SUPREME COURT : STATE OF NEW YORK

COUNTY OF NEW YORK : I.A.S. PART 25

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CAMPAIGN FOR FISCAL EQUITY, et al. :

                               Index No.:111070/93

Plaintiffs, :


-against- :

THE STATE OF NEW YORK, et al., :


Defendants. :

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DeGrasse, J.:


 


(Brown v Board of Education of Topeka, 347 US 483, 493 [1954].)


In the years since the Brown decision was handed down, state and local governments have struggled with fulfilling the "most important function" of providing universal free primary and secondary education. This case raises an issue that has proved particularly vexing to educators, policy makers, and the general public: how to devise a method of funding public schools that assures students at least a minimally adequate education.

Plaintiffs, comprised of students, parents and organizations concerned with education issues, challenge New York State's funding of New York City's public schools. After pre-trial motion practice, appeals, and discovery, two claims were tried before this court from October 12, 1999 to May 15, 2000. Extensive post-trial briefing followed.

In the first of these two claims, plaintiffs assert that the State has failed to assure that New York City's public schools receive adequate funding to afford their students the "sound basic education" guaranteed by the Education Article of the New York State Constitution (NY Const article 11, § 1).

In their second claim, plaintiffs assert that the State's funding mechanisms have an adverse and disparate impact upon the City's minority public school students -- who comprise 73% of the State's minority students and approximately 84% of the City's public school enrollment -- in violation of specific implementing regulations of Title VI of the Civil Rights Act of 1964 (42 USC § 2000d; 34 CFR § 100.3[b][1], [2]).

The defendants who remained in the case by the time of trial, New York State, Governor George Pataki, and State Tax Commissioner Michael Urbach, vigorously dispute these claims. They argue that New York State spends more per student on education than all but three other states, that New York City spends more per student than any other large school district in the nation, and that this provision of funds is more than is necessary to provide a sound basic education to New York City's public school students. In the alternative, defendants argue that any failure to provide a constitutionally adequate education is the fault of New York City, for failing to contribute its fair share of school funding, and of the City's Board of Education, for failing to adequately manage the funding it receives from federal, State, and City sources. Defendants also assert that State education aid is allocated on a non-discriminatory basis.

The court holds that the education provided New York City students is so deficient that it falls below the constitutional floor set by the Education Article of the New York State Constitution. The court also finds that the State's actions are a substantial cause of this constitutional violation.

With respect to plaintiffs' claim under Title VI's implementing regulations, the court finds that the State school funding system has an adverse and disparate impact on minority public school children and that this disparate impact is not adequately justified by any reason related to education. Accordingly, plaintiffs have proven their federal law claim as well. The findings of fact that form the foundation for these legal conclusions are set forth in sections III - VI, below. However, before embarking on an examination of the massive factual record presented by the parties, it will be necessary first to provide a brief procedural history of the case, and a brief description of the arc of school funding litigation nationwide that began in California with Serrano v Priest (5 Cal3d 584, 487 P2d 1241 [1971]). This background will help place into context both the parties' arguments and the Court of Appeals' pronouncements concerning the content of the "sound basic education" standard.


I. THE PROCEDURAL HISTORY OF THIS CASE

Plaintiffs filed this action in May 1993 against the current defendants, an array of other elected officials, and the Commissioner of the State Education Department ("SED").1

At the same time the City of New York and the New York City Board of Education brought an action against the State and other defendants alleging virtually identical claims. Both actions came before this court.

Defendants moved to dismiss both complaints. This court partially granted defendants' motions as discussed in the following paragraphs.

This court dismissed the City's action on the ground that as a subdivision of the State subject to the State's direction and control the City could not challenge the constitutionality of the acts of its governmental parent.2

Several New York community school boards, governmental units which are part of the City's Board of Education, were dismissed as plaintiffs from the instant lawsuit on the same grounds (see Campaign for Fiscal Equity, Inc. v State of New York, 162 Misc2d 493, 496-7 [1994]).

This court also dismissed plaintiffs' federal and State equal protection claims as barred by decisions of the Supreme Court and the New York Court of Appeals, respectively. In San Antonio Indep. School District v Rodriguez (411 US 1 [1973]) the Supreme Court held that Texas' system of financing its school system largely through property taxes, which resulted in large school funding disparities between rich and poor areas of the state, did not violate the "rational basis" test of the equal protection clause of the Fourteenth Amendment to the United States Constitution. In Board of Education, Levittown Union Free School District (57 NY2d 27 [1982]) the Court of Appeals reached a similar conclusion with respect to the New York State Constitution's equal protection clause.

The Levittown Court thus rejected an attack on New York State's school funding based on an equality principle, a principle that posits that all school districts must be funded equally. However, it left open the door to an argument based on an adequacy principle, an argument based on the premise that the State must ensure an education to public school students that satisfies some basic minimum requirements (see Levittown, supra, 57 NY2d at 38). Following the distinction between claims based on equality and adequacy set forth in Levittown, this court let stand plaintiffs' claim that the State's funding mechanisms cause New York City public school students to receive something less than the sound basic education required by the Education Article of the New York State Constitution.

This court dismissed plaintiffs' claims based on Title VI, which bars discrimination by schools that receive federal funding. The complaint included no allegations of discriminatory intent, a necessary element of a Title VI claim.

By contrast intent is not an element of plaintiffs' claims under various implementing regulations promulgated by the federal Department of Education under Title VI. These regulations incorporate a disparate impact theory of liability. Accordingly this court let stand plaintiffs' claims under Title VI's implementing regulations (Campaign for Fiscal Equity, supra, 162 Misc2d at 499-500).

The result reached by this court was left intact by the Court of Appeals (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307 [1995] [referred to herein as "the 1995 decision"]). While the Court of Appeals affirmed this court's dismissal of certain parties and claims, it disagreed with aspects of this court's analysis of plaintiffs' constitutional claim. The Court of Appeals set forth a "template" to guide this court's determination as to whether defendants are providing New York City public school students with a sound basic education. The Court of Appeals' decision is discussed at greater length in section III below.

The parties delivered their opening statements on October 12, 1999. Testimony was taken during 111 court days over a seven- month period. The last of 72 witnesses left the stand on May 15, 2000. Over 4300 documents were admitted into evidence. Extensive post-trial briefs and proposed findings of fact were submitted by the parties, and the court heard closing arguments on July 29, 2000.


II. A BRIEF HISTORY OF SCHOOL FUNDING LITIGATION

School funding litigation in this State, from Levittown to the instant action, has followed a pattern seen in similar litigation around the nation. It is common among commentators to divide school funding litigation into three "waves" defined by the dominant legal theory asserted by plaintiffs (see Heise, State Constitutions, School Finance Litigation, and the "Third Wave"; From Equity to Adequacy, 68 Temp L Rev 1151, 1152 n 9; Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 BC L Rev 597). In fact there is much overlap between the legal theories asserted in these three "waves" (see Patt, School Finance Battles: Survey Says It's All Just a Change in Attitudes, 34 Harvard CR - CL L Rev 547 [1999]). However, the organization of the relevant cases into waves provides a reasonably accurate means for discussing trends in school funding litigation.

As is well known, most states rely in large measure upon local property taxes for education funding. Because of property value differences certain localities benefit from high tax revenues and others suffer from low tax revenues resulting in uneven funding among school districts.

In the first wave of cases, which ran from the late 1960s to the Supreme Court's San Antonio decision in 1973, plaintiffs argued that these variations in funding amounted to violations of the Equal Protection Clause of the federal Constitution. As noted above, this line of attack was foreclosed by the San Antonio decision, in which the Supreme Court declined to find that education was a "fundamental right" under the federal Constitution or that the plaintiffs in property-poor districts were a protected class. Accordingly, the San Antonio Court held that disparities in school funding would be judged by the "rational basis" test. The Supreme Court had no difficulty finding that it is permissible for states to jointly fund public schools with localities, and that the inequality in funding caused by differences in property wealth among school districts was a by-product of a state's rational decision to give localities a voice in funding and governing their local schools. (San Antonio, supra, 411 US at 54-5.)

The second wave of cases, beginning with the landmark New Jersey case of Robinson v Cahill (62 NJ 473, 303 A2d 273, cert denied 414 US 976 [1973]), concerned arguments based on provisions of state constitutions -- usually, but not always, the equal protection and education clauses of state constitutions.3

With the possible exception of Mississippi, all the states have some form of education clause in their respective state constitutions.4

Plaintiffs in the second wave cases generally argued that the existence of an education clause in a state constitution meant that education was a "fundamental right" and that any impingement of that right was subject to "strict scrutiny" under standard equal protection analysis. Levittown was one of the cases in this second wave, and it was among the majority of cases that found that unequal funding of school districts did not violate state equal protection clauses.

Commentators point to three cases decided in 1989 by the highest courts of Montana, Kentucky, and Texas as the beginning of the third wave (see Heise, supra, 68 Temple L Rev at 1162).5

With some exceptions, third wave cases de-emphasize equal protection analysis and rely instead solely on education clauses in state constitutions (e.g. Abbeville Co. School Dist. v State of South Carolina, 335 SC 58, 515 SE2d 535 [SC 1999]; McDuffy v Secretary of the Executive Office of Education, 415 Mass 545, 615 NE2d 516 [Mass 1993]; cf. Brigham v State, 166 Vt 246, 692 A2d 384 [Vt 1997] [post-1989 case employing equal protection analysis to strike down school funding scheme]).

Although the third wave cases contain greater diversity in legal reasoning than some commentators suggest, these cases are for the most part characterized by an emphasis on adequacy rather than equality. Plaintiffs in the initial two waves of school funding cases tended to emphasize reducing spending disparities and focused on input measures like per-pupil spending. Plaintiffs in third wave cases concentrate instead on the sufficiency of school funding and postulate that there is a constitutional floor of minimally adequate education to which public school students are entitled. Where courts have found that the education afforded public school students falls below this constitutional floor, they have found violations of their state constitutions (see Abbeville Co. School Dist. v State of South Carolina, 335 SC 58, 515 SE2d 535 [SC 1999]; DeRolph v State Of Ohio, 78 Ohio St3d 193, 677 NE2d 733 [Ohio 1997]; McDuffy v Secretary of the Executive Office of Education, 415 Mass 545, 615 NE2d 516 [Mass 1993]; Rose v The Council For Better Education 790 SW2d 186 [Ky 1989]).

In third wave cases courts are called on to give content to education clauses that are composed of terse generalities. For example, in Ohio the relevant constitutional provision requires the state legislature to secure "a thorough and efficient system of common schools" (Ohio Const art VI, § 2). In South Carolina the relevant constitutional provision provides only that the legislature "shall provide for the maintenance and support of a system of free public schools open to all children in the state" (SC Const art XI, § 3).

In Rose v The Council For Better Education (790 SW2d 186) the Supreme Court of Kentucky placed a detailed gloss upon that state's typically vague education clause. The court held that the constitutional mandate that the state "provide an efficient system of common schools throughout the state" meant that it must create a school system that has as its goal "each and every child[`s]" development of seven "capacities."6

The goals articulated in Rose, though relatively detailed and ambitious, have been followed by at least three states in defining their own education clauses (see Claremont School Dist. v Governor, 142 NH 462, 474, 703 A2d 1353 [NH 1997]; McDuffy v Secretary of the Executive Office of Education, 415 Mass 545, 617, 615 NE2d 516 [Mass 1993]; Alabama Coalition for Equity v Hunt, Op. Of the Justices, 624 So2d 107 [Ala 1993] [advisory opinion directing state legislature to follow order of trial court]).

Rose is instructive in this case as it highlights what the New York Court of Appeals did not do in its 1995 decision. Using the template provided by the Court of Appeals in its 1995 decision, this court defines in the next section the meaning of "sound basic education" guaranteed by New York State's Education Article.


III. THE LEGAL STANDARD FOR EVALUATING PLAINTIFFS' EDUCATION ARTICLE CLAIM


The Education Article of the New York State Constitution provides simply:

 


(NY Const art XI, § 1.)


The Court of Appeals has interpreted this article to require the provision of "a sound basic education." (Levittown, supra, 57 NY2d at 48.)

In its 1995 decision the Court of Appeals directed this court to undertake a three-part inquiry in evaluating plaintiffs' Education Article claim. First, this court must define what constitutes a sound basic education. Second, the court must determine whether New York City school children are provided with the opportunity to obtain a sound basic education in the City's public schools. Third, if New York City public school children do not have the opportunity to obtain a sound basic education, the court must determine whether there is a "causal link" between this failure and the State's system for funding public schools (86 NY2d at 317-18).

In this section the court provides a definition of sound basic education. In section IV the court will determine whether New York City public school students are provided with a sound basic education. In section V, the court will address the causation issue.

In its 1995 decision, the Court of Appeals stated:

 


(Id. at 317-18.)

The Court of Appeals also made it clear that the State must assure that certain essential inputs are provided to public school students.

 


(Id. at 317.)



A. The Education Article Requires a Sound Basic Education, Not One That is State of the Art

The defendants are correct when they argue that the Court of Appeals' 1995 decision did not call for the provision of a "state of the art" education. The Court clearly intended that a sound basic education should not be defined in a way that incorporates the highest aspirations of educators. The Court repeatedly used the terms "adequate," "basic," and "minimally adequate" to describe the education to be provided to the State's public school students. The Court of Appeals did not, as other states' high courts have done, adopt the ambitious "minimum goals" for an adequate education first set forth by Kentucky's Supreme Court in Rose v The Council For Better Education (790 SW2d 186, 212).

Further evidence that the Court of Appeals did not set the constitutional floor by reference to a state of the art education is the Court's statement that

 

(86 NY2d at 317.)

After the Court of Appeals' 1995 decision the New York State Board of Regents promulgated more rigorous educational standards. Therefore, contrary to plaintiffs' argument, these new standards a fortiori cannot constitute the definition of a sound basic education.

The new standards, called the Regents Learning Standards, were adopted in 1996 after more than a decade of development. The standards embrace seven areas of study.7

In each of these subject areas, four or five basic standards are set forth. Each standard is then applied at three levels (elementary, intermediate and commencement). Examples of student work that demonstrate mastery of the standards accompanies the standards. Some of the Regents Learning Standards set forth in general terms basic skills and areas of knowledge that fall well within a sound basic education.8

However, it is clear when looking at examples of student work that satisfy the standards that some of the standards require work that exceeds a sound basic education.9

Accordingly, the court must heed the Court of Appeals' direction to use the new standards with "prudence."

Even if the new Regents Learning Standards were not more rigorous than the old, this court would reject using the new standards to embody the definition of sound basic education. Admittedly it would tempting to use the Regents Learning Standards

to provide content for the sound basic education standard as the plaintiffs' urge. The Standards' specificity would probably help the court take the measure of the education provided New York City public school students, just as they help the Regents do the same. However, this approach would essentially define the ambit of a constitutional right by whatever a state agency says it is. This approach fails to give due deference to the State Constitution and to courts' final authority to "say what the law is." (Marbury v Madison, 1 Cranch [5 US] 137, 177; Schieffelin v Komfort, 212 NY 520, 530-31.)

Finally, the Court of Appeals left undisturbed Levittown's holding that inequalities in school funding among school districts do not run afoul of the State Constitution. Accordingly, defendants are correct that differences in spending among school districts do not, standing alone, establish that any of the lower- spending districts receive less than a sound basic education.


 


While it is important to recognize the limits of the sound basic education standard set forth by the Court of Appeals, this court rejects defendants' contention that the Court of Appeals gave a final definition of sound basic education and that that definition is limited to an education sufficient to allow high school graduates simply to serve as jurors and voters.

First, the portion of the Court of Appeals' decision quoted above makes clear that the Court did not "definitively specify what the constitutional concept and mandate of a sound basic education entails." (86 NY2d at 317.) Instead the Court held that "[o]nly after discovery and the development of a factual record can this issue be fully evaluated and resolved." (Id.)

Second, the Court of Appeals described its summary of a sound basic education as a "template." A template is a guide for constructing something; it is not the thing itself.

Finally, the statutory requirements for voting and for serving on a jury are low. With some minor exceptions, New York State law provides any United States citizen residing in the State who is 18 years of age or older, who is not mentally incompetent, who is not an incarcerated felon or previously incarcerated felon with an unexpired sentence or parole term, and who has not offered to sell his vote or buy that of another, may register to vote (see Election Law §§ 5-100, 5-102, 5-104, 5-106; 49 New York Jurisprudence2d Elections §§ 84-123). Similarly, jury service is open to anyone eighteen years or older who is a citizen of the United States and resident of the relevant county, who can understand and communicate in the English language, and who has not been convicted of a felony. (Judiciary Law § 510.) Clearly the Court of Appeals' template describes qualities above these low thresholds.

The Court of Appeals invoked voting and jury service as synecdoches for the larger concept of productive citizenship (see 86 NY2d at 316 [sound basic education should consist of skills necessary to enable children "to eventually function productively as civic participants capable of voting and serving on a jury"]). Productive citizenship means more than just being qualified to vote or serve as a juror, but to do so capably and knowledgeably. It connotes civic engagement. An engaged, capable voter needs the intellectual tools to evaluate complex issues, such as campaign finance reform, tax policy, and global warming, to name only a few. Ballot propositions in New York City, such as the charter reform proposal that was on the ballot in November 1999, can require a close reading and a familiarity with the structure of local government.

Similarly, a capable and productive citizen doesn't simply show up for jury service. Rather she is capable of serving impartially on trials that may require learning unfamiliar facts and concepts and new ways to communicate and reach decisions with her fellow jurors. To be sure, the jury is in some respects an anti- elitist institution where life experience and practical intelligence can be more important than formal education. Nonetheless, jurors may be called on to decide complex matters that require the verbal, reasoning, math, science, and socialization skills that should be imparted in public schools. Jurors today must determine questions of fact concerning DNA evidence, statistical analyses, and convoluted financial fraud, to name only three topics.

Defendants argue that passage of the Regents Competency Tests -- which measure the reading, writing and mathematic competency required of eighth to ninth graders -- is a sufficient indicator that a student is capable of voting or serving on a jury.10

Defendants' expert witness, Professor Herbert Walberg, a professor of education and psychology at the University of Illinois - Chicago, testified that most media coverage of elections is pitched at an eighth to ninth grade level of reading comprehension and that therefore any student who passes the Regents Competency Test is a productive citizen capable of voting or sitting on a jury. The court was not persuaded by this testimony. This argument implies that the Court of Appeals believed that the State Constitution requires only that graduates of New York City's high schools receive a ninth-grade education.

Beyond voting and jury service, productive citizenship implies engagement and contribution in the economy as well as in public life. Defendants make much of the fact that the Court of Appeals' 1995 decision contains no explicit reference to public schools' duty to give students the foundational skills they need to obtain productive employment or pursue higher education. The court finds that this duty is inherent in the Court of Appeals' admonition that students must be prepared to become productive citizens.

Any other interpretation of the 1995 decision would ignore a universally understood purpose of public education. Plaintiffs presented unrebutted expert testimony that preparing students for employment has traditionally been one of the rationales for public education. This point has been recognized by the New York State Education Department and in papers generated by national conferences on public education. The Supreme Court has long recognized that public education is meant to assist students to become "self-reliant and self-sufficient participants in society." (Wisconsin v Yoder, 406 US 205, 221 [1971].) Most state courts that have examined the substantive right to education under the education clauses of their constitutions have recognized both civic participation and preparation for employment as the basic purposes of public education.11

 

Finding that a sound basic education encompasses preparation for employment begs the question: what level of employment? The Court of Appeals' 1995 opinion does not explicitly address this issue. It is reasonable to assume that the Court of Appeals did not intend that the City's high school graduates need only be prepared for low-level jobs paying the minimum wage. On the other hand, the Court's use of the "minimally adequate" standard indicates that a sound basic education does not require that most of the City's public school graduates be accepted into elite four- year colleges and universities in preparation for lucrative careers. Some middle ground between these two extremes comports with the Court of Appeals' emphasis on preparation for productive citizenship and its eschewal of a state of the art standard.

The Court of Appeals' emphasis on productive citizenship connotes an education that contributes to society's economic needs as well as high school graduates'. An emphasis on the economic needs of society requires that this court look at the current and projected labor needs of the State of New York in general and the needs of New York City in particular. However, the labor needs of the City and State must be balanced with the needs of high school graduates. For example, while the greatest expansion in the local labor market might be composed of low level service jobs, such jobs frequently do not pay a living wage. A sound basic education would give New York City's high school graduates the opportunity to move beyond such work.

This analysis necessarily rests upon a dynamic interpretation of the Education Article. That the definition of sound basic education must evolve is axiomatic. If the meaning of the Education Article were to be frozen as of 1894, when it was added to the State Constitution, the Article would cease to have any relevance. It is undeniable that the level of skills necessary to obtain employment in today's economy exceed those required in 1894. "The Constitution is to be construed ... to give its provisions practical effect, so that it receives `a fair and liberal construction, not only according to its letter, but also according to its spirit and the general purposes of its enactment.'" (Ginsberg v Purcell, 51 NY2d 272, 276 [1980], quoting Pfingst v State of New York, 57 AD2d 163, 165 [1977].)

The remaining portion of this subsection constitutes findings of fact concerning the labor needs of New York City and State.

The unrebutted evidence presented at trial demonstrates that New York City has experienced a contraction of its manufacturing sector and a concomitant rise of its service sector. Stated in broad terms, jobs that pay a living wage in the service sector require a more rigorous formal education than jobs that have historically paid a living wage in the City's manufacturing sector. The plaintiffs submitted substantial evidence that there is a consensus among educators, labor experts, and business and government leaders around the nation that, as stated in the policy statement of the 1996 National Education Summit:

 


The educational demands of New York City's current economy were recently summarized by the Mayor's Advisory Task Force on the City University of New York ("CUNY"). The CUNY Task Force was created by Mayor Giuliani to examine issues faced by CUNY, including the extensive need for remedial education for matriculating students many of whom are graduates of New York City public schools. The Task Force was chaired by Benno Schmidt, formerly President of Yale University and, before that, Dean of the Columbia University School of Law. The Task Force retained both Price Waterhouse Coopers and the RAND Corporation to investigate CUNY's current operations.

The CUNY Task Force's final report, issued in June 1999, states that the minimum skills necessary to compete successfully for good jobs are "high-level academic skills."

 


Plaintiffs' expert Professor Henry Levin, who has conducted research and published numerous papers concerning the economics of education, testified that between 1969 and 1998, the earnings of high school dropouts and high school graduates have declined relative to those of college graduates. Dr. Levin also found that the earnings of high school graduates, adjusted for inflation, declined during that time. The court finds Dr. Levin's findings to be credible and well-founded.

The Governor's most recent Executive Budgets have stressed the increasing importance to the State of its high technology sector. However, there is a disconnect between the skills of the State's and City's labor forces and the needs of the high technology sector. Indeed, the myriad high-technology companies that have sprung up in the last five years in New York City's Silicon Alley must often go outside the City and State for personnel with appropriate skills.

In sum, this court finds that a sound basic education consists of the foundational skills that students need to become productive citizens capable of civic engagement and sustaining competitive employment.


C. Plaintiffs' Standing

Almost as an afterthought, defendants raise the issue of plaintiffs' standing in a one and-a-half page section near the end of their memorandum of law. Defendants do not explain why they raise this issue for the first time at this late juncture, after extensive motion practice raising other issues of justiciability and a seven-month trial. Plaintiffs, apparently unaware that defendants would raise this issue, do not mention it in their post-trial submissions.

Standing is a core requirement that a party requesting relief from a court have an injury in fact that is redressable by a judicial resolution (see Community Board 7 of Manhattan v Schaffer, 84 NY2d 148, 154-5 [1994]). An organization may have standing if one or more of its members would have standing to sue, if the claims it brings are germane to the organization's purposes, and if neither the claim nor the remedy necessarily requires the participation of the individual members of the organization (The Society of the Plastics Indus. v County of Suffolk, 77 NY2d 761, 775 [1991]).

Standing vel non is a threshold determination that, "when challenged, must be considered at the outset of any litigation." (Id at 769.) However, this court is compelled to reach the issue even though defendants herein raise it only at the eleventh hour. Standing, unlike capacity to sue, concerns this court's jurisdiction and may not be waived (City of New York v State of New York, supra, 86 NY2d at 292; cf. Santoro v Schreiber, 263 AD2d 953, lv dismissed 94 NY2d 817 [1999]).

Defendants argue that none of the plaintiffs established injury in fact at trial. The court disagrees. Lead plaintiff CFE is an organization comprised, inter alia, of school parent organizations. As discussed below, the children of these parents who attend public school in New York City have established an injury in fact which is redressable by this court. Pursuant to CPLR 1201 children must appear in court via their parent or guardian. Accordingly, CFE has members who have suffered an injury in fact redressable by this court. The other requirements of organizational standing are easily satisfied. CFE is an organization founded to reform school funding in New York State, so its mission is clearly related to the claims it asserts in this action. Finally, the participation of its members was not necessary to prosecute this action nor to devise a remedy.


 


The following constitute the court's findings of fact regarding the New York City School District and the education it provides its students.


 


New York City's public school system is the largest school district in the United States, comprised of approximately 1100 schools serving a student population of 1.1 million. In the 1999-2000 school year New York City's public schools employed over 135,000 people, including approximately 78,000 teachers, 19,000 teachers' aides, and 13,000 other administrators and pedagogical employees.


1. School Governance

Overall supervision of the New York City public school system is vested in the central Board of Education ("BOE") which has seven members. Each of the five Borough Presidents appoints one BOE member and the remaining two members are appointed by the Mayor. BOE appoints a Chancellor (currently Harold Levy) who is responsible for the operation of the school system.

The system is divided into 32 geographically-based school districts to provide elementary and middle school education and six high school districts for secondary school education.13

Each district is supervised by a district superintendent who, as of 1996, is responsible to the Chancellor for the operation of all the schools with their respective districts. Community school districts are also supervised by elected community school boards. High school districts are not supervised by community school districts and report only to the Chancellor. In addition to these geographically- based districts there are four non-geographical districts in New York City.14

In 1996, changes in State law altered the structure of the City's school system. The authority of community school boards to control and operate elementary and middle schools was revoked by the State legislature. The legislature gave the Chancellor the authority to appoint community school district superintendents from a list of candidates proffered by the community school boards, and the authority to terminate superintendents. These changes have increased the Chancellor's authority over community school district superintendents. Under this new governance statute, superintendents, rather than community school boards, have basic operating authority over how resources are used in the various districts.

Under New York State law, BOE is subject to the jurisdiction of the Board of Regents and the New York State Education Department ("SED"). The Board of Regents is composed of sixteen individuals, one from each of the State's twelve judicial districts, and four from the State at large, each of whom is elected to a five-year term by concurrent resolutions of both houses of the legislature. In any area where the legislature has not enacted specific statutes regarding educational policy, the policies issued by the Regents serve as the policies of the State. In practice, the Regents have broad legislative authority over the State's educational system and are charged with overseeing SED and choosing the State's Commissioner of Education. The Regents determine the standards by which all state elementary and secondary schools shall operate.

While the Regents have no authority to determine school financing, the Regents, along with the Commissioner of Education, make annual finance recommendations to the State legislature. Funding proposals are also contained in the Governor's Executive Budget, which states the Governor's opening position in subsequent negotiations with the legislature. The legislature eventually enacts an annual budget bill which is signed into law by the Governor.

SED is the Regents' administrative arm. Together with the Commissioner of Education, SED is charged with the general management and supervision of the State's public schools. Subject to specific statutory mandates and the general control of the Regents, the Commissioner of Education possesses supervisory authority over all aspects of the public schools. The Commissioner's authority includes the power to promulgate regulations, to examine and inspect school facilities and curricula, and to advise and guide school officers and other public officials in all districts and cities in the State with regard to their duties and the general management of the schools (Education Law §§ 215, 305[2]). SED is not responsible for the day-to-day operation of public schools, but it does influence the operation of the schools by specifying the nature of the curricula, determining teaching standards, and issuing regulations pertaining to the rights of students.


 

The students served by the New York City public schools come from varied backgrounds. Approximately 37% of students are Latino; 35% are African-American; 15.5% are White; 11.5% are Asian; and less than 1% are American Indian or Alaskan Native.

Close to 180 languages and dialects are spoken by students as their native tongue. BOE classifies approximately 16% of City public school students as "Limited English Proficient" ("LEP")15

a designation given to students who score below the 40th percentile on a language assessment test. The large number of English Language Learners ("ELLs") in New York City is not surprising given that almost one in eleven students is a recent immigrant.

A defining characteristic of the New York City public school system is its high concentration of students from poor and low income families. In the 1998-99 school year, approximately 442,000 children -- out of a total student attendance that year of 1,093,071 -- came from families receiving Aid to Families with Dependent Children. In the 1997-98 school 73% of students from kindergarten through 6th grade were eligible to participate in the free lunch program, compared with 5% in the rest of the State.

A large number of New York City public school students

have special needs that require them to attend full-time or part- time special education programs. As of December 1, 1997, the most recent figure submitted in evidence, more than 135,000 students were enrolled in such programs.

The intersection of factors such as students' poverty, immigration status, and limited English language proficiency means that New York City has a high proportion of students "at risk" for academic failure. In the Regents' formulation "at risk" students are defined as

 


The correlation between high poverty and low academic performance is well documented in numerous State publications, and was confirmed by fact and expert witnesses for both defendants and

plaintiffs. The evidence points to several causes of the depressed academic achievement of poor children. Plaintiffs' experts testified that children in poverty are often educationally disadvantaged by domestic environments that do not encourage, and sometimes impede, academic endeavor. Parents in low-income families frequently work long hours and often do not have much formal education themselves. Thus they frequently lack the time to engage in activities to bolster their children's education. Additionally, family income must be spent on food and shelter and frequently there is little money left over for books or other educational tools. For most low-income families a home computer remains unaffordable. However, even if money were available, low-income parents with little formal education may not appreciate the need for educational enrichment via books, educational toys or a computer. Children of low income families typically start school without such skills as knowledge of the alphabet, sound/symbol relationships, familiarity with counting and numbers, and vocabulary and concept development. All the disadvantages summarized in this paragraph may be compounded in poor single-parent families.

Other factors that often attend poverty, such as homelessness, frequent change of residence, teen pregnancy, and poor health, have negative effects on educational achievement.

Low income students frequently live in areas and attend schools with high concentrations of poverty, which limits their contact with higher achieving students from more privileged backgrounds. Isolation of low-income students from higher achieving peers can reinforce negative attitudes toward schooling.

Minority status is another socioeconomic indicator that is negatively correlated with student achievement, in part because it is linked with poverty. According to SED, minority students are "more likely than white students to attend public schools with concentrated poverty" where "concentrated poverty" is defined as more than 40% of students' families on public assistance. The evidence indicates that race and ethnicity are not pure proxies for poverty, however. Plaintiffs' expert Dr. David Grismer conducted a study of academic achievement by minorities in which he controlled for poverty status, parents' education and family income. Dr. Grismer found that race and ethnicity can be correlated with lower academic performance. The cause of this phenomenon has yet to be determined by social scientists. Explanations include the legacy of historic discrimination inflicted upon African-Americans and Latinos, and the rise of an anti-academic "oppositional" culture among some Blacks and Latinos that equates working hard in school with "acting White." It is not necessary to resolve this question in order to decide the issues presented by this lawsuit.

Recent immigrants also face formidable obstacles to academic success. They are plagued by the same factors, discussed above, that attend poverty. Lack of proficiency in English and unfamiliarity with American culture can also all have a negative effect on the academic performance of the children of recent immigrants.

As discussed in section V below, poverty, race, ethnicity, and immigration status are not in themselves determinative of student achievement. Demography is not destiny. The amount of melanin in a student's skin, the home country of her antecedents, the amount of money in the family bank account, are not the inexorable determinants of academic success. However, the life experiences summarized above that are correlated with poverty, race, ethnicity, and immigration status, do tend to depress academic achievement.

The evidence introduced at trial demonstrates that these negative life experiences can be overcome by public schools with sufficient resources well deployed. It is the clear policy of the State, as formulated by the Regents and SED, that all children can attain the substantive knowledge and master the skills expected of high school graduates. The court finds that the City's at risk children are capable of seizing the opportunity for a sound basic education if they are given sufficient resources.


 

In its 1995 decision the Court of Appeals directed this court to evaluate whether New York City public school students are receiving a sound basic education by examining both "inputs," the resources available in public schools, and "outputs," measures of student achievement, primarily test results and graduation rates.

The inputs listed by the Court of Appeals fall into three large categories:

 


 


3. "minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks."


(86 NY2d at 317.)

Teacher quality and curriculum are discussed in subsections C-E, below. The adequacy of School facilities and classrooms is discussed in subsections F-G. The adequacy of "instrumentalities of learning" are discussed in subsection H, below. Educational outputs are discussed in subsection I below.

Relevant educational inputs and outputs must be examined over multiple years. The evidence at trial demonstrates the obvious proposition that education is cumulative. Primary and secondary school students acquire mastery of subjects by building on an expanding base of knowledge. A student's result on a sixth grade reading examination reflects her experience in grades one through five, and not merely of what she has learned in sixth grade.


C. Measures of Teacher Quality

The evidence demonstrates the validity of the intuitive conclusion that quality of teaching has a direct effect on student outcomes. This finding is confirmed by SED studies, by the empirical studies of plaintiffs' experts, and by the observations of numerous BOE district superintendents who testified at trial. Even defendants' experts agreed that quality teaching plays a role in effective education, though they differed with plaintiffs on the extent of that role and the correct measures of teacher quality.

There are several probative measures of teacher quality, including the number of uncertified teachers teaching in New York City public schools, teachers' scores on certification exams, and the quality of teachers' undergraduate education.

By each of these measures, the quality of New York City's public school teachers -- in the aggregate -- is inadequate. The court hastens to add that there are many excellent and dedicated teachers employed in New York City public schools -- many of whom foster learning under extremely adverse conditions. It is not hyperbolic to describe some New York City public school teachers as heroes. However, there are too many ill-trained and inexperienced teachers to meet the difficult challenges presented in the New York City public schools.


 

As part of its effort to ensure that qualified teachers are employed in the State's public schools, the State created a system of certification. New York City has an overlapping system of license requirements for teachers. Under the current system in effect until 2003, the State has two categories of certification and a third category for uncertified teachers called temporary license.16

In 2003 the Regents will impose more rigorous certification standards.

It is possible for an uncertified teacher to be an effective pedagogue. However, the evidence at trial demonstrates that lack of certification is generally an indicator that a teacher falls below minimal adequacy. The court also finds that the converse is not true. Numerous BOE personnel, including district supervisors, testified that certification standing alone is no guarantee of teacher quality. The court finds this testimony to be credible.

For the last decade, approximately 10 to 14% of New York City's public school teachers have lacked certification in any given school year. The specific percentage of uncertified teachers listed as employed in a given district at a specific time is dependent upon which persons are counted as teachers, the definition of certification used, and the time in the school year that certification is assessed. Although figures from various sources differ slightly, they demonstrate that there is a high percentage of uncertified teachers working in New York City's public schools.

Plaintiffs' expert Professor Hamilton Langford, a professor of economics and public policy at the State University of New York at Albany, defined as uncertified any teacher who does not teach a single course in a subject area for which he is certified. (Such individuals may be certified in another subject.) Dr. Langford's research demonstrates that in the 1997-98 school year, the last year for which data were available, 13.7% of New York City's public school teachers were not certified in any subject they taught, as compared with only 3.3% in the rest of the State. Using a slightly different standard, SED issued a report that found that in 1997-98 17% of New York City's public school teachers taught more than 20% of their time in a subject in which they lack state certification, compared with a statewide average (which includes New York City) of 9%.17

Statistics from BOE demonstrate that the percentage of uncertified teachers has fluctuated between 11.4% and 13.3% between the 1991-92 and 1999-2000 school years.18

The highest percentage of uncertified teachers in New York City high schools tend to be in math and sciences. BOE records show that as of October 1, 1999, 476 uncertified teachers taught high school biology, 152 taught high school chemistry, and 435 taught high school mathematics. Using the conservative assumptions that each teacher instructs five classes a day of 25 students each (most high school classes are larger), and that these uncertified teachers were not replaced by certified ones, last year 59,500 students were taught high school biology by an uncertified teacher, 19,000 students were taught high school chemistry by an uncertified teacher, and 54,375 students were taught high school mathematics by an uncertified teacher.

Defendants contend that these shortages are in subjects in which there is a nationwide shortage of teachers. However, in New York State localities other than New York City experience nowhere near the shortages seen in the City.

Uncertified teachers tend to be concentrated in New York City's lowest performing schools. Such schools often present the most difficult working conditions, such as poor physical plants, large class sizes, and locations in high-crime neighborhoods. To some degree, this concentration of uncertified teachers in low performing schools is enabled by the teachers' collective bargaining agreement with BOE. With some restrictions, experienced teachers are able to transfer out of such schools pursuant to a contract provision that gives senior teachers priority in filling vacant positions in other schools. It is understandable that many, though not all, experienced teachers faced with the poor working conditions of many low performing schools would take the opportunity to transfer to schools in safer neighborhoods with better working conditions. This phenomenon is likely to increase in the coming years as retirements increase (for reasons described below) providing more opportunities for the remaining experienced teachers to transfer from low performing schools.

Indeed BOE has failed to employ sufficient certified staff in its very worst schools, known as Schools Under Registration Review ("SURR")19

, despite a mandate from SED that it hire only certified teachers in such schools as of September 1, 1999. The Regents have mandated that all schools shall have only certified teachers by 2003. The evidence suggests that BOE will have great difficulty fulfilling this mandate.

Special education programs have a high proportion of uncertified teachers. In District 75, which comprises all of the self-contained special education schools for severely and profoundly disabled children, 25% of the teachers are uncertified. In bilingual special education classes, nearly 50% of the teachers are uncertified.

The Regents' decisions to remove uncertified teachers from SURR schools, and from the system entirely by 2003, are evidence that uncertified teachers are less able to provide New York City public school children with a sound basic education.


2. Passage Rates on Certification Examinations

The probative evidence at trial demonstrates that passage rates on certification examinations is predictive of teacher performance. Such evidence included expert testimony by Professor Ronald Ferguson of the Kennedy School of Government at Harvard University. Using voluminous data collected in Texas during the 1980s, Dr. Ferguson convincingly demonstrated a strong positive relationship between teacher quality as measured by certification test scores and student achievement.

Defendants' expert, Professor Eric Hanushek of the Economics Department at the University of Rochester, drew an opposite conclusion from Texas data concerning teacher test scores. Apparently this data was from more recent years than those studied by Dr. Ferguson, but Dr. Hanushek's testimony on this matter was terse. Dr. Hanushek testified that data from Texas tends to show teachers with higher test scores do not affect student outcomes. As Dr. Hanushek set forth only his conclusion regarding the data without any discussion of his methodology, his testimony does not rebut Dr. Ferguson's.

Plaintiffs' expert Dr. Langford demonstrated that New York City public school teachers have a much higher failure rate on the State's certification examinations than do public school teachers in the rest of the State. For teachers employed in 1997- 98, the first-time failure rate of the New York City public school teaching force on the basic Liberal Arts and Science Test ("LAST"), which is now required for all teachers, was 31.1%, compared with 4.7% for teachers elsewhere in the State. The average first score on the LAST for City teachers was 236.3 (220 is a passing score) while the average first score on the test for teachers in the rest of the State was 261.6. New York City teachers employed as of 1997- 98 also did poorly on their first attempts on the Elementary and Secondary Assessment of Teaching Skills Written Tests ("Elementary ATS" and "Secondary ATS"). Nearly 27% of New York City teachers failed the Elementary ATS, compared with 3% of their peers in the rest of the State; 25.7% failed the Secondary ATS, compared with 3.5% in the rest of the State.

On many of the content or subject matter examinations, which test teachers' knowledge of their particular subject, New York City teachers' failure rates were even higher. For example 42.4% of the math teachers currently teaching in New York City's public schools failed the math content examination at least once.

Dr. Langford's testimony was undercut somewhat by one of defendants' experts, Professor Michael Podgursky, Chair of the Economics Department at the University of Missouri. Dr. Podgursky testified that Langford's comparison of City teacher's test scores with those of teachers in other parts of the State may have been marred by incomplete data. In particular, Dr. Langford's data appeared to have a disproportionate number of test scores for New York City compared with other areas in the State. Plaintiffs opine that this may have been a result of the admittedly higher amount of turnover in New York City schools, which would result in more teachers taking the tests in the City, but this was not established as a fact. Additionally, because of the unavailability of test scores for teachers who were hired prior to the mid-1980s, Dr. Langford's test score analysis covers about 40% of New York City's teachers. Despite these valid criticisms of his study, Dr. Langford's testimony concerning teacher test scores is some evidence that New York City teachers are in general less qualified than those in the rest of the State.


3. Experience

The unrebutted evidence validates the unremarkable proposition that teachers, like any professionals, frequently require several years' experience to achieve competency. The court finds that teaching experience of two years or less is correlated with poor teacher quality.

New York City public school teachers tend to have fewer years' experience than teachers in the remainder of the State. The attrition rate of new teachers is more than 50% in their first six years according to BOE data. In addition to negatively affecting teacher quality, high turnover can negatively affect a school's cohesiveness and ability to create cooperative effort among teachers. The large number of inexperienced teachers -- who, like uncertified teachers, are disproportionately assigned to the schools with the greatest number of at risk students -- makes it more difficult for New York City public schools to meet the needs of its students.


4. College or University Attended and Degree Obtained

Finally, plaintiffs presented probative evidence that the average New York City public school teacher attended a less competitive college than the average public school teacher in the rest of the State. For this analysis, plaintiffs ranked colleges using: 1) Barron's college rankings, 2) the average SAT scores and grades of admitted high school seniors, and 3) the average scores on State certification exams of the colleges' graduates. According to Dr. Langford's findings, which are based on State data, in 1997- 98 45% of New York City's public school teachers held undergraduate degrees from CUNY institutions, and 48.8% held masters degrees from CUNY institutions. BOE data show somewhat smaller, though still significant, percentages of New York City teachers who have received undergraduate and masters degrees from CUNY.

Dr. Langford's analysis also demonstrates that, in addition to hiring teachers from less competitive institutions, New York City tends to hire its teachers from the less qualified graduates of any given undergraduate institution.

The Regents and SED have found that the quality of undergraduate teacher programs can have an effect on public school student outcomes. Prompted by a report of its Task Force on Teaching, the Regents have recently heightened the requirements for teacher education programs in New York State. The findings of SED and the Regents are strong evidence that student outcomes are affected by teacher quality as measured by undergraduate institution attended.

As measured by the percentage of teachers with at least a master's degree, New York City's public school teachers again compare unfavorably with those in the rest of the State. In 1997- 98, 16% of New York City's teachers held only a bachelor's degree or less, compared with 10.9% of teachers in the rest of the State. The sole measure by which City public school teachers compare favorably with the teachers from the rest of the State is that a higher percentage of City teachers have a master's degree plus 30 credits. However, there was no evidence at trial that the additional 30 credits is a measure of teacher quality. The 30 credits may be in subjects wholly unrelated to the subject(s) taught by a teacher.


5. Professional Development

Professional in-service training, commonly known as professional development, involves the teaching of many skills to new and experienced educators. It includes teaching everyday teacher responsibilities such as classroom management, discipline, attendance taking and lesson planning. It also includes training to keep staff knowledgeable regarding content in specific subjects. Finally, it includes the teaching of instructional strategies, such as methods for determining whether students have mastered course material.

Both SED and BOE have recognized the positive effects of professional development programs on both new and experienced teachers. The Regents have stated that professional development is particularly crucial to help teachers deal with the needs of at risk students. The substantial inadequacies of the New York City public school teaching force enhances the need for effective professional development programs.

Professional development is essential in training and maintaining qualified teachers. Among other benefits effective professional development can ameliorate the shortcomings of new teachers, keep teachers current in their subject areas, and disseminate techniques for teaching at risk students. The evidence demonstrates that professional development is most effective when it is ongoing, tailored to a school's local needs, and conducted in schools themselves rather than at remote locations. Community school district 2, one of the most effective school districts in New York City, has placed special emphasis on such intensive, school- based professional development. District 2's success in fostering a well-qualified corps of teachers is evidence of the benefits of professional development.

Plaintiffs put on the stand SED personnel and several district superintendents all of whom testified that the professional development currently being provided to New York City public school teachers is inadequate, particularly given the number of at risk students that attend the City's public schools. Districts with the greatest proportion of at risk students often spend the least on professional development. Because of the larger proportion of uncertified Math and Science teachers, the need for professional development in these areas is particularly acute. The court finds that this testimony was credible.

For their part, defendants recite the litany of professional development resources that BOE makes available to its teachers, and argue that the results of an internal BOE survey, the Performance Assessment in Schools Survey ("PASS"), demonstrate that teachers are satisfied with these offerings. For the reasons set forth in the next section the PASS survey is not probative. After weighing the evidence offered by both sides on this issue, the court finds that the professional development currently provided to New York City public school teachers is inadequate.


 


Defendants argue that the most accurate measures of teacher quality are two internal rating mechanisms used by BOE. The court disagrees and finds that these two internal mechanisms, referred to herein as "U ratings" and "PASS reviews," are not reliable.

Each year, New York City teachers are reviewed by their principals and receive either a "U" for unsatisfactory or an "S" for satisfactory. BOE records demonstrate that very few New York City teachers receive Us. Defendants argue that this small number of unsatisfactory ratings is evidence that the City's public school teachers are qualified to teach.

The court finds credible the testimony of numerous current and former BOE personnel who stated that unsatisfactory ratings, in the words of former district superintendent Granger Ward, are "really reserved for those people who were the worst of the worst, those people who are actually -- endangering students in what they were doing in the classroom." Mr. Ward described the system as "almost a system of triage. You are focusing on the worst, the absolute worst, and trying to get those individuals out of classroom settings. If you had people who were mediocre or not the absolute worst, you didn't put energy into trying to remove them."

The reasons why the U ratings have become a system for triage and not for accurate measurement of teacher quality were clearly set forth at trial. First, given the shortage of qualified teachers principals are aware that it may be difficult to replace a teacher rated unsatisfactory with a more effective teacher. If no replacement is found a principal must cobble together coverage by relying on substitute teachers and/or by assigning extra classes to permanent teachers who already have a full class load. Such improvised solutions strain a school's resources and rarely provide students with adequate instruction. Second, the administrative process required to rate a teacher unsatisfactory is arduous. A substantial record of the teachers' inadequacies -- and of the administration's attempts to intervene and remediate -- must be developed. Each documented item is potentially subject to the grievance procedure set forth in the teachers' contract. Third, the teachers' contract also restricts transfers of unsatisfactory teachers to other schools. Therefore, a principal who succeeds in rating a teacher unsatisfactory must retain that teacher on her employee roster.

The PASS ("Performance Assessment in Schools Survey") results are also not reliable measures of teacher quality. Under SED regulations, a school that performs poorly, even if not at the SURR level, must prepare a Comprehensive Education Plan ("CEP"). In an effort to help schools in this self-assessment BOE developed the PASS questionnaire. The PASS questionnaire is designed around the attributes of model, exemplary schools. The elements of such schools are used as a benchmark for self-assessment and the results of the PASS survey provide an organized basis for preparation of a CEP. A PASS review team is comprised of administrators, parents and teachers from the school, and an outside observer from BOE. The team completes the PASS review on a consensus basis.

The original purpose of the PASS review became obscured as schools began to worry that PASS reviews would be used by BOE for evaluating and comparing schools. According to Robert Tobias, the head of BOE's Division of Assessment and Accountability, school administrators' concern that the PASS survey would be used as an accountability mechanism causes them to paint a rosy, rather than a realistic, picture of their schools. Instead of engaging in internal assessment, schools use PASS for public relations. Additionally, there is credible evidence that many PASS reviewers fail to apprehend the true measures of an exemplary school, and therefore grade schools by a lower standard. Most of the district superintendents who testified agreed that PASS reviews are not objective measures of school quality.

Defendants' expert who testified regarding PASS reviews Dr. Christine Rossell, a Professor of Political Science at Boston University, appeared to have little knowledge about how the reviews were actually conducted. Dr. Rossell apparently misunderstand the reviews' scoring system in attempting to aggregate the results of the reviews. Accordingly, her testimony is not probative.


 

New York City's lack of a sufficient number of qualified teachers is in large measure a function of its lack of competitiveness in the relevant labor market. Unless steps are taken to improve New York City's competitiveness as compared to neighboring school districts, this problem will only get worse in the years to come.

New York City competes in a common labor market for teachers and other college-educated individuals with Westchester, Nassau, Suffolk, Rockland, and, to a lesser extent, Orange and Putnam counties. New York City is at a competitive disadvantage in this labor market, principally because New York City School teachers make substantially less and generally labor under more difficult working conditions than their suburban counterparts.

Figures ranging from 20% to 36% were used by State and BOE officials to quantify the difference in teacher salaries between New York City and its suburbs. The range on these figures arises from differences in both the experience levels of the teachers being compared as well as the suburbs included in the comparisons. Plaintiffs' expert Dr. Langford conducted an independent analysis which confirms that average salaries of New York City teachers lag substantially behind those of Nassau, Rockland, Suffolk and Westchester for teachers at all levels of experience.

Salary differentials are consistently mentioned in SED and BOE documents as the primary reason qualified teachers choose to work in suburban rather than City schools. These findings were echoed in the testimony of BOE personnel most knowledgeable about hiring. Additionally, Dr. Ferguson's analysis of the Texas data establishes a clear statistically significant association between the performance of students within a school district and the salaries paid to teachers within that school district. Salary differentials hurt New York City in its search for qualified teachers.

New York City's public schools' lack of competitiveness in the relevant labor market can be seen by comparing the qualifications of New York City's public school teachers with those who work in public schools in the counties near New York City.

Dr. Langford conducted a study that suggests that New York City attracts, on average, the least qualified teachers in the relevant labor pool. He compared the qualifications of teachers residing in the City who teach in New York City public schools with those who reside in the City but teach in public schools in surrounding counties. The latter category was in the aggregate more qualified as measured by certification rates and by failure rates on the LAST certification examination. He also compared the qualifications of teachers residing in surrounding counties who teach in New York City with those who both reside and teach in the surrounding counties. Again, the teachers in this study who taught in the surrounding counties were more qualified on average than those who commuted into the City to teach in public schools.

Dr. Langford also found that, while teachers in both New York City and its surrounding suburbs earn less on average than other college-educated workers, the gap between teachers and other college educated employees in the City is substantially greater than the gap between teachers and other college-educated workers in the suburbs. The court credits Dr. Langford's findings as the result of a well-designed study based on accurate data.

In addition to losing out in the competition for hiring teachers seeking employment, New York City has experienced a small but persistent annual "brain drain" of some of its most experienced teachers to the public schools of surrounding counties.

Plaintiffs presented a number of witnesses who testified that New York City's competitiveness is also hurt by crumbling school infrastructure (discussed in Section F, below), the location of some schools in high crime areas, the perception of teachers that New York City public schools are unsafe, and large class sizes. The court finds that this testimony is credible.

New obstacles faced by BOE in the coming years in attracting a sufficient number of qualified teachers will include increased attrition in its workforce and the imposition of higher certification standards.

Between the 2000-01 and 2003-04 school years, BOE predicts that it will need 41,105 new teachers due to normal rates of attrition. Additionally, BOE predicts a wave of retirements over the next five years as a large cohort of teachers known as Tier 1 eligibles reach their twentieth year of employment.20

Tier 1 eligibles may retire after twenty years with a pension totaling 50% of their salary. Adding the predicted retirements of Tier 1 eligibles to normal attrition rates swells the projected number of teacher slots to be filled in the next four years to approximately 54,000. The need to fill between 41,000 and 54,000 slots in four years means that BOE will have to hire between 8,000 and 14,000 new teachers a year, far more than the approximately 6,200 teachers hired annually between 1993-94 and 1999-2000.

BOE will have to fill these teacher slots at a time when it will be trying to reduce the number of uncertified teachers working in its SURR schools and, by 2003, end its dependence on uncertified teachers entirely. As already noted the Regents have mandated that all schools have only certified teachers on staff by 2003.

Plaintiffs also submitted probative evidence that BOE has increasingly been unable to fill principal, assistant principal and other administrative positions with adequately qualified individuals because of low salaries and poor working conditions. The evidence demonstrates that these administrators play a crucial role in building and maintaining effective schools.

Defendants' attempts to rebut plaintiffs' evidence concerning New York City's competitiveness are not persuasive. First, defendants argue that the relevant salary comparison was not between New York City and the counties surrounding it, but rather between New York City and other large metropolitan areas. By this measure New York City teachers are better paid than their peers in many, though not all, large cities in the United States. This analysis is of limited probative value. The analysis fails to account for cost of living differences among cities. It also assumes a national labor market for teachers. While it is true that BOE recruits out of state (and does a small amount of recruiting in a few foreign countries) no evidence was presented at trial concerning the extent of a national market for teachers.

Defendants also argue that New York City public school salaries are actually competitive in comparison with the surrounding suburbs' because New York City teachers' contract allows them to work shorter hours than their suburban peers. According to charts presented by Dr. Podgursky, New York City's teacher workday is shorter than that of a representative sample of 16 other school districts in the State. Dr. Podgursky testified that when the shorter day is considered New York City's per hour teacher pay falls in the middle of these 16 districts'.

Dr. Podgursky's analysis is based on the working hours specified in collective bargaining agreements governing the relevant school districts. These collective bargaining agreements were apparently obtained by counsel and there was no testimony at trial that the work hours specified therein have not been superseded or modified by side agreements or amendments.

Even assuming that the collective bargaining agreements relied upon by Dr. Podgursky are accurate, an analysis based purely on hours at school is incomplete. Dr. Podgursky's study does not examine how suburban schools deploy teachers during this longer workday. Moreover, as discussed below, New York City class sizes are higher than those in the surrounding suburbs, which suggests that New York City public school teachers have more students to follow and homework to grade. Finally, with respect to the approximately 68% of New York City public school teachers who reside in the City, Dr. Podgursky's analysis does not account for the City's greater cost of living. In all events, the allegedly shorter workday of New York City's public school teachers has not provided the City an advantage in the competition for qualified teachers, as the evidence discussed above demonstrates.

Finally, defendants criticize BOE's recruitment efforts and argue that BOE's poor outreach is in part to blame for any shortage of qualified teachers. For example, BOE has lost opportunities to hire qualified teachers by late recruiting. The court finds that, given lower salaries and often difficult working conditions, BOE has done an adequate job in recruiting new teachers. While BOE's efforts prior to 1997 were sometimes haphazard and even counter-productive, it has since engaged in a number of initiatives designed to attract new teachers to its schools. The problem is not BOE's sales pitch, but its product.


E. Curricula

BOE has in place "reasonably up-to-date basic curricula" for the provision of a sound basic education. (86 NY2d at 317.) The problem is not with the content of the curricula, but rather with its implementation. Inadequate teaching and, as discussed below, inadequate school facilities and instrumentalities of learning, have hampered the delivery of curricula.

The failure to assure the delivery of core curricula has been exacerbated by a chronic defunding over the last twenty years of two non-core subjects that can play an important supporting role in preparing students to become productive citizens: arts and physical education.

The Court of Appeals' definition of sound basic education does not mention arts instruction or physical education. The court interprets this omission -- in conjunction with the Court of Appeals' emphasis on a "minimally adequate" education -- to mean that arts instruction and physical instruction for their own sake are not part of a sound basic education under the State's Education Article.

However, arts education and physical education are important means of supporting the teaching of other subject areas that are part of a sound basic education.

For English language learners and other at risk students visual and performing arts provide a means of expression and achievement which foster self-confidence and positive attitudes about school. A well run arts program can induce students to attend school. Additionally, in the hands of an imaginative teacher the arts can provide a jumping off point for the discussion of important aspects of contemporary society. Examples are numerous and self- evident. Without being too reductive, the production of plays such as Inherit the Wind, Richard II, or A Doll's House can be used to provoke discussion among students concerning the importance of dissent, the organization of government, and the role of women in society. While merely reading the play in a class may enable such discussions, a production seen by students in other classes would likely add to the didactic impact. Visual art with political content such as Francisco Goya's, Honore Daumier's, and Hans Haacke's can also be used to enhance learning. Arts from non- Western societies can be an effective means of introducing the belief systems of such societies to students in the United States.21

All these pedagogic uses of the arts can assist schools in molding students into productive citizens. Finally, it is worth noting that an impressive amount of homegrown artistic talent has passed through New York City's public schools. Nurturing such talent may go beyond a sound basic education but certainly it is a public good.22

Physical education can have similar effects in supporting a sound basic education. Sports can aid students in acquiring important socialization skills such as cooperation, good sportsmanship, and the importance of practice as a means of achieving mastery. A good sports program may increase school attendance of at risk students.

Both arts and physical education were severely defunded after New York City's fiscal crisis in the mid-1970s. Budget cutbacks affected every aspect of the arts curriculum until the initiation of Project ARTS in 1997. Project ARTS is a collaborative project between the City and BOE through which the City has contributed $150 million to restoring arts education in New York City. Project ARTS, while a step in the right direction, cannot restore the arts curriculum overnight after 20 years of neglect. School space formerly dedicated to the arts has been converted to other purposes, as arts programs atrophied and the City's public schools became increasingly overcrowded. The restoration of an adequate physical education program faces similar obstacles. Over the last twenty years gymnasiums and playgrounds were allowed to deteriorate and/or were converted into instructional space due to overcrowding. The credible evidence at trial demonstrated that arts and physical education need their own dedicated spaces within a school.

The dilapidated state of the City's public school buildings is described in the next section.


F. School Facilities and Classrooms

The second "input" set forth in the Court of Appeals' 1995 decision concerns the physical plant in which a sound basic education is to take place. "Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat and air to permit children to learn." (86 NY2d at 317.)

A substantial number of BOE's approximately 1100 facilities require major infrastructural repair to items such as roofs and facades. Many more facilities are plagued by overcrowding, poor wiring, pock-marked plaster and peeling paint, inadequate (or non-existent) climate control, and other deficiencies that speak of a history of neglect.

Though it would appear to be self-evident that such conditions would impede, rather than facilitate, the delivery of a sound basic education, this proposition is difficult to prove or disprove. For the reasons set forth below the court finds that there is a causal link between New York City's poor school facilities and the performance of students, though the strength of that link is difficult to measure.


1. The Condition of City Public Schools

For more than a decade, the parlous physical state of New York City's approximately 1100 public school buildings has been recognized in written pronouncements of the State legislature, SED and BOE. The credible testimony at trial confirmed the bleak picture.

In 1988, the State legislature created the School Construction Authority ("SCA"), a separate authority for the construction of schools, based on legislative findings that decried the "deplorable" condition of the City's schools.

 


(New York School Construction Auth. Act L 1988, ch 738 §1 [approved December 19, 1988].)


a. SED and BOE Documents

The creation of SCA did not succeed in shoring up City public schools' crumbling infrastructure. The lack of progress is documented in a series of Master Plans and five-year capital plans developed by BOE during the past decade. In 1989 the Board of Education developed its Year 2000 Master Plan to "determine the level of effort required to restore the New York City public school system to a state of good repair and to modernize and expand it by the year 2000." The Year 2000 Master Plan concluded that "the estimated cost for completely upgrading and modernizing the school system by the 21st Century is $17 billion in current dollars." BOE did not come close to spending this amount by the close of 1999.

When it prepared the Year 2000 Master Plan, BOE also prepared a five year capital plan for the period 1990-94. Unlike Master Plans, which identify all the needs of the system over a ten- year period, the five year capital plans identify only those items that require urgent attention and can be reasonably funded and fixed within a five year period.

Four years later, BOE again reviewed the state of public school facilities in its Year 2003 Master Plan. As then-Chancellor Fernandez wrote: "The year 2003 Master Plan is a comprehensive needs assessment based on all available technical data and information ... ." The Year 2003 Master Plan stated that the total cost for meeting the system's needs by 2003 was $25 billion in 1992 dollars.23

The Plan noted that though the previous Master Plan had called for over $17 billion to be spent over ten years, the first five-year capital plan had been funded at only $4.3 billion. The Year 2003 Master Plan reflects a system unable to maintain even an inadequate status quo. The Plan notes:

 


The Year 2003 Master Plan found that 85% of the system needed some kind of capital work, with 424 buildings requiring modernization. The Plan identified a severe impediment to maintaining, modernizing and replacing schools which is discussed at greater length below: overcrowding in New York City public schools.

The next BOE five year capital plan (covering fiscal years 1995-99) described a "crisis on three fronts". On the first front, the capital plan noted that "[t]oday practically every building in the system is plagued by disrepair." The second front described in the plan was a worsening capacity crisis driven by explosive growth in enrollment. The third front was antiquated building interiors inadequate to support current educational needs. While BOE called for $7.5 billion in "barebones" funding, this five year plan was originally budgeted at $3.4 billion, an amount later increased to $4.9 billion. BOE concluded that the inadequate funding of the plan would cause the overall condition of the schools to get worse, not better. Additionally, many of the major modernizations of new schools originally funded for design back in the previous five-year plan were not scheduled for construction during the 1995-99 plan.

In June 1995 a commission appointed by then-Chancellor Cortines issued "A Report of the Commission on School Facilities and Maintenance Reform," known as the Levy Commission Report after its Chair, Harold Levy.24

The Levy Commission found that the condition of New York City public school facilities constituted "a school infrastructure crisis." The Levy Commission discovered "shocking conditions in our schools, such as collapsing building facades, thoroughly rusted structural beams, falling masonry, precariously hung windows, and roof gables held together with wire." It found more than 760 buildings had serious problems with their heating and ventilation systems and 424 buildings required wholesale modernization. The Levy Commission also decried the fact that more than a quarter of all public schools, 343 buildings, had coal burning boilers -- a form of heating apparently that is extinct or nearly so in the rest of the City.25

These findings were echoed in reports issued by the Regents and SED in 1996 and 1997. The Regents determined that facilities' needs in New York City were greater in dollar figures than those of the rest of the State combined.



b. The United Federation of Teachers' Lawsuit

In 1994, the United Federation of Teachers sued BOE over the conditions of New York City's public school facilities. The late Justice Friedman's 1998 decision notes that BOE did not contest the deplorable conditions in the City's schools. The decision cited a BOE memorandum that found 237 school buildings had immediately hazardous exterior conditions in need of repair. This list of 237 did not include nearly 150 buildings that had defective roofs or other building code violations. The court ordered the parties to settle a judgment providing for a safety plan. The plan adopted involved the extensive use of temporary scaffolding to safeguard people but did not involve the actual repair of defective conditions. As a result of this judgment close to one third of all school buildings in New York City at the time of trial had sidewalk shedding around their exteriors -- simply to ensure minimal safety, not in preparation for remedial measures.


c. Building Condition Assessment Survey

The most recent comprehensive survey of the condition of New York City public school buildings is the Building Condition Assessment Survey ("BCAS"), conducted between late 1997 and mid- 1998. Outside engineers and architects conducted visual inspection of approximately 340 building components identified by BOE. Each component was given a numerical rating: 1 (good), 2 (good to fair), 3 (fair), 4 (fair to poor) or 5 (poor).26

 

Because not all components of a building are of equal importance, the outside engineers also assigned two additional ratings to each component: "purpose of action" and "urgency of action."

The "purpose of action" ratings give some sense of the importance of a component's condition. In other words a building's parapet wall -- though it may be rated "3" (fair condition) overall -- could have a portion that is severely cracked. Such a wall might be considered a greater priority because of safety concerns than, say, lighting in a gym that is rated "5" (poor condition). The most important purpose of action rating is "life safety" which describes a situation where the physical safety of the children and teachers who use the building is at risk. The second most important is "structural" which means that the condition affects the building's structural integrity. The third category, "regulation code," denotes a condition that is in violation of applicable building codes and regulations. The remaining categories describe less severe conditions.

The "urgency of action" categories describe the time frame within which work should be done based on the rate of deterioration of the component.

The BCAS results demonstrate that hundreds of New York City public school buildings have serious structural deficiencies. 231 school buildings were identified as having three to four major exterior components ranked with a 3, 4 or 5 coupled with a life safety or structural "purpose of action" rating. BOE has determined that such scores require complete overhauls of these exteriors and there was no evidence at trial tending to cast any doubt on that conclusion. An additional 114 buildings have roofs that must be replaced. Still more buildings have severe problems with their windows and external masonry. Each of these problems concern the integrity of buildings' external "envelopes" which the evidence demonstrates is a prerequisite to buildings' physical health.

Defendants agree that BCAS is the most probative measure of the condition of New York City public school buildings, but they differ in their interpretation of BCAS data. Defendants offered an interpretation of BCAS by their expert witness, Robert O'Toole, who was for ten years the Chief Fiscal Officer in charge of the Tucson, Arizona School District where one of his duties was oversight of school facilities. Mr. O'Toole conducted two analyses based on BCAS data designed to gauge the health of New York City school facilities.

In his first analysis, Mr. O'Toole examined the average scores of 251 of the approximately 350 building components examined in the BCAS survey. According to Mr. O'Toole these 251 components embraced all the components in the architectural, electrical and mechanical categories, which he described as the most basic categories. He found that the average score among all school buildings for 83.6% of the 251 components was greater than "3," or fair. Only 41 of the components had an average score of 3 or less.

Mr. O'Toole's second analysis attempted to ascertain a per square foot cost for the repairs indicated by BCAS. This study encompassed 921 of the approximately 1400 school structures surveyed in BCAS. Using the cost estimates included in the BCAS, Mr. O'Toole derived square foot costs for repairs in each of the 921 structures. The actual calculation of this per square foot cost, and the person who performed the calculation, were not described by Mr. O'Toole or by any of defendants' other witnesses. Apparently, the figure was arrived at by dividing a school building's square footage by BCAS cost estimates. While this calculation would appear to be a plausible method for deriving a per square foot repair cost, it did not receive the imprimatur of Mr. O'Toole or any other expert at trial. Relying on BCAS, Mr. O'Toole opined that per square foot costs of $100 or less indicated a building that was in "fair" condition. Eighty-nine percent of the buildings in his survey by this measure were in fair condition.

Mr. O'Toole concluded that these two analyses reinforce each other in supporting his ultimate conclusion that the vast majority of New York City public school buildings are in fair condition, requiring at most only preventive maintenance.

Mr. O'Toole's analyses are not persuasive.

Crucially, Mr. O'Toole's first analysis made no distinction among the 251 components measured. It made no attempt to weight each component's centrality to a school's functioning and does not attempt to account for BCAS' "purpose of action" and "urgency of action" ratings. It did not reveal which 41 components had an average less than three. An analysis based on the averages of components, standing alone, is of no probative value. Numerous schools have at least some components that score below the average. Depending on the components in question, a school with a handful of components below "fair" may have a severely compromised infrastructure. The crucial analysis, which was presented by plaintiffs, is what BCAS reveals about individual schools, not about individual components.

With respect to Mr. O'Toole's second analysis, plaintiffs point out that his cost per square foot exercise is based upon only 921 of the approximately 1400 structures included in BCAS. Mr. O'Toole testified that he collected these 921 structures by cross- referencing BOE and SED files regarding cost and square footage, respectively, and that the failure to match all the buildings in the BCAS survey was a function of the incongruence of the two files, not of any selection on his part. From this he concluded that his sample of school buildings was random. Plaintiffs offered no evidence to rebut this conclusion. Nonetheless, the incompleteness of Mr. O'Toole's survey does cast some doubt on his analysis. There was no testimony that gaps in discovery create a random sample. It is at least plausible that the lack of congruence between BOE and SED files may have been caused by some factor that was not random.

Another weakness of this analysis was that the actual calculation of the repair cost per square foot for each building was not set forth explicitly by defendants.

Finally, Mr. O'Toole's "cost per square foot" analysis was compromised by his reliance on cost estimates included in the BCAS, rather than on more accurate refinements to those cost estimates later generated by BOE for inclusion in its 2000-2004 five year plan.


d. Old Buildings and Changing Needs

In addition to the major structural deficiencies described above, New York City public school buildings contain antiquated science laboratories and wiring, heating, and air conditioning systems. In large measure this is a function of the buildings' age. Most City school buildings were built in an era when there was no need for computers, summer school, or more than rudimentary laboratory equipment. More than half of the buildings in the system are more than 58 years old.

Science labs are often obsolete or absent altogether in City public schools. According to BOE figures a minimum of 31 high schools lack a science lab of any description, leaving over 16,000 high school students without access to this crucial resource. In schools that do have labs, a single lab must be used for biology, chemistry and physics classes. Each subject area involves different equipment, and the near-constant use of labs in schools can restrict the complexity of experiments performed in the lab.

Inadequate wiring can impede a school's ability to offer computer education and other initiatives. Computers also require air conditioning to work properly during the warmer months.

The lack of air conditioning can also take its toll on teachers and students during the summer session recently inaugurated by BOE. Only 7344 out of approximately 35,000 classrooms in the system have air conditioning. In addition, there was credible evidence that existing air conditioning units often do not function properly.

The evidence demonstrates that New York City's public schools have a substantial backlog of interior repairs. New York City's schools are plagued by the disrepair of such basic amenities as lights, toilets, plaster and paint.

Finally, as discussed in subsection G below, overcrowding in the City's public schools is both a cause of facilities' deterioration and an impediment to remedial measures. Overcrowding has necessitated the use of important resources such as libraries, music and art rooms, and gymnasiums as classrooms. Overcrowding makes it difficult to conduct proper repairs without severe displacement of students.


 


Plaintiffs argue that there is no need to inquire into the causal link between inadequate school facilities and student outcomes, arguing that minimally adequate school facilities are an entitlement under the Court of Appeals' 1995 decision. This court disagrees. The Court of Appeals' 1995 decision states that the adequacy of school facilities is to be measured by whether they "permit children to learn." (86 NY2d at 317.) Accordingly, this court must examine the effect of poor physical conditions on students' ability to learn.

The State legislature, SED and BOE have all concluded that the City's decaying and decrepit school facilities impede learning but have not attempted to quantify the negative effect of crumbling school buildings on student performance.

Plaintiffs presented numerous SED and BOE witnesses who testified that the physical plant of a school can have a marked effect upon learning. In the case of absent or obsolete science labs the connection is obvious. Students cannot learn a subject without the requisite tools to do so. Similarly, computer science classes, and the use of computers to support other subjects, cannot happen in schools that have antiquated wiring. The evidence is conclusive that the numerous City school buildings with these deficiencies impede learning.

Plaintiffs also offered probative evidence that the totality of conditions in crumbling facilities can have a pernicious effect on student achievement. As former SED Commissioner Thomas Sobol testified:

 


The court finds that this evidence is credible as it is based on the experience and intuition of knowledgeable educators. However, this evidence does not attempt to gauge the magnitude of the effect of school facility condition upon student performance.

Unlike plaintiffs, defendants attempted to measure empirically the effect (or lack thereof) that school facilities have on student performance. Defendants offered statistical analyses performed by their expert, Dr. Hanushek, which purport to show no link between a school's disrepair and the test score performance of its students.

Dr. Hanushek first examined whether school building conditions, as measured by repair costs per square foot, in high and moderate poverty schools were related to student scores on standardized reading and math tests. This analysis tended to show that higher-performing students in elementary and middle schools are clustered in schools with high per square foot repair costs, i.e. those in worse condition. Dr. Hanushek thus concluded that facility repair needs do not cause performance differences among students. Dr. Hanushek further analyzed all New York City public elementary schools using, among other variables, per square foot repair costs and something called "facility scores" allegedly derived from the BCAS rating system. In these regression analyses Dr. Hanushek attempted to control for socio-economic deficits of a school's students by accounting for various factors in each of the schools including the median income of parents, the Limited English Proficiency rate for students, and rate of special education participation. He again reached the conclusion that facility disrepair is not causing negative student performance.

Dr. Hanushek's statistical analyses on this question are of limited probative value. First, the underlying data regarding per square foot repair costs and facility scores is questionable. Dr. Hanushek testified that he did not compile this data, and the court admitted these analyses subject to the establishment of a foundation by another witness. Defendants' attempts to do so were both convoluted and incomplete.

Defendants at least arguably established that the per square foot repair costs were calculated at the direction of Mr. O'Toole and then provided to Dr. Hanushek through defendants' counsel and another defense expert. However, no witness laid a foundation for the facility scores data. Accordingly, to the extent that they rely on facility scores Dr. Hanushek's regression analyses have no probative value. It appears that facility scores are compilations of BCAS scores (1-5) for building components, without any weighting assigned to the various components. Therefore, for the reasons discussed in subsections F(1)(c) & (d) above, even if the court were to consider them, facility scores would not adequately measure facility conditions.

The per square foot repair costs used by Dr. Hanushek, are compromised to an unknowable degree by Mr. O'Toole's use of cost estimates included in the BCAS, rather than on more accurate refinements to those cost estimates later generated by BOE for inclusion in its 2000-2004 five year plan. Less important, but still a source of doubt, is defendants' failure to set forth how they calculated per square foot costs. This calculation appears to have been a simple division of a building's square footage by its BCAS repair cost estimates, but defendants failed to establish the validity of this calculation.

Dr. Hanushek's regression analysis is hampered by its time frame, which encompassed a single school year. As stated above, education is a cumulative undertaking. A student's performance cannot be measured by the resources he was provided in a single year, but rather should be measured by the resources provided over a number of years. Accordingly, longitudinal studies of student performance over a period of years are more probative than one-year snapshots. Perhaps it could be argued that because Dr. Hanushek's analyses concerning school facilities encompassed the performance of all the students in a given school, it thereby provided a kind of compressed longitudinal study wherein the performance of students in different grades in a given school stands in for a study of a cohort of students as they progress through grades over multiple years. However, defendants did not make this argument and the court finds no support for it in the record.

For the reasons stated, the physical condition of New York City's schools has a negative effect upon the academic performance of the City's public school students. However, the magnitude of that effect is unclear from the evidence at trial.


G. Overcrowding and Class Size

The poor physical state of New York City public school facilities coupled with an influx of new students into the system in the late 1980s and the first half of the 1990s has resulted in severe overcrowding in many of its schools. Overcrowding, which exists at every level, is most severe in elementary and high schools. Overcrowding has a negative effect on student achievement.

Public school enrollment grew rapidly in the 1950s and `60s and peaked in 1971 at approximately 1,150,000 students. Between 1971 and 1982, enrollment shrank by approximately 220,000, though some districts did experience expansion during this period. New York City's fiscal crisis in the mid-1970s caused the City to shed a number of school buildings, decrease the money spent on maintaining school facilities, and slow the creation of new schools. Thus the City was ill-prepared when enrollment began to increase in 1983 and exploded in 1989. In the five years from October 1988 to October 1993, enrollment grew by close to 80,000 students and reached a total of 1,016,000 students. Rapid growth continued until 1996, when it slowed somewhat. Enrollment in the 1999-2000 school year was 1,102,000. The credible evidence at trial indicates that steady growth of the system will continue. While projections generated by the Grier Partnership, consultants to BOE, indicate that enrollment will level off and begin to drop in the middle of the current decade, recent data on birth rates and immigration that post-dates the Grier Partnership report cast doubt on its predictions. In any event, the evidence indicates that system capacity lags far behind existing enrollment.

BOE measures building utilization annually in its Enrollment Capacity Utilization ("ECU") report. The most recent ECU report in evidence was for the 1998-99 school year. The report describes the formulas by which BOE determines the capacity of each school. Because buildings are used differently based on level and type of schooling, BOE uses different formulas to determine the capacities of elementary schools, middle schools, high schools and citywide special education.