New York City’s Universal Physical Education Initiative: A Postive Step toward Ensuring a Meaningful Education for All Students in NYC

PhysEd4All-Teal-300x275The Campaign for Educational Equity is a member of the Phys Ed 4 All  Coalition, a network comprising community-based organizations, advocates, parents, educators, health professionals, and school administrators who are committed to increasing access to quality physical education in New York City public schools.

The Phys Ed 4 All Coalition applauds Mayor Bill de Blasio, Council Speaker Melissa Mark-Viverito, and Schools Chancellor Carmen Fariña for the city’s announced Universal Physical Education (PE) commitment to provide all schools with designated spaces for effective phys. ed. by 2021.

New York City’s Universal PE Initiative is an important acknowledgment that the facilities of many NYC schools do not currently meet the requirements of the state law. All New York students are entitled to public schools that provide them with suitable and accessible facilities, including adequate specialized spaces for libraries, laboratories, auditoriums, gymnasiums, and playgrounds (see CFE v. State of New York, 2003).

As Mayor de Blasio stated, “Incorporating physical activity into the day isn’t just the healthy thing for our young people, it is the law and one that was ignored for far too long.” This recognition that access to physical education is an educational right signals an important shift by elected officials toward honoring the rights of all students to a sound basic education by providing the learning resources to which they are entitled.

Suitable facilities is just one of the important educational resources necessary to fulfill students’ rights in this area. As noted in the recently released New York Lawyers for the Public Interest (NYLPI) report, Leveling the Playing Field: Access to Physical Education in New York City’s Public School System, many New York City students also lack access to state-mandated hours of PE instruction. Students in kindergarten to third grade, Black children, and children with disabilities are reported as most affected.

More information on the physical-education opportunities mandated by New York State statutes, regulations, and judicial requirements can be found in our Know Your Educational Rights handout on that topic. Information on the full range of students’ educational rights under state law is detailed in our December 2012 report Essential Resources. (Note that we plan to release the second edition of Essential Resources by fall 2017 to reflect recent policy changes.)

Statewide Implications of June 27th New York Court of Appeals Educational-Equity Decision

Courtroom_of_the_New_York_Court_of_AppealsOn Tuesday, June, 27, 2017, the New York Court of Appeals, the state’s highest court, issued a decision upholding the viability of all of the plaintiffs’ essential claims in New Yorkers for Students’ Educational Rights (NYSER) v. State of New York. The court held that the case could proceed to trial to provide evidence to prove those claims for New York City and Syracuse. (Click here to read the full decision.)

The court clearly affirmed that all students in the state of New York have a constitutional right to the opportunity for a sound basic education. For plaintiffs to extend their essential claims beyond New York City and Syracuse to other districts statewide, they must provide further evidence on a district-by-district basis.

The court’s ruling underscores the importance of understanding how resource inequities and inadequacies affect students at the school level. Evidence presented by the NYSER plaintiffs drew on in-depth school-level research conducted by the Campaign for Educational Equity at Teachers College, Columbia University, to assess the availability of basic educational resources in selected school districts around the state. Information about school-level resources helps policymakers, educators, families, and the courts both assess constitutional compliance and support continuous improvement.

Last fall, the Campaign for Educational Equity (CEE) released a series of reports to help guide state policymakers to develop a constitutional education-resource system. The series includes a research-based policy roadmap entitled Ensuring Resource Accountability that provides recommendations for improved monitoring of the availability of adequate learning opportunities for all students in every New York school.

CEE continues to contribute research, legal analysis, policy development, and public engagement to define and secure the full range of resources, supports, and services necessary to honor students’ right to be prepared for college, careers, and civic participation.

CEE’s Parent and Student Partners Attend NY Court of Appeals Hearing re: Educational Rights

Court of Appeals

On May 30th, the Campaign for Educational Equity hosted a group of parent and student partners on a trip to Albany to hear oral arguments for New Yorkers for Students’ Educational Rights (NYSER) v. State of New York at the Court of Appeals, New York State’s highest court.

NYSER v. State is a lawsuit that was filed in February 2014—against the State of New York, Governor Andrew Cuomo, and state education officials—on behalf of New York’s public school students. The plaintiffs include several families from across New York State, as well as New Yorkers for Students’ Educational Rights (NYSER), a statewide coalition of stakeholder groups that formed to bring the lawsuit. The plaintiffs charge that the state is violating students’ educational rights by neglecting its constitutional obligation to ensure that every school has sufficient funding to provide all students with meaningful educational opportunity.

The May 30th hearing was scheduled after the state appealed a lower court’s ruling against its motion to dismiss the plaintiffs’ charges. The state argues that it does not owe schools additional funding; that it does not have a constitutional obligation to change the way it distributes school funding (its foundation aid formula); and that the plaintiffs’ claims not apply to all of the state’s 700-plus districts, but only to New York City and Syracuse.

The lawyers for the plaintiffs articulated the importance of applying their claims to the entire state, the amount of money still owed based on the 2006 CFE ruling, and the obligation to reassess the education-funding formula so that all schools receive adequate funding to provide a meaningful education to all students. The NYSER case is the first case on behalf of all underfunded school districts in New York State rather than limited to certain school districts.

The Court of Appeals’ decision on the lower court’s ruling against the state’s motion to dismiss is expected in late June or early July.

Following the hearing, Chief Judge DiFiore joined our youth and parent collaborators as well as a student group from Yonkers High School to discuss the role of the Court of Appeals in a broader civic context. Although protocol prohibited the chief judge from discussing the NYSER case in that particular setting, the opportunity for our partners to witness the oral arguments and speak with the chief judge enhanced their understanding of education law, how the legal system interacts with policy and political systems, and how parents, students, and other stakeholders can use civic skills to influence the decision-making process.

NYSER is one of many groups that has made use of the Campaign for Educational Equity’s school-based research, legal analysis, and policy development regarding resource inequities affecting New York schools. Interested in learning more about our collaborative efforts to define and secure the full range of resources, supports, and services necessary to guarantee all children, particularly children in poverty and children of color, a meaningful education? Visit the Focus Areas section of our website:

Early Education Forum: Establishing a Right to Pre-K for All New York State’s Children

On May 9th, the Campaign for Educational Equity (CEE) in collaboration with the Center for Children’s Initiatives (CCI) and the Schuyler Center for Analysis and Advocacy hosted a forum with participants who are leading the charge for universal pre-K for all children in New York State. This forum debuted the working draft of a white paper, Establishing Universal Access to Prekindergarten as a Constitutional Right, coauthored by CEE and CCI. The paper makes the legal argument for the constitutional right to universal access to pre-K, and advances New York State as the best venue for litigation to affirm that right.

More than 50 national, state, and local policy experts, researchers, advocates, and educators from early childhood and public schools attended the forum to discuss the future of universal pre-K in New York. The significance of this conversation is especially heightened now, as the fourth year of the state’s five-year funding commitment approaches, with no firmly established plan to ensure adequate, stable, sustained, and equitable funding for pre-K going forward.

In the morning session, Michael Rebell, executive director of CEE, set forth the case for making preschool education a fundamental part of the free public education to which all children are entitled, laying out persuasive evidence on the benefits of universal access to pre-K as the foundation tier of public education and the legal precedents for establishing the right. Steve Barnett, executive director of the National Institute for Early Education Research, and Jay Worona, deputy executive director and general counsel for the New York State School Boards Association, offered insightful comments on how our strategy will serve to stabilize funding and quality of pre-K throughout the state and also addressed the challenges and potential reactions of district superintendents to this additional requirement.

Their remarks were followed by additional important feedback on the strategy from other national, state, and local researchers, advocates, and educators. Many participants’ responses expressed excitement at the potential of establishing pre-K as a constitutional right even as they raised pragmatic questions on implementation. Zoila Morell of Mercy College and Kim Sweet of Advocates for Children of New York (AFC) shared their expertise and insight into the needs of multilingual learners as well as preschoolers with special needs. Christine Johnson-Staub of the Center for Law and Social Policy (CLASP) in Washington, D.C., described the potential advantages– as well as the challenges – that expansion of pre-K offers in building a continuum of early childhood services that includes children from birth to three.

The afternoon session took stock of the pre-K landscape in New York State and discussed necessary next steps to make quality pre-K integral to educational opportunity and to assure it is a building block for an early care and learning system. Betty Holcomb, CCI’s policy director, set the stage with a summary of the current state of pre-K in New York. Kate Breslin of the Schuyler Center for Analysis and Advocacy, Jasmine Gripper of the Alliance for Quality Education, Brigit Hurley of The Children’s Agenda, and Randi Levine of AFC shared their policy and strategic expertise on the subject. Representatives from the Long Island Pre-K Initiative presented a vision for regional coordination to support both implementation and advocacy to make pre-K truly universal.

Overall, participants’ support for the value of a rights-based approach to pre-K affirms the importance of this transformative strategy. CEE and CCI plan to finalize our working draft over the summer and release it in the fall, at a second convening with state leaders in Albany.

Opportunity Gaps and Advanced Regents Diplomas

As New York State Education Commissioner MaryEllen Elia affirmed in a statement earlier this month, “We know the achievement gap exists as a direct result of the opportunities that are available to some students but not others . . . An important part of closing that gap is to foster real change and provide opportunities for all students.”

This is not a new revelation, but the commissioner’s acknowledgment of the significance of the opportunity gap is important, and welcome.

The obvious gap between the educational opportunities available to students in affluent, predominantly white areas and those typically available to students of color and students in poverty is exemplified in the State Education Department’s February 2017 report on four-year graduation rates for students who began 9th grade in 2012. A chart on page 8 of that report shows significant race-based disparities in the attainment of advanced-designation Regents diplomas, a prestigious honor that gives students an advantage in the college-admissions process, especially for those applying to colleges in the State University of New York and City University of New York systems.

According to state education officials, just 10.3% of black students and 13.9% of Latino/a students were awarded an advanced Regents diploma, while 43.7% of their white peers received that special designation.

Advanced Regent Stats

What these statistics do not reveal, however, is that predominantly black and Latino/a public high schools in New York City (and almost certainly elsewhere) are less likely to offer the sequences of courses—in the arts, in languages other than English, and in career and technical education, plus additional science and math courses—that students must take in order to earn an advanced Regents diploma. As former Board of Regents Chancellor Merryl Tisch declared in 2014, contextualizing the racial disparities in New York’s graduation rates, “There’s clearly a lack of equity in access in the course offerings necessary for the Advanced Designation.”

Without that additional context, too many New Yorkers, including the young people who were never given a chance to earn that award, are left to reach their own conclusions as to why lower percentages of New York students of color are graduating without the advanced designation. “Additional work is still needed to close achievement gaps,” reads the final slide in the graduation-rate presentation. (What is that “additional work”? The presentation doesn’t say.)

Simply put, a student who is never offered the opportunity to achieve an academic honor will never achieve that honor. If our state policymakers see value in creating opportunities for New York students to excel academically and earn special honors (and the significant privileges that those honors confer), they must also see the value in ensuring that all students have access to those opportunities.

It’s time to demystify and expose the systemic discrimination behind these so-called achievement gaps. To that end, whenever the State Education Department (or any other state or district body) releases data showing disparities in student outcomes, including the attainment of advanced Regents diplomas, it should also be required to release comparable data—presented in equally user-friendly charts, graphs, slides, and summaries—showing the disparities in access to the learning opportunities and resources that students need in order to achieve the related standards. State education officials should also fill the regulatory gaps that, along with longstanding school-funding disparities, allow these discriminatory elements of our education system to fester.

We must demand that our government be explicit in connecting the dots between outcome disparities and opportunity disparities—and in fulfilling its moral and legal obligation to provide the levels of resources and supports required to give all children a chance to meet state standards and achieve at the highest academic levels. (Our recent Ensuring Resource Accountability report, part of our Students’ Constitutional Right to a Sound Basic Education: New York State’s Unfinished Agenda roadmap for elected officials and education-policy leaders, explains what state officials need to do to satisfy these obligations.)

Former Gov. Spitzer Underscores NY’s Constitutional School-Funding Obligation

In late January, I wrote an op-ed piece in the New York Daily News that took issue with the position espoused a few days earlier in an op-ed by Paul Francis, currently a Deputy Secretary to Gov. Andrew Cuomo and formerly the Budget Director for Gov. Eliot Spitzer.

Francis had claimed that the Foundation Aid formula, the state’s primary mechanism for distributing school funding, that was adopted by the New York State legislature in 2007, was merely “aspirational” and had not been a constitutionally mandated response to the Court of Appeals’ orders in the CFE litigation.

Yesterday’s Times Union op-ed by former Gov. Spitzer fully confirms that the Foundation Aid formula was indeed “constitutionally mandated.” Below is Spitzer’s statement.

Michael A. Rebell

Times Union, 2/15/17: Funding our schools adequately has long been viewed as a moral imperative. In 2006, it also became a constitutional imperative.

That year, the New York Court of Appeals, our highest court, issued a final ruling in the Campaign for Fiscal Equity lawsuit, holding that all children in New York state have the constitutional right to a “sound basic education.” Unfortunately, the court also found we were failing to fulfill that obligation.

The bipartisan budget that was enacted in 2007 confronted this failure and constitutional obligation directly — we substituted a backroom politically driven funding process that had both underfunded and misallocated education aid with a new Foundation Aid formula. We put in place a data-driven overhaul of the way New York funded its public schools. The court ruling created a legal imperative that brought political agreement to an arena traditionally fraught with divisiveness.

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.

The new structure of Foundation Aid was designed to increase classroom operating aid by $5.5 billion statewide, phased in over four years — plus an allowance for inflation, as ordered by the Court. In the 2007-08 and 2008-09 state budgets, the funding increases were delivered on schedule.

But in the years since, the formula has been chronically underfunded. As a result, New York is now in the company of states like Mississippi and Georgia where, year-in and year-out, funding formulas are consistently ignored to the detriment of students.

And today, a decade later, as a consequence, we see in far too many schools the same conditions that led to the CFE lawsuit in the first place. That’s why I am especially disappointed that the current budget proposal would eliminate the Foundation Aid formula entirely and, with it, the $4.3 billion still owed under the formula to our schools.

The lack of funding means that, across New York, we will continue to see the glaring educational deficits we intended to address through funding the Foundation Aid formula. Elementary-grade classes are crowded with 30 students or more. Schools lack enough specialized teachers for English language learners. Guidance counselors serve 400 to 800 students, leaving little opportunity for individualized attention for students. School libraries operate with reduced hours. Summer school classes and tutoring are in short supply for students who have fallen behind and are at risk of dropping out.

New York can and must do better. We all now acknowledge that as a moral, constitutional and economic imperative we have to invest properly in the education of our children. Yet today we still are not providing children with what they are entitled to and deserve — the opportunity for a “sound basic education.”

The good news is that the solution is still on the books. Foundation Aid was enacted to comply with the court order in CFE. It’s time for the state to fund the formula fully, not repeal it.

Parent Leaders ‘Take the Law into Their Own Hands’ at Legislative Breakfast

On Saturday, February 11, an outstanding team of Central Brooklyn parent leaders affiliated with the Adelaide Sanford Institute’s (ASI) Parent Leadership Institute and supported by the Campaign for Educational Equity (CEE), outlined New York students’ educational rights and presented their own rights-focused legislative requests at a well-attended breakfast with city and state elected officials, parent leaders and their children, and local civic leaders. Please read our “Movement-Building” backstory and then the legislative-breakfast reflection by Earline and Priscilla Mensah, a dynamic Parent Leadership Institute mother-daughter duo.

By Joe Rogers, Jr., Director of Public Engagement / Senior Researcher, Campaign for Educational Equity

In May 2015, CEE’s Know Your Educational Rights public-engagement and research team launched a partnership with the ASI’s Parent Leadership Institute to facilitate monthly Saturday-morning educational-rights workshops, which ultimately informed over 100 parent leaders about students’ resource-related rights under New York State law. Some participants, curious about the levels of opportunity available to their children, began using our research tools to assess and report back on the availability of basic resources in their schools. The parents also benefited from candid school-resource-related conversations with a number of master educators.

In return, the parents contribute invaluable feedback and advice to help strengthen our Know Your Educational Rights handouts and tools, provide useful recommendations on how to engage the education bureaucracies in assuming responsibility for informing families of students’ rights, and continue to inspire our team with their outstanding commitment to making sure all students in their neighborhoods, not just their children, receive the quality opportunities to which they are entitled. Through their words and actions, they embody “it takes a village to raise a child.”

In September 2016, a smaller group of those parent leaders, known as the “Know Your Educational Rights Parent Ambassadors,” kicked off a months-long campaign to share their new knowledge at important forums throughout Central Brooklyn, including the public meetings of several Community Education Councils, Community Board education committees, parent associations, and the Brooklyn Borough High School Presidents Council. Inspired by the Parent Ambassadors’ powerful leadership, and grateful for the valuable new information, parents and other community members around Brooklyn and throughout NYC have begun to call upon state and local elected and education officials to inform all families about students’ educational rights by September 2017.

By Earline Mensah, Parent Ambassador, Parent Leadership Institute (Adelaide Sanford Institute) & President, Brooklyn Borough High School Presidents Council; Priscilla Mensah, Member, Parent Leadership Institute (Adelaide Sanford Institute)

“BBCCSSSE” is what you heard dozens of parents and elected officials chanting in the library of Bedford Stuyvesant’s very own Boys and Girls High School this past Saturday. This is because, on Saturday February 11, 2017, the Adelaide Sanford Institute hosted its annual legislative breakfast featuring elected officials and other members of the community, such as parents and educators.

One of the main themes of the program involved Dr. Renee Young teaching the audience members the “BBCCSSSE” chant, which stands for New York students’ fundamental resource-related rights under the state constitution: “books” (and other instructional materials, supplies, and technology), “buildings” (facilities), [appropriate] “class size,” [suitable and up-to-date] “curricula,” “services” (for students struggling academically), “safe [and orderly] environment,” “smart” (qualified educators and other school personnel), and services for English Language Learners and students with disabilities. In attendance were Assembly Members Latrice Monique Walker and Annette Robinson (retired), Council Members Inez Barron and Al Vann (retired), and State Senators Roxanne Persaud and Kevin Parker.

Parents were given the opportunity to voice their demands—to inform all parents of students’ rights by this fall and to create a network of Central Brooklyn parent resource centers—and concerns to the elected officials. Other notables included NAACP Brooklyn Chapter president L. Joy Williams; Director of the Adelaide Sanford Institute Dr. Christopher Smith; two of the hosts of the forum, Drs. Renee and Lester Young, the former of whom leads ASI’s Parent Leadership Institute and the latter of whom serves as ASI’s board chair and on the New York State Board of Regents; and Joe Rogers, Jr., of the Campaign for Educational Equity at Teachers College, Columbia University.

The morning was filled with presentations by parent leaders Earline Mensah, Lorraine Calame, and husband-and-wife team Cora Cuffey and Barry Lelitte speaking on the resources and supports that all New York State students are entitled to under the law. Before the presentation, few in the room were aware of those rights; thanks to the “BBCCSSSE” incantation, we’re sure that has greatly changed. The atmosphere was positive and inviting, with many people, including the elected officials and community leaders, winning early Valentine’s Day chocolates for demonstrating their mastery of “BBCCSSSE.”

Students’ Constitutional Rights Are Obligatory, Not “Symbolic” or “Aspirational”

By Michael Rebell

Paul Francis, deputy secretary for health and human services under Gov. Andrew Cuomo, wrote in an op-ed in yesterday’s N.Y. Daily News that the objections that public-school parents, education-law scholars, and advocates have lodged to the governor’s ongoing failure to fund our state’s public schools adequately—and his recent proposal to eliminate the state’s constitutionally required foundation-aid formula—are based on “misinformation and distortions that would be laughed out of any competent classroom.” I don’t know what classrooms Francis has been visiting lately, but I do know that the state courts do not consider the allegations of violations of students’ rights under the education article of the state constitution to be a laughing matter. In fact, in the case New Yorkers for Students’ Educational Rights (NYSER) v. State of New York, the seriousness of these charges has been upheld by two state courts and will be considered this spring by the Court of Appeals, New York’s highest court.

In Campaign for Fiscal Equity (CFE) v. State of New York, a landmark decision issued in 2003, the Court of Appeals held that every child in New York State is entitled under Article XI of the state constitution to “the opportunity for a sound basic education.” The legislature adopted a foundation-aid formula in 2007 to distribute education funding more fairly in order to comply with the court’s decision. Francis, however, appears to believe that the court’s CFE ruling is merely “symbolic” and has no lasting significance. This view is apparently shared by Governor Cuomo, who has suggested that the foundation-aid formula is “aspirational” and that he therefore need not make an effort to provide the additional $4.3 billion that the state’s schoolchildren are owed under the formula. Instead, in the executive budget proposal he issued last week, the governor has asked the legislature to erase the requirement to adhere to the foundation formula from the state’s statute books.

Francis was the former budget director for Governor Eliot Spitzer, who originally proposed the foundation-aid formula, and, for that reason, he says that he “would know… the facts.” He may know what the formula requires (which is not actually in dispute), but he clearly does not know the law. As co-counsel for the plaintiffs throughout the CFE litigation, I do know what the court actually said and what it means for public school students in New York State.

CFE was not a ruling issued solely to remedy the inadequate funding levels the court found in the New York City public schools at the time of the trial. Like other major pronouncements on constitutional rights, the CFE opinions were definitive and highly significant proclamations from the state’s highest court that articulated precisely the state’s enduring obligations to its schoolchildren. They outlined students’ rights, not just for 2003, but for as long as the education article of the state constitution remains in effect.

The court determined that annual state aid for education had for decades been determined without regard to actual student needs but through political wheeling and dealing by “three men in a room” (the governor and the leaders of the state senate and the state assembly). The court held that future state funding for education must be determined systematically in a way that would “align funding with need.” Specifically, the court held that the State must

(1) “ascertain the actual cost of providing a sound basic education;” (2) [ensure] that every school … would have the resources necessary for providing the opportunity for a sound basic education;” and (3) “ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education.

The state complied with these requirements in 2007 when it enacted a Budget and Reform Act in order to, as the Assembly Education Committee put it at the time, “satisfy the requirements of the CFE court decision.” Recognizing that the funding deficiencies that the Court of Appeals had found in regard to New York City also applied statewide, the 2007 reforms were enacted, in Governor Spitzer’s words, to “provide a statewide solution to the school funding needs highlighted by the Campaign for Fiscal Equity Lawsuit.”

Paul Francis, working for the current governor, is now trying to minimize the significance of the 2007 Reform Act by spinning a simplistic and erroneous summary of what the Court of Appeals did in 2006 when an impasse had developed between Governor George Pataki and the legislature on complying with the court’s order to determine the “actual cost” of providing a sound basic education. Francis claims that, at that time, the Court of Appeals merely “codif[ied] a study by a special commission appointed by Gov. George Pataki recommending funding for New York City schools be increased by an additional $1.9 billion from combined state, federal and local sources.” Since, according to Francis, that amount of increased funding has now been paid out, nothing more is required.

In fact, however, in 2006, the Court of Appeals made clear that it was the responsibility of the governor and the legislature, and not of the court, to determine the actual costs of providing the opportunity for sound basic education to all New York students, based on students’ needs. The Court ordered the governor and the legislature to act during the next legislative session to overcome their impasse and to determine an actual cost level within a range of $1.9 billion and $5.63 billion (a figure that stemmed from the range of cost studies that the lower courts had reviewed). Governor Spitzer and the legislature did overcome the executive-legislative impasse, and, in doing so, adopted the foundation-aid formula that calculated a significantly greater weight for the needs of students living in poverty and English language learners than Governor Pataki had proposed. The result was a number much closer to the high end of the court’s designated range, rather than the low end that Governor Pataki had advocated.

For the first two years after adopting the 2007 plan, the state largely adhered to its commitment to phase-in the increases called for by the foundation formula over a four-year period. Following the recession of 2008, however, the state defaulted on its commitments and, beginning with the 2009-10 school year, has failed to provide school districts throughout the state the amount of state aid it had itself determined to be necessary to meet its constitutional obligation to fund schools fairly and adequately. During the recession years, state officials essentially conceded that their failure to provide the full amount of increased funding called for by the foundation formula was, in fact, denying children their constitutional rights. They explained that the amounts they were withholding constituted a temporary “gap elimination adjustment” that was necessitated by the demands of the recession. Once the economy recovered, this implied, they would reinstate the constitutionally mandated funding phase-in.

This “gap elimination adjustment” was itself unconstitutional because, as the courts have repeatedly held, constitutional rights cannot be put on hold because of a recession or state fiscal constraints. Now that the economy has revived, Governor Cuomo’s disregard of the state’s obligation to New York’s children is both unconstitutional and unconscionable.

The decisions the state made in 2007 to achieve constitutional compliance are not, of course, written in stone and the state could adopt a new plan for constitutional compliance that responds to changes in educational requirements and students’ needs that have occurred over the past decade. However, if the state wants to revise and update the foundation-aid formula, it must do so in a manner that complies with constitutional requirements.

Any formula changes must be based on a valid, current study to determine what is the “actual cost” of a sound basic education and to determine what revisions are needed in the distribution of funding to the school districts in order to ensure that all schools throughout the state have sufficient resources to provide all their students a meaningful educational opportunity. The state has not undertaken any such analyses and, until and unless it does, the existing foundation-aid formula stands and must be honored.

The governor’s call to abandon the foundation-aid formula and revert to the discredited “three men in a room” deal-making system for determining what the state will spend to prepare its students for their civic and economic futures is clearly unconstitutional. It must be rejected by the legislature—or, if need be, by the courts.

Governor Cuomo’s Budget Proposal Disregards Students’ Constitutional Rights

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.

CBC Report Highlights Foundation Formula Inequities

By Michael Rebell

cbcnycThe Citizens Budget Commission (CBC)  released a report December 2016 that argues that the legislature could fully implement New York State’s foundation formula to provide full funding for high need districts with only a total increase of $569 million in state funding, in contrast to the almost $4 billion that many advocates are calling for to fully fund the state’s foundation formula. The foundation formula was adopted by the state in 2007 in the wake of the CFE decisions, but has not been fully funded by the state since the 2008 recession.

The foundation formula largely adhered to the Court of Appeals’ directive that state education funding must be responsive to student need; it provided substantial increases for students in New York City and other high need districts throughout the state. At the same time, however, according to the CBC, the formula  included a number of hold harmless provisions, arbitrary floors, ceilings, phase-ins and add-ons that distort final funding distributions. In addition, inconsistent local share calculations do not uniformly and fairly account for a district’s ability to pay, and outdated measures of poverty understate or overstate need in many districts. It is by eliminating these aspects of the formula that inequitably benefit low wealth districts that full funding could be provided to high need districts at a relatively modest additional cost to the state, according to the CBC.

A copy of the full CBC report can be found at