Tomorrow New York Supreme Court judge will hear a case that the plaintiff’s attorney argues provides the court with “a historic opportunity to give real substance to the right to an adequate education.” Dianne Payne will take her children’s plea for school vouchers to a new court after her earlier attempt was denied, without comment, by the judge who has presided over the Campaign for Fiscal Equity suit. Ms. Payne, a single mother of five in Queens, asks Judge Marilyn Diamond to save her two youngest children from the city’s public school system.

Ms. Payne, a product of private schools, knows exactly what the alternatives are. Her two oldest have attended Catholic schools, while her middle child was so bullied in a public school that the teenager attempted suicide before finally securing a transfer. Her youngest two, Rayshawn and Daquasia, are in public schools, where 12-year-old Daquasia is doing fairly well in her gifted and talented program but faces uncertain prospects in high school, while 10-year-old Rayshawn lacks the special education services he’s supposed to receive for a speech difficulty.

Ms. Payne, a retired corrections officer active in PTA, originally sought aid in Judge Leland DeGrasse’s courtroom when she attempted to attach her request for vouchers to the CFE suit. Judge DeGrasse denied, with a handwritten, one-sentence ruling denying her even a hearing. Ms. Payne has not been deterred and has now filed her claim as an individual suit before a new judge.

Judge Diamond has attracted attention for several rulings over the years that could augur well for Ms. Payne. In 2003, the judge ruled in Teytelman v. Wing that the state could not arbitrarily deny food stamps to otherwise qualifying legal immigrants, including two Holocaust survivors, Yankel and Vera Teytelman, who arrived after a 1996 cutoff. In 2001, she allowed a lawsuit over art stolen from Jews during the Nazi era to proceed despite the defendant’s claim that too much time had elapsed.

She now has another chance to win fame, and potentially even a place in the history books. She has the law on her side, if she’ll take that opportunity. As Ms. Payne’s lawyer, Eric Grannis, argues in his brief, the courts have already found that the city and state are failing to provide a constitutionally adequate education in the public schools, and Rayshawn and Daquasia don’t have time to wait for Albany and Tweed Courthouse to finish quarreling over money. No legal principle stands in the way. Judge Diamond has waded through much more complicated cases in her career on the bench, including one involving the custodial rights of a surrogate mother. A case involving the rights of two children to a quality education is a no-brainer by comparison.

Generations of parents in New York already have watched their children suffer from a lack of choice in schooling. Ms. Payne has handed the courts an opportunity to put an end to the cycle. Judge Diamond can seize that opportunity. We’d prefer to have the legislature and the governor, or the mayor and the city council, create vouchers, but since Judge DeGrasse has seized control of the state’s education policy with respect to New York City, Judge Diamond may as well take the matter to a conclusion that would help parents. She can rule that the city’s children have a right to a decent education even, or especially, when the public schools can’t provide one. The court has nothing to lose, and New York’s children have everything to gain.