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Abbott v. Burke

May 28, 2009

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



SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court reviews the School Funding Reform Act of 2008 (SFRA), N.J.S.A. 18A:7F-43 to -63, to determine whether its funding scheme satisfies the thorough and efficient education clause of the New Jersey Constitution and whether the State may be released from the Court's prior remedial orders concerning funding for students in Abbott districts, including the requirement that Abbott districts be provided parity aid and supplemental funding.

Nearly twenty years ago, the Court determined in Abbott v. Burke, 119 N.J. 287 (1990) (Abbott II), that the State's system of support for public education was inadequate as applied to pupils in poorer urban districts and that more severely disadvantaged pupils require more resources for their education. The Court held that the State must develop a funding formula that would provide all children with equal educational opportunity as measured by the state constitution's through and efficient education clause. In 1994, the Court added that the funding needed to be coupled to a set of educational programs. Abbott v. Burke, 136 N.J. 444 (1994) (Abbott III). Thereafter, the State enacted the Comprehensive Educational Improvement and Financing Act (CEIFA), with comprehensive core curriculum standards (CCCS) and an accompanying funding formula. The Court approved the curriculum standards in 1997, Abbott v. Burke, 149 N.J. 145 (Abbott IV), but not the funding formula insofar as it applied to pupils in the Abbott districts. To fill the void, the Court ordered the parity remedy, which focused on the state's most affluent school districts because they provided an objective and reasonable indicator of resources needed to achieve the CCCS. The parity remedy was an interim remedy and was not meant to foreclose the development of an adequate alternative funding scheme that would provide a thorough and efficient education through expenditures lower than parity. In the years since, the State has abided by the Court-ordered parity remedy enhanced by supplemental funding to the Abbott districts. Now, however, the State maintains that it has heeded the Court's call to create a funding formula based on curriculum content standards and to demonstrate that the formula addresses the needs of disadvantaged students everywhere.

After the Legislature passed and the Governor signed into law SFRA, the State sought a declaration from the Court that 1) the statute's funding provisions satisfy the thorough and efficient education clause of the New Jersey Constitution, and 2) the State is released from the Court's prior remedial orders concerning funding in the Abbott districts. Specifically, the State asked for elimination of the requirements that Abbott districts be provided parity aid and supplemental funding. The Court remanded the matter to a special master for the development of a record and placed the burden of proof on the State. 196 N.J. 544 (2008) (Abbott XIX). The issue on remand was whether the State had devised a funding formula that provided sufficient support for the delivery of a thorough and efficient education as defined by the CCCS, even when applied in the context of the peculiar difficulties faced by districts with concentrated levels of at-risk pupils.

The Special Master recommended that SFRA be found constitutional. He recommended further that supplemental funding continue to Abbott districts during and until a three-year look-back review of SFRA because he could not predict its immediate and practical effect on the educational services provided in Abbott districts.

HELD: To the extent that the record permitted its review, SFRA is constitutional and may be applied in Abbott districts subject to the State continuing to provide school funding aid during this and the next two years at the levels required by SFRA's formula each year, and subject further to the mandated review and retooling of the formula's weights and other operative parts after three years of implementation.

1. For several decades, the Court has superintended the ongoing litigation that carries the name Abbott v. Burke. The Court's one goal has been to ensure that the constitutional guarantee of a thorough and efficient system of public education becomes a reality for those students who live in municipalities where there are concentrations of poverty and crime. Every child should have the opportunity for an unhindered start in life -- to become a productive and contributing citizen to our society.

2. The legislative and executive branches of government have enacted a funding formula designed to achieve a thorough and efficient system of public education for every child, regardless of where he or she lives. The political branches are entitled to take reasoned steps to address the pressing social, economic, and educational challenges confronting the state, without being locked in a constitutional straightjacket. A costing-out study such as that engaged in by the State is rife with policy choices that are legitimately in the legislature's domain. In the record below, each value judgment attacked was demonstrated to have been made in good faith, and on the basis of available factual data informed by advice from experts whose testimony revealed that they had the interests of the pupils in mind. The Court sees no reason or basis for it to second-guess the extraordinarily complex education funding determinations that went into the formulation of the many moving parts to this funding formula. The Court recognizes, however, that it does not have the ability to see ahead and to know with certainty that SFRA will work as well as it is designed to work. Although there is no absolute guarantee that SFRA will achieve the intended results of its design, the Court concludes that SFRA deserves the chance to demonstrate in practice that, as designed, it satisfies the requirements of the State Constitution.

3. On the basis of the record developed in the proceedings below, the Court holds that SFRA is a constitutionally adequate school funding scheme and that it may be implemented in the Abbott districts. Furthermore, the Court recognizes that SFRA is meant to be a state-wide unitary funding system. Because continuation of supplemental funding may undermine or distort the effectiveness of SFRA, and because the Abbott districts will be the recipients of a considerable amount of federal and other non-SFRA funds during the period of time until the look-back review occurs, the Court declines to order the continuation of supplemental funding until SFRA's review occurs.

The State's motion seeking declarations that SFRA satisfies the requirements of the thorough and efficient education clause of Article VIII, section 4, paragraph 1 of the New Jersey Constitution and that the funding formula may be implemented in the Abbott districts, and further seeking an order relieving the State from the Court's prior remedial orders concerning funding to the Abbott districts, is GRANTED. Plaintiffs' cross-motion seeking an order preserving and continuing the status quo concerning enforcement of the Court's prior remedial orders addressing funding to Abbott districts is DENIED.

JUSTICES ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE RABNER and JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 22, 2008

Remanded November 18, 2008

Master's Report filed - March 26, 2009

Re-argued April 28, 2009

On motion for review of the Constitutionality of the School Funding Reform Act of 2008 and Cross-Motion for an Interim Order Preserving the Status Quo and Clarifying Procedural Protections.

One of the fundamental responsibilities of the State is to provide a public education for its children. The New Jersey Constitution requires 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.]

That the education of youth is essential to the workings of democracy and the future well-being of society is widely appreciated. As Chief Justice Earl Warren pronounced in the historic decision, Brown v. Board of Education, [t]oday, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. [347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873, 880 (1954).]

That was 1954. Today we are almost a decade into the twenty-first century, and nearly twenty years have passed since this Court found that the State's system of support for public education was inadequate as applied to pupils in poorer urban districts. Abbott v. Burke, 119 N.J. 287, 295 (1990) (Abbott II). Finding that more severely disadvantaged pupils require more resources for their education, the Court held that the State must develop a funding formula that would provide all children, including disadvantaged children in poorer urban districts, with an equal educational opportunity as measured by the Constitution's thorough and efficient clause. Id. at 374, 384-86. A later decision added that the funding needed to be coupled to a set of educational program standards. Abbott v. Burke, 136 N.J. 444 (1994) (Abbott III).

Today's decision marks the twentieth opinion or order issued in the course of the Abbott litigation. In the interim, much has changed. There have been significant demographic changes among school districts in terms of the distribution of at-risk pupils and changes in the level of State-provided education funding. The State now maintains that it has heeded our call to create a funding formula based on curriculum content standards and to demonstrate that the formula addresses the needs of disadvantaged students everywhere, thereby achieving constitutional compliance. Therefore, once again we assess the constitutionality of a State school funding system.

I.

This matter is before us on the State's Motion for Review of the Constitutionality of the School Funding Reform Act of 2008 (SFRA), L. 2007 c. 260 (N.J.S.A. 18A:7F-43 to -63). The State's motion seeks a declaration that SFRA's funding formula satisfies the requirements of the thorough and efficient education clause of the New Jersey Constitution and that, therefore, the State is released from the Court's prior remedial orders concerning education funding for students in Abbott districts. Specifically, the State asks for elimination of the requirements that Abbott districts be provided parity aid and supplemental funding.

The State's motion was opposed by plaintiffs with the support of various amici curiae. Plaintiffs filed a cross-motion seeking to maintain the status quo. We found that the dispute over the formula's constitutionality was not conducive to resolution on a summary record and, therefore, we remanded the matter to a special master for development of an evidential record. Abbott v. Burke, 196 N.J. 544, 565 (2008) (Abbott XIX). The remand allowed for the presentation of State witnesses to explain what went into the creation of this formula and how it would work. In the proceedings before the Special Master, the State's fact and expert witnesses were challenged through cross-examination and through witnesses presented by plaintiffs. The Special Master's Report provided this Court with a summary of his fact-finding, accompanied by reasons for crediting or discounting the testimony of the witnesses. See Appendix at 1-84 (slip op. at 51-134). The Report has proven invaluable.*fn1

We have reviewed the record, the Special Master's findings and recommendations, and the arguments of the parties.*fn2 We conclude that SFRA is constitutional, to the extent that this record permitted its review. We therefore hold that SFRA's funding formula may be applied in Abbott districts, with the following caveats. Our finding of constitutionality is premised on the expectation that the State will continue to provide school funding aid during this and the next two years at the levels required by SFRA's formula each year. Our holding further depends on the mandated review of the formula's weights and other operative parts after three years of implementation. See N.J.S.A. 18A:7F-46(a), (b), -51(a), -55(f), -57(a), -59.

Our approval of SFRA under the State Constitution relies, as it must, on the information currently available. But a state funding formula's constitutionality is not an occurrence at a moment in time; it is a continuing obligation. Today's holding issues in the good faith anticipation of a continued commitment by the Legislature and Executive to address whatever adjustments are necessary to keep SFRA operating at its optimal level. The three year look-back, and the State's adjustments based on that review, will provide more information about the efficacy of this funding formula. There should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge.

With that understanding, SFRA may be implemented as it was designed, as a state-wide unitary system of education funding. The State shall not be required to continue separate funding streams mandated under past remedial orders. During the two-year period until the look-back review occurs, we cannot ignore, as a practical matter, the substantial amount of additional funds that will be available from non-SFRA sources for pupils in Abbott districts. The availability of those funds further cushions the transition to SFRA's funding scheme. In sum, although no prediction is without some uncertainty, the record before us convincingly demonstrates that SFRA is designed to provide school districts in this state, including the Abbott school districts, with adequate resources to provide the necessary educational programs consistent with state standards.

II.

Enacted by the Legislature and signed into law by the Governor in January 2008, SFRA is the product of the State's most recent, lengthy and painstaking effort to craft a redesigned school funding formula that satisfies the constitutional standard. SFRA's place in history dictates the nature of our review of its constitutionality.

Had this statute been enacted earlier in the history of school funding litigation, when the State first was required to devise a new formula to provide sufficient state support to assure that all school districts could meet the constitutional obligation,*fn3 we would be approaching our task by attaching the familiar presumption of constitutionality. See N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8 (stating that "every possible presumption favors the validity of an act of the Legislature"), appeal dismissed sub nom, Borough of E. Rutherford v. N.J. Sports & Exposition Auth., 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed. 2d 215 (1972); see also In re P.L. 2001, 186 N.J. 368, 392 (2006) (stating that "we will not declare void legislation unless its repugnancy to the Constitution is clear beyond a reasonable doubt" (internal citations omitted)). The presumption attaching to typical legislative enactments affects the application of burdens of proof and the weighing of the evidence. See Bd. of Educ. of Piscataway Twp. v. Caffiero, 86 N.J. 308, 318 (attaching presumption of validity to legislation requires party challenging legislation to carry burden of proving its unconstitutionality), appeal dismissed, 454 U.S. 1025, 102 S.Ct. 560, 70 L.Ed. 2d 470 (1981); see also Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 285 (1998) (noting similarly that party may overcome presumption and carry burden by demonstrating constitutional repugnancy beyond reasonable doubt).

The State enacted SFRA, however, after decades of school funding litigation that have led to the issuance of numerous remedial orders to enforce the constitutional rights of the pupils in the Abbott districts. The constitutional review, therefore, cannot begin with the familiar presumption. If the State is to replace adherence to those prior remedial orders with the application of SFRA's new funding formula for children in Abbott districts, it must demonstrate that the concerns that compelled the Court to resort to judicially crafted remedies have been overcome. See Abbott XIX, supra, 196 N.J. at 566.

We recounted the relevant history of the Abbott litigation for the purposes of addressing the instant application. Id. at 548-49, 560-63. We therefore draw from that summary the points that remain salient. In Abbott XIX, supra, we noted that early in the Abbott litigation, plaintiffs carried their burden to overcome the presumption of validity that is accorded to legislative enactments, and successfully demonstrated the unconstitutionality of public school funding under Chapter 212 as applied to them. See Abbott v. Burke, 119 N.J. 287 (1990) (Abbott II). The State was ordered to provide plaintiffs attending special needs districts (later designated as "Abbott districts") with a constitutionally compliant education, id. at 374, supported by funding in accordance with standards established to guide the State's achievement of a constitutional system of education, id. at 384-86. [196 N.J. at 548-49.]

Abbott II required the creation of a formula that would provide certainty in funding for the special needs districts. Abbott XIX, supra, 196 N.J. at 560. Despite ordering that relief, Abbott II recognized that "'funding alone will not achieve the constitutional mandate' for pupils in districts having high concentrations of poor children." Abbott XIX, supra, 196 N.J. at 560 (citing Abbott II, supra, 119 N.J. at 295). Funding coupled with a set of standards to measure the required level of education to be delivered also was deemed essential to a constitutional solution. See Abbott III, supra, 136 N.J. at 451-52.

Eventually, the State enacted the Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA), with its set of comprehensive core curriculum standards (CCCS) and accompanying funding formula. Abbott XIX, supra, 196 N.J. at 561. Although this Court approved the curriculum standards in Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV), CEIFA's fiscal standards were found lacking and were held to be insufficient for constitutional purposes as applied to pupils in the Abbott districts. Abbott XIX, supra, 196 N.J. at 562. The State's inability to devise a funding formula that measured the cost of delivering educational content standards in districts having concentrated populations of disadvantaged pupils with multiple learning challenges forced the Court to devise a judicial remedy to fill the void. As Abbott XIX, supra, explained: the Court was unable to approve the fiscal standards adopted in CEIFA to support the CCCS because the standards were based on costs in a hypothetical school district that supposedly served as a model for all school districts. [Abbott IV, supra, 149 N.J. at 163.] The Court noted that the "model" did not account for the characteristics of special needs districts. Id. at 172. Furthermore, the Court also found that those special needs were not adequately provided for through CEIFA's categorical aid for supplemental programs -- demonstrable effective program aid (DEPA) -- because DEPA funding also was not calculated based on a study of the special needs of the high concentrations of poor students attending Abbott districts. Id. at 185. Thus, the Court was forced to conclude that the State had not demonstrated an adequate basis for using the per-pupil funding amounts for supplemental programs. Ibid. [196 N.J. at 562.]

Accordingly, "[f]aced with no viable alternative legislative or administrative solution to the funding dilemma, the Court ordered the parity remedy." Ibid. The parity remedy focused on the state's most affluent school districts, classified as I and J districts for regulatory purposes, because the Court found that such districts provided "an objective and reasonable indicator of resources needed to achieve the CCCS." Ibid. Abbott XIX, supra, noted that the parity remedy was recognized, even at the time, as an "interim" remedy, albeit the Court's "chosen interim remedy." [Abbott IV, supra, 149 N.J. at 190.] The door was left open, however, for an alternative funding approach. The Court allowed that the Legislative and Executive Branches could devise an adequate alternative funding remedy so long as the State could show, convincingly, that a thorough and efficient education can be met through expenditures lower than parity, or if the State showed that the I and J districts' spending contained inefficiencies. Id. at 196. [196 N.J. at 562-63.]

Thereafter, in Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V), the Court further "settled details about the supplemental programs that would be required for pupils in special needs districts," Abbott XIX, supra, 196 N.J. at 563, and in the years since, the State has "abided by the Court-ordered parity remedy enhanced by supplemental funding to the Abbott districts."

Ibid.

We summarized the history and context of the present litigation in the following manner:

The State's efforts to comply with its constitutional obligation have spanned decades. Plaintiffs have had to bring numerous challenges to ensure that the State satisfied its constitutional obligation.

They have worked long and hard to obtain a constitutionally sound, mandated educational program that is supported by a consistent level of State funding. And, their success has enabled children in Abbott districts to show measurable educational improvement.

That background brings the present application into sharp relief. [Id. at 549.]

We determined that the State's request to have its new funding formula declared constitutional on the basis of an undeveloped record, supported only by affidavits, would not suffice for purposes of SFRA's replacement of the remedial orders governing education funding in Abbott districts. Id. at 565. We remanded for the development of a record and placed the burden of proof on the State. Id. at 565-66. Because the CCCS already were found to be constitutional, see Abbott IV, supra, 149 N.J. at 168, the issue on remand was whether the State had devised a funding formula that provided sufficient support for the delivery of a thorough and efficient education as defined by the CCCS, even when applied in the context of the peculiar difficulties faced by districts with concentrated levels of at-risk pupils, Abbott XIX, supra, 196 N.J. at 566. Only by meeting those concerns could SFRA replace the remedial orders governing the provision of education funding to Abbott districts. Ibid. We made clear in Abbott XIX, however, that

[b]y that . . . we do not mean that the formula must produce the equivalent in an exact dollar amount to that which parity/supplemental-program funding would have provided to be constitutional.

[Id. at 564.]

Plainly, however, we were particularly interested in having the new formula examined to understand how it supports accommodation of the special needs of disadvantaged students. Id. at 566. We further held that, until the Court approves a new funding program for Abbott districts, the prior remedial orders would remain in effect.*fn4 Ibid. With those stipulations, we remanded for expedited proceedings before an appointed special master. Id. at 567. This opinion picks up where the holding in Abbott XIX left off, focusing on SFRA, as dissected in the proceedings conducted before the Special Master.

III.

SFRA allocates state resources to school districts, while also requiring certain levels of funding at the local level. The State's implementation of the Professional Judgment Panel (PJP) process, which led to the creation of the formula enacted by the Legislature, was discussed generally in this Court's earlier opinion, see Abbott XIX, supra, 196 N.J. at 552-55, and in the Special Master's Report, see App. at 16-38 (slip op. at 66-88). Summarized below are the Special Master's findings, and relevant recommendations about how the formula works. Thereafter we consider plaintiffs' chief criticisms about SFRA's development and its deficiencies as applied to Abbott districts.

A.

The Report describes SFRA succinctly as a weighted school funding formula. SFRA identifies a base cost associated with the education of an elementary pupil without any particular special needs. Once identified, the per-pupil amount is increased to reflect characteristics that are widely accepted as increasing the cost of education. Those characteristics are: 1) grade level, and whether the pupil is 2) an at-risk pupil (defined as one eligible for a free- or reduced-price lunch), 3) a Limited English Proficiency (LEP) pupil, or 4) a special education student of mild, moderate, or severe classification.

The State used the PJP process initially to assess the resources necessary for the base educational programs needed by an elementary student. It then costed out those resources using New Jersey data. The calculation of the additional weights also was produced through the PJP process. That process involved the use of multiple panels of educators from across the state and experts.*fn5

The process led to a formula in which the State's contribution to funding operates in several ways.

The Adequacy Budget. At the core of the formula is the Adequacy Budget. The Adequacy Budget is wealth equalized, which means that it is based on the community's wealth and ability to provide funding through local resources.*fn6

As described in the Special Master's Report,

[t]he Adequacy Budget is composed of four categories of aid: 1) a base aid amount for elementary, middle, and high school students, 2) additional weights for at-risk and LEP students, and vocational districts, 3) two-thirds of the census based costs for special education, and 4) all census-based costs for speech-only special education.

[App. at 41 (slip op. at 91).]

The per-pupil amount is intended to represent the cost of educating an elementary school student, that is, of providing that student with the CCCS and extracurricular and co-curricular activities necessary for a thorough and efficient education.*fn7

Under SFRA, the base per-pupil amount for 2008-09 is $9,649, which will be adjusted by the Consumer Price Index (CPI) each year over the next two years. Once the base per-pupil amount is determined, it is adjusted upward using specific weights.

[T]he grade level weights are applied to account for the additional resources needed to educate higher grade levels. The weight for half day kindergarten students is 0.5, full day kindergarten students is 1.0, elementary students (grades 1-5) is 1.0, middle school students (grades 6-8) is 1.04, and for high school students (grades 9-12) is 1.17.

The cost per pupil for each grade level is determined by multiplying the base per pupil amount by the grade level weight. As such, the base cost for a district reflects the total amount of elementary students multiplied by $9,649, the total amount of middle school children multiplied by $10,035 (the base per-pupil with the middle school weight applied), and the total amount of high school students multiplied by $11,289. [App. at 42 (slip op. at 92) (internal citations omitted).]

The formula includes additional weights for students with the special needs identified earlier. For each at-risk pupil, a base at-risk weight of .47 is applied.*fn8 Also, as described by the Special Master, the [State Department of Education (DOE)] employed a sliding scale to recognize the additional challenges faced by districts with high concentrations of at-risk students. The sliding scale applies a base at-risk weight of .47 to the base student cost for at-risk pupils in districts with an at-risk student population between zero and 20%. The weight then increases incrementally. The scale levels off at 60% -- applying a weight of .57 to at-risk pupils in districts with an at-risk population over 60%. Although the at-risk weight levels off, the districts will still receive the additional funding for each at-risk student; therefore, the formula does provide more funding to districts with higher concentrations of at-risk students. [App. at 44 (slip op. at 94) (internal citations omitted).]

The formula applies weights also to LEP students (although the PJP panel suggested .47, SFRA applies a weight of .50) and yet another weight for students who are both at-risk and LEP to support non-duplicative resources required by such students (although calculated during the PJP process to be 22.6% of the LEP weight, SFRA uses 25%).

The Adequacy Budget covers two-thirds of special education costs and all costs for speech-only special education. The remaining one-third is provided to districts through categorical aid. The census-based approach used to fund the remaining one-third of special education costs is addressed later in this opinion. See infra at (slip op at 36-37).

Finally, once the base funding is determined for a district, there is an adjustment for geographic cost. See App. at 50-51 (slip op. at 100-01). The total calculation is referred to as the district's Adequacy Budget.*fn9

In addition to the Adequacy Budget, SFRA's formula includes Equalization Aid, Categorical Aid, Adjustment Aid, and Education Adequacy Aid.

Equalization Aid. Equalization Aid is State-provided aid to support the Adequacy Budget by funding the difference between a district's Local Fair Share (LFS) and its Adequacy Budget. A district's LFS is the amount it is required to contribute in support of the Adequacy Budget. That amount is determined by adding a district's equalized property wealth and its equalized income wealth. Under SFRA, a district must provide the lesser of either its LFS, as calculated using SFRA's formula, or the local share it raised in the previous year. In short, Equalization Aid is the difference between a district's LFS and its Adequacy Budget.

Categorical Aid. Categorical Aid is a separate funding stream provided on a per-pupil basis for certain expenses. Categorical Aid covers: (1) one-third of census-based costs for special education; (2) security; (3) preschool aid; (4) extraordinary aid for special education; and (5) various additional aid categories. As explained by the State Commissioner of Education (Commissioner) during the hearing, Categorical Aid is "provided to . . . every district at the same amount of resources." Thus, one-third of special education is funded on the basis of Categorical Aid, "regardless of the community's wealth," while the other two-thirds of the special education funding is wealth equalized. In this way, poorer communities receive more wealth-equalized resources, but every community receives the same resources for the one-third of special education funding that is provided through Categorical Aid.

Security is provided for every student in the amount of $70. Additional aid is provided for at-risk pupils using a sliding scale, which increases the amount of per-pupil aid as the district's percentage of at-risk students increases. That scale levels off at a forty percent at-risk pupil population, thereby providing $406 per pupil in additional security aid to districts having forty percent or more at-risk students in the pupil population. Security is funded entirely through Categorical Aid.

The formula also provides for transportation aid, choice aid, and debt service on the basis of per-pupil categorical aid factors.

Preschool Aid. SFRA requires that every school district offer a high quality preschool program to all at-risk three- and four-year-olds in its district. The per-pupil cost of such programs was calculated based on actual cost data from the high-quality Abbott preschool program, rather than through the results of the PJP process. There are three types of preschool programs, each of which receives a different amount of state funding. Under SFRA, Preschool Aid is calculated by multiplying the number of children projected to be in each program by the respective program costs per child, and then totaling all costs together.

Extraordinary Aid. Extraordinary Aid provides funding for special education expenses over a certain threshold. It is allocated as a reimbursement for the education of students "whose costs are extraordinary," meaning above either $40,000 or $55,000. The State reimburses ninety percent of the costs over $40,000 for providing direct instructional and support services for such students, and the districts pay the balance. For private out-of-district programs, the State reimburses the districts seventy-five percent of the costs exceeding $55,000.

Adjustment Aid. Adjustment Aid is provided as transition assistance to SFRA's funding methodology. It is designed to enable districts that are spending above their Adequacy Budget to maintain their existing level of spending without significant tax levy increases. Adjustment Aid is provided if the sum of a district's Equalization Aid, Categorical Aid, Extraordinary Aid, and Transportation Aid is less than the district's 2007-2008 spending, plus two percent. If a district's current-year aid is less than that amount, the district receives Adjustment Aid for the difference.

Education Adequacy Aid. Education Adequacy Aid is provided to certain Abbott districts currently spending below their Adequacy Budgets. The aid is intended to help bring the district up to adequacy if the district is failing to meet education adequacy standards or is municipally overburdened.

B.

We know from this record that there were disputes among the educational experts who testified about numerous aspects of the process used by the State to construct its funding formula, as well as the adequacy of the funding delivered through the formula. Plaintiffs challenged the use of a PJP process for devising a formula to replace the remedial orders governing funding to Abbott districts. Also, plaintiffs challenged the process as it was implemented in New Jersey, specifically the first panel's membership. At a fundamental level, plaintiffs claimed that the PJP process was inadequate because it involved the use of a "model" district, which they analogize to the approach to funding under CEIFA that was found inadequate in Abbott IV. Finally, much of the hearing before the Special Master focused on the State's determination to impose a sliding scale of weights for concentrations of at-risk pupils, capped at the concentration of sixty percent.

All of those criticisms, discussed in the Special Master's Report, were raised in exceptions to the Report. Having also heard the arguments of counsel, we address each in turn.

1. Use of PJP Process in General and as Implemented in New Jersey

Plaintiffs contested the use of the PJP process to create SFRA, arguing that the approach did not focus on, or adequately take into consideration, the actual needs and costs of education in Abbott districts. As we described in detail before we remanded this matter in Abbott XIX, the State hired the firm of Augenblick, Palaich and Associates (APA) to conduct a PJP costing-out study of education in New Jersey. In brief, the PJP process asks panels of experts --- well-regarded educators experienced in delivering the State's curricular standards in different roles -- to determine the resources needed by students in order to attain the State-mandated CCCS. The report generated by APA formed the backbone of the funding formula eventually enacted as SFRA.

After hearing testimony from education experts for both plaintiffs and the State, the Special Master concluded that "APA implemented a fair process leading to an informed review of the necessary funding required to attempt to ensure a thorough and efficient education as required by the CCCS." App. at 38 (slip op. at 88). In so finding, he credited the testimony of several experts, particularly that of Dean David Monk of the College of Education at Pennsylvania State University, who testified that "the use of the PJP process was reasonable and provided a systemic approach to connect the inputs and outputs of the educational funding system." App. at 28 (slip op. at 78). The Special Master found not only that the PJP approach is "one of four accepted methodologies utilized to create a school funding formula," but that it is "the most commonly accepted methodology" in use. App. at 21 (slip op. at 71).

Plaintiffs argue that the State instead should have ascertained the actual spending in Abbott districts and used those costs to develop a funding formula. In support of that argument, they point to the State's use of such an approach instead of the PJP process to determine the funding level that would be allocated under SFRA to expand the Abbott preschool program to at-risk children throughout the state. Plaintiffs' logic does not compel the result they seek.

Although the State chose to use an actual-cost analysis using Abbott district data for preschool, it does not follow that that methodology would have been better suited, or even appropriate, to the more complex task of determining the funding levels that will provide for the inputs necessary for all students in the State to achieve the CCCS. We see no constitutional flaw in the State's decision to use a process regarded by national experts as one of the top four when developing a new comprehensive school funding scheme. Although the PJP process is not the only method by which the cost of providing necessary educational resources may be determined, Dean Monk viewed it as the "preferred" method for developing a grounded, need-based, statewide funding formula. We therefore adopt the Special Master's finding that, while "acknowledging [that] no one methodology can predict with unerring accuracy the monies needed to meet the standards provided (here, the CCCS)," we are "satisfied the PJP process established fairly and equitably the first step in constructing a constitutionally mandated equitable funding formula." App. at 38 (slip op. at 88).

Plaintiffs further argue that implementation of the PJP process was deficient, primarily because of the composition of the panels. For example, plaintiffs argue that, unlike the prior studies in which APA was involved where the first panel of experts consisted of school-level administrators, in New Jersey the initial PJP panel was comprised solely of Department of Education (DOE) employees.*fn10 The criticism is factually accurate but not substantiated as a flaw in the legitimacy of the product generated by the process. The Special Master was not persuaded that this represents a material failing in the PJP process. Neither are we.

The record developed before the Special Master shows that APA had "a wealth of experience in many states and is considered a leader in the field as it concerns the PJP process." Dean Monk recognized the firm to be "very capable, able," and testified that it is "among the top experts" in the development of funding formulas through the use of the PJP process. Thus, APA's expertise in running the PJP process was well established in the record. We therefore find support for rejecting criticism of the first panel's membership in the explanation provided by APA's Vice President, Justin Ryan Silverstein, who was present and assisted the New Jersey participants during the panel processes.

Silverstein testified that based on his experience in implementing the process, the first panel's membership had sufficient professional experience to be able to identify resources necessary to achieve the defined educational objectives. He also noted that the panelists gave clear justifications for their conclusions. The Special Master gave credence to that testimony when he concluded that the PJP process was a fair and equitable first step in the creation of a constitutional funding formula. App. at 38 (slip op. at 88). He further dismantled the criticism about the initial panel's composition by noting that each succeeding panel had "unbridled" freedom to change or modify the work of the previous panels and three of the eight panelists (37.5 percent) on the third panel were from Abbott districts. App. at 30-31 (slip op. at 80-81).

Based on that record, we conclude that although the New Jersey PJP process may have differed from the process as implemented in other states, any differences do not equate to constitutional shortcomings.

2. Model District

Plaintiffs also criticize the State's process because it used a "model" district, a defect that they say mirrors that which we found to exist in CEIFA. Indeed, in Abbott XIX, supra, we said that the State must show that, in devising SFRA, it had overcome the deficiencies we found in the development of CEIFA. 196 N.J. at 566. The Abbott IV, supra, decision, in which we addressed CEIFA, had faulted the State's use of a hypothetical school district to determine funding levels that did not account for the characteristics of Abbott districts. 149 N.J. at 172. According to plaintiffs, the model district used in SFRA is similarly flawed because it "was not based on the characteristics of the special needs districts." Ibid.

It is superficial to say that the methodology used in developing SFRA is "funding that is based on a model" and to discount it on that basis. The layered process used by the State in developing SFRA is not like the assumptive-based single model used in CEIFA. The process builds costs from the "ground up," as it has been described. The educators involved in developing the new funding formula that became SFRA were experienced and knowledgeable in delivering the CCCS standards in a variety of settings and for students of various types.*fn11

The CCCS had been implemented in all districts for years when educators were called together in panels to identify the resources needed for students at every level.*fn12 The same experienced educators also were asked to identify the resources needed for students having special needs or challenges. Again, those experts did so based on their experience in such matters, under the CCCS.

Thus, although those efforts were building to a formula from which per-pupil costs could be determined, it was unlike any "model" used before. Any formula can appear model-like in part, unless, of course, one is funding a statewide program based on an as-needed/individual district request basis. But with demographic changes increasingly presenting an at-risk population of pupils spread throughout the state (forty-nine percent of at-risk pupils are attending school in non-Abbott districts), the State determined that such an approach would be impracticable and unrealistic. We do not find the State's determination to be constitutionally infirm.

Furthermore, to the extent that the sliding scale of added weights for at-risk pupils, in particular, was determined from the perspective of implementation on the basis of a single district -- the largest -- that too does not convert SFRA's use of a "model" to the same type, or degree, of abstraction as that which concerned us about CEIFA. As the record reflects, the largest district was selected because, among other reasons, it was most likely to have higher concentrations of at-risk pupils and therefore was likely to have the most similar, and higher-cost set of needs for such pupil populations.

In sum, we do not find the State's approach to the formulation of per-pupil costs and additional weights used as the foundation for SFRA's funding formula to be constitutionally infirm.

3. Formula Not Specifically Abbott-District Based

In addition to disputing the appropriateness of any model to replicate the difficulties experienced when educating the disadvantaged pupils of the Abbott districts, plaintiffs also challenged certain specific aspects of SFRA's formula that they claimed were deficient in addressing actual characteristics prevalent in Abbott districts. Specifically, plaintiffs cited SFRA's method of providing aid to special education pupils, the issue of municipal overburden, and the cap on the formula's sliding scale of weights for concentrations of at-risk pupils in excess of sixty percent.

Running through plaintiffs' arguments is the assumption that only with reference to specific programs and funding levels in the Abbott districts can the State show "that it has overcome the deficiencies found in CEIFA's funding provisions as applied to Abbott districts." Abbott XIX, supra, 196 N.J. at 566. Plaintiffs contend that without analyzing the actual application of SFRA to Abbott districts, it is impossible for the State to show that students in those districts will be given the opportunity to achieve a thorough and efficient education.

The State presents its case for the constitutionality of SFRA based on the premise that there may be an "alternative approach[] to an equitable and constitutional" school funding formula. Abbott XIX, supra, 196 N.J. at 564; see also, Abbott IV, supra, 149 N.J. at 196 (recognizing parity remedy as interim). The State argues that a school funding formula satisfies constitutional requirements if it provides sufficient financial support for the resources necessary for students to achieve the CCCS. It is the State's contention that that formula may be an entirely new approach to school funding so long as it provides the funding necessary to meet the CCCS.

We have consistently maintained "that plaintiffs' right is one of thorough and efficient educational opportunity." Abbott IV, supra, 149 N.J. at 190; see also Abbott XIX, supra, 196 N.J. at 562 (reaffirming commitment to that constitutional guarantee). Accordingly, Court-ordered funding such as the parity remedy must be viewed as "simply one judicial remedy that can help to create that opportunity." Abbott IV, supra, 149 N.J. at 190. We have been explicit in our insistence that if the State could convincingly demonstrate that a substantive thorough and efficient education can be achieved, Court-imposed remedies would no longer be necessary. See, e.g., Abbott XIX, supra, 196 N.J. at 562; Abbott IV, supra, 149 N.J. at 196.

The State contends that showing that "SFRA was designed to exceed the requirements necessary" to provide an adequate education according to the CCCS to all students, meets that constitutional standard. App. at 73 (slip op. at 123). We agree that, with the establishment of the CCCS, and a new formula designed to tie realistic expenses to the cost of delivering those educational standards to all pupils, the State has provided this Court with what we lacked in past State education funding formulas. See Abbott IV, supra, 149 N.J. at 176 ("We are, however, still without any constitutional measuring stick against which to gauge the resources needed to provide that educational opportunity other than the inputs in the DFG I and J districts.").

It is in light of our recognition of the State's prerogative to create a new form of a constitutional funding formula that plaintiffs' specific concerns about the formula's provision of funds to Abbott districts must be addressed. Plaintiffs contend that SFRA fails to account for problems specific to Abbott districts, such as municipal overburden, high concentrations of special education students, and additional costs associated with concentrations of at-risk students over sixty percent. We address each of those arguments in turn.

(a) Municipal Overburden

Plaintiffs argue that SFRA is unconstitutional because it fails to account for municipal overburden in the Abbott districts. According to plaintiffs, SFRA relies on the Abbott districts to raise their LFS in order to support the Adequacy Budget, but because of municipal overburden those districts are unable to do so. The LFS is the amount that SFRA requires a district to contribute to its Adequacy Budget. While we recognize the concern expressed by plaintiffs, we are satisfied that SFRA provides various protective measures to alleviate the initial stress placed on the districts due to the requirement that they pay their LFS.

Under SFRA, a district is required to pay the lesser value of the LFS or last year's tax levy. To make up the difference in the amounts, SFRA provides for Adjustment Aid during the transition period. Adjustment Aid ensures that no district in 2008-2009 will receive less aid than it received in the 2007-2008 year plus two percent. The amount of funding then continues in subsequent years so that no district will receive less than its 2008-2009 aid. This aid enables districts spending above their Adequacy Budget to maintain their existing level of spending without significant tax levy increases. SFRA also provides that those districts that received Education Opportunity Aid in 2008 would be eligible for additional aid if they are under adequacy as the result of municipal overburden.

In addition, there is a four percent limit on the annual tax increase for school districts. See N.J.S.A. 40A:4-45.44 to -45.47. Plaintiffs argue that that limit will prevent the Abbott districts from reaching their LFS in order to fund their Adequacy Budget. SFRA, however, is designed to supplement the funding for those districts that cannot raise their LFS to the amount required, to ensure that they still receive their Adequacy Budget and are fully funded. SFRA further provides for periodic review measures, specifically requiring that the Commissioner study the limitations on growth levels in the districts and their abilities to meet the LFS. A determination must be made by the end of the 2010-2011 school year as to the best way to address any continuation of municipal overburden and the failure of certain districts to raise their LFS to the amount required.

The combination of those mechanisms undercuts plaintiffs' argument that SFRA is unconstitutional because of the risk of municipal overburden. The State recognizes that municipal overburden is a problem. Accordingly, it has provided for additional aid to those districts that are unable to raise their LFS in future years. The State expects that eventually every district will be able to contribute their LFS, but as the Commissioner testified, "they don't have to do that overnight." Therefore, at present we are satisfied that the potential for municipal overburden in Abbott districts has been addressed by the transition aid provided in SFRA.

(b) Special Education

Plaintiffs take issue with the State's use of a census-based method for funding one-third of special education costs. Under that method, a statewide classification rate of 14.69% is used to calculate the amount of aid for special education. Aid is allocated by multiplying that classification rate by the total number of students enrolled in a district. Plaintiffs contend that that method is not appropriate because the State did not analyze the distribution of children with disabilities across the State. Plaintiffs presented expert testimony that studies reveal an uneven distribution of children with disabilities throughout New Jersey and that there is a correlation between higher concentrations of special education students and poverty.

In testimony before the Special Master, the State's experts explained that the State used the census-based method to fund a portion of special education costs in order to counteract the tendency of school districts to over-classify students as needing special education, a problem they specifically identified in New Jersey. The record shows that New Jersey has a higher classification rate than any other state in the country. The average classification rate in the country is 8.96%. New Jersey's classification rate is 12.54%. Although we understand that Abbott districts may have greater numbers of special education students and therefore greater needs, we cannot conclude that SFRA's funding will be insufficient to meet those needs. The census-based method only accounts for one-third of the special education funding. SFRA funds the other two-thirds of special education costs by allocating an excess dollar amount for each special education student in a district. Extraordinary Aid is provided to reimburse districts for the expense of providing special education for those students whose costs are extraordinary, meaning above either $40,000 or $55,000 depending on whether the services are provided in-district. As part of its periodic review, the DOE must analyze the census-based methodology to determine if adjustments are necessary. The combination of those elements of SFRA's approach to special education persuades us that SFRA is designed to provide adequate funding for special education in Abbott districts. The Commissioner's obligation to review the census-based methodology in 2010 provides reassurance that any potential deficiencies will be corrected.

(c) At-risk weights

Plaintiffs argue that SFRA's failure to increase the at-risk weights in districts with poverty concentrations of greater than sixty percent does not account for the greater needs of those districts. Plaintiffs are particularly concerned with the sixty percent cap because twenty-four of the thirty-one Abbott districts have poverty levels in excess of sixty percent. Their experts testified before the Special Master that there are no studies supporting the proposition that when a district reaches a certain percentage of at-risk students, the per-pupil costs stabilize, rather than continuing to increase incrementally.

Of all the concerns raised by plaintiffs, the sixty percent cap was most troubling to the Special Master. We agree with the Special Master that this area is especially "worthy of consideration." App. at 33 (slip op. at 83). Ultimately, however, we conclude that the State has provided a reasonable explanation for the cap and it has reassured this Court by the commitment to revise the formula should elements, such as that cap, result in insufficient funding for at-risk students.

The State explained that in developing the at-risk weights it began with numbers generated by the PJP process. The PJP panels proposed a flat weight of .46 to be applied for every at-risk student in a district. One of the experts hired by the State to review the PJP results, Dr. Odden, evaluated that result and recommended a higher flat rate of .50 instead. In his report, he noted that a rate of .50 would be among the highest in the nation. Taking that advice into consideration, the State created SFRA's sliding scale that imposes weights from .47 to .57 per at-risk student, depending on the concentration of at-risk students in a district. Thus, for example, in a district with a low concentration of at-risk students (meaning zero to twenty percent at-risk), for each at-risk student enrolled, the district would receive 1.47 times the funding it received for a student without additional needs. Although the weights do not increase in districts with over sixty percent at-risk students, each at-risk student in those districts still generates 1.57 times the base amount. In this way, a district with over sixty percent at-risk students receives more absolute dollar aid under the formula than a district with exactly sixty percent at-risk students.

In creating SFRA's sliding scale of at-risk weights, the State relied on the opinion of APA that at high concentrations of at-risk students, the additional programs needed would essentially be provided to all students, obviating the need for certain regular education programs and flattening the amount of additional funding required in those schools. The State also argues that, because the PJP process is an established method for costing-out education, the provision of more funding than was recommended by that process should reassure this Court that adequate funding is being provided under the formula.

The evidence is sufficiently convincing that the level and manner of SFRA's funding to Abbott districts for at-risk students satisfies the constitutional standard. We recognize that, in making that determination, we are choosing to give the benefit of the doubt to the State as it implements a new innovative approach to providing sufficient resources to at-risk pupils wherever they happen to attend public school in New Jersey. In the absence of any empirical studies to prove or disprove the efficacy of a sixty percent cap, we find it reasonable for the State to have relied on the rationally explained advice and opinions of its experts and we are reassured by the State's decision to increase the weights over those initially recommended.

We do not have the prescience to know the effect that that cap, or any of the numerous decisions made by the State in creating SFRA, will have in each school district in New Jersey. Indeed, until the formula has had time to function as intended, it will be impossible to know precisely what its effect will be. Our Special Master credited the opinions and rationales of the experts whose advice the State followed when fashioning this funding formula. We accept those determinations of the Special Master and, therefore, accept as reasonable the State's exercise of judgment in developing this formula with its sliding scale of weights addressing the needs of concentrations of at-risk pupils. Our finding that that approach is not constitutionally infirm is tethered to the State's commitment diligently to review the formula after its initial years of implementation and to adjust the formula as necessary based on the results of that review. This Court remains committed to our role in enforcing the constitutional rights of the children of this State should the formula prove ineffective or the required funding not be forthcoming.

4.

Have we "reach[ed] the point where it is possible to say with confidence that the most disadvantaged school children in the State will not be left out or left behind in the fulfillment of that constitutional promise[?]" Abbott V, supra, 153 N.J. at 528. Based on the Special Master's findings, as far as it is possible to predict the effect of SFRA's design, it meets the constitutional mandate.*fn13 Ultimately, "[w]hether the measures for education reform that are to be implemented will result in a thorough and efficient education for the children in the Abbott districts depends, in the final analysis, on the extent to which there is a top-to-bottom commitment to ensuring that the reforms are conscientiously undertaken and vigorously carried forward." Ibid. SFRA will remain constitutional only if the State is firmly committed to ensuring that the formula provides those resources necessary for the delivery of State education standards across the State.

IV.

Judgments such as the one concerning the sixty percent cap on the sliding scale of weights for at-risk pupils occurred throughout the process that led to SFRA as enacted. The record is filled with instances where DOE and its experts debated the appropriate level of resources, or cost, or weight, or scale, to use. At each such opportunity, however, they "erred" on the side of providing more generous aid.

A costing-out study such as that engaged in by the State is rife with policy choices that are legitimately in the Legislature's domain. In the record below, each value judgment attacked was demonstrated to have been made in good faith, and on the basis of available factual data informed by advice from experts, including national experts, whose testimony revealed that they had the interests of the pupils in mind. The record reflects that the Executive and Legislature have engaged in an accepted process to develop a fair and adequate funding system for use across the state. We see no reason, or basis, for us to second-guess the extraordinarily complex education funding determinations that went into the formulation of the many moving parts to this funding formula.

It is true that the experts who testified below disagreed on many aspects of the formula and how they would operate in fact. Those disagreements do not lend themselves to one true answer, in part because of their predictive nature. The important point is that resolution of those conflicts is, in the first instance, a judgment for the Executive and Legislature to make. In Abbott IV, supra, we observed that "[t]he judicial remedy is necessarily incomplete . . . and cannot substitute for the comprehensive remedy that can be effectuated only through legislative and executive efforts." 149 N.J. at 189. Our prior remedial orders were put in place due to the State's failure to create a reliable assessment of the resources needed to deliver the CCCS in districts with concentrations of disadvantaged pupils.

Now the State painstakingly has worked to develop such a record, assisted by an experienced firm that has acted as a consultant to other states facing a similar need for a rational costing out study for education funding. The State chose what it perceived to be the best overall option based on the expert justifications offered during the process of constructing the formula. This record demonstrates that there were many funding issues that were debated by education experts in good faith and collaboratively resolved during the PJP processes that led up to a draft formula. The formula then was vetted, made more generous due to the input of panels of more experts unaffiliated with the DOE, and adopted wholesale into law. Our role is not to substitute our judgment for the State's. We do not sit to second guess those nuanced and complex education funding decisions. Yet, in this instance we are effectively asked to pass on the exercise of judgment by the executive and legislative branches. Unlike in prior moments in the history of school funding litigation in this state, we do not now confront legislative inaction or failure to identify and provide realistic education funding support to at-risk children whose severe educational challenges cause their programs to be the most costly. It was previous indifference to a constitutional deprivation that started us down the Robinson/Abbott path. Although that may have been our point of embarkation, today we are in a different place.

The State has constructed a fair and equitable means designed to fund the costs of a thorough and efficient education, measured against delivery of the CCCS.*fn14 The quality of the effort and the good faith exhibited in the exercise of discretion over and over again at decision-points during SFRA's development lead us to conclude that the legislative effort deserves deference. The Legislature and Executive have made considerable efforts to confront the difficult question of how to address the education needs of at-risk pupils, no matter where those children attend school. Those efforts are all the more impressive due to the coordinate branches' collective will to do so during difficult economic times when there is extreme pressure on scarce State resources.

Although we do not have the ability to see ahead and to know with certainty that SFRA will work as well as it is designed to work, we trust that the State will not allow our school districts to regress to the former problems that necessitated judicial intervention in the first place. Indeed, our finding of constitutionality is based, in no small part, on the expectation that the Legislature and Executive will not permit that deplorable state of affairs to recur in our school districts.

V.

Although the Special Master recommended that SFRA be found to be constitutional, he further recommended that supplemental funding continue to Abbott districts, during and until the three year look-back review of SFRA. He did so because he could not predict SFRA's immediate and practical effect on the delivery of educational services in Abbott districts. App. at 82 (slip op. at 132). The State could not have been stronger in arguing to the contrary, that it would undercut the cohesiveness of the new funding scheme to allow the continuation of supplemental funding.

This funding formula was designed to operate as a unitary whole and, in order to achieve its beneficial results, it must be allowed to work as it was intended. The many layers of costs that were factored into the base per-pupil amount, the added weights, and the many types of additional aid that are provided in order to transition districts to SFRA's funding levels, are all designed to provide sufficient resources and at the same time to incentivize fiscal efficiency.*fn15 As designed under SFRA's funding scheme, all districts will benefit from the formula's insistence on predictability and transparency in budgeting, and accountability, and, at the same time, at-risk children across the state will benefit.

Although we cannot evaluate with precision the changes that a switch to funding under SFRA will entail in each Abbott district, there is comfort in knowing that until the look-back evaluation of SFRA's initial years of implementation takes place, the Abbott districts will have two sources of additional money that will provide a substantial cushion of resources. We cannot ignore the State's estimation that the Abbott districts will receive, cumulatively over the next two years, approximately $630 million in federal funds.*fn16 In allowing that practical consideration to be a factor in the determination to move forward with SFRA, we perceive no inconsistency with Abbott II. The federal funds are not being used as a crutch against some structural failing in the funding scheme itself. Rather, we simply refuse to ignore the stark reality of such a large amount of federal funds for the Abbott districts' use during the same period in which they claim they require the continuation of supplemental funding.

In addition, there is also Emergency Aid that the DOE has budgeted and will have available for districts if they need it. The combination of both safety nets of considerable resources is significant and tips in favor of allowing SFRA to be implemented as it was designed. SFRA is meant to be a state-wide unitary funding system whose elements shall be subject to periodic reexamination and retooling as necessary to keep the formula operating with equity, transparency, and predictability. Because the supplemental funding may undermine or distort the effectiveness of SFRA, we decline to order its continuation over the next few years until the look-back occurs.

The State asks to implement SFRA as it was designed to gain the transparency, equity, and predictability that everyone is interested in achieving: from the parents of school age children, to district and school personnel, to average taxpaying citizens, to the district next door looking at the resources of its neighbors, and to the State as regulator and as lawmaker. With this decision, that full implementation shall proceed.

VI.

For several decades, this Court has superintended the ongoing litigation that carries the name Abbott v. Burke. The Court's one goal has been to ensure that the constitutional guarantee of a thorough and efficient system of public education becomes a reality for those students who live in municipalities where there are concentrations of poverty and crime. Every child should have the opportunity for an unhindered start in life -- an opportunity to become a productive and contributing citizen to our society.

The legislative and executive branches of government have enacted a funding formula that is designed to achieve a thorough and efficient education for every child, regardless of where he or she lives. On the basis of the record before us, we conclude that SFRA is a constitutionally adequate scheme. There is no absolute guarantee that SFRA will achieve the results desired by all. The political branches of government, however, are entitled to take reasoned steps, even if the outcome cannot be assured, to address the pressing social, economic, and educational challenges confronting our state. They should not be locked in a constitutional straitjacket. SFRA deserves the chance to prove in practice that, as designed, it satisfies the requirements of our constitution.

The State's motion, seeking declarations that SFRA satisfies the requirements of the thorough and efficient clause of Article VIII, section 4, paragraph 1 of the New Jersey Constitution and that the funding formula may be implemented in the Abbott districts, and further seeking an order relieving the State from this Court's prior remedial orders concerning funding to the Abbott districts, is granted. Plaintiffs' cross-motion seeking an order preserving and continuing the status quo concerning enforcement of this Court's prior remedial orders addressing funding to Abbott districts is denied.

JUSTICES ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE RABNER and JUSTICE LONG did not participate.

Hearings: February 9, 2009 to March 3, 2009

Decided: March 24, 2009

Honorable Peter E. Doyne, ...


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