On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-137-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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. ...