*1 ROBBIANI, RAYMOND INDIVIDUALLY AND AS PRESIDENT EDUCATION, OF THE BOARD OF FARMINGDALE ET AL., PLAINTIFFS-RESPONDENTS, BURKE, v. FRED G. COMMISSIONER OF AND THE EDUCATION STATE OF JERSEY, DEFENDANTS-APPELLANTS, NEW AND STAN NESS, ADVOCATE, LEY VAN C. PUBLIC DEFENDANT. Argued February July 31, 1978 Decided 1978.
Ms. Susan P. Gifts, General, Deputy Attorney argued (Mr. Hyland, Attorney cause William F. appellants Skillman, Mr. Jersey, General New attorney; Stephen General, Assistant Attorney counsel).
Mr. Steven A. Pardes argued cause for respondents Sim, Sinn, (Messrs. Gunning, Fitzsimmons, Serpentelli Mr. attorneys; Eugene D. Serpentelli, of counsel).
No appearance was made on 'behalf of the Public Advocate. The opinion of the court was delivered by P. J. A. D. (temporarily assigned). Conford, dispositive issue before constitutionality the Court is the vel non of N. J. S. 18A:33-5 which exempts mandatory schools, school lunch in the public N. J. S. A. 18A:33-4, those individual schools in which under of the enrolled pupils qualify economically free or reduced price Court, lunches. The Superior Chancery Division, held the deny equal protection *3 laws to otherwise school children in schools qualified from the At the time exempted mandatory program. same to court held the invalid be severable exemption provision from whole, the act as a the lunch thereby mandating pro- in in the The gram every school State. public Appellate Division affirmed in for unpublished opinion, essentially the reasons the trial orally by judge. expressed 53, L. c. School reads as follows: Act,
The Lunch Each sebool district shall make school lunch all available to chil- year dren enrolled in the district within 1 from the effective date of this act. Such lunches shall meet minimum nutritional standards the, by Department price established of Education. Free and reduced qualifying lunches shall be to all children offered under Statewide eligibility 18A:33-4], [N. criteria. J. 8. Any pupils school in which than less enrolled meet eligibility requirements price for a free reduced lunch shall be exempt provisions [IV. 8. of this act. J. A. 18A:33-5]. history
The legislative these provisions is of some relation in to significance equal protection inquiry whether in exemption Section 18A:33-5 bears some rational relationship the purpose and object of the legis- a whole. lation as Similar legislation had been proposed 386 1156 was Bill No. Assembly session. legislative lunch made school Act requiring
captioned, “[a]n contained all (emphasis suppled), children” available statement The accompanying any for schools. exemption no access to assure was to bill’s purpose noted The district.” every “all school children public again and did vote, a 67-2 the hill Assembly rejected by 19 Jan. Index A-38 (No. as 60 Leg. consider it a body. as Assembly to the was submitted 1974). The act present amendment, minor Bill With No. in the session. exemp- without an 67-5, by again it passed Assembly Education the Senate tion The bill then went provision. where, vote, disapproved. it was Committee a 3-2 by first for the inserting by committee amended the bill then A. 18A.-33-5.1 N. J. S. time the now codified as 28-6 and by in the amended, Senate As thus the bill passed July A-12 (No. Index Leg. Assembly by 64^0. 22, 1974). of the vested act
Responsibility implementation Education, delegated Commissioner of and has been Nutrition Programs him to the Bureau of Child of Education. Department Regulations concerning pro- reduced lunches found in N. free and are viding price A. C. survey 6:79-l.l et Each school an annual seq. conducts its eligible to determine which enrolled students G. such under standards. N. J. A. lunches bureau-established 6:79-1.4. undertaken,
Once lunch program is local school districts *4 are the at a by reimbursed State variable rate each lunch served, the rate being by determined both the concentration and per school whether a lunch is served full free or reduced or price. Eederal funds available exemption expenditures 1The was estimated to reduce State under by $500,000. Statement, the act some See Senate Edue. Comm. As sembly (May 13, 1974). Bill No. to reimburse the the and districts for cost purchase 75% no There installation of as is refrigerators. such equipment for salaries of local funding personnel imple- involved mentation a lunch when reimburse- State program except ment lunches costs; exceeds neither is there reimbursement for construction of facilities. necessary physical
The instant action a number individuals brought was by in their and capacities both school board presidents as municipal with themselves. taxpayers, together the boards that the complaint charged exemption provision laws, law denied of the (1) protection plaintiffs equal rational being arbitrary relationship without purpose legislation; school lunch (2) “contravene[d] thorough and efficient education mandated the Consti- * * *”; tution on an undue (3) burden “create[d] were plaintiffs.” injunction An and a declaratory judgment Defendants and the sought. of Education Commissioner State filed an answer and counterclaim declaration seeking that the act valid and an order compelling was compliance it with of education other non- by plaintiffs boards school districts. complying
The Public Advocate was granted to intervene leave as a He originally defendant. took the position that the statute Later he urged was valid. if exemption provision was held invalid should be deemed severable. On the to the Division he appeal Appellate argued: (a) violated the 14th Amendment rights the chil- schools; dren in the exempted and (b) the exemption pro- vision of the act is severable. On the appeal this Court the Public Advocate position eschews any matter, in the that he that if the explaining fears decision of Appellate Division affirmed new legislation apt adopted on cutting back school lunches to needy pupils to a greater extent than the act. present
At outset trial herein, the trial court granted summary judgment defendants as against plaintiff on that, boards as ground instrumentalities of *5 challenge legislation. State, standing no they had trial the After that action. taken from has been
No appeal one to he the action construing a decision court rendered children school needy on behalf by the taxpayer plaintiffs under exemption.2 lunches would be deprived who 5% was without rational that the The court concluded would children because some act of the basis in purpose and some their need regardless deprived a given in initiate a lunch program forced to would be schools aof shift because following year exempted he year yet that the school in children needy the percentage and, invalid, holding the exemption held therefore It year. law to severable, require declared provision the invalid above, As noted school district. in every program a lunch We reasoning. on the same affirmed Division Appellate of defendants. the petition on certification granted (1977). J. 520 from various testimony At adduced the trial plaintiffs that relatively the effect some school officials to district would criterion districts the operation small 5% and the corre- of a lunch compel the institution therefor notwithstand- purchase equipment need sponding fluctuate might that the percentage subsequently fact ing and above the In at least one district with below level. more than one threshold resulted school the percentage exempt number of larger attending than However, school. because of State complying and federal financial assistance toward school lunch pro- local grams, tax rates few by only would be increased doing- ignored plaintiffs’ 2In so it the fact that ultimate aim abrogate entirety by arguing was to the statute the invalid n exempion provision was non-severable from the statute. Moreover complaint charged plaintiffs (not it was the pupils) equal protection rights whose were violated the statute. *6 cents on such programs the dollar by implementation district.3 any
I The first question engaging our attention is whether there anyone the case to raise the having standing question denial needy children pro of equal tection of the It laws. seems cleaT that as tax plaintiffs, payers seeking to invalidate entire lunch not do program, represent the interests of children, such even they though attack the exemption a provision as toward their step ultimate position the case. It is therefore doubtful these plaintiffs have standing raise equal protection claims of children. an individual Normally will be permitted to seek only Barrows judicial vindication of own his rights. Jackson, 346 U. S. 73 S. 97 L. Ct. Ed. 1586 249, 1031, (1953); State v. Norflett, 67 N. J. 276 268, (1975).4
However, we
need
resolve the matter of standing
here because we find that
the activity of the Public Advocate
3According
by defendants,
2,459
to an affidavit submitted
schools
operating
April
exempt
(as
5, 1976),
in the State
432 schools are
voluntarily provide
program.
under the act and do>not
a lunch
needy
3,903.
total
children in such schools numbers
The total
provide
needy
required
number
enrolled in
a
children
schools
289,164.
8,487 needy
lunch
An
under the act is
additional
voluntarily given
exempt
schools
the act.
percentage
being
all
Thus the
children in the State not
afforded lunch is 1.35%.
4Exceptions to this rule have been invoked in some situations where
party alleges
injury
deprives
necessarily
that his own
parties
third
rights. See,
g.,
of their constitutional
Jackson,
e.
supra,
Barrows v.
257,
(enforcing
in the case suffices to
us the interests of the
place before
Eurthermore, we conclude
excluded school children.
dispute
in the resolution of
interest
public
strong
Levine,
Busik v.
of the merits.
warrants our consideration
1106,
414 U. S.
N. J.
363-364
dism.
app.
(1973),
S. Ct.
II merits of the protection address the equal We thus defend the Defendants attack as outlined above. *7 While the federal rationale. following on the provision the, school to ultimately provision look State statutes federal statutes, and the children, for all both needy lunches in flexibility some contemplate implementing regulations, 1970, in the amended .to extent of As coverage. relation *** be given “first that priority federal statute provided 42 U. S. children” neediest to the to free meals providing also cite defendants the C. In 1758. this connection § “priority F. directing 7 C. R. 210.4a (b) (5) (ii) § children,” needy in concentration of schools areas with high Robinson, Davis v. 346 as as well cases as such supportive F. 847, 857 Justice Mount Supp. R. (D. 1972); I. v. Ed., Y. 1252, Vernon Bd. 351 F. Supp. 1262 D. N. (S. Richmond Rts. v. 525 Org. 1972); Snodgrass, Welfare defendants, 197, F. 201 — 205 Cir. Thus, 2d (9 1975). argue the of the as the may pro State statute be stated purpose for subject vision of low cost lunches children generally mandatory an allowance for minimal local from exemptions object is to assure coverage.5 that, constraints, lunches will be with due for fiscal regard available in areas of concentration of need. made greatest is to 5It be noted no that contention bas been made this case comport regu that our statute does the with federal statutes or lations.
391 In under short, the defendants that statute contend review passes standpoint muster from an protection equal that the mandatory category exempted par- schools bears ticipation N. J. A. 18A :33-5 program under 8. a rational act, being relationship to purpose conceived school as the low provision of cost lunches schools with generally, some fiscal as ito leeway where It the concentration children is least. case gave notable that neither of courts in the lower consideration for classification stated justification made that under statute. It apparent equally view of the choice lower in this the State has the courts case in the only of mandatory every State or at all. been State none has not argued It not, chose, could if it make lunch programs decline to mandatory any school.
In approaching equal protection issue here implicated we see no reason to from the depart traditional criterion i.e., rationality classification, whether “any there is conceivable state facts which would afford reasonable Glassboro, WHYY Inc. N. support 6, 50 [it].” rev’d on other Ct. (1967) U. S. S. grounds 117, Harrison, 21 L. Ed. Two 2d (1968); Guys from, Furman, Inc. v. 32 N. J. 199, 218 J. Restaurant (1960); Holderman, Assn. v. 24 N. J. The United (1957). *8 Court States standard Supreme consistently applied has this in recent social-welfare years appraising legislation protection Department Idaho equal validity. Employment Smith, v. 327, 434 U. 98 54 100, 324, S. Ct. L. Ed. 2d S. 327 v. (1977); Hackney, 549, 406 U. 92 535, S. Jefferson 1724, Narmet, S. Ct. L. 32 Ed. 285 2d (1972); Lindsey v. 74, 405 U. S. 92 56, S. Ct. 31 Ed. 862, L. (1972); 2d 36 Williams, Dandridge v. 397 471, U. Ct. 485-486, S. 90 S. 1153, 25 L. Ed. 2d 491 (1970). The rational basis test was an applied to attack upon the implementation school lunch v. 967, 431 F. 2d program Briggs Kerrigan, 968-969 1970) Cir. whether (1 (upheld disparity based upon
892 but facilities), had installed kitchen school previously cf. Ed., F. Supp. supra Justice v. Mount Vernon (351 Bd. of 1261-1262). in the Court has however, this contexts,
In particular
standard
deter
a
recent
“means-focused”
past applied
e.,
is an appro
i.
“whether there
equal
mining
protection;
by
interest
furthered
suitably
priate governmental
Ringgold,
treatment”;
Collingswood
Bor.
v.
differential
see
96
901,
N. J.
426 U. S.
350,
dism.
(1975) app.
Assn.
Taxpayers
S. Ct.
We are satisfied deny does before us statute basis or means-focused (to The' financial savings children. protection equal $500,000 amount about from the to State are also to the 1974). savings exempted There (as local This, as a of deference degree districts. as well interest” an autonomy, “appropriate governmental constitutes be a limitation some reasonably by served legislative the time at least for being. sort on the program, a of two schools the asserted anomaly toAs number of needy pupils a smaller absolute district single while mandatory may one school activate not, merely is might another school number in larger rather of schools legislative selection consequence units for quantitative measurement possible other than That choice not demonstrated concentration. needy pupil one for In the stated purpose. be unreasonable clearly terms, not fatal “that the legislative protection equal another, more achieved fully more objective might N. J. Restaurant Assn. v. Holder classification.” expansive “* * * man, may N. J. at 300). Legislature supra (24 [T]he *9 recognize degrees of harm and hit the evil where it is most felt.” Ilid.
We have no in the difficulty criterion finding percentage a reasonable one and the of the schools resulting exemption with the lowest concentration of proportionate needy pupils a means of recognizing State’s motive which economy the is rationally related the to general purposes objects legislation. the v. Compare Briggs Kerrigan, F. supra 2d (431 967).
Ill Plaintiffs made an to effect alternative the argument the the statutory exemption burden “inequitably [s] taxpayers of plaintiff school districts violation of clauses equal protection state and federal consti tutions.” The contention that unreasonable burdens placed on “small and Plaintiffs districts. poorer” explain: * * to, spend greater per capita The small districts will much have large amounts than build and districts maintain lunchroom facili- poor districts, high ties. In the where there will number of eligible price lunches, taxpayers for free reduced will have, provide money lunches, for those while the wealthier districts, lunches, pay where most children will the tax- their hardly payers system financing will be burdened at all. equitable, programs only Jersey in New would be if expenses equal basis, allocated on an statewide rather than were disproportionate inequitable taxpayers having a burden on certain districts. support
Plaintiffs’ only purported assertions thus Cahill, of a dictum in Robinson consists advanced 62 N. J. interlocutory and an decision of (1973), the Appellate State, Bonnet v. N. J. Division Super. (1974). Robinson is to the allusion, The reference Court’s in that have not whether, “a ease, parties projected, question from the apart equal protection guarantee, there is of local implicit premise concept government *10 394 through Its fiscal may responsibility State not distribute N. 62 J. will result.”
that vehicle if substantial inequality at to observe suffice, 500. It purposes, will present Robinson, such any of not, we did in assume existence nor of local fiscal principle participa reach the issue whether Indeed, tion in principle. educational costs violated such any rule home we if pointed to the “convulsive implications well as as vulnerable such any principle upon” [were] conse solutions” judicial difficulties of of management “the Robinson in Id. decided Nothing 501. quent thereupon. v. situation. Cahill in the present aid to plaintiffs Bonnet n supra, case, As to reliance plaintiffs’ upon Appellate the- by there rendered decision interlocutory — motion to dismiss a denial of Division an affirmance of aby a claim—was followed for failure to state complaint trial, affirmance and an after favor judgment defendants State*, N. J. v. Bonnet thereof Division. by Appellate reported Div. Super. 1978), affirming judgment (App. complaint In that case the J. Super. (1976). distributing Jersey system New alleged present burdens, pay fiscal counties are whereby required costs, denied of certain and welfare part judiciary families low-income black residents and plaintiff taxpayers, The con- process. and due of the laws protection equal that, whether on rejected tention was the ground to be denominated were properly the functions question could nature, the Legislature than local in as state rather local govern- part by to be borne in them delegate properly Bonnet Thus N. J. at 528. Super, mental bodies. 155 of the plaintiffs no for the argument furnishes support of the same basically it is here since under consideration case. in that the Court rejected by advanced and tenor as that maintain- burden of Insofar as asserted inequality concerned, ultimately upheld Court schools local ing Education the Public School constitutionality the facial Cahill, 69 N. Robinson 1975, c. 212). (L. Act of 1975 to a substantial rely continues That statute 449 (1976). in Robin- holding extent on local of schools. The financing scheme statutory son is therefore consistent with entirely unreimbursed on local school districts imposition maintenance cost of (by sources) state and federal specific taxation local property school lunch through programs any such taxpayer No individual assisted State aid. complaint flowing district has constitutional legitimate from the statute.
IV that herein above, charged As filed noted the complaint thorough the “contravene statutory exemption operated Constitution, pre- by mandated and efficient education” 1. How- IV, VIII, par. N. Art. J. Const. sumably (1947) § argument, their ever, protection although advancing equal lunch pro- the school that brief makes the plaintiffs’ point pursuant was Legislature gram adopted educa- and efficient mandate for a thorough constitutional contention any is devoid of tional the brief system, is invalid sub judice of the statute exemption provision The education. system a and efficient thorough as negating advanced, are of contention, a were of such implications unjustified are clearly such serious that we consequence record motion, sparse on the it on our own addressing adversarial briefing us, and without adequate before do not address question. issue. We therefore valid. wholly We conclude the is statute reversed. Judgment J. I en- would affirm the (dissenting part).
Sullivan, tire N. J. 8. A. judgment. 18A:33-4 establishes a school “all just children but for chil- needy dren in the enrolled district.”1 the addi- Needy get passed advantage 1The statute was to take of federal assistance provided Act, under the National School Lunch 42 U. A. § S. C. tional benefit with the same lunches either being provided free of cost at reduced The benefits kind prices. this all program to children cannot be disputed. 18A:33-5,
On score, of N. J. 8. the provision which a if less than from act exempts entirely 5% its are Mot pupils only does not sense. needy, make school, suf- children, but also children in all other such fer a I with deprivation of agree this worthwhile program. is ar- plainly trial judge provision invalid from the rest bitrary, and is severable statute. I would affirm.
Justice in this dissent. joins Pashman P J., While I wholeheartedly endorse dissenting. ashman, 18A:33-4, N. J. 8. A. I majority’s validation dissent below of the decisions parts its refusal affirm those ex- which strike S. A. statute’s down 18A:33-5. That emption than of the pupils of schools where less sufficiently needy requirements to meet the eligibility free approach or reduced lunch is blunderbuss price when irrational economy. statutory exception plainly scrutinized in the of the overall the school light goal *12 — Moreover, lunch of children.1 program needy the feeding it face regulation, flies federal applicable seq., supplements et and declares to be thereto. This act being policy Congress safeguard of of “to health well * * * State, grants- assisting through the Nation’s children * * * establishment, means, providing in-aid and other for nonprofit pro- maintenance, operation expansion school-lunch grams.” scope following Innch school 1The chart indicates the wide eligible program Nearly in our students in this State. 40% many part program. Presumably, others in the lunch schools take partici buy bring Of milk dessert. own lunch their and/or eligible price nearly students, pating reduced are free of 50% comprises group of the total number over This lunches. program. part eligible the school take students C. F. R. which 210.5a(b) (5) (ii), directs the priority § the school lunch to “schools in areas with a high concentration of children.”
Under formula in N. J. S. A. employed 18A:33~5, a 1,000 with students 49 needy children need not supply free or price reduced lunches while school of 100 students with 5 such children must lunches.2 The supply February October 1977 October 1977 Type Eligible Participating Participating Lunch Students Students Students 1,044,203 280,931 Paid 276,628 52,789 30,935 31,440 Reduced 285,204 236,743 Free 242,922 1,382,196 548,609 550,990 Total The chart below shows how small cost to the State is when com- pared subsidy. to the federal complaint interesting figures 2Plaintiff’s lists some which resulted Education, surveys by following several Boards of chart flagrant *13 the actual number of children is substantial. majority’s of the fallacy the
above demonstrates example re- a rational “bears :33-5 N. J. 8. 18A that reasoning conceived being act, that of the purpose to the lationship children lunches cost of low as the provision where the to schools as leeway fiscal with some generally, ante at 391. is least.” See children concentration act, the purpose To above stated reasonably meet the numbers actual with to deal would have statutory exemption mere percentages. not pupils and eligible majority rational basis test indulged The pure The in this context. inappropriate right singularly is fundamental in New and efficient education thorough VIII, N. J. Const. Art. reads Jersey. §4, par. (1947), follows: as Legislature provide support of shall for the maintenance public system thorough in- efficient of free schools ages all in the of five children State between
struction years, added) eighteen (emphasis which re unreasonably differentiation Surely any legislative learn is inherently duces of some opportunity Even rationale of United States suspect. Supreme in San Antonio School District v. Court Rodriquez, 1278, 36 Ed. U. S. 93 S. Ct. L. 2d 16 where it (1973), was that do not expenditures held differences per-pupil establish an of educational necessarily inequality opportunity, would dictate There, affirmance this case. Justice majority Powell’s noted opinion that support charge system against [I]n of their discriminates “poor,” appellees no have made effort demonstrate operates peculiar disadvantage, any fairly to the class definable indigent, composed persons as incomes are as whose beneath Indeed, any designated poverty level. there is reason to believe that poorest necessarily poorest families clustered in property districts. 22-23, [411 S.U. at 93 S. Ct. at Ed. 2d 36-37] 36 L. *14 in N. The classification J. 8. 18A:33-5 is tailored precisely in impact upon poor children schools where they com a prise The minority. insidiousness all deprivation is more the patent fortunate, context. More this well-nour who up ished classmates make the vast of majority the stu dent at will body these schools an unfair have advantage academic endeavors over poor these children who qualify free or reduced price lunches but denied them because of their insufficient number.
I do not believe that
the
provision can withstand
the
test
Ass’n
Taxpayer
Weymouth
v.
Tp. Weymouth
249,
71 N. J.
Tp.,
281-287
cert. den.
(1976),
977,
430 U. S.
97 S. Ct.
L. Ed. 2d 373
for the
(1977)
reasonable
ness of legislative classifications. The
has
majority
glossed
over the
Cahill,
scale
sliding
approach
Robinson v.
which
N. J. 473
cert.
(1973)
den. 414 U. S.
tervention under either the due may only delay clauses divert a court issue or meritorious Ultimately, weigh consideration it. court the nature must aganist apparent public justification, restraint or the denial arbitrary. process, decide whether the State action is In if sensibly upon require, may circumstances so the State court call public to demonstrate of a sufficient need for re existence * * * or the straint denial. emphasis 492; [62 added] at * * * n by important personal right govern- [w]here affected action, requires public authority mental Court often greater traditionally required “public demonstrate need” than is construing Specifically, must federal constitution. it be shown suitably “appropriate governmental there is an interest furthered [citations omitted] Even under more the differential treatment.” Jersey always required approaches, Eew has real traditional relationship govern- between the and the substantial classification serves, purportedly mental interest which [citations omitted] emphasis 286-287; N. J. added] [71 funds
The need public saving nearly for a limited so as is the of these unfortunate compelling need for all which will them help reasonable societal assistance have a fair chance in life. Robinson excuse did not prevail scarce resources Cahill, In Robinson we should not succeed here. supra, and
held that required per-pupil expenditures amount *15 a for provide and efficient education each child was thorough a minimal for requirement all children. trial court had The found the demand not been constitutional met input discrepancies per pupil. and did on so the basis of in dollar agree. problem deal in We We with the those terms because dollar input plainly relevant is and because we been shown no other have measuring compliance
viable criterion the constitutional with satis- mandate. The constitutional mandate could not be said to be suppose proposition unlikely were that fied unless to we performance happens of dollar con- lowest level coincide with the to beyond mandate that all level stitutional and efforts lowest are obliged to local than attributable decisions do more the State was to do. [62 515-516] J. at Judge suggestion I with Frankel’s Furthermore, agree 351 F. D. Education, Supp. 1252 (S. Board in Justice v. price free or reduced lunches that N. Y. the denial 1972), would deny children eligible in schools which have some in dis other the same where schools equal protection them Act, U. S. Lunch C. in National School trict take part children. feed situated seq., similarly 1751 et § matter, fitting it is as a nonconstitutional this is determined While rumblings recognize in near back- that constitutional might get arrangements ground. if the test of Mount Vernon’s They might only protection equal . . it is . but fair issue. were Glaring question say one of substance. in- would be that single dispensation a equalities necessities within elemental in the — — surely trigger single arresting indeed, city families within permissible The ex- thoughts discriminations. limits of about — — budgetary strains planation available about “facilities” enough, scarcely compelling. but it is might rational to seem turn out everyone's depressing to nourish to hnoro that desire at is best It — may upon country children such obstacles in a that has founder pursuits unpaaifie atolls, knotvn how to adults murderous on feed jungles, deserts, sea, space. reaching on at them Without plaintiffs’ may decision, recognize we claims constitutional subject statutory are neither frivolous nor immaterial on in- terpretation. S.upp. 1261-1262; emphasis added; F. [351 omitted] footnote In I this case have reached the equal issue and protection have found is no reason deny there re- compelling made duced free lunch to child due to price any eligible of his or her poverty family. The in the majority takes comfort fact that small only unfed. ante at 3. See n. percentage go This fact if little relevance a child’s learn ability to directly to his not related and malnu suffering hunger trition, as it undeniably is. Court hides tradi behind tional views of restraint judicial the question of avoiding whether a minimal being fed amount nutritional food is required for one to have reasonable to learn. I opportunity for one do need brief and oral appellate argument to *16 me persuade that children do learn hungry very not well. See Ed., Justice v. Mount Vernon Bd. F. supra, Supp, at Food, 1257; Final White House Report, on Nutrition Conf. Justice, and Health at 46. In supra, E'rankel Judge made the following pertinent observation: distinguished scholar-scientists, submitting unquestioned Two affi- plaintiffs us, for davits make vivid before what we all know when they report hunger listlessness, that the miseries lead to irritabil- ity, ills, generally ability profit other and a emotional diminished to opportunities. from either education or world’s other Supp. 1257; emphasis [351 F. at added] a minimally The need balanced diet is a clearly necessity for concentration and to ability learn. I would proper all that children the hold to guaranteeing opportunity be meal at per least one balanced is day served minimal one of the elements a as and required thorough me, this self-evident. To is for all children. efficient education most The scheme far to ensure statutory goes benefit; invidious denial thereof will receive this its children unreasonable. totally of those children is to a small minority economic from a Moreover, purely at this looking problem is that the inevitable conclusion view leads to the a living to earning a Education prerequisite irrational. aWhile society. American membership and meaningful for not may mandatory requirement college degree of modern the workings an awareness of life, intelligent good math reading, writing the fundamentals of society to a successful preconditions are minimum 'certainly ematics Cahill, we that a held supra, Robinson v. In today. career “educa represented education and efficient thorough contemporary needed in the which is tional opportunity as a a citizen and role as child his setting equip Hungry 62 N. at 515. market.” labor competitor opportunity. such an children are denied “pay fact that this is a eyes closes its to the majority The later” some now more Most hungry ox pay proposition. who are not to achieve permitted thorough children and will be education will succeed as adults efficient the vicious which exists cycle poverty condemned to society The cost to country. long-term providing who have been derailed the track those unfortunates with will far life’s exceed successfully coping challenges I prefer this lunch would program. cost providing a fair chance to succeed through less fortunate give an education. To me a opportunity gain meaningful Jerseyan. learn New birthright every opportunity A. Moreover, with the courts below that N. J. S. I agree N. J. 18A:33-5 is severable from S. 18A:33-4. c. Act, Lunch L. S3 failed by mere fact that School Education make it the Senate Com through a 3-2 vote to *17 section was not dis- until added is exemption mittee recent has been for courts to years trend in positive. valid act has an invalid where generally uphold legislation
403 provision or Mitchell v. Mobile 313 exception. County, See 172, So. 2d 175 In re Ct. (Ala. Sup. 1975); Kapperman, Cal. 542, 11 3d 114 662 97, 657, Cal. 522 P. 2d Rptr. Watkins, 185, State v. (1974); 135, 259 S. C. 191 S. E. 2d Co., 144 Carr v. (1972); Campbell Soup 124 J.N. Super. 382, 388 1973); Div. Percival v. (App. City Philadelphia, 12 Pa. Cmwlth. A. 628, 667, 317 672-674 2d Cmwlth. (Pa. 1974), 308, Ct. on 464 vacated other Pa. 346 grounds, Moreover, 2d 754 (1975). less reluctance “[t]here reach . this kind of . when result . the repugnant limiting of amendment provision 'by way was added the course during of enactment the fact because of the bill was that originally it introduced without furnishes some for the view support that the limitation not essential to offending successful Sutherland, operation Statutory Con legislation.” struction, Carr v. 1973); Campbell 44.13 at 359 ed. (Sands § Alaska, Co., Soup Lynden also v. supra. Transport, See Inc. 532 P. 700, 1975); 2d Ct. Hayes (Alaska Sup. Court County, 216, San Bernardino Superior Cal. 3d Rptr. 1137, 98 Cal. 490 P. 449, 453, (Cal. 2d 1971), 32 L. 406 U. S. Ct. Ed. dismissed S. 2d app. 328 (1972).
I can only conclude that had the been Legislature choose, forced to in the final analysis, between requiring lunch for all children or needy children, no would have all of fed those children. The trial was court correct in concluding was purpose behind the Act of children and that feeding nega- notwithstanding Senate vote, tive Education Committee enactment without section would have occurred. Moreover, has announced a Legislature general policy any provi- sion in Title 18A be should severable in preference per- a whole Act to fall. mitting any provision any section, article, If chapter subarticle, or title any adjudged by competent jurisdic- shall law be court of ineffective, tion to impair such determination shall not affect or remaining provisions opera- thereof but shall be confined in its *18 controversy provisions directly in which in a
tion to involved rendered. said determination shall have been A. :76-2] J. S. 18A IN. iu full and giv© courts I affirm lower Thus, would behind salutary intent all benefit would be consistent N. J. A. 18A :33-4. This disposition S. would far more than the statute object with the principal totally deny which would whole, act as a invalidating the Brands Distiller In Legislature. the intent of the Affiliated Sills, held that we 342, N. 345 (1972), J. Corp. v. That intent. legislative is a question “[s^everability of whether ob on the basis be determined intent must im without substantial feature can be excised jectionable Borough Inganamort statute.” See pairment Lee, “Courts will enforce 412, 72 N. J. Fort (1977). and independent invalid portion where the severability within itself.” act complete forms remaining portion A. 18A S. :33-5 I at 423. find Inganamort, supra N. J. S. Act Lunch and from the School is severable a fully independent alone as standing :33-4 18A is capable statute. J., and dissenting part part. concurring
Schreiber, in this case are the of school rights involved Critically who, for free children, though eligible reduced-price those are lunches, they lunches because deprived number they in schools which less than enrolled no for the regard of the total enrollment. has “Hunger Richmond Organization v. Rights school attended.” Welfare 525 F. 2d Before Snodgrass, (9th 1975). Cir. classification, Court explore such should approving VIII, under Art. duty constitutional par. Legislature’s § New Constitution which that: Jersey 1 of the directs provide support Legislature shall the maintenance system thorough public of free schools and efficient instruc- ages of all the children this State between of five tion supplied] years. [Emphasis .eighteen When in 1974 the N. J. A. Legislature passed 8. 18A:33-4 providing that each school district make shall free reduced-price lunches all available to children qualifying under criteria, statewide it must have eligibility been aware *19 of factors, three the (1) federal funds which be would available to assist in the the field financing, (2) experience of the federal and program, (3) constitutional obligation its ¡children to the- school in this State.
The Legislature found 1946 that in undoubtedly Congress enacted the National School Lunch “to Act safeguard health and S. of the 42 U. well-being Nation’s children.” C. A. et 1751 seq. scheme- of -contemplated the Act § a fund meet matching with states which chose to program minimum nutritional of school children. requirements After 20 years Nutri the Child experience Congress passed et of 42 U. C. A. in which it 1966, tion Act S. 1771 seq., § food and “the demonstrated between recognized relationship of and develop nutrition and children good capacity learn, on of cumulative expe successful years based ** rience under the national school S. C. A. understanding U. 1771. Congressional § is nutrition for importance adequate further comment made Yiee reflected in following Mondale on (then Senator) during President deliberations 1972 amendments to the National School Lunch Act: nutrition,- If we bad to make a eboice between textbooks and it forego would be wiser tbe textbooks and the children feed so- that they capable learning. Cong. (1970)] would be [116 Rec. 4409 It is wonder then that small our Legislature recognized an importance assuring every needy school child at least opportunity to served one- day balanced meal per at Furthermore, school. in in asserting requirement the public school educational .the program, Legislature could not have been unaware of its 'Constitutional responsi- In bility. 1973 Chief Justice Weintraub had reminded all Cahill, N. cert. U. S. 473, in Robinson v. den. 414 I), 976, S. Ct. Ed. (1973) (Robinson 38 L. 2d “to maintain and support it obligation was the State’s schools,” 62 free efficient system public and thorough which “must define J. at was State and that it Id. at in way obligation.” some discernible educational 519. of fac- multitude
We have previously acknowledged that tors in addition to dollars expended per pupil — few, play indi to name result a vital role the educational techniques compensatory group disadvantages, use vidual availability handicapped, disadvantaged variation teaching areas, methods qualified effectiveness teachers different system, every professionalism thereof, level and evaluation discipline, authority curricula, and ade meaningful exercise funding policy while quacy goals Hence level. fixed at the of overall overriding consideration, pragmatic undeniable problem, solu constitutional whatever educational answer to the *20 Cahill, 133, 141 n. 3 ultimately required. N. 69 [Robinson v. tion IV) (Robinson (1975) ] are not and education thorough of a efficient The components secondary century, static. Eor the late nineteenth example, was available and for that reason was not schooling generally a and of system not deemed an efficient thorough attribute Ashworth, 57 N. J. L. Landis See v. public schooling. Ct. a school education is 1895). Today, (Sup. high a educational public part thorough and integral efficient Chief Justice Weintraub out system. pointed developing this of a and he wrote: aspect thorough system efficient when guarantee The Constitution’s must be understood to embrace that is needed contemporary setting opportunity educational which the competitor equip and as a to a child for his role as citizen the I, supra, 515] N. [Robinson labor market. J. at We when may presume that Legislature, cognizant the empirical data hunger that nutrition di- proper are related to a rectly child’s educational enacted opportunity, N. J. 3. A. :33-4, 18A which that free reduced- required price school lunches be to all children qualified available who under statewide criteria, it was eligibility acknowledging another element in the definition of a efficient thorough and system of instruction.
However, that system instruction must be made avail- able to all on the same basis. It is Chief significant Justice in Robinson 1 quoted approvingly the following Ashworth, Landis language supra, to the referring constitutional requirement: purpose impose legislature providing duty Its was to on for thorough system schools, capable affording and efficient of free every ordinary necessary
to child such instruction as fit citizenship; provision make, duties and such school laws would our properly executed, securing rights if with the view of the common tendering peculiar any. advantages of all J. L. [57 before (quoted 514) ; emphasis supplied] at 62 N. J. at only educational attribute to Provision of indispensable this in which more those attend schools pupils who for a free or reduced-price students are eligible that the system conflicts with the constitutional mandate "all” established children. that, states although majority correctly complaint contravened the alleged thorough % Constitution, has
efficient in our issue not requirement However, been nor briefed fully developed. the record consequences the excluded children so serious that we would be remiss indeed if we did face up to the issue. I would remand the cause to enable Accordingly, parties whatever on present relevant they evidence desire *21 question.
For reversal —Chief Justices Clieeord Justice Hughes, and Handler Coneord —4. Judge
For and Pashman —-2. Sullivan affirmance—Justices For remandment —Justice Schreiber —1. notes some the most differences for the 1975-1976 school year eligible exempted between numbers of students in covered and schools. required provide price *Denotes school reduced or free lunches. exempted by two The other schools were S. A. 18A :33-5. points apparent. present First, Two disproportionally scheme impacts Second, many on small schools. large eases schools with compelled numbers of provide undernourished children are no.t price lunches them at a charge, reduced though free of even hungry