NEW YORK — It was an educational conundrum: If schools were being given money because they were called failing, once that label was removed could they still get the money?
On Wednesday, a judge’s solution was to say yes.
Last year, the New York state legislature set aside $75 million, which would be available over two years to 20 schools deemed “persistently failing” based on factors such as test scores. That money could be used for a variety of things, including counseling, legal services for students or their families, new curriculum and professional development for teachers.
In February, the New York State Education Department announced that nine of those schools were being removed from the list because the federal government no longer considered them among the state’s lowest performers, a requirement for the “persistently failing” program.
A few weeks later, according to court documents, the state’s Division of Budget froze the remaining money set aside for all persistently failing schools.
A group of parents sued the state. Their children attended schools that had been removed from the list — Roosevelt High School and the Mosholu Parkway middle school in New York City, and William S. Hackett Middle School in Albany — and they said the schools should still receive the money because they were persistently struggling when they qualified for it.
In court, the Education Department agreed with them. But the Division of Budget said it could not distribute money for persistently failing schools to institutions no longer on the list.
Morris Peters, a spokesman for the Division of Budget, said by email Thursday that the division had no way to release money only to certain schools because the Education Department distributes the funds, but that it was working with the department “to ensure that those schools remaining in ‘persistently failing’ status are able to receive their funding.”
The judge, acting Supreme Court Justice Kimberly A. O’Connor sided with the parents and ordered the Division of Budget to release the money, saying division officials had “exceeded their authority” by withholding it.
The division has “no discretion to withhold transformation grant funds appropriated by the Legislature from ‘persistently failing’ schools awarded those funds,” O’Connor wrote. “To find otherwise would upset the balance of power existing among the three coordinate and coequal branches under our constitutional form of government.”
According to the Education Department, $69 million remains frozen.
Wendy Lecker, a senior lawyer at the Education Law Center, who is representing the parents, urged the state not to appeal the ruling.
“The intent was to support these schools for two years, and now with this illegal action, they have deprived these children of services,” Lecker said. “We are respectfully urging them not to engage in any further unnecessary delay and just release the funds.”
James Allen, a spokesman for Gov. Andrew M. Cuomo’s office, said it was reviewing the decision.