IN RE 1999-2000 ABBOTT v. Burke Implementing Regulations

• Decision Date: 22 February 2002
• Parties: IN RE the Matter of the 1999-2000 ABBOTT v. BURKE IMPLEMENTING REGULATIONS, N.J.A.C. 6:19A-1.1 et seq.
• Court: New Jersey Superior Court

792 A.2d 412

348 N.J. Super. 382

IN RE the Matter of the 1999-2000 ABBOTT v. BURKE IMPLEMENTING REGULATIONS, N.J.A.C. 6:19A-1.1 et seq.

Superior Court of New Jersey, Appellate Division.

Argued October 9, 2001.

Decided February 22, 2002.

David G. Sciarra, Executive Director, argued the cause for appellants (Education Law Center, attorneys; Mr. Sciarra, on the brief).

Michelle Lynn Miller, Deputy Attorney General, argued the cause for respondent, Department of Education (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Nancy Kaplan, Assistant Attorney General, of counsel; Ms. Miller on the brief).

Zazzali, Zazzali, Fagella & Nowak, attorneys for Amicus Curiae New Jersey Education Association (Richard A. Friedman, on the brief).

Before Judges HAVEY, COBURN and WEISSBARD. The opinion of the court was delivered by HAVEY, P.J.A.D

Appellants, a group of children who attend public schools in special needs districts designated as "Abbott districts," challenge the constitutionality of regulations promulgated by the Department of Education (DOE) pursuant to the Supreme Court's directives in Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (1998) (Abbott V) and Abbott v. Burke, 163 N.J. 95, 748 A.2d 82 (2000) (Abbott VI). The challenged regulations were codified at N.J.A.C. 6:19A-1.1 to -8.1 and recodified with amendments as N.J.A.C. 6A:24-1.1 to -9.6, which are scheduled to expire in June 2005. 32 N.J.R. 1329, 1329-41 (April 17, 2000); 32 N.J.R. 2470, 2470-83 (July 3, 2000). Essentially, appellants claim that the regulations failed to codify the Court's mandates in Abbott V and Abbott VI. Prior to its decisions in Abbott V and Abbott VI, the Court had held in Abbott v. Burke, 149 N.J. 145, 152-53, 693 A.2d 417 (1997) (Abbott IV), that the Comprehensive Education Improvement and Financing Act of 1996 (CEIFA or the 1996 Act), L. 1996, c. 138, was unconstitutional as applied to school districts that served children in poor districts and that were classified as "special needs districts." The Court ordered the State to provide increased funding to the twenty-eight "Abbott" school districts, and to manage implementation of the additional funding so as to further the students' ability to achieve at the level prescribed by the Core Curriculum Content Standards (CCCS) adopted by the DOE. Id. at 224-25, 693 A.2d 417.

The Court in Abbott IV directed the Commissioner of Education (Commissioner) to conduct a comprehensive study of the needs of students in the Abbott districts, specify programs that would address those needs, determine the costs of those programs, and devise a plan for implementation. Ibid. In addition, the Commissioner was ordered to review the facilities needs of the Abbott districts and provide recommendations on addressing those concerns. Id. at 225, 693 A.2d 417. The Commissioner was to provide to the Superior Court interim progress reports and a final report. Ibid. The Court appointed Judge King of the Appellate Division, to conduct hearings on the Commissioner's report, and he issued a report and recommendation dated January 22, 1998. Abbott V, supra, 153 N.J. at 493,710 A.2d 450. In Abbott V, the Court relied on Judge King's report to explain the remedial measures it deemed necessary "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.

The key to the Abbott reform efforts is implementation in elementary schools of a concept known as "whole-school reform." Id. at 494-502, 710 A.2d 450. Whole-school reform is a comprehensive approach that integrates reform efforts throughout a school on an institutional level, so as to affect the culture of the entire school, including instruction, curriculum, and assessment. Id. at 494, 710 A.2d 450. During the hearings conducted by Judge King, the Commissioner recommended the adoption of a version of whole-school reform known as Success for All—Roots and Wings (SFA). Id. at 494-95, 710 A.2d 450. School-based management teams (SMTs), consisting of school administrators, teachers and parents, are an essential component of the SFA model, which relies on the assumption that each of these different groups will "buy into" the program. Id. at 496-97, 710 A.2d 450. Another key aspect of whole-school reform is "zero-based budgeting" whereby a school combines all of its revenue sources and uses the entirety of its funds to implement the reform, rather than allocating certain funds to specific programs. Id. at 498, 710 A.2d 450.

The Commissioner proposed a version of the SFA that expanded "every element" of the model including, for example, a reduction in the model's recommended class sizes, an increase in the number of tutors per student, and the inclusion of substantial technology components. Id. at 497, 710 A.2d 450. In addition to the SFA model, the Commissioner proposed that a school could adopt one of four other models "if it could show convincingly that the alternative model it chose would be equally effective and efficient as SFA or that the model was already in place and operating effectively." Id. at 494, 710 A.2d 450.

Accepting evidence of the success of whole-school reform programs that encompassed SFA, the Court stated:

[W]e adopt Judge King's recommendation "that the State require the Abbott districts to adopt some version of a proven, effective whole-school design with SFA-Roots and Wings as the presumptive elementary school model." We direct that implementation proceed according to the schedule proposed by the Commissioner and that SFA contain the essential elements identified by the Commissioner. Finally, we direct the Commissioner to implement as soon as feasible a comprehensive formal evaluation program, modeled on SFA's formal evaluation precedents, to verify that SFA is being implemented successfully and is resulting in the anticipated levels of improvement in the Abbott elementary schools.

[Id. at 501-02, 710 A.2d 450 (citations omitted).]

The Court rejected appellants' contention that SFA was beyond the DOE's statutory authority and inconsistent with the Court's decision in Abbott IV. Id. at 499, 710 A.2d 450. It found that the Commissioner's "broad remedial powers" under the CEIFA provided sufficient authority for the Commissioner's actions. Id. at 499-501, 710 A.2d 450.

In addition to adopting the whole-school reform approach for elementary schools, the Court examined the aspects of whole-school reform relevant to early childhood education programs, recognizing that early childhood education was "essential" for children in Abbott districts and "an integral component of whole-school reform." Id. at 502-08, 710 A.2d 450. Specifically, the Court adopted Judge King's recommendation for the implementation of full-day kindergarten "immediately" or, as an alternative for schools unable to obtain promptly sufficient space or instructors, by commencement of the September 1999 school year. Id. at 503, 710 A.2d 450. In addition, it directed the Commissioner "to exercise his power" under CEIFA "to require all Abbott districts to provide half-day pre-school for three- and four-year-olds." Id. at 508, 710 A.2d 450. The Court permitted the Commissioner to implement the pre-school programs by "authoriz[ing] cooperation with or the use of existing early childhood and day-care programs in the community." Ibid.

Although the Commissioner declined to recommend the adoption of whole-school reform for middle and high schools, he did recommend several supplemental programs that could be implemented at all levels, from elementary to high school. Id. at 508-09, 710 A.2d 450. The most significant supplemental programs involved the provision of health and social services, and increased security measures. Id. at 509-14, 710 A.2d 450. The Court recognized that the Abbott schools would have varying needs for supplemental programs. Id. at 517, 710 A.2d 450. Thus it "authorize[d]" the Commissioner to implement technology programs "at the request of individual schools or districts or as he otherwise shall direct" and "to implement alternative schools or comparable education programs." Ibid. It "direct[ed] the [C]ommissioner to authorize accountability programs, as may be deemed necessary or appropriate" and to implement school-to-work and college-transition programs in secondary schools "at the request of individual schools or districts or as the Commissioner otherwise shall require." Ibid. The Court concluded:

In respect of the other supplemental programs, we decline to order their immediate district-wide implementation, even though all such programs are sound in principle. Rather, because the needs for these programs will vary from school to school, we direct the Commissioner to provide or secure the funding necessary to implement those programs for which Abbott schools or districts make a request and are able to demonstrate a need. We reiterate that for middle and secondary schools, which will not have the benefit of whole-school reform, such supplemental programs may be necessary to ensure the educational success of their students.

[Ibid.]

The Court also recognized that disputes would arise from the administration of the public education that would be prompted by the reforms, including "the implementation, extension, or modification of existing programs, the need for additional supplemental programs, the allocation of budgeted funds, the need for additional funding, and the implementation of the standards and plans for the provision of capital improvements and related educational facilities." Id. at 526, 710 A.2d 450. The Court determined that disputes relating to those matters would be considered "controversies" under the School Laws, N.J.S.A. 18A:7A-1 to 7F-34, and established the process to be followed to resolve such controversies. Id. at 526-27, 710 A.2d 450.

The Court summarized its directions to the Commissioner as follows:

In...