On September 8th, 2016, an intermediate appeals court, the Appellate Division, First Department, affirmed the trial court’s denial of the state’s motion to dismiss  plaintiffs’ claims in New Yorkers for Students’ Educational Rights (NYSER) v. State of New York. The NYSER plaintiffs are challenging the state’s failure to fully fund the state-wide foundation aid formula that it adopted in 2007. That formula was developed in the wake of the Court of Appeals’ holding in CFE v. State that the then current system was denying one million students in the New York public schools their constitutional right to the opportunity for a sound basic education. Plaintiffs claim that after the 2008 recession, the state abandoned its commitment to fully phase in the new system and, in fact, cut education funding substantially; although there have been some funding increases in recent years, the state is still almost $4 billion short in providing the amounts needed, according to the state’s own calculations, to provide all students throughout the state the opportunity for a sound basic education.

Holding that the NYSER complaint has “adequately alleged systematic deficiencies” in the services currently being provided to many students, the Court agreed that the case should proceed. Although the CFE litigation had been brought solely on behalf of students in New York City, the current NYSER case explicitly seeks statewide relief. Defendants argued that to prevail, plaintiffs must prove that there are currently educational deficiencies in every one of the state’s 690 school districts. The Court rejected that position, holding that proof of systemic deficiencies in at least one or two large districts would be sufficient, since the state’s educational funding system is “an interconnected web in which a complex formula is used to calculate funding for all districts.”

Recognizing that almost a decade has now passed since the state undertook a comprehensive cost analysis and adopted the foundation formula, plaintiffs are also asking the Court to require the state to take stock of current conditions and ensure that on an on-going, basis, all schools have sufficient resources to meet students’ constitutional needs. The Appellate Division upheld plaintiffs’ right to challenge the adequacy of the State’s education funding accountability mechanisms. In an interesting contrast to the approach taken by Judge Moukawsher in the Connecticut adequacy decision decided a day earlier, however,  the New York Court held that  plaintiffs could not include in their accountability claims the proposition that the state has an obligation to provide school districts adequate “information and guidance” on cost-effectiveness and other educational policy issues.

The trial court had consolidated into the NYSER litigation claims made in a related case, Aristy-Farer v. State of New York, that challenged, on behalf of the affected students, the constitutionality of a $290 million penalty that the State had imposed on the New York City public schools in 2014 because city and its employee unions did not meet a state imposed deadline for submitting an agreed new personnel evaluation system. That issue is still very much alive at the present time since the state is now requiring school districts and their unions to agree on an updated evaluation system by Dec.1, 2016 or face similar penalties. The Appellate Court agreed with the trial court that these claims raised valid constitutional issues. It also affirmed, over the state’s objection, the consolidation of these two actions.

The plaintiffs in NYSER v. State of New York  are 25 parents from New York City and from urban, suburban and rural districts throughout the state, and  NYSER, an organization whose members include the New York State School Boards Association, the New York State Council of School Superintendents, the New York State PTA, the New York State Association of School Business Officials, the Statewide School Finance Consortium, the Rural Schools Association, 11 of New York City’s Community Education Councils, and a number of parent groups and advocacy groups around the state. Counsel for plaintiffs are: Michael A. Rebell, Esq. and Morgan Lewis & Bockius LLP, Douglas T. Schwarz, John A. Vasallo and Brendan T.Chestnut, of counsel.