In re Complaint filed by Rockaway Township (3-15)(Docket #: COLM-0001-15)
PROCEDURAL HISTORY
Complaint filed. On March 30, 2015, via email, a Complaint was filed by Board Counsel Nathanya G. Simon, Esq., on behalf of the Rockaway Township Board of Education, in which it is alleged that N.J.A.C. 6A:8-3.1, requires district boards of education "to ensure that appropriate instructional adaptations are designed and delivered...for students who are gifted and talented." N.J.A.C. 6A:8-3.1(a). "Gifted and talented students' means students who possess or demonstrate high levels of ability in one or more content areas when compared to their chronological peers in the local school district and who require modifications of their educational program if they are to achieve in accordance with their capabilities." N.J.A.C. 6A:8-1.3. School boards must identify gifted and talented students and provide them with appropriate instructional adaptions and services. N.J.A.C. 6A:8-3.1(a)(5). The identification process must be ongoing between kindergarten and 12th grade and be based on multiple measures. N.J.A.C. 6A:8-3.1(a)(5)(ii). This regulatory mandate requires the Board to implement a specialized program for the education of certain students without authorizing any resources to offset the additional direct expenditures to implement the program. A summary of the Rockaway Township Complaint may be viewed under Pleading Summaries.
To view the full version of the Rockaway Township 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, the Department of Education, 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 June 8, 2015, the Complaint was circulated to the above-mentioned officials, and the letter also provides a schedule of due dates for filings of pleadings, including:
- Claimant and Respondent opportunity to serve interrogatories (July 1, 2015).
- Claimant and Respondent Answer(s) directed to the Complaint (July 31, 2015).
- Claimant and Respondent Cross-Motion(s) for Summary Decisions directed to the Complaint (August 31, 2015).
- Claimant and Respondent response(s) to such Motions (September 30, 2015).
By email of July 28, 2015, the Council informed all interested parties that the schedule of due dates for filings of pleadings had been revised, to reflect the following dates:
- Claimant and Respondent Answer(s) directed to the Complaint (August 31, 2015).
- Claimant and Respondent Cross-Motion(s) for Summary Decisions directed to the Complaint (September 30, 2015).
- Claimant and Respondent response(s) to such Motions (October 30, 2015).
Respondent's Answer and Motion to Dismiss. On May 18, 2015, an Answer and a Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Education, via hand-delivery. 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.
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 Rockaway Township Board of Education's Summary of Complaint:
In the instant Complaint, the Board is challenging the NJDOE's regulation requiring local school districts to established a gifted and talented program, N.J.A.C. 6A:8-3.1, as that regulation constitutes an unfunded mandate. Specifically, the regulation states that "district boards of education shall be responsible for identifying gifted and talented students and shall provide them with appropriate instructional adaptations and services." N.J.A.C. 6A:8-3.1(a). ‘"Gifted and talented students' means students who possess or demonstrate high levels of ability in one or more content areas when compared to their chronological peers in the local school district and who require modifications of their educational program if they are to achieve in accordance with their capabilities." N.J.A.C. 6A:8-1.3.
New Jersey School districts must identify gifted and talented students and provide them with appropriate instructional adaptations and services. N.J.A.C. 6A:8-3.1(a)(5). The identification process must be ongoing between kindergarten and 12th grade and be based on multiple measures. N.J.A.C. 6A:8-3.1(a)(5)(i); N.J. Department of Education ("DOE") FAQ, Gifted and Talented Programs. http://www.state.nj.us/education/genfo/faq/faq_gandt.htm. The NJ DOE has generally advised that "multiple measures" include achievement test scores, grades, intelligence testing, parent/student/teacher recommendation, and that any such methodology be developmentally appropriate, nondiscriminatory, and related to the program and services offered. NJ DOE FAQ #3.
School districts are also required to provide appropriate educational services for gifted and talented students from kindergarten through 12th grade, including curricular modifications to content and process, specific products or a separate learning environment for eligible students. Id. At 9., N.J.A.C. 6A:8-3.1(a)(5)(ii). Separate learning environments may include pull-out programs, classroom-based differentiated instruction, acceleration, flexible pacing advanced classes or individualized programs. Id. At 10.
Despite these requirements, the State does not provide dedicated funding for districts to identify gifted and talented students, including the performance of additional achievement and/or intelligence testing, or for any methodology utilized. Nor is funding provided to design and deliver the requisite appropriate services to eligible gifted and talented programs utilizing monies obtained through the local property tax or other local revenues, or leftover state aid.
The aforementioned gifted and talented program requirements impose a substantial financial burden on the Board, and all school districts in the State, without any specific funding provided to offset those local expenditures. For example, based upon documentation provided in the Complaint, the Board estimates annual expenditures of approximately $89,361.19 to implement its gifted and talented program for the 2014-2015 school year, and moving forward. This includes identification/assessment expenses salary and benefits for an appropriately certificated teacher to provide gifted and talented instruction, professional development expenses, and additional costs related to materials and programs to be provided to gifted and talented students.
As set forth more fully above, there is no dedicated funding provided to offset these costs, and the Board is in turn forced to enact local measures in order to comply with the regulation. The lack of State funding to pay for or reimburse local school boards for the significant direct expenditures required to implement a gifted and talented program under N.J.A.C. 6A:8-3.1 results in that rule constituting an unfunded mandate under N.J.S.A. 52:13H-2 and N.J. Const. Art. VIII Sec. 2, Par. 5. Therefore, we respectfully request that the Council find N.J.A.C. 6A:8-3.1 to be an unfunded mandate, for which financial relief is issued.
The above summary is a quotation from the Complaint filed by Nathanya G. Simon, Board Counsel, on behalf of the Rockaway Township Board of Education, on June 8, 2015.
Respondent, State of New Jersey, Department of Education Summary of Answer and Motion to Dismiss the Complaint:
Respondent denies that the gifted and talented provisions of N.J.A.C. 6a:8-3.1 constitute an unfunded mandate. Pursuant to N.J.A.C. 6A:8-3.1(a), each school district "shall ensure that appropriate instructional adaptations are designed and delivered ... for students who are gifted and talented." N.J.A.C. 6A:8-3.1(a)(5), which can include, but is not limited to, "achievement test scores; grades; student performance or products; intelligence testing; parent, student, and/or teacher recommendation; and other appropriate measures." N.J. Dep't of Educ. FAQ, Gifted & Talented Programs, available at http://www.state.nj.us/education/genfo/faq/faq_gandt.htm ("G&T FAQ"). The school district must provide appropriate educational services and "shall develop appropriate curricular and instructional modifications," N.J.A.C. 6A:8-3.1(a) (5) (ii) - (iii), which "might include, but are not limited to, pull-out programs, classroom-based differentiated instruction, acceleration, flexible pacing, compacted curricula, distance learning, advanced classes, or individualized programs." (G&T FAQ).
The requirement that local school districts establish a gifted and talented program was a part of the regulations prior to July 1, 1996, and the Council therefore cannot consider this matter. Further, the amendments to N.J.A.C. 6A:8-3.1 that became effective on July 5, 2005, simply revised an existing requirement and the regulation is therefore not an unfunded mandate pursuant to the New Jersey Constitution and N.J.S.A. 52:13H-3.
Moreover, requiring school districts to identify and provide appropriate educational services for gifted and talented students does not require direct expenditures to be incurred; rather, any cost will be contingent on decisions made by the local school district. Finally, to the extent there are any costs associated with the identification of and services for gifted and talented students, the district receives state aid and has the discretion to utilize that state aid to support those costs. Accordingly, the regulation cannot be an unfunded mandate.
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 Lauren A. Jensen, Deputy Attorney General, on behalf of the State of New Jersey, Department of Education on May 18, 2015.
