The opinion of the court was delivered by: Poritz, C.J.
On motion in aid of litigants' rights from the judgment of this Court, whose opinion is reported at 153 N.J. Super. 480 (1998).
The opinion of the Court was delivered by
Nineteen months ago, this Court accepted the commitment made by the Commissioner of Education to undertake, in good faith, broad-based educational reform in New Jersey's poor, urban school districts (the "Abbott districts"). Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V). In reliance on the Legislature's "clear recognition of the need for comprehensive substantive educational programs and standards," and on the Commissioner's proposals for reform, we stated our expectation that twenty-eight years of "major judicial involvement" in this extraordinary effort should end. Id. at 490.
Yet, once again, we find that we must address issues we thought settled. By motion in aid of litigants' rights, plaintiffs in Abbott V have returned to the Court. They ask us to order defendants to "implement forthwith [the] well-planned, high-quality preschool education" promised by the Commissioner during the hearings in Abbott V; "provide such facilities and . . . adequate funding as necessary" to implement the required preschool programs; and "designat[e] a Superior Court Judge to supervise" implementation and "adjudicate . . . systemic issues arising [from] non-compliance with . . . Abbott V." At the heart of their request for relief is a claim that the Commissioner has repudiated his promise to provide quality preschool education for the disadvantaged school children who reside in the Abbott districts. In support of their claim, plaintiffs allege systemic failures that only the Court can address.
We reject plaintiffs' contention that the Commissioner has backed away from his efforts to reform education in the Abbott districts, or that his alleged non-compliance with Abbott V demonstrates bad faith. We are satisfied that any discrepancies in the implementation of our decree have resulted from misunderstandings in executing the Court's mandate. We are, however, convinced that the manner in which the Department of Education (DOE) has carried out the preschool mandate of Abbott V is not consistent with the Commissioner's representations to the remand court in that case. We conclude that the DOE's use of community care providers staffed by uncertified teachers and governed by Department of Human Services (DHS) daycare standards violates the Abbott V requirement to establish quality preschool programs for three- and four-year old children. Our intervention is warranted now to assure that the implementation of preschool in the Abbott districts is faithful to the programs proposed by the Commissioner and accepted by this Court less than two years ago. *fn1
Abbott V was grounded in "a top-to-bottom commitment to ensuring that the [promised] reforms [would be] conscientiously undertaken and vigorously carried forward." Abbott V, supra, 153 N.J. at 528. The task was, and is, enormous. In effect, a major transformation in the educational system servicing the State's poor, urban districts has been authorized by the Legislature, advanced by the executive branch, and affirmed by the Court. It is not surprising that the road has been rough, or that progress has been slower than the parties had hoped it would be. There is, indeed, general acknowledgment among the parties and amici that the time frame established by the Court for implementing preschool programs in all of the Abbott schools by the 1999-2000 school year was difficult to meet.
By the same token, another generation of children will pay the price for each year of delay. The record in Abbott V overwhelmingly demonstrated that substantive, quality early- childhood education does make a difference, and that poor urban youngsters do better academically when they have participated in enriched preschool programs from an early age. Our Constitution requires a thorough and efficient education for all of our children because we believe that educated citizens are better able to participate fully in the economic and communal life of the society in which we all live. Quality preschool, whole school reform, adequate, secure school buildings in which to learn, health and social services, and other programs as needed -- those are the elements of a commitment made to the Abbott children, to their future.
The momentum for reform must not slow. In Abbott V we made certain assumptions about the proposals before us. It is appropriate now for us to clarify those assumptions in order to provide further guidance for the implementation of preschool programs in the Abbott districts.
The Court's intent in Abbott V was expressed in the first paragraph of its opinion:
Our Constitution mandates that the "Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." N.J. Const. art. VIII, § 4, ¶ 1. This decision explains the remedial measures that must be implemented in order to ensure that public school children from the poorest urban communities receive the educational entitlements that the Constitution guarantees them.
[Abbott V, supra, 153 N.J. at 489.]
The genesis of the remedial measures endorsed by the Court in Abbott V lay in the remand proceedings ordered a year earlier in Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV). In Abbott IV, we reaffirmed our earlier direction "that the State address special education needs by determining and implementing . . . supplemental programs essential to relieve students in the special needs districts [SNDs] of their unique disadvantages." Id. at 189-90. Because the scope and content of appropriate programs for at-risk children lies "squarely within the special expertise of educators," id. at 199, we remanded the matter to the Superior Court to conduct proceedings designed to identify both supplemental program and capital facility needs. Id. at 199-200.
The proceedings that followed are described in considerable detail in the report of Judge King, a Presiding Judge of the Appellate Division temporarily assigned to oversee the remand, Abbott V, Appendix I, 153 N.J. at 529, and in the Court's opinion in Abbott V, supra, 153 N.J. at 493. It bears repeating, however, that educators with substantial credentials *fn2 participated in seventeen days of hearings that focused on reports submitted by the Commissioner and the plaintiffs, and that a highly-qualified, court-appointed expert, Dr. Allan Odden, *fn3 assisted Judge King and submitted his own report on supplemental program and facilities issues. Abbott V, Appendix II, 153 N.J. at 636. After reviewing Judge King's recommendations and the extensive record of expert testimony and research results developed on remand, this Court, in large measure, adopted the Commissioner's proposals.
Most relevant to plaintiffs' motion, the Court found that the Legislature had recognized the need for "early childhood education for three- and four-year olds in the poorest school districts." Abbott V, supra, 153 N.J. at 505 (discussing Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA), specifically N.J.S.A. 18A:7F-16). Based on the funding formula found at N.J.S.A. 18A:7F-16, the Commissioner's authority as delineated in N.J.S.A. 18A:7F-6b, and the administrative regulation implementing CEIFA, N.J.A.C. 6:19-3.2d, "[t]he Court direct[ed] the Commissioner to exercise his power . . . to require all Abbott districts to provide half-day pre-school for three- and four-year olds." Abbott V, supra, 153 N.J. at 508. We said further:
[T]he Commissioner must ensure that such programs are adequately funded and [must] assist the schools in meeting the need for transportation and other services, support, and resources related to such programs. The Commissioner may authorize cooperation with or the use of existing early childhood and day-care programs in the community.
It is the scope and content of our direction in Abbott V that requires further discussion in this opinion.
We begin with plaintiffs' general contention that "the State has gravely defaulted on its commitment" to implement "well-planned, high quality preschool education for all Abbott children." Plaintiffs focus on such quality indicators as substantive educational programming guided by DOE standards, as well as other indicators understood to affect quality including, inter alia, class size, teacher certification, and supplemental program needs, all funded at the levels requested by the SNDs. We will speak to these concerns separately; however, some comments about quality preschool education are warranted.
The testimony of numerous educators, the reports submitted by the parties and by Dr. Odden, and the recommendations of Judge King confirm a core understanding that the needs of at-risk children can be met only by quality preschool programs. *fn4 By way of example, Dr. Odden, who had recommended full-day programs for three- and four-year olds, stressed the "large positive benefits" that would result:
Research is very clear that high quality, preschool programs for students from low income backgrounds have discernible, positive, and significant impacts on student academic achievement in the early academic years
[Abbott V, App. II, supra, 153 N.J. at 648 (emphasis added).]
Abbott V, quoting the Commissioner, emphasized these points:
As the Commissioner's research itself demonstrates:
"Well-planned, high quality half-day preschool programs . . . help close the gap between the home and school environments and the educational expectations that lead to academic success."
[Abbott V, supra, 153 N.J. at 503 (alteration in original)(emphasis added).]
The disagreement, then, is not about the need for quality preschool education; as is too often the case in such matters, the disagreement is about the program components that constitute quality preschool education. In Abbott V, we relied heavily on the specific proposals put forward by the Commissioner and his experts without describing them in detail. We do so now because the programs that have been implemented do not conform to the proposals that were accepted by the Court.
Plaintiffs and amici allege that the Commissioner has not established substantive standards describing the educational content of preschool programs. Without core curriculum standards akin to those developed by the DOE for grade schools but specific to preschool levels, disadvantaged children in the Abbott districts will get little more than daycare. This nomenclature is critical. The distinction between "daycare," which does not generally provide structured, educational programming geared toward school-readiness skill development, and "preschool" or "preschool education," which is intended to prepare children for success in elementary school, lies at the core of this case. In order for disadvantaged children to develop the language skills and discipline they need for later academic success, there must be educational content to their preschool experience.
The record is sparse on this subject. Under regulations adopted by the DOE on September 1, 1999, districts are required to provide developmentally appropriate programs, under the supervision of master teachers, for the 1999-2000 school year, and the Department will provide districts, by the 2000-2001 school year, with specific guidance on developmentally appropriate standards/expectations to provide uniform quality.
N.J.A.C. 6:19A-3.3(d) deals with master teachers, who are to "coordinate and facilitate early childhood programs and assist in the provision of early childhood professional development." Each district is expected to provide one master teacher for every twenty preschool classrooms. Where the districts contract with DHS-licensed child care providers, see infra at ____ (slip op. at ___), it is the master teacher who is expected to assist the providers in the development of programming "aligned with the Core Curriculum Content Standards and . . . integrated with the [Whole School Reform] model(s), or the whole school alternative program design(s) utilized in the district . . . ." N.J.A.C. 6:19A-3.3(b)(2).
The intent of these provisions, as stated by the Commissioner, is to "establish uniform standards for early childhood programs that emphasize articulation with whole school reform programs and Core Curriculum Content Standards." We are also informed that the DOE has hired Dr. Robert Slavin, co-director of the Center for Research on the Education of Students Placed at Risk, to assist in the development of a preschool curriculum to complement the Success For All (SFA) program discussed in Abbott V. In three districts there already exists a "Curiosity Corner" pilot that accomplishes this goal. Similarly, some districts are using other models described in Abbott V, such as the High Scope/Perry Preschool program and the Abecedarian model.
We understand that the Commissioner has established Rapid Intervention Teams to work with the districts to oversee both the opening of preschool programs and to assist daycare providers in "molding together, both fiscally and programmatically, two very different systems." Such staff assistance cannot substitute for substantive standards promulgated by the Commissioner. Although the DOE has promised to adopt standards by the 2000-2001 school year, more concrete guidance for this school year would have been preferable. Without adequate standards the DOE will be unable to evaluate preschool programs or to prevent the development of a two-tiered system in which one group of children is offered daycare and another group is offered high-quality preschool. We take notice of draft standards now under review by educators around the state. See http://www.state.nj.us/njed/ece. It is reported that the DOE anticipates a final document shortly.
Substantive educational guidance for all Abbott district preschool programs is an essential component of DOE's commitment to the Abbott districts and must be adopted by April 17, 2000, so that the districts will be able to prepare for the 2000-2001 school year.
B. Other Elements of Quality Preschools
Plaintiffs, joined by the New Jersey Education Association and the Association for Children of New Jersey (ACNJ), also contend that the teacher certification standards set out at N.J.A.C. 6:19A-3.3 will not guarantee high-quality preschool. The ACNJ points to N.J.A.C. 6:19A-3.3(b)(4)(ii), under which DHS- licensed daycare providers can hire new teachers holding only a two year associate's degree *fn5 and not a bachelor's degree. They explain that the Commissioner promised certified teachers, but that the new regulations permit the hiring of non-qualified staff. Likewise, the ACNJ has expressed its concern that even the associate's degree may be waived under section 3.3(c) of the DOE regulations, a provision that the ACNJ claims is so vague it will undermine the certification requirements entirely.
In the Abbott IV remand proceedings the State proposed "one teacher and one aide for each half-day preschool class." Abbott V, App. I, supra, 153 N.J. at 559. The estimated budget at "$51,000 per teacher," ibid., suggests that certified teachers were contemplated. Judge King observed that the State's specific "recommendations and budgets for preschool . . . were consistent with . . . legislative requirements," that anticipated certified teachers. Abbott V, App. I, supra, 153 N.J. at 560. There was also, during the remand, some discussion of specialized credentials for preschool teachers. Dr. Barnett, testifying for the plaintiffs, supported the establishment of new teacher credentials geared toward the education of children under six. At no point was it suggested that the then-existing regulations requiring a certificate, N.J.A.C. 6:11-31(a), with an elementary endorsement, N.J.A.C. 6:11-6.2(a)(6) (described as "authoriz[ing] the holder to serve as elementary school teacher in ...