1 before the united states department of education office for civil ...

were eligible for free or reduced price lunch. 3Middletown’s Instructional Expenditure Per Pupilis more than $1000 below similar districts. 4Due to the Respondents’ systematic failure toprovide an adequate level of state aid, Middletown has been forced to eliminate over 145 staffpositions over the past four years.Middletown serves on average 800 ELLs per school year for whom it providesspecial educational programming. ELLs must remain in Middletown’s special programs untilthey test as proficient on the New York State English as a Second Language Achievement Test(“NYSESLAT”). Students who are unable to pass the NYSESLAT for more than 6 years aredesignated “long term LEPs” and must be reported to NYSED.Pursuant to Part 154 of the Commissioner’s Regulations, all schools receivingFoundation Aid funding from NYSED (described in detail in Section III, supra) must provideEnglish as a Second Language (“ESL”) classes for their ELLs. 8 N.Y.C.R.R. § 154.3.Middletown provides two programs at the elementary level for its ELLs: (1) an ESL program;and (2) a bilingual program. These programs are supported by 48 certified teachers.ESL classes are taught solely in English by a teacher certified in teaching Englishas a Second Language (“TESOL”). Based on level of English proficiency, Middletown providesELLs with either 1, 2, or 3 periods a day of ESL instruction. Beginner and intermediate ELLsreceive all English Language Arts (“ELA”) instruction from ESL teachers. Advanced ELLsreceive ELA instruction from their homeroom teachers, and also receive one period of3 New York State Report Card, Middletown City School District, March 25, 2013, available at:https://reportcards.nysed.gov/files/2011-12/RC-2012-441000010000.pdf (hereinafter “Middletown Report Card”), at3.4 New York State School Report Card, Fiscal Accountability Supplement, available at:https://reportcards.nysed.gov/files/2011-12/FIS-2012-441000010000.pdf.5

B. The Individual ComplainantsThe individual complainants are parents whose children attend Middletown’sschools. For the children of each of the individual complainants, the funding disparity that is thesubject of this Complaint has created, inter alia, larger class sizes; higher student-to-teacherratios; reduced curricula; cuts in and elimination of programs and electives and advancedplacement courses; shortages of textbooks and resources; shortages of technology; insufficientphysical education and extracurricular activities; insufficient library resources; and insufficientfacilities.C. The RespondentsRespondents are the State of New York by and through the entities chieflyresponsible for the allocation and distribution of moneys to the State’s school districts, includingMiddletown. Those entities include the New York State Legislature, the Governor of the Stateof New York, NYSED, New York State Board of Regents and New York State Commissioner ofEducation.The Board of Regents is responsible for the general supervision of all educationalactivities within the State, presiding over the University and NYSED. The Board comprises 17members elected by the State Legislature for 5 year terms: 1 from each of the State's 13 judicialdistricts and 4 members who serve at large. 7 The Commissioner of Education (currently, Dr.John B. King, Jr.) oversees more than 7,000 public and independent elementary and secondaryschools (serving 3.1 million students), and hundreds of other educational institutions across NewYork State including higher education, libraries, and museums. The Commissioner holds himselfout as a strong voice for education reform and a driving force in New York’s successful Federal7 http://www.regents.nysed.gov/7

Race to the Top application. 8The Commissioner is, in effect, New York State’s superintendentof schools and reports to the Board of Regents -- effectively the State’s Board of Education.NYSED is New York State’s education agency. NYSED holds itself out to be one of the mostcomplete, interconnected systems of educational services in the United States. 9Its statedmission is to raise the knowledge, skill, and opportunity of all the people in New York. NYSED,the Board of Regents and Commissioner direct where educational funds are distributed inaccordance with education aid formulas established and approved by the New York StateLegislature and Governor.At all times relevant to this Complaint, New York State and NYSED have beensubstantial recipients of federal financial assistance. During the 2012 and 2013 fiscal years, NewYork State received 1089 federal grants totaling $5.67 billion. 10During the 2012 and 2013 fiscalyears, NYSED received 5 federal grants totaling approximately $49.94 million. 11Notably, NewYork State and NYSED were recipients of American Recovery and Reinvestment Act funds in2009, and NYSED, as New York’s education agency, was responsible for distributing thesefunds to school districts in New York.III.NEW YORK’S DISCRIMINATORY STATE FUNDINGSTRUCTURESupport for public education in New York comes from three sources: (1) thefederal government (approximately 5 percent); (2) state formula aids and grants (approximately40 percent); and (3) revenues raised locally (approximately 55 percent). State aid for public8 http://usny.nysed.gov/about/commissioner_king.html9 http://usny.nysed.gov/about/10 U.S. Dep’t of Education, Grant Award Pick-List (Search Report), accessed October 2013.11 Id.8

schools comes primarily from the State General Fund. 12More than 90 percent of the variabilityof local revenue in New York school districts is attributable to property taxes, the burden ofwhich the State in large part assumes through the School Tax Relief (STAR) program. 13The Laws of 2007 consolidated approximately thirty existing aid programs into aFoundation Aid formula that was designed to distribute funds to school districts based on thecost of providing an adequate education, adjusted to reflect regional costs and concentration ofneedy pupils. 14One of the aid programs that was eliminated in the 2007 consolidation was theLimited English Proficiency (“LEP”) aid program, which was the principal source of funding forELL programming. Pursuant to the Foundation Aid formula, needy districts like Middletownwere deemed to require a minimum amount of state funding to provide a “sound basiceducation” to all their students, including ELLs.The 2007-2008 Enacted Budget included a four-year phase-in of Foundation Aid.The 2009-2010 Enacted Budget extended the phase-in to 2013-2014 and froze 2009-2010 and2010-2011 payable Foundation Aid to 2008-2009 Foundation Aid. The 2011-2012 EnactedBudget extended the phase-in to 2016-2017 and froze 2011-2012 payable Foundation Aid to2008-2009 Foundation Aid. The 2012-2013 Enacted Budget provided no phase-in of 2013-2014aid except for the New York City School District at 5.23 percent. 15The effects of these freezes on Foundation Aid were compounded by budget cutsin 2009. Pursuant to Section 24 of Part A of Chapter 57 of the Laws of 2009, New York’s12 New York State Education Department Fiscal Analysis and Research Unit, Primer on State Aid, available athttp://www.oms.nysed.gov/faru/PDFDocuments/Primer13-14B.pdf.13 Baker, B., Corcoran, S., “The Stealth Inequities of School Funding: How State and Local School Finance SystemsPerpetuate Inequitable Student Spending,” AmericanProgress.com, Sept. 2012.14 Id.15 Id.9

school districts were assessed a Deficit Reduction Assessment (“DRA”) of $2.097 billion toclose New York’s fiscal deficit. 16 Middletown was assessed a $3,024,767 DRA. 17In 2009, New York State received a $2.5 billion State Fiscal Stabilization Fund(“SFSF”) Education Fund grant pursuant to the American Recovery and Reinvestment Act(“ARRA”) and NYSED was responsible for distributing these funds to school districts in NewYork to close the gap created by the DRA. 18However, rather than distributing the SFSF fundsaccording to the Foundation Aid formula, the funds were distributed to return Foundation Aid tothe “freeze” level across the board, and to fund other school expense-driven aids at higher levels.Since 2007, New York State has gradually adjusted the Foundation Aid formulato provide more state funding to low poverty districts and less state funding to high povertydistricts. 19The effects of these adjustments have been exacerbated by the State’s STAR aidformula, which has enhanced the state aid provided to affluent districts by a considerablemargin. 20Together, the Foundation Aid freezes, NYSED’s distribution of SFSF funds, persistentstate aid cuts, and the inequitable STAR aid formula have undermined the purpose of theFoundation Aid formula of prioritizing funding to needy school districts, and instead resulted inthe neediest school districts receiving a much smaller percentage of the Foundation Aid they16 New York State Education Department, Deficit Reduction Assessment Restoration by District, available athttps://stateaid.nysed.gov/budget/html_docs/dra_restoration.htm17 Id.18 New York State Monitoring Plan and Protocols For the State Fiscal Stabilization Education and OtherGovernment Services Fund, available at http://usny.nysed.gov/arra/monitoringauditing/documents/NewYorkState_SFSF_MonitoringPlan.pdf.19 Baker, Bruce, “School Funding Fairness in New York State,” prepared on behalf of the New York StateAssociation of Small City School Districts, Oct. 1, 2011.20 Id. at 22.10

In short, the whiter a school district’s population, the more likely the district isreceiving full or close to full funding. A “minority-as-majority” district is three times as likely tobe underfunded as a predominantly white district.14

Middletown, a “minority-as-majority” school district in New York, has beenharmed by New York’s racially discriminatory funding practices. Approximately 77 percent ofMiddletown’s student population is non-white, and Middletown receives only 56 percent of theFoundation Aid funding to which it is entitled.15

IV.ARGUMENTA. The State’s Distribution Of Foundation Aid DisparatelyImpacts New York Students On The Basis Of Race.Title VI prohibits discrimination on the basis of race, color, or national origin inprograms and activities receiving Federal financial assistance. Specifically, Title VI providesthat:[n]o person in the United States shall, on the ground of race, color,or national origin, be excluded from participation in, be denied thebenefits of, or be subjected to discrimination under any program oractivity receiving Federal financial assistance.Title VI, § 601; 42 U.S.C. § 2000d. The United States Supreme Court has held that Section 601only prohibits intentional discrimination. See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S.582 (1983). However, Section 602 “authorize[s] and direct[s]” federal financial assistance toparticular programs or activities “to effectuate the provisions of Section 601 . . . by issuing rules,17

egulations, or orders of general applicability.” 42 U.S.C. § 200d. At least 40 federal agencieshave adopted regulations that prohibit disparate-impact discrimination pursuant to this authority.See Guardians, 463 U.S. at 619 (Marshall, J. dissenting). Department of Education regulationsstate:A recipient, in determining the types of services, financial aid, orother benefits, or facilities which will be provided under any suchprogram, or the class of individuals to whom, or the situations inwhich, such services, financial aid, other benefits, or facilities willbe provided under any such program, or the class of individuals tobe afforded an opportunity to participate in any such program, maynot, directly or through contractual or other arrangements, utilizecriteria or methods of administration which have the effect ofsubjecting individuals to discrimination because of their race,color, or national origin, or have the effect of defeating orsubstantially impairing accomplishment of the objectives of theprogram as respect individuals of a particular race, color, ornational origin.”34 C.F.R. § 100.3(b) (emphasis added). Pursuant to such regulations, all entities that receivefederal funding, including New York State and NYSED, enter into standard agreements orprovide assurances that require certification that the recipients will comply with theimplementing regulations under Title VI. Guardians, 463 U.S. 582, 642 n.13. The SupremeCourt has held that these regulations may validly prohibit practices having a disparate impact onprotected groups, even if the actions or practices are not intentionally discriminatory. Id;Alexander v. Choate, supra; see also Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996); NewYork Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); Chicago v. Lindley, 66 F.3d819 (7th Cir. 1995); David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988); Gomez v. Illinois State Bd.Of Educ., 811 F.2d 1030 (7th Cir. 1987); Georgia State Conf. v. Georgia, 775 F.2d 1403 (11thCir. 1985); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).18

A recipient’s practices have a racially discriminatory impact if they have adisproportionate impact on a group protected by Title VI. Lau v. Nichols, 414 U.S. 563 at 568(1974). Disparate impact violations occur where recipients utilize policies or practices that resultin the provision of fewer services or benefits, or inferior services or benefits, to members of aprotected group. See Meek v. Martinez, 724 F. Supp. 888 (S.D.Fla. 1987) (Florida’s use offunding formula in distributing aid resulted in a substantially adverse disparate impact onminorities and the elderly); see also Campaign for Fiscal Equity, Inc. v. State of New York, 86N.Y.2d 307, 655 N.E.2d 1178 (N.Y. Ct. App. Jun 15, 1995) (prima facie case established whereallocation of educational aid had a racially disparate impact); see Robinson v. Kansas, 295 F.3d1183 (10th Cir. 2002) (finding state and its education officials did not enjoy sovereign immunityfor claim based on “Kansas’ state school financing system [which,] through a provision for ‘lowenrollment weighting’ and ‘local option budgets,’ allegedly resulted in less funding per pupil inschools where minority students, students who were not of United States origin, and studentswith disabilities [were] disproportionately enrolled.”); Powell v. Ridge, 189 F.3d 387 (3d Cir.1999) (reversing dismissal and finding that complaint alleging that school districts with higherproportions of nonwhite students received less Commonwealth treasury revenues than districtswith higher proportions of white students stated a claim for disparate impact under Title VI).Claims of disparate impact under Title VI must necessarily rely on statisticalproof. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988). However, becausestatistical analysis can never scientifically prove discrimination, courts have held that a plaintiffmay establish a prima facie case of disparate impact discrimination by proffering statisticalevidence which reveals a disparity substantial enough to raise an inference of causation. EEOCv. Joint Apprenticeship Committee of Joint Industry Bd. of Elec. Indus., 186 F.3d 110, 117 (2d19

Cir. 1999) (quoting Bazemore v. Friday, 478 U.S. 385, 400 (1986) and Bridgeport Guardians,Inc. v. City of Bridgeport, 933 F.2d 1140, 1146 (2d Cir. 1991)).There is no question that the State of New York and its Education Department are“recipients” of federal funding for purposes of federal civil rights laws. New York has promisedits school districts a minimum amount of state aid in order to ensure that each district is able toprovide basic instruction to its students. Currently, however, the likelihood that a school districtis receiving the full measure of state educational aid that it has been promised, and consequently,the likelihood that the district is adequately funded, is heavily impacted by whether the districtserves predominantly white students. The disparity between the percentage of required aidreceived by predominantly white districts and the percentage received by “minority-as-majority”districts is too significant to be coincidental, and too inequitable to be supported by a “legitimatejustification.” The State’s maintenance of this funding structure, which has the effect ofdiscriminating against students on the basis of race, violates Title VI.This inequitable distribution of aid has had a foreseeable negative impact onpredominantly minority school districts, like Middletown. The educational opportunities forMiddletown’s students have been seriously impaired by the State’s failure to adequately fundminority-as-majority districts. The funding disparity has created, inter alia: larger class sizes and higher student-to-teacher ratios; reduced curricula; cuts in and elimination of programs and electives and advanced placementcourses; shortages of textbooks and resources; shortages of technology;20

insufficient physical education and extracurricular activities; insufficient library resources; insufficient facilities.The practical and actual effect of the State’s distribution of Foundation Aid has been to create apublic education system where the whiter a school district’s population, the more likely thedistrict is receiving full or close to the full funding it has been promised. The State’s failure tomeet its Foundation Aid goals thus disproportionately and unlawfully impacts minority students,including the minority students enrolled in Middletown. As a public entity and a recipient offederal assistance, New York State is responsible for ensuring that its methods of distributing aiddo not adversely and disparately impact minorities. It has failed to do so.B. The State’s Distribution Of Foundation Aid ImpermissiblyDenies Equal Educational Opportunity To New York’sStudents Based On National Origin.The relevant portions of the EEOA provide:No State shall deny equal educational opportunity to an individualon account of his or her race, color, sex, or national origin, by . . .(f) the failure by an educational agency to take appropriate actionto overcome language barriers that impede equal participation byits students in its instructional programs.20 U.S.C. § 1703. “This provision of the EEOA was intended to remedy the linguisticdiscrimination identified by Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974),in which the Supreme Court held that failing to provide for the needs of non-English speakingstudents ‘make[s] a mockery of public education,’ rendering classroom experiences for thesechildren ‘wholly incomprehensible and in no way meaningful.’” Flores v. State of Arizona, 516F.3d 1140, 1146 (9th Cir. 2008). In Flores, the District of Arizona held that Arizona’s fundingfor ELL students did not cover the incremental costs of ELL programming, and consequently21

that the “minimum base level for funding [ELL] programs [was] arbitrary and capricious and[bore] no relation to the actual funding needed to ensure that [ELL] students are achievingmastery of [the State’s] specified ‘essential skills.’” Flores II, 172 F. Supp. 2d at 1239. Thecourt held that “Arizona had, therefore, failed to follow through with . . . resources . . . necessaryto transform theory into reality.” Id. at 1239.Subsequently, Arizona moved for relief from the district court’s judgment. Thedistrict court denied relief. Flores v. Arizona, 480 F. Supp. 2d 1157, 1167 (D. Ariz. 2007). TheNinth Circuit affirmed, rejecting the State’s argument that compliance with the standards in NoChild Left Behind satisfied the State’s obligations vis a vis the EEOA. Flores v. State ofArizona, 516 F.3d 1140, 1146 (9th Cir. 2008). In affirming the denial of relief, the Ninth Circuitreiterated that “ELL students need extra help and that costs extra money.” Id. at 1167.Determining whether a state has violated the EEOA is a three-step inquiry.Castaneda v. Pickard, 648 F.2d 989, 1009-10 (5th Cir. 1981); see also Gomez v. Illinois StateBd. of Educ., 811 F.2d 1030, 1041-42 (7th Cir. 1987) (applying the Castaneda analysis); Flores,516 F.3d at 1146. First, courts must be satisfied that the “school system is purs[uing] a programinformed by an educational theory recognized as sound by some experts in the field or, at least,deemed a legitimate experimental strategy.” Castaneda, 648 F.2d at 1009. Second, “theprograms and practices actually used by a school system [must be] reasonably calculated toimplement effectively the educational theory adopted by the school.” Id. at 1010. There must, inother words, be sufficient “practices, resources and personnel . . . to transform the theory intoreality.” Id. Third, even if theory is sound and resources are adequate, the program must beborne out by practical results. Id. The Attorney General of the United States, for or in the name22

of the United States, may institute a civil action on behalf of individuals denied equal educationalopportunities. 20 U.S.C. § 1706.In addition to being racially discriminatory, New York State’s inequitabledistribution of Foundation Aid discriminates against New York’s ELL students. New York hasmore than 315,000 ELLs in its public schools. Prior to New York’s implementation of thecommon core curriculum in 2012, only 11.7 percent of ELL students in grades 3 -8 wereproficient in ELA, and only 34.4 percent were proficient in math.The results of New York’s new common-core-aligned tests, administered at theend of the 2012-2013 school year, revealed far greater inadequacies in ELL performance: only3.2 percent of ELL students scored in the proficient range for ELA and only 9.8 scored in theproficient range for math. 23New York’s high-need districts simply do not have the resourcesthey need to give their ELLs even a chance of meeting the State’s rigorous new standards. Forexample: in the Amityville Union Free School District (92 percent non-white, 14percent ELL, and 64 percent eligible for free or reduced price lunch), over88 percent of students failed to achieve proficiency in Math and over 85percent failed to achieve proficiency in ELA. in the Freeport Union Free School District (91 percent non-white, 16percent ELL, and 54 percent eligible for free or reduced price lunch), over23 See Waldman, Scott, “Bar lifts, scores fall,” Timesunion.com, http://www.timesunion.com/local/article/Bar-liftsscores-fall-4714067.php#page-2(Aug. 8, 2013); Maxwell, Leslie, “A Look at ELL Performance So Far onCommon-Core-Aligned Tests,” Education Week, http://blogs.edweek.org/edweek/learning-thelanguage/2013/08/ell_performance_sinks_on_commo.html?utm_source=feedburner&utm_medium=email&utm_cacampai=Feed%3A+LearningTheLanguage+%28Education+Week+Blog%3A+Learning+the+Language%29 (Aug. 9,2013).23

82 percent of students failed to achieve proficiency in Math and over 78percent failed to achieve proficiency in ELA. in the Central Islip Union Free District (92 percent non-white, 26 percentELL, and 83 percent eligible for free or reduced price lunch), over 91percent failed to achieve proficiency in Math and over 88 percent failed toachieve proficiency in ELA. 24Middletown’s ELL achievement numbers were similar to these high-need,underfunded districts: 2 percent of Middletown’s ELL students scored in the proficient range forELL, and 2 percent scored in the proficient range for math.Despite Middletown’s ardent efforts to defeat linguistic barriers, the State’sfailure to equitably distribute Foundation Aid has had tangible deleterious effects onMiddletown’s ELLs. Like many other high-need school districts, none of Middletown’s ELLsgraduated with advanced designation diplomas, the State’s measure of college and careerreadiness, in the 2012 or 2013 school years. 25The State’s inequitable distribution of FoundationAid has created serious and insurmountable barriers to Middletown’s ability to meet the needs ofits ELLs, including:the inability to provide bilingual special education classes.understaffing, resulting in bilingual classes with high pupil to teacherratios and insufficient pull-out ESL servicesinsufficient Academic Intervention Servicesinsufficient teaching materials for both ESL and content areas24 See https://reportcards.nysed.gov/25 See Press Release,http://www.oms.nysed.gov/press/GraduationRates2012OverallImproveSlightlyButStillTooLow.html, accessedOctober 2013.24

The cost of ELL instruction that complies with constitutional mandates farexceeds the only financial assistance the State provides school districts for such purposes. NewYork, through its inequitable distribution of Foundation Aid, has failed to devote sufficient“practices, resources and personnel” to ensure that ELLs in low-wealth districts like Middletownmake meaningful academic progress, or “transform theory into reality.” The State’s recentassessments demonstrate that low-wealth districts like Middletown simply do not have theresources to ensure that their programs “bear out practical results” for their most vulnerablestudents. Castaneda, 648 F.2d at 1009. New York’s inequitable funding structure has severelycompromised Middletown’s ability to provide for the needs of its non-English speaking students.This linguistic discrimination violates the EEOA.V. CONCLUSIONFor the above-stated reasons, the Department of Education should fullyinvestigate this Complaint and direct the Respondents to: (1) discontinue or remedy theirinequitable, racially discriminatory methods of funding public education in New York; and (2)provide adequate funds to local school districts to enable them to remove barriers to participationin educational programs for ELL students.25

Dated: Garden City, New YorkSyracuse, New YorkDecember 13, 2013Respectfully submitted,BOND, SCHOENECK & KING, PLLCBy:________________________Howard M. MillerKate I. ReidAttorneys for the Enlarged City SchoolDistrict of Middletown1399 Franklin AvenueGarden City, New York 11530(516) 267-6300-and-One Lincoln CenterSyracuse, New York 13202-1355(315) 218-862526