NJDOE FAILURE TO MOVE EMERGENT BUILDING REPAIRS VIOLATES STUDENTS’ CONSTITUTIONAL RIGHTS, JUDGE RULES
December 20, 2012
An Administrative Law Judge (ALJ) has ruled that the NJ Department of Education (NJDOE), by failing to adhere to expedited timelines for processing requests for emergent repairs to school buildings, “has violated the requirements of the ‘thorough and efficient’ clause of the New Jersey Constitution.”
The December 14 ruling by ALJ Ellen Bass responds to a legal action filed by ELC on behalf of students in NJ’s low-income “SDA districts,” challenging extensive delays by the NJDOE’s Office of School Facilities (OSF) to review and approve hundreds of applications for emergent repairs filed by SDA districts in June 2011. The case also challenged OSF’s failure to “promptly” transmit approved emergent projects to the NJ Schools Development Authority (SDA) for construction.
Under the State facilities law – the Educational Facilities Construction and Financing Act (EFCFA) – and NJDOE regulations, emergent projects are conditions that, “if not corrected on an expedited basis, would render a building so potentially injurious or hazardous that it causes an imminent peril to the health and safety of students and staff.”
After halting all new school construction in SDA districts in January 2010, the NJDOE announced in May 2011 that the districts could file applications for hundreds of backlogged emergent repairs. In June 2011, 28 districts submitted applications for 716 projects to repair boilers, fire alarm systems, roofs and crumbling brick facades.
As Judge Bass found, the OSF did not issue decisions on these applications until March 2012, over ten months after they were filed. The OSF approved only 70 of these projects as emergent and has only transmitted three of those projects to SDA for actual construction.
Based on these findings, Judge Bass concluded the OSF violated the “clear” legal requirement that applications for emergent projects “be approved or disapproved within ninety (90) days.” Judge Bass also found that, for the 70 projects approved as emergent, the OSF failed to prepare a Preliminary Project Report (PPR), including project costs, and promptly forward the PRP to the SDA to undertake and complete the repair work. The PPR is required before the SDA can begin the work.
Judge Bass sharply criticized the OSF’s attempt to explain the months of delay in acting on the emergent projects as caused by the SDA stating that the “OSF’s approach passes the proverbial buck to another agency, one over which it urges it has no authority or control.” Further, Judge Bass makes clear that the EFCFA and the facilities mandate in the landmark Abbott v. Burke equity litigation “directs the DOE, not another agency, to take action to repair school facilities.”
Importantly, Judge Bass concluded that the unjustified failure to address emergent repairs on an expedited basis violates the thorough and efficient education clause of NJ constitution, noting that the Supreme Court in Abbott “has repeatedly confirmed that the children in [SDA] districts are constitutionally entitled to receive their educations in adequate facilities.”
Judge Bass’ ruling goes to Commissioner Christopher Cerf for review. The Commissioner can accept, reject or modify the ruling. The Commissioner’s decision can then be appealed to the State Appellate Court.
“Many of these dilapidated and dangerous schools are the very same priority and focus schools targeted by NJDOE for fast track academic improvement,” said David G. Sciarra, ELC Executive Director. “It is impossible to expect these schools to make educational progress when their students are consigned to a dangerous, unhealthy and inadequate environment in which to learn. We urge Commissioner Cerf not just to affirm Judge Bass’ ruling, but to direct the NJDOE to immediately address all health, safety and other emergent repairs in these school buildings.”
The law firm of White and Case in New York, through attorneys Marika Maris, Kristin Racine, Joshua Elmore and partner Gregory Little are serving as pro bono counsel for ELC on this case and other matters involving school facilities.
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