The NYCLU announced today that it would appeal a decision by State Court Justice Joseph C. Teresi dismissing an important school reform lawsuit. The suit, entitled New York Civil Liberties Union v. State of New York (Albany County Index No. 1778-01), rests upon a provision of the State Constitution that requires the State to provide children with “an opportunity” to receive a “sound basic education.”

In the suit, the NYCLU identifies 27 schools from 12 upstate and Long Island school districts which by virtue of inadequate resources and abysmal levels of performance must be regarded as “failing schools.” The NYCLU contends that each of these “failing schools” is so inadequate that any child assigned by economic, residential or racial circumstance to one of them is being denied an “opportunity” to “a sound basic education” and that, consequently, the State must provide resources and support to improve the conditions within these schools.

The 27 schools that are the focus of this lawsuit are desperately in need of remedial assistance. These are schools where more than 30% of the children do not possess the basic literacy or math skills to satisfy the minimal standards imposed by the State. These are schools with inadequately trained teachers, high teacher and administrative turnover, inadequate libraries, textbooks and computers; overcrowded classrooms; and decrepit facilities and buildings. Not all schools fail in the same way, but all share a critical combination of these inadequacies. Moreover, these 27 schools are symptomatic of, at least, 150 additional schools outside of New York City that share many of these characteristics of failure.

In its school-based approach toward reform, the NYCLU also asserts that because the deficiencies and sources of failure may vary from school to school the judicial remedy that the NYCLU is seeking would require state education officials to meet with local school officials and parents and community representatives as well education experts and to develop, collectively, a remedial plan tailored to each of these failing schools that the state will then be required to implement.

Justice Joseph C. Teresi rationalized the dismissal on the theory that the NYCLU and the parents and students it represented had failed to allege that state policies and practices were responsible for the deficiencies within the “failing schools.” However, NYCLU Legal Director Arthur Eisenberg, asserted that, in reaching this conclusion, “Justice Teresi misread a 1995 Court of Appeals decision and ignored the assertions in the suit that the State is constitutionally responsible for the educational environment within the schools; that State officials have known for years about the failing conditions within these schools; and that the State has failed to provide the resources and support to correct these inadequacies.”

This case represents the third significant case in which the state judiciary has needlessly adopted a narrow and constricted interpretation of the Education Article of the State Constitution and the state constitutional commitment to educational opportunity. On June 25, an intermediate appellate court in New York City rejected a suit, brought by the Campaign for Fiscal Equity under the Education Article, which sought to improve the condition of New York City schools. On December 21 of last year an intermediate appellate court in Rochester dismissed a suit, also brought under the same state constitutional provision, on behalf of the children in Rochester.

Donna Lieberman, Executive Director of the NYCLU, observed: “The NYCLU will not sit by as lower state court judges turn their back on the educational needs and constitutional rights of the children of New York. The NYCLU will appeal this decision. The NYCLU will also actively support appeals in the CFE case and has already submitted a motion to appear as amicus curiae in support of the appeal in the Rochester case.”

Mr. Eisenberg further observed: “One might understand the judiciary’s reluctance to become involved in the difficult task of school reform. But, in these three cases judicial diffidence is inappropriate for several reasons: First, the impoverished learning environments within these schools have been recognized for years and the political branches of government have failed utterly in their responsibilities toward the children of this state. Second, a 1995 New York Court of Appeals decision has recognized the strong state constitutional commitment to educational opportunity and has invited vigorous judicial enforcement of that commitment. Third, and most importantly, a significant number of school children around the state will suffer greatly as a result of the failure, by the judiciary, to enforce constitutional mandates respecting educational opportunity.”

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