ABBOTT BY ABBOTT v. Burke

The opinion of the Court was delivered by

Our Constitution mandates 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 the State between the ages of five and eighteen years.” N.J. Const, art. VIII, § 4, ¶ 1. This decision explains the remedial measures that must be implemented in order to ensure that public school children from the poorest urban communities receive the educational entitlements that the Constitution guarantees them.

The required remedial measures incorporate many of the recommendations made by Judge Michael Patrick King pursuant to the remand ordered by this Court in Abbott v. Burke, 149 N.J. 145, 693 A.2d 417 (1997) (Abbott IV). These measures are based on a solid evidentiary record that was fully informed by the views and recommendations of the Commissioner of the Department of Education, expert and knowledgeable witnesses offered by both parties, and the Special Master. Most important, the educational programs to be implemented through these remedial measures *490 comport substantially with the statutory and regulatory policies that define the constitutional thorough and efficient education.

Disputes inevitably will occur and judicial intervention undoubtedly will be sought in the administration of the public education that will evolve under these remedial standards. Nevertheless, because of the Commissioner’s strong proposals for educational reform and the Legislature’s clear recognition of the need for comprehensive substantive educational programs and standards, we anticipate that these reforms will be undertaken and pursued vigorously and in good faith. Given those commitments, this decision should be the last major judicial involvement in the long and tortuous history of the State’s extraordinary effort to bring a thorough and efficient education to the children in its poorest school districts.

I

The first round of this generational struggle commenced in 1970 when students in poor urban school districts brought suit to enforce the New Jersey Constitution’s educational guarantee. Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (Law Div. 1972). In successive decisions, this Court found that the system of public school funding then in place was unconstitutional. See Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973); Robinson v. Cahill, 63 N.J. 196, 306 A.2d 65, 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 v. Cahill, 69 N.J. 133, 351 A.2d 713, cert. denied 423 U.S. 913, 96 S.Ct. 217, 46 L. Ed.2d 141 (1975). The Legislature responded by enacting the Public School Education Act of 1975 (1975 Act), L. 1975, c. 212 (codified at N.J.S.A. 18A:7A-1 to -33 (repealed)), which this Court found to be facially constitutional. Robinson v. Cahill, 69 N.J. 449, 355 A.2d 129 (1976); Robinson v. Cahill, 70 N.J. 155, 358 A.2d 457 (1976); Robinson v. Cahill, 70 N.J. 464, 360 A.2d 400 (1976).

The second round of the struggle commenced in 1981, when public school students from Camden, East Orange, Irvington, and *491 Jersey City challenged the constitutionality of the 1975 Act as applied. The Court remanded the case for an Administrative Law Judge to develop an evidentiary record to demonstrate the existence, nature and extent of the educational deficiencies in the poor urban school districts. Abbott v. Burke, 100 N.J. 269, 301-02, 495 A.2d 376 (1985) (Abbott I). That hearing confirmed that the districts were not providing the constitutionally mandated thorough and efficient education and that the 1975 Act and its funding were unconstitutional as applied to those districts. Abbott v. Burke, No. EDU 5581-88 (OAL 1988). The Commissioner and the State Board of Education disagreed. The Court, on direct appeal, reversed the State Board’s decision and declared the 1975 Act unconstitutional as applied to the State’s twenty-eight poorest urban districts (special needs districts, SNDs, or Abbott districts). Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990) (Abbott II). As a remedial measure, the Court ordered that the 1975 Act be amended or new legislation be passed to ensure substantial equality in funding between the special needs districts and the property-rich districts. Id. at 385, 575 A.2d 359. The Court required that the level of funding “be adequate to provide for the special educational needs of these poorer urban districts” and “address their extreme disadvantages.” Ibid. The Court also determined that special programs and services were required in the special needs districts. Id. at 386, 575 A.2d 359.

The Legislature then enacted the Quality Education Act of 1990. L. 1990, c. 52 (codified at N.J.S.A. 18A:7D-1 to -37 (repealed)). The Court, in 1994, found that statute unconstitutional as applied to the special needs districts because it failed to ensure parity of educational spending. Abbott v. Burke, 136 N.J. 444, 451, 643 A.2d 575 (1994) (Abbott III). The Court also found that contrary to the Court’s determination in Abbott II and in disregard of a specific legislative directive, L. 1991, c. 259, § 2, the Commissioner did not address the supplemental programs that were needed to assist disadvantaged students. The Court reiterated its conclusion from Abbott II that achievement of educational success in the SNDs would not occur until such supplemental programs and *492 services were identified and implemented. Abbott III, supra, 136 N.J. at 454, 643 A.2d 575.

In response to Abbott III, the Legislature, in 1996, passed the Comprehensive Educational Improvement and Financing Act (CEIFA). L. 1996, c. 138 (codified at N.J.S.A. 18A:7F-1 to -34). Plaintiffs challenged the new legislation. The Court found CEI-FA to be facially constitutional in its adoption of substantive standards, referred to as “Core Curriculum Content Standards” (CCCS), that served to define a thorough and efficient education. Abbott IV, supra, 149 N.J. at 168, 693 A.2d 417. However, the Court found CEIFA to be unconstitutional as applied to the SNDs because the statute failed to guarantee sufficient funds to enable students in those districts to achieve the requisite academic standards, id. at 174, 693 A.2d 417; because CEIFA’s supplemental programs, 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, were not based on a study of the students’ actual needs or the costs of meeting those needs, id. at 180, 693 A.2d 417; and because the statute failed to address the facilities problems of the SNDs, id. at 186, 693 A.2d 417.

At that point, sixteen years after the start of the Abbott litigation, the Court found that the continuing constitutional deprivation had persisted too long and clearly necessitated a remedy. Id. at 201-02, 693 A.2d 417. While recognizing that increased funding for regular education in the SNDs was not sufficient to remedy the educational deficiencies in those districts, we mandated, as an interim remedy, that the State provide parity funding for each SND for the 1997-1998 school year. Id. at 189, 693 A.2d 417. The Court also directed that firm administrative controls accompany this increased funding to ensure the money was spent effectively and efficiently. Ibid.

The Court then remanded the case to the Superior Court, Chancery Division, to determine what judicial relief was necessary in order to address the need for supplemental programs and facilities improvements in Abbott districts. Id. at 224r-26, 693 *493 A.2d 417. Accordingly, the Court authorized the Superior Court to direct the Commissioner

to initiate a study and to prepare a report with specific findings and recommendations covering the special needs that must be addressed to assure a thorough and efficient education to the students in the SNDs. That report shall identify the additional needs of those students, specify the programs required to address those needs, determine the costs associated with each of the required programs, and set forth the Commissioner’s plan for implementation of the needed programs. In addition, the Superior Court shall direct the Commissioner to consider the educational capital and facility needs of the SNDs and to determine what actions must be initiated and undertaken by the State to identify and meet those needs,

[Id at 199-200, 693 A.2d 417 (footnote omitted).]

The Court also authorized the Superior Court to appoint a Special Master to assist in the proceedings and in that court’s review of the recommendations of the parties. Id. at 200, 693 A.2d 417.

Judge King, a presiding judge of the Appellate Division, was temporarily assigned to the Chancery Division to conduct the remand proceedings. Consistent with the Court’s authorization, Judge King designated Dr. Allan Odden, a professor at the University of Wisconsin-Madison, as Special Master.

At the direction of the Superior Court, both parties submitted reports on and recommendations concerning supplemental programs, facilities needs, and implementation. The Superior Court then conducted hearings on the proposals. Following those hearings, Dr. Odden submitted a report focusing on special needs programs. See Appendix II at 636-663, 710 A.2d at 527-541. Both parties responded to that report.

On January 22, 1998, Judge King issued his report and recommendation. See Appendix I at 529-636, 710 A.2d at 474-527. After reviewing the different proposals put forth by the parties, he recommended that the following programs be implemented: whole-school reform, full-day kindergarten for five-year-olds, full-day pre-kindergarten for four- and three-year olds, summer school, school-based health and social services, an accountability system, and added security. App. I at 607-613, 710 A.2d at 512-515. The Court now addresses those recommended reforms and other proposed remedial measures.

*494 II

The Commissioner proposed that elementary schools in the Abbott districts undergo “whole-school reform,” a comprehensive approach to education that fundamentally alters the way in which decisions about education are made. A school implements whole-school reform by integrating reform throughout the school as a total institution rather than by simply adding reforms piecemeal. If carried out successfully, whole-school reform affects the culture of the entire school, including instruction, curriculum, and assessment. The reform covers education from the earliest levels, including pre-school, and can be particularly effective in enabling the disadvantaged children in poor urban communities to reach higher educational standards.

A.

The Commissioner’s recommended version of whole-school reform for elementary schools is Success For All (SFA), a nationally proven program that addresses the reading deficits of low-income, at-risk public school children. SFA was one of five different research-based whole-school reform models considered by the Commissioner. According to the Commissioner’s proposal, a school could adopt one of the other four models approved by the Commissioner if it could show convincingly that the alternative model it chose would be equally effective and efficient as SFA or that the model was already in place and operating effectively.

SFA has two different components. The primary component is called “Success for All,” a program that focuses on reading, writing, and language arts. The second component, “Roots and Wings,” concentrates on mathematical skills and problem solving, science, social studies, music, art, and programs for the gifted. 1

*495 SFA strives to ensure that, as each student moves from preschool through elementary school, he or she reads at the appropriate level. For ninety minutes each day, students are put in reading groups of fifteen that are organized according to reading level, regardless of age or grade. For first through third graders who are having trouble with reading, SFA includes an additional daily twenty-minute one-on-one tutoring session; for students in higher elementary grades, SFA includes a daily group tutoring session composed of slightly larger groups. Children are assessed every eight weeks to determine their progress and their need for the extra tutoring session.

According to Dr. Robert Slavin, SFA’s founder and the State’s expert, one of the benefits of SFA is “neverstreaming,” the process whereby the school “tr[ies] to prevent children from needing special education for reading disabilities.” The theory behind the process is that SFA’s high-quality, intensive reading program will allow children with poor reading skills but otherwise normal intelligence to succeed in reading, whereas in the past they might have been classified as learning disabled solely on the basis of their language skills. Neverstreaming does not apply to all categories of special education. There are categories of special education students, ie., the severely disabled, for which special education services would be provided in the usual way. According to the Assistant Commissioner for Finance in the DOE, some districts “may choose never to neverstream.”

Judge King, in accepting the basic proposal for whole-school reform, understood that the neverstreaming process would reduce the need for special education programs. See App. I at 605, 710 A.2d at 512. Nevertheless, he was emphatic in recommending that special education not be neglected and that adequate funding be provided for special education when needed. See App. I at 605-607, 710 A.2d at 512. We interpret the Commissioner’s testimony, as did Judge King, “as assuring adequate money in individual school-based budgets for all extant worthy programs, including special education, and we take him at his word on this *496 point.” See App. I at 606, 710 A.2d at 512. Thus, in schools where neverstreaming demonstrably does not or will not work, additional funds may be required to implement traditional special educational services, including the hiring of teachers trained in special education and the provision of specially designed or equipped rooms.

The administration, supervision, and implementation of SFA is multifaceted. SFA includes a family support team that assists students with non-academic problems and is composed of various members of the school community, including social workers, counselors, parent liaisons, administrators, teachers, and parents. As Dr. Slavin testified, the goal of the family support team is to utilize school and community resources to ensure that children come to school every day prepared to learn. The support team would provide health, counseling, nutritional, tutorial or other needed services. Additionally, SFA requires a program facilitator, who ensures that all the elements of SFA are properly implemented and coordinated, and a school-based management or advisory team consisting of school administrators, teachers, and parents.

Recognizing that professional development is key to the implementation of whole-school reform, the Commissioner recommended that every Abbott school implement a professional development program that is continuous, focuses on student achievement of the CCCS, and is based on ongoing professional renewal. Prior to the school year, each member of the SFA instructional team would receive at least three full days of in-service training. The school principal and program facilitator would undergo a week long training session. Additional training time would be provided for teachers functioning as tutors and for the family support team. During the school year, there would be weekly in-school training sessions and three two-day evaluations by SFA staff.

The success of whole-school reform depends on obtaining the support and approval of teachers, staff, and parents. See Joel F. Handler, Down From Bureaucracy: The Ambiguity of Privatiza *497 tion and Empowerment 194 (1996). Thus, the model SFA program contemplates that eighty percent of the teachers and other school staff vote to approve or “buy into” whole-school reform. The Center for Social Organization of Schools, the SFA sponsor organization, estimates that it could implement SFA in fifty Abbott schools in the 1998-1999 school year, in 100 Abbott schools in the following year, and in the remaining Abbott elementary schools in the third year. It takes three years to implement SFA fully in any given school. Thus, under the Commissioner’s recommendations, SFA could be fully operative in all Abbott elementary schools within five years.

The Commissioner voiced the State’s strong commitment to implementing whole-school reform. The DOE will facilitate the implementation process by providing resources to help review budgets, coordinating necessary support, and assisting in the transition from centralized to site-based management. If a district or school is hesitant in its implementation of whole-school reform, the DOE will exercise its “essential and affirmative responsibility” to ensure the necessary changes.

The Commissioner recommended the implementation of SFA at a high level. As Dr. Odden noted, the Commissioner’s proposal, responsive to the acute educational needs of the Abbott districts, exceeds the requirements of the prototypical program:

[The State] expanded every element of the [SFA] model. For example, the standard model assumes a class size of 25, while the State proposed a class size of 21. The standard model assumes four tutors for a school of five hundred with nearly all students eligible for free or reduced lunch; the State model proposes 5.5 tutors. The standard model assumes a full day kindergarten but does not require any preschool, while the State model proposes a half day four-year old preschool program____ The standard model assumes a part time family liaison or a full time para-professional parent liaison, while the State model not only proposes a certified professional as the family liaison, but goes beyond that and proposes a full, five member family, health, and social services team. The standard model assumes no technology but the State model includes substantial technology. The standard model assumes a full-time, schoolwide instructional facilitator, and the State model not only proposes that position but a technology coordinator as well. The standard model assumes about $65,000 for professional development and materials, while the State has proposed nearly twice that amount. So the State has taken the best and most solid, research-proven effective, urban district elementary school model in the *498 country and enhanced nearly all its key features. The proposal is a strong, expensive, substantive proposal which could serve as a model for the rest of the country.

[App. II at 641-642, 710 A.2d at 529-530.]

Whole-school reform entails “zero-based budgeting.” Under this scheme, the school combines all of its sources of revenue or “funding streams” and uses the aggregated amount as the basis for the entire school budget. - In other words, instead of allocating certain funds to specific programs, the school uses the entirety of its funds to implement whole-school reform. The Commissioner’s proposal for whole-school reform at a high level is premised on the assumption that the budgets of Abbott elementary schools contain and will continue to contain not only parity funds, but also DEPA and ECPA funds. Consistent with the Commissioner’s proposal, Judge King recommended that both the parity funding authorized in Abbott IV, supra, 149 N.J. at 189, 693 A.2d 417, and these other funding streams be continued. See App. I at 607, 710 A.2d at 512. We agree.

Plaintiffs claim that the Commissioner’s whole-school reform plan will not provide the constitutionally guaranteed thorough and efficient education because the plan is not tied to the CCCS. However, Dr. Slavin’s testimony about SFA’s impact in different states implied that SFA can be adapted to fit various state standards of success. Moreover, the Assistant Commissioner for Finance in the DOE indicated that SFA could incorporate the CCCS. Janice Anderson, the Vice Principal of Asbury Park’s Thurgood Marshall Elementary School, a school using SFA, also testified that her school was able to conform the SFA program to New Jersey’s CCCS.

Under the Commissioner’s proposal for whole-school reform, class sizes would be reduced to twenty-one students per class for kindergarten through third grade and twenty-three students per teacher for fourth and fifth grades. Class sizes for reading would be fifteen for grades K-5. Plaintiffs claim that the implementation of whole-school reform should be accompanied by a class-size reduction to fifteen students per teacher for all subjects through *499 third grade, not just for reading. However, Dr. Odden indicated in his report that whole-scale class size reduction as such has “only [a] modest impact[ ]” on student learning, see App. II at 652, 710 A.2d at 535, and Judge King found that “[cjonceptually, whole-school reform like SFA and class-size reduction to fifteen are alternative programs.” App. I at 609, 710 A.2d at 514. Noting that SFA requires students to spend 90 minutes or 30% of the instructional day in reading groups of 15, Judge King concluded: “If SFA is implemented effectively and works, this is sufficient.” App. I at 609, 710 A.2d at 514. We find sound support for that conclusion and concur in Judge King’s recommendation that it will not be essential to reduce class size in the elementary schools to an extent greater than that proposed by the Commissioner.

In addition, we do not find persuasive plaintiffs’ argument that SFA is beyond the DOE’s statutory authority or is inconsistent with this Court’s prior determination in Abbott TV. Even though there is no express statutory authorization for whole-school reform, the Commissioner’s recommendation is consistent with the expansive powers given him under CEIFA. For example, N.J.S.A 18A:7F-6b provides that when the Commissioner determines that a school is failing to achieve the CCCS, he “may summarily take such action as he deems necessary and appropriate, including but not limited to: (1) directing the restructuring of curriculum or programs; (2) directing staff retraining or reassignment; (3) conducting a comprehensive budget evaluation; (4) redirecting expenditures; (5) enforcing spending at the full per pupil T & E [ie., thorough and efficient] amount; and (6) ... reviewing the terms of future collective bargaining agreements.” Additionally, under N.J.S.A. 18A:7F-6c, the Commissioner is given the power to review the proposed budgets of Abbott districts and reallocate the funds within the budget if the funds are not being “appropriately directed so that students in the districts are provided the educational opportunity” to meet the CCCS.

*500 Although the Commissioner did not make the express determination required by N.J.S.A. 18A:7F-6b that schools in Abbott districts are failing to meet the Core Curriculum Content Standards, the evidence of chronic failure among those schools is indisputable. Thus, Judge King found:

Students in these Abbott schools often failed to attain statewide academic standards. Achievement levels in 148 of the schools in twenty districts fell below State standards in reading, writing, or math for three consecutive years as measured by the eighth grade Early Warning Test (EWT) and the eleventh grade High School Proficiency Test (HSPT). Additionally, eighty-three schools failed to meet the standards on one or more of these subjects for one year and twenty-nine failed for two consecutive years. The State now operates three Abbott districts by takeover (Newark, Paterson, and Jersey City), see N.J.S.A. 18A7A-34 to -52; five more confront State intervention if they do not develop corrective action plans to improve student achievement.

Most recent available test data provided by the State showed marked variations in the passing rates for the EWT and HSPT between students in the Abbott and I and J [ie., the wealthier school] districts. State assessment data for the March 1996 EWT revealed that 92.3% of students in the I and J districts passed at proficiency levels I or II versus 40.7% of the Abbott students. Further, 49.2% of the I and J students passed at the highest level of proficiency (level I) compared to 6.9% in the Abbott schools. For the October 1995 HSPT, data showed 91.7% of I and J students passed all sections with 94.9% passing reading, 96.5% passing math, and 97.4% passing writing. In contrast, only 41.8% of students in the Abbott districts passed all sections of the HSPT with 55.9% passing reading, 58.7% passing math, and 71.3% passing writing.

[App. I at 549-550, 710 A.2d at 484 (internal citations and footnote omitted).]

In these circumstances of pervasive academic failure, it can readily be inferred that the Legislature intended that the Commissioner’s broad remedial powers under CEIFA were sufficient to deal with the problem. Whole-school reform is an action deemed “necessary and appropriate” by the Commissioner. See N.J.S.A. 18A:7F-6b. Further, the several elements of whole-school reform are consistent with the authority that N.J.S.A. 18A:7F-6b specifically grants the Commissioner. For example, mandating whole-school reform entails “directing the restructuring of the curriculum or programs.” See N.J.S.A 18A:7F-6b(1). Professional management and the training of teachers in whole-school reform is implicit in the power to direct “staff retraining or reassignment.” See N.J.S.A 18A:7F-6b(2). The zero-based budgeting as a com *501 ponent of whole school reform is encompassed in the Commissioner’s power to “redirect[] expenditures.” See N.J.S.A. 18A:7F-6b(4).

It follows that whole-school reform is a remedial measure that can create the opportunity to achieve a thorough and efficient education. It is consistent with both legislative and executive educational policy and comports with the intended effect of this Court’s determination in Abbott IV. Because the evidence in support of the success of whole-school reform encompassing SFA is impressive, 2 we adopt Judge King’s recommendation “that the State require the Abbott districts to adopt some version of a proven, effective whole school design with SFA-Roots and Wings as the presumptive elementary school model.” See App. I at 607-608, 710 A.2d at 512-513. We direct that implementation proceed according to the schedule proposed by the Commissioner and that SFA contain the essential elements identified by the Commissioner. Finally, we direct the Commissioner to implement as soon as feasible a comprehensive formal evaluation program, modeled on *502 SFA’s formal evaluation precedents, to verify that SFA is being implemented successfully and is resulting in the anticipated levels of improvement in the Abbott elementary schools.

B.

This Court has consistently recognized and emphasized that early childhood education is essential for children in the SNDs. See, e.g., Abbott IV, supra, 149 N.J. at 183, 693 A.2d 417. Accordingly, both parties submitted major proposals in respect of early childhood education. The parties clearly recognized that early childhood programs are critically important and address the fact that, if at-risk children are to have any chance of achieving educational success, they must be education-ready. As recommended by the Commissioner and contemplated by the State’s experts and the Special Master, early childhood education is consistent with whole-school reform’s focus on early educational initiatives and grade-by-grade continuity and improvement. Early childhood education in the special needs districts is an integral component of whole-school reform.

1.

Both parties recommended full-day kindergarten for all Abbott five-year olds. According to the Commissioner’s report, “[sjtudies have shown that well-planned, developmental^ appropriate full-day kindergarten programs for five-year-olds clearly provide one of the most cost-effective strategies for lowering the dropout rate and helping children at-risk become more effective learners in elementary school, particularly in first grade.” The Commissioner’s report also indicated that studies showed that students in full-day programs benefit more academically than students in half-day programs. Judge King “strongly endorsefd] the State’s commitment to full-day kindergarten.” App. I at 608, 710 A.2d at 513. We concur.

Full-day kindergarten comports with the requirements of SFA Dr. Slavin testified that schools implementing SFA should increase their half-day kindergarten programs to full-day ones. *503 Further, full-day kindergarten comports with statutory policy. CEIFA requires that any district receiving ECPA must establish and maintain full-day kindergarten for all five-year olds by the 2001-2002 school year. N.J.S.A. 18A:7F-16.

Finally, research clearly supports the notion that full-day kindergarten is an essential part of a thorough and efficient education for the Abbott children. Not only will the children benefit in the long-run, as the empirical evidence demonstrates, but they will also be better prepared to enter first grade and take advantage of the opportunities presented by SFA and whole-school reform.

Full-day kindergarten is not yet available in all Abbott districts. The demonstrated need for this program is acute. Because SFA will be implemented in the Abbott schools without further delay, and because the Commissioner himself has indicated a willingness to ensure the availability of adequate temporary facilities, we affirm Judge King’s recommendation that full-day kindergarten be “implemented immediately.” See App. I at 609, 710 A.2d at 513. In those schools unable promptly to locate or obtain adequate classroom space or instructional staff, full-day kindergarten shall be provided by the commencement of the September 1999 school year. The Commissioner’s endorsement of full-day kindergarten signals and underscores the State’s commitment to provide or secure the funds and resources essential for the effectuation of this early childhood initiative.

2.

There is no fundamental disagreement over the importance of pre-school education. The Commissioner proposed half-day preschool for four-year olds, and the plaintiffs and Dr. Odden recommended full-day pre-school for both three- and four-year olds. As the Commissioner’s research itself demonstrates: ‘Well-planned, high quality half-day preschool programs ... help close the gap between the home and school environments and the educational expectations that lead to academic success.”

Empirical evidence strongly supports the essentiality of preschool education for children in impoverished urban school dis *504 tricts. That evidence demonstrates that the earlier education begins, the greater the likelihood that students will develop language skills and the discipline necessary to succeed in school. A review of two major studies on pre-school cited by the parties, the High/Scope Perry Preschool study and the Abecedarian study, also reveals that there is a strong correlation between the intensity and duration of pre-school and later educational progress and achievement. The Commissioner’s expert on childhood education, Dr. Slavin, noted that “the programs that have shown the greatest success are ones that provide more intensive services” and “start with three-year-olds rather than four-year-olds.” Common experience confirms this empirical evidence that pre-school attendance is linked to success in school.

A 1996 report by the Carnegie Task Force on Learning in the Primary Grades lends further support to that conclusion. Carnegie Corp. of New York, Years of Promise: A Comprehensive Learning Strategy for America’s Children (1996). The Report recommends that high-quality learning opportunities for children ages three to five be made universally available:

During the preschool years, children make the developmental leaps that form the basis of later achievement. To get all children ready for school and for an education that meets high standards of achievement, the task force recommends that the nation make a commitment to expanded high-quality public and private early care and education programs for children ages three to five, supported by national, state, and local mechanisms that are coordinated to assure adequate financing.

[Id. at xi (emphasis added).]

Part of the basis of that recommendation is that one-third of children entering elementary school lack basic school-readiness skills. Id. at 17. One reason for this deficit is that poor areas suffer from a scarcity of quality, publicly-funded early care and early education for three- to five-year olds. Id. at 57.

The evidence also shows that one of the most important functions of early childhood education is language development. At the hearing, evidence was produced showing that children in low income families suffer greatly in language development. Key elements of language development begin when a child is three and *505 four; therefore, opportunities for those children to leam are lost if early childhood education does not begin at those ages.

The Legislature itself has recognized the necessity of early childhood education for three- and four-year olds in the poorest school districts. N.J.S.A. 18A:7F-16 provides that for districts in which the concentration of low income pupils is greater than 20% but less than 40%, early childhood aid “shall be distributed” for “the purpose of providing full day kindergarten and pre-school classes and other early childhood programs and services.” The statute does not specify whether the pre-school aid should be used for three-year olds or four-year olds or both. For districts in which the concentration of low income pupils is equal to or greater than 40%, the statute directs that additional funds be used “for the purpose of expanding instructional services previously specified [i.e., pre-school classes and other early childhood services] to 3 year olds.” Ibid. For districts, then, with a 40% concentration of poor students, it is mandatory that ECPA funds be expended for the pre-school education of three-year olds. The statute next provides that should extra funds remain, they may be used, “in addition to the instructional services previously specified” [i.e., the just mentioned pre-school for three-year olds and the aforementioned “early childhood programs”], for “the purpose of’ providing “transition and social services to primary grade students.” Ibid. The statute thus contemplates three tiers of funding: (1) undifferentiated funds to be expended on pre-school in Abbott districts with 20% poor (ECPA-1 districts); (2) additional monies that must be spent on pre-school education for three-year olds in districts with 40% poor (ECPA-2 districts); and (3) extra funds to be used for services for elementary school students in districts with funds remaining after the mandates of (1) and (2) have been met.

This construction of the statute is borne out by administrative regulation. See N.J.AC. 6:19-3.2d (providing that beginning in the 2001-2002 school year, ECPA may be used only for “preschool, full-day kindergarten and other early childhood programs *506 and services”). Finally, we note that GoodStarts, a full-day preschool program for three- and four-year olds developed under the Kean administration under the name “Urban Early Childhood Initiative,” evidences the early recognition o