This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 75
Miriam Aristy-Farer, et al.,
            Respondents,
        v.
State of New York, et al.,
            Appellants.
---------------------------------
New Yorkers for Students'
Educational Rights ("NYSER"), et
al.,
            Respondents,
        v.
State of New York, et al.,
            Appellants.



           Andrew W. Amend, for appellants.
           Michael A. Rebell, for respondents.




WILSON, J.:
           Since 1894, the New York State Constitution has
mandated that "[t]he legislature shall provide for the
maintenance and support of a system of free common schools,
wherein all the children of this state may be educated" (Art 11,
§ 1).   This Court gave contours to that right in a trilogy known

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                                - 2 -                         No. 75

as the "Campaign for Fiscal Equality" or "CFE" litigation.    In
Campaign for Fiscal Equality v State of New York, we held that
our State Constitution1 "requires the State to offer all children
the opportunity of a sound basic education.    Such an education
should consist of the basic literacy, calculating, and verbal
skills necessary to enable children to eventually function
productively as civic participants capable of voting and serving
on a jury" (86 NY2d 307, 316 [1995] [CFE I]).    The sound basic
education guaranteed by the Constitution requires the State to
afford students with the "opportunity for a meaningful high
school education, one which prepares them to function
productively as civic participants" and "compete for jobs that
enable them to support themselves" (Campaign for Fiscal Equality
v State of New York, 100 NY2d 893, 908, 906 [2003] [CFE II]).
            Our CFE decisions establish that "[t]here is a
constitutional floor with respect to educational adequacy . . .
[and the courts] are responsible for adjudicating the nature of
[the duty to provide a sound basic education]" (CFE I, 86 NY2d at
315).    The Education Article does not guarantee "that all
educational facilities and services would be equal throughout the
state" (Board of Educ., Levittown Union Free School Dist v
Nyquist [Levittown], 57 NY2d 27, 47-48 [1982]).    Instead, it
requires "a State-wide system assuring minimal acceptable


     1
       Any reference to "the Constitution" herein refers to our
New York State Constitution.

                                - 2 -
                               - 3 -                           No. 75

facilities and services" (id. at 47).    "[U]nevenness of
educational opportunity d[oes] not render the school financing
system constitutionally infirm, unless it c[an] be shown that the
system's funding inequities resulted in the deprivation of a
sound basic education" (CFE I, 86 NY2d at 315).    The Education
Article does not guarantee any particular level or amount of
State funding, but rather it guarantees students the opportunity
to achieve a basic level of education.
           The two actions presently before us require us to
determine whether the plaintiffs' claimed violations of the
Education Article have been sufficiently pleaded.    Defendants in
both cases, collectively, are the State of New York, the
Governor, the Board of Regents, and the President of the
University of the State of New York and Commissioner of
Education.   Plaintiffs in the NYSER action are individual parents
of children in a number of school districts, led by New Yorkers
for Students' Educational Rights (NYSER), an educational advocacy
group.   Plaintiffs in the Aristy-Farer action are primarily
parents of New York City schoolchildren who seek to assert claims
on behalf of all similarly situated parents and children.    All
plaintiffs contend that the State has violated the Education
Article by failing to provide students with a sound basic
education.
           Supreme Court denied defendants' CPLR 3211 motions to




                               - 3 -
                                - 4 -                         No. 75

dismiss plaintiffs' respective complaints.2   Upon defendants'
appeal, in one order, the Appellate Division modified both
Supreme Court orders and, as so modified, affirmed (143 AD3d 101,
120 [1st Dept 2016]).   In the NYSER action, the Appellate
Division modified to dismiss plaintiffs' third cause of action
"except insofar as it challenges the adequacy of defendant
State's education funding accountability mechanisms" and
otherwise affirmed (id.).   In the Aristy-Farer action, the
Appellate Division modified to dismiss the second and third
causes of action, leaving only the first cause of action
pending.3   The Appellate Division granted defendants in both
actions leave to appeal to this Court, to answer the certified
question: "was the order of the Supreme Court, as modified by
[the Appellate Division], properly made?"
            We now hold that the NYSER plaintiffs' first and second
causes of action do not survive a motion to dismiss.   With
respect to the third cause of action, defendants challenge it, as
modified by the Appellate Division, only insofar as it concerns
school districts other than New York City and Syracuse.    As a
result, the third cause of action survives as to New York City



     2
       We refer to the "complaints." The operative pleading
document in the NYSER action is their amended complaint; for the
Aristy-Farer action, it is their second amended complaint.
     3
       The Aristy-Farer plaintiffs do not cross-appeal the
Appellate Division's decision, thus, the dismissal of their
second and third causes of action is not before us.

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                               - 5 -                          No. 75

and Syracuse.   The fourth cause of action, generally alleging an
Education Article violation, is sufficiently pleaded as to New
York City and Syracuse only, and also survives defendants' motion
to dismiss.   The Aristy-Farer plaintiffs do not challenge the
Appellate Division's dismissal of their second and third causes
of action, and we conclude that their remaining cause of action
should also be dismissed.
                                I.
           We briefly summarize the CFE litigation to provide
context.   In CFE I, we held that the plaintiffs adequately
pleaded that the State had failed to provide New York City
students with a sound basic education.   We noted that for those
plaintiffs to prove their case, they would "have to establish a
causal link between the present funding system and any proven
failure to provide a sound basic education to New York City
school children" (CFE I, 86 NY2d at 318), and later explained the
proof should include deficient "inputs" and "outputs" (CFE II,
100 NY2d at 908-909).   In CFE II, we upheld the trial court's
finding that the State had failed to fund New York City schools
adequately to provide a sound basic education, and we directed
the State to "ascertain the cost of providing a sound basic
education in New York City" (id. at 930).   In CFE III, we
rejected the lower courts' determinations that the State had
understated the cost of providing a sound basic education in New
York City (see Campaign for Fiscal Equality v State of New York,


                               - 5 -
                                 - 6 -                             No. 75

8 NY3d 14, 30 [2006] [CFE III]).
          Instead, we held that the obligation to determine the
amount and allocation of funds was a peculiarly legislative
function, and the State had proffered sufficient evidence to
justify its estimate as rational.       "Accordingly, we declare[d]
that the constitutionally required funding for the New York City
School District include[d] additional operating funds in the
amount of $1.93 billion" (id. at 31).       In so concluding, we
emphasized our deference to the legislature in areas of education
policymaking, budget, and finance.       Our decision in CFE III
terminated that litigation; no injunctive relief survives that
termination.
                                  II.
          The NYSER plaintiffs allege that, in 2007, following
our CFE III decision, the State adopted various programs to
increase funding not only for New York City schools, as our
mandate required, but statewide.    They allege that the State
accomplished this through the Budget and Reform Act of 2007
(codified at Education Law § 3602), which included a program,
Foundation Aid, that established a new formula for calculating
State aid to school districts.    However, according to the NYSER
complaint, after the 2008 recession, the State froze education
spending levels, and later, reduced them.       Both the NYSER and
Aristy-Farer plaintiffs allege that, in 2010, the State enacted
"Annual Professional Performance Review" (APPR) legislation,


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which required the State to withhold education aid to any
district that did not implement a plan to assess the performance
of teachers and administrators.    The State enacted the APPR
legislation to receive funds under the federal "Race to the Top"
program.    After New York City failed to comply in 2012, the State
withheld funds.   Those allegations form the core of the current
lawsuits.
            Plaintiffs in both actions contend that the State has
violated the Education Article by failing to fund public schools
adequately, but the causes of action differ with regard to the
allegations in support thereof.4   Specifically, the NYSER
complaint contains four causes of action.    First, it alleges that
defendants failed to comply with our CFE decisions by depriving
the New York City school district of the "minimum constitutional
level of funding."   Second, the complaint alleges that students
in school districts throughout the state are being deprived of a
sound basic education due to defendants' failure to implement the
Budget and Reform Act of 2007, and their implementation of
various budget-cutting measures.    Third, the complaint alleges
that defendants violated the Education Article by, among other
things, failing to: identify essential courses of study, develop
cost-efficient policies, undertake cost studies to determine the
cost of a sound basic education, and ensure an adequate

     4
       As discussed above, the Appellate Division modified the
NYSER plaintiffs' third cause of action and dismissed the Aristy-
Farer plaintiffs' second and third causes of action.

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                                - 8 -                          No. 75

accountability system for measuring education performance.
Fourth, and finally, the complaint alleges that defendants have
failed to provide students across the state with a sound basic
education in violation of the Education Article.
            The Aristy-Farer plaintiffs focus on the State's
adoption of the APPR system, and allege that the State withheld
approximately $290 million from the New York City school
district.    They assert three causes of action, alleging that:
first, the State's withholding of the $290 million denied New
York City schools funding necessary for the provision of a sound
basic education; second, the State's failure to induce school
boards and unions to agree to an APPR plan through mechanisms
other than by withholding funds was arbitrary, unreasonable, and
violated their due process rights; and third, the withholding of
funds denied them equal protection.
                                III.
            "In considering the sufficiency of a pleading subject
to a motion to dismiss for failure to state a cause of action
under CPLR 3211(a)(7), our well-settled task is to determine
whether, 'accepting as true the factual statements of the
complaint, plaintiff can succeed upon any reasonable view of the
facts stated" (CFE I, 86 NY2d at 318, quoting People v New York
City Tr. Auth., 59 NY2d 343, 348 [1983]).    Plaintiffs here are
entitled to all favorable inferences that can be drawn from their
pleadings (see id.).    Thus, "[i]f we determine that plaintiffs


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                               - 9 -                           No. 75

are entitled to relief on any reasonable view of the facts
stated, our inquiry is complete and we must declare the complaint
legally sufficient" (id.).
                               IV.
          Before turning to the specific claims in each
complaint, we address the NYSER plaintiffs' contention that they
can allege statewide violations of the Education Article based on
claimed funding deficiencies without including
district-by-district facts in their pleadings.   Our prior
Education Article cases have clearly and consistently stated that
the type of claims brought here must be pleaded with district
specificity to be viable.5   In Levittown, we explained that
absent allegations of "gross and glaring inadequacy," decisions
regarding the allocation of public funds for education fall
within the purview of the legislature, not the courts (57 NY2d at
48-49).
          In Reform Educ. Financing Inequities Today (REFIT) v

     5
       We do not foreclose the possibility that allegations
sufficient to satisfy our CFE "gross educational inadequacies"
test (CFE I, 86 NY2d at 319) could be made on a statewide basis.
For example, if the State were to stop funding education after
elementary school, or would not allow state monies to be spent on
math education, a plaintiff might not need to allege
district-by-district inputs and outputs to challenge such
policies. Here, however, the NYSER plaintiffs do not allege the
existence of any such statewide rule or policy, but instead
contend that, in New York City, Syracuse, and various unspecified
school districts around the state, students are not receiving a
sound basic education. That claim requires fact-specific
district-by-district allegations of the deprivation of a sound
basic education (and later, proof).

                               - 9 -
                               - 10 -                         No. 75

Cuomo, decided the same day as CFE I, we held that because the
plaintiffs did not claim specifically that students in their
district were receiving less than a sound basic education, but
instead attacked the gross inequality of funds available to
school districts around the state, their pleadings could not
survive a motion to dismiss (86 NY2d 279, 285 [1995] ["Giving
plaintiffs' submissions the benefit of every favorable inference,
they simply do not state a claim that these disparities have
caused students in the poorer districts to receive less than a
sound basic education, which is all that they are guaranteed by
our Constitution"]).   Likewise, in Paynter v State of New York,
decided the same day as CFE II, we upheld the dismissal of the
plaintiffs' complaint for failure to state a cause of action
under the Education Article.   Although the plaintiffs
sufficiently pleaded "that by every measure of student
achievement [their] schools do not deliver a sound basic
education," we found their complaint deficient because they had
not "alleged that the substandard academic performance in their
school stem[med] from any lack of funds or inadequacy in the
teaching, facilities, or instrumentalities of learning" (100 NY2d
434, 438-39 [2003]).
          More recently, in New York Civil Liberties Union v
State of New York (NYCLU), we rejected plaintiffs' claims
premised on failures in individual schools, noting the importance
of pleading specific "district-wide" failures caused by


                               - 10 -
                              - 11 -                           No. 75

inadequate state funding (see 4 NY3d 175, 178, 181 [2005]).     In
NYCLU, we held that although the complaint alleged that "the
State of New York does not provide adequate financial resources
to afford all students throughout the state the opportunity for a
sound basic education[,] . . . even construing plaintiffs'
allegations liberally . . . the complaint fails to state a
cognizable claim" (id. at 180).   "Thus, because school districts,
not individual schools, are the local units responsible for
receiving and using state funding, and the State is responsible
for providing sufficient funding to school districts, a claim
under the Education Article requires that a district-wide failure
be pleaded" (id. at 182).
          Here, plaintiffs ask us to find that they have stated a
claim in "another way," because "[d]istrict-based claims of
inadequate inputs and outputs are one, but, as this case shows,
cannot be the only, way to plead an Education Article violation"
(Pl Br at 3).   Although our CFE and other Education Article
decisions do not "delineate the contours of all possible
Education Article claims" (CFE I, 86 NY2d at 441), they evidence
an important underlying proposition.   Because public schools are
funded through a mixture of State and local funds, and because
"the Education Article enshrined in the Constitution a
state-local partnership in which 'people with a community of
interest and a tradition of acting together to govern themselves'
make the 'basic decisions on funding and operating their own


                              - 11 -
                               - 12 -                         No. 75

schools'" (Paynter, 100 NY2d at 442, quoting Levittown, 57 NY2d
at 46), it cannot ordinarily be inferred that deficiencies in
funding or educational services in one school district are
mirrored in another.   Therefore, allegations of deficiencies in
one, several, or many school districts would not ordinarily serve
as sufficient allegations about others.   Our CFE decisions can be
understood as a way to bring a challenge under the Education
Article even if the State's system overall is designed to provide
a sound basic education, but such challenges must be brought on a
school district level.   Plaintiffs must plead some facts as to
each school district they claim falls below the constitutional
minimum.   Here, drawing every inference in favor of the NYSER
plaintiffs, it is not possible to infer that all -- or even most
-- school districts in the state fall below the constitutional
floor, and plaintiffs concede that many school districts are not
deficient.
           The Appellate Division reasoned that the NYSER
plaintiffs properly pleaded a statewide claim because "actionable
deficits identified in one district will require modification of
the formula, necessarily affecting the calculation of funding for
all districts" (143 AD3d 101 at 117).   That observation, while
perhaps true, provides no justification for allowing the NYSER
plaintiffs to proceed with their third and fourth causes of
action on a statewide basis.
           The NYSER plaintiffs also argue that defendants have a


                               - 12 -
                               - 13 -                         No. 75

"self-executing" constitutional obligation to comply with the
Education Article, and that by requiring plaintiffs to plead
facts on a district-by-district basis, we would shift the burden
to prove a violation onto students.     Of course, all members of
the Legislative and Executive branches take an oath to uphold the
constitutions of the United States and New York, and have a duty
to discharge their responsibilities faithfully (see NY Const, art
XIII, § 1).    However, as with every such obligation, if a
plaintiff claims a violation, it is up to that plaintiff to prove
the violation.    Moreover, in the CFE litigation, the plaintiffs
sought a variety of forms of ongoing injunctive relief as part of
the remedy for the constitutional violation.     Although the trial
court ordered, inter alia, that the legislature conduct
costing-out studies every four years and determine the cost of
constitutional compliance on a district-by-district basis
statewide, we affirmed the Appellate Division's vacatur of the
former and rejected the imposition of the latter (see CFE III, 8
NY3d at 32).    Thus, the very "duty" we rejected in CFE III is the
foundation of plaintiffs' argument that they should be excused
from pleading specific deficiencies and causation as to each
district in which they alleged defendants have failed to provide
a sound basic education.
          Plaintiffs contend that requiring proof on a
district-by-district basis could be difficult, if not impossible,
and therefore reason they should be able to prove a statewide


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                               - 14 -                           No. 75

violation by adducing evidence as to some districts of their
choosing.    However, our precedent requires district-specific
pleading for claims of this nature, which plaintiffs here have
set forth for New York City and Syracuse only.
                                  V.
            We now turn to the specific allegations and individual
causes of action in each pleading.
A. The NYSER Complaint
            The NYSER plaintiffs' first cause of action seeks to
hold defendants liable because they allegedly "have failed to
comply with the specific decisions and orders of the Court of
Appeals in CFE I, CFE II, and CFE III."       However, that litigation
is concluded.    Our CFE decisions do not presently impose any
injunctive remedy on defendants.       In CFE II, we directed the
State to ascertain costs and ensure a system of accountability,
struck the lower courts' other remedial orders, and limited our
order to New York City schools.    In CFE III, we repeatedly stated
that the $1.93 billion estimate proffered by the State satisfied
our mandate in CFE II.    We noted that the State was not "limited
to the minimum, or 'floor,' of what it takes to provide a sound
basic education" (CFE III, 8 NY3d at 33 [Rosenblatt, J.,
concurring]).    But we in no way imposed any further funding
requirements on the State.    We recognized in CFE III, and
reiterate here, that "[w]e cannot 'intrude upon the policy-making
and discretionary decisions that are reserved to the legislative


                               - 14 -
                               - 15 -                          No. 75

and executive branches'" (CFE III, 8 NY3d at 28, quoting
Klosterman v Cuomo, 61 NY2d 525, 541 [1984]).    Our deference "is
especially necessary where it is the State's budget plan that is
being questioned" (id.).
          In CFE III, we expressly "reject[ed] as unnecessary"
the Appellate Division's multi-year funding directive (CFE III, 8
NY3d at 27).    Likewise, we did not, as the Appellate Division
mistakenly concluded, direct that the State must increase its
spending annually by a "built-in provision for annual updating
for inflation by reference to a specified inflation index" (143
AD3d at 114).    Thus, the NYSER plaintiffs' second cause of
action, based upon the State's alleged violation for failing to
comply with its own 2007 proposed funding, which exceeded the
$1.93 billion we approved in CFE III, must also be dismissed.
          Although our CFE decisions may well be valuable to the
NYSER plaintiffs in framing their case as they proceed, they
cannot state a claim based on noncompliance with orders arising
from the CFE litigation, because that litigation has ended.     The
NYSER plaintiffs cannot state a claim for violation of the
Education Article by pleading that State funding levels are not
as great as they would have been under methods of calculation
proposed by the State during the CFE litigation, or contemplated
by the Budget and Reform Act of 2007, because those allegations
do not state a constitutional violation, even though those facts
may be relevant to support the NYSER plaintiffs' fourth cause of


                               - 15 -
                              - 16 -                        No. 75

action.6   Furthermore, even if some injunctive provision of the
CFE litigation remained, the parties to that lawsuit -- not this
one -- would need to move for contempt in the original
proceeding.   To sustain a motion for contempt, "a lawful judicial
order expressing an unequivocal mandate must have been in effect
and disobeyed. Moreover, the party to be held in contempt must
have had knowledge of the order . . . [and] prejudice to the
rights of a party to the litigation must be demonstrated" (McCain
v Dinkins, 84 NY2d 216, 226 [1994]).
           As to the NYSER plaintiffs' third cause of action, the
State does not appeal that portion of the Appellate Division's
decision permitting that claim to proceed, as modified, for the
New York City and Syracuse school districts.   Thus, we do not
decide whether the third cause of action, limited to allegations
of a lack of accountability mechanisms, is a proper independent
cause of action.
           In their fourth cause of action, plaintiffs generally

     6
       The dissent evidences a fundamental misunderstanding of
our holding here, treating it as if it bars plaintiffs, in
pursuing their surviving claim, from the use of facts relating to
the prior CFE litigation and its aftermath, e.g., that "the State
failed to carry out its commitment to provide the amount of state
aid that the governor and the legislature had determined to be
necessary," or that the State "abandon[ed] those efforts." Those
facts may well be evidence in this case, but they themselves are
neither a cause of action nor the basis for enforcement of
non-existent injunctive relief. Likewise, neither our decision
today nor the CFE litigation prevents these plaintiffs -- who are
not the CFE plaintiffs -- from obtaining different relief,
including injunctive relief, if warranted based on the proof they
adduce and the findings of the lower courts.

                              - 16 -
                              - 17 -                          No. 75

allege that the State defendants "have failed and are continuing
to fail to provide . . . an opportunity for a sound basic
education in violation of" the Education Article.   As we have
held, "[a]n Education Article claim . . . requires a clear
articulation of the asserted failings of the State, sufficient
for the State to know what it will be expected to do should the
plaintiffs prevail" (NYCLU, 4 NY3d 175 at 180).   The NYSER
plaintiffs have sufficiently alleged deficient inputs and outputs
with respect to New York City and, although in less detail,
Syracuse, that give defendants adequate notice of what a
potential remedy could require of them.   In that regard, the
NYSER complaint alleges deficient inputs (a lack of qualified
teachers and principals, low levels of support staff, outdated
curricula, unsuccessful English as a Second Language programs,
overly large class sizes, lack of basic materials such as
textbooks and chalk, a reduction in after-school and summer
programs, and inadequate and unclean buildings and facilities)
with respect to Syracuse and New York City, with some degree of
specificity.   The complaint further alleges deficient outputs
with respect to those school districts (poor standardized test
proficiency, high failure and drop-out rates, poor English
proficiency, and inability to meet basic requirements to gain
admission to gain admission to City or State colleges because
their high schools do not offer basic course requirements).
          The complaint also alleges a causal link between


                              - 17 -
                             - 18 -                           No. 75

inadequate State funding and the failure of those two school
districts to provide a sound basic education.   Just as the CFE
plaintiffs did, going forward, plaintiffs here will need to
adduce evidence at trial proving, on the basis of current data,
that the State has breached its constitutional obligation to
provide a sound basic education to students in public schools.
Should plaintiffs be successful, it will be up to the State to
craft an appropriate response, subject to judicial review,
because the courts have "neither the authority, nor the ability,
nor the will, to micromanage education financing" (CFE II, 100
NY2d at 925).
          In contrast, aside from New York City and Syracuse, the
complaint alleges merely that other unspecified districts
throughout the State have, on "average," been forced to reduce
instructional expenditures per student and have, as a result,
experienced poor student performance.   The very allegations the
dissent quotes to illustrate the complaint's purported
sufficiency instead highlight its patent failure.   The
allegations that "school districts on average have reduced their
instructional expenditures per pupil by approximately 7%;" that
adequate "reserves" should be "5-10% of a school district's
spending levels," but "in 2012-2013, 28 school districts had less
than 1% of their budget available;" or that "[eighty-seven]
school districts in New York State are currently in conditions of
financial stress," assert financial -- not educational --


                             - 18 -
                             - 19 -                           No. 75

problems (see Levittown, 57 NY2d at 47-48 ["If what is made
available by this system (which is what is to be maintained and
supported) may properly be said to constitute an education, the
constitutional mandate is satisfied"]).   The NYSER allegations do
not allege a causal relationship between the unspecified
educational deficiencies and a lack of State funding, or identify
any specific districts, such that the State might be put on
notice as to the relief sought (see CFE II, 100 NY2d at 928
[declining to order any relief or State action as to districts
other than New York City, because "(th)ere the case presented to
us, and consequently the remedy, was limited to the adequacy of
education financing for the New York City public schools, though
the State may of course address statewide issues if it
chooses"]).
          Further general allegations that "high need school
districts have been unable to comply with many state mandates and
provide their students the opportunity for a sound basic
education at the current funding levels," though at least
alleging an educational deficiency in conclusory terms, do not
indicate what or how many "high-need" districts there are, the
state mandates with which they have been unable to comply, or the
causal link we have required to be pleaded.   Certainly, as the
dissent points out, "the factual allegations for New York City
and Syracuse are more robust than for the remaining districts" --
because the only school districts mentioned in the complaint


                             - 19 -
                                - 20 -                         No. 75

other than those two are Buffalo, Rochester, and Yonkers, which
are mentioned, e.g., because their residents do not "directly pay
school taxes" and receive a subsidy less than the STAR payments
made to other districts, or to point out that Rochester and
Yonkers are not among the 87 school districts determined to be
"in conditions of financial stress" by the Comptroller.
B. The Aristy-Farer Complaint
          The Aristy-Farer plaintiffs argue that the State's
withholding of approximately $290 million in 2012, as a penalty
for New York City's failure to comply with the APPR program,
violated the Education Article.    Their complaint focuses almost
exclusively on that penalty, and contains conclusory statements
alleging that New York City students do not receive a sound basic
education.   Those conclusory allegations are insufficient to
state a claim.   The Aristy-Farer complaint's first cause of
action is not viable because it does not contain any
fact-specific allegations regarding deficient inputs or outputs
in the New York City School District.    The complaint does not
identify any district-specific reduction in teaching or support
staff, depletion of supplies, or inadequate learning facilities.
Further, although the complaint makes a perfunctory reference to
graduation rates and poor testing scores, it does not causally
relate either of those allegations to input deficiencies cause by
insufficient funding.
          The Aristy-Farer complaint focuses on the State's


                                - 20 -
                             - 21 -                           No. 75

withholding of approximately $290 million in 2012 as a penalty
for New York City's failure to comply with the APPR program.     The
Aristy-Farer plaintiffs contend that the State's withholding
violated the Education Article.   However, as noted above, the
Education Article does not mandate a particular dollar amount of
State funding, and the complaint contains no allegation of
causation linking the State's one-time withholding of $290
million and any alleged failure to provide a sound basic
education.
          The Appellate Division held the first cause of action
should proceed, not because it independently contains sufficient
allegations, but because it "contains some of the same
allegations as the much more detailed NYSER Complaint regarding
inputs and outputs . . . [and because the] actions involve the
same nucleus of operative facts, have widely overlapping claims,
and have been consolidated" (143 AD3d at 119-120).   As the
Appellate Division recognized, the Aristy-Farer complaint lacks
the specificity of the NYSER complaint, and its remaining cause
of action, even when read liberally, is too conclusory to survive
a motion to dismiss (see generally Simkin v Blank, 19 NY3d 46, 52
[2012] [allegations consisting of bare legal conclusions are not
entitled to be accepted as true on a motion to dismiss]).
          The Aristy-Farer complaint's first cause of action
lacks sufficient factual "allegations that the State somehow
fails in its obligation to provide minimally acceptable


                             - 21 -
                               - 22 -                          No. 75

educational services [and therefore is] insufficient to state a
cause of action under the Education Article" (Paynter, 100 NY2d
at 441).    "[F]undamentally, an Education Article claim requires
two elements: the deprivation of a sound basic education, and
causes attributable to the State" (NYCLU, 4 NY3d at 178-179).
The Aristy-Farer plaintiffs have failed to satisfy either of
those requirements.    A pleading is not an empty formality, and
the Aristy-Farer plaintiffs chose to file a separate lawsuit with
a separate theory and separate, but highly conclusory,
allegations.    That the NYSER and Aristy-Farer actions were
consolidated on appeal to the Appellate Division does not relieve
either set of plaintiffs of the legal obligation to plead with
specificity, and the Aristy-Farer plaintiffs cannot rely on the
NYSER allegations to support their separate pleading.    Thus, the
order of the Appellate Division permitting the Aristy-Farer
plaintiffs to proceed with their first cause of action should be
reversed.
                                 VI.
                             Conclusion
            The Aristy-Farer plaintiffs have not stated any
cognizable claims, and their complaint should be dismissed in its
entirety. The NYSER plaintiffs' first and second causes of action
should be dismissed; their third cause of action, as modified by
the Appellate Division, and fourth cause of action, should
proceed as they relate to New York City and Syracuse only.


                               - 22 -
                             - 23 -                           No. 75

          Accordingly, the order of the Appellate Division,
insofar as appealed from, should be modified in accordance with
this opinion, without costs, and, as so modified, affirmed, and
the certified question answered in the negative.




                             - 23 -
Aristy-Farer v State of New York; NYSER v State of New York
No. 75




RIVERA, J.(concurring in part, dissenting in part):
          I agree for the reasons stated by the majority that the
Aristy-Farer complaint should be dismissed in its entirety
because it fails to plead a cognizable claim.   However, because
the complaint filed by the New Yorkers for Students' Educational
Rights (NYSER) adequately pleads several causes of actions
against the State for violations of the Education Article as to
all districts, I would affirm the Appellate Division as it
relates to this action.1


                               I.
          The State Constitution's Education Article mandates
that "[t]he legislature shall provide for the maintenance and
support of a system of free common schools, wherein all the



     1
       The Appellate Division dismissed those parts of the third
cause of action that assert substantive due process and equal
protection challenges, because the Annual Professional
Performance Review and penalty provisions "readily pass[] the
appropriate rational basis constitutional scrutiny" (143 AD3d
101, 118 [1st Dept 2016]). The majority allows the remainder of
the third cause of action to proceed as to New York City and
Syracuse because the State does not appeal that part of the
Appellate Division's order (majority op at 16). For the reasons
I discuss, I would also allow this claim to proceed, but with
respect to all school districts in the State.

                              - 1 -
                               - 2 -                        No. 75

children of this state may be educated" (NY Const, art XI, § 1).
This Court has interpreted that language to require "a State-wide
system assuring minimal acceptable facilities and services in
contrast to [an] unsystematized delivery of instruction" (Board
of Educ., Levittown Union Free Sch. Dist. v Nyquist, 57 NY2d 27,
47 [1982]), and "that the opportunity for a sound basic education
be provided to all" (New York Civil Liberties Union v State of
New York, 4 NY3d 175, 178 [2005][NYCLU]).   To the extent the
State's obligation involves financing public education, the Court
has not determined precisely how much money the State must spend
to comply with its constitutional mandate because such a
determination "presents issues of enormous practical and
political complexity" best left to the other branches of
government (Levittown, 57 NY2d at 38-39).   However, the Court has
maintained that "it is the province of the Judicial branch to
define, and safeguard, rights provided by the New York State
Constitution, and order redress for violation of them" (Campaign
for Fiscal Equity, Inc. v State, 100 NY2d 893, 925 [2003] [CFE
II]).
          The Court's decisions in the trilogy of Campaign for
Fiscal Equity (CFE) cases explain the State's financing
obligations under the Education Article and the methods by which
plaintiffs may bring claims challenging the constitutionality of
State financing.   These decisions further provide the context for
the instant appeal.   In the first CFE case, the Court held that a


                               - 2 -
                                - 3 -                         No. 75

group of plaintiffs had pleaded a sustainable claim under the
Education Article and a valid cause of action under federal law
as provided by Title VI's implementing regulations (86 NY2d at
312 [1995] [CFE I]).    The Court concluded that there is a
"constitutional floor with respect to educational adequacy" under
the Education Article, and that the Court is "responsible for
adjudicating the nature of [the State's] duty" (id. at 315).
That "constitutional floor," "requires the State to offer all
children the opportunity of a sound basic education" (id. at
316).   CFE I established that a cause of action under the
Education Article is properly stated where it alleges that
"minimally acceptable educational services and facilities are not
being provided in plaintiffs' school districts" (id. at 316).
The Court further explained that "[a] relevant issue at this
point is whether plaintiffs can establish a correlation between
funding and educational opportunity" (id. at 318).    The
plaintiffs prevailed at trial, but the Appellate Division
reversed.
            On appeal, this Court concluded that the State had
deprived schoolchildren in New York City of a "sound basic
education" (CFE II, 100 NY2d at 918-919).    The Court upheld the
trial court's findings that the "inputs" (teaching, facilities,
and instrumentalities of learning) were insufficient as reflected
by the deficiencies in the "outputs" (test results and both
graduation and dropout rates) (id. at 908).    The Court held that


                                - 3 -
                               - 4 -                         No. 75

"[r]eforms to the current system of financing school funding and
managing schools should address the shortcomings of the current
system by ensuring, as a part of that process, that every school
in New York City would have the resources necessary for providing
the opportunity for a sound basic education" and "the new scheme
should ensure a system of accountability to measure whether the
reforms actually provide the opportunity for a sound basic
education" (id. at 930).   The urgency of the decision is
reflected in the Court's order granting the State nine months to
comply and develop the mandated reforms (id.).2
          In accordance with the directives in CFE II, "Governor
Pataki issued an executive order creating the New York State
Commission on Education Reform, charged with recommending, to the
Executive and the Legislature, education financing and other
reforms" (Campaign for Fiscal Equity, Inc. v State of New York, 8
NY3d 14, 21-22 [2006] [CFE III]).   The Commission calculated
"sound basic education spending estimates for each school
district" and compared that figure to the amount the State had
actually spent, thereby determining "spending gaps" (id.).   In
New York City, the spending gap was $1.93 billion (id. at 24).
Supreme Court convened a Judicial Referee Panel to determine



     2
       Pursuant to the Court's order, the State could, and did,
adopt a statewide measure to ensure compliance with its
constitutional obligations under the Education Article to provide
a sound basic education to every public school student in the
State.

                               - 4 -
                               - 5 -                          No. 75

whether these reforms complied with CFE II (id. at 25).   The
panel modified the Commission's findings, replacing some parts of
its analysis, adopting others, and ultimately determining that
the spending gap in New York City was $5.63 billion, not $1.93
billion as the State had found (id. at 26).
          On appeal in CFE III, this Court held that "Supreme
Court erred by, in effect, commissioning a de novo review of the
compliance question" (id. at 27).   The Court explained that the
role of the courts is not "to determine the best way to calculate
the cost of a sound basic education in New York City schools, but
to determine whether the State's proposed calculation of that
cost is rational" (id.).   The trial court "should have proceeded
to determine whether the state plan[] incorporated that sound
basic education expenditure in its proposed budget and would, if
enacted, ensure a system of accountability" (id. at 29-30).
Holding that the "state budget plan had already reasonably
calculated [the cost of a sound basic education]," the Court
upheld the State's plan and "declare[d] that the constitutionally
required funding for the New York City School District includes
additional operating funds in the amount of $1.93 billion" (id.
at 31).
          Here, the NYSER plaintiffs contend that the State has
not complied with its constitutional obligation under the
Education Article, as clarified by this Court in its CFE cases,
to provide adequate funding to ensure a sound basic education to


                               - 5 -
                               - 6 -                          No. 75

all of New York State's public school children.   Plaintiffs do
not, as the majority argues, contend that "they should be able to
prove a statewide violation by adducing evidence as to some
districts of their choosing" (majority op at 13).   The core of
plaintiffs' argument is that "hundreds of thousands of students
in the City of New York and in other districts throughout the
State of New York are currently being denied the opportunity for
a sound basic education" as a result of the State's failure to
implement the legislative solutions it passed in response to the
holdings in the CFE cases.   This is concededly a novel theory
because, first, it is based on the State's duty to ascertain the
"actual costs" of providing a sound basic education, and, second,
because it alleges that the State's failure has impacted students
throughout the state, not just within one or more named
districts.   A fresh take on the complex and persistent problems
of educational equity and public school underfinancing does not
render the complaint deficient so long as the claims are
adequately pleaded, as they are here.


                                II.
          On a motion to dismiss, "our well-settled task is to
determine whether, 'accepting as true the factual averments of
the complaint, plaintiff can succeed upon any reasonable view of
the facts stated'" (CFE I, 86 NY2d at 318 [internal citations
omitted]).   Plaintiffs have the right "to seek redress, and not


                               - 6 -
                                - 7 -                          No. 75

have the courthouse doors closed at the very inception of an
action, where the pleading meets a minimal standard necessary to
resist dismissal of a complaint" (Armstrong v Simon & Schuster,
Inc., 85 NY2d 373, 379 [1995]).   "Whether a plaintiff can
ultimately establish its allegations is not part of the calculus
in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs
& Co., 5 NY3d 11, 19 [2005]).   So long as, "on any reasonable
view of the facts stated," plaintiffs are entitled to relief,
"our inquiry is complete and we must declare the complaint
legally sufficient" (CFE I, 86 NY2d at 318).
          "Fundamentally, an Education Article claim requires two
elements: the deprivation of a sound basic education, and causes
attributable to the State" (NYCLU, 4 NY3d at 178-179).   Such a
claim "requires a clear articulation of the asserted failings of
the State, sufficient for the State to know what it will be
expected to do should the plaintiffs prevail" (id. at 180).
          In my view, plaintiffs made this threshold showing.     In
the first cause of action, the NYSER plaintiffs allege that the
"State defendants have failed to comply with the specific
decisions and orders of the Court of Appeals in CFE I, CFE II,
and CFE III."   In the second cause of action, they allege that
the "State defendants have failed to provide the individual
plaintiffs and numerous other students in school districts
throughout the State of New York the opportunity for a sound
basic education."   In the third cause of action, plaintiffs


                                - 7 -
                               - 8 -                          No. 75

allege, in part, that the State defendants have violated the
Education Article by failing to "respond appropriately to changes
in fiscal and educational conditions and to maintain a state
system of education in which all of the students receive the
opportunity for a sound basic education."   Lastly, the NYSER
plaintiffs' fourth cause of action alleges that the State has
failed to provide students statewide with an opportunity for a
sound basic education.
          Plaintiffs support these causes of action with: (1) a
detailed account of the State's failure to implement the
statewide plan it had adopted in response to the CFE cases; and
(2) facts concerning the fiscal and educational deficiencies
across school districts.   Admittedly, the factual allegations for
New York City and Syracuse are more robust than for the remaining
districts.   That plaintiffs here allege extra and more specific
deficiencies in certain districts, however, does not preclude
them from claiming that the State has failed to deliver a
constitutionally adequate system statewide.   Furthermore,
plaintiffs still plead facts as to all school districts, which
would entitle them to relief if true.   In addition to the
allegations specific to New York City and Syracuse, plaintiffs
claim that because of extensive reduction in state aid to public
schools, "school districts on average have reduced their
instructional expenditures per pupil by approximately 7%."
Adequate "reserves" should be "5-10% of a school district's


                               - 8 -
                               - 9 -                            No. 75

spending levels," but "in 2012-2013, 28 school districts had less
than 1% of their budget available."    Further, the complaint
alleges that "87 school districts in New York State are currently
in conditions of financial stress" and "[e]ven with major efforts
to eliminate inefficiencies and adopt cost-effective practices,
high need school districts have been unable to comply with many
state mandates and provide their students the opportunity for a
sound basic education at the current funding levels."
          Furthermore, these claims aside, it is enough that
plaintiffs allege that, "[f]ollowing the recession of 2008, the
State failed to carry out its commitment to provide the amount of
state aid that the governor and the legislature had determined to
be necessary to provide all students the opportunity for a sound
basic education."   The NYSER plaintiffs lay out a detailed
history of the CFE litigation and the various legislative
responses that the State has failed to implement.    Affording the
complaint every favorable inference, as we are obliged to do at
this stage of the litigation, plaintiffs' first, second, and
fourth causes of action, and that part of the third challenging
the adequacy of the accountability mechanisms, all sufficiently
plead cognizable claims under the Education Article.
          The majority's characterization of plaintiffs' claims
as overly general and unspecified (majority op at 18) is a
consequence of the majority's application of a heightened
pleading standard, and not any flaw in the complaint.    The


                               - 9 -
                              - 10 -                           No. 75

majority states that the NYSER complaint asserts "financial --
not educational -- problems" (majority op at 18).   Yet, the
complaint alleges that students have been deprived of a sound
basic education and outlines a number of "new mandates" meant to
protect students' education that are unaffordable under current
funding levels.   The majority further contends that the NYSER
complaint does "not allege a causal relationship between the
unspecified educational deficiencies and a lack of State funding,
or identify any specific districts, such that the State might be
put on notice as to the relief sought" (majority op at 18
[emphasis in original]).   However, the complaint expressly
alleges that: (1) the State has failed to provide the state aid
it committed in response to the CFE decisions; and (2) that
"hundreds of thousands of students" have been denied the
opportunity for a sound basic education because of the "extensive
reductions in state aid to public schools."    The clear inference
to be drawn from these allegations is that it is precisely these
State financing failures that are responsible for the educational
deficiencies alleged.   As our cases make clear, at this stage of
the litigation, plaintiffs are to be accorded "the benefit of
every possible favorable inference" (Leon v Martinez, 84 NY2d 83,
87 [1994]) and whether they will succeed on the merits "is not
part of the calculus" (EBC I, 5 NY3d at 19).   We are concerned
only with whether plaintiffs may be afforded relief "on any
reasonable view of the facts stated," and if so, "we must declare


                              - 10 -
                               - 11 -                          No. 75

the complaint legally sufficient" (CFE I, 86 NY2d at 318).     The
majority's reading of the complaint is inconsistent with this
well-established, minimal pleading requirement (Leon, 84 NY2d at
87).   Furthermore, because the complaint states clearly the
proposed remedy -- fulfillment of the State's obligation to:
(1) ascertain the amount required to provide a sound basic
education; (2) pass legislation consistent with that figure; and
then (3) abide by it, as imposed by the CFE decisions -- the
State defendants are on notice as to the relief sought, contrary
to the majority's assertion.
           Although the majority maintains otherwise (majority op
at 9 n 3), its ruling essentially restricts school funding
litigation to district-by-district challenges.   The majority
contends that, "[o]ur prior Education Article cases have clearly
and consistently stated that the type of claims brought here must
be pleaded with district specificity to be viable" (majority op
at 9) and "[o]ur CFE decisions can be understood as a way to
bring a challenge under the Education Article even if the State's
system overall is designed to provide a sound basic education,
but such challenges must be brought on a school district level"
(majority op at 11-12).
           Our case law neither supports this narrow
interpretation of school financing challenges, nor does it
require that we adopt a pleading regime exclusively dependent on
district-specific claims.   In NYCLU, the Court held that the


                               - 11 -
                              - 12 -                          No. 75

complaint failed to state a cause of action because plaintiffs'
"requested relief here bypasses the districts and instead seeks
to mandate that the State provide money or other resources
directly to individual schools" (4 NY3d at 182).    Contrary to the
majority's suggestion, the Court's holding in that case was
therefore not premised on the fact that plaintiffs erroneously
pleaded statewide failures, but instead on the fact that they
erroneously pleaded individual-school failures.    The Court's
holding in REFIT similarly does not shut the courthouse door to
statewide claims (Reform Educ. Fin. Inequities Today [REFIT] v
Cuomo, 86 NY2d 279 [1995]).   In that case, plaintiffs alleged an
Education Article claim on the basis of a "disparity in the
amount of money spent per pupil in property-poor as compared to
property-rich school districts" (86 NY2d at 283).    Having already
held that "[t]he Education Article does not by its express terms
contain an egalitarian component," the Court was bound to
conclude that the complaint failed to state a cause of action
(id. at 284).   Furthermore, the CFE cases, as with NYCLU and
REFIT, "addressed the sufficiency of the pleadings then before us
and had no occasion to delineate the contours of all possible
Education Article claims" (Paynter v State, 100 NY2d 434, 442
[2003]).   Those cases were limited to their facts and do not
expressly prohibit plaintiffs here from bringing claims grounded
in violations having a statewide impact.   Nor do they provide a
basis to limit the way plaintiffs articulate post-CFE school


                              - 12 -
                                - 13 -                          No. 75

financing claims.
             Furthermore, there is no judicial precedent for the
majority's suggestion that the State defendants would only be
bound by the CFE decisions if there had been some injunctive
relief ordered in those cases (majority op at 14).     This argument
is neither relied on by the State nor discussed by the courts
below.     For good reason -- the argument has no application in
this appeal.     As the Court has explained, "it is the province of
the Judicial branch to define, and safeguard, rights provided by
the New York State Constitution" (CFE II, 100 NY2d at 925).       When
the Court makes such a constitutional determination, the State is
bound by it, injunction or not.3    It bears repeating that a
plaintiff may -- as with any party alleging injury -- rely on our
explications of the State's constitutional obligation under the
Education Article when asserting a subsequent violation of the
law.


                                 III.
             School financing cases are difficult, complex, and
require expansive resources (see Michael Heise, Equal Educational
Opportunity Hollow Victories, and the Demise of School Finance



       3
       The State's abandonment of its efforts to comply with the
CFE cases is therefore not solely potential evidence for a future
case, as the majority contends (majority op at 16 n 6), but is
itself a cause of action because it represents a constitutional
violation.

                                - 13 -
                               - 14 -                         No. 75

Equity Theory: An Empirical Perspective and Alternative
Explanation, 32 Ga L Rev 543, 580 [1998] ["the legal
operationalization of [school finance] equity, at least at the
public level involving school resources, has proven notoriously
complex and difficult"]).   The CFE litigation illustrates the
challenges inherent in these cases.     Beginning in 1995, the CFE
cases were litigated for over two decades, with the last of the
CFE cases being decided in 2006.   The actions involved numerous
appeals and remands, and it was not until a year after the final
case was litigated that the state developed its legislative
response.   In the interim, generations of children were denied
the education guaranteed by our State Constitution.    Against the
tide of this Court's prior decisions, the majority's holding
makes it all but impossible to address constitutional violations
other than through burdensome piecemeal litigation.    The result
will be that meritorious claims will go unfiled, due in part to a
lack of litigation resources and the inability of parents and
children to wait decades for a possible victory from which they
will never benefit directly.   Yet, the stakes are high.   At issue
in these cases is the constitutional guarantee to every child in
public school that the education funded by the State provides
them with the basic skills they need to participate meaningfully
in society.   Education is unique because of its importance "in
maintaining our basic institutions, and the lasting impact of its
deprivation on the life of the child" (Plyler v Doe, 457 US 202,


                               - 14 -
                                    - 15 -                           No. 75

221 [1982]).      Education is the great leveler of social and
economic inequalities, and "[i]n America, education is still the
great equalizer" (Arne Duncan, US Secretary of Education, 2011).
             The Court is "responsible for adjudicating the nature"
of the State's constitutional obligations (CFE I, 86 NY2d at
315).   When the Court held in CFE II that the State was required
to "ascertain the actual cost of providing a sound basic
education" (100 NY2d at 930), that mandate was not limited to the
Budget and Reform Act of 2007, it was a constitutional
requirement that survives the CFE litigation.            The State was not
free to attempt compliance and then abandon those efforts.           It is
for the legislature to determine how to comply with CFE, but
compliance is undeniably required.           Insofar as the NYSER
complaint makes specific factual allegations that the State has
failed to comply with the Court's decisions in the CFE cases, and
as a result students have not received a sound basic education,
the claims meet the "minimal standard necessary" to survive the
State's motion to dismiss (Armstrong, 85 NY2d at 379).
*   *    *    *     *   *   *   *     *      *   *   *   *   *   *   *    *
Order, insofar as appealed from, modified in accordance with the
opinion herein, without costs, and, as so modified, affirmed and
certified question answered in the negative. Opinion by Judge
Wilson. Chief Judge DiFiore and Judges Stein, Fahey and Garcia
concur. Judge Rivera concurs in part and dissents in part in an
opinion. Judge Feinman took no part.

Decided June 27, 2017




                                    - 15 -
