N.Y.’s School Equity Grade: Incomplete

By: Michael A. Rebell

The New York State Legislature did something extraordinary for schoolchildren last week: It committed to increasing state education aid by $4.2 billion over the next three years to honor the pledge the state made in 2007 to fully fund the Foundation Aid formula enacted in response to the Campaign for Fiscal Equity (CFE) litigation, which I helped lead.

This is potentially historic. Together with billions in federal stimulus aid the schools will be receiving during this period, the new resources should put schools in a position to deal with the profound learning loss, emotional trauma and other setbacks students have suffered during the pandemic. These funds also should position New York City and other high-need school districts to allocate sufficient resources to offer the hundreds of thousands of students with special needs the counseling, bilingual education, special education, tutoring and other supports they are entitled to under state law but have been denied because of funding shortfalls. Moreover, these funds should allow the state to close resource gaps so students in lower-wealth school districts can benefit from class sizes, educator expertise, curricular offerings, enrichment activities and technology that approach what their peers in affluent districts receive.

As co-counsel for the plaintiffs in the CFE case, I am delighted that the state government has renewed the commitment it made so many years ago, and the long-overdue payoff has begun. But I am also plagued by a sense of déjà vu.

In 2007, the Legislature committed to phasing in, over a four-year period, the full $7 billion increase called for by the Foundation Aid formula. That formula was based on a needs-based calculation the state Education Department did in 2006 to determine the number of dollars required to provide all students the opportunity for a sound basic education — which is their right under the state Constitution as determined by the Court of Appeals, New York’s highest court, in CFE.

The state government kept its promise to its schoolchildren for only the first two years. Then the 2008 recession hit; in its wake, the state first postponed further increases, and then, when the federal stimulus aid of that era ran out, New York State cut school aid substantially. We’ve been playing catch-up to try to close resource gaps ever since. That’s why, at the present time, with inflation and other adjustments, approximately $4 billion is still owed to New York’s schoolchildren under the Foundation Aid formula.

I hope the state will keep its newly renewed commitment to fully fund Foundation Aid over the next three years. The first installment of the three-year commitment has now been appropriated, and it will be paid. But I worry about the installments due in years two and three. Actual budgetary appropriations are made on an annual basis. I believe the members of the Assembly and Senate made this three-year commitment in good faith and intend to honor it. But political winds can shift rapidly. As Yogi Berra said, “It ain’t over ‘til it’s over.”

As it happens, Attorney General Tish James can quickly end worries that students will be again shortchanged. The state’s past failure to fully fund Foundation Aid led students, parents and many city and state education and advocacy groups several years ago to initiate a new lawsuit for fair school funding, New Yorkers for Students’ Educational Rights (NYSER) vs. State of New York. That case is now awaiting trial in the state Supreme Court. The attorney general, as counsel for the defendants, should settle the case by agreeing to include the state’s three-year commitment to fully fund Foundation Aid in a court-ordered stipulation. That way, the funding will be guaranteed.

A court settlement should also include another key provision: mechanisms for permanently ensuring on a current basis the funding levels needed to provide all students their right to the opportunity for a sound basic education. The cost study the state Education Department undertook to develop the current Foundation Aid formula is now 15 years old. A lot has happened in the past 15 years: major demographic shifts, a reckoning with structural racism, new state mandates, new technologies and new concepts for promoting cost-effective use of educational funds. The state should now undertake a new cost study in a fair, objective and transparent manner to identify student needs and resource requirements in the post-pandemic era. A mechanism for assuring that such cost studies will be done periodically in the future should also be included in a court-ordered stipulation.

We’re on the cusp of education equity in New York. But we’re not there yet. To quote Yogi Berra one last time, we’re at a fork in the road; the attorney general needs to take it.

Rebell, a professor at Teachers College, Columbia University, is the Executive Director of The Center for Educational Equity, was co-counsel for plaintiffs in CFE and is currently co-counsel for plaintiffs in the NYSER case.

This op-ed was originally published by the Daily News on April 13, 2021.

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