By Mike Caputo
At a Sept. 27 hearing in Albany County Supreme Court, the case's new venue, Judge Roger McDonough refused to grant District 15 an extension of the stay, which was set to expire the following day. McDonough, like the previous judge who presided in the case, did not offer a vote of confidence that the district would win the case, according to a transcript of the hearing.
"Quite frankly, as the court sees it from my review of the papers, and the review has basically taken place in the last two hours or so, there is not a clear likelihood of ultimate success [for District 15] on the merits," McDonough said.
McDonough was ruling on the district's appeal of the State Department of Education's decision to scrap private-school pre-K transportation altogether. The decision does not impact busing for public-school students enrolled in the pre-K program at the Number Four School in Inwood.
State education department Commissioner Richard Mills issued the original decision on Aug. 31 after reviewing a case filed by Atlantic Beach attorney Elizabeth Meyerson, who represented a group of 20 district residents seeking to overturn a May referendum on the busing program. The referendum authorized the district to use public funds to provide limited pre-K transportation for public- and private-school students.
When arguments in the case were last heard, in its previous venue at Nassau County Supreme Court, on Sept. 14, Judge Geoffrey O'Connell offered a similar take on District 15's appeal. O'Connell, who referred to previous decisions by the State Department of Education and judges, concluded that he saw little "probability of success" for District 15.
In light of the district's contract with its transportation company through the end of September, O'Connell extended a temporary restraining order to allow buses to continue to operate through Sept. 28.
Whether to extend the stay through October would be the decision of the Albany County Supreme Court judge, O'Connell explained.
At the subsequent hearing, McDonough said that District 15 must demonstrate "irreparable harm" from the education department's decision in order for the TRO to be extended.
Al D'Agostino, one of three attorneys appearing on behalf of District 15, pleaded with the judge to extend the TRO. He argued that the timing of Mills's decision prevented the district from seeking alternative busing for its private-school students. District officials have contended that they were not notified of the Aug. 31 decision until Sept. 4, the day before school began.
D'Agostino also alluded to the Jewish High Holy Days as a major reason why the decision could not have come at a worse time. "As chronology would have it, we have been in court on the second day of Rosh Hashana," D'Agostino said. "We have been in court on the eve of Yom Kippur, and again [Sept. 27] is also a holiday. On those days, I cannot even reach my clients."
D'Agostino noted the difficulty of gaining affidavits from parents of private-school pre-K students during the holidays, which might provide the judge with evidence supporting an "irreparable harm" claim. If District lawyers requested an opportunity to return to court with the affidavits.
Kelly Munkwitz, an attorney from the state attorney general's office, which represents the education department, did not object to District 15's request to return with the additional evidence, but fervently opposed a two-week extension of the TRO. "I believe that the TRO is such a drastic remedy," Munkwitz said. "It is not a two-week adjournment or a two-week issue that we are talking about. My understanding is that it is month to month."
D'Agostino emphasized that 273 private-school pre-K students would be without busing. "It is our belief that some of these children may be precluded from attending or getting to these private pre-K's based upon the fact that these parents acted in reliance upon the [May referendum] vote," he said.
D'Agostino added that both parents in most of the families participating in the busing program work during the day and are unable to drive their children to and from private schools.
Munkwitz dismissed these arguments as "speculation" without any evidence documenting such hardships. She did not appear to accept the district's argument that the commissioner's decision was poorly timed as a sufficient reason to overturn it or even to extend the TRO.
"They knew the commissioner would make a decision, and I believe that the commissioner of law and state law is very strongly against their position, so they are going down the primrose path," Munkwitz said. "... It's a bit disingenuous, because they had a pretty good idea this could happen and chose to ignore it."
The next hearing before McDonough is set for Nov. 9.
Comments about this story? MCaputo@liherald.com or (516) 569-4000 ext. 210.
