In 1978, a group of property-poor school districts, joined by the five large urban New York districts, filed Levittown v. Nyquist , to challenge the state’s education finance system. In its 1982 decision, 439 N.E.2d 359, the Court of Appeals– New York State ‘s highest court–ruled that while substantial inequities in funding did exist, the state constitution does not require equal funding for education. However, the court also held that the state constitution guarantees students the right to the opportunity for a “sound basic education.”
This right was at the center of the CFE v. State complaint filed in 1993 which asserted that New York State was failing in its constitutional duty to provide the opportunity for a sound basic education to hundreds of thousands of its schoolchildren. In a landmark 1995 decision, the Court of Appeals distinguished its Levittown ruling and remanded the case for trial. After a seven-month trial, Justice Leland DeGrasse rendered his decision, 719 NYS 2d 475, on January 10, 2001 in favor of plaintiffs and ordered the State to ensure that all public schools provide the opportunity for a sound basic education to their students. This decision also ordered a costing-out study as the threshold task in developing a new school funding system.
In June 2002, the intermediate-level appeals court overturned the trial-court ruling and claimed that an eighth-grade education was all the New York State Constitution required. Plaintiffs appealed, and the Court of Appeals issued its decision (CFE II) in favor of plaintiffs on June 26, 2003. See 100 N.Y.2d 893. The court considered school funding court rulings in other states during oral argument and its court order in favor of plaintiffs gave the State until July 30, 2004 to:
[D]etermine the cost of providing a sound basic education fund those costs in each school, and establish an “accountability” system to ensure that the reforms actually provide the opportunity for a sound basic education.
When the July 30, 2004 deadline passed without state action, the case went back to Justice DeGrasse who appointed a panel of three special masters to hold hearings on the matter and make recommendations to the court. On November 30, 2004, the panel issued its Report and Recommendations and, in sum, urged the court to order the state to enact legislation within 90 days that would:
Provide an additional $5.63 billion for annual operating aid, phased in over a four-year period; undertake a new cost study every four years to determine the cost of a sound basic education; provide an additional $9.2 billion, phased in over a five-year period, for building, renovating, and leasing facilities, in accordance with plaintiffs’ BRICKS Plan.
These recommendations were limited by the CFE II decision to New York City, but the panel concurred with all parties in their agreement that the legislature would be well-advised to extent similar benefits to high need districts throughout the state.
In March 2005, the trial court confirmed the special masters’ report and recommendations and ordered the state to comply within 90 days. The state appealed.
In March 2006, the intermediate appeals court ordered the state to increase New York City schools’ annual operating funds by at least $4.7 billion per year, to be phased in over four years, and provide an infusion of at least $9.2 billion in facilities funding, to be accomplished within five years. The court set an April 1 deadline, and on April 1 the legislature enacted facilities funding that met the court’s requirement and will increase such funding for other school districts across the state. The state did not comply with the operational funding order.
In November 2006, the Court of Appeals reaffirmed its 2003 landmark decision but held that $1.93 billion was the “constitutional floor” for additional operating funds, although the legislature could provide the full amount recommended by the Special Masters and the lower courts. In January 2007, the newly-elected Governor, Eliot Spitzer, recommended an increase in funding for New York City public schools of $5.4 billion (of which the City would be responsible for $2.2 billion) and $4 billion for the rest of the state. He also proposed a range of education finance and accountability reforms. The legislature largely accepted the Governor’s proposals.
The new accountability requirements direct school districts receiving increases of 10% or $15 million in state aid ( including New York City) to develop “Contracts for Excellence,” detailing their plans for using the additional funding. Under the legislation, the new funding must be devoted to programs related to “class size reduction, programs that increase student time on task, teacher and principal quality initiatives, middle school and high school restructuring, and full-day kindergarten or prekindergarten.” Districts are required to direct the new funding and these programs to students with the greatest educational needs. New York City is also required to develop a five-year plan for reducing class sizes.
APPR Penalty Case
In a lawsuit in February, 2013, nine New York City parents and their children challenged the constitutionality of a state statute that required the revocation of $290 million in state aid to New York City because the city failed to reach agreement with the teachers union on a teacher evaluation plan by January 17, 2013, a deadline established by the governor. The plaintiffs allege that the students are innocent victims of a negotiating impasse between the city and the union for which they had no responsibility. The complaint charges the State of New York, Governor Andrew Cuomo, and Education Commissioner John King with depriving New York City kids of their right to a sound basic education. Aristy-Farer v. State of New York.
New York City was only six school districts out of about 700 in the state that did not meet the deadline for implementing a new system for annual professional performance reviews (APPR), its public schools educate over one million students. The complaint does not take a position on the teacher evaluation plan or on who was at fault for the impasse in the negotiations, but grounds its challenge on the claim that:
imposing a penalty in the form of reduced funding and reduced educational services on public school students…violates the constitutional right of plaintiff students and the approximately one million other students attending the New York City public schools to a meaningful opportunity for a sound basic education and to due process and equal protection of the laws.
The city’s department of education indicated that it would need to implement a hiring freeze that would increase class sizes, reduce school aide time, professional development, anti-bullying programs, pre-kindergarten special education, extracurricular activities, after-school and other programs as a result of the loss of these funds. State Supreme Court Justice Manuel Mendez promptly issued preliminary injunctions to prohibit the state from withholding the funds and the city from making the planned mid-term reductions in state services. The $290 million was, however, withheld at the end of the school year, and will affect school services for the 2013-2014 school year.
New York State Supreme Court Justice Manuel Mendez denied the state’s motion to dismiss the case, Aristy-Farer v. State of New York in April 2014. In September, 2016, the Appellate Division, First Department affirmed his decision. Judge Mendez has now consolidated this case with New Yorkers for Students’ Educational Rights v. State of New York, and the appellate division also affirmed the consolidation.
New York State United Teachers v. the State of New York
In September 2014, the state teachers union and other plaintiffs challenging a state property tax cap enacted in 2011 by Governor Cuomo and the New York state legislature suffered a set-back when a state supreme court judge granted the state’s motion to dismiss the action.
New York State United Teachers (“NYSUT”), along with eight individual plaintiffs, had sought to have the New York state tax cap declared unconstitutional as applied to school districts. The so-called tax cap, formally Education Law §2023(a), was enacted in 2011 to, in the words of Governor Cuomo’s spokesperson, “restore fiscal sanity to the state.” Accordingly, the tax cap requires localities seeking to raise real property taxes in excess of 2% or the increase in inflation in the base year, whichever is lower, to first obtain a 60% supermajority approval of voters or elected board members. Plaintiffs attacked the tax cap on numerous constitutional grounds, including violation of the state constitution’s Education Article and Equal Protection Clause, among other claims.
Before dismissing each of plaintiffs’ claims, the trial court ruled that the plaintiffs had standing to pursue their action. This ruling was important because of its implications on future challenges brought by these or other plaintiffs. As plaintiffs argued, dismissal on such grounds would have “effectively insulated” an important constitutional issue from judicial review. On the merits, the court emphasized that legislative enactments in New York “enjoy a strong presumption of constitutionality,” and that facial challenges may only succeed by establishing “that the law is unconstitutional in all of its applications.”
The court interpreted both Board of Education Levittown Union Free School District v. Nyquist, 57 NY2d 27 (1982), and Campaign for Fiscal Equity v. State, 87 NY2d 307 (1995), to allow “disparities in educational funding among school districts arising from the State’s financing scheme [which are] rationally based upon and reasonably related to a legitimate State interest, the preservation and promotion of local control of education.” According to the court, plaintiffs’ claims were a recasting of the rejected arguments in Levittown by “property-poor” districts that were unable to raise as much local tax revenue as “property-rich” districts, resulting in funding inequities.
The plaintiffs are appealing that decision.
Two additional cases, Paynter v. State and NYCLU v. State, were filed in 1998 and 2001, respectively, and alleged denial of the opportunity for a sound basic education. In 1998, the NYCLU also filed a case in federal court, Ceasar v. Pataki, alleging violation of students’ rights under Title VI.
In 2002, the federal district court for the Southern District of New York dismissed Ceaser v. Pataki; and the state court dismissed the NYCLU v. State case. On June 26, 2003, the New York Court of Appeals dismissed the Paynter case.
In June 2015, New York State Supreme Court Justice Donna M. Siwek denied a motion to dismiss and allowed a lawsuit to move forward that challenges the way the state distributes educational aid to charter schools (Brown v. State of New York). The case was filed by charter school parents in Buffalo and Rochester. Their complaint alleges that the state’s failure to provide facilities funding for their schools denies them the opportunity for a sound and basic education. According to the plaintiffs, charter schools receive 25% less funding than public schools across the state, and almost 40% less in Western New York. Plaintiffs also argue that charter schools lack essential facilities such as “sufficient classrooms, gymnasiums, libraries, science labs, computer labs, cafeterias, common rooms, employee offices, and athletic fields.”
Although the trial court judge had denied the state’s motion to dismiss the complaint, in October,2016, the Appellate Division, 4th Department, reversed that holding and dismissed the complaint. The appeals court stated that the purpose of the constitution’s sound basic education provision was “to constitutionalize the traditional public school system, not to alter its substance.” The Court held that if the traditional public school system offers students a sound basic education, “then the constitutional mandate is satisfied,” indicating that students who choose to go outside that system by attending charter schools that are “governed by an independent, self-selecting board of trustees and are exempt from a multitude of rules and regulations that are applicable to traditional public schools,” do so without constitutional protection.
The Court further stated that, assuming arguendo that schools in the Buffalo and Rochester city school districts are not providing their students the opportunity for a sound basic education, providing more funding to charter schools cannot be considered a proper remedy for such a deficiency because” to divert public education funds away from the traditional public schools and towards charter schools would benefit a select few at the expense of the “common schools, wherein all the children of this State may be educated.”
New Yorkers for Students’ Educational Rights v. State of New York
Fifteen parents from throughout New York State, along with a coalition of statewide education groups, filed a lawsuit in February 2014 on behalf of the state’s public school students, charging that the state is neglecting its constitutional obligation to ensure that every school has sufficient funding to provide all students a meaningful educational opportunity. The suit is being led by Michael A. Rebell, who successfully litigated the Campaign for Fiscal Equity (CFE) v. the State of New York case.
The suit alleges that, in many schools around the state, schools are unable to provide students with the full range of resources that are constitutionally required because of limited budgets.
Basic state aid for school operations is now almost $4 billion below the amount that the legislature declared in 2007 was necessary to provide students the opportunity for a sound basic education in the CFE case. Following CFE, in 2007, the state legislature enacted reforms to the state aid system that promised students, not only in New York City, but throughout the state, billions of dollars in increased funding and a more equitable distribution of state aid. Since the recession of 2008, however, the state has not lived up to these commitments.
The lawsuit asks the court to invalidate several caps and funding adjustments that the plaintiffs claim are unconstitutional on their face, and also seeks to ensure that now and for the future every school is provided adequate funding and is able to provide all students a meaningful educational opportunity.
Defendants filed a motion to dismiss, which was denied by Manuel Mendez, Justice of the state Supreme Court in November 2014. His decision was affirmed by the Appellate Division, First Department in September 2016.
The Court of Appeals affirmed the denial of the motion to dismiss, with modifications in June 2017. Its decision held that plaintiffs could not assert claims on a general state-wide basis, but must prove that in particular districts students today are not receiving the opportunity for a sound basic education. The court found that plaintiffs had pleaded viable claims regarding the state’s failure to provide a meaningful opportunity for a sound basic education for students in New York City and Syracuse, and that the case can proceed to trial in regard to those districts.
In order to maintain the state-wide focus in this case, plaintiffs filed an amended complaint in December, 2017 that adds to its claims about New York City and Syracuse additional specific allegations that students in a small city (Schenectady), a high need suburban district (Central Islip) and a rural district (Gouverneur) are also not currently receiving the opportunity for a sound basic education as required by the state constitution. The amended complaint also updated and strengthened the allegations regarding resource deficiencies in New York City and Syracuse. The amended complaint further emphasizes that the State has failed to provide policies and resources to allow schools to prepare students properly to function productively as civic participants, the main purpose of a sound basic education, according to the Court of Appeals decision in the CFE litigation.
The case has been in an active discovery phase for the past two years, preparing for a trial in early 2022.
In a budget bill enacted in April 2021, the State agreed to fully pay out the remaining amounts due under the Foundation Aid formula adopted in the wake of the CFE decisions ( approximately $4 billion including inflation and other adjustments) over the next three fiscal years, starting with an increased appropriation of $1.4 billion for the 2021-2022 school year. This development may lead to settlement of the NYSER case. The plaintiffs are seeking a court-ordered guarantee that the State fully honor its funding commitment, as well as an objective transparent procedure for determining the amounts necessary in future years to provide all students the opportunity for a sound basic education.
Maisto v. the State of New York
After largely complying with the funding increases required by CFE-inspired 2007 budget bill for the first, two years of the scheduled four-year phase-in, the state legislature froze further payments scheduled for 2009-10, and reduced allocations to New York City and other high need districts throughout the state in 2010-2011 and 2011-2012; they also enacted legislation delaying full funding of the scheduled increases, now until the 20015-2016 year. These issues are discussed in more detail in Michael A. Rebell, Safeguarding the Right to a Sound Basic Education In Times of Fiscal Constraint.
In 2009, a number of small city school districts filed an adequacy challenge to the state’s education funding system before the reductions in education funding were enacted, but later added allegations related to the cuts to their complaint, in a case then-captioned Hussein v. State of New York, Index No. 8997-08 ( S.Ct, Alb Co.). In June 2012, the Court of Appeals rejected a motion to dismiss filed by the state by a 6-1 vote and, through two concurring opinions, re-affirmed the substantive right to the opportunity for a sound basic education that it had articulated in CFE v. State of New York.
The case was later renamed Maisto v State of New York. A trial was held in the spring of 2016. In September 2016, the trial judge issued a decision that rejected plaintiffs’ claims and dismissed the case (Maisto v. State of New York).
The judge essentially ignored all of the evidence of inadequate educational inputs and below par educational outcomes that had been presented by the plaintiffs during the months-long trial; instead, she ruled as a matter of law that the state need not provide the level of aid that its own foundation aid formula had determined to be necessary to provide students the opportunity for a sound basic education.
Although she agreed that the performance of the students in the plaintiffs’ districts was “not acceptable,” Justice Kimberly A. O’Connor determined that the action that is required is “not in the form of a specific dollar amount, but is instead a blend of funding, oversight, and proper allocation of resources by the districts.” She also held that the detailed analysis of whether there is a causal link between insufficient resource inputs and unacceptable student performance outputs that the Court of Appeals had undertaken in 2003 in CFE v. State of New York when it upheld the plaintiffs’ claims of inadequate funding for students in New York City was no longer necessary because we are now “in the post-CFE environment.”
Plaintiffs appealed the state Supreme Court judge’s decision to the Appellate Division, Third Department. The appeals court unanimously decided in October 2017 to reverse the decision and send the case back to the trial court to issue specific findings on whether the plaintiffs had presented sufficient evidence that inadequate resources are a direct cause of the poor educational outcomes of students in those districts.
The Appellate Division strongly rejected the notion there is a “post-CFE environment,” and the indication that the Court of Appeals’ approach to analyzing constitutional deficiencies in CFE applied only to that case. Noting that the Court of Appeals had recently re-affirmed the continued relevance of the CFE precedent for current litigations last June in its decision in Aristy-Farer/NYSER v. State , the Court held that Justice O’Connor must now review the voluminous evidence that the parties had presented and provide specific findings of fact for each of the eight school districts regarding the needs of their respective students and undertake an inputs/outputs analysis of the extent to which there is a direct causal link between insufficient state funding and the unsatisfactory performance levels of the students in those districts.
In January, 2019, Justice O’Connor issued a 113-page opinion that again concluded plaintiffs had failed to meet their burden of proof and that the case should be dismissed.
In this decision, Justice O’Connor acknowledged that the educational outputs in all eight districts are “undeniably inadequate” and concentrated on the question of whether resource inputs were inadequate and, therefore, caused the unacceptable outcomes. She systematically examined issues of class size, teacher qualifications, facilities, instrumentalities of learning, and supplemental services for “at-risk” students in each of the districts. She then concluded that resources were adequate in all of these areas in all of the districts and that the basic cause of the inadequate outcomes was “ineffective leadership” and failures to “reevaluate … operations and allocation of resources.”
In May, 2021, in a striking decision, a five-judge panel of the Appellate Division, Third Department, ruled unanimously that the plaintiffs in each of eight small-city New York school districts had proved they were being denied the opportunity for a sound basic education guaranteed by Article XI of the New York State Constitution.
This decision again criticized Justice O’Connor,but rather than remanding the case to the trial court once again, the appeals court decided this time to undertake a rare “de novo” review and study the voluminous 5,000-page trial transcripts and 30 boxes of exhibits themselves and issue a final ruling, without any further input from the trial judge.
In its 52-page decision, the appeals court emphasized the needs of the “at-risk” student population in these districts. The plaintiffs had presented extensive evidence that many of the districts lacked adequate academic intervention services (AIS) for students struggling academically, language services for students learning English, as well as social workers and guidance counselors. Emphasizing the importance of these resources, the Court wrote:
Although we agree with Supreme Court that the educational system cannot be charged with resolving all of society’s problems, we believe that the services and programming in question are foundational, and the level provided was insufficient to meet student need.
In addition, the Court criticized Justice O’Connor for her wholesale rejection of the testimony of plaintiffs’ expert witnesses and for failing to accept one of the experts’ findings regarding the importance of small class sizes, especially considering the Court of Appeals’ precedent on this point in the CFE case. The Court also expounded upon, and applied to this case, legal principles established by the Court of Appeals, in the CFE litigation:
The Education Article requires defendant to offer “all children” the opportunity for a sound basic education … including those who “present with socioeconomic deficits” (Campaign for Fiscal Equity v. State of New York, 100 NY 2d at 915). … As explained by multiple qualified witnesses, providing at-risk students with a meaningful high school education … necessarily requires two general categories of resources: (1) a student and family support team comprised of adequate numbers of social workers, guidance counselors and parent and community liaisons; and (2) early, intensive academic interventions and extended learning opportunities. As noted by the Court of Appeals in CFE II, “all children can learn given appropriate instructional, social, and health services” …. [A]dequate AIS programming, language services and support personnel are relevant factors to consider when assessing the inputs portion of such a claim.
The panel of judges also noted, “Proof that a school district or its board of education has mismanaged its district is not defense to an otherwise established Education Article claim, as school districts are agents of [the State] (see [CFE II] at 922).”
The Appellate Division did not determine a remedy for these extensive constitutional violations; instead, it remitted the case to the trial court for further proceedings to determine an appropriate remedy.
The state has petitioned for leave to appeal this decision the the New York Court of Appeals.