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R' Aron (Arthur) Lang and his co-counsel Professor Paul Trachtenberg today filed a Motion for Emergency Relief, seeking for the New Jersey Education Department to expedite their Court-ordered remand which requires them to "thoroughly review their substantive argument - that the State's funding structure is unconstitutional as applied to Lakewood's unique demographic situation."

As the news was broken here on FAA News, on March 6, in a massive win for Lakewood's taxpayers and students, the New Jersey Appellate Division granted a major win to 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 3-judge panel concluded that the record generated before the Administrate Law Judge (ALJ) cannot fairly be said to support a finding Lakewood's students are receiving a constitutionally sound education.

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

Their written decision acknowledges that 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 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.

The Appellate Division, which reviewed the entire record thoroughly, overturned the Education Commissioner's rejection, saying that 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 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.

The issue, however, is that the Appellate Division did not set any deadline for this "review on remand" to occur.

On April 19, 2023, Professor Trachtenberg wrote to Dr. Angelica Allen-McMillan, Acting Commissioner of the New Jersey Department of Education, noting that it was already 44 days since the release of the Appellate Division's decision and yet, just the day before he presented extensive testimony at a hearing of the Senate Budget and Appropriations Committee, and in response to pointed questions and comments about the Alcantara case from Senator Paul Sarlo, the committee chair, and Senator Teresa Ruiz, a committee member, he "professed to know nothing about the case and his explicit responsibilities on its remand."

"Throughout this almost nine-year long litigation, mostly in the Office of Administrative Law and before you, my co-counsel and I have repeatedly urged, obviously without notable success, that time is of the essence for these students, especially since 100% of them are low-income and 95% of them are Latino and Black. Now we know definitively, thanks to the Appellate Division’s unanimous decision which the State has chosen not to seek to bring to the Supreme Court, that our repeated claims throughout the litigation—that Lakewood’s public school students are being denied their constitutional level of education—were correct all along. It is long past time for the State to acknowledge and fully remedy those grievous constitutional failures.

"Unless you can assure me immediately that your final decision on the Appellate Division’s March 6, 2023 remand to you in the Alcantara case will issue within 10 days, my co-counsel Arthur Lang and I will have to pursue a more formal avenue for assuring an expeditious final decision from you," Professor Trachtenberg concluded.

Having received no response at all from the Education Commissioner, Professor Trachtenberg and Mr. Lang today filed a formal Motion for Emergency Relief seeking for the Commissioner of Education to complete the remand by May 15, 2023.

Under the 1982 case known as Crowe v. DeGioia, the New Jersey Supreme Court articulated the following four standards in which a Motion for Emergency Relief can be granted:

1. The moving party will suffer irreparable harm if the requested relief is not granted;

2. The legal right underlying the moving party’s claim is settled;

3. The moving party has a likelihood of prevailing on the merits of the underlying claim; and

4. When the equities and interests of the parties are balanced, the moving party will suffer greater harm than the respondent will suffer if the requested relief is not granted.

The motion documents cite their case as to why they meet the Crowe standards, concluding "the State’s funding failures with respect to the Lakewood school district over many years have caused the public school students grievous harm that will likely burden them throughout their lives. This, in turn, will harm the State of New Jersey, which desperately needs the good citizens and productive competitors in the labor market that T&E is designed to produce. That is at the heart of the New Jersey Supreme Court rulings in Abbott v. Burke. Any further needless delay in providing those students with their constitutional rights can only exacerbate the severe harm they and our state have already suffered. By contrast, it is hard to imagine that the State respondents will suffer any cognizable harm by being required to provide an expeditious remedy to those students as the New Jersey Constitution requires."

State Statute requires an opposing party to serve and file any papers in opposition within 10 days after service of the moving party’s papers.

The Statue further requires that “applications for emergency relief shall be considered on an expedited basis."

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