By Albert Samaha
By Darwin BondGraham
By Keegan Hamilton
By Anna Merlan
By Anna Merlan
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By Tessa Stuart
By Albert Samaha
Michael Rebell, the attorney who spearheaded the 10-year-old lawsuit to overturn the state's discriminatory school-aid formula, went to a New York Bar Association gathering in April to hear his longtime adversary, Attorney General Eliot Spitzer. Rebell was then nervously awaiting the Court of Appeals decision that came down last week, striking the formula by a 4-to-1 vote, and he could not resist the opportunity to ask his longtime opponent Spitzer about the case. He'd wondered for years why Spitzer was taking positions in court that seemed so contrary to his larger public profile.
"He was speaking about his Wall Street cases," Rebell recalls, "so I just asked him, since he was such a liberal crusader on those issues, 'How do you justify backing the governor in the school case?' He just gave me the standard answer that he had a constitutional duty to defend the state." Rebell says he has long found it "incongruous" that Spitzer's decision to represent George Pataki in this suit has drawn so little criticism, adding that he "was never convinced that Spitzer was required" to do so.
In fact, Bob Abrams, who was AG from 1978 to 1993, infuriated Governor Mario Cuomo by refusing to defend the state on everything from Westway (a development plan for the West Side) to sports betting to the cleanup of toxic dump sites. Louis Lefkowitz, who preceded Abrams, did the same, declining to represent the Carey administration on Westway. In an object lesson for Spitzer, Cuomo was so incensed by what he branded Abrams's "weathervane representation" that he told the Times that if the AG "did not want to take on such cases," he "might not need as big a budget as he has." That threat provoked Abrams's spokesman to point out that all six attempts since 1846 to make the AG an appointive office had failed.
"The Attorney General is sworn to uphold the constitution," the Abrams spokesman said, "and he has an obligation to be independent and to exercise independent judgment."
Rebell, whose Committee for Fiscal Equity brought the suit when Cuomo was still governor, puts it in classic attorney-client terms. "If you have a disagreement with a client, an attorney can't go forward with a case," he argues. Rebell believes that when Spitzer took office in January 1999having inherited the case from Dennis Vacco, the Republican AG he defeatedhe "had to decide what position to take as to the constitutionality of the formula." That was "the most logical point," says Rebell, for Spitzer to back out, if only by informing the governor that "my reading of the state constitution" doesn't permit this defense.
"A lawyer tells his client what the law says," Rebell observes, and if he and his client have a fundamentally different view, the client gets another lawyer. That's why Cuomo and Hugh Carey wound up represented by private attorneys in the Westway litigation.
Recalling the dispute with Abrams, Cuomo says that "nobody wants a lawyer who doesn't want to handle a case," including governors. Cuomo's counsel researched Abrams' refusalslooking at precedents that "went back to Governor Averell Harriman" in the 1950sand Cuomo says now that the AG "definitively has the option to opt out" and "the governor can refuse to turn to the AG" if they differ.
Joseph Wayland, the Simpson Thatcher partner who argued the case for Rebell's committee pro bono, contends that "early on there were approaches to Spitzer," but nothing happened. "I urged him on a number of occasions to rethink the state's litigation strategy. I think there were opportunities for political leadership available to him and the governor and the legislature, and they were missed by everyone. I think it's sad that we had to litigate this case and get the Court of Appeals to say that a high school education is minimally required and that the conditions of NYC schools are inadequate."
Wayland was particularly critical of some of the arguments Spitzer's office made in the case, which he characterized as "completely antagonistic" and "extreme," such as the contention that students are class-bound captives of their socioeconomic status. Steve Sanders, chair of the assembly's education committee, echoed Wayland, saying he "told Spitzer's people that there were witnesses for the state who wouldn't even help them, who suggested that kids failed based on the educable nature of their race." Sanders said his objections "ruffled some feathers in the AG's office" but that he thought "that kind of analysis being placed on the record was offensive."
One Spitzer witness that Sanders particularly assailed was David Armor, an "expert" cheered by David Duke and paid $250,000 by the AG to testify that there wasn't "much that can be done to overcome the gaps between the poor and nonpoor." The subject of a Voice profile ("Pataki's Poster Boy," August 7, 2002), Armor is so controversial that one federal appeals panel found that he "simply does not accept the Supreme Court's view of injuries and stigma" found in the landmark Brown vs. Board of Education integration case. Armor's statistical contention, adopted in Spitzer's briefs and the appellate decision last year that temporarily derailed the school-aid case, was that there was "no significant effect of resources on achievement."