Campaign for Fiscal Equity, Inc. v. State (86 N.Y.2d 307, 1995)

OPINION OF THE COURT

Ciparick, J.

Thirteen years after we decided Board of Educ., Levittown Union Free School Dist. v Nyquist (57 NY2d 27) (hereinafter Levittown), we are again faced with a challenge to the constitutionality of New York State’s public school financing system. We are called upon to decide whether plaintiffs’ (Campaign for Fiscal Equity et al.) complaint pleads viable causes of action under the Education Article of the State Constitution, the Equal Protection Clauses of the State and Federal Constitutions, and title VI of the Civil Rights Act of 1964 and its implementing regulations.

Judges Titone, Bellacosa, Smith and I conclude that the nonschool board plaintiffs plead a sustainable claim under the Education Article. Judge Levine concurs in a separate opinion. The Court is unanimous that, as to the nonschool board plaintiffs, a valid cause of action has been pleaded under title Vi’s implementing regulations. The remainder of this complaint should be dismissed.

I.

Plaintiffs in this case are (1) Campaign for Fiscal Equity, Inc. (CFE), a not-for-profit corporation whose membership consists of community school boards, individual citizens, and a number of parent advocacy organizations; (2) 14 of New York City’s 32 school districts; and (3) individual students who attend New York City public schools and their parents. The defendants are New York State, the Governor, the Commissioner of Education, the Commissioner of Taxation and Finance, and the Majority and Minority Leaders of the Senate and Assembly.

Plaintiffs commenced this action seeking a declaratory judgment against the State defendants, claiming that the State’s public school financing system is unconstitutional under the Education Article of the State Constitution (art XI, § 1), the Equal Protection Clauses of the State (art I, § 11) and Federal Constitutions (US Const 14th Amend), the Antidiscrimination Clause of the State Constitution (art I, § 11), and is unlawful under title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq.) and the United States Department of Education’s regulations implementing title VI (34 CFR 100.3 [b] [2]).

Three defendants — the State of New York, the Senate Majority Leader, and the Assembly Minority Leader — brought the instant motion to dismiss under CPLR 3211 (a) (3) and (7), contending "that certain plaintiffs lack the right to bring this action and that the complaint fails to state a cause of action.”

Supreme Court granted defendants’ motion to the extent of dismissing all claims asserted on behalf of the plaintiff school districts on the ground that they lacked the legal capacity to sue. As to the remaining plaintiffs — CFE and the individual students and parents — the court dismissed their equal protection and title VI claims for failure to state a cause of action, but ruled that the complaint stated valid claims under the Education Article, the Antidiscrimination Clause of the State Constitution, and title Vi’s implementing regulations.

The Appellate Division modified the order of Supreme Court by fully granting defendants’ motion to dismiss and dismissing the claims made under the Education Article, the Antidiscrimination Clause, and the title VI regulations for failure to state causes of action. The Appellate Division concluded that plaintiffs’ allegations that reduced resources have resulted in the failure to provide New York City school children with an opportunity to receive a minimally adequate education were conclusory in nature, and, in any event, embodied a theory "virtually identical to that advanced, fully tried and ultimately rejected on appeal in Levittown. ” (205 AD2d 272, 276.) The Court also concluded that the prohibition in title Vi’s regulations against methods of administration which have an unlawful impact on racial and ethnic minorities was not violated by the State’s role in allocating a lump sum of education aid to the New York City school system.

II. — Education Article

The first cause of action in plaintiffs’ complaint essentially alleges that the State’s educational financing scheme fails to provide public school students in the City of New York, including the individual plaintiffs herein, an opportunity to obtain a sound basic education as required by the State Constitution.

Discussion of the constitutional issues raised in this case necessarily takes place against the backdrop of our decision in Levittown (57 NY2d 27, supra). The Levittown plaintiffs consisted of 27 property-poor school districts, boards of education of 4 of the State’s 5 largest cities (including New York City), and a number of school children and their parents residing in the property-poor school districts. After a 122-day trial, Supreme Court issued a judgment declaring that the 1974 school financing system violated the Equal Protection Clauses of the Federal and State Constitutions and the Education Article of the State Constitution. The Appellate Division agreed, except as to the Federal equal protection claim. This Court modified, by substituting a declaration "that the present statutory provisions for allocation of State aid to local school districts for the maintenance and support of elementary and secondary public education are not violative of either Federal or State Constitution.” (Id., at 50.)

We rejected the Levittown plaintiffs’ Federal equal protection challenge based on the decision of the Supreme Court of the United States in San Antonio School Dist. v Rodriguez (411 US 1) (id., at 41). The State equal protection challenge was rejected after we applied the rational basis test (id., at 43-46). Finally, the Education Article challenge was found lacking, as the plaintiffs advanced no claim of a deprivation of "minimal acceptable facilities and services” or "a sound basic education” (id., at 47, 48).

Article XI, § 1 of the State Constitution, the Education Article, mandates that "[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” In Levittown, this Court examined the Education Article’s language and history and rejected the plaintiffs’ contention that the provision was intended to ensure equality of educational offerings throughout the State (57 NY2d 17, 47, supra). Rather, we stated, "[wjhat appears to have been contemplated when the Education Article was adopted at the 1894 Constitutional Convention was a State-wide system assuring minimal acceptable facilities and services in contrast to the unsystematized delivery of instruction then in existence within the State.” (Id. [emphasis added].) In order to satisfy the Education Article’s mandate, the system in place must at least make available an "education”, a term we interpreted to connote "a sound basic education” (id., at 48).

The Court in Levittown acknowledged the existence of "significant inequalities in the availability of financial support for local school districts, ranging from minor discrepancies to major differences, resulting in significant unevenness in the educational opportunities offered.” (Id., at 38.) Nonetheless such unevenness of educational opportunity did not render the school financing system constitutionally infirm, unless it could be shown that the system’s funding inequities resulted in the deprivation of a sound basic education (id., at 47-48).

The gravamen of the plaintiffs’ complaint in Levittown was that "property-rich districts have an ability to raise greater local tax revenue enabling them to provide enriched educational programs beyond the fiscal ability of the property-poor districts.” (57 NY2d, at 36.) Indeed, we specifically noted:

"No claim is advanced in this case, however, by * * * plaintiffs * * * that the educational facilities or services provided in the school districts that they represent fall below the State-wide minimum standard of educational quality and quantity fixed by the Board of Regents; their attack is directed at the existing disparities in financial resources which lead to educational unevenness above that minimum standard.” (Id., at 38.)

We recognized in Levittown that the Education Article imposes a duty on the Legislature to ensure the availability of a sound basic education to all the children of the State. Contrary to the dissenting expression of Judge Simons, we are unable to adopt the view that the constitutional language at issue is, in effect, hortatory. Indeed, we should not do so in the face of Levittown’s unambiguous acknowledgment of a constitutional floor with respect to educational adequacy. We conclude that a duty exists and that we are responsible for adjudicating the nature of that duty.

In this case, the principal premise underlying the Appellate Division’s dismissal of plaintiffs’ Education Article cause of action — that it is "virtually identical” to the theory tried and rejected, in Levittown — is flawed and fails. Plaintiffs advance the very claim we specifically stated was not before us in Levittown, i.e., that minimally acceptable educational services and facilities are not being provided in plaintiffs’ school districts. Levittown does not foreclose plaintiffs’ Education Article claim. Rather, a fair, contextual reading of that case compels the contrary conclusion. The Court there manifestly left room for a conclusion that a system which failed to provide for a sound basic education would violate the Education Article (id., at 48).

Having concluded that Levittown is not an obstacle to plaintiffs’ Education Article claim, we turn next to the crucial question: whether plaintiffs have properly stated a cause of action under the Education Article.

That Article requires the State to offer all children the opportunity of a sound basic education (id.). Such an education should consist of 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. If the physical facilities and pedagogical services and resources made available under the present system are adequate to provide children with the opportunity to obtain these essential skills, the State will have satisfied its constitutional obligation. As we stated in Levittown,

"The Legislature has made prescriptions (or in some instances provided means by which prescriptions may be made) with reference to the minimum number of days of school attendance, required courses, textbooks, qualifications of teachers and of certain nonteaching personnel, pupil transportation, and other matters. If what is made available by this system (which is what is to be maintained and supported) may properly be said to constitute an education, the constitutional mandate is satisfied.” (57 NY2d, at 48.)

The State must assure that some essentials are provided. 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.

We note that plaintiffs, throughout their complaint, rely on the minimum State-wide educational standards established by the Board of Regents and the Commissioner of Education, a reliance directly traceable to certain language in Levittown (see, 57 NY2d, at 38). Contrary to Judge Simons, we see no reason to penalize plaintiffs for referencing those standards in this manner. Construing the allegations liberally and in whole, as we must (see, Leon v Martinez, 84 NY2d 83, 87-88), there can be no question that the pertinent pivotal claim made here is that the present financing system is not providing City school children with an opportunity to obtain a sound basic education. However, because many of the Regents’ and Commissioner’s standards exceed notions of a minimally adequate or sound basic education — some are also aspirational— prudence should govern utilization of the Regents’ standards as benchmarks of educational adequacy. Proof of noncompliance with one or more of the Regents’ or Commissioner’s standards may not, standing alone, establish a violation of the Education Article.

Plaintiffs also rely on standardized competency examinations established by the Regents and the Commissioner to measure minimum educational skills (see, 8 NYCRR 100.3 [b] [2]; 100.5 [a] [4]). Performance levels on such examinations are helpful but should also be used cautiously as there are a myriad of factors which have a causal bearing on test results.

We do not attempt to definitively specify what the constitutional concept and mandate of a sound basic education entails. Given the procedural posture of this case, an exhaustive discussion and consideration of the meaning of a "sound basic education” is premature. Only after discovery and the development of a factual record can this issue be fully evaluated and resolved. Rather, we articulate a template reflecting our judgment of what the trier of fact must consider in determining whether defendants have met their constitutional obligation. The trial court will have to evaluate whether the children in plaintiffs’ districts are in fact being provided the opportunity to acquire the basic literacy, calculating and verbal skills necessary to enable them to function as civic participants capable of voting and serving as jurors.

A relevant issue at this point is whether plaintiffs can establish a correlation between funding and educational opportunity. In order to succeed in the specific context of this case, plaintiffs will have to establish a causal link between the present funding system and any proven failure to provide a sound basic education to New York City school children. However, we believe that Judge Simons’ extended causation discussion (see, dissenting in part opn, at 339-340) is premature given the procedural context of this case.

We turn next more specifically to the complaint. In considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), our well-settled task is to determine whether, "accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated” (People v New York City Tr. Auth., 59 NY2d 343, 348; see, Jiggetts v Grinker, 75 NY2d 411, 414-415; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509). We are required to accord plaintiffs the benefit of all favorable inferences which may be drawn from their pleading, without expressing our opinion as to whether they can ultimately establish the truth of their allegations before the trier of fact (see, 219 Broadway, supra, at 509; Underpinning & Found. Constructors v Chase Manhattan Bank, 46 NY2d 459; Morone v Morone, 50 NY2d 481). Only recently we recognized the right of plaintiffs "to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets a minimal standard necessary to resist dismissal of a complaint.” (Armstrong v Simon & Schuster, 85 NY2d 373, 379; see also, Leon v Martinez, 84 NY2d 83, 87-88, supra [court is to "determine only whether the facts as alleged fit within any cognizable legal theory”].) If we determine that plaintiffs are entitled to relief on any reasonable view of the facts stated, our inquiry is complete and we must declare the complaint legally sufficient (see, 219 Broadway, supra).

According to plaintiffs, New York City students are not receiving the opportunity to obtain an education that enables them to speak, listen, read, and write clearly and effectively in English, perform basic mathematical calculations, be knowledgeable about political, economic and social institutions and procedures in this country and abroad, or to acquire the skills, knowledge, understanding and attitudes necessary to participate in democratic self-government (plaintiffs’ amended complaint, record on appeal, at 64-65).

Plaintiffs support these allegations with fact-based claims of inadequacies in physical facilities, curricula, numbers of qualified teachers, availability of textbooks, library books, etc. On the basis of these factual allegations, and the inferences to be drawn therefrom, we discern a properly stated cause of action sufficient to survive a motion to dismiss and to permit this portion of the action to go forward. Taking as true the allegations in the complaint, as we must, plaintiffs allege and specify gross educational inadequacies that, if proven, could support a conclusion that the State’s public school financing system effectively fails to provide for a minimally adequate educational opportunity. We think it beyond cavil that the failure to provide the opportunity to obtain such fundamental skills as literacy and the ability to add, subtract and divide numbers would constitute a violation of the Education Article. In our view, plaintiffs have alleged facts which fit within a cognizable legal theory (see, Leon v Martinez, 84 NY2d 83, 87-88, supra). Accordingly, plaintiffs’ cause of action under the Education Article should be reinstated.

III. — Equal Protection

Judges Simons, Titone, Bellacosa and Levine conclude that the second cause of action alleging that the State’s school financing scheme violates the Equal Protection Clauses of the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, § 11) must be dismissed in light of our decision in Levittown.

In Levittown, we followed San Antonio School Dist. v Rodriguez (411 US 1, reh denied 411 US 959, supra) in holding that education was not a fundamental right under the United States Constitution, and concluded as well that it was not a fundamental right under the State Constitution (57 NY2d, at 41-43). Therefore, we held, the rational basis test was the appropriate standard for equal protection analysis under both Constitutions (id.). We concluded in Levittown that any disparities in educational funding among school districts in the State arising from the State’s financing scheme were rationally based upon and reasonably related to a legitimate State interest, "the preservation and promotion of local control of education” (id., at 44).

Plaintiffs attempt to distinguish Levittown in two ways. First, plaintiffs contend that absent from the pleadings and proof in the Levittown case was the claim they make here, that the State’s funding methodology deprives New York City school children of a "minimum adequate education.” Relying on Plyler v Doe (457 US 202, reh denied 458 US 1131), they urge that an intermediate level of scrutiny applies to such a deprivation, thereby shifting the burden to the State to show a substantial relationship of its educational funding scheme to a substantial State interest (see, id., at 224 [Brennan, J.]; see also, id., at 239 [Powell, J., concurring]). This Court today finds this argument unpersuasive for the following reasons.

First, Plyler v Doe does not stand for the broad proposition that heightened scrutiny applies in all State financing challenges, merely when, as here, the gravamen of the plaintiffs’ factual allegations charges violations of the "state-wide minimum standard of educational quality and quantity.” (Emphasis supplied.) Plyler explicitly disclaimed elevating public education to a " 'right’ granted to individuals by the Constitution” (id., at 221; see also, id., at 223). The Court discerns important differences between the instant case and Plyler, i.e., the educational deprivation was absolute in Plyler and was intentionally discriminatory toward a defined subclass, the blameless children of undocumented alien adults. Moreover, the reach of Plyler’s holding was specifically clarified in Kadrmas v Dickinson Pub. Schools (487 US 450), where the Supreme Court explained:

"We have not extended [Plyler’s application of a heightened level of equal protection scrutiny] beyond the 'unique circumstances’, [Plyler v Doe, 457 US, at 239] (Powell, J., concurring), that provoked its 'unique confluence of theories and rationales’ ” (487 US, at 459).

Thus, as to the claimed violation of the Equal Protection Clause of the Federal Constitution, the Court determines that neither Plyler nor any Supreme Court case decided after Levittown requires reexamination of our holding in that case rejecting heightened scrutiny and finding a rational basis in the State’s educational funding scheme.

Alternatively, plaintiffs’ claim that heightened scrutiny is required under the Equal Protection Clause of the State Constitution because, unlike the Levittown plaintiffs, in this case they have alleged that the State’s educational funding methodology has a disparate impact upon African-American and other minority students. The Court rejects this contention, noting plaintiffs’ concession that no discriminatory intent has been charged in this case. The Court relies on the case law from our Court and the Supreme Court holding that an equal protection cause of action based upon a disproportionate impact upon a suspect class requires establishment of intentional discrimination (see, Arlington Hgts. v Metropolitan Hous. Corp., 429 US 252, 264-265; Washington v Davis, 426 US 229, 240; People v New York City Tr. Auth., 59 NY2d 343, 350, supra; Board of Educ. v Nyquist, 57 NY2d, at 43-44, supra).

IV. — Title VI

Plaintiffs also complain that the State public education financing system violates title VI and title Vi’s implementing regulations. Title VI provides:

"No 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” (42 USC § 2000d).

Title VI prohibits discrimination on the basis of race or national origin in programs receiving Federal financial assistance (see, 42 USC §§ 2000d — 2000d-6). The Supreme Court has ruled that there must be a showing of intentional discrimination to succeed on a title VI claim (see, Guardians Assn. v Civil Serv. Commn., 463 US 582). Guardians involved a challenge to the hiring and firing practices of New York City’s police department. The principal issue was whether compensatian could be awarded for a violation of title VI in the absence of proof of discriminatory intent. Although the Court was divided and no majority opinion issued, seven Justices concluded that proof of discriminatory intent is required in order to make out a violation of title VI (see, Alexander v Choate, 469 US 287, 293). The instant complaint contains no showing of intentional discrimination.

Plaintiffs also allege a violation of title Vi’s implementing regulations (see, 34 CFR 100.3 [b] [2]), which provide that recipients of Federal funding may not:

"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.” (Emphasis supplied.)

The regulations incorporate a disparate impact standard.

Under title Vi’s implementing regulations, proof of discriminatory intent is not a prerequisite to a private cause of action against governmental recipients of Federal funds (see, Choate, supra, at 293-294). Proof of discriminatory effect suffices to establish liability under the regulations promulgated pursuant to title VI: "actions having an unjustifiable disparate impact on minorities [can] be redressed through agency regulations designed to implement the purposes of Title VI” (id., at 293).

Federal courts have consistently held that the evidentiary standards developed under title VII govern title VI cases as well (see, e.g., Georgia State Conference of Branches of NAACP v State of Georgia, 775 F2d 1403, 1417; Groves v Alabama State Bd. of Educ., 776 F Supp 1518, 1523). Consequently, in order to make out a prima facie case of disparate impact:

"The plaintiff first must show by a preponderance of the evidence that a facially neutral practice has a racially disproportionate effect, whereupon the burden shifts to the defendant to prove a substantial legitimate justification for its practice. The plaintiff then may ultimately prevail by proffering an equally effective alternative practice which results in less racial disproportionality or proof that the legitimate practices are a pretext for discrimination.” (Georgia State Conference, supra, at 1417 [citations omitted].)

A validly stated cause of action under the title VI regulations thus has two components: "whether a challenged practice has a sufficiently adverse racial impact — in other words, whether it falls significantly more harshly on a minority racial group than on the majority — and, if so, whether the practice is nevertheless adequately justified.” (Groves, supra, at 1523; see, Georgia State Conference, supra, at 1417; Quarles v Oxford Mun. Separate School Dist., 868 F2d 750, 754, n 3.) Statistics comparing benefit distribution or access patterns among members of the protected class and the over-all population play a key role in demonstrating an adverse racial impact (see, Georgia State Conference, 775 F2d, at 1417 [plaintiffs made prima facie case through statistics showing that the racial composition differed from what would be expected from a random distribution]; Huntington Branch, NAACP v Town of Huntington, 844 F2d 926, 938; Sharif v New York State Educ. Dept., 709 F Supp 345, 362).

Once a prima facie case is established, the burden of persuasion shifts to the defendant to affirmatively defend the challenged practice by way of a legitimate nondiscriminatory reason (see, Larry P. v Riles, 793 F2d 969, 982-983). If the defendant meets its burden and demonstrates that the challenged practice is justified or necessary, the plaintiff can still prevail by showing that "less discriminatory alternatives” were available to further the purportedly legitimate interest (see, Abermarle Paper Co. v Moody, 422 US 405, 425).

Applying the foregoing standards to this case, we conclude that plaintiffs have stated a cause of action under title Vi’s regulations. The Appellate Division dismissed plaintiffs’ claim on the ground that the State’s role in allocating a lump sum to the New York City school system is not the "function which results in the disparate impact on minority racial or ethnic groups; rather, it is the method by which plaintiff Chancellor of the City School District divides and suballocates those funds that may arguably result in the disparate impact complained of here.” (205 AD2d, at 277.) The Appellate Division misconstrued the nature of plaintiffs’ claim.

Plaintiffs complain that it is the State’s decisions concerning allocation of education aid which constitute the "criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race” (34 CFR 100.3 [b] [2]). The complaint challenges the manner in which the State allocates education aid, alleging that the present methodology has a disparate impact on the State’s racial and ethnic minorities, the vast majority of whom attend New York City public schools.

The Appellate Division’s reasoning fails to account for the fact that the City can only suballocate what the State allocates to it. If, as alleged, the State allocates only 34% of all State education aid to a school district containing 37% of the State’s students (81% of whom are minorities comprising 74% of the State’s minority student population), then those minority students will receive less aid as a group and per pupil than their nonminority peers who attend public schools elsewhere in the State, irrespective of how the City suballocates the education aid it receives.

Initially, it is undisputed that New York State is the recipient of Federal funds for education. Moreover, plaintiffs complain of a benefit distribution practice which allegedly has the effect of subjecting minority students to discrimination on the basis of their race, color, or national origin. Plaintiffs support their allegations statistically, pointing to the disparity between the total and per capita education aid distributed to the City’s predominantly minority student population as opposed to the amount distributed to the State’s nonminority students. Since defendants have not yet advanced a substantial justification for the challenged practice at this procedural point, plaintiffs’ cause of action under the title VI regulations should be reinstated (see, Georgia State Conference of Branches of NAACP v State of Georgia, 775 F2d 1403, 1417, supra; Groves v Alabama State Bd. ofEduc., 776 F Supp 1518, 1523, supra).

The order of the Appellate Division should be modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

. Judges Simons, Titone, Bellacosa and Levine have concluded that the community school board plaintiffs lack capacity to bring this suit (see, City of New York v State of New York, 86 NY2d 286 [decided today]), a conclusion with which Judge Smith and I respectfully disagree (see, id. [Ciparick, J., dissenting]). Consequently, all claims asserted on behalf of the community school board plaintiffs must be dismissed and the ensuing discussion applies only to the remaining plaintiffs in this action.

. Plaintiffs have abandoned this claim on this appeal.

. Supreme Court consolidated this action with City of New York v State of New York (86 NY2d 286, supra [decided today]). In City of New York, essentially the same challenges were made to the State’s education funding system as are made here, and Supreme Court dismissed the entire complaint for lack of legal capacity to sue.

. Judge Levine, in his concurrence, also concludes, for his own articulated reasons, that the Education Article requires the State to provide the opportunity of a "sound basic education”. Contrary to his assertions, however, this decision does not extend the State’s funding obligations (see, concurring opn, at 325). Judge Simons, in his dissent, also asserts that the majority opinion would compel a funding directive. However, any discussion of funding or reallocation is premature, because the only issue before the Court at this time is whether plaintiffs have pleaded a viable cause of action under the Education Article. The question of remedies is not before the Court.

. Judge Smith and I respectfully disagree and would sustain the second cause of action under the State Constitution in a separate opinion. Judge Smith, alone, further finds plaintiffs have stated a valid equal protection claim under the Federal Constitution.

. Plaintiffs’ brief, at 30.

. Plaintiffs’ brief, at 30.

. Plaintiffs’ brief, at 39.

. Plaintiffs complain that 74% of the State’s minority student population attend City schools, that minorities make up 81% of the City’s public school enrollment as compared to 17% of school enrollment outside the City, and that the City’s predominantly minority students receive 12% less State aid per pupil ($3,000) than the State-wide average ($3,400).

Levine, J.

(concurring). I join with the majority of this Court in holding that plaintiffs have failed to allege legally sufficient causes of action under the Equal Protection Clauses of the Federal and State Constitutions or under title VI of the Civil Rights Act of 1964, but have pleaded a valid cause of action under the United States Department of Education’s regulations implementing title VI. I am also of the view that, under our prevailing liberal pleading standards, the complaint states a cause of action based upon a violation of the Education Article of the State Constitution (NY Const, art XI, § 1). The complaint invokes the definition of the State’s educational duty under the Constitution set forth in Board of Educ., Levittown Union Free School Dist. v Nyquist (57 NY2d 27) (hereinafter Levittown) and alleges that the State’s public school financing scheme denies them a "sound basic education” with "minimal acceptable facilities and services” (id., at 47-48). The complaint also refers to various specific educational deficiencies and alleges that the State’s funding scheme denies New York City public school students the opportunity to achieve even basic literacy. These allegations, in my view, are sufficient to withstand the motion to dismiss, despite the inclusion and heavy reliance upon various other factors which I consider essentially irrelevant to a determination of whether the current State school aid formula violates the Education Article of the State Constitution.

I write separately regarding plaintiffs Education Article claim because the constitutional standard for a sound basic education articulated by the majority may be read to extend the State’s funding obligation well beyond that envisaged by the Levittown Court or justified by the language or history of the adoption of the Education Article.

I.

Before addressing the errors and deficiencies I perceive in the majority’s opinion upholding the sufficiency of plaintiffs’ Education Article cause of action, I wish to explain why I am unable to agree with Judge Simons’ dissent in this case, although I find much merit in its discussion of the extent of the State’s constitutional responsibility for funding the State’s public education system and of the inherent limitations of courts in making constitutional decisions on educational quality and quantity. That dissent concludes that it "is for other branches of government, not the courts, to define what constitutes a sound basic education” (Simons, J., dissenting in part opn, at 333). It also finds plaintiffs’ Education Article cause of action deficient because their "claim [of a denial of a sound basic education] does not attempt to establish deprivation State-wide; it advances only claims involving some New York City schools”. (Simons, J., dissenting in part opn, at 338.) The dissent apparently concludes that the State’s mandate to support the system of education is only breached upon proof of a State-wide failure of the system of public education, but not a failure (attributable to inadequate State funding) in any individual school district. I believe this position is inconsistent with the Levittown decision.

In Levittown we explicitly stated that the Education Article (NY Const, art XI, § 1) of the Constitution does require the Legislature to put in place and support "a State-wide system assuring minimal acceptable facilities and services”, although not necessarily "a system assuring that all educational facilities and services would be equal throughout the State.” (57 NY2d, at 47, supra [emphasis supplied].) We further defined the "constitutional mandate” as that of providing a "sound basic education” (id., at 48).

This Court in Levittown viewed from an historical perspective the funding role and responsibility of the State in the constitutional scheme contemplated when article XI, § 1 was adopted. We expressly relied upon the historical description, contained in the amicus brief of 85 local school districts, that there has been in this State a nearly 200-year tradition of a dual system of financing public education, already well in place when the Education Article was adopted in 1894, giving local school districts broad autonomy in making policy decisions on the quality and quantity of education and the funding thereof for their respective schools (see, id., at 46). We described the State’s funding responsibility under the 1894 constitutional scheme as one of "assuring that a basic education will be provided [through State financial aid to local school districts]” (id., at 45 [emphasis supplied]).

These observations were historically accurate and are reflected in the history of the adoption of the Education Article. As early as 1795, the Legislature enacted a common school law providing for State aid to counties and cities to support their local schools, contingent upon matching funds raised by local taxation but not otherwise limiting local school educational expenditures; similar legislation was passed in 1812 (see, 3 Lincoln, The Constitutional History of New York, at 526-527). As we have discussed more extensively in Reform Educ. Fin. Inequities Today v Cuomo (86 NY2d 279 [decided today]), the primary purpose of article XI, § 1 was to "constitutionalize the established system of common schools rather than to alter its substance” (86 NY2d, at 284). Moreover, 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” (3 Revised Record of Constitutional Convention of 1894, at 695 [emphasis supplied]).

In my view, the dissent’s conclusions that the determination of what constitutes a sound basic education for constitutional purposes is not a judicial responsibility on this constitutional challenge, and that, in any event, only a State-wide failure to provide funding for a sound basic education will give rise to a constitutional violation, are inconsistent with Levittown’s description of the State’s funding responsibility and with the constitutional history I have cited. The Levittown record definitely established, and the courts at all levels recognized that the State’s educational aid formula produced significant variations in aggregate per pupil State aid among the various school districts (see, e.g., Levittown, 94 Misc 2d 466, 502). Also established in Levittown and found by the trial court was that the cost of the same educational services, resources or facilities varied substantially throughout the State (see, id., at 503-510). If, because of such factors or others, the State aid to an individual school district proved to be insufficient to "assure minimal adequate facilities and services” (57 NY2d, at 47, supra) or "to assur[e] that a basic education will be provided” (id., at 45), our Levittown decision certainly would lead to the conclusion that the State’s constitutional educational funding responsibility, couched in those very terms, would have been violated in that school district. Moreover, the notion that only a State-wide failure to provide sufficient State funds for a basic sound education is sufficient to establish a right to relief under the Education Article is inconsistent with the constitutional debate I have previously quoted, in which it was specifically anticipated that its adoption would have an ameliorative effect upon "places * * * where the common schools are not adequate” (see, supra).

Thus, I conclude that we cannot avoid addressing the meaning and content of the constitutional mandate identified in Levittown, that the Legislature must support a public school system providing an opportunity for students to receive a sound basic education.

II.

I now turn to a discussion of the serious errors I find in the majority’s opinion addressing the meaning and content of that constitutional mandate, to provide school children an opportunity for a sound basic education. Analysis may profitably begin by identifying what the Levittown Court most clearly rejected as the constitutional mandate under the Education Article. Contrary to the conclusion of the majority here, the Court in Levittown not only had before it the contention that disparities in overall funding and quality of education among local school districts violated the Education Article. The Court also undisputably had before it the claim, supported by findings of fact and conclusions of law by the lower courts, that, irrespective of the existence of disparities, the school children in the plaintiff and intervenor school districts in that case were not receiving the educational opportunities guaranteed by the Education Article. Thus, without reference to disparity, the trial court adopted as the constitutional mandate in New York the construction of a comparable constitutional provision on public education by the New Jersey Supreme Court in Robinson v Cahill (62 NJ 473, 515, 303 AD2d 273) (Levittown, 94 Misc 2d, at 533, supra):

" 'The Constitution’s guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market’.”

The trial court paraphrased that concept of the constitutional obligation as requiring the State to afford all school children the opportunity to acquire those skills "necessary to function as a citizen in a democratic society” (id.), and found that the constitutional responsibility of the State was breached by the State’s inadequate funding aid to the large city school districts in the State (id., at 534).

When the Levittown case reached the Appellate Division, the majority in that Court adopted the same approach in defining the basic education guaranteed by article XI, § 1. It quoted (83 AD2d 217, 249) from Seattle School Dist. No. 1 v Washington (90 Wash 2d 476, 517, 585 P2d 71) that the educational opportunities which are constitutionally required to be furnished are those " 'in the contemporary setting to equip our children for their role as citizens and as potential competitors in today’s market as well as in the marketplace of ideas’ The Appellate Division concluded that "we believe section 1 of article XI of the New York Constitution requires no less” (83 AD2d, at 249, supra). The Appellate Division majority found that the then-current State funding scheme violated the Education Article in failing to provide children in the school districts represented there with the skills required thus "to function in society” (83 AD2d, at 251, supra).

The majority of this Court in Levittown was also directly confronted with the position of the sole dissenter, Judge Fuchsberg, that under the State Constitution, all children "are entitled to an education that prepares today’s students to face the world of today and tomorrow.” (57 NY2d, at 60, supra.) The dissent also reminded the majority that both lower courts found as a fact that the State’s funding scheme denied such educational opportunities for the children in the districts involved in the Levittown suit. "Those who took and tolled the testimony tell us that, by any standard that counts, for the multitudinous many no such educational opportunity truly exists.” (Id.)

Despite those findings by the lower courts in Levittown, that the children in the subject school districts in that suit were denied the opportunity "to acquire the skills necessary to function as a citizen in a democratic society” (94 Misc 2d, at 533, supra) or the skills "to function effectively in society” or prepare them for " 'their role as citizens and as potential competitors in today’s market place’ ” (83 AD2d, at 248-249, supra), this Court held, as a matter of law, that the plaintiffs and intervenors in Levittown had not established (indeed, not even claimed) that the State’s public education funding scheme failed to provide the educational opportunity mandated by article XI, § 1, i.e., minimal facilities and services needed for a sound basic education.

The conclusion seems to me inescapable that, if we are to faithfully follow the Levittown precedent, the concept of a sound basic education as a constitutional mandate is much more circumscribed than the aspirational, largely subjective standards expressed by the lower courts and the dissent in Levittown, representing what typically one would desire as the outcome of an entire public education process — to produce useful, functioning citizens in a modern society or, as Judge Fuchsberg put it, preparation of students "to face the world of today and tomorrow”.

Thus, in my view, the majority unmistakably and unwisely departs from Levittown in the majority’s principal holding here that the sound basic education which is the State’s funding responsibility under the Education Article includes imparting these skills "necessary to enable children to eventually function productively as civic participants” (majority opn, at 316 [emphasis supplied]). In substance and meaning, this objectively unverifiable standard is indistinguishable from the criteria for the constitutional norm expressed by the trial court and Appellate Division in Levittown. The majority’s error is further compounded and reinforced by the majority’s reference to plaintiffs’ allegations, which the majority apparently considers relevant on plaintiffs’ cause of action under the Education Article, that New York City students are being deprived of the opportunity, among other things, to "be knowledgeable about political, economic and social institutions and procedures in this country and abroad” (majority opn, at 319).

Having demonstrably rejected similar standards, the manifest teaching of Levittown is that the State’s constitutional educational funding responsibility does not nearly extend to guaranteeing students the opportunity to acquire those skills to "function productively as civic participants”, as the majority would have it. The narrower State role, as the Levittown decision explains, flows necessarily from New York’s historical tradition of dividing responsibility over public education between the State and local school governments, under which the quality of public education necessary to enable students to "function in society” is largely a matter of local decision and control subject to standards and assistance from the appropriate State executive, legislative and administrative bodies (see, Levittown, 57 NY2d, at 45-46, supra). As previously pointed out, that division of responsibility was constitutionalized in the adoption of article XI, § 1.

That this Court in Levittown construed the Constitution as imposing only a drastically limited State funding responsibility for guaranteeing the quality of public school education also stems from the Levittown majority’s awareness of the inherent and proper limitations of the courts in enforcing the constitutional obligation. The Levittown decision cogently pointed to the "enormous practical and political complexity” (57 NY2d, at 38, supra) of deciding upon educational objectives and providing funding for them which, under our form of government, are legislative and executive prerogatives upon which courts should be especially hesitant to intrude (id., at 39; see also, id., at 49, n 9). Again, the majority here disregords the prudent and jurisprudential advice of Levittown and appears ready to fully enter this arena in delineating a series of "essentials” to which "[c]hildren are entitled” under the Constitution, including such things as "minimally adequate teaching of reasonably up-to-date curricula” on a wide variety of subjects, "reasonably current textbooks” and "minimally adequate” educational physical plant and equipment (majority opn, at 317). Presumably the determination of the adequacy of all such educational resources will be made by the Trial Judge in this case.

The true, far more limited nature of the State’s constitutional responsibility to fund a sound basic education can be gleaned, again, from the language of the Education Article itself and the Levittown opinion. As is well explained in Judge Simons’ dissent, article XI, § 1 does not explicitly designate a State responsibility regarding any minimum quality of education. It expressly imposes only the duty upon the Legislature to "provide for the maintenance and support of a system” of free public education (NY Const, art XI, § 1 [emphasis supplied]). The Levittown Court emphasized that the constitutional mandate is solely to maintain a system of education (57 NY2d, at 48, n 7). The Court observed that, concededly, a system of public schools did exist in the State through legislation and regulation and appropriations for maintenance of various State-wide minimum educational standards, etc. (id., at 48). The Court then identified the only remaining element of the State’s constitutional responsibility under article XI, §1:

"If what is made available by this system * * '* may properly be said to constitute an education, the constitutional mandate is satisfied.” (Id. [emphasis supplied].)

Thus, the sound basic education envisaged by the Levittown Court as a constitutional mandate subsume those minimal categories of instruction without which whatever the system provides cannot "be said to constitute an education”. Historically and traditionally, the essential, universally recognized as indispensable elements, the sine qua non, of what legitimately might be called an education are the basic literacy (reading and writing) and computational skills and, in a public educational system, citizenship awareness. A public educational system failing to provide the opportunity to acquire those basic skills would not be worthy of that appellation.

Of course, almost all of us would hope for, expect and support as voters and taxpayers funding of a system of public education in this State which offers more than those basics in all school districts, including the furnishing of many of those resources and subjects of instruction plaintiffs claim to be constitutionally mandated and those which, regretably, may be implied as required from the majority’s interpretation of the Education Article. But Levittown held that decisions regarding such concededly worthwhile educational supplements, including the selection thereof and the level of such funding, is to be determined in other forums than by judicial fiat in interpreting the State Constitution. Levittown cannot fairly be interpreted as mandating more than the provision of a system in which all children in the State are given an opportunity to acquire basic literacy, computational skills and knowledge of citizenship as the elements of a sound basic education. Deficiencies beyond those basics were certainly established in the Levittown record, and were found to exist by both lower courts in that case. Yet this Court in Levittown not only found no deprivation of a sound basic education had been proven, it found none had been claimed.

The majority’s significantly less precise or exacting standard for the sound basic education constitutionally required to be provided invites and inevitably will entail the subjective, unverifiable educational policy making by Judges, unreviewable on any principled basis, which was anathema to the Levittown Court.

As I have previously discussed, however, the complaint can be read as alleging that the State’s funding scheme denies New York City school pupils the opportunity to acquire the basic literacy and mathematical skills. I, therefore, vote with the majority that plaintiffs’ cause of action under the Education Article of the State Constitution is legally sufficient.

Simons, J.

(dissenting in part). There can be no argument about the importance of educating our children or that there are serious shortcomings in the New York City school system. But it is possible to recognize those serious social concerns and still conclude, as I do, that plaintiffs have not successfully pleaded a cause of action charging defendants with violating the Education Article of the State Constitution.

Plaintiffs allege in their first cause of action that defendants have violated article XI, § 1 of the New York State Constitution because children in New York City have been deprived of a sound basic education. They support that conclusion by a number of allegations identifying shortcomings in instruction, facilities and student performance in the City’s schools. The majority and Judge Levine in his concurrence conclude this states a cause of action because they interpret the Education Article as containing a qualitative component. In their view, the Constitution guarantees that all school-age children shall receive a sound basic education. They hold that the definition of a sound basic education, and the standard against which the City’s schools are to be measured, is to be judicially determined. If the instruction, facilities and student performance in New York City schools fail to meet that standard, the State has violated the Constitution and must respond to correct the deficiencies in the City’s school system. The majority and Judge Levine differ only on the particulars of the education which the Court should decree necessary.

My review of the history of the Education Article and our Levittown decision interpreting it (Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27) (hereinafter Levittown) leads me to a different conclusion. I believe that the constitutional duty is satisfied if the State creates the structure for a State-wide system of schools in which children are given the opportunity to acquire an education and supports it. It is for other branches of government, not the courts, to define what constitutes a sound basic education and, assuming the State has not defaulted on its duty to establish a State-wide system and provide financial support, to ensure that the opportunity to be educated is available to all. In my view, plaintiffs have not successfully pleaded that the State has violated that duty.

I therefore dissent from so much of the majority’s decision as sustains plaintiffs’ first cause of action alleging a violation of article XI, § 1 of the New York State Constitution.

I

At the outset, it is helpful to remember that the responsibility for primary and secondary education in New York has been historically, and is by law, a joint undertaking of the State and local school districts. The State, acting through the Legislature and the constitutionally created Board of Regents, establishes standards for curricula, faculty and facilities and annually provides financial aid to the local districts. In 1994-1995 the State distributed almost $10 billion in State funds to school districts in New York State. The New York City School District received over one third of that sum (see, Report of Education Unit, New York State Div of Budget, Oct. 31, 1994, at 16-17, 26-27). Although individual districts no longer enjoy the power to establish the criteria for instruction and facilities they once had, they remain charged with administering the schools in their districts and possess broad powers for that purpose. They also supply a major part of the funding necessary to support and maintain their schools. They do so by determining annual expenses and, after crediting that sum with State and Federal aid, raising the balance by local taxation.

In the past, the financial needs of the New York City School District were supported by a greater proportion of local funds than State funds. Since 1983, however, the amount of money contributed by the City has steadily declined while the amount contributed by the State has increased. The State now contributes more to the funding of City schools than does the City. This increase in State aid has not, however, resulted in increased or improved services, only in a reduction in City appropriations for education (see, Chancellor’s Budget Estimate, 1995-1996, Board of Educ of City of NY, at 14). The question before the Court on this appeal, broadly stated, is whether the Constitution requires the State to provide an even greater share of the funds than it now does to defray the cost of operating the New York City schools.

A

Analysis begins with the language of the Constitution. The Education Article provides:

"The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” (NY Const, art XI, § 1.)

The words, with utter simplicity, impose a duty on the State to create a "system” for free public education available to all children and to support it. Conspicuously absent are descriptive words, establishing a qualitative or quantitative standard for the education the State must provide. Thus, if the drafters intended to impose on the State a substantive requirement for instruction and facilities, or provide that the State is ultimately responsible for any shortage of funds in individual school districts, it must be found in the history of the Article, not its words.

The section was adopted in 1894 at a time when there were more than 11,000 independent school districts in the State offering vastly different educational opportunities (see, 3 Lincoln, Constitutional History of New York, at 550-551). The Convention record reveals that the section was proposed to "expressf ] the principle of universal education, and direct[ ] the Legislature to use the power of the State to foster that principle” (3 Revised Record of Constitutional Convention of 1894, at 691). Its "evident purpose [was] to impose on that body the absolute duty to provide a general system of common schools” (3 Lincoln, Constitutional History, op. cit., at 554). Thus, it was said the Legislature must provide "not simply schools, but a system; not merely that they shall be common, but free, and not only that they shall be numerous, but that they shall be sufficient in number, so that all the children of the State may * * * receive in them their education” (id., at 555). The delegates’ concern was focused on establishing a State-wide system of free education. The quality of that education was mentioned only in passing, a delegate stating that it should be "adequate” (3 Revised Record on Constitutional Convention, op. cit., at 695). I find no indication that the drafters intended to go beyond this and impose a qualitative component within the Education Article, or to hold the State liable to make up a shortage of funds in particular school districts.

B

Reviewing this history in Levittown (57 NY2d 27, supra), we concluded that the section was intended to require "a Statewide system assuring minimal acceptable facilities and services in contrast to the unsystematic delivery of instruction” which existed when the Constitution was adopted (Levittown, supra, at 47).

Levittown, of course, involved a different claim than is asserted here: it dealt with the inequality or disparity of the education offered in various districts of the State whereas plaintiffs here assert that the students of New York City’s schools have been deprived of an education meeting constitutional standards. Nevertheless, the Levittown Court interpreted the Education Article and the majority, Judge Levine and I all rely on that interpretation to support our differing views. The majority and the concurrence conclude that the Levittown decision does not foreclose the courts from defining the ingredients of a sound basic education and ordering the State to assume responsibility for providing it. They find in Levittown an "unambiguous acknowledgement of a constitutional floor with respect to educational adequacy,” and from that, assume the power of the courts to override the legislative and executive determinations of what and how much the system must provide (majority opn, at 315). The majority believes that the Levittown Court analyzed the article only so far as was necessary to address inequality and maintains that it is acting consistently with that precedent and only resolving issues the Levittown Court left unanswered. I conclude that the Levittown Court fully considered and determined the scope of the constitutional duty. Our differing int