A Dangerous Intersection: The Corner of Law and Education

Whether they know it or not, New Yorkers are currently embroiled in education battles on multiple fronts.

The rollout of the Common Core and the growing reliance on testing has parents, students and educators butting heads with the New York State Department of Education in the court of public opinion.

Simultaneously, the New York State Association of Small City School Districts, New York State United Teachers and several school superintendents are readying themselves for three legal battles, any one of which could have serious consequences for New York students and taxpayers.

According to Dr. Rick Timbs, executive director of the Statewide School Finance Consortium, the fights are linked. “State government wants more from schools while simultaneously denying funds,” says Timbs.

The following is a look at the three legal showdowns in order of when they will arise:

Maisto, Et Al. v. State of New York

In the Campaign for Fiscal Equity case, the Court of Appeals wrote that all children can learn, but at-risk children need “an expanded platform of services.”

The Maisto case attempts to address those at-risk students.

The complaint argues that students with disabilities, English language learners and students who are economically disadvantaged have been denied the expanded platform promised by CFE. In practical terms, it means these kids aren’t receiving early intervention services or the help of reading specialists.

“It’s a travesty,” says Terry Devine, of the Albany law firm of Devine, Markovits and Snyder, which argued the case on behalf of the New York State Association of Small City Schools until recently. “Quite frankly, these kids are written off. If you have the misfortune of being born in one of these areas to poor parents, you’re out of luck.”

Maisto is informally known as the small city schools version of CFE, which focused on New York City schools. Under New York law, small city schools districts are defined as the districts of each city that according to the latest federal census have fewer than 125,000 inhabitants.

There are currently 57 small city school districts throughout New York State, but because of the expense involved in suing the state, only eight cities are plaintiffs under Maisto.

One of the eight is Utica. Over the past two years the school district has laid off 143 teachers. This year another 50 teachers could get pink slips. Fifteen percent of the students in the Utica City Schools are English-language learners, possibly because the city is home to one of the largest refugee centers in the U.S. Additionally, 16 percent of students in the Utica City Schools have learning disabilities. Yet Utica has had to cut services and increase class sizes.

“When you talk about Common Core, these kids are light years behind already. There’s no way to get these kids caught up,” says Devine. “This is a heartbreaking case. It really is.”

CFE History

In the CFE case, the Court of Appeals defined a sound basic education as a high school education that prepares a student to function as a civic participant— which in turn requires reasonable class sizes, qualified and competent teachers, enough light, heat, space and air, and the appropriate instrumentalities of learning.

Michael Rebell, the executive director of the Campaign for Educational Equity at Teachers College, Columbia University, was co-counsel for the plaintiffs in CFE. “The small cities case [Maisto] is going to present graphic illustrations about kids being hurt,” says Rebell. “If that is complemented by a statewide case that can be litigated quickly, that would make for a powerful argument before the State Court of Appeals.”

As of now, there is no statewide case. Perhaps Rebell, who also serves on the governor’s New NY Education Reform Commission, sees Maisto as a way to keep the issue alive in the public’s mind until he’s ready to file a broader suit.

“As far as I’m concerned, if we don’t get a serious recommendation in the [New NY Education Reform] Commission report, and the governor’s Executive Budget proposal does not really put us back on track to obtaining adequate funding for public schools, I think serious consideration would have to be given to filing a statewide CFE type suit in January.”

But Billy Easton, executive director of the Alliance for Quality Education, doesn’t see any reason to delay. “During Gov. Cuomo’s term, our schools have made classroom cuts every year,” says Easton. “Every year we can expect more cuts to art, music, academic courses, tutoring, guidance counselors, libraries and more. Something has to change.”

Stakeholders on all sides of the education debate agree the state’s school funding formula is inadequate and should be reformed.

“The Utica case highlights the complexity of our current school funding formula, which results in huge variations in spending per pupil across the state,” says Heather Briccetti, the president and CEO of the Business Council of New York State.

However, there is no agreement among stakeholders on how to fix the problem.

“When you look at New York broadly against the rest of the country, we spend 67 percent more than the national average, and yet we are not the top performing state in terms of outcomes. We generally are not even in the top half, although what you measure can differ from study to study,” says Briccetti. “Obviously just adding more money is not the solution—if it were, we would have the best results nationally. The state average in 2007–08 was more than $17,000 per pupil, and the national average was just over $10,000 per pupil.”

Maisto is scheduled to be heard on Nov. 20 in State Supreme Court. The proceeding is expected to last 13 weeks.

New York State United Teachers, Et Al. v. State of New York

The second suit wending its way through the court system was brought by NYSUT. The powerful teachers’ union has filed a case challenging the state’s 2 percent property tax cap, arguing it restricts districts from raising adequate revenue for schools.

Dr. Timbs argues that NYSUT’s suit wouldn’t be necessary if the state had simply kept its 2007 funding promise to begin with.

“Right now the Gap Elimination Adjustment sits at $1.638 billion dollars. The cuts alone are $8.5 billion dollars over the last four years. Schools in New York are underfunded by $5 billion dollars. If all of a sudden all this money was released to school districts there wouldn’t be a tax cap problem.”

The Empire Center’s E.J. McMahon, a senior fellow at the conservative think tank the Manhattan Institute, doesn’t see much merit in the NYSUTsuit.

Earlier this year McMahon wrote about the lawsuit on his blog,www.nytorch.org. “NYSUT has enlisted some parents of school children as co-plaintiffs, but the chief motive here is obvious: The tax cap is likely to limit future increases in teacher compensation, which is by far the largest category of local school expenditures,” McMahon stated.

NYSUT makes multiple claims in its case, including that the cap’s supermajority requirement may be unconstitu-tional because it violates the plaintiffs’ right to equal protection under the law by diminishing voting power based on their desire to increase school funding.

To this point McMahon responds, “Supermajority requirements are common across the country.”

NYSUT President Dick Iannuzzi admits that supermajorities are frequently used by legislative bodies, but argues they are almost never used at the local level with individual voters.

Another point made by the union deals with education and local control.

NYSUT’s complaint cites the 1982 decision in Levittown Union Free School District v. Nyquist, “which held that so long as children are provided with a sound, basic education, inequality of opportunity is legal, because—but only because—communities are free to provide their children with enhanced educational opportunities through the local control of their taxes and budgets.”

The complaint continues, “The property tax cap, by design, vitiates this rationale.”

Courts have ruled that it is a district’s right to go above and beyond the cost of a minimum sound basic education—which was why the Court of Appeals in CFE did not find an equal protection violation. NYSUT’s argument is that the property tax cap takes away local decision-making.

Ten of 670 school districts pierced the cap in the current school year. In other words, poor districts that want to do more for students are prevented from doing so by the tax cap—a violation, it appears, of the whole rational basis behind the Levittown argument.

Both the Alliance for Quality Education and the Campaign for Fiscal Equity have filed amicus briefs in the case.

David Sciarra of the Education Law Center says the cap puts school districts in a bind.

“On the one hand, the state is walking away from the substantial commitment on state aid it made back in 2007; and on the other hand, it’s putting in place a barrier for districts to get additional revenue off the local property tax—all of which really has a devastating impact on the quality of education that’s offered for kids in these districts.”

Iannuzzi agrees. “It is so clear that the way we fund education in New York State is dysfunctional. The Legislature has effectively ignored this issue for 30 years, and I don’t think you can ignore it any further. We have two critical opportunities in court [Maisto and NYSUT] and hopefully the Legislature will not wait for the outcome but will act in the best interest of the children of New York State right now.”

When it is suggested that some members of the Legislature could argue that 2007 was a very different time finan-cially than 2013, Iannuzzi responds by changing the parameters of the question.

“We are in a much better financial situation in 2013 than we were in 2010,” says Iannuzzi. “I could have accepted that argument in 2009 or 2010, but I don’t think you can accept that argument right now.”

Timbs concurs. “There is no doubt that the data has revealed that state aid to school districts has not been sufficient to meet the constitutional standard of a sound basic education. The presence of state aid reductions over the past four years, and the state’s inability to fund the Foundation Aid formula—which was to mitigate the problem to begin with—has resulted in huge multitudes of kids who are living in poverty receiving substandard educational programs. It’s purely a lack of funding.”

The NYSUT case will be argued on Dec. 12 in state Supreme Court in Albany.

Schenectady & Middletown City Schools DOJ Civil Rights Complaints

At the nexus of inequity and the loss of local control is a pair of civil rights complaints about to be filed with the federal Department of Justice.

The plaintiffs are the Schenectady City Schools and the Middletown City Schools.

According to Laurence Spring, the Superintendent of the Schenectady City Schools, he is filing a complaint—as opposed to a lawsuit—because he’s not alleging racism. Instead Spring is alleging something called “disparate impact discrimination,” a controversial Obama administration policy under which governments and others, in the words of a Forbes magazine article, “can be found liable for discrimination even if they had no intent of mistreating members of minority groups.”

After performing a regression analysis on the state’s own aid and student demographic data, Spring’s argument boils down to: “The higher percentage of minority students there are in a district, the more likely it is that that district will be underfunded.”

That no one had ever undertaken this kind of analysis surprised Spring, but only for a moment. “I know that race makes people uncomfortable,” he says. But Spring remains surprised by the reaction he’s received.

“I had a legislator say to me flat out, ‘Stop talking about this.’ He said, ‘Don’t use the race issue. It will hurt you.’ Then again, the governor’s office has had me in twice. I met with a budget analyst. They asked a lot of questions. They were trying to understand.”

When asked why he is filing the complaint, Spring says simply, “The pervasive poverty here.”

Schenectady has the thirteenth-highest concentration of childhood poverty in the country, which Spring says is higher than Miami or Los Angeles. It’s the kind of intense poverty that spawns clinical depression. In many instances Spring says it’s so pervasive that kids may suffer post– traumatic stress disorder.

“We have kids who are 5, 6, 7, 8 years old, yet because of the conditions they are living in on a daily basis, they have PTSD,” he says.

Spring shares a story about one middle school girl who was caught fighting. He recalls his notes about the girl’s circumstances, making sure that the facts are vague enough so the girl cannot be identified: “In reviewing her educational background, it becomes clear that the child has been repeatedly exposed to trauma, and she has witnessed violence being done to her mother and her sister. Additionally she has been subject to some of this same violence. She also witnessed a parent suffer a significant and life-threatening tragedy.”

For Spring this is personal. “How are we going to begin to untangle the life that some of these kids are living so that they can focus on the Common Core and become college- and career-ready when we are being underfunded by $62 mil-lion every year? We don’t come close to providing the services these kids need.”

The Schenectady City Schools and the Middletown City Schools plan to file separate complaints, but the districts are coordinating in both language and timing. During the first week in November they will file their complaints with the Department of Justice office in Manhattan.

Money

Briccetti agrees there are funding inequities in the state, but doesn’t think it’s racial. “I suspect that the underlying reason for the disparity has more to do with the relative wealth of the districts than the racial composition of the student population, but I have not seen any of the data sets.”

McMahon argues in all of these actions—Maisto, NYSUT and the civil rights complaints—the plaintiffs are wrong to add the taxpayer money that wealthy districts choose to pay for education. “What should matter is the state aid formula,” contends McMahon. “At the end of the day, poor districts get more state aid than wealthy districts.”

Spring sees it differently. “One of the things the governor likes to say is that New York spends more per pupil on average than any other state in the nation. However, in terms of the equity of that spending, we distribute that money more equitably than only five states. We are 44th in the nation in educational spending equity.”

McMahon is not swayed. “We shouldn’t have some group of self-appointed experts who consider themselves to have the purest motives to decide how to spend $20 bil-lion of taxpayer money. In our system we elect a Legislature to do that, and again, it’s hugely in favor of the poor districts. At the end of the day Buffalo still gets about 20 times more per pupil than Scarsdale, which is as it should be.”

Whether any change in school funding is mandated by a court may depend on a person who has had some past success there. Indeed Michael Rebell sounds like a man making preparations.

“It’s now a decade since New York’s highest court powerfully declared that every child in New York has a constitu-tional right to a sound basic education,” says Rebell. “Too many of our kids are not getting it. It’s time to bring this issue to a head.”

Susan Arbetter (@sarbetter on Twitter) is the Emmy Award-winning news director for WCNY Syracuse PBS/NPR, and producer/host of The Capitol Pressroom syndicated public radio program.