An attempt by New York State’s Division of the Budget to deny funding to nine schools that had originally been designated as “persistently failing” but then improved sufficiently to be taken off the list of schools with that designation, was invalidated last month by Justice Kimberly O’Connor of the State Supreme Court, Albany Count. Cortes v. Mujica In connection with the state’s 2015 “receivership law” which established special procedures for the administration of “persistently failing schools,” the legislature provided a $75 million appropriation that was to be used to fund “transformation” grants that would support a range of comprehensive extra services in these schools such as mental health, extended learning time, teacher professional development, curriculum expansion and mentoring of “at-risk” students.

The grants, which were administered by the State Education Department, were to be expended over a two-year period pursuant to plans submitted by the individual schools and approved by the commissioner of education. The commissioner determined toward the end of the 2015-2016 that nine schools that had received these grants had made sufficient progress that they were removed from the “persistently failing” list for the next school year. The Division of the Budget, an executive agency operating under the aegis of the Governor, then announced that because the schools were no longer on the “persistently failing list,” they were not eligible for year 2 funding. The State Education Department stated that this stance would “punish the schools for their success,” but they were not able to convince the budget division to release the funds

In upholding the petition of parents from three of the affected schools seeking an order requiring the Division of the Budget to release the funds, the Court held there was nothing in the appropriation statute’s language that required “persistently failing” schools to maintain that status in order to continue to receive funds called for in the plan approved by the commissioner. Judge O’Connor stated that “a duly enacted budget statute once passed cannot be changed or varied according to the whim or caprice of an officer, board or individual . . .”