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BEFORE THE UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS


ENLARGED CITY SCHOOL DISTRICT OF
MIDDLETOWN, W.T. ON BEHALF OF E.T., W.G. ON
BEHALF OF A.S., P.B. ON BEHALF OF S.B., J.W. ON
BEHALF OF J.W. & A.W., E.E. ON BEHALF OF A.E. &
R.E., A.W. ON BEHALF OF S.W. & C.W., L.K. ON
BEHALF OF D.K.
Complainant,
v.
STATE OF NEW YORK, NEW YORK STATE
LEGISLATURE, GOVERNOR OF THE STATE OF NEW
YORK, NEW YORK DEPARTMENT OF EDUCATION
Respondents.

COMPLAINT UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 AND THE
EQUAL EDUCATIONAL OPPORTUNITIES ACT OF 1974

BOND, SCHOENECK & KING, PLLC


1399 Franklin Avenue, Suite 200
Garden City, New York 11530
Tel: (516) 267-6300
- and One Lincoln Center
Syracuse, New York 13202-1355
(315) 218-8625
Counsel for the Enlarged City School
District of Middletown

I.

INTRODUCTION

The United States Government has recognized that public school education, and
the systems by which it is financed, are critical to our Nations economic security and social
well-being. A necessary corollary of this recognition is that a system of education fails in its
mission where the system provides comparatively fewer educational opportunities for minority
students and students whose native languages create a barrier to meaningful academic progress
in their curricula.
Against this backdrop, the United States has developed a complex web of grant
funding mechanisms and statutory protections to ensure that minority students and English
Language Learners are not deprived of equal access to and participation in public education.
Unfortunately, as demonstrated below, New York State has violated these statutory proscriptions
by promulgating a school funding scheme that facially and disparately discriminates against
students based on their race and language barriers.
This Complaint is brought against New York State, the New York State
Legislature, the Governor of the State of New York, and the New York State Education
Department (NYSED) by the Enlarged City School District of Middletown (Middletown or
the District) by and through its duly elected Board of Education and its duly appointed
Superintendent of Schools Kenneth Eastwood, on behalf of its students, as well as by individual
parents, on behalf of their minor children who attend Middletowns schools. The Respondents
are recipients of federal financial assistance and are named as Respondents because: (1) they
have discriminated against students on the basis of race in a publicly funded educational system
in violation of Title VI of the Civil Rights Act of 1964; and (2) their discriminatory funding

structure has severely compromised Middletowns ability to provide for the needs of non-English
speaking students, and thus violates the Equal Educational Opportunities Act of 1974 (EEOA).
Six years ago, New York State enacted legislation to reform the States method of
allocating resources to school districts in order to address the 2006 New York Court of Appeals
order in Campaign for Fiscal Equity v. State of New York, 100 N.Y.2d 893, 801 N.E.2d 326, 769
N.Y.S.2d 106 (2003) (hereafter the CFE Case). In the CFE Case, CFE successfully challenged
New York States school finance system on the grounds that the system underfunded New York
City public schools and denied students the right to a sound basic education guaranteed by the
New York State Constitution.
Repeated budget freezes, combined with NYSEDs inequitable allocation of
resources in connection with a 2008-2009 Deficit Reduction Assessment (DRA), have resulted
in an inequitable distribution of State aid that has had a disparate and inequitable impact on New
Yorks African American, Hispanic, and other non-white students, as well as on non-Englishspeaking students. Under the current funding scheme, the more white a school districts
population, the more likely it is that the district receives all, or close to all, of the public aid it
was promised in 2007. The effects of this disparity are palpable. New York consistently lags
behind every other state in the nation in bridging the achievement gap, with only 37% of its
black and Latino males graduating from high school, compared to 78 percent of its white male
students.1 Moreover, under the current funding scheme, school districts like the Complainant
receive insufficient state aid to ensure that non-English-speaking students overcome language
barriers. State assessments administered at the end of the 2012-2013 school year revealed that

The Urgency of Now: The Schott 50 State Report on Public Education and Black Males, Schott Foundation for
Public Education, 2012.

only 3.2 percent of New Yorks ELL students are proficient in English Language Arts (ELA)
and only 9.8 are proficient in math.2
The Complainant is a school district in New York, the students of which have
suffered egregiously from the Respondents inequitable funding practices, and received less
public funding for their education than students in predominantly white school districts due to
the Respondents arbitrary and inequitable practices. The States allocation of Foundation Aid
has created a dual system of education and impeded the academic progress of New Yorks
neediest children. The States Foundation Aid formula violates Title VI, 34 C.F.R. 100.3(b)
and the EEOA. Complainant therefore asks the Department of Education to:

fully investigate these claims;

declare that the States current formulas for distributing educational aid
disparately impact New Yorks minority and non-English-speaking
students and thus violate Title VI and the EEOA;

enjoin the State from distributing educational aid in a discriminatory


manner;

II.

grant any other relief it deems just and proper


PARTIES
A.

The Enlarged City School District of Middletown

Middletown is a school district in New York. Middletown served 7022 students


during the 2011-2012 school year, 78 percent of whom were non-white, and 72 percent of whom
2

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 on
Common-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).

were eligible for free or reduced price lunch.3 Middletowns Instructional Expenditure Per Pupil
is more than $1000 below similar districts.4 Due to the Respondents systematic failure to
provide an adequate level of state aid, Middletown has been forced to eliminate over 145 staff
positions over the past four years.
Middletown serves on average 800 ELLs per school year for whom it provides
special educational programming. ELLs must remain in Middletowns special programs until
they 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 are
designated long term LEPs and must be reported to NYSED.
Pursuant to Part 154 of the Commissioners Regulations, all schools receiving
Foundation Aid funding from NYSED (described in detail in Section III, supra) must provide
English 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 English
as a Second Language (TESOL). Based on level of English proficiency, Middletown provides
ELLs with either 1, 2, or 3 periods a day of ESL instruction. Beginner and intermediate ELLs
receive all English Language Arts (ELA) instruction from ESL teachers. Advanced ELLs
receive ELA instruction from their homeroom teachers, and also receive one period of

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), at
3.
4

New York State School Report Card, Fiscal Accountability Supplement, available at:
https://reportcards.nysed.gov/files/2011-12/FIS-2012-441000010000.pdf.

supplemental instruction by an ESL teacher. ESL instruction is literacy-based, with a focus on


listening, speaking, reading, writing, vocabulary and oral language development.
Pursuant to its duties under Part 154 of the Commissioners Regulations,
Middletown also provides a bilingual program for its Spanish speaking students. 8 N.Y.C.R.R.
154.3(g)(1).5 At the elementary level, bilingual education is provided through self-contained
classrooms taught by certified elementary teachers who have a bilingual extension. Students in
the bilingual classroom begin by reading in Spanish, and English reading is gradually integrated.
By 4th grade, 50 percent of the texts in the bilingual classroom are in English and 50 percent are
in Spanish.
At the secondary level, Middletown provides ESL instruction through scheduled
courses. Middletown offers bilingual courses for math and science in middle school, and for
math, science, and social studies at the high school.
Middletown has standing to bring this Complaint because the Respondents
discriminatory educational funding structure has substantially impaired Middletowns ability to
afford equal educational opportunities to the pupils it educates. Middletown has been designated
a High Need/Resource school district by NYSED, and serves a community that generates
insufficient local revenue to provide Middletowns pupils with an adequate education.6 The
funding disparity has frustrated Middletowns ability to provide the remedial services that its
ELLs require to overcome language barriers and make meaningful academic progress.

This provision mandates that each school district that has an enrollment of 20 or more pupils with limited English
proficiency of the same grade level assigned to a building, all of whom have the same native language which is other
than English, shall provide such pupils with bilingual education programs.
6

NYSEDs need/resource capacity indices measure a districts ability to meet the needs of its students with local
resources. See New York State Education Department, Need/Resource Capacity Categories, available at:
http://www.p12.nysed.gov/irs/accountability/2011-12/NeedResourceCapacityIndex.pdf.

B.

The Individual Complainants

The individual complainants are parents whose children attend Middletowns


schools. For the children of each of the individual complainants, the funding disparity that is the
subject of this Complaint has created, inter alia, larger class sizes; higher student-to-teacher
ratios; reduced curricula; cuts in and elimination of programs and electives and advanced
placement courses; shortages of textbooks and resources; shortages of technology; insufficient
physical education and extracurricular activities; insufficient library resources; and insufficient
facilities.
C.

The Respondents

Respondents are the State of New York by and through the entities chiefly
responsible for the allocation and distribution of moneys to the States school districts, including
Middletown. Those entities include the New York State Legislature, the Governor of the State
of New York, NYSED, New York State Board of Regents and New York State Commissioner of
Education.
The Board of Regents is responsible for the general supervision of all educational
activities within the State, presiding over the University and NYSED. The Board comprises 17
members elected by the State Legislature for 5 year terms: 1 from each of the State's 13 judicial
districts 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 secondary
schools (serving 3.1 million students), and hundreds of other educational institutions across New
York State including higher education, libraries, and museums. The Commissioner holds himself
out as a strong voice for education reform and a driving force in New Yorks successful Federal

http://www.regents.nysed.gov/

Race to the Top application.8 The Commissioner is, in effect, New York States superintendent
of schools and reports to the Board of Regents -- effectively the States Board of Education.
NYSED is New York States education agency. NYSED holds itself out to be one of the most
complete, interconnected systems of educational services in the United States.9 Its stated mission
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 in
accordance with education aid formulas established and approved by the New York State
Legislature and Governor.
At all times relevant to this Complaint, New York State and NYSED have been
substantial recipients of federal financial assistance. During the 2012 and 2013 fiscal years, New
York State received 1089 federal grants totaling $5.67 billion.10 During the 2012 and 2013 fiscal
years, NYSED received 5 federal grants totaling approximately $49.94 million.11 Notably, New
York State and NYSED were recipients of American Recovery and Reinvestment Act funds in
2009, and NYSED, as New Yorks education agency, was responsible for distributing these
funds to school districts in New York.
III.

NEW YORKS DISCRIMINATORY STATE FUNDING


STRUCTURE

Support for public education in New York comes from three sources: (1) the
federal government (approximately 5 percent); (2) state formula aids and grants (approximately
40 percent); and (3) revenues raised locally (approximately 55 percent). State aid for public

http://usny.nysed.gov/about/commissioner_king.html

http://usny.nysed.gov/about/

10

11

U.S. Dept of Education, Grant Award Pick-List (Search Report), accessed October 2013.
Id.

schools comes primarily from the State General Fund.12 More than 90 percent of the variability
of local revenue in New York school districts is attributable to property taxes, the burden of
which the State in large part assumes through the School Tax Relief (STAR) program.13
The Laws of 2007 consolidated approximately thirty existing aid programs into a
Foundation Aid formula that was designed to distribute funds to school districts based on the
cost of providing an adequate education, adjusted to reflect regional costs and concentration of
needy pupils.14 One of the aid programs that was eliminated in the 2007 consolidation was the
Limited English Proficiency (LEP) aid program, which was the principal source of funding for
ELL programming. Pursuant to the Foundation Aid formula, needy districts like Middletown
were deemed to require a minimum amount of state funding to provide a sound basic
education 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 and
2010-2011 payable Foundation Aid to 2008-2009 Foundation Aid. The 2011-2012 Enacted
Budget extended the phase-in to 2016-2017 and froze 2011-2012 payable Foundation Aid to
2008-2009 Foundation Aid. The 2012-2013 Enacted Budget provided no phase-in of 2013-2014
aid except for the New York City School District at 5.23 percent.15
The effects of these freezes on Foundation Aid were compounded by budget cuts
in 2009. Pursuant to Section 24 of Part A of Chapter 57 of the Laws of 2009, New Yorks

12

New York State Education Department Fiscal Analysis and Research Unit, Primer on State Aid, available at
http://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 Systems
Perpetuate Inequitable Student Spending, AmericanProgress.com, Sept. 2012.
14

Id.

15

Id.

school districts were assessed a Deficit Reduction Assessment (DRA) of $2.097 billion to
close New Yorks fiscal deficit.16 Middletown was assessed a $3,024,767 DRA.17
In 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 New
York to close the gap created by the DRA.18 However, rather than distributing the SFSF funds
according to the Foundation Aid formula, the funds were distributed to return Foundation Aid to
the 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 formula
to provide more state funding to low poverty districts and less state funding to high poverty
districts.19 The effects of these adjustments have been exacerbated by the States STAR aid
formula, which has enhanced the state aid provided to affluent districts by a considerable
margin.20 Together, the Foundation Aid freezes, NYSEDs distribution of SFSF funds, persistent
state aid cuts, and the inequitable STAR aid formula have undermined the purpose of the
Foundation Aid formula of prioritizing funding to needy school districts, and instead resulted in
the neediest school districts receiving a much smaller percentage of the Foundation Aid they

16

New York State Education Department, Deficit Reduction Assessment Restoration by District, available at
https://stateaid.nysed.gov/budget/html_docs/dra_restoration.htm
17

Id.
18

New York State Monitoring Plan and Protocols For the State Fiscal Stabilization Education and Other
Government 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 State
Association of Small City School Districts, Oct. 1, 2011.
20

Id. at 22.

10

were promised in 2007 than affluent districts.21 Out of more than 600 school districts in New
York, 138 districts are receiving 100 percent or more of the Foundation Aid they were promised,
while 2 percent, including Middletown, are receiving less than 60 percent of the Foundation Aid
they were promised.22

Local School
District

County

Edinburg

Saratoga

Kiryas Joel

Orange

Onteora
Roscoe

Percentage
of Full
Funding
That
District
Currently
Receives
(Rounded)

Amount of
Aid That
District
Should Be
Receiving

1404%

Amount
of Aid
Actually
Received in
2012-2013

Difference
Between
Amount of
Aid District
Should Be
Receiving &
Amount
Received

Combined
Wealth
Ratio
(CWR)
1.0 =
Avg.

39,386

552,780

+513,394

2.833

637%

186,500

1,187,390

+1,000,890

3.721

Ulster

202%

3,254,929

6,567,820

+3,312,891

2.320

Sullivan

151%

1,192,133

1,803,784

+611,651

1.284

Tuxedo

Orange

145%

383,000

554,443

+171,443

4.088

Greenwood Lake

Orange

140%

3,075,448

4,310,753

+1,235,305

1.048

Sullivan West

Sullivan

135%

7,177,855

9,661,015

+2,483,160

1.209

Gilboa Conesvi

Schoharie

128%

1,783,536

2,285,010

+501,474

1.248

Rondout Valley

Ulster

115%

12,997,677

14,931,363

+1,933,686

1.123

Eldred

Sullivan

108%

3,085,148

3,315,980

+230,832

1.214

Bernie Knox

Albany

96%

6,113,814

5,876,382

-237,432

0.875

Livingston

Sullivan

95%

4,992,341

4,760,957

-231,384

1.089

Schalmont

Schnectady

95%

7,389,402

7,027,762

-361,640

1.064

Galway

Saratoga

94%

6,396,242

6,017,028

-379,214

0.993

Ravena Coeyman

Albany

93%

11,609,770

10,482,238

-1,127,532

0.815

New Paltz

Ulster

88%

9,729,194

8,520,141

-1,209,053

1.149

Schuylerville

Saratoga

88%

11,836,965

10,509,581

-1,327,384

0.614

Monticello

Sullivan

86%

25,559,386

21,888,345

-3,671,041

0.934

Stillwater

Saratoga

86%

7,307,409

6,290,713

-1,016,696

0.752

Voorheesville

Albany

86%

3,920,001

3,357,333

-562,668

1.149

Sharon Springs

Schoharie

85%

3,776,010

3,223,466

-552,544

0.586

Scotia Glenville

Schnectady

85%

14,776,838

12,585,746

-2,191,092

0.756

South Glens Falls

Saratoga

85%

19,419,307

16,522,887

-2,896,420

0.708

Green Island

Albany

84%

2,465,132

2,063,513

-401,619

0.736

Jefferson

Schoharie

84%

2,490,543

2,101,512

-389,031

0.668

21

The effects of this inequitable distribution of state aid on low-wealth school districts have been compounded by
the States tax cap legislation, which has divested school districts of the power to generate local revenue to meet
their growing needs. See L.2011, ch.97.
22

All the funding data on this pages 11 16 was obtained from the Statewide School Finance Consortium, available
at http://www.statewideonline.org/wordpress/data/data-from-september-2013-workshops/.

11

Local School
District

County

Percentage
of Full
Funding
That
District
Currently
Receives
(Rounded)

Amount of
Aid That
District
Should Be
Receiving

Amount
of Aid
Actually
Received in
2012-2013

Difference
Between
Amount of
Aid District
Should Be
Receiving &
Amount
Received

Combined
Wealth
Ratio
(CWR)
1.0 =
Avg.

Ballston Spa

Saratoga

82%

21,600,726

17,767,780

-3,832,946

0.772

Kingston

Ulster

80%

49,564,231

39,399,683

-10,164,548

0.882

Duanesburg

Schnectady

79%

5,602,165

4,405,504

-1,196,661

0.720

Wallkill

Ulster

79%

24,362,585

19,266,920

-5,095,665

0.694

Highland

Ulster

77%

10,416,195

8,063,187

-2,343,008

0.881

Warwick Valley

Orange

77%

19,325,764

14,907,072

-4,418,692

0.986

Pine Bush

Orange

77%

46,496,679

35,824,137

-10,672,542

0.635

Fallsburgh

Sullivan

77%

14,797,159

11,400,040

-3,397,119

0.695

Mechanicville

Saratoga

77%

8,320,594

6,436,061

-1,884,533

0.720

Saugerties

Ulster

76%

18,745,102

14,244,594

-4,500,508

.0872

Waterford

Saratoga

76%

5,473,470

4,123,790

-1,349,680

0.715

Liberty

Sullivan

74%

19,096,479

14,112,859

-4,983,620

0.615

ValleyMontgomery

Orange

74%

32,817,997

24,409,506

-8,408,491

0.691

Florida

Orange

74%

4,071,730

2,999,353

-1,072,377

0.929

Menands

Albany

74%

496,097

365,361

-130,736

1.679

Mohonasen

Schnectady

74%

16,981,128

12,561,029

-4,420,099

0.703

Guilderland

Albany

73%

19,118,726

13,963,762

-5,154,964

1.055

Newburgh

Orange

71%

132,630,242

9,459,614

-38,034,093

0.580

Cohoes

Albany

70%

21,032,591

14,577,737

-6,454,854

0.567

Watervliet

Albany

70%

15,749,191

10,979,272

-4,769,919

0.518

Shenendehowa

Saratoga

70%

37,929,933

26,337,312

-11,592,621

0.963

South Colonie

Albany

69%

22,063,985

15,207,706

-6,856,279

1.000

Ellenville

Ulster

66%

19,206,579

12,679,152

-6,527,427

0.724

Niskayuna

Schnectady

66%

14,795,277

9,793,292

-5,001,985

1.043

Marlboro

Ulster

64%

10,254,351

6,577,901

-3,676,450

1.088

Albany

Albany

64%

90,087,476

57,258,202

-32,829,274

0.710

Bethlehem

Albany

63%

18,758,638

11,874,980

-6,883,658

0.975

North Colonie

Albany

62%

17,623,159

10,955,681

-6,667,478

1.265

Chester

Orange

61%

5,558,715

3,393,852

-2,164,863

0.907

Goshen

Orange

61%

13,872,612

8,496,935

-5,375,677

0.974

Cornwall

Orange

58%

17,721,117

10,312,161

-7,408,956

0.803

Middletown

Orange
Schenectad
y

56%

92,292,516

51,354,843

-40,937,673

0.592

54%

135,323,105

72,994,950

-62,328,155

0.384

Schenectady

12

In addition to inequitably disadvantaging high-poverty districts, the data reveals


that the States current funding structure is unlawfully disadvantaging students based on race.
School districts with higher concentrations of minority students are being systematically
underfunded. The districts that are receiving the statewide median for funding of 79 percent or
higher are predominantly districts that contain a majority of white students. Conversely, over 32
percent of the districts that are receiving between 50 and 59 percent of their promised funding
are districts for which minority students are the majority. Only 8 percent of New Yorks school
districts are predominantly non-white, yet one-third of these districts are receiving substantially
less than the average percentage of Foundation Aid to which they are entitled.

13

In short, the whiter a school districts population, the more likely the district is
receiving full or close to full funding. A minority-as-majority district is three times as likely to
be underfunded as a predominantly white district.

14

Middletown, a minority-as-majority school district in New York, has been


harmed by New Yorks racially discriminatory funding practices. Approximately 77 percent of
Middletowns student population is non-white, and Middletown receives only 56 percent of the
Foundation Aid funding to which it is entitled.

15

16

IV.

ARGUMENT
A.

The States Distribution Of Foundation Aid Disparately


Impacts New York Students On The Basis Of Race.

Title VI prohibits discrimination on the basis of race, color, or national origin in


programs and activities receiving Federal financial assistance. Specifically, Title VI provides
that:
[n]o person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.
Title VI, 601; 42 U.S.C. 2000d. The United States Supreme Court has held that Section 601
only prohibits intentional discrimination. See Guardians Assn v. Civil Serv. Commn, 463 U.S.
582 (1983). However, Section 602 authorize[s] and direct[s] federal financial assistance to
particular programs or activities to effectuate the provisions of Section 601 . . . by issuing rules,
17

regulations, or orders of general applicability. 42 U.S.C. 200d. At least 40 federal agencies


have adopted regulations that prohibit disparate-impact discrimination pursuant to this authority.
See Guardians, 463 U.S. at 619 (Marshall, J. dissenting). Department of Education regulations
state:
A recipient, in determining the types of services, financial aid, or
other benefits, or facilities which will be provided under any such
program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to
be afforded an opportunity to participate in any such program, may
not, directly or through contractual or other arrangements, utilize
criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race,
color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the
program as respect individuals of a particular race, color, or
national origin.
34 C.F.R. 100.3(b) (emphasis added). Pursuant to such regulations, all entities that receive
federal funding, including New York State and NYSED, enter into standard agreements or
provide assurances that require certification that the recipients will comply with the
implementing regulations under Title VI. Guardians, 463 U.S. 582, 642 n.13. The Supreme
Court has held that these regulations may validly prohibit practices having a disparate impact on
protected 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); New
York Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); Chicago v. Lindley, 66 F.3d
819 (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 (11th
Cir. 1985); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).

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A recipients practices have a racially discriminatory impact if they have a


disproportionate 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 result
in the provision of fewer services or benefits, or inferior services or benefits, to members of a
protected group. See Meek v. Martinez, 724 F. Supp. 888 (S.D.Fla. 1987) (Floridas use of
funding formula in distributing aid resulted in a substantially adverse disparate impact on
minorities and the elderly); see also Campaign for Fiscal Equity, Inc. v. State of New York, 86
N.Y.2d 307, 655 N.E.2d 1178 (N.Y. Ct. App. Jun 15, 1995) (prima facie case established where
allocation of educational aid had a racially disparate impact); see Robinson v. Kansas, 295 F.3d
1183 (10th Cir. 2002) (finding state and its education officials did not enjoy sovereign immunity
for claim based on Kansas state school financing system [which,] through a provision for low
enrollment weighting and local option budgets, allegedly resulted in less funding per pupil in
schools where minority students, students who were not of United States origin, and students
with 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 higher
proportions of nonwhite students received less Commonwealth treasury revenues than districts
with 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 statistical
proof. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988). However, because
statistical analysis can never scientifically prove discrimination, courts have held that a plaintiff
may establish a prima facie case of disparate impact discrimination by proffering statistical
evidence which reveals a disparity substantial enough to raise an inference of causation. EEOC
v. Joint Apprenticeship Committee of Joint Industry Bd. of Elec. Indus., 186 F.3d 110, 117 (2d

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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 promised
its school districts a minimum amount of state aid in order to ensure that each district is able to
provide basic instruction to its students. Currently, however, the likelihood that a school district
is 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 district
serves predominantly white students. The disparity between the percentage of required aid
received 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 legitimate
justification. The States maintenance of this funding structure, which has the effect of
discriminating against students on the basis of race, violates Title VI.
This inequitable distribution of aid has had a foreseeable negative impact on
predominantly minority school districts, like Middletown. The educational opportunities for
Middletowns students have been seriously impaired by the States failure to adequately fund
minority-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 placement


courses;

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 States distribution of Foundation Aid has been to create a
public education system where the whiter a school districts population, the more likely the
district is receiving full or close to the full funding it has been promised. The States failure to
meet 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 of
federal assistance, New York State is responsible for ensuring that its methods of distributing aid
do not adversely and disparately impact minorities. It has failed to do so.
B.

The States Distribution Of Foundation Aid Impermissibly


Denies Equal Educational Opportunity To New Yorks
Students Based On National Origin.

The relevant portions of the EEOA provide:


No State shall deny equal educational opportunity to an individual
on account of his or her race, color, sex, or national origin, by . . .
(f) the failure by an educational agency to take appropriate action
to overcome language barriers that impede equal participation by
its students in its instructional programs.
20 U.S.C. 1703. This provision of the EEOA was intended to remedy the linguistic
discrimination 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 speaking
students make[s] a mockery of public education, rendering classroom experiences for these
children wholly incomprehensible and in no way meaningful. Flores v. State of Arizona, 516
F.3d 1140, 1146 (9th Cir. 2008). In Flores, the District of Arizona held that Arizonas funding
for ELL students did not cover the incremental costs of ELL programming, and consequently
21

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 achieving
mastery of [the States] specified essential skills. Flores II, 172 F. Supp. 2d at 1239. The
court held that Arizona had, therefore, failed to follow through with . . . resources . . . necessary
to transform theory into reality. Id. at 1239.
Subsequently, Arizona moved for relief from the district courts judgment. The
district court denied relief. Flores v. Arizona, 480 F. Supp. 2d 1157, 1167 (D. Ariz. 2007). The
Ninth Circuit affirmed, rejecting the States argument that compliance with the standards in No
Child Left Behind satisfied the States obligations vis a vis the EEOA. Flores v. State of
Arizona, 516 F.3d 1140, 1146 (9th Cir. 2008). In affirming the denial of relief, the Ninth Circuit
reiterated 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 State
Bd. 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 program
informed 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, the
programs and practices actually used by a school system [must be] reasonably calculated to
implement effectively the educational theory adopted by the school. Id. at 1010. There must, in
other words, be sufficient practices, resources and personnel . . . to transform the theory into
reality. Id. Third, even if theory is sound and resources are adequate, the program must be
borne out by practical results. Id. The Attorney General of the United States, for or in the name

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of the United States, may institute a civil action on behalf of individuals denied equal educational
opportunities. 20 U.S.C. 1706.
In addition to being racially discriminatory, New York States inequitable
distribution of Foundation Aid discriminates against New Yorks ELL students. New York has
more than 315,000 ELLs in its public schools. Prior to New Yorks implementation of the
common core curriculum in 2012, only 11.7 percent of ELL students in grades 3 -8 were
proficient in ELA, and only 34.4 percent were proficient in math.
The results of New Yorks new common-core-aligned tests, administered at the
end of the 2012-2013 school year, revealed far greater inadequacies in ELL performance: only
3.2 percent of ELL students scored in the proficient range for ELA and only 9.8 scored in the
proficient range for math.23 New Yorks high-need districts simply do not have the resources
they need to give their ELLs even a chance of meeting the States rigorous new standards. For
example:

in the Amityville Union Free School District (92 percent non-white, 14


percent ELL, and 64 percent eligible for free or reduced price lunch), over
88 percent of students failed to achieve proficiency in Math and over 85
percent failed to achieve proficiency in ELA.

in the Freeport Union Free School District (91 percent non-white, 16


percent ELL, and 54 percent eligible for free or reduced price lunch), over
82 percent of students failed to achieve proficiency in Math and over 78
percent failed to achieve proficiency in ELA.

23

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 on
Common-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

in the Central Islip Union Free District (92 percent non-white, 26 percent
ELL, and 83 percent eligible for free or reduced price lunch), over 91
percent failed to achieve proficiency in Math and over 88 percent failed to
achieve proficiency in ELA.24

Middletowns ELL achievement numbers were similar to these high-need,


underfunded districts: 2 percent of Middletowns ELL students scored in the proficient range for
ELL, and 2 percent scored in the proficient range for math.
Despite Middletowns ardent efforts to defeat linguistic barriers, the States
failure to equitably distribute Foundation Aid has had tangible deleterious effects on
Middletowns ELLs. Like many other high-need school districts, none of Middletowns ELLs
graduated with advanced designation diplomas, the States measure of college and career
readiness, in the 2012 or 2013 school years.25 The States inequitable distribution of Foundation
Aid has created serious and insurmountable barriers to Middletowns ability to meet the needs of
its ELLs, including:

the inability to provide bilingual special education classes.

understaffing, resulting in bilingual classes with high pupil to teacher


ratios and insufficient pull-out ESL services

insufficient Academic Intervention Services

insufficient teaching materials for both ESL and content areas

The cost of ELL instruction that complies with constitutional mandates far
exceeds the only financial assistance the State provides school districts for such purposes. New
24

See https://reportcards.nysed.gov/

25

See Press Release,


http://www.oms.nysed.gov/press/GraduationRates2012OverallImproveSlightlyButStillTooLow.html, accessed
October 2013.

24

York, 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 Middletown
make meaningful academic progress, or transform theory into reality. The States recent
assessments demonstrate that low-wealth districts like Middletown simply do not have the
resources to ensure that their programs bear out practical results for their most vulnerable
students. Castaneda, 648 F.2d at 1009. New Yorks inequitable funding structure has severely
compromised Middletowns ability to provide for the needs of its non-English speaking students.
This linguistic discrimination violates the EEOA.
V.

CONCLUSION

For the above-stated reasons, the Department of Education should fully


investigate this Complaint and direct the Respondents to: (1) discontinue or remedy their
inequitable, 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 participation
in educational programs for ELL students.

25

Dated: Garden City, New York


Syracuse, New York
December 13, 2013

Respectfully submitted,
BOND, SCHOENECK & KING, PLLC
By:________________________
Howard M. Miller
Kate I. Reid
Attorneys for the Enlarged City School
District of Middletown
1399 Franklin Avenue
Garden City, New York 11530
(516) 267-6300
-andOne Lincoln Center
Syracuse, New York 13202-1355
(315) 218-8625

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