No. APL-2017-00002 To be argued by:
ANDREW W. AMEND
30 minutes requested
Supreme Court, New York County, Index No. 100274/13 (Cons.)
State of New York
Court of Appeals
NEW YORKERS FOR STUDENTS’ EDUCATIONAL RIGHTS (“NYSER”), et al.,
Plaintiffs-Respondents,
-against-
THE STATE OF NEW YORK, et al.,
Defendants-Appellants.
MIRIAM ARISTY-FARER, et al.,
Plaintiffs-Respondents,
-against-
THE STATE OF NEW YORK, et al.,
Defendants-Appellants.
REPLY BRIEF FOR APPELLANTS
BARBARA D. UNDERWOOD
Solicitor General
STEVEN C. WU
Deputy Solicitor General
ANDREW W. AMEND
Senior Assistant Solicitor General
PHILIP V. TISNE
Assistant Solicitor General
of Counsel
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Appellants
120 Broadway
New York, New York 10271
(212) 416-8020
(212) 416-8962 (facsimile)
Dated: May 12, 2017
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................ iii
PRELIMINARY STATEMENT ........................................................ 1
ARGUMENT .................................................................................... 4
POINT I
THE NYSER PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED AS
TO ALL SCHOOL DISTRICTS WHERE NO DEFICIENCIES IN
EDUCATIONAL SERVICES ARE ALLEGED ......................................... 4
A. The NYSER Complaint Identifies No Educational
Deficiencies in the Vast Majority of School
Districts, as Plaintiffs Acknowledge. ............................... 4
B. Plaintiffs’ New Theory Ignores the Core Education
Article Requirement to Plead Constitutional
Deficiencies in Educational Services in a Plaintiff’s
School District. ................................................................. 8
1. Education Article claims properly require
allegations and proof that a plaintiff is
actually being denied the opportunity for a
sound basic education. .............................................. 8
2. The alternative theory proposed by plaintiffs
raises grave separation-of-powers and public
policy concerns. ....................................................... 14
C. This Court’s Consistent Precedents Foreclose
Plaintiffs’ Argument. ..................................................... 17
ii
TABLE OF CONTENTS (cont’d)
Page
1. This Court’s Education Article decisions have
uniformly required plaintiffs to establish the
denial of minimally adequate educational
services. ................................................................... 17
2. Plaintiffs’ attempt to derive a contrary rule
from CFE is flatly contradicted by the facts
and holdings of those cases..................................... 21
D. Plaintiffs Also Fundamentally Misconstrue the
Adoption of Foundation Aid. .......................................... 25
POINT II
THE ARISTY-FARER PLAINTIFFS’ SURVIVING CLAIM SHOULD
BE DISMISSED IN ITS ENTIRETY ................................................... 33
CONCLUSION ............................................................................... 36
iii
TABLE OF AUTHORITIES
Cases Page(s)
511 W. 232nd Owners Corp. v. Jennifer Realty Co.,
98 N.Y.2d 144 (2002) ................................................................... 7
Abbott ex rel. Abbott v. Burke,
206 N.J. 332 (2011) .............................................................. 11, 12
Bd. of Educ., Levittown Union Free Sch. Dist.
v. Nyquist,
57 N.Y.2d 27 (1982) ............................................................. 10, 11
Campaign for Fiscal Equity, Inc. v. State,
100 N.Y.2d 893 (2003) ....................................................... passim
Campaign for Fiscal Equity, Inc. v. State,
8 N.Y.3d 14 (2006) ............................................................. passim
Campaign for Fiscal Equity, Inc. v. State,
86 N.Y.2d 307 (1995) ............................................................. 5, 17
Hain v. Jamison,
28 N.Y.3d 524 (2016) ................................................................... 7
Hotel Dorset Co. v. Tr. for Cultural Res. of City of N.Y.,
46 N.Y.2d 358 (1978) ................................................................. 29
Hussein v. State,
19 N.Y.3d 899 (2012) ........................................................... 18, 25
Maisto v. State,
2016 N.Y. Slip Op. 26463
(Sup. Ct. Albany County Sept. 19, 2016) .................................. 27
N.Y. Civ. Liberties Union v. State,
4 N.Y.3d 175 (2005) ................................................... 8, 12, 19, 20
iv
TABLE OF AUTHORITIES (cont’d)
Cases Page(s)
N.Y. State Ass’n of Small City Sch. Dists., Inc.
v. State,
42 A.D.3d 648 (3d Dep’t 2007) ................................................... 12
N.Y. State United Teachers ex rel. Magee v. State,
140 A.D.3d 90 (3d Dep’t 2016) ................................................... 19
N.Y. State United Teachers ex rel. Magee v. State,
28 N.Y.3d 915 (2017) ................................................................. 19
N.Y. State United Teachers ex rel. Magee v. State,
28 N.Y.3d 978 (2016) ................................................................. 19
Paynter v. State,
100 N.Y.2d 434 (2003) ....................................................... passim
Reform Educ. Fin. Inequities Today (R.E.F.I.T.)
v. Cuomo,
86 N.Y.2d 279 (1995) ....................................................... 9, 17, 18
Laws
N.Y. Const. art. XI, § 1 ................................................................. 1, 9
Ch. 53, 2013 N.Y. Laws (L.R.S.) .................................................... 32
Ch. 53, 2014 N.Y. Laws (L.R.S.) .................................................... 32
Ch. 53, 2016 N.Y. Laws (L.R.S.) .................................................... 31
Ch. 61, 2015 N.Y. Laws (L.R.S.) .................................................... 32
Education Law § 3602 .............................................................. 31, 32
Miscellaneous Authorities
3 Charles Z. Lincoln, The Constitutional History of New
York (1906) ................................................................................... 9
v
TABLE OF AUTHORITIES (cont’d)
Miscellanous Authorities Page(s)
3 Revised Record, New York State Constitutional
Convention 1894 (1900) ............................................................... 9
David D. Siegel, Siegel’s New York Practice § 208
(5th ed. Jan. 2017 update) ......................................................... 10
Governor Andrew M. Cuomo, Press Release, Governor
Cuomo Announces Passage of the FY 2018 State
Budget (Apr. 10, 2017), https://www.governor.
ny.gov/news/governor-cuomo-announces-passage-fy-
2018-state-budget ................................................................ 32, 33
N.Y. Senate, Press Release, Senate Passes 2017-18
State Budget that Protects Taxpayers, Provides
Record Investments in Clean Water and Local
Schools, and Helps Make NY More Affordable for
Individuals, Families, and Businesses (Apr. 9, 2017),
https://www.nysenate.gov/newsroom/articles/senate-
passes-2017-18-state-budget-protects-taxpayers-
provides-record-investments ..................................................... 32
N.Y. Senate, Staff Analysis of the 2007-08 Executive
Budget (Feb. 2007) ..................................................................... 28
N.Y. State Div. of the Budget, Description of 2011-12
New York State School Aid Programs (Oct. 31,
2011), available at https://www.budget.ny.gov/pubs/
archive/fy1112archive/enacted1112/11-
12SchoolAid.pdf ......................................................................... 31
N.Y. State Div. of the Budget, Description of 2015-16
New York State School Aid Programs (Sept. 15,
2015), available at https://www.budget.ny.gov/pubs/
archive/fy1516archive/enacted1516/1516NYSSchool
AidPrograms.pdf ........................................................................ 31
vi
TABLE OF AUTHORITIES (cont’d)
Miscellaneous Authorities Page(s)
Paul Francis, Opinion, The sham debate on school
spending: Stop holding Gov. Cuomo, who’s invested
well in K-12 education, to a made-up target, N.Y.
Daily News, Jan. 25, 2017,
http://www.nydailynews.com/opinion/sham-debate-
school-spending-article-1.2954819 ............................................ 29
Press Release, N.Y. State Governor, Unprecedented
Expansion of School Aid Tied to Accountability (Jan.
31, 2007),
http://worldcat.org/arcviewer/1/AO%23/2008/03/17/0
000083244/viewer/file183.html ................................................. 28
U.S. Census Bureau, Public Education Finances: 2014
(June 2016), https://www.census.gov/content/
dam/Census/library/publications/2016/econ/g14-
aspef.pdf ..................................................................................... 32
PRELIMINARY STATEMENT
The Education Article of the New York Constitution, N.Y.
Const. art. XI, § 1, guarantees students the opportunity for a sound
basic education. The denial of adequate educational services is thus
a critical element of any Education Article claim, one that must be
pleaded and proven to warrant judicial entry into the intricate and
sensitive policy arena of public school funding. Defendants’ opening
brief showed that plaintiffs’ failure to comply with this basic
pleading requirement mandates the dismissal of all of their claims
for increased funding to the State’s nearly 700 school districts
outside New York City and Syracuse: plaintiffs allege scant or no
facts about the educational services provided to students in those
districts.1 Plaintiffs do not rebut that showing.
Instead, plaintiffs posit a new species of Education Article
claim: one that would entitle them to judicial relief based purely on
1 As noted in our opening brief (at 1 n.1), the State does not
ask this Court to review the Appellate Division’s determination
that the NYSER plaintiffs adequately identified educational
deficiencies in New York City and Syracuse, but reserves its right
to contest the adequacy of plaintiffs’ allegations and evidence as to
these districts in future phases of this litigation.
2
the process by which the Legislature considers how to allocate
school aid, regardless of whether students’ educational
opportunities are actually being harmed as a result of that process.
Plaintiffs’ novel theory is that the Legislature and Governor have a
freestanding, threshold “duty to ascertain” the costs of meeting the
constitutional minimum before appropriating school aid—a duty
plaintiffs claim is judicially enforceable without any showing of
constitutionally deficient educational services. But this Court’s
clear precedents—and the compelling separation-of-powers and
public policy concerns that underlie them—preclude any
understanding of the Education Article that would permit such
naked judicial supervision of the legislative process. If plaintiffs
disagree with the manner in which the Executive and the
Legislature fund schools in the state, their recourse is with the
political branches, not with this Court.
Moreover, while plaintiffs attempt to ground their theory in
the Campaign for Fiscal Equity (“CFE”) litigation and the State’s
2007 legislation creating Foundation Aid, plaintiffs fundamentally
misconstrue both the litigation and the legislation. Indeed, CFE
3
undermines rather than supports plaintiffs’ theory: in that case,
this Court declined to supervise the legislative process even after
the deficiency of educational services in New York City had been
definitively proven. And plaintiffs wrongly treat Foundation Aid as
a constitutional floor rather than an effort by the Legislature to
exceed the constitutional minimum.
All of plaintiffs’ arguments thus founder on this Court’s
consistent holdings that allegations of constitutional deficiencies in
educational services are required to state a claim under the
Education Article, and that it is not the function of the courts to
substitute their fiscal policy judgments for those of the Executive
and the Legislature even where a violation is established.
4
ARGUMENT
POINT I
THE NYSER PLAINTIFFS’ CLAIMS SHOULD
BE DISMISSED AS TO ALL SCHOOL DISTRICTS
WHERE NO DEFICIENCIES IN EDUCATIONAL
SERVICES ARE ALLEGED
A. The NYSER Complaint Identifies No
Educational Deficiencies in the Vast
Majority of School Districts, as Plaintiffs
Acknowledge.
Defendants’ opening brief demonstrated two key points that
plaintiffs fail to rebut and that together require dismissal of nearly
all of plaintiffs’ claims.
First, defendants showed that plaintiffs had not alleged denial
of the opportunity to receive a minimally adequate sound basic
education—the irreducible predicate for relief under this Court’s
consistent Education Article decisions—in any of the State’s nearly
700 school districts aside from New York City and Syracuse. Br. for
Appellants (“App. Br.”) at 31-43.
Second, defendants showed that the First Department erred
in holding that allegations of constitutionally deficient services in
one or two school districts can, standing alone, support a statewide
claim. Id. at 43-48. That theory rests on the unwarranted
5
assumption that proof of a constitutional violation in a single
district will require funding adjustments as to all other districts—
a faulty premise at odds with the crucial measure of local control
over education enshrined in the Constitution, and with this Court’s
holdings in its CFE decisions.2 Id.
The NYSER plaintiffs do not seriously contest either showing
by defendants. Concerning their lack of allegations about districts
outside New York City and Syracuse, they assert in passing that
their complaint “alleges substantial deficiencies in the inputs
currently provided to students” in “seven other representative
districts around the state.” Br. for Plaintiffs-Respondents (“Resp.
2 The CFE decisions involved litigation over the constitutional
adequacy of New York City’s public schools that spanned from 1993
to 2006 and ended up in this Court on three separate occasions. On
the first, this Court held that plaintiffs had adequately pleaded an
Education Article claim. Campaign for Fiscal Equity, Inc. v. State,
86 N.Y.2d 307, 319 (1995) (“CFE I”). On the second, this Court held
that plaintiffs had proved their claim at trial and directed the State
to estimate the cost of providing a sound basic education to New
York City’s public school students. Campaign for Fiscal Equity, Inc.
v. State, 100 N.Y.2d 893, 902-03 (2003) (“CFE II”). On the third, it
held that the State had reasonably estimated the amount of the
necessary increased funding, and that the State’s estimate was
entitled to judicial deference. Campaign for Fiscal Equity, Inc. v.
State, 8 N.Y.3d 14, 19-20 (2006) (“CFE III”).
6
Br.”) at 4. But this statement is simply incorrect: the complaint does
not contain a single factual allegation about a single educational
input—i.e., teaching, facilities, and instrumentalities of learning,
see Paynter v. State, 100 N.Y.2d 434, 440 (2003)—specific to a single
district outside New York City and Syracuse.
The NYSER plaintiffs also do not meaningfully defend the
First Department’s flawed reasoning. Indeed, they concede that the
“Appellate Division did not discuss” the “primary Education Article
theory” they advance in this Court. Resp. Br. at 28. And they
acknowledge that they would try their case under the First
Department’s holding—which requires them to actually prove
constitutional deficiencies in educational services in at least one
district—only “[i]f given no choice.” Id. at 59.
What the NYSER plaintiffs seek instead is this Court’s
endorsement of a completely new theory of Education Article claim
based entirely on the notion that the State has a self-executing
“threshold duty” to “ascertain” the cost of providing minimally
adequate educational services. Resp. Br. at 30. On this basis, the
NYSER plaintiffs argue that they are not required to establish
7
constitutionally deficient educational services (e.g., Resp. Br. at 32),
because the Education Article purportedly requires the State to
enact a “constitutionally-compliant funding process”—a theory that
supposedly warrants judicial enforcement even if there is no
showing of inadequate educational services (Resp. Br. at 33).
Plaintiffs new theory fails for several reasons. As a threshold
point, it is outside the scope of this appeal. As plaintiffs
acknowledge (Resp. Br. at 28), the Appellate Division did not
endorse their new theory of Education Article liability—as proven
by the fact that plaintiffs seek the affirmative relief of having this
Court to modify the order below to endorse their theory (id. at 58-
59; see also id. at 27 (arguing that the Appellate Division
“incorrectly” interpreted CFE)). Plaintiffs were thus aggrieved by
the Appellate Division’s implicit rejection of that theory in its order,
and their decision not to seek review of the order in this Court
means that the propriety of their new Education Article theory is
outside the scope of review on this appeal. See, e.g., Hain v.
Jamison, 28 N.Y.3d 524, 534 n.3 (2016); 511 W. 232nd Owners Corp.
v. Jennifer Realty Co., 98 N.Y.2d 144, 151 n.3 (2002).
8
In any event, for the reasons explained below, plaintiffs’ new
theory has no support in precedent and runs contrary to important
principles of constitutional law and public policy.
B. Plaintiffs’ New Theory Ignores the Core
Education Article Requirement to Plead
Constitutional Deficiencies in Educational
Services in a Plaintiff’s School District.
1. Education Article claims properly require
allegations and proof that a plaintiff is
actually being denied the opportunity for
a sound basic education.
The NYSER plaintiffs’ purely process-based theory
misunderstands the entitlement that the Education Article serves
to protect. As explained in our opening brief (at 31-40), and as
further explained below (see infra at 17-25), the purpose of the
Education Article is to guarantee adequate educational services.
Allegations of the absence of such services are thus critical to any
Education Article claim. As this Court has explained, such a claim
is “[f]undamentally” composed of two elements, both of which are
required to obtain judicial relief: “the deprivation of a sound basic
education, and causes attributable to the State.” N.Y. Civ. Liberties
Union v. State (“NYCLU”), 4 N.Y.3d 175, 178-79 (2005).
9
The requirement to plead constitutionally deficient
educational services flows directly from these requirements. It
reflects the substantive scope of the Education Article, the ultimate
goal of which is to ensure that the State’s children “may be
educated,” not to police the manner in which the Legislature
deliberates over matters of school funding.3 N.Y. Const. art. XI, § 1.
And there is nothing exceptional about requiring a plaintiff to
plead, in nonconclusory terms, an essential element of a claim for
relief; indeed, it is hornbook law that the failure to allege an
3 The history of the Education Article reinforces this point.
When the provision was adopted in 1894, educational services were
provided by thousands of local school districts “with varying
amounts of property wealth which offered significantly disparate
educational opportunities.” Reform Educ. Fin. Inequities Today
(R.E.F.I.T.) v. Cuomo, 86 N.Y.2d 279, 284 (1995); see generally 3
Charles Z. Lincoln, The Constitutional History of New York 487-547
(1906). The purpose of the Education Article was not to equalize
these educational offerings, but to require the State to ensure
minimum educational services in school districts “where the
common schools are not adequate and not numerous enough to
provide education for all the children who desire to avail themselves
of them.” 3 Revised Record, New York State Constitutional
Convention 1894, at 695 (1900) (statement of Henry Hill). The
premise of the Education Article is thus that the State has a duty
“to provide funding sufficient to bring the educational inputs locally
available up to a minimum standard.” Paynter, 100 N.Y.2d at 442.
10
essential element of a claim requires its dismissal. See, e.g., David
D. Siegel, Siegel’s New York Practice § 208 (5th ed. Jan. 2017
update). That pleading requirement is particularly important here
because the denial of an opportunity for a sound basic education is
the essential constitutional injury that would warrant judicial relief
in any Education Article litigation. Plaintiffs’ proposal would
reverse the ordinary “order of operations” (Resp. Br. at 4, 32), in
which a constitutional injury must be pleaded and proven before
courts intervene in policy matters ordinarily left to the political
branches.
Indeed, this Court has already expressly rejected the notion
that the Education Article allows an action directed solely at the
process by which the State allocates public education funding,
without any showing that the outcome of that process is to deny
plaintiffs the opportunity to receive a sound basic education. See
Bd. of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 57 N.Y.2d
27, 48 n.7 (1982) (“Levittown”). As this Court observed, if the
services available in plaintiffs’ schools are constitutionally
adequate, it is “immaterial” under the Education Article how the
11
State appropriates school aid or what combination of funding
provides the requisite educational services. Id.
The NYSER plaintiffs assert that a requirement to plead
deficient educational services in each school district in the State
would be onerous and impractical. Resp. Br. at 46. But that
assertion does not support plaintiffs’ theory that they may pursue
a state-wide Education Article claim without proving constitutional
deficiencies in any school district. The requirement to plead and
prove inadequate educational opportunities has repeatedly been
upheld as essential to an Education Article claim.4 See, e.g.,
4 Moreover, contrary to plaintiffs’ suggestion (Resp. Br. at 46
n.12), the requirement that a party plead and prove a constitutional
injury as to a specific school district is not unprecedented in this
context: the New Jersey Supreme Court recently applied the same
principle in its long-running education funding litigation. See
Abbott ex rel. Abbott v. Burke, 206 N.J. 332, 369-72 (2011). The
question there was whether the State could permissibly reduce an
education funding formula that (unlike Foundation Aid) had been
specifically ordered as a remedy for proven constitutional violations
in certain districts, but adopted statewide. See id. at 347-52. The
Court held that full funding of the formula was required only in
those districts where violations had been proven. See id. at 369-72.
As the Court observed, “[w]hile substandard educational
conditions—perhaps of constitutional dimension—may exist in
districts other than those that have been designated as Abbott
12
Paynter, 100 N.Y.2d at 441; N.Y. State Ass’n of Small City Sch.
Dists., Inc. v. State, 42 A.D.3d 648, 651-52 (3d Dep’t 2007)
(aggregate data insufficient to state claim absent facts about
plaintiffs’ districts or information that those districts were “actually
experiencing the problems reflected by the aggregate statistics”).
The NYSER complaint does not meet this basic requirement
as to any district outside New York City and Syracuse. Nor can its
allegations as to those two districts be extrapolated to other
districts. In effect, the complaint indiscriminately treats all of the
school districts in the State as though their educational services
were no different from those in New York City and Syracuse. But
the complaint offers no plausible basis to infer that this is so, and
the drawing of any such inference would be contrary to both
common sense and the undisputed fact that districts exercise
considerable local control over public education. See NYCLU, 4
districts, this Court has never stipulated any remedy, nor even
found a constitutional violation, for children in non-Abbott
districts.” Id. at 371. Thus, relief for such non-Abbott districts was
unavailable because the court’s jurisdiction was “limited to
rectification of the constitutional violation suffered by the Abbott
litigants.” Id.
13
N.Y.3d at 181-82; also CFE II, 100 N.Y.2d 893, 928-29 (noting New
York City and Syracuse stand on different footing from almost all
other districts in the State because of a lack of ability to levy
property taxes to fund public schools). As defendants’ opening brief
showed (at 43-45), the State’s nearly 700 different school districts
offer a broad variety of educational services and experiences,
ranging from New York City with more than one million students
to upstate rural districts with only a few hundred students.
Plaintiffs thus offer no plausible basis to infer that all districts
are suffering constitutional deficiencies in educational services.
Indeed, plaintiffs’ own allegations indicate that adequate or
superior educational services are being provided in a great many
districts: plaintiffs themselves cite data indicating that in 2013, the
statewide high school graduation rate for students entering ninth
grade in 2008 was between 85 and 94 percent in school-district
categories educating large numbers of students. (R. 177 [¶ 139].)
Their scant pleadings accordingly cannot survive a motion to
dismiss.
14
2. The alternative theory proposed by
plaintiffs raises grave separation-of-
powers and public policy concerns.
Plaintiffs’ assertion that the Education Article entitles them
to challenge the manner in which the Legislature deliberates school
funding without proving any constitutional injury also raises
serious separation-of-powers and public policy concerns.
The NYSER plaintiffs propose that this Court require the
Legislature to follow a particular “needs-based funding process”
(Resp. Br. at 31), untethered to any showing that students are being
denied minimally adequate educational services. They contend that
this rule will not require courts to overstep the judicial function or
“wade into the weeds” of any given funding scheme (Resp. Br. at
53). But plaintiffs identify no standard by which courts are
equipped to determine whether the Legislature’s deliberative
process is sufficiently attentive to students’ needs. Such
indeterminacy will inevitably result in frequent and protracted
litigation over the application of that standard to specific budget
proposals or modifications, and—even worse—to judicial directives
that the Legislature deliberate in a particular way in establishing
15
school funding. The interference with the legislative process that
would attend such litigation or judicial relief would be enormous.
Indeed, this Court has repeatedly admonished that the
Judiciary “should not usurp” the prerogatives of the Legislature
and the Executive in determining how to fund public schools, even
where an Education Article violation has been established. CFE III,
8 N.Y.3d at 28-29. In CFE II, this Court rejected plaintiffs’
invitation “to initiate a legislative/judicial dialogue by issuing
guidelines to the Legislature for restructuring the system.” 100
N.Y.2d at 925. And it took pains to craft a remedy that would be “an
effort to learn from our national experience and fashion an outcome
that will address the constitutional violation instead of inviting
decades of litigation.” Id. at 931. Likewise, in CFE III, this Court
reiterated that “the Judiciary has a duty to defer to the Legislature
in matters of policymaking, particularly in a matter so vital as
education financing.” 8 N.Y.3d at 28 (quotation marks omitted). See
also infra at 21-25 (further discussing CFE).
This Court thus emphasized that the proper role of the
judiciary is to “declare the vested rights of a specifically protected
16
class of individuals,” and not to oversee “the manner by which the
State addresses complex societal and governmental issues.” CFE
III, 8 N.Y.3d at 28 (quotation marks omitted). “When we review the
acts of the Legislature and the Executive, we do so to protect rights,
not to make policy.” Id. Plaintiffs’ theory would overlook this critical
point by allowing judicial relief based solely on the Legislature’s
noncompliance with plaintiffs’ views of what constitutes sound
education-financing policy-making, without any showing of a
violation of students’ educational rights. Plaintiffs’ theory would
thus embroil the judiciary in exactly the type of policy formulation
and enforcement that this Court has repeatedly emphasized is
committed to the Legislature and the Executive. Such an outcome
would be inconsistent both with “the limited access of the Judiciary
to the controlling economic and social facts” involved in public
education financing, and with this Court’s abiding “respect for the
separation of powers upon which our system of government is
based.” Id. (quotation marks omitted).
17
C. This Court’s Consistent Precedents
Foreclose Plaintiffs’ Argument.
1. This Court’s Education Article decisions
have uniformly required plaintiffs to
establish the denial of minimally
adequate educational services.
This Court’s decisions reaffirm that allegations of inadequate
educational services are indispensable to an Education Article
claim. After Levittown (discussed above, see supra at 10-11), this
Court’s next major pronouncements on the Education Article came
in R.E.F.I.T., 86 N.Y.2d 279, and CFE I, 86 N.Y.2d 307, companion
cases decided the same day. This Court held that the plaintiffs in
CFE I stated a claim specifically because they had alleged that
“minimally acceptable educational services and facilities” were not
being provided in their school districts. 86 N.Y.2d at 315-16; see also
id. at 315 (State’s duty is “to ensure the availability of a sound basic
education”). Conversely, this Court dismissed the complaint in
R.E.F.I.T. for failure to allege such educational deficiencies,
explaining that the plaintiffs had failed to state a claim that their
districts were providing “less than a sound basic education, which
18
is all that they are guaranteed by our Constitution.” 86 N.Y.2d at
285 (emphasis added).
This Court again emphasized the requirement to plead a
denial of minimally adequate educational services in 2003, when it
decided Paynter and CFE II, 100 N.Y.2d 893, on the same day. In
CFE II, this Court sustained Education Article claims based on
proof that educational services in the New York City school district
were in fact inadequate to afford students there an opportunity to
obtain a sound basic education. See 100 N.Y.2d at 908-14. But the
Court affirmed the dismissal of Education Article claims in Paynter,
where plaintiffs did not allege inadequate educational services and
instead argued that they were not “required to allege inadequate
educational services to state a claim.” Paynter, 100 N.Y.2d at 441
(quotation marks omitted). This Court rejected their argument,
stating that their Education Article claims failed as a matter of law
“without allegations that the State somehow fails in its obligation
to provide minimally acceptable educational services.” Id.
This Court’s other Education Article precedents are in accord.
See Hussein v. State, 19 N.Y.3d 899 (2012), aff’g 81 A.D.3d 132, 136
19
(3d Dep’t 2011) (upholding sufficiency of complaint “replete with
detailed data” illustrating “glaring deficiencies in the current
quality of the schools in plaintiffs’ districts”); NYCLU, 4 N.Y.3d at
180 (affirming dismissal of complaint that alleged shortcomings in
individual schools but did not allege “any district-wide failure”).
Plaintiffs do not and cannot cite any decision of this Court
upholding an Education Article claim without any requirement of
pleading or proof that plaintiffs’ school districts are denying them
minimally adequate educational services. Indeed, this Court
recently determined that a case in which plaintiffs attempted to
assert such a claim was not worthy of its review.5
5 In New York State United Teachers ex rel. Magee v. State,
plaintiffs did not seek “to establish any specific failure to provide a
sound basic education,” but rather challenged legislation restricting
localities’ ability to levy taxes for educational purposes (some of the
same legislation plaintiffs challenge here). See 140 A.D.3d 90, 95-
96 (3d Dep’t 2016) (quotation marks and punctuation omitted),
appeal dismissed, 28 N.Y.3d 978 (2016), and lv. denied, 28 N.Y.3d
915 (2017). The Appellate Division dismissed plaintiffs’ Education
Article claims, and, although one justice dissented, this Court
dismissed plaintiffs’ appeal as of right on the basis that no
substantial constitutional question was directly involved. See 28
N.Y.3d at 978. This Court subsequently denied discretionary leave
to appeal. See 28 N.Y.3d at 915.
20
The NYSER plaintiffs nonetheless wrongly contend that this
Court’s precedents do not bar their novel, process-based Education
Article claim, because this Court “has not dictated CFE’s inputs-
outputs-causation model as the only way to plead an Education
Article claim.” Resp. Br. at 49. Plaintiffs’ argument misses the
point. This Court’s precedents make clear that the fundamental,
and indispensable, predicate for relief under the Education Article
is that educational services in a plaintiff’s school district are
inadequate. To be sure, this Court has not definitively stated all of
the ways that a plaintiff may allege and prove this fundamental
predicate. See Paynter, 100 N.Y.2d at 441; see also NYCLU, 4
N.Y.3d at 180 n.2. But it has never held or suggested that a plaintiff
could obtain relief under the Education Article without alleging and
proving that the educational services in the plaintiff’s school
district are constitutionally inadequate.
21
2. Plaintiffs’ attempt to derive a contrary
rule from CFE is flatly contradicted by
the facts and holdings of those cases.
Plaintiffs place particular emphasis on CFE II, from which
they purport to derive the State’s supposed freestanding obligation
to “ascertain the ‘actual costs’” of providing minimally adequate
educational services in every school district in the State. Resp. Br.
at 2 (quoting CFE II, 100 N.Y.2d at 930); see id. at 4, 32. CFE II,
however, conclusively forecloses any such obligation. In that
decision, this Court was faced with the difficult question of what
remedy to direct for the Education Article violation that had been
established as to New York City. In that context, this Court directed
the State, as an initial step, to “ascertain the actual cost of
providing a sound basic education in New York City.” CFE II, 100
N.Y.2d at 930 (emphasis added).
In doing so, this Court placed the State under a narrow, one-
time-only, remedial obligation to calculate the costs of achieving
constitutional compliance in a single school district where
constitutional noncompliance had already been proven at an
extensive trial. These circumstances refute plaintiffs’ attempt to
22
read into CFE II a generalized, affirmative obligation that the State
“ascertain the ‘actual costs’” of providing minimally adequate
educational services across the entire State as a prerequisite to
compliance with the Education Article. Indeed, this Court rejected
the trial court’s directive that the State implement statewide
reforms to the public education funding system. See id. at 929; see
also CFE III, 8 N.Y.3d at 21 (“[W]e instructed the State to ascertain
the actual cost of providing a sound basic education in New York
City, rather than the state as a whole.”).
And, while this Court in CFE II criticized various aspects of
the State’s then-existing public education funding system, its
comments were observations on how that system had failed New
York City, as the trial had demonstrated. See CFE II, 100 N.Y.2d
at 929-30; see also id. at 932 (emphasizing “unique combination of
circumstances” allowing plaintiffs to prevail as to New York City
schools). The Court never suggested that the State was under a
judicially enforceable obligation to adopt a “needs-based” education
funding system for New York City—let alone for the entire State
(Resp Br. at 37). Indeed, this Court struck additional trial-court
23
directives to reform the State’s funding scheme to “ensure the City
‘sustained and stable funding’” and to make the funding process “as
transparent as possible.” CFE II, 100 N.Y.2d at 928, 930. And it
explained that once the State had fulfilled its directive to ascertain
the costs of constitutional compliance in New York City, the
question would be whether educational “inputs and outputs
improve to a constitutionally acceptable level.” Id. at 930. “Other
questions about the process—such as how open it is and how the
burden is distributed between the State and City—are matters for
the Legislature desiring to enact good laws.” Id. (emphasis added).
In CFE III, this Court reaffirmed the principle that an
Education Article claim must be based on actual educational
deficiencies, rather than some failure of legislative deliberation.
This Court there reviewed the remedial calculation the State had
been directed to perform in CFE II—i.e., a calculation of the costs
of achieving constitutional compliance in New York City only—and
granted the State’s request to declare that its estimate of
approximately $1.93 billion in increased annual operating funds for
24
the City was reasonable and adequate.6 See CFE III, 8 N.Y.3d at
27.
In doing so, this Court reaffirmed that the State was not
obligated to undertake further efforts to calculate the costs of
providing the opportunity for a sound basic education, even as to
New York City. This Court upheld the Appellate Division’s rejection
of a trial court requirement that the State perform such “costing-
out” studies every four years going forward.7 See CFE III, 8 N.Y.3d
6 The remedy in CFE III was narrow and was not, as the
Appellate Division suggested (R. 377-378), a judicially enforceable
mandate to expend additional state funds. The Appellate Division
had ordered such relief, but at the urging of the State, see Br. for
Defs.-Resp’ts-Cross-Appellants at 1-4, 58-71, CFE III, 8 N.Y.3d 14
(Index No. 111070/93), this Court struck that relief and replaced it
with a declaration “that the constitutionally required funding for
the New York City School District includes additional operating
funds in the amount of $1.93 billion.” CFE III, 8 N.Y.3d at 31.
7 The out-of-state cases cited by plaintiffs (Resp. Br. at 36-37)
are thus irrelevant: regardless of how other States have defined the
requirements of their Constitutions, CFE III establishes that New
York’s Constitution does not require the State to undertake cost
studies as a prerequisite to fulfilling its obligations the Education
Article. In addition, a number of other States that, like New York,
have recognized claims for a failure to provide minimally adequate
educational opportunities, have also taken CFE’s approach of
showing “great deference to executive and legislative choices as to
how much money to put into public schools, and how to allocate that
25
at 25-26, 32. Plaintiffs here, however, effectively ask this Court to
read into the Constitution a requirement that the legislative and
executive branches perform the same task—calculating the
minimal cost of constitutional compliance—for all districts in the
State in perpetuity. Such a requirement cannot be reconciled with
CFE, much less derived from it.
D. Plaintiffs Also Fundamentally Misconstrue
the Adoption of Foundation Aid.
Finally, just as plaintiffs misplace their reliance on CFE, they
misplace their reliance on the State’s 2007 legislation creating the
Foundation Aid formula. The principal flaw in plaintiffs’ reasoning
is that it mischaracterizes Foundation Aid as the State’s only
attempt to fulfill its “self-executing, threshold duty” to ascertain
and allocate the costs of providing minimally adequate educational
services across the State. Plaintiffs argue that because the State
money.” Hussein, 19 N.Y.3d at 908-09 (Smith, J., concurring); see
also id. at 911 (Read, J., concurring) (“Other state courts in recent
years have dismissed new adequacy claims outright, expressing
reluctance to risk entanglement with the prerogatives of the elected
branches.”).
26
did not fully fund Foundation Aid at the levels initially envisioned
in 2007, it necessarily violated a constitutional duty. But that
reasoning is flawed for multiple reasons.
To begin with, plaintiffs are wrong to characterize Foundation
Aid as a remedial measure required by CFE. As noted above, and
explained in defendants’ opening brief (at 54-57), CFE III set a
remedial benchmark as to New York City only—not the entire
State—and approves the Legislature’s determination that
approximately $1.93 billion from all sources (state, local, and
federal) was a reasonable estimate of the needed increase in New
York City’s operating funds. As demonstrated by the NYSER
complaint itself, New York City’s public schools have received
operating funds well exceeding that remedial estimate, even taking
into account the Legislature’s modifications to Foundation Aid—a
fact that defendants explained in their opening brief (at 58-62) and
that plaintiffs do not dispute. That fact alone disposes of any notion
that the full funding of Foundation Aid as envisioned in 2007 was
necessary to satisfy CFE.
27
Moreover, plaintiffs’ pleadings make clear that the
Foundation Aid formula was more generous than the methodology
this Court expressly approved in CFE III, thus precluding any
inference that Foundation Aid itself set a new (and higher)
constitutional floor. This Court there endorsed the conclusion that
“$2.5 billion in additional revenues statewide (equating to $1.9
billion in New York City) was a valid determination of the cost of
providing a sound basic education in New York City,” and it noted
that then-Governor Pataki’s proposal to provide operating funds
beyond that level “amounted to a policy choice to exceed the
constitutional minimum.” CFE III, 8 N.Y.3d at 27. Plaintiffs do not
dispute that Foundation Aid was designed to provide still “more
funding than” Governor Pataki’s proposal (Resp. Br. at 42), which
itself exceeded “the constitutional minimum,” CFE III, 8 N.Y.3d at
27; see also Maisto v. State, 2016 N.Y. Slip Op. 26463, at *6-*7 (Sup.
Ct. Albany County Sept. 19, 2016) (rejecting argument that State
had failed to comply with Constitution simply because it did not
fully implement Foundation Aid as originally envisioned in 2007).
28
Plaintiffs nevertheless posit that as a factual matter, the
Legislature and Governor understood Foundation Aid to a be
recalculation of the constitutional minimum. But contemporaneous
documents indicate otherwise. Governor Spitzer stated in 2007 that
his Executive Budget (which introduced Foundation Aid) “provides
more than sufficient funds to address the school funding needs
highlighted by the CFE lawsuit, increasing state funds directed to
New York City schools by $3.2 billion over the next four years.”8
Likewise, the Senate’s February 2007 Staff Analysis of the 2007-
2008 Executive Budget noted that “the Executive far surpasses the
funding requirements” of CFE, and that “[t]he Executive’s approach
goes far beyond the November 2006 Court of Appeals ruling.”9
Similarly, Governor Spitzer’s budget director from 2006 to 2008
recently confirmed that the reforms proposed by the Governor and
8 Press Release, N.Y. State Governor, Unprecedented
Expansion of School Aid Tied to Accountability (Jan. 31, 2007),
http://worldcat.org/arcviewer/1/AO%23/2008/03/17/0000083244/vie
wer/file183.html.
9 N.Y. Senate, Staff Analysis of the 2007-08 Executive Budget
7, 66 (Feb. 2007) (Addendum (ADD) 23-24).
29
adopted by the Legislature in 2007 called for “aspirational funding
increases” that were not required by CFE.10
Furthermore, regardless of whether the Legislature and
Governor understood the school aid formulas adopted in 2007 to be
an estimate of the minimal spending necessary to satisfy the
Constitution, or instead to be a policy choice to exceed the
minimum, plaintiffs cannot state a claim for relief merely by
alleging that subsequent Legislatures and Governors modified
those formulas. State aid is only one component of overall
educational funding, and the judgments of the political branches
starting in 2009 are entitled to the same presumption of
constitutionality that attaches to the 2007 legislation upon which
plaintiffs rely. App. Br. at 49-54; see also, e.g., Hotel Dorset Co. v.
Tr. for Cultural Res. of City of N.Y., 46 N.Y.2d 358, 370 (1978)
(noting presumption “that the Legislature has investigated and
10 Paul Francis, Opinion, The sham debate on school spending:
Stop holding Gov. Cuomo, who’s invested well in K-12 education, to
a made-up target, N.Y. Daily News, Jan. 25, 2017,
http://www.nydailynews.com/opinion/sham-debate-school-
spending-article-1.2954819.
30
found facts necessary to support” legislation and “the existence of a
situation showing or indicating its need or desirability”).
Indeed, the need for judicial deference is especially critical
here given that education financing implicates the State’s budget
plans, which this Court has recognized must be “patently
irrational” before “judicial deference will give way.” CFE III, 8
N.Y.3d at 29 (emphasis in original). Plaintiffs do not attempt to
plead that the State’s post-2008 modifications to its education
funding scheme are “patently irrational,” nor could any such claim
succeed. The Legislature acted for a singular, and compelling
reason: it faced an unprecedented budget gap precipitated by the
worst financial crisis to hit this State and Nation since the Great
Depression.
In addition, the State’s annual appropriations process
(referred to by plaintiffs half a dozen times as “three men in a room”
(Resp. Br. at 7, 12, 14, 15, 23, 52)) has in recent years involved
important steps to reduce the impact of various cost-cutting
measures adopted in the wake of the 2008-2009 crisis. For instance,
plaintiffs complain about the now-defunct Gap Elimination
31
Adjustment (or GEA, see App. Br. at 17), but every year between
2011 and 2016, the Legislature enacted annual Gap Elimination
Adjustment restorations, which effectively increased school
funding. See Education Law § 3602(17)(d)-(e). Specifically, these
restorations reduced the GEA’s funding cuts from $2.56 billion in
the 2011-2012 school year to $434 million in the 2015-2016 school
year, with many high-need school districts’ GEA almost completely
restored by 2015-2016—thus substantially restoring Foundation
Aid and other state aid.11 And the State has now eliminated the
Gap Elimination Adjustment altogether. Ch. 53, 2016 N.Y. Laws
(L.R.S.) at 172.
Similarly, plaintiffs complain about the Legislature’s
enactment of a measure known as the Allowable Growth Amount,
which helps ensure the State’s ability to fund school appropriations
by providing for growth in state education aid increases each year
11 See N.Y. State Div. of the Budget, Description of 2015-16
New York State School Aid Programs, at 2 (Sept. 15, 2015); N.Y.
State Div. of the Budget, Description of 2011-12 New York State
School Aid Programs, at 3 (Oct. 31, 2011).
32
based on the growth in the State’s total personal income as reflected
in annual data from the United States Department of Commerce.
See Education Law § 3602(1)(aa)-(gg), (17)-(18). But the Legislature
has repeatedly opted to exceed the growth limit.12
And, despite all of the measures plaintiffs complain of here,
New York continues to lead the Nation in public education funding,
which is at an all-time high. The State’s public education spending
of $20,610 per pupil surpasses that of all other States in the Nation,
and is 87 percent above the national average of $11,009.13
Moreover, the State’s enacted budget for 2017-2018 includes a
record allocation of $25.8 billion in school aid, an increase of $1.1
billion, or more than 4 percent, over the 2016-2017 level.14 In all,
12 See Ch. 53, § 1, 2013 N.Y. Laws (L.R.S.), at 159-74; Ch. 53,
§ 1, 2014 N.Y. Laws (L.R.S.), at 157-72; Ch. 61, § 1, 2015 N.Y. Laws
(L.R.S.), at 6-17.
13 See U.S. Census Bureau, Public Education Finances: 2014,
at 8 (June 2016), https://www.census.gov/content/dam/Census/
library/publications/2016/econ/g14-aspef.pdf.
14 Governor Andrew M. Cuomo, Press Release, Governor
Cuomo Announces Passage of the FY 2018 State Budget
(Apr. 10, 2017), https://www.governor.ny.gov/news/governor-
cuomo-announces-passage-fy-2018-state-budget; N.Y. Senate,
33
state education aid has increased by $6.2 billion, or 32 percent, over
the past six years.15
POINT II
THE ARISTY-FARER PLAINTIFFS’ SURVIVING
CLAIM SHOULD BE DISMISSED IN ITS ENTIRETY
As defendants’ opening brief demonstrated (App. Br. at 63),
the Aristy-Farer plaintiffs’ sole surviving claim should be dismissed
because the Aristy-Farer complaint fails to allege any of the
essential elements of an Education Article claim.
The Aristy-Farer plaintiffs do not dispute this point. Instead,
they argue that their complaint should not be dismissed because it
“alleges essentially the same substantive Education Article
violations pled in the NYSER Complaint concerning the State’s
Press Release, Senate Passes 2017-18 State Budget that Protects
Taxpayers, Provides Record Investments in Clean Water and Local
Schools, and Helps Make NY More Affordable for Individuals,
Families, and Businesses (Apr. 9, 2017),
https://www.nysenate.gov/newsroom/articles/senate-passes-2017-
18-state-budget-protects-taxpayers-provides-record-investments.
15 Governor Cuomo Announces Passage of the FY 2018 State
Budget, supra.
34
failure to follow a needs-based education funding system.” Resp. Br.
at 61. Plaintiffs’ brief in this Court, however, makes clear that the
Aristy-Farer and NYSER actions assert entirely distinct claims.
The NYSER action alleges, in substance, that the State violated the
Education Article by apportioning education aid to school districts
using a formula that does not adequately reflect “student need.”
Resp. Br. at 30-32. The Aristy-Farer plaintiffs assert a different
claim: they allege that the State’s one-time “withholding” of state
aid increases from New York City pursuant to the Annual
Professional Performance Review (APPR) Compliance Provision
(see App. Br. at 18-20) deprived students in that school district of
the opportunity for a sound basic education in violation of the
Education Article. Resp. Br. at 26. (See also R. 28 [¶¶ 84-85].) It is
therefore incorrect that the “only material difference” between the
two actions “is Aristy-Farer’s focus on the APPR penalty issues.”
Resp. Br. at 61.
Moreover, as defendants noted in their opening brief (at 63-
65), the Aristy-Farer complaint, unlike the NYSER complaint, lacks
any allegations of constitutional deficiencies in educational services
35
as to the one school district at issue in that complaint, New York
City—let alone any deficiencies in services caused by the APPR
provision that is the sole object of the Aristy-Farer complaint.
Plaintiffs offer no reason why this difference should be overlooked,
and why the Aristy-Farer complaint should not stand and fall on its
own merits. There is no inequity in holding the Aristy-Farer
plaintiffs—who are represented by the same counsel as the NYSER
plaintiffs—to their strategic decision to assert different claims from
those asserted by the NYSER plaintiffs based on different
allegations. The Aristy-Farer complaint consequently should be
dismissed in its entirety.
36
CONCLUSION
All of the claims in the Aristy-Farer complaint should be
dismissed; the first and second causes of action in the NYSER
complaint should be dismissed in their entirety; and the third and
fourth causes of action in the NYSER complaint should be
dismissed to the extent they relate to school districts other than
New York City and Syracuse.
Dated: New York, NY
May 12, 2017
BARBARA D. UNDERWOOD
Solicitor General
STEVEN C. WU
Deputy Solicitor General
ANDREW W. AMEND
Senior Assistant Solicitor General
PHILIP V. TISNE
Assistant Solicitor General
of Counsel
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Appellants
By: ________________________
ANDREW W. AMEND
Senior Assistant Solicitor
General
120 Broadway
New York, NY 10271
(212) 416-8020
Reproduced on Recycled Paper
AFFIRMATION OF COMPLIANCE
Pursuant to the Rules of Practice of the New York Court of Appeals (22
N.Y.C.R.R.) § 500.13(c)(1), Andrew W. Amend, an attorney in the Office of the
Attorney General of the State of New York, hereby affirms that according to
the word count feature of the word processing program used to prepare this
brief, the brief contains 6,521 words, which complies with the limitations
stated in § 500.13(c)(1).
______________________________
Andrew W. Amend
Addendum
TABLE OF CONTENTS
PAGE
i
Excerpts from Brief for Defendants-Respondents-Cross-
Appellants, Campaign for Fiscal Equity, Inc. v. State,
8 N.Y.3d 14 (2006) (Index No. 111070/93) .................................................. ADD1
Excerpts from Sen. Joseph L. Bruno et al., Staff Analysis of
the 2007-08 Executive Budget (Feb. 2007) ................................................ ADD22
To be argued by:
DENISE A. HARTMAN
Time requested: 30 minutes
THE STATE OF NEW YORK
COURT OF APPEALS
_____________________________________________
CAMPAIGN FOR FISCAL EQUITY, INC., et al.,
Plaintiffs-Appellants-Respondents,
v. New York County
Index No. 111070/93
THE STATE OF NEW YORK, GEORGE PATAKI,
as Governor of the State of New York,
and ANDREW S. ERISTOFF,
as Commissioner of Taxation and Finance
of the State of New York,
Defendants-Respondents-Cross-Appellants.
_____________________________________________
BRIEF FOR DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS
ELIOT SPITZER
Attorney General for the
State of New York
Attorney for Defendants-Respondents-
Cross-Appellants
The Capitol
Albany, New York 12224
Telephone No. (518) 473-6085
Facsimile No. (518) 473-8963
OAG No. 93-001006-A4
CAITLIN J. HALLIGAN Dated: July 10, 2006
Solicitor General
DANIEL SMIRLOCK
Deputy Solicitor General
DENISE A. HARTMAN
Assistant Solicitor General
of Counsel
Reproduced on Recycled Paper
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv
ADD1
Excerpts from Brief for Defendants-Respondents-Cross-Appellants,
Campaign for Fiscal Equity, Inc. v. State, 8 N.Y.3d 14 (2006) (Index No. 111070/93)
(ADD1-ADD21)
PRELIMINARY STATEMENT
Plaintiffs Campaign for Fiscal Equity, Inc., et al., appeal,
and Defendants State of New York, Governor George Pataki, and Tax
Commissioner Andrew S. Eristoff cross appeal, from an order of
the Appellate Division, First Department, dated March 23, 2006,
that vacated the order of Supreme Court, New York County, to the
extent that it confirmed the Report and Recommendations of the
Judicial Referees. The Appellate Division directed that,
[i]n enacting a budget for the fiscal year
commencing April 1, 2006, the Governor and
the Legislature consider, as within the range
of constitutionally required funding for the
New York City School District, as
demonstrated by this record, the proposed
funding plan of at least $4.7 billion in
additional annual operating funds, and the
Referees’ recommended annual expenditure of
$5.63 billion, or an amount in between,
phased in over four years, and that they
appropriate such amount, in order to remedy
the constitutional deprivations [found in CFE
II].
Slip op. at 29. The court also directed the Governor and the
Legislature to “implement a capital improvement plan that expends
$9.179 billion over the next five years or otherwise satisfies
the City schools’ constitutionally recognized capital needs.”
Id., slip op. at pp. 29-30.
Since this Court issued its decision in Campaign for Fiscal
Equity v. State of New York, 100 N.Y.2d 893 (2003) (“CFE II”),
the State of New York has taken substantial steps toward
fulfilling its constitutional responsibilities. In response to
this Court’s instruction that the State defendants ascertain the
ADD2
2
cost of providing a sound basic education in New York City, the
Governor commissioned a study by the “Zarb Commission,” a
distinguished panel of educators, community leaders, and business
leaders, from which it was determined that a sound basic
education for New York City students requires $1.93 billion more
in 2004 dollars (plus an adjustment to reflect subsequent
inflation) in operating funds than was made available in 2003.
Consistently with that determination, the State has
increased operational aid for New York City schools by more than
$1 billion over the last three years. The City itself has
provided a similar amount. In the realm of capital needs, the
State has enacted legislation that provides $1.8 billion this
year for New York City school construction. This year also
raises the debt limit for New York City’s Transitional Finance
Authority by $9.4 billion, which will allow it to borrow
sufficient funds to remedy the deficiencies identified in CFE II,
and allows the City to pledge future State building aid to repay
at least half of the borrowed funds. The parties agree that this
year’s legislation provides sufficient funds to remedy the
facilities deficiencies identified in CFE II.
These actions, combined with other reforms, reflect serious
efforts by the defendants to meet the State’s obligations to
New York City students under the Education Article.
Nevertheless, plaintiffs, who are dissatisfied primarily with the
amount of operating funds that have been made available to New
York City schools, ask this Court to issue a coercive remedial
ADD3
3
order against the State directing the appropriation and
expenditure of either a specific amount of public funds, or of an
amount within a range of $4.7 to $5.6 billion annually, and to
retain jurisdiction to enforce such an order.
Such extraordinary relief is unwarranted, and, without
exaggeration, unprecedented. Indeed, plaintiffs cite no New York
authority that supports their attempt to persuade the courts to
ignore the separation of powers doctrine and order the executive
and legislature to appropriate billions of dollars a year for
years to come. To the extent that the Appellate Division’s order
can be read to require such an appropriation, it cannot be
sustained.
Moreover, in directing the State defendants to treat $4.7
billion as the minimum acceptable amount of additional operating
funds, the Appellate Division committed clear error. The
Appellate Division held that the State defendants’ methodology
for ascertaining the cost of a sound basic education in New York
City was both reasonable and supported by a “respectable body of
evidence.” The record makes clear that, as a matter of
mathematics, this methodology leads to the conclusion that
New York City needs an additional $1.93 billion in operating
funds to provide its students with a sound basic education.
Nevertheless, apparently confusing this constitutional minimum
with the $4.7 billion the Governor proposed as a matter of
policy, the Appellate Division told the State to consider
additional annual funding of no less than $4.7 billion. But as
ADD4
4
the State defendants explained to the court below, the $4.7
billion figure represented an executive policy choice to provide
more funding than is constitutionally required; the
constitutional minimum remains $1.93 billion.
Accordingly, the State defendants ask this Court to grant
the following relief:
(1) Declare that the State defendants’ study,
which produced the conclusion that the
Constitution requires that New York City receive
additional annual operating funding of $1.93
billion, adjusted to reflect the updated regional
cost index and inflation since 2004, complies with
the Court’s directive in CFE II that the State
ascertain the cost of providing a sound basic
education in New York City;
(2) Declare that either (A) the State’s
existing building aid program and recent
capital funding legislation, supplemented by
the requirement that New York City prepare a
sound basic education plan identifying the
necessary capital improvements, or (B) a
capital improvement plan otherwise satisfying
the New York City schools’ capital needs,
fulfills the Court’s mandate that defendants
implement a plan to reduce class sizes and
provide additional specialized space; and
(3) Declare that the accountability and
management reforms that the State has put in
place since the close of the trial record,
supplemented by the requirement proposed by
the State defendants that New York City
submit a sound basic education plan and
annual reports detailing, school by school,
the funding and resources available and
programs and services provided to ensure that
all New York City students have the
opportunity for a sound basic education,
satisfy CFE II’s mandate for accountability
measures.
JURISDICTIONAL STATEMENT
ADD5
13Because the State in this case is ultimately responsible
for funding public schools, the court’s mandate is effectively an
58
funding and resources effectively in the future. Defendants and
plaintiffs agree that the Court should declare these
accountability measures necessary and appropriate to ensure that
an opportunity for a sound basic education is available to all
students in New York City.
POINT IV
THE COURT LACKS AUTHORITY TO ISSUE AN ORDER REQUIRING
THE STATE TO PROVIDE AT LEAST AN ADDITIONAL $4.7
BILLION ANNUALLY FOR OPERATING EXPENDITURES AND $9.179
BILLION FOR CAPITAL IMPROVEMENTS IN NEW YORK CITY’S
SCHOOLS
Plaintiffs ask this Court to issue a “clear, enforceable
compliance order” requiring the State to increase annual
operational funding for New York City schools by a minimum of
$4.7 billion (Br., pp. 29-38). They also ask this Court to issue
an order requiring the State to fund and implement their $9.179
BRICKS plan over the next five years (Br., p. 40). But
plaintiffs, tellingly, cite no authority except CFE II to support
their position that the judiciary can order its coequal branches
to appropriate or otherwise provide specific sums of money, let
alone sums of the magnitude requested here. In fact, the
authority in New York, including CFE II, is to the contrary. To
the extent that the Appellate Division’s directives require the
executive and legislature to appropriate or otherwise provide
specific sums of money, the Appellate Division exceeded its
authority.13 Even if, under certain extraordinary circumstances,
ADD6
order for appropriations, notwithstanding the Legislature’s
prerogative to require New York City to share in that funding
responsibility. See CFE II, 100 N.Y.2d at 930; cf. City of
New York v. State of New York, 86 N.Y.2d 286 (1995) (New York
City officials are agents or creatures of the State and lack
capacity to sue the State for constitutional violations related
to support for public education).
59
a court might be able to issue such directives, prudential
principles counsel against doing so in this case. And there is
in any event no jurisdictional basis for this Court to retain the
case for further enforcement action.
A. It Is Beyond the Court’s Powers to Order the
Elected Branches of Government to Provide
Specific Sums of Money for New York City
Education.
Only the executive and legislative branches, not the
judiciary, are involved in the appropriations process.
New York’s Constitution provides that “[n]o money shall ever be
paid out of the state treasury funds, or any funds under its
management, except in pursuance of an appropriation by law.”
N.Y. Const. art. VII, § 7. According to article VII, the
Governor submits to the Legislature a budget containing a
complete plan of expenditures, along with a bill or bills
containing the proposed appropriations. N.Y. Const. art. VII,
§§ 2, 3. The Legislature may then make certain limited
modifications to the Governor’s bills, but may not increase the
amounts. Id. § 4. Upon passage by both houses, the bills
generally become law without further action by the Governor. Id.
The Legislature may then initiate its own supplemental spending
after taking final action on the Governor’s budget submission.
ADD7
60
See generally Pataki v. New York State Assembly, 4 N.Y.3d 75, 81-
86 (2004).
Article VII provides no role for the judiciary in the
budget-making process, except with regard to appropriations for
its own branch. The majority in Pataki v. New York State
Assembly recently warned against a judiciary that inserts itself
into the budget process when the other two branches are at a
stalemate:
The dissent makes a valid point that
political stalemate over a budget is an
unattractive prospect. On the other hand, to
invite the Governor and the Legislature to
resolve their disputes in the courtroom might
produce neither executive budgeting nor
legislative budgeting but judicial budgeting
- arguably the worst of the three.
4 N.Y.2d at 97 (emphasis added).
There is good reason for this Court to refuse to involve
itself in the budget-making processes of the other two branches,
as it recognized in CFE II when it eschewed any authority,
ability, or desire to “micromanage education financing.”
100 N.Y.2d at 925. The Court noted that it lacks the perspective
to consider either the programmatic and fiscal needs of the State
or the revenues available to fund these needs, observing that the
other two branches “have fiscal governance over the entire State
and that in a budgetary matter [they] must consider that any
action [the State] takes will directly or indirectly affect its
other commitments.” 100 N.Y.2d at 930, n.10. Since the
judiciary cannot review and evaluate the entire State budget, “it
is untenable that the judicial process . . . should intervene and
ADD8
61
reorder priorities, allocate the limited resources available, and
in effect direct how the vast [State and City] enterprise should
conduct [their] affairs.” Jones v. Beams, 45 N.Y.2d 402, 407
(1978).
Moreover, this Court has long recognized that the power of
the purse cannot be uncoupled from the power of the elected
representatives to raise and allocate revenues. Thus, in
Anderson v. Regan, 53 N.Y.2d 356, 359 (1981), the Court
considered the question whether federal funds coming to the State
must be appropriated by the Legislature before the Executive can
lawfully disburse them. The Court held that a legislative
appropriation was necessary, noting that “the wording of the
Constitutional provision governing the expenditure of State funds
is clear and uncomplicated”:
Section 7 of article VII of the State
Constitution, quite simply, requires that
there be a specific legislative appropriation
each time that moneys in the State treasury
are spent. . . . So long as the funds are
placed within the State treasury, the clear
language of the Constitution prevents their
removal without legislative authorization.
53 N.Y.2d at 359-60. The Court recognized that the expenditure
of funds other than through the budget-making processes of
article VII could commit the State to obligations that would have
to be met by taxpayers, thereby circumventing the accountability
built into the process: “As the framers of the Constitution
astutely observed, oversight by the people’s representatives of
the cost of government is an essential component of any
democratic system.” Id. at 365.
ADD9
62
Thus, while courts have broad equitable powers, there is no
precedent in New York for any court to require the enactment of
appropriation legislation. Just as the Executive could not
expend funds without the Legislature’s assent in Anderson v.
Regan, the judiciary cannot order the expenditure of funds that
have not been appropriated by the Executive and Legislature under
article VII. Nor can it do as the Supreme Court below did, and
as the Appellate Division arguably did by establishing a minimum
amount to be appropriated, and insert itself in the budget
process by directing the coordinate branches to exercise their
appropriation authority in a particular way.
This is not to suggest a court is powerless to grant relief
when it finds a constitutional violation. Its authority to issue
declaratory relief is undisputed, for “[i]t is emphatically the
province and duty of the judicial department to say what the law
is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). This Court
has invoked Marbury v. Madison for the same principle,
proclaiming its supremacy over the coordinate branches of state
government when interpreting New York’s Constitution. See, e.g.,
Cohen v. State of New York, 94 N.Y.2d 1, 11-12 (1999);
Schieffelin v. Komfort, 212 N.Y. 520, 530-31 (1914). And this
Court’s decisions, imbued as they are with moral authority and
legitimacy, can spur the elected branches to take action to meet
the State’s obligations, constitutional or otherwise. Indeed,
the signposts this Court posted in CFE II have already prompted
ADD10
63
significant efforts by the State and City to address the needs of
the City’s public school system.
A declaration by this Court that the defendants’ plan
proposes a reasonable amount of additional operating funds will
likely dispel the uncertainty among elected leaders as to the
amount of money necessary to provide students in New York City
with a sound basic education, while stopping short of any action
that violates the separation of powers. This Court’s decision in
Klostermann v. Cuomo, 61 N.Y.2d 525 (1984), suggests the proper
approach. There, plaintiffs sought mandatory injunctive relief
against a State agency that failed to comply with a Mental Health
Law provision requiring residential placement and care upon
release from State hospitals. 61 N.Y.2d at 532. The Court held
that declaratory relief is available even if the court making the
declaration lacks power to coerce enforcement by executory order.
The Court explained:
One aspect of the distinctive nature of an
action for declaratory judgment is that not
only is the ultimate decree noncoercive, but
the rights declared need not be amenable to
enforcement by an executory decree in a
subsequent action. The belief that an
executory order is required arises from the
misconception that the judicial power is
necessarily a coercive one. “The coercion or
compulsion exerted by a judgment, while
essential to its effectiveness, is not due to
a coercive order to act or refrain, but to
the very existence of the judgment, as a
determination of legal rights. Many
judgments are incapable of, and do not
require, physical execution. They
irrevocably, however, fix a legal relation or
status placed in issue, and that is all that
the judgment is expected to do.”
ADD11
64
Id. at 538 (quoting Borchard, Declaratory Judgments [2d ed.],
p. 12). The Court concluded that “the ultimate availability of a
coercive order to enforce adjudicated rights is not a
prerequisite to a court’s entertaining an action for a
declaratory judgment.” Id. at 539.
While the Court in Klostermann held that mandamus relief
might in certain circumstances be available to enforce a
declaratory judgment, those circumstances are not present here.
Klostermann involved a directive to an agency that failed to
comply with a statutory requirement. The Klostermann defendants
argued that coercive relief would necessarily involve the
allocation of resources and entangle the courts in functions that
are properly those of the executive and legislative branches.
The Court rejected that argument, explaining that the case
involved only the enforcement of rights that had already been
conferred by another branch of government, not a court’s
imposition of its own policy preference upon its governmental
partners. Id. at 540.
But that is not the situation in the present case, where the
plaintiffs urge the court to order the coordinate branches of
government to exercise their most essential function -- enacting
appropriations under article VII of the State Constitution. As
the Court in Klostermann further noted, even when mandamus is
available, it cannot be used to usurp government officials’
discretion. The Court admonished that “[t]he activity that the
courts must be careful to avoid is the fashioning of orders and
ADD12
14Indeed, there is long-standing precedent in this State
holding that the judiciary has no authority to order the Governor
or Legislature to perform a specific act, ministerial or
otherwise. See People ex rel. Broderick v. Morton, 156 N.Y. 136
(1898), where the Court reversed the Appellate Division’s order
awarding mandamus against the Governor, holding “that the writ
never issues to the executive or legislative branches of the
government, nor to the judicial branch having general and final
jurisdiction.” 156 N.Y. at 145. People ex rel. Broderick v.
Morton is fully consistent with Marbury v. Madison, which the
Court indeed cited, 156 N.Y. at 143: While the courts may issue
declaratory relief, they lack the power to order specific
affirmative relief against their co-equal branches of government.
65
judgments that go beyond any mandatory directives of existing
[law] and regulations and intrude upon the policy-making and
discretionary decisions that are reserved to the legislative and
executive branches.” Id. at 541.
The Appellate Division left some ambiguity in its order,
however, perhaps recognizing that it could not actually order the
State to provide a fixed amount of funding, or even a minimum
amount of funding. It told the Executive and Legislature to
“consider” a range of funding, choose a particular sum, and
“appropriate such amount.” Likewise, it required that the
coordinate branches of government either implement a $9.179
billion capital improvement plan “or otherwise satisf[y]” the
City schools’ capital needs. But insofar as the Appellate
Division’s order can be read as compelling the Executive and
Legislature to provide specific minimum amounts of money, it
transgresses the boundary separating the judicial function from
the work of the other branches of government.14
ADD13
66
B. In Any Event, the Court Should Not Issue a
Coercive Order in this Case.
Even if there may be extraordinary circumstances in which a
court has some power to order specific executive and/or
legislative action, the principles underpinning the separation of
powers doctrine counsel against doing so except as a last resort.
Here, the State has taken substantial steps toward meeting its
obligations and improving public education both in New York City
and state-wide. Under these circumstances, a coercive order that
would test the limits of the separation of powers is not
warranted.
Recent decisions by the high courts of other states have
recognized this need for judicial restraint. Thus, for example,
the Supreme Judicial Court of Massachusetts declined to issue
further directives to its coordinate branches despite undisputed
evidence that the Commonwealth was still falling short of its
constitutional obligation to provide education funding,
particularly in its poorer school districts. Hancock v.
Commissioner of Education, 443 Mass. 428, 822 N.E.2d 1134 (2005).
The court noted that the legislative and executive branches had
substantially increased education funding during the pendency of
McDuffy v. Secretary of the Executive Office of Educ., 415 Mass.
545, 615 N.E.2d 516 (1993), which produced a declaration that
Massachusetts’ system of funding education was unconstitutional.
Moreover, after the McDuffy decision, the elected branches showed
a commitment to increased funding and created a comprehensive set
ADD14
15The Massachusetts court, in rejecting the suggestion of a
court-ordered costing-out study, observed that such a study is
“rife with policy choices that are properly in the Legislature’s
domain” and would be only a “starting point for what inevitably
must mean judicial directives concerning appropriations.”
Hancock, 822 N.E.2d at 461.
67
of policies and standards establishing objective measures of
student performance and school and district assessment,
evaluation and accountability.
Because of this activity, the court found further judicial
intervention inappropriate. Hancock, 443 Mass. at 462. It
acknowledged that although the legislature and executive were
moving more slowly than many would have liked, 443 Mass. at 458,
they had shown a commitment to improving the state’s system of
public education. The Supreme Judicial Court accordingly
rejected the lower court’s recommendation that Commonwealth
officials be required to conduct a study to determine how much
more funding was needed to bring poorer school districts into
constitutional compliance and then to make additional
appropriations.15 The court deemed it wiser to rely on the
presumption that the Commonwealth would continue to honor and
work toward meeting its constitutional obligations. 822 N.E.2d
at 460.
The Supreme Court of North Carolina similarly refrained from
ordering specific relief against the legislative and executive
branches after it had declared that that state was failing to
provide the opportunity for a sound basic education under North
Carolina’s Constitution. Hoke County Board of Education v. State
ADD15
68
of North Carolina, 358 N.C. 605, 599 S.E.2d 365 (2004). It
distinguished between the court’s role as the ultimate arbiter of
the state’s constitution and its limitations in providing
specific remedies in an area that is the province of the elected
branches:
The state’s legislative and executive
branches have been endowed by their creators,
the people of North Carolina, with the
authority to establish and maintain a public
school system that [entitles them to the
opportunity for a sound basic education]. As
a consequence of such empowerment, those two
branches have developed a shared history and
expertise in the field that dwarfs that of
this and any other Court. While we remain
the ultimate arbiters of our state’s
Constitution, and vigorously attend to our
duty of protecting the citizenry from
abridgements and infringements of its
provisions, we simultaneously recognize our
limitations in providing specific remedies
for violations committed by other government
branches in service to a subject matter, such
as public education, that is within their
primary domain.
358 N.C. at 644-45, 599 S.E.2d at 395. The North Carolina court
accordingly rejected the lower court’s imposition of a specific
programmatic remedy aimed at enhancing educational opportunities
for at-risk students. Id.; see also State ex rel. Ohio v. Lewis,
99 Ohio St. 3d 97, 789 N.E.2d 195, 198 (quoting DeRolph v. Ohio,
78 Ohio St. 3d 419, 420, 678 N.E.2d 886 [1997]) (trial court
lacked authority to require specific relief in litigation over
Ohio’s system of funding public education because “it is not the
function of the judiciary to supervise or participate in the
legislative and executive process”), cert. denied sub nom DeRolph
v. Ohio, 540 U.S. 966 (2003).
ADD16
69
In the present case, the State’s actions over the past
decade show an increasing commitment to the State’s system of
public education and to New York City’s schools in particular.
Since 2002, the annual operating funding for New York City
schools has increased from $11.9 billion to $15.3 billion. See
The City of New York Executive Budget Fiscal Year 2007,
http://www.nyc.gov/html/omb/pdf/mm5_06.pdf, at p. 123.
Immediately after this Court declared that the State’s funding
for New York City’s Schools is constitutionally inadequate, the
Governor commissioned and completed a study that ascertained the
cost of providing a sound basic education state-wide and in
New York City and identified the extent of any spending gaps.
Even though the Executive and the Legislature have been unable to
agree on a comprehensive funding program that complies fully with
CFE II, they have, in the past three years, increased annual
operational funding for New York City by $1 billion, more than
half the amount that (in the State defendants’ view) is necessary
to meet the State’s constitutional obligations.
Similarly, the State has enhanced New York City’s ability to
receive reimbursement under the State’s building aid program,
such that capital funding for the City’s schools under that
program has doubled since 2002. Most recently, the State enacted
legislation that will provide an additional $1.8 billion this
year to fund the construction of more classrooms, laboratories
and other needed facilities in the New York City school district,
and raised the debt limit of New York City’s Transition Finance
ADD17
70
Authority by $9.4 billion, to be supported by future State
building aid funds, giving it the capacity to fund further
projects to remedy the deficiencies identified in CFE II.
The State has also made progress in holding school districts
accountable for providing a high-quality education. As this
Court noted in CFE II, the Legislature and Executive together
enacted major management reforms for the governance of the
New York City school district, enhancing the powers and duties of
the Mayor of New York City and his chancellor to manage the
school system. 100 N.Y.2d at 926, citing L. 2002, ch. 91. The
Mayor has since made improving the public school system the
centerpiece of his administration. Meanwhile, the State Board of
Regents has established a comprehensive set of standards and a
performance accountability system that requires underperforming
school districts to take remedial action, and has overhauled
state-wide requirements for teacher certification. See
8 N.Y.C.R.R. 80-3.4, 80-5.10, 100.5. The record also establishes
the success of the State’s efforts to ensure that all teachers in
the State’s public schools are qualified. Virtually all teachers
in New York City are now certified (R2515-2518).
In short, the State has taken its constitutional obligations
seriously. There is not the “kind of sustained legislative
resistance” that may have occurred in other States and prompted
courts to issue specific mandates. See CFE II, 100 N.Y.2d at 932
(referring to New Jersey’s experience). The two branches have
neither defied nor neglected the requirements of the Education
ADD18
71
Article, but rather have struggled to reach consensus on all
aspects of a plan to fulfill the State’s obligations. A
declaratory judgment as to the adequacy of the State defendants’
plan for compliance will assist those branches to reach
consensus, while respecting the principles underlying the
separation of powers doctrine.
C. Whatever it Decides, this Court Lacks
Jurisdiction to Retain this Case for
Further Enforcement Action.
Plaintiffs ask this Court to retain jurisdiction to consider
further enforcement action if defendants fail to abide by any
compliance order it issues. Once the Court decides this appeal,
however, there is no jurisdictional predicate for retention of
the case for enforcement purposes. The jurisdiction of this
Court is “limited to the review of questions of law” except in
narrow circumstances. N.Y. Constitution art. VI, § 3(a). Thus,
it lacks the power to decide factual issues unless the Appellate
Division reverses based on new findings of fact. See Merritt
Hill Vineyards, Inc. v. Windy Heights Vineyard, 61 N.Y.2d 106,
111 (1984); see generally Cohen and Karger, Powers of the New
York Court of Appeals, §§ 107-113 (rev. ed.). Furthermore, this
Court has no original jurisdiction; its jurisdiction extends only
to appeals under certain defined circumstances. See C.P.L.R.
art. 56; Lombardi v. Supreme Court, 20 N.Y.2d 690 (1967); Van
Newkirk v. District Attorney of Richmond County, 17 N.Y.2d 871
(1966); In re Carruthers, 158 N.Y. 131 (1899).
ADD19
72
Because New York’s Constitution limits this Court’s
jurisdiction in this way, the out-of-state cases upon which
plaintiffs rely (Br., pp. 55-57) to support their request that it
retain jurisdiction are inapposite. See, e.g., Hull v. Albrecht,
192 Ariz. 34, 960 P.2d 634 (1998) (invoking original jurisdiction
under Ariz. Const. art. 6, § 5[1],[4]); Lake View Sch. Dist. v.
Huckabee, 355 Ark. 617, 142 S.W.3d 643 (2004) (invoking original
jurisdiction under Ark. Const. amend. 80, § 2[E]); State v.
Taylor, 125 N.M. 343, 961 P.2d 768 (1998) (invoking original
jurisdiction under N.M. Const. art. 6, § 3); Idaho Schools for
Equal Educ. Opportunity v. State of Idaho, 142 Idaho 450, 129
P.3d 1199 (2005) (original jurisdiction provided by Id. Const.
art. V, § 9); Montoy v. State, 279 Kan. 817, 112 P.3d 923 (2005)
(original jurisdiction provided by Kan. Const. art 3, § 3);
Helena Elementary Sch. Dist. v. State, 236 Mont. 44, 769 P.2d 684
(1989) (original jurisdiction provided by Mont. Const. art. 7,
§ 2[1]). Plaintiffs have pointed to no precedent in this State to
support their request, and there appears to be none.
It is true that this Court has jurisdiction over an appeal
seeking to enforce the Court’s own remittitur. See Matter of
Schwartz v. Bogen, 30 N.Y.2d 648, 649 (1972); New York Thruway
Authority v. State of New York, 25 N.Y.2d 210, 219 (1969). That
authority exists, however, only where the Court has remitted to a
court below and it is claimed that the lower court’s decision
violates the remittitur. The Court’s power to enforce its own
ADD20
73
remittitur does not permit it to retain jurisdiction over a
decided case in order to consider enforcement against the parties
in the first instance.
POINT V
THE APPELLATE DIVISION PROPERLY REJECTED SUPREME
COURT’S CALL FOR FOLLOW-UP COSTING-OUT STUDIES
CONDUCTED PERIODICALLY FOR THE INDEFINITE FUTURE
This Court should reject plaintiffs’ request (Br., pp. 49-
51) for reinstatement of the provisions of the Supreme Court’s
order calling for costing-out studies, using court-defined
methodology, to be conducted every several years for the
indefinite future. Such an order will entangle the courts in
education financing matters for decades.
With regard to operating costs, the Appellate Division
properly concluded that Supreme Court exceeded its authority in
ordering follow-up studies to recalculate the costs of a sound
basic education every four years “until such time as such studies
are no longer needed to assure that all New York City public
schools students receive the opportunity for a sound basic
education” (R9, 10). Supreme Court not only directed that these
studies continue until some unknown date, but also would have
locked the State into the successful-school-district and
professional-judgment methodologies approved by the Referees, and
tied the annual funding of New York City schools to the results
of these studies for the indefinite future. The court compounded
these errors by requiring the Regents to design and supervise
ADD21
ADD22
Excerpts from Sen. Joseph L. Bruno et al., Staff Analysis of the 2007-08 Executive Budget (Feb. 2007) (ADD22-ADD24)
Staff Analysis of the \J ~ f
2007-08 Executive Budget
.. ~"\""-....
'.- """·~-'t"" '•'
Senator Joseph L. Bruno
Majority Leader and President Pro Tern
Senator Owen H. Johnson
Chairman, Finan_ce Committee
Jeffrey Lovell
February .2007
Robert F. Mujica
Secretary to the Finance Committee
and Special Advisor to the Majority Leader
Managing Director of Budget & Fiscal Analysis
and Deputy Secretary to the Finance Committee
!
I
r
""'
t EDUCATION CONFERENCE COMMITTEE SUMMARY )
~--------------------------------------------------------------/
All Funds Disbursements
(Millions of Dollars)
Estimated Projected
SFY 06-07 SFY 07 ·08
! Cash 27,521
! Annual Growth Rate 14.1%
5 Year Average Growth (Actual)
30,587
11 .3%
8.1%
The Executive proposal for State Fiscal
Year 2007-08 provides a $1.4 billion increase in
geneml support for public schools (GSPS). This
represents an eight percent increase over the
2006.07 school year and would increase school
aid from $17.7 billion to $19.2 billion in
2007-08. The Executive has proposed a
multi-year school aid package that includes a
four year plan that will spend $7 billion in
additional aid by the 20 l 0-11 school yeo.r.
Currently the State provides $17.7 billion in
school aid. The Executive's proposal will grow
school aid to $24.7 billion in four years, which is
a 39.5 percent increase in funding by the
20 10·11 school year. Over the previous four
years the State increased aid to education by $3.1
billion or 21 percenL
Within the $7 billion plan the Executive
proposes to consolidate 30 school aid fonnulas
into one foundation aid formula that will grow
by $4.8 billion over four years (in year one the
~·oundation aid formula will generate an
1dditional $982 million for school districts). The
remainder of the $7 billion in growth over four
years can be found in reimbursable aids
including school construction. transportation,
BOCES as well as pre-kindergarten funding.
BiiUons of Dollars
35 ..----- - ·- - - - - - - - ---·- ··--
301-----
25
20 - ·- - ·- -· -- -- ·----- -· · .------
10~------------------------
~~4/~afl~~o1ci'/d'C)~~~ // ~ ~~~
State Fiscal Year
Foundation Formula
The Executive's foundation formula is
structured with many of the same components as
lhose proposed by the New York State Board of
Regents (October 2006) and in fact utilizes the
Board's successful schools model to determine a.
cost per student. The cost per student is then
adjusted 'based upon regional cost differences as
well as differences in poverty, limited english
speaking children and children with special
needs. Also included in the foundation formula
is an offset for an expected local contribution.
which is based on a district's capacity to raise
local dollars for the education of children in the
community. This offset fakes into consideration
both a community's property wealth as well as
income wealth. (See the Foundation Fonnula
Issue in Focus in this repon for an in depth
critique of the foundation fonnula approach.)
The Executive'5 proposal for New York
City is ellpected to satisfy the requirements of
the Court in CFE vs. State of New York. While
the Executive far surpasses the funding
requirements of the court case and spends $7
billion over four years. the foundation aid
proposal places 45 percent (304 of 677 or the
school districts) in the State on a permanent
save harmless. More speciOcaJiy this proposal
Overview of the 2007-08 Executive Budget ADD23 Page7
EDUCATION FOUNDATION AID
FORMULA
I. Back&round;
For 2007-08, the Executive proposes
school districts will receive state aid from a new
type of school aid formula called "Foundation
Aid". This new foundation aid when adjusted
for comparability with the current year
represents an increase of $981.59. million over
the 2006-07 school year level funding. with over
$13.5 billion. in state aid to be allocated by one
formula. The proposed foundation aid would
consolidate approximately 30 existing aid
categories, claims to adjust for estimated
regional cost differences in providing education
to children.
The SFY 2007-08 Executive Budget
proposal also provides for a four year phase in of
their proposed foundation formula which will
increase spending by $4.8 billion over 2006-07
levels in operating funding alone, and will
increase total school aid by $7 billion when
expense-based aids and other educational
programs are included.
The Executive's approach goes far
beyond the November 2006 Court of Appeals
rut ing which speci tied that $1.93 billion
(inflation adjusted) is necessary to provide the
years. This construct provides for a local share
of 42 percent in New York City
II. What is the Foundation Formula?
The foundation aid formula concept
takes several factors into consideration to drive
funding allocations. The first factor is based on
a .. successful schools" model which defines a
successful school and ultimately requires a
determina.tion of the cost of providing an
education · within successful schools. Second. a
regional cost index is used in recognition of
those differences in cost of living around the
State. Third, the total amount which is estimated
to be spent on students is adjusted by a pupil
needs index. Founh, an expected local
contribution is calculated for all school districts.
This amount per child is subtracted from the
"foundation" amount per child and the remainder
is the state aid per child.
In short, the manner by which the
poverty data is used combined with an "expected
local share''. which does not properly for
housing cost variations. has the effect of tilting
the . distribution of education funding
significantly.
opportunity for a sound basic education in New UI. How js the Foundation Formula
York City. This translates to $2.5 billion when Different?
applied statewide. The Governor's program will
provide New York City with an additional The foundation formula does not
$3.1 billion in State. operating funds over four recognize many of the differences and unique
years. New York City has included within their characteristics of the many regions across the
four year funding plan an additional $2.2 State and therefore significantly alters state aid
billion in local funds to its school system for a · distribution. For example. when you look at the
total combined effon of $5.3 billion over four distribution of aid 304 school districts, or 45
percent of school districts Statewide receive
Senate Issues in Focus ADD24 Page 66