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Two Finance Cases Spur N.Y. Court To Consider How To Measure Equity

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In 1982, New York State's highest court closed the door on a constitutional challenge to the state's system of paying for schools.

Now, 13 years later, that same court is deciding whether to kick open that door.

The high court, known as the court of appeals, earlier this year held separate hearings on motions by the state to dismiss two school-finance lawsuits. The seven-judge court shuffled its docket to hear the cases just six weeks apart, and court watchers interpreted this move as a sign that the judges want to deliver a strong message on school funding.

The plaintiffs in the two cases--one from New York City, the other from Long Island--seek the same goal: a new, equitable school-aid formula. But they differ on whether funding is the measure by which the court should judge equity.

As a result, the court's decisions--which are expected shortly--may have much to do with school quality and performance and little to do with money.

Blue Collar, Upper Crust

The case argued in 1982 was solely about money, those familiar with it say. The plaintiffs--more than two dozen school districts, mostly neighbors of the Levittown district on Long Island--filed the lawsuit in 1974, arguing that the state's reliance on property taxes for school funding divided districts into haves and have-nots.

In arguments before the court, lawyers for Levittown pointed to the great disparities in wealth between Long Island's blue-collar, middle-class communities and its tony, summer-resort neighbors.

Three lower courts sided with the plaintiffs, but the court of appeals agreed with the state's argument that the plaintiffs had offered no proof that students in any district were not receiving a "sound basic education" as mandated by the state constitution.

The high court said it would only override legislative decisions if the evidence demonstrated a "gross and glaring inadequacy" in education.

Seeking an Opening

The plaintiffs in the new lawsuits have built their cases around those words from the 13-year-old decision.

"We're all picking up a few phrases that leave an opening for further court action," said Michael A. Rebell, the executive director of the Campaign for Fiscal Equity, a group acting as the plaintiff for various city school boards and advocacy and parent groups.

On Jan. 3, observers in the court of appeals experienced a bit of d‚j… vu when the lawyer for the 1982 plaintiffs, Daniel P. Levitt, again stood before the court challenging the constitutionality of the school-finance system. This time, some 40 districts--again, mostly from Long Island--argued that the widening gap between rich and poor districts was proof of the "gross and glaring" inadequacies that the court had said it needed to see before it would act.

Between 1980 and 1990, the plaintiffs argue in a brief, disparities in wealth between school districts widened further. In Suffolk County, for example, the poorest district has only one-seventy-fifth the property wealth of the richest.

"As the old saying goes, 'The rich get richer, and the poor get poorer,"' said Anthony F. Felicio, the president of Reform Education Financing Inequities Today, the umbrella group for the plaintiff districts.

As it did in 1982, the state countered by arguing that inequities do not automatically equal inadequacy. In an interview last week, Daniel Smirlock, the assistant attorney general arguing the case, said, "They failed to make allegations that the level of education was inadequate."

Falling Short

Meanwhile, the lawsuit filed by the New York City plaintiff took a much different tack.

Equity was certainly a part of the arguments that the Campaign for Fiscal Equity made in briefs and the hearings before the high court on Feb. 16. Although the city serves 37 percent of the state's student enrollment, it receives less than 35 percent of state school aid.

But the heart of the C.F.E. case is that city schools are not providing the "sound basic education" mandated by the 1982 decision.

Arguing that achievement by the city's students is much lower than standards devised by the state board of regents since then, the C.F.E. aimed to prove that the city's schools deliver an inadequate education. Unlike the plaintiffs in the Levittown case, Mr. Rebell said, the C.F.E. is making its case by pointing to poor student achievement, not the lack of funding.

In briefs and arguments before the court, the state argues that the Campaign for Fiscal Equity failed to prove that schools are much worse today than they were in 1982, which is the court's test for reopening the issue.

Mark G. Peters, the assistant attorney general arguing the case, said in an interview that the C.F.E. has brought no new problems to light. "There's nothing in their complaint to suggest that things have gotten worse," he said.

Most observers said the Long Island plaintiffs have a tougher case to make. Proving that wealth disparities matter in a state that spends an average of $8,600 per pupil--$3,400 more than the national average--is not easy.

"If you look at the lower-spending districts in New York compared to national averages, they don't look all that bad," said David Monk, a school-finance expert at Cornell University.

The C.F.E. argument about adequacy, however, could persuade the high court to move to a full trial on the funding system.

The issue is "not just about dollars," said Robert Berne, the dean of the school of public service at New York University. "The court has to ask: Is public education in the state of New York headed in the right direction?"

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