On the question of accountability, the Referees concluded that existing state systems,
identifying schools that perform poorly and sanctioning failing schools, already provide
adequate accountability, and that no new Office of Educational Accountability should be
created. They recommended, however, that the current system should be enhanced by the
development of a comprehensive "sound basic education" plan by the New York City
Department of Education.
Supreme Court confirmed the Judicial Referees' Report and Recommendations. The Appellate
Division vacated that confirmation (29 AD3d 175 [2006]). It found support in the record for the
State's "cost-effectiveness" approach, as well as for its weighting for economically disadvantaged
students. Noting that record support, the Appellate Division observed that "Supreme Court
should not have substituted the Referees' opinion for that of the State . . . [and] converted a
factor that was arguable and reasonable for the Legislature and Governor to consider into an
incontrovertible fact. As long as the State's choices remained within the range of professionally
accepted practices in determining the costs of a sound basic education, Supreme Court should
have left the conclusions for legislative and gubernatorial consideration and determination." (29
AD3d at 184.)
Citing Governor Pataki's proposal to increase funding of the New York City School District by
$4.7 billion (over a period of five years), the Appellate Division directed the Governor and
Legislature to appropriate at least $4.7 billion in additional operating funds (phased in over
four years).[FN4] The Appellate Division also directed the Governor and Legislature to
"implement a capital improvement plan that expends $9.179 billion{**8 NY3d at 27} over the
next five years or otherwise satisfies the city schools' constitutionally recognized capital needs"
(29 AD3d at 191).
Plaintiffs CFE et al. appeal pursuant to CPLR 5601 (a) and (b) (1). The state defendants crossappeal under CPLR 5601 (b) (1). II. [*8]
The Judicial Referees' Report, dated November 30, 2004, commands our attention as well as
our respect; it is likely that much of value may be learned from the Referees' careful
consideration of methods of ascertaining the cost of a sound basic education and reforms to the
current system of public school financing. Nevertheless, we hold that Supreme Court erred by,
in effect, commissioning a de novo review of the compliance question. The role of the courts is
not, as Supreme Court assumed, to determine the best way to calculate the cost of a sound basic
education in New York City schools, but to determine whether the State's proposed calculation
of that cost is rational. Supreme Court should not have endorsed an examination in which the
cost of a sound basic education in New York was calculated anew, when the state budget plan
had already reasonably calculated that cost. In this respect, we agree with the Appellate
Division. It was error to confirm the Referees' Report.
We differ from the Appellate Division, however, in two respects. First, we observe that the state