E-Accountability OPINION

Due to the inability of New York State and it's legislators to provide a plan for re-distributing school funds, the school financing issue will now be determined by three Special Masters. The New York Times article below does not report the excellent characterization of the political mess partisan politics has played, described by Mr. Joseph Wayland (one of the plaintiff's Attorneys) as "This is a day of shame." Mr. Michael Rubell stated that under consideration was a Motion that the State be found in contempt of court - the Times reports below that they did not ask this of Judge Degrasse, but this is not true. We will all watch what happens next, and see what happens in the November elections. Judge Degrasse gave the three Special Masters until the end of November to provide a plan.

Many people are calling for a complete overhaul of the legislature, and all members are up for re-election. We hope that New Yorkers are following this political and fiscal scandal, and will vote to provide New york will a group of politicians who will fight for the rights of our children and who care about the education of all children in New York City. Or, is this simply impossible?

Betsy Combier

Manhattan Supreme Court Judge LeLand Degrasse:
Judge Steps in to Prod State on School Aid
By GREG WINTER, NY TIMES, August 4, 2004

A state judge took a first step yesterday in what may ultimately become a court takeover of the way the state distributes billions of dollars to New York City's public schools.

The judge, Justice Leland DeGrasse of State Supreme Court in Manhattan, appointed a three-member panel, including two former City Bar Association presidents, to scrutinize the state's efforts to provide city students with a "sound basic education" and possibly set new standards for what a decent school is.

The move followed Albany's failure to come up with a plan of its own.

In June 2003, the state's highest court ordered lawmakers to overhaul education spending in order to stop shortchanging the city's schools. It imposed a deadline, which passed last Friday with an abundance of recriminations but no legislative action.

With the case back in court, Justice DeGrasse appointed the panel not only to assess the state's compliance with the court order, but also to help determine by how much class sizes should be reduced and how well teachers should be trained.

"We're not here to make policy," Justice DeGrasse told a full courtroom. Yet he reminded lawyers for the state that he was responsible for protecting the constitutional rights of students, and that meant more than merely tweaking any plans legislators might send his way.

Though he welcomed suggestions from both sides in the case, Justice DeGrasse ultimately picked his own panelists, whom he called referees.

They are E. Leo Milonas, a former state appellate judge who stepped down as president of the City Bar Association earlier this year and is himself a product of the city's public schools; William C. Thompson, a former New York City Council member, state senator and appellate judge, who is also the father of the city's comptroller; and John D. Feerick, the former dean of Fordham University School of Law, who was president of the City Bar Association in the early 1990's and has been appointed by courts to serve in a similar capacity many times.

Mr. Feerick is perhaps best known for heading a commission that looked into the integrity of state government in the late 1980's.

"These are the wise men of the New York City bar," Joseph Wayland, one of the lawyers for the plaintiffs, a group called the Campaign for Fiscal Equity, said of the referees.

The exact scope of the panel's mission remained somewhat vague, and some of the referees themselves indicated that they had yet to see the judge's order defining their work. However, Justice DeGrasse did say the panel would have until the end of November to figure out some of the more salient issues in the case, like the quality of the city's teachers.

Given that the panel's conclusions are months away, it is unlikely that any action the court takes will have much of an impact on the coming school year.

In the interim, the governor and the Legislature could still reach the kind of consensus that has eluded them for more than a year and present the court with a plan for improving the city's schools. Some lawmakers, however, seemed doubtful that that would happen.

"Once we pass a budget, which is likely to be the end of next week, it is unlikely the Legislature will be back in session before December," said Assemblyman Steven Sanders, a Democrat who is chairman of the Assembly Education Committee. "So, for all intents and purposes, there really will not be an opportunity, even if there were the will, for the Legislature to get together on an agreed-to plan before this special master panel reports back to the courts."

"Beyond that," Mr. Sanders added, "I don't think the will is there."

A spokesman for Gov. George E. Pataki said that a legislative solution had not yet been ruled out, but in the meantime the state would work with the court and its referees in whatever way was required.

While lawmakers have been unable to agree on how much more money should be spent on education, lawyers for the state argued that progress has been made toward meeting the court's mandate. The governor appointed a commission that both studied how much it would cost to improve the city's schools and recommended ways of doing so, the state's lawyers pointed out. And the governor himself has long proposed using billions of dollars in proceeds from video gambling terminals to satisfy the court's order.

It is neither entirely common nor unusual for judges to appoint a panel of lawyers or experts to help them sort through school financing cases of this kind. Several other states, including Arkansas, have turned to such panels because education spending formulas are often complex and arcane, not to mention fraught with politics.

"Many state judges are extremely sensitive to the opinion that they are engaging in judicial activism," said Steve Smith, a senior education policy specialist at the National Conference of State Legislatures, who follows school financing cases. "So as a means of alleviating themselves from those accusations, they rely on these special masters."

While some educators and politicians were pleased with the judge's decision to appoint a panel, taking it as a sign that he is serious about enforcing educational reforms, others said they still would have preferred to see a legislative solution, because it would probably encompass all of New York State, not just the city.

"This is uncharted territory for all of us. Many believe the court's authority is limited to ordering remedies for New York City, and we don't know what it will do,'' said Robert Lowry, associate director of the New York State Council of School Superintendents. "But when all is said and done, its hard to imagine a system worse than what we have right now.''

Justice DeGrasse could have taken a more aggressive stance, as a Kansas judge did in May when he ruled that the schools would essentially be shut down until lawmakers came up with more money for poor districts.

But the plaintiffs in the New York case did not ask for the state to be found in contempt for missing its deadline, though they said they had no intention of backing down should the lack of progress persist. "Our patience is exhausted," Mr. Wayland told the judge. "We're reluctant to be here,'' he added, "but we'll be here again and again and again."


Three Referees Named in School Case: Trial Court Gives Trio 'Virtually' All Powers Of a Sitting Judge
By Tom Perrotta
New York Law Journal
August 4, 2004

A state judge yesterday appointed three prominent members of New York City's legal community to resolve the education funding crisis that the Legislature and the governor have failed to address for a year.

Manhattan Supreme Court Justice Leland DeGrasse, presiding over an afternoon hearing in Supreme Civil Court, described the three appointees - John D. Feerick, the former dean of Fordham University School of Law, and former Appellate Division justices E. Leo Milonas and William C. Thompson - as special referees who would have "virtually all the powers of a judge."

Of the three, only Mr. Milonas, who was recommended by city officials, had surfaced as a possible candidate. The governor had named five possible candidates last week, but none was selected.

Mr. Feerick, who recently chaired a commission established by Chief Judge Judith S. Kaye to examine the judicial election process, is a professor at Fordham. Mr. Milonas is a former chief administrative judge and this year finished his term as president of the Association of the Bar of the City of New York. Mr. Thompson served on the bench of the Appellate Division, Second Department, for 20 years. His son is the city comptroller.

Justice DeGrasse gave the referees until Nov. 30 to decide upon an education funding scheme that would satisfy the state Constitution and comply with the Court of Appeals' ruling in Campaign for Fiscal Equity v. State, 100 NY2d 893. In its ruling, the Court said the state had failed to provide New York City children with a sound, basic education.

Three years ago, Justice DeGrasse ruled in favor of the Campaign for Fiscal Equity (CFE) in its lawsuit against the state over inequalities in education funding for city children. His ruling was reversed by a divided panel of the Appellate Division, First Department, but upheld last year by the Court of Appeals.

Yesterday the judge noted the role that smaller classes might play in improving the city's education. He said he would consider the referees' recommendations and then issue a final ruling.

Though he agreed to give the state until the end of the week to lodge objections to his order, the judge asked the state and CFE to begin their discussions with the special referees tomorrow at the offices of Pillsbury Winthrop, where Mr. Milonas is a partner.

In setting a deadline, Justice DeGrasse noted the trouble that another education ruling had caused in New Jersey. That case has returned to court a dozen times in the last 30 years and is still unresolved. Once a court shut down the entire school system for part of a summer to pressure lawmakers.

Justice DeGrasse addressed the court's role in the CFE dispute by referring to the Court of Appeals' ruling, which said the court should not create policy.

"We do, however, define constitutional safeguards," he said.

Deputy Attorney General Richard Rifkin said he was concerned that 120 days would not give the parties enough time. He asked if more time might be allotted in the future if needed. Justice DeGrasse said he had considered the matter and declined to move the deadline.

At the outset of yesterday's hearing, Joseph F. Wayland of Simpson Thacher & Bartlett, one of CFE's co-counsels, rebuked the governor and the Legislature for failing to comply with the deadline set by the Court of Appeals last June.

"I think that there is no doubt that this is a day of shame for our democratic process," Mr. Wayland said.

He said CFE had considered bringing a contempt motion but had decided to hold off on pursuing that remedy, "even though we are entitled to it."

Outside the courthouse after the hearing, Mr. Wayland said he expected the referees - whom he described as "the wise men of the New York bar" - to be specific in their recommendations, including actions that should be taken and how much those actions would cost.

Michael A. Rebell, CFE's lead attorney, said the group still hopes the Legislature would resolve the matter before the 120 days had passed.

"We hope the Legislature does something before the end of the summer," Mr. Rebell said. "That's still possible."

If it does not, the future shape of the dispute - along with the authority of the court and the scope of its solution - is unclear.

Kevin Quinn, a spokesman for Governor George E. Pataki, responded to yesterday's hearing in a statement: "We will take the necessary and responsible action in response to the court proceedings, while we continue to work with the Senate and Assembly to achieve a legislative solution on the important issue of education reform."

- Tom Perrotta can be reached at tperrotta@amlaw.com.