I concur on constraint of Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995] [CFE I]).
This case, like CFE I, is based on allegations that the State is not adequately funding certain of its public schools, and thus is violating the Education Clause of the State Constitution (art XI, § 1: “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated”). The Appellate Division, while believing itself bound to uphold the complaint, expressed its doubt that such cases should be in the courts. The Appellate Division said:
“Though we are loathe to enmesh the courts in a subject that primarily involves state fiscal policy and social policy concerns, rather than strictly legal issues, the Court of Appeals decision in Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995]) compels us to affirm. Courts must act with restraint and should avoid interfering with matters that generally fall within the province of the Executive and Legislature, so as to preserve the separation of powers. The Court of Appeals has expressed those concerns, yet determined that it would allow students and parents to sue defendant over school funding—a subject that not only has legal implications, but intimately intertwines them with budgetary issues and public policy choices (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 28; Campaign for Fiscal Equity v State of New York, 100 NY2d at 925; see also Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 34-35 [Kaye, Ch. J., concurring in part and dissenting in part]). Judge Rosenblatt’s concurrence in the latest CFE decision noted that those cases dealt only with school funding in the City of New York, and that a statewide approach to this problem is best left to the Executive and Legislature (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 33 [Rosenblatt, J., concurring]). While we wholeheartedly agree, and believe that those branches of *908government should be dealing with this issue without undue interference—potentially rising to the level of civil actions commenced on behalf of students in every school district across the state—we are constrained to hold that the present action must be permitted to proceed according to the course charted by the Court of Appeals.” (Hussein v State of New York, 81 AD3d 132, 134 [3d Dept 2011].)
Judge Simons expressed similar views 17 years ago in his CFE I dissent:
“It is for other branches of government, not the courts, to define what constitutes a sound basic education and, assuming the State has not defaulted on its duty to establish a State-wide system and provide financial support, to ensure that the opportunity to be educated is available to all.” (86 NY2d at 333.)
I agree with the Appellate Division here, with Judge Simons, and with Judge Read’s dissent in Campaign for Fiscal Equity v State of New York (100 NY2d 893, 950 [2003] [CFE II]), where she pointed out “[t]he risks inherent in” CFE F s “novel approach to constitutional adjudication.” But CFE I decided that lawsuits like this one can be brought.
If CFE I is accepted as good law, the State’s arguments for dismissing this complaint cannot succeed. Indeed, those arguments seem to me very weak. The State’s brief contains two points, the first saying that in light of recent legislation relating to school funding it would be “imprudent” for the courts to entertain the case, and the second saying the case is barred by “traditional principles of mootness and ripeness.” I know of no warrant for rejecting a claim to vindicate a recognized constitutional right on the ground of imprudence. And the case is obviously neither moot nor unripe. A moot case is one in which nothing turns on the result—but if plaintiffs prevail here, large sums of taxpayer money would be directed to the public schools of their districts. And if plaintiffs, the parents of children in those public schools, are constitutionally entitled to have this money spent on their children’s educations, they are entitled to it now. They would be rightly dismayed to learn that their claims will not ripen for several years, until after their children have graduated.
I can only understand the State’s arguments here as implicitly inviting us to abandon CFE I. Despite the views I have *909expressed, I do not believe we should now accept the invitation. The worst fears of Judges Simons and Read, as expressed in their CFE I and CFE II dissents, have not yet come true, and perhaps never will. In CFE III (Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14 [2006]), we adhered to CFE I and CFE II, but made clear that in applying those precedents we will show great deference to executive and legislative choices as to how much money to put into public schools, and how to allocate that money. A similar trend has appeared in some other states in which school funding issues have been constitutionalized: those states have not repudiated their earlier decisions, but have interpreted them to leave broad scope for choices made by the executive and legislative branches (see Hancock v Commissioner of Educ., 443 Mass 428, 822 NE2d 1134 [2005]; Montoy v State, 282 Kan 9, 138 P3d 755 [2006]; Londonderry School Dist. SAU #12 v State, 157 NH 734, 958 A2d 930 [2008]).
Thus it is not clear to me that we cannot live with the CFE I decision. I must add that it is also not clear to me that we can. I take heart, however, from the fact that we have so far not set out upon a road like that traveled by New Jersey, where school funding litigation is now in its fifth decade (see Robinson v Cahill, 118 NJ Super 223, 287 A2d 187 [Law Div 1972], mod 62 NJ 473, 303 A2d 273 [1973]; Education Law Ctr. ex rel. Abbott v Burke School Children v New Jersey Dept. of Educ., 2012 WL 1080867, 2012 NJ Super Unpub LEXIS 732 [App Div Apr. 3, 2012]).