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Judge Says NJ Failed in Funding School Construction


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CNBNews graphic file

The report also finds projected cost estimates inadequate

Yesterday, retired Judge Thomas Miller issued an 87-page report to the New Jersey Supreme Court concluding that the State has failed to provide the necessary assurances that it will continue to “seek and secure” funding for the Court-mandated school construction program.


The report is the most recent development in a motion filed in February 2021 by Education Law Center on behalf of plaintiff students in the landmark Abbott v. Burke school funding litigation. The class of students is seeking to compel Governor Phil Murphy’s administration to comply with prior Abbott rulings mandating state funding of all needed building improvements in 31 of New Jersey’s most intensely segregated and poorest school districts.


In December 2021, after the State failed to provide the Supreme Court with requested cost estimates for major capital projects prioritized in the Schools Development Authority’s (SDA) Statewide Strategic Plan, as well as emergent (health and safety) projects, the Court appointed Judge Miller to serve as Special Master “to conduct a detailed analysis regarding the status of the cost estimates of the remaining projects in the strategic plan, including any outstanding steps required to finalize the State's cost estimates for the emergent projects needed in Schools Development Authority districts, and other information as is relevant to the pending motion in aid of litigants' rights.”


After reviewing dozens of submissions from ELC and from the State, Judge Miller’s report found:


  • There is currently no ongoing or long-term mechanism for financing needed facilities projects in the SDA districts in future years, and the State’s current “pay as you go” strategy based on annual budget appropriations creates uncertainty that was not present when the program was funded through long-term bond financing.


  • Given the uncertainty created by the year-to-year funding cycle, the State has failed to provide the Court with adequate assurance or representation that it will continue to "seek and secure" funding on an ongoing basis.


  • The State has not provided adequate cost estimates for major capital projects in nine high priority school districts experiencing overcrowding identified in the 2022 Strategic Plan, nor more than a “very general” $5 billion estimate for an additional 50 aging school facilities in need of replacement. Judge Miller recommends that the State devise a mechanism to provide those estimates so the Court can determine the remaining “universe of need” to be addressed through the school construction program.


  • The State failed to provide the requested information concerning the cost and universe of potential emergent and capital maintenance projects needed in the SDA districts.


  • Since 2019, the State has recommended undertaking a Building Conditions Assessment Survey (BCAS) across all SDA districts, at a current cost of “approximately $30 million,” to obtain “dependable information” on facility needs. ELC supports this approach, but the State has offered no new information on the status, cost, and schedule for implementation of the BCAS.


“ELC appreciates Judge Miller’s effort to uncover the cost of meeting the needs of tens of thousands of students in overcrowded, dilapidated and dangerous school buildings in the SDA districts,” said Theresa Luhm, ELC Managing Director. “It’s time for the Murphy Administration and the Legislature to declare how they intend to meet that need beginning with the FY24 State Budget.”


Ms. Luhm added that the judge’s report reaffirms that the State has defaulted on its constitutional obligation to provide the safe and adequate physical environments essential for student learning, as ordered by the Supreme Court in 1998 and reaffirmed in subsequent rulings.