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Crawford v. Davy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 23, 2009

JOSHUA CRAWFORD, JASON CRAWFORD, AND JUSTIN CRAWFORD, MINORS, BY THEIR GUARDIAN AD LITEM, VAN-NESS CRAWFORD; TYWAN DAVIS, MINOR, BY HIS GUARDIAN AD LITEM, FLOYD TALLY; CATHTYA VELASQUEZ AND CATHYDIA RUIZ, MINORS, BY THEIR GUARDIAN AD LITEM, ENRIQUE RUIZ; KEYINA ROYALL, MINOR, BY HER GUARDIAN AD LITEM, MICHELE ROYALL; SHAKUR MCNAIR AND VANISHA MCNAIR, MINORS, BY THEIR GUARDIANS AD LITEM, ERICKA AND SHARON MCNAIR; ALEXIS MENDEZ, MINOR, BY HIS GUARDIAN AD LITEM, MELITZA MENDEZ; NAJEE AND J-AJANAE BEY, MINORS, BY THEIR GUARDIAN AD LITEM, ANETRA BEY; DONTE RAMOS, MINOR, BY HER GUARDIAN AD LITEM, MARIBEL RAMOS, PLAINTIFFS-APPELLANTS,
v.
LUCILLE DAVY, STATE COMMISSIONER OF EDUCATION; YUT'SE THOMAS, DIRECTOR OF THE OFFICE OF SCHOOL FUNDING; ROBERT G. KOERTZ, DIRECTOR OF STATE BUDGET AND ACCOUNTING; BRADLEY ABELOW, NEW JERSEY STATE TREASURER; STATE BOARD OF EDUCATION; AND BOARDS OF EDUCATION OF: ASBURY PARK, ATLANTIC CITY, BEVERLY CITY, BOUND BROOK, BRIDGETON, CAMDEN, CLEMENTON BOROUGH, EAST ORANGE, ELIZABETH, ENGLEWOOD CITY, IRVINGTON, JERSEY CITY, LAKEWOOD TOWNSHIP, LAWNSIDE BOROUGH, MILLVILLE CITY, NEW BRUNSWICK, NEWARK, ORANGE, PATERSON, PERTH AMBOY, SALEM CITY, TRENTON, WILDWOOD, WOODBINE, AND WOODLYNNE BOROUGH, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-137-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2008*fn1

Before Judges Rodríguez, Waugh and Newman.

Plaintiffs appeal the dismissal of their putative class action seeking to vindicate their rights, and those of the proposed class, to a "thorough and efficient education" as guaranteed by the New Jersey Constitution, N.J. Const. art. VIII, § 4 ("thorough and efficient education" clause), and other constitutional and statutory provisions. They allege that those rights have been violated by various defendant State officials*fn2 and various defendant school districts,*fn3 as evidenced by the overall poor performance of students in the defendant school districts on standardized tests designed to measure proficiency in connection with applicable State educational standards.

According to their amended complaint, the primary injunctive relief sought by plaintiffs is (1) an injunction against enforcement of the statutes creating local school districts for free public education, N.J.S.A. 18A:8-1 and N.J.S.A. 18A:38-1, and requiring attendance at those schools, N.J.S.A. 18A:38-25, by those unable to afford private school tuition; and (2) a corresponding injunction requiring such failing school districts to permit students in their districts to withdraw from the district's schools and attend other schools of their choice, whether public or private, at the district's expense.

The amended complaint was dismissed by the Chancery Division, which concluded (1) that the defendant school districts were not appropriate defendants because they cannot "unilaterally" provide the relief sought by plaintiffs; and (2) that plaintiffs' claims are not "justiciable" and, in any event, premature in the absence of a well-developed factual record. On appeal, plaintiffs ask us to reverse the Chancery Division, reinstate their amended complaint, and either remand the case to the Chancery Division or to a special master for the creation of a factual record. They resist any suggestion that they have failed to exhaust administrative remedies or that the matter should be transferred to the New Jersey Department of Education.

I.

The named plaintiffs, who are suing through their respective parents or legal guardians, are students at public schools operated by the defendant districts. Plaintiffs characterize those school districts as "failing" because their schools "have failed achievement of Core Curriculum Content Standards [(CCCS), N.J.A.C. 6A:8-1.1 to -3.4,] for the last two years or longer," based upon fifty percent of their students having failed both the language arts and mathematics sections of state-mandated assessment tests, N.J.A.C. 6A:8-4.1, or seventy- five percent having failed one of those test sections.

Plaintiffs seek to represent a purported class of 60,000 schoolchildren from ninety-six public schools in twenty-five municipalities that are similarly "failing."

Plaintiffs filed their initial complaint on July 13, 2006, in the Chancery Division, General Equity Part in Essex County.

The action was subsequently transferred to the General Equity Part in Mercer County by consent. On October 2, 2006, the State defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted, pursuant to Rule 4:6- 2(e). The Boards of Education of Bound Brook, Englewood, Wildwood, Woodbine, Atlantic City, Asbury Park, East Orange, Elizabeth, Jersey City, Paterson, Perth Amboy, Salem and Trenton also filed motions to dismiss. The School Boards of Millville, Woodlynne, Bridgeton, Camden, Lawnside, Newark, Lakewood, Irvington, Orange, Beverly City and Clementon filed answers.

The Board of Education of Millville filed a motion to dismiss in addition to its answer.

The General Equity judge held a case management conference in December 2006, at which he gave plaintiffs leave to file an amended complaint and set forth a briefing schedule on the pending motions. Plaintiffs filed their amended complaint in January 2007, adding two additional named plaintiffs. Those districts that had initially filed answers duly filed answers to the amended complaint.

The amended complaint contained four counts alleging that defendants: (1) violated plaintiffs' right to a "thorough and efficient education" guaranteed by the "thorough and efficient education" clause; (2) violated their equal protection rights under Article 1, Paragraph 1 of the New Jersey Constitution by allowing "[d]istrict boundaries and mandatory attendance zones [to] consign plaintiff schoolchildren to schools that are failing, while other similarly situated schoolchildren . . . are assigned to schools that are not failing;" (3) violated their equal protection rights under the Fourteenth Amendment to the United States Constitution on the same basis; and (4) violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), by depriving them of the constitutional rights asserted in the first three counts.

Plaintiffs sought the following relief:

(a) Declare that district boundaries, N.J.S.A. 18A:8-1 and 18A:38-1, and compulsory attendance laws, N.J.S.A. 18A:38-25, and/or mandatory attendance zones, violate the Thorough and Efficient Education and Equal Protection clauses of the Constitution of the State of New Jersey and the Fourteenth Amendment of the Constitution of the United States when they are applied to consign children to failing schools;

(b) Declare that a defined level of ongoing partial proficiency (or failure) on any of the State's standardized assessment tests is evidence of, or constitutes, a violation of the Thorough and Efficient Education clause of the Constitution of the State of New Jersey;

(c) Declare that the Defendants' actions and omissions violate the Thorough and Efficient Education and Equal Protection clauses of the Constitution of the State of New Jersey and the Fourteenth Amendment of the United States Constitution;

(f) Preliminarily and permanently enjoin Defendants from enforcing the district boundaries, N.J.S.A. 18A:8-1 and 18A:38-1, the compulsory attendance law, N.J.S.A. 18A:38-25, and any residential school assignments or mandatory attendance zones when they would consign plaintiff schoolchildren to failing schools;

(g) Preliminarily and permanently order Defendants to permit plaintiff schoolchildren to withdraw from the failing schools they attend or will attend in future school years;

(h) Preliminarily and permanently order Defendants to utilize the share of State and local district funding allocable to each plaintiff schoolchild, who chooses to withdraw from a failing school, to pay for the cost of tuition of that plaintiff schoolchild in an alternative non-failing public or private school of his or her choice within the State of New Jersey;

(i) Preliminarily and permanently enjoin Defendants from expending or authorizing the expenditure of state and local per pupil funding annually appropriated for plaintiff schoolchildren and allotted to the public schools to which plaintiff schoolchildren are presently assigned in any way that impairs the ability of the Defendants to comply with the relief to which plaintiff schoolchildren are entitled;

(j) Award plaintiff schoolchildren reasonable attorney's fees and costs of suit pursuant to N.J.S.A. 10:6-2(f); and

(k) Grant plaintiff schoolchildren such other relief as the Court deems just and proper.

Plaintiffs sought class certification as to both plaintiffs and defendants. See R. 4:32.

The General Equity judge heard oral argument on the motions to dismiss in April 2007. On October 4, 2007, the judge issued a detailed written decision and accompanying order, granting defendants' motions to dismiss. The judge first determined that plaintiffs had standing to file the lawsuit. He next concluded that the school boards "have no authority to simply ignore district boundaries or compulsory attendance laws" and "cannot unilaterally provide the relief sought by Plaintiffs." The judge observed that, while "under appropriate circumstances," he could order that the defendant school boards "actively pursue entering into sending/receiving relationships," the plaintiffs were not seeking that specific relief. Consequently, he dismissed the amended complaint as to the defendant school districts.

Focusing on the primary remedies sought by plaintiffs, the judge held that plaintiffs' claims were non-justiciable because he could not "craft this remedy to be 'at once effective and judicially enforceable.'" The judge also held that, even if the claims were justiciable, plaintiffs could not state a cause of action on the basis of an equal protection violation, under either the State or Federal Constitutions, because there were no allegations that the Legislature intended to discriminate against any class when creating the state's school systems on the basis of districts primarily congruent with existing municipal boundaries. The judge also determined that plaintiffs' claim under N.J.S.A. 10:6-2(c) failed because their claim under the "thorough and efficient education" clause was non-justiciable and their federal and state equal protection clause claims were deficient.

This appeal followed.

II.

Our standard of review is de novo when reviewing an order granting dismissal under Rule 4:6-2(e). A reviewing court must examine "'the legal sufficiency of the facts alleged on the face of the challenged claim.'" Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) (quoting P&J Auto Body v. Miller, 72 N.J. Super. 207, 211 (App. Div. 1962)). In doing so, we must search "the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Leon v. Rite Aid Corp., 340 N.J. Super. 462, 466 (App. Div. 2001) (quoting Printing Mart- Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)).

However, we review judgments, not decisions, and may affirm on any ground. Serrano v. Serrano, 367 N.J. Super. 450, 461 (App. Div. 2004) ("Although we affirm for different reasons, a judgment will be affirmed on appeal if it is correct, even though 'it was predicated upon an incorrect basis.'" (quoting Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968))).

A.

We begin by noting that the core issue raised by plaintiffs, that students in certain school districts do not receive the "thorough and efficient education" guaranteed by the "thorough and efficient education" clause, has been the subject of extensive and ongoing litigation, primarily before our Supreme Court, since the early 1970's. See, e.g., Robinson v. Cahill, 62 N.J. 473, 515-16 (1973) (finding New Jersey's then existing system of financing elementary and secondary public schools to be unconstitutional); Abbott v. Burke, 119 N.J. 287, 295 (1990) (Abbott II) (finding the then school funding formula unconstitutional); Abbott v. Burke, 136 N.J. 444, 454 (1994) (Abbott III) (finding that funding needed to be coupled to a set of educational program standards); and Abbott v. Burke, 199 N.J. 140, 146 (2009) (Abbott XX) (declaring the current school funding, evaluation and remediation system to be constitutional).*fn4 The most recent special master's report, annexed as an appendix to Abbott XX, supra, 199 N.J. at 178-89, contains a detailed history of the prior litigation concerning efforts to enforce the "thorough and efficient education" clause.

In Abbott XX, the Supreme Court reflected on its role in the Abbott cases:

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.

[Id. at 174.]

Consequently, it cannot be said that the question of compliance with the "thorough and efficient education" clause is itself a non-justiciable issue.

At the same time, the Supreme Court also reflected on the fact that primary responsibility for implementation of that constitutional provision rests with the elected branches of State government.

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 [the School Funding Reform Act] 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.

[Id. at 175.]

Consequently, the Court upheld the School Funding Reform Act of 2008 (SFRA), N.J.S.A. 18A:7F-43 to -63, as facially constitutional, subject to reevaluation following "the chance to prove in practice that, as designed, it satisfies the requirements of our constitution." Ibid.

As is evidenced by the history outlined above and set out in more detail in the appendix to Abbott XX, the Supreme Court's primary method of enforcing the "thorough and efficient education" clause has been to assure that there are sufficient State funds available to supplement those raised through property taxes in school districts found to be in need of additional funding. Nevertheless, the Court has on occasion required the adoption of programs and policies it deemed necessary to implement the constitutional requirement, after an extensive factfinding process involving the other branches of government:

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.

In directing remedial relief in the areas of whole school reform, supplemental programs, and facilities improvements, the Court remains cognizant of the interests of the parties, particularly those of plaintiffs who speak for and represent the at-risk children of the special needs districts. The lessons of the history of the struggle to bring these children a thorough and efficient education render it essential that their interests remain prominent, paramount, and fully protected.

Whether 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. That commitment on the part of the Executive Branch has been demonstrated by the Commissioner's strong proposals and positive avowals to see these reforms through. The Legislature's commitment is evidenced by the sound and comprehensive public education that is contemplated by the statute within which these reforms will be effected. It is not enough, however, that the three branches of government, sometimes working together and sometimes at apparent odds, have each responded to the challenge to carry out the Constitution's command of a thorough and efficient education. We must reach 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. Success for all will come only when the roots of the educational system - the local schools and districts, the teachers, the administrators, the parents, and the children themselves - embrace the educational opportunity encompassed by these reforms.

[Abbott v. Burke, 153 N.J. 480, 527-28 (1998) (Abbott V).]

Consequently, it is clear that the Court will, under appropriate circumstances and on an appropriate record, go beyond the issue of funding.

In their amended complaint, plaintiffs contend that the defendant school districts are "failing" because of their students' scores on tests intended "to evaluate student achievement of the [CCCS]." N.J.A.C. 6A:8-4.1(b). Rather than seeking available administrative action to improve what they perceive as a "failing" performance by the districts, plaintiffs seek instead a judicial declaration of unconstitutionality with respect to the State's longstanding structure of public education based on school districts that are largely contiguous with municipality of residence. While we decline to address the hypothetical issue of whether such a remedy would ever be appropriate to facilitate the proper implementation of the "thorough and efficient education" clause, we agree with the General Equity judge that even to contemplate such a remedy at this time is exceedingly premature and, consequently, inappropriate.

In addition to providing State funding, the Legislature has enacted a series of reforms intended to assure the provision of a "thorough and efficient education" on a statewide basis. For example, N.J.S.A. 18A:7A-10 provides for the creation and implementation of the New Jersey Quality Single Accountability Continuum:

For the purpose of evaluating the thoroughness and efficiency of all the public schools of the State, the commissioner, with the approval of the State board and after review by the Joint Committee on the Public Schools, shall develop and administer the New Jersey Quality Single Accountability Continuum for evaluating the performance of each school district. The goal of the New Jersey Quality Single Accountability Continuum shall be to ensure that all districts are operating at a high level of performance. The system shall be based on an assessment of the degree to which the thoroughness and efficiency standards established pursuant to [N.J.S.A. 18A:7F-46] are being achieved and an evaluation of school district capacity in the following five key components of school district effectiveness: instruction and program; personnel; fiscal management; operations; and governance. A school district's capacity and effectiveness shall be determined using quality performance indicators comprised of standards for each of the five key components of school district effectiveness.

The quality performance indicators shall take into consideration a school district's performance over time, to the extent feasible. Based on a district's compliance with the indicators, the commissioner shall assess district capacity and effectiveness and place the district on a performance continuum that will determine the type and level of oversight and technical assistance and support the district receives.

The tests relied upon by plaintiffs in their amended complaint were administered as part of the resulting program. See N.J.A.C. 6A:8-4.1. The testing program results in annual reports to the school districts and the public "on the progress of all students and student subgroups in meeting the [CCCS] as measured by the Statewide assessment system." N.J.A.C. 6A:8- 4.5(a) and (b).

N.J.S.A. 18A:7A-14 requires the Commissioner to review the test results and take appropriate remedial action when necessary. The broad array of remedial measures range from the provision of "technical assistance" to "partial" or "full" "state intervention" in the operation of the school district.

a. The commissioner shall review the results of the report submitted pursuant to sections [N.J.S.A. 18A:7A-10 and N.J.S.A. 18A:7A-11] and after examination of all relevant data, including student assessment data, determine where on the performance continuum the district shall be placed. The commissioner, through collaboration, shall establish a mechanism for parent, school employee and community resident input into the review process. . . .

b. If a school district satisfies 50 percent to 79 percent of the quality performance indicators in any of the five key components of school district effectiveness, the commissioner shall require the district to develop an improvement plan to address the quality performance indicators with which the district has not complied and to increase district capacity through the provision of technical assistance and other measures designed to meet the district's needs. The improvement plan shall be submitted to and approved by the commissioner. In accordance with the improvement plan, the commissioner shall provide technical assistance to the district. If necessary, the commissioner may authorize an in-depth evaluation of the district to determine the causes for the district's noncompliance with the quality performance indicators.

The commissioner shall review the district's progress in implementing the improvement plan not less than every six months. If the commissioner finds, based on those reviews, that after two years the district has not satisfied 80 to 100 percent of the quality performance indicators in each of the five key components of school district effectiveness, the commissioner may require the district to amend the improvement plan. The amended plan shall be submitted to the commissioner for approval.

If a district effectively implements its improvement plan and is able to satisfy 80 to 100 percent of the quality performance indicators in each of the five key components of school district effectiveness through the interventions set forth in this subsection, the commissioner shall issue the district a letter of recognition designating the district as a high performing district. The commissioner shall recommend that the State board certify the school district for a period of three years as providing a thorough and efficient system of education, contingent on continued progress in meeting the quality performance indicators. If the district has not effectively implemented its improvement plan and has not satisfied 80 to 100 percent of the quality performance indicators in each of the five key components of school district effectiveness through the interventions set forth in this subsection, the commissioner shall issue the district a letter detailing the areas in which the district remains deficient.

c. (1) If a school district satisfies less than 50 percent of the quality performance indicators in four or fewer of the five key components of school district effectiveness, the commissioner shall authorize an in-depth evaluation of the district's performance and capacity unless the commissioner determines that a comprehensive evaluation of the district by or directed by the department has occurred within the last year. Based on the findings and recommendations of that evaluation, the district, in cooperation with the department, shall develop an improvement plan to address the quality performance indicators with which the district has not complied and to increase district capacity through the provision of technical assistance and other measures designed to meet the district's needs. The improvement plan shall be submitted to the commissioner for approval. Upon approval, the commissioner shall provide the district with the technical assistance outlined in the plan and shall assure that the district's budget provides the resources necessary to implement the improvement plan.

The commissioner shall review the district's progress in implementing the improvement plan not less than every six months. The reviews shall include an on- site visit. If the commissioner finds, based on those reviews, that after two years the district has not satisfied at least 50% of the quality performance indicators in each of the key components of school district effectiveness, the commissioner may require the district to amend the improvement plan. The amended plan shall be submitted to the commissioner for approval.

Nothing in this paragraph shall be construed to prohibit the State board from directing the district to enter partial State intervention prior to the expiration of the two-year period.

(2) The district's improvement plan may include the appointment by the commissioner of one or more highly skilled professionals to provide technical assistance to the district in the areas in which it has failed to satisfy the quality performance indicators. Each highly skilled professional shall work collaboratively with the district to increase local capacity in the areas of need identified in the improvement plan. The cost for the compensation of the highly skilled professionals shall be a shared expense of the school district and the State, with the State assuming one-half of the cost and the school district being responsible for one-half of the cost.

(3) If the district satisfies less than 50% of the quality performance indicators in one to four of the five key components of school district effectiveness, the commissioner may also order the district board of education to show cause why an administrative order placing the district under partial State intervention should not be implemented. The plenary hearing before a judge of the Office of Administrative Law pursuant to the "Administrative Procedure Act," [N.J.S.A. 52:14B-1 to -15], upon said order to show cause, shall be conducted on an expedited basis and in the manner prescribed by subdivision B of article 2 of chapter 6 of Title 18A of the New Jersey Statutes. In the proceeding the State shall have the burden of showing that the recommended administrative order is not arbitrary, unreasonable or capricious.

If, after a plenary hearing, the commissioner determines that it is necessary to take corrective action, the commissioner shall have the power to order necessary budgetary changes within the district or other measures the commissioner deems appropriate to establish a thorough and efficient system of education.

If the board fails to show cause why an administrative order placing the district under partial State intervention should not be implemented, the commissioner shall recommend to the State board that it issue an order placing the district under partial State intervention. Notwithstanding any other provision of law to the contrary and upon its determining that the school district is not providing a thorough and efficient system of education, the State board may place the district under partial State intervention. Nothing herein shall limit the right of any party to appeal the State board's order to the Superior Court, Appellate Division.

(5) In addition to the highly skilled professionals appointed pursuant to paragraph (2) of this subsection to provide technical assistance to the district in implementing its improvement plan, the commissioner, in consultation with the local board of education, may appoint one or more highly skilled professionals in a district under partial State intervention to provide direct oversight in the district regarding the quality performance indicators with which the district has failed to comply. The highly skilled professional shall represent the interests of the commissioner in all matters relating to the component of school district effectiveness that is under intervention and over which the highly skilled professional is providing direct oversight. The powers and authorities of the highly skilled professional shall include, but not be limited to:

(a) overseeing the operations of the district in the area of intervention over which the highly skilled professional is assigned to provide direct oversight;

(b) ensuring the development and implementation of the district improvement plan with respect to the area over which the highly skilled professional is assigned to provide direct oversight;

(c) overriding a chief school administrator's action and a vote by the board of education regarding matters under direct oversight of the highly skilled professional;

(d) attending all meetings of the board of education, including closed sessions; and

(e) obligating district funds for matters relating to the area under State intervention over which the highly skilled professional is providing direct oversight.

In the event that there is a need to hire, promote, or terminate employees working in the area of intervention over which the highly skilled professional is assigned to provide direct oversight, the hiring, promotion, and termination of those employees shall be determined by the State board upon the recommendation of the commissioner.

The highly skilled professional shall work collaboratively with the superintendent, the board of education and the employees of the district working in the area of the oversight to address areas identified in the improvement plan.

When the commissioner appoints more than one highly skilled professional in a district under partial State intervention, he shall delineate the scope and extent of authority of each highly skilled professional appointed and shall establish a decision-making hierarchy for the highly skilled professionals and personnel in the district. The highly skilled professional shall report directly to the commissioner or his designee on a bi-weekly basis and shall report monthly to the board of education and members of the public at the regularly scheduled board of education meeting. The salary of a highly skilled professional appointed pursuant to this paragraph shall be fixed by the commissioner and adjusted from time to time as the commissioner deems appropriate. The cost of the salaries of the highly skilled professionals shall be a shared expense of the school district and the State, with the State assuming one-half of the cost and the school district being responsible for one-half of the cost. For the purpose of the New Jersey Tort Claims Act, [N.J.S.A. 59:1-1 to -7], the highly skilled professional appointed pursuant to this paragraph shall be considered a State officer.

(6) With the State board's approval the commissioner may appoint up to three additional members to the board of education of a district under partial State intervention. The board of education's membership shall remain increased by these additional seats until the State withdraws from intervention. If the commissioner appoints three additional members pursuant to this paragraph, the commissioner shall appoint one of these additional members from a list of three candidates provided by the local governing body of the municipality in which the school district is located. The commissioner shall make every effort to appoint residents of the district. A board member appointed by the commissioner shall be a nonvoting member of the board and shall have all the other rights, powers and privileges of a member of the board. A board member appointed by the commissioner shall report to the commissioner on the activities of the board of education and shall provide assistance to the board of education on such matters as deemed appropriate by the commissioner, including, but not limited to, the applicable laws and regulations governing specific school board action. A member appointed by the commissioner shall serve for a term of two years. The commissioner shall obtain approval of the State board for any extension of the two-year term. Any vacancy in the membership appointed by the commissioner shall be filled in the same manner as the original appointment.

If a board of education is subject to additional appointments pursuant to [N.J.S.A. 52:27BBB-63], then the provisions of this paragraph shall not be applicable during the period in which the board is subject to those appointments.

Six months following the district being placed under partial State intervention, the commissioner shall determine whether or not the board members he has appointed shall become voting members of the board of education. If the commissioner determines that the board members he has appointed shall become voting members, the school district shall have 30 days to appeal the commissioner's determination to the State Board of Education.

(7) Based on the district's success in implementing its improvement plan, the commissioner shall make a determination to withdraw from intervention in one or more of the areas that have been under State intervention, to leave one or more areas under State intervention or to recommend to the State Board of Education that the district be placed under full State intervention.

If the commissioner determines that the district has successfully implemented the improvement plan and achieved sufficient progress in satisfying the performance indicators in one or more areas under intervention, the State shall withdraw from intervention in the district in those areas.

e. (1) If a school district satisfies less than 50 percent of the quality performance indicators in each of the five key components of school district effectiveness, the commissioner shall authorize an in-depth evaluation of the district's performance and capacity, unless the commissioner determines that a comprehensive evaluation of the district by or directed by the department has occurred within the last year. Based on the findings and recommendations of that evaluation, the district, in cooperation with the department, shall develop an improvement plan to address the quality performance indicators with which the district has not complied and to increase district capacity through the provision of technical assistance and other measures designed to meet the district's needs. The improvement plan shall be submitted to the commissioner for approval. Upon approval, the commissioner shall provide the district with the technical assistance outlined in the plan and shall assure that the district's budget provides the resources necessary to implement the improvement plan.

The commissioner shall review the district's progress in implementing the improvement plan not less than every six months. The reviews shall include an on-site visit. If the commissioner finds, based on those reviews, that after two years the district has not satisfied at least 50% of the quality performance indicators in each of the key components of school district effectiveness, the commissioner may require the district to amend the improvement plan. The amended plan shall be submitted to the commissioner for approval.

Nothing in this paragraph shall be construed to prohibit the State board from directing the district to enter full State intervention prior to the expiration of the two-year period.

(2) The district's improvement plan may include the appointment by the commissioner of one or more highly skilled professionals to provide technical assistance to the district in the areas in which it has failed to satisfy the quality performance indicators. Each highly skilled professional shall work collaboratively with the district to increase local capacity in the areas of need identified in the improvement plan. The cost for the compensation of the highly skilled professionals shall be a shared expense of the school district and the State, with the State assuming one-half of the cost and the school district being responsible for one-half of the cost.

[N.J.S.A. 18A:7A-14.]

The Commissioner's broad statutory authority is implemented through a set of comprehensive regulations. N.J.A.C. 6A:30 (Chapter 30). The "purpose and scope" of Chapter 30 is to establish rules to implement the New Jersey Quality Single Accountability Continuum (NJQSAC) system, as required by N.J.S.A. 18A:7A-3 et seq., for evaluating and monitoring all public school districts in the State. NJQSAC is designed to be a single, comprehensive accountability system that consolidates and incorporates the monitoring requirements of applicable State and Federal programs. NJQSAC is also intended to complement, and serve in part to implement, Federal requirements. Under NJQSAC, public school districts are evaluated in five key component areas of school district effectiveness-instruction and program, personnel, fiscal management, operations and governance-to determine the extent to which public school districts are providing a thorough and efficient education. The standards and criteria by which public school districts are evaluated will assess actual achievement, progress toward proficiency, local capacity to operate without State intervention, and the need for support and assistance provided by the State. Under NJQSAC, once a public school district is identified as requiring assistance in one or more of the five areas of school district effectiveness, the Department and the public school district will work collaboratively to improve public school district performance in those targeted areas. The measures used to achieve this goal include evaluations of the public school district by the Department, development of a school district improvement plan, close monitoring of the implementation of the plan, and the provision of technical assistance as appropriate. NJQSAC also provides that in circumstances where a public school district fails to develop or implement an improvement plan as required, or other emergent circumstances warrant, the Department may seek partial or full intervention in the public school district to effect the changes necessary to build local capacity to provide a thorough and efficient education.

As noted in the language quoted above, in addition to implementing the applicable State statutes, Chapter 30 also implements the provisions of the "No Child Left Behind Act," 20 U.S.C.A. §§ 6301 to 6578, with respect to remedial actions to be taken by the states to ensure that school districts comply with the requirements of federal law. See 34 C.F.R. § 200.53(c).

Plaintiffs seek a wholesale restructuring of New Jersey's system of locally-based public schools prior to there having been an opportunity for the full implementation and operation of the statutory evaluative and remedial measures outlined above. Those measures were part of the reforms enacted or enhanced by SFRA. They are implemented by the State's educational officials, with the assistance of outside experts when necessary. Plaintiffs would have the Chancery Division shortcut SFRA's evaluative and remedial process by making its own determination of whether the defendant school districts have achieved compliance with the CCCS and to impose a dramatic remedy if that court determines they have not. They do so at a time when the Supreme Court has determined that "SFRA deserves the chance to prove in practice that, as designed, it satisfies the requirements of our constitution." Abbott XX, supra, 199 N.J. at 175.

Our reading of Abbott XX requires us to affirm the dismissal, without prejudice, of the plaintiffs' claims under the "thorough and efficient education" clause because they are premature. While plaintiffs may have the right to pursue their claims under the "thorough and efficient education" clause in an appropriate forum at some point in the future, they cannot do so until SFRA has had the opportunity to operate as required by Abbott XX. That period of operation will presumably supply a factual record of testing results and corresponding remedial measures at the local and State level to facilitate an evaluation of SFRA's performance in constitutional terms.

B.

We turn briefly to plaintiffs' equal protection arguments.

Although the Supreme Court in Robinson v. Cahill, supra, 62 N.J. at 482-501, found New Jersey's then existing system of providing a thorough and efficient public education to be unconstitutional, it declined to do so on either State or Federal equal protection grounds. See also Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971), affirmed, 404 U.S. 1027, 92 S. Ct. 707, 30 L.Ed. 2d 723 (1972) (upholding N.J.S.A. 18A:8-1 and -2 on a Fourteenth Amendment challenge). Consequently, we conclude that there are no viable equal protection claims and affirm their dismissal.

C.

Having determined that plaintiffs' claim under the "thorough and efficient education" clause is premature and that there are no viable claims under either Federal or State equal protection grounds, we affirm the dismissal of the claims pursuant to N.J.S.A. 10:6-2(c). That statute creates a vehicle to pursue enforcement of constitutional rights, it does not create independent rights. Consequently, we affirm the dismissal of plaintiffs' claims under that statute as well.

D.

In light of our decision, we need not reach the issue of whether the defendant school districts were proper parties defendant.

III.

In summary, we affirm the order on appeal for reasons somewhat different from those articulated by the General Equity judge. This is primarily the result of the Supreme Court's intervening decision in Abbott XX, which we interpret as precluding a challenge to the State's current school funding, evaluation, and remediation structure on "thorough and efficient education" clause grounds at this time.

Affirmed.


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