Appendix — Board of Education v. Nyquist

Supreme Court brief1983

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Offies Supreme Court, U.S.

82-655 FILED

OCT 12 882

See

ens

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

>

BOARD OF EDUCATION, LEVITTOWN UNION FREE SCHOOL

DISTRICT, NASSAU COUNTY, ef al.,

Appellants,

—VvV.—

EWALD B. NYQUIST, COMMISSIONER OF EDUCATION

OF NEW YORK, ef al.,

Appellees.

ON APPEAL FROM THE NEW YORK COURT OF APPEALS

APPENDIX TO JURISDICTIONAL STATEMENT

DANIEL P LEVITT*

EDWARD H. ROSENTHAL

MIRIAM R. BEST

KRAME” LEVIN, NESSEN, KAMIN & SOLL

919 Third Avenue

New York, New York 10022

(212) 688-1100

Attorneys for Appellants

* Counsel of Record

APPENDIX TABLE OF CONTENTS

PAGE

Opinion and Order of the New York Court of Appeals,

Gy PD Sls SPE io e eee Al

Opinion of the Appellate Division, Second Department,

SR GU Gs CUED eee A35

Order of the Appellate Division, Second Department,

/ A89

Judgment of the Appellate Division, Second Depart-

ment, dated October 26, 19 ũ rMmtuiuu . 91

Findings of Fact of the Appellate Division, Second

Department, dated October 26, 198 11. A98

reer. ses eee A98

rene. ss eee e A160

rainer A236

Opinion of the Supreme Court, Nassau County, dated

.. eh A239

Judgment of the Supreme Court, Nassau County, dated

III A311

Memorandum of the Supreme Court, Nassau County,

rn. esse A317

Memorandum of the Supreme Court, Nassau County,

nnn. esse eee een A320

Notice of Appeal by Board of Education, Levittown

Union Free School District, Nassau County, et all A326

Notice of Appeal by Board of Education, City School

District of Rochester, New York, et al................ A329

ii

PAGE

Constitutional and Statutory Provisions Involved... ... A331

The Equal Protection Clause, U.S. CONST. Amend.

e esse ee A331

N.Y. Education Law § 3602 (McKinney 1981)....... A331

N.Y. Education Law § 3602 (McKinney 1981 Supp.) . A366

Al

Opinion and Order of the New York Court of Appeals,

dated June 23, 1982

Boarp or Epucation, Levittown UNION Free ScHOOL

District et al., Respondents-Appellants, and Boarp oF

Epucation, Crry Scuoo. District, RocHEsSTER et al.,

Intervenors-Respondents-Appellants, v EWALD B. Ny-

Wisr, as Commissioner of Education, et al., Appel-

lants-Respondents.

Argued May 10, 1982, decided June 23, 1982

SUMMARY

Cross APPEALS from an order of the Appellate Division of

the Supreme Court in the Second Judicial Department,

entered October 26, 1981, which modified, on the law and

the facts, and, as modified, affirmed so much of a judgment

of the Supreme Court (L. KN SIE Sairtu, J.; opn 94 Misc

2d 466), entered in Nassau County, as declared that the

State’s system for financing public elementary and second-

ary schools violates the equal protection clause and the

education article of the New York State Constitution (art I,

§ 11; art XI, § 1) as to plaintiffs and intervenor-plaintiffs,

and the equal protection clause of the Federal Constitution

(14th Amdt, § 1) as to intervenor-plaintiffs. The modifica-

tion consisted of (1) deleting so much of the judgment as

declared that the system cannot be justified by valid objec-

tives and that the actual operation thereof does not bear a

rational relationship to objectives for which it was

devised and substituting a declaration that the system

pe 5 impinges upon the important right of education

—— by section 1 of article XI of the New York

itution in the plaintiff and plaintiff-intervenor school

districts; that the system fails to further the asserted State

interest in preserving local control over education in these

districts, and that there are methods of financing public

school education which would further local control over

education with less intrusion upon the guaranteed right of

education, and that accordingly, the State’s public school

finance system violates the equal protection clause of the

New York Constitution (art I, § 11), (2) deleting the words

“and irrational” from so much of the judgment declaring

that the result of the State aid formula is “an arbitrary and

irrational deprivation of State aid”, and (3) deleting so

much thereof as declared the State's financing system to be

A2

unconstitutional under the Federal Constitution and sub-

stituting a declaration that the system is constitutional

under the Fourteenth Amendment to the United States

Constitution.

This declaratory judgment action challenging, the

method of financing the State's public schools was insti-

tuted in June, 1974, by the boards of education of 27 school

districts and 12 students of public schools located in some

of those districts. The intervenor-plaintiffs are the boards

of education, officials, resident taxpayers and students in

the Cities of New York, Buffalo, Rochester and Syracuse,

together with a ſederation of parent and parent-teacher

associations. The original plaintiffs, considered to be

“property poor” school districts, contend that the present

State system for financing public schools, as principally set

forth in sections 2022 and 3602 of the Education Law, by

which funds raised by locally imposed taxes are augmented

by allocations of State — in accordance with a variety

of formulas and grants, violates the equal protection

clauses of the State a and Federal Constitutions and the

education article of the State Constitution because the

system results in grossly disparate financial support in the

school districts of the State. The intervenors, although not

claiming to be disadvantaged in their ability to raise gross

revenue from local sources, also assert violations of the

same constitutional provisions as a result of circum-

stances, peculiar to cities, which result in special financial

burdens. Trial Term issued a judgment declaring that the

State’s public school finance system violated both the equal

protection clause (art I, § 11) and the education article (art

XI, §1) of the State Constitution and, as to the cities

represented by the intervenors, the equal protection clause

of the Federal Constitution as well. The Appellate Division

modified by rejecting the conclusion that the intervenors

had also established a violation of the Federal Constitu-

tion.

The Court of Appeals modified, and, in an opinion by

Judge Jones, directed that judgment be entered declaring

that the present statutory provisions for allocation of State

aid to local school districts for the maintenance and sup-

port of public elementary and secondary education are not

A3

violative of the equal protection clause of either the Fed-

eral or State Constitution, nor are they unconstitutional

under the education article of the State Constitution.

Board of Educ. v Nyquist, 83 AD2d 217, modified.

Constitutional Law — Equal Protection of Laws — Public School Financing

System

1. The existing provisions for State aid to finance public education in this State do not

violate the equa! protection clause contained in the Fourteenth Amendment of the

United States Constitution, notwithstanding disparities in per pupi! expenditures

among the State's schoo! districts, resulting largely from the differen es in the revenue

available for ed:cationa! purposes in consequence of unequa! rea! property tax bases or

unequal demands on local revenue Applying the rational basis standard of equa!

protection review, no impermissible discrimination against pupils in the less property

wealthy districts is found, there being s rational relationship to a legitimate State

purpose, here the permission and encouragement of participation in and control of public

schools at the loca! district level Nor does the present schoo! finance system discrim:-

nate against large city schoo! districts. since inequalities existing in cities are the

product of demographic, economic and ho tea factors intrinsic to the cities themselves.

and cannot be attributed to legislative action or inaction

Constitutional Law — Equal Protection of Laws — Public Schoo! Financing

System

2. The existing provisions for State aid to finance public education in this State do not

violate the equa! protection clause of the New York State Constitution ‘art I. $11).

notwithstanding disparities in per pupil expenditures among the State s schoo! districts.

resulting largely from the differences in the revenue available for educationa! purposes

ey ae ng Cate att ee ey tee

York State Constitution This article, requiring the Legislature to

provide for maintenance and support of system of free schools in order that an

i

!

i

that distncts choosing to provide opportunities beyond those

elect or be able to offer be foreclosed from doing so. or that loca!

— 2 — — —

and provided. be abolished

r

!

|

3

A4

Robert Abrams, Attorney-General (Amy Juviler, Shirley

Adelson Siegel, Clement H. Berne and Evelyn Tenenbaum

of counsel), for appellants-respondents. I. The educational

finance system, a reasonable, effective response to the

educational demands of children and school districts does

not violate equal protection of the laws. (Matter of Levy, 38

NY2d 653, app dsmd sub nom. Levy u City of New York, 429

US 805, 966; Montgomery v Daniels, 38 NY2d 41; Matter of

Van Berkel v Power, 16 NY2d 37; Nettleton Co. v Diamond,

27 NY2d 182, app dsmd sub nom. Reptile Prods. Assn. v

Diamond, 401 US 969; Matter of Taylor v Sise, 33 NY2d

357; Lincoln Bldg. Assn. v Barr, 1 NY2d 413, 355 US 12;

San Antonio School Dist. v Rodriguez, 411 US 1; Alevy v

Downstate Med. Center of State of N. F., 39 NY2d 326;

Dandridge v Williams, 397 US 471; McGowan uM

366 US 420.) II. The court below made a fundamenta error

in interpreting the education article of the State Constitu-

tion to mandate a very expensive education in which fewer

children fail minimum competency examinations and

which cannot be affected by a district’s limited local tax

base. (Donohue v Copiague Union Free School Dist., 47

NY2d 440; Judd uv Board of Educ., 278 NY 200; Matter of

Viemeister v White, 88 App Div 44, 179 NY 235; Matter of

Sperry Rand Corp. v Town of North Hempstead, 53 Misc 2d

970; People ex rel. Elkind v Rosenblum, 184 Misc 916, 269

App Div 859, 295 NY 929; Matter of College of City of N. V.

v Hylan, 205 App Div 372; Matter of New York City School

Bds. Assn. U Board of Educ., 39 NY2d 111.) III. The court

below erred in attempting to resolve social, politica! and

educational controversies for which there may not be solu-

tions, which cannot be resolved by reference to judicial

standards and which are within the exclusive power of the

people’s elected representatives. (Jones v Beame, 45 NY2d

402; James v Board of Educ., 42 NY2d 357; Donohue v

Copiague Union Free School Dist., 47 NY2d 440; Matter of

Catapano Co. v New York City Fin. Admin., 40 NY2d 1074;

Shapiro v City of New York, 32 NY2d 96; San Antonio

School Dist. v Rodriguez, 411 US 1; Lindsay v Wyman, 372

F Supp 1360, affd sub nom. Beame v Lavine, 419 US 806;

Baker v Carr, 369 US 186.)

AS

Daniel P. Levitt, Edward H. Rosenthal and Miriam R.

Best for respondents-appellants. I. The courts below cor-

rectly held that New York’s school finance scheme violates

the education article of the State Constitution. (Donohue v

Copiague Union Free School Dist., 47 NY2d 440; Judd v

Board of Educ., 278 NY 200, 712; Matter of Viemeister v

White, 88 App Div 44, 179 NY 235; People v Abrahams, 40

NY2d 277.) Il. The courts below correctly held that New

York’s school finance scheme violates the equal protection

clause of the State Constitution. (Matter of Levy, 38 NY2d

653, app dsmd sub nom. Levy u City of New York, 429 US

805; Shapiro v Thompson, 394 US 618; Loving v Virginia,

388 US 1; People ex rel. Wayburn v Schupf, 39 NY2d 682;

San Antonio School Dist. v Rodriguez, 411 US 1; Goss v

Lopez, 419 US 565; Brown v Board of Educ., 347 US 483;

Lombardi v Nyquist, 63 AD2d 1058; Bukovsan v Board of

Educ., 61 AD2d 685; Marston v Lewis, 410 US 679.) III.

Because New York’s school finance scheme does not ration-

ally pursue legitimate objectives, it violates the equal

protection clause of the Federal Constitution. IV. The

courts below correctly held that plaintiffs’ claims are justi-

ciable and that plaintiffs have standing. (People v Abra-

hams, 40 NY2d 277; Flushing Nat. Bank v Municipal

Assistance Corp. for City of N. F., 40 NY2d 731; Jones v

Beame, 45 2d 402; Donohue v Copiague Union Free

School Dist., 47 NY2d 440; James v Board of Educ., 42

NY2d 357; Orr v Orr, 440 US 268; Board of Educ. v Allen,

20 NY2d 109, 392 US 236.)

John Silard and Adam Kaufman for Rochester Board of

Education; Frederick A.O. Schwarz, Jr., New York City

Corporation Counsel (Doron Gopstein of counsel); David M.

Garber, Syracuse Corporation Counsel, and.Joseph P.

McNamara, Buffalo a Counsel, for intervenors-

respondents-appe Under the present State funding

system, the restricted school funding capacity of the cities,

like that of the property-poor districts, creates inequality

that violates the ts of city school children the

State Constitution. II. Constitutional guarantees are vio-

lated by the State aid formula’s disequalizing mismeasure-

ment of city districts’ school funding capacities and needs.

(Royster Guano Co. v Virginia, 253 US 412; Railway Ex-

A6

press v New York, 336 US 106; Reed u Reed, 404 US 71;

Weber v Aetna Cas. & Sur. Co., 406 US 164; James v

Strange, 407 US 128; New Jersey Welfare Rights Organiza-

tion v Cahill, 411 US 619; Viandis v Kline, 412 US 441;

United States Dept. of Agric. u Moreno, 413 US 528; United

States Dept. of Agric. v Murray, 413 US 508; Weinberger uv

Wiesenfeld, 420 US 636; Levy v Parker, 346 F Supp 897, 411

US 978.) III. Constitutional guarantees are violated by the

inferior public education resources provided by the State

school system to poverty children concentrated in the city

schools. (Harper u Virginia Bd. of Elections, 383 US 663;

Shapiro v Thompson, 394 US 618; Memorial Hosp. v Mari-

copa County, 415 US 250; Boddie v Connecticut, 401 US

371; Bullock v Carter, 405 US 134.) IV. Only judicial action

can secure significant and feasible public education equal-

ity. (Board of Educ. v Allen, 20 NY2d 109, 392 US 236;

Boryszewski u Brydges, 37 NY2d 361.)

Peter M. Fishbein, Michael D. Blechman, Daniel D. Cha-

zin and Michael Starr for 85 public school districts, amici

curiae. I. Whether New York’s system of school financing

violates the equal protection clause must be judged by the

rational basis test. (Matter of Levy, 38 NY2d 653, app dsmd

sub nom. Levy v City of New York, 429 US 805; Alevy

Downstate Med. Center of State of N. F., 39 NY2d 326;

Matter of Jesmer v Dundon, 29 NY2d 5, 404 US 953;

Massachusetts Bd. of Retirement v Murgia, 427 US 307;

Riley v County of Monroe, 43 NY2d 144; Montgomery v

Daniels, 38 NY2d 41; Matter of Quinton A., 49 NY2d 328;

Carey v Brown, 447 US 455; Matter of Griffiths, 413 US

717; Shapiro v Thompson, 394 US 618.) II. The heightened

scrutiny test requires only that legislation bear a fair and

substantial relationship to important interests. (Kirchberg

v Feenstra, 450 US 455; Califano v Westcott, 443 US 76;

Caban v Mohammed, 441 US 380; Lalli v Lalli, 439 US 259;

Nyquist v Mauclet, 432 US 1; Michael M. v Sonoma County

Superior Ct., 450 US 464; Mathews v Lucas, 427 US 4965.)

III. New York’s present education financing system meets

both the rational basis and the heigh scrutiny stan-

dards. (Lafayette Steel Corp. v City of Dearborn, 360 F

1127; Dandridge v Williams, 397 US 471.) IV. U ly

large aid for intervenor cities is not required by the equal

A7

protection clause. (Matter of Bernstein v Toia, 43 NY2d

437.) V. New York’s system of school financing does not

violate the education article of the State Constitution.

(Judd v Board of Educ., 278 NY 200; Donohue v Copiague

Union Free School Dist., 47 NY2d 440.)

Joseph T. McLaughlin, William M. Kelly, Dennis P. Orr

and Daniel Levin for the Public Education Association and

others, amici curiae. I. This case presents a justiciable

controversy. (Flushing Nat. Bank v Municipal Assistance

Corp. for City of N. V., 40 NY2d 731; Matter of Dudley v

Kerwick, 52 NY2d 542; Matter of Anderson v Krupsak, 40

NY 2d 397; Matter of Hellerstein v Assessor of Town of Islip,

37 NY2d 1; Powell v McCormack, 395 US 486; Matter of

Schneider v Rockefeller, 31 NY2d 420; Baker v Carr, 369

US 186; Jones v Beame, 45 NY2d 402.) II. The equal

protection clause of the New York Constitution requires

that the State’s school finance scheme not foreclose equal

public educational opportunitiés to similarly situated stu-

dents across school districts within the State. (Eisenstadt v

Baird, 405 US 438; Matter of Abrams v Bronstein, 33 NY2d

488; Marshall v United States, 414 US 417; People v Acme

Markets, 37 NY2d 326; Alevy v Downstate Med. Center of

State of N. V., 39 NY2d 326; Craig v Boren, 429 US 190;

Jimenez v Weinberger, 417 US 628; San Antonio School

Dist. v Rodriguez, 411 US 1; Brown v Board of Educ., 347

US 483.) III. The State’s school financing scheme forecloses

equal public educational opportunities to students located

in urban areas in violation of the State Constitution by

disregarding the four overburdens unique to urban school

districts. IV. The courts below ordered an appropriate

remedy. (Matter of Andresen v Rice, 277 NY 271; Flushing

Nat. Bank v Municipal Assistance Corp. for City of N. F.,

40 NY2d 731.) V. The State has advanced no convincing

ts for reversing the judgment below. (Lue v En-

— 44 NY2d 654; Matter of Ray A. M., 37 NY2d 619,

erenson v Town of New Castle, 38 NY2d 102; Matter of

Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359,

409 US 1003; Village of Belle Terre v Boraas, 416 US 1;

Cooper v Morin, 49 NY2d 69, cert den sub nom. Lombard v

Cooper, 446 US 984; Craig v Boren, 429 US 190; Alevy v

Downstate Med. Center of State of NV. V., 39 NY2d 326;

A8

Goldberg u Kelly, 397 US 254; Brown v Board of Educ., 347

US 483.)

Jack Greenberg, Steven L. Winter and Nancy A. Kilson

for the NAACP Legal Defense and Educational Fund, Inc.;

Jeffry H. Gallet for the New York Metropolitan Council of

the American Jewish Congress, and Kevin Kearney for the

Department of Education, Diocese of Brooklyn, amici cu-

riae. I. The school finance system deprives New York’s

minority children of equal protection of the laws. (Brown v

Board of Educ., 347 US 483; Hobson v Hansen, 269 F Supp

401, 393 US 801, affd sub nom. Smuck v Hobson, 408 F2d

175; Brown v Board of Educ., 386 F Supp 110; Matter of

Skipwith, 14 Misc 2d 325; Natonabah v Board of Educ., 355

F Supp 716; Matter of 303 West 42nd St. Corp. v Klein, 46

NY2d 686; Hart v Community School Bd. of Educ., 383 F

Supp 699, 512 F2d 37; Arthur v Nyquist, 573 F2d 134, cert

den sub nom. Manch u Arthur, 439 US 860; Columbus Bd.

of Educ. v Penick, 443 US 449; United States v Texas Educ.

Agency, 564 F2d 162, cert den sub nom. Austin Indepen-

dent School Dist. v United States, 443 US 915.) II. This

school finance system 1 — minority children of the

opportunities guaranteed by the education article. (Judd v

Board of Educ., 278 NY 200, 712; Columbus Bd. of Educ. v

Penick, 443 US 449; People ex rel. Cisco v School Bd. of

Borough of Queens, 161 NY 598; People ex rel. Board of

Educ. v Graves, 243 NY 204; Matter of Wiltwyck School for

Boys v Hill, 11 NY2d 182; Matter of Levy, 38 NY2d 653;

Donohue v Copiague Union Free School Dist., 47 NY2d

440.)

John F. Haggerty and Michael R. Lanzarone for Warren

M. Anderson, amicus curiae. I. The language and history of

the State equal protection clause and the decisions of this

court call for use of the rational basis test in deciding the

equal protection claim. (Dorsey v Stuyvesant Town Corp.,

299 NY 512; San Antonio School Dist. v Rodriguez, 411 US

1; Craig v Boren, 429 US 190; Reed v Reed, 404 US 71;

Montgomery v Daniels, 38 NY2d 41; Matter of Levy, 38

NY2d 653; Alevy v Downstate Med. Center of State of NV. V.,

39 NY2d 326.) II. There is no violation of the education

clause of the State Constitution. (McInnis v Shapiro, 293 F

Supp 327, affd sub nom. McInnis v Ogilvie, 394 US 322.)

A9

OPINION OF THE COURT

JONES, J.

{1-3} The present — — of statutory prescriptions for

State aid to local school districts for the maintenance and

support of public elementary and secondary education does

not violate the equal protection clause of either the Federal

or the State Constitution nor is it unconstitutional under

the education article of our State Constitution.

This declaratory judgment action challenging the State’s

provisions for financing our public schools is prosecuted by

two groups, representing different constituencies and mount-

ing attacks based on different predicates. The original

plaintiffs by which the action was instituted in 1974 are

the boards of education of 27 school districts located at

various sites in the State and 12 students of public schools

located in some of those districts. The intervenors, whose

participation in the action was agreed to by the original

parties, are the boards of education, officials, resident

taxpayers, and students of the Cities of New York, Buffalo,

Rochester and Syracuse, together with a federation of

parent and parent-teacher associations in the City of New

York. Defendants are the Commissioner of Education, the

University of the State of New York, the State Comptroller

and the Commissioner of Taxation and Finance of the

State of New York.’

* is the contention of the original plaintiffs (Who are

7 * -poor” school districts) that the system for financ-

ing Pony a schools presently in effect in this State (as

a set forth in Education Law, § 2022 [provision

local district financing]; and § 3602 [apportionment of

State aid)) by which funds raised by locally imposed taxes

are augmented by allocations of State moneys in accor-

dance with a variety of formulas and grants, violates the

equal protection clauses of both the State and the Federal

Constitutions and the education article of our State Consti-

1. Briefs amici curiae have been filed. In support of the contentions of the original

plaintiffs and the intervenors: a brief for the Public Education Association, the Educa-

tional Priorities Panel, the New York Civil Liberties Lnion, and the City Club of New

York, and a brief for the Council of Churches of the Citv Af New York, the Department of

Education of the Diocese of Brooklyn, the NAACP Legal Defense and Educational Fund,

Inc., and the New York Metropolitan Council of the American Jewish Congress. In

support of the position of defendants: a brief on behalf of 85 school districts within the

State of New York and a brief for the majority leader in the State Senate.

Al0

tution because that system results in grossly disparate

financial support (and thus grossly disparate educational

opportunities) in the school districts of the State. The

intervenors, representing interests in school districts lo-

cated in four of the largest cities in the State, also assert

violations of the same State and Federal constitutional

provisions as the result of circumstances said to be peculiar

to cities which they contend place them in a position

comparable to that of property-poor districts. Included in

these circumstances, they assert, are special financial bur-

dens borne by cities in four categories: (1) demands on

municipal budgets (from which local funds for education

are secured) for noneducation needs peculiar to cities (mu-

nicipal overburden”), (2) diminished purchasing power of

the municipal education dollar, (3) significantly greater

student absenteeism (with a resulting adverse effect both

because of added operational costs and because State aid is

largely allocated on the basis of average daily attendance),

and (4) larger concentrations in cities of pupils with special

educational needs, all four of which may be comprehended

within the term “metropolitan overburden”. These factors

are said to result in greatly disparate educational oppor-

tunities available to children in the cities’ public schools

when compared to the offerings of some of the school

districts not located within cities.

Succinctly stated, it is the gravamen of the complaint of

the original plaintiffs (and the findings of the courts below

provide factual support for their argument) that property-

rich districts have an ability to raise greater local tax

revenue enabling them to provide enriched educational

programs beyond the fiscal ability of the property-poor

districts. The intervenors argue that although they are not

disadvantaged in their ability to raise gross revenue from

local sources, in consequence of the economic factors of

metropolitan overburden the net effective economic ability

of the city districts falls well below that of noncity districts

(and the factual determinations made below support their

argument). Both then assert that State aid as presently

granted serves to perpetuate, and even to exacerbate, these

disparities.

All

Both courts through which this litigation has progressed

have granted declarations favcrable to the original plain-

tiffs and to the intervenors, although not on all the claims

asserted. Each court made careful and detailed factual

determinations with respect to the financing of the State’s

educational system, the operation of the various State aid

statutory provisions, and their practical impact on various

school districts, individually and comparatively. In the

case of the Appellate Division there was consideration not

only of the public school finance system as it existed at the

time the action was commenced in 1974 but also of the

effect of alterations accomplished by legislation up to and

through chapters 53 and 148 of the Laws of 1981. In

reaching our disposition we proceed on these factual deter-

minations made by both courts below as to the details of

the various school district programs and operations and

their comparison with one another, as well as the impact

on them of the present State aid programs.

After an extended nonjury trial which produced 23,000

pages of transcript and 400 exhibits, the Justice presiding

issued a judgment declaring that the State’s public school

finance system violates both the equal protection clause

(art I, §11) and the education article (art XI, § 1) of the

State Constitution and, as to the cities whose interests are

represented by the intervenors, the equal protection clause

(14th Amdt, § 1) of the Federal Constitution as well. The

Appellate Division, by a divided court, modified the judg-

ment of the trial court; while concurring in the determina-

tion that the provisions of the State Constitution had been

violated, the appellate court rejected the conclusion that

the intervenors had also established a violation of the

Federal Constitution. Justice Hopkins, concurring in part

and dissenting in part, rejected all claims of denial of equal

tection, but concluded that the present “maze of convo-

uted intricacies and provisos” of State aid fails to consti-

tute a “basic State-wide fiscal system for education” as

required in his view by the education article of the State

Constitution (83 AD2d 217, 267-268). We now modify the

order of the Appellate Division and direct that judgment be

entered declaring that the present admixture of statutory

provisions for State aid to local school districts, considered

Al2

in connection with the existing system for local financing,

is constitutional under the equal protection clause of the

Federal Constitution and under both the equal protection

clause and the education article of the State Constitution.

At the outset it is appropriate to comment briefly on the

context in which the legal issues before us arise. Although

New York State has long been acknowledged to be a leader

in its provision of public elementary and secondary educa-

tional facilities and services, and notwithstanding that its

yer pupil expenditures for such purposes each year are

very nearly the highest in the Nation,’ it must be recog-

nized that there are nonetheless significant inequalities in

the availability of financial support for local school dis-

tricts, ranging from minor discrepancies to major differ-

ences, resulting in significant unevenness in the educa-

tional opportunities offered.“ These disparities may prop-

erly be ascribed in some respects to the wide variances

between the property assessment bases on which local

district taxes are imposed. Similarly, it may be accepted

that the four major cities represented by the intervenors,

by reason of the factors encompassed in metropolitan over-

burden, are forced to provide instructional services and

facilities of a lesser quantity, variety, and quality than

those provided in some other school districts. No claim is

advanced in this case, however, by either the original

plaintiffs or the intervenors that the educational facilities

or services provided in the school districts that they repre-

sent fall below the State-wide minimum standard of educa-

tional quality and quantity fixed by the Board of Regents;

their attack is directed at the existing disparities in finan-

cial resources which lead to educational unevenness above

that minimum standard.

The determination of the amounts, sources, and objec-

tives of expenditures of public moneys for educational

purposes, especially at the State level, presents issues of

enormous practical and political complexity, and resolu-

2. For the year 1981-1982 there was expended $9 6 billion for public elementary and

education, $4 billion of State aid (the largest single item in the State budget)

and $5.6 billion raised by local taxes.

3. We are assuming that there is a significant correlation between amounts of

money expended and the quality and quantity of educational opportunity provided.

Al3

tion appropriately is largely left to the interplay of the

interests and forces directly involved and indirectly af-

fected, in the arenas of legislative and executive activity.

This is of the very essence of our governmental and politi-

cal polity. It would normally be inappropriate, therefore,

for the courts to intrude upon such decision-making (see

Matter of Board of Educ. v City of New York, 41 NY2d 535,

538; Matter of Anderson v Krupsak, 40 NY2d 397, 402-403;

New York Public Interest Research Group v Steingut, 40

NY2d 250, 257; cf. James v Board of Educ., 42 NY2d 357).

With full recognition and respect, however, for the distri-

bution of powers in educational matters among the legisla-

tive, executive and judicial branches, it is nevertheless the

responsibility of the courts to adjudicate contentions that

actions taken by the Legislature and the executive fail to

conform to the mandates of the Constitutions which con-

strain the activities of all three branches. That because of

limited capabilities and competences the courts might en-

counter great difficulty in fashioning and then enforcing

particularized remedies appropriate to repair unconstitu-

tional action on the part of the Legislature or the executive

is neither to be ignored on the one hand nor on the other to

dictate judicial abstention in every case. In the discharge of

our judicial responsibility in this case, recognizing the

existence of the very real disparities of financial support as

found by the lower courts, we nonetheless conclude that

such disparities do not establish that there has been a

violation of either Federal or State Constitution.‘

4 Although worded in terms of a challenge to the State's system for financing public

education including both financial support generated by real property taxation within

the local district and that received from che State in the form of State aid, we interpret

the assault to be primarily focused on asserted constitutional infirmities in the provi-

sions for State aid. No argument is advanced, for instance, that the Legislature should

realign loca! schoo! district boundaries to assure property-equa! districts or that sume

other revenue-generating means should be substituted for local district real property

taxation. Indeed, we have some doubt as to the jurisprudentiai prudence (assuming that

our court would have jurisdiction to do so) of issuing any blanket declaration of

unconstitutionality as to the entire system for financing public education, composed as it

is of a combination of local and State-wide frctors, economic and political — if for no

reason other than the great difficulty of fashic ing practical remedies or of umplement-

ing any such declaration. (Cf. Jones v Beame, 45 NY2d 402, 406, 408-409, Matter of

Abrams v New York City Tr. Auth., 39 NY2d 990, 992.) Challenges to the provisions

(n. cont'd)

Al4

II] Considering first the claim that the existing provi-

sions for State aid to finance public education in this State

violate the equal protection clause contained in the Four-

teenth Amendment of the United States Constitution, we

agree with the Appellate Division that this claim must fail.

The equal protection argument as developed by the origi-

nal plaintiffs is that, because what are termed property-

rich districts (those districts having a greater amount of

assessable real property per pupil) are able to generate,

through local taxation approved by taxpayers in those

districts, a larger amount of money per pupil for education

than is generated through the same process of local tax

approval by property-poor districts ‘resulting in a lower

per pupil expenditure in the latter districts), the financial

resources (and thus education programs and facilities) of

the two groups are significantly unequal. The intervenors

assert that, in the case of large cities, although the prop-

erty wealth per pupil is not low, inequality is nevertheless

occasioned by metropolitan overburden which likewise op-

erates to diminish the available financial resources (and

thus per pupil expenditures) in those localities. The ine-

qualities existing in property-poor and large city school

districts, both argue, are perpetuated and magnified rather

than remedied by the existing distribution of State funds

allocated to education — apportioned as such funds are in

accordance with a formula and variations thereof which

supplement local school tax revenue only to the extent of

assuring a minimum, uniform per pupil expenditure

throughout the State, together with an additional flat

grant for each pupil and “save harmless” or special aid

provisions which are designed to compensate for inflation-

ary increases in real property values and to ease the effect

of decreasing pupil population.

The essence of the original plaintiffs’ argument — that

disparities in per pupil expenditures, resulting largely

from differences in the value of assessable property per

made by the Legislature for sppropriation and allocation of State aid to local school

districts in the light of the present geographical boundaries of such districts fixed by

legislative action and of legislative authorization for local district real property taxation,

do present justiciable issues which cal! for judicial resolution.

Alõ

pupil among school districts, coupled with a failure by the

State to offset such disparities by provision of compensat-

ing aid funds, constitute an impermissible discrimination

against pupils in the less property-wealthy districts in

violation of the Fourteenth Amendment — was considered

and rejected by the Supreme Court of the United States in

San Antonio School Dist. v Rodriguez (411 US 1). Noting

that the subject of public school finance involves decisions

both with respect to the raising and disposition of public

revenues and of persistent, complex, and difficult questions

of educational policy areas appropriately within legislative

determination — the court held that rational basis, rather

than strict scrutiny, was the proper standard against

which to examine the Texas public school financing system

there under review (which was described by the court as

“comparable to the systems employed in virtually every

other State” [at pp 47-48]). Applying this standard, the

court found in the Texas system a rational relationship to a

legitimate State purpose — the permission and encourage-

ment of participation in and control of public schools at the

local district level (at p 49). As both courts below acknowl-

edged, the conclusions reached in that case dictate a simi-

lar result in the present litigation insofar as the original

plaintiffs’ claim of a Federal Constitution violation is con-

cerned.

With respect to the intervenors’ position in this litiga-

tion, not in haec verba put before or considerd by the

Supreme Court in San Antonio, that metropolitan overbur-

den is an unequalizing force which must be remedied by

compensating increases in State aid to city school districts,

a response is found in the opinion by Justice Hopkins at

the Appellate Division, which observes that the cited ine-

qualities existing in cities are the product of demographic,

economic, and political factors intrinsic to the cities them-

selves, and cannot be attributed to legislative action or

inaction. While unquestionably education faces competi-

tion in the contest for municipal dollars from other forms of

public service for which nonmunicipal school districts bear

no responsibility, municipal dollars flow into the cities’

treasuries from sources other than simply real property

taxes — sources similarly not available to nonmunicipal

Al6

school districts. The disbursement of the funds received

from real estate taxes and such other sources and the

decisions as to how they shall be allocated are decisions to

be made by municipal governmental bodies. In the words of

Justice Hopkins: “It is beyond the power of this court in

this litigation to determine whether the appropriations of

the intervenor-plaintiffs have been wisely directed or rea-

sonably applied, or whether their budgets are fairly di-

vided in terms of priority of need between the competing

services, such as police, fire, health, housing and transpor-

tation, and it is, equally, beyond the power of the court to

determine whether the resources of the intervenor-plain-

tiffs can otherwise be employed so that their educational

needs can be met.” (83 AD2d 217, 262.) Accordingly, we

conclude that, applying the rational basis test, the interve-

nors have failed to demonstrate denial of equal protection

under the Federal Constitution.

(2) We turn then to the claims of both original plaintiffs

and intervenors that, whatever may be determined with

respect to the equal protection clause of the Federal Con-

stitution, a violation of the comparable provision of our

State Constitution (art I, § 11) has been demonstrated —

the conclusion reached by both courts below. Our attention

must first be directed to identification of the standard

appropriate to the subject now before us (financial support

for public education) for examination as to whether there

has been a violation of our constitutional mandate of equal

protection (Montgomery v Daniels, 38 NY2d 41, 59). The

Appellate Division, declining to apply the measurement of

strict scrutiny that had been employed by the trial court

and under which the trial court had found the education

finance system invalid, concluded that the intermediate or

more careful scrutiny test described in Alevy v Downstate

Med. Center of State of N. F. (39 NY2d 326) was properly

to be employed — justifying this decision by its conclusion

that the right to education in this State “represents an

important constitutional interest”. (83 AD2d, at p 241.)

The choice of that intermediate standard, under which the

appellate court also found the system invalid, cannot be

Al?

sustained however, both for the previously recited reasons

articulated in the San Antonio case and in face of our

decision in Matter of Levy (38 NY2d 653, app dsmd sub

nom. Levy v City of New York, 429 US 805, reh den 429 US

966). In Levy we expressly held that rational basis was the

proper standard for review when the challenged State

action implicated the right to free, public education. Noth-

ing in the present litigation impels a departure from that

decision, made as it was with full recognition of the exis-

tence in our State Constitution of the education article (art

XI).

The circumstance that public education is unquestion-

ably high on the list of priorities of governmental concern

and responsibility, involving the expenditures of enormous

sums of State and local revenue, enlisting the most active

attention of our citizenry and of our Legislature, and

manifested by express articulation in our State Constitu-

tion, does not automatically entitle it to classification as a

“fundamental constitutional right” triggering a higher

standard of judicial review for purposes of equal protection

analysis. Thus, in Matter of Bernstein v Toia (43 NY2d

437), where the concern was public assistance to the needy

— clearly a matter of significant interest, provision for

which is similarly included in our State Constitution’ (art

XVII, § 1) — we employed the rational basis test as the

proper standard for review. The more careful scrutiny

— has been applied when the challenged State

action has resulted in intentional discrimination against a

6. The inclusion in our State Constitution of a declaration of the Legislature's

obligation to maintain and support an educational system is not to be accorded the same

significance for purposes of equa! protection analysis as would a counterpart reference to

education in the Federal Constitution The two documents are drafted from discretely

different constitutional perspectives. The Federa! Constitution is one of delegated

powers and specified authority; all powers not delegated to the United States or

prohibited to the States are reserved to the States or to the people (US Const, 10th

Amdt). Great significance accordingly ie properly attached to right guaranteed and

interests protected by express provision of the Federal Constitution By contrast,

because it is not required that our State Constitution contain a complete declaration of

all powers and authority of the State, the references which do appear touch on subjects

and concerns with less attention to any hierarchy of values. and the document conced-

edly contains references to matters which could as well have been left to statutory

articulation (eg. provision for superintendence and repair of canals, art XV. § 3.

scarcely to be classified a fundamental constitutional right on any view).

Als

class of persons grouped together by reason of personal

characteristics, the use of which called into question the

propriety of the particular classifications (People v Whid-

den, 51 NY2d 457 [gender]; Matter of Fay, 44 NY2d 137,

app dsmd sub nom. Buck v Hunter, 439 US 1059 [illegiti-

macy]; Matter of Lalli, 43 NY2d 65, affd sub nom. Lalli v

Lalli, 439 US 259 [illegitimacy]). The Alevy case itself was

one in which race was the factor which pervaded the

reverse discrimination alleged by the petitioner.

No classification of persons is present in the case now

before us, in which the claimed unequal treatment is

among school districts resulting from disparity as to reve-

nue available for educational purposes in consequence of

unequal tax bases or unequal demands on local revenue.

The claim is of discrimination between property-poor and

property-wealthy school districts. No authority is cited to

us, however, that discrimination between units of local

government calls for other than rational basis scrutiny.

Our inquiry is therefore only whether there has been

demonstrated the absence of a rational basis for the pres-

ent school financing system, premised as it is on local

taxation within individual school districts with supple-

mental State aid allocated in accordance with legislatively

approved formulas and plans. Addressing the submissions

of the original plaintiffs, our conclusion is that there has

not been such a showing, and that the justification offered

by the State — the preservation and promotion of local

control of education — is both a legitimate State interest

and one to which the present financing system is reason-

ably related.

Under the existing system the State is divided into more

than 700 local school districts, each of which varies from

the others and, from time to time, varies within itself, in

greater or lesser degree, as to number of pupils and value

of assessable real property, as well as with respect to

numerous other characteristics, including personal wealth

of its taxpayers. Outside the cities in the State (in which

school funding is a part of the total municipal fiscal pro-

cess), funds for the support of the education program of-

fered in the schools of a district are raised through the

imposition of local taxes following voter authorization

Al9

based on approval of a budget prepared and submitted by

an elected board of education, reflecting the instructional

program (within standards fixed by the State) perceived by

the local board of education to be responsive to the needs

and desires of the community. By way of assuring that a

basic education will be provided and that a uniform, mini-

mum expenditure per pupil will occur in each district, the

Legislature has long provided for payment of supplement-

ing State aid such that presently $1,885 per pupil (and, by

a weighting computation, larger amounts for particular

types of pupjls) is available for education in each district.

Throughout the State, voters, by their action on school

budgets, exercise a substantial control over the educa-

tional opportunities made available in their districts; to

the extent that an authorized budget requires expendi-

tures in excess of State aid, which will be funded by local

taxes, there is a direct correlation between the system of

local school financing and implementation of the desires of

the taxpayer.

It is the willingness of the taxpayers of many districts to

pay for and to provide enriched educational services and

facilities beyond what the basic per pupil expenditure

figures will permit that creates differentials in services

and facilities. Justification for a system which allows for

such willingness was recognized by the Supreme Court of

the United States in San Antonio School Dist. v Rodriguez

(411 US 1, 48, n 102, supra) quoting with approval a

statement which accompanied the State of Hawaii's 1968

amendment of its educational finance statute to permit

counties to collect funds locally and spend them on their

schools over and above the wholly State-funded program:

“Under existing law, counties are precluded from doing

anything in this area, even to spend their own funds if they

desire. This corrective legislation is urgently needed in

order to allow counties to go above and beyond the State’s

standards and provide educational facilities as good as the

people of the counties want and are willing to pay for.

Allowing local communities to go above and beyond estab-

lished minimums to provide for their people encourages

the best features of democratic government.” (Hawaii Sess

Laws, 1968, act 38, § 1.) Any legislative attempt to make

A20

uniform and undeviating the educational opportunities

offered by the several hundred local school districts —

whether by providing that revenue for local education

shall come exclusively from State sources to be distributed

on a uniform per pupil basis, by prohibiting expenditure by

local districts of any sums in excess of a legislatively fixed

per pupil expenditure, or by requiring every district to

match the per pupil expenditure of the highest spending

district by means of local taxation or by means of State aid

(surely an economically unrealistic hypothesis) — would

inevitably work the demise of the local control of education

available to students in individual districts. The amicus

brief filed on behalf of the 85 school districts puts it well:

“For all of the nearly two centuries that New York has had

public schools, it has utilized a statutory system whereby

citizens at the local level, acting as part of school district

units containing people with a community of interest and a

tradition of acting together to govern themselves, have

made the basic decisions on funding and operating their

own schools. Through the years, the people of this State

have remained true to the concept that the maximum

support of the public schools and the most informed, intel-

ligent and responsive decision-making as to the financing

and operation of those schools is generated by giving

citizens direct and meaningful control over the schools that

their children attend.”

The State-wide $360-per-pupil flat grant provided by

State aid legislation is immune from attack under tne

equal protection clause, for on its face there is no irequal-

ity in this per pupil distribution of State aid which is

allocated to all school districts without differentiation. Nor

does the fact that the “save harmless” or special aid grants

accrue to the benefit of only those districts which stand to

suffer identified harm by reason of changing property

values or of diminishing pupil registration serve to invali-

date the school financing system. In addition to the fact

that only a minimal amount of State aid is distributed

under this category, we cannot say that there is no rational

basis for the Legislature’s selection of districts subject to

these impacts as those for whom alleviating relief is appro-

priate and for its provision for such relief so long as the

A2

relief is uniformly available to school districts falling

within the classifications.

As to the intervenors, their contentions that they are

denied equal protection under the State Constitution must

be rejected for the same reasons that their comparable

claims under the Federal Constitution are rejected (supra,

at pp 41-42).

Finally, we consider the claim, upheld by all the Judges

below, that the present school financing system violates

the education article (art XI, § 1) of our State Constitution.

It is there required that “(t]he legislature shall provide for

the maintenance and support of a system of free common

schools, wherein all the children of this state may be

educated.”

[3) It is significant that this constitutional language —

adopted in 1894 at a time when there were more than

11,000 local school districts in the State, with varying

amounts of property wealth offering disparate educational

opportunities — makes no reference to any requirement

that the education to be made available be equal or sub-

stantially equivalent in every district. Nor is there any

provision either that districts choosing to provide oppor-

tunities beyond those that other districts might elect or be

able to offer be foreclosed from doing so, or that local

control of education, to the extent that a more extensive

program were locally desired and provided, be abolished.

What appears to have been contemplated when the educa-

tion article was adopted at the 1894 Constitutional Con-

vention was a State-wide system assuring minimal accept-

able facilities and ser ices in contrast to the unsystema-

tized delivery of instruction then in existence within the

State. Nothing in the contemporaneous documentary evi-

dence compels the conclusion that what was intended was

a system assuring that all educational facilities and ser-

vices would be equal throughout the State. The enactment

4 (1894 NY Constitutional Convention Documents, Doc No. 62.) Reports by State

School Superintendents and Messages by Governors to the Legislature before and after

the Constitutional Convention of 1894 with recommendations relative to legislative

— with sexpert to the Gietve ciumtiens) qqutem, while ietiemstive, an

e (n. cont’

A22

mandated only that the Legislature provide for mainte-

nance and support of a system of free schools in order that

an education might be available to all the State’s children.’

There is, of course, a system of free schools in the State of

New York. The Legislature has made prescriptions (or in

some instances provided means by which prescriptions

may be made) with reference to the minimum number of

days of school attendance, required courses, textbooks,

qualifications of teachers and of certain nonteaching per-

sonnel, pupil transportation, and other matters. If what is

made available by this system (which is what is to be

maintained and supported) may properly be said to consti-

tute an education, the constitutional mandate is satisfied.

Interpreting the term education, as we do, to connote a

sound basic education, we have no difficulty in determin-

ing that the constitutional requirement is being met in this

State, in which it is said without contradiction that the

average per pupil expenditure exceeds that in all other

States but two. There can be no dispute that New York has

long been regarded as a leader in free public education.

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 (reflective of and responsive as it is to the

public will), we would be reluctant to override those deci-

sions by mandating ar even higher priority for education

in the absence, possibly, of gross and glaring inadequacy —

nevertheless irrelevant to an interpretation of the language of the constitutional

enactment eg. 1877 NY Assem Doc No. 11; 1889 NY Assem Doc No. 7; 1894 NY Assem

Doc No. 42; 1895 NY Assem Doc No. 34; 1897 NY Assem Doc No. 71; 1898 NY Assem

Doc No. 64; 5 Lincoln, Messages from the Governors, p 852; 9 Lincoln, pp 15-16, 549).

What was then, and what over the years since, has been urged on the Legislature as

sound educational policy is to be clearly distinguished from the command laid on the

Legislature by the Constitution.

7. We observe that in the constitutional prescription the connotation of “system” is

attached to education — “a system-of free common schools” — not to maintenance and

support. Thus, once it is concluded that there is an educational system in New York

State which comports with the constitutional requirement, it is immatertal that the

Legislature in its wisdom has seen fit to provide financial support under complex

formulas with a variety of components, even were it to be concluded that the maze of

financial support measures was not entitled itself to be characterized as a “system”.

A23

something not shown to exist in consequence of the present

school financing system.“ N

For the reasons stated.“ the order of the Appellate Divi-

sion should be modified, without costs, to direct thet the

judgment of Supreme Court be modified by substituting for

8. Decisions in other jurisdictions upholding existing State schoo! financing stem

against claims of violation of equa! protection clauses or education provisions of State

Constitutions or both include the following ‘the educational requirement of the State

Constitution, when considered. is quoted with the citation! Lujan C, State Bd

of Educ.‘ P2d . — Col decided May 24, 1982! a thorough and uniform system of

free schools” |); McDaniel v Thomas (248 Ga 642 an adequate education for the citizen-

of Georgia . Board of Educ. « Walter (58 Ohio St 2d 368, cert den 444 US 1015 |"a

thorough and efficient system of common schools Olsen t State ex rel Johnson (276

Ore 9 |“a uniform. and general system of Common schools” |), Thompson Engelking (9

Idaho 793 |“a genere «aiform and thorough system of public. free common schools” |).

State ex rel. Woodahi v Straub 520 Pad 776 Mont Shofstall t Hollins (110 Ariz 58

genera! and uniform public schoo! system

Among those cases sustaining one or both of such challenges are Washakie County

School Dist. No. 1 v Herschier (606 P2d 310 |Wyo} idenia! of equa! protection . Horton «

Meshill (172 Conn 615 (denial of equal protection and violation of constitutional article.

“free public elementary and secondary schools” , Serrano v Priest (5 Cal 3d 584 |denial

of equal protection . Robinson v Cahill (62 NJ 473, cert den sub nom Dickey t Robinson.

414 US 976 [dental of equal protection and violation of constitutional! article “a

thorough and efficient system of free public schools” |)

®. The dissent illustrates the very great. and perhaps understandable. temptation to

yield to a result-onented resolution of this litigation. Universal acceptance of the central

role of education in our society today is unquestioned

The dissenter, however, misapprehends the issue before us on this appeal. It is not

whether education is of primary rank in our heirarchy of societal values. al! recognize

and support the principle that it is. It is not whether there are great and disabling and

handicapping disparities in educational opportunities across our State. centered

particularly in our metropolitan areas; many recognize and decry this state of affairs

The ultimate issue before us 1s a disciplined perception of the proper role of the court» in

the resolution of our States educational problems. and to that end more specifically.

judicial discernment of the reach of the mandates of our State Constitution in this

regard. The expostulation of the dissenter, and the urgings of those who would alleviate

the existing disparities of educational opportunity. are properly to be addressed to the

Legislature for its consideration and weighing in the discharge of its obligation to

provide for the maintenance and support of our State's educational system. Primary

responsibility for the provision of fair and equitable educational! opportunity within the

financial capabilities of our State s taxpayers unquestionably rests with that branch of

our government

As we wrote in Montgomery v Daniels (38 NY2d 41. 53, supra’ “It is not our office to

rejoice or to lament. A fair regard for the basic polity of separation of powers dictates

judicial respect for the proper role of the legislative branch. and pride in the uniquely

and essentially neutral role of the judicial branch That judicial role is both a privilege

and a limitation.” It would neither serve the purposes of orderly government nor honor

the role of the judiciary to lay aside standards of judicial review recently held appropri.

ate (in decisions in which the dissenter joined) because in this instance corrective

measures may. in the view of many, be much needed with respect to the provision of

financial support for our educational! system.

A24

the declarations that the State’s school financing system

violates the equal protection clause and the education

article of the State Constitution a declaration that the

present statutory provisions for allocation of State aid to

local school districts for the maintenance and support of

elementary and secondary public education are not viola-

tive of either Federal or State Constitution.

FuCHSBERG, J. (dissenting). I believe the sad record of

this case demonstrates that in material manner the public

school system of New York State, to which falls responsi-

bility for the education of well over three million children,

does not rise to the level dictated by a realistic reading of

the State constitutional mandate for the “maintenance and

support of a system of free common schoois, wherein all the

children of this state may be educated” (NY Const, art XI,

1 [emphasis added)).

Justice L. Kincs.ey Situ of the State Supreme Court,

after presiding over the 122-day trial at which this matter

was exhaustively explored, found that it failed to do so (94

Misc 2d 466). Justice Leon D. Lazer, writing on this point

in a painstaking and penetrating opinion for the Appellate

Division, came to the same conclusion (83 AD2d 217, 219).

Concurring in this view, Justices James D. Hopkins and

Moses M. WEINSTEIN each emphasized his position by

writing separately to this effect. Nor did the recent Report

and Recommendations of the distinguished official New

York State Special Task Force on Equity and Excellence in

Education, whose independent inquiry was precipitated by

the findings in this case, arrive at a different appraisal.

And Governow Hugh L. Carey’s Elementary and Secondary

School Message, delivered to the current session of the

Legislature on February 17, 1982, was in the same vein.

In this connection, it is worthy of special note, in a world

where life and law must not live in separate compart-

ments, that the Governor, responding to the decrees of the

afore-mentioned courts, and quoting the Task Force’s

statement that “in the education of children, the demands

of morality are as compelling as the commands of legality”,

recommended a five-year program to “make equal educa-

tion opportunity a reality”.

A25

But the majority of this court, though compelled to

accept the now affirmed “careful and detailed factual de-

terminations *** made by both courts below”, insists

that “the constitutional requirement is being met in this

State”. Doing so, it also rejects the lower courts’ conclusion

that the disparities and discriminations produced by our

property-oriented educational finance system offends the

equal protection guaranteed by our State Constitution (art

I, § 11).' For the reasons which follow, my disagreement is

on all counts.

At the very outset of my analysis, I put at issue the

majority’s assertion (majority opn, at p 43, n 5) that the

inclusion of the education article in our State Constitution,

far from carrying the weight of a like insertion in the

Federal Constitution, where it has no counterpart, may

have little more significance than would a mere “statutory

articulation”. I would think that a far more likely theory,

consistent with our Federal form of Government, is that

primary concern for education was to be that of the States

rather than of the Union and that the article’s placement

in the State Constitution was all the more crucial in the

context of the pluralistic political process of which the

Tenth Amendment speaks (US Const, 10th Amdt).

In any meaningful ordering of priorities, it is in the

impact education makes on the minds, characters and

capabilities of our young citizens that we must find the

answer to many seemingly insoluble societal problems. In

the long run, nothing may be more important — and

therefore more fundamental — to the future of our country.

Can it be gainsaid that, without education there is no exit

from the ghetto, no solution to unemployment, no cutting

down on crime, no dissipation of intergroup tension, no

mastery of the age of the computer? Horace Mann put it

pragmatically that education is not only “the great equal-

izer of men”, but, by alleviating poverty and its societal

costs, more than pays for itself. So, too, only this past week,

the Supreme Court of the United States reminded us that

1. Justice Smrrn held that he equal protection clauses of both the Federal and State

Constitutions were implicated as to the intervenor cities. The Appellate Division.

however, for its equal protection rationale, relied on the State Constitution alone

A26

it had recognized the public school “as the primary vehicle

for transmitting the values on which our society rests”

(Plyler v Doe, — US — [NY Times, June 16, 1982).

Even more pointed is how the sponsors of the education

article perceived it. The spokesman for the unanimous

Education Committee of the Constitutional Convention

which immediately preceded the one at which the article

was adopted, reported it in these words: “If there is any

thing that should be constitutionalized because of its great

importance, it is the all-important, overriding interest of

education. Sir, I regard it as being paramount to every

other interest in this State. I regard this article as being

more important to the people of the State, tc every man,

woman and child in the State, than any other article that

has been under consideration in this Convention” (1867-

1868 NY Constitutional Convention, 4 Proceedings & De-

bates, p 2856).?

Though an unrelated political controversy foreclosed any

amendment of the State Constitution that year, when it

next was amended, in 1894, the article as we know it today

was adopted on a report which apparently had not re-

treated a bit from the position that “[t]here seems to be no

principle upon which the people of this commonwealth are

so united and agreed as this, that the first great duty of the

State is to protect and foster its educational interests”

(1894 NY Constitutional Convention, Doc No. 62, p 3). The

report went on to note (at p 4), “that within the last half

century of constitutional revision no other State of the

Union has considered it superfluous or unwise to make

such an affirmation in its fundamental law” and that the

article “requires not simply schools, but a system; not

merely that they shall be common, but free, and not only

that they shall be numerous, but that they shall be suffi-

cient in number, so that all the children of the State may,

unless otherwise provided for, receive in them their educa-

tion. No desire to confine the new Constitution to the

2. Then Governor Fenton too told the delegates, “Our people have acted upon the

theory that the extension to every class and condition of society, of the means of early

education, and facilities for the acquisition of knowledge in after life, contributes to the

prevention of crime, the preservation of the social order, the security and stability of the

government, and the thrift and prosperity of all who are engaged in the various

departments of industry”.

A27

narrowest possible limits of space should prevent the ado

tion of an enactment declaring in the strongest possible

terms the interest of the State in its common schools”.’

It is in i uxtaposition to this contemporary commentary

by the fathers of our education article, which, revealingly,

came to be known as “the children’s Bill of Rights” (2

Lincoln, Constitutional History of New York, p 206), that a

sampling of the facts regarding the actual impact of the

system as it now exists should be examined. For this

purpose, we may well quote from the Appellate Division's

excellent synopses, first, as to the four intervenor cities

(Syracuse, Rochester, Buffalo and New York City) and,

second, as to the many individual districts who initiated

this suit.

The plight of the cities, found to be attributable to the

inexorable drain of a municipal overburden‘ left unreme-

died by a State aid formula tied to realty resources, is at

once seen in the findings that they:

“spent 28% of their tax revenues on education while

jurisdictions outside the cities spent 45% land that

the] huge concentration of poverty stricken gave New York

City 47% of the State’s pupils with special educational

needs, although it had only 31% of the total public school

population and received only 26% of the State’s education

rating aid. [Trendwise], [bly 1989-1981 New

York City’s percentage of the State's * needs pupils

had risen to 51% as against 33% of the public school

enrollment and 29% of education operating aid.

* * *

3. 1 clause, more matter-of-factly, but still tracking this more amplified

. reads: “The legislature shall provide for the maintenance and support of a

of free common schools, wherein all the children of this state may be educated”

Const, art XI, § 1).

4. Municipal overburden is a condition in which “ ‘[s}ome areas, particularly urban

areas, have exceptionally non-educational expenses * * [so that) revenues raised

by property taxes which nt otherwise be used for education, must be diverted to non-

educational purposes (R v Cahill, 69 NJ 449, 466, n 5). In the present case, the

cities suffer from “high concentrations of the poor and elderly, large numbers of public

assistance and public health recipients, unemployment and low educational attain-

of infrastructure, ——— 4 — 2 — 1 — in

connection with city employees * * *. The severity of the is illuminated by the

fact that, with 43% of the States population. York City had 70% of the State's

n cont'd:

A28

[Furthermore], “[t]he State’s reliance on attendance

rather than enrollment figures results in a double finan-

cial penalty to the cities because of their high rates of

absenteeism. *** Because the high absentee rate is a

direct consequence of poverty and underlying social condi-

tions, its effects are inexorable and its financial effects

cannot be alleviated by employment of additional atten-

dance officers.

“The significantly higher proportion of physically, men-

tally and emotionally handicapped and learning impaired

pupils resident in the cities and the extra personnel re-

quired to administer necessary programs compel the ex-

penditure of greater sums to educate them. While the State

aid formula provides additional weightings for handi-

capped students, the computation is flawed by a failure to.

account for municipal overburden, reduced purchasing

power of city educational dollars, and high absentee rates.

“Reduced aid to the cities also impairs their abilities to

instruct students who speak little or no English, although

such programs are required under Federal mandate.

[Also] the cities have the highest concentration of occupa-

tional education students ***. Because of their large

numbers and the greater expense of the programs offered,

city school districts are unable to accommodate all stu-

dents requesting occupational education.

* * *

(Indicative of both inferiority and inequality], “results of

national, State and local achievement tests demonstrate

that unconscionable numbers of children fail to acquire

basic educational skills. In Rochester, standardized tests

given in 1975 revealed that 45% of the secondary school

students were ‘educationally disadvantaged’ — that is, not

performing at grade level and at least two years or more

public assistance recipients, who constituted 12 of its residents as compared to 3. 6%

in the rest of the State. The city had 67% of the State's Medicaid claimants and spent $51

per capita in contrast to $15 in the rest of the State” (83 AD2d, at pp 229-230). Lronically,

though intended to redress the rural and property poor gap, the simplistically conceived

“equalization” formulae are the cause of a perverse disequalization effect on education in

the presumably property rich cities.

A29

below level in reading — as were 58% of those students in

mathematics; 16% of Rochester’s twelfth grade students

read fifth grade level or below. In a 1976 New York City

test, 12% of the ninth grade students were found to read at

fourth grade level or below. *** These percentages

translate into many thousands of high school children,

some of whom are totally illiterate while others can read

the words without accompanying comprehension and still

others cannot apply the meager information they can ob-

tain to problems.” (83 AD2d, at pp 229-232).

The Trial Judge’s summary is apt: “When the cities

concentrate resources on pupils with special needs, other

pupils, including those who are in fact disadvantaged but

not reached by special programs, are subjected to educa-

tional deprivation *** Many pupils attend classes in

buildings which were shown tc be in need of repairs and

lacking in facilities for counseling, study or recreation.

Pupils attending schools in the large cities were shown to

be provided with less physica! security in their schools; less

transportation; restricted sports and extracurricular activ-

ity; inadequate library and health services and diminished

offerings in art and music. In summary, the failure to

provide State aid on an equitable basis deprived the chil-

dren in the large city districts of an equal education

opportunity” (94 Misc 2d, at pp 518-519).

Now, as to the nonintervening plaintiffs, while their

problems may not be compounded by municipal overbur-

den, they suffer from a qualitatively, if not, quantitatively

related malaise produced by a daunting and difficult fi-

nance system so onerous in its effect on districts poor in

realty wealth (see 83 AD2d 217, esp at pp 223-226) and so

complex in its application that Justice James D. Hopkins,

concurring in the majority's finding that the State is vio-

lating the State Constitution’s education article, felt called

upon to complain that “the design of a uniform and harmo-

nious system conceived by its nineteenth century authors

had been frustrated and distorted” into “a veritable jungle

of labyrinthine incongruity”, “an Ossa of confusion piled on

a Pelion of disorder”. (83 AD2d, at p 269.) In everyday

terms, the net result is illuminated again by the Appellate

Division’s recitation, this time that:

A30

“The disparities in operating expenditures per pupil in

1974-1975 ranged from $4,215 for the richest district to

$936 for the poorest, a ratio of 4.5 to 1 * * * Three districts

in Suffolk spent more than $6,300 and four spent less than

$2,300 while the ratios between some districts in Nassau

and Albany Counties reached 2 to 1. The direct connection

between wealth and operating expenses and total expenses

is revealed by further statistics, a few of which bear men-

tion here.

* * *

“The consequences of [such] disparities are dramatic.

*** To achieve expenditure levels to provide better edu-

cational output, low-wealth districts must tax themselves

at relatively high rates, as a result of which they encounter

difficulties in obtaining school budget approvals, imposi-

tion of austerity budgets which limit transportation, sup-

plies, library and textbook purchases, and, ultimately,

rises in rates of mortgage foreclosure and community in-

stability. [See, e.g., Matter of Onteora Cent. School Dist.

(Onteora Non-Teaching Employees Assn.), 56 NY2d 769.)

* * *

Low- wealth districts are unable to reduce class size and

their children lose the resulting individual attention which

is particularly important for both the disadvantaged and

the gifted. Such districts are compelled to hire fewer non-

teaching personnel as guidance counselors, psychologists

and therapists and they cannot adequately provide the

special attention requisite for students with severe speech

and hearing impediments. Poor districts must ration their

speech therapists and other ancillary services to such a

degree that long waiting lists exist for these services. Also

constrained by insufficient realty wealth are the offer of

the number and variety of advanced placement programs

(which encourage children to continue in school and pro-

vide better preparation for college) * * * Finally, the low-

wealth districts experience chronic shortages of equipment

and supplies.

* * *

A3l

“Fund shortages also affect district ability to engage

teaching and administrative personnel. At the

time of trial, 9 of Brentwood’s 12 elementary schools were

without assistant — — and the district was unable to

follow the Education Department's recommendation for

reducing class size in certain courses because it could not

afford to hire the requisite additional staff. In Roosevelt,

there were no funds for substitute teachers and 23 profes-

sional staff members had to be terminated in 1975-1976 to

eliminate a budget deficit.” (83 AD2d, at pp 227-229.)

Surely, if it were meet to substitute the minimized

reading the majority would give the education article for

the hope and promise with which the constitutional dele-

gates wrote it, it could not be said as a matter of law that

the picture painted by this proof of disparities and discrim-

inations complied with even the undefined “minimal ac-

ceptable facilities and services” or the broadly stated

“sound basic education” to which it would be thus reduced.

The fact is, of course, that in this past century as high

school and college statistics show, the acceptable leve! of

education in our country has risen, not fallen.

Responsively, the constitutional demands of our State’s

education article, must be deemed to have kept pace. For,

while, as a practical matter, the Federal Constitution may

be said to fix a floor for the rights of our people, the ceiling

may be set by each State’s own constitutional charter (see,

rally, my dissent in Matter of Esler v Walters, 56 NY 2d

306 315). And, as great expounders of constitutional law,

from MARSHALL to HoLmes, have always made clear, such a

document’s permanence rests on its adaptability to chang-

ing events (Jackson, Struggle for Judicial Supremacy, p

174).

This brings me to the unequal protection phase of this

case for, as I see it, whether taken separately or in their

combined effect, the guarantees of the two converging

constitutional provisions here at stake preclude the une-

qual and inadequate public schooling which children in

property poor or fiscally overburdened areas of this State

must endure.

6. AsJudge Jon. O Newman of the United States Court of Appeals recent!y put it at

a symposium bearing the descriptive title, “The Rediscovery of the ( onnecticut Consti-

n contd:

A32

On this score, suffice it to say that I am in agreement

with the Appellate Division’s determination that, for rea-

sons included among those on which I have already

touched, the standard of scrutiny to be brought to bear on

this case was the intermediate one heretofore recognized in

this State (see Matter of Fay, 44 NY2d 137, app demd sub

nom. Buck v Hunter, 439 US 1059; Matter of Lalli, 43 NY2d

65, affd sub nom. Lalli uv Lalli, 439 US 259; Alevy v

Downstate Med. Center of State of N. F., 39 NY2d 326;

Gunther, Supreme Court 1971 Term — Forward: In Search

of Evolving Doctrine on a Changing Court: A Model for a

Newer Equal Protection, 86 Harv L Rev 1, 28, 35, 44-47).°

It then proceeded along an analytical path’ which in-

cluded recognition (1) that equality of educational opportu-

nity is an important State constitutional interest in New

York (see, also, Plyler v Doe, _ US —, supra; Brown v

Board of Educ., 347 US 483, 489), (2) that the extensive

invidious disparities in the availability of this opportunity

are born of the classifications based on property or fiscal

wealth of the districts in which the affected children reside,

(3) that preservation of local controls, the consideration the

State ‘and now the majority here) offers for imposing the

statutory plan, is so confined by what a limited local tax

base will permit that its vaunted furtherance of local

independence is illusory rather than real, and (4) that by

tution Broadening Protections for Individual Rights”, “Within the grand design of the

old federalism’ there is room for a little chemistry to be practiced by state court judges

construing the fundamental legal document of their state — the state constitution.

Perhaps the discipline is more akin to alchemy, for it seems very likely that the leaden

language of many state constitutional provisions is waiting to be turned into the pure

gold of vital protections of individual rights

6. Mutter of Levy (38 NY2d 653), in which I joined, is to be distinguished from the

present case. Levy involved no more than a dispute of very limited dimension in the

course of which there was raised an issue over the rationality of a provision for “relieving

the parents of blind and deaf children from any financial responsibility in connection

with their children’s education while at the same time requiring parents whose children

are otherwise handicapped to contribute to the maintenance component of educational

expenses” ‘supra, ut p 658). Largely on historical grounds. in the main because the plight

ot the blind and deaf became a societal concern before those otherwise handicapped, the

court found a rational basis for the differentiation and declined to require a broadening

of the maintenance program In sharp contrast. what plaintiffs here — including a mass

of disadvantaged children — primarily seek is nondiscriminatory distribution of the

moneys the State already makes available. As already indicated, that it is most

appropriate. and indeed urgent, for the courts to grant this relief by enforcing our

( onstitution has been the view of every New York Judge who has had occasion to pass on

this case up to this point.

A33

no means had the State shown that the local input it could

achieve could nct be created by less intrusive means. On

these bases, it was decided, correctly I say, that the inter-

— standard was an effective bar to the statutory

me. '

Finally, two related equal protection questions may be

worthy of comment.

The first of these is that it is not to be assumed that the

equal protection clause of the Federal Constitution was not

also impinged. Although the Appellate Division, as an

intermediate tribunal, thought it best to avoid the ques-

tion, San Antonio School Dist. v Rodriguez (411 US 1) may

leave more leeway than some believe. In Rodriguez, \nere

was no claim that the statute malapportioned State school

aid by mismeasuring the funding capacities and needs of

city districts. Rather, the Supreme Court there expressly

stated its concern lest the problems of the “overburdened

core- city school districts” in that case be exacerbated

rather than eased by recognition of the theory pressed by

their plaintiffs.

The second bears on the analysis provisionally suggested

in Justice WEINSTEIN’s concurring opinion — that strict

scrutiny may have been an appropriate test. This formula-

tion was premised largely on the undisputed fact that the

existing education ».id formulae have an adverse effect, not

only on pupils from impoverished families, but also on a

large percentage of the nearly 750,000 “minority” students

(black, Hispanic, American Indian, Asian and others).

About 110,000 are unable to participate in school effec-

tively in English and many are illiterate in their native

tongues as well.

Raised, therefore, was the spectre of an issue of discrimi-

nation involving the approximately 83% of the “minority”

people who reside in the intervenor cities. Its occasion

would be the inability of these cities, left bereft of the

means to do so, to cope with the social and educational

breakdown affecting a large group identifiable by race,

country of origin or alienage. This issue, of course, is made

far less tenuous, if that it ever was, by last week’s Federal

equal protection decision in Plyler v Doe (supra). Be that as

A34

it may, however, since Justice WEINSTEIN decided to adopt

the alternative of joining in the majority’s rationale, which

in this case would have achieved the same result, suffice it

unto the day that the question needs no answer now.

In fine, poor children, no less than rich, and the Nation of

which both are a part, are entitled to an education that

prepares today’s students to face the world of today and

tomorrow. Those who took and tolled the testimony tell us

that, by any standard that counts, for the multitudinous

many no such educational opportunity truly exists. Under-

standably, then, as the Governor put it to the Legislature

just the other month, “Financial inequalities in education

are more pronounced than at any time in the State’s

history” and “There can be no disagreement that New

Vork's school finance program must be reformed”. Be-

cause, nevertheless, as the record reveals, our present

method of financing education grossly distorts our ability

to do so, and because I agree with the Appellate Division

that it is constitutionally defective, my vote is to uphold

the order of that court.

Chief Judge Cooke and Judges JASEN, GABRIELLI,

WACHTLER and MEYER concur with Judge Jones; Judge

FUCHSBERG dissents and votes to affirm in a separate

opinion.

Order modified, without costs, in accordance with the

opinion herein and, as so modified, affirmed.

A35

Opinion of the Appellate Division, Second Departmeat,

dated October 26, 1981

Boarp oF EpuCATION, LEVITTOWN UNION FREE SCHOOL

DistTRIcT et al., Respondents-Appellants, and BoARD oF

Epucation, City School District, ROCHESTER et al.,

Intervenors-Respondents, v EWALD B. Nyquist, as

—— of Education, et al., Appellants-Respon-

ents.

Second Department, October 26, 1981

SUMMARY

ApPEAL from so much of a judgment of the Supreme

Court (L. Kincs.ey Situ, q.), entered January 3, 1979 in

Nassau County, as declared that the State’s system for

financing public elementary and secondary schools vio-

lates the equal protection clause and the education article

of the New York Constitution (art I, § 11; art XI, SI) as to

plaintiffs and intervenor-plaintiffs, and the equal protec-

tion clause of the Federal Constitution (14th Amdt, § 1) as

to intervenor-plaintiffs, and Cross APPEAL from so much of

the judgment as failed to declare that the challenged

legislation violates the Federal equal protection clause as

to plaintiffs. The appeal brings up for review so much of an

order of the same court, entered April 22, 1976, as denied

defendants’ motion for summary judgment.

Board of Educ. v Nyquist, 94 Misc 2d 466, modified.

HEADNOTES

Constitutional Law — Standing — Justiciability

1. Plaintiffs, various boards of education throughout the State of New York, have

standing to challenge the State's current method for allocating resources to meet the

constitutional mandate that it provide for “the maintenance and support of a system of

free common schools, wherein all the children of this state may be educated” (NY Const.

art XI. §1) in a suit wherein they assert that said present financing method violates the

equa! protection clauses of the State and Federal Constitutions (NY Const. art I. 811.

US Const. 14th Amdt, $1). and, in view of the expanding scope of standing. plaintiffs

school children, represented by their parents, have similar standing: moreover. the

controversy is susceptible of judicial resolution and. accordingly, the merits of plaintiffs’

claims of constitutional infringement are properly reached by the court, which need not

reorder fisca! priorities or interject itself into the day-to-day administration of the school

system or educational policies to entertain the action

Constitutional Law — Equal Protection of Laws — Public School Finance

System

2. New York's current public school finance system, whereunder the quality of the

educational opportunity offered by any particular local school district is largely deter-

mined by the amount of taxable property in the district, violates the equal protection

clause of the New York State Constitution (art I. $11); the State has failed to meet its

A36

burden, under the “intermediate” or “heightened” level of State constitutional scrutiny,

of demonstrating that the system, which presently impinges upon the important consti-

tutional right of an education guaranteed to all of the children of this State by section 1

of article XI of the New York Constitution, furthers the asserted State interest of

preserving local control over education in these districts, and it has also failed to show

that the objective advanced by the classification cannot be achieved by a less intrusive

method of financing the public school system.

Constitutional Law — Equal Protection of Laws — Public School Finance

System

3. New York's current public school finance system, whereunder the quality of

educational opportunity offered by any particular local school district is largely deter-

mined by the amount of taxable property in the district, does not violate the Fourteenth

Amendment of the United States Constitution; education is not a fundamental right

under the Federal Constitution and, even assuming that some identifiable quantum of

education is a constitutionally protected requisite of the exercise of the First Amend-

ment or electoral franchise rights, both of which the Constitution does guarantee,

evidence that under the existing system certain children have not been provided an

education which meets basic minimum standards and evidence of a significant variation

in educational opportunities provided by local districts, does not demonstrate that New

York has deprived its voung people of First Amendment rights and electoral franchise

rights to such an extent that the Fourteenth Amendment is violated.

Constitutional Law — Equal Protection — Public School Finance System

4. New York's current public school finance system, which creates vast variances

among local schoo! districts in the State in the quality of education provided to the

children within those districts, violates the imperative of section | of article XI of the

New York State Constitution that the State maintain and support a system of free

common schools “wherein all the children of this state may be educated”, since said

method of financing fails to establish a school system capable of providing an education

for many educable children; a mandate that the State of New York maintain a system to

provide an education for the children of the State which is “thorough and efficient” or

“ample” is implicit in the unembellished language of the education article.

APPEARANCES OF COUNSEL

Robert Abrams, Attorney-General (Shirley Adelson Sie-

gel, Amy Juviler, Rosalind S. Fink, Robert L. Schonfeld,

Clement H. Berne and Evelyn Tenenbaum of counsel), for

appellants-respondents.

Kramer, Lowenstein, Nessen, Kamin & Soll (Daniel P.

Levitt and Alan Jay Stein of counsel), for respondents-

appellants.

John Silard, Joseph L. Rauh, Jr., Elliott C. Lichtman

and Mary M. Levy (Rauh, Silard & Lichtman) for interve-

nors-respondents. (Adam Kaufman for Rochester Board of

Education; Allen G. Schwartz, New York City Corporation

Counsel (James G. Greilsheimer and Doron Gopstein / of

counsel; David M. Garber, Syracuse Corporation Counsel;

and Joseph P. McNamara, Buffalo Corporation Counsel).

A37

Shearman & Sterling (Wayne D. Collins, William M.

Kelly and Dennis P. Orr of counsel), for Public Education

Association and others, amici curiae.

OPINION OF THE COURT

Lazer, J.

The educational command of New York's Constitution is

simple and direct: “The legislature shall provide for the

maintenance and support of a system of free common

schools, wherein all the children of the state may be

educated That simple sentence comprises the essential

constitutional underpinning for a multifaceted fiscal and

administrative structure encompassing a central author-

ity, more than 700 school districts, and over 4,000 schools

in which some 200,000 professionals conduct the education

of 3,000,000 of the State’s children. Twenty-seven of the

school districts, four of the five largest cities in the State,

and a number of schoo! children and their parents have

joined in challenging the statutory scheme under which

the public educational system receives its fiscal support.

Basing its conclusions on detailed findings of fact, the trial

court (94 Misc 2d 466) has declared the public school

finance system violative of the equal protection clauses of

the State and Federal Constitutions and the education

article of the State Constitution. Although we depart from

a portion of the rationale for the trial court’s opinion and

disagree with its determination of the Federal question, we

concur with the ultimate conclusion — New York’s method

of financing public education is constitutionally defective.

I

This litigation symptomizes the continuing struggle be-

tween dual forces: the desire of society’s members to have

educational opportunity for all children and the desire of

individual families to provide the best education they can

afford for their own children.“ The struggle has been

spurred to its current stage of intensity by two sociodemo-

graphic events — the post-World War II population explo-

sion with its attendant out-migration from city to suburb

1. NY Const, art XI. 81

2. Foreword by Professor James 8 Coleman to Coons. Clune & Sugarman. Private

Wealth and Public Education, p vii.

A38

and the in-migration of the poor and disadvantaged to the

cities.’ With the decline of the cities and the emergence of

wide variances in suburban community wealth, disparities

in the quality of education based upon real estate wealth

have spawned widespread dissatisfaction with property-

oriented educational finance systems. While the ensuing

litigation first focused on the Federal Constitution, subse-

quent judicial events have transformed the critical ques-

tion — the existence of a constitutional requirement for

equal educational opportunity — to one of State constitu-

tional interpretation.

Early in the recent decade — which witnessed school

finance litigation in nearly two thirds of the States‘ — the

California Supreme Court concluded that differences in

educational quality based on the wealth of a child’s parents

or neighbors undermined core principles of representative

government and violated guarantees of equal protection of

the law (see Serrano u Priest, 5 Cal 3d 584 (1972; Serrano v

Priest (D. The post-Serrano wave of educational finance

reform’ was quickly stifled, however, when the United

States Supreme Court found school district wealth not a

suspect classification, education not a fundamental right

and the equal protection mandate of the Fourteenth

Amendment not contravened by the Texas method of fi-

nancing education (see San Antonio School Dist. v Rodri-

guez, 411 US 1 [1973]). Although two of our neighbor

States subsequently determined that their educational fi-

nance systems did not meet the mandates of their State

Constitutions (see Robinson v Cahill, 62 NJ 473 [1973],

cert den sub nom. Dickey v Robinson, 414 US 976; Horton v

Meskill, 172 Conn 615 [1977]), and California took the

same path (see Serrano v Priest [II], 18 Cal 3d 728 [1976)),

the pall of Rodriguez continues to overcast all educational

finance jurisprudence.

3. Thomas, Equalizing Educational Opportunity Through School Finance Reform: A

Review Assessment, 48 U of Cin L Rev 255.

4. Levin, Current Trends in School Finance Reform Litigation: A Commentary, 1977

Duke L J 1099. Legal attacks on school finance systems commenced in the late 1960's.

See Mclnnis v Shapiro, 293 F Supp 327, aſſd sub nom. Mclnnis v Ogiivie, 394 US 322;

Burruss v Wilkerson, 310 F Supp 572. affd 397 US 44.

5. Grubb, The First Round of Legislative Reforms in the Post-Serrano World, 38 Law

and Contemporary Problems 459.

A39

This State’s litigation commenced in June of 1974 when

the Board of Education of the Levittown Union Free School

District joined with the boards of 26 other districts and 12

elementary and high school students to seek judgment

declaring the method of financing the State’s public educa-

tion system unconstitutional. The Boards of Education of

four of the five largest cities in the State — New York City,

Buffalo, Rochester and Syracuse — plus 12 city school

children subsequently served a separate complaint as in-

tervencr-plaintiffs. The defendants are the Commissioners

of Education and of Taxation and Finance of the State of

New York, the State Comptroller, and the University of

the State.

Both groups of plaintiffs claim that New York’s method

of financing public education violates the State“ and Fed-

eral equal protection clauses and section 1 of article XI of

the State Constitution.’ The original plaintiffs contend

that the quality of education actually delivered by the

State depends upon the degree of real estate wealth within

the respective school districts. With most educational reve-

nue deriving from local real property taxes, the same rate

of taxation produces gross disparities in per pupil tax yield

between districts rich and poor in realty wealth, depriving

the poor of the ability to match the rich in per pupil

expenditures and quality of educational services even if

they tax at higher rates than do the rich. Since State aid

formulas are inadequate and often counterproductive in

their equalization aspects, low-wealth districts cannot fur-

nish what is obtainable elsewhere — smaller class size,

more experienced and effective teachers, low student/

teacher ratios, broader curricula, extensive extracurricular

activities, more modern equipment and special programs

for both the disadvantaged and the specially gifted. New

York thus denies plaintiffs the educational resources avail-

able to wealthy districts and compels the offer of inferior

education in contravention of the equal protection clauses of

the State and Federal Constitutions.

6. The first sentence of section 11 of article I of the New York Constitution declares

“No person shal! be denied the equal protection of the laws of this State or any

subdivision thereof.”

7. “The legislature shal! provide for the maintenance and support of a system of free

common schools, wherein all the children of the state may be educated ~

A40

The statutory scheme is also attacked as violative of the

education article of the State Constitution, which the origi-

nal plaintiffs view as envisioning a single State-wide

school system instead of more than 700 distinct systems

under which students, who may be equivalent except for

district of residence, do not receive equivalent educational

advantages. In selecting a financial structure which per-

mits the existence of such gross disparities, New York has

failed to fulfill its duty to provide a “system” where “all the

children” of the State may be educated.

The intervenor cities argue that despite their real prop-

erty resources they are so fiscally incapacitated by “munic-

ipal overburden”, labor market differences and needs dif-

ferentials as to be the least capable of relying on locally

raised revenues to finance education. The overburden re-

sults from the necessity to devote such high proportions of

the municipal tax base to noneducational services as to

deprive education of its rightful due. Furthermore, the

State’s equalizing devices bear no fair and substantial

relationship to equalization of capacity because they mea-

sure capacity by per pupil property wealth, and the special

statutes designed to assist districts with pupils requiring

compensatory school services provide less per pupil aid to

the urban districts which have the highest concentration of

such children.

In response, the defendants first challenge the justicia-

bility of the issues and the plaintiffs’ standing to maintain

the action. On the merits, they assert that the State

Constitution requires only that the State guarantee suffi-

cient funds to ensure a basic minimum education for all its

children, and that the constitutional requirement has been

met by the current education system; that the legislative

scheme for financing education is a rational one designed

to preserve local control over education; and that the

numerous components for distributing State aid under the

formulas are rational exercises of legislative judgment.

Finally, the defendants contest the intervenors’ assertions

that inexorable municipal and educational overburdens

require compensatory adjustments in the aid formulas to

reflect these urban realities.

A4l

After a trial spanning 122 days, 23,000 pages of tran-

script and involving the testimony of 128 witnesses and the

admission of 400 exhibits, Trial Term rendered 487 find-

ings of fact and, in a remarkable opinion (Board of Educ. v

Nyquist, 94 Misc 2d 466, supra), concluded that New

York’s school finance system violated the equal protection

and education clauses of the State Constitution and, in the

case of the intervenors, the Federal equal protection clause

as well. Nonetheless, the court found that the use of local

school districts and reliance on local taxation was conso-

nant with the Federal and State Constitutions and, while

retaining jurisdiction, permitted the existing school fi-

nance system to continue until requisite changes were

made or an injunction issued. In their appeals, the defen-

dants seek reversal, and the original plaintiffs seek an

additional declaration that the financing system is viola-

tive of the Federal equal protection clause as to them.

Trial Term’s requisite focus was upon the finance system

as it existed in 1974, including the State aid formula

enacted that year (see L 1974, chs 53, 718), but that

prescription has been further altered since the trial (see L

1978, chs 53, 74, 593; L 1979, chs 53, 288; L 1980, chs 53,

352, 678; L 1981, chs 53, 148). Since it is our obligation to

decide these appeals based on the law as it exists at the

time of appellate decision (Fruhling v Amalgamated Hous-

ing Corp., 9 NY2d 541, app dsmd 368 US 70; Strauss v

University of State of N. V., 2 NY2d 464, app dsmd 355 US

394, reh den 355 US 968; Black Riv. Regulating Dist. v

Adirondack League Club, 307 NY 475; United States v

Schooner Peggy, 1 Cranch [5 US] 103), we have been

compelled to evaluate the legislation which has intervened

since the trial court rendered its decision. As a conse-

quence — and despite the delays inherent in the process —

we have solicited the parties’ views as to the effects of the

legislative changes and their suggestions for further find-

ings of fact. On the basis of our scrutiny of the trial record,

and analysis of the more recent statutes and various State

Education Department computer runs which the parties

have by stipulation made part of the record, we are modify-

ing some of the trial court’s findings and inserting a

A42

number of entirely new ones. Nevertheless, in affirming

the great majority of Trial Term’s findings, we are con-

vinced that the intervening statutory alterations have

worked no substantial change in the substance of the

conditions found by that court. If those conditions sufficed

to render the educational finance structure constitution-

ally deficient, legislative amendments have not cured the

malady. We briefly summarize here some of the essential

factual conclusions we have reached.“

The State's educational funding sources are composed of

local taxes, State appropriations and Federal aid. Indepen-

dent school districts possess the power to tax real property

while cities with populations that exceed 125,000 have 4

range of revenue raising measures, including real property

taxes, with which to defray all municipal expenses, includ-

ing education. Fifty-five per cent of educational funds

originate locally, 40% comes from the State, and the bal-

ance derives from Federal sources.

In 1925, the Legislature initiated the “foundation grant”

system of providing aid to education — a method which

underwent numerous modifications in the decades that

followed.’ The 1974 formula in effect at the time of trial

entitled each school district to obtain State assistance in

raising a support figure of $1,200 per aidable pupil unit by

levying a hypothetical 15 mill tax upon the full value of its

real property tax base. This formulation was altered by a

“two-tier” arrangement adopted in 1978 (L 1978, ch 74,

$5) and further modified in 1980 (L 1980, ch 53) and 1981

(L 1981, ch 53). The first tier of the current prescription

8 The detailed findings which provide the comprehensive basis for our factual

conclusions. have been approved by the court and constitute an appendix to this opinion.

9 New York's foundation grant system originated in the Cole-Rice Law of 1925 J.

1925. ch 675) following the Strayer and Haig report of 1923 ‘Strayer & Haig, The

Financing of Education in the State of New York, 1923). After the report of the

Diefendorf Committee in 1962 ‘see NY Legis Doc. 1962, No. 10), the foundation grant

program was abandoned in favor of a hared cost program. which quickly deteriorated

to anvtfer system of dispensing foundation grants because of the low expenditure

cetlings set by the Legislature ‘see Coons, Clune & Sugarman, op. cit., at pp 182-188). In

1972. The Fleischmann Report on the Quality, Cost and Financing of Elementary and

Secondary Education in New York concluded that the existing system was hopeless and

recommended full State assumption of fiscal costs. The report was followed by the

impaneiment in 1973 of a Task Force on State Aid for Elementary and 8

schools. whose proposals resulted in further amendments to the State aid system see

1974, chs 241, 718). The determination of unconstitutionality under review here was

followed by the creation of the New York State Special Task Force on Equity and

Excellence in Education which has rendered two interim reports.

A43

entitles each district to raise $1,650 per weighted pupil by

imposition of an 11.57 mill tax on its full tax base with the

State compensating for any deficiency. The second tier is

keyed to the adjusted gross income (for income tax pur-

poses) behind each pupil unit in the district. Under it a

district with adjusted gross income of less than 125% of the

State average of $29,700 will receive assistance to a theo-

retical maximum of $235 per pupil unit if the income is

zero. Although the 1981 legislation which related second

tier assistance to personal wealth invoked a concept new to

educational finance in New York, its total effect on the

inequities in the system is insignificant due either to the

height of income at which the formula commences its

assistive function or the limited sums involved at the

second tier level. Indeed, the 1981 adjustments to the

operating aid formulas will result in plaintiff Levittown

receiving an increase in operating aid of less than 829.000.

or .21% more than it received in 1980-1981; a far wealthier

district — Great Neck — fares better, however, receiving

$24,000 more — a .71% increase over its previous year's

aid. Whatever the tendency of the support figures in both

tiers to equalize fiscal capacities of school districts, how-

ever, it has been partially offset by the statutory entitle-

ment of every district to a flat grant of $360 per aidable

pupil regardless of wealth.

Both the 1974 and 1981 formulas have further disequal-

izing aspects. School districts with diminishing pupil

counts or sharp increases in property wealth can avoid

unpleasant consequences to their State aid allotments by

resorting to a “total save harmless” prescription which

10 The current formula for computing first tier operating aid 1s

OA, = $1.65011 — 51)

N ts’

$72.700

Thus. for the district of average wealth ax of 1981 ‘that is. one in which district

valuation total wealth pupil units equals $72,700) State aid under the first ters 81.650

(1-(.51 + 1) = $808.50 Education Law. § 3602. subd 1, par las amd by L 1981. ch 53.

$11), subd 3, par b las added by L 1981. ch 53. 617, subd 12. par b |as amd by L 1981. ch

53. 824%

The current formula for computing second tier operating aid is

OAg = $235 11 - .80 district adjusted gross income '

$29.700

Thus. the district which has an adjusted gross income equa! to the State average as of

1981 (1.e.. $29,700) received $47 per pupil unit ($235 | 1.80 1)| = $47) Education Law.

§ 3602, subd 1. par k jas added by L 1981. ch 53. 813 subd 3. par c |as added by L 191

ch 53. $17); subd 12. par c las amd by L 1981. ch 53. §25))

A44

allows them to receive the same total State aid as in the

prior year or — since 1980 — to receive “special aid” which

gives them the same State assistance per pupil as was

received in the prior year provided the increase does not

exceed 8% per pupil or the total amount received in the

previous year. The school districts which calculate State

aid under these provisions receive assistance which main-

tains their parity with the past without accounting for

their currently lessened needs. Approximately one third of

the districts now utilize these formulas and some have had

continuous resort to such save harmless methods of calcu-

lating assistance since 1965.

While additional State aid is provided for buildings,

transportation, Boards of Cooperative Educational Ser-

vices (BOCES) and various other programs, the formulas

employed in computing transportation and BOCES aid are

more beneficial to property rich districts than to those of

low wealth. Indeed, one of the two alternative computa-

tions available in the BOCES formula provides a wealthy,

high-spending district with recoupment of almost the same

percentage of its approved expenses as a poor district.

The record demonstrates that the ability to expend sums

for educational purposes and the quality of the educational

services delivered are directly correlated with local real

property wealth. In 1975, that wealth ranged from

$412,370 per pupil on a weighted average daily attendance

basis to $8,884 — a ratio of 46 to 1. When the extremes

were eliminated, the variation at the ninetieth and the

tenth percentiles of wealth was about 4 to 1. The existence

of grossly unequal access to wealth within the same coun-

ties was evidenced by the more than $124,000 of value per

pupil in the Nassau districts of Manhasset, North Shore

and Great Neck as compared to $30,000 to $37,400 in

Levittown, Roosevelt and North Merrick. Three Suffolk

districts possessed per pupil wealth in excess of $370,000,

while three of the less endowed had less than $27,000. By

1981, the same three highest Nassau County districts

ranged from $197,000 to $176,000 in per pupil wealth

while the same lowest ranged from $42,000 to $63,000; in

Suffolk County, the three richest districts had per pupil

wealth in excess of $432,000 while the three poorest had

A45

less than $38,000. Trial evidence established that the

number of children affected by wealth differentials was

substantial. In 1974-1975 only 18% of the State’s pupils

resided in school districts whose real property wealth fell

within 10% of the State average of $49,000 and more than

half of the State’s pupils lived in districts whose rea!

property wealth was 25% above or below the State aver-

age.

The disparities in operating expenditures per pupil in

1974-1975 ranged from $4,215 for the richest district to

$936 for the poorest, a ratio of 4.5 to 1. The district at the

ninetieth percentile spent $2,051 per pupil compared to

$1,089 spent at the tenth percentile, a ratio in excess of 1.9

to 1. Three districts in Suffolk spent more than $6,300 and

four spent less than $2,300 while the ratios between some

districts in Nassau and Albany Counties reached 2 to 1.

The direct connection between wealth and operating ex-

penses and total expenses is revealed by further statistics,

a few of which bear mention here. For the 1975-1976 year,

the 44 districts with less than $15,000 value per pupil

spent an average of $1,789 while the 21 wealthiest districts

(with $120,001 to $300,000 full value) averaged $3,744 per

pupil. In 1977-1978, operating expenditures per pupil at

the second decile of real estate wealth ($37,982) were

$1,571 per pupil while in the ninth decile ($86,756) the per

pupil expenditure was $2,203.

The consequences of these disparities are dramatic. Dis-

tricts with full value of under $20,000 per pupil raised on

the average only $276 per pupil while those with more

than $60,000 raised $1,743. To achieve expenditure levels

to provide better educational output, low-wealth districts

must tax themselves at relatively high rates, as a result of

which they encounter difficulties in obtaining school bud-

get approvals, imposition of austerity budgets which limit

transportation, supplies, library and textbook purchases,

and, ultimately, rises in rates of mortgage foreclosure ana

community instability. With professional staff ratios one of

the most important indicators of quality in educational

programs, higher we ilth districts have a higher ratio of

professional staff to students and smaller class sizes; one

study revealed a 40% greater density of classroom teachers

A46

per 1,000 pupils in high-spending districts. Not only are

the teachers employed by the wealthier school districts

more numerous on a per classroom basis, but they gener-

ally possess superior experience and training. Low-wealth

districts are unable to reduce class size and their children

lose the resulting individual attention which is

particularly important for both the disadvantaged and the

gifted. Such districts are compelled to hire fewer nonteach-

ing personnel as guidance counselors, psychologists and

therapists and they cannot adequately provide the special

attention requisite for students with severe speech and

hearing impediments. Poor districts must ration their

speech therapists and other ancillary services to such a

degree that long waiting lists exist for these services. Also

constrained by insufficient realty wealth are the offer of

the number and variety of advanced placement programs

(which encourage children to continue in school and pro-

vide better preparation for college), advanced courses in

the sciences, adequate variety in language courses, pro-

grams in the arts and sufficient field trips, all of which are

available to wealthier districts, often without greater tax

effort. Finally, the low-wealth districts experience chronic

shortages of equipment and supplies.

In property-poor districts, budgetary constraints limit

local ability to provide desired educational output and

minimize freedom of choice. The record reveals that low-

wealth districts have little leeway in developing curricula

beyond what is required as a State minimum. In Levit-

town, advanced mathematics, language courses and cer-

tain mechanical arts courses were discontinued, basic cur-

riculum courses were reduced, industrial arts programs

could not be offered, foreign language programs in junior

high school could not be re-established, and conversational

foreign language courses could not be introduced in its

elementary schools — all as a consequence of lack of funds.

In the Roosevelt school district, as in many others, extra-

curricula programs requiring stipends, such as interscho-

lastic sports and honor societies, were eliminated.

Fund shortages also affect district ability to engage

necessary teaching and administrative personnel. At the

time of trial, 9 of Brentwood’s 12 elementary schools were

A47

without assistant principals and the district was unable to

follow the Education Department’s recommendation for

reducing class size in certain courses because it could not

afford to hire the requisite additional staff. In Roosevelt,

there were no funds for substitute teachers and 23 profes-

sional staff members had to be terminated in 1975-1976 to

eliminate a budget deficit. In Burnt Hills — Balston Lake.

budget cuts mandated a staff reduction of 25.9 positions,

14.9 of which were occupied by professionals.

At the root of the intervenors fiscal problems is munici-

pal overburden — the inexorable drain on the tax base

caused by the need to deliver more numerous and more

costly noneducational services. The condition is unreme-

died by the State aid formula which ties reduced average

daily attendance to realty resources and thereby overstates

the cities’ true ability to finance education. Burdened with

higher expenditures for noneducation purposes than the

surrounding counties and the rest of the State, the conse-

quences to the cities are obvious — the four intervenors

spent 28% of their tax revenues on education while juris-

dictions outside the cities spent 45%, and on a per capita

basis, with Federal and State aid netted out, New York

City’s nonschool spending was $401.06 while in the rest of

the State the figure was $183.17.

The conditions which create municipal overburden in-

clude those to which the decline of central cities are cus-

tomarily attributed, and we conclude they are inexorable.

The intervenors are burdened with high concentrations of

the poor and elderly, large numbers of public assistance

and public health recipients, high unemployment and low

educational attainment, high crime rates, professional

rather than volunteer fire departments, costly correctional

facilities, mass transit problems, higher park and recrea-

tion expenses, subsidization of public housing, higher con-

struction costs for new schools, deterioration of infrastruc-

ture, plus a myriad of other noneducational costs man-

dated by State law in connection with city employees, such

as the “heart bill”, which was extended by the 1981 Legis-

lature (L 1981, ch 381, §6).

A48

The severity of the problems is illuminated by the fact

that, with 43% of the State’s population, New York City

had 70% of the State’s public assistance recipients, who

constituted 12½% of its residents as compared to 3.6% in

the rest of the State. The city had 67% of the State’s

Medicaid claimants and spent $51 per capita in contrast to

$15 in the rest of the State. The costs of public assistance

and Medicaid are largely beyond local control because they

are governed by State and national criteria.

Its huge concentration of poverty stricken gave New

York City 47% of the State’s pupils with special educa-

tional needs, although it had only 31% of the total public

school population and received only 26% of the State’s

education operating aid. Despite changes in the aid pre-

scriptions which have occurred since the trial, dispropor-

tionately low State aid to the cities continues. By 1980-

1981 New York City’s percentage of the State’s special

needs pupils had risen to 51% as against 33% of the public

school enrollment and 29% of education operating aid.

Apart from Buffalo, the intervenors still receive fewer tax

dollars in State aid per pupil unit than does the average

school district.

Another disequalizing assumption of the State-wide

scheme is uniformity of the purchasing power of the educa-

tion dollar. State mandated minimum education programs

cost 47% more and average expenses were 29% higher in

down-State and metropolitan areas than in up-State areas,

matters further exacerbated by the higher cost of living in

the large urban centers. The largest component of school

expense — teacher salaries — were higher down-State and

approximately 30% higher in urban areas than in the rest

of the State.

The State’s reliance on attendance rather than enroll-

ment figures results in a double financial penalty to the

cities because of their high rates of absenteeism. The State

aid formula first calculates fiscal capability by dividing

total real property valuation by total wealth pupil units, a

number based upon average daily attendance, and at a

subsequent point determines the aggregate aid by utilizing

“total aidable pupil units” which is again predicated upon

average daily attendance in the district. Since the average

A49

daily attendance in the cities is lower by far than in the

rest of the State, the formula artificially inflates the real

property value behind each pupil. In 1974-1975, the aver-

age daily attendance of students in the city schools was

84% in contrast to almost 94% elsewhere in the State.

With planning based on total enrollment and the concomi-

tant need to render additional assistance to pupils who

have fallen behind due to absence, the high number of

absentees increases education costs in the cities while at

the same time depriving them of needed succor. Because

the high absentee rate is a direct consequence of poverty

and underlying social conditions, its effects are inexorable

and its financial effects cannot be alleviated by employ-

ment of additional attendance officers.

The significantly higher proportion of physically, men-

tally and emotionally handicapped and learning impaired

pupils resident in the cities and the extra personnel re-

quired to administer necessary programs compel the ex-

penditure of greater sums to educate them. While the State

aid formula provides additional weightings for handi-

capped students, the computation is flawed by a failure to

account for municipal overburden, reduced purchasing

ged of city educational dollars, and high absentee rates.

e record shows that the formula deprived the interve-

nors of some $26,000,000 in State aid in 1974-1975.

Those who require special programs 60% or more of each

school day exist in substantially higher numbers in the

intervenors’ schools than elsewhere. Reduced aid to the

cities also impairs their abilities to instruct students who

speak little or no English, although such programs are

required under Federal mandate. While the 1980 formula

grants additional weighting for disadvantaged pupils and

certain categories of the handicapped in secondary schools,

the failure to apply such weighting to all handicapped

students in secondary schools denied the intervenors some

$12,000,000 aid for the 1980-1981 year.

Finally, the cities have the highest concentration of

occupational education students, but the “Special Services

aid” formula which assists with occupation education is

less favorable than the BOCES computation available

elsewhere. Had the BOCES formula been available to the

ASO

intervenor cities in 1975, they would have received over

$15,000,000 in additional aid, more than $12,000,000 addi-

tional for the 1980-1981 year, and $5.7 million more for

1981-1982. Because of their large numbers and the greater

expense of the programs offered, city school districts are

unable to accommodate all students requesting occupa-

tional education.

The 1981 amendment which tied the second tier of basic

aid to adjusted gross income within the districts further

discriminated against the cities because their income gen-

erally exceeds the State-wide average despite the huge

masses of poverty stricken who reside within their bounda-

ries. As a result, New York City — with 33% of the State’s

pupils — is entitled to only 27% of second tier aid, and

despite unquestioned enrichment of the handicapped aid

prescriptions to assist the cities in 1981, New York City

still will receive total aid in the area of 29% of the State’s

total while supplying one third of the pupil body and while

still afflicted with the problems we have surveyed.

The results of national, State and local achievement

tests demonstrate that unconscionable numbers of children

fail to acquire basic educational skills. In Rochester, stan-

dardized tests given in 1975 revealed that 45% of the

secondary school students were “educationally disadvan-

taged” — that is, not performing at grade level and at least

two years or more below level in reading — as were 58% of

those students in mathematics; 16% of Rochester's twelfth

grade students read fifth grade level or below. In a 1976

New York City test, 12% of the ninth grade students were

found to read at fourth grade level or below. Of these, 7%

scored at a third grade level or below, and 4% scored at a

second grade level or below. Other cities have similarly

depressing levels of underachieving pupils. In one New

York City school, 70% of the ninth graders tested were two

or more years below grade level and one fourth were at

fourth grade level or below. These percentages translate

into many thousands of high school children, some of whom

are totally illiterate while others can read the words with-

out accompanying comprehension and still others cannot

apply the meager information they can obtain to problems.

In both reading and mathematics in all grades, the four

ASI

cities have far larger percentages of students in the bottom

of three stanines of the Pupil Evaluation Program. We

have been directed to no sources which would suggest any

significant improvement in these dismal statistics in re-

cent years.

The gross educational underachievement evidenced by

these and other findings is compounded as the child prog-

resses through school because the sequential format of the

curriculum builds upon skills assumed to have been ac-

quired earlier. Despite this phenomenon, however, educa-

tional experts testified that underachievement or failure

could be ameliorated or overcome entirely by the imple-

mentation of various remedial programs, some of which

had been conducted in their cities. Such programs can be

implemented only at a substantial cost, and the reduced

aggregate State aid precludes the cities from establishing

the programs for all those who would benefit from them,

and in fact, results in curtail:ment of existing programs.

Trial Term's summary of the situation is apt: “When the

cities concentrate resources on pupils with special needs,

other pupils, including those who are in fact disadvantaged

but not reached by special programs, are subjected to

educational deprivation. As concerns educational offerings

the city schools have been shown to have among the

highest teacher-pupil ratios in the State and a severely

constricted variety of elective courses. Many pupils attend

classes in buildings which were shown to be in need of

repairs and lacking in facilities for counseling, study or

recreation. Pupils attending schools in the large cities were

shown to be provided with less physical security in their

schools; less transportation; restricted sports and extracur-

ricular activity; inadequate library and health services

and diminished offerings in art and music. In summary,

the failure to provide State aid on an equitable basis

deprived the children in the large city districts of an equal

education opportunity.” (Board of Educ. v Nyquist, 94 Misc

2d 466, 518-519, supra.)

IV

{1} Two of defendants’ threshold contentions — both

fastening upon aspects of justiciability (see Jones v Beame,

52

45 NY2d 402; Matter of Dairylea Coop. v Walkley, 38 NY2d

6) — merit summary dispatch. The various boards of

education have standing to make the current challenge

(see Board of Educ. v Allen, 20 NY2d 109. affd 392 US 236),

and, in view of the “expanding scope of standing” ( Matter of

Fritz v Huntington Hosp., 39 NY2d 339, 345), the school

children represented by their parents have similar status

(see Boryszewski v Brydges, 37 NY2d 361).

Nor is there substance to the second assault upon justi-

ciability. Averring that the controversy is unsusceptible of

judicial resolution, the defendants proclaim that adjudica-

tion of issues relative to the fiscal structure of the educa-

tional system will usurp legislative functions. But the

court need not reorder fiscal priorities (see Jones v Beame,

supra) or interject itself into the day-to-day administration

of the school system. or educational policy (see James u

Board of Educ., 42 NY2d 357) to entertain this action. The

question here is whether the State’s chosen method for

allocating resources to meet the constitutional imperative

of educating children comports with the Federal and State

Constitutions. We know of no sister State which has re-

fused merits treatment to such issues, and we would regard

our own refusal to adjudicate plaintiffs’ claims of constitu-

tional infringement an abdication of our constitutional

duties. We turn, then, to the merits of the action.

Vv

Equal protection doctrine has two major concerns: the

nature of the discrimination, that is, the division of people

into classes for the purpose of differential application of the

law, and the nature of the benefits or burdens involved.“

The first step in analysis of a claim of deprivation of equal

protection is selection of the measure of scrutiny to be

applied. The traditional choice is between two alternatives

— a “strict scrutiny” which is “usually fatal” in effect,“

11 Levin, The Courts. Congress, and Educational Adequacy: The Equal Protection

Predicament, 39 Md L Rev 187

12 Gunther. The Supreme Court 1971 Term- Foreword: In Search of Evolving

Doctrine on a Changing Court: A Model for a Newer Equal! Protection, 86 Harv L Rev 1,

8. Writing in 1973, one commentator noted that since 1944 no classification to which

strict scrutiny had been applied survived ‘see Richards, Equal Opportunity and School

Financing: Towards a Moral Theory of Constitutional Adjudication, 41 U of Chi L Rev

32).

AS3

and “rational basis” review which has been characterized

as deſerential' and toothless“ and under which the

challenged classification generally survives

Strict scrutiny is the test when the challenge involves

suspect classifications such as race, national origin“ and

alienage, or classifications which impinge upon a “funda-

mental interest” such as voting.“ travel.“ procreation,””

criminal] appeals,*' or First Amendment rights.“ When the

court invokes strict scrutiny review, the government must

prove the exactitude of the relationship between the means

chosen and the legislative end to be served“ and establish

that the end is justified by a “compelling state interest“

But where the classification is not suspect and no funda-

mental interest has been infringed, rational basis review is

required; those who challenge the legislation must show

that the classification had no rational relationship to a

legitimate legislative end (Vance v Bradley, 440 US 93;

Village of Belle Terre v Boraas, 416 * 1; Dandridge v

Williams, 397 US 471). Since they rarely succeed, it is

obvious that under the “two-tier” approach the litigation is

almost always determined by the method of review se-

lected. In San Antonio School Dist. v Rodriguez (411 US 1,

supra), the Supreme Court found wealth nonsuspect, edu-

cation nonfundamental, and chose rational basis as the

test. The Texas educational finance scheme survived.

13. Craig v Boren, 429 US 190, 210-211, n * [Powe r. J. concurring!

14. See Trimble v Gordon, 430 US 762. 767. Matter of Lall:, 43 NY 2d 65. 67. affd sub

nom. Lalli v Lalli. 439 US 259

15. Loving v Virginia, 388 US 1; McLaughlin v Florida. 379 US 184. Korematsu !

United States, 323 US 214

16 Castaneda i Partida, 430 US 482: Hernandez t Texas. 347 US 475. cf. Takahashi:

Fish & Game Comm., 334 US 410

17. Nyquist « Mauclet, 432 US 1; Examining Bd t Flores de Otero. 426 US 572.

Sugarman i Dougall, 413 US 634, Matter of Griffiths. 413 US 717. Graham « Rwhard

son, 403 US 365; ef. Ambach i Norwick. 441 US 68: Foley v Connelw. 435 US 291

18. Dunn v Blumstern. 405 US 330, Kramer v Umon School Dist . 395 US 621. Harper

vw Virgina Bd of Elections, 383 US 663, Revnolds « Sims, 377 US 533

19. Memorial Hosp v Maricopa County. 415 US 250. Dunn v Blumstein. 405 US 330.

Shapiro v Thompson, 394 US 618

20. Skinner i Oklahoma, 316 US 535.

21. Griffin i Ilias, 351 US 12

22. Carey v Brown, 447 US 455. Police Dept. of Chicago « Mosley, 407 US 92

23. See. eg. Carev « Brown. supra: Police Dept. of Chicago v Mosley. supra

24. Matter of Griffiths. 413 US 717.

54

The exclusivity of this “rigidified” (San Antonio School

Dist. v Rodriguez, 411 US, at p 98) two-tier system was

overtly challenged when the existence of yet a third test

was posited by Justice MARSHALL in his Rodriguez dissent

(supra, p 70). Citing to a number of earlier determina-

tions,” Justice MARSHALL concluded that the court had

consistently adjusted the care with which it had reviewed

statutory classifications in light of “the constitutional and

societal importance of the interest adversely affected and

the recognized invidiousness of the basis upon which the

particular classification is drawn.” (411 US, at p 99.)

While the Supreme Court has never expressly aban-

doned the theory of two-tier review, it is apparent that

where the classifications involved or the interests invaded

have appropriate standing, the rational basis standard

takes on a “sharper focus” (Craig v Boren, 429 US 190, 210-

211, n [Powe.t, J., concurring]) which is sometimes de-

scribed as “heightened” or “intermediate” scrutiny (Rost-

ker v Goldberg, 453 US —, —, 49 USLW 4798, 4801;

Wengier v Druggists Mut. Ins. Co., 446 US 142; see, gener-

ally, Tribe, American Constitutional Law, § 16-30;

Gunther, Constitutional Law, Cases and Materials {10th

ed], ch 10). Indeed, the Supreme Court has invoked a

range of intermediate approaches to semi-suspect or

sensitive classifications premised upon characteristics

such as gender (e.g., Rostker v Goldberg, supra; Kirchberg

v Feenstra, 450 US 455; Wengler v Druggists Mut. Ins. Co.,

supra; Califano v Westcott, 443 US 76; Caban o Mo-

nam med, 441 US 380; Orr v Orr, 440 US 268; cf. Frontiero u

Richardson, 411 US 677 [plurality applying strict scru-

tiny]}) or illegitimacy (e.g., Trimble v Gordon, 430 US 762;

Matthews v Lucas, 427 US 495; Weber v Aetna Cas. & Sur.

Co., 406 US 164; Levy v Louisiana, 391 US 68; cf. Lalli v

Lalli, 439 US 259) and to classifications which infringe on

important, although not constitutionally “fundamental” or

“preferred” interests, such as the benefit of continued

receipt of food stamps (United States Dept. of Agric. v

Murry, 413 US 508; cf. United States Dept. of Agric. v

25 James i Strange, 407 US 128. Weber » Aetna Cas. & Sur Co. 406 US 164;

E:senstadt v Baird, 405 US 438: Reed t Reed. 404 US 71

26. Tribe, American Constitutional Law. p 1092.

ASS

Moreno, 413 US 528 [explicit equal protection]), affordable

college tuition (Vlandis v Kline, 412 US 441), retention ofa

driver's license (Bell v Burson, 402 US 535), employment in

the Federal civil service (Hampton v Mow Sun Wong, 426

US 88), a father’s interest in custody of his child (Stanley u

Illinois, 405 US 645) or a child’s interest in obtaining

certain Social Security benefits (Jimenez v Weinberger, 417

US 628).

Although the “important interest” cases noted were de-

cided on due process principles, they have been recognized

as “conceptually equivalent to an equal protection chal-

lenge” to the pertinent statutes (Phillips, Irrebuttable Pre-

sumptions: An Illusory Analysis, 27 Stanford L Rev 449,

450; Note, The Irrebuttable Presumption Doctrine in the

Supreme Court, 87 Harv L Rev 1534, 1555-1556; Tribe,

American Constitutional Law, § 16-31, p 1090, n 10; see

Cleveland Bd. of Educ. v LaFleur, 414 US 632, 652 [Pow-

ELL, J., concurring]}), and the heightened scrutiny invoked

is explainable on the basis of the importance of the inter-

ests to the affected individuals. There seems little doubt

that the Supreme Court employs an elevated level of

review when it deems the interests involved to be of

sufficient importance (see Note, 27 Stanford L Rev 449,

460; Note, 87 Harv L Rev 1534, 1550; Tribe, American

Constitutional Law, § 16-31, p 1090), particularly when

legislative and administrative processes seem systemically

resistant to change (id., p 1092).

The critical differences between the rational basis stan-

dard and heightened or intermediate scrutiny are readily

visible. Under the rational basis test, challenged legisla-

tion will survive if it furthers a merely “legitimate” State

interest and if any state of facts can be rationally conceived

— even by the court itself — to support the classification

(see Western & So. Ins. Co. v State Bd. of Equalization, 451

US 648; McGowan v Maryland, 366 US 420; Williamson v

— Opt. Co., 348 US 483; Railway Express v New York, 336

106).

But under the intermediate approaches, the challenged

classification must serve “important”, rather than merely

“legitimate”, government objectives and it must “substan-

tially” further their achievement (see Craig v Boren, 429

AS6

US 190, 197, supra); it will not suffice that the classifica-

tion rationally could be conceived as furthering the end.

Furthermore, the rationale for the classification must be

articulated by its defenders and must have been a motivat-

ing rationale for the law, rather than one supplied by

afterthought (see Tribe, American Constitutional Law,

$ 16-30, pp 1083-1085; Gunther, The Supreme Court 1971

Term- Foreword: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equa! Protection, 86

Harv L Rev 1, 28, 35, 44-47). Even if an “important”

objective is “substantially” served, however, it must be

established that a less intrusive alternative could not

accomplish the same purpose (see Orr uv Orr, 440 US 268,

279, supra; Craig v Boren, supra, p 197; Matthews v Lucas,

427 US 495, 513, supra; Jimenez v Weinberger, 417 US 628,

636, supra; Trimble v Gordon, 430 US 762, 772, n 14,

supra; Alevy v Downstate Med. Center of State of N. F., 39

NY2d 326, 336). Finally, and quite significantly, the party

defending the classification has the burden of demonstrat-

ing both the importance of the governmental purpose to be

served and the substantial relationship between chosen

means and articulated end (see Wengler v Druggists Mut.

Ins. Co., 446 US 142, 151, supra; Caban v Mohammed, 441

US 380. 393, supra; Craig v Boren, supra, p 204).

In New York there is forthright recognition that circum-

stances exist “where the right sought to be vindicated

might be found to call for a test somewhere along the

sliding scale between strict scrutiny at one end and ra-

tional basis at the other” see Montgomery v Daniels, 38

NY2d 41, 61) and such an intermediate standard was

applied when the Court of Appeals decided the reverse

discrimination issue in Alevy v Downstate Med. Center of

State of N.Y. (39 NY2d 326, supra). Writing for the Alevy

court, Judge GaBRIELLI rejected the “polarized and out-

come-determinative” (39 NY2d, at p 333) traditional equal

protection tests and applied an intermediate scrutiny for-

mula. Two subsequent illegitimacy cases (see Matter of

Lalli, 43 NY2d 65, affd sub nom. Lalli v Lalli, 439 US 259;

Matter of Fay, 44 NY2d 137, app dsmd sub nom. Buck v

Hunter, 439 US 1059) also became the subject of the

intermediate test. In this State, equal protection analysis

AS7

is not bound to a formula that contains two extremes but

no middle.

vi

We are precluded from applying strict scrutiny in the

instant case because the State's highest court has twice

cited Rodriguez (411 US 1, supra) in support of statements

that education is not a fundamental right ‘see Alevy v

Downstate Med. Center of State oV. V. supra, pp 332-333;

Matter of Levy, 38 NY2d 653, 658, app dsmd 429 US 805,

reh den 429 US 966). Aware that the doctrine of stare

decisis binds us to follow the holdings of courts higher than

our own, the original plaintiffs argue that Levy is distin-

guishable, Alevy is not applicable, and the references to

educational nonfundamentality in both cases are not bind-

ing here. While it may be crucially significant that Rodri-

guez premised its conclusion of nonfundamentality on the

view that the United States Constitution does not explic-

itly or implicitly guarantee education — and New York's

Constitution does — we see no intellectually defensible

method of holding education fundamental! in the face of

apparently contrary statements from the Court of Appeals.

and we will not seek to downplay their significance (see

Gimble Bros. v White, 256 App Div 439; People v Cascia.

191 App Div 376; United States v DiFrancesco, 604 F2d

769, revd 449 US 117; United States v Bell, 524 F2d 202).

Therefore, while State courts have the right to give

broader sweep to State constitutional guarantees than the

Supreme Court provides for similar Federal guarantees

(Minnesota v Clover Leaf Creamery Co., 449 US 456, 461, n

6; Oregon v Hass, 420 US 714, 719; People v Barber, 289

NY 378, 384) and both California (see Serrano v Priest [III.

18 Cal 3d 728, supra) and Connecticut (see Horton v

Meskill. 172 Conn 615, supra) have found education funda-

mental under their Constitutions, the ultimate message on

fundamentality in this Siete must emanate from the Court

of Appeals. Nor would it be proper, at our level of appellate

review, to emulate the approach tne California Supreme

Court took following Rodriguez (see Serrano v Priest III].

supra) and seek potential escape from the bar of nonfun-

AS8

damentality by determining whether school district wealth

is a suspect classification under the New York Constitu-

tion.

With strict scrutiny barred, invocation of intermediate

or intensified review depends on the importance of the

interest or right allegedly invaded. None would dispute

that education “fulfill[s] ‘a most fundamental obligation of

government to its constituency Ambach uv Norwick, 441

US 68, 74, quoting Foley v Connelie, 435 US 291, 297) and

that it is “perhaps the most important function of state and

local governments” (Brown v Board of E_'uc., 347 US 483,

493; see, also, Ambach o Norwick, supra; San Antonio

School Dist. v Rodriguez, 411 US 1, 29, supra; Wisconsin v

Yoder, 406 US 205, 213; Adler v Board of Educ., 342 US

485, 493; Pierce v Society of Sisters, 268 US 510; Meyer u

Nebraska, 262 US 390). Its position as a primary obligation

of this State was noted by the committee which drafted the

opening section of the education article of the State Consti-

tution in 1894: “There seems to be no principle upon which

the people of this commonwealth are so united and agreed

as this, that the first great duty of the State is to protect

and foster its educational interests.” (Report of the Com-

mittee on Education and the Funds Pertaining Thereto, 2

Documents of Constitutional Convention of State of NY,

1894, Doc No. 62, p 3.)

While it may be a matter of wonder as to who might

argue that education is not important, the question we

treat is of constitutional and not merely societal import. In

both respects, Chief Justice WARREN’s words of 27 years

ago are relevant: “|Education] is the very foundation of

good citizenship. Today it is a principal instrument in

awakening the child to cultural values, in preparing him

for later professional training, and in helping him to adjust

normally to his environment. In these days, it is doubtful

that any child may reasonably be expected to succeed in

life if he is denied the opportunity of an education. Such an

opportunity, where the state has undertaken to provide it,

is a right which must be made available to all on equal

terms.” (Brown v Board of Educ., 347 US 483, 493, supra,

AS9

quoted in San Antonio School Dist. v Rodriguez, 411 US 1,

30, supra.)

Although the Rodriguez conclusion of no guarantee of

equal educational opportunity has reduced Brown's sweep

to that of racial discrimination, none can doubt that we

deal here with obligations and rights which lie at the

philosophic roots of the national fabric, which in the prior

century became a direct command of our State Constitu-

tion, reinforced by compulsory attendance laws and annu-

ally supported by the State's greatest single financial

exertion.“ If institutional stability requires that we find

the right to education not constitutionally fundamental in

New York, we suspect there could be little disagreement

with the view that the right represents an important

constitutional interest. In this regard, we reject as mis-

placed the State’s reliance on Dorsey v Stuyvesant Town

Corp. (299 NY 512, cert den 339 US 981) for the proposition

that Rodriguez (411 US 1, supra) compels application of

the “rational relationship” standard of equal protection

review. It is true that Dorsey posited the proposition that

this State’s equal protection guarantee (NY Const. art I,

811 “is no more broad in coverage” than its Federal

counterpart (299 NY, at p 530). But Rodriguez found that

there was no implicit or explicit Federal guarantee of

education as a matter of Federal constitutional jurispru-

dence. New York has its own constitutional mandate for

education, and after independently canvassing our own

constitutional scheme to gauge the degree of scrutiny to be

applied to this case, we conclude that if our constitutional

gaze cannot be strict, it must be as intense as intermediate

analysis permits.

27 The demand for equality of educational opportunity has a much earlier derivation

than the postwar civil rights struggle In their 1923 report, Straver and Haig ‘see n 9)

wrote p 173). “There exists today and has existed for many vears a movement which has

come to be known as the ‘equalization of educational opportunity or the ‘equalization of

school support A Neu York Times editorial of January 24. 1923 advocated such

legislation as would assure the country child educational advantages in every corner of

the state comparable with those of the city child. and at the same time equalize the

educational burden so far as that could be done lt is obvious that the Times was writing

for a different era

28. The total general fund budget adopted by the State for 1980-1981 was

$15.182.000.000 which included $186.000.000 in Federal revenue sharing funds The

total amount for education was $4.463.659.000, which represented 24’. of

the budget Budget Summary. 1981-1982, pp 45. 47). The amount raised locally for

education was even higher

A60

Once it has been demonstrated that an important inter-

est has been infringed, the first prong of intensified —

though less than strict — equal protection review man-

dates inquiry as to whether the challenged classification

substantially furthers the important governmental pur-

pose the State articulates to defend it. If the State meets

that test, it still must show under the second prong that the

objectives advanced by the classification cannot be

achieved by a less intrusive alternative.

Here, the disputed classification makes education a

function of wealth and permits invidious disparities in

education and educational opportunity between school

children on the basis of the property wealth of the school

districts in which they reside. Trial Term (Board of Educ. v

Nyquist, 94 Misc 2d 466, 523, supra) identified education

and equality of educational opportunity as the state

interests which the statutory plan is designed to satisfy”

and found them unsatisfied. But the justification the State

actually offered for the statutory scheme was preservation

of local control. Intermediate scrutiny requires considera-

tion of the important interest which the State — and not

the court — articulates to defend a classification (Alevy u

Downstate Med. Center of State of N. V., 39 NY2d 326, 336,

supra; see Gunther, The Supreme Court 1971 Term- Fo-

reword, 86 Harv L Rev 1, 35, 47; Tribe, American Constitu-

tional Law, § 16-30, pp 1083-1085). The important interest

proffered in this case is preservation of local control. Not

only is that interest important (see Dayton Bd. of Educ. v

Brinkman, 433 US 406, 410), but we view it as supplying

an appropriate motivating rationale for structuring the

educational scheme around separate school districts.

[2] We balance, then, the extensive evidence of disparity

and discrimination against the justification the State of-

fers — that the present method of financing education

preserves local autonomy. We find that the State has not

sustained its burden of proof. In school districts containing

a large percentage of the State’s school children, the cur-

rent wealth-based system severely constrains the ability of

school boards and administrators to provide the personnel

services, curricula and even the equipment to furnish the

educational offerings they deem suitable for their pupils.

A6l

The freedom to choose and deliver desired educational

output is so inextricably and demonstrably linked to the

degree of property wealth behind each pupil that meaning-

ful local independence is largely reserved for areas with

the real estate resources to exercise it. Local school dis-

tricts cannot choose to have the best education by imposing

the highest tax rate. Instead, the quality of the educational

opportunity offered by any particular district is largely

determined by the amount of taxable property in the

district.” For the property poor, local control of education

is more illusory than real, for it cannot be utilized to

produce the educational output local authorities preceive

as appropriate but only what a limited local tax base will

permit. Since a] general policy of local control affords no

real justification for maintaining a school finance ghetto”

(Carrington, Financing the American Dream: Equality

and School Taxes, 73 Col L Rev 1227, 1259), we reject the

defendants’ contention that local independence of choice is

furthered by the fiscal scheme by which education is cur-

rently funded.

Furthermore, if some other process of reasoning could

lead us to the conclusion that local educational indepen-

dence is preserved rather than eroded by the present

system, we would still be impelled to decide that the end

can be accomplished by financial means which do not foster

a discriminatory educational system pitched toward

wealth and strongly favoring children whose good fortune

it is to have affluent parents or neighbors and therefore to

be endowed with educational opportunities unavailable to

many of their peers. Although we neither suggest nor

indorse any of the numerous proposals for educational

finance reform offered by various of the trial witnesses.“

interested agencies,“ and other educat‘onal experts and

— See San Antonio School Dist. v Rodriguez, 411 US 1, 128 |Marsna.t, J., dissent-

2 These include Professor Walter I Garms of the University of Rochester Professor

Donna Shalala of Columbia University; Dr Joel 8 Berke, Director of the Education

Policy Research Institute of the Educational Testing Service John J. Callahan. Past

Director, School Finance Project for the National Conference of State Legislatures,

—— D.C.

Research Findings and Policy Alternatives: A Second Interim Report of the New

York State Special Tak Force on Equity and Excellence in Education, Sept. 1980, The

Fleischmann Report, n 9.

A62

commentators,” we have no doubt that, when finally con-

fronted with the constitutional invalidity of the current

finance structure, the legislative bodies which were suc-

cessful in establishing one of the Nation’s finest systems of

higher education can produce solutions that will provide

equitable sustenance to permit our educational localities to

exert the requisite efforts and make the independent judg-

ments to create educational outputs which they deem

suitable to local need. A fiscai scheme which affords a

constitutional degree of equality of educational

opportunity need not be inconsistent with local freedom of

choice.

3] Having thus determined that the current educational

finance system is discriminatory and that it cannot survive

a heightened level of State constitutional scrutiny, we

nevertheless depart from the trial court’s determination

that the Fourteenth Amendment has been transgressed.

Relying on certain dicta in the Rodriguez opinion (411 US

1, supra), the able Trial Justice concluded that the evi-

dence warranted his finding a violation of the Fourteenth

Amendment. In the course of concluding that the Constitu-

tion does not guarantee the right to education, the Rodri-

guez court observed p 36) that ſeſven if it were conceded

that some identifiable quantum of ..ducation” was a consti-

tutionally protected prerequisite of the exercise of First

Amendment or electoral franchise rights — both of which

the Constitution does guarantee — there was no evidence

of such deprivation in the case before it. Although we do

have evidence that significant numbers of New York pu-

32. See. eg. Coons, Clune & Sugarman. Private Wealth and Public Education;

Burke. “A Dynamic Finance Policy” Financing the Changing School Program, Proceed-

ing of the Fifth National School Finance Conference. pp 83-84; Burrup. Financing

Education in a Climate of Change | 2d ed pp 262-274, Jones. Financing Public Elemen-

tary and Secondary Education. pp 28-44. Lindman. “The Conant Plan — Shall the States

Take Over the Financing of Schools“, The School Administrator (Wash. D C. Feb.

1470" Mort. Reusser & Pollen, Public School Finance Its Background. Structure. and

Operation Id ed}. pp 255-285, Andersen, School Finance Litigation — The Styles of

Judicial Intervention, 55 Wash L Rev 137. Carrington. Financing the American Dream:

Equality and School Taxes. 73 Col L Rev 1227. Chin, An Analysis and Review of School

Financing Reform, 44 Fordham L Rev 773; Grubb, The First Round of Legislative

Reforms in the Post-Serrano World. I Law and Contemporary Problems 459. Silard &

Goldstein. Toward the Abolition of Local Funding in Public Education. 3 Journal of Law

and Education 307, Thomas. Equalizing Educational Opportunity Through Schoo!

Finance Reform: A Review Assessment, 48 U of Cin L Rev 255, Zelinsky, Educational

Equalization and Suburban Sprawl! Subsidizing the Suburbs Through School Finance

Reform, 71 NW U L Rev 161.

Ab}

pils are ved of the basic educational minimums re-

quired by education article of the State Constitution,

neither the Rodriguez dictum (which left the “quantum of

education” question totally obscure) nor the Supreme

Court's holding in Lau v Nichols (414 US 563) provides any

basis for us to declare that, on this record, New York has

deprived its young people of First Amendment and elec.

toral franchise rights to such an extent that the Four-

teenth Amendment is violated Lau dealt with a violation

of the 1964 Civil Rights Law and not the Fourteenth

Amendment, and even if the Rodriguez dictum is to be

construed as mandating some educational minimum for

the exercise of First Amendment and electoral rights, we

know not what it is. There is no foundation, then, for a

current declaration that New York's educational funding

structure contravenes the Fourteenth Amendment. It suf-

fices that plaintiffs’ guarantee of equal protection of the

law under section 11 of article | of the State Constitution

has been invaded.

Finally, it is necessary to deal with Justice Hopkins’

critique of the legal methodology and factual underpin-

nings of our equal protection holding. With typically con-

summate skill, our — has expressed the reasons

which deter him from concluding that the equal protection

clause of the State Constitution has been violated. We

cannot agree, however, that the Rodriguez case deter-

mined New York's equal protection questions any more

than it did those of California (see Serrano v rest. 18

Cal 3d 728, 766-767, supra), or Connecticut (see Horton v

Meskill, 172 Conn 615, 640-641, supra). Our colleague's

reliance is on Justice Powe..'s assertion that the Rodri.

guez record lacked proof of absolute deprivation of educa-

tion or of a definable suspect class of poor le — the

latter because both poor and nonpoor might reside in some

of the property-poor school districts. But that reference by

the Rodriguez majority addressed the measure of scrutiny

to be emp in determining the Federal equal protec-

tion issues (San Antonio School Dist. v Rodriguez, 411 US

1, 19, 23-24, supra) and not the ultimate merits of the

equal protection claims. As we have previously noted, New

York's Constitution explicitly guarantees education, and if

Ab4

that right is not fundamental, the significance of its sub-

stance in our constitutional scheme cannot be gainsaid.

Therefore, proof of absolute educational deprivation, which

might impinge upon other fundamental rights guaranteed

by the Federal Constitution, simply is not a prerequisite of

intermediate scrutiny of the constitutionally important

interest of education under our State Constitution,

Nor can we concur that plaintiffs’ proof (in its ultimate

effect) circumstantially suggests nothing more than the

existence of lower ratios of teachers to staff and the other

inequalities in staffing. We believe there is an overwhelm-

ing mass of direct proof — reflected in our findings — of the

existence of severe inequities in the educational system

based on differences in district property wealth. There also

is a virtual plethora of evidence, direct and circumstantial,

that the levels of education available in the poorer areas

are significantly reduced. What is determinative of the

equal protection issues before us is not whether there is

absolute deprivation of educational minimums, but

whether the palpable proof of clearly lesser educational

opportunity based on wealth discrimination establishes

violation of the equal protection provision of the State

Constitution, We think it does,”

In — our conclusion of equal protection violation,

we are not oblivious to Justice Horkins’ concern with the

ang of litigative reverberations upon other areas of

tate function. In our view, however, there can be no

justification for overlooking a violation of the equal protec-

33 Justice Hornine has Private Wealth and Public Education ‘see nm 2)

relative to the inadequacy of social sevence to delineate with any clarity the relation

between cost and quality The quoted volume espoused the doctrine of neutral.

ity and is often credited with providing much of the intellectual impetus for educational

— N

Finance Reform A Review Aasesoment, 48 U of Cin L Rev 255, Tractenberg,

Sehool Finance Through State Constitutions Robinson v Cahill Points the Way,

Kutwers L Kev 165, Zelinsky Educational Equalization and Suburban Subsidie

ing the Suburbs Through Schoo! Finance Reform, 71 NW UL L Rev 161) Although we

believe the current record graphically demonstrates the differences in quality of educa:

tion hased on cost, we note that the quotation relied on by Justice Hormins continues

with the following “We regard the flerce resistance by rch districts to reform as

adequate testimony to the relevance of money Whatever it is that money may be

thought to contribute to the education of children, that commodity is something

A65

tion clause of the State Constitution on the ground that

additional litigation may ensue in other areas of govern-

mental concern (see Serrano v Priest , 5 Cal 3d 584, 613.

614, supra). Furthermore, in terms of equal protection,

education has qualities of constitutional uniqueness be-

cause it has not been delegated to municipal or local

government; rather, it is a “State function to be kept

separate and apart from all other local or municipal func-

tions” (Lanza v Wagner, 11 NY2d 317, 326, app demd 371

US 74; NY Const, art IX, §3, subd fa, par I see Matter of

Board of Educ. City of New York, 41 NY 2d 535, Matter of

Divisich » Marshall, 281 NY 170; People ex rel. Wells &

Newton Co. v ony 232 NY 125; Matter of Emerson v

Buck, 230 NY 380; Gunnison v Board of Educ., 176 NY 11).

We also disagree with our colleague's conclusion that the

plaintiffs’ municipal overburden argument is flawed be-

cause this court lacks the power to decide whether there

has been a fair division of municipal resources as between

various services. As Justice WEINSTEIN notes in his elo-

quent concurrence, we believe that the record presents

compelling proof that problems of the central cities are

seated

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