dissenting.
Today the majority brands a group of children as uneducable and unfit citizens because it mistakenly believes the Legislature has done so. By its unquestioning deference to an imagined legislative intention, the majority has completely abdicated its fundamental responsibility of constitutional judicial review. The majority leaves these children to the dubious protection of what it calls “humanitarian and compassionate instincts,” see *269ante at 253 and what others would call political expediency. This result diminishes more than our State Constitution’s guarantee of education. It diminishes the meaning of our common humanity, for it is by education that each of us, including Linda Guempel and Maxwell Levine, attains the full measure of the humanity we possess. I therefore dissent.
I
As its initial and most egregious error, the majority examines our State Constitution’s sweeping guarantee of a “thorough and efficient” education, N.J.Const. (1947) Art. VIII, § 4, par. I,1 and concludes that the words “all the children in the State between the ages of five and eighteen years,” id., refers to all children who are not profoundly mentally impaired. See ante at 249. By limiting the reach of the thorough and efficient education clause, the majority relegates that guarantee to a subordinate position among the fundamental rights safeguarded by our State Constitution. It has also effectively abdicated this Court’s ultimate responsibility for ensuring that the Legislature fulfills its constitutionally mandated obligations.
A
I share wholeheartedly in the majority’s recognition of the essential role education plays in “an enlightened democracy and effective representative government.” See ante at 245. The necessity of an appropriate education to the exercise of the rights of self-government cannot be denied and should not be underestimated. See, e. g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Robinson v. Cahill, 62 N.J. 473 (1973) (“Robinson I”), cert. den. sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973). *270Thus, if education were not a fundamental right under our State Constitution, I might be persuaded to afford it some constitutional status because of the indirect effect it has on the franchise. Cf. Matthews v. City of Atlantic City, 84 N.J. 153 (1980). To say, however, that the right to education necessarily depends upon the ability to exercise the franchise is to deny education its fundamental status. The same is true concerning the majority’s attempt to subordinate the right to education to the right to compete in the labor market. See ante at 247. On this frivolous theory, those who neither vote nor work may be required to reimburse the State for the cost of their public education. This apparent absurdity is the majority’s result today. Since neither Linda Guempel nor Maxwell Levine will ever be able to vote or work, the State may constitutionally require reimbursement for the cost of their training.
As essential to the needs of our system of government as education is, its constitutional significance does not end there. In concluding that it does, the majority has misplaced its reliance on federal precedent. Since there is no federally guaranteed right to education, see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), any federal constitutional interest in education arises solely as a complement to other basic tenets of federal organic law. See id. at 62-63, 93 S.Ct. at 1311-1312, 36 L.Ed.2d at 60 (Brennan, J., dissenting). Under our State Constitution, however, the right to education enjoys coequal status with other fundamental rights. Its purpose and meaning must therefore be assessed in a manner befitting its independent, fundamental nature.
Reciting the few references courts have made to the demands of the education clause cannot substitute for a necessarily searching inquiry into the meaning of education as a fundamental right. Neither Landis v. Ashworth, 57 N.J.L. 509 (Sup.Ct. 1895), nor Robinson I, supra, dealt with the question of entitlement that now confronts this court. The court in Landis was concerned with whether school districts were political subdivi*271sions of the State, thus possessing the power to tax. Local taxation was assailed on the grounds that it resulted “in affording different degrees of instruction to the children in different districts, while it is the duty of the legislature to see that the same facilities for education are furnished to every child in the state.” 57 N.J.L. at 512. The court concluded that the amount of local funding above the State appropriation went beyond the minimum required by the Constitution. This obligation was seen as “a duty of providing for a thorough and efficient system of free schools, capable of affording to every child such instruction as is necessary to fit it for the ordinary duties of citizenship * * *.” Id. The Legislature could delegate authority to local entities to provide further instruction in “non-essential” areas without violation of its constitutional obligations. However, the court had no occasion to consider whether this constitutional minimum encompassed more basic skills for the ordinary needs of survival.
In Robinson I this Court was again concerned with the State’s delegation of its responsibility to finance public education to local governments. Excessive reliance on property taxes had resulted in gross disparities in school funding. The Court declined to accept the “unlikely proposition that the lowest level of dollar performance happens to coincide with the constitutional mandate” while all other school districts supply more than the constitutional minimum. 62 N.J. at 516. Part of the basis for this view was our recognition that providing solely an elementary school education could no longer pass constitutional muster. 62 N.J. at 515. The Court refused to treat a “thorough and efficient education” as a stagnant concept, frozen in meaning since an education clause was included in our Constitution of 1875. We emphasized that “[t]he Constitution’s guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting * * Id. We did not, however, consider whether that guarantee embraced more basic skills than those necessary “to equip a child for his role as a citizen and as a competitor in the labor market.” Id.
*272The vast majority of this State’s children attend local, conventional public schools.2 This is the class of children with which Landis and Robinson I were concerned. The majority is unmindful of the focus of these decisions. It superimposes selected quotations from them on the present controversy without realizing that they examined only the rights of children whose educational needs were met by conventional schooling. In this case of first impression, the issue before us concerns the rights of those unfortunate children whose educational needs are not met by local schools that inculcate the virtues of citizenship and competition. Despite any limiting constitutional language, the majority erects a barrier to a free, thorough and efficient education that Linda Guempel and Maxwell Levine will never be able to pass. According to the majority, not only must a child be “between the ages of five and eighteen,” N.J.Const. (1947) Art. VIII, § 4, par. 1, he must be inherently capable of becoming an intelligent voter or an active competitor for wealth, status and power—the currencies of success in our economic order. Although Linda Guempel and Maxwell Levine will undoubtedly never vote, although they undoubtedly will never attain any wealth, power or social prestige, I believe, contrary to the majority, that the State Constitution guarantees to them an education.
The majority’s attempt to characterize its interpretation of the education clause as “self-vindicating,” see ante at 248 is unpersuasive. As a means for giving substance to a fundamental right, I view it rather as self-defeating. The majority’s approach ties the constitutional concept of “education” to a legislative definition of “educable.” To determine which children are not constitutionally entitled to an education, the majority exclusively relies on the stated “purpose” of education in N.J.S.A. 18A:7A-4 and the Legislature’s classification of men*273tally impaired children as “educable,” “trainable” or “eligible for day training,”3 N.J.S.A. 18A:46-9. This is judicial abdication. This Court rejected the temptation in Robinson I when it refused to accept the definition of an education inherent in a minimal level of local school funding. See 62 N.J. at 516; supra at 239-240. Today it has succumbed.
Allowing the Legislature—and by extension the Executive branch—to be the ultimate arbiters of constitutional values poses an evident danger to the children of this State. Political pressures can understandably cause officials who are accountable to the electoral process to ignore the pleas of their constitutional conscience. The permanence of any statutory or regulatory determination of who is entitled to a free education is illusory. This is the justification for constitutional judicial review.
There are others to give strong voice against violence to person and property, to proclaim social needs and to promote economic welfare. But there are few to deplore the deprivation of an individual’s liberty, and none other so clothed in the moral traditions of the rule of law. [State v. Sugar, 84 N.J. 1, at 12 (1980)].
In New Jersey, a free education is one of a child’s fundamental rights, part of our State Constitution’s conception of ordered liberty. The ultimate responsibility for ensuring legislative and executive compliance with this constitutional mandate is reposed with this Court. See Robinson v. Cahill, 69 N.J. 133, 147 (1975) (“Robinson IV”), cert. den. sub nom. Klein v. Robinson, 423 U.S. 913, 96 S.Ct. 217, 46 L.Ed.2d 141 (1975); Cooper v. Nutley Sun Printing Co., Inc., 36 N.J. 189, 196 (1961); Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 12 (1960); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164, 176-180, 2 L.Ed. 60, 69, 73-74 (1803). “However delicate”—or in this case, difficult, see ante at 252 —“that duty may be, we are not at liberty to *274surrender, or ignore, or to waive it.” Asbury Park Press, supra, 33 N.J. at 12. The majority has done just that.
There are other reasons why the majority’s reliance on the categories of educability in N.J.S.A. 18A.-46-9 is deficient. First, these categories were not intended to distinguish between children capable and incapable of benefitting from educational services. In the same statute the Legislature has provided for educational services for children in all these categories. See N.J.S.A. 18A:46-13, -18.1. It is no answer to say that the Legislature can grant educational rights that go beyond constitutional requirements. See ante at 254. Under the majority’s interpretation, the Legislature has provided for large expenditures of time, effort and resources to afford educational services to children completely incapable of benefitting from them. I do not believe the Legislature intended such a wasteful endeavor.
Second, although the majority has phrased the question before it as “whether the State Constitution’s free education clause * * * includes within its guarantee profoundly retarded institutionalized children,” see ante at 249, its use of the “eligible for day training” category to describe those children it considers uneducable denies the protection of the Constitution to children who are not institutionalized. All mentally impaired children classified as “eligible for day training” are now placed on the far side of a great divide. The consequences of misclassification are enormous, for the Legislature may at any time cut educational services to this class. The majority’s approach has turned a constitutional right into an arbitrary matter. Under present regulations one I.Q. point separates those “eligible for day training” from those “trainable” individuals who are entitled to a free education. See N.J.A.C. 10:44-10.3(bX5). Those who can score at least 25 on a designated I.Q. test are “children” for purposes of the Constitution. According to the majority, those who score up to 24 are something less. Although there are acknowledged difficulties in obtaining a reliable, quantitative assessment of intellectual ability, see e.g., 0. Kolstoe, Mental Retardation: An Educational Viewpoint 35 (1972); G. Blair, Educational Psychology 470 (ed ed. 1968), the majority sees no *275problem in drawing a thin, bright constitutional line with an “intelligence” test.
I have no quarrel with the majority that the education which children like Linda Guempel and Maxwell Levine can absorb is, even at their present ages, far less than that of the mentally average five-year-old. Nevertheless, I cannot accept a definition of education which does not provide to each child the training and assistance necessary to function as best they can in whatever will be their environment—even if that environment will be insulated from the world of politics and economic competition.4 The ability of even profoundly impaired children to benefit from education is universally acknowledged. See e.g., President’s Committee on Mental Retardation, Report to the President 8, 20 (1976); H. Switzky, et aI “The Developmental Model & Its Implications for Assessment & Instruction for the Severely/Profoundly Handicapped,” 17 Mental Retardation 167, 168 (1979). “[Tjhese unfortunate children,” see ante at 251, are entitled to more than our compassion. The rudimentary level of their education does not render it unworthy of constitutional protection. We cannot ignore the intellect a child possesses because he possesses so little. We cannot deny him the protection of our laws because there is almost nothing to protect.
“To me a meaningful opportunity to learn is the birthright of every New Jerseyan.” Robbiani v. Burke, 77 N.J. 383, 402 (1978) (Pashman, J., dissenting). The differences in the capacity to benefit from education among mentally impaired children are assuredly differences in degree. But because of their shared humanity, they cannot be considered differences in kind. I would therefore hold that “all children in the State between the ages of five and eighteen years,” regardless of the level of their intelligence, are constitutionally entitled to a free education. NJ.Const. (1947) Art. VIII, § 4, par. 1.
*276B
The inquiry does not end with the recognition of a constitutional right to a free education. The elements of that entitlement must still be assessed. As noted, I agree with the majority’s recognition of differing capacities among mentally impaired children; I also join in the Court’s acknowledgement of the dynamic nature of education. See ante at 248. Unlike the majority, however, I believe these factors determine the content of the educational services required, not whether any services are guaranteed. Thus plaintiffs and amici are correct in asserting not that mentally impaired children are entitled to the same education, but rather that every impaired child is entitled to an education appropriate to his abilities.
It is the initial responsibility of the Legislature to establish standards for the educational services the State must provide. See Robinson IV, 69 N.J. at 160 (Pashman, J., concurring and dissenting). The Legislature and those agencies to which it properly delegates authority “have broad discretion in defining those standards.” Id. Courts should generally respect the exercise of this discretion because they have “no special expertise in matters of educational policy * * *Id. In the Public School Education Act of 1975, L. 1975, c. 212, the Legislature has set out the elements of a thorough and efficient education. These are:
a. Establishment of educational goals at both the State and local levels;
b. Encouragement of public involvement in the establishment of educational goals;
c. Instruction intended to produce the attainment of reasonable levels of proficiency in the basic communications and computational skills;
d. A breadth of program offerings designed to develop the individual talents and abilities of pupils;
e. Programs and supportive services for all pupils especially those who are educationally disadvantaged or who have special educational needs;
f. Adequately equipped, sanitary and secure physical facilities and adequate materials and supplies;
g. Qualified instructional and other personnel;
h. Efficient administrative procedures;
i. An adequate State program of research and development; and
j. Evaluation and monitoring programs at both the State and local levels.
[N.J.S.A. 18A:7A-5]
*277This act also amended N.J.S.A. 18A:46-9, the statutory provision governing the classification of mentally impaired children. L. 1975, c. 212, § 39. As amended, that provision establishes three categories for such children: “educable,” “trainable,” and “eligible for day training.” Id. According to the act, “educable” and “trainable” children who are mentally impaired must receive “suitable facilities and programs of education” from local boards of education. N.J.S.A. 18A:46-13. For children classified as “eligible for day training,” it is the “duty of the State board [of education] in concert with the Department of Institutions and Agencies [now the Department of Human Resources, see L. 1976, e. 98, N.J.S.A. 30:1A-1] to provide suitable facilities and programs * * * L. 1975, c. 212, § 43, N.J.S.A. 18A:46-18.1. As amended by L. 1979, e. 207, § 16 (effective July 1, 1980), N.J.S.A. 18A:46-18.1, the Department must also provide transportation for children attending day training centers. Any doubt that the Legislature intended all three groups to receive a thorough and efficient education is resolved by the Developmentally Disabled Rights Act, L. 1977, e. 82, N.J.S.A. 30:6D-1 et seq. Section 5(e) of the act, N.J.S.A. 30:6D-5(c), provides that every disabled person—including every mentally impaired person, N.J. S.A. 30:6D-3(a)(l)(a)—between the ages of 5 and 21 who is in residence or full time attendance at any public or private facility shall be provided “a thorough and efficient education suited to such person’s age and abilities.” See also “The State Facilities Education Act of 1979,” L.1979, c. 207, § 9, N.J.S.A. 18A:7B-5. The majority is alone in declaring certain mentally impaired children to be uneducable, for it is clear the Legislature has not done so.
The facial validity of the Public School Education Act was determined in Robinson v. Cahill, 69 N.J. 449 (1976) (“Robinson V”). Plaintiffs here do not claim that their children are not receiving an appropriately thorough and efficient education. We therefore need not determine whether the services provided by the State in fact fall short of that necessary to develop the capabilities of the mentally impaired to function in their expect*278ed future environment. The question before us is whether the State must provide such an education free of charge. I conclude that the allowance of a $310 education deduction from the cost of maintenance of school-aged children in residential institutions does not amount to the provision of a free education.
Currently the deduction itself reflects only the salaries and fringe benefits for certified teachers and teaching supervisors, the cost of educational supplies and the servicing, repair and replacement of educational equipment.5 In seeking to sustain this method of computation, the State argues that no other services provided in residential facilities can be classified as education. It relies on the definition of “services” contained in the Developmentally Disabled Rights Act:
“Services” or “services for persons with developmental disabilities” means specialized services or special adaptations of generic services provided by any public or private agency, organization or institution and directed toward the alleviation of a developmental disability or toward the social, personal, physical, or economic habilitation or rehabilitation of an individual with such a disability; and such term includes diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, training, education, sheltered employment, recreation, counseling of the individual with such disability and of his family, protective and other social and socio-legal services, information and referral services, followalong services, and transportation services necessary to assure delivery of services to persons with developmental disabilities * * * [.N.J.S.A. 30:6D-3(b)].
According to the State, since education is listed separately as only one element of “services,” it cannot be thought to include any of the other enumerated services.
This contention must be rejected for two reasons. First, the focus of the Developmentally Disabled Rights Act is directed at providing complete habilitation services to persons of all ages, not merely those of school age. Its purpose was to ensure that the fundamental rights of the developmentally disabled were not relinquished by
*279admission to any facility or receipt of any service for developmentally disabled persons[.] * * * [S]ervices which are offered to the developmentally disabled shall be provided in a manner which respects the dignity, individuality and constitutional, civil and legal rights of each developmentally disabled person * * *. [N.J.S.A. 30:6D-2]
Thus, while the definitions of “services,” N.J.S.A. 30:6D-3(b), and facilities, id. at 30:6D-3(c), describe the full scope of the statute’s intended reach, they cannot be read to circumscribe the content of an appropriate education required by the State Constitution.
The second reason is that the State’s position is diametrically contrary to the mandate of N.J.S.A. 18A:7A-5 (quoted supra at 276). That provision clearly requires services other than those performed by certified teachers as part of a “thorough and efficient” education. See also N.J.A.C. 6:8-43 (staffing requirements of State Department of Education); New Jersey Department of Institutions and Agencies, Division of Mental Retardation, Standards for Public Institutions §§ 1.7.2.3, 4.2.5 (1973).
The State also points to the State Facilities Education Act of 1979, L.1979, c. 207, N.J.S.A. 18A:7B-1 et seq., as evidence that its limited educational deduction is appropriate. This argument is equally unpersuasive. According to the act’s legislative history, it is primarily a financing statute aimed at ensuring adequate funding to comply with the Public School Education Act and the federal Education for All Handicapped Children Act, 20 U.S.C.A. § 1401 et seq. See Senate Education Committee Statement to Assembly No. 86 (1979). It sets up a new scheme for paying the costs of educating children in residential facilities. Included within the services covered by the statute are classes in State facilities such as the Hunterdon State School and the North Jersey Training School, where Linda Guempel and Maxwell Levine, respectively, now reside. Section 6 of the act provides for direct payment of federal and state funds for children in such facilities to the State Department of Human Services rather than the local school district. N.J.S.A. 18A:7B-2. Section 8 provides as follows:
Funds received pursuant to this act by the Department of Human Services or by the Department of Corrections shall be used only for the salaries of teachers, educational administrators at the program level, child study team personnel, and *280paraprofessionals assigned to educational programs in State facilities, and for the costs of educational materials and supplies for these programs. No such funds shall be used for the renovation or construction of capital facilities, for the maintenance and operation of educational facilities, or for custodial, habilitation or other noneducational costs. [N.J.S.A. 18A:7B-4]
Two observations are in order. First, the State’s new accounting arrangement does not define or describe the content of a free and appropriately “thorough and efficient” education in State facilities. Such a reading would conflict with the Public School Education Act, which requires among other things adequate physical facilities. See N.J.S.A. 18A:7A-5(f); 18A:46-18.-1. Second, even if one were to assume that the statute specified the elements of a “thorough and efficient” education, the educational items listed in section 8 include many more services than those which form the basis for the $310 deduction.
If the present method of computing the cost which can be charged for residential, custodial care excludes only those items set out, supra at 278, it clearly violates the constitutional guarantee of a free education. The State asserts, however, that the $310 education credit does not represent the full amount of services supplied free of charge. This is because several types of expenses, including all those covered by federal grants, are not included in figuring the per capita costs of education and custodial care.
On the present record, it is impossible to determine the extent of any overcharge to the parents of Linda Guempel and Maxwell Levine.6 I therefore agree with the majority that both cases should be remanded for detailed administrative findings as to whether the institutions have charged for educational services which must, under the State Constitution and N.J.S.A. 18A:7A-5, be provided free.
II
The majority further errs by rejecting plaintiffs’ claims that they have been denied equal protection of the laws. Even *281assuming that none of the services provided Linda Guempel and Maxwell Levine are constitutionally required, charging institutionalized children for some of the same services which are provided free of charge at day training centers constitutes a violation of federal and State equal protection guarantees, U.S. Const.Amend. XIV; N.J.Const. (1947) Art. I, pars. 1, 5.
The majority has determined, erroneously in my view, that the educational services received by Linda Guempel and Maxwell Levine are within the legislative prerogative. Even if this constitutional judgment were correct, it would not necessarily lead to the application of minimal judicial scrutiny under principles of equal protection.7 A more exacting standard of review is required when a legislative classification is based on a “suspect class.” As we observed in Taxpayer’s Ass’n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6 (1976), app. dism. and cert. den. sub nom. Feldman v. Weymouth Tp., 430 U.S. 977, 97 S.Ct. 1672, 52 L.Ed.2d 373 (1977):
The label “suspect” attaches to the criteria for legislative classification which pose an exceptional danger of misuse to unfairly burdened classes of persons who share “immutable characteristics determined solely by accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583, 591 (1973); or who are otherwise “saddled with such disabilities, or subjected to such a history of unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,” San Antonio Independent School Dist. v. Rodriguez, supra, 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40; see generally, Johnson v. Robinson, 415 U.S. 361, 375 n.14, 94 S.Ct. 1160, 39 L.Ed.2d 389, 402-403 n.14 (1974). [80 N.J. at 38 n.15.]
See State v. Senno, 79 N.J. 216, 226-227 (1979). While mental impairment is not necessarily congenital, it is a natural disability which historically has been accompanied by discriminatory treatment and political powerlessness. See Burgdorf & Burgdorf, “A History of Unequal Treatment: The Qualifications of Handicapped Persons as a ‘Suspect Class’ under the Equal Protection *282Clause,” 15 Santa Clara Law. 855, 915 (1975); see also L. Tribe, American Constitutional Law, 1081 n.17 (1978). Recognizing this, the majority acknowledges that “persons afflicted with mental impairments might appear to qualify in a constitutional sense as a ‘suspect class.’ ” Ante at 259. See In re D. H., 218 N.W.2d 441, 446-447 (Sup.Ct.N.D. 1974). Yet the majority ignores this appearance and discounts entirely the presence of suspect criteria in the classification employed by the State. According to the majority, the classification in question is based “solely upon the circumstance of institutionalization * * Ante at 259 (emphasis added). The fact that only some of the handicapped children are involved does not eliminate the inherently suspect character of the classification. Discrimination against racial minorities, for example, would be no less invidious if confined to blacks over six feet tall. Cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Here the fact of institutionalization alone does not have any probative value as to the educability of a handicapped child. The level of intelligence—which the majority considers the indicator of educational capacity—is the same for all children who are “eligible for day training.” The use of “institutionalization” to determine the level of entitlement superimposes a facially neutral, but irrelevant, criteria on top of an otherwise discriminatory scheme. The accompanying use of legitimate criteria may partially conceal invidious discrimination, but it cannot justify it.
The conclusion that the classification here delineates a constitutionally “suspect class” would trigger strict judicial scrutiny. See, e.g., Robinson I, 62 N.J. at 491 (adopting federal approach to suspect classes); see also Salorio v. Glaser, 82 N.J. 482 (1980), appeal docketed 49 U.S.L.W. 3005 (U.S. June 23, 1980) (No. 79-2026). No compelling interest has been advanced by the State for providing fewer subsidized educational services to “eligible for day training” children who are institutionalized. Nor would the present scheme pass constitutional muster if the nature of the classification called for an intermediate standard of review. See, e.g, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Matthews v. City of Atlantic City, supra.
*283Even if the Legislature’s scheme for providing educational services did not involve an invidious classification, a stricter standard of review would be required because of the importance of what the Legislature has withheld from Linda Guempel and Maxwell Levine. The majority commits serious error in its assessment of the constitutional significance of education. The Court is correct in noting that the right to a free education is not a “fundamental” right for purposes of the federal equal protection clause, San Antonio Indep. Sch. Dist. v. Rodriguez, supra. However, the majority has completely disregarded our own precedents in blindly applying the entire federal approach as the appropriate analysis under our State Constitution. As Chief Justice Weintraub explained in Robinson I:
[W]e have not found helpful the concept of a “fundamental” right. No one has successfully defined the term for this purpose. Even the proposition discussed in Rodriguez, that a right is “fundamental” if it is explicitly or implicitly guaranteed in the Constitution, is immediately vulnerable, for the right to acquire and hold property is guaranteed in the Federal and State Constitutions, and surely that right is not a likely candidate for such preferred treatment. [62 N.J. at 491]
These words have not lost their validity. This court has only recently reaffirmed this analysis. Taxpayer’s Ass’n of Weymouth Tp. v. Weymouth Tp., supra.
These cases exemplify a more flexible approach to this type of equal protection analysis. Although the assumption underlying this discussion is that the educational services in question are strictly a matter of legislative prerogative, minimal scrutiny is not therefore appropriate.8 In concluding that it is, the majority has “glossed over the sliding scale approach which [Robinson I] and Weymouth mandate for the scrutiny of statutory classifications which impinge upon basic personal rights.” Robbiani v. Burke, supra, 77 N.J. at 399 (Pashman, J., dissenting).
Ultimately, a court must weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbi*284trary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial. [Robinson I, supra, 62 N.J. at 492]
Thus, where an important personal right is affected by governmental action, this Court often requires the public authority to demonstrate a greater “public need” than is traditionally required in construing the federal constitution. Specifically, it must be shown that there is an “appropriate governmental interest suitably furthered by the differential treatment.” [Weymouth, supra, 80 N.J. at 43 (citation omitted)]
The majority inexplicably rejects recent decisions of this Court and links State equal protection guarantee to federal standards. The majority’s approach is particularly ill-advised in view of the increasing and widely acknowledged dissatisfaction with the rigid “two-tier” analysis. See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188-189, 99 S.Ct. 983, 992-993, 59 L.Ed.2d 230, 244 (1979) (Blackmun, J., concurring); Craig v. Boren, 429 U.S. 190, 210-211 n.*, 97 S.Ct. 451, 463-464 n.*, 50 L.Ed.2d 397, 415 n.* (1976) (Powell, J., concurring); id. at 211-212, 97 S.Ct. at 464-465, 50 L.Ed.2d at 415-416 (Stevens, J., concurring); Dandridge v. Williams, 397 U.S. 471, 519-521, 90 S.Ct. 1153, 1178-1180, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting). See also Matthews v. City of Atlantic City, supra; Gunther, “The Supreme Court 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection,” 86 Harv.L.Rev. 1 (1972).
There is no question that education is an important personal right. It is of even greater importance to the mentally impaired who rely on education for instruction in the most basic of personal tasks. In my view, this fact necessitates greater governmental justification than some hypothesized rationale or a piecemeal approach. The State’s classification must be reasonably necessary to an important State objective. See Matthews v. City of Atlantic City; supra, 84 N.J. at 169.
Linda Guempel and Maxwell Levine have been denied the free education afforded their peers because they are institutionalized—not because they are uneducable. Under intermediate constitutional scrutiny, the State’s classification must fail for want of justification. Since the State presently provides educational services at private expense, it cannot claim that it denies *285a free education because of the inherent difficulties in training institutionalized children. According to the Developmentally Disabled Rights Act and section 39 of the Public School Education Act, there are no differences in the educational services the State shall provide, whether at public or private expense, to children who are institutionalized and those who are not. See supra at 276-278. Thus, the State’s only justification for refusing to pay for institutionalized education on an equal basis is a desire to conserve funds by granting educational subsidies “one step at a time.” This Court has rejected such a rationale when applying intermediate judicial scrutiny to the denial of important personal rights. See Matthews v. City of Atlantic City, supra, 84 N.J. at 173. The result should be no different here.
Even under the minimal judicial scrutiny employed by the majority, the present unequal provision of educational services violates federal and State guarantees. There is simply no rational relation between the fact of institutionalization and the denial of subsidies for the educational services provided. The majority’s statement that “[tjhere is a clear distinction between the educational services” provided institutionalized children and “those which are made available to the subtrainable children at day care centers,” ante at 260-261, is in flagrant and inexplicable disregard of the parties’ stipulations, the trial court findings in Guempel and State Department of Education regulations, see N.J.A.C. 6:28-10.5(d). The services provided are substantially the same. The fact that the hours during which these services are provided may not be the same does not in any way support charging for some and not for others.
Nor does the concept of “mainstreaming,” the benefits of which are so amply documented by the majority, ante at 261-262; see N.J.A.C. 6:28-2.2, support such disparate funding of educational services to similarly impaired individuals. The obligation to provide the least restricted educational environment rests with the State, not parents. I cannot conceive of allowing the State to charge parents of institutionalized children for educational services as a legitimate means to “encourage” ful*286fillment of its own obligation to “mainstream.”9 Finally, requiring parents of institutionalized children to pay for educational services does not in any way give “effect to the unquestioned moral obligation of parents to pay for the care of their children,” ante at 262. Only a requirement that parents pay for their child’s custodial care—which parents of children outside institutions provide at home—would be supported by such a rationale.
On grounds of equal protection, I would therefore require reimbursement to the parents for any charges for services provided free in day training centers. Unless the State can show that the provision of these same services in institutions costs less, they should be presumed to have a value of $5,500 per year—the amount stipulated by the parties as representing the value of day training services.
Ill
The majority concludes that the need for a remand renders unnecessary any discussion of plaintiffs’ federal statutory claims, since these will be resolved at the administrative level. I believe the following comments are warranted to guide the proceedings. Under federal regulations promulgated by the United States Department of Health, Education and Welfare pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794,
[i]f placement in a * * * residential program is necessary to provide a free appropriate education to a handicapped person because of his or her handicap, the program, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian. [45 C.F.R. § 84.33(c)(3)] 10
*287Parents may be required to pay for room and board only “[w]hen residential care is necessitated not by the student’s handicap but by factors such as the student’s home conditions * * *.” 45 C.F.R., Part 84, Appendix A at 23 (emphasis added).
Because plaintiffs’ children were placed in residential facilities prior to the promulgation of these federal standards, the present record does not indicate whether the reasons for their continued placement fall within the standards. I agree with the interpretation advanced by the Public Advocate as amicus, which requires public financing of the entire cost of residential placement whenever placement in a less restrictive environment is not possible. See 20 U.S.C.A. § 1412(5)(B); N.J.A.C. 6:28-2.2.
Contrary to the view of the trial court in the Guempel case, the State’s responsibility to finance residential placement under federal law is not limited to those placements which are “incidental to an educational program * * 159 N.J.Super, at 185. Many factors may combine to require placement. While “[i]t may be possible in some situations to ascertain and determine whether the social, emotional, medical, or educational problems are dominant” often “all of these needs are so intimately intertwined that realistically it is not possible * * * to perform the Solomon-like task of separating them.” North v. Dist. of Columbia Bd. of Ed., 471 F.Supp. 136, 141 (D.D.C.1979). If a child’s handicap requires institutional placement to provide an effective education, a precise diagnosis of the nature of his handicap is irrelevant to the State’s obligation under federal law to provide free care. This observation should guide the administrative proceedings ordered by the court.
Conclusion
For the foregoing reasons, I conclude that the State Constitution and federal law free plaintiffs from at least part of their statutory obligation to reimburse the State for the care and *288education of their children. I would remand both cases before us for an administrative determination of those facts that would support plaintiffs’ right to relief. Since the majority finds no such entitlement under our State Constitution, I respectfully dissent.
For modification and remandment—Justices SULLIVAN, SCHREIBUR, HANDLER and JACOBS—4.
For reversal—Justice PASHMAN—1.
The 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. (1947) Art. VIII, § 4, par. 1 (emphasis added)]
According to reported enrollment statistics on file with the Department of Education, as of September 28, 1979 there were 1,299,988 children attending public schools; 202,268 children attending private and parochial schools; and 4,027 school-age children in state facilities.
The majority repeatedly employs the term “subtrainable” for this third class of children, see, e. g., ante at 253, 254 & 258 but this is not the Legislature’s categorization. In fact, by amendment in 1975 the Legislature eliminated the words “neither educable nor trainable” from the description of the category. See L.1975, c. 212, § 39.
By including the “educable” and “trainable” categories within the reach of the education guarantee even if they are institutionalized, see ante at 251-253, the majority concedes that a restricted environment does not preclude a constitutional entitlement to education.
As the majority notes, this deduction procedure is not mandated by N.J.S.A. 30:4-66, which permits charges for “maintenance" based on ability to pay. The calculations for education are entirely an administrative matter. See ante at 242-243.
The fact that the Levines were not required to pay the full per capita cost of “maintenance” will be relevant in determining whether they in fact paid for any educational services.
I assume that the majority has concluded, contrary to State Board regulations, N.J.A.C. 10:28-10.5(d), that even as a matter of legislative prerogative the same free education need not be provided to all eligible for day training children. Otherwise, plaintiffs would be statutorily entitled to all educational services without cost, and the equal protection question would not arise.
Considered as a governmental service which is not constitutionally guaranteed, the “compelling state interest” test should not be applied. See Robinson I, supra, 62 N.J. at 496 (rejecting notion that “if the State decides that a service shall be furnished, the service should thereby become one of ‘fundamental right.’ ”). Cf. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 502 (1970).
The majority states that it is the parents who “place their children in residential institutions.” Ante at 263. This is inaccurate. That decision is made by the State. N.J.A.C. 10:46-1.1 et seq.
Since these regulations became effective on June 3, 1977, any charge for these items since that date would have been impermissible. The Education for All Handicapped Children Act has a similar provision, 20 U.S.C.A. *287§ 1412(2)(B); 45 C.F.R. § 121a.302, which was not effective until 1978. After that date, it would also apply.