Paynter v. New York Brief Amicus Curiae

    IJPENNIS PARKER - Paynter Amicus Brief to Ct. App.(v4).doc Page 1 I

COURT OF APPEALS 
STATE OF NEW YORK
............. .................................. - ............................... x
AMBER PAYNTER, et al., on behalf of
themselves and all others similarly situated, Monroe County Clerk’s

: Index No. 10280/98
Plaintiffs-Appellants,

- against -

STATE OF NEW YORK, et al.,

Defendants-Respondents.

X

BRIEF AMICUS CURIAE ON BEHALF OF the 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

AND THE NEW YORK CIVIL LIBERTIES UNION........ 1 — ...... .

AMICI CURIAE STATEMENT OF THE CASE

Attainment of the fundamental skills necessary to participate in civil society
|

is more than simply an aspirational goal. Providing every child with the opportunity to 

obtain a “sound basic education” is a State obligation, guaranteed by the Education
§

Article (Article XI, § 1) of New York's Constitution. Plaintiffs-Appellants (hereafter,

“Plaintiffs”) have more than adequately alleged that the State is not providing the 

schoolchildren within the Rochester City School District (“RCSD”) with an opportunity 

for a sound basic education. By every standard measurement of academic performance 

used to assess student achievement in RCSD, the opportunity available to RCSD falls far
:

below the minimal guarantees of the Education Article:

Many RCSD students fail to reach even the minimal standard of scholastic 
performance.

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The vast majority of RCSD students fail the Regents Examinations.

The vast majority of RCSD students fail to receive Regents Diplomas.

The Dropout Rate of RCSD students is alarmingly high.

The RCSD retention rate for ninth graders is among the worst in the United
States.

Less than 2 out of 10 RCSD students go on to college.

See Compl. 179-236. The State does not contest these appalling outcomes, in fact 

most are drawn from published State data. Nor does the State contest the conclusions to 

be drawn from these outcomes: by every standard measurement, RCSD is failing -  by a 

wide margin -  to provide its students with the sound basic education to which they are 

entitled.

RCSD’s educational failure is directly attributable to a State districting 

system that has captured and perpetuated economic and racial segregation. Ninety 

percent of the RCSD students are impoverished, and 80% are African-American and 

Latino. See Second Amended Complaint, dated April 12, 2000 (“Compl.”) at 242,

265. RCSD district lines have been drawn and maintained under State law despite the 

State’s knowledge, supported by dozens of studies, research and data, that the failure of 

RCSD’s students to obtain a sound basic education is directly attributable to such extreme 

segregation.

In the face of this proof, the Fourth Department held that Plaintiffs could 

not assert a “viable cause of action” because the State’s districting system was 

“constitutionalized” by the Education Article. Pavnter v. State, 290 A.D.2d 95, 102 (4th

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Dep’t 2001). The Fourth Department thus found that the Education Article, and the 

obligations it imposed upon the State, is frozen in 1894, when it was adopted. Just as 

public education in New York State today has evolved considerably from what it was in 

1894, so, too, has the State’s obligations to provide for our children’s education evolved 

along with it. To hold otherwise would be to constitutionalize failure.

The Appellate Division’s dismissal of Plaintiffs’ claims was also based 

upon a dangerous misreading of this Court’s precedents, particularly this Court’s holding 

in Campaign for Fiscal Equity, Inc, v. State (“CFE”), 86 N.Y.2d 307 (1995). Rather than 

allow Plaintiffs the chance to prove their well-pleaded claims, the Appellate Division re­

defined what a well-pleaded Education Article claim must allege. According to the 

Appellate Division, an Education Article claim can only arise from allegations of 

inadequate facilities and services. CFE. however, was a funding case, and its focus was 

therefore on those items, like facilities and services, that funding provides. This Court 

expressly steered clear of exhausting the pleading parameters of the Education Article 

claim.

The State’s obligation to provide “the opportunity of a sound basic 

education” goes beyond adequate facilities and sendees. The Appellate Division missed 

this point, and therefore summarily rejected Plaintiffs’ proof upon a cramped reading of 

CFE that should be overturned.

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Argument

I .

PLAINTIFFS state A CLAIM FOR A 
VIOLATION OF THE EDUCATION ARTICLE

Providing every child with the “opportunity to obtain a sound basic

education” is a State obligation, guaranteed by the Education Article (Article XI, § 1) of

New York’s Constitution. See CFE. 86 N.Y.2d at 316. This Court held in CFE that

whether the State has satisfied that “constitutional concept and mandate” depends upon

the “discovery and the development of a factual record.” CFE. 86 N.Y.2d at 317. In

contrast, the Appellate Division’s premature dismissal of Plaintiffs’ claims at the pleading

stage rests on mistaken notion that: (1) a system of public education that was

“constitutionalized” in 1894 is immune from challenge today; and (2) CFE stands for the

proposition that an Education Article claims may only arise from allegations of

inadequate facilities and services. Both grounds are erroneous.

A. The System of Public Education Must be
Considered in Light of Current Circumstances

In its decision below, the Fourth Department held that

the system of public education that plaintiffs challenge is the very system 
that was “constitutionalized” by the Education Article . . . .  Plaintiffs cannot 
assert a viable cause of action under the Education Article by attacking the 
very system that was constitutionalized by that article.

Paynter, 290 A.D.2d at 102. The Court adopted this reasoning from Reform Educational

Financing Inequities Today (“REFIT”) v. Cuomo. 86 N.Y.2d 279, 284 (1995), and in

turn, incorrectly applied it to this case. In REFIT, the Court held that the Education

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Article was enacted so as to “constitutionalize” a system of common schools that was 

already in existence, thereby imposing on the legislature the “absolute duty to provide a 

general system of common schools.” Id. at 284. Because the system in place at the time 

of the Education Article’s enactment in 1894 did not provide for “equal educational 

opportunity,” as the Plaintiffs argued, this Court upheld the dismissal of Plaintiffs’ 

claims. Id.

Applying the above reasoning to the instant matter goes too far. Here, 

unlike in REFIT, Plaintiffs do not challenge the fact that the Education Article mandates 

only an “adequate” education or a “sound basic” education, and not an “equal” education, 

as a basic right of all public schoolchildren in the State. Plaintiffs instead challenge a 

State districting system that, in RCSD, has deprived children of the opportunity to receive 

a sound basic education. Regardless of what districting yielded in New York State in 

1894, today in Rochester it yields systemic failure. The Education Article may have 

taken its first step in 1894, but it has not stood still since then, nor can the State well 

afford to when the cost of denying generations of RCSD students the basic skills they 

need to participate in the very civil society our Constitution is meant to promote.

In Brown v. Board of Education, the Supreme Court refused to measure

constitutional guarantees by outdated standards that should no longer be held applicable:

In approaching this problem, we cannot turn the clock back to 1868 when 
the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was 
written. We must consider public education in the light of its full 
development and its present place in American life throughout the Nation.
Only in this way can it be determined if segregation in public schools 
deprives these plaintiffs of the equal protection of the laws.

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Brown v. Bd. of Educ., 347 U.S. 483, 492-93 (1954). The Constitution itself has never

been viewed as the Fourth Department would have it. On the contrary:

the Constitution is not a static document whose meaning on every detail is 
fixed for all time by the life experience of the Framers. We have 
recognized in a wide variety of constitutional contexts that the practices that 
the practices that were in place at the time any particular guarantee was 
enacted into the Constitution do not necessary fix forever the meaning of 
the guarantee.

Marsh v. Chambers. 463 U.S. 783, 816 (1983); see also Trop v. Dulles. 356 U.S. 86, 100- 

101 (1958) (“[T]he words of the [Eighth] Amendment are not precise, and [their] scope is 

not static. The Amendment must draw its meaning from the evolving standards of 

decency that mark the progress of a maturing society”); Ullmann v. United States. 350 

U.S. 422, 439 n. 14 (1956) (“[T]he provisions of the Constitution are not mathematical 

formulas having their essence in their form; they are organic, living institutions 

transplanted from English soil.”) (quoting Gompers v. United States. 233 U.S. 604, 610 

(1914)).

The Education Article must be applied to contemporary circumstances in 

New York State as an “organic, living institution”. Demographics in Monroe County 

and throughout the State have changed dramatically since 1894. In 1890, for example, 

there were only 6,781 African-American students in New York State, less than 1% of the 

total student population that included 1,035,380 white students. See 1890 U.S. Census 

Data. In Monroe County in 1890, the 103 African-American students represented less 

than one-half of 1% of the total student population. Id. By contrast, according to 2000 

census data, there were 766,636 African-Americans and 738,249 Hispanic/Latinos aged

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!---------------------- -------------------------------------------------------- —------------— --------------------------------------------------------------------------------------------------------------------------— -------------

5-19, as compared to 2,462,459 whites, or almost 38% of the total population aged 5-19 

in the State. See 2000 Census of Population and Housing, New York State Data Center. 

In Monroe County in 2000, there were 31,583 African Americans and 12,749 

Hispanic/Latinos aged 5-19, as compared to 115,865 whites, or almost 27% of the total 

population aged 5-19 in the County. Id. Although not an issue in 1894, the racial 

makeup of New York’s school districts is definitely an issue now.

The drafters of the Education Article created a system of free public 

schools that would produce individuals capable of functioning in the contemporary 

society in which they lived. As the Committee which drafted the article stated in its 

report:

No desire to confine the new Constitution to the narrowest possible limits 
of space should prevent the adoption of an enactment declaring in the 
strongest possible terms the interest of the State in its common schools. 
Whatever may have been their value heretofore, and language has been 
strained to the utmost in applying to them terms of praise, their importance 
for the future cannot be overestimated. The public problems confronting 
the rising generation will demand accurate knowledge and the highest 
development of reasoning power more than ever before, and, in view of the 
State’s policy, as to higher education, to which reference will presently be 
made, too much attention cannot be called to the fact that the highest 
leadership is impossible without intelligent following, and that the 
foundation of our educational system must be permanent, broad and firm, if 
the superstructure is to be of real value.

Revised Record of the Constitutional Convention of the State of New York, May 8, 1894 

to September 29, 1894 at 695 (1900). This declaration of policy and intent would be 

meaningless if New York’s system of public education was not only “constitutionalized” 

in 1894, but was frozen in 1894, and immunized from scrutiny by future generations

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seeking that article’s promise of an opportunity to become a meaningful participant in 

civic affairs.

B. The Appellate Division Misread CFE

The dismissal of Plaintiffs’ Education Article claim rests upon a misreading

of CFE. The Appellate Division held that “[b]ecause plaintiffs fail to allege that

minimally acceptable educational services and facilities are not being provided in RCSD,

they fail to state a cause of action under the Education Article.” Paynter v. State. 290

A.D.2d 95, 102 (4th Dep’t 2001). The Fourth Department reduced the rights secured by

the Education Article to a single passage tom out of context from CFE:

If the physical facilities and pedagogical services and resources made 
available under the present system are adequate to provide children with the 
opportunity to obtain these essential skills, the State will have satisfied its 
constitutional obligation.

CFE, 86 N.Y.2d at 316. Based upon this misguided premise, the Appellate Division held 

that because it did not allege inadequate services and facilities, Plaintiffs’ complaint must 

have relied only upon dismal outcomes and academic failure. Paynter v. State. 290 

A.D.2d 95, 101 (4th Dep’t 2001).

Contrary to the Appellate Division’s holding, the Court in CFE does not 

define the limits of the Education Article. That CFE involved a challenge to the State’s 

financing system is a fact that cannot be lost sight of. Plaintiffs’ “pertinent pivotal claim” 

was that the State’s financing system did not provide them with the opportunity to obtain 

a sound basic education. Id. at 317. Plaintiffs supported this claim with fact-based 

allegations of inadequate physical facilities, curricula, books and qualified teachers -  in

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other words, the things money can buy. CFE. 86 N.Y.2d at 319. Confronted with 

allegations of inadequate financing, the Court held that if the State could nonetheless 

show that “the physical facilities and pedagogical services and resources made available 

under the present system” were adequate to provide children the opportunities to acquire 

the basic skills essential to civic participation, then the State had met its constitutional 

duty. Id. at 316.

By focusing upon adequate facilities and services, the Court in CFE limited 

its decision to the narrow issue before it under traditional principles of constitutional 

adjudication. See, e ^ ,  Moore v, Regan. 453 U.S. 654, 660 (1981) (“We are confined to 

the resolution of the dispute presented to us.”); Ashwander v. Tennessee Valiev 

Authority, 297 U.S. 288, 339 (1936) (“We limit our decision to the case before us, as we 

have defined it.’ ). The Court therefore did not hold that the exclusive way the State 

could fail to meet its obligation under the Education Article was by failing to provide 

adequate funding. A systemic failure to provide children with an opportunity to acquire 

fundamental life skills, even if it is caused by something other than inadequate facilities 

and services, still violates minimal constitutional requirements.

Recalling Levittown Union Free School District v. Nvauist. 57 N.Y.2d 27 

(1982), CFE states that “the Education Article imposes a duty on the Legislature to 

ensure the availability of a sound basic education to all the children of the State.” CFE.

86 N.Y.2d at 315. The Education Article is obligatory, not hortatory, establishing “a 

constitutional floor” beneath which the State must not let its public schools fall. Id. For

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these purposes, a sound basic education consists of, at least, a level of basic literacy, 

calculating, and verbal skills. Id. at 316. All students must have at least a genuine 

opportunity to acquire these fundamental skills. This opportunity can be denied by 

causes attributable to the State other than inadequate facilities and services.

After defining the general “constitutional floor with respect to educational 

adequacy” that is applicable to ah Education Article cases, this Court made it clear that, 

at the pleading stage:

[w]e do not attempt to definitively specify what the constitutional concept 
and mandate of a sound basic education entails. Given the procedural 
posture of this case, an exhaustive discussion and consideration of the 
meaning of a “sound basic education” is premature. Only after discovery 
and the development of a factual record can this issue be fully evaluated 
and resolved.

Id. at 317. This Court did not attempt to set forth all the ways in which the State could 

fail to provide a sound basic education. Instead, a general “template” based upon the 

attainment of basic fundamental skills was created. Id. The Court summed up as 

follows:

Taking as true the allegations in the complaint, as we must, plaintiffs allege 
and specify gross educational inadequacies that, if proven, could support a 
conclusion that the State's public school financing system effectively fails 
to provide for a minimally adequate educational opportunity. We think it 
beyond cavil that the failure to provide the opportunity to obtain such 
fundamental skills as literacy and the ability to add, subtract and divide 
numbers would constitute a violation of the Education Article.

CFE, 86 N.Y.2d at 319 (emphasis added). Remanding, the Court instructed the trial court

“to evaluate whether the children in plaintiffs’ districts are in fact being provided the

opportunity to acquire” those basic, fundamental skills. Id- at 318.

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Plaintiffs’ allegations fall squarely within CFE’s admonition that “a system 

which failed to provide a sound basic education would violate the Education Article.” 

CFE, 86 N.Y.2d at 316 (citing Nyquist. 57 N.Y.2d at 48). Plaintiffs allege, as CFE 

recognizes, that inadequate funding is not the sole cognizable cause of the failure, 

particularly to “at risk” school districts such as the RCSD. In “at risk” districts such as 

RCSD, there are other factors within the State’s control. The State must be held 

accountable for the consequences of not only inadequate funding, but for other aspects of 

the State’s educational system, including state-created districts and residency laws.1

In sun, Plaintiffs were denied the chance to prove their well-plead claim 

because the Appellate Division wrongly prejudged the merits of those claims. This has 

occurred despite the fact that the Complaint contains uncontroverted proof that RCSD is 

in crisis, with its students failing to receive even the most fundamental skills. As in CFE. 

the Plaintiffs should have the opportunity to prove the “causal link” between the State’s 

actions and inactions and the failure of RCSD to offer its students a sound basic

Justice Green cogently summarized this point in his dissent in this case:

The majority concludes that plaintiffs have failed to state a viable cause of action 
precisely because they do not attribute the wholesale failure to provide such 
minimally adequate educational services and facilities. That conclusion, in my 
view, rests upon an overly narrow conception of the State’s obligation under the 
Education Article “to offer all children the opportunity of a sound basic 
education” (Campaign for Fiscal Equity v. State o f New York, supra, at 316, 631 
N. Y.S.2d 565, 655 N.E.2d 661). Adequate educational facilities and services do 
not themselves constitute a sound basic education; rather they are necessary 
conditions for the provision of a sound basic education.

Pavnter. 290 A.D.2d at 105 (Green, J.P., dissenting). Students can be provided with minimally 
adequate buildings and books but still be denied the opportunity to receive a sound basic education, 
through no fault of their own and due to circumstances the State has helped create and perpetuate.

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r ------------------------------------------------------------- — ------------------------------------------------------------------------------------------------ ---- -------------------------------------- --— ______________________________________________________________--------------------------------—

education.

C. Even Under an Erroneous Construction of CFE, Plaintiffs 
Adequately Alleged a Claim Under the Education Article

Even if the Fourth Department were correct that an Education Article claim

must contain allegations of inadequate facilities and services, Plaintiffs have satisfied that

requirement. The Complaint alleges that the educational resources in RCSD are

inadequate to overcome the pressures brought to bear on the system by high

concentrations of poverty and racial isolation. See Compl. f f  307-15. The problem is

double-edged. Even as the concentration of poverty and racial isolation make it harder to

deliver a sound basic education in districts like RCSD, the level of services in such

districts falters. See, ej^, Gary Orfield et al.. Deepening Segregation in American Public

Schools: A Special Report from the Harvard Project on School Desegregation. 30 Equity

and Excellence in Education. 5, 11 (1997) (describing how high-poverty schools “tend to

draw less qualified teachers and to hold them for shorter periods of time. They tend to

have to invest much more heavily in remediation and much less adequately in advanced

and gifted classes and demanding materials.”); Abbott v. Burke. 149 N.J. 145, 177, 693

A.2d 417, 433 (N.J. 1997) (“The poor educational achievement levels evident in inner-

city schools results in part from the absence of needed educational programs, the lack of

qualified teachers, and the existence of decrepit, dangerous, and overcrowded

facilities.”). As Harvard sociologist Gary Orfield has made clear:

High poverty schools have come to devote far more time and resources to 
family and health crises, security, children who come to school, not 
speaking standard English, seriously disturbed children, children with no 
educational materials in their homes, and many children with very weak

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educational preparation. These schools tend to draw less qualified teachers 
and to hold them for shorter periods of time. They tend to have to invest 
much more heavily in remediation and much less adequately in advanced 
and gifted classes and demanding materials. The levels of competition and 
peer group support for educational achievement are much lower in high 
poverty schools. Such schools are viewed much more negatively in the 
community and by the schools and colleges at the next level of education as 
well as by potential employers.

Gary Orfield et ah, Deepening Segregation in American Public Schools: A Special 

Report from the Harvard Project on School Desegregation, supra, at 11.

The Complaint therefore satisfies even the lower courts’ narrow view of the 

Education Article. Plaintiffs describe a district in depression, a place where, by every 

accepted measurement, educational achievement has been pushed far below the 

constitutional floor; where a 90% poverty rate and a 80% minority population have 

overwhelmed the ability of its schools to properly transmit basic and essential life skills, 

where needed educational programs are lacking because available funds must be spent on 

remedial and security services; where qualified teachers, frustrated by not being able to 

teach, give up and leave; where facilities are strained by overcrowding; and where the 

attainment of a thorough and efficient education is strangled by the effects of 

concentrated poverty. It is only merely the existence of these social ills; it is their 

concentration within the RCSD that defeats the fundamental right to education in that 

district. Most importantly, for purposes of this appeal, the complaint adequately alleges 

that the State has caused this undue and unmitigated concentration of social and 

educational deficits in the RCSD. It is the impermeable districting, established by state 

law and policy, that concentrates that poverty and attendant social problems in the

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district, and that blocks the dilution of that concentration by the introduction of a more 

mixed student population in those schools. In enforcing this deleterious concentration, 

the State has injected a negative “input” into the educational system, in the same way as 

if it withheld the positive “input” of adequate financing.2

II.

where public school children are not 
receiving a sound basic education due to racial 

and economic segregation caused at least in part_ 
by state action and inaction, the state must step in

Sidestepping the overwhelming evidence of the educational catastrophe in

the RCSD, the Appellate Division opined that “[tjhere are myriad reasons for academic

failure that are beyond the control of the State.” Paynter. 290 A.D.2d at 101. The causes

of RCSD’s wholesale failure are so deeply entwined in the policies and practices o f the

State as to guarantee continued denial of a sound basic education unless the State acts.

Sidestepping the Education Article will not suffice.

A. Children in the RCSD Are Not Receiving an
Opportunity to Obtain a Sound Basic Education

Plaintiffs have adequately asserted that RCSD students are being denied a 

sound basic education. They have also asserted that this educational failure is attributable 

to poverty concentration and racial isolation in RCSD schools. Finally, they have 

asserted that the State has failed to attempt to remedy this constitutional violation in

The irony of the Fourth Department’s observation that local school districting was 
constitutionalized” is that it acknowledges the State’s role in bringing about the concentration that 
lies at the heart of plaintiffs complaint.

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contravention of its obligation under the Education Article “to offer all children the 

opportunity of a sound basic education.” CFE. 86 N.Y.2d at 316. These allegations, 

which are supported by ample and uncontroverted evidence, satisfy the general 

“template” for cognizable Education Article claims set out in CFE and, therefore, 

“support a conclusion that the State's public school system effectively fails to provide for 

a minimally adequate educational opportunity.” Id. at 319.

1. The RCSD’s Schools Are In Crisis

The trial court accurately described RCSD's educational outcomes as

“dismal.” Paynter, 187 Misc. 2d at 233. The Appellate Division similarly recognized

Plaintiffs’ allegations of “wholesale academic failure” within the RCSD. Paynter, 290

A.D.2d at 101. These allegations are not trivial. Justice Green recognized:

Plaintiffs have submitted evidence that, by virtually every measure of 
educational achievement, i.e., standardized test scores, dropout rates, 
retention rates, Regents examination results, Regents diploma award rates 
and college attendance rates, the performance of RCSD students is 
“dismal.”

Id. at 104; see also Compl. f  4.

Several standard measurements of academic performance, based on data 

collected and published by the State, were used to assess student achievement in RCSD. 

Compl. flf 179-236. By all of these measurements, the RCSD performance was grossly 

inadequate, far below that of suburban Monroe County schools and far below minimally 

acceptable standards for students in New York State. See Quality Counts: 1998: The 

Urban Challenge (Education Week Jan. 1998) (“Quality Counts”!. Concentrated Poverty

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at 1 ("Concentrated school poverty is consistently related to lower performance on every 

educational outcome measured.").

Pupil Evaluation Program ("PEP") Test. PEPs are Statewide elementary 
school exams with a minimal standard of performance called the State 
Reference Point ("SRP"). In 1996-97, 17% of RCSD third-graders failed to 
achieve the SRP on the PEP reading test, a rate of failure four times as high 
as the surrounding suburban districts. On the sixth-grade reading test that 
year, 20% of RCSD students fell below the SRP, a failure rate o f almost 
seven times that of the surrounding districts. Compl. Iff 221-27. In 1999,
76% of RCSD students failed to meet the reading SRP. See R.366, Chart T 
In fact, with the exception of four small districts with an average student 
population of only 741, RCSD's performance was the worst in the State 
R.367.

Regents Exams. As of 1996, all entering high school freshmen are 
required to pass Regents exams in five core subject areas to be eligible to 
graduate. On average across all five-subject areas, only 20.2% of RCSD 
students passed their Regents exams in 1996-97, compared to 68.8% o f the 
students in the other Monroe County districts. Compl. f f  200-210. See 
R.369, Chart 4. In 1999, RCSD Regents performance was the worst in the 
State among districts with at least 1,000 students. R.369.

Regents Diploma. The attainment of Regents diplomas, which will soon 
represent New York's minimum graduation threshold, shows similarly 
inadequate results. In 1996-97, 60% of suburban district graduates received 
Regents diplomas, compared to only 18% of RCSD graduates. Worse still, 
the number of RCSD Regent's diploma graduates represented only 5% of 
the freshmen class of 1993. In the suburban districts, the Regent's diploma 
class of 1997 was 50% as large as the 1993 freshman class -  a Regent's 
diploma rate 10 times higher than RCSD.

Dropout. In 1996-97, the RCSD dropout rate of 7% was five times higher 
than the suburban rate of 1.4%. Compl. f  185. Despite accounting for only 
31% of Monroe County's students, RCSD accounts for 68% of its dropouts 
Compl. 186. See R.371, Chart 6.

Retention. Retention rates measure the percentage of ninth-graders who 
proceed through the twelfth grade. The RCSD retention rate is among the 
worst in the country. Compl. f  188. In 1997, RCSD graduated a class that 
was 73% smaller than the freshman class of 1993. The surrounding 
districts, in contrast, lost only 16% of their class. Compl. 192-93.

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College Entry. Of those few who do make it through the RCSD system, 
and the fewer still who receive Regents diplomas — how many actually go 
on to college? Of the 27% of RCSD students who stayed in high school 
from 1993 to 1997, only 58% of those “survivors” went on to college.
Thus, only 15% of the 1993 class eventually entered college. In the rest of 
Monroe County public schools, 70% of the 1993 freshman class went on to 
college. RCSD graduation rate pales not only in comparison to its 
surrounding districts (83%), but also to every other large district in the 
State. Compl. 229-35.

Indeed, the State has admitted, by its own criteria, that RCSD students are 

not receiving an adequate education. Regent's tests, for example, which RCSD students 

fail at an alarming rate, establish a minimum standard of core subject competence.

Compl. f  212. Former State Commissioner Thomas Sobol testified below that Regents 

exams and standards are the very embodiment of the "sound basic education" required by 

the Education Article. R.427-28. In addition, the SRP measured on PEP tests, which 

RCSD students also fail at an alarming rate, establish minimum standards of educational 

progress. The State, which is required by law to provide remedial services to students 

who score below the SRP, has acknowledged that those students are "not making 

satisfactory progress" and "may not be prepared to succeed in required high school 

courses." Compl. fflf 219-20.

While the Court in CFE held that “[pjroof of noncompliance with one or 

more of the Regents’ or Commissioner’s standards may not, standing alone, establish a 

violation of the Education Article,” CFE. 86 N.Y.2d at 317, Plaintiffs’ allegations of 

pervasive educational failure in virtually every quantifiable area -  allegations that must be 

taken as true -  support the conclusion that RCSD students are not receiving an education

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that will allow them to “eventually function productively as civic participants capable of 

voting and serving on a jury.” Compl. f  236.

2. Poverty Concentration and Racial Isolation Permeate the RCSD

A State policy or practice that affects the educational environment need not 

be strictly financial, it could relate to any of a number of areas in which the State 

determines how public schooling occurs in New York. Districting, the geographical 

division of New York into self-contained zones from which public education is to be 

centrally administered, is one such State system.

How school districts are established is as much a State-controlled system as 

how school funding is distributed. Education law dictates not only what constitutes a 

district, see N.Y. Educ. Law § 2(16) (McKinney 2000), and how district lines are 

demarcated and recorded, id  § 2215, but how districts are managed, id  at Art. 52, 

annexed id  §§ 1705, 1802, dissolved, id  § 1505, consolidated, id  §§ 1524, 1526, and 

centralized, id  §§ 1801, 1804. Furthermore, the authority of the State -  through the 

Legislature, Commissioner or Board of Regents -  to intervene in matters regarding the 

configuration of school districts, in particular their racial composition, is well established. 

See, e.g.. Board of Ed. of City Sch, Dist. of City of Newburgh v. Nvquist. 69 A.D.2d 182 

(3dDep't 1979); Etter v, Littwitz. 49 Misc. 2d 934 (Sup. Ct. Monroe Cty. 1966), affd. 28 

A.D.2d 825 (4th Dep't 1967); Vetere v. Allen. 15 N.Y.2d 259, cert, denied. 382 U.S. 825 

(1965). Particularly significant are the State's residency requirements, which allow only 

students living within a district to attend the schools there for free. N.Y. Educ. Law §

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3202 (McKinney 2000). As Plaintiffs have also pleaded, State laws allowing non­

residents to attend schools outside their district if they pay tuition do nothing to relieve 

impoverished families trapped in failing districts. These families cannot afford to pay 

out-of-district tuition, and as those who can afford it send their children elsewhere, the 

socio-economic isolation of RCSD schools only worsens. Compl. | |  291-98.

The State’s districting system as well as the laws, policies, and practices

implementing that system have fostered the RCSD’s extreme racial and economic

isolation. As one scholar recently noted:

It bears emphasizing that the racial and economic segregation that exists in 
America's schools typically occurs between districts rather than within the 
same district. A recent study of all schools that reported data on poverty 
and race -  slightly over 33,000 schools -  revealed that most poor primary 
school students are clustered in majority-poor districts. The same is true for 
both African-American and Hispanic students; most attend schools within 
majority-minority school districts.

James E. Ryan & Michael Heise, The Political Economy of School Choice. 111 Yale L.J. 

2043, 2096 (June 2002); see also George C. Galster, Polarization. Place, and Race 71 

N.C. L. Rev. 1421, 1439 (1993) (“Nationally, two-thirds of African-American students 

and nearly half of other minority students attend primary and secondary schools in 

central-city districts”). Districting in and around Rochester has created a district, RCSD, 

that is defined by its extreme poverty concentration and racial isolation.

RCSD is oppressively poor. Based on the State Department of Education's 

own interpretation of the Census Poverty Index, the poverty rate for RCSD is nine times 

the average rate among other Monroe County school districts. R.377, Chart 11. The

.

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State has also determined that school poverty concentration at or above 81% is 

"exceptionally high," Compl. ^ 243, yet over 89% of RCSD students live in poverty.

R 378, Chart 12. In surrounding districts, only 16% of the students are poor. Compl. f  

245; R.378. Although only 31% of Monroe County's public school students live in 

Rochester, 72% of Monroe's poor children, or more than twice the expected rate, are 

schooled in RCSD. R.379, Chart 13.

RCSD is racially isolated. Indeed, the public school system in the 

Rochester metropolitan region is among the most segregated in the nation. Comp. U 266. 

Again, a few figures suffice to tell the tale. Eighty percent of RCSD students are Black 

or Latino. In the surrounding districts, 91% of the students are white. Compl. f  267-268; 

R.380. In all of Monroe County, there are 39,000 non-white students, yet over 30,000, or 

80%, of the County's minorities, go to school in RCSD. The remaining 17 Monroe 

County school districts have fewer than 8,000 non-white students in total. R.381, Chart 

15.

Plaintiffs concede that the reasons for racial and economic segregation are 

numerous and complex. See Ryan, Schools. Race, and Money, supra, at 277 (“While 

there is hardly room to debate the extent of residential segregation, there are ample 

grounds for disagreement regarding the historical and continuing causes of that 

segregation”). Yet it cannot be seriously questioned that the State’s districting system, as 

well as the laws, policies and practices in furtherance of that system, have perpetuated 

segregation among the State’s school districts. As Dr. Orfield has noted, housing policy

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has greatly influenced racial segregation in urban schools:

One of the clearest patterns of official discrimination in housing has been 
the selection of segregated housing sites and the assignment of tenants in 
ways that produced racially defined communities, often served by 
segregated schools. Many cities went so far as to build schools for projects. 
Others gerrymandered school attendance districts to keep the project 
children out of white schools. A 1994 HUD report concludes that the 
public housing tenants living in the “poorest tracts” are “almost exclusively 
(91 percent) African American. Most white subsidized tenants lived in 
low-poverty areas where the proportion of residents living in public housing 
was one-fiftieth that of the poorest tracts. Black public housing tenants 
often attend inferior schools almost totally segregated by poverty as well as 
race. A significant portion of total black enrollment in some central city 
school districts live in public and subsidized housing.

Gary Orfield, Segregated Housing and School Resegregation, in Dismantling

Desegregation 307 (Gary Orfield & Susan E. Eaton eds., 1996). Thus, any argument that

the State bears no responsibility for failing to attempt to remedy the effects of racial and

economic segregation upon educational achievement within the RCSD is simply false.

See Sheff v, O’Neill, 238 Conn. 1, 39-40, 678 A.2d 1267, 1288 (Conn. 1996) (violation

of constitutional right to an unsegregated educational environment “anses out of state

action and inaction that, prima facie, violates the plaintiffs’ constitutional rights,

although that segregation has occurred de facto rather than de jure) (emphasis added).

3. Poverty Concentration and Racial Isolation are the
Primary Cause of RCSD’s Extreme Educational Failure

There is no dispute that a deep causal connection exists between racial

isolation and concentration of poverty in schools and inadequate educational conditions.

As Plaintiffs have clearly alleged and amply supported, students in high-poverty schools

are far more likely than students in low-poverty schools to perform below minimally

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■ DENNIS PARKER - Paynter Amicus Brief to Ct. App (v4).doc Page 22;

acceptable standards. Compl. Ifil 272-56; R.362-438. As discussed below, the State has

for many years acknowledged the dangerously depressed outcomes of impoverished 

students, a group that is overwhelmingly minority. But because the lower courts 

incorrectly interpreted Plaintiffs’ Education Article claim and mistakenly applied CFE. 

the significance of this connection was lost.

a. Poverty Concentration and Racial Isolation have
a “Pervasive and Invidious” Impact on Public Schools

A large and growing body of scholarly research shows that poverty 

concentration and racial isolation seriously impairs achievement. See, e.g.. Quality 

Counts, Concentrated Poverty at 1 (“Concentrated school poverty is consistently related 

to lower performance or every educational outcome measured.”). Studies of poverty 

concentration grew out of earlier studies into the effect of individual and community 

poverty on education outcomes. Seminal among these is James Coleman's 1966 report, 

Equality of Educational Opportunity (U.S. Department of Health, Education, and 

Welfare) (“The Coleman Report”!. Still regarded as “the most important education study 

of the twentieth century,” The Coleman Report concluded that, beyond individual student 

status, “a school's socioeconomic background is a strong determinant of its students' 

achievement.” The Coleman Report at 21: All Together Now at 26. Since then, 

numerous scholars ranging across the political spectrum have agreed with Coleman. 

Indeed, dozens of studies since The Coleman Report conclude that concentrated poverty 

inevitably depresses achievement on a school-wide and a district-wide basis. See Stephen 

J. Schellenberg, Concentration of Poverty and the Ongoing Need for Title I in Hard Work

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for Good Schools: Facts Not Fads in Title I Reform (The Civil Rights Project, Harvard 

University 1998) (“Concentration of Poverty”! (“[T]he link between poverty and low 

achievement has become an unquestioned assumption”); All Together Now at 26 n.9-10.

One such influential report is Poverty. Achievement and the Distribution of 

Compensatory Education Services (U.S. Department of Education Jan. 1986) (“Poverty, 

Achievement and Distribution”) prepared by Mary Kennedy, et al., pursuant to a 

Congressional mandate to assess school funding. Tellingly, this landmark legislation is 

itself predicated in part on the distribution of poverty within school districts. The report 

found that “schools with large portions of poor students were far more likely to exhibit 

lower average achievement scores than other schools.” Id  at 3-4. Depressed achievement 

is caused by “the intensity of the poverty experience,” including “the concentration of 

poor children in school,” which is “strongly related” to educational outcomes. Id  at 6.

In sum, the higher a school's concentration of poverty, the lower its academic outcomes.

Id at 21. See Concentration of Poverty (review of interlocking studies leads to “the 

overwhelming conclusion that the degree to which poor children are surrounded by other 

poor children -  both in their neighborhood and in their school -  has as strong an effect on 

their achievement as their own poverty.”); All Together Now at 28-29 (“Achievement is 

also closely linked to attainment: those who do not do well academically are most likely 

to drop out, and those who achieve high levels of academic success are most likely to 

pursue college and graduate degrees.”).

Poverty concentration is inextricably bound with race. See, e^g,, Gary

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DENNIS PARKER - Paynter Amicus Brief to Ct App (v4) doc

Orfield & John T. Yun, Resegregation in American Schools (Harvard University 1999) 

(“When African American and Latino students are segregated into schools where the 

majority of students are non-white, they are likely to find themselves in schools where 

poverty is concentrated.”); Ryan & Heise, The Political Economy of School Choice 

supra, at 2096 (“Where there is racial and ethnic isolation of minorities, there is also 

usually concentrated poverty ”). As demonstrated above, in RCSD’s schools today, 80% 

of the students are non-white and 90% are impoverished. Such intense racial isolation, 

through its close association with poverty concentration, is closely linked to depressed 

achievement. As the Supreme Court of Connecticut recognized in Sheffv, O’Neill, 

“[rjacial and ethnic segregation has a pervasive and invidious impact on schools, whether 

the segregation results from intentional conduct or from unorchestrated demographic 

factors ” Sheff v. O’Neill, 238 Conn. 1, 33-34, 678 A.2d 1267, 1285 (Conn. 1996); see 

also Lee v. Nyquist, 318 F. Supp. 710, 714 (W.D.N.Y. 1970), affd, 402 U.S. 935 (1971) 

( [T]he elimination of racial isolation in the schools promotes the attainment o f equal 

educational opportunity and is beneficial to all students, both black and white.”).

b. The State Has Known for Years that the
Kind of Concentrated Poverty and Racial isolation 
that Permeates RCSD Leads to Educational Failure

The State does not challenge the existence of poverty concentration or 

racial isolation in RCSD. More tellingly, the State does not challenge the high correlation 

between these factors and educational failure. Nor can it: since at least the late 1980’s 

the State has tracked this close correlation, monitored the status of its high-poverty

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schools, and repeatedly warned that impoverished and minority “at-risk” students are not 

acquiring the basic skills needed to participate fully in society.

Plaintiffs expert Dr. John Klofas relied on data and measures provided hv 

the State Department of Education itself to show: (1) the inadequate outcomes in RCSD; 

(2) the concentration of poor and non-white students in RCSD; and (3) the high 

correlation between increasing poverty and minority concentration and decreasing 

achievement. R.362-99. Dr. Klofas concluded that “the State of New York has, on its 

own, identified school level poverty as the most significant factor in explaining school 

level outcomes.” R.382 (emphasis added). SeeR.382-88 at Charts 16-20.

Thomas Sobol, Commissioner of Education in New York from 1987 

through 1995, testified that the State was “fully aware, and fully convinced, that high 

poverty concentration in schools and districts creates gaps and problems in learning that 

seriously impair academic performance.” R.428. A study undertaken during 

Commissioner Sobol's tenure and attached to his affidavit below confirmed this link. 

R.430-38.

Moreover, as long ago as 1988, the State recognized that a growing divide 

existed between successful and failing schools. Contrary to the constitutional mandate 

for public education in New York, this divide is exacerbated rather than ameliorated by 

the public school system. See The Time for Assertive Action: School Strategies for 

Promoting the Education Success of At-Risk Children (October 1988) (“Assertive 

Action"). A State Task Force on the Education of Children and Youth At Risk found that

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“[t]wo different systems at education have been created in our State.” Id  at 2. Focusing 

on the dropout rate as emblematic of a system in crisis, the Task Force found that 

disproportionate numbers of poor and minorities among dropouts was “a strong 

indictment of some of our schools as institutions and their inability to provide meaningful 

educational experiences for all children.” Id. at 1. As the data discussed herein 

demonstrates, RCSD falls squarely on the wrong side of the widening educational divide. 

See also Youth Placed At Risk: A Statement of Policy and Recommended Action for 

Educating Children and Youth Placed At Risk (State Education Department July 1989) 

(addressing “the critical problem” of educating poor and minority children and youth 

placed at risk in New York State); State Education Department Memorandum on Regents 

New York City Strategy; Findings and Needs (March 9, 1994) (discussing findings on 

race and poverty and addressing needs of low-performing schools).

Importantly, the State has recognized not only that a public education 

divide exists, but that the State has contributed to the divide and should be responsible for 

attempting to resolve it. See Assertive Action at 27 (concluding that the risks for 

impoverished minorities are exacerbated by conditions “within the schools themselves,” 

that “accountability” for inadequate educational opportunities must be borne in part by 

the schools and the State, and that the Governor, the Legislature and the Board of Regents 

“have the obligation to appropriate adequate resources and enact legislation which will 

assist educators in promoting fundamental school improvement.”).

Ironically, while recognizing that a serious problem exists within the

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RCSD, the State has continued to maintain the status quo. As Plaintiffs allege:

For a number of years, the State of New York has been aware of: (i) the 
alarming academic performance of RCSD students, as compared with their 
suburban peers; (ii) the governmental forces that have created and 
maintained racially and economically isolated school districts, as well as 
residential communities, in the Rochester region; and (iii) the consequent 
need for substantial educational changes, within and across school lines, to 
end this pattern of isolation and inequality.

Compl. f  308. As discussed below, where the other political branches have failed to act,

it is precisely the job of the judiciary to identify the constitutional violation and direct

that such “substantial educational changes” be made.

B. It is the Province of the Courts 
to Enforce Constitutional Rights

Defendants have argued that decisions reflecting educational policy 

judgments are not cognizable by the Courts. That dubious proposition is inapplicable 

here. Where the State has created the “at risk” district, as well as the districting system 

and the laws, policies and practices that have fostered poverty concentration and racial 

isolation, and has up to now attempted to delay, defeat and hinder the vindication of 

constitutional rights, the courts have a duty to intervene and direct those who have stood 

idle to finally take action. Contrary to the Education Article and this Court’s 

jurisprudence, the lower courts abdicated that responsibility.

As alleged by Plaintiffs and confirmed in CFE. “the Education Article 

imposes a duty on the Legislature to ensure the availability of a sound basic education to 

all the children of the State.” CFE. 86 N.Y.2d at 315; Compl. Tf 311-12. Strictly 

speaking, where Plaintiffs have set forth adequate allegations that RCSD students are

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denied the opportunity to obtain a sound basic education due to the effects of racial and

economic segregation, and that such conditions have been fostered by State laws and

policies, that should end the inquiry on this motion to dismiss. This Court has recently

confirmed the importance of redress for constitutional violations, as follows:

[Constitutional guarantees are worthy of protection on their own terms 
without being linked to some common-law or statutory tort, and that the 
courts have the obligation to enforce these rights by ensuring that each 
individual receives an adequate remedy for violation of a constitutional 
duty. If the remedy is not forthcoming from the political branches of 
government, then the courts must provide it by recognizing a damage 
remedy against the violators much the same as the courts earlier recognized 
and developed equitable remedies to enjoin unconstitutional actions. 
Implicit in this reasoning is the premise that the Constitution is a source of 
positive law, not merely a set of limitations on government.

Brown v. State, 89 N.Y.2d 172, 187 (1996). Consistent with the above, Plaintiffs herein

seek vindication of their constitutional rights because the State has failed even to attempt

to take corrective action.

The judiciary, as noted by Dr. Orfield, is uniquely suited in these cases to 

facilitate change where the State has failed:

Courts have some special strengths -  removal from politics and the ability 
to stay with a complex issue long enough to implement change. Most urban 
school systems are crippled by bitter politics and the replacement of 
superintendents every two years or so. Courts are often not disrupting a 
stable and effective local educational structure but lending an element of 
continuity to a turbulent and sometimes chaotic institution in which no one 
addresses long-term issues.

Orfield & Eaton, Dismantling Desegregation, supra, at 350. Following this premise, the 

New Jersey Supreme Court has recognized that students within “special needs” or “at- 

risk” school districts (such as the RCSD) have “exceptional needs” that “must be

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confronted and overcome in order to achieve a constitutionally thorough and efficient 

education.” Abbott, 149 N.J. at 179, 693 A.2d 434. Indeed, even in complex cases, the 

judiciary cannot abdicate its responsibility in the face of a potential constitutional 

violation:

We consistently have recognized that no single remedy can assure the 
provision of a constitutionally thorough and efficient education to the 
children in the special needs districts . . . The judicial remedy is necessarily 
incomplete; at best it serves only as a practical and incremental measure 
than can ameliorate but not solve such an enormous problem. It cannot 
substitute for the comprehensive remedy that can be effectuated only 
through legislative and executive efforts. The finiteness of judicial power, 
however, does not diminish the judicial obligation to vindicate 
constitutional rights.

Abbott v, Burke, 149 N.J. 145, 189, 693 A.2d 417, 439 (N.J. 1997) (emphasis added) 

(citations omitted).

In this way, the State’s argument that education policy is committed to the

discretion of the executive and legislative branches misses the point. The judiciary does

not “trump the policy choices” of the legislature by identifying a possible constitutional

violation, but rather plays a vital role in effecting required change. The Court in Abbott

cogently described thejudiciary’s role in this regard:

The determination of appropriate remedial relief in the critical area of the 
special needs of at-risk children and the programs necessary to meet those 
needs is both fact-sensitive and complex; it is a problem, squarely within 
the special expertise of educators. A court alone cannot, and should not, 
assume the responsibility for independently making the critical educational 
findings and determinations that will be the basis for such relief. We can, 
however, provide necessary procedures and identify the parties who best 
may devise the educational, programmatic, and fiscal measures to be 
incorporated in such remedial relief.

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Id. at 199. In CFE. the same educational policy choices of the State were challenged, 

only there the focus was on inadequate funding. This Court nevertheless found that 

plaintiffs alleged and specified “gross educational inadequacies” that could give rise to a 

constitutional violation. CFE. 86 N.Y.2d at 319. At its core, this case is no different.

conclusion

Plaintiffs’ Education Article claim was improperly dismissed by the courts

below and should be reinstated. The State’s failure to deliver on its constitutional

obligation to prepare every child to be a productive participant in our society should not

go unexamined. While the State argues that adequate facilities and services are being

provided, RCSD schools continue to fail. The policy of this State cannot be to simply

ignore failing districts upon satisfying itself that the bare minimum has been made

available. Plaintiffs merely seek the relief that the Education Article entitles them to: the

opportunity for their children to get a “sound basic education.” Plaintiffs should be given

the chance to prove that the State has failed to provide that opportunity here.

Dated: New York, New York 
January__, 2003

STROOCK & STROOCK & LA VAN LLP
By:

Bruce H. Schneider
Attorneys for Amici NAACP Legal Defense 
and Educational Fund, Inc. and 
The New York Civil Liberties Union 
180 Maiden Lane
New York, New York 10038-4982 
(212) 806-5400

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Of Counsel:
Kevin J. Cumin 
Joseph E. Strauss 
Meredith L. Codlin

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