(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued September 25, 2001 -- Decided February 21, 2002
Poritz, C.J., writing for a majority of the Court.
This is the second motion in aid of litigants' rights filed by the Education Law Center since the Court
decided Abbott V in 1998. On October 22, 2001, the Court entered an Order that established, in part, a timetable
for decision-making and appeals in respect of preschool programs and budgets for the 2002-2003 school year. In
addition, the Court declined to appoint a Standing Master for Abbott matters. Today's opinion amplifies the
October Order and clarifies further the directions contained in Abbott VI, which was decided on May 7, 2000.
In Abbott V, the Court determined that the Office of Administrative Law (OAL) should hear controversies
involving Abbott districts. After Abbott VI, certain global issues were referred to Acting Chief Judge Masin of the
OAL for findings and recommendations. He released his Initial Decision in In re: Abbott Global Issues on April 20,
2001.
The within motion was filed on May 17, 2001. The Court withheld consideration of the motion pending
the Commissioner of Education's Final Decision in response to the Chief Judge's recommendations. The
Commissioner issued his decision in June and the Court heard oral argument in September. As noted, the Court
entered its Order on October 22, 2001, with the within opinion to follow.
HELD: Portions of the relief sought in this litigation have been provided by the Commissioner of Education as a
part of the administrative process. Delays in decision-making and provision of granted relief, however, have
impeded full implementation of the Abbott preschool programs. Adherence to the time frames established by the
Court will result in timely determinations, as will cooperation and collaboration between the parties. The Court
declines to grant plaintiffs' request for the appointment of a Standing Master.
1. The chronology of this dispute demonstrates that these matters have not been promptly resolved. Timely
disposition of Abbott cases is critical for the children living in the Abbott districts. Decision-making in respect of
programs for the next school year must be completed in time for implementation in the next school year if the
process is to be successful. (pp. 4-8)
2. The Court's October Order did more than establish a schedule for the submission, review, and appeal of Abbott
district preschool program and budget proposals. It reaffirmed the concept that cooperation between the districts
and the Department of Education (DOE) is essential, including through the administrative appeal process. It also
denied ELC's renewed request for a Standing Master. Although much remains to be done, because of the progress
that has been made and because of the ongoing effort to fulfill the Abbott mandates, the Court cannot justify a new
and superseding role for the judiciary. The Court is further encouraged by the collaborative effort now underway.
In response to consensual applications, the Court has twice modified the scheduling portion of its October 2001
Order to assist the parties. (pp. 8-11)
3. In Abbott VI, the Court directed the DOE to provide “substantive educational guidance” for all Abbott districts.
In April 2000, the DOE adopted its Expectations, which are similar to the Core Curriculum Content Standards for
grades K-12. Expectations did not, however, include specific details. DOE promised to create a curriculum strategy
(the “Framework”) to supplement Expectations. A final draft is to be completed by April 30, 2002. In the
meantime, Abbott districts are integrating the goals of the Expectations with nationally-recognized preschool
curriculum models. (pp. 13-16)
4. Enrollment in Abbott preschool programs is not compulsory. In some communities, recruitment will be critical
to the success of the preschool venture. At present, if the districts do not have at least 50% of the projected
preschool population in approved programs, the local board is required to develop a corrective plan for approval by
the Commissioner. Acting Chief Judge Masin was confronted by conflicting expert testimony on the correct
measurement of preschool enrollment. He urged the DOE to adopt a uniform standards to measure preschool
enrollment and to determine the need for community outreach. The DOE has published proposed regulations that
provide for a uniform standard for calculating prospective enrollments. In addition, the DOE has proposed that the
“trigger” for corrective action be raised from 50% to 90% by the 2003-2004 school year. (pp. 17-20)
5. The goal of the outreach program is to inform parents of preschool children about preschool opportunities in
Abbott districts. Although there have been encouraging results from specific efforts, the DOE must work with
districts that need corrective action plans. (pp. 20-22)
6. In Abbott VI, the Court approved the use of community providers as long as they met the stringent requirements
the State imposed on them. In the within application, plaintiffs complain that the DOE has excluded some of the
Head Start programs identified in district plans. The Court is troubled by reports that Head Start programs are
facing decreasing enrollment, escalating loss of staff, and financial difficulties. Head Start provides an invaluable
service in Abbott districts. The problem is the cost of bringing Head Start programs up to State standards.
Reasonable supplemental funds must be provided so that Head Start (and other appropriate community providers)
can meet the more demanding State preschool requirements. (pp. 22-27)
7. The Court finds that the DOE's “grandfathering” of certified elementary school teachers with two years'
preschool experience is a reasonable response to the establishment of new certification requirements that would
otherwise adversely affect experienced, certified teachers. (pp. 27-28)
8. Active and ongoing regulatory guidance from the DOE is essential throughout the budget process. District
requests must be developed and articulated with specificity and, equally important, the DOE must respond with
appropriate explanations. Budget calculations must yield funding decisions that are based not on arbitrary,
predetermined per-student amounts, but on a record containing funding allocations that are generated by a thorough
assessment of actual needs. (pp. 28-33)
9. Pending the renovation of existing structures and the construction of new facilities, Abbott districts have been
required to use temporary facilities to accommodate students. The DOE does not deny that the number of modular
units available to Abbott districts was insufficient. Nonetheless, the State asserted at oral argument that all Abbott
districts except Elizabeth would be in a position to serve all of the enrolled full-day preschool children within a few
months. On the record before the Court, it is unable to determine the full extent of the problem. Abbott districts
anticipating increased enrollments should, therefore, have in place a contingency facilities plan that has been
reviewed and approved by the DOE. (pp. 33-37)
The motion for relief in aid of litigants' rights is GRANTED IN PART AND DENIED IN PART.
LaVecchia, J., concurring in part and dissenting in part, joins in the majority's rejection of a Standing
Master and the clarification of the time frame for administrative, submissions, reviews, and appeals. She is of the
view, however, that the record before the Court is completely inadequate to permit a detailed analysis of most of the
arguments raised by plaintiffs and various amici curiae. Furthermore, she writes to emphasize her view that the
“needs assessment” requirement for community providers does not mean that the State must insist that a district
reach financial agreement with community providers “at any cost.”
Stein, J., dissenting, is of the view that given the thirty-year history of legislative and executive branch
unwillingness to address the deficiencies in urban education, the Court's refusal to designate a Special Master to
monitor and resolve disputes quickly and effectively means that the Court is passively allowing further obstruction
and delay by requiring the parties to use an adjudicative process that has failed during the past three years and will
not work in the future. He also states that the record demonstrates clearly and convincingly, with virtually no
contest by the State, that the Department of Education's neglect of the Abbott facilities problem materially has
hindered full availability of preschool.
In respect of the funding of Head Start programs, Justice Stein concludes that although the majority has
correctly recognized that Head Start children should not be excluded from Abbott preschool program, the Court has
failed to provide the Head Start programs with any mechanism to enforce its holding. He goes on to express his
view that funding issues will present the most difficult challenge for both the State and the Abbott districts and that
the need for responsibility, pragmatism, and exceptional expertise is even more acute in the resolution of such
issues, for the benefit of the State as well as the districts. Only a highly qualified Special Master appointed by the
Court could offer the necessary stability, uniformity, practicality, and reduced friction that would make the dispute
resolution process work.
JUSTICES COLEMAN and LONG join in the opinion of CHIEF JUSTICE PORITZ in its entirety.
JUSTICE LaVECCHIA has filed a separate opinion, concurring in part and dissenting in part. JUSTICE
STEIN has filed a separate dissenting opinion. JUSTICES VERNIERO and ZAZZALI did not participate.
SUPREME COURT OF NEW JERSEY
M-1
131 September Term 2000
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 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-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-Respondents.
Argued September 25, 2001 -- Decided February 21, 2002
On motion in aid of litigants' rights from
the judgments of this Court, whose opinions
are reported at
153 N.J. 480 (1998) and
163 N.J. 95 (2000).
David G. Sciarra, Executive Director,
Education Law Center, and Paul L.
Tractenberg argued the cause for movants
(Mr. Sciarra, attorney; Mr. Sciarra and
Jennifer R. Weiser, on the briefs).
Nancy Kaplen, Assistant Attorney General,
argued the cause for respondents (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney; Ms. Kaplen, Michelle Lyn Miller
and Michael C. Walters, Deputy Attorneys
General, on the briefs).
Maxim A. Thorne, Deputy Director, argued the
cause for amici curiae New Jersey Headstart
Association, National Association for the
Advancement of Colored People, Early
Childhood Coalition of Paterson, and Early
Childhood Coalition of Newark (John D.
Atlas, Executive Director, Passaic County
Legal Aid Society, attorney; Mr. Thorne and
Maya Horton Harris, on the letter brief).
Richard E. Shapiro argued the cause for
amici curiae City of Elizabeth Board of
Education and City of Passaic Board of
Education.
Francis X. Journick, Jr., argued the cause
for amicus curiae Board of Education of the
City of Perth Amboy (Wilentz, Goldman &
Spitzer, attorneys).
Cecelia M. Zalkind argued the cause for
amicus curiae Association for Children of
New Jersey (Ms. Zalkind, attorney; Cynthia
C. Rice and Keri E. Logosso, on the letter
brief).
Richard A. Friedman submitted a brief on
behalf of amicus curiae New Jersey Education
Association (Zazzali, Fagella & Nowak,
attorneys).
Paulette Brown submitted a letter in lieu of
brief on behalf of amicus curiae The Black
Minister's Council of New Jersey (Duane
Morris & Heckscher, attorneys).
The opinion of the Court was delivered by
PORITZ, C.J.
This is the second motion in aid of litigants' rights filed
by the Education Law Center (ELC or plaintiffs) since the Court
decided Abbott v. Burke,
153 N.J. 480 (1998) (Abbott V). See
Abbott v. Burke,
163 N.J. 95 (2000) (Abbott VI). As before, the
ELC alleges that the Commissioner of Education (Commissioner) has
failed to comply with the Court's mandate in Abbott V, and now
Abbott VI, and requests that we order specific relief in respect
of preschool programs in the Abbott districts, including the
appointment of a judge of the Superior Court to hear and resolve
anticipated disputes. For the reasons set forth in this opinion
and in our Order of October 22, 2001, we have 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.” Abbott v.
Burke, No. M-1131, at 3 (N.J. Oct. 22, 2001) (October Order). We
have, however, declined to appoint a Standing Master for Abbott
matters. Having “commit[ted] in Abbott V and Abbott VI to use of
the administrative process established by the Legislature for
Executive Branch decision-making,” we find no reason to retreat
from that commitment now. Ibid.
This opinion amplifies our October Order and clarifies
further our direction in Abbott VI.
In Abbott V, the Court determined that disputes involving educational programs in the Abbott districts “shall be considered 'controversies' arising under the School Laws[,] N.J.S.A. 18A:7A- 1 to 7F-34.” 153 N.J. at 526. Such controversies, we noted, may be heard as contested cases by an Administrative Law Judge, whose recommendation the Commissioner could approve or disapprove, with the final decision left to the State Board of Education on appeal by the losing party.See footnote 11 Even when the ELC returned to the Court in July 1999 claiming non-compliance by the Commissioner with the mandates of Abbott V, there were factual and legal issues concerning preschool programs pending before the Chief Judge of the Office of Administrative Law (OAL) that we did not resolve when we issued Abbott VI. See Abbott VI, supra, 163 N.J. at 120. In Abbott VI, we reaffirmed our previous determination sustaining in large measure the Commissioner's proposals for the operation of quality half-day preschool in the Abbott districts. Because the disputes centered around substantive educational standards, teacher certification, class size, daycare-provider contracts, adequate facilities, supplemental funding, and community outreach, we focused on the resolution of those issues in order to provide further guidance and expedite program implementation. We anticipated that the unresolved matters would be timely reviewed through the administrative process.
Our opinion in Abbott VI was filed on March 7, 2000. In April 2001, Acting Chief Judge Masin (Chief Judge) released his Initial Decision in In re Abbott Global Issues, No. EDU 3246-01 (OAL April 20, 2001) (OAL Initial Decision). As its name suggests, that case arose out of a set of so-called systemic issues identified by the ELC prior to the Court's decision in Abbott VI and modified thereafter to reflect our ruling. Those issues were considered by the ELC to “involve general systemic deficiencies in the manner and process by which the [Department of Education] has responded to its [Abbott preschool] obligations.” Id. at 4. Individual district-related cases remained with other Administrative Law judges and were apparently withdrawn, settled or held awaiting a decision in In re Abbott Global Issues.
When, on May 17, 2001, plaintiffs moved in aid of litigants' rights before this Court, we held review of their application pending the Commissioner's final decision in response to the Chief Judge's recommendations. Under the legislative scheme for administrative adjudication, it is the Commissioner's task to consider the policy ramifications of the Abbott cases. The Commissioner's final decision is therefore an integral and necessary step in the administrative process. See, e.g., N.J.S.A. 52:14F-7; IMO Certain Sections of the Uniform Administrative Procedural Rules, 90 N.J. 85, 91-92 (1982). After the issuance of the Commissioner's Decision in June 2001, and after supplemental briefing and oral argument in September 2001, we ordered relief in the form of time frames for expeditious dispute resolution within the structure established by the Legislature. See October Order.
This procedural history is important. Although the venue for Abbott disputes has been established in the Administrative Procedures Act, Abbott V, supra, 153 N.J. at 526, the chronology of this dispute informs us that these matters are not promptly resolved. At best, the Department of Education (DOE or Department) has been slow to respond to the districts' submissions. At worst, the Department's responses have provided little guidance so late that resolution cannot be accomplished before the next group of children is scheduled to arrive in September. In short, on the question of timely disposition, the record is dismal.
Timely disposition of contested Abbott cases is critical for children living in the Abbott districts. Decision-making in respect of programs for the next school year must be completed in time for implementation in the next school year if the process is to be meaningful. As more parents become aware of the opportunity to enroll their children and do so, classrooms must be available, certified teachers must be hired, and instructional materials must be prepared, to mention but a few of the many necessary components of an expanding preschool program. When that does not happen, the high quality educational experience promised for the Abbott districts cannot be fully implemented from year to year. When three- and four-year-old children are denied the opportunity to attend a quality preschool, the advantages of early exposure to that educational experience are irretrievably lost.
But the Court's October Order does more than establish a schedule for the submission, review and appeal of Abbott District preschool program and budget proposals. In Abbott VI, we said,
Cooperation between the districts and the DOE
is essential to this effort if it is to
succeed. For too long, there has been
suspicion and distrust. The [Association for
Children of New Jersey] has built a coalition
of educators and providers that demonstrates
the value of collaboration and consensus
building. It is our hope that the
adversarial relationship between the parties
will give way to a cooperative effort focused
on the provision of high-quality preschool
programs for children in the Abbott
districts. The children deserve no less.
That cooperative effort is only possible if the DOE staff works
with the Abbott districts in the preparation of their plans, and
continues through the administrative appeal process to accept
supplemental documentation and to assist the districts in curing
any deficiencies that have caused the Department to reject any
plan.
Our October Order also denied ELC's request for a Standing
Master. Adherence to an administrative process tied to
expeditious decision-making that includes cooperative efforts
toward the resolution of disputes is greatly preferred over a
structure superimposed by the courts. We do not find
deficiencies in the implementation of Abbott preschool programs
sufficient to justify the extreme remedy of court supervision.
We remain troubled, however, by the delays and the DOE's apparent
reluctance to deal with funding and other difficult but
determinative issues in a timely manner. Abbott V was decided
more than three-and-a-half years ago. The districts'
Applications for State School Aid indicate that, as of October
13, 2000, just over 22,000 preschool students were enrolled in
the Abbott programs. According to plaintiffs, 34,600 three- and
four-year-old children were expected to attend those programs in
2001-02. Although estimates vary, as many as 58,600 children may
have been eligible to attend as of September 2001. Clearly, much
remains to be done.
Nonetheless, we sharply disagree with our dissenting
colleague regarding the progress made in the development and
implementation of the Abbott preschool programs. He continues to
urge court supervision of responsibilities entrusted to the
Executive and Legislative branches of our government by the New
Jersey Constitution. This record cannot, however, support the
extraordinary remedy the dissent would grant. It was in 1998 in
Abbott V, that this Court first considered the specific preschool
proposals that had been presented in hearings before Special
Master Judge King. 153 N.J. at 493. During the intervening four
years, as required by Abbott V, id. at 501-02, the State has
undertaken whole school reform in the Abbott districts, including
the preschool programs at issue in this case. Today, three out
of every five children in the Abbott districts participate in
those programs. Much has been accomplished. In short, because
of the progress made and because of the ongoing effort to fulfill
the Abbott mandates, we cannot justify a new and superseding role
for the courts in this matter.
We are further encouraged by the collaborative effort now
underway. By Notice of Motion filed on December 20, 2001,
plaintiffs sought a stay for one month of the January 5, 2002
deadline established by the Court for the DOE's initial
determinations on the Abbott districts' 2002 preschool program
and budget proposals. Because a new Governor was to take office
on January 15, 2002, the parties argued that a one month
extension for the DOE, with a concomitant extension for any
subsequent appeals, would both facilitate decision-making by the
incoming administration and permit the appellate process to be
completed before the state budget is approved. The ELC and
Governor's Special Counsel informed the Court that
representatives from the Abbott districts, community providers,
Head Start, and the Early Care and Education Coalition are
participating in this effort with the plaintiffs and the new
administration. In light of our consistent call for cooperation
between the parties, we approved plaintiff's request on December
21, 2001.See footnote 22 We anticipate that even if some of the Abbott
districts are unable to work out their differences with the DOE
within the extended time frame, there will be continuing efforts
to do so throughout the administrative appeal process.
As Chief Judge Masin points out in his Initial Decision, the question whether the DOE has met the Court's mandates in Abbott V and Abbott VI presents a moving target for review. OAL Initial Decision at 36-37. During the period after this case was filed in 1999, up to April 2000 when the OAL Initial Decision issued, Abbott VI was decided and the Department promulgated regulations, published Early Childhood Program Expectations: Standards of Quality (Expectations),See footnote 33 and provided training for district personnel. OAL Initial Decision at 36. Even as to the global issues, the factual context was changing. As for the parents and students (from Paterson, Jersey City, Newark and West New York) represented by the ELC, the Chief Judge observed that “the necessary level of evidence surrounding the[ir] actual individual and particularized needs [was] not before [him].” Id. at 37. Even so, the parties continued to present, by certifications to this Court, unfolding “factual” information relating to both systemic and district specific issues. We are unable to resolve district specific issues on this record and anticipate that they will be either cooperatively resolved for next year as the Department reviews the district plans submitted on November 15, 2001 or through the administrative appeal process. We will therefore address only those systemic or global issues considered by Chief Judge Masin and the Commissioner.
A. Substantive Educational Standards
In Abbott VI, we required the Department to provide “[s]ubstantive educational guidance for all Abbott district preschool programs . . . by April 17, 2000" in preparation for the 2000-01 school year. 163 N.J. at 107. That requirement stemmed from a set of related concerns: the need for criteria against which district programs can be evaluated and for a mechanism “to prevent the development of a two-tiered system in which one group of children is offered daycare and another group is offered high-quality preschool.” Ibid. Substantive educational standards provide goals for teachers and students alike, as well as direction for achieving those goals in the classroom.
In response to our mandate in Abbott VI, the DOE adopted
the Expectations in April 2000. DOE, Expectations, at http://www.state.nj.us/njded/ece/expectations (last visited on Dec. 31, 2001). Similar to the Core Curriculum Content Standards (CCCS)See footnote 44 for grades K-12, the Expectations outline the goals of preschool education without, however, specifying the details of a curriculum aimed at achieving the desired results. Subsequently, on December 17, 2001, the DOE proposed an amendment to N.J.A.C. 6A:24-3.3(a)(4) requiring districts to integrate the goals of the Expectations into their preschool programs. 33 N.J.R. 4186, 4187.
Because the DOE's position on the Expectations is that
they “are not meant to be used in isolation, but as one of
the many resources that are essential to building a developmentally appropriate early childhood program,” Expectations, supra, at Preface, ¶ 3, the Department promised
the creation of a curriculum strategy, the Early Childhood Education Curriculum Framework (Framework), to supplement the
Expectations with substantive guidance and to aid in the realization of the Expectations. DOE, Framework, at http://www.state.nj.us/njded/ece/framework/index.html (last visited on Dec. 31, 2001). The DOE has not issued a final version of the Framework, and, therefore, plaintiffs ask us to declare that the DOE has failed to fulfill the mandate of Abbott VI. Plaintiffs submit that the Expectations alone do not provide the guidance necessary for districts and community providers to implement uniform, high-quality preschool education in the Abbott districts.
The Commissioner has advised that the development of the Framework has significantly advanced. DOE, Early Childhood Education: Advancing Implementation, Ch. 3(a), at http://www.state.nj.us/njded/ece/implementation (Advancing Implementation) (last visited on Dec. 31, 2001). In September 2001, the Department released, in draft form, an extensive substantive chapter on strategies to meet preschool expectations and to guide assessments of the children's progress. The chapter covers social and emotional development, creative arts,
mathematics, science, and other areas. DOE, Framework, at http://www.state.nj.us/njded/ece/framework/doc. Continued progress with the Framework is essential for the scheduled review by the early childhood education community to be effective and for educators to have adequate time to plan programs for the 2002-03 school year. For the current school year, the Abbott districts are integrating the goals of the Expectations with nationally recognized preschool curriculum models. Twenty-four Abbott districts employ one or more of these recognized models: five use Curiosity Corner, eleven use High/Scope or their own program based on High/Scope, four use Creative Curriculum, one uses Scholastic's Early Childhood Workshop, two use a hybrid of at least two of the aforementioned programs, one uses a hybrid of Abecedarian and the Kellog Five Star Project, and six have developed their own curricula.
In his June 1 decision, the Commissioner “direct[ed] . . . the Department [to] revise its practices and procedures as may be necessary to include . . . review” of “district curriculum plans” and to remain faithful to the Framework development schedule established in the Department's Advancing Implementation document. In re Abbott Global Issues, No. 171-01, slip op. at 73 (Commissioner of Education June 1, 2001) (Commissioner Decision); see also N.J.A.C. 6A:24-3.3(a)(4). DOE review of curriculum plans will assist the districts in compliance with Framework strategies. See proposed amendment to N.J.A.C. 6A:24-34 at 33 N.J.R. 4186, 4187 (Dec. 17, 2001). To ensure availability of detailed curricula for use in the 2002-03 school year, and to meet the DOE's time frame for implementation workshops, the DOE must, as scheduled, complete a final draft of the Framework by April 30, 2002. See Advancing Implementation.
B. Enrollment and Recruitment
Enrollment in Abbott preschool programs is not compulsory.
If the promise of early childhood education is to be met, parents
in the Abbott districts must not only be aware of the opportunity
offered, but must be informed about the advantages of
participation for their children. In some communities,
recruitment will be critical to the success of the Abbott
preschool venture.
The issue in Abbott VI concerned the “need for community
outreach to inform parents about the availability of preschool
for three- and four-year old children in the Abbott districts.”
Abbott VI, supra, 163 N.J. at 119. The Court anticipated at that
time that existing enrollments could be examined in order to
determine, based on the projected preschool population, “whether
parents in the community are aware of the district's preschool
programs.” Ibid. Low enrollments would “trigger a
determination” of parental awareness and, then, “concerted
outreach efforts to improve [those] enrollments.” Ibid.
At present, if the number of children “in the early
childhood programs do[es] not exceed 50 percent of the projected
preschool population in the district, the [local] board [is
required to] develop a corrective action plan to increase
enrollments which shall be approved by the Commissioner and then
implemented by the district.” N.J.A.C. 6A:24-3.3(a)(8). The
issue addressed below by the Chief Judge was, therefore, “whether
the Department, faced with evidence of such 'low' enrollments,
ha[d] taken appropriate steps to require that the districts
determine the awareness of parents about . . . preschool
programs and, as appropriate, adopt plans to promote awareness
and . . . encourage enrollment.” OAL Initial Decision at 42. A
problem arose, however, because of a disagreement between the
parties “regarding the appropriate manner of determining the
projected number of three- and four-year-olds in a district.”
Ibid. When outreach efforts are initiated based on the
percentage of total eligible students, accuracy in projecting
that number is essential.
Before the Chief Judge, the Department's expert asserted,
without documentation, that “each district other than Elizabeth
is serving at least 50% of its 'projection.'” Ibid. Plaintiffs'
expert used his own methodology and calculated the number of
eligible three- and four-year-old students in each district at
twice the district's first-grade enrollment. Ibid. Using that
figure and comparing it to the actual number of students
enrolled, plaintiffs' expert concluded that twelve districts had
enrollment rates below fifty percent, thereby triggering the
community outreach corrective action requirement for those
districts. Ibid. On the record before him, the Chief Judge was
unable to determine which expert's calculation, if any, yielded
the correct measurement of enrollment. Id. at 44. Thus, he was
unable to adjudicate the issue whether, in respect of any Abbott
district, the community outreach requirement had been triggered.
In lieu of that determination, the Chief Judge urged the DOE to
adopt a uniform standard through the administrative rulemaking
process to measure districts' preschool enrollment and to
determine the need for community outreach. Id. at 45. The
Commissioner “fully concurred” with the Chief Judge and directed
the development of appropriate regulations. Commissioner
Decision at 74-75.
On November 5, 2001, proposed amendments to N.J.A.C. 6A:24-
3.3 were published in the New Jersey Register.
33 N.J.R. 3716,
3717-18. By those amendments, the Department has set forth a
uniform method for calculating the universe of eligible three-
and four-year-old children that averages the total number of
public and non-public school kindergarten and first grade pupils
in a district. N.J.A.C. 6A:24-3.3(a)(8). “[A]ppropriate
adjustments” may be made to that figure “based upon the
documented history of the actual enrollments in the three- and
four-year-old programs over the last three years,” id. at
(a)(9)(I), and to reflect “any factors in the community that
might affect the growth rate in the three- and four-year-old
populations, such as a large employer moving in or out of the
district, or a new housing development . . . .” Id. at
(a)(9)(ii). This method yields ”the minimum projected number of
three-year-old and four-year-old children that must be served in
the next school year . . . .” Id. at (a)(9)(iii). In addition,
the DOE has proposed an amendment to N.J.A.C. 6A:24-3.3(a)(8)
that increases the outreach trigger from the current 50% to 90%
by the 2003-04 school year. Id. at (b)(1) (moving the 2001-02
trigger to 70%, the 2002-03 trigger to 80%, and the 2003-04
trigger to 90%). We note as to those proposals that the
districts' success in conducting outreach programs can be
reviewed only if a uniform method for calculating projected
enrollments is used. The variability that results when each
district is permitted to develop its own methodology makes it
considerably more difficult for the DOE to evaluate effective
strategies to improve preschool attendance.
In the end, it is the outreach effort that is critical to
the success of the Abbott programs. We recognize that even if
every parent is informed about the availability of preschool, not
all parents will choose to enroll their children. As the State's
experts reported in Evaluation of Early Childhood Programming in
the 30 Abbott School Districts: Phase 1 Report (Feb. 2001), some
parents may not wish to “put their child[ren] in the 'world' too
soon,” while others may prefer a more family-oriented child care
environment or the flexibility of alternative child care options.
Id. at 10. The decision not to enroll a child in the district's
preschool program also may be affected by cultural attitudes,
including “distrust of the educational system,” among other
things. OAL Initial Decision at 43.
The goal is to inform parents of preschool age children
about the opportunity to enroll their children in the Abbott
programs. In other words, children should not be denied the
benefits of a quality preschool program simply because their
parents do not know it exists. This appears to be an area where
partnering with community organizations might be of great
assistance in achieving outreach goals. By way of example, we
are informed that the Department of Human Services entered into a
$1.3 million contract with the Hispanic Directors Association of
New Jersey (Association) to provide recruitment services in
Spanish-speaking communities. According to the State, these
efforts have borne fruit. As of May 1, 2001, 1,789 of the 3,182
families contacted by the Association advised that they would
enroll their children in an Abbott preschool program. Such
results are encouraging.
Nonetheless, thousands of children have not been enrolled in
preschool in the Abbott districts. The DOE must work with the
districts to develop corrective action plans when the districts
do not meet enrollment goals and must review, with the districts,
the effectiveness of these plans during the implementation phase.
C. Head Start/Community Providers
Plaintiffs and Amici allege that the Commissioner of
Education has willfully violated the Court's Abbott mandates by
unlawfully excluding Head Start programs from district plans and
by insufficiently funding community providers generally.
In Abbott V and Abbott VI, we considered the use of
community daycare centers as part of the Abbott preschool
program. At that time, both the DOE and the plaintiffs supported
the use of community daycare centers because, as a practical
matter, “a readily-available source of staff and facilities could
be found in the DHS-licensed programs then operating in the
Abbott districts.” Abbott VI, supra, 163 N.J. at 114. Indeed,
the DOE had adopted N.J.A.C. 6:19A-3.3(b) (revised and now found
at N.J.A.C. 6A:24-3.3(b)), which required districts to
collaborate with community providers “whenever practical.”
Abbott VI, supra, 163 N.J. at 114-15. In Abbott VI, the issue
was not whether community daycare centers should be included in
the district program, but whether they could be included, because
“they are not designed to provide a preschool educational
experience that prepares disadvantaged children to achieve
academically in school.” Id. at 114. We approved the use of
community providers with the caveat that daycare centers could
not be incorporated into Abbott district programs unless they met
the stringent requirements imposed on those programs. In other
words, a two-tier system that denied any child a quality
preschool experience would not be permitted. It was in that
context that we stated, “When an existing daycare center is
unable or unwilling to comply with those requirements,
cooperation with that center would be presumptively not
'practical' under N.J.A.C. 6:19A:3.3(b).” Abbott VI, supra, 163
N.J. at 115.
Today, plaintiffs complain that certain of the Head Start
programs have been excluded from the district plans by the DOE.
We agree with the Chief Judge that N.J.A.C. 6A:24-3.3(b)See footnote 55
requires the districts to “wherever possible make use of existing
community-based programs to deliver preschool services rather
than duplicate such programs.” OAL Initial Decision at 46. We
also read the DOE regulation to establish a presumption that
duplication of services is not permitted unless substantial
reasons are set forth in the Department's decision document.
That said, we are troubled by reports that Head Start
programs are facing decreasing enrollment, escalating loss of
staff, and financial difficulties. We are told that certified
staff has fled to district-run programs, lured by the higher
compensation packages those programs offer. It is specifically
claimed that seventeen Head Start programs in Abbott districts
have lost more than 125 certified teachers in the last three
years, and that all of the education staff and social workers
have left the Head Start program serving Asbury Park, Long
Branch, Neptune, and Keansburg.
We recognize the invaluable service that Head Start provides
in the Abbott districts. In Abbott VI, we observed that Head
Start “present[s] unique issues.” 163 N.J. at 116. Designed to
fit the needs of the community, Head Start offers low-income
children comprehensive medical, dental, mental health, nutrition,
family involvement, and transportation programs, and has been
instrumental in increasing the school readiness of young children
from low-income families. United States Department of Health and
Human Services, Administration for Children and Families, Head
Start Children's Entry into Public School: A Report on the
National Head Start/Public School: Early Childhood Transition
Demonstration Study (2000) (reporting that Head Start children
enter school “ready to learn” and able to achieve at national
academic norms). It has been represented to us that because of
Head Start's unique features, many parents prefer Head Start
programs over district-run programs.
Nonetheless, “[s]tate preschool standards are . . . more
demanding than Head Start program standards,” Abbott VI, supra,
163 N.J. at 116, and, therefore, the DOE must supplement existing
Head Start funding with state funding sufficient to allow Head
Start to meet state standards and to retain certified teachers.
The Chief Judge expressed his frustration at the lack of a record
in respect of an alleged breakdown in discussions between state
officials and Head Start providers. OAL Initial Decision at 48.
We have been informed that the disputes are not about the use of
Head Start as part of the Abbott district preschool plans, but,
rather, the cost of bringing Head Start up to state standards.
To avoid “duplicat[ing] programs or services otherwise
available in the community,” as required by N.J.A.C. 6A:24-
3.3(b), districts should utilize Head Start providers unless they
are not “able and willing to comply” with Abbott preschool
standards, or unless the cost of doing so is demonstrably more
expensive than other high-quality alternatives. The districts
must develop budget proposals based on a careful analysis of a
provider's pre-existing obligations and funding sources. The DOE
need not offer additional funding for services designed to meet
federal regulations unless there is a need to improve those
services to meet state standards. In sum, reasonable
supplemental funds must be provided so that Head Start (and other
appropriate community providers) can meet the more demanding
State preschool requirements.
Ensuring that qualified, certified teachers are available
for all Abbott programs is an essential component of adequate
state funding. Districts must address salary parity between
district-run and community provider-run programs in their needs
assessment evaluations. If community providers, such as Head
Start, can demonstrate an inability to retain qualified staff due
to salary parity problems, the DOE must consider additional
funding for teacher salaries.
Finally, we note that N.J.A.C. 6:11-5.2(f) “grandfathers”
certified elementary school teachers with two years preschool
experience by waiving the requirement of Abbott VI that they
obtain an instructional certificate with a P-3 endorsement in
order to be hired as teachers in Abbott preschool programs.See footnote 66 We
find the grandfather provision to be a reasonable response to the
establishment of new certification requirements that would
otherwise negatively affect experienced, certified teachers. We
are confident the exemption will not compromise the education of
any preschool children. The DOE, which historically grandfathers
all certificate holders affected by new requirements, strictly
limited N.J.A.C. 6:11-5.2(f) to those teachers with the training
and experience it judged fully adequate to the task. The parties
agree that there is a teacher shortage that affects both
community daycare providers and district-run preschools.
Additional funding, when appropriate for community providers,
will help them to retain qualified teachers, but it will not
increase the pool of qualified teachers.See footnote 77
D. The Role of Assessment/Funding
The question of funding a “thorough and efficient” education
in the Abbott districts has plagued this litigation from the
start. See Abbott v. Burke,
100 N.J. 269 (1985). In Abbott VI,
we repeated our concern that “adequate funding remains critical
to the achievement of a thorough and efficient education.” 163
N.J. at 118 (quoting Abbott V, supra, 153 N.J. at 517-18). And,
yet again, plaintiffs complain that the DOE has neither provided
sufficient budgetary guidance to the districts, nor allocated
funding based on actual need. More specifically, plaintiffs
claim that the DOE has imposed upon the districts pre-
established, arbitrary “per-student” funding amounts that do not
take into account real “per-student” costs. The Chief Judge
framed the global question as “whether there are systemic factors
that exist that undermine the ability of the districts to obtain
the funding they need or that limit the ability of the Department
to assess that need.” OAL Initial Decision at 50.
Although he acknowledged that the funding disputes of
individual districts were not a proper subject for review in the
global issues matter (and should instead be resolved in separate
proceedings), the Chief Judge nonetheless examined the funding
experiences of the Paterson and Jersey City School Districts to
aid in his inquiry on the systemic issue. He found that neither
the Paterson or Jersey City application, nor the DOE's responses
to those applications, provided adequate bases for the funding
amounts initially requested or ultimately granted. Paterson, for
example, at one point changed its per-student funding proposal,
but failed to submit any information “to allow anyone to
understand whether [the amount requested was] based upon an
assessment that the . . . figure [was] adequate to provide a
well-planned, high-quality education.” Id. at 52.
The DOE was equally unhelpful in its responses. Its reply
to Jersey City was described by the Chief Judge as containing
“blanket statement[s]” providing “no explanation [in respect of]
the sufficiency” of the funding amounts approved. Id. at 53. Of
particular concern to the Chief Judge was the prevalence of DOE
funding approvals of $4,500 per student with no explanation
whether that amount was sufficient. In short, he found “no
evidence that the districts made a program-by-program, center-by-
center assessment” of the funding required to deliver an
“appropriate education.” Id. at 54. Nor was there any evidence
that “if such assessments were performed[,] . . . the DOE
reviewed these assessments or even saw them.” Ibid. As a
result, it was not possible to determine whether the funding
amounts requested by the districts and/or granted by the DOE
were “adequate” for the provision of “fully compliant” Abbott
preschool programs. Ibid. At the same time, the funding
process and the DOE's responses suggested an “appearance of . . .
arbitrariness.” Id. at 53.
The Chief Judge concluded that the districts must “conduct
reasonable evaluations, reviews and assessments of themselves,
their preschool children and their providers' circumstances
and . . . use these as aids in formulating plans for the
implementation of Abbott preschool.” Id. at 55. He required
those findings to be “made available to the DOE so that it too
can, as it must, conduct reasonable reviews and assessments of
the districts' actions.” Ibid. The Chief Judge also concluded
that clear guidelines must be issued by the DOE so that districts
will be aware of the information needed by the Department to
conduct meaningful evaluations of the districts' plans. Ibid.
The Commissioner “fully concur[red] that assessment of needs and
evaluation of programs is central to any meaningful
implementation of Abbott mandates . . . .” Commissioner Decision
at 81. Thus, he directed that
to the extent that the Department may not be
ensuring that assessments of student need are
occurring or providing sufficient guidance as
to how they are to be conducted . . . , the
Department shall . . . recommend to the
Commissioner such revisions to its practices
and procedures as may be necessary . . . .
Subsequently, the DOE revised various budget forms and
materials available at the Department's website, including a
“Provider Budget Worksheet,” an “Abbott Provider Budget Q & A,”
“Helpful Abbott Provider Budget Formulas,” and “Abbott Provider
Helpful Budget Worksheets.” DOE, Early Childhood Program Aid:
Abbott School District: One-Year Operational Plan - School Year
2002-2003, at http://www.state.nj.us/njded/ece/ecpa/ (One-Year
Operational Plan for 2002-03) (last visited on Dec. 31, 2001).
Also, on December 17, 2001, the Department proposed amendments to
N.J.A.C. 6A:24-3.4 that address, in part, evaluation and
assessment of student needs in relation to funding
determinations.
33 N.J.R. 4186, 4188. Particularly relevant is
the provision stating that “[t]he [local] board[s] shall conduct
evaluations and assessments of the needs of their students,
programs and community based providers so as to determine in
detail their specific requirements and to formulate plans and
applications geared to meet these needs.” N.J.A.C. 6A:24-
3.4(a)(7).
Active and ongoing regulatory guidance from the DOE is
essential throughout this process. District budgetary requests
must be developed and articulated with specificity, and, equally
important, the DOE must respond with appropriate explanation.
Formulaic decision-making neither assists the districts nor
provides a basis for further review on appeal. Most important,
we were informed at oral argument that the DOE has moved to a
zero-based budgeting system. See Advancing Implementation.
Thus, the DOE's instructions regarding Provider Budgets state,
Districts should work with providers to
ensure that costs are reasonable and
appropriate and that sufficient justification
for provider costs is incorporated into the
district plan. Providers are asked to
construct a zero-based budget reflecting the
actual cost of delivering an early childhood
education program meeting Abbott standards to
Abbott children. There is no predetermined
per pupil amount, as allocations shall be
based on the unique needs of each provider
and/or site.
[One-Year Operational Plan for 2002-03, Part
V: Provider Budget Instructions and Forms:
District Instructions.]
Whatever nomenclature is used to describe the budget calculation,
it must yield funding decisions based not on arbitrary,
predetermined per-student amounts, but, rather, on a record
containing funding allocations developed after a thorough
assessment of actual needs.
E. Facilities
In Abbott V, we held that the State's “constitutional
educational obligation includes the provision of adequate school
facilities.” 153 N.J. at 519-20. We concluded that a thorough
and efficient education in the Abbott districts requires the
State to fund one-hundred percent of the costs for renovation of
existing structures and construction of new facilities that will
adequately accommodate Abbott district students. Id. at 524. We
also recognized that temporary facilities would likely be needed
in the interim and required the Commissioner to “make use of
trailers, rental space, or cooperative enterprises with the
private sector” in order to timely meet the State's preschool
obligations. Id. at 524. The Chief Judge likewise understood
that the most “immediate” issue facing the Abbott districts in
respect of school facilities is the provision of temporary
facilities to accommodate the maximum enrollment of preschoolers
during the period before permanent facilities are completed. OAL
Initial Decision at 56. He recognized that disputes regarding
temporary facilities are “inextricably tied to the individual
needs of specific districts,” ibid., and the Commissioner
confirmed that all such disputes would be decided on a case-by-
case basis. Commissioner Decision at 82.
Plaintiffs generally claim, however, that “the DOE has
failed to provide safe and adequate preschool facilities.” OAL
Initial Decision at 31. The Elizabeth Board of Education
(Elizabeth) argued before the Chief Judge that the State's
failure to provide funding, or at least to offer assurances that
specific funding would later be approved, prevented the district
from engaging in meaningful facilities planning for the 2000-01
school year and beyond. Ibid. Further, Elizabeth complained
that it has been unable to engage in serious and effective
recruiting efforts because it could not ensure that an adequate
number of facilities would be available to accommodate all of the
students who registered. Ibid. In representations to the Chief
Judge and to this Court, Elizabeth stated that, due to a lack of
facilities, it had a waiting list of between 250 and 300 three-
year-olds; that the DOE had knowledge of the waiting list; and,
that nonetheless Elizabeth was not designated to receive any
temporary classroom units (modular units or TCUs) for the 2001-02
school year.
The Passaic Board of Education (Passaic), also, claims that
its recruitment efforts have been hampered by the lack of either
temporary or permanent facilities. Passaic alleges that over the
past three years the DOE has either ignored or inadequately
addressed the district's facilities needs. The district concedes
that the Economic Development Authority ordered approximately
fifty TCUs for use in the 2001-02 school year,See footnote 88 but complains
that the order came too late for the district to find and
properly evaluate the sites upon which to place the trailers. We
were informed at oral argument that certain sites initially
selected later proved unusable because they were contaminated.
These difficulties are likely to continue, according to Passaic,
because of the lengthy lag-time between funding approval and the
actual leasing, renovation or construction of preschool
facilities. In essence, under the existing process, the district
believes it unlikely that needed preschool facilities will be in
place by the beginning of the 2002-03 school year.
The Perth Amboy Board of Education (Perth Amboy) alleges
similar difficulties. Perth Amboy states that it first sought
funding for a new early childhood learning center in May 1999
when it submitted its Long-Range Facilities Plan, but that, as of
oral argument, funding had not been provided. The district
leased a vacant parochial school building that provides twenty-
one temporary classrooms, but even with this leased space, sixty-
seven students remained on a waiting list. Perth Amboy
anticipated placing those children in five new classrooms located
in the Borough of Metuchen.
The DOE does not deny that the number of modular units
available through the EDA contract was insufficient, or that
several of the Abbott districts were unable to accommodate
preschool children who expected to enroll in full-day programs
starting September 2001. Nonetheless, the State asserted at oral
argument that all Abbott districts, with the exception of
Elizabeth, would be in a position to serve all of the children
who enrolled in full-day, full-year programs within a few months.
Once again, on the record before us, we are unable to determine
the full extent of the facilities problem. See Initial Decision
at 56 (noting that these issues should be reviewed on a case-by-
case basis).
It is foreseeable, however, that districts conducting
outreach initiatives will experience increased enrollments in the
year following those efforts, and that some of those districts
will not have sufficient classrooms for the children who enroll.
To accommodate every child whose parents seek placement in an
Abbott preschool program, Abbott districts anticipating increased
enrollments should have in place a contingency facilities plan
that has been reviewed and approved by the DOE. Those districts
should identify specific facilities that can be renovated quickly
if needed, or should seek DOE authorization for TCUs that can be
obtained on short notice and appropriately situated on previously
designated sites.
We observe, finally, that certain of the relief sought in this litigation has been provided by the Commissioner as a result of the administrative process. Yet, delays in decision-making, and even in respect of the relief so granted, have slowed the implementation of Abbott preschool programs. Adherence to the time frames established by the Court will result in timely determinations, as will cooperation and collaboration between the parties.
We are acutely aware of the constitutional imperative that undergirds the Abbott decisions, and of the vulnerability of our children in the face of Legislative and Executive Branch inaction. But we do 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-to-day control over the Abbott reform effort. That said, we must never forget that a “thorough and efficient system of free public schools” is the promise of participation in the American dream. For a child growing up in the urban poverty of an Abbott district, that promise is the hope of the future.
As described in this opinion, plaintiffs' motion is granted in part and denied in part.
JUSTICES COLEMAN and LONG join in the opinion of CHIEF JUSTICE PORITZ in its entirety. JUSTICE LaVECCHIA has filed a separate opinion, concurring in part and dissenting in part. JUSTICE STEIN has filed a separate dissenting opinion. JUSTICES VERNIERO and ZAZZALI did not participate.
SUPREME COURT OF NEW JERSEY
M-1 131 September Term 2000
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 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-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-Respondents.
____________________________
LaVECCHIA, J., concurring, in part and dissenting, in part.
This matter comes before us on a motion in aid of litigants' rights filed by the Education Law Center. Th