In a final decision issued January 13, Commissioner David Hespe affirmed that the NJ Department of Education (NJDOE) violated state facilities law and regulations by failing to ensure the timely submission and approval of updated long range facilities plans (LRFPs) for 31 poor urban districts, known as SDA districts. In so doing, the Commissioner adopted the October 2014 finding of Administrative Law Judge Ellen Bass of “unequivocal” non-compliance by NJDOE.
Represented by the New York City law firm, White & Case, Education Law Center sued NJDOE to address seriously out-of-date LRFPs that hamper the progress of the State’s school construction program to replace and repair dilapidated, dangerous and overcrowded schools in SDA districts.
Under orders issued by the NJ Supreme Court in the landmark Abbott v. Burke case, the state Educational Facilities Financing and Construction Act (EFCFA), and the NJDOE’s own regulations, the NJDOE must make certain that the LRFPs of the 31 SDA districts are updated at least every five years to reflect changing conditions.
Updated LRFPs, with current enrollment data, building capacities and utilization, and health and safety conditions, are the linchpin for making decisions related to the repair, construction, renovation and closing of existing public schools. These updates inform NJDOE’s assessment of statewide needs and the setting of educational priority rankings for all school facilities projects in SDA districts. In turn, NJDOE’s statewide assessments and project priority rankings must be used by the SDA, the state’s construction agency, to establish a “statewide strategic plan” for the construction of new schools.
The Commissioner modified the relief ordered by Judge Bass in her Initial Decision by extending the time for the filing of completed LRFPs from 60 days to 90 days, directing the SDA districts “to file an up-to-date LRFP within 90 days from the date of the final decision.” The Commissioner then directed NJDOE’s Office of School Facilities to review and approve those LRFPs consistent with statutory timeframes, and also to undertake the updating of Needs Assessments in accordance with EFCFA following the LRFP approvals.
“Students in SDA districts have the constitutional right to attend school in buildings that are safe and educationally adequate,” said ELC senior attorney Elizabeth Athos. “While we’re pleased that the Commissioner has ordered relief, we shouldn’t have to litigate over issues like these, and we urge State officials to implement this decision with renewed urgency.”
The White & Case pro bono team was lead by partner Gregory Little and associates Marika Lyons, Joshua Elmore and Edward Thrasher.
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