GOVERNOR MURPHY'S ADMINISTRATION STUBBORNLY CONTINUES TO DELAY FUNDING FOR LAKEWOOD

It seems that Governor Phil Murphy's administration will do everything in their power to delay adequate funding for Lakewood!

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.

However, the Murphy-appointed Commissioner, aided by the Attorney General's Office, is doing all she can to continue to delay providing adequate funding.

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 to the Commissioner seeking for her to complete the remand by May 15, 2023.

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, as previously reported here on FAA News, Mr. Lang and Professor Trachtenberg 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.

They wrote to the Court:

This case should not have consumed almost nine years, and still seem to be far from final resolution and remedy.

Despite this Court’s unanimous March 6, 2023, decision confirming that Lakewood's students were being denied T&E, nothing has yet changed for them in their schools. 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....

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!

On May 25, 2023, Professor Tractenberg submitted a letter to the Commissioner requesting a time-table and compliance with the narrow remand of the Appellate Division.

The letter reminds the Commissioner that already back in 2021, she "ordered a comprehensive review of Lakewood," with nothing to show since then.

The letter, in part, states:

If you are serious about intending to expedite the remand process, as your regulations require, you should abandon the flawed idea that it requires a “comprehensive review” and provide a detailed and specific timetable for the process that is necessary for you to respond to the Appellate Division’s specific remand instructions.

The last thing LSD students need now, however, is another lengthy hearing about whether the education they are receiving meets constitutional standards and, if it does not, whether SFRA is the cause. Seeking to create what is effectively an endless loop of hearings followed by administrative and judicial decisions based on the record generated at those hearings, and then the claimed need to update that record before a constitutional violation can be remedied, is incompatible with your duty to ensure that all of New Jersey’s students, and especially those who are disadvantaged, receive T&E in real time.

We have argued, possibly ad nauseum but without notable success thus far, that time is of the essence for Lakewood public school students.

If anyone should have internalized, understood, and been prepared to address that compelling need as urgently as possible, even without the necessity for litigation such as this case, it is you. Indeed, you have both the constitutional and statutory obligation and power to do just that. I implore you to act as expeditiously as possible, in no event more than 45 days from the date of this letter. Please use your time, energy and expertise to pave the way for a desperately needed remedial effort for Lakewood’s public school students, not to invent further ways to delay their long-sought goal of T&E.

The State Education Department, represented by Deputy Attorney General Ryan J. Silver has now filed their response to the motion for leave to file interlocutory appeal.

In essence, they are arguing: Deny the Motion, deny to take any jurisdiction over this matter, and permit the Commissioner to run the show at her leisure, simply because "we need to get this done absolutely correctly!"

Their response highlights the real issue of how this motion became necessary to begin with - that the court did not set any parameters for the remand, nor did it retain jurisdiction over the matter.

The State then twists this issue by arguing that the Commissioner’s decision to order an expedited review is not inconsistent with the remand order; rather, it is actually a very necessary step in discharging her statutory and constitutional duty, and a component of compliance with the court's earlier decision.

The Commissioner, as chief executive of the Department, is charged with the “supervision of all schools of the state” and is required to “inquire into and ascertain the thoroughness and efficiency of operation of any of the schools of the public school system of the State.

In discharging this responsibility, the Commissioner is authorized to conduct comprehensive reviews of districts to ensure that they are providing T&E to all students, and, where it is found that a district is not providing T&E, to ascertain the root cause of this deprivation.

Here, this court found that Lakewood’s public school students were not receiving T&E and remanded the matter to the Commissioner to consider the appellants' challenge to the SFRA.

Because the court found that Lakewood’s students were not receiving T&E, it is imperative that the
Commissioner be able to invoke her statutorily prescribed supervisory authority to conduct a comprehensive review of the district in order to determine the source of this failure and take steps to rectify the situation. This is especially true here, where Lakewood’s unique demographics and challenges are central to the as-applied challenge.

As the record reflects, Lakewood is an outlier in this State in terms of its demographic trends and public school enrollment. By 2019, for example, only 16% of Lakewood’s student population attended public schools, while 84% attended other non-public schools. Lakewood contends that due to these trends, it has been forced to bear significant financial burden in providing transportation and special education services for its large private school student population. Thus, the Commissioner’s comprehensive review will
necessarily require an examination of the nature and extent to which the district’s obligations to its non-public school students affect its operations and, importantly, whether the SFRA is a cause of its financial hardship and failure to provide T&E or whether it is due to other factors such as mismanagement or the district’s statutory obligations to non-public students.

Furthermore, as appellants would have the Commissioner simply issue a decision on their as-applied challenge based on an outdated record, they not only seek to substitute their judgment for that of the Commissioner, but also ignore the fact that such a determination cannot be made without a complete record. In fact, the need to develop a current record in matters involving school funding, to allow the Commissioner to render a fully informed decision on the as-applied challenge, is one of responsibility for the Commissioner.

Importantly, the Commissioner’s comprehensive review is in no way foreclosed by this court’s remand order. Rather, by remanding to the Commissioner without retaining jurisdiction or setting parameters, the court entrusted the matter to the Commissioner’s expertise in reviewing and rendering a decision on the as-applied challenge.

In order for her to issue a final agency decision on the issue remanded by the court, she needs current and comprehensive information regarding the reasons the district is unable to provide T&E. And, understanding the urgency of the issue, she directed that the review be expedited. While the Commissioner did not impose an express timeline for the review – which could potentially limit its depth and scope – she did outline parameters. Specifically, the Commissioner called for the Department to first engage experts to “examine Lakewood’s operations and performance,” and for the Department to examine the “particular areas of concern raised by [appellants.]” Recognizing appellants’ interests in the outcome of the review, the Commissioner announced that they, along with the district, would have an opportunity to “respond to the resulting report and recommendations." After receiving all reports and responses, the Commissioner will then issue a final agency decision on the as-applied constitutionality of the SFRA.

Appellants’ mere dissatisfaction with the specifics
of the Commissioner’s timetable is not a genuine dispute, nor is it a basis for interlocutory review and, as such, must be rejected.

This motion response is quite concerning. At one point the State admits that the Appellate Division already ruled that Lakewoods students were not receiving T&E, and remanded the matter to the Commissioner to consider the appellants' challenge to the SFRA.

Yet, at another point the State contends that the remand is "to conduct a comprehensive review of the district in order to determine the source of this failure and take steps to rectify the situation."

At yet another point the State goes so far as to insist that the remand is to determine "whether the SFRA is a cause of its financial hardship and failure to provide T&E or whether it is due to other factors such as mismanagement or the district’s statutory obligations to non-public students!"

This is quite a shocking claim to assert!

The Appellate Division has now formally denied to hear the matter on an emergent schedule, therefore the hearing will likely not be held for a number of months - further delaying appropriate funding for Lakewood's students.

To join a FAA WhatsApp Group, click here.

To join the FAA WhatsApp Status, click here.