
    [655 NE2d 647, 631 NYS2d 551]
    Reform Educational Financing Inequities Today (R.E.F.I.T.) et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued January 3, 1995;
    decided June 15, 1995
    
      POINTS OF COUNSEL
    
      Kay Collyer & Boose, New York City (Daniel P. Levitt of counsel), and Cooper, Sapir & Cohen, P. C, Hempstead (Robert E. Sapir of counsel), for appellants.
    I. Levittown’s "gross and glaring inadequacy” caveat may be satisfied by proof of sufficiently changed circumstances, and does not require proof that students are denied some undefined "minimum” level of education. II. The demonstrated worsening of circumstances since 1982 supports the conclusion that the school finance system now violates the State Constitution’s Education Article. (Baker v Carr, 369 US 186.) III. If Levittown is now read to require proof that some minimum level of education has been denied, rather than proof of sufficiently changed conditions, the 12-year-old decision should be modified or overruled. IV. Should the school finance scheme, with its escalating inequities, somehow pass muster under the Education Article, this Court should find that it violates the State Constitution’s Equal Protection Clause, modifying or overruling Levittown if necessary. (San Antonio School Dist. v Rodriguez, 411 US 1; Matter of Levy, 38 NY2d 653, 429 US 805; Papasan v Attain, 478 US 265; People v Barber, 289 NY 378; Immuno AG. v 
      
      Moor-Jankowski, 77 NY2d 235; People v Dunn, 77 NY2d 19; People v Harris, 77 NY2d 434.)
    
      Dennis C. Vaeco, Attorney-General, Albany (Daniel Smirlock, Jerry Boone and Peter H. Schiff of counsel), for Edward V. Regan and others, respondents.
    I. Plaintiffs’ allegations as to the disparities in the educational opportunities offered by wealthier and poorer school districts do not state a claim for relief under the Education Article of the State Constitution. (Judd v Board of Educ., 278 NY 200.) II. The complaint fails to state a cause of action for a violation of the State Equal Protection Clause. (San Antonio School Dist. v Rodriguez, 411 US 1; Under 21 Catholic Home Bur. v City of New York, 65 NY2d 344; Golden v Clark, 76 NY2d 618; Plyler v Doe, 457 US 202; Kadrmas v Dickinson Pub. Schools, 487 US 450; Schneider v Sobol, 76 NY2d 309; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Maresca v Cuomo, 64 NY2d 242.)
    
      DeGraff, Foy, Holt-Harris & Medley, Albany (Robert E. Biggerstaff and Glen P. Doherty of counsel), for New York State Association of Small City School Districts, Inc., amicus curiae.
    
    I. The great disparities in levels of resources available among the school districts for support of educational programs and facilities satisfy Levittown’s "gross and glaring inadequacy” proviso. II. There are great disparities among schools with respect to student needs; schools with high concentrations of poverty and minority populations, including those in small cities, have much greater educational and social burdens which are not adequately funded; that failure results in loss of educational opportunities particularly for those students with the greatest needs; this failure constitutes a gross and glaring inadequacy in the State’s system of financing education. (McInnis v Shapiro, 293 F Supp 327, affd sub nom. McInnis v Ogilvie, 394 US 322; Burruss v Wilkerson, 310 F Supp 572, 397 US 44.) III. The Court should not hesitate to acknowledge that the present educational inequities and disparities satisfy the gross and glaring inadequacy proviso of Levittown since the educational community of experts have acknowledged the failure of the system to educate all children.
    
      Helen Hershkoff, New York City, Donald Shaffer, Arthur Eisenberg and Beth Haroules for the American Civil Liberties Union and others, amici curiae.
    
    I. New York’s school financing system violates Federal as well as State equal protection guarantees. (San Antonio School Dist. v Rodriguez, 411 US 1; 
      Plyler v Doe, 457 US 202; Papasan v Attain, 478 US 265.) II. New York’s system of financing public education violates the constitutional guarantee set forth in the Education Article of the State Constitution.
    
      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella, Leonard Koerner and Pamela Seider Dolgow of counsel), for City of New York and others, amici curiae.
    
    Based on, inter alla, the gross and glaring inadequacies in the New York State scheme of financing education particularly with respect to at-risk children, i.e., children needing special education or from concentrated poverty, minorities and children of limited English proficiency, as well as over 12 years of legislative inaction, the courts below erred in precipitously dismissing the complaint for failure to state a cause of action. (Board of Educ. v Nyquist, 57 NY2d 27, 459 US 1139; Aspira v Board of Educ., 423 F Supp 647; People v Bing, 76 NY2d 331.)
    
      Juan A. Figueroa, New York City, and Sandra Del Valle for Puerto Rican Legal Defense and Education Fund, Inc., amicus curiae.
    
    The current school financing system violates the Equal Protection Clause of the New York State Constitution. (Board of Educ. v Nyquist, 57 NY2d 27; Plyler v Doe, 457 US 202; Hobson v Hansen, 269 F Supp 401, 393 US 801, affd sub nom. Smuck v Hobson, 408 F2d 175; Matter of Alban v County of Nassau, 89 AD2d 340, 59 NY2d 731; Matter of District 27 Community School Bd. v Board of Educ., 130 Misc 2d 398; Alevy v Downstate Med. Ctr., 39 NY2d 326; Washington v Davis, 426 US 229; Arlington Hgts. v Metropolitan Hous. Corp., 429 US 252; Columbus Bd. of Educ. v Penick, 443 US 449; Arthur v Nyquist, 573 F2d 134.)
    
      Michael A. Rebell Associates, New York City (Michael A. Rebell and Robert L. Hughes of counsel), for Campaign for Fiscal Equity, Inc., amicus curiae.
    
    I. The present State education financing scheme results in "gross and glaring” inadequacies. II. The State education aid scheme is no longer rationally related to a legitimate State purpose. (San Antonio School Dist. v Rodriguez, 411 US 1; People v Carter, 80 Misc 2d 1081; Maresca v Cuomo, 64 NY2d 242; Wiggins v Town of Somers, 4 NY2d 215; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Warder v Board of Regents, 53 NY2d 186.) III. Because the Legislature has abdicated its responsibility to remedy the inequities in the State educational finance system, this Court should now provide relief.
   OPINION OF THE COURT

Levine, J.

In this action for declaratory judgment we are asked to determine whether plaintiffs have stated a cause of action in their pleadings and supporting papers in which they seek a declaration that New York’s system for financing its public elementary and secondary schools is unconstitutional.

Plaintiffs, Reform Educational Financing Inequities Today (R.E.F.I.T.), a not-for-profit membership organization suing on behalf of itself and 40 member school districts, the Boards of Education of 21 Long Island school districts participating individually, individual taxpayers, parents, and public school students residing in participating school districts, allege in their complaint that the statutory scheme by which New York finances its public schools violates the Education Article of the New York Constitution (art XI, § 1), and the Equal Protection Clauses of the Federal and State Constitutions. Supreme Court dismissed plaintiff’s complaint for failure to state a cause of action (152 Misc 2d 714), and the Appellate Division modified, on the law, by adding a provision to the Supreme Court judgment declaring New York’s school financing scheme constitutional and, as so modified, affirmed (199 AD2d 488). We agree with the courts below.

Our State Constitution requires that "[t]he legislature shall provide for maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (art XI, § 1). In Board of Educ., Levittown Union Free School Dish v Nyquist (57 NY2d 27) (hereinafter Levittown), this Court held that this constitutional provision does not mandate that all educational facilities and services be substantially equal throughout the State. Rather, article XI, § 1 was intended to require the Legislature to provide a State system of free schools availing all of the State’s children of a "sound basic education” (id., at 48).

Plaintiffs in this action do not claim that students in their district are receiving something less than a sound basic education. Rather, their pleadings and supporting papers demonstrate that there now exists a greater disparity in the amount of money spent per pupil in property-poor as compared to property-rich school districts than the disparity in existence at the time Levittown was decided. Plaintiffs now claim that this disparity demonstrates a gross and glaring inadequacy in the State’s school financing scheme, and that this showing of great disparity calls into question the constitutionality of the financing scheme.

Plaintiffs’ argument rests on their assertion that Levittown left the door open for a challenge to the constitutionality of the educational financing structure on the basis of gross and glaring inadequacy in the funding of education and that such inadequacy can be demonstrated by extreme disparities in funding. However, even a claim of extreme disparity cannot demonstrate the "gross and glaring inadequacy” (id., at 48) we referred to in Levittown.

The Education Article does not by its express terms contain an egalitarian component. Nor does a study of the history of the Article reveal an intent to preclude disparities in the funding for education or in relative educational opportunities among the State’s school districts. Instead, "the evident purpose of [the Education Article] was to deprive the legislature of discretion in relation to the establishment and maintenance of common schools, and to impose on that body the absolute duty to provide a general system of common schools” (3 Lincoln, Constitutional History of New York, at 554). Thus, the primary aim of the legislation was to constitutionalize the established system of common schools rather than to alter its substance (see, e.g., Report of Comm on Education and Funds Pertaining Thereto, 2 Documents of NY Constitutional Convention of 1894, Doc No. 62, at 3; Judd v Board of Educ., 278 NY 200, 210). That system consisted of 11,778 local school districts with varying amounts of property wealth which offered significantly disparate educational opportunities (Fortieth Ann Report of State Superintendent of Public Instruction, 6 NY Assembly Documents of 1894, Doc No. 42, at 76-83, 88-95). Clearly, equal educational opportunity was not the intended result of the amendment — an adequate education was. Thus, it was anticipated that the amendment would only affect places in the State where the common schools were not adequate (3 Revised Record at Constitutional Convention of 1894, at 695).

Therefore, even accepting plaintiffs’ allegations of gross disparities between the amount of money spent on students in property-poor school districts and property-rich school districts, their cause of action based on a violation of the Educatian Article due to such disparities cannot survive this motion to dismiss. Giving plaintiffs’ submissions the benefit of every favorable inference, they simply do not state a claim that these disparities have caused students in the poorer districts to receive less than a sound basic education, which is all that they are guaranteed by our Constitution. Accordingly, the order of the Appellate Division, insofar as it affirmed dismissal of the cause of action based on the Education Article of our State Constitution, should be affirmed, without prejudice, however, to the plaintiffs, if so advised, to apply at the trial court for leave to amend the complaint (CPLR 3211 [e]; see, People v New York City Tr. Auth., 59 NY2d 343, 350).

Moreover, neither in their pleadings and other submissions on this motion to dismiss, nor in their argument before this Court have plaintiffs advanced a legal or factual basis for us to overrule Levittowris equal protection analysis under the State and Federal Constitutions. In Levittown and again in Campaign for Fiscal Equity v State of New York (86 NY2d 307 [decided today]), we have made clear that the State educational financing system will be upheld if it is supported by a rational basis. The desire to provide local control of education provides such basis. As plaintiff’s other equal protection arguments are dependent upon this Court adopting a more exacting standard, those equal protection challenges must also fail.

Finally, rather than affirm the Appellate Division’s broad and definitive declaration of the constitutionality of the State educational financing system, we modify to declare that the school financing scheme of the State of New York has not been shown in this case to be unconstitutional (see, Campaign for Fiscal Equity v State of New York, supra).

Accordingly, the order of the Appellate Division should be modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur; Judge Smith concurring only in result.

Order modified, etc. 
      
       Unlike in City of New York v State of New York (86 NY2d 286 [decided today]), the defendants have not raised lack of capacity to sue as a defense. Thus we do not reach that issue.
     