As they return to class this week, most New York City public school students will labor under the same cloud of uncertainty that formed when they entered summer break. Nearly three months after the city council passed a budget that cut funding for the city Department of Education, an ongoing court challenge to restore the money has put the entire city budget at risk of revision. Following a state trial court decision that enjoined the education-related cuts from taking effect, an appellate court stay has allowed the council’s approved budget to remain—for now. But the resolution of Tucker v. City of New York will have important implications for mayoral control of education, the citywide budget process, and the power of the city’s education lobby.

Start with the general state of the city’s public schools. Including $6 billion in expenses for pensions and debt service, the DOE budget totals some $38 billion, roughly equaling the entire state budget of Colorado or Connecticut. New York spends more than twice as much per student as the national average. The cut represents between 0.6 percent to 1.2 percent of the total budget, though some schools will face steeper declines.

Around 919,000 students were enrolled in DOE-operated schools at the end of the last academic year. That represents a drop of 8 percent to 9 percent from the more than 1 million students registered for the 2019–20 year. As Ray Domanico, the Manhattan Institute’s director of education policy, wrote in a recent report, parents have fled the public education system in droves, largely due to a mismatch between their own and education officials’ views of the purpose of an education.

In February, Mayor Eric Adams introduced a preliminary budget that included $375 million in cuts to the DOE, though softened by $160 million in remaining federal pandemic stimulus funds, for a net reduction of some $215 million. The DOE’s budget is a complex mix of local, state, and federal funding; the passed FY 2023 budget actually increases the city’s share of DOE funding by some $700 million, but that isn’t enough to offset the loss of federal dollars. Given this complexity, the precise amount of the cuts remains contested. City comptroller Brad Lander estimated that about a quarter of schools will gain funds, while three-quarters will lose an average of 8 percent, for a net total cut of $372 million. Others put the figure at $469 million.

Adams and DOE chancellor David Banks justified the reduction by pointing to declining student enrollment and the need to steer clear of a fiscal cliff as federal dollars dry up. Months of city council hearings followed the release of the preliminary budget, during which members could have pressed DOE officials about the details of these cuts or negotiated with Adams to pare them back. Nonetheless, in June, two weeks ahead of its deadline, the council passed a more than $100 billion city budget, which contained the cuts, on an overwhelming 44 to six vote.

Soon after, teachers’ unions and parent groups cried foul, claiming that the reductions would cause irreparable harm. Anger grew after individual school budgets were released, showing reduced programming and some teachers to be “excessed,” that is, requiring them to work at another public school with vacancies and available funds. This led to an embarrassing mea culpa from progressive city councilmembers, many of whom apologized for voting to approve a budget they had celebrated just weeks earlier. A July rally in front of City Hall turned into an act of political self-flagellation, as Councilmember Shahana Hanif lamented how “deeply regretful” she was of her vote. Her colleague Lincoln Restler said that he was sorry that he “didn’t step up and fight back.”

Many, including Speaker Adrienne Adams, claim that the Adams administration misled them, and that they didn’t understand the extent of the budget’s impact on certain schools and programs. In mid-July, 41 out of 51 councilmembers signed a letter to Adams and Banks demanding that the DOE restore funding within the month. When that didn’t happen, the council introduced a resolution to undo its own approved budget, which it passed on Tuesday.

But the cuts’ opponents didn’t stop at City Hall. In July, they sued in state court. They asserted that state law required the city’s school board, informally known as the Panel for Educational Policy (PEP), to hold a public hearing, hear public comments, and vote on the estimated DOE budget before the city council passed the citywide budget.

Understanding this Tucker case requires an explanation of the obscure PEP and its role in the city’s public education system. Following Mayor Michael Bloomberg’s successful bid to regain mayoral control of public schools in 2002, the state legislature established the PEP as the renamed and reconfigured successor to the Board of Education, the citywide school board that operated pre-mayoral control. The PEP, consisting of 15 members—most appointed and dismissible by the mayor and borough presidents—holds monthly public meetings and votes on particular items, but it largely lacks independent and substantive authority. Section 2590-g of the state Education Law, which defines the panel’s powers and responsibilities, states that the body “shall advise the chancellor on matters of policy” and “exercise no executive power and perform no executive or administrative functions.”

Accordingly, throughout its 20-year history, the PEP has served as little more than a public sounding board and formal rubber stamp on fiscal and administrative decisions made by the mayor and chancellor. In March 2004, when three members signaled that they would vote against Bloomberg’s proposal not to pass third-graders who did not satisfy academic standards, he dismissed and replaced them hours before the planned vote, in what become known as the “Monday Night Massacre.” But such heavy-handed tactics won’t be available to Adams for long. The recently enacted law to extend mayoral control for two years will expand the PEP to 23 members in January, and it prohibits the mayor and borough presidents from removing appointees for voting against their wishes.

The Education Law mandates that the panel “approve annual estimates of the total sum of money that it deems necessary for the operation of the city district and the capital budget.” Before such approval, it must “undertake a public review process to afford the public an opportunity to submit comments.” This public comment period lasts at least 45 days prior to the PEP vote.

The chancellor also possesses the authority to determine that immediate PEP adoption of the education budget estimate is necessary to preserve “student health, safety, or general welfare.” In that event, the chancellor may declare an emergency that serves as an approved vote on an interim basis for 60 days, or until the PEP votes to approve at its meeting. The law does not specify circumstances under which such a determination must be made; it says only that the chancellor must give written justification for his decision.

These declarations have generally been uncontroversial. In at least 11 of the past 13 years, chancellors issued emergency declarations using nearly identical language to grant provisional PEP approval of the DOE budget estimate. Every year, these documents assert that there is insufficient time to complete the 45-day public comment period before individual school budget allocations proceed. Nobody protested that these declarations were an abuse of the chancellor’s discretion—until now, when the budget is getting cut.

On May 6, the DOE issued its budget estimate, kicking off the comment period that lasted until the PEP’s regularly scheduled meeting and vote on June 23. On May 31, Banks followed established practice and declared the DOE estimate approved on an emergency basis. During the June 23 meeting—10 days after the city council vote—the PEP heard from the public and voted, 10 to four, to approve the estimated budget.

The plaintiffs in Tucker contend that Banks’s emergency declaration was pretextual and illegal. There was no genuine emergency, they argue: the council was weeks ahead of schedule, and the declaration was invoked merely to sidestep the PEP’s public-comment period and vote that should have taken place before the city council passed the citywide budget. They and their supporters (including the New York Civil Liberties Union, which filed an amicus brief) have also taken up the theory that the 45-day public-comment period was vital and necessary for councilmembers to make an informed decision, and thus the emergency declaration shortchanged the city council. By implication, that means councilmembers approved rising budgets on an uninformed basis for more than a decade. But for all the hand-wringing about the public’s right to participate, during the comment period, the PEP received just two public comments, only one pertaining to the budget. In some years past, not a single comment was submitted during the 45-day period.

In an unprecedented early August ruling, a trial court judge agreed with the plaintiffs’ claims, enjoined the council’s approved education-related budget, and restored funding to FY 2022 levels. Judge Lyle Frank’s decision found that Banks’s emergency declaration was not a valid exercise of the chancellor’s authority under Section 2590-g. Because the city charter requires a balanced budget, any increase in DOE funding necessitates cuts elsewhere, thus throwing off the entire city budget.

Adams promptly appealed the decision, and a few days later, a mid-level appellate court temporarily stayed the trial court’s decision, pending a full hearing scheduled for September 29. For the time being, the city can proceed with the budget, as approved. But the uncertainty heading into the school year will detract from the critical task of getting students back on track after two years of pandemic-related disruptions.

No matter the outcome of the case, this controversy bodes poorly for an Adams administration that seeks to retain mayoral control of public schools. The state legislature seems disinclined to renew it in two years’ time. And the city council’s abrupt about-face demonstrates how little consideration went into its vote and how easily manipulable members are by educational interests.

A win for the Tucker plaintiffs could upend mayoral control of education and the entire city budget process. It would throw both the DOE and city budget into disarray and force school administrators to make significant changes in the middle of the year. It would also herald a one-way ratchet for the DOE budget, regardless of enrollment numbers and need. Knowing that protests and lawsuits would follow any hint of a school funding reduction, the mayor and council would likely cut elsewhere. Protesters might even demand that the PEP reject the department estimate and hold out for more money, effectively taking the entire city budget hostage. As the mayor won’t be able to remove panel appointees at-will come January, this raises the prospects for institutional capture by the local education lobby.

If the appellate court holds that the chancellor cannot make declarations absent a specific emergency, this would vest the PEP with more substantive authority than the state legislature probably intended it to have. After all, the public review process does not automatically grant the public or the panel authority to invalidate decisions already adopted by the mayor and chancellor. As Norm Fruchter and Christina Mokhtar at the NYU Steinhardt Center write, the PEP is best envisioned not as a decision-making forum but as a public stage “to ratify decisions that the city school administration has already made. The open public nature of those meetings fulfills state legal requirements but does not enable or support stakeholder participatory policymaking.”

In the end, public participation, emergency declarations, or informed council votes aren’t at issue. Money and power are. As New York’s students return for a new academic year, they may learn something about politics along the way.

Photo by Michael Loccisano/Getty Images


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