Students’ Constitutional Rights Are Obligatory, Not “Symbolic” or “Aspirational”

By Michael Rebell

Paul Francis, deputy secretary for health and human services under Gov. Andrew Cuomo, wrote in an op-ed in yesterday’s N.Y. Daily News that the objections that public-school parents, education-law scholars, and advocates have lodged to the governor’s ongoing failure to fund our state’s public schools adequately—and his recent proposal to eliminate the state’s constitutionally required foundation-aid formula—are based on “misinformation and distortions that would be laughed out of any competent classroom.” I don’t know what classrooms Francis has been visiting lately, but I do know that the state courts do not consider the allegations of violations of students’ rights under the education article of the state constitution to be a laughing matter. In fact, in the case New Yorkers for Students’ Educational Rights (NYSER) v. State of New York, the seriousness of these charges has been upheld by two state courts and will be considered this spring by the Court of Appeals, New York’s highest court.

In Campaign for Fiscal Equity (CFE) v. State of New York, a landmark decision issued in 2003, the Court of Appeals held that every child in New York State is entitled under Article XI of the state constitution to “the opportunity for a sound basic education.” The legislature adopted a foundation-aid formula in 2007 to distribute education funding more fairly in order to comply with the court’s decision. Francis, however, appears to believe that the court’s CFE ruling is merely “symbolic” and has no lasting significance. This view is apparently shared by Governor Cuomo, who has suggested that the foundation-aid formula is “aspirational” and that he therefore need not make an effort to provide the additional $4.3 billion that the state’s schoolchildren are owed under the formula. Instead, in the executive budget proposal he issued last week, the governor has asked the legislature to erase the requirement to adhere to the foundation formula from the state’s statute books.

Francis was the former budget director for Governor Eliot Spitzer, who originally proposed the foundation-aid formula, and, for that reason, he says that he “would know… the facts.” He may know what the formula requires (which is not actually in dispute), but he clearly does not know the law. As co-counsel for the plaintiffs throughout the CFE litigation, I do know what the court actually said and what it means for public school students in New York State.

CFE was not a ruling issued solely to remedy the inadequate funding levels the court found in the New York City public schools at the time of the trial. Like other major pronouncements on constitutional rights, the CFE opinions were definitive and highly significant proclamations from the state’s highest court that articulated precisely the state’s enduring obligations to its schoolchildren. They outlined students’ rights, not just for 2003, but for as long as the education article of the state constitution remains in effect.

The court determined that annual state aid for education had for decades been determined without regard to actual student needs but through political wheeling and dealing by “three men in a room” (the governor and the leaders of the state senate and the state assembly). The court held that future state funding for education must be determined systematically in a way that would “align funding with need.” Specifically, the court held that the State must

(1) “ascertain the actual cost of providing a sound basic education;” (2) [ensure] that every school … would have the resources necessary for providing the opportunity for a sound basic education;” and (3) “ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education.

The state complied with these requirements in 2007 when it enacted a Budget and Reform Act in order to, as the Assembly Education Committee put it at the time, “satisfy the requirements of the CFE court decision.” Recognizing that the funding deficiencies that the Court of Appeals had found in regard to New York City also applied statewide, the 2007 reforms were enacted, in Governor Spitzer’s words, to “provide a statewide solution to the school funding needs highlighted by the Campaign for Fiscal Equity Lawsuit.”

Paul Francis, working for the current governor, is now trying to minimize the significance of the 2007 Reform Act by spinning a simplistic and erroneous summary of what the Court of Appeals did in 2006 when an impasse had developed between Governor George Pataki and the legislature on complying with the court’s order to determine the “actual cost” of providing a sound basic education. Francis claims that, at that time, the Court of Appeals merely “codif[ied] a study by a special commission appointed by Gov. George Pataki recommending funding for New York City schools be increased by an additional $1.9 billion from combined state, federal and local sources.” Since, according to Francis, that amount of increased funding has now been paid out, nothing more is required.

In fact, however, in 2006, the Court of Appeals made clear that it was the responsibility of the governor and the legislature, and not of the court, to determine the actual costs of providing the opportunity for sound basic education to all New York students, based on students’ needs. The Court ordered the governor and the legislature to act during the next legislative session to overcome their impasse and to determine an actual cost level within a range of $1.9 billion and $5.63 billion (a figure that stemmed from the range of cost studies that the lower courts had reviewed). Governor Spitzer and the legislature did overcome the executive-legislative impasse, and, in doing so, adopted the foundation-aid formula that calculated a significantly greater weight for the needs of students living in poverty and English language learners than Governor Pataki had proposed. The result was a number much closer to the high end of the court’s designated range, rather than the low end that Governor Pataki had advocated.

For the first two years after adopting the 2007 plan, the state largely adhered to its commitment to phase-in the increases called for by the foundation formula over a four-year period. Following the recession of 2008, however, the state defaulted on its commitments and, beginning with the 2009-10 school year, has failed to provide school districts throughout the state the amount of state aid it had itself determined to be necessary to meet its constitutional obligation to fund schools fairly and adequately. During the recession years, state officials essentially conceded that their failure to provide the full amount of increased funding called for by the foundation formula was, in fact, denying children their constitutional rights. They explained that the amounts they were withholding constituted a temporary “gap elimination adjustment” that was necessitated by the demands of the recession. Once the economy recovered, this implied, they would reinstate the constitutionally mandated funding phase-in.

This “gap elimination adjustment” was itself unconstitutional because, as the courts have repeatedly held, constitutional rights cannot be put on hold because of a recession or state fiscal constraints. Now that the economy has revived, Governor Cuomo’s disregard of the state’s obligation to New York’s children is both unconstitutional and unconscionable.

The decisions the state made in 2007 to achieve constitutional compliance are not, of course, written in stone and the state could adopt a new plan for constitutional compliance that responds to changes in educational requirements and students’ needs that have occurred over the past decade. However, if the state wants to revise and update the foundation-aid formula, it must do so in a manner that complies with constitutional requirements.

Any formula changes must be based on a valid, current study to determine what is the “actual cost” of a sound basic education and to determine what revisions are needed in the distribution of funding to the school districts in order to ensure that all schools throughout the state have sufficient resources to provide all their students a meaningful educational opportunity. The state has not undertaken any such analyses and, until and unless it does, the existing foundation-aid formula stands and must be honored.

The governor’s call to abandon the foundation-aid formula and revert to the discredited “three men in a room” deal-making system for determining what the state will spend to prepare its students for their civic and economic futures is clearly unconstitutional. It must be rejected by the legislature—or, if need be, by the courts.

Governor Cuomo’s Budget Proposal Disregards Students’ Constitutional Rights

By Michael Rebell

The executive budget for the next fiscal year that Governor Andrew Cuomo issued last week flouts the constitutional right of all students in New York State to the opportunity for a sound basic education. It tramples students’ rights in two significant ways. First, the governor’s budget proposal would provide an increase of only $428 million in basic foundation aid for the schools, less than 10% of the current $4.3 billion gap between the amounts appropriated for the current year and the amounts called for in the foundation-aid formula the state adopted in 2007 to ensure fair and adequate education funding in response to the Court of Appeals’ decisions in the Campaign for Fiscal Equity (CFE) litigation. (The Regents had called for a $1.47 billion increase in foundation aid for next year and a commitment to eliminate the constitutional gap fully over the next three years.) Cuomo also calls for some tweaking of the formula that would aid high-need districts, but that slight benefit is more than outweighed by “hold-harmless” provisions that guarantee districts the same amount of money they received the previous year, whatever their actual needs, and a 1% minimum increase that will be provided for all districts, regardless of need.

Second, in an obscure maneuver that becomes apparent only when one reads the technical details of the budget legislation, the governor is proposing to eliminate the foundation-aid formula, effective in fiscal year 2019, and return the state to the ad hoc budget decision-making process that the Court of Appeals specifically held to be unconstitutional in its 2003 CFE opinion. In that decision, the court held that the state’s funding of public education must be based on the “actual cost” of providing students the opportunity for a sound basic education, one that prepares them for capable civic participation and competitive employment. Further the court said that state aid must be allocated on the basis of need and in a manner that ensures that every school has sufficient resources to provide the opportunity for a sound basic education to all of its students.

The foundation-aid formula adopted in 2007–which has not been fully funded since 2010–was developed through an extensive process that identified the actual cost of providing all students throughout the state the opportunity for a sound basic education, and established a largely equitable method for distributing aid to schools in accordance with relative need. Arguably, elements of the current foundation aid formula may be out of date and in need of revision. However, to change the current formula in conformance with constitutional requirements, the state would need to institute a new cost analysis to determine actual current costs and develop a new, equitable distribution formula. It cannot revert to determining educational allocations through political deal making, with no regard for the adequacy of funding levels or relative student need.

Cuomo packaged his total proposed FY 2018 school-funding budget as providing an increase of approximately $1 billion (or 3.9% more than last year), but this is highly misleading. About $333 million of his proposed “increase” would reimburse school districts for monies already spent for transportation and school buildings. The budget proposal also calls for $35 million in increases for after-school programs, $5 million for early-college high schools, and $22 million in charter-school reimbursement funds to school districts. The relatively small amounts provided for these programs, though desirable, should be added to the foundation-aid appropriations; setting them out as categorical spending requirements is inconsistent with the courts’ admonition that the education funding system should not be “needlessly complex.” The proposed budget also includes an unexplained $150 million “Fiscal Stabilization Fund,” which not only diverts funding from the need-based formula, but also sidesteps government transparency and accountability.

The governor’s budget proposal fails to respond to the Regents’ important call for a $100 million increase in programs for English language learners. It also fails to fulfill the commitment he made two years ago to offer a full-day universal prekindergarten program to all four year olds in New York State. This year’s executive budget provides $340 million for that program, the same amount as last year and the year before, allowing no room for expansion of the program. As in years past, $300 million will be allocated to New York City and $40 million will be available to the rest of the state. These sums may be sufficient to maintain New York City’s universal full-day pre-K program, but they are grossly insufficient to provide comparable opportunities for students in the rest of the state. The governor has also failed to consolidate six other small competitive grant programs for pre-K into the universal pre-K program, a move that would aid transparency, planning and equity; he did, however, propose a small ($5 million) increase for full- and half-day programs for three and four year olds in high-need districts.

Fortunately, the governor’s executive budget is just a proposal. The state legislature must respond to it. In past years, our legislators have provided substantially more state aid for education than the governor recommended, though still not the amounts needed for constitutional compliance. In addition, the Court of Appeals recently agreed to hear an appeal in the New Yorkers for Students’ Educational Rights (NYSER) v. State of New York litigation. Plaintiffs in that case will ask the court to clarify the state’s responsibilities in regard to compliance with the state constitution’s sound-basic-education requirements and the court’s CFE rulings.

CBC Report Highlights Foundation Formula Inequities

By Michael Rebell

cbcnycThe Citizens Budget Commission (CBC)  released a report December 2016 that argues that the legislature could fully implement New York State’s foundation formula to provide full funding for high need districts with only a total increase of $569 million in state funding, in contrast to the almost $4 billion that many advocates are calling for to fully fund the state’s foundation formula. The foundation formula was adopted by the state in 2007 in the wake of the CFE decisions, but has not been fully funded by the state since the 2008 recession.

The foundation formula largely adhered to the Court of Appeals’ directive that state education funding must be responsive to student need; it provided substantial increases for students in New York City and other high need districts throughout the state. At the same time, however, according to the CBC, the formula  included a number of hold harmless provisions, arbitrary floors, ceilings, phase-ins and add-ons that distort final funding distributions. In addition, inconsistent local share calculations do not uniformly and fairly account for a district’s ability to pay, and outdated measures of poverty understate or overstate need in many districts. It is by eliminating these aspects of the formula that inequitably benefit low wealth districts that full funding could be provided to high need districts at a relatively modest additional cost to the state, according to the CBC.

A copy of the full CBC report can be found at