End of Life Decisions – A Fundamental Right?

Tara Silk – Albany Government Law Review

I. Introduction

            The cancer diagnoses of two young women recently debated in the media have shown a spotlight on the government’s control involving very personal medical decisions.[1] The two cases are different in that one involved the law actively making a teenage girl get treatment[2] and the other examined what limitations the law can place on choices that individuals can make when treatment is no longer effective.[3] While the medical decisions made by the women are inherently personal in nature, they are still controlled by law, and due to existing rules, both are unable to carry out their wishes exactly as they would want.[4] This may seem like an area in which the law should not be so restrictive—is not the right to die the most essential liberty interest that should be protected by the Fourteenth Amendment?

II. Two Women’s Decisions

A. Brittany Maynard

The young woman Brittany Maynard captured media attention in the fall of 2014 by her public decision to choose to end her life on her own terms.[5] Diagnosed with brain cancer on New Year’s Day 2014, the twenty-nine-year-old at first sought treatment.[6] She had a partial craniotomy and a partial resection of her temporal lobe.[7] Sadly, even after the radical surgery, her tumor came back, and she was diagnosed with stage four glioblastoma.[8] She was given a prognosis of six months to live.[9] Facing a reality that there was no treatment for her and that she potentially faced an excruciating debilitative and painful progression as a result of her tumor,[10] Maynard made a deliberative decision to pursue ‘death with dignity’, an option that allows a patient to get a prescription for life-ending medication that can be taken by the patient when he or she chooses.[11] Maynard took the medication and passed way on November 1, 2014.[12]

 B. Current Law

Maynard made her decision very public in an attempt to advocate for ‘death with dignity’ an option she was able to choose, but one that is not always available to others suffering in similar situations.[13] While it has been established that one of the liberties granted to Americans by the Fourteenth Amendment is the right for a competent adult to refuse life sustaining treatment,[14] affirmative action to ends one’s life is not.[15] Organizations fighting for physician assisted suicide have be around for over thirty years,[16] yet as of November 2014 only Oregon, Washington, Vermont, Montana, and New Mexico allow patients to get this assistance.[17] Maynard herself, originally not a resident of one of these five states, had to go through the ordeal of moving and establishing residency in Oregon, a process that required resources that she argued not everyone who need this option have.[18] In 1994, Oregon was the first state to allow ‘Death with Dignity’, an act voted in by its residents.[19] The Act contains very specific restrictions on who qualifies and how one is able to go about getting the medication prescription.[20] While there may be concerns of misuse, since 1997 1,173 patients in Oregon have received prescriptions with 752 dying after taking the medication,[21] these are not numbers that would suggest abuse.

Maynard’s advocacy is making a difference in galvanizing other states to allow for similar assistance in dying.[22] In early January 2015, Maynard’s original home state of California put forth a potential bill that would allow terminally ill patients with six months to live to get a lethal prescription from a physician.[23] While in previous years similar bills had been put forward in the state and failed, Maynard’s story may be the factor that makes a difference this time.[24] New York, in January 2015, also introduced a new bill that would allow for a similar legal right for a terminal patient to obtain medication to aid in the dying process.[25]

C. Cassandra C.

This January 2015, the story of another young woman with cancer was in the headlines, seventeen-year-old Cassandra C.[26] The Connecticut resident had been diagnosed with Hodgkin’s lymphoma in September and did not want to receive chemotherapy treatment. Cassandra’s mother was in agreement with her daughter’s decision stating that, “‘even years ago- [Cassandra] said that if ever she had cancer . . . she would not put poison into her body’”.[27] Cassandra and her mother missed appointments that resulted in the state Department of Children and Families to get involved.[28] While Cassandra’s mother stated in an interview that “‘[i]t’s her [Cassandra’s] body, and she should not be forced to do anything with her body”, that was not the way the law saw the issue.[29] The Connecticut Supreme Court on January 8th, 2015 ruled that the minor must continue to receive chemotherapy treatment, a treatment that would give the girl an eighty-five percent chance of survival, but without which she would likely die within two years.[30]

D. Current Law

At seventeen Cassandra is considered a minor in the eyes of the law. While competent adults are constitutionally allowed to refuse medical treatment,[31] that same choice for minors is not as clear.[32] Cassandra’s case was the first time Connecticut Supreme Court examined the “mature minor doctrine” according to Cassandra’s attorney.[33] The Court ruled that Cassandra at trial failed to show that she was mature to make her own medical decisions.[34]

The question remains, should a court get to dictate that one has to get treatment? In September 2015 Cassandra will be eighteen[35] and then she will be able to make her own decisions regarding any medical intervention. How much of a change in maturity will she undergo in seven months? The decision by the Court in this case may seem like the logical one given that Cassandra’s type of cancer is statistically very treatable,[36] but chemotherapy treatment is not without its risks.[37] While many of the side effects of chemotherapy discontinue when treatment ends, there can be some serious ones that may not occur until after treatment is over.[38]   These can include long lasting consequences like heart problems, kidney problems, infertility, or even the risk of a second cancer.[39] Should the government be able to make someone take treatment when that can result in the same outcome the individual already is suffering from?

III.            Conclusion

In Cassandra’s case, the law dictated that she must receive treatment even when she did not want it.[40] For Brittany Maynard, she had to leave California because the treatment she sought was illegal there.[41] Freedom is synonymous with the American life. Yet, when it comes to what some would say is the most basic of liberties, the right to control one’s own medical decisions, the law as it stands would not let these two women make the decision they wanted. The Supreme Court agrees to at least some extent that medical decisions are “deeply personal” and part of a “patient’s liberty,”[42] but that liberty is qualified. When given the opportunity to say the same for doctor assisted suicide, the argument was made that the government did not consider it a fundamental right.[43] Minors’ freedom to make their own medical decisions is also limited.[44] Given these two restrictions, what may seem, at its heart, a freedom issue, one’s potential end of life choices, can, under current laws, be not much of a personal decision.

[1] See Associated Press [AP], Brittany Maynard, 29, Kills Herself Under Oregon’s ‘Death with Dignity’ Law, The Guardian (Nov. 3, 2014), http://www.theguardian.com/us-news/2014/nov/03/terminally-ill-oregon-death-with-dignity-brittany-maynard; Dave Collins, Connecticut Court to Hear Case of Teen Refusing Chemotherapy, Yahoo.com (Jan. 6, 2015), http://news.yahoo.com/connecticut-court-hear-case-teen-refusing-chemotherapy-164746613.html.

[2] Collins, supra note 1.

[3] See AP, supra note 1.

[4] See id.; Collins, supra note 1.

[5] AP, supra note 1.

[6] Brittany Maynard, My Right to Death with Dignity at 29, CNN.com, http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/ (last updated Nov. 2, 2014).

[7] Id.           

[8] Lindsey Bever, Cancer Patient Brittany Maynard, 29, has Scheduled her Death for Nov. 1, Wash. Post (Oct. 8, 2014), http://www.washingtonpost.com/news/morning-mix/wp/2014/10/08/terminally-ill-brittany-maynard-29-has-scheduled-her-death-for-nov-1/.

[9] Id.

[10] Maynard, supra note 6 (“[D]octors prescribed full brain radiation. . . . [and] [m]y scalp would be left covered with first-degree burns. My quality of life, as I knew it, would be gone . . . . But even with palliative medication, I could develop potentially morphine-resistant pain and suffer personality changes and verbal, cognitive and motor loss of virtually any kind.”).

[11] Id.

[12] Catherine E. Shoichet, Brittany Maynard, Advocate for ‘Death with Dignity,’ Dies, CNN.com, http://www.cnn.com/2014/11/02/health/oregon-brittany-maynard/index.html (last updated Nov. 3, 2014) (emphasis added).

[13] See AP, supra note 1 (only five states allow assistance in dying).

[14] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278, 279 (1990).

[15] See Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[16] Sarah Childress, The Evolution of America’s Right-to-Die Movement, PBS.org (Nov. 13, 2012, 9:12 PM). http://www.pbs.org/wgbh/pages/frontline/social-issues/suicide-plan/the-evolution-of-americas-right-to-die-movement/ (the first right to die organization in the U.S. was the Hemlock Society founded in 1980 by Derek Humphry).

[17] AP, supra note 1.

[18] See Maynard, supra note 6 (“[E]stablishing residency in the state to make use of the law required a monumental number of changes. I had to find new physicians, establish residency in Portland, search for a new home, . . . my husband, Dan, had to take a leave of absence from his job. The vast majority of families do not have the flexibility, resources and time to make all these changes.”).

[19] Childress, supra note 16.

[20] See Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800–127.897 (2015).

[21] Oregon’s Death with Dignity Act – 2013, Public.Health.Oregon.Gov (last visited Jan. 23, 2015), http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year16.pdf.

[22] See, e.g., The Times Editorial Board, Editorial Californians Deserve the Right to Die with Dignity, LA Times (Jan. 19, 2015), http://www.latimes.com/opinion/editorials/la-ed-right-to-die-legislation-california-20150120-story.html.

[23] Id.

[24] Id.

[25] H.R. 2129, 238th Gen. Assemb., Reg. Sess. (N.Y. 2015), available at http://assembly.state.ny.us/leg/?default­_fld=&bn=A02129&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y.

[26] Collins, supra note 1.

[27] Id. 

[28] Associated Press [AP], Conn. Supreme Court Rules Teen Can’t Refuse Chemo, NECN, http://www.necn.com/news/new-england/State-Supreme-Court-Hears-Arguments-in-Teen-Chemotherapy-Case-Cassandra-Connecticut-287933331.html (last updated Jan. 9, 2015)

[29] Elizabeth A. Harris, Connecticut Teenager with Cancer Loses Court Fight to Refuse Chemotherapy, N.Y. Times, Jan. 9, 2015, http://www.nytimes.com/2015/01/10/nyregion/connecticut-teenager-with-cancer-loses-court-fight-to-refuse-chemotherapy.html?_r=0.

[30] Id.

[31] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990).

[32] Doriane Lambelet Coleman & Philip M. Rosoff, The Legal Authority of Mature Minors to Consent to General Medical Treatment, 131 Pediatrics 786, 790–91 (2013) (different states’ laws regulate what type of consent minors can give).

[33] Collins, supra note 1.

[34] Harris, supra note 29.

[35] AP, supra note 28.

[36] Id.

[37] Chemotherapy, Mayo Clinic, http://www.mayoclinic.org/tests-procedures/chemotherapy/basics/risks/prc-20023578 (last visited Jan. 23, 2015).

[38] Id.

[39] Id.

[40] Harris, supra note 29.

[41] See The Times Editorial Board, supra note 22.

[42] See Cruzan v. Dir., Mo. Dep’t of Health, 497 US 261, 289 (1990) (ruling that the Fourteenth Amendment allowed one to refuse medical intervention).

[43] See Washington v. Glucksberg, 521 US 702, 728 (1997).

[44] See Coleman & Rosoff, supra note 32.

When the Legislature Requested the Governor to Investigate Its Own Operations

By Bennett Liebman
Government Lawyer in Residence

In light of the longstanding enmity and the assorted separation of powers/turf wars between the executive and the legislature in New York State, it may come as a surprise that once upon a time the leaders of the State legislature actually requested the governor to appoint a special prosecutor to investigate the legislature. Yet, this is exactly what happened in 1943 when the legislature asked Governor Thomas Dewey to appoint a special prosecutor to investigate the legislature.

The background is what sets this episode apart. Governor Dewey, who was elected governor in 1942, was convinced that the Albany City and Albany County governments – controlled by the infamous Democratic machine of Dan O’Connell – were thoroughly corrupt. During Dewey’s unsuccessful 1938 gubernatorial run against Governor Herbert Lehman, Dewey had regularly accused the O’Connell regime  of massive corruption.[1] In the 1938 election, won by Lehman by less than 70,000 votes, the County of Albany provided a large, 20,500-vote margin for Lehman.[2] Albany was the only county outside of New York City to vote for Lehman, and in the city of Albany, 94% of the registered voters were counted for Lehman.[3]

Once elected governor in 1942, Dewey set his sights on the O’Connell team. He ordered investigations by several agencies against Albany County. The Tax Department began looking at tax assessments in Albany County,[4] and an Election Frauds Bureau in the office of the Attorney General began an investigation into voting registration in Albany County. Eventually, in December of 1943, Governor Dewey appointed a special prosecutor to investigate violations of the Election Law and “the provisions of the Penal Law relating to crimes against the elective franchise”[5] in Albany County or in subdivisions of Albany County.

The O’Connell machine was not one to sit idly by, and the Democratic district attorney for Albany County, John Delaney, in the fall of 1943, served subpoenas on the Commissioner of Taxation and Finance, the State Comptroller and the former secretary  to the Clerk of the Assembly demanding all the appropriations of the State legislature since 1935, including all payments and vouchers. See Moore v. Delaney, 180 Misc. 844 (Sup. Ct., Albany County, 1943). District Attorney Delaney alleged that he had “information in his possession which leads him to the belief that the crimes of larceny, bribery and corruption may have been committed by legislative officials in the expenditures of public moneys.” Id. at 848. Since the Republican Party held the majority in both houses of the legislature, the subpoenas were regarded as the O’Connell effort to strike back at Governor Dewey by investigating the Republicans in the legislature.

The Commissioner of Taxation and Finance and the Comptroller sued to quash the subpoenas and the State Supreme Court agreed with their argument. The court found that the subpoenas were “so broad and comprehensive and cover such a period of time that it is impossible for the court to tell whether all the matters required to be produced by them have any relevancy to the alleged crimes which the grand jury proposes to investigate.” Id.

As to the former secretary to the Clerk of the Assembly, the court found the subpoenas to be valid. The court stated “that it is a simple subpoena, regular in form, and no valid reason has been shown why it should be quashed.” Id.

While the legislature was able to avoid the initial thrust of the O’Connell counterattack, there was no assurance that the legislature would escape a properly constructed inquiry from Albany County district attorney Delaney.

To battle the Albany County district attorney, the legislative leaders clearly decided to forget about any separation of powers issues. They directly asked the governor to intervene to assist them and prevent the Albany County investigation. The leaders of both houses[6] on December 19, 1943, wrote Governor Dewey alleging that the Albany County district attorney “was instituting and threatening to institute certain prosecutions against some of the members of the Legislature and its employees, unless the Attorney-General ceased his investigation into the city and county of Albany.” The threat of this investigation “must have grave consequences upon the proper functioning of government in the State and upon the respect of the people for our democratic system…. It is intolerable that the Legislature of a State or its individual members should be harassed by any local agency trying to protect its political sponsorship.”[7]

The leaders urged the governor “to supersede the district attorney of the county of Albany by the Attorney-General of the State and to designate a person of unimpeachable reputation and character and great knowledge of government to conduct a fearless and impartial investigation into these matters.” The leaders pledged “unlimited assistance” to the investigation.[8]

Based upon this request, Governor Dewey on the next day[9] superseded the Albany County district attorney and prevented him from continuing his investigation of the State legislature. Instead, Governor Dewey, in an extremely broad designation statement, ordered the Attorney-General to investigate and prosecute “any and all crimes and willful misconduct in public office heretofore or hereafter committed or alleged to have been committed in the county of Albany by any member, officer , employee or agent or former member, officer, employee, or agent of the Legislature of the State of New York.”[10]

One day after superseding the Albany County district attorney, the governor and the Attorney General named Hiram C. Todd to the post of the legislative special prosecutor.[11] Todd was a corporate attorney in New York City who had served at several times for past Democratic governors as a special prosecutor.  He was perhaps best known for his investigation of the failure of the City Trust Company in 1929.

Very little actually came  of the Todd investigations. No criminal wrongdoing was ever established. He worked for nearly two years on his investigation of the legislature. His work, however, appeared to confirm the cynical observation that he was serving as – what might be currently termed – a “tool” of the Dewey administration. The New York Times wrote that he “turned a Democratic investigation of Republicans into a Republican investigation of the Democratic leadership.”[13]

Todd was clearly positive about the overall work of the legislature and its members.[14] His concluding grand jury report found that “the legislature… functions with general efficiency and rectitude. The fact that some wrongs have been brought to light … is counter-balanced by the fact that the general picture presented to the grand jury of legislative operations is of earnest men diligently engaged upon a public task in an earnest manner.”[15] The New York Herald Tribune, however, appreciated the work of Mr. Todd which, while “not sensational,” was “fair” honest and thorough.”[16]

Todd concluded his investigation in late 1945 having established no criminality in the State legislature. The 22-month investigation produced “one indictment, three presentments, two citations for contempt and no convictions.”[17]

A decade later the Moreland Act inquiry into State regulation of the harness racing industry showed considerable corruption within the State legislature at the time of the Todd inquiry, making the judgments of the Todd inquiry of somewhat questionable value.[18] The New York Times had summarized the Moreland Act report by stating that “influential politicians acquired substantial blocks of stock in tracks and racing associations, generally just before an association received a license, or existing associations obtained extended racing dates. Public pressure to increase the state share of the betting revenue was ignored by the Legislature. Stock was obtained by the politicians at bargain prices. Shares were held secretly in the names of friends and relatives and sold at fabulous gains.” Much of this was occurring at the time of Todd’s work and paints a far uglier picture than the portrait of earnestness found by the Todd inquiry.[19]
[1] “Dewey Condemns Machine in Albany,” New York Times, October 8, 1938; See also Warren Moscow, “O’Connell Takes Albany Party Post,” New York Times, October 30, 1945.

[2]  James A. Hagerty, “Lehman Is Victor by 67,506 Margin,” New York Times, November 10, 1938; Dewey pointed out the city of Albany had more registered voters than its adult population. See “Albany Vote Investigation Is Ordered by Gov. Lehman,” New York Herald Tribune, November 16, 1938.

[3] Id., Herald Tribune article.

[4] “State Opens Albany City Investigation,” New York Herald Tribune, August 28, 1943.

[5] “Designating the Attorney-General to Represent the People at Extraordinary Special and Trial Term of the Supreme Court, County of Albany,” Public Papers of Governor Dewey, pp. 272-275 (1943).

[6] These were the President Pro Tem of the Senate, the Speaker of the Assembly, and the Majority Leader of the Assembly.

[7] “Letter to the Governor from Legislative Majority Leaders Requesting Appointment of a Special Prosecutor to Investigate Charges of Legislative Corruption,” Public Papers of Governor Dewey, pp. 331-332 (1943). The text is also in “Dewey Supersedes Albany Democrats in State Inquiry,” New York Times, December 22, 1943.

[8] Id. at 332; See generally “Dewey Orders Investigation of Legislature,” New York Herald Tribune, December 22, 1943.

[9] The Herald Tribune states that the leaders met with Governor Dewey on the date of their letter, Sunday December 19, 1943. Id.

[10] “Designating the Attorney-General to Represent the People at Extraordinary Special and Trial Term of the Supreme Court, County of Albany, to Manage and Conduct Proceedings in Connection with Charges of Legislative Corruption,” Public Papers of Governor Dewey, pp. 274-276 (1943).

[11] “Special Prosecutor in Albany Probe,” Newsday, December 21, 1943; “Outfoxing the O’Connells” Brooklyn Daily Eagle, December 26, 1943, p. 24.

[12] The  New York Sun called Todd an “elderly silk stocking lawyer.” Paul Ward, “Dewey, Elected Largely On ‘Clean-Up’ Pledges, Loses Two Court Cases In Less Than 24 Hours,” New York Sun, July 23, 1944.

[13] See Moscow, supra note 1.

[14] “Calls Legislature Honest In General,” New York Times, October 25, 1945.

[15]  “Final Todd Grand Jury Report Gives Legislators Good Score,” New York Herald Tribune, October 25, 1945.

[16] “Neither Smear Nor Whitewash,” New York Herald Tribune, October 26, 1945.

[17] “Grand Jury Ends Albany Inquiry,” New York Times, December 14, 1945.

[18] “State Commission to Study, Examine, and Investigate State Agencies in Relation to Pari-mutuel Harness Racing,”  Report to Thomas E. Dewey, Governor (1954).

[19] Emanuel Perlmutter, “Politics and Raceways: Fortunes for Insiders,” New York Times, March 14, 1954.

The Case Law under the Moreland Act

By Bennett Liebman
Government Lawyer in Residence

Given the last two years of issues involving Moreland Act commissions in New York State, I thought it advisable to review the case law that has developed under the Moreland Act. It needs to be emphasized that this case law is basically aimed at investigations of State agencies and not the State legislature. The Moreland Act dates from 1907 and was clearly designed for and by Governor Charles Evans Hughes who took office after winning election in 1906. Hughes had made his mark in New York State government as the lead investigator of the committees investigating the gas industry and the life insurance industry, and it was widely assumed he would try to increase the power of the governor to pursue further investigations without seeking approval of the legislature. The act received its popular name from Sherman Moreland who was the sponsor of the legislation in the State Assembly.

Section six of the Executive Law, authorizes the governor  “at any time, either in person  or  by  one  or  more  persons  appointed  by  him  for  the  purpose,  to  examine  and investigate the  management and affairs of any department, board, bureau or commission of  the state.” The  statute  further empowers the governor  and  the  persons  appointed to a commission “to  subpoena  and  enforce  the  attendance  of witnesses, to  administer oaths and examine witnesses under oath  and  to  require  the  production  of any books or papers deemed relevant or material.” This language was in the original Moreland Act 1907. L. 1907, Ch. 539.  While a Moreland Act commission may only examine state departments, boards, bureaus or commissions, (and not the State legislature) when it examines such agencies, it has exceptionally strong powers. The decided cases involving the powers of a Moreland Act commission, appointed, are nearly unanimous in providing that such commissions have broad authority. The decisions, with one early exception, all support the subpoena powers given to a Moreland Act commission.

While the Moreland Act was in regular use from the time it was first enacted, there have been only been a limited number of cases that refer directly to the Act.[1] In the first fifty years that the Act was in effect, and when it was most frequently utilized by governors, there were relatively few cases that specifically involved the reach and effect of the Act.[2] Moreland Act commissions have rarely been resorted to in the years since the Rockefeller administration, but in two instances, (nursing homes in the 1970’s and government corruption in the 1980’s) considerable litigation arose from these investigations.

Early Decisions

The first time that the Act was mentioned was in People v. Anhut, 162 A.D. 517, 519 (1st Dept., 1914), which involved a prosecution that came about after the governor had established a Moreland Act commission to review State hospitals for the mentally ill. The court stated in regard to the Moreland Act, “The power of the Governor to appoint a committee and the authority of the latter to issue subpoenas and compel the attendance of witnesses is not denied.”

The Moreland Act was also a point of contention in the odd case of People v. Hebberd, 96 Misc. 617 (Sup. Ct. NY County, 1916) which is basically the one case questioning the authority of a Moreland Act commission. In 1915, Governor Whitman appointed a Moreland Act commissioner to examine and investigate the state board of charities. As a consequence of the investigation, criminal charges were brought against a number of individuals for criminal libel, for a conspiracy to avoid service of a subpoena, and a perjury prosecution against defendant Hebberd. The defendants had issued pamphlets concerning the charities that were the subject of the alleged criminal libel. The Moreland Act Commission determined to investigate the issuance of the pamphlets. It was alleged that the defendants conspired to avoid the service of a subpoena issued by the Commission and that defendant Hebberd committed perjury when he testified about the issuance of the pamphlets. The court found no basis for the criminal libel and further found that the Commission’s authority was simply to investigate charities, not to investigate the pamphlets. When the Commission determined to investigate the pamphlets and the authorship of the pamphlets, the court concluded, it was operating outside its authority as a Moreland Act Commission. The court stated, “But when the commissioner sought to inquire into acts of private individuals deemed hostile to the investigation conducted by him, for the purpose of ascertaining whether they were responsible for alleged libelous publications, which were calculated to belittle or injuriously affect the work of the commission, a serious question arises whether such an inquiry transcended his powers as commissioner, which were purely statutory and strictly confined to the provisions of the statute.” Id. at 631-632. The court found that the issues involving the authorship of the pamphlets were not proper subjects for this Moreland Act commission. Accordingly, there was no jurisdiction to issue a subpoena on this subject and the alleged perjurious testimony “was not material to the investigation which the commissioner was empowered to make, and therefore, under the Penal Law, the crime of perjury could not be established.” Id. at 650.

After the Hebberd case, no cases involving Moreland Act commissions were decided until after the  creation of the Moreland Act Commission investigating workers’ compensation and potential kickbacks in the medical industry in the early 1940’s  In Schiffman v. Bleakley, 46 N.Y.S.2d 353 (Sup. Ct., N.Y. County 1943), a doctor who had been subpoenaed by the Commission refused to testify stating that the commission had no power over him and that his constitutional rights were being denied. The court quickly dispensed with these arguments stating, “These contentions manifest an egotistical misunderstanding by petitioner as to the purpose of this Commission. It is a fact finding body. Its duties general, dealing with the practices of the Labor Department, the administration of the law and the effect on the Public. Its dealings with the petitioner are not personal but only incidenta to its fact finding. His importance as a witness is manifest in view of his extensive practice. He knows much of present methods. This is his opportunity to impart that knowledge to the Governor’s representatives.” Id. at 354. The court added, “The Commissioners have an unquestionable right to issue subpoenas.” Id .   In the case of Bleakley v. Schlesinger, 294 N.Y. 312 (1945), the Commission subpoenaed the books of an X-ray lab firm. The firm’s corporate secretary-treasurer refused to provide the records. The Court of Appeals held that the refusal to provide the subpoenaed records could provide the basis for a criminal contempt citation. The court found that “production of the books is a reasonable corporate requirement and the … officer, must either produce the wanted corporate books or give a reasonable explanation of his inability to do so, with the alternative of commitment. Id.at 317.

Harness Racing Investigation

A decade later in reviewing subpoenas issues by the Moreland Act Commission reviewing harness racing in the 1970’s, the courts similarly affirmed the powers of a Moreland Act Commission .  In Alexander v. New York State Com., 306 N.Y. 421 (1954), the Court of Appeals had to decide on the validity of subpoenas issued to apart-owner of a harness track, The owner had contended that they were too sweeping and were not relevant to the investigation of harness racing. The court upheld the subpoenas finding no issue as to their breadth, stating, “The commission will, of course, be restricted to such material as is relevant to the subject of the inquiry, but is not obliged to take petitioners’ word for what is or is not relevant.”

A similar challenge to a subpoena issued by the Moreland Act commission on harness racing was rejected in Weil v. New York State Com. to Investigate Harness Racing, 205 Misc. 614 (N.Y. Sup. Ct. 1954). In Weil, a series of individuals challenged the subpoenas issued by the Moreland Act Commission claiming that the commission lacked the power to issue the subpoenas, that the subpoenas were indefinite, and that the issuance of the subpoenas violated their constitutional rights. The court dismissed these arguments finding that the Commission had the clear “unquestionable right” to issue subpoenas and that there were no constitutional violations presented by the subpoena.

The petitioners argued that subpoenaing records of their involvement in racing outside New York State was beyond the power of the Commission. The court rejected this argument as well, finding that, despite the  “petitioners are enjoying privileges granted under licenses issued by this State, and their personal connection with harness racing and tracks outside is a legitimate subject of inquiry under the broad powers granted to the Governor by the Moreland Act to deal with matters affecting the public interest.” Id. at 619.

Nursing Home Investigations

While the nursing home investigations in the mid 1970’s did not bring any specific challenges to Moreland Act authority, litigation was brought involving the powers of a nursing home special prosecutor appointed under Section 63.8 of the Executive Law. Soon upon entering office, Governor Carey appointed both a Moreland Act Commission to investigate nursing homes, and, with Attorney General Lefkowitz, a special prosecutor under Section 63.8 of the Executive Law to “inquire into possible criminal violations in the nursing home industry and related matters.” Executive Order 3.4.[3] By contrast, in 1987, Governor Mario Cuomo, issued a single executive order, (Executive Orders 4.88 amended by 4.88.1)  establishing both a Moreland Act commission and through the attorney general’s office under Section 63.8 of the Executive Law an inquiry into “public peace, public safety and public justice.”

Section 63.8 had long been interpreted as authorizing only a broad inquiry into “public peace, public safety and public justice,” and had never been interpreted  to not authorize the Attorney-General to investigate a specific crime for the purpose of ascertaining whether a particular individual committed that crime. See Ward Baking Co. v. Western Union Tel. Co., 205 A.D. 723 (3rd Dept., 1923).  The general authority of the governor with the attorney general  to authorize a broad inquiry into public safety inquiry concerns was affirmed in  In Matter of Di Brizzi (Proskauer), 303 NY 206, (1951),  The Court of Appeals  held that Section 63.8 could be used for investigating organized crime and that the legislature could  confer authority upon an executive department to exercise subpoena power in connection with an investigation in aid of the executive function.[4] Similarly, in Greenspon v. Stichman, 12 N.Y.2d 1079 (1963), the Court of Appeals, without issuing an opinion, rejected the claim that combining the Moreland Act powers with Section 63.8  powers “violated the doctrine of separation of powers and the system of checks and balances provided for in the Constitution.” Id.

With the nursing home investigations, the operators of nursing homes argued that subpoenas issued by the special prosecutor appointed under Section 63.8 were invalid since they sought records from family run businesses and thus were similar to the inquiry rejected in Ward Baking . The Court of Appeals in Sigety v. Hynes, 38 N.Y.2d 260 (1975) found that since family run nursing homes were defined as hospitals  under the Public Health Law and thus  subject to State regulation, the Special Prosecutor under Section 63.8 was within  his rights in issuing a subpoena for the records of the nursing homes. The court recognized “that there exists a reasonable relationship between the action taken by the Governor, through the  , and the proper discharge of the executive function.” Id. at 266. Since the records of a nursing home were “not by …  nature a family business” the Special Prosecutor was authorized to subpoena its records. The Special Prosecutor, however, was not initially authorized to retain the subpoenaed records of nursing homes. The court found, further, that this was not within the Special Prosecutor’s powers under §63.8 as determined by Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243, 247 (1977). After this decision, the legislature amended the law to provide for a right of retention. L 1977, Ch. 451.

After Governor Carey issued and Attorney General Lefkowitz authorized a similar §63.8 special prosecutor in 1976 directed at private proprietary homes for adults (See Executive Order 3.36), the special prosecutor’s issuance of subpoenas was challenged. In Friedman v. Hi-Li Manor Home for Adults, 42 N.Y.2d 408 (1977), the Court of Appeals ruled that, given the close similarity between proprietary homes and nursing homes, the §63.8 special prosecutor had the right to issue subpoenas to proprietary homes and the landlords of such homes. The court found that there was little difference between a nursing home special prosecutor and a proprietary home special prosecutor. “Similarities between these two areas of activity are evident. To a large extent the consumers of care and service come from the same sector of our State’s population. Historically the great bulk of financial support has and does come from the public treasury, formerly in direct grants to the homes, now in indirect but equally significant subsidy routed through the residents of the homes.” Id. at 414.

In Hi-Li Manor, however, the court  refused to grant the Governor and the Attorney General carte blanche on §63.8 investigations. The court wrote that its decision “should not be understood as viewing subdivision 8 of section 63 as any reservoir of latent authority for investigations, however desirable they may be thought to be, into other areas of legitimate governmental concern or responsibility. Quite the contrary. In perspective we perceive recourse to this section as having been intended only when for compelling reasons reliance cannot or should not necessarily be placed on specific, individualized grants of authority from the Legislature.” Id. at 415. (  Id. at 417. Judge Cooke added, “Parenthetically, the suggested ad hoc approach would be impractical and self-defeating (e.g., when the Legislature is in recess, when powerful interests are involved, or when a politically sensitive investigation should be launched and there is a politically divided Legislature). An investigation, to be successful, must proceed promptly under an ever-present authority to conduct one.” Id.  at 420.

Despite the limitations in the Court of Appeals’ language on §63.8 authority, subpoenas issued pursuant to the §63.8 have been upheld in a series of cases including Hynes v. Moskowitz, 44 N.Y.2d 383 (1978); and  Doe v. Kuriansky, 59 N.Y.2d 836 (N.Y. 1983). See also Roseman v. Hymes, 1977 U.S. Dist. LEXIS 13024 (S.D.N.Y. Sept. 1, 1977).

Feerick Commission

There was no litigation under the Moreland Act until the State Commission on Government Integrity [Feerick Commission] was established in the late 1980’s. As stated previously, the Feerick Commission received its grant of powers both under the Moreland Act and under §63.8 of the Executive Law. All the attempts through the courts to restrict the powers of the Feerick Commission proved ultimately unsuccessful.

Some of the lawsuits brought against the Feerick Commission could be viewed as ancillary efforts to prevent the Feerick Commission from operating effectively. Rather than frontal attacks questioning the authority of the Feerick Commission, these suits were designed to make it more difficult for the  Feerick Commission to function.

An attempt to require the Feerick Commission to adhere to the provisions in Section 73 of the Civil Rights Law requiring that two members of the Commission be present whenever testimony was taken from a witness was rejected in Riker v. New York State Com. on Government Integrity, 153 A.D.2d 158 (3d Dep’t 1990). The court found that this requirement only applied to legislatively created temporary state commissions. It did not apply to a Moreland Act commission established by the governor.

Similarly, an attempt to prevent the State Board of Elections from providing records containing personal information to the Feerick Commission as a violation of the Personal Privacy Protection Law was denied in Building a Better New York Committee v. New York State Com. on Government Integrity, 138 Misc. 2d 829, (Sup. Ct. Albany Co.,1988). The court found that the Personal Privacy Protection Law authorized disclosure of personal information to “another agency if the record sought to be disclosed is necessary for the receiving agency to comply with the mandate of an executive order.” Id. at 834. In a follow-up to this decision, the plaintiff, having failed in his effort to block the transfer of the records from the Board of Elections, tried to utilize the Personal Privacy Protection Law to prevent the Feerick Commission from publicly disclosing the record. The Third Department found that the action was barred both by res judicata and that the data sought to be withheld from public disclosure did “not contain the type of records which the statute is intended to protect.”  The Personal Privacy Protection Law has no bearing on the issue of public access to the subject data because the file does not contain the type of records which the statute is intended to protect. Spargo v. New York State Com. on Government Integrity, 140 A.D.2d 26, 30 (N.Y. App. Div. 3d Dep’t 1988); app. denied 72 N.Y.2d 809 (1988).[5]

In Albany Industrial Dev. Agency v. New York State Com. on Government Integrity, 144 Misc. 2d 342 (Sup. Ct., Albany County, 1989) the plaintiffs who were municipal agencies and officers sued to quash a subpoena duces tecum issued by the Feerick Commission arguing that the investigation of the Commission was near completion. Therefore, a higher burden was placed on the Commission to justify its subpoenas. The court rejected this argument finding that “each of the challenged requests documents and records which are relevant and material to the Commission’s inquiry.” Id. at 344.

The more substantive challenges to the Feerick’s Commission’s powers came in the cases of New York State Com. on Government Integrity v. Congel, 156 A.D.2d 274 ( 1st Dep’t 1989) app, dismissed, 75 N.Y.2d 836 (1990) and New York Republican State Committee v. New York State Com. on Government Integrity, 138 Misc. 2d 790 (Sup. Ct., NY. County 1988) aff’d without opinion, 140 A.D.2d 1014 (1st Dep’t., 1988).

In the Congel case, the Pyramid Companies, a real estate development group, was   under investigation for its involvement in an election in the town of Poughkeepsie. The Feerick Commission issued subpoenas duces tecum for records of Pyramid, and the trial court refused to enforce the subpoenas. The trial court found that the Commission’s investigation had already been progressed to the point where the Commission had issued a preliminary report, and that the subpoenas were, accordingly, “for the purpose of ferreting out specific violations of law, a prosecutorial function not within the Commission’s purview.” 156 A.D. 2d at 277.The Appellate Division disagreed with the trial court. It found that the subpoenaed materials were relevant to the Commission’s inquiry. Id. at 278 and that “provided the materials are relevant to the proper purpose of the investigation, the subpoena’s demand for their disclosure must ordinarily be honored unless there is some sustainable claim of harassment or overbreadth.” Id. As a result, there was nothing “to prevent the Commission from obtaining material with incidental prosecutorial application, so long as the material is also relevant to the Commission’s proper objectives. Id. at 279. Based on the relevance of the subpoenaed materials, the subpoenas issued by the Feerick Commission were to be enforced.

A similar result obtained in the Republican State Committee case. The Republican State Committee was resisting subpoenas issued to obtain information on its housekeeping account. The argument was that “the Commission has overstepped its legal authority under the executive order and the Executive Law by issuing subpoenas to entities which are not either a ‘department, board, bureau or commission of the state’, and that the Commission’s investigatory power, and hence its subpoena power, is limited to State entities as described in Executive Law § 6.” 138 Misc. 2d 790 at 793. The Committee also claimed that the subpoenas could chill contributions to the party thereby violating the First Amendment.” Id. at 794.

The court disagreed. Citing the Schiffman case, supra, it found that the Committee was not the focus of the Commission’s fact finding but was incidental to its fact-finding purposes dealing with the Board of Elections and its enforcement of the campaign finance disclosure laws. The court found that the Feerick Commission, as a Moreland Act Commission and as supplemented by its powers under §63.8 of the Executive Law, had authority to issue the subpoenas. Id. at 795. Further, “the Commission has established its authority, and the relevance of the committees’ until now undisclosed financial records to a complete evaluation of the present campaign disclosure laws.” Id. at 796. The disclosure of the housekeeping accounts also had no chilling effect on First Amendment rights. Thus, the power of the Feerick Commission to issue subpoenas to non-government entities was clearly upheld.

Again, with the exception of the Hebberd case, judicial decisions have validated the powers of Moreland Act Commissions. The treatment of the Moreland Act Commissions by the courts validates the description of the law made by the New York Tribune  that the original legislation was signed by Governor Hughes. “This bill confers on the Governor almost unlimited powers along this line, powers that no Governor of the state has ever had before…Friends of the administration maintain that this bill is one of the most important of the year and that it will be an important factor in the clean government and welfare of the state.”[6] While the Moreland Act gives the governor no authority over the legislature, it possesses broad powers over those government entities that are subject to its jurisdiction.

[1] There are some opinions of the Attorney General that have mentioned generally the powers of a Moreland Act Commission. See 1939, Op.Atty.Gen. 125; 1927, Op.Atty.Gen. 301; 1909 Op.Atty.Gen. 276.

[2] While the courts may have rarely adjudicated the powers of a Moreland Act commission, in the case of  In re Second Report of November, 1968 Grand Jury of Erie County, 26 N.Y.2d 200, 215 (1970) the Court of Appeals declared, “And, of course, the Governor’s power to direct so-called Moreland Act investigations, always resulting in reports, has now become classic.”

[3] This was somewhat similar to the approach taken by Governor Rockefeller regard to investigating corruption or misconduct and government. He first appointed a special prosecutor pursuant to Section 63.8 of the Executive Law. See Executive Order 1.10. (September 8, 1962). Four months later, Governor Rockefeller issued Executive Order 1.11 which added the Moreland Act powers to the powers held by the special prosecutor under Section 63.8

[4] In a one sentence concurring opinion, Judge Fuld wrote, “Study of the Executive Order makes clear that the Governor acted under both section 8 and subdivision 8 of section 62 of the Executive Law and, that being so, there can be no doubt either as to the authority of the Governor to appoint the so-called Crime Commission or as to the power of that commission to issue the subpoena here in question.” 303 N.Y. at 218. Judge Fuld’s views suggest that the Moreland Act commission may provide an entity with more powers than an entity created solely under §63.8.

[5] Plaintiff Spargo also was involved with the Feerick Commission on the issue of proper venue on the issuance of compelling compliance with subpoenas. See Spargo v. New York State Com. on Government Integrity, 144 A.D.2d 897 (3d Dep’t 1988), app. dismissed  73 N.Y.2d 871 (1989). The venue issue also arose in the case of

New York Republican State Committee v. New York State Com. on Government Integrity, 138 A.D.2d 884 (3d Dep’t 1988), app. denied 72 N.Y.2d 803 (1988).

[6]  “Moreland Bill Signed,” New York Tribune, June 22, 1907 Pp. 1-2. See also “Legislature’s Work,” New York Tribune, June 27, 1907 Pg. 2 “One of the important measures of the year was the Moreland Bill empowering the Governor personally or by appointees to investigate every department or bureau or division of the state to ascertain the exact state of its business.”

New York State and the National Assessment of Educational Progress Tests

By Bennett Liebman
Government Lawyer in Residence

We confess to having limited expertise and no firm position on the issues surrounding the future of education funding in New York State. But we are bothered by the fact that objective data rarely seems to emerge in the public debate on this issue. To try to provide some hopefully objective data, we are posting the National Assessment of Educational Progress [NAEP] test results for New York State. NAEP bills itself as the “nation’s report card” and is regularly regarded in the media as the “gold standard” for educational testing data. (All cites are to the NAEP website at http://www.nationsreportcard.gov/)

The “NAEP is a congressionally authorized project of the National Center for Education Statistics (NCES) within the Institute of Education Sciences of the U.S. Department of Education.” Its report cards since 1969 “communicate … a continuing and nationally representative measure of achievement in various subjects over time.”

“NAEP is the only assessment that allows comparison of results from one state with another, or with results for the rest of the nation. The NAEP program helps states answer such questions as: How does the performance of students in my state compare with the performance of students in other states with similar resources or students? How does my state’s performance compare with the region’s? Are my state’s gains in student performance keeping up with the pace of improvement in other states?” Unlike other testing, there does not appear to be any way to teach or prepare students for the NAEP exams, and it is often quoted that ten points on the exam is the equivalent of a grade level.

We are posting NAEP’s own summaries of certain test results plus the direct links to these results.

National Long Term Trends from 2012

http://www.nationsreportcard.gov/ltt_2012/

  • Compared to the first assessment in 1971 for reading and in 1973 for mathematics, scores were higher in 2012 for 9- and 13-year-olds and not significantly different for 17-year-olds.
  • In both reading and mathematics at all three ages, Black students made larger gains from the early 1970s than White students.  Hispanic students made larger gains from the 1970s than White students in reading at all three ages and in mathematics at ages 13 and 17.
  • Female students have consistently outscored male students in reading at all three ages, but the gender gap narrowed from 1971 to 2012 at age 9.
  • At ages 9 and 13, the scores of male and female students were not significantly different in mathematics, but the gender gap in mathematics for 17-year-olds narrowed in comparison to 1973.

New York State Profile

 http://nces.ed.gov/nationsreportcard/states/ and go to New York for the general profile and for particular tests. The main chart on this page shows the results of NAEP testing in New York since the 1990’s

Mathematics: The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 48 points in 2013. This performance gap was not significantly different from that in 1990 (50 points)

Science: In 2011, the average score of eighth-grade students in New York was 149. This was lower than the average score of 151 for public school students in the nation

Reading: The percentage of students in New York who performed at or above the NAEP Proficient level was 37 percent in 2013. This percentage was greater than the nation (34 percent).

Student Characteristics: Number enrolled: 2,704,718 Percent in Title I schools: 98.0% With Individualized Education Programs (IEP): 16.6% Percent in limited-English proficiency programs: 7.6% Percent eligible for free/reduced lunch: 49.3% Racial/Ethnic Background: White: 48.2% Black: 18.4% Hispanic: 23.3% Asian: 8.3% Pacific Islander: 0.1% American Indian/Alaskan Native: 0.5% School/District Characteristics: Number of school districts: 728* Number of schools: 4817 Number of charter schools: 183 Per-pupil expenditures: $18,621 Pupil/teacher ratio: 12.9 Number of FTE teachers: 209,527

4th Grade Math NYS

In 2013, the average score of fourth-grade students in New York was 240. This was not significantly different from the average score of 241 for public school students in the nation.

The average score for students in New York in 2013 (240) was higher than their average score in 2011 (238) and in 1992 (218).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 38 points in 2013. This performance gap was not significantly different from that in 1992 (43 points). The percentage of students in New York who performed at or above the NAEP Proficient level was 40 percent in 2013. This percentage was greater than that in 2011 (36 percent) and in 1992 (17 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 82 percent in 2013. This percentage was not significantly different from that in 2011 (80 percent) and was greater than that in 1992 (57 percent).

In 2013, Black students had an average score that was 23 points lower than White students. This performance gap was narrower than that in 1992 (31 points).

In 2013, Hispanic students had an average score that was 19 points lower than White students. This performance gap was narrower than that in 1992 (32 points).

In 2013, male students in New York had an average score that was not significantly different from female students.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 21 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was narrower than that in 1996 (30 points).

State and nation both up 22 points from 1991-2013. State = 240 Nation = 241

8th Grade Math NYS

In 2013, the average score of eighth-grade students in New York was 282. This was lower than the average score of 284 for public school students in the nation.

The average score for students in New York in 2013 (282) was not significantly different from their average score in 2011 (280) and was higher than their average score in 1990 (261).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 48 points in 2013. This performance gap was not significantly different from that in 1990 (50 points).

The percentage of students in New York who performed at or above the NAEP Proficient level was 32 percent in 2013. This percentage was not significantly different from that in 2011 (30 percent) and was greater than that in 1990 (15 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 72 percent in 2013. This percentage was not significantly different from that in 2011 (70 percent) and was greater than that in 1990 (50 percent).

In 2013, Black students had an average score that was 32 points lower than White students. This performance gap was not significantly different from that in 1990 (39 points).

In 2013, Hispanic students had an average score that was 28 points lower than White students. This performance gap was not significantly different from that in 1990 (35 points).

In 2013, male students in New York had an average score that was not significantly different from female students.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 24 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was not significantly different from that in 1996 (29 points).

State up 21 points from1990-2013; Nation up 22 points. State – 282. Nation -284

4th Grade Reading NYS

In 2013, the average score of fourth-grade students in New York was 224. This was higher than the average score of 221 for public school students in the nation.

The average score for students in New York in 2013 (224) was not significantly different from their average score in 2011 (222) and was higher than their average score in 1992 (215).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 46 points in 2013. This performance gap was not significantly different from that in 1992 (46 points).

The percentage of students in New York who performed at or above the NAEP Proficient level was 37 percent in 2013. This percentage was not significantly different from that in 2011 (35 percent) and was greater than that in 1992 (27 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 70 percent in 2013. This percentage was not significantly different from that in 2011 (68 percent) and was greater than that in 1992 (61 percent).

In 2013, Black students had an average score that was 22 points lower than White students. This performance gap was not significantly different from that in 1992 (27 points).

In 2013, Hispanic students had an average score that was 23 points lower than White students. This performance gap was narrower than that in 1992 (42 points).

In 2013, female students in New York had an average score that was higher than male students by 6 points.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 26 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was narrower than that in 1998 (35 points).

State up 9 points from 1992-2013; Nation up 6 points. State = 224. Nation = 221.

8th Grade Reading NYS

In 2013, the average score of eighth-grade students in New York was 266. This was not significantly different from the average score of 266 for public school students in the nation

The average score for students in New York in 2013 (266) was not significantly different from their average score in 2011 (266) and in 1998 (265).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 46 points in 2013. This performance gap was not significantly different from that in 1998 (43 points).

The percentage of students in New York who performed at or above the NAEP Proficient level was 35 percent in 2013. This percentage was not significantly different from that in 2011 (35 percent) and in 1998 (32 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 76 percent in 2013. This percentage was not significantly different from that in 2011 (76 percent) and in 1998 (76 percent).

In 2013, Black students had an average score that was 25 points lower than White students. This performance gap was not significantly different from that in 1998 (28 points).

In 2013, Hispanic students had an average score that was 25 points lower than White students. This performance gap was not significantly different from that in 1998 (28 points).

In 2013, female students in New York had an average score that was higher than male students by 12 points.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 24 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was not significantly different from that in 1998 (25 points).

State unchanged from 1998-2013; Nation up 5 points. State and nation both at 266.

Data from New York City

Go to http://nces.ed.gov/nationsreportcard/districts/ and go to New York City.

4th grade math In 2013, the average score of fourth-grade students in New York City was 236. This was not significantly different from the average score of 235 for public school students in large cities.

8th grade math In 2013, the average score of eighth-grade students in New York City was 274. This was not significantly different from the average score of 276 for public school students in large cities.

4th grade reading In 2013, the average score of fourth-grade students in New York City was 216. This was higher than the average score of 212 for public school students in large cities.

8th grade reading In 2013, the average score of eighth-grade students in New York City was 256. This was not significantly different from the average score of 258 for public school students in large cities.