NY Regents Cut Supports for Students Struggling Academically

On September 16, the New York State Board of Regents voted yet again to grant school districts permission to deny extra academic supports to some students who score below proficiency on state tests and who, under state regulations, would be entitled to more help from their teachers or other qualified personnel.*

Read our brand-new, user-friendly Know Your Educational Rights handout on students’ right to extra support for students struggling academically: http://bit.ly/1R9hrqx.

Of the 17 Regents, only three–Betty Rosa (Bronx), Judith Johnson (Dutchess, Orange, Putnam, Rockland, and Westchester Counties), and Catherine Collins (Buffalo)–stood up for students’ rights and voted against watering down essential supports for children in need of extra help.

Instead of giving school districts permission to cut supports for students in need, the Regents and New York State Education Department and should insist that academic intervention services be strengthened and expanded. And the state must take the lead in ensuring that districts have the funding they need to pay for effective academic and support services.

Act Now, Before It’s Too Late

During a 45-day public comment period required by law, the Regents must accept input from New Yorkers on their September 16 decision. If you raise your voice now, you may persuade more of them to reconsider and thereby ensure thousands of students the extra help they need.

Tell the Regents to vote against eliminating the right to academic intervention services for any student below proficiency according to state learning standards.

How to Submit Your Comments to the Board of Regents

  1. Email RegentsOffice@nysed.gov as well as the Regent representing your district: www.regents.nysed.gov/members;
  2. Call 518-474-5889 and leave a detailed message; and/or
  3. Send a letter to:
    New York State Education Department
    89 Washington Avenue
    Board of Regents, Room 110 EB
    Albany, New York 12234
* Children who score 1s and 2s on state tests, fail one or more Regents exams, or otherwise are deemed at risk of not meeting state standards have a right to extra supports to help them progress at grade level and graduate on time. The technical term for those additional supports is “academic intervention services” (AIS), which may include tutoring, small-group instruction, or even an extra class, and/or counseling and study-skills help. Such extra help is also part of the “expanded platform of services” that the court in the Campaign for Fiscal Equity (CFE) lawsuit said was necessary to provide “at risk” students a meaningful opportunity for a “sound basic education.”

Regents to Vote on Proposal to Reduce Extra Support for Students Struggling Academically

On September 16, 2015, the New York State Board of Regents will vote on a state education department proposal to extend for another year school districts’ “flexibility” to deny extra academic supports to some students who scored below proficiency on state tests and normally would be entitled to extra help. This infringes on the right of all students at risk of low academic achievement to additional services and supports to ensure they can meet state standards.

New York students who score below proficiency on state tests (i.e., children who get 1s and 2s)–as well as students who are at risk of not meeting such standards–have a right, according to state education regulations, to extra supports to ensure they succeed. All of these students are entitled to “academic intervention services” (AIS), which may include tutoring, small-group instruction, or even an extra class, and/or counseling and study-skills help.

For the last two years, since the adoption of the Common Core-aligned assessments, the Regents have voted to limit the number of students entitled to extra support.
This extra support is vital to help many children progress at grade level and graduate on time. Such extra help is also part of the “expanded platform of services” that the court in the Campaign for Fiscal Equity (CFE) litigation said was necessary to provide “at risk” students a meaningful opportunity for a “sound basic education.”

Resources for sufficient, effective academic intervention services are already in short supply. A Campaign for Educational Equity study  conducted during the 2011-12 school year uncovered widespread deficiencies in schools’ ability to provide these supports in high-need districts around the state (see pages 38-40). The state learning standards that year were lower, and, yet, even then, in every single school in our study, students struggling academically were being shortchanged on extra support.

Instead of giving school districts permission to provide needed extra help to fewer students, the NYSED and Regents should insist that currently inadequate efforts be improved and expanded, and the state should take the lead in ensuring that districts have the funding they need to pay for effective academic and and support services.

If you believe that New York students who need extra help in order to meet state standards should receive it, there is no time to waste: email RegentsOffice@nysed.gov or call 518-474-5889 and encourage the Regents to vote against the proposed amendment to AIS requirements.

Parents and Students Unite at CEE’s Know Your Educational Rights End-of-Year Celebration


A few of our amazing 2014-2015 Know Your Educational Rights partners: Community School District 6 parents and students from Epic Theatre Ensemble’s “Epic NEXT” program!

On Monday, June 15, the Campaign for Educational Equity recognized and celebrated with a group of outstanding partners—teams of parents and high school students who contributed to the success of this year’s “Know Your Educational Rights” (KYER) program, a groundbreaking public-engagement initiative from CEE to equip key education stakeholders with a thorough, research-based understanding of students’ rights under New York State law.

Our 2014-15 partnerships included a workshop series with Community Education Council 6, which represents schools in West Harlem, Washington Heights, and Inwood; our Educational Equity ACTion! project with Epic Theatre Ensemble; and extensive consultations with several schools in Community School Districts 5 and 6.

During the celebration, students and parents alike spoke about how participating in our KYER projects had affected their lives and helped them become more effective advocates for themselves, their families, and their respective communities.

The Epic students performed excerpts from the monologues they wrote based on three sources of information: the workshops we conducted with them last summer; interviews with a range of education stakeholders, including parents, teachers, administrators, and advocates; and our parent- and youth-friendly Know Your Educational Rights handout series.

Click here to view photos from the celebration!

Click here to make a donation to sustain and expand our efforts to equip New York students and families with high-quality information about their educational rights!

CEE Proposes New Financing System to Expand Use of School-Based Health Centers

Earlier today, CEE released a new report, Supporting Learning through Better Health: A Strategy to Ensure Adequate and Stable Funding for School-Based Health Centers in New York State, which outlines a financing strategy that would promote the expansion of school-based health centers (SBHCs) throughout New York.

SBHCs provide valuable medical, mental health, and other reproductive services within the school building where students can readily access them. Studies have shown that these centers can substantially improve both health and academic outcomes, especially for students from low-income families and communities. New York has, until recently, been more supportive of SBHCs than most states. Still, only 5% of New York schools currently have one.

This low percentage of existing SBHCs is largely due to the financial risk that schools and health agencies take in running them, as a result of current financing schemes. Most students in the schools that can benefit the most from having a SBHC are eligible for Medicaid and Child Health Plus funding, but federal and state regulations are written for hospitals, not schools, and this makes it difficult for SBHCs to obtain reimbursement for many of the services they provide.

Making things worse, Governor Cuomo and the New York State Department of Health are currently pressing to move SBHCs into the state’s Medicaid managed care system, from which they had previously been exempt. This transition would dramatically reduce revenues for SBHCs, which would likely lead to service cutbacks, and, ultimately, the demise of many SBHCs, most severely affecting underserved low-income communities.

The CEE report advances a financing strategy that would fill the gap between the insufficient revenues that SBHCs now receive and their actual operating costs. The Campaign proposes that the state guarantee each SBHC a reasonable annual per-student rate that covers the actual cost of efficiently providing necessary and required health services. The state would then be reimbursed by Medicaid and private insurers for most of these costs.

Our approach provides adequate, stable funding for existing SBHCs through a mechanism that involves no additional per-student costs to the state. In fact, by maximizing federal reimbursements, this system would result in a reduction in the percentage of SBHC costs that the state is now paying. The assurance of adequate and stable funding should lead to a strong growth in the number of SBHCs, resulting in improved delivery of health services and greater school success for students from low-income households.

In response to the report, Dr. David Appel, Director of the School Health Program, Albert Einstein School of Medicine, Montefiore Hospital, said, “The Campaign for Educational Equity is proposing an insightful and feasible plan that could dramatically change the nature of funding for School Based Health Centers — and thereby improve the health and the education of hundreds of thousands of New York City’s school children.”

Charles E. Basch, Richard March Hoe Professor of Health and Education at Teachers College, Columbia University, also stated: “Providing a stable funding system for SBHCs that have a strategic focus on eliminating health barriers to learning can substantially help reduce  health and educational disparities among America’s most vulnerable youth.”


Michael A. Rebell, executive director of the Campaign for Educational Equity, was the prime author of the report, with editorial assistance from Jessica R. Wolff, CEE’s policy director and research assistance from Linda Moon. Funding to support this research was provided by the James and Judith K. Dimon Foundation. The report does not necessarily reflect the views of Teachers College, its trustees, administrators, or other faculty.

NYSER Plaintiffs File Summary Judgment Motion

In 2014, New Yorkers for Students’ Educational Rights (NYSER) filed a lawsuit on the behalf of New York State’s public school students charging that the state is neglecting its constitutional duty to ensure that every student receives a “sound basic education.” In NYSER v. State of New York, plaintiffs argue the state has failed to implement the school-funding reforms that it committed to adopt in response to the Campaign for Fiscal Equity (CFE) court decisions.

To move the case ahead more quickly, earlier last week, NYSER plaintiffs filed a “motion for summary judgment” that asks State Supreme Court Justice Manuel J. Mendez to bypass a lengthy trial and declare, based on the state’s indisputable actions and inactions in recent years, that the state has violated the Court of Appeals’ CFE orders and has failed to achieve constitutional compliance.

Plaintiffs argue that, despite recent increases, there are still significant gaps in core foundation funding for education. According to the plaintiffs, foundation aid for 2015-16 will still be almost $5 billion less than what the state determined was necessary to ensure that every school can provide all of its students with at least a sound basic education.

Plaintiffs in the case include 25 parents from around the state and NYSER, an organization whose members include 11 of New York City’s community education councils, the New York State PTA, New York State School Boards Association, the New York State Council of School Superintendents, the New York State Association of School Business Officials, the Statewide School Finance Consortium, the Rural Schools Association, and a number of other parent and advocacy groups. 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.

The recent motion asks Justice Mendez to give the state a deadline of the 2016-17 school year to remedy constitutional violations either by providing full funding in accordance with the foundation funding formula set forth in the state statutes or by creating an alternative state education finance system that meets constitutional requirements.

Read more about this new development and the NYSER v. State of New York case at www.NYSER.org.

State Aid for Education: A Constitutional Analysis of the Enacted 2015-2016 New York State Budget

The 2015-16 New York State budget has now been enacted by the legislature and signed into law by the governor. This budget increases state aid to education by approximately $1.3 billion, which will provide an average 6% increase in aid for the state’s school districts. It also includes $75 million over two years for new grants for districts with struggling schools and provides small amounts of additional competitive grant funding of prekindergarten, extended learning, community schools, master teachers, and early college high school programs that the governor had initiated in the past based on the recommendations of his education reform commission.

This increase is well below the $2 billion in additional state aid that the Regents had recommended and is not sufficient to remedy the state’s ongoing violation of the requirements of Article XI, §1 of the state constitution and fulfill the clear directives of the New York Court of Appeals, the state’s highest court, in the Campaign for Fiscal Equity (CFE) litigation. The state’s on-going noncompliance means that the fundamental educational resource deficiencies created by years of budget cuts, the pressures of additional unfunded state mandates, the escalation of health, pension, and other costs, and the depletion of reserve funds in many districts will continue to undermine the educational opportunities of vast numbers of the state’s three million public school students. The state’s ongoing underfunding of its constitutional requirement disproportionately affects students from low-income households and communities and students of color.[1]

Among the egregious violations of constitutional requirements that the 2015-16 state budget perpetuates are the following: It continues to defer full foundation funding for the costs of a sound basic education; it reverts to the notorious “shares agreement” for funding New York City schools; it continues the unconstitutional gap elimination adjustment; it revives the teacher evaluation penalty provision that threatens essential school aid; and it fails to provide appropriate funding for pre-K.

Continued Deferral of Full Foundation Funding

In CFE v. State of New York, the Court of Appeals directed the state to create a system to provide full funding for the “actual cost” of ensuring all students the opportunity for a sound basic education by the 2010-11 school year. Five years past this deadline, the state continues to fail to comply with this requirement. In 2007, the legislature adopted a foundation funding formula that was based on the amount that the state education department had calculated to be the actual cost of a sound basic education. Although the state has never denied that the validity of this formula for calculating the amounts that are needed to provide the constitutionally required opportunity for a sound basic education, each year since 2009-10, the state has deferred the date for full implementation of the foundation funding amounts.

For 2015-16, even with the $1.3 billion in additional funding that the state appropriated, total foundation funding will still be more than $4.7 billion below the amount the state legislature itself had determined to be necessary to provide all students the opportunity for a sound basic education.

Reversion to the Notorious “Shares Agreement”

In its CFE decisions, the Court of Appeals repeatedly specified that the state’s funding system must “align funding with need,” that resources must be “calibrated to student need,” and that the amount of state aid provided must “bear a perceptible relation to the needs of City students.” [2] Instead of adhering to the foundation formula, the state has reverted to the infamous “three men in the room” decision-making process in which the governor and the two legislative leaders determine how much funding each school district will receive behind closed doors and on the basis of political deals, rather than student need.

Evidence submitted in the CFE trial showed that, for almost all of the decade preceding the trial, New York City had received precisely 38.86% of the annual increase in state aid under a political “shares agreement.” Supreme Court Justice Leland DeGrasse denounced this arrangement, stating that it reflected “an array of manipulations” that did not relate to actual student needs.[3] Significantly, for 2015-16, New York City’s share of the state aid increase is the same 38.86% or the “fixed percentage share” that the court held to be blatantly unconstitutional.  

Continuation of the Gap Elimination Adjustment

In 2010-11, in the wake of the recession, the state created a device it called the “gap elimination adjustment” (GEA) to provide a rhetorical justification for its decision to reduce educational spending below constitutionally required amounts. The GEA is a legislated artifice that allows the state simply to ignore “the gap” between the money the state constitutionally must provide pursuant to the Court of Appeals’ CFE directives, and the money that the state is willing to allocate to education from its total annual budget.

Although the recession has long since passed and the economy has largely recovered, the state has continued to include the GEA in its budget calculations. The amount of the GEA has been reduced from $1.036 billion in 2014-15 to $434 million for 2015-16, but the maintenance of this mechanism remains an affront to the constitution. Moreover, the convoluted “gap elimination reduction” formulas that the state has devised lack transparency, allowing for the political manipulation of state aid and neglect of actual student need.

Revival of the “Penalty Provision”

Two years ago, the state revoked $290 million in state aid that had been appropriated for the benefit of students in the New York City public schools and analogous amounts from several upstate districts because these districts had not negotiated a new annual professional performance review (APPR) system with their teacher and principals unions by a date specified by the governor. The commissioner of education subsequently imposed an agreement on the city and its unions, but the $290 million in penalty funds were not reinstated. A constitutional challenge to this penalty, and a claim for reinstatement of these funds, is currently being considered by the state supreme court.[4]

At Governor Cuomo’s urging, the legislature has now adopted a similar penalty provision for 2015-16 and all of the years thereafter. Specifically, for 2015-16, the state will withhold the entire increase in general support aid for the full school year from any school district that fails by November 15, 2015, to reach agreement with the collective bargaining agents for its teachers and principals and to obtain approval from the commissioner of education on a plan for a revised APPR system for its teachers and principals.[5] This new statute further provides that such funding shall be withheld in each subsequent year in which a school district has not submitted documentation by September 1st demonstrating that it has fully implemented the standards and procedures for conducting annual teacher and principal evaluations.

This penalty provision, like the one adopted in 2012, was enacted without giving any consideration to the potential impact on students’ opportunity for a sound basic education. Whatever may be the merits of the revisions to APPR system that the state adopted this year and that require these new school-district/union agreements, it is unconstitutional to withhold from any students the modest increase the legislature had appropriated to move toward meeting their educational needs for the coming year because some school district and union officials prove unable to conclude a new agreement by the arbitrary deadline the governor established.

Failure to Fund Prekindergarten Services Appropriately

Last year, the governor and the legislature committed to provide universal high-quality full-day pre-K services to all four year olds in New York State within a five-year period. Pre-K is one of the specific services that the CFE court deemed to be constitutionally essential, at least for high-need students. The governor proclaimed that the state would provide school districts sufficient funds for this initiative as soon as school districts are ready.[6] However, for 2015-16, the second year of the proposed five-year implementation period, the legislature took no action to keep that pledge.

For the 2014-15 school year, the legislature appropriated $300 million for New York City and $40 million for all other school districts in the state, but specified that the funds would be provided through a competitive grant process. Funding would not, in fact, be provided to all districts that were ready to mount quality pre-K programs. Furthermore, school districts, already financially strapped by the state’s failure to provide full foundation funding, were required to pay all the necessary expenses up front and wait to be reimbursed for most of these expenses until the next fiscal year. The state also put a $7,000-$10,000 per-child cap on the amount of reimbursement districts could receive, regardless of the actual cost of providing a high-quality program.[7]

Although for 2015-16 the state increased funding for the competitive grant program by $15 million (some of which would be allocated to initiate programs for three year olds), none of the major flaws in pre-K financing were addressed. For the second year in a row, therefore, many districts throughout the state will be unable to initiate or expand pre-K programs, and New York City will probably need to expend additional local funds in order to expand and ensure high quality in its pre-K programs.

Necessary State Action for Achieving Constitutional Compliance

The Campaign for Educational Equity will continue to call upon the governor, the legislature, and the Regents to make significant advances toward constitutional compliance in each of these areas over the coming months, and we will make concrete policy recommendations to help them to do so.

All of these constitutional deficiencies are also being challenged by the plaintiffs in a case currently pending before the New York State Supreme Court, New Yorkers for Students’ Educational Rights (NYSER) v. State of New York.[8] In that case, the plaintiffs are claiming that the governor, the legislature, and the Regents must take the following actions to achieve constitutional compliance:

  • Identify the essential resources, services, and supports that must be available to all students to comply with the constitution and to meet statutory and regulatory requirements;
  • Provide schools and school districts with clear guidance and recommended methods for maximizing the efficiency and cost effectiveness of their operations while safeguarding constitutional educational services;
  • Develop and implement an up-to-date methodology to determine the actual costs of providing all students with the essential resources for a sound basic education in a cost-effective manner that properly weighs student needs and concentration-of-poverty factors;
  • Revise the state funding formulas to ensure that all schools receive sufficient resources; and
  • Create state and local accountability mechanisms for sound basic education and ensure enforcement by the state education department and other entities and the means and capacity to carry out those responsibilities.


[1] The impact of years of constitutional noncompliance on students in high-need schools throughout the state has been documented in two reports issued by the Campaign for Educational Equity: Essential Resources: The Constitutional Requirements for Providing All Students in New York State the Opportunity for a Sound Basic Education (Dec. 2012) and Deficient Resources: An Analysis of the Availability of Basic Educational Resources in High-Needs Schools in Eight New York State School Districts (Dec. 2012). Both reports are available at www.equitycampaign.org.

[2] CFE II, 100 N.Y. 2d. at 929 and 930; CFE III, 8 N.Y. 3d. at 21 (2006).

[3] See CFE v. State of New York 187 Misc. 2d. 1, 89 (S. Ct., N.Y. Co., 2001).

[4] See Aristy-Farer et al. v. State of New York et al., Index No. 100274/13), Decision on Motion to Dismiss (S. Ct. N.Y. Co., Mendez, J., April 7, 2014). This case has now been consolidated with New Yorkers for Students’ Educational Rights v. State of New York, discussed below.

[5] Educ. Law ¶312-d.11

[6] “As quickly as cities bring it on line, we will fund it. Whatever they need, we have the funding ready,” Statement of Gov. Andrew Cuomo, Brian Lehrer Show, WNYC, March 10, 2014.

[7] For a detailed discussion of these issues, see Campaign for Educational Equity and Center for Children’s Initiatives, Securing the Future of New York’s Children: Taking the Next Steps Toward Truly Universal Pre-K (2014), available at www.equitycampaign.org.

[8] The litigation papers and further information about this case are available at http://www.nyser.org.

Views expressed by the Campaign for Educational Equity or its staff do not necessarily reflect the views of Teachers College.

CEE Unveils “Know Your Rights: Curriculum and Course Offerings”

Under New York State law, all students have a right to a suitable, up-to-date curriculum and sufficient course offerings to ensure them a meaningful opportunity to meet the New York State Learning Standards.

To help students, parents, educators, school officials, policymakers, and advocates understand exactly what this means, CEE is pleased to announce the release of Know Your Rights: Curriculum and Course Offerings. This user-friendly brief describes the rights of all students in this essential resource area and the specific services and supports that all New York schools must be able to provide for their students.

Our goal with this and the other handouts in our Know Your Educational Rights series is to empower parents, students, teachers, and other stakeholders to make sure that students actually receive the services and supports to which they are entitled. Please help distribute these handouts widely by sharing this link on Facebook and Twitter, and printing copies to hand out at community meetings.