Make way for … Son of CFE!

by E.J. McMahon |  | NY Torch

The Campaign for Fiscal Equity (CFE) litigation of 1993-2006 established the principle that New York State is constitutionally obligated to ensure funding of a “sound, basic education” for pupils in New York City schools.  Today, the state’s highest court cleared the way for a lawsuit claiming that funding levels for about a dozen of New York’s small city school districts doesn’t meet that requirement.

And so, here we go again.

The focus of Hussein et. al. v. State, as in CFE, is how much spending is enough to qualify as “sound” and “basic.”  In their original court filing, the plaintiffs claimed funding levels in their childrens’ districts were “grossly inadequate” to meet the CFE standard, giving rise to an “opportunity gap” the courts must remedy.

As it happens, the U.S. Census Bureau just last week issued the 2010 update to its Public Elementary-Secondary Education Finance Data series, which covers every state and school district in the country.  Once again, New York was at the top of the list, spending $18,618 per pupil– 75 percent above the national average. By national standards, the small cities involved in the CFE-related lawsuit are also big spenders. For example, the Albany City School District, where lead plaintiff Ayube Hussein’s child attends school, spent above the statewide average, at $19,457 per pupil in 2009-10.  That was high enough to rank in the 95th percentile nationally, and in the upper one-third within New York State.

What the court did

In a 6-1 decision, the Court of Appeals upheld lower court rulings that rejected the state’s attempt to dismiss the Hussein lawsuit as moot.

The ruling was only procedural, disposed of in two sentences, but that didn’t stop three of the seven judges from filing their own opinions reflecting continuing sharp divisions on the school funding doctrine as it was developed in Court of Appeals decisions between 1995 (CFE I), 2003 (CFE II) and 2006 (CFE III).

Judge Carmen Ciparick wanted to make it clear that she’s a huge fan of CFE I, which established the “sound basic” standard for funding adequacy. She called it “good law,” signalling that she’s ready to take a very expansive view of the court’s right to dictate funding levels:

If we declare that a sound basic education consists only of what the Legislature and Executive dictate, the scope of the State’s constitutional duty under the Education Article and, conversely, the scope of the constitutional rights of our schoolchildren, is limited to what those branches say it is. Abandoning CFE I would not only entrust the Legislature and Executive with the decidedly judicial task of interpreting the meaning of the Education Article but cast them in the role of being their own constitutional watchdogs.

Judge Susan Read, the lone dissenter today and in CFE II, made it clear she still thinks it’s a bad approach. The plaintiffs, she said, “seek increased funding on the theory that more money necessarily equals better student outcomes.”  This, she continued, it “implicates a host of policy questions.”

First and foremost, what exactly needs to be done to improve schools and student performance — especially, to close the achievement gap — and what is the price tag for these necessary measures, once settled upon? Given the extensive and continuing debate prompted by the publication of a “A Nation at Risk” nearly 30 years ago,3 the answers to these fundamental questions remain elusive. Additional, equally subjective and policy-laden fiscal questions inhere in this lawsuit. Just for starters, what size budget do the State’s revenues support in a particular year? [H]ow much of this revenue should the Legislature appropriate to support public education, as opposed to Medicaid or public assistance or other government programs and operations? [H]ow much should the public be taxed to support public education? [H]ow should the financial burden be shared by localities and the State?

Footnoting a quote from  John Adams (”Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence”), Judge Read concluded:

The “stubborn thing” at the heart of this case is that the way in which these public policy questions are resolved by the Governor and the Legislature will dictate how much school aid plaintiffs’ districts receive year to year in the future. We do plaintiffs no favor by keeping alive the illusion they can successfully end-run this fact via the courts.

Between the Ciparick and Read extremes, filing his own concurrence, was Judge Robert Smith, who was not yet on the court when it made it first two CFE decisions, but who made it clear he would have agreed with Read’s dissent in CFE II.  Nonetheless, Smith said he was unpersuaded by the state’s arguments for dismissing the lawsuit.

Smith noted that the court’s final CFE ruling (CFE III, in 2006) adhered to the earlier “sound basic” doctrine but “made clear that in applying those precedents, we will show great deference to executive choices as to how much money to put into public schools.”  Other states whose courts have “constitutionalized” school funding decisions have interpreted them to “leave broad scope” for executive and legislative decisions on specifics, he noted, adding:

Thus it is not clear to me that we cannot live with the CFE I decision. I must add that it is also not clear to me that we can.

For that matter, can the rest of us live with it?

If the small cities ultimately prevail, can “high need” rural districts be far behind in filing their own lawsuits?  In the absence of a full-blown boom (anyone betting on that?), the state would need to significantly raise taxes (well beyond even the level set under the temporary “millionaire tax”) to maintain the school funding levels effectively required by CFE in New York City, much less elsewhere.  Where is the money supposed to come from?

Will the courts recognize that the key to education quality is not the total amount spent, but howit is spent?  And if and when they ever do, will they also conceded that the question can only be answered (for better or worse) by the Governor and the Legislature?

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- E.J. McMahon is the Research Director at the Empire Center for Public Policy.