ROBINSON v. CAHILL

PASHMAN, J. (concurring in part only and dissenting).

Two years ago, when in Robinson v. Cahill, 62 N.J. 473 (1973) ( Robinson I) this Court held the system of school finance presently in operation in New Jersey violative of the education clause of the Constitution of 1947, N.J. Const. (1947), Art. VIII, § 1, ¶ 1, it chose to postpone imposition of a remedial order until January 1, 1975 so as to give the Legislature a reasonable period in which to satisfy the mandates of the Constitution. Robinson v. Cahill, 63 N.J. 196 (1973) ( Robinson II). Earlier this term the Court again declined to impose an immediate remedial order in the expectation that the Legislature would perform its constitutional duties. Robinson v. Cahill, 67 N.J. 35 (1975) ( Robinson III). The effect of this exercise of judicial self-restraint (which I considered unwarranted even at the time, see Robinson III, supra at 40 (Pashman, J. dissenting)) has been to delay implementation of any substantial relief until the 1976-77 school year, at the earliest.

By its terms, the education clause imposes on the Legislature the primary duty to "provide for the maintenance and support of a thorough and efficient system of free public schools." In permitting the grave constitutional violations recognized in the first Robinson decision to pass unremedied for so long, the Court has sought to render every possible deference to the primacy in this field granted to the Legislature by the Constitution. The Legislature, however, has not acted. We have long since reached the point beyond which continued toleration by this Court of the status quo would implicate the Court itself in these constitutional violations, see Robinson III, supra at 42-44 (Pashman, J. dissenting), for the judicial branch has an affirmative duty to act to protect the rights of citizens which are guaranteed by the Constitution, even — perhaps especially — in the face of the legislative inaction. Cooper v. Nutley Sun Publishing Co., 36 N.J. 189 , 196-97 (1961); King v. South Jersey National Bank, 66 N.J. 161 , 177 (1974) (dictum); see Asbury Park Press, Inc. v. Woolley, 33 N.J. 1 (1960).

Some may have construed the Court's reluctance to impose a remedial order as abandonment of the constitutional principles announced in Robinson I. Such a construction would mistake judicial respect for the spirit of the constitutional principle of separation of powers for loss of judicial will to vindicate rights guaranteed by the Constitution. No error could be greater. Today's decision, despite its other shortcomings, is evidence that this Court remains resolved to exert its remedial powers to rectify the violations of the education clause identified in Robinson I. To fail to do so would involve a profound abdication by the Court of its constitutional responsibilities.

Necessarily, this course will carry the Court into hitherto unexplored territories in the realms of constitutional law and equitable remedies. It is a course, however, which was implicit and foreseen in our prior decisions in this matter. See Robinson I, supra, 62 N.J. at 520-21; Robinson II, supra, 63 N.J. at 198; Robinson III, supra, 67 N.J. 37-38. The fact that such a course requires investigation of novel and difficult questions of law, see, e.g., Jackman v. Bodine, 43 N.J. 453 (1964); Asbury Park Press, Inc. v. Woolley, supra, or that it may require the Court to make controversial or unpopular decisions, Ridgefield Park v. Bergen County Board of Taxation, 31 N.J. 420, 431 (1960); cf. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), is no grounds for turning aside.

I concur in the general decision of the Court to order some form of relief for the 1976-77 school year and in its determination that it has the power to enjoin the distribution of "save-harmless aid" and of "minimum pupil aid" under the Bateman-Tanzman Act, N.J.S.A. 18A:58-1 et seq., and to order redistribution of those moneys in accordance with the more equalizing "incentive-equalization" formula contained in N.J.S.A. 18A:58-5(b), as a first step toward remedying present violations of the education clause.

In my opinion, however, this remedy, while within the powers of the Court and adopted with a proper spirit of commitment to ultimate implementation of the education clause, is not commensurate with the magnitude and importance of the wrong. I would order relief both broader in scope and calculated to more directly implement the mandates of the education clause as construed by our prior decisions in this case.

I

This case concerns the inequality of educational opportunity that has resulted from the wide disparities in resources devoted to educational purposes in the various local school districts in New Jersey. In Robinson I, supra, the Court did not hold that disparate educational expenditures were ipso facto unconstitutional as a matter of constitutional equal protection. 62 N.J. at 482-501; cf. West Morris Regional Bd. of Education v. Sills, 58 N.J. 464 (1971), cert. denied 404 U.S. 986, 92 S.Ct. 450, 30 L.Ed.2d 370 (1971). Rather the Court found that N.J. Const. (1974), Art. VIII, § I, ¶ 1 imposed upon the State the duty to insure that a certain minimum level of educational opportunity is provided every student. 62 N.J. at 513-15. It held that while the State may delegate the actual administration of the public schools to local school districts, it cannot delegate the ultimate responsibility for "maintain[ing] a thorough and efficient system of public schools." N.J. Const. (1947), Art. VIII, § IV, ¶ 1. The fundamental constitutional defect in the present system of school finance was identified by the Court as abdication by the State of this responsibility.

This is, of course, only one possible definition of equality of educational opportunity. See generally McDermott Klein, "The Cost-Quality Debate in School Finance Litigation: Do Dollars Make a Difference," 38 Law Contemp. Prob. 415, 416-23 (1974); Wise, "Legal Challenges to Public School Finance," 82 School Rev. 1, 15-19 (1973). The use of this definition by the Court throughout this litigation should not be understood as foreclosing the possibility that other definitions may be more appropriate to other circumstances to which the education clause applies.

[I]f the State chooses to assign its obligation under the 1875 amendment to local government, the State must do so by a plan which will fulfill the State's continuing obligation. To that end the State must define in some discernible way the educational obligation and must compel the local school districts to raise the money necessary to provide that opportunity. The State has never spelled out the content of the constitutionally mandated educational opportunity. Nor has the State required the school districts to raise moneys needed to achieve that unstated standard. Nor is the State aid program designed to compensate for local failures to reach that level. * * * [ 62 N.J. at 519; emphasis in the original].

Thus the education clause requires that the State, having chosen to delegate administration of public schools to local school districts, must prescribe statewide standards for the operation of those schools so as to insure that all children are guaranteed an opportunity for an education of a certain minimum quality. It must also establish a mechanism for compelling local compliance with such standards, and where, for financial reasons, a local school district cannot comply, it must provide a means for supplementing local resources. 62 N.J. at 513, 519.

In the present case, the failure of the State to promulgate and enforce such standards for educational quality has permitted the development of great disparities in the amount of resources devoted in the various local school districts to education — disparities which appear to have no educational justification and which are not responsive to the constitutional mandate of the maintenance of a "thorough and efficient" system of schools throughout the State but rather are merely a reflection of the great disparities in relative wealth of the various school districts. 62 N.J. at 515-20.

The ultimate object of any relief ordered by this Court must be to compel the State to assume these duties, which, to the grave injury of many children in this State, have gone long neglected. Until the State has at least adopted proper statewide standards, it is impossible for this Court to even determine to what degree the present disparities are resulting in inadequate education in some districts, although the findings of the trial court put it beyond question that lack of sufficient expenditures for education is seriously harming students in at least some school districts. Robinson v. Cahill, 118 N.J. Super. 223 , 246-68 (Law Div. 1972). In the interim, the Court must move to eradicate at least the grossest disparities.

The Court accepted the finding of the trial court that as a result of the disparities among districts in resources devoted to education, the State had failed to fulfill its obligation to provide a "thorough and efficient" system of education for all pupils. Robinson I, supra, 62 N.J. at 515-16. The relationship between expenditures on education and the quality of education provided has been a much mooted question among educators. See, e.g., McDermott Klein, "The Cost-Quality Debate in School Finance Litigation: Do Dollars Make a Difference?" 38 Law Contemp. Prob. 415 (1974); Mosteller Moynihan, eds. On Equality of Education (1972); Guthrie, Kleindorfer, Levin Stout, Schools Inequality (1971); Coleman, Equality of Educational Opportunity (1966). There can hardly be any doubt, however, that adequate financing is a necessary condition for an effective educational system, even if not a sufficient one. Cf. McDermott Klein, supra at 429-30.

The redistribution of State "save-harmless" and "minimum pupil" aid ordered today is a step, albeit a small one, toward the accomplishment of such interim relief. Regrettably, the Court has not gone farther and redistributed all State aid to education and has chosen to rely exclusively upon the so-called "incentive equalization" formula, N.J.S.A. 18A:58-5(b), as its mechanism for reallocation of those funds which it does redistribute, without attempting to remedy the substantial shortcomings of that formula itself. More regrettably still, the Court has failed in today's decision to deal with ultimate constitutional violations at issue here. It has not acted at all to compel the promulgation of statewide standards of educational quality, an essential first step in remedying those violations, but has merely contented itself with interim relief, dealing only with the grossest symptoms of the failure of the State to meet its obligations and even with those only for a single year.

II

The education clause imposes initial responsibility for formulation of statewide standards of educational quality upon the Legislature and, by implication, upon administrative agencies to which the Legislature properly delegates its authority. N.J. Const. (1947), Art. VIII, § IV, ¶ 1. These bodies have broad discretion in defining those standards. It is not appropriate for the judiciary, which has no special expertise in matters of educational policy, to interfere with the exercise of this discretion except where the executive and legislative branches have altogether failed to establish standards or where the standards which have been established are plainly insufficient to meet the requirements of the Constitution.

The Legislature has expressly delegated the responsibility for supervision of the quality of the public schools to the State Board of Education and its administrative officer, the Commissioner of Education. N.J.S.A. 18A:4-10, 18A:4-15, 18A:4-23, 18A:4-24. The Board and Commissioner are expressly authorized to inquire into the "thoroughness and efficiency" of any public school and to conduct any necessary tests and examinations:

N.J.S.A. 18A:4-24.

The commissioner shall, by direction or with the approval of the state board, whenever it is deemed to be advisable so to do, inquire into and ascertain the thoroughness and efficiency of operation of any of the schools of the public school system of the state and of any grades therein by such means, tests and examinations as to him seem proper, and he shall report to the state board the results of such inquiries and such other information with regard thereto as the state board may require or as he shall deem proper, but nothing in this section shall affect the right of each district to prescribe its own rules for promotion.

The Board is also expressly authorized to promulgate, N.J.S.A. 18A:4-15, and the Commissioner to enforce, N.J.S.A. 18A:4-23, rules and regulations implementing the education clause of the State Constitution. The powers of the Board and Commissioner under these statutes have in the past been construed very broadly. See Jenkins v. Morris Tp. School District, 58 N.J. 483 (1971); East Brunswick Tp. School Board v. East Brunswick Tp., 48 N.J. 94 (1966); cf. State Bd. of Education v. Netcong Bd. of Education, 108 N.J. Super. 564 , 571-73 (Ch.Div. 1970), aff'd 57 N.J. 172 (1970), cert. den. 401 U.S. 1013, 91 S.Ct. 1253, 28 L.Ed.2d 550 (1971). The Board and Commissioner are thus statutorily empowered to formulate statewide standards of educational quality as well as being uniquely qualified to do so.

Therefore, while retaining jurisdiction in this Court, I would remand the case in part to the State Board of Education to formulate statewide standards for educational quality and to evaluate each school district to determine whether it is in compliance with those standards and, if not in compliance, whether the district has the financial ability to comply without further State assistance.

This determination would necessarily involve an evaluation of the cost of achieving a "thorough and efficient" standard in each district and in the State as a whole.

The doctrine of primary jurisdiction may demand that issues concerning the substantive educational standards required by the education clause arising in the course of this case be decided initially by the Board. Glenn View Development Corp. v. Public Service Elec. Gas Co., 57 N.J. 304 (1970); Woodside Homes, Inc. v. Morristown, 26 N.J. 529 (1958).

"Primary jurisdiction * * *" applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. * * * [ United States v. Western Pacific R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956)].

This doctrine is, of course, merely one of priority of jurisdiction and operates to give the Court the benefit of the expert judgment of the Board and Commissioner. It does not relieve the Court of its ultimate responsibility to interpret and enforce the education clause. Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 78 S.Ct. 851, 2 L.Ed.2d 926 (1958); 3 Davis, Administrative Law, § 1901 at 3-6 (1958).

The type of standards required by the education clause may be inferred from the language of that clause and the cases interpreting it. "Thoroughness" and "efficiency" are ultimately measures of the effectiveness of the public school system in performing its function — educating the children who attend it. The former Supreme Court characterized the significance of the education clause in the following terms:

Its purpose was to impose on the legislature a duty of providing for a thorough and efficient system of free schools, capable of affording to every child such instruction as is necessary to fit it for the ordinary duties of citizenship. * * * [ Landis v. Ashworth, 57 N.J.L. 509, 512 (Sup.Ct. 1895)].

Similarly, in Robinson I, we said:

The Constitution's guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market. [ 62 N.J. at 515].

The statewide standards must, therefore, be cast in terms of the quality of education which the local school districts are actually providing to the students who attend them.

The promulgation of statewide standards does not necessarily mean that all school systems must conform to a single rigid pattern. It does mean that the State may not permit diversity to be accompanied by a dilution in the equality of education provided.

The parties have briefed and argued at considerable length the merits of "input," "output" and "process" standards. See Tractenberg, "Reforming School Finance Through State Constitutions: Robinson v. Cahill Points the Way," 27 Rutgers L. Rev. 365, 421-22, nn. 276, 277 (1974). The distinctions among these types of standards may in application be more illusory than real. Ultimately a well-conceived educational system requires that educational goals be formulated, that decisions be made as to what inputs of human and material resources are required, that the resources be properly allocated among students according to their needs in light of the goals, and finally that the success of the system in achieving its educational goals be evaluated and, based upon that evaluation, the choice of educational goals, the decision as to resource needs, and the process of allocating resources to students be revised. Cf. Levin, "A Conceptual Framework for Accountability in Education," 82 School Rev. 363 (1974). N.J. Const. (1947), Art. VIII, § IV, ¶ 1 does not require either "input," "output," or "process" standards in the abstract. It does require that the State adopt educational goals which implement the constitutional requirement that the system be designed to equip each child for his role as a citizen and a competitor in the labor market and that the State adopt standards which focus upon the success of each school district in reaching those goals.

That this type of standard is mandated by the constitution implies neither that other types of standards may not also be useful nor that the process of formulating and enforcing proper standards will be convenient and free of difficulties. Indeed the Commissioner has urged upon the Court the practical and theoretical obstacles to adopting and enforcing standards focused directly upon the question of whether public schools are in fact educating the students who attend them. Nevertheless, that question is precisely the one that is of most importance to children, their parents, and, ultimately, to society as a whole.

It should be noted that the State has already established a statewide educational assessment program. N.J.A.C. 6:39-1.1 et seq.; see Ascher, "Educational Assessment," N.J.E.A. Journal 22 (Nov. 1972). While the adequacy of existing standardized tests to evaluate educational accomplishment is open to serious doubt, see, e.g., McDermott Klein, supra at 424-428; cf. Larry P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972); Note, "Legal Implications of the Use of Standardized Tests in Employment Education," 68 Colum. L. Rev., 691 (1968); but see, Berkelman v. San Francisco Unified School District, 501 F.2d 1264 (9 Cir. 1974), the establishment of a statewide assessment program is a necessary first step toward implementing standards of the type demanded by the education clause.

The Board has announced its intention to promulgate regulations implementing the education clause. Proposed Rules for Thorough and Efficient Education, 7 N.J. Reg. 132 (a) et seq. (April 10, 1975). Since these regulations have not yet been promulgated in their final form it would be inappropriate to comment upon them in any detail. Before this Court, the Board and Commission have declared that their intention is to issue regulations which establish "process" standards. They define the "process" approach as "an educational system focusing on the delivery of resources to students in the most effective way, `effective' being defined in terms of whatever works best for each individual learner." If this is indeed the thrust of the regulations to be issued, then they would not comply with the constitutional requirements.

The product of such a remand would be both a set of standards and an evaluation of how much additional money would be needed to establish a "thorough and efficient" system of public schools in all school districts. I would set a timetable for the remand so as to enable the Court to hear any appeals from the decisions of the Board and to take any steps necessary to compel implementation of the Board's decisions (with modifications by the Court, if any) for the 1976-77 school year. I would expect the Board to fully comply with the mandate of the Court upon such a remand in time for implementation of the Board's decisions in the 1976-77 school year.

At that time, it would be proper for the Court to consider what would be the most appropriate mode of exercising its power to compel provision of any additional resources needed to implement the mandates of the education clause if the Legislature had not acted in the meantime. See generally Robinson III, supra, 67 N.J. at 40-41 (Pashman, J. dissenting).

Such a remand, designed to lead to implementation of the mandates of the education clause beginning in the 1976-77 school year rather than at some indeterminate future date, seems to me both fully within the practical capacities of the State Board of Education and better calculated to fully remedy the constitutional violations identified in Robinson I than does imposition of mere interim relief.

III

Had the Court chosen to order a remand of the type outlined above, we would in all likelihood not now be faced with the awkward problem of attempting on an ad hoc basis to eradicate the grossest disparities in educational expenditures. Nevertheless, since the majority has chosen to follow that route, the method it has adopted seems to me to call for some comment.

I have no doubt as to the Court's power to redistribute existing State aid for education so as to reduce disparities among the various school districts in the resources available for educational purposes. The arguments to the contrary are considered and properly disposed of in the opinion of the majority. Ante at 146-150.

The education clause, of course, does not require the State to subsidize local inefficiency or waste. Rather the State has a duty to insure that moneys granted to a local school district are in fact properly used by that district to provide a "thorough and efficient" education for its pupils.

Even if I could approve the majority decision to order only interim relief, I would see no justification for proceeding as gingerly as does the Court today. The net effect of redistributing "save-harmless" and "minimum pupil" aid under the "incentive-equalization" formula is disturbingly small. The Commissioner of Education estimates that those categories of aid will total only $303 million in 1976-77 out of a total expenditure for public schools from all sources of $3.03 billion. Only $101 million of the money will actually be shifted from well-to-do districts to poorer ones. Thus we are effecting only about a 3% change in the overall allocation of educational resources.

This estimate assumes that the Bateman-Tanzman Act will continue to be fully funded.

The majority chooses not to redistribute State pension contributions to the Teachers' Pension and Annuity Fund, N.J.S.A. 18A:66-33; atypical pupil aid, N.J.S.A. 18A:58-6; building aid, foundation program, N.J.S.A. 18A:58-23, 24 or transportation aid, N.J.S.A. 18A:58-7, categories of state education aid which totaled approximately $309 million in 1974-75. At best these aid programs fail to respond to the problem of disparities in educational expenditures among districts which result from the gross interdistrict differences in resources available for educational purposes, thus diluting the small equalizing effect which the remedy ordered by the Court may have. Some of these programs seem to have the effect of actually magnifying those disparities. Transportation aid and atypical pupil aid are distributed to districts on the basis of actual costs, regardless of the differing ability of the various districts to obtain funds for these special services from local revenue sources. State pension contributions are made to all districts, regardless of district wealth, and may be even higher in wealthy districts, which offer higher teacher salaries, than in poorer districts. Distribution of building aid is somewhat better correlated with the relative wealth of the various districts, but the variation in aid among districts is not nearly so great as the disparities in their resources would require. All of these types of aid contribute more to the problem of disparities in educational expenditure than they do to its solution.

The situation in this case is thus very different from the one presented in Gautreaux v. Romney, 457 F.2d 124 (7 Cir. 1972), where the proposal that funding of wholly unobjectionable programs be enjoined so as to stimulate correction of constitutional defects in other programs was rejected.

The majority accepts as grounds for not redistributing these categories of aid, and most especially for not redistributing State pension contributions, the argument that including them in the remedial order would lead to "administrative confusion." One might expect that this argument, which has been dusted off, polished up, and put on display by the advocates of the status quo at every stage of this all too prolonged litigation, see, e.g., Robinson III, supra, would have begun to lost its allure. Mere injunction and redistribution of these forms of aid need have no effect on bona fide obligations local districts have to teachers, special students, students needing transportation, or any one else. The sole effect is to shift the burden of financing these obligations from the State to local school districts, which may use any available source of revenue including redistributed State aid. There is no reason to believe that in the full year between now and July 1, 1976, administrative problems in making this shift could not be solved and the feared "confusion" mastered. Mere administrative inconvenience is paltry grounds indeed for failing to forcefully vindicate rights guaranteed by the Constitution. Cf. Cleveland Board of Education v. La Fleur, 414 U.S. 632, 646, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

The majority fears that the grant of any affirmative relief for this school year would create chaos in the budgetary process in local school districts. It is undeniable that a grant of affirmative relief by the Court for this school year would complicate the process of approval of local school budgets this spring. That process is governed by the various provisions of N.J.S.A. 18A:22, which sets out a timetable for formulation and adoption of these budgets. The Legislature, however, has already pushed the timetable back for this year. L. 1974, c. 191. Even this revised schedule is not so tight as to preclude further compression, either by the Legislature, or, in the absence of legislative action, by the Court itself. Oral arguments could be scheduled in mid-February and a decision announced shortly thereafter.
A certain amount of confusion and a great deal of dissatisfaction would undoubtedly result. The first can be ameliorated by diligence on the part of State and local officials. The second, the inevitable discordant accompaniment to possible change, should play no part in our decision.
The real question is: Can this Court, consistently with its obligations to uphold and to enforce the Constitution, trade the constitutionally guaranteed rights of hundreds of thousands of children to an equal educational opportunity for the possibility of avoiding some difficulties in meeting local budget-making deadlines. I do not see how this question can be answered in any way but in the negative. [ Robinson III, supra, 67 N.J. at 42-43 (Pashman, J. dissenting); footnotes omitted].

Nor am I satisfied that the Court has acted wisely in choosing to employ the "incentive-equalization" formula contained in N.J.S.A. 18A:58-5(b) without significant modification as the mechanism for redistributing the State aid which is covered by its order.

The "incentive-equalization" formula is an example of what is sometimes described as "district power equalizing" formula. See, e.g., Coons, Clune Sugarman, Private Wealth Public Education, 202 (1970). Recognizing that a district with a small property tax base cannot provide adequate revenues for education even if it taxes itself very heavily, the "incentive-equalization" formula augments the power of the district to raise revenues by guaranteeing a certain minimum valuation per pupil. Thus, the State grants aid to the district equal to the amount the district would have raised by applying its school tax rate to the difference between the guaranteed valuation per pupil and the actual (equalized) valuation per pupil.

The "incentive-equalization" formula is not a pure district power equalizing formula because it also seeks to take into account the fact that the cost of education is not the same for all students. The cost of high school education per pupil is greater than the cost of kindergarten education. A district, many of whose students fall into categories with high per pupil educational costs, may be unable to raise sufficient revenues to meet its educational needs even though another district with the same property tax base and same number of pupils, but whose pupils fall into categories with lower per pupil educational costs, could do so.

Therefore under the "incentive-equalization" formula, pupils are placed into different categories depending on the relative per pupil cost of educating them and pupils are "weighted" in the formula depending upon what category they fall into. N.J.S.A. 18A:58-2. Thus elementary school pupils are given a weighting of 1, kindergarteners are given a weighting of .75 and high school students are given a weighting of 1.3. Rather than providing a guaranteed valuation per pupil, the State under the "incentive-equalization" formula provides a guaranteed valuation per weighted pupil. In particular, the Legislature recognized that some pupils because of cultural, social and economic circumstances, may require more costly compensatory programs, and gave an additional .75 weighting for each child in the district receiving welfare (AFDC) benefits. See generally, State Aid to School Districts Study Commission, A State School Support Program for New Jersey, 39-40 (1968) (Bateman Report).

There is a third reason why a district, even though it taxes itself heavily, might not be able to raise enough revenues to meet its educational needs. Some areas, particularly urban areas, have exceptionally high non-educational expenses which must be financed through property taxes. Expenses which are exceptionally high in urban areas include county and municipal welfare, police and fire protection, and sanitation. In these areas, revenues raised by property taxes which might otherwise be used for education, must be diverted to non-educational purposes. In addition, a substantial number of municipalities because of their size, density, and special social problems, have quite properly become involved in developing a broad range of public services, particularly in the area of human health and welfare, not provided by other smaller and more affluent communities. This, too, has contributed to the staggering rise in city expenditures, further eroding the one and the same tax base — local real estate ratables.

Hence a district situated in an area which has a heavy burden of non-education expenses may not be able to meet its educational needs, even though another district with the same property tax base, the same number of weighted pupils, and the same heavy tax rate could do so. The effects of this problem, which has been labeled "municipal overburden," on the ability of some urban areas to meet their educational needs is now well documented. See, e.g., Robinson v. Cahill, 118 N.J. Super. 223 , 273 (Law Div. 1972). Berke, Answers to Inequity, 82-86 (1974); Grubb Michelson, "Public School Finance in a Post-Serrano World," 8 Harv. Civ. Rights — Civ. Lib. L. Rev. 550, 564-66 (1973); Note, "A Statistical Analysis of the School Finance Decisions: On Winning Battles Losing Wars," 81 Yale L.J. 1303, 1314-15 (1972); Coons, Clune Sugarman, Private Wealth Public Education, 233-36 (1970). Indeed, the State Aid to School Districts Study Commission (Bateman Commission), which drafted what subsequently became the Bateman-Tanzman Act, took express note of the problem in its report. Bateman Report, supra at 9, 42-43, 55, 97-99. The Bateman Commission, however, expressly chose not to deal with this problem in devising an aid formula and no provision was made for this problem in the Bateman-Tanzman Act. Bateman Report, supra, 8-9, 42-43, 54-55, a fact that was noted in Robinson I, supra, 62 N.J. at 519. Recent attempts to reform school finance in New Jersey have consistently treated the problem of municipal overburden as an important defect in the present system to be remedied. See, e.g., Special Message by Governor Byrne to the Legislature, A Plan for Education and Tax Reform in New Jersey, 21-25 (June 13, 1974).

The majority concedes the significance of the municipal overburden problem but declines to deal with the impact of this problem on disparities in resources available for education in many local school districts because (a) many districts suffering most from the effects of municipal overburden will receive increased aid anyway under the Court's order and (b) the problem is too complicated to be dealt with by the Court. Ante at 150-152. Neither of these asserted reasons is well-founded.

As described above, the "incentive-equalization" formula contained in N.J.S.A. 18A:58-5(b) was designed to deal with two sources of disparity among local school districts in ability to finance education: differences in local property tax bases and differences in per-pupil education costs. The third source of disparity, municipal overburden, is wholly independent of the other two problems; even if those problems were completely solved, that of municipal overburden would remain. The "incentive-equalization" formula was not designed to deal with the problem of municipal overburden. That some districts that suffer from municipal overburden also suffer from insufficient tax bases and high per-pupil costs and, so, benefit from increased use of the incentive equalization formula is pure happenstance.

In general large cities do not suffer from inadequate tax bases but do suffer badly from municipal overburden. Hence use of a district power equalizing formula ordinarily tends to cause these cities to lose state aid rather than gain it. This has been one of the principle defects of the use of that approach. Berge. supra 83, 104-5; Grubb Michelson, supra 564-66. That major New Jersey cities benefit from use of a power equalizing formula is a measure of the desperate condition of our cities, for it indicates that they suffer from low property values as well as municipal overburden. Jersey City (553), Paterson (560), Hoboken (562), Trenton (566), Newark (572) and Camden (575) all rank among the 30 lowest of the 578 operating school districts in equalized valuation per weighted pupil.

To measure with perfect accuracy the impact of municipal overburden on the ability of urban areas to provide resources for education is an admittedly formidable task, cf. Bateman Report, supra at 55 (urging further study), but there are a number of simple ways of adequately approximating it. The "incentive-equalization" formula can be adjusted to compensate in a rough way for municipal overburden without great difficulty. The failure of the Court to attempt to do so simply buries the cities of New Jersey a little deeper in social and financial difficulties.

Usable measures of the relative degree of municipal overburden include (1) the ratio of local revenues per capita used for non-school expenses to the statewide average of local revenues per capita used for non-school expenditures, Grubb Michelson, supra at 565 n. 39; (2) the ratio of the percentage of local revenues used for school purposes to the statewide average percentage of local revenues used for school purposes, id.; and (3) ratio of the local non-school tax rate to the statewide average local non-school tax rate. See Bateman Report, supra at 97.

With suitable restrictions and adjustments any of the measures described in the previous footnote can be used to modify the value for the local property tax base used in the "incentive-equalization" formula so as to reflect the fact that in some districts much of the ostensible property tax base is unavailable for education purposes because of disproportionate non-educational demands upon it. In other words, rather than the formula providing that the State will grant aid equal to that which would be raised by applying the local tax rate to the difference between the guaranteed valuation and the local property tax base, the formula would provide that the State would grant aid equal to that which would be raised by applying the local tax rate to the difference between the guaranteed valuation and a figure more truly representative of the portion of the local property tax base which is actually available for educational purposes.
Thus, for example, the equalized valuation might be replaced in the "incentive-equalization" formula by the equalized valuation multiplied by the ratio of the percentage of local revenues used for school purposes to the statewide average percentage of local revenues used for school purposes (a measure of relative municipal overburden). See, e.g., Bateman Report, supra at 97-98; Grubb Michelson, supra at 562-63; Mich. Comp. Laws Ann. § 388.1279 et seq. discussed in Grubb, "The First Round of Legislative Reforms in the Post-Serrano World," 38 Law Contemp. Prob. 459, 484 (1974).

IV.

I regret that I am unable to concur more fully in the majority opinion. This case, born in controversy and reared in criticism, is one of rare importance for the people of New Jersey. It would be better if we could speak with a single voice. The relief ordered by the Court is a step forward and is welcome evidence of proper judicial commitment to ultimate implementation of the education clause, but it is only a very small step and not nearly adequate to the circumstances. It does incomplete justice at best.

It is the State's obligation to rectify any breach of the education clause. "If local government fails, the State government must compel it to act, and if the local government cannot carry the burden, the State must itself meet its continuing obligation." Robinson v. Cahill, I, 62 N.J. at 513.

That obligation is not met by unsuccessful efforts by the legislative and executive branches to devise a plan to achieve the results demanded by the Constitution, however arduous and bona fide those efforts may have been. To the children of New Jersey it matters not at all whether the State's failure to provide the educational opportunities guaranteed by the Constitution is the consequence of a deliberate policy of intransigence or merely the by-product of deadlock within the coordinate branches of government.

It has been suggested that the Legislature cannot reasonably be expected to act while the present depressed economic conditions continue. The dimensions of constitutional rights and duties, however, do not fluctuate with the rise and fall of the stock market; nor are those obligations of the State contingent upon the passing political expediency of raising revenues to comply. Economic claustrophobia cannot be permitted to overcome constitutional mandates. Obedience by the State to its organic charter is a perpetual duty — not one to be deferred to some more propitious future date. Government must observe the law scrupulously. It cannot be a law-breaker.

This Court may not put its imprimatur on the consequences of the existing stalemate within the Executive and Legislature. We, too, are bound by the mandates of the Constitution. It would undoubtedly be more convenient to endure constitutional violations than to take the grave steps necessary to prevent or correct them. But if we long permit the guaranteed rights of the children of this State to be negated by governmental inaction, then we have failed to live up to our own constitutional obligations.

The Court has the power to go even farther in ordering relief than I have urged in this opinion. It has the inherent power to completely remedy the profound constitutional wrongs identified in Robinson I, supra. Delays, which are greeted with sighs of relief, are no substitute for action. We should not fear unpopularity. Any further delay or inaction is not to be tolerated. It is no longer enough for this court to make ripples. To vindicate the rights guaranteed by the education clause we must make great breakers, and, if need be, tidal waves.

Despite the order the Court issues today, hundreds of thousands more children will be obliged to pass through inadequate school systems in this State without receiving the quality education to which they are entitled. I cannot concur in such a result.

MOUNTAIN and CLIFFORD, JJ. (dissenting).

Today's decision marks the Court's entrance into the business of financing public education. There seems to be at least tacit agreement among us all that by reason of both constitutional law and the complexities of the subject matter, the judiciary is conspicuously unsuited for shouldering the burdens of that business, more appropriately left to the Legislature as unmistakably provided by the 1875 amendment to the 1844 Constitution, Article IV, § VII, ¶ 6, carried over to the 1947 Constitution in Article VIII, § IV, ¶ 1. Since the most meticulous search of our Constitution fails to disclose any textual warrant for the unprecedented step taken by the majority, justification for this acknowledged judicial encroachment on the legislative preserve must be sought elsewhere. And so the majority discovers "a legislative transgression of a `right guaranteed to a citizen,'" ante at 147, in turn evoking a judicial "response to a constitutional mandate," ante at 154 presumably the "mandate" of Article VIII, § IV, ¶ 1 referred to above, directed solely to the legislative branch, since no other mandate is or possibly could be identified. By such diaphanous thread hangs the justification — indeed, the asserted necessity — for the Court's action.

Because we find ourselves in substantial accord with many of the majority's views, and because we recognize the desirability of as much unanimity as may be mustered in support of so significant a decision as today's, it is with some reluctance that we register our dissent. Few cases receive the exhaustive treatment, both by way of opportunity afforded any interested party to present his views and by way of frequent exchange of ideas among members of the Court, as has been accorded this one. The opinions of our colleagues are entitled to and do receive our profound respect. But so firm is our conviction concerning the proper scope of the judicial function at this juncture that we feel obliged to express our disagreement with the remedy here invoked. That disagreement focuses on the majority's conclusion that school aid funds appropriated or to be appropriated by the Legislature should be reapportioned by this Court in a manner which will allegedly attain a closer approximation of the kind of funding believed to be required to support "a thorough and efficient" education. We think the Court should rather stay its hand.

Initially it should be emphasized that in wrestling with this difficult problem it is of the utmost importance to bear in mind that as of this moment no one has defined what is meant by "a thorough and efficient" education. As the majority correctly points out, it is not the function of this Court to establish the components of a thorough and efficient education. It is rather its duty to "appraise [the] compliance" of an educational system presented for judicial review as to constitutional sufficiency. We note with approval, as does the majority, that the State Commissioner of Education has prepared and published rules and regulations looking to this end. 7 N.J. Reg. 132 (April 1975). We are likewise aware that in each house of the Legislature bills have been introduced bearing directly upon the same subject matter.

In our view there has clearly been delegated to the Commissioner of Education the power, as there has also been allocated to him the responsibility, to take whatever steps may be necessary to define the meaning of the constitutional term "thorough and efficient," to lay down guidelines for the implementation of a program that will give it reality, and to see to it that the school districts of the State actually meet these requirements. Bd. of Educ. of Twp. of E. Brunswick v. Twp. Council of E. Brunswick, 48 N.J. 94 (1966); Bd. of Educ. of Elizabeth v. City Council of Elizabeth, 55 N.J. 501 (1970); Jenkins v. Twp. of Morris School Dist., 58 N.J. 483 (1971). A clear if unstated effect of our earlier opinion in this case, Robinson v. Cahill, 62 N.J. 473 (1973), was to lay upon the Commissioner an immediate obligation to formulate rules designed to make precise the nature of the constitutional mandate and to provide for its implementation.

While we think it clear that as the law now stands the Commissioner of Education has both the power and the obligation to define what is meant by "a thorough and efficient" education and to see that our public school system meets prescribed standards, we are very conscious that in exercising such functions he is acting more or less as an agent of the Legislature. The latter is at any time completely at liberty to change or revoke his powers or to supersede them by the passage of legislation immediately directed to the issue. Some of the bills that have been introduced seem to have a close textual correlation with the Commissioner's proposed rules, suggesting that there is here a commendable cooperative effort being made by the two political branches of government.

Thus far we are in general agreement with the majority. When, however, it comes to the proposed reallocation of appropriated funds, as we have said, we take a different view. The problem rests in the concept commonly referred to as the doctrine of the separation of powers. It finds explicit expression in the New Jersey Constitution:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [ Art. III, ¶ 1.]

The doctrine has not enjoyed a consistent development; it has been praised and it has been criticized. The uneven history of the concept may be noted but need not detain us here. The Supreme Court of the United States once said that all powers of government are divided into the executive, the legislative, and the judicial; and that it is "essential to the successful working of this system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other." Kilbourn v. Thompson, 103 U.S. 168, 191, 26 L.Ed. 377, 387 (1881). Professor Kenneth Culp Davis believes that probably no more extreme statement of the theory of separation of powers can be found in Supreme Court opinions. 1 Davis, Administrative Law Treatise, § 1.09, at 64 (1958). Some years later, although in dissent, Justice Holmes suggested a somewhat different and rather more modern view:

It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. [ Springer v. Government of Philippine Islands, 277 U.S. 189, 211, 48 S.Ct. 480, 485, 72 L.Ed. 845, 853 (1928).]

The most significant challenge to the doctrine of the separation of powers came with the birth and lusty growth of administrative law. The story has been often told and needs no repeating. In modern times Congress and state legislatures have created regulatory agencies that have quite generally possessed legislative, judicial and executive powers. Thirty or forty years ago administrative agencies were attacked as being flagrant examples of a violation of the doctrine of the separation of powers, but the positive needs of government supported by flexible constitutional interpretation won the day. Landis, The Administrative Process 1-5 (1938); 1 Davis, supra, § 1.09; 1 Cooper, State Administrative Law 15 et seq. (1965).

Clearly today the doctrine of the separation of powers cannot be said to require a complete compartmentalization along triadic lines. More and more courts have come to recognize that where a practical necessity exists, a blending of powers will be countenanced, but only so long as checks and balances are present to guard against abuses. This was the view adopted by this Court in Mulhearn v. Federal Shipbuilding Dry Dock Co., 2 N.J. 356, 362-65 (1949).

In the course of his opinion for the Court, Chief Justice Vanderbilt had this to say:

The doctrine [separation of powers] * * * has not only been accepted as a cardinal principle of American constitutional law but has been relied upon from our earliest days as a nation as a fundamental and indispensable bulwark against despotism. * * * Lord Acton's aphorism merits quotation at this point: "Power tends to corrupt and absolute power corrupts absolutely." Acton: Essays on Freedom and Power (1948). The doctrine of the separation of powers is the great contribution of Anglo-American lawyers to the prevention of absolutism and the preservation of the rights of the individual against the state. [ 2 N.J. at 363-64.]

As this Court more recently observed:

The doctrine of separation of powers must * * * be viewed not as an end in itself, but as a general principle intended to be applied so as to maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch. [ David v. Vesta Co., 45 N.J. 301, 326 (1965) (emphasis in original).]

Professor Davis is also of the view that

* * * the true principle that should guide the allocation of power within the general framework is not the principle of separation of the three kinds of power but is the principle of check.

The danger is not blended power. The danger is unchecked power. [1 Davis, supra § 1.09, at 68.]

Two examples may help to illustrate the point we make. It would probably be generally conceded that when the Legislature bestows judicial and executive powers upon an agency of its creation, there is a departure from the doctrine of the separation of powers, at least as seen in its most simplistic and restricted sense. So too, when judges make law in the process of deciding cases, it can properly be said that they are indulging in legislation and that this is theoretically repugnant to the doctrine of the separation of powers. Each of these practices, however, is now completely accepted and has indeed become commonplace. Significantly, however, in each of these instances the power being exerted by the branch of government to which that power is not intrinsically inherent is not unchecked. In the first example given, it will be noted that the various powers bestowed upon a judicial agency are all subject to judicial review. In the second example the judicial legislation undertaken by a court in the exercise of its adjudicatory function is immediately subject to the will of the legislature. The latter has the last word; by appropriate legislation the rule of law laid down by the court can be at once changed or annulled.

But what of the power that we are considering here? We assume it would not be disputed that the power of appropriating public funds is commonly understood to be a legislative function. If the Court undertakes to reallocate funds the ultimate disposition of which has been fixed by the Legislature pursuant to the exercise of its acknowledged power of appropriation, how is this new-found power of the Court to be controlled? How can it be checked? We discern no way that this can be done. The power to appropriate is singularly and peculiarly the province of the Legislature. It is commonly thought of as an adjunct to the taxing power. If the courts are at liberty, for whatever reason, to reallocate appropriated funds in some particular case, why may not the courts do so in other cases as well? Who is to stay the judicial hand and what law is to guide its exercise? There are no discernible boundaries or limits beyond which the power might not be exerted provided only that the Court were made to feel that the exigency of the moment was sufficiently serious to justify the action. It seems to us that the exercise of such a power by the courts is indeed unchecked, and that it cannot be said to fall within any relaxation of the doctrine of the separation of powers that has thus far been countenanced. See generally Gibbons, "The Interdependence of Legitimacy: An Introduction to the Meaning of Separation of Powers," 5 Seton Hall L. Rev. 435 (1974); Wright, "The Role of the Supreme Court In A Democratic Society — Judicial Activism or Restraint?," 54 Cornell L. Rev. 1 (1968).

Quite apart from these compelling doctrinal considerations which work against the majority's remedy, we would point out that the federal decisions relied upon to support the existence (much less the exercise) of the judicial power to redistribute and de facto appropriate funds, ante at 152, are not in point. The separation of powers is an intra-governmental concept, not an inter-governmental one. It refers to the allocation of power within a particular sovereignty or government, whether state or federal. Cf. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 681-82 (1962). But the federal cases cited in the majority opinion all concern evaluations of the deeds or practices of another governmental entity not on the same level with the federal judiciary, i.e., a state or subdivision thereof. In not one case cited by the majority did affirmative conduct or idleness of a co-ordinate, co-equal branch confront the federal courts. The restraint normally imposed on the exercise of judicial power by the separation of powers doctrine is thus lacking in those instances. The sole decision mentioned by the majority involving this Court and a co-ordinate branch of government, Jackman v. Bodine, 43 N.J. 453 (1964), simply reiterates the "one-man, one-vote" principle etched into the law by the Supreme Court in Baker v. Carr, supra, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Measuring the consistency of state activity against the command of the federal Constitution does not raise the spectre of the separation of powers. Nor were what Mr. Justice Stewart has characterized as the "intractable economic, social, and even philosophical problems" of a remedy, Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.2d 491, 503 (1970), so intense in Jackman as the problems generated by this Court's act of reallocating funds in the case at bar. And if the cited authorities represent what the majority characterizes as "emerging modern concepts as to judicial responsibility to enforce constitutional right," ante at 152, we suggest those concepts should for now be permitted to remain in their "emerging" stage rather than receive further nourishment from imprudent and untimely judicial activism.

The Court's reliance on Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C. 1972), is misplaced. In Mills the District Court found a violation of equal protection in the school district's failure to provide an education for mentally handicapped children. The Board of Education asserted that no funds had been appropriated by Congress for that purpose. We suggest that the court was not persuaded by that contention because it was obvious that Congress intended no such restricted use of the appropriated funds and the Board was simply misinterpreting the appropriation law. However, even assuming the majority's interpretation of Mills is correct, we take notice of the fact the defendants there were not the executive and legislative branches of the federal government, but rather the Board of Education and the Commissioner of the District of Columbia. And they were directed merely to redistribute the funds made available to them.

Moreover, as the majority opinion points out, there is a second provision of the New Jersey Constitution which is also applicable. Article VIII, § II, ¶ 2, in pertinent part reads as follows:

No money shall be drawn from the State treasury but for appropriations made by law. All moneys for the support of the State government and for all other State purposes as far as can be ascertained or reasonably foreseen, shall be provided for in one general appropriation law covering one and the same fiscal year; * * *.

Again, we face a specific and explicit constitutional prohibition standing in the way of the action sought to be undertaken.

We recognize that it is difficult to deal in terms of constitutional absolutes. Constitutional interpretation is a delicate, sensitive and flexible process. Yet we cannot at the present time foresee a state of affairs or set of circumstances which would justify this proposed encroachment upon the prerogative of another branch of government.

Other reasons as well suggest that the Court should exercise self-restraint. Since this Court's decision several years ago there has been no lack of energetic and thoughtful attention given to the problem we are considering. It has been the almost constant concern and preoccupation of the Legislature and of the Commissioner of Education. While these considerable efforts have thus far been unsuccessful, we should nevertheless await their fruition. At the very least the step here contemplated should not be taken before anyone yet knows what is meant by "a thorough and efficient" education. The elusive concept has many ingredients of which fiscal considerations are but one. No one knows today which school districts in the State may or may not be fully meeting their constitutional obligations. This point is made clear in the thoughtful and penetrating editorial entitled "Courts Cannot Encroach upon the Powers Belonging to the Executive or Legislative Branches of Government" appearing in the New Jersey Law Journal on April 24, 1975. ( 98 N.J.L.J. 356.) Surely, all constitutional restraints aside, as to any particular school district, there should first be a determination of legitimate fiscal insufficiency before supplying a judicially granted increase in state aid beyond the amount set by the Legislature, just as there should be a finding of overabundance of funds before invoking a judicially-mandated decrease.

Finally, we acknowledge that our position of restraint may very well be at odds with what may be seen as the most expeditious and efficient method of achieving final resolution of this troublesome case: exercise of the Court's presumed power itself to undertake, as the majority does today, the necessary financing. But restraint derived from a perceived limitation on the judicial power at this moment does maintain some semblance of a working balance between our three branches of government. Mr. Justice Brandeis once observed:

The doctrine of the separation of powers was adopted * * * not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. [ Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160, 242-43 (1926) (dissenting opinion).]

This doctrine deserves more than the ceremonial bow given it by the majority en route to its discovery of the requisite authority to act. This power it draws not from the Constitution but from a conviction that since it must act, it must therefore also have the power to act. The present circumstances do not yet compel us to find that we must, out of sheer necessity, have that power. While ours is an imperfect resolution, it better preserves for the future the integrity of the institutions of this government.

For the order — Chief Justice HUGHES, Justices SULLIVAN, PASHMAN and SCHREIBER and Judge CONFORD — 5.

Against the order — Justices MOUNTAIN and CLIFFORD — 2.