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In re 1999-2000 Abbot v. Burke Implementing Regulations

February 22, 2002

IN RE THE MATTER OF THE 1999-2000 ABBOTT V. BURKE IMPLEMENTING REGULATIONS, N.J.A.C. 6:19A-1.1 ET SEQ.


Before Judges Havey, Coburn and Weissbard.

The opinion of the court was delivered by: Havey, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 9, 2001

On appeal from the New Jersey Department of Education.

Appellants, a group of children who attend public schools in special needs districts designated as "Abbott districts," challenge the constitutionality of regulations promulgated by the Department of Education (DOE) pursuant to the Supreme Court's directives in Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V) and Abbott v. Burke, 163 N.J. 95 (2000) (Abbott VI). The challenged regulations were codified at N.J.A.C. 6:19A-1.1 to -8.1 and recodified with amendments as N.J.A.C. 6A:24-1.1 to -9.6, which are scheduled to expire in June 2005. 32 N.J.R. 1329, 1329-41 (April 17, 2000); 32 N.J.R. 2470, 2470-83 (July 3, 2000). Essentially, appellants claim that the regulations failed to codify the Court's mandates in Abbott V and Abbott VI. Prior to its decisions in Abbott V and Abbott VI, the Court had held in Abbott v. Burke, 149 N.J. 145, 152-53 (1997) (Abbott IV), that the Comprehensive Education Improvement and Financing Act of 1996 (CEIFA or the 1996 Act), L. 1996, c. 138, was unconstitutional as applied to school districts that served children in poor districts and that were classified as "special needs districts." The Court ordered the State to provide increased funding to the twenty-eight "Abbott" school districts, and to manage implementation of the additional funding so as to further the students' ability to achieve at the level prescribed by the Core Curriculum Content Standards (CCCS) adopted by the DOE. Id. at 224-25.

The Court in Abbott IV directed the Commissioner of Education (Commissioner) to conduct a comprehensive study of the needs of students in the Abbott districts, specify programs that would address those needs, determine the costs of those programs, and devise a plan for implementation. Ibid. In addition, the Commissioner was ordered to review the facilities needs of the Abbott districts and provide recommendations on addressing those concerns. Id. at 225. The Commissioner was to provide to the Superior Court interim progress reports and a final report. Ibid. The Court appointed Judge King of the Appellate Division, to conduct hearings on the Commissioner's report, and he issued a report and recommendation dated January 22, 1998. Abbott V, supra, 153 N.J. at 493. In Abbott V, the Court relied on Judge King's report to explain the remedial measures it deemed necessary "to ensure that public school children from the poorest urban communities receive the educational entitlements that the Constitution guarantees them." Id. at 489.

The key to the Abbott reform efforts is implementation in elementary schools of a concept known as "whole-school reform." Id. at 494-502. Whole-school reform is a comprehensive approach that integrates reform efforts throughout a school on an institutional level, so as to affect the culture of the entire school, including instruction, curriculum, and assessment. Id. at 494. During the hearings conducted by Judge King, the Commissioner recommended the adoption of a version of whole- school reform known as Success for All - Roots and Wings (SFA). Id. at 494-95. School-based management teams (SMTs), consisting of school administrators, teachers and parents, are an essential component of the SFA model, which relies on the assumption that each of these different groups will "buy into" the program. Id. at 496-97. Another key aspect of whole-school reform is "zero- based budgeting" whereby a school combines all of its revenue sources and uses the entirety of its funds to implement the reform, rather than allocating certain funds to specific programs. Id. at 498.

The Commissioner proposed a version of the SFA that expanded "every element" of the model including, for example, a reduction in the model's recommended class sizes, an increase in the number of tutors per student, and the inclusion of substantial technology components. Id. at 497. In addition to the SFA model, the Commissioner proposed that a school could adopt one of four other models "if it could show convincingly that the alternative model it chose would be equally effective and efficient as SFA or that the model was already in place and operating effectively." Id. at 494.

Accepting evidence of the success of whole-school reform programs that encompassed SFA, the Court stated:

[W]e adopt Judge King's recommendation "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." We direct that implementation proceed according to the schedule proposed by the Commissioner and that SFA contain the essential elements identified by the Commissioner. Finally, we direct the Commissioner to implement as soon as feasible a comprehensive formal evaluation program, modeled on SFA's formal evaluation precedents, to verify that SFA is being implemented successfully and is resulting in the anticipated levels of improvement in the Abbott elementary schools. [Id. at 501-02 (citations omitted).]

The Court rejected appellants' contention that SFA was beyond the DOE's statutory authority and inconsistent with the Court's decision in Abbott IV. Id. at 499. It found that the Commissioner's "broad remedial powers" under the CEIFA provided sufficient authority for the Commissioner's actions. Id. at 499- 501.

In addition to adopting the whole-school reform approach for elementary schools, the Court examined the aspects of whole- school reform relevant to early childhood education programs, recognizing that early childhood education was "essential" for children in Abbott districts and "an integral component of whole- school reform." Id. at 502-08. Specifically, the Court adopted Judge King's recommendation for the implementation of full-day kindergarten "immediately" or, as an alternative for schools unable to obtain promptly sufficient space or instructors, by commencement of the September 1999 school year. Id. at 503. In addition, it directed the Commissioner "to exercise his power" under CEIFA "to require all Abbott districts to provide half-day pre-school for three- and four-year-olds." Id. at 508. The Court permitted the Commissioner to implement the pre-school programs by "authoriz[ing] cooperation with or the use of existing early childhood and day-care programs in the community." Ibid.

Although the Commissioner declined to recommend the adoption of whole-school reform for middle and high schools, he did recommend several supplemental programs that could be implemented at all levels, from elementary to high school. Id. at 508-09. The most significant supplemental programs involved the provision of health and social services, and increased security measures. Id. at 509-14. The Court recognized that the Abbott schools would have varying needs for supplemental programs. Id. at 517. Thus it "authorize[d]" the Commissioner to implement technology programs "at the request of individual schools or districts or as he otherwise shall direct" and "to implement alternative schools or comparable education programs." Ibid. It "direct[ed] the [C]commissioner to authorize accountability programs, as may be deemed necessary or appropriate" and to implement school-to-work and college-transition programs in secondary schools "at the request of individual schools or districts or as the Commissioner otherwise shall require." Ibid. The Court concluded:

In respect of the other supplemental programs, we decline to order their immediate district-wide implementation, even though all such programs are sound in principle. Rather, because the needs for these programs will vary from school to school, we direct the Commissioner to provide or secure the funding necessary to implement those programs for which Abbott schools or districts make a request and are able to demonstrate a need. We reiterate that for middle and secondary schools, which will not have the benefit of whole-school reform, such supplemental programs may be necessary to ensure the educational success of their students. [Ibid.]

The Court also recognized that disputes would arise from the administration of the public education that would be prompted by the reforms, including "the implementation, extension, or modification of existing programs, the need for additional supplemental programs, the allocation of budgeted funds, the need for additional funding, and the implementation of the standards and plans for the provision of capital improvements and related educational facilities." Id. at 526. The Court determined that disputes relating to those matters would be considered "controversies" under the School Laws, N.J.S.A. 18A:7A-1 to 7F- 34, and established the process to be followed to resolve such controversies. Id. at 526-27.

The Court summarized its directions to the Commissioner as follows:

In summary, and consistent with this opinion, we determine and direct that the Commissioner implement whole-school reform; implement full-day kindergarten and a half-day pre-school program for three- and four-year olds as expeditiously as possible; implement the technology, alternative school, accountability, and school-to-work and college-transition programs; prescribe

procedures and standards to enable individual schools to adopt additional or extended supplemental programs and to seek and obtain the funds necessary to implement those programs for which they have demonstrated a particularized need; implement the facilities plan and timetable he proposed; secure funds to cover the complete cost of remediating identified life-cycle and infrastructure deficiencies in Abbott school buildings as well as the cost of providing the space necessary to house Abbott students adequately; and promptly initiate effective managerial responsibility over school construction, including necessary funding measures and fiscal reforms, such as may be achieved through amendment of the Educational Facilities Act. [Id. at 527.]

The Court ordered the Commissioner "to promulgate regulations and guidelines that will codify the education reforms incorporated in the Court's remedial measures." Id. at 526.

By statutes effective June 28, 1999, the Legislature expedited the procedure for the adoption of Abbott regulations for the 1999-2000 school year, and authorized amendments to be made thereafter in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1. N.J.S.A. 18A:7F-35. The statute provided that any regulations adopted pursuant to this procedure would expire June 30, 2000. Ibid. The Legislature also authorized the State Board of Education (Board) to adopt regulations for the 2000-2001 school year to implement the Supreme Court's directive in Abbott V. N.J.S.A. 18A:7F-36.

On September 9, 1999, after public hearings were held, the DOE adopted as N.J.A.C. Chapter 6:19A, rules for "Urban Education Reform in the Abbott Districts," to be effective on September 10, 1999, and to expire on June 30, 2000. 31 N.J.R. 2924, 2924 (Oct. 4, 1999). Generally, the regulations: (1) provided for the establishment of SMTs; (2) mandated the adoption of a DOE- approved program of whole-school reform, or an alternative program design, by all schools in the Abbott districts; (3) established school-based budgeting; (4) implemented required programs in the secondary schools; and (5) provided a format to guide the school districts in their requests for State aid, and a formula for determining a district's facilities' needs. 31 N.J.R. at 2953-64.

On November 16, 1999, appellants filed a notice of appeal challenging the regulations as arbitrary, capricious, and contrary to law.

On March 7, 2000, the Supreme Court decided a motion in aid of litigant's rights filed by appellants to enforce their rights as set forth in Abbott V. Abbott VI, supra, 163 N.J. at 100. Appellants claimed that the Commissioner had "repudiated his promise to provide quality preschool education for the disadvantaged school children who reside in the Abbott districts," and that "systemic failures" required the Court's intervention. Ibid. Although the Court rejected appellants' broader claim of bad faith and noncompliance by the Commissioner, it did conclude that the DOE's use of uncertified teachers in its preschool programs "violates the Abbott V requirement to establish quality preschool programs for three- and four-year old children." Id. at 100-01. The Court also found that "the programs that have been implemented do not conform to the proposals that were accepted by the Court." Id. at 105.

In response to the Court's decision in Abbott VI, the DOE readopted the N.J.A.C. 6:19A regulations with amendments, recodified as N.J.A.C. 6A:24-1.1 to -9.6, scheduled to expire in June 2005 (the "2000-2005 regulations"). 32 N.J.R. at 2470. The amendments implemented rules to ensure the quality preschool education directed by the Court in Abbott VI, and established a full-day kindergarten for five-year-olds. 32 N.J.R. at 1332-36. The amended regulations, effective June 8, 2000, 32 N.J.R. at 2470, are divided into nine subchapters. Subchapter 1, "General Provisions," states the purpose and applicability of the rules, provides definitions, and establishes the assignment of School Review and Improvement Teams (SRI). N.J.A.C. 6A:24-1.1 to -1.6. Subchapter 2, "School Management Teams" (SMT), establishes SMT guidelines. N.J.A.C. 6A:24-2.1 to -2.3. Subchapter 3, "Early Childhood Education," implements a full-day kindergarten program, sets teacher-to-child ratios and class sizes, and establishes teacher credentials. N.J.A.C. 6A:24-3.1 to -3.4. Subchapter 4, "Whole School Reform" (WSR), establishes a time frame for submission by secondary schools of applications for implementation in the 2001-02 school year of WSR or alternative program and procedure for implementation of annual school-based budgets. N.J.A.C. 6A:24-4.1 to -4.5. Subchapter 5, "Supplemental Programs and Services," provides standards to determine whether a school demonstrates a particularized need for supplemental educational programs. N.J.A.C. 6A:24-5.1 and -5.2.

Subchapter 6, "Required Programs in Secondary Schools," requires that SMTs submit annually a revised plan for the implementation of required programs and identifies components of the plan. N.J.A.C. 6A:24-6.1. Subchapter 7, "District Budget and Request for Additional State Aid," sets forth considerations for submission and approval of balanced school-based budgets. N.J.A.C. 6A:24-7.1. Subchapter 8, "Facilities," requires that each district submit a long-range facilities plan, establishes several applicable definitions and standards to be used, and sets forth the Commissioner's treatment of a plan. N.J.A.C. 6A:24- 8.1.*fn1 Subchapter 9, "Appeals," establishes an appeal procedure for an applicant aggrieved by the DOE's decision regarding an application to improve or amend an existing program, or to adopt a supplemental program, implement a required secondary program, build or renovate school facilities, or seek additional aid. N.J.A.C. 6A:24-9.1 to -9.6.

I. STANDARD OF REVIEW

Appellants first contend that we must apply a de novo standard of review to their challenge to the DOE's Abbott regulations because the appeal raises constitutional issues related to the DOE's noncompliance with its constitutionally prescribed duties and statutory requirements, and because the issues involve implementation of the Supreme Court's remedial orders entered in previous Abbott cases to effectuate a constitutional decree.

The Education Clause of the New Jersey Constitution mandates that "[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, ¶ 1. This clause provided the constitutional authority for the Court's mandate that remedial measures be implemented to ensure that the educational entitlements guaranteed by the Constitution were afforded to public school children in the poorest urban districts. Abbott V, supra, 153 N.J. at 489.

Appellants reason that the constitutional issues addressed by the Court compel us to review these regulations de novo, "with the State bearing the burden of demonstrating compliance upon a prima facie showing of unconstitutionality." However, appellants have provided no legal support for that contention. Under well- established judicial principles, administrative regulations are presumed to be valid. New Jersey State League of Muns. v. Dep't of Comm. Affairs, 158 N.J. 211, 222 (1999). In general, the judiciary recognizes that agencies' specialized expertise renders them particularly well-equipped to understand the issues and enact the appropriate regulations pertaining to the technical matters within their area. Ibid. Thus, in general, the judicial role in reviewing regulations is limited to three inquiries:

(1) whether the agency's action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. [In re Petitions For Rulemaking N.J.A.C. 10:82-1.2 and 10:85-4.1, 117 N.J. 311, 325 (1989).]

The party challenging the validity of a regulation bears the burden of establishing that it is arbitrary, capricious, or unreasonable. New Jersey State League of Mun. v. Dep't of Comm. Affairs, supra, 158 N.J. at 222.

Appellants claim that de novo review is required because "the regulatory issues on appeal implicate fundamental constitutional dictates and not matters of regulatory action under a grant of statutory delegation . . . ." However, these regulations were in fact promulgated pursuant to the statutory authority granted by the Legislature. See N.J.S.A. 18A:7F-35 and -36. Although the Legislature acted pursuant to the Court's direction and based on the Court's determination that the existing statute was unconstitutional, the Legislature was the sole authority capable of granting the DOE the power to act. General Assembly of N.J. v. Bryne, 90 N.J. 376, 393 (1982). Thus, essentially we are called upon to decide whether the challenged regulations, adopted pursuant to a legislative grant, conform to the mandates of the Court in Abbott V and Abbott VI. The technical challenges by appellants to specific regulations simply do not raise issues which reach a constitutional level.

Appellants further claim that de novo review is appropriate here because in Abbott VI "the Court did not hesitate to review de novo Appellants' claims of State non-compliance with the mandate" set forth in Abbott V. We do not agree. In Abbott VI, supra, 163 N.J. at 101-04, the Court examined the regulations for specific conflicts with the Commissioner's proposals that the Court had adopted in Abbott V. This comparison was appropriate because the enabling act for the regulations specifically directed the Commissioner to "adopt regulations to implement the order of the Supreme Court of New Jersey in Abbott v. Burke . . . ." N.J.S.A. 18A:7F-36. Only in instances where the Court found direct conflicts between the Commissioner's proposals and the regulations did it order that the regulations be amended to codify the proposals. See Abbott VI, supra, 163 N.J. at 107-17. The Court neither engaged in wholesale de novo review nor acceded to appellants' request that the Court designate a Superior Court judge as a standing master to supervise implementation of the Abbott reforms. Id. at 100, 120.

It is true that in both Abbott V and Abbott VI, the Court became involved in evaluating many details of the reforms proposed by the Commissioner. The Court's analysis was based, however, on a factual record developed by Judge King, and the Court's decision to retain temporary jurisdiction over a complex, far-reaching matter whose solution it had mandated. The Court in fact stated its intention to step away from its role as overseer of the process and allow the legislative and administrative systems to carry out their respective functions. Abbott VI, supra, 163 N.J. at 100, 119-20; Abbott V, supra, 153 N.J. at 490. We therefore reject appellants' argument that the standard of review should be de novo.

II. THE DOE'S FAILURE TO CODIFY STANDARDS AND PROCEDURES

Appellants and amicus advance the general assertion that the regulations fail to codify the remedial measures mandated by Abbott V for WSR implementation. They raise the following specific challenges.

A. Standard-Based Education

Appellants claim that the regulations do not codify the Abbott mandate for standard-based education because they improperly delegate to the developers of the WSR models, the districts and the SMTs, the obligation to conform the WSR models and curriculum to content-and-performance standards set forth in the CCCS, and also fail to codify the standards, procedures and guidelines involved in this task. We reject the argument.

The CCCS "define what all students should know and be able to do by the end of their public school education." N.J.A.C. 6A:8-1.1. The standards are the centerpiece of CEIFA. Abbott IV, supra, 149 N.J. at 161.

The [CCCS] specify expectations in seven academic content areas: the visual and performing arts, comprehensive health and physical education, language arts literacy, mathematics, science, social studies, and world languages. The [CCCS] also include the following five Cross-Content Workplace Readiness Standards: career planning; use of technology, information, and other tools; critical thinking, decision making, and problem solving; self-management; and application of safety principles. [N.J.A.C. 6A:8-1.1.]

In Abbott IV, supra, 149 N.J. at 161-62, the Court recognized that "[t]he standards are not a curriculum; rather, they define the results expected without prescribing specific strategies or educational methodologies to ensure that students actually meet those expectations. The development of a curriculum to deliver the educational achievement levels required by the standards is left to the local districts."

In Abbott V, supra, 153 N.J. at 498, the Court considered appellants' complaint that the SFA would not provide the constitutionally guaranteed thorough and efficient education to which they were entitled because the plan was not tied to the CCCS. The Court accepted evidence that the SFA could be adapted to fit standards of success established by various states and thus could incorporate the CCCS. Ibid. Appellants now claim that the regulations ignore "the State's constitutional duty" to conform the SFA and the four alternative WSR models to the New Jersey CCCS because they improperly, arbitrarily, and capriciously delegate to the districts and the SMTs the task of ensuring that the WSR model adopted by a particular school conforms to the CCCS.

In fact, both the regulations and the statutory scheme provide that the Commissioner retains ultimate responsibility for ensuring that the selected programs conform to the standards. First, to gain approval for a particular WSR model, the developer "must align all instructional materials and all instructional processes in the model with the [CCCS]." N.J.A.C. 6A:24-4.1(a). Second, the WSR implementation plan submitted by the SMTs must "[e]nsure that the curriculum is aligned with the [CCCS] . . . ." N.J.A.C. 6A:24-4.3(a)5. In addition, the Chief School Administrator for each district must ensure that each model adopted in the district is aligned with the standards. N.J.A.C. 6A:24-1.4(o). Rather than the improperly delegating authority, the regulations provide that each level of administration involved in the process, from designer to parents to superintendent, is responsible for properly performing the critical function necessary at that level that will ensure that the programs conform with the standards. Appellants offer no basis for rejecting the Commissioner's conclusion that the professionals who developed the particular WSR model are also the group best suited to adapt it to incorporate the CCCS.

Similarly, appellants complain that the regulations fail to explain the meaning of "key terms" such as "alignment, articulation, continuity, collaboration, instructional materials, instructional processes, and instructional delivery systems." However, we have no reason to believe that those in the educational field require definitions for such terms. Regulations are subject to the same rules of construction as a statute and should be construed according to the plain meaning of the language. Medford Convalescent and Nurs. Ctr. v. Div. of Med. Assist. and Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985). Appellants offer no examples of confusion, double- meaning, or misunderstandings likely to occur if the terms remain undefined and subject to their common meaning.

Appellants also argue that the regulations fail to provide standards and procedures for CCCS-related tasks and time frames for completing the tasks. They claim further that the regulations fail to provide models from schools that have successfully conformed their curriculum; and fail to codify the requirements for the professional programs that the DOE directs staff to utilize in implementing WSR. Appellants provide no basis, however, for their assertion that explicit codification of these models and standards is either specifically mandated by Abbott or necessary for the accomplishment of Abbott objectives. Similarly, they offer no reasons to assume that the model developers, SMTs, and others involved in the process are incapable of accomplishing their assigned obligations without the specific direction demanded by appellants. Moreover, despite their criticisms, appellants offer no specific standards, definitions, or procedures to supplement or remedy the gaps that they claim exist.

B. Whole-School Reform Programs

Appellants allege that the 1999-2000 regulations failed to codify the standards, procedures, and guidelines for the minimum elements of the Abbott WSR program for elementary schools including the requirements for: an integrated pre-school education; the SFA early literacy program; a full-time instructional facilitator in every school; a professional development program; a family support team to address student social and health needs; an enhanced technology program; a needs- based security program; and a class-size reduction program. In their supplemental brief, appellants acknowledge that the DOE "made a few amendments to the regulations" pertaining to WSR in elementary schools, but they allege that "none of [the amendments] correct the failure to codify that remedial measure." In addition to their claims alleging insufficiency in the codification of programs for elementary schools, in their primary brief appellants claim that the regulations fail to codify minimum requirements for supplemental programs in middle and high schools including coordination and referral for social and health services, an enhanced technology program, a needs-based security program, an alternative education program, a drop-out prevention program, and school-to-work and college transition programs. In their supplemental brief, appellants make no claims regarding the 2000-2005 regulations. The regulations pertaining to elementary and secondary schools are discussed separately.

(a) Elementary Schools

Appellants first contend that the DOE "completely ignores the explicit directive in Abbott V that WSR incorporate the requirements for preschool education." This assertion ignores the framework for early childhood education set forth in the amended regulations, Subchapter 3, N.J.A.C. 6A:24-3.1 to -3.4. The only reference to Abbott V cited by appellants in support of this argument is the Court's discussion of the precise elements later incorporated into Subchapter 3, including full-day kindergarten and preschool for three- and four-year olds. See Abbott V, supra, 153 N.J. at 502-08.*fn2

Appellants also argue that the regulations fail to codify specific program requirements for the literacy component of SFA. In evaluating the Commissioner's proposal for implementation of WSR and his recommended version, SFA, the Court described the functional elements of the SFA reading program as involving daily ninety-minute reading sessions, with the students placed in groups of fifteen organized according to reading level. Id. at 495. In addition, under the SFA program daily individual tutoring should be available for the younger children in grades one through three, and daily group tutoring sessions for the students in the higher elementary grades. Ibid. Nowhere, however, in its opinion did the Court mandate the adoption by every school of the SFA model or the codification of the SFA components. To the contrary, the Court "adopt[ed] Judge King's recommendation '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.'" Id. at 501. It directed only that the SFA "contain the essential elements identified by the Commissioner." Ibid. This mandate was consistent with the Court's recognition that a key element of the success of WSR is the involvement of school personnel and parents, and its recognition that individual schools had different needs that were best understood by those involved in the daily life of the school.

In accordance with the Court's instruction, the regulations do not require that a school adopt a particular WSR model. The selected model must be, however, a research-based model or an alternative design, which must comport with certain requirements set forth in the regulations. N.J.A.C. 6A:24-4.1 to -4.2. Moreover, the regulations specifically define SFA-Roots and Wings as the "nationally-proven [sic] research-based whole school reform model developed by Dr. Robert Slavin . . . [that] shall include the enhancements made by Dr. Slavin to the model so as to meet New Jersey requirements." N.J.A.C. 6A:24-1.2. Appellants offer no evidence that the lack of codification of specific elements of the SFA literacy program conflicts with the Commissioner's proposals or undermines existing standards.

Appellants further argue that "[t]here is no codification of the minimum elements of the minimum professional development program adopted in Abbott V . . . . " In Abbott V, supra, 153 N.J. at 496, the Court described details of the Commissioner's recommended program of professional development for members of the SFA instructional teams, which included at least three full days of training prior to the school year, a week-long training session for the principal and school facilitator, weekly in-school training sessions, and three two-day evaluations by SFA staff. The regulations provide only that: "All staff of the school shall be engaged in an organized, continuous program of staff training, focused on the acquisition of knowledge and skills directly related to the achievement of the Core Curriculum Content Standards and the implementation of the selected WSR model." N.J.A.C. 6A:24-4.1(i)6. Although this regulation does not codify the specific program elements described by the Court, neither does it conflict with or prevent the DOE from implementing the form of professional development program described in the recommendations.

Appellants further claim that despite the Court's "unequivocal instruction on the maximum number of students per class," the DOE failed to direct the implementation of reduced class sizes, to provide guidance on methods to reduce class size, or to set forth "how to secure any additional funds" necessary to achieve this requirement. In Abbott V, supra, 153 N.J. at 498- 99, the Court observed that the Commissioner proposed a reduction of class sizes to twenty-one students for kindergarten through third grade, and twenty-three students for fourth and fifth grade, with reading classes of fifteen students for grades K-5. It rejected appellants' argument that class sizes for all subjects should be reduced to fifteen students, and concurred in "Judge King's recommendation that it will not be essential to reduce class size in the elementary schools to an extent greater than that proposed by the Commissioner." Ibid.

The regulations provide that, for schools implementing a WSR model: "A plan shall be in place to continue to reduce class size by September 2002 to 1:21 for grades K through 3 and 1:23 for grades four through eight and 1:24 for grades nine through 12. The plan shall also include an aide in kindergarten." N.J.A.C. 6A:24-4.1(j)9. For schools implementing an alternative design model: "The design shall reduce class size in grades K through 3 to 21 children and in grades four through eight to 23 children and in grades nine through 12 to 24 children or demonstrate a program of smaller class sizes geared to more effective learning, including reading class size reduction[.]" N.J.A.C. 6A:24- 4.2(c)5. Thus, the regulations clearly implement the Court's directive regarding class size in the elementary schools.

Appellants attack the regulations for failing to provide guidance on "methods" to achieve the reduction, for delaying the requirement until 2002, and for ignoring the requirement to reduce reading class sizes to fifteen students. Appellants offer no examples of any "methods" that exist, beyond the obvious method of lowering the ratio of students to teachers, that would have the effect of reducing class size, or which were cited by the Court in Abbott V. They do not explain why implementing this goal would require separate procedures for obtaining funds distinct from those procedures established in the overall Abbott statutory and regulatory scheme. As to the class size for reading groups, the fifteen-student class size pertains to schools who have adopted the SFA program for reading. Other programs may approach the issue of reading in an entirely different manner, for example, by utilizing computers or audiotapes in which class size is less relevant. Neither the Court nor the regulations mandate the imposition of SFA as the exclusive reading program, and there is no basis for imposing a class-size requirement that may be antithetical to the methods of a particular, accepted alternative reading program.

In their initial brief, appellants allege that the regulations pertaining to enhanced technology programs: (1) fail to provide definitions for terms that it deems "critical," such as "educational technology, equipment and infrastructure, and appropriate staff"; (2) fail to specify computer ratios or minimum staff levels; fail to direct schools to provide a full- time technology coordinator; and (3) "do[] not codify at all the requirement for an additional full-time media specialist in every school."

In Abbott V, supra, 153 N.J. at 514-15, the Court discussed the Commissioner's proposal for a technology program that would provide one computer for every five students in grades K-12, a full-time media/technology specialist, and a full-time technology coordinator. The Court discussed the program, however, within the context of the "supplemental programs" for which it recognized that the Abbott schools would have varying needs. Id. at 514-517. Consequently, rather than ordering the as-is adoption of the proposals, the Court "authorize[d] [the Commissioner] to implement technology programs at the request of individual schools or districts or as he otherwise shall direct." Id. at 517.

N.J.A.C. 6A:24-1.4(f) requires that the local board "shall provide for a full-time media specialist responsible for ensuring that school libraries have appropriate materials to supplement the curriculum and to address the [CCCS]," although it does not state whether the specialist would be district-wide or at each school. N.J.A.C. 6A:24:1.4(g) ...


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