In 2007, to remedy the successful CFE v. State litigation, the State enacted a new statewide school funding system, to be phased in over four years. After two years, however, the state reversed course and reduced funding.

Currently, Maisto v. State asks the courts to enforce the state constitution, apply the legal principles in CFE to high-poverty small city school districts, and order a remedy that ensures “the opportunity for a sound basic education” to students. 

Status & Recent Developments

Maisto’s seven and a half week trial ended in March 2015. The parties are submitting their post-trial briefs and anticipate a trial court ruling in several months. Education Law Center (ELC) is co-counsel in Maisto, representing students and parents.

In 2014, plaintiffs filed New Yorkers for Students’ Educational Rights (NYSER) v. State, alleging that the state is neglecting its constitutional obligation to provide a meaningful educational opportunity to all of its students. In 2015, the NYSER plaintiffs filed a motion for summary judgment.

Major Cases


In 2008, plaintiff schoolchildren, parents, and small city school districts filed Maisto v. State (originally 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. Plaintiffs also complain of the state’s failure to fund their school districts to the level of the CFE remedy. Maisto was brought by parents and their children and Small City School Districts across the state.

The trial court denied the state’s motion to dismiss and the intermediate appellate court affirmed. In 2012, the Court of Appeals, the state’s highest court, also affirmed. 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 remanded this educational opportunity and school funding case for trial.

The evidence at trial highlighted eight districts, explaining that crucial resources are missing due to lack of funding. The plaintiffs contended, and the state conceded, that New York is over $1 billion behind in its obligation to fund these districts pursuant to its own funding formula. The state also conceded that this underfunding resulted in drastic staff cuts in all eight districts. The state further admitted that the student outcomes in the districts are unacceptable. However, the state denied that the over $1 billion in underfunding, which resulted in massive cuts to educational resources in all the districts, had any causal connection to the low student outcomes in those districts.


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,” as required by the New York Constitution. Plaintiffs alleged, inter alia, missing resources in the schools, such as certified teachers, safe buildings, books, computers, etc., and low 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 declaration that the state education finance system was unconstitutional and denying New York City schoolchildren the opportunity for a sound basic education.

The State missed the Court’s 2004 deadline to remedy the violation. After compliance hearings and a trial court ruling in favor of plaintiffs, the intermediate appellate court, in early 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, in order to comply with the constitution and the Courts’ Orders, enacted funding changes that committed the State to increase its annual education operating funds $7 billion, and provide a one-time boost in school facilities funding $11.2 billion statewide, fully phasing in both by the 2010-11 school year.

However, 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.


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. 

State Constitution Education Article

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.

Court Interpretation of Education Article

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 Maisto v. State (formerly Hussein v. State), 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. 



New York City, which educates 40% of the state’s students, is implementing Universal Prekindergarten (UPK). It plans to serve over 50,000 4-year-olds in its full-day program in the 2014-15 school year and reach universal status in 2015-16 by offering UPK to over 70,000 4-year-olds.

In 1998, New York State set a goal of providing UPK to all 4-year-olds in full-day, high quality programs. State funding has not been sufficient to meet this goal, but in the 2012-2013 school year, over 103,000 of the state’s 4-year-olds were enrolled. However, about 75% of these children attended half-day programs, according to the National Institute for Early Education Research (NIEER).

New York’s UPK reaches 7 out of 10 of the NIEER quality benchmarks. 


The state has said it 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.” But, state funding has lagged.

The UPK school year must run for 180 days. Programs may be full- or half-day, both operating 5 days a week.

School districts collaborate with Head Start, childcare centers, and other community-based providers. Programs collaborating with the district must meet the state's quality standards for the UPK program. 


NIEER reports that after four years of flat funding, the state cut funding for the 2012-13 school year, reducing enrollment by more than 8,700 children. In 2014, however, the state added $340 million for UPK for the 2014-15 school year. It pledged $300 million of that to NYC for implementation of its UPK expansion and committed to that level of funding for five years.

Participation in the UPK program is free of charge to families. 

NIEER Analysis

According to the National Institute for Early Education Research (NIEER), UPK served 44% of 4-year-olds in its state preschool program in 2011-2012. 

Quality Standards

New York’s UPK program has reached 7 out of 10 NIEER benchmarks.

The benchmarks reached were:

  • Early learning standards
  • Teacher degree and certification
  • Teacher specialized training
  • Teacher in-service
  • Class size limits of 20 students
  • Staff-child ratio of 1:10 or better
  • Screening/referral and support services  

The 3 benchmarks not met were:

  • Assistant teacher must have a Child Development Associate credential, or equivalent
  • Requirement to provide at least one meal a day
  • Monitoring/Site visit program 


Program Evaluation

As NIEER reports, beginning in 2012-2013, UPK programs in districts considered low performing by the State Education Department were encouraged to participate in QUALITYstarsNY, a quality rating and improvement system. Incentives, including access to supplemental professional development funds, and assignment of a quality improvement specialist, drew 102 UPK programs into QUALITYstarsNY in the first year.


State Highlight

New York City (NYC) is by far the largest school district in the US, and its 1.1 million students are 40% of the students in New York State. NYC also has 68% of the state’s Asian American students, 64% of its Latino students, 51% of its African American students, and about 62% of its students in poverty. Just over 41% of NYC’s students speak a language other than English at home, and over 14% are English Learners, as compared to 4% English Learners in the rest of the state.