The challenge to the imposition of a $290 million penalty against New York City’s school children brought last year by 11 parents and Robert Jackson, former chair of the City Council’s education committee, is alive and well. Yesterday, New York State Supreme Court Justice Manuel Mendez denied the state’s motion to dismiss the case, Aristy-Farer v. State of New York. Governor Andrew Cuomo and the state legislature had imposed this penalty after the New York City Department of Education and its teacher and supervisory unions failed to agree on a plan for annual professional performance reviews (APPR) by an established deadline. An APPR plan has since been put into effect by order of the commissioner of education.

Plaintiffs argued that imposing this penalty on innocent school children, especially when the state has failed to provide them an adequate level of funding, violated their right to the opportunity for a sound basic education guaranteed by the state constitution. The complaint further claims that imposition of this penalty when a non-financial, non-punitive alternative (i.e. imposition of a plan by the commissioner) was available and was actually imposed was irrational and a violation of due process of law. The Court held that “plaintiffs have stated potentially meritorious claims of violations of the requirements of a sound basic education, due process and equal protection rights under the New York State Constitution.”

Plaintiffs in NYSER v. State of New York a recently-filed statewide challenge to the state’s entire system for funding public education, which is also pending before Justice Mendez, intend to file a motion to consolidate NYSER and Aristy-Farer, since both cases deal with similar allegations concerning the state’s failure to properly implement the orders of the Court of Appeals in CFE v. State of New York, and the fundamental issue in both cases in the denial of students’ constitutional right to the opportunity for a sound basic education.

April 9, 2014