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Acting Commissioner of Education Angelica Allen-McMillan continues to drag her feet on her Court-ordered task to render a final agency decision on a precise question - whether the denial of T&E was because “the funding structure of the School Funding Reform Act (SFRA) was unconstitutional as applied to Lakewood’s unique demographic situation.”
Allen-McMillan has previously announced that she will complete this Court-ordered task by doing a comprehensive review of the Lakewood School District.
However, even now, seven months since the release of the court order, it is not clear that such a review has begun.
In response to her continued delay, Mr. Lang has just filed a Motion in aid of litigants’ rights, again seeking for the Appellate Division to render their own decision on the matter, or at the very least, to set a timetable and enforce it.
As the news was broken here on FAA News, on March 6, 2023, in a massive win for Lakewood's taxpayers and students, the New Jersey Appellate Division 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 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.
While this ruling does aim to bring more funding to Lakewood, a glaring issue is that the Appellate Division did not actually set any deadline for when this "thorough review" is to occur.
To make matters worse, as previously reported here on FAA News, on May 12, 2023, Acting Commissioner of Education Angelica Allen-McMillan 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...
"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 was 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 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.
Unfortunately, as previously reported here on FAA News, the Appellate Division declined to intervene.
Following this loss, Professor Tractenberg returned his efforts towards the Commissioner, with a "Motion for Clarification or Reconsideration" to the Commissioner of Education regarding her May 12 Order.
The motion asks the Commissioner to 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.
As previously reported here on FAA News, back in August 2023, Acting Commissioner Allen-McMillan finally responded with the following major update:
Dr. Kimberley Harrington Markus, a former Commissioner of the Department, has been retained to oversee the comprehensive review and author a report and recommendations at its conclusion. Experts Public Consulting Group and Jeremiah Ford have been retained to assist Dr. Harrington in her review. Additional experts may be retained throughout the course of the review as needed.
The experts will collaborate with the Department to examine the Lakewood School District’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 the Lakewood School District’s students and special education funding. As part of the process, these experts will review information currently held by the Department and will require additional information directly from the Lakewood School District. Their review may also require in-person access, meetings, and observation, among other things.
I anticipate the review will take approximately six months; however, this is only a preliminary estimate as the volume of information to be reviewed and complexity of the required analysis are unknown at this time. Upon completion of the expedited comprehensive review, a report containing findings and recommendations will be issued. The Lakewood School District and the petitioners will have an opportunity to respond to the resulting report prior to the issuance of any final agency decision on the as-applied constitutionality of the SFRA. A specific briefing schedule will be issued upon the submission of Dr. Harrington’s report.
I will continue to keep you informed as this process moves forward," the Commissioner concluded.
In all this time, it is not clear that such a review has even begun.
In response to her continued delay, Mr. Lang has just filed a Motion in aid of litigants’ rights, again seeking for the Appellate Division to render their own decision on the matter, or at the very least, to set a timetable and enforce it.
Mr. Lang wrote in his motion brief:
This court’s action seven months ago should have brought us much nearer to the long overdue realization of T&E for Lakewood public-school students. The lengthy and detailed initial decision of the administrative law judge (ALJ), supposed to be forthcoming expeditiously (NJAC §1:1-18.1 (e)), took almost seven years from the filing of the students’ petition and five months from the conclusion of the hearing. The Acting Commissioner (AC’s) decision was surprisingly brief and conclusory, but it, nonetheless, took almost five more months (notwithstanding a much shorter time schedule for similar action prescribed by NJAC §1:1-18.6 (a)). These extensive delays in the administrative process are at variance with the very first rule of construction set forth in the N.J.A.C.’s provisions regarding the Office of Administrative Law, which provides that they “shall be construed to achieve… simplicity in procedure…and the elimination of unjustifiable…delay.” (N.J.A.C. 1:1-1.3 (a)).
Now, more than seven months after this court’s constitutional ruling and specific remand, the AC has produced nothing of relevance. She persists in claiming that a “comprehensive review” of the Lakewood School District’s operations, originally ordered by her on July 16, 2021, for another purpose and apparently never even begun (despite a May 12, 2023, letter stating she ordered the NJDOE to “expedite”), is somehow necessary for her to address this court’s specific remand instruction regarding SFRA’s constitutionality.
Only after our persistent demands for a timetable did she disclose in an August 22, 2023, letter that the “comprehensive review” would take “approximately six months” and be followed by: indeterminate periods for the Lakewood district and the student-petitioners to submit their reactions, and for the AC to produce her final agency decision.
Even now, it is not clear that such a review has begun.
The motion argues that the AC has inexcusably delayed her response to the court's remand instruction and has refused to provide a specific timeline for her issuance of a final agency decision. Therefore, the court should reassume jurisdiction of this case either: a) to establish a specific and expedited timetable for the AC's final agency decision regarding SFRA's constitutionality, or; b) alternatively, to directly render a decision regarding that legal issue, which is clearly with its power.
Following receipt of the Commissioners' letter, Mr. Lang urged residents to "get out and vote for BOE candidates that support this litigation," saying, "the current BOE supports the commissioner. If reelected, they will continue to spin data during the review to highlight their misguided position that education has improved and the courts shouldn't order the legislature to fix the formula."
As first reported here on FAA News, Avrohom Schubert, Eli Eisenbach, and Yoni Morgenstern have gotten on board and running for membership to the Board of Education under the slogan "Fixing the Formula."
Rabbi Yehuda Shain who previously filed to run under the slogan "Accountability and Transparency" has backed out and has now thrown his full support behind the other three candidates.
Upon filing this new motion, Mr. Lang again called upon all Lakewood voters to get out and vote for his slate of candidates.
Mr. Lang highlighted that if the Appellate Division refuses to grant his motion, the governor will be able to delay the matter from getting back to Court until 2025 - when he is already out of office and likely enjoying a U.S. Senate position.
At that point, the debt will be $500 million. Eventually the legislature is going to tell us to pony up. It can authorize unlimited tax increases, using budgetary footnote language such as, "Notwithstanding any other law to the contrary," for "districts that owe over $100 million in debt" - which means we pay back $50 million a year (that is what the statute says and we have been paying 10% a year).
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