For the order -- Chief Justice Hughes, Justices Sullivan, Pashman and Schreiber and Judge Conford. Against the order -- Justices Mountain and Clifford. The opinion of the Court was delivered by Hughes, C.J. Pashman, J. (concurring in part only and dissenting). Mountain and Clifford, JJ. (dissenting).
[69 NJ Page 139] The Court has now come face to face with a constitutional exigency involving, on a level of plain, stark and unmistakable reality, the constitutional obligation of the Court to act. Having previously identified a profound violation of constitutional right, based upon default
in a legislative obligation imposed by the organic law in the plainest of terms,*fn1 we have more than once stayed our hand, with appropriate respect for the province of other Branches of government. In final alternative, we must now proceed to enforce the constitutional right involved.
The compulsion upon the Court to act in the present state of affairs is evident:
The people's constitutional reposition of power always carries with it a mandate for the full and responsible use of that power. When the organic law reposes legislative power in that branch, for instance, it is expected that such power will be used, lest it wither and leave the vacuum of a constitutional exigency, requiring another branch (however reluctantly) to exercise, or project the exercise of, that unused power for the necessary vindication of the constitutional rights of the people. Robinson v. Cahill, 62 N.J. 473 (1973), cert. den. sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219; Jackman v. Bodine, 43 N.J. 453 (1964); Asbury Park Press, Inc. v. Woolley, 33 N.J. 1 (1960). [ American Trial Lawyers v. N.J. Supreme Ct., 66 N.J. 258, 263]
In Robinson v. Cahill, 62 N.J. 473 (1973), we held violative of the Education Clause of the Constitution the existing system of education provided public school children in this State. We construed the Constitution basically to command that the State afford "an equal educational opportunity for children" (Id. at 513), however the burden of doing so would be distributed and borne,*fn2 and we agreed
with the determination of Judge Botter (118 N.J. Super. 223, 119 N.J. Super. 40 (Law Div. 1972)) that "the constitutional demand had not been met * * *" on the basis of gross "discrepancies in dollar input [expenditure] per pupil." 62 N.J. at 515. We so ruled because dollar input was "plainly relevant and because we [had] been shown no other viable criterion for measuring compliance with the constitutional mandate." Id. at 515-16.*fn3
Thus we considered as the principal cause of the constitutional deficiency the substantial reliance (under our present system of financing education) upon local taxation, entailing as it does "discordant correlations between the educational needs of the school districts and their respective tax bases." Id. at 520.
Nevertheless, although we expressed doubt that the Constitution could be satisfied "by reliance upon local taxation"
(Id. at 520), we did not foreclose that possibility. We indicated that the State could meet its obligation by financing education either on a statewide basis, with funds provided by the State, or, in whole or in part, by delegating the fiscal obligation to local taxation. Id. at 509-13. Should it choose the latter alternative, however, it would be incumbent upon the State, either legislatively or administratively "to define * * * the educational obligation and * * * compel the local school districts to raise the money necessary to provide that [equal educational] opportunity." Id. at 519 (emphasis in the original). If local government fails in that endeavor "the State must itself meet its continuing obligation." Id. at 513. The State aid plan under the current statute, N.J.S.A. 18A:58-4 (L. 1970, c. 234, hereafter the 1970 Act), was found inadequate because "not demonstrably designed to guarantee that local effort plus the State aid will yield to all the pupils in the State that level of educational opportunity which the * * * [Constitution] mandates." Id. at 519.
We concluded our opinion by ruling that relief would be prospective in nature, and we invited argument as to whether, pending legislative action, the judiciary could properly order redistribution of "minimum support" and "saveharmless" aid, infra, differently from the provisions of existing law, in furtherance of the constitutional imperative as the trial court had directed. Id. at 520-21; see 118 N.J. Super. at 280-81.
After hearing the parties and the amici (and pausing in deference to the doctrine of separation of powers in government), we decided that the statutory scheme would not be disturbed unless the Legislature failed by December 31, 1974, to enact legislation compatible with the Constitution and to be effective as of July 1, 1975. Robinson v. Cahill, 63 N.J. 196, 198 (1973). We withheld a ruling as to whether, if such legislation were not adopted, "the Court [might] order the distribution of appropriated moneys
toward a constitutional objective notwithstanding the legislative directions." Id.
Despite considerable efforts by both the Executive and Legislative Branches, no legislation was adopted by December 31, 1974, nor has been to date, although such efforts, it is asserted, continue.
Numerous motions for intervention and for relief and directions by the Court were filed by various parties both before and after December 31, 1974. On January 23, 1975, we entered an order denying all motions for relief or directions and making appropriate provision for hearing certain petitioners for intervention as amici curiae. We decided that in view of the time-exigency (and with continued deference to the separation of powers, we must note) the Court would not disturb the present statutory scheme for the school year 1975-1976 but would receive further briefs and hear argument on March 18, 1975, concerning appropriate remedial action by the Court in various suggested particulars in relation to the school year 1976-1977 and subsequent years, looking to a "final determination as to remedies" by the Court in sufficient time to apprise each district by October 1, 1975, what the "State aid situation will be as to it, so far as practicable, for the school year 1976-77."
We have received and carefully considered numerous briefs and exhibits and have heard extensive arguments. It is unnecessary for purposes of our present disposition of the matter to outline in any detail all the positions taken. They range from pleas by representatives of the General Assembly and the Senate that the Court continue to stay its hand, on the postulate that a solution of the constitutional problem is exclusively for the Legislature and will one day be achieved by it, to diverse proposals for the present adjudication by this Court of all the substantive components of a thorough and efficient education and the financing thereof. They include proposals (which are somewhat varied in nature) by plaintiffs and by the Governor
of the State for redistribution of existing State aid for at least the school year 1976-1977 (in furtherance of the constitutional objective) pending legislative action. And they variously support or criticize guidelines proposed by the State Department of Education and recently published in 7 New Jersey Register 132 (April 1975), for the attainment by school districts of the goals of a thorough and efficient education.
Much of the material submitted by the parties and amici has been helpful to the Court, and was invited by the broad terms of the order of January 23, 1975. However, upon thorough deliberation on the matter, we have concluded that our present disposition should not extend beyond the delineation of a provisional remedy for the school year 1976-1977 should the other Branches of government fail to devise and enact a constitutional system of education in time for its effectuation for that school year.*fn4
We do not now go further for several reasons. We continue to be hesitant in our intrusion into the legislative process, forced only so far as demonstrably required to meet the constitutional exigency. As well, it would be premature and inappropriate for the Court at the present posture of this complex matter to undertake, a priori, a comprehensive blueprint for "thorough and efficient" education, and seek to impose it upon the other Branches of government. Courts customarily forbear the specification of legislative detail, as distinguished from their obligations to judge the constitutionality thereof, until after promulgation by the appropriate
authority. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). We have been as explicit as we reasonably could as to the nature of the constitutional deficiencies seen to exist in the present system. There is no responsible dissent from the view that implementation of the constitutional command is peculiarly a matter for the judgment of the Legislature and the expertise of the Executive Department. In other words, the Court's function is to appraise compliance with the Constitution, not to legislate an educational system, at least if that can in any way be avoided. We have measured and found wanting the existing scheme. No other is yet before us for adjudication.
Nor can we adjudicate on a piecemeal or hypothetical basis. The validity of the tentative guidelines recently published by the Department of Education cannot now be passed upon, inchoate and hortatory in nature as they are. They would have to be considered in context with such legislative provision as may be enacted for their fiscal implementation, unless the judgment of this Court is likewise to be only hortatory and futile in that sense.
Moreover, as already indicated, our opinion in Robinson, supra, 62 N.J. 473, noted the broad options open to the Legislature in discharging the constitutional requirement. Subject to the caveats there noted and here repeated, the selection of the means to be employed belongs to the other Branches of government, unimpeachable so long as compatible with the Constitution. See, A. & B. Auto Stores of Jones St., Inc. v. Newark, 59 N.J. 5 (1971); Ind. Elec. Assoc. of N.J. v. N.J. Bd. of Exam, 54 N.J. 466 (1969); Burton v. Sills, 53 N.J. 86 (1968); N.J. Chapt., Am. I.P. v. N.J. State Bd. of Prof. Planners, 48 N.J. 581 (1967); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199 (1960).
We take this occasion to state our approval of the ongoing efforts of the Department of Education to establish
the components of a thorough and efficient system of education by formulation of standards, goals and guidelines by which the school districts and the Department may in collaboration improve the quality of the educational opportunity offered all school children. We assume that these efforts will move forward through the administrative process to a finality, and that the State, through the Commissioner of Education, will see to the prompt implementation of the standards, so determined, in the field. We would further expect that any problem attendant upon undue burdens on particular districts, in conforming to such standards, will have legislative attention. But by these comments we intend no present implication that any method of financing for the purposes stated, which would leave the present system of defraying the expense of education susbtantially unaltered, could fulfill the "thorough and efficient" constitutional norm.
What we have already said is not, of course, to imply that the provisional remedy for the year 1976-1977 we hereinafter order represents our concept of the full reach of our power, duty or responsibility in effectuating the promise of the Constitution to the school children of the State should the other Branches delay action beyond availability of a remedy in time for the school year 1977-1978. Nor does it at all imply compliance by itself with the constitutional standards. We reserve such questions for the appropriate occasion, which hopefully will not occur.
We thus turn to the question of an appropriate contingent or provisional remedy for at least the school year 1976-1977. We forthwith reject the submission that we should do nothing. It is past three years since the system was held unconstitutional in the Law Division. Our position that the court would act at least for 1976-1977 was implicit in the January 23, 1975, order. The need for immediate and affirmative judicial action at this juncture is apparent, when one considers the confrontation existing between
legislative action, or inaction, and constitutional right. When there occurs such a legislative transgression of a "right guaranteed to a citizen, final decision as to the invalidity of such action must rest exclusively with the courts. It cannot be forgotten that ours is a government of laws and not of men, and that the judicial department has imposed upon it the solemn duty to interpret the laws in the last resort. However delicate that duty may be, we are not at liberty to surrender, or ignore, or to waive it." Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 12 (1960). We have mentioned inaction as well as action in importing constitutional violation, for as stated by Justice Proctor in Cooper v. Nutley Sun Printing Co., Inc., 36 N.J. 189, 196 (1961) (adverting to the opinion of Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 163, 2 L. Ed. 60, 69 (1803)):
If then, the right of children to a thorough and efficient system of education is a fundamental right guaranteed by the Constitution, as we have already determined, it follows that the court must "afford an appropriate remedy to redress a violation of those rights. To find otherwise would be to say that our Constitution embodies rights in a vacuum, existing only on paper." Cooper v. Nutley Sun Printing Co., Inc., supra, at 197.
We have given serious consideration to the idea of enjoining all State aid under the present unconstitutional system. That recourse would simplify the weighty problem of judicial power, as there is a concession by all that the Court may, and ordinarily should, enjoin the administration of a patently unconstitutional plan. But we are convinced that so radical a curtailment of obviously essential
State assistance to the school districts and its consequent harmful impact on vital educational programs, even if only for one provisional year, is not justified at this time in the light of all pertinent considerations.
The provisional remedy for the school year 1976-1977 we have decided upon follows, in principle if not in scope, the proposal for redistribution of State aid funds advocated before us by the Governor. The Governor's plan, presented as "the appropriate next step in this significant interchange between coordinate branches," would enjoin the present statutory distribution and distribute to the school districts more conformably to the constitutional norm the following categories of State aid funds:
1. Minimum support aid (N.J.S.A. 18A:58-5, subd. a) ($234,000,000 as of 1974-1975);
2. Save-harmless funds (N.J.S.A. 18A:58-18.1) ($7,600,000 as of 1974-1975);
3. Building aid, foundation program (N.J.S.A. 18A:58-23, 24) ($27,000,000 as of 1974-1975);
4. Atypical pupils aid (N.J.S.A. 18A:58-6) ($64,000,000 as of 1974-1975);
5. Transportation aid (N.J.S.A. 18A:58-7) ($46,000,000 as of 1974-1975);
6. Pension fund contributions by the State (N.J.S.A. 18A:66-1 et seq.) ($172,000,000 as of 1974-1975).
These items aggregate about $550,000,000 at the 1974-1975 level of appropriations. Under the proposed State budget for 1975-1976 those items would, for that year, total about $585,000,00. What they will amount to for 1976-1977 is not yet known. Minimum support aid provided in 1975-1976 $150 per resident weighted pupil in operating districts. Save-harmless aid assures every district no less aid for current expenses and building costs than it received in the school year 1972-1973. The titles of the other aid categories are self-explanatory. It is estimated that minimum support aid for 1976-1977 would approximate $165 per pupil.
The Governor proposes redistribution of all such funds in accordance with the incentive equalization aid formula of the relevant sections of the 1970 Act (N.J.S.A. 18A:58-5, subd. b. 6.3), the operation of which was described in our prior opinion. 62 N.J. at 517-18. Essentially, that formula fixes a "guaranteed" equalized assessed valuation per weighted pupil (currently $43,000), and if the school district's actual corresponding valuations per pupil multiplied by the number of pupils there resident is less than the guaranteed valuations per pupil multiplied by the same number, the district receives State aid to the extent of the difference, multiplied by the net operating school tax rate. If the actual valuations are more than the guaranteed valuations no formula aid is given.
The Governor's position (and to this extent plaintiffs agree) is that the six categories of State aid enumerated, as presently distributed, are not compatible with the Robinson criterion of equality of educational resources for the pupils, whereas the incentive equalization formula is. He therefore urges that the whole be redistributed solely on the basis of the latter formula. Rough calculations offered on his behalf prior to argument purported to indicate that if applied for the year 1975-1976, this would have lifted the guaranteed valuation rate per pupil from the then existing $43,000, to a figure ranging from $66,000 to $72,000, depending upon the amount of appropriations for that year. If applied for the year 1976-1977 the figure would be larger because of increasing budgets and equalized valuations.
We are in accord with the Governor and plaintiffs as to the effect of redistribution of minimum support and save-harmless aid in accordance with the 1970 incentive equalization aid formula in tending to subserve the goal of equality of educational opportunity. The two named items leave existing arbitrary ratios of tax resources per pupil unaffected. The formula, on the other hand, in effect places all districts whose actual equalized valuations are below the guarantee-level
on the same per-pupil basis in respect of supporting tax resources. The higher the guarantee-level the more districts come under the umbrella of such equality. Since reallocating minimum support and save-harmless funds to formula aid purposes does lift the guarantee-level, equality of supporting resources per-pupil is fostered in that way.
We think, however, that the merits of the attack upon the relevance of items 3, 4 and 5 mentioned above to permissible constitutional standards is not as manifest, if sustainable at all, as in the case of minimum support and save-harmless aid. As to pension contribution aid, while this shares the asserted and justified characterization of the last mentioned items, we conclude that redistribution thereof at this juncture would be inadvisable. We believe there would be substantial legal and administrative confusion as to where responsibility would lie for raising employers' pension contributions under existing legislation if the legislative appropriations for that purpose were enjoined, not to mention risks to the solvency of the Teachers' Pension and Annuity Fund. Teacher and pensioner morale is a pertinent factor for consideration.
It is our order, consequently, that for the school year 1976-1977, in the contingency aforestated, minimum support aid and save-harmless funds shall not be disbursed as provided under the existing statutes, but shall be distributed in accordance with the incentive equalization aid formula of the 1970 Act. It is estimated these funds will approximate $300,000,000. According to calculations furnished us by the Department of Education, this should result, for the year stated, in guaranteed equalized valuations per weighted pupil of about $67,000.
We are not insensitive to the earnest pleas of those municipalities which will be disadvantaged by the redistribution here ordered because they have actual equalized valuations per pupil exceeding the prospective guaranteed valuations, yet are burdened by school populations requiring more than
average expenditures per pupil and perhaps some degree of extraordinary non-school burden (municipal overburden). The Department of Education has furnished us and the parties with a schedule of the respective gains and losses for 1976-1977 of the redistribution here ordered, and we have carefully weighed its effect. We have given consideration to a variety of possible adjustment factors, such as for municipal overburden, which might be applied to render this redistribution more theoretically equitable. Having regard to the urgent necessity of announcing our disposition at the earliest date possible, and the debatability, complexity and uncertainty in effect of any adjustment factor which might be so considered, we have foregone efforts at refinement of the approach selected.
Study of the figures discloses a broad range of correlation between the gaining districts and districts having higher than statewide average school and general tax rates (equalized); vice versa as to the losing districts. (Concededly, these correlations are not invariably uniform.) Similarly, the gaining districts are generally the more urban areas, particularly afflicted by municipal overburden, and the rural districts, obviously ratables-poor. The remedy we apply is only for one year, and however short of a perfect plan, is at least attainable and a positive step toward the end result of full constitutional compliance. In any case, it is to be kept constantly in mind that our order may be averted by timely and adequate legislative and administrative action.
In sum, the present disposition represents our best present judgment as to an appropriate provisional and interim accommodation of the interests of the other Branches in their right to try to achieve accomplishment of the mutually desired constitutional remedy, of the interests of the school districts in providing adequate education in the meantime for their pupils, and of the solemn duty of this Court to enforce the Constitution.
In opposition to such action by the Court as thus ordered, it has been urged upon us on behalf ...