Campaign for Fiscal Equity, Inc. v. State
AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
CAMPAIGN FOR FISCAL EQUITY, INC., et al., Appellants,
v.
STATE OF NEW YORK et al., Respondents.
Court of Appeals of the State of New York.
*894 Simpson Thacher & Bartlett, New York City (Joseph F. Wayland, David E. Massengill, William T. Russell, Jr., Jonathan K. Youngwood, Daniel H. Tabak, Elaine M. Divelbliss, Nihara K. Choudhri, Jason S. Stone and Jill L. Goldberg of counsel), and Michael A. Rebell Associates (Michael A. Rebell, Molly A. *895 Hunter and Deborah A. Widiss of counsel), for appellants.
Eliot Spitzer, Attorney General, Albany (Daniel Smirlock, Caitlin J. Halligan, Denise A. Hartman, Melanie L. Oxhorn, Jean Lin, Deon Nossel and Robert M. Blum of counsel), for respondents.
*896 Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella and Leonard Koerner of counsel), for City of New York and others, amici curiae.
*897 Arthur N. Eisenberg, New York City, Christopher Dunn and Donald Shaffer for New York Civil Liberties Union, amicus curiae.
DeGraff, Foy, Holt-Harris & Kunz, LLP, Albany (Robert E. Biggerstaff and Amy Quandt of counsel), for New York State Association of Small City School Districts, Inc., amicus curiae.
*898 DeGraff, Foy, Holt-Harris & Kunz, LLP, Albany (Robert E. Biggerstaff and Amy Quandt of counsel), for New York State Coalition for 853 Schools, Inc., amicus curiae.
*899 Denise C. Morgan, New York City, for Black, Puerto Rican and Hispanic Legislative Caucus and others, amici curiae.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Roberta A. Kaplan, Daniel R. Garodnick and David W. Wang of counsel), for Partnership for New York City, Inc., amicus curiae.
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse (Benjamin J. Ferrara and Norman H. Gross of counsel), for Midstate School Finance Consortium, amicus curiae.
Betsey Boardman Swan, Menands, for League of Women Voters of New York State, Inc., amicus curiae.
*900 Michael J. Looby, Rochester, and Harter, Secrest & Emery LLP (Carol E. Heckman and Carol L. O'Keefe of counsel), for Rochester City School District, amicus curiae.
Stroock & Stroock & Lavan LLP, New York City (Alan M. Klinger and Adam S. Grace of counsel), and Carol L. Gerstl for United Federation of Teachers, amicus curiae.
Davis Polk & Wardwell, New York City (Sharon Katz, Thomas Childs, Aisha Christian-Royall, Monica Lamb, Tyson Pratcher and David B. Toscano of counsel), for Alliance for Quality Education and others, amici curiae.
*901 Hogan and Hartson, L.L.P., New York City (Adam J. Heft of counsel), and Patricia A. Brannan, Washington, D.C., for Council of the Great City Schools, amicus curiae.
Jay Worona, Latham, and Pilar Sokol for New York State School Boards Association, Inc., and another, amici curiae.
Judges SMITH, CIPARICK and ROSENBLATT concur with Chief Judge KAYE; Judge SMITH concurs in a separate concurring opinion; Judge READ dissents in another opinion; Judge GRAFFEO taking no part.
OPINION OF THE COURT
Chief Judge KAYE.
We begin with a unanimous recognition of the importance of education in our democracy. The fundamental value of education is embedded in the Education Article of the New York State Constitution by this simple sentence: "The legislature shall provide for the maintenance and support of a system of *902 free common schools, wherein all the children of this state may be educated" (NY Const, art XI, § 1). Plaintiffs claim that the State has violated this mandate by establishing an education financing system that fails to afford New York City's public schoolchildren the opportunity guaranteed by the Constitution. Plaintiffs additionally claim that the State's method of school funding in New York City violates their rights under United States Department of Education regulations pursuant to title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq.; 34 CFR 100.3 [b] [2]).
This case does not arrive before us on a blank slate. On June 15, 1995—precisely eight years ago—we denied the State's motion to dismiss plaintiffs' claims, thereby resolving three issues of law that now become the starting point for our decision (Campaign for Fiscal Equity v State of New York, 86 NY2d 307 [1995] [CFE]).
First, echoing Board of Educ., Levittown Union Free School Dist. v Nyquist (57 NY2d 27 [1982] [Levittown]), in CFE we recognized that by mandating a school system "wherein all the children of this state may be educated," the State has obligated itself constitutionally to ensure the availability of a "sound basic education" to all its children. (86 NY2d at 314.) Second, we made clear that this Court is responsible for adjudicating the nature of that duty, and we provided a template, or outline, of what is encompassed within a sound basic education. And third, we concluded from the pleadings that plaintiffs had alleged facts that, if proved, would constitute a violation of the State's constitutional duty as well as the federal regulations. The actual quality of the educational opportunity in New York City, the correlation between the State's funding system and any failure to fulfill the constitutional mandate, and any justification for claimed discriminatory practices involve fact questions. For that reason, we remitted the matter to the trial court for development of the record. Extensive discovery ensued. Trial commenced on October 12, 1999 and the last witness left the stand seven months later, on May 15, 2000.
Based on the testimony of 72 witnesses and on 4,300 exhibits, the trial court on January 9, 2001 determined that the State over many years had consistently violated the Education Article of the Constitution. In keeping with our directive, the trial court first fleshed out the template for a sound basic education that we had outlined in our earlier consideration of the issue. To determine whether the State actually satisfied that standard the court then reviewed the various necessary *903 instructional "inputs" we had identified, and concluded that in most of these the New York City schools were deficient. The trial court further held that the "outputs"—test results and graduation rates—likewise reflected systemic failure and that the State's actions were a substantial cause of the constitutional violation. Finally, the court found a violation of title VI, and directed defendants to put in place systemic reforms.
A divided Appellate Division reversed, on the law and facts. The majority rejected the trial court's definition of a sound basic education, as well as the bulk of Supreme Court's findings of fact concerning inputs, outputs and causation. Lastly—and on this point the panel was united—the Appellate Division concluded that plaintiffs' title VI claim failed in light of Alexander v Sandoval (532 US 275 [2001]), which postdated the trial court's decision. Plaintiffs appealed to us as of right on constitutional grounds.
Plaintiffs' appeal presents various questions of law, but one is paramount: whether the trial court correctly defined a sound basic education. Further—in light of the Appellate Division's express and implicit substitution of its findings of fact for those of the trial court regarding the inputs, outputs and causation—we must determine which court's findings more nearly comport with the weight of the credible evidence (see CPLR 5501 [b]). We now modify, affirming for reasons stated by the Appellate Division so much of the decision as dismissed plaintiffs' title VI claim,[1] and otherwise reversing the Appellate Division's order (see, by contrast, Paynter v State of New York, 100 NY2d 434 [2003] [decided today]).
I. Overview
At the time of trial, the New York City public school system comprised nearly 1,200 schools serving 1.1 million children and employing a staff of over 135,000, including 78,000 teachers (see generally 187 Misc 2d 1, 19-23 [2001]; 295 AD2d 1, 5-6 [2002]). Some 84% of City schoolchildren were racial minorities; *904 80% were born outside the United States; and 16% were classified as Limited English Proficient (LEP—persons who speak little or no English)—most of the state's students in each of these categories. Upwards of 73% were eligible for the federal free or reduced price lunch program; 442,000 City schoolchildren came from families receiving Aid to Families with Dependent Children; and 135,000 were enrolled in special education programs.
The New York City public school system was and is supervised by the Board of Education and its Chancellor (see Education Law § 2590-b [1]; §§ 2590-g, 2590-h).[2] The system is divided into 32 geographically-based community school districts to provide elementary and middle school education; six geographically-based high school districts; and four nongeographical districts. At the time of trial, elected community school boards supervised the community school districts, and had done so since 1969. Statewide, oversight of the public school system is vested in the Regents of the University of the State of New York (see NY Const, art XI, § 2; Education Law § 207). The State Education Department (SED) and Commissioner of Education supervise and manage the State's public schools, promulgating regulations and determining teaching standards and curricula, among other things.
Neither the Regents nor the SED is responsible, however, for the day-to-day operation of the schools or for their funding. Rather, a combination of local, state and federal sources generates school funding. Almost half of the state aid component consists of operating aid, which is allocated using a complex statutory formula that apportions various categories of aid based on a district's combined wealth ratio—which measures its ability to generate revenue—and student attendance (see Education Law § 3602). The statute contains extensive prescriptions regarding how districts may use funds, and it is perhaps the proliferation of highly specific aid categories that most differentiates the current section 3602 from its shorter, simpler predecessors (see e.g. L 1962, ch 657, § 3).
Every year, pursuant to Education Law § 215-a, the Board of Regents and the SED submit a report to the Governor and Legislature on the educational status of the State's schools. *905 The most recent of these "655 Reports" at the time of trial— that of April 1999—provides a comprehensive statistical view of the funding system as of the 1996-1997 school year, the last year for which the record provides such a complete picture. That year, statewide, the State provided 39.9% of all public school funding—$10.4 billion out of a total of $26 billion— while districts provided 56% and the federal government four percent. These figures represented an investment of $9,321 per pupil, $3,714 of it by the State. Per-pupil expenditures in the New York City public schools, at $8,171, were lower than in three quarters of the State's districts, including all the other "large city" districts, as classified by the SED. The State's dollar contribution to this figure was also lower, at $3,562, than its average contribution to other districts; and the City's, at about $4,000, was likewise lower than the average local contribution in other districts.
II. The Standard
In CFE we equated a sound basic education with "the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury" (86 NY2d at 316). We thus indicated that a sound basic education conveys not merely skills, but skills fashioned to meet a practical goal: meaningful civic participation in contemporary society. This purposive orientation for schooling has been at the core of the Education Article since its enactment in 1894. As the Committee on Education reported at the time, the "public problems confronting the rising generation will demand accurate knowledge and the highest development of reasoning power more than ever before * * *" (2 Documents of 1894 NY Constitutional Convention No. 62, at 4).
In keeping with this core constitutional purpose and our direction further to develop the template, the trial court took evidence on what the "rising generation" needs in order to function productively as civic participants, concluding that this preparation should be measured with reference to the demands of modern society and include some preparation for employment (187 Misc 2d at 16). The Appellate Division also recognized that our "term `function productively' does imply employment" (295 AD2d at 8), and we agree with both parties and both lower courts that an employment component was implicit in the standard we outlined in CFE. Nevertheless, the parties dispute the nature of the employment—and of civic participation *906 generally—for which a sound basic education should prepare children, as well as the nature of the instruction necessary to achieve such preparation. We address each of these areas of dispute in turn.
First, as to employment, the Appellate Division concluded that the trial court "went too far" in construing the ability to "function productively" as the ability to obtain "competitive employment" or, indeed, as anything more than "the ability to get a job, and support oneself, and thereby not be a charge on the public fisc" (295 AD2d at 8). More is required. While a sound basic education need only prepare students to compete for jobs that enable them to support themselves, the record establishes that for this purpose a high school level education is now all but indispensable. As plaintiffs' education and economics expert Dr. Henry Levin testified, manufacturing jobs are becoming more scarce in New York and service sector jobs require a higher level of knowledge, skill in communication and the use of information, and the capacity to continue to learn over a lifetime. The record showed that employers who offer entry-level jobs that do not require college increasingly expect applicants to have had instruction that imparts these abilities, if not a specific credential.
Second, as to other aspects of civic participation, the difference between the trial court and the Appellate Division centers on our statement in CFE that a sound basic education should leave students "capable of voting and serving on a jury" (86 NY2d at 316). The State's expert on educational psychology, Dr. Herbert Walberg, testified that pattern jury instructions and newspaper articles typically feature vocabulary and sentence length comparable to those of texts eighth-graders are expected to be able to read. Based on this testimony, the Appellate Division concluded that the skills necessary for civic participation are imparted between eighth and ninth grades (295 AD2d at 8). The trial court, by contrast, concluded that productive citizenship "means more than just being qualified to vote or serve as a juror, but to do so capably and knowledgeably" (187 Misc 2d at 14 [emphasis in original])—to have skills appropriate to the task.
We agree with the trial court that students require more than an eighth-grade education to function productively as citizens, and that the mandate of the Education Article for a sound basic education should not be pegged to the eighth or ninth grade, or indeed to any particular grade level. In CFE we pointed to voting and jury service because they are the civic responsibilities *907 par excellence. For reasons founded in the American historical experience, the statutory requirements for participation in those activities are aimed at being inclusive. Indeed, the latest amendment of Judiciary Law § 510—the juror qualification statute—removed requirements based on jurors' literacy (see L 1995, ch 86, § 3). Yet it cannot reasonably be supposed that the demands of juror service, and any related demands on the City schools, have become less rigorous, or that the concept of a sound basic education would not include literacy.
Finally, with these goals in mind, we come to the dispute over the kind and amount of schooling children need in order to be assured of the constitutional minimum of educational opportunity. In CFE we refrained from addressing this problem in detail, simply setting forth the "essentials":
"Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas" (86 NY2d at 317).
As we further explained, many of the more detailed standards established by the Board of Regents and Commissioner of Education "exceed notions of a minimally adequate or sound basic education," so that proof that schools do not comply with such standards "may not, standing alone, establish a violation of the Education Article" (id.). The trial court, accordingly, declined to fix the most recent, and ambitious, statement of educational goals—the Regents Learning Standards, adopted in 1996—as the definition of a sound basic education (187 Misc 2d at 12). As the trial court observed, so to enshrine the Learning Standards would be to cede to a state agency the power to define a constitutional right.
Although some amici nevertheless urge us to adopt the Learning Standards as the definition of a sound basic education, plaintiffs make no such request. Rather, they contend that children are entitled to a meaningful high school education, *908 one that provides the essentials we listed. Defendants maintain that plaintiffs are trying to set the requirements for a high school diploma as the constitutional floor, and thereby to make mastery of the Learning Standards—which are being phased in as the basis for a high school diploma (see 8 NYCRR 100.5)—the test of a sound basic education after all. We do not construe plaintiffs' arguments as a request for a rule tied to whatever diploma requirement the Regents promulgate, however high; nor do plaintiffs need such a rule to prevail.
The issue to be resolved by the evidence is whether the State affords New York City schoolchildren the opportunity for a meaningful high school education, one which prepares them to function productively as civic participants. This is essentially the question the trial court addressed, and we conclude that the Appellate Division erred to the extent that it founded a judgment for defendants upon a much lower, grade-specific level of skills children are guaranteed the chance to achieve.
III. The Evaluation
To determine whether New York City schools in fact deliver the opportunity for a sound basic education, the trial court took evidence on the "inputs" children receive—teaching, facilities and instrumentalities of learning—and their resulting "outputs," such as test results and graduation and dropout rates. This organization of the facts follows naturally from our summary of the "essentials" in CFE and was not disputed by the Appellate Division.[3]
*909 A. Input
Teaching. The first and surely most important input is teaching. The trial court considered six measures of teacher quality—including certification rates, test results, experience levels and the ratings teachers receive from their principals— and concluded that the quality of New York City schoolteachers is inadequate, despite the commendable, even heroic, efforts of many teachers. The Appellate Division reached a contrary conclusion based on its perception that principals' reviews of the teachers they supervise are the best indication of teaching ability (295 AD2d at 14). But plaintiffs' expert on the labor market for teachers, Dr. Hamilton Lankford, testified authoritatively regarding other factors that are probative of teacher quality, and several experienced administrators testified that principals' reviews tend to conceal teacher inadequacy because principals find it difficult to fire bad teachers and to hire better ones. In our view, the Appellate Division improperly narrowed the inquiry here. Considering all of the factors, we agree with the trial court's findings and its conclusion that the teaching is inadequate.
The 1999 655 Report noted that schools with the highest percentages of minority children "have the least experienced teachers, the most uncertified teachers, the lowest-salaried teachers, and the highest rates of teacher turnover." The same report showed that well over half of the State's minority children attended New York City schools; that 84% of New York City schoolchildren were minorities; and that most of these children are poor. Taken together, these and other facts and statements in the 655 Report amount to an admission by the state agencies responsible for education that—with respect to teacher experience and retention, certification and pay—New York City schools are inferior to those of the rest of the state.
To be sure, the Education Article guarantees not equality but only a sound basic education (see Levittown, 57 NY2d at 48). But as Judge Levine observed in his concurrence in CFE, "the constitutional history of the Education Article shows that the objective was to `make[] it imperative on the State to provide adequate free common schools for the education of all of the children of the State' and that the new provision would have an impact upon `places in the State of New York where the common schools are not adequate'" (86 NY2d at 327 [Levine, J., concurring], quoting 3 Revised Record of Constitutional Convention of 1894, at 695 and adding emphasis).
*910 The 655 Report indicates a mismatch between student need in New York City and the quality of the teaching directed to that need, and it is one authoritative source of facts showing the extent of the mismatch. The report, for instance, shows that in 1997 17% of New York City public schoolteachers either were uncertified or taught in areas other than those in which they were certified. The trial court noted this fact and evidence that uncertified and inexperienced teachers tend to be concentrated in the lowest performing schools. Notably, Dr. Lankford demonstrated not only that New York City schools had the largest percentage of teachers with two or fewer years' experience but also that this percentage was greatest—at 17.9%—in the quintile of City schools with greatest student need. Classifying teachers who either were uncertified or had less than three years' experience as novice teachers, Dr. Lankford testified that nearly a quarter of all City teachers, and nearly a third of the teachers in the neediest quintile of City schools, were novices. And he reviewed the colossal failure rates of City teachers on the State's certification content-specialty tests, which rise above 40% in mathematics, even for math teachers currently teaching in New York City public schools.
As the trial court's decision shows, the record contains many more facts proving a serious shortfall in teacher quality in New York City schools, proving that this shortfall results from those schools' lack of competitiveness in bidding for and retaining personnel, and proving that better teachers produce better student performance (see 187 Misc 2d at 25-36).
On this last point the testimony of Dr. Ronald Ferguson is particularly revealing. Using data from Texas—where all teachers are tested—Dr. Ferguson demonstrated that in districts where teachers perform badly on teacher certification tests, student performance declines as student grade level rises—and, conversely, that where teachers test well, student performance at higher grade levels surpasses student performance at lower grade levels. Thus, the longer students are exposed to good or bad teachers, the better or worse they perform. Based on evidence offered by Dr. Lankford, Dr. Ferguson projected that the same correlation would apply in New York. Defendants' expert, Dr. Eric Hanushek, challenged Dr. Ferguson's conclusions, but the trial court rejected this challenge and the Appellate Division—though it referred to Dr. Ferguson's testimony—did not rest any of its own contrary findings on Dr. Hanushek's testimony.
*911 In sum, we conclude that the Appellate Division erred in relying solely on principals' evaluations, and we agree with the trial court's holdings that teacher certification, test performance, experience and other factors measure quality of teaching; that quality of teaching correlates with student performance; and that New York City schools provide deficient teaching because of their inability to attract and retain qualified teachers.
School Facilities and Classrooms. As we noted in CFE, children are entitled to "classrooms which provide enough light, space, heat, and air to permit children to learn" (86 NY2d at 317). The trial court divided this further—considering first the physical plant of New York City schools, and then the specific problem of overcrowding and class size—and concluded that New York City schools are deficient. The court conceded, however, that the harmful effect of physical deficiencies of the first kind on student performance is difficult to measure. The Appellate Division took note of this concession, dismissed as "anecdotal" plaintiffs' evidence of "leaky roofs, deficient heating, and other problems," and credited testimony that "all immediately hazardous conditions had been eliminated" (295 AD2d at 10).
Eliminating immediate hazards is not the same as creating an environment conducive to learning, and the record contains much evidence about deficient school infrastructure. Nevertheless, on this record it cannot be said that plaintiffs have proved a measurable correlation between building disrepair and student performance, in general.[4]
On the other hand, plaintiffs presented measurable proof, credited by the trial court, that New York City schools have excessive class sizes, and that class size affects learning. Even in the earliest years—from kindergarten through third grade— over half of New York City schoolchildren are in classes of 26 *912 or more, and tens of thousands are in classes of over 30. As the trial court noted, federal and state programs seek to promote classes of 20 or fewer, particularly in the earliest years, and plaintiffs' experts testified on the advantage of smaller classes. As the 1999 655 Report shows, New York City elementary school classes average five more pupils than those of other schools statewide excluding Buffalo, Rochester, Syracuse and Yonkers.
Although the Appellate Division found "no indication that students cannot learn in classes consisting of more than 20 students" (295 AD2d at 11), plaintiffs' burden was not to prove that some specific number is the maximum class size beyond which children "cannot learn." It is difficult to imagine what evidence could ever meet a burden so formulated; nothing in CFE required plaintiffs to do so. Rather, plaintiffs alleged "fact-based * * * inadequacies" in educational inputs, and we held that the State's failure to provide the opportunity to obtain "fundamental skills" would constitute a violation of the Education Article (86 NY2d at 319). Accordingly, plaintiffs had to show that insufficient funding led to inadequate inputs which led to unsatisfactory results.
Plaintiffs' education evaluation statistics expert Dr. Jeremy Finn showed—on the basis of the Tennessee Student Teacher Achievement Ratio (STAR) project and related research—that, holding other variables constant, smaller class sizes in the earliest grades correlate with better test results during those years and afterwards (187 Misc 2d at 52-53). The trial court found that the State's expert Dr. Hanushek failed to rebut these conclusions, and the Appellate Division, mistakenly addressing a nonexistent claim "that classes of over 20 students are unconstitutional" (295 AD2d at 11), set forth no acceptable basis to disturb the trial court's finding.[5] We conclude that plaintiffs' evidence of the advantages of smaller class sizes supports the inference sufficiently to show a meaningful correlation between the large classes in City schools and the outputs to which we soon turn. In sum, the Appellate Division erred in concluding that there was not "sufficient proof" (295 AD2d at 11) that large class sizes negatively affect student performance in New York City public schools.
*913 Instrumentalities of Learning. The final input is "instrumentalities of learning," including classroom supplies, textbooks, libraries and computers. The courts below agreed that the textbook supply is presently adequate and the evidence on classroom supplies is inconclusive. On the other hand, evidence including the latest 655 Report showed that New York City schools had about nine library books per student—half as many as schools statewide excluding the City, and just under half the number recommended by the American Library Association. In light of Levittown, the intrastate inequality does not prove anything in itself, and a library association might be expected to advocate book purchases at levels exceeding the constitutional floor. But in holding that the library books in New York City schools are "inadequate in number and quality" (187 Misc 2d at 57) the trial court clearly relied on the abundant testimony on the adequacy of the books for pedagogical purposes rather than on purely numerical intrastate comparisons.
The unrebutted testimony indicated that the books in City school libraries are old and not integrated with contemporary curricula. The Appellate Division suggested that school libraries simply consist of "classics" rather than "multicultural" books (295 AD2d at 12), but the record contains not one scintilla of evidence that antiquated books in City school libraries are "classics." The Appellate Division thus gave no factual basis for its disagreement with the trial court that the library books in New York City schools are inadequate in quality.
The record concerning computers is similar, establishing that some exposure to them has become essential and that City schools not only have about half as many computers per student as all other New York schools, but also have aging equipment that, in some cases, simply cannot support presently-available software. The Appellate Division speculated that old equipment might be used "for introductory classes" (295 AD2d at 11), but this possibility was not even advocated by the State and, like the "classic" outdated library books, has no record support at all. While we hesitate to overstate the importance of libraries and computers relative to other inputs, we conclude that as to these two instrumentalities of learning the trial court's findings again better comport with the weight of the evidence, and support its conclusion that the New York City schools are deficient in instrumentalities of learning.
In sum, considering all of the inputs, we conclude that the trial court's findings should be reinstated, as indicated, and *914 that the educational inputs in New York City schools are inadequate. There are certainly City schools where the inadequacy is not "gross and glaring" (Levittown, 57 NY2d at 48). Some of these schools may even be excellent. But tens of thousands of students are placed in overcrowded classrooms, taught by unqualified teachers, and provided with inadequate facilities and equipment. The number of children in these straits is large enough to represent a systemic failure. A showing of good test results and graduation rates among these students—the "outputs"—might indicate that they somehow still receive the opportunity for a sound basic education. The showing, however, is otherwise.
B. Outputs
School Completion. Concerning the first output, school completion, the proof revealed that of those New York City ninth graders who do not transfer to another school system, only 50% graduate in four years, and 30% do not graduate or receive a general equivalency degree (GED) by the age of 21, when they cease to be eligible for free public education. This rate of school completion compares unfavorably with both state and national figures, and the trial court considered it symptomatic of "system breakdown" (187 Misc 2d at 63). The Appellate Division concluded that "there was no evidence quantifying how many drop-outs fail to obtain a sound basic education" (295 AD2d at 15). That conclusion follows from the Appellate Division's premise that a sound basic education is imparted by eighth or ninth grade. A sound basic education, however, means a meaningful high school education. Under that standard, it may, as a practical matter, be presumed that a dropout has not received a sound basic education. In any event the evidence was unrebutted that dropouts typically are not prepared for productive citizenship, as the trial court concluded.[6] The Appellate Division would have required a precise quantitative division between those dropouts who somehow are adequately *915 prepared and those who are not, but such a requirement is nowhere to be found in CFE.
The State argues nonetheless that it is responsible only to provide the opportunity for a sound basic education and cannot be blamed if some students—perhaps those who enter New York City schools after years of schooling in another country—do not avail themselves of the opportunity it provides. As the trial court correctly observed, this opportunity must still "be placed within reach of all students," including those who "present with socioeconomic deficits" (187 Misc 2d at 63). This observation follows from the constitutional mandate to provide schools wherein all children may be educated, and is consistent with the official position of the Regents and Education Department, as set forth in the 655 Report for 1999, that "[a]ll children can learn given appropriate instructional, social, and health services."
The evidence on why students drop out suggested mainly that the choice to drop out correlates with poor academic performance and, as noted in the 655 Report for 1999, racial minority status and concentrated poverty. The Report further indicated that "dropout rates serve as useful measures of schools' abilities to * * * motivate learning," supporting the commonsense proposition that large dropout rates reflect problems with the schools as well as the students. The trial court properly considered both possibilities and declined to pin the blame solely on the deficits a "troubled child" brings to school (see 187 Misc 2d at 63). There was certainly no proof that dropout rates are high because inordinate numbers of recent immigrants enter the ninth grade unable ever to graduate, though such students may take longer to graduate.[7] Moreover, as the trial court properly observed, "education is cumulative," and the State's hypothesis that poor completion rates stem from the educational deficits of teenage immigrant students does not jibe with the significant evidence that New York City schoolchildren begin to accumulate learning deficits well before high school (187 Misc 2d at 63).
Test Results. The State's main answer to the proof of graduation and dropout rates in City schools consists of evidence that, in any event, test results are not bad—and this is also *916 where the Appellate Division concentrated its discussion of outputs (295 AD2d at 15-16).
The State's reliance on some favorable standardized test results fails to take into account the full record on examination evidence. In particular, that evidence related to elementary school tests administered statewide and intended to present results with reference to the content appropriate to their grade level: the Pupil Evaluation Program (PEP), which measures individual achievement in reading and mathematics, and the Program Evaluation Test (PET), which measures performance in other subjects. As the trial court explained, the PEP measures student performance relative to a particular score, the state reference point (SRP) (187 Misc 2d at 65). The particular examination used for the PEP reading test during most of the 1990s was the Degrees of Reading Power (DRP). The DRP was replaced in 1998 because it was considered too elementary, in that over 90% of children outside New York City scored above the SRP, so that the exam was inadequate as a means of distinguishing fair from good and good from excellent students. As a means, however, of identifying students in need of remedial attention, the DRP was adequate: a score below the SRP signaled need for improvement.
Between 1994 and 1998, the undisputed evidence showed that upwards of 30% of New York City sixth graders scored below the SRP in reading. Among third graders, 35 to 40% scored below the SRP, while in the rest of the state about 90% scored above. The evidence showed that at the third grade level—when children are expected to have learned to read—a score at the SRP means a child is barely literate, and hence that over a third of City schoolchildren were functionally illiterate. PET scores in science and social studies showed New York City fourth, sixth and eighth graders invariably in the lowest quartile statewide, and generally between the 10th and 16th percentile. The trial court attached significance to these low PEP and PET scores (187 Misc 2d at 65-66). It also properly recognized that—as always—City-wide averages reflect a process of aggregation wherein some successful schools and districts balance others where even larger numbers of pupils score below the SRP (id.). The Appellate Division set forth no basis to challenge the trial court's analysis of this output, other than its belief that courts should "look at the nation as a whole," rather than to test result comparisons within New York State (295 AD2d at 16). We reject this exclusive focus on national comparisons because the record provides no information *917 on how many students receive a sound basic education nationwide.
The State does rely partly on tests administered statewide. In particular, it cites student performance on the Regents Competency Tests (RCTs), which have historically been administered to 11th graders as a prerequisite for graduation. In 1997-1998, 90% of the New York City schoolchildren who reached 11th grade demonstrated competency in reading and mathematics by passing either the RCTs or the more challenging Regents examinations—a figure not far behind the statewide and suburban averages.
Although the RCTs are no longer used to measure readiness to graduate, this fact alone does not disqualify them as a measure of whether students have received a sound basic education. Nevertheless, as both parties agree, th