Robbiani v. Burke

• Decision Date: 31 July 1978
• Citation: 77 N.J. 383,390 A.2d 1149
• Parties: Raymond ROBBIANI, Individually and as President of the Farmingdale Board of Education, et al., Plaintiffs-Respondents, v. Fred G. BURKE, Commissioner of Education and the State of New Jersey, Defendants-Appellants, and Stanley C. Van Ness, Public Advocate, Defendant.
• Court: New Jersey Supreme Court

Page 383

77 N.J. 383

390 A.2d 1149

Raymond ROBBIANI, Individually and as President of the Farmingdale Board of Education, et al Plaintiffs-Respondents, v. Fred G. BURKE, Commissioner of Education and the State of New Jersey, Defendants-Appellants and Stanley C. Van Ness, Public Advocate, Defendant.

Supreme Court of New Jersey.

Argued Feb. 21, 1978.

Decided July 31, 1978.

Susan P. Gifis, Deputy Atty. Gen., for defendants-appellants (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

Steven A. Pardes, Brick Town, for plaintiffs-respondents (Sim, Sinn, Gunning, Serpentelli & Fitzsimmons, Brick Town, attorneys; Eugene D. Serpentelli, Brick Town, of counsel).

The opinion of the court was delivered by

CONFORD, P. J. A. D. (temporarily assigned).

The dispositive issue before the Court is the constitutionality Vel non of N.J.S.A. 18A:33-5 which exempts from the mandatory school lunch program in the public schools, N.J.S.A. 18A:33-4, those individual schools in which under 5% Of the enrolled pupils qualify economically for free or reduced price lunches. The Superior Court, Chancery Division, held the exemption to deny equal protection of the laws to otherwise qualified school children in schools exempted from the mandatory program. At the same time the court held the invalid exemption provision to be severable from the act as a whole, thereby mandating the lunch program in every public school in the State. The Appellate Division affirmed in an unpublished opinion, essentially for the reasons orally expressed by the trial judge.

The School Lunch Act, L.1974, C. 53, reads as follows:

Each school district shall make school lunch available to all children enrolled in the district within 1 year from the effective date of this act. Such lunches shall meet minimum nutritional standards established by the Department of Education. Free and reduced price lunches shall be offered to all children qualifying under Statewide eligibility criteria. (N.J.S.A. 18A:33-4).

Any school in which less than 5% Of pupils enrolled meet the eligibility requirements for a free or reduced price lunch shall be exempt from the provisions of this act. (N.J.S.A. 18A:33-5).

The legislative history of these provisions is of some significance in relation to the equal protection inquiry whether the exemption in Section 18A:33-5 bears some rational relationship to the purpose and object of the legislation as a whole. Similar legislation had been proposed in the 1972 legislative session. Assembly Bill No. 1156 was captioned, "(a)n Act requiring that school lunch be made available to All children" (emphasis supplied), and contained no exemption for any schools. The accompanying statement noted that the bill's purpose was to assure access to lunch to "all public school children in every school district." The Assembly rejected the bill by a 67-2 vote, and did not again consider it as a body. 60 Leg.Index A-38 (No. 19 Jan. 15, 1974). The present act was submitted to the Assembly as Bill No. 442 in the 1974 session. With minor amendment, it passed in the Assembly by 67-5, again without an exemption provision. The bill then went to the Senate Education Committee where, by a 3-2 vote, it was disapproved. The committee then amended the bill by inserting for the first time the exemption now codified as N.J.S.A. 18A:33-5. ¹ As thus amended, the bill passed in the Senate by 28-6 and in the Assembly by 64-0. 61 Leg.Index A-12 (No. 18 July 22, 1974).

Responsibility for implementation of the act is vested in the Commissioner of Education, and has been delegated by him to the Bureau of Child Nutrition Programs of the Department of Education. Regulations concerning the providing of free and reduced price lunches are found in N.J.A.C. 6:79-1.1 Et seq. Each school conducts an annual survey to determine which of its enrolled students are eligible for such lunches under bureau-established standards. N.J.A.C. 6:79-1.4.

Once a lunch program is undertaken, local school districts are reimbursed by the State at a variable rate for each lunch served, the rate being determined by both the concentration of needy children per school and whether a lunch is served free or at reduced or full price. Federal funds are available to reimburse the districts for 75% Of the cost of purchase and installation of equipment such as refrigerators. There is no funding for salaries of local personnel involved in implementation of a lunch program except when State reimbursement for lunches exceeds costs; neither is there reimbursement for construction of necessary physical facilities.

The instant action was brought by a number of individuals in their capacities both as school board presidents and municipal taxpayers, together with the boards themselves. The complaint charged that the 5% Exemption provision in the law (1) denied plaintiffs equal protection of the laws, being arbitrary and without rational relationship to the purpose of the school lunch legislation; (2) "contravene(d) the thorough and efficient education mandated by the Constitution * * * "; and (3) "create(d) an undue burden on the plaintiffs." An injunction and a declaratory judgment were sought. Defendants Commissioner of Education and the State filed an answer and counterclaim seeking a declaration that the act was valid and an order compelling compliance with it by plaintiffs boards of education and other noncomplying school districts.

The Public Advocate was granted leave to intervene as a defendant. He originally took the position that the statute was valid. Later he urged that if the exemption provision was held invalid it should be deemed severable. On the appeal to the Appellate Division he argued: (a) that the exemption violated the 14th Amendment rights of the children in the exempted schools; and (b) the exemption provision of the act is severable. On the appeal to this Court the Public Advocate eschews any position in the matter, explaining that he fears that if the decision of the Appellate Division is affirmed new legislation is apt to be adopted cutting back on school lunches to needy pupils to a greater extent than the present act.

At the outset of the trial herein, the trial court granted summary judgment to defendants as against the plaintiff school boards on the ground that, as instrumentalities of the State, they had no standing to challenge the legislation. No appeal has been taken from that action. After trial the court rendered a decision construing the action to be one by the taxpayer plaintiffs on behalf of needy school children who would be deprived of lunches under the 5% Exemption. ² The court concluded that the exemption was without rational basis in the purpose of the act because some children would be deprived of lunch regardless of their need and some schools would be forced to initiate a lunch program in a given year yet be exempted the following year because of a shift in the percentage of needy children at the school in that year. It therefore held the exemption invalid, and, holding the invalid provision severable, declared the law to require a lunch program in every school district. As noted above, the Appellate Division affirmed on the same reasoning. We granted certification on the petition of defendants. 75 N.J. 520, 384 A.2d 500 (1977).

At the trial plaintiffs adduced testimony from various school district officials to the effect that in some relatively small districts the operation of the 5% Criterion would compel the institution of a lunch program and the corresponding need to purchase equipment therefor notwithstanding the fact that the percentage might subsequently fluctuate below and above the 5% Level. In at least one district with more than one school the percentage threshold resulted in a larger number of needy children attending an exempt school than a complying school. However, because of State and federal financial assistance toward school lunch programs, local tax rates would be increased by only a few cents on the dollar by implementation of such programs in any district. ³

I

The first question engaging our attention is whether there is any one in the case having standing to raise the question of denial to needy school children of equal protection of the laws. It seems clear that plaintiffs, as taxpayers seeking to invalidate the entire lunch program, do not represent the interests of such children, even though they attack the exemption provision as a step toward their ultimate position in the case. It is therefore doubtful that these plaintiffs have standing to raise equal protection claims of children. Normally an individual will be permitted only to seek judicial vindication of his own rights. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); State v. Norflett, 67 N.J. 268, 276, 337 A.2d 609 (1975). ⁴

However, we need not resolve the matter of standing here because we find that the activity of the Public Advocate in the case suffices to place before us the interests of the excluded school children. Furthermore, we conclude that the strong public interest in the resolution of this dispute warrants our consideration of the merits. Busik v. Levine, 63 N.J. 351, 363-364, 307 A.2d 571 (1973), app. dism. 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1974).

II

We thus address the merits of the equal protection attack as outlined above. Defendants defend the exemption provision on the following rationale. While the federal and State statutes look ultimately to the provision of school lunches for all needy children, both statutes, and the federal implementing regulations, contemplate some flexibility in relation to extent of coverage. As amended in 1970, the federal statute provided that "first priority * * * be given to providing free meals to the neediest children" 42 U.S.C.A. § 1758. In this connection the defendants also cite 7 C.F.R. § 210.4a(b)(5)(ii) directing "priority to schools in areas...