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End Notes for Classroom Bullies Article -July 12, 2005
  1. Judge DeGrasse's February 14, 2005 Order (the "2/14/05 Order") is included in a list of case-related documents available on CFE's website: http://www.cfequity.org/cfecompldocs.
  2. Based on $5.6 billion per year and $1.84 billion (i.e., 1/5 of $9.2 billion capital over 5 years) and 2004 sales tax revenues of $11.559 billion. http://www.tax.state.ny.us/pdf/stats/stat-fy/2003_04
  3. The Certificate of Incorporation of Campaign for Fiscal Equity, Inc. ("CFE") was approved for filing on March 3, 1993; and the original Complaint in the CFE litigation was filed in May, 1993. The sole incorporator of CFE is Michael A Rebell, the lead counsel for CFE in the litigation. The Certificate of Incorporation lists the presidents of three NYC community school boards as initial directors of CFE. CFE's website identifies 12 NYC community school boards among CFE's member organizations; and the President of the United Federation of Teachers as a member of CFE's Board of Advisors. For CFE members see: http://www.cfequity.org/ns-memb.html; for CFE Board members, see: http://www.cfequity.org/ns-board.html .
  4. City Journal Spring 2004, New York's Fiscal Equity Follies by Sol Stern: "DeGrasse and his wife, Carol Huff, also a judge, were both elected to the New York Supreme Court in 1988…. They were… handpicked by New York County Democratic Boss Herman (Denny) Farrell…. Thus, in a highly charged case that basically pitted the local political and education establishments against Republican governor George Pataki…, the presiding judge owed his appointment to a Democratic Party boss who keenly wanted to see more state education dollars coming to the city." http.//www.city-journal.org/html/14_2_nys_fiscal.html
  5. Idem.
  6. CFE's website lists 58 witnesses, none of whom is identified as a student in the NYC School District. Moreover, the list does not include any of the 23 students named as plaintiffs in the caption of the Amended Complaint in the case, dated June, 1993. http://www.cfequity.org/witnlst. None of the published CFE opinions mentions testimony of a single student. The State's Post Trial Brief dated February 6, 2001 (the State's Post Trial Brief"), states "[as] to the individually named plaintiffs, no evidence whatsoever was introduced to show that the schools or districts attended by them failed to provide the opportunity for a sound basic education. In fact, plaintiffs introduced no evidence identifying which, if any, NYC public schools they attended…. Plaintiff CFE presumably seeks to take advantage of the doctrine of organizational standing to bring this action…. CFE has failed to identify even one member who has the necessary standing to bring this action." Defendant's Post Trial Brief, pp. 89-90. Judge DeGrasse responded to the State's argument at pages 9-10 of his January 10, 2001 Opinion (the 1/10/01 DeGrasse Opinion) (http://www.cfequity.org/decision.html), noting that CFE never even "[mentioned] it (i.e., the issue of "standing") in their post-trial submissions." Judge DeGrasse does not dispute the state's point that no single student presented any evidence of having been denied a sound basic education. He argues, however, that "CFE is an organization comprised, inter alia, of school parent organizations"; and that "the children of these parents… have established an injury in fact…." The Judge does not identify which children of what parents established injury in fact; nor does he explain how those parents (whoever they are) established an injury in fact. Finally, the writer (Thomas C. O'Brien) submitted two Freedom of Information requests to SED and the Attorney General, respectively, requesting records and testimony of any students who were plaintiffs in the CFE case. SED responded on January 19, 2005, that it has no such records; and the Attorney General responded on March 15, 2005, that it has no transcripts of any testimony of any student plaintiff in the case.
  7. See CFE's list of witnesses. http://cfequity.org/witnlst.htms
  8. In response to a Freedom of Information request dated September 10, 2004, by the author to SED for any documents reflecting agreements between SED and CFE relating to testimony in the case, SED provided a copy of a Stipulation and Order dated March 10, 1994 signed by Michael Rebell of CFE and Kathy Ahearn of SED. Paragraph 1 of the Stipulation and Order dismisses Thomas Sobol, President of the university of the State of New York from the case. Paragraph 3 of the Stipulation and Order provides: "In connection with… all… matters related to this litigation, plaintiffs may communicate directly with counsel for the Commissioner."
  9. "New York's public schools had the second highest per-pupil spending in the nation as of 1982-83. By 2001-02, New York State was first in per-pupil spending." Also, "... by 2001-02, the city's per-pupil state aid of $5,270 had grown to roughly three percent above the $5,106 average for districts elsewhere...." Raymond Domanico, "No Strings Attached", Manhattan Institute, Civic Report No. 42, July 2004 ("Domanico"), end note 2 and accompanying text. http://www.manhattan-institute.org/html/cr_42.htm
  10. "The Chancellor of the City School District has stated that the City contributes approximately 20% of its revenues to education, whereas the percentage contributed to education by other localities in the State is almost twice as much…. Based upon this evidence, a court could justifiably conclude as a matter of law that the shortcomings in the City schools are caused by the City's failure to adequately fund City schools, not from any default by the State in its constitutional duty. Campaign for Fiscal Equity vs. State of New York, et al., 86 NY 2d 307 (1995) (referred to hereinafter as "CFE-1"), unofficial edition (http://www.law.cornell.edu/ny/ctop/086_0307.htm), Justice Simons dissenting at page 17. See also Campaign For Fiscal Equity, Inc. versus State of New York, et al. 100 NY 2d 893 (2003) ("CFE-2"), unofficial edition (http://www.cfequity.org/cfecompldocs.htm), Read dissenting at p. 13: "As the State's contributions have increased, the City has not kept pace. As a result, from fiscal year 1994-95 to fiscal year 1999-00, the State's share of the City's combined State and local education funding increased from 47 percent to 51 percent. (Approximately 10 percent of the City's education budget consists of federal funds.) Concomitantly, the City's share decreased from 53 percent in 1995-1996 to 49 percent in 1999-2000."
  11. "… the State marshals evidence that when the State injects funds pursuant to formulas intended to compensate for inequalities in local school funding, the City deducts proportionately from its own contributions, leaving the school budget unimproved. The trial court found evidence to support this assertion…." CFE-2 at pages 39-40. See also Read's Dissent at page 13, quoted in the preceding end note.
  12. See 1/10/01 DeGrasse Opinion, page 52. http://www.cfequity.org/decision.html
  13. "… evidence introduced at trial… suggests that both BOE and the City have contributed to the schools' current crisis." 1/10/01 DeGrasse Opinion, p. 47. "The evidence demonstrates that decentralization of the governance of the New York City School District led to inefficiency, mediocrity and corruption in some of the City's community school districts… In many of the City school districts, community school board members were more concerned with their own political advancement (and in some cases, with their enrichment) than they were with education…. Defendants are correct that BOE's methods for evaluating teachers and improving their performance are currently ineffective." Id. at 52-53.
  14. Id. at p. 31.
  15. Judge DeGrasse stated: "The most serious evidence of BOE's inefficient spending concerns special education…. BOE spends over $2.5 billion annually, more than 25% of its total budget, on special education."  1/10/ 01 DeGrasse Opinion, page 54. http://www.cfequity.org/decision.html
  16. "Defendants correctly point out that the City, despite a higher proportion of at risk students, spends substantially less on education than other localities around the State. However,… it is the legislature's duty in the first instance to reform how education is financed…."  1/10 01 DeGrasse Opinion at p. 56. Also, "[the} failings of community school boards cannot be blamed on BOE…. To the extent that defendants allege that corruption and waste by community school boards had a negative effect on student outcomes, the blame must be with the State for perpetuating a form of school governance that generated corruption and waste. 1/10/01 DeGrasse Opinion, p. 53.
  17. 1/10 01 DeGrasse Opinion, at p. 52.
  18. The 2/14/05 DeGrasse Order implements directives in the Court of Appeal's June, 2003 Opinion to require the state to ensure that every NYC school "would have the resources necessary for providing the opportunity for a sound basic education" and to "ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education." The Court of Appeals did not require any corrections to NYC's dysfunctional systems; and Judge DeGrasse did not order them. CFE-2 provides: "Once the necessary funding level is determined, the question will be whether the inputs and outputs improve to a constitutionally acceptable level. Other questions about the process—such as how open it is and how the burden is distributed between the State and the City—are matters for the Legislature desiring to enact good laws….Reforms to the current system of financing school funding and managing schools should address the shortcomings of the current system by ensuring, as a part of that process, that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education." CFE-2, pages 50-51.
  19. Campaign For Fiscal Equity, Inc. vs. State of New York, 86 N.Y.2d 307,631 N.Y.S.2d 565 (1995) http://www.law.cornell.edu/ny/ctap/086_0307.htm
  20. Levittown vs. Nyquist, 57 N.Y. 2d 27, 453 N.Y.S.2d 643 (1982) ("Levittown").
  21. Id., p. 48.
  22. Idem.
  23. Id., p. 49.
  24. See note 9, above.
  25. Levittown, at p. 45.
  26. Id., p. 38.
  27. Id., at p. 50.
  28. CFE-1, at p. 3. In a concurring opinion to the CFE-1 decision, Justice Levine stated: "The Court also indisputably had before it the claim, supported by findings of fact and conclusions of law by the lower courts, that… the school children in the plaintiff and intervener school districts in that case were not receiving the educational opportunities guaranteed by the Education Article." CFE-1, Levine, J., concurring at p. 8. Judge Simons, dissenting in the same opinion, stated: "In sum, we fully interpreted the Education Article, concluding that the State had met its constitutional obligation…. But this Court in Levittown clearly stated that judicial review of the State funding scheme would only be warranted if it appeared there had been a "gross and glaring inadequacy" in State funding…. In holding that plaintiffs here have stated a cause of action, the majority simply ignores this limitation on our powers." Id. at pages 15-16.
  29. CFE-2 at p. 11.
  30. Paynter vs. State of New York, 100 N.Y. 2d 434, 765 N.Y.s. 2d 819 (2003)
  31. Id., at p.441.
  32. N.Y. Constitution, Article XI, Section 1.
  33. Levittown, at pages 12-13: "Outside the cities in the State (in which school funding is a part of the total municipal process), funds for the support of the education program offered in the schools of a district are raised through the imposition of local taxes following voter authorization based on approval of a budget prepared and submitted by an elected board of education, reflecting the instructional program… perceived by the local board of education to be responsive to the needs and desires of the community…. Throughout the State, voters, by their action on school budgets, exercise a substantial control over the educational opportunities made available in their districts; … there is a direct correlation between the system of local school financing and implementation of the desires of the taxpayer." In New York City and four other large city school districts, local control of the schools is exercised by the city governments; but it is no less local control for that reason. Dissenting from the Court's opinion in CFE-2, Justice Read stated: "Our remedy also signals the demise of local control, a key component of the constitutionalization of New York's public school system. Long before the Education Article's adoption in 1894, New Yorkers were free to require their local schools to provide more than a minimal education. …[By]…making the State solely responsible… we have severely undercut local control. We have centralized responsibility for educational competence… in the courts…." CFE-2, Read dissenting at page 19.
  34. See, for example, New York City vs. State of New York, 86 N.Y.2d 286, 631 N.Y.s.2d 553 (1995), and Society of Plastics Indus. Vs. County of Suffolk, 77 N.Y.2d 761 (1991).
  35. CFE-2, at pp. 37-38.
  36. Id., at p. 32.
  37. Id., at p. 34.
  38. Warth vs. Seldin, 422 U.S. 490, 95 S.Ct. 2197 (1975). "We hold… that a plaintiff who seeks to challenge… [state] practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention." Id., at pl 508. In dissent, Justice Brennan sharpens the point: "…the Court says that the low-income minority plaintiffs have not alleged facts sufficient to show that but for the exclusionary practices claimed, they would be able to reside in Penfield." (emphasis added) Id., at 521.
  39. CFE-2 at p. 50.
  40. Defendants' Memorandum in Opposition to Plaintiffs' Motion to Vacate Automatic Stay, dated April 27, 2005 in CFE-2, pages 16-19, citing information derived from State Education Department website: (http://www.oms.nysed.gov/faru). The Memorandum is available on CFE's website at http://www.cfequity.org/cfecompldocs.htm
  41. CFE-2 at p. 45.
  42. "New York City… at best was stagnant in all measures, and arguably saw declines…." Dominico, page 9.
  43. New York State Senator George Winner made the quoted statement in a public hearing at the Corning City Council Chambers on February 10, 2005 in response to a question by the author as to whether he would support the Court of Appeals ruling in CFE-2. On December 2, 2004, the Elmira Star-Gazette quoted then Assemblyman Winner on the CFE ruling as follows: "It's fantasy. It's a bunch of liberals run amok in New York City." State Senator Tom Libous, R- Binghamton, was also quoted in the article: "I'm very disturbed. Why should Broome County, Tioga County, Chenango County contribute when the City of New York isn't going to contribute anything to it. The mayor tells us he doesn't have any money. Well, neither do we."
  44. The Gotham Gazette, in an article by Gail Robinson dated May, 2005, reported: "…Bloomberg has argued, any increase at all in city education spending would require cuts in other areas that ‘would harm the very children the lawsuit is designed to help.' Michael Cardozo, the Bloomberg administration's corporation counsel, has even said that the city would reject any additional state funds if it had to chip in part of the settlement." http://www.gothamgazette.com/article/education/20050520/6/1423
  45. See Erika Rosenberg, "Small Cities to Sue Over School Funding", Elmira Star-Gazette, March 16, 2005 (www.stargazette.com). See also Eric D. Randall, "Statewide ‘son of CFE' Lawsuit Still Possible", On Board, Volume 5, No. 17, October 11, 2004. www.nyssba.org
  46. Elmira Star-Gazette, Opinion, February 2, 2004. www.stargazette.com
  47. NYSASCSD Newsletter, November, 2004, Vol. XVIII, No. 9. NYSASCSD Website: scsd.neric.org
  48. The U.S. Supreme Court summarized the concern as follows: "To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.' "Schlesinger vs. Reservists to Stop the War, 418 U.S. 208 (1973) at p. 222.
 

 

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