On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Hughes, Justices Clifford and Handler and Judge Conford. For affirmance -- Justices Sullivan and Pashman. For remandment -- Justice Schreiber. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned). Sullivan, J. (dissenting in part). Justice Pashman joins in this dissent. Pashman, J., dissenting. Schreiber, J., dissenting in part and concurring in part.
The dispositive issue before the Court is the constitutionality vel non of N.J.S.A. 18A:33-5 which exempts from the mandatory school lunch program in the public schools, N.J.S.A. 18A:33-4, those individual schools in which under 5% of the enrolled pupils qualify economically for free or reduced price lunches. The Superior Court, Chancery Division, held the exemption to deny equal protection of the laws to otherwise qualified school children in schools exempted from the mandatory program. At the same time the court held the invalid exemption provision to be severable from the act as a whole, thereby mandating the lunch program in every public school in the State. The Appellate Division affirmed in an unpublished opinion, essentially for the reasons orally expressed by the trial judge.
The School Lunch Act, L. 1974, c. 53, reads as follows:
Each school district shall make school lunch available to all children enrolled in the district within 1 year from the effective date of this act. Such lunches shall meet minimum nutritional standards established by the Department of Education. Free and reduced price lunches shall be offered to all children qualifying under Statewide eligibility criteria. [ N.J.S.A. 18A:33-4].
Any school in which less than 5% of pupils enrolled meet the eligibility requirements for a free or reduced price lunch shall be exempt from the provisions of this act. [ N.J.S.A. 18A:33-5].
The legislative history of these provisions is of some significance in relation to the equal protection inquiry whether the exemption in Section 18A:33-5 bears some rational relationship to the purpose and object of the legislation as a whole. Similar legislation had been proposed in
the 1972 legislative session. Assembly Bill No. 1156 was captioned, "[a]n Act requiring that school lunch be made available to all children" (emphasis suppled), and contained no exemption for any schools. The accompanying statement noted that the bill's purpose was to assure access to lunch to "all public school children in every school district." The Assembly rejected the bill by a 67-2 vote, and did not again consider it as a body. 60 Leg. Index A-38 (No. 19 Jan. 15, 1974). The present act was submitted to the Assembly as Bill No. 442 in the 1974 session. With minor amendment, it passed in the Assembly by 67-5, again without an exemption provision. The bill then went to the Senate Education Committee where, by a 3-2 vote, it was disapproved. The committee then amended the bill by inserting for the first time the exemption now codified as N.J.S.A. 18A:33-5.*fn1 As thus amended, the bill passed in the Senate by 28-6 and the Assembly by 64-0. 61 Leg. Index A-12 (No. 18 July 22, 1974).
Responsibility for implementation of the act is vested in the Commissioner of Education, and has been delegated by him to the Bureau of Child Nutrition Programs of the Department of Education. Regulations concerning the providing of free and reduced price lunches are found in N.J.A.C. 6:79-1.1 et seq. Each school conducts an annual survey to determine which of its enrolled students are eligible for such lunches under bureau-established standards. N.J.A.C. 6:79-1.4.
Once a lunch program is undertaken, local school districts are reimbursed by the State at a variable rate for each lunch served, the rate being determined by both the concentration of needy children per school and whether a lunch is served free or at reduced or full price. Federal funds are available
to reimburse the districts for 75% of the cost of purchase and installation of equipment such as refrigerators. There is no funding for salaries of local personnel involved in implementation of a lunch program except when State reimbursement for lunches exceeds costs; neither is there reimbursement for construction of necessary physical facilities.
The instant action was brought by a number of individuals in their capacities both as school board presidents and municipal taxpayers, together with the boards themselves. The complaint charged that the 5% exemption provision in the law (1) denied plaintiffs equal protection of the laws, being arbitrary and without rational relationship to the purpose of the school lunch legislation; (2) "contravene[d] the thorough and efficient education mandated by the Constitution * * *"; and (3) "create[d] an undue burden on the plaintiffs." An injunction and a declaratory judgment were sought. Defendants Commissioner of Education and the State filed an answer and counterclaim seeking a declaration that the act was valid and an order compelling compliance with it by plaintiffs boards of education and other non-complying school districts.
The Public Advocate was granted leave to intervene as a defendant. He originally took the position that the statute was valid. Later he urged that if the exemption provision was held invalid it should be deemed severable. On the appeal to the Appellate Division he argued: (a) that the exemption violated the 14th Amendment rights of the children in the exempted schools; and (b) the exemption provision of the act is severable. On the appeal to this Court the Public Advocate eschews any position in the matter, explaining that he fears that if the decision of the Appellate Division is affirmed new legislation is apt to be adopted cutting back on school lunches to needy pupils to a greater extent than the present act.
At the outset of the trial herein, the trial court granted summary judgment to defendants as against the plaintiff school boards on the ground that, as instrumentalities of
the State, they had no standing to challenge the legislation. No appeal has been taken from that action. After trial the court rendered a decision construing the action to be one by the taxpayer plaintiffs on behalf of needy school children who would be deprived of lunches under the 5% exemption.*fn2 The court concluded that the exemption was without rational basis in the purpose of the act because some children would be deprived of lunch regardless of their need and some schools would be forced to initiate a lunch program in a given year yet be exempted the following year because of a shift in the percentage of needy children at the school in that year. It therefore held the exemption invalid, and, holding the invalid provision severable, declared the law to require a lunch program in every school district. As noted above, the Appellate Division affirmed on the same reasoning. We granted certification on the petition of defendants. 75 N.J. 520 (1977).
At the trial plaintiffs adduced testimony from various school district officials to the effect that in some relatively small districts the operation of the 5% criterion would compel the institution of a lunch program and the corresponding need to purchase equipment therefor notwithstanding the fact that the percentage might subsequently fluctuate below and above the 5% level. In at least one district with more than one school the percentage threshold resulted in a larger number of needy children attending an exempt school than a complying school. However, because of State and federal financial assistance toward school lunch programs, local tax rates would be increased by only a few
cents on the dollar by implementation of such programs in any district.*fn3
The first question engaging our attention is whether there is anyone in the case having standing to raise the question of denial to needy school children of equal protection of the laws. It seems clear that plaintiffs, as taxpayers seeking to invalidate the entire lunch program, do not represent the interests of such children, even though they attack the exemption provision as a step toward their ultimate position in the case. It is therefore doubtful that these plaintiffs have standing to raise equal protection claims of children. Normally an individual will be permitted only to seek judicial vindication of his own rights. Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953); State v. Norflett, 67 N.J. 268, 276 (1975).*fn4
However, we need not resolve the matter of standing here because we find that the activity of the Public Advocate
in the case suffices to place before us the interests of the excluded school children. Furthermore, we conclude that the strong public interest in the resolution of this dispute warrants our consideration of the merits. Busik v. Levine, 63 N.J. 351, 363-364 (1973), app. dism. 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1974).
We thus address the merits of the equal protection attack as outlined above. Defendants defend the exemption provision on the following rationale. While the federal and State statutes look ultimately to the provision of school lunches for all needy children, both statutes, and the federal implementing regulations, contemplate some flexibility in relation to extent of coverage. As amended in 1970, the federal statute provided that "first priority * * * be given to providing free meals to the neediest children" 42 U.S.C.A. § 1758. In this connection the defendants also cite 7 C.F.R. § 210.4a (b) (5) (ii) directing "priority to schools in areas with a high concentration of needy children," as well as such supportive cases as Davis v. Robinson, 346 F. Supp. 847, 857 (D.R.I. 1972); Justice v. Mount Vernon Bd. of Ed., 351 F. Supp. 1252, 1262 (S.D.N.Y. 1972); and Richmond Welfare Rts. Org. v. Snodgrass, 525 F.2d 197, 201-205 (9 Cir. 1975). Thus, argue defendants, the purpose of the State statute may be stated as the provision generally of low cost lunches for children subject to an allowance for minimal local exemptions from mandatory coverage.*fn5 The object of the 5% exemption is to assure that, with due regard for fiscal constraints, lunches will be made available in areas of greatest concentration of need.
In short, the defendants contend that the statute under review passes muster from an equal protection standpoint in that the category of schools exempted from mandatory participation in the program under N.J.S.A. 18A:33-5 bears a rational relationship to the purpose of the act, that being conceived as the provision of low cost lunches to school children generally, with some fiscal leeway as to schools where the concentration of needy children is least. It is notable that neither of the lower courts in this case gave consideration to the stated justification for the classification made by the statute. It is equally apparent that under the view of the lower courts in this case the State has the choice only of a mandatory lunch program for every school in the State or none at all. It has not been argued that the State could not, if it chose, decline to make lunch programs mandatory in any school.
In approaching the equal protection issue here implicated we see no reason to depart from the traditional criterion of rationality of the classification, i.e., whether there is "any conceivable state of facts which would afford reasonable support for [it]." WHYY Inc. v. Glassboro, 50 N.J. 6, 13 (1967) rev'd on other grounds 393 U.S. 117, 89 S. Ct. 286, 21 L. Ed. 2d 242 (1968); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 218 (1960); N.J. Restaurant Assn. v. Holderman, 24 N.J. 295, 300 (1957). The United States Supreme Court has consistently applied this standard in recent years in appraising social-welfare legislation for equal protection validity. Idaho Department of Employment v. Smith, 434 U.S. 100, 98 S. Ct. 327, 54 L. Ed. 2d 324, 327 (1977); Jefferson v. Hackney, 406 U.S. 535, 549, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972); Lindsey v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972); Dandridge v. Williams, 397 U.S. 471, 485-486, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). The rational basis test was applied to an attack upon the implementation of the school lunch program in Briggs v. Kerrigan, 431 F.2d 967, 968-969 (1 Cir. 1970) (upheld disparity based upon whether
school had previously installed kitchen facilities), but cf. Justice v. Mount Vernon Bd. of Ed., supra (351 F. Supp. at 1261-1262).
In particular contexts, however, this Court has in the recent past applied a "means-focused" standard for determining equal protection; i.e., "whether there is an appropriate governmental interest suitably furthered by the differential treatment"; see Bor. of Collingswood v. Ringgold, 66 N.J. 350, 370 (1975) app. dism. 426 U.S. 901, 96 S. Ct. 2220, 48 L. Ed. 2d 826 (1976); Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., 71 N.J. 249, 281-287 (1976), cert. den. 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977). This approach requires more exacting judicial scrutiny than the conventional rational-basis test but less than that where "fundamental rights" and "suspect categories" are involved in the legislation.
We are satisfied that whether the test applied is rational-basis or means-focused the statute before us does not deny equal protection to school children. The financial savings to the State from the exemption amount to about $500,000 (as of 1974). There are also savings to the exempted districts. This, as well as a degree of deference to local autonomy, constitutes an "appropriate governmental interest" ...