Senate Transcript - May 31, 2005

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1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 May 31, 2005 11 3:10 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR MARY O. DONOHUE, President 19 STEVEN M. BOGGESS, Secretary 20 21 22 23 24 25

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(518) 371-8910 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 please come to order. 4 I ask everyone present to please 5 rise and repeat with me the Pledge of 6 Allegiance. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 THE PRESIDENT: In the absence of 10 clergy, may we bow our heads in a moment of 11 silence, please. 12 (Whereupon, the assemblage 13 respected a moment of silence.) 14 THE PRESIDENT: Reading of the 15 Journal. 16 THE SECRETARY: In Senate, 17 Monday, May 30, the Senate met pursuant to 18 adjournment. The Journal of Sunday, May 29, 19 was read and approved. On motion, Senate 20 adjourned. 21 THE PRESIDENT: Without 22 objection, the Journal stands approved as 23 read. 24 Senator Skelos. 25 SENATOR SKELOS: Madam President,

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(518) 371-8910 1 there will be an immediate meeting of the 2 Rules Committee in the Majority Conference 3 Room. 4 THE PRESIDENT: There will be an 5 immediate meeting of the Rules Committee in 6 the Majority Conference Room. 7 Presentation of petitions. 8 Messages from the Assembly. 9 Messages from the Governor. 10 Reports of standing committees. 11 Reports of select committees. 12 Communications and reports from 13 state officers. 14 Motions and resolutions. 15 Senator Fuschillo. 16 SENATOR FUSCHILLO: Thank you, 17 Madam President. 18 Amendments are offered to the 19 following Third Reading Calendar bills: 20 Sponsored by Senator Little, page 21 number 29, Calendar Number 249, Senate Print 22 Number 2778; 23 By Senator LaValle, page number 29, 24 Calendar Number 268, Senate Print Number 2952; 25 By Senator Skelos, page number 35,

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(518) 371-8910 1 Calendar Number 410, Senate Print Number 493; 2 By Senator Nozzolio, page number 3 45, Calendar Number 655, Senate Print Number 4 1323; 5 By Senator Little, page number 45, 6 Calendar Number 675, Senate Print Number 4014; 7 By Senator Maltese, page number 47, 8 Calendar Number 695, Senate Print Number 2517; 9 By Senator Morahan, page number 54, 10 Calendar Number 799, Senate Print Number 2701; 11 By Senator LaValle, page number 57, 12 Calendar Number 842, Senate Print Number 1721; 13 By Senator Seward, page number 57, 14 Calendar Number 855, Senate Print Number 2390; 15 By Senator DeFrancisco, page number 16 57, Calendar Number 862, Senate Print Number 17 4135; 18 By Senator Volker, page number 75, 19 Calendar Number 1076, Senate Print Number 20 2415; 21 By Senator Skelos, page number 77, 22 Calendar Number 1098, Senate Print Number 23 1999. 24 I now move that these bills retain 25 their place on the order of third reading.

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(518) 371-8910 1 THE PRESIDENT: The amendments 2 are received, and the bills will retain their 3 place on the Third Reading Calendar. 4 SENATOR FUSCHILLO: Madam 5 President, on behalf of Senator Maziarz, I 6 wish to call up Senate Print Number 302, 7 recalled from the Assembly, which is now at 8 the desk. 9 THE PRESIDENT: The Secretary 10 will read. 11 THE SECRETARY: Calendar Number 12 34, by Senator Maziarz, Senate Print 302, an 13 act to amend the Highway Law. 14 SENATOR FUSCHILLO: I now move to 15 reconsider the vote by which the bill was 16 passed. 17 THE PRESIDENT: The Secretary 18 will call the roll upon reconsideration. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes, 49. 21 SENATOR FUSCHILLO: I now offer 22 the following amendments. 23 THE PRESIDENT: The amendments 24 are received. 25 SENATOR FUSCHILLO: Madam

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(518) 371-8910 1 President, on behalf of Senator Larkin, I wish 2 to call up Senate Print 1398, recalled from 3 the Assembly, which is now at the desk. 4 THE PRESIDENT: The Secretary 5 will read. 6 THE SECRETARY: Calendar Number 7 450, by Senator Larkin, Senate Print 1398, an 8 act to amend the Penal Law. 9 SENATOR FUSCHILLO: I now move to 10 reconsider the vote by which the bill was 11 passed. 12 THE PRESIDENT: The Secretary 13 will call the roll upon reconsideration. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes, 50. 16 SENATOR FUSCHILLO: I now offer 17 the following amendments. 18 THE PRESIDENT: The amendments 19 are received. 20 SENATOR FUSCHILLO: Madam 21 President, on behalf of Senator Libous, please 22 place a sponsor's star on Calendar Number 602. 23 THE PRESIDENT: So ordered. 24 SENATOR FUSCHILLO: On behalf of 25 Senator Morahan, I move to amend Senate Bill

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(518) 371-8910 1 Number 5258B by striking out the amendments 2 made on 5/16 and 5/20 and restoring it to its 3 original print number, 5258. 4 THE PRESIDENT: So ordered. 5 SENATOR FUSCHILLO: On behalf of 6 Senator Nozzolio, I move to recommit Senate 7 Print 3121A, Calendar Number 510 on the order 8 of third reading, to the Committee on 9 Investigations and Government Ops, with 10 instructions to said committee to strike out 11 the enacting clause. 12 THE PRESIDENT: So ordered. 13 SENATOR FUSCHILLO: Thank you. 14 THE PRESIDENT: Senator Spano. 15 SENATOR SPANO: Do we have any 16 substitutions at the desk? 17 THE PRESIDENT: Yes, we do, 18 Senator. 19 SENATOR SPANO: May we please 20 have them read. 21 THE PRESIDENT: The Secretary 22 will read. 23 THE SECRETARY: On page 4, 24 Senator Wright moves to discharge, from the 25 Committee on Finance, Assembly Bill Number

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(518) 371-8910 1 7114A and substitute it for the identical 2 Senate Bill Number 2529A, First Report 3 Calendar 1275. 4 On page 4, Senator Little moves to 5 discharge, from the Committee on Local 6 Government, Assembly Bill Number 1600 and 7 substitute it for the identical Senate Bill 8 Number 3246, First Report Calendar 1280. 9 On page 6, Senator Saland moves to 10 discharge, from the Committee on Banks, 11 Assembly Bill Number 1911 and substitute it 12 for the identical Senate Bill Number 2479, 13 First Report Calendar 1305. 14 On page 13, Senator Saland moves to 15 discharge, from the Committee on Consumer 16 Protection, Assembly Bill Number 75 and 17 substitute it for the identical Senate Bill 18 Number 4225, Second Report Calendar 1180. 19 On page 15, Senator Balboni moves 20 to discharge, from the Committee on Veterans, 21 Homeland Security and Military Affairs, 22 Assembly Bill Number 7517 and substitute it 23 for the identical Senate Bill Number 5402, 24 Second Report Calendar 1206. 25 On page 26, Senator Alesi moves to

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(518) 371-8910 1 discharge, from the Committee on Health, 2 Assembly Bill Number 112 and substitute it for 3 the identical Senate Bill Number 1074, Third 4 Reading Calendar 112. 5 On page 31, Senator Larkin moves to 6 discharge, from the Committee on Racing, 7 Gaming and Wagering, Assembly Bill Number 7886 8 and substitute it for the identical Senate 9 Bill Number 2634, Third Reading Calendar 314. 10 On page 33, Senator Robach moves to 11 discharge, from the Committee on Civil Service 12 and Pension, Assembly Bill Number 7616 and 13 substitute it for the identical Senate Bill 14 Number 3182, Third Reading Calendar 371. 15 On page 43, Senator Fuschillo moves 16 to discharge, from the Committee on Consumer 17 Protection, Assembly Bill Number 7710 and 18 substitute it for the identical Senate Bill 19 Number 4180, Third Reading Calendar 615. 20 On page 47, Senator Bonacic moves 21 to discharge, from the Committee on 22 Environmental Conservation, Assembly Bill 23 Number 6827A and substitute it for the 24 identical Senate Bill Number 3579A, Third 25 Reading Calendar 705.

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(518) 371-8910 1 And on page 76, Senator Spano moves 2 to discharge, from the Committee on Civil 3 Service and Pension, Assembly Bill Number 6343 4 and substitute it for the identical Senate 5 Bill Number 3487, Third Reading Calendar 1082. 6 THE PRESIDENT: Substitutions 7 ordered. 8 Senator Skelos. 9 SENATOR SKELOS: Madam President, 10 if we could return to reports of standing 11 committees, I believe there's a report of the 12 Rules Committee at the desk. I ask that it be 13 read. 14 THE PRESIDENT: Reports of 15 standing committees. 16 The Secretary will read. 17 THE SECRETARY: Senator Bruno, 18 from the Committee on Rules, reports the 19 following bill direct to third reading: 20 Senate Print 5493, by Senator 21 Marcellino, an act to amend a chapter of the 22 Laws of 2005. 23 SENATOR SKELOS: Move to accept 24 the Rules report. 25 THE PRESIDENT: All in favor of

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(518) 371-8910 1 accepting the report of the Rules Committee 2 please signify by saying aye. 3 (Response of "Aye.") 4 THE PRESIDENT: Opposed, nay. 5 (No response.) 6 THE PRESIDENT: The report is so 7 adopted. 8 Senator Skelos. 9 SENATOR SKELOS: Madam President, 10 if we could go to the noncontroversial reading 11 of the calendar. 12 THE PRESIDENT: The Secretary 13 will read. 14 THE SECRETARY: Calendar Number 15 135, by Member of the Assembly Sweeney, 16 Assembly Print Number 7688, an act to amend 17 the Volunteer Ambulance Workers Benefit Law 18 and the Volunteer Firefighters Benefit Law. 19 THE PRESIDENT: Read the last 20 section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 THE PRESIDENT: Call the roll. 24 (The Secretary called the roll.) 25 THE SECRETARY: Ayes, 55.

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(518) 371-8910 1 THE PRESIDENT: The bill is 2 passed. 3 THE SECRETARY: Calendar Number 4 305, by Senator Seward, Senate Print 1372, an 5 act to amend the Insurance Law, in relation to 6 creating. 7 THE PRESIDENT: Read the last 8 section. 9 THE SECRETARY: Section 3. This 10 act shall take effect immediately. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes, 55. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 327, by Senator Maziarz, Senate Print 978, an 18 act to amend Chapter 433 of the Laws of 1997, 19 amending the Public Health Law and others. 20 THE PRESIDENT: Read the last 21 section. 22 THE SECRETARY: Section 3. This 23 act shall take effect immediately. 24 THE PRESIDENT: Call the roll. 25 (The Secretary called the roll.)

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(518) 371-8910 1 THE SECRETARY: Ayes, 55. 2 THE PRESIDENT: The bill is 3 passed. 4 THE SECRETARY: Calendar Number 5 376, by Senator Nozzolio, Senate Print 516, an 6 act to amend the General Municipal Law, in 7 relation to participants. 8 THE PRESIDENT: Read the last 9 section. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 THE PRESIDENT: Call the roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes, 55. 15 THE PRESIDENT: The bill is 16 passed. 17 THE SECRETARY: Calendar Number 18 391, by Member of the Assembly Oaks, Assembly 19 Print Number 6127, an act to amend the Parks, 20 Recreation and Historic Preservation Law, in 21 relation to designating. 22 THE PRESIDENT: Read the last 23 section. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately.

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(518) 371-8910 1 THE PRESIDENT: Call the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes, 55. 4 THE PRESIDENT: The bill is 5 passed. 6 THE SECRETARY: Calendar Number 7 432, by Senator Saland, Senate Print 3192, an 8 act to amend -- 9 SENATOR MONTGOMERY: Lay it 10 aside. 11 THE PRESIDENT: The bill is laid 12 aside. 13 THE SECRETARY: Calendar Number 14 451, by Senator Volker, Senate Print 1524A, an 15 act to amend the Criminal Procedure Law, in 16 relation to expanding. 17 THE PRESIDENT: Read the last 18 section. 19 THE SECRETARY: Section 3. This 20 act shall take effect immediately. 21 THE PRESIDENT: Call the roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes, 55. 24 THE PRESIDENT: The bill is 25 passed.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 509, by the Senate Committee on Rules, Senate 3 Print Number 3099, an act to amend the Tax 4 Law, in relation to extending. 5 THE PRESIDENT: Read the last 6 section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 THE PRESIDENT: Call the roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes, 55. 12 THE PRESIDENT: The bill is 13 passed. 14 THE SECRETARY: Calendar Number 15 545, by Senator Farley, Senate Print 3289A, an 16 act to amend Chapter 386 of the Laws of 1996, 17 amending the Education Law. 18 THE PRESIDENT: Read the last 19 section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 THE PRESIDENT: Call the roll. 23 (The Secretary called the roll.) 24 THE SECRETARY: Ayes, 54. Nays, 25 1. Senator Spano recorded in the negative.

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(518) 371-8910 1 THE PRESIDENT: The bill is 2 passed. 3 THE SECRETARY: Calendar Number 4 587, by Senator Larkin, Senate Print 2474A, an 5 act to amend the General Business Law, in 6 relation to authorizing. 7 THE PRESIDENT: Read the last 8 section. 9 THE SECRETARY: Section 2. This 10 act shall take effect on the 180th day. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes, 55. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 598, by Senator Padavan, Senate Print 409, an 18 act to amend the Executive Law, in relation to 19 cooperation. 20 THE PRESIDENT: Read the last 21 section. 22 SENATOR MONTGOMERY: Lay it 23 aside. 24 THE PRESIDENT: The bill is laid 25 aside.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 693, by Senator Winner, Senate Print 4814 -- 3 SENATOR SKELOS: Lay it aside for 4 the day, please. 5 THE PRESIDENT: The bill is laid 6 aside for the day. 7 THE SECRETARY: Calendar Number 8 723, by Senator Padavan, Senate Print 3229, an 9 act to amend the Criminal Procedure -- 10 SENATOR MONTGOMERY: Lay it 11 aside. 12 THE PRESIDENT: The bill is laid 13 aside. 14 THE SECRETARY: Calendar Number 15 731, by Senator Volker, Senate Print 1219, an 16 act to amend the Vehicle and Traffic Law, in 17 relation to authorizing. 18 THE PRESIDENT: Read the last 19 section. 20 THE SECRETARY: Section 2. This 21 act shall take effect on the first of January. 22 THE PRESIDENT: Call the roll. 23 (The Secretary called the roll.) 24 THE SECRETARY: Ayes, 55. 25 THE PRESIDENT: The bill is

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(518) 371-8910 1 passed. 2 THE SECRETARY: Calendar Number 3 735, by Member of the Assembly McLaughlin, 4 Assembly Print Number 5779, an act to amend 5 the Vehicle and Traffic Law, in relation to 6 providing. 7 THE PRESIDENT: Read the last 8 section. 9 THE SECRETARY: Section 2. This 10 act shall take effect on the 90th day. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes, 55. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 748, by Senator Volker, Senate Print Number 18 3196A, an act to amend the Civil Service Law, 19 in relation to resolution. 20 THE PRESIDENT: Read the last 21 section. 22 THE SECRETARY: Section 5. This 23 act shall take effect immediately. 24 THE PRESIDENT: Call the roll. 25 (The Secretary called the roll.)

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(518) 371-8910 1 THE SECRETARY: Ayes, 55. 2 THE PRESIDENT: The bill is 3 passed. 4 THE SECRETARY: Calendar Number 5 752, by Senator Bruno, Senate Print 4654, an 6 act to allow David Hammond to join the 7 optional twenty-year retirement plan. 8 THE PRESIDENT: There is a 9 home-rule message at the desk. 10 Read the last section. 11 THE SECRETARY: Section 3. This 12 act shall take effect immediately. 13 THE PRESIDENT: Call the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes, 55. 16 THE PRESIDENT: The bill is 17 passed. 18 Senator Skelos. 19 SENATOR SKELOS: Madam President, 20 I believe Calendar Number 723 was laid aside 21 inadvertently. If we could call it up at this 22 time. 23 THE PRESIDENT: The Secretary 24 will read Calendar Number 723. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 723, by Senator Padavan, Senate Print 3229, an 2 act to amend the Criminal Procedure Law and 3 the Penal Law. 4 THE PRESIDENT: Read the last 5 section. 6 THE SECRETARY: Section 5. This 7 act shall take effect immediately. 8 THE PRESIDENT: Call the roll. 9 (The Secretary called the roll.) 10 THE PRESIDENT: Senator 11 Montgomery, to explain your vote. 12 SENATOR MONTGOMERY: Yes, Madam 13 President, to explain my vote. 14 I'm voting against this because it 15 essentially creates the charge of -- a felony 16 charge based on the fact that a person has, I 17 believe, three misdemeanor counts. 18 And it really is -- I think goes 19 very far. And you can get two or three 20 misdemeanors in one incident, depending on how 21 the arresting officer classifies whatever the 22 incident represents to him or her. And as 23 long as that sticks, you automatically have a 24 felony charge. 25 With a felony charge, there are

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(518) 371-8910 1 hundreds of places where you cannot work in 2 the State of New York. And so when we look at 3 the statistics in New York City and people 4 talk about 50 percent of the black men who are 5 unemployed, a lot of them would fall -- a lot 6 more would be unemployed if they fell within 7 the purview of this legislation. 8 So I'm going to oppose this. And I 9 invite my colleagues, particularly those who 10 represent people who are naturally going to 11 fall into this situation, should vote no with 12 me. 13 Thank you. I'm voting no. 14 THE PRESIDENT: You will be so 15 recorded as voting in the negative, Senator 16 Montgomery. 17 The Secretary will announce the 18 results. 19 THE SECRETARY: Those recorded in 20 the negative on Calendar Number 723 are 21 Senators Dilan, Hassell-Thompson, L. Krueger 22 and Montgomery. 23 Ayes, 51. Nays, 4. 24 THE PRESIDENT: The bill is 25 passed.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 753, by Senator Robach, Senate Print 4768, an 3 act to amend the Retirement and Social 4 Security Law, in relation to disability 5 benefits. 6 THE PRESIDENT: Read the last 7 section. 8 THE SECRETARY: Section 3. This 9 act shall take effect immediately. 10 THE PRESIDENT: Call the roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes, 55. 13 THE PRESIDENT: The bill is 14 passed. 15 THE SECRETARY: Calendar Number 16 781, by the Senate Committee on Rules, Senate 17 Print Number 4079, an act to amend the Tax 18 Law, in relation to extending. 19 THE PRESIDENT: Read the last 20 section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 THE PRESIDENT: Call the roll. 24 (The Secretary called the roll.) 25 THE SECRETARY: Ayes, 57.

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(518) 371-8910 1 THE PRESIDENT: The bill is 2 passed. 3 THE SECRETARY: Calendar Number 4 784, by Senator Seward, Senate Print 4362, an 5 act to amend the Tax Law, in relation to 6 extending. 7 THE PRESIDENT: Read the last 8 section. 9 THE SECRETARY: Section 3. This 10 act shall take effect immediately. 11 THE PRESIDENT: Call the roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes, 57. 14 THE PRESIDENT: The bill is 15 passed. 16 THE SECRETARY: Calendar Number 17 803, by Senator Alesi, Senate Print 2049, an 18 act to amend the Business Corporation Law, in 19 relation to allowing. 20 THE PRESIDENT: Read the last 21 section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 24 THE PRESIDENT: Call the roll. 25 (The Secretary called the roll.)

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(518) 371-8910 1 THE SECRETARY: Ayes, 57. 2 THE PRESIDENT: The bill is 3 passed. 4 THE SECRETARY: Calendar Number 5 808, by Senator Morahan, Senate Print 3039 -- 6 SENATOR SCHNEIDERMAN: Lay it 7 aside, please. 8 THE PRESIDENT: The bill is laid 9 aside. 10 THE SECRETARY: Calendar Number 11 816, by Senator Leibell, Senate Print 4537, an 12 act to amend the Not-for-Profit Corporation 13 Law, in relation to maintenance. 14 THE PRESIDENT: Read the last 15 section. 16 THE SECRETARY: Section 3. This 17 act shall take effect on the 60th day. 18 THE PRESIDENT: Call the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes, 57. 21 THE PRESIDENT: The bill is 22 passed. 23 THE SECRETARY: Calendar Number 24 925, by Senator Balboni, Senate Print 2577, an 25 act to amend the Public Authorities Law,

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(518) 371-8910 1 relation to the term of office. 2 THE PRESIDENT: Read the last 3 section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 THE PRESIDENT: Call the roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes, 57. 9 THE PRESIDENT: The bill is 10 passed. 11 THE SECRETARY: Calendar Number 12 928, by Senator Saland, Senate Print -- 13 SENATOR SKELOS: Lay it aside for 14 the day, please. 15 THE PRESIDENT: The bill is laid 16 aside for the day. 17 THE SECRETARY: Calendar Number 18 930, by Senator Bonacic, Senate Print 5210, an 19 act to amend Chapter 555 of the Laws of 1989, 20 amending the Public Authorities Law. 21 THE PRESIDENT: Read the last 22 section. 23 THE SECRETARY: Section 2. This 24 act shall take effect immediately. 25 THE PRESIDENT: Call the roll.

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(518) 371-8910 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes, 58. 3 THE PRESIDENT: The bill is 4 passed. 5 THE SECRETARY: Calendar Number 6 971, by Senator Alesi, Senate Print 2785, an 7 act to amend Chapter 413 of the Laws of 2003 8 amending the Labor Law. 9 THE PRESIDENT: Read the last 10 section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 THE PRESIDENT: Call the roll. 14 (The Secretary called the roll.) 15 THE SECRETARY: Ayes, 58. 16 THE PRESIDENT: The bill is 17 passed. 18 THE SECRETARY: Calendar Number 19 1064, by Senator Spano, Senate Print 4155, an 20 act to amend the Vehicle and Traffic Law, in 21 relation to enacting the "Ambrose-Searles move 22 over act." 23 THE PRESIDENT: Read the last 24 section. 25 THE SECRETARY: Section 6. This

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(518) 371-8910 1 act shall take effect immediately. 2 THE PRESIDENT: Call the roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes, 58. 5 THE PRESIDENT: The bill is 6 passed. 7 THE SECRETARY: Calendar Number 8 1097, by Senator Saland, Senate Print 5280, an 9 act to amend Chapter 505 of the Laws of 1985, 10 amending the Criminal Procedure Law. 11 THE PRESIDENT: Read the last 12 section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 THE PRESIDENT: Call the roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes, 58. 18 THE PRESIDENT: The bill is 19 passed. 20 THE SECRETARY: Calendar Number 21 1100, by Senator Spano, Senate Print 3129, an 22 act to amend the Local Finance Law, in 23 relation to bonds and notes of the City of 24 Yonkers. 25 THE PRESIDENT: There is a

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(518) 371-8910 1 home-rule message at the desk. 2 Read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 THE PRESIDENT: Call the roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes, 58. 8 THE PRESIDENT: The bill is 9 passed. 10 THE SECRETARY: Calendar Number 11 1138, by Senator Skelos, Senate Print 5363, an 12 act to amend Chapter 138 of the Laws of 1998, 13 amending the Navigation Law. 14 THE PRESIDENT: Read the last 15 section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 THE PRESIDENT: Call the roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes, 58. 21 THE PRESIDENT: The bill is 22 passed. 23 THE SECRETARY: Calendar Number 24 1327, by Senator Marcellino, Senate Print 25 5493, an act to amend a chapter of the Laws of

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(518) 371-8910 1 2005, amending the Vehicle and Traffic Law. 2 THE PRESIDENT: Read the last 3 section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 THE PRESIDENT: Call the roll. 7 (The Secretary called the roll.) 8 THE PRESIDENT: Senator 9 Marcellino, to explain your vote. 10 SENATOR MARCELLINO: Yes, Madam 11 President. 12 This bill is an extender. We 13 passed the same bill about a week or so ago. 14 And now we have found that, in looking at the 15 papers, 17 individuals since January have died 16 as a result of hit-and-runs. Just last week, 17 in a three-day stretch, three more died from 18 hit-and-run incidents. 19 It is time that we took serious 20 action. We don't feel we can wait until 21 November 1st, when this bill would normally go 22 into effect. Hence this bill that we're doing 23 today moves the time that this bill will take 24 effect to immediately. 25 As soon as it is passed in the

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(518) 371-8910 1 other house and signed by the Governor, this 2 will become law and law enforcement can take 3 some serious action against those who would 4 put all of us at risk by doing drugs and 5 driving or drinking to excess and driving. We 6 want to stop this process, so that's the 7 purpose of this particular bill. 8 Thank you. I'm voting aye. 9 THE PRESIDENT: You will be 10 recorded as voting in the affirmative. 11 Senator Sabini, to explain your 12 vote. 13 SENATOR SABINI: I'm voting aye 14 as well, and I want to compliment Senator 15 Marcellino. 16 Upon returning to the district this 17 weekend, I had what all of us in public life 18 know is one of your least happy stops, this -- 19 when a tragedy occurs in your district and you 20 have to attend the wake or funeral of a family 21 who's the victim of a tragedy. 22 I had the unfortunate task of 23 visiting a family where the mother and child 24 were both killed and a joint wake was held. 25 And needless to say, to see the human tragedy

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(518) 371-8910 1 in front of you in that magnitude, to see a 2 man's entire family wiped out, someone who had 3 come to this country to make a better life for 4 his family, and then to see the family wiped 5 out by a hit-and-run driver -- we need strong 6 action like this, and I commend Senator 7 Marcellino on moving the deadline up so we can 8 send a strong message to people that 9 hit-and-run accidents will not be tolerated. 10 Thank you. 11 THE PRESIDENT: You will recorded 12 in the affirmative, Senator Sabini. 13 Senator Savino, to explain your 14 vote. 15 SENATOR SAVINO: Yes, Madam 16 President. I also want to commend Senator 17 Marcellino for this bill. 18 At the age of 8, I was hit by a car 19 around the corner from my house. And I -- and 20 the driver attempted to run, but he got 21 caught. Luckily, the police were on the next 22 corner and they saw the entire accident. I 23 spent 4 1/2 months in the hospital, and my 24 mother spent 4 1/2 months there every day, 25 neglecting her other children.

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(518) 371-8910 1 And I was lucky enough that I 2 survived and that I went on to recover. And 3 the person who hit me was held accountable 4 through the insurance process, but not through 5 the criminal process. He should have been 6 prosecuted, but the law did not support it at 7 the time. 8 So I commend you for bringing this 9 so that other families -- not everybody dies 10 of a hit-and-run. There are families who are 11 crippled by this. There are children who are 12 hurt, elderly people who are hurt who spend 13 months and sometimes years in the recovery 14 process. 15 So I support this bill strongly, 16 and thank you for bringing it. 17 THE PRESIDENT: You will be 18 recorded as voting in the affirmative, 19 Senator. 20 The Secretary will announce the 21 results. 22 THE SECRETARY: Ayes, 60. 23 THE PRESIDENT: The bill is 24 passed. 25 Senator Skelos, that completes the

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(518) 371-8910 1 noncontroversial reading of the calendar. 2 SENATOR SKELOS: Thank you, Madam 3 President. 4 If we could go to the controversial 5 reading of the calendar. 6 And please ring the bells to alert 7 the members that we are about to commence the 8 calendar. 9 THE PRESIDENT: The Secretary 10 will ring the bells, and the members should 11 return to their seats so we can begin the 12 calendar. 13 The Secretary will read the last 14 section. 15 THE SECRETARY: Calendar Number 16 432, by Senator Saland, Senate Print 3192, an 17 act to amend the Education Law. 18 SENATOR MONTGOMERY: Explanation. 19 THE PRESIDENT: Senator Saland, 20 an explanation has been requested. 21 SENATOR SALAND: Thank you, Madam 22 President. 23 Madam President, this is a bill 24 which has twice in the past three or four 25 years passed this house unanimously.

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(518) 371-8910 1 What the bill proposes to do is to 2 say that certain schools -- and currently 3 there are some 28 so-called consortium 4 schools, schools which belong to the New York 5 Performance Standards Consortium -- would 6 continue to have the benefit of a variance or 7 waiver which they received back in 1995 from 8 former Education Commissioner Sobel. That 9 variance was renewed for one year in the year 10 2000. 11 There was commissioned by the 12 current commissioner, Commissioner Mills, a 13 so-called blue-ribbon panel which was supposed 14 to evaluate the consortium schools, also 15 referred to in this bill as portfolio 16 performance schools, and also, at the same 17 time, to propose some type of evaluation of 18 the Regents. 19 Well, in fact, at the conclusion of 20 their deliberations, that panel of some six 21 members, four of whom I believe were 22 consultants for the Education Department, they 23 basically came forward and said there should 24 be such an evaluation and that, in effect, was 25 their recommendation.

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(518) 371-8910 1 And to this day, no such evaluation 2 of either these schools nor the Regents has 3 yet to occur. 4 What this bill does is to say that 5 the students currently enrolled, if they were 6 enrolled as of the 2000-2001 year, would be 7 required, as they currently are, to pass the 8 English Regents. Those who entered in 2002 9 for the 2002-2003 year would also be required 10 to pass the English Regents -- I'm sorry, the 11 math Regents. 12 And the commissioner would be 13 required to develop a portfolio 14 performance-based alternative assessment which 15 would measure, in effect, the equivalent 16 knowledge and skill for each of the Regents 17 areas. And among the conditions that would 18 have to be met would be that those assessments 19 would measure the state learning standards for 20 each of the respective content areas or 21 Regents areas. 22 This bill I guess in some respects 23 encapsulates a battle that's been going on in 24 this country for many, many years and is 25 currently certainly the source of many of the

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(518) 371-8910 1 concerns raised by No Child Left Behind. 2 What this bill says is high 3 stakes -- there are some students who do not 4 necessarily perform well in high-stakes 5 testing situations. Those students may choose 6 to opt to take some other means of education. 7 The consortium offers that means of education 8 by a performance-based system, what at times 9 some people refer to as a portfolio-based 10 system. 11 The results seemingly are rather 12 impressive. Many of you may have received a 13 fact sheet. That fact sheet, which members of 14 the consortium were handing out, that fact 15 sheet talks about the fact that they, the 16 consortium, their 28 schools send more 17 students to college, nearly 88 percent, 18 compared to 70 percent of so-called Regents 19 schools. They have lower dropout rates, about 20 half the dropout rate in the public school 21 system. 22 And they go on to say that only 23 15.6 percent of the students entering 24 consortium schools meet state standards in 25 English. They ultimately outperform their

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(518) 371-8910 1 Regents counterparts on the English Regents 2 77.4 percent to 72.7 percent. 3 I fear that this has become very 4 territorial. What has happened is those who 5 are, in effect, in a position to call the 6 shots here in the education world -- whether 7 it be the commissioner, whether it be the 8 Regents -- I think feel somewhat put upon by 9 this proposal. They feel that their Regents 10 standards should be, to the exclusion of any 11 other means of education, the tool by which we 12 educate children. 13 Many of these very same themes echo 14 in No Child Left Behind. And we certainly 15 have seen much of the criticism that has 16 surrounded No Child Left Behind, not only in 17 this state but really virtually throughout the 18 country. 19 So this is merely an effort to 20 recognize that there are other means by which 21 children can be educated other than -- 22 THE PRESIDENT: Go ahead, 23 Senator. Just to get some order. 24 SENATOR SALAND: -- other than 25 so-called high-stakes, one-size-fits-all

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(518) 371-8910 1 testing. 2 It recognizes the fact that these 3 schools at one time actually received a waiver 4 to pursue this course of education. Assuming 5 the data is correct, and I have no reason to 6 dispute it, they seem to be doing a very fine 7 job of educating the students for whom they 8 are responsible to educate. 9 And I see no reason why we should 10 not continue to pursue this means for those 11 students who are currently taking advantage of 12 it and for those who may wish to follow. This 13 would permit this particular alternative 14 educational program or programs to continue 15 through the year 2008. 16 Hopefully we can have the kind of 17 evaluation, both of the Regents and of the 18 consortium schools, that many had thought was 19 going to be forthcoming some five or six years 20 ago. There's no reason to basically turn your 21 back on what by all appearances seems to be a 22 very successful means of educating children. 23 THE PRESIDENT: Senator 24 Montgomery. 25 SENATOR MONTGOMERY: Yes, Madam

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(518) 371-8910 1 President. I would like to ask if the sponsor 2 would yield to a question, just for 3 clarification. 4 THE PRESIDENT: Senator, will you 5 yield for a question? 6 SENATOR SALAND: Yes, Madam 7 President. 8 THE PRESIDENT: You may proceed, 9 Senator Montgomery. 10 SENATOR MONTGOMERY: It is my 11 understanding, Senator Saland, that the bill 12 proposes, in addition to extension of the 13 waiver, that it would direct the commissioner 14 of State Education Department to develop a 15 portfolio assessment system which would then 16 be offered to districts throughout the state. 17 SENATOR SALAND: I believe I 18 referred to that, although perhaps not as 19 extensively as you did. 20 What that assessment would be would 21 be a means of measuring that the students who 22 availed themselves or the school that availed 23 themselves of this type of an educational tool 24 would have to demonstrate, to the satisfaction 25 of the standards or assessment established by

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(518) 371-8910 1 the commissioner, that in fact they were 2 receiving the equivalent of the education 3 that -- the equivalent of the Regents 4 education that enabled them to attain the 5 learning standards. 6 SENATOR MONTGOMERY: Madam 7 President, if I may continue to inquire of 8 Senator Saland. 9 THE PRESIDENT: Senator Saland, 10 will you yield for a question? 11 SENATOR SALAND: Yes. 12 THE PRESIDENT: You may proceed, 13 Senator Montgomery. 14 SENATOR MONTGOMERY: Okay, 15 Senator Saland, does that mean, then, that you 16 have also included a budget item, per the 17 assessment of the commissioner, as to what 18 such a process would cost? 19 SENATOR SALAND: There will be a 20 cost. 21 Quite candidly, I will say this 22 rather unabashedly, the Ed Department has 23 played fast and loose with the facts, 24 including some of the characterizations 25 regarding NCLB and including what they view as

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(518) 371-8910 1 being the fiscal consequences. Their budget 2 note that they presented said there would be 3 $7.9-plus million in fiscal impact. We would 4 say that it would be about $3 million more 5 than that. 6 They certainly have the ability to 7 begin that process. And if for any reason 8 they don't have the adequate funds as we 9 progress through the calendar year, we 10 certainly would have the ability in the next 11 budget cycle to make those funds available to 12 them. So this would not fail for lack of the 13 ability to provide funding. 14 SENATOR MONTGOMERY: Through you, 15 Madam President, if Senator Saland would 16 continue to yield. 17 THE PRESIDENT: Senator Saland, 18 do you continue to yield? 19 SENATOR SALAND: May I also point 20 out that there is a two-year delay on the 21 effective date. So, you know, this is not 22 going to hit them between the eyes. 23 THE PRESIDENT: You may proceed, 24 Senator Montgomery. 25 SENATOR MONTGOMERY: Yes. Does

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(518) 371-8910 1 this mean, then, that we would be -- since we 2 have not raised or included the funding for 3 the CFE, does that mean, then, that we're now 4 pitting CFE funding for CFE with your proposal 5 to create an alternative assessment? 6 SENATOR SALAND: I wouldn't think 7 so. It confounds me how you could come to 8 that conclusion. 9 I mean, in the scheme of the 10 comparison of CFE and this issue, you're not 11 talking pocket change, you're talking -- 12 you're not even talking pennies by comparison. 13 We're not talking $19-plus billion, we're 14 talking about the ability to provide a 15 mechanism that will evaluate students. That's 16 all. 17 And we're asking that the 18 commissioner establish the protocols by which 19 that will occur. And the commissioner has 20 said that that's going to cost nearly 21 $8 million. We've asked Senate Finance to 22 take a look at it, and they say the number is 23 more closely aligned to $5 million. 24 And as I mentioned before, I stand 25 prepared to assist the commissioner if that's

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(518) 371-8910 1 an issue in his next year's budget. But the 2 likelihood is it won't be an issue until the 3 following year's budget because of the 4 effective date. 5 SENATOR MONTGOMERY: Thank you, 6 Senator Saland. 7 Madam President, on the bill. 8 THE PRESIDENT: You may proceed. 9 SENATOR MONTGOMERY: While 10 Senator Saland says that the money is not 11 important and anyway we won't have to worry 12 about it until the effective date of the 13 legislation, clearly if, in fact, the bill 14 passes and the commissioner is instructed to 15 begin to develop this tool, I would assume 16 that the money is going to be needed to even 17 begin the process. 18 And while Senator Saland certainly 19 refers to perhaps we'll spend $4 million as 20 opposed to $7 million or $5 million as opposed 21 to $10 million, whatever, however the -- he 22 says that the commissioner is playing fast and 23 loose, we will need some money for this. And 24 it's not included in the legislation. 25 So I'm not sure that we won't get

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(518) 371-8910 1 to the point and then Senator Saland will say: 2 Well, you find the money, take it out of 3 somewhere else and CFE, whatever else there 4 is. You find the money, because the 5 legislation says you have to do this. 6 So I just wanted to point that out. 7 That is certainly a weakness in this bill. 8 I'm opposing this proposal. And 9 one of the things that Chief Justice Earl 10 Warren said when he issued the Brown decision 11 was that separate is not equal. So I say to 12 you, my colleagues, today, different is not 13 equal. 14 Now, I am all in favor of 15 alternative assessments. And I think that 16 there are a number of young people who 17 certainly would not be able to sufficiently 18 effectively be able to pass these assessments. 19 But as we are finding, since we set the bar at 20 the Regents diploma level, more and more young 21 people, particularly young people of color in 22 New York City, are passing the Regents. 23 So the idea that they couldn't do 24 it, which was the attitude that a lot of 25 people had -- unfortunately, even educators

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(518) 371-8910 1 had in past years -- doesn't hold, does it? 2 Because many of them are actually passing it. 3 And in fact, in past years when we 4 had some other kind of diploma and then we had 5 the Regents, it still was two different 6 systems of education. Many students were not 7 even offered the opportunity to pass the 8 Regents -- to take the Regents, let alone 9 being prepared to pass it. 10 So it wasn't that the students 11 couldn't do it, it was that people assumed, 12 because maybe of their social status, their 13 parents, where they lived, whatever other 14 indicators that people used to determine who 15 can possibly meet the standards bar. And it 16 was not true. 17 But clearly 90 percent of the young 18 people in New York City came out with a 19 diploma that was second-class to the Regents. 20 Now, we are, as the Legislature, 21 recreating the same situation. How can we in 22 good conscience be doing this in this century, 23 at this time, when our young people have to 24 compete with the whole world, not only with 25 people in their own country but people all

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(518) 371-8910 1 over the world? 2 And so we're creating a 3 second-class system. And the reason that I 4 say we're creating a second-class system is 5 because we are -- not only are we extending 6 the waiver for the few schools that are now 7 the alternative schools, appropriately, but we 8 are extending it statewide and making it a 9 standard of graduation while we leave in place 10 the Regents. 11 Now, I say to you either you have 12 one standard and everybody understands that 13 there is an alternative to graduation, but 14 that alternative clearly is not the same as 15 the standard that everybody else is going to 16 use to measure people -- we all should 17 understand that -- or we shouldn't have a 18 Regents, we should all have the portfolio 19 system. This way, everybody is measured by 20 the same thing. 21 I think this creates an opportunity 22 for us to once again go back to a system where 23 some people are portfolio students and others 24 are Regents and you know who is going to fall 25 under what rubric.

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(518) 371-8910 1 Now, I just remind my colleagues 2 that every education leader in our state and 3 city are opposing this process. And I just 4 want to read from the chancellor's memo. It 5 says: "The current Regents learning standards 6 represent an enormous investment of time and 7 human and material resources. They reflect 8 years of careful consultation by the Board of 9 Regents with a broad cross-section of experts 10 and educational stakeholders in an open and 11 transparent process." 12 They are aligned with the 13 educational standards developed by the 14 Regents. And I know that many people in here 15 don't want the Regents at all; they would like 16 to do the whole education system by politics, 17 by political fiat. But we do have the 18 Regents. And in fact, the Regents standards 19 are held by a lot of the people around the 20 country. Many educators say we have very high 21 standards, and they praise us. 22 In addition, the Department of 23 Education has done a lot of work with 24 different groups in different districts to 25 make a transition to higher standards. And I

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(518) 371-8910 1 suggest that if in fact the schools that we're 2 talking about that are clearly alternative 3 schools, and they have a mixed record of 4 success -- certainly some of them are very 5 successful, others are successful to the same 6 extent as the charter schools are successful, 7 to the same extent as public schools generally 8 are successful -- that the State Ed 9 Department, the commissioner has agreed to 10 work with them. 11 I would hope that we would leave 12 this important decision to people in the 13 Department of Education, in higher education, 14 the chancellor, the education leaders around 15 the state. Why don't we let them do what they 16 are paid to do and that they have the 17 experience to do? That they believe in young 18 people, that they hopefully won't be 19 politicized to the point where they are 20 willing to throw out the standards of the 21 Regents because that's no longer -- that's no 22 longer politically correct. Never mind, we 23 don't have a statewide way of comparing if my 24 students, students in my district can compete 25 with students in Senator Saland's district or

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(518) 371-8910 1 Senator Johnson's district or anybody in here. 2 If my students pass the Regents and 3 your students pass the Regents, then I can be 4 assured reasonably that my students are on the 5 same par with yours. But if my students pass 6 the assessment and yours do the Regents, what 7 are you going to say to me? You're going to 8 stand up and try to tell me that there's 9 something wrong with my students. 10 So, Madam President, I'm opposed to 11 this. I think that it moves us backward, 12 educationally speaking. We went through years 13 and years and years of debate and work around 14 establishing a statewide standard, especially 15 in light of the Brown versus the Topeka Board 16 of Ed. It's the same issue. As long as we 17 have a second-class standard of measurement 18 for one group or for one part of the state and 19 another standard for the other part of the 20 state or the other group, we are in violation 21 of Brown versus Board of Ed. 22 So I would ask if Senator Saland 23 and my colleagues would reassess this. At 24 least we should limit it to those schools that 25 already have the waiver, give them a little

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(518) 371-8910 1 bit more time. But they should be required to 2 work with the commissioner to move into the 3 standardized bar of measurement. 4 Now, if they can't do it, then we 5 can talk about what is an alternative. But I 6 do not support giving the authority to 7 districts around the state, especially to 8 broadening this so that it becomes part of our 9 educational system so, once again, we in the 10 Legislature would be responsible for 11 legislating a second-class, two-tiered 12 education system. 13 I oppose it, Madam President. I'll 14 vote no. 15 THE PRESIDENT: Senator Stavisky. 16 SENATOR STAVISKY: Madam 17 President, if the sponsor would yield to a 18 number of questions. 19 SENATOR SALAND: Yes, Madam 20 President. 21 THE PRESIDENT: Senator Saland 22 will yield for a question. 23 SENATOR STAVISKY: Through you, 24 Madam President. 25 I heard you describe to Senator

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(518) 371-8910 1 Montgomery the fact that the State Education 2 Department would have to develop an assessment 3 program for the portfolio-based schools. And 4 yet, from what I understand, it's simply a 5 plan. There's no enforcement. 6 If they're going to have rules and 7 regulations, then they should be followed. 8 And it's my understanding that this bill does 9 not require the portfolio schools to accept 10 the SED regulations. Is that correct? 11 SENATOR SALAND: That is not 12 correct. 13 This requires -- this bill has a 14 2008 sunset. 15 SENATOR STAVISKY: I'm sorry, I 16 can't hear you. 17 SENATOR SALAND: This bill is 18 good through 2008. It requires the 19 commissioner to prepare the means by which the 20 portfolio performance schools can be assessed, 21 trying to equate apples to apples, holding 22 their assessment to the standards of the 23 learning standards. 24 Failure to do that -- failure to do 25 that, if you can't be evaluated and if you

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(518) 371-8910 1 can't meet the learning standards, then you 2 would be treated as would any other school in 3 any other location in any place in this state. 4 If you don't have the ability to provide the 5 education that's required either by your 6 standards as measured by the commissioner's 7 evaluation, then -- you've heard of things 8 called SURR schools? You've heard -- I mean, 9 there are consequences for failure to do that. 10 SENATOR STAVISKY: Then they'd be 11 on the SURR list. 12 SENATOR SALAND: This is not a 13 means by which accountability can be avoided. 14 And let me just add, I certainly 15 understand Senator Montgomery's passion. But 16 the fact of the matter is is that much of what 17 she was alluding to has little or nothing to 18 do with this bill. 19 And I might also add, and I'm 20 looking at a report, the demographics of the 21 students currently attending these consortium 22 schools, as provided to me in a report, nearly 23 61 percent are eligible for free lunch, 24 19.4 percent are white, 27.6 percent black, 25 43.5 percent Hispanic, and 9.6 percent Asian

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(518) 371-8910 1 and others. So it certainly is a very diverse 2 group of students that are attending these 3 schools. 4 And again, as a very practical 5 matter, why do people use standardized tests? 6 Why is the government -- NCLB, the government 7 gives you a choice of tests. People use 8 standardized tests because they're the 9 cheapest, they're the easiest to grade, and 10 they can be done far more efficiently than can 11 a portfolio-based type of performance 12 analysis. 13 So there would be no pell-mell rush 14 into portfolio-based performance analysis were 15 this bill to become law, simply because, in 16 part, of the fiscal constraints. 17 SENATOR STAVISKY: Madam 18 President, if the Senator would continue to 19 yield. 20 THE PRESIDENT: Senator Saland, 21 will you continue to yield? 22 SENATOR SALAND: Yes, Madam 23 President. 24 THE PRESIDENT: You may proceed, 25 Senator, with a question.

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(518) 371-8910 1 SENATOR STAVISKY: Following up 2 on what you just said, then there are 3 alternatives to the portfolios, the -- what is 4 it, the international baccalaureate, the SAT, 5 that special advanced placement, SAT II, the 6 Advanced International Certificate of 7 Education, the Cambridge exam. Why is the 8 portfolio program superior to these other 9 types of tests? 10 SENATOR SALAND: I'm not 11 proposing that they are. I'm merely saying 12 that they're providing, by the data given me, 13 which is not -- I have not seen disputed, they 14 provide a quality education and they do it in 15 a fashion that has a much higher college 16 attendance rate than the other schools in our 17 state. 18 And I can run off a laundry list of 19 some of the schools that they're attending, 20 and they're rather -- that the graduates are 21 attending, and it's a rather impressive list 22 of schools. 23 SENATOR STAVISKY: Following up 24 on that, in other words, we can assume, then, 25 that there are alternatives to the portfolio

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(518) 371-8910 1 schools, it's just that you prefer to use 2 portfolio rather than rely on these 3 alternative tests. 4 SENATOR SALAND: If it's working. 5 And the easiest way to have 6 resolved that issue would have been to do what 7 had been proposed some five or six years ago, 8 do the evaluation. That's what this panel 9 recommended. The evaluation was never 10 forthcoming. It was just stone-cold stopped. 11 Now, I would think, unless you're 12 so wedded to the idea that everything has to 13 be one size fits all and it's my way or the 14 highway, that you would consider what's going 15 on in these schools if they're delivering a 16 fine product. 17 And that fine product is a student, 18 in some instances a student who may have not 19 fared well in elementary school, who comes 20 into this new educational environment and 21 seems to blossom, blossoms well enough that 22 the vast majority of these students are going 23 off to college, a claim that we can't make in 24 all our schools. 25 SENATOR STAVISKY: Madam

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(518) 371-8910 1 President, if the sponsor would continue to 2 yield. 3 THE PRESIDENT: Senator Saland, 4 will you yield? 5 SENATOR SALAND: Yes, Madam 6 President. 7 SENATOR STAVISKY: You mentioned 8 the fact that the assessments are working 9 well. What is there in the program that 10 permits the assessment of a child in School A 11 and the assessment of a child in School B to 12 have -- to be comparable? In other words, 13 free of bias, et cetera. 14 SENATOR SALAND: Senator 15 Stavisky, you've raised an excellent question. 16 SENATOR STAVISKY: Thank you. 17 SENATOR SALAND: You've truly 18 raised a question that goes in part to the 19 very heart of a substantial portion of this 20 bill. 21 And that's what we're asking the 22 commissioner to do. I'm not qualified. I 23 couldn't evaluate School A and School B. I 24 believe that the commissioner, if not capable 25 of doing it himself, has the ability to

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(518) 371-8910 1 harness the right resources to make that 2 happen. 3 Now, understand, this is not a 4 process that we're inventing in New York. 5 This process is used in several other states 6 and used exclusively in the state of Nebraska, 7 and they comply with No Child Left Behind. 8 Their entire system is portfolio-based, and 9 they comply with No Child Left Behind. 10 So when I hear that a performance, 11 slash, portfolio-based system will not comply 12 with No Child Left Behind, I say that's a 13 little divorced from reality. 14 SENATOR STAVISKY: Madam 15 President, if the sponsor will continue to 16 yield. 17 THE PRESIDENT: Senator Saland, 18 do you yield? 19 SENATOR SALAND: Yes, Madam 20 President. 21 THE PRESIDENT: You may proceed. 22 SENATOR STAVISKY: You mentioned 23 the state of Nebraska. But closer to home, 24 the Rand Corporation did a study of the state 25 of Vermont. Are you familiar with that study?

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(518) 371-8910 1 Because that study showed that the portfolio 2 assessment tests were not reliable and were 3 not valid. 4 Would you comment on that? 5 SENATOR SALAND: I only know in a 6 passing fashion of reference to that study. 7 And again, one of the very reasons 8 that you see language in this bill in 9 Section 3 on page 2 is to try and deal with 10 that issue, is to require the ability to do 11 some type of an assessment. 12 I wouldn't want a student in my 13 district and a student in Western New York, or 14 one in the city and one in the Adirondacks, to 15 be gauged differently. And I do believe that 16 the commissioner should have the ability to 17 accomplish that. 18 If they can do it elsewhere, I 19 don't understand why we can't do it here. 20 SENATOR STAVISKY: Then, Madam 21 President, my last question. 22 THE PRESIDENT: Senator Saland, 23 will you yield for a final question? 24 SENATOR SALAND: Yes, Madam 25 President.

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(518) 371-8910 1 THE PRESIDENT: You may proceed 2 with your final question. 3 SENATOR STAVISKY: The final 4 answer. 5 You're relying on the Commissioner 6 of Education to do so many of these 7 assessments to provide for the ground rules 8 for assessing the portfolio -- 9 SENATOR SALAND: Excuse me, 10 Senator. I heard you as far as "you're 11 relying on the commissioner," and then I 12 didn't hear what you said after that. 13 SENATOR STAVISKY: I'm sorry. 14 I'm sorry. 15 You're relying on the Commissioner 16 of Education to perform -- to provide the 17 ground rules, the background, the basis for 18 which to judge the various schools. And yet 19 from what I understand, the schools are not 20 required to follow the commissioner's rules 21 that he's going to promulgate. And yet you're 22 relying again and again upon the commissioner 23 to do these things at a cost to be determined. 24 How can you -- why, in your 25 judgment, has the Commissioner of Education

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(518) 371-8910 1 been leading the charge against this bill? 2 SENATOR SALAND: Would you like 3 me to answer that tactfully, or would you like 4 me to answer that question? 5 (Laughter.) 6 SENATOR SALAND: I'll give you A 7 or B. 8 SENATOR STAVISKY: Excuse me, 9 Senator. This is a multiple choice test 10 and -- 11 (Laughter.) 12 SENATOR SALAND: Let me be polite 13 and say there's a bit of territoriality 14 involved here. 15 The commissioner is committed to 16 his vision, which is a one-size-fits-all 17 vision. Everybody takes the same test. 18 I believe, Senator Stavisky, you 19 may have attended at least one of the hearings 20 I held in '03 when we looked at the Regents 21 standards. We held three hearings around the 22 state, and there was some very interesting 23 testimony which went to the very heart of does 24 that type of high-stakes testing really 25 educate a child or teach a child to pass a

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(518) 371-8910 1 test, and is the child any better off when he 2 or she comes through that process than they 3 might have been if they went through a system 4 such as a portfolio-based system. 5 Now, the commissioner at one time 6 was an advocate of the portfolio-based system 7 when he was in Vermont, and now he's an 8 advocate of this far more rigid 9 standards-based system. And I don't know why 10 the two can't coexist. 11 I think, for practical reasons, 12 most will probably continue -- practical being 13 financial -- to use the type of Regents exam 14 or any type of high-stakes exam. And in no 15 small part, the advent of No Child Left Behind 16 requires us to pursue that as well. 17 But where students can flourish 18 under another system, why not give them that 19 opportunity? Particularly if the commissioner 20 continues to have oversight. And if I didn't 21 think the commissioner would have oversight, 22 this bill wouldn't be here, because he should 23 have oversight. 24 And there are students -- there are 25 only 16,000 students in the whole system in

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(518) 371-8910 1 this type of system right now. 2 SENATOR STAVISKY: Thank you, 3 Madam President. 4 Let me -- very briefly on the bill. 5 THE PRESIDENT: You may proceed. 6 SENATOR STAVISKY: I still have 7 misgivings about this. I think the cost, this 8 is money that could be used for the CFE 9 decision, certainly. We really don't know 10 what the cost is going to be. 11 Secondly, studies have shown that 12 the alternative assessments are often of 13 dubious value. 14 Third, that there are alternatives, 15 as I said, to the portfolio assessment 16 program. 17 And lastly, I believe, along the 18 lines of what Senator Montgomery said, I 19 believe that every child can learn and every 20 child can pass these exams. And to think 21 otherwise is to almost demonstrate that 22 children don't deserve an education, when they 23 do deserve one, they deserve the very best. 24 The children in the portfolio 25 assessment schools can do as well or better

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(518) 371-8910 1 than young people taking the Regents exams. I 2 think Senator Saland indicated that. 3 I think we're insulting the whole 4 educational system when we don't demand the 5 very best. I think it's up to us to ask that 6 the students do well. We're spending a lot of 7 money to help them, and it seems to me that 8 these are kids who can learn and they should 9 learn because when they graduate they're going 10 to have a diploma that's worth something. 11 Thank you, Madam President. 12 THE PRESIDENT: Senator LaValle. 13 SENATOR LaVALLE: Thank you, 14 Madam President. I'm going to speak on the 15 bill hopefully in a very succinct way. 16 The first question that we should 17 as members ask ourselves is why is a bill like 18 this before us. Why is a bill that deals 19 primarily with a matter, an administrative 20 matter before an agency, that they should be 21 dealing with what kinds of tests are being 22 used in this state? 23 As we all know, because we've 24 discussed this in our committees, both in 25 Higher Education and Education in years gone

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(518) 371-8910 1 by, is whether a measure can be developed 2 where all students could at the same time get 3 over the bar. 4 And this is a matter that the Board 5 of Regents and the commissioner have doggedly 6 said, We are not going to change the standard, 7 we are moving ahead, and it's more important 8 that we have a standard of success. 9 And by the way, all the members 10 here have individually, collectively said we 11 support higher standards. In one of the 12 memoranda, it talks about New York raised 13 standards to make sure students get the 14 knowledge and skills they need for jobs, 15 college, and a more complex world. 16 We believe in that. We've said 17 that. We've written speeches on that. It is 18 at the core of our existence in why we support 19 education, so that students can be competitive 20 in the marketplace and have a good job and 21 raise a family. And we don't move away from 22 that. 23 But the department has been 24 unwillingly to move in a rapid way to 25 understand that not everyone learns at the

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(518) 371-8910 1 same level. We didn't all walk at the same 2 time. We didn't learn to read at the same 3 time. We weren't potty-trained at the same 4 time. There are differences. And so our 5 education system must accommodate those 6 differences. 7 Albeit it's not something that I'm 8 in agreement, but our society is moving 9 towards standardized tests. That's the way it 10 is, and I accept it. But I don't accept, as 11 the sponsor, and I've devoted my whole life to 12 truth in testing -- that I believe, and we've 13 shown this empirically, that standardized 14 tests are not free from bias. They have 15 gender bias, ethnic bias, racial bias. They 16 are biased. 17 But the testing people say 18 everything's fine, there's no bias in our 19 tests. And then, after having said that, they 20 change their mind and they say, Well, we're 21 doing a better job in removing those biases. 22 Oh, wait a minute. You said some 23 years ago that there was no bias. Now you say 24 you're doing a better job. 25 And so I think that while we are on

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(518) 371-8910 1 a pathway to have certain standards, have 2 standardized tests, but I think we're really 3 fooling ourselves if we believe that everyone 4 at a point in time can go over that bar in the 5 same way. 6 This is something that should not 7 really be decided statutorily, legislatively. 8 But you know something? Senator Saland is 9 going to have a wake-up call. He was very 10 gentlemanly in his response to Senator 11 Stavisky's question. This is something that 12 the Board of Regents and the commissioner 13 should be working out, not the Legislature. 14 But I am going to support this 15 legislation because I think we need to send a 16 message to the department and say: Wake up. 17 Treat children who may be different in a way 18 that they can get over the bar and achieve and 19 be successful. 20 I'm going to support this 21 legislation. Thank you, Madam President. 22 THE PRESIDENT: Senator 23 Oppenheimer. 24 SENATOR OPPENHEIMER: Thank you. 25 This issue has raised a lot of

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(518) 371-8910 1 passion, and I think that it's wonderful that 2 we're able to have this kind of discussion 3 openly between ourselves. 4 I think some of the things I've 5 been listening to -- and I've been listening 6 very carefully to what everyone's been 7 saying -- I think that this bill probably 8 would be the answer to some of the things that 9 we're talking about. 10 You were talking about learning 11 differences, Senator LaValle, and you're 12 right, this would accommodate to that. There 13 are people who learn at different times in 14 different ways. Surely myself; I'm dyslexic. 15 I learned in a different way. Not that I 16 wasn't able to achieve, but I had a different 17 way of learning. 18 I think the statement that we want 19 to see, that everybody -- we know that 20 everybody can learn. That is a basic 21 foundation of our education system in New York 22 now. And if you say that everybody can learn, 23 then you have to look at what has been 24 produced by these schools. 25 These schools are largely

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(518) 371-8910 1 occupied -- the few schools that we have in 2 New York State now that offer alternative 3 assessments, they are largely in lower-income 4 areas. They are children that probably would 5 not have fared well in the normal school -- in 6 other words, the general school system -- but 7 because they went into this type of a school, 8 they came from disadvantaged backgrounds and 9 have yet turned around to have higher 10 outcomes, higher outcomes than most of the 11 rest of our school systems are producing. 12 They're sending more children to 13 college. What more applicable standard or 14 maximum line would you have than that these 15 children are going to college at a greater 16 rate than the lower-income children who are 17 not served by them in those districts? 18 The question I have -- and I guess 19 I should ask Senator Saland a question, if you 20 would. Will the Senator yield? 21 SENATOR SALAND: Yes, Mr. 22 President, I yield. 23 ACTING PRESIDENT MEIER: Senator 24 Saland yields. 25 SENATOR OPPENHEIMER: I went from

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(518) 371-8910 1 on the bill to a question. 2 In developing an accountability 3 standard, which I think is absolutely 4 essential, I guess the question I would have 5 is, how applicable will it be generally to 6 education? 7 Do you think there will be a mass 8 move towards this in spite of the fact that it 9 is more complex, more time-consuming for the 10 school districts to have them assessed? Do 11 you think that there would be a mass movement 12 towards this and away from the more simple 13 Regents standards? I mean more simple in the 14 evaluation of them. 15 SENATOR SALAND: I can only offer 16 you my own opinion. It's based purely on 17 conjecture. 18 My sense is that it would be 19 something that would not be significantly 20 subscribed to, simply because it is a far more 21 costly system, I would believe, to administer 22 and also to create the kinds of evaluations 23 that you would have to do. 24 I just -- I would assume that for 25 many, particularly in the world in which we

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(518) 371-8910 1 live now, when you're talking about 2 independent school districts that have budgets 3 that are constantly, every year, put to the 4 challenge, I would think that they would be 5 hard-pressed to go into a system that had the 6 potential to be that much more costly. 7 SENATOR OPPENHEIMER: Thank you, 8 Senator Saland. 9 So I think I'll just say a couple 10 more things on the bill. 11 Certainly all of us would be 12 alarmed and horrified to think of Regents 13 standards being thrown out. They have done so 14 much good for our state. And we see children 15 that in the past would have been cast away and 16 now, lo and behold, they are passing the 17 Regents standards because we have said that 18 this is something that we require in our state 19 to graduate. 20 But if we can create accountability 21 standards for alternatives, I think that is 22 something -- as a humanist, that is something 23 that all would want. Because we are all 24 different. If we can all at least measure up 25 to the accountability that is necessary to

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(518) 371-8910 1 require -- that would be required for 2 graduation from high school, then we could see 3 that people who are different and learn 4 differently will be able to achieve and go on 5 to college. 6 Which is really what we are hoping 7 for, that we can send our young people to 8 college. Because we all know that a college 9 education is what's going to be required for 10 them to work in this 21st century. 11 So I think in no way do we want to 12 see the Regents standards in any way 13 diminished, but we want to see an alternative. 14 So far the alternative has really just been -- 15 mostly, at least -- in our low-income areas. 16 But I can assure you that I represent some 17 school districts that are definitely at the 18 opposite end of that spectrum, and there is 19 nothing that Scarsdale would not like better 20 than having alternative assessments where they 21 think it is appropriate. 22 It isn't appropriate in all 23 circumstances. But where there is a need for 24 those of us who are not enormously fond of 25 charter schools, principally because of the

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(518) 371-8910 1 way they are funded -- the fact that they're 2 innovative and creative I do appreciate. I do 3 not appreciate that they are being funded out 4 of my property tax dollars. 5 But this is a way, in my mind, to 6 have an alternative to a charter school within 7 a school district. And I think this is really 8 an answer for us. So I will be supporting 9 this. 10 ACTING PRESIDENT MEIER: Senator 11 Liz Krueger. 12 SENATOR LIZ KRUEGER: Thank you, 13 Mr. President. On the bill. 14 I want to thank Senator Saland for 15 the work he's done on this bill, because it 16 has been controversial, as we've seen today, 17 but it is critically important. 18 And many of my colleagues have 19 spoken passionately on both sides, and so I'll 20 just highlight some of my own feelings, having 21 visited these schools, having several in my 22 own district. 23 Parents are choosing portfolio 24 schools because they're working. They're 25 working for their children. They are being

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(518) 371-8910 1 successful, they are moving on, graduating, 2 going to college, staying in college, and, in 3 fact, meeting all of the standards we say we 4 hope for for all of our children. 5 Not every child is the same. They 6 don't learn the same way. All of us in this 7 room, if we sat here, would admit if we were 8 the good test-takers in our lives or the bad 9 test-takers. We now know as adults it didn't 10 necessarily mean anything in relationship to 11 our ability to accomplish, to become elected 12 officials in the State of New York. But we 13 know who we are. We know which of us did will 14 on tests and which didn't, which of us figured 15 out other ways to move through the educational 16 system, which of us specialized in taking 17 classes in college where you wrote papers 18 rather than having to take exams. 19 Which of us would admit, even if we 20 were good on tests, that we forgot the 21 information within three days after taking the 22 test? And what is the real test of education? 23 Whether you know how to learn how to learn. 24 And what we're finding from the 25 data in the portfolio schools is that these

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(518) 371-8910 1 children are learning how to learn, and how to 2 move on and figure out ways to continue their 3 own education through college and through 4 careers. And that's the real measure of 5 education. 6 I empathize with State Education 7 Department's desire to have a 8 one-size-fits-all system. It's easier to 9 administer. It's easier to measure. But it 10 doesn't reflect the reality of the fact that 11 our children are not one size fits all or one 12 way to learn is the only way to learn. 13 These schools deserve the 14 evaluations that will show that they are 15 successful, because they are. I come from a 16 city where we encourage small schools. We 17 encourage charter schools. We encourage 18 magnet schools. Portfolio schools are one 19 other model that is being successful for 20 children in my city and in other cities around 21 the state. 22 And I also want to raise the point 23 that we should not have the illusion that 24 because it appears on one piece of paper that 25 more children are getting higher scores on the

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(518) 371-8910 1 Regents exams every year, that that's the 2 right measure of success. Because if you look 3 at the data, we know that we have a dropout 4 rate that is increasing every year. We know 5 that New York State's graduation rate is 6 appalling, and that three independent studies 7 put the graduation rate at approximately 8 60 percent of the children in the cohorts 9 entering high school. 10 We know that New York State has the 11 lowest graduation rate in the Northeast and 12 the Midwest combined. We know, at least in 13 the City of New York, that teachers and 14 principals in some schools counsel their 15 students to drop out rather than flunk the 16 tests and lower the passing averages in those 17 schools. 18 So in fact, portfolio schools are 19 working, while the system is broken. We 20 should be evaluating everyone carefully. We 21 should not be lowering the standards for any 22 child, because that's flunking them and 23 flunking ourselves. But these schools have so 24 much to contribute to the education of our 25 children. They are proving themselves every

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(518) 371-8910 1 day. It is our job to make sure that we 2 successfully evaluate and measure. 3 But you don't need everyone 4 teaching to test, and you don't need 5 high-stakes testing as your only measure to 6 establish that you are accomplishing your 7 goals of providing the children of this school 8 good quality education. 9 I encourage my colleagues, those 10 who will vote yes today and those who will 11 vote no, go visit portfolio schools. Go talk 12 to the teachers, the principals, the parents, 13 the students. Go look at the data of what is 14 happening in those schools. They are being 15 successful. We are not failing these 16 children. We are not throwing them away. We 17 are recognizing that one size does not fit all 18 and this is a model that is working. 19 I hope my colleagues will vote yes. 20 Thank you, Mr. President. 21 ACTING PRESIDENT MEIER: Senator 22 Diaz. 23 SENATOR DIAZ: Thank you, Mr. 24 President. 25 Mr. President, would the sponsor

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(518) 371-8910 1 yield for a question, one or two. 2 ACTING PRESIDENT MEIER: Senator 3 Saland, do you yield for a question? 4 SENATOR SALAND: Yes, Mr. 5 President. 6 ACTING PRESIDENT MEIER: The 7 sponsor yields. 8 SENATOR DIAZ: Senator Saland, do 9 you know that the worst students -- I mean, 10 the ones that does poorly -- are the black and 11 Hispanic, especially in the City of New York? 12 SENATOR SALAND: I'm sorry? 13 SENATOR DIAZ: Do you know that 14 our students, black and Hispanic students, 15 they are all the time doing worse than other 16 students? 17 SENATOR SALAND: I know that the 18 predominant number of failing schools are 19 located in the City of New York. 20 SENATOR DIAZ: Mr. President, 21 should I go ahead or -- 22 ACTING PRESIDENT MEIER: Do you 23 want Senator Saland to yield for another 24 question? 25 SENATOR DIAZ: Yes.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: Senator 2 Saland, do you yield for another question? 3 SENATOR SALAND: Yes, Mr. 4 President. 5 ACTING PRESIDENT MEIER: The 6 sponsor yields. 7 SENATOR DIAZ: Senator Saland, 8 would you agree that we always should be 9 trying to do the best for those students that 10 are left behind, especially black and Hispanic 11 students? 12 SENATOR SALAND: I think your 13 question was we should do the best for -- 14 SENATOR DIAZ: Do you agree that 15 we all should be doing the best we can to be 16 sure that black and Hispanic students do 17 better in school? 18 SENATOR SALAND: We certainly 19 should be doing all we can for students of all 20 colors and all ethnicities. 21 And based upon what you said 22 previously, black and Hispanic students are 23 not performing as well in some instances as we 24 would like, particularly in the city. 25 SENATOR DIAZ: Thank you.

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(518) 371-8910 1 If -- I have some statistics here 2 that was handed to me by Senator Krueger. And 3 it shows that the African-American students 4 are doing better and the Latinos are doing 5 better in consortium schools than public 6 schools, than regular schools. 7 If that is so and these schools are 8 working, especially -- schools should be 9 working for every student, for everyone. But 10 I'm concerned with the black and Hispanic 11 students in my district. So if these 12 consortium schools are doing as good as I see 13 in these statistics, Senator Saland, could you 14 please tell me, why are we discussing this? 15 SENATOR SALAND: Why are we 16 closing this? 17 SENATOR DIAZ: Discussing this. 18 Discussing. 19 SENATOR SALAND: Oh, discussing. 20 Earlier in my remarks I made some 21 reference to the demographics of the student 22 population in these consortium schools. And a 23 little less than 20 percent of the students 24 are white, and the balance of the students are 25 African-American, Hispanic, and what was

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(518) 371-8910 1 termed Asian and others. 2 These are the same students who are 3 going to college, according to the data, which 4 is yet to be disputed from any source, at a 5 rate of some 87 percent. That's an astounding 6 number. 7 So that bespeaks, I would think, 8 volumes for the fact that they are doing a 9 very good job with those that they are 10 educating. So I would concur with the 11 conclusion that you've brought me to. 12 SENATOR DIAZ: Mr. President, 13 will the Senator yield for another question. 14 ACTING PRESIDENT MEIER: Senator 15 Saland, do you continue to yield? 16 SENATOR SALAND: Yes, Mr. 17 President. 18 ACTING PRESIDENT MEIER: The 19 Senator yields. 20 SENATOR DIAZ: If these 21 consortium schools are doing so good, 22 especially to minority students, why would you 23 think anybody would go against this bill? 24 SENATOR SALAND: That -- that's a 25 very difficult question to answer.

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(518) 371-8910 1 As I said earlier, I think some of 2 it relates to territoriality. I think some of 3 it relates to interpretation of data, which I 4 find troublesome. I mean, to infer that 5 somehow or other this does not comply with No 6 Child Left Behind, I find that extremely 7 troublesome. 8 There's some other data that I've 9 seen in some of the materials that have gone 10 out over the course of the past week or so 11 that I find equally troublesome. 12 The long and the short of it is, is 13 that this challenges the model that the 14 Regents and the Commissioner of Education 15 believe to be the appropriate model. It gives 16 no credence to the fact that children, 17 students do learn differently, and some of 18 them have obviously flourished under this 19 system. 20 Why you would want to eliminate 21 this alternative, particularly in the absence 22 of the evaluation that had been recommended 23 back in the year 2000, is beyond me. If you 24 don't believe it works, then do the evaluation 25 and establish as a matter of fact that it

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(518) 371-8910 1 doesn't work. I think that would probably fly 2 in the face of the data that will be produced. 3 But why don't you put it to rest by having the 4 evaluation? 5 And at the same time, as has been 6 previously recommended, why don't you evaluate 7 the Regents standards? Do them both 8 simultaneously. And do it with a panel of 9 experts that will not come to the table with 10 any degree of what I'll call parochialism or 11 prejudice. 12 SENATOR DIAZ: Thank you. 13 Mr. President, on the bill. 14 ACTING PRESIDENT MEIER: Senator 15 Diaz, on the bill. 16 SENATOR DIAZ: When we campaign 17 to get elected, we promise our communities 18 that we will do our best to improve education, 19 we promise our communities that we will do our 20 best to be sure that our children are not left 21 behind, and we promise that we will do our 22 best to be sure that we do whatever is 23 possible so our children get a good education. 24 It is strange to me -- it is 25 strange to me, and I cannot understand why

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(518) 371-8910 1 every time that something works, something 2 that works on behalf of our minority students 3 gets opposition. 4 When there is a push for charter 5 schools -- charter schools have proven to be 6 good for our students, for our communities. 7 Some people don't want that to happen. They 8 don't want our students in the black and 9 Hispanic community to find and have the equal 10 opportunities for them to improve. 11 When it comes to consortium 12 schools, they're doing good for our 13 communities, for our children. Some people 14 don't want that. 15 So some of the people that don't 16 want what's good for our students, they always 17 cite, they always bring the question of money. 18 Oh, because money, because we're here. 19 Well, ladies and gentlemen, I think 20 that if we are going to educate the black and 21 Hispanic children -- every children. But 22 again, I'm concerned with the black and 23 Hispanic children in my district. If we are 24 going to educate them, money should not be an 25 issue. Money should not be questioned.

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(518) 371-8910 1 Whatever it takes, whatever it takes to 2 educate and to get them to be educated should 3 be done. 4 So I suggest that we should stop 5 this debating here and let's vote for this 6 bill that has been good to our communities. 7 And anything else that comes to this floor 8 that is in favor to our children, we should 9 stop debating. If it's good, let's do it. 10 Thank you. 11 ACTING PRESIDENT MEIER: Senator 12 Hassell-Thompson. 13 SENATOR HASSELL-THOMPSON: Thank 14 you, Mr. President. 15 It is very rare that I'm -- that I 16 will ever speak, probably, in opposition to 17 some of my colleagues, particularly to Senator 18 Montgomery. We started out together in 19 childcare, in early childhood education back 20 in the 1970s. And we have pretty much always 21 been in accord in terms of how we see 22 education. 23 Some of the Senators are saying 24 that they don't understand the need for 25 discussion. On something as important as

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(518) 371-8910 1 this, there's always a need for discussion. 2 Primarily because regardless as to what side 3 we're on, somewhere in the middle of the 4 debate is where truth lies. And hopefully, 5 with enough debate, we can find it. 6 I don't try to look for things that 7 are wrong with bills. I always try to look 8 for what's right. And at the heart of it and 9 on the face of it, at least, the face of it 10 says to me that the results of the consortium 11 schools show that our youngsters are doing 12 better. That they enter with scores lower 13 than those citywide, but that at the end and 14 their performances in college shows that this 15 is an alternative that works and tends to work 16 for a significant number of students. 17 And I, like Senator Diaz, have to 18 be very concerned about what happens in our 19 public schools, because in my district they 20 are predominantly children of color. 21 Having said that, I become 22 concerned that I continue to be bombarded by 23 people -- by parents, particularly, as well as 24 associations -- who are looking to put their 25 children into alternative school

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(518) 371-8910 1 methodologies. Last week several, at least 2 20 parents came from the district to talk 3 about different charter schools that are 4 working for their kids. 5 Now we're having the discussion 6 about consortium schools, portfolio schools. 7 What I have said to them, and what I want to 8 say here, I'm not sure whether the 9 Legislature, as Senator LaValle says, should 10 be the driving force. But I can tell you that 11 parents are asking the State of New York to do 12 something different for their children, 13 because their children are failing. 14 And one of the reasons that we 15 don't see the kind of lowered scores on the 16 Regents in terms of failures is because most 17 of our kids are dropping out before they take 18 the Regents exams. And if you were to factor 19 those dropouts, you would see that the numbers 20 are skewed. 21 Our children are failing. An 22 example that I continue to use that disturbs 23 me -- and I feel when we have these kinds of 24 discussions, we push our school districts to 25 believe that one methodology works for all

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(518) 371-8910 1 children, and I know that it does not. 2 There were children in a particular 3 school district where only DISTAR was being 4 taught. And the results said that 70 percent 5 of the children who studied the DISTAR method 6 were successful, they passed. The question of 7 those of us as parents of children who were 8 not doing as well and were failing was, what 9 happens to the 30 percent of the children that 10 don't do well? 11 And they said that this school 12 district is only prepared to spend money for 13 one system, and so therefore all children must 14 learn under that system. And they were 15 satisfied that the 70 percent who were passing 16 could pass. But that meant that that was the 17 process by which we were already leaving 18 30 percent of the children behind. 19 There were not these kinds of 20 alternative programs to put those children in, 21 and many of those children continued to fail. 22 And by ninth grade, many of them were being 23 socially promoted because they could not read 24 and they could not spell at all. 25 When we believe that one system is

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(518) 371-8910 1 the only way in which we can help our 2 children, we do a disservice. I am, on the 3 face of this, supportive of this bill. But I 4 am telling you that in the State of New York, 5 we must begin the dialogue that says that 6 public school as we have known it is failing 7 our children in the 21st century. And we must 8 begin to talk about what is it that we are 9 prepared to do to change it. 10 And we cannot do it one bill at a 11 time. We cannot do it one system at a time. 12 There has to be a discussion that says if we 13 are committed to the success of our children, 14 then we cannot take the public school that was 15 developed in the 18th century and apply that 16 methodology to the 21st, because the 17 requirements of our children into the future 18 are very different. And I am tired of jobs 19 going to India and the Far East because our 20 children have to be retaught in order to be 21 successful. 22 We have a job to do, a big job. I 23 will support you, Senator Saland, on this 24 bill. But I would like all of us to begin the 25 dialogue that says that the State of New York

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(518) 371-8910 1 is failing its children and has to do 2 something different from what it does. 3 ACTING PRESIDENT MEIER: Senator 4 Schneiderman. 5 SENATOR SCHNEIDERMAN: Thank you, 6 Mr. President. Briefly on the bill. 7 This has been one of the best 8 debates that we've had since I've been here, 9 both on the floor and the discussions off the 10 floor. But in my mind, we're really talking 11 about, looking at this bill and listening to 12 my colleagues, three separate issues. And I 13 think we should keep them in mind as distinct 14 issues. 15 First, we have 28 schools in this 16 consortium, not 44 -- for some reason, the 17 Education Department is including in it other 18 schools who have dropped out or are no longer 19 in the consortium -- 28 schools that, if you 20 look at their statistics, are doing a good 21 job. Should we preserve these as alternative 22 schools within the public system for students 23 who opt in? That's question one. 24 Question two is, should those 25 schools, the existing portfolio schools, be

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(518) 371-8910 1 required to submit to a state -- standardized 2 state measurement of the portfolio-based 3 schools that will be developed by the 4 commissioner? That's in Senator Saland's 5 bill. That's the second issue. Now they have 6 their own assessments that each school is 7 doing somewhat differently. 8 And the third question is, should 9 we make this portfolio system available to 10 other school districts and expand? 11 And I would submit to you, my 12 colleagues, these are three separate questions 13 that must be kept separate. Because I think 14 what we're in danger of doing here today, if 15 we vote against this bill, is putting out of 16 business some schools that perform a very good 17 function for thousands of students who 18 otherwise might drop out of school who are 19 opting into an alternative school, as Senator 20 Hassell-Thompson pointed out, with scores, at 21 the time they go from regular schools to the 22 portfolio schools, lower than the standards, 23 and they graduate uniformly with scores that 24 are higher. Higher graduation rates, higher 25 college-bound rate.

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(518) 371-8910 1 So I would suggest that preserving 2 these 28 schools is important. There is no 3 dispute as to the data. They are doing a good 4 job. And in particular, I mean, it's -- I 5 find the thing that bothers me in some 6 respects the most is this. I went to some 7 high-stakes schools, and I assure you of this. 8 The children of the rich have a lot of 9 alternative schools available to them. There 10 is no rich kid who doesn't test well who can't 11 find some fancy prep school with the flakiest 12 proposals imaginable to get you into a fancy 13 college. 14 In the public school system, which 15 is under attack -- it has been accused of not 16 being creative enough -- we have a set of 17 schools that are doing this, that are 18 providing for poor children the kinds of 19 alternatives that, if we get rid of these 20 schools, will only be available to the 21 children of the very rich. That, to me, would 22 be a great failure on our part if we put these 23 schools out of business that are performing 24 this service. The statistics are 25 unassailable.

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(518) 371-8910 1 It also seems to me that the second 2 part of Senator Saland's bill is pretty hard 3 to argue with. I think the portfolio schools, 4 if they want to stay in this business, should 5 have a standardized state test. And the 6 portfolio schools, showing their good faith, I 7 suppose, are telling us to pass a bill that 8 empowers their arch-enemy, the commissioner, 9 to develop the standards. So you know he's 10 not going to develop trivial standards for 11 them. He wants them all to fail. He's going 12 to have much tougher standards than the 13 Regents. 14 This bill lets the commissioner 15 develop standards, but Senator Saland requires 16 that the alternative assessments shall be at 17 least as rigorous as the corresponding 18 required state assessment. So that part of 19 the bill I think is also pretty hard to 20 dispute. 21 I really think that when we come 22 down to it, most of the concerns I've heard 23 are about the third part of the bill, which 24 allows alternative assessments, as meeting the 25 commissioner's rigorous standards, to be

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(518) 371-8910 1 available for other school districts. 2 And there is a concern that is not 3 a trivial concern, because it's based on some 4 substantial history that has been raised by 5 Senator Montgomery and others. This is not to 6 be dismissed lightly. This is a tendency in 7 this country, and we've seen it in special 8 education, we've seen it a lot of places. 9 But I would suggest to you, ladies 10 and gentlemen, that we're better off keeping 11 these alternative schools, preserving the 12 28 schools that are working, getting a 13 statewide assessment that will be guaranteed 14 to be rigorous because the commissioner is 15 going to be putting it together, and then 16 dealing with this issue of how rapidly these 17 are allowed to expand in a different context. 18 I think that's something we should be able to 19 address separately. 20 But it would be a shame to adjourn 21 this session not having passed this bill or an 22 alternative bill that deletes the requirement 23 for this to be available in other schools in 24 New York State. We can revisit that at a 25 later date. Because that would put out of

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(518) 371-8910 1 business schools that are clearly doing a good 2 job and providing to the children of the poor 3 alternatives for kids who don't just fit in 4 into the one-size-fits-all system that are 5 currently only available to the children of 6 the very rich in some states and would be only 7 available to the children of the very rich in 8 New York were we to reject this legislation. 9 So I'm going to vote yes, Mr. 10 President. I encourage everyone to vote yes, 11 with the understanding that this issue of 12 expansion should be addressed at a later date. 13 Thank you. 14 ACTING PRESIDENT MEIER: Does any 15 other member wish to be heard on the bill? 16 Debate is closed, then. 17 The Secretary will ring the bell. 18 Read the last section. 19 THE SECRETARY: Section 3. This 20 act shall take effect immediately. 21 ACTING PRESIDENT MEIER: Call the 22 roll. 23 (The Secretary called the roll.) 24 ACTING PRESIDENT MEIER: Senator 25 Montgomery, to explain her vote.

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(518) 371-8910 1 SENATOR MONTGOMERY: Yes, 2 briefly, Mr. President, to explain my vote. 3 I've listened to my colleagues, and 4 I certainly do agree -- I'm very happy to hear 5 particularly Senator LaValle, because the 6 principles that he espoused are certainly my 7 principles. 8 I have two degrees in education. 9 Certainly early childhood was my special 10 consideration. And in my years and years of 11 experiences with young children that I've 12 worked with, I found very, very, very few that 13 were not bright on an equal par with any child 14 anywhere in the world. 15 But it was once they went into this 16 huge place, like a dark or a white hole, 17 whatever you call it, however you -- it used 18 to be the black hole. It's now the white 19 hole. 20 ACTING PRESIDENT MEIER: Give me 21 a second, Senator Montgomery. 22 SENATOR MONTGOMERY: They went in 23 there, and they came out different. 24 And part of the problem was that 25 people had low expectations of these children.

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(518) 371-8910 1 And I know plenty of people, even up until 2 today, who say that they go to their so-called 3 college counselor or they go to the counselor 4 in the school and they're told, "You're not 5 college material, so you don't worry about 6 getting ready for college." 7 This is still happening. 8 Unfortunately, none of us want to deal with it 9 or admit it, but it's the truth. 10 And I've gone to high school 11 speak-outs where I'm speaking to high school 12 students, and the first thing they ask: Why 13 do we have this affirmative action program 14 when we get ready to go to college? We don't 15 agree with that. 16 These are high school children who 17 didn't yet get out to become bigoted in their 18 way of thinking, but yet they don't like 19 affirmative action. They don't like the 20 concept of it. 21 So we have all of these forces 22 moving against certain children. Why don't we 23 have these alternative schools in all of the 24 districts of the Republican members over 25 there? Which one of them will hold their hand

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(518) 371-8910 1 up and say, I have these schools, I want these 2 schools in my district? 3 Why don't they have them? What 4 happens to your children who can't pass the 5 tests? What happens? Do you mean to say that 6 everybody in this room -- nobody over on the 7 Republican side has any of these children who 8 can't pass the tests and they need these 9 alternative assessments so that half of their 10 children won't have a high school diploma that 11 anybody recognizes? 12 No, they don't have them. They're 13 not asking for them. They're not supporting 14 them. So this is not for everybody. This is 15 for children who are in my district. 16 ACTING PRESIDENT MEIER: Senator 17 Montgomery, how do you vote? 18 SENATOR MONTGOMERY: I know, my 19 two minutes are up. 20 But you see, I want to point out to 21 you, Mr. President, that I believe this is not 22 for every child. It's not for every district. 23 It's for districts like I represent. 24 And I don't want my children, the 25 children that graduate from my schools to be

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(518) 371-8910 1 any less prepared and to have any kind of 2 assessment that is looked upon in any way that 3 is different from anybody else in this room. 4 I vote no. 5 ACTING PRESIDENT MEIER: Senator 6 Montgomery will be recorded in the negative. 7 Senator Balboni, to explain his 8 vote. 9 SENATOR BALBONI: Mr. President, 10 in explaining my vote I'd like to make two 11 quick observations. 12 One, this debate has a lot of very 13 positive comments for Senator Steve Saland. I 14 think the point of that is that here in the 15 Legislature you get a chance to become an 16 expert in something. And Steve Saland has 17 become an expert in education. He has taken a 18 look at this program, he's put forward a very 19 good idea and concept, and everybody I think 20 has recognized it one way or the other. 21 The second observation is that 22 there is a lot of disdain in this room for the 23 Regents. A lot of people don't trust the 24 Regents. And maybe it's because a lot of 25 their actions borders on arrogance, that they

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(518) 371-8910 1 think they know it all and will tell 2 everybody. 3 And I would argue that many of us 4 in this room have a lot better feel for what's 5 going on in our school districts than the 6 Regents do. And, frankly, Commissioner Mills 7 would do a lot better to pay more attention to 8 what Steve Saland says. 9 Having said that, in 2000 there was 10 a program that was created for waivers. And 11 during -- since that time in 2000, standards 12 were supposed to be developed for those 13 programs that were going to be outside of the 14 standard testing. They were not developed. 15 Likewise, there were assessments 16 that were developed that were standardized. 17 And when they first came in, particularly two 18 years ago, people in my district were very 19 nervous. They said, What does this mean? Are 20 we going to be able to truly judge people on a 21 standard across the state? 22 Well, two years later the people in 23 my district are very comfortable with the 24 standards. As a matter of fact, I've received 25 information from my neighbors who say, You

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(518) 371-8910 1 know what? At least we know now some gauge of 2 how our schools are doing across the board and 3 for everybody. And so as much as it pains me, 4 I think we should give this program a little 5 more of a chance. 6 So I am going to reluctantly, in a 7 very close call that should not be interpreted 8 by anybody in this legislature or outside of 9 it as a supportive statement of the Regents 10 generally, I'm going to vote against the bill. 11 Thank you, Mr. President. 12 ACTING PRESIDENT MEIER: Senator 13 Balboni will be recorded in the negative. 14 Senator Stavisky, to explain her 15 vote. 16 SENATOR STAVISKY: Mr. President, 17 the responsibility for setting the standards 18 and for the programs -- for the assessment of 19 alternative programs lies with the Regents. 20 I agree with what Senator LaValle 21 said. But because the policymaking part of 22 the State of New York, we have vested the 23 power in the Regents and not in the 24 Legislature, I vote no. 25 ACTING PRESIDENT MEIER: Senator

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(518) 371-8910 1 Stavisky will be recorded in the negative. 2 The Secretary will announce the 3 results. 4 THE SECRETARY: Those recorded in 5 the negative on Calendar Number 432 are 6 Senators Balboni, Brown, Gonzalez, Marcellino, 7 Montgomery, Morahan, Padavan, A. Smith, 8 Stachowski and Stavisky. 9 Those Senators absent from voting 10 on Calendar Number 432: Senator Sampson. 11 Ayes, 50. Nays, 10. 12 ACTING PRESIDENT MEIER: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 598, by Senator Padavan, Senate Print 409, an 16 act to amend the Executive Law. 17 ACTING PRESIDENT MEIER: Senator 18 Schneiderman. 19 SENATOR SCHNEIDERMAN: In an 20 effort to speed things up, we will forego the 21 explanation since Senator Padavan has 22 explained this bill so eloquently for the last 23 couple of years. 24 This is a bill that would require 25 police agencies of New York State and of the

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(518) 371-8910 1 municipalities of New York State to provide 2 specific forms of cooperation with the 3 Immigration and Customs Enforcement Service. 4 Specifically, this would require 5 that any person who is arrested by a local 6 police officer in New York State who is, 7 quote, reasonably suspected, close quote, of 8 being present in the United States in 9 violation of federal immigration laws, that 10 the law enforcement agency, the local agency 11 shall attempt to verify that person's status 12 and report the results of that verification. 13 The problem many of us have with 14 this bill is very straightforward. We are in 15 a situation now where we're grappling with 16 what to do with the many undocumented 17 immigrants who are here in our state and in 18 our country. 19 The way to deal with them, in the 20 view of many of us, is not to pretend they're 21 not there. We have communities that have 22 large numbers of immigrants, and many of them 23 don't have their papers. 24 We should not make that large group 25 of people, a group of people who are going to

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(518) 371-8910 1 do everything possible to avoid contact with 2 police officers, not report crimes, not be 3 willing to testify as witnesses. 4 And furthermore, this bill doesn't 5 even require that the person arrested, that it 6 be a lawful arrest. I mean, I suppose you 7 could bring a wrongful arrest action from 8 Santa Domingo or Shanghai where you were 9 deported to. But it just says if you are 10 arrested, a police officer can engage in, you 11 know, the most random sort of arresting 12 procedure. 13 But once you're arrested, the 14 police officer has the authority to determine 15 your status -- not just the authority, the 16 obligation to determine your immigration 17 status and report you. 18 So this is something that in a very 19 difficult area, in an area with tremendous 20 potentials for abuse, would escalate the 21 potential for abuse, in my view. 22 And it would also, I think, have a 23 very detrimental effect on our law enforcement 24 officers. I can assure you that law 25 enforcement officers have a hard enough time

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(518) 371-8910 1 getting people to cooperate with them as it 2 is. You're not going to have any cooperating 3 witnesses in communities with lots of 4 immigrants if you pass this piece of 5 legislation. 6 So I am going to vote no, as I have 7 in the past, and urge other people to vote no. 8 I appreciate the sponsor's 9 forbearance so that we can speed this up. 10 Thank you, Mr. President. 11 ACTING PRESIDENT MEIER: Senator 12 Hassell-Thompson. 13 SENATOR HASSELL-THOMPSON: Thank 14 you, Mr. President. On the bill. 15 I recognize that there are some 16 people who view the local law enforcement as 17 being foot soldiers in our war on terrorism. 18 But I have two concerns with respect to this 19 perspective. 20 The first is that such a 21 development would certainly make illegal 22 immigrants wary of cooperating with police. 23 This puts illegal immigrants, who are already 24 at risk, at greater risk for exploitation. 25 My second concern is that the

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(518) 371-8910 1 inquiries police would be required to make 2 under this legislation could lead to racial 3 profiling. I'm sure that that's not the 4 sponsor's intent and he does not intend to put 5 into law any provisions that would result in 6 racial profiling. However, the absence of 7 language specifically prohibiting racial 8 profiling concerns me. 9 Therefore, I urge the sponsor to 10 consider amending this bill to specifically 11 prohibit racial profiling and perhaps consider 12 Senator Paterson's Senate Bill 1599, which 13 does three things: prohibits police officers 14 from using racial or ethnic profiling; 15 requires the collection of data on traffic and 16 street stops; and authorizes the Attorney 17 General to seek injunction relief where a law 18 enforcement agency has been found to have 19 engaged in racial profiling. 20 Thank you, Mr. President. 21 ACTING PRESIDENT MEIER: Senator 22 Parker. 23 SENATOR PARKER: Thank you, Mr. 24 President. On the bill. 25 We have in front of us today

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(518) 371-8910 1 another in a long list of anti-immigrant bills 2 by Senator Padavan. And I'm not clear where 3 the motives necessarily come from. I know 4 that all of us are concerned with security, 5 particularly in back of 9/11. But let me 6 suggest that this is not the way to handle it. 7 Let me suggest that, you know, 8 let's pretend that this country, I don't know, 9 is a country of immigrants. Let's pretend 10 that, you know, our whole debate about the 11 school system actually gets started because we 12 have a large number of immigrants in the 13 country who, you know, we are looking to help 14 become better acclimated to this country. 15 Let's pretend that we now, in 16 New York City, have more immigrants than we've 17 ever had in the history of the city, and that 18 has had some significant impacts on us. 19 Mostly good. But when we look at many of the 20 things that we take for granted about the 21 uniqueness of this state and the uniqueness of 22 New York City in particular, many of which 23 come from the contributions of immigrants. 24 And so for us post-9/11, when we 25 ought to be paying more attention to our

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(518) 371-8910 1 security, to then turn that attention to 2 security into an anti-immigrant measure 3 actually falls into the hands of the 4 terrorists. 5 We are now in a place where 6 everybody is looking at each other wondering 7 what everybody's status is. And if for some 8 reason you were not born on the shores of the 9 United States, that all of a sudden that you 10 are suspected of being a criminal and treated 11 thus. 12 We have a police department in 13 New York City that's been trying its best, I 14 think has done a fairly good job, is 15 overworked. And here we are about to vote on 16 legislation -- and hopefully not pass it, but 17 voting on legislation that would in fact 18 significantly increase their workload. In 19 fact, I would say probably triple it, by one 20 piece of legislation, if in fact they are 21 mandated to check out every person's status. 22 This is not what we should be 23 doing. We should not be creating 24 anti-immigrant measures. We should not be 25 making the citizens and the people who live in

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(518) 371-8910 1 my district -- because be clear, for every 2 person that you think or who may be 3 undocumented, they are attached to people who 4 are actually citizens in our districts. And 5 in my district in particular. 6 And you are not going to only find 7 lack of cooperation, as both Senator 8 Schneiderman and Senator Hassell-Thompson have 9 indicated, from noncitizens, you're going to 10 also find lots of uncooperation in many 11 communities with the police from citizens who 12 are looking to protect loved ones, neighbors 13 and friends. 14 We need to be very, very, very, 15 very careful because we are really treading 16 very closely to eliminating the very liberties 17 that we are seeking to protect by increasing 18 security in this country. 19 And so I am voting no. I'm asking 20 that my colleagues vote no and that we look at 21 some other ways to make sure that we have the 22 security in this country that we all need and 23 deserve. 24 ACTING PRESIDENT MEIER: Senator 25 Liz Krueger.

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(518) 371-8910 1 SENATOR LIZ KRUEGER: Thank you. 2 Briefly on the bill, Mr. President. 3 We had an extensive debate last 4 year, and I just want to highlight again my 5 concerns. And I share the concerns of my 6 colleagues that we are making a demand on 7 police with the passage of this bill that is 8 unrealistic to expect. 9 I have a district that is 10 considered a low-crime district, and yet I can 11 tell you that one of my number-one complaints 12 from my constituents is that there are not 13 enough police on the streets to deal with 14 quality-of-life crimes and other issues that 15 they deal with every day, and they are 16 frustrated. 17 And I can tell you that in other 18 parts of the City of New York with higher 19 crime rates, there are even greater concerns 20 that police are not there in the right numbers 21 to address the needs of communities. 22 And so we would be putting a new 23 mandate on our police that I don't believe is 24 realistic to place on them. 25 And we would also, I think,

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(518) 371-8910 1 particularly in communities of diversity in 2 our major cities in this state, be creating a 3 system where people would be afraid to send 4 their children to school, afraid to go out on 5 the streets, afraid that if they were accused 6 of any kind of misdemeanor crime that they 7 would suddenly be under a federal 8 investigation on their immigration status. 9 And I share the concern of my 10 colleague Senator Parker when he talks about 11 you pick up a teenager for a misdemeanor, and 12 under this law you may find yourself in a 13 situation where adults are being ordered out 14 of the country and U.S. citizen children are 15 being left behind. This is not a model we 16 should be encouraging through this law. 17 I respect Senator Padavan's 18 arguments from previous debates that if people 19 break the law, they are supposed to pay the 20 price. But I have to say that mandating that 21 anyone arrested who's not by definition found 22 guilty, simply arrested of any crime, as low a 23 misdemeanor as one could imagine in our 24 sentencing charts -- that anyone arrested for 25 a misdemeanor charge could find themselves and

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(518) 371-8910 1 their families facing deportation is too big a 2 price for us in the state to pay for our 3 desire to ensure that our federal immigration 4 laws are followed. 5 And so I will be voting no on this 6 bill. Thank you, Mr. President. 7 ACTING PRESIDENT MEIER: Senator 8 Brown. 9 SENATOR BROWN: Thank you, Mr. 10 President. 11 I have voted no against this 12 bill -- voted no to this bill in the past, and 13 I'm going to vote no again today because I 14 just don't feel that it's necessary to 15 legislate this. I think that the process is 16 working. 17 I can only indicate two weeks ago, 18 in Buffalo, the U.S. Bureau of Customs and 19 Immigration Enforcement was able to apprehend 20 206 people, 146 of them that were violent 21 criminals, illegal aliens, and those 206 22 people were deported from the country. 23 So the system is working. I don't 24 think it's necessary to add this layer of 25 legislation to make the system work.

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(518) 371-8910 1 I will say, though, that, you know, 2 being someone of Caribbean descent, I think if 3 someone is in the country illegally, that is 4 wrong. And I don't seek to protect people who 5 are in the country illegally, but I will say 6 that I do believe that the system is working, 7 that we don't need this layer of bureaucracy. 8 It is important that we protect our 9 homeland security, but I don't think this is 10 necessary to do so. 11 ACTING PRESIDENT MEIER: Does any 12 other Senator wish to be heard on the bill? 13 Debate is closed, then. 14 The Secretary will ring the bell. 15 Read the last section. 16 THE SECRETARY: Section 2. This 17 act shall take effect on the 30th day. 18 ACTING PRESIDENT MEIER: Call the 19 roll. 20 (The Secretary called the roll.) 21 ACTING PRESIDENT MEIER: Announce 22 the results. 23 THE SECRETARY: Those recorded in 24 the negative on Calendar Number 598 are 25 Senators Andrews, Brown, Connor, Diaz, Dilan,

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(518) 371-8910 1 Gonzalez, Hassell-Thompson, L. Krueger, 2 C. Kruger, Montgomery, Oppenheimer, Parker, 3 Paterson, Sabini, Schneiderman, Serrano, 4 A. Smith, M. Smith and Stavisky. 5 Those Senators absent from voting: 6 Sampson and Wright. 7 Ayes, 40. Nays, 19. 8 ACTING PRESIDENT MEIER: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 808, by Senator Morahan, Senate Print 3039, an 12 act in relation to requiring the Port 13 Authority of New York and New Jersey. 14 SENATOR SCHNEIDERMAN: 15 Explanation. 16 ACTING PRESIDENT MEIER: Senator 17 Morahan, Senator Schneiderman has requested an 18 explanation of Calendar 808. 19 SENATOR MORAHAN: Thank you, Mr. 20 President. 21 This bill addresses the remains 22 that are in the Fresh Kills Landfill, or part 23 of Staten Island, that were extracted from the 24 World Trade Center. 25 The World Trade Center Families for

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(518) 371-8910 1 Proper Burial have asked, have requested, 2 pleaded for an appropriate place for the 3 remains of their loved ones who were killed on 4 that terrible day on 9/11. 5 New Jersey has passed a similar 6 bill asking the Port Authority to find -- they 7 want them buried in the World Trade Center 8 itself. Our bill asks that the Port Authority 9 and the two governors of the states find a 10 suitable location, either in New York or 11 New Jersey, for a more cemetery-like sitting. 12 We are in contact with New Jersey, who is now 13 discussing the merits of changing their bill 14 to match ours. 15 That's about it. 16 ACTING PRESIDENT MEIER: Senator 17 Schneiderman. 18 SENATOR SCHNEIDERMAN: Thank you. 19 Through you, Mr. President, if the sponsor 20 would yield. 21 ACTING PRESIDENT MEIER: Senator 22 Morahan, do you yield for a question? 23 SENATOR MORAHAN: Yes, Mr. 24 President. 25 ACTING PRESIDENT MEIER: The

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(518) 371-8910 1 sponsor yields. 2 SENATOR SCHNEIDERMAN: This is 3 obviously an extremely sensitive set of issues 4 that are raised by this legislation. 5 Through you, Mr. President, could 6 the sponsor tell us what portion of the 7 1.2 million tons of materials that were 8 brought to Fresh Kills from the World Trade 9 Center site would have to be moved to comply 10 with this bill? It simply says -- it refers 11 to the ash without defining how much ash is in 12 Fresh Kills that would have to be moved. 13 SENATOR MORAHAN: That's really 14 not known specifically. 15 However, we do have a letter that 16 was written in July of 2004 saying about 360 17 to 480 -- 18 ACTING PRESIDENT MEIER: There 19 are members conversing in the chamber whose 20 voices can be heard above those of the members 21 who are debating. It's really disrespectful 22 to the members, and it makes it difficult for 23 the stenographer. 24 Can we have some order, please. 25 Senator Morahan.

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(518) 371-8910 1 SENATOR MORAHAN: The City of 2 New York, in response to the Families for 3 Proper Burial, estimated 360 to 480,000 tons. 4 SENATOR SCHNEIDERMAN: Thank you. 5 And through you, Mr. President, if 6 the sponsor would yield for another question. 7 ACTING PRESIDENT MEIER: Senator 8 Morahan, do you yield? 9 SENATOR MORAHAN: Yes, I do. 10 ACTING PRESIDENT MEIER: The 11 sponsor yields. 12 SENATOR SCHNEIDERMAN: Has there 13 been any environmental assessment of the 14 danger to the people in Staten Island or 15 New Jersey for digging up this 360,000 to 16 480,000 tons of ash, with asbestos and other 17 substances in it from the World Trade Center 18 site? 19 SENATOR MORAHAN: I don't know of 20 any study. But I would assume that those 21 studies, environmental studies, would have to 22 be performed before these remains would be 23 moved or as they are removed. 24 SENATOR SCHNEIDERMAN: Thank you. 25 One final question, through you,

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(518) 371-8910 1 Mr. President. 2 ACTING PRESIDENT MEIER: Senator 3 Morahan, do you continue to yield? 4 SENATOR MORAHAN: Yes, I do, Mr. 5 President. 6 ACTING PRESIDENT MEIER: The 7 sponsor yields. 8 SENATOR SCHNEIDERMAN: So this 9 legislation would not in any way require or 10 even -- or indicate in any manner that the ash 11 should be moved to Lower Manhattan? This 12 provides an open-ended period of time through 13 which the governments of New York and 14 New Jersey and the Port Authority could 15 determine where to put this monument; is that 16 correct? 17 SENATOR MORAHAN: That is 18 correct. 19 Initially the families had lobbied 20 for the location at the World Trade Center or 21 in the downtown area. Recognizing that that 22 bill would not be successful in the State 23 Legislature, they have compromised, if you 24 will, or they have modified their position, 25 asking for another suitable cemetery-like

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(518) 371-8910 1 setting. 2 And their concern is not that it's 3 even in New York City; it could be in 4 New Jersey, for that matter. Because there 5 are families from both states who were 6 impacted. 7 SENATOR SCHNEIDERMAN: Thank you. 8 Thank the sponsor for his answers. 9 Briefly on the bill. 10 I applaud Senator Morahan's efforts 11 to deal with the ongoing difficulties that 12 many of the families of World Trade Center 13 victims are going through with regard to 14 everything from benefits and insurance to 15 being able to set up sites for appropriate 16 grieving and for proper burial. 17 However, I just can't see how, in 18 practical terms, it makes any sense for us to 19 unearth 360,000 to 480,000 tons of ash and 20 by-products of the World Trade Centers. We 21 know there's a lot of asbestos and ground 22 glass and other things in there that are very 23 dangerous. 24 It's a tragedy that they don't 25 have, if any, remains of the victims. But

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(518) 371-8910 1 granting something where you just move this 2 huge portion of an entire landfill to some 3 other location doesn't seem to me to be a 4 practicable solution. 5 So I will be voting no, with an 6 understanding that this is a difficult problem 7 and we have to deal with the issue of finding 8 an appropriate site for a memorial to the 9 victims. 10 I just don't think that dumping 11 half a million tons of ash into that site is 12 going to make it any easier to be an 13 appropriate site, do any good to the victims, 14 and certainly pose danger to the people of 15 Staten Island. 16 So I will be voting no, Mr. 17 President. 18 ACTING PRESIDENT MEIER: Senator 19 Morahan. 20 SENATOR MORAHAN: Thank you, Mr. 21 President. On the bill. 22 I appreciate the concerns expressed 23 by Senator Schneiderman, I truly do. 24 And although many of these families 25 have been compensated with money, many of them

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(518) 371-8910 1 have had other issues unresolved. To lose one 2 in such a way as they lost that person or that 3 loved one that day brings up all sorts of 4 other horrors in the middle of the night, not 5 knowing where the remains are or knowing that 6 they're in a landfill. It's only something 7 that someone who has experienced this horrific 8 loss can truly appreciate. 9 And I recognize the herculean task 10 that would be required to accomplish this bill 11 in its entirety. But I think, for the peace 12 of mind of the families of over 2,000 people, 13 almost 3,000 people who perished that day, 14 this is an investment, this is a matter of 15 respect, and I would appreciate a unanimous 16 vote for the families of the World Trade 17 Center horror. 18 Thank you. 19 ACTING PRESIDENT MEIER: Senator 20 Liz Krueger. 21 SENATOR LIZ KRUEGER: Thank you, 22 Mr. President. On the bill. 23 I certainly respect Senator 24 Morahan's goals with this bill. And as the 25 Senate district that lost the greatest number

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(518) 371-8910 1 of people at the World Trade Center, I 2 certainly speak to people regularly in my own 3 district who lost family members and people 4 they worked with and people they knew and 5 their neighbors, and went to more memorials 6 than I perhaps can hazard to guess at this 7 point. 8 I also have a husband who spent 9 weeks after the World Trade Center down as an 10 auxiliary fireman going through these remains 11 and sifting through the dirt. And I can tell 12 you what a horrifying experience it was for 13 everyone who worked there and volunteered 14 there to try to piece together as best they 15 could remains for family members who were so 16 desperate to find out whether they could get 17 confirmation of whether someone they loved was 18 alive or had been found. 19 And yet I find that I can't support 20 this bill, Senator Morahan, because there 21 isn't a solution written in this bill. And 22 perhaps there isn't a solution because we 23 truly can't come to one. 24 I know for a fact that the City of 25 New York and the uniformed officers and the

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(518) 371-8910 1 volunteers spent months and months and months 2 trying to do their best to collect the remains 3 of the people who died in the World Trade 4 Center disaster. I know that they failed 5 because it was impossible. And I don't know 6 that we in the Legislature, or anyone, can 7 ever make these families whole. 8 But I don't think an open-ended 9 bill that says you move all of this dirt and 10 remains too fine to sift through at this point 11 to another location for an alternative 12 memorial to the one proposed by the City of 13 New York to be built at Fresh Kills, a 14 memorial that is designed to be a living 15 remembrance of the people who were lost at the 16 World Trade Center, is a better answer than 17 the one that is being offered today by the 18 City of New York. 19 I would certainly be open to 20 alternative proposals as they come forward 21 from the governors of both states, since 22 New Jersey also appears to be very interested 23 in dealing with this issue. But I would urge 24 everyone to look at the proposal that has been 25 currently made by the City of New York to

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(518) 371-8910 1 develop a living memorial and earthwork 2 monument, an expanse of wildflower meadow on 3 Staten Island where these remains and this 4 dirt currently are placed. 5 And if we can't agree on that 6 location, then let's talk through further what 7 best meets everyone's needs, when in fact the 8 answer is we will never address the real 9 needs. Because what we're dealing with is the 10 pain of so many families and so many people 11 who lost the people that they loved and who 12 will never forget them. And there is no 13 ultimate satisfactory answer to this. 14 But I fear that passage of this 15 bill ends a proposal that is yet to be fully 16 explored for Staten Island, without coming up 17 with an alternative that would meet the needs 18 better of the survivors. 19 So I'll be voting no. But I 20 appreciate very much the work you're doing on 21 behalf of the families who are crying out 22 continually for more resolution to these 23 unresolved issues. 24 Thank you, Mr. President. I'll be 25 voting no.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: Any 2 other Senator wish to be heard on the bill? 3 Debate is closed, then. 4 The Secretary will sound the bell. 5 Read the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect upon enactment into law 8 by the State of New Jersey. 9 ACTING PRESIDENT MEIER: Call the 10 roll. 11 (The Secretary called the roll.) 12 ACTING PRESIDENT MEIER: Announce 13 the results. 14 THE SECRETARY: Those recorded in 15 the negative on Calendar Number 808 are 16 Senators Connor, Dilan, Gonzalez, L. Krueger, 17 Marchi, Onorato, Oppenheimer, Sabini, Savino, 18 Schneiderman, A. Smith and Stavisky. 19 Absent from voting on Calendar 20 Number 808: Senators Sampson and Wright. 21 Ayes, 47. Nays, 12. 22 ACTING PRESIDENT MEIER: The bill 23 is passed. 24 Senator Skelos, that completes the 25 controversial reading of the calendar.

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(518) 371-8910 1 SENATOR SKELOS: Thank you, Mr. 2 President. Is there any further business at 3 the desk? 4 ACTING PRESIDENT MEIER: We have 5 some motions, Senator Skelos. 6 SENATOR SKELOS: If we could make 7 them at this time. 8 ACTING PRESIDENT MEIER: Senator 9 Farley. 10 SENATOR FARLEY: Thank you. 11 On behalf of Senator Saland, on 12 page 76, Calendar 1091, Senate Print 2890, I 13 offer the following amendments and I ask that 14 the bill retain its place. 15 ACTING PRESIDENT MEIER: The 16 amendments are received, and the bill will 17 retain its place on third reading. 18 SENATOR FARLEY: On behalf of 19 Senator Winner, I offer the following 20 amendments to, on page 47, Calendar 693, 21 Senate Print 4814, and I ask that that bill 22 retain its place. 23 ACTING PRESIDENT MEIER: The 24 amendments are received, and the bill will 25 retain its place on third reading.

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(518) 371-8910 1 SENATOR FARLEY: On behalf of 2 Senator Marcellino, I offer the following 3 amendments to the bill on page 31, Calendar 4 Number 315, Senate Print 1286A, and I ask that 5 that bill retain its place. 6 ACTING PRESIDENT MEIER: The 7 amendments are received, and the bill will 8 retain its place on third reading. 9 SENATOR FARLEY: Mr. President, 10 on page 46, on behalf of Senator Seward, I 11 offer the following amendments to Calendar 12 682, Senate Print 4061A, and I ask that that 13 bill retain its place. 14 ACTING PRESIDENT MEIER: The 15 amendments are received, and the bill will 16 retain its place on the order of third 17 reading. 18 SENATOR FARLEY: Mr. President, I 19 wish to call up Senator LaValle's bill, 2963, 20 recalled from the Assembly, which is now at 21 the desk. 22 ACTING PRESIDENT MEIER: Just a 23 second. I mean, I can't hear. 24 If you have a conversation, take it 25 outside.

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(518) 371-8910 1 Senator Farley. 2 SENATOR FARLEY: Thank you, Mr. 3 President. 4 I wish to call up Senator LaValle's 5 bill, 2963, which was recalled from the 6 Assembly, which is now at the desk. 7 ACTING PRESIDENT MEIER: The 8 Secretary will read. 9 THE SECRETARY: Calendar Number 10 316, by Senator LaValle, Senate Print 2963, an 11 act to amend the General Business Law. 12 SENATOR FARLEY: Mr. President, I 13 now move to reconsider the vote by which this 14 bill was passed. 15 ACTING PRESIDENT MEIER: Call the 16 roll on reconsideration. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes, 61. 19 SENATOR FARLEY: Mr. President, I 20 now offer the following amendments. 21 ACTING PRESIDENT MEIER: The 22 amendments are received. 23 SENATOR FARLEY: Thank you. 24 ACTING PRESIDENT MEIER: Senator 25 Skelos, that completes our business.

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(518) 371-8910 1 SENATOR SKELOS: There being no 2 further business to come before the Senate, I 3 move we stand adjourned until Wednesday, 4 June 1st, at 3:00 p.m. Thank you. 5 ACTING PRESIDENT MEIER: On 6 motion, the Senate stands adjourned until 7 Wednesday, June the 1st, at 3:00 p.m. 8 (Whereupon, at 5:33 p.m., the 9 Senate adjourned.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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(518) 371-8910

Tuesday, May 31, 2005

Transcript

Bills on the floor