The fate of New York public education is a matter of interpretation: a story of competing methods of constitutional interpretation, the nature of law, and a functional approach to the New York education article.

• Author: Noonan, Bran C.

The virtues of one generation are not sufficient for the next, any more than the accumulations of knowledge possessed by one age are adequate to the needs of another. (1)

I believe that education is the fundamental method of social progress and reform. I believe that all reforms which rest simply upon the enactment of law, or the threatening of certain penalties, or upon changes in mechanical or outward arrangements, are transitory and futile. (2)

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The importance of education in American society and the government's responsibility to provide every child with the opportunity to receive an education is one of the centerpieces of the Brown v. Board of Education legacy. (3) Three generations after Brown, communities no longer struggle over the specific issue of busing, (4) but rather on deficient resources and ineffective educational systems that perpetuate racial and socioeconomic isolation and a substandard quality of education. (5) The underlying social and political promises of Brown raise the question as to what extent government must act to guarantee children a quality education. Without an explicit mandate in the Federal Constitution, the majority of educational responsibility falls to the states. (6)

In 1894, New York State constitutionalized education under Article XI of the New York State Constitution, known as the Education Article, which states: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." (7) Due to the Education Article's imprecise and general language, the New York State judiciary has struggled to interpret the Article and identify the extent of the state's role in public education under the constitutional mandate. (8) The New York Court of Appeals has employed an originalist method of interpretation in Education Article disputes, (9) finding that plaintiffs maintain a cause of action only in certain extreme circumstances. (10)

Beginning in the 1970s, attempts by educational advocates to bring suits under the Education Article continually failed. (11) Finally, in 2003, advocates achieved a monumental victory in Campaign for Fiscal Equity, Inc. v. State (CFE II), ending a thirty year journey to uncover the substantive rights embedded in the Article. (12) In CFE II, the New York Court of Appeals held that the state finance system failed to provide New York City public schools with the necessary resources to obtain a sound basic education in violation of the Education Article. (13) While the New York State legislature and governor failed to meet the court's deadline to implement the necessary measures to cure the system's infirmities, and appealed many recommended reforms, on November 20, 2006, the Court of Appeals uttered its final word in the CFE case and held that the State must increase funding of New York City public schools, setting the floor at a minimum of $1.93 billion, despite education advocates' request for an increase of at least $4.7 billion. (14) This lengthy litigation took the New York courts to the brink of a constitutional crisis, confronting the very spirit of separation of power principles. (15)

However, despite the legal victory in the CFE case, the Court of Appeals' narrow interpretation of the Article has left it without a framework to adapt to the rising standard of education and the changing social milieu, and, thus, to meet the needs of poorly performing students in the state. (16) The court is unwilling to expand the parameters of the article's reach. The recent cases, Paynter ex rel. Stone v. State and New York Civil Liberties Union v. State (NYCLU), which this Article considers, presented unique claims questioning whether state policies that potentially promote socioeconomic isolation and state nonfeasance are actionable under the Education Article. The Court of Appeals decidedly dismissed both cases for failure to state a claim, leaving a portion of the state student population with minimal recourse. (17) What set Paynter and NYCLU apart from CFE H and its predecessors is that the former two cases potentially prefigure the next wave of Education Article cases, where the funding system is not the sole source of academic failure or, alternatively, where academic failure continues despite an adequately funded school system.

When the issues of Paynter and NYCL U or other creative theories resurface, the fate of New York public education will simply come down to a matter of interpretation. The method a jurist employs is one of the most decisive factors in determining law (a second factor being how the jurist actually applies the method). However, constitutions do not provide detailed instruction manuals. No explicit meta-method exists to help jurists identify the correct method of interpretation. Therefore, how does a jurist construct and choose a method of interpretation? Methods are pulled from different sources--a common denominator among them is that methods are devised from epistemic examinations and conceptions of social organization. An individual or group's perception and belief as to how a social entity should function and operate directs the construction of a methodology--i.e., a method is built to accomplish and insure a certain social vision. The question should not then be what the universal correct method is, but whether a method is defensible and useful.

Through an examination of the Education Article jurisprudence, specifically Paynter and NYCLU, this Article will look at two methodologies, originalism and pragmatism, and then outline a functional approach to the Education Article based on pragmatic principles that seek to promote greater empirical inquiry and adaptation to the educational needs of each generation. Part I provides an overview of the Paynter and NYCLU decisions and describes the formulaic test applied to the Education Article established via an originalist analysis. Part II defines and explores the roots and basis for originalism. The discussion then moves into examining various shortcomings of the methodology, particularly in relation to the Education Article. Part III looks at classical pragmatism and Justice Oliver Wendell Holmes Jr.'s jurisprudential theories. While Holmes did not consider himself a devoted pragmatist, his ideas, nevertheless, follow in line with that method of thought. He offered a functional approach to legal interpretation, which instructed jurists to look at the practicality of legal rules. His approach arose, as with classical pragmatism, during a period of time where older concepts of social organization, based in natural law doctrine, had grown increasingly ineffectual. Pragmatism and Holmes's functionalism were in fact a response to new, unconventional visions of the social entity that looked to the welfare and interests of the majority or collective, as opposed to the individual. Finally, Part IV sketches an alternative functional approach to the New York Education Article rooted in particular tenets of Holmes's approach to law.

1. OVERVIEW OF PAYNTER AND NYCLU

   1. Paynter ex rel. Stone v. State

      In Paynter ex tel. Stone v. State, fifteen students in the Rochester City School District ("RCSD") brought an action on behalf of 37,000 students in the RCSD against the State of New York, the RCSD, and all twenty-four suburban school districts within Monroe County (the "School Districts") pursuant to the Education Article and Equal Protection Clause of the New York State Constitution, 42 U.S.C. [section] 1983, and Title IV of the Civil Rights Act of 1964. (18)

      Under section 3202(1) and (2) of the Education Law, New York State instituted residency requirements and nonresident tuition requirements for students in each district. (19) Within the RCSD, approximately ninety percent of the students are poor "as measured by their eligibility for federal free and reduced price lunch programs" and about eighty percent are African-American or Hispanic. (20) The plaintiffs alleged that the demographic make-up of the RCSD and the students' inability to afford transportation to schools in other districts led to the substandard academic performance of the plaintiff class, which the defendants failed to ameliorate. (21)

      The Supreme Court of New York dismissed all claims against the RSCD and the School Districts for failure to set forth adequate allegations and remedies. (22) The Supreme Court dismissed the plaintiffs' Education Article claim against the State, but held that the plaintiffs' cause of action against the State pursuant to the New York State Equal Protection Clause and Title IV of the Civil Rights Act of 1964 could move forward. (23) On appeal, since the plaintiffs failed to brief the issues surrounding the Equal Protection Clause and 42 U.S.C. [section] 1983 claims, the New York Appellate Division concluded that the plaintiffs had abandoned those causes of action. (24) The Appellate Division then dismissed the remaining causes of action in the complaint. (25) The plaintiffs appealed the Appellate Division's decision on the Education Article claim, but the New York Court of Appeals affirmed, holding that the plaintiffs failed to state an Education Article claim against the State. (26)

      The Court of Appeals in Paynter followed the rule established in Levittown and expanded upon in CFE I, (27) in order to determine whether the plaintiffs stated a cause of action under the Education Article. (28) According to Levittown, the Education Article ensures New York State students the constitutional right to a "sound basic education" and "minimal acceptable facilities and services," which a plaintiff must allege that the State deprived him of in order to bring a cause of action. (29) A sound basic education consists of the "'basic literacy, calculating, and verbal skills'" that allow students to "'eventually function productively as civic participants capable of voting and serving on a jury.'" (30)...