With the election behind us, our representatives in Albany turn their attention to planning for the 2023 legislative session. Their first priority should be to agree on a path forward to replace New York’s badly out-of-date school funding formula and find a permanent, systematic way to ensure our students’ educational rights are honored year in and year out.

New York needs a more equitable state funding formula for its public schools that meets current needs. The current formula for distributing state aid to schools, the Foundation Aid Formula, has been in place since 2007, and finally will be fully paid out in 2024. It needs to be replaced with a new model that corrects its defects, accounts for new needs, and would guarantee adequate and equitable funding beyond 2024.

Some schools, including those in New York City, are facing likely state funding cuts due to declining enrollment, and the termination of federal post-pandemic aid in 2025. Historically, New York State contributes between 40 and 50 percent of state education funding. Many critical needs like support for students in temporary housing, post-pandemic learning loss, and technology gaps are not considered by the current formula. Major aspects of its methodology, like the mechanism for calculating the number of students living in poverty in each school district and regional cost of living indices, are totally out of date.

The state must begin planning immediately for a fair new funding system. The process must be insulated from undue political influence, and it must respond to the experience of education stakeholders, the people most affected by inequities and inadequacies.

We call for the immediate establishment of a permanent, independent commission set up and to monitor the implementation of the new funding formula. (Read our proposal here.) The commission would also recommend modifications as necessary to ensure that the formula stays current and at all times meets the state’s obligation under the state constitution to offer all students the opportunity to obtain a sound, basic education.

To propose a new formula for the 2024-25 fiscal year, the commission needs to be established early in 2023, and its recommendations prepared and presented to the governor and the legislature by December 2023.

Our proposal for a new funding agreement and a permanent commission to oversee it are the next logical steps in the decades-long struggle to require New York State to fairly fund public schools. In 2003, in the CFE litigation, the New York Court of Appeals held that the state was not in compliance with its own constitution, which requires that the state provide adequate, equitable funding to ensure that every child receives a “meaningful opportunity” to obtain a “sound, basic education.”

To implement the court’s order, in 2007, the governor and legislature adopted the Foundation Aid Formula. That formula was based on a cost study undertaken by the state education department in 2006. Plaintiffs and most parent, education, and advocacy groups agreed that the $7 billion in extra funding promised by the new formula was a reasonable estimate of the actual costs needed to meet student needs throughout the state. Although the promised increases were supposed to be phased in over a four-year period, because of the 2008 recession and political impediments in the years following, the promised increased funding levels still have not fully been reached, 16 years later.

Two years ago, the governor and the legislature committed to pay out the remaining increases promised by the current Foundation Aid Formula over a three-year period. The state is scheduled to make the final payment on that agreement in 2024. But even as that chapter closes, the original Foundation Aid Formula is outdated and no longer complies with the state’s constitution.

In the 16 years since the current formula was adopted, New York has seen many changes in demographics, school policies, and state education mandates, creating many new resource inequities and inadequacies. These must be remedied to ensure all schools are fairly and adequately funded and students’ constitutional right to a sound basic education is honored in 2024 and the years to come.

Our proposal calls for a 15-member commission whose members would be appointed by the governor, the legislative leaders, and the commissioner of education, as well as by representatives of the major education and professional organizations, business leaders, advocacy groups, and parents. The commission would calculate the current cost of providing all New York students the opportunity for a sound basic education based on expert analyses, studies of successful practices and stakeholder input and suggest a comprehensive, new funding formula that would provide adequate resources for all students throughout the state. It would also monitor and propose periodic modifications to the funding formula and provide guidance and stability for effective, cost-efficient educational programming and planning.

With a permanent commission in place, parents and students won’t have to resort to litigation to ensure students’ educational rights are fulfilled in years to come.

On November 4^th, in a stunning 227-page decision, the North Carolina Supreme Court ordered the state controller and other state officials to transfer approximately $800 million from state budget reserves to the state educational budgets to fund a comprehensive compliance plan in the long-pending Leandro litigation.The decision comes after the state legislature refused to appropriate the full amount required to implement the second and third years of the eight-year phase-in of the compliance plan.

The 1997 Leandro case affirmed NC students’ constitutional right to the opportunity for a sound basic education and recognized the duty of the state government to provide adequate funding to guarantee that right to all students.

In its 4-2 decision on Friday, the state supreme court refused to permit further delay in fully vindicating the state students’ constitutional right. It remanded the case to the trial court to recalculate the exact amount of funds required for the transfer and ordered that the trial court to retain jurisdiction to ensure that the plan is fully implemented in the years to come.

The court stated the significance of the case in potent language:

A quarter-century ago, this Court recognized that the North Carolina Constitution vests in all children of this state the right to the opportunity to receive a sound basic education and that it is the constitutional duty of the State to uphold that right. Leandro v. State, 346 N.C. 336, 345 (1997). … In 2004, we affirmed the trial court’s determination “that the State had failed in its constitutional duty to provide certain students with the opportunity to attain a sound basic education,” and that “the State must act to correct those deficiencies.”… At that still-early stage of the litigation, this Court deferred to the legislative and executive branches to craft and implement a remedy to this failure.

In the eighteen years since, despite some steps forward and back, the foundational basis for the ruling of Leandro … has remained unchanged: today, as in 2004, far too many North Carolina schoolchildren … are not afforded their constitutional right to the opportunity to a sound basic education. …

Now, this Court must determine whether [the state’s constitutional] duty is a binding obligation or an unenforceable suggestion. We hold the former: the State may not indefinitely violate the constitutional rights of North Carolina schoolchildren without consequence. Our Constitution is the supreme law of the land; it is not optional. In exercising its powers under the Appropriations Clause, the General Assembly must also comply with its duties under the Education Provisions.

Rejecting the legislature’s separation of powers objections, the court held:

[W]hen inaction by those exercising legislative authority threatens fiscally to undermine the integrity of the judiciary, a court may invoke its inherent power to do what is reasonably necessary for the orderly and efficient administration of justice.”… Although “Article V prohibits the judiciary from taking public monies without statutory authorization [,]” when the exercise of remedial power “necessarily includes safeguarding the constitutional rights of the parties [,] … the court has the inherent authority to direct local authorities to perform that duty. …

For our Constitution to retain its integrity and legitimacy, the fundamental rights enshrined therein must be “guarded and maintained.” When other branches indefinitely abdicate this constitutional obligation, the judiciary must fill the void.

This forceful order reminds us that, at a time when the U.S. Supreme Court seems bent on abolishing or reducing important constitutional guarantees, state courts can play a critical role in upholding and fully enforcing important constitutional rights.

^{Note: The Center for Educational Equity helped draft the brief, amicus curiae, of the “Professors and Long-Time Practitioners of Constitutional and Educational Law” that was submitted in support of the plaintiffs’ position on this appeal.}