450 N. J. 710 ATLANTIC REPORTER, 2d SERIES suspensions. As modified, the judgment of of funding public schools, students chal- the Appellate Division is affirmed. lenged constitutionality of funding plan de- veloped by state in response to judicial For modification and affirmance—Chief mandate. The Supreme Court found plan Justice PORITZ and Justices HANDLER, facially constitutional but unconstitutional as POLLOCK, O’HERN, GARIBALDI, STEIN applied to special needs districts (SNDs), and COLEMAN—7. ordered parity funding as interim remedy, Opposed–none. and remanded for fact-finding hearings, 149 N.J. 145, 693 A.2d 417. Following conduct , of fact-finding hearings by the Superior Court, Chancery Division, King, J., and sub- mission of Report and Recommendation 153 N.J. 480 with respect thereto, the Supreme Court, S 480Raymond ABBOTT, a minor, by his Handler, J., held that: (1) elementary school Guardian Ad Litem, Frances ABBOTT; reform plan proposed by state education Arlene Figueroa, Frances Figueroa, and finance officials comported substantially Hector Figueroa, Orlando Figueroa, and with statutory and regulaStory481 policies de- Vivian Figueroa, minors, by their fining constitutional guarantee of thorough Guardian Ad Litem, Blanca Figueroa; and efficient education; (2) full-day kinder- Michael Hadley, a minor, by his Guard- garten plan comported substantially with ian Ad Litem, Lola Moore; Henry Ste- same statutory and regulatory policies and vens, Jr., a minor, by his Guardian Ad was essential to satisfaction of constitutional Litem, Henry Stevens, Sr.; Caroline James and Jermaine James, minors, by guarantee; (3) implementation by special their Guardian Ad Litem, Mattie James; needs districts of half-day pre-school pro- Dorian Waiters and Khudayja Waiters, grams for three- and four-year-olds satisfied minors, by their Guardian Ad Litem, requirements of funding statutes and was Lynn Waiters; Christina Knowles, Dan- within statutory authority of state Commis- iel Knowles, and Guy Knowles, Jr., mi- sioner of Education to order; (4) Supreme nors, by their Guardian Ad Litem, Guy Court would authorize individual middle and Knowles, Sr.; Liana Diaz, a minor, by high schools and school districts to request her Guardian Ad Litem, Lucila Diaz; and obtain resources necessary to enable Aisha Hargrove and Zakia Hargrove, mi- provision of on-site health and social ser- nors, by their Guardian Ad Litem, Patri- vices to students and adequate security, on cia Watson; and Lamar Stephens and basis of demonstrated need; (5) Court would Leslie Stephens, minors, by their Guard- direct Commissioner to approve such re- ian Ad Litem, Eddie Stephens, Plain- quests and provide or secure necessary tiffs, funding therefor; (6) Court would authorize v. Commissioner to implement supplemental Fred G. BURKE, Commissioner of Edu- technology programs, alternative schools or cation; Edward G. Hofgesang, New Jer- comparable education programs aimed at sey Director of Budget and Accounting; reducing dropout rate, accountability pro- Clifford A. Goldman, New Jersey State grams, and school-to-work and college-tran- Treasurer; and New Jersey State Board sition programs at request of individual of Education, Defendants. schools or districts or as he himself might otherwise direct; (7) Court would direct Supreme Court of New Jersey. Commissioner to provide or secure funding Argued March 2, 1998. for requested summer-school, after-school, Decided May 21, 1998. and school nutrition programs for which there is demonstrated need; (8) Court would In ongoing action by public school stu- direct Commissioner to approve requested dents alleging unconstitutionality of system art, music and special education programs ABBOTT BY ABBOTT v. BURKE N. J. 451 Cite as 710 A.2d 450 (N.J. 1998) beyond those required as part of reform failing to meet CCCS. N.J.S.A. 18A:7F–1 to plan, upon demonstration of need therefor; 18A:7F–34, 18A:7F–6, subd. b. (9) school districts would be required, by 3. Schools O148(1) January 1999, to complete enrollment pro- jections and five-year facilities management Plan proposed by state officials, requir- plans for state’s use in ascertaining its con- ing schools in special needs districts to offer struction needs; (10) square footage require- full-day kindergarten, comported substantial- ments for educational areas in elementary ly with statutory and regulatory policies de- schools contained in state’s proposed edu- fining constitutional guarantee of thorough cational adequacy standards (EAS) satisfied and efficient education and was essential to constitutional obligations; (11) specialized in- satisfaction of state’s constitutional obli- structional rooms for art, music and science gation, and Supreme Court would therefore were not universally required at elementary require its immediate implementation to school level; (12) state’s proposal to empow- remedy constitutional, statutory and regula- er Educational Finance Administration tory violations inherent in exSisting483 system. (EFA) to issue bonds and to serve as gen- N.J.S.A. Const. Art. 8, § 4, par. 1; N.J.S.A. eral construction manager effectively ad- 18A:7F–1 to 18A:7F–34, 18A:7F–6, subd. b. dressed need for adequate facilities and cap- 4. Schools O19(1) ital improvements inherent in reform plan; Statute and regulations governing early and (13) disputes arising with S 482respect to childhood education mandate three tiers of reform plan would be considered disputes funding for pre-school programs in special arising under School Laws and would be needs districts: undifferentiated funds to be subject to administrative resolution proce- spent on pre-school in districts having 20% dures governing such disputes. poor students; monies to be spent on pre- Remedial relief ordered. school education for three-year olds in dis- tricts with 40% poor students; and extra funds to be used for services for elementary 1. Schools O148(1) school students in districts with funds re- Elementary school reform plan proposed maining after first two mandates are met. by state education and finance officials com- N.J.S.A. 18A:7F–16; N.J.Admin. Code title 6, ported substantially with statutory and regu- chap. 19–3.2d. latory policies defining constitutional guaran- tee of thorough and efficient education, and 5. Schools O148(1) Supreme Court would require its adoption as Implementation by special needs dis- presumptive elementary school model to tricts of half-day pre-school programs for remedy constitutional, statutory and regula- three- and four-year-olds satisfied require- tory violations inherent in existing system; ments of funding statutes and was within plan was adaptable to statutorily mandated statutory authority of state Commissioner of Core Curriculum Content Standards (CCCS), Education to order, and Supreme Court and its implementation was within statutory would require expeditious implementation of authority of Department of Education. such programs to remedy constitutional, stat- N.J.S.A. Const. Art. 8, § 4, par. 1; N.J.S.A. utory, and regulatory violations inherent in 18A:7F–1 to 18A:7F–34, 18A:7F–6, subd. b. existing system; continuing absence of early educational intervention would undermine 2. Schools O19(1) children’s later educational performance in Evidence of failure of public schools in public schools. N.J.S.A. Const. Art. 8, § 4, special needs districts to satisfy statutorily par. 1; N.J.S.A. 18A:7F–1 to 18A:7F–34, mandated Core Curriculum Content Stan- 18A:7F–6, subd. b. dards (CCCS) was sufficient to justify invoca- tion of Department of Education’s statutory 6. Schools O148(1) authority to implement budgetary reforms, Supreme Court would authorize individ- even in absence of express findings by state ual middle and high schools and school dis- Commissioner of Education that schools were tricts to request and obtain resources neces- 452 N. J. 710 ATLANTIC REPORTER, 2d SERIES sary to enable provision of on-site health and quest of individual schools or districts, or as social services to students for which there he himself might otherwise direct, in satisfac- was demonstrated need, in satisfaction of tion of schools’ constitutional obligation to schools’ constitutional obligation to provide provide thorough and efficient education. thorough and efficient education; varying N.J.S.A. Const. Art. 8, § 4, par. 1. needs of individual schools rendered imposi- tion of uniform system educationally un- S 48511. Schools O148(1) sound, and state shared with schools the Supreme Court would authorize state burden of ensuring provision of social service Commissioner of Education to implement al- component of thorough and efficient edu- ternative schools or comparable education cation. N.J.S.A. Const. Art. 8, § 4, par. 1. programs aimed at reducing dropout rate, at

S 4847. Schools O148(1) request of individual schools or districts or as Supreme Court would require state he himself might otherwise direct, in satisfac- Commissioner of Education to authorize tion of schools’ constitutional obligation to requested school-based health and social provide thorough and efficient education. service programs for which there was dem- N.J.S.A. Const. Art. 8, § 4, par. 1. onstrated need, and to provide or secure necessary funding therefor, to enable mid- 12. Schools O148(1) dle and high schools to satisfy schools’ Supreme Court would authorize state constitutional obligation to provide thor- Commissioner of Education to implement ac- ough and efficient education. N.J.S.A. countability programs at request of individu- Const. Art. 8, § 4, par. 1. al schools or districts, or as he himself might 8. Schools O148(1) otherwise direct, in satisfaction of schools’ constitutional obligation to provide thorough Supreme Court would authorize individ- and efficient education. N.J.S.A. Const. Art. ual middle and high schools and school dis- 8, § 4, par. 1. tricts to request and obtain resources neces- sary to provide adequate security, based 13. Schools O148(1) upon demonstrated need, in satisfaction of schools’ constitutional obligation to provide Supreme Court would direct state Com- thorough and efficient education; varying missioner of Education to implement school- needs of individual schools rendered imposi- to-work and college-transition programs in tion of uniform system educationally un- secondary schools in special needs districts at sound, and state’s proposal for uniform sys- request of individual schools or districts or as tem was not linked to actual needs and Commissioner otherwise required, in satis- therefore lacked evidentiary basis. N.J.S.A. faction of schools’ constitutional obligation to Const. Art. 8, § 4, par. 1. provide thorough and efficient education. N.J.S.A. Const. Art. 8, § 4, par. 1. 9. Schools O148(1) Supreme Court would require state 14. Schools O148(1) Commissioner of Education to authorize re- quested school security programs for which Supreme Court would direct state Com- there was demonstrated need, and to provide missioner of Education to provide or secure or secure necessary funding therefor, to en- funding for requested summer-school, after- able middle and high schools to satisfy school, and school nutrition programs for schools’ constitutional obligation to provide which there was demonstrated need, to en- thorough and efficient education. N.J.S.A. able middle and high schools to satisfy Const. Art. 8, § 4, par. 1. schools’ constitutional obligation to provide thorough and efficient education; needs for 10. Schools O148(1) such programs would vary from school to Supreme Court would authorize state school, rendering blanket requirement with Commissioner of Education to implement respect thereto educationally unsound. supplemental technology programs at re- N.J.S.A. Const. Art. 8, § 4, par. 1. ABBOTT BY ABBOTT v. BURKE N. J. 453 Cite as 710 A.2d 450 (N.J. 1998)

15. Schools O19(1) S 48720. Schools O148(1) State Commissioner of Education is enti- School districts would be required, by tled, before seeking new appropriations to January 1999, to complete enrollment projec- fund demonstrably needed supplemental pro- tions and five-year facilities management gram requested by school in special needs plans, for state’s use in determining how to district, to first S 486determine whether funds utilize existing space and in ordering all new within existing school budget are sufficient to construction necessary to enable compliance meet school’s request. with program and class size requirements of judicially mandated school reform plan. 16. Schools O19(1) Implicit in state Commissioner of Edu- 21. Schools O148(1) cation’s determination that funds within ex- Square footage requirements for edu- isting school budget are sufficient to meet cational areas in elementary schools con- school’s request, pursuant to judicially-man- tained in state’s proposed educational dated school reform plan, for demonstrably adequacy standards (EAS) complied with needed supplemental program, is condition applicable regulations and were similar to that funds may not be withdrawn from or those used in recently constructed ele- reallocated within whole-school budget if that mentary schools and elsewhere, and will undermine or weaken either school’s therefore comported substantially with foundational education program or already statutory and regulatory policies defining existing supplemental programs. constitutional guarantee of thorough and 17. Schools O148(1) efficient education. N.J.S.A. Const. Art. 8, § 4, par. 1; N.J.Admin. Code title 6, Supreme Court would direct state Com- chap. 22–5.5. missioner of Education to approve requested art, music and special education programs 22. Schools O148(1) beyond those required as part of judicially Specialized instructional rooms for art, mandated school reform plan, upon demon- music and science were not universally re- stration of need therefor by requesting quired at elementary school level to permit school or district, to enable schools to satisfy schools in special needs districts to offer constitutional obligation to provide thorough exemplary programs in those areas, and indi- and efficient education. N.J.S.A. Const. Art. vidual schools and school districts would re- 8, § 4, par. 1. tain discretion under judicially mandated 18. Schools O148(1) school reform plan to request such facilities State’s constitutional obligation to pro- as they considered necessary. vide thorough and efficient education in- 23. Schools O97(1) cludes provision of adequate school facilities. N.J.S.A. Const. Art. 8, § 4, par. 1. State’s proposal to empower Educational Finance Administration (EFA) to issue bonds 19. Schools O148(1) for construction and improvement of school Deficiencies in public schools’ architec- facilities in property-poor districts and to tural and structural integrity, heating, venti- serve as general construction manager for all lation, and air conditioning systems, sanitary projects undertaken effectively addressed and water systems, fire protection and detec- need for adequate facilities and capital im- tion systems, plumbing fixtures, electrical provements inherent in judicially-mandated power and distribution, emergency egress school reform plan, provided that state in- alarms and signs, and communications sys- cluded in 100%-funded ‘‘approved costs’’ the tems directly affected health and safety of complete cost of remediating infrastructure children and were required to be first defects and life cycle deficiencies of schools in special remediated in phased-in facilities improve- needs districts and cost of construction of ment program included in judicially-mandat- any new classrooms needed to correct capaci- ed school reform plan. ty deficiencies. 454 N. J. 710 ATLANTIC REPORTER, 2d SERIES

S 48824. Schools O115, 148(1) Thronson, Newark, and Richard E. Shapiro, Any default in state’s continuing obli- Jersey City, on the briefs). gation to complete needs assessment with Douglas S. Eakeley, Roseland, for amicus respect to public schools in special needs curiae The League of Women Voters of New districts and to provide facilities educational- Jersey (Lowenstein, Sandler, Kohl, Fisher & ly adequate to permit children in those dis- Boylan, attorneys; Stephen R. Buckingham tricts to reach Core Curriculum Content and James C. Drury, on the brief). Standards (CCCS), as required by judicially- mandated school reform plan, if challenged Richard A. Friedman submitted a brief on and not corrected or addressed, would consti- behalf of amicus curiae New Jersey Edu- tute dispute under School Laws, entitling cation Association (Zazzali, Zazzali, Fagella aggrieved parties to seek redress in accor- & Nowak, Newark, attorneys; Mr. Friedman dance with procedures and standards govern- and Aileen M. O’Driscoll, on the brief). ing resolution of disputes thereunder. Joseph Charles, Jr., Jersey City, submit- N.J.S.A. 18A:7A–1 to 18A:7F–34. ted a brief on behalf of amicus curiae New 25. Schools O148(1) Jersey Legislative Black and Latino Caucus (Mr. Charles, attorney; Raul Garcia, on the State Commissioner of Education was brief). required to promulgate regulations and guidelines codifying education reforms incor- The opinion of the Court was delivered by porated in judicially-mandated school reform plan, including procedures and standards HANDLER, J. governing applications by individual schools and districts for needed programs and neces- Our Constitution mandates that the ‘‘Leg- sary funding. islature shall provide for the maintenance and support of a thorough and efficient sys- 26. Schools O19(1), 148(1) tem of free public schools for the instruction Disputes involving implementation, ex- of all the children in the State between the tension, or modification of existing education- ages of five and eighteen years.’’ N.J. Const. al programs under judicially-mandated school art. VIII, § 4, ¶ 1. This decision explains the reform plan, need for additional supplemen- remedial measures that must be implement- tal programs thereunder, allocation of bud- ed in order to ensure that public school chil- geted funds and need for additional funding dren from the poorest urban communities with respect thereto, and implementation of receive the educational entitlements that the standards and plans for the provision of capi- Constitution guarantees them. tal improvements and related educational fa- [1] The required remedial measures in- cilities required thereby would constitute corporate many of the recommendations ‘‘controversies’’ arising under School Laws made by Judge Michael Patrick King pursu- subject to administrative resolution proce- ant to the remand ordered by this Court in dure provided therein. N.J.S.A. 18A:7A–1 to Abbott v. Burke, 149 N.J. 145, 693 A.2d 417 18A:7F–34. (1997) (Abbott IV). These measures are based on a solid evidentiary record that was fully informed by the views and recommen- Peter Verniero, Attorney General of New dations of the Commissioner of the Depart- Jersey, for defendants (Mr. Verniero, attor- ment of Education, expert and knowledge- ney; Jaynee LaVecchia and Jeffrey J. Miller, able witnesses offered by both parties, and Assistant Attorneys General, of counsel; the Special Master. Most important, the Nancy Kaplen and Michelle Lyn Miller, Dep- educational programs to be implemented uty Attorneys General, on the briefs). through these remedial measures S 490comport S 489David G. Sciarra, Edison, and Paul L. substantially with the statutory and regulato- Tractenberg, Newark, for plaintiffs (Mr. Sci- ry policies that define the constitutional thor- arra, attorney; Mr. Tractenberg, David B. ough and efficient education. ABBOTT BY ABBOTT v. BURKE N. J. 455 Cite as 710 A.2d 450 (N.J. 1998) Disputes inevitably will occur and judicial tent of the educational deficiencies in the intervention undoubtedly will be sought in poor urban school districts. Abbott v. Burke, the administration of the public education 100 N.J. 269, 301–02, 495 A.2d 376 (1985) that will evolve under these remedial stan- (Abbott I). That hearing confirmed that the dards. Nevertheless, because of the Com- districts were not providing the constitution- missioner’s strong proposals for educational ally mandated thorough and efficient edu- reform and the Legislature’s clear recogni- cation and that the 1975 Act and its funding tion of the need for comprehensive substan- were unconstitutional as applied to those dis- tive educational programs and standards, we tricts. Abbott v. Burke, No. EDU 5581–88 anticipate that these reforms will be under- (OAL 1988). The Commissioner and the taken and pursued vigorously and in good State Board of Education disagreed. The faith. Given those commitments, this deci- Court, on direct appeal, reversed the State sion should be the last major judicial involve- Board’s decision and declared the 1975 Act ment in the long and tortuous history of the unconstitutional as applied to the State’s State’s extraordinary effort to bring a thor- twenty-eight poorest urban districts (special ough and efficient education to the children in its poorest school districts. needs districts, SNDs, or Abbott districts). Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 I (1990) (Abbott II). As a remedial measure, the Court ordered that the 1975 Act be The first round of this generational strug- amended or new legislation be passed to gle commenced in 1970 when students in ensure substantial equality in funding be- poor urban school districts brought suit to tween the special needs districts and the enforce the New Jersey Constitution’s edu- property-rich districts. Id. at 385, 575 A.2d cational guarantee. Robinson v. Cahill, 118 359. The Court required that the level of N.J.Super. 223, 287 A.2d 187 (Law Div.1972). In successive decisions, this Court found that funding ‘‘be adequate to provide for the spe- the system of public school funding then in cial educational needs of these poorer urban place was unconstitutional. See Robinson v. districts’’ and ‘‘address their extreme disad- Cahill, 62 N.J. 473, 303 A.2d 273 (1973); vantages.’’ Ibid. The Court also deter- Robinson v. Cahill, 63 N.J. 196, 306 A.2d 65, mined that special programs and services cert. denied, 414 U.S. 976, 94 S.Ct. 292, 38 L. were required in the special needs districts. Ed.2d 219 (1973); Robinson v. Cahill, 67 Id. at 386, 575 A.2d 359. N.J. 35, 335 A.2d 6 (1975); Robinson v. Cahill, 69 N.J. 133, 351 A.2d 713, cert. denied The Legislature then enacted the Quality 423 U.S. 913, 96 S.Ct. 217, 46 L. Ed.2d 141 Education Act of 1990. L. 1990, c. 52 (codi- (1975). The Legislature responded by enact- fied at N.J.S.A. 18A:7D–1 to –37 (repealed)). ing the Public School Education Act of 1975 The Court, in 1994, found that statute uncon- (1975 Act), L. 1975, c. 212 (codified at stitutional as applied to the special needs N.J.S.A. 18A:7A–1 to –33 (repealed)), which districts because it failed to ensure parity of this Court found to be facially constitutional. educational spending. Abbott v. Burke, 136 Robinson v. Cahill, 69 N.J. 449, 355 A.2d 129 N.J. 444, 451, 643 A.2d 575 (1994) (Abbott (1976); Robinson v. Cahill, 70 N.J. 155, 358 III). The Court also found that contrary to A.2d 457 (1976); Robinson v. Cahill, 70 N.J. the Court’s determination in Abbott II and in 464, 360 A.2d 400 (1976). disregard of a specific legislative directive, L. The second round of the struggle com- 1991, c. 259, § 2, the Commissioner did not menced in 1981, when public school students address the supplemental programs that from Camden, East Orange, Irvington, and were needed to assist disadvantaged stu-

S 491Jersey City challenged the constitutionali- dents. The Court reiterated its conclusion ty of the 1975 Act as applied. The Court from Abbott II that achievement of edu- remanded the case for an Administrative cational success in the SNDs would not occur Law Judge to develop an evidentiary record until such supplemental programs and to demonstrate the existence, nature and ex- S 492services were identified and implemented. 456 N. J. 710 ATLANTIC REPORTER, 2d SERIES

Abbott III, supra, 136 N.J. at 454, 643 A.2d to initiate a study and to prepare a report 575. with specific findings and recommenda- In response to Abbott III, the Legislature, tions covering the special needs that must in 1996, passed the Comprehensive Edu- be addressed to assure a thorough and cational Improvement and Financing Act efficient education to the students in the (CEIFA). L. 1996, c. 138 (codified at SNDs. That report shall identify the addi- N.J.S.A. 18A:7F–1 to –34). Plaintiffs chal- tional needs of those students, specify the lenged the new legislation. The Court found programs required to address those needs, CEIFA to be facially constitutional in its determine the costs associated with each of adoption of substantive standards, referred the required programs, and set forth the to as ‘‘Core Curriculum Content Standards’’ Commissioner’s plan for implementation of (CCCS), that served to define a thorough and the needed programs. In addition, the efficient education. Abbott IV, supra, 149 Superior Court shall direct the Commis- N.J. at 168, 693 A.2d 417. However, the sioner to consider the educational capital Court found CEIFA to be unconstitutional as and facility needs of the SNDs and to applied to the SNDs because the statute determine what actions must be initiated failed to guarantee sufficient funds to enable and undertaken by the State to identify students in those districts to achieve the and meet those needs. requisite academic standards, id. at 174, 693 [Id. at 199–200, 693 A.2d 417 (footnote A.2d 417; because CEIFA’s supplemental omitted).] programs, Demonstrably Effective Program The Court also authorized the Superior Aid (DEPA), N.J.S.A. 18A:7F–18, and Early Court to appoint a Special Master to assist in Childhood Program Aid (ECPA), N.J.S.A. the proceedings and in that court’s review of 18A:7F–16, were not based on a study of the the recommendations of the parties. Id. at students’ actual needs or the costs of meeting 200, 693 A.2d 417. those needs, id. at 180, 693 A.2d 417; and Judge King, a presiding judge of the Ap- because the statute failed to address the pellate Division, was temporarily assigned to facilities problems of the SNDs, id. at 186, the Chancery Division to conduct the remand 693 A.2d 417. proceedings. Consistent with the Court’s au- At that point, sixteen years after the start thorization, Judge King designated Dr. Allan of the Abbott litigation, the Court found that Odden, a professor at the University of Wis- the continuing constitutional deprivation had consin–Madison, as Special Master. persisted too long and clearly necessitated a remedy. Id. at 201–02, 693 A.2d 417. While At the direction of the Superior Court, recognizing that increased funding for regu- both parties submitted reports on and recom- lar education in the SNDs was not sufficient mendations concerning supplemental pro- to remedy the educational deficiencies in grams, facilities needs, and implementation. those districts, we mandated, as an interim The Superior Court then conducted hearings remedy, that the State provide parity fund- on the proposals. Following those hearings, ing for each SND for the 1997–1998 school Dr. Odden submitted a report focusing on year. Id. at 189, 693 A.2d 417. The Court special needs programs. See Appendix II at also directed that firm administrative con- 636–663, 710 A.2d at 527–541. Both parties trols accompany this increased funding to responded to that report. ensure the money was spent effectively and On January 22, 1998, Judge King issued efficiently. Ibid. his report and recommendation. See Appen- The Court then remanded the case to the dix I at 529–636, 710 A.2d at 474–527. After Superior Court, Chancery Division, to deter- reviewing the different proposals put forth mine what judicial relief was necessary in by the parties, he recommended that the order to address the need for supplemental following programs be implemented: whole- programs and facilities improvements in Ab- school reform, full-day kindergarten for five- bott districts. Id. at 224–26, 693 S 493A.2d 417. year-olds, full-day pre-kindergarten for four- Accordingly, the Court authorized the Supe- and three-year olds, summer school, school- rior Court to direct the Commissioner based health and social services, an accounta- ABBOTT BY ABBOTT v. BURKE N. J. 457 Cite as 710 A.2d 450 (N.J. 1998) bility system, and added security. App. I at ence, social studies, music, art, and programs 607–613, 710 A.2d at 512–515. The Court for the gifted.1 now addresses those recommended reforms S SFA strives to ensure that, as each and other proposed remedial measures. 495 student moves from pre-school through ele- mentary school, he or she reads at the appro-

S 494II priate level. For ninety minutes each day, students are put in reading groups of fifteen The Commissioner proposed that elemen- that are organized according to reading level, tary schools in the Abbott districts undergo regardless of age or grade. For first ‘‘whole-school reform,’’ a comprehensive ap- through third graders who are having trou- proach to education that fundamentally alters ble with reading, SFA includes an additional the way in which decisions about education daily twenty-minute one-on-one tutoring ses- are made. A school implements whole-school sion; for students in higher elementary reform by integrating reform throughout the grades, SFA includes a daily group tutoring school as a total institution rather than by session composed of slightly larger groups. simply adding reforms piecemeal. If carried Children are assessed every eight weeks to out successfully, whole-school reform affects determine their progress and their need for the culture of the entire school, including the extra tutoring session. instruction, curriculum, and assessment. According to Dr. Robert Slavin, SFA’s The reform covers education from the earli- founder and the State’s expert, one of the est levels, including pre-school, and can be benefits of SFA is ‘‘neverstreaming,’’ the pro- particularly effective in enabling the disad- cess whereby the school ‘‘tr[ies] to prevent vantaged children in poor urban communities children from needing special education for to reach higher educational standards. reading disabilities.’’ The theory behind the process is that SFA’s high-quality, intensive A. reading program will allow children with poor reading skills but otherwise normal in- The Commissioner’s recommended version telligence to succeed in reading, whereas in of whole-school reform for elementary the past they might have been classified as schools is Success For All (SFA), a nationally learning disabled solely on the basis of their proven program that addresses the reading language skills. Neverstreaming does not deficits of low-income, at-risk public school apply to all categories of special education. children. SFA was one of five different re- There are categories of special education stu- search-based whole-school reform models dents, i.e., the severely disabled, for which considered by the Commissioner. According special education services would be provided to the Commissioner’s proposal, a school in the usual way. According to the Assistant could adopt one of the other four models Commissioner for Finance in the DOE, some approved by the Commissioner if it could districts ‘‘may choose never to neverstream.’’ show convincingly that the alternative model it chose would be equally effective and effi- Judge King, in accepting the basic propos- cient as SFA or that the model was already al for whole-school reform, understood that in place and operating effectively. the neverstreaming process would reduce the need for special education programs. See SFA has two different components. The App. I at 605, 710 A.2d at 512. Neverthe- primary component is called ‘‘Success for less, he was emphatic in recommending that All,’’ a program that focuses on reading, writ- special education not be neglected and that ing, and language arts. The second compo- adequate funding be provided for special ed- nent, ‘‘Roots and Wings,’’ concentrates on ucation when needed. See App. I at 605–607, mathematical skills and problem solving, sci- 710 A.2d at 512. We interpret the Commis-

1. Roots and Wings itself has two different com- ing. ‘‘WorldLab’’ is the portion that focuses on ponents. ‘‘Math Wings’’ is the component that social studies, science, music, art, and programs focuses on mathematic skills and problem solv- for the gifted. 458 N. J. 710 ATLANTIC REPORTER, 2d SERIES sioner’s testimony, as did Judge King, ‘‘as The success of whole-school reform de- assuring adequate money in individual pends on obtaining the support and approval school-based budgets for all extant worthy of teachers, staff, and parents. See Joel F. programs, including special education, and Handler, Down From Bureaucracy: The we take him at his S 496word on this point.’’ Ambiguity of PrivatizaStion497 and Empower- See App. I at 606, 710 A.2d at 512. Thus, in ment 194 (1996). Thus, the model SFA pro- schools where neverstreaming demonstrably gram contemplates that eighty percent of the does not or will not work, additional funds teachers and other school staff vote to ap- may be required to implement traditional prove or ‘‘buy into’’ whole-school reform. special educational services, including the The Center for Social Organization of hiring of teachers trained in special education Schools, the SFA sponsor organization, esti- and the provision of specially designed or mates that it could implement SFA in fifty equipped rooms. Abbott schools in the 1998–1999 school year, in 100 Abbott schools in the following year, The administration, supervision, and imple- and in the remaining Abbott elementary mentation of SFA is multifaceted. SFA in- schools in the third year. It takes three cludes a family support team that assists years to implement SFA fully in any given students with non-academic problems and is school. Thus, under the Commissioner’s rec- composed of various members of the school ommendations, SFA could be fully operative community, including social workers, counsel- in all Abbott elementary schools within five ors, parent liaisons, administrators, teachers, years. and parents. As Dr. Slavin testified, the goal The Commissioner voiced the State’s of the family support team is to utilize school strong commitment to implementing whole- and community resources to ensure that chil- school reform. The DOE will facilitate the dren come to school every day prepared to implementation process by providing re- learn. The support team would provide sources to help review budgets, coordinating health, counseling, nutritional, tutorial or oth- necessary support, and assisting in the tran- er needed services. Additionally, SFA re- sition from centralized to site-based manage- quires a program facilitator, who ensures ment. If a district or school is hesitant in its that all the elements of SFA are properly implementation of whole-school reform, the implemented and coordinated, and a school- DOE will exercise its ‘‘essential and affirma- based management or advisory team consist- tive responsibility’’ to ensure the necessary ing of school administrators, teachers, and changes. parents. The Commissioner recommended the im- Recognizing that professional development plementation of SFA at a high level. As Dr. is key to the implementation of whole-school Odden noted, the Commissioner’s proposal, reform, the Commissioner recommended that responsive to the acute educational needs of every Abbott school implement a professional the Abbott districts, exceeds the require- development program that is continuous, fo- ments of the prototypical program: cuses on student achievement of the CCCS, [The State] expanded every element of the and is based on ongoing professional renew- [SFA] model. For example, the standard al. Prior to the school year, each member of model assumes a class size of 25, while the the SFA instructional team would receive at State proposed a class size of 21. The least three full days of in-service training. standard model assumes four tutors for a The school principal and program facilitator school of five hundred with nearly all stu- would undergo a week long training session. dents eligible for free or reduced lunch; Additional training time would be provided the State model proposes 5.5 tutors. The for teachers functioning as tutors and for the standard model assumes a full day kinder- family support team. During the school garten but does not require any preschool, year, there would be weekly in-school train- while the State model proposes a half day ing sessions and three two-day evaluations four-year old preschool programTTTT The by SFA staff. standard model assumes a part time family ABBOTT BY ABBOTT v. BURKE N. J. 459 Cite as 710 A.2d 450 (N.J. 1998) liaison or a full time para-professional par- ous state standards of success. Moreover, ent liaison, while the State model not only the Assistant Commissioner for Finance in proposes a certified professional as the the DOE indicated that SFA could incorpo- family liaison, but goes beyond that and rate the CCCS. Janice Anderson, the Vice proposes a full, five member family, health, Principal of Asbury Park’s Thurgood Mar- and social services team. The standard shall Elementary School, a school using SFA, model assumes no technology but the State also testified that her school was able to model includes substantial technology. conform the SFA program to New Jersey’s The standard model assumes a full-time, CCCS. schoolwide instructional facilitator, and the State model not only proposes that position Under the Commissioner’s proposal for but a technology coordinator as well. The whole-school reform, class sizes would be standard model assumes about $65,000 for reduced to twenty-one students per class for professional development and materials, kindergarten through third grade and twen- while the State has proposed nearly twice ty-three students per teacher for fourth and that amount. So the State has taken the fifth grades. Class sizes for reading would best and most solid, research-proven effec- be fifteen for grades K–5. Plaintiffs claim tive, urban district elementary school mod- that the implementation of whole-school re-

el in the S 498country and enhanced nearly form should be accompanied by a class-size all its key features. The proposal is a reduction to fifteen students per teacher for strong, expensive, substantive proposal all subjects through S 499third grade, not just which could serve as a model for the rest for reading. However, Dr. Odden indicated of the country. in his report that whole-scale class size re- [App. II at 641–642, 710 A.2d at 529– duction as such has ‘‘only [a] modest im- 530.] pact[ ]’’ on student learning, see App. II at 652, 710 A.2d at 535, and Judge King found Whole-school reform entails ‘‘zero-based that ‘‘[c]onceptually, whole-school reform like budgeting.’’ Under this scheme, the school SFA and class-size reduction to fifteen are combines all of its sources of revenue or alternative programs.’’ App. I at 609, 710 ‘‘funding streams’’ and uses the aggregated A.2d at 514. Noting that SFA requires stu- amount as the basis for the entire school dents to spend 90 minutes or 30% of the budget. In other words, instead of allocating instructional day in reading groups of 15, certain funds to specific programs, the school Judge King concluded: ‘‘If SFA is imple- uses the entirety of its funds to implement mented effectively and works, this is suffi- whole-school reform. The Commissioner’s cient.’’ App. I at 609, 710 A.2d at 514. We proposal for whole-school reform at a high find sound support for that conclusion and level is premised on the assumption that the concur in Judge King’s recommendation that budgets of Abbott elementary schools contain it will not be essential to reduce class size in and will continue to contain not only parity the elementary schools to an extent greater funds, but also DEPA and ECPA funds. than that proposed by the Commissioner. Consistent with the Commissioner’s proposal, Judge King recommended that both the pari- In addition, we do not find persuasive ty funding authorized in Abbott IV, supra, plaintiffs’ argument that SFA is beyond the 149 N.J. at 189, 693 A.2d 417, and these DOE’s statutory authority or is inconsistent other funding streams be continued. See with this Court’s prior determination in Ab- App. I at 607, 710 A.2d at 512. We agree. bott IV. Even though there is no express Plaintiffs claim that the Commissioner’s statutory authorization for whole-school re- whole-school reform plan will not provide the form, the Commissioner’s recommendation is constitutionally guaranteed thorough and ef- consistent with the expansive powers given ficient education because the plan is not tied him under CEIFA. For example, N.J.S.A. to the CCCS. However, Dr. Slavin’s testi- 18A:7F–6b provides that when the Commis- mony about SFA’s impact in different states sioner determines that a school is failing to implied that SFA can be adapted to fit vari- achieve the CCCS, he ‘‘may summarily take 460 N. J. 710 ATLANTIC REPORTER, 2d SERIES such action as he deems necessary and ap- and J districts passed at proficiency levels propriate, including but not limited to: (1) I or II versus 40.7% of the Abbott stu- directing the restructuring of curriculum or dents. Further, 49.2% of the I and J programs; (2) directing staff retraining or students passed at the highest level of reassignment; (3) conducting a comprehen- proficiency (level I) compared to 6.9% in sive budget evaluation; (4) redirecting ex- the Abbott schools. For the October 1995 penditures; (5) enforcing spending at the full HSPT, data showed 91.7% of I and J stu- per pupil T & E [i.e., thorough and efficient] dents passed all sections with 94.9% pass- amount; and (6) TTT reviewing the terms of ing reading, 96.5% passing math, and future collective bargaining agreements.’’ 97.4% passing writing. In contrast, only Additionally, under N.J.S.A. 18A:7F–6c, the 41.8% of students in the Abbott districts Commissioner is given the power to review passed all sections of the HSPT with 55.9% the proposed budgets of Abbott districts and passing reading, 58.7% passing math, and reallocate the funds within the budget if the 71.3% passing writing. funds are not being ‘‘appropriately directed so that students in the districts are provided [App. I at 549–550, 710 A.2d at 484 the educational opportunity’’ to meet the (internal citations and footnote omitted).] CCCS. In these circumstances of pervasive aca-

S 500[2] Although the Commissioner did demic failure, it can readily be inferred that not make the express determination required the Legislature intended that the Commis- by N.J.S.A. 18A:7F–6b that schools in Abbott sioner’s broad remedial powers under CEI- districts are failing to meet the Core Curric- FA were sufficient to deal with the problem. ulum Content Standards, the evidence of Whole-school reform is an action deemed chronic failure among those schools is indis- ‘‘necessary and appropriate’’ by the Commis- putable. Thus, Judge King found: sioner. See N.J.S.A. 18A:7F–6b. Further, Students in these Abbott schools often the several elements of whole-school reform failed to attain statewide academic stan- are consistent with the authority that dards. Achievement levels in 148 of the N.J.S.A. 18A:7F–6b specifically grants the schools in twenty districts fell below State Commissioner. For example, mandating standards in reading, writing, or math for whole-school reform entails ‘‘directing the re- three consecutive years as measured by structuring of the curriculum or programs.’’ the eighth grade Early Warning Test See N.J.S.A. 18A:7F–6b(1). Professional (EWT) and the eleventh grade High management and the training of teachers in School Proficiency Test (HSPT). Addi- whole-school reform is implicit in the power tionally, eighty-three schools failed to meet to direct ‘‘staff retraining or reassignment.’’ the standards on one or more of these See N.J.S.A. 18A:7F–6b(2). The zero-based subjects for one year and twenty-nine budgeting as a comSponent501 of whole school failed for two consecutive years. The reform is encompassed in the Commission- State now operates three Abbott districts er’s power to ‘‘redirect[ ] expenditures.’’ See by takeover (Newark, Paterson, and Jer- N.J.S.A. 18A:7F–6b(4). sey City), see N.J.S.A. 18A:7A–34 to –52; five more confront State intervention if It follows that whole-school reform is a they do not develop corrective action plans remedial measure that can create the oppor- to improve student achievement. tunity to achieve a thorough and efficient Most recent available test data provided by education. It is consistent with both legisla- the State showed marked variations in the tive and executive educational policy and passing rates for the EWT and HSPT comports with the intended effect of this between students in the Abbott and I and J Court’s determination in Abbott IV. Because [i.e., the wealthier school] districts. State the evidence in support of the success of assessment data for the March 1996 EWT whole-school reform encompassing SFA is revealed that 92.3% of students in the I impressive,2 we adopt Judge King’s recom-

2. About 750 schools in the United States, includ- ing fourteen New Jersey schools, are using some ABBOTT BY ABBOTT v. BURKE N. J. 461 Cite as 710 A.2d 450 (N.J. 1998) mendation ‘‘that the State require the Abbott cial needs districts is an integral component districts to adopt some version of a proven, of whole-school reform. effective whole school design with SFA– Roots and Wings as the presumptive elemen- 1. tary school model.’’ See App. I at 607–608, [3] Both parties recommended full-day 710 A.2d at 512–513. We direct that imple- kindergarten for all Abbott five-year olds. mentation proceed according to the schedule According to the Commissioner’s report, proposed by the Commissioner and that SFA ‘‘[s]tudies have shown that well-planned, de- contain the essential elements identified by velopmentally appropriate full-day kinder- the Commissioner. Finally, we direct the garten programs for five-year-olds clearly Commissioner to implement as soon as feasi- provide one of the most cost-effective strate- ble a comprehensive formal evaluation pro- gies for lowering the dropout rate and help- gram, modeled on S 502SFA’s formal evaluation ing children at-risk become more effective precedents, to verify that SFA is being im- learners in elementary school, particularly in plemented successfully and is resulting in the first grade.’’ The Commissioner’s report anticipated levels of improvement in the Ab- also indicated that studies showed that stu- bott elementary schools. dents in full-day programs benefit more aca- demically than students in half-day pro- grams. Judge King ‘‘strongly endorse[d] the B. State’s commitment to full-day kindergar- ten.’’ App. I at 608, 710 A.2d at 513. We This Court has consistently recognized and concur. emphasized that early childhood education is essential for children in the SNDs. See, e.g., Full-day kindergarten comports with the Abbott IV, supra, 149 N.J. at 183, 693 A.2d requirements of SFA. Dr. Slavin testified 417. Accordingly, both parties submitted that schools implementing SFA should in- major proposals in respect of early childhood crease their half-day kindergarten programs education. The parties clearly recognized to full-day ones. S 503Further, full-day kinder- that early childhood programs are critically garten comports with statutory policy. CEI- important and address the fact that, if at-risk FA requires that any district receiving children are to have any chance of achieving ECPA must establish and maintain full-day educational success, they must be education- kindergarten for all five-year olds by the ready. As recommended by the Commis- 2001–2002 school year. N.J.S.A. 18A:7F–16. sioner and contemplated by the State’s ex- Finally, research clearly supports the no- perts and the Special Master, early childhood tion that full-day kindergarten is an essential education is consistent with whole-school re- part of a thorough and efficient education for form’s focus on early educational initiatives the Abbott children. Not only will the chil- and grade-by-grade continuity and improve- dren benefit in the long-run, as the empirical ment. Early childhood education in the spe- evidence demonstrates, but they will also be

form of SFA. Studies comparing SFA schools to of Asbury Park’s Thurgood Marshall Elementary control schools demonstrate that by the end of School, who testified that SFA was successful in first grade, children in SFA schools were reading her school. Judge King also provided anecdotal at a level three months beyond that achieved by evidence of a successful implementation of SFA their counterparts; by the end of fifth grade, the in New Jersey. In his report and decision, he SFA children were reading an average of slightly wrote that he ‘‘personally observed the SFA pro- more than a year above the control group. Sig- gram in Principal Annetta Braxton’s Cramer nificant improvements were shown in the prog- School (pre-kindergarten to grade four) in East ress of children who speak languages other than English, whether they were taught in that other Camden, a most impressive operation. These language or in English. children clearly were eager, ready and learning.’’ None of the research used the New Jersey SFA App. I at 605, 710 A.2d at 512. After three years schools. There was no indication, however, that with SFA, the school reported a 50% drop in the the experience in New Jersey would be different. number of students who needed remedial in- At the hearing before Judge King, the only testi- struction in second grade and a reduction from monial evidence of SFA’s success in New Jersey 13% to 5% in the number of grade one reten- came from Janice Anderson, the Vice Principal tions. 462 N. J. 710 ATLANTIC REPORTER, 2d SERIES better prepared to enter first grade and take sioner’s expert on childhood education, Dr. advantage of the opportunities presented by Slavin, noted that ‘‘the programs that have SFA and whole-school reform. shown the greatest success are ones that Full-day kindergarten is not yet available provide more intensive services’’ and ‘‘start in all Abbott districts. The demonstrated with three-year-olds rather than four-year- need for this program is acute. Because olds.’’ Common experience confirms this SFA will be implemented in the Abbott empirical evidence that pre-school attendance schools without further delay, and because is linked to success in school. the Commissioner himself has indicated a A 1996 report by the Carnegie Task Force willingness to ensure the availability of ade- on Learning in the Primary Grades lends quate temporary facilities, we affirm Judge further support to that conclusion. Carnegie King’s recommendation that full-day kinder- Corp. of New York, Years of Promise: A garten be ‘‘implemented immediately.’’ See Comprehensive Learning Strategy for Amer- App. I at 609, 710 A.2d at 513. In those ica’s Children (1996). The Report recom- schools unable promptly to locate or obtain mends that high-quality learning opportuni- adequate classroom space or instructional ties for children ages three to five be made staff, full-day kindergarten shall be provided universally available: by the commencement of the September 1999 During the preschool years, children make school year. The Commissioner’s endorse- the developmental leaps that form the ba- ment of full-day kindergarten signals and sis of later achievement. To get all chil- underscores the State’s commitment to pro- dren ready for school and for an education vide or secure the funds and resources essen- that meets high standards of achievement, tial for the effectuation of this early child- the task force recommends that the nation hood initiative. make a commitment to expanded high- quality public and private early care and 2. education programs for children ages three There is no fundamental disagreement to five, supported by national, state, and over the importance of pre-school education. local mechanisms that are coordinated to The Commissioner proposed half-day pre- assure adequate financing. school for four-year olds, and the plaintiffs [Id. at xi (emphasis added).] and Dr. Odden recommended full-day pre- Part of the basis of that recommendation is school for both three- and four-year olds. As that one-third of children entering elementa- the Commissioner’s research itself demon- ry school lack basic school-readiness skills. strates: ‘‘Well-planned, high quality half-day Id. at 17. One reason for this deficit is that preschool programs TTT help close the gap poor areas suffer from a scarcity of quality, between the home and school environments publicly-funded early care and early edu- and the educational expectations that lead to cation for three- to five-year olds. Id. at 57. academic success.’’ The evidence also shows that one of the Empirical evidence strongly supports the most important functions of early childhood essentiality of pre-school education for chil- education is language development. At the dren in impoverished urban school hearing, evidence was produced showing that children in low income families suffer greatly disStricts.504 That evidence demonstrates that the earlier education begins, the greater the in language development. Key elements of likelihood that students will develop language language development begin when a child is four; therefore, opportunities skills and the discipline necessary to succeed three and S 505 for those children to learn are lost if early in school. A review of two major studies on childhood education does not begin at those pre-school cited by the parties, the High/ ages. Scope Perry Preschool study and the Abece- darian study, also reveals that there is a [4] The Legislature itself has recognized strong correlation between the intensity and the necessity of early childhood education for duration of pre-school and later educational three- and four-year olds in the poorest progress and achievement. The Commis- school districts. N.J.S.A. 18A:7F–16 pro- ABBOTT BY ABBOTT v. BURKE N. J. 463 Cite as 710 A.2d 450 (N.J. 1998) vides that for districts in which the concen- such programs and is reflective of the same tration of low income pupils is greater than educational policy concerns underlying CEI- 20% but less than 40%, early childhood aid FA.3 ‘‘shall be distributed’’ for ‘‘the purpose of [5] In the vast majority of Abbott dis- providing full day kindergarten and pre- tricts, more than 40% of the population is low school classes and other early childhood pro- income. For these ECPA–2 Abbott districts, grams and services.’’ The statute does not then, pre-school for three-year olds is legisla- specify whether the pre-school aid should be tively mandated. As for the remaining hand- used for three-year olds or four-year olds or ful of Abbott districts where between 20 and both. For districts in which the concentra- 39% of their respective citizens are poor, we tion of low income pupils is equal to or note the following. The record is undisputed greater than 40%, the statute directs that and, indeed, uncontrovertible that the condi- additional funds be used ‘‘for the purpose of expanding instructional services previously tions that work to deprive children of their specified [i.e., pre-school classes and other constitutional entitlement to a thorough and early childhood services] to 3 year olds.’’ efficient education are pervasive not only in Ibid. For districts, then, with a 40% concen- the ECPA–2 Abbott districts, but in the tration of poor students, it is mandatory that ECPA–1 Abbott districts as well. The Court ECPA funds be expended for the pre-school concludes that the level of need in the education of three-year olds. The statute ECPA–1 Abbott districts for pre-school pro- next provides that should extra funds remain, grams for three-year olds is comparable to they may be used, ‘‘in addition to the instruc- that exhibited by ECPA–2 Abbott districts. tional services previously specified’’ [i.e., the Given the documented and undisputed simi- just mentioned pre-school for three-year olds larity of conditions that deleteriously impact and the aforementioned ‘‘early childhood pro- the ability of children throughout the Abbott grams’’], for ‘‘the purpose of’’ providing districts to receive a sound education, it ‘‘transition and social services to primary would be inconsistent with the legislative grade students.’’ Ibid. The statute thus mandate underlying CEIFA for the Commis- contemplates three tiers of funding: (1) un- sioner not to use his power under N.J.S.A. differentiated funds to be expended on pre- 18A:7F–6b to direct ECPA–1 Abbott districts school in Abbott districts with 20% poor to restructure their curricula in order to (ECPA–1 districts); (2) additional monies provide pre-school education for three-year that must be spent on pre-school education olds and to reallocate and apply ECPA funds for three-year olds in districts with 40% poor to the cost of providing pre-school education (ECPA–2 districts); and (3) extra funds to be for three-year olds. See App. I at 609, 710 used for services for elementary school stu- A.2d at 513 (finding that State ‘‘recogniz[ed] dents in districts with funds remaining after the efficacy’’ of pre-school programs for the mandates of (1) and (2) have been met. three-year olds in Abbott districts). This construction of the statute is borne This Court is convinced that pre-school for out by administrative regulation. See three- and four-year olds will have a signifi- N.J.A.C. 6:19–3.2d (providing that beginning cant and substantial positive impact on aca- in the 2001–2002 school year, ECPA may be demic achievement in both early and later used only for ‘‘preschool, full-day kindergar- school years. As S 507the experts described, ten and other early childhood programs the long-term benefits amply justify this in-

S 506and services’’). Finally, we note that vestment. Also, the evidence strongly sup- GoodStarts, a full-day pre-school program for ports the conclusion that, in the poor urban three- and four-year olds developed under school districts, the earlier children start pre- the Kean administration under the name school, the better prepared they are to face ‘‘Urban Early Childhood Initiative,’’ evi- the challenges of kindergarten and first dences the early recognition of the value of grade. It is this year-to-year improvement

3. GoodStarts continues to appear as an unfund- New Jersey Budget, Fiscal Year 1998–1999 at E–9. ed line-item in the 1999 budget. See State of 464 N. J. 710 ATLANTIC REPORTER, 2d SERIES that is a critical condition for the attainment rizes the Commissioner to require the Abbott of a thorough and efficient education once a schools to implement these programs as ex- child enters regular public school. peditiously as possible. In directing the im- Stated conversely, because the absence of plementation of pre-school programs in the such early educational intervention deleteri- Abbott schools, the Commissioner must en- ously undermines educational performance sure that such programs are adequately once the child enters public school, the provi- funded and assist the schools in meeting the sion of pre-school education also has strong need for transportation and other services, constitutional underpinning. In light of our support, and resources related to such pro- construction of N.J.S.A. 18A:7F–16, however, grams. The Commissioner may authorize and the powers of the Commissioner delin- cooperation with or the use of existing early eated in N.J.S.A. 18A:7F–6b, we need not childhood and day-care programs in the com- reach the constitutional issue. Cf. In re munity. If any Abbott schools are able to Kimber Petroleum Corp., 110 N.J. 69, 83, 539 obtain the space, supplies, teaching faculty, A.2d 1181 (1988) (holding that when faced staff, and means of transportation that are with the choice between finding a statute necessary to implement these programs for unconstitutional or construing it in a way to the 1998–1999 school year, they should be ‘‘free it from constitutional doubt or defect’’ supplied with the necessary funding to en- the Court should choose the latter). The able them to do so. The Commissioner shall provision in CEIFA for education of three- ensure that all other Abbott schools shall year-olds is a clear indication that the Legis- have the resources and additional funds that lature understood and endorsed the strong are necessary to implement pre-school edu- empirical link between early education and cation by the commencement of the 1999– later educational achievement. 2000 school year. We note that N.J.S.A. 18A:7F–16 does not unequivocally require districts receiving ECPA funds to provide a full day of pre- III school for either three- or four-year olds. Concluding that the available research on Because whole-school reform must be imple- mented gradually and pre-school education whole-school reform in middle and high must itself be integrated as part of that schools was incomplete, the Commissioner comprehensive reform, we concur in the did not recommend a specific program of Commissioner’s determination that, as an ini- whole-school reform for middle and high 5 tial reform, a half-day of pre-school should schools. He determined, however, that suc- enable Abbott children to be education-ready cessful implementation of whole-school re- when they enter primary school and thus form in the elementary S 509grades will have a allow them to take advantage of the opportu- salutary impact on educational performance nity to receive the thorough and efficient at the middle and secondary school levels. education that whole-school reform will pro- He also recommended several supplemental 4 vide. S 508The Court directs the Commission- programs that, while generally applicable to er to exercise his power under N.J.S.A. all Abbott schools no matter what the level, 18A:7F–6b and –16 to require all Abbott could be of particular importance in overcom- districts to provide half-day pre-school for ing the disadvantages that prevent middle three- and four-year olds. The Court autho- and high school students in the Abbott dis-

4. N.J.S.A. 18A:7F–16 mandates that ECPA funds 5. Dr. Slavin noted that whole-school reform pro- be used ‘‘for the purpose of providing full-day grams were being developed, tried, and evaluat- kindergarten and preschool classes’’ and that all ed for middle and secondary schools and that by Abbott districts ‘‘establish’’ such classes ‘‘by the September 1999 such programs might be intro- 2001–02 school year.’’ Given our decision to duced in Abbott middle and secondary schools. abide the results of the gradual implementation We infer that the Commissioner will at that time of whole-school reform and pre-school, we need determine whether the introduction of whole- not decide at this time whether ‘‘full-day’’ was school reform in Abbott middle and secondary meant to modify pre-school. schools is appropriate. ABBOTT BY ABBOTT v. BURKE N. J. 465 Cite as 710 A.2d 450 (N.J. 1998) tricts from achieving a thorough and efficient provided quickly, and address the health education. needs of uninsured students. Under the coordination and referral model A. favored by the Commissioner, the ‘‘school would not be responsible for providing the Judge King properly acknowledged the health and social services.’’ Rather, as the pervasive and urgent need for the provision Assistant Commissioner for Student Services of social services in the Abbott districts. See explained, the school would serve ‘‘as the App. I at 611, 710 A.2d at 514. The Commis- facilitator in terms of identifying what types sioner himself recognized the ‘‘significant of social services, health services, a child and health and social service needs’’ of children in family might need, and then utiliz[ing] the these districts and cited studies showing that expertise from those community resources low-income families face many problems par- who are in fact the experts in that area, to ticularly associated with poverty, such as make sure that the right combination of ser- substance abuse, teenage pregnancy and par- vices is provided to the family.’’ The State enthood, inadequate housing, violence, and prefers this system for several reasons. crime. The need for services to remedy First, there would be no ‘‘mission creep,’’ i.e., those problems is often not met in communi- the school would not be distracted from its ties with weakened infrastructures. Schools primary mission of educating students. Sec- frequently have to step in where community ond, the State felt that there are outside structures fail. When schools do step in, experts who are better suited to handle stu- research shows that there are positive, salu- dents’ problems. Finally, because different tary effects on student performance, attend- schools have different needs, it would be ance, and dropout rates, as well as an in- improper to order one on-site model for all creased opportunity for teachers to interact schools. with students. The research revealed two general ap- [6] There is clear support for a finding proaches for providing these services: direct that the provision of social services is within on-site service delivery and off-site service the school’s mission. In CEIFA, the Legis- delivery through on-site coordination and re- lature mandated that schools ‘‘shall’’ use ferral. Although there are many models of DEPA funds ‘‘for the purpose of providing TTT on-site services,6 such services generally en- health and social service programs to tail a school-based clinic providing preventive students.’’ N.J.S.A. 18A:7F–18a. In addi- and health education services, social work tion, the current budget, under the heading and mental health services, drug and ‘‘Educational Support Services,’’ directs the DOE to develop and implement programs in S 510alcohol counseling, dental services, labora- tory and prescription services, and primary the following areas: ‘‘[V]iolence prevention, health care, including reproductive health substance abuse prevention and education, services. Specialized medical care beyond comprehensive health education, suicide pre- that provided would be referred off-site. Ac- vention, school health S 511services, HIV/AIDS cording to plaintiffs, on-site social services education, [and] family life education.’’ State provision is a concept that is growing rapidly of New Jersey Budget, Fiscal Year 1998– across the country, with over 900 programs 1999 at D–91. currently in existence. Plaintiffs recom- Judge King agreed with plaintiffs and rec- mended on-site service provision and claimed ommended on-site provision of social ser- that it would free educators to concentrate vices: on instruction, reduce student absenteeism, These services should optimally be provid- ensure that services are provided and are ed at the school, confidentially and distinct

6. Plaintiffs presented three different models of the Snyder High School Adolescent Center (Sny- school-based services: a model presented by der Center) in Jersey City; and School–Based Lawrence E. Gottlieb, senior program officer at Youth Services Program (SBYS). See App. I at the NBI Health Care Foundation in Roseland, 592–594, 710 A.2d at 505–506 (describing the New Jersey; the model of services provided at three different models). 466 N. J. 710 ATLANTIC REPORTER, 2d SERIES

from the school’s educational administra- I think we should take a look at each tion, because as Human Services’ Assistant school, the needs of each school, the prob- Commissioner Tetelman testified: ‘‘That is lems in each school because every school where the kids are.’’ This court has ob- will be somewhat different. High schools served these programs at Camden High have different needs than elementary and School (including on-site maternity care) middle schools. Some of the Abbott dis- and at Woodrow Wilson High School, also tricts that are more suburban or more in Camden. These programs, when ade- rural may have different access issues in quately staffed and funded, are designed terms of how those individuals in that com- precisely to overcome the ‘‘extreme disad- munity get to health services. Communi- vantages facing children in the SNDs,’’ ties are different. There’s more drug which impede educational improvement. abuse in some communities, more crime in Abbott IV, 149 N.J. at 179 [693 A.2d 417]; other communities, more AIDS in other see Abbott II, 119 N.J. at 369 [575 A.2d communities. So I think each school 359]. should be looked at in terms of what the needs are of that particular school. [App. I at 611, 710 A.2d at 514–515.] A school’s needs may require any one of the Although in no way deprecating the ‘‘ex- models of social service provision described treme disadvantages’’ generally facing chil- at the remand hearing or some other configu- dren in the Abbott districts, we note that, ration yet to be developed. As the Commis- beginning as early as Abbott II, we have sioner recognized, adopting and ordering one stressed the importance of having the partic- uniform approach for every school to follow ularized needs of these children drive the would not be educationally sound. determination of what programs should be developed. See Abbott II, supra, 119 N.J. at Furthermore, it must be acknowledged 295, 575 A.2d 359; Abbott III, 136 N.J. at that the provision of such health and social 451–52, 643 A.2d 575; Abbott IV, supra, 149 services, although intimately affecting public N.J. at 198, 693 A.2d 417. However, the education in the special needs districts, is not Commissioner did not conduct a particular- the exclusive responsibility of the DOE. ized needs study nor did he base his recom- Other State agencies have regulatory con- mendations on actual needs; rather, he re- cerns and corresponding duties to address lied almost exclusively on national research such problems. Indeed, a successful pro- unrelated to New Jersey generally and Ab- gram noted by plaintiffs is SBYS, an on-site bott schools specifically. The same deficien- program developed and administered by the cy undermines plaintiffs’ proposals. The Department of Human Services. See App. I provision of supplemental programs involving at 593–594, 710 A.2d at 506. Thus, it is the necessary services should not be detached State, not just the DOE, that bears the re- from the actual needs of individual Abbott sponsibility for ensuring that the social ser- schools and districts. vice component of a thorough and efficient education is provided to Abbott students. Ultimately, what matters for the education This responsibility need not be placed exclu- of the Abbott students is that their health sively on the shoulders of the DOE. and social problems are remedied. If the problems are remedied, the classroom teach- [7] We direct the Commissioner to imple- ers can better carry out their educational ment his proposal to provide a community responsibilities. The particularized needs of services coordinator in every middle and sec- an individual school will inform the decision ondary school for the purposes of identifying of what type of program is necessary; differ- student need and arranging for community- ent schools will have different health and based providers to furnish essential health social service needs depending on their stu- and social services. However, because the dent populaStion512 and their location. As Dr. general need for social services for children Lawrence Gottlieb testified at the remand in Abbott schools is acute and indisputable, hearing: there must be an effective and realistic op- ABBOTT BY ABBOTT v. BURKE N. J. 467 Cite as 710 A.2d 450 (N.J. 1998) portunity for these schools to provide on-site er’s recommendation. For example, in Ab- services that go beyond mere referral and bott IV, S 514supra, we noted that approxi- coordination. Thus, we hold that individual mately twenty security guards are required schools and S 513districts have the right, based for Trenton High School’s 3000 students, 149 on demonstrated need, to request and obtain N.J. at 173, 693 A.2d 417; this is a ratio of the resources necessary to enable them to 1:150. Under the Commissioner’s security provide on-site social services that either are plans, Trenton High School would receive not available within the surrounding commu- only 13.3 security guards. nity or that cannot effectively and efficiently Security is a critically important factor in be provided off-site. Conversely, we hold the provision of a thorough and efficient edu- that the Commissioner has a corresponding cation. Inadequate security frustrates the duty to authorize requested school-based so- education process and is a great barrier to cial service programs for which there is a learning. To approve of security at a ratio demonstrated need and to provide or secure established by the funding requests of only necessary funding. two districts would be to divorce the provi- sion of security from the real needs that exist B. within the remaining districts. Without a Both parties recognized the need for in- link to actual needs, the Commissioner’s pro- creased security measures in the Abbott posal lacks an evidentiary basis. schools. [8, 9] The Court holds that individual Ab- The Commissioner recommended that bott schools or districts have a right to re- each school establish a code of student con- quest supplemental programs for security duct, employ full-time security personnel, and that the Commissioner must authorize and utilize protective devices such as metal the requested programs that are based on detectors. The Commissioner acknowledged demonstrated need and secure or provide that increased security would ensure the necessary funding. children’s safety and make the school envi- ronment conducive to learning. The Com- C. missioner proposed that a prototypical ele- mentary school of 535 students be allotted Several other supplemental programs were one security guard. For middle and high addressed at the hearing below. The Com- schools, he proposed one guard for every 225 missioner presented recommendations on students. The Commissioner based the sec- technology, school-to-work and college-tran- ondary school security ratio on numbers con- sition programs, alternative school programs, tained in Perth Amboy’s and Elizabeth’s pro- and accountability. Plaintiffs also recom- posals for using parity money. Plaintiffs did mended such programs and, in addition, not provide a specific plan for security. urged the adoption of summer school, after- The security needs of the students across school, and nutrition programs. the Abbott districts will vary based on a The Commissioner proposed and stressed range of factors peculiar to the individual the need for an extensive technology pro- schools. With their immediate proximity to gram wherein one computer would be provid- major metropolitan areas, schools in Jersey ed for every five students in grades K–12. City or Camden will undoubtedly have much The technology, including peripherals and different security needs than the schools in software, would be used as part of SFA, Vineland and Asbury Park. Even within one would help students master the basic and particular district, different schools may have advanced skills necessary to reach the different security needs. Declaring that se- CCCS, and would improve student motiva- curity should be deployed at the 1:225 ratio tion and learning. The Commissioner’s pro- derived from Perth Amboy’s and Elizabeth’s posal also includes a full-time media/technol- proposals does not address individual school ogy specialist to ensure that school and needs. We are certain there will be schools classSroom515 libraries have appropriate mate- that need security beyond the Commission- rials to supplement the curriculum, and a 468 N. J. 710 ATLANTIC REPORTER, 2d SERIES full-time technology coordinator to facilitate The Commissioner identified several the implementation and use of educational school-to-work and college-transition pro- technology throughout the school. grams, including career majors, work-based learning, connecting activities, and career de- The Commissioner also made recommen- velopment, as being important to education dations for students who are disruptive or and beneficial to students from low-income who have not been successful in traditional families who are in danger of failing. The learning environments. The program helps Commissioner pointed to research indicating prevent dropouts by providing more individu- that such programs lead to increased school alized instruction as well as necessary addi- attendance, reduced dropout rates, higher tional supports, such as job counseling, social motivation to learn, and greater likelihood of workers, and guidance counselors. Research pursuing further education. The Commis- shows that placing students in alternative sioner recommended that each Abbott dis- education programs decreases disruption in trict implement these programs. Plaintiffs the regular school and, for the students in agree on the need for school-to-work and the programs, increases academic perfor- college-transition programs. mance, fosters positive lifestyles, and reduces Plaintiffs proposed summer school as a aggressive behavior. The Commissioner rec- supplemental program. Plaintiffs’ report in- ommended that each Abbott district establish dicated that a summer program of instruc- an alternative middle school program and an tion, recreation, and paid employment would alternative high school program. The Com- prevent the learning loss that occurs when missioner also proposed that there be a drop- school is disrupted for an extended period out prevention specialist or counselor. Im- and would also provide structure during plicit in the Commissioner’s recommendation these unsupervised months. The Commis- that there be alternative school programs is sioner made no recommendations in this the commitment to provide or secure the area. Judge King agreed with plaintiffs and funding necessary to ensure that quality edu- the Special Master that summer school was cation extends to such alternative schools as needed and that the State must fund an well. Judge King endorsed the Commission- extended term or summer school program er’s recommendation for the establishment of for all interested children. See App. I at alternative schools and emphasized that the 610–611, 710 A.2d at 514. State’s obligation to provide adequate funds Plaintiffs also asserted that after-school extends to this program as well. See App. I programs for all grade levels were important at 608, 710 A.2d at 513. because the programs address the students’ The Commissioner recommended that a needs for additional instruction time to im- system of accountability be implemented. prove academic performance. Plaintiffs’ rec- According to the Commissioner, the system ommended program would include homework would include the establishment of baseline and tutorial assistance, computer training, data and the identification of progress bench- and recreation opportunities. Again, the marks and standards that are linked to the Commissioner made no recommendation in Core Curriculum Content Standards. The this area. results obtained from this accountability sys- Plaintiffs made a recommendation concern- tem would be used to make informed deci- ing nutrition; the Commissioner did not sions about program improvement. The mention this topic. Plaintiffs proposed that Commissioner also suggested a system of the DOE establish a nutrition program that rewards and sanctions for students, teachers, provides a high quality breakfast and lunch and entire schools. Plaintiffs offered no pro- for all students (including summer S 517school posals for accountability. Judge King con- students) and a high quality snack for after- cluded that accountaSbility516 mechanisms, school students. The program would fill the both fiscal and academic, are ‘‘essential to gap left by current breakfast and lunch pro- high performance and effective restructur- grams funded under 42 U.S.C.A. §§ 1751 to ing.’’ App. I at 612, 710 A.2d at 515. 1769(h). ABBOTT BY ABBOTT v. BURKE N. J. 469 Cite as 710 A.2d 450 (N.J. 1998) D. additional or modified supplemental pro- grams that are constituent parts of such [10–14] As with social services and secu- reform, there must also be in place a clear rity, there will be varying needs in the Ab- and effective funding protocol. Consistent bott schools for supplemental programs. with zero-based budgeting, the Commission- Consistent with the Commissioner’s recom- er may, before seeking new appropriations, mendations, we authorize him to implement first determine whether funds within an ex- technology programs at the request of indi- isting school budget are sufficient to meet a vidual schools or districts or as he otherwise school’s request for a demonstrably needed shall direct. We further authorize the Com- supplemental program. Implicit in any de- missioner to implement alternative schools or termination that existing appropriations are comparable education programs. Similarly, sufficient is the condition that funds may not we direct the commissioner to authorize ac- be withdrawn from or reallocated within the countability programs, as may be deemed whole-school budget if that will undermine or necessary or appropriate, and to coordinate weaken either the school’s foundational edu- them with whole-school reform. We also cation program or already existing supple- direct the Commissioner to implement mental programs. school-to-work and college-transition pro- grams in secondary schools in the Abbott districts at the request of individual schools [17] Underlying the Commissioner’s pro- or districts or as the Commissioner otherwise posal for whole-school reform, early child- shall require. In respect of the other supple- hood programs, and supplemental programs, mental programs, we decline to order their is the clear commitment that if there is a immediate district-wide implementation, even need for additional funds, the needed funds though all such programs are sound in princi- will be provided or secured. As Judge King ple. Rather, because the needs for these emphasized when discussing the possible in- programs will vary from school to school, we adequacy of budgeted funds: ‘‘[I]f the State direct the Commissioner to provide or secure found no additional funds available, Commis- the funding necessary to implement those sioner Klagholz vowed to seek supplementa- programs for which Abbott schools or dis- ry appropriations through the normal appro- tricts make a request and are able to demon- priation process.’’ App. I at 566, 710 A.2d at strate a need. We reiterate that for middle 492. Judge King also stressed that there and secondary schools, which will not have must be sufficient funding to ensure ‘‘exem- the benefit of whole-school reform, such sup- plary programs and facilities’’ for ‘‘special plemental programs may be necessary to education, art, and music.’’ App. I at 608, ensure the educational success of their stu- 710 A.2d at 513. If a school demonstrates dents. the need for programs beyond those recom- mended by the Commissioner, including pro- grams in, or facilities for, art, music, and IV special education, then the Commissioner The comprehensive whole-school reform shall approve such requests and, when neces- and supplemental programs that constitute sary, shall seek appropriations to ensure the the remedial measures adopted and approved funding and resources necessary for their by the Court markedly shift the emphasis in implementation. achieving a thorough and efficient education from financing as such to education itself. The provision of adequate funding, howev- Nevertheless, even though it is not feasible er, ultimately remains the responsibility of the Legislature. Requests by the Commis- at this S 518time to ascertain or mandate a that funds be appropriated to imple- specific funding level, adequate funding re- Ssioner519 ment educational programs deemed essential mains critical to the achievement of a thor- on the basis of demonstrated need will be the ough and efficient education. measure of the State’s constitutional obli- [15, 16] Not only must sufficient funds be gation to provide a thorough and efficient provided for whole-school reform and for the education, and we anticipate that the Legisla- 470 N. J. 710 ATLANTIC REPORTER, 2d SERIES ture will be fully responsive to that constitu- concerning how the State should address tional call. these needs, and to consider appropriate funding mechanisms. 149 N.J. at 225, 693 V A.2d 417. The DOE substantially complied It is undisputed that the school buildings with this mandate. Its study and proposals in Abbott districts are crumbling and obso- constitute the basis for appropriate and nec- lescent and that this grave state of disrepair essary remedial relief. not only prevents children from receiving a thorough and efficient education, but also A. threatens their health and safety. Windows, cracked and off their runners, do not open; [19] The DOE hired an engineering firm broken lighting fixtures dangle precipitously to conduct an examination of every Abbott from the ceilings; fire alarms and fire detec- school in order to determine compliance with tion systems fail to meet even minimum the Uniform Construction Code (Code) and safety code standards; rooms are heated by to identify components that are either non- boilers that have exceeded their critical life functional or have exceeded their life expec- expectancies and are fueled by leaking tancy. See App. I at 616, 710 A.2d at 517. pumps; electrical connections are frayed; Among the elements studied were architec- floors are buckled and dotted with falling tural and structural integrity; heating, venti- plaster; sinks are inoperable; toilet parti- lation, and air conditioning systems; sanitary tions are broken and teetering; and water and water systems; fire protection and de- leaks through patchwork roofs into rooms tection systems; plumbing fixtures; electri- with deteriorating electrical insulation. cal power and distribution; emergency Besides facing these decrepit and danger- egress alarms and signs; and communica- ous conditions, children in Abbott districts tions systems.7 Because deficiencies in these must also contend with gross overcrowding. areas directly affect the health and safety of Some class sizes hover around forty. Due to the children, these defects must be the first insufficient space, up to three different to be remediated in the necessary phased-in classes may be conducted simultaneously facilities improvement program. Because within the confines of one room. Libraries fixing the electrical power and distribution and hallways have been pressed into service systems would serve the dual purpose of as general classrooms. Some ‘‘classrooms’’ enhancing the safety of the building and are no more than windowless closets convert- allowing for the implementation of the ed by necessity into instructional areas. For State’s technology plan, this area should be children in these huddled spaces, ‘‘art’’ con- one of the first the State addresses. sists of coloring and ‘‘music’’ consists of sing- ing a song. S 521B. [18] These deplorable conditions have a direct and deleterious impact on the edu- The firm also addressed the overcrowding cation available to the at-risk children. The problem. See App. I at 618–619, 710 A.2d at State’s constitutional educational obligation 518. After compiling current enrollment fig- includes the provision S 520of adequate school ures and conducting an inventory of instruc- facilities. Consequently, in Abbott IV, supra, tional spaces that met minimum square foot- as part of the remedial relief to be deter- age parameters, the firm determined that mined and implemented, the Court ordered 3137 additional classrooms are needed to ac- the DOE to undertake a detailed assessment commodate the existing K–12 enrollment and of the facilities needs of the twenty-eight a half-day of pre-school for four-year olds. Abbott districts, to provide recommendations See App. I at 618–620, 710 A.2d at 518–519.

7. See Vitetta Group, New Jersey Abbott Districts 1998 at 1 (reviewing the Vitetta study and dis- Educational Facilities Assessment (1977); see cussing examples of the facilities problems found also Dunstan McNichol, Disintegrating Schools to exist in the Abbott districts). Hold Kids Hostage, Sunday Star Ledger, May 10, ABBOTT BY ABBOTT v. BURKE N. J. 471 Cite as 710 A.2d 450 (N.J. 1998) [20] Before any new classrooms are built, square footage parameters that the DOE however, each district is expected to com- proposed for new construction are similar to plete an enrollment projection and a Five– those used in recently constructed elementa- Year Facilities Management Plan (Plan). ry schools in this State and elsewhere. This Plan will enable the State and the dis- Thus, we decline to order the State to change trict to work together to determine how to its proposal in this area. make the ‘‘best use’’ of existing space. After [22] Plaintiffs also request that every ele- reviewing grade configurations, school send- mentary and middle school have specialized ing areas, school sizes, and each district’s instructional areas for art, music, and sci- individualized need for instructional space, ence. Although we agree with Judge King’s the State and the district will make the site- conclusion that it is essential to have an sensitive decision of whether it is more feasi- exemplary art and music program for Abbott ble to renovate existing buildings or to con- children because they may face cultural defi- struct new ones. According to the time- cits unknown to their more affluent counter- frame the State has submitted, the Plans and parts, see App. I at 608, 710 A.2d at 513, the the enrollment projections will be completed record does not support the conclusion that by January 1999, and architectural blueprints specialized instructional rooms are indispens- will be completed by the fall of that year. able to achieve that end. The individual Construction will begin by the spring of 2000. Abbott schools and districts should have the The Court directs that the formulation of discretion to decide initially whether special- these Plans be undertaken immediately. ized rooms for art, music, and science in- The proposed timeframe seems reasonably struction are required at the elementary lev- feasible, and the Court declines now to im- el. Should a school or district determine pose additional or unrealistic time con- that such rooms are educationally necessary straints.8 The Commissioner is directed to based on particularized need, its determina- ensure that the Plans are completed and that tion should be included in its Five–Year Fa- the deadlines are met. cilities Management Plan. The DOE should review that request and determination. The S 522C. determination of the local education authori-

[21] The DOE promulgated educational ties should be reviewed with S 523deference adequacy standards (EAS) to ensure that and with the understanding that the local every school has instructional areas sufficient educators are in the best position to know to enable the children to meet the CCCS. See the particularized needs of their own stu- App. I at 624–627, 710 A.2d at 521–522. Ele- dents. mentary classrooms would be general in- Accordingly, we accept the Commissioner’s structional rooms wherein all subjects are conclusions relating to the minimum stan- taught. An elementary school would also dards for instructional areas in Abbott contain a cafetorium (a combination cafeteria schools. We further direct that each Abbott and auditorium), a gymnasium, and four school or district shall be authorized to dem- small group instructional rooms. The small onstrate the need for additional, specialized group rooms would provide the space needed spaces and that the Commissioner secure or to implement the lower student-teacher ra- provide the necessary funds whenever such tios mandated by the SFA program. need is demonstrated. Plaintiffs disagree with the State’s recom- mended square footage parameters. Howev- D. er, the square footage parameters that the In the past, property-poor districts that DOE proposed for existing classrooms com- had a poor bond rating were unable to fi- ply with the minimum space requirements as nance needed construction. Recognizing outlined in N.J.A.C. 6:22–5.5. Also, the this, the DOE has recommended that the

8. Similarly, given that projected cost estimates construction costs were both under- and over- are speculative at best at this time, see App. I at estimated by the parties), we decline to impose 620–624, 710 A.2d at 519–521 (outlining how dollar restrictions. 472 N. J. 710 ATLANTIC REPORTER, 2d SERIES

Legislature amend N.J.S.A. 18A:72A–1 to adequate to ensure a thorough and efficient –58 to empower the Educational Facility Au- education. thority (EFA or Authority) to finance the construction and renovation of elementary E. and secondary schools in the Abbott districts. Under the proposed plan, a district would The State is committed to prioritize con- issue bonds in an amount consistent with its struction projects that will facilitate the full facilities needs as expressed in its Plan. The implementation of early childhood programs. district would then sell these bonds privately While awaiting the construction or renova- to the Authority, which would, in turn, sell tion of the necessary facilities, the Commis- them to the public. The Authority’s bonds sioner should, in order to meet his obligation would receive a triple A rating, and the debt to begin providing a half day of pre-school would be serviced using annual appropria- for three- and four-year olds in the fall of tions from the State. Because EFA-issued 1998, make use of trailers, rental space, or bonds are viewed in the market as one notch cooperative enterprises with the private sec- less than a general obligation of the State, tor. Consistent with the minimum require- there would be significant repercussions to ments that the DOE cited, these temporary the State and its credit rating were the Leg- spaces should be in buildings free of Code islature not to make an annual appropriation. violations, should be at least 600 square feet, and should contain toilet rooms visible to the [23] Besides allowing districts with poor teacher. The State has indicated that it is credit to finance their construction through prepared to move immediately to ensure the indirect market participation, this arrange- availability of adequate temporary facilities ment has other benefits. See App. I at 630– to implement pre-school in some Abbott 633, 710 A.2d at 524–525. The EFA would schools by the 1998–1999 school year and in serve as construction manager for all pro- all Abbott schools by the S beginning of the jects. The Authority would prepare specifi- 525 1999–2000 school year. cations for conSstruction,524 solicit bids for all work and materials required, enter into pro- ject contracts, invest any monies not re- F. quired for immediate disbursement, and re- [24] Given the extreme time constraints view all completed work before dispensing it faced, the State has adequately complied requisitioned funds. In short, the EFA with the facilities mandate in Abbott IV and would ensure efficient and satisfactory con- has submitted a reasonably feasible plan for struction. We determine that the State’s undertaking the completion of a needs as- proposal to provide and administer the fund- sessment and for correcting identified defi- ing for capital improvements would effective- ciencies in Abbott schools. We expect that ly address the need for adequate facilities the State will follow through in good faith and capital improvements. with its multi-phase implementation plan for The State’s proposal is based on the prem- facilities improvement. Abbott schools or ise that the State will fund 100% of ‘‘ap- districts shall have the authority to challenge proved costs.’’ After oral argument the the DOE should it default in its continuing State submitted to the Court its ‘‘master obligation to complete a needs assessment or funding formula’’ for determining which costs waiver in its commitment to provide facilities will be approved. We conclude that any that are educationally adequate to permit funding formula that does not fund the com- Abbott children to reach the CCCS. Such a plete cost of remediating the infrastructure default, if challenged and not corrected or and life cycle deficiencies that have been addressed, shall constitute a dispute under identified in the Abbott districts or that does the School Laws, N.J.S.A. 18A:7A–1 to 7F– not fully fund the construction of any new 34, and aggrieved parties, including both dis- classrooms needed to correct capacity defi- tricts and individual schools, may seek re- ciencies will not comport with the State’s dress in accordance with the procedures and constitutional mandate to provide facilities standards that shall govern the resolution of ABBOTT BY ABBOTT v. BURKE N. J. 473 Cite as 710 A.2d 450 (N.J. 1998) such disputes. See infra at 525–527, 710 authorization to improve or amend existing A.2d at 473. programs, to adopt additional supplemental programs, to build or to renovate facilities, VI and to seek the necessary funding. An ag- [25] With our holding today, funding re- grieved applicant may appeal to the Commis- mains a critical element in the provision of sioner from an adverse decision on any such public school education that will comport application made to the DOE. If the dispute with the basic education goals of CEIFA and is not resolved or if the applicant is not satisfy the constitutional mandate for a thor- satisfied with the disposition, the case may ough and efficient education. However, as be transferred under the Administrative Pro- noted, necessary funding levels cannot now cedure Act to the Office of Administrative be determined. The level of funding beyond Law as a contested case. See N.J.S.A. parity needed to ensure effectuation of 52:14B–1 to –15; N.J.A.C. 1:1–1.1 to –19.2. whole-school reform, to implement supple- After conducting a hearing, the Administra- mental programs, and to construct and reno- tive Law Judge will make a recommendation, vate essential facilities will depend to a great which the Commissioner may, in his discre- extent on many variables. These factors in- tion, accept or reject. Either party may clude difficulties in implementing whole- then appeal to the State Board of Education. school reform, the ability of individual The S 527Board’s determination will constitute a final agency determination that may then schools S 526to demonstrate particularized need for supplemental programs, the site-sensitive be appealed to the Appellate Division and, decision of whether to renovate an existing ultimately, to this Court. In this way, dis- school or to construct a new one, and an tricts and individual schools will be accorded assessment of the size of the pre-school pop- full administrative and judicial protection in ulation and the identification of adequate re- seeking the demonstrably-needed programs, sources for pre-school programs. Standards facilities, and funding necessary to provide and procedures are essential to effectuate the level of education required by CEIFA this process. We, therefore, direct the Com- and the Constitution. missioner to promulgate regulations and guidelines that will codify the education re- VII forms incorporated in the Court’s remedial In summary, and consistent with this opin- measures. These regulations shall include ion, we determine and direct that the Com- the procedures and standards that will gov- missioner implement whole-school reform; ern applications by individual schools and implement full-day kindergarten and a half- districts for needed programs and necessary day pre-school program for three- and four- funding. year olds as expeditiously as possible; imple- [26] We recognize that disputes will oc- ment the technology, alternative school, ac- cur in the administration of public education countability, and school-to-work and college- in the era ushered in by these reforms. transition programs; prescribe procedures Those disputes will involve issues arising and standards to enable individual schools to from the implementation, extension, or modi- adopt additional or extended supplemental fication of existing programs, the need for programs and to seek and obtain the funds additional supplemental programs, the alloca- necessary to implement those programs for tion of budgeted funds, the need for addition- which they have demonstrated a particular- al funding, and the implementation of the ized need; implement the facilities plan and standards and plans for the provision of capi- timetable he proposed; secure funds to cover tal improvements and related educational fa- the complete cost of remediating identified cilities. Such disputes shall be considered life-cycle and infrastructure deficiencies in ‘‘controversies’’ arising under the School Abbott school buildings as well as the cost of Laws. N.J.S.A. 18A:7A–1 to 7F–34. Based providing the space necessary to house Ab- on a showing of demonstrated need, schools bott students adequately; and promptly initi- or school districts may apply to the DOE for ate effective managerial responsibility over 474 N. J. 710 ATLANTIC REPORTER, 2d SERIES school construction, including necessary For remedial relief—Chief Justice funding measures and fiscal reforms, such as PORITZ and Justices HANDLER, may be achieved through amendment of the POLLOCK, O’HERN, GARIBALDI, STEIN Educational Facilities Act. and COLEMAN—7. In directing remedial relief in the areas of Opposed—None. whole school reform, supplemental programs, and facilities improvements, the Court re- S 529APPENDIX I mains cognizant of the interests of the par- SUPERIOR COURT OF NEW JERSEY ties, particularly those of plaintiffs who speak CHANCERY DIVISION—MERCER for and represent the at-risk children of the COUNTY special needs districts. The lessons of the S. Ct. DOCKET NO. A–155–97 history of the struggle to bring these chil- dren a thorough and efficient education RAYMOND ARTHUR ABBOTT, a minor, S 528render it essential that their interests re- by his Guardian Ad Litem, FRANCES main prominent, paramount, and fully pro- ABBOTT; ARLENE FIGUEROA, tected. FRANCES FIGUEROA, HECTOR FI- GUEROA, ORLANDO FIGUEROA, Whether the measures for education re- and VIVIAN FIGUEROA, minors, by form that are to be implemented will result their Guardian Ad Litem, BLANCA FI- in a thorough and efficient education for the GUEROA; MICHAEL HADLEY, a mi- children in the Abbott districts depends, in nor, by his Guardian Ad Litem, LOLA the final analysis, on the extent to which MOORE; HENRY STEVENS, JR., a there is a top-to-bottom commitment to en- minor, by his Guardian Ad Litem, HEN- suring that the reforms are conscientiously RY STEVENS, SR.; CAROLINE undertaken and vigorously carried forward. JAMES and JERMAINE JAMES, mi- That commitment on the part of the Execu- nors, by their Guardian Ad Litem, MAT- tive Branch has been demonstrated by the TIE JAMES; DORIAN WAITERS and Commissioner’s strong proposals and positive KHUDAYJA WAITERS, minors, by avowals to see these reforms through. The their Guardian Ad Litem, LYNN WAIT- Legislature’s commitment is evidenced by ERS; CHRISTINA KNOWLES, DAN- the sound and comprehensive public edu- IEL KNOWLES, and GUY cation that is contemplated by the statute KNOWLES, JR., minors, by their within which these reforms will be effected. Guardian Ad Litem, GUY KNOWLES, It is not enough, however, that the three SR.; LIANA DIAZ, a minor, by her branches of government, sometimes working Guardian Ad Litem, LUCILA DIAZ; together and sometimes at apparent odds, AISHA HARGROVE and ZAKIA HAR- have each responded to the challenge to car- GROVE, minors, by their Guardian Ad ry out the Constitution’s command of a thor- Litem, PATRICIA WATSON; and LA- ough and efficient education. We must reach MAR STEPHENS and LESLIE STE- the point where it is possible to say with PHENS, minors, by their Guardian Ad confidence that the most disadvantaged Litem, EDDIE STEPHENS, Plaintiffs, school children in the State will not be left out or left behind in the fulfillment of that v. constitutional promise. Success for all will FRED G. BURKE, COMMISSIONER OF come only when the roots of the educational EDUCATION; EDWARD G. HOF- system—the local schools and districts, the GESANG, NEW JERSEY DIRECTOR teachers, the administrators, the parents, OF BUDGET AND ACCOUNTING; and the children themselves—embrace the CLIFFORD A. GOLDMAN, NEW educational opportunity encompassed by JERSEY STATE TREASURER; and these reforms. NEW JERSEY STATE BOARD OF VIII EDUCATION, Defendants. REPORT AND DECISION The Court directs that remedial relief con- OF REMAND COURT sistent with this opinion be promptly under- taken. Decided: January 22, 1998 ABBOTT BY ABBOTT v. BURKE N. J. 475 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued

S 530TABLE OF CONTENTS Page I —IntroductionTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 475 II —Procedural HistoryTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 475 III —The Remand Order TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 483 IV —The State’s Presentation on Supplemental Programs TTTTTTTTTTTTTTTTTTTTTTTT 483 V —The Plaintiffs’ Presentation on Supplemental Programs TTTTTTTTTTTTTTTTTTTTTT 497 VI —Analysis of Supplemental Programs AspectTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 510 VII —The Presentation on the Facilities Aspect TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 516 VIII —Analysis of Facilities Aspect TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 525 Conclusion TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 526 Dr. Allan Odden’s Report of December 30, 1997 TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTAppendix A

On remand from the Supreme Court of preme Court issued an interim order in Ab- New Jersey. bott IV to remedy constitutional violations. David G. Sciarra, Executive Director, Edu- The Court directed the State to immediately cation Law Center, for plaintiffs. increase funding for regular education in the Special Needs Districts (SNDs) to achieve Jeffrey J. Miller, Assistant Attorney Gen- equality. The Court then ordered the Supe- eral, for defendants (Peter Verniero, At- rior Court, Chancery Division, on remand to torney General of New Jersey, attorney). examine potential remedial relief involving Cynthia J. Jahn, Director, Legal Depart- supplemental programs and facilities needs. ment, submitted a brief on behalf of ami- Consistent with the Abbott IV decision, cus curiae New Jersey School Boards As- this court appointed a consultant, Dr. Allan sociation. Odden of the University of Wisconsin at Richard A. Friedman submitted a brief on Madison, to help determine appropriate rem- behalf of amicus curiae New Jersey Edu- edies. The consultant assisted the court in cation Association (Zazzali, Zazzali, Fagella the proceedings and reviewed the record, & Nowak, attorneys). including the report prepared by the Com- Dorothy Dunfee, President, submitted a missioner of the Department of Education statement on behalf of amicus curiae The addressing special needs of children and fa- League of Women Voters of New Jersey. cilities in the SNDs. This opinion presents the remand court’s findings, conclusions, and KING, P.J.A.D. (temporarily assigned) recommendations for supplemental programs and facilities improvements necessary for ed- I ucating students in the State’s poorer urban districts, based on the testimony of the wit- INTRODUCTION nesses and the consultant’s recommenda- The New Jersey Constitution mandates tions. the State provide to all students in its public schools an opportunity to achieve a thorough II and efficient education. To meet this consti- PROCEDURAL HISTORY tutional obligation, the State currently must The New Jersey Constitution guarantees a assure: 1) parity between the most wealthy thorough and efficient educational opportuni- and poorest school districts in per pupil ex- ty to all children in the State who attend penditures for regular education; 2) supple- public schools. The Education Clause states: mental programs addressing special needs of ‘‘[t]he Legislature shall provide for the main- S students in poorer urban districts; and 3) 531 tenance and support of a thorough and effi- safe learning facilities. Abbott v. Burke, 149 cient system of free public schools for the N.J. 145, 693 A.2d 417 (1997) (Abbott IV). instruction of all the children in the State After a series of legislative acts failed to between the ages of five and eighteen years.’’ satisfy these obligations, the New Jersey Su- N.J. Const. art. VIII, § 4, ¶ 1. This provision 476 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued became the basis for a sustained legal chal- laws and assuring that all school children lenge which began over two decades ago. received a constitutionally-mandated edu- cation. On September 30, 1983 deSfen- S 532In 1973 the New Jersey Supreme Court interpreted the constitutional mandate to re- dants533 filed a motion to dismiss the com- quire the State to provide its children with plaint, contending that plaintiffs had failed ‘‘that educational opportunity which is need- to exhaust administrative remedies. The ed TTT to equip a child for his role as a Chancery Division judge granted the motion citizen and as a competitor in the labor mar- on November 28, 1983. ket.’’ Robinson v. Cahill, 62 N.J. 473, 515, After the Supreme Court issued an order 303 A.2d 273 (1973) (Robinson I ). In Robin- denying direct certification, the Appellate Di- son I plaintiffs challenged the State’s statuto- vision reversed the Chancery Division’s deci- ry scheme for financing public schools on the sion and remanded for a plenary hearing on ground that it violated the constitutional re- plaintiffs’ constitutional claims. Abbott v. quirement. To measure the State’s compli- Burke, 195 N.J. Super. 59, 477 A.2d 1278 ance, the Court focused on per-pupil expendi- (App.Div.1984). The Appellate Division tures and found the system unconstitutional found the exhaustion of administrative reme- because heavy reliance on the property tax dies doctrine did not apply because the con- fostered excessive financial disparities be- stitutional question was ‘‘beyond the power of tween school districts. Id. at 520, 303 A.2d the Commissioner to decide.’’ Id. at 74, 477 273; State School Incentive Equalization Aid A.2d 1278. More specifically, plaintiffs had Law, L.1970, c. 234. asked the court to find the Act’s funding In response to Robinson I, the Legislature provisions unconstitutional, not to correct ed- passed the Public School Education Act of ucational deficiencies through increased 1975 (1975 Act). N.J.S.A. 18A:7A–1 to –52. funding. In 1976, the Supreme Court found the 1975 The Supreme Court granted defendants’ Act facially constitutional, if fully funded. petition for certification. Abbott v. Burke, Robinson v. Cahill, 69 N.J. 449, 467, 355 97 N.J. 669, 483 A.2d 187 (1984). In Abbott A.2d 129 (1976) (Robinson V ). While the v. Burke, 100 N.J. 269, 495 A.2d 376 (1985) Court acknowledged the importance of ap- (Abbott I ), the Court recognized the pres- propriating minimum aid on a per-pupil ba- ence of constitutional claims but determined sis, the Court in 1976 considered the funding that the appeal presented only the narrow provision within the context of the entire Act. issue of which tribunal should consider the Id. Thus, the Court switched its focus from claim initially. However, the Court recog- equal dollars per pupil to the substantive nized that the merits of the constitutional content of the educational plan. challenge influenced the litigation’s proce- The procedural history of the case now dural course. After declaring the 1975 Act before this court began in 1981 when plain- constitutional on its face, the Court found tiffs filed a complaint in Superior Court, the evidence insufficient to resolve the issue Chancery Division, claiming the 1975 Act of whether the funding provisions rendered violated the Education Clause of New Jer- it unconstitutional as applied. In particular, sey’s Constitution, and the Equal Protection the record failed to permit resolution of Clauses of the New Jersey and United contested factual matters such as whether: States Constitutions. The plaintiffs, chil- 1) plaintiffs suffered substantial educational dren from the Camden, East Orange, Irv- deficiencies; 2) the Act’s funding scheme ington and Jersey City school districts, resulted in gross disparities among school sought a judgment declaring the 1975 Act’s districts and engendered inequalities in edu- funding provisions unconstitutional because cational resources; and 3) the State’s obli- they created financial disparities which de- gation to provide a constitutionally-mandat- nied them a thorough and efficient edu- ed education to special-needs children could cation. Defendants were State officials re- be met only by increasing financial aid to sponsible for administering public education their schools. Id. at 284–86, 495 A.2d 376. ABBOTT BY ABBOTT v. BURKE N. J. 477 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued

S 534In order to create an adequate factual tween property wealth and per-pupil expen- record, the Supreme Court ruled the case ditures. The Commissioner faulted the should be considered initially by an adminis- plaintiffs’ analysis because it compared the trative tribunal with the necessary training, poorest and richest districts, ignoring those expertise, and regulatory responsibility districts in the financial ‘‘middle.’’ Rather which could better address the issues of edu- than mandating equal programs and expendi- cational quality and municipal finance. Id. at tures, the Commissioner interpreted the 300–01, 495 A.2d 376. Moreover, the ulti- State Constitution to require only that chil- mate constitutional issues were quite fact- dren receive an education sufficient for them sensitive and could not be resolved absent a S 535to participate fully in the labor market. comprehensive factual record. Towards this The Commissioner concluded the 1975 Act’s end, the Court modified the Appellate Divi- reporting, monitoring and corrective provi- sion’s decision remanding to the Chancery sions assured that all students received a Division and transferred the case to the thorough and efficient education. Id. at 613– Commissioner of the Department of Edu- 14. If any district failed to achieve the con- stitutional standard, the Act provided a rem- cation (Commissioner) with the directive to edy by giving the Commissioner power to create ‘‘an administrative record sufficient to require the district to raise additional funds guide the adjudication of the constitutional or to take over operation of the district. issues on any future appeal.’’ Id. at 279, 495 A.2d 376. The Court ordered the Commis- The State Board of Education (Board) sioner, a defendant in Abbott I, to transfer adopted the Commissioner’s decision, al- the case to the Office of Administrative Law though the Board did recommend corrective (OAL) to conduct the initial hearing and fact- legislation to address capital construction finding. needs and ordered strengthening of the re- porting, monitoring, and corrective functions. After eight months of proceedings, Admin- Plaintiffs appealed and the Supreme Court istrative Law Judge Lefelt (ALJ) issued rec- certified the appeal directly. Abbott v. ommendations on August 24, 1988. Abbott v. Burke, 117 N.J. 51, 563 A.2d 818 (1989). Burke, No. EDU 5581–88 (OAL 1988). The In 1990 the matter came before the Su- factual findings documented extreme disad- preme Court for substantive review. Abbott vantages and unmet educational needs faced v. Burke, 119 N.J. 287, 575 A.2d 359 (1990) by students in the SNDs. The ALJ conclud- (Abbott II ). Plaintiffs again contended the ed the 1975 Act was unconstitutional as ap- 1975 Act was unconstitutional as applied be- plied because its funding mechanism contrib- cause its funding provisions created substan- uted to program and expenditure disparities tial disparities in expenditures and education- between property-rich and property-poor al input among school districts. The Court school districts. As a result, students did not agreed but only with respect to a limited receive an equal educational opportunity but number of districts. Specifically, the Abbott rather, an opportunity ‘‘determined by socio- II holding applied to twenty-eight poorer economic status and geographic location.’’ urban districts classified within District Fac- Id. at 14. tor Groups (DFGs) A and B, referred to as The then-Commissioner declined to accept the SNDs.1 Both financial disparities and the ALJ’s recommendations including the special needs created inferior educational factual finding of a strong relationship be- S 536opportunities that prevented these stu-

1. In 1974 the Department of Education (DOE) ered urban); and 7) unemployment (percent of ranked school districts by socioeconomic status people receiving some unemployment compensa- into ten District Factor Groups (DFGs). The DOE tion). The DOE updated the measurement in used seven factors to quantify school districts in 1984 based on the 1980 census. DFG A includes terms of their social and economic backgrounds. the districts with the lowest socioeconomic sta- These factors included: 1) per capita income tus, DFG J the highest. While the Commissioner level; 2) occupation level; 3) education level; 4) identified twenty-nine districts within the DFGs percent of residents below the poverty line; 5) A and B, the Court excluded Atlantic City be- density (average number of persons per house- cause of its high property wealth. Abbott II, 119 hold); 6) urbanization (percent of district consid- N.J. at 338–39, 342 n. 18, 575 A.2d 359. 478 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued dents from participating fully as ‘‘citizens and see Robinson V, 69 N.J. at 478–90, 355 A.2d workers in our society.’’ Id. at 384, 575 A.2d 129 (describing the Act’s funding scheme in 359. detail). Although the 1975 Act empowered To redress the constitutional deficiency, these districts to increase their budgets by the Court in Abbott II outlined a two-step raising unlimited funds, the scheme relied approach. First, funding for regular edu- too heavily on taxing a local property base cation in the SNDs must be substantially which invariably had nothing left to give. equal to that of property-rich districts with- Abbott II, 119 N.J. at 356–57, 575 A.2d 359. out relying upon local budget and taxing Municipal overburden from excessive taxa- tion for other governmental needs prevented decisions. Second, the new legislative plan these districts from raising substantially must provide aid for the special needs of more money. Id. at 321, 575 A.2d 359 (not- these students, that is, the offering of edu- ing that ‘‘these districts are just too poor to cational programs in the poorer urban dis- raise the money they theoretically are em- tricts with additional elements not needed in powered to.’’). the affluent districts. Id. at 374, 575 A.2d 359. The Court also recognized that new aid The 1975 Act also actually exacerbated the and educational programs could not assure a funding disparities first addressed in Robin- constitutional education if school facilities son I. Abbott II, 119 N.J. at 334, 575 A.2d provided an inadequate learning environ- 359 (documenting the increasing disparity in ment. The remedy required identification of expenditures prior to and several years after problems associated with aging, deteriorating the Act, even when adjusted for inflation). buildings and proposal of a plan for their To assure equality of educational opportuni- correction. ty, the Supreme Court ordered legislative reform to provide poorer urban schools with Plaintiffs contended the 1975 Act as ap- a guaranteed level of funding which did not plied was unconstitutional ‘‘in toto.’’ Id. at depend upon budget or taxing decisions of 301, 575 A.2d 359. They claimed the entire local school boards. The Court rejected the state educational system failed to provide a State’s contentions that: 1) educational defi- thorough and efficient education because of ciencies were caused by mismanagement; gross spending inequities between the poorer and 2) increased monitoring under the Act’s and more affluent districts. The Court, how- existing funding mechanism would achieve ever, declined to interpret the Education the constitutional mandate. Instead, the Clause to mandate equal expenditures per Court recognized a causal relationship be- student. Instead, the State must provide a tween dollars per pupil and educational op- certain substantive level of education, albeit portunity. Any remedy implemented by the one that continually changes. Once that lev- State must assure that per-pupil expendi- el is attained, equality of educational oppor- tures in the SNDs were approximately equal tunity is achieved regardless of how many to the average of property-rich districts. Id. districts spend beyond that amount. Fur- at 385, 575 A.2d 359. ther, the Court found no direct substantive Nonetheless, the Court recognized that evidence to show that a thorough and effi- money alone did not guarantee a thorough cient education did not exist in the middle and efficient education. Any legislative re- level DFG districts, including rural poor and sponse also must identify programs tailored older suburban districts. to meet the special needs of students in the Children in SNDs, however, clearly re- poorer urban districts and provide for their ceived a far inferior education than those in funding. These needs run the gamut from the richer I and J districts. For these stu- education to basic requirements of food, dents, the Act failed to achieve the constitu- clothing and shelter. While they are capable tional goal. Despite a variety of programs of performing as well as other children, spe- designed to provide aid to these poorer cial-needs students must surmount serious S 537schools, a vast gulf in educational spend- obstacles stemming from their socioecoSnom- ing remained. Id. at 324–30, 575 A.2d 359; ic538 status and environment. Id. at 340, 575 ABBOTT BY ABBOTT v. BURKE N. J. 479 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued A.2d 359. The 1975 Act recognized the inad- igates’’ the equal protection claim. 119 N.J. equacies of conventional education and made at 390, 575 A.2d 359. The plaintiffs had no categorical aid available to address special federal Equal Protection Clause claim. See needs such as compensatory education, bilin- San Antonio Indep. School Dist. v. Rodri- gual education, and education for disabled guez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 students. However, the Supreme Court (1973). Nor did the Court consider the issue found that such aid failed to address ade- of whether the existence of school districts quately these students’ disadvantages. Id. at coextensive with municipal boundaries consti- 374, 575 A.2d 359. While recognizing that no tuted de facto segregation which created ex- amount of money may achieve the constitu- treme racial and ethnic isolation in the public tional standard, the Court concluded these school system and deprived children of equal students were ‘‘entitled to pass or fail with at opportunity, in violation of the state constitu- least the same amount of money as their tion. See Sheff v. O’Neill, 238 Conn. 1, 678 competitors.’’ Id. at 375, 575 A.2d 359. A.2d 1267 (1996) (so holding in a 4–3 deci- sion). The Supreme Court also addressed the serious problems created by inadequate In response to Abbott II, the Legislature physical facilities. Many schools in the passed the Quality Education Act of 1990 SNDs were so deteriorated they did not pro- (QEA) which established a new system for vide a successful, safe learning environment. distributing State aid to school districts. N.J.S.A. 18A:7D–1 to –37. The QEA at- As observed in Robinson I, 62 N.J. at 520, tempted to achieve parity in per-pupil expen- 303 A.2d 273, the State is obligated to make ditures within five years. Unlike the 1975 capital expenditures to keep public school Act, the QEA’s funding mechanism did not buildings in good repair. In 1990, an esti- rely upon local budgets or taxes but created mated $3 billion was needed to completely a complex foundation budget for each dis- upgrade all State public school facilities. Ab- trict. State aid for regular education was bott II, 119 N.J. at 362, 575 A.2d 359. The distributed based on a statutorily-set maxi- Court recognized that the Legislature was mum foundation amount, representing the best suited to devise a program to identify typical per-pupil cost of providing a quality facilities problems and bring about their cor- education. The QEA then increased the rection. However, if the Legislature failed weighted foundation amount for the SNDs, to do so, the Court would be ‘‘obliged under ensuring they received more aid than the I the Constitution to consider the matter.’’ Id. and J districts until they achieved parity in at 391, 575 A.2d 359. per-pupil expenditures. Additionally, the Finally, the Abbott II Court declined to QEA created a new aid program for ‘‘at-risk’’ rule on plaintiffs’ equal protection claim. students designed to provide for their special Plaintiffs argued that property wealth affect- educational needs. Funding for these new ed what they considered their fundamental aid categories first became effective in 1991– right to education. Plaintiffs contended the 92 and would be fully phased in by the 1995– State could offer no compelling interest to 96 school year. justify determining the level of education On June 12, 1991 plaintiffs reacted to the based on whether a district was property- QEA by moving for post-judgment relief in rich or property-poor. Previously, the Court an application to the Supreme Court. Plain- had expressed concern that application of the tiffs asked the Court to assume jurisdiction equal protection doctrine to the financing of and declare the QEA facially unconstitution- education would lead to a similar analysis for al. The Court denied the motion in all re- a vast range of other essential government spects, did not retain jurisdiction, and re- services that are not provided on a uniform manded the matter to the Superior Court, dollar basis. Robinson, 62 N.J. at 492–501, Chancery Division.

303 A.2d 273. But, the Court declined to S 540In 1993 the Superior Court, Chancery address S 539these concerns in Abbott II be- Division, declared the QEA unconstitutional cause it found the remedy ‘‘substantially mit- as applied because it did not comply with the 480 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued Abbott II mandates. Abbott v. Burke, No. appropriate remedial programs and their 91–C–00150, 1993 WL 379818 at *14 (Ch. costs. Div. August 31, 1993). Chancery Division Recognizing that the Department of Edu- Judge Levy held the QEA failed to assure cation (DOE) and Legislature could best de- that funding for regular education in the termine issues related to parity funding and SNDs would approximate the more affluent special needs, the Supreme Court affirmed districts within the projected five years. To the Chancery Division’s decision but did not reach parity, the special-needs weight must order any specific remedies. Rather, the be increased by more than 400% by the Court offered to entertain applications for 1995–96 school year. Id. at *11. However, relief only if there appeared little chance of the QEA left any increases to the discretion achieving substantial equivalence in expendi- of the Governor. The court concluded that it tures for regular education or if the edu- was ‘‘almost impossible’’ to expect the Gover- cational needs of students in the SNDs could nor to make a recommendation for such a not be met by the 1997–98 school year. Id. dramatic increase to the Legislature. Id. at 447–48, 643 A.2d 575. Further, the at-risk aid program failed to In April 1996 plaintiffs filed a motion with meet the goals of Abbott II. First, as with the Supreme Court in aid of litigants’ rights. special-needs weights, the QEA arbitrarily R. 1:10–3. Plaintiffs claimed the State failed determined the sums available; the Legisla- to discharge its duties to achieve parity in ture did not conduct a study of additional funding for regular education and to provide costs associated with these special services. supplemental programs necessary for the The QEA also used an outdated, prior-year SNDs. On September 10, 1996 the Supreme pupil population to calculate the at-risk pro- Court denied the motion without prejudice gram funding. Consequently, the total because new legislation to address these con- amount of aid available represented only a cerns was under consideration by the Legis- small portion the court found actually was lature. However, the Court said that if no needed. Additionally, the Chancery Division remedial legislation was enacted by Decem- judge found the pace of progress in identify- ber 31, 1996 plaintiffs could renew their mo- ing and implementing at-risk programs unac- tion. See Abbott IV, 149 N.J. at 160, 693 ceptably slow. Id. at *14. A.2d 417. On appeal, the Supreme Court affirmed Subsequently, on December 20, 1996, the the judgment of the Superior Court, Chan- Legislature enacted the Comprehensive Edu- cery Division, and held the QEA unconstitu- cational Improvement and Financing Act of tional as applied to the SNDs. Abbott v. 1996 (CEIFA). N.J.S.A. 18A:7F–1 to –34. Burke, 136 N.J. 444, 643 A.2d 575 (1994) Unlike the previous statutes, CEIFA set aca- (Abbott III ). The Court based its decision demic standards that must be achieved by all on the QEA’s failure to assure substantially students, identified programs to accomplish equivalent expenditures for regular education these goals, provided a funding mechanism to by the richer and poorer districts. In fact, ensure their support, and included mecha- the QEA did not guarantee sufficient funding nisms for enforcement. to the SNDs so they could spend the CEIFA defined the constitutional require- amounts necessary to achieve parity. Id. at ment of a thorough and efficient education 451, 643 A.2d 575. The Court also expressed using a ‘‘standard-based’’ approach. These concern that the QEA failed to include a standards provided achievement goals in sev- mechanism to monitor the use of any addi- en core curriculum areas including visual and tional funds and suggested the State consider performing arts, comprehensive health and whether such supervision should be under- physical education, language-arts literacy, taken. Finally, the QEA did not address math, science, soScial542 studies, and world adeSquately541 the special needs of these stu- languages. Local school districts were re- dents. Although required to do so, the Com- quired to develop curricula to achieve these missioner never conducted a study to identify goals. CEIFA scheduled a statewide assess- ABBOTT BY ABBOTT v. BURKE N. J. 481 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued ment program over the next six years to The Court did find CEIFA otherwise fa- measure student progress. cially constitutional. The use of content and The Legislature based CEIFA’s funding performance standards embodied the accept- provisions on fixed per-pupil costs of deliver- ed definition of a thorough and efficient edu- ing the core curriculum content standards cation, i.e., to prepare all students with a meaningful opportunity to participate in their and other activities considered necessary for community. See Abbott I, 100 N.J. at 280– a fundamental education. Unlike the QEA, 81, 495 A.2d 376. Instead Abbott IV focused these ‘‘T & E amounts’’ (thorough and effi- sharply upon these issues: 1) whether CEI- cient) allegedly were not assigned arbitrarily FA’s funding provisions for regular education but correlated with educational achievement. were unconstitutional as applied to the N.J.S.A. 18A:7F–3. The fiscal standards SNDs; 2) whether CEIFA’s provisions for were derived from a hypothetical school dis- supplemental aid were unconstitutional as ap- trict model and actual costs were determined plied to the SNDs; and 3) whether CEIFA’s using statewide averages. CEIFA required failure to address the need for facilities im- each school district to raise part of the per- provements rendered it inadequate as a re- pupil expenditure based on its ability to pay, medial measure and thus unconstitutional. with the State assuming responsibility for The Supreme Court concluded that CEI- the difference. FA’s funding provisions failed to provide the To redress the disadvantages of special- constitutionally-mandated education to stu- needs students, CEIFA provided aid for two dents in the SNDs. The model district ap- programs targeted to school districts with proach was inadequate to determine the high concentrations of low-income pupils: amount of money needed for regular or fun- Demonstrably Effective Program Aid damental education. The hypothetical model (DEPA) and Early Childhood Program Aid neither resembled any of the State’s success- (ECPA), funded at about $100 million and ful districts nor incorporated characteristics $200 million, respectively.2 DEPA provided of the SNDs. Rather, the model treated all aid to school districts for ‘‘instructional, districts the same without considering their school governance, and health and social ser- diverse environments. Abbott IV, 149 N.J. vice programs.’’ N.J.S.A. 18A:7F–18(a). at 169–72, 693 A.2d 417. The Court also ECPA distributed funds ‘‘for the purpose of rejected the model’s basic assumption that all providing full-day kindergarten and pre- students, if given the same advantages, were school classes and other early childhood pro- equally capable of exploiting them. This grams and services.’’ N.J.S.A. 18A:7F–16. premise ignored the factual record showing that students in poorer urban districts re- After passage of CEIFA, plaintiffs re- quired special programs to overcome their newed their motion for judicial relief. Plain- severe disadvantages. tiffs claimed that CEIFA’s funding provi- sions failed to guarantee them a thorough CEIFA was unconstitutional as applied be- cause it did not achieve substantial equality and efficient education. in per-pupil expenditures for regular edu- S 543Again, the Supreme Court found the cation throughout all districts. Instead, it legislative response unconstitutional as ap- created a two-tiered S 544system by permitting plied to the SNDs. Abbott v. Burke, 149 N.J. property-rich districts to raise additional 145, 693 A.2d 417 (1997) (Abbott IV ). CEI- funds through local taxation; property-poor FA failed to guarantee sufficient funds to districts which could not increase taxes real- enable students in the poorer urban districts istically or effectively were capped at an to achieve the requisite academic standards. amount the Court found insufficient. There- Also, the supplemental programs did not ad- fore, richer districts inevitably would spend dress adequately their special needs. more per student than the SNDs. Further,

2. In his affidavit to the Supreme Court on Janu- CEIFA provided the Abbott districts with $200.1 ary 30, 1997, filed in the plaintiffs’ proceeding in million in ECPA and $108 million in DEPA for aid of litigants’ rights, Michael Azzara, Assistant 1997–98. Commissioner for Finance, DOE, stated that 482 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued CEIFA established fixed per-pupil costs that and overcrowded. Yet, despite repeated ad- fell below the amounts assigned arbitrarily monitions by the Court that adequate facili- by the QEA. The ‘‘T & E amount’’ was set at ties were essential, the DOE never studied $6720 per elementary school pupil, only $80 this problem. See Abbott II, 119 N.J. at 362, more than the QEA foundation amount; the 575 A.2d 359 (‘‘A thorough and efficient edu- ‘‘T & E amount’’ for a high school student cation also requires adequate physical facili- was even less than the amount the QEA ties.’’); Robinson I, 62 N.J. at 520, 303 A.2d considered necessary for a quality education. 273 (‘‘The State’s obligation includes as well Id. at 174, 693 A.2d 417. the capital expenditures without which the required educational opportunity could not CEIFA’s provisions for supplemental aid be provided.’’). Absent a detailed study of also did not address adequately the special facilities needs, the Court could not deter- needs of students in the poorer urban dis- mine the sufficiency of funds available tricts. In Abbott II, the Court required addi- through ECPA to repair or expand existing tional aid to the SNDs so their students school buildings to accommodate early child- could achieve the Constitution’s command. hood programs. Abbott IV, 149 N.J. at 184, 119 N.J. at 374, 575 A.2d 359. Again, in 693 A.2d 417. Abbott III, the Court directed the State to identify and implement special-needs pro- The Abbott IV decision stressed that a grams. 136 N.J. at 454, 643 A.2d 575. De- comprehensive remedy to assure an equal spite judicial emphasis on this remedial com- educational opportunity to students in the ponent, the Legislature did not undertake a SNDs required meaningful legislative and executive efforts. In their absence, the Su- comprehensive study to identify special preme Court mandated interim judicial mea- needs, supplemental programs or their costs. sures. See Jean Anyon, Ghetto Schooling Rather, CEIFA identified only two initia- 146–48 (Teachers College Press 1997), for tives to address special needs. For both general discussion. DEPA and ECPA, the statute set predeter- First, the Supreme Court required in- mined amounts for funding. However, the creased funding of regular education to en- Legislature provided no explanation or analy- sure parity in per-pupil expenditures ($8664 sis of how it arrived at these figures. The per pupil) between the SNDs and the I and J Court also expressed concern over implemen- districts. Further, the State must guarantee tation. Although CEIFA provided a list of that each SND receives these funds by the programs which qualified for DEPA, the Act beginning of the 1997–98 school term. Ab- did not require the poorer urban districts to bott IV, 149 N.J. at 197, 693 A.2d 417. The implement them; neither did it provide evi- Court refused to delay implementation of the dence of sufficient aid to cover their costs. remedy any longer because the State already Abbott IV, 149 N.J. at 181, 693 A.2d 417. had seven years to comply with the 1990 Likewise, districts could apply for ECPA to order for judicial relief in Abbott II. Addi- establish full-day kindergarten and preschool tionally, the Court directed that firm admin- classes but operational plans were not due istrative controls accompany this parity fund- until the 2001–02 school year. The Court ing. Abbott IV, 149 N.J. at 193, 693 A.2d found the delay a ‘‘glaring weakness.’’ Id. at 417. Towards this end, the Commissioner 183, 693 A.2d 417. must develop adminisStrative546 procedures to S 545Alternatively, CEIFA allowed the use of assure the money is spent effectively and ECPA for facilities construction related to efficiently. early-childhood instruction. Facilities im- Second, the Court ordered the State to provements had to be addressed if the State implement supplemental programs providing was to meet its constitutional obligation to for special needs of students in the twenty- provide a thorough and efficient education. eight SNDs. The Court found that the State The 1988 findings of the ALJ documented gave no heed to Abbott II and Abbott III; it that many school buildings in the poorer never undertook a comprehensive study to urban districts were deteriorating, unsafe, determine these needs, identify appropriate ABBOTT BY ABBOTT v. BURKE N. J. 483 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued remedial programs or evaluate costs of im- to participate in any proceedings; and 6) plementation. Likewise, the State failed to prepare and submit a final report including conduct a facilities review even though prior findings, conclusions, and recommendations court decisions stressed its importance. along with responses and exceptions of the Thus, Abbott IV also required the State to parties. assess current facilities needs. The Abbott IV decision also gave authority to the Superior Court to conduct proceedings III with the Commissioner and all parties. The Order permitted appointment of a Special THE REMAND ORDER Master, with the Supreme Court’s approval, After holding that CEIFA was unconstitu- to assist with the proceedings and the Supe- tional as applied to the SNDs, the Supreme rior Court’s review of the Commissioner’s report. The Special Master could be asked Court ordered judicial relief in three areas: to submit to the Superior Court a report parity funding, supplemental programs, and including findings, conclusions, and recom- facilities needs. The Court remanded the mendations for special programs and facili- latter two issues to the Superior Court, ties needs in the SNDs. Chancery Division to implement the remedial order. The Remand Order required the Superior Court to render a decision by December 31, To effectuate the remedy for parity fund- 1997 based upon its review of the Commis- ing, the Court ordered the following: 1) the sioner’s report, the Special Master’s report, State must provide increased funding to the and any additional evidence. This decision twenty-eight SNDs to assure they spend a must include the remand court’s findings, substantially equivalent amount per pupil in conclusions, and recommendations, including the 1997–98 school year as the average, actu- whether or not the Commissioner’s proposals al, budgeted per-pupil expenditures in the I complied with the judicial remedies ordered and J districts; and 2) the State, through the in Abbott IV. The Court later extended the Commissioner, must manage, control, and su- time for decision to January 20, 1998. pervise the implementation of this additional funding. IV The Court remanded the case to the Supe- THE STATE’S PRESENTATION ON rior Court, Chancery Division, to implement SUPPLEMENTAL PROGRAMS the judicial relief involving supplemental pro- The Supreme Court in Abbott IV recog- grams and facilities needs. While recogniz- nized that equality of expenditures alone ing that educators are most qualified to ad- does not translate into a comparable edu- dress these concerns, the Court concluded cational opportunity for students in the the judiciary can ‘‘provide necessary proce- SNDs and property-rich I and J districts. dures and identify the parties who best may Abbott IV, 149 N.J. at 202, 693 A.2d 417. devise the educational, programmatic, and Rather, S 548students who live in poorer urban fiscal measures to be incorporated in such communities must cope with a wide range of remedial relief.’’ Abbott IV, 149 N.J. at 199, social and economic disadvantages which ad- 693 A.2d 417. versely affect their ability to learn in school.

S 547The Court ordered the Superior Court Acknowledging the expertise of educators to to direct the Commissioner to: 1) conduct a determine an appropriate remedy, the Court study of special educational needs of stu- directed the State ‘‘to study, identify, fund, dents attending school in the SNDs and iden- and implement the supplemental programs tify appropriate supplemental programs; 2) required to redress the disadvantages of pub- determine the costs of these programs; 3) lic school children in the special needs dis- devise a plan for their implementation; 4) re- tricts.’’ Id. at 153, 693 A.2d 417. view facilities needs and provide recommen- The State responded by proposing to im- dations to correct them; 5) allow all parties prove substantially the academic achieve- 484 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued ment of disadvantaged students through Americans (45%), 98,098 Latinos (37%), 39,- whole-school reform. This approach inte- 355 Whites (15%), and 7,551 Native Ameri- grates supplemental programs with the reg- cans and Asian or Pacific Islanders (3%). Of ular education format. Instead of simply these students, 176,362 (about 67%) were adding new programs, whole-school reform eligible for free lunch, 42 U.S.C.A. § 1751 to fundamentally restructures the core curricu- § 1769(h), and 68,546 participated under fed- lum and methods of instruction to ensure eral Title I, 20 U.S.C.A. § 2701 to § 3386. A that students achieve a constitutionally-man- total of 26,245 students participated in bilin- dated education. Indeed, Commissioner gual or English as Second Language (ESL) Klagholz testified: ‘‘nothing short of dramat- programs. (D–2). ic changes in practice will allow us to achieve Students in these Abbott schools often that goal.’’ failed to attain statewide academic standards. Specifically, the State’s primary objective Achievement levels in 148 of the schools in was to provide a system of ‘‘thorough and twenty districts fell below State standards in efficient’’ public schools which will enable reading, writing, or math for three consecu- students in the SNDs to achieve educational tive years as measured by the eighth grade success. To define the constitutional guar- Early Warning Test (EWT) and the eleventh antee of ‘‘thorough,’’ the State Board of Ed- grade High School Proficiency Test (HSPT). ucation adopted core curriculum content Additionally, eighty-three schools failed to standards in May 1996. (D–12). These meet the standards on one or more of these standards set forth the ‘‘substantive meaning subjects for one year and twenty-nine failed of education’’ by defining the skills and for two consecutive years. The State now knowledge all students must acquire in spe- operates three Abbott districts by takeover cific academic subjects and across disciplines (Newark, Paterson, and Jersey City), see to be successful as citizens and workers in N.J.S.A. 18A:7A–34 to –52; five more con- the marketplace. The seven content areas front State intervention if they do not devel- include language arts and literacy, mathe- op corrective action plans to improve student matics, science, social studies, visual and achievement. (D–2). performing arts, world languages, and com- Most recent available test data provided by prehensive health and physical education. the State showed marked variations in the Students also must be competent in five passing rates for the EWT and HSPT be- cross-subject workplace readiness standards. tween students in the Abbott and I and J Further, these standards serve as ‘‘measures districts. State assessment data for the of educational performance and achieve- March 1996 EWT revealed that 92.3% of ment’’ by directly influencing the State as- students in the I and J districts passed at sessment program which tests students at proficiency levels I or II versus 40.7% of the grades four (Elementary School Proficiency Abbott students. Further, 49.2% of the I and Assessment), eight S 549(Early Warning Test), J students passed at the highest level of and eleven (High School Proficiency Test). proficiency (level I) compared to 6.9% in the Abbott IV, 149 N.J. at 162, 693 A.2d 417. Abbott schools. For the October 1995

The Commissioner’s report to this court S 550HSPT, data showed 91.7% of I and J established that during the 1996–97 school students passed all sections with 94.9% pass- year, children in the Abbott districts repre- ing reading, 96.5% passing math, and 97.4% sented 21.6% of the total student enrollment passing writing. In contrast, only 41.8% of in New Jersey. These 264,070 students at- students in the Abbott districts passed all tended 420 schools in the SNDs including 319 sections of the HSPT with 55.9% passing elementary, 49 middle, and 52 high schools. reading, 58.7% passing math, and 71.3% This enrollment included 119,066 African– passing writing. (D–14).3

3. Education Week very recently commented: nation’s best schools, while its cities struggle New Jersey’s dichotomy of suburban-urban, just to keep their pupils in class. For all the rich-poor is reflected in student achievement drama of the finance rulings and state take- as well. The state’s suburbs boast some of the overs, urban schools remain the state’s sore ABBOTT BY ABBOTT v. BURKE N. J. 485 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued In Abbott IV, the Supreme Court ordered cial and economic disadvantages faced by the State to assume an affirmative role in children in the SNDs created serious obsta- addressing educational deficiencies in the cles to their achievement of a thorough and SNDs. This directive departed from the efficient education. The Court ordered the State’s traditional deference to school dis- State to study the special needs of the twen- tricts. The State now recognizes the pri- ty-eight Abbott districts and research supple- mary importance of its affirmative responsi- mental programs designed to address those bility to act over the interests of the districts’ needs. local autonomy. The State’s new approach To comply, the State contacted urban edu- will focus upon individual schools, not dis- cation specialists at the Temple University tricts. Indeed, Commissioner Klagholz testi- Center for Research in Human Development fied that reform in the Abbott districts must and Education (CRHDE). CRHDE conduct- be accomplished school-by-school because ed a needs assessment survey of the Abbott ‘‘that’s where students are educated, in the districts consisting of narrative questions and data matrices. (P–5). The survey used pro- school. That’s where the money has to go. gram categories described in Wiping Out That’s where the programs have to be pro- Disadvantages (1996), a report actually pre- vided.’’ pared for this litigation by the Education S 551To determine the best strategy to im- Law Center, the advocacy group represent- plement these changes, the State conducted a ing the plaintiffs here. (P–4). CRHDE then study composed of the following elements: 1) analyzed the survey results. The findings a survey of existing supplemental programs showed that most Abbott districts already in the SNDs and an analysis of their effec- provided a variety of supplemental education- tiveness; 2) community meetings in each dis- al programs and school-based social services. trict to solicit input about the specific needs Many districts also incorporated some form of its students; 3) a review of research-based of research-based instructional intervention instructional programs currently used in in the elementary schools. Few SNDs, how- school districts across the country and dis- ever, implemented these models within the cussions with nationally-recognized education context of S 552whole-school reform. Conse- experts; 4) comparisons of actual programs quently, there was little or no connection and consultations with urban district admin- between the supplemental and regular edu- cation programs. Further, most of these istrators; and 5) development of cost esti- districts did not evaluate the impact of these mates. The State reported its findings in A supplemental programs on student achieve- Study of Supplemental Programs and Rec- ment. ommendations for the Abbott Districts, No- The State did not compile statistics on vember 1997. (D–2). individual schools in the SNDs. Because the The Supreme Court’s rulings consistently unique needs of disadvantaged students in have recognized that students in the Abbott the Abbott districts were ‘‘not unknown’’ to districts have much greater needs than those DOE, the State relied on the large body of of students in the I and J districts. Abbott national research documenting these special IV, 149 N.J. at 179, 693 A.2d 417. Repeated- needs. Instead, the State focused its efforts ly, the Court has observed that extreme so- on developing solutions to the complex learn-

thumb. On the 11th grade proficiency test in Such poor performance has bedeviled edu- 1995, about 43 percent of the state’s 9,600 cators, state leaders, and taxpayers for years. poorest students taking the test for the first ‘‘New Jersey spends $12 billion a year on edu- time passed all three sections; in the rest of cation,’’ says Bill Watson, the executive di- the state, the passing rate averaged 40 percent- rector of the John S. Watson Institute for Pub- age points higher. lic Policy in Trenton and a policy adviser to the And on the state’s 1995 8th grade readiness New Jersey Urban Mayors Association. ‘‘For tests, half the students in the poorest districts that kind of money, we should be providing a failed to demonstrate at least minimal compe- better product.’’ tency in math, while their peers in the most [Drew Lindsay, New Jersey: Quarter–Century well-to-do systems showed such skills at rates Quagmire, Education Week, January 8, 1998, of 96 percent or better. at 204–05.] 486 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued ing problems of these students. As Commis- the absence of sufficient research document- sioner Klagholz testified, DOE did not want ing their impact on secondary education. In- to expend its energy on compiling existing stead, the State encouraged middle and high statistics but wanted to develop programs to schools in the SNDs to experiment with re- ‘‘improve the students and meet their needs search-based instructional programs. based on the body of literature that talks For elementary education, however, the about what those needs are and what kinds State recommended whole-school reform in of solutions will meet the needs.’’ every school based upon strong empirical Research at the national level sufficiently support for its likely effectiveness in improv- documented the success of a variety of ing student achievement. The State placed whole-school reform models designed specifi- primary emphasis on the elementary level cally for elementary schools. These schools where it claimed the biggest impact could be typically include kindergarten through fifth made. Commissioner Klagholz insisted in grade but also can extend from preschool his testimony that any programs placed in through eighth grade, known as ‘‘family elementary schools must be research-based, schools.’’ Particularly, the State identified i.e., ‘‘those things for which there was the these research-based programs: Success for greatest empirical support in terms of their All (SFA) developed by Dr. Robert E. Slavin likely effectiveness TTT as opposed to just at Johns Hopkins University; Comer School allowing it to be the result of local consensus Development Program developed by Dr. of things people might feel good about or want.’’ James Comer at Yale University; Adaptive Learning Environments Model (ALEM) de- Therefore, several guiding principles un- veloped by Dr. Margaret Wang at Temple derlie the State’s implementation plan. University; Accelerated Schools developed These are: 1) to help all students in the by Dr. Henry Levin at Stanford University; SNDs achieve the new standards; 2) to and Modern Red Schoolhouse developed by a balance State authority with local school collaboration of several researchers. The initiative; 3) to focus beyond the district State also examined Reading Recovery which level to the individual school; 4) to promote is not whole-school reform but a widely-used research-based programs; 5) to take a com- prehensive approach which integrates sup- instructional program for kindergarten and plemental programs with the regular edu- first grade. cational curriculum; 6) to support school- Although research on whole-school reform based decision-making; and 7) to develop a at the secondary school level is less compel- system of rewards for administrators, ling, the State identified four promising mod- teachers, and parents who help chilSdren554 els: the Project on High Performance Learn- attain the standards and a system of sanc- ing Centers S 553developed by the Carnegie tions when a school fails to make progress Council on Adolescent Development; Com- in any of the core content areas. munities of Authentic Teaching, Learning, and Assessment for all Students (ATLAS); A. Elementary and Family School Reform Coalition of Essential Schools (CES); and The State’s testimony identified SFA and Paideia. These programs appear to succeed its complement, Roots and Wings, as the in raising achievement levels of at-risk stu- most promising of the whole-school reform dents through a combination of such strate- models. This comprehensive approach to gies as: 1) personalized learning; 2) use of school improvement is based on years of teachers specially-trained for these grade research and effective practices to ensure levels; 3) staff training and technical assis- that disadvantaged students in high poverty- tance; 4) parental and community involve- level schools have the best opportunity to be ment; 5) introduction of community social successful. Consequently, the State recom- service providers; and 6) site-based manage- mended its implementation in all elementary ment. However, the State did not require schools within the Abbott districts. Four- implementation of these models because of teen of these schools already use this pro- ABBOTT BY ABBOTT v. BURKE N. J. 487 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued gram. However, a school may select anoth- SFA project staff make presentations at in- er research-based model, especially if one is terested schools which may send delegations already in place, provided the school demon- to visit SFA model sites. Teachers then are strates the effectiveness of its extant or pro- given an opportunity to vote by secret ballot posed whole-school program. As noted, oth- on whether or not to participate. This pro- er possible models include the Comer School cess requires at least 80% of the faculty to Development Program, Accelerated Schools, ‘‘buy in’’ to the program. The ‘‘buy-in’’ pro- ALEM, and the Modern Red Schoolhouse. cess is essential. It ensures SFA is not Researchers at Johns Hopkins University imposed on teachers and helps bind them to developed SFA in 1987 to serve students in the program. high poverty schools who are at risk of aca- The underlying assumption of SFA is that demic failure. The goals of this program are all children can learn to read successfully in twofold: 1) to prevent children from falling the early grades. The program aims to behind and needing remediation; and 2) to make sure every child becomes an enthusias- intervene early and intensively if a student is tic and skilled reader by the end of third experiencing difficulty in achievement. SFA grade.4 In fact, results of SFA show that adheres to these principles by emphasizing children at the end of first grade read about reading, writing, language arts, early child- three months better than children in the hood programs, family support, and tutoring. control or non-SFA schools. By the end of While SFA’s primary focus is on kindergar- fifth grade, they read an average of slightly ten through grade five, this program can be more than one year ahead of their peers in adapted for use in preschool, family schools the non-SFA schools. Further, research (kindergarten through grade eight), or in demonstrates that the positive effects of this traditional middle schools. Pilot programs program last at least into middle school. (P– currently are in operation in seventh and 6). eighth grades in Miami, Albuquerque, and S 556SFA accomplishes these results by first Memphis. Dr. Slavin, Co–Director of Johns emphasizing prevention. Standard program Hopkins University’s Center for Research on components include: 1) full-day kindergarten the Education of Students Placed At Risk, (preschool is not assumed); 2) a school-wide testified that by September 1999, SFA will ninety-minute daily reading period taught by be ready for full implementation in middle all reading-certified teachers; 3) eight-week schools. reading assessment periods; 4) a full-time

S 555The implementation of SFA substantial- facilitator to work with teachers and coordi- ly changes a school’s organization and prac- nate the data from the eight-week assess- tices. It affects instruction, curriculum, as- ments; and 5) increased parental education sessment, early childhood programs, special to support students’ learning at home. education, bilingual education, health and so- SFA also requires intensive early interven- cial services systems, Title I, parental in- tion. This means: 1) 1:1 tutoring by certi- volvement, promotion or retention policies, fied teachers in twenty-minute daily sessions and internal school governance. (P–6). This for first through third grade students with program requires the active participation of serious reading problems; 2) some group all staff members. For these reasons, SFA tutoring for older children who need reading and Roots and Wings require schools to fol- assistance; 3) a family support team typically low an established set of procedures and composed of a social worker or counselor, guidelines. parent liaison, principal, and teachers to fo- Initially, participation in the program must cus on attendance, coordination of outside be voluntary and based on informed choice. social services, parent involvement, and stu-

4. For example, Cramer Elementary School in tions were reduced from 13% to 5%. Memoran- Camden reported that three years after imple- dum from Annetta M. Braxton and Rhoda L. mentation of SFA, the number of students who Chasten, Cramer Elementary School, to Orlando needed remedial instruction after entering sec- Castro, DOE 1 (September 30, 1994). (P–24A). ond grade was cut by 50% and grade one reten- 488 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued dent behavior; 4) continuing professional de- cial education services and referrals by rais- velopment including an initial three full days ing the reading achievement of at-risk stu- of in-service staff training, a week-long pro- dents through 1:1 tutoring, extended reading gram for the principal or facilitator, and ad- periods, and family support assistance. ditional time to train tutors and the family SFA’s philosophy of intervening early and support team, plus two-day follow-up ses- intensively to keep low-achieving students sions; and 5) site-based management. out of the special education system is called ‘‘neverstreaming.’’ Likewise, for bilingual To fully restructure an elementary school, students, SFA materials are available in however, ensuring that every child can read Spanish or can be adapted to effective ESL is not enough. Students also must develop strategies. skills in higher-order thinking, problem solv- Consequently, the State adopted SFA’s ing, and discovery. Consequently, in 1992, zero-based budgeting approach in which all SFA expanded in scope to include Roots and funding streams currently supporting unre- Wings for first through fifth grades. Roots lated programs are combined to create an and Wings uses the program components of effective elementary school from the funding SFA but adds two major elements. mix. These streams include funds ear- First, Math Wings is a cooperative learn- marked for foundation aid, parity, CEIFA ing approach to mathematics instruction programs, Title I, special education, and bi- which balances basic skills, concept building, lingual education. By covering all students and experimentation. Math Wings empha- under its substantive and fiscal umbrella, sizes problem solving and reasoning, not rote SFA reduces the need for separate programs calculations. This approach is consistent or classes. with recommendations made by the National For the Abbott districts, the State recom- Council of Teachers of Mathematics which mended an expanded version of the SFA has provided the prevailing standard of model in all elementary schools. The State’s mathematics education in recent years. program included staff positions for a nurse, guidance counselor, S 558technology coordina- S 557Second, Worldlab is a science and social studies program which strives to make the tor, media services librarian, and security entire elementary curriculum relevant and guards. Further, the State’s model included useful. In Worldlab, students engage in a half-day four-year old preschool program, group investigations and simulations to fully smaller class sizes, more tutors, and addition- al funds for professional development. This involve them in the subjects they are study- comprehensive approach to whole-school re- ing. The science and social studies curricu- form is consistent with the Supreme Court’s lum in Worldlab can be aligned with the New order to provide students in the SNDs with Jersey standards. Music, art, computers, more intensity of instruction and a higher videos and other technology can be used to quality of educational experience. solve problems related to the assigned topics. While music, art, and programs for the gifted The first element in the State’s whole- may be integrated into Worldlab, schools still school reform program required a well- may want art and music teachers to provide planned, high quality half-day preschool for all four-year olds in small classes with a 1:15 fuller programs. teacher-to-student ratio. This recommenda- Together, SFA and Roots and Wings en- tion relied on research showing that an en- compass the entire elementary curriculum riching pre-kindergarten experience reduces including special education, bilingual edu- the chances that disadvantaged children will cation, and ESL. By using all available re- be retained or assigned to special education sources, SFA focuses upon improving the in the early grades. The State did not rec- quality of the whole school rather than creat- ommend full-day preschool classes because ing another program, separate and apart research on the long-term effects of half- from what the balance of the school is doing. verses full-day pre-kindergarten programs For example, SFA reduces the need for spe- allegedly was inconclusive. ABBOTT BY ABBOTT v. BURKE N. J. 489 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued The State also limited its preschool recom- Additionally, the State wanted all Abbott mendation to four-year olds. Again, the schools to implement full-day kindergarten State claimed that research on the benefits of programs as part of whole-school reform, in school for three-year olds was unpersuasive. lieu of the half-day program now provided. Further, the State felt its duty to educate There is a significant body of research sup- children was guided by the constitutional de- porting the benefits of this full-day program mand which the Legislature had implement- in terms of improved student achievement. ed. In New Jersey, the State constitutional- Specifically, research demonstrates that full- ly must provide a public school education for day kindergarten programs generate an im- children between the ages of five and eigh- mediate boost in intelligence, improve basic teen years. N.J. Const. art. VIII, § 4, ¶ 1. skills, decrease student failure rates and be- New Jersey statutory law only mandates at- low grade-level performance, decrease disci- tendance of children between the ages of six pline problems, reduce dropouts, and im- and sixteen. N.J.S.A. 18A:38–25. Thus, prove rates of high school graduation. (D– participation in any early childhood program 2). To be effective, however, the kindergar- must be optional, not mandatory. In recom- ten program as well as preschool must use mending preschool for four-year olds only, the SFA thematically-based curriculum the State also considered the finiteness of which balances child-initiated and teacher- budgets and facilities. Nonetheless, under directed instruction. The State’s annual esti- CEIFA, districts with concentrations of low- mated cost of full-day kindergarten was $4108 per pupil which included annual sala- income pupils greater than 40% can use Ear- ries and benefits for a teacher and aide based ly Childhood Program Aid (ECPA) to reach on I and J district expenses without includ- three-year olds provided they first serve all ing administration, support or facilities. four-year olds seeking enrollment. N.J.S.A. 18A:7F–16. S 560The State’s recommendations and bud- gets for preschool and kindergarten were S The State’s recommendation for at least 559 consistent with the legislative requirements one year of half-day preschool for disadvan- for ECPA. N.J.S.A. 18A:7F–16. ECPA aid taged children is consistent with the 1990 under CEIFA totals approximately $200 mil- National Education Goals adopted by the lion. This aid is distributed to school dis- members of the National Governors’ Associa- tricts with a high percentage of low-income tion. (D–7). The Child Parent Center II pupils for the purpose of establishing pre- study of long-term effects of age variations at school and full-day kindergarten. These pro- entry to preschool ‘‘found no advantage for grams must be in place by the 2001–02 school children who entered at age three compared year. Districts first must serve all four-year with children who entered at age four.’’ (D– olds before they can establish classes for 8). Both Dr. W.S. Barnett who testified for three-year olds. However, if three-year old the plaintiffs and Wiping Out Disadvantages children currently are in such programs, they prepared by the Education Law Center rec- can remain. ommended that children in poverty should be The State’s plan also reduced overall class provided with at least one year of preschool sizes in the primary grades. Studies show before kindergarten. (P–4; P–28). that students from low-income backgrounds The State would require one teacher and benefit from reduced class sizes which in- one aide for each half-day preschool class. crease the frequency of teacher-student in- The estimated budget was $2983 per pupil teractions, reduce distractions, and provide based on average 1996–97 I and J district more opportunity for assessment, feedback, salaries of $51,000 per teacher and $15,200 and reinforcement. Thus, the State pro- per aide, plus benefits. This amount also posed the following reductions: 1) a 1:15 covered expenses for employee benefits, ma- teacher to student ratio for preschool; 2) a terials, supplies, purchased services, and in- 1:21 teacher to student ratio for kindergarten structional equipment. The cost did not in- through third grade; and 3) a 1:23 teacher to clude administration, support or facilities. student ratio for fourth and fifth grades. 490 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued Moreover, the State recommended even third grades who fall behind their peers in smaller classes in reading for students in reading. These tutoring sessions are de- first through third grades. Particularly, re- signed to prevent reading failure and are search shows students with learning deficits tailored to meet each student’s special needs. or socioeconomic disadvantages find it diffi- Additionally, the State’s program allowed for cult to master reading skills in large group small group tutoring of students in the upper settings. Absent significant research to sup- primary grades who still read below grade port further reducing class sizes in all sub- level. jects, the State determined that reduced Initially, students are identified for the class size in reading for the early elementary SFA tutorial program based on informal grades would be most effective in helping reading inventories given by the tutors to students learn to read and attain academic each child. Subsequently, tutoring assign- achievement in all subject areas. Indeed, ments are made at eight-week intervals while SFA assumes a class size of twenty- based on teacher recommendations and more five, Dr. Slavin testified the model operates formal assessments. The results of these on the expectation that classes will be re- eight-week assessments also are used to duced significantly during reading periods by change reading groups, to make adaptations using tutors and certified staff. in the tutorial programs, and to identify stu- Therefore, the State adopted SFA’s ap- dents who need other forms of assistance proach of extending instructional time for such as family interventions or screening for reading to ninety minutes daily or 30% of vision and hearing problems. S 561the instructional day, instead of the na- S The State assumed an average of 20% tional average of fifty-one minutes as report- 562 of students would require tutoring which al- ed in 1994 by the National Commission on lowed for a top rate of 30% for first graders, Time and Learning. During this common 20% for second graders, and 10% for third reading period, all students in first through graders. The State estimated the cost of 1:1 third grades including special education and tutoring was $4208 per pupil using I and J bilingual or ESL students are regrouped ho- district averages for salaries and benefits of mogeneously by reading performance level 3.5 certified tutors per 50 pupils. into smaller classes with a 1:15 teacher-to- student ratio. These classes are smaller be- The State’s plan also required one pro- cause tutors and other certified staff, such as gram facilitator at each elementary school to librarians or art teachers, teach reading dur- oversee the operation of SFA. The facilitator ing this common period. This cross-grade would work with the principal to coordinate grouping for reading increases direct instruc- scheduling, visit classrooms and tutoring ses- tional time by allowing teachers to teach the sions, and help teachers and tutors with indi- whole class without the necessity of dividing vidual problems both academic and behavior- students into multiple reading groups with al. The estimated budget for this position different assignments. The cost of reducing was $51,000 plus benefits using I and J aver- class sizes in first through third grades from ages. twenty-one to fifteen students for ninety min- While the mission of DOE is to educate utes daily was $361 per pupil. This figure students, the State recognized that whole- was based on the I and J district averages school reform must include an appropriate for salaries and benefits of 1.5 additional social services delivery system. Students in certified tutors for every 250 pupils. the SNDs are at a higher risk of school To increase and maintain academic failure because of problems related to pover- achievement, smaller reading classes must be ty including inadequate housing, violence, accompanied by individual tutoring. The crime, substance abuse, teenage pregnancy, State followed the SFA model and proposed and parenthood. Often, these children re- twenty minutes of 1:1 tutoring by certified quire additional intervention above and be- teachers for all students in first through yond the classroom teacher or tutor. ABBOTT BY ABBOTT v. BURKE N. J. 491 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued The State appears to recognize that pin’’ in whole-school reform. To be effective, schools must offer health and social support however, such a program must offer a vari- services for this student population to in- ety of effective instructional strategies for crease the likelihood of academic success. teaching, classroom management, and assess- Indeed, CEIFA itself also recognizes this ment designed to help students achieve the need. N.J.S.A. 18A:7F–18 (Demonstrably higher expectations embodied in the new Effective Program Aid (DEPA) includes core curriculum content standards. The ‘‘health and social service programs’’). State’s estimated cost for a comprehensive These services can be provided through a professional development program as part of variety of models such as New Jersey’s whole-school reform was 2% of the district School–Based Youth Services Program, fami- budget for salaries plus substitute costs for ly resource centers or community schools. six release days for teachers and aides. For Generally, these programs offer a range of elementary schools, this amount is adjusted assistance from screening and assessing to include a full-time facilitator and training needs of students to providing either direct costs for SFA. The projected per-pupil services on-site or referrals for physical and amount was $398. mental health, family support and counseling, S 564Another State goal was to increase the drug and alcohol counseling, parenting edu- effective use of technology in Abbott class- cation, and S 563child care. Studies indicate rooms. By integrating computers into in- these programs reduce retentions, special ed- structional programs, students are ensured ucation placements, absenteeism, and drop- the necessary resources to meet the newer, out rates. more rigorous standards. The proposed cost was $267 per pupil based on a computer-to- In the Abbott elementary and family student ratio of 1:5 with a five-year replace- schools, the Commissioner embraced a social ment schedule, peripherals, software, wiring, services model based on coordination and and a full-time technology coordinator. At referral. In this model, school staff identify no cost, all Abbott schools will be connected health and social services needs of their stu- to a high-speed fiber optic network and dents, then community resources are utilized equipped with an interactive television class- to provide those services. In rejecting the room. Schools also will be charged reduced model of direct on-site service delivery, Dr. access fees. Barbara Anderson, Assistant Commissioner Additionally, these districts will receive for Student Services, DOE, testified the pri- $40 per pupil for purchases of hardware and mary mission of schools is to improve student software as part of Distance Learning Net- achievement and not to become experts in work Aid. This aid will enable districts to social services. While schools should provide ‘‘link up’’ to a statewide infrastructure which coordination of programs, they should defer will facilitate the expansion and enrichment direct care to those individuals who work in of curriculum offerings for every school. human, health, or community services. In- Further, the Educational Technology Train- deed, the basic mission of the State Depart- ing Centers established by DOE in each ment of Human Services (DHS) is to address county of the State will provide professional social services needs. This was not the basic development opportunities. mission of DOE. To provide school-linked To address problems of student disruption services, the State determined each elemen- and violence, the State’s plan required every tary school should include a social worker elementary school in the SNDs to establish a and parent liaison for every 535 students. code of conduct defining acceptable and non- The estimated cost was $158 per pupil. acceptable student behavior along with the The State also recognized the importance consequences resulting from failure to com- of providing teachers and administrators ply. The State also recommended that each with continuing professional development to school employ full-time security personnel improve student performance. Dr. Anderson and use other protective devices such as met- testified this program was the ‘‘critical linch- al detectors to ensure safety. The estimated 492 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued cost of one security guard for every 535 nances using DOE program and fiscal review students at an elementary school was $61 per staff. Second, if there were insufficient pupil. (This court doubts very much that funds to implement whole-school reform, the one security guard per elementary school is State would see if the money was being used sufficient.) in non-productive or counter-productive Another supplemental program identified ways. Third, district budgets would be ex- by the State was school-based decision-mak- amined for inefficiencies in administration. ing. This program builds a sense of local Fourth, the State would determine if funds ownership because it empowers principals, could be reallocated under the authority giv- teachers, parents, and students to play ac- en by CEIFA and this court’s mandate to tive roles in educational planning, governing, assume absolute responsibility for implemen- and budgeting. By transferring significant tation of necessary programs. Finally, if the decision-making authority from local district State found no additional funds available, Commissioner Klagholz vowed to seek sup- offices to the individual schools, S 565research shows that school reform efforts are more plementary approSpriations566 through the effective and students’ academic perfor- normal appropriation process. Therefore, mances improve. Likewise, this program the State did not create a precise formula for increases the involvement of parents in deci- funding Abbott school districts. Again, the sions that affect their children. The pro- State’s goal was to improve student achieve- posed costs for school-based decision-mak- ment by empowering the administrative and ing, budgeting, and parental involvement teaching staffs in local schools with some were funded in the ‘‘base budget.’’ Further, degree of control over their resources. By the State indicated it would train people to adopting school-based budgets, the idea was assemble school-based budgets at no addi- to ensure that necessary funds would flow tional cost. through the districts to the individual schools. To implement reform at the elementary level, the State presented an illustrative Substantively, the illustrative elementary school-based budget based on the individual school budget for a school of 584 students in program component costs mentioned above. pre-kindergarten through grade five con- Commissioner Klagholz testified, however, tained cost estimates for the following pro- that the State does not plan to impose this gram components: half-day preschool for budget on every school or any particular four-year olds; full-day kindergarten; aver- school. Rather, the State’s plan was to eval- age class size of twenty-one students in kin- uate each school to determine existing and dergarten through grade three with fifteen needed resources; ‘‘nothing short of that is students in preschool classes; ninety-minute going to allow us to meet the Court’s expec- daily reading periods for all students in first tations, that we assume an essential, an affir- through third grades in homogeneous classes mative responsibility for making these re- of fifteen; twenty minute daily 1:1 tutoring sults materialize.’’ Therefore, the State did by certified teachers for students in grades not ask the Supreme Court to impose the one through three who are reading below model budget on particular schools but to grade level; 298 minutes of daily overall approve the approach of creating whole- instruction; a full-time facilitator to adminis- school reform through these illustrative ter SFA; one family support specialist or school-based budgets. social worker and one parent liaison to com- The State then assumed that sufficient prise the Family Support Team and make funds existed in the system to finance whole- social services referrals; and substitute cov- school reform. To determine the funding erage for six staff development days for issue, the Commissioner outlined a school- teachers and aides. (D–2, Appendix B). based budgeting process similar to the one The total budget for the illustrative ele- DOE implemented in the Newark takeover mentary school included: 30.5 teachers district. First, the State would examine the ($1,555,500); five teacher tutors ($255,000); practices of a particular school and its fi- one principal ($89,400); seven aides for pre- ABBOTT BY ABBOTT v. BURKE N. J. 493 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued kindergarten and kindergarten ($106,400); amounts, Michael L. Azzara, Assistant Com- three support aides ($45,600); one facilitator missioner for Finance, DOE, testified the ($51,000); one social worker ($51,000); one State could extrapolate the cost for a higher counselor ($51,000); one nurse ($51,000); one or lower student population without qualita- parent liaison ($20,500); one technology coor- tively changing the programs. Revenues to dinator ($51,000); one media services librari- fund this budget are provided under CEIFA, an ($51,000); one security guard ($27,900); federal aid entitlements, and parity aid, then two clerical employees ($55,800); substitutes reduced by the school’s proportional share of ($37,500); and benefits ($454,200). The sub- district office costs and out-of-district tuition total for salaries and benefits was $2,953,800. for severely disabled students. Where 40% (D–2, Appendix B). These costs were based of students were low-income, available reve- on 1996–97 averages of I and J districts but nues were projected at $4,625,416. Where at then inflated forward to 1997–98 using the least 20% of the students were low-income, the amount was $4,272,084. (D–2). consumer price index. To S 567determine sala- ries for aides, the Commissioner relied on S 568To implement this modified SFA model the number used in the CEIFA model. The in all Abbott elementary schools, the Com- Commissioner then applied an 18% benefits missioner proposed a ‘‘careful and conscien- rate; pensions and social security were not tious approach’’ that assured high quality. included in the calculations because the State Under this process, Commissioner Klagholz already pays for them directly. The budget testified SFA could be placed in fifty elemen- assumed all instruction in the seven core tary schools during the first year, 100 the curriculum content areas would occur in the second year, and then 150. Dr. Slavin also regular classroom with only instruction in testified in favor of phased-in implementa- physical education occurring in a specialized tion. The State would select the first fifty setting. schools based on three criteria: 1) where academic achievement was the lowest; 2) The budget also included instructional where there was the greatest commitment to costs for textbooks, materials, and sup- change; and 3) where there was an apparent plies ($105,600). These costs were based readiness to take on the SFA model. on amounts spent in I and J districts. During the first year, the following SFA Other budget items were: technology and components would be implemented in each of distance learning ($83,100); equipment the chosen elementary schools: reading; ($30,700); curriculum consultants ($11,600); writing; language arts; preschool; full-day extracurricular activities ($11,200); profes- kindergarten; tutoring; the extended read- sional development ($135,600); and sum- ing periods; and family support. The State mer curriculum development ($4300). Ad- would implement the math component of ditionally, allocations for administration Roots and Wings during the second year and included: facilities operation and mainte- Worldlab during the third year. nance ($640,100); small facilities projects ($58,800); supplies ($42,300); equipment B. Middle and High School Reform ($19,200); purchased services ($68,200); The State’s ultimate goal is to implement excess cost of food services ($47,300); supplemental programs within the context of and miscellaneous ($9000). The costs of whole-school reform in the Abbott middle and operations, maintenance, and food services high schools. The State, however, did not were based on higher Abbott district recommend this approach for immediate im- numbers because they reflected actual plementation because the research on, and conditions in the SNDs. (D–2, Appendix level of confidence in, existing secondary B). school models was not compelling. No par- The total school-based budget for the ticular whole-school reform model was vali- State’s illustrative elementary school was dated empirically as effective in improving $4,220,800. (D–2, Appendix B). By break- student achievement. Instead, the State’s ing this number down into per-pupil report urged secondary schools immediately 494 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued to adopt supplemental programs and to ex- instructional support. Further, alternative periment, pilot, and evaluate secondary school programs increase attendance rates, school models of whole-school reform such as improve basic skills and scores on standard- the Project on High Performance Learning ized tests, decrease dropout rates, reduce Centers, ATLAS, CES, and Paideai. (D–2). disruptive behavior, and increase college as- The disadvantages of students in the Ab- pirations. Such programs include work- study opportunities, community service in- bott secondary schools are complex and per- volvement, life-skills training, job search vasive. These students are at much greater training, vocational education, and personal risk of school failure and dropout than their growth counseling such as anger manage- peers in the wealthier districts. They often ment, assertiveness training, and social skills. must deal with serious problems including (D–2). substance abuse, disruptive behavior, disaf- S 570The State’s plan required each Abbott fection, adolescent S 569pregnancy, and parent- hood, without adequate support at home. district to establish an alternative education (D–2). For these students, the Commission- program in one of its middle and high schools. The cost for this supplemental pro- er recommended a range of special programs gram was estimated at $275,000 for each including remedial instruction at a reduced alternative school. (D–2). class size of fifteen for students requiring additional assistance, alternative schools, The State also proposed that each middle dropout prevention, school-to-work and col- and high school in the SNDs would have a lege transition programs, community services dropout prevention counselor to serve a dual coordinators, and social services. role: 1) to work with students in the alterna- tive education program; and 2) to ensure At the middle schools, the State’s plan that adequate dropout prevention programs required 20% of the student population to exist in middle and high schools. The State’s receive ninety minutes daily of basic skills illustrative school-based budgets estimated remedial instruction at a reduced class size of the cost to be $64,500 at the middle school fifteen; at high schools, 20% of the popula- level and $69,400 at the high school level. tion would receive two periods of remedial These salaries were based on I and J aver- instruction each day in classes of fifteen. ages plus 18% benefits. (D–5A). Otherwise, class sizes were twenty-three at School-to-work or college transition pro- all middle school grade levels and twenty- grams also were considered supplemental be- four at all high school grade levels. While cause they responded to unique needs of the State did not specify how many addition- students in the SNDs. Students with socio- al teachers would be necessary for the sup- economic and academic disadvantages often plemental remediation program, Dr. Marga- lack the basic skills to support themselves ret E. Goertz, a plaintiffs’ expert, testified responsibly. Additionally, many of these this would require an extra 1.5 teachers per children do not have access to information on model middle school of 675 students and 2.5 college opportunities or meaningful employ- teachers per model high school of 900 stu- ment which typically is found in the wealthier dents. Dr. Goertz estimated the cost at an districts. For these reasons, the Commis- additional $143 per pupil, and $193 per pu- sioner proposed to integrate workplace readi- pil,2 respectively. ness skills and college transitional programs To combat the dropout rate and improve into the secondary school curriculum. Re- student achievement, Commissioner Klagholz search indicates that such programs lead to proposed to provide secondary students in increased school attendance, reduced dropout each Abbott district with an alternative rates, higher motivation to learn, and greater school program. Research indicates that likelihood of pursuing further education. such programs increase academic success (D–2). with their smaller class sizes and individual- Specifically, these school-to-work and col- ized focus allowing for greater levels of coun- lege transition programs would contain the seling, parental or family involvement, and following elements: career majors that com- ABBOTT BY ABBOTT v. BURKE N. J. 495 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued bine academic and vocational instruction; counselor to identify the kinds of assistance a work-based learning experiences; connecting child or family may need. These coordina- activities to match students with employers; tors would then either bring into the school, and career development to help students be- or provide access to, local community agen- come aware of their interests and strengths. cies better-suited to address those needs.

These opportunities would be provided S 572The Commissioner also recognized that through a combination of cooperative edu- disruptive behavior or violence directly im- cation programs, vocational technical pro- pacted the ability of students to learn. Con- grams, school based enterprises, career sequently, the State proposed that all Abbott S 571academies, and youth apprenticeship pro- schools employ full-time security personnel, grams. The Commissioner recommended use protective devices such as metal detec- that each Abbott district implement all of tors, and establish codes of conduct. The these programs in the high schools using cost of one security guard for every 225 resources presumably present in the regular students in the middle and high schools was budget. Dr. Anderson testified, however, estimated at $146 per pupil. that schools must start preparing these stu- Further, the Commissioner advocated in- dents with the skills necessary for work or creased use of instructional technology. college transitions as early as kindergarten. This supplemental program acknowledged Other supplemental programs designed to that students in the SNDs have limited or improve student achievement were recom- no access to computers in the home. To mended for both elementary and secondary function in an increasingly technological soci- schools. These programs included health ety, however, these children must develop and social services, additional security, in- computer skills. Towards this end, the structional technology, professional develop- Commissioner required the Abbott schools to ment, school-based decision-making, and pa- integrate technology into the instructional rental involvement. The Commissioner program at the classroom level. As dis- proposed to implement them in the middle cussed previously in the elementary edu- and high schools with some modifications cation section of this opinion, this technology includes computers, hardware, software, in- for the special needs of older students. teractive classrooms, educational program- Consistent with his recommendation for ming, and a ‘‘link up’’ to the statewide Dis- elementary schools, Commissioner Klagholz tance Learning Network. wanted secondary schools to implement an For secondary schools, the Commissioner appropriate health and social services deliv- recommended a ratio of one computer for ery system. At middle and high schools, the every five students with a five-year replace- problems of disadvantaged children often are ment schedule, peripherals, software, and very complicated. Treatment requires a mix wiring. However, unlike elementary schools, of services ranging from primary health care, the State’s budget called for two media-tech- mental health and family counseling, health nology coordinators in both the middle and education, drug and alcohol abuse counseling, high schools, each at a cost of $54,700 and recreation, parent education, employment as- $58,800 respectively. (D–5A). At no cost to sistance or even child care for student-par- the school, the State will connect each school ents. To avoid what Dr. Anderson charac- to a high-speed fiber optic network, provide terized as ‘‘mission creep,’’ the State adopted an interactive television classroom, and re- a school-linked services model based upon duce access fees. Additionally, schools will coordination and referral. Under this ap- receive $40 per pupil in Distance Learning proach, the State recommended inclusion of a Network Aid for purchases of hardware and full-time community services coordinator at a software. They also will be given profes- cost of $64,500 for each middle school and sional development opportunities through $69,400 for each high school. These coordi- Educational Technology Training Centers es- nators would work closely with school re- tablished by DOE in each of the State’s sources including the nurse or guidance counties. The overall cost estimated for this 496 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued supplemental program was $252 per middle supplies ($130,800); technology and distance school pupil and $234 per high school pupil. learning ($103,400); other equipment ($42,- (D–2, Appendix A). 800); curriculum S 574consultants ($14,400); professional development ($63,200); extra- S 573The State’s plan also provided all staff in Abbott schools with continuous profession- curricular activities ($90,800); and summer al development. The purpose was to im- curriculum development ($4300). Other non- prove the performance of teachers, adminis- instructional costs were facilities operation trators, and support staff with continuous and maintenance ($891,800); small facilities training focusing on subject matter knowl- projects ($82,000); supplies ($52,600); equip- edge and effective teaching practices. For ment ($23,900); purchased services ($84,900); secondary schools, the cost of professional food services ($63,800); and miscellaneous development was 2% of budgeted average ($11,200). The total school-based budget for salaries in the I and J Districts plus substi- this model Abbott middle school was $5,500,- tute costs for six release-days for teachers 900. (D–5A). and aides. Likewise, the State’s illustrative school- Finally, the Commissioner recommended based budget for the ‘‘typical’’ high school school-based decision-making including included grades nine through twelve with: school-based budgeting and parental involve- student enrollment of 900 with 1.5% served out-of-district for severe learning disabilities; ment in the secondary schools. This supple- class size of twenty-four at all grade levels, mental program was considered an essential two periods daily of basic skills remedial component of the State’s plan because it instruction for 20% of the population at re- provided meaningful school-level involvement duced class size of fifteen; and two periods of and assured funds would reach the class- bilingual instruction daily for 12% of the room. For secondary schools, the costs were population. (D–2). Staff was composed of: proposed to be funded in the base budget for 53.5 teachers ($3,145,800); one principal and regular education. two vice-principals ($279,900); four supervi- To summarize, the State’s 1997 study of sors of instruction ($325,600); four guidance supplemental programs described a ‘‘typical’’ counselors ($235,200); one dropout preven- middle school of grades six through eight as tion counselor ($58,800); one community ser- follows: an enrollment of 675 students with vices coordinator ($58,800); two nurses 1.5% assumed to have severe learning dis- ($117,600); a part-time attendance officer abilities and served in out-of-district place- ($14,000); one media specialist or librarian ment; class size of twenty-three in all ($58,800); one technology coordinator ($58,- grades; ninety minutes daily of basic skills 800); nine clerical employees ($251,100); one remedial instruction for 20% of the popula- aide ($15,200); four security guards ($111,- tion at a reduced class size of fifteen; and 600); substitutes ($25,700); plus benefits ninety minutes daily of bilingual instruction ($690,900). (D–5A). for 12% of the population. (D–2). The staff The high school budget also contained allo- would consist of: one principal and one vice- cations for instructional costs. These includ- principal ($177,800); 46.5 teachers ($2,543,- ed: curriculum materials and supplies ($174,- 600); two guidance counselors ($109,400); 200); technology and distance learning one nurse ($54,700); one media specialist or ($137,900); other equipment ($60,100); cur- librarian ($54,700); one technology coordina- riculum consultants ($19,200); extra curricu- tor ($54,700); one community services coordi- lar activities ($384,300); professional devel- nator ($54,700); one dropout prevention opment ($88,700); and summer curriculum counselor ($54,700); four clerical employees development ($4300). Other nonsalary costs ($111,600); one aide ($15,200); substitutes were: facilities operation and maintenance ($22,400); three security guards ($83,700); ($1,252,800); small facilities projects ($115,- plus benefits ($503,800). (D–5A). 100); supplies ($70,200); equipment ($31,- In addition to salaries and benefits, the 800); purchased services ($113,200); food budget consisted of curriculum materials and services ($85,100) and miscellaneous ($15,- ABBOTT BY ABBOTT v. BURKE N. J. 497 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued 000). The total illustrative school-based high tions necessary to establish whole-school re- school budget was $7,999,700. (D–5A). form.

S 575The State then calculated existing reve- S 576Likewise, the State’s plan required Ab- nue sources at the secondary school level. bott districts to develop systems of accounta- These sources included all aid programs un- bility. First, they must develop three-to-five der CEIFA, federal aid entitlements, and year schedules for phasing in whole-school parity funds. Reductions were made for reform. These schedules must identify each school’s proportional share of district which schools would be affected each year. office costs, out-of-district tuition for stu- Second, districts must establish baseline data dents with severe learning disabilities, and and identify benchmarks to ensure they costs for alternative schools. For middle achieve the core curriculum content stan- schools, the total available revenue for the dards. school-based budget was $6,161,267 where V 40% of the students were low-income and $6,076,892 where at least 20% of the students THE PLAINTIFFS’ PRESENTATION were low-income. Likewise, the State esti- ON SUPPLEMENTAL mated the total available revenue at a high PROGRAMS school with 40% low-income students was Plaintiffs alleged the Commissioner’s study $9,063,519; for high schools with at least 20% did not meet the specific requirements of the low-income students, the amount was $8,951,- Supreme Court’s order. They argued the 019. (D–5A.) Court drew a sharp distinction between regu- The State presented the above figures for lar and supplemental programs. For regular education, the Court directed the State to illustrative purposes only. As reiterated provide comparable instructional programs throughout the State’s testimony, actual bud- between the property-rich I and J districts gets will be calculated school-by-school to and the property-poor, urban Abbott dis- account for individual variations and needs. tricts, i.e., horizontal equity. The Court, Throughout its presentation, the State en- then, ordered the State to identify education- dorsed the continuation of so-called ‘‘parity’’ al programs especially designed to address funding to the Abbott districts to eliminate the special needs of Abbott students, i.e., fiscal inequities and continuing deficits and to vertical equity. Although the wealthier adequately fund the anticipated school-based school districts did not require these supple- budgets. Any excess in the budget would mental or extra programs, they were urged remain in the school. by plaintiffs as fundamental prerequisites to In Abbott IV, the Supreme Court not only achieving a ‘‘thorough and efficient’’ edu- ordered the State to provide costs of edu- cation in the SNDs. cational programs but to ensure, through the Supplemental programs provide unique Commissioner, that such funding was spent services to disadvantaged children which are effectively and efficiently. 149 N.J. at 224, ‘‘over and above’’ regular education. These 693 A.2d 417. To comply, the State reorga- programs attempt to wipe-out learning disad- nized DOE and established two new offices vantages and improve academic achievement to monitor the activities of the Abbott dis- levels. Indeed, such initiatives are deemed tricts: the Office of Program Review and essential if students in the SNDs are to take Improvement (approximate staff of fifty) and full advantage of the regular education pro- the Office of Fiscal Review and Improvement grams funded at parity with the I and J (approximate staff of thirty). DOE also cre- districts. ated the position of Special Assistant to the To determine which supplemental pro- Commissioner for School Improvement to co- grams were necessary, the Court in Abbott ordinate department-wide participation in the IV directed the State, through the Commis- process. Further, DOE’s new composition sioner, to study the special educational needs created teams to review budgets and pro- of students in the SNDs. S 577The State, how- grams of each district to identify realloca- ever, did not perform a comprehensive needs 498 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued assessment, claiming the problems of disad- cation. Instead, plaintiffs viewed supplemen- vantaged students already were well-docu- tal programs as necessarily an additional mented at both the local and national levels. cost. Plaintiffs alleged the State failed to comply Plaintiffs proposed an alternative approach with the Court’s order to identify those edu- to urban education based on assessment, re- cational programs or services designed spe- search, and practice. This approach com- cifically to help students in Abbott districts. bined high quality regular education with As Dr. Gary Natriello, a plaintiffs’ expert, research-based supplemental programs de- testified, ‘‘the status of being disadvantaged signed to address the specific needs of chil- usually comes about because of a whole vari- dren in the SNDs. The goal was to develop ety of things. But they appear in different family and community schools in the Abbott combinations, and they appear in different districts which would improve achievement intensities.’’ levels of disadvantaged students and make Consequently, plaintiffs challenged the significant differences in their education. State’s plan to adopt whole-school reform for Plaintiffs’ proposal included the following two primary reasons. First, the State failed components: full-day preschool for three and to study the actual needs of these students. four-year olds; full-day kindergarten for five-year olds; class size reductions to an Rather, the State relied on illustrative mod- average of fifteen or even below in preschool els which, like CEIFA, gave no recognition through third grade for all subject areas; to the diversity of risk factors at play be- after-school programs for grades one tween and within Abbott districts. Plaintiffs through twelve; summer program for grades claimed these abstract models were incapable one through twelve; school-based health and of delivering an equal educational opportuni- social services; student nutrition; alternative ty to children in the poorer urban districts education programs; school-to-work and col- because they did not target remedies with lege transition programs; security; instruc- the greatest chance of addressing actual tional technology; parent education and in- needs. Further, without initial needs assess- volvement; and programs or strategies to ment, there would be no way for the State to improve standards-based regular education. measure future accomplishments. Plaintiffs identified a full-day early child- Second, plaintiffs objected because the hood program for three, four, and five-year State proposed to fund whole-school reform olds as an essential element of their ‘‘new, through a combination of existing funding urban schools.’’ This program would be of- streams without adding new money. Partic- fered year-round and would include extend- ularly, the State plan would divert regular ed-day or wrap-around child care for parents education funds including the additional $246 who need to drop-off their children at 7 a.m. million directed to the twenty-six eligible Ab- and return for them at 6 p.m. After examin- bott districts for the 1997–98 school year ing the literature on short and long-term under court order to achieve spending parity effects of similar programs, plaintiffs urged with I and J districts. Plaintiffs argued the that early, intensive intervention in the lives regular education funding issue already was of Abbott children was necessary to build a settled and could be reconsidered only by the solid foundation for their future academic Supreme Court. (P–73). Moreover, plain- success. (P–26). tiffs relied on the Supreme Court’s declara- Plaintiffs’ proposal for more intensive early tion that supplemental programs represented childhood education seeks to increase school ‘‘an educational cost not included within the readiness of children in the Abbott districts. amounts expended for regular education.’’ This recommendation is consistent with Ad- Abbott IV, 149 N.J. at 180, 693 A.2d 417 ministrative Law Judge Lefelt’s conclusion in (quoting Abbott III, 136 N.J. at 453–54, 643 1988 that

A.2d 575). Thus, plaintiffs urged, the State S 579[m]any poor children start school with could not pay for supplemental S 578programs an approximately two-year disadvantage using parity funds allocated for regular edu- compared to many suburban youngsters. ABBOTT BY ABBOTT v. BURKE N. J. 499 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued This two-year disadvantage often increases ers taught a class of twelve students in the when urban students move through the morning; they spent their afternoons prepar- educational system without receiving spe- ing lesson plans and making ninety-minute cial attention. Poor children often do not weekly home visits. Researchers studied the receive the same verbal stimulation as chil- progress of these students until they reached dren in middle class homes. They are not age twenty-seven. Initially, the Perry exposed to things like books and blocks, S 580children ranked at the fifth percentile in essential for reading readiness. They are terms of school-readiness skills. However, often from single-parent households, head- Dr. Barnett testified that early intervention ed by a mother who is poorly educated. made a substantial difference. The study They are exposed to more stress, from revealed ‘‘strong effects’’ on school achieve- street crime, overcrowding and financial ment, number of children in special edu- problemsTTTT Nutrition and health care cation, high school graduation rates, adult are also likely to be deficient. economic success, and involvement in delin- [Abbott v. Burke, No. EDU 5581–88 at quency and crime. (P–29). The high school 28 (OAL 1988) (ALJ Decision) (quoted in graduation rate increased from one-half to substance in Abbott IV, 149 N.J. at 179, two-thirds. 693 A.2d 417).] The Abecedarian study also demonstrated the importance of early childhood education Dr. Barnett also testified for plaintiffs for low-income, mostly African–Americans about the ‘‘very large gap’’ in school readi- from North Carolina. (P–29). This long- ness between children in wealthier and poor- term study placed children from approxi- er districts. He noted that disadvantaged mately four months of age to five years in students often enter school lacking essential full-day, year-round child care with an edu- language skills and vocabularies which are cational focus. According to Dr. Barnett, prerequisites for literacy. Dr. Barnett then results compiled when these children were observed that high-quality preschool pro- age fifteen revealed much larger effects of grams could provide these poor children with preschool than the Perry study probably due the necessary resources to close the gap. to the earlier intervention and greater inten- Although the State did not study differences sity of the experience. While the Perry Pre- in learning readiness, Dr. Anderson acknowl- school Program yielded gains in achievement edged the importance of a preschool experi- and social behaviors, the Abecedarian study ence for children from low-income families. also produced permanent gains in IQ of In her testimony, she referred to research about one-third of a standard deviation, or showing these students often lack access to the equivalent of five IQ points. books, enrichment materials, and medical, Finally, plaintiffs argued their proposal dental, and social services which facilitate would yield significant educational cost-sav- learning. Dr. Slavin also stated: ‘‘a middle- ings over time. A cost-benefit analysis of the class child is much more likely to have an results from the Perry Preschool Program enriched experience as a three- and four- revealed economic benefits of preschool edu- year-old that would be a better preparation cation which were quite large relative to its for success in school than would be what a costs. Benefits ranged from reduced child poor child would likely experience.’’ care costs, reduced costs of a public school To support their recommendation for a education through grade twelve because of longer and more intensive early childhood lower retention rates from failures, reduced program than proposed by the State, plain- costs of adult education, more college gradu- tiffs relied on two longitudinal studies. The ates, increased earnings and benefits, de- Perry Preschool Program, begun in the creased costs of crime, and reduction in wel- 1960s, randomly assigned African–American, fare dependency. (P–28). low-income children in southeastern Michi- Dr. Barnett’s cost-benefit analysis of thir- gan to intensive, half-day preschool at ages ty-eight early childhood programs supported three and four. (P–28). Two certified teach- these findings. W. Steven Barnett, Long- 500 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued term Cognitive and Academic Effects of Ear- ers; extensive professional development and ly Childhood Education on Children in Pov- supervision; and the creation of preschool erty, Preventive Medicine (publication due councils in each district to foster collabora- March 1998). (P–28). This study examined tion between different providers of services, such outScomes581 as IQ, achievement, and design school-level proSgrams,582 coordinate academic success as measured by special ed- resources, and oversee implementation and ucation placement, grade retention, and high evaluation of educational programs for chil- school graduation. In addition to improved dren under age six. cognitive development and academic success, Before implementing this supplemental Dr. Barnett found the economic return on program for early childhood education, how- preschool education exceeded ‘‘the average ever, plaintiffs asserted there must be a rate of return on investments in the stock needs assessment to justify its specific design market over the last 30 years.’’ (P–28). He for the Abbott districts. Dr. Barnett testified then concluded every child living in poverty that such a study is essential because needs in the United States should be provided with of children ‘‘vary dramatically from commu- ‘‘at least one year’’ of quality education in a nity to community.’’ The State, plaintiffs ‘‘part-day preschool education program or a claimed, presented no evidence of actual full-day developmental child care program needs of children in Abbott districts for early rich in cognitive interactions between teach- childhood programs. Dr. Anderson testified ers and children.’’ (P–28). However, in an- she could not determine the current universe other paper, Dr. Barnett observed that stud- of four-year olds needing preschool or the ies on the effects of age of entry failed to find ability of the schools to accommodate all of any significant advantage for children who them. She also could not estimate the num- entered at age three, rather than age four. ber of preschoolers in Abbott districts who currently attend private, community-based W. Steven Barnett, Long–Term Effects of programs. Therefore, plaintiffs contended Early Childhood Programs on Cognitive and the State must survey each of the twenty- School Outcomes, The Future of Children, eight SNDs to determine: 1) the number of Winter 1995, at 42.(D–8). See also Ellen C. preschool children; 2) the number of pre- Frede, The Role of Program Quality in Pro- school children currently enrolled in school ducing Early Childhood Program Benefits, and community-based programs; 3) the qual- The Future of Children, Winter 1995, at 122– ity, costs, and funding of those programs; 4) 23 (finding that variations in duration and the availability of child care, health, and oth- intensity across programs are not associated er social services for preschoolers; and 5) with striking differences in program effects). any barriers to collaboration between Abbott (D–10). districts, Head Start, and community-based Nonetheless, plaintiffs recommended an providers. early childhood program with more duration Currently, every school district in the and intensity. While research on this issue State receives regular education funding for may be inconclusive, plaintiffs agreed with a half-day kindergarten program at a mini- Dr. Slavin, the State’s expert, that children mum of four hours. CEIFA allegedly pro- who attend full-day preschools beginning at vides $200 million in early childhood program age three were more likely to have success in aid (ECPA) ‘‘to all school districts with high school. Consequently, plaintiffs’ supplemen- concentrations of low-income pupils.’’ tal program for three-, four-, and five-year N.J.S.A. 18A:7F–16. Abbott districts there- olds included the following components: full- fore can use ECPA to fund full-day kinder- day, year-round school; classrooms of fifteen garten and preschool programs. These students; one certified early childhood edu- funds co-exist with other public programs for cation teacher and one trained aide per class; disadvantaged children such as federal Head extended day care; health and social ser- Start. Until recently, New Jersey also pro- vices; collaborations with Head Start and vided funds to urban districts to implement other community-based agencies and provid- Good Start, a program developed by DHS in ABBOTT BY ABBOTT v. BURKE N. J. 501 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued conjunction with DOE to provide educational, an additional $20.4 million. (P–67). There- health, and social services to children ages fore, Dr. Goertz’s total estimated economic three and four. Good Start has been discon- cost of plaintiffs’ recommended early tinued. childShood584 program for three, four, and five-year olds was $728 million less of course, S As of October 15, 1996 there were 266,- 583 the experts’ estimated long-term benefits 163 students enrolled in the Abbott districts generated by these programs, which could including 1848 in half-day preschool and 2322 exceed $100,000 per child, potentially millions in full-day preschool. Enrollment figures of dollars, a consideration when weighing also showed there were 7283 students in half- social costs. This is a $528 million net ex- day kindergarten and 15,461 students in full- pense, allowing for the $200 million ECPA day kindergarten. (D–15). funds already committed by CEIFA. This Plaintiffs estimated the cost of one year of probably could be reduced further by Head full-day preschool would equal the average Start and other government preschool money amount currently spent by the I and J dis- already available. tricts for an elementary school pupil, $7900. Plaintiffs also proposed to reduce class Plaintiffs said this figure must then be in- sizes in all subjects to an average of fifteen creased by the amount necessary to reduce students for preschool, kindergarten, and class size to fifteen, include wrap-around grades one through three. This recommen- child care, extend the school year to fifty dation responded to evidence showing that weeks, and provide nutrition, health and so- minority, inner-city children benefitted aca- cial services. Dr. Barnett estimated costs demically and socially from more direct and between $9,000 and $14,000 per pupil. concentrated instructional time. Particular- ly, smaller classes allowed teachers to use Assuming the number of three and four- more flexible teaching strategies, gave them year old students each would approximate more opportunities to respond to the special the 22,744 kindergarten students enrolled in needs of their students, and reduced disci- Abbott districts as of October 15, 1996, Dr. pline problems. Goertz multiplied 44,000 total students by the figure of $12,000 per pupil. (D–15). She An experiment conducted in Tennessee derived an estimated cost of $528 million for documented the importance of reduced class comprehensive full-time preschool for three sizes in the early grades, especially for disad- and four-year olds. (P–67). This amount vantaged, nonwhite students. This study, referred to as Project Star (Student Teacher could be reduced by using existing communi- Achievement Ratio), began in 1985 and in- ty facilities for child care, Head Start, and volved seventy-nine schools across Tennessee local health and social services programs de- including urban, suburban, and rural. Over pending upon the findings of the needs as- 10,000 students in kindergarten through sessment. This total did not include costs third grade were assigned at random to a for such program components as preschool small class (thirteen to seventeen pupils), a councils, statewide certification for teachers regular class (twenty-two to twenty-six pu- and administrators, statewide accreditation pils), or a regular class with a full-time teach- for early childhood programs, or continuing er’s aide. Teachers also were assigned at training of teachers and aides. random to the class groups and given no Dr. Goertz then calculated the cost of full- special instructions. After two years, the time kindergarten. First, she multiplied 22,- effect of smaller class size on the achieve- 744 students times the same per-pupil cost of ment of African–American children was dou- $7900 and arrived at $179.7 million. Second, ble that of white children. she estimated that 433 additional teachers After four years, results showed students would have to be hired if class sizes were in smaller classes did significantly better on reduced to fifteen students. Using an aver- achievement tests than their peers in the age starting salary of $40,000 plus 18% bene- comparison classrooms. (P–4). Other pri- fits, she determined the program would cost mary findings included: 1) the benefits were 502 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued the same for boys and girls; and 2) in each demic year and perhaps as large as eight to

S 585grade, there was a greater small-class ad- ten months for minority students. vantage for minorities or students attending More research would be helpful on the inner-city schools. (P–33). overall benefits of reduced class size com- In the second phase of the Tennessee pro- pared to cost. Indeed, the expense of addi- ject, the Lasting Benefits Study, researchers tional teachers and classrooms severely lim- followed these students after they returned its the implementation of smaller classes. to regular classes in fourth grade. The Even Dr. Barnett admitted on cross-exami- fourth and fifth graders who had been in the nation he could not state with certainty that smaller classes scored higher on achievement gains produced from the proposed reductions tests than their counterparts. In fact, the would be sufficiently large when compared to small-class advantage continued through at the costs. He said methodological research least seventh grade. (P–33). Further, stu- difficulties hinder any meaningful cost com- dents who had been in small classes from parisons between general reductions in class kindergarten through third grade did signifi- size and comprehensive approaches used by cantly better in behavior ratings than stu- other instructional strategies which reduce dents in regular-size classes. Small-class class size, such as SFA. participation produced long-term social bene- Plaintiffs recognized any class-size reduc- fits by increasing student initiative-taking tion program must be implemented carefully and decreasing non-participatory behaviors to ensure the special needs of Abbott stu- (disruptive, inattentive or withdrawn). dents were met in the most cost-effective manner. First, there must be sufficient While the Tennessee experiment showed numbers of qualified teachers, aides, and ma- small classes were more effective academical- terials. Second, there must be adequate ly than larger classes in the elementary classroom space. To determine actual re- grades, questions still remain about long- quirements, the State must perform a needs term consequences (after eighth grade). Un- assessment including: 1) average class sizes fortunately, research on the effects of small in the I and J districts for kindergarten classes in the upper grades is ‘‘fragmented through third grade to identify the class size and even contradictory.’’ Jeremy D. Finn, to be supported by regular education fund- Class Size and Students At Risk: What is ing; 2) the difference between the I and J Known? What Next?, prepared for The Na- average class size and fifteen students using tional Institute on the Education of At–Risk actual enrollments in the Abbott districts to Students, Office of Educational Research and establish the number of additional classrooms Improvement, U.S. Department of Edu- and teachers; 3) the number of students in cation, December 1996, at 30. (P–34). each grade; 4) the availability of existing and Nonetheless, certain general observations temporary classroom space in the Abbott can be made on the average effects of class schools; and 5) the difference between addi- sizes. First, the ‘‘effect size’’ at the end of tional classrooms needed and availability of kindergarten amounted to about one-month; space. this means children in small kindergarten Final program costs would depend upon classes tended to finish the year with a one- the results of the needs assessment. Plain- month advantage in terms of academic per- tiffs, however, offered a general estimate formance. Second, the ‘‘effect size’’ in- based on the current enrollment of 70,689 creased to two months in each subject area Abbott students in grades one through three. at the end of first grade and remained con- (D–15). Assuming the current, average class stant through sixth grade. Third, Dr. Finn size is twenty-one, Dr. Goertz determined said that ‘‘effect sizes’’ increased noticeably that an additional 1346 teachers would be at the end of seventh, eighth, and ninth required if class size was reduced to fifteen grades. In Dr. Finn’s opinion, the average S 587students. Next, she multiplied 1346 by an advantage in these upper grades could be as estimated salary of $40,000 (anticipated large as S 586six months of a ten-month aca- starting salary for a new teacher) plus 18% ABBOTT BY ABBOTT v. BURKE N. J. 503 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued benefits to arrive at a total of about $63.5 disadvantaged students. Specifically, these million for teachers excluding facilities or students tend to lack the family resources to other supporting costs. Funding for class engage in learning beyond the school day. size reductions could be distributed to the Further, their communities cannot provide Abbott districts through Demonstrably Effec- them with the range of extracurricular expe- tive Program Aid (DEPA). N.J.S.A. riences available in wealthier I and J dis- 18A:7F–18 (allegedly providing about $100 tricts. Consequently, poorer urban children million in the 1997–98 school year to districts often spend their after-school hours engaged with greater than 20% low-income students in nonproductive and sometimes undesirable for instructional, school governance, and behaviors. Thus, by using existing facilities health and social services programs). and coordinating after-school classes with the Plaintiffs’ plan also stressed the impor- regular education curriculum, extended-day tance of extending the school day for programs provide students with the super- students in the Abbott districts. This vised, direct support they need to attain the supplemental program gives disadvantaged core curriculum content standards. students a structured alternative to unsu- The State’s proposal did not recognize ex- pervised after-school hours. In fact, a tended-day programs as necessary interven- recent survey of six SNDs revealed all tions. While testifying for the State, Dr. had implemented after-school programs Slavin admitted their potential effectiveness which provided a mix of curricular and but noted ‘‘simply making the day longer in extracurricular activities. William A. itself has not been shown to have much of an Firestone, Margaret E. Goertz, and Gary impact on achievement.’’ Nonetheless, Dr. Natriello, From Cashbox to Classroom: Slavin later said on cross-examination that a The Struggle for Fiscal Reform and Edu- study in Memphis showed that children in cational Change in New Jersey 134–35 SFA schools actually received an additional (Teachers College Press 1997). (P–36). benefit from an extended-day program. This For children whose families are not sup- tends to support plaintiffs’ position that af- portive academically, these extended-day ter-school programs which are coordinated programs provide homework assistance, with the regular education curriculum can tutoring in specific subjects, and more ac- prove effective in improving student achieve- cess to educational resources such as ment. computers and libraries. In addition to Plaintiffs recommended extended-day pro- extending the instructional day, these pro- grams for all elementary, middle, and high grams offer recreational opportunities, so- schools in the Abbott districts. These pro- cial support services, health services, and grams contained both instructional and re- community outreach programs including creational components. To determine actual parent centers. Some schools even open costs, plaintiffs contended the State first their doors earlier in the morning to es- must complete the Court-ordered study of tablish free breakfast programs for chil- actual needs in each district so that appropri- dren who qualify because of low family ate after-school programs could be designed. income. While these extended-day pro- However, plaintiffs suggested a typical pro- grams are designed to meet the needs of gram would consist of three extra hours of at-risk students, similar programs now ex- activities each day for five days a week over ist in non-Abbott districts, as part of reg- thirty-six weeks which is the length of the ular education. school year. For a model school of 500 Dr. Natriello, a co-author of From Cash- students, Dr. Goertz estimated 60% of stu- box to Classroom, testified in support of dents in grades one through twelve would plaintiffs’ recommendation to extend the attend; although, she admitted that this par- school day in the Abbott districts. Dr. Na- ticipation rate was ‘‘more anecdotal than any- triello stressed the importance of extending thing else.’’ Total program costs then were and expanding the learning experience S 588for calculated based S 589on the participation of 504 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued 141,013 Abbott students in grades one for such a program or present evidence that through twelve. (P–71). summer school was ineffective or unneces- Using union rates which teachers are paid sary. Dr. Natriello testified that his re- in Philadelphia, Dr. Goertz estimated pro- search for From Cashbox to Classroom re- gram costs would include salaries for two vealed there was good student attendance in teachers at $25 per hour each, three recre- summer schools. However, he noted these ation aides at $10 per hour each, ten student programs frequently were eliminated or se- or practice teachers at $7 per hour each, and verely reduced as other demands competed one custodian at $15 per hour. Benefits for limited urban school budgets. were calculated at 18%. Materials were esti- Plaintiffs recommended that summer aca- mated at 30% of salaries and fringe benefits. demic programs be offered to all students in Dr. Goertz then arrived at an approximate the Abbott districts from grades one through per pupil figure of $455 and an overall pro- twelve. To be effective, these programs gram cost of $64.2 million. (P–70; P–71). must become permanently institutionalized to Plaintiffs claim this money should be provid- attract high-quality teachers and avoid the ed to the Abbott districts through DEPA. stigma of becoming a penalty for students Plaintiffs also recommended that schools in who failed classes during the school year. the Abbott districts provide mandatory sum- For students in grades one through ten, pro- mer school programs. Research has sug- grams would combine instruction, recreation, gested that improvements in achievement and nutrition. For students in grades eleven levels are related to the amount of time spent and twelve, programs would consist of aca- on learning. (D–4). Studies also have indi- demics and work-study opportunities with cated that students from low-income families pay. For these older students, the offer of typically lose more ground over the summer jobs in return for extra schooling serves as than do advantaged students, especially boys. inducement for their participation in the pro- Dr. Barnett suggested this gender difference gram. may exist because boys spend less time in The calculation of per-pupil and per-pro- the house during the summer and lack the gram costs for this supplemental program parental interaction which stimulates lan- again depended on the results of an initial guage development and learning. More sig- needs assessment. After determining stu- nificantly, this summer learning-loss tends to dent needs in each district, appropriate sum- be cumulative so that the gap grows greater mer programs can be designed. At that every year. The typical disadvantaged stu- point, costs of the different components can dent cannot make up this difference during be determined. These amounts can factor in the school year. Extended term or summer additional expenses for staffing, materials, school provides children in the SNDs with and facilities as well as such cost savings as structured educational programs which im- fewer student retentions. prove their academic performance by in- Because of the State’s decision not to con- creasing their exposure to instruction and duct such a study, plaintiffs offered their sustaining their gains over the summer. Ad- sample budget for an illustrative summer ditionally, summer programs provide a so- school program. For grades one through cially acceptable alternative to unsupervised ten, plaintiffs proposed a program lasting six vacation time. This latter reason takes on hours, five days a week for eight weeks. increased importance as welfare reform re- This program was designed to serve 60% of turns more parents to the workforce with its the students in the S 591model school of 500. concomitant effect on the supervision of chil- Budget items included: one program coordi- dren in those families. nator; fifteen teachers; fifteen recreation

S 590Again, the State did not include a sum- aides; five student teachers; fringe benefits; mer program as part of its whole-school re- and materials. Dr. Goertz testified the over- form. However, the Commissioner did not all cost would be $736 per pupil for a total study actual needs of disadvantaged children amount of $91 million. (P–70; P–72). ABBOTT BY ABBOTT v. BURKE N. J. 505 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued The configuration differs for grades eleven dressed quickly after their identification; 4) and twelve because these older students recognize that fewer services were available would receive four hours of instruction and in poorer communities; and 5) reduce the anticipate four hours of employment. Here, likelihood of inadequate service and absence plaintiffs assumed stipends would be paid of case management. partly by the program and partly by the Instead, plaintiffs recommended bringing employer. This program also would run five health and social services into the Abbott days a week for eight weeks and would serve schools. This supplemental program could 60% of all eligible students; although, Dr. be funded under the leadership of DOE and Goertz admitted she actually computed these would address those non-cognitive needs of figures using less than 60% attendance to students which affect their readiness to account for alternative job opportunities learn. On-site clinics would remove obsta- available to special education students. Bud- cles to academic achievement caused by un- get items included: one program coordina- met health and social service needs. They tor; fifteen teachers, fifteen practice teach- would include such services as physical and ers; five recreation aides; fringe benefits; mental health care, dental care, health edu- materials; and a $2 program share of the cation, individual and family counseling, drug stipend. Using the same percentages of and alcohol counseling, parenting education, fringe benefits (18%) and materials (30% of and child care, where appropriate. These salary and benefits), Dr. Goertz arrived at a school-based centers would: 1) give teachers per-pupil cost of $811 for a total amount of more time to educate; 2) shorten the time $11 million. (P–70; P–72). The overall cost between identification of a problem and ac- for an extended term program was estimated cess to services; 3) reduce absenteeism; 4) at $102 million. limit the problem of unavailability of commu- nity services; 5) address the health needs of Another substantial difference between the uninsured students; 6) prevent more serious State’s and plaintiffs’ proposals was in the health and mental problems; 7) reduce ex- area of health and social services. However, pensive hospital emergency room admissions; both parties recognized the need to address 8) maintain patient confidentiality; and 9) these concerns. The Commissioner in his ensure access to basic medical, dental, and report acknowledged that low-income fami- other health care essential to achieving early lies ‘‘often live in communities that have and sustained success in school. weakened infrastructures which pose a num- Plaintiffs based their recommendation on ber of problems for families requiring health programs currently operating successfully in and social services which may not be avail- the Abbott districts and elsewhere in this able or, when available, are not accessible.’’ country. Lawrence E. Gottlieb, senior pro- (D–2). The State, however, did not study the gram officer at the NBI Health Care Foun- actual needs of Abbott children or assess the dation (NBI Foundation) in Roseland, New availability and quality of existing community Jersey, testified the Robert Wood Johnson resources to service them. Rather, Dr. Foundation identified 900 school-based Anderson testified that such an assessment health care programs in the United States as would be undertaken if the whole-school re- of S 593‘‘right now.’’ In fact, Gottlieb indicated form approach was accepted by the Court. the idea of providing on-site health care ser-

S 592Plaintiffs objected to the State’s propos- vices to school children was growing ‘‘pretty al to refer Abbott students to community rapidly.’’ Many of these programs were health care providers and social service orga- based on partnerships between community nizations. (D–2). Specifically, plaintiffs con- service providers and schools. tended a referral-based system failed to: 1) For example, the NBI Foundation worked guarantee children actually received such closely with the Newark Public Schools (a services; 2) resolve issues related to trans- State-run district) and Saint Barnabas portation, family availability, and hours of Health Care System which includes the New- operation; 3) assure problems would be ad- ark Beth Israel Medical Center to create a 506 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued school-based health center at the George crisis intervention, educational remediation, Washington Carver Elementary School. employment services, training and place- Carver is a kindergarten through grade eight ment, parenting education, and recreation. family school of 1100 students located in the (P–40). Other services such as transporta- South Ward of Newark. The on-site center, tion, teen parenting, family planning, child scheduled to open in January 1998, will use care, and nutritional counseling were imple- the existing school nurse as the ‘‘gatekeeper’’ mented on an as-needed basis. Grants from to make initial evaluations. Proposed school- DOE and the Department of Health also based staff include a full-time clinic director, could be used to supplement the core ser- vices. Individual sites with this program full-time nurse practitioner, part-time physi- have reported reductions in dropouts, sus- cian, full-time dental hygienist, part-time pensions, teen births, and incidents of violent dentist, and a full-time social worker. Op- behavior. (P–4). tional health care professionals such as nutri- tionists and health educators will be added as Plaintiffs’ proposal to establish school- needed. (P–40). While the NBI Foundation based health and social services emphasized the importance of long-term funding commit- will provide the financial resources to initiate ments. While applauding the collaborative the program, Gottlieb testified that in-kind efforts of private and public partnerships to resources will be contributed by the Newark establish on-site health care and social ser- Public Schools and Saint Barnabas Health vices, plaintiffs noted such initiatives could Care System. Reimbursements also will be disappear if private foundations lose interest pursued through Medicaid, managed care, or grants expire. For example, Leslie Mor- and charity care. The total program budget ris, project coordinator of the Adolescent is estimated at $552,700 including salaries, Center at Snyder High School in Jersey City, benefits, administrative costs, supplies, New Jersey, testified that the Center opened equipment, marketing, architectural fees, in March 1988 under the auspices of a grant renovation costs, and furnishings. (P–41). from the Robert Wood Johnson Foundation. After subtracting start-up costs, this budget Initially, the Center provided a full, compre- suggests the annual operating cost at the hensive health program including primary Carver School should be in the vicinity of health care, dental care, reproductive health $397,000. However, the NBI Foundation will services, mental health services, diagnosis reevaluate funding for the program ‘‘year to and management of chronic problems, labo- year.’’ ratory tests, and prescription services. When the grant expired in 1993, the Center Edward Tetelman, Assistant Commission- had provided services to over 6,000 students er for Legal and Regulatory Affairs, DHS, who made about 18,000 patient visits. Sub- testified that fourteen Abbott districts had sequently, the Jersey City Board of Edu- implemented the School–Based Youth Ser- cation funded the program at $100,000 with vices Program (SBYSP). This program, de- the difference coming from in-kind services veloped in 1986 by DHS, under then-Gover- and Medicaid reimbursements. However, in nor Kean’s administration, represented the 1995, the Center lost its ability to provide first statewide effort in the country to pro- primary health care services because it no vide adolescents with convenient access to longer could bill S 595Medicaid directly. At- health S 594and social services. Only appli- tempts to restore these services through con- cants that received support from a broad tractual arrangements with managed health coalition of local voluntary and public agen- care organizations or private foundations cies could apply for the $250,000 grants; have not met yet with success. communities with extensive teenage prob- Plaintiffs also questioned the sufficiency of lems received priority for approval. (P–53). funds under the DHS program. As Assis- SBYSP supported projects offering a range tant Commissioner Tetelman testified, the of services including health care, mental ‘‘flat’’ budget for this program was $6 million health and family counseling, health edu- when it began in 1986 and currently is $7.1 cation, drug and alcohol abuse counseling, million. The relatively flat legislative appro- ABBOTT BY ABBOTT v. BURKE N. J. 507 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued priation reflects that increased funding for and attentive in school. He suggested that school-based youth services is recognized but all students receive two free high-quality is not a top priority at DHS. Consequently, meals daily plus nutritional snacks during over the past decade, only a small percentage extended school days. This approach would of potential applicants have received funding eliminate any stigma attached to receiving for this program. free or reduced price lunches and would en- Because of limited DHS funding, plaintiffs sure 100% participation in the nutritional recommended that DOE fund school-based program. clinics to address the health and social ser- Plaintiffs did not estimate the cost for vices needs of students in the SNDs. Each implementing this program in all Abbott school in the Abbott districts should receive schools. They said such a figure could not $300,000 based on the current cost of operat- be offered until the State conducted a needs ing the DHS school-based youth services assessment including: 1) identification of program. The estimated total cost of estab- non-reimbursable costs of existing breakfast lishing these programs in all 420 elementary, and lunch programs; 2) likely participation middle, and high schools is $126 million. (P– rates in after-school and summer programs; 70). Plaintiffs claimed this amount could be 3) sufficiency and quality of available facili- offset by funds already appropriated for the ties; 4) assessment of current breakfast and SBYSP. Also, plaintiffs estimated approxi- lunch participation rates; and 5) the differ- mately 20–30% of program costs could be ence between existing and full participation recovered through reimbursement for health in a high-quality, nutritional program. The Commissioner in his report presented no evi- services provided to students from medicaid, dence of the actual nutritional needs of chil- health maintenance organizations and charity dren in the SNDs nor did he make any care. recommendation for student nutrition. However, plaintiffs alleged particular pro- Plaintiffs and the Commissioner did agree gram components could not be determined that schools in the Abbott districts should until the State conducted a needs assessment provide alternative education programs, of each individual school and its community. school-to-work and college transition pro- In particular, the State must determine the grams, adequate security measures, instruc- social and health conditions of students tional technology, and increased opportuni- served, the numbers of students involved, the ties for parental involvement. However, availability and quality of existing community they disagreed on specific designs, compo- health and social services providers, and nents, costs, and implementation of these need for additional space. Depending on the supplemental programs. findings, plaintiffs suggested a sample pro- Both parties recommended the Abbott dis- gram would include one director, one nurse tricts provide alternative education pro- practitioner, one counselor, one social work- grams. However, plaintiffs’ proposal dif- er, one part-time medical director, and one fered in S two major respects from the nurse. 597 State’s recommendation by: 1) establishing S 596Plaintiffs also request supplemental an alternative program within each middle funding to establish a comprehensive nutri- and high school; and 2) determining pro- tional program for students. This funding gram components only after completion of a would pay for uncovered costs of the federal- full needs assessment. Particularly, plain- ly-funded breakfast and lunch programs, 42 tiffs’ plan required an assessment of the U.S.C.A. § 1751 to § 1769(h), as well as nu- number and needs of potential participants, tritional snacks for after-school programs an evaluation of currently existing alternative and summer school. By fostering good programs, and a review of various dropout health, nutritional programs increase a stu- prevention approaches. Plaintiffs identified dent’s readiness to learn. Dr. Natriello testi- the following goals for their program: 1) to fied that nutritional needs of students must respond to those students with learning defi- be met to ensure that students are well-fed ciencies who would benefit from more infor- 508 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued mal, individualized instruction; 2) to prevent be an assessment of: 1) the costs of similar students from leaving school before gradua- programs in the I and J districts; 2) actual tion; and 3) to promote a more coordinated needs of middle and high school students in approach to students with behavioral prob- the Abbott districts for college and career lems. counseling; and 3) current guidance staff Plaintiffs noted the amount of supplemen- workloads to determine capacity for imple- tal funding to establish alternative education mentation. programs in the Abbott districts could be Further, plaintiffs agreed with the Com- determined only after completion of the missioner’s general recommendation for in- needs assessment. Dr. Natriello testified creased security. However, once again, the that costs for such programs could vary sub- Commissioner proposed to use regular edu- stantially depending upon different staffing cation funding to pay for additional security configurations. For example, in some personnel even though he never studied the schools, drug abuse could be an important actual needs of students in the Abbott dis- issue requiring specialized staff but in other tricts. In fact, Assistant Commissioner Az- schools, drugs may not be a problem. Fur- zara said on cross-examination that he de- ther, high school completion or dropout rates rived the ratio of 1:225 guards per student vary across the Abbott districts. Recent data from the Elizabeth and Perth Amboy propos- from a cohort study which followed a group als for security personnel in their 1997–98 of students from grades nine to twelve parity expenditure plans. showed that graduation rates in 1995 ranged Alternatively, plaintiffs’ recommendation from lows of 33% in Trenton, 42% in Newark, assumed there were additional security needs 48% in Jersey City, and 60% in Paterson in the Abbott districts which were ‘‘over and City to a high of 80% in Perth Amboy. (P– above’’ the needs of I and J districts. These 61). Thus, the nature, extent, and cost of poorer urban school districts, often located in dropout programs in the Abbott schools high crime neighborhoods, have increased in- 5 would differ. cidents of violence and crime. To determine Nonetheless, plaintiffs suggested a general an appropriate funding level for security in design for this supplemental program would these schools, plaintiffs requested more consist of one program director, one teacher study, including an examination of: 1) securi- per ten students with an undetermined num- ty S 599measures and spending in the I and J ber of aides, S 598counselors, and specialists. districts; 2) the number and adequacy of Per-pupil and per-program costs would in- Abbott district security personnel and other clude salaries, benefits, materials, supplies, measures; and 3) appropriate security staff- equipment, and the creation or renovation of ing levels in the SNDs. Dr. Goertz testified additional facilities space, as necessary. she could not determine the cost of supple- Both parties also recognized the impor- mental security without this comprehensive tance of school-to-work and college transition needs assessment. programs for students in the Abbott districts. Plaintiffs and the State both proposed to The major difference between the two rec- give students in the SNDs more access to ommendations involved the funding source. instructional technology than their peers re- Whereas the State proposed to implement ceive in I and J districts. Both parties these programs using existing regular edu- agreed that children in wealthier districts cation funding, plaintiffs claimed extra re- had greater exposure to computers in their sources and supports were necessary to meet homes and communities. However, plaintiffs the special needs of Abbott students for pro- claimed the Commissioner did not study the grams to strengthen workplace-readiness actual needs of Abbott students and failed to skills and better prepare them for college. examine technology expenditures in the I To determine these additional requirements and J districts. Without knowing the extent and their costs, plaintiffs asserted there must or cost of the technology programs provided

5. A recently-released study suggests 1994 high- den, Jersey City, Newark and Paterson. Edu- school ‘‘dropout rates’’ at 50% or worse in Cam- cation Week, January 8, 1998 at 67. ABBOTT BY ABBOTT v. BURKE N. J. 509 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued to the wealthiest districts, Dr. Goertz again students can achieve the State’s heightened testified she could not determine the supple- standards. Plaintiffs proposed a court-su- mental or extra technology needs of poorer, pervised proceeding to present these findings urban districts or their costs. no later than December 1, 1998 with recom- Both parties also recognized that increased mendations forwarded to the Supreme Court parental involvement in Abbott schools would by December 31, 1998. (P–26). address another special need of disadvan- Plaintiffs also would require the State to taged students. These children often do not establish an interim, state-level Abbott have the necessary home support for learn- School Improvement Fund. This Fund, ad- ing. Their parents are less educated and ministered by the Commissioner, would pro- some lack appropriate parenting skills. Cul- vide schools in the Abbott districts with re- turally sensitive parent training programs sources to evaluate and implement whole- have proved successful in improving student school reform, SFA or other research-based achievement rates and reducing retentions. programs designed to improve the core cur- (P–4). These programs view parents as es- riculum and instruction under the new stan- sential actors in school restructuring, plan- dards. Plaintiffs suggested that $31.4 million ning, and governance. was an appropriate level of funding. (P–70). Plaintiffs rejected the State’s recommen- Specifically, Dr. Goertz derived this figure dation to provide one parent liaison in each based on her determination that it would cost elementary school and to integrate this pro- approximately $313,730 per school to support gram’s cost into the regular education bud- whole-school reform and that 100 or about get. Instead, plaintiffs proposed a more 25% of the Abbott schools would be in a aggressive program of parent training and position to implement improvements by the education. First, the program would be tai- fall of 1998. lored to the particular needs of parents in Lastly, plaintiffs proposed the addition of each school. Second, parent liaisons would one instructional improvement facilitator for be created in all elementary, middle, and each Abbott district and each school. This high schools. Third, the number of parent individual would ‘‘plan, assess, coordinate and liaisons at each school would depend upon implement programs and strategies to im- the school’s size with a minimum of one for prove curriculum and instruction.’’ every 500 students. S 600Fourth, this pro- S 601(Plaintiffs’ proposed finding # 170.) Dr. gram would be implemented from funds Goertz testified other cities which implement- ‘‘above and beyond’’ what currently is avail- ed whole-school reform funded such staff to able for regular education. To determine assess student needs and design appropriate actual costs, more study of student needs programs. Goertz estimated the cost for must be undertaken. However, plaintiffs facilitators in each of the 420 schools plus estimated the total cost of providing parent twenty-eight districts at $26.2 million using coordinators in the Abbott districts at $12.5 the average salary in I and J districts ($51,- million ($20,500 salary plus 18% benefits). 000) plus benefits (18%). (P–70). Plaintiffs contended the implementation of In addition, plaintiffs recommended a ser- supplemental programs could not be accom- ies of strategies to improve regular education plished solely by school-based decision-mak- in the SNDs. Initially, they would require ing and budgeting but required a clear plan the Commissioner to: 1) conduct a compre- for State assistance. They proposed the cre- hensive study of the regular education pro- ation of a state-level Interagency Council gram and professional development in Abbott consisting of the Departments of Education, and I and J districts; 2) compare program Human Services, Health, and Labor with components and staffing requirements be- representation from higher education, advo- tween these low and high-performing dis- cacy groups, and the Abbott districts. The tricts; and 3) identify changes and additional Council would serve to: 1) oversee the imple- funds necessary to improve core curriculum mentation of a coordinated plan to deliver and instruction in Abbott schools so their health and social services to students in the 510 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued poorer urban schools; 2) assist in the formu- class size; 2) after-school and summer pro- lation of policy and programs; 3) address grams; 3) school-based health and social specialized needs and populations; 4) solicit services; 4) parent coordinators; 5) instruc- proposals to conduct State-funded research tional coordinators; 6) the interim Abbott on new developments in the education of School Improvement Fund; and 7) supple- disadvantaged students; and 5) train supple- mental program coordinators (instructional mental program coordinators including one improvement facilitators). (P–70). Because district-level staff person and one person per the State did not conduct a comprehensive school who would be funded through DEPA. needs assessment, plaintiffs said they could Likewise, each district would establish lo- not determine the costs for alternative edu- cal leadership councils comprised of repre- cation programs, school-to-work and college sentatives from the public and private sec- transition programs, security, technology, tors. These local councils would oversee nutrition, and professional development. individual school needs, assist in the evalua- (P–26). tion and implementation of programs, and coordinate the various community services VI devoted to children and their families. (P– ANALYSIS OF SUPPLEMENTAL 26). PROGRAMS ASPECT Finally, plaintiffs requested the State to This court’s analysis and conclusions of the promote inter-district networking, collabora- program aspect are based on testimony tak- tion, and dissemination of ideas through the en over the twelve hearing days, review of creation of a Council of Abbott Districts. the ninety-seven exhibits, consideration of This Council would meet regularly and would the views of this court’s consultant, Dr. Od- be supported by a small staff to be funded den, who also consulted with the parties’ from per-pupil assessments applied to each representatives and expert witnesses, this district. (P–26). court’s review of the profesSsional603 literature S 602Plaintiffs proposed a three-year period alluded to in the testimony, the experts’ re- of implementation for their supplemental ports, and ten visits to court-selected schools programs. During 1998–99, the State in the City of Camden School District, most would: 1) conduct a needs assessment; 2) in the company of the parties’ representa- collaborate with community-based providers tives, and all on notice to the parties. The of health care, social services, and early court also relied extensively on the excellent childhood programs; 3) establish and fund proposed findings of fact and conclusions of the State Interagency Council, Council of law submitted by the parties at the conclu- Abbott Districts, Abbott School Improve- sion of the hearings, in lieu of a trial brief. ment Fund, and the Research and Develop- See 9A Charles A. Wright and Arthur R. ment Program; and 4) place trained instruc- Miller, Federal Practice and Procedure tional improvement facilitators in each § 2578 (1995). school to design required programs. (Plain- This case involves the application of consti- tiffs’ proposed finding # 199.) The supple- tutional principles to public policy decision- mental programs then would be implement- making. The testimony presented no conflict ed over the next two years subject to the in credibility of the witnesses. Indeed, the availability of appropriate facilities. These court finds no need to resolve any specific programs would continue until the Commis- credibility issues in order to make its find- sioner can demonstrate they are no longer ings, conclusions and recommendations. needed. Each witness appeared truthful, relating Plaintiffs estimated the overall cost of facts and opinions as perceived by them. their supplemental programs (excluding ear- Naturally, since the dispute was over edu- ly childhood programs) was $453.6 million. cational and social policies, and ultimately the (P–70). This amount, however, included welfare of children and the expenditure of only the following programs: 1) reduced taxpayers’ money, disagreements on specific ABBOTT BY ABBOTT v. BURKE N. J. 511 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued points were wide-ranging. With these gen- sive and natural boundaries—such as county eralities and implications in mind, this court or natural regional districts. This system reaches the following conclusions from the would recognize more robust and sound polit- evidence considered in light of the social ical and financial foundations than the pres- science background against which the proofs ent school districts, which are defined almost were presented. exclusively by municipal boundaries, see N.J.S.A. 18A:8–1, to the exclusion of any This court is in substantial agreement with other consideration. the analysis and recommendations of Dr. Od- den on the programmatic issues. This We agree with the State’s position that court’s conclusions are not based exclusively fundamental school-based educational reform in the SNDs is entirely consistent with the on his views but rather are based substantial- philosophy of Abbott IV and its precursors. ly on the court’s independent inferences and Indeed, we doubt that the plaintiffs seriously conclusions from the testimony presented disagree with this point. The State’s reform and available social science data. In several ‘‘proposal has an effective literacy program instances, this court might be more inclined at its core.’’ (Odden at 3.) We accept this to favor the plaintiffs’ view than Dr. Odden proposal totally. The emphasis on reading, does. Ultimately, any disagreement on that writing and communication espoused by Dr. score is up to the Supreme Court to resolve. Slavin’s program is the quintessential foun- This court indeed ‘‘has before it two differ- dation for all future gains. The SFA pro- ent visions of the scope of programs to be gram is proven effective. Based on the testi- included in the resolution’’ (Odden at 1) 6 mony in this record and on the professional

S 604of this constitutional dilemma. The literature, this court heartedly S 605endorses State’s vision is likely driven by a certain the State’s plan for SFA, or other compara- measure of political pragmatism; the plain- ble whole-school reform programs, such as tiffs’ vision is likely driven by optimistic, the Comer School or family and community well-meaning idealism. This court’s pro- school programs, in the Abbott districts. posed solution may be viewed in a certain We also agree with the State’s view that sense as a compromise but the court is al- now is the time to rebuild both the curricu- ways aware that State constitutional rights lum and the financial structure from the cannot be discounted with the same currency ‘‘ground up,’’ i.e., from the school level and as commercial or political utility. not the district level, with a ‘‘school-based’’ budget approach. Perhaps this embrace of Our starting ‘‘point is that the education whole-school reform has been prompted by program in the I and J districts is the de the State’s recent experience in managing facto [constitutional] standard.’’ (Odden at the ‘‘takeover’’ districts, Paterson, Newark 2.) The State apparently accepts this reality, and Jersey City. No matter what the inspira- that fiscal deficit funding for horizontal equi- tion, financial management and curriculum ty is morally, if not constitutionally required, reforms at the foundation level of education at least, as the Supreme Court put it, until are greatly encouraged over the prior ‘‘top- ‘‘it can be convincingly demonstrated TTT down’’ approach—DOE down to district then that a substantive thorough and efficient edu- to school-level. We sense from the evidence cation can be achieved in the SNDs by ex- presented in this proceeding that there has penditures that are lower than parity with long been too little State involvement at the the most successful districtsTTTT’’ Abbott school-level and too much reliance on remote IV, 149 N.J. at 196, 693 A.2d 417. Realis- control through the districts. This whole- tically, fiscal parity between Abbott districts school reform from the ground up also may and I and J districts probably will remain the lead to financial efficiencies which could be norm until a more manageable State system disclosed only through careful examination of evolves, i.e., fewer and more efficient dis- each school (and district administrative) bud- tricts than the current 611, with more cohe- get. Indeed the court thinks a two-year

6. Odden references are to Appendix A. 512 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued budget cycle, instead of a one-year cycle, Again, if there is not enough money—if the might permit closer, more effective scrutiny calculation turns out wrong—the Supreme of district fiscal affairs. Court’s order should compel adequate State As noted, this court strongly endorses the funding to support the whole-school reform concept of whole-school reform with the pre- program notwithstanding. sumption in favor of Dr. Slavin’s SFA pro- We also must comment that programs like gram. He was a most impressive witness. art and music should not be minimized in the His program is encouraging and proven. In- whole-school design and reform model. deed, Dr. Slavin was urged upon this court These culturally enriching, life-enhancing by plaintiffs, in August 22, 1997 correspon- programs are even more important for the dence, as a possible judicial consultant when typical ‘‘at-risk’’ student in the SNDs or Ab- the court sought the parties’ advice on the bott districts than in the I and J districts, point. where family and community resources for cultural pursuits are much more likely avail- This court personally observed the SFA able to their typical students. If anything, program in Principal Annetta Braxton’s appropriate art and music programs and fa- Cramer School (pre-kindergarten to grade cilities should be stressed more in Abbott four) in East Camden, a most impressive districts and the Supreme Court may desire operation. These children clearly were ea- to so recognize in its order. ger, ready and learning. Of course, we rec- S We agree with Dr. Goertz, a well-quali- ognize that the intangibles of fine leadership 607 fied plaintiffs’ expert, that SFA is a supple- and dedicated S 606teaching are the keys to mental program, although integrated with a any program. Unfortunately, these qualities foundational education program, within the are not derived from an accountant’s balance intent of the Supreme Court expressed in sheet or stratagems of the bargaining table. Abbott IV and its precursors, and that SFA While we endorse the State’s program of will be most especially efficacious in poorer whole-school reform under the aegis of SFA urban districts with high populations of ‘‘at- or analogues, we stress several caveats. The risk’’ students. In sum, this court agrees needs of special education students must not with the State’s overall approach for edu- be compromised where these needs are legit- cational and financial reform at the school imate. See N.J.S.A. 18A:7F–19 (CEIFA level. We concur with Dr. Odden ‘‘that the funding for special education). We recognize approach taken by the State, if fully and and hope that successful implementation of faithfully implemented, would represent the this SFA program may eliminate some, per- cutting edge of re-engineering school finance haps many, of the special education needs, as to the purposes of standards—and school- Dr. Slavin so described. We do not construe based education reform, the objective of the State’s position as designed to ‘‘short- which is teaching all students, including low- change’’ special education, as plaintiffs sug- income students, to high standards.’’ (Odden gested. And this surely must not happen. at 5.) This reform approach proposed by the Any Supreme Court order should require State also should be appropriate for the mid- that sufficient funds for special education dle and secondary schools. (Odden at 10– purposes remain in any school-based budget. 11.) Again, if the economic forecast is wrong We interpret the Commissioner’s testimony and if there is not enough money in the as assuring adequate money in individual system, then the Commissioner must, as school-based budgets for all extant worthy promised, seek appropriate funding for these programs, including special education, and middle and secondary levels. we take him at his word on this point. Ac- We proceed to the specific points and rec- cording to the Commissioner’s budget mod- ommendations. els, and in Dr. Odden’s opinion, there will be 1. Parity Spending. We recommend enough money available to the schools under that the State continue to guarantee the Ab- the State’s proposal (with the parity money) bott districts the average spending level of to sustain the whole-school reform program. the I and J districts for the 1997–98 school ABBOTT BY ABBOTT v. BURKE N. J. 513 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued year ($8664 per pupil) with inflationary ad- school pupil). (P–26). The State has provid- justments (presently 2.72%) in subsequent ed $86.1 million in ‘‘T & E’’ and parity fund- years. This should continue as the base ing for full-day kindergarten programs in its funding for regular education in the Abbott illustrative revenue budget (D–2); thus, the districts, providing the ‘‘horizontal equity’’ net cost of implementing full-day kindergar- alluded to by the experts at the hearing. If ten is about $87.7 million. agreeable, the Supreme Court also must de- This court strongly endorses the State’s cide whether future parity or deficit funding commitment to full-day kindergarten. CEI- must track the annual changes in I and J FA itself specifically addresses early child- average spending. We suggest that it hood program aid ‘‘for the purpose of provid- should. ing full-day kindergarten and preschool 2. Whole–School Design. We recom- classes and other early childhood programs mend that the State require the Abbott dis- and services.’’ N.J.S.A. 18A:7F–16. The tricts to adopt some version of a proven, funding formula in CEIFA, id., which alleg- effective whole school design with SFA– edly provides $200 million to Abbott districts Roots and Wings as the presumptive elemen- for early childhood aid, gave no assurance tary school model. Other very effective facially of adequate funding for this program school models we have observed were: 1) the and was found defective for that reason. Comer School Development S 608Program at This S 609full-day kindergarten program should the Francis X. McGraw Elementary School be implemented immediately. in East Camden, Principal Dr. Paul L. Ste- 3(b). Preschool for ages three and four. phenson (pre-kindergarten through grade While recognizing the efficacy of preschool five); 2) the ‘‘uniformed’’ Professional Devel- programs for low-income children, ages three opment Family School at Cooper’s Poynt in and four, the State proposed only a half-day North Camden, Principal Annie B. Rubin program for four-year olds. This court dis- (pre-kindergarten through grade eight); and agrees with the State’s recommendation and 3) the ‘‘uniformed’’ R.T. Cream Family urges a full-day program for all children ages School in Central Camden, Principal Dorothy three and four whose parents desire enroll- W. Wyatt (kindergarten through grade ment. We anticipate a participation rate of eight). about 75%. This court is convinced that such We here repeat the caveat that the State a program will have a significant positive must adequately fund special education, art impact on academic achievement in both ear- and music under any of these models, recog- ly and later school years. As Dr. Barnett nizing that exemplary programs and facilities related, ‘‘people often say that poor kids are therefor should be stressed in the Abbott two grade levels behind by the time they’re districts in these subjects because of lack of in elementary school TTT behind the aver- community or family resources. If sufficient age.’’ (December 1, 1997 at 141). As the financial support cannot be derived from the experts described, the long-term benefits am- illustrative school budget, the State, true to ply justify this investment. The cost esti- the Commissioner’s promise, must make up mates for the early full-day childhood edu- the difference to insure the quality of SFA– cation program which this court recommends Roots and Wings including special education, are significant: $260.7 million for three-and and exemplary art and music classes. This four-year olds (estimated 22,000 for each commitment by the Commissioner also ap- group with 75% utilization at $7900 per pu- plies to alternative schools at the secondary pil). These programs also must be imple- level, in this court’s view. mented promptly, by the 1998–99 term, if at 3(a). Kindergarten. The State agrees all possible. that full-day kindergarten should be fur- 3(c). Early Childhood Costs. The total nished, rather than half-day as at present. incremental cost for recommended full-day Full-day kindergarten would cost about kindergarten and preschool programs would $173.8 million (estimated 22,000 students at be $148.4 million or $434.5 million less the $7900, the I & J average per elementary $286.1 million the State allegedly has com- 514 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued mitted already to early childhood programs longitudinal studies are laborious and expen- in ECPA, ‘‘T & E’’ and parity funds. If the sive. However, the virtually universal intu- Supreme Court opts for a less intense pro- ition on this aspect, as gleaned from this gram, full-time classes for four-year olds court’s experience, supports the view that only, or half-day classes for three-year olds ‘‘smaller is better’’ for early schooling pur- still would be very beneficial. poses. If more money is invested, this is 4. Class size reduction. This court where this court would put it, ever mindful, agrees with Dr. Odden’s analysis on rejecting of course, of the strains on the facilities’ budgets. class size reduction to fifteen for kindergar- ten to third grade. Conceptually, whole- 5. Summer school or extended term. school reform like SFA and class-size reduc- This court agrees with the recommendations tion to fifteen are alternative programs. If of Dr. Odden (at 18), Dr. Goertz, plaintiffs’ SFA is implemented effectively and works, expert, and others that the State fund an this is sufficient. SFA reduces class size in extended term or summer school program grades one through three in reading to fif- for all interested children. The cost estimate is $100 (Odden) to $102 (Goertz) million. Be- teen S 610children for ninety minutes or for about 30% of the instructional day (298 min- cause many S 611children in the Abbott districts utes). This court presumes from the record have had difficulty learning to high stan- that the enhanced ninety-minute reading pe- dards, this extended-term effort will provide for extra opportunity to learn to expected riod could be made available if needed after levels and is a worthwhile investment in con- grade three. Reading is the key program. junction with this court’s recommended em- If SFA does not work or is not implemented phasis on the preschool or early childhood effectively, overall class size reduction to fif- education, and smaller and more intensive teen for students in kindergarten through reading programs. This court concludes that third grade is strongly recommended by this the extended term program is probably a court. Unfortunately, this possibility of fail- better educational investment than an ex- ure exists because whole-school reforms, tended-day program. The cost of extended such as SFA, depend greatly on faculty skills term is estimated at $100 million. and enthusiasm. 6. School-based health and social ser- This court was very impressed with Dr. vices. This court adopts the views of Dr. Finn’s testimony about the effect of small Odden (at 19 to 22) on this supplemental class size shown by the longitudinal Tennes- program and incorporates them in the rec- see Star Study. The impact of small classes ommendation. Again, as in class size reduc- on educational advances by racial minorities tion, this court is inclined to perhaps a more was even more substantial, according to Dr. generous State financial contribution towards Finn. (See Odden at 17.) This court will school-based health and social services than accept the State’s recommendation for re- Dr. Odden. The need for these services in duced class size to twenty-one but only if the Abbott districts is manifest and the bene- whole school reform, stressing reading as in fits are undeniable. The DOE eschews this SFA, is vigorously and successfully pursued. mission as beyond its educational mandate as If not, class size reduction to fifteen from compelled by law and asserts this task is or kindergarten to grade three should be man- should be exclusively within the charge of the dated promptly. The program cost of reduc- State’s public health and social service deliv- ing class size to fifteen at these four levels ery agencies. could be about $80 million according to the A rethinking of government’s role in this plaintiffs’ proposals. (Plaintiffs’ proposed respect and more efficient logistical methods findings # 58 and # 77.) While published are probably in order. These services should studies are not extensive on the power of optimally be provided at the school, confiden- class size reduction, we may not see anything tially and distinct from the school’s edu- in the research more persuasive for the next cational administration, because as Human decade, if not the next generation. These Services’ Assistant Commissioner Tetelman ABBOTT BY ABBOTT v. BURKE N. J. 515 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued testified: ‘‘That is where the kids are.’’ This Pathways to Progress, Education Week, Jan- court has observed these programs at Cam- uary 8, 1998, at 244–45; Eric A. Hanushek, den High School (including on-site maternity Making Schools Work: Improving Perfor- care) and at Woodrow Wilson High School, mance and Controlling Costs 85–124 (1994). also in Camden. These programs, when ade- 8. Security costs. Unfortunately, testi- quately staffed and funded, are designed pre- mony about the added security costs in the cisely to overcome the ‘‘extreme disadvan- Abbott districts was not articulate at the tages facing children in the SNDs,’’ which hearings. This court concludes that the impede educational improvement. Abbott IV, State thought the costs were covered ade- 149 N.J. at 179, 693 A.2d 417; see Abbott II, quately in the proposed illustrative or model 119 N.J. at 369, 575 A.2d 359. And these school-based budgets, as augmented by con- programs are contemplated specifically in tinued parity funding. Obviously, any addi- CEIFA’s enumerated DEPA program man- tional security needed in the environment of date. N.J.S.A. 18A:7F–18a (includes ‘‘health the Abbott schools should not be allowed to and social service programs’’). eat away at the regular education budget.

S 612Currently, the twenty-five existing See Abbott IV, 149 N.J. at 172–73, 693 school-site programs (fourteen in the Abbott S 613A.2d 417. If the Supreme Court is dissat- districts) are spliced together by modest isfied with the State’s treatment of security grants from Human Services, local district costs, the Court could order supplementary support, in-kind space contributions by funding consistent with the State’s recogni- schools, and annual grants secured and annu- tion of this reality. ‘‘The estimated addition- ally resecured by local personnel. This court al costs for these [Abbott district] security has no hesitancy in supporting Dr. Odden’s measures is $61 per pupil at the elementary recommended $40 million in funding on this level and $146 per pupil at the middle and score for middle and secondary schools, high school levels.’’ (State’s proposed find- where the need is probably greatest. The ing # 91.) estimated total cost by plaintiffs for school- 9. Summary. The net cost of these sup- based health and social services at every plementary program recommendations is an level in every Abbott district school is about estimated $312 million. This cost is net of $126 million (less uncertain collateral funding committed by the State for early sources), or $300,000 per school, an ambitious childhood programs in its illustrative revenue number but no doubt sincerely advocated. budget: $200 million in ECPA and about $86 Of course, any ultimate State funding input million in ‘‘T & E’’ and parity funds. This would probably and justifiably be mostly court’s recommendations also include con- non-educational in character, perhaps from tinuing deficit fiscal contributions for regular Health or Human Services, and not DOE. education by the State to maintain the Abbott We note that these programs as currently districts at the spending level of the economi- envisioned also would provide extended-day cally privileged districts, the so-called ‘‘pari- academic assistance. (See Odden at 20–21.) ty’’ funding mandated by Abbott IV or about 7. Accountability. This court endorses $246 million for the 1997–98 term. This rec- the consultant’s recommendations on ac- ommendation is included because this deficit countability at a total cost of $24 million. funding by the State is necessary to sustain (Odden at 22–25.) Both the plaintiffs and the whole-school reform proposal. Larger the State recognized the need for accounta- program expenditures than the recom- bility mechanisms, both fiscal and academic, mended net $312 million estimate may be as did the Supreme Court in Abbott IV, 149 considered by the State or the Supreme N.J. at 193, 693 A.2d 417. This element is Court to reduce class sizes in kindergarten essential to high performance and effective through grade three across-the-board, to restructuring. Reforms in this context augment further school-based social services, should encourage competition and not reward and to recognize security costs which can failure. Lynn Olson & Caroline Hendrie, erode regular education budgets. 516 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued VII As the Court noted, implementation of the core curriculum content standards may in- THE PRESENTATION ON THE crease facilities requirements. On May 1, FACILITIES ASPECT 1996 DOE issued these standards to assure the thoroughness of education at the primary In Abbott IV, 149 N.J. at 186, 693 A.2d and secondary levels. (D–12). The stan- 417, the Court recognized that adequate dards set goals in seven core academic areas: physical facilities are key to achieving a thor- visual and performing arts; comprehensive ough and efficient education. Many school health and physical education; language arts buildings in the SNDs are ‘‘crumbling and literacy; mathematics; science; social stud- obsolescent;’’ 64% of the buildings are over ies; and world languages. Each standard is fifty years old. Id. at 187, 693 A.2d 417. See supported by a set of ‘‘cumulative progress also William A. Firestone, Margaret E. indicators’’ establishing specific expectations Goertz, and Gary Natriello, From Cashbox to for grades four, eight, and twelve. DOE also Classroom: The Struggle for Fiscal Reform issued five cross-content workplace readiness and Educational S 614Change in New Jersey standards integrated into all core academic 140–54 (Teachers College Press 1997) (P–36). programs: career planning skills; technolo- In general, schools lack adequate space to gy; critical thinking, decision-making, and deliver effective educational programs: problem-solving skills; self-management Most schools in the special needs dis- skills; and safety principles. tricts lack library/media centers, are physi-

cally incapable of handling new technology, S 615To effectively implement and monitor are deficient in physical facilities for sci- progress against the core curriculum content ence, and cannot provide sufficient space standards, DOE is developing related curric- or appropriate settings for arts programs. ulum frameworks and assessment tools. To Most schools also lack adequate physical- date, DOE has released several of the curric- education space and equipment. There is ulum frameworks including health and physi- simply no space in these districts to reduce cal education, mathematics, and science. Lo- class size; no place for alternative pro- cal districts should use the frameworks as grams; no room to conduct reduced or guidelines to program development, but their eliminated programs in music and art; and use is not mandatory. The assessment pro- no space for laboratories. The State’s new gram consists of standardized tests adminis- core curriculum standards will only in- tered at the fourth, eighth, and eleventh crease the need for capital expenditures to grade levels, phased-in over the next six improve and to augment physical facilities. years. Abbott IV, 149 N.J. at 162, 693 A.2d And, as noted, many SNDs will continue to 417. be incapable of providing early childhood programs because of a lack of space to Pursuant to the Supreme Court’s May or- house the additional student enrollment. der, DOE issued A Study of School Facilities and Recommendations for the Abbott Dis- [Abbott IV, 149 N.J. at 187, 693 A.2d tricts, (Facilities Report) in November 1997. 417.] (DF–1). The Facilities Report consisted of On remand, this court ordered the Com- three basic areas: an educational facilities missioner of DOE to review the facilities assessment, educational adequacy standards needs of the SNDs and provide recommenda- for facilities, and an improvement plan, in- tions, including proposed means of financing, cluding a proposed funding scheme. The to address those needs. Id. at 225, 693 A.2d educational adequacy standards and facilities 417. The financing plan could not be contin- improvement plan contain only preliminary gent upon a district’s ability or willingness to recommendations. DOE plans to issue final raise necessary funds, either through in- educational adequacy standards in January creased taxes or debt. Id. at 188, 693 A.2d 1998 after considering this court’s recommen- 417. dations on supplemental programs. ABBOTT BY ABBOTT v. BURKE N. J. 517 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued A. Facilities Assessment strument so that any ‘‘not functional’’ re- DOE engaged Vitetta Group, architectural sponse required a comment about the nature and engineering consultants, to perform an and extent of the deficiency. The form con- assessment of facilities in the twenty-eight tained several common criteria which applied SNDs. Vitetta Group had two objectives: 1) to all schools, minimizing subjectivity and to determine the cost of repairing or replac- facilitating compilation and evaluation of sur- vey results for all twenty-eight districts. ing deficiencies in the Abbott schools and 2) to determine additional capacity require- Vitetta Group conducted a training session ments, in order to accommodate the existing on September 4, 1997 to familiarize the facili- student population in each Abbott district. ty surveyors with the form. As part of the (DF–2). Stephen Carlidge, Director of the training, surveyors went to a practice site to Educational Facilities Program for Vitetta receive hands-on instruction and promote Group, planned and coordinated the study. consistency among surveyors’ responses. Carlidge has worked with five of the Abbott The deadline for submitting completed sur- districts (Camden, Irvington, Long Branch, veys to Vitetta Group was October 1, 1997. New Brunswick and Perth Amboy) to reno- Quality control review by Vitetta Group vate existing facilities and build new facili- S 617revealed that many surveys were incom- ties. plete or incorrect upon first submission; sur- veys were returned for correction and in S DOE hired Vitetta Group to develop a 616 some cases, more than once. About 10% of survey form for completion on each of the surveys still had errors even after the third 429 7 schools in the Abbott districts, train submission; however, according to Vitetta employees and consultants who conducted Group’s report, such errors did not have a the surveys, provide evaluative standards significant impact on the survey as a whole. and quality control, compile survey data in an Vitetta Group then compiled survey results electronic data base, evaluate survey results, and prepared a summary of findings for each and estimate the cost to correct existing defi- district. ciencies and provide additional classroom Based on information from the survey space. DOE did not require Vitetta Group summary, 1997–98 enrollment for the Abbott to consider the core curriculum content stan- districts was 261,738 students. Facilities to- dards when preparing the survey. Due to talled 35.6 million square feet, or 135.15 time constraints, Vitetta Group and the square foot per student. The average school school districts had only about two months to was built in 1941 and the average addition conduct the study and issue a report. was built in 1964. Although the survey re- Vitetta Group developed a detailed survey vealed that some schools were underutilized, instrument which was completed by district the districts required additional capacity for personnel or consulting architects and engi- 49,558 students, or 3137 classrooms, primari- neers appointed by the district. The survey ly at the elementary school level, to serve the consisted of six categories: general descrip- State’s proposed whole-school reform pro- tion and program provisions; site character- gram. (DF–2). istics; architectural and structural features; Using the survey data, Vitetta Group esti- mechanical and plumbing systems; electrical mated the cost of repairing or replacing ex- systems; and current code deficiencies. The isting deficiencies, classifying such deficien- general description included capacity, enroll- cies as functional, life cycle or current code. ment, conformance with the State Technolo- Functional deficiencies consisted of any ac- gy Plan, age of buildings, and construction ceptable ‘‘not functional’’ responses to the types. Surveyors evaluated each building survey form; responses were acceptable only component as either ‘‘functional’’ or ‘‘not if the surveyor provided sufficient explana- functional.’’ Vitetta designed the survey in- tion for the deficiency. Life cycle deficien-

7. The variation with the State’s 420 schools for ings or annex structures used as one school. program purposes is explained by empty build- 518 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued cies reflected those components which were square feet was assigned thirty students, considered functionally adequate but older consisting of two half-day classes of fifteen than expected useful lives. For example, if a students each; each existing kindergarten boiler was more than fifty-years old, it was classroom greater than 750 square feet was considered obsolete and in need of replace- assigned twenty-one students; and, each ex- ment, even if the survey reported the boiler isting general classroom in excess of 600 was functioning adequately. In addition, Vi- square feet was assigned twenty-one stu- tetta Group used conservative life expectan- dents. A utilization factor of 90% was ap- cies because of the lack of regular facilities plied to each class size, resulting in a net 13.5 maintenance in the SNDs.8 Current code students per class in each half-day pre-kin- dergarten session and a net 18.9 students per S 618deficiencies were reported separately on the survey; to avoid duplication, Vitetta class in kindergarten through fifth grade. In Group did not include any reported code middle schools, classrooms in S 619excess of deficiency that already was considered a 600 square feet were assigned 22.5 students functional or life cycle deficiency. each, with a net class size of 20.25 students at 90% utilization. In high schools, class- Vitetta Group then determined the cost of rooms in excess of 625 square feet were repair or replacement using published unit assigned twenty-four students each and costs of R.S. Means Company. Vitetta classrooms between 425 and 625 square feet Group increased these unit costs by 5 to 10% were assigned eighteen students each. A to reflect the cost of construction in New utilization factor of 85% was applied, result- Jersey. According to Carlidge, this increase ing in 20.4 students in the larger classrooms was consistent with other published data and and 15.3 students in the smaller classrooms. Vitetta’s own consulting experience. Cost of Next, Vitetta Group calculated classroom replacement included the cost to remove any deficiencies per the proposed model on a existing fixtures and related installation district-wide basis. Deficient capacity was costs. calculated by dividing the current enrollment Vitetta Group also utilized survey informa- at each grade level by the net number of tion to determine if a school needed addition- students per class listed above, then sub- al classroom capacity to accommodate its cur- tracting the number of currently available rent enrollment using the proposed whole- classrooms. Vitetta estimated that 3137 ad- school reform model. First, all school capac- ditional classrooms would be needed to ac- ities were calculated anew, based on mini- commodate the current student population, mum classroom sizes, recommended numbers consisting of the following: of students per class, and an assumed utiliza- School Type Additional Classrooms tion rate. The minimum classroom size was Prekindergarten determined by allowing twenty square feet and Kindergarten 141 Elementary 1644 per student required by N.J.A.C. 6:22–5.5, Elementary/Middle 899 then adding additional space for activity ar- Middle 202 High 235 eas, furniture and equipment, and storage. Special Education 16 DOE provided Vitetta Group with the recom- Total classrooms mended number of students per class. Uti- required 3137 lization rates then were applied to students Finally, Vitetta Group calculated the cost per class, giving flexibility to the estimate of constructing 3137 additional classrooms, and allowing for growth in the student popu- using the following square footage parame- lation. ters for new construction: 950 square feet For elementary schools, each existing pre- for pre-kindergarten and kindergarten class- kindergarten classroom greater than 750 rooms; 800 square feet for elementary and

8. For example, a report on facilities in the Pater- doned systems. EDuFAC, Five Year Long Range son School District noted that ‘‘chronic yearly Plan for the Paterson Public Schools 1 (March deferred maintenance plans’’ never were ful- 1997). (PF–12). filled, resulting in non-functioning and aban- ABBOTT BY ABBOTT v. BURKE N. J. 519 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued middle school general classrooms; and 750 legal and administrative expenses, which square feet for high school general class- approximate 25% of total construction rooms. Vitetta Group then applied a self- costs.

Scharacterized620 ‘‘grossing factor’’ of 1.33 to 1 Special project requirements such as these requirements, to account for walls, ven- site acquisition, historic preservation, and tilation, and other necessary components hazardous materials clean-up. These costs which occupy classroom space. Cost of new are difficult to estimate; for example, in construction was estimated at $125 per many urban districts, parcels owned by the square foot, consisting of $122 for actual city are sold to the district for a nominal construction costs and $3 for site develop- fee. Conversely, available sites may be ment costs. These costs were obtained from scarce or contaminated from previous in- Vitetta Group’s existing data base, then com- dustrial use and require remediation. pared to New Jersey construction cost data 1 Inflation of 4% per year. published by F.W. Dodge. F.W. Dodge com- S 6211 Estimated contingencies of 15 to 20%, piles data from public bids made over the to account for unforeseen circumstances previous twelve months. such as market conditions which cause pro- Based on Vitetta Group’s study, the total ject bids in excess of budget. estimate to expand capacity of the Abbott To account for these costs, Carlidge testified schools to comply with the State’s proposal he would add 35% to the $1.8 billion estimate, and repair or replace existing facilities defi- plus any increment for inflation. This would ciencies was about $1.8 billion. Of that total, bring the estimate to at least $2.4 billion about $437 million is required for additional based on the Vitetta Group study alone. capacity and $1.371 billion for repair and Also, due to the limited nature of the Vitet- replacement. Major components of the ta Group survey, other potential facilities $1.371 billion are $580 million for architectur- costs were excluded. Vitetta Group only al and structural repairs, $288 million for considered the cost of building additional heating, ventilation, and air conditioning re- classrooms; if an additional building was re- pairs, and $242 million for power and distri- quired, costs for ‘‘core areas,’’ such as the bution system repairs. gymnasium and media center, administrative offices, and small group instruction rooms The Vitetta Group survey was extensive; it were not included. Vitetta Group also did provided valuable details about the condition not address the adequacy of existing space of existing facilities in each of the Abbott other than classrooms. For example, com- districts. However, due to the limited objec- pleted surveys noted whether or not there tives of the survey, the $1.8 billion estimate was a media center or library. However, if does not reflect the total cost of facilities the media center did not adequately serve improvements in the SNDs. the needs of the students or if there was no The Vitetta Report states that the follow- media center at all, the cost of renovating or ing costs were not projected in the $1.8 building a new media center was not included billion total: in the estimate.9 In addition, the study did 1 General conditions of construction con- not address any new spaces required by the tracts such as bonding, insurance, and oth- core curriculum content standards. er project requirements. These costs may Moreover, the Vitetta Group study did not range from 5 to 20% of total construction address the issue of renovation versus re- costs, but typically approximate 5 to 8%. placement of existing facilities. Dr. Jack 1 ‘‘Soft costs,’’ including design and engi- DeTalvo, Superintendent of Schools for neering expenses, bond issuance costs, and Perth Amboy, an Abbott district, recently

9. For example, in the Paterson School District, dedicated computer room, of which only 25% only 62% of the schools have dedicated space for meet state standards. EDuFAC, Five Year Long a media center (library), and of those spaces, Range Facility Plan for the Paterson Public only 3% meet current minimum State standards. Schools 3 (March 1997). (PF–12). Similarly, only 53% of Paterson schools have a 520 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued worked with Vitetta Group to renovate or assumption that all buildings would have to replace six schools in his district at a total comply with the current building code, re- cost of more than $100 million. (PF–10). sulting in total potential compliance costs of According to Dr. DeTalvo, when a school is about $607 million. (DF–2). However, not over one hundred years old, it often makes all school facilities are required to meet sense to replace the existing facility with a S 623the standards of the current building code new one. One elementary school in Perth due to grandfather provisions. Proposed Amboy was built in 1897; it did not have N.J.A.C. 5:23–6 of the Uniform Construction Code may significantly reduce code compli- adequate space for a playground S 622nor did it have any corridors. Dr. DeTalvo decided to ance for renovation projects, especially with build a new facility because renovating the respect to heating, ventilation, and air condi- old facility would not meet the capacity needs tioning requirements and may reduce conse- of his district. Although the new building quent costs. (DF–2). cost more in the short-run, the growing stu- Similarly, Vitetta Group did not consider dent population in Perth Amboy necessitated opportunities for expanding capacity by re- construction of a larger building which would structuring space within existing buildings or be more cost-effective to operate.10 reconfiguring grades within a school. Cur- rently, the square foot per student in the The Vitetta Group study also did not ac- Abbott districts is 135.15, which is consistent count for changing demographics, using only with the national average. Yet, in total, the current data to determine capacity require- survey shows a shortfall of 3137 classrooms, ments. The survey reflects that most of the primarily at the elementary level. Newark, capacity needs are at the elementary level; the largest Abbott district, has a total of of the 3137 additional classrooms estimated seventy-nine schools at 177.37 square foot by Vitetta Group, 2684 are in pre-kindergar- per student, well above the average for all ten, kindergarten, elementary, and elementa- districts. Newark schools have excess capac- ry/middle schools. Over time, this deficiency ity at the middle and high school levels; should ‘‘flow-through’’ to the middle and high however, there is an unmet need of 276 class- school levels, which eventuality Vitetta Group rooms in the early grades. (DF–2). These did not reflect in the survey. Also, based on statistics indicate significant opportunities for testimony from school administrators and fa- restructuring space and reconfiguring grades cilities planners, student populations are within Newark and other Abbott districts.12 growing rapidly in many districts.11 In addition, Vitetta Group did not consider In some respects, however, the $1.8 billion trailers or leased facilities currently used by estimate may be overstated because of cer- the district to accommodate excess capacity. tain conservative assumptions used in the With respect to restructuring space, Dr. survey. Renovation costs were based on the DeTalvo testified there may be significant

10. Lee Heckendorn, Educational Consultant Financing New Jersey’s Public Schools 16 (July from EDuFAC who worked with the Paterson 1994)). School District, testified a new elementary school building, accommodating 760 students, would 12. Representatives from DOE also met with cost about $20 million. Willa Spicer, Assistant three educational consultants about the adequacy Superintendent for South Brunswick schools, of school facilities. The consultants’ report stat- testified their new high school, completed in ed that ‘‘massive underutilization’’ of space is September 1997 and accommodating 1500 stu- common to many schools, particularly underuti- dents, cost about $50 million. lization of specialized spaces. For example, a chemistry laboratory may only be used two peri- 11. Dr. DeTalvo testified that in Perth Amboy, the ods a day. The consultants also suggested dual total number of students is about 7800 and grow- or shared use of existing space such as sharing ing at the rate of about 200 students per year. theater or library facilities with the local commu- On a statewide basis, it is estimated that between nity. Impact of Facilities Upon the Implementa- the 1992–93 and 2000–01 school years, the stu- tion of the Core Curriculum Content Standards in dent population will grow by 226,000 students. New Jersey’s Twenty–Eight Abbott School Districts Abbott IV, 149 N.J. at 188 n. 30, 693 A.2d 417 2 (report of meeting held October 22, 1997). (citing Education Funding Review Commission, (DF–11). ABBOTT BY ABBOTT v. BURKE N. J. 521 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued opportunities for increasing student capacity Operations of the Arlington, Virginia Pub- in existing facilities, primarily when buildings lic Schools. Hlavin alone testified at the are very old. With the assistance of Vitetta hearing. He had extensive experience de- Group, Dr. DeTalvo undertook extensive ren- veloping ‘‘educational specifications,’’ col- ovation projects at two Perth Amboy middle laborating with educators to translate the schools originally S 624constructed in 1906 and requirements of a curriculum into satisfac- 1922. First, architects created new space by tory facilities. ‘‘infilling’’ existing light wells; these light S 625The State’s consultants discussed each wells often exist in buildings that pre-date core curriculum content standard separately mechanical ventilation. The new space was and its impact on facilities. (DF–11). Gen- used for computer rooms and storage be- erally, these consultants agreed that the cause it was windowless. Second, space was standards did not affect facilities needs, with created by replacing boiler rooms on the a few exceptions: ground floor with new roof-top systems. 1 Technology should be distributed into Third, classrooms were enlarged by about classrooms throughout the school, rather 8.5% by replacing old ventilation systems and than merely having a centralized computer storage cabinets with more modern designs. laboratory. Classrooms must have suffi- Fourth, each middle school contained sepa- cient space and infrastructure to support rate large spaces for a gymnasium, cafeteria, technology. and auditorium. By combining the cafeteria 1 At the middle and high school levels, and auditorium into a ‘‘cafetorium,’’ archi- space must be made available for perfor- tects significantly increased the building’s ca- mance aspects of the arts. pacity. All of these improvements added 1 A separate gymnasium is necessary at capacity for 175 students without increasing the middle and high school levels. the footprint of the existing structure. (PF– 1 8). At the middle school level, general pur- pose laboratory space must be provided to The Vitetta Group survey alone is not a support the science curriculum. At the sufficient basis for estimating the cost of high school level, a separate laboratory for facilities improvements in the Abbott dis- chemistry is required, while other science tricts. Carlidge testified that a full study disciplines, such as earth science and biolo- could not have been completed in the time gy, can share the same laboratory. allowed. If Vitetta Group had completed a full study, it would have cost about $3.5 Based on the consultants’ findings, field million, compared with the $248,000 Vitetta experience, and DOE’s own expertise, DOE Group had charged and which the State had recommended these minimum requirements allotted for the survey performed. for facilities: 1. All schools be connected to a high- B. Educational Adequacy Standards speed fiber-optic network and all class- In the Facilities Report, DOE defines rooms be wired for integration of technolo- ‘‘educational adequacy’’ as facilities specifi- gy into the instructional program; cations necessary to achieve the core cur- 2. All elementary schools include: riculum content standards. (DF–1). On a) Adequate classroom space for class October 22, 1997 DOE met with three sizes of 15 in prekindergarten, 21 in kin- educational consultants to determine which dergarten through grade 3, and 23 in standards, if any, impacted facilities re- grades 4 and 5. quirements. The State’s consultants were b) Space or scheduling accommodations Dr. Emily Feistritzer, President of the for 90 minutes of reading daily for stu- National Center for Educational Informa- dents in grades 1 through 3 in class sizes tion, Dr. Bruno Manno, senior fellow of of no more than 15; the Hudson Institute, and Alton Hlavin, c) Toilet rooms in all prekindergarten Assistant Superintendent for Facilities and and kindergarten classrooms; 522 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued d) Cafetorium and/or gymnasium with specialized instructional spaces, provided that stage for breakfast, lunch, large group pre- these facilities provide a clean, safe and func- sentations, instrumental music and student tional environment which is conducive to performances; learning.’’ Id. at 16. Several expert wit- e) Computer room for keyboard and nesses testified they concurred with this as- computer instruction; and sertion. Carlidge testified that the decision to include specialized spaces is up to the f) Media center. individual district; some I and J districts do 3. All middle schools or elementary not have specialized spaces because they, as schools housing grades 7 and 8 include: a matter of educational policy, believe that all a) Adequate classroom space for class programs should be delivered in the class- sizes of 23; room or, as enrollments have grown, have b) Science demonstration room(s) with converted specialized spaces into classrooms. demonstration table and perimeter student On the other hand, Carlidge never has de- areas with water for all students in grades signed a new school without specialized 7 and 8; spaces for a gymnasium, music room, art room, computer lab, media center, and cafe- c) Cafetorium and/or gymnasium with torium. stage for breakfast, lunch, large group pre- sentations, instrumental music and student Physical classroom sizes were not listed in performances; and the Facilities Report. However, based on figures provided by DOE to Vitetta Group d) Media center. for its facilities assessment, ‘‘adequate class- 4. All high schools include: room space’’ is 950 square feet for pre-kin- a) Adequate classroom space for class dergarten and kindergarten classrooms, 800 sizes of 24; square feet for elementary and middle school b) Art room; general classrooms, and 750 square feet for c) Music room; high school general classrooms. (DF–2). Several witnesses involved with new school S d) Science demonstration room(s) for 626 construction testified these spaces were ade- general science with demonstration table quate for the State’s recommended class and perimeter student areas with water; sizes. For example, comparing these square e) Science Lab(s) with gas, water and footage recommendations to those for new appropriate ventilation for chemistry and construction in Paterson and Perth Amboy, physics; the S 627DOE recommendations were some- f) Auditorium with stage for large group what smaller but the number of students per presentations, instrumental music and stu- class also was smaller. Perth Amboy uses a dent performances; guideline of 1100 square feet for twenty stu- g) Cafeteria for breakfast and lunch; dents in pre-kindergarten, 1165 square feet h) Gymnasium with bleachers and lock- for twenty-five students in kindergarten, and er rooms; and 850 square feet for twenty-five students in a general classroom. Paterson uses 1000 i) Media center. square feet for pre-kindergarten and kinder- [New Jersey State Department of Edu- garten, 900 square feet for grades one and cation, A Study of School Facilities and two, and 800 square feet for other standard Recommendations for the Abbott Dis- classrooms. tricts (Facilities Report) 17–19 (Nov. Plaintiffs want the State to adopt guide- 1997).] (DF–1). lines for new facilities construction that mir- According to DOE, ‘‘[t]here appears to be ror the guidelines in Perth Amboy and in no empirical research that directly estab- South Brunswick, an I district. In those lishes a cause and effect relationship or cor- districts, separate spaces are provided for an relation between academic performance and art room, music room, gymnasium, and cafe- the presence, absence or configuration of torium at the elementary and middle school ABBOTT BY ABBOTT v. BURKE N. J. 523 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued levels. Plaintiffs contend that lack of special- required programs could be delivered in the ized spaces does impact the ability to deliver current facilities. effective educational programs. Currently, the State requires elementary students to C. Facilities Improvement Plan have 150 minutes of physical education class To conclude the Facilities Report, DOE per week. Depending on the size of the proposed a facilities improvement plan con- student body, an elementary school well may sisting of a facilities management plan, an need a dedicated gymnasium to fulfill this oversight plan, and recommendations for requirement rather than an all-purpose room construction management and financing. which serves as a gym, cafeteria, and audito- (DF–1). Plaintiffs did not question DOE’s rium. Schools also are required to have a proposal; however, recommendations for separate health unit with a nurse’s area. construction management and financing are N.J.A.C. 6:22–5.4(b)(9). only preliminary. DOE admitted that fi- nancing is outside of its normal expertise and Plaintiffs emphasized the need for separate will rely on the State to provide appropriate music and art rooms at all levels. Willa financial advice and management for any Spicer, Assistant Superintendent for Curricu- funding mechanism. lum and Instruction for the South Bruns- As part of the facilities management plan, wick 13 public school district, testified about each Abbott district will be required to sub- the need for separate music and art rooms at mit a five-year plan by January 1999 that the elementary level. Core Curriculum ensures Standard 1.3 for Visual and Performing Arts each school building is safe and healthy, in requires all students to ‘‘utilize arts elements compliance with the Uniform Construction

S 628and arts media to produce artistic prod- Code, conducive to learning and adequate ucts and performances.’’ The cumulative for the delivery of programs and progress indicator for grade four states that S 629services necessary to enable all students students ‘‘[a]pply elements and media com- to achieve the Core Curriculum Content mon to the arts to produce a work of art.’’ Standards, and that sufficient instructional (D–12). Spicer testified that if students are space is available within the district to actually to produce art and music, they need house all resident students. a dedicated space, rather than ‘‘art-on-a-cart’’ [Facilities Report (DF–1) at 29.] or a music teacher who travels ‘‘room-to- The district plan should be prepared with room.’’ the assistance of a facilities advisory board consisting of parents, teachers, school-level DOE has defined ‘‘educationally adequate administrators, architects and engineers, facilities’’ in the context of compliance with community representatives, and a staff per- the core curriculum content standards. The son from the DOE Program Review and standards set goals for program delivery; Improvement Office. In conjunction with however, the standards do not measure stu- DOE, the district should explore creative dent achievement. When asked whether options to satisfy its capacity needs such as DOE’s minimum facilities requirements extended school years and joint use of mu- would enable his students to meet the stan- nicipal and privately-owned facilities. The dards, Dr. DeTalvo of the Perth Amboy district also should hire a demographer to school system said that he did not know. He perform a five-year enrollment projection to considered the standards only as a set of determine if capacity is sufficient. The dis- expectations; he needed the related frame- trict then should contract with an educational works and assessment tools to determine if facilities planner and licensed architect to

13. South Brunswick is an I district which spends $8664 for the 1997–98 term, and the State’s $6899 per high school pupil. See Jenny De- spending of $9700 per pupil in the Newark Monte, ‘‘Money Isn’t Everything,’’ New Jersey ‘‘takeover’’ district for the same term. See Ab- Monthly 46 (September 1997). This contrasts bott IV, 149 N.J. at 192, 693 A.2d 417. with the I and J average for parity purposes of 524 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued conduct a study of existing facilities and pro- program. The plan is to phase-in construc- pose alternatives for meeting the require- tion over a three-year period, with priority to ments of DOE’s management facilities plan. health and safety projects, early childhood The district must prepare educational specifi- programs, and other required supplemental cations, schematic plans, and enrollment pro- programs. Hespe indicated that educational jections to submit to DOE as an addendum specifications will include a model of a proto- to the plan. The district plan also must typical school which incorporates DOE’s min- correct all deficiencies revealed in the facili- imum requirements for facilities. ties assessment performed by Vitetta Group. Rafael Perez, Executive Director of the As part of its oversight plan, DOE intends New Jersey Educational Facilities Authority (EFA), testified about DOE’s proposed fi- to develop facilities standards for all schools nancing plan which would require the EFA by January 1998, upon release of this court’s to issue bonds on behalf of the Abbott dis- report on supplemental program require- tricts. Although this is not the only available ments. DOE will review all district facilities funding mechanism, Perez believes this is a plans submitted to assure compliance with good route for New Jersey. Other states the educational adequacy guidelines. On a have raised funds for local primary and sec- continuing basis, DOE staff will monitor ondary educational construction projects progress against the plans to assure proper through increases in sales taxes, income tax- execution. es, and various legislative appropriations, in To determine best practices for construc- addition to bonding. tion management and financing in New Jer- The EFA, N.J.S.A. 18A:72A–1 to –58, was sey, DOE reviewed educational facilities created to assist public and private higher practices in four other states—Maryland, educational institutions raise funds for Pennsylvania, South Carolina, and West Vir- S 631construction of dormitories and other edu- ginia. Based on this review, DOE re- cational facilities. The EFA issues bonds in comSmended630 the following elements of a its own name to finance these construction comprehensive construction management and projects; the bonds are secured by a trust financing plan: agreement under which revenues or other 1. Long-term planning through a master moneys are pledged by the institutions. facilities plan for each district incorporat- N.J.S.A. 18A:72A–9. EFA bonds are not a ing best practices standards and other op- debt, liability or pledge of faith and credit of tions to addressing [sic] facilities needs the State. N.J.S.A. 18A:72A–10. EFA oper- (i.e., inter-district facilities); ations are financed through charging a fee on each bond issue; EFA is not financed 2. Public participation in the planning through State appropriations. process; Under DOE’s proposal, Abbott districts 3. Close participation of state technical would issue bonds to EFA through a private staff; placement. The dollar amount of the bonds 4. Centralized construction management; would be limited to the level of ‘‘efficient 5. Central state financial management; funding’’ approved by DOE; funds for any 6. Needs-based funding formula which expenditures in excess thereof would have to provides aid only for approved capital pro- be raised by the districts themselves. EFA ject costs; then would issue its bonds in a public offer- 7. Comprehensive mandatory mainte- ing using the district bonds to secure the nance plan. debt. EFA does not require statewide voter approval to issue bonds because they are not [Facilities Report (DF–1) at 33.] considered general obligation bonds of the David Hespe, Assistant Commissioner for State. Although the State is not obligated Division of Executive Services, DOE, testi- legally to provide debt service for bonds is- fied about implementation of these steps to sued by the EFA, it essentially is obligated achieve an adequate and efficient facilities financially and morally because the State’s ABBOTT BY ABBOTT v. BURKE N. J. 525 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX I —Continued credit rating would suffer severely if EFA Debt service on $2.4 billion over thirty years defaulted on its obligations. at an assumed rate of 5.5% is about $165 According to Perez, the EFA is a good million per year. vehicle for financing construction projects in the Abbott districts. Because they are prop- VIII erty-poor, Abbott districts have great difficul- ANALYSIS OF FACILITIES ASPECT ty issuing bonds in the open market; even if This court’s analysis on the facilities aspect they could go to the bond market, the bonds is based principally on the testimony taken would carry a substandard rating and high over five hearing days and review of the interest rate. The EFA has the needed ex- twenty-five exhibits. The State’s Vitetta pertise in accessing financial markets, unlike Group study showed a need for 3137 addi- individual school districts which may access tional classrooms to service the State’s pro- the market only once every ten to fifteen posed whole-school reform program. These years or more. Issuing bonds through the primarily were needed at S the elementary EFA, after pooling underlying bonds from 633 school level. The total estimated cost to several districts, would reduce duplicative expand the capacity of the Abbott district costs of issuance such as attorneys’ and un- schools to comply with the State’s proposal derwriters’ fees. EFA bonds are rated and to repair or replace existing facilities slightly lower than State general obligation comes to about $2.4 billion when all relevant bonds, resulting in a higher interest rate costs are projected. This cost related only S of only .1 or .2%. In addition, EFA would 632 to classrooms. Costs for other ‘‘core’’ com- obtain bond insurance to insure a high rating ponents such as gymnasiums, media centers, if that benefit outweighed the cost. EFA offices, and small-group instruction centers never has had a problem selling its bonds on were not included. the open market. Bond proceeds would be placed with a We conclude that these further costs can trustee and invested pending disbursement. be established only after a detailed school- Funds would be disbursed to the districts by-school evaluation, much more intense than only upon submission of certificates of com- the Vitetta study. The very difficult and pletion to the EFA and confirmation by EFA site-sensitive decisions on renovation versus personnel that funds have been spent appro- new construction further cloud attempted priately. Any cost overruns would be ab- cost estimates for individual districts. sorbed by the EFA. Currently, the EFA Plaintiffs’ witnesses disagreed with DOE’s does not provide construction management; facilities recommendations, primarily because however, it has done so in the past and would the recommendations did not include sepa- be able to manage construction in the Abbott rate spaces for all specialized programs. districts with additional personnel. Because DOE’s proposal was relatively incomplete all financing costs are the responsibility of and plaintiff did not offer a viable financial the EFA, the only risk to the Abbott districts alternative which included facilities require- occurs if the construction is substandard or ments for any supplemental programs in the not completed on a timely basis. There is Abbott districts. one obstacle to utilizing the EFA for financ- In accordance with this court’s program ing construction in the Abbott districts; the recommendations, additional classroom space statute must be amended to allow the EFA is needed to accommodate three- and four- to finance projects other than higher edu- year olds in full-day pre-kindergarten pro- cation. grams. Based on current kindergarten at- As noted, the report by Vitetta Group indi- tendance, an estimated 44,000 three- and cated that facilities improvements in the Ab- four-year olds reside in the Abbott districts; bott districts will cost at least $1.8 billion; at an estimated participation rate in pre- including provisions for soft costs and contin- kindergarten programs of 75%, space for gencies, the estimate increases to $2.4 billion. about 33,000 students is required. (Odden at 526 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX I —Continued APPENDIX I —Continued 14.) The estimated cost of constructing $2.7 to $2.8 billion range. This does not these classrooms is $260.6 million. include any necessary construction of new This cost was estimated based on DOE buildings. Nor does this estimate allow guidelines for class size and square footage credit for already authorized capital funding. and cost data provided by Vitetta Group. To Any more precision is not possible at this accommodate 33,000 students at fifteen stu- time and on this record. dents per classroom, 2200 classrooms should S CONCLUSION be provided. Each classroom is 950 square 635 feet times a ‘‘grossing factor’’ of 1.33, or The recent 270–page national study on ‘‘Quality Counts ’98—The Urban Challenge— 1263.5 square feet. S 634Vitetta Group esti- mated the cost of new construction at $125 Public Education in the 50 States’’ in Edu- cation Week (January 8, 1998), meticulously per square foot; 2200 classrooms at 1263.5 describes the national dimension of the prob- square feet per room and $125 per square lems of urban education, state-by-state. The foot totals $347.5 million. Given that DOE’s study fully demonstrates that ‘‘urban stu- estimate already provides for half-day pre- dents perform far worse, on average, than school for four-year olds, total cost should be children who live outside central cities on reduced by 25%, for a net cost of construc- virtually every measure of academic perfor- tion of $260.6 million. Adding this cost to mance.’’ Id. at 9. New Jersey’s big-city the Vitetta Group baseline estimate of $2.4 (Camden, Jersey City, Newark, Paterson) billion, plus an indeterminate amount for problems are documented fully in the study. ‘‘core facilities’’ costs, a total of $2.7 to $2.8 Id. at 11, 63, 65, 67, 79 and 204–06. billion for facilities improvements and expan- sion may well be in order. This court finds that the editors fairly describe the difficulties inherent in the urban The State proposes comprehensive assis- education problem when they say: tance to the Abbott districts through con- Many of the intractable problems that struction management and financing. The plague city schools are deeply rooted in the Educational Facilities Authority, N.J.S.A. poverty, unemployment, crime, racism, and 18A:72A–1 to –58, could, if amended, be used human despair that pervade the neighbor- to secure financing with the State-facility- hoods around them. Too often, teachers backed bonding capacity. This would doubt- and administrators are asked to solve less be considerably less costly than local problems that the public and its leaders in bond issues, which might never be undertak- statehouses and city halls have lacked the en anyway in these credit-poor Abbott dis- will and courage to tackle. tricts. Perth Amboy apparently was an ex- Some urban districts are rising to meet ception—the district was debt-free when the the enormous challenges before them. exceptionally vigorous Dr. DeTalvo arrived in Here and there, test scores are climbing, 1991 and pursued facilities improvements dropout rates are falling, order is re- with the backing of a cooperative school turning, and children are learning. Invari- board and a sophisticated architectural con- ably, in these pockets of success we found sultant. bold leadership, imaginative initiatives, and The facilities assessment conducted by the extraordinary efforts by individual teach- State points out much of the problem. ers and administrators. About 4800 classrooms are needed, if the full- But the problems still overwhelm the day two-year early childhood program is un- progress. And urban schools are fighting dertaken (estimated as 3137 additional class- a battle they cannot win without strong rooms projected by Vitetta Group plus 1650 support from local, state, and federal polit- classrooms for three- and four-year olds, ical leaders, and from voters and taxpayers recognizing that half-day preschool for four- outside the cities. If the states, in particu- year-olds is included in the Vitetta estimate). lar, do not accept this challenge, the con- The cost of the proposed improvements, ren- tinuing national movement to improve ovations and additions likely will climb to the schools will fail. Today, one out of every ABBOTT BY ABBOTT v. BURKE N. J. 527 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX I —Continued APPENDIX II —Continued

four American children—11 million young S 637During these hearings, the court was pre- people—to school in an urban district. sented with two quite different visions about [Id. at 6.] how to address all of the issues involved. The State essentially presented a compre- As Education Week demonstrates, the prob- hensive, K–12 school strategy, with class lems of urban education are national, not sizes of 15 for preschool and for reading, peculiar to New Jersey. The crisis is obvi- supplemented by a half-day of preschool for ous; the solutions are elusive. four-year olds, and a small referral program for social and health services students might S 636APPENDIX II need at all school levels. The Law Center (referred to as Appendix A in presented a much more elaborate approach, Judge Michael Patrick King’s Report and which would essentially create full day, full Decision year, community and family schools, with full dated January 22, 1998) day preschool for three- and four-year olds, class sizes of 15 for all programs from pre- Recommendations for Resolving school through grade 3, a comprehensive New Jersey Abbott v. Burke IV, after mechanism to locate an array of health, so- the November and December 1997 Hear- cial, family and nutritional services on all ings school sites, together with after school home- work help at all school levels, and school-to- by work, school-to-college and job placement Allan Odden programs for high school students. In short, the court has before it two different visions University of Wisconsin–Madison of the scope of programs to be included in the resolution of what many years ago began Submitted to Judge Michael Patrick King as a school finance court case, and of how The Superior Court of New Jersey dramatic improvements can be made in the performance of students now attending December 30, 1997 schools in the 28 Special Needs Districts Recommendations for Resolving the (SNDs), for which the system has been found unconstitutional. New Jersey Abbott v. Burke IV, Case, after the I would characterize the differences in the proposals in the following additional ways. November and December 1997 Hearings The Law Center essentially sees the next step as identifying more, largely non-edu- by cational, K–12 related programs, and having Allan Odden the State fund them. Their assumption at University of Wisconsin–Madison this point is that the education program in the I and J districts is the de facto standard, New Jersey is at a cross roads in resolving not to be analyzed or assessed at this point, its school finance system, which literally has and that the court’s job is to identify an been a point of contention for over a quarter array of additional programs, largely social of a century. The November/December 1997 and other supports, that would enhance the hearings in the resolution of Abbott v. Burke likelihood that student achievement would be IV hopefully signal the last few steps in enhanced if all these programs were imple- settling the important issues that are in- mented. Yes, the Law Center proposed full volved in this complex and comprehensive day preschool for three- and four-year olds, case. One could write a book of comments and class size reductions to 15 for students and recommendations. But there is not time K–3, but it made no recommendations on the for that. What follows is a succinct summary regular school program (again taking the I of key issues and my recommendations based and J suburban strategies as the de facto on my research, my reading of research, and strategies for the urban S 638districts as well) testimony in the hearings on these issues. and basically argued that in order for stu- 528 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued dents in the SNDs to do well in school—to specific, comprehensive, and highly success- achieve to the new New Jersey curriculum ful approach to teaching students how to standards—they need to be surrounded by a read, write and communicate effectively by series of elaborate non-educational supports. the time they complete grade 3. Put differ- Thus, the Law Center argued that the reso- ently, the State’s proposal has an effective lution of this case requires the State to co- literacy program at its core, and nearly ev- locate at schools social, family, health and eryone in education, as well as most policy- other social welfare type services, nutritional makers, understand that unless students can services, homework help services, as well as read and write proficiently by grade three it college and work placement at the secondary is very difficult for them to perform well in level. At this point in the process, the Law any subject at any subsequent year of school. Center raised no substantive issues about the Further, the State’s proposal also has a prov- I and J instructional program nor whether en effective elementary school mathematics those strategies and structures—which work program that accompanies the reading pro- with suburban, economically advantaged stu- gram, so their proposal is designed explicitly dents—are appropriate for the poor, econom- to produce proficiency in both literacy and ically disadvantaged students in the SNDs. numeracy by grade 3 for all SNDs’ children, The State took an entirely different tack. and thus lay the needed foundation for all The State took seriously the shortcoming of subsequent learning. the original proposed school model in CEI- The fact is that a good reading and mathe- FA, which was not only not related to any matics program cannot be assumed, nor effective model for students in the SNDs but would the reading and mathematics pro- also not related to any effective school model grams in the I and J districts likely be very for any students, and decided to identify a effective in the SNDs. All the social sup- comprehensive, whole school model that was ports in the world will not help students read specifically created for the particular needs and compute unless a solid reading and of economically disadvantaged, largely mi- mathematics program drives the early ele- nority students in urban schools, essentially mentary school curriculum. If there is one the vast bulk of students in the SNDs. By area in which the research center with which taking this approach the State also implicitly I am affiliated agrees it is that the curricu- concluded that the specific educational and lum and instruction programs is what mat- program strategies in the I and J districts ters the most in terms of student achieve- would not be appropriate for the students in ment; all other issues are secondary, even the SNDs and so sought to determine how for students in high poverty urban schools. the average level of money in those districts, So the State has at least implicitly decided now also the average level of base money in that now is not the time to just add non- the SNDs, could be used but in the service of educational programs and to get to instruc- a comprehensive school program designed tion later, but that now is the time to rebuild specifically for SNDs’ students. ‘‘from the ground up’’ the whole notion of In addition, the State has taken the position what an effective elementary, middle and that the real purpose of the 27 years of high school is in the SNDs districts and to litigation over New Jersey school finance is cost out that model, and then to compare not just about providing more money to some those costs to what is considered across the districts, though money is certainly central, country a very generous budget—the aver- but it is about how to design an education age spending in the I and J districts. More- system that can be successful in teaching over, State testimony established that, under New Jersey’s students, particularly those in current parity requirements, any revenues the SNDs, to the State’s curriculum and provided to the SNDs that were not needed student performance standards. More spe- to fund the proposed school design would cifically, the State’s S 639approach is grounded stay in the local school, i.e., would not be in an elementary school strategy that has a taken back by the State. ABBOTT BY ABBOTT v. BURKE N. J. 529 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued

S 640Largely because of its focus on curriculum 2. Require schools to adopt some version of and instruction, particularly in reading and a proven effective, or likely effective, whole mathematics, the decision to propose a com- school design as the basis for using those prehensive, cohesive, whole school effective dollars, with the Success for All/Roots and model as the basis for considering education Wings program the de facto or presumptive costs, and the link to a school finance system, elementary school model. The Success for I generally support the approach taken by All/Roots and Wings school model turns out, the State but, as indicated below, I would at this point in time, to be the most expen- augment it with a more ambitious set of sive school model in the country (Odden, support programs, though not as ambitious 1997), so if this is the de facto model, all as those proposed by the Law Center. other school models should be affordable as well, given the above base budget. The State’s approach to education and school In this light, it simply is an exaggeration at finance reform is one that I have addressed best to say the State, by offering Success for in several of my writings during the past All/Roots and Wings, is trying to propose a several years. In a recent paper, my col- school finance and education reform ‘‘on the league at the University of Wisconsin–Madi- cheap.’’ The State not only picked the most son, William Clune, and I (1997) argue that expensive whole school model that currently traditional school finance structures, such as exits (Odden, 1997; King, 1994), but also those in New Jersey and all other states, are they expanded every element of the model. aging and in need of re-engineering. More- For example, the standard model assumes a over, in a forthcoming book entitled Funding class size of 25, while the State proposed a Schools for High Performance (Odden & class size of 21. The standard model as- Busch, 1998), I argue that school finance sumes four tutors for a school of five hun- funding levels should be determined by first dred with nearly all students eligible for free starting with an effective whole school de- or reduced lunch; the State model proposes sign, that school finance structures and fund- 5.5 tutors. The standard model assumes a ing levels should start with what works at full day kindergarten but does not require the school level and provide to school sites any preschool, while the State model propos- funds to cover the costs of those schoolwide es a half day four-year old preschool pro- strategies. Thus, my professional opinion is gram (which I think should be expanded but that the approach taken by the State, if fully it nevertheless is more than the standard and faithfully implemented, would represent Success for All/Roots and Wings model). the cutting edge of re-engineering school fi- The standard model assumes a part time nance to the purposes of standards- and family liaison or a full time para-professional school-based education reform, the objective parent liaison, while the State model not only of which is teaching all students, including proposes a certified professional as the fami- low income students, to high standards. ly liaison, but goes beyond that and proposes Thus I would recommend the following: a full, five member family, health, and social services team. The standard model assumes 1. Provide the SNDs with the average no technology but the State model includes spending of the I and J districts during the substantial technology. The standard model 1997–98 school year, with at least inflationary assumes a full-time, schoolwide instructional adjustments in subsequent years. Rule ex- facilitator, and the State model not only pro- plicitly that this is the base funding; put poses that position but a technology coordi- another way, base funding would continue to nator as well. The standard model assumes include what is called ‘‘parity’’ funding this about $65,000 for professional development school year. Of course, the Supreme Court and materials, while the State has proposed must decide whether future parity funding nearly twice that amount. So the State for SNDs means the amount per pupil in S 642has taken the best and most solid, re- 1997–98 inflation S 641adjusted, or whether search-proven effective, urban district ele- parity funding must track spending of I and mentary school model in the country and J districts every year. enhanced nearly all its key features. The 530 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued proposal is a strong, expensive, substantive Goertz in costing out the Law Center’s plan, proposal which could serve as a model for the use a salary figure of about $40,000, or about rest of the country. $47,200 for salaries and benefits; this Further, most of the elements of the pro- amount equates to about 8.5 professional posed Success for All/Roots and Wings model slots ($400,000 divided by $47,200). So how can be found in some if not many of the I and could those teacher positions be used? Well, J elementary schools, so the program can use could vary by school. Schools could hire legitimately be simultaneously considered an art, music and physical education teacher, both a regular education program (reflecting if they wanted those specialists, and wanted I and J practices) and a supplemental pro- to use their teaching time as a way to pro- vide ‘‘prep’’ time for the regular classroom gram, as plaintiffs’ expert Dr. Margaret teachers. They could reduce class sizes to 15 Goertz so recognized. Many I and J districts in grades 1–3; that would require another 3 have instructional facilitators, which is an teacher slots. Or those three teacher slots element of the proposed model. Many I and could be used for more tutors, if that were a J districts have some type of reading tutors, more effective way to insure that all students often Reading Recovery tutors, and individu- achieved to the curriculum standards. That al tutors are part of the proposed model. would leave 2.5 teacher slots left. Those Many I and J elementary schools have full could be used for either special education day kindergarten and some amount of pre- requirements not covered sufficiently by the school for four-year olds, which are parts of inclusion and neverstreaming approach of the proposed model. Most have substantial Success for All/Roots and Wings, or for ESL technology and a technology coordinator. services to limited English proficient stu- Some even have family outreach persons, dents. In short, the $400,000 is not superflu- which also is part of the proposed model. ous money; it could and should be used for While I doubt that any I and J school has the other important school needs, some not cov- Success for All/Roots and Wings model, be- ered by the proposed model, some perhaps cause it is a model explicitly designed for required by the large number of State curric- urban schools with high concentrations of low ulum standards, and some for specific needs income and minority students, the point is that would vary by school. that the model includes many elements that today are part of the regular elementary The fact that there is sufficient money in the school program in I and J districts, which is I and J average budget to fund such an elaborate and relatively high cost school pro- an issue that emerged several times in the gram should come as no surprise, and did not court hearings. come as a surprise to me. First, New Jersey Further, despite these augmentations of an is one of the highest education spending expensive model, and despite costing out all states in the country, and the budget provid- staff at the salaries of the I and J districts ed to the SNDs is the average of the highest (i.e., salaries above what SNDs actually pay) spending districts in the State. So the base the illustrative school budget shows that a budget, by most comparative standards, is typical school of five hundred students would high. Second, as I and others have shown in still have around $400,000 in additional unal- many recent studies (Miles, 1996; Miles & located resources to target to additional Darling–Hammond, 1997; Odden, 1997; Od- needs. If the court were to mandate that den & Busch, 1998, forthcoming), many tradi- parity money has to remain in the system, tional uses of resources—- e.g., large num- which I would recommend and which the bers of education specialists working outside Commissioner’s testimony so stated was the the regular classroom, instructional assis- intent of the State, then the question is tants, assistant principals—S 644appear to be whether these dollars are S 643simply excess or ineffective and inefficient use of resources, whether there are reasonable ways they and new school strategies and designs often could or should be used. I would argue the reallocate these resources to different and latter. First, convert the money to profes- more productive purposes. Given the high sional staff slots. Following the approach of budget in the SNDs (the I and J budget), ABBOTT BY ABBOTT v. BURKE N. J. 531 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued there simply are more of these resources in Stringfield, 1997; Hirsch, 1996; Lamon, et the typical school and none of these re- al., 1996; Sizer, 1996; Stringfield, Ross & sources are used, except for instructional Smith, 1996; The Edison Project, nd). The aides in pre-school and kindergarten, in funds should be sufficient for any and all of these models. Roots and Wings/Success for All or most other whole school designs either. Thus, I In addition, the State said that schools could would have expected substantial opportunity propose their own designs. I would add to for large scale resource reallocation in the that that such ‘‘home grown’’ proposals would SNDs’ schools, given the high overall budget, have to identify research support for each of and that is what the illustrative school bud- their key elements and programs. For ex- get in the State proposal shows. ample, Fashola and Slavin (1997) and Her- man and Springfield (1997) have recently Further, the I and J average budget per produced a research summary of effective pupil provides the SNDs even additional pos- and replicable programs, that range from sibilities for purchasing more resources. Re- schoolwide strategies such as Success for All, call that the illustrative budget proposed by Accelerated Schools and Comer Developmen- the State used the average salaries in the I tal Schools, to reform networks that focus on and J districts as the salary for each profes- particular grade levels or subject areas (such sional staff. Even with those salary levels, as mathematics or writing), classroom orga- there was still $400,000 in unallocated funds nization and management strategies that can in the illustrative budget. But, the actual be used with a variety of specific curriculum salaries in the SNDs are below those in the I (such as cooperative learning, non-graded and J districts, so the illustrative budget classrooms), and curriculum specific pro- actually overestimates today’s costs of imple- grams such as DISTAR reading, reciprocal menting the State’s proposed whole school teaching (reading), cognitively guided in- design. If the proposed design were costed struction (mathematics), and Chicago Math. at the average actual salary of the SNDs, Most of these programs are both part of the there were be additional unallocated funds, regular instructional program and provide over and above the $400,000. These dollars supplementary services for slower achieving could be used to raise teacher salaries in the students from low income backgrounds. The SNDs, and might best be used for that pur- point is that each elementary school needs to pose. They also could be used to hire more identify some cohesive set of academic pro- teachers, again to reduce class size or to grams that research has shown to be replica- provide other services. The point is that the ble and effective in helping elementary stu- actual dollars provided to an average SND dents in urban districts learn to the rigorous elementary school not only are sufficient to standards of the regular curriculum and in- fund the expanded Success for All/Roots and structional program. Wings program, but also provides an unallo- At the middle school level, sites should also cated sum of dollars that substantially ex- need to identify their overall strategies for ceeds $400,000, allowing such schools to fi- the regular program, as well as adopt effec- nance additional strategies complementary to tive supplemental academic programs. the whole school design. Again, Fashola and Slavin (1997) summarize As was also clear by the State proposal, the best of what is know about such pro- schools also could select models different grams, and their per pupil costs are similar from Success for All/Roots and Wings, and to those for elementary students. In addi- there are several possibilities that could in- tion to these programs, there are S 646several clude Comer Schools, AccelerSated645 Schools, suggestions for the overall organization and Coalition Schools, several other models that structure of effective middle schools (Carne- are part of New American Schools, Edison gie Council on Adolescent Development, Schools, ED Hirsch Core Knowledge 1989; Superintendents Advisory Task Force Schools, etc. (see for example, Comer, et al., on Middle Schools, 1989). Further, Slavin 1996; Finnan, et al., 1996; Herman & and his Johns Hopkins Center have devel- 532 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued oped both a middle school version of Roots lems. Alternative schools usually have their and Wings and a different middle school own physical sites, different and away from model, called Talent Development Middle the high schools from which they receive the School. In addition, each of the New Ameri- bulk of their enrollment. Research shows can Schools designs offer middle schools that alternative schools produce considerable models (Stringfield, Ross & Smith, 1996) as success (Raywid, 1994). do Hirsch (1996), Sizer (1996) and the Edison 3. Full day kindergarten, Research is very Project. clear that full day kindergarten for students At the high school level, sites need to engage from low income backgrounds has a positive in the same process of selecting high quality, and significant impact on student academic proven effective programs that help high achievement in the early academic years school students achieve to high State stan- (Carnegie Task Force on Learning in the dards. Most individuals suggest that in addi- Primary Grades, 1996; Slavin, Karweit & tion to the core curriculum, supplemental Madden, 1989; Slavin, Karweit & Wasik, high school strategies could include smaller 1994). I would recommend that full day kindergarten be provided and funded by the alternative schools, some strategy to reduce State. secondary school size (Lee & Smith, 1997), school to work programs, and school to col- Most states that allow districts to provide full lege programs. In nearly all instances, day kindergarten finance the program by though, these programs can be funded with providing the average costs for the extra half the regular high school per pupil dollar bud- day, i.e., by letting districts count students as get. In terms of the core curriculum, re- 1.0 rather than 0.5 students for the school aid formula. The State, however, has proposed search is showing that a ‘‘constrained’’ curric- a somewhat complex and bizarre way to cost ulum, i.e., one that requires students to take out and fund the additional half day of kin- academic courses produces higher levels of dergarten. First they argue the State academic learning (Lee, et al., 1997) and that should cover only so-called marginal costs— all students can learn such curriculum if it is the extra staffing and materials. This would started early and taught at an appropriate be fine if only 2–3 classes were affected, but developmentally rate (Smith, 1996; White, et the State is expanding all four kindergarten al., 1996). Slavin’s center has created a Tal- classes and adding preschool as well. These ent Development High School Model, which are major program expansions and need to breaks large high school buildings into be costed with average rather than marginal smaller independent high schools is showing costs. Thus, I would recommend that the significant promise for success, and high State finance a full day kindergarten pro- school models also are offered by New Amer- gram simply by allowing districts to count a ican Schools (Stringfield, Ross & Smith, kindergarten child as a 1.0 pupil (as com- 1996) and at least Hirsch (1996), Sizer (1996) pared to 0.5 for a half day program) for the and the Edison Project. regular school finance, foundation program. Alternative schools generally are small edu- This method would cost about $95.3 mil- cational programs (usually 200–300 students) lion (22,000 kindergarten children times created for students who have difficulty with $4332, half the foundation amount of $8664) the more impersonal environment of the typi- above current funding for half-day kinder- cal large high school. Many alternative garten. schools cater to students who have a combi- 4. Full day, preschool for children age 4 nation of learning, behavior, and family prob- and age 3. Although the State recognized lems and need a supportive learning environ- the positive impacts of preschool programs ment. The small size helps alternative S 648on low income children aged both 3 and 4, S 647schools provide a more ‘‘personalized’’ ed- they only proposed a modest, half day pro- ucational environment. Teachers in alterna- gram for four year olds. This recommenda- tive schools tend to teach as well as work tion should be strengthened to a full day with students on their non-education prob- program for all children aged 3 and 4, whose ABBOTT BY ABBOTT v. BURKE N. J. 533 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued parents want them enrolled in a program. beginning of the Whitman Administration Research is very clear that high quality, pre- but funding for it has been decreased or school programs for students from low in- eliminated recently. I believe the Early come backgrounds have discernible, positive, Childhood Group of the NJ Department of and significant impacts on student academic Human Services has conducted evaluations of achievement in the early academic years this program and found it to be quite suc- (cites in addition to those provided by Bar- cessful. In short, New Jersey already has nett at the hearings: Carnegie Task Force developed an effective programmatic ap- on Learning in the Primary Grades, 1996; proach for high quality, early childhood edu- Slavin, Karweit & Madden, 1989; Slavin, cation for children aged 3 and 4 in urban Karweit & Wasik, 1994). Further, because districts; I would suggest that a program these programs increase employment, de- build on and scale up this initiative. crease welfare, decrease crime and decrease In terms of funding, it is my understanding other socially non-desirable behaviors in the that during its Good Start version, districts later adult life of children served, these pro- simply were able to count every child en- grams have large positive benefits versus rolled in the program as 1.0 pupil in the costs. This is precisely the kind of supple- regular foundation aid program, and that this mental education program in which New Jer- provided sufficient funding. Indeed, many sey should make significant investments; states across the country that are creating long term all costs will be more than re- and funding early childhood programs for turned. low income 4 and 3 year olds fund the initia- tives by simply including such students in the If the Court decided from the record in the pupil counts for the regular, general state aid court hearings that there is insufficient evi- program. I believe the Early Childhood dence for this recommendation, it could re- Group of the NJ Department of Human Ser- quire a full day of preschool just for four- vices has specific cost data, which the court year olds, or a full day of preschool for four might seek at some time. My belief is that year olds and just a half day for three-year the cost estimates will be in the same ball- olds. park as simply including the children so in- Although the federal Head Start program volved in the district’s pupil count for the could possibly provide some funding for this foundation aid program. program element, Head Start usually pro- Thus, the cost of this recommendation vides only a partial day program and funding would be $286 million ($8664 times 22,000 has been insufficient to provide a program four year olds plus $8664 times 22,000 three that meets standards for a high quality, ef- year olds, times an estimated 75 percent fective program (Carnegie Task Force on participation rate). Learning in the Primary Grades, 1996). Thus, the total extra costs for these early Funds for this supplemental program should childhood recommendations—full day pre- be sufficient for a program that meets either school for children aged 3 and 4 and the rigorous New Jersey early childhood edu- other half day for a full day kindergar- cation program standards or the standards ten—would be $181 million ($95.3 million that have been developed by the National for full day kindergarten plus $286 million Association of Early Childhood Education. for preschool for children aged 3 and 4, It turns out that New Jersey has developed a minus the $200 million in S 650ECPA money model early childhood education program which the State claims is already being and that meets high standards. It began S 649in will continue to be provided to the SNDs). the Kean Administration, called the Urban 5. Re class size reduction to 15. I basically Early Childhood Initiative, and was imple- view whole school reform and class size re- mented in Jersey City and Newark. It con- ductions per se (i.e., in and of themselves) as tinued in the Florio Administration, renamed alternative programs; you do one or you do the Good Start program. My understanding the other. You do class size reductions if is that the program also was continued at the you want to bet simply on lower class size 534 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued and use current school strategies; you do mental designs with random student assign- whole school reform if you think elementary ment to large or small class sizes, so even schools for urban kids, which do not work, this research base was a bit ‘‘light.’’ need to be rebuilt from the ground up, usual- Then in the 1980s both Tennessee and ly including only targeted class size reduc- Indiana conducted large scale, experimental tions, such as for reading in Success for studies of class size reductions (Achilles, All/Roots and Wings. 1996; Achlles, Nye & Zaharias, 1995; Ac- But first let me provide a short summary of hilles, Nye, Zaharius & Fulton, 1993; Finn & my version of the research on class size Achilles, 1990; Finn, 1996; Finn, n.d.; Fol- reduction. The first review of the class size ger, 1992; Tillitski, 1990; Word, 1990). The research was published in 1979 by Glass and Tennessee STAR study had three treat- Smith. They conducted a ‘‘meta’’ analysis of ments: reduced class sizes of 15, regular all studies. They concluded that smaller class sizes of 25 with an instructional aide, class sizes mattered, i.e., produced higher and regular class sizes of 25. The Indiana student learning, but not until class sizes Prime study had class sizes of 15 and regular were lowered to 15. class sizes of 25. Both included several thousand schools, and randomly assigned Subsequently, both Bob Slavin (1986, 1989, students to large or small classes. The 1990) and I (Odden, 1990) conducted a re- achievement effects measured were only for analysis of their work. We both did essen- mathematics and reading, in terms of the tially the same thing and came to the same published studies that I have read. But, conclusions. First, we said that it was not these are the kinds of studies one wants in wise for Glass and Smith to have included all order to determine an effect of some treat- studies in their review—studies that had ment—in this case, small class size. good experimental controls (so you could The results were robust. Students in the trust their findings) and those that did not. class sizes of 15 achieved at a higher lev- Second, therefore, we threw out all the stud- el—about 1/4 of a standard deviation—not ies that had no controls, or put differently, a tremendous improvement but a modest we retained only those studies with good improvement. Class sizes of 15 with an in- controls, and which focused on student aca- structional aide had a small but barely dis- demic achievement as the outcome variable. cernible improvement in performance, sug- Third, with that smaller set of studies, we gesting that adding an instructional aide in found that there was no study with actual a regular classroom produces little if any class sizes of around fifteen that produced achievement effect. The conclusion: reduc- improved student achievement. What we ing class size to 15 in grades K–3 could found was that class sizes of 25, 20 and 15 boost performance. produced virtually no impact on student The results showed, however, that the learning, but that very small class sizes— achievement effect came after the kindergar- namely one-to-one tutoring—did produce ef- ten year, i.e., achievement rose in grades 1, 2 fects and quite large effects. But when all and 3, after the small kindergarten class size, studies were analyzed together, the large but the small grade S 6521 and 2 class sizes did effect of the tutoring combined with the mini- not produce additional achievement bumps. mal or no effect of S 651the other studies re- This reality led some analysts to argue that sulted in an ‘‘average’’ effect beginning to the studies showed only that reducing class emerge around class sizes of fifteen. Since size to 15 in kindergarten is what these there were no studies of around fifteen that studies showed to be effective. It should be actually produced a student achievement ef- noted that kindergarten class sizes of 21 are fect, this finding was actually a statistical included in the State’s proposals, together artifact. So we concluded that the class size with an instructional aide that would provide studies that we had documented achievement a student-adult ration of 10.5 to one. Alter- effects only for one-to-one tutoring. None of natively, the resources for the aides could be these studies, moreover, were true experi- traded, pretty much even-up, for the addi- ABBOTT BY ABBOTT v. BURKE N. J. 535 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued tional teachers needed to reduce class sizes literacy curriculum program. Finally, the to 15 (without an aide) for all SNDs’ kinder- U.S. Success for All/Roots and Wings pro- garten classes. grams produces similarly large effects (Sla- But there is more to say. First, longitudinal vin, 1994; Slavin, et al., 1996). studies are showing that the impacts might In short, I do not recommend a separate and be larger than the original analyses, because additional program for reducing class sizes over the four years of small classes, some below 21 because: students left the large classes (so they were 1 the effect of small class sizes per se is lowered in size) and some students joined the modest small classes (so they were larger). When 1 assuming the parity money remains in the these anomalies were removed from the data, system, which I recommend and the State the achievement impacts rise sometimes to also proposed, there is sufficient unallocat- 1/2 a standard deviation, a fairly substantial ed money in the illustrative school budget impact. Second, in both the original and that schools could deploy to reduce class subsequent analyses, the impacts on minority size, so a separate and additional pot of students were larger, closer to 1/3 a standard money is not needed. Conversely, if the deviation and then subsequently to above 1/2 court wanted to accept the State proposal a standard deviation. Third, analyses by and also mandate smaller classes, it could Ron Ferguson shows that the impact on mi- decrease the $400,000 by the cost of three teachers needed to reduce class size to 15 norities, largely African–American students, in grades 1, 2 and 3. do not begin to appear until grade 2, which 1 the Success for All/Roots and Wings pro- argues more strongly for class size reduc- gram reduces class size to 15 or less in the tions for at least kindergarten through grade most important subject, reading, and the 2. Further, research is showing that the program produces an overall effect that is small class size effect on achievement is sus- 2–4 times larger than that of class size tained into the middle grades, i.e., students reduction per se (Hill & Holmes–Smith, in the small classes not only performed bet- 1997; Slavin, 1994; Slavin, et al., 1996). ter in elementary school, but also are achiev- 6. Summer School. I also would recom- ing at higher levels, compared to their peers mend that the State include some type of in larger classes, in middle school. Although summer school program. Since the children these latter comments are based only on the in SNDs’ schools have difficulty learning to Tennessee study, they are strong findings. high standards, every effort should be made Their strength comes from their evolving to provide them the extra time needed to from a real, randomized experiment. There learn to expected levels. Summer school for weakness is that they derive from only one many students would be well worth the in- study. vestment. As I recall, Goertz costed such a On the other hand, there are some less opti- program at about $100 million. mistic reanalyses of the STAR study (Hill 7. School–Based Youth Services. Finally, & Holmes–Smith, 1997). Interestingly, both the State and the Law Center proposed S 653these authors conclude that class size re- to address some element of the non edu- ductions per se produce only modest impacts cation needs of students in the SNDs, the on student achievement (a 0.2–0.4 standard State through a single person referral pro- deviation effect size), and that ‘‘other strate- gram and the Law Center through turning gies,’’ costing a similar amount as class size all schools into comprehensive family and reductions, produce much larger effects—0.5 community schools. My conclusion is that to 1.0 standard deviations. Interestingly, the State proposal was too lean and the Law these ‘‘other strategies’’ are an Australian S 654Center proposal too ambitious. I would version of the Success for All program, called propose something in-between, i.e., some the Early Literacy Project, which employs a strategy to have both a social service provi- school facilitator, Reading Recovery tutors, sion and social service referral program at or and a focused, comprehensive, specific early near each school site. Students in the spe- 536 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued cial needs districts need to have available at 1 in school child care for pregnant teens or near the school site an array of social 1 family planning services that help them deal with the health, 1 parenting education. family, and other non academic issues that This New Jersey program is recognized impact negatively on their academic perfor- throughout the country and has received the mance. There is an emerging consensus that Harvard Kennedy School Government Inno- the organizational structure for such services vative Programs Award. It is an approach is a location on or near school sites that to school-based youth services that deserves provide for ‘‘one stop’’ shopping for such to be scaled up and expanded to all schools in services (Adler and Gardner, 1994; Carnegie the special needs districts. Task Force on Learning in the Primary New Jersey also has created an elementary Grades, 1996; Kirst, 1992). The idea is not version of School–Based Youth Services, to have the education system fund all of the which provides: services but for the education system to pro- 1 mental health and family counseling vide an organizational arrangement in which 1 preventive and some primary health care the various social services, usually funded 1 with regular federal, state, and country re- an elementary version of substance abuse sources, are provided at one place in or near prevention and counseling school sites. The education system would 1 parental outreach provide a coordination and referral function, 1 after school and evening recreation as well as a case management function, in 1 homework help. which a student would have a case manager In the approximately 25 schools sites where orchestrate accessing the multiple services these programs exist, they have been funded required—health, family, social, etc. with a fixed amount of money at each school Fortuitously, New Jersey already has creat- site totaling about $200,000 in State funds ed a strategy for this type of social service and then $25–50,000 of in-kind school ser- provision in the special needs districts. The vices, for a total of $250,000. But this level program is called School–Based Youth Ser- of funding allows a full program for a school vices; it is run out of the Department of of only about 1200 students, or about $200 Human Services. It has been evaluated as per pupil. For larger schools, the program highly successful, is part of an ongoing evalu- funding needs to be larger and should be ation by the Annie Casey Foundation, and based on a per pupil amount rather than a has been replicated in Kentucky, Iowa, Cali- fixed amount by site that does not vary by fornia and the Beacon Schools in New York. size of school. Further, as the program pro- This program was discussed at length in the vides the full array and especially evening recent court hearings. programs and services, additional funding for janitorial and operational services are need- The secondary program makes all students ed. Thus, a good approximation of the type in a school eligible, provides services that of funding needed for the full program is in would be included in extended day programs, the neighborhood of $300 per pupil, which is and provides as core services: close to figures estimated for such programs 1 mental health and family counseling in the court hearings. 1 preventive and some primary health care This level of funds provides largely for the 1 employment services coordination of these programs, case man- 1 substance abuse prevention and counseling agement, and for some direct provision. But S 6551 information and referral S 656the bulk of the funding for the actual 1 after school homework help social services derives from governmental so- 1 after school and evening recreational pro- cial services department funds already in the gramming. system; the objective of this program is to Additional programs provided depending on have the individuals who provide such ser- need include: vices be located together in offices on or near ABBOTT BY ABBOTT v. BURKE N. J. 537 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued school sites so students can access the ser- least successful site efforts to some type of vices by going to one location in or around school reconstitution. school. Designs for school-based performance I would recommend this program only for awards can vary in their specifics but should middle and secondary schools, largely be- follow some common, general guidelines (Od- cause the family and health team in the den, Heneman, Wakelyn & Protsik, 1996; proposed Success for All/Roots and Wings Odden & Kelley, 1997). Emerging research elementary program provides a similar set of shows that these programs can be designed services, through the Family Health team in ways to add an extra motivational force for (which, as I recall, includes a social worker, teachers in schools to improve student aca- psychologist, nurse, family liaison and guid- demic achievement, including schools in ur- ance counselor). Should elementary schools ban communities (Kelley & Protsik, forth- want the New Jersey elementary School coming; Heneman, forthcoming; Kelley, Based Services program instead of the Suc- forthcoming). cess for All/Roots and Wings Family–Health Ongoing and new accountability programs team, they could use the funds for that pur- have the following design features: pose. 1. Student achievement in the core aca- Thus, the cost of this recommendation would demics—reading, writing, mathematics, pertain only to secondary school students. science, history/social science—forms the Assuming about 133,000 grade 7–12 students, core of the performance measure. So stu- at $300 per student, this recommendation dent achievement on a state test in these would cost about $40 million. subjects would constitute 75–80 percent of 8. Accountability. Few districts in New the performance measure. Jersey or across the entire nation perfor- For illustrative purposes, assume last mance manage their education system within year’s composite performance measure for an accountability structure. Yet, accounta- a school was that 40 percent of students bility matters; although many might argue were achieving at or above proficiency. that schools do not need to be held explicitly 2. Each school competes with itself and spe- accountable for results, people who under- cific targets are set for annual improve- stand performance management would argue ment. The most straight forward way to that accountability is critical for any organi- set a target is to specify that the perfor- zation, including schools, to become high per- mance measure to qualify for an award formance organizations—which is the long must be a certain percentage greater than term goal for all schools in the special needs the previous year, or so many percentile districts. Indeed, emerging research shows points higher. Sometimes the perfor- that accountability is a key element of effec- mance measure is linked to a proficiency tive restructured schools (Joyce & Calhoun, standard, and the target is linked to clos- 1996; Newmann & Wehlage, 1995; Odden & ing the gap between the actual score and the proficiency standard. Busch, forthcoming, 1998; Wohlstetter, Van Kirk, Mohrman & Robertson, 1997). For illustrative purposes, assume the proficiency standard is 85 percent. Then A full-fledged accountability system would the State might set a target of improving require: the gap between actual performance (40 1 core curriculum content standards percent) and proficient performance (85 S 6571 student performance standards percent) or 45 percent points, by five per- 1 a testing system measuring performance cent each year, or 2.25 percent points (45 to the curriculum and performance stan- point gap divided by 20). So the target for dards this year would be 40 v 2.25, or 42.25 1 school-based incentives for improving stu- percent. This approach has all schools dent performance performing at proficiency over a twenty 1 a phased intervention program for schools year time period, but making improve- not improving performance, leading in the ments every year. 538 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued Performance measures have to be calcu- 1. Continue parity funding and provide each lated carefully, capturing improvements of SND a total of $8664, inflation adjusted in students at the bottom end as well as the future years, for each student. top end, including students with at least 2. Require each school to adopt a compre- mild disabilities as well as students who hensive whole school design, with the Suc- speak a language other than English, and cess for All/Roots and Wings the presump- making appropriate adjustments for stu- tive model for elementary schools. Allow dent mobility among schools. elementary, middle and high schools to 3. Schools are eligible for incentive awards adopt other designs, but if they do so, if they meet or exceed their improvement require them to provide research based targets. Typically, the award is a $1000 evidence that their adopted or created de- bonus for each professional staff sign shows high promise for producing stu- S 658member in the school, and about half dent achievement results. that for each classified staff member. A 3. Provide full day kindergarten for all stu- second tier award often is also provided at dents, funded by counting all enrolled chil- half the above amounts for schools that dren as 1.0 pupil for the district’s pupil meet or exceed 75 percent of their im- count used for the foundation aid program. provement targets. 4. Provide a full day, comprehensive pre- 4. Schools that consistently do not improve school program for all three and four year are first put on a ‘‘watch’’ list and then olds who want to enroll, funded by adding subject to intervention and sometimes take all enrolled children as 1.0 pupil to the over and reconstitution. The Distin- district’s pupil count used for the founda- guished Educator program in Kentucky is tion aid program. an exemplar. Schools put on ‘‘watch,’’ ac- tually called ‘‘schools in decline’’ in Ken- Estimated extra cost of the early child- tucky, are provided a full time distin- hood programs for both the additional guished educator for one year; the role of half day of kindergarten, so to provide a that individual is to help the school identify full day kindergarten, and for the full strengths and weakness and to design a day preschool for children aged 3 and 4 dramatic improvement plan. Though is $181 million, in addition to the CEIFA schools do not want to be declared ‘‘in T & E, parity, and ECPA money, com- decline,’’ those that have report superb mitted by the State and currently pro- experiences with their distinguished edu- vided to Abbott districts and included in cator and in the first cycle of awards, the revenue streams for the illustrative three-fourths of the schools in decline qual- school budget. ified for an incentive award in the next S 6595. Do not provide extra money to reduce cycle, showing that the distinguished edu- class size in elementary schools to 15. Al- cators were quite successful in turning low schools to use base funding for this schools around towards improvement. purpose if they choose to deploy this strat- The costs of an adequate school based egy among several additional programmat- incentive program is approximately 1–2 per- ic strategies to complement their basic cent of a district’s operating budget, which in whole school design. New Jersey could be 1–2 percent of the base 6. Provide a summer school program. spending about of $8500, or $85–170 per pu- Estimated extra cost of summer school: pil. $100 million. The total cost of such a program, at $100 a 7. Provide a comprehensive School–Based pupil, would be about $24 million. Youth Services in all middle and high schools at about $300 per pupil from the Summary education system. Thus, my recommendations and their extra Estimated extra cost of School Based costs would be: Youth Services: $40 million. ABBOTT BY ABBOTT v. BURKE N. J. 539 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued 8. Create and administer a real accountabil- fits Study (LBS) in Grades 4 and 5 ity program with school based incentives (1990–1991): A Legacy from Tennessee’s for improved performance. Four Year (K–3) Class Size Study Estimated extra cost for accountability: (1985–1989), Project STAR. Paper pre- $24 million. sented at the meeting of the North Car- olina Association for Research in Edu- Total extra costs of recommendations: cation, Greensboro, NC. $345 million. These are costs over and Adler, Louise & Sid Gardner. (1994). The above the current CEIFA T & E, parity, Politics of Linking Schools and Social ECPA and DEPA money already provided to Services. Philadelphia: Falmer Press. the Abbott districts, and included in the reve- nue streams in the illustrative school bud- Carnegie Council on Adolescent Develop- gets. ment. (1989). Turning Points: Prepar- ing American Youth for the 21st Centu- Finally, I would recommend that the State ry, New York: Carnegie Corporation. Department of Education create an imple- Carnegie Forum on Education and the Econ- mentation and technical assistance unit that omy. (1986). A Nation Prepared: would provide help to the SNDs and schools Teachers for the 21st Century. New as they together embark on this agenda. I York: Carnegie Corporation. also would recommend enhancing the re- Carnegie Task Force on Meeting the Needs search and evaluation unit of the Department of Young Children. (1994). Starting to gather and collect data on impacts and Points: Meeting the Needs of Our results. Specifically, the Department should Youngest Children. New York: Carne- organize a way to assess the impact of each gie Corporation. school’s program on student achievement so Carnegie Task Force on Learning in the that over time New Jersey will know the Primary Grades. (1996). Years of Prom- progress each school is making to teach all ise. New York: Carnegie Corporation. its students to the States new and rigorous Comer, James P., Norris M. Haynes, Ed- academic standards. ward T. Joyner & Michael Ben–Avie. Two final points on security and professional (1996). Rallying the Whole Village: development. I have not included extra The Comer Process for Reforming Edu- funding for these items as they seem to be cation. NY: Teachers College Press. included in sufficient amounts in the State’s Finnan, Christine, Edward St. John, Jane proposals and additional funds for them are McCarthy, & Simeon Slovacek. (1996). included in the illustrative school budgets. If Accelerated Schools in Action. Thou- the State’s explanations for these inclusions sand Oaks, CA: Corwin Press. are deemed insufficient by the Court, than an Finn, Jeremy & Charles Achilles. (1990). additional amount of money per student Answers and Questions About Class should be considered for the Abbott districts. Size: A Statewide Experiment. Ameri- can Educational Research Journal, References 27(3), 557–577. Achilles, Charles. (1996). Students Achieve Finn, Jeremy. (nd.1996). Class Size: What More in Smaller Classes. Educational Does Research Tell Us. Research Digest Leadership. 53(5), 76–77. from the Laboratory for Student Suc- S 660Achilles, Charles, Barbara Nye & J. Zaha- cess. Philadelphia: Temple University. rias. (1995). Policy Use of Research Finn, Jeremy. (1996). Class Size and Stu- Results: Tennessee’s Project Challenge. dents At Risk: What is Known? What Paper presented at the annual meeting Next? Paper prepared for the National of the American Educational Research Institute on the Education of At–Risk Association, San Francisco. Students, Office of Educational Re- Achilles, Charles, Barbara Nye, J. Zaharias search and Improvement, U.S. Depart- & B. Fulton. (1993). The Lasting Bene- ment of Education. 540 N. J. 710 ATLANTIC REPORTER, 2d SERIES

APPENDIX II —Continued APPENDIX II —Continued Folger, John, Ed. (1992). Project STAR and Lamon, Mary, Teresa Secules, Anthony Pe- Class Size Policy. Peabody Journal of trosino, Rachelle Hackett, John Brans- Education, 67(1). Entire Issue. ford & Susan Goldman. (1996). Schools Glass, Eugene & Mary Smith. (1979). Meta for Thought: Overview of the Project Analysis of Research on Class Size and and Lessons Learned From One of the Achievement. Educational Evaluation Sites. In Leona Schauble and Robert and Policy Analysis, 1(2), 2–16. Glaser, Eds., Innovations in Learning: New Environments for Education. Heneman, Herbert G., III. (forthcoming). Mahwah, NJ: Lawrence Erlbaum Asso- Assessment of the Motivational Reac- ciates, Publishers. tions of Teachers to a School–Based Per- Lee, Valerie, Robert Croninger & Julia formance Award Program. Journal for Smith. (1997). Course Taking, Equity Personnel Evaluation in Education. and Mathematics Learning: Testing the Herman, Rebecca & Samuel Stringfield. Constrained Curriculum Hypothesis in (1997). Ten Promising Programs for U.S. Secondary Schools. Educational Educating All Children: Evidence of Evaluation and Policy Analysis, 19(2), Impact. Arlington, VA: Educational 99–122. Research Service. Lee, Valerie & Julia Smith. (1997). High S 661Hill, Peter & Philip Holmes Smith. (1997). School Size: What Works Best and for Class Size: What Can Be Learnt From Whom? Educational Evaluation and the Research? Paper prepared for the Policy Analysis, 19(3), 205–228. Department of Education, Victoria, Aus- Miles, Karen Hawley & Linda Darling Ham- tralia. mond. (1997). Rethinking School Re- Hirsch, E.D. (1996). The Schools We Need sources in High Performing Schools. and Why We Don’t Have Them. New Madison, WI: Consortium for Policy Re- York: Doubleday. search in Education, University of Wis- Joyce, Bruce & Emily Calhoun, Eds. (1996). consin–Madison. Learning Experiences in School Renew- Miles, Karen Hawley. (1995). Freeing Re- al: An Exploration of Five Successful sources for Improving Schools: A Case Programs. Eugene, OR: ERIC Clear- Study of Teacher Allocation in Boston inghouse on Educational Management. Public Schools. Educational Evalua- tion and Policy Analysis, 17(4), 476– Kelley, Carolyn & Jean Protsik. (1997). Risk 493. and Reward: Perspectives on the Imple- Newmann, Fred & Gary Wehlage. (1995). mentation of Kentucky’s School Based Successful School Restructuring. Madi- Performance Award Program. Edu- son, WI: Wisconsin Center for Edu- cational Administration Quarterly, cation Research, University of Wiscon- 33(4), 474–505. sin–Madison. Kelley, Carolyn. (forthcoming). The Ken- Odden, Allan & Carolyn Busch. (Forth- tucky School–Based Performance Award coming, 1998). Funding Schools for Program: School–Level Effects. Edu- High Performance: School–Based Fi- cational Policy. nancing. San Francisco: Jossey Bass. King, Jennifer. (1994). Meeting the edu- Odden, Allan & Carolyn Kelley. (1997). Pay- cational needs of at-risk students: A ing Teachers for What They Know and cost analysis of three models. Edu- Do: New and Smarter Strategies To cational Evaluation and Policy Analy- Improve Schools. Thousand Oaks, CA: sis, 16 (1), 1–19. Corwin Press.

Kirst, Michael. (1992). Supporting School– S 662Odden, Allan, Herbert Heneman, David Linked Children’s Services. In Allan Wakelyn & Jean Protsik. (996). School– Odden, Ed. Rethinking School Finance: Based Performance Award Case. Madi- An Agenda for the 1990s. San Francis- son, WI: University of Wisconsin, Wis- co: Jossey Bass. consin Center for Education Research, ABBOTT BY ABBOTT v. BURKE N. J. 541 Cite as 710 A.2d 450 (N.J. 1998) APPENDIX II —Continued APPENDIX II —Continued Consortium for Policy Research in Edu- ing: Class Size, Aides and Instructional cation. Grouping. In Robert Slavin, Nancy Odden, Allan & William Clune. (1997). Karweit, Barbara Wasik and Nancy School Finance Formulas: Aging Struc- Madden, Eds. Preventing Early School tures in Need of Renovation. Consor- Failure: Research on Effective Strate- tium for Policy Research in Education gies (pp. 122–142). Boston: Allyn & paper submitted for publication to Edu- Bacon. cational Evaluation and Policy Analy- Slavin, Robert. (1996). Education for All. sis. London: Swets and Zeitlinger. Odden, Allan. 1990 Class Size and Student Smith, Julia. (1996). Does an Extra Year Achievement: Research–Based Policy Make Any Difference? The Impact of Alternatives. Educational Evaluation Early Access to Algebra on Long Term and Policy Analysis, 12(2), 213–227. Gains in Mathematics Attainment. Ed- Odden, Allan. (1997). How to Rethink ucational Evaluation and Policy Analy- School Budgets to Support Whole School sis, 18(2), 141–154. Reform. Alexandria, VA: New Ameri- Superintendent’s Advisory Task Force on can Schools,. Middle Schools. (1989). Caught in the Raywid, Mary Ann. (1994). Alternative High Middle, Sacramento, CA: California Schools: The State of the Art. Edu- State Department of Education (1988). cational Leadership, 52(1), 26–31. The Edison Project. (nd). Partnership Sizer, Theodore. (1996). Horace’s Hope. School Design; The Primary Academy; Boston: Houghton Mifflin. The Elementary Academy; The Junior Slavin, Robert, Nancy Karweit & Nancy Academy. New York: Edison Project. Madden. (1989). Effective Programs for Tillitski, C. (1990). The Longitudinal Effect Students at Risk. Boston: Allyn and of Class Size of PRIME TIME: Bacon. Indiana’s State Sponsored Reduced Slavin, Robert, Nancy Karweit & Barbara Class Size Program. Contemporary Ed- Wasik. (1994). Preventing Early School ucation, 62: 24–26.

Failure. Needham Heights, MA: Allyn S 663White, Paula, Adam Gamoran, John and Bacon. Smithson & Andrew Porter. (1996). Up- Slavin, Robert, Nancy Madden, Larry Dolan, grading the High School Math Curricu- Barbara Wasik Steven Ross, Lana Smith lum: Math Course–Taking Patterns in and M.R. Dianda. (1996). Success for Seven High Schools in California and All: A Summary of Research. Journal New York. Educational Evaluation and for the Education of Students Placed at Policy Analysis, 18(4), 285–308. Risk, 1(1),41–76. Wohlstetter, Priscilla, Amy Van Kirk, Peter Slavin, Robert. (1986). Best Evidence Syn- Robertson & Susan Albers Mohrman. thesis: An Alternative to Meta–Analysis (1997). Successful School–Based Man- and Traditional Reviews. Educational agement: A Report with Cases. Alexan- Researcher, 15(9), 5–11. dria, VA: Association for Supervision Slavin, Robert. (1989). Achievement Effects and Curriculum Development. of Substantial Reductions in Class Size. Word, et al. (1990). The State of Tennessee’s In Robert Slavin, (Ed.). School and Student/Teacher Achievement Ration Classroom Organization. Hillsdale, NJ: (STAR) Project: Technical Report. Erlbaum. Nashville: Tennessee State Department Slavin, Robert. (1990). Class Size and Stu- of Education. dent Achievement: Is Smaller Better? Contemporary Education, 62(1), 6–12. Slavin, Robert. (1994). School and Class- , room Organization in Beginning Read-