Rejecting the state’s attempt to dismiss a major litigation seeking to enforce the funding and other constitutional mandates established in the Campaign for Fiscal Equity v. State of New York litigation (“CFE”), Justice Manuel J. Mendez of the New York State Supreme Court, New York County, issued an order this week that upholds the right of the plaintiffs in New Yorkers for Students’ Educational Rights (“NYSER”) to proceed with their litigation against the state, Governor Andrew Cuomo and other state defendants.

The NYSER litigation, filed earlier this year, alleges that in 2007, following the Court of Appeals’ final decision in CFE, the governor and the state legislature enacted a major reform act that committed the state to increasing funding for students in the New York City Public Schools by approximately $5 billion per year, and for students in the rest of the state by approximately $4 billion per year, all to be phased in over a four-year period. Since 2009, however, the state has reneged on these commitments. Although the state has never repealed the 2007 legislation, it has failed to fund schools in accordance with its foundation formula. Despite some increases in state funding for education over the past few years, the state is still $5.6 billion short of the amounts owed under that formula, according to the plaintiffs. The plaintiffs are seeking immediate financial relief, as well as the adoption of a series of mechanisms that will ensure adequate and equitable funding for all students on a sustained, long-term basis.

Referring specifically to some of the devices and mechanisms the state has used to reduce its education appropriations, Justice Mendez held that “the ‘gap elimination adjustment’…. the cap on state-aid increases,  the supermajority requirements concerning increases in local property tax levies,” together with penalty provisions imposed on New York City students last year in connection with the implementation of the new teacher evaluation system, all “could potentially be found irrational, arbitrary or capricious and capable of preventing a sound basic education.”

Justice Mendez also rejected the state’s claim that individual plaintiffs from all of the approximately 700 school districts in the state would need to participate for plaintiffs to proceed with this lawsuit and that NYSER as an organization lacked standing to sue. He held that “This Court will not ‘close the courthouse doors’ on the individual plaintiffs’ potentially viable constitutional claims affecting schoolchildren in New York State,” and that NYSER, whose “stated mission is to ensure that all students in the State of New York receive the opportunity for a sound basic education,” also has standing.

The NYSER plaintiffs include 16 parents from New York City and from urban, suburban and rural districts throughout the state, and NYSER, an organization whose members include the state school boards’ association, the state superintendents’ association, the state-wide PTA, 11 of New York City’s Community Education Councils, and a number of parent groups and advocacy groups around the state.