On certification to the Superior Court, Appellate Division, whose opinion is reported at 195 N.J. Super. 59 (1984).
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[100 NJ Page 277] In this case, we are asked to consider constitutional challenges to the Public School Education Act of 1975; L. 1975, c. 212; N.J.S.A. 18A:7A-1 to -33 (1975 Act). Plaintiffs are children attending public schools in Camden, East Orange, Irvington, and Jersey City.*fn1 Their consolidated action constitutes a
systemic challenge to the State's plan for funding public school education, which, as applied, allegedly violates the thorough and efficient education clause of the State Constitution, N.J. Const. (1947) Art. VIII, § 4, para. 1, and both the State and federal equal protection clauses, id., Art. I, paras. 1, 5; U.S. Const. Amend. XIV. These contentions are denied by defendants, the State Commissioner of Education (Commissioner), the State Board of Education (State Board), the State Treasurer, and the State Director of Budget and Accounting.
In September 1983, following extended pretrial discovery proceedings, defendants filed a motion to dismiss the complaint on the grounds that plaintiffs had failed to exhaust administrative remedies. This motion was granted in November 1983. Plaintiffs filed a notice of appeal, and, following our order denying direct certification, the Appellate Division reversed the trial court's decision, remanding the case for a plenary hearing on plaintiffs' constitutional claims. Abbott v. Burke, 195 N.J. Super. 59 (1984). We granted defendants' ensuing petition for certification. 97 N.J. 669 (1984).
Despite the reach of the pleadings, this appeal presents only one narrow issue. We must determine the tribunal that shall consider the evidence relevant to the parties' contentions and the facts at the heart of this controversy. The ultimate merits of the constitutional claims and defenses are not before us. The merits, however, cannot be ignored, because the nature and scope of the necessary factual inquiry and legal analysis influence the procedural course that will be taken by this litigation.
The framework for plaintiffs' contention is that under the 1975 Act, for the past decade, the State has contributed no
more than about 40% of all school operating costs, and that the majority of all public school expenditures is derived from local property taxes. Referring to the considerable evidence marshalled and adduced in the course of discovery, plaintiffs contend that substantial property wealth disparities exist among school districts, that this has resulted in substantial disparities in per pupil expenditures among districts, and that both of these disparities have widened since the 1975 Act went into effect. Allegedly, the absence of financial resources in property-poor school districts, coupled with the availability of much greater resources for children attending school in average and property-rich school districts, deprive plaintiffs of a thorough and efficient education and deny them equal protection of the law.
Defendants concede the existence of great disparities among school districts in terms of moneys expended on public education, but they assert that any educational inequities within plaintiffs' districts are not financial in origin and not attributable to the funding provisions of the 1975 Act. Instead, defendants suggest that plaintiffs suffer, if at all, due in large part to the local school boards' ineffective management of their education systems, and the failure to invoke statutory remedial provisions.
Defendants' contentions led the Chancery Division to dismiss the complaint for plaintiffs' failure to exhaust administrative remedies. In reversing the trial court, the Appellate Division concluded that plaintiffs' challenges required judicial resolution, and that the Superior Court could consider the defense that non-fiscal factors had caused any educational inequities. We reverse this decision, and determine that the parties' claims should initially be presented to an administrative tribunal. But we also recognize the constitutional dimensions of plaintiffs' complaint, and direct the creation of an administrative record sufficient to guide the adjudication of the constitutional issues on any future appeal.
The State Constitution provides that:
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 this State between the ages of five and eighteen years. [ N.J. Const. (1947) Art. VIII, § 4, para. 1.]
This provision, known as the "thorough and efficient education clause," became the basis for a profound and sustained legal challenge to the State's system for providing public school education, a challenge mounted more than a decade ago, which continues at present.
In 1970 children attending public schools in property-poor districts brought an action that challenged on constitutional grounds the statutory financing scheme for public elementary and secondary schools. Robinson v. Cahill, 118 N.J. Super. 223, 227-29 (Law Div.1972) (Botter, J.) (later history omitted). That scheme, initially established by the State School Aid Law, L. 1954, c. 85, was restructured by the Bateman Act, L. 1970, c. 234. Id. at 229-30. See N.J.S.A. 18A:58-1 to -5.6 (repealed). Under this legislation, the financing of local public school education depended heavily on the financial resources of each local school district, with local taxation furnishing 67% of public school costs. Id. at 231. The resulting disparity among the various school districts with respect to their ability to finance educational programs led Judge Botter to declare the statutes unconstitutionally violative of equal protection guarantees. Id. at 275.
In 1973 this Court affirmed the trial court's ruling, but on the ground that the State's school funding scheme violated the thorough and efficient education clause of the State Constitution. Robinson v. Cahill, 62 N.J. 473, 515-19 (1973) (later history omitted) (Robinson I). The Court explained that the constitutional guarantee of a thorough and efficient education requires "equal educational opportunity" for all children, id. at 513, which "must be understood to embrace that educational opportunity which is needed in the contemporary setting to
equip a child for his [or her] role as a citizen and as a competitor in the labor market," id. at 515 The Court further held that if any school district could not provide sufficient educational opportunity, the State must assure the delivery of the constitutionally-required educational programs and facilities. Id. at 513, 519-20.
The Court emphasized the "significant connection between the sums expended and the quality of educational opportunity." Id. at 481. It also recognized that equality of financial support did not necessarily yield equal educational opportunity, because both financial and non-financial factors affect educational quality. Id.; see also infra at 291-293 (discussing the interplay of financial and non-financial factors). Nevertheless, the Court in Robinson I dealt solely with the financial aspects of the public school funding scheme because the statute itself failed to define the content of a thorough and efficient education and the parties did not show other relevant criteria that could help measure compliance with the State Constitution. Id. at 515-16. In that case, incontrovertible evidence demonstrated that the old funding scheme fostered excessive financial disparities, and thus the Court invalidated the operative statute.
Concluding in Robinson I, the Court requested further argument on remedies. Id. at 520-21. In Robinson v. Cahill, 63 N.J. 196, 197-98 (1973), cert. denied sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973) (Robinson II), the unanimous Court agreed that relief must be prospective, and deferred further action until the Legislature had an opportunity to adopt satisfactory legislation. Later, the Court extended the time for the Legislature to act before the Court would step in and disturb the existing statutory scheme. Robinson v. Cahill, 67 N.J. 35, 37 (1975) (mem.) (Robinson III).
Four months later, in the absence of any legislative action, the Court authorized a provisional remedy to effectuate the constitutional entitlement to a thorough and efficient education. Robinson v. Cahill, 69 N.J. 133, 147-51 (1975) (Robinson IV). The judicial remedy would have required substantial increases in the State's guaranteed minimum levels of available
dollars per pupil. Id. at 149-50. Although the Court again acknowledged the importance of non-fiscal factors, it observed that funding was still an "undeniable pragmatic consideration" and that Robinson I had dealt with the constitutional problem solely in terms of dollar input per pupil Id. at 141 n. 3 The extraordinary action was grounded in the undeniable principle that when legislative inaction threatens to abridge a fundamental right such as education, the judiciary must afford an appropriate remedy: "To find otherwise would be to say that our Constitution embodies rights in a vacuum, existing only on paper." Id. at 147 (quoting Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 197 (1961)).
Before the judicial measure became effective, however, the Legislature enacted the Public School Education Act of 1975. This Act was promptly tested for facial compliance with the thorough and efficient education clause, and, in that context, the Court upheld it as constitutional if fully funded. Robinson v. Cahill, 69 N.J. 449, 454, 467 (1976) (per curiam) (later history omitted) (Robinson V). "Parenthetically," the Court noted "that [the question] whether [the 1975 Act] 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." Id. at 455.
In this case, plaintiffs' constitutional claims, and defendants' defenses, must be understood and related to the antecedent litigation. Plaintiffs' basic assertion is that the 1975 Act has now been funded and, as applied -- that is, as funded -- it is unconstitutional because the financial disparities among school districts remain excessive; the same infirmity of the school funding scheme, declared unconstitutional in Robinson I, has not been overcome, and the State has not heeded the constitutional admonition of Robinson V, 69 N.J. at 464-65, concerning the need for an empirical demonstration of adequate funding under the 1975 Act. Defendants, on the other hand, hearken to Robinson I's observation, reiterated in Robinson V, 69 N.J. at 455-56, that a thorough and efficient education entails, in addition to adequate funding, standards defining a thorough
and efficient education and effective regulatory means to assure that such an education is furnished throughout the state; these standards exist, and defendants contend that a constitutional attack upon the funding provisions of the 1975 Act cannot fully be addressed without a concomitant examination of whether the statutory and regulatory scheme suffices to cure any discovered educational inequities in particular school districts. We must therefore examine the provisions of the 1975 Act and the parties' respective factual contentions regarding these provisions as applied.
The 1975 Act defines the goal of a thorough and efficient educational system: "free public schools shall * * * 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. The Legislature specifically acknowledged the major elements of the State's obligations, as follows:
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 ...