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.