school education" (majority opn at 28). But students who receive
a local diploma have successfully completed the twelfth grade.
They simply have not taken Regents exams in their courses.
The indispensable nature of the "outputs" in determining whether
the New York City public school system currently or prospectively
provides the opportunity for a "meaningful high school education"
can not be overstated. Here, the majority definitively specifies
only what the acceptable educational "output" is not. It is
definitely not the RCTs, which are being phased out in favor of
the RLSs, because they are insufficiently ambitious to comport
with modern-day understandings of what a sound basic education
encompasses (and, if measured by the RCTs, the New York City
public school system does not violate the quality standard of the
Education Article). But the majority also balks at adopting the
RLSs, which represent too ambitious a minimum at present for
the ever-evolving constitutional principle at stake. In any event,
the RLSs are not a proper constitutional standard because they
may bend, grow or retreat at the will of a State agency.
The majority's dilemma is easy to appreciate. Recognizing the
judiciary's limitations as an education policymaker, my colleagues
are reluctant to create a detailed quality standard by which to
define the State's obligation under the Education Article. But they
are also unwilling to cede to the Board of Regents and the State
Education Department the power to define (and, in the future,
redefine) what is claimed to be a constitutional principle (albeit a
dynamic one), not an education policy decision. As a result, the
standard that the majority has created -- a "meaningful high
school education" that prepares students "to function productively
as civic participants” -- is illusory. It surely is no more definite
than the template enunciated for a "sound basic education" in
CFE I, unless, of course, the majority, in fact, intends to equate a
"meaningful high school education" with a high school diploma. In
that event, my colleagues have, as a practical matter, adopted
the RLSs and the Regents diploma as defining the constitutional
minimum -- for the present.
Causation
In Levittown, we had "no difficulty in determining that the
constitutional requirement [was] being met" by virtue of the
State's substantial financial contribution to education alone,
which placed New York third among the states in per-pupil
expenditures ( see Levittown, 57 NY2d at 48).[36] New York still
spends more on state aid for education than all but two states in
the nation, although New York has lost its rank as the second
most populous state in the 20 years since Levittown.
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