Robinson v. Cahill

ROBINSON, KENNETH AN BY PARENT INFANT HIS AND LITEM, ROBINSON, GUARDIAN AD ERNESTINE ET AL. PLAINTIFFS-RESPONDENTS, CAHILL, T. v. WILLIAM JERSEY, OF GOVERNOR THE STATE OF NEW ET AL. DEFEND ANTS-APPELLANTS. Argued January 30, November 45b Eaden,

Mr. Lewis B. Council Special Governor, the cause for argued appellant Governor of the State of Kaden, brief; New of counsel on the Ms. Jersey. (Mr. and Winkler, Judith Nallin Mr. Arthur Assistant Counsel and Governor, to the on brief). Skillman, General, argued Stephen Attorney

Mr. Assistant New of of Jer- cause for Treasurer the State appellants New Jersey, Commissioner of Education of the State of sey, of New Education, and State Jersey New State Board of of New William F. General Hyland, Attorney Jersey (Mr. Skillman, brief; of counsel and Jersey, attorney; Mr. on Sommer, General, Attorney brief). on the Deputy Ms. Jane Presi- appellants David cause Goldberg argued Mr. the Senate New Jersey of of Senate the State dent of the Warren, Goldberg and Jersey. State of New (Messrs. Berman, attorneys).

Mr. Jack Borrus the cause appellants Speaker argued Jersey New Assembly of the General Jersey (Messrs. of the State New Assembly the General Borrus, Borrus, counsel; Goldin and Mr. Foley, attorneys; Mr. David M. Foley, on brief). Buvoldt, for respon- Jr. the cause argued Harold

Mr. Buvoldt, Special attorneys Buvoldt (Messrs. dents McGill, L. Counsel Mr. Dennis Corporation Counsel Jr., Blatz, Corpora- Frank Mr. H. Jersey City, City LaCava, Plainfield, Joseph Mr. City Counsel of the tion Mr. Paterson, and Julius City Counsel of the Corporation Fielo, City Orange). Counsel of the of East Corporation Lubell, Mr. David G. of Tractenberg and Paul L.

Mr. for cause amici curiae Education bar, York argued New National for the Association Chapter, Newark Committee, Liber- and American Civil People of Colored Advancement Lubell, and Tractenberg, New Jersey (Messrs. of Union ties Askin, Mr. on Stephen Eisdorfer, attorneys; Frank brief).

Mr. William Zaino the cause for amicus curiae argued New Boards Association. Jersey School Ruhlman,

Mr. B. Jr. for amicus Cassel cause argued curiae Ruhlman Jersey New Education Association (Messrs. Butrym, attorneys). T. behalf amici Berry Andrew the cause on of argued

Mr. curiae of and the Boards of Educa- Livingston Township Montclair, of Berkeley tion of the School Districts Heights, Providence, Rumson, New Sandyston- Chatham Township, Belmar, Millburn, Summit and Avon-by-the-Sea, Walpack, City Mendham and the of Englewood, Township, Englewood Mc- and the Mayor (Messrs. Carlstadt Borough Carter and amici English, for curiae attorneys Township and the Boards Livingston of Education of the School Dis- Montclair, tricts of Berkeley Heights, Township, Chatham New Providence, Rumson, Summit Sandyston-Walpack, Millburn; Mr. brief; Berry and on counsel Mr. Peter Shebell, Jr., E. Belmar; for attorney Avon-by-the-Sea and Wittman, Mr. Walter T. curiae attorney amicus Board of Education of City Arthur Lese- Englewood; Mr. W. mann, attorney for amicus curiae City Englewood; and, Mills, Doyle, Messrs. JIoclc Murphy, attorneys amicus curiae Board of Education of Mend- Township ; Paul ham Mr. 8. Barbire filed brief on amicus behalf of curiae Mayor the Borough of Carlstadt).

Mr. Robert Pickett T. and Mr. David C. of the Illi- Long nois bar argued the cause for amicus curiae The Education Reform Project of The Greater Newark Urban Coalition (Messrs. Pickett and Jennings, Pickett, attorneys; Mr. counsel and brief; on Mr. Long, on the brief).

Mr. Morton Feldman submitted memorandum on behalf of amici curiae Pleasantville Taxpayers Association, Wey-

454 Citi- of Concerned Association, Association

mouth Taxpaj^ers Cramer. and. Gilbert zens of Vineland litiga of this history protracted The earlier Pee Curiam. re need It reports.1 in our elsewhere tion appears into was enacted 29, 1D75, there September here. On stated Act Education Public School known as the a law statute et A. seq.). N. J. 8. 18A:7A-1 212, 1975, L. 1975, c. addressed motions were its following passage, Immediately the cause. of different parties a number by this Court all im these motions by forms of relief sought The various Act or was not the issue: was underlying one plicated the motions. 1975 We hesitated entertain constitutional? was of this issue underlying No lower court determination us had had no review; parties opportunity before a at which to avail an evidentiary hearing themselves of made; a some record could be us savour judgment by might however, considerations, of an advisory what These opinion. were felt to be desirability reaching outweighed decision as to the enactment speedy constitutionality —- at least when would examined We facially2 thought Super. reported original opinion 1judge N. J. 118 Botter’s (Law supplemented opinion 1972) and is further 223 Div. (Law 1972). opinions Super. The and or N. J. Div. in 119 40 original grant Court, our of cer handed down after ders this tification, (1973) (Robinson I); N. N. J. J. follow: 62 473 63 II) ; (1975) (Robinson III) (1973) (Robinson J. 35 N. IV). (1975) (Robinson N. and 69 J. ruling upon urged facial constitu- to defer even 2We were promulgation tionality of administrative Act until after promulgated. regulations. N. A. G. 6:8- These have now been they 1.1, seq., January 1976). (approved et Whether are valid adequate later determination no event must await directly constitutionality the Act. can affect validity urged postpone ruling upon were We also proposal fully is also unac- Act until it had been This funded. proceed upon assumption ceptable. com- We should and do forthcoming plete funding necessary furnish will be means — put operation. full the statute into determination reach we — — if so, highly and desirable to at possible be decide face, the on its did statute, once whether or did meet not constitutional requirements. Parenthetically, we note that may whether it or constitutional may pass muster as in the any future to individual at school district applied time, any particular await event. quite obviously must the in the factual then Only context and in the presented light of circumstances a de- they may appear then could such termination made.

Accordingly we ourselves to to address the issue as whether, face, on its the 1975 is or Act is not constitutional.

I is, It of initially, vital importance to that note this is time in the first of the course this that we litigation have had opportunity to consider a meet plan intended all of a aspects and thorough efficient education. Robinson I, as the in clear, sentence of the makes opening opinion only volved “the constitutionality of statutes providing financing the of elementary and schools.” secondary [62 N. 473, 480; true emphasis It supplied]. course that opinion says much that bears upon significantly aspects of the problem of education other than public fiscal And one. asked although we have not hitherto been examine adequacy system educational State in other than financial terms, constantly we have been mindful that money is only one aof number of elements that must be studied in definition and giving content the constitutional promise of a educa and efficient thorough tion. Thus in Robinson said, IY we — facially upon the statute constitutional this as- rests sumption. plainly, Act, funding, Put more the 1975 absent could compliance never be considered a constitutional amend- the 1875 — Jersey adjuring legislative ment New Constitution es- thorough of a tablishment and efficient education. play a role in [non-fiscal] factors vital [A] multitude other — few, group name a individual result educational techniques disadvantaged disadvantages, compensatory for the use availability qualified handicapped, variation in teachers teaching areas, and evaluation methods different effectiveness professionalism every system, meaningful thereof, at level authority discipline, adequacy curricula, of over- exercise goals policy [69 141] all level. N. J. fixed to examine legislative proposal called upon are now We the constitutional iden- promise, to define at once seeks consists, of which establish a pro- tify components and afford implementation for its cedural mechanism for its fulfillment. We necessary approach financial means of validity mind the presumption our 'analysis having act. accompanies legislative which the II de- never out that the State had I pointed Robinson we In the educational oppor- content of out fined or spelled Constitution, we indicated and tunity required way” “in discernible so some this must be done J. 62 N. would be made apparent. of this scope obligation noted, have now This, as we has Legislature at efficient edu- of a and thorough do. The goal undertaken to which must consist elements of principal cation 'and the it are stated: explicitly goal thorough system public of a schools and efficient free provide Jersey, regardless of to all

shall be to children in New oppor- geographic location, or the educational socioeconomic status tunity politically, economically prepare which will them to function society. socially [N. 18A:7A-4] in a A. and democratic S. thorough system public and of free in- A efficient schools shall following major elements, guide- which shall serve clude implementa- legislative goal lines for the and the achievement tion of this act: goals a. Establishment of educational at both the State and local levels; Encouragement public b. establishment of involvement goals; educational produce c. Instruction intended to the attainment of reasonable proficiency computational levels the basic communications and skills; program offerings designed develop d. A breadth of the in- pupils; dividual talents and abilities of Programs supportive pupils especially e. and services for all educationally disadvantaged special those who are or who have needs; educational Adequately sanitary physical equipped, f. and secure facilities adequate supplies; and materials and g. personnel; Qualified instructional other procedures; h. Efficient administrative adequate program development; An i. j. research and monitoring programs Evaluation and at both the State and [N. local J. 8. A. 18A:7A-5] levels. To elements” listed “major above should be added of sufficient fiscal requisite support. implied this is Perhaps in what above. event quoted any dealt with in a later length portion statute3 and is discussed below. with these

Together legislative statements educational aims and the ingredients of which efficient thorough and education must consist, attention should be directed to one of the findings in a appearing prefatory of the Act. portion This reads as follows: sufficiency growing evolving Because education is concept, thorough the definition of a of educa- efficient necessary

tion and the delineation of all to be included the factors therein, historical, depend upon economic, social and cultural Legislature must, context in which that education is delivered. The nevertheless, explicit provision design make for the and State systems by delivered, should, local which such education and explicitly provide therefore, years from after 4 the effective date major comprehensive act for a and this evaluation both the systems, sufficiency provided and and local the of education State thereby; 18A:7A-2, a(4)] A. [N. J. 8. subd. a the This statement reveals on perceptive recognition part of the of the nature of the Legislature constantly evolving ¡7A-17 seq. J. 8.. A. et 18A

concept considered. being It manifests an that awareness (cid:127) wbat seems sufficient today may be proved to- inadequate morrow, even and more importantly only light the of experience can one ever come to know whether a particu- lar program is achieving the desired end. the Constitution

While the places squarely responsi bility for the maintenance and support free schools public the upon Legislature, administrative of this aspect obliga tion has fact been historically delegated a large part to of local school system districts, chiefly through operating local Purthermore the of the aspect school boards. fiscal taxes obligation has been met in long significant part by raised same All of well known by these districts. this is I, and in Bobinson discussed N. J. at 505-12. length This of the financial as between sharing responsibility was and these local districts there held be consti State N. J. at 510. The Act of tutionally permissible. with continues plan large delegated responsibility the resultant of administrative fiscal sharing duties and support. obvious commitment Legislature’s

In furtherance a educational will be more system belief sound to the made and constantly growing, provision or less changing in the rather elaborate monitoring Act for arrangement. are here shared local responsibilities again N. J. 8. authorities. A. 18A:7A-8 to 12. We draw especial N. J. :7A-10, attention to 8. A. 18A which reads follows: purpose evaluating efficiency thoroughness For public State, commissioner, all schools of approval of the State board and after review Com- Joint Schools, develop uniform, on the mittee Public shall and administer a system evaluating performance Statewide of each school. part testing Such shall be based annual on for achieve- areas, part ment in basic skill and in on such other means as the proper (a) pupil commissioner deems in order determine status needs, (b) pupil progress, (c) degree assess ensure objectives to which the [Emphasis educational have been achieved. supplied] This an and important potentially far-reaching provision. It that ex- recognizes to achieve seeking educational cellence and in the success of such attempting gauge any effort, each school district be a must examined as separate unit. As we have above, seen has enumer- Legislature ated the components of and which it a thorough believes efficient education must consist, these, including implementa- level, N. A. J. S. used 18A:7A-7, at the local to be tion as for the guidelines achievement of the legislative goal. thus that local shall providing particular boards establish standards, and and that objectives educational goals, evaluation shall treat school dis- and monitoring system units, individual ac- Legislature implicitly tricts as will exist diversity inevitably among that knowledging com- configuration these establishments. separate and above, mentioned both ponents qualitatively considered educa- will a fine sufficiently that produce quantitatively, different tional in one will be opportunity district, inevitably from reason, we in others. Hot alone for this required think that achieve- legislative provisions evaluating — — ment here forth been well set in broad outline have and thoughtfully formulated. well as

Crucial to the success as legislative plan, constitutional, the statute is facially the argument A. 18A: Act: N. S'. are three sections particular Commis- 7A-14, These to the provisions allocate sioner of Education Education and to the State Board of two-fold a con- continuing responsibility: first, to maintain time any particular of what elements at stant awareness education, efficient find thorough place the inevitably changing evolves concept through come; second, in- will take in years forms that it sure that there be ever sufficiently competent present, dedicated func- personnel, equipped, guarantee adequately tional implementation, so that over the years through- out the State each shall offered pupil oppor- equal an to receive education of such as will

tunity excellence constitutional meet the standard. of the Com- responsibility, this allocation

Pursuant to results missioner is to review the monitoring required mentioned above. Upon detecting and evaluation an he must direct local inadequacy board education to forthwith a prepare to plan designed remedy correct and that failure been has identified. Such sub- plan will be mitted to him for If approval. approved, will plan be "in a implemented timely and effective manner.” J.N. 8. A. 18A:7A-14. Should be proposal approved, the Commissioner is to directed to order the local board show cause there why should a plenary not bé held be- hearing fore him to determine whether or not action is corrective held, If a necessary. and the Commissioner hearing such needed, decides fact action author- that in such he is then ized "to order within the school necessary budget changes district,” or and "in-service teachers training programs other N. A. school both.” J. 3. personnel, or 18A:7A-15. If these steps turn insufficient, prove the Commissioner may then formally the matter bring to the attention of the State Board in order that may take further action. The statutory power obligation of the Board such upon an occasion is stated thus: board, determining The State on tbe school district is not

providing thorough a education, notwithstanding any and efficient provision contrary, power other of law to shall the. have the to specifying issue an plan administrative order a remedial to the education, plan may local board of budgetary changes which include or other appropriate. measures the State board determines to be A. S. 18A :7A-15] IN. Should the local board fail or refuse to comply with such order, then administrative Board shall apply Superior Court action in lieu writ prerogative for an order such directing compliance. we have said summarized. maybe

What The Constitution imposes upon the Legislature the obligation ". . . provide a efficient support thorough maintenance for the free . . . system schools public imposition this course with it such duty may carries as power needed fulfill The statutory obligation. language and discussed above constitutes a of this quoted delegation to the State Commissioner- of power Education well as to the State Board of Education see that the constitu- have, tional mandate is met. They been purpose, made legislative agents. They have received vast grant power them has been upon placed and on- great going responsibility.

It has been both suggested power, given and Education, the Commissioner to the Board to of direct not “budgetary changes” does include the to power compel an a local increase school above budget that fixed limitation; local by the authorities. We cannot accept emasculate, to do so would be to perhaps fatally, what we be lieve to have been the scheme. It legislative would thwart the State authority Board’s compel local district meet the financial commitments necessary satisfy and efficient standards. thorough Cases such Board as of Education, East Council, Brunswick Township v. Township East Brunswick 48 N. J. 94 Township, Board (1966) and Education Elizabeth, Elizabeth v. Council City N. J. 501 (1970) are readily In those distinguishable. examined, cases we I respectively, Type Type and II school (N. districts A. S. 18A:9—2 and 3), and in each ease — suggested although the point was not really argued —suit budget either determination reached by should not exceed Commissioner what had been first fixed local board education. But these in no cases are event precedents controlling as to matter now before the Court. dealt with They problem fixing adopt the school ing for a budget particular year. cases such the Commissioner acts somewhat an as arbitrator reviewing competing claims. Depending in upon district type volved, he may called upon be to evaluate the conflicting education, and assertions of the local

claims board the board of estimate body, school municipal governing He act voters of school district. required there is little time for deliberation. speedily; hand, under the Act of 1975 the Commis- other theOn stand as an arbitrator any among not in sense sioner does for the matter to be pre- nor does he wait local groups, or he the initiator. Directly indirectly, him. sented to and review of the results of the and other His tests study that are conse- and his monitoring procedures prescribed, action to such and review are pursuant study vastly quent task final from the he undertakes in into putting different form the terms of annual These are budget. separate distinct responsibilities that have been allocated quite to the Commissioner. They call him to follow upon' quite Eor separate procedures. his function example, under new Act is no means confined to budget A failure analysis. to meet minimal educational may, standards more perhaps not, often than lie elsewhere than matters of finance. Thus study the Commissioner’s review are confined to school district’s financial support. There must also be included a consideration of the other elements set forth in N. J. A. by the S. Legislature 18A:7A-5. Account taken, well, of must be as such other from may factors time to time and assume emerge significance as the result and further ongoing study experience. But where it is clear that an from a stems failure inadequacy of fiscal re- sources, then the power given Commissioner and State Board to effect in local changes does include budgets the power to increase such budgets beyond the amounts determined. locally Such power wisely must course be any exercised and such exercise will always be to subject review, there judicial but is no doubt that under terms of the Act of 1975 such power exists.

This grant of is power responsive I, to Rolinson where we out if pointed chose, the State either in whole or to part, assign its constitutional obligation to local gov- ernment, then afford it must some mechanism by which local school districts could compelled be to raise the neces- 62 N. J. sary 513, funds. at 519. The present enactment, as we it, makes interpret provision adequate to meet re- this Zito, v. 54 N. J. quirement. (1969).

Ill us This to a brings consideration of portion Act dealing state school A. aid, N. 18A.-7A-17 et seq. As we to sought emphasize of this beginning unlike the opinion, pxevious occasions the course during this when litigation this issue has been presented, it now is before us in the context aof full and complete de- plan signed provide and efficient thorough education. Ac- the state school cordingly aid provisions embodied in this Act must considered, comparative isolation, but aas part of the whole proposal formulated by the Legisla- ture. The components of this proposal sig- are most nificant this purpose are these: 1. What is meant aby thorough efficient education has now defined; been of such an has goal education stated; been which elements of have consist been enumerated.

2. The has chosen Legislature continue share fiscal as well responsibilities as administrative with local school districts.

3. Provision has been made for an elaborate continuous monitoring and evaluation.

4. The results process evaluation are to be studied and Commissioner, reviewed treating school districts as separate entities, in order to detect any or failures. inadequacies

5. The iCommissioner, coordination with the State Board Education, to take empowered all necessary steps defects, such correct where including, necessary, increase in amount of local budgets. the Act are to be as provisions judged

The fiscal whether do or they or depending upon inadequate adequate financial for the support system sufficient not afford do from the will emerge implementation education that public are forth in statute. We no con longer set of the plant it existed before needs of the as public sidering had this in mind Legislature 1975 Act. We assume aid clauses of this statute. when the state preparing falls into three categories. fiscal aid generally This the cost of which con- categorical programs is to bear State fall financial who into support pupils special sist of neu- visually auditorially such as handicapped, groups or is based emotionally disturbed. Aid impaired, rologically for stu- weighted Transportation on a basis. costs per pupil live distances from school are to beyond specified dents who each in full the State. Lastly, pay must paid certain current support school district its equalization The amount of varies support depending expenses. paid on valuation of the the assessed part relationship local school district to the State assessed valuations average districts, up of all school effect general being bring than districts with less nearer to that level. average Each financial of these reflect rec supports legislative the “discordant between the edu correlations ognition cational needs school districts their respective bases”, N. J. at 520, tax could not exclusive be met reliance local taxation. upon say We cannot that under these circumstances dollar input per pupil, keeping may mind that there be and probably are differ legitimate students, between and districts and will not be among ences sufficient to offer each pupil educational equal opportu as nity required by the Constitution.

We do foresee pattern perhaps considerable quite about change coming procedures of this new legisla- tion are to bear How brought upon system as whole. aid much will be needed in any state particular district time to any particular supplement levy the local some-

465 do, we cannot We must as that assume, forecast. we thing state aid in the before provisions represent Act us best as to this need Legislature’s prophesy effort what will Comparison be. between of this Act provisions N. J. Law, School Incentive State Aid Equalization down, 8. A. 18A:58-1 ei which Robinson I seq., struck useful, be perhaps certainly while cannot significant given The which this new Act Commis power gives the weight.4 sioner and State Board of Education increase local would, itself, in and of value budgets, suggest the dubious of any such comparison. on the administrative bodies to

This state power part that local school be budgets requires thought given increase above, As stated Robinson I warned another factor. we bodies, were if the State’s to local obligation delegated must if such local compel, necessary, be made provision essential. We units to raise such as deemed might funds does make such pro- found that statute present have Robinson “if local say But I went on to vision. itself burden, must government cannot carry N. J. meet at 513. continuing its obligation.” of a local con- may on the district inability part Piscal of several rea- from one or more causes. One stem ceivably tax for educa- lack base adequate be the would son shown gross as indicated disparities tional purposes districts. tax resources in the various school pupil per nearly equal- has a to more step 1975 Act taken positive a tax by establishing guaranteed resources ize per pupil property per equalizes valuation student from 1975 Act 4The substantially (341 standpoint greater number of districts equalized 1976) guarantees of minimum because of State Equali per pupil, State School Incentive than does the valuations (157). support aid also note that minimum Aid Law We zation year million in second $48 1975 Act will amount its under compared support approx operation to the minimum aid as predecessor statute, imately million under the distribution $290 enjoined prior order, J. under our 69 N. at 155. of which was valuation per pupil the school year 1976-1977 1.3 times the state average equalized assessed valuations per Thereafter the pupil. 1.35. N. figure is 18A:7A-3. 8. A. actual Only experience this formula will demonstrate whether it adequately serves the purpose intended. fiscal

Upon occasion inability may be due to "municipal overburden.” This phrase has come to be used to describe non-educational municipal expenses which must be largely — n — financed from the same source property taxes affords fiscal support education.5 The 1975 Act is silent as to how this of contingency n local fiscal inability is be met. It does not in say, so words, many where the money is to come from the event of a a that local school district is showing in performing to a insufficiency, due fiscal with a fur adequately together ther of at the local level showing inability to make this up monetary lack. This omission fatal is not to the facial con Act since State school aid stitutionality may obviate Though eventuality occur, such never may predicament. meet the State must be this prepared if it contingency arise. We think would be were does wise the Legislature itself to potential to address this It would be problem. help — were guidelines ful and there to be expedient legislative n — what kind of showing must be or administrative for state asking a school district assistance due made needed funds. to recruit inability local annual A. 18A:7A-25 a upon N. S. limit places is sought increases. We are not sure what purpose budget particularly areas, exceptionally high areas, urban 5“Some have expenses through property which must be financed non-educational high exceptionally Expenses in urban areas in- taxes. which are municipal protection, county welfare, police and and clude fire by property areas, sanitation. In these raised taxes which revenues might education, otherwise be used for must be diverted to non- purposes.” IV, (Pash- N. educational Robinson J. at 169-70 man, J., part dissenting). concurring only also en- See suing municipal opinion, overburden in discussion the same N. J. at 170-73. to be served by this It be provision. may the Legislature feared that immoderate increases al- might unduly add to tax ready excessively burdens. It have high had other may in mind. aims In any event the Commissioner authorized to approve requests increases where the level larger would be insufficient to spending meet the goals, objectives and standards established to satisfy requirements and efficient education. How thorough many districts what amount dollars are involved is course unknown time; at this but certainly this valve ade- escape is at least facial satisfy constitutional quate requirements. makes no

The 1975 mention of the weighting Act mean, however, This does not pupils. concept viable under new statutory Certainly no scheme. longer Commissioner, status needs” “pupil determining and ensuring would, likelihood, in all “pupil progress” take into concept account. ordered the Robinson IY we reallocation educational be for minimum aid on appropriated which were to funds end that valuation basis to the pupil average per per nearly state would more throughout equalized. pupil minimum was un- However, we did not hold that aid se per in the light improper found it We constitutional. and tax resources expenditures pupil per disparities

gross under there review. school funding program in the existing for to make some provision Act continues 1975 The basis; but, when viewed minimnm pupil a per upon aid noted, which, act as heretofore over all of the context the disparities per eliminate gross to steps positive has taken such cannot resources, provision and tax expenditures pupil actual Only experience unconstitutional. be to be said need for further whether there is will demonstrate Act the modification. or adjustment Educa the Public School our conclusion

It is face, on its constitutional in all respects of 1975 is Act tion Court of this funded. order fully assuming again IV) 23, 1975, May (Robinson opinion in our contained 468 165, N. J. enjoining certain state from officials dis- funds

bursing appropriated the manner except there set forth is vacated. hereby The Act of 1975 is in full force and effect.

IV jurisdiction retains of the The Court cause for pur- the following directions. If pose effectuating the Legis- a bjr April lature does provision enact in full of the State aid funding provisions the 1975 act school 1976-1977 year will, for the the Court on notice and to all school districts parties State, of the who heard, shall be given opportunity to issue an order to before show cause returnable on Court 15, 1976 April Court should not forthwith why order one or more become following, effective unless the Legislature but on or 30, 1976, before June thereafter enacts provision such full funding: A. redistribution of such direct monies for State aid schools are appropriated Legislature as for the school manner, 1976-1977 in year such generally, as to give priority full, so far as the satisfaction said funds may permit, of the 1975 act for provisions payment of current expense support equalization (exclusive mini- 10% mum and for support) debt service and budgeted capital outlay support, equalization pursuant Sections 18 rata; act respectively, pro and should any excess such State aid monies thereafter remain, then to the satis- rata faction of the other pro State aid provisions of the act; order such injunctive relief as bemay .B. appropriate necessary; order such

C. different or other relief may be appropri- ate and necessary. C. J.

Hughes, I (concurring). concur in the result reached majority of the Court. And I agree with its conclusions with facial regard to constitutionality 1975, the Public School Act of here- except to the extent after mentioned. As to those concurrence exceptions my result is majority made doubt misgivings, some and engendered by elements involved in the comprehensive opin- ion of Conford Judge herein, well as discussion as the able by Justice Pashman of the over- implications “municipal burden.” I think it in and clarity the interest of justice I state such my reasons, despite and I feel it why necessary, doubt, to concur in the result. the 1975 the Legislature accepted,

When it enacted Act monitor the I, 2b (5), responsibility Article “[t]o § ac- for corrective of free schools and provide system public toward to ensure necessary adequate progress tion when objec- and achievement of These objectives.” “goals goals of the Legisla- tives” context were framed in the necessarily I, of its constitutional 2a(l)) ture’s Article recognition (in § support for “the maintenance responsibility provide schools public of free and efficient thorough * * instruction of all the children in N. J. the state 1; Const. VIII, IV, Art. N. J. Const. (1947), see § ¶ IV, VII, 6, Art. amended, effective (1844), Sept. § ¶ 1875. 28, It is obvious at least as that con- equally so long existence, people stitutional mandate continues too must its constitutional accept the Court continuing from its decision apart present responsibility (aside for overview facial of the sufficiency Act) concerning with the consti- compliance this or later (in litigation) obliga- of the Act. This application tutional imperative would at the outset implicate scrutiny adequacy ton adopted implement of standards and to be regulations formulation of which Act, delegated the 1975 Commissioner purpose administrators of legislative (the Edu- the local Board of Education) and State Board of cation Board. pursuant to rules established the State II, Article § this, Beyond the assuming conditional facial constitution- — of the 1975 ality Act the condition full and the being —

timely of the Act funding specified by majority the final of standards promulgation ef- regulations fulfill the legislative fective to and meet consti- purpose norm, yet tutional there remains additional problem going constitutional infirmity heart of the identified all by have courts which considered That previously this question. is, constitutional, even should the Act be facially imple- by mented administrative standards and adequate regula- funded fully by timely tions not its appropriations, e., i. “workability,” its actual in the effectiveness field in a constitutional system of efficient delivering thorough and — education, still an public and, open eventually and neces- a justiciable in sarily, question? Put another way, force the remedial power the Commissioner and given N. J. A. 18A:7A-14 et saq., including State Board the “safety-valve” provision Act, in coping § one with the 578 by one school (or districts of the State lesser number from perceived time to time be de- ficient in meeting conceivably the constitutional imperative) realistic relation to purpose? its Can these provisions effective or permitting of local compelling increase school or budgets of other taking steps toward improve- ment in order to about bring constitutionally appropriate local compliance? this, And of home against sentiment rule which concepts control all other expenditures municipal from the same taxable base which largely supports public ? education are difficult and their answers almost im-

These questions relate to experience. They without possible prophesy my I have had course of resolving proper reservations to the several elements action with regard thought Judge foredoom, case, in any the constitutional poten- Conford to however its in actual application prac- tial of the Act These been personal par- tice eventuate. doubts have might record whole long because of this ticularly puzzling case demonstrates the local school district insufficiencies (and the frustration of the constitutional consequent promise as to many so tens of thousands of New school chil- Jersey — — dren) much, result not so all, not at from perhaps a local reluctance to a thorough furnish education to chil- dren in the constitutional sense, resulting but from pressures from resources; deficient financial obviously deficiencies so attributable to imbedded and disparities invidious tax bases so many our communities. These discordan- cies are cogently described in herein of Judge the opinion Conford. Such discordancies are disassociated rarely from effect those on local equally grave pressures govern- ment management in the enveloped broad term “municipal overburden,” viewed with herein such concern in the opinion of Justice Pashman. These vital of equally peo- interests ple education, not (though dealt with in terms, specific as is in the New Jersey whether with to Constitution) regard fire, police, health or other are municipal protection, plainly related to life, liberty and of of pursuit happiness people. a cause, overburden” is but not the cause

“Municipal only of the tax discordancies of resources available for the sup- But education. as port public overburden” “municipal such, as a Court are unless we to embrace the “con- willing vulsive if home implications rule is vulnerable” (Robinson — CJahill, 1973, Robinson v. 62 N. J. at set 501) must be aside and a considered to be legislative Even problem. so, causal its or school in- relationship municipal district education not capacity support irrelevant. Although cure, court not may may “munici- certainly recognize a overburden” as causative factor in the in- pal ascertained school capacity many districts to meet the constitutional even we obligation. This that though recognize such in- occur, and does capacity may from the apart aside overburden,” from weight “municipal other causes such as a basic tax ratables in business residential paucity property.

472 Court, a constitu my member of this considering, as I recalled the Court juncture,

tional at this have duty “ ” a a firmly to ‘sit as role purport super-legislature/ does Jersey King and other courts. v. South disavowed Bank, 161, 66 N. J. 179 Griswold National (1974) (quoting Connecticut, 14 479, 482, 1678, 1680, v. 381 U. S. 85 S. Ct. 510, Ed. 2d 513 Our has previously L. Court (1965)). re shown, restraint, its judicial profound its repeatedly, separation powers government. the doctrine spect A. & B. Auto 1973, Robinson v. Cahill Stores supra; St., Newark, 5, Jones Inc. v. N. Burton 59 J. 19 (1971); Sills, v. N. J. v. 43 86, 53 95 Thomas (1968); Kingsley, Bodine, 453, 524, N. J. 530 Jackman v. 43 N. J. (1965); Sills, 403 390, Co. N. J. Grand Union v. 43 (1964); Furman, Harrison, Two Guys Inc. v. N. (1964); from A court con (1960). must adhere always fulfill far cept, only clearly so bending required will constitutional members “I duty perform: its swore * * support Constitution[s] views, the some with considered, differing All have of us out Con- pointed by Judge defects constitutional potential aid” con “minimum instance, fragment ford. For May Court our decision demned by majority Cahill, 133, 149—50) 69 N. J. Robinson v. 1975, (Robinson Act. compensation Its 18(c) present of the continues § aid, do not need such obviously which so of “rich” districts districts, clearly “poor” regressive at of the expense the goal. antithetical to the constitutional and under “Bateman” much than heretofore the Yet it is less con- Conford. It in the appears by Judge formula described definition new and wholly unprecedented legislative text of a Robinson as invoked in (a “plan” goal of the constitutional now It so 1973, nearly important 62 N. at is not 519). 69 N. J. at decision, 1975 May as when our it was Bateman. concept the was diverted to “equalization” it is, it I think its magnitude As and as wrong regressive excision, nor to cause condemna- to require not such as

473 of an act grounds by tion on constitutional conceived — — time in New Jersey history the first Legislature 1875 commit- define and constitutional implement imper- I its ment to educational think opportunity. logical fection, larger be absorbed may least presently, needful Act, thrust of so urgently constitutional in the of New children. interest Jersey in the constitutional describable as

Equally regressive 1975 Act. sense in the are the aids” “categorical prescribed costs, Yet intertwined aids, these such so as transportation with the school popula- of the personal safety well-being unless tion, are so essential at present, at least future toward non-action of in moving the Legislature tax are essential equalization they as (insofar resources constitutional efficient of a support thorough (a contin- should issue us education) upon force that gency one will these hopes occur), “categorical” we think theoretical aids should their not be disrupted regardless and real collision with precept. the constitutional logical with the

Similarly, impossible quarrel seems import of the constitutional discussed criticism § be, in well may It opinion. Section Y of Conford’s Judge arbitrary Act, that its actual of the experience working dis- increases, on as deficient budget applied restrictions in their of education delivery tricts “catch trying up” result in de- Constitution, one by may day as required Yet of the Act. termination of unconstitutional application majority must consider what is termed one valve” of to lift such re- “escape the Commissioner’s power Court, the State Commissioner, striction. The just as constitu- Board and the to fulfill the Legislature, is bound tional and it must be he will do so. precept assumed that caveat Conford’s major point Judge final

But it is the doubt, say inadequate that is to most caused me that has of tax the equalization toward Act approach Robinson identified resources, which lack was of constitu- fulfillment the of failure cause the essential The Court there said: commitment. tional to in- were intended amendments be said the 1875 [I]t cannot taxpayers. equality among doubt do- not But we statewide sure precisely opportunity equal was children for educational supported be maintained there in mind. The mandate system public thorough the schools of free and efficient “a ages of the in the State between of all the children instruction import. years” eighteen the Whether no other can five have government, upon directly imposes the or the role local State acts product commands. A what the Constitution must be end thorough any which is not district of the State of instruction Whatever of constitutional command. and efficient falls short the rectify violation, obligation the is the State’s the reason the compel government government fails, State must If the it. local carry burden, government act, if local cannot it continuing obligation. N. [62 must itself meet its State 513] indeed to “meet continuing obliga- And State is its if tlie use of State aid fill the by education tion” to public of real and local to meet incapacity vacuum proven so commitment, does not demonstrably constitutional it do Eor aid by 1975 Act. unequalized leaves what has been assumed to be an otherwise always dollars tax on im- deficiency many irreversible resource the part Yet the 1975 school districts across State. poverished is as out fully funded), pointed Act (assuming it op- does much else that is for educational majority, good no less than historic its definition portunity Quaere: to the and commitment constitutional Should goal. now, of more it be struck down of the lack of a plan because ? substantial equalization there restraint and moderation area of judicial exigencies government,

room for accommodation consideration Conford, prac by Judge out pointed Brown v. Board accomplishment. tical possibilities 756, 753, Ct. 294, 300-01, 75 S. 349 U. S. Topeka,, Educ. of has exercised Court 99 L. Ed. This (1955). accomplishment in the required this restraint timing 475 a constitutional eventual goal, without its en- abandoning Bodine, forcement. Jackman v. 1973, Robinson supra; Robinson supra; Here supra. one must acknowledge the timely between 1975 Act as funding the difference and majority implementation the over some directed of the years number equalization concept feasible twice aid in terms of the State average State equalized valuations as described in his by Judge assessed Conford former, some As to the (or comparable alternative). opinion If has run out since. the Court to long time were to fail now insist immediate of the 1975 rtpon funding Act as a con- dition to its facial sustaining constitutionality, it would it- be to a self violation contributing profound of the New Jer- however, Constitution. As to the sey latter, considering beginning operation developmental to experience be under the expected fully Act, funded I would not now of its predicate finding its unconstitutionality upon deficient of the recognition need substantial equalization or to equivalent comparable Judge recommended by Conford. And if perchance near future reasonably should be there no effective toward step equalization, it were to established by be that such failure caused proofs re- continue to fester the invidious discordancies of tax sources destructive the possibility of the consti- meeting I tutional would feel goal, constrained to then determine the unconstitutionality Act, even application Robinson 1973, supra, Bateman, determined as N. J. at 515. in the join majority opin- J. (concurring).

Schreibek, I show mentioned in ion, I that the order to cause but believe include, in to the Part should addition IY of the opinion thereof, A, B and C contemplated by paragraphs remedies Pashman which collection Justice under that suggested would of the schools support public of local taxes tax would be in lieu thereof a state school enjoined State. throughout determined and the ratables applied then be funds collected would disbursed through Treasurer, to the subject approval Commissioner Education, school districts. respective Contokd, D., Temporarily Assigned (concurring P. J. A. views all deference the differing With dissenting). writer entertains the firm convic- of the court majority, in- respects, certain important particularly tion that in among per pupil of of tax resources equalization adequacy 212, act, 1975, c. 1975 education L. districts, the the school require- A. 18A:7A-1 et does not meet the seq., N. S. laid of the the Education Clause Constitution as ments of Cahill, Robinson 62 N. J. 473 (1973) (herein- in v. down Robinson decision”) as 1973 or after “the designated opinion reaffirmed of the as con- majority presently as court Cahill, 69 N. J. than in Robinson v. stituted, less a year ago, 133 as “the 1975 (1975) (hereinafter designated Robinson or Aside from those of the new aspects opinion decision”). statute, addressed, to which will the presently attention shares with the view that the act majority writer otherwise facially valid and should so be declared at the without further necessity time remand for present factual of the hearings by plaintiffs as demanded and certain However, amici. one re- compelled say, profound that in facial 1975 act blanket to the gret, approval giving loto, the court is from of fiscal jus- course departing tice to the school which it embarked children of this State on Robinson so a fashion in the 1973 decision enlightened and reinforced in the Robinson so recent 1975 resolutely case. 1975 Robinson

Introductorily, it is to be noted in the in inter- of court had no majority hesitancy this opinion “the of the court as identifying decision as preting fhe deficiency” cause constitutional principal system financing public education previous * * * taxation, entailing “the substantial reliance local upon ‘discordant between the educational it does correlations needs the school districts and their ”, respective tax bases’ 520; J.N. at 69 N. citing J. at 141. In essential charac ter, the 1975 act now under review retains the de vitiating pendency local taxation for upon the bulk of the cost of education, local financing with its substantial continuing discordance school districts in among relation to the ratio of the tax resources of the districts number of enrolled the schools. While pupils the equalization sup act, of the 1975 port provisions designed ameliorate the mentioned, discordancies are an improvement over those law previous (hereinafter referred to as the Bateman or 234; Bateman-Tanzman c. Act) N. J. A. S. (L. 18A:o8-l et seq.), nevertheless, shown, as will be a sub stantial proportion the State’s school districts, of enrolled therein pupils assessed valua equalized tions represented thereby, remain unaffected support equalizing provisions the 1975 act. consequence, must follow that the resulting absence of of edu “equality cational which opportunity”,1 Chief Justice Weintraub found fatal to the of Bateman in constitutionality the 1973 Robin son decision, still condemns the validity act, in least part. in which 1975 act major aspect

The second short falls to be more requirements, fully of constitutional developed herein, later is in of the respect provision of substantial all which, “minimum aid” to those districts because of their base, relatively do not high valuations-per-pupil qualify aid. The specific of our 1975 support holding equalization Robinson was that “minimum decision aid” to in districts as then for in provided Bateman, invalid category, was factual context of absence of full equalization sup- all Indeed, of districts. our order in that case port was of all such the redistribution minimum aid in accordance with the the Bateman equalization support provisions of 513, 516, N.

1 62 J. at 520. , Thus, the 1975 act Act. N. flawed be being to tax provide of its failure of resources equalization cause districts, all among substantially the minimum aid pier pupil act must also fall.2 of the necessarily provisions however, is, readily of consti- susceptible act The 1975 framework general within the of the correction stat- tutional be an drawn, will demonstrated. But presently as as ute provisions of how the the act equalization understanding of both the prescriptions the constitutional fall short of court requires Robinson decisions outline prior schemes of the state aid of Bateman general and comparison act. and the 1975

I of the Bateman support aid plan A state synopsis Robinson 62 N. J. at the 1973 opinion. is Act set forth consisted of three plan The basic structure 516-518. seen the 1975 act, although It will be main features. detail, in its aid to continues markedly general differing Bateman structure. main features the three plan as found in both the features, question, acts These consist of: plan designed, valuation equalization an assessed

(a) district every equivalent school “guarantee” effect The purpose a fixed amount assessed valuations. valuations actual assessed equalized3 district every whose give provisions 2Invalidity aid also attaches certain “save-harmless” he had herein. will later act to- which further reference the 1975 N. J. decision. 69 These also condemned the 1975 Robinson were at 155. “equalized phrase “equalized” as used herein in the 3The term general distinguished concept from the assessed valuations” power support equalizing ex- educational districts in their resulting pense. from annual former refers to the statistic through- determining process of value all assessed ratables of the true annually the This done the Director of the districts. out “equalized Taxation, resulting of the valúa- and State Division same level the to raise the capacity are below the guarantee school expenses per through of funds for pupil amount district; other such every rate school tax same “minimum” allowance to the per pupil districts (b) apart guarantees; from equalization separate defray expenses at- (c) special aids “categorical” tendant of upon pupils difficult requirements especially to educate in various This also includes respects. category children from school and expense transporting certain other miscellaneous of aid. types

It especially becomes pertinent compare equaliza- tion state aid aspects plans Bateman and the 1975 was act. Bateman build “foun- designed upon previous $400 dation plan” per Districts were to be rated pupil. for aid a five-step scale from <fbasic” to “com- ranging the former prehensive”, to be valuations afforded guaranteed $30,000 $45,000. at the rate of pupil per latter However no other districts than A basic were ever created. transitional scale of funding of the amount of equalization aid Bateman required was for set up attainment over a period years. original funding was 20% difference between the Bateman formula at the basic level L, and the previous 1970, foundation program. c. 234. Por year the school 1972-1973 the funding was for 40% 1971, L. difference. c. 335. Por year the school 1973-1974 was percentage increased 1972, L. c. 195. 66-2/3%. Por year the school 1974^1975 the Bateman fully Act was (at funded basic L. level). 1973, c. 310. However, school year 1975-1976, aid was appropriated only level, 1974-1975 full Bateman funding sus- accordingly tained a shortage about 18%.

Inherent in the Bateman aid plan is the proposition districts actual having equalized valuations guar- above the tions” have been used for distribution of state aid to education plans under all aid Tp. state effect since 1956. See Will ingboro Burlington Cty. Tax., v. Bd. (1973). 62 N. J.

480 enjoy as of time will by any given level fixed the act

antee tax rates for the same amount of education lower education than valuations are districts whose actual pupil expense per level. the trial in opinion See court the guarantee below Cahill, Super. 223, Robinson v. 118 N. J. 262 case, this stated, As there “the Bateman Act con Div. 1972). (Law formula.” Ibid. As wealth-based employ tinues $33,000 per pupil, level for state aid was the guarantee ibid., actual at time 208 there were that districts but $35,000 (4 below valuations below were per pupil equalized $35,000 $90,000). and 370 $10,000) (42 above above N. J. at 242. There was Super, obviously inequality thus in the as between districts opportunity pupils educational with those “poor” below (so-called districts) compared Act (so- level fixed the Bateman guarantee by above trial “rich” The made districts). by called studies evidence him him that: from the before satisfied judge money per pupil spend cases, than districts more rich “In most money districts; spend poor teachers’ salaries districts more on rich professional pupil; staff per more teachers districts have rich manage per pupil, this with tax rates that districts rich are despite ‘equalizing’ districts, poor N. aid.” 118 J. Su- than lower opinion Appendix 237-238; per. A of trial attached to see at court, id. at 282-285. adjudication of trial court unconstitu review of On court in its financing plan, the Bateman tionality of affirmed, its on resting holding Robinson opinion found denial of trial court had also (the Clause Education The court found “denial federal). state and protection, equal stating educational opportunity,” of equality as that em criterion on same placed was adjudication — discrepancies trial court “on basis ployed is ap 62 N. J. at 515. But it input per pupil.” dollar found above the trial court from what is noted parent the symptoms, in dollar input4 discrepancies startling per pupil annually 4Ranging from $700 district below Super, over 118 A. $1500. See root causes of the constitutional deficiency. from the trial court opinion excerpted above indi- quotation cates that it ear-marked the wide discordancies tax ratable as the most cause of extent per pupil probable resources discrepancies expenditures so fatal equality educational That opportunity. this court was in agreement with that diagnosis established at least two by significant statements in Chief Justice 1973 Robinson Weintraub’s The clearest was: opinion. “Upon may us, thor- the record before it be that doubted

ough required by amend- efficient of schools the 1875 by upon realistically ment can be met reliance local taxation. The discordant between the needs correlations educational the school respective suggest any districts and their tax bases that such effort * * likely (emphasis added). would fail N. J. at 520

The other is: pertinent excerpt [Bateman] formula of the 1970 Act have outlined “We guarantee designed demonstrably that local that is not show pupils plus yield to all in the State aid will effort the State opportunity which the 1875 Amendment that level of educational finding Act, the 1970 even no basis We see mandates. if obligation satisfy funded, fully would constitutional added). (emphasis at 62 N. J. State.” as now it was anyone clear to to majority be as It should 1975 Robinson decision, as in rendering court of this taken in above, that these passages, light noted already opinion a whole and the of the trial cogent the record as in tax court, established the district discordancies resources de- “the cause the constitutional principal per pupil under Bateman. 69 N. J. scheme financing of the ficiency” 141. aid inspect the state is, appropriate accordingly, It act, in the of the information light of the plan whether the fundamental constitutional record, to ascertain Act, above, Bateman noted has been elimi- defect under the now before us. nated by legislation

II deals with state pecuniary 1975 act III of the Article noted, preliminarily, It should aid to the districts. outside amount of local aid a significant provides the State it, unaffected form act, of the the coverage system, entailing pension of the schools’ public support $200,000,000. This aid upwards 1976-1977 year The not an basis. cost, on an actual equalization, is provided will the act hereinafter fiscal provisions discussion specifically when except inclusive of those figures not be noted. in three local districts is provided aid for school aid” “categorical support”, categories: “equalization

general is calculated minimum support. Equalization support “debt 18, and for for “current Section expenses”, separately service and budgeted capital outlay”. Section formulae are best understood support equalization attention to certain definitions. “Guaranteed preliminary 1976-1977, valuation per means, for the school pupil” year 1.3 times the State valuations assessed average equalized in the Thereafter the enrolled schools. Section 3. pupil per 65th Ibid. limit” the support is 1.35. “State means figure net for expense pre current the percentile budget per pupil low when all district ranked from year5 are budget figures A Ibid. “State ratio” is deter support district’s high. by dividing mined valuation equalized per pupil district by the valuation guaranteed per pupil subtracting from 1.0000. Section quotient The amount of a district’s current expense equalization derived it's ratio by multiplying support State support the net current (1) expense budget smaller the resident enrollment times the State limit. support (2) expense budget” 5All references hereinafter to “net or current expense budget” pre-budget “current shall be to refer taken to the year. It Section 18. can be seen that general concept back each in pupil in respect schools district current expenses (but not in excess of the State-wide 65th per- with tax centile) resources as represented by valua- equalized tions of at least 1.35 (after 1976-1977) times the State aver- age districts. Those districts that have less valuations are effect brought to that level up are by aid; those that no above current get or expense aid service and budgeted debt capital aid outlay but receive minimum support (see aid infra). support debt service and out- budgeted capital

lay is in the amount of the district’s for those budgets items multiplied by district’s If State support ratio. zero than district no Sec- product is less aid. gets tion 19. aid is two categories:

Minimum “minimum support (a) no non-statutory term) of less current expense aid” (a limit, than State support support equalization 10% aid” “save-harmless 18(c); (b) Section non-statu (a no every district of less in aid of term) assuring state tory 1976-1977 than it received all categories during 1974-1975, Section no less in 1977-1978 year school of the difference between one-half what than it received what it 1974-1975 and would be entitled to under 56.6 act. Section aid consists of a of “addi schedule program

“Categorical” tional cost factors” in weighting pupils attending special classes7 cal- (Section education 20). Categorical support is moneys pro- relatively small, 6The save-harmless are and as the phase may regarded after visions out 1977-1978 as de minimis purposes. for constitutional weightings special 7The for the various classes are as follows 20) (Section : Special Education Classes Additional Cost Factors Educable 0.53 Trainable 0.95 Orthopedically handicapped 1.27 the number of additional cost units by multiplying culated Section expense net current budget. average State 20(d). sup- understood as under falling “categorical

Generally defrayal in the act is the treated separately but port” 34 and 35. aid Transportation costs. Section transportation full cost children handicapped is of transporting be- the full cost of transportation any pupils residing Ibid. yond distances from school. specified at which the rate districts act regulates 25 of the Section year current from expense for net may budgets increase the Commis- discretionary exemption subject year, aver- than the State are less budgets sioner. Districts whose above than at or a faster rate districts may increase age below upon degree the rate depending the average, all are sub- above the State average Districts at or average. increase. to the same maximum rate of ject Bateman aid provisions the equalization comparing con- whether the in order to determine act the 1975 as to Bate- above, adjudicated discussed infirmity stitutional act, the court to the man, applicable also impaired Neurologically 1.06 impaired Perceptually 0.85 Visually handicapped 1.91 Auditorially handicapped 1.38 handicapped 1.06 Communication Emotionally 1.27 disturbed maladjusted Socially 0.95 Chronically ill 0.85 Multiply handicapped 1.27 and Services Otlier Glasses plus private Approved tuition 1.0 the additional cost school handicap factor speech Supplementary on instruction 0.09 based the number of n pupils actually receiving such instruction prior year school Bilingual education 0.16 compensatory education 0.11 Approved education local vocational 0.53

485 remitted the two comparison to facial schemes. financing The court benefit of has the extended statistical studies sup us all upon at our served the plied request, parties, by For Department purposes of Education. discussion the it will ensuing be assumed that district immediately under to valuations 1975 act as the receives “equalized” benefits to those of a equalization equivalent district equal ized under Bateman.8 It as conceded, majority must be the out, that a number of point substantially districts greater will, act, 1976-1977, under the 1975 for school fall year within the umbrella current equalization expense and for debt service than outlay, and budgeted capital would be under equalized comparable equalization pro visions of act, funded, Bateman were that fully operation year. same school of a

In the interests fair assessment long-range effect of the act use equalization will be made of the Department’s at the 1.35 ratio figures computed guarantee which will after the apply year school 1976-1977 ratio (the is 1.3 only for the year 1976-1977). Were that ratio for 1976-1977, effect districts, of the school or 63.7%', would be The equalized.9 pupils in those districts 8Although, presently shown, equalization as will under be qualified by 1975 act certain factors to be noted. “equalized” 9The term intent used in the sense of the here give every guaranteed act under a district fixed limit of expenditure valuations the same school tax for the same rate school per pupil. per $89,000 pupil (on That limit would be in 1976-1977 average equalized valuations) a 1.35 ratio of State if there were provisions support support no minimum act. With minimum (10% support limit) equalized applies intended tax rate only $80,100 (10% to districts with valuations below less than $89,000). percentages It is those districts stated which applicable. the text are confusion, however, To minimize will be hereafter there followed Department practice guaranteed referring to the 1976-1977 equalized per being $86,000 pupil as valuations those for subsequent years $89,000 per pupil. all be pupils.

(cid:127)would aggregate equalized 73.5% in those districts would be total. valuations 56.5% may compared These figures corresponding Bateman for districts under for 1976-1977: figures equalized districts, total; 157 or of in such pupils districts 27.2% of all being pupils; valua- aggregate equalized 38.5% such of total being tions in districts aggregate equal- 21.5% ized valuations. However, the of the 1975 salutary improvement conceded act over Bateman in does just the effect noted equalization not erase the un- blunt, that remaining egregious (a) facts der the act 210 the an of districts educational possess tax resource a districts, over the other 368 on advantage basis; per-pupil (b) that educational superior oppor- tunity accrues to of the State’s as the pupils against 26.5% other 73.5%; and (c) the fiscal measure gross is advantage represented by the ratio of the 43.5% aggregate equalized valuations in the favored as districts against the of valuations in the districts discrimi- 56.5% nated against. the

The extent of educational involved inequality situation that, is foregoing the fact while exemplified by 1975 act provides valuation equalization equalized $80,100 level of actual per note pupil (see supra), equalized per valuations favored districts pupil cases run many into the of dollars hundreds thousands per pupil.10 facts, by revealed

Surely, these light patent us, operation record before it cannot said that under the will exist the “discordant act there no longer remedy suggested not as 10The constitutional hereinafter win per practical in valuations matter eliminate all discordancies pupil, pupil. example, Teterboro, For enrolled has one equalized per quantitative $80,129,986 pupil. But on a valuations substantially practicable basis a formula be seen remedial will to be feasible. correlations between the educational needs of the school dis tax their bases” found in respective tricts the 1973 Robinson decision, above, as noted have in presumptively validated the Bateman school plan because financing negating of educational equality opportunity.11 tax rate presumptive advantage under the accruing local tax system and Bateman property having districts valuations high equalized per found pupil, as fact court, above, trial noted shown Education Depart- ment exhibits submitted to us to be equally applicable the 1975 act in projection the school year 1976-1977.

Illustrative is Exhibit evidential Department’s case, in the exhibits undertaking compare prospective rates, tax expense local as between (educational) current different school aid hypothetical plans, application 1976-1977. year exhibit, slightly school That edited for added to this It forth clarity, appended opinion. sets statistics for 50 randomly selected districts at evenly spaced of all percentiles the of the of rankings districts in respect values per Y. equalized pupil (“E. per pupil”), ranging Camden, $20,401, from at the lower end with an E. ofY. Harbor, to Stone with $1,073,027. an E. Y. of Eor di- present purposes, the attention of reader is the rected to columns (2) and Exhibit 6 which (3) compare current the prospective expense effective tax rates under qualification 11There was a hereinabove the concession that proper comparison equalizing effect as between Bateman and simply the 1975 act could be made on of the number the basis equalized respective plans. districts in the was See note 8. What equalization meant was this. Under the 1975 act the factor is limited percentile expense budgets per to the 65th statewide of current pupil; applied prebudget, year, it to the current so one-year lag that there actuality is a constant behind in the bud get figure against support applied. which the State ratio is These inhibiting present computing factors were not in incentive formula equalization regarded aid narrowing under Bateman and should be as prima improvement equalization facie of the 1975 act over Bateman. 488 (there Bateman Act designated

1975 under the act and that will be seen relation It “Bateman-Tanzman”). relatively tax rates remain act and Bateman both the 1975 fall whose valuations all the districts equalized stable for $86,000 act) under the level (under guarantee No. 71 districts, with (Nutley), per beginning As pupil. rates level, go rise tax begin above approach down, with of districts drop precipitately 20-25% scale. end of the valuations upper equalized between

Of relevance to the differences particular viabil- writer constitutional concerning and the majority ity of the 1975 act in relation the extent equalization districts, of the out exhibit shows that the pointed there is between the 1975 act rough comparability valu- Bateman as to the where differences in point equalized ations of the to manifest themselves in districts begin sig- nificant school tax rates. This reductions effective course majority opin- of the strongly negates implication ion that the district as com- improves equalization, act with to an the court pared Bateman, justifying extent in our Bate- the condemnation decisions of regarding prior man in this as now overcome. respect our is to be d^awn from the rationale of lesson same redistribution, decision, the order of directing 1975 Robinson mem- and subscribed five written the Chief Justice court, 149-151, 155, N. J. at bers of and a com- effect of that redistribution the opera- parison act. The sum and tion of the 1975 substance an interim con- step court was to effectuate toward order in a state had stitutional aid which compliance What we did constitutionally been defective. adjudicated certain aid related moneys was take state to equaliza- of tax resources and order them re- per tion district pupil with the of distributed in accordance formula equalization so the Bateman Act. we said that that course doing would “to subserve the educational goal equality tend N. in J. sound at We as opportunity.” accepted addressed to us the Gov- there the contention principle of state aid (non-equalizing) the six categories ernor that not compatible to have redistributed “are which sought he re- Robinson educational criterion of equality with the whereas incentive formula is.” for the pupils, sources Ibid. objec identified the clearly

We thus could not have more with per pupil of district tax resources tive equalization Education Clause speci of the objective the transcendental — “an in 1973 Robinson educational fied decision equal for children.”12 opportunity 1975 Robin- out in were, however, careful to point

We son there was not conceived decision that the order directed Education a final of the implementation and perfect as minimal in step an interim Clause but as “essential and 154; Clause,” 69 N. J. at Education the enforcement of the full constitu- as toward end result of “positive step added). tional 69 N. at 151 (emphasis compliance,” statistical effect of However, of the examination with operation thereof and comparison court order not constitute 1975 act does shows that 1975 act full equal- in the direction of advance a significantly greater order, even crediting than the court ization of districts ratio (applicable valuation with a 1.35 guaranteed 1975 act percentage court order the after Under the only 1976-1977). for the 59.6, compared districts is equalized 63.7% such dis- act; for pupils the respective percentages and the 73.5%; percentages are as tricts against 72.2% districts are such valuations aggregate equalized 55% essential parity thus reveals against comparison 56.5%. 1975 act. and the court order as between the equalization under in 1976-1977 aid for current expenses Equalizing minimally is, $568,093,418, only the 1975 act total of opportunity equal educational do not doubt 12“But we precisely formulation [in the mind” for children was Clause]. 62 N. J. at 513. Education 490 of $551,080,454

above the comparable figure under the court order. amici who the

The in case have support plaintiffs tables of submitted statistics that the urban demonstrating districts, low in characteristically ratables per pupil characteristically high in non-school burden the tax on base as well as in number of children special educa- requiring effort, tional substantially fare better under court order than de- While, under 1975 act. shall more fully herein, later veloped effect of act in equalizing a constitutional sense cannot be a judged exclusively by comparison districts, effects urban vis a on vis non-urban there is broad unanimity opinion districts, urban that the for the reasons given, in are peculiarly equalizing need state aid education. discussion, if

In summation difficult present thesis that the order of reconcile the court impossible not a direction of of full only achievement step was opportunity of educational with the equalization position the defendants and the the enactment of the majority 1975 act has achieved the constitutional level requisite that regard.

Ill have dealt with the con- majority satisfactorily After of the 1975 above. deficiency stitutional act discussed under fact that more districts achieve noting equalization 465), than (note 4, opin- the 1975 act under Bateman p. say, ion is content peremptorily, comparison “certainly state aid effects of 1975 act and Bateman con- cannot be This given significant weight.” (p. 465). clusion rested on under the Commissioner’s power if in- compel budgets act to the districts raise their However, statu- conceding that the Commissioner’s adequate. to direct tory power deficient dis- “budgetary changes” trict direct an such power any includes increase of such a against the exercise district power budget, — low a district relatively per valuations equalized pupil unconstitutionally whose are discriminated pupils already of Robinson under the criteria 1973 and 1975 against the — decisions denial simply would be to exacerbate the existing of of educational equality to the in such opportunity pupils already districts. It would added strain on tax place rates inflated by bases of ratables enrolled inadequate per pupil. in 1973 Robinson (at 465)

The note that our majority p. if a were unable it was out that district decision pointed educational raise the funds to the provide requisite oppor- “the State must itself meet its con- tunity its pupils, 62 N. J. at 513. the con- obligation.” majority But tinuing cede the act contains no provision meeting that the this to address contingency exhort the Legislature problem. majority do matter as critical regard not the to the facial of act, constitutionality saying that the con- of local tingency fiscal never inadequacy “may occur.” With all due respect the majority, the latter observation ignores in record fact established before us that inadequacies have abounded in our educational in many parts State, see N. J. Super, at 249-252. It also our adjudication in decisions in ignores prior this case that (a) educational se inequality opportunity per denial of the guarantee the Education Clause; (b) discordancies tax resources a per the districts on among pupil basis denial of presumptively educa- equality tional opportunity the districts such by disadvantaged discordancies. has It been shown above that these pernicious continue conditions under the 1975 act.

One can with the the matter of agree majority educational in our schools not public has achieving adequacy heretofore been addressed Legislature compre- hensive manner reflected the 1975 act. It is salutary now been has done. But the matter of achievement of substantive excellence in the educational was process heart of the which led to the this action grievance filing

in the first instance. That consisted of the claim that Education 'Clause either implied equality treatment among or taxpayers “equality among pupils the State and that such equality is not achieved and cannot be achieved aby system of taxation which depends upon local existing tax base.” 63 N. J. at 509-510.

Basically, the latter contention was court upheld by this in the 1973 Robinson ease. As the we majority recognize, approached the issue before us the 1973 Robinson case as “the involving constitutionality statutes for the providing financing of N. elementary schools,” 63 secondary 480 (emphasis added), not the of different constitutionality methods of education or of theories imparting contending as to the merits of educational or comparative processes, goals unrelated to the matter of financing.

The issue before the court ever began since this litigation always tem, been, remains, sys- has the constitutionality of treatment of the districts respect fiscal of of edu- education and the effect thereof presumptive upon cational opportunities of The mere enactment pupils. 1975 act did not draw a curtain over the pre- irrelevance re- system of education or financing obliterate existing enacted in 1975. Nor lationship system to that did it, any or therein, idealistic educational aspirations expressed nullify prior of this court that there is a holdings denial equality educational one opportunity where district can draw on tax substantially greater resources per pupil education support than another district.

And so the issue not, fundamental before us has as one from might gather been majority opinion, transmuted into the more remote future of whether question particular will on particular districts future be shown occasions to be financed for the inadequately administration of their edu- cational function. The issue remains systemic whether the constitutional deficiencies of the Bateman as an entirety, plan twice adjudicated by court, have been eliminated 1975 act. The very of the court’s purpose retention of juris- diction over the matter to the present time has been to make certain that any statute measured adopted to the- up constitu- tional criteria we set in our prior decisions. In that sense the 1975 act does not off with start the ordinary presumption of constitutionality. The burden lies with its It proponents. not been has met. It is clear that the deficiency inherent the substantial continuance the districts of un- among remedied discordancies in tax per pupil is, resources unless corrected, fatal to the validity the 1975 act.

To hold this wholly act valid in the face of facts of record is to return to laissez- the disastrous era of legislative in school which led Robinson de- financing to the 1973 faire cision of this court.

IV The other constitutional patent defect of the 1975 act the continuance of the feature of “minimum” support to dis- tricts whose valuations are equalized so high as for the full qualify amount of current expense equalization specified aid A by the act. comparable but less invidious minimum aid feature the Bateman Act was expressly held unconstitutional in our 1975 Robinson decision and an order entered that such aid any appropriated for the 1976- year 1977 should be redistributed in accordance with the incentive formula the Bateman equalization Act. 69 N. 133, 149, 155. The minimum aid provisions of Bateman were in- less than vidious those of the 1975 act because the former went on a uniform per basis to all pupil districts, including those who qualified aid, equalization while the latter call for distribution only to those who do not qualify for full equal- ization aid.

Since the basis for our holding the 1975 decision was that minimum aid to all districts exacerbated the inequality produced by insufficient equalization of the districts as to rat- ables, 69 N. J. at and it has been demonstrated above of districts under the insufficient

that there is equalization minimum aid act, but to find the there no choice The -majority opin- 1975 act to be invalid. of the provisions on minimum aid of the act ion defends the provisions to eliminate steps the thesis that the act takes “positive and tax resources.” disparities per pupil expenditures gross above is evaluation contrary fully explicated 467). The (p. record this case. The majority rested on the confidently that minimum aid 465) out note on (at page also point will be million com- 1976-1977) $48 under the act as (after million aid $290 with the of such under the Bateman pared However, $163,885,000 Act. of the latter sum would only above Bateman have gone equalization guaran- districts level, above, to tee the balance as noted districts below going, that level thus also aid. equalization support receiving event, any aid to “rich” principle invalidity a districts when number of are “poor” substantial districts underfinanced, Robinson case, declared the 1975 con- must demn the minimum aid of the 1975 act. provision

V The last of the 1975 deemed aspect act vul- constitutionally nerable herein, is Section 25. noted earlier section, As subject to discretionary by the exemption Commissioner, im- poses totally arbitrary restrictions on the rate which dis- by tricts may increase budgets net current expense from year year. The formula fixed the act is such substantial number of districts would be prevented from in- their creasing at rate than budgets greater is compelled by normal inflation, without average substantive improvement of educational performance. If districts, most highly probable, increase their budgets annually at the maximum rate permissible, disparities in expenditure levels between districts spending at the statewide rate average and those spending substantially higher rates will never be reduced. This result is obviously at war with object of remedying major flaw found our court in the 1973 Robinson — decision in the dis- previous financing gross in levels as between the parities expenditure districts. the Commissioner his power exemp- Unless exercise basis, tion on a wholesale Sec- practically operation of tion object conflicts with the plainly purported act to ameliorate the court inherent principal evil this found in the Bateman Section 25 should be from exscinded plan. the act as unconstitutional.

VI It has been earlier indicated herein that the 1975 act is regarded as constitutionally correctible, without disturbing its plan and general scheme. Aside from min- eliminating imum aid and Section both of which support exscinding are steps feasible, readily key validation of the act in lies increasing guaranteed valuation per pupil current expense equalization support debt service and (and budgeted capital from outlay) ratio statutory (after of 1.35 times 1976-1977) the State valuation average per more, to a pupil figure realistically consonant with the constitutional objective of substantial elimination of dis- cordancies equalized valuations per above fixed pupil guarantee level. The object would be to meet principle requirements this of both the 1973 regard and 1975 Robinson decisions yet but not exact from the finan- cial burden totally out of proportion reasonable stan- dards as to what it can be expected to raise taxation.

Several considerations conduce to the view that increasing valuation guaranteed ratio from 1.3 to 2.0 would satisfy the constitutional requirement equality educational op- portunity yet to substantial degree not overbear prac- ticalities of governmental era capacity of fiscal strain. this ratio 2.0 times the State was that advanced average Byrne Governor in 1974 as optimal purpose was contained in early version of the bill13 which ul- was 1256, 1974, 13geuate, No. Section 3. also sup- the 1975 act. It

timately strongly enacted as and U. J. by amid N. J. Education Association ported have not claimed they Boards Association of School (although it to be requisite). constitutional un adopted If had been the ratio average twice the State State, 578 in en act, der the 521 of the 1975 districts State, all in the pupils of the enrolled compassing 98.17% umbrella of would have been covered of equalization in 1976-1977. To cov require tax per pupil resources all districts would be impracticable to include since erage terms of pupil districts in valuations highest equalized per situations, and the cost thereof represent extremely atypical to the would be excessive.14 grossly State of

The 1976-1977 cost of at the level equalizing districts have average valuations of twice the State would guaranteed resulted in a total contribution of state aid all categories $1,552,000,000, $1,131,000,000 of as against statutory $1,156,000,000 level level 1.3 and for the 1.35 (ap 1976-1977).15 after would raise share plicable It the State education the cost of to about 52%.16 equalized average against 14As 1976-1977 State valuations per $66,078 pupil, districts as Teterboro there such abnormal are Rockleigh (Bergen) $2,445,552 (Bergen) $80,129,986, with with $1,073,027. (Cape May) and Stone Harbor assumed contribution in 1976-1977 various 15The scale of State 1.3 and 2 is: levels- ratio between Guaranteed Categories Avg. All Valuation E.V. ($66,078) 86,000 $1,131,000,000 $ 1.3 000 1.35 1.156.000. 89.000 000 1.45 96.000 1.231.000. 102,000 000 1.55 1.293.000. 000 1.65 1.361.000. 109.000 1.75 000 116.000 1.424.000. 122,000 1.85 1.475.000. 132,000 2.00 1.552.000. results in a 16For the 1975 act drawn State con 1976-1977 (This cost of education includes tribution to the total 38%. Assuming legislative medium of choice ac complish as between equalization would districts be the gen eral scheme which valid act, found in all was other respects minimum (save support aid Section discussed a ratio of above), twice the State average would concluded be a reasonable accommodation of the practi calities the constitutional objective and valid thus constitutional solution to the problem achieving equality of educational It from the opportunity viewpoint.17 fiscal would full accomplish statewide substantially equalization tax resources within the limitations per pupil, practical pre sented districts by the referred above atypieally high the State’s its wisdom potential Legislature resources. of a than av may course choose ratio twice State higher or, mechanism which indeed, select other in sub erage, any stance an adjustment effects of tax resources per supporting to the in of what the 1975 act pupil equivalent equalization would at the basis. produce twice-the-State-average full is re- not equalization out that pointed

It should be a for accomplishment thorough as panacea garded education. An effective system of imple- statewide efficient essential Article II of act is toward mentation to come that to pass. take decades may it end. But that must as a constitutional im- districts meantime In the of the in local inequalities the brunt be relieved of perative court determined ad- has which fund-raising capacity thus, opportunity, of educational versely equality affect (applicable pensions.) payments the 1.35 level At teachers’ State Significantly, it was con- subsequent years) becomes it in 40%. peg Bateman, fully funded, con- the State’s templated would that p. vii, Bate- at See cost total education to the 40%. tribution said, Robin- in the 1973 Report. Weintraub Justice Yet Chief man finding [Bate- that act basis for a see no case: “We son obliga- funded, satisfy fully man], constitutional would if even 519). (62 J.N. at State.” of the tion funding provisions of the act the other is 17lt assumed equality. such as to dilute so be altered would 1973 Robinson tbe in tbe opinion, thorough- our equation as a whole. ness and efficiency An related practicalities consideration to the important however, of a itself, obtrudes the notion government in 1976-1977 the State about plan which would cost support $400,000,000 what the 1975 above to fund required fully is can However, act. the demands of constitutional disposition whether be accommodated governmental exigencies, see Brown v. Board Ed. 349 U. S. sociological, Topeka, 294, 301, 75 S. 99 L. Ed. Ct. 1083 (1955) (directing the enforcement all of .school "with desegregation deliberate economic, or here. The speed”), gov as fiscal difficulties in times, State, these call particularly ernment of this for such accommodation here. re if the proposed Legislature

Consequently, views of the two-times-aver by acceptance to these sponded minimal, as valuation suggested phasing age 1.3 2.0 to take in ratio from could be permitted change First, manner. minimum since the following place invalid, of mini $54,000,000 of the act provision aid for under full of the act in support provided funding mum that year would to be redeployed 1976-1977 be required level far as funds would those guarantee raise 2.0 guarantee The difference in the level between permit. made over just up the raised level mentioned could be five following of not more than school years period 1976-1977, the nearest annual year equal stages school fifth 0.05, year. 2.0 of no than the multiple reaching later in an stated required The formula selected would be to be amendment of the 1975 act.18 judicial raises 18While it is not a concern as to liow the State the equality obligation its of edu funds to meet afford constitutional opportunity, cational be observed result of the it should the — proposal writer’s of the of education to the a State share cost — by of of extent is no radical. The com the total means 52% Jersey prehensive study report prestigious Tax and New Policy Committee, 23, February submitted to Governor Cahill

YII above, Aside the from matters discussed accord reached is with the as the majority absence other material any of issue of fact relevant constitutionality which would jus- the remand tify and some hearing sought of by parties amici, and and the 1975 act is facially found constitutional in all such other additional argued respects. The contentions warrant some discussion.

Preliminarily, it is noted that fully is four since years the Law Division held Bateman Act violative of the equal protection of state provisos and federal constitutions of the Education of the State al- Clause Constitution. It most years three since we affirmed on the basis that holding of the Education Clause in the 1973 Robinson A decision. amount of great work, study, consultation has money unanimously financing recommended local education. State full Summary p. prop- Volume 17. The “[t]he Committee stated that erty major tax is the chief cause struc- [tax] defects ture. highest near-highest The tax is all measures or either the harshly regressive.” p. Summary nation. It vi. Volume explaining funding its recommendation for full State the Committee said: disparities spending per pupil exist, Wide now to such due regional living, differing factors as differences in costs educa- problems, varying among tion education standards districts. response expenditures influences, per In pupil to these diverse actual heavily by underlying are affected differences in valu- taxable per pupil. funding program enough ations A must be flexible recognize among yet inherent differences districts be ex- pressed quality in terms of a uniform of education which eliminates quality. effects taxable wealth as factor in educational Summary p. Volume The concordance of the views the Committee with those hereto- expressed by this as court to the fore effects of differences in district quality opportunity taxable by on the wealth the educational offered readily will district noted. present previous governors and the two of this State have representations strong Legislature public made to the and the urgent reducing proportionate need of share government, including education, burden of. local to be borne property precepts local tax. Effectuation of the constitutional expressed opinion objective. in this would course tend toward that invested the other branches of in an by

been government to with compliance effort achieve court’s adjudication. and efficient education The of almost one and thorough half million school children and their in the successors decades ahead lies public balance. The educational State and local has been government establishment state tension and from year year during to uncertainty how much it could money over period litigation of this has Planning on its vital function. count for performing Whereas the and frustrated. disorganized been periodically Com- has called for the statutory heretofore scheme October 1 missioner of Education to advise the districts could they as how much state aid year of the to prebudget two on, possible past count that assurance has not been how least, because of as to uncertainty years partly at our decisions in respond would Legislature prior or fiscal indeed, litigation, requirements that a result act itself. There can doubt as hardly any has education in this State process public ongoing suffered and is presently suffering. this conduces to conclusion

All of the foregoing if a matter of now, public policy, sound should court us and on facts on record before reasonably possible extent notice, determine the judicial which we can take or not meet constitutional the 1975 act does does which can be legis- indicate how it definitively repaired requisites, not, firm and does and apply to the extent latively assure, if all possible, remedies legally acceptable of an and the implementation litigation end to early be- education public and constitutional adequate July 1976-1977 (commencing year the school ginning that the has approached in that court spirit It 1976). mo- issues the several posed resolve attempted oral argument. tions, briefs record for a further of the asserted need matter the attack separately respect approached needs to be fund- from that on distinguished and standards as on goals The former aspect is ing. simpler resolution. grava- The men on of the assault is statutory goals that the edu- (a) cational constructed system purportedly 1975 is by the act until not administrative complete regulations are adopted (b) such preliminary drafts proposed regula- tions as were when the briefs extant were filed were deficient establishment not or establishing providing “uniform pupil performance standards” in skill areas basic claimed to be for effective necessary and com- citizenship market, decision, the labor petition see the 1973 Robinson N. 515, 62 J. at and of an evaluation system pupil per- formance in relation thereto.

All us now the new statute is before is statute. The objectives. standards and No other defines statute goals, under review in the 1975 than Bateman was Robinson case we said there about horta and therefore what “inchoate and to administrative then in tory goals as regulations” prepara N. now relevant. 69 J. at 145. There is no hesi tion is not tation in the educational standards and pronouncing goals, II of in Article act valid and facially guidelines themselves of attack on susceptible any hypothetical a This set of facts which he on new record. might developed amici, much conceded Education NAACP Committee New and ACLU of who (Newark) Jersey, gen otherwise erally the attack the act. The standards support upon goals, obviously stated the act are guidelines comprehensive, to the ef objective pertinent achieving thorough ficient education and of administrative susceptible toward that end. There is no sound reason implementation Rail why we should not now. adjudicate Regional so See Cases, Act Reorganization 102, 144, U. S. 95 Ct. S. L. Ed. any 2d 320 (1974). It will of course be open

one to to demonstrate in attempt the future that the system, as or applied operation, are constitu- regulations,19 regulations adopted 19The were Board Education January 7, 1976. id., defective, 69 N. tionally 15A-155, see J. at but that will be a different from this. There is litigation therefore no occasion present to consider the constitutionality the State Board regulations goals, methods and guidelines. as to whether a factual record what question beyond is, us, since the 1973 Robinson been, decision has before or necessary to demonstrate appropriate that the funding and fiscal features of the meet legislation or do not meet the Education Clause can best in the explored context of consideration the merits of the opposing arguments to the respect constitutional attack on aspects those law.

A. main line of constitutional criticism of One the fiscal advanced of the statute before is that aspects us there is the act to satisfy in the admonition of 1973 nothing the Robinson in decision that order to meet the Education Clause * * * only State must “define the not the educational obli- but the local school “compel districts to raise the gation” to achieve moneys necessary” any such stated standard, N. J. at 519 in (emphasis original), unless the State itself If, in Id. acts the matter. at 513. arguendo, the contention the standards have been goes, act, defined adequately by the there is in act to assure that can nothing districts or will needed; be able to raise moneys if the districts cannot raise the there is money the act to nothing require the State district; to raise the funds for the ergo, the act on Clause, defaults the Education even as did Bateman. The stated, premises are, it is believed, correct. It has expressly been so noted earlier in this opinion. But the conclusion of on that unconstitutionality ground not does fol- necessarily low.

The 1973 Robinson decision is misread if it inferred therefrom that gist the unconstitutionality found the court was, alone, the absence of a mechanism to deploy failure remedy districts moneys particular sufficient fixed for a prescription thorough a legislatively to achieve education. As has been at developed length and efficient above, the court found what Constitution demands and the 1973 Robinson statewide system decision is a lacking and efficient education so as financing thorough children, afford of educational to all equality opportunity a rescue merely isolated apparatus salvage particular districts found system deficient where the statewide is equi- financed. The for the tably court’s as to the need comments it would opportunity pro- State to the educational identify express adjudications vide context of the be read in the must failure benchmark noted the prime hereinabove ranging was the wide unconstitutionality N. J. at per pupil”, dollar “discrepancies input 235-246, and that the principal see also 118 N. J. Super, correlations cause of those was discordant discrepancies re- and their districts between the educational needs N. tax bases. 62 J. at spective invalidity heart of the amici that the

Plaintiffs and argue act, discrepancy Bateman, now also district, they opportunity desire in dollar input per 1975 act as to the demonstrate this thesis on remand to Pashman, Justice colleague, Our applied. dissenting with them. agrees that will be said above it apparent has been

Erom what to discrepancies with. facts as The agreed thesis is not before forth in the exhibits are set amply in dollar inputs are facts, which establish the A is not needed to us. remand above that the wide disparities shown It has been conceded. of causes, are but not the symptoms, in expenditure dollar — basic cause that the most deficiency the constitutional the dis- levels is expenditure in disparities wide the existing discussion, wealth See per pupil. in taxable cordancies supra. we vari- 1973 Robinson observed that some decision in district were expenditures legitimately expectable

ables costs, area because of in special variations costs educat- kinds of districts ing particular pupils right further” in children the education of their “go advancing all provided the mandated other responsibility State’s districts 62 N. at was diluted.

What concerned us in the 1973 Robinson ease was the extent of startling disparities ranging expenditure, 1971 from 14 districts with current be- expense per pupil low $700 with over 118 N. J. Super. $1500. districts at '242. As noted above, this, us, constituted prima facie evidence of denial pupils to the equality opportunity correlation, districts And the lower end. the strong by and with districts cor- large, low-wealth low-spending roborated in our minds the of discordancies in inculpation tax per-pupil wealth as a of the constitutional principal cause deficiency. were effected per of tax resources pupil

If equalization one minimally above as obligatory, indicated the extent run, aid of effective with the long could that over the expect standards enforcement of the goals, and thoroughgoing act, Article II of the set forth in objectives would be in district expenditures hitherto extreme variations districts would lowest spending reduced and the substantially did not oc- If this satisfactory performance. be achieving still per- in the cur, shortcomings and demonstrable remedies, of administrative sisted exhaustion notwithstanding edu- in the efficiency thoroughness to absence of pointing for con- would remain accessible cational the courts process, relief. stitutional there is no plaintiffs

But one can readily agree excessive existing realistic dis- promise of reduction in the paper the districts among parities pupil expenditure if more substantial equalization remedies of 1975 act — automatic or some per equivalent tax resources pupil — latter necessity is not into effect. remedy put to hold the any purporting is basic to scheme absolutely of educational promise opportunity. equality Attention substantive is addressed to other constitu- amici. tional mounted challenges by plaintiffs supporting of their from gist is that the sufferers position principal the present are the school children unconstitutional in the heavily districts, urban assert that their they plight is not note They ameliorated the 1975 act. significantly the substantial children from dis- “weighting” advantaged homes for in the Bateman provided equalization formula, 62 N. 1975 act. see in the eliminated is form purporting They analyses graph offer statistical district high invidious correlation demonstrate that educa- pupil) high wealth valuations per (equalized versa, was more pronounced tional and vice expenditures, under Bateman than under May court order. They challenge use of the year as the base for prebudget State current estimating expense aid and also the limitation to the 65th under the percentile support “State limit”. Com- plaint also as to the failure of the 1975 act registered overburden”, N. compensate see 69 J. at “municipal 150-151. The retention aid expensive categorical pro- grams on cost basis rather than on an per pupil equaliza- tion basis is assailed to the low-wealth furthering inequity Moreover, districts. attack Section of the act plaintiffs on the it creates unwarranted barriers low- ground against very districts to reduce the spending attempting disparities vis a vis expenditures which this high districts spending court, above, as noted saw main benchmark as the of Bateman. The writer has unconstitutionality hereinabove his contention that Section expressed agreement assertion, invalid. make the which Finally, plaintiffs well-founded, that the mini- also been found above to be has the 1975 act are invalid. mum support provisions

B. tendered and amici The between comparisons by plaintiffs in effect and the 1975 act May court order relation to to districts are not determinative distributions in constitutional effect. Note was taken above of the fact that such tended comparisons to refute the defendants position the 1975 act effected of valua- sufficiently equalization 00111!; tions However, as the districts. among order was not the court’s of an concept absolute constitutional standard or even aof necessarily well-considered state-aid plan. incidence among the districts of the distribution which would have resulted therefrom was simply the fortuitous outcome of an interim device by the court to eliminate designed only minimum obviously objectionable feature support those redeploy funds the constitutional direction equalization resources supporting per The more pupil. pertinent comparisons for present are purposes between the 1975 act and Bateman, whose invalidity defendants assert been has cured by the new statute.

C. No constitutional compelling implications are perceived tendered of treatment of urban vis vis non- comparisons urban districts under former and new legislative plans. Equality educational under the opportunity guaranteed Education Clause children in all manner of districts. What is of in that significance is how regard low-expenditure districts vis a vis low-valuations-per-pupil ones high fare under the respective plans. There are low and high districts in both respects non-urban as well urban as dis- tricts.

A more is made when plaintiffs appealing point complain about the failure of the 1975 act to take over- municipal formulating burden into account equalization plan. 62 N. J. decision, Both 1973 Robinson at in the 519, and 1975 Robinson 69 N. J. decision, 150-151, recognize we between interrelationship school needs and non-school needs as on the same dependent tax base, local obvious that an overload of non-school burdens (welfare, police and fire protection, health and sanitation and the like) in some urban districts to suburban compared or rural dis- tricts may seriously former in disadvantage defraying cost of education. But here is not mono- again, problem chromatic. We out in pointed the 1975 Robinson decision that some municipalities with high valuations also have pupil per high non-school burdens.' 69 J.N. at 150-151. Plaintiffs and amici supporting have advanced no pro- feasible specific, posals as to how a state formula school-aid could fairly uniformly reflect such; municipal overburden as nor do they suggest a how remand would be in that hearing productive regard. gaveWe thought the matter for interim remedy purposes in the 1975 Robinson case but abandoned the effort unproductive. as 69 N. J. at 151. event, any problem posed it is concluded that not

legislative, constitutional. mechanism Tinkering of local local taxation support government by name of of educational would fostering equality opportunity raise problems to the considered in the cognate question 1973 Robinson case as to whether the system financing education in this in the state equal protection violates constitutional sense. After a ef- out that pointing judicial fort in that direction would entail the whole challenging historic scheme of local ex- this State as government pected defray all the normal burdens such government, albeit with bases, tax we ad- unequal rejected approach, verting the “convulsive if home rule vul- implications nerable” on such 62 N. J. at 501. grounds. system rule its attendant inherent variables

The home all tax bases and local needs of governmental between local well established in this State when the Educational kinds was our became a 'Constitution in part Clause first become, more pronounced, even had Those variables as part intact readopted Clause was time the Education ju- be sheer of 1947. It would therefore Constitution embrace the now to for the court dicial constitution-making education proposition that a and efficient thorough must adjust capacity as the framers envisaged in terms of the respective school finance-education districts to municipalities the corresponding abilities or disabilities of press- burdens. Those problems, finance their non-educational are, entirely surely independently as exist ing they of' the Clause, Legisla- Education for the attention and are ture, courts. mu- fail because not áttuned to 1975 act does not law, conclude as matter One can so overburden.

nicipal on re- be able to establish might whatever plaintiffs facts mand.

D. to the is their plaintiffs’ approach Also “urban” germane on the elimination factors weighted pupils assault in Bateman20 and the substitution therefor in provided the 1975 act of the additional cost factors for pupils education classes. special response Again, appropriate for the is that the matter is one of purely policy Legislature, and not one of constitutional dimension.

E. Another raised with substantial is challenge plaintiffs act, of the 1975 respect categorical program to aid aid for included under Plain- transportation costs that head. tiffs that since one of the thrusts of the cogently argue prime Robinson decision is the insufficiency equalization particular, whereby plaintiffs 20Ín stress the factor each “AFDC” (one family welfare) weighted by child is on whose is an additional N. A. .75 units. J. S. 18A:58-2. enrolled aid should fall pupil, categorical tax resources as per than The it is rather asserted specific equalizing. position subject that it is to the same condemnation we visited upon aid under Bateman the 1975 Robinson support minimum decision. has All of plausibility. a certain the items argument

under to may broadly aid subserve the categorical said function If of state aid of education. absence equalization districts, or among inadequate presumptive equalization, hallmark system, why of lack of a and efficient thorough categori- should not the to the principle apply equalization debt cal aid well programs expenses as as current service capital outlay? bottomed on two can be

Answers posed query can be argument of the equalization grounds: logic (a) reasons, well within overextended; are colorable there (b) aid for structuring categorical legislative policy judgment, grounds. rather than along specific equalizing of tax re- full view Pirst, equalization that absence of whether and absolute criterion sole sources is the per pupil are met is not that here Education Clause the demands of the al- one presumptive absence is as regarded Such espoused. such default. it is light, contributor to major, beit of aid some kinds analyze making the rationale necessary to one can determine before rather than equalizing specific stamping pro- warrants objective whether the legislative of educational oppor- effectively denying equality as grams condemnation. meriting judicial and therefore tunity forth in Section set weightings class special A glance at all in- demonstrate that these 7, supra) note sufficesto (see or another way special in one having volve abnormal pupils, at- educability entailing special respect handicaps seen why conclusive reason is legis- No expense. tendant make specific compensation judgment lative policy fac- extraordinary special-expense on account district of such concept the “weighted pupil” alternative to tors, logical Bateman, fatal should deemed to basic of educa- equality tional opportunity.

The case is even aid for stronger state transportation This is not “educational” expense. expense in direct any Ed., Sills, al., Bd. et Reg. sense. West Morris al. v. et Cf. 58 N. aid, 474 (1971). Without districts are pe culiarly burdened or relieved in this by the regard fortuitous the distance from circumstance of school to home of enrolled pupils. districts Urban have substantially less such expense than rural per pupil districts. It seems entirely reasonable for decide Legislature to to defray specific such costs as and where accrue. No they impingement upon the Education Ed., West Clause discerned. See Morris Bd. Reg. is et v. al. Sills, al., et supra. P. take above, to the “State plaintiffs exception

As noted sup- 65th limit” at net current port percentile expense budget statewide, as well to-the year as use per pupil prebudget made point simply is stated. Districts purpose. for the current require budget year. Prebudget years funding times, are, in about below these current budget 8% 10% if a district’s run years. Moreover, actual needs above the districts, all 65th should be percentile geared aid needs, to the subject arbitrary district’s not limited 65th percentile. has been stated that these are relevant con-

Although it whether act determining siderations in provides adequate valuations, nevertheless, in the context of an equalization will be an adjustment that there assumption equaliza- level, an acceptable tion base to these matters are regarded determinations, legislative policy legitimately influenced administrative considerations. As some extent to use year, the actual current prebudget expense budget known when year budget for that current making going budget on. The current is then in a un- only formative and

511 certain state. Administrative convenience is thus served the prebudget year. using

toAs the 65th percentile, represents policy judg- ment as to what a district fairly representative should spend, — raised from the median of all districts a measure liberally — the Legislature could have adopted to one somewhat above that. Given in other adequate equalization aspects of the formula (see no supra), constitutional infirmity is perceived use 65th in and percentile of itself.

VIII final concern is that of The matter of remedies. No point discussion of this subject seen extended of the light above as fact that the views to the expressed merits all are not in those of a controversy respects majority matter, one’s approach the court. As mat- practical to the ter of remedies must be today’s decision geared the 1975 act is in all respects court that valid and court of May order of the is set aside. In that affirmation that light, accepting majority the court’s validity declaration of act full funding assumes 1976-1977, of the act for the school year writer expresses joinder his the court’s complete determination that be fully act must funded. he Part joins in Accordingly, IV wherein the majority opinion juris- court retains diction of the cause for the purpose applying sanctions full funding enforce for the school year act 1976-1977.

Pashman, J. (dissenting).

INTRODUCTION review The Court has chosen to consider and the constitu- L. 1975, the Public School Education Act of tionality c. 212 Intended as a 1975, Act). (1975 legislative response

513 Cahill, order, Robinson v. 69 May J. N. Court’s 1975 Act a new IV), introduces (Robinson (1975) of this Unlike the four-year progression in the case. phase matter, on this the Court hearings passes judgment earlier on an Aid Law of alternative to State School 85; N. 1954, c. A. amended, L. J. 8. 18A:58-1 et seq. means securing as the (Bateman Act) “thorough efficient” education in education clause compliance 1947, N. Const. VIII, Art. the Constitution (1947), IV, the Court must if so decide the 1975 doing, ¶ § (cid:127) transcends constitutional infirmities were found Act which it must Similarly, in its determine whether the predecessor. which the standards were posited Act meets the Court’s parameters earlier efforts to define “thorough of free schools. system public efficient” case, of this evalu- it must be posture the unique Despite holdings. In Robinson v. previous our light ated in the Cahill, I), New (1973) (Robinson N. J. Jersey’s education, which relies on heavily financing public to be unconstitutional and taxation, was found incon- local of a constitutional mandate “thorough with the sistent education. the Recognizing con- system public efficient” from have resulted the sudden imposition would fusion which education, of financing public scheme a new statewide action permit to the judicial Legislature Court deferred the noted the Court in its objections original the to correct Cahill, N. J. 196 (Robin- Robinson v. (1973) opinion. Nonetheless, to assure expeditious implementation son II). 31, December the Court chose system, aof constitutional and retained compliance a for legislative deadline should warranted afford relief it be judicial to jurisdiction a early Such need became apparent circumstances. by the action by Legisla- in the absence definitive the year last Cahill, v. J. 33 (1975) (Robinson Robinson N. ture. the Court immediate action in taking While declined III). in the exigencies budgetary to school alleged deference 51-1 a March it scheduled for hearing to determine

process, by which relief could afforded. This means resulted most Court’s recent opinion in the which ordered funds the minimum aid support earmarked and save-harmless Bateman Act provisions -be distributed according the incentive equalization aid formula of that Act. Robinson IV, 69 N. supra, at Because Court itself acknowledged interim order a only was temporary far solution and was from a perfect N. J. plan (69 151), its continued effectiveness was made con- “subject forth tingency set in this opinion, namely the possible eventuation of timely and constitutionally appropriate legis- action.” 69 lative N. J. at 155. invitation to judicial legislative

This action accepted was and resulted in the Legislature the 1975 passage — focal point Act of the instant ease. ostensible of the 1975 Act is, as enunciated its purpose prefatory provide: paragraph, thorough public schools, a and efficient of free a [F]or implementing system, revising parts program aid such statutory supplementing Jersey Title 18A of the New law Stat-

utes. relies a achieve this Act on purpose, To two-pronged reformation of consisting public school effort financing and the formulation of much-needed definition of “thor- The first of and efficient.” these ough objectives is under- itself, taken in the Act whose Article III purports rectify constitutional found in objections the Bateman Act. While the guidelines defining and efficient” “thorough are education in the similarly included 1975 Act under II, Article their implementation primarily delegated State Board of Education its local counterparts. See at 520. infra, We are now asked rule upon constitu- tional this Act. validity

515 the Court 29, 1975, letter to dated September Gov- ernor Brendan T. wrote: “I herewith Byrne respectfully submit the ‘Public School Act Education of 1975’ for your review to determine whether it with the complies constitu- tional mandate and may permitted to into go effect Thereafter, next school year.” the parties filed motions for relief with our respect 1975 order May (Robinson IF). Court, regu consistent constitutional and this

While advisory “will limitations, has held not render latory Park Ten (Crescent function in the abstract” or opinions Y., N. 58 N. J. 98 Realty Equities Corp. Ass’n v. ants not believe that doctrine precludes I do this con (1971)), motions. None of objections sideration of these addressed exist in matter. The this doctrine the instant appears same in the hear before the are the earlier parties Court those they their claims are consistent with which ings; advanced; and the issue which seek upon they previously — of New determination Jer judicial constitutionality — is same as that financing system essentially school sey’s I-IV. I Moreover, in Robinson find the actual inter posed an ob various adverse so that parties sufficiently ests would be jection rendering advisory opinions inappropri review judicial ate. the Court itself Finally, contemplated May of a alternative to the order as part legislative IV, Robinson N. at 144 n. sufra, litigation. this order for relief from our May applications The present another of the cause of action. phase existing represent need initiate a new cause of action therefore Plaintiffs 1975 Act. challenging specifically which I more Nevertheless, for the reasons set forth below consideration of I would defer Act fully, I for a Instead, this time. would remand plenary Court at constitutionality as to the effect and operational hearing Act. I DEFER REVIEW OF THE CONSTITUTIONALITY OF

THE 1975 ACT BY THE COURT AT THE

PRESENT TIME In our most recent case, decision this we ordered limited relief for plaintiffs by minimum redistributing aid save- harmless funds to the according aid formula of equalized Rohinson, the Bateman IV, Act. 69 N. J. supra, at 150. plan, This while intended as first towards the elimi- step nation of inequities which had been found inherent in the Statewide education was public conceded readily be both interim resolution far “short of a perfect N. J. at plan.” 151. ¿he Therefore, 4 of that decision, footnote majority established a which the order contingency Court’s upon might he vacated: implementing- legislation financing If for and the attendant admin- process completed 1, 1975,

istrative before October but not permit by by date, time to review thereof the Court the Court then, light plan submitted, will of the nature entire may permitted g-o 1976-1977, consider whether it into effect terms, subsequent years with or without or be deferred to if ulti- mately 4], sustained [69 Court. N. J. 144 n. at meaning this The eommonsense statement con- clearly intention time: Court’s veys alternative to.the Rohinson IV Any legislative order only after had operational was to become been reviewed this Court. This prerequisite and approved follows from the Court established for the role which itself in the instant “the case, namely, designated last-resort guarantor IV, command,” Rohinson supra, Constitution’s 69 N. at 154. such turn, any

2. In review of legislative alternative’ was submission upon to be contingent proposed legislation make in a form which would thorough consideration possible. legislation and the ad- Implementing attendant financing ministrative were to have been regulations completed prior our review. Through we avoid requirement, sought a review process whose hypothetical and nature fragmentary would frustrate the consideration which this ob- legislation viously requires deserves.

3. To assure that any legislative the Bobin- alternative to son TV order would be in time forthcoming for preparation of the 1976-1977 school 1, we budgets, set October a deadline for the submitting legislation. The Court did envision that not mere submission of an alternative educa- tional would itself plan the set satisfy forth in contingency 4. footnote Our May 1975 order was to only be vacated after the Court had an and, had to review if opportunity warranted, sustain the statute.

4. the Court reserved the Accordingly, option either any immediately submitted permit be effective legislation or to defer and implementation subject legislation the further consideration. To Court did suggest retain this option negate would the Court’s powers of review in further this case would contradict the language Robinson IV of the footnote in which we expressly reserved option. such an

Therefore, in Robinson IV the Court not established only the basis and- review its alterna- scope any legislative tives, also but in which posture such would legislation have to be before review presented could proceed. Tracking 4, language legislation footnote have to be would for which plan” “entire legislation “implementing and the attendant financing administrative process [had TV, Robinson completed.” supra, N. at 144 n. been] must Consequently first itself thres- Court address to the hold of whether the 1975 Act question an appropriate for review. posture

The 1975 Act was enacted on two September 29, 1975, 1, days before the October 1975 deadline fixed this Court Robinson IV. Act contained con- Although provisions the distribution of cerning State school aid III) (Article terms, the contours of general and provisions defining, II), and efficient education no thorough (Article had been the Act implement regulations promulgated to no had been to fund it the time moneys appropriated In of the forth in enactment. set light contingencies its us amici footnote before plaintiffs supporting argued that the was not in a for review. proper posture Act to review the facial of the constitutionality choosing today rejects this contention. With Act, majority administrative” argument to the “attendant respect review, must be prior majority regulations completed observes that: they adequate Whether are valid and await later determina- must constitutionality directly

tion can of the in no event affect [Ante, Act. at 454 n. 2]. to the majority confines its examination Accordingly, all constitutionality Act and abandons ques- facial tions the of its concerning adequacy subsequent operational Ante, at 454. The and impact. dissenting opinion concurring agrees Conford with I find such Judge this proposition. and and intermittent review to both partial unsupportable in the instant case. inappropriate noi whether the the Court is Pirst, the issue before or guarantee proscrip- some constitutional Act contravenes with the constitutional tion, fully but whether it comforts clause. education the State the upon by mandate imposed the VIII, 4, 1. review N. J. Art. To Const. (1947), ¶ § done, con- fashion, as the has majority Act a piecemeal I, we held: from Robinson where a clear stitutes retreat upon directly imposes local or the State role Whether the acts product government, the Constitution com- end must he what the any system which district of the State mands. A of instruction thorough com- and falls constitutional efficient short the is violation, obligation is the the reason mand. Whatever government fails, government rectify If State’s it. local carry compel government act, if cannot must and the local it burden, continuing obligation. the State must itself its meet 513; emphasis [62 N. J. at added]. repeat assign obligation We that if the State chooses to its under government, the 1875 local amendment so State must do a [62 N. J. plan continuing obligation. which xoill the State’s fxilfill 519; emphasis added]. Obviously, Act which constitutional will not facially satisfy the State’s continuing if obligation, legislation fails to redress the identified in Robinson I or is wrongs otherwise found to be unconstitutional as applied. J, in Robinson

Second, this Court held expressly State has a constitutional duty to “define in some discerni ble way the educational obligation” mandated the Constitu tion. N. at 519. As will be more fully discussed be low, the Legislature confronts this II Article obligation Act. While this article to define purports “goal” aof and outline thorough efficient educational and “major elements” of in the system, so only does broadest of terms. Consequently, administrative regulations necessary are clarify and implement the frame statutory work. The Act itself there a recognizes that exists need for to fill regulations in the broad interstices remaining general of the statute. language the Act dele Accordingly, to the gates appropriate State local the tasks agencies “goals establishing objectives consistent legislative guidelines” defining “standards performance necessary to indicate achievement of the goals 2b objectives.” (3); § also see Without these additional standards and ob §§ jectives, the scheme is neither in statutory form proper for review constitutionally nor sufficient. In last respect, the instant case to cases where analogous implementing review judicial were found to be regulations prerequisite because, the statutory without such regulations, mandates were too and vague general permit judicial too construc v. F. Boyd, tion United States 491 2d interpretation. 1163, 1169-70 v. 1973); Cir. United States Approximately (9 Tuna, T. F. .79 383 659 D. Supp. (S. 633 Yellowfin 520 Cutters, Meat etc. v. Amalgamated Connally,

Cal. 1974); 737, 1971). F. 758 D. C. Supp. (D. 337 II, Article of guidelines standing Third, amorphus interpret courts which must to the alone, insight little give com local boards which must to the them and little guidance scant court afforded reviewing with them. ply admin bounds of determining proper assistance sufficiency. Act’s constitutional discretion and the istrative from the Court regulations of Similarly, prevents the absence fiscal Article provisions determining adequacy are needed order III. educational quality Standards of aid the State school formulae whether the Court to ascertain Moreover, without at with constitutional dictates. comply 1975 Act well regulation, might administrative tendant Giaccio v. of constitutional vagueness. level approach 15 L. Ed. 399, 518, 86 Ct. 2d 382 U. S. S. Pennsylvania, 589, U. 87 v. Bd. 385 S. Keyishian Regents, 447 (1966); 629 Tinker v. Des Moines 675, L. Ed. 2d S. Ct. 17 (1967); Dist., 503, 393 U. S. 89 S. Ct. Community Ind. School 733, Ed. 2d 731 (1969).1 21 L. di- under circumstances review of the Act these

Finally, Court, both the and intent rectly language contradicts implementation, with 1975 Act 1it should be noted goals promulgation sufficiently specified and stan statewide out respect. problems yet ade> Failure another dards could raise potentially exposes goals quately local such standards formulate provisions of school districts intervention under the remedial to State upon upon (§§ 14,15) hoc rather than II ad determinations Art. based published adequately pre-existing, properly defined standards Nothing might in the which local boards conform their actions. whether 1975 Act itself a local school district determine enables public operating “thorough and schools. efficient” fairness, therefore, process of due administrative Standards require regulations goes might promulgated before the act Ruiz, 1055, 199, Morton v. 415 S. S. L. Ed. into effect. 94 Ct. 39 U. Surprises (1974) ; Davis, 2d Law “Some Administratvie 270 Case,” 26, (1975). Ruiz L. Rev. nn. 27 75 Cohim. 827-28 Cf. Clifford, (1975) ; v. Avant v. North Wild N. J. Donaldson Education, (1974). Bd. N. J. wood Robinson IV. 69 N. J. as 4 of at footnote expressed n. 4. of attendant reasons, I find that promulgation

For these review a for both administrative is regulations prerequisite noted, its As constitutionality.2 previously statute and this phase the time motions were filed the current initiating had not yet Board promulgated regu litigation However, I now take judicial lations Act. implementing of were 7, notice that on 1975 these January regulations Therefore, at docket ficially promulgated (Reg. #3). is now- least with to the 1975 Act respect this requirement, for review. ripe as just

As noted in footnote fiscal implementation ad- a a valid scheme important prerequisite legislative to similarly one regulations. ministrative Consequently, might full a considera- funding as condition require judicial However, tion Act. and difficulties of the the practicalities Within me legislative process contrary. impel below, the timetable which I such a task could not set out Thus, realistically be accomplished prior plenary hearing. I would the trial permit court to consider this legislation which been even regulations though have promulgated has necessary appro- its been funding yet operation full would, I priated. however, retain as does the majority, Act con- funding as condition precedent finding stitutional. my appears consti- view that to concur 2The Justice Chief promulgation upon

tutionality “the final of the Act conditioned purpose legislative regulations fulfill effective to standards and Ante, (Hughes, J.C. norm.” at 470 and meet the constitutional deciding joins majority concurring). Nevertheless, re- he Act, constitutionality even of the and then sustain facial view majority any give though whatsoever fails to consideration said regulations constitu- of the Act. administrative Review to the validity necessarily an examina- must entail 1975 Act tional (A). implementing regulations. III See Part these tion of infra. II REMAND TRIAL CASE TO COURT FOR DEVELOP-

MENT AOF RECORD FACTUAL I Although find that the 1975 Act now in a is proper posture review, I defer review nonetheless would such and Court would court for instead remand to the trial development a factual record to the effect operational and action, which of the Act. This course of constitutionality would a include timetable to facilitate consideration remand, is one I in our which have advocated previously efforts to adduce the content “thorough and of a meaning IV, N. efficient” J. at education. Robinson 69 supra, 162-65 I a remand to (Pashman, J., find such dissenting). be if necessary a hypothetical Court is to avoid rendering and fragmentary sketchy decision based an outdated and on record.

A time, combination of fac- passage paucity tual subject-matter data the new of this con- litigation tribute for an factual record. When the updated need constitutionality of this financing public State’s were education first came before this Court in we pre- but with both a record a concise sented voluminous factual comprehensive of factual Robinson v. summary findings. Cahill, 118 N. J. Div. Super. 1972). These (Law findings concerned, other levels of state among things, funding, of local ability additional provide districts de- funding, ficiencies in the system, disparities in local expenditures per pupil, ultimately, constitutional infirmities which were inherent in the State’s school scheme. financing record which was a compiled, thus afforded factual basis for the resolution of the issues. pertinent legal

While data was which in that analyzed decision early may still provide starting point studies, transitional its continued usefulness is factors of mitigated by timeliness and If else, relevance. nothing so casts passage many years and the on the statistics conclusions of antiquity a pall the unavailability drawn from them. Due to which can be time, evidence at the much of the originally certain statistics first was even current when to the trial court not presented 118 N. J. at 236. Super, submitted. 1971 informa-

More relevance of the importantly, very tion has been undermined of an entirely the introduction new which scheme. The information was legislative compiled evaluate the Bateman but outdated, Act only limited use in those and formulae of evaluating provisions the 1975 Act which differ legislation. from the earlier short, the cir- inability of this reflect changed information to cumstances undermines its in the present proceedings. utility Act remand, without our

Finally, evaluation in- frustrated of available due lack may effectively to the in satisfying the costs involved concerning formation Of education. the statis- for public standard constitutional Court, the Com- only presented by tical data the before This be current. missioner of can even pretend Education information, lacks the however, is itself and fragmentary Furthermore, the to be while probity necessary persuasive. an which the 'Commissioner figures presented represent has statistics, has unex- their relevance impressive array gone of addition, other accuracy and their plained unchallenged. information which be have importance may might equal been overlooked.

I remand for a on the plenary hearing would therefore which of the Act. The constitutionality plenary hearing I recommend would the functions: perform following would sense of

1. It the supplementary augmenting would, factual which was in 1972. This the record developed for course, revised presentation figures necessitate and and total (school non-school items the equalized such and local rates, per pupil current tax Statewide non-school) teachers, staff, other facilities the ratios levels, expenditure and the in each district cost pro- and to pupils programs essential services and also re- Tiding It programs. would an assessment which been taken to quire steps have cure the which were deficiencies previously recognized. evidentiary function by would hearing perform related particularly information eliciting operations This and 1975 Act. would implementation permit of data which provisions collection of the Act concerning were either absent its or altered to de- predecessor from some gree.

3. At the heart of the would be func- hearing an evaluative tion, which would determine whether the 1975 Act comports with constitutional mandate to provide “thorough efficient” education. While the can imagination numerous avenues of suggest least, inquiry, very trial court should consider whether level of funding aid formulae under Act are sufficient assure levels; per pupil expenditure adequate whether local tax re- sources are per sufficiently equalized; whether pupil sufficiently the content of the regulations define implementing constitutional educational whether opportunity; the Act proves an effective mechanism compelling deficient or standards; recalcitrant districts to comply statewide whether specific problems, such as municipal overburden, absence factors, use of weighting the prebudget years, and the State support spending limits, increase undermine the Act’s constitutionality. See Part III. infra

I should note that the majority is not blind to the con- that I siderations have which impel me to remand listed an evidentiary On hearing. the contrary, it states: explicitly We hesitated to entertain the motions. No lower deter- court underlying mination of review; this issue was before us for parties opportunity had had evidentiary no to avail an themselves of hearing at [Ante, which a record could . . be . 454] made at Nevertheless, the majority proceeds review the constitu- tionality of Act, on that ground these considerations “outweighed desirability are. a reaching speedy Ante, constitutionality decision as to the enactment.” on Conford with the this agrees majority 454. Judge at a in his amount point, adding separate opinion “great work, been study, money invested,” consultation and has educational establishment . . . has been in a “public state of . . during tension . uncertainty period of and litigation” this and that has “[planning periodically been Ante, 499, disorganized frustrated.” at While these considerations may be I cannot legitimate, agree that they hasty justify Act, review of the in a partial and intermittent fashion on the basis an incomplete and seriously outdated record. Nor do they justify prema- turely placing this Gourt’s in- imprimatur on an unfunded, complete and I on constitutionally suspect act. As have noted occasion, another the possibility of “administrative con- fusion,” “tension” and ac- “uncertainty” does not warrant of a ceptance for the less-than-adequate scheme legislative financing of public education: great A certain amount of confusion and a deal of dissatisfaction undoubtedly question would result. . [But] . real . is: Can Court, consistently obligations uphold' with its Constitution, constitutionally guaranteed rights enforce the trade the equal oppor- hundreds of thousands of children educational tunity possibility avoiding meeting some difficulties budget-making question local I deadlines. do not see how this can any way negative. III, answered in supra, but in the [Robinson 67 N. 43]. IV,

See also Robinson supra, 69 N. J. at 167-168 (Pashman, J., concurring dissenting). Cleveland Bd. v. Ed. Cf. LaFleur, 414 U. 632, 646, S. 791, S. Ct. 39 L. Ed. 2d 52 Richardson, Frontiero v. (1974); 690, U. S. 677, 93 S. Ct. 36 L. Ed. 2d 583 (1973). Moreover, as I stated IV, in Robinson when legislative scheme does not fully comply with the mandate, constitutional it should not be sustained by this ‘Court no matter how much “work, study, consultation and has money” been invested: thorough obligation providing efficient a [of by legislative by the met efforts education] is not unsuccessful

of plan demanded to achieve the results branches to devise a executive may Constitution, fide by bona those efforts arduous and however the Jersey all not at it matters of New been. To the children have oppor- provide constitutional failure to whether State’s consequence guaranteed aof the Constitution tunities merely by-product intransigence policy of dead- or of deliberate government. 173]. J. at [69 TS. branches lock within coordinate best in- acted in the I do not believe that the has majority by finding children of this State terest of the school constitutional, a the absence of 1975 Act be facially I effect. can- full examination of its evidentiary operational constitutionally how an act which is ques- not see sanctioning Were interests of those children. tionable will serve the a after or plenary Act to be held unconstitutional hearing time in which review fully were there be insufficient school the Court could year, the Act to the prior upcoming New Jersey’s still school children protect interests in effect until such time remedial order to continue issuing Act or the corrected the deficiencies Legislature as the the Act, its review of Issuance respectively. Court completed interim, remedial orders redress violation con- undeniably stitutional within the power this rights IV, 146-147, Robinson N. J. supra,, Court. (and therein). cited cases light alternative course of IV), action Part ill-considered (see and premature ap- infra of the 1975 both proval Act seems unnecessary conceiv- detrimental to ably very whom the pupils majority wishes help. Nevertheless, I too believe that the matters before us as should resolved expeditiously possible con- stitutionally adequate system public education should be at the earliest date. implemented possible Therefore, I would that the evidentiary and all propose subsequent re- hearing proceed view should with a accordance strict timetable which would assure completion the review in a fairly ex- I fashion. would peditious Accordingly, schedule the plenary on or about 1976 and to be hearing begin, February 1. March would completed by The solicit hearing presenta- Court, tions amici now before the well as parties and trial as others should the court determine the necessity or relevance of information. The additional would re- hearing a sult decision which be court should filed by 10. decision, March On basis of the this Court then could consider and hear properly oral on arguments the constitu- of tionality the Act on or about March 22 and a decision be would rendered on or April about which timetable I have is proposed one admittedly which a on places premium expeditious and action burden on the who parties must make factual presentations. The first of these “can be ameliorated by diligence on the part III, State and local officials.” Robinson 67 N. supra, at J., (Pashman, That dissenting). the timetable would still permit State local school officials to their prepare 1976-77 school has budgets been acknowledged by the ma- jority itself which has also selected April as date for judicial concluding review in the event that the 1975 Act fully funded. Timetables for budget deadlines were III, back pushed last year. Robinson supra, 67 N. J. at 42. If necessary, this be done may this again year.

Ill THE REVIEW OF CONSTITUTIONALITY OF

THE 1975 ACT noted, I just As would have deferred ruling upon con- and, the 1975 stitutionality Act instead, would have re- manded for an evidentiary hearing. The majority has re- jected this approach has chosen to review the Act. Hav- ing registered dissent my regarding majority’s decision to examine the facial constitutionality of the Act this time, However, I here. could stop two very important con- siderations me to comment impel further on the constitu- tionality this legislation. briefs and at oral

First, their argument, plaintiffs objections amici numerous the constitu- raise supporting They of certain 1975 Act. portions tional validity some uncon- provisions being facially attack vigorously They contend that others be shown to might stitutional. Consideration of their contentions invalid-as-applied. only absent from the Not majority’s opinion. conspicuously address amici’s fail to ob- majority plaintiffs’ does the Act, a regrettable the 1975 it displays degree jections Because not even them. temerity by acknowledging I find and because these contentions many this failing meritorious, I feel to discuss them obliged to be potentially portion my dissent. identify discussion I to hope means this by Second, sus- 1975 Act which are constitutionally aspects those trial court guidance the and, thereby, provide pect at plenary hearing. to be raised the the issues concerning the trial upon some criteria which provide hope I also of the Act. bouyancy the constitutional test may judge objections by plaintiffs raised examine the first I will II and then Article Act respect amici with and Article III. regarding contentions their analyze Goals, and Standards Guide- 1975 Act: II Article A. Evaluation: Procedures lines: Enforcement I, held of the State’s that, part this Court Robinson and efficient thorough to provide obligation continuing con- schools, must define the the State free public system by the Consti- required opportunity the educational tent stated: the Court tution. Specifically, assign, obligation repeat under its chooses to if tbe State We by government, do State must so local 1875 amendment continuing obligation. To that plan State’s will fulfill which way the ob- discernible educational some must define end the State spelled ligation out content has never . . The State . opportunity. constitutionally 519] If. J. at [62 mandated educational observes, the majority correctly As un- Legislature finally dertakes to do this II Ante, Article of the 1975 Act. at

Section of that article defines the overall aof goal and efficient thorough that said by stating goal provide Jersey, regardless . . . shall to all children in New geographic oppor- of socioeconomic status or location the educational tunity prepare politically, economically which will them function socially society. in a democratic Section 5 elaborates upon general statement out- those lining elements which State system of education must contain in order to with the comply “thorough efficient” elements, standard. These intended to serve as alia, guidelines Act, inter implementing include, establishment of educational goals both and local level 5a]; “instruction intended to attain- produce the [§ ment of reasonable levels of proficiency the basic com- munications and ; computational skills” efficient ad- [§ 5c] ministration evaluation adequate procedures [§ 5h] 6j]- [§

Article II of the 1975 Act then delegates the more detailed formulation of statewide goals standards to the State Board of Education Board), after (State consultation with the Commissioner of Education review (Commissioner) and the Joint on Committee the Public Schools. It [§ 6]. further establishment local delegates educational goals, and objectives standards the local boards of education (local boards). 7], Finally, Article II provides [§ review of periodic these statewide and local goals and stan- 8, 9], dards additional monitoring procedures [§§ 10, 11, and for remedial powers to be when used [§§ 12] necessary correct deficiencies in system. 15, the 14, [§§ 16],

The majority blithely reviews these provisions and con- cludes : thorough is meant a What efficient education has now defined; goal stated;

been the of such education has been [Ante, elements of which been is to consist have enumerated 463]. at majority any reaches this conclusion considera without tion whatsoever of the attendant of the Act. regulations Ante, 454 n at 2. I of Article agree provisions II, when viewed do not the constitu separately, transgress tional enunciated Court precepts by this previously (e. g., I, Robinson at supra, N. J. and that 515), delegation of responsibility contained therein is clearly permissible.3 I, Ante, Robinson supra, 510; However, 62 N. J. at as I stated have these without full previously, provisions, regulatory implementation, are insufficient constitutionally they because fail fully comport the mandate education Supra Therefore, alone, clause. Part I.4 standing II Article the Act cannot be be constitu sustained. To tional, the statute requires proper and complete regulatory implementation. Furthermore, its attendant Act and only TV, specifically fact, in Robinson 3in I noted that officer, Board of the State Education and its administrative statutorily Education, empowered Commissioner to formulate quality promulgate statewide standards educational rules regulations implement standards, 18A:4-10, these N. J. A. S. 18A:4r-23, :4-15, 18A:4-24; 1975, 6, 8, 9, 212, 10, 18A L. e. §§ of. they uniquely qualified so, light special are to do but of their expertise TV, supra, educational matters. Robinson 69 N. J. at concurring (Pashman, J., dissenting). 162-63 regard, Judge position 4In this Conford misconstrues amici, (Newark) Education Committee NAACP and ACLU New Ante, Jersey. (Conford, D., concurring t/a, at 500 P. J. A. and dis- senting). readily these amici concede the facial constitu- While tionality they guidelines, should not be understood as simul- taneously conceding constitutionality of the entire 1975 Act. As amici state in their brief: nothing There statute itself which enable a local would operating “thorough school district to ascertain whether it was system public schools, nothing and efficient” and there is which degree would enable Court to determine to what the various provide failing constitutionallly adequate local districts are quality 10], of education to their students. [Amici brief at regulations, when taken must together, meet re- additional and quirements. legality thoroughness the regu- the lations just are important as as the legality thorough- ness the Act itself. The verbiage the the regulations is seat of power. accordance with my expressed efforts assist trial court before which a would plenary hearing held, I set forth series criteria which by recently promulgated implementing regulations be evaluated. may

(1) Regulations Must Be Specific. It is well settled that the education clause requires State or its agents “define in some discernible way educational obligation” mandated Robin- Constitution. I, Ante, son 62 N. supra, J. 519; at at 456. Accordingly, they must statewide standards of a prescribe constitu- minimum tionally education which local school quality districts must adhere. These im- especially standards are where State portant chooses to assign much of its re- sponsibility local Without government. such standards there is no way of whether ascertaining are, school districts fact, level educational providing which opportunity the Constitution mandates. Opinions of this Court and the of the 1975 provisions itself recognize Act the importance of minimum establishing standards of performance for measur- ing evaluating educational opportunity af- being I, districts. Robinson supra, forded local school N. IV, 519; 516, supra, Robinson 69 N. J. at 159-65 (Pash- J., IV, Robinson man, concurring dissenting). supra, 69 N. 175—76 Clifford, J. at (Mountain JJ., dissent- 212, 5a, ; 6, L. c. 2b(3), 7. The ing) majority §§ well this fact when it recognizes out that points must define content of constitutionally edu- required cational “so that fin some opportunity discernible way’ the Ante, this obligation be made scope apparent.” [will] Levin, “A at 456. also See Eramework Conceptual Ac- countability Education,” School Rev. 363 (1974). It clause, the with the education that, fully comply to follows Board which regulations supplemented must be Act to enough that are specific and standards forth goals set mea- and evaluate local efforts meaningful way a provide local performance. sure Provide Standards Must Regulations

(2) of Proficiency and Levels . of Performance and standards goals being specific, In addition sufficiently 6 Act must be of the under promulgated § are, fact, pro- that local districts to guarantee rigorous minimum educational oppor- constitutionally viding of constitutional oppor- broad contours tunity. The of our language opinions. inferred from the tunity can be the significance former characterized Supreme Court education clause as follows: providing legislature duty purpose impose a was to on the Its schools, capable system thorough af for a and efficient of free necessary fording every to fit child instruction as is such * * * Ashworth, citizenship. ordinary v. [Landis duties (Sup. 1895)]. N. J. L. 512 Ct. Elizabeth, Ed., Coun., 55 N. J. Elizabeth v. City Bd. meaning this Court elaborated upon 501 (1970), and efficient”: “thorough every duty Thus it to see to it the Commissioner system. provides thorough This neces- and efficient

district sarily school materials, adequate physical includes facilities and educational proper [55 and N. at 506] curriculum staff sufficient funds. I, a thor- we defined the contours of Robinson Finally, manner: in the following efficient ough guarantee understood must be embrace The Constitution’s contemporary opportunity which needed in the educational equip competitor setting role as a a child for his citizen and as a [62 515] market. N. J. at in the labor In its definition of what constitutes “thorough effi- education, Act substantially adopts cient” § above language. suf- statutorily that, constitutionally follows to be It with some ficient, degree statewide must define standards facilities programs, specificity, minimally required which each local must provide and attendant staff district meet the of a and efficient thorough in order to mandate without system. Certainly, planning, educational requisite staff, op- of an educational facilities and provision “equal N. J. these at 516) impossible. Although portunity” (62 be sub- may and inflexible (and standards need be rigid with determinations policy in accordance ject change in some must they specify, State agencies), appropriate for each fashion, adequacy levels of constitutional workable of the above elements. 5.§

I draw attention to one of stan- special particular type — of type dard standards Without this pupil performance. will of of standard it be difficult to determine the success ac- in individual school districts their preparing pupils that, con- and lives. I find citizenship productive tive form to both constitutional statutory requirements, standards under 6 must contain regulations promulgated § of pupil performance. of pupils

These that the contemplate standards necessarily a will a of proficiency district attain reasonable degree mathemati such basic simple skills as writing reading, skills cs.5 A these basic system school which fails to impart success, students, of its with at a reasonable degree least imply 5I “thorough system do not mean to that a and efficient” public provide education should not or need not its students degree proficiency a See, with reasonable in non-basic skills. contrary, IV, opined system Robinson where the Court that “a public high education which did not offer school education would hardly thorough be [62 efficient.” N. 515] J. at is undoubtedly falling short of its under obligation the edu cation clause.6

I agree that majority . . . in- “diversity will Ante, evitably exist” school among separate districts. However, not mean certainly this does that failure assure a constitutionally minimal education to children from can disadvantaged justified districts be or tolerated on the basis of To “diversity.” achieve the consistent degree success which is contemplated by the and efficient” “thorough — standard, everybody must be involved in this project teachers, administrators, children, advisors and parents, army educational consultants. If effort takes a child from a welfare family slum, him in living city places a classroom and overcomes thoroughly efficiently education he is streets, New will be getting Jersey proud its commitment of all to the equality people. Eormulation and enforcement of minimum standards are performance particularly important light pupil recent the National Assessment of Educational findings stating 6In that local school must a “reasonable districts show degree necessary imparting of success” in to their students certain imply skills, and fundamental I do not intend to the education requires every clause of the State educational student prescribed proficiency, although able to meet levels of such goal certainly Rather, establishing laudable. I envision that after proficiency,” minimum statewide “levels of in each “basic of the skills,” appropriate agency either the State Board or other some will formulate “levels of success” which school districts local must imple- 14, meet in menting regulations. to order avoid sanctions under 15 and §§ their 18A:7A-14, N. J. A. 15. 8. Such “levels of success,” necessarily 100%, which will be below somewhere will upon assure that State initiated sanctions in are based failures system the rather than failure of individual in students testing process” pursuant “annual Clearly, conducted of § 10 Act. responsibility formulating the initial for the various “levels proficiency,” success,” performance of “levels of and standards of Legislature or, by implication, rests with with the administra- agencies Legislature delegates authority. to which the its J. tive N. (1947), VIII, IV, Const. Art. § ¶ 69 N. at 144-45. This does however, mean, they may responsibility. not [69 abdicate N. J. 152 and therein.] at cases cited

635 which reveal Progress reductions in levels alarming of writ- our ing among youth and in performance light severe found the trial court to in of inadequacies exist many New school Jersey’s 118 N. J. districts. at 248-57. Super, The fact that of disparities levels proficiency may stem — from economic, social, or racial factors geographic or that greater may resources necessary educate children with — deprived backgrounds does the failure fix justify minimum 252-53; such standards. 118 N. J. Super, 243, Guthrie Stout, Kleindorfer, Levin & and Inequality Schools Klein, & McDermott (1970); “The Cost-Quality Debate School Einance Litigation: Difference,” Do Dollars aMake Prob., Law <& 38 Gontemp. 415 In Robinson I (1974). Court so held by stating that reason for the “[w]hatever violation, obligation the State’s to it.” rectify N. J. at 513 (emphasis supplied). necessity for of promulgating per- pupil standards

formance and levels proficiency only derives not from the our language opinions but from 1975 Act as well. 5, lists, Act specifically as one of the elements” “major § of a and efficient thorough schools: system public produce Instruction intended tbe reasonable levels attainment proficiency computational in tbe basic communications skills. 1975, 5(c)] 212, c. § IL. ultimately performance Act considers the That the of a “thorough one measure system as efficient” pupils 2b (3), out Sections is borne language [definitions “standards,” order,” “goals,” “objective,” “administrative 8, 9, 10, education pupil”], 11(b), “state compensatory Section for defines 11(d), 11(h). example, “standards” stated levels process proficiency “the used de- and objectives being the extent which are termining goals met” Section (emphasis added). expressly requires “uniform, administer a Commissioner to State- develop school,” wide of each evaluating performance “shall which be based in on part testing annual achieve- shill areas.” (emphasis supplied). basic ment in § standards and the State procedures,” “goals, promulgating must with these statu- the Commissioner comply Board and mandates. tory Must Provide Remedial Regulations

(3) for Plans and Corrective Action mechanism for its standards Without effective enforcing edu- for and objectives, legislative plan financing public fail to satisfy continuing cation will obligation Therefore, either the Act itself or its implementing State.' must enforce- necessary means of regulations provide ment. 3b(5) requirement recognizes

The 1975 Act § 16. Section through pro- it in to fulfill purports §§ Commissioner, reports review of the upon if that vides sections, to pursuant preceding submitted evaluations show sufficient progress failed to a district has finds that standards, he must direct the goals reaching pertinent a remedial and submit to prepare local board of education approves If the Commissioner approval. his plan he if, however, implementation; then its supervises he plan, must local board deficient, order the to be he finds the plan action not be taken corrective should why show cause a that, if plenary 15 states after Section pursuant § take necessary still finds it the Commissioner hearing, budge- action, necessary to “order empowered he corrective in-service district, school . . . order within the tary changes or Where these ... both.” teachers programs training Commissioner can recommend are inadequate, sanctions action, follows: Board appropriate take Board, determining district . school . . The State on notwithstanding providing thorough education, and efficient power any contrary, provision shall have other of law to the plan specifying remedial to issue an administrative order plan may budgetary education, which include the local board of appro- changes hoard determines he or measures the State other priate. Nothing appeal right any party herein shall limit the to 15; Superior em- [Section the administrative order to the Court. phasis added] recalcitrant, local board becomes In the event that the § an order from the Su- Board to obtain authorizes the State board to comply local school Court the perior directing 15. under the administrative order issued § the to as “crucial these remedial Identifying provisions they finds that majority the plan,” success the legislative Commissioner on the two-fold impose continuing obligation Ante, Board, State’s representatives. and the State as the the content 459. This obligation monitoring at includes and insur- the constitutionally mandated evolving, each pupil “that over the State years ing throughout offered an receive education shall be to equal opportunity standard.” constitutional as will meet the of such excellence and on- Ante, admits, this is “great majority at 459. As Ante, going responsibility.” and the State Commissioner then enables the

The Court by finding enormous responsibility to meet this Board may such “as power” vast grant have been “a they given Ante, at 461. On fulfill obligation.” be needed to given contention that the power basis, rejects the Court make “budgetary Commissioner to and the to the State Board an increase to compel the power does not include changes” local authorities. above that fixed in local school budgets undermine the limitation would such a Reasoning make the finan- local districts authority compel State’s man- the constitutional satisfy necessary cial commitments scheme, the Court legislative date, thereby emasculating concludes: inadequacy failure from a that an stems But is clear where power resources, given then the to the Commissioner fiscal changes budgets does include to effect local

tbe State Board locally budgets beyond power amounts deter- to increase such wisely any power be exercised Such must course mined. subject judicial review, always but there such exercise will power is no doubt that under terms of Act of 1975 such [Ante, at 462] exists. that, I constitutional, While to be agree the State’s legis lative scheme must delegate agents authority to its order increases in I local school Legis that the budgets, doubt lature, in fact, to confer intended such the Com power upon or First, missioner the State Board. authorizes Com § missioner or the Board “necessary to undertake budget e., (i. ex interchange line but it does not changes” items), pressly Second, mention increases. limi budget the stringent tations imposed by 25 on annual bud increases the school § a get reflect legislative intent to that diametrically opposed found the Act fails to in what majority. Finally, specify manner and from whose pockets agency-ordered such budget increases are to be Had to con paid. intended Legislature fer power upon Board, the Commissioner or the State probably Nevertheless, would have addressed problems. these without remedial local the State power increase budgets would be unable to effectively ameliorate those deficiencies arise which or from the failure solely local board’s primarily to prepare adequate budget.7 To summarize with Article II: In order to respect survive a constitutional Article II of the 1975 challenge, Act and its regulations, attendant together, taken must (1) formulate goals standards of with sufficient performance specificity to provide means for measuring evaluating efforts; local (2) develop procedures effective for deter- whether mining local school are, fact, complying districts with statewide standards, standards of including pupil per- reasons, I 7For similar would find that the State Board also empowered and the Commissioner must be to direct local boards modify goals, objectives (§ 7) or to alter their standards goals where such and standards are with state- either inconsistent “visibly geared (§ (3)) or wide standards 2b mandate” thorough I, system. supra, of a and efficient educational Robinson 62 N. at 516. formance, establish mechanism for local compelling and (3) fall remedy they school districts to deficiencies when below standards. such Article

B. III: State School Aid: Formula

Equalization In addition to the State define the educa- requiring tional opportunity Constitution, educa- mandated tion clause a financial on part also demands commitment State, the State. of its overall Specifically, part obligation, must that “local guarantee effort the State plus aid will yield to all the the State that level of edu- pupils cational Robin- opportunity” which the Constitution requires. I, son supi-a, Therefore, N. J. at 519. with respect to the fiscal provisions Act, the 1975 litmus test constitu- tional validity is whether assure its that each provisions school district has funds available to provide a con- adequate stitutionally sufficient education for all its students. test not, contends, as the whether the fiscal majority provisions the Act “afford sufficient financial support public education that will from emerge implementation Ante, the in plan set forth statute.” at 464. This latter the test is unreliable. the is By plan presuming legislative constitutionally valid, the fiscal the test requires only provisions provide If, the plan sufficient funding. however, the plan were be constitutionally suspect, found the test would no fund- longer workable the mere since ing of constitutionally deficient scheme would obviously not satisfy the State’s financial commitment. case,

In fi- satisfy the instant the State its purports nancial the responsibility through equalization support pro- vision and the other State aid formulae contained in (§18) III Article curiae Act. Plaintiffs several amici to the argue contrary that these fail to provisions comport with the State’s constitutional I will discuss their obligation. in contentions the enumerated below. sections 540 ; Current

(1) Equalization Support Expenses 18) (§ Tax Resources Equalization versus Equalization Per Pupil Expenditures amici heavily upon Defendants curiae supporting rely 18 for their claim wide dis- that the Act alleviates the § parities in district which have from expenditures resulted discordancies in their tax bases and which were identified I Robinson as “the de- cause of the constitutional principle IV, N. J. ficiency.” 515; N. Robinson supra, see at 141. Because State aid for and budgeted debt service set capital outlay formula (§ 19) support utilizes the State 18, forth in the ap- comments are following equally § to those plicable provisions. 18,

Under the formula set forth the amount State § aid first to which a will be entitled is determined by district per the district valuation dividing equalized pupil8 and then “guaranteed per pupil” subtracting valuation designated from 1.0000. The fraction is resulting quotient In district “State ratio.” order to obtain exact support amount of aid which district will under State receive provision, the “State ratio” is then support multiplied by lesser of the district’s net current expense budget (1) or prebudget year resident enrollment times (2) the “State limit.” limit” defined support support “State 65th net current percentile expense budget per pupil for the when all prebudget year districts’ are ranked figures from low to which high. impact the “State (§3). sup limit” has on aid port will be discussed general Infra, at 551. below. “Guaranteed valuation means per pupil” equalized aggregate 8An valuation an assessment of district adjusted produce equalized ratables or true market value for seg., Appeals N. J. A. district. See S. et 54:1-35.1 re Ave., Inc., (1961). Kents Atlantic 34 N. J. 26-27 This figure is then divided the number of students enrolled equalized district’s school to obtain the “district valuation pupil.” per

541 times 1.3 each after the 1976-77 school year year) (1.35 en State valuations average per assessed equalized pupil 18 rolled schools. The intended purpose public § is to make available amount district to each student that 65th expenses current of the statewide excess (but dis which would be available if the percentile) presumably trict an 1.35 had assessed valuation of times equalized average assessed valuations. valid, The majority seems without accept almost § I discussion. find to be “acceptance” premature this without sound justification. At grounds upon least two exist which the equalization formula of fall. support may § First, this provision may not reduce the cur- sufficiently rent tax- disparity respect school districts with to their among per resources pupil redress constitutional adequately objections identified Robinson I. Second, the provision may not, in fact, guarantee constitutionally dollar- adequate inputs-per pupil the State’s neither poorer districts. While contention has been matter, as a proven facial both are suf- ficiently plausible to merit full evidentiary hearing. contention,

As to the first our have identified the opinions of tax resources disparity per enrolled pupil among school districts as one primary causes of current con I, stitutional deficiencies. Robinson 62 N. 515; J. supra, at IV, Robinson 69 N. J. supra, Therefore, con pass muster, stitutional any legislative substantially scheme must reduce these disparities. Act regard, represents improvement over the Bateman Act. Never theless, it still fails to alleviate much For disparity. instance, number although the of districts whose tax re sources are equalized guaranteed valuations under (59%)9 Act substantially the number exceeds such figure slightly higher 9This would be if one were to base these guaranteed go calculations on the 1.35 ratio which is to into effect year. Ante, (Conford, school § after the 1976-1977 18. See at 485 concurring D., t/a, dissenting). P. A. Bateman under the it still equalized districts (27.2%), Act falls of the short total number of districts by Similarly, 41%. the number of in such districts falls short of the pupils total number of students aggregate the equal 32.7% ized assessed in such valuations districts falls short of the total by Even if minimum aid were to be support 50.8%. eliminated from to Act, the would continue equalization well statistics, below levels. Based on required these that, likely upon remand, the trial find the court will that not Act does a sufficiently achieve high degree equali zation the among districts to In alleviate disparities. his concurring dissenting opinion, Conford discusses Judge Ante, to objection this the 1975 Act 476-477, at length. at —485 D., 493. J. A. (Conford, t/a, concurring P. and dissent . aTo I ing) large extent, am philosophically accord with that discussion.10 agrees that, failing 10Apparently, also Justice Chief per pupil, equalization of tax resources substantial effectuate Ante, 470, 473- at a constitutional scheme. short Act fa^s Nevertheless, noting for accommodation “there room joins majority government,” exigencies he to the fully implementation day put of a constitu until off another would Jersey’s rights plan, of New constitutional tional vindication equali concept of substantial enforcement children and school Ante, majority, among at Like the districts. 474-475. school

zation juncture, perfectly satisfied, await further ac this he seems — likely part Legislature! will not action which on the tion longer. respect, forthcoming. I can no Three due wait With all be years passed memorialized in Weintraub Chief Justice have since equalization bring of tax I need about substantial Robinson years gone resources; trial court iden four have since the first IV, In Robinson the Chief Justice himself these deficiencies. tified unequivocally important principles forth in set reaffirmed these infirmities, clear in the face such Even constitutional decisions. separate occasions, on three Robin restraint has exercised this Court again delay I, III. would be a II and For the Court clear son px*otect rights duty constitutional of this Court’s violation would, pro fact, to a of this contribute citizens date, At “accommoda of our Constitution. this late found violation represents justification government” exigencies a weak to the tion obligation. abdicating constitutional this Court’s' I However, contention, would one step to the second go Brother and my require further than dissenting ex 1975 Act and relatively guarantee adequate equalized as well as tax res penditures per pupil equalized per-pupil from principles ources.11 This stems set requirement forth in the various opinions in case. I, Robinson “dollar example, input per pupil,”

“guaranteed valuation cri- per pupil” provided primary terion for measuring legislative compliance the educa- tion clause. This criterion was a supported hy trial court that there is a finding substantial correlation between finan- cial input quality of education. 118 N. J. Super. 223 passim. Although the entire need re- discussion not be here, peated to recite a helpful of it: portion cases, spend money per pupil most rich districts than more poor districts; per pupil; spend money rich districts more on teachers’ salaries professional rich districts have more teachers and more per pupil, manage staff and rich districts this with tax rates that poor districts, despite “equalizing” are lower than aid . . . Other input buildings, equipment, factors school include text books and library ample facilities. There is evidence to show the correlation quality facilities, between wealth of these and that severe inadequacies many poor Super, exist in districts. [118 N. J. at 237- 38, 249] Chief Weintraub, Justice writing the Court in Robinson I, expressly adopted the trial court’s finding: significant ... t [I] is nonetheless clear that there is connec- expended quality tion between the sums opportunity of the educational proposition accept quality . . . Hence we opportunity depend upon of educational does in substantial measure invested, notwithstanding impact dollars the number of require perfect equality. 11The Constitution does not As a matter fiat, expenditures equal only up of constitutional such must be adequacy. Beyond that, levels perfectly local school districts are spend program through free additional sums on its educational (69 3) local efforts N. J. at 141 n. may and State statutes authorize J, supra, do them to Robinson so. 62 N. J. at 520. unequal may factors, upon or students be because other natural 481] N. J. at [62 environmental. been much While there has debate concerning degree canj which affect expenditures on education the quality Klein, McDermott education, g., see e. Cost-Quality "The Mahe a Debate Einance Do Dollars School Litigation: <& Law Mostel- Prob. Contemp. Difference?”, 38 (1974); &ler Education Moymhan, eds., On Equality (1974); Guthrie, Stout, Levin <& <& Schools Kleindorfer, Inequality Coleman, Educational Equality Opportunity (1971); adequate can little (1966), there doubt that financing a necessary effective educational system, even condition for Klein, & one. McDermott if not 429-40. supra sufficient held on these Chief Justice Weintraub Relying findings, that, of other the Court suggestions, in the absence relevant basis of would school aid on the legislation evaluate State between school districts success in reducing discrepancies its :12 their dollar inputs per pupil had been found constitutional demand The trial court discrepancies input per did in dollar the basis of met and pupil. so on problem agree. in We We deal with the those terms because input plainly and we shown dollar is relevant have been because compliance measuring with the con- no viable criterion other 515-16; emphasis N. [62 added] J. at stitutional mandate. criterion, this its dis- majority recognizes Although brief: dollar is input notably cussion of requisite input say dollar under these circumstances the We cannot that equal pupil pupil per . offer each an . . will not be sufficient to [Ante, required by opportunity at as the Constitution. educational 464] pupil inextricably adequate input per question is 12The dollar specific goals discussed and standards to formulation related Therefore, supra II. a determination to in to relation Article IV, supra, Robinson must formulation of the latter. former 69 await J., concurring dissenting). (Pashman, 162, N. J. and at n. 3 This an unfortunate statement reflects emasculation of the State’s sufficient its responsibility provide funds meet a constitutional concurrent abdication of obligation, Uourt’s to oversee the function. duty legislative ques may here tion whether input pupil is not the dollar levels per Robinson whether mil be In but adequate, they adequate. IV, Chief Hughes importance Jurtice reaffirmed the primary of this “dollar input per factor equating concept J. 69 N. at 141.13 pupil” “expenditure per pupil.” that In itself, Robinson I es- unnecessary the Court found it tablish what dollar would precisely pupil level of input per meet its face the constitutional standards because “[o]n no statutory scheme ap- under [then [bore] consideration] opinions, separate 13I Justice and note that in their the Chief Judge asserting position, Conford seem to from this now retreat validity judging that criterion for constitutional sole produces equalization 1975 Act it of tax whether substantial Ante, per pupil. (Conford, D., t/a, A. resources P. J. at 489-481 concurring dissenting). Ante, 470-471, (Hughes, at 473-474 C. J., concurring). Judge argues from Conford this follows disparities existing “[t]he fact that most basic wide cause expenditure per pupil.” levels is the discordancies in taxable wealth rejects Ante, input per pupil” adequate at “dollar as an 503. He equally important ground alternative criterion on the “symptom” deficiency. not a Id. “cause” of the constitutional following: First, perfect only response, even I need note may all of the equalization not resources root of tax eliminate disparities and the constitutional deficiencies of the current “causes” public financing. instance, For school ab- in the State’s problem equalization fails address the of tax resources solute problem everyone “par- municipal' overburden, a which admits is a Ante, 494; Ante, inequities. at 508-509 current tial” cause concurring dissenting) ; IV, t/a, D., Bobmson (Conford, A. P. J. I, 150-51; supra, ; N. supra, J. at Bobinson N. J. at input per Second, Super, or “dollar whether at “symptom” N. 118 pupil” “cause,” it still must be or a raised to is called every adequate district this State order to level school provides oppor- that educational school district assure that each Finally, language tunity mandates. Constitution which the per input pupil” speaks opinions terms of both “dollar our g., I, supra, “equalization E. Bobinson 62 N. J. resources.” of tax IV, supra, N. J. 515-16; at 141. Bobinson at for educational oppor- to the mandate equal relation parent failed guarantee 62 N. That the statute to tunity.” ap- was equally levels of per pupil expenditure adequate : parent satisfied unless be said to be could not mandate The constitutional unlikely proposition suppose level lowest we were to performance happens the constitutional with coincide of dollar beyond attributable lowest level are and that all efforts mandate obliged do. was than the State to do more local decisions visibly geared Surely existing statutory not public thorough system of and efficient free be “a

mandate that there between the of all children in this state instruction schools eighteen years.” ages 516] N. J. at [62 of five from that markedly differs today us before situation no I Act is longer because Robinson presented as the Bateman Act facially inadequate clearly Never- inputs per pupil. dollar attaining adequate respect on a this Court’s imprimatur theless, place we should Rather, should defer rul- we statute. constitutionally suspect support constitutionality equalization upon ing has evidentiary hearing produced until after provisions of these operational impact as to the determinations factual provisions. and Save 18(c) Minimum Support

(2) § Aid Harmless (§§ 56) district shall less that no receive Section 18(c) provides than support expense equalization current 10% assure provisions The “save-harmless” “State limit.” support aid 1976- receive less in total State that no district shall 1974^1975 year 1977 than it received during (§ school aid for 1977-1978 than one-half nor less in total State 55), what received in 1974-1975 and of the difference between year receive current what it is otherwise entitled to in the 56). (§ IV, Robinson we found similar flat provisions grant Act

contained the Bateman to be inconsistent with the

547 of educational left goal opportunity they because equality ratios of tax arbitrary resources un- “existing per pupil affected.” 69 N. J. 149. In a at world of limited resources and serious wealth and disparities expenditure levels of districts, local these forms of State aid to exacerbate tend rather than alleviate current inequities. By distributing need, State aid without at once increase regard they existing between rich and districts and reduce gap poor amount of Even State revenues available to close the gap. devote though they only small of funds these percentage aid, forms the minimum aid 1975 Act are of the provisions one sense even more the Bateman than those of inequitable While under Act. the Bateman all districts received mini- Act mum aid, under which exceed Act those districts only I guaranteed factor, level of valuation do. light note my disagreement with the view that Chief Justice’s “the “not magnitude” minimum aid under the 1975 Act is Ante, J., such toas excision.” C. require (Hughes, If concurring). these with the provisions are inconsistent constitutional mandate, then they must be stricken regard- less of their magnitude. for invalidation of both I otherwise

Although might argue the minimum of the provisions and save-harmless support Ante, D.,A. -495 P. J. Act e. at 493 (see, g., (Conford, t/a, I to await would prefer concurring dissenting)), fairness, the results Act. In all plenary hearing on reten- defendants should defend opportunity be given tion of are con- they these and to establish that provisions mandate. Never- sistent fulfillment of constitutional theless, which is it is clear that in an educational marked by it makes little sense to dis- glaring disparities, burse funds to self-sufficient while simul- districts taneously districts needed assistance. depriving poorer Therefore, if the court below sup- finds the equalization of the 1975 Act are port provisions applied, inadequate then it must the minimum aid as well. provisions invalidate ®0) and Categorical Program Support

(3) Aid 35) Transportation f§§ aid Section 20 authorizes distribution of additional State cost of provide educating handicapped the increased This is accom- children or those with other needs. special by education classes attending special assign- for plished pupils their education ac- additional for the cost of ing “weight” “additional cost factors.” A cording to schedule of district’s calculated number categorical support by its multiplying additional ex- of cost units the State net current average Under 34 pense budget 20(d)). respectively, (§ §§ the State for full cost all provides handi- transporting children and all other capped pupils residing beyond a speci- fied from distance school. amici that, argue forcefully

Plaintiffs and certain as with aid, and save-harmless these forms of aid minimum support and, hence, without to need are in- regard are disbursed current eliminating goals dispari- consistent TV, districts. See Robinson 69 supra, between school ties J., N. J. 166-67 (Pashman, concurring dissenting). at argument.14 fails to even this Con majority recognize The indifference, I contention find trary apparent plaintiffs’ to its merit. intentions to have some laudable Regardless based, aid are they which these upon categorical provisions observe, hand, dissenting my does 14I on the Brother other that Ante, “argument plausibility.” concede that this has a certain dissenting). (Conford, t/a, concurring D., Never P. J. A. rejects by finding theless, plaintiffs’ he too contention “colorable structuring reasons, legislative policy judgment, within well Id., categorical along specific equalizing grounds.” aid rather than J., previously Ante, concurring). (Hughes, As see also at 473 C. I perceive stated, equalization I full of tax resources to be do “the sole and absolute criterion of whether the demands of Edu (Id.) However, were, legisla if cation Clause are met.” even no “colorable,” provi policy, tive no matter how could sustain these if, through operation, sions their some districts this State would provide constitutionally quality be unable to minimum education. Therefore, plenary hearing. I for a would remand if, manner muster their constitutional pass cannot from the sufficient funds aid, they withdraw distributing each no longer State can assure coffers so State’s per level of expenditure an and equalized district adequate no underfinanced, any as district long So school pupil. form this distributing is served in purpose valid legislative If, 1975 Act. manner forth in the aid set support pro- that the equalization shown however, it can be level of per Act will assure adequate gram I State, then district each expenditure pupil above of the constitutionality provisions find would to make this determina- needed facts unimpeachable. reason, I Eor us. however, not now before tion, are these constitutionality on the judgment would reserve Act, until a plenary as well provisions, their effect. operational can determine hearing Factors Pupil Mimvnation Weighted (4) Bateman Act provided for from lower socio- that children widely It now recognized is often educa- greater input level homes require economic if are to realize they progress comparable tional resources backgrounds. children from more fortunate to that realized by in Bateman at disad- Report 48. Public education (1968) to areas is more due vantaged expensive frequently This demand for compensatory programs. education greater 118 court, was the trial by fact substantiated findings J. 243, 245, 252-53, N. at Super, 262-63, and repeated J, Justice Weintraub in where he stated: Chief Robinson problem Although we have dealt with terms the constitutional input per pupil, dollar mean to we should not be understood may recognize costs, State a or differences area input equip disadvantaged need additional dollar to classes of opportunity. children for the [62 educational 520] W. J. at as- Act address The Bateman to this concern sought to children for weight purposes additional deprived signing the amount calculating of State aid which a district would under receive the act’s equalization support provisions. When determining number of in a dis- weighted pupils given trict, children who were of AEDC recipients (aid to families with dependent would children) (as a of 1.75 given factor compared with the factor 1of which they otherwise would have been 118 N. J. assigned). Super, at 259. review- ing constitutionality Act, of the Bateman the trial court found this factor to be one most weighting equitable relevant act. constitutionally provisions N. J. Super, 263. at

Plaintiffs and amici claim that in AEDC eliminating Act, factor from the 1975 has weighting Legislature failed to constitutional comport They its obligation. add that the of additional granting weight enrolled pupils or bilingual under compensatory programs § 0.11, (0.16 intended to respectively), though deal with the additional cost of children, educating disadvantaged a poor constitutionally inadequate substitute for AEDC provision. contention and rejects this sanctions majority notably Act which excludes for such under- provisions children.

privileged Similarly, my Brother would dissenting relegate the level of problem discretion. legislative Ante, D., t/a, P. A. (Conford, concurring I dissenting). register my strong must dissent to both these The Constitution approaches. the State requires provide and efficient” all "thorough education pupils in the State. There re- nothing discretionary about this If it quirement. costs more ef- provide thorough and education to ficient children or economically socially area, disadvantaged then the additional must be funding made available. the Legislature While is not em- bound to ploy AEDC factor weighting formula or other any pre- IV, determined formula, Robinson supra, J.N. at it not may choose to ignore problem. Therefore, if Act, when viewed in entirety, its fails to assure certain it fails because pupil dollar input per districts adequate impoverished of educating cost the additional recognize reach constitutional objection may children, plaintiffs’ then noted, I remand Hence, would already dimensions. ade- levels whether spending determine hearing plenary additional costs. for these compensate quately Allocation Calculating Year in Prebudget Use (5) of Debt Service ^Equalization Aid under Support, and Provisions Capital Outlay amici the prebudget Plaintiffs and contend that use of year debt service budget calculating support, equalization since tends to capital outlay grants perpetuate inequities de- it fails for inflation makes aid to account and it State pendent upon past expenditures. IWhile this claim. to address fails majority

Again, facially is budgets year believe that the use of prebudget administrative considerations justified reasonable proving from I not convenience, preclude plaintiffs would may be on Eor contrary example, remand. inflation, prevents poorer device, account by failing expenditure of per pupil districts from those levels meeting edu efficient necessary to provide thorough certainly one use cation. The prebudget year figures when court trial the factors which must examined be Act.15 of the 1975 the overall effect reviewing operational Limit (6) Support State The at supra “State limit is defined support” from pay- State this limitation prevent purpose plaintiffs’ Judge claims 15I note that discusses Conford while respect imposition prebudge-t year to use Limit, Ante, Support 510-511, find would he nevertheless unimpeachable provisions were other if tax resources these equalization equalized. alone does Because tax resources wise necessarily compliance clause, I must assure full with the educational approach. dissent from this e., a its full school ing share local budget (i. share from use ratio,” of'the “State see resulting support supra where local 540), is considered be extrava- budget in terms of gant The cut-off per pupil expenditures. point 65th as the net designated percentile expense budget per pupil. on the challenge ground amici this provision

Plaintiffs and needs run above the State 65th that when a actual district’s districts, must be on the percentile provided of all State aid to the subject basis of and not be arbi- that district’s needs limit. trary set support restriction State rejects While majority plaintiffs’ by endors- challenge the 1975 IAct, ing would, consistent with my approach case, throughout provide or plaintiffs amici the oppor- tunity prove on remand that operation of the State does, in support fact, limit or one more school prevent dis- tricts from their meeting needs or satisfying standards performance established pursuant Article II the Act. Spending Increase

(7) 25) Limit : (Section Section places on cap permissible increases yearly the net current such expense budget It limits per pupil. formula, spending increases accordance with stated which treats districts with be levels per pupil expenditure low the State than average somewhat more dis generously tricts which are above the In average. State particular, should be noted that this section even inhibits and under may mine efforts by districts to the per low-spending equal pupil expenditure levels districts. higher-spending Conse quently, gaps between district current will expenditure levels be closed very slowly.16 addition, it particu- makes § Priest, 938,254 16I note that trial v. court No. Serrano (Sup. April Cty., 10, 1974) required A. Ct. L. within a max period years disparities imum of six districts between school per pupil expenditures differences, “insignificant reduced which considerably per $1,000 pupil.” means amounts than [Memoran less opinion dum at 102]. larly difficult for low-spending districts to catch to those up districts spending above the average. as the Finally, majority out, the points intended purpose this section Ante, is unclear. at Therefore, I find this provision to be constitutionally suspect. also See dis Judge Conford’s Ante, cussion on this at point, 494-495.17 However, since the may State wish to present some coun- justification tervailing for this I remand provision, would this question to the trial court for a determination as to 25 whether at is all consistent with the aof “thor- goal § ough and efficient” system of If not, education. it is it must be stricken.

(8) Overburden Municipal first problem municipal overburden was identified 273, the trial court’s 118 N. J. at opinion, Super, I, 62 Robinson N. J. at again supra, 519. Chief Weintraub, Justice a “critical” factor labeling problem “in local any system of described it as fol- responsibility,” lows : difficulty design responsibility One for local fiscal is

that tax base to school are is which the districts remitted already major overloaded, particularly cities, in the the- other [62 demands for N. 519] local service. J. at In Robinson IT the reemphasized Court seriousness of majority 17I note that concurrence and the find 25 to be § facially grounds may, constitutional^on the Commissioner “escape provision, spending under valve” override the limitation necessary when such action is to fulfill the constitutional mandate. Ante, 467; Ante, concurring). (Hughes, at 473 C. J. Because — compliance just full with the education clause not facial com — pliance constitutionally majority’s mandated, I find the defense unpersuasive. any event, Judge aptly 25 to be § as Conford states, power “[u]nless the Commissioner exercise his ex emption practically basis, operation on a wholesale of Section plainly purported object Ante, conflicts with the of the act.” at 495. a and, opinion, 69 N. J. at 150-51 separate the problem, parameters.18 implications I its fully more discussed not address However, time, this Court chose at that — to its a which was attributable the problem decision and- disposition necessity judicial for complexity, quick was an interim merely order that the Court recognition majority’s posi- and not a final in the remedy plan. Implicit program the notion tion, however, any permanent was to account municipal aid to education ought formula, valuation pupil” The “guaranteed per overburden. so. Act, fails to do Equaliza- set forth § IV, specifically noted: my I Robinson 18In dissent though district, why taxes even is a third reason “There enough heavily, might revenues meet be able raise itself areas, particularly areas, have urban Some needs. its educational expenses high financed exceptionally must which non-educational high Expenses exceptionally through property which are taxes. municipal welfare, police county and and in areas include urban by areas, protection, revenues raised In sanitation. these and fire property education, might must otherwise be used which taxes addition, purposes. a substantial non-educational be diverted to special size, density, municipalities and of their because number developing quite properly problems, involved in become have social services, particularly range public human area of in the a broad provided welfare, and af- not other smaller and more health staggering This, too, contributed has to the fluent communities. eroding expenditures, city one and same further in rise — local real ratables. tax base estate heavy which burden situated an area has a “Hence district expenses may educational not be able to meet its of non-education base, property needs, though tax district with the same another even heavy weighted pupils, and rate the same tax same number of problem, has been labeled of this which could do so. ‘municipal overburden,’ effects ability to urban meet on the some areas See, g., Robin is now well documented. e. their educational needs Berke, Cahill, Super. (Law 1972). 223, N. Div. son v. 273 Inequity, ; Miehelson, (1974) & ‘Public Answers 82-86 Grubb — World,’ Rights Harv. Post-Serrano Civ. School Finance Analy ; 550, (1973) Note, ‘A Oiv.'Lib. L. Rev. 564-66 Statistical Losing Winning Battles sis the School Finance Decisions: On & ; Coons, Sugar- Wars,’ (1972) Vale GUne L. J. 1314r-15 & n <& Education, man, (1970).” [69 Private Wealth Public 233-36 (Pashman, J., dissenting concurring)]. R. J. at 169-73 tion of taz resources under that will provision not neces- sarily guarantee adequate per pupil those ezpenditures districts plagued overburden. municipal Since over- burdened he municipality may adequate unable to obtain funding that portion locality of its for which the budget it responsible, not he able may provide requisite levels of educational opportunity.

The majority clearly However, these recognizes facts. it disposes of the issue simply that the by speculating problem of municipal overburden “may occur,” never since the “State school aid may predicament,” obviate that advising the Legislature “to address to this potential itself Ante, problem.” at 466. I cannot concur with this disposi- tion. The Constitution imposes on the State affirmative duty provide for a thorough system efficient free public Any system schools. which of education falls short of this constitutional command rejected. must be Chief As Justice Weintraub said: any A of instruction which is district of the State thorough and efficient falls short of the constitutional command. obligation violation, Whatever reason for the State’s is the rectify government fails, government it. If local must compel (¡ur- act, government carry the local cannot if den continuing obligation. the State must itself meet [62 its J.N. 513; emphasis supplied]

This statement of our Court is relevant directly to the point at hand. The majority should not discard plaintiffs’ ad- mittedly sound contention with over- respect municipal burden on Instead, the basis of mere supposition. the matter should he remanded for factual determination to whether the “State school aid” provisions do, in the fact, alleviate problem of municipal overburden or whether that problem remains in spite of the 1975 If Act. the latter is found true, then the Act cannot be sustained without some An sugges fox idle problem.19

modification to account surely the itself to problem tion the address that Legislature not satisfy responsibility. will the Court’s I which contentions To summarize, the problems the conclusion just necessarily support have outlined do not is entirety, its that or the Act any particular provision, to choose free is Legislature face. The unconstitutional on its continuing its to meet whatever mechanism it deems proper IV, supra, Robinson under the educational clause. obligation Legis- the analysis, final However, 69 N. J. at in the efficient sys- a thorough lature’s must provide product short which falls tem of free schools. act public Any hence, invalid. and, constitutionally that goal inadequate is specific dissenting “no fea my claims 19I Brother note that proposals school-aid a State [have as to how advanced] been sible municipal fairly uniformly overburden.” reflect formula could Ante, at 507. perfect accuracy municipal measuring with While overburden ways simple certainly task, number a formidable there are a present adequately approximating In the 69 N. at 172. it. equali- context, property law used in the value for tax the the local support fact reflect the zation formula 18 could be modified to of § apparent base is unavailable much of the tax some district? financing disproportionate noneducational schools because equalized upon particular, support formula demands made it. adjusted by replacing equalized valu- 18 could be district § by per pupil multiplied pupil equalized per ation valuation with pur- percentage ratio used school the poses of the of local revenues percentage average to the local used for statewide revenues purposes. school necessary available, equalized valu- information is Where multiplied by tax ratio of the local nonschool ation could be average rate. one local nonsehool’ tax Where rate to the statewide valuation, presented ratables assessed at less than 100% multiply equalized following should be used: the district formula quotient per pupil § 18 formula valuation property rate to the total local tax of the local school tax ratio tax ratio of the statewide mean school rate rate divided supra Report, property Bateman mean tax rate. the statewide 97-98; Michelson, Finance in & “Public School a Post-Ser- Grubb — Rights Rev., 550, World,” Civ. Lib. 8 Rmv. Civ. L. 562- rano (1973). light problems above, and contentions discussed constitutionality the 1975 clearly Act has been brought into While each question. of the challenged provisions might be able on to stand own, its when viewed together, they raise serious as doubts to whether the 1975 Act constitu- tional applied.

IY AND REMEDIES CONCLUSION The majority a today undertakes course action whose implications for the future are and whose problematical bases our contradict prior decisions same matter. By this sustaining Act, constitutionality subject, the 1975 course, provision -to of full embarks funding, majority upon whose path uncharted direction can take us only further from I, objectives those which we in Robinson posited and to which we have adhered in later adjudications this case. The covert objective of the is not majority’s mission difficult discern. I find its “fresh Essentially, look” ap- proach to be a euphemistic device for from retreating those fundamental principles which underlie a “thorough efficient” educational I—IV, system as defined Robinson as for example, the integral correlation between per pupil expenditure levels and quality education.

Contrary to the I am not majority, review, prepared much pass judgment less on the constitutionality of the Act upon sketchy record which now before us. The ma- decision to determination jority’s undertake this only can confirm the fragmentary hypothetical basis which upon is founded. which

Any may constitutional confrontation have arisen has litigation the course not been during undertaken or spirit contentiousness vindictiveness. The de- have cisions which we rendered have not been written with eye either the or faith of the impugning integrity good or Governor Legislature. dispositions which we ordered have not altered the balance constitutional which re- on the fundamental Our powers. lies separation incursions from realm judicial by the have been marked a restraint and a reluctance which have often exceeded that warranted by circumstances. the in a today, gesture inter-

nonetheless, majority the a coexistence, beats retreat from hasty po- a governmental In different day. had on a so occupied doing, which it sition discretion to be filled zone of a demilitarized it leaves other branches of inaction the of action or whatever course decision, the ma- In today’s follow. choose to government conformity constitutional questions jority suggests agencies the governmental entrusted to reasonably may be time, At another necessary. conformity from whom that a different resolutely, followed, reluctantly though had of constitutional function as overseer route, its retaining un- position the new majority’s I have found rights. fortunate. ad- and ill-considered hasty I the

Because cannot sanction ruling I would defer majority, undertaken the judication time so that 1975 Act at this constitutionality of the upon to hearing a plenary could be remanded for matter 1975 Act. of the constitutionality and the effect operational to re- in order meantime, jurisdiction I would retain In the trial disposition. view the court’s which the remedial exception proposals I to the also take Should the IY of its opinion. Part majority presents 6, the in full ma- by April fail to provide funding Legislature the re- direct, action, as its course would first jority funds for the upcoming aid appropriated distribution provisions accordance with the year equalization would 19. The redistribution of such funds Act, 18, §§ full, with any until were these provisions satisfied proceed a rala be devoted to satisfaction pro funds to excess 1975 Act. While I do not aid provisions other State which relief is intended salutary objective question serve, I find the redistribution to be a less than satisfactory resolution of the fact, In underlying problem. extent the redistributed funds would not be directed towards standard, and efficient” meeting “thorough only but would represent measure, majority’s stop-gap suggestion no better than the May 1975 order. contrast fol majority, my envisions the approach

lowing possible 1976-1977 dispositions year. school If the trial Act, court find as im our Court and/or plemented, to be constitutional20 and the Legislature fully funds it before April the 1975 will then Act into effect go for 1976-1977 school year.

If, however, the Act is held to constitutional but is not fully by funded 15, or April if the trial court and/or Court find the Act to be unconstitutional whether or not it is fully funded, our Court an should then issue order to show cause awhy remedial order should not be entered. Said order would assure adequate of the entire educational funding sys- tem by supplementing those moneys by appropriated Legislature with the funds to be raised local school by dis- tricts in accordance awith fair and formula. It equitable would also determine the formula for the distribution among the school all districts of moneys for State aid. available

Without consideration other fair and foreclosing any formulae, I would equitable very seriously consider funding on the The Commissioner terms. of Education following would be an directed to calculate tax State school average rate the total of school for dividing budgets all the en- tire State (minus any the State moneys appropriated by the total Legislature) by assessed valuation of equalized all disposition presumes judge 20This that the trial will adhere to judicial principle only pro the settled if a few the Act’s provisions may visions are found to be unconstitutional few these altering Legislature’s purpose, be severed without intended then preserve the court should in sever them order to the Act’s consti tutionality. would then district Each school within the State. ratables tax, school amount raise, to its local through be required tax rate multiplied school the said State average to equal would These funds valuation. assessed the district’s equalized would dis- Treasurer who State then be forwarded to the ac- funds) appropriated them State tribute (together local each fully fund amounts required cording review course, would Of the Commissioner budget. school final indicate each mate revisions budget, appropriate approval. dis- my which was order, first suggested anticipated

This III, 67 N. Robinson senting opinion supra,, toward Furthermore, both “fair geared equitable.” implementation fully system financing constitutional education. public tax school reduce the effectively will

Increased State aid rate in all districts. expressly ap- order is enter remedial such power IV, said: Hughes Chief Justice in Robinson where

proved imply not, course, already we have said is What provisional remedy year order we hereinafter 1976-1977 represents concept May full reach of our [the order] effectuating promise power, duty responsibility our or other children of should the Constitution the school remedy delay beyond availability of a time Branches action supra, year IV, [Robinson 146] 69 N. J. at school 1977-1978. IV, N. Robinson 69 J. at 152-53 and cases supra, See also cited therein. obtain to finance in- funds has the power

The Court if mandated education expenditures in school creases VIII, II, 2, may J. Art. N. Const. (1947), clause. While § ¶ Legislature appropriate from ordering bar the Court measures, its own revenue imposing or from money raising Palmer, Fitz- 329, N. J. 337-38 (1968); 52 East v. Orange Scott, Palmer, v. 47 106 Gallena 11 N. J. (1960); v. gerald not prevent does 231, (1950), provision J. 238-39 N. 561 from Court its exercising equitable powers funds compel to be raised by inferior subdivisions. Van political v. Riper Freeholders, Board Chosen L. 137 N. J. 714 & A. (E. Zink, Hudson v. J. 1948); County 135 N. L. Ct. 1 (Sup. 1946); County v. School Board Prince Edward cf. Griffin 377 County, 84 218, 1226, S. S. 12 L. Ed. 2d 256 Ct. U. (1964). Court also has the to reallocate power moneys ap

The for school Legislature purposes so propriated constitutionally be used rather than unconstitution they may Palmer, 307, East v. N. J. See 47 330 ally. Orange (1966); Columbia, Education Mills v. Board District of cf. 348 F. 866 D. C. 1972). Supp. (D.

This case difficult choices and controversial resolu involves The or a potential unpopularity controversiality tions. decision, a basis however, unpersuasive has been singularly Park Ridgefield which inaction. premise this Court’s upon Taxation, 420, N. J. 431 Bergen County (1960); v. Bd. 31 III, J., N. J. dissent Robinson 67 at 43 supra, (Pashman, abdication Not only position represent . would such ing) Robinson Constitution, interpret of our responsibility IV, J., 154-55, concurring 69 N. 175 supra, (Pashman, J. at concurrent emascula only dissenting), but part a “thor to provide constitutional promise tion of the State’s Pub Nutley v. Sun Cooper and efficient” education. ough Co., v. South 189, King J. 196-97 N. lishing (1961); Bank, (dictum); N. J. 177 (1974) Nat’l Jersey J. Press, N. 1 (1960); v. Woolley, Park Inc. Asbury IV, cited 153-54 cases (see 69 N. supra, Robinson J., part concurring (Pashman, and 173-74 therein), I, 62 N. J. at supra, Robinson and dissenting); only re must of resolution sort mere suggestion of the thorough sake than for the if for no other reason jected million half of almost one education efficient their successors. children and this high- we on

I believe that take every step continue to for and efficient education way constitutionally thorough to a day a which one all children us closer to plan should bring After would be funded the State. entirely 'Constitution, the statewide school to our State Amendment State. This taz school costs in the property paid 90% chance for our children surely gave something equal reasons connected with school Por various public education. formula assessments, we drifted into a statewide tax equalized rather con- in which than apportionment pupils ratables I, Robinson proceeds. stituted the tax distributing basis 62 N. J. supra, at 508. Rob-

We must remain faithful to the tenets enunciated in Cahill, I, II, inson III v. and IV. made this commit- Having ment, we on any cannot our decision that place imprimatur De- does not the education clause. substantially implement from viation this will an educational objective only perpetuate which has four more writing permitted classes of students to have entered constitutionally disap- proved system four more classes to have been graduated from it. did They surely not receive the education quality which they were entitled. I concur in such a cannot re- sult. I would I order the relief which out-

Accordingly, have lined in this opinion. Hughes Justice

Concurring—Chief Justices Sul- livan, Clieeoed Schbeibee—4.

Concurring part—Justice Mountain Judge Con- eoed—2.

Dissenting—Justice Pashman—1.

Case Details

Case Name: Robinson v. Cahill

Court Name: Supreme Court of New Jersey

Date Published: Jan 30, 1976

Citation: 355 A.2d 129

Court Abbreviation: N.J.