Litigating for the Right to Education in the United States: Part 1

by | Sep 18, 2017

author profile picture

About Michael Rebell

Michael A. Rebell is a Professor and Executive Director of the Campaign for Educational Equity at Teachers College, Columbia University. He is also an Adjunct Professor at Columbia Law School. Rebell was co-counsel for plaintiffs in the CFE litigation and is currently co-counsel for plaintiffs in NYSER v. State of New York.


Michael A. Rebell, “Litigating for the Right to Education in the United States: Part 1” (OxHRH Blog, 18 September 2017) <> [Date of Access]

Although the U.S. Supreme Court held in 1973 that there is no right to education in the federal constitution, over the past 40 years, dozens of state courts have ruled that there is a right to education under their state constitutions. There has, in fact, been litigation in 45 of the 50 states and plaintiffs have prevailed in about 60 percent of cases. These litigations have constituted the most dynamic constitutional involvement of American state courts in the history of the United States. They have also highlighted the validity of the insight of Louis Brandeis, former Justice of the U.S. Supreme Court, that the federal system allows for a dynamic “laboratory of the states” in which a wide variety of differing legal doctrines and judicial remedies can be explored and implemented. Over this post, and another tomorrow, I will look at some of the experiments taking place in these laboratories.

Currently there are active cases pending in 11 states at all stages of the litigation process: discovery, trial, remedy and compliance. The end of the school year in June resulted in significant developments in five states: New York’s highest court rejected the defendants’ motion to dismiss major compliance litigation, a trial was underway in New Mexico, the state legislatures in Kansas and Washington met court-ordered deadlines for increasing school funding, although in both states, attorneys for the plaintiffs are heading back to court to argue  that the state’s actions do not fully satisfy the court’s requirements, and the parties in a long-pending North Carolina litigation agreed to the appointment of an independent consultant to propose additional steps the state can take to improve education for all children.

New York

At the end of June, the Court of Appeals, New York’s highest court, denied the state’s motion to dismiss the complaint in New Yorkers for Students Educational Rights (NYSER) v. State of New York, but, at the same time, it rejected the plaintiffs’ efforts to litigate the issues raised on a statewide, rather than on a district-by-district basis.

Plaintiffs’ claims, in this case, are based on the Court of Appeals’ three prior rulings in Campaign for Fiscal Equity (CFE) v. State of New Yorkin which the Court held that the state has an obligation to “ensure the availability of a ‘sound basic education’ to all its children.” In 2007, responding to the CFE decisions, the state adopted a needs-based state-wide foundation aid formula that promised to increase funding for education throughout the state by $9 billion per year, but since the 2008 recession, it has failed to fully fund that formula, and has not created any alternative constitutionally-valid funding system. Currently, state funding is almost $4 billion below the amounts called for in the foundation aid formula.

The court’s decision on the motion to dismiss held that plaintiffs had pleaded viable claims regarding the state’s failure to provide a meaningful opportunity for a sound basic education for students in New York City and Syracuse, the two school districts that plaintiffs had discussed in detail for illustrative purposes, and that the case can proceed to trial in regard to those districts. In order to extend any remedy issued in the case to include other school districts in the state, however, plaintiffs would need to present evidence regarding the specific facts in those districts also. Plaintiffs are now considering whether to add facts concerning other school districts to the case. It should also be noted that although the Court’s remedy in the CFE litigation technically applied only to New York City, the legislature, in responding to the Court order there, developed a new, more equitable state education funding system that fully applied to all districts in the state, and not just to New York City.

New Mexico

A lawsuit seeking to compel the state to fulfill its constitutional requirement to provide an adequate public education for all students began in late May in a New Mexico state district court. The trial is expected to last about nine weeks. The case is primarily focused on providing more support for special-education children, English-language learners, and students who are economically disadvantaged in a state that ranks near or at the bottom in most national education reports.

The case was brought in 2014 by two sets of plaintiffs on behalf of groups of students, parents and school districts by the New Mexico Center on Law and Poverty and the Mexican American Legal Defense and Educational Fund. One group of plaintiffs is asking the court to rule that the state is violating the state constitution by not giving students sufficient resources to succeed, but that it should be left up to state leaders to determine how to remedy the situation. The other plaintiffs want the judge to declare that current funding levels are unconstitutional, and to spell out what the state must to do to fix the problem: among other things they are asking the court to mandate higher salaries for teachers, smaller class sizes, more dual-language programs and full-day prekindergarten classes for all eligible students.

I will continue my analysis tomorrow by considering the litigation in Kansas, Washington and North Carolina.

Share this:

Related Content


Submit a Comment