Rebell Claims Budget Cuts in N.Y. are Unconstitutional

In an op-ed piece that appeared in the New York Daily News last week, Michael A. Rebell, a professor at Teachers College and Columbia Law School who was co-counsel for plaintiffs in Campaign for Fiscal Equity (CFE) v. State of New York, argued that the substantial cuts in education funding proposed by Gov. Andrew Cuomo would violate the state constitution --- unless the state could demonstrate that the operating efficiencies being promoted by the governor could actually result in students receiving all of the core constitutional services needed to provide them the opportunity for a sound basic education. In a follow-up memorandum, Rebell provides extensive constitutional authority for these propositions.

Constitutional rights are a permanent affirmative obligation of the government, Rebell argues; they cannot be put on hold because there is a recession or a budget deficit. Ample precedent, both in the federal and state courts, confirms this claim. The U.S. Supreme Court has clearly held that “[f]inancial constraints may not be used to justify the creation or perpetuation of constitutional violations . . ..” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 392 (1992).  And the state courts have repeatedly applied this doctrine to the fiscal equity and educational adequacy context. See, e.g, Rose v. Council for Better Education 790 S.W. 2d 186, 208 (KY, 1989)(“the financial burden entailed in meeting [constitutionally mandated education provisions] in no way lessens the constitutional duty.”)

Changed circumstances may justify reconsideration of the manner in which constitutional rights are implemented. It is not enough, however, for the governor to exhort school districts to “do more with less.” The constitution requires the state to demonstrate that constitutionally appropriate services can and actually will be maintained despite the budget cuts they are putting into effect. As N.J. Judge Peter Doyne stated in his recent opinion on budget cuts in New Jersey, “Without sufficient proofs, any finding concerning the overall amount of savings for “efficiencies” would be mere speculation.”

Cuomo's school cuts are unconstitutional, says lead lawyer from Campaign for Fiscal Equity case

By Michael A. Rebell

Thursday, March 17th 2011

Gov. Cuomo's proposed budget cuts for education would violate the state Constitution, and the Legislature should not adopt them.

In 2007, I represented the plaintiffs in a precedent-setting case on school funding: Campaign for Fiscal Equity Inc. vs. State of New York. In a landmark decision, the state's highest court ruled that the existing system for financing public education was unconstitutional - and in response, the Legislature adopted far-reaching reforms to ensure all students their constitutional right to "the opportunity for a sound basic education."

This was not mere rhetoric. To reach this goal, our lawmakers promised schools in New York City and high-need school districts in other parts of the state an increase of $5.5 billion in basic state  "foundation" funding, as well as other increases, to be phased in over four years. All this was, in the minds of those we elect to write the laws, a necessary result of the court ruling - and a constitutional obligation.

Yet now, at the end of that four-year period, the promised increases have been stalled. That's troubling enough. Even more troubling, if Cuomo's proposed $1.5 billion cuts are enacted, virtually all of the state aid funding gains that New York City and other high-need districts have achieved since 2007 will be wiped out. Should this budget proposal be adopted, the state clearly will be violating its Constitution.

Constitutional rights are a permanent affirmative obligation of the government; they cannot be put on hold because there is a recession or a budget deficit. As the U.S. Supreme Court clearly put it in 1992, "Financial constraints may not be used to justify the creation or perpetuation of constitutional violations . . ."

That children's education rights cannot be temporarily suspended is not only a matter of law but also of common sense: A child who misses her opportunity to learn to read during the critical early school years forever falls behind. A teenager who drops out of high school rarely will return to complete his education. This is especially true for the low-income and minority-group students whose educational needs are the greatest and who tend to be the most detrimentally affected by service reductions.

The governor has argued that in this time of fiscal constraint, we must eliminate unnecessary legal mandates, adopt more cost-effective instructional techniques and improve operating efficiencies - and that these efforts might allow schools to maintain core services at reduced cost to the taxpayers. I agree that educational services can be delivered more effectively and that the present economic climate may provide opportunities to improve operations in areas like special education, as well as to retain more high-quality teachers and to eliminate a number of obstacles to efficient service delivery.

From a constitutional point of view, however, the governor and the Legislature have an obligation not merely to exhort school districts to “do more with less,” but to demonstrate that constitutionally appropriate services can and will actually be maintained despite the budget cuts they are putting into effect.

Just four years ago, the governor and the Legislature determined—after the lengthy trial, input from a governor’s commission and three major cost studies—that a multi-billion-dollar increase was necessary to fund the state’s education system properly. Since that time no one has considered or proposed any mechanisms that would allow school districts to delivery core constitutional services for less than those amounts.

Yet now, in order to close budget deficits, the governor and Legislature are trying to offset the constitutionally established “foundation” funding levels with other massive school funding cuts. This enables them to maintain a commitment to constitutional compliance with one hand, while totally squelching the reality of compliance with the other. Full compliance with the constitution is still the goal, they claim, but that compliance will be put off for another three to five years.

That’s disingenuous and unfair.

Years of further delay are simply unacceptable. With the lives of millions of children at stake, the state cannot merely assert or assume that sound basic education can actually be provided for less; it must affirmatively demonstrate that this can be done. Until and unless that happens, the state has an obligation at least to maintain the status quo. That means continuing to provide at least the current level of services to low-income children—and maintaining the current income tax surtax on the wealthy to pay for it.

Safeguarding Students’ Right to a Sound Basic Education: What the State Constitution Requires the Governor and the Legislature to Do in Response to the State’s Current Fiscal Constraints

By Michael A. Rebell

In 2003, the Court of Appeals, New York’s highest court, held that Art. I, § 11 of the New York State constitution guaranteed all students in the state the opportunity for a “sound basic education.” In addition, the court concluded on the basis of evidence gathered in an extensive seven-month trial that the state’s existing system for financing public education was unconstitutional because it failed to provide students in New York City such an opportunity Campaign for Fiscal Equity, Inc. (CFE) v. State of New York, 100 N.Y. 2d 893 (2003) (CFE II).(1) Four years ago, in response to the CFE litigation, the legislature adopted far-reaching reforms to ensure all students throughout the state their constitutional right to the opportunity for a sound basic education.(2)

The State Budget and Reform Act of 2007 promised schools in New York City and high need school districts in other parts of the state an increase of  $5.5  billion in basic state aid “foundation” funding, as well as other increases, to be phased in over four years. Now, at the end of that four-year period, the promised increases have been stalled, and, if the legislature accepts Governor Andrew Cuomo’s proposals for the next fiscal year, virtually all of the state aid funding gains that New York City and other high need districts have achieved since 2007 will be wiped out.

Should the legislature adopt the governor’s proposals, the state will be violating the state constitution. Constitutional rights are a permanent obligation of the government; they cannot be put on hold because there is a recession or a budget deficit. This is especially true in New York in regard to students’ right to the opportunity for a sound basic education, which is the only social service for which the state has an affirmative obligation under the state constitution.

This is not to say that changed circumstances cannot justify reconsideration of the manner in which constitutional rights are implemented. The governor has argued that in this time of fiscal constraint extra efforts to eliminate unnecessary legal mandates, adopt more cost-effective instructional techniques, and improve operating efficiencies are in order, and that these efforts would allow schools to maintain core constitutional services at reduced appropriations levels. The governor may be correct, but, from a constitutional point of view, he and the legislature have an obligation not merely to exhort school districts to “do more with less,” but to demonstrate that constitutionally appropriate services can and actually will be maintained despite the budget cuts they are putting into effect.  

Students’ right to a sound basic education impose a heavy burden of proof on the state to demonstrate precisely how constitutionally mandated services can now be provided for less than the amounts that the legislature had determined only a few years ago were necessary and appropriate in its response to the court’s orders in the CFE litigation. The balance of this paper will set forth the constitutional precedents that support this conclusion.

I. Students’ Constitutional Rights Cannot Be Put on Hold Because of the State’s Fiscal Constraints

The U.S. Supreme Court has clearly affirmed that “[f]inancial constraints may not be used to justify the creation or perpetuation of constitutional violations . . ..” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 392 (1992 (addressing defendants’ request to modify a consent decree remedying unconstitutional conditions of confinement for pretrial detainees); see also Watson v. City of Memphis, 373 U.S. 526, 537 (1963) (“vindication of conceded constitutional rights [to park desegregation] cannot be made dependent upon any theory that it is less expensive to deny than to afford them”); Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (“[t]he saving of welfare costs cannot justify an otherwise invidious classification”).

The New York Court of Appeals has similarly ruled that fiscal considerations cannot undermine constitutional rights. For example, in Klostermann v. Cuomo 463 N.E.2d 588, (N.Y. 1984), state defendants argued that mental health patients’ constitutional and statutory claims to needed services were nonjusticiable because there “simply [was] not enough money to provide the services that plaintiffs assert[ed] [were] due them” Id. at 594.The Court of Appeals rejected defendants’ arguments, affirming that the failure to provide suitable treatment could not be “justified by lack of staff or facilities” and finding the state’s defense “particularly unconvincing when uttered in response to a claim that existing conditions violate an individual’s constitutional rights” Id. (internal quotation omitted). See also, e.g. Hurrell-Harring v. State, 930 N.E.2d 217, 219 (N.Y. 2010) (although upholding sixth amendment claim to right to effective counsel might “necessitate the appropriation of funds and perhaps, particularly in a time of scarcity, some reordering of legislative priorities,” this did not relieve the court of its “essential obligation to provide a remedy for violation of a fundamental constitutional right”); Tucker v. Toia, 390 N. Y. S. 2d 794, 803 (S. Ct. Monroe Co., 1977, aff’d 43 N. Y. 2d 1 (1977) (“the State may not refuse persons seeking public assistance in violation of their constitutional rights and justify such action solely on the ground of fiscal responsibility or necessity”).

Courts in other states have also consistently enforced the doctrine that constitutional rights cannot be denied because of state budget constraints. For example, in a case involving the right of foster children’s to basic services, the Washington Supreme Court held that that “[l]ack of funds does not excuse a violation of the Constitution, and this court can order expenditures, if necessary, to enforce constitutional mandates” Braam v. State, 81 P.3d 851, 862-63 (Wash. 2003). See also, e.g., Blum by Blum v. Merrell Dow Pharmaceuticals, Inc., 626 A.2d 537, 548 (Pa. 1993) (“[F]inancial burden is of no moment when it is weighed against a constitutional right.”) 

Moreover, as the Kentucky Supreme Court has stated, the general constitutional rule that “the financial burden entailed in meeting [constitutionally mandated education provisions] in no way lessens the constitutional duty” clearly applies to the fiscal equity and educational adequacy contexts. Rose v. Council for Better Education 790 S.W. 2d 186, 208 (KY, 1989).  Similarly,  addressing fiscal shortages in the state, the Supreme Court of Wyoming held:

We recognize and respect the substantial time and effort expended by the legislature over the years in an effort to reform our state’s public school finance system. We also note that much of this effort took place in an environment of tax revenue shortfalls. However . . . the constitution provides that education funding is a fundamental right of our citizens and lack of financial resources will not be an acceptable reason for failure to provide the best educational system.

State v. Campbell County Sch. Dist., 19 P.3d 518, 566 (Wyo. 2001) 

II. The Courts Have Specifically Held that Reductions in Appropriations for Education Because of Budget Deficits Are Unconstitutional

A number of state courts have, in fact, applied the general doctrine that constitutional rights cannot be disregarded because of fiscal constraints to the specific circumstances of budget cuts affecting public education in times of recession. Significantly, all of the courts that have specifically considered this issue have affirmed children’s rights to maintenance of constitutionally mandated services in times of fiscal constraint.

The first judicial review of a governor’s power to cut educational funding during a fiscal crisis arose in the 1980s in the state of Washington. At that time, the Seattle school district sought an injunction to stop the governor from applying to them an executive order that instituted an across-the-board expenditure reduction program in response to a financial exigency. After an extensive trial, the trial judge ruled that the across-the-board funding reduction, as applied to basic education programs, was unconstitutional, stating:

The duty and responsibility of the State to fully fund the common school program required by Article IX, Sections 1 and 2, is not suspended in any part during period of fiscal crisis, even where the existing tax revenue is not sufficient to fund [all of the] programs that the Legislature believes are necessary to meet the needs of the people of this State.

Seattle et al. v. State, No. 81-2-1713-1, Findings of Fact and Conclusions of Law (Superior Ct,. Thurston Co, Sept 7, 1983, pp. 62-63) (3)

In New Hampshire, the state supreme court was asked to consider the constitutionality of a statute that provided that “[t]he state board of education shall have the power to approve for a reasonable period of time a high school that does not fully meet the requirements [for an approved school] if in its judgment the financial condition of the school district or other circumstances warrant delay in full compliance”(4) The court held in no uncertain terms that:

Excused noncompliance with the minimum standards for financial reasons alone directly conflicts with the constitutional command that the State must guarantee sufficient funding to ensure that school districts can provide a constitutionally adequate education. As we have repeatedly held, it is the State's duty to guarantee the funding necessary to provide a constitutionally adequate education to every educable child in the public schools in the State.

 Claremont School Dist. v. Governor, 794 A.2d 744,754 (N.H., 2002)

In California, the State Supreme Court upheld a preliminary injunction requiring the state to ensure the continuation of educational services for students in a school district that had run out of funds and had announced plans to terminate the semester six weeks early Butt v. State, 4 Cal. 4th 668 (CA, 1992).  The court held that the state had ultimate responsibility for ensuring students’ rights to an equal educational opportunity and that “the District's impending failure to complete the final six weeks of its scheduled school term would cause educational disruption sufficient to deprive District students of basic educational equality” Id. at 692.

The most extensive consideration of the issue of maintaining constitutionally mandated programs during times of fiscal constraint has occurred in a series of cases over the last decade in New Jersey. There, the state repeatedly asked the New Jersey Supreme Court to relax constitutional requirements because of budgetary pressures. The first such instance occurred in 2002 when the state department of education asked the court to allow it to limit funding to the prior year’s level for certain supplemental compensatory services programs in urban school districts that the court had ordered in the state’s long-pending education adequacy litigation. The court, although allowing the department some flexibility in the programmatic rules and initial funding assumptions, refused to impose the requested funding cap Abbott v. Burke, 798 A. 2d 602 (N.J. 2002).

A year later, the department of education again asked the court to maintain the budget for the supplemental programs at the previous year’s level while it evaluated the programs’ effectiveness and efficiency. The court agreed to treat the 2003-2004 school fiscal year as a  “maintenance year,” in which no new programs would be introduced, but it added the following important proviso: “A maintenance budget shall mean that a district will be funded at a level such that the district can implement current approved programs, services, and positions and therefore includes documented increases in contracted salaries, health benefits and special education tuition” Abbott v. Burke, 832 A. 2d 906, 907 (N.J., 2003). In other words, although the court was willing to slow the pace of introduction of new programs and facilitate the state’s efforts to evaluate the effectiveness of the existing programs, it insisted that the programs that had already been put into place must be maintained, at full strength, and that if additional funds were needed to cover unavoidable cost increases, the state would need to cover those additional costs.(5)

Most recently, responding the Abbott plaintiffs’ claim that the extensive cuts to the state education budget enacted over the past two years by Governor Chris Christie and the New Jersey legislature, the New Jersey Supreme Court in January 2011 appointed a special master, Superior Court Judge Peter E. Doyne, who had served in this capacity in prior Abbott compliance matters,  to conduct a hearing to determine whether the current levels of funding are sufficient to provide New Jersey school children a thorough and efficient education. The court held that the state must bear the burden of demonstrating that the present level of school funding can provide for a thorough and efficient education as measured by the comprehensive core minimum standards in districts with high, medium, and low concentrations of disadvantaged students.(6)

On March 22, 2011 the special master issued a 96- page opinion that found that the state had failed to carry its burden of demonstrating that students can be provided a thorough and efficient education at the reduced funding levels. Abbott v. Burke, No. M-1293, Opinion/Recommendations to the Supreme Court ( Sup. Ct, Bergen Co, March 22, 2011). A major part of the state’s case was a claim that “There are various efficiencies which could be accomplished in each district.” Id at 55. Over eight days of hearings, Judge Doyne heard extensive evidence on the actual impact of the cuts in six districts in various parts of the state.(7) Although he acknowledged that a number of efficiencies had been effectuated in these districts, he held that “without quantification of the savings achieved or to be achieved by all districts for the FY 11 fiscal year, it is impossible to find, based on anecdotal evidence alone, [sic] these efficiencies would significantly impact the effectuated reductions.” Id. at 62. (emphasis added.) He then concluded that:

[T]he Court cannot abandon or waiver from its constitutional commitment. Although discretion had been afforded to the individual districts to spend their allocated monies in a manner that best serves those district needs, it was painfully obvious important support and ancillary programs have been eliminated in effectuating the imposed reductions. These programs had helped bring our at-risk and under-performing students closer to the mandated standards.

Id at 94. The constitutionality of the state’s budget cuts will now be finally decided by the New Jersey Supreme Court which has directed all of the parties to submit their briefs responding to the special master’s report by April 21, 2011.

III. The State Has an Affirmative Obligation to Demonstrate Specifically How Under Current Economic Circumstances Schools Can Provide Constitutional Services at a Lower Cost

Although the courts will insist on vigorous enforcement of the right to meaningful educational opportunity even in times of economic downturn, a number of courts have also stated that that appropriate measures may be taken to minimize the actual costs of constitutional compliance. The U. S. Supreme Court has specifically held in this regard that although a state cannot deny important constitutional benefits for reasons of cost, economic factors may be considered, for example, in choosing the methods used to provide meaningful access to services (Bounds v. Smith, 430 U.S. 817, 825 (1977)), in crafting appropriate remedies, and in tailoring modifications to consent decrees Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 392-93 (1992). See also, Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (advising trial court in a prison reform case that the remedy should not be “unnecessarily expensive”)). Each of these decisions emphasizes, however, that cost constraints cannot allow remedies to fall beneath that which would be required to vindicate the constitutional right. The Supreme Court in Rufo, while finding that costs are “appropriately considered in tailoring a consent decree modification” 502 U.S. at 393, emphasized that the modification in question could not “create or perpetuate a constitutional violation” and should not “strive to rewrite a consent decree so that it conforms to the constitutional floor” 502 U.S. at 391.  Similarly, the court in Wright reaffirmed that “costs cannot be permitted to stand in the way of eliminating conditions below Eighth Amendment standards” 642 F.2d at 1134.

Applied to the current situation, this means that although states cannot reduce educational services below constitutionally appropriate levels, they can respond to immediate fiscal exigencies by providing the constitutionally mandated level of services in more cost-effective ways. In New York, the governor is seeking to reduce the costs of providing educational services through mandate relief measures, providing incentives for school districts to develop more cost-effective ways to provide instruction, and promoting management efficiencies. If because of these or other initiatives, the constitutionally required level of services can, in fact, be provided at lower cost levels than the legislature had determined in the 2007 Budget and Reform Act, constitutional requirements might be satisfied. At this point, however, the governor has provided no specifics concerning what these mandate relief items, instructional economies, or management efficiencies might be, how many dollars might actually be saved through these measures, or how constitutional services would be maintained.

Abstract admonitions to school districts to “do more with less” clearly do not pass constitutional muster. As Judge Doyne noted in his recent special master opinion in Abbott v. Burke, supra, “Without sufficient proofs, any finding concerning the overall amount of savings for “efficiencies” would be mere speculation.” Id at 62-63. To meet their affirmative obligations to ensure all students the opportunity for a sound basic education, the governor and the legislature must demonstrate that the appropriations they are enacting are, in fact, sufficient to provide in school districts throughout the state -- and especially in New York City and other high need districts -- a level of services sufficient to meet the constitutional mandate. As the Court of Appeals held in CFE III, when constitutional compliance is at issue, the state has a responsibility to show that its proposed budget provides a “reasonable estimate…of the cost of providing a sound basic education” 8 N.Y. 3d at 29.

The principles that the Court of Appeals articulated in CFE v. State of New York remain in effect despite the state’s budget deficits. This means that the state has a continuing obligation to ensure that its education funding system (a) provides a funding level that reflects the actual cost of providing a sound basic education; (b) utilizes a foundation funding mechanism that ensures that state aid is correlated with school district needs; and (c) includes an accountability system that ensures that the funds are used effectively to provide all students an opportunity for a sound basic education CFE II, 100 N.Y. 2d at 930; CFE III, 8 N.Y. 3d at 21.

At this late date, it is doubtful that, before its April 1, 2011, deadline for enacting a new state budget, the legislature will be able to undertake the necessary analyses and meet the constitutional requirements for demonstrating that a sound basic education can be provided for less than the amounts required by the 2007 Budget and Reform Act. Under these circumstances, the legislature should provide sufficient funding at least to maintain current services (see Abbott v. Burke, 2003, supra), and the governor should implement a constitutionally appropriate procedure to determine whether and how the opportunity for a sound basic education can be provided to all students in the State of New York in a more cost-efficient and cost-effective manner.