Arthur Lang, along with Professional Trachtenberg have made good on their promise to return to court to stop the Commissioner of Education's subterfuge of the Appellate Division's earlier ruling regarding funding for Lakewood schools.
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, and therefore, the Commissioner of Education owed the appellants a thorough review of their substantive argument - that the funding structure of the School Funding Reform Act (SFRA) was unconstitutional as applied to Lakewood's unique demographic situation.
The issue with this long awaited ruling, however, is that the Appellate Division did not set any deadline for when this "thorough review" is to occur.
As previously reported here on FAA News, on May 1, Professor Trachtenberg and Mr. Lang filed a formal Motion for Emergency Relief seeking for the Commissioner of Education to complete the remand by May 15, 2023. This motion was filed directly to the Commissioner of Education.
Subsequently, as previously reported here on FAA News, on Friday May 12, the Commissioner of Education doubled down with a shocking decision (i.e. yet another delay tactic) - merely that the court's review of the District was on years past, and the time has come for her department to do another in-depth review as to how well Lakewood schools are doing currently!
"In light of the Appellate Division’s finding, and in order to execute my obligations under the remand
and provide a well-informed opinion as to whether the SFRA is constitutional as applied to Lakewood,
I am now directing the Department to expedite the comprehensive review referenced in my final
decision. The facts and data that comprised the record before the Office of Administrative Law, the
Commissioner, and the Appellate Division, relate primarily to the 2014-15, 2015-16, 2016-17, 2017-
18, and 2018-19 school years. Because this information is now outdated and the subsequent
intervening years will have revealed additional relevant and informative data, coupled with the fact
that there have been unprecedented changes in the field of education as a byproduct of the COVID-19
pandemic, an updated record is required in order to make an appropriately informed decision about
the SFRA and its application to Lakewood.
"The review will require the engagement of experts to examine Lakewood’s operations and performance in several key areas, including educational policy, special education, administration and governance, and accounting. In addition to these areas, the review will include, but will not be limited to, an examination of the particular areas of concern raised by petitioners in these proceedings, such as transportation costs for Lakewood’s students, and special education funding.
"Upon completion of this expedited comprehensive review, Lakewood and the petitioners will have an opportunity to respond to the resulting report and recommendations prior to the issuance of a final agency decision on the as-applied constitutionality of the SFRA.
"In addition to assisting in that determination, the comprehensive review will also allow the Department to better identify the root causes that led to the educational deprivations identified by the court and determine the appropriate responses...
"Once the expedited comprehensive review
is complete, the Department will be better equipped on how best to ensure that Lakewood’s public
school students receive the necessary education required by our State’s Constitution," the Commissioner concluded.
Essentially, the Commissioner of Education is attempting to circumvent the Appellate Division's decision that the funding formula is unconditional as to Lakewood because Lakewood fails to provide a Thorough & Efficient Education (T&E), by saying that the court only reviewed the district from years past and now its her turn to review the District from "the here and now."
In response, Mr. Lang and Professor Trachtenberg have just filed a Motion for Leave to File an Interlocutory Appeal, asking the appellate court to intervene and not allow the Commissioner to get away with this subterfuge. This motion was filed to the Appellate Division.
They wrote to the Court:
This is a case in which 5,500 Lakewood public school students have spent almost nine years trying to vindicate their fundamental constitutional rights to T&E.
Despite this Court’s unanimous March 6, 2023, decision confirming that those students were being denied T&E, nothing has yet changed for them in their schools. And the Acting Commissioner’s curious response to this Court’s remand suggests that it will be a long time, if ever, before positive change occurs in Lakewood...
It should not require the intervention of the courts and litigation to make certain that the state education officials are fully aware of the problems of constitutional dimension confronting many of their charges and to remedy those problems.
And yet the State has failed to take the initiative in many areas, including school funding and school desegregation; instead, it waits to be sued and then its modus operandi in this case and others seems to be to deny, deflect and delay.
This case should not have consumed almost nine years, and still seem to be far from final resolution and remedy.
There is a distressing pattern here. New Jersey students make strong
claims that they are being denied fundamental constitutional rights, the state
education authorities turn a deaf ear and a blind eye to them, and, as a last
resort, the students go into the state courts. Although the courts are usually
responsive, the process saps time, energy and resources that could be put to
better use elsewhere. At least in part that seems to be a result of the State’s
apparent strategy to delay for as long as it can the action necessary to vindicate
the students’ constitutional rights.
That is the challenge facing this Court now. Will you at least insist that the Acting Commissioner proceed responsively and expeditiously to your specific remand instructions? Alternatively, will you take direct responsibility
for answering the quintessentially legal question of whether SFRA is unconstitutional as applied to Lakewood’s public schools without the advisory
input of the Acting Commissioner?
The Acting Commissioner fails to set forth any kind of timetable for what
promises to be a lengthy and complex—and duplicative—comprehensive
review of the Lakewood school district, which is expressly stated to be a
prelude to her final decision on the remand issue, “the as-applied
constitutionality of the SFRA.”
The Acting Commissioner’s order and letter to counsel for the Petitioners gives some clear hints as to how long and
complex the comprehensive review promises to be (if permitted to be implemented). The review will include: (1) an updating of the entire record
compiled by ALJ Scarola over years; (2) “the engagement of experts to examine
Lakewood’s operations and performance in several key areas, including educational policy, special education, administration and governance, and accounting:” (3) “an examination of the particular areas of concern raised by
petitioners in these proceedings, such as transportation costs for Lakewood’s
students, and special education funding;” and (4) upon completion of this review, an opportunity for the Lakewood school district and the Petitioners “to
respond to the resulting report and recommendations.”
Since multiple State monitors have been assigned to Lakewood for the
past nine years with statutory authority to effectively operate the district, this comprehensive review actually may involve the Department of Education and
its “experts” evaluating what the State monitors have been doing in recent
years.
This seems a long and unnecessary road to travel in response to this
Court’s limited and specific remand—for the Acting Commissioner to provide
an advisory recommendation as to whether SFRA, as applied to Lakewood, is at
least a significant cause of the denial of T&E to the district’s students. The
further related, if unstated, question is, to the extent SFRA is a cause of the constitutional deficiency, what should be done to remedy that problem. On that
matter, legislative action is certainly necessary, but the Acting Commissioner
and the Department of Education can play an important role in recommending what changes ought to be made.
Although the Acting Commissioner’s Order asserts that she has determined a “schedule for the proceedings in this matter, as outlined in the May 12, 2023, letter,” and, therefore, “there is no longer any question pertaining to the timing of her decision that requires resolution,” a careful search of both the Order and the May 12, 2023, letter sent to counsel for the Petitioners reveals nothing that could constitute a “schedule.” The only word that bears on timing is the reference to “expedited.” But that can hardly be considered a “schedule.”
Because of the uncertainties attendant to how the Acting Commissioner
will respond to this Court’s remand and her failure to establish any identifiable schedule for her action, this Court should re-assume jurisdiction and establish a
specific and expedited schedule for the Acting Commissioner’s discharge of her
remand obligations.
Alternatively, since an agency head’s input on legal questions, and
particularly questions of constitutional dimension, is advisory only and is entitled to limited or no deference by a court, this Court should seriously entertain dealing with such questions on its own, without remand to an administrative agency head. As a realistic matter, that may be the only way in
which a definitive decision can be achieved within a reasonable time. As
stressed earlier, the public school students of Lakewood need and deserve such a decision as soon as possible.
Time is of the essence for public school students who are being denied T&E!
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