In a decision issued October 17, Administrative Law Judge Ellen Bass ruled the NJ Department of Education (NJDOE) violated state facilities law and regulations by failing to require New Jersey’s urban districts to revise their long out-of-date school facilities construction plans.
“We are very pleased that Judge Bass has stepped in to enforce the right of students in our poorest districts to be educated in schools that are safe, not overcrowded and educationally adequate,” said Education Law Center Senior Attorney Elizabeth Athos. “It is disturbing, however, that we had to go to court in the first place to force the Commissioner of Education and NJDOE to perform one of their most basic constitutional and statutory obligations to these vulnerable school children.”
Under the state Educational Facilities Financing and Construction Act (EFCFA), the NJDOE’s own rules, and the Abbott v. Burke school construction orders, the NJDOE is mandated to have facilities plans of 31 urban districts – known as “SDA districts” – updated and made current every five years. Under the law and the Abbott rulings, the Commissioner is then required to revise the priorities for school construction projects in these districts and give the new priority rankings to the Schools Development Authority (SDA). The Commissioner’s priority rankings must be used by the SDA to set a schedule for financing and construction of projects in the SDA districts.
Most of the SDA districts last completed their “Long Range Facilities Plans” (LRFP) in 2007-08. After repeatedly asking the Commissioner and NJDOE to have the district update their plans in 2012-13, ELC, with pro bono assistance from the New York law firm of White and Case, filed suit against the NJDOE Office of School Facilities.
Since the case was filed, the NJDOE has completed updates of LRFPs for three districts, bringing the total of LRFPs approved within the last five years to eight. Judge Bass found that the plans had not been updated for the remaining districts, concluding that the NJDOE’s non-compliance with the EFCFA “is unequivocal.”
Judge Bass cited the NJ Supreme Court’s directive to the Commissioner to have district facilities plans updated every five years to ensure timely and effective implementation of school facilities improvements in overcrowded, outmoded and dilapidated urban schools. While Judge Bass found the Commissioner’s assertion that the NJDOE keeps up with the priority for facilities projects “somewhat reassuring,” she concluded this was no substitute for meeting the State’s obligation to have up-to-date facilities plans determine which urban schools will be repaired, renovated or replaced.
Judge Bass ordered the NJDOE to: 1) have all outstanding facilities plans filed by the respective districts within 60 days, and 2) for the NJDOE to review and give final approval for the plans within 90 days of their receipt.
Judge Bass also ordered the NJDOE to develop a new statewide needs assessment and project priority rankings within 60 days of approval of the facilities plans and to then transmit those project priorities to the SDA 30 days thereafter.
The White and Case pro bono legal team was led by partner Gregory Little and associate Marika Lyons, along with associates Joshua Elmore and Edward Thrasher.
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