October 16, 2004
Schools Are Breaking Law on Transfers, Suit Charges
By ELISSA GOOTMAN, NY TIMES

LINK

The New York City Department of Education has violated state law by seeking to limit the number of students allowed to transfer out of failing schools, according to a class-action lawsuit filed yesterday.

The lead plaintiff in the suit, filed in State Supreme Court in Manhattan, is Jessica Lopez, who is still waiting to see if her 5-year-old twins will get to transfer out of their failing Queens elementary school.

According to the federal No Child Left Behind Act, children who attend schools that receive federal anti-poverty money and are deemed failing should be given the option to transfer elsewhere.

A similar suit challenging the city's compliance with the law was dismissed last year after a judge ruled that the plaintiffs - parents - did not have legal standing to sue. The new lawsuit takes a different tack, hinging on state education regulations that were adapted to conform with the federal law. States are charged with ensuring that their school districts comply with No Child Left Behind.

Last year, 7,000 New York City schoolchildren, in all grades, transferred out of failing schools under the federal law. This year, however, Schools Chancellor Joel I. Klein is limiting the number of transfers, saying he did not want to overcrowd schools that would receive the transfer students.

To limit the number of students seeking transfers this year, the Department of Education deemed high school students ineligible, saying the high school admissions process had already afforded them the element of choice that the law requires. That decision has been heavily criticized by some parents and public officials.

The suit filed yesterday identifies as members of the class only those children - fewer than 5,000, city education officials said yesterday - who have applied for transfers. But Charlie King, a lawyer in the case, said the class would be expanded to include all of the more than 300,000 children who attend schools labeled failing. Mr. King said he believed parents were discouraged from seeking transfers, partly because they were being offered so late. A month into the school year, the transfers have yet to be granted.

Chancellor Klein said he believed the suit had no merit and observed that Mr. King's earlier suit had been dismissed. He also said that no transfer requests had been rejected this year. Officials have said they hope not to reject any of this year's transfer requests, a hope based on the assumption that two-thirds of those who asked to transfer will decide to stay put.

"There's no purpose whatsoever to take a high-performing school and make it overcrowded, dysfunctional and unsafe," Mr. Klein said. "We're in compliance with No Child Left Behind. We're doing it sensibly, intelligently and doing what's right for our kids."

Ms. Lopez is among the parents who are awaiting word on whether their transfer requests will be accepted. She said she was dismayed that her sons, Christopher and Dylon Parisi, had done little more than play and write their names at Public School 225 in Rockaway Park, saying, "In kindergarten, you're supposed to learn a little bit more than that."