contrast, nineteen state constitutions mandate a system of public
schools meeting an articulated standard of quality such as
"thorough and efficient"; eight state constitutions contain a
stronger and more specific educational mandate and purposive
preambles; and seven state constitutions impose the greatest
obligation on the state legislature by providing that education is
"fundamental," "primary" or "paramount" ( see id.; see also
William E. Thro, School Finance Reform: A New Approach to State
Constitutional Analysis in School Finance Litigation, 14 J L &
Politics 525 [Summer 1998]).
31 The parties identified and deposed 30 expert witnesses prior
to the trial, which featured 72 witnesses and consumed 111 court
days over a seven-month period.
32 In assessing the role of expert testimony at the trial in this
case, one commentator has remarked that "[i]n many cases, the
academic literature is divided on an issue, so the Court took one
side" (Clive R. Belfield & Henry M. Levin, The Economics of
Education on Judgment Day, J of Educ Fin, 28 [Fall 2002]at 183206.) Of course, trial courts do this all the time, but usually not
when determining what a constitutional standard means or
whether it has been violated.
33 These risks were recognized at the time by Judge Levine,
who concurred in CFE I, and by Judge Simons, who dissented.
Judge Levine carefully tracked the trial and intermediate appellate
progress of Levittown. He noted that both lower courts had found
violations of the Education Article by applying constitutional
standards remarkably similar to the template announced by the
majority in CFE I, yet in Levittown we held as a matter of law that
plaintiffs and intervenors had not established a constitutional
violation. Judge Levine worried that the majority's interpretation
of the Education Article might be read to reject Levittown so as to
“invite[] and inevitably * * * entail the subjective, unverifiable
educational policymaking by Judges, unreviewable on any
principled basis” ( CFE I, 86 NY2d at 332). Judge Simons
harbored no doubt that the majority had strayed from Levittown,
observing that "[o]f course, the majority may interpret the State
Constitution, or our Levittown decision, as mandating a level of
student performance and authorizing judicial determination of the
curriculum and facilities and State funding necessary to achieve
that level if it chooses, but I believe it unwise to do so * * * " (
id. at 341).
34 In Paynter v State of New York (decided today), we observe
that "[t]he causes of academic failure may be manifold, including
such factors as the lack of family supports and health care. But if
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