New York State still owes $4.2 billion to public schools, most of it to schools in low-income communities of color!

The executive budget that Gov. Cuomo is about to issue flouts the constitutional right of all students in New York State to the opportunity for a sound basic education in two significant ways.

First, the governor’s proposal would provide an increase of only $428 million in basic foundation aid for schools statewide. That’s less than 3.9% of the current $4.3 billion gap between the amounts appropriated for the current year and the amounts called for in the foundation-aid formula the state adopted in 2007 to ensure fair and adequate education funding after the Court of Appeals’ decisions in the landmark Campaign for Fiscal Equity litigation.

Second, the governor is proposing to eliminate the foundation-aid formula effective fiscal year 2019 — and apparently return the state to the unconstrained system of political dealmaking that the Court of Appeals specifically held to be unconstitutional in its 2003 CFE opinion.

(His administration says that’s not what he’s doing, but the technical language clearly indicates that starting in 2019 school districts will be guaranteed only the amount they received the previous year, there would be no formula to justify and provide further increases, and any additional funding would depend on the year-to-year discretionary decisions of the governor and the Legislature.)

In the CFE case, the court determined that for decades, annual state aid for education had been determined without regard to actual student needs through political wheeling and dealing. The court then held that state funding for education must be determined on a systematic basis that would “align funding with need,” be based on the “actual costs” of providing students the opportunity for a sound basic education and ensure that every school has sufficient resources.

The foundation-aid formula adopted in 2007 — which has not been fully funded since 2009 — was responsive to that call.

It is true that elements of the current foundation aid formula may be out of date and in need of revision. However, to change the current formula in conformance with constitutional requirements, the state would need to institute a valid new cost analysis to determine actual current costs and develop a new, equitable distribution formula. It cannot simply revert to determining educational allocations through political dealmaking, with no regard for the adequacy of funding levels or relative student need.

Paul Francis, a member of the governor’s staff, wrote in an op-ed last year that the Court of Appeals CFE ruling at this point is merely “symbolism” and has no lasting significance. This is constitutional nonsense. CFE was not a one-time ruling issued solely to remedy the inadequate funding levels the court had found in the New York public schools at the time of the trial. Like other major pronouncements of constitutional rights, the opinions were definitive, enduring and highly significant legal proclamations that elucidated precisely the state’s continuing constitutional obligations to all of its school children.

Francis also argued that in 2006 the Court of Appeals “codified” a very low funding level that has now been met. This is not the case. The Court of Appeals in its 2006 opinion made clear that the governor and the Legislature, and not the court, had the responsibility to determine the actual cost level. What the court did at that time was to order the governor and the Legislature to overcome promptly an impasse they had reached in their attempts to comply with the court’s orders.

The court indicated that it would accept any reasonable figure the governor and the legislature agreed to within a range that included both the low number that Gov. George Pataki had advocated at the time and a much higher number that the lower courts had endorsed. Gov. Spitzer and the Legislature did overcome the impasse; in doing so, they adopted the foundation aid formula that produced funding levels at the high end of the range largely because they gave significantly greater weight to the needs of low-income students and English language learners than had Gov. Pataki.

Unless and until the State goes through a meaningful process to determine the current actual cost of providing a sound basic education and develops a new, equitable distribution formula, it is constitutionally required to continue to provide school districts the amounts called for in the foundation formula.