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June 15, 1998

UNITED STATES OF AMERICA, Plaintiff, YONKERS BRANCH -- NAACP, et al., Plaintiffs-Intervenors, -v.- YONKERS BOARD OF EDUCATION, et al., Defendants.

The opinion of the court was delivered by: SAND



 Of the many issues referred by this Court to Dr. Joseph Pastore, Jr., the Court's designated Monitor for school-related matters, all but one issue have been consensually resolved. As the Yonkers Board of Education ("YBOE") appropriately notes:

The Monitor's Advisory Opinion of May 6, 1998 ("Advisory Opinion") reflects the culmination of a remarkably successful mediation and dispute resolution process conducted by Dr. Pastore. With the exception of funding allocation issues . . . the parties with Dr. Pastore's guidance and direction, have resolved all outstanding major issues regarding implementation of EIP II pursuant to this Court's Remedy Order of October 8, 1997 . . . .

 (YBOE's Comments and Objections to Monitor's Advisory Op. of 5/6/98, at 1.)

 In his Advisory Opinion, Dr. Pastore proceeded on the premise that the City and State were equally culpable for the creation and maintenance of vestiges of segregation in the Yonkers Public Schools ("YPS"). He strove to devise a formula which would effectively resolve the allocation question for the fiscal year about to commence and to provide guidance for the years ahead while recognizing that the many variable components in the formula might necessitate periodic revision of the formula. The formula seeks to recognize and permit the independence of the basic structure of present State aid to education. Believing that the full YBOE budget was of a "holistic nature," Advisory Op. at 24, his proposed formula recognized the total YBOE budget as an influence on the maintenance of budgetary effort, see infra at 14, the ultimate effectiveness of EIP I and EIP II funding *fn1" and the ability of the City to fund the remedy equally with the State.

 All parties have raised objections to some aspects of the proposed formula and we treat their objections herein.


 The State advances the argument that as between the City and itself it is the less culpable party and should therefore bear less of a burden in financing the costs of vestige removal. The State cites examples of other state/city allocations in which it contends states more culpable than New York were required to bear far less than 50% of the costs. But superficial comparisons of other states add little to a meaningful analysis of the issues before the Court because the facts of each case differ and the role which the state plays with respect to education also differs. There is no question that under the State Constitution and in practice the New York State Department of Education played a greater role with respect to education than is the case in most states.

 Having spent countless hours during the past fifteen plus years studying the causes for the creation and maintenance of racial segregation in the Yonkers public schools and having made extensive findings of fact as to the roles of the City *fn2" and State *fn3" this Court is of the opinion that there can hardly be a more pointless debate than that over whether the City or State bears the greater responsibility for the vestiges of segregation now present in the public schools of Yonkers. The simple clearly established fact is that there would have been no segregation with respect to schools in Yonkers had the City decision-makers not acted in a racially discriminatory manner. But, had the State appropriately discharged its obligations in a timely fashion -- having both knowledge of the unlawful conditions and the power to act -- racial segregation would have been eliminated from the Yonkers public schools decades ago and there would today be no vestiges of that segregation in those schools. The conclusion that responsibility for vestiges lies equally with the City and State is, in this Court's view, unassailable and we proceed, as did Dr. Pastore, with that as an underlying premise for any allocation formula.


 The City argues that imposing upon it financial obligation which it cannot meet without significantly raising taxes would be inequitable for many reasons. Thus, the City urges that:

(1) increased taxation in Yonkers would impose burdens on the members of the class who are themselves the victims of prior discrimination;
(2) increased taxation would make it more difficult to retain in Yonkers middle class residents who might otherwise "vote with their feet" and move elsewhere compounding the task of ...

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