IN THE NEWS - Staten Island Advance legal columnist: There is no loophole in the Staten Island school bus law

Andrew J Lanza

August 30, 2012

Published: Tuesday, August 28, 2012, 8:52 AM by Daniel Leddy

There’s no loophole. By every legal principle governing the interpretation of statutes, legislation drafted by Democratic Assemblyman Michael Cusick and Republican State Sen. Andrew Lanza regarding the restoration of yellow school bus service on Staten Island applies to all eligible middle-school students regardless of the schools they attend.

The Department of Education, however, is claiming that the statute applies only to students attending schools for which yellow bus service was provided during the 2009-2010 school year.

Hence, it has announced that seventh- and eighth-graders at the Staten Island School of Civic Leadership and the Marsh Avenue Expeditionary Learning School will have to fend for themselves on their daily commutes. The DOE thus tortures the statute’s language to read the transportation benefit as running to schools instead of children.

Cusick and Lanza are understandably outraged. After all, it was a beaming Schools Chancellor Dennis Walcott himself who, appearing at Laurie Intermediate School on April 2, stated that because of their bipartisan teamwork, “starting this September, seventh and eighth graders in the borough of Staten Island, and also those parts of Queens, will be eligible to take the yellow school buses.”

Notice that he did not use any qualifying language.

In interpreting any statute, the overriding consideration is legislative intent. In this case, there are no better sources for determining that intent than Cusick and Lanza, the two legislators who drafted the law.

Both adamantly maintain that it was intended to apply to all middle-school students on Staten Island.

In a statement read at a meeting of Community Education Council 31 last Tuesday, Cusick stated that the law’s purpose “was to provide bus service to the seventh- and eighth-grade children of Staten Island, not the institutions.”

So, even if the statute were ambiguous - and it is not - that ambiguity must be resolved in favor of the Legislature’s intent.

A second legal principle cautions that a law should not be interpreted as producing an absurd result. Yet, under the DOE’s interpretation of the Cusick-Lanza law, Staten Island’s seventh- and eighth-grade children, similarly situated with respect to their perilous commutes, would be treated disparately depending solely on what school they happen to attend.

That would certainly be absurd.

COLOSSAL BLUNDER

All of which means that the Cusick-Lanza legislation should be confidently cited by everyone committed to the safety of all Staten Island middle-school kids.

Last Tuesday, however, Community Education Council 31, played right into the DOE’s hands by adopting a resolution conceding that the bill “did not include ALL [sic] eligible 7th and 8th grade students as intended.”

On this faulty premise, the CEC called on Staten Island’s legislative representatives to amend the law to address this defect.

It was a colossal blunder, one the DOE can now cite over and over again as supporting its absurd interpretation of the statute.

That damage is compounded by the CEC’s status under law as “an advisory board providing input and comment to the Chancellor and the Panel on Educational Policy regarding the needs of the district and DOE policy.”

Hence its resolution would constitute a substantial hurdle for parents of the excluded children to overcome, should they initiate a judicial proceeding predicated on the Cusick-Lanza bill.

What the CEC fails to grasp is that the DOE’s position is not being posited in good faith. Rather, it’s just the latest in the agency’s laundry list of trickery and deceit calculated to undermine a right that Staten Island’s middle school students enjoyed for 42 years prior to its arbitrary rescission by the agency in May 2010.

CEC President Sam Pirozzolo who, perhaps not so coincidentally, is running against Cusick in the November elections, seemed to recognize that the DOE isn’t playing it straight when he told the Advance that his group tried to think of future loopholes that the DOE might try to exploit.

Which makes the CEC’s willingness to join the DOE in deeming the Cusick-Lanza bill defective all the more difficult to fathom.

Moreover, if any Staten Island legislator were actually to heed the CEC’s call and seek to amend the bill, that would be seen as the ultimate concession that the legislation is flawed.

And, of course, Albany politics being what they are, there’s at least the possibility that an amendment effort would fail.

After the DOE kicked Staten Island’s middle-school kids off their yellow buses in May 2010, it repeatedly cited only budgetary factors as the reason.

The argument that the service violated the “like circumstances” provision of the Education Law was never even mentioned until well over six months later.

Although a bogus argument - the provision was in the Education Law when the accommodation for Staten Island’s students was created in 1968 - the DOE clung to it until the Cusick-Lanza bill created an explicit exception from it for Staten Island’s middle school kids.

Now, despite Walcott’s gushing assurances back in April, the DOE is being duplicitous once again.

And the problem lies right there, not with the Cusick-Lanza bill.