Footing the bill for a sound basic education in New York City: the implementation of Campaign for Fiscal Equity v. State.

• Author: Scherer, Bonnie A.

"In whatever way a man sets out in his education, such accordingly will be its consequences." (1)

INTRODUCTION

A democratic society has a vested interest in a well educated populous. Educated citizens are capable of forming a productive workforce and actively participating in the electoral process. (2) Individuals without a high school diploma are significantly less likely to find meaningful employment and lead economically stable lives in today's economy. (3) Most states, in order to promote an educated citizenry, provide for some form of adequate education under their respective state constitutions. The New York State Constitution dictates that "It]he 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." (4)

On March 16, 2005, in what appeared to be a victory for the children of New York City, the Court of Appeals of New York, applying the Education Article, upheld a lower court decision and recommendation, by a panel of judicially appointed Special Referees, holding that the New York State school funding system failed to provide New York City children with a "sound basic education." (5) The Court of Appeals mandated that the State Legislature phase in $5.6 billion annually, as well as an additional $9.2 billion in a capital fund to reform the City public schools. (6) The opinion, however, failed to address one key question: where will the money come from? Members of the State government, including Governor George Pataki, indicate that New York City should be responsible for forty percent of the bill. (7) Local officials, such as Mayor Michael Bloomberg, insist that providing a sound basic education is the responsibility of state government, that the State should pay for the entire amount, and that any effort by the City to contribute will result in the loss of other programs that support children, as well as public safety. (8) The only guidance provided by an otherwise activist court was that the City may be responsible for a reasonable portion of education-related expenses and that the State may not overburden the City to the point where it cannot provide the funds. (9)

Part I of this Comment will first demonstrate various approaches in narrowing the achievement gap between wealthy and poor students under federal and state constitutional schemes over the past fifty years. Part I will further delineate the relative successes and failures in implementing education finance reform in various states. Lastly, Part I will explore the unique education system in New York City and education finance reform in New York State over the last few decades, focusing on the multiple judicial proceedings in Campaign for Fiscal Equity, Inc. v. State.

Part II will detail conflicting opinions on how and by whom a sound basic education for the children of New York City shall be funded under the mandate of Campaign for Fiscal Equity, Inc. v. State. Part II will further explore the argument that the judiciary lacked the authority to delegate $5.6 billion to provide a sound basic education. Part III will show how extreme solutions are unlikely to survive the political process and how the Court of Appeals' most recent decision in Campaign for Fiscal Equity, Inc. v. State leaves the door open for potentially endless litigation without timely benefit for the children in the New York City Public School System. Part III will also demonstrate how public engagement on where sound basic education funds should come from and additional educational reforms, in addition to increased funding, are needed to ensure that the New York City schools provide constitutionally mandated sound basic education to its students.

PART I: PROVIDING AN ADEQUATE EDUCATION FOR ALL CHILDREN: THE COMPLEX HISTORY OF EDUCATION FINANCE REFORM LITIGATION IN NEW YORK AND ACROSS THE UNITED STATES

In order to understand the current state of school finance, it is necessary to first look at the history of education finance reform litigation over the last fifty years. In Brown v. Board of Education of Topeka, the Supreme Court held that if government chooses to take on the job of educating its citizenry it must do so equally, or not at all. (10) Brown was only the first of many cases brought to promote education reform, a trend that continues today, over half a century later. (11) First, individuals attempted to bring federal equity claims under the Fourteenth Amendment. (12) When this approach failed, plaintiffs seeking education reform brought similar cases under state constitutions and using equal protection arguments. (13) The current wave of education reform cases seek to challenge whether states are providing an adequate education to all students, as guaranteed by the education articles of many state constitutions. (14)

1. Federal Equity Claims

   Immediately following Brown, in the 1960s and early 1970s, advocates of education finance reform brought cases under the Fourteenth Amendment utilizing a theory of fiscal neutrality. (15) Advocates argued that equalizing educational spending would in turn equalize educational opportunities for ali children, a right guaranteed under the Equal Protection Clause. (16) Though the fiscal neutrality theory had early judicial support, the Supreme Court eventually struck down the argument that educational equality is a federally guaranteed right under the Fourteenth Amendment, ending the federal equity wave. (17)

   The first case to address education finance reform under the federal Equal Protection Clause was Serrano v. Priest, in which the California Supreme Court declared that a funding scheme based on wealth of districts violated the Equal Protection Clause. (18) In the wake of Priest, several other states faced similar suits under the Equal Protection Clause framework. (19) The success of Priest, however, was short-lived. The United States Supreme Court, in San Antonio Independent School District v. Rodriguez, put an end to federal education funding litigation. (20)

   Rodriguez addressed disparities in educational opportunities for low income students. (21) The Court, in analyzing the Texas system, held that education was not a fundamental right and, as such, was not entitled to heightened protection under the Equal Protection Clause. (22) Using a deferential scrutiny analysis, the Court stated that Texas' tax-based system was rationally related to a legitimate governmental purpose, and thus did not run afoul of the Fourteenth Amendment. (23) The Court noted that issues of school finance and state and local property taxes were beyond the scope of federal authority. (24) The Court's analysis ended federal claims based on unequal educational funding. (25)

2. State Equity Claims

   After Rodriguez, advocates for equal educational financing were forced to look beyond the federal law. (26) Seeking relief under a different statutory scheme, plaintiffs brought substantially similar education finance claims under state constitutions. (27) Initially, defining education as a fundamental right under state constitution frameworks, rather than federal law, seemed to yield enhanced potential for education reform. (28) But courts have interpreted state equity claims with varying results. (29)

   Within a decade of Rodriguez, courts became increasingly reluctant to sustain state equity claims, (30) requiring plaintiffs to meet one of two standards in order to prove that a school financing scheme violated the respective state constitution. (31) First, the plaintiff could show that wealth-based financing was discriminatory, and as such required heightened scrutiny. (32) The courts did not want to label wealth as a suspect class, deserving of heightened scrutiny. (33) Several state programs, including Medicaid, used wealth, or a lack of wealth, to determine eligibility. (34) Defining wealth as a suspect class would put the legality of such programs in serious danger. (35) In the alternative, courts required plaintiffs to demonstrate that the current system failed to pass a rational basis analysis, a difficult burden to bear. (36)

   Furthermore, state equity claims indicated that a redistribution of wealth was necessary to provide an equal education to all children. (37) In other words, the financing available to wealthier districts would have to be lowered in order to support poorer districts. (38) Such redistribution of wealth met furious opposition as a counter-capitalist ideal. (39)

   The state equity trend dissipated and education reformers were forced to seek a third avenue to address school financing disparities: bringing actions under the education articles of many state constitutions.

3. State Adequacy Claims under the Education Article

   Currently, plaintiffs bring educational inadequacy claims under the education articles of their respective state constitutions, (40) Virtually every state has an education article in its constitution that guarantees some form of free public education, (41) Using the education articles, as opposed to either state or federal equal protection clauses, shifts the focus from the unequal funding a poorer school district receives to the question of what such funding provides, or fails to provide, for students. (42) Thus, the theory indicates that while unequal funding may not be inherently unconstitutional, disparate effects of unequal funding violate the guarantee of the states' respective education articles. (43)

   Typically, in addressing adequacy claims, a court establishes a minimum obligation guaranteed under the education article of the particular state. This minimum obligation serves as a "constitutional floor." (44) The court then looks to see if the state is meeting its minimum burden. (45) If the court determines that the state is failing to meet the standard set out in its constitution, the court must then determine whether there is a causal link between disparate financing and failure to meet the standard. (46)...