H.G. VS. KIMBERLY HARRINGTON (L-2170-16, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4546-16T4
H.G., a minor, through her
guardian TANISHA GARNER; F.G.,
a minor, through her guardian
TANISHA GARNER; E.P., a minor,
through his guardian NOEMI
VAZQUEZ; M.P., a minor,
through his guardian NOEMI
VAZQUEZ; F.D., a minor through
her guardian, NOEMI VAZQUEZ;
W.H., a minor, through his
guardian FAREAH HARRIS; N.H.,
a minor, through his guardian
FAREAH HARRIS; J.H., a minor,
through his guardian SHONDA
ALLEN; O.J., a minor, through
his guardian IRIS SMITH; M.R.,
a minor, through his guardian
IRIS SMITH; Z.S., a minor,
through her guardian WENDY
SOTO; D.S., a minor, through
his guardian WENDY SOTO,
Plaintiffs-Appellants,
v.
KIMBERLY HARRINGTON, in her
official capacity as Acting
Commissioner of the New Jersey
Department of Education; NEW
JERSEY STATE BOARD OF
EDUCATION; nominal defendant
NEWARK PUBLIC SCHOOL DISTRICT;
and nominal defendant
CHRISTOPHER CERF, in his
official capacity as
Superintendent of the Newark
Public School District,
Defendants-Respondents,
and
NEW JERSEY EDUCATION ASSOCIATION,
AMERICAN FEDERATION OF TEACHERS,
AFL-CIO, AFT NEW JERSEY, and the
NEWARK TEACHERS UNION,
Defendants/Intervenors-
Respondents.
Argued April 25, 2018 – Decided June 27, 2018
Before Judges Fuentes, Koblitz, and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-2170-16.
Kathleen A. Reilly (Arnold and Porter Kaye
Scholer LLP) of the New York bar, admitted pro
hac vice, argued the cause for appellants
(Tompkins, McGuire, Wachenfeld, and Barry,
LLP, and Kathleen A. Reilly, attorneys;
William H. Trousdale, Maximilian D. Cadmus,
Colleen Lima (Arnold and Porter Kaye Scholer
LLP) of the New York bar, admitted pro hac
vice, Kent Yalowitz (Arnold and Porter Kaye
Scholer LLP) of the New York bar, admitted pro
hac vice, and Kathleen A. Reilly, of counsel
and on the brief).
Richard E. Shapiro argued the cause for
intervenors-respondents New Jersey Education
Association (Zazzali, Fagella, Nowak,
Kleinbaum & Friedman, and Richard E. Shapiro,
LLC, attorneys; Richard E. Shapiro, Richard
A. Friedman, Kenneth I. Nowak, Flavio L.
Komuvas, and Steven R. Cohen, of counsel on
the brief).
Steven P. Weissman argued the cause for
intervenors-respondents American Federation
2 A-4546-16T4
of Teachers, AFL-CIO, AFT New Jersey, and the
Newark Teachers Union (Weissman and Mintz LLC,
attorneys; Steven P. Weissman, on the brief).
PER CURIAM
In this education matter, plaintiffs, twelve individual
Newark Public School students through their guardians, appeal from
a May 3, 2017 dismissal of their declaratory judgment complaint
based on a lack of standing and ripeness. We affirm because the
issues are not ripe for review.
I.
On November 1, 2016, plaintiffs filed a civil complaint for
declaratory and injunctive relief, alleging five causes of action
against defendants Kimberly Harrington, in her capacity as the
Acting Commissioner of the New Jersey Department of Education, and
the New Jersey State Board of Education (collectively "DOE").
Plaintiffs also sought relief against the Newark Public School
District and District Superintendent Christopher Cerf
(collectively "the District").1
1
At the time of the notice of appeal, Newark was a state-operated
school district. On February 1, 2018, the District returned to
local control. See Press Release, DOE Approves the Transition
Plan for Local Control in Newark Public Schools (December 21,
2017), http://www.state.nj.us/education/news/2017. The District,
however, still receives substantial state aid. DOE, Office of
School Finance, 2017-2018 K-12 State Aid School Districts,
http://www.nj.gov/education/stateaid/1718/district.pdf.
3 A-4546-16T4
In the first cause of action, plaintiffs asked the court to
enjoin the enforcement of two provisions of the Tenure Act,
N.J.S.A. 18A:28-1 to -18, which plaintiffs refer to as the "last-
in, first-out" (LIFO) provisions--N.J.S.A. 18A:28-10 and 18A:28-
12. N.J.S.A. 18A:28-10 requires the District to use seniority as
the exclusive factor when conducting a reduction in force (RIF)
of tenured teachers, or when re-staffing following a RIF, pursuant
to N.J.S.A. 18A:28-12. Plaintiffs alleged that "[t]his policy has
required, and will continue to require, Newark and other similarly
situated districts to retain ineffective teachers while laying off
effective teachers," depriving plaintiffs of the "thorough and
efficient education" guaranteed them under our Constitution. N.J.
Const. art. VIII, § IV, ¶ 1.
In the second cause of action, plaintiffs claimed that the
same statutes, as applied to them, violated their right to equal
protection under Article I, Paragraph 1 of the New Jersey
Constitution, because the statutes have disproportionately
affected students of color in areas of concentrated poverty,
thereby denying such students the opportunity to receive a thorough
and efficient education.
In the third cause of action, plaintiffs alleged that the
statutes violated their due process rights, also under Article I,
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Paragraph 1, by depriving them of their fundamental right to a
thorough and efficient education.
In the fourth cause of action, plaintiffs alleged that
enforcing the LIFO provisions in the District violated their rights
under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, by
depriving them of a thorough and efficient education.
The fifth cause of action sought a declaratory judgment under
the New Jersey Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -
62, finding the LIFO statutes unconstitutional as applied to
plaintiffs and students in similarly situated districts.
In December 2016, the American Federation of Teachers, the
AFL-CIO, AFT New Jersey, and the Newark Teachers Union
(collectively, "AFT"), and the New Jersey Education Association
(NJEA) successfully moved to intervene as defendants.
The DOE raised several affirmative defenses, including that
plaintiffs lacked standing, and that the claims were not ripe for
review. AFT and NJEA moved to dismiss the complaint in lieu of
filing answers, also on the basis of a lack of standing and
ripeness. The Law Division dismissed the complaint under Rule
4:6-2(e) due to a lack of standing and ripeness.
Each minor plaintiff attends one of the District's public
schools. Plaintiffs alleged the following facts in their
complaint. The District is failing to provide a high-quality
5 A-4546-16T4
education to its students, resulting in a graduation rate of just
over 69%, which is 20% lower than the statewide graduation rate.
The literacy rate for students in the District is in the bottom
25% of the State, and their mathematics proficiency rating is in
the bottom 10%. Only 50% of eighth graders meet the State's
minimum proficiency for literacy and only 40% also meet the minimum
standard for mathematics.
Plaintiffs placed the blame for these outcomes on the
District's retention of ineffective tenured teachers. Plaintiffs
relied on statistics published by the DOE, which tracks educator
evaluation data that schools submit pursuant to the Teacher
Effectiveness and Accountability for the Children of New Jersey
(TEACHNJ) Act, N.J.S.A. 18A:7-117 to -129. The Act requires school
districts to evaluate teaching staff annually with one of four
descriptors: ineffective, partially effective, effective, and
highly effective. N.J.S.A. 18A:6-123(b). The Act further empowers
the superintendent of a school district to bring tenure charges
against a teacher found ineffective in two consecutive annual
evaluations or partially effective in one evaluation and
ineffective in the next. N.J.S.A. 18A:6-17.3.
TEACHNJ was enacted in August 2012. Its goal
"is to raise student achievement by improving
instruction through the adoption of
evaluations that provide specific feedback to
educators . . . ." N.J.S.A. 18A:6-118(a). The
Legislature declared: "Changing the current
6 A-4546-16T4
evaluation system to focus on improved student
outcomes . . . is critical to improving
teacher effectiveness, raising student
achievement, and meeting the objectives of the
federal '[No Child Left Behind Act, 20 U.S.C.
§ 6301 to -7941] of 2001' . . . ." N.J.S.A.
18A:6-118(b).
[Pugliese v. State-Operated Sch. Dist. of City
of Newark, 440 N.J. Super. 501, 508 (App. Div.
2015).]
Plaintiffs lacked specific information about the number of
ineffective or partially effective teachers in particular schools,
due to confidentiality requirements. See N.J.S.A. 18A:6-121(d),
They cited DOE data reflecting that, in the 2013-2014 school year,
out of 2775 teachers in the District, 94 (3.4%) had been rated as
ineffective and 314 (11.3%) had been rated partially effective.2
Only 205 teachers were rated ineffective in the entire State,
meaning that, as of 2014, nearly 46% of the ineffective public
school teachers in New Jersey were employed by the District.
Plaintiffs compared these figures to the more affluent Summit
School District where none of its 337 teachers was rated as
ineffective or partially effective. Plaintiffs added that if a
RIF were to take place in both districts, only in Newark would
there be a risk that students would be placed with below-par
2
The AFT points out that in the 2015-2016 school year only 183
teachers in the District were rated partially effective and only
65 rated ineffective. DOE, Data,
http://www.state.nj.us/education/data/staff.
7 A-4546-16T4
teachers, because of the percentage of ineffective or partially
effective teachers in the District.
Plaintiffs further alleged that enrollment has declined in
the District, resulting in about $200 million in lost education
funding. While declining enrollment would ordinarily lead to a
RIF to make up for lost revenue, plaintiffs believe the District
has avoided a RIF of teachers in recent years specifically because
of the LIFO statutes.
Plaintiffs alleged that to avoid the consequences of RIFs and
the risk of having to remove less senior but nevertheless highly
effective teachers in favor of more senior ineffective teachers,
the District has "resorted to the harmful and unsustainable tactic
of keeping ineffective teachers on the district payroll," by
creating the Educators Without Placement Sites (EWPS) pool.
In the 2013-2014 school year, the EWPS pool included 271
teachers who were not placed in schools. About 70% of the teachers
in the EWPS pool had ten or more years of experience. Plaintiffs
alleged that maintenance of this pool has cost the District
millions of dollars annually.3
3
The total Newark public school budget for 2013-14 school year
was $1,017,400,000. Newark Public Schools, 2013-2014 Final Budget
& Hearing, http://www.nps.k12.nj.us/mdocs-posts/2013-2014-final-
budget-hearing/.
8 A-4546-16T4
According to plaintiffs, the District paid the EWPS teachers
about $22.5 million during the 2013-14 school year, even though
they did not have a permanent teaching position. In 2015, the
District began to "force place" these teachers in schools without
the principal's consent.
Because not everyone from the EWPS pool was placed, in the
following year, the District paid about $10 million to the teachers
remaining in the EWPS pool. If another RIF occurred, tenured
teachers in the pool might be retained while tenured teachers with
higher ratings but less experience might be removed. Plaintiffs
do not dispute that non-tenured teachers would and should be the
first to leave.
Plaintiffs alleged that this practice affects their ability
to obtain a thorough and efficient education, because, to comply
with the LIFO statutes, the District must either conduct a
"quality-blind" RIF and terminate effective teachers or, to avoid
that result, pay to preserve the EWPS pool and thereby divert
millions of dollars away from plaintiffs' education.
Moreover, plaintiffs asserted that "the specter of quality-
blind layoffs at the end of every school year serves to exacerbate
qualified teachers' reluctance to apply to work in districts like
Newark where the likelihood of layoffs is higher for new teachers,"
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and that, as a consequence, qualified candidates will instead seek
employment in other school districts.
Finally, plaintiffs alleged that the District's enforcement
of the quality-blind statutory scheme governing RIFs results in
the removal of quality teachers, lower test scores, lower high
school graduation rates, and reduced lifetime earnings for
plaintiffs and other students in Newark and "districts like Newark
throughout the State."
Superintendent Cerf attested that the District had brought
tenure charges against "more than 200 teachers" under the procedure
set forth in the TEACHNJ Act. N.J.S.A. 18A:6-17.3(a). Cerf
stated, however, that removing teachers through this process "is
a time-consuming and cost-intensive process that takes" years "and
cost[s] the [D]istrict more than $50,000."
In February 2014, in response to a "fiscal crisis" resulting
from declining enrollment, the District submitted an "equivalency
request" to the Commissioner pursuant to N.J.A.C. 6A:5-1.1 to -
1.7. These regulations authorize the Commissioner to approve an
application from a school district to "achieve the intent of a
specific rule through an alternative means that is different from,
yet judged to be comparable to or as effective as, those prescribed
within the rule." N.J.A.C. 6A:5-1.2. The District requested an
equivalency that, if approved, would allow it to consider teacher
10 A-4546-16T4
quality in addition to years of service when determining
"seniority" under N.J.A.C. 6A:32-5.1.4
According to the District's request, if it were to conduct a
RIF that strictly followed the seniority preference embedded in
the LIFO statutes and the administrative code, 75% of the
terminated teachers would have been rated as either effective or
highly effective and only 4% would be teachers who had been rated
as ineffective. Conversely, if the equivalency request were
granted and the District could consider teacher performance as a
criterion in conducting the RIF, then no highly effective teachers
would be removed, and 14% of removed teachers would be teachers
who had been rated ineffective. We were not informed of the status
of this request.
II.
The trial court dismissed the complaint, finding plaintiffs
lacked standing and the case was not ripe. We review a decision
to dismiss for failure to state a claim under Rule 4:6-2(e) de
novo. Stop and Shop Supermarket Co., v. Cty. of Bergen, 450 N.J.
Super. 286, 290 (App. Div. 2017). A claim is "ripe" only if "the
harm asserted has matured sufficiently to warrant judicial
4
Newark Public Schools, Overview of Equivalency Request:
Protecting Our Best Teachers During a Fiscal Crisis,
http://www.nps.k12.nj.us/wp-content/uploads/2014/08/
Overview_of_Equivalency_February_2014_FINAL.pdf.
11 A-4546-16T4
intervention." Trombetta v. Mayor of Atlantic City, 181 N.J.
Super. 203, 223 (App. Div. 1981). "[R]ipeness depends on two
factors: '(1) the fitness of issues for judicial review and (2)
the hardship to the parties if judicial review is withheld at this
time.'" Comm. to Recall Robert Menendez from the Office of U.S.
Senator v. Wells, 204 N.J. 79, 99 (2010) (quoting K. Hovnanian
Cos. of N. Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379
N.J. Super. 1, 9 (App. Div. 2005)). "A declaratory judgment claim
is not ripe for adjudication if the facts illustrate that the
rights or status of the parties 'are future, contingent, and
uncertain.'" Garden State Equality v. Dow, 434 N.J. 163, 189
(quoting Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super.
295, 302 (App. Div. 2005)).
Plaintiffs do not deny that the District has significantly
reduced tenured teachers rated ineffective or partially effective
based on TEACHNJ provisions allowing tenure charges to be brought
and resolved based on these evaluations.
Plaintiffs concede that the termination of non-tenured
teachers in a LIFO situation is beyond their complaint, and do not
provide the number or percentage of non-tenured teachers in the
District. Thus, a RIF might only affect non-tenured teachers, who
must be terminated first. The District is working through TEACHNJ
to reduce the number of ineffective or partially effective tenured
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teachers. It is entirely possible that, through the termination
of ineffective tenured teachers, and reeducation and
rehabilitation of others now rated ineffective or partially
effective, a RIF causing ineffective tenured teachers to teach
students while effective tenured teachers are removed may never
occur.
To the extent the District's resources could be better spent
elsewhere absent an EWPS pool of ineffective or partially effective
teachers, the expenditure does not raise an issue of constitutional
proportions.
Thus, the issue of LIFO ramifications should a RIF occur is
speculative and not ripe for review. We need not address the
standing issue.
Affirmed.
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