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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"> 348 N.J. Super. 382"> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original WP 5.1 Version

This case can also be found at 348 N.J. Super. 382, 792 A.2d 412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION IN RE THE MATTER OF THE 1999-2000 ABBOTT V. BURKE IMPLEMENTING REGULATIONS, N.J.A.C. 6:19A-1.1 et seq. Argued October 9, 2001 - Decided February 22, 2002 Before Judges Havey, Coburn and Weissbard. On appeal from the New Jersey Department of Education.

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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). 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 (1998) (Abbott V) and Abbott v. Burke, 163 N.J. 95 (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 (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
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Core Curriculum Content Standards (CCCS) adopted by the DOE. Id. at 224-25. 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. 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. 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. The key to the Abbott reform efforts is implementation in elementary schools of a concept known as "whole-school reform." Id. at 494-502. 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. 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. 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. 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. 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. 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. 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 (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. It found that the Commissioner's "broad remedial powers" under the CEIFA provided sufficient authority for the Commissioner's actions. Id. at 499- 501. 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. 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. 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. 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

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high school. Id. at 508-09. The most significant supplemental programs involved the provision of health and social services, and increased security measures. Id. at 509-14. The Court recognized that the Abbott schools would have varying needs for supplemental programs. Id. at 517. 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 collegetransition 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. 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. The Court summarized its directions to the Commissioner as follows: In summary, and consistent with this opinion, we determine and direct that the Commissioner implement wholeschool 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 necessary 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.] The Court ordered the Commissioner "to promulgate regulations and guidelines that will codify the education reforms incorporated in the Court's remedial measures." Id. at 526. By statutes effective June 28, 1999, the Legislature expedited the procedure for the adoption of Abbott regulations for the 1999-2000 school year, and authorized amendments to be made thereafter in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1. N.J.S.A. 18A:7F-35. The statute provided that any regulations adopted pursuant to this procedure would expire June 30, 2000. Ibid. The Legislature also authorized the State Board of Education (Board) to adopt regulations for the 2000-2001 school year to implement the Supreme Court's directive in Abbott V. N.J.S.A. 18A:7F-36. On September 9, 1999, after public hearings were held, the DOE adopted as N.J.A.C. Chapter 6:19A, rules for "Urban Education Reform in the Abbott Districts," to be effective on September 10, 1999, and to expire on June 30, 2000. 31 N.J.R. 2924, 2924 (Oct. 4, 1999). Generally, the regulations: (1) provided for the establishment of SMTs; (2) mandated the adoption of a DOE- approved program of whole-school reform, or an alternative program design, by all schools in the Abbott districts; (3) established school-based budgeting; (4) implemented required programs in the secondary schools; and (5) provided a format to guide the school districts in their requests for State aid, and a formula for determining a district's facilities' needs. 31 N.J.R. at 2953-64.

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On November 16, 1999, appellants filed a notice of appeal challenging the regulations as arbitrary, capricious, and contrary to law. On March 7, 2000, the Supreme Court decided a motion in aid of litigant's rights filed by appellants to enforce their rights as set forth in Abbott V. Abbott VI, supra, 163 N.J. at 100. Appellants claimed that the Commissioner had "repudiated his promise to provide quality preschool education for the disadvantaged school children who reside in the Abbott districts," and that "systemic failures" required the Court's intervention. Ibid. Although the Court rejected appellants' broader claim of bad faith and noncompliance by the Commissioner, it did conclude that the DOE's use of uncertified teachers in its preschool programs "violates the Abbott V requirement to establish quality preschool programs for three- and four-year old children." Id. at 100-01. The Court also found that "the programs that have been implemented do not conform to the proposals that were accepted by the Court." Id. at 105. In response to the Court's decision in Abbott VI, the DOE readopted the N.J.A.C. 6:19A regulations with amendments, recodified as N.J.A.C. 6A:24-1.1 to -9.6, scheduled to expire in June 2005 (the "2000-2005 regulations"). 32 N.J.R. at 2470. The amendments implemented rules to ensure the quality preschool education directed by the Court in Abbott VI, and established a full-day kindergarten for five-year-olds. 32 N.J.R. at 1332-36. The amended regulations, effective June 8, 2000, 32 N.J.R. at 2470, are divided into nine subchapters. Subchapter 1, "General Provisions," states the purpose and applicability of the rules, provides definitions, and establishes the assignment of School Review and Improvement Teams (SRI). N.J.A.C. 6A:24-1.1 to -1.6. Subchapter 2, "School Management Teams" (SMT), establishes SMT guidelines. N.J.A.C. 6A:24-2.1 to -2.3. Subchapter 3, "Early Childhood Education," implements a full-day kindergarten program, sets teacher-to-child ratios and class sizes, and establishes teacher credentials. N.J.A.C. 6A:24-3.1 to -3.4. Subchapter 4, "Whole School Reform" (WSR), establishes a time frame for submission by secondary schools of applications for implementation in the 2001-02 school year of WSR or alternative program and procedure for implementation of annual school-based budgets. N.J.A.C. 6A:24-4.1 to -4.5. Subchapter 5, "Supplemental Programs and Services," provides standards to determine whether a school demonstrates a particularized need for supplemental educational programs. N.J.A.C. 6A:24-5.1 and -5.2. Subchapter 6, "Required Programs in Secondary Schools," requires that SMTs submit annually a revised plan for the implementation of required programs and identifies components of the plan. N.J.A.C. 6A:24-6.1. Subchapter 7, "District Budget and Request for Additional State Aid," sets forth considerations for submission and approval of balanced school-based budgets. N.J.A.C. 6A:24-7.1. Subchapter 8, "Facilities," requires that each district submit a long-range facilities plan, establishes several applicable definitions and standards to be used, and sets forth the Commissioner's treatment of a plan. N.J.A.C. 6A:24- 8.1.See footnote 11 Subchapter 9, "Appeals," establishes an appeal procedure for an applicant aggrieved by the DOE's decision regarding an application to improve or amend an existing program, or to adopt a supplemental program, implement a required secondary program, build or renovate school facilities, or seek additional aid. N.J.A.C. 6A:24-9.1 to -9.6. I STANDARD OF REVIEW Appellants first contend that we must apply a de novo standard of review to their challenge to the DOE's Abbott regulations because the appeal raises constitutional issues related to the DOE's noncompliance with its constitutionally prescribed duties and statutory requirements, and because the issues involve implementation of the Supreme Court's remedial orders entered in previous Abbott cases to effectuate a constitutional decree. The Education Clause of the New Jersey Constitution mandates that "[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,

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