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Levine v. State

Decided: July 30, 1980.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 160 N.J. Super. 591 (1978). (A-55, Levine v. State of New Jersey). On certification to the Superior Court, Law Division, whose opinion is reported at 159 N.J. Super. 166 (1978). (A-61/86/87, Guempel v. State of New Jersey).

For modification and remandment -- Justices Sullivan, Schreiber, Handler and Jacobs. For reversal -- Justice Pashman. The opinion of the Court was delivered by Handler, J. Pashman, J., dissenting.


Plaintiffs in these cases are the parents of two profoundly retarded, school-age children who reside in State institutions for the mentally retarded. These parents are responsible by statute for the costs of institutional care and maintenance provided to their individual children based upon financial ability to pay except as reduced by a small credit attributable to certain specific educational expenses. Plaintiffs contend that this credit is insufficient to cover all educational expenses actually incurred and that, notwithstanding their financial ability to pay, any charges to them for educational services provided to their children are forbidden by the "thorough and efficient" education clause of the New Jersey Constitution guaranteeing a free education to all school-age children. Plaintiffs also assert that their state and federal constitutional rights to equal protection of the laws have been violated because parents with similarly mentally retarded children able to live at home receive from the State comparable educational benefits entirely free of charge. It is further argued that they are entitled to relief under federal legislation dealing with physically and mentally disabled children, which legislation now arguably requires a state to accept full financial responsibility for the total educational expenses associated with the institutional care provided to any such children.

In the Guempel case, the trial court rejected the claims of the plaintiff-parent based upon the State Constitution's education clause as well as his claims, under various federal statutes. 159 N.J. Super. 166 (Law Div.1978). The court did find, however, that plaintiff was entitled on state and federal equal protection grounds to an educational credit equal in amount to the average per capita cost of educational benefits provided to noninstitutionalized mentally retarded children. Id. at 191-193. While on appeal to the Appellate Division, the case was directly certified by this Court pursuant to R. 2:12-1. 81 N.J. 279 (1979). The Levine case was disposed of below on summary judgment in favor of the defendants which judgment was affirmed by the Appellate Division. 160 N.J. Super. 591 (App.Div.1978). We

granted plaintiffs' petition for certification and that case was joined with Guempel for oral argument. 81 N.J. 270 (1979). The New Jersey Public Advocate and the New Jersey Association for Retarded Citizens, Inc. participated as amici curiae in this joint appeal.


It is important in this case to be mindful of what is not at issue. There is no contention made in this litigation that the quality of the residential care provided to Linda Guempel or Maxwell Levine is inadequate or that the educational services available to them are not on a par with those afforded to similarly disabled, but noninstitutionalized, children. Nor does this case present the question of whether parents without sufficient financial means to pay the institutional and related educational costs for the care of their children can nonetheless be required to do so. See N.J.S.A. 30:4-24(7). Rather, what is directly at issue is whether parents who do not otherwise question their moral or legal obligations to support their children and who are fully capable of paying their support can on constitutional grounds be relieved of the costs associated with their total residential care.

For reasons which are fully set forth in this opinion, we conclude on this central issue that such parents with the financial ability fully to support their children are not constitutionally entitled to require the public to assume this obligation. In reaching this conclusion, we recognize that there remain alternative non-constitutional grounds which provide opportunities for further relief under applicable statutory and administrative provisions governing the costs of educational services furnished to institutionalized school-age children.


An understanding of the issues presented in this appeal must commence with a full appreciation of the tragic afflictions of

each of the two children involved. Linda Guempel is a 19-year-old retarded woman who is a resident at Hunterdon State School in Clinton. According to the testimony of her father, Linda began experiencing mild seizures when she was one year old. A specialist, upon examining the infant, determined that she was mentally retarded. For a short time thereafter Linda remained at home, but, eventually her abnormal behavior and inability to be trained had adverse effects upon her family and resulted in her placement in 1965 in a residential school for the mentally impaired in Middletown, Delaware.

Linda remained at this school for five years; despite some achievements in toilet training, feeding, dressing, and rudimentary play, however, Linda's continued hyperactive and self-destructive behavior caused the school to require her withdrawal. She was then admitted to the Hunterdon State School in October 1969. At that time her IQ was estimated to be between 20 and 35; but upon a reevaluation in 1972, she was found to be profoundly retarded based on estimated cognitive functioning (IQ (Slosson) 14, Mental Age: 1 year 8 mos.) and adaptive behavior (Vineland Social Maturity Scale, Social Age: 1 year 8 mos.). A further reevaluation in 1977 showed little, if any, change in Linda's condition since 1972.

At the Hunterdon State School, the approximately 1000 residents are divided among 18 residential cottages segregated by sex and, to some extent, by degree of impairment. As does Linda, all of the residents of her particular cottage exhibit severe behavioral problems. Linda spends the major portion of her time in this cottage and in an adjacent play area. Her participation in the school's curriculum is in a program of the lowest or most basic level that emphasizes development of body awareness, sensorimotor skills and rudimentary self-care skills such as eating, toileting, grooming and dressing. The director of the school's Adaptive Learning Center explained that a large part of that curriculum is similar to that ordinarily undertaken in nursery school or kindergarten.

Maxwell Levine is even more gravely impaired than is Linda Guempel. Maxwell, a ten-year-old crib-confined child, was found in early infancy to have a "diffuse static encephalopathy relating to . . . perinatal*fn1 difficulties . . . associated with significant brain damage." When Maxwell was slightly more than one year old, a physician noted that he remained in "a frog position" with his hands clenched and that he exhibited no control over head movements.

In January 1974 Maxwell was admitted to the nursery unit of the North Jersey Training School at Totowa, a public institution for all levels of mentally retarded persons over five years of age. Maxwell was examined upon his admission by the school's director of pediatrics, who diagnosed the child's condition as "[c]erebral [e]ncephalopathy -- [s]evere -- [d]ue to cerebral anoxia" and noted that "this is a severely brain[-]damaged boy who shows no evidence of any type of awareness or development . . . [and who] will always be a permanent crib case [needing] complete care." A clinical psychologist also examined Maxwell at that time and classified him as profoundly retarded with an estimated IQ of 1. Shortly after his admission, the school's Classification Committee similarly characterized Maxwell's condition as profound mental retardation with an estimated IQ of 1, motor development at the one-month-old level, no vocalization or language skills, and an extremely low adaptive behavior rating. As of March 1979, according to reports made by the school's various service departments, Maxwell had made certain advances despite never having been scheduled as of that time for regular programming. The reports noted, for example, "that he does make sounds, follow objects, and responds to noise"; that while he "demonstrates pleasure" in response to movement, familiar faces and voices "by smiling and moving his head toward the stimulation, he is unable to follow through and complete any movement or activity upon request," and that

while he "attempts to right [his] head" when he is pulled to a sitting position, "head lag" is still present.

The record contains little amplification of Maxwell Levine's daily routine at the North Jersey Training School in Totowa. It appears that while Maxwell is completely confined as a "crib case," some physical therapy and auditory reaction testing have recently begun to be administered. He remains, however, totally dependent upon "[c]omplete attendant care."


Since Linda and Maxwell receive care at State institutions, they both fall within the coverage of the institutional maintenance support program of Title 30 applicable to both mental institutions and mental retardation institutions. See N.J.S.A. 30:4-24; see generally New Jersey Legislative Office of Fiscal Affairs, Program Analysis of Institutional Maintenance Support Payments (1974) (hereinafter cited as Program Analysis). Under these provisions, the costs of maintenance of a patient in a State or county "charitable institution" (including "all necessary expenses incurred by the institution in his [or her] behalf") are to be borne primarily by the patient personally and secondarily by that patient's close relatives with sufficient financial ability to pay. N.J.S.A. 30:4-66. Thus, plaintiffs, as the parents of Linda and Maxwell, were required to pay at least some of the costs attributable to the residential care and maintenance of their children. These required payments form the nub of the instant controversy.

As noted, the institutionalized individual and his or her financially responsible relatives are liable for all necessary expenses incurred for the individual's maintenance. Ibid.; I Program Analysis, supra at 22. The amount actually assessed, however, is arrived at only after a multi-step process involving several governmental agencies, triggered by the admission of the individual to the institution. See N.J.S.A. 30:4-25.1 et seq. After an investigation of family and financial circumstances, the family's required monthly contribution is determined under the so-called [84 NJ Page 243] annual "Treasury Formula."*fn2 N.J.S.A. 30:4-34, 30:4-56, 30:4-60, 30:4-76; I Program Analysis, supra at 20; II Program Analysis, supra at 37. An institutional per capita cost figure, determined by the State House Commission, N.J.S.A. 30:4-78, is, in the case of school-age children, then reduced by an educational credit for certain specific educational expenses, resulting in an adjusted per capita cost figure.*fn3 If the monthly contribution figure based on the Treasury Formula equals or exceeds this adjusted per capita cost figure, the assessment to the individual and his or her family is limited to that adjusted per capita cost, the maximum amount assessable.*fn4 N.J.S.A. 30:4-60. Otherwise, the figure derived from the Treasury Formula becomes the amount assessed to the individual and his or her family. The difference between the adjusted per capita institutional cost and the patient's required contribution in these latter cases is then paid by the State and the individual's county of residence, with the particular allocation between those two entities determined by the individual's payment classification.*fn5

The annual income of Linda Guempel's father in recent years has exceeded $100,000; as a consequence, the Guempels have been assessed the maximum adjusted per capita rate.*fn6 The Levines, on the other hand, have been assessed significantly less than the maximum adjusted per capita rate for the care provided to Maxwell because of their lesser ability to pay. Plaintiffs contend that the residential care provided to their institutionalized children qualifies, at least in part, as "education" within the meaning of the "thorough and efficient" education clause of the New Jersey Constitution, N.J.Const. (1947), Art. VIII, § 4, par. 1. Consequently, they assert initially that the statutory scheme under which they are assessed for this residential care violates the rights of their children to have a free public education as guaranteed by this constitutional provision.



The New Jersey Constitution, N.J.Const. (1947), Art. VIII, § 4, par. 1, states:

The Legislature shall 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 between the ages of five and eighteen years.

The history of the Constitution's free public education clause is surprisingly scant. The clause became part of the State's organic law through an 1875 amendment to the school fund

provision of the New Jersey Constitution of 1844.*fn7 N.J.Const. (1844), Art. IV, § 7, par. 6 (as amended, election Sept. 7, 1875, proclamation Sept. 28, 1875). See R. F. Butts, Public Education in the United States: From Revolution to Reform 173 (1978). This amendment was one of a series of recommendations made by a Constitutional Commission appointed by the governor in 1873. Proclamation by the Governor, April 29, 1873. See Proceedings of the 1873 New Jersey Constitutional Commission as reported in the Trenton True American, July 9-Nov. 18, 1873 (collected and bound). The clause was carried over intact to our State's present 1947 Constitution, N.J.Const. (1947), Art. VIII, § 4, par. 1.*fn8

One important theme does emerge from a review of the concededly limited history underlying this constitutional education clause in terms of its overriding purpose. It is apparent that the framers of this clause believed a constitutional right to an education to be an essential condition of an enlightened democracy and effective representative government. D. Murray, History of Education in New Jersey 29, 38 (1899); R. West, Elementary Education in New Jersey: A History 15-16 (1964); see also N. Burr, Education in New Jersey 1630-1871, at 244-258 (1942). "The importance of education to our democratic society," as "the very foundation of good citizenship," has long been accepted as a basic tenet of American government. Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873, 880 (1954); see Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S. Ct. 1526, 1532, 32 L. Ed. 2d 15, 24 (1972); Tinker v. Des Moines Community School District, 393 U.S. 503, 512, 89 S. Ct. 733, 739-740, 21 L. Ed. 2d 731, 741 (1969); Butts, Public Education in

the United States, supra at 14-15, 45-46; see also Comment, "The Constitutionality of Colorado's School Finance System," 50 U.Colo.L.Rev. 115, 136 (1978). It has been widely acknowledged that an appropriate education for citizens is necessary to democratic self-government, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628, 1637 (1943), and for the full enjoyment of the rights of citizenship, San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 63, 93 S. Ct. 1278, 1312, 36 L. Ed. 2d 16, 60 (1973) (Brennan, J., dissenting) (there is an inextricable link between education and the rights of free speech and association and of participation in the electoral process). See generally J. Conant, Thomas Jefferson and the Development of American Public Education (1963).

The significance of public education in terms of citizenship and representative democracy has been recognized by the New Jersey courts on the relatively few occasions that they have been called upon to construe and explain our Constitution's education clause. In Landis v. Ashworth, 57 N.J.L. 509 (Sup.Ct.1895), for example, the court, in rejecting a claim that a school district did not have the power to tax, addressed the education clause added to the 1844 Constitution by the 1875 amendment and observed that the fundamental purpose of that clause

was to impose on the legislature a duty of providing for a thorough and efficient system of free schools, capable of affording to every child such instruction as is necessary to fit it for the ordinary duties of citizenship . . .. [57 N.J.L. at 512.]

Cf. Commonwealth v. Hartman, 17 Pa. 118, 119-120 (Sup.Ct.1851) (giving similar interpretation to the then-existing Pennsylvania Constitution's "education" clause, Pa.Const. (1838), Art. VII, § 1), cited with approval in Trustees of Rutgers College v. Morgan, 70 N.J.L. 460, 473 (Sup.Ct.1904), aff'd per curiam as modified 71 N.J.L. 663 (E. & A.1905).

More recently, in Robinson v. Cahill, 62 N.J. 473 (1973) (Robinson I), this Court, in the first of a series of precedent-setting

decisions*fn9 dealing with the constitutionality of the State's system of financing public education, held that the then-existing system of school financing was a violation of the constitutional "thorough and efficient" education clause. Id. at 515, 520. Chief Justice Weintraub there touched upon the essential purpose of a free public education in a democracy as embodied in that provision:

The Constitution's ["thorough and efficient"] guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market.

[ Id. at 515.]

This ultimate goal of the constitutional education clause was also recognized and articulated by the Legislature in its enactment of the Public School Education Act of 1975. L. 1975, c. 212, § 1 et seq.; N.J.S.A. 18A:7A-1 to 18A:7A-33. This act states that "[t]he goal of a thorough and efficient system of free public schools [is] 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.*fn10 See Note, "School Finance Reform -- Judicial Compulsion

of Legislative Compliance with 'Thorough and Efficient Education' Mandate," 30 Rutgers L.Rev. 814, 819 (1977).

There can be little doubt that the constitutional provision for public education, designed to serve the needs of an enlightened citizenry in a democratic society, was intended by its framers to be expansive in application. See Robinson I, supra, 62 N.J. at 508-509; Tractenberg, "Reforming School Finance Through State Constitutions: Robinson v. Cahill Points the Way," 27 Rutgers L.Rev. 365, 416 & n.255 (1974). The content of the Constitution's education clause is infused with the dynamism inherent in the education process itself. Thus, advances in the field of education, as well as in allied fields such as medical science and human psychology, progressively create opportunities for ever-greater numbers of children, previously impervious to instruction, to become amenable to education.*fn11 The constitutional education clause possesses the elasticity to envelop any such growth in the capacity and potential of children to absorb and to profit from educational endeavors. Hence, such children, as they generally become educable, also become automatically the beneficiaries of the constitutional right to a free public education. In this sense, the constitutional educational guarantee is self-executing and self-vindicating.

Given this analytic framework, the central issue in this case may now be posed more precisely, viz., whether the State Constitution's free education clause, the essential purpose of which is to maximize public education so that citizens may

"function politically, economically and socially in a democratic society" (N.J.S.A. 18A:7A-4), includes within its guarantee profoundly retarded institutionalized children and the total-habilitation programs entailed in their residential care. We think not.


Society has an obligation to provide for the care of mentally retarded persons. The receipt of such care has been recognized by virtually all of the states, including New Jersey, as a right in such individuals deserving of the fullest protection, with some jurisdictions predicating that right on a constitutional basis and others conferring it by statute. See Levinson, "The Right to a Minimally Adequate Education for Learning Disabled Children," 12 Valparaiso U.L.Rev. 253, 255 (1978) (hereinafter cited as Levinson, "Minimally Adequate Education"); Comment, "The Handicapped Child Has a Right to an Appropriate Education," 55 Neb.L.Rev. 637, 639 n.5 (1976) (hereinafter cited as Comment, "Handicapped Child Has a Right"); see also R. Martin, Educating Handicapped Children: The Legal Mandate (1979). Many courts have, therefore, on either constitutional or statutory grounds, considered the habilitation necessary in the daily care of a profoundly retarded child to be the functional equivalent of an educational right. E.g., Wyatt v. Stickney, 344 F. Supp. 373, 395 (M.D.Ala.1972), modified sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5 Cir. 1974); see Halpern, "The Right to Habilitation," in The Mentally Retarded Citizen and the Law 385 (President's Committee on Mental Retardation 1976); Comment, "Handicapped Child Has a Right," supra, 55 Neb.L.Rev. at 668-672.

Indeed, the progressive and evolutionary nature of the education profession, coupled with a growing understanding of mental disabilities and improved methods for dealing with mentally retarded children, has furnished a strong basis for some courts to determine that all such children are entitled to the rights and benefits of an appropriate "education" fully equivalent to those accorded to non-mentally retarded persons. See, e.g., Armstrong v. Kline, 476 F. Supp. 583, 603-604 (E.D.Pa.1979); Mills v. Board of Educ., 348 F. Supp. 866, 875 (D.D.C.1972); Pennsylvania

Ass'n for Retarded Children (PARC) v. Pennsylvania, 343 F. Supp. 279, 296, 302 (E.D.Pa.1972); In re G.H., 218 N.W. 2d 441, 446 (N.D.Sup.Ct.1974).*fn12

As previously indicated, however, the State's constitutional education clause has a somewhat different focus from the care of the mentally impaired. It is designed primarily to enhance the educational opportunities of children in order to foster the educated citizenry that is indispensable to an effective democratic society. Ante at 245-248. Still, a great number of retarded children, including many with fairly pronounced mental and emotional impairments, have the capacity for improvement through such education and the potential thus to lead constructive social and political lives. Their education is therefore protected fully and completely by the education clause of the Constitution. Comment, "Handicapped Child Has a Right," supra, 55 Neb.L.Rev. at 637 n.2.

Nevertheless, the sad fact endures that there is a category of mentally disabled children so severely impaired as to be unable to absorb or benefit from education. It is neither realistic nor meaningful to equate the type of care and habilitation which such children require for their health and survival with "education" in the sense that that term is used in the constitution. Cf. Department of Mental Hygiene v. Dolan, 89 Misc. 2d 1003, 1006, 392 N.Y.S. 2d 980, 984 (Civ.Ct.1977) ("[e]fforts

to develop the capacities of a mentally retarded child to the fullest extent possible may be education in the philosophical sense but it is not education in the legislative sense"). The constitutional mandate for a free public education simply does not apply to these unfortunate children. See Armstrong v. Kline, supra, 476 F. Supp. at 590-592, 600; Cuyahoga County Ass'n for Retarded Children & Adults v. Essex, 411 F. Supp. 46, 52 (N.D.Ohio 1976) (upholding Ohio's educational statutes excluding from the system of free public schools those mentally retarded children found "incapable of profiting substantially from further instruction"); Dep't of Public Welfare v. Haas, 15 Ill. 2d 204, 213, 154 N.E. 2d 265, 270 (Sup.Ct.1958) ("While this constitutional guarantee [to free public education] applies to all children in the State, it cannot assure that all children are educable. The term 'common school education' implies the capacity, as well as the right, to receive common training, otherwise the educational process cannot function."); In re the "A" Family, 602 P. 2d 157, 163 (Mont.Sup.Ct.1979); Haggerty & Sacks "Education of the Handicapped: Towards a Definition of an Appropriate Education," 50 Temple L.Q. 961, 983 n.125 (1977); Handel, "The Role of the Advocate," supra, 36 Ohio St.L.J. at 355; Note, "Legal Remedies for the Misclassification or Wrongful Placement of Educationally Handicapped Children," 14 Colum.J.L. & Soc.Problems 389, 393-394, 407 (1979); Comment, "Toward a Legal Theory of the Right to Education of the Mentally Retarded," 34 Ohio St.L.J. 554, 555-558, 568-569, 571-575 (1973) (hereinafter cited as Comment, "Toward a Legal Theory").

Concededly, it is difficult to differentiate those mentally retarded children minimally capable of absorbing education and, hence, constitutionally entitled to an appropriate education, from those children so impaired that they cannot be educated at all, in the constitutional sense. Nevertheless, this complex definitional task has been essayed and workable guidelines have been formulated to assist in the classification of those mentally impaired children who are constitutionally entitled to a free

public education. See, e.g., Armstrong v. Kline, supra, 476 F. Supp. at 587-588.*fn13

For present purposes, the Public School Education Act of 1975, L. 1975, c. 212, N.J.S.A. 18A:7A-1 et seq., can serve as the primary exemplar of such standards. That act attempts a comprehensive categorization of mentally-handicapped children, viz:

Each child classified pursuant to section 18A:46-8*fn14 as mentally retarded shall be similarly further identified, examined and classified into one of the following subcategories:

a. Educable mentally retarded children, who are those who may be expected to succeed with a minimum of supervision in homes and schools and community life and are characterized particularly by reasonable expectation that at maturity they will be capable of vocational and social independence in competitive environment[s];

b. Trainable mentally retarded children, who are so retarded that they cannot be classified as educable but are, notwithstanding, potentionally capable of selfhelp, of communicating satisfactorily, or participating in groups, of directing their behavior so as not to be dangerous to themselves or others and of achieving with training some degree of personal independence and social ...

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