The Department of Education, it seems, doesn’t know quite what to do with all of the children who have a right to transfer out of failing schools under the federal No Child Left Behind law. The situation has grown so dire that the Tweed Trust now is transferring students from failing schools that do fall under NCLB — specifically those that receive poverty funds under Title I — to schools that are failing but do not happen to fall under NCLB. Note that these schools all have been deemed “failing”by the same standard; the only thing that separates them is the income levels of the families at the schools.

The city’s dilemma is not difficult to understand. The federal law has established a right to transfer into a non-failing school, but it’s beyond the Congress to will into existence more successful schools or more seats therein. The city has managed to slide by so far only by dint of the low rate at which parents are asking for transfers. Ahead of this school year, the parents of only about 8,000 out of 300,000 children in low-performing schools asked for and received transfers — that’s fewer than 3% of those eligible and only about 0.6% of the 1.2 million children in New York City’s public school system. Some have claimed that the Department of Education did not do enough to inform parents of their choices the last time around; one group even filed a class action lawsuit against the city.

But that’s neither here nor there, as this time around parents will have had plenty of time to be educated. So, now the city has to find a way to accommodate what may well be a flood of parents requesting transfers for the next school year. The idea of offering tutoring in lieu of transfers has been floated from Tweed. The Department of Education is certainly free to offer such services. It is even required by NCLB to offer these services if parents in failing schools request them. But parents still will have the right to a transfer.

So, what to do? Sticking children from failing schools into other failing schools is unlikely to make anyone happy. Instead, the administration could be making an aggressive push for more charter schools. Granted, the five or so applications coming up for new charter schools won’t provide the thousands of non-failing seats needed. Nor can new charter schools be gotten off the ground overnight, though the goal is good. What could be done overnight, however, would be to convert more existing schools, let’s say failing public schools, into charter schools. It would take leadership from Schools Chancellor Joel Klein and Mayor Bloomberg, but leadership was the point of restoring mayoral control of the school system. So if the city keeps shuttling children from failing school to failing school, while failing to provide real choice, remember that Mr. Bloomberg has asked to be held accountable.