Written in the age of the horse and buggy in 1894, the education provision in the New York Constitution is badly outdated.

It took nearly ninety years, in the 1982 court decision in Board of Education, Levittown Union Free School District v Nyquist , for the courts to establish the state’s responsibility for providing a “sound basic education” for every student.

However, the court did not define what a “sound, basic education” meant. Even worse, the Levittown decision also declared that, constitutionally, massive inequality in our schools is acceptable.  Judge Hugh R. Jones, who wrote the decision, stated that, “recognizing the existence of the very real disparities of financial support as found by the lower courts, we nonetheless conclude that such disparities do not establish that there has been a violation of either Federal or State Constitution.”

Judge Jones argued that, as of 1982, the state was meeting its duty to deliver funding sufficient for a sound, basic education.  Yet in the future, should a “gross and glaring inadequacy” in state funding be demonstrated, Jones argued that the courts could mandate a “higher priority” for education.

Rather than attack the root of the problem and seek constitutional change, activists have sought to truly define a “sound, basic education.” This came to a head in the 2003 case Campaign for Fiscal Equity (CFE) v. State of New York. Under then-governor George Pataki’s leadership, the State claimed it was only obligated to provide New Yorkers an eighth grade education.  The New York Court of Appeals, however, ruled that the state must provide:

The opportunity for a meaningful high school education, one which prepares them to function productively as civic participants.

In this instance, the court found that the state violated the Constitution by failing to provide New York City public schools adequate resources to deliver a sound, basic education.  However, it did not overturn  Levittown and argue the state is obliged to provide students in these failing schools the same level of funding for education they would receive elsewhere.  In addition, “a meaningful high school education,” although not much more specific than a “sound, basic education,” might have been acceptable to prepare New Yorkers for life in the 20th century, but it’s highly problematic in the 21st century. Without a college degree, and/or technical education and continuing adult education, it’s increasingly difficult to go beyond a minimum wage.  Even worse, the CFE decision only addressed New York City.

Following CFE, in 2007, the state legislature enacted reforms to the state aid system that promised students, not only in New York City, but throughout the state, billions of dollars in increased funding and a more equitable distribution of state aid. Since the recession of 2008, however, the state has not lived up to these commitments. There is a current case being litigated, NYSER v. State of New York, which is the follow up of the CFE decision to cover the entire state.

Where New York Education is now: Unequal and Underfunded

New York State will invest nearly $24.8 billion for statewide education during FY 2016, placing it third nationally, behind only California and Texas.  Yet according to the national education policy group The Education Trust, New York State ranks Number 2 in the nation in educational inequality.   Inequality in educational facilities has only grown over time.  According to The Alliance for Quality Education (AQE) and the Public Policy and Education Fund (PPEF):

The gap between New York State’s 100 wealthiest school districts and the 100 poorest school districts has widened to $9,796 per pupil—a record setting level.

Also from the AQE:

New York State has a child poverty crisis with one in two children living in poverty…. Wealthy school districts have a 92 percent graduation rate while poorer schools average a 66 percent graduation rate. Research from the National Bureau of Economic Research, the nation’s leading nonprofit economic research organization, shows that a sustained 10% increase in funding results in an 11% increase in graduation rates.

The gap also strips schools of programs and opportunities. Half of the graduating cohorts in well-funded schools leave high school with a coveted Advanced Regents diploma while only 1 in 5 students in poor school districts graduated with an Advanced Regents diploma.

Why is school funding distributed unequally?

New York’s schools receive funding from the federal government, the state government, and local governments.  The funding provided by local government is significant.  In the 2013-14 school year, for instance, local communities spend over 54% of the state total for education.

From “The Education Dollar: A Look at Spending And Funding Trends,” New York State Association of School Business Officials, September, 2015.

“STAR” stands for the state’s School Tax Relief program.

Yet forcing schools to depend disproportionally on revenue from local taxes, primarily property taxes, guarantees inequality between wealthy and poor school districts.  Even before the economic crisis, poorer districts saw their tax base shrinking, with fewer dollars going to support essential school programs.

Additionally, in 2011, a law was passed limiting the amount local governments could increase property tax revenue in a year to just 2 percent, further restricting the ability of schools to raise extra revenue.

This cap, signed into law by Governor Cuomo, is by definition discriminatory, entrenching the education disparity between rich and poor districts.  With property values in poor districts just a fraction of values in wealthier neighborhoods, the poor districts have no way to keep up.

Unfortunately, state funding is insufficient to address the education disparity in New York’s schools, a disparity worsened by the harmful property tax cap.  The graph below displays a slow rise in the percentage of local property taxes making up for lower funding from the state and federal government:

From ANALYSIS OF SCHOOL FINANCES IN NEW YORK STATE SCHOOL DISTRICTS 2013-14, The University of the State of New York

In 2001-2, State funding was 48.5% of education funding per student, dipping to a low of 39.7 in the 2011-12 school year.  Even for the 2014-15 school year, state aid made up only 41.8% of school revenues, so state funding is still way behind where it was at the beginning of the century.  Meanwhile, local funding has gone up from 46.4% of state education spending in to 55.0% over the same period.  So school districts around the state are depending more and more on property taxes to pay for education, which leads to greater and greater disparities in funding between districts.

“Poor school districts are being forced to cut electives, remedial tutoring, foreign languages and other programs and services to balance budgets. Many schools in less prosperous areas face what the state commissioner of education calls “educational insolvency.”

 “A new statewide cap on how high local revenues can be raised is further exacerbating educational inequities. The cap limits property tax hikes to 2 percent, which may sound fair but actually contributes to school inequality: the permitted tax increase raises a lot more revenue from million-dollar homes for wealthy schools than it raises on $100,000 homes for poorer schools.”

 –-Billy Easton“Albany’s Unkindest Cut of All” (May 25, 2012)

Education funding in the state is expected to get even tighter:

“Revenue growth from state and local sources will be limited for school districts in 2017 as the cap on property taxes and tax collections overall will take their toll, Comptroller Tom DiNapoli warned in an interview published Monday.

DiNapoli, speaking to the New York State School Boards Association, warned budget gaps over the next several years are possible, which he attributed to an increase in spending and declining tax revenue.

“We may have to be perhaps a little more conservative in our assumptions as we move forward,” DiNapoli told Kremer. “State budget gaps could be as high as $5 billion per year over three years due to increased state spending, decreased tax collections, and depletion of reserve funds.”

High-Stakes Testing

New York’s approach to high-stakes testing is totally wrong.  The state needs diagnostic testing that empowers teachers rather than serves as an inaccurate and unscientific critique of them.  This is a constitutional issue because this principle needs to be embedded in how the state approaches education.

The high-stakes tests include evaluations mandated by the federal No Child Left Behind Act.  The purpose of these tests is to measure the success of the system, not to help individual students.   As the New York City Department of Education states, “New York City and New York State use test results to evaluate how well schools are serving students.”

This is why the tests are taken towards the end of the school year in March, too late to inform much student instruction, but too early to provide a summative evaluation of the students.  Rather, the data is presumably a measure of how well the teachers, the principals, and the school system itself are doing.

However, as Professor Anne K. Soderman of Michigan State University has written, “That more rigorous testing is an answer for the ills that face America’s schools is unreasonable and flawed thinking. [Howard] Gardner (2001) compares this with taking the temperature of a sick person repeatedly in order to improve their health.”

The success or failure on state tests is more a measure of the students’ economic class than the performance of the school:

Common sense and a closer look at differences in communities should tell us that school failure, as measured by these tests, has more to do with failing families and failing communities than the schools that the children attend. There is no documented evidence that teachers in failing schools are any less effective, less well trained or less motivated to help children learn than teachers in more successful schools. What is true is that educators in many of our low performing schools are dealing with an entirely different set of challenges. In failing schools, there is far more absenteeism, tardiness, problem behavior, poverty, family transitions and, noticeably, less parent participation.

So the tests don’t help the individual students because it doesn’t inform their teaching, nor are the tests a valid way of measuring the quality of teaching or administration in poor districts.

But testing is even more problematic than that.  Students in big cities are spending twenty to twenty-five hours a year taking standardized tests – and that doesn’t include all the time the schools spend preparing the students for the tests.  This is known as “teaching to the tests,” and it’s widespread and pernicious.

Standardized, high-stakes testing has had a profound impact on everyone involved in education. In fact, in a recent survey, nearly half of all teachers have considered leaving the profession because of standardized testing. It’s therefore no wonder,  that twenty percent of children have been withdrawn by their parents from standardized testing in New York these last few years.

There is a better way.

In New York State, for K-12, all formerly “high stakes” testing must be diagnostic and prescriptive.  The purpose of the tests would be to inform the teacher of the progress and the deficiencies of each individual student.  This information would therefore be actionable, so each student can receive the support he or she needs from the teacher or other resources to achieve and surpass grade level.  The tests would also be earlier in the year, so the teacher would have time to implement individualized learning plans for each student.  The tests would not be used to measure teacher, school or district performance.  Rather, the tests would focus solely on the needs and development of each student.