On Appeal from Regulations Adopted by the State Board of Education.
Brody, Gaynor and Baime. The opinion of the court was delivered by Brody, J.A.D.
[205 NJSuper Page 545] Each of these appeals, which we now consolidate, is brought by a different association of private schools engaged in the education of handicapped children. The appeals challenge the facial validity of most of the State Board of Education (the State Board) regulations, effective September 4, 1984, entitled "Tuition for Private Schools for the Handicapped," N.J.A.C.
6:20-4.1 through 4.8. The regulations apply only to those private schools to which local boards of education send handicapped children for instruction, pursuant to N.J.S.A. 18A:46-14(g), as the means of satisfying the districts' duty "to provide suitable facilities and programs of education for all the children who are classified as handicapped. . . ." N.J.S.A. 18A:46-13.
The regulations under attack impose stringent bookkeeping and accounting practices (N.J.A.C. 6:20-4.2), require the submission of detailed budgets (N.J.A.C. 6:20-4.3), prohibit inclusion of numerous specified costs in calculating tuition (N.J.A.C. 6:20-4.4), limit a school's profit to 2.5% of its per pupil approved costs (N.J.A.C. 6:20-4.5), permit only non-profit schools to establish a "working capital fund" within their tuition structure (N.J.A.C. 6:20-4.6), and require annual detailed audits by the Department of Education (N.J.A.C. 6:20-4.8). We reject appellants' contentions that the regulations are ultra vires and facially confiscatory.
The Legislature has provided for the education of handicapped children in Chapter 46 of the school laws, N.J.S.A. 18A:46-1 et seq. A private school receiving pupils from a local public school district may not charge the local board tuition that exceeds "the maximum day class cost of education per pupil of children in similar special education classes in New Jersey public schools as determined according to a formula prescribed by the commissioner [of education] with the approval of the state board." N.J.S.A. 18A:46-21.
The Legislature has expressed concern for the quality of education for handicapped pupils as well as its overall cost to the public. Thus the "commissioner with the consent of the State board shall, according to the rules and regulations prescribed by him and approved by the State board, approve all special facilities and education programs which meet the requirements of [Chapter 46]." N.J.S.A. 18A:46-15(a). In further pursuit of quality education for handicapped pupils, "[t]he commissioner may require at such time, and in the manner and
on forms prescribed by him, such educational, financial and statistical reports as he may deem necessary to carry out the purpose of [Chapter 46]." N.J.S.A. 18A:46-19. Finally, the Legislature has given the State Board broad authority to adopt regulations to implement the school laws. N.J.S.A. 18A:4-15 and 16.
The regulations under review reflect the State Board's determination that the quality of education provided by private schools receiving handicapped pupils is directly related to the amount of tuition that the schools spend on approved educational costs. We may not upset that determination because it was reasonably made in the exercise of authority the Legislature has given the State Board. See Campbell v. Dept. of Civil Service, 39 N.J. 556, 562 (1963). The regulations are reasonably designed to carry out that determination and the broader constitutional and statutory goal of offering children a thorough and efficient free education. The regulations, facially at least, must therefore stand. See D.S. v. East Brunswick Tp. Bd. of Ed., 188 N.J. Super. 592, 605 (App.Div.1983), certif. den., 94 N.J. 529 (1983).
Appellants argue that N.J.S.A. 18A:6-4 protects private schools from the kind of governmental intrusions that these regulations impose. That statute, first adopted in 1903, provides in part that "no private school shall be required to report [to the commissioner] concerning its expenses or finances. . . ." The provision is part of Chapter 6 of the school laws, N.J.S.A. 18A:6-1 et seq., that contains general provisions relating to the educational system. By contrast, Chapter 46, on which the regulations are grounded, provides specifically for the education of handicapped pupils and was first adopted over a half century after the adoption of Chapter 6. "When there is a conflict between a general and a specific act on the same subject, the latter shall prevail." W. Kingsley v. Wes Outdoor Advertising Co., 55 N.J. 336, 339 (1970). Private schools that choose to receive handicapped public school pupils under Chapter 46 must therefore relinquish some of the privacy and
control over their affairs that they otherwise would have under the general ...