Michael Rebell weighs in on Kansas Supreme Court Decision

Michael Rebell was cited in The Wichita Eagle’s recent article on the potential for a public school shut down in Kansas if the state legislature fails to comply with the recent school funding rulings,  “The Kansas Supreme Court for more than a decade has been judging the Legislature’s efforts to comply with rulings against the state in both the Montoy and Gannon v. Kansas cases. The frustrated court threw down its hammer on May 27, ruling that if the Legislature didn’t amend its latest funding formula by June 30 to be equitable to poorer districts, the state will be barred from raising, distributing or spending education funds until it does. It wasn’t the first time a state high court – or even Kansas’ high court– had delivered such a mandate. But this deadline is particularly striking, said Michael Rebell, professor of law and educational practice at Teachers College, Columbia University. ‘This time the court stance is stronger’ Rebell said. ‘And the fact that they reiterated it this close to a deadline shows they mean business.'”

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CEE Testifies at May 20th U.S. Commission on Civil Rights #EduEquity Briefing

Joe at commision

On May 20th, the Campaign for Educational Equity contributed legal, policy, and public-engagement findings and recommendations to “Public Education Funding Inequality in an Era of Increasing Concentration of Poverty and Resegregation,” a national U.S. Commission for Civil Rights briefing in Washington, D.C.

CEE researcher and director of public engagement Joe Rogers, Jr., joined state and district officials, civil rights leaders, parents, labor leaders, and representatives of the U.S. Department of Education in discussing potential solutions to longstanding racial and socioeconomic discrimination in the distribution of educational opportunity. A copy of the full transcript of the testimony can be found both here and below.

This fact-finding conversation was a sobering reminder of how (and just how many) children continue to be hurt by the broken promises and legal violations of state and local governments across the nation. It is shameful that, 62 years after Brown v. Board of Education, educational inequities continue to keep children of color and children living in poverty from fulfilling their enormous potential.

However, bold action informed by the types of research-, policy-, and public-engagement-centered recommendations discussed at the briefing can help reverse the tide of educational injustice and lead us on a path to true equity and excellence.

U.S. Commission on Civil Rights Hearing: 

Public Education Funding Inequality in an Era of
Increasing Concentration of Poverty and Resegregation

May 20, 2016

Testimony delivered by Joseph R. Rogers, Jr.
Director of Public Engagement / Senior Researcher
The Campaign for Educational Equity at Teachers College, Columbia University [1]

Good morning, commissioners, distinguished guests, and members of the public. My name is Joe Rogers, Jr., and I serve as the Director of Public Engagement and a senior researcher with the Campaign for Educational Equity at Teachers College, Columbia University.

The Campaign for Educational Equity is a nonprofit research and policy center that uses legal analysis, research, policy development, and public engagement to advance the right of all children to meaningful educational opportunities and to define and secure the full range of resources, supports, and services necessary to provide these opportunities to socioeconomically disadvantaged children.

On behalf of our executive director, Michael Rebell, and our entire team, thank you for shining a light on the tragic, shameful educational inequities that continue to waste the potential of millions of children throughout this nation and, in turn, the potential of the nation itself.

This morning, I am here to provide an historical and current legal context for this issue and to offer a couple of examples of how my colleagues and I are working to advance the necessary policy reforms and meaningful public-engagement initiatives that are key to achieving true and lasting educational justice for children who have been systematically shortchanged by society.

Since 1973, when the United States Supreme Court, in Rodriguez v. San Antonio Independent School District, closed the federal courts to litigants seeking to overcome fiscal inequities in education, lawsuits challenging state methods of funding public schools have been launched in 45 of the 50 states. Since 1989, plaintiffs have prevailed in over 60% of the final liability decisions in these cases. Plaintiffs’ claims have largely been based on provisions in state constitutions, many of which date back to the 18th and 19th centuries, that speak of the states’ obligations to provide all students an “adequate education” or a “sound basic education.”

Not surprisingly, state courts found that most school districts that serve predominantly students of color and students living in poverty lacked adequate funding to provide their students the opportunity to achieve the targets that the states themselves had set. In these “adequacy” cases, courts focus on the substance of the education students are actually receiving in the classroom rather than on comparing the amount of funds that are available to each school district, as in the equity cases.

Essentially, what the court orders have done in these cases is to require the states to ensure that schools—and especially schools in urban and rural areas with high poverty rates—have the resources to provide their students a fair opportunity to meet the state’s own academic expectations as set forth in the state standards and the federal accountability requirements. They have ordered states to revise their education-finance systems to ensure that districts with low property tax wealth will have sufficient funding to provide all of their students the opportunity for a sound basic education.

A major study published by the National Bureau of Economic Research (NBER) in January 2015 considered the impact of state court decisions in 28 states between 1971 and 2010.[2] It concluded that school-finance reforms stemming from court orders have tended both to increase state spending in lower-income districts and to decrease expenditure gaps between low- and high-income districts. The authors also discussed the effects of court-ordered funding reforms on students’ long-term success. The researchers found that a 20% increase in annual per-pupil spending for K–12 students living in poverty leads to almost one more year of completed education. In adulthood, these students experienced 25% higher earnings, and a 20 percentage-point decrease in adult poverty. The authors posit that these results could reduce at least two-thirds of the so-called achievement gap of adults who were raised in low- and high-income families.

Students and parents living in poverty, and disproportionately students of color, are the public stakeholders most directly affected by educational inequities and educational-rights violations, yet they seldom have access to user-friendly legal and research-based information that would allow them to play more active and effective roles in the struggle for educational justice. The best legal decisions and policy reforms will always fall short of their goals if these students and families lack the tools and information that they need in order to mobilize their communities and hold governmental authorities accountable for delivering at least the educational opportunities required by law.

For this reason, two years ago, the Campaign for Educational Equity began producing a series of Know Your Educational Rights handouts that we use in collaborations with parent and student groups throughout New York City and beyond. In addition, this school year we worked with parents to adapt our school-resource data-collection tools to create a set of “resource inventories” that they have begun using to document and publicize confirmed or suspected educational-rights violations. Finally, a full-length play written and performed by a group of NYC public high school students who learned about their rights through our Know Your Educational Rights initiative, is inspiring audiences throughout New York State to learn more about educational inequities and take steps to remedy them.

In 2013, the bipartisan, national Equity and Excellence Commission, a congressionally authorized body (on which our executive director Michael Rebell served as a member), issued detailed recommendations to Congress on adequate and equitable state funding for education.[3] Among other things, the Commission’s report, For Each and Every Child, proposed that all states

  • Identify and publicly report the teaching staff, programs and services needed to provide a meaningful educational opportunity to all students of every race and income level, including English language learners and students with disabilities, based on evidence of effective educational practices.
  • Determine and report the actual costs of delivering these resources cost effectively.
  • Adopt a school-finance system that will provide equitable and sufficient funding for all students to achieve state standards.
  • Ensure that their finance systems are supported by stable and predictable sources of revenue to provide meaningful educational opportunities on an ongoing basis.
  • Develop systems to monitor and ensure that districts and schools use funding effectively to enable all students achieve state standards.

The Commission also recommended that the federal government do the following:

  • Direct states to adopt school-finance systems that will provide a meaningful educational opportunity for all students.
  • Target significant new federal funding to schools with high concentrations of students living in poverty and provide financial incentives to states do the same.
  • Provide incentives for states to reduce the number of schools with concentrated poverty.
  • Provide grants to assist states in developing methodologies to determine the cost of providing meaningful educational opportunities, and improving the availability of data on finance and student performance.
  • Consider expanding the federal government’s authority to address longstanding and persistent issues of inequity in school finance, including new enforcement measures that stop short of withdrawing funding from students most in need.\

In enacting the Every Student Succeeds Act, Congress ignored all of school-funding-reform recommendations. In addition, ESSA authorizes minimal 3% annual Title I increases for the next few years, and it is not clear that Congress will appropriate even those amounts. While the law does include two new provisions that deal with equity in funding[4], both provisions relate to intra-district matters and do not deal with the critical (and much larger) issue of whether these districts—and all other districts in their respective states—are presently receiving adequate state-level funding. Unless and until suitable provision for adequate and equitable funding is included in ESSA, Congress’s intention that “Every Student Succeeds” will remain wishful thinking.

In conclusion, as our full written testimony details, the battlegrounds for educational equity have largely shifted to the states. However, to achieve true fairness in educational opportunity and to afford millions more students a chance to fulfill their potential and to contribute to the nation’s success, the federal government must also play a significant role in leveling the school-resource playing field.

To that end, we recommend that the Commission on Civil Rights

  1. Widely disseminate information about the equity and adequacy litigations in the state courts and the many successful reforms that have resulted from them.
  2. Recommend that states and school districts develop effective mechanisms for informing parents and students of their educational rights and engaging them in securing those rights.
  3. Endorse and widely disseminate the findings and recommendations for both state action and federal action of the Equity and Excellence Commission.
  4. Recommend that Congress revise the Every Student Succeeds Act to include additional federal funding and the federal directives, incentives, and enforcement set forth in the recommendations of the Equity and Excellence Commission.
  5. Conduct and/or commission additional research on equity and adequacy of funding and on the availability of essential educational resources at the school level.
    Thank you again for inviting the Campaign for Educational Equity to participate in this hearing. I look forward to answering your questions.

Thank you again for inviting the Campaign for Educational Equity to participate in this hearing. I look forward to answering your questions.


[1] Please note that the views of The Campaign for Educational Equity do not necessarily reflect the views of Teachers College, its trustees, administration or faculty.
[2] Jackson, C. K., Johnson, R., & Persico, C. (2015). The effects of school spending on educational and economic outcomes: Evidence from school finance reforms, NBER Working Paper, No. 20847. Washington, DC: National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w20847.
[3] Equity and Excellence Commission (2013). For each and every child—A strategy for education equity and excellence. Washington, DC: U.S. Department of Education.
[4] Every Student Succeeds Act of 2015, 20 U.S.C.A. §6301 et seq.

Visit www.tc.edu/CEEdonate to help diverse education stakeholders, from students and parents to educators and policymakers, better understand and advocate for educational rights.

NY State School Aid Increases: Anything But Progressive

The New York State Legislature, instead of following the Foundation Aid Formula (which, according the State’s own budget office, uses “objective criteria to better target State funds to high needs districts”), continued the notorious “three men in a room” practice and gave NYC its usual 38.86% and Long Island, etc. their negotiated shares, without regard for students’ actual needs. Chalk another one up for politics over ‪#‎EduEquity‬.

Citizens Budget Commission: “This large infusion of resources, which further solidifies the State’s position as the nation’s top spender on public education, is not targeted to the neediest districts and maintains disparities in spending per pupil.”

NYS School Funding

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State Aid for Education: A Constitutional Analysis of the Enacted 2016-17 NY State Budget

By Michael A. Rebell 

The 2016-17 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 $1.35 billion, which will provide an average increase of 4% in foundation aid and a 5.9% increase in overall school aid for the state’s school districts. Although Governor Andrew Cuomo has boasted that “this is the best [budget] plan the state has produced…in decades literally,” in percentage terms the increase is basically the same as last year’s. Moreover, this budget does not rival the 14% increase in foundation aid and 9% increase in overall education aid that the legislature enacted for 2007-08, immediately following the final court decision in the Campaign for Fiscal Equity (CFE) case.

Bright spots in the budget include a substantial commitment to converting struggling schools into community schools that provide important health, academic, and social supports to students and their families. The foundation-aid increase includes $100 million earmarked for school districts to spend on community schools, and, there is an additional categorical allocation of $75 million for expanding community schools in districts with struggling or persistently struggling schools. The budget also finally does away with the notorious “gap elimination adjustment” that, since 2010, has provided a rhetorical justification for the state to reduce educational spending below constitutionally required amounts. Plaintiffs in the pending NYSER v. State of New York litigation are continuing to press for a court ruling that would prohibit the state from ever reinstating the GEA or any similar device in the future.

This year’s increase is well below the $2.4 billion in additional state aid that the Regents had recommended. And it is not sufficient to remedy the state’s ongoing violation of the requirements of Article XI, §1 (the education article of the state constitution), and does not fulfill the clear directives of the state’s highest court in the 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 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]

The state also continues to maintain a “supermajority” tax cap that prohibits school districts outside of New York City from increasing local property tax rates by more than 2% or the last year’s increase in the consumer price index, whichever is less, without the approval of 60% of the district’s voters. This year the cap allowed increases of essentially 0%. The foundation formula is premised on an expectation that local property taxes will be funding a share of the school district’s budget, in accordance with local property wealth. Since, in many cases, the property tax cap will prohibit the district from raising a fair share of needed revenues from local taxes, the shortfall between the available resources and the amounts needed to provide students the opportunity for a sound basic education will be even greater than is indicated by the continuing shortfall in state aid. It should be noted that an attempt to extend the property tax cap to New York City this year was defeated.

Major Violations of Constitutional Requirements

Among the major violations of constitutional requirements that the 2016-17 state budget perpetuates are (1) a continuing deferral of full funding of the amounts needed to meet constitutional sound basic education requirements; (2) a revival of the infamous “shares agreement” that was banned by the courts in CFE; and (3) a failure to provide full funding for universal prekindergarten services.

1. 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. Six years past this deadline, the state continues to flout 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 2016-17, even with the $1.35 billion in additional funding that the state appropriated, total foundation funding will still be approximately$4 billion below the amount the state legislature itself had determined to be necessary to provide all students the opportunity for a sound basic education

2. Reversion to the Infamous “Shares Agreement”

In its CFE decisions, the Court of Appeals repeatedly specified that the state’s funding system must “align funding with need” (CFE II, 100 N.Y. 2d. at 929), that resources must be “calibrated to student need” (id. at 929), and that the amount of state aid provided must “bear a perceptible relation to the needs of City students” (Id. at 930; CFE III, 8 N.Y.3d at 21 (2006)). 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 (see CFE v. State of New York 187 Misc. 2d 1, 89 (S. Ct., N.Y. Co, 2001)). Significantly, for the past few years, and now again for 2016-17, New York City’s share of the state aid increase will be the same 38.86% or the “fixed percentage share” that the court held to be blatantly unconstitutional in CFE.

3. Failure to Fund Prekindergarten Services Appropriately

Two years ago, the governor and the legislature committed to provide access to 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 were ready to expand their programs.[2] However, for 2016-17, the third year of the proposed five-year implementation period, the state again failed to keep that pledge.

For the 2014-15 school year, the legislature appropriated $300 million for New York City and only $40 million for all other school districts in the state. Last year, and now for this year, the state appropriated only those same amounts. This means that students in many upstate districts still cannot be served. Estimates of the number of currently unserved children run as high as 100,000.

The legislature did enact a new $22 million competitive grant program for preschool for three year olds, which will expand opportunities for a small number of these younger students. The manner in which this funding has been appropriated, however, further complicates the already complex and fragmented funding mechanisms that New York State now utilizes for pre-K: there are now seven separate programs through which pre-K is funded, many of which are competitive grants that school districts must research and navigate in order to obtain funding for their students.

Necessary State Action for Achieving Constitutional Compliance

The Campaign for Educational Equity (CEE) will continue to press 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 the NYSER litigation that is now pending before the New York State Supreme Court. In that case, the plaintiffs are claiming, based on research and recommendations from CEE, 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
  • Reduce costs without violating children’s constitutional rights by eliminating unnecessary mandates, revamping ineffective requirements, and providing school districts clear guidance on how to maximize cost efficiency and cost effectiveness while safeguarding constitutional educational services;
  • Develop and implement an up-to-date methodology to determine the actual costs of providing all students with the essential resources for a sound basic education in a cost-effective manner that properly weighs student needs and concentration-of-poverty factors;
  • Revise the state funding formulas to ensure that all schools receive sufficient resources; and
  • Create state and local accountability mechanisms for sound basic education and ensure enforcement by the state education department and other entities and the means and capacity to carry out those responsibilities. 

 _____________________________

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

[2]”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.

 

The New Federal ESSA Statute: A Step Backward for Fair School Funding

By Michael A. Rebell 

At the end of 2015, Congress finally enacted a new version of the Elementary and Secondary Education Act, which now will be known as the Every Child Succeeds Act (ESSA). Our highly polarized Congress was eight years late in reconsidering and revising the major federal statute for funding services for students who are “educationally disadvantaged”; the previous version of this law, known as No Child Left Behind (NCLB), was scheduled for reauthorization in 2007. Millions of students living in poverty, and English language learners (ELLs), were, in fact, left behind by NCLB. Although ESSA does in limited ways correct some of the shortcomings of NCLB and provide scope for some educational innovations, on balance this new law ignores the real needs of the students it is designed to serve and so is likely to be no more successful than its predecessor in carrying out the aspirations of its title.

Emphasizes Accountability over Resources
The fundamental problem with ESSA is that, like its predecessor, it emphasizes accountability for results but neglects the resources that schools, teachers, and students need to reach high academic standards. Its accountability theory, borrowed from the business world, treats principals and teachers as managers subject to sanctions should they fail to achieve designated performance targets. Businesses, of course, generally provide their managers and employees adequate resources to do their jobs well as a matter of course; states do not. For states (and the federal government) to hold students and educators accountable for increasingly demanding academic standards but then shirk their legal and moral responsibility to deliver sufficient funding to provide all students a meaningful opportunity for an adequate and appropriate education is ineffective, unreasonable, and wrong.

Moves Authority to States
Before discussing this core funding issue in more detail, I should mention a few of the positive, innovative features of ESSA. First, the law eliminates the unachievable federal mandates that all students (100%) achieve proficiency in strong state standards within 12 years and that schools achieve strict adequate yearly progress (AYP) targets based on that unattainable goal. ESSA allows states to set their own outcome goals and progress measures. It also requires states to add to standardized test scores and graduation rates at least one qualitative measure such as student engagement, completion of advanced course work, and school climate and safety (and permits them to include more than one of these measures). The statute requires, however, that “much more weight” be given to standardized scores and graduation rates than to these other measures. States may also use a limited amount of their federal funds for academic enrichment and comprehensive educational services such as promoting greater access to high-quality and advanced courses in science, mathematics, languages other than English, the arts; expanding mental-health services; promoting expanded and better use of technology; and promoting greater coordination with community-based services and programs.

Although states now will have the option to utilize their ESSA funds to implement these innovations, the U.S. Department of Education cannot compel them to do so. In fact, the ESSA statute places numerous new limitations on the authority of the U.S. Secretary of Education to overrule state discretion in many aspects of their plans and accountability systems. Congress has stated that the Secretary cannot tie waivers to requirements for state teacher-evaluation systems and has restricted the Secretary’s oversight in many other ways-clearly reacting to the conditions that Secretary Arne Duncan had attached to Race to the Top grants and NCLB waivers.

Neglects School Funding Inequities and Inadequacies
When Congress enacted NCLB by a strong bipartisan majority in 2001, the lead congressional negotiators, Senator Ted Kennedy and Representative George Miller, understood that the law could not succeed without major increases in federal funding. These Democratic leaders made an historic deal with the Republican president, George W. Bush, agreeing to the accountability measures that he favored in return for a commitment to a funding increase that might allow the nation’s schools to achieve these ambitious results. Accordingly, NCLB authorized a huge increase in basic Title I funding (almost 100% over five years), and, in the first year, Congress appropriated an overall NCLB increase of nearly $4 billion. In later years, however, Congress did not keep these funding commitments, and, in inflation-adjusted terms, actual Title I appropriations today are far below the original NCLB authorization level.

By comparison, ESSA authorizes minimal 3% annual Title I increases for the next few years, and, of course, it is not clear that Congress will appropriate even those amounts. (NCLB-related funding has been flat for most of the past few years.) The law does include two new provisions that deal with equity in funding. The first requires improvement plans for “targeted” schools (the 5% lowest performing schools in each school district) to include provisions that identify and address resource inequities, which may include a review of the local school district’s school-level budgeting allocations. The second authorizes a competitive grant program that will allow 50 local school districts throughout the country to consolidate most of their federal and state funds in order to create a single school-funding system based on weighted per-pupil allocations for students grappling with poverty or other disadvantages. Although these programs may lead to more equity in the allocation of intra-district funding in the small number of school districts to which they apply, these so-called “equitable funding” provisions do not deal with the critical (and much larger) issue of whether these districts-and all other districts in their respective states-are presently receiving adequate state-level funding.

The numerous legal challenges that have been mounted against states throughout the nation in recent decades have dramatically demonstrated a huge gap in virtually every state between existing state appropriations for education and the funding levels needed to provide students, especially ELLs and those living in poverty, with meaningful educational opportunities. Several years ago, I served on the National Equity and Excellence Commission, which Congress created to deal with this issue. The Commission’s 2013 report [add link] advised Congress on how to assure adequate and equitable state funding for education. Its proposal, endorsed unanimously by its bipartisan members, recommended that the federal government “[d]irect states, with appropriate incentives, to adopt and implement school finance systems that will (1) provide a meaningful educational opportunity for all students, along with appropriate budgetary and other frameworks to ensure the effective and efficient use of all funds to enable all students to achieve state content and performance standards . . . and (2) demonstrate progress toward implementing such a school finance system.”[1] In enacting ESSA, Congress totally ignored this recomendation. Unless and until such a provision is included in ESSA, Congress’s intention that “Every Student Succeeds” will remain wishful thinking.

 

Michael A. Rebell is professor of law and educational practice and executive director of the Campaign for Educational Equity at Teachers College, Columbia University. He is coauthor (with Jessica R. Wolff) of Moving Every Child Ahead: From NCLB Hype to Meaningful Educational Opportunity (2008) and co-editor (with Jessica Wolff) of NCLB at the Crossroads: Reexamining the Federal Effort to Close the Achievement Gap (2009).

[1] U.S. Department of Education (2013). For Each and Every Child–A Strategy for Education Equity and Excellence. Washington, DC.

Governor Cuomo’s Budget Proposal Falls Short

Governor Andrew Cuomo raised expectations when he said in his State of the State and budget address, “Let’s make a big change.”  His budget proposals for education, however, fall far short of the change students’ need. For 2016-17, the governor would increase basic school operating funds only $457 million, about 25% of what the state education department said schools need for next year—and less than half of the increase the legislature appropriated last year. This amount covers foundation aid plus some reduction in the gap elimination adjustment (GEA), a small amount of which would continue for another year.

Cuomo packaged his total proposed FY 2017 school-funding increase as providing $1.4 billion, a 6.1% increase over last year, but this is highly misleading. About $400 million would reimburse school districts for monies already spent for items like transportation and school buildings. And over $400 million would go to non-public schools. At a time when the public schools continue to be denied adequate state aid, the governor is proposing to spend $120 million for scholarships and tax credits to allow some students to attend private schools and to increase aid to non-public schools by $300 million to reimburse them for “state-mandated activities.”

Cuomo’s proposal badly neglects the actual needs of New York State’s public school students. In 2007, following the Campaign for Fiscal Equity (CFE) decisions, the state calculated the actual cost of providing students throughout the state the “opportunity for a sound basic education” that the courts had held to be their constitutional right. That amount was approximately $5.5 billion, and the legislature committed to increasing state foundation aid by that amount over four years. This year will mark the tenth anniversary of the final CFE decision, and New York students are still waiting for full constitutional funding.

The state provided substantial increases in 2007 and 2008, but, once the recession hit, the governor and the legislature first froze and then slashed education aid. They did this despite that, as a matter of law, state financial constraints cannot justify the denial of a constitutional right. At present, with inflationary increases, the shortfall in foundation aid is over $4.8 billion. This means that the governor’s school-funding increase would cover only 10% of the current deficit.

To make matters worse for students and schools, the governor and the legislature have also imposed a cap on the amount school districts (other than New York City and the other “Big Five” urban districts) can raise local property taxes for school-funding increases. That cap this year will allow virtually no local tax increases for most districts. This means that citizens willing to tax themselves at higher rates to compensate for the state’s continuing failure to fund their schools adequately will not be able to do so.

The only bright spot in the governor’s state aid proposal was his recommendation for $100 million to allow the state’s lowest performing schools to become “community schools.” This amount is not likely to allow these schools to provide the full range of comprehensive services that their students need — especially with the low foundation the amounts the governor would allow them. However, it does represent some recognition from a governor who has long supported charter-school expansion and the funneling of public funds to private schools that poverty affects students and schools. For many students living in poverty, access to health care, counseling, expanded learning opportunities, and family engagement are necessary for a meaningful educational opportunity.

Fortunately the governor’s executive budget is just a proposal. The state legislature must act on it. In past years, our legislators have provided substantially more state aid for education than the governor recommended. This year he has given them an even bigger job to do.

In Memoriam: Judith Kaye – Champion of Educational Equity

By Michael A. Rebell

Advocates for educational opportunity for all students, as well as the legal world, suffered an enormous loss when Judith Kaye, former Chief Judge of the New York Court of Appeals, passed away last week at the age of 77. Judge Kaye was both the state’s longest-serving chief judge and the first woman to hold that role. Over her long tenure on the court, she issued dozens of decisions that advanced civil liberties and human rights.

Judge Kaye also brought about decisive reforms in New York State’s jury system because she thought it was important for all citizens, including lawyers, doctors, mothers, and mayors, to take part in this basic civic experience. I’ve thought of her every time I’ve been called to jury duty, both because she believed, as I do, that personal participation in this critical democratic process makes you a better citizen, and because, as a court administrator, she made jury service in this state both efficient and ennobling.

But, to me and many other New Yorkers concerned with educational equity, Judith Kaye will forever be known for her towering achievement as the author of the major decision in the Campaign for Fiscal Equity school-funding case. She was the jurist who declared that every child in the State of New York has a constitutional right to a meaningful opportunity for a sound basic education, one that will prepare him or her to be a capable citizen and a productive worker. She also strongly dissented in a later decision when some of her colleagues sought to minimize the amount of funding that this right requires.

In our formal encounters when she sat on the bench and our informal conversations after she retired, Judge Kaye’s sincerity and commitment to children’s well-being impressed me deeply. Oral argument in a high appellate court is often a game in which judges try to probe lawyers’ arguments to trip them up or reveal their weaknesses. The hearings in CFE at which Judge Kaye presided were different. She asked insightful questions designed to understand how the court could best promote children’s educational rights. When her colleagues pointed out problems that had arisen with the implementation of remedies in education-adequacy cases in other states, Judge Kaye delved further: “Tell me, Mr. Rebell,” she asked, “how can we avoid those problems if we uphold these rights in New York State? From all of your research with these other states, what do you think can work here and what can’t?”

The remedy that she devised in CFE v. State did work—until the 2008 recession came and New York State’s lawmakers largely abandoned it. I met with Judge Kaye less than a month ago, and she expressed sadness that the State was not following through on the CFE remedy. She was particularly interested in helping me think through an issue the Campaign for Educational Equity at Teachers College is currently pursuing: How can courts ensure that states and schools fulfill the basic purpose of education (emphasized by the New York Court of Appeals and almost two dozen other state courts) to prepare students to function productively as civic participants. She offered to help us organize a conference on this subject and to invite a number of her judicial colleagues to participate. We still plan to convene that conference, but, sadly, it will now be in her memory and not with her active participation.

Michael A. Rebell is professor of law and educational practice and executive director of the Campaign for Educational Equity at Teachers College, Columbia University. He was co-counsel for the plaintiffs in Campaign for Fiscal Equity, Inc. (CFE) v. State of New York.