State of New York Reply Brief - Appellate Division

PRELIMINARY STATEMENT

At the heart of this appeal lies an important question about the proper roles of the legislature and the judiciary in our constitutional democracy. The Court of Appeals recognized this in Levittown, when it declared that the “ultimate issue” in discerning the reach of the Education Article “is a disciplined perception of the proper role of the courts in the resolution of our State’s educational problems.” Bd. of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 57 N.Y.2d 27, 50 n.9 (1982) (“Levittown”).

Here, as is often the case, the temptation to abandon that discipline surely arises from the most honorable motives -- to improve the lot of New York City’s public school children and “fix” certain perceived problems in the City’s school system. But ultimately, this temptation leads the judiciary to substitute its own vision of good and just policy for that of the popularly elected Legislature. This is just what the court below did. Plaintiffs had the burden of proving the educational funding system unconstitutional, and they did not meet that burden. In yielding to its own preferences, however well-intentioned they might be, the court handed down a decision that is not only legally incorrect, but constitutionally dangerous and fraught with the peril of unintended consequences.

The risk of unintended consequences is particularly palpable in this case, because it involves a vast, virtually unprecedented claim on the State fisc. Even under the non-exhaustive and “conservative” estimates made by the court below and the plaintiffs regarding the cost of curing the purported absence of a sound basic education, the remedy would require the State to provide billions of additional dollars each year to the City’s public schools.^[1] To place this in some perspective, in the recent budget stalemate between the Governor and the Legislature, the entire difference in proposed spending between the Governor and Democratic legislators was $2 billion. See “Pataki Calls Legislature Back to Albany for Budget Bills,” Associated Press, Aug. 30, 2001. If Justice DeGrasse’s order had been immediately implemented, it would likely have consumed that amount of public money without a single vote.

And of course, that money would have to come from other places. It might mean less money for other school districts and for programs whose constituencies are not represented here. Less funding might flow to other projects that benefit children and other groups, both in New York City and statewide. Implementation of the trial court’s order would also likely necessitate an infusion of additional revenue into the State’s coffers. But the difficult and contentious process of ordering priorities for spending large sums of the public’s money is a task for the Legislature, not a single judge.

Such a sweeping judicial incursion into the legislative sphere cannot be justified. As demonstrated in the State’s main brief and elaborated upon below, the plaintiffs have failed, on issue after issue, to make the factual showings required to prove that New York City public education is constitutionally inadequate. But it is important to recognize at the outset what are perhaps the two most fundamental misconceptions underlying plaintiffs’ argument, and the two on which most of their errors rest: their refusal to accept the qualitatively minimal nature of the constitutional standard, and their insistence that the State is the sole and absolute guarantor of educational quality.

First, in a characteristically false dichotomy, plaintiffs claim that the standard for a sound basic education is either their standard or “no standard at all.” Pl. Br.^[2] at 135. They ignore the possibility, and the reality, that the Constitution can impose a standard that is truly modest. Indeed, the other most prominent affirmative obligation imposed by the New York Constitution, the “Aid to the Needy Clause,” does just that; it requires that the Legislature must provide some aid to the needy, but leaves the level of that aid entirely in the discretion of the Legislature. See Tucker v. Toia, 43 N.Y.2d 1, 8 (1977).

The fact that the Education Article was intended to operate in an analogous manner is manifest both in its legislative history -- which unmistakably shows that it was meant not to provide courts a wide berth to determine what makes an education sound, but to gu¹⁰arantee that basic standards be applied statewide -- and in the clear language of the Court of Appeals. While the Court has articulated the truly minimal character of the Educational Article’s standard in several ways, perhaps the most concise and vivid description of the standard is in the Levittown court’s statement (quoted in CFE I) that if what the system makes available “may properly be said to constitute an education,” the standard is met. Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 337 (1995) (“CFE I”) (quoting Levittown, 57 N.Y.2d at 48 n.7). Plaintiffs cannot elude this reality with transparent attempts to bend the Court of Appeals’ opinion in CFE I into conformity with the trial court’s decision. Such efforts cannot mask the fact that it is the trial court that failed to conform its opinion to the mandates of CFE I.

The trial court’s unwillingness to apply the Court of Appeals’ standard of “minima[l] adequa[cy]” colored its assessment of the facts presented at trial. The State’s witnesses established that New York City’s schools more than satisfy this standard with respect to the three categories of resources identified by the Court of Appeals: teachers, facilities, and instrumentalities of learning. The State also demonstrated that New York City students perform well in absolute terms, and compared with large urban districts in New York and across the nation. This evidence was sufficient to prevent plaintiffs from prevailing on their claim of constitutional inadequacy, but the trial court instead ruled for plaintiffs, based on testimony indicating only that the City’s schools could do better.

Second, working hand in glove with plaintiffs’ unduly expansive vision of the Education Article’s qualitative standard is their insistence, in derogation of the clear teachings of New York law and history, that the State’s responsibility for education is all and the locality’s nothing at all.

As CFE I made clear, the Legislature’s obligation under the Education Article is one of reasonable funding, not an insurance policy for localities that either squander funds sufficient to support a sound basic education, or fail to provide adequate local funds in the first instance. At the time of the Education Article’s adoption, the State contributed just 19 percent of all monies spent for education.³ It is unimagineable that the framers intended that the State, which now funds more than 50% of New York City’s education spending, be susceptible to constitutional liability based on the failings of its localities in the project of local education.

Not only should the trial courts’ findings on plaintiffs’ Education Article claim be reversed, but plaintiffs’ attempt to assert their Title VI disparate impact claim under § 1983, in the wake of a Supreme Court decision barring them from doing so under Title VI itself, should be rejected. See Alexander v. Sandoval, 121 S. Ct. 1511 (2001). Regulations cannot by themselves give rise to enforceable legal rights. And Sandoval’s holding, equally applicable in this context, that the disparate impact regulations do not fall within Title VI’s statutory proscription against intentional discrimination, precludes them from bringing a § 1983 claim.

Accordingly, this Court should reverse the trial court’s decision on both of plaintiffs’ claims, and enter judgment for the State. Even if the Court were to find a violation of the Education Article, it should set aside the expansive remedy ordered by the trial court. The court’s order is overbroad, unduly intrudes on the prerogatives of the Legislature to order State priorities and set educational policy, and threatens to undermine the principle of local control upon which New York’s public school system has rested since its advent.

POINT I
TO PREVAIL AT TRIAL, PLAINTIFFS WERE REQUIRED TO SHOW BEYOND A REASONABLE DOUBT THAT NEW YORK CITY DOES NOT OFFER STUDENTS “MINIMALLY ADEQUATE” RESOURCES OR THE
OPPORTUNITY TO OBTAIN “BASIC” SKILLS

Both plaintiffs’ proposed standards of proof and appellate review, and the trial court’s decision, rest on several critical errors of law. First, plaintiffs have misstated the applicable standard of review. In this case, as in any constitutional challenge, plaintiffs have the burden of proving unconstitutionality beyond a reasonable doubt, and on appeal, both legal and factual findings are subject to review by this Court.

Second, the trial court went far beyond the Court of Appeals’ standard of “minimal[ ] adequa[cy]” and other legal guidelines in evaluating plaintiffs’ Education Article claim. The trial court asked not whether New York City’s schools are “minimally adequate,” but whether all students in those schools will excel. While the highest standards are an admirable objective for education policymakers, precedent makes clear that the Education Article is not intended to guarantee their attainment. By failing to consider whether the teachers, facilities, and instrumentalities of learning in New York City’s schools are “minimally” sufficient, the trial court went astray. Plaintiffs have offered no persuasive arguments to the contrary; they have instead mischaracterized the State’s position and the trial court’s analysis, without taking into account the strong historical evidence of the provision’s limited purpose. Nor can plaintiffs explain away the trial court’s disregard of other important parameters set forth by the Court of Appeals that narrow a judicial inquiry under the Education Article. Because the trial court’s legal errors pervade its analysis, the court’s ruling on plaintiffs’ Education Article claim must be set aside, and judgment entered for the State.

A. Plaintiffs Had the Burden of Proving Unconstitutionality Beyond a Reasonable Doubt and this Court Can Review the Trial Court’s Findings of Fact.

Although plaintiffs attempt to dismiss as “boilerplate” the well-established standards of proof and review governing this case, Pl. Br. at 118, those standards remain central to how this Court should assess the decision below.

At trial, plaintiffs had the heavy burden of demonstrating the unconstitutionality of the education funding laws beyond a reasonable doubt. See Pringle v. Wolfe, 88 N.Y.2d 426, 431 (1996); Trump v. Perlee, 228 A.D.2d 367, 367 (1st Dep’t 1996). This burden has attached to constitutional challenges for over a century. See, e.g., People ex rel. Carter v. Rice, 135 N.Y. 473, 484 (1892) (“Before courts will deem it their duty to declare an act of the legislature void as in violation of some provision of the Constitution, a case must be presented in which there can be no rational doubt. The incompatibility of the legislative enactment with the Constitution must be manifest and unequivocal.”) This requirement is applied with stringency in cases that challenge public funding programs. See Schultz v. State, 84 N.Y.2d 231, 241 (1994).

While plaintiffs claim this rule is of “questionable relevance” here, Pl. Br. at 119, their suggestion is simply wishful thinking. While a “preponderance of the evidence” standard applies at trial to pure findings of fact, such as the average number of students in a classroom, plaintiffs brought a constitutional challenge and thus were required to persuade the trial court beyond a reasonable doubt with regard to mixed questions of law and fact, such as whether physical facilities, instrumentalities of learning, curricula, and teachers fall below the “minimally adequate” level, or whether a causal link exists between the present funding system and the alleged lack of a sound basic education, see CFE I, 86 N.Y.2d at 317-319. This strong presumption of constitutionality preserves the deference due to the Legislature, a “coequal branch of government,” Schultz, 84 N.Y.2d at 241, and thus safeguards fundamental values of our constitutional democracy.

Plaintiffs’ substantial burden does not disappear because of purportedly “unusual” features of this appeal -- that the Court of Appeals gave the trial court “specific direction” regarding the issues to resolve, and that the trial was lengthy, with a voluminous record. See Pl. Br. at 118. No court has ever held that the presumptions governing constitutional challenges change depending on the length of the record or trial.

Plaintiffs also obfuscate the standard governing this Court’s review of the trial court’s findings of pure fact. Plaintiffs cannot dispute this Court’s authority to review questions of fact. See CPLR § 5501(c). To be sure, in a non-jury trial, this Court may defer to findings of fact that turn in large part on witness credibility unless those findings of fact obviously could not be reached based on a fair interpretation of the evidence. See Ashland Management Inc. v. Janien, 190 A.D.2d 591, 591 (1st Dep’t), aff’d , 82 N.Y.2d 395 (1993). However, “where the findings in a non‑jury trial are based upon considerations other than the credibility of witnesses, such as documentary evidence” -- the bulk of the evidence presented in this case -- this Court has the authority to draw inferences and make findings of fact based upon evidence in the record. Abrahami v. UPC Constr. Co., 224 A.D.2d 231, 233 (1st Dep’t 1996); see also Sutton v. Bank of New York, 250 A.D.2d 447, 447 (1st Dep’t 1998); Redcross v. State, 241 A.D.2d 787, 790 (3d Dep’t 1997). As with the burden of proof, this authority to review findings of fact does not wax or wane depending upon the number of exhibits at trial or the number of pages in the trial court’s opinion.

B. The Standard for a Sound Basic Education, As Set Forth By the
Court of Appeals, Is One of “Minimal Adequacy.”

The Court of Appeals has already held in this case that the constitutional mandate imposed on the Legislature by the Education Article is one of “minimal[ ] adequa[cy].” CFE I, 86 N.Y.2d at 317. Indeed, the Education Article could not reasonably be construed to impose a higher standard, in light of its text and history. The education offered by New York City’s schools must be “sound,” but it need only be “basic.” Plaintiffs try to sidestep the narrow scope of this legal standard, instead seeking to install the courts as education policymakers. The question before this Court, however, remains one of constitutional law. Because the trial court did not abide by the standard of “minimal[ ] adequa[cy],” this Court should reverse and find that the State has complied with its obligation under the Education Article.

Plaintiffs first suggest that the State’s adherence to the Court of Appeals’ template deprives the Education Article of all substantive meaning. See Pl. Br. at 120-121, 135-136. The Court of Appeals in CFE I, however, settled the question of whether the Education Article has a substantive component, and the State openly acknowledged this holding in its initial brief. See Def. Br. at 47. What is at stake here is not whether the obligation imposed by the Education Article includes a substantive component, but the scope of that obligation.

The Court of Appeals itself has already defined the parameters of that obligation. The State must “offer all children the opportunity of a sound basic education . . . [that] consist[s] of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” CFE I, 86 N.Y.2d at 316. In outlining the “essentials” that must be provided to achieve this goal, the Court of Appeals repeatedly referred to “minimally adequate” resources. Id. at 317.

As the State demonstrated in its opening brief, see Def. Br.⁴ at 28-32, the text of the Education Article and the history of its enactment explain why this constitutional mandate has a narrow scope. The provision itself directs the State to “provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” N.Y. Const. Art. XI, § 1. As compared with other state constitutions, which guarantee a certain quality of education, New York’s Education Article contains no such obligation on its face; the duty to provide the opportunity for a sound basic education is itself an interpretative gloss added by the Court of Appeals. The historical context of the Education Article also confirms the appropriateness of the Court of Appeals’ “minimally adequate” standard. Adopted against a backdrop of substantial local contributions to education financing and strong local control over the administration of public schools, the provision was intended to ensure that a free public education would be available to students in communities that were otherwise unable to establish any schools whatsoever. While it may be appropriate to provide New York City’s students with resources that far exceed this constitutional floor, plaintiffs cannot rely on the Education Article to achieve this result.

Rather than grappling with these limits on the scope of the Education Article, plaintiffs respond only that it is “dynamic.” Pl. Br. at 136-139. However, “dynamic” constitutional interpretation cannot justify a complete rewriting of a constitutional provision. It does not allow plaintiffs or the trial court to disregard the Court of Appeals’ determination that the Education Article imposes a “minimal,” rather than an expansive, obligation on the Legislature.

In short, plaintiffs appear to disagree with the Court of Appeals’ determination that the Education Article mandates a “minimally adequate” education. Their analysis proceeds as if the State sought to impose this limitation by dint of persuasion, rather than because the Court of Appeals has construed the Education Article in this manner. The trial court’s effort to raise the bar is a fundamental error of law that irreparably flaws its consideration of plaintiffs’ claim.

In a similar manner, plaintiffs and the trial court also ignore Court of Appeals precedent requiring plaintiffs to demonstrate the existence of a “gross and glaring” inadequacy in educational resources and student performance to prevail on an Education Article claim. See Levittown, 57 N.Y.2d at 48; Reform Educational Financing Inequities Today v. Cuomo, 86 N.Y.2d 279, 284 (1995) (“REFIT”). Nowhere in the trial court’s decision does this standard appear, and the court has made no inquiry into whether the City’s schools are “gross[ly]” deficient.

Instead of attempting to reconcile the trial court’s expansive application of the Education Article with the narrow scope of its protections, plaintiffs erroneously claim that the State’s arguments conflict with the Court of Appeals’ instructions to the trial court. See Pl. Br. at 121-122, 140-142. In CFE I, the Court of Appeals stated that, in light of the procedural posture of the case (a motion to dismiss), it would not “definitively specify what the constitutional concept and mandate of a sound basic education entails.” 86 N.Y.2d at 317. It further noted that “[o]nly after discovery and the development of a factual record can this issue be fully evaluated and resolved. . . . The trial court will have to evaluate whether the children in plaintiffs’ districts are in fact being provided the opportunity to acquire [a sound basic education.]” Id. at 317-18.

Plaintiffs suggest that this instruction gave the trial court free rein to decide what a sound basic education required. The Court of Appeals, however, unequivocally laid out specific parameters that the trial court was to follow in resolving plaintiffs’ claim. “[W]e articulate a template reflecting our judgment of what the trier of fact must consider in determining whether defendants have met their constitutional obligation.” Id. at 317-18. Explicitly included in that template was a standard of “minimal adequacy.” The template also identified three types of resources that should be provided as part of a sound basic education:

· “minimally adequate physical facilities and classrooms”

· “minimally adequate instrumentalities of learning,” and

· “minimally adequate teaching of reasonably up-to-date basic curricula.”

Id. at 317.

The trial court, however, went beyond this template. The court identified seven categories of resources that it deemed relevant to determining whether students have the opportunity to receive a sound basic education. See CFE Trial, 187 Misc.2d at 114-15; see also Pl. Br. at 140. It then proceeded to determine the level of resources it believed necessary to comply with the Education Article’s mandate. Contrary to what plaintiffs suggest, CFE I did not permit the court to require a level of resources that far exceeds the “minimally adequate” standard imposed by the Court of Appeals.

This second error of law -- mandating resources without due regard to the standard of “minimal[ ] adequa[cy]” -- characterizes much of the trial court’s analysis. For example, the trial court concluded that students cannot adequately learn in class sizes of more than 20, see 187 Misc. 2d at 53, without anywhere determining that students cannot learn effectively in classes of 22, or 25, or 28. It criticized the quality of teaching in the City’s schools, partly on the grounds that New York City’s teachers attended less competitive colleges than the average public school teacher in the rest of the State, while ignoring that a higher percentage of the City’s teachers have more than a masters degree than their counterparts across the state, see id. at 30.

Not only does this aspect of the trial court’s analysis deviate from the Court of Appeals’ template, it also impermissibly installs the court as policymaker, resolving debates between experts regarding, for example, what constitutes an acceptable class size, or what type of computers should be provided. As the Court of Appeals has held, courts should avoid this role. Such an approach “require[s] the courts not merely to make judgments as to the validity of broad educational policies -- a course we have unalteringly eschewed in the past -- but, more importantly, to sit in review of the day-to-day implementation of these policies.” Donohue v. Copaigue Union Free Sch. Dist., 47 N.Y.2d 440, 445 (1979).

The trial court also went beyond the Court of Appeals’ template in terms of the skills it identified as essential to a sound basic education. While CFE I held that students must have an opportunity to obtain skills necessary to vote and serve on a jury, see 86 N.Y. 2d at 316, the trial court included skills necessary to find employment in the “high technology sector.” 187 Misc. 2d at 17. Plaintiffs’ arguments on this point, see Pl. Br. at 122-130, suggest that citizens employed in the service sector are not competent voters or jurors.

In a more specific attempt to defend the exceptionally high standard by which the trial court evaluated New York City student performance, plaintiffs mistakenly assert that the trial court did not rely on the Regents Learning Standards (“RLS”) as an indicator of whether New York City’s schools provide the opportunity to obtain a sound basic education. While the trial court initially disavowed reliance on the RLS, its analysis of student performance relied heavily on Regents exam scores. Indeed, in examining the various diplomas, the court concluded that only those students who received a Regents diploma “actually demonstrate[d] that they received a sound basic education.” 187 Misc. 2d at 63. The court ultimately defined a sound basic education in terms of the skill level needed to pass the Regents exams and found that students receiving only a local diploma (or its equivalent, a GED) had not demonstrated that they had obtained a sound basic education. See infra at Point II.A. Yet the Regents exams and Regents diploma are gauged to the RLS, which even the trial court acknowledged to be aspirational in some respects. This critical part of the trial court’s analysis simply does not comport with the Court of Appeals’ standard of “minimally adequate” resources necessary to attain “basic skills.”

Plaintiffs alternatively try to justify the trial court’s reliance on the RLS by noting that the State has indicated its intent to rely upon the Regents exams as a measure of graduation competency. Pl. Br. at 131. As discussed below, the RLS go far beyond the basic skills that graduation competency tests have traditionally measured. While these efforts by New York’s educators to encourage students to achieve at the highest levels are laudable, the standards exceed the level of “minimal[ ] adequa[cy]” demanded as a matter of constitutional law. Nor does their adoption by the Regents transform them into the constitutionally-mandated floor. As the Court of Appeals stated in CFE I, “because many of the Regents and Commissioner’s standards exceed notions of a minimally adequate or sound basic education -- some are also aspirational -- prudence should govern utilization of the Regents’ standards as benchmarks of educational adequacy.” CFE I, 86 N.Y.2d at 317. Moreover, the RLS did not go into effect until 1996 and have still not been fully implemented. Whatever a sound basic education might mean, the Education Article should not be construed to require the development of a greater range or level of basic skills than the State required for graduation during the relevant time period.

Finally, plaintiffs cannot explain away the trial court’s evasion of important constraints on adjudication of an Education Article claim. As the State has already demonstrated, a judicial inquiry into the constitutional adequacy of a school system must be guided by four principles:

· Plaintiffs must show that any deficiencies are the result of a systemic problem, rather than identifying isolated instances of problems in particular schools;

· Plaintiffs may not rely on evidence of disparities among school districts;

· Schools are not responsible as a matter of constitutional law for remedying all deficiencies in student performance that are attributable to factors external to the school system; and

· Courts must adhere to a presumption that meeting statewide minimum requirements for school resources and performance demonstrates constitutional adequacy.

Def. Br. at 60-64. For the reasons detailed in the opening brief, see id. at 63-64 and Pt. II, infra, the trial court did not adhere to these guideposts.

Plaintiffs’ efforts to dispute the validity of these principles or to portray the trial court as complying with them are not persuasive. First, plaintiffs argue that the testimony of school superintendents and city officials constitutes “systemic” evidence, even though much of this testimony consisted of anecdotes offered by plaintiffs’ witnesses regarding conditions at particular schools -- some of which were at odds with other out-of-court statements made by those same witnesses. Second, plaintiffs contend that the extensive evidence comparing New York City schools to their suburban counterparts, see CFE Trial, 187 Misc. 2d at 26-36, was “specific and limited,” Pl. Br. at 157. The evidence of disparities relied upon by the trial court was far from limited, and when it is set to one side, the remaining evidence that the trial court referenced in support of its findings of inadequacy cannot pass muster. Third, contrary to plaintiffs’ characterization, the State does not claim that New York City should “give up” on poor or disadvantaged children, Pl. Br. at 158, but instead demonstrates that the Education Article does not require schools, standing alone, to fully compensate for all external factors that may affect student achievement. Fourth, as explained above, by relying upon the RLS -- which still are not fully implemented -- as the relevant indicator of educational adequacy, the trial court ignored the minimum requirements -- the RCTs -- that were fully in place for the overwhelming duration of this litigation, and whose standards have consistently been met by New York City students.

In sum, the State agrees with plaintiffs that the Education Article does impose a substantive obligation to provide a sound basic education. That obligation, however, is to make available “minimally adequate” educational resources. Whatever policy experts may conclude about how we might best educate our children, the Constitution speaks only to this floor of “minimal[ ] adequa[cy],” and the Education Article cannot be stretched further.

POINT II
THE EVIDENCE AT TRIAL DID NOT DEMONSTRATE A GROSS AND GLARING INADEQUACY IN THE CITY SCHOOL SYSTEM’S TEACHERS, FACILITIES, OR OTHER RESOURCES ESSENTIAL FOR AN EDUCATION

As described in the opening brief, the evidence at trial demonstrated the constitutional adequacy of teaching and learning in New York City’s schools -- a system that BOE chancellors and leaders have themselves described as “the finest large, urban public school system in the nation.” DX 10136; T.2403-04 Spence; T.11339 Levy. Plaintiffs failed to establish that any resource recognized by the Court of Appeals as essential to education was so grossly and glaringly deficient as to prevent teaching and learning of basic literacy, math, and verbal skills. The State’s evidence showed that teachers in New York City were providing a sound basic skills education and were more than minimally qualified by any relevant measure, including evaluations of schools and of individual teacher performance, teaching licenses, educational background, experience, and teacher-student ratios. Objective, system-wide data generated by or on behalf of BOE showed that the City’s school facilities, while in need of repair, were on the whole in fair or better condition, could accommodate the student body, and provided a physical environment in which City students could learn. Finally, the evidence showed that the quantity and quality of textbooks, classroom supplies and materials, libraries, and instructional technology had been evaluated positively by BOE and the Chancellor, were consistent with resources in schools nationwide, and were fully capable of supporting teaching and learning of basic literacy, math and verbal skills.

The trial evidence regarding student performance confirms this conclusion. The evidence showed that City students performed near, at, or above the national average on nationally-normed tests aligned with BOE’s curriculum. It also showed that the City’s students performed close to the statewide average on minimum competency tests used by the State to measure graduation skills, and better than average as compared with the State’s other large urban school districts. Plaintiffs’ response -- to attempt to impugn the usefulness of such tests as indicators of minimum competency in basic skills -- ignores the fact that the State itself relied upon these tests during the time period in question. Because student performance rebuts plaintiffs’ claim of a gross and glaring deficiency in educational resources, plaintiffs did not meet their burden of proving an Education Article violation.

A. The Evidence Regarding the City School System’s Teachers, Facilities, and Instrumentalities of Learning Failed to Conclusively Show a Gross and Glaring Inadequacy in Resources Essential for a Sound Basic Education.

Far from conclusively establishing a gross and glaring deficiency in any resource that the Court of Appeals indicated was essential, the evidence below actually demonstrated that the teachers, curricula, facilities, class sizes, and instrumentalities of learning available in the City school system were fully capable of allowing students to obtain a sound basic education, and no less adequate than the resources generally available in large urban school districts throughout the country. In fact, not only did BOE spend enough money to provide satisfactory basic resources, it also had the resources needed to make various special programs available to the City’s students.

1. Teachers and Curriculum

Plaintiffs have failed to substantiate their claim that the City’s hardworking, dedicated “teaching force as a whole is not competent to do its job.” Pl. Br. at 52. Plaintiffs ask this Court to disregard BOE’s own evaluations which demonstrate that the City’s teachers are more than “minimally adequate.” They would have this Court rely instead upon disparities between the credentials of City teachers and those of teachers in the rest of the State (as did the trial court), but this evidence cannot support an Education Article claim. Nor was the direct evidence at trial regarding teacher qualifications sufficient to carry plaintiffs’ burden of showing that the City’s teachers are not “minimally adequate.” Moreover, plaintiffs’ further attacks on BOE’s curriculum lack evidentiary support.

As the opening brief described, the only direct systemic observations of the quality of teaching in New York City’s public schools ‑‑ the PASS reviews and annual teacher performance reviews and the PASS reviews ‑‑ demonstrated that the teaching was adequate or better. See Def. Br. at 67‑69. The PASS reviews showed that, on average, schools were performing between an “exemplary” and “approaching exemplary” standard in the area of instruction. The teacher evaluations showed that less than one percent of all teachers were deemed “unsatisfactory” in their direct reviews. Id. at 67-69. As BOE and Chancellor Levy have concluded elsewhere, “[t]he vast majority of teachers in the New York City public schools provide high quality educational experiences for their students,” and “the vast majority of [New York City’s] teaching force . . . are gifted professionals.” DX 10453, p.2; DX 19469, p. 7.

Plaintiffs attack the PASS review process as created only for the purpose of evaluating low-performing schools, or as being highly subjective in nature, see Pl. Br. at 94, but they do not address why these assertions are still valid following recent reforms of the PASS review process. See T.10644-45 Tobias; PX 2379, pp. 12-14. Plaintiffs also claim that the standards for teacher evaluations are too low, see Pl. Br. at 65-66, but do not explain how they deviate from the Court of Appeals’ standard.

In the face of these favorable PASS reviews and teacher evaluations, plaintiffs identify several specific criteria as relevant to teacher quality, but with respect to each of these, plaintiffs did not demonstrate that the City’s teachers lack “minima[l] adequa[cy.]” As the State previously demonstrated, Def. Br. at 69, the vast majority of City teachers were State-certified. All persons allowed to teach in the City (including uncertified teachers) were licensed by the State and found “qualified” by BOE to teach in their assigned areas. Id. at 70. The City’s teachers are well-educated; approximately 75% have a Masters’ degree, as compared with 47% nationwide. Id. at 71. In addition, the City spent almost $3,000 per teacher per year on professional development, more than what other large urban districts spent. Id. Finally, the City has a sufficient supply of teachers: there were enough available so that, even excluding uncertified teachers, there was one teacher available for every 14 students – a student teacher ratio lower than the national average and substantially lower than the ratio in many large urban districts. DX 19048; T.16242 Murphy.

Plaintiffs’ responses , see Pl. Br. at 51-66, are unavailing. Plaintiffs contend that a higher percentage of City teachers are uncertified than in other parts of the State, that City teachers tend to have fewer years of experience and lower scores on certification exams, and that they come from “less-competitive” colleges than teachers in the rest of the State. But this evidence of disparities cannot be relied upon to show a violation of the Education Article. Nor do plaintiffs address how this evidence could demonstrate a gross and glaring deficiency. For example, plaintiffs complain about the City teachers’ educational experience and background, but do not explain why a system in which teachers have 13 years of median experience, with 75% of the teachers attending “competitive” colleges, precludes “minimally adequate” teaching, but a system in which teachers have 16 years of median teaching experience, with 83% attending competitive colleges, is acceptable. See Def. Br. at 70; T.4580 Lankford.

Moreover, plaintiffs ignore the fact that many decisions directly affecting the quality of teaching in New York City are made not by the State, but by local officials. For example, according to plaintiffs’ own experts, as a result of BOE’s “dysfunctional and cumbersome” hiring procedures, “well-prepared teachers are discouraged from applying for jobs.” DTEV Tab 10, ¶¶ 366-369; PX1870, p. 19; PX1874, p. 37. Similarly, BOE is responsible for assigning its teachers to local districts and schools. Rather than attempt to direct better-qualified teachers to low-performing schools, BOE permits experienced teachers to transfer out of schools that may be difficult to staff. PX 1155, p. 116.

Finally, plaintiffs also attack BOE’s curriculum, on the ground that it is not adequately taught. See Pl. Br. at 75-76. For the most part, this argument simply amounts to a reiteration of their complaints about teacher quality, which are unpersuasive. More specifically, plaintiffs also claim that the City’s schools lack enough qualified teachers to provide instruction for English Language Learners (“ELLs”) and special education students. This argument mischaracterizes the evidence. At trial, plaintiffs’ own witness, Dr. Lillian Hernandez, acknowledged that she had visited many bilingual and ESL classrooms in the City’s schools and found that “[t]he majority of the programs” “offer high caliber instruction” “in alignment with the new standards” adopted by BOE. T.9209-10 Hernandez. Similarly, the evidence showed that BOE has been spending over 20 percent more per special education student than is spent in the rest of the State, and has been placing many non-disabled students in special education. DX11170, p.1; DTEV Tab 10, ¶ 438. Plaintiffs also claim that the City’s schools offer only limited instruction in non-core subjects like arts and physical education, but even plaintiffs acknowledge (as did the trial court) that these subjects are not required for a sound basic education, and that such instruction is available in many (if not all) schools.

2. Facilities and Classrooms

While the evidence at trial showed that, as in any institution, regular maintenance of the City’s schools is required, and even that in certain cases schools may be more crowded or in need of repair than would be desirable, plaintiffs did not show that the City’s schools lack “minimally adequate” facilities necessary for children to learn. In fact, their claim that the physical condition or capacity of the City’s school facilities as a whole is so deficient as to prevent students from obtaining an education was contradicted by the evidence at trial.

For example, as the State previously noted, see Def. Br. at 77, an exhaustive survey of the City schools completed for BOE (the “BCAS” survey) showed all but a small percentage of building components to be in at least fair condition. This conclusion was independently confirmed by the State’s expert by analyzing the BCAS data on the basis of repair costs per square foot. In addition, there was no evidence that even in those buildings most in need of repair, students could not learn basic skills as a result of poor facility conditions. Moreover, relying on BOE studies, the State’s experts demonstrated at trial that City schools could reasonably accommodate the actual number of children in classrooms on a typical day (even if some schools were failing to utilize their space effectively).

Plaintiffs’ responses, see Pl. Br. at 33-34, do not successfully rebut this evidence or allow them to meet their burden of proof. Plaintiffs argue that the few building components rated less than fair in the BCAS survey might have been more important than the components rated fair or better, but it was plaintiffs’ burden to present concrete evidence that these components were so important (for example, roofs or boilers, as compared to more minor items) as to reveal a gross and glaring systemic deficiency. Plaintiffs also point to anecdotes presented at trial about isolated deficiencies in certain facilities. But even if plaintiffs have identified specific problems at particular schools that should be remedied, this evidence cannot meet their burden of demonstrating system-wide deficiencies serious enough to interfere with learning.

Finally, as to class size, plaintiffs essentially contend that class sizes of 20 students or less are generally required for effective teaching and learning, that even smaller classes are required to address the needs of the City’s at-risk students, and, consequently, that average City class sizes between 26 and 29 students are inadequate to provide a sound basic education. See Pl. Br. at 44-51. However, as the State previously showed, Def. Br. at 72-74-- and plaintiffs do not refute -- the City’s class sizes were consistent with prevailing class sizes nationwide and permitted effective learning of basic skills, as evidenced by satisfactory City student test scores, see Point II.B, infra, as well as by the performance of similarly situated students enrolled in the City’s Catholic schools, who achieve superior State test results despite having even larger average class sizes. As with facilities generally, plaintiffs’ lengthy discussion of why smaller class sizes might be desirable fails to meet their burden of showing that smaller sizes are essential to a minimally adequate educational program.

3. Instrumentalities of Learning

Finally, as the State has previously shown, Def. Br. at 74-76, plaintiffs’ assertion that the City school system was so deficient in essential instrumentalities of learning as to deprive students of the opportunity for a sound basic education was again refuted by the record. Indeed, the trial court found little non-anecdotal evidence of the City’s alleged lack of classroom supplies and equipment, and acknowledged that there was sufficient funding for textbooks during the relevant time period. In addition, BOE itself rated the City school system’s classroom supplies and materials (including desks, chairs, pencils, and textbooks) to be near or at “exemplary” levels, and had documented its purchase of enough specialized equipment to bring the computer / student ratio to a level that equaled or exceeded the ratio prevailing nationally. Finally, Chancellor Crew referred to the City school system as “one of the most technologically advanced in the nation.”

Plaintiffs’ response, see Pl. Br. at 68-75, relying largely on anecdotal evidence, fails to show that the City’s school system is lacking in “minimally adequate” instrumentalities of learning. Thus, plaintiffs’ isolated examples of outdated library books and insufficient classroom supplies fail to establish system-wide deficiencies that deprive students of the possibility of a sound basic education. Moreover, plaintiffs contend that recent increases in spending on textbooks and technology may not continue, but speculation of this sort cannot suffice to establish an Education Article violation.

4. Special Programs

Plaintiffs also criticize the City school system for purportedly failing to provide “special” programs to enhance learning by the City’s predominantly at-risk student population. See Pl. Br. at 26-33. Such programs are not specifically mentioned in the Court of Appeals’ template. Moreover, the evidence at trial raised a doubt as to whether the special programs identified by plaintiffs would actually make a difference in student learning. See, e.g., PX2172, pp. 31-34; PX2176; DX19301; DX19302; T.0018-26 Casey; T.17097-104 Walberg. But, assuming the value of such programs, the State demonstrated that BOE has had the funding necessary to provide a number of such programs, including: (1) universal pre-kindergarten classes; (2) class size reductions in grades K-3; (3) summer school; and (4) special reading programs. See DTEV Tab 11, ¶¶ 527-37. In addition, the evidence revealed that there was enough money available to provide Success for All for every child found to be in need of that program. DX10021-51, pp. BOE22082-89.

In sum, plaintiffs have failed to conclusively demonstrate that the City’s public school system has a gross and glaring inadequacy in one or more of the resources recognized as essential for a sound basic education.

B. City Student Performance at the National and Statewide Averages on Math and Reading Tests Administered by the State and City During the Relevant Time Period Rebuts Plaintiffs’ Claim That the City School System Denied Students the Resources They Needed for a Sound Basic Education.

As demonstrated in the State’s opening brief (see Def. Br. at 81-84), the overall performance of City students on standardized tests demonstrates that the City school system is providing City students with the opportunity for a sound basic education.

Through 1998, the preeminent accountability measure in New York City schools were the standardized, nationally-normed tests that were administered to children in grades 3‑8. DTEV Tab 11, ¶ 254. City students consistently performed near, at, or above the national average on these tests – performance that far exceeded that of students in other large urban school systems or systems with demographics similar to New York City’s. DTEV Tab 11, ¶¶ 261‑263. While plaintiffs complain about the norming process used for these tests, the norms were selected using a rigorous and accurate sampling, and by employing state‑of‑the‑art procedures to obtain the best estimate of how the average student nationwide performs. T.10453‑54, T.10489 Tobias; T.18466, T.18473 Mehrens. Moreover, BOE selected these tests because they were aligned with BOE’s curriculum, as well as with then‑existing State standards, and BOE officials described them as “more valid indicators” of teaching and learning than State-administered tests. T.10460‑61, T.10465-71, T.10473, T.10487 Tobias; T.10043-46 Casey.

New York City’s students also performed adequately on statewide tests that measured graduation competency. As plaintiffs themselves concede, the overwhelming majority (90 percent) of the 39,741 eleventh-graders attending the City’s public schools demonstrated competency in reading and math on the RCTs (on even more rigorous graduation tests) in 1997-98. This figure is close to the statewide averages of 92 percent for reading and 94 percent for math, and exceeds the average of 86 percent in both reading and math in the State’s other large urban school districts. This fact alone should preclude any finding that the cumulative educational program provided by the City school system is incapable of giving students a sound basic education.

Plaintiffs do not appear to dispute that obtaining a diploma demonstrates a sound basic education, but they contend (and the trial court found) that the RCTs are insufficiently demanding as a measure of basic reading and calculating skills. Plaintiffs also note that those tests are being phased out by the Regents in favor of the Regents exams (which are gauged to the RLS). Pl. Br. at 130. However, in 1999, the State permitted students to graduate who had demonstrated only the level of skills required to pass the RCTs or their equivalent.⁵ While plaintiffs quote the testimony of former Commissioner Thomas Sobol that the RCTs “were never intended to be a measure of what a sound basic education ought to be,” Pl. Br. at 131, Sobol also indicated that he viewed such a measure as requiring something more than the “minimum competency” needed to graduate. PX9, p. 140; T.1844-49 Sobol. In short, because the RCTs reflected the Regents’ judgment up until recently about the minimum level and kind of basic skills that students needed to graduate and begin to exercise the rights of adult citizens, those tests are entitled to substantial deference in this case.

Plaintiffs also challenge the significance of the 90 percent passage rate on the RCTs reading and math tests, contending that those students enrolled in the City school system through the eleventh grade were simply the toughest survivors of a terrible system and that a large number of students dropped out prior to reaching that grade. But the Court of Appeals has observed that there are a “myriad of factors, beyond the control of the schools” that may affect student performance. CFE I, 86 N.Y.2d at 317; see also Donohue, 47 N.Y.2d at 446 (Wachtler, J., concurring). Indeed, if anything, the 90 percent passage rate is made even more impressive in view of plaintiffs’ assertions that “[o]ver 80 percent of the state’s limited English proficient students are in New York City, as are over 90 percent of the state’s recent immigrants,” and that “over 93 percent of the students in New York City’s schools are classified by the State as ‘extraordinary needs’ students.” Pl. Br. at 26.

Plaintiffs also suggest that, notwithstanding this high passage rate on the RCTs, test scores of City students in the third through sixth grades on the PEP and PET tests are more revealing with respect to the cumulative effect of a City public school education. On the PEP tests, fully 90% of all students demonstrated competency at their grade level in math. See Pl. Br. at 88. While only two‑thirds of 3rd and 6th graders demonstrated competency in reading, this result may be attributable to the fact that some of these students may be learning English as a second language, and may also be affected by other factors external to school. Moreover, as the State previously noted, the City’s students performed at the same levels as the rest of the State when their scores were adjusted for the disproportionately disadvantaged backgrounds of City students. T.20465-67 Armor; DX19601; DX19538.⁶ Plaintiffs also point to New York City students’ scores on the PET tests, which were presented only on a percentile basis in New York State. If plaintiffs’ argument -- that the placement of New York City students in the lowest quartile demonstrates the lack of an opportunity for a “minimally adequate” education -- is correct, then by definition, one of every four school districts across the State would fail to provide students with the skills they need to competently vote and serve on a jury.

Finally, pointing to a “cohort analysis,” plaintiffs place heavy reliance on the fact that many high school students have difficulty achieving promotion to 10th grade, that many students drop out, and that many do not graduate with high level diplomas. Pl. Br. at 1‑10, 79‑87. Plaintiffs’ “cohort analysis,” however, failed to identify where the New York City high school students had received their elementary and middle school education. Fully 80% of the 1997 New York City cohort of graduates were born outside the United States, see PX312, p.28, and a large proportion enter the New York City school system for the first time in 9th grade. The 9th grade is the second largest grade of entry (after kindergarten) for students entering the NYC system, with a large number of those entering 9th graders coming from other countries. See T.1612, T.19290‑91 Kadamus. Nor does plaintiffs’ analysis take into account the external factors beyond the school system’s control that may affect student graduation rates.

In sum, this evidence of student performance on tests designed by the State and City to measure minimum competency in reading and math is completely consistent with the existence of “minimally adequate” teaching, facilities, and instrumentalities of learning needed for a sound basic education.

POINT III
PLAINTIFFS DID NOT MEET THEIR BURDEN TO SHOW THAT THE STATE’S EDUCATION FINANCE SYSTEM IS THE LEGAL CAUSE OF ANY PROVEN FAILURE TO PROVIDE A SOUND BASIC EDUCATION

In attempting to show that the State’s education finance system is the legal cause of any proven failure of New York City’s schools to provide the opportunity for a sound basic education, plaintiffs advance three main arguments. First, they argue that it is impossible to provide an education that meets the constitutional floor with the money available to the City system. Second, they claim to have established that more money would cure any existing constitutional deficiency in education in the City. Finally, they contend that the State is solely liable for any and all constitutional inadequacies in local education. Each of these arguments fails, and accordingly, this Court should reverse the trial court’s judgment, and find for the State.

A. Plaintiffs Failed to Prove That New York City Lacks Sufficient
Funds to Provide a Sound Basic Education.

Plaintiffs attempt to rebut the State’s substantial showing that New York City, one of the highest-spending large school districts in the nation, could provide a sound basic education at current funding levels. According to plaintiffs, the City’s education funding is revealed as inadequate after it is “(a) adjusted to account for the city’s high cost of living, (b) adjusted to reflect the additional educational resources required by New York City’s at-risk students, and (c) compared to surrounding suburban districts . . . .” Pl. Br. at 161. The first of these proposed considerations -- cost of living -- does not help plaintiffs meet their burden, both because it skirts the salient question of whether close to $10,000 per student is sufficient to provide a sound basic education in New York City, and because plaintiffs failed to establish with any clarity the degree and impact of any higher costs in the City. The other two considerations rest on assumptions that are contrary to established law: the Court of Appeals has indicated both that the Education Article does not require the State’s schools to fully compensate for external factors that affect student achievement, and that evidence of spending disparities among school districts has no place in an Education Article claim.

First, if indeed, as plaintiffs assert, an education dollar buys far less in New York City than it does elsewhere in the State, this fact still would not establish that the education funding available in New York City is insufficient to purchase a constitutionally adequate education for its public school students. Plaintiffs presented little or no evidence that current funding could not produce a sound basic education, but rather concentrated on supporting the proposition that current funding was not producing a sound basic education -- a proposition that was not only soundly refuted at trial, see Point II, supra, but more importantly in this context, goes to an issue distinct from that of financial sufficiency. The trial evidence that did not remotely show current finding levels are insufficient to support a that, consistent with common sense, a minimally adequate education can be had in New York City for $10,000. See Def. Br. at 89-91.

Ultimately, plaintiffs’ claim that “our dollars are worth less than their dollars” is an argument about disparity of funding, not insufficiency of funding. <