New York Sun. 3/24/2006.

In respect of the decision handed down yesterday by the Court of Appeals in the Campaign for Fiscal Equity lawsuit, let us just say, "God Bless This Honorable Court and John Adams." It was Adams who, in drafting the Constitution of Massachusetts, laid down that great slab of American bedrock known as separated powers. "In the government of this Commonwealth," the Massachusetts Constitution says, "the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

Well, the idea of separated powers came to undergird much, if not all, of the constitutional structures of America, and it was on that principle that New York's Court of Appeals found its footing yesterday in the CFE case, limiting how assertive Judge DeGrasse and the other courts in New York can be when telling the governor and the legislature how much to spend on education. Three of the judges concluded that the court could specify a spending range but that settling on a precise amount is the exclusive domain of the elected branches. Two dissenting judges notwithstanding, the majority's opinion hinging on the "well-established doctrine that it is for the Governor and the Legislature, not the courts, to adopt a dollar-specific budget" goes on the books as a welcome precedent.

Taxpayers now have some hope that their hard-earned dollars will not become the playthings of unelected joeys, thanks in no small part to the heroic efforts of their attorney general, Eliot Spitzer. Mr. Spitzer, who on the campaign trail for governor has supported the CFE's effort to extract more money from New Yorkers, did the right thing in his official capacity as those taxpayers' lawyer, arguing in a brief in this appeal that "the court below ... usurped the constitutional budget-making power of the executive and legislative branches."

The court's ruling in respect for the separation of powers is heartening in a case where the courts have been trying for years to tell elected lawmakers in Albany exactly how to spend New Yorkers' money. Not that this ends the taxpayer's travail. For even as the judges permit the elected branches to set the amount of additional money to be spent on education, all five judges appear to believe that the amount of additional money falls somewhere between $4.7 billion and $5.63 billion over several years.

How did such magical numbers emerge? Consider the following paragraphs from the ruling, recounting a gubernatorial commission's effort to determine how much to spend: "The Zarb Commission had identified three methods of determining the actual cost of providing City school children with the opportunity for a sound basic education: (1) the 'econometric method,' which uses a statistical model to estimate the costs associated with different levels of school district performance; (2) the 'professional judgment method,' which uses panels of education professionals to determine the scholastic elements needed to attain certain goals and then assigns costs to those elements; and (3) the 'successful schools method,' which examines the expenditures of school districts that meet or exceed performance standards.... The Commission selected the successful schools method as the most reliable, because it is based on actual data from school districts with a proven record of success, and is used by the State Board of Regents."

As the judges continue, "The Commission retained Standard & Poor's School Evaluation Services, which, using the successful school districts method, calculated an annual spending gap for the City schools ranging from $1.93 billion to $4.69 billion, depending on the standard for measuring a successful school district, the additional expenditures necessitated by special needs students, and the manner of converting 'standard' education dollars into New York City dollars." Finally, they note, Standard & Poor's "used four different academic achievement standards for identifying a successful school district..."

In other words, when you put bureaucrats and judges in charge of deciding what counts as a "quality education," you end up using taxpayer dollars just to study how to study the problem. Why not just let the parents decide? The way to do that would be to give them vouchers and let them figure out where to send their youngsters. Dianne Payne, a mother who tried to sue the state for vouchers under the banner of the CFE lawsuit, doesn't need a Standard & Poor's study to tell her that two of her children aren't learning in the public schools. Thanks to yesterday's ruling, the CFE lawsuit has brought New Yorkers a welcome endorsement of judicial restraint and separation of powers. But the ruling is also a reminder, albeit inadvertently, that neither the suit nor the courts will ever be as effective at bringing New York children a quality education as would be a system of parental choice, such as vouchers.