York's Highest Court Considers Other State Court Rulings During Oral Argument
in Campaign for Fiscal Equity (CFE) v. State
Chief Judge Judith
Kaye of the New
York Court of Appeals, the state's highest court, opened questioning at the
Oral Argument in CFE v. State, held May 8, 2003,
by asking plaintiffs' attorneys which state court opinions they recommended the
Court look to for guidance in formulating their decision in the CFE case. During
over two hours of oral argument, which the six judges extended to accommodate
their numerous questions, the Court referred to court decisions and remedial experiences
in Kentucky, New Jersey,
North Carolina, Texas,
case is before the Court on plaintiffs' appeal from a June 2002 intermediate-level
court decision, which held that the State meets its obligation to provide
the opportunity for a "sound basic education," New York's constitutional standard,
with the level of skills "imparted between grades 8 and 9." Michael A. Rebell,
CFE's Executive Director and Counsel, and co-counsel Joseph Wayland, a partner
at Simpson Thacher & Bartlett, argued that the lower court's decision must be
overruled and the State must provide the opportunity for a high school education
that prepares students to capably exercise their roles as citizens and prepares
them for competitive employment.
Arguing for the defendants, Deputy Solicitor
General Daniel Smirlock first defended the intermediate court's 8th-grade standard,
which the State had unabashedly urged the courts to adopt since the opening day
of trial in 1999, and, later, backed away from that position when at least a couple
of the judges were critical of that standard.
Most of the judges' questions
focused on how to articulate the constitutional standard and how to craft a workable
remedy that properly reflects the separation of powers and avoids long-term involvement
by the courts, as has occurred in New Jersey. Ironically, one Judge indicated
she might consider a remedy limited to the several hundred lowest performing schools,
even though the only state in which the court has not ordered a state-wide remedy
is New Jersey.
Later the same day, in Oral Argument in the Paynter v.
State case, the Attorney General's office pointed out to the Court that the
record in CFE established that money matters and, if spent on the right
programs, improves achievement among at-risk students. Attorneys for CFE
anticipate the Court's decision as early as late June of 2003.
May 12, 2003