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Abbott v. Burke

February 21, 2002


On motion in aid of litigants' rights from the judgments of this Court, whose opinions are reported at The opinion of the court was delivered by: Poritz, C.J.

Argued September 25, 2001

This is the second motion in aid of litigants' rights filed by the Education Law Center (ELC or plaintiffs) since the Court decided Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V). See Abbott v. Burke, 163 N.J. 95 (2000) (Abbott VI). As before, the ELC alleges that the Commissioner of Education (Commissioner) has failed to comply with the Court's mandate in Abbott V, and now Abbott VI, and requests that we order specific relief in respect of preschool programs in the Abbott districts, including the appointment of a judge of the Superior Court to hear and resolve anticipated disputes. For the reasons set forth in this opinion and in our Order of October 22, 2001, we have provided a schedule for decision-making by the Executive Branch and by our Appellate Division to ensure that Abbott districts' preschool program and budget proposals are timely reviewed and that "final dispositions are issued in time for the 2002-2003 school year." Abbott v. Burke, No. M-1131, at 3 (N.J. Oct. 22, 2001) (October Order). We have, however, declined to appoint a Standing Master for Abbott matters. Having "commit[ted] in Abbott V and Abbott VI to use of the administrative process established by the Legislature for Executive Branch decision-making," we find no reason to retreat from that commitment now. Ibid.

This opinion amplifies our October Order and clarifies further our direction in Abbott VI.

I. Process Issues

In Abbott V, the Court determined that disputes involving educational programs in the Abbott districts "shall be considered ?controversies' arising under the School Laws[,] N.J.S.A. 18A:7A- 1 to 7F-34." 153 N.J. at 526. Such controversies, we noted, may be heard as contested cases by an Administrative Law Judge, whose recommendation the Commissioner could approve or disapprove, with the final decision left to the State Board of Education on appeal by the losing party.*fn1 Even when the ELC returned to the Court in July 1999 claiming non-compliance by the Commissioner with the mandates of Abbott V, there were factual and legal issues concerning preschool programs pending before the Chief Judge of the Office of Administrative Law (OAL) that we did not resolve when we issued Abbott VI. See Abbott VI, supra, 163 N.J. at 120. In Abbott VI, we reaffirmed our previous determination sustaining in large measure the Commissioner's proposals for the operation of quality half-day preschool in the Abbott districts. Because the disputes centered around substantive educational standards, teacher certification, class size, daycare-provider contracts, adequate facilities, supplemental funding, and community outreach, we focused on the resolution of those issues in order to provide further guidance and expedite program implementation. We anticipated that the unresolved matters would be timely reviewed through the administrative process.

Our opinion in Abbott VI was filed on March 7, 2000. In April 2001, Acting Chief Judge Masin (Chief Judge) released his Initial Decision in In re Abbott Global Issues, No. EDU 3246-01 (OAL April 20, 2001) (OAL Initial Decision). As its name suggests, that case arose out of a set of so-called systemic issues identified by the ELC prior to the Court's decision in Abbott VI and modified thereafter to reflect our ruling. Those issues were considered by the ELC to "involve general systemic deficiencies in the manner and process by which the [Department of Education] has responded to its [Abbott preschool] obligations." Id. at 4. Individual district-related cases remained with other Administrative Law judges and were apparently withdrawn, settled or held awaiting a decision in In re Abbott Global Issues.

When, on May 17, 2001, plaintiffs moved in aid of litigants' rights before this Court, we held review of their application pending the Commissioner's final decision in response to the Chief Judge's recommendations. Under the legislative scheme for administrative adjudication, it is the Commissioner's task to consider the policy ramifications of the Abbott cases. The Commissioner's final decision is therefore an integral and necessary step in the administrative process. See, e.g., N.J.S.A. 52:14F-7; IMO Certain Sections of the Uniform Administrative Procedural Rules, 90 N.J. 85, 91-92 (1982). After the issuance of the Commissioner's Decision in June 2001, and after supplemental briefing and oral argument in September 2001, we ordered relief in the form of time frames for expeditious dispute resolution within the structure established by the Legislature. See October Order.

This procedural history is important. Although the venue for Abbott disputes has been established in the Administrative Procedures Act, Abbott V, supra, 153 N.J. at 526, the chronology of this dispute informs us that these matters are not promptly resolved. At best, the Department of Education (DOE or Department) has been slow to respond to the districts' submissions. At worst, the Department's responses have provided little guidance so late that resolution cannot be accomplished before the next group of children is scheduled to arrive in September. In short, on the question of timely disposition, the record is dismal.

Timely disposition of contested Abbott cases is critical for children living in the Abbott districts. Decision-making in respect of programs for the next school year must be completed in time for implementation in the next school year if the process is to be meaningful. As more parents become aware of the opportunity to enroll their children and do so, classrooms must be available, certified teachers must be hired, and instructional materials must be prepared, to mention but a few of the many necessary components of an expanding preschool program. When that does not happen, the high quality educational experience promised for the Abbott districts cannot be fully implemented from year to year. When three- and four-year-old children are denied the opportunity to attend a quality preschool, the advantages of early exposure to that educational experience are irretrievably lost.

But the Court's October Order does more than establish a schedule for the submission, review and appeal of Abbott District preschool program and budget proposals. In Abbott VI, we said,

Cooperation between the districts and the DOE is essential to this effort if it is to succeed. For too long, there has been suspicion and distrust. The [Association for Children of New Jersey] has built a coalition of educators and providers that demonstrates the value of collaboration and consensus building. It is our hope that the adversarial relationship between the parties will give way to a cooperative effort focused on the provision of high-quality preschool programs for children in the Abbott districts. The children deserve no less. [163 N.J. at 120-21.]

That cooperative effort is only possible if the DOE staff works with the Abbott districts in the preparation of their plans, and continues through the administrative appeal process to accept supplemental documentation and to assist the districts in curing any deficiencies that have caused the Department to reject any plan.

Our October Order also denied ELC's request for a Standing Master. Adherence to an administrative process tied to expeditious decision-making that includes cooperative efforts toward the resolution of disputes is greatly preferred over a structure superimposed by the courts. We do not find deficiencies in the implementation of Abbott preschool programs sufficient to justify the extreme remedy of court supervision. We remain troubled, however, by the delays and the DOE's apparent reluctance to deal with funding and other difficult but determinative issues in a timely manner. Abbott V was decided more than three-and-a-half years ago. The districts' Applications for State School Aid indicate that, as of October 13, 2000, just over 22,000 preschool students were enrolled in the Abbott programs. According to plaintiffs, 34,600 three- and four-year-old children were expected to attend those programs in 2001-02. Although estimates vary, as many as 58,600 children may have been eligible to attend as of September 2001. Clearly, much remains to be done.

Nonetheless, we sharply disagree with our dissenting colleague regarding the progress made in the development and implementation of the Abbott preschool programs. He continues to urge court supervision of responsibilities entrusted to the Executive and Legislative branches of our government by the New Jersey Constitution. This record cannot, however, support the extraordinary remedy the dissent would grant. It was in 1998 in Abbott V, that this Court first considered the specific preschool proposals that had been presented in hearings before Special Master Judge King. 153 N.J. at 493. During the intervening four years, as required by Abbott V, id. at 501-02, the State has undertaken whole school reform in the Abbott districts, including the preschool programs at issue in this case. Today, three out of every five children in the Abbott districts participate in those programs. Much has been accomplished. In short, because of the progress made and because of the ongoing effort to fulfill the Abbott mandates, we cannot justify a new and superseding role for the courts in this matter.

We are further encouraged by the collaborative effort now underway. By Notice of Motion filed on December 20, 2001, plaintiffs sought a stay for one month of the January 5, 2002 deadline established by the Court for the DOE's initial determinations on the Abbott districts' 2002 preschool program and budget proposals. Because a new Governor was to take office on January 15, 2002, the parties argued that a one month extension for the DOE, with a concomitant extension for any subsequent appeals, would both facilitate decision-making by the incoming administration and permit the appellate process to be completed before the state budget is approved. The ELC and Governor's Special Counsel informed the Court that representatives from the Abbott districts, community providers, Head Start, and the Early Care and Education Coalition are participating in this effort with the plaintiffs and the new administration. In light of our consistent call for cooperation between the parties, we approved plaintiff's request on December 21, 2001.*fn2 We anticipate that even if some of the Abbott districts are unable to work out their differences with the DOE within the extended time frame, there will be continuing efforts to do so throughout the administrative appeal process.

II. Systemic Issues

As Chief Judge Masin points out in his Initial Decision, the question whether the DOE has met the Court's mandates in Abbott V and Abbott VI presents a moving target for review. OAL Initial Decision at 36-37. During the period after this case was filed in 1999, up to April 2000 when the OAL Initial Decision issued, Abbott VI was decided and the Department promulgated regulations, published Early Childhood Program Expectations: Standards of Quality (Expectations),*fn3 and provided training for district personnel. OAL Initial Decision at 36. Even as to the global issues, the factual context was changing. As for the parents and students (from Paterson, Jersey City, Newark and West New York) represented by the ELC, the Chief Judge observed that "the necessary level of evidence surrounding the[ir] actual individual and particularized needs [was] not before [him]." Id. at 37. Even so, the parties continued to present, by certifications to this Court, unfolding "factual" information relating to both systemic and district specific issues. We are unable to resolve district specific issues on this record and anticipate that they will be either cooperatively resolved for next year as the Department reviews the district plans submitted on November 15, 2001 or through the administrative appeal process. We will therefore address only those systemic or global issues considered by Chief Judge Masin and the Commissioner.

A. Substantive Educational Standards

In Abbott VI, we required the Department to provide "[s]ubstantive educational guidance for all Abbott district preschool programs . . . by April 17, 2000" in preparation for the 2000-01 school year. 163 N.J. at 107. That requirement stemmed from a set of related concerns: the need for criteria against which district programs can be evaluated and for a mechanism "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." Ibid. Substantive educational standards provide goals for teachers and students alike, as well as direction for achieving those goals in the classroom.

In response to our mandate in Abbott VI, the DOE adopted the Expectations in April 2000. DOE, Expectations, at (last visited on Dec. 31, 2001). Similar to the Core Curriculum Content Standards (CCCS)*fn4 for grades K-12, the Expectations outline the goals of preschool education without, however, specifying the details of a curriculum aimed at achieving the desired results. Subsequently, on December 17, 2001, the DOE proposed an amendment to N.J.A.C. 6A:24-3.3(a)(4) requiring districts to integrate the goals of the Expectations into their preschool programs. 33 N.J.R. 4186, 4187.

Because the DOE's position on the Expectations is that they "are not meant to be used in isolation, but as one of the many resources that are essential to building a developmentally appropriate early childhood program," Expectations, supra, at Preface, ¶ 3, the Department promised the creation of a curriculum strategy, the Early Childhood Education Curriculum Framework (Framework), to supplement the

Expectations with substantive guidance and to aid in the realization of the Expectations. DOE, Framework, at (last visited on Dec. 31, 2001). The DOE has not issued a final version of the Framework, and, therefore, plaintiffs ask us to declare that the DOE has failed to fulfill the mandate of Abbott VI. Plaintiffs submit that the Expectations alone do not provide the guidance necessary for districts and community providers to implement uniform, high-quality preschool education in the Abbott districts.

The Commissioner has advised that the development of the Framework has significantly advanced. DOE, Early Childhood Education: Advancing Implementation, Ch. 3(a), at (Advancing Implementation) (last visited on Dec. 31, 2001). In September 2001, the Department released, in draft form, an extensive substantive chapter on strategies to meet preschool expectations and to guide assessments of the children's progress. The chapter covers social and emotional development, creative arts, mathematics, science, and other areas. DOE, Framework, at Continued progress with the Framework is essential for the scheduled review by the early childhood education community to be effective and for educators to have adequate time to plan programs for the 2002-03 school year. For the current school year, the Abbott districts are integrating the goals of the Expectations with nationally recognized preschool curriculum models. Twenty-four Abbott districts employ one or more of these recognized models: five use Curiosity Corner, eleven use High/Scope or their own program based on High/Scope, four use Creative Curriculum, one uses Scholastic's Early Childhood Workshop, two use a hybrid of at least two of the aforementioned programs, one uses a hybrid of Abecedarian and the Kellog Five Star Project, and six have developed their own curricula.

In his June 1 decision, the Commissioner "direct[ed] . . . the Department [to] revise its practices and procedures as may be necessary to include . . . review" of "district curriculum plans" and to remain faithful to the Framework development schedule established in the Department's Advancing Implementation document. In re Abbott Global Issues, No. 171-01, slip op. at 73 (Commissioner of Education June 1, 2001) (Commissioner Decision); see also N.J.A.C. 6A:24-3.3(a)(4). DOE review of curriculum plans will assist the districts in compliance with Framework strategies. See proposed amendment to N.J.A.C. 6A:24-34 at 33 N.J.R. 4186, 4187 (Dec. 17, 2001). To ensure availability of detailed curricula for use in the 2002-03 school year, and to meet the DOE's time frame for implementation workshops, the DOE must, as scheduled, complete a final draft of the Framework by April 30, 2002. See Advancing Implementation.

B. Enrollment and Recruitment

Enrollment in Abbott preschool programs is not compulsory. If the promise of early childhood education is to be met, parents in the Abbott districts must not only be aware of the opportunity offered, but must be informed about the advantages of participation for their children. In some communities, recruitment will be critical to the success of the Abbott preschool venture.

The issue in Abbott VI concerned the "need for community outreach to inform parents about the availability of preschool for three- and four-year old children in the Abbott districts." Abbott VI, supra, 163 N.J. at 119. The Court anticipated at that time that existing enrollments could be examined in order to determine, based on the projected preschool population, "whether parents in the community are aware of the district's preschool programs." Ibid. Low enrollments would "trigger a determination" of parental awareness and, then, "concerted outreach efforts to improve [those] enrollments." Ibid.

At present, if the number of children "in the early childhood programs do[es] not exceed 50 percent of the projected preschool population in the district, the [local] board [is required to] develop a corrective action plan to increase enrollments which shall be approved by the Commissioner and then implemented by the district." N.J.A.C. 6A:24-3.3(a)(8). The issue addressed below by the Chief Judge was, therefore, "whether the Department, faced with evidence of such ?low' enrollments, ha[d] taken appropriate steps to require that the districts determine the awareness of parents about . . . preschool programs and, as appropriate, adopt plans to promote awareness and . . . encourage enrollment." OAL Initial Decision at 42. A problem arose, however, because of a disagreement between the parties "regarding the appropriate manner of determining the projected number of three- and four-year-olds in a district." Ibid. When outreach efforts are initiated based on the percentage of total eligible students, accuracy in projecting that number is essential.

Before the Chief Judge, the Department's expert asserted, without documentation, that "each district other than Elizabeth is serving at least 50% of its ?projection.'" Ibid. Plaintiffs' expert used his own methodology and calculated the number of eligible three- and four-year-old students in each district at twice the district's first-grade enrollment. Ibid. Using that figure and comparing it to the actual number of students enrolled, plaintiffs' expert concluded that twelve districts had enrollment rates below fifty percent, thereby triggering the community outreach corrective action requirement for those districts. Ibid. On the record before him, the Chief Judge was unable to determine which expert's calculation, if any, yielded the correct measurement of enrollment. Id. at 44. Thus, he was unable to adjudicate the issue whether, in respect of any Abbott district, the community outreach requirement had been triggered. In lieu of that determination, the Chief Judge urged the DOE to adopt a uniform standard through the administrative rulemaking process to measure districts' preschool enrollment and to determine the need for community outreach. Id. at 45. The Commissioner "fully concurred" with the Chief Judge and directed the development of appropriate regulations. Commissioner Decision at 74-75.

On November 5, 2001, proposed amendments to N.J.A.C. 6A:24-3.3 were published in the New Jersey Register. 33 N.J.R. 3716, 3717-18. By those amendments, the Department has set forth a uniform method for calculating the universe of eligible three- and four-year-old children that averages the total number of public and non-public school kindergarten and first grade pupils in a district. N.J.A.C. 6A:24-3.3(a)(8). "[A]ppropriate adjustments" may be made to that figure "based upon the documented history of the actual enrollments in the three- and four-year-old programs over the last three years," id. at (a)(9)(I), and to reflect "any factors in the community that might affect the growth rate in the three- and four-year-old populations, such as a large employer moving in or out of the district, or a new housing development . . . ." Id. at (a)(9)(ii). This method yields "the minimum projected number of three-year-old and four-year-old children that must be served in the next school year . . . ." Id. at (a)(9)(iii). In addition, the DOE has proposed an amendment to N.J.A.C. 6A:24-3.3(a)(8) that increases the outreach trigger from the current 50% to 90% by the 2003-04 school year. Id. at (b)(1) (moving the 2001-02 trigger to 70%, the 2002-03 trigger to 80%, and the 2003-04 trigger to 90%). We note as to those proposals that the districts' success in conducting outreach programs can be reviewed only if a uniform method for calculating projected enrollments is used. The variability that results when each district is permitted to develop its own methodology makes it considerably more difficult for the DOE to evaluate effective strategies to improve preschool attendance.

In the end, it is the outreach effort that is critical to the success of the Abbott programs. We recognize that even if every parent is informed about the availability of preschool, not all parents will choose to enroll their children. As the State's experts reported in Evaluation of Early Childhood Programming in the 30 Abbott School Districts: Phase 1 Report (Feb. 2001), some parents may not wish to "put their child[ren] in the ?world' too soon," while others may prefer a more family-oriented child care environment or the flexibility of alternative child care options. Id. at 10. The decision not to enroll a child in the district's preschool program also may be affected by cultural attitudes, including "distrust of the educational system," among other things. OAL Initial Decision at 43.

The goal is to inform parents of preschool age children about the opportunity to enroll their children in the Abbott programs. In other words, children should not be denied the benefits of a quality preschool program simply because their parents do not know it exists. This appears to be an area where partnering with community organizations might be of great assistance in achieving outreach goals. By way of example, we are informed that the Department of Human Services entered into a $1.3 million contract with the Hispanic Directors Association of New Jersey (Association) to provide recruitment services in Spanish-speaking communities. According to the State, these efforts have borne fruit. As of May 1, 2001, 1,789 of the 3,182 families contacted by the Association advised that they would enroll their children in an Abbott preschool program. Such results are encouraging.

Nonetheless, thousands of children have not been enrolled in preschool in the Abbott districts. The DOE must work with the districts to develop corrective action plans when the districts do not meet enrollment goals and must review, with the districts, the effectiveness of these plans during the implementation phase.

C. Head Start/Community Providers

Plaintiffs and Amici allege that the Commissioner of Education has willfully violated the Court's Abbott mandates by unlawfully excluding Head Start programs from district plans and by insufficiently funding community providers generally.

In Abbott V and Abbott VI, we considered the use of community daycare centers as part of the Abbott preschool program. At that time, both the DOE and the plaintiffs supported the use of community daycare centers because, as a practical matter, "a readily-available source of staff and facilities could be found in the DHS-licensed programs then operating in the Abbott districts." Abbott VI, supra, 163 N.J. at 114. Indeed, the DOE had adopted N.J.A.C. 6:19A-3.3(b) (revised and now found at N.J.A.C. 6A:24-3.3(b)), which required districts to collaborate with community providers "whenever practical." Abbott VI, supra, 163 N.J. at 114-15. In Abbott VI, the issue was not whether community daycare centers should be included in the district program, but whether they could be included, because "they are not designed to provide a preschool educational experience that prepares disadvantaged children to achieve academically in school." Id. at 114. We approved the use of community providers with the caveat that daycare centers could not be incorporated into Abbott district programs unless they met the stringent requirements imposed on those programs. In other words, a two-tier system that denied any child a quality preschool experience would not be permitted. It was in that context that we stated, "When an existing daycare center is unable or unwilling to comply with those requirements, cooperation with that center would be presumptively not ?practical' under N.J.A.C. 6:19A:3.3(b)." Abbott VI, supra, 163 N.J. at 115.

Today, plaintiffs complain that certain of the Head Start programs have been excluded from the district plans by the DOE. We agree with the Chief Judge that N.J.A.C. 6A:24-3.3(b)*fn5 requires the districts to "wherever possible make use of existing community-based programs to deliver preschool services rather than duplicate such programs." OAL Initial Decision at 46. We also read the DOE regulation to establish a presumption that duplication of services is not permitted unless substantial reasons are set forth in the Department's decision document.

That said, we are troubled by reports that Head Start programs are facing decreasing enrollment, escalating loss of staff, and financial difficulties. We are told that certified staff has fled to district-run programs, lured by the higher compensation packages those programs offer. It is specifically claimed that seventeen Head Start programs in Abbott districts have lost more than 125 certified teachers in the last three years, and that all of the education staff and social workers have left the Head Start program serving Asbury Park, Long Branch, Neptune, and Keansburg.

We recognize the invaluable service that Head Start provides in the Abbott districts. In Abbott VI, we observed that Head Start "present[s] unique issues." 163 N.J. at 116. Designed to fit the needs of the community, Head Start offers low-income children comprehensive medical, dental, mental health, nutrition, family involvement, and transportation programs, and has been instrumental in increasing the school readiness of young children from low-income families. United States Department of Health and Human Services, Administration for Children and Families, Head Start Children's Entry into Public School: A Report on the National Head Start/Public School: Early Childhood Transition Demonstration Study (2000) (reporting that Head Start children enter school "ready to learn" and able to achieve at national academic norms). It has been represented to us that because of Head Start's unique features, many parents prefer Head Start programs over district-run programs.

Nonetheless, "[s]tate preschool standards are . . . more demanding than Head Start program standards," Abbott VI, supra, 163 N.J. at 116, and, therefore, the DOE must supplement existing Head Start funding with state funding sufficient to allow Head Start to meet state standards and to retain certified teachers. The Chief Judge expressed his frustration at the lack of a record in respect of an alleged breakdown in discussions between state officials and Head Start providers. OAL Initial Decision at 48. We have been informed that the disputes are not about the use of Head Start as part of the Abbott district preschool plans, but, rather, the cost of bringing Head Start up to state standards.

To avoid "duplicat[ing] programs or services otherwise available in the community," as required by N.J.A.C. 6A:24- 3.3(b), districts should utilize Head Start providers unless they are not "able and willing to comply" with Abbott preschool standards, or unless the cost of doing so is demonstrably more expensive than other high-quality alternatives. The districts must develop budget proposals based on a careful analysis of a provider's pre-existing obligations and funding sources. The DOE need not offer additional funding for services designed to meet federal regulations unless there is a need to improve those services to meet state standards. In sum, reasonable supplemental funds must be provided so that Head Start (and other appropriate community providers) can meet the more demanding State preschool requirements.

Ensuring that qualified, certified teachers are available for all Abbott programs is an essential component of adequate state funding. Districts must address salary parity between district-run and community provider-run programs in their needs assessment evaluations. If community providers, such as Head Start, can demonstrate an inability to retain qualified staff due to salary parity problems, the DOE must consider additional funding for teacher salaries.

Finally, we note that N.J.A.C. 6:11-5.2(f) "grandfathers" certified elementary school teachers with two years preschool experience by waiving the requirement of Abbott VI that they obtain an instructional certificate with a P-3 endorsement in order to be hired as teachers in Abbott preschool programs.*fn6 We find the grandfather provision to be a reasonable response to the establishment of new certification requirements that would otherwise negatively affect experienced, certified teachers. We are confident the exemption will not compromise the education of any preschool children. The DOE, which historically grandfathers all certificate holders affected by new requirements, strictly limited N.J.A.C. 6:11-5.2(f) to those teachers with the training and experience it judged fully adequate to the task. The parties agree that there is a teacher shortage that affects both community daycare providers and district-run preschools. Additional funding, when appropriate for community providers, will help them to retain qualified teachers, but it will not increase the pool of qualified teachers.*fn7

D. The Role of Assessment/Funding

The question of funding a "thorough and efficient" education in the Abbott districts has plagued this litigation from the start. See Abbott v. Burke, 100 N.J. 269 (1985). In Abbott VI, we repeated our concern that "adequate funding remains critical to the achievement of a thorough and efficient education." 163 N.J. at 118 (quoting Abbott V, supra, 153 N.J. at 517-18). And, yet again, plaintiffs complain that the DOE has neither provided sufficient budgetary guidance to the districts, nor allocated funding based on actual need. More specifically, plaintiffs claim that the DOE has imposed upon the districts pre- established, arbitrary "per-student" funding amounts that do not take into account real "per-student" costs. The Chief Judge framed the global question as "whether there are systemic factors that exist that undermine the ability of the districts to obtain the funding they need or that limit the ability of the Department to assess that need." OAL Initial Decision at 50.

Although he acknowledged that the funding disputes of individual districts were not a proper subject for review in the global issues matter (and should instead be resolved in separate proceedings), the Chief Judge nonetheless examined the funding experiences of the Paterson and Jersey City School Districts to aid in his inquiry on the systemic issue. He found that neither the Paterson or Jersey City application, nor the DOE's responses to those applications, provided adequate bases for the funding amounts initially requested or ultimately granted. Paterson, for example, at one point changed its per-student funding proposal, but failed to submit any information "to allow anyone to understand whether [the amount requested was] based upon an assessment that the . . . figure [was] adequate to provide a well-planned, high-quality education." Id. at 52.

The DOE was equally unhelpful in its responses. Its reply to Jersey City was described by the Chief Judge as containing "blanket statement[s]" providing "no explanation [in respect of] the sufficiency" of the funding amounts approved. Id. at 53. Of particular concern to the Chief Judge was the prevalence of DOE funding approvals of $4,500 per student with no explanation whether that amount was sufficient. In short, he found "no evidence that the districts made a program-by-program, center-by- center assessment" of the funding required to deliver an "appropriate education." Id. at 54. Nor was there any evidence that "if such assessments were performed[,] . . . the DOE reviewed these assessments or even saw them." Ibid. As a result, it was not possible to determine whether the funding amounts requested by the districts and/or granted by the DOE were "adequate" for the provision of "fully compliant" Abbott preschool programs. Ibid. At the same time, the funding process and the DOE's responses suggested an "appearance of . . . arbitrariness." Id. at 53.

The Chief Judge concluded that the districts must "conduct reasonable evaluations, reviews and assessments of themselves, their preschool children and their providers' circumstances and . . . use these as aids in formulating plans for the implementation of Abbott preschool." Id. at 55. He required those findings to be "made available to the DOE so that it too can, as it must, conduct reasonable reviews and assessments of the districts' actions." Ibid. The Chief Judge also concluded that clear guidelines must be issued by the DOE so that districts will be aware of the information needed by the Department to conduct meaningful evaluations of the districts' plans. Ibid. The Commissioner "fully concur[red] that assessment of needs and evaluation of programs is central to any meaningful implementation of Abbott mandates . . . ." Commissioner Decision at 81. Thus, he directed that

to the extent that the Department may not be ensuring that assessments of student need are occurring or providing sufficient guidance as to how they are to be conducted . . . , the Department shall . . . recommend to the Commissioner such revisions to its practices and procedures as may be necessary . . . . [Id. at 81-82.]

Subsequently, the DOE revised various budget forms and materials available at the Department's website, including a "Provider Budget Worksheet," an "Abbott Provider Budget Q & A," "Helpful Abbott Provider Budget Formulas," and "Abbott Provider Helpful Budget Worksheets." DOE, Early Childhood Program Aid: Abbott School District: One-Year Operational Plan - School Year 2002-2003, at (One-Year Operational Plan for 2002-03) (last visited on Dec. 31, 2001). Also, on December 17, 2001, the Department proposed amendments to N.J.A.C. 6A:24-3.4 that address, in part, evaluation and assessment of student needs in relation to funding determinations. 33 N.J.R. 4186, 4188. Particularly relevant is the provision stating that "[t]he [local] board[s] shall conduct evaluations and assessments of the needs of their students, programs and community based providers so as to determine in detail their specific requirements and to formulate plans and applications geared to meet these needs." N.J.A.C. 6A:24- 3.4(a)(7).

Active and ongoing regulatory guidance from the DOE is essential throughout this process. District budgetary requests must be developed and articulated with specificity, and, equally important, the DOE must respond with appropriate explanation. Formulaic decision-making neither assists the districts nor provides a basis for further review on appeal. Most important, we were informed at oral argument that the DOE has moved to a zero-based budgeting system. See Advancing Implementation. Thus, the DOE's instructions regarding Provider Budgets state,

Districts should work with providers to ensure that costs are reasonable and appropriate and that sufficient justification for provider costs is incorporated into the district plan. Providers are asked to construct a zero-based budget reflecting the actual cost of delivering an early childhood education program meeting Abbott standards to Abbott children. There is no predetermined per pupil amount, as allocations shall be based on the unique needs of each provider and/or site. [One-Year Operational Plan for 2002-03, Part V: Provider Budget Instructions and Forms: District Instructions.]

Whatever nomenclature is used to describe the budget calculation, it must yield funding decisions based not on arbitrary, predetermined per-student amounts, but, rather, on a record containing funding allocations developed after a thorough assessment of actual needs.

E. Facilities

In Abbott V, we held that the State's "constitutional educational obligation includes the provision of adequate school facilities." 153 N.J. at 519-20. We concluded that a thorough and efficient education in the Abbott districts requires the State to fund one-hundred percent of the costs for renovation of existing structures and construction of new facilities that will adequately accommodate Abbott district students. Id. at 524. We also recognized that temporary facilities would likely be needed in the interim and required the Commissioner to "make use of trailers, rental space, or cooperative enterprises with the private sector" in order to timely meet the State's preschool obligations. Id. at 524. The Chief Judge likewise understood that the most "immediate" issue facing the Abbott districts in respect of school facilities is the provision of temporary facilities to accommodate the maximum enrollment of preschoolers during the period before permanent facilities are completed. OAL Initial Decision at 56. He recognized that disputes regarding temporary facilities are "inextricably tied to the individual needs of specific districts," ibid., and the Commissioner confirmed that all such disputes would be decided on a case-by- case basis. Commissioner Decision at 82.

Plaintiffs generally claim, however, that "the DOE has failed to provide safe and adequate preschool facilities." OAL Initial Decision at 31. The Elizabeth Board of Education (Elizabeth) argued before the Chief Judge that the State's failure to provide funding, or at least to offer assurances that specific funding would later be approved, prevented the district from engaging in meaningful facilities planning for the 2000-01 school year and beyond. Ibid. Further, Elizabeth complained that it has been unable to engage in serious and effective recruiting efforts because it could not ensure that an adequate number of facilities would be available to accommodate all of the students who registered. Ibid. In representations to the Chief Judge and to this Court, Elizabeth stated that, due to a lack of facilities, it had a waiting list of between 250 and 300 three- year-olds; that the DOE had knowledge of the waiting list; and, that nonetheless Elizabeth was not designated to receive any temporary classroom units (modular units or TCUs) for the 2001-02 school year.

The Passaic Board of Education (Passaic), also, claims that its recruitment efforts have been hampered by the lack of either temporary or permanent facilities. Passaic alleges that over the past three years the DOE has either ignored or inadequately addressed the district's facilities needs. The district concedes that the Economic Development Authority ordered approximately fifty TCUs for use in the 2001-02 school year,*fn8 but complains that the order came too late for the district to find and properly evaluate the sites upon which to place the trailers. We were informed at oral argument that certain sites initially selected later proved unusable because they were contaminated. These difficulties are likely to continue, according to Passaic, because of the lengthy lag-time between funding approval and the actual leasing, renovation or construction of preschool facilities. In essence, under the existing process, the district believes it unlikely that needed preschool facilities will be in place by the beginning of the 2002-03 school year.

The Perth Amboy Board of Education (Perth Amboy) alleges similar difficulties. Perth Amboy states that it first sought funding for a new early childhood learning center in May 1999 when it submitted its Long-Range Facilities Plan, but that, as of oral argument, funding had not been provided. The district leased a vacant parochial school building that provides twenty- one temporary classrooms, but even with this leased space, sixty- seven students remained on a waiting list. Perth Amboy anticipated placing those children in five new classrooms located in the Borough of Metuchen.

The DOE does not deny that the number of modular units available through the EDA contract was insufficient, or that several of the Abbott districts were unable to accommodate preschool children who expected to enroll in full-day programs starting September 2001. Nonetheless, the State asserted at oral argument that all Abbott districts, with the exception of Elizabeth, would be in a position to serve all of the children who enrolled in full-day, full-year programs within a few months. Once again, on the record before us, we are unable to determine the full extent of the facilities problem. See Initial Decision at 56 (noting that these issues should be reviewed on a case-by- case basis).

It is foreseeable, however, that districts conducting outreach initiatives will experience increased enrollments in the year following those efforts, and that some of those districts will not have sufficient classrooms for the children who enroll. To accommodate every child whose parents seek placement in an Abbott preschool program, Abbott districts anticipating increased enrollments should have in place a contingency facilities plan that has been reviewed and approved by the DOE. Those districts should identify specific facilities that can be renovated quickly if needed, or should seek DOE authorization for TCUs that can be obtained on short notice and appropriately situated on previously designated sites.

III. The Relief Sought

We observe, finally, that certain of the relief sought in this litigation has been provided by the Commissioner as a result of the administrative process. Yet, delays in decision-making, and even in respect of the relief so granted, have slowed the implementation of Abbott preschool programs. Adherence to the time frames established by the Court will result in timely determinations, as will cooperation and collaboration between the parties.

We are acutely aware of the constitutional imperative that undergirds the Abbott decisions, and of the vulnerability of our children in the face of Legislative and Executive Branch inaction. But we do not run school systems. Under our form of government, that task is left to those with the training and authority to do what needs to be done. Only when no other remedy remains should the courts consider the exercise of day-to-day control over the Abbott reform effort. That said, we must never forget that a "thorough and efficient system of free public schools" is the promise ...

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