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

[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

[8] The litigation papers and further information about this case are available at

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.

Educational Equity ACTion! Student Performers Steal the Show at Feb. 28th New York State PTA Conference!

Last summer, our team launched “Educational Equity ACTion!”—an exciting partnership between the Campaign for Educational Equity and Epic Theatre Ensemble’s Epic NEXT program, which pairs professional actors with selected students from NYC high schools year round. Guided by their teaching-artist mentors, Epic NEXT students write and perform original performance pieces based on important social issues.

In July, students participated in a series of CEE-facilitated “Know Your Educational Rights” workshops—featuring parent- and youth-friendly handouts —to introduce them to their educational rights under NY state law. Over the past few months, the students interviewed various education stakeholders to learn more about these issues, and they used this material to write their scripts.

This past weekend, those brilliant young artists brought Broadway to Albany, performing their pieces, for the first time ever, at the annual New York State PTA Legislation/Education Conference!

In front of dozens of PTA presidents from school districts throughout the state, the students delivered a powerful set of original monologues, skillfully blending heart-wrenching, personal stories—from the perspectives of students, parents, and educators—with detailed information about the impact of educational-rights violations on the futures of NY children in under-resourced schools.

How did New York’s parent leaders respond to these budding education activists? A standing ovation, tons of encouragement, and invitations to perform at several district-based meetings and conferences! One parent who is also a classroom teacher told the students that their stories of resistance to crushing educational inequities had inspired her to postpone an early retirement and continue striving to ensure her students the level of education they need and deserve. Following a rich Q & A session, almost all of the audience members rushed the stage to learn more from and about these talented young people, all of whom attend schools located at the Evander Childs Campus in the Bronx.

CEE is extremely proud to work with Epic and such talented young artists—New York’s bright stars—to expand youth participation and youth voice in advocating for true educational equity.

To help sustain and expand our efforts to equip New York students and families with high-quality information about their educational rights, please click here.

Stay tuned for videos from the performance!

Governor Cuomo’s Education Budget Proposals Ignore Children’s Needs and Violate the Constitution

In the budget message he delivered last week, Governor Andrew Cuomo proposed to increase state aid to education by $1.1 billion for 2015-16-but only if the legislature adopts his highly controversial package of education “reforms.” His reform agenda centers on tax credits for contributions to private schools, changes to the charter-school cap, and a significant revision of the teacher-evaluation law. If these changes are not adopted, the governor will ask the legislature to increase funding by only $377 million, an amount that will barely cover legally required increases in “expense-based aids,” such as transportation and building aid, that mostly go to retroactive payments for services delivered and facilities built in the past. In essence, if the governor does not get his desired education-policy changes, New York State’s students will receive virtually no increase in state aid and, given inflation and other mandatory cost increases, the level of educational services, which in many school districts is already highly inadequate,[1] will take an additional hit.

Tying State School Aid to Policy Change Violates Students’ Rights

Making state funding for a sound basic education contingent on specific education policies, good or bad, infringes New York students’ educational rights. The New York Court of Appeals held in Campaign for Fiscal Equity (CFE) v. State of New York [2] that state aid for education must be calibrated to student need and must be based on “the actual cost” of providing all students the opportunity for a sound basic education. If $1.1 billion is the budget increase that the governor has decided is needed to provide a sound basic education, then a threat to provide less than that amount is in direct contravention of Article XI § 1 of the state constitution and of the governor’s oath to uphold the constitution.

School-Aid Amount Is Inadequate and Not Based on Student Need

Even more problematic is that Governor Cuomo has ignored the Court of Appeals’ expectation that the state determine the actual cost of a sound basic education through an objective analysis of students’ needs. The figures the governor has put forward are not grounded in any such analysis. Instead, they come from a purely budgetary and political calculation that ignores existing resource inadequacies and the additional costs of implementing the new requirements of such policies as Common Core standards, Response to Intervention (RTI), the Annual Professional Performance Review (APPR), new pathways to high school graduation, and full-day universal prekindergarten.

The New York State Board of Regents recently recommended an increase in state aid of approximately $2 billion for 2015-16. This recommendation was based on a careful consideration of student needs and of the cost of some of the major new programs listed above, as well increased support for English language learners, coverage for enrollment increases, and other educational needs. Even with a $2 billion increase, the Regents acknowledge, funding would not reach a constitutionally compliant level. The foundation-aid formula that the legislature adopted in 2007 in response to the CFE litigation, and based on an extensive cost study undertaken by the state education department, calls for an increase in state aid of approximately $5.6 billion. This is the amount needed to provide students access to a sufficient number of qualified teachers; reasonable class sizes; up-to-date textbooks and technology; services and supports for students who are academically below grade level, students with disabilities, and English language learners; and all of the other elements of a sound basic education as defined by the courts and as calculated by the state itself in accordance with the statutory foundation-aid formula.

Tax Credit Plan Is Unconstitutional

The governor’s neglect of the students’ educational rights under the state constitution does not end with the inadequate funding increase. One of the so-called “reforms” to which the governor would hold state aid hostage is a plan that would provide tax credits of 75% of amounts up to $1 million for donations to “school improvement organizations, local education funds and educational scholarship organizations.” At a time when our public schools are severely underfunded, it is simply shameful for the governor to call for siphoning public tax money off to private schools and other entities favored by wealthy individuals. Even though some of these funds can also be given to public schools, the notion that individual donors can choose the schools that will receive extra money, instead of determining, through proper public procedures, where available tax revenues should best be directed, also violates constitutional precepts.

Universal Full-Day Pre-K Has Been Shortchanged

Last year, prodded by Mayor Bill de Blasio’s insistence on full-day prekindergarten for all four year olds in New York City, the governor initiated a plan to provide full-day pre-K to all four year olds in the state within five years. He committed $1.5 billion to this project over the five-year period, including a $340 million allocation in the current year’s budget, $300 million of which was earmarked for New York City. To expand the program and ensure its quality in its second year and beyond, careful attention to its programmatic needs and planning to ensure sustained and stable financing are essential.[3] For 2015-16, the state’s plans should include an increase of at least $150 million for districts outside New York City to expand access to full-day pre-K for 15,000 more children; an additional $100 million to ensure high-quality pre-K for students in New York City; a shift to a periodic, predictable schedule for cost reimbursements to school districts; and a requirement that all community programs be under one manageable supervisory umbrella. The governor’s proposal ignores these needs and maintains funding for four year olds at last year’s level (plus a $25 million federal grant). To his credit, the governor does propose a $25 million appropriation for new full-day programs for three year olds.

There are other positive proposals in the governor’s education package, like creating a teacher-residency program and supporting expansion of the master teacher and P-Tech programs. However, the governor’s budget allocates relatively small amounts ($39 million) to these worthwhile initiatives.

A broad-based group of parents and educational organizations from around the state is challenging the governor’s unconstitutional approach to school funding in New Yorkers for Students’ Educational Rights (NYSER) v. State of New York [4], a lawsuit filed in February 2014. Since it will take some time for the Court of Appeals to issue a final ruling in this case, the members of the state legislature should live up to their constitutional obligations, reject the governor’s illegal and inadequate approach to funding, and ensure that the state’s education-finance system provides an opportunity for a sound basic education to all students.
[1] For a detailed discussion of the extent to which students in high-need schools throughout the state are being deprived of constitutionally mandated educational services, see Michael A. Rebell, Jessica R. Wolff, and Joseph R. Rogers, Jr., Deficient Resources: An Analysis of the Availability of Basic Educational Resources in High Needs Schools in Eight New York State School Districts (Campaign for Educational Equity, 2012.)

[2] 100 N.Y. 2d 893 (2003).

[3] The Campaign for Educational Equity and the Center for Children’s Initiatives recently issued a report that specifies the programmatic improvements and funding increases that are needed to achieve high-quality pre-kindergarten for all three and four year olds in the State of New York over an eight-year period.

[4] For information regarding the NYSER litigation, see


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

New York Times Challenges Governor Cuomo to Face Educational Reality in State of State

Yesterday, the New York Times, which two years ago published an article about our research revealing the effects of the state’s systemic failure to ensure that all students can access at least a basic set of educational opportunities, called on Governor Cuomo to address the “inequality in school funding that prevents many poor districts from lifting their children up to state standards” (access the full editorial, “The Central Crisis in New York Education” here).

The major gaps in educational opportunities came as no surprise to many parents, students, and educators for whom they are an everyday reality with real-life consequences, but many people were shocked by the depth and range of the inadequacies. Some schools in New York City and other underfunded districts around the state were unable to provide students a complete basic curriculum, much less additional instructional support for students struggling to meet state standards; teachers and parents regularly spent hundreds of dollars on basic instructional materials because schools couldn’t; and students with disabilities and English language learners were taught in inappropriate settings or received inadequate support, simply for lack of space and personnel. And those are just a few examples.

As the Times reminds readers, the State Board of Regents, which governs education policy in New York, last month strongly advised the governor that the additional accountability reforms he wants to push through would have minimal impact “unless they were paired with new investments along the lines of the $2 billion in extra spending that the regents had recommended earlier . . . to address the ‘deeply disturbing inequalities in resources’ that exist between poor and wealthy districts.”

To put that proposed one-time $2 billion increase in context, in 2007 the state legislature and then-Governor Spitzer promised an additional $7 billion a year in order to ensure all children at least the basics, and a lawsuit filed in February 2014 by New Yorkers for Students’ Educational Rights asserts that the state is still $5.6 billion below that annual commitment.

Over the past few years, the Campaign for Educational Equity team has advanced this issue through extensive research and engagement activities like community-based, educational-rights workshops, teen-produced rights-focused performances, user-friendly handouts to help families and the larger public understand the educational opportunities required by state law. We are currently spearheading a statewide task force that draws upon the expertise of a range of educators and other education stakeholders and experts. The group’s mission is to develop a coherent set of proposals for updating New York’s education regulations and funding policies in a way that truly fosters excellence and equity for all students. Everyone at the table understands that policy change without adequate resources for meeting student’s basic educational needs may be good politics but is bad governance and bad for children.

Will the governor get it right in his “State of the State” address on January 21st? Does he understand that millions of New York children struggle to meet state standards less because the policies need to be tweaked but because the state continues to ignore its obligation to supply basic educational resources to all students no matter their race, class, or neighborhood?

We’ll see, soon enough.

NY State Supreme Court Greenlights Education-Rights Lawsuit Against State Leaders

Governor Cuomo, the New York State Legislature, and the State Education Department have failed to assess and minimize the harmful impact of budget cuts on the educational rights of New York children. In light of the state’s failure to fulfill its constitutional responsibilities, the Campaign for Educational Equity stepped forward to address those information gaps and join other New Yorkers in advocating for the opportunities we all know our children need and deserve.

Over the past few years, CEE’s research findings and policy proposals have been used by policymakers, parents, activists, educators, advocacy groups, and other stakeholders throughout the state. One organization that has utilized our work is New Yorkers for Students’ Educational Rights (NYSER), a coalition of families and major education organizations that sued the State of New York in February on behalf of students who have been denied an adequate education.

Earlier this week, the New York State Supreme Court rejected a motion by the state’s attorneys to dismiss the NYSER litigation, which means the case is likely headed to trial, although there may be some further delays if the state appeals this ruling.

Read more about this important new development in the excerpt below from a November 18th NYSER press release, and please stay tuned for more updates about this and other efforts to defend and advance New York students’ educational rights.


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

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.”

The court also held that “The claims asserted by plaintiffs are not tenuous, there is a potential risk of harm to public school students and to school districts derived from financial distress.”

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 state now has 20 days to file an answer to the complaint, after which preparations for trial can commence.  

To read the full press release, click here.

Coalition Calls for Co-Location Moratorium — Letter to Mayor de Blasio and Chancellor Fariña

November 13, 2014

Mayor Bill de Blasio
City Hall
New York, NY 10007

Chancellor Carmen Fariña
New York City Department of Education
Tweed Courthouse
52 Chambers Street,
New York, NY 10007

Dear Mayor de Blasio and Chancellor Fariña:

The recently released report of the School Space Working Group contains many important recommendations; most critical perhaps are those emphasizing ensuring adequate space in all schools to provide students with disabilities all of the resources, services, and supports to which they are entitled. The group’s recommendations do not, the report acknowledges, address other critical issues of the impact of some co-locations on students’ basic educational rights, issues that disparately affect students with extra educational needs and challenges.

For this reason, we write today to urge you to place a moratorium on proposing any new co-locations until the student rights’ violations in existing co-located schools have been substantially remedied. Many students in New York City are currently constrained by space limitations from receiving the resources necessary for a sound basic education, including smaller classes, the full complement of cluster, specialty, and resource rooms necessary for the full Regents-required curriculum and required academic intervention services, and dedicated spaces for English language learners and students with disabilities to receive their mandated services. Students must also have access to the cafeteria, the library, and the gymnasium at appropriate times and for at least the state-mandated minimum periods.

This moratorium is not intended to interfere with placing District 75 programs in schools as needed in order to improve inclusion opportunities for students with disabilities and ensure that their needs are addressed. We also support the planned co-location of a D75 school in a newly constructed building.  However, even such co-locations must in the future be implemented with true community engagement and a comprehensive plan for ensuring that D75 and other students receive at least the full complement of basic educational resources to which they are entitled.

Through site visits and interviews with dozens of staff in a sample of high-need schools, the Campaign for Educational Equity (CEE) has documented how, in some schools, co-locations exacerbated resource constraints and deprived students of critical programs and services, and that some principals have had to spend 20-80% of their professional time negotiating over access to space and addressing building-wide safety matters, depriving their educators and students of valuable instructional leadership and support. The CEE study further revealed how some co-locations have undermined NYC students’ right to a sound basic education by subjecting students to inadequate facilities, oversized classes, inadequate course offerings, and insufficient support that in many cases violate state statutory, regulatory, and constitutional requirements.

Other reports from Class Size Matters and the City Comptroller have delineated the worsening overcrowding crisis in our schools. Co-locations, whether in the case of district public schools or charter schools, have exacerbated overcrowding by subtracting classrooms in the process of replicating administrative and specialty rooms and restricting access to shared spaces. In addition, the current building-utilization formula is widely recognized as underestimating the actual level of overcrowding in our schools by not properly accounting for the need for class sizes consistent with constitutional parameters and other factors necessary for an adequate opportunity to learn.

As immediate next steps during the moratorium, the New York City Department of Education should:

  • Assess the prevalence and extent of the violations of students’ rights in schools in which co-location is currently taking place or in which new co-locations are being considered.
  • Broadly disseminate information about the resources, services, and supports to which all students in all schools are entitled under state statute, regulations and constitutional law. (Parents, students, educators, policymakers, and the community at large must understand that all sound basic education requirements apply, whatever the school size or configuration.)
  • Review and revise the Instructional Footprint to ensure sufficient classrooms, gymnasiums, laboratories, libraries, and other instructional spaces, cafeterias, offices, and storage for all schools to meet all sound-basic-education requirements, including appropriate class sizes and suitable curricula.
  • Amend the educational impact statement (EIS) to include a review of the impact of any proposed co-location on students’ sound-basic-education rights.
  • Quantify the number of personnel, including administrators and safety personnel that must be added in order to administer building issues resulting from co-location.

Finally, the current rights-related problems with co-locations extend beyond charter schools and can be found in buildings housing only co-located district schools. However, to the extent that the procedures and reforms that we recommend may obligate the city, in accordance with recently enacted state statutes regarding siting for charter schools, to make additional rental payments for charter operators who will need to find space in private facilities, the city should pay those amounts, rather than deprive district-school or charter-school students of their constitutional right to an adequate opportunity to learn. We also believe that the city should assiduously urge our legislators to amend the law to require the state to cover the full cost of charter-school rentals, as it was the state that imposed this financial burden on the city.

Yours sincerely,

Deborah Alexander, member, Community Education Council District 30
Teresa Arboleda, President, Citywide Council on English Language Learners*
Miriam Aristy-Farer, President, Community Education Council District 6
Isaac Carmignani, Co-President, Community Education Council District 30*
Gloria Corsino, President, Citywide Council for District 75*
Dr. Vera Daniels, President, Community Education Council District 28*
Lisa Donlan, President, Community Education Council District 1
Shenell Evans, Secretary, Community Education Council District 6
Joseph A. Fiordaliso, President, Community Education Council District 3*
Fe Florimon, member, Community Education Council 6, MBP Appointee
Tory Frye, member, Community Education Council District 6
Angela Garces, member, Community Education Council District 6
David Goldsmith, President, Community Education Council District 13
Jeffrey Guyton, Co-President, Community Education Council District 30*
Noah E. Gotbaum, Vice President, Community Education Council District 3
Leonie Haimson, Executive Director, Class Size Matters
Alicia Hyndman, Treasurer, Community Education Council District 29
Nicole Job, President, Community Education Council District 17
Ann Kittredge, member, Community Education Council District, District 28
Victoria Medelius, member, Community Education Council District 30
LaTonia McMillan, member, Community Education Council District 31
Lakeisha Moffatt, member, Community Education Council District 17
Sarah Morgridge, member, Blue Book Working Group*
Sonni Mun, member, Community Education Council District 2
Valarie Lamour, member, Community Education Council District 30
Michael Rebell, Executive Director, Campaign for Educational Equity at Teachers College, Columbia University
Naila Rosario, President, Community Education Council District 15
Tamara Rowe, member, Community Education Council District 2
Amy Shire, member, Community Education Council District 13
Arthur Schwartz, President, Advocates for Justice
Shino Tanikawa, President, Community Education Council District 2*
Rashidah White, President, Community Education Council District 5
Tesa Wilson, President, Community Education Council District 14