Next month will be put up or shut up time for Governor Pataki and Attorney General Spitzer on education reform. For February 27 marks the deadline for them to file the state’s response to a legal petition from a Queens mother asking the state to pay tuition for two of her children to attend private schools. They can challenge her request, trapping the children in failing public schools while the legal wrangling drags on. Or they can let the deadline pass without doing anything, offering those children – and potentially many more – a desperately needed lifeline out of the city’s public school morass.

The mother, Dianne Payne, filed court papers last week in the Campaign for Fiscal Equity lawsuit asking the judge in that case, Leland DeGrasse, to force the state to rescue two of her five adoptive children. Ms. Payne, a retired corrections officer active in her Parents and Teachers Association, managed to put two of those children through private schools on her own. But, as our Deborah Kolben reported, educating two of the other three in a parochial school proved too heavy a financial burden even for this indomitable single mother to bear.

Ms. Payne’s affidavit in support of her petition recounts the story of how the public schools failed her three oldest children. Two of her sons showed great promise in the early grades, but couldn’t thrive in a school where, on entering the school building, her youngsters were subjected to daily searches that struck Ms. Payne as eerily similar to the way her colleagues at the Department of Corrections treat particularly violent criminals. She eventually scraped together enough money to send both of them to a Catholic school. Bullying by a gang drove one of Ms. Payne’s daughters to attempt suicide before receiving a “safety transfer” to a better school, although in her affidavit Ms. Payne notes that she still regrets the time her daughter has lost.

Which leaves 10-year-old Rayshawn and 12-year-old Daquasia, the children at issue in Ms. Payne’s motion. Rayshawn languishes in a public school, deprived of the special education resources he is supposed to receive for a speech difficulty, according to court papers. Daquasia currently enjoys a gifted and talented program but faces an uncertain future once she graduates to the local public high school.

Ms. Payne is trying to attach her motion to the broader suit filed by the Campaign for Fiscal Equity 12 years ago. In that case, the courts have already ruled that the public schools are failing to provide an adequate education to city schoolchildren. But while the state and city continue to fight over spending – the court has demanded that the state funnel billions of additional dollars into the city schools, a demand the state is resisting – Ms. Payne’s children are not getting educated as well as they would be if they attended a private school for half what the government currently spends on each student every year.

The motion has the potential to shake up education in the city even more than the CFE lawsuit has. While, so far at least, the CFE saga has taken for granted the notion that spending and quality are related, Ms. Payne’s motion could upend that. She is giving Judge DeGrasse – himself a product of parochial schools – an opportunity to say that results matter more than cash. Ms. Payne proposes to use some of the $13,000 a year the government currently spends for each of her two children either at a $6,000 a year Catholic school or a $12,500 private, nonsectarian school. Either way, the standard will be whether the children are learning, not how much the school is spending to teach. That’s the revolutionary concept underlying school vouchers.

Governor Pataki implicitly endorsed this idea when he unveiled his tuition tax credit proposal in his budget address last week. After a few days of hemming and hawing, Mr. Spitzer agreed, saying, “I have long advocated for finding constitutional ways to increase the assistance that the state provides to children in non-public schools.” This is just such a way – it would remedy what the courts have found to be an unconstitutional system. Even if Ms. Payne selected the Catholic school, the Supreme Court has ruled religious school vouchers constitutional under the First Amendment and the only other obstacle would be New York’s odious Blaine Amendment, which even then might not be a hurdle under New York courts’ interpretation of the provision.

Now they can make their endorsement explicit. Mr. Spitzer, as the state’s lawyer, could advise the governor – or the governor could direct Mr. Spitzer – not to challenge Ms. Payne. The mother would then only have to wait for Judge DeGrasse to rule one way or the other, avoiding a protracted legal fight with all the powers of Albany. The state, the city, and the courts have years to bicker about dollars. Rayshawn and Daquasia have one shot at a real education. Governor Pataki and Attorney General Spitzer must not stand in the way.