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New 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, and Wyoming.

The CFE 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.

Prepared May 12, 2003