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Campaign for Fiscal Equity

In Brief to Court, State Lawyers Make Last-Ditch, Desperate Effort

Lawyers for the State of New York submitted their briefs to the court on January 3, urging Justice DeGrasse to issue a declaratory judgment, and not a mandatory court order, to resolve the issue of how much money is needed to bring the state's funding system into constitutional compliance. The State's lawyers argued that it would be "antithetical to the notion of separation of powers" for the court to order the legislature to enact legislation and budget a specified amount for education. While the State called the special masters' recommended $5.6 billion increase in operating aid and $9.2 billion for facilities too high, it did not offer its own specific recommendation for how to address the funding shortfall.

Anticipating the separation of powers argument, the special masters in their November 30 final report and recommendations explicitly addressed this issue. "The policy decision-that every child is entitled to a sound basic education, and that the State must 'provide . . . the maintenance and support' necessary to satisfy [this] standard-has already been mandated by the New York Constitution. In providing a remedy that enforces that mandate, the Court would not be overstepping its bounds; to the contrary, it would be engaging in the most quintessential of judicial functions-protecting the constitutional rights of the citizenry," the panel wrote.

"To argue separation of powers again at this stage of the proceedings is a desperate measure on the part of the State," said CFE Executive Director and Counsel Michael A. Rebell. "The bottom line is that the court would not need to issue a mandatory order if the State had enacted appropriate reforms last July, in accordance with the Court of Appeals' decision."

The State further opposed plaintiffs' request that the State be held in contempt and sanctioned with a $4.2 million dollar fine (after a 90-day grace period) for each day that the State continues to defy the constitution. In its brief opposing plaintiffs' motion for contempt, the State's lawyers said that the State cannot be held in contempt without a specific court order to the legislature ordering it to appropriate money. This position appears to be starkly inconsistent with the state's position in its brief to the special referees, in which it acknowledged that there was a court order and that the court "directed" them to make the mandated reforms.

Plaintiffs will submit their reply paper on January 7. Justice Leland DeGrasse will hear oral argument from both parties on January 12 at 10:00 a.m. Plaintiffs will ask him to issue an order based on the panel's recommendations shortly thereafter.

January 4 , 2005

Parents from across the state march on the Capitol in Albany to show support for CFE.
CFE Litigation CFE v. State of New York
In 2006, after 13 years in the Courts, the New York State Court of Appeals affirmed the right of every public school student in New York to the opportunity for a sound basic education and the state’s responsibility to adequately fund this right, but deferred to the Governor and the Legislature to determine the appropriate amount. more >