Winning Ways

Michael A. Rebell’s e-mail beeps. He’s about to find out if he’s won yet again in his marathon battle to win billions of dollars in new money for the New York City schools.

The graying, self-described child of the ’60s stops what he’s doing to print out the 58-page report from a court-appointed panel that will recommend how much it thinks New York state should pay to settle Rebell’s 12-year legal effort.

“Michael, do you know the numbers yet?” Samira A. Ahmed, his deputy, shouts from her office next door.

“Five point six-three,” he says. He’s talking about dollars. Billions of them.

“Oh, we got it,” she exclaims.

“Exactly what we asked for,” he adds.

He reads on. The three-member panel also endorses the $9.2 billion construction plan he proposed, Rebell calls to Ahmed. And it backs his request that the new operating money be phased in over four years—not five, as state lawyers had argued. Sometimes he delivers the news with his head bowed as he reads; other times he hops up and peeks out his door as he tells Ahmed the good news.

Rebell and his legal team have won a blowout today. It’s a result that he and his colleagues have become accustomed to since 1993, when he took what he thought was a long-shot lawsuit to court.

In the decade-plus since then, the Campaign for Fiscal Equity, the group he helped start and now runs, has won dramatic victories as the suit worked its way through the New York state courts. Two years ago, the state’s highest court declared that all public school students were entitled to a “meaningful high school education,” and that Rebell and his team had proved that New York City students weren’t getting it.

It’s exactly the kind of constitutional precedent he has sought in a career dedicated to improving the educational opportunities for children with social and economic disadvantages or with disabilities. During the 12-year legal journey, Rebell has crisscrossed the state to lobby for support. He’s worked the backrooms of the state capital, in Albany, trying to negotiate a settlement. He and his legal team have worked well into the morning debating strategy, writing briefs, and preparing witnesses for trial.

Today, Nov. 30, he will read the court panel’s report while he eats lunch at his desk, speak at a press conference in the afternoon, teach a law class at Columbia University at 5 p.m., and appear live on cable TV in the evening. At each stop, he’ll talk about his latest victory.

But first, he must study the report. He changes his eyeglasses and closes his door. He needs to read every word to understand whether he has won a complete victory. “You don’t always get everything you ask for from a court,” he says, almost in disbelief, as he sits down to scrutinize the document.

Rebell, a 61-year-old former Peace Corps volunteer, is one of a small band of lawyers whose legal efforts are changing the way many states pay for their public schools.

In New York, his victory could mean that the city’s schools will receive an annual spending increase of about 45 percent of the 1.1 million-student New York City Department of Education’s current operating budget of $12.6 billion. Lawyers in Texas, Kansas, and Massachusetts also have recently won rulings that suggest those states will soon be compelled to offer significant spending increases—perhaps of that same magnitude. And lawyers in Georgia and Nebraska have recently filed similar suits.

Such lawsuits, critics say, are misdirected. Simply adding new money to existing school systems won’t solve the problems, they say.

The premise that more money would yield better student performance failed a “real-life test” in New York City during the CFE case, according to Sol Stern, a senior scholar for the Manhattan Institute for Policy Research, a New York City-based think tank that tracks state and national policies.

From 1997 to 2002, school spending increased in the city from $8.8 billion to $12.5 billion—a 42 percent increase, Stern notes. But test scores were mostly stagnant.

“How come more money that [the schools] got during the case didn’t have any impact?” Stern asks. “And why would an extra $5 billion … make a significant impact in the future?”

During the course of the case, Rebell has convinced a trial judge, the state’s highest court, and now a panel of judicial experts that the money would matter.

Rebell is the quintessential school finance lawyer. He is studious, idealistic, and indefatigable. He routinely works well into the night. During a seven-month trial spanning 1999 and 2000, he’d be in court all day and spend the evenings preparing witnesses for the next day.

During the Thanksgiving weekend preceding the release of today’s report, he tried to negotiate a compromise with the office of Gov. George E. Pataki. The two sides got close, he says. But not close enough to ask the panel to halt the release of the court-ordered report.

Rebell’s salary is about $120,000 a year, a pittance compared to what corporate lawyers earn by managing mergers and acquisitions on Wall Street or defending New York’s celebrity defendants, such as the domestic maven Martha Stewart or the “Queen of Mean” hotelier Leona Helmsley.

“He could do some form of corporate law and be a very wealthy lawyer,” says Cassie Schwerner, the program director for the Schott Foundation for Public Education. The Boston-based philanthropy has helped finance the CFE’s litigation from the beginning. “But he uses those skills for social change.”

Stern says such comments overlook the fact that the CFE and the law firm assisting the group pro bono requested $21 million to cover legal costs in the case—which the trial judge rejected. The CFE’s portion of the request would have gone to the organization, Rebell says, but he may have received a bonus from it.

His other interests reflect the tenacity and perseverance required for his school finance odyssey. Rebell was on the cross country team of his Brooklyn prep school in the late 1950s and early 1960s. He ran the New York City Marathon in the 1980s. Today, he’s cut back on his running as nagging injuries he attributes to age have slowed him. Instead, he swims when his legs hurt too much to jog.

True to his straightforward and businesslike public demeanor, he bristles when he recalls how a reporter for The New York Times described Rebell’s animated demonstration of a dance he did at his daughter’s wedding reception.

The more accurate image of Rebell is the one of him sitting at his desk today, reading the report that could be the latest turning point in his lawsuit. If Justice Leland DeGrasse—the trial-court judge overseeing the case—accepts the recommendations of the panel DeGrasse appointed, Rebell will have succeeded beyond anything he ever expected when he started on the case.

As he finishes reading the report, he is as pleased with the end as he was with the beginning. In their final footnote, the special referees sided with the CFE on the question of whether the state should pay heavy fines if it fails to obey the judge’s final order. In closing arguments before the panel, the state’s lawyer said the court would be overstepping its powers and undercutting the legislature’s if it levied fines. But the panel agreed with the CFE that precedents in federal and state courts give Justice DeGrasse the power to fine defendants.

Rebell edits the CFE’s press release and then grabs the banner that will hang in the background at the press conference in 45 minutes. “I told you we’d win,” he says to the group’s office manager as he heads to the elevators.

Rebell wasn’t always so confident. In the early 1990s, he was the lead partner in a law practice in midtown Manhattan, mostly serving education nonprofit groups and some of New York City’s community school boards. (Although the practice still exists, Rebell says he does little work through it.) Starting in 1979, he sued the New York City public schools for failing to provide special education services required under federal law. The lower court found in favor of Rebell’s client that year, and the case is still under the oversight of a federal judge. Rebell stayed involved until 2003, when he bowed out because the CFE case was demanding too much of his time.

Starting in the late 1980s, he also was the lawyer for Community School Board District No. 6 in Manhattan’s Washington Heights neighborhood. Robert Jackson, a past president of that local school board, remembers pestering Rebell to sue the state because it kept cutting back on the city’s school budget.

Rebell told him the suit couldn’t win. The New York Court of Appeals, the state’s highest court, declared in a 1982 decision that the state constitution doesn’t guarantee the equitable distribution of education resources.

“I told him I would not take no for an answer,” Jackson, now a city councilman, recounts.

Rebell researched the subject and found that funding advocates in Kentucky and Wyoming had won cases on the grounds that their states’ school aid systems were inadequate. He also noticed that the New York high court’s 1982 decision did say that students were entitled to a “sound, basic education.” If he could prove that the state failed to provide enough money to pay for that guarantee, maybe he could argue the state was failing to meet its constitutional obligations.

He and Jackson formed a coalition among groups already fighting to improve the city’s schools and called the new organization the Campaign for Fiscal Equity.

Today, the CFE has grown to a staff of a dozen employees who work on the lawsuit, generate public support for the suit, and run a national network of legal advocates seeking funds for schools serving poor children.

While many members of Rebell’s generation used political tactics during their 20s to create change—rallies against the Vietnam War and takeovers of university administration buildings—Rebell chose a different tack when he entered Yale Law School in 1967.

He was among many lawyers of the era who had been inspired by landmark cases such as Brown v. Board of Education. “That was the way we looked at law in those days,” he says. “It was a given that we were in law school to get into social involvement and make a difference.”

In the late 1980s, he noticed education cases would win in court, but that the final resolution wouldn’t actually solve the problems. The litany of disappointments included desegregation cases in cities such as Boston, Kansas City, Mo., and Buffalo, N.Y.

To search for ways to deliver results after winning in court, he led a series of symposia on the subject at Yale Law School, where occasionally he returned to teach. After discussing case studies with other scholars, he hit on a theory: Plaintiffs’ courtroom victories would yield results only if they also won in the court of public opinion. Judges can articulate the meaning of constitutional rights, Rebell says, but legislators won’t enact programs to ensure all citizens are getting those rights unless voters support them.

When he and Jackson started the CFE, Rebell persuaded the CFE board to take its arguments to town halls and public events. And the coalition members wouldn’t limit themselves to the city’s five boroughs. They’d travel the state.

First, though, the CFE worked with more than 100 New York City public school activists to answer a vital question: Would the CFE lawsuit seek a solution that would aid the city’s schools at the expense of others—a so-called Robin Hood remedy? Or would the group argue that the city schools should receive enough money to provide a “sound, basic education” and that the wealthy areas could spend more if they chose?

The natural inclination among the activists was to demand for New York City as much as the children in the richest communities received, Rebell remembers. “There was a lot of venting, and a lot of hot tempers,” he says. But the group eventually decided it risked losing suburban allies if it tried to siphon away resources from other districts rather than try to generate new ones for the city.

The CFE then took its anti-Robin Hood message to communities throughout the state. Once he delivered the message that the CFE wasn’t trying to take away anything from their schools, Rebell says, the suit began gathering support from suburban and upstate communities.

“We never got that strong opposition that we would have gotten otherwise,” he says. “It has finessed that bloody upstate-downstate confrontation everyone predicted we would get.”

Last year, Rebell says, a majority of state lawmakers backed the $5.6 billion-a-year solution the CFE proposes. Assemblyman Sheldon Silver, the Manhattan Democrat who is the speaker of lower house, drafted a spending plan similar to the CFE’s. While Senate President Joseph Bruno, a Republican, privately signaled he would support much of what the group asked for, Rebell says, the deal broke down because Gov. Pataki, also a Republican, refused to support a plan that would raise taxes.

That stalemate led directly to the appointment of the panel of special referees. And now Rebell is standing in front of a bank of microphones, telling the New York media of this latest courtroom victory.

To his right stands Robert Jackson, who is wearing a white T-shirt over his suit jacket. The shirt is adorned with buttons that tell the story of the CFE’s lawsuit. “My School Needs Computers & Science Labs” and “My School Needs Pre-K Programs” and “8th Grade is Not Enough.” On Rebell’s left is Joseph Wayland, the litigator who has been Rebell’s co-counsel on a pro bono basis.

“We’ve gotten a wonderful decision from a panel of three distinguished jurists,” Rebell says. “Until we’re sure that enough resources are there, the job remains undone.”

When it’s Jackson’s turn, he turns to politics. “Enough is enough,” he shouts. “Pataki, Bruno, Silver—get your troops in a line. It’s time to do business on behalf of the children of New York City.”

By all measures, the legal strategy that Rebell outlined a dozen years ago has been successful. But he and other advocates are waiting for the politicians in Albany to respond. Will the CFE’s efforts to build consensus around its cause result in a political remedy? Or will the state drag the case through another series of appeals that could prolong it another year, or even longer?

Until those question are answered, Rebell’s marathon isn’t over.