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May 2007 Vol. XXI,
No. 5 |
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CONTRACT FOR EXCELLENCE DISCUSSED WITH DOB DIRECTOR PAUL FRANCIS |
The Association’s Board of Directors
scheduled a meeting with DOB Director, Paul Francis, and Deputy
Secretary to the Governor, Manny Rivera on May 7th to discuss
implementation of the contract for excellence. Manny Rivera was pulled
out of the meeting at the last minute and the Assistant Secretary for
Education, John Reid, appeared in his place. Chip Foster, Senior Budget
Analyst for Education at DOB also attended.
The small city contract districts were also
invited (19 of the 55 contract districts are small city districts). In
attendance were Board President Judith Johnson, Superintendent,
Peekskill CSD, Board members William Lynch, Superintendent.
Fulton CSD, Tom Woodhull, BOE Newburgh CSD, Tom McGowan, Superintendent.
Glens Falls CSD, Judy Doesschatte, BOE Albany CSD, Peggy Wozniak,
Superintendent. Binghamton CSD. Contract districts were also
represented by Lonnie Palmer, Superintendent, Troy CSD. Assistant
Superintendent Mike Pacella, Newburgh CSD, Assistant Superintendent
Betsy Conners, Fulton CSD, Lauren Poehlman, Business Official, Geneva
CSD and Paul Darnell, Geneva CSD.
The group met prior to the meeting to discuss
the questions which had been received about the contract. After a
vigorous discussion, it became clear that several themes were being
repeated: some districts already had student improvement programs in
place which needed financial support; all contract districts had their
budgets substantially in place well before SED approved the emergency
regulations on April 27th; and all contract districts were facing
substantial tax levy increases which will increase their already high
tax rates. It was agreed that the need for greater flexibility in the
regulations and in interpretation by SED should be the focus of the
meeting.
At the meeting, Paul Francis emphasized that
it was the Governor's intention that as much of the Foundation Aid
increase as possible be used for new or expanded student improvement
programs. He said that the Governor recognized the pressure contract
districts were under from high tax rates and rising costs. Paul said
that the added 25% carve-out for existing programs was intended to
address that.
We pointed out to Paul that the 3%
save-harmless and the 25% for a district receiving a 10% increase would
result in a 4.75% carve-out, well below the 5.5% to 8% increase in base
costs that small city districts were experiencing. The balance of cost
increases over the 4.75% carve-out would fall on the taxpayers to
support. This result was particularly harsh when surrounding suburban
districts were announcing little or no increases in their tax rates. It
was stressed that the small city districts were supportive of the
Governor's reform proposals but needed flexibility to be able to sell
their new budgets to local taxpayers and avoid the pain of austerity.
Paul Francis reminded everyone that the
contract funding was not intended to be used for tax relief. We were
able to disabuse him on that point: we were not talking about using
contract dollars to lower tax rates/levies, but, rather, to forestall
unreasonably large increases.
With that potentially large misunderstanding
avoided, we then discussed the SED interpretation of the 25% carve-out.
SED has indicated that the carve-out is computed by multiplying 25% by
the difference between the Foundation Aid amount for 2007-08 and 103% of
the Foundation Aid base. The statutory language itself, however, could
be interpreted to allow the 25% to be multiplied by the full amount
of Foundation Aid increase, or an additional .7% ( 3% times 25%). This
would raise the total carve-out to 5.45% for a district receiving a 10%
increase in Foundation Aid. This is a good example of the kind of
flexibility needed in implementation of the contract in order to make it
workable.
We then discussed the need for greater
flexibility for districts with existing student improvement programs.
Many districts have already installed new programs and their
taxpayers have been paying the bill. If contract dollars could be used
for increases in new programs, defined as programs begun within the past
three fiscal years, this would avoid the necessity of abandoning
effective programs and starting all over again. Without this
flexibility, some districts will experience double digit tax rate
increases.
The need to emphasize tax relief through the
STAR program was also mentioned. We said that most taxpayers are not
aware of the benefit of the program and greater education about the
issue is needed.
Chip Foster stated that in the second through
fourth year of the contract, districts will be added or taken off the
list of contract districts through the operation of the Foundation Aid
formula. Moreover, districts which achieve success will be taken off the
list and Foundation Aid dollars will be freed from the contract. He said
he would provide a run showing the Foundation Aid increases through all
four years (see attached run showing years one and four...years two and
three will be made available shortly).
As the meeting concluded, John Reid requested
that we submit our questions and recommended changes for C4E
interpretations/regulations to him and Paul for review. We are in the
process of doing that now. |
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SCSD
LITIGATION
UPDATE |
The appeal to the Appellate Division, Third
Dept., of Judge McNamara's decision and order dismissing our amended
complaint was argued before Supreme Court Justices Spain, Mercure,
Mugglin, Carpinello and Kane April 26, 2007 in Albany. The Third Dept.
had previously decided the NYCLU case and had familiarity with
the issues. Also on the calendar for argument that day was Abbruzezee
v. NYS Lobbying Commission, a case involving possible illegal gifts
to Majority Leader, Sen. Joseph Bruno and the quashing of a Commission
subpoena. It was an interesting day for the Court.
The argument on the SCSD case went
well. The Justices asked numerous pointed questions, indicating a good
grasp of the issues. Justice Carpinello asked first whether the case was
'moot' since the State Budget had raised State Aid to Education this
year. We were able to point out that the 18 plaintiff districts remained
considerably short of full funding despite that increase. Justice Spain
remarked that the Court of Appeals had observed that NYC was 'unique' in
its problems with education. We were able to refer him to that day’s
front page of the Times Union which reported that Albany's
graduation rate was the lowest in the state and that four out of five of
the lowest area districts were small city districts.
It seemed that the Court had great concern
over granting the Association standing to sue when the districts and
school boards themselves could not sue. This is a novel issue which will
require the Court to 'make new law,' never a comfortable position for
judges. The Court also focused primarily on the specificity issue, i.e.
should the amended complaint specify education failings for each of the
18 districts. This would lengthen the amended complaint considerably.
As we have said before, this appeal does not
relate to the merits of the case. Whatever the decision is, the case
will be able to move ahead once the appeal is disposed of by the Court.
The Appellate Division usually takes five to
six weeks to render a decision. We believe that in any event, a decision
will be issued before the Court's next term begins in July.
The Appellate Brief, The State’s Brief and
our Reply Brief are on the Association’s website (http://scsd.neric.org).
Below is the outline of oral argument. Please feel free to contact our
office if you have any questions or comments. |
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Oral Argument
Outline |
I. Introduction
Good afternoon your honors; in this case, we represent the Association
of Small city School Districts, 138 Board of Education members and 82
parents and students.
The Campaign for
Fiscal Equity trilogy of decisions, which took over ten years to
complete, brought to light serious shortcomings and state
constitutional violations in the New York City educational system.
The case before the Court today, which involves eighteen of the 57 small
city school districts, demonstrates that those shortcomings and
violations are not confined to NYC, and, in fact, are found in numerous
low wealth/high student need districts throughout the state. Plaintiffs
assert that chronic under funding in these 18 districts has provided
insufficient educational resources which in turn have resulted in
substandard student performance. Plaintiffs seek an order enjoining the
State to correct those violations by providing funding sufficient to
provide a sound basic education for all children in those districts.
II. Specificity
The court below issued a decision and order granting the State’s Motion
to Dismiss. It granted the relief requested first on the basis of some
of the parties’ lack of standing and capacity to sue, and second on the
purported failure of the Amended Complaint to follow standards of
pleading set forth by the Court of Appeals in the CFE cases.
We would like to
address that second and most important part of the court’s decision
first.
The body of law
crafted by the Court of Appeals in the CFE case establishes a
framework for claims arising under the education article of the
state constitution. That framework requires that in order to prove the
lack of a sound basic education, plaintiffs must allege and prove
district wide insufficiency in educational inputs, i.e.
resources, and insufficiency in educational outputs, i.e. student
performance. Moreover, to establish entitlement to relief, plaintiffs
must allege an insufficiency in funding and a causal connection
between the funding shortfall and the insufficiency in inputs and
outputs.
Even a casual reading
of the Amended Complaint will show that this framework, or template, has
been followed.
The first error
the court below makes, we believe, is that it compares the facts
alleged in the Amended Complaint in this case with the facts set forth
in the decision in the second CFE case, a decision rendered only
after a lengthy trial. Instead, the court should have compared
our Amended Complaint with the CFE complaint, which was upheld by
the Court of Appeals in the first CFE decision as stating a valid
cause of action. We have provided the Court with a copy of the CFE
complaint as Appendix B to our brief.
Next, the court below
states that it cannot merely assume that the gross educational
deficiencies alleged in the Amended Complaint exist in each of
plaintiffs’ districts. We disagree. The Amended Complaint alleged that
the deficiencies exist in all plaintiffs’ districts. Upon a motion to
dismiss for failure to state a cause of action the court must assume
that such factual allegations are true, and then determine whether the
pleading is sufficient.
Moreover, the Amended
Complaint does allege that educational deficiencies exist in each
district and does state that the failings are district wide in each
district. The relief requested by plaintiffs highlights the Amended
Complaint’s district-wide allegations, in contrast to the case
erroneously relied upon by the court below, i.e. NYCLU which
speaks only to failures on the school level.
Further, the fact that
some allegations use statistics aggregated across districts is
not a defect in the pleading. This is what the complaint in the CFE
case did with regard to the numerous NYC community school districts. The
standard of pleading does not require a showing that every school is
failing. The standard requires, instead, a showing that educational
failures are systemic or system wide.
The Amended Complaint
contains 53 separate statements of facts of educational
insufficiency, covering 8 pages, and applicable to all 18 of
plaintiffs’ districts. The court below would have the Amended Complaint
allege these facts separately for each district, resulting in 954
separate allegations covering 144 pages. We think that the
intent of the Court of Appeals in the CFE cases was not
to set up such an artificial requirement for pleading an Article
XI claim.
The defendants are not
prejudiced by the Amended Complaint in its current form. There would be
no surprise in what the plaintiffs need to prove at trial for each
district and no question about the relief sought.
III. State Finance
Law § 123-b Turning to the SFL§123-b issue, the legislative intent
behind SFL§123-b was to provide standing to citizen taxpayers to raise
issues relating to financial and fiscal matters involving state and
municipal governments, despite the fact that such citizens may not have
suffered specific injury. By the time the State Legislature passed
§123-b in 1975, the Court of Appeals had already decided a case,
Boryszweski v Brydges , allowing such actions, while many other
states had already been permitting such actions for years,.
The language of §123-b
was very broad and included ‘any other illegal or unconstitutional
disbursement’ under its purview. It was so broad that the Legislature
had to specifically exempt challenges to bond issues, TANs and RANs, so
as not to upset the bond markets.
The court below would
limit application of §123-b to illegal expenditures only. The
court stated that the educational article claim of plaintiffs here
is not such an expenditure claim and is not a cause of action cognizable
under that section. This Department has already rejected such a
narrowing of interpretation of §123-b. In the Childs case, this
Court found that a claim objecting to regulations which would have
illegally restricted aid to the indigent gave rise to a claim under
§123-b. The Community Service Society case, the State
Communities Aid Association case and the Huron Group case
also clearly support this and are cited in our brief.
We would ask the Court
to pose a hypothetical question. Under the decision of the court below,
if the legislature appropriated only $1000 to a school district in the
State budget instead of the millions normally appropriated, and
consequently higher real property taxes could not make up for the
shortfall, a citizen taxpayer would not have standing to sue under
§123-b while students would be denied a constitutional right to a sound
basic education. Was that the intent behind §123-b? We think not and we
urge the Court to reverse. |
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ASSOCIATION’S
21st ANNUAL
CONFERENCE
PATHWAYS TO EXCELLENCE |
The Association’s 21st
Annual Conference scheduled for May 20th – 21st,
2007 at the Gideon Putnam Hotel in Saratoga Springs, New York.
This year’s program,
Pathways to Excellence, will address the issue of “accountability”
the Governor has married to increased funding, calling it a Contract
for Excellence. The Contract looks at effective strategies for
increasing and supporting student performance. Experts from academia,
and SED and small city school administrators are being invited to
participate in discussions on student performance from elementary school
through high school. These experts are also being asked to submit
scholarly work to be included in a report on
how to achieve success in small city schools and also to provide an
opportunity for dialogue with conference participants. This will be an
ambitious under taking, but with the help of our membership, we believe
we can begin developing materials which will be of real assistance to
districts attempting to take major strides forward. We hope you can join
us there. |
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SPAM FILTERS |
Please be aware that from time to time the
Association’s newsletters, legislative alerts and other e-mail
correspondence are returned as “undeliverable” due to district spam
filters. Our office is working to address this issue and will fax these
messages to district offices as they are returned. Association
correspondence will come from either Bob Biggerstaff (reb@biggerstaff-firm.com)
or Beth (beb@biggerstaff-firm.com).
Spam filters can be adjusted to allow messages from these email
addresses to be delivered. Please let our office know if there is
anything we can do to help make communication successful. |
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UPCOMING
EVENTS |
May 20, 2007
Meeting
Contract for Excellence Districts
2:30 – 4:00 pm
Gideon Putnam Hotel Saratoga Springs
May 20, 2007
Board of Directors Meeting – open to all members
4:15 – 5:00pm
Gideon Putnam Hotel Saratoga Springs
May 20-21, 2007
Annual Conference
Gideon Putnam Hotel
Saratoga Springs
October 26, 2007
annual breakfast
The Cornell Club, NYC
8:30am |
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