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,
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
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.
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.
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.
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 program allowed for small group tutoring of students in the upper primary grades who still read below grade level.
Initially, students are identified for the SFA tutorial program based on informal reading inventories given by the tutors to each child. Subsequently, tutoring assignments are made at eight-week intervals based on teacher recommendations and more formal assessments. The results of these eight-week assessments also are used to change reading groups, to make adaptations in the tutorial programs, and to identify students who need other forms of assistance such as family interventions or screening for vision and hearing problems.
The State assumed an average of 20% of students would require tutoring which allowed for a top rate of 30% for first graders, 20% for second graders, and 10% for third graders. The State estimated the cost of 1:1 tutoring was $4208 per pupil using I and J district averages for salaries and benefits of 3.5 certified tutors per 50 pupils.
The State's plan also required one program facilitator at each elementary school to oversee the operation of SFA. The facilitator would work with the principal to coordinate scheduling, visit classrooms and tutoring sessions, and help teachers and tutors with individual problems both academic and behavioral. The estimated budget for this position was $51,000 plus benefits using I and J averages.
While the mission of DOE is to educate students, the State recognized that whole-school reform must include an appropriate social services delivery system. Students in the SNDs are at a higher risk of school failure because of problems related to poverty including inadequate housing, violence, crime, substance abuse, teenage pregnancy, and parenthood. Often, these children require additional intervention above and beyond the classroom teacher or tutor.
The State appears to recognize that schools must offer health and social support services for this student population to increase the likelihood of academic success. Indeed, CEIFA itself also recognizes this need. N.J.S.A. 18A:7F-18 (Demonstrably Effective Program Aid (DEPA) includes "health and social service programs"). These services can be provided through a variety of models such as New Jersey's School-Based Youth Services Program, family resource centers or community schools. Generally, these programs offer a range of assistance from screening and assessing needs of students to providing either direct services on-site or referrals for physical and mental health, family support and counseling, drug and alcohol counseling, parenting education, and child care. Studies indicate these programs reduce retentions, special education placements, absenteeism, and dropout rates.
In the Abbott elementary and family schools, the Commissioner embraced a social services model based on coordination and referral. In this model, school staff identify health and social services needs of their students, then community resources are utilized to provide those services. In rejecting the model of direct on-site service delivery, Dr. Barbara Anderson, Assistant Commissioner for Student Services, DOE, testified the primary mission of schools is to improve student achievement and not to become experts in social services. While schools should provide coordination of programs, they should defer direct care to those individuals who work in human, health, or community services. Indeed, the basic mission of the State Department of Human Services (DHS) is to address social services needs. This was not the basic mission of DOE. To provide school-linked services, the State determined each elementary school should include a social worker and parent liaison for every 535 students. The estimated cost was $158 per pupil.
The State also recognized the importance of providing teachers and administrators with continuing professional development to improve student performance. Dr. Anderson testified this program was the "critical linchpin" in whole-school reform. To be effective, however, such a program must offer a variety of effective instructional strategies for teaching, classroom management, and assessment designed to help students achieve the higher expectations embodied in the new core curriculum content standards. The State's estimated cost for a comprehensive professional development program as part of whole-school reform was 2% of the district budget for salaries plus substitute costs for six release days for teachers and aides. For elementary schools, this amount is adjusted to include a full-time facilitator and training costs for SFA. The projected per-pupil amount was $398.
Another State goal was to increase the effective use of technology in Abbott classrooms. By integrating computers into instructional programs, students are ensured the necessary resources to meet the newer, more rigorous standards. The proposed cost was $267 per pupil based on a computer-to-student ratio of 1:5 with a five-year replacement schedule, peripherals, software, wiring, and a full-time technology coordinator. At no cost, all Abbott schools will be connected to a high-speed fiber optic network and equipped with an interactive television classroom. Schools also will be charged reduced access fees.
Additionally, these districts will receive $40 per pupil for purchases of hardware and software as part of Distance Learning Network Aid. This aid will enable districts to "link up" to a statewide infrastructure which will facilitate the expansion and enrichment of curriculum offerings for every school. Further, the Educational Technology Training Centers established by DOE in each county of the State will provide professional development opportunities.
To address problems of student disruption and violence, the State's plan required every elementary school in the SNDs to establish a code of conduct defining acceptable and non-acceptable student behavior along with the consequences resulting from failure to comply. The State also recommended that each school employ full-time security personnel and use other protective devices such as metal detectors to ensure safety. The estimated cost of one security guard for every 535 students at an elementary school was $61 per pupil. (This court doubts very much that one security guard per elementary school is sufficient.)
Another supplemental program identified by the State was school-based decision-making. This program builds a sense of local ownership because it empowers principals, teachers, parents, and students to play active roles in educational planning, governing, and budgeting. By transferring significant decision-making authority from local district offices to the individual schools, research shows that school reform efforts are more effective and students' academic performances improve. Likewise, this program increases the involvement of parents in decisions that affect their children. The proposed costs for school-based decision-making, budgeting, and parental involvement were funded in the "base budget." Further, the State indicated it would train people to assemble school-based budgets at no additional cost.
To implement reform at the elementary level, the State presented an illustrative school-based budget based on the individual program component costs mentioned above. Commissioner Klagholz testified, however, that the State does not plan to impose this budget on every school or any particular school. Rather, the State's plan was to evaluate each school to determine existing and needed resources; "nothing short of that is going to allow us to meet the Court's expectations, that we assume an essential, an affirmative responsibility for making these results materialize." Therefore, the State did not ask the Supreme Court to impose the model budget on particular schools but to approve the approach of creating whole-school reform through these illustrative school-based budgets.
The State then assumed that sufficient funds existed in the system to finance whole-school reform. To determine the funding issue, the Commissioner outlined a school-based budgeting process similar to the one DOE implemented in the Newark takeover district. First, the State would examine the practices of a particular school and its finances using DOE program and fiscal review staff. Second, if there were insufficient funds to implement whole-school reform, the State would see if the money was being used in non-productive or counter-productive ways. Third, district budgets would be examined for inefficiencies in administration. Fourth, the State would determine if funds could be reallocated under the authority given by CEIFA and this court's mandate to assume absolute responsibility for implementation of necessary programs. Finally, if the State found no additional funds available, Commissioner Klagholz vowed to seek supplementary appropriations through the normal appropriation process. Therefore, the State did not create a precise formula for funding Abbott school districts. Again, the State's goal was to improve student achievement by empowering the administrative and teaching staffs in local schools with some degree of control over their resources. By adopting school-based budgets, the idea was to ensure that necessary funds would flow through the districts to the individual schools.
Substantively, the illustrative elementary school budget for a school of 584 students in pre-kindergarten through grade five contained cost estimates for the following program components: half-day preschool for four-year olds; full-day kindergarten; average class size of twenty-one students in kindergarten through grade three with fifteen students in preschool classes; ninety-minute daily reading periods for all students in first through third grades in homogeneous classes of fifteen; twenty minute daily 1:1 tutoring by certified teachers for students in grades one through three who are reading below grade level; 298 minutes of daily overall instruction; a full-time facilitator to administer SFA; one family support specialist or social worker and one parent liaison to comprise the Family Support Team and make social services referrals; and substitute coverage for six staff development days for teachers and aides. (D-2, Appendix B).
The total budget for the illustrative elementary school included: 30.5 teachers ($1,555,500); five teacher tutors ($255,000); one principal ($89,400); seven aides for pre-kindergarten and kindergarten ($106,400); three support aides ($45,600); one facilitator ($51,000); one social worker ($51,000); one counselor ($51,000); one nurse ($51,000); one parent liaison ($20,500); one technology coordinator ($51,000); one media services librarian ($51,000); one security guard ($27,900); two clerical employees ($55,800); substitutes ($37,500); and benefits ($454,200). The subtotal for salaries and benefits was $2,953,800. (D-2, Appendix B). These costs were based on 1996-97 averages of I and J districts but then inflated forward to 1997-98 using the consumer price index. To determine salaries for aides, the Commissioner relied on the number used in the CEIFA model. The Commissioner then applied an 18% benefits rate; pensions and social security were not included in the calculations because the State already pays for them directly. The budget assumed all instruction in the seven core curriculum content areas would occur in the regular classroom with only instruction in physical education occurring in a specialized setting.
The budget also included instructional costs for textbooks, materials, and supplies ($105,600). These costs were based on amounts spent in I and J districts. Other budget items were: technology and distance learning ($83,100); equipment ($30,700); curriculum consultants ($ll,600); extracurricular activities ($11,200); professional development ($135,600); and summer curriculum development ($4300). Additionally, allocations for administration included: facilities operation and maintenance ($640,100); small facilities projects ($58,800); supplies ($42,300); equipment ($19,200); purchased services ($68,200); excess cost of food services ($47,300); and miscellaneous ($9000). The costs of operations, maintenance, and food services were based on higher Abbott district numbers because they reflected actual conditions in the SNDs. (D-2, Appendix B).
The total school-based budget for the State's illustrative elementary school was $4,220,800. (D-2, Appendix B). By breaking this number down into per-pupil amounts, Michael L. Azzara, Assistant Commissioner for Finance, DOE, testified the State could extrapolate the cost for a higher or lower student population without qualitatively changing the programs. Revenues to fund this budget are provided under CEIFA, federal aid entitlements, and parity aid, then reduced by the school's proportional share of district office costs and out-of-district tuition for severely disabled students. Where 40% of students were low-income, available revenues were projected at $4,625,416. Where at least 20% of the students were low-income, the amount was $4,272,084. (D-2).
To implement this modified SFA model in all Abbott elementary schools, the Commissioner proposed a "careful and conscientious approach" that assured high quality. Under this process, Commissioner Klagholz testified SFA could be placed in fifty elementary schools during the first year, 100 the second year, and then 150. Dr. Slavin also testified in favor of phased-in implementation. The State would select the first fifty schools based on three criteria: 1) where academic achievement was the lowest; 2) where there was the greatest commitment to change; and 3) where there was an apparent readiness to take on the SFA model.
During the first year, the following SFA components would be implemented in each of the chosen elementary schools: reading; writing; language arts; preschool; full-day kindergarten; tutoring; the extended reading periods; and family support. The State would implement the math component of Roots and Wings during the second year and Worldlab during the third year. B. Middle and High School Reform The State's ultimate goal is to implement supplemental programs within the context of whole-school reform in the Abbott middle and high schools. The State, however, did not recommend this approach for immediate implementation because the research on, and level of confidence in, existing secondary school models was not compelling. No particular whole-school reform model was validated empirically as effective in improving student achievement. Instead, the State's report urged secondary schools immediately to adopt supplemental programs and to experiment, pilot, and evaluate secondary school models of whole-school reform such as the Project on High Performance Learning Centers, ATLAS, CES, and Paideai. (D-2).
The disadvantages of students in the Abbott secondary schools are complex and pervasive. These students are at much greater risk of school failure and dropout than their peers in the wealthier districts. They often must deal with serious problems including substance abuse, disruptive behavior, disaffection, adolescent pregnancy, and parenthood, without adequate support at home. (D-2). For these students, the Commissioner recommended a range of special programs including remedial instruction at a reduced class size of fifteen for students requiring additional assistance, alternative schools, dropout prevention, school-to-work and college transition programs, community services coordinators, and social services.
At the middle schools, the State's plan required 20% of the student population to receive ninety minutes daily of basic skills remedial instruction at a reduced class size of fifteen; at high schools, 20% of the population would receive two periods of remedial instruction each day in classes of fifteen. Otherwise, class sizes were twenty-three at all middle school grade levels and twenty-four at all high school grade levels. While the State did not specify how many additional teachers would be necessary for the supplemental remediation program, Dr. Margaret E. Goertz, a plaintiffs' expert, testified this would require an extra 1.5 teachers per model middle school of 675 students and 2.5 teachers per model high school of 900 students. Dr. Goertz estimated the cost at an additional $143 per pupil, and $193 per pupil,2 respectively.
To combat the dropout rate and improve student achievement, Commissioner Klagholz proposed to provide secondary students in each Abbott district with an alternative school program. Research indicates that such programs increase academic success with their smaller class sizes and individualized focus allowing for greater levels of counseling, parental or family involvement, and instructional support. Further, alternative school programs increase attendance rates, improve basic skills and scores on standardized tests, decrease dropout rates, reduce disruptive behavior, and increase college aspirations. Such programs include work-study opportunities, community service involvement, life-skills training, job search training, vocational education, and personal growth counseling such as anger management, assertiveness training, and social skills. (D-2).
The State's plan required each Abbott district to establish an alternative education program in one of its middle and high schools. The cost for this supplemental program was estimated at $275,000 for each alternative school. (D-2).
The State also proposed that each middle and high school in the SNDs would have a dropout prevention counselor to serve a dual role: 1) to work with students in the alternative education program; and 2) to ensure that adequate dropout prevention programs exist in middle and high schools. The State's illustrative school-based budgets estimated the cost to be $64,500 at the middle school level and $69,400 at the high school level. These salaries were based on I and J averages plus 18% benefits. (D-5A).
School-to-work or college transition programs also were considered supplemental because they responded to unique needs of students in the SNDs. Students with socioeconomic and academic disadvantages often lack the basic skills to support themselves responsibly. Additionally, many of these children do not have access to information on college opportunities or meaningful employment which typically is found in the wealthier districts. For these reasons, the Commissioner proposed to integrate workplace readiness skills and college transitional programs into the secondary school curriculum. Research indicates that such programs lead to increased school attendance, reduced dropout rates, higher motivation to learn, and greater likelihood of pursuing further education. (D-2).
Specifically, these school-to-work and college transition programs would contain the following elements: career majors that combine academic and vocational instruction; work-based learning experiences; connecting activities to match students with employers; and career development to help students become aware of their interests and strengths. These opportunities would be provided through a combination of cooperative education programs, vocational technical programs, school based enterprises, career academies, and youth apprenticeship programs. The Commissioner recommended that each Abbott district implement all of these programs in the high schools using resources presumably present in the regular budget. Dr. Anderson testified, however, that schools must start preparing these students with the skills necessary for work or college transitions as early as kindergarten.
Other supplemental programs designed to improve student achievement were recommended for both elementary and secondary schools. These programs included health and social services, additional security, instructional technology, professional development, school-based decision-making, and parental involvement. The Commissioner proposed to implement them in the middle and high schools with some modifications for the special needs of older students.
Consistent with his recommendation for elementary schools, Commissioner Klagholz wanted secondary schools to implement an appropriate health and social services delivery system. At middle and high schools, the problems of disadvantaged children often are very complicated. Treatment requires a mix of services ranging from primary health care, mental health and family counseling, health education, drug and alcohol abuse counseling, recreation, parent education, employment assistance or even child care for student-parents. To avoid what Dr. Anderson characterized as "mission creep," the State adopted a school-linked services model based upon coordination and referral. Under this approach, the State recommended inclusion of a full-time community services coordinator at a cost of $64,500 for each middle school and $69,400 for each high school. These coordinators would work closely with school resources including the nurse or guidance counselor to identify the kinds of assistance a child or family may need. These coordinators would then either bring into the school, or provide access to, local community agencies better-suited to address those needs.
The Commissioner also recognized that disruptive behavior or violence directly impacted the ability of students to learn. Consequently, the State proposed that all Abbott schools employ full-time security personnel, use protective devices such as metal detectors, and establish codes of conduct. The cost of one security guard for every 225 students in the middle and high schools was estimated at $146 per pupil.
Further, the Commissioner advocated increased use of instructional technology. This supplemental program acknowledged that students in the SNDs have limited or no access to computers in the home. To function in an increasingly technological society, however, these children must develop computer skills. Towards this end, the Commissioner required the Abbott schools to integrate technology into the instructional program at the classroom level. As discussed previously in the elementary education section of this opinion, this technology includes computers, hardware, software, interactive classrooms, educational programming, and a "link up" to the statewide Distance Learning Network.
For secondary schools, the Commissioner recommended a ratio of one computer for every five students with a five-year replacement schedule, peripherals, software, and wiring. However, unlike elementary schools, the State's budget called for two media-technology coordinators in both the middle and high schools, each at a cost of $54,700 and $58,800 respectively. (D-5A). At no cost to the school, the State will connect each school to a high-speed fiber optic network, provide an interactive television classroom, and reduce access fees. Additionally, schools will receive $40 per pupil in Distance Learning Network Aid for purchases of hardware and software. They also will be given professional development opportunities through Educational Technology Training Centers established by DOE in each of the State's counties. The overall cost estimated for this supplemental program was $252 per middle school pupil and $234 per high school pupil. (D-2, Appendix A). The State's plan also provided all staff in Abbott schools with continuous professional development. The purpose was to improve the performance of teachers, administrators, and support staff with continuous training focusing on subject matter knowledge and effective teaching practices. For secondary schools, the cost of professional development was 2% of budgeted average salaries in the I and J Districts plus substitute costs for six release-days for teachers and aides.
Finally, the Commissioner recommended school-based decision-making including school-based budgeting and parental involvement in the secondary schools. This supplemental program was considered an essential component of the State's plan because it provided meaningful school-level involvement and assured funds would reach the classroom. For secondary schools, the costs were proposed to be funded in the base budget for regular education.
To summarize, the State's 1997 study of supplemental programs described a "typical" middle school of grades six through eight as follows: an enrollment of 675 students with 1.5% assumed to have severe learning disabilities and served in out-of-district placement; class size of twenty-three in all grades; ninety minutes daily of basic skills remedial instruction for 20% of the population at a reduced class size of fifteen; and ninety minutes daily of bilingual instruction for 12% of the population. (D-2). The staff would consist of: one principal and one vice-principal ($177,800); 46.5 teachers ($2,543,600); two guidance counselors ($109,400); one nurse ($54,700); one media specialist or librarian ($54,700); one technology coordinator ($54,700); one community services coordinator ($54,700); one dropout prevention counselor ($54,700); four clerical employees ($111,600); one aide ($15,200); substitutes ($22,400); three security guards ($83,700); plus benefits ($503,800). (D-5A).
In addition to salaries and benefits, the budget consisted of curriculum materials and supplies ($130,800); technology and distance learning ($103,400); other equipment ($42,800); curriculum consultants ($14,400); professional development ($63,200); extracurricular activities ($90,800); and summer curriculum development ($4300). Other noninstructional costs were facilities operation and maintenance ($891,800); small facilities projects ($82,000); supplies ($52,600); equipment ($23,900); purchased services ($84,900); food services ($63,800); and miscellaneous ($11,200). The total school-based budget for this model Abbott middle school was $5,500,900. (D-5A).
Likewise, the State's illustrative school-based budget for the "typical" high school included grades nine through twelve with: student enrollment of 900 with 1.5% served out-of-district for severe learning disabilities; class size of twenty-four at all grade levels, two periods daily of basic skills remedial instruction for 20% of the population at reduced class size of fifteen; and two periods of bilingual instruction daily for 12% of the population. (D-2). Staff was composed of: 53.5 teachers ($3,145,800); one principal and two vice-principals ($279,900); four supervisors of instruction ($325,600); four guidance counselors ($235,200); one dropout prevention counselor ($58,800); one community services coordinator ($58,800); two nurses ($117,600); a part-time attendance officer ($14,000); one media specialist or librarian ($58,800); one technology coordinator ($58,800); nine clerical employees ($251,100); one aide ($15,200); four security guards ($111,600); substitutes ($25,700); plus benefits ($690,900). (D-5A).
The high school budget also contained allocations for instructional costs. These included: curriculum materials and supplies ($174,200); technology and distance learning ($137,900); other equipment ($60,100); curriculum consultants ($19,200); extra curricularactivities ($384,300); professional development ($88,700); and summer curriculum development ($4300). Other nonsalary costs were: facilities operation and maintenance ($1,252,800); small facilities projects ($115,100); supplies ($70,200); equipment ($31,800); purchased services ($113,200); food services ($85,100) and miscellaneous ($15,000). The total illustrative school-based high school budget was $7,999,700. (D-5A).
The State then calculated existing revenue sources at the secondary school level. These sources included all aid programs under CEIFA, federal aid entitlements, and parity funds. Reductions were made for each school's proportional share of district office costs, out-of-district tuition for students with severe learning disabilities, and costs for alternative schools. For middle schools, the total available revenue for the school-based budget was $6,161,267 where 40% of the students were low-income and $6,076,892 where at least 20% of the students were low-income. Likewise, the State estimated the total available revenue at a high school with 40% low-income students was $9,063,519; for high schools with at least 20% low-income students, the amount was $8,951,019. (D-5A.)
The State presented the above figures for illustrative purposes only. As reiterated throughout the State's testimony, actual budgets will be calculated school-by-school to account for individual variations and needs. Throughout its presentation, the State endorsed the continuation of so-called "parity" funding to the Abbott districts to eliminate fiscal inequities and continuing deficits and to adequately fund the anticipated school-based budgets. Any excess in the budget would remain in the school.
In Abbott IV, the Supreme Court not only ordered the State to provide costs of educational programs but to ensure, through the Commissioner, that such funding was spent effectively and efficiently. 149 N.J. at 224. To comply, the State reorganized DOE and established two new offices to monitor the activities of the Abbott districts: the Office of Program Review and Improvement (approximate staff of fifty) and the Office of Fiscal Review and Improvement (approximate staff of thirty). DOE also created the position of Special Assistant to the Commissioner for School Improvement to coordinate department-wide participation in the process. Further, DOE's new composition created teams to review budgets and programs of each district to identify reallocations necessary to establish whole-school reform.
Likewise, the State's plan required Abbott districts to develop systems of accountability. First, they must develop three-to-five year schedules for phasing in whole-school reform. These schedules must identify which schools would be affected each year. Second, districts must establish baseline data and identify benchmarks to ensure they achieve the core curriculum content standards.
THE PLAINTIFFS' PRESENTATION ON SUPPLEMENTAL PROGRAMS
Plaintiffs alleged the Commissioner's study did not meet the specific requirements of the Supreme Court's order. They argued the Court drew a sharp distinction between regular and supplemental programs. For regular education, the Court directed the State to provide comparable instructional programs between the property-rich I and J districts and the property-poor, urban Abbott districts, i.e., horizontal equity. The Court, then, ordered the State to identify educational programs especially designed to address the special needs of Abbott students, i.e., vertical equity. Although the wealthier school districts did not require these supplemental or extra programs, they were urged by plaintiffs as fundamental prerequisites to achieving a "thorough and efficient" education in the SNDs.
Supplemental programs provide unique services to disadvantaged children which are "over and above" regular education. These programs attempt to wipe-out learning disadvantages and improve academic achievement levels. Indeed, such initiatives are deemed essential if students in the SNDs are to take full advantage of the regular education programs funded at parity with the I and J districts.
To determine which supplemental programs were necessary, the Court in Abbott IV directed the State, through the Commissioner, to study the special educational needs of students in the SNDs. The State, however, did not perform a comprehensive needs assessment, claiming the problems of disadvantaged students already were well-documented at both the local and national levels. Plaintiffs alleged the State failed to comply with the Court's order to identify those educational programs or services designed specifically to help students in Abbott districts. As Dr. Gary Natriello, a plaintiffs' expert, testified, "the status of being disadvantaged usually comes about because of a whole variety of things. But they appear in different combinations, and they appear in different intensities." Consequently, plaintiffs challenged the State's plan to adopt whole-school reform for two primary reasons. First, the State failed to study the actual needs of these students. Rather, the State relied on illustrative models which, like CEIFA, gave no recognition to the diversity of risk factors at play between and within Abbott districts. Plaintiffs claimed these abstract models were incapable of delivering an equal educational opportunity to children in the poorer urban districts because they did not target remedies with the greatest chance of addressing actual needs. Further, without initial needs assessment, there would be no way for the State to measure future accomplishments.
Second, plaintiffs objected because the State proposed to fund whole-school reform through a combination of existing funding streams without adding new money. Particularly, the State plan would divert regular education funds including the additional $246 million directed to the twenty-six eligible Abbott districts for the 1997-98 school year under court order to achieve spending parity with I and J districts. Plaintiffs argued the regular education funding issue already was settled and could be reconsidered only by the Supreme Court. (P-73). Moreover, plaintiffs relied on the Supreme Court's declaration that supplemental programs represented "an educational cost not included within the amounts expended for regular education." Abbott IV, 149 N.J. at 180 (quoting Abbott III, 136 N.J. at 453-54). Thus, plaintiffs urged, the State could not pay for supplemental programs using parity funds allocated for regular education. Instead, plaintiffs viewed supplemental programs as necessarily an additional cost.
Plaintiffs proposed an alternative approach to urban education based on assessment, research, and practice. This approach combined high quality regular education with research-based supplemental programs designed to address the specific needs of children in the SNDs. The goal was to develop family and community schools in the Abbott districts which would improve achievement levels of disadvantaged students and make significant differences in their education. Plaintiffs' proposal included the following components: full-day preschool for three and four-year olds; full-day kindergarten for five-year olds; class size reductions to an average of fifteen or even below in preschool through third grade for all subject areas; after-school programs for grades one through twelve; summer program for grades one through twelve; school-based health and social services; student nutrition; alternative education programs; school-to-work and college transition programs; security; instructional technology; parent education and involvement; and programs or strategies to improve standards-based regular education.
Plaintiffs identified a full-day early childhood program for three, four, and five-year olds as an essential element of their "new, urban schools." This program would be offered year-round and would include extended-day or wrap-around child care for parents who need to drop-off their children at 7 a.m. and return for them at 6 p.m. After examining the literature on short and long-term effects of similar programs, plaintiffs urged that early, intensive intervention in the lives of Abbott children was necessary to build a solid foundation for their future academic success. (P-26).
Plaintiffs' proposal for more intensive early childhood education seeks to increase school readiness of children in the Abbott districts. This recommendation is consistent with Administrative Law Judge Lefelt's Conclusion in 1988 that [m]any poor children start school with an approximately two-year disadvantage compared to many suburban youngsters. This two-year disadvantage often increases when urban students move through the educational system without receiving special attention. Poor children often do not receive the same verbal stimulation as children in middle class homes. They are not exposed to things like books and blocks, essential for reading readiness. They are often from single-parent households, headed by a mother who is poorly educated. They are exposed to more stress, from street crime, overcrowding and financial problems . . . . Nutrition and health care are also likely to be deficient. [Abbott v. Burke, No. EDU 5581-88 at 28 (OAL 1988) (ALJ Decision) (quoted in substance in Abbott IV, 149 N.J. at 179).]
Dr. Barnett also testified for plaintiffs about the "very large gap" in school readiness between children in wealthier and poorer districts. He noted that disadvantaged students often enter school lacking essential language skills and vocabularies which are prerequisites for literacy. Dr. Barnett then observed that high-quality preschool programs could provide these poor children with the necessary resources to close the gap. Although the State did not study differences in learning readiness, Dr. Anderson acknowledged the importance of a preschool experience for children from low-income families. In her testimony, she referred to research showing these students often lack access to books, enrichment materials, and medical, dental, and social services which facilitate learning. Dr. Slavin also stated: "a middle-class child is much more likely to have an enriched experience as a threeand four-year-old that would be a better preparation for success in school than would be what a poor child would likely experience." To support their recommendation for a longer and more intensive early childhood program than proposed by the State, plaintiffs relied on two longitudinal studies. The Perry Preschool Program, begun in the 1960s, randomly assigned African-American, low-income children in southeastern Michigan to intensive, half-day preschool at ages three and four. (P-28). Two certified teachers taught a class of twelve students in the morning; they spent their afternoons preparing lesson plans and making ninety-minute weekly home visits. Researchers studied the progress of these students until they reached age twenty-seven. Initially, the Perry children ranked at the fifth percentile in terms of school-readiness skills. However, Dr. Barnett testified that early intervention made a substantial difference. The study revealed "strong effects" on school achievement, number of children in special education, high school graduation rates, adult economic success, and involvement in delinquency and crime. (P-29). The high school graduation rate increased from one-half to two-thirds.
The Abecedarian study also demonstrated the importance of early childhood education for low-income, mostly African-Americans from North Carolina. (P-29). This long-term study placed children from approximately four months of age to five years in full-day, year-round child care with an educational focus. According to Dr. Barnett, results compiled when these children were age fifteen revealed much larger effects of preschool than the Perry study probably due to the earlier intervention and greater intensity of the experience. While the Perry Preschool Program yielded gains in achievement and social behaviors, the Abecedarian study also produced permanent gains in IQ of about one-third of a standard deviation, or the equivalent of five IQ points.
Finally, plaintiffs argued their proposal would yield significant educational cost-savings over time. A cost-benefit analysis of the results from the Perry Preschool Program revealed economic benefits of preschool education which were quite large relative to its costs. Benefits ranged from reduced child care costs, reduced costs of a public school education through grade twelve because of lower retention rates from failures, reduced costs of adult education, more college graduates, increased earnings and benefits, decreased costs of crime, and reduction in welfare dependency. (P-28).
Dr. Barnett's cost-benefit analysis of thirty-eight early childhood programs supported these findings. W. Steven Barnett, Long-term Cognitive and Academic Effects of Early Childhood Education on Children in Poverty, Preventive Medicine (publication due March 1998). (P-28). This study examined such outcomes as IQ, achievement, and academic success as measured by special education placement, grade retention, and high school graduation. In addition to improved cognitive development and academic success, Dr. Barnett found the economic return on preschool education exceeded "the average rate of return on investments in the stock market over the last 30 years." (P-28). He then concluded every child living in poverty in the United States should be provided with "at least one year" of quality education in a "part-day preschool education program or a full-day developmental child care program rich in cognitive interactions between teachers and children." (P-28). However, in another paper, Dr. Barnett observed that studies on the effects of age of entry failed to find any significant advantage for children who entered at age three, rather than age four. W. Steven Barnett, Long-Term Effects of Early Childhood Programs on Cognitive and School Outcomes, The Future of Children, Winter 1995, at 42. (D-8). See also Ellen C. Frede, The Role of Program Quality in Producing Early Childhood Program Benefits, The Future of Children, Winter 1995, at 122-23 (finding that variations in duration and intensity across programs are not associated with striking differences in program effects). (D-10).
Nonetheless, plaintiffs recommended an early childhood program with more duration and intensity. While research on this issue may be inconclusive, plaintiffs agreed with Dr. Slavin, the State's expert, that children who attend full-day preschools beginning at age three were more likely to have success in school. Consequently, plaintiffs' supplemental program for three-, four-, and five-year olds included the following components: full-day, year-round school; classrooms of fifteen students; one certified early childhood education teacher and one trained aide per class; extended day care; health and social services; collaborations with Head Start and other community-based agencies and providers; extensive professional development and supervision; and the creation of preschool councils in each district to foster collaboration between different providers of services, design school-level programs, coordinate resources, and oversee implementation and evaluation of educational programs for children under age six.
Before implementing this supplemental program for early childhood education, however, plaintiffs asserted there must be a needs assessment to justify its specific design for the Abbott districts. Dr. Barnett testified that such a study is essential because needs of children "vary dramatically from community to community." The State, plaintiffs claimed, presented no evidence of actual needs of children in Abbott districts for early childhood programs. Dr. Anderson testified she could not determine the current universe of four-year olds needing preschool or the ability of the schools to accommodate all of them. She also could not estimate the number of preschoolers in Abbott districts who currently attend private, community-based programs. Therefore, plaintiffs contended the State must survey each of the twenty-eight SNDs to determine: 1) the number of preschool children; 2) the number of preschool children currently enrolled in school and community-based programs; 3) the quality, costs, and funding of those programs; 4) the availability of child care, health, and other social services for preschoolers; and 5) any barriers to collaboration between Abbott districts, Head Start, and community-based providers.
Currently, every school district in the State receives regular education funding for a half-day kindergarten program at a minimum of four hours. CEIFA allegedly provides $200 million in early childhood program aid (ECPA) "to all school districts with high concentrations of low-income pupils." N.J.S.A. 18A:7F-16. Abbott districts therefore can use ECPA to fund full-day kindergarten and preschool programs. These funds co-exist with other public programs for disadvantaged children such as federal Head Start. Until recently, New Jersey also provided funds to urban districts to implement Good Start, a program developed by DHS in conjunction with DOE to provide educational, health, and social services to children ages three and four. Good Start has been discontinued.
As of October 15, 1996 there were 266,163 students enrolled in the Abbott districts including 1848 in half-day preschool and 2322 in full-day preschool. Enrollment figures also showed there were 7283 students in half-day kindergarten and 15,461 students in full-day kindergarten. (D-15).
Plaintiffs estimated the cost of one year of full-day preschool would equal the average amount currently spent by the I and J districts for an elementary school pupil, $7900. Plaintiffs said this figure must then be increased by the amount necessary to reduce class size to fifteen, include wrap-around child care, extend the school year to fifty weeks, and provide nutrition, health and social services. Dr. Barnett estimated costs between $9,000 and $14,000 per pupil.
Assuming the number of three and four-year old students each would approximate the 22,744 kindergarten students enrolled in Abbott districts as of October 15, 1996, Dr. Goertz multiplied 44,000 total students by the figure of $12,000 per pupil. (D-15). She derived an estimated cost of $528 million for comprehensive full-time preschool for three and four-year olds. (P-67). This amount could be reduced by using existing community facilities for child care, Head Start, and local health and social services programs depending upon the findings of the needs assessment. This total did not include costs for such program components as preschool councils, statewide certification for teachers and administrators, statewide accreditation for early childhood programs, or continuing training of teachers and aides.
Dr. Goertz then calculated the cost of full-time kindergarten. First, she multiplied 22,744 students times the same per-pupil cost of $7900 and arrived at $179.7 million. Second, she estimated that 433 additional teachers would have to be hired if class sizes were reduced to fifteen students. Using an average starting salary of $40,000 plus 18% benefits, she determined the program would cost an additional $20.4 million. (P-67). Therefore, Dr. Goertz's total estimated economic cost of plaintiffs' recommended early childhood program for three, four, and five-year olds was $728 million less of course, the experts' estimated long-term benefits generated by these programs, which could exceed $100,000 per child, potentially millions of dollars, a consideration when weighing social costs. This is a $528 million net expense, allowing for the $200 million ECPA funds already committed by CEIFA. This probably could be reduced further by Head Start and other government preschool money already available.
Plaintiffs also proposed to reduce class sizes in all subjects to an average of fifteen students for preschool, kindergarten, and grades one through three. This recommendation responded to evidence showing that minority, inner-city children benefitted academically and socially from more direct and concentrated instructional time. Particularly, smaller classes allowed teachers to use more flexible teaching strategies, gave them more opportunities to respond to the special needs of their students, and reduced discipline problems.
An experiment conducted in Tennessee documented the importance of reduced class sizes in the early grades, especially for disadvantaged, nonwhite students. This study, referred to as Project Star (Student Teacher Achievement Ratio), began in 1985 and involved seventy-nine schools across Tennessee including urban, suburban, and rural. Over 10,000 students in kindergarten through third grade were assigned at random to a small class (thirteen to seventeen pupils), a regular class (twenty-two to twenty-six pupils), or a regular class with a full-time teacher's aide. Teachers also were assigned at random to the class groups and given no special instructions. After two years, the effect of smaller class size on the achievement of African-American children was double that of white children.
After four years, results showed students in smaller classes did significantly better on achievement tests than their peers in the comparison classrooms. (P-4). Other primary findings included: 1) the benefits were the same for boys and girls; and 2) in each grade, there was a greater small-class advantage for minorities or students attending inner-city schools. (P-33).
In the second phase of the Tennessee project, the Lasting Benefits Study, researchers followed these students after they returned to regular classes in fourth grade. The fourth and fifth graders who had been in the smaller classes scored higher on achievement tests than their counterparts. In fact, the small-class advantage continued through at least seventh grade. (P-33). Further, students who had been in small classes from kindergarten through third grade did significantly better in behavior ratings than students in regular-size classes. Small-class participation produced long-term social benefits by increasing student initiative-taking and decreasing non-participatory behaviors (disruptive, inattentive or withdrawn).
While the Tennessee experiment showed small classes were more effective academically than larger classes in the elementary grades, questions still remain about long-term consequences (after eighth grade). Unfortunately, research on the effects of small classes in the upper grades is "fragmented and even contradictory." Jeremy D. Finn, Class Size and Students At Risk: What is Known? What Next?, prepared for The National Institute on the Education of At-Risk Students, Office of Educational Research and Improvement, U.S. Department of Education, December 1996, at 30. (P-34).
Nonetheless, certain general observations can be made on the average effects of class sizes. First, the "effect size" at the end of kindergarten amounted to about one-month; this means children in small kindergarten classes tended to finish the year with a one-month advantage in terms of academic performance. Second, the "effect size" increased to two months in each subject area at the end of first grade and remained constant through sixth grade. Third, Dr. Finn said that "effect sizes" increased noticeably at the end of seventh, eighth, and ninth grades. In Dr. Finn's opinion, the average advantage in these upper grades could be as large as six months of a ten-month academic year and perhaps as large as eight to ten months for minority students.
More research would be helpful on the overall benefits of reduced class size compared to cost. Indeed, the expense of additional teachers and classrooms severely limits the implementation of smaller classes. Even Dr. Barnett admitted on cross-examination he could not state with certainty that gains produced from the proposed reductions would be sufficiently large when compared to the costs. He said methodological research difficulties hinder any meaningful cost comparisons between general reductions in class size and comprehensive approaches used by other instructional strategies which reduce class size, such as SFA.
Plaintiffs recognized any class-size reduction program must be implemented carefully to ensure the special needs of Abbott students were met in the most cost-effective manner. First, there must be sufficient numbers of qualified teachers, aides, and materials. Second, there must be adequate classroom space. To determine actual requirements, the State must perform a needs assessment including: 1) average class sizes in the I and J districts for kindergarten through third grade to identify the class size to be supported by regular education funding; 2) the difference between the I and J average class size and fifteen students using actual enrollments in the Abbott districts to establish the number of additional classrooms and teachers; 3) the number of students in each grade; 4) the availability of existing and temporary classroom space in the Abbott schools; and 5) the difference between additional classrooms needed and availability of space.
Final program costs would depend upon the results of the needs assessment. Plaintiffs, however, offered a general estimate based on the current enrollment of 70,689 Abbott students in grades one through three. (D-15). Assuming the current, average class size is twenty-one, Dr. Goertz determined that an additional 1346 teachers would be required if class size was reduced to fifteen students. Next, she multiplied 1346 by an estimated salary of $40,000 (anticipated starting salary for a new teacher) plus 18% benefits to arrive at a total of about $63.5 million for teachers excluding facilities or other supporting costs. Funding for class size reductions could be distributed to the Abbott districts through Demonstrably Effective Program Aid (DEPA). N.J.S.A. 18A:7F-18 (allegedly providing about $100 million in the 1997-98 school year to districts with greater than 20% low-income students for instructional, school governance, and health and social services programs).
Plaintiffs' plan also stressed the importance of extending the school day for students in the Abbott districts. This supplemental program gives disadvantaged students a structured alternative to unsupervised after-school hours. In fact, a recent survey of six SNDs revealed all had implemented after-school programs which provided a mix of curricular and extracurricular activities. William A. Firestone, Margaret E. Goertz, and Gary Natriello, From Cashbox to Classroom: The Struggle for Fiscal Reform and Educational Change in New Jersey 134-35 (Teachers College Press 1997). (P-36). For children whose families are not supportive academically, these extended-day programs provide homework assistance, tutoring in specific subjects, and more access to educational resources such as computers and libraries. In addition to extending the instructional day, these programs offer recreational opportunities, social support services, health services, and community outreach programs including parent centers. Some schools even open their doors earlier in the morning to establish free breakfast programs for children who qualify because of low family income. While these extended-day programs are designed to meet the needs of at-risk students, similar programs now exist in non-Abbott districts, as part of regular education.
Dr. Natriello, a co-author of From Cashbox to Classroom, testified in support of plaintiffs' recommendation to extend the school day in the Abbott districts. Dr. Natriello stressed the importance of extending and expanding the learning experience for disadvantaged students. Specifically, these students tend to lack the family resources to engage in learning beyond the school day. Further, their communities cannot provide them with the range of extracurricular experiences available in wealthier I and J districts. Consequently, poorer urban children often spend their after-school hours engaged in nonproductive and sometimes undesirable behaviors. Thus, by using existing facilities and coordinating after-school classes with the regular education curriculum, extended-day programs provide students with the supervised, direct support they need to attain the core curriculum content standards.
The State's proposal did not recognize extended-day programs as necessary interventions. While testifying for the State, Dr. Slavin admitted their potential effectiveness but noted "simply making the day longer in itself has not been shown to have much of an impact on achievement." Nonetheless, Dr. Slavin later said on cross-examination that a study in Memphis showed that children in SFA schools actually received an additional benefit from an extended-day program. This tends to support plaintiffs' position that after-school programs which are coordinated with the regular education curriculum can prove effective in improving student achievement.
Plaintiffs recommended extended-day programs for all elementary, middle, and high schools in the Abbott districts. These programs contained both instructional and recreational components. To determine actual costs, plaintiffs contended the State first must complete the Court-ordered study of actual needs in each district so that appropriate after-school programs could be designed. However, plaintiffs suggested a typical program would consist of three extra hours of activities each day for five days a week over thirty-six weeks which is the length of the school year. For a model school of 500 students, Dr. Goertz estimated 60% of students in grades one through twelve would attend; although, she admitted that this participation rate was "more anecdotal than anything else." Total program costs then were calculated based on the participation of 141,013 Abbott students in grades one through twelve. (P-71).
Using union rates which teachers are paid in Philadelphia, Dr. Goertz estimated program costs would include salaries for two teachers at $25 per hour each, three recreation aides at $10 per hour each, ten student or practice teachers at $7 per hour each, and one custodian at $15 per hour. Benefits were calculated at 18%. Materials were estimated at 30% of salaries and fringe benefits. Dr. Goertz then arrived at an approximate per pupil figure of $455 and an overall program cost of $64.2 million. (P-70; P-71). Plaintiffs claim this money should be provided to the Abbott districts through DEPA.
Plaintiffs also recommended that schools in the Abbott districts provide mandatory summer school programs. Research has suggested that improvements in achievement levels are related to the amount of time spent on learning. (D-4). Studies also have indicated that students from low-income families typically lose more ground over the summer than do advantaged students, especially boys. Dr. Barnett suggested this gender difference may exist because boys spend less time in the house during the summer and lack the parental interaction which stimulates language development and learning. More significantly, this summer learning-loss tends to be cumulative so that the gap grows greater every year. The typical disadvantaged student cannot make up this difference during the school year. Extended term or summer school provides children in the SNDs with structured educational programs which improve their academic performance by increasing their exposure to instruction and sustaining their gains over the summer. Additionally, summer programs provide a socially acceptable alternative to unsupervised vacation time. This latter reason takes on increased importance as welfare reform returns more parents to the workforce with its concomitant effect on the supervision of children in those families.
Again, the State did not include a summer program as part of its whole-school reform. However, the Commissioner did not study actual needs of disadvantaged children for such a program or present evidence that summer school was ineffective or unnecessary. Dr. Natriello testified that his research for From Cashbox to Classroom revealed there was good student attendance in summer schools. However, he noted these programs frequently were eliminated or severely reduced as other demands competed for limited urban school budgets.
Plaintiffs recommended that summer academic programs be offered to all students in the Abbott districts from grades one through twelve. To be effective, these programs must become permanently institutionalized to attract high-quality teachers and avoid the stigma of becoming a penalty for students who failed classes during the school year. For students in grades one through ten, programs would combine instruction, recreation, and nutrition. For students in grades eleven and twelve, programs would consist of academics and work-study opportunities with pay. For these older students, the offer of jobs in return for extra schooling serves as inducement for their participation in the program.
The calculation of per-pupil and per-program costs for this supplemental program again depended on the results of an initial needs assessment. After determining student needs in each district, appropriate summer programs can be designed. At that point, costs of the different components can be determined. These amounts can factor in additional expenses for staffing, materials, and facilities as well as such cost savings as fewer student retentions.
Because of the State's decision not to conduct such a study, plaintiffs offered their sample budget for an illustrative summer school program. For grades one through ten, plaintiffs proposed a program lasting six hours, five days a week for eight weeks. This program was designed to serve 60% of the students in the model school of 500. Budget items included: one program coordinator; fifteen teachers; fifteen recreation aides; five student teachers; fringe benefits; and materials. Dr. Goertz testified the overall cost would be $736 per pupil for a total amount of $91 million. (P-70; P-72).
The configuration differs for grades eleven and twelve because these older students would receive four hours of instruction and anticipate four hours of employment. Here, plaintiffs assumed stipends would be paid partly by the program and partly by the employer. This program also would run five days a week for eight weeks and would serve 60% of all eligible students; although, Dr. Goertz admitted she actually computed these figures using less than 60% attendance to account for alternative job opportunities available to special education students. Budget items included: one program coordinator; fifteen teachers, fifteen practice teachers; five recreation aides; fringe benefits; materials; and a $2 program share of the stipend. Using the same percentages of fringe benefits (18%) and materials (30% of salary and benefits), Dr. Goertz arrived at a per-pupil cost of $811 for a total amount of $11 million. (P-70; P-72). The overall cost for an extended term program was estimated at $102 million.
Another substantial difference between the State's and plaintiffs' proposals was in the area of health and social services. However, both parties recognized the need to address these concerns. The Commissioner in his report acknowledged that low-income families "often live in communities that have weakened infrastructures which pose a number of problems for families requiring health and social services which may not be available or, when available, are not accessible." (D-2). The State, however, did not study the actual needs of Abbott children or assess the availability and quality of existing community resources to service them. Rather, Dr. Anderson testified that such an assessment would be undertaken if the whole-school reform approach was accepted by the Court.
Plaintiffs objected to the State's proposal to refer Abbott students to community health care providers and social service organizations. (D-2). Specifically, plaintiffs contended a referral-based system failed to: 1) guarantee children actually received such services; 2) resolve issues related to transportation, family availability, and hours of operation; 3) assure problems would be addressed quickly after their identification; 4) recognize that fewer services were available in poorer communities; and 5) reduce the likelihood of inadequate service and absence of case management.
Instead, plaintiffs recommended bringing health and social services into the Abbott schools. This supplemental program could be funded under the leadership of DOE and would address those non-cognitive needs of students which affect their readiness to learn. On-site clinics would remove obstacles to academic achievement caused by unmet health and social service needs. They would include such services as physical and mental health care, dental care, health education, individual and family counseling, drug and alcohol counseling, parenting education, and child care, where appropriate. These school-based centers would: 1) give teachers more time to educate; 2) shorten the time between identification of a problem and access to services; 3) reduce absenteeism; 4) limit the problem of unavailability of community services; 5) address the health needs of uninsured students; 6) prevent more serious health and mental problems; 7) reduce expensive hospital emergency room admissions; 8) maintain patient confidentiality; and 9) ensure access to basic medical, dental, and other health care essential to achieving early and sustained success in school.
Plaintiffs based their recommendation on programs currently operating successfully in the Abbott districts and elsewhere in this country. Lawrence E. Gottlieb, senior program officer at the NBI Health Care Foundation (NBI Foundation) in Roseland, New Jersey, testified the Robert Wood Johnson Foundation identified 900 school-based health care programs in the United States as of "right now." In fact, Gottlieb indicated the idea of providing on-site health care services to school children was growing "pretty rapidly." Many of these programs were based on partnerships between community service providers and schools.
For example, the NBI Foundation worked closely with the Newark Public Schools (a State-run district) and Saint Barnabas Health Care System which includes the Newark Beth Israel Medical Center to create a school-based health center at the George Washington Carver Elementary School. Carver is a kindergarten through grade eight family school of 1100 students located in the South Ward of Newark. The on-site center, scheduled to open in January 1998, will use the existing school nurse as the "gatekeeper" to make initial evaluations. Proposed school-based staff include a full-time clinic director, full-time nurse practitioner, part-time physician, full-time dental hygienist, part-time dentist, and a full-time social worker. Optional health care professionals such as nutritionists and health educators will be added as needed. (P-40). While the NBI Foundation will provide the financial resources to initiate the program, Gottlieb testified that in-kind resources will be contributed by the Newark Public Schools and Saint Barnabas Health Care System. Reimbursements also will be pursued through Medicaid, managed care, and charity care. The total program budget is estimated at $552,700 including salaries, benefits, administrative costs, supplies, equipment, marketing, architectural fees, renovation costs, and furnishings. (P-41). After subtracting start-up costs, this budget suggests the annual operating cost at the Carver School should be in the vicinity of $397,000. However, the NBI Foundation will reevaluate funding for the program "year to year." Edward Tetelman, Assistant Commissioner for Legal and Regulatory Affairs, DHS, testified that fourteen Abbott districts had implemented the School-Based Youth Services Program (SBYSP). This program, developed in 1986 by DHS, under then-Governor Kean's administration, represented the first statewide effort in the country to provide adolescents with convenient access to health and social services. Only applicants that received support from a broad coalition of local voluntary and public agencies could apply for the $250,000 grants; communities with extensive teenage problems received priority for approval. (P-53). SBYSP supported projects offering a range of services including health care, mental health and family counseling, health education, drug and alcohol abuse counseling, crisis intervention, educational remediation, employment services, training and placement, parenting education, and recreation. (P-40). Other services such as transportation, teen parenting, family planning, child care, and nutritional counseling were implemented on an as-needed basis. Grants from DOE and the Department of Health also could be used to supplement the core services. Individual sites with this program have reported reductions in dropouts, suspensions, teen births, and incidents of violent behavior. (P-4).
Plaintiffs' proposal to establish school-based health and social services emphasized the importance of long-term funding commitments. While applauding the collaborative efforts of private and public partnerships to establish on-site health care and social services, plaintiffs noted such initiatives could disappear if private foundations lose interest or grants expire. For example, Leslie Morris, project coordinator of the Adolescent Center at Snyder High School in Jersey City, New Jersey, testified that the Center opened in March 1988 under the auspices of a grant from the Robert Wood Johnson Foundation. Initially, the Center provided a full, comprehensive health program including primary health care, dental care, reproductive health services, mental health services, diagnosis and management of chronic problems, laboratory tests, and prescription services. When the grant expired in 1993, the Center had provided services to over 6,000 students who made about 18,000 patient visits. Subsequently, the Jersey City Board of Education funded the program at $100,000 with the difference coming from in-kind services and Medicaid reimbursements. However, in 1995, the Center lost its ability to provide primary health care services because it no longer could bill Medicaid directly. Attempts to restore these services through contractual arrangements with managed health care organizations or private foundations have not met yet with success.
Plaintiffs also questioned the sufficiency of funds under the DHS program. As Assistant Commissioner Tetelman testified, the "flat" budget for this program was $6 million when it began in 1986 and currently is $7.1 million. The relatively flat legislative appropriation reflects that increased funding for school-based youth services is recognized but is not a top priority at DHS. Consequently, over the past decade, only a small percentage of potential applicants have received funding for this program.
Because of limited DHS funding, plaintiffs recommended that DOE fund school-based clinics to address the health and social services needs of students in the SNDs. Each school in the Abbott districts should receive $300,000 based on the current cost of operating the DHS school-based youth services program. The estimated total cost of establishing these programs in all 420 elementary, middle, and high schools is $126 million. (P-70). Plaintiffs claimed this amount could be offset by funds already appropriated for the SBYSP. Also, plaintiffs estimated approximately 20-30% of program costs could be recovered through reimbursement for health services provided to students from medicaid, health maintenance organizations and charity care.
However, plaintiffs alleged particular program components could not be determined until the State conducted a needs assessment of each individual school and its community. In particular, the State must determine the social and health conditions of students served, the numbers of students involved, the availability and quality of existing community health and social services providers, and need for additional space. Depending on the findings, plaintiffs suggested a sample program would include one director, one nurse practitioner, one counselor, one social worker, one part-time medical director, and one nurse.Plaintiffs also request supplemental funding to establish a comprehensive nutritional program for students. This funding would pay for uncovered costs of the federally-funded breakfast and lunch programs, 42 U.S.C.A. § 1751 to § 1769(h), as well as nutritional snacks for after-school programs and summer school. By fostering good health, nutritional programs increase a student's readiness to learn. Dr. Natriello testified that nutritional needs of students must be met to ensure that students are well-fed and attentive in school. He suggested that all students receive two free high-quality meals daily plus nutritional snacks during extended school days. This approach would eliminate any stigma attached to receiving free or reduced price lunches and would ensure 100% participation in the nutritional program.
Plaintiffs did not estimate the cost for implementing this program in all Abbott schools. They said such a figure could not be offered until the State conducted a needs assessment including: 1) identification of non-reimbursable costs of existing breakfast and lunch programs; 2) likely participation rates in after-school and summer programs; 3) sufficiency and quality of available facilities; 4) assessment of current breakfast and lunch participation rates; and 5) the difference between existing and full participation in a high-quality, nutritional program. The Commissioner in his report presented no evidence of the actual nutritional needs of children in the SNDs nor did he make any recommendation for student nutrition.
Plaintiffs and the Commissioner did agree that schools in the Abbott districts should provide alternative education programs, school-to-work and college transition programs, adequate security measures, instructional technology, and increased opportunities for parental involvement. However, they disagreed on specific designs, components, costs, and implementation of these supplemental programs.
Both parties recommended the Abbott districts provide alternative education programs. However, plaintiffs' proposal differed in two major respects from the State's recommendation by: 1) establishing an alternative program within each middle and high school; and 2) determining program components only after completion of a full needs assessment. Particularly, plaintiffs' plan required an assessment of the number and needs of potential participants, an evaluation of currently existing alternative programs, and a review of various dropout prevention approaches. Plaintiffs identified the following goals for their program: 1) to respond to those students with learning deficiencies who would benefit from more informal, individualized instruction; 2) to prevent students from leaving school before graduation; and 3) to promote a more coordinated approach to students with behavioral problems.
Plaintiffs noted the amount of supplemental funding to establish alternative education programs in the Abbott districts could be determined only after completion of the needs assessment. Dr. Natriello testified that costs for such programs could vary substantially depending upon different staffing configurations. For example, in some schools, drug abuse could be an important issue requiring specialized staff but in other schools, drugs may not be a problem. Further, high school completion or dropout rates vary across the Abbott districts. Recent data from a cohort study which followed a group of students from grades nine to twelve showed that graduation rates in 1995 ranged from lows of 33% in Trenton, 42% in Newark, 48% in Jersey City, and 60% in Paterson City to a high of 80% in Perth Amboy. (P-61). Thus, the nature, extent, and cost of dropout programs in the Abbott schools would differ. *fn5
Nonetheless, plaintiffs suggested a general design for this supplemental program would consist of one program director, one teacher per ten students with an undetermined number of aides, counselors, and specialists. Per-pupil and per-program costs would include salaries, benefits, materials, supplies, equipment, and the creation or renovation of additional facilities space, as necessary.
Both parties also recognized the importance of school-to-work and college transition programs for students in the Abbott districts. The major difference between the two recommendations involved the funding source. Whereas the State proposed to implement these programs using existing regular education funding, plaintiffs claimed extra resources and supports were necessary to meet the special needs of Abbott students for programs to strengthen workplace-readiness skills and better prepare them for college. To determine these additional requirements and their costs, plaintiffs asserted there must be an assessment of: 1) the costs of similar programs in the I and J districts; 2) actual needs of middle and high school students in the Abbott districts for college and career counseling; and 3) current guidance staff workloads to determine capacity for implementation.
Further, plaintiffs agreed with the Commissioner's general recommendation for increased security. However, once again, the Commissioner proposed to use regular education funding to pay for additional security personnel even though he never studied the actual needs of students in the Abbott districts. In fact, Assistant Commissioner Azzara said on cross-examination that he derived the ratio of 1:225 guards per student from the Elizabeth and Perth Amboy proposals for security personnel in their 1997-98 parity expenditure plans.
Alternatively, plaintiffs' recommendation assumed there were additional security needs in the Abbott districts which were "over and above" the needs of I and J districts. These poorer urban school districts, often located in high crime neighborhoods, have increased incidents of violence and crime. To determine an appropriate funding level for security in these schools, plaintiffs requested more study, including an examination of: 1) security measures and spending in the I and J districts; 2) the number and adequacy of Abbott district security personnel and other measures; and 3) appropriate security staffing levels in the SNDs. Dr. Goertz testified she could not determine the cost of supplemental security without this comprehensive needs assessment.Plaintiffs and the State both proposed to give students in the SNDs more access to instructional technology than their peers receive in I and J districts. Both parties agreed that children in wealthier districts had greater exposure to computers in their homes and communities. However, plaintiffs claimed the Commissioner did not study the actual needs of Abbott students and failed to examine technology expenditures in the I and J districts. Without knowing the extent or cost of the technology programs provided to the wealthiest districts, Dr. Goertz again testified she could not determine the supplemental or extra technology needs of poorer, urban districts or their costs.
Both parties also recognized that increased parental involvement in Abbott schools would address another special need of disadvantaged students. These children often do not have the necessary home support for learning. Their parents are less educated and some lack appropriate parenting skills. Culturally sensitive parent training programs have proved successful in improving student achievement rates and reducing retentions. (P-4). These programs view parents as essential actors in school restructuring, planning, and governance.
Plaintiffs rejected the State's recommendation to provide one parent liaison in each elementary school and to integrate this program's cost into the regular education budget. Instead, plaintiffs proposed a more aggressive program of parent training and education. First, the program would be tailored to the particular needs of parents in each school. Second, parent liaisons would be created in all elementary, middle, and high schools. Third, the number of parent liaisons at each school would depend upon the school's size with a minimum of one for every 500 students. Fourth, this program would be implemented from funds "above and beyond" what currently is available for regular education. To determine actual costs, more study of student needs must be undertaken. However, plaintiffs estimated the total cost of providing parent coordinators in the Abbott districts at $12.5 million ($20,500 salary plus 18% benefits). (P-70).
In addition, plaintiffs recommended a series of strategies to improve regular education in the SNDs. Initially, they would require the Commissioner to: 1) conduct a comprehensive study of the regular education program and professional development in Abbott and I and J districts; 2) compare program components and staffing requirements between these low and high-performing districts; and 3) identify changes and additional funds necessary to improve core curriculum and instruction in Abbott schools so their students can achieve the State's heightened standards. Plaintiffs proposed a court-supervised proceeding to present these findings no later than December 1, 1998 with recommendations forwarded to the Supreme Court by December 31, 1998. (P-26).
Plaintiffs also would require the State to establish an interim, state-level Abbott School Improvement Fund. This Fund, administered by the Commissioner, would provide schools in the Abbott districts with resources to evaluate and implement whole-school reform, SFA or other research-based programs designed to improve the core curriculum and instruction under the new standards. Plaintiffs suggested that $31.4 million was an appropriate level of funding. (P-70). Specifically, Dr. Goertz derived this figure based on her determination that it would cost approximately $313,730 per school to support whole-school reform and that 100 or about 25% of the Abbott schools would be in a position to implement improvements by the fall of 1998.
Lastly, plaintiffs proposed the addition of one instructional improvement facilitator for each Abbott district and each school. This individual would "plan, assess, coordinate and implement programs and strategies to improve curriculum and instruction." (Plaintiffs' proposed finding #170.) Dr. Goertz testified other cities which implemented whole-school reform funded such staff to assess student needs and design appropriate programs. Goertz estimated the cost for facilitators in each of the 420 schools plus twenty-eight districts at $26.2 million using the average salary in I and J districts ($51,000) plus benefits (18%).
Plaintiffs contended the implementation of supplemental programs could not be accomplished solely by school-based decision-making and budgeting but required a clear plan for State assistance. They proposed the creation of a state-level Interagency Council consisting of the Departments of Education, Human Services, Health, and Labor with representation from higher education, advocacy groups, and the Abbott districts. The Council would serve to:
"1) oversee the implementation of a coordinated plan to deliver health and social services to students in the poorer urban schools; 2) assist in the formulation of policy and programs; 3) address specialized needs and populations; 4) solicit proposals to conduct State-funded research on new developments in the education of disadvantaged students; and 5) train supplemental program coordinators including one district-level staff person and one person per school who would be funded through DEPA."
Likewise, each district would establish local leadership councils comprised of representatives from the public and private sectors. These local councils would oversee individual school needs, assist in the evaluation and implementation of programs, and coordinate the various community services devoted to children and their families. (P-26).
Finally, plaintiffs requested the State to promote inter-district networking, collaboration, and dissemination of ideas through the creation of a Council of Abbott Districts. This Council would meet regularly and would be supported by a small staff to be funded from per-pupil assessments applied to each district. (P-26).
Plaintiffs proposed a three-year period of implementation for their supplemental programs. During 1998-99, the State would: 1) conduct a needs assessment; 2) collaborate with community-based providers of health care, social services, and early childhood programs; 3) establish and fund the State Interagency Council, Council of Abbott Districts, Abbott School Improvement Fund, and the Research and Development Program; and 4) place trained instructional improvement facilitators in each school to design required programs. (Plaintiffs' proposed finding #199.) The supplemental programs then would be implemented over the next two years subject to the availability of appropriate facilities. These programs would continue until the Commissioner can demonstrate they are no longer needed.
Plaintiffs estimated the overall cost of their supplemental programs (excluding early childhood programs) was $453.6 million. (P-70). This amount, however, included only the following programs: 1) reduced class size; 2) after-school and summer programs; 3) school-based health and social services; 4) parent coordinators; 5) instructional coordinators; 6) the interim Abbott School Improvement Fund; and 7) supplemental program coordinators (instructional improvement facilitators). (P-70). Because the State did not conduct a comprehensive needs assessment, plaintiffs said they could not determine the costs for alternative education programs, school-to-work and college transition programs, security, technology, nutrition, and professional development. (P-26).
ANALYSIS OF SUPPLEMENTAL PROGRAMS ASPECT
This court's analysis and Conclusions of the program aspect are based on testimony taken over the twelve hearing days, review of the ninety-seven exhibits, consideration of the views of this court's consultant, Dr. Odden, who also consulted with the parties' representatives and expert witnesses, this court's review of the professional literature alluded to in the testimony, the experts' reports, and ten visits to court-selected schools in the City of Camden School District, most in the company of the parties' representatives, and all on notice to the parties. The court also relied extensively on the excellent proposed findings of fact and Conclusions of law submitted by the parties at the Conclusion of the hearings, in lieu of a trial brief. See 9A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2578 (1995).This case involves the application of constitutional principles to public policy decision-making. The testimony presented no conflict in credibility of the witnesses. Indeed, the court finds no need to resolve any specific credibility issues in order to make its findings, Conclusions and recommendations. Each witness appeared truthful, relating facts and opinions as perceived by them. Naturally, since the dispute was over educational and social policies, and ultimately the welfare of children and the expenditure of taxpayers' money, disagreements on specific points were wide-ranging. With these generalities and implications in mind, this court reaches the following Conclusions from the evidence considered in light of the social science background against which the proofs were presented.
This court is in substantial agreement with the analysis and recommendations of Dr. Odden on the programmatic issues. This court's Conclusions are not based exclusively on his views but rather are based substantially on the court's independent inferences and Conclusions from the testimony presented and available social science data. In several instances, this court might be more inclined to favor the plaintiffs' view than Dr. Odden does. Ultimately, any disagreement on that score is up to the Supreme Court to resolve.
This court indeed "has before it two different visions of the scope of programs to be included in the resolution" (Odden at 1) *fn6 of this constitutional dilemma. The State's vision is likely driven by a certain measure of political pragmatism; the plaintiffs' vision is likely driven by optimistic, well-meaning idealism. This court's proposed solution may be viewed in a certain sense as a compromise but the court is always aware that State constitutional rights cannot be discounted with the same currency as commercial or political utility.
Our starting "point is that the education program in the I and J districts is the de facto [constitutional] standard." (Odden at 2.) The State apparently accepts this reality, that fiscal deficit funding for horizontal equity is morally, if not constitutionally required, at least, as the Supreme Court put it, until "it can be convincingly demonstrated . . . that a substantive thorough and efficient education can be achieved in the SNDs by expenditures that are lower than parity with the most successful districts. . . ." Abbott IV, 149 N.J. at 196. Realistically, fiscal parity between Abbott districts and I and J districts probably will remain the norm until a more manageable State system evolves, i.e., fewer and more efficient districts than the current 611, with more cohesive and natural boundaries ---- such as county or natural regional districts. This system would recognize more robust and sound political and financial foundations than the present school districts, which are defined almost exclusively by municipal boundaries, see N.J.S.A. 18A:8-1, to the exclusion of any other consideration.
We agree with the State's position that fundamental school-based educational reform in the SNDs is entirely consistent with the philosophy of Abbott IV and its precursors. Indeed, we doubt that the plaintiffs seriously disagree with this point. The State's reform "proposal has an effective literacy program at its core." (Odden at 3.) We accept this proposal totally. The emphasis on reading, writing and communication espoused by Dr. Slavin's program is the quintessential foundation for all future gains. The SFA program is proven effective. Based on the testimony in this record and on the professional literature, this court heartedly endorses the State's plan for SFA, or other comparable whole-school reform programs, such as the Comer School or family and community school programs, in the Abbott districts.
We also agree with the State's view that now is the time to rebuild both the curriculum and the financial structure from the "ground up," i.e., from the school level and not the district level, with a "school-based" budget approach. Perhaps this embrace of whole-school reform has been prompted by the State's recent experience in managing the "takeover" districts, Paterson, Newark and Jersey City. No matter what the inspiration, financial management and curriculum reforms at the foundation level of education are greatly encouraged over the prior "top-down" approach ---- DOE down to district then to school-level. We sense from the evidence presented in this proceeding that there has long been too little State involvement at the school-level and too much reliance on remote control through the districts. This whole-school reform from the ground up also may lead to financial efficiencies which could be disclosed only through careful examination of each school (and district administrative) budget. Indeed the court thinks a two-year budget cycle, instead of a one-year cycle, might permit closer, more effective scrutiny of district fiscal affairs.
As noted, this court strongly endorses the concept of whole-school reform with the presumption in favor of Dr. Slavin's SFA program. He was a most impressive witness. His program is encouraging and proven. Indeed, Dr. Slavin was urged upon this court by plaintiffs, in August 22, 1997 correspondence, as a possible judicial consultant when the court sought the parties' advice on the point.
This court personally observed the SFA program in Principal Annetta Braxton's Cramer School (pre-kindergarten to grade four) in East Camden, a most impressive operation. These children clearly were eager, ready and learning. Of course, we recognize that the intangibles of fine leadership and dedicated teaching are the keys to any program. Unfortunately, these qualities are not derived from an accountant's balance sheet or stratagems of the bargaining table. While we endorse the State's program of whole-school reform under the aegis of SFA or analogues, we stress several caveats. The needs of special education students must not be compromised where these needs are legitimate. See N.J.S.A. 18A:7F-19 (CEIFA funding for special education). We recognize and hope that successful implementation of this SFA program may eliminate some, perhaps many, of the special education needs, as Dr. Slavin so described. We do not construe the State's position as designed to "short-change" special education, as plaintiffs suggested. And this surely must not happen. Any Supreme Court order should require that sufficient funds for special education purposes remain in any school-based budget. We interpret the Commissioner's testimony as assuring adequate money in individual school-based budgets for all extant worthy programs, including special education, and we take him at his word on this point. According to the Commissioner's budget models, and in Dr. Odden's opinion, there will be enough money available to the schools under the State's proposal (with the parity money) to sustain the whole-school reform program. Again, if there is not enough money -- -- if the calculation turns out wrong ---- the Supreme Court's order should compel adequate State funding to support the whole-school reform program notwithstanding.
We also must comment that programs like art and music should not be minimized in the whole-school design and reform model. These culturally enriching, life-enhancing programs are even more important for the typical "at-risk" student in the SNDs or Abbott districts than in the I and J districts, where family and community resources for cultural pursuits are much more likely available to their typical students. If anything, appropriate art and music programs and facilities should be stressed more in Abbott districts and the Supreme Court may desire to so recognize in its order.
We agree with Dr. Goertz, a well-qualified plaintiffs' expert, that SFA is a supplemental program, although integrated with a foundational education program, within the intent of the Supreme Court expressed in Abbott IV and its precursors, and that SFA will be most especially efficacious in poorer urban districts with high populations of "at-risk" students. In sum, this court agrees with the State's overall approach for educational and financial reform at the school level. We concur with Dr. Odden "that the approach taken by the State, if fully and faithfully implemented, would represent the cutting edge of reengineering school finance to the purposes of standards ---- and school-based education reform, the objective of which is teaching all students, including low-income students, to high standards." (Odden at 5.) This reform approach proposed by the State also should be appropriate for the middle and secondary schools. (Odden at 10-11.) Again, if the economic forecast is wrong and if there is not enough money in the system, then the Commissioner must, as promised, seek appropriate funding for these middle and secondary levels.
We proceed to the specific points and recommendations.
1. Parity Spending.
We recommend that the State continue to guarantee the Abbott districts the average spending level of the I and J districts for the 1997-98 school year ($8664 per pupil) with inflationary adjustments (presently 2.72%) in subsequent years. This should continue as the base funding for regular education in the Abbott districts, providing the "horizontal equity" alluded to by the experts at the hearing. If agreeable, the Supreme Court also must decide whether future parity or deficit funding must track the annual changes in I and J average spending. We suggest that it should.
2. Whole-School Design.
We recommend that the State require the Abbott districts to adopt some version of a proven, effective whole school design with SFA-Roots and Wings as the presumptive elementary school model. Other very effective school models we have observed were: 1) the Comer School Development Program at the Francis X. McGraw Elementary School in East Camden, Principal Dr. Paul L. Stephenson (pre-kindergarten through grade five); 2) the "uniformed" Professional Development Family School at Cooper's Poynt in North Camden, Principal Annie B. Rubin (pre-kindergarten through grade eight); and 3) the "uniformed" R. T. Cream Family School in Central Camden, Principal Dorothy W. Wyatt (kindergarten through grade eight).
We here repeat the caveat that the State must adequately fund special education, art and music under any of these models, recognizing that exemplary programs and facilities therefor should be stressed in the Abbott districts in these subjects because of lack of community or family resources. If sufficient financial support cannot be derived from the illustrative school budget, the State, true to the Commissioner's promise, must make up the difference to insure the quality of SFA-Roots and Wings including special education, and exemplary art and music classes. This commitment by the Commissioner also applies to alternative schools at the secondary level, in this court's view.
The State agrees that full-day kindergarten should be furnished, rather than half-day as at present. Full-day kindergarten would cost about $173.8 million (estimated 22,000 students at $7900, the I & J average per elementary school pupil). (P-26). The State has provided $86.1 million in "T & E" and parity funding for full-day kindergarten programs in its illustrative revenue budget (D-2); thus, the net cost of implementing full-day kindergarten is about $87.7 million.
This court strongly endorses the State's commitment to full-day kindergarten. CEIFA itself specifically addresses early childhood program aid "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. The funding formula in CEIFA, id., which allegedly provides $200 million to Abbott districts for early childhood aid, gave no assurance facially of adequate funding for this program and was found defective for that reason. This full-day kindergarten program should be implemented immediately.
3(b). Preschool for ages three and four.
While recognizing the efficacy of preschool programs for low-income children, ages three and four, the State proposed only a half-day program for four-year olds. This court disagrees with the State's recommendation and urges a full-day program for all children ages three and four whose parents desire enrollment. We anticipate a participation rate of about 75%. This court is convinced that such a program will have a significant positive impact on academic achievement in both early and later school years. As Dr. Barnett related, "people often say that poor kids are two grade levels behind by the time they're in elementary school . . . behind the average." (December 1, 1997 at 141). As the experts described, the long-term benefits amply justify this investment. The cost estimates for the early full-day childhood education program which this court recommends are significant: $260.7 million for threeand four-year olds (estimated 22,000 for each group with 75% utilization at $7900 per pupil). These programs also must be implemented promptly, by the 1998-99 term, if at all possible.
3(c). Early Childhood Costs.
The total incremental cost for recommended full-day kindergarten and preschool programs would be $148.4 million or $434.5 million less the $286.1 million the State allegedly has committed already to early childhood programs in ECPA, "T & E" and parity funds. If the Supreme Court opts for a less intense program, full-time classes for four-year olds only, or half-day classes for three-year olds still would be very beneficial.
4. Class size reduction.
This court agrees with Dr. Odden's analysis on rejecting class size reduction to fifteen for kindergarten to third grade. Conceptually, whole-school reform like SFA and classsize reduction to fifteen are alternative programs. If SFA is implemented effectively and works, this is sufficient. SFA reduces class size in grades one through three in reading to fifteen children for ninety minutes or for about 30% of the instructional day (298 minutes). This court presumes from the record that the enhanced ninety-minute reading period could be made available if needed after grade three. Reading is the key program. If SFA does not work or is not implemented effectively, overall class size reduction to fifteen for students in kindergarten through third grade is strongly recommended by this court. Unfortunately, this possibility of failure exists because whole-school reforms, such as SFA, depend greatly on faculty skills and enthusiasm.
This court was very impressed with Dr. Finn's testimony about the effect of small class size shown by the longitudinal Tennessee Star Study. The impact of small classes on educational advances by racial minorities was even more substantial, according to Dr. Finn. (See Odden at 17.) This court will accept the State's recommendation for reduced class size to twenty-one but only if whole school reform, stressing reading as in SFA, is vigorously and successfully pursued. If not, class size reduction to fifteen from kindergarten to grade three should be mandated promptly. The program cost of reducing class size to fifteen at these four levels could be about $80 million according to the plaintiffs' proposals. (Plaintiffs' proposed findings #58 and #77.) While published studies are not extensive on the power of class size reduction, we may not see anything in the research more persuasive for the next decade, if not the next generation. These longitudinal studies are laborious and expensive. However, the virtually universal intuition on this aspect, as gleaned from this court's experience, supports the view that "smaller is better" for early schooling purposes. If more money is invested, this is where this court would put it, ever mindful, of course, of the strains on the facilities' budgets.
5. Summer school or extended term.
This court agrees with the recommendations of Dr. Odden (at 18), Dr. Goertz, plaintiffs' expert, and others that the State fund an extended term or summer school program for all interested children. The cost estimate is $100 (Odden) to $102 (Goertz) million. Because many children in the Abbott districts have had difficulty learning to high standards, this extended-term effort will provide for extra opportunity to learn to expected levels and is a worthwhile investment in conjunction with this court's recommended emphasis on the preschool or early childhood education, and smaller and more intensive reading programs. This court concludes that the extended term program is probably a better educational investment than an extended-day program. The cost of extended term is estimated at $100 million.
6. School-based health and social services.
This court adopts the views of Dr. Odden (at 19 to 22) on this supplemental program and incorporates them in the recommendation. Again, as in class size reduction, this court is inclined to perhaps a more generous State financial contribution towards school-based health and social services than Dr. Odden. The need for these services in the Abbott districts is manifest and the benefits are undeniable. The DOE eschews this mission as beyond its educational mandate as compelled by law and asserts this task is or should be exclusively within the charge of the State's public health and social service delivery agencies.
A rethinking of government's role in this respect and more efficient logistical methods are probably in order. These services should optimally be provided at the school, confidentially and distinct from the school's educational administration, because as Human Services' Assistant Commissioner Tetelman testified: "That is where the kids are." This court has observed these programs at Camden High School (including on-site maternity care) and at Woodrow Wilson High School, also in Camden. These programs, when adequately staffed and funded, are designed precisely to overcome the "extreme disadvantages facing children in the SNDs," which impede educational improvement. Abbott IV, 149 N.J. at 179; see Abbott II, 119 N.J. at 369. And these programs are contemplated specifically in CEIFA's enumerated DEPA program mandate. N.J.S.A. 18A:7F-18a (includes "health and social service programs").
Currently, the twenty-five existing school-site programs (fourteen in the Abbott districts) are spliced together by modest grants from Human Services, local district support, in-kind space contributions by schools, and annual grants secured and annually resecured by local personnel. This court has no hesitancy in supporting Dr. Odden's recommended $40 million in funding on this score for middle and secondary schools, where the need is probably greatest. The estimated total cost by plaintiffs for school-based health and social services at every level in every Abbott district school is about $126 million (less uncertain collateral sources), or $300,000 per school, an ambitious number but no doubt sincerely advocated. Of course, any ultimate State funding input would probably and justifiably be mostly non-educational in character, perhaps from Health or Human Services, and not DOE. We note that these programs as currently envisioned also would provide extended-day academic assistance. (See Odden at 20-21.)
This court endorses the consultant's recommendations on accountability at a total cost of $24 million. (Odden at 22-25.) Both the plaintiffs and the State recognized the need for accountability mechanisms, both fiscal and academic, as did the Supreme Court in Abbott IV, 149 N.J. at 193. This element is essential to high performance and effective restructuring. Reforms in this context should encourage competition and not reward failure. Lynn Olson & Caroline Hendrie, Pathways to Progress, Education Week, January 8, 1998, at 244-45; Eric A. Hanushek, Making Schools Work: Improving Performance and Controlling Costs 85-124 (1994).
8. Security costs.
Unfortunately, testimony about the added security costs in the Abbott districts was not articulate at the hearings. This court concludes that the State thought the costs were covered adequately in the proposed illustrative or model school-based budgets, as augmented by continued parity funding. Obviously, any additional security needed in the environment of the Abbott schools should not be allowed to eat away at the regular education budget. See Abbott IV, 149 N.J. at 172-73. If the Supreme Court is dissatisfied with the State's treatment of security costs, the Court could order supplementary funding consistent with the State's recognition of this reality. "The estimated additional costs for these [Abbott district] security measures is $61 per pupil at the elementary level and $146 per pupil at the middle and high school levels." (State's proposed finding #91.)
The net cost of these supplementary program recommendations is an estimated $312 million. This cost is net of funding committed by the State for early childhood programs in its illustrative revenue budget: $200 million in ECPA and about $86 million in "T & E" and parity funds. This court's recommendations also include continuing deficit fiscal contributions for regular education by the State to maintain the Abbott districts at the spending level of the economically privileged districts, the so-called "parity" funding mandated by Abbott IV or about $246 million for the 1997-98 term. This recommendation is included because this deficit funding by the State is necessary to sustain the whole-school reform proposal. Larger program expenditures than the recommended net $312 million estimate may be considered by the State or the Supreme Court to reduce class sizes in kindergarten through grade three across-the-board, to augment further school-based social services, and to recognize security costs which can erode regular education budgets.
THE PRESENTATION ON THE FACILITIES ASPECT
In Abbott IV, 149 N.J. at 186, the Court recognized that adequate physical facilities are key to achieving a thorough and efficient education. Many school buildings in the SNDs are "crumbling and obsolescent;" 64% of the buildings are over fifty years old. Id. at 187. See also William A. Firestone, Margaret E. Goertz, and Gary Natriello, From Cashbox to Classroom: The Struggle for Fiscal Reform and Educational Change in New Jersey 140-54 (Teachers College Press 1997) (P-36). In general, schools lack adequate space to deliver effective educational programs: Most schools in the special needs districts lack library/media centers, are physically incapable of handling new technology, are deficient in physical facilities for science, and cannot provide sufficient space or appropriate settings for arts programs. Most schools also lack adequate physical-education space and equipment. There is simply no space in these districts to reduce class size; no place for alternative programs; no room to conduct reduced or eliminated programs in music and art; and no space for laboratories. The State's new core curriculum standards will only increase the need for capital expenditures to improve and to augment physical facilities. And, as noted, many SNDs will continue to be incapable of providing early childhood programs because of a lack of space to house the additional student enrollment. [Abbott IV, 149 N.J. at 187.]
On remand, this court ordered the Commissioner of DOE to review the facilities needs of the SNDs and provide recommendations, including proposed means of financing, to address those needs. Id. at 225. The financing plan could not be contingent upon a district's ability or willingness to raise necessary funds, either through increased taxes or debt. Id. at 188.
As the Court noted, implementation of the core curriculum content standards may increase facilities requirements. On May 1, 1996 DOE issued these standards to assure the thoroughness of education at the primary and secondary levels. (D-12). The standards set goals in seven core academic areas: visual and performing arts; comprehensive health and physical education; language arts literacy; mathematics; science; social studies; and world languages. Each standard is supported by a set of "cumulative progress indicators" establishing specific expectations for grades four, eight, and twelve. DOE also issued five cross-content workplace readiness standards integrated into all core academic programs: career planning skills; technology; critical thinking, decision-making, and problem-solving skills; self-management skills; and safety principles.
To effectively implement and monitor progress against the core curriculum content standards, DOE is developing related curriculum frameworks and assessment tools. To date, DOE has released several of the curriculum frameworks including health and physical education, mathematics, and science. Local districts should use the frameworks as guidelines to program development, but their use is not mandatory. The assessment program consists of standardized tests administered at the fourth, eighth, and eleventh grade levels, phased-in over the next six years. Abbott IV, 149 N.J. at 162.
Pursuant to the Supreme Court's May order, DOE issued A Study of School Facilities and Recommendations for the Abbott Districts, (Facilities Report) in November 1997. (DF-1). The Facilities Report consisted of three basic areas: an educational facilities assessment, educational adequacy standards for facilities, and an improvement plan, including a proposed funding scheme. The educational adequacy standards and facilities improvement plan contain only preliminary recommendations. DOE plans to issue final educational adequacy standards in January 1998 after considering this court's recommendations on supplemental programs.
A. Facilities Assessment
DOE engaged Vitetta Group, architectural and engineering consultants, to perform an assessment of facilities in the twenty-eight SNDs. Vitetta Group had two objectives: 1) to determine the cost of repairing or replacing deficiencies in the Abbott schools and 2) to determine additional capacity requirements, in order to accommodate the existing student population in each Abbott district. (DF-2). Stephen Carlidge, Director of the Educational Facilities Program for Vitetta Group, planned and coordinated the study. Carlidge has worked with five of the Abbott districts (Camden, Irvington, Long Branch, New Brunswick and Perth Amboy) to renovate existing facilities and build new facilities.
DOE hired Vitetta Group to develop a survey form for completion on each of the 429 *fn7 schools in the Abbott districts, train employees and consultants who conducted the surveys, provide evaluative standards and quality control, compile survey data in an electronic data base, evaluate survey results, and estimate the cost to correct existing deficiencies and provide additional classroom space. DOE did not require Vitetta Group to consider the core curriculum content standards when preparing the survey. Due to time constraints, Vitetta Group and the school districts had only about two months to conduct the study and issue a report.
Vitetta Group developed a detailed survey instrument which was completed by district personnel or consulting architects and engineers appointed by the district. The survey consisted of six categories: general description and program provisions; site characteristics; architectural and structural features; mechanical and plumbing systems; electrical systems; and current code deficiencies. The general description included capacity, enrollment, conformance with the State Technology Plan, age of buildings, and construction types. Surveyors evaluated each building component as either "functional" or "not functional." Vitetta designed the survey instrument so that any "not functional" response required a comment about the nature and extent of the deficiency. The form contained several common criteria which applied to all schools, minimizing subjectivity and facilitating compilation and evaluation of survey results for all twenty-eight districts.
Vitetta Group conducted a training session on September 4, 1997 to familiarize the facility surveyors with the form. As part of the training, surveyors went to a practice site to receive hands-on instruction and promote consistency among surveyors' responses.
The deadline for submitting completed surveys to Vitetta Group was October 1, 1997. Quality control review by Vitetta Group revealed that many surveys were incomplete or incorrect upon first submission; surveys were returned for correction and in some cases, more than once. About 10% of surveys still had errors even after the third submission; however, according to Vitetta Group's report, such errors did not have a significant impact on the survey as a whole. Vitetta Group then compiled survey results and prepared a summary of findings for each district.
Based on information from the survey summary, 1997-98 enrollment for the Abbott districts was 261,738 students. Facilities totalled 35.6 million square feet, or 135.15 square foot per student. The average school was built in 1941 and the average addition was built in 1964. Although the survey revealed that some schools were underutilized, the districts required additional capacity for 49,558 students, or 3137 classrooms, primarily at the elementary school level, to serve the State's proposed whole-school reform program. (DF-2).
Using the survey data, Vitetta Group estimated the cost of repairing or replacing existing deficiencies, classifying such deficiencies as functional, life cycle or current code. Functional deficiencies consisted of any acceptable "not functional" responses to the survey form; responses were acceptable only if the surveyor provided sufficient explanation for the deficiency. Life cycle deficiencies reflected those components which were considered functionally adequate but older than expected useful lives. For example, if a boiler was more than fifty-years old, it was considered obsolete and in need of replacement, even if the survey reported the boiler was functioning adequately. In addition, Vitetta Group used conservative life expectancies because of the lack of regular facilities maintenance in the SNDs. *fn8 Current code deficiencies were reported separately on the survey; to avoid duplication, Vitetta Group did not include any reported code deficiency that already was considered a functional or life cycle deficiency.
Vitetta Group then determined the cost of repair or replacement using published unit costs of R.S. Means Company. Vitetta Group increased these unit costs by 5 to 10% to reflect the cost of construction in New Jersey. According to Carlidge, this increase was consistent with other published data and Vitetta's own consulting experience. Cost of replacement included the cost to remove any existing fixtures and related installation costs.
Vitetta Group also utilized survey information to determine if a school needed additional classroom capacity to accommodate its current enrollment using the proposed whole-school reform model. First, all school capacities were calculated anew, based on minimum classroom sizes, recommended numbers of students per class, and an assumed utilization rate. The minimum classroom size was determined by allowing twenty square feet per student required by N.J.A.C. 6:22-5.5, then adding additional space for activity areas, furniture and equipment, and storage. DOE provided Vitetta Group with the recommended number of students per class. Utilization rates then were applied to students per class, giving flexibility to the estimate and allowing for growth in the student population.For elementary schools, each existing pre-kindergarten classroom greater than 750 square feet was assigned thirty students, consisting of two half-day classes of fifteen students each; each existing kindergarten classroom greater than 750 square feet was assigned twenty-one students; and, each existing general classroom in excess of 600 square feet was assigned twenty-one students. A utilization factor of 90% was applied to each class size, resulting in a net 13.5 students per class in each half-day pre-kindergarten session and a net 18.9 students per class in kindergarten through fifth grade. In middle schools, classrooms in excess of 600 square feet were assigned 22.5 students each, with a net class size of 20.25 students at 90% utilization. In high schools, classrooms in excess of 625 square feet were assigned twenty-four students each and classrooms between 425 and 625 square feet were assigned eighteen students each. A utilization factor of 85% was applied, resulting in 20.4 students in the larger classrooms and 15.3 students in the smaller classrooms.
Next, Vitetta Group calculated classroom deficiencies per the proposed model on a district-wide basis. Deficient capacity was calculated by dividing the current enrollment at each grade level by the net number of students per class listed above, then subtracting the number of currently available classrooms. Vitetta estimated that 3137 additional classrooms would be needed to accommodate the current student population, consisting of the following:
School Type Additional Classrooms
Prekindergarten and Kindergarten 141
Special Education 16
Total classrooms required 3137
Finally, Vitetta Group calculated the cost of constructing 3137 additional classrooms, using the following square footage parameters for new construction: 950 square feet for pre-kindergarten and kindergarten classrooms; 800 square feet for elementary and middle school general classrooms; and 750 square feet for high school general classrooms. Vitetta Group then applied a self-characterized "grossing factor" of 1.33 to these requirements, to account for walls, ventilation, and other necessary components which occupy classroom space. Cost of new construction was estimated at $125 per square foot, consisting of $122 for actual construction costs and $3 for site development costs. These costs were obtained from Vitetta Group's existing data base, then compared to New Jersey construction cost data published by F.W. Dodge. F.W. Dodge compiles data from public bids made over the previous twelve months.
Based on Vitetta Group's study, the total estimate to expand capacity of the Abbott schools to comply with the State's proposal and repair or replace existing facilities deficiencies was about $1.8 billion. Of that total, about $437 million is required for additional capacity and $1.371 billion for repair and replacement. Major components of the $1.371 billion are $580 million for architectural and structural repairs, $288 million for heating, ventilation, and air conditioning repairs, and $242 million for power and distribution system repairs.
The Vitetta Group survey was extensive; it provided valuable details about the condition of existing facilities in each of the Abbott districts. However, due to the limited objectives of the survey, the $1.8 billion estimate does not reflect the total cost of facilities improvements in the SNDs.
The Vitetta Report states that the following costs were not projected in the $1.8 billion total: • General conditions of construction contracts such as bonding, insurance, and other project requirements. These costs may range from 5 to 20% of total construction costs, but typically approximate 5 to 8%. • "Soft costs," including design and engineering expenses, bond issuance costs, and legal and administrative expenses, which approximate 25% of total construction costs. • Special project requirements such as site acquisition, historic preservation, and hazardous materials clean-up. These costs are difficult to estimate; for example, in many urban districts, parcels owned by the city are sold to the district for a nominal fee. Conversely, available sites may be scarce or contaminated from previous industrial use and require remediation. • Inflation of 4% per year. • Estimated contingencies of 15 to 20%, to account for unforeseen circumstances such as market conditions which cause project bids in excess of budget. To account for these costs, Carlidge testified he would add 35% to the $1.8 billion estimate, plus any increment for inflation. This would bring the estimate to at least $2.4 billion based on the Vitetta Group study alone.
Also, due to the limited nature of the Vitetta Group survey, other potential facilities costs were excluded. Vitetta Group only considered the cost of building additional classrooms; if an additional building was required, costs for "core areas," such as the gymnasium and media center, administrative offices, and small group instruction rooms were not included. Vitetta Group also did not address the adequacy of existing space other than classrooms. For example, completed surveys noted whether or not there was a media center or library. However, if the media center did not adequately serve the needs of the students or if there was no media center at all, the cost of renovating or building a new media center was not included in the estimate. *fn9 In addition, the study did not address any new spaces required by the core curriculum content standards.
Moreover, the Vitetta Group study did not address the issue of renovation versus replacement of existing facilities. Dr. Jack DeTalvo, Superintendent of Schools for Perth Amboy, an Abbott district, recently worked with Vitetta Group to renovate or replace six schools in his district at a total cost of more than $100 million. (PF-10). According to Dr. DeTalvo, when a school is over one hundred years old, it often makes sense to replace the existing facility with a new one. One elementary school in Perth Amboy was built in 1897; it did not have adequate space for a playground nor did it have any corridors. Dr. DeTalvo decided to build a new facility because renovating the old facility would not meet the capacity needs of his district. Although the new building cost more in the short-run, the growing student population in Perth Amboy necessitated construction of a larger building which would be more cost-effective to operate. *fn10
The Vitetta Group study also did not account for changing demographics, using only current data to determine capacity requirements. The survey reflects that most of the capacity needs are at the elementary level; of the 3137 additional classrooms estimated by Vitetta Group, 2684 are in pre-kindergarten, kindergarten, elementary, and elementary/middle schools. Over time, this deficiency should "flow-through" to the middle and high school levels, which eventuality Vitetta Group did not reflect in the survey. Also, based on testimony from school administrators and facilities planners, student populations are growing rapidly in many districts. *fn11
In some respects, however, the $1.8 billion estimate may be overstated because of certain conservative assumptions used in the survey. Renovation costs were based on the assumption that all buildings would have to comply with the current building code, resulting in total potential compliance costs of about $607 million. (DF-2). However, not all school facilities are required to meet the standards of the current building code due to grandfather provisions. Proposed N.J.A.C. 5:23-6 of the Uniform Construction Code may significantly reduce code compliance for renovation projects, especially with respect to heating, ventilation, and air conditioning requirements and may reduce consequent costs. (DF-2).
Similarly, Vitetta Group did not consider opportunities for expanding capacity by restructuring space within existing buildings or reconfiguring grades within a school. Currently, the square foot per student in the Abbott districts is 135.15, which is consistent with the national average. Yet, in total, the survey shows a shortfall of 3137 classrooms, primarily at the elementary level. Newark, the largest Abbott district, has a total of seventy-nine schools at 177.37 square foot per student, well above the average for all districts. Newark schools have excess capacity at the middle and high school levels; however, there is an unmet need of 276 classrooms in the early grades. (DF-2). These statistics indicate significant opportunities for restructuring space and reconfiguring grades within Newark and other Abbott districts. *fn12 In addition, Vitetta Group did not consider trailers or leased facilities currently used by the district to accommodate excess capacity.
With respect to restructuring space, Dr. DeTalvo testified there may be significant opportunities for increasing student capacity in existing facilities, primarily when buildings are very old. With the assistance of Vitetta Group, Dr. DeTalvo undertook extensive renovation projects at two Perth Amboy middle schools originally constructed in 1906 and 1922. First, architects created new space by "infilling" existing light wells; these light wells often exist in buildings that pre-date mechanical ventilation. The new space was used for computer rooms and storage because it was windowless. Second, space was created by replacing boiler rooms on the ground floor with new roof-top systems. Third, classrooms were enlarged by about 8.5% by replacing old ventilation systems and storage cabinets with more modern designs. Fourth, each middle school contained separate large spaces for a gymnasium, cafeteria, and auditorium. By combining the cafeteria and auditorium into a "cafetorium," architects significantly increased the building's capacity. All of these improvements added capacity for 175 students without increasing the footprint of the existing structure. (PF-8).
The Vitetta Group survey alone is not a sufficient basis for estimating the cost of facilities improvements in the Abbott districts. Carlidge testified that a full study could not have been completed in the time allowed. If Vitetta Group had completed a full study, it would have cost about $3.5 million, compared with the $248,000 Vitetta Group had charged and which the State had allotted for the survey performed. B. Educational Adequacy Standards In the Facilities Report, DOE defines "educational adequacy" as facilities specifications necessary to achieve the core curriculum content standards. (DF-1). On October 22, 1997 DOE met with three educational consultants to determine which standards, if any, impacted facilities requirements. The State's consultants were Dr. Emily Feistritzer, President of the National Center for Educational Information, Dr. Bruno Manno, senior fellow of the Hudson Institute, and Alton Hlavin, Assistant Superintendent for Facilities and Operations of the Arlington, Virginia Public Schools. Hlavin alone testified at the hearing. He had extensive experience developing "educational specifications," collaborating with educators to translate the requirements of a curriculum into satisfactory facilities.
The State's consultants discussed each core curriculum content standard separately and its impact on facilities. (DF-11). Generally, these consultants agreed that the standards did not affect facilities needs, with a few exceptions: • Technology should be distributed into classrooms throughout the school, rather than merely having a centralized computer laboratory. Classrooms must have sufficient space and infrastructure to support technology. • At the middle and high school levels, space must be made available for performance aspects of the arts. • A separate gymnasium is necessary at the middle and high school levels. • At the middle school level, general purpose laboratory space must be provided to support the science curriculum. At the high school level, a separate laboratory for chemistry is required, while other science disciplines, such as earth science and biology, can share the same laboratory.
Based on the consultants' findings, field experience, and DOE's own expertise, DOE recommended these minimum requirements for facilities:
1. All schools be connected to a high-speed fiber-optic network and all classrooms be wired for integration of technology into the instructional program;
2. All elementary schools include:
a) Adequate classroom space for class sizes of 15 in prekindergarten, 21 in kindergarten through grade 3, and 23 in grades 4 and 5.
b) Space or scheduling accommodations for 90 minutes of reading daily for students in grades 1 through 3 in class sizes of no more than 15;
c) Toilet rooms in all prekindergarten and kindergarten classrooms;
d) Cafetorium and/or gymnasium with stage for breakfast, lunch, large group presentations, instrumental music and student performances;
e) Computer room for keyboard and computer instruction; and
f) Media center.
3. All middle schools or elementary schools housing grades 7 and 8 include:
a) Adequate classroom space for class sizes of 23;
b) Science demonstration room(s) with demonstration table and perimeter student areas with water for all students in grades 7 and 8;
c) Cafetorium and/or gymnasium with stage for breakfast, lunch, large group presentations, instrumental music and student performances; and
d) Media center.
4. All high schools include:
a) Adequate classroom space for class sizes of 24;
b) Art room;
c) Music room;
d) Science demonstration room(s) for general science with demonstration table and perimeter student areas with water;
e) Science Lab(s) with gas, water and appropriate ventilation for chemistry and physics;
f) Auditorium with stage for large group presentations, instrumental music and student performances;
g) Cafeteria for breakfast and lunch;
h) Gymnasium with bleachers and locker rooms; and
i) Media center.
[New Jersey State Department of Education, A Study of School Facilities and Recommendations for the Abbott Districts (Facilities Report) 17-19 (Nov. 1997).] (DF-1).
According to DOE, "[t]here appears to be no empirical research that directly establishes a cause and effect relationship or correlation between academic performance and the presence, absence or configuration of specialized instructional spaces, provided that these facilities provide a clean, safe and functional environment which is conducive to learning." Id. at 16. Several expert witnesses testified they concurred with this assertion. Carlidge testified that the decision to include specialized spaces is up to the individual district; some I and J districts do not have specialized spaces because they, as a matter of educational policy, believe that all programs should be delivered in the classroom or, as enrollments have grown, have converted specialized spaces into classrooms. On the other hand, Carlidge never has designed a new school without specialized spaces for a gymnasium, music room, art room, computer lab, media center, and cafetorium.
Physical classroom sizes were not listed in the Facilities Report. However, based on figures provided by DOE to Vitetta Group for its facilities assessment, "adequate classroom space" is 950 square feet for pre-kindergarten and kindergarten classrooms, 800 square feet for elementary and middle school general classrooms, and 750 square feet for high school general classrooms. (DF-2). Several witnesses involved with new school construction testified these spaces were adequate for the State's recommended class sizes. For example, comparing these square footage recommendations to those for new construction in Paterson and Perth Amboy, the DOE recommendations were somewhat smaller but the number of students per class also was smaller. Perth Amboy uses a guideline of 1100 square feet for twenty students in pre-kindergarten, 1165 square feet for twenty-five students in kindergarten, and 850 square feet for twenty-five students in a general classroom. Paterson uses 1000 square feet for pre-kindergarten and kindergarten, 900 square feet for grades one and two, and 800 square feet for other standard classrooms.
Plaintiffs want the State to adopt guidelines for new facilities construction that mirror the guidelines in Perth Amboy and in South Brunswick, an I district. In those districts, separate spaces are provided for an art room, music room, gymnasium, and cafetorium at the elementary and middle school levels. Plaintiffs contend that lack of specialized spaces does impact the ability to deliver effective educational programs. Currently, the State requires elementary students to have 150 minutes of physical education class per week. Depending on the size of the student body, an elementary school well may need a dedicated gymnasium to fulfill this requirement rather than an all-purpose room which serves as a gym, cafeteria, and auditorium. Schools also are required to have a separate health unit with a nurse's area. N.J.A.C. 6:22-5.4(b)(9).
Plaintiffs emphasized the need for separate music and art rooms at all levels. Willa Spicer, Assistant Superintendent for Curriculum and Instruction for the South Brunswick *fn13 public school district, testified about the need for separate music and art rooms at the elementary level. Core Curriculum Standard 1.3 for Visual and Performing Arts requires all students to "utilize arts elements and arts media to produce artistic products and performances." The cumulative progress indicator for grade four states that students "[a]pply elements and media common to the arts to produce a work of art." (D-12). Spicer testified that if students are actually to produce art and music, they need a dedicated space, rather than "art-on-a-cart" or a music teacher who travels "room-to-room." DOE has defined "educationally adequate facilities" in the context of compliance with the core curriculum content standards. The standards set goals for program delivery; however, the standards do not measure student achievement. When asked whether DOE's minimum facilities requirements would enable his students to meet the standards, Dr. DeTalvo of the Perth Amboy school system said that he did not know. He considered the standards only as a set of expectations; he needed the related frameworks and assessment tools to determine if required programs could be delivered in the current facilities. C. Facilities Improvement Plan To conclude the Facilities Report, DOE proposed a facilities improvement plan consisting of a facilities management plan, an oversight plan, and recommendations for construction management and financing. (DF-1). Plaintiffs did not question DOE's proposal; however, recommendations for construction management and financing are only preliminary. DOE admitted that financing is outside of its normal expertise and will rely on the State to provide appropriate financial advice and management for any funding mechanism.
As part of the facilities management plan, each Abbott district will be required to submit a five-year plan by January 1999 that ensures each school building is safe and healthy, in compliance with the Uniform Construction Code, conducive to learning and adequate for the delivery of programs and services necessary to enable all students to achieve the Core Curriculum Content Standards, and that sufficient instructional space is available within the district to house all resident students. [Facilities Report (DF-1) at 29.]
The district plan should be prepared with the assistance of a facilities advisory board consisting of parents, teachers, school-level administrators, architects and engineers, community representatives, and a staff person from the DOE Program Review and Improvement Office. In conjunction with DOE, the district should explore creative options to satisfy its capacity needs such as extended school years and joint use of municipal and privately-owned facilities. The district also should hire a demographer to perform a five-year enrollment projection to determine if capacity is sufficient. The district then should contract with an educational facilities planner and licensed architect to conduct a study of existing facilities and propose alternatives for meeting the requirements of DOE's management facilities plan. The district must prepare educational specifications, schematic plans, and enrollment projections to submit to DOE as an addendum to the plan. The district plan also must correct all deficiencies revealed in the facilities assessment performed by Vitetta Group.
As part of its oversight plan, DOE intends to develop facilities standards for all schools by January 1998, upon release of this court's report on supplemental program requirements. DOE will review all district facilities plans submitted to assure compliance with the educational adequacy guidelines. On a continuing basis, DOE staff will monitor progress against the plans to assure proper execution.
To determine best practices for construction management and financing in New Jersey, DOE reviewed educational facilities practices in four other states ---- Maryland, Pennsylvania, South Carolina, and West Virginia. Based on this review, DOE recommended the following elements of a comprehensive construction management and financing plan:
1. Long-term planning through a master facilities plan for each district incorporating best practices standards and other options to addressing [sic] facilities needs (i.e., inter-district facilities);
2. Public participation in the planning process;
3. Close participation of state technical staff;
4. Centralized construction management;
5. Central state financial management;
6. Needs-based funding formula which provides aid only for approved capital project costs;
7. Comprehensive mandatory maintenance plan. [Facilities Report (DF-1) at 33.]
David Hespe, Assistant Commissioner for Division of Executive Services, DOE, testified about implementation of these steps to achieve an adequate and efficient facilities program. The plan is to phase-in construction over a three-year period, with priority to health and safety projects, early childhood programs, and other required supplemental programs. Hespe indicated that educational specifications will include a model of a prototypical school which incorporates DOE's minimum requirements for facilities.
Rafael Perez, Executive Director of the New Jersey Educational Facilities Authority (EFA), testified about DOE's proposed financing plan which would require the EFA to issue bonds on behalf of the Abbott districts. Although this is not the only available funding mechanism, Perez believes this is a good route for New Jersey. Other states have raised funds for local primary and secondary educational construction projects through increases in sales taxes, income taxes, and various legislative appropriations, in addition to bonding.
The EFA, N.J.S.A. 18A:72A-1 to -58, was created to assist public and private higher educational institutions raise funds for construction of dormitories and other educational facilities. The EFA issues bonds in its own name to finance these construction projects; the bonds are secured by a trust agreement under which revenues or other moneys are pledged by the institutions. N.J.S.A. 18A:72A-9. EFA bonds are not a debt, liability or pledge of faith and credit of the State. N.J.S.A. 18A:72A-10. EFA operations are financed through charging a fee on each bond issue; EFA is not financed through State appropriations.
Under DOE's proposal, Abbott districts would issue bonds to EFA through a private placement. The dollar amount of the bonds would be limited to the level of "efficient funding" approved by DOE; funds for any expenditures in excess thereof would have to be raised by the districts themselves. EFA then would issue its bonds in a public offering using the district bonds to secure the debt. EFA does not require statewide voter approval to issue bonds because they are not considered general obligation bonds of the State. Although the State is not obligated legally to provide debt service for bonds issued by the EFA, it essentially is obligated financially and morally because the State's credit rating would suffer severely if EFA defaulted on its obligations.
According to Perez, the EFA is a good vehicle for financing construction projects in the Abbott districts. Because they are property-poor, Abbott districts have great difficulty issuing bonds in the open market; even if they could go to the bond market, the bonds would carry a substandard rating and high interest rate. The EFA has the needed expertise in accessing financial markets, unlike individual school districts which may access the market only once every ten to fifteen years or more. Issuing bonds through the EFA, after pooling underlying bonds from several districts, would reduce duplicative costs of issuance such as attorneys' and underwriters' fees. EFA bonds are rated slightly lower than State general obligation bonds, resulting in a higher interest rate of only .1 or .2%. In addition, EFA would obtain bond insurance to insure a high rating if that benefit outweighed the cost. EFA never has had a problem selling its bonds on the open market.
Bond proceeds would be placed with a trustee and invested pending disbursement. Funds would be disbursed to the districts only upon submission of certificates of completion to the EFA and confirmation by EFA personnel that funds have been spent appropriately. Any cost overruns would be absorbed by the EFA. Currently, the EFA does not provide construction management; however, it has done so in the past and would be able to manage construction in the Abbott districts with additional personnel. Because all financing costs are the responsibility of the EFA, the only risk to the Abbott districts occurs if the construction is substandard or not completed on a timely basis. There is one obstacle to utilizing the EFA for financing construction in the Abbott districts; the statute must be amended to allow the EFA to finance projects other than higher education.
As noted, the report by Vitetta Group indicated that facilities improvements in the Abbott districts will cost at least $1.8 billion; including provisions for soft costs and contingencies, the estimate increases to $2.4 billion. Debt service on $2.4 billion over thirty years at an assumed rate of 5.5% is about $165 million per year.
ANALYSIS OF FACILITIES ASPECT
This court's analysis on the facilities aspect is based principally on the testimony taken over five hearing days and review of the twenty-five exhibits. The State's Vitetta Group study showed a need for 3137 additional classrooms to service the State's proposed whole-school reform program. These primarily were needed at the elementary school level. The total estimated cost to expand the capacity of the Abbott district schools to comply with the State's proposal and to repair or replace existing facilities comes to about $2.4 billion when all relevant costs are projected. This cost related only to classrooms. Costs for other "core" components such as gymnasiums, media centers, offices, and small-group instruction centers were not included.
We conclude that these further costs can be established only after a detailed school-by-school evaluation, much more intense than the Vitetta study. The very difficult and site-sensitive decisions on renovation versus new construction further cloud attempted cost estimates for individual districts.
Plaintiffs' witnesses disagreed with DOE's facilities recommendations, primarily because the recommendations did not include separate spaces for all specialized programs. DOE's proposal was relatively incomplete and plaintiff did not offer a viable financial alternative which included facilities requirements for any supplemental programs in the Abbott districts.
In accordance with this court's program recommendations, additional classroom space is needed to accommodate threeand four-year olds in full-day pre-kindergarten programs. Based on current kindergarten attendance, an estimated 44,000 threeand four-year olds reside in the Abbott districts; at an estimated participation rate in pre-kindergarten programs of 75%, space for about 33,000 students is required. (Odden at 14.) The estimated cost of constructing these classrooms is $260.6 million.
This cost was estimated based on DOE guidelines for class size and square footage and cost data provided by Vitetta Group. To accommodate 33,000 students at fifteen students per classroom, 2200 classrooms should be provided. Each classroom is 950 square feet times a "grossing factor" of 1.33, or 1263.5 square feet. Vitetta Group estimated the cost of new construction at $125 per square foot; 2200 classrooms at 1263.5 square feet per room and $125 per square foot totals $347.5 million. Given that DOE's estimate already provides for half-day preschool for four-year olds, total cost should be reduced by 25%, for a net cost of construction of $260.6 million. Adding this cost to the Vitetta Group baseline estimate of $2.4 billion, plus an indeterminate amount for "core facilities" costs, a total of $2.7 to $2.8 billion for facilities improvements and expansion may well be in order.
The State proposes comprehensive assistance to the Abbott districts through construction management and financing. The Educational Facilities Authority, N.J.S.A. 18A:72A-1 to -58, could, if amended, be used to secure financing with the State-facility-backed bonding capacity. This would doubtless be considerably less costly than local bond issues, which might never be undertaken anyway in these credit-poor Abbott districts. Perth Amboy apparently was an exception ---- the district was debt-free when the exceptionally vigorous Dr. DeTalvo arrived in 1991 and pursued facilities improvements with the backing of a cooperative school board and a sophisticated architectural consultant.
The facilities assessment conducted by the State points out much of the problem. About 4800 classrooms are needed, if the full-day two-year early childhood program is undertaken (estimated as 3137 additional classrooms projected by Vitetta Group plus 1650 classrooms for three-and four-year olds, recognizing that half-day preschool for four-year-olds is included in the Vitetta estimate). The cost of the proposed improvements, renovations and additions likely will climb to the $2.7 to $2.8 billion range. This does not include any necessary construction of new buildings. Nor does this estimate allow credit for already authorized capital funding. Any more precision is not possible at this time and on this record.
The recent 270-page national study on "Quality Counts '98 ---- The Urban Challenge ---- Public Education in the 50 States" in Education Week (January 8, 1998), meticulously describes the national dimension of the problems of urban education, state-by-state. The study fully demonstrates that "urban students perform far worse, on average, than children who live outside central cities on virtually every measure of academic performance." Id. at 9. New Jersey's big-city (Camden, Jersey City, Newark, Paterson) problems are documented fully in the study. Id. at 11, 63, 65, 67, 79 and 204-06.
This court finds that the editors fairly describe the difficulties inherent in the urban education problem when they say:
"Many of the intractable problems that plague city schools are deeply rooted in the poverty, unemployment, crime, racism, and human despair that pervade the neighborhoods around them. Too often, teachers and administrators are asked to solve problems that the public and its leaders in statehouses and city halls have lacked the will and courage to tackle."
Some urban districts are rising to meet the enormous challenges before them. Here and there, test scores are climbing, dropout rates are falling, order is returning, and children are learning. Invariably, in these pockets of success we found bold leadership, imaginative initiatives, and extraordinary efforts by individual teachers and administrators.
But the problems still overwhelm the progress. And urban schools are fighting a battle they cannot win without strong support from local, state, and federal political leaders, and from voters and taxpayers outside the cities. If the states, in particular, do not accept this challenge, the continuing national movement to improve schools will fail. Today, one out of every four American children ---- 11 million young people ---- goes to school in an urban district. [Id. at 6.]
As Education Week demonstrates, the problems of urban education are national, not peculiar to New Jersey. The crisis is obvious; the solutions are elusive.