New legal challenges for state aid

On Board Online • September 23, 2013

By Cathy Woodruff
Senior writer

New York’s system for distributing school aid is about to come under renewed challenge this fall from small city school districts, including a claim of unlawful discrimination based on race.

Officials in the Schenectady City School District and Middletown Enlarged City School District are preparing a complaint, pending school board approval, to the Civil Rights Division of the U.S. Justice Department. They will ask federal officials to intervene because, they say, the way New York divides up state aid money consistently shortchanges students who are members of racial minorities.

A Justice Department finding of discrimination could trigger a hold on federal funding to New York. The threat of such a consequence could spur the Legislature to address the issue of state aid, according to Schenectady and Middletown officials.

“It’s a whole different approach in trying to get at this problem,” said Middletown Superintendent Kenneth Eastwood.

Meanwhile, a trial is expected to begin before Thanksgiving on an aid lawsuit filed by the New York State Association of Small City School Districts.  State Supreme Court Justice Eugene Devine has put the case on his calendar for Nov. 20 in Albany. A non-jury trial is expected to last for several weeks, extending into 2014.

Parents of students from eight small city districts now are plaintiffs in the action, said Robert Biggerstaff, executive director of the Association of Small City School Districts and a lead attorney on the case. The case previously was known as Hussein vs. State of New York, but the name changed to Maisto vs. the State of New York because of a change in plaintiffs since the case was filed in 2008.

The Maisto case asserts that the students’ right to a sound basic education has been denied because of chronic underfunding.

The Maisto case and the pending civil rights complaint both aim to force the state to carry through on a commitment that, in theory, was cemented with a 2006 court decision in a lawsuit brought by the Campaign for Fiscal Equity (CFE). The state Court of Appeals affirmed a state obligation to provide a “sound basic education” for all students in that case, and state lawmakers applied that ruling with a 2007 law setting out a more equitable aid formula that would deliver billions more to schools.

After making progress for two years, New York leaders froze aid in 2009 to cope with the economic downturn and then began cutting school aid by billions in 2010 and 2011 through a “Gap Elimination Adjustment.”

Middletown and Schenectady officials contend that New York’s school aid distribution is unfair to virtually all districts where larger numbers of families live in poverty, regardless of racial makeup. But the planned federal complaint will focus on race because “it’s not illegal to discriminate against poor people,” noted Schenectady Superintendent Laurence T. Spring.

People in poverty are not defined as part of a “protected class” under federal Civil Rights Law. The Justice Department’s Civil Rights Division is empowered to investigate allegations of educational discrimination based on race, national origin, gender, religion, disability or even status as an “English Language Learner,” according to the agency.

An estimated two-thirds of Schenectady students are non-white, and more than three-quarters of Middletown students are non-white. Both districts also have substantial numbers of students whose first language is not English.

Officials with the two districts calculate that they receive approximately 55 percent of the foundation aid they are entitled to under state law, while districts dominated by white students receive aid far closer to their fair share, as it was established by the 2007 law following the CFE decision.

Districts like Schenectady and Middletown, with their higher-than-average portions of minority students, are not deliberately being targeted to receive less aid, Spring said. Rather, he said he sees the depressed funding as an unintended consequence of complex state-level politics.

“I don’t believe that any person or group of persons is in that much rational control of the state aid formula,” Spring said. “I believe it’s the outcome of a lot of political wrangling.”

The superintendents are optimistic about the potential for a speedier resolution through a federal agency than has been available through the courts. Given the glacial pace of past lawsuits challenging the state aid formula, “a significant number of our students would never reap the benefit” of a victory, Eastwood said.

Reforming New York’s state aid system has long been high on advocacy agendas of NYSSBA, the Board of Regents and other education organizations.

“The innovative civil rights claim that Schenectady and Middletown are developing should remind legislators that their decisions on dividing the state aid pie have many implications for communities,” said NYSSBA Executive Director Timothy G. Kremer. “And for communities at the other end of the socio-economic spectrum, relatively small shares of state aid are viewed as critical to maintaining high-quality programs that prime students for success. The bottom line is that schools overall are underfunded, the state aid system is broken and changes are needed.”

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