New York Needs a New State Aid Formula and a Commission To Ensure Future School-Funding Equity and Adequacy

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 Their first priority should be to agree on a path forward to replace New York’s badly out-of-date school funding formula and find a permanent, systematic way to ensure our students’ educational rights are honored year in and year out.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the number of students living in poverty in each school district and regional cost of living indices, are totally out of date.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.

North Carolina Supreme Court Issues Blockbuster School-Funding Decision

On November 4th, 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.

Plaintiffs in Cook v. McKee and State Reach Agreement on Improving Civic Education in Rhode Island

The plaintiffs in the class action lawsuit, Cook v. McKee, and the State of Rhode Island have reached an agreement on improving civic education. The Cook plaintiffs, joined by Rhode Island Education Commissioner Angélica Infante-Green, announced on June 10th that the Rhode Island Department of Education will establish a Civic Readiness Task Force and a state diploma seal project, in conjunction with the plaintiffs in Cook v. McKee, and take other actions to improve the quality of civic education in Rhode Island.

Cook v. McKee is a class action suit against the State of Rhode Island, in which a group of Rhode Island students alleged that the State had deprived them of their rights under the United States Constitution to an education that would properly prepare them to become capable civic participants. As a result of these agreements, plaintiffs will not file a petition for certiorari to the United States Supreme Court that would seek to appeal the dismissal of their suit by the United States Court of Appeals for the First Circuit.

Commissioner Infante-Green said, “Civic education is vital for our students and for the maintenance of our American democracy. I thank these students for keeping their elders focused on the importance of civic education, especially in these times.”

Michael A. Rebell, lead counsel for the plaintiffs, and a professor of law and educational practice at Teachers College, Columbia University, added, “The purpose of this lawsuit has been to spur positive action on improving civic education in Rhode Island. We are pleased that the Commissioner is taking these steps, and we hope that other states will be inspired by her example to prioritize civic education.”

The Diploma Seal of Civic Readiness will be awarded to graduating high school seniors who have achieved high degrees of civics proficiency and completed a capstone project involving both research and active community involvement. Rhode Island will also establish a civics award program school districts can use to recognize middle school students who have demonstrated outstanding progress in civic readiness.

According to the agreement, the Commissioner will appoint the Civic Readiness Task Force of up to 15 members by September 1. It will be staffed by the Department of Education and include students, educators, parents, community members, and advocacy organizations, as well as some of the plaintiffs in the lawsuit and their attorneys.  

Mealaktey Sok, a plaintiff in the case who was in high school when the case began, said, “Youth are not only the leaders of the future, but also the leaders of today. Investing in youth and equitable access to education, is to also invest and optimize the possibilities of tomorrow. And this starts with students being at the decision-making table. I am excited to see the changes and conversations that will take place through the Task Force. I am honored to play a part in bringing this lawsuit and improving education in Rhode Island for generations to come.”

The Task Force will advise the Commissioner on issues such as:

  • The advisability of adding a half credit course in civics in grade 8 and one in high school that would focus on media literacy, so students can learn to effectively utilize the internet and social media;
  • Providing school districts with methods and resources to support students in how to have respectful conversations on controversial issues with individuals having different views from their own, to be shared with LEAs;
  • Providing districts with resources for instruction about voter registration;
  • Implementation of the Commissioner’s Diploma Seal of Civic Readiness for high school graduates and civics award program for middle school students;
  • Development of a specific definition of “civic readiness” – to include civic knowledge, civic skills (including media literacy skills), civic experiences, and civic mindsets – and the manner in which this definition should be officially prescribed by the Rhode Island Department of Education:
  • Implementation of the requirement in the 2021 Civic Literacy Act that every school district provide one student-led civics project for students during either middle or high school;
  • Development of recommended methods for school districts to assess the proficiency and progress of students in civic readiness.

The Task Force will be expected to submit an initial report and recommendations to the Commissioner by March 31, 2023.   

Learning from Research about Preparing Students for Civic Participation 

One of the most exciting events in the last few weeks was a dynamic webinar co-hosted by the Center for Educational Equity and CivXNow, entitled Civic Education: Essential for Sustaining American Democracy. Featuring four leading civic-education researchers and scholars—David Campbell, Kei Kawashima-Ginsberg, Meira Levinson, and Jane C. Lo—and moderated by Rashid Duroseau of Democracy Prep Public Schools, the discussion highlighted the importance of civic education for promoting civic engagement in young people—as well as the challenges educators face in a highly polarized political climate to prepare and empower their students, especially their students of color.

Preparing all students for civic and political participation is the foundation of the right to education in New York and many other states, and we believe it is the most important motivation for the fight for educational equity today. The webinar was both a call to action for the essential work to be done in civic education, and a discussion of what the research reveals about the state of civic education and what kinds of interventions and strategies have proven effective.

Shawn Healy, senior director of state policy and advocacy at CivXNow, began the program by laying out alarming statistics about the state of civic knowledge and civic education today. As the numbers make clear, not only has a basic understanding of the American governmental system eroded, so too has public confidence in our democratic institutions, fueling increased political polarization. Alongside the decades-long reduction in emphasis on and funding for social studies and civics in schools, and the more-recent culture wars taking hold at school board meetings and in the classroom, the crisis of civic education and civic engagement constitutes an existential threat to our democracy.

Much of the panelists’ discussion centered on research-based ideas for addressing these challenges. David Campbell, the Packey J. Dee Professor of American Democracy at the University of Notre Dame, talked about the importance of school ethos and culture to civic participation, and particularly of exposing students to real politics and political discussions in the classroom. Kei Kawashima-Ginsberg, the Newhouse Director of CIRCLE at Tufts University, emphasized the data that spoke to the effectiveness of increasing the turnout of young people to the polls through interpersonal encouragement to vote and nonpartisan instruction that highlights the importance of voting for sustaining democracy. Her research also spoke to the importance of teaching media literacy in schools.

Jane Lo, assistant professor of teacher education at Michigan State University, highlighted the effectiveness of meaningful, relevant civic experiences for setting students up for political engagement, and their power for helping students of color see that the future of our governmental system depends on them. Building on these ideas, Meira Levinson, the Juliana W. and William Foss Thompson Professor of Education and Society at the Harvard Graduate School of Education, emphasized the importance of engaging young people in local civic and political issues, which are less polarized than national ones, and giving students the opportunity to practice and become effective at civic skills the same way they practice other skills learned in school, such as reading and math.

All panelists and presenters spoke passionately about the powerful opportunity civic education poses to help us expand individual democratic capacity and strengthen our democracy. Good civic education in the 21st century means more than just increasing knowledge: it means building skills, participating in meaningful experiences, and anchoring belief in democratic norms for all our students.

At the Center for Educational Equity, we believe that every child in America has a right to an education that prepares them for civic life, and that our nation needs its youth to receive a good civic education if our democracy is to survive. We hope you will join us in this mission.

If you missed Civic Education: Essential for Sustaining American Democracy, we encourage you watch it here.


Plaintiffs Plan to Appeal Cook v. McKee Civic Education Decision to U.S. Supreme Court

Yesterday, the U.S. Court of Appeals for the First Circuit affirmed the lower court’s dismissal of the attempt by 14 Rhode Island public-school students to ensure every student in Rhode Island and throughout the country learns the basic civic knowledge, civic skills, and civic values needed to maintain our democracy. The plaintiffs have now vowed to seek review of these constitutional issues by the U.S. Supreme Court.

The Appeals Court summarized its position as follows:

We conclude by echoing the district court’s observations in dismissing this case, that the students have called attention to critical issues of declining civic engagement and inadequate preparation for participation in civic life at a time when many are concerned about the future of American democracy.… Nevertheless, the weight of precedent stands in the Students’ way here, and they have not stated any viable claim for relief.

In response, Michael Rebell, lead counsel for the plaintiffs, professor of law and educational practice at Teachers College, Columbia University, and executive director of the Center for Educational Equity, said, “Like so many landmark civil rights cases before this, we have reached the pivotal moment where only the Supreme Court can clarify the meaning for our times of what it has previously written.”

“Both the District Court and Court of Appeals recognized the critical connection between civic education and the preservation of our republican form of government,” Rebell added. “However, the lower courts indicated that they lacked the authority to reconsider Supreme Court precedents that ‘stand in the students’ way.’ Only the Supreme Court can resolve the ambiguities in the case law regarding students’ rights to civic education. We look forward to making our case on behalf of all Rhode Island and U.S. public-school students before the U.S. Supreme Court.”

“The First Circuit’s decision articulated an extremely low bar for students’ rights to civic education, indicating that bare-bones reading and writing skills are sufficient basic education for effective citizenship in 2022. That is simply unacceptable,” stated Jennifer Wood, co-counsel for plaintiffs and executive director of the Rhode Island Center for Justice.

The plaintiffs plan to ask the Supreme Court to add the case to its 2022-2023 docket by filing a petition for certiorari within the next 90 days.

For more background and information on Cook v. McKee (also A.C. v. McKee and formerly Cook v. Raimondo) please visit www.cookvmckee.info.

For the full text of the decision please visit http://media.ca1.uscourts.gov/pdf.opinions/20-2082P-01A.pdf

To support this upcoming Supreme Court petition and other educational equity efforts please consider donating to the Center for Educational Equity at www.tc.columbia.edu/cee/gift/

A.C. (Cook) v. McKee in Appellate Court

On Monday, the U.S. Court of Appeals for the First Circuit in Boston heard oral arguments in A.C. v. McKee. Our executive director, Michael A. Rebell, argued on behalf of 14 Rhode Island student plaintiffs that all students should be guaranteed a K-12 education that prepares them to carry out their civic responsibilities in a democracy.

The Center for Educational Equity and attorneys for the plaintiffs in this case have appreciated the outpouring of interest and support for the attempt to establish a right to education for civic preparation under the U.S. Constitution. The court will likely render a decision in the first half of 2022, and the next legal steps in our efforts to guarantee civic education will become clear at that time.

The case has also received a good deal of media attention. Hours before the hearing, The Boston Globe published a powerful op-ed by Martha Minow, the 300th Anniversary University Professor at Harvard University. Minow, former dean of the Harvard Law School, also submitted an amicus brief in support of the plaintiffs. 

The case has also been covered by ABC, the Associated Press, and the Boston Globe.

Below is a written summary of Rebell’s argument for the plaintiffs. You can also link to the full audio recording of the proceedings.

Summary of Plaintiffs’ Argument

This case is about the perpetuation of the constitutional values upon which the viability of our democratic system of government depends. And this is not hyperbole. The District Court strongly stated that “American democracy is in peril” and in 55 pages of eloquent prose described the peril and the importance of civic education in combating it. But, in the end, Judge Smith held that all that the Constitution guarantees to students is a minimum education, that is, basic reading and writing skills. We argue instead that the Supreme Court has said that students are entitled to a meaningful “quantum of education” that will prepare them to exercise important constitutional rights like the right to vote, free speech, and full participation in the political process. Reading and writing is a sine qua non, but much more is required.

We are asking the court to rule that some amount, some quantum of civic education, is required for students to exercise these constitutional rights. For example, media literacy is an absolute requirement to exercise constitutional rights in the 21st century. If you cannot distinguish erroneous from accurate information you are not in a position to vote effectively. You also need to acquire a certain amount of civic knowledge, civic skills, civic experiences, and civic values. That’s the core legal issue in this case…are kids entitled to some meaningful civic education that is going to prepare them to fully exercise their constitutional rights. 

Exactly what quantity of these skills and values, and which of them is most important, is a factual question for the district court to determine on remand. I think students need media literacy; I think they need a number of other things. But those are the points about which we have to present evidence to the district court and we’re prepared to do that.

Frankly, there was a tension between the strong statements the Supreme Court made in Brown regarding the paramount importance of education and their later holding in Rodriguez that education is not a fundamental interest under the Constitution. By saying in Rodriguez that there should be future consideration of what quantum of education is necessary to exercise important constitutional rights, the Court was trying to reconcile Brown and Rodriguez by carving out a subset of education that should be considered a fundamental right. Yes, this would be a statement of a new right, but it would not involve the micromanaging of the curriculum in Rhode Island. The state has the discretion under such a declaration of a right to determine the details, but needs to make it a priority, to say that civic education in the 21st century, when American democracy is in peril, is really important, and not treat it as less important than other subject, as Rhode Island does now. As the Supreme Court stated in Plyler, the American people have always regarded education and the acquisition of knowledge as a matter of supreme importance.

New York Settles Constitutional School-Funding Case NYSER v. State of New York

Following a commitment by the New York State Legislature earlier this year to increase funding for high-need school districts around the state by $4.2 billion by the 2023-24 school year, a settlement was reached in the lawsuit New Yorkers for Students’ Educational Rights (NYSER) v. State of New York. The NYSER case was filed in 2014 by a coalition of parents, students, and groups representing other stakeholders in the public education system to compel the state government to fully fund the Foundation Aid formula, the school-funding system established to ensure a sound basic education for all New York students in the wake of the landmark Campaign for Fiscal Equity (CFE) decision.

The NYSER plaintiffs were represented by the Center for Educational Equity’s executive director Michael Rebell, and pro bono counsel at the law firms Morgan Lewis & Bockius and White & Case; as well as the Education Law Center.  

In the settlement, the plaintiffs and the state agreed to put the case on hold on the condition that the stake lawmakers honor their commitment to phase in the remaining $4.2 billion increase in annual funding required to fully fund the Foundation Aid formula. If state follows through, the case will be dismissed. If not, the plaintiffs will be able to continue the litigation and seek an expedited trial to secure the promised funding.

Center for Educational Equity executive director Michael Rebell, co-counsel for the plaintiffs, said, “Unequal funding has long been a blight on education in New York State. Yesterday’s agreement will be an important mechanism to ensure that the State lives up to its constitutional obligation to adequately fund a sound basic education for all New York students.”

The state increased state aid for school funding this year by $1.4 billion statewide and has committed to providing similar increases for the next two years. The New York City public schools’ share of the increase this year was $530 million.

Full funding of the Foundation Aid formula is an important victory for New York students, particularly the students of color and students from low-income families who continue to be especially harmed by inadequate school funding and inequitable resources. It’s a big step but there’s still a great deal of work to do. To provide all students the opportunity for a sound basic education guaranteed to them by the state constitution, state leaders will need to update and improve the Foundation Aid formula and to create a new system that will provide accountability for adequate and equitable funding for all students on a permanent basis.

NY Appeals Court Upholds Plaintiffs’ Claims of Insufficient School Funding in Long-Pending “Small-Cities” Case

Last week, in a striking decision, a five-judge panel of the Appellate Division, Third Department, ruled unanimously that the plaintiffs in each of eight small-city New York school districts (Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie and Utica) had proved they were being denied the opportunity for a sound basic education guaranteed by Article XI of the New York State Constitution.

This decision in the case of Maisto v. State of New York again criticized the trial court judge, Albany County Supreme Court Judge Kimberley O’Connor, for misreading the applicable legal requirements.

This was the third time the case, originally filed in 2009, had been appealed to the Appellate Division. Rather than sending it back to the trial court once again, the court decided this time to undertake a rare “de novo” review and study the 5,000-page trial transcripts and 30 boxes of exhibits themselves and issue a final ruling, without any further input from the trial judge.

In its 52-page decision, the Appeals Court emphasized the needs of the “at-risk” student populations in these districts. The plaintiffs had presented extensive evidence that many of the districts lacked adequate academic intervention services (AIS) for students struggling academically, language services for students learning English, as well as social workers and guidance counselors. Emphasizing the importance of these resources, the court wrote:

Although we agree with [the trial court] that the educational system cannot be charged with resolving all of society’s problems, we believe that the services and programming in question are foundational, and the level provided was insufficient to meet student need.

In addition, the court criticized Justice O’Connor for her wholesale rejection of the testimony of plaintiffs’ expert witnesses and for failing to accept one of the experts’ findings regarding the importance of small class sizes, especially considering the Court of Appeals’ precedent on this point in the Campaign for Fiscal Equity (CFE) v. State case.

The court also expounded upon, and applied to this case, legal principles established by the Court of Appeals, New York’s highest court, in its three major decisions issued more than 15 years ago in the CFE litigation:

The Education Article requires defendant to offer “all children” the opportunity for a sound basic education … including those who “present with socioeconomic deficits” (Campaign for Fiscal Equity v. State of New York, 100 NY 2d at 915). … As explained by multiple qualified witnesses, providing at-risk students with a meaningful high school education … necessarily requires two general categories of resources: (1) a student and family support team comprised of adequate numbers of social workers, guidance counselors and parent and community liaisons; and (2) early, intensive academic interventions and extended learning opportunities. As noted by the Court of Appeals in CFE II, “all children can learn given appropriate instructional, social, and health services” …. [A]dequate AIS programming, language services and support personnel are relevant factors to consider when assessing the inputs portion of such a claim.

The panel of judges also noted, “Proof that a school district or its board of education has mismanaged its district is not defense to an otherwise established Education Article claim, as school districts are agents of [the State] (see [CFE II] at 922).”

After reviewing all the facts concerning services provided to students in each of the eight small-city school districts, the court held that the State had violated the constitutional rights of students in every one of these districts. The Appellate Division did not determine a remedy for these extensive constitutional violations; instead, it remitted the case to the trial court for further proceedings to determine an appropriate remedy.

The State has not yet indicated whether it will appeal this decision to the Court of Appeals. Nor is it clear what impact the state legislature’s recent commitment to fully fund foundation aid over the next few years will have on the remedy.

History of the Maisto Litigation

In 2009, a number of small-city New York school districts filed an adequacy challenge to the state’s education funding system. After seven years of procedural wrangling, a trial was held in the spring of 2016. In September 2016, the trial judge, Kimberley O’Connor, issued a decision that rejected plaintiffs’ claims and dismissed the case.

The judge essentially ignored all the evidence of inadequate educational inputs and below-par educational outcomes presented by the plaintiffs during the months-long trial; instead, she ruled that as a matter of law the State need not provide the level of aid its own foundation aid formula had determined to be necessary to provide students the opportunity for a sound basic education.

Although she agreed the performance of the students in the plaintiffs’ districts was “not acceptable,” Justice O’Connor determined that the remedial action required is “not in the form of a specific dollar amount, but is instead a blend of funding, oversight, and proper allocation of resources by the districts.” She also held that detailed analysis of the causal link between insufficient resource inputs and unacceptable student performance outputs, of the type the Court of Appeals had undertaken in 2003 in CFE v. State of New York when it upheld the plaintiffs’ claims of inadequate funding for students in New York City, was no longer necessary because we are now “in the post-CFE environment.”

Plaintiffs appealed Justice O’Connor’s decision to the Appellate Division, Third Department. The appeals court unanimously decided in October 2017 to reverse the decision and send the case back to the trial court to issue specific findings on whether the plaintiffs had presented sufficient evidence that inadequate resources are a direct cause of the poor educational outcomes of students in those districts.

The Appellate Division strongly rejected the notion that there is a “post-CFE environment,” and the indication the Court of Appeals’ approach to analyzing constitutional deficiencies in CFE applied only to that case. Noting that the Court of Appeals had recently reaffirmed the continued relevance of the CFE precedent for current litigations in its 2017 decision in Aristy-Farer/NYSER v. State, the court held that Justice O’Connor must review all the evidence the parties had presented and provide specific findings of fact for each of the eight school districts regarding the needs of their respective students.

In January 2019, Justice O’Connor issued a 113-page opinion that again concluded plaintiffs had failed to meet their burden of proof and the case should be dismissed.

In this decision, the court acknowledged that the educational outputs in all eight districts are “undeniably inadequate” and concentrated on the question of whether resource inputs were inadequate and, therefore, caused the unacceptable outcomes. It systematically examined issues of class size, teacher qualifications, facilities, instrumentalities of learning, and supplemental services for “at-risk” students in each of the districts.

Despite the fact that the plaintiffs established that, in every one of the eight districts, many “at-risk” students were not receiving the full extent of supplemental academic intervention services required by state law, Justice O’Connor held that full compliance was “aspirational” and not a constitutional requirement.

She then concluded that resources were adequate in all of these areas in all of the districts and that the basic cause of the inadequate outcomes was “ineffective leadership” and failures to “reevaluate … operations and allocation of resources.”

The plaintiffs again appealed this decision to the Appellate Division, which, in May 2021, issued its decision reversing Justice O’Connor’s findings.

Note: The Center for Educational Equity, Teachers College, Columbia University, submitted an amicus brief in support of the plaintiff’s decision.

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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Your New York Education Budget Questions Answered

We’ve compiled state and federal information to answer your questions about the New York education budget.

STATE FUNDING ISSUES

This year, New York State’s budget situation and budget negotiations have been complicated (but also made much easier) by the large infusion of federal aid that will be coming to the State as a result of the most recent relief bill. If you are unfamiliar with the budget process for New York State, here is a quick breakdown of how it typically goes:

  1. The governor releases the proposed executive budget in January.
  2. Shortly after that executive budget is released, the New York State Senate and Assembly hold joint public hearings throughout the end of January and the month of February. 
  3. By mid-March, each house of the Legislature releases a response to the executive budget with a proposed counter-budget.  

How do the state senate and assembly education budget proposals compare?

State Senate Budget ResolutionAssembly Budget Proposal
Increase of $3.5B over the executive budget proposalIncrease of $3.2B over the executive budget proposal
State funding is supplemented with relief fundsState funding is supplemented with relief funds
Increase foundation aid by $1.37BIncrease foundation aid by $1.4B
Fully phase in foundation aid over 3 yearsFully phase in foundation aid over 3 years
N/ADenies executive proposal to cut charter facilities aid to NYC

Back in January, we criticized Gov. Cuomo’s executive budget proposal for its severe austerity measures and his plan to supplant state education funding with federal dollars – federal dollars that were intended for COVID-19 relief. With the passing of the fed’s American Rescue Plan Act (ARP Act), the Governor can no longer make a case for his previously proposed cuts to New York’s education sector. 

FEDERAL AID ISSUES

According to the U.S. Dept. of Education, the ARP Act provides the State of New York with $8.9 billion to help schools reopen. Allocations to states are in exact proportion to Title 1 funding that states receive under the Elementary and Secondary Education Act of 1965. New York City, the State’s biggest school district, is expected to receive roughly half of the ARP Act funds coming to New York at $4.5 billion. 

Thanks to the influx of federal funds, there is no longer any reason to entertain the Governor’s proposed cuts to education funding. Indeed, the State Legislature has proposed deeper investment in the education system. Perhaps most notably, both the State Senate and the Assembly have proposed to fully phase in Foundation Aid over the next 3 years. Additionally, both houses have proposed restoring the $1.35 billion in cuts to state aid in the 2020-2021 budget and using federal relief funds to supplement (rather than supplant) state aid.

The main question now is what should we do with billions of dollars in supplementary funding? Reema Amin, of Chalkbeat, reported that several education advocates and stakeholders have big ideas for the relief dollars going to New York State and New York City. The United Federal of Teachers wants $1 billion to fund teams at each school that would provide academic intervention for students and assist with mental health needs. They also call for a pilot program that would reduce class size at 100 high-need schools and result in the hiring of 1,500 more teachers. The Alliance for Quality Education is calling for investment in socio-emotional learning and smaller class sizes. They also want a public-facing spending tracker that would provide clarity on how the state government is spending its funds. Education Trust-NY has called for investment in mental health through restorative summer programming that includes both academic and cultural enrichment for students. They have asked that NYC find out how many families want their children back in school buildings and proposed that the City offer Saturday enrichment programs. Class Size Matters and NYC Kids PAC want NYC to use funds to reduce class size and achieve a social worker to student ratio of 1:250. They ask that NYC hire 10,000 new teachers.

Based on the spending requirements established by the ARP Act, it does seem like any of these ideas are possible. Here’s a breakdown of the fed’s guidelines for using relief funds.

State Education Agency (SEA) RequirementsLocal Education Agency (LEA) Requirements
Subgrant at least 90% to school districts (includes charter schools if they are also LEAs)
 
Allocate funds to LEAs within 60 days of receiving funds from the fed
 
Set aside at least 5% for addressing learning loss directly or through subgrants or contracts
 
Set aside at least 1% for summer enrichment programs
 
Set aside at least 1% for afterschool programs
 
May reserve, at most, 0.5% for administrative costs and the remainder for any emergency needs related to the pandemic
 
Must return any unspent funds to the Secretary of Education within 1 year of receipt
Must publish plan to reopen schools for in-person instruction within 30 days of receiving funding (unclear if this means all schools and it is also unclear if reopened schools need to be at full capacity)

Must use at least 20% to address learning loss[1]

The remaining funds may be used for any activity that school districts would typically be able to fund with their budgets








State Education Department Requirements:

  • Subgrant at least 90% to school districts. 
  • Allocate funds to local education agencies within 60 days of receiving funds.
  • Set-aside at least 5% for addressing learning loss.
  • Set-aside at least 1% for summer enrichment programs.
  • Set aside at least 1% for afterschool programs.
  • States may reserve, at most, 0.5% for administrative costs and the remainder for any emergency needs related to the pandemic.
  • Return any unspent funds to the Secretary of Education within 1 year of receipt.

Local Education Agency (LEA) Requirements:

  • Publish plan to reopen schools for in-person instruction within 30 days.
  • Use at least 20% to address learning loss
  • The remaining funds may be used for any activity that school districts would typically be able to fund with their budgets (a full list of activities are listed at the end of this post).

This is good news for LEAs. The requirements for spending relief funds are vague enough that school districts can take this opportunity to make great improvements to their schools so long as it addresses learning loss. This means that in addition to addressing mental health needs and academic disparities, districts can also invest in addressing the civic learning loss that has resulted from the pandemic. 

List of eligible activities that LEAs can use relief funds for: [2]

“(A) Any activity authorized by the Elementary and Secondary Education Act of 1965. 

(B) Any activity authorized by the Individuals with Disabilities Education Act. 

(C) Any activity authorized by the Adult Education and Family Literacy Act. 

(D) Any activity authorized by the Carl D. Perkins Career and Technical Education Act of 2006. 

(E) Coordination of preparedness and response efforts of local educational agencies with State, local, Tribal, and territorial public health departments, and other relevant agencies, to improve coordinated responses among such entities to prevent, prepare for, and respond to coronavirus. 

(F) Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth, including how outreach and service delivery will meet the needs of each population. 

(G) Developing and implementing procedures and systems to improve the preparedness and response efforts of local educational agencies. 

(H) Training and professional development for staff of the local educational agency on sanitation and minimizing the spread of infectious diseases. 

(I) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including buildings operated by such agency. 

(J) Planning for, coordinating, and implementing activities during long-term closures, including providing meals to eligible students, providing technology for online learning to all students, providing guidance for carrying out requirements under the Individuals with Disabilities Education Act and ensuring other educational services can continue to be provided consistent with all Federal, State, and local requirements. 

(K) Purchasing educational technology (including hardware, software, and connectivity) for students who are served by the local educational agency that aids in regular and substantive educational interaction between students and their classroom instructors, including low-income students and children with disabilities, which may include assistive technology or adaptive equipment. 

(L) Providing mental health services and supports, including through the implementation of evidence-based full-service community schools. 

(M) Planning and implementing activities related to summer learning and supplemental afterschool programs, including providing classroom instruction or online learning during the summer months and addressing the needs of low-income students, children with disabilities, English learners, migrant students, students experiencing homelessness, and children in foster care. 

(N) Addressing learning loss among students, including low-income students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and children and youth in foster care, of the local educational agency, including by—(i) administering and using high-quality assessments that are valid and reliable, to accurately assess students’ academic progress and assist educators in meeting students’ academic needs, including through differentiating instruction; (ii) implementing evidence-based activities to meet the comprehensive needs of students; (iii) providing information and assistance to parents and families on how they can effectively support students, including in a distance learning environment; and (iv) tracking student attendance and improving student engagement in distance education.

(O) School facility repairs and improvements to enable operation of schools to reduce risk of virus transmission and exposure to environmental health hazards, and to support student health needs. 

(P) Inspection, testing, maintenance, repair, replacement, and upgrade projects to improve the indoor air quality in school facilities, including mechanical and non-mechanical heating, ventilation, and air conditioning systems, filtering, purification and other air cleaning, fans, control systems, and window and door repair and replacement. 

(Q) Developing strategies and implementing public health protocols including, to the greatest extent practicable, policies in line with guidance from the Centers for Disease Control and Prevention for the reopening and operation of school facilities to effectively maintain the health and safety of students, educators, and other staff. 

(R) Other activities that are necessary to maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency.”


[1] LEAs may address learning loss through “implementation of evidence-based interventions, such as summer learning or summer enrichment, extended day, comprehensive afterschool programs, or extended school year programs, and ensure that such interventions respond to students’ academic, social, and emotional needs and address the disproportionate impact of the coronavirus on the student subgroups described in section 1111(b)(2)(B)(xi) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311(b)(2)(B)(xi)), students experiencing homelessness, and children and youth in foster care…”

[2] Extracted from ARP Act: https://www.congress.gov/bill/117th-congress/house-bill/1319/text#toc-HC9CE46A721204EB081A88ACD8FB287D5