ALBANY – Lawyers for the state are making a last-ditch effort to head off a court order to spend billions more on New York City’s schools, arguing that the courts cannot force the governor and the Legislature to budget a specific amount for education.

In briefs submitted late yesterday, lawyers from the attorney general’s office, representing Governor Pataki, urged the judge overseeing the case to issue a “declaratory judgment” – essentially, a statement of what it will cost for the city schools to provide an adequate education – and let lawmakers determine how to deliver the money.

The state’s lawyers did not recommend a dollar amount, but rejected as too high the proposal from a court-appointed panel that called for increasing operating funds for the city schools by $5.6 billion, or 45%, over the next four years, plus $9.2 billion for capital costs.

The Pataki administration is trying to avoid the court order requested by the plaintiffs in the lawsuit, which would require the state to provide the billions recommended by the panel – and levy fines of $4.2 million a day if it fails to comply.

With the state facing a $6 billion deficit in the coming fiscal year, such a ruling would add to the pressure on state lawmakers either to raise taxes or cut spending on health care, transportation, and other programs.

Lawyers from the office of Attorney General Eliot Spitzer, who are representing the governor in the case, argued that requiring the state to spend money and threatening it with fines would violate the constitution.

“There is no precedent in New York for any court directly ordering the expenditure of funds,” the state’s brief said. “Such an order would be antithetical to the notion of separation of powers, one of the cornerstones of the democratic governments of both our nation and its states.”

The counsel for the plaintiffs, Michael Rebell of the Campaign for Fiscal Equity, called this argument “the last resort of all government defendants who are on the losing end of these kinds of cases.”

“To argue separation of powers – when the Court of Appeals bent over backwards to give them a lot of time and discretion and leeway, and they did nothing – is just a desperate argument,” he said. “The court would not interfere if they had done what they were supposed to do.”

Mr. Rebell said a declaratory judgment would not be acceptable to his group, which launched the lawsuit a decade ago and won a landmark ruling from the state’s highest court.

“At this point we think the court should issue a very clear order,” he said. “And if the state doesn’t comply within 90 days, they should be sanctioned.”

The CFE’s lawsuit argued that the New York City schools, with their low test scores and high dropout rates, are not providing the “sound basic education” mandated by the state constitution, and blamed the situation on a chronic shortage of money. In June 2003, the Court of Appeals upheld the lawsuit and ordered the governor and the Legislature to come up with a plan for increasing aid to the city schools by July 2004. When lawmakers failed to compromise by that deadline, the judge supervising the case, Leland DeGrasse of the state Supreme Court at Manhattan, appointed a three-lawyer panel to propose a compliance plan. He is expected to issue an order based on that plan later this month.

The lawsuit enjoys the support of Mayor Bloomberg and other city politicians, along with some members of the state Legislature who favor increasing education aid statewide. Other law makers resent having the courts dictate budgetary choices to the Legislature, and fear the ruling could bankrupt the state.

Mr. Pataki, a Republican, has opposed the suit throughout his 10 years in office, arguing that mismanagement, not poor funding, accounts for the problems in the city schools. He has noted that they already spend about $11,000 a student, more than any other big-city district.

The governor’s attorney in the case is Mr. Spitzer, a Democrat who recently declared that he will seek to replace Mr. Pataki as governor in 2006. The attorney general, who has a duty to defend the state against all lawsuits, has not publicly discussed his personal position on the merits of the case.

In their briefs, the state’s attorneys took issue with many findings of the panel appointed by Judge DeGrasse.

They said the panel improperly adjusted upward the dollar estimates from consultants hired by the governor, disregarded funding increases and other reforms implemented since the lawsuit was argued, left out accountability measures to make sure the new money is well spent, and unnecessarily called for the funding increase to be delivered within four years rather than five.

“The panel’s decision would award more money, more quickly, than it could be efficiently spent,” the brief said.

The brief also faulted the panel’s recommendation on capital funding, saying it would be unwise to send the city $9.2 billion over five years without a detailed plan for spending it on construction and renovation of schools.

“If the panel’s recommendation were adopted, the city would hold these amounts for no immediate identified purpose on the assumption that it would at some undetermined future time design and bid specific projects, and would then apply the money solely to those projects,” the state’s brief said. “Such an approach would be completely contrary to the manner in which capital funding programs work.”