# Appendix — Board of Education v. Nyquist

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0998%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1138

## Text

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 st

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0998%3A2. Public record. Not legal advice.