Over two dozen education advocacy groups have been subpoenaed by Attorney General Tish James’ office in an ongoing lawsuit challenging New York’s education funding – subpoenas the groups argue detract from their core missions of serving students, parents and educators.
The groups are all member organizations of New Yorkers for Students’ Educational Rights (NYSER), the lead plaintiff alleging the state’s education funding system is depriving students in Schenectady and other districts across the state of a basic education.
In what an attorney for the plaintiffs called an “effort at harassment and delay,” the attorney general’s office has sought extensive records from the 29 NYSER member organizations – groups that range from the influential New York State School Boards Association, New York State Parent Teachers Association and New York State Council of School Superintendents to small advocacy groups with staffs of two or three people and a handful of New York City’s local community education councils.
The groups, which argue they are not party to the underlying lawsuit but rather members of NYSER, have objected to the subpoenas as overly broad, burdensome and seeking irrelevant information. In interviews, leaders of some of the groups said if they were forced to fully comply with the subpoenas, their education-focused advocacy work would be diminished. Subpoenas are a legal tool used in lawsuits to compel the production of documents and testimony.
“Not only would it obviously detract from our core mission, but the time and attention (to comply with the subpoena), given the number of staff people we have, would bring things to a halt for a substantial period of time,” said David Little, executive director of the Rural Schools Association of New York State, an organization with a three-person staff.
Little estimated hiring outside lawyers and experts to comply with the subpoena would cost the Rural Schools Association tens of thousands of dollars.
The document requests appear to be a new tactic in the years-long litigation over whether the state is appropriately funding school districts. The groups were not subpoenaed as the underlying case, first filed in 2014, made its way to the Court of Appeals in 2017. In a previous education funding lawsuit brought by the Campaign for Fiscal Equity and focused on funding for New York City schools, which culminated in the precedent that the state’s children are constitutionally guaranteed a “sound, basic education,” the state did not subpoena the member organizations supportive of the Campaign for Fiscal Equity.
Bob Lowry, deputy director of the Council of School Superintendents, said in his 17 years with the organization it had never been subpoenaed by the state, until now.
But the discovery process was restarted last year after new plaintiffs – including Jamaica Miles and Janelle Hooks, the parents of Schenectady students – joined the suit in an effort to develop more examples of under-funded districts for the courts to consider.
In response to the subpoenas, NYSER attorneys filed a motion to prevent the state attorneys from compelling documents from the member organizations; the state responded with a counter-motion asking a judge to prevent NYSER from interfering in its efforts to seek documents from the outside groups. Lawyers have asked the judge in the case to hear arguments on the motions at a hearing set for the coming week to address a separate issue.
Lawyers from the Attorney General’s Office have accused NYSER’s attorneys of creating “numerous obstacles to delay or prevent (the state’s) access to this information.” On the one hand, the state lawyers argued, NYSER attorneys cited precedent to suggest the state could pursue documents from the member organizations through third-party subpoenas; on the other hand, the NYSER attorneys advised the member organizations to not comply with the subpoenas and are asking a judge to quash them.
“Although NYSER insisted that discovery of its component organizations proceed through third party subpoenas, Plaintiff NYSER has admittedly been advising these organizations not to comply with Defendant’s subpoenas,” Christopher Coulston, an assistant attorney general on the case, wrote in a court filing.
The state’s lawyers also pointed out that while NYSER argued the member organizations are not party to the lawsuit, NYSER has also asserted that communications with the member organizations should be protected by attorney-client privilege.
The attorney general’s press office did not respond to requests for comment.
Michael Rebell, a lead attorney for NYSER, in an interview Thursday said the state’s use of subpoenas against the member organizations was an “outrageous” tactical escalation he argued won’t bring the case any closer to a resolution.
“I’m just outraged by what the attorney general is doing here,” Rebell said. “I think it’s reprehensible.”
The subpoenas demand the organizations provide records – as detailed as email metadata – dating back 12 years touching on correspondence with NYSER, decisions to join NYSER, interactions with districts from which the plaintiff families come, and more.
The subpoenas also ask for “all documents or communications… regarding this lawsuit or the subject matter of this lawsuit” and other requests that would potentially implicate large quantities of documents that would take time and money to compile.
“Certainly it’s not an easy thing to comply with, and it is requiring a fair amount of effort on our part,” said Lowry, of the State Council of Superintendents. “Other things we would be doing we are not able to do as part of our initial efforts to comply with our subpoena.”
Rebell said large organizations like the superintendents council and school board association would potentially have an enormous volume of records that may respond to the subpoenas – even if those records aren’t relevant to the case, he argued.
“It’s a huge burden, it’s a huge expense and for what? It doesn’t even matter if the school boards (association) took whatever position, they aren’t the plaintiffs in this case and it doesn’t matter,” Rebell said.
The smaller organizations don’t have the legal resources of the statewide associations, and Rebell said some may have to withdraw membership from NYSER if they are forced to comply with the subpoena. One of the subpoenas was served at the home of one of the group’s leaders, because the group no longer has office space. And a handful of New York City’s community education councils, parent groups that comment on education policy in the city, couldn’t get the city’s attorneys to help them respond to the subpoenas.
Rebell and one of the member organization’s leader raised Attorney General Tish James’ campaign focused on social justice in questioning her office’s approach in the case.
“How she allows her office to be involved in this kind of harassment of grassroots parent groups and advocacy groups, I don’t know,” Rebell said. “It serves no valid legal purpose.”