cure the violation properly obligated the courts to determine the extent of noncompliance and
to direct a remedy.
When courts undertake to resolve a controversy that others have brought before them, they
appropriately resort to the tools of the judicial tradetestimony, evidence and fact-finding. The
referees thus conducted seven days of evidentiary hearings on the primary question before
themthe actual cost of a sound basic education for New York City schoolchildren. Based on the
testimony of 15 witnesses, expert evidence, and extensive briefing{**8 NY3d at 36} and
argument, they rationally determined that the actual cost of providing a sound basic education
in New York City required an annual increase in operational funding of $5.63 billion, calculated
in 2004-2005 dollars. The Appellate Division, too, determined that constitutional compliance
required additional annual expenditures of between $4.7 billion and $5.63 billion. The majority,
however, rejects the findings of the referees, and indeed the very process undertaken by the
courts, and instead accepts at face value $1.93 billion as sufficient to satisfy the Education
Article. [*15]
The origins of that number are instructive. In response to our decision in CFE II, the Governor
established the New York State Commission on Education Reformthe Zarb Commissioncharged
with, among other things, "study[ing] and mak[ing] recommendations regarding . . . [t]he
actual cost of providing all children the opportunity to acquire a sound basic education in the
public schools of the State of New York" (Executive Order [Pataki] No. 131 [9 NYCRR 5.131]).
The Commission, in turn, retained Standard & Poor's School Evaluation Services, which
produced a lengthy Resource Adequacy Study offering a wide variety of possible amounts of
education spending, each based on different assumptions and variables as to the desired level of
educational achievement and the costs required to attain it.
Inasmuch as the Commission was asked to study statewide costs, even though this Court's
mandate had been limited to New York City, Standard & Poor's used each scenario to calculate
both statewide amounts and their citywide equivalents. With respect to New York City,
Standard & Poor's calculated resource gapsdefined as the difference between the amount
actually spent in the most recently completed fiscal year and the amount that would be required
to fund the particular scenarioranging from $1.93 billion to $7.28 billion in core operating
expenditures.[FN3] In so doing, however, Standard & Poor's itself repeatedly made clear that it
"does not recommend any spending level or the adoption of any particular achievement
scenario" (Standard & Poor's School Evaluation Services, Resource Adequacy Study for the New
York State Commission on Education Reform, at 23 [2004]). Relying on the Resource Adequacy
Study, and specifically endorsing the "cost effectiveness" variable{**8 NY3d at 37} considered
by Standard & Poor's, the Commission similarly reported a wide range to the Governorthat is,
from $2.45 billion to $5.57 billion statewide, which translated to between $1.93 billion and
$4.69 billion for the Cityconcluding that "[t]he State's elected leaders should make a choice of
funding within this range" (New York State Commission on Education Reform, Final Report, at