BACON, ET AL., Plaintiffs/Petitioners, v. NEW JERSEY DEPARTMENT OF EDUCATION Defendant/Respondent.

SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY DOCKET NO. l-1989-14

CIVIL ACTION

PLAINTIFFS’/PETITIONERS’ BRIEF IN OPPOSITION TO DEFENDANT’S/RESPONDENT’S MOTION TO DISMISS

On the brief: David Sciarra, Esq. Theresa S. Luhm, Esq.

EDUCATION LAW CENTER DAVID G. SCIARRA, ESQ. 60 Park Place, Suite 300 Newark, NJ 07102 (973) 624-1815 dsciarra@edlawcenter.org JACOB & CHIARELLO, LLC FRED JACOB, ESQ 600 West Main Street PO Box 429 Millville, NJ 08332 (856) 825-0700 fredj@sjtrialfirm.com Attorneys for Plaintiffs/Petitioners

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TABLE OF CONTENTS

TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT...........................................1 PROCEDURAL HISTORY..............................................2 STATEMENT OF FACTS..............................................4 ARGUMENT

THE STATE’S MOTION TO DISMISS SHOULD BE DENIED BECAUSE THE COMMISSIONER’S 2009 NEEDS ASSESSMENTS DETERMINED THE SFRA PROVIDES ADEQUATE FUNDING TO REMEDY THE VIOLATION OF THE BACON STUDENTS’ RIGHT TO A THOROUGH AND EFFICIENT EDUCATION ...............................................6

CONCLUSION.....................................................20

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TABLE OF AUTHORITIES

Cases Abbott v. Burke, 149 N.J. 145 (Abbott IV)...................... 7 Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V)............... 18 Abbott v. Burke, 163 N.J. 95 (2000) (Abbott VI)............... 18 Abbott v. Burke, 196 N.J. 544 (2008) (Abbott XIX)............. 17 Abbott v. Burke, 199 N.J. 140 (2009) (Abbott XX).......... 10, 12 Abbott v. Burke, 206 N.J. 332 (2011)(Abbott XXI).......... 14, 17 Bacon v. New Jersey State Dep't of Educ., 398 N.J. Super. 600 (App. Div. 2008)...................................... passim Robinson v. Cahill, 69 N.J. 133 (1975)........................ 18

Constitution and Statutes N.J. Const. art. VIII, §4, ¶1.................................. 6 N.J.S.A. 18A:7F-43 to 63....................................... 2 N.J.S.A. 18A:7G-1 et seq.................................. 13, 20 Court Rules R. 1:10-3 ................................................2, 16 R. 4:67-6 .................................................passim

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PRELIMINARY STATEMENT

The Appellate Division in Bacon v. New Jersey State Dep’t

of Educ., 398 N.J. Super. 600, 618 (App. Div. 2008)(“Bacon”),

remanded to the Commissioner of Education (“Commissioner” or

“State”) to determine whether the newly enacted School Funding

Reform Act (“SFRA”) remedies the proven education deficits found

by the State Board of Education (“State Board”) in the Plaintiff

“Bacon” districts. In 2009, the Commissioner issued needs

assessments, determining the funding under SFRA is adequate and

affords Plaintiff students a thorough and efficient education.

Regrettably, delivery of the Commissioner’s determined SFRA

remedy was short-lived. The State does not dispute that it

provided SFRA funding for two years, then, in 2010-11, cut those

funds. Since then, the State has not provided Bacon districts

with SFRA funds or preschool programs. The State has

effectively abandoned the SFRA remedy, leaving Bacon district

students to endure the severe educational deprivations found

unconstitutional by the State Board in 2006.

The State now claims the needs assessments were nothing

more than a theoretical exercise, beyond the jurisdiction of

this or any court. Yet the Commissioner’s determinations of

SFRA’s remedial funding relief are plain and specific. They are

also enforceable in this proceeding to effectuate, at long last,

Plaintiffs’ entitlement to a thorough and efficient education.

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PROCEDURAL HISTORY

Plaintiffs incorporate herein the procedural history of the

adjudication before the Office of Administrative Law (“OAL”) and

the Commissioner, and the State Board’s 2006 final ruling, as

set forth in Bacon, 398 N.J. Super. at 606-15.

In its March 14, 2008 decision, the Appellate Division

remanded to the Commissioner to perform needs assessments of the

rural Plaintiff districts (“Bacon districts”) to “determine”

whether the “remedial measures” in the SFRA, N.J.S.A. 18A:7F-43

to 63, “afford” Bacon district students the thorough and

efficient education “to which they are constitutionally

entitled.” Id. at 618.

On September 14, 2009, the Commissioner issued the needs

assessments as the agency’s final remedial determination. The

needs assessments determined that SFRA funding will address the

districts’ resource deficiencies and the constitutional

violation found by the State Board in its 2006 ruling.

On August 29, 2011, Plaintiffs filed a Motion in Aid of

Litigants Rights pursuant to R. 1:10 with the Appellate Division

seeking an order to restore the SFRA funding cut in 2010-11 by

enjoining the State from providing funding for 2011-12 at less

than the levels required by the SFRA formula.

In January 2012, the Appellate Division issued an order

denying Plaintiffs’ motion as beyond the purview of the Court’s

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March 2008 decision remanding to the Commissioner for a

determination of remedy. The Appellate Division held that “[t]o

the extent movants seek to enforce, or compel compliance with,

any aspect of the September 14, 2009 administrative agency

determinations,” namely the Commissioner’s needs assessments,

“their recourse is by way of summary proceeding pursuant to Rule

4:67-6.” Bacon v. New Jersey State Dep’t. of Educ., M-000267-11,

Order (Jan. 13, 2012).

On September 8, 2014, Plaintiffs filed a Verified Complaint

and Order to Show Cause under R. 4:67-6 seeking to enforce the

September 14, 2009 final agency determinations by directing the

State to take appropriate steps to seek and secure SFRA funding

for the Bacon districts from the Legislature.

On November 7, 2014, the State filed a Motion to Dismiss

Plaintiffs’ Complaint, with Defendant’s/Respondent’s Brief in

Support of Motion to Dismiss (“State’s Brief”). Plaintiffs file

the within Brief in Opposition to the State’s Motion to Dismiss.

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STATEMENT OF FACTS

Plaintiffs incorporate herein the facts and conclusions in

the State Board’s 2006 ruling related to the deprivation of a

constitutionally adequate education in the Bacon districts, and

the facts related to the adoption of SFRA in 2008, as set forth

in the Appellate Division’s decision. Bacon, supra.

Plaintiffs also incorporate the facts in the Commissioner’s

September 2009 needs assessments of the Bacon districts.1

Following enactment of the SFRA, the State provided the

Bacon districts with SFRA funding increases in 2008-09 and 2009-

10 required by the SFRA formula. In 2010-11, however, the State

cut that funding, effectively eliminating the increases provided

in the first two years of the SFRA’s operation. Plaintiffs’

Complaint ¶19.

The State did not provide the Bacon districts the funding

increases required by the SFRA formula in 2011-12, 2012-13 or

2013-14. The State has also failed to restore the 2010-11

funding cut. Plaintiffs’ Complaint, ¶22.

In 2014-15, for the fourth straight year, the State did not

provide the Bacon districts the funding increases required by

the SFRA formula. In the current school year, the Bacon

1 The Plaintiff districts serve a total enrollment of 19,278 K-12 students of which 59.4% are low-income (“at-risk”). See http://www.state.nj.us/education/data/enr/

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districts are, in the aggregate, underfunded by $18.4 million in

K-12 SFRA funding. Plaintiffs’ Complaint, ¶23.

The State has not provided any of the funding necessary to

phase-in, from 2009-10 to 2013-14, high quality preschool

programs in the Bacon districts, as mandated by the SFRA. An

estimated 1900 three- and four-year olds in the districts have

been deprived access to early education as a result of the

State’s failure to implement the SFRA’s preschool provisions.

Plaintiffs’ Complaint, ¶24.

The State has repeatedly failed, over the course of the

last four years, to provide the SFRA funding, preschool and

other remedial measures determined in the Commissioner’s 2009

needs assessments as adequate to meet the needs of students in

Bacon districts and as necessary to remedy the constitutional

violation of a thorough and efficient education found by the

State Board in its 2006 ruling. Plaintiffs’ Complaint, ¶25.

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ARGUMENT

POINT ONE

THE STATE’S MOTION TO DISMISS SHOULD BE DENIED BECAUSE THE COMMISSIONER’S 2009 NEEDS ASSESSMENTS DETERMINED THE SFRA PROVIDES ADEQUATE FUNDING TO REMEDY THE VIOLATION OF THE BACON STUDENTS’ RIGHT TO A THOROUGH AND EFFICIENT EDUCATION

The State asserts that Plaintiffs’ Complaint for summary

enforcement under R. 4:67-6 should be dismissed because the

Commissioner’s September 2009 needs assessments of the Bacon

districts did not “encompass or contemplate” the provision of

funding under the SFRA formula. State’s Brief at 10, 17. As

explained below, the needs assessments specifically determined

that the SFRA formula provides adequate funding to meet the

needs of students in the rural Bacon districts for a thorough

and efficient education and, consequently, can be enforced in

this proceeding to remedy the underlying constitutional

violation found by the State Board. The State’s motion to

dismiss, therefore, should be denied.

First, Plaintiffs’ Complaint under R. 4:67-6 seeks to

enforce a remedy for a violation of the Bacon district students’

right to a thorough and efficient education under the Education

Clause of the New Jersey Constitution, N.J. Const. art. VIII,

§4, ¶1, as found by the State Board in its 2006 ruling. Based

on an extensive evidentiary record developed before the OAL, the

State Board concluded that “the educational opportunity in the

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Bacon districts is inadequate” and that the Comprehensive

Education Improvement and Financing Act (“CEIFA”) funding

formula, “as implemented, has failed to insure the students in

the Bacon districts a thorough and efficient education.” Bacon,

398 N.J. Super. at 609-11(describing the State Board’s findings,

conclusions and remedial directives). Further, the

constitutional deprivation proven by Plaintiffs and found by the

State Board was “unchallenged” before the Appellate Division.

Id. at 615. The State wholly ignores the State Board’s ruling

of inadequate funding and unconstitutional education in the

Bacon districts, the final agency determination on the merits

which is the basis for this R. 4:67-6 enforcement proceeding.

Second, the State’s Brief also ignores the Appellate

Division’s finding that, with enactment of the SFRA in 2008, the

Legislature replaced the prior CEIFA formula declared

unconstitutional as applied to the Bacon districts by the State

Board. Bacon, 398 N.J. Super. at 613. The SFRA not only

responded to the Supreme Court’s remedial mandates for students

in poorer urban districts in Abbott v. Burke, 149 N.J. 145, 202

(“Abbott IV”), but also to the State Board’s directive for

“systemic change” to address the severe deprivation of resources

for students in rural Bacon districts. Bacon, 398 N.J. Super. at

611. As the Appellate Division found, the SFRA requires the

Department of Education to “calculate how much it costs” to

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provide a thorough and efficient education for students in all

districts, including those in Bacon districts, with the “number

of low income students” constituting “a major factor.” Id. at

613-15(describing the components of SFRA’s funding formula).

The Court concluded that the SFRA offers a legislatively

fashioned, not judicially imposed, “alternative remedy” that

embodies “comprehensive and systemic relief as well as a more

specific approach to the litigants in this matter.” Id. at 617.

The Appellate Division also concluded that, because SFRA

had just become law, it “remains to be seen” whether the formula

“delivers” on the “promise” of remediating the constitutional

violation in the Bacon districts. Bacon 398 N.J. Super. at 617.

The Court accepted, as a “first step,” the State Board’s

directive that the Commissioner perform “needs assessments” to

“identify the particular educational needs of the Bacon

districts.” Id. at 617-18. The Court also made clear that the

State Board’s “two approaches” to devise a remedy for the Bacon

districts – “systemic, overall change” and a “particularized

needs assessment” – were “complimentary,” given that SFRA

“emphasizes the characteristics of the student population and

the individual district’s ability to pay.” Id. at 618. Thus,

the SFRA is a “comprehensive reform that stresses educational

funding that is student-based, not geographically directed,”

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Id., offering a remedy that could meet the needs of Bacon

district students.

Third, in light of SFRA’s enactment, the Appellate Division

remanded to the Commissioner for the express purpose of

assessing the SFRA’s potential “remedial impact” on each of the

Bacon districts. Bacon, 398 N.J. Super. at 618. The Court made

clear the needs assessments were no longer necessary to inform a

systemic replacement of the CEIFA formula; that reform was

accomplished through the SFRA. Bacon, 398 N.J. Super. at 613.

The Commissioner was explicitly directed to “further determine”

whether the just-enacted SFRA fulfills its “promise” of

providing adequate funding to meet the needs of Bacon district

students, thus remediating the constitutional violation found by

the State Board. As the Court concludes:

Indeed, it would appear that a needs assessment of the Bacon districts is necessary to determine whether those needs identified by the Department will be met by the [SFRA’s] new funding formula. Consequently, we direct the Commissioner to comply with the Board’s final decision and proceed forthwith to design and perform a needs assessment of each of the Bacon districts, to be completed within six months, and based thereon, to further determine whether, in light of the proved educational deficits already found by the Board, the [SFRA’s] remedial measures afford students in the Bacon districts the thorough and efficient education to which they are constitutionally entitled.

Id. at 618(emphasis added). The State’s Brief does not address

the Appellate Division’s explicit remand to the Commissioner.

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Instead, the State tries to sidestep the Court’s directive by

mischaracterizing the needs assessments as an open-ended

“mission” that examined “a panoply of issues and challenges” in

the districts. State’s Brief at 15. The Court, however, made

clear the needs assessments were required to “further

determine,” in the wake of SFRA’s enactment, whether the formula

provides the resources needed by the Bacon districts and

“afford[s] students the thorough and efficient education to

which they are constitutionally entitled.” Id. at 618-19.

Fourth, on their face, the Commissioner’s September 2009

needs assessments determined the SFRA provides adequate funding

to meet the specific needs of students in the Bacon districts.

As the Commissioner was conducting the assessments, the Supreme

Court upheld the constitutionality of SFRA as providing adequate

funding for all students to achieve the State’s Core Curriculum

Content Standards (“CCCS”), the substantive measure of a

thorough and efficient education. Abbott v. Burke, 199 N.J. 140,

146 (2009)(“Abbott XX”).2 The SFRA formula was also already in

its second year of implementation. As a result, the

2 The Supreme Court emphasizes SFRA addresses the needs of low-income, at-risk students regardless of the district in which they are enrolled. Abbott XX, 199 N.J. at 172(finding SFRA “a fair and equitable means to fund the costs” of a constitutional education and the product of “considerable efforts” by the Legislature and Executive “to confront the difficult question of how to address the needs of at-risk pupils, no matter where those children attend school”).

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Commissioner assessed the “remedial impact” of the SFRA on the

Bacon districts not on an anticipatory basis but by examining

the funding actually provided by the formula to the districts

through 2009-10. Bacon, 398 N.J. Super. at 618.

For each district, the Commissioner’s assessment sets forth

the amounts and categories of SFRA funding received in the 2008-

09 and 2009-10, and that will be provided in subsequent years,

based upon the formula’s cost calculations and district needs.

The Hammonton School District’s Needs Assessment exemplifies

these determinations of SFRA’s adequacy. The Commissioner

determined that the district “received a 20% ($2,127,052)

increase in State aid...in FY08-09” and “will receive a 5%

($634,248) increase in FY09-10;” has an adequacy budget that

“includes an additional weight of .504 for each at-risk [poor]

child, which amounted to a total of $3,010,456 in FY08-09 and

$2,997,019 in FY09-10;” had a local property tax levy that

exceeded its local fair share and was spending below its

adequacy budget; and “will continue to receive increases in

funding pursuant to the SFRA in future years.” The assessment

also determined that the SFRA “also provides” the Hammonton

district with “categorical security aid as well as

transportation and special education.” Further, the assessment

determined that SFRA “dramatically increases access to preschool

education” and that Hammonton “will be required” to offer full-

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day preschool to all eligible children within five years.

Hammonton District Needs Assessment, pages 7-8 (emphasis added).

All of the assessments also analyze the needs particular

to each district’s student population. In many of the

assessments, the Commissioner describes how SFRA is directly

responsive to those district-specific needs. In Hammonton,

district officials identified as top priorities the need for

full-day preschool and for outreach to parents of bilingual

students. The Commissioner then responds by stating that “the

special needs of at-risk and limited English Proficient students

were specifically addressed during the process of SFRA and,

therefore, are incorporated into the SFRA determination of

additional weights for such students in determining funding for

the district.” Hammonton District Needs Assessment page

4(emphasis added). Put plainly, the Commissioner clearly

determines that the SFRA formula provides funding to deliver the

resources required to address the districts’ specific needs.

The Commissioner’s SFRA funding determinations in the needs

assessments vary among the Bacon districts, as expected given

that SFRA “emphasizes the characteristics of the student

population and the district’s ability to pay.” Bacon, 398 N.J.

Super. at 618. They are consistent, however, for every district

in determining that SFRA, unlike its CEIFA predecessor, provides

adequate funding to deliver the staff, programs and resources

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essential for Bacon district students to achieve the CCCS. Id.

at 614; Abbott XX, 199 N.J. at 164(holding the CCCS, along with

the new formula “designed to tie realistic expenses to the cost

of delivering those educational standards,” satisfy

constitutional mandates). Thus, in the needs assessments, the

Commissioner “further determined” -- in compliance with the

Appellate Division’s remedial directives, Bacon, 398 N.J. Super.

at 618 -- that SFRA “provide[s] the tools” for Bacon districts

to meet the “educational deficiencies” and “identified needs” of

their students and “will permit” the districts to “improve

educational opportunities for its students.” See e.g., Needs

Assessment of Lawrence School District, page 8(emphasis added).3

The State’s Brief does not address the Commissioner’s

specific determination that SFRA provides adequate funding to

meet the needs of Bacon district students. As a distraction,

the State proffers selective excerpts related to “ineffective

fiscal and spending practices” to support its bald contention

that the provision of SFRA funding “was not encompassed within

the 2009 needs assessments.” State’s Brief at 17(citing

Lakewood, Hammonton and Buena assessments). The State is flatly

incorrect when it asserts the Commissioner did not “make any

3 The Commissioner also assessed the needs of each district for facilities improvements and determined that those needs will be addressed through the construction and financing provided through the Education Facilities Construction and Financing Act (“EFCFA”), N.J.S.A. 18A:7G-1 et seq.

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determination” that remedying the constitutional violation

“depended on continued funding” under the SFRA formula. Id.

This assertion is unfounded when the Commissioner’s specific

determinations of SFRA’s funding adequacy are viewed in their

entirety, and not wholly divorced from the State Board’s ruling

and the Appellate Division’s directive to evaluate SFRA’s

“remedial impact” on remand. Bacon, 398 N.J. Super. at 618. A

plain reading of the needs assessments -- in the context of the

remedy phase of this litigation -- leaves no doubt the

Commissioner determined that the SFRA funding delivered in 2008-

09 and 2009-10, and to be made available through year-to-year

formula implementation, “will provide the necessary resources”

for the Bacon districts “to continue to improve the educational

opportunities available” to their students.” See, e.g. Needs

Assessment of Clayton School District, page 10(emphasis added).

Fifth, the State does not dispute the facts in Plaintiffs’

Complaint that the State cut SFRA funding to Bacon districts in

2010-11, effectively eliminating the increases provided in 2008-

09 and 2009-10 and relied upon by the Commissioner in the needs

assessments. Plaintiffs’ Complaint, ¶19; Abbott v. Burke, 206

N.J. 332, 359 (2011)(“Abbott XXI”)(finding the State’s 2010-11

cut was a “conscious and calculated decision to underfund the

SFRA formula”). Nor does the State dispute Plaintiffs’ factual

contentions that it not only failed to restore those funding

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cuts, but also has not provided the requisite SFRA increases

since 2011-12, resulting in a cumulative funding shortfall in

the Bacon districts of $18.4 million in 2014-15. Plaintiffs’

Complaint, ¶23.4 The State also does not contest its failure to

provide SFRA funding for early education, leaving the districts

unable to phase-in preschool programs within the five-year SFRA

timeframe. Plaintiffs Complaint, ¶25(estimating 1900 three- and

four-year old children have been deprived of access to high

quality preschool). The uncontroverted record in this

proceeding is that the State, through a combination of funding

cuts in 2010-11 and the absence of the requisite increases since

2011-12, has utterly failed to deliver on SFRA’s “promise” of

“remedial measures” to “afford students in the Bacon districts a

thorough and efficient education” a full six years after SFRA’s

implementation. Bacon, 398 N.J. Super. at 617-18.

Sixth, the State suggests Plaintiffs’ only “recourse” to

secure a remedy for the constitutional violation found by the

State Board is to “appeal to the Appellate Division.” State’s

Brief at 17. Plaintiffs, however, previously sought relief from

that Court to enforce the remedial determinations in the needs

4 The State contends the Commissioner “found” the Bacon districts “had sufficient resources to provide a thorough and efficient education.” State’s Brief, at 17. Yet the State fails to acknowledge that the year after the needs assessments were completed, the State cut the funding provided in 2008-09 and 2009-10, returning the districts to their constitutionally deficient, pre-SFRA funding levels. Plaintiffs’ Complaint, ¶19.

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assessments, requesting restoration of State’s 2011 SFRA funding

cut. Plaintiffs’ Complaint, ¶20. Presiding Judge Anthony J.

Parrillo’s denial of the application recognized that the

Appellate Division’s prior 2009 decision remanded to the

Commissioner for a final agency determination on whether SFRA

remedied the constitutional violation in the Bacon districts.

Consequently, the Presiding Judge made clear that, to “enforce,

or compel compliance with, any aspect” of the final

administrative agency determinations in the 2009 needs

assessments, Plaintiffs’ ”recourse is by way of summary

proceeding pursuant to Rule 4:67-6.” Plaintiffs’ Complaint, ¶21,

Exhibit B; Bacon v. New Jersey State Dep’t. of Educ., M-000267-

11, Order(Jan. 12, 2012). Consistent with these instructions,

Plaintiffs have properly commenced this action to enforce the

Commissioner’s determination that SFRA funding is a remedy for

the profound constitutional deprivation that Bacon district

students were forced to endure prior to SFRA’s enactment, a

deprivation that continued when the State suddenly abandoned the

provision of SFRA funding in 2011.

Further, in Abbott XXI, the Supreme Court granted

enforcement relief to students in urban Abbott districts

pursuant to R. 1:10-3 when the State “failed to act consistent

with its representations concerning the manner it claimed it

would fulfill” the Court’s remedial mandates in that litigation.

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Id. at 359. Similarly, in this R. 4:67-6 proceeding, the Bacon

district students seek enforcement relief to address the State’s

failure to “act consistent with” the Commissioner’s

determinations in a final agency decision to provide SFRA

funding to fulfill the State’s Board and Appellate Division’s

remedial mandates in the Bacon litigation. Moreover, the

State’s repudiation of its “ongoing responsibilities and

obligations” to the Bacon district students arise from the same

“conscious and calculated decision” to cut SFRA funding in 2010-

11 that resulted in the Court’s relief for Abbott district

students. Abbott XXI, 206 N.J. at 359-60.

Finally, when reduced to its essence, the State’s position

is that Plaintiffs have no judicial recourse – either before

this Court or the Appellate Division -- to secure a remedy for

the State Board’s ruling of unconstitutional education in the

Bacon districts. State’s Brief at 17. This position ignores the

Presiding Judge’s directive that jurisdiction to enforce the

Commissioner’s final agency determinations in the needs

assessments properly lies in this Court through a R. 4:67-6

summary action. It also is inconsistent with the well-

established principle that the State bears the burden of

demonstrating it has remedied a proven violation of a thorough

and efficient education in a timely manner. Abbott v. Burke, 196

N.J. 544, 565-66 (2008)(“Abbott XIX”)(shifting burden to the

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State when advancing “a new funding program” it “assert[s] to be

compliant” with the Education Clause). At bottom, the State’s

attempt to bar altogether the Bacon district students from

seeking judicial redress for the violation of their right under

the Education Clause runs afoul of the bedrock principle that

the courts serve as “the designated last-resort guarantor of the

Constitution’s command” for a thorough and efficient education.

Robinson v. Cahill, 69 N.J. 133, 154 (1975)(“Robinson V”);

Abbott v. Burke, 153 N.J. 480, 527-28 (1998)(“Abbott

V”)(concluding that the interests of school children in

effectuating a thorough and efficient education “must remain

prominent, paramount and fully protected”).

In sum, the Appellate Division in this litigation

recognized the longstanding principle that “constitutional

violations” of a thorough and efficient education “must be

remedied in a timely fashion.” Bacon, 398 N.J. Super. at 618;

see also Robinson V, 69 N.J. at 147(holding that the court must

provide an appropriate remedy where the fundamental right to

education is at stake). Students in Bacon districts have waited

too long for a remedy. See Abbott v. Burke, 163 N.J. 95, 102

(2000)(“Abbott VI”)(directing the State to implement high

quality preschool so “another generation” of children will not

“pay the price for each year of delay”). To prevent yet another

year of delay, the State’s motion to dismiss should be denied

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and the relief sought in Plaintiffs’ Complaint promptly granted.

Bacon, 398 N.J. Super. at 618(describing the judicial branch’s

role of ensuring timely remediation of Education Clause

violations as the “very least our constitutional duty demands”).