A New York appellate court will next week receive an appeal from a mother of five who says city schools have shortchanged her children — and who wants, as a remedy, the money to send them to a private school.

Dianne Payne, who sued on behalf of her two youngest children, sixth-grader Rayshawn and eighth-grader Daquasia, is appealing a trial court’s rejection of her claim that until the New York City schools see the money won in the Campaign for Fiscal Equity lawsuit last fall, she should be able to send her children to private schools using public money.

If successful, the suit could force a school voucher system of the sort that has been implemented in other jurisdictions but not so far in New York. The appeal comes as Governor Spitzer has allocated more than $3 billion to city schools in his budget to comply with an order from the state’s highest court. In addition, the city has stepped up its own schools spending by more than $2 billion over the next four years.

Ms. Payne, however, says that until that money is in the hands of New York City educators her children are not receiving the adequate education guaranteed to them in the state constitution.

“Being allocated and being received are two entirely different issues,” Ms. Payne, a retired corrections officer, said. “How long are we going to wait?”

Next week, Ms. Payne’s lawyer, Eric Grannis, will submit an appeal to the state Supreme Court’s appellate division in the First Department. He says that despite the Campaign for Fiscal Equity’s legal victory, there is no guarantee that the extra $5 billion will come this year. He pointed to doubts that Mr. Spitzer’s budget can pass through the state Legislature with the extra education dollars intact, and suggested that the new education funds may not be safe from cuts if there are future fluctuations in state finances. The CFE case has dragged on for 13 years.

“Dianne’s kids have been educated so far for eight years in a system which has inadequate funding,” Mr. Grannis, the husband of former City Council education committee chair, Eva Moskowitz, said. “Rather than assume after eight years that she’s going to get what she wants, we should give her the relief.”

Rayshawn, who has been diagnosed with a speech delay, has an Individualized Education Program requiring him either to have access to a resource room or help from a speech teacher, which he did not have at his elementary school. This year, however, he attends a neighborhood middle school in Hollis, Queens, that his mother has said she is satisfied with. Daquasia is in a gifted-and-talented program at the same school, but Ms. Payne has said she worries about Daquasia’s options when she enters high school next year, noting there was a stabbing at the local high school this year. She said she is planning on sending her to Christ the King, a parochial school attended by two of her older children, regardless of whether she wins the case.

“If it means I have to come out of retirement and go back to work, so be it,” she said.

The state attorney general’s office, in papers responding to the appeal, said the state’s education law only covers the state’s responsibility to fund whole districts and doesn’t extend to individuals. If it did, it “would wreak havoc,” the papers said, because of the potential that millions of parents could sue on behalf of their children.

It also argues that the Paynes should not be allowed to repeat a case that has essentially already been fought and won by the Campaign for Fiscal Equity, and added that Rayshawn might already be eligible for private school vouchers because of his disability.

“It’s a fair point, … but the fact that you have an IEP doesn’t necessarily mean that it’s going to be concluded that you’re going to get Carter money and that it’s going to get you out of the public school system,” Mr. Grannis said, referring to the program that allows special education students to use public money to go to private school if the public schools don’t have sufficient resources to educate them.
“But that’s not what she’s saying,” Mr. Grannis said. “Her point is not that there’s a particular point with her kid, her point is that there’s a problem with the system educating the kid.”

The decision being appealed is one by Judge Leland DeGrasse, who decided last year not to hear the Payne case, ruling that the state’s failure to meet its constitutional obligation to provide a sound basic education does not give rise to a private cause of action.