dissenting. While I wholeheartedly endorse the majority’s validation of N. J. 8. A. 18A:33-4, I dissent from its refusal to affirm those parts of the decisions below which strike down N. J. S. A. 18A:33-5. That statute’s exemption of schools where less than 5% of the pupils are sufficiently needy to meet the eligibility requirements for a free or reduced price lunch is a blunderbuss approach to economy. The statutory exception is plainly irrational when scrutinized in the light of the overall goal of the school lunch program — the feeding of needy children.1 Moreover, it flies in the face of the applicable federal regulation, 7 *397C. F. R. § 210.5a(b) (5) (ii), which directs the priority of the school lunch program to “schools in areas with a high concentration of needy children.”
Under the formula employed in N. J. S. A. 18A:33~5, a school of 1,000 students with 49 needy children need not supply free or reduced price lunches while a school of 100 students with 5 such children must supply lunches.2 The *398above example demonstrates the fallacy of the majority’s reasoning that N. J. 8. A. 18A :33-5 “bears a rational relationship to the purpose of the act, that being conceived as the provision of low cost lunches to school children generally, with some fiscal leeway as to schools where the concentration of needy children is least.” See ante at 391. To reasonably meet the above stated purpose of the act, the statutory exemption would have to deal with actual numbers of eligible pupils and not mere percentages.
The pure rational basis test indulged in by the majority is singularly inappropriate in this context. The right to a thorough and efficient education is fundamental in New Jersey. N. J. Const. (1947), Art. VIII, §4, par. 1 reads as follows:
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, (emphasis added)
Surely any legislative differentiation which unreasonably reduces the opportunity of some children to learn is inherently suspect. Even the rationale of the United States Supreme Court in San Antonio School District v. Rodriquez, 411 U. S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), where it was held that differences in per-pupil expenditures do not necessarily establish an inequality of educational opportunity, would dictate an affirmance in this case. There, Justice Powell’s majority opinion noted that *399The classification in N. J. 8. A. 18A:33-5 is precisely tailored to impact upon poor children in schools where they comprise a minority. The insidiousness of the deprivation is all the more patent in this context. More fortunate, well-nourished classmates who make up the vast majority of the student body at these schools will have an unfair advantage in academic endeavors over these poor children who qualify for free or reduced price lunches but are denied them because of their insufficient number.
*398[I]n support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage, of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts.
[411 U. S. at 22-23, 93 S. Ct. at 1291, 36 L. Ed. 2d at 36-37]
*399I do not believe that the exemption provision can withstand the test of Taxpayer Ass’n of Weymouth Tp. v. Weymouth Tp., 71 N. J. 249, 281-287 (1976), cert. den. 430 U. S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977) for the reasonableness of legislative classifications. The majority has glossed over the sliding scale approach which Robinson v. Cahill, 62 N. J. 473 (1973) cert. den. 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973) and Weymouth mandate for the scrutiny of statutory classifications which impinge upon basic personal rights.
* * * [m] echanical approaches to the delicate problem of judicial intervention under either the equal protection, or the due process clauses may only divert a court from the meritorious issue or delay consideration of it. Ultimately, a court must weigh the nature of the restraint or the denial aganist the apparent public justification, and decide whether the State action is arbitrary. 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. * * *
[62 N. J. at 492; emphasis added]
* * *■ [w]here 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.” [citations omitted] Even under more traditional approaches, Eew Jersey has always required a real and substantial relationship between the classification and the governmental interest which it purportedly serves, [citations omitted]
[71 N. J. at 286-287; emphasis added]
*400The public need for a limited saving of funds is not nearly so compelling as is the need of these unfortunate children for all reasonable societal assistance which will help them have a fair chance in life.
The excuse of scarce resources did not prevail in Robinson v. Cahill, supra, and should not succeed here. In Robinson we held that the amount of per-pupil expenditures required to provide a thorough and efficient education for each child was a minimal requirement for all children.
The trial court found the constitutional demand had not been met and did so on the basis of discrepancies in dollar input per pupil. We agree. We deal with the problem in those terms because dollar input is plainly relevant and because we have been shown no other viable criterion for measuring compliance with the constitutional mandate. The constitutional mandate could not be said to be satisfied unless we were to suppose the unlikely proposition that the lowest level of dollar performance happens to coincide with the constitutional mandate and that all efforts beyond the lowest level are attributable to local decisions to do more than the State was obliged to do.
[62 N. J. at 515-516]
Furthermore, I agree with Judge Frankel’s suggestion in Justice v. Board of Education, 351 F. Supp. 1252 (S. D. N. Y. 1972), that the denial of free or reduced price lunches in some schools which have eligible children would deny them equal protection where other schools in the same district take part in the National School Lunch Act, 42 U. S. C. § 1751 et seq., and feed similarly situated children.
While this is determined as a nonconstitutional matter, it is fitting to recognize that constitutional rumblings are in the near background. Mount Vernon’s arrangements might get by if the test of equal protection were the only issue. They might . . . but it is fair to say that the question would be one of substance. Glaring inequalities in the dispensation of elemental necessities within a single city — indeed, within single families — surely trigger arresting thoughts about the limits of permissible discriminations. The explanation — about available “facilities” and budgetary strains — might turn out to seem rational enough, but it is scarcely compelling. It is at best depressing to hnoro that everyone's desire to nourish *401children may founder upon such obstacles — in a country that has knotvn how to feed adults in murderous pursuits on unpaaifie atolls, in jungles, on deserts, at sea, and in space. Without reaching them for decision, we may recognize that plaintiffs’ constitutional claims are neither frivolous nor immaterial on the subject of statutory interpretation.
[351 F. S.upp. at 1261-1262; emphasis added; footnote omitted]
In this case I have reached the equal protection issue and have found that there is no compelling reason to deny a reduced price or free lunch to any child made eligible due to the poverty of his or her family.
The majority takes comfort in the fact that only a small percentage of needy children go unfed. See ante at 389, n. 3. This fact is of little relevance if a child’s ability to learn is directly related to his not suffering from hunger and malnutrition, as it undeniably is. The Court hides behind traditional views of judicial restraint in avoiding the question of whether being fed a minimal amount of nutritional food is required for one to have a reasonable opportunity to learn. I for one do not need an appellate brief and oral argument to persuade me that hungry children do not learn very well. See Justice v. Mount Vernon Bd. of Ed., supra, 351 F. Supp, at 1257; Final Report, White House Conf. on Food, Nutrition and Health at 46. In Justice, supra, Judge E'rankel made the following pertinent observation:
Two distinguished scholar-scientists, submitting unquestioned affidavits for the plaintiffs before us, make vivid what we all know when they report that the miseries of hunger lead to listlessness, irritability, other emotional ills, and a generally diminished ability to profit from either education or the world’s other opportunities.
[351 F. Supp. at 1257; emphasis added]
The need of a minimally balanced diet is clearly a necessity for proper concentration and the ability to learn. I would hold that guaranteeing all children the opportunity to be served at least one balanced meal per day at school is required as one of the minimal elements of a thorough and *402efficient education for all children. To me, this is self-evident. The statutory scheme goes far to ensure that most needy children will receive this benefit; its invidious denial thereof to a small minority of those children is totally unreasonable.
Moreover, looking at this problem from a purely economic view leads to the inevitable conclusion that the exemption is irrational. Education is a prerequisite to earning a living and meaningful membership in American society. While a college degree may not be a mandatory requirement for the good life, an intelligent awareness of the workings of modern society and the fundamentals of reading, writing and mathematics 'certainly are minimum preconditions to a successful career today. In Robinson v. Cahill, supra, we held that a thorough and efficient education represented that “educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor an the labor market.” 62 N. J. at 515. Hungry children are denied such an opportunity.
The majority closes its eyes to the fact that this is a “pay some now ox pay more later” proposition. Most hungry children who are not permitted to achieve a thorough and efficient education will not succeed as adults and will be condemned to the vicious cycle of poverty which exists in this country. The long-term cost to society in providing for those unfortunates who have been derailed from the track of successfully coping with life’s challenges will far exceed the cost of providing this lunch program. I would prefer to give less fortunate children a fair chance to succeed through the opportunity to gain an education. To me a meaningful opportunity to learn is the birthright of every New Jerseyan.
Moreover, I agree with the courts below that N. J. S. A. 18A:33-5 is severable from N. J. S. A. 18A:33-4. The mere fact that the School Lunch Act, L. 1974, c. S3 failed by a 3-2 vote to make it through the Senate Education Committee until the exemption section was added is not dis-positive. The trend in recent years has been for courts to uphold legislation where a generally valid act has an invalid *403provision or exception. See Mitchell v. Mobile County, 313 So. 2d 172, 175 (Ala. Sup. Ct. 1975); In re Kapperman, 11 Cal. 3d 542, 114 Cal. Rptr. 97, 522 P. 2d 657, 662 (1974); State v. Watkins, 259 S. C. 185, 191 S. E. 2d 135, 144 (1972); Carr v. Campbell Soup Co., 124 N. J. Super. 382, 388 (App. Div. 1973); Percival v. City of Philadelphia, 12 Pa. Cmwlth. 628, 317 A. 2d 667, 672-674 (Pa. Cmwlth. Ct. 1974), vacated on other grounds, 464 Pa. 308, 346 A. 2d 754 (1975). Moreover, “[t]here is less reluctance to reach this kind of result . . . when the repugnant limiting provision was added 'by way of amendment during the course of enactment because of the fact that the bill was originally introduced without it furnishes some support for the view that the offending limitation is not essential to the successful operation of the legislation.” 2 Sutherland, Statutory Construction, § 44.13 at 359 (Sands ed. 1973); Carr v. Campbell Soup Co., supra. See also Lynden Transport, Inc. v. Alaska, 532 P. 2d 700, 715 (Alaska Sup. Ct. 1975); Hayes v. Superior Court of San Bernardino County, 6 Cal. 3d 216, 98 Cal. Rptr. 449, 453, 490 P. 2d 1137, 1141 (Cal. 1971), app. dismissed 406 U. S. 940, 95 S. Ct. 2048, 32 L. Ed. 2d 328 (1972).
I can only conclude that had the Legislature been forced to choose, in the final analysis, between requiring lunch for all needy children or for no needy children, it would have fed all of those children. The trial court was correct in concluding that the purpose behind the Act was the feeding of children and that notwithstanding the negative Senate Education Committee vote, enactment without the exemption section would have occurred. Moreover, the Legislature has announced a general policy that any provision in Title 18A should be severable in preference to permitting a whole Act to fall.
If any provision of any section, article, subarticle, chapter or title of this law shall be adjudged by any court of competent jurisdiction to be ineffective, such determination shall not affect or impair the remaining provisions thereof but shall be confined in its opera*404tion to the provisions directly involved in a controversy in which said determination shall have been rendered.
IN. J. S. A. 18A :76-2]
Thus, I would affirm the lower courts iu full and giv© all needy children the benefit of the salutary intent behind N. J. S. A. 18A :33-4. This disposition would be consistent with the principal object of the statute far more than would invalidating the act as a whole, which would totally deny the intent of the Legislature. In Affiliated Distiller Brands Corp. v. Sills, 60 N. J. 342, 345 (1972), we held that “[s^everability is a question of legislative intent. That intent must be determined on the basis of whether the objectionable feature can be excised without substantial impairment of the statute.” See Inganamort v. Borough of Fort Lee, 72 N. J. 412, 422 (1977). “Courts will enforce severability where the invalid portion is independent and the remaining portion forms a complete act within itself.” Inganamort, supra at 423. I find that N. J. S. A. 18A :33-5 is severable from the School Lunch Act and that N. J. S. A. 18A :33-4 is capable of standing alone as a fully independent statute.
Schreiber, J., dissenting in part and concurring in part. Critically involved in this case are the rights of school children, who, though eligible for free or reduced-price lunches, are deprived of those lunches because they are enrolled in schools in which they number less than 5% of the total enrollment. “Hunger has no regard for the school attended.” Richmond Welfare Rights Organization v. Snodgrass, 525 F. 2d 197, 201 (9th Cir. 1975). Before approving such a classification, the Court should explore the Legislature’s constitutional duty under Art. VIII, § 4, par. 1 of the New Jersey Constitution which directs that:
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 this State between the ages of five and .eighteen years. [Emphasis supplied]
*405When in 1974 the Legislature passed N. J. 8. A. 18A:33-4 providing that each school district shall make free and reduced-price lunches available to all children qualifying under statewide eligibility criteria, it must have been aware of three factors, (1) the federal funds which would be available to assist in the financing, (2) the field experience of the federal program, and (3) its constitutional obligation to the- school ¡children in this State.
The Legislature undoubtedly found that in 1946 Congress enacted the National School Lunch Act “to safeguard the health and well-being of the Nation’s children.” 42 U. S. C. A. § 1751 et seq. The scheme- of the Act -contemplated a matching fund program with states which chose to meet minimum nutritional requirements of needy school children. After 20 years experience Congress passed the Child Nutrition Act of 1966, 42 U. S. C. A. § 1771 et seq., in which it recognized “the demonstrated relationship between food and good nutrition and the capacity of children to develop and learn, based on the years of cumulative successful experience under the national school lunch program * * 42 U. S. C. A. § 1771. Congressional understanding of the importance of adequate nutrition for school children is further reflected in the following comment made by YieePresident (then Senator) Mondale during deliberations on 1972 amendments to the National School Lunch Act:
If we bad to make a eboice between textbooks and nutrition,- it would be wiser to forego tbe textbooks and feed the children so- that they would be capable of learning. [116 Cong. Rec. 4409 (1970)]
It is small wonder then that our Legislature recognized the importance of assuring every needy school child an opportunity to be served at least one- balanced meal per day at school. Furthermore, in asserting that requirement in the public school educational program, .the Legislature could not have been unaware of its 'Constitutional responsibility. In 1973 Chief Justice Weintraub had reminded all *406in Robinson v. Cahill, 62 N. J. 473, cert. den. 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973) (Robinson I), that it was the State’s obligation “to maintain and support a thorough and efficient system of free public schools,” 62 N. J. at 509, and that it was the State which “must define in some discernible way the educational obligation.” Id. at 519.
We have previously acknowledged that a multitude of factors in addition to dollars expended per pupil
play a vital role in the educational result — to name a few, individual and group disadvantages, use of compensatory techniques for the disadvantaged and handicapped, variation in availability of qualified teachers in different areas, effectiveness in teaching methods and evaluation thereof, professionalism at every level of the system, meaningful curricula, exercise of authority and discipline, and adequacy of overall goals fixed at the policy level. Hence while funding is an undeniable pragmatic consideration, it is not the overriding answer to the educational problem, whatever the constitutional solution ultimately required. [Robinson v. Cahill, 69 N. J. 133, 141 n. 3 (1975) (Robinson IV) ]
The components of a thorough and efficient education are not static. Eor example, in the late nineteenth century, secondary schooling was not generally available and for that reason was not deemed an attribute of a thorough and efficient system of public schooling. See Landis v. Ashworth, 57 N. J. L. 509, 512 (Sup. Ct. 1895). Today, a high school education is an integral part of a thorough and efficient public educational system. Chief Justice Weintraub pointed out this developing aspect of a thorough and efficient system when he wrote:
The Constitution’s 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. [Robinson I, supra, 62 N. J. at 515]
We may presume that when the Legislature, cognizant of the empirical data that hunger and proper nutrition are directly related to a child’s educational opportunity, enacted *407N. J. 3. A. 18A :33-4, which required that free and reduced-price school lunches be available to all children who qualified under statewide eligibility criteria, it was acknowledging another element in the definition of a thorough and efficient system of instruction.
However, that system of instruction must be made available to all on the same basis. It is significant that the Chief Justice in Robinson 1 quoted approvingly the following language from Landis v. Ashworth, supra, referring to the constitutional requirement:
Its purpose was to impose on the legislature 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; and such provision our school laws would make, if properly executed, with the view of securing the common rights of all before tendering peculiar advantages to any. [57 N. J. L. at 512 (quoted at 62 N. J. at 514) ; emphasis supplied]
Provision of this indispensable educational attribute to only those needy pupils who attend schools in which 5% or more of the students are eligible for a free or reduced-price lunch conflicts with the constitutional mandate that the system be established for "all” the children.
The majority correctly states that, although the complaint alleged that the 5 % exemption contravened the thorough and efficient requirement in our Constitution, the issue has not been briefed nor the record fully developed. However, the consequences to the excluded children are so serious that we would be remiss indeed if we did not face up to the issue. Accordingly, I would remand the cause to enable the parties to present whatever relevant evidence they desire on this question.
For reversal — Chief Justice Hughes, Justices Clieeord and Handler and Judge Coneord — 4.
For affirmance — Justices Sullivan and Pashman — -2.
For remandment — Justice Schreiber — 1.
The following chart indicates the wide scope of the school Innch program in this State. Nearly 40% of the eligible students in our schools take part in the lunch program. Presumably, many others bring their own lunch and buy milk and/or dessert. Of the participating students, nearly 50% are eligible for free of reduced price lunches. This group comprises over 22% of the total number of students eligible to take part in the school lunch program.
*397October 1977 October 1977 February 1978
Type of Lunch Eligible Participating Participating Students Students Students
Paid 1,044,203 280,931 276,628
Reduced 52,789 30,935 31,440
Free 285,204 236,743 242,922
Total 1,382,196 548,609 550,990
The chart below shows how small the cost to the State is when compared to the federal subsidy.
Plaintiff’s complaint lists some interesting from surveys by several Boards of Education, notes some of the most flagrant differences for year between numbers of eligible students in schools. figures which resulted The following chart the 1975-1976 school covered and exempted
*Denotes school required to provide reduced The other two schools were exempted by N. price or free lunches. J. S. A. 18A :33-5.
Two points are apparent. First, the present scheme disproportionally impacts on small schools. Second, in many eases schools with large numbers of undernourished children are no.t compelled to provide lunches for them at a reduced price or free of charge, even though the actual number of hungry children is substantial.