Footnotes
1 After the Appellate Division's decision, the United States
Supreme Court decided Gonzaga University v Doe (536 US 273
(/supct-cgi/get-us-cite?536+273) [2002]). Though not a Title VI
case, Gonzaga reinforces the conclusion the Appellate Division
correctly drew from various federal circuit court decisions: that
where a statute does not clearly and unambiguously create an
implied private right of action, it also does not create rights
enforceable under 42 USC § 1983 (/uscode/42/1983.html).
Plaintiffs' only argument to distinguish their case from Sandoval
was that they brought their disparate impact claim under section
1983, but Gonzaga shows that this distinction is unavailing, as is
plaintiffs' further attempt to distinguish Gonzaga.
2 The composition of the Board of Education and its
responsibilities and the Chancellor's have changed substantially
since trial ( see L 2002, ch 91, §§ 6, 11, 12). We are, of course,
bound by the record, which has been subjected to adversarial
scrutiny, and do not consider post-trial factual materials.
3 By contrast, the State argues that by showing that the
outputs are good enough -- in particular, that City schoolchildren
perform satisfactorily on certain standardized tests -- it has
obviated inquiry regarding the inputs. The State reasons that
many children come to City schools with socioeconomic and
cultural backgrounds that put them at risk of academic failure, as
the evidence confirms. Therefore, the State continues, while the
City schools cannot necessarily be blamed for bad results, they
surely should receive full credit for any good results. Indeed they
should. But the outputs here do not support a judgment for the
State.
While the State urges an affirmance based on what it considers
good outputs, the dissent -- relying on Paynter -- suggests that
there is something "inconsistent" about even discussing them
(dissent at 9 n 6). Paynter holds that proof of inadequate inputs
is necessary for an Education Article claim, not that such proof is
sufficient for such a claim. Thus, our discussion of outputs is
consistent with both Paynter and CFE -- which contemplated
cautious use of output evidence -- as well as responsive to an
argument the State made.
4 Some facts that the trial court classified as purely "physical"
facilities inputs are inseparable from overcrowding and excessive
class size -- conditions whose measurable effect on students
plaintiffs have shown. One symptom of an overcrowded school
system is the encroachment of ordinary classroom activities into
what would otherwise be specialized spaces: libraries,
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