June 29, 2009
The mayor and chancellor say a post-mayoral control world would be fraught with litigation. But it’s not clear who would be filing the lawsuits.
Some of the most obvious potential litigants said today that as long as Mayor Bloomberg follows the new law, they want to stay out of court. They say they will trust that Mayor Bloomberg plans to respect the current law’s expiration if a new city school board is convened on Wednesday. That board would have only two mayoral appointees.
“If the mayor acts in good faith on that measure, at least changing the structure on top, then I think its wrong to foresee any potential litigation,” said Udi Ofer, the policy director of the New York Civil Liberties Union, which has been agnostic on the principle of mayoral control.
But a DOE official said the city is worried most about litigation coming not from good-government groups but from individual teachers, principals, and vendors with gripes against the system.
“Every decision has a winner and a loser, and a loser would argue that the person who made the decision didn’t have the authority to do it,” the official said. For example, a teacher who was fired could argue that the principal who initiated his termination was not legally appointed, the official suggested.
David Bloomfield, a parent leader and former general counsel to the Board of Education, said the law provides for clear lines of authority, if only the city would prepare for the governance transition.
“The procedures for making this happen are ministerial and require only pieces of paper that should have already been prepared so that there would be stability,” Bloomfield said.
In fact, Bloomfield said, the state education law is so straightforward that he could imagine litigation in only two circumstances: by the mayor against the reconstituted Board of Education, and against the mayor if he decides to engage in “civil disobedience” and flout the new board’s authority.
State civil code provides a legal instrument that is tailor-made for the latter situation, Ofer said. A section of the state’s civil code, Article 78, is meant to allow citizens to compel executives to follow the law. The NYCLU has filed Article 78 claims against the city in the past and would consider filing them after mayoral control’s expiration if the mayor does not convene the school board.
“NYCLU is going to be monitoring this very closely, and if the mayor does not comply with the law, then as we do on every other issue we will consider litigation,” he said.
Also, because Article 78 lawsuits are meant to be less burdensome to file and are evaluated more quickly than other suits where litigants are seeking personal gain, “a regular resident of NYC could bring a lawsuit to force the mayor to follow the law,” Ofer said.
Elected parent leaders have been discussing what they should do if the senate allows mayoral control to expire, according to Rebecca Daniels, the president of a Manhattan parent council that is party to an ongoing lawsuit against multiple education department decisions.
“This is not a discussion that has not come up. It will probably happen,” Daniels said. “I think people will come forward [as plaintiffs] because they’ll demand that they have a voice in their children’s education.”
Other critics of the mayor are holding out hope for a compromise in the State Senate, a prospect that is dimming rapidly.
“We haven’t looked at our legal options at this point,” said Shomwa Shamapande, a spokesman for the Campaign for Better Schools, which is still hoping that the senate will pass a version of the mayoral control law that gives parents more power.
“I don’t think anybody wants to see litigation,” said Patrick Sullivan, a member of the city school board in its current incarnation. ”I don’t think anybody sees the need for it.”