Council of Supervisory Associations of Public Schools of New York City v. Board of Ed. of City of New York

• Decision Date: 15 January 1969
• Citation: 23 N.Y.2d 458,297 N.Y.S.2d 547,245 N.E.2d 204
• Parties: , 245 N.E.2d 204 In the Matter of COUNCIL OF SUPERVISORY ASSOCIATIONS OF the PUBLIC SCHOOLS OF NEW YORK CITY et al., Respondents-Appellants, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Appellants-Respondents; Parent Development Program of the Two Bridges Neighborhood Council, Inc., Intervenor-Appellant-Respondent, and Louis Fuentes et al., Intervenors-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 547

297 N.Y.S.2d 547

23 N.Y.2d 458, 245 N.E.2d 204

In the Matter of COUNCIL OF SUPERVISORY ASSOCIATIONS OF the

PUBLIC SCHOOLS OF NEW YORK CITY et al., Respondents-Appellants, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al.,

Appellants-Respondents; Parent Development Program of the

Two Bridges Neighborhood Council, Inc.,

Intervenor-Appellant-Respondent, and Louis Fuentes et al.,

Intervenors-Appellants.

Court of Appeals of New York.

Jan. 15, 1969.

J. lee Rankin, Corp. Counsel (Stanley Buchsbaum, Sanford I. Freedman and Laurence Cherkis, New York City, of counsel), for Bd. of Education of City of New York, appellants-respondents.

Robert Sugerman and Harold J. Rothwax, New York City, for intervenor-appellant-respondent.

William M. Kunstler and Jeremiah Gutman, New York City, for intervenors-appellants.

Max H. Frankle, Everett E. Lewis and Bernard Yaker, New York City, for respondents-appellants.

Burt Neuborne, Paul G. Chevigny, Alan H. Levine and Sheldon L. Berens, New York City, for New York Civil Liberties Union and others, amici curiae.

BERGAN, Judge.

In 1967 the Legislature declared it to be the public policy of the State to encourage community interest in the public schools of New York City and to develop an educational program in the public schools concerned with local community needs (L. 1967, ch. 484).

This public policy was laid down by the statute in specific terms. It was found by the Legislature that greater community 'awareness and participation' were essential both to 'excellence' and 'innovation' in schools.

It was declared that the 'creation of educational policy units' within the city-wide school district would accomplish two things: an opportunity for the community to take a more active 'and meaningful' role in the schools and the development of an educational policy 'closely related to the diverse needs and aspirations of the community' (§ 1).

The statute directed this policy be implemented by the preparation and submission to the Legislature, the Governor and the Regents of a plan for school 'decentralization' (§ 2).

This legislative policy and its implementing directions were addressed to a palpable school problem of growing intensity and difficulty. It is the accepted hypothesis of objective anthropologists throughout the world that the distribution of basic intelligence in the human race is approximately equal among all ethnic groups. Yet it has been the experience of educators that Negro and Puerto Rican children living in economically deprived areas in New York City were handicapped at the very beginning of their primary school education and started behind their fellow white students.

The testing standards of educational ability and performance were, naturally enough, measured by achievement valued by professional teachers, e.g., reading, arithmetic, writing, spelling, correct speech. While these skills are not, of course, the ultimate test of either the intelligence or the potential development of a child, they seem to be the indispensable bases of personal success in any technically highly developed country of our period. To see this in broad perspective it might be useful to compare the demands for technical skills in the United States, England, France, Japan and Russia.

This initial handicap of the nonwhite child, when he first came to school, it was found on a broad statistical scale, was not redressed under the ministrations of the public schools. It got worse. At the end of the eighth grade the nonwhite child was relatively farther behind his white fellow-pupil than he had been at the beginning; at the end of the 12th grade the disparity increased.

It became obvious the traditional public school teaching was not succeeding in imparting to a very substantial segment of children the basic educational tools needed for ultimate economic usefulness. This failure to teach what is indispensable to any significant personal opportunity in present-day life had two main consequences: it tended to compel the child as he grew up to remain in the dismal and ghetto-like conditions of an economically underprivileged community and to solidify the alienation of that community with fateful consequences; and it aroused in the nonwhite community a quite reasonable demand that public school teaching methods be recast to give its children the necessary essential skills.

To recast public school teaching to correct its deficiencies in this large class of pupils became the purpose to which many educators gave attention. The deficiencies were related to the conditions of life in which the child lived. It was a problem of appalling difficulty. Since methods which worked well enough with pupils coming from a white background failed to work with children from nonwhite backgrounds and since the basic intelligence of both groups must be presumed equal, some factors deep in the matrix of the community could be seen to play a part in the failure.

No one had an adequate answer but the strongest demands of good sense called for a solution. The area was one in which experimentation, the testing of new ideas inductively, pointed an obvious direction for public policy. It is with this background that chapter 484 of the Laws of 1967 must be read. The statute did not spring up in a vacuum.

One experimental idea investigated by the Board of Education of the city as early as 1962 on the basis of poor showing of pupils in slum areas was to attempt to interest and involve parents in these areas in the public school program. A possible means to achieve this was decentralization of school administration into smaller units.

The board in 1966 sought to implement this and, closely related in time to the enactment of the 1967 statute, announced a plan for decentralization. After the statute was passed, the board determined to proceed with some demonstration projects based on the concept of decentralization. These would, it was hoped, help meet present needs as well as guide future legislation and policy.

The board determined that 'new techniques and new approaches' were needed to train staff and for 'increasing parental and community involvement'. It also determined that in 'demonstration' schools which were essentially experiments in wider co-operation between the school and the community, the principal should be a person who, having conventional educational qualifications, also understood the cultural strength and energies of the pupils and the community. This present case is concerned solely with principals.

The board was of opinion that the general training and competitive tests for principals were not addressed to these special needs. The State Commissioner of Education to whom the question of the board's authority to create the new kind of principal positions was referred approved it on August 21, 1967 by letter to the board. He stated it had power to 'designate a special kind of grade of principals' license designed specifically for the project'.

This new principal position, the Commissioner noted, should be filled by an 'appropriate examination' from a 'special eligible list'. Until the list was promulgated the Commissioner decided the Board of Education could appoint a person 'to serve in an acting capacity'.

The Board of Education acted on this advice and in pursuance of the policy direction of the 1967 statute. On September 27 the board created a new position: 'Principal, Demonstration Elementary School'. On the same day the board made three temporary appointments as 'Acting' Demonstration Elementary School Principal, those of Irving Gerber, William H. Harris and Louis Fuentes; and on November 15 appointed Ralph Hugo Rogers.

It will be remembered that the board had previously determined the existing elementary principals list was inappropriate for the position of Demonstration Elementary School Principal. It is with the legality of these appointments this proceeding is concerned. The court at Special Term annulled these appointments as 'invalid' and the Appellate Division by a closely divided vote affirmed, 31 A.D.2d 34, 295 N.Y.S.2d 88. The Appellate Division majority was of the opinion that the Special Term was right in holding that the old title of Principal Elementary School was 'at least equal' to the new position of Principal, Demonstration Elementary School and that, therefore, the matter was not a new position. So the board's action was annulled.

The scope of judicial review in a case of this kind is precise and well understood. The court must determine two questions: (a) whether the act reviewed is within the statutory power of the public agency; and (b) if it is, whether the decision within the frame of power is arbitrary (Matter of Marburg v. Cole, 286 N.Y. 202, 36 N.E.2d 113, 136 A.L.R. 734).

The power of the Board of Education to create new positions which in its judgment are required is expressly vested by statute and it is placed beyond all doubt (Education Law, Consol.Laws, c. 16, § 2554, cf. Matter of Disbrow v. Board of Education of New Rochelle, 276 App.Div. 1015, 95 N.Y.S.2d 411). The questions of wisdom, necessity and policy are for the board, not the court (Matter of Jaffe v. Board of Education of City of New York, 265 N.Y. 160, 164--165, 192 N.E. 185, 186).

There was here no unlawful delegation of authority to any local board. The undisputed official documents in the record show the City Board of Education created the new title and temporarily filed it because it deemed the existing principal list inappropriate.

The wisdom of the decision could be arguable one way or another. But because it is disputed on the record leaves no room for purported fact-finding for the court to hold as a matter of law that the new type of principalship was unnecessary or that it was the same as the old one.

The board's judgment, as expressed in its official record, was that, in obtaining flexibility in the decentralized schools, the principalship 'is the pivotal...