ABBOTT BY ABBOTT v. Burke

GARIBALDI, J.,

dissenting.

Once again, this Court must determine if the State’s educational program provides a thorough and efficient system of free public schools. The focus of our inquiry has been and still is the special *203needs districts because children in those districts are not receiving the constitutionally mandated education. Based on a misinterpretation of the Education Clause of the New Jersey Constitution, the majority holds that the Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA), L. 1996, c. 138 (codified at N.J.S.A. 18A7F-1 to -33), is unconstitutional as applied to the special needs districts. The majority, therefore, mandates that the State make the per-pupil expenditure of each special needs district equal to that of the average expenditure of the wealthy, suburban districts.

To secure parity, the majority orders the State, by June 30, 1997, to increase aid for regular education to the special needs districts for the upcoming school year by at least $248,152,068.1 Because the special needs and wealthy, suburban districts have yet to complete their budgets, the exact amount that will have to be allocated is currently unknown. What is known, however, is that the other two branches will have to reallocate hundreds of millions of dollars from the budget within forty-eight days. Moreover, neither the Commissioner of Education nor the local school boards of the special needs districts will be able to plan adequately for the effective disposition of such a large influx of aid in such a short period of time.

In the past, the Court used parity in funding as a factor in determining whether the education in special needs districts satisfied the Constitution because we did not possess any other criterion for defining a thorough and efficient system of education. With the enactment of CEIFA, the State has embarked on a new and creative path for defining a thorough and efficient system of free public schools. The approach taken in CEIFA places quality of education ahead of parity in funding by establishing a frame*204work of goals and standards that every child in this State must meet. I find that approach to be facially constitutional.

The basic premise of CEIFA crystalizes my disagreement with the majority. The majority focuses on parity in funding whereas I believe that quality of education is the goal. Although the majority also has the children’s best interests in mind, using money as a goal has and will never provide a thorough and efficient system of free public schools. State and local governments raise sufficient funds to educate the children of this State. Indeed, on average, New Jersey spends more money per child than any other state. Thus, the problem lies in the allocation, not the availability, of funds.

Since 1990, state aid to the thirty special needs districts has increased by approximately $850 million, and yet, there is scant evidence that the children have received the benefit of those expenditures. The experiment of parity in spending has failed. To continue down that path defies common sense and will not improve the education of the children in this State. By emphasizing standards, testing, and strict accountability of how funds are expended, I believe we can give children in the special needs districts a real opportunity to secure a competitive education. Parity in funding, on the other hand, has and will continue to provide those children with empty promises.

I

In assessing the constitutionality of CEIFA, as with all state legislation, the Court must presume that it is constitutional. See, e.g., Town of Secaucus v. Hudson County Bd. of Taxation, 133 N.J. 482, 492, 628 A.2d 288 (1993) (“[T]he court will afford every possible presumption in favor of an act of the Legislature.”); In re C.V.S. Pharmacy Wayne, 116 N.J. 490, 497, 561 A.2d 1160 (1989) (recognizing that presumption of validity attaches to every statute), cert. denied, 493 U.S. 1045, 110 S.Ct. 841, 107 L.Ed.2d 836 (1990); Edgewater Inv. Assocs. v. Borough of Edgewater, 103 N.J. *205227, 510 A.2d 1178 (1986) (stating that Court will declare statute void only if it is “clearly repugnant to the constitution”).

With the enactment of CEIFA the State has offered a comprehensive definition of the phrase “thorough and efficient system of free public schools.” The foundation of CEIFA is the core curriculum standards, which are the substantive standards that every school district must satisfy. CEIFA outlines results that must be met in seven core academic areas: visual and performing arts, comprehensive health and physical education, language arts literacy, mathematics, science, social studies, and world languages. CEIFA also contains “cross-content workplace readiness standards,” which incorporate career-planning skills, technological skills, critical-thinking skills, decision-making and problem-solving skills, self-management, and safety principles. CEIFA provides fifty-six specific curriculum standards and 880 “student progress indicators” for those seven areas.

CEIFA permits individual districts to devise their own curriculum to meet the core curriculum standards. The Department of Education is currently developing “curriculum frameworks” that are to be used as a resource when districts develop their own curriculum to meet the standards in the seven core subjects. CEIFA also mandates that students be tested at three levels: fourth grade; eighth grade; and eleventh grade.

CEIFA’s next major premise is the “T & E amount,” which is the amount it will cost to provide an education that satisfies the core curriculum standards. After creating a hypothetical school district to serve as a model for the State’s 611 districts, the State’s experts determined that it will cost $6,720 per elementary school pupil2 to provide an education that meets the core curriculum standards. CEIFA contains a flexible amount of $336, which is to *206be added to or subtracted from the T & E amount depending on local factors. Under CEIFA, special needs districts (SNDs) are not permitted to spend below the T & E amount. Thus, those districts will spend between $6,720 and $7,056 per pupil. CEIFA also permits school districts to spend above the T & E amount. CEIFA requires that the T & E amount be reviewed and revised biennially. As in the past, school districts will continue to finance their education budgets through a combination of state aid and revenue from property taxes.

The third component of CEIFA’s regular education framework empowers the Commissioner of Education (Commissioner) to monitor the way money is spent. As the majority states: “The Commissioner may order increased expenditures, make budgetary reallocations and programmatic adjustments, and take summary actions when either a district or a particular school is failing to achieve the content standards.” Ante at 193-194, 693 A.2d at 441 (citation omitted). More importantly, the Commissioner is required to perform an exacting review of an SND’s budget. If he concludes that the allocation of the money in the budget will not deliver an education that allows students to meet the core curriculum standards, he must reallocate the funds so that students will receive such an education. Finally, “the [Cjommissioner shall, for any [SND], when he deems it necessary to ensure implementation of the thoroughness standards, direct additional expenditures above the T & E budget in specific accounts and for specific purposes, up to the maximum T & E budget without approval of local voters or board of school estimate, as applicable.” N.J.S.A 18A:7F-6(c).

II

The Education Clause was added to the 1844 State Constitution by amendment in 1875. It was intended to “embody the principle of the 1871 statute that public education for children shall he free.” Robinson v. Cahill, 62 N.J. 473, 508, 303 A.2d 273 (1973) (Robinson I).

The Education Clause now provides:

*207The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.
[N.J. Const, art. VIII, § 4, ¶ 1.] 3

Unlike the majority, I find that the analysis of this case must begin with the interpretation of the Education Clause. Specifically, we must determine the meaning of the phrase “thorough and efficient system.” The majority states without support or explanation that “[o]ur Constitution demands that every child be given an equal opportunity to meet his or her promise.” Ante at 201, 693 A.2d at 445 (emphasis added). That statement does not appear in our Constitution.

The interpretation of the Education Clause is limited to an analysis of the plain language because “there appears to be no helpful history spelling out the intended impact of this [clause].” Robinson I, supra, 62 N.J. at 508, 303 A.2d 273. The lack of history is of no concern because “courts should look to the plain language of the education clause” as the primary factor in determining the outcome of constitutional challenges to state educational schemes. William E. Thro, The Role of Language of the State Education Clauses in School Finance Litigation, 79 Educ. L. Rep. 19, 28 (1993); see also William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L.Rev. 597, 605 (1994) (“[T]he court should focus on the actual language of the education clause and the way it compares to the educational provisions of other states”).

The words that do not appear in the text are the most compelling evidence of what the Education Clause means. The constitutions of some of our sister states illustrate the types of phrases that our drafters could have chosen: “high quality” public education,3 4 “equality of educational opportunity is guaranteed,”5 *208“equal opportunities shall be provided for all students,”6 “nearly uniform as practicable,”7 “general and uniform system,”8 “thorough and uniform system of free public schools,”9 “uniform system,”10 “general, uniform, and thorough system of public, free common schools,”* 11 “adequate public education for the citizens shall be a primary obligation,”12 “adopt all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education,”13 and “[i]t is the paramount duty of the state to make ample provision for the education of all children.”14

The goal of interpreting the phrase, “thorough and efficient system,” is to determine the quality of education that the Constitution requires. See Thro, supra, 35 B.C. L.Rev. at 607; Thro, supra, 79 Educ. L. Rep. at 28. State education clauses can be grouped into four categories: (1) establishing and supporting a free system of public schools; (2) imposing a minimum quality of education for public schools; (3) providing a stronger mandate than category two; and (4) mandating that education is one of the *209State’s primary obligations. See Erica Black Grubb, Breaking the Language Barrier: The Right to Bilingual Education, 9 Harv. C.R.-C.L. L.Rev. 52, 66-70 (1974); Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 Tex. L.Rev. 777, 815-16 (1985); Thro, supra, 35 B.C.L.Rev. at 605-06; Thro, supra, 79 Educ. L. Rep. at 23-25. The “thorough and efficient” phrase falls into the second category. See Grubb, supra, 9 Harv. C.L.-C.R. L.Rev. at 67-68 n. 97; Ratner, supra, 63 Tex.L.Rev. at 815 n. 144; Thro, supra, 35 B.C. L.Rev. at 606 n. 57; Thro, supra, 79 Educ. L. Rep. at 23-24 n. 29.

The word “thorough” concerns the level of education, not the level of education funding. In other words, “thorough” establishes the minimum standard of substantive education that each child must receive. “Thorough” does not mean the best education, the same education, or an education equal to that found in the wealthy districts. Rather, “thorough” means that children must receive an education that will prepare them to be productive citizens and workers.

The term “thorough,” either by itself or combined with efficient or uniform, clearly suggests a school system of a specific quality. Consequently, even though some schools are quite a bit better than others, all or most schools might meet the quality standard of “thorough.”
[Thro, supra, 79 Educ. L. Rep. at 28.]

The word “efficient” implicates funding, ’but not necessarily a specific or equal level thereof. Efficiency focuses on the effectiveness with which educational resources are applied to achieve a certain result. See Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence 181-98 (rev. ed.1990) (defining economic concept of efficiency); see also Harvey S. Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U. Chi. L.Rev. 61, 82-83 (1982) (defining alloeational efficiency in context of tort and contract law as effective use of resources). The concept of efficiency requires that educational resources be applied in a way that maximizes the potential for achieving a thorough education. More simplistically, the Constitution re*210quires that educational resources not be wasted. Waste is inefficient and therefore unconstitutional.

The word “efficient,” when standing by itself, implies that both the financial and nonfinancial resources of the entire state are utilized appropriately and, thus, a certain implied level of quality results. Thus, even though there are significant differences in quality, all or most districts might be “efficient” in their use of resources.
[Thro, supra, 79 Educ.L.Rep. at 28-29.]

Thus, “thorough and efficient system” means that the State must provide resources in a manner that optimizes the chance that children will receive an education that will make them productive members of society.

Ill

The core curriculum standards easily satisfy the thoroughness component of the constitutional mandate. The core curriculum standards contain 7 core academic areas, 5 cross-content workplace readiness standards, 56 specific curriculum standards, 880 student progress indicators, and testing at 3 levels. That framework ensures that students will receive a deep, diverse, and complete education that will enable them to compete in the labor market of the twenty-first century. The majority concedes on several occasions that the core curriculum standards provide the required substantive education. “[CEIFA] may someday result in the improvement of the educational opportunity available to all New Jersey public school students.” Ante at 152, 693 A.2d at 420. “[T]he educational content standards prescribed by the new act are an essential component of a thorough and efficient education ----” Ante at 153, 693 A.2d at 421. ‘We do not disturb the substantive and performance educational standards.” Ante at 153, 693 A.2d at 421. We conclude that the statutory standards are consistent with the Constitution’s education clause.” Ante at 166, 693 A.2d at 427. We therefore conclude that the standards are facially adequate as a reasonable legislative definition of a constitutional thorough and efficient education.” Ante at 168, 693 A.2d at 428. We endorse the legislative judgment that the act’s *211detailed standards embody the substantive content of a thorough and efficient education.” Ante at 176, 693 A.2d at 432. Plaintiffs also do not challenge the constitutionality and validity of the core curriculum standards.

Nonetheless, the majority declares CEIFA unconstitutional because it concludes that the funding for the SNDs is inadequate to provide a thorough and efficient education. See ante at 153, 169, 693 A.2d at 421, 429. SNDs will have between $6,720 and $7,056 per elementary school pupil to deliver the core curriculum standards. The majority asserts that that range is “clearly inadequate.” Ante at 169, 693 A.2d at 429. The majority relies on how much money the wealthy, suburban districts (I & J districts) spend without explaining why a thorough education cannot be delivered for a cost between $6,720 and $7,056. In fact, the 455 non-SND and non-I & J districts (middle districts) spent an average of $7,144 per pupil for the 1996-1997 school year. No one claims that the middle districts are not providing their students with a thorough and efficient education. Thus, the majority’s conclusion is based on the flawed premise that a thorough and efficient education is defined only by the resources and educational programs offered by the I & J districts.

I find fault with the majority’s conclusion for three reasons. First, the plain language and intent of the New Jersey Constitution do not support the majority’s conclusion. See discussion supra at 206-210, 693 A.2d at 447-449. Second, despite its claims to the contrary, see ante at 174, 693 A.2d at 431, the majority opinion neither recognizes the statutory presumption of validity nor defers to the special expertise of the Department of Education.

We traditionally defer to administrative determinations on matters implicating the special knowledge or expertise of that administrative agency. See, e.g., GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 306, 625 A.2d 468 (1993) (“Generally, courts accord substantial deference to the interpretation an agency gives to a statute that the agency is charged with enforcing.”); Merin v. Maglaki, 126 N.J. 430, 436-37, 599 A.2d 1256 (1992) (‘We give substantial deference to the interpretation of the agency charged with enforcing an act. The agency’s interpretation will *212prevail provided it is not plainly unreasonable.”); Mayflower Secs. Co., Inc. v. Bureau of Secs., 64 N.J. 85, 92-98, 312 A.2d 497 (1973) (stating that appellate review of administrative adjudications must give “due regard ... to the agency’s expertise where such expertise is a pertinent factor”).

The general disagreement on the funding issue within the field of education indicates the complexity of the issue and the need to defer to the experts. A glance at the literature dealing with education funding and its impact on student achievement reveals the differing views of scholars in the field. Compare Eric A. Hanushek, The Impact of Differential Expenditures on School Performance, Educ. Researcher, May 1989, at 45, 47 (“There is no strong or systemic relationship between school expenditures and student performance.”) and Eric A. Hanushek, Money Might Matter Somewhere: A Response to Hedges, Laine, and Greenwald, Educ. Researcher, May 1994, at 5, 6 (“The past work demonstrates that simply adding resources to districts will not ensure improvement in student performance. Even if some districts can employ resources effectively, as undoubtedly is the case, there is no assurance that overall increases in resources will lead to overall improvements.”) with Larry V. Hedges, et al., Does Money Matter? A Metar-Analysis of Studies of the Effects of Differential School Inputs on Student Outcomes, Educ. Researcher, Apr. 1994, at 5,13 (concluding that Hanushek’s data “do[es] not support his conclusion that resource inputs are unrelated to outcomes,” but noting “we would not argue that ‘throwing money at schools’ is the most efficient method of increasing educational achievement. It almost surely is not.”).

In addition to widespread disagreement in the field of education, the need to fine-tune funding and program decisions on a district-by-distriet, school-by-school basis, underscores the need to rely on the expertise of the Department of Education. The majority misleads the reader by suggesting that the average per-pupil expenditure of the I & J districts can be a benchmark for the cost of implementing the core curriculum standards in the SNDs. For *213example, such reasoning fails to address the fact that the per-pupil expenditure of a given school district is related to the number of pupils in that particular district; i.e., it fails to account for economies of scale. See, e.g., National School Board Association Advocacy Office, School finance: How and what do schools spend? 1 (n.d.) (noting that spending tends to be highest in “the smallest school districts”).

The majority recognizes that more than fifty percent of the I & J districts are fractured school districts, i.e., K-6, K-8, and 9-12. See ante at 171 n. 16, 693 A.2d at 430 n. 16 (concluding that fewer than fifty percent of I & J districts are K-12). Unquestionably, the higher cost of educating students in those districts may be tied in part to the smaller size of some of those districts. The per-pupil expenditure in the I & J districts, however, does not necessarily translate into additional programs. One wealthy district may spend less per pupil than another wealthy district but nevertheless provide more programs.

Because funding issues are unique to individual school districts, towns, and even classrooms in terms of how funds can be effectively spent to achieve a quality education, the Commissioner is in a much better position than the Court to determine the amount of funds needed to support specific programs. The judiciary neither builds schools nor operates them. As the Court stated in Abbott v. Burke, 100 N.J. 269, 495 A.2d 376 (1985) (Abbott I),

the issues of educational quality and municipal finance may be more effectively presented, comprehended, and assessed by a tribunal with the particular training, acquired expertise, actual experience, and direct regulatory responsibility in these fields. For these reasons, the Court has repeatedly acknowledged and approved the administrative handling of educational controversies that arise in the context of constitutional and statutory litigation, including evaluation of local educational problems, design of remedial measures, and supervision of the program implementation.
[Id. at 300, 495 A.2d 376 (concluding that case should be heard by administrative agency) (citations omitted).]

By concluding that the funding is inadequate, the majority refuses to defer to the Commissioner’s expertise and, in fact, disputes his determination. See, e.g., ante at 169, 693 A.2d at 429 *214(“[W]e conclude that this strategy ... is clearly inadequate____”); ante at 169, 693 A.2d at 429 (stating that CEIFA, the record, “empirical evidence,” “common experience,” and “intuition” do not support State’s position). Yet, oddly, despite disagreeing with the Commissioner’s conclusions, the majority relies in its remedy on the specialized knowledge of the Commissioner. “[W]e require that the Commissioner ... ensure that the increased funding that we have ordered today be put to optimal educational use.” Ante at 194, 693 A.2d at 442; see also ante at 194, 693 A.2d at 442 (“The Commissioner may, within his sound discretion, direct the use of the money to hire additional teachers, to reduce class sizes, to increase program offerings, ... to provide needed school supplies, or to implement additional programs focused on achievement of the content standards.”) (emphasis added).

Thus, on the one hand, the majority recognizes that the Commissioner’s ability in determining the best use of educational funding far exceeds its own; but, on the other hand, the majority challenges the Commissioner’s ability to determine the amount of funds necessary to provide a thorough and efficient education. If the majority finds the Commissioner incapable of determining how much funding is necessary to provide a thorough and efficient education, it is inconsistent for the, majority to make the Commissioner responsible for the even more important task of ensuring that those funds reach the students.

The third reason for my disagreement with the majority’s conclusion that CEIFA inadequately funds regular education is that tight control over how the money is spent is more important than absolute dollars. As stated above, efficiency means “the effectiveness with which educational resources are applied to achieve a certain result,” not equal expenditures. The majority correctly states: “Inefficiency in public education has more to do with the way money is spent than the amount of money spent. Clearly the delivery of an adequate education requires efficiency in spending.” Ante at 171, 693 A.2d at 430. We are continually confronted with anecdotal evidence of inefficient spending; e.g., the school custodian who receives an exorbitant salary for his *215sinecure position. New Jersey spends more per capita for education than any other state in the nation, yet we never have a clear picture of how the money is used.

CEIFA authorizes and requires the Commissioner to take a greater role in monitoring how school districts allocate the funds in their education budgets. The Commissioner must scrutinize SND budgets to ensure that money is being spent in a way that will deliver the core curriculum standards. If the Commissioner concludes that an SND’s budget will not deliver those standards, he has the power to reallocate money to ensure that children receive the proper education. Moreover, although section 6(e) is unclear, it seems to grant the Commissioner the power to increase an SND’s per-pupil budget above the T & E amount when he finds that such an increase is necessary to implement the standards.

CEIFA’s provisions for monitoring how money is spent in the SNDs provide accountability and ensure that the State will play a more active role in the development and implementation of the educational plan in those districts. Most importantly, those provisions attempt to remove the political patronage and perks that currently burden the educational system. CEIFA’s funding scheme meets both prongs of the efficiency component: (1) it allocates a sufficient amount of money to deliver the core curriculum standards; and (2) it grants the Commissioner the power to monitor how the money is spent. Thus, I conclude that CEIFA efficiently delivers the core curriculum standards.

IV

Concluding that CEIFA is facially constitutional is also consistent with the Court’s prior decisions.15 The relevant ease law *216begins with the Court’s 1973 opinion in Robinson I, supra, where we established a benchmark against which the educational system was to be judged. We stated that “the constitutional guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market.” 62 N.J. at 515, 303 A.2d 273. I continue to adhere to that definition.

Moreover, in Robinson I, we did not suggest that all school districts had to spend the same amount per child on education, nor did we find that equality of expenditures was a panacea, a cure-all, or constitutionally required. Ibid. Indeed, we explained that dollar input would be considered because “it is plainly relevant and because we have been shown no viable criterion for measuring compliance with the constitutional mandate.” Id. at 515-16, 303 A.2d 273.

Before determining that an administrative law judge should consider the evidence at the heart of the controversy, the Court in Abbott I, supra, reviewed the Robinson litigation (I through V) and found three basic themes that emerged from the opinions in those cases: (1) “[t]he thorough and efficient education clause ... does not require the legislature to provide the same means of instruction for every child in the state”; (2) “if the State assumes the cost of providing the constitutionally mandated education, it may ... authorize local government to go further and to tax to that end”; and (3) although “plainly relevant,” dollar input per student “is only one of a number of elements that must be studied in giving definition and content to the constitutional promise.” 100 N.J. at 291-92, 495 A.2d 376 (citations and internal quotation marks omitted).

*217Thus, a thorough and efficient school system does not mean that every child must receive the same education. Rather, all that is required is that each child receive an education that will enable him or her to compete effectively in the marketplace. If one district offers its students the opportunity to learn three languages while another district offers its students the opportunity to learn only two languages, the latter district does not necessarily fail to provide its students with a thorough and efficient education.

Moreover, since the beginning of our jurisprudence in this area, we have focused on the meaning of “thorough and efficient” rather than on equality of per-pupil expenditures. See Robinson V, supra, 69 N.J. at 464, 355 A.2d 129 (upholding 1975 Act against facial challenge because Legislature adequately set standards against which thorough and efficient education could be judged); Robinson I, supra, 62 N.J. at 515, 303 A.2d 273 (finding that “thorough” required high school education in light of legislative changes); Landis, supra, 57 N.J.L. at 512, 31 A. 1017 (holding that thorough and efficient education did not require high schools). Whatever thoroughness has meant, its concern has always been the level of education, not the level of educational funding.

In Abbott II, supra, we implied that equality of expenditures was not necessary: “[T]he clear import is not of a constitutional mandate governing expenditures per pupil, equal or otherwise, but a requirement of a specific substantial level of education.” 119 N.J. at 306, 575 A.2d 359. Yet, we still mandated that spending per pupil between poor and affluent districts be substantially equal. See ibid. In essence, even though we found that disparities in school district spending were not unconstitutional per se, we still ordered the Legislature to equalize spending. We reaffirmed that position in Abbott III, supra, 136 N.J. at 454, 643 A.2d 575.

The internal inconsistency created by Abbott II and III is understandable. In those eases, the Court relied on money because it was not presented with any legislative definition of a thorough and efficient system. For example, the Quality of Education Act of 1990, L. 1990, c. 52, N.J.S.A. 18A:70-1 to -37 *218(repealed), focused on parity in per-pupil spending between the SNDs and the I & J districts. Therefore, the monetary remedy in Abbott III consistently followed from the insufficiencies of that Act.

This case presents a different factual setting. With CEIFA, the Legislature has created a new method for delivering a thorough and efficient system of free public schools. The confusion created by Abbott II and III, however, is still evident in the majority’s opinion. On the one hand, the majority concedes that the core curriculum standards are thorough. See ante at 152, 153, 166, 167, 176, 693 A.2d at 420, 421, 427, 428, 432. On the other hand, the majority still mandates equivalent expenditures per pupil. That remedy is totally inconsistent with the majority’s finding and places in question the majority’s commitment to any remedy other than parity in funding.

Y

The majority’s decision to order equal funding will create other substantial problems. There are 611 school districts in New Jersey. Assuming that twenty-eight of the districts are SNDs and 128 are I & J districts, there are 455 middle districts. Many of those middle districts do not spend as much money as the I & J districts. In fact, the 1996-1997 average per-pupil expenditure for those districts is $7,144. Thus, if we apply the majority’s full parity argument, the middle districts would have to receive additional funds because they are not currently providing a thorough and efficient education. We have never held that.

Moreover, the majority’s order will cause havoc in the public school systems. The majority claims that parity will “become obsolete ... [i]f it can be convincingly demonstrated under CEI-FA ... that a substantive thorough and efficient education can be achieved in the SNDs by expenditures that are lower than parity with the most successful districts____” Ante at 196, 693 A.2d at 442. Based on the majority’s failure in this case to defer to the Commissioner’s expertise, I seriously doubt the validity of that *219claim and believe that the level of funding mil continue to be based on full parity with the I & J districts. That will lead to a constant state of flux because the SNDs’ budgets will depend on the budgets in the I & J districts, which will likely increase every year. Therefore, every time the I & J districts increase their budgets, funding for the SNDs will have to increase because the average per-pupil expenditure for the I & J districts will have increased. From a practical perspective, the majority’s remedy is unworkable. More importantly, unless the majority intends annual lawsuits for the foreseeable future, its remedy will result in a never-ending, increasing level of funding for the SNDs that is unrelated to whether the children in those districts are receiving a thorough and efficient education.

Y1

To provide for the extra needs of children in the SNDs, CEIFA proposes two initiatives: Demonstrably Effective Program Aid (DEPA), N.J.S.A 18A:7F-18, and Early Childhood Program Aid (ECPA), N.J.S.A. 18A:7F-16. Because the majority thinks that the amount provided for those programs is inadequate and is not based on any actual study of the needs of the students in the SNDs or the costs of supplying the necessary programs, it orders the Superior Court to direct the Commissioner to initiate a study and to prepare a report with specific findings and recommendations concerning the special educational needs of the SNDs. See ante at 200, 693 A2d at 444. That report will be submitted to the Superior Court. The parties will be permitted to file exceptions to the Commissioner’s findings and recommendations. The Superior Court will have the discretion to hold a plenary hearing or appoint a Special Master to assist it in making its decision concerning the Commissioner’s report. That decision will then be reviewed by this Court.

I, on the other hand, would have the Commissioner submit his report directly to this Court because directing the Commissioner to report to the Superior Court is unnecessary, will unduly *220prolong the process, and will make the process more expensive and complicated. Nonetheless, this part of the majority’s remedy better comports with my position that funding should follow programs.

VII

Because the Education Clause does not require equality in per-pupil expenditures between districts, CEIFA is not facially unconstitutional. CEIFA is a laudable effort by the other branches of government to comport with the Court’s directive to establish standards. CEIFA presents a “good faith” attempt on the part of the Legislature to comply with our previous decisions. The State has substantially narrowed the disparity between the SNDs and the I & J districts by increasing aid to the SNDs by approximately $850 million. That figure does not include the additional amount of approximately $138.6 million, which the State asserts will be contributed to those districts under CEIFA for the 1997-1998 school year. The State’s “good faith” is also evidenced by the process surrounding CEIFA’s development. The core curriculum standards and funding mechanism were the product of a lengthy and deliberate process that took over two years.

The quality of education, not parity in funding, determines whether a child is receiving a thorough and efficient education. For the first time, the State has supplied the Court with a factor other than money by which to define thorough and efficient. The core curriculum standards, the very heart of CEIFA, provide the benchmark of a thorough and efficient system of free public schools. Those standards define in detail what all children need to know to be successful citizens and workers.

The majority acknowledges that CEIFA represents “a good faith” effort to solve the school-funding problem. See ante at 166, 167, 693 A.2d at 427, 428. That conclusion conflicts with the majority’s mandate that the Legislature provide hundreds of millions of dollars in additional aid for regular education by June 30. That mandate implies that CEIFA is tantamount to legisla*221tive inaction. The thoughtfulness of the legislative and executive branches in designing CEIFA deserves an equally thoughtful judicial response. Ultimately, the other two branches of government, not the judiciary, must solve the problem of how to deliver a thorough and efficient education to the children in the SNDs.

VIII

CEIFA, unlike the majority, places the horse before the cart by linking money to specific educational standards. The needs of the children, including the children in the SNDs, must be determined according to CEIFA’s core curriculum standards. To implement the core curriculum properly, money will have to be spent: better teachers will have to be trained, and better educational tools, like computers, and better facilities will have to be provided. The cost of implementing those core curriculum standards, however, rather than the amount of money spent by the wealthy districts, will drive the educational system. That procedure will allow for much greater accountability.

Actual experience might demonstrate that the Commissioner cannot fully implement the core curriculum standards in each SND. In fact, only the future can demonstrate whether the core curriculum standards will provide a thorough and efficient system of free public schools for all children. The majority’s assertion that CEIFA is unconstitutional, as applied, is therefore premature.

Because of the importance to the children of the State, particularly the children in the SNDs, I would retain jurisdiction in this matter. I would give the Commissioner until the school term 1998-1999 for the substantial implementation of the core curriculum. Any earlier date is not feasible. I understand that detailed lesson plans to enable teachers to help students meet the new standards will be ready by next spring. Appropriate testing should likewise be implemented as soon as is feasible. The Commissioner’s proposed regulation N.J.A.C. 6:19 provides that *222the Commissioner can direct the full implementation or expedited implementation of ECPA. I suggest that he do so.

IX

I recognize that the children in the SNDs have waited a long time, but increasing funding by ten percent will accomplish little. Under CEIFA, I do not expect state aid to the SNDs to decrease. The implementation of the core curriculum standards will ultimately require more aid for the SNDs than for the affluent districts because the educational needs of the children in the SNDs are greater, due in large measure to the intractable problems associated with poverty. I do not know what level of spending is optimal in the pursuit of the goal that children receive a thorough education. I know only that we have not improved learning despite a very substantial increase in aid to the SNDs. Until we target spending at particular programs, the schools will not improve. We need a result-oriented educational system. Through the implementation of the core curriculum standards, testing, and strict accountability of how funds are expended, we will go a long way toward achieving such a system.

In a perfect world, I, like the Court, would like to see every student in the SNDs have the same educational opportunities as students in the I & J districts. The majority correctly states that “there can be no responsible dissent from the position that the Court has the constitutional obligation to do what it can to effectuate and vindicate the constitutional rights of the school children in the poverty-stricken urban districts.” Ante at 202, 693 A.2d at 445. The Constitution, however, requires only that the State maintain and support a thorough and efficient system of free public schools. The drafters of the Constitution could have provided that each child receive an “equal” education, but they did not, and the majority should not rewrite the Constitution.

CEIFA may not be perfect, but it sets us on the road to establishing a thorough and efficient public school system for every child in this State. CEIFA should be upheld because for *223the first time, the driving force is educational standards, and not the further continuation of a failed scheme.

For granting, affirmance and remanding — Justices HANDLER, POLLOCK, O’HERN, STEIN and COLEMAN — 5.

For granting and modification-Justice GARIBALDI-1.

ORDER

The Supreme Court having found previously that plaintiffs have been denied their constitutional right to a thorough and efficient education, Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990) (Abbott II);

And the Court having found thereafter that the Legislature enacted a statute that was unconstitutional in that it failed to provide a thorough and efficient education; and having ordered that the Legislature achieve substantial equivalence, approximating one-hundred percent, in per-pupil expenditures by school year 1997-1998; and, further, having ordered that previously-ordered remedies for plaintiffs’ special educational needs be implemented, Abbott v. Burke, 136 N.J. 444, 643 A.2d 575 (1994) (Abbott III);

And the Legislature having enacted the Comprehensive Educational Improvement and Financing Act of 1996, L. 1996, c. 138 (codified at N.J.S.A 18A:7F-1 to -33), in response to the Court’s judgment in Abbott III, supra;

And the Court in this action having found the funding provisions of the Comprehensive Educational Improvement and Financing Act unconstitutional in respect of the special needs districts; and the Court having found further that that statute fails to address adequately the special educational needs of students attending school in the special needs districts, in that the State failed to undertake the study required by our prior decisions to determine the nature and extent of those needs, and, further, failed to determine the costs associated with the programs required specifically to meet those needs; and the Court having found further *224that the State’s constitutional obligation includes the duty to provide adequate school facilities to students in the special needs districts, irrespective of the local district’s ability to incur debt;

And the Court having determined that remedial relief is required in accordance with its opinion; and good cause appearing;

It is ORDERED that the State provide increased funding to the twenty-eight districts identified in the Comprehensive Educational Improvement and Financing Act as “Abbott districts” that will assure that each of those districts has the ability to spend an amount per pupil in the school year 1997-1998 that is equivalent to the average per-pupil expenditure in the DFG I & J districts for that year, based on actual, budgeted expenditures, by the commencement of the 1997-1998 school year; and it is further

ORDERED that the State, through the Commissioner of Education (Commissioner), manage, control, and supervise the implementation of said additional funding to assure that it will be expended and applied effectively and efficiently to further the students’ ability to achieve at the level prescribed by the Core Curriculum Content Standards, as adopted by the Department of Education and incorporated by reference into the Comprehensive Educational Improvement and Financing Act; and it is further

ORDERED that the case is remanded to the Superior Court, Chancery Division, to effectuate the remedial relief ordered by the Court; and that, on remand, the Superior Court shall direct the Commissioner to:

(1) Conduct a comprehensive study of the special educational needs of students attending school in the twenty-eight Abbott districts, and specify the programs required to address those needs, which shall include, as necessary, programs in addition to those provided for in the Comprehensive Educational Improvement and Financing Act;

(2) Determine the costs of those needed programs, on a per-program and per-pupil basis, which shall include, as necessary, *225costs in addition to those provided for by the Comprehensive Educational Improvement and Financing Act;

(8) Devise a plan for State or State-assisted implementation of the identified programs in each of the twenty-eight Abbott districts;

(4) Review the facilities needs of the twenty-eight Abbott districts, and provide recommendations concerning how the State should address those needs. That review shall include consideration of appropriate and alternative funding, as necessary;

(5) Provide for the participation by the parties to this action in any proceedings required to fulfill the requirements set forth by the aforementioned paragraphs (1) — (4), including opportunities to respond and to take exception to proposed specific findings, recommendations, or conclusions of the Commissioner concerning said programs and facilities needs;

(6) Prepare and submit to the court interim progress reports, as may be required by the court, and submit a final report that shall include the Commissioner’s specific findings, conclusions, and recommendations, together with the responses and exceptions of the parties, as required by the aforementioned paragraphs (1)— (5); and it is further

ORDERED that the Superior Court shall be permitted to conduct proceedings to adduce additional evidence relating to said special programs and facilities needs in the Abbott districts, as required, and that the Commissioner and all parties to this action shall be permitted to participate in such proceedings; and it is further

ORDERED that the Superior Court shall be permitted, with the approval of the Supreme Court, to appoint a Special Master to assist the court with such proceedings and with the court’s review of the report of the Commissioner, and to submit to the court, as may be required, a report including findings, conclusions, and recommendations for special programs and facilities needs in the Abbott districts; and it is further

*226ORDERED that the Superior Court shall render a decision, based on the court’s review of the report submitted by the Commissioner, any report that may be submitted by the Special Master, and any additional evidence. The decision shall include the court’s findings, conclusions, and recommendations, including its determination as to whether the proposals contained in the report submitted by the Commissioner satisfy the requirements of this Order, consistent with this Court’s opinion in this case; and it is further

ORDERED that the Superior Court, Chancery Division, shall render its decision by December 31, 1997, and that its decision shall be then reviewed by this Court; and it is further

ORDERED that the Court retains jurisdiction.

$248,152,068 is the cost of securing parity for the current school year. The average per-pupil expenditure for the wealthy suburban districts is estimated to increase from $8,181 for 1996-97 to $8,431 for 1997 — 1998. Therefore, to achieve parity in the coming year, the State will have to provide more than $248,152,068.

CEIFA accounts for the greater educational cost at the middle and high school levels by multiplying the T & E amount by 1.12 for middle schools and 1.2 for high schools. Thus, the T & E amount is greater for middle and high school students than it is for elementary school students.

The language of the Education Clause has remained substantially the same since it was amended in 1875.

Va. Const, art. VIII, § 1; III. Const, art. X, § 1.

Mont. Const, art. X, § 1.

N.C. Const, art. IX, § 2.

Wis. Const, art. X, § 3.

Ariz. Const, art. XI, § 1; Ind. Const, art. VIII, § 1; Or. Const, art. VIII, § 3; S.D. Const, art. VIII, § 1.

Colo. Const, art. IX, § 2.

Fla. Const, art. IX, § 1; Nev. Const, art. XI, § 2; N.M. Const, art. XII, § 1; N.D. Const, art. VIII, § 2.

Idaho Const, art. IX, § 1.

Ga. Const, art. VIII, § 1, ¶ 1.

R.I. Const, art. XII, § 1.

Wash. Const, art. IX, § 1.

See Robinson I, supra, 62 N.J. 473, 303 A.2d 273; Robinson v. Cahill, 63 N.J. 196, 306 A.2d 65 (Robinson II), cert. denied, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973); Robinson v. Cahill, 67 N.J. 35, 335 A.2d 6 (1975) (Robinson III); Robinson v. Cahill, 69 NJ. 133, 351 A.2d 713 (1975) (Robinson IV), cert. denied, 423 U.S. 913, 96 S.Ct. 217, 46 L. Ed.2d 141 (1975); Robinson v. Cahill, *21669 N.J. 449, 355 A.2d 129 (1976) (Robinson V); Robinson v. Cahill, 70 N.J. 155, 358 A.2d 457 (1976) (Robinson VI); Robinson v. Cahill, 70 NJ. 464, 360 A.2d 400 (1976) (Robinson VII); Robinson v. Cahill, 79 NJ. 464, 360 A.2d 400 (1976) (Robinson VIII); Abbott I, supra, 100 N.J. 269, 495 A.2d 376; Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990) (Abbott II); and Abbott v. Burke, 136 N.J. 444, 643 A.2d 575 (1994) (Abbott III).