K-12 public schools in New York enroll over 2.7 million students, with 45% in poverty, 7% learning English, 49% minorities, and annual expenditures of over $46 billion. (Most recent NCES data)
After the successful CFE v. State litigation on the state’s constitutional duty to provide the opportunity for a sound basic education to all schoolchildren, the State adopted a statewide funding remedy, to be phased in over four years.
Currently preparing for trial, Hussein v. State asks the courts to: require the State to honor its CFE funding remedy, now erased; and, apply the legal principles in CFE to the State’s high-poverty, small-city school districts and then order a remedy that adequately addresses their students’ needs.
In June 2012, in Hussein v. State of New York, the Court of Appeals, the state’s highest court, affirmed lower court decisions that denied the state's motion to dismiss. In its 6-1 decision, the court rejected the state's two arguments by holding that "Plaintiffs' claims are neither moot nor unripe for review," and enabled this educational opportunity and school funding case to proceed to trial.
In 2009, the State halted the phase in of the CFE remedy, and, during the 2010 and 2011 legislative sessions, reversed the remedy entirely. State funding of K-12 education, for 2011-12 was below 2006-07 levels. Importantly, a newly enacted local property tax cap and state school funding “growth cap” permanently scuttle funding the remedy, unless the legislature revises these provisions.
Advocates continue pressing the State to restart its commitment to provide a sound basic educational opportunity. In 2006 and 2007 remedial legislation, the State changed its school funding system to comply with the constitution and pledged to increase annual state foundation aid $7 billion and school facilities funding $11.2 billion, fully phasing in both by the 2010-11 school year.
In 2008, plaintiff schoolchildren, parents, and small city school districts filed Hussein v. State and asked the court to apply the state constitutional principles in CFE to their school districts. They allege that their districts, which serve high percentages of disadvantaged students, have inadequate funding to provide the opportunity for a sound basic education. In their amended complaint, plaintiffs also complain of the state’s failure to fund their school districts even to the level of the CFE remedy. Hussein was brought by 101 parents and their children and 13 Small City School Districts across the state.
The trial court denied the state’s motion to dismiss, and in early 2011, the intermediate appellate court affirmed. In 2012, the Court of Appeals, the state’s highest court, also affirmed. The parties are preparing for trial.
In 1993, in Campaign for Fiscal Equity (CFE) v. State, plaintiffs filed a complaint alleging that the 1.1 million students in New York City were not receiving the opportunity to obtain a sound basic education, based on missing resources in their schools, such as certified teachers, safe buildings, books, computers, etc., and based on test scores and graduation rates. In 1995, the Court of Appeals found that this constituted a valid claim under the New York Constitution’s Education Article and remanded the case for trial.
In 2003, the Court of Appeals upheld the trial court’s holding that the state education finance system was unconstitutional and denying New York City schoolchildren the opportunity for a sound basic education. The State missed its 2004 deadline to remedy the violation.
After compliance hearings and a trial court ruling in favor of plaintiffs, the intermediate appellate court, in March 2006, ordered the state to increase capital funding for New York City schools by $9.2 billion. Later, in 2006, the Court of Appeals reiterated its 2003 findings that the funding system was violating the state constitution.
In its 2007 session, the legislature enacted funding changes that committed the State to increasing annual education funding $7 billion statewide over four years and created new accountability provisions, “Contracts for Excellence,” among other provisions. However, the State has responded to the recent recession by backing away from its commitments and cutting education funding.
In 1982, in Levittown Union Free Sch. Dist. v. Nyquist, the New York Court of Appeals, the state’s highest court, held that the state constitution did not mandate equal per-pupil funding across districts, but did require the State to provide students the opportunity to obtain “a sound basic education.” However, the plaintiffs had brought an equal funding case and, therefore, had not presented evidence of a lack of the opportunity for a sound basic education.
The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” N.Y. Const. art. XI, § 1.
In Levittown Union Free School Dist. v. Nyquist, 57 N.Y.2d 27, 439 N.E.2d 359, 453 N.Y.S.2d 643 (1982), the New York Court of Appeals, the state’s highest court, interpreted the Education Article to require the state to provide students with the opportunity to obtain “a sound basic education.” In subsequent cases, the court has clarified and expanded on this standard.
In Campaign for Fiscal Equity v. State (CFE I), the court provided what it called a template definition of a sound basic education for the parties and the trial court to explore on remand. The court, like courts in many other states, tied the standard to preparing students to exercise citizenship duties; it said, “Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” 86 N.Y.2d 307, 316 (1995).
The court further stated:
“The State must assure that some essentials are provided. Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas.” 86 N.Y.2d 307, 317 (1995).
The Court of Appeals, in CFE II, further established that a sound basic education requires that students have the “opportunity for a meaningful high school education, one which prepares them to function productively as civic participants.” 100 N.Y.2d 893, 914 (2003). The court also stated that a sound basic education must prepare students to compete for jobs that enable them to support themselves. Id. at 906.
In response to State arguments that these cases were non-justiciable, the court has written, inter alia, “[w]ith full recognition and respect…for the distribution of powers in educational matters among the legislative, executive and judicial branches,…it is nevertheless the responsibility of the courts to adjudicate contentions that actions taken by the Legislature and the executive fail to conform to the mandates of the Constitutions which constrain the activities of all three branches,” in Levittown v. Nyquist (1982). And, in CFE II, the court stated that though “[w]e have neither the authority, nor the ability, nor the will, to micromanage education financing…it is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution, and order redress for violation of them.” 100 N.Y.2d, at 925.
In Hussein v. State (Hussein I), the Court of Appeals followed its precedents in Levittown, CFE I, and CFE II to deny the state’s motion to dismiss and remanded for trial, while also rejecting the State’s argument in its brief that the court should overrule its own decisions and declare the issues non-justiciable.
In 2007-2008, New York combined its 2 preschool initiatives, the Universal Prekindergarten program (UPK) and the Targeted Prekindergarten program (TPK). The combined program operates under the name, Universal Prekindergarten program (UPK). The goal of UPK is serve all 4-year-olds.
UPK is rated a 6 out of 10 on the established quality indicators and serves 45% of 4-year-olds.
The state Board of Regents’ policy on early education recognizes the urgent need “to ensure that all students get a good start in school” through educational programs “that start early and are high quality and developmentally appropriate; standards-based; staffed by highly qualified teachers and administrators; and embracing of the multicultural and diverse communities that they serve.”
The Universal Prekindergarten Program, which started in 1998, aims to offer preschool education to all 4-year-olds in the state if New York. New York’s Experimental Prekindergarten (EPK) Program, which later became the Targeted Prekindergarten Program (TPK), started in 1966. During the 2007-2008 school year, TPK was incorporated into UPK; funding increased by 50 percent all school districts in the state were eligible to receive UPK funding for the first time.
Districts are encouraged to serve eligible children through collaborative efforts between the school district and other eligible agencies. Not less than 10% of the total grant award to school districts must be set aside for subcontracts with Head Start, private childcare agencies and other community providers, including libraries and museums. Programs collaborating with the district must meet the state's quality standards for the UPK program.
Eligibility for a UPK program requires that a child reside in the school district that operates the program and be 4-years-old by December 1st of the year of enrollment or be eligible to enter public school kindergarten the following year.
Until the program is able to serve all eligible children, programs must establish a lottery/random selection process to fill available slots.
Eligibility for existing TPK programs is based on age and educational need. At least 80% of the children served by the program should be economically disadvantaged, defined as eligible for a federal assistance program.
The UPK school year must run for 180 days. Programs may be full- or half-day, both operating 5 days a week.
The Commissioner of Education awards grants for the establishment and implementation of UPK programs. Districts are provided annually with projected allocations and projected numbers of children to be served based on a funding formula.
The formula calculates a grant per pupil amount generally equal to half the district’s per pupil foundation aid amount for K-12 students. Program Funding above that level comes from local resources.
Participation in the UPK program is free of charge to families.
According to the National Institute for Early Education Research (NIEER), UPK served 45% of 4-year-olds in its state preschool program in 2009-2010.
UPK and TPK, since they are now combined, are assessed by NIEER together. The program has reached 6 out of 10 benchmarks.
The 6 benchmarks reached were:
- Requirement that teachers have specialized training in pre-K education
- Teacher in-service (15 hours)
- Class size limits of 20 students
- Class ratio of 1:10 or better
- Screening/referral and support services
- Monitoring/Site visit program
The 4 benchmarks not met were:
- Early Learning Standards
- Teacher must have Bachelor’s degree
- Assistant teacher must have a Child Development Associate credential, or equivalent
- Requirement to provide at least one meal a day
In 2009-2010, the UPK program collected data on screenings, progress monitoring and outcome assessment, which will become an annual data collection effort.
New York Administrative Code