Judge Stymies Mother's Attempt To Have State Fund Children's Tuition

A judge has shot down a Queens mother's attempt to get the state to pay for her children to attend private school until the city's public schools begin offering her children a "sound basic" education guaranteed under the state constitution.

A retired corrections officer who is the mother of five adopted children, Dianne Payne, sued the state, claiming that until Albany comes through with billions of additional education dollars ordered by the courts, she was owed the money the city spends on each student, about $13,000 a year, to send two of her children to private school.

"I think the entire system is just letting our children down," Ms. Payne said yesterday.

She originally tried to piggyback on a more than decade-old education funding lawsuit known as the Campaign for Fiscal Equity.

The lawsuit was started by a coalition of parent and advocacy groups in 1993, and culminated last year when a state supreme court judge, Leland DeGrasse, ordered New York State to spend at least $5.6 billion more a year in operating costs for New York City schools.

Judge DeGrasse, who is also the judge in the equity case, refused to hear that motion. She filed a separate lawsuit that Justice DeGrasse dismissed last week.

In the court papers made public yesterday, Justice DeGrasse ruled that violations of the education article of the constitution did not allow for "private causes of action."

"We are trying to draw attention to the concept that there are other ways of improving education other than only spending more money, although we're certainly not opposed to spending more money," the attorney for Ms. Payne, Eric Grannis, said.

He plans to appeal the decision and said he is optimistic that the courts could come through with the tuition.

Ms. Payne, whose children range in age from 11 to 16, pays roughly $12,000 a year to send her two oldest children to Christ the King, a parochial school in Queens.

The funds she wants are for the two youngest children to go to a private nonsectarian school. She is not asking for vouchers because she wants to avoid the separation of church and state issue that would likely arise.

Her daughter, Daquasia, attends seventh grade at I.S. 192 and her son, Rayshawn, attends fifth grade at P.S. 134 in Queens.

Until this year, they were both enrolled at Holy Trinity Community School, but Ms. Payne pulled them out because she could no longer afford the tuition.

Mr. Grannis, a commercial litigator with an office on Fifth Avenue, helped start two charter schools, including Bronx Preparatory, one of the first charter schools in the city. He is married to the executive director of the Harlem Success Charter School, Eva Moskowitz, who until January served as the chairwoman of City Council's Committee on Education.

He met Ms. Payne when he walked into a meeting in Queens late last year and said he was looking for somebody who was willing to become the Rosa Parks of education.

"Legally, we go onto the appeal," Ms. Payne said yesterday when asked about her case being dismissed. "Personally, I don't understand: Since when did education not become an individual issue?"