Hussein v. State

¶1I concur on constraint of Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995] [CFE I]).

¶2This case, like CFE I, is based on allegations that the State is not adequately funding certain of its public schools, and thus is violating the Education Clause of the State Constitution (art XI, § 1: “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”). The Appellate Division, while believing itself bound to uphold the complaint, expressed its doubt that such cases should be in the courts. The Appellate Division said:

“Though we are loathe to enmesh the courts in a subject that primarily involves state fiscal policy and social policy concerns, rather than strictly legal issues, the Court of Appeals decision in Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995]) compels us to affirm. Courts must act with restraint and should avoid interfering with matters that generally fall within the province of the Executive and Legislature, so as to preserve the separation of powers. The Court of Appeals has expressed those concerns, yet determined that it would allow students and parents to sue defendant over school funding—a subject that not only has legal implications, but intimately intertwines them with budgetary issues and public policy choices (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 28; Campaign for Fiscal Equity v State of New York, 100 NY2d at 925; see also Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 34-35 [Kaye, Ch. J., concurring in part and dissenting in part]). Judge Rosenblatt’s concurrence in the latest CFE decision noted that those cases dealt only with school funding in the City of New York, and that a statewide approach to this problem is best left to the Executive and Legislature (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 33 [Rosenblatt, J., concurring]). While we wholeheartedly agree, and believe that those branches of *908government should be dealing with this issue without undue interference—potentially rising to the level of civil actions commenced on behalf of students in every school district across the state—we are constrained to hold that the present action must be permitted to proceed according to the course charted by the Court of Appeals.” (Hussein v State of New York, 81 AD3d 132, 134 [3d Dept 2011].)

¶3Judge Simons expressed similar views 17 years ago in his CFE I dissent:

“It is for other branches of government, not the courts, to define what constitutes a sound basic education and, assuming the State has not defaulted on its duty to establish a State-wide system and provide financial support, to ensure that the opportunity to be educated is available to all.” (86 NY2d at 333.)

¶4I agree with the Appellate Division here, with Judge Simons, and with Judge Read’s dissent in Campaign for Fiscal Equity v State of New York (100 NY2d 893, 950 [2003] [CFE II]), where she pointed out “[t]he risks inherent in” CFE F s “novel approach to constitutional adjudication.” But CFE I decided that lawsuits like this one can be brought.

¶5If CFE I is accepted as good law, the State’s arguments for dismissing this complaint cannot succeed. Indeed, those arguments seem to me very weak. The State’s brief contains two points, the first saying that in light of recent legislation relating to school funding it would be “imprudent” for the courts to entertain the case, and the second saying the case is barred by “traditional principles of mootness and ripeness.” I know of no warrant for rejecting a claim to vindicate a recognized constitutional right on the ground of imprudence. And the case is obviously neither moot nor unripe. A moot case is one in which nothing turns on the result—but if plaintiffs prevail here, large sums of taxpayer money would be directed to the public schools of their districts. And if plaintiffs, the parents of children in those public schools, are constitutionally entitled to have this money spent on their children’s educations, they are entitled to it now. They would be rightly dismayed to learn that their claims will not ripen for several years, until after their children have graduated.

¶6I can only understand the State’s arguments here as implicitly inviting us to abandon CFE I. Despite the views I have *909expressed, I do not believe we should now accept the invitation. The worst fears of Judges Simons and Read, as expressed in their CFE I and CFE II dissents, have not yet come true, and perhaps never will. In CFE III (Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14 [2006]), we adhered to CFE I and CFE II, but made clear that in applying those precedents we will show great deference to executive and legislative choices as to how much money to put into public schools, and how to allocate that money. A similar trend has appeared in some other states in which school funding issues have been constitutionalized: those states have not repudiated their earlier decisions, but have interpreted them to leave broad scope for choices made by the executive and legislative branches (see Hancock v Commissioner of Educ., 443 Mass 428, 822 NE2d 1134 [2005]; Montoy v State, 282 Kan 9, 138 P3d 755 [2006]; Londonderry School Dist. SAU #12 v State, 157 NH 734, 958 A2d 930 [2008]).

¶7Thus it is not clear to me that we cannot live with the CFE I decision. I must add that it is also not clear to me that we can. I take heart, however, from the fact that we have so far not set out upon a road like that traveled by New Jersey, where school funding litigation is now in its fifth decade (see Robinson v Cahill, 118 NJ Super 223, 287 A2d 187 [Law Div 1972], mod 62 NJ 473, 303 A2d 273 [1973]; Education Law Ctr. ex rel. Abbott v Burke School Children v New Jersey Dept. of Educ., 2012 WL 1080867, 2012 NJ Super Unpub LEXIS 732 [App Div Apr. 3, 2012]).

¶8Granted, this appeal may not be conventionally moot or unripe. But then, plaintiffs’ claims are not justiciable in the orthodox sense either (see Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 48 [1982] [indicating the constitutional standard would be unmet only in the case “possibly, of gross and glaring inadequacy,” which cannot be said to exist in New York where “the average per pupil expenditure exceeds that in all other States but two”];1Campaign for Fiscal Equity v State of New York, 86 NY2d 307, *910341-342 [1995, Simons, J., dissenting] [interpreting Levittown to hold that “(t)he courts . . . were not to interfere in constitutional responsibilities assigned to other branches of government unless the executive and legislative branches had, in effect, defaulted on their duty to establish a State-wide system of education and fund it”] [CFE I]). This is why adequacy litigation is so difficult to deal with once the judiciary slips the traces of justiciability and lets these lawsuits go forward—as we did in CFE I and Campaign for Fiscal Equity v State of New York (100 NY2d 893 [2003] [CFE 77])—despite the serious separation-of-powers issues they pose.2

¶9The adequacy litigation in New York differed from that in most states, as the CFE plaintiffs challenged only the level of state funding of the New York City School District, not the adequacy of education funding on a statewide basis. Nonetheless, the Governor proposed and the Legislature adopted a statewide plan—chapter 57 of the Laws of 2007—in response to the CFE litigation and, in particular, our decision in Campaign for Fiscal Equity, Inc. v State of New York (8 NY3d 14 [2006] [CFE 777]). Indeed, as the Attorney General points out, the Legislature in chapter 57 essentially adopted the Zarb Commission’s methodology and conclusions—which we endorsed as reasonable in CFE III—to create the formula to determine each district’s share of state school aid, and then significantly increased the amount of recommended funding.

¶10In other states where, as in New York, substantial statewide education reforms have been put in place in response to judicial determinations of inadequacy, courts have declined to endorse follow-on adequacy challenges (see e.g. Hancock v Commissioner *911of Educ., 443 Mass 428, 822 NE2d 1134 [2005 plurality]; Londonderry School Dist. SAU #12 v State, 157 NH 734, 958 A2d 930 [2008]; Montoy v State, 282 Kan 9, 138 P3d 755 [2006]; see also Dayton, Dupre and Houck, Brother, Can You Spare a Dime? Contemplating the Future of School Funding Litigation in Tough Economic Times, 258 Educ L Rep 937 [Sept. 30, 2010] [summarizing the trend in recent adequacy cases toward deference to legislators, who are constitutionally required to balance state budgets annually]). Underlying these decisions is a forbearance seemingly born of heightened separation-of-powers sensitivities where the political branches have engaged in good-faith education reforms, given that the constitutional standards in this area are ambiguous, the solutions are subjective and the results are uncertain. Other state courts in recent years have dismissed new adequacy claims outright, expressing reluctance to risk entanglement with the prerogatives of the elected branches (see Bonner v Daniels, 907 NE2d 516, 522 [Ind 2009]; Oklahoma Educ. Assn. v State ex rel. Oklahoma Legislature, 158 P3d 1058, 1066 [Okla 2007]; Nebraska Coalition for Educ. Equity & Adequacy [Coalition] v Heineman, 273 Neb 531, 557, 731 NW2d 164, 183 [2007]).

¶11The Attorney General asks us to dismiss plaintiffs’ complaint, but does not suggest that we overrule the CFE line of cases. Rather, he asks us to emulate sister state courts by, in effect, reverting to Levittown’s more modest conception of justiciability in light of the passage of chapter 57, which signaled the political branches’ serious engagement with issues of education funding, costs and reform. In fact, after this case was argued Governor Cuomo announced formation of a blue-ribbon commission with a wide-ranging charter to examine the State’s K-12 education system, specifically including the problems facing high-need urban school districts (see Executive Order [Cuomo] No. 44 [9 NYCRR 8.44] [dated Apr. 13, 2012]).

¶12I would accept the Attorney General’s invitation and dismiss the complaint. Plaintiffs seek increased state funding on the theory that more money necessarily equals better student outcomes. They criticize the education aid formula prior to 2007, as it was applied to their small city school districts, but most of their ire is directed at chapter 57. In their view, the 2007 reforms assigned too humble a piece of New York’s school aid pie to their districts. Thus, this lawsuit, as is invariably the case in adequacy litigation, implicates a host of public policy questions. First and foremost, what exactly needs to be done to *912improve schools and student performance—especially, to close the achievement gap—and what is the price tag for these necessary measures, once settled upon? Given the extensive and continuing debate prompted by the publication of A Nation at Risk nearly 30 years ago,3 the answers to these fundamental questions remain elusive. Additional, equally subjective and policy-laden fiscal questions inhere in this lawsuit. Just for starters, what size budget do the State’s revenues support in a particular year? how much of this revenue should the Legislature appropriate to support public education, as opposed to Medicaid or public assistance or other government programs and operations? how much should the public be taxed to support public education? how should the financial burden be shared by localities and the State?

¶13The “stubborn thing[ ]”4 at the heart of this case is that the way in which these public policy questions are resolved by the Governor and the Legislature will dictate how much school aid plaintiffs’ districts receive year to year in the future. We do plaintiffs no favor by keeping alive the illusion they can successfully end-run this fact via the courts.

¶14Accordingly, I respectfully dissent.

¶15Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur in memorandum; Judge Ciparick concurs in a separate opinion; Judge Smith concurs in a separate opinion in which Judge Pigott concurs; Judge Read dissents in another opinion.

¶16Order affirmed, etc.