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Robinson v. Cahill

Decided: January 30, 1976.

KENNETH ROBINSON, AN INFANT BY HIS PARENT AND GUARDIAN AD LITEM, ERNESTINE ROBINSON, ET AL. PLAINTIFFS-RESPONDENTS,
v.
WILLIAM T. CAHILL, GOVERNOR OF THE STATE OF NEW JERSEY, ET AL. DEFENDANTS-APPELLANTS



Concurring -- Chief Justice Hughes and Justices Sullivan, Clifford and Schreiber. Concurring in part -- Justice Mountain and Judge Conford. Dissenting -- Justice Pashman. Hughes, C.J. (concurring). Schreiber, J. (concurring). Conford, P.J.A.D., Temporarily Assigned (concurring and dissenting). Pashman, J. (dissenting).

Per Curiam

[69 NJ Page 454] The earlier history of this protracted litigation appears elsewhere in our reports.*fn1 It need not be restated here. On September 29, 1975, there was enacted into law a statute known as the Public School Education Act of 1975, c. 212, L. 1975, N.J.S.A. 18A:7A-1 et seq.). Immediately following its passage, motions were addressed to this Court by a number of different parties in the cause. The various forms of relief sought by these motions all implicated one underlying issue: was or was not the Act of 1975 constitutional? We hesitated to entertain the motions. No lower court determination of this underlying issue was before us for review; the parties had had no opportunity to avail themselves of an evidentiary hearing at which a record could be made; a judgment by us might savour somewhat of an advisory opinion. These considerations, however, were felt to be outweighed by the desirability of reaching a speedy decision as to the constitutionality of the enactment -- at least when examined facially.*fn2 We thought it would

be possible -- and if so, highly desirable -- to decide at once whether the statute, on its face, did or did not meet constitutional requirements. Parenthetically, we note that whether it may or may not pass constitutional muster as applied in the future to any individual school district at any particular time, must quite obviously await the event. Only in the factual context then presented and in the light of circumstances as they may then appear could such a determination be made.

Accordingly we address ourselves to the issue as to whether, on its face, the 1975 Act is or is not constitutional.

I

It is, initially, of vital importance to note that this is the first time in the course of this litigation that we have had an opportunity to consider a plan intended to meet all aspects of a thorough and efficient education. Robinson I, as the opening sentence of the opinion makes clear, involved only "the constitutionality of statutes providing for the financing of elementary and secondary schools." [62 N.J. 473, 480; emphasis supplied]. It is of course true that the opinion says much that bears significantly upon aspects of the problem of public education other than the fiscal one. And although we have not hitherto been asked to examine the adequacy of the educational system in this State in other than financial terms, we have been constantly mindful that money is only one of a number of elements that must be studied in giving definition and content to the constitutional promise of a thorough and efficient education. Thus in Robinson IV we said,

[A] multitude of other [non-fiscal] factors play a vital role in the educational result -- to name a few, individual and group disadvantages, use of compensatory techniques for the disadvantaged and handicapped, variation in availability of qualified teachers in different areas, effectiveness in teaching methods and evaluation thereof, professionalism at every level of the system, meaningful curricula, exercise of authority and discipline, and adequacy of overall goals fixed at the policy level. [69 N.J. 133, 141]

We are now called upon to examine a legislative proposal that at once seeks to define the constitutional promise, identify the components of which it consists, establish a procedural mechanism for its implementation and afford the financial means necessary for its fulfillment. We approach our analysis having in mind the presumption of validity which accompanies the legislative act.

II

In Robinson I we pointed out that the State had never defined or spelled out the content of the educational opportunity required by the Constitution, and we indicated that this must be done so that "in some discernible way" the scope of this obligation would be made apparent. 62 N.J. at 516, 519. This, as we have noted, the Legislature has now undertaken to do. The goal of a thorough and efficient education and the principal elements of which it must consist are explicitly stated:

The goal of a thorough and efficient system of free public schools shall be to provide to all children in New Jersey, regardless of socioeconomic status or geographic location, the educational opportunity which will prepare them to function politically, economically and socially in a democratic society. [ N.J.S.A. 18A:7A-4]

A thorough and efficient system of free public schools shall include the following major elements, which shall serve as guidelines for the achievement of the legislative goal and the implementation of this act:

a. Establishment of educational goals at both the State and local levels;

b. Encouragement of public involvement in the establishment of educational goals;

c. Instruction intended to produce the attainment of reasonable levels of proficiency in the basic communications and computational skills;

d. A breadth of program offerings designed to develop the individual talents and abilities of pupils;

e. Programs and supportive services for all pupils especially those who are educationally disadvantaged or who have special educational needs;

f. Adequately equipped, sanitary and secure physical facilities and adequate materials and supplies;

g. Qualified instructional and other personnel;

h. Efficient administrative procedures;

i. An adequate State program of research and development; and

j. Evaluation and monitoring programs at both the State and local levels. [ N.J.S.A. 18A:7A-5]

To the "major elements" listed above should be added the requisite of sufficient fiscal support. Perhaps this is implied in what is quoted above. In any event it is dealt with at length in a later portion of the statute*fn3 and is discussed below.

Together with these legislative statements of educational aims and of the ingredients of which a thorough and efficient education must consist, attention should be directed to one of the findings appearing in a prefatory portion of the Act. This reads as follows:

Because the sufficiency of education is a growing and evolving concept, the definition of a thorough and efficient system of education and the delineation of all the factors necessary to be included therein, depend upon the economic, historical, social and cultural context in which that education is delivered. The Legislature must, nevertheless, make explicit provision for the design of State and local systems by which such education is delivered, and should, therefore, explicitly provide after 4 years from the effective date of this act for a major and comprehensive evaluation of both the State and local systems, and the sufficiency of education provided thereby; [ N.J.S.A. 18A:7A-2, subd. a(4)]

This statement reveals a perceptive recognition on the part of the Legislature of the constantly evolving nature of the

concept being considered. It manifests an awareness that what seems sufficient today may be proved inadequate tomorrow, and even more importantly that only in the light of experience can one ever come to know whether a particular program is achieving the desired end.

While the Constitution squarely places the responsibility for the maintenance and support of free public schools upon the Legislature, the administrative aspect of this obligation has in fact historically been delegated in large part to a system of local school districts, operating chiefly through local school boards. Furthermore the fiscal aspect of the obligation has long been met in significant part by taxes raised by these same districts. All of this is well known and discussed at length in Robinson I, 62 N.J. at 505-12. This sharing of the financial responsibility as between the State and these local districts was there held to be constitutionally permissible. 62 N.J. at 510. The Act of 1975 continues this plan of large delegated responsibility with the resultant sharing of administrative duties and fiscal support.

In furtherance of the Legislature's obvious commitment to the belief that a sound educational system will be more or less constantly changing and growing, provision is made in the Act for a rather elaborate monitoring arrangement. The responsibilities are here again shared by State and local authorities. N.J.S.A. 18A:7A-8 to 12. We draw especial attention to N.J.S.A. 18A:7A-10, which reads as follows:

For the purpose of evaluating the thoroughness and efficiency of all the public schools of the State, the commissioner, with the approval of the State board and after review by the Joint Committee on the Public Schools, shall develop and administer a uniform, Statewide system for evaluating the performance of each school. Such a system shall be based in part on annual testing for achievement in basic skill areas, and in part on such other means as the commissioner deems proper in order to (a) determine pupil status and needs, (b) ensure pupil progress, and (c) assess the degree to which the educational objectives have been achieved. [Emphasis supplied]

This is an important and potentially far-reaching provision. It recognizes that in seeking to achieve educational excellence and in attempting to gauge the success of any such effort, each school district must be examined as a separate unit. As we have seen above, the Legislature has enumerated the components of which it believes a thorough and efficient education must consist, these, including implementation at the local level, N.J.S.A. 18A:7A-7, to be used as guidelines for the achievement of the legislative goal. In thus providing that local boards shall establish particular educational goals, objectives and standards, and that the system of monitoring and evaluation shall treat school districts as individual units, the Legislature is implicitly acknowledging the diversity that will inevitably exist among these separate establishments. The configuration of the components mentioned above, considered both qualitatively and quantitatively, that will produce a sufficiently fine educational opportunity in one district, will inevitably be different from that required in others. Not alone for this reason, we think that the legislative provisions for evaluating achievement -- here set forth in broad outline -- have been well and thoughtfully formulated.

Crucial to the success of the legislative plan, as well as to the argument that the statute is facially constitutional, are three particular sections of the Act: N.J.S.A. 18A:7A-14, 15 and 16. These provisions allocate to the Commissioner of Education and to the State Board of Education a two-fold continuing responsibility: first, to maintain a constant awareness of what elements at any particular time find place in a thorough and efficient system of education, as this concept evolves through the inevitably changing forms that it will take in the years to come; second, to insure that there be ever present, sufficiently competent and dedicated personnel, adequately equipped, to guarantee functional implementation, so that over the years and throughout the State each pupil shall be offered an equal opportunity

to receive an education of such excellence as will meet the constitutional standard.

Pursuant to this allocation of responsibility, the Commissioner is required to review the results of the monitoring and evaluation system mentioned above. Upon detecting an inadequacy he must direct the local board of education to prepare forthwith a plan designed to correct and remedy the failure that has been identified. Such plan will be submitted to him for approval. If approved, the plan will be implemented "in a timely and effective manner." N.J.S.A. 18A:7A-14. Should the proposal not be approved, the Commissioner is directed to order the local board to show cause why there should not be a plenary hearing held before him to determine whether or not corrective action is necessary. If such a hearing is held, and the Commissioner decides that in fact such action is needed, he is then authorized "to order necessary budget changes within the school district," or "in-service training programs for teachers and other school personnel, or both." N.J.S.A. 18A:7A-15. If these steps in turn prove insufficient, the Commissioner may then formally bring the matter to the attention of the State Board in order that it may take further action. The statutory power and obligation of the Board upon such an occasion is stated thus:

The State board, on determining that the school district is not providing a thorough and efficient education, notwithstanding any other provision of law to the contrary, shall have the power to issue an administrative order specifying a remedial plan to the local board of education, which plan may include budgetary changes or other measures the State board determines to be appropriate. [ N.J.S.A. 18A:7A-15]

Should the local board fail or refuse to comply with such an administrative order, then the State Board shall apply to the Superior Court by action in lieu of prerogative writ for an order directing such compliance.

What we have said may be summarized. The Constitution imposes upon the Legislature the obligation to ". . . provide

for the maintenance and support of a thorough and efficient system of free public schools . . . ." The imposition of this duty of course carries with it such power as may be needed to fulfill the obligation. The statutory language quoted and discussed above constitutes a delegation of this power to the State Commissioner of Education as well as to the State Board of Education to see that the constitutional mandate is met. They have, for this purpose, been made legislative agents. They have received a vast grant of power and upon them has been placed a great and ongoing responsibility.

It has been suggested that the power, given both to the Commissioner and to the State Board of Education, to direct "budgetary changes" does not include the power to compel an increase in a local school budget above that fixed by the local authorities. We cannot accept this limitation; to do so would be to emasculate, perhaps fatally, what we believe to have been the legislative scheme. It would thwart the State Board's authority to compel a local district to meet the financial commitments necessary to satisfy the thorough and efficient standards. Cases such as Board of Education, East Brunswick Township v. Township Council, East Brunswick Township, 48 N.J. 94 (1966) and Board of Education of Elizabeth v. City Council of Elizabeth, 55 N.J. 501 (1970) are readily distinguishable. In those cases we examined, respectively, Type I and Type II school districts (N.J.S.A. 18A:9-2 and 3), and in each case suggested -- although the point was not really argued in either suit -- that the budget determination reached by the Commissioner should not exceed what had been first fixed by the local board of education. But these cases are in no event controlling precedents as to the matter now before the Court. They dealt with the problem of fixing and adopting the school budget for a particular year. In such cases the Commissioner acts somewhat as an arbitrator reviewing competing claims. Depending upon the type of district involved, he may be called upon to evaluate the conflicting

claims and assertions of the local board of education, the municipal governing body, the board of school estimate and the voters of the school district. He is required to act speedily; there is little time for deliberation.

On the other hand, under the Act of 1975 the Commissioner does not in any sense stand as an arbitrator among local groups, nor does he wait for the matter to be presented to him. Directly or indirectly, he is the initiator. His study and review of the results of the tests and other monitoring procedures that are prescribed, and his consequent action pursuant to such study and review are vastly different from the task he undertakes in putting into final form the terms of an annual budget. These are separate and quite distinct responsibilities that have been allocated to the Commissioner. They call upon him to follow quite separate procedures. For example, his function under the new Act is by no means confined to budget analysis. A failure to meet minimal educational standards may, perhaps more often than not, lie elsewhere than in matters of finance. Thus the Commissioner's study and review are not to be confined to a school district's financial support. There must also be included a consideration of the other elements set forth by the Legislature in N.J.S.A. 18A:7A-5. Account must be taken, as well, of such other factors as may from time to time emerge and assume significance as the result of ongoing study and further experience. But where it is clear that an inadequacy stems from a failure of fiscal resources, then the power given the Commissioner and the State Board to effect changes in local budgets does include the power to increase such budgets beyond the amounts locally determined. Such power must of course be wisely exercised and any such exercise will always be subject to judicial review, but there is no doubt that under the terms of the Act of 1975 such power exists.

This grant of power is responsive to Robinson I, where we pointed out that if the State chose, either in whole or in part, to assign its constitutional obligation to local government,

it must then afford some mechanism by which local school districts could be compelled to raise the necessary funds. 62 N.J. at 513, 519. The present enactment, as we interpret it, makes adequate provision to meet this requirement. State v. Zito, 54 N.J. 206, 218 (1969).

III.

This brings us to a consideration of the portion of the Act dealing with state school aid, N.J.S.A. 18A:7A-17 et seq. As we sought to emphasize at the beginning of this opinion, unlike the previous occasions during the course of this litigation when this issue has been presented, it is now before us in the context of a full and complete plan designed to provide a thorough and efficient education. Accordingly the state school aid provisions embodied in this Act must be considered, not in comparative isolation, but as a part of the whole proposal formulated by the Legislature. The components of this proposal that are most significant for this purpose are these:

1. What is meant by a thorough and efficient education has now been defined; the goal of such an education has been stated; the elements of which it is to consist have been enumerated.

2. The Legislature has chosen to continue to share fiscal as well as administrative responsibilities with local school districts.

3. Provision has been made for an elaborate system of continuous monitoring and evaluation.

4. The results of this process of evaluation are to be studied and reviewed by the Commissioner, treating the school districts as separate entities, in order to detect any inadequacies or failures.

5. The Commissioner, in coordination with the State Board of Education, is empowered to take all necessary steps to correct such defects, including, where necessary, the increase in amount of local budgets.

The fiscal provisions of the Act are to be judged as adequate or inadequate depending upon whether they do or do not afford sufficient financial support for the system of public education that will emerge from the implementation of the plant set forth in the statute. We are no longer considering the needs of the public system as it existed before the 1975 Act. We assume the Legislature had this in mind when preparing the state aid clauses of this statute.

This fiscal aid generally falls into three categories. The State is to bear the cost of categorical programs which consist of financial support for pupils who fall into special groups such as visually and auditorially handicapped, neurologically impaired, or emotionally disturbed. Aid is based on a per pupil weighted basis. Transportation costs for students who live beyond specified distances from school are to be paid in full by the State. Lastly, the State must pay each school district certain equalization support for its current expenses. The amount of support paid varies depending in part on the relationship of the assessed valuation of the local school district to the State average assessed valuations of all school districts, the general effect being to bring up districts with less than the average nearer to that level.

Each of these financial supports reflect legislative recognition that the "discordant correlations between the educational needs of the school districts and their respective tax bases", 62 N.J. at 520, could not be met by exclusive reliance upon local taxation. We cannot say that under these circumstances the dollar input per pupil, keeping in mind that there may be and probably are legitimate differences between and among districts and students, will not be sufficient to offer each pupil an equal educational opportunity as required by the Constitution.

We do foresee a pattern of perhaps quite considerable change coming about as the procedures of this new legislation are brought to bear upon the system as a whole. How much state aid will be needed in any particular district at any particular time to supplement the local levy is something

we cannot forecast. We must assume, as we do, that the state aid provisions in the Act before us represent the Legislature's best effort to prophesy as to what this need will be. Comparison between the provisions of this Act and the State School Incentive Equalization Aid Law, N.J.S.A. 18A:58-1 et seq., which Robinson I struck down, while perhaps useful, certainly cannot be given significant weight.*fn4 The power which this new Act gives the Commissioner and the State Board of Education to increase local budgets, would, in and of itself, suggest the dubious value of any such comparison.

This power on the part of state administrative bodies to increase local school budgets requires that thought be given to another factor. As we stated above, Robinson I warned that if the State's obligation were delegated to local bodies, provision must be made to compel, if necessary, such local units to raise such funds as might be deemed essential. We have found that the present statute does make such provision. But Robinson I went on to say that "if the local government cannot carry the burden, the State must itself meet its continuing obligation." 62 N.J. at 513.

Fiscal inability on the part of a local district may conceivably stem from one or more of several causes. One reason would be the lack of an adequate tax base for educational purposes as indicated by the gross disparities shown in per pupil tax resources in the various school districts. The 1975 Act has taken a positive step to more nearly equalize per pupil tax resources by establishing a guaranteed

valuation per pupil for the school year 1976-1977 of 1.3 times the state average of equalized assessed valuations per pupil. Thereafter the figure is 1.35. N.J.S.A. 18A:7A-3. Only actual experience with this formula will demonstrate whether it adequately serves the purpose intended.

Upon occasion fiscal inability may be due to "municipal overburden." This phrase has come to be used to describe non-educational municipal expenses which must be largely financed from the same source -- property taxes -- as affords fiscal support for education.*fn5

The 1975 Act is silent as to how this contingency of local fiscal inability is to be met. It does not say, in so many words, where the money is to come from in the event of a showing that a local school district is performing inadequately due to a fiscal insufficiency, together with a further showing of inability at the local level to make up this monetary lack. This omission is not fatal to the facial constitutionality of the Act since State school aid may obviate that predicament. Though such eventuality may never occur, the State must be prepared to meet this contingency if it does arise. We think it would be wise were the Legislature to address itself to this potential problem. It would be helpful and expedient were there to be guidelines -- legislative or administrative -- as to what kind of showing must be made by a school district asking for state assistance due to local inability to recruit needed funds.

N.J.S.A. 18A:7A-25 places a limit upon annual budget increases. We are not sure what purpose is sought

to be served by this provision. It may be the Legislature feared that immoderate increases might unduly add to already excessively high tax burdens. It may have had other aims in mind. In any event the Commissioner is authorized to approve requests for larger increases where the level of spending would be insufficient to meet the goals, objectives and standards established to satisfy the requirements of a thorough and efficient education. How many districts and what amount of dollars are involved is of course unknown at this time; but certainly this escape valve is at least adequate to satisfy facial constitutional requirements.

The 1975 Act makes no mention of the weighting of pupils. This does not mean, however, that the concept is no longer viable under the new statutory scheme. Certainly the Commissioner, in determining "pupil status and needs" and ensuring "pupil progress" would, in all likelihood, take this concept into account.

In Robinson IV we ordered the reallocation of educational funds which were to be appropriated for minimum aid on a per pupil basis to the end that the average valuation per pupil throughout the state would more nearly be equalized. However, we did not hold that minimum aid was per se unconstitutional. We found it improper in the light of the gross disparities in per pupil expenditures and tax resources existing in the school funding program there under review.

The 1975 Act continues to make some provision for minimum aid upon a per pupil basis; but, when viewed in the context of the over all act which, as heretofore noted, has taken positive steps to eliminate gross disparities in per pupil expenditures and tax resources, such provision cannot be said to be unconstitutional. Only actual experience with the Act will demonstrate whether there is need for further adjustment or modification.

It is our conclusion that the Public School Education Act of 1975 is in all respects constitutional on its face, again assuming it is fully funded. The order of this Court contained in our opinion of May 23, 1975, (Robinson IV)

69 N.J. at 165, enjoining certain state officials from disbursing appropriated funds except in the manner there set forth is hereby vacated. The Act of 1975 is in full force and effect.

IV

The Court retains jurisdiction of the cause for the purpose of effectuating the following directions. If the Legislature does not by April 6, 1976 enact a provision for the funding in full of the State aid provisions of the 1975 act for the school year 1976-1977 the Court will, on notice to the parties and to all the school districts of the State, who shall be given an opportunity to be heard, issue an order to show cause returnable before the Court on April 15, 1976 why the Court should not forthwith order one or more of the following, to become effective unless the Legislature thereafter but on or before June 30, 1976, enacts a provision for such full funding:

A. direct a redistribution of such monies for State aid to schools as are appropriated by the Legislature for the school year 1976-1977 in such manner, generally, as to give priority to the satisfaction in full, so far as said funds may permit, of the provisions of the 1975 act for payment of current expense equalization support (exclusive of the 10% minimum support) and for debt service and budgeted capital outlay equalization support, pursuant to Sections 18 and 19 of the act respectively, pro rata; and should any excess of such State aid monies thereafter remain, then to the satisfaction pro rata of the other State aid provisions of the 1975 act;

B. order such injunctive relief as may be appropriate and necessary; and

C. order such different or other relief as may be appropriate and necessary.

HUGHES, C.J. (concurring). I concur in the result reached by the majority of the Court. And I agree with

its conclusions with regard to the facial constitutionality of the Public School Act of 1975, except to the extent hereafter mentioned. As to those exceptions my concurrence in the majority result is made with some doubt and misgivings, engendered by elements involved in the comprehensive opinion of Judge Conford herein, as well as the able discussion by Justice Pashman of the implications of "municipal overburden." I think it in the interest of justice and clarity that I state my reasons, and why I feel it necessary, despite such doubt, to concur in the result.

When it enacted the 1975 Act the Legislature accepted, in Article I, § 2b(5), the responsibility "[t]o monitor the system of free public schools and provide for corrective action when necessary to ensure adequate progress toward the achievement of goals and objectives." These "goals and objectives" were necessarily framed in the context of the Legislature's recognition (in Article I, § 2a(1)) of its constitutional responsibility to provide for "the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the state * * *." N.J. Const. (1947), Art. VIII, § IV, para. 1; see N.J. Const. (1844), Art. IV, § VII, para. 6, as amended, effective Sept. 28, 1875. It is equally obvious at least so long as that constitutional mandate by the people continues in existence, that the Court too must accept its continuing constitutional responsibility (aside and apart from its present decision concerning the facial sufficiency of the Act) for overview (in this or later litigation) of compliance with the constitutional imperative in application of the Act. This obligation would implicate at the outset scrutiny of the adequacy of standards and regulations to be adopted to implement the 1975 Act, the formulation of which is delegated to the administrators of the legislative purpose (the Commissioner and State Board of Education) and the local Board of Education pursuant to rules established by the State Board. Article II, § 6, 7.

Beyond this, assuming the conditional facial constitutionality of the 1975 Act -- the condition being the full and timely funding of the Act as specified by the majority -- and the final promulgation of standards and regulations effective to fulfill the legislative purpose and meet the constitutional norm, there yet remains an additional problem going to the heart of the constitutional infirmity identified by all courts which previously have considered this question. That is, even should the Act be facially constitutional, implemented by adequate administrative standards and regulations and fully funded by timely appropriations, is not its "workability," i.e., its actual effectiveness in the field in delivering a constitutional system of thorough and efficient public education, -- still an open and, eventually and necessarily, a justiciable question? Put in another way, is the force of the remedial power given the Commissioner and the State Board by N.J.S.A. 18A:7A-14 et seq., including the "safety-valve" provision of § 25 of the Act, in coping one by one with the 578 school districts of the State (or that lesser number perceived from time to time to be deficient in meeting the constitutional imperative) conceivably realistic in relation to its purpose? Can these provisions be effective in permitting or compelling the increase of local school budgets or the taking of other steps toward improvement in order to bring about constitutionally appropriate local compliance? And this, against the sentiment of home rule concepts which control all other municipal expenditures from the same taxable base which largely supports public education?

These questions are difficult and their answers almost impossible to prophesy without experience. They relate to the reservations I have had in resolving my proper course of action with regard to the several elements thought by Judge Conford to foredoom, in any case, the constitutional potential of the 1975 Act however its application in actual practice might eventuate. These personal doubts have been particularly puzzling because the long record of this whole

case demonstrates that the local school district insufficiencies (and the consequent frustration of the constitutional promise as to so many tens of thousands of New Jersey school children) result not so much, -- perhaps not at all, -- from a local reluctance to furnish a thorough education to children in the constitutional sense, but from pressures resulting from deficient financial resources; deficiencies so obviously attributable to imbedded and invidious disparities in the tax bases of so many of our communities. These discordancies are cogently described in the opinion herein of Judge Conford. Such discordancies are rarely disassociated in effect from those equally grave pressures on local government management enveloped in the broad term "municipal overburden," viewed with such concern in the opinion herein of Justice Pashman. These equally vital interests of the people (though not dealt with in specific terms, as is education, in the New Jersey Constitution) whether with regard to police, fire, health or other municipal protection, are plainly related to the life, liberty and pursuit of happiness of the people.

"Municipal overburden" is a cause, but not the only cause of the discordancies of tax resources available for the support of public education. But "municipal overburden" as such, unless we as a Court are willing to embrace the "convulsive implications if home rule is vulnerable" (Robinson 1973, -- Robinson v. Cahill, 62 N.J. at 501) must be set aside and considered to be a legislative problem. Even so, its causal relationship to municipal or school district incapacity to support education is not irrelevant. Although the court may not cure, it may certainly recognize "municipal overburden" as a causative factor in the ascertained incapacity of many school districts to meet the constitutional obligation. This even though we recognize that such incapacity may and does occur, apart and aside from the weight of "municipal overburden," from other causes such as a paucity in basic tax ratables in business and residential property.

In considering, as a member of this Court, my constitutional duty at this juncture, I have recalled that the Court does not purport to "'sit as a super-legislature,'" a role firmly disavowed by this and other courts. King v. South Jersey National Bank, 66 N.J. 161, 179 (1974) (quoting Griswold v. Connecticut, 381 U.S. 479, 482, 85 S. Ct. 1678, 1680, 14 L. Ed. 2d 510, 513 (1965)). Our Court has previously and repeatedly shown, in its judicial restraint, its profound respect for the doctrine of separation of powers of government. Robinson v. Cahill 1973, supra; A. & B. Auto Stores of Jones St., Inc. v. Newark, 59 N.J. 5, 19 (1971); Burton v. Sills, 53 N.J. 86, 95 (1968); Thomas v. Kingsley, 43 N.J. 524, 530 (1965); Jackman v. Bodine, 43 N.J. 453, 473 (1964); Grand Union Co. v. Sills, 43 N.J. 390, 403 (1964); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 229 (1960). A court must always adhere to that concept, bending only so far as clearly required to fulfill the constitutional duty its members swore to perform: "I will support the Constitution[s] * * *."

All of us have considered, some with differing views, the potential constitutional defects pointed out by Judge Conford. For instance, a fragment of the "minimum aid" condemned by a majority of the Court in our May 1975 decision (Robinson 1975, Robinson v. Cahill, 69 N.J. 133, 149-50) continues in § 18(c) of the present Act. Its compensation of "rich" districts which so obviously do not need such aid, at the expense of the "poor" districts, is clearly regressive and antithetical to the constitutional goal.

Yet it is much less than heretofore under the "Bateman" formula described by Judge Conford. It appears in the context of a wholly new and unprecedented legislative definition of the constitutional goal (a "plan" as invoked in Robinson 1973, 62 N.J. at 519). It is not nearly so important now as it was when in our May 1975 decision, 69 N.J. at 155, it was diverted to the "equalization" concept of Bateman. As wrong and regressive as it is, I think its magnitude is not such as to require excision, nor to cause the condemnation

on constitutional grounds of an act conceived by the Legislature -- for the first time in New Jersey history -- to define and implement the 1875 constitutional commitment to educational opportunity. I think its logical imperfection, at least presently, may be absorbed in the larger constitutional thrust of the 1975 Act, so urgently needful in the interest of New Jersey children.

Equally describable as regressive in the constitutional sense are the "categorical aids" prescribed in the 1975 Act. Yet these aids, such as transportation costs, so intertwined with the personal safety and well-being of the school population, are so essential that at least at present, and unless future non-action of the Legislature in moving toward equalization of tax resources (insofar as they are essential to constitutional support of a thorough and efficient system of education) should force that issue upon us (a contingency one hopes will not occur), we think these "categorical" aids should not be disrupted regardless of their theoretical and real collision with the constitutional precept.

Similarly, it seems impossible to quarrel with the logical criticism of the constitutional import of § 25 discussed in Section V of Judge Conford's opinion. It may well be, in the actual working experience of the Act, that its arbitrary restrictions on budget increases, as applied to deficient districts trying to "catch up" in their delivery of education as required by the Constitution, may one day result in a determination of unconstitutional application of the Act. Yet one must consider what is termed by the majority the "escape valve" of the Commissioner's power to lift such restriction. The Commissioner, just as the Court, the State Board and the Legislature, is bound to fulfill the constitutional precept and it must be assumed that he will do so.

But it is the final and major point of Judge Conford's caveat that has caused me most doubt, that is to say the inadequate approach of the 1975 Act toward the equalization of tax resources, which lack was identified by Robinson 1973 as

the essential cause of failure in fulfillment of the constitutional commitment. The Court there said:

[I]t cannot be said the 1875 amendments were intended to insure statewide equality among taxpayers. But we do not doubt that an equal educational opportunity for children was precisely in mind. The mandate that there be maintained and supported "a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years" can have no other import. Whether the State acts directly or imposes the role upon local government, the end product must be what the Constitution commands. A system of instruction in any district of the State which is not thorough and efficient falls short of the constitutional command. Whatever the reason for the violation, the obligation is the State's to rectify it. If local government fails, the State government must compel it to act, and if the local government cannot carry the burden, the State must itself meet its continuing obligation. [62 N.J. at 513]

And if the State is indeed to "meet its continuing obligation" to public education by the use of State aid to fill the vacuum of real and proven local incapacity to meet the constitutional commitment, it does not demonstrably do so by the 1975 Act. For it leaves unequalized by State aid dollars what has always been assumed to be an otherwise irreversible tax resource deficiency on the part of many impoverished school districts across the State. Yet the 1975 Act (assuming it is fully funded), as pointed out by the majority, does much else that is good for educational opportunity and is no less than historic in its definition of and commitment to the constitutional goal. Quaere: Should it be struck down now, because of the lack of a plan of more substantial equalization?

In the area of judicial restraint and moderation there is room for accommodation to the exigencies of government, as pointed out by Judge Conford, in the consideration of practical possibilities of accomplishment. Brown v. Board of Educ. of Topeka, 349 U.S. 294, 300-01, 75 S. Ct. 753, 756, 99 L. Ed. 1083, 1106 (1955). This Court has exercised this restraint in the timing of required accomplishment of

a constitutional goal, without abandoning its eventual enforcement. Jackman v. Bodine, supra; Robinson 1973, supra; Robinson 1975, supra. Here one must acknowledge a difference between the timely funding of the 1975 Act as directed by the majority and the implementation over some feasible number of years of the equalization concept of State aid in terms of twice the State average of equalized assessed valuations as described by Judge Conford in his opinion (or some comparable alternative). As to the former, time has run out long since. If the Court were to fail to insist now upon immediate funding of the 1975 Act as a condition to sustaining its facial constitutionality, it would itself be contributing to a profound violation of the New Jersey Constitution. As to the latter, however, considering the beginning of operation and the developmental experience to be expected under the fully funded 1975 Act, I would not now predicate a finding of its unconstitutionality upon its deficient recognition of the need for substantial equalization equivalent or comparable to that recommended by Judge Conford. And if perchance in the reasonably near future there should be no effective step toward equalization, and it were to be established by proofs that such failure caused to continue to fester the invidious discordancies of tax resources destructive of the possibility of meeting the constitutional goal, I would feel constrained to then determine the unconstitutionality in application of the 1975 Act, even as Robinson 1973, supra, determined as to Bateman, 62 N.J. at 515.

SCHREIBER, J. (concurring). I join in the majority opinion, but I believe that the order to show cause mentioned in Part IV of the opinion should include, in addition to the remedies contemplated by paragraphs A, B and C thereof, that suggested by Justice Pashman under which collection of local taxes for the support of the public schools would be enjoined and in lieu thereof a state school tax would be determined and applied to the ratables throughout the State.

The funds collected would then be disbursed through the State Treasurer, subject to the approval of the Commissioner of Education, to the respective school districts.

CONFORD, P.J.A.D., Temporarily Assigned (concurring and dissenting). With all deference to the differing views of the court majority, the writer entertains the firm conviction that in certain important respects, particularly the inadequacy of equalization of tax resources per pupil among the school districts, the 1975 education act, L. 1975, c. 212, N.J.S.A. 18A:7A-1 et seq., does not meet the requirements of the Education Clause of the Constitution as laid down in Robinson v. Cahill, 62 N.J. 473 (1973) (hereinafter designated as "the 1973 Robinson opinion or decision") and as reaffirmed by a majority of the court as presently constituted, less than a year ago, in Robinson v. Cahill, 69 N.J. 133 (1975) (hereinafter designated as "the 1975 Robinson opinion or decision"). Aside from those aspects of the new statute, to which attention will presently be addressed, the writer shares with the majority the view that the act is otherwise facially valid and should so be declared at the present time without the necessity for remand for further factual hearings as demanded by plaintiffs and certain of the amici. However, one is compelled to say, with profound regret, that in giving blanket facial approval to the 1975 act in toto, the court is departing from the course of fiscal justice to the school children of this State on which it embarked in so enlightened a fashion in the 1973 Robinson decision and reinforced so resolutely in the recent 1975 Robinson case.

Introductorily, it is to be noted that in the 1975 Robinson opinion a majority of this court had no hesitancy in interpreting the 1973 decision of the court as identifying as "the principal cause of the constitutional deficiency" of the previous system of financing public education in this State "the substantial reliance * * * upon local taxation, entailing as it does 'discordant correlations between the educational

needs of the school districts and their respective tax bases'", citing 62 N.J. at 520; 69 N.J. at 141. In essential character, the 1975 act now under review retains the vitiating dependency upon local taxation for the bulk of the cost of financing local education, with its continuing substantial discordance among the school districts in relation to the ratio of the tax resources of the districts to the number of pupils enrolled in the schools. While the equalization support provisions of the 1975 act, designed to ameliorate the discordancies mentioned, are an improvement over those of the previous law (hereinafter referred to as the Bateman or Bateman-Tanzman Act) (L. 1970, c. 234; N.J.S.A. 18A:58-1 et seq.), nevertheless, as will be shown, a substantial proportion of the State's school districts, of the pupils enrolled therein and of the equalized assessed valuations represented thereby, remain unaffected by the support equalizing provisions of the 1975 act. In consequence, it must follow that the resulting absence of "equality of educational opportunity",*fn1 which Chief Justice Weintraub found fatal to the constitutionality of Bateman in the 1973 Robinson decision, still condemns the validity of the 1975 act, at least in part.

The second major aspect in which the 1975 act falls short of constitutional requirements, to be more fully developed later herein, is in respect of the provision of substantial "minimum aid" to all those districts which, because of their relatively high valuations-per-pupil base, do not qualify for equalization support aid. The specific holding of our 1975 Robinson decision was that "minimum aid" to districts in that category, as then provided for in Bateman, was invalid in the factual context of absence of full equalization support of all districts. Indeed, our order in that case was for the redistribution of all such minimum aid in accordance with the equalization support provisions of the Bateman

Act. 69 N.J. at 155. Thus, the 1975 act being flawed because of its failure to provide equalization of tax resources per pupil among substantially all districts, the minimum aid provisions of the act must necessarily also fall.*fn2

The 1975 act is, however, readily susceptible of constitutional correction within the general framework of the statute as drawn, as will presently be demonstrated. But an understanding of how the equalization provisions of the act fall short of the constitutional prescriptions of both the prior Robinson decisions of this court requires an outline and comparison of the general state aid schemes of Bateman and the 1975 act.

I

A synopsis of the state aid support plan of the Bateman Act is set forth in the 1973 Robinson opinion. 62 N.J. at 516-518. The basic structure of the plan consisted of three main features. It will be seen that the 1975 act, although differing markedly as to detail, continues in its general aid plan the three main features of the Bateman structure.

These features, as found in both the acts in question, consist of:

(a) an assessed valuation equalization plan designed, in effect to "guarantee" every school district the equivalent of a fixed amount of assessed valuations. The purpose is to give every district whose actual equalized*fn3 assessed valuations

are below the guarantee level the capacity to raise the same amount of funds for school expenses per pupil through the same school tax rate as every other such district;

(b) a "minimum" per pupil allowance to the districts separate and apart from equalization guarantees;

(c) "categorical" aids to defray the special expenses attendant upon the requirements of pupils especially difficult to educate in various respects. This category also includes the expense of transporting children to and from school and certain other miscellaneous types of aid.

It becomes especially pertinent to compare the equalization aspects of the state aid plans of Bateman and the 1975 act. Bateman was designed to build upon a previous "foundation plan" of $400 per pupil. Districts were to be rated for aid in a five-step scale ranging from "basic" to "comprehensive", the former to be afforded guaranteed valuations at the rate of $30,000 per pupil and the latter $45,000. However no districts other than basic were ever created. A transitional scale of funding of the amount of equalization aid required by Bateman was set up for attainment over a period of years. The original funding was for 20% of the difference between the Bateman formula at the basic level and the previous foundation program. L. 1970, c. 234. For the school year 1972-1973 the funding was for 40% of the difference. L. 1971, c. 335. For the school year 1973-1974 the percentage was increased to 66-2/3%. L. 1972, c. 195. For the school year 1974-1975 the Bateman Act was fully funded (at basic level). L. 1973, c. 310. However, for the school year 1975-1976, aid was appropriated only at the 1974-1975 level, and full Bateman funding accordingly sustained a shortage of about 18%.

Inherent in the Bateman aid plan is the proposition that districts having actual equalized valuations above the guarantee

level fixed by the act as of any given time will enjoy lower education tax rates for the same amount of education expense per pupil than districts whose actual valuations are below the guarantee level. See the trial court opinion in this case, Robinson v. Cahill, 118 N.J. Super. 223, 262 (Law Div. 1972). As there stated, "the Bateman Act continues to employ a wealth-based formula." Ibid. As of 1971 the guarantee level for state aid was $33,000 per pupil, ibid., but there were at that time 208 districts with actual equalized valuations below $35,000 per pupil (4 were below $10,000) and 370 above $35,000 (42 above $90,000). 118 N.J. Super. at 242. There was thus obviously inequality of educational opportunity as between pupils in the districts below (so-called "poor" districts) as compared with those above the guarantee level fixed by the Bateman Act (so-called "rich" districts). The studies made by the trial judge from the evidence before him satisfied him that:

"In most cases, rich districts spend more money per pupil than poor districts; rich districts spend more money on teachers' salaries per pupil; rich districts have more teachers and professional staff per pupil, and rich districts manage this with tax rates that are lower than poor districts, despite 'equalizing' aid." 118 N.J. Super. at 237-238; and see Appendix A attached to opinion of trial court, id. at 282-285.

On review of the trial court adjudication of unconstitutionality of the Bateman financing plan, this court in its 1973 Robinson opinion affirmed, resting its holding on the Education Clause (the trial court had also found denial of equal protection, state and federal). The court found "denial of equality of educational opportunity," stating that the adjudication was placed on the same criterion as that employed by the trial court -- "on the basis of discrepancies in dollar input per pupil." 62 N.J. at 515. But it is apparent from what is noted above that the trial court found in the startling discrepancies in dollar input*fn4 the symptoms,

not the root causes of the constitutional deficiency. The quotation from the trial court opinion excerpted above indicates that it ear-marked the wide discordancies in tax ratable resources per pupil as the most probable cause of the extent of the discrepancies in expenditures so fatal to equality of educational opportunity. That this court was in agreement with that diagnosis is established by at least two significant statements in Chief Justice Weintraub's 1973 Robinson opinion. The clearest was:

"Upon the record before us, it may be doubted that the thorough and efficient system of schools required by the 1875 amendment can realistically be met by reliance upon local taxation. The discordant correlations between the educational needs of the school districts and their respective tax bases suggest that any such effort would likely fail * * *". 62 N.J. at 520 (emphasis added).

The other pertinent excerpt is:

"We have outlined the formula of the 1970 Act [Bateman] to show that it is 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 1875 Amendment mandates. We see no basis for a finding that the 1970 Act, even if fully funded, would satisfy the constitutional obligation of the State." 62 N.J. at 519 (emphasis added).

It should be as clear to anyone now as it was to a majority of this court in rendering the 1975 Robinson decision, as already noted above, that these passages, taken in the light of the record as a whole and the cogent opinion of the trial court, established the district discordancies in tax resources per pupil as "the principal cause of the constitutional deficiency" of the financing scheme under Bateman. 69 N.J. at 141.

It is, accordingly, appropriate to inspect the state aid plan of the 1975 act, in the light of the information of record, to ascertain whether the fundamental constitutional defect under the Bateman Act, noted above, has been eliminated by the legislation now before us.

II

Article III of the 1975 act deals with pecuniary state aid to the districts. It should be noted, preliminarily, that the State provides a significant amount of local aid outside the coverage of the act, and unaffected by it, in the form of support of the public schools' pension system, entailing for the year 1976-1977 upwards of $200,000,000. This aid is provided on an actual cost, not an equalization, basis. The discussion of the fiscal provisions of the act hereinafter will not be inclusive of those figures except when specifically noted.

State aid for local school districts is provided in three general categories: "equalization support", "categorical aid" and minimum support. Equalization support is calculated separately for "current expenses", Section 18, and for "debt service and budgeted capital outlay". Section 19.

The equalization support formulae are best understood by preliminary attention to certain definitions. "Guaranteed valuation per pupil" means, for the school year 1976-1977, 1.3 times the State average of equalized assessed valuations per pupil enrolled in the schools. Section 3. Thereafter the figure is 1.35. Ibid. "State support limit" means the 65th percentile net current expense budget per pupil for the pre-budget year*fn5 when all district figures are ranked from low to high. Ibid. A district's "State support ratio" is determined by dividing the district equalized valuation per pupil by the guaranteed valuation per pupil and subtracting the quotient from 1.0000. Section 18.

The amount of a district's current expense equalization support is derived by multiplying its State support ratio by the smaller of (1) the net current expense budget and (2) the resident enrollment times the State support limit.

Section 18. It can be seen that the general concept is to back each pupil in the schools in respect of district current expenses (but not in excess of the State-wide 65th percentile) with tax resources as represented by equalized valuations of at least 1.35 (after 1976-1977) times the State average of the districts. Those districts that have less valuations are in effect brought up to that level by aid; those that are above get no current expense aid or debt service and budgeted capital outlay aid but receive minimum support aid (see infra).

State support for debt service and budgeted capital outlay is in the amount of the district's budgets for those items multiplied by the district's State support ratio. If the product is less than zero the district gets no aid. Section 19.

Minimum support aid is in two categories: (a) "minimum aid" (a non-statutory term) of no less in current expense equalization support than 10% of the State support limit, Section 18(c); and (b) "save-harmless aid" (a non-statutory term) assuring every district of no less in state aid of all categories for 1976-1977 than it received during the school year 1974-1975, Section 55, and no less in 1977-1978 than one-half of the difference between what it received in 1974-1975 and what it would be entitled to under the 1975 act. Section 56.*fn6

"Categorical" program aid consists of a schedule of "additional cost factors" in weighting pupils attending special education classes*fn7 (Section 20). Categorical support is calculated

by multiplying the number of additional cost units by the State average net current expense budget. Section 20(d).

Generally understood as falling under "categorical support" but separately treated in the act is the defrayal of transportation costs. Section 34 and 35. Transportation aid is for the full cost of transporting handicapped children and for the full cost of transportation of any pupils residing beyond specified distances from school. Ibid.

Section 25 of the act regulates the rate at which districts may increase budgets for net current expense from year to year, subject to discretionary exemption by the Commissioner. Districts whose budgets are less than the State average may increase at a faster rate than districts at or above the average, the rate depending upon the degree below the average. Districts at or above the State average are all subject to the same maximum rate of increase.

In comparing the equalization aid provisions of Bateman with the 1975 act in order to determine whether the constitutional infirmity discussed above, adjudicated as to Bateman, is also applicable to the 1975 act, the court is not

remitted to a facial comparison of the two financing schemes. The court has the benefit of extended statistical studies supplied us at our request, and served upon all parties, by the Department of Education. For purposes of the discussion immediately ensuing it will be assumed that a district "equalized" as to valuations under the 1975 act receives equalization benefits equivalent to those of a district equalized under Bateman.*fn8 It must be conceded, as the majority point out, that a substantially greater number of districts will, under the 1975 act, for the school year 1976-1977, fall within the umbrella of equalization for current expense and for debt service and budgeted capital outlay, than would be equalized under the comparable equalization provisions of Bateman were that act, fully funded, in operation for the same school year.

In the interests of a fair long-range assessment of the equalization effect of the 1975 act use will be made of the Department's figures computed at the 1.35 guarantee ratio which will apply after the school year 1976-1977 (the ratio is only 1.3 for the year 1976-1977). Were that ratio in effect for 1976-1977, 368 of the 578 school districts, or 63.7%, would be equalized.*fn9 The pupils in those districts

would be 73.5% of all pupils. The aggregate equalized valuations in those districts would be 56.5% of the total. These figures may be compared with the corresponding figures for districts equalized under Bateman for 1976-1977: 157 districts, or 27.2% of total; pupils in such districts being 38.5% of all pupils; and aggregate equalized valuations in such districts being 21.5% of total aggregate equalized valuations.

However, the conceded salutary improvement of the 1975 act over Bateman in the equalization effect just noted does not erase the remaining blunt, egregious facts that (a) under the 1975 act 210 of the districts possess an educational tax resource advantage over the other 368 districts, on a per-pupil basis; (b) that this superior educational opportunity accrues to 26.5% of the State's pupils as against the other 73.5%; and (c) that the gross fiscal measure of that advantage is represented by the ratio of the 43.5% of aggregate equalized valuations in the favored districts as against the 56.5% of valuations in the districts discriminated against.

The extent of the educational inequality involved in the foregoing situation is exemplified by the fact that, while the 1975 act provides equalization to an equalized valuation level of $80,100 per pupil (see note 9, supra), the actual equalized valuations per pupil of the favored districts in many cases run into the hundreds of thousands of dollars per pupil.*fn10

Surely, in the light of these patent facts, revealed by the record before us, it cannot be said that under the operation of the 1975 act there will no longer exist the "discordant

correlations between the educational needs of the school districts and their respective tax bases" found in the 1973 Robinson decision, as noted above, to have presumptively invalidated the Bateman school financing plan because negating equality of educational opportunity.*fn11

The presumptive tax rate advantage accruing under the local property tax system and Bateman to districts having high equalized valuations per pupil, found as a fact by the trial court, as noted above, is shown by Education Department exhibits submitted to us to be equally applicable to the 1975 act in projection for the school year 1976-1977.

Illustrative is Exhibit 6 of the Department's evidential exhibits in the case, undertaking to compare prospective local current (educational) expense tax rates, as between different hypothetical school aid plans, in application for the school year 1976-1977. That exhibit, slightly edited for added clarity, is appended to this opinion. It sets forth the statistics for 50 randomly selected districts at evenly spaced percentiles of the rankings of all the districts in respect of equalized values per pupil ("E.V. per pupil"), ranging from Camden, at the lower end with an E.V. of $20,401, to Stone Harbor, with an E.V. of $1,073,027.

For present purposes, the attention of the reader is directed to columns (2) and (3) of Exhibit 6 which compare the prospective current expense effective tax rates under the

1975 act and under the Bateman Act (there designated as "Bateman-Tanzman"). It will be seen that in relation to both the 1975 act and Bateman tax rates remain relatively stable for all the districts whose equalized valuations fall under the guarantee level (under the 1975 act) of $86,000 per pupil. As the districts, beginning with No. 71 (Nutley), approach and rise above that level, tax rates begin to go down, and drop precipitately with the 20-25% of districts at the upper end of the equalized valuations scale.

Of particular relevance to the differences between the writer and the majority concerning the constitutional viability of the 1975 act in relation to the extent of equalization of the districts, it is pointed out that the exhibit shows that there is rough comparability between the 1975 act and Bateman as to the point where differences in equalized valuations of the districts begin to manifest themselves in significant reductions in effective school tax rates. This of course strongly negates the implication of the majority opinion that the 1975 act improves district equalization, as compared with Bateman, to an extent justifying the court in regarding the condemnation in our prior decisions of Bateman in this respect as now overcome.

The same lesson is to be drawn from the rationale of our 1975 Robinson decision, directing the order of redistribution, written by the Chief Justice and subscribed to by five members of this court, 69 N.J. at 149-151, 155, and a comparison of the effect of that redistribution with the operation of the 1975 act. The sum and substance of the 1975 court order was to effectuate an interim step toward constitutional compliance in a state aid system which had been adjudicated constitutionally defective. What we did was to take certain state aid moneys not related to equalization of district tax resources per pupil and order them redistributed in accordance with the equalization formula of the Bateman Act. In doing so we said that that course would tend "to subserve the goal of equality of educational opportunity." 69 N.J. at 149. We accepted as sound in

principle the contention there addressed to us by the Governor that the six categories of state aid (non-equalizing) which he sought to have redistributed "are not compatible with the Robinson criterion of equality of educational resources for the pupils, whereas the incentive formula is." Ibid.

We thus could not have more clearly identified the objective of equalization of district tax resources per pupil with the transcendental objective of the Education Clause specified in the 1973 Robinson decision -- "an equal educational opportunity for children."*fn12

We were, however, careful to point out in the 1975 Robinson decision that the order there directed was not conceived of as a final and perfect implementation of the Education Clause but as an "essential and minimal interim step in the enforcement of the Education Clause," 69 N.J. at 154; as a "positive step toward the end result of full constitutional compliance," 69 N.J. at 151 (emphasis added).

However, examination of the statistical effect of the 1975 court order and comparison thereof with the operation of the 1975 act shows that the 1975 act does not constitute a significantly greater advance in the direction of full equalization of districts than the court order, even crediting the 1975 act with a 1.35 guaranteed valuation ratio (applicable only after 1976-1977). Under the court order the percentage of equalized districts is 59.6, compared with 63.7% for the 1975 act; the respective percentages for pupils in such districts are 72.2% as against 73.5%; and the percentages of aggregate equalized valuations in such districts are 55% as against 56.5%. The comparison thus reveals essential parity in equalization as between the court order and the 1975 act.

Equalizing aid for current expenses in 1976-1977 under the 1975 act is, at a total of $568,093,418, only minimally

above the comparable figure of $551,080,454 under the court order.

The amici who support the plaintiffs in this case have submitted tables of statistics demonstrating that the urban districts, characteristically low in ratables per pupil and characteristically high in non-school burden on the tax base as well as in number of children requiring special educational effort, fare substantially better under the court order than under the 1975 act. While, as shall be more fully developed later herein, the equalizing effect of the 1975 act in a constitutional sense cannot be judged exclusively by a comparison of effects on urban vis a vis non-urban districts, there is broad unanimity of opinion that the urban districts, for the reasons given, are peculiarly in need of equalizing state aid to education.

In summation of the present discussion, it is difficult if not impossible to reconcile the thesis that the court order of 1975 was only a step in the direction of achievement of full equalization of educational opportunity with the position of the defendants and the majority that the enactment of the 1975 act has achieved the requisite constitutional level in that regard.

III

The majority have not satisfactorily dealt with the constitutional deficiency of the 1975 act discussed above. After noting the fact that more districts achieve equalization under the 1975 act than under Bateman (note 4, p. 465), the opinion is content to say, peremptorily, that comparison of the state aid effects of the 1975 act and Bateman "certainly cannot be given significant weight." (p. 465). This conclusion is rested on the Commissioner's power under the 1975 act to compel the districts to raise their budgets if inadequate. However, conceding that the Commissioner's statutory power to direct "budgetary changes" in a deficient district includes the power to direct an increase in any such

budget, the exercise of such a power against a district of relatively low equalized valuations per pupil -- a district whose pupils are already unconstitutionally discriminated against under the criteria of the 1973 and 1975 Robinson decisions -- would simply be to exacerbate the existing denial of equality of educational opportunity to the pupils in such districts. It would place added strain on tax rates already inflated by inadequate bases of ratables per enrolled pupil.

The majority note (at p. 465) that in our 1973 Robinson decision it was pointed out that if a district were unable to raise the funds to provide the requisite educational opportunity for its pupils, "the State must itself meet its continuing obligation." 62 N.J. at 513. But the majority concede that the 1975 act contains no provision for meeting this contingency and exhort the Legislature to address the problem. The majority do not regard the matter as critical to the facial constitutionality of the act, saying that the contingency of local fiscal inadequacy "may never occur." With all due respect to the majority, the latter observation ignores the fact established in the record before us that inadequacies have abounded in our educational system in many parts of the State, see 118 N.J. Super. at 247, 249-252. It also ignores the adjudication in our prior decisions in this case that (a) inequality of educational opportunity is per se a denial of the guarantee of the Education Clause; and (b) discordancies in tax resources among the districts on a per pupil basis is presumptively a denial of equality of educational opportunity in the districts disadvantaged by such discordancies. It has been shown above that these pernicious conditions continue under the 1975 act.

One can agree with the majority that the matter of achieving educational adequacy in our public schools has not heretofore been addressed by the Legislature in the comprehensive manner reflected by the 1975 act. It is salutary that this has now been done. But the matter of achievement of substantive excellence in the educational process was not the heart of the grievance which led to the filing of this action

in the first instance. That consisted of the claim that the Education Clause implied either equality of treatment among taxpayers or "equality among the pupils of the State and that such equality is not achieved and cannot be achieved by a system of taxation which depends upon the existing local tax base." 62 N.J. at 509-510.

Basically, the latter contention was upheld by this court in the 1973 Robinson case. As the majority recognize, we approached the issue before us in the 1973 Robinson case as involving "the constitutionality of statutes providing for the financing of elementary and secondary schools," 62 N.J. 480 (emphasis added), not the constitutionality of different methods of imparting education or of contending theories as to the merits of comparative educational goals or processes, unrelated to the matter of financing.

The issue before the court ever since this litigation began always has been, and remains, the constitutionality of the system of fiscal treatment by the State of the districts in respect of education and the presumptive effect thereof upon the educational opportunities of pupils. The mere enactment of the 1975 act did not draw a curtain of irrelevance over the pre-existing system of financing education or obliterate the relationship of that system to that enacted in 1975. Nor did it, or any idealistic educational aspirations expressed therein, nullify the prior holdings of this court that there is a denial of equality of educational opportunity where one district can draw on substantially greater tax resources per pupil to support education than another district.

And so the fundamental issue before us has not, as one might gather from the majority opinion, been transmuted into the more remote future question of whether particular districts will on particular future occasions be shown to be inadequately financed for the administration of their educational function. The issue remains whether the systemic constitutional deficiencies of the Bateman plan as an entirety, twice adjudicated by this court, have been eliminated in the

1975 act. The very purpose of the court's retention of jurisdiction over the matter to the present time has been to make certain that any adopted statute measured up to the constitutional criteria we set in our prior decisions. In that sense the 1975 act does not start off with the ordinary presumption of constitutionality. The burden lies with its proponents. It has not been met. It is clear that the deficiency inherent in the substantial continuance among the districts of unremedied discordancies in tax resources per pupil is, unless corrected, fatal to the validity of the 1975 act.

To hold this act wholly valid in the face of the facts of record is to return to the disastrous era of legislative laissez-faire in school financing which led to ...


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