NYCLU Letter To State Education Department Regarding Removal Of Roosevelt School District Board Of Ed

May 3, 2002 Commissioner Richard P. Mills Commissioner of Education The State Education Department Dear Commissioner Mills: The New York Civil Liberties Union has been informed that a hearing is to be held on May 6, 2002 on the question of whether the members of the Board of Education of the Roosevelt Union Free School District should be removed from office pursuant to §1 of Chapter 33 of the Laws of 2002. The NYCLU takes no definitive position on the question of removing the School Board. However, the controversy does raise issues of deep concern to the NYCLU that we seek to address here. First, the controversy implicates questions regarding the constitutional rights of voters to elect the representatives of their choice and the rights of elected officeholders to serve out their terms of office and the standards that should be employed, consistent with these constitutional considerations, in removing elected officials. Second, the controversy raises questions regarding the responsibility of State officials, under the State Constitution, to ensure that children are provided “an opportunity” to receive a “sound basic education” and the manner in which the State should appropriately discharge that constitutional responsibility. Third, the controversy raises questions about the intersection of race and poverty, about the racial and economic isolation experienced by the school children in the Roosevelt School District, about the impact of such isolation on educational opportunity and about the possible remedies for such isolation. Each of these matters will be addressed, in turn. The Rights of Political Participation and the Presumption against the Removal of Elected Officials In Powell v. McCormack, 395 U.S. 486 (1969), the United States Supreme Court invalidated the refusal by Congress to seat Representative Adam Clayton Powell after he had been properly elected by the voters of his congressional district. In so doing, the Court noted that “a fundamental principle of our representative democracy is … that the people should choose whom they please to govern them.” Powell, 395 U.S. at 547 (internal quotations omitted). The Supreme Court has recognized that this basic democratic principle establishes a fundamental right worthy of significant constitutional protection. Accordingly, the Court has upheld, as fundamental, the right to vote (see Dunn v. Blumstein, 405 U.S. 330 (1972)); the right to associate in support of a candidate (see Eu v. San Francisco Democratic Comm., 489 U.S. 214 (1989)); and the right to run for office (Anderson v. Celebreeze, 460 U.S. 780, 787 (1983)). And the Court has further held that laws, policies or practices that substantially curtail these fundamental rights can be upheld only if necessary to advance substantial government interests. Dunn, 405 U.S. at 343; Eu, 489 U.S. at 222. In Anderson v. Celebreeze, supra, the Court held that rights respecting political participation and democratic governance “do not lend themselves to neat separation.” Anderson, 460 U.S. at 786. It follows, therefore, as a matter of both logic and law that the constitutionally protected right of voters to choose their elected officials embraces, as well, the right of those elected officials to serve out their terms of office absent extraordinary circumstances. To conclude otherwise would debase the franchise and render the electoral process a meaningless gesture. This does not mean that the right to serve is absolute. As a matter of historical precedent and constitutional tradition, elected officials have been removed from office and can be removed. But, removal of elected officials should not be treated lightly and should only occur if necessary to advance a substantial interest. This is especially the case where, as here, the removal of school board members effects a permanent disqualification barring those removed from ever again running for elected office as school board officials. Moreover, because of rights of political participation — including the right of elected officials to complete their terms of office — constitute liberty interests, such rights cannot be abridged in the absence of due process. As a general matter, the right to an evidentiary hearing before an impartial tribunal are rudimentary elements of due process. Accordingly, the hearing that is to be held in this matter should provide the school board with an opportunity for an evidentiary hearing to resolve contested questions of fact, notwithstanding the invitation set forth in Chapter 33 of the Laws of 2002 to dispense with such a proceeding. The State’s Obligation To Provide Children With “The Opportunity” to Receive a “Sound Basic Education” In Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 631 N.Y.S.2d 565, the New York Court of Appeals interpreted Article XI § 1 of the New York Constitution and held that this provision requires that the State must provide children with “the opportunity” to receive a “sound basic education.” It is unquestionably the case that schools in the Roosevelt School District experience serious deficiencies in pedagogical resources, curricula materials and experience, as well, inadequate facilities and an impoverished learning environment so that children within that District are effectively denied the opportunity to receive a sound basic education. It is, therefore, appropriate and, indeed, necessary for the State to assume its constitutional obligations and to seek to remedy the serious deficiencies taking place within the Roosevelt School District. In the discharge of the State’s constitutional obligations, it also seems appropriate for State officials to meet with local administrators, teachers, parents and school board members to identify the sources of educational failure in connection with each of Roosevelt’s failing schools and to develop school-based remedial plans that are specifically responsive to the identified sources of failure and to implement those plans with additional resources. Section 4 (2) of the legislation enacted on April 12 (Chapter 33 of the Laws of 2002) seems appropriately directed at such a process when it directs the development of “a five-year plan to improve the educational program of the school district.” Details and implementation matter, of course. And a final assessment of this provision must await its implementation. But, the legislation must also be commended for providing additional resources for enhancing the academic programs of the school districts. However, the April 12 legislation must be faulted for appearing only to blame the School Board for the inadequate conditions and for the abysmal learning environment within the schools of the Roosevelt District. The legislation fails to acknowledge deficiencies owing to the impoverished nature of the Roosevelt community and its inadequate property-tax base. It ignores the administrative and fiscal involvement of the State in the administration of the Roosevelt schools dating back to at least 1995. Moreover, the legislation also fails to acknowledge the racial and economic isolation experienced by the children of the Roosevelt School District and the obligation of the State to rectify that situation. The Intersection of Concentrated of Poverty and Race There is a large and growing body of scholarly research showing that poverty concentration (that is, extreme concentration of impoverished students within the same school or district, viewed as an element distinct from individual students’ socio-economic status) reinforces poor academic achievement. Studies of poverty concentration grew out of earlier studies into the effect of individual and community poverty on education outcomes. The first of these studies was that developed by James Coleman in 1966, ‘Equality of Educational Opportunity’ (U.S. Department of Health, Education and Welfare). ‘The Coleman Report’ concluded that, beyond individual student status, “a school’s socioeconomic background is a strong determinant of its students’ achievement.” ‘The Coleman Report’ at 21. Indeed, dozens of studies since ‘The Coleman Report’ have concluded that concentrated poverty inevitably reinforces patterns of poor achievement on a school-wide and a district-wide basis. See Stephen J. Schellenberg, ‘Concentration of Poverty and the Ongoing Need for Title I’ in ‘Hard Work for Good Schools; Facts not Fads in Title I Reform’ (The Civil Rights Project, Harvard University 1998) (“Concentration of Poverty”) (“the link between poverty and low achievement has become an unquestioned assumption”); ‘All Together Now’ at 26 n. 9-10. One such influential report is ‘Poverty, Achievement and the Distribution of Compensatory Education Services’ (U.S. Department of Education Jan. 1986) (“Poverty, Achievement and Distribution”) prepared pursuant to a congressional mandate to assess school funding under Chapter 1. The report found that “schools with large portions of poor students were far more likely to exhibit lower average achievement scores than other schools.” Id. at 3-4. Depressed achievement is explained by “the intensity of the poverty experience,” including the concentration of poor children in school.” Id. at 6. See ‘Concentration of Poverty’ (review of interlocking studies leads to the overwhelming conclusion that the degree to which poor children are surrounded by other poor children — both in their neighborhood and in their school — has a strong effect on their achievement as their own property). All too familiarly in our public school districts, concentrated poverty coincides with racial isolation. This intersection of race and concentrated poverty is well-documented nationwide and it is certainly evident in Roosevelt. And, indeed, studies have also found that intense racial isolation, through its close association with poverty concentration, is closely linked to depressed academic achievement. See, e.g., Gary Orfield and John T. Yun, ‘Desegregation in American Schools’ (Harvard University 1999) (“Resegregation”) (“When African American and Latino students are segregated into schools where the majority of students are non-white, they are likely to find themselves in schools where poverty is concentrated.”); ‘Quality Counts’, ‘Concentrated Poverty’ at 1. Districting like that in and around Roosevelt magnifies racial isolation and reinforces a regime of separate schools and districts for whites and non-whites. The effect is detrimental not only to educational achievement, but to success in life, as minority students are both denied basic skills and likely to be excluded from the kind of social and professional networking that can be instrumental to career advancement. See generally Gary Orfield and Susan E. Eaton, ‘Dismantling Segregation’ (The New Press 1996) at 557-57, 216-218. It follows, therefore, that in seeking to improve educational outcomes in Roosevelt it may well be necessary to consider – as the Board of Regents apparently suggested — that the concentration of race and poverty within the Roosevelt School District must be addressed and that consideration should be given to a redrawing of district lines in Nassau County to achieve racial and economic balance within the region as a whole. Conclusion In sum, any decision regarding the remedial approach to the Roosevelt School District must take account of the constitutional presumption respecting the right of voters to elect the officeholders of their choice and the concomitant presumption entitling officeholders to serve out their terms. It must take account, as well, of the State’s constitutional obligation to assure that children are being provided “the opportunity” to receive a “sound basic education.” This obligation, in our view, requires the State to take a hard look at the conditions in the Roosevelt schools and to involve parents, teachers and local administrators in that remedial assessment and in the development and implementation of any remedial plan. Finally, the State’s remedial approach toward the problem of Roosevelt cannot ignore the racial isolation and concentrated poverty experienced by the children within that district. Thank you for your consideration of these matters. Respectfully, Arthur Eisenberg Legal Director New York Civil Liberties Union