ROBINSON v. CAHILL
69 N.J. 133 (1975)
351 A.2d 713
KENNETH ROBINSON, AN INFANT BY HIS PARENT AND GUARDIAN AD LITEM, ERNESTINE ROBINSON, ET AL., PLAINTIFFS-RESPONDENTS,
v.
WILLIAM T. CAHILL, GOVERNOR OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-APPELLANTS.*
The Supreme Court of New Jersey.
Argued March 18, 1975.
Decided May 23, 1975.
Honorable Brendan T. Byrne, pro se, and Mr. Lewis B. Kaden, Special Counsel to the Governor, argued the cause for appellant Governor of the State of New Jersey. (Mr. Kaden, of counsel and on the brief; Mr. John J. Degnan, Ms. Judith Nallin, and Mr. Arthur Winkler, Assistant Counsel to the Governor, on the brief).
Mr. Stephen Skillman, Assistant Attorney General, argued the cause for appellants Treasurer of the State of New Jersey, Commissioner of Education of the State of New Jersey, New Jersey State Board of Education, and State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Skillman, of counsel and on the brief, Ms. Jane Sommer, Deputy Attorney General, on the brief).
Mr. David Goldberg argued the cause for appellants President of the Senate of the State of New Jersey and the Senate of the State of New Jersey. (Messrs. Warren, Goldberg, and Berman, attorneys).
Mr. Jack Borrus argued the cause for appellants Speaker of the General Assembly of the State of New Jersey and the General Assembly of the State of New Jersey (Messrs. Borrus, Goldin and Foley, attorneys; Mr. Borrus, of counsel and on the statement in lieu of brief; Mr. David M. Foley, on the statement in lieu of brief).
Mr. Harold J. Ruvoldt, Jr. argued the cause for respondents (Messrs. Ruvoldt and Ruvoldt, attorneys and Special Counsel to Mr. Dennis L. McGill, Corporation Counsel of the City of Jersey City, Mr. Frank H. Blatz, Jr., Corporation Counsel of the City of Plainfield, Mr. Joseph LaCava, Corporation Counsel of the City of Paterson, and Mr. Julius Fielo, Corporation Counsel of the City of East Orange).
Mr. Paul L. Tractenberg and Mr. David G. Lubell, of the New York bar, argued the cause for amici curiae Education Committee, Newark Chapter, National Association for the Advancement of Colored People and American Civil Liberties Union of New Jersey (Messrs. William J. Bender and Frank Askin, attorneys).
Mr. William J. Zaino argued the cause for amicus curiae New Jersey School Boards Association.
Mr. Cassel R. Ruhlman, Jr. argued the cause for amicus curiae New Jersey Education Association (Messrs. Ruhlman and Butrym, attorneys).
Mr. Andrew T. Berry argued the cause on behalf of amici curiae Township of Livingston and the Boards of Education of the School Districts of Montclair, Berkeley Heights, Chatham Township, New Providence, Rumson, Sandyston-Walpack, Summit and Millburn, Avon-by-the-Sea, Belmar, Englewood, Mendham Township, and the City of Englewood and the Mayor of the Borough of Carlstadt (Messrs. McCarter and English, attorneys for amici curiae Township of Livingston and the Boards of Education of the School Districts of Montclair, Berkeley Heights, Chatham Township, New Providence, Rumson, Sandyston-Walpack, Summit and Millburn; Mr. Berry of counsel and on the brief; Mr. Peter F. Shebell, Jr. filed a brief on behalf of amici curiae Boards of Education of Avon-by-the-Sea and Belmar; Mr. Walter T. Wittman, attorney for amicus curiae Board of Education of City of Englewood; Mr. Arthur W.Lesemann, attorney for amicus curiae City of Englewood; Messrs. Mills, Doyle, Hock and Murphy filed a brief on behalf of amicus curiae Board of Education of Township of Mendham, Mr. Eugene F. Doyle, of counsel and on the brief; Mr. Paul S. Barbire filed a brief on behalf of amicus curiae Mayor of the Borough of Carlstadt).
Mr. Bruce LaCarrubba appeared on behalf of amicus curiae New Jersey State Office of Legal Services.
Mr. Martin L. Greenberg, Member of the Senate of the State of New Jersey filed a brief pro se and on behalf of Ms. Anne Martindell and Messrs. Alexander Menza, Joseph P. Merlino and John Russo, Members of the Senate of the State of New Jersey (Mr. Stephen N. Dratch, on the brief).
Mr. Anthony Scardino, Jr., Member of the Senate of the State of New Jersey filed a statement in lieu of brief pro se.
Mr. Thomas H. Kean, Member of the Assembly of the State of New Jersey, filed a statement in lieu of brief pro se and on behalf of Messrs. William J. Bate and James W. Bornheimer, Ms. Jane Burgio, Ms. Mary Keating Croce, Ms. Barbara A. Curran, Messrs. Walter E. Foran, Kenneth A. Gewertz, Francis J. Gorman, Robert P. Hollenbeck, Alan J. Karcher, Robert E. Littell, Carl A. Orechio, George J. Otlowski, Victor A. Rizzolo, Robert M. Ruane, C. Gus Rys, Clifford W. Snedeker, John A. Spizziri, A. Donald Stewart, Ms. Rosemarie Totaro and Messrs. Richard F. Visotcky and Karl Weidel, Members of the Assembly of the State of New Jersey.
Mr. George J. Otlowski, Member of the Assembly of the State of New Jersey, filed a statement in lieu of brief pro se.
Mr. Alan J. Karcher, Member of the Assembly of the State of New Jersey, filed a statement in lieu of brief pro se.
Mr. Herbert C. Klein, member of the Assembly of the State of New Jersey, filed a brief pro se.
Mr. Robert B. Meyner submitted a brief on behalf of amicus curiae Morris School District (Messrs. Meyner, Landis and Verdon, attorneys; Mr. Jeffrey L. Reiner, on the brief).
Mr. Milton A. Buck, Corporation Counsel for the City of Newark, submitted a brief on behalf of amicus curiae City of Newark (Ms. Rosalind L. Bressler, Assistant Corporation Counsel, on the brief).
Mr. James D. Checki, Jr. submitted a brief on behalf of amicus curiae Board of Education of Township of Lyndhurst (Messrs. Checki and Politan, attorneys).
Mr. Robert T. Pickett submitted a brief on behalf of amicus curiae The Education Reform Project of The Greater Newark Urban Coalition (Messrs. Pickett and Jennings, attorneys; Messrs. David C. Long and Daniel M. Schemker on the brief).
Mr. Morton Feldman submitted a brief on behalf of amici curiae Pleasantville Taxpayers Association, Weymouth Taxpayers Association, Association of Concerned Citizens of Vineland and Gilbert Cramer.
The opinion of the Court was delivered by HUGHES, C.J.
The Court has now come face to face with a constitutional exigency involving, on a level of plain, stark and unmistakable reality, the constitutional obligation of the Court to act. Having previously identified a profound violation of constitutional right, based upon default
in a legislative obligation imposed by the organic law in the plainest of terms,1 we have more than once stayed our hand, with appropriate respect for the province of other Branches of government. In final alternative, we must now proceed to enforce the constitutional right involved. The compulsion upon the Court to act in the present state of affairs is evident:
The people's constitutional reposition of power always carries with it a mandate for the full and responsible use of that power. When the organic law reposes legislative power in that branch, for instance, it is expected that such power will be used, lest it wither and leave the vacuum of a constitutional exigency, requiring another branch (however reluctantly) to exercise, or project the exercise of, that unused power for the necessary vindication of the constitutional rights of the people. Robinson v. Cahill,62 N.J. 473 (1973), cert. den. sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219; Jackman v. Bodine,43 N.J. 453 (1964); Asbury Park Press, Inc. v. Woolley,33 N.J. 1 (1960). [American Trial Lawyers v. N.J. Supreme Ct.,66 N.J. 258, 263] In Robinson v. Cahill,62 N.J. 473 (1973), we held violative of the Education Clause of the Constitution the existing system of education provided public school children in this State. We construed the Constitution basically to command that the State afford "an equal educational opportunity for children" (Id. at 513), however the burden of doing so would be distributed and borne,2 and we agreed
with the determination of Judge Botter (118 N.J.Super. 223, 119 N.J.Super. 40 (Law Div. 1972)) that "the constitutional demand had not been met * * *" on the basis of gross "discrepancies in dollar input [expenditure] per pupil." 62 N.J. at 515. We so ruled because dollar input was "plainly relevant and because we [had] been shown no other viable criterion for measuring compliance with the constitutional mandate." Id. at 515-16.3 Thus we considered as the principal cause of the constitutional deficiency the substantial reliance (under our present system of financing education) upon local taxation, entailing as it does "discordant correlations between the educational needs of the school districts and their respective tax bases." Id. at 520.
Nevertheless, although we expressed doubt that the Constitution could be satisfied "by reliance upon local taxation"
(Id. at 520), we did not foreclose that possibility. We indicated that the State could meet its obligation by financing education either on a statewide basis, with funds provided by the State, or, in whole or in part, by delegating the fiscal obligation to local taxation. Id. at 509-13. Should it choose the latter alternative, however, it would be incumbent upon the State, either legislatively or administratively "to define * * * the educational obligation and * * * compel the local school districts to raise the money necessary to provide that [equal educational] opportunity." Id. at 519 (emphasis in the original). If local government fails in that endeavor "the State must itself meet its continuing obligation." Id. at 513. The State aid plan under the current statute, N.J.S.A. 18A:58-4 (L. 1970, c. 234, hereafter the 1970 Act), was found inadequate because "not demonstrably designed to guarantee that local effort plus the State aid will yield to all the pupils in the State that level of educational opportunity which the * * * [Constitution] mandates." Id. at 519.
* This opinion, originally published in 67 N.J. 333, is republished to supply a line inadvertently omitted in the original printing. 1. "The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the [school] children in the State * * *." [N.J. Const. (1947), Art. VIII, § IV, ¶ 1; see N.J. Const. (1844), Art. IV, § VII, ¶ 6, as amended, effective Sept. 28, 1875]
2. "* * * [I]t cannot be said the 1875 amendments were intended to insure statewide equality among taxpayers. But we do not doubt that an equal educational opportunity for children was precisely in mind. The mandate that there be maintained and supported `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' can have no other import. Whether the State acts directly or imposes the role upon local government, the end product must be what the Constitution commands. A system of instruction in any district of the State which is not thorough and efficient falls short of the constitutional command. Whatever the reason for the violation, the obligation is the State's to rectify it. If local government fails, the State government must compel it to act, and if the local government cannot carry the burden, the State must itself meet its continuing obligation." [Robinson v. Cahill, supra 62 N.J. at 513]
3. While we recognized "that there is a significant connection between the sums expended and the quality of the educational opportunity" (62 N.J. at 481), the record of this case and the material furnished us in preparation for argument demonstrate that a multitude of other factors play a vital role in the educational result — to name a few, individual and group disadvantages, use of compensatory techniques for the disadvantaged and handicapped, variation in availability of qualified teachers in different areas, effectiveness in teaching methods and evaluation thereof, professionalism at every level of the system, meaningful curricula, exercise of authority and discipline, and adequacy of overall goals fixed at the policy level. Hence while funding is an undeniable pragmatic consideration, it is not the overriding answer to the educational problem, whatever the constitutional solution ultimately required.
Moreover, while we dealt with the constitutional problem in terms of dollar input per pupil, we recognized the legitimacy of permitting any school district wishing to do so to spend more on its educational program through local effort (local "leeway") provided such did not become "a device for diluting the State's mandated responsibility." [62 N.J. at 520]
4. We do not at this juncture assume such a timely plan will not be forthcoming. Progress in that direction has already been made by the Department of Education and effort continues in the Legislature. If implementing legislation for financing and the attendant administrative process is completed before October 1, 1975, but not in time to permit review thereof by the Court by that date, the Court will then, in the light of the nature of the entire plan submitted, consider whether it may be permitted to go into effect for 1976-1977, with or without terms, or be deferred to subsequent years if ultimately sustained by the Court.
1. This is, of course, only one possible definition of equality of educational opportunity. See generally McDermott & Klein, "The Cost-Quality Debate in School Finance Litigation: Do Dollars Make a Difference," 38 Law & Contemp. Prob. 415, 416-23 (1974); Wise, "Legal Challenges to Public School Finance," 82 School Rev. 1, 15-19 (1973). The use of this definition by the Court throughout this litigation should not be understood as foreclosing the possibility that other definitions may be more appropriate to other circumstances to which the education clause applies.
2. The Court accepted the finding of the trial court that as a result of the disparities among districts in resources devoted to education, the State had failed to fulfill its obligation to provide a "thorough and efficient" system of education for all pupils. Robinson I, supra, 62 N.J. at 515-16. The relationship between expenditures on education and the quality of education provided has been a much mooted question among educators. See, e.g., McDermott & Klein, "The Cost-Quality Debate in School Finance Litigation: Do Dollars Make a Difference?" 38 Law & Contemp. Prob. 415 (1974); Mosteller & Moynihan, eds. On Equality of Education (1972); Guthrie, Kleindorfer, Levin & Stout, Schools & Inequality (1971); Coleman, Equality of Educational Opportunity (1966). There can hardly be any doubt, however, that adequate financing is a necessary condition for an effective educational system, even if not a sufficient one. Cf. McDermott & Klein, supra at 429-30.
3. This determination would necessarily involve an evaluation of the cost of achieving a "thorough and efficient" standard in each district and in the State as a whole.
4. The doctrine of primary jurisdiction may demand that issues concerning the substantive educational standards required by the education clause arising in the course of this case be decided initially by the Board. Glenn View Development Corp. v. Public Service Elec. & Gas Co.,57 N.J. 304 (1970); Woodside Homes, Inc. v. Morristown,26 N.J. 529 (1958).
"Primary jurisdiction * * *" applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. * * * [United States v. Western Pacific R.R. Co.,352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956)].
This doctrine is, of course, merely one of priority of jurisdiction and operates to give the Court the benefit of the expert judgment of the Board and Commissioner. It does not relieve the Court of its ultimate responsibility to interpret and enforce the education clause. Federal Maritime Bd. v. Isbrandtsen Co.,356 U.S. 481, 78 S.Ct. 851, 2 L.Ed.2d 926 (1958); 3 Davis, Administrative Law, § 1901 at 3-6 (1958).
5. The promulgation of statewide standards does not necessarily mean that all school systems must conform to a single rigid pattern. It does mean that the State may not permit diversity to be accompanied by a dilution in the equality of education provided.
6. The parties have briefed and argued at considerable length the merits of "input," "output" and "process" standards. See Tractenberg, "Reforming School Finance Through State Constitutions: Robinson v. Cahill Points the Way," 27 Rutgers L. Rev. 365, 421-22, nn. 276, 277 (1974). The distinctions among these types of standards may in application be more illusory than real. Ultimately a well-conceived educational system requires that educational goals be formulated, that decisions be made as to what inputs of human and material resources are required, that the resources be properly allocated among students according to their needs in light of the goals, and finally that the success of the system in achieving its educational goals be evaluated and, based upon that evaluation, the choice of educational goals, the decision as to resource needs, and the process of allocating resources to students be revised. Cf. Levin, "A Conceptual Framework for Accountability in Education," 82 School Rev. 363 (1974). N.J. Const. (1947), Art. VIII, § IV, ¶ 1 does not require either "input," "output," or "process" standards in the abstract. It does require that the State adopt educational goals which implement the constitutional requirement that the system be designed to equip each child for his role as a citizen and a competitor in the labor market and that the State adopt standards which focus upon the success of each school district in reaching those goals.
7. It should be noted that the State has already established a statewide educational assessment program. N.J.A.C. 6:39-1.1 et seq.; see Ascher, "Educational Assessment," N.J.E.A. Journal 22 (Nov. 1972). While the adequacy of existing standardized tests to evaluate educational accomplishment is open to serious doubt, see, e.g., McDermott & Klein, supra at 424-428; cf. Larry P. v. Riles,343 F.Supp. 1306 (N.D. Cal. 1972); Note, "Legal Implications of the Use of Standardized Tests in Employment & Education," 68 Colum. L. Rev., 691 (1968); but see, Berkelman v. San Francisco Unified School District,501 F.2d 1264 (9 Cir.1974), the establishment of a statewide assessment program is a necessary first step toward implementing standards of the type demanded by the education clause. 8. The Board has announced its intention to promulgate regulations implementing the education clause. Proposed Rules for Thorough and Efficient Education, 7 N.J. Reg. 132 (a) et seq. (April 10, 1975). Since these regulations have not yet been promulgated in their final form it would be inappropriate to comment upon them in any detail. Before this Court, the Board and Commission have declared that their intention is to issue regulations which establish "process" standards. They define the "process" approach as "an educational system focusing on the delivery of resources to students in the most effective way, `effective' being defined in terms of whatever works best for each individual learner." If this is indeed the thrust of the regulations to be issued, then they would not comply with the constitutional requirements.
9. This estimate assumes that the Bateman-Tanzman Act will continue to be fully funded.
10. The situation in this case is thus very different from the one presented in Gautreaux v. Romney,457 F.2d 124 (7 Cir.1972), where the proposal that funding of wholly unobjectionable programs be enjoined so as to stimulate correction of constitutional defects in other programs was rejected. 11. The majority fears that the grant of any affirmative relief for this school year would create chaos in the budgetary process in local school districts. It is undeniable that a grant of affirmative relief by the Court for this school year would complicate the process of approval of local school budgets this spring. That process is governed by the various provisions of N.J.S.A. 18A:22, which sets out a timetable for formulation and adoption of these budgets. The Legislature, however, has already pushed the timetable back for this year. L. 1974, c. 191. Even this revised schedule is not so tight as to preclude further compression, either by the Legislature, or, in the absence of legislative action, by the Court itself. Oral arguments could be scheduled in mid-February and a decision announced shortly thereafter.
A certain amount of confusion and a great deal of dissatisfaction would undoubtedly result. The first can be ameliorated by diligence on the part of State and local officials. The second, the inevitable discordant accompaniment to possible change, should play no part in our decision.
The real question is: Can this Court, consistently with its obligations to uphold and to enforce the Constitution, trade the constitutionally guaranteed rights of hundreds of thousands of children to an equal educational opportunity for the possibility of avoiding some difficulties in meeting local budget-making deadlines. I do not see how this question can be answered in any way but in the negative. [Robinson III, supra, 67 N.J. at 42-43 (Pashman, J. dissenting); footnotes omitted].
12. In general large cities do not suffer from inadequate tax bases but do suffer badly from municipal overburden. Hence use of a district power equalizing formula ordinarily tends to cause these cities to lose state aid rather than gain it. This has been one of the principle defects of the use of that approach. Berge. supra 83, 104-5; Grubb & Michelson, supra 564-66. That major New Jersey cities benefit from use of a power equalizing formula is a measure of the desperate condition of our cities, for it indicates that they suffer from low property values as well as municipal overburden. Jersey City (553), Paterson (560), Hoboken (562), Trenton (566), Newark (572) and Camden (575) all rank among the 30 lowest of the 578 operating school districts in equalized valuation per weighted pupil.
13. Usable measures of the relative degree of municipal overburden include (1) the ratio of local revenues per capita used for non-school expenses to the statewide average of local revenues per capita used for non-school expenditures, Grubb & Michelson, supra at 565 & n. 39; (2) the ratio of the percentage of local revenues used for school purposes to the statewide average percentage of local revenues used for school purposes, id.; and (3) ratio of the local non-school tax rate to the statewide average local non-school tax rate. See Bateman Report, supra at 97.
14. With suitable restrictions and adjustments any of the measures described in the previous footnote can be used to modify the value for the local property tax base used in the "incentive-equalization" formula so as to reflect the fact that in some districts much of the ostensible property tax base is unavailable for education purposes because of disproportionate non-educational demands upon it. In other words, rather than the formula providing that the State will grant aid equal to that which would be raised by applying the local tax rate to the difference between the guaranteed valuation and the local property tax base, the formula would provide that the State would grant aid equal to that which would be raised by applying the local tax rate to the difference between the guaranteed valuation and a figure more truly representative of the portion of the local property tax base which is actually available for educational purposes.
Thus, for example, the equalized valuation might be replaced in the "incentive-equalization" formula by the equalized valuation multiplied by the ratio of the percentage of local revenues used for school purposes to the statewide average percentage of local revenues used for school purposes (a measure of relative municipal overburden). See, e.g., Bateman Report, supra at 97-98; Grubb & Michelson, supra at 562-63; Mich. Comp. Laws Ann. § 388.1279 et seq. discussed in Grubb, "The First Round of Legislative Reforms in the Post-Serrano World," 38 Law & Contemp. Prob. 459, 484 (1974).
1. In the course of his opinion for the Court, Chief Justice Vanderbilt had this to say:
The doctrine [separation of powers] * * * has not only been accepted as a cardinal principle of American constitutional law but has been relied upon from our earliest days as a nation as a fundamental and indispensable bulwark against despotism. * * * Lord Acton's aphorism merits quotation at this point: "Power tends to corrupt and absolute power corrupts absolutely." Acton: Essays on Freedom and Power (1948). The doctrine of the separation of powers is the great contribution of Anglo-American lawyers to the prevention of absolutism and the preservation of the rights of the individual against the state. [2 N.J. at 363-64.]
2. The Court's reliance on Mills v. Bd. of Educ.,348 F.Supp. 866 (D.D.C. 1972), is misplaced. In Mills the District Court found a violation of equal protection in the school district's failure to provide an education for mentally handicapped children. The Board of Education asserted that no funds had been appropriated by Congress for that purpose. We suggest that the court was not persuaded by that contention because it was obvious that Congress intended no such restricted use of the appropriated funds and the Board was simply misinterpreting the appropriation law. However, even assuming the majority's interpretation of Mills is correct, we take notice of the fact the defendants there were not the executive and legislative branches of the federal government, but rather the Board of Education and the Commissioner of the District of Columbia. And they were directed merely to redistribute the funds made available to them.