Fact Sheet: Foundation Aid and the Requirements of the Campaign for Fiscal Equity Decision

Governor Andrew Cuomo, in a speech laying out his 2019 legislative priorities, has called the 2007 Foundation Aid formula and the Campaign for Fiscal Equity (CFE) lawsuit “ghosts of the past and distractions from the present.”

That statement is incorrect. Here are the core facts:

1. In 2003 and again in 2006, the Court of Appeals, the state’s highest court, held that the state’s education-funding system then in effect was unconstitutional.

2. To remedy the constitutional defects, the Court held that the State must “align funding with need,” and that, in order to do so, it must determine “the actual cost” of providing the opportunity for a “sound basic education” and ensure that “every school” has sufficient resources to provide such an opportunity.

3. Former Governor Eliot Spitzer, who was in office at the time the Foundation Aid formula was adopted, described the process and his intent and that of the legislature at the time as follows: 

The Foundation Aid formula was proposed and enacted as a direct result of the CFE litigation. As contentious as school funding debates had often been, there was agreement that Foundation Aid was a principled and constitutionally mandated step forward. The Republican Senate majority said the Foundation Aid formula fulfilled “the mandate of the Court of Appeals decision in CFE vs. The State of New York,” and the Democratic Assembly leadership said it “addresses the court-ordered requirements of the Campaign for Fiscal Equity lawsuit.”
The new formula responded to the Court of Appeals’ order that the state “align funding with need” based upon the “actual costs” of providing a “sound basic education.” The new Foundation Aid formula calculated these actual costs and recognized that the programs and services needed by students who are economically disadvantaged, those with disabilities, and English language learners are often more costly. 

4. The Foundation Aid formula was intended to be phased in over a four-year period, beginning in 2007. It was appropriately funded in 2007-08 and 2008-09; however, following the 2008 recession, the State first froze further increases and then drastically reduced the amount of education funding, ignoring the requirements of the Foundation Aid formula.

5. Since Gov. Cuomo took office, the State has been increasing education funding on an ad hoc, year-to-year basis, while continuing to ignore the specific requirements of the Foundation Aid formula.

6. At the present time, the gap between current levels of state aid and the amounts called for by the Foundation Aid formula is approximately $4 billion.

7. The Foundation Aid formula is still on the statute books (Ed. Law § 3602). No alternative formula that would meet CFE requirements has been adopted by the State, and the Governor and the Legislature are still legally obligated to provide the full funding amounts called for by the Foundation Aid formula.

8. The State’s failure to fund the Foundation Aid formula fully has led individual parents from New York City and school districts around the state, as well as a number of major statewide educational organizations, to file a new lawsuit, New Yorkers for Students’ Educational Rights (“NYSER”) v. State of New York. The NYSER case (www.nyser.org) is now pending in the State Supreme Court, New York County.

9. In 2017, rejecting the State’s motion to dismiss the NYSER case, the Court of Appeals made clear that the CFE requirements are still very much in effect and that they will be enforced by the courts:

Our CFE decisions establish that “[t]here is a constitutional floor with respect to educational adequacy . . . [and the courts] are responsible for adjudicating the nature of [the duty to provide a sound basic education].

NYSER v. State of New York, 29 N.Y. 3d 501, 505 (2017).

10. In its 2017 decision, the Court sent the case back to the lower court for a trial that will allow the NYSER plaintiffs to present evidence as to whether the current amounts of state aid are insufficient to provide students in New York City and other districts throughout the state the opportunity to a “sound basic education” to which they are entitled under the state constitution. The parties are now preparing for the trial.

11. The evidence in the NYSER case may establish that even more than the amounts called for by the 2007 Foundation Aid formula are required in 2019 to meet current constitutional requirements; however, pending a final decision from the Court of Appeals, the State is required to provide the amounts of funding called for by the 2007 Foundation Aid formula, the only formula it has ever adopted that was calculated in accordance with the constitutional mandate to base state aid on the “actual cost” of providing all the students the opportunity for a sound basic education.

The views and conclusions expressed here are those of the Center for Educational Equity and do not necessarily reflect those of Teachers College.