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Abbott v. Burke

January 22, 1998

RAYMOND ARTHUR ABBOTT, A MINOR, BY HIS GUARDIAN AD LITEM, FRANCES ABBOTT; ARLENE FIGUEROA, FRANCES FIGUEROA, HECTOR FIGUEROA, ORLANDO FIGUEROA, AND VIVIAN FIGUEROA, MINORS, BY THEIR GUARDIAN AD LITEM, BLANCA FIGUEROA; MICHAEL HADLEY, A MINOR, BY HIS GUARDIAN AD LITEM, LOLA MOORE; HENRY STEVENS, JR., A MINOR, BY HIS GUARDIAN AD LITEM, HENRY STEVENS, SR.; CAROLINE JAMES AND JERMAINE JAMES, MINORS, BY THEIR GUARDIAN AD LITEM,MATTIE JAMES; DORIAN WAITERS AND KHUDAYJA WAITERS, MINORS, BY THEIR GUARDIAN AD LITEM, LYNN WAITERS; CHRISTINA KNOWLES, DANIEL KNOWLES, AND GUY KNOWLES, JR., MINORS, BY THEIR GUARDIAN AD LITEM, GUY KNOWLES, SR.; LIANA DIAZ, AREPORT AND MINOR, BY HER GUARDIAN AD LITEM,DECISION OF LUCILA DIAZ; AISHA HARGROVE ANDREMAND COURT ZAKIA HARGROVE, MINORS, BY THEIR GUARDIAN AD LITEM, PATRICIA WATSON; AND LAMAR STEPHENS AND LESLIE STEPHENS, MINORS, BY THEIR GUARDIAN AD LITEM, EDDIE STEPHENS, PLAINTIFFS,
v.
FRED G. BURKE, COMMISSIONER OF EDUCATION; EDWARD G. HOFGESANG, NEW JERSEY DIRECTOR OF BUDGET AND ACCOUNTING; CLIFFORD A. GOLDMAN, NEW JERSEY STATE TREASURER; AND NEW JERSEY STATE BOARD OF EDUCATION, DEFENDANTS.



On remand from the Supreme Court of New Jersey.

The opinion of the court was delivered by: King, P.j.a.d. (temporarily assigned)

TABLE OF CONTENTS

I - Introduction - 2

II - Procedural History - 3

III - The Remand Order - 22

IV - The State's Presentation on Supplemental Programs - 24

V - The Plaintiffs' Presentation on Supplemental Programs - 61

VI - Analysis of Supplemental Programs Aspect - 96

VII - The Presentation on the Facilities Aspect - 110

VIII - Analysis of Facilities Aspect - 135

Conclusion - 138

Dr. Allan Odden's Report of December 30, 1997 - Appendix A

I.

INTRODUCTION

The New Jersey Constitution mandates the State provide to all students in its public schools an opportunity to achieve a thorough and efficient education. To meet this constitutional obligation, the State currently must assure:

"1) parity between the most wealthy and poorest school districts in per pupil expenditures for regular education; 2) supplemental programs addressing special needs of students in poorer urban districts; and 3) safe learning facilities." Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV).

After a series of legislative acts failed to satisfy these obligations, the New Jersey Supreme Court issued an interim order in Abbott IV to remedy constitutional violations. The Court directed the State to immediately increase funding for regular education in the Special Needs Districts (SNDs) to achieve equality. The Court then ordered the Superior Court, Chancery Division, on remand to examine potential remedial relief involving supplemental programs and facilities needs.

Consistent with the Abbott IV decision, this court appointed a consultant, Dr. Allan Odden of the University of Wisconsin at Madison, to help determine appropriate remedies. The consultant assisted the court in the proceedings and reviewed the record, including the report prepared by the Commissioner of the Department of Education addressing special needs of children and facilities in the SNDs. This opinion presents the remand court's findings, Conclusions, and recommendations for supplemental programs and facilities improvements necessary for educating students in the State's poorer urban districts, based on the testimony of the witnesses and the consultant's recommendations.

II.

PROCEDURAL HISTORY

The New Jersey Constitution guarantees a thorough and efficient educational opportunity to all children in the State who attend public schools. The Education Clause states: "[t]he 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." N.J. Const. art. VIII, 4, Para(s) 1. This provision became the basis for a sustained legal challenge which began over two decades ago.

In 1973 the New Jersey Supreme Court interpreted the constitutional mandate to require the State to provide its children with "that educational opportunity which is needed . . . to equip a child for his role as a citizen and as a competitor in the labor market." Robinson v. Cahill, 62 N.J. 473, 515 (1973) (Robinson I). In Robinson I plaintiffs challenged the State's statutory scheme for financing public schools on the ground that it violated the constitutional requirement. To measure the State's compliance, the Court focused on per-pupil expenditures and found the system unconstitutional because heavy reliance on the property tax fostered excessive financial disparities between school districts. Id. at 520; State School Incentive Equalization Aid Law, L. 1970, c. 234.

In response to Robinson I, the Legislature passed the Public School Education Act of 1975 (1975 Act). N.J.S.A. 18A:7A-1 to -52. In 1976, the Supreme Court found the 1975 Act facially constitutional, if fully funded. Robinson v. Cahill, 69 N.J. 449, 467 (1976) (Robinson V). While the Court acknowledged the importance of appropriating minimum aid on a per-pupil basis, the Court in 1976 considered the funding provision within the context of the entire Act. Id. Thus, the Court switched its focus from equal dollars per pupil to the substantive content of the educational plan.

The procedural history of the case now before this court began in 1981 when plaintiffs filed a complaint in Superior Court, Chancery Division, claiming the 1975 Act violated the Education Clause of New Jersey's Constitution, and the Equal Protection Clauses of the New Jersey and United States Constitutions. The plaintiffs, children from the Camden, East Orange, Irvington and Jersey City school districts, sought a judgment declaring the 1975 Act's funding provisions unconstitutional because they created financial disparities which denied them a thorough and efficient education. Defendants were State officials responsible for administering public education laws and assuring that all school children received a constitutionally-mandated education. On September 30, 1983 defendants filed a motion to dismiss the complaint, contending that plaintiffs had failed to exhaust administrative remedies. The Chancery Division Judge granted the motion on November 28, 1983.

After the Supreme Court issued an order denying direct certification, the Appellate Division reversed the Chancery Division's decision and remanded for a plenary hearing on plaintiffs' constitutional claims. Abbott v. Burke, 195 N.J. Super. 59 (App. Div. 1984). The Appellate Division found the exhaustion of administrative remedies doctrine did not apply because the constitutional question was "beyond the power of the Commissioner to decide." Id. at 74. More specifically, plaintiffs had asked the court to find the Act's funding provisions unconstitutional, not to correct educational deficiencies through increased funding.

The Supreme Court granted defendants' petition for certification. Abbott v. Burke, 97 N.J. 669 (1984). In Abbott v. Burke, 100 N.J. 269 (1985) (Abbott I), the Court recognized the presence of constitutional claims but determined that the appeal presented only the narrow issue of which tribunal should consider the claim initially. However, the Court recognized that the merits of the constitutional challenge influenced the litigation's procedural course. After declaring the 1975 Act constitutional on its face, the Court found the evidence insufficient to resolve the issue of whether the funding provisions rendered it unconstitutional as applied.In particular, the record failed to permit resolution of contested factual matters such as whether: 1) plaintiffs suffered substantial educational deficiencies; 2) the Act's funding scheme resulted in gross disparities among school districts and engendered inequalities in educational resources; and 3) the State's obligation to provide a constitutionally-mandated education to special-needs children could be met only by increasing financial aid to their schools. Id. at 284-86.

In order to create an adequate factual record, the Supreme Court ruled the case should be considered initially by an administrative tribunal with the necessary training, expertise, and regulatory responsibility which could better address the issues of educational quality and municipal finance. Id. at 300-01. Moreover, the ultimate constitutional issues were quite fact-sensitive and could not be resolved absent a comprehensive factual record. Towards this end, the Court modified the Appellate Division's decision remanding to the Chancery Division and transferred the case to the Commissioner of the Department of Education (Commissioner) with the directive to create "an administrative record sufficient to guide the adjudication of the constitutional issues on any future appeal." Id. at 279. The Court ordered the Commissioner, a defendant in Abbott I, to transfer the case to the Office of Administrative Law (OAL) to conduct the initial hearing and fact-finding.

After eight months of proceedings, Administrative Law Judge Lefelt (ALJ) issued recommendations on August 24, 1988. Abbott v. Burke, No. EDU 5581-88 (OAL 1988). The factual findings documented extreme disadvantages and unmet educational needs faced by students in the SNDs. The ALJ concluded the 1975 Act was unconstitutional as applied because its funding mechanism contributed to program and expenditure disparities between property-rich and property-poor school districts. As a result, students did not receive an equal educational opportunity but rather, an opportunity "determined by socioeconomic status and geographic location." Id. at 14.

The then-Commissioner declined to accept the ALJ's recommendations including the factual finding of a strong relationship between property wealth and per-pupil expenditures. The Commissioner faulted the plaintiffs' analysis because it compared the poorest and richest districts, ignoring those districts in the financial "middle." Rather than mandating equal programs and expenditures, the Commissioner interpreted the State Constitution to require only that children receive an education sufficient for them to participate fully in the labor market. The Commissioner concluded the 1975 Act's reporting, monitoring and corrective provisions assured that all students received a thorough and efficient education. Id. at 613-14. If any district failed to achieve the constitutional standard, the Act provided a remedy by giving the Commissioner power to require the district to raise additional funds or to take over operation of the district.

The State Board of Education (Board) adopted the Commissioner's decision, although the Board did recommend corrective legislation to address capital construction needs and ordered strengthening of the reporting, monitoring, and corrective functions. Plaintiffs appealed and the Supreme Court certified the appeal directly. Abbott v. Burke, 117 N.J. 51 (1989).

In 1990 the matter came before the Supreme Court for substantive review. Abbott v. Burke, 119 N.J. 287 (1990) (Abbott II). Plaintiffs again contended the 1975 Act was unconstitutional as applied because its funding provisions created substantial disparities in expenditures and educational input among school districts. The Court agreed but only with respect to a limited number of districts. Specifically, the Abbott II holding applied to twenty-eight poorer urban districts classified within District Factor Groups (DFGs) A and B, referred to as the SNDs. *fn1 Both financial disparities and special needs created inferior educational opportunities that prevented these students from participating fully as "citizens and workers in our society." Id. at 384.

To redress the constitutional deficiency, the Court in Abbott II outlined a two-step approach. First, funding for regular education in the SNDs must be substantially equal to that of property-rich districts without relying upon local budget and taxing decisions. Second, the new legislative plan must provide aid for the special needs of these students, that is, the offering of educational programs in the poorer urban districts with additional elements not needed in the affluent districts. Id. at 374. The Court also recognized that new aid and educational programs could not assure a constitutional education if school facilities provided an inadequate learning environment. The remedy required identification of problems associated with aging, deteriorating buildings and proposal of a plan for their correction.

Plaintiffs contended the 1975 Act as applied was unconstitutional "in toto." Id. at 301. They claimed the entire state educational system failed to provide a thorough and efficient education because of gross spending inequities between the poorer and more affluent districts. The Court, however, declined to interpret the Education Clause to mandate equal expenditures per student. Instead, the State must provide a certain substantive level of education, albeit one that continually changes. Once that level is attained, equality of educational opportunity is achieved regardless of how many districts spend beyond that amount. Further, the Court found no direct substantive evidence to show that a thorough and efficient education did not exist in the middle level DFG districts, including rural poor and older suburban districts.

Children in SNDs, however, clearly received a far inferior education than those in the richer I and J districts. For these students, the Act failed to achieve the constitutional goal. Despite a variety of programs designed to provide aid to these poorer schools, a vast gulf in educational spending remained. Id. at 324-30; see Robinson V, 69 N.J. at 478-90 (describing the Act's funding scheme in detail). Although the 1975 Act empowered these districts to increase their budgets by raising unlimited funds, the scheme relied too heavily on taxing a local property base which invariably had nothing left to give. Abbott II, 119 N.J. at 356-57. Municipal overburden from excessive taxation for other governmental needs prevented these districts from raising substantially more money. Id. at 321 (noting that "these districts are just too poor to raise the money they theoretically are empowered to.").

The 1975 Act also actually exacerbated the funding disparities first addressed in Robinson I. Abbott II, 119 N.J. at 334 (documenting the increasing disparity in expenditures prior to and several years after the Act, even when adjusted for inflation). To assure equality of educational opportunity, the Supreme Court ordered legislative reform to provide poorer urban schools with a guaranteed level of funding which did not depend upon budget or taxing decisions of local school boards. The Court rejected the State's contentions that: 1) educational deficiencies were caused by mismanagement; and 2) increased monitoring under the Act's existing funding mechanism would achieve the constitutional mandate. Instead, the Court recognized a causal relationship between dollars per pupil and educational opportunity. Any remedy implemented by the State must assure that per-pupil expenditures in the SNDs were approximately equal to the average of property-rich districts. Id. at 385.

Nonetheless, the Court recognized that money alone did not guarantee a thorough and efficient education. Any legislative response also must identify programs tailored to meet the special needs of students in the poorer urban districts and provide for their funding. These needs run the gamut from education to basic requirements of food, clothing and shelter. While they are capable of performing as well as other children, special-needs students must surmount serious obstacles stemming from their socioeconomic status and environment. Id. at 340. The 1975 Act recognized the inadequacies of conventional education and made categorical aid available to address special needs such as compensatory education, bilingual education, and education for disabled students. However, the Supreme Court found that such aid failed to address adequately these students' disadvantages. Id. at 374. While recognizing that no amount of money may achieve the constitutional standard, the Court concluded these students were "entitled to pass or fail with at least the same amount of money as their competitors." Id. at 375.

The Supreme Court also addressed the serious problems created by inadequate physical facilities. Many schools in the SNDs were so deteriorated they did not provide a successful, safe learning environment. As observed in Robinson I, 62 N.J. at 520, the State is obligated to make capital expenditures to keep public school buildings in good repair. In 1990, an estimated $3 billion was needed to completely upgrade all State public school facilities. Abbott II, 119 N.J. at 362. The Court recognized that the Legislature was best suited to devise a program to identify facilities problems and bring about their correction. However, if the Legislature failed to do so, the Court would be "obliged under the Constitution to consider the matter." Id. at 391.

Finally, the Abbott II Court declined to rule on plaintiffs' equal protection claim. Plaintiffs argued that property wealth affected what they considered their fundamental right to education. Plaintiffs contended the State could offer no compelling interest to justify determining the level of education based on whether a district was property-rich or property-poor. Previously, the Court had expressed concern that application of the equal protection doctrine to the financing of education would lead to a similar analysis for a vast range of other essential government services that are not provided on a uniform dollar basis. Robinson, 62 N.J. at 492-501. But, the Court declined to address these concerns in Abbott II because it found the remedy "substantially mitigates" the equal protection claim. 119 N.J. at 390. The plaintiffs had no federal Equal Protection Clause claim. See San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). Nor did the Court consider the issue of whether the existence of school districts coextensive with municipal boundaries constituted de facto segregation which created extreme racial and ethnic isolation in the public school system and deprived children of equal opportunity, in violation of the state constitution. See Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996) (so holding in a 4-3 decision).

In response to Abbott II, the Legislature passed the Quality Education Act of 1990 (QEA) which established a new system for distributing State aid to school districts. N.J.S.A. 18A:7D-1 to -37. The QEA attempted to achieve parity in per-pupil expenditures within five years. Unlike the 1975 Act, the QEA's funding mechanism did not rely upon local budgets or taxes but created a complex foundation budget for each district. State aid for regular education was distributed based on a statutorily-set maximum foundation amount, representing the typical per-pupil cost of providing a quality education. The QEA then increased the weighted foundation amount for the SNDs, ensuring they received more aid than the I and J districts until they achieved parity in per-pupil expenditures. Additionally, the QEA created a new aid program for "at-risk" students designed to provide for their special educational needs. Funding for these new aid categories first became effective in 1991-92 and would be fully phased in by the 1995-96 school year.

On June 12, 1991 plaintiffs reacted to the QEA by moving for post-judgment relief in an application to the Supreme Court. Plaintiffs asked the Court to assume jurisdiction and declare the QEA facially unconstitutional. The Court denied the motion in all respects, did not retain jurisdiction, and remanded the matter to the Superior Court, Chancery Division.

In 1993 the Superior Court, Chancery Division, declared the QEA unconstitutional as applied because it did not comply with the Abbott II mandates. Abbott v. Burke, No. 91-C-00150, 1993 WL 379818 at *14 (Ch. Div. August 31, 1993). Chancery Division Judge Levy held the QEA failed to assure that funding for regular education in the SNDs would approximate the more affluent districts within the projected five years. To reach parity, the special-needs weight must be increased by more than 400% by the 1995-96 school year. Id. at *11. However, the QEA left any increases to the discretion of the Governor. The court concluded that it was "almost impossible" to expect the Governor to make a recommendation for such a dramatic increase to the Legislature. Id.

Further, the at-risk aid program failed to meet the goals of Abbott II. First, as with special-needs weights, the QEA arbitrarily determined the sums available; the Legislature did not conduct a study of additional costs associated with these special services. The QEA also used an outdated, prior-year pupil population to calculate the at-risk program funding. Consequently, the total amount of aid available represented only a small portion the court found actually was needed. Additionally, the Chancery Division Judge found the pace of progress in identifying and implementing at-risk programs unacceptably slow. Id. at *14.

On appeal, the Supreme Court affirmed the judgment of the Superior Court, Chancery Division, and held the QEA unconstitutional as applied to the SNDs. Abbott v. Burke, 136 N.J. 444 (1994) (Abbott III). The Court based its decision on the QEA's failure to assure substantially equivalent expenditures for regular education by the richer and poorer districts. In fact, the QEA did not guarantee sufficient funding to the SNDs so they could spend the amounts necessary to achieve parity. Id. at 451. The Court also expressed concern that the QEA failed to include a mechanism to monitor the use of any additional funds and suggested the State consider whether such supervision should be undertaken. Finally, the QEA did not address adequately the special needs of these students. Although required to do so, the Commissioner never conducted a study to identify appropriate remedial programs and their costs.

Recognizing that the Department of Education (DOE) and Legislature could best determine issues related to parity funding and special needs, the Supreme Court affirmed the Chancery Division's decision but did not order any specific remedies. Rather, the Court offered to entertain applications for relief only if there appeared little chance of achieving substantial equivalence in expenditures for regular education or if the educational needs of students in the SNDs could not be met by the 1997-98 school year. Id. at 447-48.

In April 1996 plaintiffs filed a motion with the Supreme Court in aid of litigants' rights. R. 1:10-3. Plaintiffs claimed the State failed to discharge its duties to achieve parity in funding for regular education and to provide supplemental programs necessary for the SNDs. On September 10, 1996 the Supreme Court denied the motion without prejudice because new legislation to address these concerns was under consideration by the Legislature. However, the Court said that if no remedial legislation was enacted by December 31, 1996 plaintiffs could renew their motion. See Abbott IV, 149 N.J. at 160.

Subsequently, on December 20, 1996, the Legislature enacted the Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA). N.J.S.A. 18A:7F-1 to -34. Unlike the previous statutes, CEIFA set academic standards that must be achieved by all students, identified programs to accomplish these goals, provided a funding mechanism to ensure their support, and included mechanisms for enforcement.

CEIFA defined the constitutional requirement of a thorough and efficient education using a "standard-based" approach. These standards provided achievement goals in seven core curriculum areas including visual and performing arts, comprehensive health and physical education, language-arts literacy, math, science, social studies, and world languages. Local school districts were required to develop curricula to achieve these goals. CEIFA scheduled a statewide assessment program over the next six years to measure student progress.

The Legislature based CEIFA's funding provisions on fixed per-pupil costs of delivering the core curriculum content standards and other activities considered necessary for a fundamental education. Unlike the QEA, these "T & E amounts" (thorough and efficient) allegedly were not assigned arbitrarily but correlated with educational achievement. N.J.S.A. 18A:7F-3. The fiscal standards were derived from a hypothetical school district model and actual costs were determined using statewide averages. CEIFA required each school district to raise part of the per-pupil expenditure based on its ability to pay, with the State assuming responsibility for the difference.

To redress the disadvantages of special-needs students, CEIFA provided aid for two programs targeted to school districts with high concentrations of low-income pupils: Demonstrably Effective Program Aid (DEPA) and Early Childhood Program Aid (ECPA), funded at about $100 million and $200 million, respectively. *fn2 DEPA provided aid to school districts for "instructional, school governance, and health and social service programs." N.J.S.A. 18A:7F-18(a). ECPA distributed funds "for the purpose of providing full-day kindergarten and preschool classes and other early childhood programs and services." N.J.S.A. 18A:7F-16.

After passage of CEIFA, plaintiffs renewed their motion for judicial relief. Plaintiffs claimed that CEIFA's funding provisions failed to guarantee them a thorough and efficient education.

Again, the Supreme Court found the legislative response unconstitutional as applied to the SNDs. Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV). CEIFA failed to guarantee sufficient funds to enable students in the poorer urban districts to achieve the requisite academic standards. Also, the supplemental programs did not address adequately their special needs.

The Court did find CEIFA otherwise facially constitutional. The use of content and performance standards embodied the accepted definition of a thorough and efficient education, i.e., to prepare all students with a meaningful opportunity to participate in their community. See Abbott I, 100 N.J. at 280-81. Instead Abbott IV focused sharply upon these issues: 1) whether CEIFA's funding provisions for regular education were unconstitutional as applied to the SNDs; 2) whether CEIFA's provisions for supplemental aid were unconstitutional as applied to the SNDs; and 3) whether CEIFA's failure to address the need for facilities improvements rendered it inadequate as a remedial measure and thus unconstitutional.

The Supreme Court concluded that CEIFA's funding provisions failed to provide the constitutionally-mandated education to students in the SNDs. The model district approach was inadequate to determine the amount of money needed for regular or fundamental education. The hypothetical model neither resembled any of the State's successful districts nor incorporated characteristics of the SNDs. Rather, the model treated all districts the same without considering their diverse environments. Abbott IV, 149 N.J. at 169-72. The Court also rejected the model's basic assumption that all students, if given the same advantages, were equally capable of exploiting them. This premise ignored the factual record showing that students in poorer urban districts required special programs to overcome their severe disadvantages.

CEIFA was unconstitutional as applied because it did not achieve substantial equality in per-pupil expenditures for regular education throughout all districts. Instead, it created a two-tiered system by permitting property-rich districts to raise additional funds through local taxation; property-poor districts which could not increase taxes realistically or effectively were capped at an amount the Court found insufficient. Therefore, richer districts inevitably would spend more per student than the SNDs. Further, CEIFA established fixed per-pupil costs that fell below the amounts assigned arbitrarily by the QEA. The "T & E amount" was set at $6720 per elementary school pupil, only $80 more than the QEA foundation amount; the "T & E amount" for a high school student was even less than the amount the QEA considered necessary for a quality education. Id. at 174.

CEIFA's provisions for supplemental aid also did not address adequately the special needs of students in the poorer urban districts. In Abbott II, the Court required additional aid to the SNDs so their students could achieve the Constitution's command. 119 N.J. at 374. Again, in Abbott III, the Court directed the State to identify and implement special-needs programs. 136 N.J. at 454. Despite judicial emphasis on this remedial component, the Legislature did not undertake a comprehensive study to identify special needs, supplemental programs or their costs.

Rather, CEIFA identified only two initiatives to address special needs. For both DEPA and ECPA, the statute set predetermined amounts for funding. However, the Legislature provided no explanation or analysis of how it arrived at these figures. The Court also expressed concern over implementation. Although CEIFA provided a list of programs which qualified for DEPA, the Act did not require the poorer urban districts to implement them; neither did it provide evidence of sufficient aid to cover their costs. Abbott IV, 149 N.J. at 181. Likewise, districts could apply for ECPA to establish full-day kindergarten and preschool classes but operational plans were not due until the 2001-02 school year. The Court found the delay a "glaring weakness." Id. at 183.

Alternatively, CEIFA allowed the use of ECPA for facilities construction related to early-childhood instruction. Facilities improvements had to be addressed if the State was to meet its constitutional obligation to provide a thorough and efficient education. The 1988 findings of the ALJ documented that many school buildings in the poorer urban districts were deteriorating, unsafe, and overcrowded. Yet, despite repeated admonitions by the Court that adequate facilities were essential, the DOE never studied this problem. See Abbott II, 119 N.J. at 362 ("A thorough and efficient education also requires adequate physical facilities."); Robinson I, 62 N.J. at 520 ("The State's obligation includes as well the capital expenditures without which the required educational opportunity could not be provided."). Absent a detailed study of facilities needs, the Court could not determine the sufficiency of funds available through ECPA to repair or expand existing school buildings to accommodate early childhood programs. Abbott IV, 149 N.J. at 184.

The Abbott IV decision stressed that a comprehensive remedy to assure an equal educational opportunity to students in the SNDs required meaningful legislative and executive efforts. In their absence, the Supreme Court mandated interim judicial measures. See Jean Anyon, Ghetto Schooling 146-48 (Teachers College Press 1997), for general Discussion.

First, the Supreme Court required increased funding of regular education to ensure parity in per-pupil expenditures ($8664 per pupil) between the SNDs and the I and J districts. Further, the State must guarantee that each SND receives these funds by the beginning of the 1997-98 school term. Abbott IV, 149 N.J. at 197. The Court refused to delay implementation of the remedy any longer because the State already had seven years to comply with the 1990 order for judicial relief in Abbott II. Additionally, the Court directed that firm administrative controls accompany this parity funding. Abbott IV, 149 N.J. at 193. Towards this end, the Commissioner must develop administrative procedures to assure the money is spent effectively and efficiently.

Second, the Court ordered the State to implement supplemental programs providing for special needs of students in the twenty-eight SNDs. The Court found that the State gave no heed to Abbott II and Abbott III; it never undertook a comprehensive study to determine these needs, identify appropriate remedial programs or evaluate costs of implementation. Likewise, the State failed to conduct a facilities review even though prior court decisions stressed its importance. Thus, Abbott IV also required the State to assess current facilities needs.

III

THE REMAND ORDER

After holding that CEIFA was unconstitutional as applied to the SNDs, the Supreme Court ordered judicial relief in three areas: parity funding, supplemental programs, and facilities needs. The Court remanded the latter two issues to the Superior Court, Chancery Division to implement the remedial order.

To effectuate the remedy for parity funding, the Court ordered the following:

"1) the State must provide increased funding to the twenty-eight SNDs to assure they spend a substantially equivalent amount per pupil in the 1997-98 school year as the average, actual, budgeted per-pupil expenditures in the I and J districts; and 2) the State, through the Commissioner, must manage, control, and supervise the implementation of this additional funding."

The Court remanded the case to the Superior Court, Chancery Division, to implement the judicial relief involving supplemental programs and facilities needs. While recognizing that educators are most qualified to address these concerns, the Court concluded the judiciary can "provide necessary procedures and identify the parties who best may devise the educational, programmatic, and fiscal measures to be incorporated in such remedial relief." Abbott IV, 149 N.J. at 199.

The Court ordered the Superior Court to direct the Commissioner to:

"1) conduct a study of special educational needs of students attending school in the SNDs and identify appropriate supplemental programs; 2) determine the costs of these programs; 3) devise a plan for their implementation; 4) review facilities needs and provide recommendations to correct them; 5) allow all parties to participate in any proceedings; and 6) prepare and submit a final report including findings, Conclusions, and recommendations along with responses and exceptions of the parties."

The Abbott IV decision also gave authority to the Superior Court to conduct proceedings with the Commissioner and all parties. The Order permitted appointment of a Special Master, with the Supreme Court's approval, to assist with the proceedings and the Superior Court's review of the Commissioner's report. The Special Master could be asked to submit to the Superior Court a report including findings, Conclusions, and recommendations for special programs and facilities needs in the SNDs.

The Remand Order required the Superior Court to render a decision by December 31, 1997 based upon its review of the Commissioner's report, the Special Master's report, and any additional evidence. This decision must include the remand court's findings, Conclusions, and recommendations, including whether or not the Commissioner's proposals complied with the judicial remedies ordered in Abbott IV. The Court later extended the time for decision to January 20, 1998.

IV.

THE STATE'S PRESENTATION ON SUPPLEMENTAL PROGRAMS

The Supreme Court in Abbott IV recognized that equality of expenditures alone does not translate into a comparable educational opportunity for students in the SNDs and property-rich I and J districts. Abbott IV, 149 N.J. at 202. Rather, students who live in poorer urban communities must cope with a wide range of social and economic disadvantages which adversely affect their ability to learn in school. Acknowledging the expertise of educators to determine an appropriate remedy, the Court directed the State "to study, identify, fund, and implement the supplemental programs required to redress the disadvantages of public school children in the special needs districts." Id. at 153.

The State responded by proposing to improve substantially the academic achievement of disadvantaged students through whole-school reform. This approach integrates supplemental programs with the regular education format. Instead of simply adding new programs, whole-school reform fundamentally restructures the core curriculum and methods of instruction to ensure that students achieve a constitutionally-mandated education. Indeed, Commissioner Klagholz testified: "nothing short of dramatic changes in practice will allow us to achieve that goal." Specifically, the State's primary objective was to provide a system of "thorough and efficient" public schools which will enable students in the SNDs to achieve educational success. To define the constitutional guarantee of "thorough," the State Board of Education adopted core curriculum content standards in May 1996. (D-12). These standards set forth the "substantive meaning of education" by defining the skills and knowledge all students must acquire in specific academic subjects and across disciplines to be successful as citizens and workers in the marketplace. The seven content areas include language arts and literacy, mathematics, science, social studies, visual and performing arts, world languages, and comprehensive health and physical education. Students also must be competent in five cross-subject workplace readiness standards. Further, these standards serve as "measures of educational performance and achievement" by directly influencing the State assessment program which tests students at grades four (Elementary School Proficiency Assessment), eight (Early Warning Test), and eleven (High School Proficiency Test). Abbott IV, 149 N.J. at 162.

The Commissioner's report to this court established that during the 1996-97 school year, children in the Abbott districts represented 21.6% of the total student enrollment in New Jersey. These 264,070 students attended 420 schools in the SNDs including 319 elementary, 49 middle, and 52 high schools. This enrollment included 119,066 African-Americans (45%), 98,098 Latinos (37%), 39,355 Whites (15%), and 7,551 Native Americans and Asian or Pacific Islanders (3%). Of these students, 176,362 (about 67%) were eligible for free lunch, 42 U.S.C.A. § 1751 to § 1769(h), and 68,546 participated under federal Title I, 20 U.S.C.A. 2701 to § 3386. A total of 26,245 students participated in bilingual or English as Second Language (ESL) programs. (D-2).

Students in these Abbott schools often failed to attain statewide academic standards. Achievement levels in 148 of the schools in twenty districts fell below State standards in reading, writing, or math for three consecutive years as measured by the eighth grade Early Warning Test (EWT) and the eleventh grade High School Proficiency Test (HSPT). Additionally, eighty-three schools failed to meet the standards on one or more of these subjects for one year and twenty-nine failed for two consecutive years. The State now operates three Abbott districts by takeover (Newark, Paterson, and Jersey City), see N.J.S.A. 18A:7A-34 to -52; five more confront State intervention if they do not develop corrective action plans to improve student achievement. (D-2).

Most recent available test data provided by the State showed marked variations in the passing rates for the EWT and HSPT between students in the Abbott and I and J districts. State assessment data for the March 1996 EWT revealed that 92.3% of students in the I and J districts passed at proficiency levels I or II versus 40.7% of the Abbott students. Further, 49.2% of the I and J students passed at the highest level of proficiency (level I) compared to 6.9% in the Abbott schools. For the October 1995 HSPT, data showed 91.7% of I and J students passed all sections with 94.9% passing reading, 96.5% passing math, and 97.4% passing writing. In contrast, only 41.8% of students in the Abbott districts passed all sections of the HSPT with 55.9% passing reading, 58.7% passing math, and 71.3% passing writing. (D-14). *fn3

In Abbott IV, the Supreme Court ordered the State to assume an affirmative role in addressing educational deficiencies in the SNDs. This directive departed from the State's traditional deference to school districts. The State now recognizes the primary importance of its affirmative responsibility to act over the interests of the districts' local autonomy. The State's new approach will focus upon individual schools, not districts. Indeed, Commissioner Klagholz testified that reform in the Abbott districts must be accomplished school-by-school because "that's where students are educated, in the school. That's where the money has to go. That's where the programs have to be provided." To determine the best strategy to implement these changes, the State conducted a study composed of the following elements:

"1) a survey of existing supplemental programs in the SNDs and an analysis of their effectiveness; 2) community meetings in each district to solicit input about the specific needs of its students; 3) a review of research-based instructional programs currently used in school districts across the country and Discussions with nationally-recognized education experts; 4) comparisons of actual programs and consultations with urban district administrators; and 5) development of cost estimates. The State reported its findings in A Study of Supplemental Programs and Recommendations for the Abbott Districts, November 1997." (D-2).

The Supreme Court's rulings consistently have recognized that students in the Abbott districts have much greater needs than those of students in the I and J districts. Abbott IV, 149 N.J. at 179. Repeatedly, the Court has observed that extreme social and economic disadvantages faced by children in the SNDs created serious obstacles to their achievement of a thorough and efficient education. The Court ordered the State to study the special needs of the twenty-eight Abbott districts and research supplemental programs designed to address those needs.

To comply, the State contacted urban education specialists at the Temple University Center for Research in Human Development and Education (CRHDE). CRHDE conducted a needs assessment survey of the Abbott districts consisting of narrative questions and data matrices. (P-5). The survey used program categories described in Wiping Out Disadvantages (1996), a report actually prepared for this litigation by the Education Law Center, the advocacy group representing the plaintiffs here. (P-4). CRHDE then analyzed the survey results. The findings showed that most Abbott districts already provided a variety of supplemental educational programs and school-based social services. Many districts also incorporated some form of research-based instructional intervention in the elementary schools. Few SNDs, however, implemented these models within the context of whole-school reform. Consequently, there was little or no connection between the supplemental and regular education programs. Further, most of these districts did not evaluate the impact of these supplemental programs on student achievement.

The State did not compile statistics on individual schools in the SNDs. Because the unique needs of disadvantaged students in the Abbott districts were "not unknown" to DOE, the State relied on the large body of national research documenting these special needs. Instead, the State focused its efforts on developing solutions to the complex learning problems of these students. As Commissioner Klagholz testified, DOE did not want to expend its energy on compiling existing statistics but wanted to develop programs to "improve the students and meet their needs based on the body of literature that talks about what those needs are and what kinds of solutions will meet the needs." Research at the national level sufficiently documented the success of a variety of whole-school reform models designed specifically for elementary schools. These schools typically include kindergarten through fifth grade but also can extend from preschool through eighth grade, known as "family schools." Particularly, the State identified these research-based programs: Success for All (SFA) developed by Dr. Robert E. Slavin at Johns Hopkins University; Comer School Development Program developed by Dr. James Comer at Yale University; Adaptive Learning Environments Model (ALEM) developed by Dr. Margaret Wang at Temple University; Accelerated Schools developed by Dr. Henry Levin at Stanford University; and Modern Red Schoolhouse developed by a collaboration of several researchers. The State also examined Reading Recovery which is not whole-school reform but a widely-used instructional program for kindergarten and first grade.

Although research on whole-school reform at the secondary school level is less compelling, the State identified four promising models: the Project on High Performance Learning Centers developed by the Carnegie Council on Adolescent Development; Communities of Authentic Teaching, Learning, and Assessment for all Students (ATLAS); Coalition of Essential Schools (CES); and Paideia. These programs appear to succeed in raising achievement levels of at-risk students through a combination of such strategies as: 1) personalized learning; 2) use of teachers specially-trained for these grade levels; 3) staff training and technical assistance; 4) parental and community involvement; 5) introduction of community social service providers; and 6) site-based management. However, the State did not require implementation of these models because of the absence of sufficient research documenting their impact on secondary education. Instead, the State encouraged middle and high schools in the SNDs to experiment with research-based instructional programs.

For elementary education, however, the State recommended whole-school reform in every school based upon strong empirical support for its likely effectiveness in improving student achievement. The State placed primary emphasis on the elementary level where it claimed the biggest impact could be made. Commissioner Klagholz insisted in his testimony that any programs placed in elementary schools must be research-based, i.e., "those things for which there was the greatest empirical support in terms of their likely effectiveness . . . as opposed to just allowing it to be the result of local consensus of things people might feel good about or want." Therefore, several guiding principles underlie the State's implementation plan. These are: 1) to help all students in the SNDs achieve the new standards; 2) to balance State authority with local school initiative; 3) to focus beyond the district level to the individual school; 4) to promote research-based programs; 5) to take a comprehensive approach which integrates supplemental programs with the regular educational curriculum; 6) to support school-based decision-making; and 7) to develop a system of rewards for administrators, teachers, and parents who help children attain the standards and a system of sanctions when a school fails to make progress in any of the core content areas. A. Elementary and Family School Reform The State's testimony identified SFA and its complement, Roots and Wings, as the most promising of the whole-school reform models. This comprehensive approach to school improvement is based on years of research and effective practices to ensure that disadvantaged students in high poverty-level schools have the best opportunity to be successful. Consequently, the State recommended its implementation in all elementary schools within the Abbott districts. Fourteen of these schools already use this program. However, a school may select another research-based model, especially if one is already in place, provided the school demonstrates the effectiveness of its extant or proposed whole-school program. As noted, other possible models include the Comer School Development Program, Accelerated Schools, ALEM, and the Modern Red Schoolhouse.

Researchers at Johns Hopkins University developed SFA in 1987 to serve students in high poverty schools who are at risk of academic failure. The goals of this program are twofold: 1) to prevent children from falling behind and needing remediation; and 2) to intervene early and intensively if a student is experiencing difficulty in achievement. SFA adheres to these principles by emphasizing reading, writing, language arts, early childhood programs, family support, and tutoring. While SFA's primary focus is on kindergarten through grade five, this program can be adapted for use in preschool, family schools (kindergarten through grade eight), or in traditional middle schools. Pilot programs currently are in operation in seventh and eighth grades in Miami, Albuquerque, and Memphis. Dr. Slavin, Co-Director of Johns Hopkins University's Center for Research on the Education of Students Placed At Risk, testified that by September 1999, SFA will be ready for full implementation in middle schools.

The implementation of SFA substantially changes a school's organization and practices. It affects instruction, curriculum, assessment, early childhood programs, special education, bilingual education, health and social services systems, Title I, parental involvement, promotion or retention policies, and internal school governance. (P-6). This program requires the active participation of all staff members. For these reasons, SFA and Roots and Wings require schools to follow an established set of procedures and guidelines.

Initially, participation in the program must be voluntary and based on informed choice. SFA project staff make presentations at interested schools which may send delegations to visit SFA model sites. Teachers then are given an opportunity to vote by secret ballot on whether or not to participate. This process requires at least 80% of the faculty to "buy in" to the program. The "buy-in" process is essential. It ensures SFA is not imposed on teachers and helps bind them to the program.

The underlying assumption of SFA is that all children can learn to read successfully in the early grades. The program aims to make sure every child becomes an enthusiastic and skilled reader by the end of third grade. *fn4 In fact, results of SFA show that children at the end of first grade read about three months better than children in the control or non-SFA schools. By the end of fifth grade, they read an average of slightly more than one year ahead of their peers in the non-SFA schools. Further, research demonstrates that the positive effects of this program last at least into middle school. (P-6).

SFA accomplishes these results by first emphasizing prevention. Standard program components include: 1) full-day kindergarten (preschool is not assumed); 2) a school-wide ninety-minute daily reading period taught by all reading-certified teachers; 3) eight-week reading assessment periods; 4) a full-time facilitator to work with teachers and coordinate the data from the eight-week assessments; and 5) increased parental education to support students' learning at home.

SFA also requires intensive early intervention. This means: 1) 1:1 tutoring by certified teachers in twenty-minute daily sessions for first through third grade students with serious reading problems; 2) some group tutoring for older children who need reading assistance; 3) a family support team typically composed of a social worker or counselor, parent liaison, principal, and teachers to focus on attendance, coordination of outside social services, parent involvement, and student behavior; 4) continuing professional development including an initial three full days of in-service staff training, a week-long program for the principal or facilitator, and additional time to train tutors and the family support team, plus two-day follow-up sessions; and 5) site-based management.

To fully restructure an elementary school, however, ensuring that every child can read is not enough. Students also must develop skills in higher-order thinking, problem solving, and discovery. Consequently, in 1992, SFA expanded in scope to include Roots and Wings for first through fifth grades. Roots and Wings uses the program components of SFA but adds two major elements.

First, Math Wings is a cooperative learning approach to mathematics instruction which balances basic skills, concept building, and experimentation. Math Wings emphasizes problem solving and reasoning, not rote calculations. This approach is consistent with recommendations made by the National Council of Teachers of Mathematics which has provided the prevailing standard of mathematics education in recent years.

Second, Worldlab is a science and social studies program which strives to make the entire elementary curriculum relevant and useful. In Worldlab, students engage in group investigations and simulations to fully involve them in the subjects they are studying. The science and social studies curriculum in Worldlab can be aligned with the New Jersey standards. Music, art, computers, videos and other technology can be used to solve problems related to the assigned topics. While music, art, and programs for the gifted may be integrated into Worldlab, schools still may want art and music teachers to provide fuller programs.

Together, SFA and Roots and Wings encompass the entire elementary curriculum including special education, bilingual education, and ESL. By using all available resources, SFA focuses upon improving the quality of the whole school rather than creating another program, separate and apart from what the balance of the school is doing. For example, SFA reduces the need for special education services and referrals by raising the reading achievement of at-risk students through 1:1 tutoring, extended reading periods, and family support assistance. SFA's philosophy of intervening early and intensively to keep low-achieving students out of the special education system is called "neverstreaming." Likewise, for bilingual students, SFA materials are available in Spanish or can be adapted to effective ESL strategies.

Consequently, the State adopted SFA's zero-based budgeting approach in which all funding streams currently supporting unrelated programs are combined to create an effective elementary school from the funding mix. These streams include funds earmarked for foundation aid, parity, CEIFA programs, Title I, special education, and bilingual education. By covering all students under its substantive and fiscal umbrella, SFA reduces the need for separate programs or classes.

For the Abbott districts, the State recommended an expanded version of the SFA model in all elementary schools. The State's program included staff positions for a nurse, guidance counselor, technology coordinator, media services librarian, and security guards. Further, the State's model included a half-day four-year old preschool program, smaller class sizes, more tutors, and additional funds for professional development. This comprehensive approach to whole-school reform is consistent with the Supreme Court's order to provide students in the SNDs with more intensity of instruction and a higher quality of educational experience.

The first element in the State's whole-school reform program required a well-planned, high quality half-day preschool for all four-year olds in small classes with a 1:15 teacher-to-student ratio. This recommendation relied on research showing that an enriching pre-kindergarten experience reduces the chances that disadvantaged children will be retained or assigned to special education in the early grades. The State did not recommend full-day preschool classes because research on the long-term effects of halfverses full-day pre-kindergarten programs allegedly was inconclusive.

The State also limited its preschool recommendation to four-year olds. Again, the State claimed that research on the benefits of school for three-year olds was unpersuasive. Further, the State felt its duty to educate children was guided by the constitutional demand which the Legislature had implemented. In New Jersey, the State constitutionally must provide a public school education for children between the ages of five and eighteen years. N.J. Const. art. VIII, § 4, Para(s) 1. New Jersey statutory law only mandates attendance of children between the ages of six and sixteen. N.J.S.A. 18A:38-25. Thus, participation in any early childhood program must be optional, not mandatory. In recommending preschool for four-year olds only, the State also considered the finiteness of budgets and facilities. Nonetheless, under CEIFA, districts with concentrations of low-income pupils greater than 40% can use Early Childhood Program Aid (ECPA) to reach three-year olds provided they first serve all four-year olds seeking enrollment. N.J.S.A. 18A:7F-16.

The State's recommendation for at least one year of half-day preschool for disadvantaged children is consistent with the 1990 National Education Goals adopted by the members of the National Governors' Association. (D-7). The Child Parent Center II study of long-term effects of age variations at entry to preschool "found no advantage for children who entered at age three compared with children who entered at age four." (D-8). Both Dr. W.S. Barnett who testified for the plaintiffs and Wiping Out Disadvantages prepared by the Education Law Center recommended that children in poverty should be provided with at least one year of preschool before kindergarten. (P-4; P-28).

The State would require one teacher and one aide for each half-day preschool class. The estimated budget was $2983 per pupil based on average 1996-97 I and J district salaries of $51,000 per teacher and $15,200 per aide, plus benefits. This amount also covered expenses for employee benefits, materials, supplies, purchased services, and instructional equipment. The cost did not include administration, support or facilities.

Additionally, the State wanted all Abbott schools to implement full-day kindergarten programs as part of whole-school reform, in lieu of the half-day program now provided. There is a significant body of research supporting the benefits of this full-day program in terms of improved student achievement. Specifically, research demonstrates that full-day kindergarten programs generate an immediate boost in intelligence, improve basic skills, decrease student failure rates and below grade-level performance, decrease discipline problems, reduce dropouts, and improve rates of high school graduation. (D-2). To be effective, however, the kindergarten program as well as preschool must use the SFA thematically-based curriculum which balances child-initiated and teacher-directed instruction. The State's annual estimated cost of full-day kindergarten was $4108 per pupil which included annual salaries and benefits for a teacher and aide based on I and J district expenses without including administration, support or facilities.

The State's recommendations and budgets for preschool and kindergarten were consistent with the legislative requirements for ECPA. N.J.S.A. 18A:7F-16. ECPA aid under CEIFA totals approximately $200 million. This aid is distributed to school districts with a high percentage of low-income pupils for the purpose of establishing preschool and full-day kindergarten. These programs must be in place by the 2001-02 school year. Districts first must serve all four-year olds before they can establish classes for three-year olds. However, if three-year old children currently are in such programs, they can remain.

The State's plan also reduced overall class sizes in the primary grades. Studies show that students from low-income backgrounds benefit from reduced class sizes which increase the frequency of teacher-student interactions, reduce distractions, and provide more opportunity for assessment, feedback, and reinforcement. Thus, the State proposed the following reductions: 1) a 1:15 teacher to student ratio for preschool; 2) a 1:21 teacher to student ratio for kindergarten through third grade; and 3) a 1:23 teacher to student ratio for fourth and fifth grades.

Moreover, the State recommended even smaller classes in reading for students in first through third grades. Particularly, research shows students with learning deficits or socioeconomic disadvantages find it difficult to master reading skills in large group settings. Absent significant research to support further reducing class sizes in all subjects, the State determined that reduced class size in reading for the early elementary grades would be most effective in helping students learn to read and attain academic achievement in all subject areas. Indeed, while SFA assumes a class size of twenty-five, Dr. Slavin testified the model operates on the expectation that classes will be reduced significantly during reading periods by using tutors and certified staff.

Therefore, the State adopted SFA's approach of extending instructional time for reading to ninety minutes daily or 30% of the instructional day, instead of the national average of fifty-one minutes as reported in 1994 by the National Commission on Time and Learning. During this common reading period, all students in first through third grades including special education and bilingual or ESL students are regrouped homogeneously by reading performance level into smaller classes with a 1:15 teacher-to-student ratio. These classes are smaller because tutors and other certified staff, such as librarians or art teachers, teach reading during this common period. This cross-grade grouping for reading increases direct instructional time by allowing teachers to teach the whole class without the necessity of dividing students into multiple reading groups with different assignments. The cost of reducing class sizes in first through third grades from twenty-one to fifteen students for ninety minutes daily was $361 per pupil. This figure was based on the I and J district averages for salaries and benefits of 1.5 additional certified tutors for every 250 pupils.

To increase and maintain academic achievement, smaller reading classes must be accompanied by individual tutoring. The State followed the SFA model and proposed twenty minutes of 1:1 tutoring by certified teachers for all students in first through third grades who fall behind their peers in reading. These tutoring sessions are designed to prevent reading failure and are tailored to meet each student's special needs. Additionally, the State's ...


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