BACON, et al., ) ) TRANSCRIPT Plaintiff, ) ) OF v. ) ) DECISION NEW JERSEY DEPARTMENT ) OF EDUCATION, ) ) Defendant. )

Transcription

1 SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL PART MERCER COUNTY, NEW JERSEY DOCKET NO. MER-L-- A.D. # BACON, et al., ) ) TRANSCRIPT Plaintiff, ) ) OF v. ) ) DECISION NEW JERSEY DEPARTMENT ) OF EDUCATION, ) ) Defendant. ) Place: Mercer County Civil Courthouse South Broad Street Trenton, NJ 00 Date: December, 0 BEFORE: THE HON. MARY C. JACOBSON, A.J.S.C. TRANSCRIPT ORDERED BY: THERESA LUHM, ESQ. (Education Law Center) APPEARANCES: DAVID SCIARRA, ESQ. (Education Law Center) THERESA LUHM, ESQ. Attorney for the Plaintiff DONNA ARONS, DAG (Office of the Attorney General) Attorney for the Defendant Transcriber, Vidhya Veerappan J&J COURT TRANSCRIBERS, INC. Evergreen Avenue Hamilton, NJ 0 (0)- FAX NO. (0)- jjcourt@jjcourt.com Website: Audio Recorded Audio Operator, Jeff Starr

2 0 THE COURT: Good morning, this is Judge Jacobson. And this is the time that the Court has notified the parties that it will provide an oral decision in the matter of Bacon versus New Jersey Department of Education, Docket Number MER-L--. The Court heard oral argument in this matter last -- I think it was last Thursday I believe and reserved a decision. And even though there s not going to be any argument today, I did invite counsel to be on the record so that they could hear the oral decision as it s being rendered. And so if counsel for plaintiff wishes to place their -- if you would place your appearance on the record. They are listening in on conference call. MR. SCIARRA: Thank you. Judge Jacobson, It s David Sciarra, attorneys for plaintiff. My cocounsel, Fred Jacob, just notified us that he cannot be on this call. And joining me is Theresa Luhm also from the Education Law Center. THE COURT: And for the defendant? MS. ARONS: Donna Arons, Deputy Attorney General. THE COURT: Okay. Last week when I heard the argument, I reserved decision. And sometimes when I 0 reserve a decision, it takes me quite awhile to get the decision out. But you know I was struck with the you know in the course of the arguments with some of the concerns about the longevity of this litigation, originally having started in and leading to a State Board determination that the so-called Bacon districts are you know were not providing a thorough and efficient education as of 00. And then on up through the Appellate Division decision and the needs assessments being performed in 00. So at the risk of today, not having a perhaps a completely coherent oral decision, I thought it was better since I had been focused on the issues prior to the argument that it -- that I nonetheless provide the oral decision quickly after the oral argument rather than waiting and having other things distract my attention. You know I did set forth at the beginning of the oral argument, my whole sense of the history of this litigation and where we are today. And that is specifically with a complaint that s been filed on behalf of the Bacon districts under Rule :- which is the rule that allows the enforcement of agency orders. And the plaintiffs came to this court at

3 0 least in part because back in 0, they had filed an action -- a motion in aid of litigant s rights in the Appellate Division following up on the decision that had been provided by the Appellate Division in the Bacon case that forms part of the history of this case and that s at, N.J. Super. 00 from March of 00. And there, the Court had looked at the new funding mechanism, the SFRA which had just been adopted right around the time of the -- just before I guess, a few months before the oral argument in this case. And the Court had you know had said in its decision that they were going to affirm the State Board s decision as to the finding of violations of thorough and efficient education in the Bacon districts. But the Department of Education in cooperation, and then the legislature actually, following the suggestions of the Department of Education, had recently adopted a new funding scheme under the SFRA. And the Court wanted to give the Department of Education the chance to provide -- or to have that funding provided and then to see if that remedied the problems that had been found by the State Board in the Bacon districts. But they also directed that the Commissioner of Education do a needs assessment to analyze the special needs of the Bacon districts because the State 0 Board had refused to adopt the Abbott parity financing remedy and said that the problems in the Bacon districts were really a -- that they faced a unique set of circumstances that are different from those confronting the poor urban districts, and that the State Board was not at all clear that parity funding was the answer to the T&E violations that had been found in the Bacon districts. And the Appellate Division did not differ with that. It affirmed the State Board decision and sent the matter back to the commissioner, as I said, both for the needs assessment and to see if the SFRA funding satisfied the constitutional concerns that had been raised by the State Board. Then the needs assessments were done in 00. And both parties before me in the oral argument took the position that the needs assessment found that a thorough and efficient education was being provided in the Bacon districts as of that time in 00. And at that time, of course the funding under SFRA was -- it was fully funded. So the needs assessments were based on that fact. And the needs assessments don t say anywhere that they found a thorough and sufficient education. In fact they highlighted a number of particular issues

4 0 in each district and commented on there having been, to some extent, remedied, and then provided other avenues, different kinds of consultants that were going to be provided and so forth. But the needs assessments are by -- they are 00 assessments based upon what the status was of this complicated litigation in 00. And then of course, subsequent to 00, there was a fiscal crisis and one of the legislature s response to the fiscal crisis was to cut the SFRA funding. Now in terms of the Abbott cases, it s very well documented in the two -- you know in Abbott XXI. And in the report of Judge Doyne, the special master, that the cuts to SFRA were found to violate T&E education by the Supreme Court, and the Court directed that for the Abbott districts, the SFRA be fully funded in Abbott XXI. And -- but the Court was very careful there to limit the relief to the Abbott case which was before it. And you know it was interesting to me to go back and look at that Abbott XXI and also to see Judge Doyne s special master report in part because Buena you know represented by Mr. Jacob was you know provided -- the Buena superintendent, this was from the Bacon district, was one of the witnesses at that -- before 0 the special master. And I think Mr. Jacob participated, as well. But the -- nonetheless despite the plaintiff s -- I believe, the gist of it was that they were seeking to have the SFRA fully funded as to all districts in New Jersey. That was something that the Supreme Court did not endorse. After the Supreme Court s decision, at least I think this is correct factually -- after the Supreme Court s decision in Abbott XXI, these -- which I think was in May of 0. I know I have all of the -- yeah, May of 0. It was thereafter that the Bacon districts filed their motion in aid of litigants rights before the Appellate Division that had heard the Bacon case. And in fact a little bit of that record was provided to this Court by the -- you know by the plaintiffs in terms of what they put before the Appellate Division and I think specifically Judge Parrillo was, I believe, the judge that had authored -- yes, he had authored the Bacon Appellate Division decision. And it went back to him and some other judges. And they -- if the plaintiffs there not only provided the needs assessments apparently, but they also relied on what the Supreme Court had done in

5 0 Abbott XXI in ordering the governor and legislature to fully fund SFRA for the Abbott districts. And essentially, and were -- they were asking the Appellate Division to extend the Abbott XXI remedy to the Bacon districts. As a matter of fact, one of the things that been provided to the Court for its review here is Mr. Jacob s certification to the Appellate Division as part of the motion in aid of litigants rights. And Mr. Jacob noted there that the Supreme Court was obviously unaware that the Bacon districts had also been determined to be special needs districts constitutionally deprived by the earlier CEIFA, C-E-I- F-A, funding. And they argued to the Appellate Division that the SFRA, same kind of remedy that was applied to the Abbott districts should also be applied to the Bacon districts especially when the 00 needs assessments had relied upon the funding provided by the SFRA. And the Bacon districts applied to the Appellate Division seeking an emergency order so that the Bacon districts would be treated the same way as the Abbott districts. But Judge Parrillo refused to you know refused to grant that relief and said you know instead 0 in this one paragraph order that the -- to the extent that the motion in aid of litigants rights is seeking redress from essentially from the needs assessments September 00, there recourse was to have appealed from those needs assessments back to the you know to the Appellate Division. And the Appellate Division found that the specific relief requested in the motion to enforce litigants rights pursuant to Rule : was not encompassed no contemplated in the Appellate Division s decision in Bacon. And in Bacon, as I think we mentioned last you know last Thursday at the oral argument, the Appellate Division had affirmed the State Board finding of T&E violations in the Bacon districts but had not ordered parity funding following the Abbott rationale. Instead, they had ordered needs assessments and then the Department of Education was looking at a systemic way to systemically address the public education in New Jersey. And that was the SFRA. And that was to you know about to be implemented. And the Court took sort of a wait and see attitude, but noted that that was the approach being taken by the Department of Education. And it wasn t at all clear it would be inadequate. It could very well be adequate.

6 0 But the end of the order from the Appellate Division is why we have the plaintiffs before this Court, trial court in Mercer County, and that s to the extent the movants seek to enforce or compel compliance with any aspect of the September th, 00 administrative agency determinations. There are recourses by way of summary proceeding pursuant to Rule :-. That rule is you know is something that you know is interesting to me having to look at it in the context of this case is not something that there has been a lot of case law on. But :- provides that -- it s called summary proceedings to enforce agency orders. And the applicability of the rule states that it s applicable to, one, all actions by a stated administrative agency -- I m just leaving out some other things -- brought to enforce a written order or determination entered by it, whether final or interlocutory, and whether the order to be enforced requires the payment of money or imposes a non-monetary requirement or includes a combination of monetary and non-monetary remedies, and all such enforcement actions brought by a party to the administrative proceeding in whose favor a written order or determination was entered, affording that party specific relief. 0 And another section of the rule. I think it s (c)(), notes that the validity of the agency order shall not be justiciable in an enforcement proceeding. So one of the things that s troubled me from the first time I got this lawsuit was the use of this rule for needs assessments that do not provide the specific relief explicitly do not provide the explicit relief that is sought by the plaintiffs here which is a determination that a thorough and efficient education in the Bacon districts requires the full funding under SFRA in the same way that the Supreme Court determined that the Abbott districts required full funding of SFRA to provide a thorough and efficient education. And you know going back over some of the -- you know how the sequence in Abbott and comparing it to the sequence here and the procedural history here just further underscores the -- my serious concern about the use of this rule to accomplish what the plaintiffs are seeking. And despite the fact that Judge Parrillo said that the plaintiffs could come here, Judge Parrillo did not have before him an application under :- and the needs assessments and trying to fit these needs assessments into you know into the enforcement of an agency order or determination which is the thrust of

7 0 the court rule. Now plaintiffs have pointed out that they did provide him with the needs assessment. So they were something that he had. But he wasn t faced with the substance of having to look at the needs assessments and look at the rule to enforce the agency orders to determine if the rule lent itself to you know to -- and this -- the kind of enforcement proceeding and the kind of relief that the plaintiffs are seeking here. And in fact, in their complaint, the plaintiffs not only are seeking a calculation of the full SFRA funding for all the Bacon districts and then direction to the Department of Education to request that funding, full funding, from the legislature, but they also added in their complaint that they were seeking such other relief as the -- let s see. Undertakes -- in (e), undertakes such other district specific remedial measures as identified in the 00 assessments or as otherwise necessary to ensure the effective and efficient use of funds in the district s budgets otherwise necessary. Well, it seemed to go beyond the four corners of the relief they sought. And it seemed to go -- certainly went beyond the four corners of the needs assessments themselves. And they also asked for -- you 0 know this is a typical thing you put in the complaint, other relief the Court may deem necessary -- appropriate and necessary to ensure remediation of the constitutional violation found in this litigation. And that is something that I don t believe this Court has the jurisdiction to do because of the nature of :- which really you know it s a very narrow, very narrow rule. And the Court has to accept as valid the agency orders, notably in that nature -- in that (c)(), it does speak about agency order rather than determination, although the rule itself encompasses both. If the order -- you know this -- let s see. If there s any appeal from -- and part of the reason for the construction of the rule as I understand it is to preserve the Appellate Division s jurisdiction over final actions and decisions of the state administrative agencies. You know as I mentioned, there s very little case law on the rule. But in one case, In Re A- Jersey Moving and Storage, Inc., 0 N.J. Super., at Pages 0 to (App. Div. ), it mentioned that the thrust of the rule was designed to provide judicial remedies in aid of agency orders where necessary, and that the summary proceedings in the rule were never

8 0 intended to supplant other jurisdictional exercises by state agencies. Nor could they have been so purposed without intruding on the authority of the legislature to grant each agency its express and implied powers. And the -- so the Court -- I mean the Court rules are delineating this very narrow band where a trial court can enforce an agency order but needs to be very careful not to intrude on agency authority. And a party that seeks to enforce an agency order must show that the defendant has failed to comply with the order and the Court s assistance is necessary to secure compliance. So the defendant here is the Department of Education, but it s the legislature that has not provided the -- you know whose appropriations have led to the cuts. So you know in what way has the Department failed to comply with the order, you know with its own determinations that were based on the information before the Department in 00? And just you know the Judge Pressler, the comments in the court rules notes that the general design of the rule is to vest the trial divisions of the Superior Court with broad jurisdiction to deal with the enforcement proceedings required to be initiated by way of summary action, but to preserve fully the 0 exclusive jurisdiction of the Appellate Division to review the merits of state agency determinations pursuant to Rule :-(a)(). And you know this absence of case law and also my whole experience with summary proceedings, having done a lot of them in the Chancery Division, and continuing to do quite a few now as assignment judge is that your record is very limited. And the relief sought here is really sweeping. And it s really to ask for the same relief for these districts as was provided to the Abbott districts under Abbott XXI. When the Supreme Court itself refused to go that far despite being urged you know I m sure as passionately as plaintiffs urged me to extend it here, the Supreme Court refused to go that far, and recognized that in the case before them, there was a specific record with specific school districts. And so that plaintiffs may ultimately be able to show their entitlement to the relief they seek here, you know I really don t know. Perhaps they will be able to. But the Court is going to grant the State s motion to dismiss and dismiss the complaint because I simply cannot on the basis of the record that s before and the reliance on this Rule :- find that the relief that s sought is clearly, explicitly

9 0 contemplated in the 00 needs assessments. In fact, it could not be encompassed in the 00 needs assessments because at that point, the SFRA was fully funded. In fact, they were going into Year as those needs assessments I think were finally released. And so the relief that plaintiff wants was not even factually -- was not even the state of the facts in 00. And when we re dealing with such a complex and multifaceted issue as school funding on the basis of a 00 order that is now brought before this Court and now it s December of 0, this is more than five years later after those needs assessments were finalized. The Court simply cannot shoehorn the relief that s sought here under this rule. And one thing that was completely unexplained by the plaintiffs was despite their you know passionate plea for urgency, completely unexplained as to why the motion in aid of litigants rights that they brought in August of 0 and were told by -- and it was denied by Judge Parrillo in I think it was just the very early 0, there was no explanation given to this Court for the delay of two and a half years. And whether or not that would have made a difference, I don t know because that was two and a half years ago. But my only point 0 is that the record here and the 00 needs assessments are even staler with the additional passage of time. And you know with this incredibly sensitive and important issues that are at play here, and when you -- I just don t see -- I m just not comfortable as a trial court saying that I can order what the plaintiffs have requested on a record that s five years old. And when I look at the parallel to Abbott, both when the SFRA was urged by the State to be the answer to the T&E constitutional violations in the Abbott districts and when there was the -- they followed up with the -- when the funding cuts came and they sought to say that the funding cuts meant that thorough and efficient education was not being provided in the urban districts. There was a special master, Judge Doyne, who was appointed. And his reports are incorporated into the Abbott decisions. And there were witnesses, fact witnesses and expert witnesses and full -- you know very full explication before the Supreme Court itself would even address these complicated issues. And I don t have any of that here. I have a 00 series of needs assessments that do not explicitly identify the specific relief that plaintiffs are asking

10 0 for because the facts that the commissioner or the Department of Ed had before them in 00 are different than the facts in 0 and are further different from the facts in 0. The complaint that was brought here, brought before the Court also only attached one needs assessments, that was for the Clayton School District. And yet they were seeking to have a very broad-based relief across the board with -- despite their being many different issues that were raised in all of these unique school districts. You know I think I mentioned in the course of the colloquy the ones that sort of stood out to me, and that is, back in 00, the commissioner identified the problem with Lakewood that -- and at least the way I read the needs assessment, that Lakewood was spending so much money on courtesy bussing for non-public students that perhaps even that money itself could, if directed to its public students, many of whom were disadvantaged, could you know could really part of the solution or a main part of the solution to Lakewood s problem. Now that wasn t provided to me by the plaintiffs until the Court asked for it. But you know there s a certain you know specific circumstances with Lakewood for example. 0 And Buena, you know it s -- as I mentioned, Mr. Jacob participated in Abbott and certainly Buena was, I think it was their superintendent testified. But the needs assessment for Buena talks about how they used their SFRA funds for tax relief and not for educational improvements. But yet, it was represented to me by the Deputy Attorney General that all of the needs assessments from 00 reflected a thorough and efficient education even though thy didn t say that explicitly because there was no -- if it didn t reflect the T&E education, the commissioner would have had to directed relief for that entity. And it appears that the plaintiffs agree with that because they re saying that the needs assessment for 00, based upon full SFRA funding did provide a T&E. And now all that has to be done is that the full SFRA funding is provided to the Bacon districts and they will be providing -- that they will then provide a thorough and efficient education to the students in the district. So my to-take from that, that in 00 when the commissioner says that the additional SFRA funding was used for tax relief in Buena and not for educational improvements, if that s what happened and Buena was still providing you know a T&E education,

11 0 0 what do I do with the situation now when there is a cut in SFRA, if they were providing it then, are they not -- you know I mean what s the situation now? And I m only going over some of the needs assessments just to show the complexity of the issues because we have so many different districts with such you know such different factors, different type of school populations, for example. And then it s not a cookie cutter approach which the State Board had actually recognized back in 00 that the rural, poor districts, many of them had certain unique problems that did not exactly mirror the Abbott districts, although they do have significant percentages of kids at risk. I don t mean to minimize that at all. I just mean to raise issues that I saw in looking at the record that was provided to me in this case and problems with that record when compared to what the plaintiffs are asking me to do in terms of the sweeping remedy and on such a record that does, in my view, that doesn t lend itself neatly to the sweeping remedy here in 0. Another district, Hammonton, for example, I remember looking at their needs assessment. And by the time that was finished, Hammonton was found to be a high proficiency district. I think it had -- there are 0 certain areas -- I think there are five different areas that the Department of Education has used evaluate school districts. And if you re 0 percent in all five, you are considered a high proficiency district. And my recollection was that Hammonton was in that category. One of the other -- so for Hammonton is that, if they were high proficient in 00, you know what does -- it just was something again that struck me that would they lose that high proficiency based upon the cut in funding. You know I don t know. And one of the things that really is striking when you look at these needs assessment is the large number of these rural districts that are so small that there are real issues as to whether funding in and of itself can lead to a thorough and efficient education. And that s because when you look at the thorough and efficient education, my view of this record here is that -- I don t know -- educational inputs or curriculum is key for so much of the student achievement. And as a matter of fact, all the needs assessments went over whether or not each of the Bacon districts was providing curriculums that were aligned with the State core curriculum content standards. And

12 0 even if they -- if the curriculums were not aligned at the beginning of the needs assessment process, I think it was either 0 percent or close to 0 percent that were fully aligned at the end of the process. And so that was again something that was you know that struck the Court in terms of what the focus was of the needs assessments. And the small districts, I think this is the point that I meant to make. The small districts, they don t have economies that scale. And they also don t have -- it s very difficult for them to offer a broad curriculum offerings, particularly when you get to the high school level. Now a number of these districts only go through eighth grade. A few of them do have high schools. But the needs assessments really identified regionalization as a prime goal to provide a T&E education for kids in the really small districts. And I don t have a record that shows me what happened with that initiative. The sense I m getting or the sense -- I think there might have been something actually in Judge Doyne s report that -- there was something I read in either in some of the case law -- probably in the case law because the record here is so truncated that noted that they re regionalization despite the 0 directive given by the commissioner of education to the county superintendents to make these Bacon districts a high priority for regionalization, I guess my sense is that under the statutes now, you have to look at the wealthier adjoining districts for regionalization. And I mean I don t know if there s been any regionalization in any of the Bacon districts. Certainly that was not represented to me by anyone. I know that the -- I think it was the Deputy Attorney General underscored how important regionalization was. But again, many of these districts you know that was a key. There were a couple of districts too where the commissioner was very concerned about the labor agreements because the labor agreements really seem to lock in the district to shorter instructional time you know for teachers than really something that was appropriate because so many of these at-risk kids need more attention. And so the -- in any event, when the Court has you know looked at the full record here, I don t see a record that mirrors the Abbott record. We have a State Board that said, yes, there are T&E violations in the Bacon districts, but we re not awarding Abbott funding parity. We re not at all convinced that s necessary here because of the unique circumstances of

13 0 these small districts. I mean like Wallington for example, I was struck they have a huge number of kids who don t speak English at home, they speak Polish. And so their needs in that small community were you know very different than you know some of the other Bacon districts. So when it went it to the State Board, there was no Abbott parity required. And then when SFRA came in, that was the systemic approach. So it wasn t going to -- it was going to base things on -- you know base the funding on the percentage of at-risk kids or number of at-risk students in each district whether they be an Abbott district or a Bacon district. And we know what happened in Abbott XXI, but -- and whether or not it should happen with Bacon, as I said, to me on this record, I m simply uncomfortable making that leap based on this you know the age of this record. And even the Appellate Division, while they certainly mentioned SFRA and wanted to give it a chance, they also you know mentioned that the unique circumstances of the Bacon districts and how the needs assessment would be an important starting point to assess the adequacy of educational inputs and adequacy of programming and to identify the unique educational needs of students in those districts and the programs 0 that would address those needs. I mean the State Board itself had thought it was, in its decision, that it was time to abandon the use of money as a surrogate for educational equity. Now of course the Supreme Court of New Jersey has said that s what we have. We have -- you know we ve got to look at the funding and make sure that the opportunity is equalized you know for the high needs districts. But we just don t have the same kind of record for Bacon nor the same -- nor a conclusion in 00 that SFRA full funding is necessary to provide the T&E education. They had it then and they saw -- the commissioner saw it as a critical tool. But I just can t make the leap from what s in those needs assessments to say that the evolution which led to the legislature s cuts mandates the full SFRA funding for the Bacon districts in order for them to obtain T&E. As I said, maybe that can be proven on the basis of a different record, but it simply doesn t fit neatly into this -- into the summary action that s before me under Rule :-. One of the things that -- you know I mentioned the regionalization but I m not sure if I also mentioned the fact that the SFRA funding mechanism, the formula, really looks at -- it doesn t

14 0 take into account many of these very small districts. It doesn t help to be a small district in terms of funding under SFRA. I think that came out in the record here. And even in some of the needs assessments, in a few of them in any event, they mentioned that in Year, there was going to be no increase. And I think it was something like Woodbine, even in the first year -- which is a very small district -- it was something like -- it was a very small percent of increase they got under SFRA. And I m only saying that again, to underscore the complexity of the issues that have been put before me. You know I also at one point in the colloquy with counsel focused on preschool because the SFRA provided for preschool for at-risk kids. And the complaint here is claiming that there are upwards of,000 at-risk kids now in Bacon districts that are not getting preschool. Well, that s asserted on the face of the complaint. And you know we went through this in the colloquy, the Department hasn t denied it, but they moved to dismiss. So I don t really have clear facts in front of me. But typically, in a motion to dismiss, you assume the facts in the complaint are true. So I 0 was focused on preschool and whether or not the failure to provide the full time preschool for these at-risk three and four-year olds is something that would make it -- you know it would deny them the thorough and efficient education. But then again, you know it s -- the 00 needs assessments didn t clearly and explicitly set forth that relief. And because they didn t that state of facts. And I think the Deputy Attorney General mentioned three of the districts have the full time preschool. But then suggests that there are at least others that don t have the full time preschool, leading to maybe these,000 students that the plaintiffs have identified in their complaint. So it is troubling to the Court in light of the goals in SFRA not to have the preschool programs in place. But again, it s -- I have very little understanding of what the funding is for preschool. And if the T&E -- if what was provided under the -- if what was in the needs assessment constitutes a thorough and efficient education as the State has represented and as the plaintiffs represented, at that time, there were many -- most of the districts I think did not have the full preschool because it was too new.

15 0 I think SFRA gave five years to do it. And so -- and I don t know in terms of how the districts were using their funds that were made available through SFRA. So again, while I was looking at that as something that -- could I say that that was required and that you need full funding from SFRA to get the you know to get the you know the T&E because you ve got to focus on these younger kids, that s really been shown to be educationally critical? But I didn t feel comfortable based upon the needs assessments I had to come to that conclusion in 0. And then there are facilities issues as well. And there s a separate statutory scheme for facilities. But facilities issues were certainly identified in the needs assessments. And some of the districts had moved toward making application to get state funding. Other districts new they wanted projects, but had not sought approval. And again, very complicated because facilities are part of thorough and efficient education. And the plaintiffs did seek in their complaint to you know to have facilities issues addressed in that they sought to direct the Department of Education to develop and implement district-specific plans for facilities, improvements and financing as 0 maybe necessary and consistent with the Educational Facilities Construction and Financing Act commencing in the 0 to 0 school year. I don t know that has -- on this record here, I don t know whether that s been done or not because it was clear in the needs assessments that the Department of Education was evaluating facilities and it was providing information to the school districts as to how to qualify for facilities improvements. But again, I have an end of 0 situation with almost nothing but some allegations in a complaint because that s all you have in a summary proceeding. And so again, I m just too uncomfortable using this rule and these needs assessments to provide this extremely broad relief that the plaintiffs are seeking you know are seeking here. And let s see. You know I went back, you know there were certain things that were raised before me in the argument. I went back to you know look at Ms. Spicer s (phonetic) certification again and when the State asked for an extension of time to do a needs assessment. And one of the things that she commented on was that again, the great variation of needs among these districts. And she did say, we re looking at SFRA and whether it provides the thorough and efficient

16 0 0 education. But you know as I said, it s the 00 record here. And it was based on the full funding. And so there was never any finding as to what level of funding under SFRA was essential to provide a T&E in these districts and whether you can -- you know the Abbott districts certainly are viewed as you know as having similar enough problems that they ve been treated together. And the record that was made before Judge Doyne in both Abbott XX and Abbott XI was a broad-based record. And so could that be sufficient here you know for the Bacon districts? Maybe. But again, I don t have a record that leads me to be comfortable with that because there are different needs assessments with unique needs. And some very specific comments, as I mentioned before, the need for small districts to regionalize to really be able to provide the kind of course offerings that we associate with T&E. And so I just -- as I mentioned over and over, the record is such that -- particularly when comparing it to the Abbott record and the comments that were made by the State Board and the Appellate Division as to the unique circumstances of these districts and then having different needs assessments for very, 0 very varied districts, and then yet to ask for this broad brush in terms of relief when the current scenario was not what was before the commissioner or the Department of Education when the needs assessments were completed. And the needs assessments don t really comment on subsequent developments. I think they look -- they assume that there s going to be the full funding. But it was an expectation. And we don t -- there s no analysis of the impact on these very varied districts when you know when the SFRA was not fully funded. So when you got a motion in aid of litigants rights, I think the -- well, some of the case law mentioned that this motion to enforce an agency order is sort of an analog of a motion in aid of litigants rights. When it comes, you know, so long after the needs assessments on which it s based, the Court remains uncomfortable in providing relief that goes beyond the explicit language in the needs assessments. And you know I know that the rule says orders or determinations. But it also says specific relief which is what the State really focused in on in their you know in their brief that there was no specific relief of the nature that the plaintiffs are seeking

17 0 here. And that certainly is my conclusion too. I mean just even on the face of the assessments, they don t state the minimum needed for a thorough and efficient education. They don t have any really directory language. There s no omnibus order directing all the district -- making conclusions as to the districts as a group or concluding that full funding of SFRA is necessary for a thorough and efficient education in each one of the Bacon districts. So I find that the relief sought by plaintiffs is not appropriate under Rule :-. And let me just check here and see if there s anything else I think I need to add. No, I don t think so. So for all those reasons, the Court will grant the State s motion to dismiss and dismiss the complaint. And we ll get out an order to counsel. But I want to thank all of you for the work you did on this case and the argument which helped to flesh out the issues for the Court. Thank you very much. That ends the decision. Bye-bye. MS. ARONS: Bye. Thank you. * * * * * C E R T I F I C A T I O N I, VIDHYA VEERAPPAN, the assigned transcriber, do hereby certify the foregoing transcript of proceedings on compact disk, playback number :: to ::, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded, and to the best of my ability. /s/ Vidhya Veerappan VIDHYA VEERAPPAN AOC # J&J COURT TRANSCRIBERS, INC. DATE: December, 0