There's a simple reason why George Pataki hasn't obeyed Supreme Court Justice's Leland DeGrasse's order for the state to increase spending on New York City's public school children by billions of dollars. The governor doesn't have to.
Beneath the surface of this tortuous case is a legal reality that is becoming more apparent the longer the appeals process drags onward. It explains why Mr. Pataki is able to claim that he's complying with Judge DeGrasse's order when he's flouting it. It explains why the speaker of the Assembly, Sheldon Silver, a Democrat, speaks of the judgment handed down in the case as a "moral obligation," as opposed to a "legal" one. It explains why the court has yet to issue an injunction against the legislature to force it to adopt a new funding system that it declared due almost two years ago.
The plaintiffs in Campaign for Fiscal Equity, Inc. v State of New York are at a legal dead end. The governor and state legislature may ultimately pump enough money into New York City's public education system to satisfy the courts and the coalition of advocacy groups and school boards that make up the Campaign for Fiscal Equity. But any decision to appropriate the money will have been driven by political, not legal, necessity. While the Court of Appeals can declare the state's school funding system to be unconstitutional and demand that the state adopt a different school financing system that gives New York City more money, it is powerless to enforce its own ruling and sanction the state and the governor as punishment for the delay.
It's possible that the Campaign for Fiscal Equity may call on the Court of Appeals or one of the lower courts to sanction the state government or Mr. Pataki. As pointed out by David Schoenbrod, a senior fellow at the Cato Institute and a law professor at New York Law School, the courts cannot sanction the state because New York like any other state is immune to lawsuits to which it does not consent. The governor himself cannot be sanctioned because, as Mr. Schoenbrod has argued, he cannot spend money that the legislature hasn't appropriated. The legislature, which is not a party to the case, can't be sanctioned either because of its own legislative immunity. "The upshot is the court has no real power over the ultimate decision-maker," Mr. Schoenbrod told The New York Sun.
When the plaintiffs talk about enforcement, they point to New Jersey's school financing battle in the 1970s that revolved around the constitutionality of a funding system that depended on property taxes. The courts found disparities in the quality of education that they felt discriminated against students in low-income districts and ordered the New Jersey Legislature to approve a new, more equal system. A year and a half after the court's imposed deadline passed, the New Jersey Supreme Court in July 1976 shut down the entire school system, bringing summer school classes to a halt. After nine days, the Legislature consented to a new formula that used income tax revenue to offset the differences so that per pupil spending in the poorest districts equaled spending in the richest.
The New York case is different. The courts here have declared the state's public school funding system to be unconstitutional because they have ruled that New York City students aren't being offered a "sound basic" education. New York's Court of Appeals, as Mr. Schoenbrod notes, would be denying every student such an education if it followed New Jersey's example and shut down the whole system. And, of course, it's unlikely that the Campaign for Fiscal Equity would even consider asking the courts to take such a destructive action or that the courts would consider such an injunction.
It wouldn't be surprising, however, to see the Campaign for Fiscal Equity appeal the appellate division's ruling of last week that directed that New York City be given new operating aid ranging between $4.7 billion and $5.63 billion. Appealing the case is the best way the plaintiffs can keep the issue in the public eye. Meanwhile I asked the Campaign for Fiscal Equity's lead attorney, Michael Rebell, about whether he thought the governor was stonewalling because he thinks he can get away with it. "I understand that's what's going on. It's a sad state of events," he said. "That's not the way the rule of law should work. What kind of example is this for schoolchildren in the state?"
Actually, it might be a good example. If the governor and the legislature have the immunities that even Mr. Rebell seem to think they have, the bad example would be failing to protect them. The immunities, after all, are part of a system of separated powers that is American bedrock. But neither does that mean that all is lost for CFE. For the judgments it has won carry political weight. It's poor publicity for the governor to be accused by the state's highest court of violating the constitution. The case has drawn attention to the state's crude statewide funding formula and the poor performance of New York City's school children, relative to students in other parts of the state, and thrown into sharp relief the fact that the governor and the legislature alone are to blame.