Oral argument on the appeal of the trial court ruling in Maisto v State of New York will be heard by the Appellate Division, Third Department, on September 5, at 1 p.m., at the Robert Abrams Building for Law and Justice, Room 511, Albany, New York.

In this appeal, parents and students in eight small city school districts are asking the Appellate Court to overturn a September 2016 ruling by Acting Albany Supreme Court Judge Kimberly O’Connor. The ruling, following a two-month trial in early 2015, ignored the overwhelming evidence presented by plaintiffs that inadequate state funding is causing severe deficits in education resources essential to enable students to succeed in school and in violation of their constitutional rights. 

The Maisto plaintiffs will argue that the trial court failed to evaluate the trial evidence under the constitutional standards established in the landmark Campaign for Fiscal Equity (CFE) case. In CFE, the Court of Appeals – New York’s highest court – ruled that, to prove a violation of the right to a sound basic education, parents and students must present evidence of a lack of adequate educational resources (such as sufficient numbers of qualified teachers, support staff and services for at-risk students) and low student outcomes and show that these inadequacies could be improved by additional funding.

The eight districts in the Maisto case are Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie and Utica, serving approximately 55,000 students.

The Maisto trial is the first to be completed on a constitutional challenge to inadequate school funding since the CFE trial in 2000, involving the New York City school district. With the remand of the NYSER case by the Court of Appeals earlier this summer, Maisto remains the only case which can result in improvement in education aid for poorer students in the near future. The stakes, therefore, could not be higher.

Among the evidence ignored by trial court in Maisto is the impact of significant and chronic underfunding of the State’s Foundation Aid funding formula enacted in 2007 to ensure adequate resources for all New York students. The evidence demonstrated that the State’s funding shortfalls triggered severe reductions and elimination of staff, services and programs essential to providing Maisto students the opportunity to succeed academically. The State stipulated at trial that had Foundation Aid been fully funded, the eight districts collectively would have received over $1.1 billion in additional state education aid from 2010-11 to 2014-15. 

The Maisto students are asking the Appeals Court to reverse the trial judge’s decision.

If the plaintiffs prevail on appeal, the State will be required to correct decades-old funding disparities between wealthy and poorer districts. By the State’s own calculations of the Foundation Aid formula, the Maisto districts are underfunded by at least $147 million in the 2017-18 school year.  If not addressed, this funding gap will continue and increase in future years.

Fred Wachmeister, President of NYSASCSD and a board of education member in Plattsburgh CSD, said, “We commend the parents and students in the Maisto litigation for their persistence in bringing this case to trial and now to the appeals court. They have kept the issue of inadequate school funding on  the State’s radar. I also commend the Maisto legal team for its stellar work at trial and before the Appeals Court. The association’s Board of Directors and the school districts participating in the case have also been instrumental in the effort to ensure their schools have what is necessary to provide their students with a sound basic education.”

“We look forward to arguing this pivotal case before the Appeals Court,” said Gregory Little, a lawyer at the law firm White & Case and lead co-counsel on the appeal. “The trial court clearly erred in its ruling, and we will be urging the Appeals judges to quickly reverse the decision and directly enter judgment for the students.”

The lead appellate counsel for the Maisto students are David Kunz, Esq. and George Szary, Esq. of DeGraff, Foy and Kunz, LLP  in Albany, and Gregory Little, Esq., and Laura Garr ofWhite & Case in New York City. White & Case is representing the plaintiffs pro bono

The Maisto legal team also includes David G. Sciarra, Esq. and Wendy Lecker, Esq. of Education Law Center; Robert E. Biggerstaff, Esq. and Laura K. Biggerstaff, Esq. of The Biggerstaff Law Firm, LLP; and Robert Reilly, Esq. and Megan Mercy, Esq. of New York State United Teachers (NYSUT).


For More Information:

C/o The Biggerstaff Law Firm
Attn: Elizabeth Biggerstaff
Deputy Executive Director
1280 New Scotland Road
Slingerlands, NY 12159

Education Law Center
Attn: Sharon Krengel
Outreach Director
60 Park Place, Suite 300
Newark, NJ 07102
973-624-1815, x 24



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Press Contact:
Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
973-624-1815, x240