Rebellion in education funding 

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Michael Rebell isn't a household name, but to many New York educators and parents, particularly those in New York City, he's a hero. Rebell was co-counsel for the plaintiffs in the landmark Campaign for Fiscal Equity lawsuit against the state. Rebell argued that the state was failing to provide the New York City school district with adequate funding, and therefore was not fulfilling its constitutional obligation to educate the district's students.

The suit ultimately led to the state's Education Budget and Reform act in 2007. The law was supposed to ensure adequate and equitable funding for all of the state's school districts. In addition to New York City's schools, districts like Rochester saw a substantial bump in revenue.

But then, faced with a $10 billion gap in the 2010 to 2011 budget, the Legislature introduced a mechanism called the Gap Elimination Adjustment. The GEA allows the Legislature to deduct funds from school districts across the state in order to balance the budget.

The result: education aid was severely cut as the problems on Wall Street and the recession reduced the state's revenue. Some reports put the current education aid shortfall at about $7.7 billion annually.

Rebell, a graduate of Yale Law School and professor at Columbia University, recently discussed the CFE case. In an era of "no new taxes" and a widespread belief that too much money is spent on education, Rebell says educating the state's poorest children requires more financial support. And he says he's willing to go to court again, if necessary.

An edited version of an interview with Rebell follows.

CITY: What is New York State's definition of an adequate public education?

Rebell: The Court of Appeals defined a sound basic education as a meaningful high school education that provides students with the knowledge to be productive civic participants, and to be prepared to pursue a career in the competitive global economy. That was the essence of what the court upheld in the CFE case.

Every child in the state is guaranteed this education, and the resources required to provide it.

In high-needs districts like Rochester, should education include intervention and social services?

If you're talking about after school and summer school programs, experience seems to show you need to have the city, county, and school district working together in a coordinated approach that utilizes available services in the most efficient way.

Kids from poverty backgrounds do need these kinds of services, and to a large extent they're covered by the CFE case, though not fully.

The issue here is equitable funding for all districts, so how did New York State arrive at the appropriate funding level for education in the past? And how should it be funded in the future?

New York pioneered this idea of a foundation amount, which is a sensible way to go, providing you fairly fund it. A foundation funding system says that you fairly determine what level of funding is needed to provide a sound basic education to all kids, and you guarantee that. In theory, that's what our system does, but it doesn't do it in practice for several reasons.

Even before they [legislators] froze it and started cutting back, the way the foundation system was set up in New York State didn't require localities to contribute their share. While [in Rochester] the Maintenance of Effort law requires the city to contribute about $119 million annually to the school district, many communities contribute to their schools at their discretion.

The other flaw: the foundation amount was totally artificial. It bore no relation to reality. That was the major thing that the CFE court decision changed. The court was very clear that you couldn't go with numbers that are determined by political bargaining: historically the "three men in a room."

They would start with New York City, "What percentage are we going to give that?" And they would go to Long Island, "What are going to give that?"

Then they would let the computers run a formula for the rest of the districts, and after the local legislators saw what they were getting, they would renegotiate depending on [their] political power. So it was politically run. The court said that's not what the Constitution requires.

So the court came up with an approach that the Legislature did follow in 2007.

But then because of the recession, the four-year phase in of the increased amount that would have given more to high-needs districts like New York City and Rochester did not come to pass.

Albany says it has increased education funding, but has the state actually increased it to where we were prior to the recession?

Last year they increased the budget by about 4 percent and it looks like they will increase it again this year by a little more than that. But what they're actually doing is increasing it over the inadequate base they established a few years ago. So we're about 25 percent below the foundation funding amount they adopted in 2007 after the CFE case.

We're not where we should be.

Where is the increased education funding supposed to come from?

Figuring out the best tax policy is what the legislators get paid to do, but I do recognize that the economy is not what it was in 2007. But constitutionally, that's irrelevant. The courts have repeatedly said that when constitutional rights are at stake, it doesn't matter what the state's fiscal condition is.

You're not a fan of competitive grant programs like Race to the Top. What's wrong with asking districts to reach for higher goals and rewarding them with extra funding when they succeed?

I look at it from a viewpoint of what kids need. What about the kids living in the districts that don't get the grants? Are they supposed to be left behind? Why should poor kids in New York State or New York City get this extra funding and poor kids in California, where they are desperate for money, not get anything extra?

You're also critical of the state's decision to withhold $260 million from the New York City school system as a penalty for not developing a teacher evaluation plan.

My argument is just because the grownups can't get their act together, don't penalize the kids. If they wanted to pass some law that cut the salary of the mayor, maybe there would be some logic to it. But what are you penalizing the kids for?

Is there a new CFE lawsuit coming?

I'm focusing on trying to persuade the governor to adopt some of the reforms we've been talking about. After the legislative session, I will have to access how much progress is being made.

My attitude is kids have constitutional rights and I intend to do whatever I can to enforce those rights. I'm trying to work with the executive and legislative branches, and I hope we can make progress. But if not, yeah, you always have to consider going back to court.