In a sad day for Lakewood students who have been waiting for many years for adequate funding, the New Jersey Appellate Division has denied R' Aron Lang's Motion for Leave to File an Interlocutory Appeal, which sought for the court to review the Commissioner of Education's denial of his motion to "get her going" on getting fairer funding for Lakewood's students.
In response, Mr. Lang has now again appealed directly to the Commissioner of Education to clarify her May 12 Order directing her Department to expedite a comprehensive review to see how well Lakewood is doing.
As the news was broken here on FAA News, on March 6, in a massive win for Lakewood's taxpayers and students, the 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.
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 Because this information is now outdated and the subsequent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, in May, Mr. Lang and Professor Paul Tractenberg 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.
As previously reported here on FAA News, the State Education Department, represented by Deputy Attorney General Ryan J. Silver responded to the motion, 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!"
In a sad move for Lakewood's students, the Appellate Division has denied to hear the case.
In response, Professor Tractenberg has now submitted a "Motion for Clarification or Reconsideration" to the Commissioner of Education regarding her May 12 Order.
This motion, in part, states:
"Several things should be clear from the chronology of recent events. First, my co-counsel and I have left no stone unturned in our effort to vindicate our clients’ fundamental constitutional rights to T&E as expeditiously as possible. Indeed, throughout this nine-year litigation, we have repeatedly stressed how and why time is of the absolute essence for them.
"Second, our continuing efforts have been met with a surprising and deeply disappointing
lack of urgency by those constitutionally and statutorily charged with the power and duty to assure
T&E for all New Jersey students, and especially for those, such as our clients, who are
educationally disadvantaged. Indeed, you are chief among the State’s officers with that profoundly
important responsibility, and yet, frankly, and surprisingly given your own educational and
professional background, your conduct has not yet measured up. With this motion, we give you
yet another opportunity to rise to the occasion by clarifying or reconsidering your May 12, 2023,
order. You have only to do what the Appellate Division’s remand clearly asked of you—to
consider and address the students’ argument that SFRA is unconstitutional as applied to the
unique Lakewood school district, and to do so “expeditiously” as you and your lawyers have
repeatedly indicated you would do, this time in accordance with a specific timeline including
dates....
"As a practical matter, we have been seeking to clarify your May 12, 2023, order, and, more
broadly your response to the Appellate Division’s March 6, 2023, remand to you, virtually since
the remand, now exactly four months ago....
"Thus, we were left with no alternative but to file this Motion for Clarification or Reconsideration to address both your unwillingness to set out a timetable, with specific dates, for the remand process, and your description of the remand process as one centered on a “comprehensive review” of the Lakewood school district by the NJDOE, which you originally ordered in your July 16, 2021, final decision in this case. Apparently, the Department had done nothing on that comprehensive review between July 16, 2021, and May 12, 2023, almost 22 months.
"In any event, it is not at all clear that the kind of comprehensive review of the Lakewood
school district you ordered in 2021, as part of a final decision that ruled the district was providing
its students with a “thorough and efficient education” (T&E), but could still benefit from some educational improvements, has any relevance after the Appellate Division overruled your final
decision and unanimously ruled that Lakewood’s public school students were being denied T&E..Curiously, your May 12, 2023, order simply refers to the fact that you had issued a letter
“directing the Department to expedite” the almost two year old comprehensive review on which,
apparently, it had done nothing. We have received no copy of a letter to the Department
containing such a direction. If your intention was to have your May 12, 2023, letter to Mr. Lang
and me serve that purpose, it is surprising that no copy to the Department was shown.
"Your order does provide some insights about how you conceive of the comprehensive review as the centerpiece of your remand process, however. Your premise is that “the information that comprised the record before the OAL, the Commissioner, and the Appellate Division is now outdated,” and “that an updated record is required in order to make an appropriately informed decision about the SFRA and its application to Lakewood.”
"This could be read to suggest that you intend to use the comprehensive review to effectively re-litigate the issue of whether Lakewood’s public school students are still being
denied T&E based on more current data, and this needs to be clarified. You then conclude that the
petitioners’ motion for emergent relief was rendered moot because you had determined a “schedule for the proceedings in this matter, as outlined in the May 12, 2023, letter,” but
apparently not in the May 12, 2023, order itself.
"The letter is addressed to my co-counsel Arthur Lang and to me and shows no copies to
anyone - not to a lawyer representing you or any other State respondent, or to the Department. It
makes explicit that the comprehensive review you now want the Department to “expedite” is the
very same one you ordered in your July 16, 2021, final decision. You also elaborate on what the
comprehensive review should consider. Among other things, it “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.”
Then, your letter continues, “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.” Since no dates are provided for when this
seemingly elaborate “comprehensive review” will begin, let alone be concluded—and how it will
actually bear upon a determination of SFRA’s constitutionality as applied to Lakewood—the
import of the word “expedited” and how this letter provides a “schedule,” as your order claims, are, to say the least, unclear.
"All the above desperately needs clarification, especially since they must be construed in the
context of the Appellate Division’s explicit remand instruction to you and the requirement that
that instruction must be carried out “precisely as it is written.”
"Unlike your response to the remand, the court’s remand instruction could not have been
clearer...
"The core clarification required of you is whether the “comprehensive review” you describe
in your May 12, 2023, order and letter is compatible with the “through review” remand instruction
of the Appellate Division. If it is not, as I believe is obvious, then your “peremptory duty” is “to
obey in the particular case the mandate of the appellate court precisely as it is written.” (Flanigan
v. McFeely)... that is, to focus your remand process on the petitioner-appellants’ argument that SFRA is unconstitutional as applied to Lakewood, not on whether,
based on new data, Lakewood students are still being denied T&E...
"For these reasons, you should grant our Motion for Clarification or Reconsideration, and
make it clear and explicit that:
• The remand process will proceed on an expedited basis, in accordance with a
specific timetable providing dates for all the elements of that process, including
the date for your final decision; and
• The remand process will be focused on the Appellate Division’s specific
remand instructions—namely the petitioner-appellants’ argument that the
SFRA funding structure is unconstitutional as applied to the Lakewood school
district.
Mr. Lang stated, "Governor Murphy likely has eyes on national office for 2026. He is therefore purposely attempting to delay the funding formula case in Lakewood as long as he can, as the school funding aid formula is his signature accomplishment and it will be a blow to his educational platform if the Court concludes that the funding formula is the cause of no T&E in Lakewood.
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