Yesterday, the U.S. Court of Appeals for the First Circuit affirmed the lower court’s dismissal of the attempt by 14 Rhode Island public-school students to ensure every student in Rhode Island and throughout the country learns the basic civic knowledge, civic skills, and civic values needed to maintain our democracy. The plaintiffs have now vowed to seek review of these constitutional issues by the U.S. Supreme Court.
The Appeals Court summarized its position as follows:
We conclude by echoing the district court’s observations in dismissing this case, that the students have called attention to critical issues of declining civic engagement and inadequate preparation for participation in civic life at a time when many are concerned about the future of American democracy.… Nevertheless, the weight of precedent stands in the Students’ way here, and they have not stated any viable claim for relief.
In response, Michael Rebell, lead counsel for the plaintiffs, professor of law and educational practice at Teachers College, Columbia University, and executive director of the Center for Educational Equity, said, “Like so many landmark civil rights cases before this, we have reached the pivotal moment where only the Supreme Court can clarify the meaning for our times of what it has previously written.”
“Both the District Court and Court of Appeals recognized the critical connection between civic education and the preservation of our republican form of government,” Rebell added. “However, the lower courts indicated that they lacked the authority to reconsider Supreme Court precedents that ‘stand in the students’ way.’ Only the Supreme Court can resolve the ambiguities in the case law regarding students’ rights to civic education. We look forward to making our case on behalf of all Rhode Island and U.S. public-school students before the U.S. Supreme Court.”
“The First Circuit’s decision articulated an extremely low bar for students’ rights to civic education, indicating that bare-bones reading and writing skills are sufficient basic education for effective citizenship in 2022. That is simply unacceptable,” stated Jennifer Wood, co-counsel for plaintiffs and executive director of the Rhode Island Center for Justice.
The plaintiffs plan to ask the Supreme Court to add the case to its 2022-2023 docket by filing a petition for certiorari within the next 90 days.
For more background and information on Cook v. McKee (also A.C. v. McKee and formerly Cook v. Raimondo) please visit www.cookvmckee.info.
On Monday, the U.S. Court of Appeals for the First Circuit in Boston heard oral arguments in A.C. v. McKee. Our executive director, Michael A. Rebell, argued on behalf of 14 Rhode Island student plaintiffs that all students should be guaranteed a K-12 education that prepares them to carry out their civic responsibilities in a democracy.
The Center for Educational Equity and attorneys for the plaintiffs in this case have appreciated the outpouring of interest and support for the attempt to establish a right to education for civic preparation under the U.S. Constitution. The court will likely render a decision in the first half of 2022, and the next legal steps in our efforts to guarantee civic education will become clear at that time.
The case has also received a good deal of media attention. Hours before the hearing, The Boston Globe published a powerful op-ed by Martha Minow, the 300th Anniversary University Professor at Harvard University. Minow, former dean of the Harvard Law School, also submitted an amicus brief in support of the plaintiffs.
This case is about the perpetuation of the constitutional values upon which the viability of our democratic system of government depends. And this is not hyperbole. The District Court strongly stated that “American democracy is in peril” and in 55 pages of eloquent prose described the peril and the importance of civic education in combating it. But, in the end, Judge Smith held that all that the Constitution guarantees to students is a minimum education, that is, basic reading and writing skills. We argue instead that the Supreme Court has said that students are entitled to a meaningful “quantum of education” that will prepare them to exercise important constitutional rights like the right to vote, free speech, and full participation in the political process. Reading and writing is a sine qua non, but much more is required.
We are asking the court to rule that some amount, some quantum of civic education, is required for students to exercise these constitutional rights. For example, media literacy is an absolute requirement to exercise constitutional rights in the 21st century. If you cannot distinguish erroneous from accurate information you are not in a position to vote effectively. You also need to acquire a certain amount of civic knowledge, civic skills, civic experiences, and civic values. That’s the core legal issue in this case…are kids entitled to some meaningful civic education that is going to prepare them to fully exercise their constitutional rights.
Exactly what quantity of these skills and values, and which of them is most important, is a factual question for the district court to determine on remand. I think students need media literacy; I think they need a number of other things. But those are the points about which we have to present evidence to the district court and we’re prepared to do that.
Frankly, there was a tension between the strong statements the Supreme Court made in Brown regarding the paramount importance of education and their later holding in Rodriguez that education is not a fundamental interest under the Constitution. By saying in Rodriguez that there should be future consideration of what quantum of education is necessary to exercise important constitutional rights, the Court was trying to reconcile Brown and Rodriguez by carving out a subset of education that should be considered a fundamental right. Yes, this would be a statement of a new right, but it would not involve the micromanaging of the curriculum in Rhode Island. The state has the discretion under such a declaration of a right to determine the details, but needs to make it a priority, to say that civic education in the 21st century, when American democracy is in peril, is really important, and not treat it as less important than other subject, as Rhode Island does now. As the Supreme Court stated in Plyler, the American people have always regarded education and the acquisition of knowledge as a matter of supreme importance.
Following a commitment by the New York State Legislature earlier this year to increase funding for high-need school districts around the state by $4.2 billion by the 2023-24 school year, a settlement was reached in the lawsuit New Yorkers for Students’ Educational Rights (NYSER) v. State of New York. The NYSER case was filed in 2014 by a coalition of parents, students, and groups representing other stakeholders in the public education system to compel the state government to fully fund the Foundation Aid formula, the school-funding system established to ensure a sound basic education for all New York students in the wake of the landmark Campaign for Fiscal Equity (CFE) decision.
The NYSER plaintiffs were represented by the Center for Educational Equity’s executive director Michael Rebell, and pro bono counsel at the law firms Morgan Lewis & Bockius and White & Case; as well as the Education Law Center.
In the settlement, the plaintiffs and the state agreed to put the case on hold on the condition that the stake lawmakers honor their commitment to phase in the remaining $4.2 billion increase in annual funding required to fully fund the Foundation Aid formula. If state follows through, the case will be dismissed. If not, the plaintiffs will be able to continue the litigation and seek an expedited trial to secure the promised funding.
Center for Educational Equity executive director Michael Rebell, co-counsel for the plaintiffs, said, “Unequal funding has long been a blight on education in New York State. Yesterday’s agreement will be an important mechanism to ensure that the State lives up to its constitutional obligation to adequately fund a sound basic education for all New York students.”
The state increased state aid for school funding this year by $1.4 billion statewide and has committed to providing similar increases for the next two years. The New York City public schools’ share of the increase this year was $530 million.
Full funding of the Foundation Aid formula is an important victory for New York students, particularly the students of color and students from low-income families who continue to be especially harmed by inadequate school funding and inequitable resources. It’s a big step but there’s still a great deal of work to do. To provide all students the opportunity for a sound basic education guaranteed to them by the state constitution, state leaders will need to update and improve the Foundation Aid formula and to create a new system that will provide accountability for adequate and equitable funding for all students on a permanent basis.
Last week, 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 (Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie and Utica) 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 in the case of Maisto v. State of New York again criticized the trial court judge, Albany County Supreme Court Judge Kimberley O’Connor, for misreading the applicable legal requirements.
This was the third time the case, originally filed in 2009, had been appealed to the Appellate Division. Rather than sending it back to the trial court once again, the court decided this time to undertake a rare “de novo” review and study the 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 populations 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 [the trial 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 Campaign for Fiscal Equity (CFE) v. State case.
The court also expounded upon, and applied to this case, legal principles established by the Court of Appeals, New York’s highest court, in its three major decisions issued more than 15 years ago 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).”
After reviewing all the facts concerning services provided to students in each of the eight small-city school districts, the court held that the State had violated the constitutional rights of students in every one of these districts. 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 not yet indicated whether it will appeal this decision to the Court of Appeals. Nor is it clear what impact the state legislature’s recent commitment to fully fund foundation aid over the next few years will have on the remedy.
History of the Maisto Litigation
In 2009, a number of small-city New York school districts filed an adequacy challenge to the state’s education funding system.After seven years of procedural wrangling, a trial was held in the spring of 2016. In September 2016, the trial judge, Kimberley O’Connor, issued a decision that rejected plaintiffs’ claims and dismissed the case.
The judge essentially ignored all the evidence of inadequate educational inputs and below-par educational outcomes presented by the plaintiffs during the months-long trial; instead, she ruled that as a matter of law the State need not provide the level of aid its own foundation aid formula had determined to be necessary to provide students the opportunity for a sound basic education.
Although she agreed the performance of the students in the plaintiffs’ districts was “not acceptable,” Justice O’Connor determined that the remedial action 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 detailed analysis of the causal link between insufficient resource inputs and unacceptable student performance outputs, of the type 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 Justice O’Connor’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 that there is a “post-CFE environment,” and the indication the Court of Appeals’ approach to analyzing constitutional deficiencies in CFE applied only to that case. Noting that the Court of Appeals had recently reaffirmed the continued relevance of the CFE precedent for current litigations in its 2017 decision in Aristy-Farer/NYSER v. State, the court held that Justice O’Connor must review all the evidence the parties had presented and provide specific findings of fact for each of the eight school districts regarding the needs of their respective students.
In January 2019, Justice O’Connor issued a 113-page opinion that again concluded plaintiffs had failed to meet their burden of proof and the case should be dismissed.
In this decision, the court 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. It systematically examined issues of class size, teacher qualifications, facilities, instrumentalities of learning, and supplemental services for “at-risk” students in each of the districts.
Despite the fact that the plaintiffs established that, in every one of the eight districts, many “at-risk” students were not receiving the full extent of supplemental academic intervention services required by state law, Justice O’Connor held that full compliance was “aspirational” and not a constitutional requirement.
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.”
The plaintiffs again appealed this decision to the Appellate Division, which, in May 2021, issued its decision reversing Justice O’Connor’s findings.
Note: The Center for Educational Equity, Teachers College, Columbia University, submitted an amicus brief in support of the plaintiff’s decision.
The New York State Legislature did something extraordinary for schoolchildren last week: It committed to increasing state education aid by $4.2 billion over the next three years to honor the pledge the state made in 2007 to fully fund the Foundation Aid formula enacted in response to the Campaign for Fiscal Equity (CFE) litigation, which I helped lead.
This is potentially historic. Together with billions in federal stimulus aid the schools will be receiving during this period, the new resources should put schools in a position to deal with the profound learning loss, emotional trauma and other setbacks students have suffered during the pandemic. These funds also should position New York City and other high-need school districts to allocate sufficient resources to offer the hundreds of thousands of students with special needs the counseling, bilingual education, special education, tutoring and other supports they are entitled to under state law but have been denied because of funding shortfalls. Moreover, these funds should allow the state to close resource gaps so students in lower-wealth school districts can benefit from class sizes, educator expertise, curricular offerings, enrichment activities and technology that approach what their peers in affluent districts receive.
As co-counsel for the plaintiffs in the CFE case, I am delighted that the state government has renewed the commitment it made so many years ago, and the long-overdue payoff has begun. But I am also plagued by a sense of déjà vu.
In 2007, the Legislature committed to phasing in, over a four-year period, the full $7 billion increase called for by the Foundation Aid formula. That formula was based on a needs-based calculation the state Education Department did in 2006 to determine the number of dollars required to provide all students the opportunity for a sound basic education — which is their right under the state Constitution as determined by the Court of Appeals, New York’s highest court, in CFE.
The state government kept its promise to its schoolchildren for only the first two years. Then the 2008 recession hit; in its wake, the state first postponed further increases, and then, when the federal stimulus aid of that era ran out, New York State cut school aid substantially. We’ve been playing catch-up to try to close resource gaps ever since. That’s why, at the present time, with inflation and other adjustments, approximately $4 billion is still owed to New York’s schoolchildren under the Foundation Aid formula.
I hope the state will keep its newly renewed commitment to fully fund Foundation Aid over the next three years. The first installment of the three-year commitment has now been appropriated, and it will be paid. But I worry about the installments due in years two and three. Actual budgetary appropriations are made on an annual basis. I believe the members of the Assembly and Senate made this three-year commitment in good faith and intend to honor it. But political winds can shift rapidly. As Yogi Berra said, “It ain’t over ‘til it’s over.”
As it happens, Attorney General Tish James can quickly end worries that students will be again shortchanged. The state’s past failure to fully fund Foundation Aid led students, parents and many city and state education and advocacy groups several years ago to initiate a new lawsuit for fair school funding, New Yorkers for Students’ Educational Rights (NYSER) vs. State of New York. That case is now awaiting trial in the state Supreme Court. The attorney general, as counsel for the defendants, should settle the case by agreeing to include the state’s three-year commitment to fully fund Foundation Aid in a court-ordered stipulation. That way, the funding will be guaranteed.
A court settlement should also include another key provision: mechanisms for permanently ensuring on a current basis the funding levels needed to provide all students their right to the opportunity for a sound basic education. The cost study the state Education Department undertook to develop the current Foundation Aid formula is now 15 years old. A lot has happened in the past 15 years: major demographic shifts, a reckoning with structural racism, new state mandates, new technologies and new concepts for promoting cost-effective use of educational funds. The state should now undertake a new cost study in a fair, objective and transparent manner to identify student needs and resource requirements in the post-pandemic era. A mechanism for assuring that such cost studies will be done periodically in the future should also be included in a court-ordered stipulation.
We’re on the cusp of education equity in New York. But we’re not there yet. To quote Yogi Berra one last time, we’re at a fork in the road; the attorney general needs to take it.
Rebell, a professor at Teachers College, Columbia University, is the Executive Director of The Center for Educational Equity, was co-counsel for plaintiffs in CFE and is currently co-counsel for plaintiffs in the NYSER case.
This op-ed was originally published by the Daily News on April 13, 2021.
Click here to be redirected to the original article.
We’ve compiled state and federal information to answer your questions about the New York education budget.
STATE FUNDING ISSUES
This year, New York State’s budget situation and budget negotiations have been complicated (but also made much easier) by the large infusion of federal aid that will be coming to the State as a result of the most recent relief bill. If you are unfamiliar with the budget process for New York State, here is a quick breakdown of how it typically goes:
The governor releases the proposed executive budget in January.
Shortly after that executive budget is released, the New York State Senate and Assembly hold joint public hearings throughout the end of January and the month of February.
By mid-March, each house of the Legislature releases a response to the executive budget with a proposed counter-budget.
How do the state senate and assembly education budget proposals compare?
Increase of $3.5B over the executive budget proposal
Increase of $3.2B over the executive budget proposal
State funding is supplemented with relief funds
State funding is supplemented with relief funds
Increase foundation aid by $1.37B
Increase foundation aid by $1.4B
Fully phase in foundation aid over 3 years
Fully phase in foundation aid over 3 years
Denies executive proposal to cut charter facilities aid to NYC
Back in January, we criticized Gov. Cuomo’s executive budget proposal for its severe austerity measures and his plan to supplant state education funding with federal dollars – federal dollars that were intended for COVID-19 relief. With the passing of the fed’s American Rescue Plan Act (ARP Act), the Governor can no longer make a case for his previously proposed cuts to New York’s education sector.
FEDERAL AID ISSUES
According to the U.S. Dept. of Education, the ARP Act provides the State of New York with $8.9 billion to help schools reopen.Allocations to states are in exact proportion to Title 1 funding that states receive under the Elementary and Secondary Education Act of 1965. New York City, the State’s biggest school district, is expected to receive roughly half of the ARP Act funds coming to New York at $4.5 billion.
Thanks to the influx of federal funds, there is no longer any reason to entertain the Governor’s proposed cuts to education funding. Indeed, the State Legislature has proposed deeper investment in the education system. Perhaps most notably, both the State Senate and the Assembly have proposed to fully phase in Foundation Aid over the next 3 years. Additionally, both houses have proposed restoring the $1.35 billion in cuts to state aid in the 2020-2021 budget and using federal relief funds to supplement (rather than supplant) state aid.
The main question now is what should we do with billions of dollars in supplementary funding? Reema Amin, of Chalkbeat, reported that several education advocates and stakeholders have big ideas for the relief dollars going to New York State and New York City. The United Federal of Teachers wants $1 billion to fund teams at each school that would provide academic intervention for students and assist with mental health needs. They also call for a pilot program that would reduce class size at 100 high-need schools and result in the hiring of 1,500 more teachers. The Alliance for Quality Education is calling for investment in socio-emotional learning and smaller class sizes. They also want a public-facing spending tracker that would provide clarity on how the state government is spending its funds. Education Trust-NY has called for investment in mental health through restorative summer programming that includes both academic and cultural enrichment for students. They have asked that NYC find out how many families want their children back in school buildings and proposed that the City offer Saturday enrichment programs. Class Size Matters and NYC Kids PAC want NYC to use funds to reduce class size and achieve a social worker to student ratio of 1:250. They ask that NYC hire 10,000 new teachers.
Based on the spending requirements established by the ARP Act, it does seem like any of these ideas are possible. Here’s a breakdown of the fed’s guidelines for using relief funds.
State Education Agency (SEA) Requirements
Local Education Agency (LEA) Requirements
Subgrant at least 90% to school districts (includes charter schools if they are also LEAs)
Allocate funds to LEAs within 60 days of receiving funds from the fed
Set aside at least 5% for addressing learning loss directly or through subgrants or contracts
Set aside at least 1% for summer enrichment programs
Set aside at least 1% for afterschool programs
May reserve, at most, 0.5% for administrative costs and the remainder for any emergency needs related to the pandemic
Must return any unspent funds to the Secretary of Education within 1 year of receipt
Must publish plan to reopen schools for in-person instruction within 30 days of receiving funding (unclear if this means all schools and it is also unclear if reopened schools need to be at full capacity)
The remaining funds may be used for any activity that school districts would typically be able to fund with their budgets
State Education Department Requirements:
Subgrant at least 90%to school districts.
Allocate funds to local education agencies within 60 days of receiving funds.
Set-aside at least 5% for addressing learning loss.
Set-aside at least 1% for summer enrichment programs.
Set aside at least 1% for afterschool programs.
States may reserve, at most, 0.5% for administrative costs and the remainder for any emergency needs related to the pandemic.
Return any unspent funds to the Secretary of Education within 1 year of receipt.
Local Education Agency (LEA) Requirements:
Publish plan to reopen schools for in-person instruction within 30 days.
Use at least 20% to address learning loss
The remaining funds may be used for any activity that school districts would typically be able to fund with their budgets (a full list of activities are listed at the end of this post).
This is good news for LEAs. The requirements for spending relief funds are vague enough that school districts can take this opportunity to make great improvements to their schools so long as it addresses learning loss. This means that in addition to addressing mental health needs and academic disparities, districts can also invest in addressing the civic learning loss that has resulted from the pandemic.
List of eligible activities that LEAs can use relief funds for:
“(A) Any activity authorized by the Elementary and Secondary Education Act of 1965.
(B) Any activity authorized by the Individuals with Disabilities Education Act.
(C) Any activity authorized by the Adult Education and Family Literacy Act.
(D) Any activity authorized by the Carl D. Perkins Career and Technical Education Act of 2006.
(E) Coordination of preparedness and response efforts of local educational agencies with State, local, Tribal, and territorial public health departments, and other relevant agencies, to improve coordinated responses among such entities to prevent, prepare for, and respond to coronavirus.
(F) Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth, including how outreach and service delivery will meet the needs of each population.
(G) Developing and implementing procedures and systems to improve the preparedness and response efforts of local educational agencies.
(H) Training and professional development for staff of the local educational agency on sanitation and minimizing the spread of infectious diseases.
(I) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including buildings operated by such agency.
(J) Planning for, coordinating, and implementing activities during long-term closures, including providing meals to eligible students, providing technology for online learning to all students, providing guidance for carrying out requirements under the Individuals with Disabilities Education Act and ensuring other educational services can continue to be provided consistent with all Federal, State, and local requirements.
(K) Purchasing educational technology (including hardware, software, and connectivity) for students who are served by the local educational agency that aids in regular and substantive educational interaction between students and their classroom instructors, including low-income students and children with disabilities, which may include assistive technology or adaptive equipment.
(L) Providing mental health services and supports, including through the implementation of evidence-based full-service community schools.
(M) Planning and implementing activities related to summer learning and supplemental afterschool programs, including providing classroom instruction or online learning during the summer months and addressing the needs of low-income students, children with disabilities, English learners, migrant students, students experiencing homelessness, and children in foster care.
(N) Addressing learning loss among students, including low-income students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and children and youth in foster care, of the local educational agency, including by—(i) administering and using high-quality assessments that are valid and reliable, to accurately assess students’ academic progress and assist educators in meeting students’ academic needs, including through differentiating instruction; (ii) implementing evidence-based activities to meet the comprehensive needs of students; (iii) providing information and assistance to parents and families on how they can effectively support students, including in a distance learning environment; and (iv) tracking student attendance and improving student engagement in distance education.
(O) School facility repairs and improvements to enable operation of schools to reduce risk of virus transmission and exposure to environmental health hazards, and to support student health needs.
(P) Inspection, testing, maintenance, repair, replacement, and upgrade projects to improve the indoor air quality in school facilities, including mechanical and non-mechanical heating, ventilation, and air conditioning systems, filtering, purification and other air cleaning, fans, control systems, and window and door repair and replacement.
(Q) Developing strategies and implementing public health protocols including, to the greatest extent practicable, policies in line with guidance from the Centers for Disease Control and Prevention for the reopening and operation of school facilities to effectively maintain the health and safety of students, educators, and other staff.
(R) Other activities that are necessary to maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency.”
 LEAs may address learning loss through “implementation of evidence-based interventions, such as summer learning or summer enrichment, extended day, comprehensive afterschool programs, or extended school year programs, and ensure that such interventions respond to students’ academic, social, and emotional needs and address the disproportionate impact of the coronavirus on the student subgroups described in section 1111(b)(2)(B)(xi) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311(b)(2)(B)(xi)), students experiencing homelessness, and children and youth in foster care…”
Last week, Governor Cuomo released his proposed budget for the upcoming fiscal year. As expected, the governor’s budget promises austerity measures in response to the fiscal crisis that has resulted from the COVID-19 pandemic. It also details how the governor plans to use federal funds that New York State has received to provide school districts with financial relief. Based on the proposal, New York’s schools will not be receiving the full $4.3 billion in COVID-19 relief funds that Congress recently authorized; the governor’s budget siphons off a substantial portion of these funds, approximately $2 billion, to offset reductions in state aid to the educator sector.
Rather than target the federal relief funds strictly to the unexpected COVID-19 expenses that schools incurred in 2020 (i.e., increased technology demands, teacher training, online platform purchases, etc.), the governor suggests that the state will only reimburse districts for the cost of transporting learning materials and food to students. While the proposal accounts for technology demands by acknowledging the continued allocation of funds from the Smart Schools Bond Act, this act was approved by voters in 2014, long before the global pandemic. Therefore, its appropriations are not aligned with current district needs and technology expenditures.
The governor’s proposal touts that it will maintain funding levels for certain key elements of the state’s education budget, but it ignores that public school districts, and high-need districts in particular, have been historically underfunded and continue to suffer from inequitable funding practices. Since the pandemic hit New York, high-poverty districts saw a drop in their funding but affluent districts had roughly the same amount as they would expect without a fiscal crisis. Even with the $2 billion in federal aid to replace reductions in state aid, under the governor’s proposal, the amounts received by school districts will not be sufficient to meet inflationary cost increases and pressing student needs resulting from the COVID-19 crisis like major learning gaps and mental health supports. Moreover, the state has yet to make good on the $3.5 billion still owed to the state’s schools as a result of the Campaign for Fiscal Equity lawsuit. Indeed, the failure to fully fund the state’s Foundation Aid Formula has led to another lawsuit.
The governor also would reduce, by almost $400 million, the so-called “formula-based aids” such as transportation and BOCES aid. He would convert the funding for these services, which now are reimbursed on the basis of actual costs incurred each year by school districts, into a new block grant category that presumably will be based on annual budget allocations (and potential cuts) rather than actual annual costs.
Hidden in the governor’s proposed budget are additional cuts for the state’s, and the nation’s, largest school district, New York City. For example, the proposal would eliminate reimbursement to New York City for the cost of charter school rental assistance. This means that the city would be on the hook for the full amounts of the rental costs that charters pay to operate in private facilities. Since most charter schools (including those of large charter networks like KIPP, Achievement First, and Success Academy) are authorized at the state level by the SUNY Charter Institute, this move would be an imposition on the independence of NYC’s public system and its theory of public education. The city would be forced either to help charters move from private spaces to co-locate in public school buildings–an often controversial and contested move–or face greater fiscal demands on its budget than previously expected. In other words, the state, which has authorized the fifth most charters in the country in spite of opposition of many New York City parents to large charter networks, is forcing New York City taxpayers to foot the bill for its decisions.
These cuts and austerity measures needn’t be so severe. New York is often cited as one of the wealthiest places on earth because it houses so many millionaires and billionaires; this means a progressive tax system could greatly improve the economic welfare of the state. In recognition of this fact, Governor Cuomo has proposed short-term marginal tax increases on the richest New Yorkers in the form of a surcharge, but he could do so much more. The proposed budget calls for a 2% increase on taxable incomes over $5 million in order to raise $1.5 billion–below the budget reduction that the education sector would be facing and coming nowhere close to the total budget deficit faced by the state. This raises the question of why the governor would take such a small step toward balancing the books. It seems that the primary reason is the myth of millionaire tax flight.
Cuomo and many fiscal conservatives have argued that wealthy people are highly mobile and would simply pack their bags and flee New York to a lower tax state if there were ever any tax hikes on their wealth. However, there is little evidence to support this notion. Data analysis from Dr. Cristobal Young of Cornell University suggests just the opposite. It turns out very few U.S. millionaires migrate to different states for lower tax rates. Indeed, millionaire taxes are actually taxes on what Dr. Young calls the “late career embedded elite.” Put simply, most of New York’s wealthy elite are people who benefit from and enjoy the business and cultural advantages that New York offers and therefore are highly unlikely to leave where they live and work as a result of tax increases.
The governor’s proposal will now be considered by the state legislature, which must enact a final budget for the next fiscal year by April 1.
Plaintiffs will appeal, saying the decision gives them a road map to the First Circuit
Judge William Smith of the U.S. District Court for Rhode Island yesterday issued his long-awaited decision in Cook v. Raimondo, a case filed by a group of Rhode Island public school students and families who seek to establish a right under the U.S. Constitution to an education adequate to prepare them to participate effectively in their constitutional rights to “voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”
Judge Smith granted the defendants’ motion to dismiss the case, but did so in a manner that eloquently set forth the critical importance of the issues the plaintiffs raised:
This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our and their peril. Unfortunately, this Court cannot, for the reasons explained below, deliver or dictate the solution — but, in denying that relief, I hope I can at least call out the need for it.
The judge added:
But while this lawsuit must be dismissed, it is worth pausing, before explaining why, to acknowledge the importance of Plaintiffs’ effort here. This case does not represent a wild-eyed effort to expand the reach of substantive due process, but rather a cry for help from a generation of young people who are destined to inherit a country which we — the generation currently in charge — are not stewarding well. What these young people seem to recognize is that American democracy is in peril. Its survival, and their ability to reap the benefit of living in a country with robust freedoms and rights, a strong economy, and a moral center protected by the rule of law is something that citizens must cherish, protect, and constantly work for. We would do well to pay attention to their plea.
Plaintiffs in Cook v. Raimondo argue that the U.S. Constitution entitles all students to an education that prepares them to participate fully in a democracy. It alleges that the state of Rhode Island is failing to provide tens of thousands of students throughout the state with the necessary basic education and civic-participation skills. The plaintiffs are 14 high school, middle school, elementary school, and preschool students (or parents on behalf of their children) attending public schools in a variety of school districts throughout the state. An ultimate decision on behalf of plaintiffs in this case would establish a constitutional right to education for students throughout the United States.
Judge Smith rejected the plaintiffs’ equal protection claim, writing that, although the U.S. Supreme Court “left the door open just a crack” for reconsideration of its 1973 decision in San Antonio Ind’t Sch. Dist. v. Rodriguez that education is not a right the U.S. Constitution, he interpreted that “crack” to allow the courts to consider only a case that alleges that students are receiving no education whatsoever or an education that is “totally inadequate.” He also rejected plaintiffs’ “substantive due process” claim that a right to education for citizenship is “deeply rooted in the nation’s history and traditions” because “[p]recedent clearly dictates that, while education as a civic ideal is no doubt deeply rooted in our country’s history, there is no right to civics education in the Constitution.”
Judge Smith’s opinion squarely recognized the federal court’s authority to review the students’ claim on the merits, namely whether a constitutional right to civics education represented the “quantum of education” that might be necessary for students to be prepared for the “meaningful exercise” of their constitutional rights. While Judge Smith found, to his regret, that he was unable to connect the legal dots to support this claim, his opinion articulates what is at stake for our country and our Constitution, leaving the plaintiffs a road map to present their appeal to the First Circuit.
Judge Smith has written the most eloquent and forceful justification I’ve ever read for why America may not “survive as a county” if our students don’t obtain a civic education adequate to allow them to meet the challenges jeopardizing our democracy. The final paragraph to his opinion reads:
“Plaintiffs should be commended for bringing this case. It highlights a deep flaw in our national education priorities and policies. The Court cannot provide the remedy Plaintiffs seek, but in denying that relief, the Court adds its voice to Plaintiffs’ in calling attention to their plea. Hopefully, others who have the power to address this need will respond appropriately.”
Rebell, and the students and families he represents, believe a strong stance by the court will be necessary to ensure the policymakers and school leaders who have the power to address these issues actually do so. Rebell said, “Judge Smith acknowledged that the U.S. Supreme Court in Rodriguez left the door open “a crack” for reconsideration aspects of that decision; we hope to convince the Court of Appeals that this open door does, in fact, permit the courts to rule on the critical issues raised by our case.”
This Op-Ed originally appeared in the August 22nd edition of the New York Daily News, found here.
In the coming school year, public school districts will confront escalating costs as they strive to meet students’ increased needs during the coronavirus crisis. At the same time, they face major budget cuts as the state contends with large revenue shortfalls. The impact of this crisis, like other effects of the pandemic, can be expected to fall disproportionately on Black and brown and low-income communities whose schools were starkly underfunded before COVID-19 hit.
In 2003, we led the Campaign for Fiscal Equity (CFE), a coalition of parents and community groups that obtained a landmark ruling from the Court of Appeals, New York’s highest court. The court declared that every student in New York State has a constitutional right to a meaningful opportunity to obtain the knowledge and skills they need to be capable civic participants and to compete for decent jobs. The court ordered the state to determine the actual cost of providing such educational opportunities and to implement an equitable, needs-based funding formula to provide all students a sound basic education.
Over the course of the past 15 years, the state has failed to comply with this ruling. As a result, the public has come to view the underfunding of schools and districts that predominantly serve low-income and Black and Brown students as normal and inevitable. It is not.
Although Gov. Cuomo has been a true hero in leading this state in the fight against COVID-19, for the past decade he has been the main impediment to the realization of the constitutional right of all students to meaningful educational opportunities. Despite repeated pleas from the Regents to fully fund the foundation aid formula developed in response to the CFE litigation, the governor has refused, and the formula is still underfunded by about $3.8 billion per year, most of it owed to high-need districts.
Instead of using the approximately $1 billion provided by the federal CARES act to help schools deal with the enormous added costs of educating students during this pandemic, the governor used the money to compensate for a $1 billion reduction in state aid for the coming school year. Unless the federal government provides more money to help cover revenue gaps, the governor promises more cuts.
The governor’s refusal to fairly fund education has forced us to return to court. A coalition of statewide education organizations, parents and students is currently preparing for trial in New Yorkers for Students’ Educational Rights (NYSER) vs. State of New York. Ironically, Attorney General Tish James, who campaigned for office as “the people’s lawyer,” is not only defending the governor’s attempt to deny millions of students their constitutional rights; she has retained the same Atlanta law firm that was paid more than $8 million in legal fees to join the state’s losing cause in the CFE litigation. (Two major New York law firms are working for the NYSER plaintiffs pro bono.)
The pandemic has starkly exposed the terrible extent of social vulnerabilities and inequities New York has long ignored or thought too complex or politically risky to confront. This is not a time to perpetuate and magnify these inequities.
Public understanding of the true value of teachers and schools has never been greater, and people throughout the state are committed to ending structural inequities. The public will support meeting students’ needs, and the very wealthy will accept the higher tax burden that is necessary to do so.
The governor and the attorney general should settle the new litigation and join with the coalition that brought the case to calculate the actual cost of properly educating the state’s children during this crisis and to establish a new funding system that will ensure on a permanent basis an equitable and cost-effective system for ending opportunity gaps and educating all of the state’s children.
Jackson and Rebell co-founded the Campaign for Fiscal Equity. Mr. Jackson is a state senator and Rebell is co-counsel for plaintiffs in the NYSER litigation and a professor of law and education at Teachers College, Columbia University.
On April 23rd, the U.S Court of Appeals for the Sixth Circuit issued a landmark decision in the Gary B. v. Whitmercase, holding that there is a “fundamental right to a basic minimum education” under the U.S. Constitution. The two-to-one decision of the three-judge panel defined the right in terms of “access to literacy.”
Students in very low performing schools in Detroit brought the case. They claim that—due to the absence of qualified teachers, crumbling facilities, and insufficient materials— the conditions in their schools are so bad students leave school virtually illiterate. As the decision states, “Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” Because of this, these students attend “schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted.”
The Sixth Circuit Court of Appeals reversed a lower court ruling that had dismissed the case. The court held there is a “fundamental right to a basic minimum education” that provides access to literacy as a matter of “substantive due process” under the Fourteenth Amendment. The U.S. Supreme Court has held that a fundamental right for substantive due process must be “deeply rooted in this Nation’s history and tradition.” Accordingly, the Sixth Circuit discussed in detail the history of education in the United States, especially at the time of the adoption of the Fourteenth Amendment. The Court also relied on the precedent of the Supreme Court’s 2016 ruling in Obergefell v. Hodges that single-sex marriage was a fundamental right as a matter of substantive due process.
This is the first time a court has asserted a federal right to education. In 1973, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court ruled that education is not “a fundamental interest” entitled to strict scrutiny analysis under the equal protection clause of the Fourteenth Amendment (although the Court emphasized in the same decision that “education is perhaps the most important function of state and local governments,” as it had previously held in Brown v. Board of Education). Even though the Texas system of educational finance provided the plaintiff students only half the per-capita funding that students in a neighboring, more affluent district received, the Supreme Court deemed this a “rational” state policy because it promoted local control of education.
In the nearly 50 years since Rodriguez, a number of cases have sought to distinguish and limit the scope of that ruling, but none has succeeded prior to this major pronouncement from the Sixth Circuit.
The Gary B. case has been remanded to the U.S. District Court for the Eastern District in Michigan for a trial and further proceedings. Governor Whitmer and the other defendants have not yet indicated whether they intend to appeal the Sixth Circuit’s ruling.
For procedural reasons, the Sixth Circuit did not decide the claims plaintiffs had raised under the Equal Protection Clause of the Fourteenth Amendment. That issue may be decided by the U.S. District Court for Rhode Island where a decision is currently pending in Cook v. Raimondo, another case seeking to establish a right to education under the U.S. Constitution. The main argument asserted by the Cook plaintiffs is that, in the Rodriguez decision, the Supreme Court left open the question of whether there is a right to the “quantum of education” students need to exercise “meaningfully” important constitutional rights like the right to vote, to serve on a jury, to exercise free speech, and to participate in political activities.
Michael A. Rebell, executive director of the Center for Educational Equity at Teachers College and lead attorney for the plaintiffs in Cook v. Raimondo, said:
We applaud the outcome of the Gary B. case, which may bring important relief to students in Detroit. Nevertheless we are concerned about the narrow scope of the right to education as defined by the Sixth Circuit opinion. We are hopeful that Judge Smith in Rhode Island will declare that under the Equal Protection Cause, or other constitutional provisions, students have a fundamental right to a more robust and meaningful education—one that provides the knowledge, skills, experiences, values, and civic integration necessary to prepare them to function effectively as civic participants in a democratic society.