Rejecting the state’s motion to dismiss Hussein v. State of New York, a funding challenge brought by parents in a number of small city school districts, the Court of Appeals, New York’s highest court, yesterday re-affirmed the substantive right to the opportunity for a sound basic education that it had articulated almost a decade ago in CFE v. State of New York. Judge Susan B. Read, the sole dissenter in the case, had argued that the Court should re-consider the CFE precedent and strongly limit judicial review of adequacy cases that challenge the state’s education funding system. Her position was rejected by all six of her colleagues. Judge Carmen B. Ciparick, the author of the original 1994 CFE decision, wrote a strong concurring opinion in which she indicated that courts in states like New Hampshire that had not provided a substantive definition of educational adequacy in their constitutional rulings experienced more protracted and difficult compliance proceedings over the years than had the New York Courts in CFE.

Turning on its head Judge Read’s statement that the court’s attempt to define a “sound basic education” is “illusory, Judge Ciparick wrote that without definitional boundaries established by the courts, “it is the Education Article’s mandate of a State-provided free public education that becomes “illusory.” Judge Robert S. Smith also wrote a concurring opinion in which he interpreted the state’s argument on the instant motion as an invitation to abandon the CFE precedent, to which he responded,“ I do not believe we should now accept the invitation.”

The immediate issue in Hussein was whether plaintiffs’ challenge to the state education finance system should be permitted to proceed to trial. The state had made the bizarre argument that the issues the plaintiffs raised about the inadequacy of the present level of state aid to their schools were not “ripe” for determination at this time because the schools have not yet received the amounts promised to them under the 2007 CFE settlement. Of course, the reason that the promised funds are not yet in place is that the state, responding to fiscal pressures, decided to delay by 5 years its commitment to fully fund a sound basic education for the state’s students. The Court majority summarily rejected this position; Judge Smith noted in his concurring opinion that that if “the parents of children in those public schools are constitutionally entitled to have this money spent on their children’s educations, they are entitled to it now. They would be rightly dismayed to learn that their claims will not ripen for several years, until after their children have graduated.”

The case was remanded to the trial court, and the trial is expected to take place in 2013.