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Published in Print: January 25, 2006, as N.Y.Parent Seeks Tuition From Judge in Aid Case

N.Y. Parent Seeks Tuition From Judge in Aid Case

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A New York City mother asked a state judge last week for public money to send two of her children to private school. If her request is granted, she could change the course of school finance cases in New York and other states.

Dianne Payne leaves the Tweed Courthouse in Manhattan after asking a judge to force the state to pay the same amount of money that the New York City system spends per pupil for two of her children to attend private school.
Dianne Payne leaves the Tweed Courthouse in Manhattan after asking a judge to force the state to pay the same amount of money that the New York City system spends per pupil for two of her children to attend private school.
—Emile Wamsteker for Education Week

Dianne Payne, an adoptive mother and a PTA president from Queens, asked the judge overseeing the state’s 13-year-old school finance case for $26,000 to remove two of her five children from what she considers inadequate public high schools and place them in private schools, where she contends schooling is better.

The filing was officially announced during a Jan. 18 press conference on the courthouse steps in Manhattan.

“Because the state is failing to fulfill its obligation to provide for an adequate education, [state officials] can be forced to grant Ms. Payne essentially a tuition voucher until they bring themselves into compliance,” Eric J. Grannis, the New York City-based lawyer representing Ms. Payne, said in an interview.

She is seeking the amount that the city spends per pupil in its public schools.

A lawyer representing the plaintiffs in the long-running finance suit, Campaign for Fiscal Equity v. State, said he hadn’t decided whether he would support or oppose Ms. Payne’s demand. But he did say he thought it was unlikely that she would succeed.

“If they’re going to prevail, they would be making new law,” said Michael A. Rebell, the counsel for the Campaign for Fiscal Equity, a coalition of New York City parent groups. “As a matter of law, they have a lot of precedents to overcome.”

But school choice advocates are confident they have convincing arguments to put before judges in New York and other states. Ms. Payne’s plea is the “opening salvo” in efforts to turn so-called adequacy cases into vehicles for installing private-school-choice programs, said Clint Bolick, the president and general counsel of the Phoenix-based Alliance for School Choice, a national pro-voucher group.

“Specific students in specific schools aren’t getting the education to which they are legally entitled,” he added. “Do they have to wait 10 years for some kind of remedy to trickle down to them?”

Legal Convergence

The introduction of school choice into school finance cases marks the convergence of two of the most important education issues facing state and federal courts in the past decade.

Dianne Payne listens as lawyer Eric Grannis takes questions from reporters outside the Tweed Courthouse in Manhattan. Ms. Payne asked a judge to make the state pay for her children to attend private school at the same $13,000 per-pupil funding level that New York City's public schools spend.
Dianne Payne listens as lawyer Eric Grannis takes questions from reporters outside the Tweed Courthouse in Manhattan. Ms. Payne asked a judge to make the state pay for her children to attend private school at the same $13,000 per-pupil funding level that New York City's public schools spend.
—Emile Wamsteker for Education Week

During the 1990s, Mr. Bolick organized cases that led to a 2002 U.S. Supreme Court decision declaring it permissible under the U.S. Constitution for students to use publicly funded vouchers for tuition at religious schools.

Also during the 1990s, Mr. Rebell argued in the CFE case that New York state had failed to provide the 1.1 million children attending New York City public schools with the “sound, basic education” they are guaranteed under the state constitution.

The state’s highest court ruled in 2003 that the state had failed to offer a “meaningful high school education” in New York City and ordered the state to increase school aid for the city. The state missed the July 2004 deadline, and is appealing a trial court’s order to increase New York City’s school budget by $5.6 billion a year—or 44 percent—over the next five years.

Plaintiffs have won cases in state supreme courts using similar academic-adequacy arguments in Arkansas, Kansas, and Montana.

Now, Mr. Bolick is working to persuade state courts to offer school choice remedies in cases in which they declare a state’s school system inadequate. ("Movement Afoot to Reframe Finance-Adequacy Suits," Oct. 26, 2005.)

He said he expects to file an adequacy suit seeking a school choice remedy in the coming months, though he would not say which state he has targeted.

Mr. Rebell said that Ms. Payne, meanwhile, would have a hard time convincing Justice Leland DeGrasse, the trial-court judge overseeing the CFE case, that she deserves relief under that case. In its 2003 decision, the New York Court of Appeals was careful to limit the state’s culpability to the New York City district, and not include other districts in the state, let alone individual children.

But in a request for injunctive relief on behalf of Ms. Payne, Mr. Grannis argues that her children deserve an immediate solution.

Ms. Payne’s children “are not cryogenically frozen, waiting to emerge from a state of suspended animation when the state gets its act together to fulfill its constitutional duty,” writes Mr. Grannis, who is handling the case pro bono. “Rather, they are real, living, growing children who are losing their opportunity to be educated.”

Justice DeGrasse has not scheduled arguments on the motion.

Vol. 25, Issue 20, Page 7

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