Board of Education v. Nyquist

Weinstein, J. (concurring).

I concur in the opinion of Justice Lazer that the State system for financing public elementary and secondary schools violates the equal protection clause of the State Constitution and in the opinions of both Justices Hopkins and Lazer that the subject legis *252 lation also violates the education article of the State Constitution. This concurring opinion will focus on the equal protection claims of the intervening school districts, especially New York City.

The State financial aid to education scheme awards less aid to school districts with higher than average property wealth and adjusted gross income and proportionately lower attendance rates on the assumption that such districts can more easily provide local funding for education. Although initially this appears reasonable and equitable, further consideration reveals that in fact the impoverished and minority children in the intervening large city school districts receive less aid for their education notwithstanding their greater needs because the education aid formula either omits entirely or takes insufficient account of the large cities’ inexorable problems, their municipal and education overburdens, their lower attendance rates and the lower value of their educational dollar.

1.

The State education aid scheme has an inequitable impact on the children in the intervenors’ schools. Urban children receive less aid for their education than do children in rural and suburban schools.

The problems which beset the cities are the subject of numerous findings and are admirably set forth in summary fashion in Justice Lazer’s opinion. The conditions are familiar and include such intractable problems as crime, an aging physical plant and all the circumstances attendant upon a multiracial, multiethnic population, a large segment of which is impoverished, particularly in a port of entry. These widely publicized problems are not of the cities’ making and the cost of coping with them is hardly a matter of choice. Indeed, the very survival of the cities may depend on the success of their efforts to overcome these problems. In addition, the cities are burdened with a number of noneducation costs which have been mandated by the State. Accordingly, the cities’ higher noneducation costs (the municipal overburden) are inexorable.

*253 Since the cities’ ability to raise taxes is limited by economic and political factors as well as by the State Constitution (art VIII, § 10; Hurd v City of Buffalo, 34 NY2d 628 ), a consequence of the inexorable municipal overburden is that the cities have less funding available for educational services. 1 The cities’ reduced educational resources are therefore not the outcome of an optional preference, but the inevitable result of circumstances beyond their control. 2

At the same time, a number of special educational problems compete for the cities’ limited educational resources (the educational overburden). The cities have a larger proportion of pupils with special educational requirements — children who fail to achieve (“below minimum competence” students or “PSEN”), children who have difficulty with the English language, children who are excessively absent from school and children with physical and emotional handicaps. The high absentee rate of the cities’ pupils is inexorable.

The State education aid formula awards aid in inverse proportion to real property wealth and adjusted gross income and employs attendance as a factor in both the measure of the district’s ability to support education and the measure of the district’s education needs. Since, with the exception of Buffalo, the cities’ real property wealth and adjusted gross income are above the State average and since the attendance rate of the cities’ pupils is comparatively low, the formula awards less than average aid to city students.

The disproportionate impact of the education aid legislation on the cities’ public school children is well established. The intervenor cities have 37% of the State’s public school pupils, including 56% of the State’s “below minimum competence” students, but will receive only 32.9% of the State’s education operating aid. New York City, with 33% of the State’s public school enrollment, including 51% of *254 the State’s “below minimum competence” students, will receive only 29% of the State’s education operating aid. Alternatively stated, for the school year 1981-1982, the interveners will receive the following amounts of State operating expense aid per pupil unit: Rochester, $826; New York City, $931; Syracuse, $935; Buffalo, $1,075. The corresponding average amount for the rest of the State is $1,000. The intervenors enroll 57% of the most seriously handicapped students in the State’s public schools (that is, pupils who have been found to require special programs 60% or more of each school day), but the additional aid received for such students will be $1,628 in New York City, $1,873 in Rochester, $2,088 in Syracuse and $2,212 in Buffalo. The corresponding average amount for the rest of the State is $1,921.

This discrimination against city students was recognized by the Regents who, in 1976, recommended a modification of the pupil count and the use of the same pupil measure for both fiscal capacity and need in order to provide a more equitable pupil count and greater equity. 3

2.

In giving less aid to city students, the education aid formula has a disproportionately adverse effect not only on pupils from impoverished families, but also with respect to race, country of origin and alienage.

The cities’ populations are multiracial and multiethnic and include a large number of immigrants from a host of countries. The Immigration Act of 1965 increased the size and diversity of Asian groups in New York City 4 and the proportion of “nonwhite” (i.e., black, Asian, American Indian and “other”) persons in that city’s population increased from 23.4% in 1970 to 39% in 1980. 5 In contrast, “nonwhites” constitute only 20.5% of the State’s total population. Analysis reveals that 83% of the State’s “nonwhites” live in the intervenor cities, 77% of them in New York City. New York City’s population includes 74% of the State’s blacks, 74.6% of the State’s “Asian or Pacific *255 Islanders”, 88.7% of the State’s “others” and 84.7% of the State’s persons of “Spanish Origin”.

This diversity of population is reflected in the cities’' public schools, particularly those of New York City. In 1974-1975, New York City had 78.2%, and the combined four intervening districts 84.4% of the State’s “minority” students. 6 At the time of the trial, 100,000 to 110,000 New York City students were unable to participate in school effectively in English, and some of the cities’ immigrant pupils were totally illiterate in their own tongues. 7 In 1979-1980, New York City had 76.9% and the combined four intervening districts had 83.1% of the State’s black and “Hispanic” students. 8 Of the 963,048 students enrolled in the city’s public elementary and high schools, 371,302 (38.6%) were “Black (not Hispanic Origin)”, 286,693 (29.8%) were Hispanic, 36,880 (3.8%) were “American Indian, Alaskan Native, Asian or Pacific Islander”, and the remaining 268,173 students (27.8%) were “white (not Hispanic Origin)”. 9

In giving less aid to the cities’ students, particularly those of New York City, the education aid scheme has a disproportionate impact on the State’s minority students.

3.

While disparate impact alone is not determinative of the constitutionality of the subject legislation and proof of discriminatory intent is required, the fact that the law bears more heavily on one race than another is one of the totality of relevant facts from which an invidious discriminatory purpose may be inferred. To determine whether invidious discriminatory purpose was a motivating factor, a sensitive inquiry into all available evidence of intent is required and disproportionate impact provides an important starting point (Washington v Davis, 426 US 229, 241-242 ; Arlington Hgts. v Metropolitan Housing Corp., 429 US *256 252, 265-266 ; Personnel Administrator of Mass, v Feeney, 442 US 256, 271-274 ).

Among the evidentiary sources as to intent are the historical background and the legislative history (Arlington Hgts. v Metropolitan Housing Corp., supra, pp 267-268). The foundation system, which for all practical purposes remains in effect today, was adopted in the Cole-Rice Law of 1925 (L 1925, ch 675). The Diefendorf formula adopted in 1962 was an effort to correct inequities arising under the 1925 law and certain benefits formerly denied to the large cities were extended to them. The 1974 legislation was enacted in response to a wide consensus of opinion that the Diefendorf formula had not remedied the inequities. Yet today, 19 years after the adoption of the Diefendorf formula, the education aid legislation continues to have a substantial disproportionate impact on the public school children in the State’s largest cities and the three fourths or more of the State’s minority students who attend school in the intervening districts continue to receive proportionately less aid for their education.

The cases in which it was held that a discriminatory intent had not been proved are easily distinguished on their facts (cf. Arlington Hgts. v Metropolitan Housing Corp., 429 US 252 , supra; Washington v Davis, 426 US 229 , supra; Personnel Administrator of Mass, v Feeney, 442 US 256 , supra).

4.

In selecting the applicable standard of review, we have the right to find a stricter protective constitutional standard for New York than that set by the United States Supreme Court (Minnesota v Clover Leaf Creamery Co., 449 US 456, 461, n 6 ) and in recent years, a number of State courts, New York included, have construed “state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased.” (Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489, 495; Town of North Hempstead v Exxon Corp., 53 NY2d 747 , concurring opn of Fuchsberg, J., pp 754-756.)

*257 The degree of importance accorded the right to an education and the equal protection principles applicable to discrimination with respect to race, alienage and country of origin are reviewed fully in Justice Lazer’s scholarly opinion. Close scrutiny was held to be the appropriate test where aliens as a class were barred from tuition assistance for higher education (Nyquist v Mauclet, 432 US 1 ; cf. Ambach v Norwick, 441 US 68 ).

The subject legislation has a disproportionately adverse effect with respect to so important a right as education on the vast majority of the State’s minority students. Minority children with greater needs are receiving not equal, but less aid (cf. Matter of Bernstein v Toia, 43 NY2d 437 ). The number of children affected is enormous. Three quarters of New York City’s approximately 1,000,000 students fall outside the classification of “white (not Hispanic origin)”. One hundred thousand to 110,000 New York City pupils were unable to participate in school effectively in English at the time of the trial and 51% of the State’s “below minimum competence” students are enrolled in the city’s schools. 10

All of the above circumstances supply a cogent reason for the application, if not of strict scrutiny, of the heightened scrutiny test developed in Alevy v Downstate Med. Center of State of N. Y. ( 39 NY2d 326, 336 ), and the State does not contend that no less objectionable financial aid scheme will advance the State’s interest in the continuation of local control. Even under the “less than strict” but not yet “‘toothless’ standard of review”, 11 the statutory scheme fails. When noneducational costs are inexorable, the cities. have reached their taxing limit and the educational problems are ever more challenging, the extent of local control has become so limited that it can scarcely be maintained *258 that the statutory scheme substantially serves a substantial State objective. 12

5.

For the reasons stated, I concur with Justice Lazer in the modification of the judgment.

. Summary, Research Findings and Policy Alternatives: A Second Interim Report of the New York State Special Task Force on Equity and Excellence in Education, Sept., 1980, pp 6-7.

. Zelinsky, Educational Equalization and Suburban Sprawl: Subsidizing the Suburbs Through School Finance Reform, 71 Nw U L Rev 161, 165, 184-186, 189-190, 198, 203; Robinson v Cahill, 67 NJ 333, 351, 369.

. Major Recommendations of the Regents for Legislative Action 1977, Nov., 1976.

. Hune, “Asian Americans in New York City”, The Jewish and Ethnic Studies Project, Metropolis Booklet.

. 1980 Census Bureau figures.

. IFF 162, citing Racial/Ethnic Distribution of Public School Students and Staff in New York State 1974-75, Table 2, Exhibit 147, A 2400. The word “minority” in the cited exhibit refers to the total of “Black and Spanish Surnamed American”.

. Students without facility in English spoke a wide variety of foreign languages, including Spanish, Chinese, Italian, Greek, French, Vietnamese and Russian.

. Racial/Ethnic Distribution of Public School Students and Staff in New York State 1979-80, Table 2.

. Id.., Table 1.

. In San Antonio School Dist. v Rodriguez ( 411 US 1,11-12 ), the total enrollment in the Edgewood district was only 22,000 students. In Lau v Nichols ( 414 US 563, 572 ), the number of children involved of Chinese ancestry who did not understand English was 1,800 and Justice Blackmun concurred on the ground that “a very substantial group” was involved.

. Matter of Fay, 44 NY2d 137 ,144, app dsmd sub nom. Buck v Hunter, 439 US 1059 ; Matter of Lalli, 43 NY2d 65, 67 , affd sub nom. Lalli v Lalli, 439 US 259 ; Trimble v Gordon, 430 US 762, 766-767 ; Caban v Mohammed, 441 US 380, 392, n 13 .

. Cf. Kramer v Union School Dist., 395 US 621, 623, n 3 ; San Antonio School Dist. v Rodriguez, 411 US 1, 51, n 108 ; Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 119 .