Abbott v. Burke, 119 NJ 287

TABLE OF CONTENTS

I. Description of the Issue

II. The Constitutional Provision

III. Summary of the Issues

IV. Facts and Conclusions
A. The Funding Scheme
B. Educational Funding Disparities
C. Substantive Educational Opportunity: The Administration of the Act by the Commissioner and the Board

1. Municipal Overburden

D. The Quality of Education in the Poorer Urban Districts
E. The Quality of Students' Needs in the Poorer Urban Districts .. 400
F. Impact of the Level of Funding on the Quality of Education .... 403

V. Findings

VI. Remedy

VII. Conclusion

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The opinion of the Court was delivered by WILENTZ, C.J.

We again face the question of the constitutionality of our school system. We are asked in this case to rule that the Public School Education Act of 1975, L. 1975, c. 212, N.J.S.A.. 18A:7A-1 to -52 (the Act) violates our Constitution's thorough and efficient clause. 1 We find that under the present system the evidence compels but one conclusion: the poorer the district and the greater its need, the less the money available, and the worse the education. That system is neither thorough nor efficient. We hold the Act unconstitutional as applied to poorer urban school districts. Education has failed there, for both the students and the State. We hold that the Act must be amended to assure funding of education in poorer urban districts at the level of property-rich districts; that such funding cannot be allowed to depend on the ability of local school districts to tax; that such funding must be guaranteed and mandated by the State; and that the level of funding must also be adequate to provide for the special educational needs of these poorer urban districts in order to redress their extreme disadvantages.

We note the convincing proofs in this record that funding alone will not achieve the constitutional mandate of an equal education in these poorer urban districts; that without educational reform, the money may accomplish nothing; and that in these districts, substantial, far-reaching change in education is absolutely essential to success. The proofs compellingly demonstrate that the traditional and prevailing educational programs in these poorer urban schools were not designed to meet and are not sufficiently addressing the pervasive array of problems that inhibit the education of poorer urban children. Unless a new approach is taken, these schools--even if adequately funded--will not provide a thorough and efficient education.

We reject the argument, however, that funding should not be supplied because it may be mismanaged and wasted. Money can make a difference if effectively used, it can provide the students with an equal educational opportunity, a chance to succeed. They are entitled to that chance, constitutionally entitled. They have the right to the same educational opportunity that money buys for others.

On this record we find a constitutional deficiency only in the poorer urban districts, and our remedy is limited to those districts. We leave unaffected the disparity in substantive education and funding found in other districts throughout the state, although that disparity too may some day become a matter of constitutional dimension. We do so without implying in any way that such disparity is not important when considered as a matter of policy. Our decision deals not with optimum educational policy but with constitutional compliance.

At various points in this opinion, we refer to the administration of the Act by the State Board of Education (Board) and the Commissioner of Education (Commissioner). The record is replete with evidence of their dedication, industriousness, perseverance and, ultimately, their considerable accomplishments. The problems they face have bedeviled the entire nation. No one has solved them. Our constitutional conclusion in no way belittles their prodigious efforts and their many achievements.

This litigation is described in Abbott v. Burke, 100 N.J. 269, 495A.2d 376 (1985) (Abbott I), in which we decided it should be contested before the administrative agency rather than the courts. Plaintiffs are school children from Camden, East Orange, Jersey City, and Irvington. Claiming that the Act violates the constitutional provision, they commenced suit in the Superior Court for a declaration of its unconstitutionality and other appropriate relief. The trial court, conceiving of the action as raising a dispute or controversy under the education laws of the state, ruled that the issue should be determined by the administrative agency with jurisdiction over such controversies--the Department of Education (DOE)--and therefore dismissed the complaint for failure to exhaust the administrative remedy.2 On appeal the Appellate Division reversed, 195 N.J.Super. 59, 477 A.2d 1278 (1984), holding that since the case required adjudication of a constitutional issue, "beyond the power of the Commissioner to decide", Id. at 74, 477 A.2d 1278, jurisdiction in the Superior Court was required. It found the "doctrine of exhaustion of administrative remedies ... inapplicable." Ibid. (citation omitted). We granted certification, 97 N.J. 669, 483 A.2d 187 (1984). Finding that the "considerations ... relevant to the exhaustion requirement [were] in near-equipoise," Abbott I, supra, 100 N.J. at 298, 495 A.2d 376, we decided on an administrative determination in order to develop a record adequate for the complex issues involved, a record informed by the presumed expertise of the Administrative Law Judge (ALJ), the Commissioner, and the Board. Noting that the Commissioner was a defendant, we indicated that the initial hearing and fact-finding should be before an ALJ. Id. at 302, 495 A.2d 376.

After extensive hearings and other proceedings spanning a period of over eight months, the ALJ found that evidence of substantial disparities in educational input (such as course offerings, teacher staffing, and per pupil expeditures) were related to disparities in school district wealth; that the plaintiffs' districts, and others, were not providing the constitutionally mandated thorough and efficient education; that the inequality of educational opportunity statewide itself constituted a denial of a thorough and efficient education; that the failure was systemic; and that the statute and its funding were unconstitutional. Recognizing limitations on his authority, the ALJ, while declining to rule on remedies, nevertheless recommended various options, including a "high foundation" program of funding. Implicit in the ALJ's view of the thorough and efficient clause was a constitutional requirement of substantial equality of educational opportunity throughout the State.

The Commissioner declined to accept the ALJ's recommendations. He rejected the ALJ's factual finding of a strong relationship between property wealth and per pupil expenditures, or between either of those factors and certain indicators commonly thought of as related to educational quality--staffing ratios, teacher experience and training, and the like. The Commissioner noted the inconsistencies in the relationship between per pupil expenditures and property wealth, some property-poor districts spending more than richer ones; and the lack of consistency in the relationship between per pupil expenditure and, e.g., staffing ratios. He noted that plaintiffs' most thorough analysis was limited largely to comparisons between the poorest and the richest districts, leaving, in his view, a very substantial gap in between, where the record was insufficient to prove any of the relationships claimed. He found more persuasive the characterization of the data by certain experts as demonstrating an idiosyncratic pattern rather than one of consistent relationships. He further rejected the ALJ's findings of substantially greater breadth of course offerings in the more affluent districts, noting that the evidence was largely anecdotal and, in any event, was limited to subjects not critically related to a thorough and efficient education.

The Commissioner's most basic disagreement with the ALJ was in his evaluation of the record concerning the relationship of educational expenditures to the quality of education offered, the educational opportunity offered; and the "production-function" question, whether input was related to output.3 The Commissioner ruled that plaintiffs had failed to prove that such relationships existed, that most studies showed the relationship could not be established; he characterized the ALJ's belief that greater funding was needed to assure thorough and efficient education across the state as enthroning "naivete."

The Commissioner concluded, as a legal matter, that our Constitution did not require equal expenditures per pupil but rather required a minimum substantive level of education as defined in the Act and the rules and regulations of the Board and the Commissioner; that this Court had ruled that this statutory definition of thorough and efficient was constitutional; and that the procedure put in place by the Board and administered by the Commissioner was sufficient to assure, and indeed had already largely achieved, a thorough and efficient education throughout the state. He concluded that far from a systemic constitutional failure, the Act guaranteed a thorough and efficient education by virtue of the school districts' unlimited power to raise funds to satisfy their constitutional obligation, the Commissioner's power to require them to do so, and the Commissioner's power to take over the operation of any district that fails. The sufficiency of the educational opportunity now in place and to be achieved in the future was assured, according to the Commissioner, not through money but through the reporting, monitoring, and corrective provisions of the Act, rules, and regulations. Furthermore, the Commissioner found that if there was indeed any failure of a district to achieve the constitutional standard, the remedy was in the Act and in its enforcement. Indeed, the Commissioner noted several districts that were not achieving the level of education expected and the steps being taken, under the rules and regulations, to compel improvement and compliance. The Commissioner concluded that any failure to provide the constitutional standard--and he conceded none--was district-specific and remediable under the existing educational funding system.

On review, the Board adopted the Commissioner's decision in almost all respects. While recognizing the severe problems faced by disadvantaged children, the Board observed that the school system cannot solve all the problems of our society, and conceded that three of the plaintiffs' districts (Jersey City, East Orange, and Camden) are not affording a thorough and efficient education today, but agreed with the Commissioner that a constitutionally sufficient system was in place, and that through its funding and administration the Act assured a thorough and efficient education. As did the Commissioner, the Board noted certain deficiencies in the present funding statute (mainly the provision of equalization aid based not on the district's present need but on the prior year's budget) and its inability to address capital construction needs. It recommended corrective legislation. The Board also ordered that rules and regulations be adopted to strengthen the reporting, monitoring, and corrective functions. The ultimate conclusion of the Board, however, was that even without new regulations, the Act as implemented was constitutional as applied throughout the entire state.

We certified plaintiffs' appeal to the Appellate Division. 117 N.J. 51, 563 A.2d 818 (1989).

I. Description of the Issue

Predictably flowing from our decision in Robinson v. Cahill, 69 N.J. 449, 355 A.2d 129 (1976) (Robinson V ), the issue now before us is whether the Act, declared facially constitutional, is constitutional as applied. Despite that declaration, we recognized the possibility that in fact some districts might not provide a thorough and efficient education. Indeed, three of the Court's members expressed serious reservations on that question--two of them dissenting.

The positions of the parties suggest a delineation of that issue: the plaintiffs contend that the Act as applied is systemically productive of such financial and educational disparities as to render it unconstitutional in toto. A potential subsidiary issue, if that contention is rejected, is whether the Act as applied is unconstitutional for specific districts or for a specific class of districts. If either contention is accepted, plaintiffs' claims concerning remedies raise further issues. The State's position raises the issue of whether the Act, through its definition of a thorough and efficient education, its statement of goals and guidelines, its requirement of subsidiary goals at the district level, and its enforcement through the combined powers of the Board, Commissioner, and the district, has in fact resulted in the constitutional standard of education throughout the state. If not, the subsidiary question is whether the failure, if any, is systemic, requiring a declaration of unconstitutionality or is district-specific, requiring corrective action under the Act in a limited number of failing districts. Another statement of the issue is whether plaintiffs' demonstration of substantial disparity in expenditures and educational input between the poorest and richest districts compels the conclusion that the Act is unconstitutional; or whether, as the State contends, the actual substantive education provided to the students in the poorest districts is thorough and efficient or subject to being readily corrected; whether, as the State contends, thorough and efficient education under the Constitution requires a minimum level of education, and not equality.

If plaintiffs are correct in their contention that the Constitution requires substantial equality in educational funding, one of several radical changes must result in addition to the change from the inequality that has always existed to the equality that plaintiffs say is mandated. The State would, through some means, have to assure--make certain--that practically all districts spend the same amount per pupil. If that figure were to be pegged at the level of the more affluent suburban districts, it would require a massive infusion of public funds. If, on the other hand, the equality level were to be pegged somewhere near the average, and if strict limits were to be placed on any district's ability to exceed that amount in spending, a significant number of suburban districts would be compelled to substantially decrease their educational expenditures, in effect, to diminish the quality of education now provided to their students. The implications of the former--a vast infusion of funds--are particularly pointed in view of the fact that New Jersey is already one of the highest spending states in the nation in terms of per pupil expenditures.4 The implications of the latter--a uniform funding standard at the average rate requiring a leveling down--would be unusual in a state that has regarded home rule in the area of education, including gross disparity in expenditures between the rich and the poor, as an accepted part of the system.

The implications of the State's position are similarly unsettling. The inadequacy of poorer urban students' present education measured against their needs is glaring. Whatever the cause, these school districts are failing abysmally, dramatically, and tragically. Poorer students need a special supportive educational effort in order to give them a chance to succeed as citizens and workers. Their educational needs are often dramatically different from those of students in affluent districts. They are getting the least education for the greatest need. The implications of that fact on their future and on the state's future is the central theme of plaintiffs' case.

II. The Constitutional Provision

In order to pass on plaintiffs' contention, we must once again, in the context of this case, define the scope and content of the constitutional provision. That definition is critical to our determination of a remedy. While precision in such definition is desirable, certain considerations suggest caution against constitutional absolutism in this area. First, what a thorough and efficient education consists of is a continually changing concept. As the Legislature stated:
Because the sufficiency of education is a growing and evolving concept, the definition of a thorough and efficient system of education and the delineation of all the factors necessary to be included therein, depend upon the economic, historical, social and cultural context in which that education is delivered. The Legislature must, nevertheless, make explicit provision for the design of State and local systems by which such education is delivered, and should, therefore, explicitly provide after 4 years from the effective date of this act for a major and comprehensive evaluation of both the State and local systems, and the sufficiency of education provided thereby.... [N.J.S.A.. 18A:7A-2a(4).]

We observed in Robinson V that "[t]his statement reveals a perceptive recognition on the part of the Legislature of the constantly evolving nature of the concept being considered. It manifests an awareness that what seems sufficient today may be proved inadequate tomorrow, and even more importantly that only in the light of experience can one ever come to know whether a particular program is achieving the desired end." Robinson V, supra, 69N.J. at 457-58, 355 A.2d 129. Second, whatever the content of a thorough and efficient education may be, the question of what must be done to achieve it is debatable, as this case well illustrates. Third, embedded in the constitutional provision itself, at least in its construction thus far by this Court, are various objectives and permissible outcomes--equality, uniformity, diversity, and disparity--that may require, if they are to be allowed, a continued general definition of the constitutional mandate.

Finally, any definition of the constitutional obligation must operate in an area where confrontation between the branches of government is not only a distinct possibility but has been an unfortunate reality. See, e.g., Robinson v. Cahill, 69 N.J. 133, 351 A.2d 713 (1975) (Robinson IV ); Robinson V, supra, 69 N.J. at 468, 355 A.2d 129; and Robinson v. Cahill, 70 N.J. 155, 358 A.2d 457 (1976) (Robinson VI ). That potential confrontation concerns one of the most important functions of government--education--and involves substantial public funds, implicates the taxing power, and is potentially of a continuing nature. The Legislature's role in education is fundamental and primary; this Court's function is limited strictly to constitutional review. The definition of the constitutional provision by this Court, therefore, must allow the fullest scope to the exercise of the Legislature's legitimate power.

The initial construction of the thorough and efficient clause was permeated by the concept of equality. In Landis v. Ashworth (School District No. 44), 57 N.J.L. 509, 31 A. 1017 (Sup.Ct.1895), the court construed the constitutional provision (effected by the 1875 amendment to our former Constitution of 1844) as requiring "equality within the intended range of that amendment...." Robinson v. Cahill, 62 N.J. 473, 514, 303 A.2d 273 (1973), cert. denied sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973) (Robinson I). The qualifying language that we added, "permitting local decisions only above and beyond that mandated education," Ibid., reflected our understanding of Landis as allowing local districts the option of operating high schools, at that time a level of education not generally available. As Landis noted, if absolute equality were mandated by the thorough and efficient clause, it would mean either that all districts must have high schools or that none could--"[n]either of these consequences ... contemplated by the amendment of 1875." Robinson I, supra, 62 N.J. at 514, 303 A.2d 273 (quoting Landis, supra, 57 N.J.L. at 512, 31 A. 1017). Implicit in our discussion was that education below the level of high school--"the intended range [of the] amendment"--must be equal in all districts. We noted that without doubt, today high schools were very much a part of "the rights of all," Robinson I, supra, 62 N.J. at 514, 303 A.2d 273 (quoting Landis, supra, 57 N.J.L. at 512, 31 A. 1017), and that "a system of public education which did not offer high school education would hardly be thorough and efficient." Id. 62 N.J. at 515, 303 A.2d 273. That requirement of equality of educational opportunity through high school appears again in our observation, after our rejection of the claim that the constitutional provision required taxpayer equality, that "we do not doubt that an equal educational opportunity for children was precisely in mind." Id. at 513, 303 A.2d 273.

What that equality meant, while not precisely defined, was indicated in several ways. First, in deciding that the statute then in place was unconstitutional as not affording a thorough and efficient education, we relied solely on the disparity of funding, i.e., on the fact that the dollars spent on education per pupil varied from one district to another (from below $700 per pupil to over $1,500 per pupil, Robinson V, supra, 69 N.J. at 480 n. 4, 355A.2d 129). As we stated:
The trial court found the constitutional demand had not been met and did so on the basis of discrepancies in dollar input per pupil. We agree. We deal with the problem in those terms because dollar input is plainly relevant and because we have been shown no other viable criterion for measuring compliance with the constitutional mandate. The constitutional mandate could not be said to be satisfied unless we were to suppose the unlikely proposition that the lowest level of dollar performance happens to coincide with the constitutional mandate and that all efforts beyond the lowest level are attributable to local decisions to do more than the State was obliged to do. [Robinson I, supra, 62 N.J. at 515-16, 303 A.2d 273.]

Rather than on equality, our decision was based on the proposition that the Constitution required a certain level of education, that which equates with thorough and efficient; it is that level that all must attain; that is the only equality required by the Constitution. Embedded in our observation that if the lowest level of expenditures per pupil constituted a thorough and efficient education, then the constitutional mandate would be met was the clear implication that no matter how many districts were spending well beyond that level, the system would be constitutional. Second, we noted that the State, while assigning the obligation to local government to afford a thorough and efficient education, had never defined "in some discernible way the educational obligation," "the content of the constitutionally mandated educational opportunity"; it was "an unstated standard." Id. at 519, 303 A.2d 273. Again, the clear import is not of a constitutional mandate governing expenditures per pupil, equal or otherwise, but a requirement of a specific substantive level of education. Equality of expenditures per pupil could not have been constitutionally mandated when we recognized the right of districts to spend more to address students' special needs (the "need for additional dollar input to equip classes of disadvantaged children for the educational opportunity") and disclaimed any intent to deprive the State of the power to "authorize local government to go further" than "the constitutionally mandated education" and "to tax to that further end." Id. at 520, 303 A.2d 273. Our only condition was that such excess "not become a device for diluting the State's mandated responsibility." Ibid.

Our decision in Robinson I was necessarily general because of the narrow record in that case, consisting primarily of dollar per pupil information and related socioeconomic data. Although general, however, our holding in Robinson I was clear and formed the basis for our holding in Robinson V: a thorough and efficient education requires a certain level of educational opportunity, a minimum level, that will equip the student to become "a citizen and ... a competitor in the labor market." Robinson I, supra, 62 N.J. at 515, 303 A.2d 273. The State's obligation to attain that minimum is absolute--any district that fails must be compelled to comply. If, however, that level is reached, the constitutional mandate is fully satisfied regardless of the fact that some districts may exceed it. In other words, the Constitution does not mandate equal expenditures per pupil. We implied that the level can--and should--be defined in terms of substantive educational content. But while disparity was explicitly permitted, there was a caveat--the excess spending could not somehow be allowed to mask a failure to achieve thoroughness and efficiency in other districts.

This holding in Robinson I was reaffirmed in Robinson IV, supra, 69 N.J. 133, 351 A.2d 713. After the Legislature failed to act within the time limits set by the Court, we afforded a "contingent or provisional remedy," Robinson IV, supra, 69 N.J. at 146, 351 A.2d 713, that substantially increased equalization aid. Id. at 150, 351 A.2d 713. In the course of our opinion we referred to our statement of the constitutional command in Robinson I that the State afford "an equal educational opportunity for children", Id. at 140, 351 A.2d 713 (citation omitted), and shortly thereafter acknowledged "the legitimacy of permitting any school district wishing to do so to spend more on its educational program through local effort" provided, again in the words of Robinson I, such did not become "a device for diluting the State's mandated responsibility." Id. at 141 n. 3, 351 A.2d 713. Foreshadowing what was to come, we also observed that while disparity in expenditures per student was the sole criterion in our decision in Robinson I, that was because "we [had] been shown no other viable criterion for measuring compliance with the constitutional mandate." Id. at 141, 351A.2d 713 (citation omitted). We noted that in addition to the Robinson I record, the Court now had further material showing that "a multitude of other factors play a vital role in the educational result," and that therefore "while funding is an undeniable pragmatic consideration, it is not the overriding answer to the educational problem, whatever the constitutional solution ultimately required." Id. at 141 n. 3, 351 A.2d 713.

The Legislature acted in response to Robinson IV. In addition to defining and providing for the achievement of a thorough and efficient education through administrative measures, it provided a new funding mechanism to finance the substantive education defined in the Act as constituting "thorough and eficient." It firmly placed responsibility on the State to assure achievement of the thorough and efficient level in every district. It did so, however, through a scheme that continued to allow disparity in both dollars per pupil and educational content. Indeed, while the statute was sustained as facially constitutional, the doubts and qualifications expressed by some members of the Court suggested the inevitability of the litigation now before us. We reaffirmed the concept of a constitutionally required level of education, equivalent to thorough and efficient, and the corresponding power to exceed that level; but we gave no further content to the warning that any excess spending must not dilute the constitutional obligation. We spoke in the context of a statute that guaranteed continuation of substantial disparities among school districts in educational expenditures per pupil. Despite the certainty of those disparities, we held the statute facially constitutional and awaited the day of its return when it would be attacked as applied.

The change of focus from the dollar disparity in Robinson I to substantive educational content in Robinson V is clear; it was the main theme underlying the Court's determination that the Act was constitutional. Noting at the outset that for the first time we had before us a statute that defined the constitutional obligation, provided for its implementation through both state and local administration, required that implementation to be monitored, directed the State to compel compliance where that monitoring revealed deficiencies, and provided a funding mechanism to achieve the constitutional goal, we observed that the state's school-aid provisions "must be considered, not in comparative isolation, but as part of the whole proposal formulated by the Legislature." Robinson V, supra, 69 N.J. at 463, 355 A.2d 129. Although the opinion sketched the State-aid formula, it dwelt in considerable detail on the new approach to a thorough and efficient education: its definition, its involvement of both the State and district in fleshing out the details, standards, and elements against which thorough and efficient was to be measured, its requirements of reporting and monitoring, the whole range of remedies available to the Commissioner and the Board for corrective action to force districts to upgrade their educational offerings when monitoring revealed deficiencies, and the non-delegable duty of the State to do so. We described the process of district-by-district evaluation, monitoring, and corrective action intended to lead to thorough and efficient education everywhere in the state, not by a financial measuring rod but by an actual direct measurement of numerous factors that reflect the level of substantive education. The only question about financing was not whether it provided equal dollars per pupil--indeed, we noted that "there may be and probably are legitimate differences between and among districts and students", Id. at 464, 355 A.2d 129, but whether it was sufficient to support the entire system and its goal of achieving a thorough and efficient education throughout the state.

The fiscal provisions of the Act are to be judged as adequate or inadequate depending upon whether they do or do not afford sufficient financial support for the system of public education that will emerge from the implementation of the plan set forth in the statute. We are no longer considering the needs of the public system as it existed before the 1975 Act. We assume the Legislature had this in mind when preparing the state aid clauses of this statute. [Ibid.]

We "acknowledg[ed] the diversity that will inevitably exist among these separate [districts]," Id. at 459, 355 A.2d 129, and in referring to equal opportunity, we noted the Commissioner's and the Board's responsibility to assure that "throughout the Sta