MOL IN OPPOSITION

Plaintiffs submit this Memorandum of Law in opposition to Defendant’s motion to dismiss the Complaint. Defendant’s motion papers mischaracterize Plaintiffs’ Complaint, and do not accurately set forth or apply the legal standards governing capacity to sue and the definition of what constitutes as “sound basic education” under the New York State Constitution.

To summarize what is thoroughly briefed below, Defendant’s “lack of capacity” argument (i.e., Point I in Defendant’s Memorandum of Law) fails as a matter of law and fact. More particularly, inasmuch as the Plaintiff members of the various school districts’ boards of education clearly assert that the State’s education funding system causes the Plaintiffs’ Districts to violate the Education Article of the New York Constitution, capacity to sue the State of New York as citizen-taxpayers is most certainly present. With respect to the Plaintiff New York State Association of Small City School Districts, capacity to sue the State is a statutory grant under the Not-For-Profit Corporation Law. Furthermore, any defect alleged by Defendant with regard to Plaintiffs’ capacity to sue, if valid, is addressed and corrected by Plaintiffs’ Amended Complaint served and filed hereafter.

Defendant’s “disparate treatment” argument (i.e., Point II in Defendant’s Memorandum of Law) is patently deficient because it is based on a mischaracterization of Plaintiffs’ claims. Specifically, the “crux” of Plaintiffs’ Complaint is not that the existence of disparities[1] in education funding gives rise to an Education Article claim - - as claimed by Defendant into its Memorandum of Law. Instead, the gravamen of Plaintiffs’ Complaint is that a review of the educational resources provided to children attending the Plaintiffs’ districts (i.e., inputs such as teaching, facilities and instrumentalities of learning) shows that those resources are grossly inadequate to the task of providing all of the children in those districts with a meaningful opportunity at succeeding in school, i.e., a sound basic education, and that the insufficient “inputs” have lead to deficient “outputs” such as drop out rates, test results and graduation rates. This failure is the direct result of the educational funding system maintained by the State, a system which permits the Plaintiffs’ Districts, which are poorer than the average school district and significantly poorer than non-city districts, to spend much less per pupil than non-city districts while taxing their local property tax payers at extremely high rates.

Furthermore, recent cases have made clear that districts such as Plaintiffs’ Districts with high numbers of at risk children need to spend more than the average district in order to compensate for their students’ educational and socio-economic deficits (see e.g. Campaign for Fiscal Equity et al. v. State of N.Y. et al. 187 Misc. 2d 1, 40-41, 58-59, 63, 76, 114-115 (C Ct. NY Co. 2001), and Campaign for Fiscal Equity et al. v. State of N.Y. et al. 100 N.Y. 2d 893, 915 (2003)). Plaintiffs’ Districts, however, are already taxing at unsustainably high rates and the only possible solution to their dilemma is to receive substantial increases in state aid. Therefore, Plaintiffs’ complaint raises the issue of gross disparities in local tax rates between themselves and non-city districts not to show the unfairness of the State’s education funding system, but rather to demonstrate that Plaintiffs’ Districts have done all within their power to provide a sound basic education and that the cause of the present failure to provide a sound basic education is the State’s inadequate funding.

Defendant’s “specificity” argument (i.e., Point III in Defendant’s Memorandum of Law) is simply without merit because Plaintiffs’ Complaint clearly alleges and specifies gross educational inadequacies that, if proven, could support a conclusion that the State’s public school financing system effectively fails to provide a minimally adequate educational opportunity, and that the Legislature’s education financing system is the cause of such deficiencies. Simply put, Defendant’s objection that Plaintiffs have presented this data in a collective and combined format and that as such this presentation fails to state a cause of action is unsupported by the case law. Once again, to the extent that any defect in pleading is deemed valid by the Court, Defendant’s motion is rendered moot by the filing and serving of the Plaintiffs’ Amended Complaint.

Finally, and perhaps most significantly, contemporaneous with the service of this Memorandum of Law and the Plaintiffs’ other opposition papers, plaintiffs have filed and served an Amended Complaint for Declaratory and Injunctive Relief. It is respectfully submitted that the “amendments” set forth in this new pleading render Defendant’s entire motion to dismiss moot as a matter of law and fact.

STATEMENT OF FACTS

This suit challenges the constitutionality, in whole or in part, of the system of education funding provided by Defendants to the: Albany City School District, Beacon City School District, Binghamton City School District , Cohoes City School District, Corning City School District, Dunkirk City School District , Glens Falls City School District, Jamestown City School District Kingston City School District, Middletown City School District, Mt. Vernon City School District, Newburgh City School District, Niagara Falls City School District, North Tonawanda City School District, Poughkeepsie City School District Salamanca City School District, Schenectady City School District and Tonawanda City School District, (collectively referred to as "Plaintiffs’ Districts"). (Amended Complaint ¶ 1)

In 1995 and 2003 the New York State Court of Appeals issued two decisions in Campaign for Fiscal Equity et al. v. New York State et al. (CFE I [86 N.Y.2d 307] and CFE II [100 N.Y.2d 893], respectively) setting forth a definition of what constitutes the sound basic education required under New York State Constitution Article XI, section 1. The Court established a basis on which the educational funding system as it relates to all public school districts in the state must be measured. The Court required a review of educational inputs and outputs to determine whether or not the system provided an opportunity for all children to obtain a meaningful high school education. It then placed the responsibility of maintaining a funding system to provide that opportunity squarely on the State’s shoulders. (Amended Complaint ¶ 2)

A review of the educational resources (“inputs”) provided to children attending Plaintiffs’ Districts shows that those resources are grossly inadequate to the task of providing all of the children in those Districts with a meaningful opportunity at succeeding in school and obtaining a meaningful high school education, i.e. the opportunity to receive a sound basic education. Educational inputs necessary for a sound basic education include sufficient numbers of qualified, experienced teachers, well maintained facilities of adequate size and function and instrumentalities of learning, up to date and sufficient in amount and quality to support essential programs, among other things. This gross inadequacy in inputs, or “opportunity gap,” is the direct result of the educational funding system maintained by the State, a system which permits the Plaintiffs’ Districts, which are poorer than the average school district and significantly poorer than non-city districts, to spend much less per pupil than non-city districts while taxing their local property tax payers at extremely high rates. (Amended Complaint ¶ 3)

A review of the educational performance (“outputs”) of students attending Plaintiffs’ Districts including but not limited to graduation rates, dropout rates, rates of those entering college and results on the 4^th and 8^th grade English and Math tests and on the Regents tests now required for high school graduation among other indicators shows results which are below the results of the average district state wide and which are far below the results of non-city districts. Moreover, the results of the Plaintiffs’ Districts for children in certain sub-groups such as the economically disadvantaged, children with disabilities and ethnic/racial minorities are abysmally low and as such are comparable to results of children in other poor districts throughout the State including New York City. These chronically poor results which demonstrate the failure to obtain a sound basic education are the direct consequence of the failure of the State to provide educational funding for Plaintiffs’ Districts which meets the constitutional parameters set by the Court of Appeals. (Amended Complaint ¶ 4)

ARGUMENT

CAPACITY TO SUE DEFENDANT IS

In its Memorandum of Law, although Defendant correctly states the general rule with regard to capacity to sue (i.e., that neither school districts nor their board members in their official capacities may sue the State of New York), Defendant confuses the concepts of capacity to sue and standing to sue and misapplies the cases with regard to Plaintiff school board members suing in their capacities as individual citizens and with regard to Plaintiff New York State Association of Small City School Districts.

Although courts often use the terms interchangeably, the concepts of capacity to sue and standing are distinct (see, [*297] Community Bd. 7 v Schaffer, 84 NY2d 148, 155). Capacity to sue "concerns a litigant's power to appear and bring its grievance before the court" ( id., at 155). Standing is "designed to ensure that the party seeking relief has a sufficiently cognizable stake in the outcome" so as to cast the controversy " ' "in a form traditionally capable of judicial resolution" ' " ( id., at 154-155 [quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772]). "Capacity, or the lack thereof, sometimes depends purely upon a litigant's status" ( Community Bd. 7, supra, at 155). For instance, an infant or an individual adjudicated incompetent may be disqualified from seeking relief in court (id.).

The question of capacity to sue often arises when governmental entities, which are creatures of statute, attempt to sue. In that context, the right to sue, "if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate" ( id., at 156 [citing Matter of Pooler v Public Serv. Commn., 58 AD2d 940, affd on mem below 43 NY2d 750; Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537]). (City of State of New York v. State of New York 86 NY2d 286, 296-297 (1995)).

It is black letter law that where a party has a cognizable stake in the outcome of a case that party has standing to sue. Here, Plaintiffs assert in their Complaint (and will prove at trial) that compliance with the State’s education aid system forces Plaintiffs’ Districts to violate the Education Article of the New York State Constitution by being unable to provide all of their students with the opportunity for a sound basic education. (Amended Complaint, ¶1-4).

25. The New York State Constitution, in the Education Article of Article XI, Section 1, requires that the State “legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”

26. The New York State Court of Appeals has interpreted the Education Article of the New York Constitution, in CFE I, as imposing a duty on the State of New York to provide “all children the opportunity of a sound basic education” (Hereinafter “SBE”) (at 315).

27. The Court of Appeals has further defined the constitutional minimum SBE as the provision of a “meaningful high school education” which prepares students for civic participation in society, as voters, jurors, and employees, for example [CFE II, at 905].

28. New York State, through its education aid allocation scheme, has violated this Constitutional mandate and has failed to provide the opportunity of a SBE to students of the Albany City School District, Beacon City School District, Binghamton City School District, Cohoes City School District, Corning City School District, Dunkirk City School District, Glens Falls City School District, Jamestown City School District, Kingston City School District, Mt. Vernon City School District, Newburgh City School District, Niagara Falls City School District, North Tonawanda City School District, Salamanca City School District, Schenectady City School District and Tonawanda City School District. The combined effect of inadequate local wealth, high tax rates and voter imposed budget caps effectively precludes Plaintiffs’ Districts localities from compensating for the shortages created by the State’s defective aid system.

29. As a result of the State’s education funding system, students attending Plaintiffs’ Districts are denied a SBE as measured by the several “inputs” outlined in the Court of Appeals 2003 decision in CFE II (at 909-914):

And finally, it stands without further argument that Plaintiffs’ capacity to sue is unassailable by virtue of Plaintiffs’ filing and service of an Amended Complaint for Declaratory and Injunctive Relief. (Biggerstaff Aff., ¶ 9, Exhibit “A”). The Complaint has been amended, so that each individual school board member has been named and it has been made clearer that the school board members are suing as citizens -- taxpayers pursuant to State Finance Law §123(b). The Governor of the State of New York and the Commissioner of the Department of Taxation and Finance of the State of New York have also been added as Defendants, and Plaintiffs clearly seek “declaratory and injunctive relief” against these new Defendants, both of whom it is alleged are causing an “unconstitutional disbursement of state funds.” State Finance Law §123(b). Specifically, the Amended Complaint provides:

7. Plaintiffs, members of the boards of education of the Albany City School District, Beacon City School District, Edward Brown, Susan Kushner, William Barnette, Patricia Fahy, Teneka Frost, Barbara Gaffuri, of the Beacon City School District, Deborah Sheers, William Zopf, Alyson Chugerman, Cynthia Griffin, Carla Pettorossi, Donna Pineiro, Michael Riehl, Mark Seegler, Mary-Beth Stephens, of the Binghamton City School District, Brian Whalen, Joan Purtell, Sandra Haining, Maura Kammerman, David Hawley, Michael O’Connell, Erica Dooley, of the Cohoes City School District, Christopher Briggs, Jeff Bradt, Patrick Butler, Anne Marie Hume, Walter Kolakowski, Steven Lackmann, V. Mark Pascale, Corning City School District, William E. Carlson, Judith Dwyer, Rebecca W. Baker, Neil F. Bulkley, Kim L. Clark, Patrick H. Flynn, Nancy McLaughlin, Mark D. Vaughn, Dale R. Wexell, of the Dunkirk City School District, Nancy Renckens, Rose M. Flormo, Kenneth Kozlowski, Thomas Boris, Ronald Hall, Tommy Roque, Gregory Sek, of the Glens Falls City School District, Jane R. Reid, Anne B. Herlihy, todd R. Feigenbaum, Jeffrey S. Gohn, Kristine Hatch, Sandra Hutchinson, Barbara G. Drogmann, William P. Mason, Devin R. Spencer, of the Jamestown City School District, Joseph Pawelski, Timothy Thomas, Joseph DiMaio, Laurel Lucas, Deann Nelson, Thomas Pope, Christine Schnars, of the Kingston City School District, Daniel Gartenstein, Christopher Farrell, Maureen bowers, A.L. Coston, Sr., David Fletcher Kathy Germain, Ian Horowitz, Clayton Vankleeck, Marc Tack, Gerard M. Gretzinger, Camile Ellsworth, of the Middletown City School District, Vincent Crescenzo, Susan Botti, William A. Best, Edwin Estrada, William Geiger, Linda Knapp, Lynne Perkins, John A. Perrino, Rose Tobiassen, of the Mt. Vernon City School District, Donna Scott, Kathy Sherman, Margie Bennett, Samuel R. Laudeman, Jr., Charles Waugh, of the Newburgh City School District, Runston T. Lewis, Ralph A. Pizzo, Grace Bowles, Thomas J. Fitzgerald, Dawn Fucheck, Edward Poppiti, David J. Rein, Pamela r. Resch, Thomas C. Woodhull, of the Niagara Falls City School District, Russell Petrozzi, Robert Kazeangin, Jr., Christopher Brown, Kevin Dobbs, Don J. King, Carmelette Rotella, Jeanette Stypa, Nicholas Vilardo, Mark Zito, of the North Tonawanda City School District, Arthur Pappas, Scott Schultz, Robert Arbeiter, Nancy Donovan, Michael Harms, Dennis Pasiak, Deborah Wasieczko, of the Poughkeepsie City School District, Stanley F. Merritt, Carol A. Bogle, Gregory S. Charter, Thomas L. Jefferson, Ellen W. Staino, of the Salamanca City School District, Thomas Hart, Canace Welch, Ralph Riggs, of the Schenectady City School District Jeff Janiszewski, Warren R. Snyder, Linda Bellick, James Casino, John Mitchell, Chauncey Williams, Lisa Russo and of the Tonawanda City School District, Gary Waterhouse, Daniel Calabrese, Richard Catlin, Joyce Hogenkamp, Thomas Balk, Mark Flint, James Weber, maintain suit against Defendants in their official, individual and citizen taxpayer capacities.

12. Defendant the State of New York (“State”) allocates financial aid to localities for education pursuant to the provisions of Education Law and through an annual appropriation for state aid to localities. The State receives billions of dollars annually in federal financial aid for such components of the education system as compensatory education for educationally deprived children in low-income areas, school lunches, aid to disabled children, and vocational education.

13. Defendant State of New York (hereinafter "Defendant" or “State”) is responsible for the operation, financing and administration of the New York State public school system.

14. George E. Pataki is the Governor of the State of New York and is sued in his official capacity.

15. Andrew S. Eristoff is the Commissioner of the Department of Taxation and Finance of the State of New York and is sued in his official capacity.

Plaintiffs have also amended their Complaint to include parents of children attending certain Plaintiff Districts. More particularly,

11. Ayube Hussein sues on her own behalf as citizen-taxpayer and on behalf of her minor child, Jabin Hussein, a student who attends Albany City School District. Jeffery F. Horne, sues on his own behalf as citizen-taxpayer and on behalf of his minor child, Nicholas L. Horne, a student who attends Albany City School District. Mary Francis Maisto, sues on her own behalf as citizen-taxpayer and on behalf of her minor child, Steven Maisto, a student who attends Jamestown City School District. Elizabeth Stocum, sues on her own behalf as citzen-taxpayer and on behalf of her minor children, Katelyn Elizabeth Stocum, and James Robert Stocum, students who attends Jamestown City School District. Mark Panebianco and Jennifer Panebianco, sue on their own behalf as citizens-taxpayers and on behalf of their minor child, Zachary Panebianco, a student who attends Jamestown City School District. Tom Pope and Tamsin Pope, sue on their own behalf as citizens-taxpayers and on behalf of their minor children, Brandon Pope, Christopher Pope, and Marisa Pope, students who attends Jamestown City School District. Grace Johnson and Gregory Johnson, sue on their own behalf as citizens-taxpayers and on behalf of their minor child, Abigail Johnson, a student who attends Jamestown City School District. Maria Peterson and David Peterson, sue on their own behalf as citizens-taxpayers and on behalf of their minor child, Lindsey Peterson, a student who attends Jamestown City School District. Lori Cobb and Lou Cobb, sue on their own behalf as citizens-taxpayers and on behalf of their minor child, Fletcher Cobb-Sek, a student who attends Jamestown City School District. Edward Poppiti, sues on his own behalf as citizen-taxpayer and on behalf of his minor child, Ed Poppiti, a student who attends Newburgh City School District. Dawn Fucheck, sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Ryan Fucheck, Alexi Fucheck, Brett Fucheck, students who attend Newburgh City School District. Pamela R. Resch sues on her own behalf as citizen-taxpayer and on behalf of her minor children Darri T. Resch and Collin N. Resch, students who attend Newburgh City School District. Robin Johnson sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Jamie Johnson, Samantha Johnson, Lindsay Johnson, students who attend Newburgh City School District. Alyson Cheyerma sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Haylee Cheyerma and Aubrey Cheyerma, students who attend Newburgh City School District. William P. Zopf sues on his own behalf as citizen-taxpayer and on behalf of his minor children, Jacqueline Zopf, Rebecca Zopf, and William Zopf, students who attend Newburgh City School District. Larry D. Cohen sues on his own behalf as citizen-taxpayer and on behalf of his minor children, Sarah Rebecca Cohen and Mary Melissa Cohen, students who attend Newburgh City School District. Donna Pineiro sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Noel Pineiro and Liam Pineiro, students who attend Beacon City School District. Cynthia Griffin sues on her own behalf as citizen-taxpayer and on behalf of her minor child, Jamir Griffin, a student who attends Beacon City School District. Julie K. Rodriquez sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Dominick Rodriguez and Nichole Rodriguez, students who attend Jamestown City School District. Barbara Rachell sues on her own behalf as citizen-taxpayer and on behalf of her minor child, Bradley Rachell, a student who attends Newburgh City School District. Almetra Murdock sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Angel Murdock and Ariel Murdock, students who attend Newburgh City School District., Sharon Currie sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Vaneisha Currie, Lamar Currie, Anton Currie and Jaekwon Myers, students who attend Newburgh City School District. Leona M. Free sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Tamara Gezman and Omani Free, students who attend Newburgh City School District. Zsa Zsa Holmes sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Maruice Walter Holmes, Rayshoon Holmes, Kristla Holmes, Donta Holmes and Jzamaine Morris, students who attend Newburgh City School District. Tanisha Jackson sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Ivan Jackson, Anaya Jackson and Jaylen Jackson, students who attend Newburgh City School District. Tonia Parker sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Beverly Parker, Bevon Webley, and Tantaneyas Owens, students who attend Newburgh City School District. Elizabeth Robinson sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Stardaysha Robinson, Obie Robinson and Nigel Zachary Robinson, students who attend Newburgh City School District. Nellie Stewart sues on her own behalf as citizen-taxpayer and on behalf of her minor children, Tryon Stewart, Daawada Stewart and Dayton Stewart, students who attend Newburgh City School District.

Consequently, all Plaintiffs as individuals possess capacity and standing to sue both under the original and Amended Complaints for Declaratory and Injunctive Relief (CFE I and CFE II supra).

POINT II

PLAINTIFFS’ EDUCATION ARTICLE

Plaintiffs’ Education Article claims are the identical claims advanced and upheld under Campaign for Fiscal Equity, Inc. v. State of New York, 86 NY2d 307 (1995) and, Campaign for Fiscal Equity, Inc. v. State of New York, 100 NY2d 893 (2003). More particularly, Plaintiffs’ allege at paragraphs 28-30 and 39-49 of their Complaint as follows:

29. As a result of the State’s education funding system, students attending Plaintiffs’ Districts are denied a SBE as measured by the several “inputs outlined in the Court of Appeals 2003 decision in CFE II (at 909-914):

a. The quality of teaching at the Plaintiffs’ Districts lags behind the State average, and far behind non-city districts, as reflected in the percentage of teachers instructing in a subject of which they are not certified, the percentage of teachers with fewer than three years of teaching experience, the failure rates on the State teacher certification examinations, the ranking of colleges or universities attended and the teachers’ class standings at those institutions, and the professional development opportunities available. Salary differentials and poor working conditions in Plaintiffs’ Districts also indicate that these districts are unable to attack sufficient numbers of quality teachers.

b. School facilities and classrooms are inadequate in Plaintiffs Districts. Overcrowding is shown through encroachment of ordinary classroom activities into spaces designed for specialized activities, such as science labs or cafeterias. Class sizes are excessive and exceed the State average and significantly exceed the average in non-city districts. Additionally, school buildings in Plaintiffs’ Districts are older and are in greater disrepair than is true in non-city districts.

c. The instrumentalties of learning are also deficient in Plaintiffs’ Districts. These districts have fewer library books and computers per student than non-city districts in the State. Furthermore, those computers that are available to students are older and incompatible with current software programs. Deficiencies exist in basic classroom supplies as well.

a. The high school completion rates in four years or by age twenty-one for Plaintiffs’ Districts are lower than rates in other districts in the State and far lower than in non-city districts. These disheartening statistics are also reflected in suspension and dropout rates, percentages of general equivalency and non-Regents’ diplomas attained, and percentages of graduates attending four year colleges or universities.

b. Test results in the 4^th and 8^th grade Math and ELA exams and in Regents Exams are lower than in other districts in the State and far lower than in non-city districts. Moreover, test results of certain student subgroups in Plaintiffs’ Districts such as economically disadvantaged, children with disabilities and ethnic and racial minorities are far lower than the state average and as low, and in some cases lower, than in New York City. Also these results show a pervasive and systematic link between the degree of student poverty and high failure rates among proof and minority students. Test results can also be linked to funding shortages resulting from deficiencies in the aid formula.

39. The Court of Appeals, in its 1995 decision, required that plaintiffs asserting a violation of the Education Article show a casual link between any proven failure to provide a SBE and the State funding system (CFE I at 317-318).

40. In its 2001 decision, the Supreme Court outlined an interpretation of this requirement, which was later approved by the Court of Appeals, that plaintiffs need only show that the funding system is a substantial cause of the educational deficit, not the sole cause (CFE Trial at 92, CFE II at 920).

41. Considering the foregoing, the States’ education aid system is a substantial cause of the constitutional violation of the Education Article in Plaintiffs’ Districts. As the Supreme Court found in regard to New York City (CFE Trial at ___), the State aid formulas have also long failed to align funding with need in Plaintiffs’ Districts.

42. The glaring misalignment between funding and need led to inadequate education “inputs” which in turn have let to unsatisfactory student performance. As such, the State’s education aid system is a substantial cause of the violation of the rights of students in Plaintiffs’ Districts to the opportunity for a SBE.

Moreover, the Complaint has been amended to include the following additional allegations:

34. The weaknesses and failings in educational inputs at the schools in Plaintiffs’ Districts are manifested by the following:

a. Class sizes are too high to permit the needed interaction and dialogue between students and teachers, and class sizes in many schools are in excess of 30 students per class;

b. There are insufficient numbers of qualified and experienced teachers and in many schools there are more than 25% of teachers without masters degrees and more than 25% with under three years of experience and, in some schools, more than 11% uncertified teachers, more than 50% without masters degrees and more than 50% with fewer than three years experience;

c. In many schools in Plaintiffs’ Districts there are insufficient numbers of teachers to provide the necessary extra help and instruction on a remedial basis or otherwise, during or after the regular school day;

d. In many schools in Plaintiffs’ Districts there are insufficient numbers of up to date text books and library books and many libraries have books, on average, over 50 years old;

e. In many schools in Plaintiffs’ Districts there are insufficient numbers of science laboratories and attendant equipage;

f. Many school buildings in Plaintiffs’ Districts are aged more than 100 years old in some cases, and have badly deteriorating and insufficiently maintained classrooms, gymnasiums, cafeterias, auditoriums, administrative spaces and common areas;

g. Many schools in Plaintiffs’ Districts have insufficient numbers of and access to sports programs, art programs, music programs and other extra-curricular activities and

h. In Plaintiffs’ Districts which fail to obtain voter approval of their school budgets and operate under one, or successive, austerity budgets, conditions described in subparagraphs a through g above continue to worsen through firing of teaching staff, reductions in programming and inability to replace as needed or maintain the educational infrastructures.

i. The result of the weaknesses and failings in educational inputs is that thousands of students in Plaintiffs’ Districts attend school in overcrowded classes, are taught by unqualified and inexperienced teachers and are not provided with the facilities and equipment necessary to a SBE.

j. Further, these weaknesses and filings in inputs result in the failure to provide Plaintiffs’ Districts’ at risk children the greater time on task and expanded programs necessary to provide them a SBE.

35. An examination of the “outputs” enumerated by the Court of Appeals CFE II (at 914-919) underscores the State’s denial of the opportunity for a SBE in Plaintiffs’ Districts:

a. The high school completion rates in four years or by age twenty-one for Plaintiffs’ Districts are lower than rates in other districts in the State and far lower than in non-city districts. These disheartening statistics are also reflected in much higher suspension and dropout rates, percentages of general equivalency and non-Regents' diplomas attained, and lower percentages of graduates attending four-year colleges or universities.

b. Test results in the 4^th and 8^th grade Math and ELA exams and in Regents Exams are lower than in other districts in the State and far lower than in non-city districts. Moreover, tests results and numbers participating in testing on Regents Exams of certain student subgroups in Plaintiffs’ Districts such as economically disadvantaged, children with disabilities and ethnic and racial minorities are far lower than the state average and as low, and in some cases lower, than in New York City. Also, these results show a pervasive and systematic link between the degree of student poverty and high failure rates among poor and minority students. These test results are attributable to funding shortages resulting from deficiencies in the aid formula.

36. The shortcomings in educational outputs of the schools in Plaintiffs’ Districts are manifested by the following:

a. More than 50% of 4^th grade students tested in English Language Arts (ELA) score in the first two (of four) levels, demonstrating unsatisfactory performance;

b. More than 35% of the 4^th grade students tested in Mathematics (Math) score in the first two levels, demonstrating unsatisfactory performance;

c. More than 75% of 8^th grade students tested in ELA score in the first two levels, demonstrating unsatisfactory performance;

d. More than 75% of the 8^th grade students tested in Math score in the first two levels, demonstrating unsatisfactory performance;

e. More than 55% of students at the elementary school level, 75% at the middle school level and 25% at the high school level require remedial programs for ELA;

f. More than 35% of students at the elementary school level, 75% at the middle school level and 65% at the high school level require remedial programs for Math;

g. The drop out rates are between two to three times the drop out rates in the surrounding suburban districts;

h. The suspension rates are more than twice the suspension rates in the surrounding suburban districts;

i. The percentage of students continuing to college is significantly lower than in surrounding suburban districts, and in some cases below 35% which is half the percentage in New York City;

Nowhere in these allegations do Plaintiffs allege that their Education Article claims are based on the State’s disparities in funding of city and non-city school districts – as claimed by Defendant in Point II of its Memorandum of Law. Instead, Plaintiffs clearly allege that Defendant’s educational funding system is the cause of Plaintiffs’ Districts’ inadequate educational “inputs” and “outputs” and that those inadequate “inputs” and “outputs” demonstrate and result in the failure to provide the opportunity for a sound basic education.

PLAINTIFFS PROPERLY PLEAD

An Education Article claim under the New York State Constitution is stated where a plaintiff alleges:

[F]irst, that the State fails to provide them a sound basic education in that it provides deficient inputs - - teaching facilities and instrumentalities of learning which lead to deficient outputs such a test results and graduation rates; and second, that this failure is causally connected to the funding system.

Paynter v. State of New York, 100 NY2d 434, 440 (2003), see also, Campaign For Fiscal Equity, Inc. v. State of New York, 86 NY2d 307, 316 (1995).

Plaintiffs have most surely made this showing of proof in their Complaint. At paragraphs 28-30 and 39-42 of their Complaint plaintiffs allege as follows::

Districts.:

a. The high school completion rates in four years or by age twenty-one for Plaintiffs’ Districts are lower than rates in other districts in the State and far lower than in non-city districts. These disheartening statistics are also reflected in suspension and dropout rates, percentages of general equivalency and non-Regents’ diplomas attained, and percentages of graduates attending four year colleges or universities.

Defendant may be tempted to argue that Plaintiffs’ Districts are free simply to raise taxes in order to ensure that they are providing their students with a sound basic education. First, this argument, however, has been rejected by the Court of Appeals. In Campaign for Fiscal Equity v. State of New York, 100 NY2d 893 (2003), the Court held as follows:

…Of the State’s rebuttal arguments, one more requires special attention The State argues that the City actually has a greater capacity to fund education from local revenues than many local governments statewide, yet fails to make anything like the same tax effort that other localities make. Indeed, 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 for its own contribution, leaving the school budget unimproved.

The trial court found evidence to support this assertion; noted unique pressures on the City budget and other factors that account for some of the difference in tax efforts; and concluded that the ultimate responsibility to address this problem still lay with the State (187 Misc. 2d at 97-99). The Appellate Division expressly rejected the State’s contention that “any inadequacy in funding is the fault of the City,” noting that the “State exerts extensive control over the City, including taxes that may be levied and debts that may be incurred,” but reflecting that the remedy rather than “requiring the State to write out a check every time the City underfunds education” may be for the State to “require the City to maintain a certain level of education funding” (295 A.D.2d at 18, 19).

Here, therefore, there is next to no dispute. If the State believes that deficient City tax effort is a significant contributing cause to the underfunding of City schools, it is for the State – through a combination of enforcing existing laws such as the Stavisky-Goodman Law (Education Law §2576[5-a]) and new legislation – to consider corrective measures. This possibility pertains to the remedy, not to the definition of Plaintiffs’ burden of proof on causation or - - what amounts to the same thing in practice - - to the determination of whether Plaintiffs’ cause of action is viable.

In CFE Judge Simons argued otherwise, citing declining City contributions to the school budget as part of his reason why Plaintiffs’ claim should have been dismissed (86 N.Y.2d at 334, 340-341). The State essentially tries to revive this argument, contending that plaintiffs must lose because they have not shown why their grievance could not be addressed by measures less drastic than constitutional adjudication: greater effort by the City, whether voluntary or statutory. The analysis we have already outlined regarding responsibility for special education placement and teacher employment practices applies here again. Relative to the State, the City has absolutely no control over the school funding system. (City v. State 86 N.Y.2d at 295) and while any failings may be considered in determining the remedy, they do not constitute a supervening cause sufficient to decide the case of the State.

Second, Plaintiffs’ Districts’ local tax rates are already unsustainably high, unable to keep up with the steadily growing cost of living let alone to provide the additional resources necessary to provide a sound basic education for all their students. Plaintiffs’ Districts cannot simply raise tax rates to provide the requisite additional resources.

It is clear, therefore, that Plaintiff school board members as residents of Plaintiffs’ Districts have a cognizable stake in the outcome of this case, hence standing to sue, and, moreover, have the capacity to sue as taxpayers under the State Finance Law, section 123(b).

Moreover, Defendant’s claim that Plaintiff New York State Association of Small City School District. Inc. lacks capacity to sue is, in a word -- wrong. The Association is a Not-For-Profit Corporation (Complaint ¶ 6), and, as such, has the capacity to “sue and be sued in all courts and to participate in actions and proceedings.” Not-For-Profit Corporation Law §202(a)(2); See also, Finger Lakes Health Systems Agency v. St. Joseph’s Hospital, 81 A.D.2d 403 (3d Dept. 1981).

The three (3) cases cited by Defendant as supporting the proposition that the Association lacks capacity all address standing -- not capacity. In Grumet v. Board of Education of Kiryas Joel Village School District, 187 A.D.2d 16 (3d Dept. 1992), the issue before the Third Department was whether Association and its offices lacked standing as citizen taxpayers. In Society of the Plastic Indus. v. County of Suffolk, 77 NY2d 261 (1991), the issue before the Court of Appeals was whether the Association’s standing failed for lacking of interests falling within the cognizable zone of interests. In Aeneas McDonald Police Benevolent Ass’n v. City of Geneva, 92 NY2d 326 (1998), the issue before the Court was whether petitioner had associational standing. And despite the fact that the Defendant has not raised the issue, it is clear that Plaintiff Association has standing to sue by virtue of the injuries to its member districts (Grumet v. Board of Education of Kiryas Joel Village School District supra).

Notwithstanding these allegations, and notwithstanding the CPLR’s dictate that “pleadings shall be liberally construed” and “defects should be ignored” (see, CPLR 3026), Defendant asserts that Plaintiffs’ allegations are defective because they lack “specificity”. Defendant maintains that such “specificity” is required under the holding of Campaign for Fiscal Equity v. State of New York 86 NY2d 307, 319 (1995). This is not the holding of this case. Instead, the language quoted by Defendant in its Memorandum of Law refers only to the precise allegations made by the Plaintiffs in that case. The Court did not hold that Education Article Plaintiffs must allege and specify gross educational inadequacies -- as claimed by Defendant in its Memorandum -- only that by doing so Plaintiffs in that case stated a cause of action under the Education Article.

Moreover, Plaintiffs’ have amended their Complaint providing greater detail than in its original complaint. Such greater detail is not necessary to sustain Plaintiffs’ claim. Nevertheless, such additional detail should render Defendant’s motion moot and it is therefore no longer necessary for the Court to decide this motion.

For all the foregoing reasons, the Court should deny Defendant’s motion to dismiss the Complaint in its entirety.

[1] It should be noted that the decision of the Court of Appeals in Campaign for Fiscal Equity, et al. v. State of N.Y. (100 N.Y. 2d 893 (2003)) is replete with statistical comparisons between the N.Y.C. school system and districts statewide and suburban school districts, not as a means of showing inequity, but as a means of establishing a bench mark for successful schools and for the degree of insufficiency of the N.Y.C. educational system in providing a sound basic education.