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Robert Biggerstaff, Executive
Director for the Association, attended the October 10th
Campaign for Fiscal Equity (CFE) case’s oral argument before the NYS
Court of Appeals, the State’s highest court. CFE’s attorneys, Joseph
Wayland and Michael Rebell were there to ask the Court to affirm the
court’s earlier decision in favor of CFE and to name the amount
necessary to provide school children with a sound basic education at
least at $4.7 billion. The State’s lawyer, Assistant Attorney General
Denise Hartman, argued the State is moving towards providing the correct
funding amount. Hartman argued the appropriate amount is $1.93 billion
as recommended by, among others, a study authored by Standard and
Poors. The following notes were taken from the hearing:
Justice Judith Kaye:
What relief are you asking for?
Joseph Wayland (CFE):
To confirm the Court’s judgment in CFE Trial II for $4.7 billion in
additional aid to NYC public schools, along with $9.1 billion in
additional building aid and to reinstate accountability provisions
without determining local share.
Justice Kaye:
Where did the $4.7 billion figure come from?
Wayland:
Referees’ panel report recommended $5.63 billion of new aid is needed
for NYC. CFE Trial Court decision also recommended $5.63 billion.
The Appellate Division II decision recommended between $4.7 and 5.63
billion. Governor’s legislation, a Standard and Poors (S&P)
report and the Zarb Commission report all recommended additional aid in
the amount of $4.7 billion. The Regents submitted a recommendation to
the Referees for $4.7 billion in additional aid as well.
Justice Kaye:
Are you making an estoppel arguement?
Wayland:
The lowest S&P number is $1.93 billion.
Justice Robert Smith:
What did the $1.93 billion include?
Michael Rebell (CFE):
Costing out a sound basic education is an art not science. A range is
reasonable. We reject $1.93 billion as an outlier. The Governor’s
position is not the same as the State’s position. In an Assembly letter
to the Referees, $6 billion is recommended to go to NYC. There has been
no instance in NYS where the Governor and Legislature have ignored a
court order. There is no precedent for this. The Kansas Courts had to
threaten contempt but NYS is not there yet.
Justice Kaye:
If NYS is not there, why is the declaratory judgment not sufficient?
Rebell:
We need clarity in Appellate Division decision. After the two years of
the Governor and Legislature spurning the Court of Appeals order,
millions of children wonder why they don’t have benefit of the order.
Also we need the accountability provision of the Trial Court decision
reinstated.
Justice Eugene Pigott:
NYC should be a party.
Rebell:
The Court of Appeals in 1995 said NYC had no standing and threw them
out. We want jurisdiction retained by the Court of Appeals and until
necessary funds are fully appropriated. The State would also monitor
capacity building.
Denise Hartman (AG):
The Governor’s 2004 legislation ($1.93 billion) is a minimum for
providing a sound basic education.
Justice Kaye:
Does $1.93 billion represent the position of the Governor, Assembly and
Senate?
Hartman:
The Executive represents the State and its position has been supported
by reasonable evidence.
Justice Kaye:
The $1.93 billion figure has a 50% cost filter. What is the basis for
this? The Referees rejected it. Is the Referees’ report entitled to
weight?
Hartman:
The Regents and SED use a 50% filter. Some districts spend more than
necessary for a sound basic education.
Justice Kaye:
Are you happy with the 1.93 billion directive?
Hartman:
We are happy with the declaratory judgment that states $1.93 billion
would fund a sound basic education.
Justice Kaye:
What if $1.93 billion is not appropriated?
Hartman:
In theory the order could be ignored. The Judiciary has only moral
authority in enforcing a specific amount of new aid.
Justice Smith:
Does record show how far along NYC is in compliance?
Hartman:
No, but since the 2003 CFE decision, $2.3 billion more in non-building
aid and local spending has been invested.
Justice Kaye:
Are you saying the State is already complying with the $1.93 billion
level?
Hartman:
We are not saying that, but
NYC is coming closer. The Executive and Legislature have not agreed upon
a figure but have appropriated $1.1 billion more over 3 fiscal years.
Justice Pigott:
Are you confident $1.93 billion over 4 years will result in children
succeeding?
Hartman:
It will comply with the definition of a sound basic education.
Justice Albert Rosenblatt:
How should the $1.93 billion be allocated between State/NYC? This is
important in light of other law suits pending.
Hartman:
We are not taking a position in that issue. We should divorce the $1.93
billion result from methodology argued by CFE. The CFE methodology would
result in 500 of 700 districts receiving additional aid under sound
basic education.
REBUTTAL
Wayland:
The Legislature has rejected the methodology which results in a $1.93
billion figure, as did the Regents.
Justice Pigott:
Why is not the 50% filter reasonable?
Wayland:
If Regents used filters then their other weights and regional cost
factors would be necessarily higher. |
