In re Complaint filed by Springfield Board of Education (3-11).

PROCEDURAL HISTORY

Complaint filed.  On March 28, 2011, via email, a Complaint was filed by Vito A. Gagliardi, Jr., Esq., on behalf of Michael Davino, Superintendent, Springfield Board of Education, in which it is alleged that N.J.S.A. 18A:39-1, paragraphs II(1), II(2), and II(3), which governs a school district's obligation to provide transportation to students regarding Aid In Lieu of Transportation is an unfunded mandate.  A summary of the Springfield Board of Education's Complaint may be viewed under Pleading Summaries.

To view the full version of the Springfield Board of Education Complaint, please click here.

Council publication.  Because of the identity of the issue raised, the Council ordered that the complaint should be served on the Attorney General and the officials listed in Council Rule 9a.  The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.

By letter of April 8, 2011, the Complaint was circulated to the above-mentioned officials, and the letter also provides a schedule of due dates for filings of pleadings, including:

• Answer(s) directed to the Complaint (May 9, 2011).
• Respondent Motion(s) directed to the Complaint (May 23, 2011).
• Claimant response(s) to such Motions (June 20, 2011).
• Requests to Appear as Amicus Curiae (June 6, 2011).
• Objections to Requests to Appear as Amicus Curiae (June 13, 2011).

Respondent's Answer and Motion to Dismiss.  On May 9, 2011, an Answer and a Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Education, via UPS Next Day Air.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Answer and Motion to Dismiss, please click here.

Respondent's Notice of Motion for Summary Decision.  On May 24, 2011, a Notice of Motion for Summary Decision was filed on behalf of Respondent, State of New Jersey, Department of Education, via UPS Next Day Air.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Notice of Motion of Summary Decision, please click here.

Request to Appear as Amicus Curiae.  On June 6, 2011, a Request to Appear as Amici Curiae in this proceeding was filed by

• the Orthodox Union (Union of Orthodox Jewish Congregations of America).

A Summary of the filed request may be accessed by clicking on the name of the Requester.

Council approves amici request.  By e-mail dated June 7, 2011, the Council notified all parties that the Council approved the Request filed on behalf of Orthodox Union (Union of Orthodox Jewish Congregations of America), to Appear as Amici Curiae in this matter.

In the June 7 e-mail, the Council also advised that it would permit Respondent the opportunity to object to the request to appear of the Orthodox Union (Union of Orthodox Jewish Congregations of America), by no later than June 27, 2011.

Claimant's Letter Brief in Opposition to the Respondent's Motion for Summary Decision.  On June 21, 2011, a Letter Brief in Opposition to the Department of Education's Notice of Motion for Summary Decision was filed on behalf of Claimant, Springfield Board of Education, via email.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Claimant's Letter Brief in Opposition to the Respondent's Motion for Summary Decision, please click here.

Respondent's Request to file a brief in response to Claimant's Letter brief in Opposition to Respondent's Motion to Dismiss.  On June 23, 2011, a Letter was recieved from the Respondent requesting permission to file a brief in response to the Claimant's Opposition to Respondent's Motion to Dismiss.

To view the full version of the Respondent's Letter brief, please click here.

Claimant's response to Respondents June 23, 2011 letter requesting permission to file a response to the Board's Opposition to the DOE's Motion to Dismiss.  On June 29, 2011, a letter was sent from the Claimant requesting that the request by the Respondent be denied.

To view the full version of the Claimant's Letter Brief, please click here.

Council issues Notice of Hearing.  On July 8, 2011, via email, the Council informed all interested parties in their Notice of Hearing in the Springfield Board of Education Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  August 4, 2011, at 10:30 a.m.

Place of Hearing:  Committee Room 3, 1st floor, State House Annex, Trenton, NJ.

Purpose of Hearing:  To hear legal argument of Claimant Springfield Board of Education, and Respondent State of New Jersey Department of Education, regarding Motion to Dismiss and Opposition to Summary Decision.

Respondent's letter brief in lieu of a more formal Response to the Opposition and Cross Motion filed by Claimant in Response to the Motion to Dismiss filed by Respondent.  On July 14, 2011, a letter brief was recieved from the Respondent letter brief in lieu of a more formal response to the Opposition and Cross Motion filed by Claimant, Springfield Board of Education, in response to the Motion to Dismiss filed by Respondent, the New Jersey Department of Education.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's letter brief, please click here.

Claimants letter brief to address certain points made by respondent Department of Education in its July 14, 2011 response to the Board's opposition to the DOE's Motion to Dismiss.  On July 25, 2011, a letter brief was recieved to address certain points made by respondent Department of Education in its July 14, 2011 response to the Board's opposition to the DOE's Motion to Dismiss.

To view the full version of the Claimant's letter brief, please click here.

Council Reissues Notice of Hearing.  On July 27, 2011, via email, the Council informed all interested parties in their Revised Notice of Hearing in the Springfield Board of Education Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  August 4, 2011, at 10:30 a.m.

Place of Hearing:  Committee Room 9, 3rd floor, State House Annex, Trenton, NJ.

Purpose of Hearing:  To hear legal argument of Claimant Springfield Board of Education, and Respondent State of New Jersey Department of Education, regarding Motion to Dismiss and Opposition to Summary Decision.

Council issues a statement after hearing on August 4, 2011 and announces a evidentiary hearing date.  On August 8, 2011 via email, the Council informed all parties in this matter of the following:

Following oral argument on August 4, 2011, the Council voted unanimously to deny the State's Motion and Claimant's cross-motion.  An evidentiary hearing will be conducted on October 18, 2011.  Please supply your witness lists no later than seven (7) days prior to the hearing.

Council issues Notice of Hearing.  On August 31, 2011, via email, the Council informed all interested parties in their Notice of Hearing in the Springfield Board of Education Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  October 18, 2011, at 10:00 a.m.

Place of Hearing:  Committee Room 9, 3rd floor, State House Annex, Trenton, NJ.

Purpose of Hearing:  To conduct an evidentiary hearing with testimony from witnesses produced by the parties.

Respondent, State of NJ Department of Education, submits a Supplemental Brief.  On September 15, 2011, via email, DAG Daniel Dryzga submitted a supplemental brief on behalf of Respondent to address an additional jurisdictional issue that was not previously raised with the Council.

To view the full version of the Respondent's supplemental brief, please click here.

Claimant, Springfield BOE, submits email response in objection to the Respondent's Supplemental Brief.  On September 15, 2011, via email, the Claimant requested the right to respond to the respondents supplemental brief if the Council considered the State's argument.

"The Board is in reciept of the State's supplemental letter brief of today's date and strenuously objects to this extremely belated submission.  As the State knows, the Council denied its Motion to Dismiss in its entirety and set a hearing date of October 18.  Now, six weeks after oral argument on the Motion -- at which the Board, of course, had no opportunity to address this "jurisdictional" argument becasue the State did not timely raise it -- the State submits this additional issue after its Motion has already been considered and denied.  Under these circumstances, the Board respectfully urges that the Council not consider the State's supplemental brief and commence with the October 18 hearing.

Should the Council elect to consider the State's argument, the Board requests the right to respond to the same prior to any such consideration."

Council issues email granting Claimant, Springfield BOE permission to file a response to the supplemental brief submitted by the Respondent, Department of Education. On September 16, 2011, via email, the Council informed all interested parties of the following:

The Council has advised that the Springfield Board of Education, file a response to the supplemental brief supplied by the Respondent, State of NJ Department of Education on September 15, 2011.

You will have ten days to submit your response and it should be recieved by this office by fax or email no later than September 26, 2011.

Claimant, Springfield BOE submits their letter brief in opposition to the Respondent's untimely supplemental brief as well as a certification of service.  On September 22, 2011, via email, the Claimant submitted their letter brief in opposition to the Respondent's supplemental brief.

To view the full version of the Claimant's letter brief, please click here.

New Jersey Network of Catholic School Families files a letter request to appear as amicus curiae.  On October 5, 2011, via email, the Council recieved a letter request to appear as amicus curiae from Mary T. McElroy, Director, NJ Network of Catholic School Families.

To view the full version of the letter request, please click here.

Council sends email to all parties in regards to the letter request to appear as amicus curiae by the NJ Network of Catholic School Families.  On October 6, 2011, the Council sent a email to all parties informing them that after a discussion and a vote the Council would allow the request to appear.  In this email, the parties were informed that the NJ Network of Catholic School Families would submit a letter brief to all parties by no later than October 13, 2011.

Claimant's response to request to appear as amicus curiae by the NJ Network of Catholic School Families.  On October 7, 2011, via email, a letter brief was recieved in response to the October 6, 2011 email from the Council advising of the decision to permit the NJ Network of Catholic School Families (the "Network") and the NJ Catholic Conference (the"Conference") to appear as amicus curiae in this matter from the Claimant in objection to those appearances.

To view the full version of the Claimant's Letter brief, please click here.

Claimant submits list of potential witnesses for October 18, 2011 hearing.  On October 11, 2011, via email, the Claimant Springfield BOE presented its list of potential witnesses for the October 18, 2011 hearing to held in Trenton, NJ.

To view the full version of the Claimant's list of potential witnesses, please click here.

Respondent Department of Education submits list of potential witnesses and exhibits for upcoming hearing.  On October 13, 2011, via email, the Respondent Department of Education presented its list of potential witnesses and exhibits for the October 18, 2011 hearing.

To view the full version of the Respondent's list of potential witnesses and exhibits, please click the highlighted text.

Claimant Springfield BOE submits potential exhibits for upcoming hearing.  On October 13, 2011, via email, the Claimant Springfield BOE presented its list of potential exhibits for the October 18, 2011 hearing.

To view the full version of the Claimant's list of potential exhibits, please click here.

Amicus Letter brief submitted by the New Jersey Network of Catholic School Families.  On October 13, 2011, via email, the Amicus letter brief was recieved in support of the State's position that Aid-in-Lieu is not an unfunded mandate, and is due and payable to eligible parents pursuant to N.J.S.A. Section 18:39A-1.

To view the full version of the Amicus letter brief with exhibits and certification of service, please click here.

Amicus Letter Brief from the New Jersey Association of Independent Schools re Springfield Board of Education Aid-in-lieu issue.  On October 14, 2011, via email, the Amicus letter brief was recieved from Carole J. Everett, Executive Director on behalf of the New Jersey Association of Independent Schools.

To view the full version of the Amicus letter brief, please click here.

Claimant's letter brief in response to the Amici letter brief on behalf of the New Jersey Network of Catholic Schools and the New Jersey Catholic Conference.  On October 16, 2011, via email, the Claimant submitted a letter brief objecting to the appearance of the New Jersey Network of Catholic Schools and the New Jersey Catholic Conference as amici in this matter.

To view the full version of the Claimant's letter brief, please click here.

Council issues their written opinion.  On February 15, 2012, via email, the Council issued their written opinion in the matter of the Springfield Board of Education to all interested parties.

To view the full version of the written opinion, please click here.

PLEADING SUMMARIES.

This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints.  The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.

Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.

Claimant Springfield Board of Education's Summary of Complaint:

Paragraph II (1)

N.J.S.A. 18A:39-1, as amended by L. 1990 c. 52, Section 50; L. 1992 c. 33, Section 1/N.J.S.A. 18A:39-1a, as amended by L. 1996, c. 138, Section 66; L. 2001, c. 437, Section 1; and L. 2007, c. 260, Section 62.

Paragraph II (2)

L. 1990 c. 52, Section 50 (effectively on July 1, 1990); and L. 1992 c. 33, Section 1 (effective on December 20, 1996); L. 2001, c. 437, Section 1 (effective January 10, 2002); and L. 2007, c. 260, Section 62 (effective January 13, 2008).

Paragraph II (3)

                N.J.S.A. 18A:39-1, as amended by L. 1990 c. 52, Section 50; L. 1992 c. 33, Section 1/N.J.S.A. 18A:39-1a, as amended by L. 1996, c. 138, Section 66; L. 2001, c. 437, Section 1; and L. 2007, c. 260, Section 62 constitutes an unfunded mandate because the State has not provided resources, other than the property tax, to offset the additional direct expenditures required for implementation of each of the amendments.

                In particular, N.J.S.A. 18A:39-1 et seq. governs a school district's obligation to provide transportation to students.  Specifically, N.J.S.A. 18A:39-1 requires a school district that provides transportation for public school students to also provide transportation for non-public school students residing within the school district.  That provision sets a monetary cap for the provision of such transportation.  It also provides that, should a school district be unable to provide transportation to not-public school students for the maximum amount or less, the district must provide and "aid in lieu" of transportation payment to the student's parent or guardian in the amount of the cap.  Districts are therefore mandated to provide either transportation or aid in lieu payments to these non-public school students.  This is supported by both the language of the legislation and the sponsor's statement in support of the legislation.  N.J.S.A. 18A:39-1a specifies a cap amount for the 2002-2003 school year and provides that that "amount shall be increased in each subsequent year in direct proportion to the increase in State transportation aid per pupil in the year prior to the prebudget year compared to the amount for the pregbudget year by the CPI, whichever is greater."

                Pursuant to N.J.S.A. 18A:39-1a, the cap amount has been increased several times since these statutory provisions took effect.  In particular, while the original statute was passed in the early 1960's, each of the challenged amendments (as set forth above) mandated additional financial obligations on local boards of education, which, over the years have been funded in whole or in part by property taxes.  Indeed, since 1996 - the relevant year for purposes of a challenge filed with the Council on Local Mandates - the State has passed legislation on multiple occasions that increases the financial burden on local boards of education but has failed to fully fund these additional obligations.  This is in direct violation of the constitutional amendment prohibiting unfunded mandates.  Indeed, each amendment after 1996 that increased the amount local boards of education are required to pay for the transportation of non-public school students (either through providing transportation or aid in lieu of transportation payments) without a corresponding increase in state aid specifically earmarked for this transportation or aid in lieu amounts to an unfunded mandate.

                Since 1996, the State has failed to fully fund these increased financial obligations and, instead, has placed that obligation on the local boards of education to fund through the use of property taxes.  The Comprehensive Educational Improvement and Financing Act ("CEIFA") set forth a calculation of State aid for student transportation.  N.J.S.A.18A:7F-57.  One factor in the formula represented the total number of public school and non-public school students eligible for transportation pursuant to N.J.S.A. 18A:39-1.  No such aid corresponding to the increases mandated by L. 1996, c. 138, Section 66, L. 2001, c. 437, Section 1 or L. 2007, c. 260, Section 62 was provided by CEIFA or its successor statute, the School Funding Reform Act of 2008 ("SFRA").  Indeed, neither one of these school funding formulas have been fully funded by the State since 1996.  The statutory amendments challenged with this petition therefore expanded the financial obligations of local boards of education without corresponding increases in funding to offset these obligations.  In particular, upon information and belief, the Springfield Public School District ("The District") did not receive the requisite State aid to offset the increases in costs mandated by the challenged amendments.  As such, N.J.S.A. 18A:39-1 et seq. violates the New Jersey Constitution and must be stricken.

                In addition, pursuant to Governor Christie's State budget for fiscal year 2011, the District did not receive any State aid for the 2010-2011 school year.  Moreover, pursuant to Governor Christie's proposed State budget for fiscal year 2012, the District has been advised that the only State aid it will receive will be specifically designated for special education.  Therefore, it is the District's understanding that it will receive no transportation aid for the 2011-2012 school year.  As such, as of the 2010-2011 school year, the requirements contained within N.J.S.A. 18A:39-1 and 18A:39-1a that local boards of education provide transportation or aid in lieu of transportation for non-public school students have become unfunded mandates with regard to school districts that are receiving no transportation aid.  There can be no doubt that the District, because it did not receive any State aid last year and is projected to receive no State aid next year, is subject to an unfunded and unconstitutional mandate.

                The Board articulated this position to the Department of Education (the "DOE") by letter dated June 22, 2010.  See Exhibit A.  For nearly eight months, the Board received no response from the DOE.  Finally, by way of letter dated February 18, 2011, the DOE advised the Board that it is obligated to provide transportation or aid in lieu thereof for non-public school students regardless of whether the Board receives State aid to cover such costs.  See Exhibit B.  At its February 28, 2011 meeting, the Board elected to appeal the DOE's position by challenging the mandate, contained within the statutory provisions referenced above, as an "unfunded mandate."  See Exhibit C."

The above summary is a quotation from the Complaint filed by Michael Davino, Superintendent, on behalf of the Springfield Board of Education, on March 28, 2011.

Respondent, State of New Jersey, Department of Education Summary of Answer and Motion to Dismiss the Complaint:

  "Respondent denies that the increases in the maximum cost for transportation on non-public students pursuant to N.J.S.A. 18A:39-1 and N.J.S.A. 18a:39-1a are an unfunded mandate.  Pursuant to N.J.S.A. 18A:39-1, each school district is directed to provide transportation to those students that attend non-public schools located between two and twenty miles away from the student's residence.  The total cost of the transportation for the district is capped by N.J.S.A. 18A:39-1a.  The Claimant alleges that since 1996, "the State has passed legislation on multiple occasions that increases the financial burden on local boards of education but has failed to fully fund these additional obligations."  Claimant is challenging the annual increases in the transportation cap pursuant to N.J.S.A. 18A:39-1a.  However, N.J.S.A. 18A:39-1a was amended again in 2001 to include the following language:

In the 2002-2003 school year and thereafter, any additional costs incurred by a school district due to the increase in the maximum amount of non-public school transportation costs per pupil pursuant to this section shall be borne by the State."

[N.J.S.A. 18a:39-1A].

Any increases in the cap for transportation of non-public students by a school district is reimbursed by the State at the end of each school year.  Claimant has applied for and received reimbursement at the end of each of the last five school years.  Therefore, the increases in the transportation cap pursuant N.J.S.A. 18:39-1a are not unfunded mandates.

                WHEREFORE, Respondent requests that the Council on Local Mandates dismiss Claimant's Complaint."

The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by Christopher Huber, Deputy Attorney General, on behalf of the State of New Jersey, Department of Education on May 9, 2011.

Respondent's Notice of Motion for Summary Decision:

 LEGAL ARGUMENT

POINT I

THE COUNCIL LACKS JURISDICTION TO REVIEW N.J.S.A. 18A:39-1.

    To the extent Claimant is challenging the directive in N.J.S.A. 18A:39-1 for school districts to provide transportation to nonpublic students, the mandate predates the formation of the Council on Local Mandates and is, therefore, not subject to its jurisdiction.  The Council on Local Mandates may review and issue rulings regarding any provision of a statute enacted on or after January 17, 1996.  N.J.S.A.  52:13H-12.  The statute requiring N.J.S.A. 18A:39-1a because N.J.S.A. 18A:39-1 has not been amended since 1992.  School districts to provide transportation to nonpublic students was originally enacted in 1967.  L. 1967, C. 271.  The original statute established the requirement that is still in effect today.  N.J.S.A. 18A:39-1.  Moreover, N.J.S.A. 18A:39-1 has not been amended since 1992.  L. 1992, c. 33, §1.  Therefore, even the latest amendment to N.J.S.A. 18A:39-1 predates this Council's formation and the Council has no jurisdiction to review this statute.  N.J.S.A. 18A:39-1.

 POINT II

THE MANNER IN WHICH THE MAXIMUM ALLOWABLE TRANSPORTATION COST WAS CALCULATED UP UNTIL THE EFFECTIVE DATE OF L. 2001, c. 437, §1 PREDATES THE JURISDICTION OF THIS COUNCIL.

A. L. 1990, c. 52, §51 Predates the Jurisdiction of This Council.

The mandated annual calculation of the maximum allowable transportation cost pursuant to L. 1990, c. 52, §51 predates the jurisdiction of this Council.  L. 1990, c. 52 read in relevant part

Beginning in the 1992-1993 school year and in each subsequent year, the maximum amount of non-public school transportation costs per pupil provided for in N.J.S.A. 18A:39-1 shall be increased or decreased in direct proportion to the increase or decrease in the State transportation aid per pupil in the year prior to the prebudget year compared to the amount for the prebudget year.

[L. 1990, c. 52, §51].

This amendment established the method for the annual calculation of the maximum allowable cost until it was amended in 2001 by L. 2001, c. 437, §1.  As noted above, the Council has jurisdiction to review any provision of a statute enacted on or after January 17, 1996.  N.J.S.A. 52:13H-12.  It is clear that the mandated annual calculation of the maximum allowable cost established by L. 1990, c. 52, §51 predates the jurisdiction of this Council.

B. L. 1996, C. 138, §66 Did Not Amend the Calculation Method for the Maximum Allowable Transportation Cost, and Therefore, the Method Predates this Council's Jurisdiction.

     L. 1996, C. 138, §66 did not amend the manner in which the maximum allowable transportation cost was annually calculated, and therefore, this mandate is predates this Council's jurisdiction.  Claimant alleges that L. 1996, C. 138, §66 (the 1996 amendment to N.J.S.A. 18A:39-1a) constituted an unfunded mandate.  Claimant argues that from the 1996 amendment forward, the mandated increases in the maximum amount of transportation costs for nonpublic students constitutes an unfunded mandate.  Claimant argues that from the 1996 amendment forward, the mandated increases in the maximum amount of transportation costs for nonpublic students constitutes an unfunded mandate.  However, L. 1996, C. 138, §66 did not alter the manner in which the maximum allowable transportation cost is calculated.  As noted above, the statue was amended in 1990 to provide for increases or decreases in the maximum transportation cost "in direct proportion to the increase or decrease in the State transportation aid per pupil in the year prior to the prebudget year compared to the amount for the prebudget year."  L. 1990, c. 52, §51.

     This provision remained unchanged until the 2001 amendment to the statute.  The mandated annual increase in the maximum transportation cost from 1996 until the effective date of the 2001 amendment was established pursuant to L. 1990, c. 52, §51.  Therefore, the provision mandating the increase in the maximum transportation cost was enacted before the formation of this Council, and therefore, is not subject to its review.  See N.J.S.A.  52:13H-12.

 POINT III

THE ANNUAL INCREASE IN THE MAXIMUM TRANSPORTATION COST PER PUPIL PURSUANT TO THE L. 2011, C. 437, §1 IS NOT AN UNFUNDED MANDATE.

     The annual increases in the maximum transportation cost pursuant to L. 2001, c. 437, §1 are borne by the State and are, therefore, not an unfunded mandate.  To meet its burden of proof that the statute is an unfunded mandate, the Claimant must prove that the statute "does not authorize resources, other than property tax, to offset the additional direct expenditures required" for its implementation.  N.J. Const. Art. VIII, §II, para. 5.  L.  2011, c. 437, §1 provides for an annual increase in the maximum transportation cost for nonpublic students "in direct proportion to the increase in the State transportation aid per pupil in the year prior to the prebudget year compared to the amount of the prebudget year or by the CPI, whichever is greater."

     However, the statute also provides that any increase in the maximum allowable cost from the 2002-2003 school year forward shall be borne by the State.  Ibid.  The maximum transportation cost for the 2001-2002 school year was $710.  See Certification at ¶9.  The 2001 amendment to N.J.S.A. 18A:39-1a raised the maximum cost to $735, but that increase was, and all future increases are, borne by the State.  Each year, NJDOE reimburses school districts, including Claimant, any amount they paid per pupil for transportation or for aid in lieu of transportation pursuant to N.J.S.A. 18A:39-1 greater than $710, the maximum cost the year before the effective date of the 2001 amendment to the statute.  See Certification of Dorothy Shelmet at ¶12.

     Claimant's allegation that its State aid has not increased to compensate for the increases in the cap amount for transportation of nonpublic students pursuant to N.J.S.A. 18A:39-1a is without merit⁴.  The increases in the transportation cap have been borne by the State and school districts have been reimbursed the difference between the original cap amount of $710 and the cap amount for any subsequent year.  L. 2001, c. 437, §1; Certification of Dorothy Shelmet at ¶12.  Claimant has received reimbursement every year since the 2002-2003 school year.  See Certification of Dorothy Shelmet at ¶16.  Moreover, to the extent that Claimant alleges that the transportation costs that it incurred for the 2010-2011 school year and its projected costs for the 2011-2012 school year are unfunded, these claims are without merit because Claimant has not set forth any evidence that these reimbursements will not occur as provided in L. 2001, c. 437, §1.  As the law currently stands, any per pupil amount incurred by Claimant up to the maximum allowable cost is reimbursable pursuant to the calculation noted above.

     Contrary to Claimant's assertions, the yearly increases in the transportation cap for nonpublic students have not been borne by the school districts but have been borne by the State, as is required pursuant to L. 2001, c. 437, §1.  Each increase in the maximum transportation cost per pupil above $710 is reimbursed by the State, including the Claimant's.  Therefore, the increases in the nonpublic transportation cap pursuant to L. 2001, c. 437, §1 is not an unfunded mandate.

 CONCLUSION

                For the foregoing reasons, Claimant's complaint should be dismissed with prejudice.

  4To the extent that Claimant alleges that L. 2001, c. 437, §1 is an unfunded mandate because it has not received  transportation aid under the School Funding Reform Act ("SFRA"), L. 2007, c. 260, §62, this argument is similarly without merit.  Reimbursement pursuant to L. 2001, C. 437, §1 is outside of the SFRA and is not effected by the amount of State aid that a district receives.

The above summary is a quotation from the Notice of Motion for Summary Decision filed by Christopher Huber, Deputy Attorney General, on behalf of the State of New Jersey, Department of Education on May 24, 2011.

Claimant's Letter Brief in Opposition to the Respondent's Motion for Summary Decision:

 LEGAL ARGUMENT

I.          STANDARD OF REVIEW.

        The Council has made clear in prior opinions that it reviews requests for summary disposition "with great caution."  In the Matter of Complaints Filed by the Highland Park Board of Education and the Borough of Highland Park ("Highland Park I"), decided August 5, 1999, at 13. A party bringing a motion for summary decision must meet a high burden because decisions of the Council are political determinations and are final.  See N.J.S.A. 52:13H-18; see also Highland Park I at 7.  The Council will grant such a motion only if it concludes that "no further factual information would be relevant to its decision."  In the matter of a Complaint filed by Ocean Township (Monmouth County) and Frankford Township ("Ocean/Frankford"), decided August 2, 2002, at 5. 

        In the present matter, it would be premature for the Council to dismiss the Board's Complaint at this juncture.  The DOE has not demonstrated that no further factual information is necessary for the Council to make a decision.  Indeed, the DOE has provided no valid factual or legal basis to dismiss the Board's Complaint.  Accordingly, the Council should deny the DOE's motion and allow this matter to proceed to a hearing.  

II.        THE COUNCIL HAS JURISDICTION TO REVIEW THE STATUTORY PROVISIONS AT ISSUE.

       Despite the DOE's argument to the contrary, the Council has the authority to review both N.J.S.A. 18A:39-1 and 18A:39-1a. 

       The Local Mandates Act ("LMA") authorizes the Council to review and rule upon statutory provisions enacted on or after January 17, 1996 and "any part of a rule or regulation originally adopted after July 1, 1996 pursuant to a law regardless of when that law was enacted."  N.J.S.A. 52:13H-12.  "The obvious purpose of this legislative provision . . . is to prevent the Council from becoming involved in fiscal policymaking." Ocean/Frankford at 12.  Nonetheless, the Council has not hesitated in the past to review statutes in place prior to 1996 when a change in State policy or practice subsequently shifts the financial burden of a mandate from the State to a local unit.   See In re Complaints filed by the Counties of Morris, Warren, Monmouth, and Middlesex ("Morris"), decided September 26, 2006, at 6; see also In re Mayors of Shiloh Borough and the Borough of Rocky Hill et al. ("Shiloh"), decided October 22, 2008, at 5.  That is, when the State's funding of a mandate prior to 1996 sets a baseline, "any change of policy away from that ‘State Pay' baseline after 1996 is a new decision that is subject to the new constitutional rules."  Morris at 13. 

        In Morris, the State had funded the removal of deer carcasses from State, county, and local roadways for over 20 years, pursuant to a regulation adopted in 1986 and the State's "actual practice."  Id. at 8.  On June 7, 2006, the State issued as a press release a letter to all mayors advising that the State would no longer be providing that service and that counties and municipalities should begin preparing to perform that function themselves.  Id. at 3.  The counties of Morris, Warren, Monmouth and Middlesex filed a complaint with the Council, alleging that the June 7 notice, which shifted the financial burden of removing deer carcasses from the State to counties and municipalities, created an unconstitutional unfunded mandate.  Id. The New Jersey Department of Transportation ("NJDOT") answered the complaint and moved to dismiss the counties' complaint.  Id.  The NJDOT argued that the June 7 notice was not a "rule or regulation" reviewable by the Council and that the NJDOT was not mandating that "anyone . . . do anything."  Id. at 9.  

        The Council denied the NJDOT's motion to dismiss and in fact granted summary decision on behalf of the claimant counties.  Id. at 14.  Because the practical consequence of the June 7 notice was that counties and municipalities were forced to assume responsibility, at their own expense, for the removal of deer carcasses, the Council had the power to deem the new policy statement an unfunded mandate encompassed by the "rule or regulation" provision of the Amendment.  The Council found that "because it does not authorize resources to offset the related costs of what is a new function or responsibility for local governments, the June 7 notice violates the LMA," regardless of its informal promulgation.  To hold otherwise, the Council concluded, would render meaningless the constitutional requirement of "State mandate, State pay."  Id. at 13. 

        The Shiloh case is similarly instructive.  Since 1921, the State had been required by statute to provide police protection to numerous rural towns at the State's full expense.  Shiloh at 5.  The Fiscal Year 2009 Appropriations Act, however, shifted a significant portion of the expense from the State to the various municipalities by requiring the municipalities to enter into cost-sharing agreements with the State.  Id. at 5-6.  The Council found that the challenged portion of the Appropriations Act amounted to an unconstitutional unfunded mandate because it did not "authorize resources, other than the property tax, to offset the additional direct expenditures required for the implementation of the law or rule or regulation."  Shiloh at 6.

        Similarly here, although N.J.S.A. 18A:39-1 took effect prior to January 17, 1996 and prior to July 1, 1996, the Fiscal Year 2011 Appropriations Act (and the proposed State budget for fiscal year 2012), which failed to provide any aid to the Board to offset transportation costs, constituted a State policy mandate relative to N.J.S.A. 18A:39-1.  The "practical effect" of this mandate, as emphasized by the Council in the Morris case, was to shift the financial burden of providing transportation or aid-in-lieu of transportation to non-public students residing in Springfield from the State to the Board.  While passage of the State budget does not on its face require "anyone to do anything," practically speaking, the Board is still required to abide by the mandates of N.J.S.A. 18A:39-1, regardless of whether it receives transportation aid.  The State's failure to provide any transportation aid to the Board for the 2010-2011 and 2011-2012 school years renders the requirements of that statutory provision entirely unfunded.  Due to this change in the practical reality of State aid to local school districts, the mandate that the Board provide transportation or aid-in-lieu of transportation to non-public students residing in Springfield is an unconstitutional unfunded mandate.  As in Shiloh, the Council here is not "second-guessing legislative judgments about the adequacy of the legislative funding, but simply recognizing the explicit terms and the acknowledged consequences of the legislation."  Shiloh at 10.

        To permit the DOE to flout the notion of "State mandate, State pay" simply because the challenged statutory provisions took effect prior to 1996, although a later discontinuance of State funding now renders the mandates of those provisions unfunded, would nullify the precise reason this Council was created.  As precedent has established, the Council's authority to review N.J.S.A. 18A:39-1 and 18A:39-1a is clear in view of the recent State policy shift rendering those provisions unconstitutional unfunded mandates.  The DOE's motion to dismiss should be denied and the challenged statutory provisions struck down.

III.   THE COUNCIL SHOULD STRIKE DOWN THE CHALLENGED STATUTORY PROVISIONS IN THEIR ENTIRETY BECAUSE THE STATE'S FAILURE TO

PROVIDE TRANSPORTATION AID TO THE BOARD HAS RENDERED THEM UNFUNDED MANDATES.

        As the Council has jurisdiction to review N.J.S.A. 18A:39-1 and 18A:39-1a, those provisions should be struck down in their entirety as unconstitutional unfunded mandates now that the State is not providing the Board with any transportation funding.  N.J.S.A. 18A:39-1 et seq. governs a school district's obligation to provide transportation to students.  Specifically, N.J.S.A. 18A:39-1 requires a school district that provides transportation for public school students to also provide transportation for non-public school students residing within the school district.  That provision sets a monetary cap for the provision of such transportation.  It also provides that, should a school district be unable to provide transportation to non-public school students for the maximum amount or less, the district must provide an "aid in lieu" of transportation payment to the student's parent or guardian in the amount of the cap.  Districts are therefore mandated to provide either transportation or aid in lieu payments to these non-public school students. 

        Pursuant to the State budget for fiscal year 2011, the Board did not receive any State aid for the 2010-2011 school year.  (Clarke Cert. at ¶ 16.)  Moreover, pursuant to the proposed State budget for fiscal year 2012, the Board has been advised that the only State aid it will receive will be specifically designated for special education.  (Id. at ¶ 21.)  Therefore, the Board will receive no transportation aid for the 2011-2012 school year.  As such, as of the 2010-2011 school year, the requirements contained within N.J.S.A. 18A:39-1 and 18A:39-1a, that local boards of education provide transportation or aid in lieu of transportation for non-public school students, have become unfunded mandates for school districts that are receiving no transportation aid.  The fact that not every school district in the State lost its transportation aid in fiscal years 2011 and 2012 should not preclude a finding by this Council that the statutes should be struck down as unconstitutional unfunded mandates.  Indeed, "the Council has never required that, in order to prevail, a claimant must prove that a regulation constitutes an unfunded mandate for all school districts in all circumstances." Highland Park III at 7 (recognizing that a narrow application of the unfunded mandate will not limit the Council's holding where the particular issue only applied to regional charter schools). 

        In proposing and passing the fiscal year 2011 and 2012 State budgets, the Executive branch and the Legislature have stripped the Board and similarly situated school districts of the funding they were previously receiving to implement the mandates of N.J.S.A. 18A:39-1 and 18A:39-1a.  In effect, the State has rendered its own statute an unfunded mandate.  N.J.S.A. 18A:39-1 and 18A:39-1a should be struck down in their entirety.

IV.    SHOULD THE COUNCIL DECLINE TO STRIKE DOWN THE CHALLENGED STATUTORY PROVISIONS IN THEIR ENTIRETY,

THE AMENDMENTS TO THE STATUTES SHOULD STILL BE STRUCK DOWN AS UNCONSTITUTIONAL UNFUNDED MANDATES.

         The Council should strike down N.J.S.A. 18A:39-1 and 18A:39-1a in their entirety because they amount to unconstitutional unfunded mandates.  Should the Council decline to do so, however, the Council should still strike down the statutory amendments because they placed additional financial mandates on school boards without corresponding increases in funding. 

         Pursuant to N.J.S.A. 18A:39-1a, the cap amount -- the transportation amount school districts are required to pay for students who reside in the district but do not attend district schools -- has been increased several times since the general mandate to provide transportation or aid-in-lieu took effect.  These amendments mandated additional financial obligations on local boards of education. [1]  The DOE argues in its brief that the State has indeed financed these increases, pursuant to the requirement of N.J.S.A. 18A:39-1a that any increase in the cap amount from the 2002-2003 school year onward be borne by the State.  (Motion for Summary Decision, p. 11.)  The DOE explains that school districts, including the Springfield Board of Education, receive this funding in the form of a reimbursement at the end of each school year for the difference between the current cap amount as set by the State and the 2002-2003 school year.  (Id. at p. 11-12.) 

         The Board does not dispute that, each year since the 2002-2003 school year, it has received reimbursement for some portion of the difference between the current cap amount for each of those years and the 2001-2002 cap amount of $710. However, while the DOE urges that the Board has received all moneys to which it is entitled, the Board has not received, in any year, reimbursement for the difference between the current cap amount and the cap amount as it stood in 1996, when the Council on Local Mandates was vested with the authority to strike down unconstitutional unfunded mandates.  In 1996, the cap amount was set at $675.  This meant that school districts that could provide transportation to non-public school students for $675 or less were obligated to provide such transportation.  If they could not, they had to pay the students $675 to cover transportation costs to their non-public schools for that school year.  The cap amount was increased several times between 1996 and 2001, when the Legislature amended the statutes to increase the cap amount for the 2002-2003 school year to $735 and provided that:

this amount shall be increased in each subsequent year in direct proportion to the increase in the State transportation aid per pupil in the year prior to the prebudget year compared to the amount for the prebudget year or by the CPI, whichever is greater.             

                        N.J.S.A. 18A:39-1a.

 Therefore, increases between $710 and the current cap amount began to be reimbursed by the State at the end of each school year. 

         By way of example, in the present case, the current cap amount is set at $884.  Accordingly, in July 2010, pursuant to N.J.S.A. 18A:39-1a, the Board received a reimbursement payment from the State for the amount of the difference between $884 and $710, multiplied by the number of out-of-district students it transported.  (Clarke Cert. at ¶ 15.)  However, N.J.S.A. 18A:39-1a does not mandate, and the State has never provided, reimbursement for the difference between the current cap amount and the 1996 cap amount of $675.  Indeed, the State-mandated increase from $675 to $710 has been funded solely by local school districts with no corresponding aid from the State.  Therefore, while the reimbursements for increases began in the 2002-2003 school year, the operative date on which the Council must focus is the cap amount as set in 1996, since the increases between $675 and $710 have never been funded by the State.

         The fact that the Board has received partial reimbursement for the cap amount increases does not preclude a finding of an unconstitutional unfunded mandate.  The Council has recognized that "there would be little substance in the constitutional ‘State mandate/State pay' directive if the legislature could avoid it by expressly electing to provide a specified partial amount of funding for a mandate and leaving an acknowledged balance of the cost to be shouldered by the local units."  Shiloh at 12.  In Shiloh, the Council still struck down the challenged portion of the Appropriations Act as an unfunded mandate even where the State partially funded the mandate with a $5 million appropriation to offset the $12.5 million cost of implementation. 

         Because the statutory amendments require additional expenditure of funds by local school districts without providing full reimbursement to offset those expenditures, the amendments should be struck down as unconstitutional unfunded mandates.

            V.  SHOULD THE COUNCIL DECLINE TO STRIKE DOWN ANY PORTION OF THE CHALLENGED PROVISIONS AT THIS 

JUNCTURE, THE BOARD IS ENTITLED TO A HEARING.

             Should the Council decline to strike down N.J.S.A. 18A:39-1 and 18A:39-1a as unconstitutional unfunded mandates at this juncture, the Board is entitled, at least, to a hearing due to the unresolved issues of fact, as evidenced by the conflicting facts reflected in the DOE's Certification of Dorothy Shelmet compared and contributed with the Board's Certification of Matthew A. Clarke.  By way of example, while Ms. Shelmet states that the Board has received a reimbursement payment each year through the 2009-2010 school year (See Certification of Dorothy Shelmet at ¶ 16), Mr. Clarke points out that the Board has only received reimbursement of the difference between the current cap amount and the 2001-2002 school year amount, but has never been reimbursed for the difference between the current cap amount and $675, the 1996 cap amount.  (See Clarke Cert. at ¶ 20.)  If the Council declines to strike the challenged provisions at this juncture, it should allow this matter to proceed to a hearing to resolve the outstanding issues of fact.        

             For the foregoing reasons, the Springfield Board of Education respectfully requests that the Department of Education's Motion to Dismiss be denied and the challenged statutory provision stricken.

 [1] The Board refers to the following amendments: N.J.S.A. 18A:39-1, as amended by L. 1990 c. 52, Section 50; L. 1992 c. 33, Section 1 / N.J.S.A. 18A:39-1a, as amended by L. 1996, c. 138, Section 66; L. 2001, c. 437, Section 1; and L. 2007, c. 260, Section 62.

The above summary is a quotation from the Claimant's Letter Brief in Opposition to the Respondent's aid-in-lieu Motion to Dismiss filed by Vito A. Gagliardi, Jr., on behalf of the Springfield Board of Education on June 21, 2011.

Respondent's Letter Brief in lieu of a more formal Response to the Opposition and Cross Motion filed by Claimant in Response to the Motion to Dismiss filed by Respondent:

 LEGAL ARGUMENT

POINT I

THE FACT THAT CLAIMANT DID NOT RECEIVE AND IS PROJECTED NOT TO RECEIVE TRANSPORTATION AID DOES NOT TURN N.J.S.A. 18A:39-1 AND N.J.S.A. 18A:39-1a INTO UNFUNDED MANDATES.

                 The central argument in Claimant's opposition is that the amendments to N.J.S.A. 18A:39-1 and N.J.S.A.  18A:39-1a are unfunded mandates because Claimant did not receive transportation aid for the 2010-2011 school year and is projected not to receive transportation aid for the 2011-2012 school year.  Claimant argues that "the State's failure to provide any transportation aid to the Board for the 210-2011 and 2011-2012 school years renders the requirements of that statutory provision entirely unfunded."  See Opposition at 6.  Claimant further argues that this cut in funding grants the Council jurisdiction to review N.J.S.A. 18a:39-1 and the pre-2001 amendments to N.J.S.A. 18A:39-1a because State policy and practice have changed.  Ibid.

                These arguments are without merit and ignore the fact that Claimant received State funding for the transportation of nonpublic students for the 2010-2011 school year and will again for 2011-2012.  The allocation of State funds is beyond this Council's jurisdiction.  The Council only has the ability to strike down that portion of a statute that it deems to be an unfunded mandate.  N.J.S.A 52:13H-12.  Transportation of nonpublic students has never been fully paid for by the State.  The cost is paid for by districts and subsidized by the State through both reimbursement and transportation aid, if any.  Claimant must bear a portion of the cost regardless of whether they receive transportation aid or not.  The nature of the mandate to provide transportation to nonpublic school students has not changed.  The only difference is the level of funding that Claimant received.  Claimant acknowledges that it has received reimbursement of costs for the transportation on nonpublic school students above $710, up to the annual maximum allowable cost, every year since the 2002-2003 school year, and it will receive its reimbursement for the 2010-2011 school year shortly, if it has not been received already.  Thus, what Claimant is essentially arguing is that a decrease in funding for a long preexisting mandate, not a total elimination of funding, amounts to an unfunded mandate.

                However, as the Council pointed out in Ocean Township, "the Council does not have the authority to determine whether the funding of any statute is adequate."  In re Ocean Township (Monmouth County) and Frankford Township, decided August 2, 2002, at 12.  The Council may review a legislature's method of funding only "if that method is seriously flawed to the point of being illusory."  Ibid.  The State is still subsidizing the cost of transportation of nonpublic school students through reimbursements pursuant to L. 2001, c. 437, §1.  For the 2010-2011 school year, Claimant was reimbursed all transportation costs for nonpublic school students above $710 up to the maximum allowable cost of $884.  Even if Claimant paid aid in lieu of transportation for every nonpublic student in the district at a cost of $884 per student, it would be reimbursed $174 per student.  Such a funding methodology is clearly not illusory.  Claimant does not contend that the methodology is illusory, but argues that these reimbursements are an insufficient level of funding so as to render the mandates transportation an unfunded mandate.  To apply Claimant's argument to all State subsidized programs, any time a portion of that State funding is decreased and the municipality must bear a larger percentage of the cost, however slight, it would be an unfunded mandate.  Surely, this was not the intent of "State mandate, State pay."  The sufficiency of the level of funding is certainly one of fiscal policymaking that is beyond the purview of this Council's review.  See Ocean Township, supra, at 12.

                Moreover, Claimants reliance on Shiloh and Morris are also misplaced.  In Morris, the New Jersey Department of Transportation materially changed their policy to shift the burden for the collection and removal of deer carcasses entirely to local municipalities.  In re Counties of Morris, Warren, Monmouth and Middlesex, decided September 26, 2006, at 14.  In this case, the nature and scope of the mandate to provide transportation to nonpublic school students has not changes.  No new obligation has been imposed on Claimant.  The only change is a decrease in funding to subsidize the cost of the transportation.  Claimant is still not responsible for the entire cost of the transportation and whether this level of funding is adequate is a legislative question and beyond the scope of this Council's authority.

In Shiloh, the Council determined that partial funding of a new mandate for rural municipalities to provide their own police services constituted an unfunded mandate.  In re the Mayors of Shiloh Borough and the Borough of Rocky Hill, decided October 22, 2008, at 12.  However, the mandates imposed by N.J.S.A. 18A:39-1 AND N.J.S.A. 18A:39-1a are not new.  The mandate to provide transportation to nonpublic school students has been in effect since 1967, well before the jurisdiction of this Council.

Throughout that time, the State has never funded the entire cost of the transportation.  The only thing that changed for 2010-2011 and 2011 and 2012 is the level of funding, not the nature or scope of the obligations on Claimant.  The cost of transportation is still subsidized by the State through the annual reimbursements pursuant to L. 2001, c. 437, §1.  The adequacy of this level of funding is a legislative issue and beyond the scope of this Council's authority.

                As stated in Respondent's moving papers, this Council lacks jurisdiction to review L. 1967, c. 271, or the 1992 amendment, L. 1992, C. 33, §1.  The mandate to provide transportation to nonpublic school students has not changed since N.J.S.A. 18A:39-1 was first enacted in 1967.  Moreover, as noted above, the decrease in the level of funding for the 2010-2011 school year and the projected decrease for the 2011-2012 school year does not confer jurisdiction on this Council because the nature and scope of the mandate has not changed and the State is still subsidizing a portion of the district's costs for complying with this mandate.  The costs associated with N.J.S.A. 18A:39-1 have never been fully paid for by the State and Claimant is still receiving State funds through the reimbursements pursuant to L. 2001, C. 437, §1.  The mandate of N.J.S.A. 18A:39-1 predates the formation of this Council and the change in funding has not created an unfunded mandate.  Therefore, L. 1967, c. 271 and L. 1992, C. 33, §1 are beyond this Council's jurisdiction.

POINT II

THE COUNCIL STILL LACKS JURISDICTION TO REVIEW L. 1990, c. 52, §51 and L. 1996, C. 138, §66.

                 Likewise, the Council lacks jurisdiction to review L. 1990, c. 52, §51 and L. 1996, C. 138, §66.  As stated in Respondent's moving papers, L. 1990, c. 52, §51 established the method for the annual calculation of the maximum allowable cost until it was amended in 2001 by L. 2001, c. 437, §1.  L. 1996, C. 138, §66 did not alter this calculation method.  The method of calculating the maximum allowable cost did not change until the 2001 amendment to N.J.S.A. 18A:39-1a.  Therefore, this method of calculation predates the jurisdiction of this Council.

                Claimant again argues that the Council has jurisdiction to review the pre-2001 amendments to N.J.S.A. 18a:39-1a because they did not receive transportation aid for the 2010-2011 school year and are projected not to receive transportation aid for the 2011-2012 school year.  However, this argument is wholly unfounded.  The FY2011 and FY2012 Appropriations Act have no bearing on statutes that were superceded by L. 2001, c. 437, §1, the 2001 amendment to N.J.S.A. 18A:39-1a, and did not change any mandate in L. 1990, c. 52, §51 and L. 1996, c. 138, §66.  Therefore, the Council lacks jurisdiction to review L. 1990, c. 52, §51 and L. 1996, C. 138, §66.

                In addition, Claimant argues that it should be reimbursed for any increase in the maximum allowable transportation cost above $675, the maximum allowable cost when this Council was created.  The only basis that Claimant has for setting the base amount for reimbursement as the maximum allowable cost in 1996 is because that is when the Council was created.  However, as stated above, the Council lacks jurisdiction to review the maximum allowable transportation cost as it existed in 1996.  The maximum allowable transportation cost in 1996 was calculated pursuant to a methodology in L. 1990, C. 52, §51.  This calculation of the maximum allowable cost predates the jurisdiction of this Council.  Any increase in the maximum allowable cost following the 2001 amendment to N.J.S.A. 18A:39-1a were in accordance with the methodology outlined in that amendment, and as Claimant's admit, districts have been reimbursed the difference between the maximum allowable cost for a given year and $710 pursuant to L. 2001, c. 437, §1.

CONCLUSION

                For the foregoing reasons Respondent's Motion to Dismiss should be granted and Claimant's Cross-Motion should be denied.

The above summary is a quotation from the Legal Argument from the Respondent's Letter Brief in lieu of a more formal response to the Opposition and Cross Motion filed by Claimant, Springfield Board of Education on July 14, 2011.

 Respondent, State of NJ Department of Education, submits their Supplemental Brief:

   Please accept this supplemental brief on behalf of Respondent to address an additional jurisdictional issue that was not previously raised with the Council.  In preparing for the hearing is this matter, counsel discovered a seperate jurisdictional issue exists that should have been raised in Respondent's Motion to Dismiss and requests the opportunity to more fully address the issue before a hearing on the merits of Complainant's claims.  In short, the Council lacks jurisdiction to review N.J.S.A. 18A:39-1 and N.J.S.A. 18A:39-1a because the provision of transportation to nonpublic school students implements Article VIII, Section IV, paragraph 3 of the New Jersey Constitution, and therefore, the Council cannot consider these statutes unfunded mandates.

   As this Council is aware, laws or rules which "implement" the provisions of the New Jersey Constitution cannot be deemed unfunded mandates.  See N.J. Const., Art. VIII, Sec. II, Para. 5; N.J.S.A. 52:13h-3.  Article VIII, Section IV, paragraph 3 of the New Jersey Constitution states, "[t]he Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school."  The language of this paragraph in the New Jersey Constitution was adopted to directly address the transportation of students to nonpublic schools.  In the case of Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947), which ws decided before the 1947 Constitution, the Supreme Court upheld a board of education resolution authorizing the reimbursement of transportation costs for students that attended public and Catholic schools pursuant to a New Jersey statute directing boards of education to make rules and contracts for the transportation of children to and from school other than schools operated for profit.  The discussions amongst the delegates at the Constitutional Convention make it clear that the purpose of the paragraph was to grant the legislature the unquestionable authority to pass legislation regarding the transportation of students to all schools, not just public schools.  See Proceedings of the Constitutional Convention, pp. 704-726.  The inclusion of the provision in the Constitution was to prevent future challenges to the statutes, regulations or policies that mandated transportation of all students to any school on grounds that transportation to and from parochial schools was contrary to seperation of church and state.  Ibid.

   When read in the context of this constitutional provision, it is clear that N.J.S.A. 18A:39-1 and N.J.S.A. 18A:39-1a implement Article VIII, Section IV, paragraph 3 of the New Jersey Constitution.  N.J.S.A. 18A:39-1 mandates transportation for all students that live within 2.5 miles from school, regardless of whether it is public or nonpublic.  Similarly, N.J.S.A. 18A:39-1a provides a funding source and transportation cost cap for the transportation of nonpublic students.  Together, these statutes provide for the transportation of nonpublic school students and they unquestionably "implement" Article VIII, Section IV, paragraph 3, which granted the Legislature the authority to pass a law mandating the transportation of all students to any school.

   For the foregoing reasons, this Council cannot find that N.J.S.A. 18A:39-1 and N.J.S.A. 18A:39-1a are unfunded mandates.

The above brief is a quotation from the Supplemental Brief filed by Christopher Huber, Deputy Attorney General, on behalf of the State of New Jersey, Department of Education on September 15, 2011.

Claimant, Springfield BOE submits letter brief in lieu of a more formal brief in opposition to the untimely "supplemental" brief submitted by the respondent Department of Education ("DOE"):

   "Please accept this letter brief in lieu of a more formal brief in opposition to the untimely "supplemental" brief submitted by the respondent Department of Education ("DOE") in further support of its May 24, 2011 motion to dismiss the Board's Complaint.

   Initially, we object to the Council's consideration of the DOE's untimely "supplemental" brief.  The DOE's motion to dismiss was denied by this Council on August 4, 2011 -- more than 30 days before the DOE"s submission of its supplemental brief.  The DOE was presented with full opportunity to brief all issues related to its motion to dismiss and to argue such issues fully on August 4.  For this reason alone, the Council should reject the DOE's motion and permit the Board to proceed to the hearing presently scheduled for October 18, 2011.

   The DOE argues that the Council lacks jurisdiction to hear the Board's Complaint because of a provision in the Constitution permitting the Legislature to provide for the transportation of children to and from any school.  The constitutional provision -- set forth within the same Section, Article VIII Section IV, as the Thorough and Efficient Clause -- is as follows:

The Legislature may, within reasonable limitiations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school.

N.J. Constitution, Article VIII, Section IV, Paragraph 3 (hereinafter "the Transportation Clause").

   Respectfully, the exemption declaring that laws, rules or regulations "which implement the provisions of this Constitution" cannot be deemed to be unfunded mandates, does not deprive this Council of jurisdiction to review the statute challenged by the Board.  This "Hail Mary" pass tossed by the State has nothing to do with the pending Complaint.

   First, as this Council has previously held in I/M/O Complaints Filed By The Monmouth-Ocean Educational Services Commission, et al., decided August 20, 2004, the foregoing exemption was intended to avoid a "constitutional quagmire," wherein the constitutional requirements of Article VIII, Section II (i.e., the provisions prohibiting unfunded mandates and creating the Council on Local Mandates) would be in direct conflict with another constitutional requirement.  In analyzing an education mandate in view of the Thorough and Efficient Clause, the Council rationalized the reason for this exemption as follows:  "If the courts were to require the Legislature to implement specific measures to provide a thorough and efficient education, but this Council were bound to nullify any law imposing an unfunded mandate, the Legislature would find itself in a constitutional quagmire."  I/M/O Complaints Filed by the Highland Park Board of Education and the Borough of Highland Park, decided August 5, 1999.  In the cases analyzing this exemption, the ultimate issue was the dichotomy between two constitutional mandates.  The rationale is simply that if the Legislature were required to take some action under one constitutional provision, it should not be simultaneously prohibited from doing so by another constitutional provision.

   In the current case, the constitutional provision at issue is not a mandate.  The Legislature was not and is not constitutionally required to do anything.  Instead, the Constitution merely states that the Legislature "may" provide for the transportation of certain students to and from "any school."  The permissive, as opposed to mandatory, nature of this paragraph of the Constitution was made clear during the discussions among the delegates at the Constitutional Convention of 1947.  When considering the Transportation Clause, one delegate noted "this merely eliminates the danger that in the future a judicial interpretation in this State may find that granting little children the right to ride on a bus to school will be held contrary to our State Constitution.  That's all it does.  It doesn't go beyond that either."  N.J. Constitutional Convention, Volume 1, p. 718 (August 21, 1947).  Indeed, another delegate noted "that that proposal is permissive.  The Legislature may do something.  It permits the Legislature to do what the Legislature has already asserted that it had the right and power to do...In other words, if the Legislature in its wisdom does not see fit to enact legislation such as is proposed here, or, to turn it around, sees fit to repeal the present legislation, this clause leaves it perfectly free to do so..."  The discussion during the convention made it clear:  the Transportation Clause was included in the 1947 Constitution for the sole purpose of ending the debate as to whether public funding for transportation to and from private parochial schools offended the First Amendment of the Constitution.  It provides nothing more.

   Having been granted permission to act in this arena, the Legislature opted to mandate that local school boards --  through property taxes -- be required to provide transportation for any child residing more than 2.5 miles from his or her school, regardless of whether that child attends a public or private school.  This mandate had always been funded, at least in part, by the State, until last school year.  It is currently an unfunded mandate for many school districts, including Springfield.  It does not fall within the exemption for those statutes "which implement the provisions of this Constitution" because it does not implement a provision of the Constitution.  There is no constitutional quagmire in this case because the Transportation Clause merely put to rest the argument as to whether the First Amendment prohibited providing transportation for children to parochial schools.  The Transportation Clause does not require any action by the Legislature; it does not require local taxpayers to bear the burden of subsidizing private school choice.  Indeed, the Transportation Clause is unlike virtually any other clause in the Constitution in this respect.  The DOE's argument would be equally inapplicable to those clauses that can be said to be similiar.  By way of example, Article IV, Section VII, Paragraph 2(c), provides that the Legislature may authorize the conduct of State lotteries.  It does not provide that the Legislature must do anythin with regard to lotteries.  Under the DOE's logic, if the Legislature were to authorize State lotteries and require, without funding, that municipalities build booths to sell lottery tickets, man those booths with municipal employees, and pay for the production costs to cover the tickets they sell, this would not be an unfunded mandate under the Constitution.  However, it is inconceivable that when the Constitution was amended to prohibit unfunded mandates it was not intended to cover such a mandate.

    The statue challenged herein does not implement a provision of the Constitution, as the Legislature is not required by the Transportation Clause to take any action, nor is it required to provide any transportation for any school children.  The constitutional amendment prohibiting unfunded mandates should be liberally construed to capture the intent of the amendment -- to control rising property taxes in New Jersey and to keep the State Legislature from passing the buck, so to speak, to local boards and municipalities.  If, as the Constitution permits, the State wants to provide free public transportation for students to private schools, it can provide for such transportation.  But the State cannot abandon its annual practice of paying for a portion of that transportation and instead dump the cost of such transportation on local boards of education.

   Finally, the Transportation Clause permits the Legislature to provide "transportation."  However, the statute at issue has, over time, morphed into a subsidy for private school choice, and not a transportation requirement at all.  Indeed, the challenged statute requires that -- regardless of whether a student actually needs and/or wants transportation -- the local school board must pay the parent an amount currently set at $884.00.  There is no requirement that these monies that these monies be used for transportation.  It is a subsidy, plain and simple.  Until recently, the State provided funds to help boards of education make such subsidy payments.  The issue here is whether the State can cease to provide those funds while maintaining the same mandate.

   For the reasons set forth above, the Council on Local Mandates should deny the DOE's belated supplemental submission seeking to dismiss the Board's Complaint.

The above is a quotation from the Claimant's Letter Brief in Opposition to the Respondent's supplemental brief filed by Vito A. Gagliardi, Jr., on behalf of the Board of Education on September 22, 2011.

Claimant's response to request to appear as amicus curiae by the NJ Network of Catholic School Families:

   "We write in response to an October 6, 2011 e-mail from the Council advising of the decision to permit the New Jersey Network of Catholic School Families (the "Network") and the New Jersey Catholic Conference (the "Conference") to appear as amicus curiae in this matter.  Please accept this letter as the Board's objection to those appearances.

   Initially, we note that the October 6, 2011 e-mail from Mr. Slaughter announcing the Council's decision was the first the Board heard of any amicus request by the Network or the Conference.  Although the Council apparently received and October 5, 2011 letter from Mary T. McElroy requesting permission for the Network and the Conference to appear, the Board was not copied on that letter, and no copy was circulated to the Board by the Council.  As such, the Board was given no opportunity to respond to the request prior to the Council voting to allow the appearance.  Even the most rudimentary due process dictates that the Board should have recieved notice of the request to appear and an opportunity to be heard on the matter.  Indeed, Rule 7(d) of the Council's Rules of Procedure explicitly requires that any request to appear as amicus curiae be served on all parties.  We object to this violation of the Board's due process rights.

   Beyond this procedural violation, the request by the Network and the Conference to appear as amici is tragically belated.  The Board filed its complaint with the Council on March 28, 2011.  By letter dated April 8, 2011, the Council set various deadlines for responsive pleadings and other filings.  The Council explicitly set June 6, 2011 as the deadline "for any group or individual to file a Request to Appear as amicus curiae in this matter."  (See Exhibit A.)  Ms. McElroy's request was not recieved until four months after this Council-imposed deadline.  Ms. McElroy has been following the Board's challenge to aid-in-lieu mandate since even befoe it filed an official complaint with the Council, as Ms. McElroy addressed the Board on this issue at public meetings as early as March 1, 2011.  In addition, Ms. McElroy was in attendance at the August 4, 2011 oral argument before the Council on the State's motion to dismiss the Board's complaint.  Though a request to appear as amici in August would still have been overdue, the Board at least would have had a fair opportunity to respond to the merits of any brief filed by the Network and the Conference.  Instead, in a blatant attempt to thwart the Board's ability to respond, Ms. McElroy waited until less than two weeks before the scheduled hearing in this matter to request appearance on behalf of the Network and the Conference.  Such tactics should not be condoned by the Council.

   The appearance of the Network and the Conference as amici at this juncture would be inappropriate and inequitable.  Should the Council ignore the Board's objections and permit those appearances, however, no individual representing the Network or the Conference should be permitted to participate in the October 18 hearing, given the extremely belated entrée of those organizations in this matter.  In addition, the Board requests leave to respond to the amici brief prior to the hearing."

The above is a quotation from the Claimant's Letter Brief in response to the Request to Appear as Amicus Curiae from the New Jersey Network of Catholic School Families and the New Jersey Catholic Conference filed by Vito A. Gagliardi, Jr., on behalf of the Board of Education on October 7, 2011.

Amicus Letter brief submitted by the New Jersey Network of Catholic School Families:

       "Please accept this letter brief on behalf of the below signatories, parents, families, administrators, and other stakeholders in the nonpublic schools of New Jersey, collectively referred to as ("the stakeholders").  The stakeholders are those directly affected by the above-captioned matter before the Council on Local Mandates. We submit this letter brief in support of the State's position that Aid-in-Lieu is not an unfunded mandate, and is due and payable to eligible parents pursuant to N.J.S.A. Section 18:39A-1. In addition, we seek to advance the case of the affected Springfield parents and all other eligible families similarly situated that will be adversely impacted by an outcome of this case favorable to the Springfield Board of Education (hereinafter "the BOE"). 

 Background

     Nonpublic school students living two miles from their school (elementary school aged) and two and one-half miles away from their school (for secondary school aged) in a district where the local board of education transports public school students living the same distance from their public school, are eligible for transportation to their school, or if a route cannot be organized to transport them to and from school, their families are to receive Aid-in-Lieu payments (hereinafter "AIL"), at the statutory amount of $884. N.J.S.A. 18A:39-1.  Boards of Education are required by law to put a route out to bid for the transportation of nonpublic school students to their school, and if unsuccessful, to then turn the route over to a Coordinated Transportation Services Association (CTSA) for purposes of rebidding the route to increase students' chances of obtaining a seat on a bus to school.  Parents have no control over this process.  The district does not consult them regarding where bus stops could be located or seek any information regarding start/end times for the nonpublic school, information which would help the BOE craft a successful bid. Parents have no alternative but to rely on the BOE's representation that they put the matter out for a bid and were unsuccessful. 

     In Springfield, the BOE sends eligible parents a letter every August, indicating that they turned the bidding process over to the Union County Commission, and that the Commission was unable to secure a route.  The BOE tells parents that in the alternative, if they meet the eligibility requirements per N.J.S.A. 18A:39-1 they will receive AIL in two installments, totaling $884, the statutory amount. 

     Parents are then left to obtain transportation for their children however they are able to and are responsible for the full amount of those arrangements, which routinely exceeds the statutory amount of $884.  Parents are at the mercy of private bus contractors who are free to literally charge whatever the traffic will bear.  This is not the same for transportation of eligible public school students, who are not subject to price-gouging and the uncertainty and hardship of routes being cancelled at the start of the school year.

     In the beginning of August 2010, the BOE notified all eligible parents that it had not secured transportation for them and that accordingly, they would receive AIL payments twice during the school year.  (See Exhibit A - Parent AIL Letter dated August 2010).  In reliance on this notification, parents made arrangements for their children to be transported to and from school.  When February 2011 arrived, parents did not receive the first installment of AIL ($442).  The BOE did not notify parents that the payments would not be made, and when parents called the BOE to inquire about payments, they were read a statement citing budget cuts but would not be given a copy of the statement when they asked for one.  The February AIL payment was not made until Memorial Day Weekend, late May 2011, and was made in response to the directive of the State Commissioner of Education that Springfield make the AIL payment or forfeit all state aid. (See Exhibit B - Letter from Cerf to Davino dated 3/25/11).

     During this time, parents were expected to make payments for the transportation of their children to nonpublic school.  In good-faith reliance on the BOE's August 2010 representation that it would make AIL payments for the 2010-2011 school year, parents had already entered into private transportation arrangements.  Parent payments for private transportation were due and owing obligations. At no time did Springfield suspend bus service for its eligible public school students. 

Parents Have the Fundamental Right to Direct the Education of Their Children

     This is a well-settled principal of law which is not counter to and in fact, complements governmental interest in delivery of education services. Pierce v. Society of Sisters, 268 U.S. 370 (1925).  The eligible nonpublic school parents in Springfield are capable of making sound educational decisions for their children, and transporting their children is key to that decision.  In its arbitrary action to withhold AIL, the BOE is actively frustrating parents' ability to make basic educational decisions for their children.  It is telling that the BOE did not stop ALL transportation services in Springfield.  Rather, the BOE actively transported all eligible public school students, with the then President of the BOE stating at a regularly scheduled meeting of the BOE that "no transportation services were disrupted for our students." (www.springfieldpublicschools.com Board Agenda, Minutes & Videos, 3/11) It is curious that the BOE determined AIL is an "unfunded mandate," but retained public school transportation services, so as not to disrupt traveling to and from school for parents of public school students.

 The NJ Constitution Confers Responsibility on the BOE for Nonpublic School Transportation

     N.J. Const., Art. VIII, Sec. II, Para. 5; and Art. VIII, Sec. IV, Para. 3 speak to the basic right of nonpublic school students to transportation to and from the school of their choice, which furthers governmental interest in education of its youngest residents.   The language of the Article and the statements of the 1947 Constitutional Convention support this purpose and make it clear that it is the responsibility of the local district to provide transportation.  Further, the Everson case, Everson v. Bd. Of Educ. Of Ewing Twp., 330 U.S. 1 (1947) is dispositive on this issue. 

Everson  and the constitutional provision establish the responsibility for implementing nonpublic school transportation or aid for same long before the Constitutional amendment instituting state mandate/state pay. N.J.S.A. 52:13H-12.  We support and urge the Council to accept Respondent's assertion that Everson demonstrates that the nonpublic transportation statute implements the Article of the Constitution conferring the parental right to transportation or aid therefore and the local district's obligation for same.  This issue is not one of state mandate/state pay and is not properly before the Council on Local Mandates.

BOE Does Not Administer AIL as Merely a "Pass-Through" of Funding

     In regard to the use of federal education dollars, the local school district is the conduit of funds to nonpublic school students for services.  This is seen most readily in federal programs administered by local districts pursuant to No Child Left Behind (NCLB).  An example of this is seen in Title I, the federal anti-poverty program.  Districts are charged with collecting data on poverty areas within their districts.  This also includes any nonpublic schools within the district, and lead administrators of these schools report this information as well.  Title I dollars are distributed to districts according to poverty levels, and the district distributes those funds on behalf of all Title I eligible students, wherever situate within the district. See Title I of the Elementary and Secondary Education Act of 1965 (ESEA).  Federal aid to nonpublic school students who are classified as in need of special education services is handled much the same way pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA).  All resident students of a school district between the ages of 3 -21 years -no matter where they attend school - who are classified as in need of special education services, generate federal special education dollars.  Under the federal law, the funding is distributed to students throughout the district, even if those students attend a nonpublic school within the district.  See IDEIA.

     The AIL, and indeed the entire transportation statute is not the "pass-through" of funding that the BOE would like the Council to believe.  It is a statutory obligation irrespective of any funds in the state budget for education.  That the state has in previous years allocated some funds to non-specified transportation is at best a windfall for the district.

The BOE's Action in Refusing to Pay AIL and Seeking to Avoid Statutory Obligation to Pay AIL to Nonpublic School Parents is Discriminatory

       It is disingenuous for the BOE to point to transportation as a pass-through funding, especially when they did not seek to cut transportation services altogether when they experienced an overall diminution in state funding in FY2010.  Just as parents cannot refuse to pay their school taxes in the amount of AIL, citing a cut in their education monies by the BOE's refusal to pay that amount, neither can the BOE pass on an unfortunate pay cut to parents.  Further, the BOE's uneven, arbitrary, and capricious compliance with NJSA 18A:39.1 et seq., is discriminatory to eligible parents.  The BOE's action has in effect, created a separate class of eligible parents, unfairly treated simply because their children attend a nonpublic school.  Residency within district is the same, eligibility of mileage is the same, need for transportation to and from school is the same, the only difference here is that the affected students are nonpublic school students.  The BOE has created an artificial distinction among all eligible parents which results in overt discrimination against nonpublic school students.  By the BOE's own admission, no public school student's bus ride to school was unfunded by the BOE after loss of some state aid. No public school parent eligible for transportation was faced with elimination of this basic service, intrinsic to a child's very attendance at school, and left to scramble for ways to fund their children's ride to school after the BOE refused to pay for such service.  In effect, the BOE has set up eligible public school parents as a protected class, where none should exist. 

 Nonpublic School Parents Are Economically Harmed by the BOE's Attempt to Circumvent Their AIL Obligation

     Parents of nonpublic school students have the same struggles that all parents have in NJ's current economy.  In fact, these parents pay a tremendous premium in terms of local school taxes and tuition costs for their children to attend nonpublic schools.  To assume all parents can easily afford this choice is inaccurate.  A great many parents struggle to send their children to nonpublic schools, all for reasons that are valid and important to their families.  A number of the students attending the nonpublic schools in the greater Springfield area and beyond, do so thanks to scholarship assistance  from the Scholarship Fund for Inner-City Children, which awards scholarships for families residing and attending Catholic schools within Bergen, Essex, Hudson, and Union Counties, and not only in struggling urban areas.  See www.sficnj.org 

     The AIL payments received by parents are not "a convenience" as has been posited by the BOE in proceedings before this Council (Response of Complainant to Council question at August 4, 2011 hearing In Re Springfield BOE, 3-11), but make it possible for parents to transport their children to school.  Especially in families with more than one school-aged child, it is a daily challenge to drop off and pick up all the children in one family.  While the public schools in Springfield all have staggered start and ending times that take into account travelling from different school sites and locations within the township, a similar configuration is not possible to arrange for the various nonpublic schools.  Without reliable transportation for their children, parents of nonpublic school students are faced with real difficulties in getting their children to and from school.  This happens already when unforeseen issues crop up with current bussing arrangements.  Having to deal with transportation issues on a regular basis would wreak havoc with parent work obligations and be seriously disruptive to family schedules, in addition to the cost of transportation which would make travel to and from the nonpublic school prohibitive. 

 An Influx of Students to Their Local Public Schools Would Create an Economic Hardship to the Taxpayers of Springfield and Municipalities Throughout the State

      Nonpublic schools are educational partners in the raising of productive citizens and parents' ability to choose them should not be frustrated by a local government unit, especially a board of education.  The BOE reports that its 2009-2010 costs amount per pupil is $17,168.  See, Taxpayers Guide to Education Spending May 2011, www.state.nj.us/njded/guide.  If the 144 nonpublic school students receiving AIL or mandated transportation (NJDOE Office of Pupil Transportation) were enrolled in the Township's public schools, the cost to Springfield taxpayers would be approximately $2,472,192.  This has direct impact on the BOE and will affect class size, staffing, school buildings and ingress and egress through town during peak times of arrival and dismissal for students.  Currently, the Township of Springfield is witnessing the building of a number of new residential developments which are poised to strain the resources of the BOE, particularly since at least one of the communities is rental in nature.

     Multiply this many, many times over throughout New Jersey, where nonpublic schools students and their families save the state significant funds through their choice of a nonpublic schools.  Sustained economic difficulties encountered by NJ families have led to a downtown in nonpublic school enrollment, and in the five years between 2004 and 2009 a loss of enrollment of 29,810 nonpublic school students occurred.  With most of those students entering the public schools, it was calculated that this influx of students cost the public school system approximately $430 million a year in increased expenses. See The Governor's Study Commission on New Jersey's Nonpublic Schools (2010) http://nj.gov/governor/news/reports/pdf/20100720_np_schools.pdf

     The New Jersey Association of Independent Schools ( hereinafter "NJAIS"), a signatory to this amicus letter brief, has detailed the difficulties their parents would face with the elimination of AIL, explaining that access to safe and affordable direct transportation to and from school for their children is a deciding factor in parents' choice of a nonpublic school. If nonpublic school transportation aid is no longer available, enrollment in nonpublic schools most likely will decrease, resulting in a loss of diversity of services and programs offered by the schools represented by NJAIS. See, Letter from Everett, NJAIS to Council on Local Mandates, 10/13/11) 

 A Ruling in Favor of the BOE Would Be a Stripping Away of

All Transportation for Nonpublic School Students and an

 Opening of the Door to the Erosion of All Nonpublic Services

      The BOE's complaint, if successful, will open the door to the stripping away of all transportation pursuant to N.J.S.A. 18:39A for nonpublic school students.  Today the complaint is regarding AIL; tomorrow it will be about funding the actual bus that transports nonpublic students.  This is the wrong result and would be in violation of the right to transportation conferred on parents by the NJ Constitution and implemented by the statute under consideration in this proceeding. 

     In seizing on a claim of an unfunded mandate, the BOE is attempting to remove itself from any and all obligation to nonpublic school students resident within the district.  Subsequently, the BOE will argue that it does not have to provide nursing services, textbook aid, special education and related services which are all protected by statute.  The BOE cannot set their sights for these as unfunded mandates and seek their elimination.  To do so would be tantamount to refusing to fund educational media services, or teacher benefits, or debt service; in short, everything would become an "unfunded mandate" whenever there is a fluctuation in the state budget.

Conclusion

     AIL and nonpublic school transportation are vital services relied upon in good faith by nonpublic school students and their families.  Provision of AIL by the BOE is not an unfunded mandate. For the Council to assert jurisdiction and to then rule in favor of the BOE Complainant would have significantly damaging and far-reaching repercussions not only for the residents of Springfield, but for all nonpublic school parents throughout New Jersey. A decision favorable to the BOE would signal the erosion of nonpublic school services, which would result in increased enrollment and therefore  critical strain on the public schools of municipalities statewide.

      The undersigned, on behalf of the NJ Network of Catholic School Families joins with the signatories to this letter brief, known as the nonpublic school community for the purpose of this amicus filing, and together, we urge the Council on Local Mandates to rule in favor of Respondent in this matter."

New Jersey Network of Catholic School Families

By:  Mary McManus McElroy, J.D.

Dr. Tom Cathey, Association of Christian Schools International

Meir Brody, Agudath Israel-NJ

George V. Corwell, Ed.D., New Jersey Catholic Conference

Carole Everett, New Jersey Association of Independent Schools

Batya Jacob, Yeshiva Day Schools

Janet Nazif, Noor-Ul-Iman School

Josh Pruzansky, New Jersey Orthodox Union

Donald Netz, Garden State Association of Christian Schools

Sadriel Saint-Ulysse, NJ Conference of Seventh Day Adventist Schools

Jacob Toporek, NJ State Association of Jewish Federations

The above Amicus letter brief, exhibits and certification of service was submitted by Mary T. McElroy, Director, on behalf of the New Jersey Network of Catholic School Families on October 13, 2011.

Amicus Letter Brief from the New Jersey Association of Independent Schools re Springfield Board of Education Aid-in-lieu issue:

"This correspondence comes to you on behalf of the New Jersey Association of Independent Schools (NJAIS) regarding the above-referenced matter.  We expect to join in the arguments of the amicus brief filed on behalf of nonpublic schools, once we have an opportunity to review it.  In the meantime, we feel it is vitally important that the Council be made fully aware of the devastating impact that a declaration that N.J.S.A. 18A:39-1 is an unfunded mandate would have on New Jersey's network of independent/private schools and the families of our students.

NJAIS is a non-profit, voluntary membership association whose mission is to foster the educational, ethical, and professional excellence of its member schools, while safeguarding their independence.  We represent 74, private, independent, non-profit schools across the State.  Our schools educate over 27,000 students and offer families a range of educational options: coeducation or single sex; religious affiliation or nonsectarian; preschool, elementary, or secondary; day or boarding.

It is our understanding that the issue of whether N.J.S.A. 18A:39-1 constitutes an unfunded mandate is currently scheduled to be heard by the Council on October 18, 2011.  If the Council were to determine that this statutory provision constitutes an unfunded mandate, the consequences will be severe for our member schools, their students, and their parents.

The aid-in-lieu of transportation that is provided to our students under N.J.S.A. 18A:39-1 is often a deciding factor in a parent's decision whether they are able to send their child to a private school.  If parents are no longer able to rely on this payment, enrollment at the independent schools that we represent will likely decrease.  Moreover, if enrollment declines, many of our schools will no longer be able to offer the diversity of services and programs that they pride themselves on.  Some schools may even be forced to close, thereby displacing our students, faculty, and staff members.  In addition, there would likely be a negative impact on public schools, as well.  If parents are no longer able to send their children to independent schools, there could be an increase in enrollment in public schools, resulting in increased costs and class sizes.  Nonpublic school parents, who pay taxes to their local municipalities, save the state significant funds through their choice of an independent school.

Furthermore, this decision will adversely impact the school choice movement and education reform that the New Jersey Department of Education, Governor Christie, and the Legislature have worked towards implementing and fostering across the State.  Parents may no longer be as willing to explore other school options.

Finally, the elimination of aid-in-lieu of transportation would result in other unintended consequences.  The safety of children would be compromised by the elimination of busing and a resulting increase in the need for private transportation.  The students may suffer by having their education interrupted as they are forced to change schools.  There could even be an increase in bullying as a child may have to make new friends and deal with feelings of insecurity.

As you can see, the implications of determining that N.J.S.A. 18A:39-1 is an unfunded mandate is not an isolated one.  It is a decision which will impact every aspect of nonpublic schooling, our students and their parents throughout the State.  We urge the Council not to pull the rug out from under us.  N.J.S.A. 18A:39-1 should not be disturbed."

The above Amicus letter brief is a quotation submitted by Carole J. Everett, Executive Director, on behalf of the New Jersey Association of Independent Schools on October 14, 2011.

Claimant's letter brief in response to the Amici letter brief on behalf of the New Jersey Network of Catholic Schools and the New Jersey Catholic Conference:

 "As you know, we are counsel to the Springfield Board of Education (the "Board") in the above matter.  Please accept this letter brief in response to the October 13, 2011 letter brief on behalf of the New Jersey Network of Catholic School Families and the New Jersey Catholic Conference, amici in this matter (the "amici"). 

I.  THE BOARD OBJECTS TO THE VIOLATIONS OF ITS DUE PROCESS RIGHTS IN CONNECTION WITH THE APPEARANCE OF THE AMICI.

   In furtherance of its October 7, 2011 letter to the Council, the Board must again emphasize its objection to the appearance of the amici in this matter.  Contrary to the mandate of Rule 7(d) of the Council's Rules of Procedure, and tenets of basic due process, the Board was not copied on the amici's October 5, 2011 request to appear in this matter, nor was any copy of the request circulated by the Council prior to the Council's vote to allow the appearance.  More troubling still, based upon the reference in the amici brief to an October 13, 2011 letter from NJAIS to the Council, it appears that there is at least one other document submitted to the Council which the Board has not been given the opportunity to review.  Understanding that the Council is not a judicial body, the Board should still have the benefit of reviewing a copy of any papers the Council has received in connection with any submissions by parties or amici in this case.  These ex-parte communications with the Council violate the most basic principles of fairness and due process, as well as the Council's own Rules of Procedure.

   In addition, permitting the appearance of the amici a mere two weeks before the hearing in this matter -- which has been scheduled for more than ten weeks -- contravenes the Council's own deadline of June 6, 2011 for the appearance of amici. 

   The Board objects to these procedural violations and the appearance of the amici in this matter.

II.  THE NEW JERSEY CONSTITUTION DOES NOT MANDATE TRANSPORTATION OF STUDENTS.

            With regard to the substance of the amici brief, the Board is compelled initially to dispel the erroneous notion, raised several times in the brief, that the New Jersey Constitution requires school districts to transport students.  This is simply not the case. 

            The amici's interpretation of art. VIII, § 2, ¶ 5 and art. VIII, § 4, ¶ 3 of the New Jersey Constitution is misguided.  The first provision has nothing to do with transportation.  Rather, it creates the Council on Local Mandates and outlines the parameters of the Council's jurisdiction.  The second provision (the "Transportation Clause") states that, "[t]he Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school." (Emphasis supplied).  This provision permits, but does not require, the Legislature to provide for transportation to and from school.  Given the permissive language, this provision simply cannot be reasonably interpreted to mandate anything.

            Without actually citing to any statement, the amici abstractly assert that "statements" made at the 1947 Constitutional Convention "make clear that it is the responsibility of the local district to provide transportation."  An examination of the actual statements made with regard to the Transportation Clause, however, illuminates that this is completely inaccurate.  Indeed, discussions among the delegates at the Convention explicitly acknowledged the permissive, as opposed to mandatory, nature of the Transportation Clause.  In considering the Transportation Clause, one delegate explicitly noted "that that proposal is permissive.  The Legislature may do something.  It permits the Legislature to do what the Legislature has already asserted that it had the right and power to do. . . In other words, if the Legislature in its wisdom does not see fit to enact legislation such as is proposed here, or, to turn it around, sees fit to repeal the present legislation, this clause leaves it perfectly free to do so. . . ."  Another delegate clarified that, "this merely eliminates the danger that in the future a judicial interpretation in this State may find that granting little children the right to ride on a bus to school will be held contrary to our State Constitution.  That's all it does.  It doesn't go beyond that either." N.J. Constitutional Convention, Vol. 1, p. 718 (August 21, 1947). 

   The discussion during the Convention made it clear: the Transportation Clause was included in the 1947 Constitution for the sole purpose of ending the debate as to whether public funding for transportation to and from private or parochial schools offended the First Amendment of the Constitution.  It provides nothing more, and it certainly does not require school districts to transport either public school or non-public school students.  The amici's contention that the Constitution "confers responsibility" on a local board of education to provide for non-public school transportation has no basis in reality.

III.  THE CONSTITUTIONAL DIRECTIVE OF "STATE MANDATE/STATE PAY" NECESSARILY CREATES A LINK BETWEEN THE MANDATE TO PROVIDE TRANSPORTATION TO NON-PUBLIC SCHOOL STUDENTS AND A SCHOOL DISTRICT'S RECEIPT OF STATE FUNDS FOR TRANSPORTATION.

            The amici curiously contend that the mandate to pay aid in lieu of transportation is "a statutory obligation irrespective of any funds in the state budget for education."  But that argument wholly ignores the constitutional directive of State mandate/State pay and the reasons for creation of the Council on Local Mandates in the first instance.

            The New Jersey Constitution defines an unfunded mandate as a law, rule or regulation that "does not authorize resources, other than the property tax, to offset the additional direct expenditures required for the implementation of the law or rule or regulation."  N.J. Const. of 1947, art. VIII, § 2 (1996).  Indeed, the notion of State mandate/State pay, which the Council has repeatedly recognized in its decisions, necessarily creates a link between a school district's receipt of State funds and the mandate to provide transportation or aid in lieu of transportation to non-public school students. 

   The assertion by the amici that the receipt of State funds in past years has been "a windfall" for school districts that are required by State law to transport students is preposterous.  In essence, the amici suggest that there is no such thing as an unconstitutional unfunded mandate because, regardless of the explicit language of the Constitution and a body of case law by the Council on Local Mandates to the contrary, a local governmental body is required to pay for anything and everything a law or regulation requires, even when it receives no resources from the State to do so.  This is incorrect.

   The amici's argument regarding federal funding pursuant to No Child Left Behind ("NCLB") and the Individuals with Disabilities Education Improvement Act ("IDEA") is similarly befuddling.  The present matter before the Council has absolutely nothing to do with federal education dollars.  Federal law and federal dollars are not, and have never been, at issue here. Moreover, the Board has never made the argument, in any of its filings with the Council, that funding for aid in lieu of transportation is a "pass-through." 

IV.  THE BOARD'S CHALLENGE TO THE AID IN LIEU MANDATE IS NOT DISCRIMINATORY.

   The amici assert that the Board's challenge to its transportation obligations to non-public school students while it still provides transportation to public school students is "discriminatory."  They allege that the Board is creating an "artificial distinction" between students based on nothing more than the fact that one group of students attends the Springfield public schools and another group does not. 

   The "distinction" between public and non-public school students with regard to the provision of transportation by a public school district is not discriminatory.  Neither is the Board "creating" that distinction.  To the contrary, the Legislature itself created that distinction when it drafted and enacted N.J.S.A. 18A:39-1, which sets forth -- in two completely separate paragraphs -- a board of education's transportation responsibilities for public school students on the one hand, and non-public school students on the other.  Those responsibilities are not, and have never been, identical.  A local board of education is required to provide transportation to students who live more than two miles (elementary students) or two and a half miles (secondary students) from their public school of attendance -- regardless of cost.  With regard to non-public school students, a district is required to provide transportation within the same distance limitations but, if it cannot do so for the statutory cap amount or less, it must write a check to the non-public school families in the amount of the cap. 

   It is unsurprising that State law treats public and non-public school students differently in certain respects.  Naturally, boards of education provide many services to students who attend their public schools that they are not required to provide to non-public school students -- based entirely on the fact that non-public school students have chosen not to avail themselves of the free education the districts offer.  By way of example, non-public school students residing in Springfield are not entitled to participate in Springfield's music and athletic programs.  This makes perfect sense -- it is not an "artificial distinction."  Those students do not attend Springfield public schools.  This differential treatment is not discriminatory.

   Though the amici do not acknowledge the difficulties of the current economic climate for local boards of education, it is clear that the last several years have presented serious challenges for school boards, as they endeavor to provide those services that are statutorily mandated while, at the same time, remaining mindful of the financial struggles of their local taxpayers.  The Board has been forthright from the start that, in examining all of its expenses with great scrutiny, it took a careful look at those expenses that require it to spend money on students who are not enrolled in the Springfield schools.  Indeed, one hundred percent of the burden of complying with the State's, as well as the Constitution's, mandates have fallen on the shoulders of the taxpayers of Springfield for the last two years.  As such, it elected to appeal the Department of Education's determination that the Board must transport or pay aid in lieu to non-public school students, although it no longer receives State aid, through a lawful channel made available to it by the New Jersey Constitution -- the Council on Local Mandates. 

V.  THAT NON-PUBLIC SCHOOL PARENTS MAY BE "ECONOMICALLY HARMED" BY A RULING IN THE BOARD'S FAVOR AND THE EFFECT OF AN INFLUX OF STUDENTS TO THE SCHOOL DISTRICT ARE COMPLETELY IRRELEVANT TO A DETERMINATION OF WHETHER THE AID IN LIEU MANDATE IS AN UNCONSTITUTIONAL UNFUNDED MANDATE.

   Predictably, the amici argue that a ruling in the Board's favor will "economically harm" non-public school families who rely on the $884 per student to make transportation arrangements for their children.  They contend that if aid in lieu of transportation is no longer available, enrollment in non-public schools will decrease, and an influx of students to the district's public schools will harm Springfield taxpayers and the Board through an increase in class size and space and staffing needs. 

   These arguments are both highly speculative and completely irrelevant to a determination of whether the non-public school transportation mandate is an unconstitutional unfunded mandate -- the sole issue before the Council.  While the Board does not suggest the Council cannot be concerned with the consequences of any decision it may make, the Constitution is clear: if a law, rule or regulation is determined by the Council to be an unfunded mandate, it "shall . . . cease to be mandatory in its effect and expire."  The focus here is on whether local taxpayers are being forced to bear the burden of an unconstitutional mandate by the State.  This challenge is not, and has never been, about the non-public school families.  Similarly, it is not about the effect that an "influx" of students might have on the Board.  The Board is obligated under the law to provide all resident students who attend Springfield public schools with a free and appropriate public education.  If the effect of cessation of the non-public school transportation obligation is that additional students enroll in the Springfield public schools, the Board will provide the same quality education to those students.  This is simply not before the Council. 

            Of course, if the State is persuaded that this is a legitimate concern, it can solve the problem -- it can require the transportation funding at issue.

             VI.       THE RELIEF THE BOARD SEEKS IS NARROW.

   The amici appear to believe that the Board is challenging only the obligation to provide aid in lieu of transportation to non-public school students, but not the obligation to provide transportation itself, if such transportation can be accomplished for under the cap amount.  This is not the case.  The Board is challenging, as a whole, its transportation obligations to non-public school students -- including transportation and aid in lieu.[1]  The relief the Board seeks is actually quite narrow.  The Board is requesting that the Council strike down only the portion of N.J.S.A. 18A:39-1 that requires a local board of education, notwithstanding a lack of funding from the State, to provide transportation or aid in lieu of transportation to non-public school students -- leaving the decision whether to do so in the capable hands of local boards of education.  Contrary to the doomsday scenario posited by the amici, the instant challenge has never had any relation to "nursing services, textbook aid, special education," or "educational media services, or teacher benefits, or debt service," which the amici inexplicably claim will be next to go if the Board's challenge is successful.  The Board's challenge falls squarely, and only, on the requirement that it provide transportation or aid in lieu to non-public school families.

 [1] It is worth noting that, as transportation costs continue to rise, it has become increasingly difficult in recent years for the Board to provide bussing to non-public school students for the cap amount or less.  As such, the practical effect of a ruling in the Board's favor will center almost entirely on the payment of aid in lieu of transportation. 

The above is a quotation from the Claimant's Letter Brief in Opposition to the Request to Appear as Amicus Curiae from the New Jersey Network of Catholic School Families and the New Jersey Catholic Conference filed by Vito A. Gagliardi, Jr., on behalf of the Springfield Board of Education on October 16, 2011.