TIRELESS ADVOCATE R' ARON LANG CHARGES ON AND RESPONDS TO COMMISSIONER’S CONTINUED REBUFF

R' Aron (Arthur) Lang, who has tirelessly devoted countless hours over a decade advocating for a fairer school funding for Lakewood, has recently filed a reply brief to the State Education Commissioner’s opposition to Lang's hard efforts. 

Mr. Lang is also renewing his efforts to get the court decision to be expedited.

Mr. Lang's long time 2 arguments are; 1) Lakewood's students are not receiving a constitutionally sound education (known as a Thorough and Efficient education, or T&E), and; 2) the fault of this lies squarely in the fact that New Jersey's School Funding Formula (SFRA) is unconstitutional as applied to Lakewood's unique demographic situation (which has many nonpublic students who need transportation but whom are not counted towards funding).

Succeeding on both of these arguments is key to be able to force State officials to finally provide fairer funding to Lakewood.

After many years of fighting in the Office of Administrative Law, a judge agreed with Mr. Lang as to his first point, but not with his second point. Instead, the Administrative Law Judge (ALJ) directed the Education Commissioner to review Lakewood’s School District and recommend how they can cut spending.

Following this ruling, the then-Commissioner issued a Final Agency Decision completely reversing the ALJ's ruling, claiming that Lakewood did provide T&E and therefore it was not necessary to review Mr. Lang main argument as to the constitutionality of the funding formula.

As the news was broken here on FAA News, in a massive win for Lakewood's taxpayers and students, on March 6, 2023, the Appellate Division reversed this decision, finding that the Commissioner erroneously disregarded the record before the ALJ that Lakewood does not provide T&E.

Having reached this determination, the 3-judge panel remanded the matter back to the Commissioner to do a "thorough review of the most substantive argument - that the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation."

Following this remand order, as previously reported here on FAA News, the then-acting Commissioner did all in her power to do everything - except what the court ordered her to do.

Seeing that the Appellate Division had not issued a deadline for the Commissioner to complete her "thorough review," Mr. Lang filed a Motion seeking for the court to set a deadline. The court agreed and set a April 1, 2024 deadline.

In the interim, the Commissioner brought in numerous experts to do all sorts of reviews of Lakewood.

The result: On April 1, 2024, the new acting commissioner issued a Final Agency Decision completely denying Mr. Lang's arguments. Instead, our funding issues lie mainly with the fact that we are "undertaxed," and that the Board of Education is "mismanaged."

In response, as previously reported here on FAA News, just 17 days after the issuance of this final agency decision, Mr. Lang filed a new appeal to the Appellate Division seeking to overturn the Commissioner's Final Agency Decision (FAD).

The petition states:

This court's remand order to the Acting Commissioner directed her to address the second argument - that SFRA was the cause. Neither the Final Decision, nor the Comprehensive Review on which it is based, meaningfully address that question, however.

The Final Decision barely mentions SFRA, let alone evaluates its application to Lakewood and constitutionality as applied.

The Acting Commissioner's only attempt to support that conclusion is by referring to general presumptions of validity accorded to legislative enactments without addressing whether those general presumptions should apply here where there has been a final, unchallenged adjudication that Lakewood students have been denied their fundamental constitutional right to T&E. Had the Final Decision delved into the details of how SFRA actually operates with respect to Lakewood, it would have become clear that there is a fundamental mismatch between Lakewood's unique fiscal needs, caused by its unique demographic characteristics, and SFRA's statewide funding formula.

Because the Final Decision gave SFRA an unwarranted constitutional pass, it never addressed the third major question raised, the remedial issues regarding the State's school funding system, and especially SFRA.

As to the constitutionality of SFRA, even if the statutory formula is fully funded in the upcoming school year, it will fall far short of providing the district with enough funding to assure its students T&E. The simple reason, acknowledged by the State and everyone else, is that Lakewood has unique demographic characteristics and that SFRA's application to Lakewood has never been meaningfully evaluated and calibrated to those district characteristics.

The Education Commissioner, represented by the New Jersey Attorney General's Office has now submitted briefs against this appeal.

The briefs state in part:

This court has ruled that the Lakewood Public School District (LPSD) is not providing its students with a constitutionally-mandated thorough and efficient education (T&E). But the source of that deficiency is contested by the parties and is at the heart of this appeal. Pursuant to this court’s prior opinion, the Department of Education has undertaken a comprehensive review of LPSD’s operations, which establishes that the failure to provide T&E is due to problems occurring at the district level. In contrast, Appellants claim that the court’s finding is attributable to the School Funding Reform Act of 2008 (SFRA), arguing that the statute is therefore unconstitutional as applied to the District.

But, Appellants’ claim is unsustainable because they have failed — and, in fact, have refused — to examine the root cause of the District’s failings. Essentially, Appellants wholly disregard the real issue affecting students in LPSD: the District is plagued by decades of mismanagement and poor decision-making. These deficiencies, rather than the SFRA, have led to the inefficient use of substantial State aid and, worse still, resulted in public school students receiving a sub-par education.

LPSD is also mismanaged in terms of governance and administration, resulting in inefficient use of funds and a failure to raise necessary capital to provide T&E. This starts at the top, with the Board of Education. Board meetings are conducted without discussion on any agenda items or committee reports, which deprives the public from being fully apprised of the Board’s actions. Further, boards of education play an integral role in developing the district’s budget; they are required to adopt a budget which provides T&E. But despite LPSD’s financial struggles, the Board does not discuss financial issues or budgets during meetings, does not discuss district policies, and does not have a strategic plan in place. Rather, the Board’s “involvement with budget development is minimal,” and Board members were “not entirely familiar with [budget] details.” Also, the Board President has effectively abdicated his role and responsibilities to the Board’s attorney, permitting the Board attorney to control the board’s operations. In turn, LPSD’s “legal expenses per pupil are significantly higher than” comparable districts. In the 2021-2022 school year, LPSD’s per pupil legal costs were over four times higher than the next largest comparison districts.

Appellants ignore these critical failings and instead simply claim that because the State has provided LPSD with loans to assist it in balancing its budget (due to the District’s poor planning), the District must not be receiving enough funding through the SFRA. This logic is fundamentally flawed. LPSD has received sufficient aid through both the SFRA and State loans. If the District still cannot provide T&E with all of the assistance it has received, clearly the issue is not one solely of funding. 

For these reasons, the court should affirm the well-reasoned decision of the Assistant Commissioner and find the SFRA constitutional as applied to LPSD.

Mr. Lang and his co-counsel Professor Trachtenberg have now replied to this opposition 

Their brief states in part:

The argument in the appellants’ brief supporting this appeal that the State, not local districts, has ultimate responsibility for assuring that the students receive T&E.

The State got what it paid for—a long, detailed report focused on the alleged inadequacies of the district’s educational management and dealing not at all with SFRA’s application to LSD and adequacy to meet the educational needs of LSD students.

The bad news is that the State’s response to your remand offer, both as manifested in the AC’s FAD and in the State’s latest brief, provides you with little help in deciding the central question of whether SFRA is unconstitutional as applied to LSD and its demonstrably unique demographic circumstances.

Inexplicably, the State’s brief addresses none of those matters. That leaves a gaping void that this court can and must fill by rendering a decision on the constitutionality of SFRA as applied to LSD.

Despite the State’s continuing efforts to confuse and complicate matters, this is a straightforward case: 

1. The New Jersey Constitution guarantees students T&E;

2. The state is ultimately responsible for assuring that;

3. SFRA is the vehicle the State has chosen to assure that every district has enough funding to guarantee that its students receive T&E;

4. To accomplish this, SFRA has to be fully funded and periodically evaluated and, if need be, adjusted to assure that every district, in respect of its particular circumstances, has enough assured funding for its students;

5. LSD students are being denied T & E;

6. This court remanded the matter to the Commissioner for one explicit purpose - to consider the students’ argument that SFRA was the reason for their denial of T&E;

7. Instead of responding to that judicial mandate, the State has sought to place the blame entirely on the local district in direct contradiction of more than 50 years of New Jersey Supreme Court jurisprudence that the State is ultimately accountable for T&E, and for doing everything necessary to achieve that up to and including assuming operational responsibility for districts that simply can’t carry out their delegated responsibilities.

Accordingly, this court must couple a constitutional judgment that SFRA is unconstitutional as applied to LSD with remedial instructions that assure the student-appellants’ fundamental constitutional rights are vindicated, at long last, as soon as possible.

There is no better way to make this point and conclude this reply brief than by quoting again Justice Albin’s eloquent statement in Abbott XXI: Children go to school for a finite number of years. They have but one chance to receive a constitutionally adequate education. That right, once lost, cannot be reclaimed. The loss of that right will have irreparable consequences, particularly for the disadvantaged children to whom SFRA was intended to give a fair chance at a thorough and efficient education. Abbott v. Burke (Abbott XXI).

Mr. Lang previously filed a motion to accelerate the appeal. As is their practice, the State vehemently opposed the motion. Ultimately the court denied the motion.

In his reply brief, Mr. Lang renewed his request to accelerate the appeal.

Oral arguments on the appeal have not yet been scheduled.

While R' Aron continues to work tirelessly for fairer funding for all of Lakewood, Township and School District officials - including the incumbent Board of Education members who previously claimed to openly support R' Aron - remain silent regarding the Commissioner's continued efforts to subterfuge fairer funding for Lakewood. 

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