The suggestion in Levittown of a possibly justiciable claim
became a reality in Campaign for Fiscal Equity v State of New
York (86 2 307 [1995][" CFE I"]). Because the case came to us in
the procedural posture of a motion to dismiss, all the complaint's
averments were deemed true ( see CFE I, 86 NY2d at 318). We
did not, however, measure the allegations of gross and glaring
inadequacy against the constitutional standard to determine if the
complaint stated a cause of action under the Education Article. In
fact, we refused to "attempt to definitively specify what the
constitutional concept and mandate of a sound basic education
entails" ( id. at 317). Instead, we crafted a "template" ("the basic
literacy, calculating, and verbal skills necessary to enable
[children] to function as civic participants capable of voting and
serving as jurors") for the trial court to utilize to establish the
meaning of a "sound basic education" after discovery and trial (
id. at 317-318).
Thus was a constitutional standard transformed into the end
product of a trial at which experts aired differing views[31] of
what is required for minimal educational proficiency and
employment success in a competitive urban society. The trial
court would be left with policy choices to make, not factual
contentions to resolve. The trial court would have to fashion "the
constitutional concept and mandate of [what] a sound basic
education entails" on the testimony of competing experts ( id. at
317.[32]
The risks inherent in this novel approach to constitutional
adjudication have now been realized.[33] The trial court modified
the “template” to reflect a “dynamic” understanding of the
constitutional imperative that must “evolve” with the changing
demands of a modern world (187 Misc 2d 1, 16). A sound basic
education was expanded to require an “engaged, capable voter”
who has the “intellectual tools to evaluate complex issues such as
campaign finance reform, tax policy, and global warming” ( id. at
14). Furthermore, the trial court understood our “template” to
encompass the opportunity to obtain “productive employment or
pursue higher education” ( id. at 14- 15). The template was
transmuted from a constitutional minimum into “the aspirational,
largely subjective standards expressed by the lower courts and
the dissent in Levittown, representing what typically one would
desire as the outcome of an entire public education process -- to
produce useful, functioning citizens in a modern society” ( CFE I,
86 NY2d at 329 [Levine, J., concurring]).
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