David McKay Wilson. Journal News. 1/16/2006.

YONKERS — Though its school board is no longer a party to a lawsuit challenging New York's school-aid system, Yonkers school officials say the district will continue to fund a nonprofit group's legal efforts because a court victory could bring millions from Albany.

They also are backing the case, expected to come to trial in June, despite the dismissal of one of their major arguments: that Yonkers was shorted by the state when compared to Rochester, Buffalo and Syracuse.

State Supreme Court Justice Joan Lefkowitz ruled that both issues — districts need not be treated equally for state-aid purposes; and municipalities cannot sue the state over its school-aid system — were settled by the 1995 Court of Appeals decision involving New York City and the Campaign for Fiscal Equity on education funding for poor students.

Her decision leaves the case with striking similarities to New York City's landmark case. This lawsuit also has a lone nonprofit plaintiff — in this case, Citizens for Yonkers. It also has the same argument — that inadequate funding has resulted in a school system that doesn't deliver a "sound, basic education" to its students.

There is one difference. Once New York City was removed as a co-plaintiff, the nonprofit Campaign for Fiscal Equity financed the litigation with donations from foundations, individuals and volunteer legal help from Simpson, Thacher & Bartlett.

In Yonkers, the Board of Education will pay its lawyers, McDermott Will & Emery, financing the suit Lefkowitz ruled the board could not bring on its own. Fees are expected to reach $2.5 million.

Yonkers parent Anthony Merante, who has advocated for increased state funding, said he'd rather his district seek private funding for its legal team.

"We could have done what New York City did, and found funding for the case through other sources," he said. "All that money could pay lots of teachers."

School Trustee Thomas Weibrecht leads Citizens for Yonkers, chairing a board of four school trustees and three parents. He said the school board has the authority to fund the suit.

"The school board can allocate funds to any nonprofit group that serves an educational purpose, and gaining funding is the utmost priority of the Yonkers Board of Education," he said.

The board had anticipated that it might be knocked from the case in its contract with McDermott Will. The district pledged "in light of the fact that the objective of the lawsuit is to secure increased school funding from the state, the Board agrees, in pursuit of that objective, to continue to fund the litigation on behalf of the plaintiffs even if the Board is dismissed from the case."

The pledge raises questions about whether those payments would violate the state constitution's ban on public gifts to private entities because Yonkers is funding a private lawsuit, said Lester Steinman of the Michaelian Municipal Law Resource Center in White Plains. But he noted that public agencies can pay private entities to perform public services. "It's a legitimate question that should be answered," he said.

Dan Weiller, a spokesman for state Comptroller Alan Hevesi, whose office is auditing the Yonkers schools, referred The Journal News to two court decisions in which state appeals courts cited cases that barred municipalities from using public funds to aid private plaintiffs.

Lefkowitz removed the school board and four trustees in November, citing the 1995 Court of Appeals in New York City's CFE case. New York's highest court ruled that the city couldn't sue the state because it was a subdivision of the state and couldn't sue itself.

She also dismissed part of the board's case, in which it argued that upstate cities received more generous state-aid allocations than Yonkers. Again citing the New York City case, she said the state's highest court already had decided districts cannot assert a claim under the equal protection clause — the constitutional guarantee that individuals who are similarly situated be treated equally by the government.

The lawyers are now gearing up for the June trial as school officials are putting together the budget for 2006-07, which has a shortfall estimated at $80 million or more.

Weibrecht hopes the lawsuit might bear fruit soon.

"Who knows?" he asked. "Obviously if you go before a judge, and say you are facing a $100 million shortfall, you would presume someone would take notice."