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In a massive win for Lakewood's taxpayers and students, the New Jersey Appellate Division today granted a major win to R' Aron (Arthur) Lang in his long running lawsuit known as Alcantra vs. Hespe, which seeks for a fairer funding formula for the Lakewood Public School District.

The ruling reverses the Education Commissioner’s earlier ruling that no review as to the constitutionality of the funding structure of the SFRA as applied to Lakewood's unique demographic situation was needed. The court order remands the matter back to the Commissioner, saying that the "Commissioner [did] owe appellants a thorough review of their substantive argument: the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation."

Nearly a decade ago, R' Aron filed a petition to the Commissioner of Education alleging that the Lakewood Public School District was not providing its public-school students a thorough and efficient education (T&E) as required by the State's Constitution.

Importantly, the petition contended that this is due to the failure of the New Jersey Department of Education (DOE) to adequately fund the District.  To that end, the petition asserted that the School Funding Reform Act (SFRA), which sets certain standards for the DOE, is unconstitutional as applied to Lakewood.

Administrative Law Judge (ALJ) Susan Scarola initially considered the case. After the development of a thorough record, she determined while the District was indeed failing to provide T&E, this failure was due to local mismanagement and other factors, and not because of a constitutional defect in the SFRA. She denied relief on this basis.

R' Aron petitioned the New Jersey Commissioner of Education (Commissioner) for review. The then acting Commissioner rejected the ALJ's conclusion the District had failed to provide an adequate education to its students, and therefore, because it found the District was providing T&E, did not reach the issue of constitutionality of the SFRA.

Undeterred, R' Aron continued on to the Appellate Division.

Judges Whipple, Mawla, and Smith heard oral arguments in January 2023 from Mr. Lang and renowned education lawyer Professor Trachtenberg.

They released their decision minutes ago:

The record demonstrates Lakewood's school district is in a unique and precarious position. Due, in large part, to demographic trends in the area. Lakewood Township has seen a population rise in recent decades, primarily resulting from a thriving Orthodox Jewish community. As a result of this demographic shift, the township has approximately 37,000 school-aged children, however, only about 6,000 are enrolled in the secular public schools.  The majority—eighty-four percent—are enrolled in private religious schools.  Testimony before the Administrative Law Judge (ALJ) established this demographic trend is likely to continue and accelerate.

Like other districts, Lakewood's state-issued school aid is calculated based upon its 6,000 enrolled public-school students. The total budget for the most recent school year at the time of that decision was $143.45 million. Of that, over half — $78 million — went to transportation and special education tuition for non-public students. This is an abnormal and unsustainable imbalance.

Faced with this picture, the ALJ found the District was failing its students to a degree that offended the basic guarantees of our State Constitution. 

The Commissioner, however, rejected this finding. She reasoned that "[w]hile Lakewood's standardized test scores [and other metrics] are below the [s]tate average, they have shown consistent improvement" and therefore lacked constitutional defect.

In finding the District's students were not receiving T&E, the ALJ focused on credible evidence in the record that Lakewood's test scores were well below state averages, and students fared poorly on performance in English and math. She also observed low rates of graduation and college enrollment, as well as high rates of chronic absenteeism. Moreover, while the District offered courses in AP English and Spanish, as well as art and technology, the ALJ noted the programs in industrial arts and auto mechanics had been recently cut. Finally, she noted the only foreign language study offered in-district was Spanish, despite a high rate of Spanish literacy within the student body to begin with. 

However, when the Commissioner interpreted this same evidence, she saw a glass half full. In determining Lakewood's students were receiving a constitutionally adequate education, the Commissioner made essentially three arguments. First, she asserted there was a positive trend of improvement in the school's testing averages. Second, while acknowledging cuts to various educational programs at the district, she observed the District still offered "all the courses required for graduation[,]" as well as five AP classes, music programs, and research skills courses. Third, while she acknowledged a "high rate of teacher turnover" and a high student-teacher ratio, she claimed Lakewood met various federal targets under the federal Every Student Succeeds Act (with exceptions).

As legal support for her conclusion, she compared the above observations with the conditions described in Abbott II, a case concerning stark physical deficiencies in school facilities—students being taught in coal bins, eating lunch in the corridor, and using bathrooms without hot water. In the Commissioner's estimation, because Lakewood lacked these desperate conditions, the quality of education it provided remained constitutionally sound. 

The Commissioner's reliance on this aspect of Abbott II does not address the problem in Lakewood. Abbott II does not hold that all a school district must do to remain constitutionally compliant is provide adequate physical facilities. Instead, Abbott II observed "a thorough and efficient education requires a certain level of educational opportunity, a minimum level [which] . . . should[] be defined in terms of substantive educational content."

Furthermore, "a thorough and efficient education requires such level of education as will enable all students to function as citizens and workers in the same society . . . ." 

The question is not whether Lakewood's public schools are direct physical analogues of the unacceptable conditions observed in a school over thirty-three years ago. Instead, it is whether, substantively, the District is failing to provide its students with a minimum level of educational content and opportunity as required by our Constitution today.

The court reviewed the record generated before the ALJ which showed that Lakewood's test scores and graduation rates are below State average. The court also noted that it is irrelevant that the Lakewood School District does meet the ESSA as that is Federal legislation, which has no direct bearing as to whether Lakewood is performing to the standard required by our State's Constitution.

Based on the above, the Appellate Division concluded that the record generated before the ALJ cannot fairly be said to support a finding Lakewood's students are receiving a constitutionally sound education.

The court therefore held that the Commissioner utilized an incorrect standard in rejecting the ALJ's finding, and further held the Commissioner owed appellants a thorough review of their substantive argument:  the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation.

The court reversed and remanded for the agency to consider the substantive arguments pertaining to SFRA in light of our Supreme Court's previous directive in Abbott ex rel. Abbott v. Buke:  the State has a continuing obligation to "keep SFRA operating at its optimal level" and "[t]here should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge."

This long awaited ruling is a massive win for Lakewood's taxpayers and students of both public and non-public schools as it orders the State Education Department to more thoroughly review the Appellants main argument that the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation.

"We won. Court agreed with all our arguments," tweeted Arthur Lang.

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Anonymous said...

It's not a win yet. It just forces the commissioner to revisit it. The commissioner can again derive arguments against it. It's not a win until the Lakewood BOE debt gets erased, and future funding is revised.
And how is Avi Schnall going to claim victory when all the surrounding towns are getting massive BOE cuts while being forced to pay for private school bussing. This will ricochet against our community in unpleasant ways.
The only solution is to fund bussing as part of a separate formula, and that will solve the problems for the surrounding neighborhoods as well.

Anonymous said...

It is a win. There has not been a favorable ruling on school funding for over two decades. Reverse and remand is boilerplate language. The unconstitutionality of the funding is acknowledge. As for solutions, that is for the DOE to have a first shot at making a recommendation to the legislature.

We got almost everything we asked for. We asked the Court to reverse the lower standard of T & E the Commissioner set when she said the state is providing T & E in Lakewood. We also asked the Court to reverse the Commissioner because the record was on our side.

We asked the Court to give the DOE the first shot at coming up with a solution. The only thing we asked for and the Court did not grant was forgiving the debt but we did not expect that. It would take the Supreme Court to do that. As for the bussing, we suggested the state take on itself to pay nonpublic bussing outside the formula, as it did with pensions. Or an extra term in the formula for nonpublic students.

A Lang