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Acting Commissioner of Education Angelica Allen-McMillan continues to drag her feet on her Court-ordered 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 recently 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.

Deputy Attorneys General have just now filed opposition to the motion.

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.

In response to the commissioner's continued failure to provide any meaningful timetable for this "thorough review" to occur, as previously reported here on FAA News, last month, Mr. Lang filed a new 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.

Deputy Attorneys General Christopher Weber and Ryan J. Silver on behalf of the Acting Commissioner of Education have just now responded with opposition to the Motion for Aid in Litigants Rights.

They enthusiastically wrote:

In order for the court to grant appellants’ motion, there must be a finding that the Commissioner has failed to live up to this court’s remand instructions, and that she has done so willfully.

Appellants focus their arguments on the claims that the comprehensive review is outside of the scope of the remand order and is redundant and unnecessary. Specifically, appellants allege that the Commissioner “lacks the discretion” to order a comprehensive review and that it is “largely duplicative." Not only do appellants misconstrue the parameters of this court’ remand, they also ignore both the authority and the responsibility the Commissioner has to order the review. Because the Commissioner’s expedited review does not contravene this court’s instructions on remand in any way, appellants’ motion should be denied.

First, and most importantly, the 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. 

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.” N.J.S.A. 18A:4-23, -24. 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 appellants’ as-applied challenge to the SFRA. Because the court found that Lakewood’s students were not receiving T&E, and because it is the Commissioner’s obligation to address such a deprivation, the Commissioner’s review serves an important dual function: namely, it addresses the court’s T&E findings while simultaneously providing an updated record to permit the Commissioner to conduct an analysis of the SFRA as applied to Lakewood. As such, 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 Lakewood’s failure to provide T&E 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 contended 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 necessarily requires 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.

And the comprehensive review is not “duplicative,” as appellants claim.

In raising this argument, appellants ignore the fact that the data and information in the record is, at best, five years old. The Commissioner simply cannot issue a decision on their as-applied challenge based on such an outdated record. In fact, the need to develop a current record in matters involving school funding is a responsibility for the Commissioner.

This rings especially true with respect to the SFRA because a “state funding formula’s constitutionality is not an occurrence at a moment in time; it is a continuing obligation.” This is because “the sufficiency of education is a growing and evolving concept” such that “what seems sufficient today may be proved inadequate tomorrow.” Abbott v. Burke quoting Robinson. And while the Commissioner has appointed State monitors, these monitors serve a separate, limited function compared to the Commissioner. Specifically, monitors only oversee certain aspects of a district’s fiscal management, N.J.S.A. 18A:7A-55, whereas the Commissioner must review every facet of the district’s operations to identify the root cause of the failure to provide T&E. See N.J.S.A. 18A:7A-11. This is precisely why the Commissioner has retained a team of experts with a wide array of experience and expertise in district practices to examine Lakewood’s operations at every level.

Importantly, the comprehensive review is currently underway, despite appellants’ claim to the contrary. The Commissioner has retained experts to assist in the review of the district who, as of the date of this filing, have begun reviewing information and data in the Department’s possession as it relates to Lakewood, as well as information directly from Lakewood. And in the coming weeks PCG will hold initial site visits and conduct surveys and classroom observations.

While appellants’ take issue with the fact the comprehensive review will take approximately six months to complete, the court’s remand order does not provide a deadline by which it must be completed. To be sure, remand proceedings should typically proceed within a reasonable period of time, and the Commissioner is acutely aware of, and sensitive to, the urgency called for by this matter. That is precisely why the Commissioner ordered an expedited review. But, having said that, the Commissioner must also ensure that her decision is correct. To do so, she must be able to conduct a thorough, meaningful review of the record. Because the information in the record is significantly out of date, and because of the nature of the questions involved, a comprehensive review to ensure an up-to-date and accurate record is not only imperative, but mandated.

Thus, the Commissioner’s decision to order an expedited review is not inconsistent with the remand order; rather, it is a necessary step in discharging her statutory and constitutional duty. Because the Commissioner is acting in accordance with the remand order, appellants’ motion must be denied.

Appellants’ Request for this Court to Assume Jurisdiction Should be Denied

Despite recognizing that this matter is properly before the Commissioner for issuance of a final agency decision, especially in light of the remand order, appellants ask this court to reassume jurisdiction in order to “establish[] a strict and expedited schedule” for the Commissioner’s final decision or to “directly render a decision” regarding the as-applied challenge. But the record militates against such an extreme course of action. Here, for all of the reasons set forth above, the Commissioner’s final determination as to the constitutionality of the SFRA as applied to Lakewood requires further factual development and a determination about whether Lakewood’s educational deficiencies are a result of the application of the SFRA or other forces. Importantly, because appellants bring an as-applied challenge to the constitutionality of the SFRA, the Commissioner must first be afforded an opportunity to develop the record and render a decision on an issue within her expertise.

While appellants assert that this court’s intervention is needed to impose “dramatically expedited remand” procedures, the cases it cites in support of this claim are inapposite. In N.J. Div. of Youth and Family Serv. V. B.R. for example, the Court specifically ordered “an accelerated hearing” within fourteen days and the exchange of briefs within seven days as part of its remand instructions. But unlike the Court in B.R., this court did not impose such a preemptory scheduling order as part of its remand. Instead, it left the matter to the discretion of the Commissioner to determine what was necessary in order to rule on appellants’ as-applied challenge. In exercising this discretion, the Commissioner ordered an expedited, comprehensive review which, as set forth more fully above, is currently underway.

Lastly, appellants’ claim that the court should invoke original jurisdiction because the Commissioner’s decision is “advisory only” should be rejected. To be sure, while courts are not ordinarily bound by an agency’s determination of a strictly legal issue, Mayflower Sec. Co. v. Bureau of Sec., courts do “afford substantial deference to an agency’s interpretation of a statute that the agency is charged with enforcing[,]” Patel v. N.J. Motor Vehicle Comm’n. And where, as here, the “resolution of a legal question turns on factual issues within the special province of an administrative agency, those mixed questions of law and fact are to be resolved based on the agency’s fact finding.” Thus, it is the Commissioner and not the court that is best positioned to conduct the necessary fact finding to rule on the as-applied challenge. That process is currently underway and should be allowed to play out here.

Mr. Lang and Professor Trachtenberg remarked, "the State's brief is embarrassingly weak. It does not respond at all to many of our complaints about the remand process, why a "comprehensive review" that was ordered by the acting commissioner on July 16, 2021, and ordered by her to be "expedited" on May 12, 2023, is only now beginning; or why the multiple state monitors' statutorily required weekly reports to the commissioner have not provided whatever updating information the acting commissioner might need to respond to the remand question about SFRA's unconstitutionality as applied to Lakewood; or why anyone should take solace from another $93 million repayable loan to a district long ago overburdened by loans (according to the ALJ, saddled with "an unsustainable fiscal burden"); or why eight annual certifications by a series of commissioners, including the current acting commissioner, required to support the loans, which state that, without the loans, Lakewood has insufficient funding to provide T&E, don't by themselves establish that SFRA is unconstitutional as applied to Lakewood."

The court rules do not allow for oral argument for motions in the Appellate Division. The court is expected to release a decision on the motion in the coming few weeks.

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Anonymous said...

The AG says the same nonsense as the BOE, that education improved, basically meaning we have to start over because beyond question the way Lakewood is funded with loans is unconstitutional and affects instruction. The whole thing by is ridiculous because it took ten years of proving harm to the students, there is no other cause of action, just the FINALLY reach the question of counting all of Lakewood kids. And now you perfidious BOE is siding with the Commissioner and will lose anyway. A Lang

Yidel Baruch said...

Mr lang is ahuuuuuuuuuuge צדיק