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United States v. State

March 22, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THE STATE OF NEW YORK; THE NEW YORK STATE BOARD OF ELECTIONS; STANLEY L. ZALEN, CO-EXECUTIVE (NAM/DEP) DIRECTOR OF THE NEW YORK STATE BOARD OF ELECTIONS; THE UNIVERSITY OF THE STATE OF NEW YORK; THE NEW YORK STATE EDUCATION DEPARTMENT; RICHARD P. MILLS, PRESIDENT OF THE UNIVERSITY OF THE STATE OF NEW YORK AND COMMISSIONER OF THE NEW YORK STATE EDUCATION DEPARTMENT; THE STATE UNIVERSITY OF NEW YORK; AND THE CITY UNIVERSITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

The United States has sued the State of New York, various appointed State officials, the New York State Board of Elections ("SBOE"), the University of the State of New York, the New York State Education Department ("NYSED"), the State University of New York ("SUNY") and the City University of New York ("CUNY") alleging violations of the National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C. 1973gg, et seq.. The NVRA requires each state to "designate agencies for the registration of voters in elections for Federal office[,]" 42 U.S.C. § 1973gg-5(a)(1), and requires specifically that "all offices in the state that provide State-funded programs primarily engaged in providing services to persons with disabilities" be so designated.

42 U.S.C. § 1973gg-5(a)(2)(B). Plaintiff alleges that defendants have violated and continue to violate NVRA by failing to designate disabled student services ("DSS") offices on the campuses of state-funded colleges and universities in addition to locally operated community colleges which are part of the SUNY and CUNY systems as mandatory voter registration offices within the meaning of 42 U.S.C. § 1973gg-5(a)(2)(B).*fn1 The complaint seeks declaratory and injunctive relief. Presently before the Court is the United States' motion for summary judgment. The State defendants oppose the requested relief.

II. RELEVANT FACTS

The undisputed relevant facts before Court are as follows: SUNY has campuses across the State. While thirty-four campuses are fully State-operated, the other 30 are community colleges, sponsored by local governments (usually counties) under SUNY's general supervision. SUNY's State-operated campuses derive almost 40 percent of their income from direct State appropriations; the balance is from tuition and fees, Federal funds, and other sources. Community colleges that are part of the "SUNY system" are funded by sharing expenditures among the State, the local government sponsor, and tuition and fees. Under that system, they derive 30 to 40 percent of their operating income from direct State appropriations. Normally,

State aid may not exceed about 40 percent of operating income and tuition revenue may not exceed one-third of operating income; the local sponsor provides the remainder. Each community college has its own nine-member board of trustees. The local sponsor appoints five members and the Governor, four.

SUNY operates under rules and regulations promulgated by its Board. See N.Y. Educ. Law § 355. SUNY's Board of Trustees is responsible for supervising and coordinating "state-aided programs" in certain institutions providing higher education in New York; including community colleges which are part of the SUNY system. N.Y. Educ. Law §§ 355(b), 358. SUNY's Board is responsible for approving the establishment of community colleges, among others, in conformance with the master plan; the provision of standards and regulations covering the organization and operation of their programs, courses and curricula, financing arrangements, state financial assistance, tuition charges and fees, and such other matters as may be involved in the operation of such colleges. N.Y. Educ. Law § 355(c).

CUNY is located in New York City. CUNY has 13 senior colleges and six community colleges. See N.Y. Educ. Law § 6202; http://web.cuny.edu/about/cunylocationshoots/view-by-college.html (listing CUNY institutions). CUNY senior colleges include: Baruch College, Brooklyn College, The City College, Hunter College, John Jay College of Criminal Justice, Lehman College, Medgar Evers College, New York City College of Technology, Queens College, College of Staten Island, York College, The Graduate Center, CUNY School of Law, The CUNY Graduate School of Journalism. See N.Y. Educ. Law § 6202. CUNY opened a new senior college, the "Graduate School of Journalism," in 2006. CUNY's six community colleges are: CUNY Borough of Manhattan Community College ("BMCC"), Bronx Community College, Hostos Community College, Kingsborough Community College, LaGuardia Community College, Queensborough Community College. N.Y. Educ. Law § 6202. CUNY's community colleges do not have separate boards of trustees. Nearly 60 percent of the funding of CUNY's senior colleges is provided by State appropriations; the balance is from tuition and fees and Federal and local funds. CUNY's community colleges are funded under the same system that applies to SUNY's community colleges. They derive almost 35 percent of their operating income from direct State appropriations.

Every SUNY state-operated university and college operates a DSS office. Every community college that is part of the SUNY system operates a DSS office. Every CUNY college operates a DSS office. There are over 100 DSS offices operated on CUNY and SUNY campuses. Many SUNY and CUNY universities and colleges design, publish, and distribute handbooks informing students about campus DSS office services and the procedures to be employed to obtain them. DSS offices at SUNY campuses seek to make SUNY activities and facilities "accessible to individuals with disabilities[.]" Each SUNY and CUNY DSS office is staffed with one or more employees to serve students with disabilities, including a disability coordinator. The term "disability coordinator" refers to the college employee who is primarily responsible for coordinating the disability services provided by the college, however named. The goal of providing disability services at SUNY and CUNY campuses is to make "higher education accessible to students with disabilities by removing architectural barriers and providing the programs and support services necessary for them to benefit from the instruction and resources of the University." Over 20,000 SUNY students are "individuals with some kind of disability." CUNY currently enrolls more than 8,000 students who identify themselves as having a disability. In the past decade, the number of students with disabilities attending CUNY has more than tripled.

DSS offices at SUNY's 34 State-operated campuses provide a range of services to students with disabilities including, but not limited to: information and referral, campus accessibility tours, personal orientation to campus, recruitment of aides, note takers, interpreters, readers, tapers, scholarship and award referrals, advocacy with campus and community agencies, accessible housing information, test taking accommodations, tutoring, training about disability and related issues, information about adaptive equipment, liaison with local, state and federal disability agencies, assistance with advisement and registration, personal and academic counseling, parking issues, peer counseling, employment assistance and a host of other individualized services, including alternative testing service programs (note-takers, assistive technology and adaptive equipment, extended exam time, private rooms, readers to dictate exams orally, scribes to record answers, and conversions of exams into large print or Braille). In addition, virtually all DSS offices provide educational counseling for students with disabilities.

The New York State Board of Elections's ("SBOE") Annual Report for 2006 states that pursuant to its NVRA agency-based registration program, SBOE has designated DSS offices at SUNY and CUNY campuses as among those "state agencies that provide programs primarily engaged in providing services to people with disabilities." SBOE's Annual Report for 2006 states that in addition to the "programs and support services" offered students with disabilities by CUNY campuses, CUNY also provides "Special Programs for Students with disabilities or Individuals at CUNY" at certain campuses open to all CUNY students and/or the community at large. CUNY's "special programs" for students with disabilities include: Baruch College Computer Center for the Visually Impaired, Project Happy at Hunter College, Program for Deaf and Hard of Hearing Students at Hunter College, Program for Deaf Adults at Laguardia Community College, Programs for Deaf and Hard of Hearing Students at New York City Technical College ("NYCTC"), Resource Center for Deaf and Hard of Hearing Students at the College of State Island, Queens College Homebound Program, The External Education Program for the Homebound at Queensborough Community College. CUNY also provides a Computer Assistive Technology Program to meet technology needs of students with disabilities at all CUNY colleges.

Each community college that is part of the SUNY system provides disability service "programs" to students with disabilities. In New York, "remediation programs" include programs providing services for students with disabilities.*fn2 Congress has also used the term "program" in enacting disability-related statutes and administrative regulations.*fn3

The State of New York provides funding to all 64 SUNY State-operated and community college campuses. See N.Y. Educ. Law §§ 352, 358, and 6304. The State of New York provides funding to all CUNY campuses. See N.Y. Educ. Law §§ 6221 and 6304. New York State law sets forth the funding mechanism for SUNY's State-operated campuses. See N.Y. Educ Law §§ 352, 358. Funds provided by New York State to SUNY State-operated campuses support the campuses' general operating budgets. See N.Y. Educ Law § 352. SUNY's Board of Trustees approves the general operating budgets of SUNY State-operated colleges. See N.Y. Educ. Law § 355(4)(a). SUNY's Board reviews and coordinates budgets and appropriation requests for all State-operated institutions. See N.Y. Educ. Law § 355(4)(a). The State Budget Director determines the amount of funds available to SUNY from the aggregate appropriations. See N.Y. Educ. Law § 355(4)(b). State law requires SUNY's Board to report annually to the State on issues such as operations, revenues, and expenditures. See N.Y. Educ. Law § 359(1). State law requires SUNY's Board to provide bi-monthly reports to the Chairs of the Senate Finance Committee and the Assembly Ways and Means Committee and the State Director of the Budget regarding revenue and expenditures. See N.Y. Educ. Law § 359(2). State law requires SUNY's Board to submit an annual financial statement audited by an independent certified public accountant to the State Legislature, the Governor, and the State Comptroller. See N.Y. Educ. Law§ 359(3). State law requires SUNY to provide quarterly breakdowns of all fund transfers between programs to the Chair of the State Senate Finance Committee, the State Assembly Ways and Means Committee, the State Comptroller, and the State Director of the Budget. See N.Y. Educ. Law § 355(4)(c)(7). The State Comptroller has review authority over SUNY's books and accounts. See N.Y. Educ. Law § 355(12). According to "The SUNY Compact: 2008-09 Budget Request" ("SUNY 2008-09 Budget Request"), for fiscal year 2007-08, State taxpayer support for SUNY State-operated campuses and University-wide programs equaled $1,172,254,000.

State law determines the manner that community colleges which are part of the SUNY system are funded. See N.Y. Educ. Law § 6304. State law requires the State to fund between 33 and 40% of a community college's operating budget. See N.Y. Educ. Law § 6304. Under State law, the remainder of community college budgets comes from local sponsorship and tuition. See N.Y. Educ. Law § 6304(1)(c) and (d). State law requires that master plans, standards, and regulations prescribed by SUNY's Board must include provisions for financing the operating costs of community colleges which are part of the SUNY system. See N.Y. Educ. Law § 6304. State law requires SUNY's Board to report annually to the Governor and Legislature regarding, among other things, any recommended changes in the community college financing formula. See N.Y. Educ. Law § 6304(1)(b)(iii). Under State law, SUNY's Board is responsible for approving community college budgets. See N.Y. Educ. Law at § 6306(2); 8 N.Y.C.R.R. 600.2. Under State law, SUNY's Board is empowered to take "appropriate action relative to" community college budget requests. 8 N.Y.C.R.R. 602.3(c). SUNY's Board has, on occasion, rejected community college budgets. SUNY's Board may request periodic reports to ensure that community college plans are being implemented. See N.Y. Educ. Law § 6304(1)(a)(iv). SUNY's Board promulgates regulations governing the administration of community colleges, including schedules and formats for the preparation and submission of community college budgets to the SUNY Board. See N.Y. Educ. Law § 6304(1)(b)(iv).

Each community college that is part of the SUNY system must report to SUNY each year on all aspects of its budget, including "services" provided to "handicapped students." New York State and its agents promulgate directives applicable to, and binding on, community colleges that are part of the SUNY system regarding contributions to employee retirement programs. New York State and its agents promulgate directives applicable to, and binding on, community colleges regarding the procedures and format for reporting certain financial information. According to SUNY's 2008-09 Budget Request, for fiscal year 2007-08, State taxpayer support for community colleges that are part of the SUNY system equaled $444,284,000.

CUNY's Board of Trustees ("CUNY's Board") governs all of CUNY's "educational units," including its community colleges. N.Y. Educ. Law § 6204(1). CUNY's Board acts under the University's "general control." Bd. of Higher Ed. of City of New York v. Cole, 31 N.Y.S.2d 176, 177 (N.Y. App. Div. 3d Dept. 1941). Under New York law, CUNY submits a long-range plan to the University every four years. See N.Y. Educ. Law § 6206(3)(a). The University (and the Governor) must approve CUNY's long-range plan, and once approved, that plan "guide[s] and determine[s] the development, organization and coordination of the city university." See N.Y. Educ. Law § 6206(3)(b). State law requires CUNY's Chancellor to propose an annual budget and, once approved by CUNY's Board, to submit that proposed budget to the Governor, the State Director of the Budget, the Senate Finance Committee, and the Assembly Ways and Means Committee. See N.Y. Educ. Law § 6230(2). No funds appropriated by the State may be spent until the State's Director of the Budget has presented the State Comptroller, the State Chair of the Senate Finance Committee, and the State Chair of the Assembly Ways and Means Committee with a certificate of aggregate funds available pursuant to State finance law. See N.Y. Educ. Law § 6221(A)(1). The State Director of the Budget may require CUNY senior colleges to conform to State statutory requirements, rules and administrative procedures regarding fiscal and budgetary matters. See N.Y. Educ. Law § 6221(A)(6).

In 1982, New York State assumed full financial responsibility for CUNY's senior college operations from New York City. Although New York City pre-finances CUNY's senior college operating costs, the State of New York reimburses the City of New York for 100% of the operating cost of the approved programs and services of CUNY senior colleges. According to "The City University of New York 2008-2009 State Adopted Budget", dated April 11, 2008, New York State taxpayer support in fiscal year 2007-08 for CUNY Senior College programs exceeded $1,000,000,000. In conjunction with the City of New York, the State also funds CUNY's community colleges. CUNY community colleges are funded from three sources: New York State, New York City, and tuition revenue. According to CUNY's 2008-2009 State Executive Budget and City Preliminary Budget Recommendations, in fiscal year 2007-08, New York State appropriated about $173,000,000 for CUNY community college programs and services. CUNY's community colleges derive almost 35 percent of their operating income from direct State appropriations. CUNY community college budgets must be approved by the State Budget Director. N.Y. Educ. Law §§ 6229(2), 6304(1)(b).

SUNY State-operated campuses' general operating budgets finance services provided by their DSS offices. In most cases, SUNY State-operated DSS office budgets are supplemented directly by money allocated by SUNY from funds controlled by SUNY.*fn4 DSS office services provided at SUNY State-operated campuses are funded predominantly with money appropriated by the State pursuant to a funding plan established by State law. See N.Y. Educ. Law § 352, 358. According to SUNY's 2008-09 Budget Request, New York State provided approximately $1.17 billion in adjusted State tax dollar support for SUNY's State-operated campuses and University-wide programs for the 2007-08 academic year.

Disability services offered at the community college campuses which are part of the SUNY system are funded in part by the State of New York. Most community college DSS budgets are funded solely from community college general operating budgets. The Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"), located within the New York State Education Department, and the New York State Commission for the Blind and Visually Handicapped also provide direct funding for disability services programs at some community colleges that are part of the SUNY system.

Disability services offered at each CUNY college campus are funded wholly or in part by the State of New York. The State of New York provides direct funding for all Services for Students with Disabilities at CUNY Senior Colleges. The State of New York provides direct funding for all services for students with disabilities at CUNY community colleges. For each fiscal year from 1998-99 through 2003-04, the State of New York provided $2,128,000 to fund CUNY Services for Students with Disabilities. CUNY Services for Students with Disabilities Budget Allocations. For each of fiscal year from 1998-99 through 2002-03, the City of New York provided $350,000 to fund CUNY Services for Students with Disabilities; for fiscal year 2003-04, the City of New York provided $575,500 to fund CUNY Services for Students with Disabilities. Funds used to establish and maintain DSS offices at all CUNY campuses are allocated from budgets that have been submitted to and approved by the University of the State of New York.

To receive services from SUNY State-operated DSS offices, students must apply for such services. To receive disability services offered by DSS offices at community colleges that are part of the SUNY system, students must apply for such services. Generally, students must apply in person for disability services and the DSS offices conduct in-person assessments to ensure the appropriate accommodation of individual needs. Students are generally required to submit a written application form to apply for disability services provided at SUNY and CUNY DSS offices. Applicants for disability services at all SUNY and CUNY campuses must provide written proof of one or more disabilities. Students applying for disability services are denied such services if they fail to meet the qualifying standards. Students who are denied DSS office services are offered an opportunity to appeal the denial of disability services.

Pursuant to its NVRA responsibilities, New York State has designated as voter registration agencies hundreds of county, municipal, and private offices throughout the State which may serve students or other citizens who are disabled.*fn5 However, the State of New York has not designated any DSS office at any public university, college campus or community college as a mandatory voter registration office. The United States filed the complaint in this case on April 15, 2004. Thereafter, ...


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