BEFORE THE UNITED STATES DEPARTMENT OF EDUCATIONOFFICE 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, PLLC1399 Franklin Avenue, Suite 200 Garden City, New York 11530

Tel: (516) 267-6300- and -

One Lincoln CenterSyracuse, New York 13202-1355

(315) 218-8625Counsel for the Enlarged City School

District of Middletown

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I. INTRODUCTION

The United States Government has recognized that public school education, and

the systems by which it is financed, are critical to our Nation’s 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 Middletown’s 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

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structure has severely compromised Middletown’s 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 State’s 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 State’s 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 NYSED’s 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

York’s African American, Hispanic, and other non-white students, as well as on non-English-

speaking students. Under the current funding scheme, the more “white” a school district’s

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

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

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only 3.2 percent of New York’s 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 State’s allocation of Foundation Aid

has created a dual system of education and impeded the academic progress of New York’s

neediest children. The State’s 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 State’s current formulas for distributing educational aid

disparately impact New York’s 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;

grant any other relief it deems just and proper

II. 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-lifts-scores-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-the-language/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).

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were eligible for free or reduced price lunch.3 Middletown’s 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 Middletown’s 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 Commissioner’s 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

3 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.

5

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 Commissioner’s 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 Middletown’s 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 Middletown’s pupils with an adequate education.6 The

funding disparity has frustrated Middletown’s ability to provide the remedial services that its

ELLs require to overcome language barriers and make meaningful academic progress.

5 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 NYSED’s need/resource capacity indices measure a district’s 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.

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B. The Individual Complainants

The individual complainants are parents whose children attend Middletown’s

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 State’s 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 York’s successful Federal

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

7

Race to the Top application.8 The Commissioner is, in effect, New York State’s superintendent

of schools and reports to the Board of Regents -- effectively the State’s Board of Education.

NYSED is New York State’s education agency. NYSED holds itself out to be one of the 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 York’s education agency, was responsible for distributing these

funds to school districts in New York.

III. NEW YORK’S 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

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

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

10 U.S. Dep’t of Education, Grant Award Pick-List (Search Report), accessed October 2013.

11 Id.

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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 York’s

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.

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school districts were assessed a Deficit Reduction Assessment (“DRA”) of $2.097 billion to

close New York’s 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 State’s STAR

aid formula, which has enhanced the state aid provided to affluent districts by a considerable margin.20 Together, the Foundation Aid freezes,

NYSED’s 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 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 SchoolDistrict County

Percentage of Full Funding That District

Amount of Aid That District

Should Be

Amountof Aid

Actually

Difference Between Amount

of Aid District

Combined WealthRatio

16

? New York State Education Department, Deficit Reduction Assessment Restoration by District, available at https://stateaid.nysed.gov/budget/html_docs/dra_restoration.htm17

? Id.

18 New York State Monitoring Plan and Protocols For the State Fiscal Stabilization Education and Other Government Services Fund, available at http://usny.nysed.gov/arra/monitoring-auditing/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.

21 The effects of this inequitable distribution of state aid on low-wealth school districts have been compounded by the State’s 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/.

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Currently Receives

(Rounded) ReceivingReceived in 2012-2013

Should Be Receiving &

Amount Received(CWR)

1.0 = Avg.

Edinburg Saratoga 1404% 39,386 552,780 +513,394 2.833

Kiryas Joel Orange 637% 186,500 1,187,390 +1,000,890 3.721

Onteora Ulster 202% 3,254,929 6,567,820 +3,312,891 2.320

Roscoe 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

Local SchoolDistrict County

Percentage of Full Funding That District

Currently Receives

(Rounded)

Amount of Aid That District

Should Be Receiving

Amountof Aid

Actually Received in 2012-2013

Difference Between Amount

of Aid District Should Be

Receiving & Amount Received

Combined WealthRatio(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

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Liberty Sullivan 74% 19,096,479 14,112,859 -4,983,620 0.615

Valley-Montgomery 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 56% 92,292,516 51,354,843 -40,937,673 0.592

Schenectady Schenectady 54% 135,323,105 72,994,950 -62,328,155 0.384

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

that the State’s 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 York’s 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.

12

In short, the whiter a school district’s 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.

13

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

harmed by New York’s racially discriminatory funding practices. Approximately 77 percent of

Middletown’s student population is non-white, and Middletown receives only 56 percent of the

Foundation Aid funding to which it is entitled.

14

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IV. ARGUMENT

A. The State’s 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 Ass’n v. Civil Serv. Comm’n, 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,

16

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).

17

A recipient’s 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) (Florida’s 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

18

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 State’s 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

Middletown’s students have been seriously impaired by the State’s 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;

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insufficient physical education and extracurricular activities;

insufficient library resources;

insufficient facilities.

The practical and actual effect of the State’s distribution of Foundation Aid has been to create a

public education system where the whiter a school district’s population, the more likely the

district is receiving full or close to the full funding it has been promised. The State’s 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 State’s Distribution Of Foundation Aid Impermissibly Denies Equal Educational Opportunity To New York’s 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 Arizona’s funding

for ELL students did not cover the incremental costs of ELL programming, and consequently

that the “minimum base level for funding [ELL] programs [was] arbitrary and capricious and

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[bore] no relation to the actual funding needed to ensure that [ELL] students are achieving

mastery of [the State’s] 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 court’s judgment. The

district court denied relief. Flores v. Arizona, 480 F. Supp. 2d 1157, 1167 (D. Ariz. 2007). The

Ninth Circuit affirmed, rejecting the State’s argument that compliance with the standards in No

Child Left Behind satisfied the State’s 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

of the United States, may institute a civil action on behalf of individuals denied equal educational

opportunities. 20 U.S.C. § 1706.

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In addition to being racially discriminatory, New York State’s inequitable

distribution of Foundation Aid discriminates against New York’s ELL students. New York has

more than 315,000 ELLs in its public schools. Prior to New York’s 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 York’s 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 York’s high-need districts simply do not have the resources

they need to give their ELLs even a chance of meeting the State’s 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.

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

23 See Waldman, Scott, “Bar lifts, scores fall,” Timesunion.com, http://www.timesunion.com/local/article/Bar-lifts-scores-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-the-language/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).

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percent failed to achieve proficiency in Math and over 88 percent failed to

achieve proficiency in ELA.24

Middletown’s ELL achievement numbers were similar to these high-need,

underfunded districts: 2 percent of Middletown’s ELL students scored in the proficient range for

ELL, and 2 percent scored in the proficient range for math.

Despite Middletown’s ardent efforts to defeat linguistic barriers, the State’s

failure to equitably distribute Foundation Aid has had tangible deleterious effects on

Middletown’s ELLs. Like many other high-need school districts, none of Middletown’s ELLs

graduated with advanced designation diplomas, the State’s measure of college and career

readiness, in the 2012 or 2013 school years.25 The State’s inequitable distribution of Foundation

Aid has created serious and insurmountable barriers to Middletown’s 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

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

24 See https://reportcards.nysed.gov/

25 See Press Release, http://www.oms.nysed.gov/press/GraduationRates2012OverallImproveSlightlyButStillTooLow.html, accessed October 2013.

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make meaningful academic progress, or “transform theory into reality.” The State’s 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 York’s inequitable funding structure has severely

compromised Middletown’s 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.

Dated: Garden City, New York Respectfully submitted,Syracuse, New YorkDecember 13, 2013 BOND, SCHOENECK & KING, PLLC

By:________________________Howard M. Miller Kate I. Reid

Attorneys for the Enlarged City School District of Middletown

1399 Franklin AvenueGarden City, New York 11530(516) 267-6300

-and-

One Lincoln CenterSyracuse, New York 13202-1355(315) 218-8625

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