Commissioner Hespe Faces Tough Call in Overcrowded Freehold District

John Mooney | January 5, 2016 | Education
Administrative law judge overrules voters, says state should approve bonds to relieve cramped, congested schools

Credit: NJTV
Overcrowding is so egregious in Freehold schools that technology areas and the library have been partitioned into classrooms.
Freehold Borough’s schools, a working-class district of 1,700 students and three facilities, is posing a tough question for state Education Commissioner David Hespe over the balance of power between state and local interests.

Twice rejected by the voters in 2014 in its request for bond issues to finance badly needed school renovations, the district appealed to Hespe a year ago to overturn the people’s will and order the bonds, arguing that students were being deprived of their right to an education.

It was only the third such appeal since the state’s school construction law was enacted in 2000, which spawned one of the biggest investments in building and renovating schools in the country. But money has since slowed to a trickle.

Last month, administrative law judge Susan Scarola in her fact-finding on the case sided with the district and recommended that Hespe order more than $32.9 million in bonds to address what she called a “constitutional deprivation” for the district’s children.

Now, the decision is in the hands of Hespe, who must decide between a judge’s compelling ruling on behalf of school improvements and that of a majority of the roughly 600 voters who not once but twice said they can’t afford it or at least won’t pay for it.

Such an appeal is an anomaly in New Jersey, but surely is being closely watched in other districts facing their own pinched budgets.

Whether that interest will ever be translated into action is on open question, especially given the time and expense required for such an appeal. Nonetheless, some observers said the decision could make the option more appealing.

“While it doesn’t make new law, it’s significant in that it’s a reminder that the commissioner does have that power, and that ALJs and the commissioner won’t hesitate to use it when warranted by the facts,” said David Rubin, a Metuchen lawyer for several districts and frequent speaker on school law.

Under the current law, only districts in Clark in 2003 and in Milford in 2008 have appealed to the state to move on a school project over their voters’ rejection. In each case, the commissioner ultimately sided with the districts, at least in part.

At issue in Freehold is a proposal to improve and expand two schools — the Park Avenue School and the Freehold Learning Center — to handle what all agree has been a significant influx of students, which has led to crippling overcrowding that has teachers working in the hallways and lunch served as early at 10:30 a.m.

Credit: NJTV
Freehold Superintendent Rocco Tomazic
Freehold superintendent Rocco Tomazic identified in his testimony a range of places where students suffer from this squeeze, from physical education programs that fail to meet state requirements due to the shortage of space to handle all the children to the lack of available room for library or technology programs. Class sizes exceed the norms, and both special education and bilingual students are especially shortchanged.

“The schools simply did not have enough space to conduct all the resource replacement required for the students,” is how the judge’s ruling paraphrased Tomazic’s testimony.

The law sets a high bar: schools can only appeal when they have twice been rejected by voters and can show the project is nevertheless “necessary for the provision of a [constitutionally mandated] through and efficient education.”

In other words, the overcrowding must be more than an inconvenience or even harmful to a degree; it must prevent students from receiving a decent education.

To assess the situation, Scarola conducted her own review, held two public hearings, and toured the schools herself. She said there was not much question as to the space crunch. She described an auditorium stage turned into classrooms, students being taught at a desk in the hall, and an “almost nonexistent” library.

“Without a doubt, the schools are severely overcrowded,” she wrote.

And taking it the next step, she said it was affecting the instruction students were receiving and the resultant achievement levels. “Classes have been limited; instruction has been curtailed,” the judge wrote curtly.

Scarola acknowledged the voters’ sentiments, but said residents also testified at the public hearings that they recognized students were being harmed.

“Despite the concern of and resentment by some residents over the anticipated expense of the improvements, most of the citizenry and residents acknowledged the serious problem of overcrowding confronted by the district on the board,” she wrote.

Tomazic hailed the decision in a press release, and pleaded for Hespe to take the next steps. “We expectedly look to the commissioner of education to definitively finalize this matter,” the superintendent said.

But Hespe’s options are varied. He wouldn’t speak to the case yesterday, citing it as a pending legal decision.

But the commissioner does have some flexibility within Scarola’s ruling and the existing law, where he can pick out projects and not opt for either all or nothing. He

A decision is expected within the next several months.