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STATE FUNDING EQUITY

Fall 99 (v4#2)
City Students Finally Get Their Day in Court

Mark your calendar: October 12 will be an historic day for education in New York State. On that morning, at the State Supreme Court- house in lower Manhattan, opening statements will be made in the trial of CFE v. State of New York. At stake may be the entire way New York pays for its public schools.

At the heart of the trial is a key question: are all of New York’s students getting a fair opportunity for a quality education? According to the Campaign for Fiscal Equity, Inc. (CFE), the answer to that question is no, and New York State’s education finance system is largely to blame.

"The system we have now is completely unfair and irrational, and it doesn’t target enough money to meet the educational needs of our kids," said Michael A. Rebell, CFE’s executive director and counsel. "State funding for education has to be spent in a logical and fair way that helps all students meet high standards."

In its legal challenge, CFE charges that the state education finance system denies thousands of students in New York City the opportunity for a "sound basic education." In a 1995 preliminary ruling in CFE v. State, New York’s highest court ruled that every child in the state is entitled to that opportunity.

CFE attorneys point to statistics published by the State Education Department that show a significant spending gap between New York City and many other districts. According to this year’s edition of New York: The State of Learning, the average district in the state spent $9,321 per pupil in 1996-97. New York City, however, spent only $8,171 per pupil, while the average downstate suburb spent in the neighborhood of $12,600. In court documents, state attorneys have conceded that the city receives at least $455 less in state aid per enrolled student than the statewide average. CFE argues that because of this under-funding, thousands of city students attend overcrowded schools with limited supplies and a shortage of experienced, qualified teachers.

This shortfall in state spending in New York City is even more alarming, says CFE, in light of the extraordinary educational needs of New York City students. For example, the city educates 80% of the state’s Limited English Proficient (LEP) students. In addition, sixty-two percent of New York City’s students live in areas of concentrated poverty. In other words, those with the greatest needs are receiving the least resources.

However, as Mr. Rebell is quick to point out, the trial has implications for students all across New York State. "Our goal is to change the funding formula so that it benefits all students who are not currently getting the opportunity for a sound basic education, in New York City and in other under-funded districts throughout the state."

Making the Case
At trial, CFE will argue that the current funding system relies too heavily on local funding sources. CFE also charges that the extremely complex finance system is more a reflection of political agendas than of a rational plan to give students the resources they need to achieve. A number of state officials, including Comptroller H. Carl McCall, have stated publicly that the funding system does not operate as an objective formula but is regularly manipulated by state legislators.

In spite of the state’s efforts to limit and delay pre-trial discovery, CFE attorneys have combed through thousands of documents and deposed hundreds of witnesses. Together with their co-counsel at the firm of Simpson Thacher and Bartlett, CFE’s legal team has assembled a group of 20 experts from across the country. This list includes such notable figures as Robert Berne, Vice President at New York University; Ronald Ferguson of Harvard’s Kennedy School; Linda-Darling Hammond and Henry Levin of Stanford University; David Monk of Penn State University and noted reformer Henry Slavin. According to Mr. Rebell, during the trial these experts will demonstrate not only that New York City students are being harmed by the current funding system, but that more money spent properly can dramatically improve the achievement levels of city students.

For example, CFE’s expert on class size reduction, Professor Jeremy D. Finn from the State University of New York at Buffalo, will demonstrate that class sizes make a significant difference in student achievement–particularly for high-needs and minority students. According to Professor Finn, students who are in small classes from kindergarten to 3rd grade reap long-lasting educational benefits. Class sizes in New York City– especially in these crucial early grades–are so large that they create a significant learning disadvantage for the city’s children. (see article on p.12)

On the other side of the case, the state Attorney General’s office has also prepared extensively for trial, enlisting 17 expert witnesses, deposing dozens of officials from the New York City Board of Education, interviewing school principals and visiting public schools in the five boroughs. The state’s expert witnesses include Eric Hanushek, who has argued that money does not matter in a child’s educational success; David Armor, who has testified in other school finance litigations that socio-economic factors, not inadequate schools, prevent certain students from succeeding; and Christine Rossell, a long-time opponent of bilingual education.

The Attorney General has also enlisted the Atlanta-based law firm of Sutherland Asbill & Brennan to serve as his co-counsel. The firm is renowned for defending against school funding and desegregation suits nationwide. Public records show that the state of New York has already paid Sutherland Asbill & Brennan close to $4 million for its services, a fact plaintiffs call an outrage.

"To call in an out-of-state law firm and pay them millions to defend New York’s current funding system is, frankly, scandalous," said Mr. Rebell. "I don’t know of any other school funding lawsuit where state defendants have taken such steps to defend the status quo."

A Case of Discrimination?
In addition to its claims under the state constitution, CFE’s case also includes a charge that the current state education finance system violates Title VI of the federal Civil Rights Act of 1964. Title VI prohibits racial or ethnic discrimination in programs that receive federal funds. CFE argues that since 74% of the state’s minority students attend New York City public schools, and minorities make up 84% of the city’s student body, the current funding system has a disproportionately negative effect on New York State’s minority children.

This argument has recently gained support from some surprising corners. Last month, both the United States Department of Justice and the Black and Puerto Rican Caucus of the state legislature filed amicus briefs supporting CFE’s Title VI challenge.

The briefs came in response to a motion recently filed by state attorneys which argued that CFE had no grounds to bring the Title VI claim and asking Justice Leland DeGrasse of the New York Supreme Court to dismiss it. According to the state, the shortfall in funding for minority students is simply a by-product of 47 different state aid formulas and grant programs which the state considers legitimate and necessary to address students’ educational needs and the wealth of each school district.

In its brief, the Justice Department supported CFE’s right to bring the claim and the group’s argument that the state is liable for any violation of Title VI in distributing funds for education. The Legislative Caucus argued that the state must get involved on this issue because the legislature has failed to distribute education funds fairly.

"At a time when two out of every three city fourth graders fail a statewide reading and writing test, our schools need more resources to hire qualified teachers, build classrooms and buy books," said Assembly and Caucus Member Barbara Clark. "Hopefully, this lawsuit is going to do what we have not been able to do in the state legislature: have a court answer to the fact that we are not able to legislate a more equal or more adequate set of funding guidelines for the City of New York."

Rally for Fair School Funding Planned
While CFE is poised to make its case in court, the group also realizes the importance of building a ground swell of public support beyond the courthouse walls. In fact, CFE plans to begin mobilizing support on the very first day of trial, by holding a "Rally for Fair School Funding" on the morning of October 12.

"It’s critical that we seize this moment," said Jessica GarcR a, CFE’s community outreach director. "Now is the time to show the media, the court, and the state’s political leaders just how much public support there is for real school funding reform in New York State. That support is what’s going to make the difference after the court battle is won."

The Rally for Fair School Funding will begin at 9:30 a.m. outside the State Supreme Courthouse in Foley Square in lower Manhattan. A number of prominent activists and city leaders will address the crowd, which is then invited to enter the courthouse and watch the first day of proceedings. In fact, CFE hopes to maintain a strong community presence in the courtroom throughout the trial and will be coordinating trial attendance by civic groups, parents, students, educators and members of the general public.

While hundreds make their way to the CFE rally by subway and bus, one dedicated group of activists plans to show their support for fair school funding by marching from the top of Manhattan down to the courthouse for the start of trial. The group will be led by Robert Jackson, a member of Community School Board Six who was the driving force behind CFE’s legal challenge and now serves as Chair of the group’s Board of Directors. On the morning of October 12, Mr. Jackson will march all the way down Broadway to Foley Square from his home in Washington Heights. And he is encouraging other concerned New Yorkers to join him along the way.

"I’m marching to draw as much attention as possible to this issue, plain and simple," said Mr. Jackson. "I would love to have hundreds of people join me in order to show those with the authority to change the funding system how important this is to the people of New York."

CFE Steps Up Public Engagement
The trial of CFE v. State will be hard-fought, involving mountains of evidence and probably lasting between three and four months. As the trial moves forward, CFE plans to step up its outreach efforts to discuss key issues raised in the case with local and statewide groups. Over the past three years, CFE, a coalition of parent organizations, community school boards, advocacy groups and concerned citizens, has been conducting a "public engagement process" in connection with its pending legal trial. CFE has brought together diverse groups of people–from education advocates, business, civic and religious leaders to parents, students and taxpayers –in forums and conferences to discuss issues of funding and educational reform. The group has also been able to expand this process throughout the state with the help of its partners in a collaborative effort known as the Equity Reform Project: the Educational Priorities Panel (EPP), the League of Women Voters of New York State, the New York Urban League and the State Communities Aid Association.

Now that the suit is going to trial, said Ms.GarcR a, public dialogue about school funding reform is even more important. "This case has enormous implications for all of our kids and for the future of this state, so we need parents, community leaders, business people –everyone, really–to get involved in finding a better way to fund our public schools." CFE plans to hold briefings and outreach meetings to provide updates on developments in the case and to discuss key reform issues. In the spring, CFE will hold regional forums across New York State.

EPP joins CFE in encouraging everyone with a stake in education to come out and show their support for fair funding of our children’s schools. CFE has set up a hotline to provide updates on the trial and related outreach events; the number is (212) 867-8455 ext. 230. CFE will also post updates on its website, www.cfequity.org. If you would like to attend a day of the trial, find out more about the rally or curriculum project please call Jessica Garcia at (212) 867-8455 ext. 218.

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