tion (see N.J.S.A. 18A:6-45), was superintendent of schools of Pine Hill from 1965 to 1967. He testified that Pine Hill's budget was voted down every year since 1954. When two submissions were required the electorate voted the budget down twice in the same year, even after it was pared down.

Dr. Hurwitz had to serve in two capacities, school superintendent and the principal of one school. There was no trained librarian in the system. In one school there was a closet with books that served as a library. Some science text books dated back to the 1940's, before astronauts had been heard of. There was no guidance counsellor or speech therapist. A psyscologist was available one day a month. Special program aids were virtually non-existent. Pupils who were either gifted or below average could not get special instruction or materials, unless they qualified as handicapped, because Pine Hill could not afford options to meet special needs. Teacher recruitment was difficult. Five teachers operated on emergency certificates without a college degree. Two such teachers have taught in the system for more than 20 years. Not one teacher had an advanced degree.

Pupils from Pine Hill went into the Lower Camden County Regional district (7-12) which took pupils from 7 elementary school districts. Those from Pine Hill had difficulty competing with other pupils, even with those from districts that were not much wealther. A large percentage of Pine Hill pupils scored below national norms in tests for reading achievement and basic skills. Dr. Hurwitz concluded that the education in Pine Hill was inadequate due to insufficient funds.

Other evidence was offered to show inadequate education both on input and output terms. In Jersey City, tests showed that average results at the end of that were not much wealthier. A large percentage of Pine Hill pupils scored below the first grade were at the national norm but fall substantially below the national norm at the end of the seventh grade. A similar decline was shown by tests in Plainfield. This was interpreted as a failure of the system, since pupils able to learn at national norm levels do worse after being in the system for a number of years. There was evidence that a substantial number of pupils graduating from inadequate school systems are functional illiterates who cannot properly read and understand writing in normal use such as employment applications. A substantial portion of the students in the Camden City system cannot "read well, think well and work well," and some are illiterate, according to the Camden Survey, pp. II-5 and III-8.9.

In Camden, in 1968–69, 287 of 945 teachers had substandard teaching certificates (86 in secondary schools and 201 in elementary schools). Camden Survey, at P-4. There were only two Puerto Rican teachers in a system with 2,000 Puerto Rican students. Of 1,879 non-english speaking children only 240 received instruction in English. In Paterson there are 8 bi-lingual teachers for 4,000 Spanish speaking children, a ratio of 1 to 500.

Naturally, the focus here is upon glaring, exceptional deficiencies. But indications are that they may occur more often than we would like to believe. It is difficult to imagine that in the 1960's a history book used in one lower school did not mention World War II, because, when the book was published, that war had not yet taken place. But that was the testimony of a former teacher. (How much can new books cost?) Also, in one school, classroom books could not be taken home because, old and torn, there was only one set of books, and several classes had to share them on the same day. So if this opinion does not discuss theories of education, the importance of early schooling. or tenure and lock-step salary ranges and their effects upon teacher performance, it is for obvious reasons. Not all shortcomings are the fault of the school system. The learning of a pupil from a deprived environment is impeded by many factors. For example, many pupils come to school hungry, or have uncorrected sight or hearing defects which wou'd interfere with learning. Some students have migrated from even more inadequate school systems. But there is ample evidence in the record that these limitations can be offset significantly by improved educational offering. Better physical examinations and follow-up is a simple example of how a school can overcome a learning handicap. Testimony in support of the more general conclusion was given by a number of witnesses, including Professor James W. Guthrie of the University of California and Henry M. Levin. Associate Professor in Economics and in Education, Stanford University. See Guthrie, Kleindorfer, Levin & Stout, Schools and Inequality, M.I.T. Press (Cambridge: 1970), a study for the Urban Coalition, first published in 1969.

Professor Henry S. Dyer of the Educational Testing Service of Princeton, New Jersey, testified that pupil achievement is positively related to per pupil expenditure for instructional purposes. He estimated roughly that the relationship is on the order of .4 in correlation coefficient. This means that by his estimate per pupil expenditure is associated with about 16% of the variation in average pupil achievement. This is a positive but not a strong correlation. Others, including Guthrie and Levin, apparently see a higher degree of correlation. Professors Levin and Guthrie do not say that more money alone will make a difference. More money properly spent on proper programs can make a difference. Higher teacher salaries should enable a district to select teachers and supporting staff who are better fit for the needs of its pupils. More money can give districts options to attack their problems in ways not available to them now.

I am aware of the qualified doubts about the dollar-input-output relation raised by the Coleman Report. J. S. Coleman, et al., Equality of Educational Opportunity, U.S. Printing Office (Washington, D.C.: 1966). At p. 325, the Coleman Report concludes that family background and the social composition of the student body are the primary determinants of achievement in school." The conclusions of the Coleman Report have been disputed, and the methoas of analysis and measurement that underly the findings have been criticized. See Guthrie, et al., Schools and Inequality, supra, at pp. 92, 96-99. In fact, more recently Dr. Coleman has applauded the concept of equalizing educational offering by equalizing financing power and tax effort through methods proposed by Professor Coons and his associates. Coons, Clune and Sugarman, Private Wealth and Public Education, infra, Foreward, pp. vii to xvi. The Coleman Report itself states that "improving the school of a minority pupil may increase his achievement more than would improving the school of a white child increase his. Similarly, the average minority pupil's achievement may suffer more in a school of low quality than might the average of white pupils." At p. 22. So far as this court is concerned, the only evidence offered in the case does show correlation between educational expenditures and pupil achievement over and above the influence of family and other environmental factors."

15

Chapter 4 of Schools and Inequality, supra, reviews 17 studies which attempt to determine the effects of schooling exclusive of a pupil's social environment. The authors note the difficulty of isolating environmental and congenital characteristics which affect a student's performance. These influences have a strong impact on the student even before he enters school for the first time. Nevertheless, a number of studies conclude that school services are significantly related to pupil achievement. One of the early studies performed by the Educational Testing Service of Princeton 1 shows a direct correlation between pupil performance and school services such as (1) the number of special staff (psychologists, reading specialists, counselors) in the school; (2) class size; (3) pupil-teacher ratio; and (4) instructional expenditures per pupil. Other studies show a positive correlation between pupil performance and teacher characteristics (such as verbal ability, experience, salary level, academic preparation, etc.) and access to teachers (size of class, length of school year, etc.). The school environment, such as the age, size and type of facilities available, also affects learning, but to a lesser degree. Because the foregoing components can be translated into dollar costs. Professor Guthrie and his associates concluded that expenditures per pupil and teacher salary levels are significantly correlated with pupil achievement. Better education does make a difference regardless of the child's social environment.

Dr. Dyer submitted charts (P-23 in evidence) which show a correlation between per pupil expenditures and various gauges of performance, such as SAT scores and truancy rates. Figure VI of this exhibit shows the results of a con

14 The Coleman Report, at p. 325, concludes:

That schools bring little influence to bear on a child's achievement that is independent of his background and general social context; and that*** the inequalities imposed on children by their home. neighborhood, and peer environment are carried along to become the inequalities with which they confront adult life at the end of school. For equality of educational opportunity through the schools must imply a strong effect of schools that is independent of the child's immediate social environment, and that strong independent effect is not present in American schools.

15 It may well be that part of the Coleman Report must be given effect and that to equalize educational opportunity significantly de facto segregation of minority pupils must be overcome in addition to equalizing funds and facilities.

16 Mollenkopf. William G., and Melville, S. Donald "A Study of Secondary School Characteristics As Related to Test Scores," Research Bulletin 56-6 (Princeton: Educational Testing Service, 1956), mimeograph.

trolled experiment in Hartford, Connecticut ("Project Concern") in which 266 elementary school children selected at random were transferred from 5 depressed inner city schools to 35 elementary schools in affluent suburbs. A group of 305 similar students remained in the inner city schools to serve as a control group. Results were then tested by gain or loss in I.Q. scores. The experimental group transferred to the suburbs presented a median gain for pupils in 6 grades (1 thru 6) from the spring of 1967 to the spring of 1968 of 5.2 as compared with a median gain of 3.2 for the inner city group. Five of six grade groups transported to the suburbs made significantly greater gains in I.Q. than their counterparts in the city. (One group, grade 5, declined for unexplained reasons.) Grade 1 pupils in the suburbs gained 8.2 as compared with 3.0 for the city group.

Other testimony supported similar conclusions. Some studies show that students in depressed areas whose schools have received substantial improvement under federal aid programs have achieved better than similar pupils in the same city attending schools which have not been changed. This result has been reported for Washington, D.C., as well as Jersey City.

That dollars can make a significant difference in pupil performance is the premise of the Camden Survey, supra, made by our State Department of Education. The Mancuso Report, supra, at p. 9, also concludes that while "many communities are unable to adequately educate their youngsters, it is equally clear that many others are eminently successful. * * * Although there are some excellent small districts in the state, almost all evidence points to a correlation between enrollment, wealth, quality education and efficiency."

Limitations in this type of case, dealing with the system as a whole rather than problems of a given district, make it impossible to treat aspects in the dollarquality equation. To what extent can the consolidation of districts expand the range and quality of instructional opportunity without greatly changing costs? See Mancuso Report, supra. To what extent are high drop-out rates in central cities a reflection of unstimulating instruction, or other forces? Why do students from our deprived schools who want to go to college score appreciably lower in their SAT's than students from wealthy surburban schools? Should teachers get "combat pay" in some schools? Vocational training has not been explored in the case, but statistics in the NJEA Bulletin, p. 31, suggest that county vocational schools have not reached enough pupils who could profit by this type of training. There was testimony on other points that I cannot dwell upon. One example is the self-fulfilling negative attitude of middleclass teachers toward students of low socioeconomic status. Also discussed was the low self-esteem of children from poor neighborhoods who begin their first contacts with American government by entering ancient, dilapidated buildings. Perhaps they ask themselves, "Is this what my state thinks of me?" (In school they are given a primer which shows a white house surrounded by neat, green lawns. It reads, "Are you ready for school, Tom? Run to school, Tom. Run fast.") In any case even new schools won't take these children out of depressing neighborhoods. As was said recently about a black ghetto, the people who lived there "hated it so much that they had burned down a lot of it * * *. It was all they had, and they'd wrecked it." Kurt Vonnegut, Jr., Slaughterhouse-Five or The Children's Crusade, Delta Books (New York: 1969), at p. 51.

Questions are asked because we do not have all the answers. Some conclusions, however, can be drawn on the specific issues of this case. Assistant Commissioner Edward Kilpatrick testified that his office had participated in the Camden Survey, supra, and wrote the following at p. H-2:

With this dependence upon local property taxes for the support of such services in New Jersey, it is inevitable that the children in the poorest communities do not have the same educational opportunities as those in the more affluent districts. The same report concluded that state aid under the foundation program is not sufficient to permit substantial improvement (p. III-3).

Clearly, a large number of New Jersey children are not getting an adequate education. This is caused in part by insufficient funds in many districts despite high taxes. On the other hand, many districts provide superior education with less tax effort. More money should make a significant difference in many districts. However, the problems in older cities with a large minority population are more complicated. It is too much to expect that our school system alone can solve all these problems. But much can be done, and doing more will cost more. Education is no exception to this fact of life.

IV. THE EDUCATION CLAUSE AND THE BATEMAN ACT

Between the idea

And the reality

Between the motion

And the act

Falls the Shadow

-T. S. Eliot,

"The Hollow Men."

A. THE BATEMAN ACT

The essential features of formula aid under the Bateman Act consist of "minimum support aid" and "incentive equalization aid." N.J.S.A. 18A :58-5. Both are determined on a pupil basis, and both are designed to vary according to the classification of a district. The Act provides for classification in 5 categories, from basic to comprehensive, depending on the quality and scope of the educational program offered. with higher levels of aid offered as an incentive to program improvement through higher expenditures. See Bateman Report at pp. 48. 49. Since the Bateman Act has not been fully funded, however, all districts are being treated as basic districts. The Legislature has continued this uniform classification for 1972-73, L. 1971, c. 335. supra, and none can qualify for higher State aid based on higher classifications. Moreover, the classification criteria have not yet been adopted. Criteria formulated by the Commissioner with the approval of the State Board have been rejected by the Permanent Commission on State Support. Other criteria have been proposed. When agreement is reached the criteria are to be submitted to the Legislature for enactment. N.J.S.A. 18A :58-3. "Minimum support aid" and "school district guaranteed valuation" are both based upon the number of resident weighted pupils of the school district. N.J.S.A. 18A:58-2. Pupils are weighted to reflect varying costs of education according to grade levels. N.J.S.A. 18A : 58–2; Bateman Report at p. 4. The principal categories of weights adopted by the Legislature are:

Kindergarten pupils.

Elementary pupils (grade 1 through grade 6).

Senior and 4-year high school pupils (equated to full time).

Units

.75

1.0

1.3

Additional weight is given for AFDC children (children in families residing in the school district who receive assistance under a program of aid to families with dependent children) between the ages of 5 to 17, inclusive, who reside in the district. Whether attending school or not, each such child counts as an additional .75 units in determining the number of weighted children for the school district. N.J.S.A. 18A:58-2; Bateman Report at p. 48. Weighting increases aid to districts whose weighted enrollment is greater than actual enrollment. A 10% increase in pupils due to weighting will increase minimum aid and guaranteed valuations by 10%.

"State aid" under the Bateman Act is defined as minimum support aid, incentive equalization aid, transportation reimbursement, atypical (handicapped) pupil reimbursement, county aid and vocational school aid. N.J.S.A. 18A: 58-2." All districts receive minimum support aid. This is $110 per pupil in a basic district. If the law is implemented by new legislation to establish classification criteria, minimum support aid will be increased in steps of $12.50 each for a limited district. an intermediate district, a pre-comprehensive district, and a comprehensive district, reaching the maximum of $160 per weighted pupil. "Incentive equalization aid" is given to a district whose actual equalized valuation per pupil is less than the guaranteed valuation per weighted pupil based

17 The school building aid law was also amended by the Bateman Act. This aid, for debt service and capital outlay (as well as capital reserve fund), was amended to include the same weighting basis per pupil (including the AFDC factor), but not to exceed $45 per weighted pupil in resident enrollment, and subject to a local share equal to $0.75 per $100 of equalized valuations. This law is also subject to the 20% funding provision. V.J.S.A. 18A:58-18.1. Under the "emergency" building aid law of 1968 ( 1968, c. 177. as amended by L. 1969, c. 136. L. 1970. c. 125 and L. 1971, c. 10) an additional sum not exceeding $25 per pupil is also available for debt service only for those districts found by the State Board of Education to be incapable of providing necessary school facilities (N.JS.A. 18A :33-1) to satisfy the school laws. N.J.S.A. 18A :58-33.2 et seq. In 1972 73 building aid ($29.7 million) and emergency aid ($7.4 million) will approximate 27% of the annual debt service costs of local districts.

on the district's classification. In a basic district, total "guaranteed valuation" is a sum equal to $30,000 multiplied by the number of resident weighted pupils of the school district. The guaranteed valuations are to be increased in increments of $3,750 for each classification, reaching a maximum of $45,000 per weighted pupil in a comprehensive district.

The formula for determining incentive equalization aid is set out in N.J.S.A. 18A:58-5. First, you compare the "guaranteed valuations" with the equalized valuations of the district. If the equalized valuations are more than the "guaranteed valuations," no incentive equalization aid is paid. If equalized valuations are less than the "guaranteed valuations," incentive equalization aid is paid in addition to minimum support aid, calculated as follows: The "net operating budget" is first determined. This is defined as the current expenses budget minus all estimated revenue, such as minimum support aid, transportation aid, federal aid, if any, etc. The "net operating budget" is then divided by total guaranteed valuations. The result is the district's school tax rate. That tax rate is then multiplied by the equalized valuations of the district to obtain the local tax requirement. The same tax rate is multiplied by the excess of guaranteed valuations over equalized valuations of the district to obtain the incentive equalization aid payable by the State.

Table V which follows depicts various tax rates that would obtain in a school district depending upon the current budget and the equalized valuations of the district. For purposes of illustration I have assumed districts with equalized valuations of $20,000, $30,000, $45,000 and $60,000, per pupil, and I have assumed that a district chooses to spend $1,000, $1,200 or $1,400 per pupil. The weighting factor of 1.10 was assumed as a general average for all non-AFDC districts. See statewide pupil distribution data in the Commissioner's Nineteenth Annual Report (1969-70), at p. IX. Also, to determine the net operating budget, a deduction of $50 per pupil was assumed arbitrarily to represent other district revenue, such as transportation aid and federal aid, other than formula aid. Tax rates were computed for each district as a basic district as well as a comprehensive (Comp.) district.

1 The weighting factor of 1.434 was derived by averaging current Jersey City and Camden enrollments and AFDC population figures. Camden's enrollment of 20,436 is increased by units for AFDC children (which adds 10,588 units) and units for gradelevels, to a total weighted enrollment of 32,572. Jersey City's enrollment is approximately 39,000; its AFDC factor adds 10,642 units; the total weighted enrollment is 52,328. The average weighted enrollment in Jersey City and Camden combined is 1.434 units per resident pupil.

Using a basic district as an example, with equalized valuations of $20,000 per pupil, calculations under the formula can be simplified as follows:

Select the current total expense per pupil ($1,200); subtract $121 (minimum aid per pupil of $110, raised 10% due to a 1.10 weighting factor) and also subtract $50 (representing other revenue, such as transportation aid). This leaves $1.029 to be raised by local taxes and state equalization aid. Divide $1,029 by $33,000 (the guaranteed valuation of $30,000 raised by 10% due to a 1.10 weighting factor) to get a tax rate of 3.12%. Thus, the amount to be raised by local taxes is 3.12% of $20,000 or $624. State equalization aid is $1,200 minus $121 (minimum support aid), minus $50 (other revenue), minus $624 (local revenue), or $405 per pupil. This is equal to 3.12% of the difference between equalized valuations per pupil ($20,000) and guaranteed valuations per weighted pupil ($33,000). Thus, this assumed basic district, spending $1200 per pupil, will raise $624 locally at a tax rate of $3.12 per $100, and will receive $121 in minimum support aid, plus $405 in state equalization aid, plus $50 in other revenue. Under the foundation plan 80-973-72—17