Op-Ed: The Looming Judicial Confrontation Over Educational Reform (New York Law Journal)

By Christopher Dunn — On July 30 time will expire on the New York Court of Appeal’s directive to Governor Pataki and the New York State Legislature to implement fundamental reforms in the state’s education system. Though the legislative gridlock created by this directive has garnered considerable attention, it now is time to focus on what will happen if, as appears likely, the Legislature is unable to enact the mandated reforms by the end of the month. Should that occur, potential court-ordered reforms will differ substantially from the reforms that state officials have debated over the last year and must be viewed in light of a second major challenge to the state education system that the Court of Appeals recently agreed to consider.

Recognizing the constitutional right to a sound, basic education

In June 2003 the Court of Appeals issued its seminal decision in Campaign for Fiscal Equity, Inc. v. State of New York, holding that evidence adduced at a trial that ran from October 1999 until May 2000 proved that children in New York City were being deprived of the “opportunity of a sound basic education” as required by the “Education Article” of the New York State Constitution. In so holding, the court rejected the First Department’s controversial ruling that the Education Article required nothing more than provision of an eighth- or ninth-grade education.

Last year’s ruling marked the culmination of thirty years of litigation over the substantive rights conferred by the Education Article. A 1974 lawsuit that sought to use that constitutional provision to challenge inter-district inequities in the state’s system for financing public education was dismissed in 1982 by the Court of Appeals in Board of Education, Levittown Union Free School District v. Nyquist. In Levittown the court squarely rejected the suggestion that the Education Article mandated that educational opportunities “be equal or substantially equivalent in every district,” suggesting instead that judicial relief might be available only upon a showing of “gross and glaring inadequacy” in the education system.

The court’s rejection of Education Article “equity” claims but apparent endorsement of an “adequacy” claim spawned the Campaign for Fiscal Equity litigation. Like Levittown, Campaign for Fiscal Equity targeted the education finance system but did so under a theory that the system was providing so few fiscal resources to schools in New York City that children there were not receiving a constitutionally adequate education. The First Department dismissed the complaint in its entirety, but in 1995 the Court of Appeals ruled that the Education Article indeed allowed such a claim, thus firmly establishing the constitutional right to the “opportunity of a sound basic education.” With that ruling the court recognized for the first time that the Education Article, which dates back to 1894, could be used by advocates to force educational reform. The Court of Appeals remanded the case for trial, which ultimately led to the finding of liability affirmed by the court last June.

The remedial mandate of the Court of Appeals

As protracted and complicated as was the process establishing substantive rights under the Education Article, those challenges “pale by comparison” to those presented by the remedial thicket into which the parties and the courts are about to enter, as Judge Kaye herself acknowledged in her opinion in Campaign for Fiscal Equity. An exploration of that thicket starts with the remedial directives the Court of Appeals issued last year.

Having affirmed the liability ruling in Campaign for Fiscal Equity, the court was faced with the remedial measures that had been ordered by Manhattan Supreme Court Justice Leland DeGrasse (and vacated by the First Department when it reversed his liability ruling). Those measures included five broad mandates to the State: (1) ensure that every school district in the state had the resources necessary to provide a sound basic education; (2) reform the finance system so that it accounted for variations in the costs of providing educational services in various parts of the state; (3) provide sustained and stable funding to promote long-term planning by school districts; (4) provide “as much transparency as possible so that the public may understand how the State distributes school aid,” and (5) ensure a system of accountability to measure the effect of reforms implemented.

The Court of Appeals substantially narrowed these requirements. Most significantly, it ruled that the relief would not be statewide but instead would be limited to New York City, which was the only district where the plaintiffs attended schools. As the court explained, “Here, the case presented to us, and consequently the remedy, is limited to the adequacy of education financing for the New York City public schools . . . .” Having eliminated any relief beyond New York City, the court therefore rejected the requirement that the state finance system be reformed to account for regional cost variations. The court also rejected the requirements of “sustained and stable funding” and of transparency in the school finance system.

Notwithstanding this winnowing, the remaining relief obtained by the plaintiffs was formidable. Most importantly, the Court of Appeals directed the state to determine “the actual cost of providing a sound basic education in New York City” and then to implement appropriate funding and management reforms to as to ensure “that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education.”

In a notable act of understatement, Chief Kaye observed for the court that these steps could not be expected to be completed “overnight.” Consequently, the court gave the state “until July 30, 2004 to implement the necessary measures.”

The prospect of narrower judicial relief

The ensuing year has been marked by a spirited debate that has focused on statewide changes to the education system, but state officials have made little progress in responding to the Court of Appeals. Governor Pataki, Senate Majority Leader Joseph Bruno and State Assembly Leader Sheldon Silver have taken widely divergent positions on the necessary reforms, a blue-ribbon panel appointed by the governor produced a cost estimate for statewide reform that unhelpfully ranged over several billion dollars, and the governor took the controversial step of suggesting that education reform be financed through a substantial increase in state-sanctioned gambling. Meanwhile, lower-level elected and school officials from across the state have been debating the extent to which overall education funding must be increased and how any such increases would be distributed to school districts around the state. Not surprisingly, officials and school districts from outside New York City oppose changes that would reduce their share of state funding so that more money could be sent to New York City schools.

As has been widely reported, this controversy exacerbated the well-documented problems bedeviling New York’s legislative process, and the Legislature concluded its regularly scheduled session on June 23 without any response to the court. Absent dramatic action before July 30th, attention soon will shift back to the judiciary.

If the Court of Appeals ends up formulating specific remedial measures, those measures will be far more modest than those that have been debated over the last year. Most importantly, those measures will not be statewide but instead will be limited to New York City. While a legislative solution almost certainly would entail statewide reform given the simple fact that most officials controlling legislative action represent areas outside New York City, the Court of Appeals expressly rejected statewide remedies in its ruling last year. And while the Legislature would of course be free to supplement judicial reforms limited to New York City, there is little doubt but that initial judicial mandates will not encompass anything like the sweeping statewide changes that have been debated since last June.

Notwithstanding this, the Court of Appeals has signaled that it is prepared to step into an oversight role and perhaps to do so for decades. In defending the relief it ordered in June 2003, the court pointed to what is perhaps the longest running education-litigation dispute in the country: New Jersey. And far from treating the New Jersey experience as a cautionary tale about judicial involvement in education reform, Judge Kaye seemingly embraced it:

Finally, the remedy is hardly extraordinary or unprecedented. It is, rather, an effort to learn from our national experience and fashion an outcome that will address the constitutional violation instead of inviting decades of litigation. A case in point is the experience of our neighbor, the New Jersey Supreme Court, which in its landmark education decision 30 years ago simply specified the constitutional deficiencies, beginning more than a dozen trips to the court, a process that led to over time to more focused directives by that court.

While it remains to be seen whether Legislative inaction leads to increasingly “focused directives,” the court seems fully prepared to take on this task.

The next round of education-reform litigation

Just as the Court of Appeals may be embarking upon education reform for students attending schools in New York City, it has agreed to consider a major Education Article challenge brought on behalf of children attending schools outside of the city. In New York Civil Liberties Union v. State of New York, the court will be reviewing the dismissal of a complaint filed by a putative class of students attending approximately 250 schools across the state who allege that the educational resources – such as teachers, curricular materials, and school facilities – in those schools are so inadequate as to violate the state constitutional guarantee of the “opportunity of a sound basic education” established in Campaign for Fiscal Equity.

Unlike the Campaign for Fiscal Equity litigation, this case does not seek reform of the education finance system but instead requests relief that would require state officials to develop and implement school-specific reform plans that would assure that children in the identified “failing schools” have the educational resources needed to provide them with the constitutionally mandated opportunity for a sound basic education. And unlike Campaign for Fiscal Equity, it is not limited to schools in a single district but instead focuses on schools independent of district affiliation.

In deciding whether the plaintiffs in this second case can proceed under the Education Article, the Court of Appeals will have to resolve two major issues: (1) whether the Education Article is limited to challenges to the education-finance system or encompasses other causes of constitutionally inadequate educational services and (2) whether Education Article claims are limited to district-wide violations or apply to violations at the school level, regardless of district boundaries. And beyond these two issues, the plaintiffs will be confronted with a warning from the Court of Appeals in Campaign for Fiscal Equity about potential “imitators”: “Plaintiffs have prevailed here owing to a unique combination of circumstances: New York City schools have the most student need in the state and the highest local costs yet receive some of the lowest per-student funding and have some of the worst results. Plaintiffs in other districts who cannot demonstrate a similar combination may find tougher going in the courts.”

Should the Court of Appeals reverse the lower courts in the NYCLU case and find it states a cause of action under the Education Article, that would open the door to potential judicial involvement in educational reform that would extend beyond New York City. Given this prospect and the substantial changes that the Campaign for Fiscal Equity litigation will prompt, the New York courts are likely to be active participants in school reform for years to come.