UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
October 8, 1997
UNITED STATES OF AMERICA, Plaintiff, and YONKERS BRANCH - NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiff-Intervenors, against YONKERS BOARD OF EDUCATION, et al., Defendants.
The opinion of the court was delivered by: SAND
This Opinion and the Order entered this date address and resolve all of the matters relating to the Yonkers Public Schools ("YPS") submitted to this Court following the remand of this case by the Court of Appeals for the Second Circuit. See United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996).
I. Liability (Vestiges)
With respect to issues relating to State
liability for contributing to the segregation of the Yonkers Public Schools, the State sought to introduce evidence only on the issue of whether vestiges of segregation, which in 1993 this Court found to remain in the Yonkers Public School System, United States v. City of Yonkers, 833 F. Supp. 214 (S.D.N.Y. 1993) ("Vestiges Decision"), continue to be found in that system. (See Tr. Tel. Conference of 9/22/97, at 4.)
In an opinion dated August 30, 1993, we wrote:
(1) We find that vestiges of segregation remain in the Yonkers Public School system.
(2) We find that many steps are being taken to address these vestiges including teacher training programs, utilization of innovative teaching techniques devised and tested elsewhere, efforts to increase parental involvement, development of magnet school programs, and similar efforts.
(3) We find that the steps being taken in (2) above are inadequate to eradicate vestiges of segregation "root and branch" and must be expanded and implemented in a manner which of necessity will entail the expenditure of additional funds. Not only must teaching techniques and curriculum be reexamined and redesigned to meet these needs, but the physical condition of the YPS must be restored and enhanced if a desegregation program which relies primarily on voluntary selection of magnet schools is to retain its accomplishments to date and attain its ultimate goal of a truly unitary school system.
833 F. Supp. at 225.
The Court did not at that time address "any questions relating to the State's liability for the existence of these conditions nor any question relating to the relative responsibility of the City and State." Id.
Since the Vestiges Decision, issues as to the liability of the State were addressed by this Court and by the Court of Appeals which, in an opinion dated September 23, 1996, vacated our dismissal of claims against the State defendants and the U.D.C. and remanded to this Court for further proceedings. See 96 F.3d 600.
We see no need to restate the reasoning or conclusions of our Vestiges Decision, full familiarity with which we assume. But that opinion is now over four years old, changes in the demography of the Yonkers school system have occurred (most notably an accelerated influx of Hispanic students, many with limited English proficiency, and the hiring of significant numbers of new teachers), and efforts to address vestiges have been ongoing. Therefore, the question of whether vestiges of segregation still exist in the Yonkers Public School System is one which the State was entirely within its rights to raise. The Court permitted the State to conduct discovery on this question and it has now been tried to the Court.
B. The Trial
The State's claim that vestiges of segregation have been eradicated was supported by the introduction into evidence of ten depositions and the testimony of Dr. Theresa Bucci. The thrust of this evidence and of the State's claims are that gaps in achievement scores between minority and majority students may be caused by conditions other than vestiges; that the written evaluations of Yonkers teachers by their superiors do not indicate that there is widespread dissatisfaction with teacher attitudes and proficiency, that certain remedial measures are in effect and are meeting with a degree of success and that the existence of a gap between minority and majority achievement levels is not unique to Yonkers.
This last contention was based on a comparison by way of graph depicting the level of majority and minority test results in Yonkers and four other school districts in New York State. (See Trial Ex. A (Streeter Aff.).) These four other districts -- Freeport, New York City, New York City Community School districts 15 and 28 -- were selected by the State because they had overall enrollments of majority and minority students said to parallel those in Yonkers. The thrust of the State's claim was that disparities among the three racial/ethnic groups (Afro-American, Hispanic and non-minority) in terms of the proportion of students in each group who fail to meet the State Reference Point on State mandated Pupil Evaluation Program ("PEP") tests at the third and sixth grade levels was approximately the same in Yonkers and the four districts to which it was compared.
The Yonkers Board of Education ("YBE") countered these claims by updating the evidence which it had presented in the 1993 procedure to demonstrate that standard test results of majority, Black and Hispanic students conducted since 1993 showed a continuation of the gap reflecting lower minority achievement. Disproportionate suspension rates, retentions, dropouts and referrals to special education have also continued to date. As to claims that achievement results may be impacted by factors other than vestiges, the YBE noted that the State had made no effort to overcome the multiple regression analysis utilized in the 1993 proceedings which this Court found demonstrated that race is a statistically significant factor in accounting for the disparity in reading and math scores "even after factoring out other possible causes." 833 F. Supp. at 221.
Testimony introduced by the YBE also reflected the perception of Yonkers school principals and other supervisory personnel that some teachers' attitudes and expectations still too often reflect past stereotypes, e.g., some teachers calling more frequently on majority students seated in the center of the class while giving less attention to minority students.
C. Findings as to Vestiges
The parties are in disagreement with respect to which party has the burden of proof as to the continuation of vestiges. This Court has previously opined that in light of the procedural posture of this case the State bears this burden. We find, however, that it is not necessary to resolve this question because we find that the YBE has clearly demonstrated by a strong preponderance of the evidence that vestiges of segregation currently exist in the Yonkers Public School system. Although staff development programs and other remedial measures are attempting to address these problems, the evidence introduced by the YBE supports the conclusion that vestiges of segregation "root and branch" have not been eradicated.
The fact that lower achievement scores for minority students was a phenomenon present in school districts other than Yonkers was specifically recognized in our 1993 Vestiges Opinion, 833 F. Supp. at 223, and does not alter the conclusions reached in that Opinion. The State offered no evidence which would make more meaningful a comparison between Yonkers and the four other districts whose test results were cited by the State. One does not know, for example, the extent, if at all, the other districts themselves suffer the vestiges of past segregation regardless of whether or not they were subject to a court decree. One does not know what a multiple regression analysis, which this Court relied on in its 1993 Vestiges determination, would disclose if applied to the raw data proffered as to the four other districts.
In sum, we adopt and reaffirm the findings and conclusions of our Vestiges Decision. While remedial measures have been adopted on a limited scale because of funding constraints, they have not been adequate to eradicate vestiges of segregation.
Further, we find that a causal relationship exists between the conduct of the State as reflected in the findings of fact contained in our prior decision on State liability, which findings of fact were affirmed by the Court of Appeals, 96 F.3d 600, and the existence of vestiges of segregation in the YPS. The continuing vestiges of segregation in the YPS are traceable to the prior dual school system that was established and maintained in substantial part by acts or omissions of the State. The State is, therefore, liable for eliminating segregation and its vestiges in YPS and therefore must fund a remedy to accomplish that goal.
II. The EEOA Claims
Following the remand of the Court of Appeals, we have considered whether the denial of equal educational opportunities may be remedied by a method or combination of methods that does not include busing. See 96 F.3d at 621. Although the making of such a finding may present significant problems in some contexts, it is clear to this Court, writing eleven years after initial adoption of a remedy order vis-a-vis the City and YBE and having the benefit of the experience of the intervening years, that busing was and remains an essential component of the remedy order. As we noted in our Vestiges Decision the swift "smooth and peaceful" desegregation which took place in the YPS within less than a year of the issuance of the initial remedy order (Educational Improvement Plan I ("EIP I")), "was brought about by instituting a voluntary magnet school program, including procedures for school selection by parents, busing and other similar measures." 833 F. Supp. at 216. No one familiar with the history of the YPS can seriously argue that busing was not a critical component of EIP I when it was adopted in 1986 and remains so today. In fashioning a remedy order hereunder, the Court proceeded in the light of this finding.
The Court finds, pursuant to 20 U.S.C. § 1712, that the remedy called for in this Opinion and the Order seeks to impose and imposes only such remedies as are essential to correct particular demands of equal educational opportunity and equal protection of the laws. See 20 U.S.C. § 1712 (1988). Indeed, as noted herein, the EIP II provisions are specifically crafted to deal with vestiges of segregation remaining in the YPS.
We set forth in the margin the text of 20 U.S.C. § 1713
which provides that in adopting any remedy pursuant to the EEOA which may involve directly or indirectly the transportation of students, a court shall consider and make specific findings on the efficacy in correcting such denial of the enumerated remedies and calls for a prioritization of such remedies.
Although the YBE contends that § 1713 is inapplicable since it does not directly involve the transportation of students, (YBE's Proposed Findings of Fact at 59), the Court finds that it indirectly involves such transportation since it seeks to implement earlier Court orders which do call for student transportation. However, § 1713 provides no impediment to the Order entered herewith because the Court further finds that the remedies set forth in §§ 1713(a)-(e), have been utilized to the extent practicable in the YPS and that implementation of such remedies alone without the further provisions of EIP I and EIP II would not be efficacious in correcting the denials of equal educational opportunity and equal protection present in this case. Moreover, EIP II has been voluntarily proposed by the YBE, the appropriate educational agency pursuant to 20 U.S.C. § 1716. Whatever contrary views as to the voluntary nature of the YBE's plans this Court previously entertained, See 888 F. Supp. 591, 595 n.7 (S.D.N.Y. 1995), are inapposite in the present posture of these proceedings.
Recognizing that the Court of Appeals already determined that the EEOA is applicable and would subject the State to liability with respect to vestiges of segregation, 96 F.3d at 619-21, the State urges that this question
should be revisited in light of the Supreme Court's subsequent decision in City of Boerne v. P.F. Flores, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (June 25, 1997), explicating the limits of Congressional enforcement powers under § 5 of the Fourteenth Amendment, and the EEOA should be declared unconstitutional and invalid.
(State Defs.' Proposed Findings of Fact at 38.)
The State argues that Boerne stands for the proposition that Congress has not been empowered by § 5 of the Fourteenth Amendment to "making a substantive change in the governing law,"
and that the EEOA alters substantial law by doing away with the intent element which must be shown to substantiate an equal protection claim. Further, the State contends that in adopting the EEOA "Congress altered the substance of constitutional law by imposing this absolute, vicarious supervisory liability on each state without regard to the relationship established by each state itself between that state, its officials, and local educational authorities." (State Defs.' Proposed Findings of Fact at 42.)
The Court finds the claim that EEOA is unconstitutional to be without merit. Boerne involved an attempt by Congress in the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq., to overturn a Supreme Court decision relating to the tests to be applied in determining the constitutionality of generally applicable laws said to impinge on religious practices. The EEOA was adopted pursuant to a Congressional declaration of policy (§ 1701) and pursuant to Congressional finding (§ 1702) to address the subject of transportation of students in light of the failure of the courts to establish clear and uniform standards. Unlike Boerne which was designed to reverse a specific Supreme Court determination, Congress in the EEOA was deferential to the courts stating "that the provisions of this chapter are not intended to modify or diminish the authority of the courts of the United States to enforce fully the fifth and fourteenth amendments to the Constitution of the United States." 20 U.S.C. § 1702(b).
The Court finds no basis for the claim that EEOA is unconstitutional as contended by the State. (State Defs.' Proposed Findings of Fact at 46).
The State asks that the Court also revisit the determination that it is subject to suit under Title VI. 880 F. Supp. 212, 232-33. The Court of Appeals did not address this issue and we saw no reason to disturb our prior conclusions.
III. Housing Issues
There are three respects in which housing related issues impact on the presence of vestiges in the YPS and steps for their eradication.
A. School Remedy vis-a-vis the State
The facts establishing the State's knowledge that the U.D.C. was building housing in Yonkers which perpetuated and exacerbated the pattern of racial segregation in Yonkers have been fully established in prior proceedings See, e.g., 96 F.3d at 608. The interrelationship between housing and school segregation has also been adequately demonstrated. In concluding that the State is liable for vestiges of segregation in the YPS and in formulating a further school remedy order vis-a-vis the State, no further proceedings or findings are required. Indeed, the YBE advances no proposals specifically directed at housing issues.
B. Housing Remedy vis-a-vis the State
The City has filed an offer of proof seeking to introduce evidence concerning the status of the housing remedy order now in place and the need for State funding to implement the creation of integrative housing opportunities in Yonkers. The City's proposed order would call upon the U.D.C. to submit for consideration "a plan for the provision of resources to further completion of the requirements of the Housing Remedy Order." (Def. City of Yonkers' Post-Hr'g Mem. at 25.) The City agreed, however, with the suggestion of the Court that the issue of a housing remedy order directed to the State be deferred so as not to delay entry of a school remedy order. (Id.) The time exigencies with respect to a school remedy, i.e., the need for immediate action if corrective measures are to be in place for the next school year, and the issues discussed below, have led this Court to go forward with a school remedy order while briefly holding housing remedy order issues in abeyance pending further submissions by the parties.
C. Housing Remedy vis-a-vis U.D.C.
The Court of Appeals reversed the Court's dismissal of this case as against the U.D.C. holding that its conduct rendered it liable and remanded for a redetermination of whether the U.D.C.'s conduct constituted a "continuing wrong" so that the action against the U.D.C. was not barred by the statute of limitations. The NAACP, which brought the action against the U.D.C., urges this Court to find that the U.D.C. remains liable and proposes an order which would require the U.D.C. within sixty days to submit a plan "which will assist in the creation of affordable housing in areas outside those of minority concentration." (NAACP's Post-Hr'g Mem. at 15.)
With respect to items B. and C. above, the Court finds that it needs more input from the parties. Some of the issues which the Court wishes to explore, touching upon both liability and remedy, are the following:
(1.) As to the U.D.C., what was its status after 1973 and is its present status? What resources, fiscal and otherwise are available to the U.D.C. today? If a final monetary judgment is entered against the U.D.C., from what funds is the judgment paid?
(2.) As a result of years of agonized efforts there is in place a housing remedy order which is in the process of implementation. The day to day administration of this remedy order has been largely turned over, at its request, to the City with a diminishing degree of oversight by the Court appointed Housing Monitor. To what extent if any do the proponents of a housing remedy order, embodying State or U.D.C. participation, envisage a reopening of this order?
The Court will initiate a telephone conference among all of the parties as early as possible to establish a schedule for further inquiry into housing remedy issues.
A. EIP I
Questions concerning the provision of a remedy to eradicate vestiges of segregation center on two Education Improvement Plans. EIP I is embodied in this Court's initial School Remedy Order of May 13, 1986 and has been implemented by the YBE since that date with funds provided by the City, and miscellaneous State and private foundation grants. The City with the support of the NAACP and the YBE sought an order requiring the state to provide financial support sufficient to enable EIP I to be implemented fully. On June 9, 1997, adopting a recommendation of some of the parties, this Court ordered its Monitor, Dr. Joseph M. Pastore, Jr. to "report and recommend to the Court what steps, if any, need be taken to implement fully EIP I including, but not limited to, the proportion of EIP I related costs which the State defendants should bear." Dr. Pastore's Advisory Opinion on the Matter of How the Financial Burden Should be Distributed to Implement the Court-Ordered Educational Improvement Plan is annexed hereto as Appendix I.
No party sought oral argument with respect to the Monitor's Advisory Opinion but all parties filed briefs on the issues addressed therein. The State's primary objection is that:
because the evidence shows that, in part due to the generous funding voluntarily provided by the State, the provisions of EIP I have been fully implemented and the goals of that order fully realized, the controlling decisions require that this Court relinquish jurisdiction over the Education remedy.
(State's Objections to Monitor's Advisory Op. of 8/14/97, at 1.)
The claim that EIP I's goals have been fully realized is based on an overly narrow view of that Order and factual misconceptions. While EIP I placed major emphasis on the assignment of students and school district reorganization, it was not limited to the physical placement of students but also addressed steps to achieve a unitary status for the YPS. Thus, the 1993 Vestiges proceeding was not the first occasion on which the YBE and NAACP took the position that:
the placement of majority and minority students and staff in the same school buildings in numbers proximate to their incidence in the general school population, so that schools are no longer racially identifiable, is but the first step to achieving a truly unitary school system. Such a unitary school system is in place only when students, regardless of race, have similar educational opportunities and experiences.
833 F. Supp. at 216.
EIP I adopted in 1986 § K included the following:
Assurances. The Board shall establish a comprehensive staff development program which will be a component of its ongoing in-service program for teachers and administrators and will address areas such as racial attitudes, student discipline procedures, academic achievement and performance goals, teaching in a diverse racial/ethnic environment, and integration goals.
(Monitor's Proceedings YBE Ex. 1A.)
In advancing its claim that this goal of EIP I was fulfilled, the State cites the fact that the YBE report for the year 1989-90 reported that "Implementation of the Educational Improvement Plan" was one of five major components of the district's staff development and in-service programs. (State's Objections at 5.) But this contention ignores the overwhelming evidence that the district, because of lack of funding, does not have an adequate staff development program to deal with such matters as teacher's attitudes and expectations and other matters which are said to contribute significantly to lower achievement results of minority children.
The claim that EIP I's goals have already been fulfilled is rejected.
Another State objection is that EIP I has been funded entirely by the State. This issue raises the question fully addressed in the Monitor's Advisory Opinion, (App. A at 14-18), of the treatment to be accorded the State's allocation of $ 29.5 million for magnet program grants. Dr. Pastore concluded, based on the evidence presented before him, that the recent level of magnet program funding provided by the State serves in part as an equity adjustment and in part as a response to urgings by Yonkers representatives to support desegregation costs in Yonkers. (Id. at 18.) The State objects that this conclusion is based upon impermissible speculation as to legislative intent.
But the evidence before the Monitor, especially that of Claire Eatz, principal budget examiner of the New York State Division of Budget, cited by Dr. Pastore, fully supports his characterization of State magnet aid and the treatment accorded such aid in the formula which he recommends. The issue is not one of the subjective intent of the legislature but rather what the objective facts show to be the effect of the State funding, the method by which the amount of funding is determined, the lack of any assurance of continuity and of any specific relevant direction as to the application of such funding.
We have reviewed the other State objections and find them to be without merit.
We adopt and approve the Recommendations in the Advisory Opinion insofar as they apply to implementation of EIP I and proceed to a consideration of EIP II.
B. EIP II
The YBE has promulgated an Educational Improvement Plan, (EIP II Ex. 1A), adopted by the Board in September 1997. In its Foreword to the Plan, signed by the Superintendent of Schools Reginald Marra, and President of the Board of Trustees, Elaine Tsu, it is stated:
EIP II represents the best thinking of hundreds of people in our educational community on the elimination of vestiges of segregation. The plan was developed by trustees, administrators, teachers, parents, students and community representatives. To develop this plan we have sought the advise of noted educators and have evaluated research from urban centers throughout this country.
(EIP II Ex. 1A at 1.) The Plan states that it has
one major goal, which focuses on the equity of student outcomes. It is: To eliminate all vestiges of segregation in the Yonkers Public Schools (thereby eliminating gaps in achievement and other learning outcomes).
EIP II identifies specific vestiges of segregation which have previously been cited and purports to address them directly as follows:
In achieving the goal of eliminating vestiges of segregation, EIP II focuses on vestiges and the evidence of vestiges to propose specific remedy actions to remove the vestige.
1. Vestige : "Within many schools in Yonkers, there remains racial and ethnic segregation of students among various levels of courses, programs, classes and in-class grouping, which affects the quality and type of education provided to children of different racial and ethnic groups." . . . "The implementation of EIP I has not addressed or alleviated many of the conditions of inequality that were fostered by the racially dual system of education in Yonkers, such as racially disparate attitudes and expectations of teachers and administrators; teaching methods that support effective instruction primarily for middle or upper middle class white students in homogeneous classrooms; curriculum that is neither multicultural nor aligned to the goals and objectives of the desegregating school system; and a lack of adequate services for students with limited English proficiency."
Action Plan : The alignment of a curriculum, assessments and teaching methodology with State and National Standards, and access to those supports that will enable minority students to succeed in courses using high level curriculum.
Action Plan : Providing continuing professional development that will equip all teachers with the knowledge and skills needed to teach to an increasingly diverse student population with a variety of educational, language, social, and health needs. Developing appropriate time for staff development through summer seminars and classes on teaching and learning and those specific areas relevant to eliminating vestiges. Providing time and resources during the school year; for in-school staff development and development of a strong staff supervision and evaluation component to determine the effectiveness of staff development. Provide adequate and appropriate materials and equipment to each classroom.
2. Vestige : "The implementation of EIP I has not addressed or alleviated many of the conditions of inequality that were fostered by the racially dual system of education in Yonkers, such as pupil personnel services, that are particularly important to the effective education of minority children."
"The advent of desegregation has resulted in a greater need for the services of social workers and guidance counsellors. Ironically despite this greater need, the ratio of such support staff to students has decreased. Where once there was a social worker assigned to each school building, this is no longer the case."
"The implementation of EIP I itself has given rise to a number of problems that must be addressed to ensure effective education in a desegregated setting, such as the increased difficulty of obtaining parental involvement in schools that, by necessity, no longer serve populations drawn exclusively from surrounding, segregated neighborhoods."
Action Plan : The restructuring of schools to place greater focus on the needs of minority students through more individual attention to students, smaller class and school size, increased counseling and increased parent outreach to minority families.
3. Vestige : "Although EIP I has been successful to date in maintaining desegregated school enrollments, its ability to support continued voluntary desegregative movements of students within Yonkers and its ability to attract enough middle class and non minority students to provide for meaningful desegregation in the future will be seriously undermined unless the magnet school programs are fully implemented and the overall quality of education in the system is improved."
"Not only must teaching techniques and curriculum be reexamined and redesigned to meet these needs, but the physical condition of the YPS must be restored and enhanced if a desegregation program which relies primarily on voluntary selection of magnet schools is to retain its accomplishments to date and attain its ultimate goal of a truly unitary school system." (1993).
Action Plan : The court-ordered desegregation plan in Yonkers depends heavily on parental choice. Experience in communities throughout the United States demonstrates, however, that even where such programs work well, initially, follow-up, review, planning, adjustment and reinforcement are critical to achieving long-range success. EIP II includes such an effort. It is important that the district needs to further examine its magnet programs to determine those successful concepts or practices to be replicated and those to be eliminated or revised. The success of the Yonkers desegregation plan (EIP II) depends on parents' belief in the school system and its ability to educate their children to their highest level of achievement. As this is a school district of choice, parents must believe that this level of education can be achieved at each of the district's schools and that their choice is one of enhanced program, not attainment of basic skill. This will be in part accomplished through the above action plan and through the renovation and enhancement of the physical plant, but also through the evaluation of all of our programs and through ongoing two-way communication with our community.
(EIP II at 3-5.)
According to its proponents, the function of EIP II is to provide a framework for a standard based accountability for the YPS. Ramon C. Cortines, testifying for the YBE as an expert on standard based education and desegregation, stated that this technique was effectively utilized in three school districts which he had headed which were undergoing desegregation: Pasadena, San Diego and San Francisco. His testimony, together with that of Dr. Gladys Pack, chief coordinator for the YPS of EIP II, and the deposition testimony of Dr. Linda Darling-Hammond, supported the contention of the YBE that EIP II embodied the latest thinking and experience in informed educational circles of how to deal with vestiges of segregation in an urban school district.
All of the YBE's witnesses emphasized that EIP II was a broad framework which required additional planning on a school by school basis. Some of its provisions, such as development of a district wide core curriculum consistent with State and national achievement standards, will clearly require additional time and study. A school by school analysis of all aspects of EIP II will be required.
EIP II is the framework for an eight year program with the phasing in of individual schools over a five year period. The selection of which schools would be phased in and when this was to occur was in large part a function of physical conditions. EIP II calls for reduced class sizes and an increase in support staff (e.g., social workers, staff developers, etc.). Both of these programs entail space considerations. The Plan does state, however, that
during the phase-in period all schools will align their staff development and student support activities with those of EIP II to the extent possible to allow for a more coordinated plan.
(Trial Ex. 1A at 20.)
Prior to submission to the Court, the Plan was widely disseminated in Yonkers and has been the subject of various community meetings. We are told the community response has been favorable.
Superintendent Marra testified that the next step following court approval would be a 12-14 week period of intensive planning so that the individual schools would have a program to start implementing the plan in September 1998.
This planning would require the retaining of planning and engineering consultants and funds to pay teachers and administrators to come in on Saturdays and work after school. During this 12-14 week period, work would be done on curriculum and on recruitment. He estimated that it would cost $ 450,000 to start the planning for the eight schools to be phased in during the first year and that the current school budget does not contain funds available for that purpose. (Trial Tr. at 989-90.) This cost estimate was not challenged by the State.
The criticisms to EIP II expressed by the State's expert witnesses, Dr. Theresa Bucci and Jeanette Canady are principally directed to the fact that EIP II is lacking in needed detail or does not make sufficient use of helpful resource material made available by the State. Thus Dr. Bucci identified several factors which she believed were relevant to increasing student achievement.
a) Lack of ongoing daily assessment of individual students by their teachers.
b) Non-alignment of curriculum.
c) Not enough intensive exposure of bilingual students to English.
d) Development of strategies for taking tests, especially for the lower grades.
e) Dealing with student mobility.
f) Need to measure attendance and enforce attendance requirements.
(Id. at 71.)
Dr. Bucci agreed that some of these causes of student underachievement exist in the Yonkers Public Schools and are not being adequately addressed. (Id. at 72.)
But in fact EIP II contemplates dealing with all of the causes of underachievement which Dr. Bucci cited. Smaller class sizes and staff training certainly address the need for greater teacher assessment of individual students. Adoption of a district wide core curriculum will help alleviate the adverse impact of student mobility within the district. Enhancement of training for Limited English Proficiency students and enhancement of support personnel to deal with absenteeism are also directly addressed in EIP II.
Other objections to EIP II have been, we believe, adequately addressed in what has gone before. It is not the case that the YPS now have available all that is required to implement needed programs to eradicate vestiges of segregation. Where special grants have been received from private foundations which have supported specific educational enhancements, like furnishing reading aides, the results achieved have been promising. The basic premises that all children can learn and that the critical factor in evaluating a school system is the achievement levels of its students, is recognized and would be operative pursuant to EIP II.
The State's claim that EIP II calls for the YBE to do things which it would be required to do absent a history of past segregation -- e.g., meeting state wide testing levels or adoption of a curriculum -- misses the point. Although, of course, the teaching enhancements envisioned by EIP II will benefit majority as well as minority students, EIP II is directed specifically toward eradication of vestiges of segregation.
The Court finds that the EIP II plan proposed by the YBE provides the framework for an appropriate remedial plan tailored to the task of eliminating the vestiges of segregation in YPS to the extent practicable.
The Planning Process - The Next Fourteen Weeks
There is a compelling need to undertake forthwith the further development of EIP II so that implementation of the remedial measures of that plan may begin in September 1998. Indeed, it would be tragic if another school year were to go by without significant additional measures being taken to address the vestiges of segregation found in the YPS. The cost of such planning estimated by Superintendent Marra to be $ 450,000 is relatively modest when compared to other costs of this litigation. In the Court's order, entered this day, we have directed the State to participate fully in this planning process and to defray its costs.
The State has continued to avoid any meaningful involvement in the efforts to eradicate vestiges
despite the general "hands on" approach of the State Education Department with respect to other matters concerning education. In essence the State has adhered to the abstention policy fully detailed in the findings of fact set forth in our 1995 opinion (880 F. Supp. at 218-224). The State advances a number of reasons for this posture: the matter is in litigation; the YBE's settlement offer is unreasonable; vestiges do not exist; the State has no liability and adequately discharges its overall obligations by the funding grants to Yonkers, especially its magnet school grants. Thus the State has confined its role to that of an aggressive litigant, seeking to avail itself of all opportunities for delay and resisting all exhortations that, in the discharge of its obligations to the children, it take a more active and positive role.
In light of the determinations made by the Court of Appeals with respect to the liability of the State and the findings of this Court herein, it would be appropriate for the State, without prejudice to whatever rights for appellate review which it may seek to preserve, to cooperate fully with the YBE and Superintendent Marra in moving EIP II forward. Educators rather than litigators should dominate the planning process.
Having said all this, however, we recognize that the State may refuse to participate either intellectually or fiscally in this next stage of implementing EIP II. However, even if this Court's orders vis-a-vis the State are stayed by an appellate court, the planning process should go forward. As the Court stated in its Opinion of July 10, 1992 and repeated in its vestiges Opinion:
we put all parties on notice that if vestiges of segregation are found to exist and to be inadequately addressed, the Court will consider what action is appropriate and will not be limited to the relief sought by the YBE and NAACP against the State.
833 F. Supp. at 217.
In the event that State funding for the $ 450,000 planning process is not forthcoming (e.g., by virtue of an appellate court stay), such funds are to be furnished by the City of Yonkers which is of course clearly liable by virtue of prior court decisions.
The planning should be based on the assumption that the State will ultimately contribute to the costs of EIP II along the general lines set forth in Dr. Pastore's Advisory Opinion and in amounts to be determined pursuant to the provisions of the accompanying Order. Payment by the City of the entire cost of this planning process would be without prejudice to the City's right to seek refund of some or all of such funds from the State fund when whatever obstacle to State participation has been removed.
The paramount concern should be to expedite as fully and expeditiously as possible the eradication of all vestiges of segregation remaining in the YPS.
The Court has entered an Order which follows this Opinion.
Dated: New York, New York
October 8, 1997
Leonard B. Sand
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, Plaintiff, YONKERS BRANCH--NAACP, et. al., Plaintiffs-Intervenors, v. YONKERS BOARD OF EDUCATION, et. al., Defendants
Monitor's Advisory Opinion
80 Civ. 6761 (LBS)
MONITOR'S ADVISORY OPINION ON THE MATTER OF HOW THE FINANCIAL BURDEN SHOULD BE DISTRIBUTED TO IMPLEMENT THE COURT-ORDERED EDUCATIONAL IMPROVEMENT PLAN (EIP I).
For the Yonkers Board of Education and the City of Yonkers :
Raymond P. Fitzpatrick, Jr., Esq.: Attorney for the City
Lawrence Thomas, Esq.; Attorney for the YBOE
Reginald Marra; Superintendent of the Yonkers Public Schools
Frank Lutz; Executive Director of Finance for the Yonkers Public Schools
James LaPerche; Finance Commissioner for the City of Yonkers
Victor Evans; Principal, Ingraham Planning Associates
Lisa Perfetti; Senior Manager, Arthur Anderson Consulting
For the United States :
Lisa Evans, Esq.
For the NAACP:
Michael H. Sussman, Esq.
For the YFT :
John J. Naun, Esq.
Paul Janice, Esq.
For the State of New York :
Richard P. Hamilton, Esq.; Assistant Attorney General
Joel Graber, Esq.; Assistant Attorney General
Gina Cuneo; Deputy Executive of the New York State Emergency Financial Control Board for the City of Yonkers
Claire Eatz; Principal Budget Examiner, Division of the Budget for the State of New York
A hearing on the above matter was held on July 14, 16, and 17, 1997 in Yonkers, New York before Joseph M. Pastore, Jr., Court-appointed Monitor U.S. v. Yonkers. All parties were provided an opportunity to present witnesses, offer testimony and argument, and to engage cross-examination. A transcript of all proceedings was taken with copies distributed on July 29, 1997.
In the wake of the Court of Appeals decision, United States v. City of Yonkers, 93 F.3d 600 (2d Cir. 1996) and in the absence of any stay pending a ruling by the Supreme Court of the United States on the State's petition for certiorari, and in response to a motion by the City of Yonkers with the support of the NAACP and YBOE petitioning the U.S. District Court to issue an order requiring the State to provide financial relief sufficient to further the EIP I ordered by the Court in 1986. 635F. Supp. 1538, the Court, on June 9, 1997, ordered that the Monitor "report and recommend to the Court what steps, if any, need be taken to implement fully EIP I including, but not limited to, the proportion of EIP I related costs which the State Defendants should bear." The Order was specific in its direction not to consider EIP II or vestige-related costs which are currently not ordered and subject to a scheduled review by the Court.
As a result of a June 26, 1997 telephone conference with all parties, it was determined that the questions and issues before the Monitor, and in response to the Order cited above, should include:
a) What are the Court-ordered provisions of EIP I?
b) To what extent has EIP I been implemented and what is yet to be implemented?
c) What are the costs of EIP I, both funded and unfunded?
d) What are the funding sources for EIP I?
e) How shall the financial burden for implementing EIP I be distributed in the future?
Contentions of the Parties
Contentions were offered by the City, YBOE, NAACP, and the State.
Contentions of the City. The City contends the following:
(1) The City has borne, since 1986, the full cost of EIP I except to the extent that State law provides relief for certain education related expenditures such as transportation and capital improvements.
(2) The City contends that it is financially unable to fully fund the cost of EIP I. It offers as evidence:
a) The fact that the City continues to operate under the supervision of the State Emergency Financial Control Board;
b) that the City imposed taxes at its Constitutional limit in fiscal years '86, '87, and '88 and has been within approximately $ 40 million (or approximately 10% of its total budget to include education) of its tax limit in fiscal years '96 and '97 (City Exh. 1);
c) that the City has imposed annual tax increases since fiscal year 1986 ranging from 3.75% to 10.2% with an average increase of 6.3% (City Exh. 1);
d) that the City has eliminated over 200 City, non-educational positions (approximately a 10% reduction) in the past decade with 40% of those cuts falling in fiscal 1997 (City Exh. 1);
e) that the City's budgetary allocation to education has been, since 1993, in excess of all other City operating costs (City Exh. 1);
f) and, that the City's assessed valuation for tax purposes has decreased nearly $ 135 million since 1989 resulting in a nearly $ 175 million cumulative loss of taxing power (City Exh. 1).
(3) The City contends that the State has not borne an equitable share of the total cost of education in Yonkers to include the cost of EIP I and offers the following evidence to support its contention:
a) When compared to other "Big Five" city (the "Big Five" include Yonkers, Syracuse, Rochester, Buffalo, and New York City) school districts in New York State, other than New York City, Yonkers currently receives the lowest total per student aid--approximately 65% of the next lowest (Rochester) and 50% of the district with the highest total per student State aid (Buffalo), (City Exh. 2, p. 8).
b) When compared to the most comparable City school district in New York State, Syracuse (both Syracuse and Yonkers have approximately 23,000 students), Yonkers has received 58% to 76% of aid comparable to Syracuse throughout the 1985-1997 time period resulting in a total of nearly $ 400 million more State aid provided to Syracuse relative to Yonkers during that same time period (City Exh. 2, p. 1).
c) Given (3)(a) and (b) above, the City of Yonkers has had to provide approximately three (3) times the amount of aid the City of Syracuse provides to education (City Exh. 2, pp. 4 and 5), despite the comparable size of each district.
(4) The City contends that the inequities cited in (1), (2), and (3) above derive from a State aid to education funding formula which is inequitable. The City further contends that the State has acknowledged flaws in the funding formula through public statements made by the highest State officials and through an attempt, in 1993-94, to reformulate the basis for granting formula driven aid to school districts throughout the State. Such reformulation would ordinarily result in nearly $ 30 million more dollars to Yonkers, but financial constraints within the State imposed a "transition cap" on aid adjustments, thereby restricting a calculated $ 30 million aid adjustment to Yonkers to approximately $ 10 million. Thus, the City contends, the State has failed to provide approximately $ 20 million in annual aid to Yonkers Schools--aid which the State's reconstituted aid formula calls for, but which is not paid because of the State imposed transition cap (see City Exh. 3, p. 1; also 7-17 Tr., pp. 34-35 [Eatz] and 7-16 Tr., pp. 46-47 [Perfetti]).1a
Contentions of the YBOE. The YBOE contends the following:
(1) The YBOE echoes City contentions with respect to funding inequities in State aid to education. In particular, the YBOE cited the "transition cap" which limits the City to $ 10 million of the $ 30 million aid Yonkers would be eligible for under a 1993-94 revised aid formula, but for the cap. The YBOE also noted that during the period of 1988-93, State education revenue ranges to Buffalo, Rochester, Syracuse, and New York City were 66%-72%, 49%-52%, 54%-62%, and 39%-43%, respectively, while Yonkers' State education revenue ranged from 31%-37% during that same period (YBOE Exh. 15).
(2) The YBOE contends that current City and State funding is inadequate to cover the cost of State mandated educational programs and Court-Ordered EIP I programs. The YBOE noted that approximately $ 5.6 million in EIP I mandated programs are currently unfunded and therefore not implemented for lack of funding (see YBOE Exh. 3 and 7-14 Tr., pp. 172-173 [Lutz]).
(3) The YBOE contends that the direct cost of currently implemented EIP I mandates approximate $ 44 million with an additional $ 4.8 million estimated as the indirect cost of EIP I (YBOE Exh. 3).
(4) The YBOE further contends and cautions, however, that EIP I related costs are not mutually exclusive vis a vis the District's base budget and, therefore, such costs are not strictly limited to specific EIP I mandated provisions and, as such, are not easily identified (7-14 Tr. pp. 133-134 [Lutz]).
(5) The YBOE contends it requires the equivalent of 39 more classrooms or approximately two new schools costing approximately $ 25 million (exclusive of land) in order to comply with EIP I standards of equity to include sufficient space for the operation of Court-ordered magnet programs not yet fully implemented (YBOE Exhibits 10 and 11; 7-14 Tr., pp. 12-23 [V. Evans]).
(6) The YBOE contends it requires space to accommodate 700 pre-K (EIP I mandates a full day Pre-K program) children, now on a waiting list because of insufficient space, at an approximate cost of $ 15 million (exclusive of any land cost) (7-16 Tr. pp. 23-24 [V. Evans]).
(7) The YBOE contends that it is constrained, by insufficient funding, in its attempt to fully implement EIP I mandates and it joins the City's contention that an incremental $ 50 million, divided between operating and capital costs, is needed to go forward with compliance.
Contentions of the NAACP. The NAACP contends:
(1) EIP I, at times and by some, has been seen erroneously only as a re-assignment order--essentially an order designed to achieve racial balance in the Yonkers Public Schools. The NAACP contends that the Order is more than that and reaches to the incorporation of such educational initiatives as magnet programs, pre-K programs, and alternative education programs, all intended to be delivered in a setting which affords adequate physical facilities and a qualified, resourced, and dedicated staff. The NAACP contends that, for lack of funds at least, such programming, facilities, and staff have not yet been fully attained in the Yonkers Public Schools.
(2) The NAACP contends that it has argued all along that EIP I could not be funded adequately without incremental State assistance and that the failure to achieve such funding has resulted in a disproportionate burden on the taxpayers and citizens of Yonkers--many of whom are the very African-American and Hispanic/Latino families who are to benefit from the 1986 Order.
(3) The NAACP contends that the City's and State's "ability to pay" should not be an issue in this case and that both parties should be required to provide sufficient funding to implement the Court-ordered EIP I.
(4) The NAACP contends that the State should be required to fund $ 35 million of the annual operating costs of EIP I and half of the remaining capital costs of EIP I beyond the State's ordinary reimbursement, for State approved capital investment of approximately 39%.
Contentions of the State. The State contends the following:
(1) Given the fact that the Yonkers Public Schools are in compliance, and have been for some years, with the racial composition standards ordered by the Court in 1986, the State contends that EIP I is "simply done" (7-17 Tr., pp. 164-166 [Hamilton]).
(2) The State contends that the City of Yonkers does have additional taxing capacity to shoulder Court-ordered costs (State Exh. 3, p. 5 and State Exh. 6; also 7-17 Tr., pp. 76-77 [Cuneo]).
(3) The State contends that the State's formula driven aid is predicated on a longstanding principle of wealth redistribution such that the wealthier school districts receive less aid for education than poorer districts. Given personal wealth and property values in Yonkers, Yonkers is measured as a wealthier school district than the comparably sized, but poorer, Syracuse school district--hence the formula aid difference.
(4) The State contends that the State has assumed an increasing proportional share of the educational budget for the City of Yonkers since 1985-86 (State Exh. 7).
(5) The State contends that, contrary to City and YBOE representations, the State has contributed to the cost of EIP I, by providing aid not only to State mandated programs, but to Court-ordered capital improvements, transportation, and magnet programs. As for the latter, the State contends that magnet program aid to Yonkers has grown from $ 3.5 million in the year prior to the 1986 Order to $ 6 million in the first year of the Order to $ 29.5 million in 1996-97 resulting in magnet program contributions of approximately $ 220 million since the 1986 Order (State Exh. 8).
(6) The State contends that, assuming the YBOE EIP I cost estimate of $ 50-70 million dollars (or a median of $ 60 million) is correct, the State is already contributing to half of that cost by virtue of the $ 29 million in magnet aid provided during each of the fiscal years '95, '96, and '97 and thus should not be required to provide additional funding toward the cost of EIP I.
(7) The State contends that magnet aid not only supports the magnet programs integral to EIP I, but that the purpose of such magnet aid is as expressed in the New York State Division of the Budget's "Description of 1996-97 New York State School Aid Programs" (October 15, 1996) wherein it is noted that "magnet schools offer a special curriculum designed to attract students of different racial backgrounds. A total of $ 132.45 million...will be provided to 19 school districts (including $ 115.23 million to the Big Five cities)." (City Exh. 5, p. 9).
Perhaps it is important to first set aside a number of matters raised throughout the hearing which appear peripheral to the issue at hand. First among these is the contention by the State that EIP I is "done". Such a position, of course, defies the logic of the instant order calling for a determination on how the burden of EIP I costs should be distributed and would render such order moot. The Court, however, has not determined EIP I to be complete. More practically, of course, the case is such that portions of the remedy imposed in 1986 have yet to be fully implemented; there remains a continuing need to maintain and therefore fund what has been implemented; and finally there is the ongoing need to ensure that the Yonkers Public Schools can offer a quality and equitable education for all children who choose to enroll, and surely for the prevailing class in this case.
A second matter which, in a paradoxical way, is both outside and at the core of the issue at hand is whether the funding formula upon which a portion of State aid to education is derived is equitable. Aid to Yonkers does appear dramatically underfunded in relation to similarly sized districts (e.g., Syracuse receives 300% more formula aid than Yonkers). This issue, however, appears beyond the scope of the question before the Monitor; rather it is seen as a matter strictly for the State of New York and its constituents and one which should more appropriately be resolved, if need be, at the State judicial level. At the same time, this issue is clearly at hand because, while one might advise the Court to remain above the fray over issues of equitable State aid formulas, the effects of such issues fall squarely upon the instant dispute and pose a significant risk to holding hostage the effective implementation of the 1986 Order to Desegregate the Yonkers Public Schools. Thus, while fundamental issues of funding equity are beyond the reach of this Opinion, the effects of such issues cannot be ignored if they are seen to fall adversely upon the 1986 Order.
A third issue which emerged in various forms throughout the hearing is that of funding ability. This Opinion takes the position that ability to pay is not an issue--either way. While there is little question the City of Yonkers has come close to saturating its ability to cover the costs of EIP I and while it is true that the City's tax base has been eroding and while it is true the City has been witnessing a proportional shift in the allocation of resources away from City operations and to school operations, the incremental costs of currently unfunded EIP I demands estimated at $ 5 million in operating costs and $ 40 million in construction costs (independent of land), both subject to State reimbursement, are not so far beyond the City's financial reach as to threaten financial exigency. Similarly, claims of financial ability with respect to the State--to include recent public depictions of a State "awash" in a budget surplus attributable to an exuberant equity market--have no bearing upon this Opinion.
What will be addressed in this Opinion are the issues identified earlier as agreed to by the parties, notably an identification of EIP I provisions, costs, and funding patterns all leading to an opinion and recommendation as to how the future costs of EIP I should be distributed between the defendant parties, the City and State, and what role the YBOE also as a defendant party must assume to ensure the integrity of funding and, therefore, the effectiveness of the Order.
What constitutes EIP I? The matter of identifying programs, resources, services, and activities stemming directly from EIP I appears mostly clear, documented in YBOE Exhibit 3, and may be summarized to include magnet program teaching staff; a full day kindergarten program; a pre-K program, an extended day program; magnet program supervision, administration, and counseling; magnet program equipment and supplies; a public information program; staff development: a secondary school alternative education program; a research and evaluation program; transportation; and legal, compliance, and monitoring activities. In 1996-97, the YBOE reported approximately $ 44 million in direct costs for EIP I of which approximately $ 28 million was for instructional support and supervision and approximately $ 10 million in transportation. In addition, the YBOE claimed an overhead allocation of 10.9% (equivalent to the Federal standard) bringing total EIP I related operating costs to just under $ 50 million in 1996-97.
Beyond those provisions of EIP I currently implemented, YBOE Exhibit 3 documents approximately $ 5.5 million in programs and activities required by EIP I but not yet implemented to include the need for additional pre-K staffing and programming ($ 3.9 million); staff development ($ .5 million); technology ($ .6 million); and enrichment programming and staffing ($ .2 million). In addition, the need exists for the equivalent of three new schools (cited earlier) to provide space for magnet programs, pre-K program expansion, and to elevate facility standards to generally accepted levels.
Thus, the expressed provisions of the Court Ordered EIP I call for approximately $ 44 million in currently funded operating costs; $ 5.5 million in mandated, but unfunded operating costs; $ 5 million in allocated fixed costs; and $ 40 million in incremental facilities needs exclusive of land acquisition costs--and all prior to State reimbursement.
How is EIP I currently funded?2a At the threshold of developing a response to the question of how future EIP I costs should be distributed is the matter of how EIP I is funded currently. At first, the identification of who bears the current financial burden of EIP I seems obvious: given that prior to October 1996 State liability was not found to exist, the burden for EIP I must clearly have fallen to the City of Yonkers. A few conditions, however, complicate such a quick determination and are worthy of citation:
a) The State does reimburse the City for a portion of EIP I related transportation costs--though such reimbursement has fallen from 90% in 1986 to about 40% today.
b) The State does reimburse the City for capital costs related to EIP I. Such reimbursement approximates 39% of State approved capital expenditures.
c) The State claims to support the costs of magnet programs--in recent years to the extent of $ 29.5 million annually.
d) And, if one is to accept the YBOE contention that EIP I costs are not readily mutually exclusive of much of the basic education costs in the District (a contention which the Monitor has supported in prior budgetary disputes between the City and YBOE), then the State formula aid appropriation to Yonkers of approximately $ 39 million must in some way be recognized as a foundational contribution to EIP I costs in the same sense that the City's allocation to education prior to 1986 has been viewed as a base budget, adjusted over time, upon which the 1986 Order was based.
Among all the State contributions cited above, there appears to be little question that the State's reimbursement program for EIP I related transportation and capital improvements must be credited as an existing assumption of some EIP I related costs by the State. Such reimbursements would not occur, but for the Order. Some, notably the NAACP (7-11 Tr., p. 156-157), have urged that the State and City should split equally that financial burden which remains once the State reimbursement is considered. Such urging cannot be endorsed; the State must be credited fully for its reimbursement toward its share of any imposed EIP I burden. To fail to recognize such reimbursement as participation in the distribution of burden between the State and City would result in a disproportionate burden upon the State or, at best, be tantamount to suggesting (arithmetically) that if such reimbursement were more than half of the cost (as was once the case with transportation), the State and City combined would have to contribute more than 100% of the cost or the City would have to return a portion of the State reimbursement to assure, for example, a 50-50 distribution--none of which makes practical sense. The only fair position in this matter is to recognize instances of State reimbursement to the City for EIP I related transportation and capital costs as an assumption of EIP I burden by the State.
The thorny issue, of course, is whether to recognize, as the State contends, that the State is contributing $ 29.5 million to the City to support EIP I related magnet program costs. But first, one may wonder why there is such a need to labor and muse over the issue of whether the State is already contributing to EIP I costs? Is it not sufficient to begin anew, given a finding of State liability, and merely share the YBOE budget burden equally, as between the City and State, from this point forward? Surely, it is tempting to reason so. Fundamental to such reasoning is the observation that the more the question of fair distribution is tied to a prior determination of whether State aid or City budgetary allocations to Yonkers are EIP related, the more the Order will be subjected to the interests of the City or State rather than the Order, per se, and the children intended to benefit from the process. A fully funded EIP does not necessarily reduce to an effective EIP if the basic budget is not sufficiently founded to support EIP efforts. Thus, the process must begin with an acceptable total YBOE budget, including EIP costs, which the City and State must bear equally.
This Opinion, therefore, asserts with absolute confidence that the tangled tale of State aid, rendered suspect by a lack of confidence expressed openly by all levels of State, City, and YBOE leadership, cannot and therefore should not, provide a platform for determining the magnitude of State, and therefore, City burden necessary for the long-term effectiveness of the Order. While State and City funding processes should be allowed to continue, unfettered, to serve City and State purposes, such purposes should not extend to imposing impediments, intended or unintended, upon the implementation of the Order.
But, there is a short-term and immediate obligation here. That obligation is to recognize that the City, State, and YBOE have been conditioned to think, and therefore argue, in terms shadowed and shaped by State aid policy. Given the degree to which such policy formed the basis for so much of the evidence and argument in this case, a decision to ignore its weight would constitute a less than full and faithful Opinion in response to the evidence, testimony, and arguments presented. In addition and importantly, despite Monitor concern about the de facto way in which City and State budgets shape the YBOE budget (and therefore the Order), the Court may differ and prefer to follow a logic which first identifies EIP I costs solely, and in a mutually exclusive fashion, and then seeks to credit the extent to which State aid supports such costs. Thus, the relationship of current magnet aid awards, as complicated as they are to decipher in terms of their intent, must be addressed.
What, then, is the applicability of current State magnet aid awards to the Order? A surface look at the issue of whether the $ 29.5 million categorical grant for magnet programs constitutes existing State support for EIP I seems to argue that it does so. Such position is further advanced by observations that:
a) The apparent (implied) stated purpose of the magnet program grants is to support programs which seek to attract students of different racial backgrounds (City Exh. 5, p. 9).
b) The YBOE receives the grant, ultimately, by responding to a State RFP (albeit after district specific funding has been appropriated) showing how such aid would be used. In fact, a recent YBOE response to the State's RFP (YBOE Exhibit 5) does reference, though with a notable absence of detail, magnet program related use of the State magnet program grant.
c) It is general knowledge that Yonkers officials, school administrators, and State representatives have petitioned the State continually for assistance with EIP I costs and an examination of City Exh. 10 shows that Yonkers is second (by $ 19 million) only to New York City (a system about 50 times the size of Yonkers) in the amount of magnet aid received and nearly three times the amount of magnet aid received by comparably sized Syracuse. In addition, the magnitude of increase in magnet aid to Yonkers since magnet aid grants began in 1983 has exceeded all other districts in the State, thereby suggesting that discretionary funding efforts at the State level have been responsive to Yonkers--though it is admittedly difficult to penetrate the "conscience" of the State to determine exactly why Yonkers' magnet aid increases have been the highest in the State. Cited below are magnet aid growth patterns among the "Big Five" cities since 1983:
CHANGES IN "BIG FIVE" MAGNET AID AWARDS, 1983-1997
District 1983-84 Magnet Aid 1996-97 Magnet Aid Magnitude of Change
Buffalo $ 2,250,000 * $ 17,025.000 7.5 times
New York City 1,000,000 48,175.000 48 times
Rochester 1,750,000 11,000,000 6.2 times
Syracuse 750,000 11,000,000 14 times
Yonkers 500,000 29,500,000 59 times
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