Wednesday, May 16, 2007

more on the cell phone decision: a dissent by Justice Goodman?

In today's Gotham Gazette there's a column by Emily Jane Goodman, a New York State Supreme Court Judge, about the recent decision by Justice Lewis Bart Stone that upheld the Mayor's cell phone ban. What’s startling is how openly critical her tone is. The column features a lengthy and very sympathetic description of the parents' plight in trying to secure the safety of their children.

She also points out, quite caustically, that Stone is only an acting” justice, who normally hears criminal cases.” His decision, she writes, "made numerous references to infractions, discipline, security, magnetometers and cited his own experiences" as well as expositions on procedural technicalities and personal philosophy along with a section labeled, "What is a cell phone?"

Two additional points:

1- Stone is the same judge who ruled against the UFT and our class size coalition that there could be no citywide referendum on class size. He went to great lengths to argue that the state did not mean to give the city enhanced powers over education when Mayoral control was established – which is why city voters could not have a voice on this issue, an argument which appeared to fly in the face of legislative intent.

In the cell phone case, again, he came out strongly in favor of upholding DOE’s prerogatives to ignore parents and unilaterally make decisions as regards our kids. He also rejected an amicus brief from the UFT, which supported the parents' position, though he accepted an affidavit from Randi Weingarten. As described in the column, he called those who submitted such briefs really “enemies” rather than “friends" of the court, and complained that the obligation to read them was overly burdensome . A Pataki appointee, Justice Stone has also told people his idol is Judge Scalia of the Supreme Court.

2- An interesting sidelight issue omitted from the column is that Stone claimed in his decision that the cell phone policy as administered by DOE was flexible enough to allow discretion on the part of principals to allow students to carry cell phones if there was good reason – if, for example, few pay phones were available. Yet this view seems to misunderstand the blanket and absolute prohibition that exists. When Chancellor Klein was asked about this very matter at the last CPAC meeting, to clarify what the actual policy was and whether the Judge got it right, he mentioned something about not commenting on litigation and glossed over the question hurriedly.

1 comment:

Daniel Millstone said...

I think that the Judge's decision in the cell phone case was predictable. It's the sort of ruling Judges make all the time in the face of challenges to an agency rule or decision. People petitioning to overturn an agency policy -- like this one -- must show that the policy is unreasonable, not just wrong.

The petitioners here did show, I think, that DOE's policy was wrong, but didn't show it was arbitrary. That's very hard to do.

So my reading is that -- acting Supreme or not -- the judge's decision will likely stand, if appealed.

What's so galling is the way Mr. Bloomberg and Mr. Klein lock parents, teachers and principals out of the process. By making their decisions essentially behind closed doors, they guarantee opposition from those of us who are not heard.