# Abbott Ex Rel. Abbott v. Burke

> Supreme Court of New Jersey · May 28, 2009 · 199 N.J. 140

URL: https://www.frixlaw.com/law-library/cases/2294246

## Case

- **Full name:** Raymond Arthur Abbott, a Minor, by His Guardian Ad Litem, Frances Abbott; Arlene Figueroa, Frances Figueroa, Hector Figueroa, Orlando Figueroa and Vivian Figueroa, Minors, by Their Guardian Ad Litem, Blanca Figueroa; Michael Hadley, a Minor, by His Guardian Ad Litem, Lola Moore; Henry Stevens, Jr., a Minor, by His Guardian Ad Litem, Henry Stevens, Sr.; Caroline James and Jermaine James, Minors, by Their Guardian Ad Litem, Mattie James; Dorian Waiters and Khudayja Waiters, Minors, by Their Guardian Ad Litem, Lynn Waiters; Christina Knowles, Daniel Knowles and Guy Knowles, Jr., Minors, by Their Guardian Ad Litem, Guy Knowles, Sr.; Liana Diaz, a Minor, by Her Guardian Ad Litem, Lucila Diaz; Aisha Hargrove and Zaicia Hargrove, Minors, by Their Guardian Ad Litem, Patricia Watson; And Lamar Stephens and Leslie Stephens, Minors, by Their Guardian Ad Litem, Eddie Stephens, Plaintiffs-Respondents and Cross-Movants, v. Fred G. Burke, Commissioner of Education; Edward G. Hofgesang, New Jersey Director of Budget and Accounting; Clifford A. Goldman, New Jersey State Treasurer; And New Jersey State Board of Education, Defendants-Movants and Cross-Respondents
- **Court:** Supreme Court of New Jersey
- **Decided:** May 28, 2009
- **Citations:** 199 N.J. 140; 971 A.2d 989; 2009 N.J. LEXIS 420
- **Precedential status:** Published
- **Opinion:** Opinion by LaVECCHIA
- **Judges:** LaVECCHIA
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2294246

## How later opinions describe it (automated extraction)

- explaining that because New Jersey's special education population significantly exceeds national average, actual rather than average expenditures and classification rates were utilized, which were higher than those recommended in PJP model
- recognizing that "although the PJP . . . suggested [a weight of] .47 [for each Limited English Proficiency (LEP) student], SFRA applies a weight of .50"
- holding that "[t]he State shall not be required to continue separate funding streams mandated under past remedial orders"
- acknowledging that PJPs suggested base at-risk weights for special-needs students between .42 and .46 but formula used a uniformly-enhanced weight of .47

## Opinion text

Justice LaVECCHIA
delivered the opinion of the Court.
One of the fundamental responsibilities of the State is to provide a public education for its children. The New Jersey Constitution requires that
*144
[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.
[ N.J. Const,
art. VIII, § 4, H1. ]
That the education of youth is essential to the workings of democracy and the future well-being of society is widely appreciated. As Chief Justice Earl Warren pronounced in the historic decision,
Brown v. Board of Education,
[t]oday, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
[ 347
U.S.
483, 493 , 74
S.Ct.
686, 691 , 98
L.Ed.
873, 880 (1954). ]
That was 1954. Today we are almost a decade into the twenty-first century, and nearly twenty years have passed since this Court found that the State’s system of support for public education was inadequate as applied to pupils in poorer urban districts.
Abbott v. Burke,
119
N.J.
287, 295 , 575 A.2d 359 (1990)
(Abbott II).
Finding that more severely disadvantaged pupils require more resources for their education, the Court held that the State must develop a funding formula that would provide all children, including disadvantaged children in poorer urban districts, with an equal educational opportunity as measured by the Constitution’s thorough and efficient clause.
Id.
at 374, 384-86 , 575 A.2d 359 . A later decision added that the funding needed to be coupled to a set of educational program standards.
Abbott v. Burke,
136
N.J.
444 , 643 A.2d 575 (1994)
(Abbott
III).
Today’s decision marks the twentieth opinion or order issued in the course of the Abbott litigation. In the interim, much has changed. There have been significant demographic changes among school districts in terms of the distribution of at-risk pupils
*145
and changes in the level of State-provided education funding. The State now maintains that it has heeded our call to create a funding formula based on curriculum content standards and to demonstrate that the formula addresses the needs of disadvantaged students everywhere, thereby achieving constitutional compliance. Therefore, once again we assess the constitutionality of a State school funding system.
I.
This matter is before us on the State’s Motion for Review of the Constitutionality of the School Funding Reform Act of 2008 (SFRA),
L.
2007 c. 260
(N.J.S.A.
18A:7F-43 to -63). The State’s motion seeks a declaration that SFRA’s funding formula satisfies the requirements of the thorough and efficient education clause of the New Jersey Constitution and that, therefore, the State is released from the Court’s prior remedial orders concerning education funding for students in Abbott districts. Specifically, the State asks for elimination of the requirements that Abbott districts be provided parity aid and supplemental funding.
The State’s motion was opposed by plaintiffs with the support of various amici curiae. Plaintiffs filed a cross-motion seeking to maintain the status quo. We found that the dispute over the formula’s constitutionality was not conducive to resolution on a summary record and, therefore, we remanded the matter to a special master for development of an evidential record.
Abbott v. Burke,
196
N.J.
544, 565 , 960 A.2d 360 (2008)
(Abbott XIX).
The remand allowed for the presentation of State witnesses to explain what went into the creation of this formula and how it would work. In the proceedings before the Special Master, the State’s fact and expert witnesses were challenged through cross-examination and through witnesses presented by plaintiffs. The Special Master’s Report provided this Court with a summary of his fact-finding, accompanied by reasons for crediting or discounting the testimony
*146
of the witnesses.
See Appendix
at 176-250, 971 A.2d at 1010-54. The Report has proven invaluable.
1
We have reviewed the record, the Special* Master’s findings and recommendations, and the arguments of the parties.
2
We conclude that SFRA is constitutional, to the extent that this record permitted its review. We therefore hold that SFRA’s funding formula may be applied in Abbott districts, with the following caveats. Our finding of constitutionality is premised on the expectation that the State will continue to provide school funding aid during this and the next two years at the levels required by SFRA’s formula each year. Our holding further depends on the mandated review of the formula’s weights and other operative parts after three years of implementation.
See N.J.S.A.
18A:7F-46(a), (b), -51(a), -55(f), -57(a), -59.
Our approval of SFRA under the State Constitution relies, as it must, on the information currently available. But a state funding formula’s constitutionality is not an occurrence at a moment in time; it is a continuing obligation. Today’s holding issues in the good faith anticipation of a continued commitment by the Legislature and Executive to address whatever adjustments are necessary to keep SFRA operating at its optimal level. The three year look-back, and the State’s adjustments based on that review, will provide more information about the efficacy of this funding formula. There should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge.
*147
With that understanding, SFRA may be implemented as it was designed, as a state-wide unitary system of education funding. The State shall not be required to continue separate funding streams mandated under past remedial orders. During the two-year period until the look-back review occurs, we cannot ignore, as a practical matter, the substantial amount of additional funds that will be available from non-SFRA sources for pupils in Abbott districts. The availability of those funds further cushions the transition to SFRA’s funding scheme. In sum, although no prediction is without some uncertainty, the record before us convincingly demonstrates that SFRA is designed to provide school districts in this state, including the Abbott school districts, with adequate resources to provide the necessary educational programs consistent with state standards.
II.
Enacted by the Legislature and signed into law by the Governor in January 2008, SFRA is the product of the State’s most recent, lengthy and painstaking effort to craft a redesigned school funding formula that satisfies the constitutional standard. SFRA’s place in history dictates the nature of our review of its constitutionality.
Had this statute been enacted earlier in the history of school funding litigation, when the State first was required to devise a new formula to provide sufficient state support to assure that all school districts could meet the constitutional obligation,
3
we would be approaching our task by attaching the familiar presumption of constitutionality.
See N.J. Sports & Exposition Auth. v. McCrane,
61
N.J.
1, 8 , 292 A.2d 545 (stating that “every possible presumption favors the validity of an act of the Legislature”),
appeal dismissed sub nom, Borough of E. Rutherford v.
*148
N.J. Sports & Exposition Auth.,
409
U.S.
948 , 93
S.Ct.
270 , 34
L.Ed.2d
215 (1972);
see also In re P.L. 2001,
186
N.J.
368, 392 , 895 A.2d 1128 (2006) (stating that “we will not declare void legislation unless its repugnancy to the Constitution is clear beyond a reasonable doubt” (internal citations omitted)). The presumption attaching to typical legislative enactments affects the application of burdens of proof and the weighing of the evidence.
See Bd. of Educ. of Piscataway Twp. v. Caffiero,
86
N.J.
308, 318 , 431 A.2d 799 (attaching presumption of validity to legislation requires party challenging legislation to carry burden of proving its unconstitutionality),
appeal dismissed,
454
U.S.
1025 , 102
S.Ct.
560 , 70
L.Ed.
2d 470 (1981);
see also Hamilton Amusement Ctr. v. Verniero,
156
N.J.
254, 285 , 716 A.2d 1137 (1998) (noting similarly that party may overcome presumption and carry burden by demonstrating constitutional repugnancy beyond reasonable doubt).
The State enacted SFRA, however, after decades of school funding litigation that have led to the issuance of numerous remedial orders to enforce the constitutional rights of the pupils in the Abbott districts. The constitutional review, therefore, cannot begin with the familiar presumption. If the State is to replace adherence to those prior remedial orders with the application of SFRA’s new funding formula for children in Abbott districts, it must demonstrate that the concerns that compelled the Court to resort to judicially crafted remedies have been overcome.
See Abbott XIX, supra,
196
N.J.
at 566 , 960 A.2d 360 .
We recounted the relevant history of the Abbott litigation for the purposes of addressing the instant application.
Id.
at 548-49, 560-63, 960 A.2d 360 . We therefore draw from that summary the points that remain salient. In
Abbott XIX, supra,
we noted that early in the Abbott litigation,
plaintiffs earned their burden to overcome the presumption of validity that is accorded to legislative enactments, and successfully demonstrated the unconstitutionality of public school funding under Chapter 212 as applied to them.
See Abbott v. Burke,
119
N.J.
287 [ 575 A.2d 359 ] (1990)
(Abbott
17). The State was ordered to provide plaintiffs attending special needs districts (later designated as “Abbott districts”) with a constitutionally compliant education,
id.
at 374 [575 A.2d
*149
359], supported by funding in accordance with standards established to guide the Slate’s achievement of a constitutional system of education,
id.
at 384-86 [ 575 A.2d 359 ],
[ 196
N.J.
at 548-49 , 960 A.2d 360 . ]
Abbott II
required the creation of a formula that would provide certainty in funding for the special needs districts.
Abbott XIX, supra,
196
N.J.
at 560 , 960 A.2d 360 . Despite ordering that relief,
Abbott II
recognized that “ ‘funding alone will not achieve the constitutional mandate’ for pupils in districts having high concentrations of poor children.”
Abbott XIX, supra,
196
N.J.
at 560 , 960 A.2d 360 (citing
Abbott II, supra,
119
N.J.
at 295 , 575 A.2d 359 ). Funding coupled with a set of standards to measure the required level of education to be delivered also was deemed essential to a constitutional solution.
See Abbott III, supra,
136
N.J.
at 451-52 , 643 A.2d 575 .
Eventually, the State enacted the Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA), with its set of comprehensive core curriculum standards (CCCS) and accompanying funding formula.
Abbott XIX, supra,
196
N.J.
at 561 , 960 A.2d 360 . Although this Court approved the curriculum standards in
Abbott v. Burke,
149
N.J.
145 , 693 A.2d 417 (1997)
(Abbott IV),
CEIFA’s fiscal standards were found lacking and were held to be insufficient for constitutional purposes as applied to pupils in the Abbott districts.
Abbott XIX, supra,
196
N.J.
at 562 , 960 A.2d 360 . The State’s inability to devise a funding formula that measured the cost of delivering educational content standards in districts having concentrated populations of disadvantaged pupils with multiple learning challenges forced the Court to devise a judicial remedy to fill the void. As
Abbott XIX, supra,
explained:
the Court was unable to approve the fiscal standards adopted in CEIFA to support the CCCS because the standards were based on costs in a hypothetical school district that supposedly served as a model for all school districts.
[Abbott IV, supra,
149
N.J.
at 163 , 693 A.2d 417 .] The Court noted that the “model” did not account for the characteristics of special needs districts.
Id.
at 172 [ 693 A.2d 417 ], Furthermore, the Court also found that those special needs were not adequately provided for through CEIFA’s categorical aid for supplemental programs—demonstrable effective program aid (DEPA)—because DEPA funding also was not calculated based on a study of the special needs of the high concentrations of poor
*150
students attending Abbott districts.
Id.
at 185 [ 693 A.2d 417 ], Thus, the Court was forced to conclude that the State had not demonstrated an adequate basis for using the per-pupil funding amounts for supplemental programs.
Ibid.
[ 196
N.J.
at 562 , 960 A.2d 360 . ]
Accordingly, “[fjaced with no viable alternative legislative or administrative solution to the funding dilemma, the Court ordered the parity remedy.”
Ibid.
The parity remedy focused on the state’s most affluent school districts, classified as I and J districts for regulatory purposes, because the Court found that such districts provided “an objective and reasonable indicator of resources needed to achieve the CCCS.”
Ibid. Abbott XIX, supra,
noted that the parity remedy
was recognized, even at the time, as an “interim” remedy, albeit the Court’s “chosen interim remedy.”
[Abbott IV, supra,
149
N.J.
at 190 , 693 A.2d 417 .] The door was left open, however, for an alternative funding approach. The Court allowed that the Legislative and Executive Branches could devise an adequate alternative funding remedy so long as the State could show, convincingly, that a thorough and efficient education can be met through expenditures lower than parity, or if the State showed that the I and J districts’ spending contained inefficiencies.
Id.
at 196 [ 693 A.2d 417 ].
[ 196
N.J.
at 562-63 , 960 A.2d 360 . ]
Thereafter, in
Abbott v. Burke,
153
N.J.
480 , 710 A.2d 450 (1998)
(Abbott V),
the Court further “settled details about the supplemental programs that would be required for pupils in special needs districts,”
Abbott XIX, supra,
196
N.J.
at 563 , 960 A.2d 360 , and in the years since, the State has “abided by the Court-ordered parity remedy enhanced by supplemental funding to the Abbott districts.”
Ibid.
We summarized the history and context of the present litigation in the following manner:
The State’s efforts to comply with its constitutional obligation have spanned decades. Plaintiffs have had to bring numerous challenges to ensure that the State satisfied its constitutional obligation. They have worked long and hard to obtain a constitutionally sound, mandated educational program that is supported by a consistent level of State funding. And, their success has enabled children in Abbott districts to show measurable educational improvement. That background brings the present application into sharp relief.
[Id.
at 549, 960 A.2d 360 .]
*151
We determined that the State’s request to have its new funding formula declared constitutional on the basis of an undeveloped record, supported only by affidavits, would not suffice for purposes of SFRA’s replacement of the remedial orders governing education funding in Abbott districts.
Id.
at 565 , 960 A.2d 360 . We remanded for the development of a record and placed the burden of proof on the State.
Id.
at 565-66 , 960 A.2d 360 . Because the CCCS already were found to be constitutional,
see Abbott IV, supra,
149
N.J.
at 168 , 693 A.2d 417 , the issue on remand was whether the State had devised a funding formula that provided sufficient support for the delivery of a thorough and efficient education as defined by the CCCS, even when applied in the context of the peculiar difficulties faced by districts with concentrated levels of at-risk pupils,
Abbott XIX, supra,
196
N.J.
at 566 , 960 A.2d 360 . Only by meeting those concerns could SFRA replace the remedial orders governing the provision of education funding to Abbott districts.
Ibid.
We made clear in
Abbott XIX ,
however, that
[b]y that ... we do not mean that the formula must produce the equivalent in an exact dollar amount to that which parity/supplemental-program funding would have provided to be constitutional.
[Id.
at 564, 960
A.2d
360.]
Plainly, however, we were particularly interested in having the new formula examined to understand how it supports accommodation of the special needs of disadvantaged students.
Id.
at 566 , 960 A.2d 360 . We further held that, until the Court approves a new funding program for Abbott districts, the prior remedial orders would remain in effect.
4
Ibid.
With those stipulations, we
*152
remanded for expedited proceedings before an appointed special master.
Id.
at 567 , 960 A.2d 360 . This opinion picks up where the holding in
Abbott XIX
left off, focusing on SFRA, as dissected in the proceedings conducted before the Special Master.
III.
SFRA allocates state resources to school districts, while also requiring certain levels of funding at the local level. The State’s implementation of the Professional Judgment Panel (PJP) process, which led to the creation of the formula enacted by the Legislature, was discussed generally in this Court’s earlier opinion,
see Abbott XIX, supra,
196
N.J.
at 552-55 , 960 A.2d 360 , and in the Special Master’s Report,
see App.
at 190-210, 971 A.2d at 1018-30. Summarized below are the Special Master’s findings, and relevant recommendations about how the formula works. Thereafter we consider plaintiffs’ chief criticisms about SFRA’s development and its deficiencies as applied to Abbott districts.
A.
The Report describes SFRA succinctly as a weighted school funding formula. SFRA identifies a base cost associated with the education of an elementary pupil without any particular special needs. Once identified, the per-pupil amount is increased to reflect characteristics that are widely accepted as increasing the cost of education. Those characteristics are: 1) grade level, and whether the pupil is 2) an at-risk pupil (defined as one eligible for a free- or reduced-price lunch), 3) a Limited English Proficiency (LEP) pupil, or 4) a special education student of mild, moderate, or severe classification.
The State used the PJP process initially to assess the resources necessary for the base educational programs needed by an elementary student. It then costed out those resources using New Jersey data. The calculation of the additional weights also was
*153
produced through the PJP process. That process involved the use of multiple panels of educators from across the state and experts.
5
The process led to a formula in which the State’s contribution to funding operates in several ways.
The Adequacy Budget.
At the core of the formula is the Adequacy Budget. The Adequacy Budget is wealth equalized, which means that it is based on the community’s wealth and ability to provide funding through local resources.
6
As described in the Special Master’s Report,
[t]he Adequacy Budget is composed of four categories of aid: 1) a base aid amount for elementary, middle, and high school students, 2) additional weights for at-risk and LEP students, and vocational districts, 3) two-thirds of the census based costs for special education, and 4) all census-based costs for speech-only special education.
[App.
at 212, 971
A.2d
at 1031-32.]
The per-pupil amount is intended to represent the cost of educating an elementary school student, that is, of providing that student with the CCCS and extracurricular and eo-curricular activities necessary for a thorough and efficient education.
7
Under SFRA, the base per-pupil amount for 2008-09 is $9,649, which will be adjusted by the Consumer Price Index (CPI) each year over the next two years. Once the base per-pupil amount is determined, it is adjusted upward using specific weights.
*154
[T]he grade level weights are applied to account for the additional resources needed to educate higher grade levels. The weight for half day kindergarten students is 0.5, full day kindergarten students is 1.0, elementary students (grades 1-5) is 1.0, middle school students (grades 6-8) is 1.04, and for high school students (grades 9-12) is 1.17.
The cost per pupil for each grade level is determined by multiplying the base per pupil amount by the grade level weight. As such, the base cost for a district reflects the total amount of elementary students multiplied by $9,649, the total amount of middle school children multiplied by $10,035 (the base per-pupil with the middle school weight applied), and the total amount of high school students multiplied by $11,289.
[App.
at 213, 971 A.2d at 1032 (internal citations omitted).]
The formula includes additional weights for students with the special needs identified earlier. For each at-risk pupil, a base at-risk weight of .47 is applied.
8
Also, as described by the Special Master,
the [State Department of Education (DOE) ] employed a sliding scale to recognize the additional challenges faced by districts with high concentrations of at-risk students. The sliding scale applies a base at-risk weight of .47 to the base student cost for at-risk pupils in districts with an at-risk student population between zero and 20%. The weight then increases incrementally. The scale levels off at 60%— applying a weight of .57 to at-risk pupils in districts with an at-risk population over 60%. Although the at-risk weight levels off, the districts will still receive the additional funding for each at-risk student; therefore, the formula does provide more funding to districts with higher concentrations of at-risk students.
{App.
at 215, 971 A.2d at 1033 (internal citations omitted).]
The formula applies weights also to LEP students (although the PJP panel suggested .47, SFRA applies a weight of .50) and yet another weight for students who are both at-risk and LEP to support non-duplicative resources required by such students (although calculated during the PJP process to be 22.6% of the LEP weight, SFRA uses 25%).
The Adequacy Budget covers two-thirds of special education costs and all costs for speech-only special education. The remaining one-third is provided to districts through categorical aid. The census-based approach used to fund the remaining one-third of
*155
special education costs is addressed later in this opinion.
See infra
at 166-67, 971 A2d at 1004-05.
Finally, once the base funding is determined for a district, there is an adjustment for geographic cost.
See App.
at 220-21, 971 A.2d at 1036-37. The total calculation is referred to as the district’s Adequacy Budget.
9
In addition to the Adequacy Budget, SFRA’s formula includes Equalization Aid, Categorical Aid, Adjustment Aid, and Education Adequacy Aid.
Equalization Aid.
Equalization Aid is State-provided aid to support the Adequacy Budget by funding the difference between a district’s Local Fair Share (LFS) and its Adequacy Budget. A district’s LFS is the amount it is required to contribute in support of the Adequacy Budget. That amount is determined by adding a district’s equalized property wealth and its equalized income wealth. Under SFRA, a district must provide the lesser of either its LFS, as calculated using SFRA’s formula, or the local share it raised in the previous year. In short, Equalization Aid is the difference between a district’s LFS and its Adequacy Budget.
Categorical Aid.
Categorical Aid is a separate funding stream provided on a per-pupil basis for certain expenses. Categorical Aid covers: (1) one-third of census-based costs for special education; (2) security; (3) preschool aid; (4) extraordinary aid for special education; and (5) various additional aid categories. As
*156
explained by the State Commissioner of Education (Commissioner) during the hearing, Categorical Aid is “provided to ... every district at the same amount of resources.” Thus, one-third of special education is funded on the basis of Categorical Aid, “regardless of the community’s wealth,” while the other two-thirds of the special education funding is wealth equalized. In this way, poorer communities receive more wealth-equalized resources, but every community receives the same resources for the one-third of special education funding that is provided through Categorical Aid.
Security is provided for every student in the amount of $70. Additional aid is provided for at-risk pupils using a sliding scale, which increases the amount of per-pupil aid as the district’s percentage of at-risk students increases. That scale levels off at a forty percent at-risk pupil population, thereby providing $406 per pupil in additional security aid to districts having forty percent or more at-risk students in the pupil population. Security is funded entirely through Categorical Aid.
The formula also provides for transportation aid, choice aid, and debt service on the basis of per-pupil categorical aid factors.
Preschool Aid.
SFRA requires that every school district offer a high quality preschool program to all at-risk three- and four-year-olds in its district. The per-pupil cost of such programs was calculated based on actual cost data from the high-quality Abbott preschool program, rather than through the results of the PJP process. There are three types of preschool programs, each of which receives a different amount of state funding. Under SFRA, Preschool Aid is calculated by multiplying the number of children projected to be in each program by the respective program costs per child, and then totaling all costs together.
Extraordinary Aid.
Extraordinary Aid provides funding for special education expenses over a certain threshold. It is allocated as a reimbursement for the education of students “whose costs are extraordinary,” meaning above either $40,000 or $55,000. The State reimburses ninety percent of the costs over $40,000 for
*157
providing direct instructional and support services for such students, and the districts pay the balance. For private out-of-district programs, the State reimburses the districts seventy-five percent of the costs exceeding $55,000.
Adjustment Aid.
Adjustment Aid is provided as transition assistance to SFRA’s funding methodology. It is designed to enable districts that are spending above their Adequacy Budget to maintain their existing level of spending without significant tax levy increases. Adjustment Aid is provided if the sum of a district’s Equalization Aid, Categorical Aid, Extraordinary Aid, and Transportation Aid is less than the district’s 2007-2008 spending, plus two percent. If a district’s current-year aid is less than that amount, the district receives Adjustment Aid for the difference.
Education Adequacy Aid.
Education Adequacy Aid is provided to certain Abbott districts currently spending below their Adequacy Budgets. The aid is intended to help bring the district up to adequacy if the district is failing to meet education adequacy standards or is municipally overburdened.
B.
We know from this record that there were disputes among the educational experts who testified about numerous aspects of the process used by the State to construct its funding formula, as well as the adequacy of the funding delivered through the formula. Plaintiffs challenged the use of a PJP process for devising a formula to replace the remedial orders governing funding to Abbott districts. Also, plaintiffs challenged the process as it was implemented in New Jersey, specifically the first panel’s membership. At a fundamental level, plaintiffs claimed that the PJP process was inadequate because it involved the use of a “model” district, which they analogize to the approach to funding under CEIFA that was found inadequate in
Abbott IV.
Finally, much of the hearing before the Special Master focused on the State’s
*158
determination to impose a sliding scale of weights for concentrations of at-risk pupils, capped at the concentration of sixty percent.
All of those criticisms, discussed in the Special Master’s Report, were raised in exceptions to the Report. Having also heard the arguments of counsel, we address each in turn.
1.
Use of PJP process in general and as implemented in New Jersey.
Plaintiffs contested the use of the PJP process to create SFRA, arguing that the approach did not focus on, or adequately take into consideration, the actual needs and costs of education in Abbott districts. As we described in detail before we remanded this matter in
Abbott XIX ,
the State hired the firm of Augenbliek, Palaich and Associates (APA) to conduct a PJP costing-out study of education in New Jersey. In brief, the PJP process asks panels of experts—well-regarded educators experienced in delivering the State’s curricular standards in different roles—to determine the resources needed by students in order to attain the State-mandated CCCS. The report generated by APA formed the backbone of the funding formula eventually enacted as SFRA
After hearing testimony from education experts for both plaintiffs and the State, the Special Master concluded that “APA implemented a fair process leading to an informed review of the necessary funding required to attempt to ensure a thorough and efficient education as required by the CCCS.”
App.
at 210, 971 A.2d at 1030. In so finding, he credited the testimony of several experts, particularly that of Dean David Monk of the College of Education at Pennsylvania State University, who testified that “the use of the PJP process was reasonable and provided a systemic approach to connect the inputs and outputs of the educational funding system.”
App.
at 201, 971 A.2d at 1025. The Special Master found not only that the PJP approach is “one of four accepted methodologies utilized to create a school funding
*159
formula,” but that it is “the most commonly accepted methodology” in use.
App.
at 195, 971 A.2d at 1021.
Plaintiffs argue that the State instead should have ascertained the actual spending in Abbott districts and used those costs to develop a funding formula. In support of that argument, they point to the State’s use of such an approach instead of the PJP process to determine the funding level that would be allocated under SFRA to expand the Abbott preschool program to at-risk children throughout the state. Plaintiffs’ logic does not compel the result they seek.
Although the State chose to use an actual-cost analysis using Abbott district data for preschool, it does not follow that that methodology would have been better suited, or even appropriate, to the more complex task of determining the funding levels that will provide for the inputs necessary for all students in the State to achieve the CCCS. We see no constitutional flaw in the State’s decision to use a process regarded by national experts as one of the top four when developing a new comprehensive school funding scheme. Although the PJP process is not the only method by which the cost of providing necessary educational resources may be determined, Dean Monk viewed it as the “preferred” method for developing a grounded, need-based, statewide funding formula. We therefore adopt the Special Master’s finding that, while “acknowledging [that] no one methodology can predict with unerring accuracy the monies needed to meet the standards provided (here, the CCCS),” we are “satisfied the PJP process established fairly and equitably the first step in constructing a constitutionally mandated equitable funding formula.”
App.
at 210, 971 A.2d at 1030.
Plaintiffs further argue that implementation of the PJP process was deficient, primarily because of the composition of the panels. For example, plaintiffs argue that, unlike the prior studies in which APA was involved where the first panel of experts consisted of school-level administrators, in New Jersey the initial PJP panel was comprised solely of Department of Education (DOE) employ
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ees.
10
The criticism is factually accurate but not substantiated as a flaw in the legitimacy of the product generated by the process. The Special Master was not persuaded that this represents a material failing in the PJP process. Neither are we.
The record developed before the Special Master shows that APA had “a wealth of experience in many states and is considered a leader in the field as it concerns the PJP process.” Dean Monk recognized the firm to be “very capable, able,” and testified that it is “among the top experts” in the development of funding formulas through the use of the PJP process. Thus, APA’s expertise in running the PJP process was well established in the record. We therefore find support for rejecting criticism of the first panel’s membership in the explanation provided by APA’s Vice President, Justin Ryan Silverstein, who was present and assisted the New Jersey participants during the panel processes.
Silverstein testified that based on his experience in implementing the process, the first panel’s membership had sufficient professional experience to be able to identify resources necessary to achieve the defined educational objectives. He also noted that the panelists gave clear justifications for their conclusions. The Special Master gave credence to that testimony when he concluded that the PJP process was a fair and equitable first step in the creation of a constitutional funding formula.
App.
at 210, 971 A.2d at 1030. He further dismantled the criticism about the initial panel’s composition by noting that each succeeding panel had “unbridled” freedom to change or modify the work of the previous panels and three of the eight panelists (37.5 percent) on the third panel were from Abbott districts.
App.
at 203-04, 971 A.2d at 1026-27.
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Based on that record, we conclude that although the New Jersey PJP process may have differed from the process as implemented in other states, any differences do not equate to constitutional shortcomings.
2.
Model district.
Plaintiffs also criticize the State’s process because it used a “model” district, a defect that they say mirrors that which we found to exist in CEIFA. Indeed, in
Abbott XIX, supra,
we said that the State must show that, in devising SFRA, it had overcome the deficiencies we found in the development of CEIFA. 196
N.J.
at 566 , 960 A 2d 360. The
Abbott IV, swpra,
decision, in which we addressed CEIFA, had faulted the State’s use of a hypothetical school district to determine funding levels that did not account for the characteristics of Abbott districts. 149
N.J.
at 172 , 693 A.2d 417 . According to plaintiffs, the model district used in SFRA is similarly flawed because it “was not based on the characteristics of the special needs districts.”
Ibid.
It is superficial to say that the methodology used in developing SFRA is “funding that is based on a model” and to discount it on that basis. The layered process used by the State in developing SFRA is not like the assumptive-based single model used in CEIFA. The process builds costs from the “ground up,” as it has been described. The educators involved in developing the new funding formula that became SFRA were experienced and knowledgeable in delivering the CCCS in a variety of settings and for students of various types.
11
The CCCS had been implemented in all districts for years when educators were called together in
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panels to identify the resources needed for students at every level.
12
The same experienced educators also were asked to identify the resources needed for students having special needs or challenges. Again, those experts did so based on their experience in such matters, under the CCCS.
Thus, although those efforts were building to a formula from which per-pupil costs could be determined, it was unlike any “model” used before. Any formula can appear model-like in part, unless, of course, one is funding a statewide program based on an as-needed/individual district request basis. But with demographic changes increasingly presenting an at-risk population of pupils spread throughout the state (forty-nine percent of at-risk pupils are attending school in non-Abbott districts), the State determined that such an approach would be impracticable and unrealistic. We do not find the State’s determination to be constitutionally infirm.
Furthermore, to the extent that the sliding scale of added weights for at-risk pupils, in particular, was determined from the perspective of implementation on the basis of a single district—the largest—that too does not convert SFRA’s use of a “model” to the same type, or degree, of abstraction as that which concerned us about CEIFA. As the record reflects, the largest district was selected because, among other reasons, it was most likely to have higher concentrations of at-risk pupils and therefore was likely to have the most similar, and higher-cost set of needs for such pupil populations.
In sum, we do not find the State’s approach to the formulation of per-pupil costs and additional weights used as the foundation for SFRA’s funding formula to be constitutionally infirm.
3.
Formula not specifically Abbott-district based.
In addition to disputing the appropriateness of any model to replicate the difficulties experienced when educating the disadvan
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taged pupils of the Abbott districts, plaintiffs also challenged certain specific aspects of SFRA’s formula that they claimed were deficient in addressing actual characteristics prevalent in Abbott districts. Specifically, plaintiffs cited SFRA’s method of providing aid to special education pupils, the issue of municipal overburden, and the cap on the formula’s sliding scale of weights for concentrations of at-risk pupils in excess of sixty percent.
Running through plaintiffs’ arguments is the assumption that only with reference to specific programs and funding levels in the Abbott districts can the State show “that it has overcome the deficiencies found in CEIFA’s funding provisions as applied to Abbott districts.”
Abbott XIX, supra,
196
N.J.
at 566 , 960 A.2d 360 . Plaintiffs contend that without analyzing the actual application of SFRA to Abbott districts, it is impossible for the State to show that students in those districts will be given the opportunity to achieve a thorough and efficient education.
The State presents its case for the constitutionality of SFRA based on the premise that there may be an “alternative approach ] to an equitable and constitutional” school funding formula.
Abbott XIX, supra,
196
N.J.
at 564 , 960 A.2d 360 ;
see also, Abbott IV, supra,
149
N.J.
at 196 , 693 A.2d 417 (recognizing parity remedy as interim). The State argues that a school funding formula satisfies constitutional requirements if it provides sufficient financial support for the resources necessary for students to achieve the CCCS. It is the State’s contention that that formula may be an entirely new approach to school funding so long as it provides the funding necessary to meet the CCCS.
We have consistently maintained “that plaintiffs’ right is one of thorough and efficient educational opportunity.”
Abbott IV, supra,
149
N.J.
at 190 , 693 A.2d 417 ;
see also Abbott XIX, supra,
196
N.J.
at 562 , 960 A.2d 360 (reaffirming commitment to that constitutional guarantee). Accordingly, Court-ordered funding such as the parity remedy must be viewed as “simply one judicial remedy that can help to create that opportunity.”
Abbott IV, supra,
149
N.J.
at 190 , 693 A.2d 417 . We have been explicit in our
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insistence that if the State could convincingly demonstrate that a substantive thorough and efficient education can be achieved, Court-imposed remedies would no longer be necessary.
See, e.g., Abbott XIX, supra,
196
N.J.
at 562 , 960 A.2d 360 ;
Abbott IV, supra,
149
N.J.
at 196 , 693 A.2d 417 .
The State contends that showing that “SFRA was designed to exceed the requirements necessary” to provide an adequate education according to the CCCS to all students, meets that constitutional standard.
App.
at 238, 971 A.2d at 1047. We agree that, with the establishment of the CCCS, and a new formula designed to tie realistic expenses to the cost of delivering those educational standards to all pupils, the State has provided this Court with what we lacked in past State education funding formulas.
See Abbott IV, supra,
149
N.J.
at 176 , 693 A.2d 417 (“We are, however, still without any constitutional measuring stick against which to gauge the resources needed to provide that educational opportunity other than the inputs in the DFG I and J districts.”).
It is in light of our recognition of the State’s prerogative to create a new form of a constitutional funding formula that plaintiffs’ specific concerns about the formula’s provision of funds to Abbott districts must be addressed. Plaintiffs contend that SFRA fails to account for problems specific to Abbott districts, such as municipal overburden, high concentrations of special education students, and additional costs associated with concentrations of at-risk students over sixty percent. We address each of those arguments in turn.
(а) Municipal Overburden
Plaintiffs argue that SFRA is unconstitutional because it fails to account for municipal overburden in the Abbott districts. According to plaintiffs, SFRA relies on the Abbott districts to raise their LFS in order to support the Adequacy Budget, but because of municipal overburden those districts are unable to do so. The LFS is the amount that SFRA requires a district to
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contribute to its Adequacy Budget. While we recognize the concern expressed by plaintiffs, we are satisfied that SFRA provides various protective measures to alleviate the initial stress placed on the districts due to the requirement that they pay their LFS.
Under SFRA, a district is required to pay the lesser value of the LFS or last year’s tax levy. To make up the difference in the amounts, SFRA provides for Adjustment Aid during the transition period. Adjustment Aid ensures that no district in 2008-2009 will receive less aid than it received in the 2007-2008 year plus two percent. The amount of funding then continues in subsequent years so that no district will receive less than its 2008-2009 aid. This aid enables districts spending above their Adequacy Budget to maintain their existing level of spending without significant tax levy increases. SFRA also provides that those districts that received Education Opportunity Aid in 2008 would be eligible for additional aid if they are under adequacy as the result of municipal overbux*den.
In addition, there is a four pex’cent limit on the annual tax incx’ease for school districts.
See N.J.S.A.
40A:4-45.44 to -45.47. Plaintiffs argue that that limit will prevent the Abbott districts from reaching their LFS in order to fund their Adequacy Budget. SFRA, however, is designed to supplement the funding for those districts that cannot x-aise their LFS to the amount required, to ensui’e that they still receive their Adequacy Budget and are fully funded. SFRA further provides for periodic review measui'es, specifically requii’ing that the Commissioner study the limitations on growth levels in the disti'icts and their abilities to meet the LFS. A determination must be made by the end of the 2010-2011 school year as to the best way to address any continuation of municipal ovei'burden and the failure of certain districts to raise their LFS to the amount required.
The combination of those mechanisms undercuts plaintiffs’ argument that SFRA is unconstitutional because of the risk of municipal overburden. The State recognizes that municipal overburden
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is a problem. Accordingly, it has provided for additional aid to those districts that are unable to raise their LFS in future years. The State expects that eventually every district will be able to contribute their LFS, but as the Commissioner testified, “they don’t have to do that overnight.” Therefore, at present we are satisfied that the potential for municipal overburden in Abbott districts has been addressed by the transition aid provided in SFRA
(b) Special Education
Plaintiffs take issue with the State’s use of a census-based method for funding one-third of special education costs. Under that method, a statewide classification rate of 14.69% is used to calculate the amount of aid for special education. Aid is allocated by multiplying that classification rate by the total number of students enrolled in a district. Plaintiffs contend that that method is not appropriate because the State did not analyze the distribution of children with disabilities across the State. Plaintiffs presented expert testimony that studies reveal an uneven distribution of children with disabilities throughout New Jersey and that there is a correlation between higher concentrations of special education students and poverty.
In testimony before the Special Master, the State’s experts explained that the State used the census-based method to fund a portion of special education costs in order to counteract the tendency of school districts to over-classify students as needing special education, a problem they specifically identified in New Jersey. The record shows that New Jersey has a higher classification rate than any other state in the country. The average classification rate in the country is 8.96%. New Jersey’s classification rate is 12.54%.
Although we understand that Abbott districts may have greater numbers of special education students and therefore greater needs, we cannot conclude that SFRA’s funding will be insufficient to meet those needs. The census-based method only accounts for
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one-third of the special education funding. SFRA funds the other two-thirds of special education costs by allocating an excess dollar amount for each special education student in a district. Extraordinary Aid is provided to reimburse districts for the expense of providing special education for those students whose costs are extraordinary, meaning above either $40,000 or $55,000 depending on whether the services are provided in-district. As part of its periodic review, the DOE must analyze the census-based methodology to determine if adjustments are necessary. The combination of those elements of SFRA’s approach to special education persuades us that SFRA is designed to provide adequate funding for special education in Abbott districts. The Commissioner’s obligation to review the census-based methodology in 2010 provides reassurance that any potential deficiencies will be corrected.
(c) At-risk weights
Plaintiffs argue that SFRA’s failure to increase the at-risk weights in districts with poverty concentrations of greater than sixty percent does not account for the greater needs of those districts. Plaintiffs are particularly concerned with the sixty percent cap because twenty-four of the thirty-one Abbott districts have poverty levels in excess of sixty percent. Their experts testified before the Special Master that there are no studies supporting the proposition that when a district reaches a certain percentage of at-risk students, the per-pupil costs stabilize, rather than continuing to increase incrementally.
Of all the concerns raised by plaintiffs, the sixty percent cap was most troubling to the Special Master. We agree with the Special Master that this area is especially “worthy of consideration.”
App.
at 205-06, 971 A.2d at 1027-28. Ultimately, however, we conclude that the State has provided a reasonable explanation for the cap and it has reassured this Court by the commitment to revise the formula should elements, such as that cap, result in insufficient funding for at-risk students.
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The State explained that in developing the at-risk weights it began with numbers generated by the PJP process. The PJP panels proposed a flat weight of .46 to be applied for every at-risk student in a district. One of the experts hired by the State to review the PJP results, Dr. Odden, evaluated that result and recommended a higher flat rate of .50 instead. In his report, he noted that a rate of .50 would be among the highest in the nation. Taking that advice into consideration, the State created SFRA’s sliding scale that imposes weights from .47 to .57 per at-risk student, depending on the concentration of at-risk students in a district. Thus, for example, in a district with a low concentration of at-risk students (meaning zero to twenty percent at-risk), for each at-risk student enrolled, the district would receive 1.47 times the funding it received for a student without additional needs. Although the weights do not increase in districts with over sixty percent at-risk students, each at-risk student in those districts still generates 1.57 times the base amount. In this way, a district with over sixty percent at-risk students receives more absolute dollar aid under the formula than a district with exactly sixty percent at-risk students.
In creating SFRA’s sliding scale of at-risk weights, the State relied on the opinion of APA that at high concentrations of at-risk students, the additional programs needed would essentially be provided to all students, obviating the need for certain regular education programs and flattening the amount of additional funding required in those schools. The State also argues that, because the PJP process is an established method for costing-out education, the provision of more funding than was recommended by that process should reassure this Court that adequate funding is being provided under the formula.
The evidence is sufficiently convincing that the level and manner of SFRA’s funding to Abbott districts for at-risk students satisfies the constitutional standard. We recognize that, in making that determination, we are choosing to give the benefit of the doubt to the State as it implements a new innovative approach to providing
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sufficient resources to at-risk pupils wherever they happen to attend public school in New Jersey. In the absence of any empirical studies to prove or disprove the efficacy of a sixty percent cap, we find it reasonable for the State to have relied on the rationally explained advice and opinions of its experts and we are reassured by the State’s decision to increase the weights over those initially recommended.
We do not have the prescience to know the effect that that cap, or any of the numerous decisions made by the State in creating SFRA, will have in each school district in New Jersey. Indeed, until the formula has had time to function as intended, it will be impossible to know precisely what its effect will be. Our Special Master credited the opinions and rationales of the experts whose advice the State followed when fashioning this funding formula. We accept those determinations of the Special Master and, therefore, accept as reasonable the State’s exercise of judgment in developing this formula with its sliding scale of weights addressing the needs of concentrations of at-risk pupils. Our finding that that approach is not constitutionally infirm is tethered to the State’s commitment diligently to review the formula after its initial years of implementation and to adjust the formula as necessary based on the results of that review. This Court remains committed to our role in enforcing the constitutional rights of the children of this State should the formula prove ineffective or the required funding not be forthcoming.
4.
Have we “reach[ed] the point where it is possible to say with confidence that the most disadvantaged school children in the State will not be left out or left behind in the fulfillment of that constitutional promise[?]”
Abbott V, supra,
153
N.J.
at 528 , 710 A.2d 450 . Based on the Special Master’s findings, as far as it is possible to predict the effect of SFRA’s design, it meets the constitutional mandate.
13
Ultimately, “[wjhether the measures for
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education reform that are to be implemented will result in a thorough and efficient education for the children in the Abbott districts depends, in the final analysis, on the extent to which there is a top-to-bottom commitment to ensuring that the reforms are conscientiously undertaken and vigorously carried forward.”
Ibid.
SFRA will remain constitutional only if the State is firmly committed to ensuring that the formula provides those resources necessary for the delivery of State education standards across the State.
IV.
Judgments such as the one concerning the sixty percent cap on the sliding scale of weights for at-risk pupils occurred throughout the process that led to SFRA as enacted. The record is filled with instances where DOE and its experts debated the appropriate level of resources, or cost, or weight, or scale, to use. At each such opportunity, however, they “erred” on the side of providing more generous aid.
A costing-out study such as that engaged in by the State is rife with policy choices that are legitimately in the Legislature’s domain. In the record below, each value judgment attacked was demonstrated to have been made in good faith, and on the basis of available factual data informed by advice from experts, including national experts, whose testimony revealed that they had the interests of the pupils in mind. The record reflects that the Executive and Legislature have engaged in an accepted process to develop a fair and adequate funding system for use across the state. We see no reason, or basis, for us to second-guess the extraordinarily complex education funding determinations that went into the formulation of the many moving parts to this funding formula.
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It is true that the experts who testified below disagreed on many aspects of the formula and how they would operate in fact. Those disagreements do not lend themselves to one true answer, in part because of their predictive nature. The important point is that resolution of those conflicts is, in the first instance, a judgment for the Executive and Legislature to make. In
Abbott IV, supra,
we observed that “[t]he judicial remedy is necessarily incomplete ... and cannot substitute for the comprehensive remedy that can be effectuated only through legislative and executive efforts.” 149
N.J.
at 189 , 693 A.2d 417 . Our prior remedial orders were put in place due to the State’s failure to create a reliable assessment of the resources needed to deliver the CCCS in districts with concentrations of disadvantaged pupils.
Now the State painstakingly has worked to develop such a record, assisted by an experienced firm that has acted as a consultant to other states facing a similar need for a rational costing out study for education funding. The State chose what it perceived to be the best overall option based on the expert justifications offered during the process of constructing the formula. This record demonstrates that there were many funding issues that were debated by education experts in good faith and collaboratively resolved during the PJP processes that led up to a draft formula. The formula then was vetted, made more generous due to the input of panels of more experts unaffiliated with the DOE, and adopted wholesale into law. Our role is not to substitute our judgment for the State’s. We do not sit to second guess those nuanced and complex education funding decisions. Yet, in this instance we are effectively asked to pass on the exercise of judgment by the executive and legislative branches. Unlike in prior moments in the history of school funding litigation in this state, we do not now confront legislative inaction or failure to identify and provide realistic education funding support to at-risk children whose severe educational challenges cause their programs to be the most costly. It was previous indifference to a constitutional deprivation that started us down the
Robinson/Abbott
path.
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Although that may have been our point of embarkation, today we are in a different place.
The State has constructed a fair and equitable means designed to fund the costs of a thorough and efficient education, measured against delivery of the CCCS.
14
The quality of the effort and the good faith exhibited in the exercise of discretion over and over again at decision-points during SFRA’s development lead us to conclude that the legislative effort deserves deference. The Legislature and Executive have made considerable efforts to confront the difficult question of how to address the education needs of at-risk pupils, no matter where those children attend school. Those efforts are all the more impressive due to the coordinate branches’ collective will to do so during difficult economic times when there is extreme pressure on scarce State resources.
Athough we do not have the ability to see ahead and to know with certainty that SFRA will work as well as it is designed to work, we trust that the State will not allow our school districts to regress to the former problems that necessitated judicial intervention in the first place. Indeed, our finding of constitutionality is based, in no small part, on the expectation that the Legislature and Executive will not permit that deplorable state of affairs to recur in our school districts.
V.
Athough the Special Master recommended that SFRA be found to be constitutional, he further recommended that supplemental funding continue to Abbott districts, during and until the three year look-back review of SFRA. He did so because he could not predict SFRA’s immediate and practical effect on the delivery of
*173
educational services in Abbott districts.
App.
at 248-49, 971 A.2d at 1053. The State could not have been stronger in arguing to the contrary, that it would undercut the cohesiveness of the new funding scheme to allow the continuation of supplemental funding.
This funding formula was designed to operate as a unitary whole and, in order to achieve its beneficial results, it must be allowed to work as it was intended. The many layers of costs that were factored into the base per-pupil amount, the added weights, and the many types of additional aid that are provided in order to transition districts to SFRA’s funding levels, are all designed to provide sufficient resources and at the same time to ineentivize fiscal efficiency.
15
As designed under SFRA’s funding scheme, all districts will benefit from the formula’s insistence on predictability and transparency in budgeting, and accountability, and, at the same time, at-risk children across the state will benefit.
Although we cannot evaluate with precision the changes that a switch to funding under SFRA will entail in each Abbott district, there is comfort in knowing that until the look-back evaluation of SFRA’s initial years of implementation takes place, the Abbott districts will have two sources of additional money that will provide a substantial cushion of resources. We cannot ignore the State’s estimation that the Abbott districts will receive, cumulatively over the next two years, approximately $630 million in federal funds.
16
In allowing that practical consideration to be a
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factor in the determination to move forward with SFRA, we perceive no inconsistency with
Abbott II.
The federal funds are not being used as a crutch against some structural failing in the funding scheme itself. Rather, we simply refuse to ignore the stark reality of such a large amount of federal funds for the Abbott districts’ use during the same period in which they claim they
require
the continuation of supplemental funding.
In addition, there is also Emergency Aid that the DOE has budgeted and will have available for districts if they need it. The combination of both safety nets of considerable resources is significant and tips in favor of allowing SFRA to be implemented as it was designed. SFRA is meant to be a state-wide unitary funding system whose elements shall be subject to periodic reexamination and retooling as necessary to keep the formula operating with equity, transparency, and predictability. Because the supplemental funding may undermine or distort the effectiveness of SFRA, we decline to order its continuation over the next few years until the look-back occurs.
The State asks to implement SFRA as it was designed to gain the transparency, equity, and predictability that everyone is interested in achieving: from the parents of school age children, to district and school personnel, to average taxpaying citizens, to the district next door looking at the resources of its neighbors, and to the State as regulator and as lawmaker. With this decision, that full implementation shall proceed.
VI.
For several decades, this Court has superintended the ongoing litigation that candes the name
Abbott v. Burke.
The Court’s one goal has been to ensure that the constitutional guarantee of a thorough and efficient system of public education becomes a reality for those students who live in municipalities where there are concentrations of poverty and crime. Every child should have the opportunity for an unhindered start in life—an opportunity to become a productive and contributing citizen to our society.
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The legislative and executive branches of government have enacted a funding formula that is designed to achieve a thorough and efficient education for every child, regardless of where he or she lives. On the basis of the record before us, we conclude that SFRA is a constitutionally adequate scheme. There is no absolute guarantee that SFRA will achieve the results desired by all. The political branches of government, however, are entitled to take reasoned steps, even if the outcome cannot be assured, to address the pressing social, economic, and educational challenges confronting our state. They should not be locked in a constitutional straitjacket. SFRA deserves the chance to prove in practice that, as designed, it satisfies the requirements of our constitution.
The State’s motion, seeking declarations that SFRA satisfies the requirements of the thorough and efficient clause of Article VIII, section 4, paragraph 1 of the New Jersey Constitution and that the funding formula may be implemented in the Abbott districts, and further seeking an order relieving the State from this Court’s prior remedial orders concerning funding to the Abbott districts, is granted. Plaintiffs’ cross-motion seeking an order preserving and continuing the status quo concerning enforcement of this Court’s prior remedial orders addressing funding to Abbott districts is denied.
For on motion for review of the constitutionality of the school funding reform act
of2008—Justices LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS—5.
For on cross-motion for an interim order preserving the status quo and clarifying procedural
protections—LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS—5.
Raymond Arthur ABBOTT, a minor, by his Guardian Ad Litem, Frances ABBOTT; Arlene Figueroa, Frances Figueroa, Hector Figueroa, Orlando Figueroa and Vivian Figueroa, minors, by their Guardian Ad Litem, Blanca Figueroa; Michael Hadley, a minor, by his Guardian Ad Litem, Lola Moore; Henry Stevens, Jr., a minor, by his Guardian Ad Litem, Henry Stevens, Sr.; Caroline
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James and Jermaine James, minors, by their Guardian Ad Litem, Mattie James; Dorian Waiters and Khudayja Waiters, minors, by their Guardian Ad Litem, Lynn Waiters; Christina Knowles, Daniel Knowles and Guy Knowles, Jr., minors, by their Guardian Ad Litem, Guy Knowles, Sr.; Liana Diaz, a minor, by her Guardian Ad Litem, Lucila Diaz; Aisha Hargrove and Zakia Hargrove, minors, by their Guardian Ad Litem, Patricia Watson; and Lamar Stephens and Leslie Stephens, minors, by their Guardian Ad Litem, Eddie Stephens,
Plaintiffs,
v.
Fred G. BURKE, Commissioner of Education; Edward G. Hof-gesang, New Jersey Director of Budget and Accounting; Clifford A. Goldman, New Jersey State Treasurer; and New Jersey State Board of Education,
Defendants,
APPENDIX
SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION BERGEN COUNTY
DOCKET No. M-969
OPINION/RECOMMENDATIONS TO THE SUPREME COURT
Hearings: February 9th, 2009 to March 3rd, 2009
Decided: March 24th, 2009
Honorable Peter E. Doyne, A.J.S.C.
Kevin R. Jesperson, Deputy Attorney General, Robert Gilson, Director of the Division of Law, Assistant Attorney General, Shannon M. Ryan, Deputy Attorney General, Gregory A. Spell-meyer, Deputy Attorney General, and Michael C. Walters, Deputy Attorney General argued the cause for defendants (Mr. Gilson,
*177
Nancy Kaplen, Esq., Mr. Jespersen, Ms. Ryan and Mary Beth Wood, Esq. on the briefs).
David G. Sciarra, Esq., Ellen M. Boylan, Esq., and Deborah G. Splansky, Esq. (Education Law Center) and Avidan Y. Cover, Esq. and Lawrence S. Lustberg, Esq. (Gibbons P.C.), argued the cause for plaintiffs (Mr. Sciarra, Elizabeth A. Athos, Esq., Ms. Boylan, Mr. Cover, Ms. Splansky, and Theresa S. Luhm, Esq. on the brief).
Richard E. Shapiro, Esq. (Richard E. Shapiro, LLC) argued and submitted briefs on behalf
amici curiae
Boards of Education of City of Bridgeton, City of Burlington, City of East Orange, City of Elizabeth, Gloucester City, Harrison, Keansburg Borough, Jersey City Public Schools, City of Passaic, State-Operated School District of Paterson, Pemberton Township, City of Perth Amboy, Town of Phillipsburg and City of Trenton.
Harvey C. Johnson, Esq. and Rafael C. Haciski, Esq. (Wolf-Block LLP) submitted a briefs on behalf of
amicus curiae
Camden City School District.
Stephen Eisdorfer, Esq. (Hill Wallack LLP) submitted briefs on behalf of
amicus curiae
Dollar$ and Sense.
Mary A. Ciccone, Esq. submitted a brief on behalf of
amicus curiae
Disability Rights of New Jersey.
Morris G. Smith, Esq. submitted a brief on behalf of
amicus curiae
New Jersey Black Issues Convention.
Kathleen Naprstek Cerisano, Esq. (Zazzali, Fagella, Nowak, Kleinbaum & Friedman PC) submitted a brief on behalf of
amicus curiae
New Jersey Education Association.
Arnold Robinson, Esq. (Robinson, Andujar & Webb LLC) joined in the action on behalf of
amicus curiae
the Millville School District.
Ronald C. Hunt (Hunt, Hamlin & Ridley) joined in the action on behalf of amici curiae the Boards of Education of Plainfield, Pleasantville, and Irvington.
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I.
Introduction
The New Jersey Constitution mandates the children of this State are entitled to a “thorough and efficient education.”
N.J. Const,
art. VIII, § 4. The constitutional mandate is clear, yet implementation has proven to be problematic. The Court has confronted this daunting issue for almost four decades. Its efforts to work with the Legislature and the Governor have been reflected in a series of decisions beginning with
Robinson v. Cahill,
62
N.J.
473 [ 303 A.2d 273 ] (1973), and culminating with the Court’s remand order dated November 18th, 2008.
Abbott v. Burke,
196
N.J.
544 [ 960 A.2d 360 ]
(2008)(Abbott XIX).
The judiciary cannot shirk its constitutional responsibility but must remain mindful of its proper, yet powerful role in the governmental structure. As Chief Justice Wilentz noted “[t]he Legislature’s role in education is fundamental and primary; this Court’s function is limited strictly to constitutional review.”
Abbott v. Burke,
119
N.J.
287, 304 [ 575 A.2d 359 ]
(m0)(Abbott II).
The Legislature of the State of New Jersey has passed, and the Governor has signed into law, a new school funding formula titled “The School Funding Reform Act of 2008” (“SFRA”),
N.J.S.A.
18A:7F-43 to -62. This court has been directed to examine whether this law meets constitutional mandates; that is, does SFRA represent an equitable and constitutional funding approach “that can ensure Abbott districts have sufficient resources to enable them to provide a thorough and efficient education, as defined by the [Core Curriculm Content Standards].”
Abbott XIX, supra,
196
N.J.
at 564 [ 960 A.2d 360 ].
The matter has been remanded to this court, as a Special Master, to conduct a plenary hearing to develop “a full and complete evidential record”' addressing the issues raised by the parties.
Id.
at 568 [ 960 A.2d 360 ]. “Thorough and efficient” education has been held to require “equal educational opportunity” for all children,
Robinson, supra,
62
N.J.
at 513 [ 303 A.2d 273 ], and “must be understood to embrace that educational opportunity
*179
which is needed in the contemporary setting to equip a child for his [or her] role as a citizen and as a competitor in the labor market.”
Id.
at 515 [ 303 A.2d 273 ]. Justice Handler, in
Abbott v. Burke,
153
N.J.
480, 490 [ 710 A.2d 450 ] (1998)(Abbott
V),
understood, presciently, “[disputes inevitably will occur and judicial intervention undoubtedly will be sought in the administration of the public education that will evolve under [the then announced] remedial standards.” Despite this observation, Justice Handler, recognizing the reforms to be undertaken pursuant to Court mandate would be pursued vigorously and in good faith, also thought
Abbott V,
“should be the last major judicial involvement in the long and tortuous history of the State’s extraordinary effort to bring a thorough and efficient education to the children in its poorest school districts.”
Id.
at 490 [ 710 A.2d 450 ]. It is now in excess of ten years since that hope, if not expectation, was announced. The court must decide whether SFRA represents recognition of reforms instituted in good faith, which meet the constitutional mandate for a thorough and efficient education for the at-risk children in the Abbott districts, while also being mindful of the State’s obligation to all 1.4 million students in New Jersey.
II. Procedural History
The Supreme Court has addressed
Abbott v. Burke,
100
N.J.
269 [ 495 A.2d 376 ] (1985)(Abbott
I),
and its progeny on 19 separate occasions,
1
appointing four special masters to review the
*180
issues and develop evidentiary records. No other issue has been addressed, even remotely, as frequently as the school funding cases. A short summary of the Abbott history is provided.
In New Jersey, schoolchildren have a constitutional right to a thorough and efficient education. The constitution provides as follows: “[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this State between the ages of five and eighteen years.”
N.J. Const,
art. VIII, § 4, para. 1.
For over four decades, there has been litigation between the State and classes of schoolchildren to ensure such an education is provided. Beginning in 1973, in
Robinson v. Cahill,
62
N.J.
473 [ 303 A.2d 273 ] (1973), the Supreme Court found the State’s then existing school funding plan violated the thorough and efficient education clause of the State Constitution. In 1976, the Court found a new funding scheme, the Public School Education Act of 1975 (“the 1975 Act”),
N.J.S.A.
18A:7A-1 to -52 (repealed), to be facially constitutional.
Robinson v. Cahill,
69
N.J.
449, 467 [ 355 A.2d 129 ] (1976).
In 1985, the
Abbott v. Burke
litigation began.
Abbott I, supra,
100
N.J.
at 280 [ 495 A.2d 376 ]. Plaintiffs in
Abbott I,
2
schoolchil
*181
dren in Camden, East Orange, Irvington, and Jersey City, challenged the constitutionality of the 1975 Act. Plaintiffs argued the funding scheme, as applied, violated the thorough and efficient education clause of the State Constitution.
Id.
at 278 [ 495 A.2d 376 ]. Despite the weighty constitutional issues at hand, the
Abbott I
Court held “administrative remedies should be fully explored before judicial action is sanctioned.”
Id.
at 296 [ 495 A.2d 376 ]
(quoting Garrow v. Elizabeth General Hospital and Dispensary,
79
N.J.
549, 558 [401A 2d 533] (1979)).
Nonetheless, the
Abbott I
Court did address preliminarily some of the constitutional issues. In particular, the Court found “the thorough and efficient education clause ... does not require ‘the legislature to provide the same means of instruction for every child in the state.’ ”
Id.
at 291 [ 495 A.2d 376 ]
(quoting Landis v. Ashworth,
57
N.J.L.
509, 512 [31 A 1017] (Sup.Ct.1895)). The Court noted differences in the districts “may result in different levels of spending required to achieve the same educational opportunity.”
Id.
at 292 [ 495 A.2d 376 ]. The Court noted concerns regarding municipal overburden
3
and reliance on local tax base for funding.
Id.
at 292-93 [ 495 A.2d 376 ].
On remand, the Administrative Law Judge (“ALJ”) held exhaustive hearings for eight months and found the following:
that evidence of substantial disparities in educational input (such as course offerings, teacher staffing, and per pupil expeditures [sic]) 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
*182
efficient education; that the failure was systemic; and that the statute and its funding were unconstitutional.
Abbott II, supra,
119
N.J.
at 297 [ 575 A.2d 359 ].
The Commissioner of the Department of Education (the “Commissioner”) rejected the ALJ’s findings and found the 1975 Act constitutional, ruling in part “our Constitution d[oes] not require equal expenditures per pupil but rather require[s] a minimum substantive level of education as defined in the Act and the rules and regulations of the Board and the Commissioner.”
Id.
at 299 [ 575 A.2d 359 ].
In
Abbott II, supra,
119
N.J.
287 [ 575 A.2d 359 ], the Court reviewed substantively the 1975 Act. The Supreme Court held the 1975 Act “unconstitutional as applied to poorer urban school districts.”
Id.
at 295 [ 575 A.2d 359 ]. The Court held further:
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.
Ibid,.
Plaintiffs did not contest the 1975 Act’s definition of thorough and efficient was constitutional.
4
Id.
at 348-49 [ 575 A.2d 359 ].
*183
Abbott II
first explained the District Factor Groups (DFGs), by which school districts are divided by socioeconomic status from AJ—A being the lowest socioeconomic status and J the highest.
5
Id.
at 338 [ 575 A.2d 359 ].
In
Abbott II ,
the Court revisited what constituted a thorough and efficient education noting it is “a continually changing concept.”
Id.
at 303 [ 575 A.2d 359 ], The Court looked to the Legislature’s definition, acknowledging “[t]he 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.”
Id.
at 304 [ 575 A.2d 359 ].
The Court noted the baseline for a constitutional education:
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.
Abbott II, supra,
119
N.J.
at 306-07 [ 575 A.2d 359 ] (emphasis added).
*184
The
Abbott 11
Court also found a thorough and efficient education requires adequate facilities.
Id.
at 362 [ 575 A.2d 359 ]. The Court further defined thorough and efficient as:
more than teaching the skills needed to compete in the labor market, as critically important as that may be. It means being able to fulfill one’s role as a citizen, a role that encompasses far more than merely registering to vote. It means the ability to participate fully in society, in the life of one’s community, the ability to appreciate music, art, and literature, and the ability to share all of that with friends.
Id.
at 363-64 [ 575 A.2d 359 ].
The Supreme Court reinforced “[the Abbott II] decision [did] not deal with optimum educational policy, but with constitutional compliance.”
Id.
at 354 [ 575 A.2d 359 ].
In 1994, the Supreme Court tackled the Quality Education Act (QEA),
N.J.S.A
18A:7D-1 to -37 (repealed), enacted in 1990.
Abbott v. Burke,
136
N.J.
444, 446 [ 643 A.2d 575 ]
(1994)(Abbott III).
The Court declared the QEA unconstitutional as applied to the special needs districts.
Id.
at 447 [ 643 A.2d 575 ]. The Court found the QEA failed to meet constitutional muster because it did not “assure parity of regular education expenditures between the special needs districts and the more affluent districts.”
Ibid.
The QEA allowed for parity funding, but did not guarantee the funding necessary to accomplish the same.
Id.
at 448 [ 643 A.2d 575 ]. The Court also noted the Commissioner had failed to address supplemental programs as mandated in
Abbott II, supra,
119
N.J.
287 [ 575 A.2d 359 ].
Id.
at 452-53 [ 643 A.2d 575 ].
In 1996, the Legislature passed the Comprehensive Educational Improvement and Financing Act (“CEIFA”),
N.J.S.A.
18A:7F-1 to -34 (repealed), which defined a thorough and efficient education by the use of substantive standards referred to as Core Curriculum Content Standards (“CCCS”).
6
Abbott v. Burke,
149
N.J.
145 ,
*185
161-62 [ 693 A.2d 417 ]
(1997)(Abbott IV).
The
Abbott IV
Court declared CEIFA “facially adequate as a reasonable legislative definition of a constitutional thorough and efficient education.”
Id.
at 168 [ 693 A.2d 417 ], Nonetheless, CEIFA was unconstitutional as applied to the special needs districts for three reasons. First, CEIFA did not link the standards to the funding actually needed to implement the content required.
Id.
at 169 [ 693 A.2d 417 ], Second, there was no basis or support for the proposition aid provided under CEIFA’s two supplemental program funding streams would enable various constitutionally required programs in special needs districts.
Id.
at 185-86 [ 693 A.2d 417 ]. Third, CEIFA failed to address the dilapidated and overcrowded conditions of special needs districts’ facilities.
Id.
at 186 [ 693 A.2d 417 ]. The Court found further the State must provide adequate facilities regardless of “the district’s willingness or ability to raise taxes or incur debt.”
Id.
at 188 [ 693 A.2d 417 ].
The
Abbott IV
Court also mandated remedial relief in the form of additional funding to special needs districts for regular education on par with the average expenditures of the I and J districts by the start of the 1997-1998 school year.
Id.
at 189 [ 693 A.2d 417 ]. The funding remedy “also shall include the implementation of administrative measures that will assure that all regular education expenditures are correctly and efficiently used and applied to maximize educational benefits.”
Ibid.
The Court also required the State to address special education needs.
Id.
at 190 [ 693 A.2d 417 ].
*186
The
Abbott IV
Court “then remanded the ease to the Superior Court, Chancery Division to determine what judicial relief was necessary in order to address the need for supplemental programs and facilities improvements in Abbott districts.”
Abbott v. Burke,
153
N.J.
480,492-93 [ 710 A.2d 450 ] (1998)(Abbott
V).
The remand judge was to direct the Commissioner of Education to conduct a study and prepare a report on the unique needs of students in the special needs districts.
Id.
at 493 [ 710 A.2d 450 ]. The Honorable Michael Patrick King, P.J.AD., temporarily assigned to the Chancery Division, conducted the remand proceedings and appointed Dr. Allan Odden, a professor at the University of Wisconsin-Madison, as Special Master.
Ibid.
In 1998, the Supreme Court set forth “the remedial measures that must be implemented in order to ensure that public school children from the poorest urban communities receive the educational entitlements that the Constitution guarantees them.”
Id.
at 489 [ 710 A.2d 450 ]. Specifically, the Court directed
the Commissioner implement whole-school reform; implement full-day kindergarten and a half-day pre-school program for three- and four-year olds as expeditiously as possible; implement the technology, alternative school, accountability, and school-to-work and college-transition programs; prescribe procedures and standards to enable individual schools to adopt additional or extended supplemental programs and to seek and obtain the funds necessary to implement those programs for which they have demonstrated a particularized need; implement the facilities plan and timetable he proposed; secure funds to cover the complete cost of remediating identified life-cycle and infrastructure deficiencies in Abbott school buildings as well as the cost of providing the space necessaiy to house Abbott students adequately; and promptly initiate effective managerial responsibility over school construction, including necessary funding measures and fiscal reforms, such as may be achieved through amendment of the Educational Facilities Act.
Id.
at 527 [ 710 A.2d 450 ].
Plaintiffs again appeared before the Supreme Court in 2000 on a motion in aid of litigants’ rights.
Abbott v. Burke,
163
N.J.
95 [ 748 A.2d 82 ]
(2000)(Abbott VI).
The Supreme Court granted the relief sought in part, concluding the preschool program implemented did not meet the high quality standards required by
Abbott V. Id.
at 101 [ 748 A.2d 82 ].
*187
In the spring of 2000, the Court heard a motion for intervention in and for clarification of the Supreme Court’s
Abbott V
decision brought by Speaker of the General Assembly, Jack Collins.
Abbott v. Burke,
164
N.J.
84 [ 751 A.2d 1032 ]
(2000)(Abbott VII).
In
Abbott VII,
the Court confirmed in no uncertain terms, “the State is required to fund all the costs of necessary facilities remediation and construction in Abbott districts.”
Id.
at 90 [ 751 A.2d 1032 ],
In 2002, the Supreme Court decided plaintiffs’ second motion in aid of litigants’ rights following the decision of
Abbott V, supra,
153
N.J.
480 [ 710 A.2d 450 ],
Abbott v. Burke,
170
N.J.
537 [ 790 A.2d 842 ]
(2002)(Abbott VIII).
In
Abbott VIII,
the Court “provided a schedule for decision-making by the Executive Branch and by our Appellate Division to ensure that Abbott districts’ preschool program and budget proposals are timely reviewed and that ‘final dispositions are issued in time for the 2002-2003 school year.’”
Id.
at 540-41 [ 790 A.2d 842 ],
citing Abbott v. Burke,
No. M-1131, at 3 (N.J. Oct. 22, 2001). In addition, the Court declined to appoint a Standing Master for all Abbott matters, finding the same to be decided appropriately using the administrative process.
Id.
at 541 [ 790 A.2d 842 ], Similarly, the Supreme Court noted the judiciary does “not run school systems. Under our form of government, that task is left to those with the training and authority to do what needs to be done. Only when no other remedy remains should the courts consider the exercise of day-today control over the Abbott reform effort.”
Id.
at 562 [ 790 A.2d 842 ],
In the same year, due in part to State’s budget crisis, the Supreme Court entered an order allowing for a one-year cessation of funding growth for certain Abbott remedial measures.
Abbott v. Burke,
172
N.J.
294, 297-98 [ 798 A.2d 602 ]
(2002)(Abbott IX).
In April 2003, the State moved and plaintiffs cross moved for a modification of the decision in
Abbott V, supra,
153
N.J.
480 [ 710 A.2d 450 ].
Abbott v. Burke,
177
N.J.
578 [ 832 A.2d 891 ] (2003)(Ab
bott X).
The Supreme Court ordered the parties attempt to
*188
mediate the matter before Superior Court, Appellate Division, Judge Philip S. Carehman.
Id.
at 582 [ 832 A.2d 891 ]. Following mediation, the parties agreed the State would continue to implement whole school reform as required by
Abbott V
with some limited exceptions.
Id.
at 583-89 [ 832 A.2d 891 ]. On July 10, 2003, the Supreme Court held oral argument on the one issue remaining from mediation—whether the state would be allowed to extend the one-year relaxation of remedies previously granted in
Abbott IX, supra, 172 N.J.
294 [ 798 A.2d 602 ].
Abbott v. Burke, 177 N.J.
596, 597 [ 832 A.2d 906 ]
(2003)(Abbott XT).
The Court granted the State’s relief as follows: “The DOE shall have the authority to treat the 2003-2004 school fiscal year as a maintenance year for purposes of calculating Additional Abbott Burke State Aid for the Abbott districts. During 2003-2004, K-12 programs provided for in the 2002-2003 school year will be continued, subject to conditions set forth [by the Court].”
Id.
at 598 [ 832 A.2d 906 ].
In June 2004, the Supreme Court granted a limited relaxation of the deadline for the pre-school teacher certification requirement mandated by
Abbott VI, supra,
163
N.J.
95 [ 748 A.2d 82 ].
Abbott v. Burke,
180
N.J.
444 [ 852 A.2d 185 ] (2003[2004])(Abbott
XII).
On November 1, 2004, the Supreme Court entered an order directing the parties to attempt to mediate an issue involving a modification of
Abbott X, supra, 177 N.J.
578 [ 832 A.2d 891 ].
Abbott v. Burke,
182
N.J.
153 [ 862 A.2d 538 ]
(2004)(Abbott XIII).
On December 19, 2005, plaintiffs’ request for relief in aid of litigants’ rights related to school facilities issues was granted in part.
Abbott v. Burke,
185
N.J.
612 [ 889 A.2d 1063 ]
(2005)(Abbott XTV).
Between 2005 and 2008, plaintiffs came before the Court three more times seeking orders in aid of litigants’ rights.
See Abbott v. Burke,
187
N.J.
191 [ 901 A.2d 299 ]
(2006)(Abbott XV); Abbott v. Burke,
193
N.J.
34 [ 935 A.2d 1152 ]
(2007)(Abbott XVII); Abbott v. Burke,
196
N.J.
451 [ 956 A.2d 923 ]
(2008)(Abbott XVIII).
In
*189
Abbott XV,
the Supreme Court granted the DOE’s request for a funding freeze in Abbott districts for FY2007. 187
N.J.
191 [ 901 A.2d 299 ]. The Court also mandated the DOE work with districts to ensure that needed programs are maintained and that the DOE complete fiscal audits of four Abbott districts.
Ibid.
On May 22, 2006, sixteen intervenor districts sought clarification of
Abbott XV. Abbott v. Burke,
196
N.J.
348
(2006)(Abbott XVI).
In response, the Supreme Court set budget timelines and required funding for new and renovated facilities in FY2007.
Ibid.
In
Abbott XVII,
plaintiffs moved for an order in aid of litigants’ rights. 193
N.J.
34 [ 935 A.2d 1152 ], The same was found to be premature and, as such, denied without prejudice.
Ibid.
Finally, on February 19, 2008, plaintiffs moved once again for an order in aid of litigants rights with regard to school construction funding.
Abbott XVIII,
196
N.J.
451 [ 956 A.2d 923 ]. In
Abbott XVIII ,
given the State’s representations with regard to pending legislation, the Supreme Court denied plaintiffs’ motion as premature.
Ibid.
III.
Remand
By way of the decision decided on November 18th, 2008 and memorialized by way of an order of the Court of the same date, this matter was remanded to this court, sitting as a Special Master, to conduct a plenary hearing to develop the evidential record whether SFRA’s funding formula meets constitutional muster.
Abbott XIX, supra,
196
N.J.
544 [ 960 A.2d 360 ],
The remand was to consider whether the new funding approach adopted by SFRA provided the constitutionally required thorough and efficient education, specifically to the children in the thirty-one Abbott districts. The Court’s decision made clear the “parity remedy” was not the only acceptable constitutional funding scheme.
Id.
at 563-64 [ 960 A.2d 360 ]. In light of the long history of the
Abbott
litigation, the Court imposed upon the State the obligation to demonstrate SFRA had developed and produced an equitable funding formula that ensures the Abbott districts have
*190
sufficient resources that will enable them to provide a thorough and efficient education, as defined by the CCCS.
Id.
at 564-65 [ 960 A.2d 360 ]. The same was with the recognition the existing decisions and orders of the Court would serve as the “starting point” for an analysis of the constitutionality of SFRA as applied to the students who are the beneficiaries of the prior Court rulings.
Id.
at 551 [ 960 A.2d 360 ].
The Court, in its
per curiam
decision, reviewed the development of the new funding formula embodied in SFRA It would be presumptuous, and unnecessary, to recount the same herein. The remand was to consider whether the new funding formula would accommodate the Abbott pupils’ resource needs, whether the special needs of disadvantaged students in the Abbott districts would be met sufficiently, and whether SFRA’s new approach is a successful alternative to the prior individual-district-needs-based approach.
Id.
at 566 [ 960 A.2d 360 ]. The burden of proof rested with the State.
Id.
at 565 [ 960 A.2d 360 ].
IV.
Prelude to SFRA—Generally
In November 2002, the State employed the consulting firm Augenblick, Palaieh and Associates (APA) to assist in determining the cost of providing an adequate education to this State’s students. Cert, of Lucille E. Davy (“Davy”), Commissioner of the New Jersey Department of Education (DOE), D-l H 4.
In designing SFRA, the DOE, in conjunction with APA, chose the Professional Judgment Panel (PJP) methodology because “it identifies the needed resources and determines the cost of providing services to students that are disadvantaged as well as to those that are not disadvantaged.” D-l If 6. It also accounts for different economies of scale and incorporates input from educators.
Ibid.
PJP process involves several tasks:
(1) identifying performance standards or outcomes that define the State’s educational goals;
(2) creating prototypical model school districts that reflect the state’s districts;
(3) designing education resource models (including equipment, personnel, and programs) with the use of practitioner panels;
*191
(4) determining the actual cost of the components identified in the models; and
(5) developing a funding formula which is to be used to derive the cost of providing a through and efficient education in any school district.
Id.
H 7.
In identifying performance standards, the DOE used the Core Curriculum Content Standards (CCCS), as the same were found constitutionally sufficient in
Abbott IV, supra,
149
N.J.
at 168 [ 693 A.2d 417 ].
Abbott XIX, supra,
196
N.J.
at 552-53 [ 960 A2d 360 ]. The CCCS “describe what students should know and be able to do in nine academic areas: visual and performing arts, comprehensive health and physical education, language arts literacy, mathematics, science, social studies, world languages, technological literacy, ... career education, and consumer, family, and life skills.” Dr. Jay Doolan Cert., D-73 1114. The CCCS are a dynamic set of standards intended for all students,
id.
111115, 21, which are to be reviewed and updated every five years.
N.J.S.A.
18A:7F-46(a). As such, the system for assessing the standards must be both dynamic in responding to new information and highly standardized to ensure “validity, reliability, and comparability.” D-73 1121. The CCCS were developed by the DOE and adopted by the New Jersey State Board of Education (BOE) in May 1996 with a statewide assessment system then heralded as “the beginning of a new era for public schools in the State.” D-73 H 5. By adoption of the CCCS and the assessment systems higher expectations for all New Jersey students were brought to bear. The CCCS was the BOE’s response to the
Robinson
and
Abbott
litigation. The standards were the product of a task force of educators, college professors, and representatives of business and industry who sought to create a curriculum framework in each content area. These standards were thereafter accepted by the Court as a means to define a “thorough and efficient education.”
In developing the model school districts, APA analyzed information compiled from each school district in the state to create six model districts based on the demographics of school districts in
*192
this State. Dep’t of Education & Augenbliek, Palaieh and Associates, “Report on the Cost of Education” (“RCE”), D-2;
see also Abbott XIX, supra,
196
N.J.
at 553 [ 960 A.2d 360 ]. District information gathered included district size, grade span, and the percentage of at-risk, limited English proficiency (“LEP”), and special education students.
Id.
In designing the resource model, the State utilized three rounds of practitioner panels. D-l H 8;
see also
D-2. The first round consisted of seven DOE employees.
Ibid.
The first panel recommended the resources needed in the six hypothetical districts. D-2 at 8. “Panel members were instructed to identify necessary resources and not to be overly constrained by concerns about cost, but they also were counseled not to design their dream school.”
Abbott XIX, supra,
196
N.J.
at 553 [ 960 A.2d 360 ]. The second round included participants nominated by stakeholder groups, such as the Education Law Center (ELC), New Jersey Education Association (NJEA), and New Jersey School Boards Association (NJSBA). D-l It 8. Specifically, the second group “included whole school reform facilitators, school business administrators, superintendents, a principal, and teachers with wide cross sections of [the State’s] schools.”
Ibid.
The second round’s large group was divided into smaller panels.
Ibid.
Each small group was assigned a school district of varying size from very small to very large.
Ibid.
These smaller groups “reviewed and modified the resources identified in round one.” D-2 at 8. The third group contained eight members—five superintendents, a school board member, a school business administrator, a professor in educational leadership from Kean University. D-l 118. The third panel provided a final set of recommendations. D-2 at 8.
In determining the actual costs of the resources needed, after the panels concluded, the DOE began to determine the costs by units rather than per pupil amounts. D-l H10. The DOE also
*193
updated the per pupil costs identified by the panels and calculated the weights to be applied to base per pupil amounts.
Ibid.
On December 12, 2006, the DOE issued the RCE, reflecting the work accomplished since 2002. D-l 1111. Immediately thereafter, the Department scheduled six formal hearings for public comment on the RCE.
Id.
H 14. At the hearings, the ELC and other public interest groups, NJEA, NJSBA, New Jersey Association for School Administrators, New Jersey Principals and Supervisors Association, individual legislators, taxpayers, school district employees and board members presented and/or submitted testimony.
Id.
H 15.
While the hearings were being conducted, the DOE retained three nationally recognized experts in the field of school finance— Dr. Allen Odden, Dr. Lawrence Picus, and Mr. Joseph Olchefske (“Odden”; “Picus”; “Olchefske”).
Id.
1118. Doctors Odden and Picus reviewed the RCE using their evidence-based model approach (“EBM”), which identifies school programs and education strategies proven to improve student learning.
Id.
1120. Ol-chefske provided input as well.
Ibid.
Odden synthesized the reports into one report issued on January 19, 2007 entitled “Final Report on the Reviews of the Report on the Cost of Education in New Jersey” (“Final Expert Report”).
Ibid.
The Final Expert Report commented on areas the experts found adequate and those in which they determined the DOE should make adjustments.
Ibid.
Their recommendations have been summarized as follows:
allocate more resources for professional development; expand the definition of “at-risk” to include students eligible for a reduced-price lunch;
7
use mean, instead of median, salary data; undertake additional research into the cost of substitute pay and employee benefits; employ a newer geographic cost adjustment; and simplify
*194
the formula by combining the base amounts for moderate, large, and very large districts.
Abbott XIX, supra,
196
N.J.
at 554 [ 960 A2d 360 ].
To develop a funding formula, upon the completion of the hearings and receipt of the final expert report, the DOE sought the advice of three additional experts—Mr. Thomas Corcoran, Dr. Susanna Loeb, and Dean David Monk (“Corcoran”; “Loeb”; “Monk”)—to serve as an advisory panel. D-l 1121. In addition, from April 2007 to December 2007, the DOE conducted stakeholder and legislator meetings.
Id.
H 22.
In response to the final expert report and public comments, and upon consultation with the advisory panel, the DOE made changes to the funding proposal, which are set forth in the DOE’s final proposal, entitled “A Formula for Success: All Children, All Communities” (“Formula for Success” or the “FFS”), D-12;
Id.
at 1123. The Formula for Success sets forth the model district and educational resources that enable children to meet the CCCS, laying the foundation for SFRA
Id.
1124.
The FFS sets forth the base costs of educational resources and augmented weights for middle and high school students.
Ibid.
It also delineates the appropriate weights for at-risk and LEP students.
Ibid.
The FFS utilizes one model district with enhanced resources in contrast to the six used in the RCE.
Id.
HH 25-26. In the single model, a large K-12 district, additional funds were provided for maintenance employees, annual capital improvements, instructional aides for at risk students, enhanced security, and other initiatives.
Id.
fH 26-27. The FFS expanded the definition of at-risk students to include those students receiving free and reduced priced lunches.
Id.
H 28.
The State chose the large district as a statewide model for the following reasons as set forth by the Court:
[the State] claims that larger districts generally are more efficient and that, therefore, the use of a larger model would provide incentive for the creation of larger, more efficient districts, consistent with the Legislature’s preference for such efficiencies. In addition, DOE asserts that large and extra-large districts tend to
*195
have more at-risk students, and generally are more likely to reflect the characteristics of a greater number of districts.
Abbott XIX, supra,
196
N.J.
at 555 [ 960 A.2d 360 ].
Y.
The PJP Process
The Professional Judgment Panel (“PJP”) approach is one of four accepted methodologies utilized to create a school funding formula. It brings educators and other individuals with knowledge of the education system together to identify resources necessary to educate students in a hypothetical district(s) to a specified standard. The process is now known as the “costing out” process. By way of the same, the level of resources needed for students to perform to specified standards, in New Jersey the CCCS, is identified.
In or about 2002 the DOE hired APA to conduct adequacy studies and to run the PJP process. There are four generally accepted methodologies to determine adequacy budgets: the successful school district approach; the PJP approach; the evidence based model approach (“EBM”); and the cost function approach. The DOE chose the PJP process which is the most commonly accepted methodology to determine adequacy budgets.
The process was described and summarized in the RCE. D-2. The PJP process was relied upon by the DOE to begin the process of the creation of a new funding formula in New Jersey.
APA is a, if not the, leading national consultant in the creation of school funding formulas utilizing the PJP process. APA has been retained by multiple states to utilize the process to develop adequacy budgets. The process is founded on the concept “the more eyes the better”; that is, the more experienced educators provide their expertise to an accepted construct, the more reliable the developed adequacy budget will be. APA identified the type of panelist required, generally experienced educators, and the DOE thereafter selected the panelists. All data provided to the various panelists was provided by the DOE.
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In New Jersey, three separate panels were convened. The lists of invited panelists were identified; D-2, appendix 6, 7 and 8 representing invited panelists for rounds 1 through 3, respectively.
The PJP process begins with the development of a hypothetical district(s) that reflects the demographies of the school districts in the State; panels are then assembled to determine resources needed in that hypothetical district(s) to meet a specified standard; and the identified resources are “costed out.”
In New Jersey the panelists were not provided with information concerning the then existing funding system, any of the concerns expressed in the various
Abbott
decisions or the deficiencies found therein, the supplemental program standard determined to be constitutionally required in
Abbott V
or, for that matter, any specific information as to the Abbott districts.
The first panel consisted of seven employees from the DOE.
8
The composition of this panel was challenged by the plaintiffs. Justin Ryan Silverstein (“Silverstein”), then an associate and now a partner with APA, testified he was satisfied the composition of this panel did not affect its validity.
The seven panelists comprising the first panel were given background information (D-2, appendix 4-1), various instructions (D-2, appendix 4-3), the CCCS (D-2, appendix 4-6 to 10), the assessment criteria (D-2, appendix 4-11), graduation requirements and length of school day and year (D-2, appendix 4-12). The panelists were provided a “blank slate” as to the resources to be deemed necessary. The panelists were told to limit their recommendations to what is necessary to meet the CCCS, not to construct a “dream school.” D-2 at 2. An APA representative was present and acted as a facilitator after the panel was convened and provided with the above information. The panelists met on Janu
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ary 21st through January 23rd, 2003 representing the longest period in APA’s experience for the conduct of the first panel.
The first panel was advised the CCCS and its assessment criteria were the standards to be utilized. The panelists were then to create a hypothetical district(s). A hypothetical district(s) was purposefully used with the understanding there would be no attempt to replicate any particular district. Rather, the hypothetical district(s) was to allow educators to review and determine needs premised upon what would be recognizable to the panelists. The panel was to conduct its work premised upon a “weighted student formula.” That is, the panelists used a base of 1.0 for elementary students without particular needs, and then additional characteristics were given additional weights. The four major characteristics were the size of the district, at-risk, LEP, and special education students. The weights were used to increase the base cost to provide for the resources and additional services necessary for students at higher grade levels and for students with special needs to achieve the CCCS.
Six hypothetical districts were created. Concededly, none of the hypothetical districts were premised upon information directly concerning the Abbott districts. Two districts were K-8 and were described as small and very small, and four were K-12 districts described as small, moderate, large and very large. At-risk students were defined as the percentage of low income students who were receiving free lunch, LEP students were the percentage of students in each district with limited English proficiency, and there were three levels of special education students: mild, moderate and severe. Data was assembled by the DOE and provided to the panelists with the understanding geographic location was not to be considered.
The panelists then identified resources, which the panelists constructed to include four principal categories: instructional staff, support staff, administrative staff, and other costs. Within the staff categories were various sub-categories of particularized
*198
personnel. “Other costs” included, but without limitation, supplies, equipment, technological resources, etc. Determinations were made as to each category and its sub-categories by way of resources needed for each. See D-2, appendix 9-28 for a complete listing of the various resources addressed. The first panel completed its work.
The second panel consisted of forty invited panelists.
9
The panelists composition was purposefully diversified to include educators as well as other individuals including a representative of a teachers’ union, an advocacy group (interestingly, the director of plaintiffs’ counsel, The Education Law Center), a labor leader and various educational associations. Silverstein testified this was the first such panel that had as its members a representative of an advocacy group and a teachers’ union. The panelists were divided into five individual panels with each panel provided a hypothetical school district (K-8 small and very small; four K-12 small through very large). The panelists met from February 20th through February 21st, 2003 with Silverstein noting two days is the average length of time for the second panel. Each panelist received the results of the first panel by way of Excel spreadsheets and were instructed they could make modifications as appropriate without limitations. The second group of panelists were also provided with the same materials as had been provided to the first panelists, but also received the results of the first panel. An APA representative was present for each panel and Silverstein testified the five individual panels understood them respective tasks, worked through the process, and produced what was deemed necessary.
The third panel, consisting of eight panelists (D-2, appendix 8), met on March 11th and March 12th, 2003 and reviewed the results obtained by the first and second panels. They were also provided
*199
with the same information as had been received by those panels. The panelists were five school superintendents, a professor from Kean University, College of Education, a school business administrator, and a school board member. The third panelists were told to create the final resources needed to adequately fund a system that could meet the CCCS. This panel’s work was more focused but, again, the panelists were told they could make changes as deemed appropriate and necessary. The third panel completed its work in March 2003. See D-2, appendix 9-1 to -43 for final determination of resources needed.
After the panel completed its work the “costing out” process was conducted by the DOE with APA’s assistance. For reasons not made clear, the APA’s study was put “on hold” and its report, the RCE, was released in December 2006. D-2. Although the PJP process generally only takes months to complete, the reason for the delay in the issuance of the RCE remains obscure. Despite the delay, Silverstein testified, unequivocally, the study remained rehable.
The APA thereafter reviewed the costing out process completed by the DOE and was satisfied the same was valid, reliable and credible.
Dean David Monk (“Monk” or “Dean Monk”), the Dean of the College of Education and a Professor of Educational Administration at Pennsylvania State University, was offered as an expert on behalf of the State, in part, to review the validity of the PJP process. His curriculum vitae evidenced his considerable academic achievements. D-91.
Dean Monk is a recognized expert in educational finance. His testimony was thoughtful, temperate, non-partisan and moderate in approach. Of all the experts who testified concerning the PJP process, Monk’s testimony was the most considered, evenhanded and well structured.
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Dean Monk has taught, researched and published concerning the subject of adequacy studies. He was qualified as an expert in education policy, finance and adequacy study methodology.
Monk was retained by New Jersey as a consultant in the summer of 2007 to advise the State on the development and implementation of a new school funding formula and to critique the PJP process, its conclusions, as well as the other studies commissioned by the defendant. He was charged specifically with reviewing the methodology utilized including the PJP process. The Dean opined the results of the PJP process and the utilization of a weighted student formula would provide an “appropriate formula” or an “acceptable result” if the process utilized was “correct” and the funding adequate.
A Weighted Student Formula is an appropriate and reasonable method to determine school funding. Experts in the field of adequacy have not only recognized a Weighted Student Formula as an appropriate method for school funding, but the growing consensus is that it is a preferred way to develop a school funding formula.
D-123 1113.
The process, when properly conducted, is constructed to provide an equitable result for all students, both within and beyond the Abbott districts. The Dean defined “appropriate” as the considered judgment of the resources needed to meet established standards, or in New Jersey's case, the CCGS. The process yields the best estimate of the resources needed to achieve the CCCS and is applied in an “even handed” manner. One of the benefits of the PJP process is it can be tailored to fit the needs of an individual State. The process itself, according to the Dean, brings together educators with varying perspectives who can share his/her acquired wisdom and expertise as it relates to the New Jersey educational process and the system to be constructed. The PJP process has been used to develop formulas for school fundings in many states in this country.
Dean Monk commented the PJP process is one of the four generally accepted methodologies for the preparation of adequacy studies. He noted no one method is perfect, each has its own
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strengths and weaknesses, but the PJP process was the most often utilized and the most popular for adequacy studies. He went so far as to reference the PJP process as the “preferred approach” and has found the same to be reliable generally and specifically as it pertained to New Jersey. Dean Monk testified it is important to have a teacher’s perspective on the panel(s), but a teacher’s focus is often upon the class and, therefore, should only be one voice among many needed and afforded the opportunity to participate in the process. Administrators generally bring a broader perspective to the panel. One of the particular benefits of the PJP process is there is no “over-reliance” on any one voice, such as that of a teacher.
In reviewing the RCE and APA’s conduct in running the PJP process in New Jersey, the Dean noted APA’s intervention was “very capable, able” and the firm and Augenblick, in particular, have a well-regarded reputation for running PJP panels. “APA are among the top experts in [the development of adequacy funding formulas through the PJP process].” D-123 f 19. Au-genblick, as well as APA, has a wealth of experience in many states and is considered a leader in the field as it concerns the PJP process. The Dean testified the PJP process was part of the State’s “good faith effort” to construct a constitutionally permissible formula and the process itself had been conducted “in good faith.” He further opined, “the use of the PJP process was reasonable and provided a systemic approach to connect the inputs and outputs of the educational funding system.” D-123 f 26.
The Dean was not concerned about the delay between the completion of the PJP process and the issuance of the RCE as it was his thought if the inflationary impact was considered, as it was in the instant matter, then the delay is not of moment. The same is, in part, attributable to the lack of fundamental change in resources/input information and the modest and minor changes made to the CCCS during the period of delay. As the resources/input data remains relatively stable over a three to five
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year period, the delay occasioned in the instant matter was not considered to be one of significance.
Dean Monk reviewed and considered the reports of Odden, D-105, and Picus, D-74. He described both as leaders in them field who are well regarded nationally. Monk found them studies, utilizing the EBM, to be reassuring as they had both come to similar conclusions as that contained in the PJP process using different approaches.
10
On the whole, the court found Monk to be highly persuasive and a compelling witness as his opinions were reserved, yet firm.
The principal attack on the PJP process itself on behalf of the plaintiffs was authored by Dr. Margaret E. Goertz (“Goertz”). Although Goertz’ qualification as an educator cannot be gainsaid, P-1, her critique of the PJP process was less than persuasive.
Goertz has been involved with the
Abbott
litigation for in excess of twenty years. Goertz testified in the remand hearing conducted before then A.L.J. Steven L. Lefelt in 1987, and thereafter testified before the Honorable Paul G. Levy, J.S.C. and the Honorable Michael Patrick King, P.J.A.D. in conjunction with subsequent remand hearings. One is compelled to wonder whether she has developed a vested interest in the issues presented thereby precluding a dispassionate review.
Goertz’ consideration of the PJP process was premised upon her review of other participants in the matter, principally Odden and Picus. She was compelled to admit both of those experts found the input/resources set forth by the PJP process were adequate to ensure a thorough and efficient education. Goertz’ familiarity with the process as an adequacy methodology was premised primarily upon her reading the various reports and reviewing the methodology utilized. She acknowledged she has not conducted a
*203
PJP process, has not been a participant in the PJP process, and recognized Dr. Augenblick as “more expert” on the PJP process, how it is operated, how it is run, than she. She further acknowledged the PJP process is one of four accepted methodologies in attempting to construct an adequacy budget, but also testified she was unable to offer an opinion whether the PJP process is an appropriate method to develop an adequacy formula. Goertz, 11 T 55:23-56:6.
11
Goertz found five flaws in the PJP process.
12
The purported flaws were as follows:
1. The first panel was comprised of State employees only;
2. There were “few” teachers on the various panels;
3. The panelists were not provided with information concerning the
Abbott
litigation and the Court’s imposed remedies;
4. The age of the report; and
5. The use of a model district.
None of the purported flaws are found to be persuasive. Although it was conceded the first panel was comprised solely of DOE employees,
13
Goertz makes no mention that panels 2 and 3 were afforded unbridled authority to modify the recommendations of panel 1 as deemed appropriate. The criticism that there were “few” teachers on the panel and an under-representation of the Abbott districts, was an insight into what appears to be Goertz’ vested interest. Goertz was compelled to admit on panel 3, the final panel to determine needed resources, three of the eight
*204
panelists were representatives of the Abbott districts and 37.5 percent hardly represents a “small” representation. Coneededly, the panelists were not provided information concerning the Abbott decisions or its imposed remedies, but the same ignores the PJP methodology which allows participants to identify needed resources to teach all children, not only those in Abbott districts. Goertz noted, as had other witnesses, the PJP process concluded in 2003 yet the report was not authored until 2006. Goertz was unable to substantiate the assertion significant changes had been made to the CCCS in the interim, which assertion was directly contravened by Commissioner Davy, although she did note subsequent to 2006 the assessment criteria had become more stringent.
Lastly, Goertz criticized the use of a model district asserting the same was “mismatched to any of the Abbott districts.” The same again ignores, though, the methodology of the PJP process which always utilizes a model district with the recognition a model district is utilized with the expectation it will not mirror or replicate any particular district. It is not possible to reconcile Goertz’ recognition of the PJP process as an accepted methodology while not accepting the utilization of a model district. Goertz’ secondary objection concerning the use of a model district as prohibited by
Abbott IV
is apparently contravened by the remand order. Were the Court to have found utilization of a model district prohibited, as urged by Goertz, then logically there would be no need for a remand hearing as the utilization of a model district was clearly before the Court when it rendered its November 2008 decision.
While certainly understanding Goertz’ position one “cannot separate the product from the process,” the same should not serve to invalidate a methodology which Goertz accepted. Recognizing there is no study on any correlation between funding and educational outcome, Goertz was not prepared to opine what amount of funding was necessary to ensure a thorough and efficient education while she was compelled to acknowledge New Jersey is
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one of the highest spending states in the country on educating its youth.
Dr. Clive Belfield (“Belfield”) was also called as an expert on behalf of the plaintiffs. Although the primary focus of Belfield’s testimony concerned supplemental programs as addressed in
Abbott V
and
X,
including high quality preschools under SFRA, he did testify concerning the PJP process. It is noteworthy, though, .there is no direct mention or criticism of the PJP process in the summary of his opinions (P-18), or in his augmented certification to this court dated January 29th, 2009 (P-19). Belfield acknowledged the PJP process is one of the four accepted methodologies with no one method being clearly better than the other three. His personal preference is for a blended approach utilizing the successful school district approach with the EBM. Belfield believes it is preferable to review what programs are effective, then estimate the costs to replicate, fund accordingly and have the districts be obligated to implement successfully the program with the State being responsible for monitoring performance.
Belfield did, though, opine during the course of his testimony the PJP process in New Jersey was “poorly implemented.” He first suggested the fault was not with the panelists, but rather, his conclusion of poor implementation was premised upon the flawed conclusions reached. He thereafter suggested the panelists must have been asked the wrong questions, although no specification was provided. Upon further inquiry, Belfield testified the “right” questions concerning input/resources/staffing were not posed. Belfield was particularly concerned the PJP process provided funding for at-risk populations capped at sixty percent, particularly when 24 of the 81 Abbott districts have an at-risk population exceeding that percentage and three have an at-risk population exceeding eighty percent. Belfield believed there was no literature to support cappin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2294246. Public record. Not legal advice.