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.