If Governor George Pataki needs a motto to hang above the mantle in his new home on Lake Champlain, he could consider "Haste Makes Waste." Education advocates might prefer, "Justice Delayed is Justice Denied."
During his 12 years in office, the outgoing governor tried to block legal efforts to get more funding for the city's public schools. He fought the suit brought by education advocates, and when the courts ordered the state to provide billions more in funding, he refused to comply, going back to the courts again.
Last week, Pataki's maneuvers paid off for him. In what many believe will be the final legal decision on the Campaign for Fiscal Equity lawsuit, the state's highest court -- a court shaped by George Pataki--ruled that students do have a constitutional right to a decent education. But, in a victory for the governor, it set the price tag for this at an additional $1.93 billion. While this is, as one CFE lawyer put it "not pocket change," it is far less than the $6 billion sought by many school advocates and less than Pataki himself had once proposed. (For the court's decision and the dissenting opinion, click here.)
With Pataki about to leave office, many observers believe the chief beneficiary of the way he handled the case will be Governor-elect Eliot Spitzer, who will not be forced to provide as much as $8 billion more for schools across the state while at the same time keeping to his pledge not to increase taxes. Spitzer will, though, be under intense pressure from the Campaign for Fiscal Equity and other groups, such as the Alliance for Quality Education. They have vowed to fight for the $4 billion to $6 billion in additional funds they think the city needs to reduce class size, improve teacher training, expand pre-kindergarten programs and ensure that all students graduate.
WHAT THE COURT SAID
In its ruling, a majority of the Court of Appeals said some things that cheered the coalition of education advocates who had brought the suit. The decision reiterated earlier rulings that there is a link between funding for schools and the schools' ability to provide a good education. The court established the right to a sound basic education in its decision, according to Michael Rebell of the Campaign For Fiscal Equity. "Whatever the dollar amount, there's a constitutional obligation, and it's a permanent obligation," he said. "These are not minor things."
On the money, though, the court ruled that in calling for as much as $5.63 billion in additional funding, the lower courts had overstepped their bounds. "The role of the courts," Judge Eugene Piggott wrote in the decision, "is not to determine the best way to calculate the cost of a sound basic education in New York City schools, but to determine whether the state's proposed calculation of that cost is rational." Faced with a number of figures, the court adopted the lowest proposal: the $1.9 billion.
CHRONOLOGY OF THE CASE
This money, adjusted for inflation and with a few reductions from some increases in aid over the past few years, would come on top of the New York City Department of Education's current budget of more than $14 billion. About $6 billion of that now comes from the state.
The $1.9 billion figure came from the Zarb commission, a panel appointed by Pataki after the 2003 Court of Appeals ruling that city schools needed more money.
The commission hired Standard and Poor's to devise a way to determine how much more money New York City schools should get. The firm came up with a formula that looked at spending in successful school districts, added additional money for disabled, economically disadvantaged and non-English speaking students and considered the cost of living. Based on this, the commission determined city schools needed an additional $1.9 billion to meet their obligations.
Aspects of the formula have produced controversy. Standard and Poor's ranked all the districts according to expenditures and decided not to consider those in the top half, because, Piggott said in his ruling "not all successful schools operate in a manner that is economical."
In her dissent, Judge Judith Kaye, with the concurrence of Judge Carmen Beauchamp Ciparick, called the decision to exclude 50 percent of districts "wholly arbitrary." And she noted it eliminated districts in Westchester and Nassau which border New York City and whose schools have a number of similarities with the city's.
The state can increase the $1.9 billion, the court said, but that remains the job of the governor and the legislature. "The legislative and executive branches of government are in a far better position than the judiciary to determine funding needs throughout the state and priorities for the allocation of state resources," Piggott wrote.
But Kaye said the courts had had no choice but to step in. "There is no state budget plan for bringing the schools into constitutional compliance," she wrote. "That is precisely the problem."
The court abandoned an earlier ruling that the state government institute a five-year $9 billion capital plan for school construction and physical improvements because the Bloomberg administration and the state government have already agreed on and implemented a plan to build new schools.
And the court majority dismissed calls for new accountability measures to monitor the city Department of Education's use of the additional state money. "A new and costly layer of city bureaucracy is not constitutionally required," Piggott wrote.
Mayor Michael Bloomberg cheered this aspect of the ruling , saying he was "very gratified that the state's highest court has recognized all of the progress we have achieved and agreed with the city's argument that our schools don't need new state oversight and management."
Whatever the merits of the legal arguments by both sides, the decision may reflect changes on the court. Pataki appointed all four judges who were in the majority in the ruling, and Piggott, who wrote the decision, assumed the bench just in October of this year. His predecessor, Mario Cuomo, appointed the two dissenters, Kaye and Ciparick. (A fifth Pataki appointee, Victoria Graffeo, recused herself because she served as state solicitor general during some of the litigation on the case.)
A court "jam-packed with Pataki appointees... lacking the courage of its convictions... issued the legal equivalent of 'never mind,'" refusing to take on the governor and the legislature, the Daily News protested.
But other saw it differently. "In one of his more beneficial legacies, Pataki stocked New York's highest court with judges who were unwilling to micromanage policy," cheered E.J. McMahon.
WHAT THE COURT DIDN'T SAY
As has been the case in previous decisions, the court did not address some issues.
Deadlines: It did not, for example, set a date by which the schools have to get the money. In a press conference following the decision, Geri Palast, executive director of CFE, said she expected the money would be provided in Spitzer's budget for the 2007 fiscal year, which he issues early in 2007. Assuming the legislature meets its obligation to approve a budget by April, the funds would be in place when schools open in September 2007. That may make sense but is not addressed in the court ruling.
Who Pays: The court, as other courts have done, did not rule on whether the state government had to provide all the money or whether it could share the burden with City Hall. When the likely hike was pegged at $4 billion to $6 billion, many officials said the city would have to pick up about 25 percent of the cost. Bloomberg has steadfastly resisted this idea.
With the number far lower, there may be less pressure on City Hall to up its contribution. And Bloomberg tried to bolster that, saying "New York City has already increased the amount we spend for schools by $3.5 billion a year...We now look forward to receiving additional funds from the state."
The rest of the state: The court also said nothing about funding for other cash starved districts. The same calculations that came up with the $1.9 billion would result in approximately $500 million more to be divided among needy districts in the rest of the state, but this is not spelled out.
The funding formula: And the court did not discuss the state's funding formula for education. This complicated calculation, which Pataki has called a dinosaur, defies comprehension and protects many suburban districts, preserving funding even in the face of declining enrollments.
For many of those seeking more money for schools, the new ruling presents a clear disappointment. If the money is phased in over three to four years -- something the court did not preclude -- the total figure "would be much closer to the amounts by which the state and city have been increasing school funding in recent years anyway," wrote David Shaffer of the Business Council of New York State.
The $2 billion for city schools instead of $6 billion or more, "means lower test scores, it means children who can't read; it means children who can't do math; it means more children don't graduate," said Joseph Wayland, counsel for CFE.
City Councilmember Robert Jackson, who helped bring the suit in the early 1990s, was especially critical. Calling $1.9 billion a "Band-Aid solution," he said in a statement that the decision represented "an outrageous response to evidence that was upheld through multiple appeals and 13 years of struggle."
Other critics maintain there is little connection between money for schools and achievement in schools. Increasing school spending, they say, will boost taxes without producing better-educated New Yorkers." The tragedy of CFE," the Sun argued in an editorial "is that not one dollar of the money the taxpayers are going to be forced, against their will, to pay over to the schools is going to benefit the children who are forced by law to attend these schools."
And so, while the legal fight appears over for now, the political battle may have just begun. CFE and other advocates promptly called for Spitzer to make good on his plan to provide at least an additional $4 billion for city schools.
"Governor-elect Spitzer has said that when it comes to public education, he is seeking excellence not mere competence and efficiency," Palast said in a statement. "I am confident that through negotiation with the new governor and the legislature, our elected leaders will come through with the right amount of funding, combined with strong accountability measures, and finally deliver for our kids."
But Spitzer would not commit to any figure. He did say, "We must provide more money than this constitutional minimum. The executive budget I submit in February will propose significant additional funding on a statewide basis."
However much Spitzer decides to press for, he needs the approval of the legislature to make it a reality. The Assembly has generally supported more money for city schools, but the Senate, where upstate and suburban Republicans hold sway, has balked.
While the ruling creates a bit of a quandary for Spitzer, who as attorney general had to defend Pataki's position in court, most observers consider it a victory for him. "He gains a lot more maneuvering room in putting together his budget," wrote Bill Hammond on the Daily Politics. "If he does come up with $4 billion or more for the New York City kids, he'll get credit for showing leadership on education, not merely following a court order."
Spitzer also must decide where that money should come from. Even when he thought he was looking at an $8 billion additional bill for education statewide, Spitzer said he would not increase taxes. But critics of more school spending have long said it would necessitate tax hikes. A smaller settlement makes it easier to find the money.
WHERE WILL IT GO
Parents, teachers and school administrators have such a long wish list for the public schools that it seemed $6 billion would barely cover it, let alone $2 billion. The Bloomberg administration set out its ideas in a report to the court in 2004, and City Council last year released its own plan, drafted by a committee chaired by former District 2 Schools Superintendent Anthony Alvarado.
Here are some of the possibilities:
Smaller Class Size
The City Council committee, the teachers union, and a number of city politicians have urged that a significant chunk of the CFE money go reducing to the number of students in city classrooms, particularly in the elementary school grades. They argue that classes in the city are bigger than those in much of the rest of the state and that no single reform would do more to boost student achievement.
While calling the court's ruling "extremely disappointing," Leonie Haimson of classsizematters.org Class Size Matters said that if a "significant share" of the $1.9 billion went toward bringing down the number of students in each city classroom it would probably "be sufficient."
In general, while the administration has said it has reduced class size, it has not made it a priority. The Bloomberg administration's proposal for the CFE money did not include any major proposal to cut class size, and audits by the state comptroller have found that the Department of Education did not use state money aimed at reducing class size for that purpose.
In its plan, the Bloomberg administration called for a new half-day program for three-year-olds, expanding pre-k programs for four-year old to a full day. Most education advocates would endorse such a plan. But CFE counsel Wayland notes that the $1.9 billion was based on spending only for grades kindergarten through 12 and so could preclude spending the money for pre-K.
Improving High Schools
There is general agreement that some of the additional funding should go toward improving the low high school graduation rate in city schools. In its plan, the Bloomberg administration stressed its proposals for more charter schools in the city and for continuing and increasing effort to replace large failing high schools with small schools. While a number of such schools already exist, many still need permanent homes, and there is concern over their long-term survival after money from the Gates Foundation and other outside sources runs out.
Others have suggested that the Department of Education use some of the funds to create good vocational programs that could encourage students who are not college bound to remain in high school.
Better Teacher Training and Pay
Most proposals call for some efforts to recruit and keep qualified teachers in the school system. The Bloomberg plan calls for new career advancement programs, merit pay and recruitment programs. The council report recommends higher salaries for teachers in low performing schools and new assessment measures.
Even without the CFE money, though, teacher salaries are slated to go up, under a new contract agreement (still to be ratified) reached between the uft.org United Federation of Teachers and City Hall. The contract appears to abandon efforts to exact productivity gains to pay for the raises, and the money for them would come out of general city revenues.
Other proposals call for spending some of the money on special education and instruction for non-English speakers.
Having some $4 billion less to spend than school officials had hoped for will force the Bloomberg administration to make some tough choices on education. "In terms of priorities, universal prekindergarten along with funding lead teachers in math and science in our high-needs schools are at the top of the list,” Schools Chancellor Joel Klein said in a written statement to the New York Times.
But Joseph Viteritti, a professor of public policy at Hunter College, told the Times he was afraid the Department of Education might use any reduction in the CFE settlement as an excuse for problems in the schools. "People inside the system will always have the impression that they didn’t get enough, they didn’t get what they deserved and if we only had more,” he has said. “That’s always going to be there as a kind of alibi.”
However much additional money comes to the city, some parent groups and others have expressed concern about how any spending decisions would be made. Class Size Matters has called for an array of accountability measures including review by state officials and City Council approval of a spending plan. "Everybody ... feels that under mayoral control, there's been even less accountability and transparency than before," said Haimson.
Even as the CFE legal fight may be winding down, another legal action continues. A group of school districts in small cities elsewhere in the state have brought a suit challenging their funding from Albany. Although a judge dismissed the action this summer, the districts say they will press their case. Other similar challenges seem inevitable.Â