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.

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.

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.