚΚ In the initial administration of the 4th and 8th grade English/Language Arts examinations, small city district average mean scores were slightly lower than the state average (-.8%).Κ Moreover, 60% more students scored in the lowest ranking (level 1), while 20% fewer students scored in the highest ranking (level 4) than in the average district in the state on both tests.Κ Based on the absolute scores, this would put these districts in the lower range of the state distribution in these areas.

 

ΚΚΚΚΚΚΚΚΚΚΚ Other districts in New York showed a very strong inverse relationship between the percentage of free/reduced lunch students in the district and the student performance on these tests.Κ Measured against this trend line, the performance of small city students was very consistent.Κ Out of seven small cities with relatively low poverty, five scored higher than the average for this group.Κ At the high poverty level, however, 21 small cities scored below the prediction, while 20 scored above.Κ The average deviation of all small city school from the prediction was very close to zero.

 

Characteristics Related to High Performance

 

ΚΚΚΚΚΚΚΚΚΚΚ In the overall study of performance on these tests, certain other district statistics were associated with higher performance, while others were not.Κ The small city schools relative standing on these characteristics followed the general pattern:

 

ΚΚΚΚΚΚΚΚΚΚΚ Classifications of students with disabilities:Κ Small city rate of classification (13.4%) was 10% higher than the average.Κ In addition, small cities show a 45% higher rate of classification for students in separate settings 60% or more of the school day.Κ In other words, a higher percentage of students are placed in high intensity settings.Κ A low rate of classification in settings more than 60% of the school day was typical of the higher performing districts, both among small cities and among all schools.

 

ΚΚΚΚΚΚΚΚΚΚΚ Suspension, Absence and Dropout Rates:Κ Small city rates are significantly higher than the average.Κ As with all schools, the higher performing small cities had lower rates of suspension, absence and dropping out than the average small city.

 

ΚΚΚΚΚΚΚΚΚΚΚ All of the above statistics show significant inverse correlations with success in out-performing the relationship between poverty and test scores.Κ In other words, high rates of classification, suspension, absence and dropping out correlated with a low degree of success against poverty.

 

Resources

 

ΚΚΚΚΚΚΚΚΚΚΚ When expenditures are adjusted for regional differences, there is some correlation between total expenditures and performance, and a somewhat stronger correlation between instructional expenditures and performance.

 

ΚΚΚΚΚΚΚΚΚΚΚ Relationships with student performance also exist for pupil/teacher ratio, and stronger relationships with average class size.Κ The average small city pupil/teacher ratio and average class sizes are both slightly higher than average.

 

ΚΚΚΚΚΚΚΚΚΚΚ Both in instructional spending and in teacher deployment, districts that have focused spending in the areas relevant to high performance tend to demonstrate higher performance, both in small cities and statewide.

 

ConclusionsΚΚΚ

 

πΚΚΚΚΚΚΚΚΚΚ There is no evidence of additional funding overall in small ΚΚΚΚΚΚΚΚΚ cities. Thus, there is no evidence of supplemental resources available to students in high-poverty urban districts in upstate New York.Κ Since special funding is targeted by the legislature through the state aid formula and from federal aid, and since these districts are required to utilize these revenues for supplemental programs, the fact that it does not show up either in spending or in lower taxes means that it is offset by other inadequacies of the aid system.

 

πΚΚΚΚΚΚΚΚΚΚ The implications of the lack of additional funding for improving educational opportunity for students in high-poverty districts are severe.Κ For every dollar spent on Κ additional time, remediation, special education or classsize-reduction, another dollar must be cut out somewhere else.Κ In order to increase spending overall to provide additional programs, most high-poverty schools would have to raise school taxes far above those in suburban districts, even though they already bear a far greater tax burden from municipal services.Κ In small cities, where voters must approve budget increases, it is unlikely that residents would do so.Κ Funding charter schools at the expense of these districts will exacerbate these problems.

 

πΚΚΚΚΚΚΚΚΚΚ There is evidence to support some additional spending burdens in cities as a result of mandated tuition costs, property tax refunds and higher health insurance costs.

 

πΚΚΚΚΚΚΚΚΚΚ There is evidence to demonstrate that higher federal aid to ΚΚΚΚΚΚΚ cities is offset by inadequate State funding such that no additional instructional resources are provided to children.

 

πΚΚΚΚΚΚΚΚΚΚ There is evidence to show that the measurement of income in cities is distorted and improperly used in the aid formula.

 

πΚΚΚΚΚΚΚΚΚΚ There is no evidence to indicate inefficiencies in spendingΚ on non-instructional areas.

 

πΚΚΚΚΚΚΚΚΚΚ On balance, there is substantial evidence that the overall finance system does nothing to assist high poverty schools in raising performance, but continues to support higher spending in higher wealth districts.

 

ΚΚΚΚΚΚΚΚΚΚΚ The Chapter 655 Report data show a positive correlation between additional resources and student success and show that the Small City Schools do not receive additional aid to compensate for their students special needs.Κ Failure of the State to maintain a system which provides those additional resources to small city students with socioeconomic disadvantages denies those students the opportunity to receive a sound basic education.


ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ POINT IV

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ THE CONSTITUTIONAL MANDATE OF ARTICLE XI €1 IS

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ NOT SATISFIED WHERE THE LEGISLATURE DELEGATES ITS

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ RESPONSIBILITIES TO A POLITICAL SUBDIVISION WHICH FAILS

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ TO FULFILL THAT MANDATE

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ

ΚΚΚΚΚΚΚΚΚΚΚ The constitutional mandate of Article XI €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 (Attorney General's Brief at p. 60).Κ This so called "pointing fingers" argument has been expressly rejected by the trial court in Levittown (94 Misc 2d at pp. 527-528).Κ The trial court there adopted the language of the original plaintiffs which stated "whether the Legislature chooses to run a centrally mange 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 The Court also buttressed its argument by citing similar language contained in Robinson v. ΚCahill, 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 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 on 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 a state funding system, which produces inequities in funding, exists.Κ It is not relevant to a discussion of the State's responsibilities under the Education Article and should be disregarded.Κ (Attorney General's Brief at pp. 23,32,36,53,57,67 and 69).Κ The State's brief has stated that the State 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. 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 patently absurd result.Κ The State fails to recognize that the Education Article requires the Legislature to provide for the maintenance of a "system" of common 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 the 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.


CONCLUSION

 

ΚΚΚΚΚΚΚΚΚΚΚ 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, 2001Κ

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ ΚΚ By: ___________________________________

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Κ ΚΚΚΚΚΚΚΚΚ Robert E. Biggerstaff, Κ

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ DeGraff, Foy, Holt-Harris & Kunz, LLP

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Attorneys for New York State Association

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Κ of Small City School Districts, Inc.

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ 90 State Street

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ Albany, New YorkΚ 12207

ΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚΚ (518) 462-5300

 

of Counsel:

 

Robert E. Biggerstaff, Esq.

Glen P. Doherty, Esq.ΚΚ

Scott C. Paton, Esq.



[1] This brief was prepared with the assistance, for which we are grateful, of Charles A. Winters, AB, MA Syracuse University; Doctoral Candidate, Steinhardt School of Education at New York University; Associate Superintendent for Finance, Newburgh City School District, 1984-2000,

[2]In 1994-95 this percentage minority students was 60%

[3]In 1994-95 this percentage on free and reduced price lunch program was 72%

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

[5]Discussion of this issue will be omitted.

    [6]In the small cities the measurement of wealth especially hurts poor urban districts.Κ State aid apportionments rely heavily on various measures of the local capacity to raise funds to support education.Κ For decades local capacity was defined as the value of property behind each student to be educated, which was appropriate, since the property tax is the source of local revenue, and public school students represent the major cost driver.Κ However, in the 1970's the concept of using local taxable income in addition to property wealth was also introduced on the theory that higher levels of income represented a higher ability to pay property taxes.Κ Unfortunately, both the calculation and the measures were flawed.

 

ΚΚΚΚΚΚΚΚΚΚΚ The calculation is flawed in that the two wealth measures are averaged. ΚThus, a district that is poor in both property and income but much poorer in property, will have much higher taxes than an identical income community with a better tax base.Κ This would not occur if the ratios were multiplied rather than averaged.

 

ΚΚΚΚΚΚΚΚΚΚΚ The income measure in itself is flawed.Κ The income per pupil measure was intended to represent the typical income of the community, and it is an acceptable proxy for most districts with normal demographics.Κ However, when there is a large older population with low income but no children in school, and where there is a large segment attending nonpublic schools, this statistic is badly distorted by including all the income in the numerator, but only public school students in the denominator.

 

ΚΚΚΚΚΚΚΚΚΚΚ These are both characteristics common to many cities.Κ Thus, they are frequently measured as being wealthier in income than in property, and their state aid is reduced as a result.Κ Yet when it comes to raising funds, small city school districts, unlike New York City, only have access to property, and will require a higher tax effort to reach the same spending level.Κ For a district with high property wealth but even higher income, these distortions are relatively insignificant.Κ For a low wealth district, however, they could be very pronounced.

 

 [7]It should be noted that the Court of Appeals did not refer to the Regents' Competency Tests (RCT) when it wrote that many Regents' standards were "aspirational".Κ The Attorney General's brief misconstrued the clear intent of the Court of Appeals in CFE by stating γthe Court explicitly instructed the Trial Court not to rely on the Regents' and the Commissioner's Standards as benchmarks of educational adequacy, for the reason that many of [those] [standards] exceed notions of a minimally adequate or sound basic education-some are also aspirational.Κ Id. at 317 (emphasis added).Κ The Court was referring to the standards reflected in the Regents' Competency Tests (RCTs)-as opposed to the Regents' Learning Standards, . . . δ.Κ (Attorney General's brief at 25).Κ The Attorney General's brief again misconstrued the Court of Appealβs intent when it stated that "the RCTs are sufficiently demanding that the Court of Appeals labeled them aspirational, and found that they may exceed the Constitutionβs minimum adequacy requirement."Κ (Attorney General's brief at 60).

    [8]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.

    [9] 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.