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New Jersey Judge Recommends New Path for Old Litigation

In a Solomonic decision, Peter E. Doyne, a state superior court judge sitting as a special master appointed by the New Jersey Supreme Court, recommended that New Jersey’s new school funding formula be deemed to satisfy constitutional requirements, provided that, at least for the next three years, the 32 urban school districts covered by the state’s long-pending Abbott v. Burke litigation be allowed to continue to apply to the state education department for supplemental funding. The special master’s recommendation will now be considered by the New Jersey Supreme Court, which has scheduled oral argument in this matter later this month.

In January 2008, the New Jersey legislature adopted Governor Jon Corzine’s new education funding formula. Increasing funding overall by 7% this year, the new approach is based on a foundation formula that sets a base amount that then varies with grade level, and that provides additional weights for at-risk, special education, and limited English proficiency students. The formula also includes an additional weighting for students in areas of high poverty concentration.

According to Education Commissioner Lucille E. Davy, the new formula “follows the basic principle that children with greater needs deserve greater resources,” and it will better address the needs of the 49% of low-income students that live outside the Abbott districts, who have not been covered by the Abbott litigation. But David Sciarra, attorney for the Abbott districts and executive director of the Education Law Center, argues that the base funding proposed in the new formula shortchanges the 32 Abbott districts. Twenty-two out of these 32 districts will receive a minimum 2% increase this year and could be denied any increases in future years.

After the state petitioned the court to confirm that the new formula meets constitutional requirements and to terminate the Abbott case, the court remanded the case to Judge Doyle to conduct an evidentiary hearing and to make a recommendation as to whether the new funding formula passes constitutional muster. The court imposed upon the state an obligation to demonstrate that the new approach would ensure that the Abbott districts have sufficient resources to enable them to provide a “thorough and efficient” education, as defined by the state academic standards.

The evidentiary issues at the hearing centered on the state’s cost study, which was the main building block for its new formula. The study used the professional judgment methodology, but with several unique twists that became the focus of the controversy between the experts for the parties. Plaintiffs’ main objections were that a) the panelists in first round of the deliberations were all state education department employees, and, even though there were second and third rounds that included advocacy groups and school superintendents, the initial positions set the stage for the entire process; b) the information presented and the questions posed to the panelists did not focus sufficiently on the needs of the Abbott districts; and c) the final report was issued three years after the process began, making much of the information out of date by the time it was put to use.

In conducting the costing-out process and defending the results at the hearing, the state appeared to have drawn in a veritable “who’s who” of experts in the field. In addition to retaining the firm of Augenblick, Palaich & Associates to conduct the basic professional judgment study, the state retained Alan Odden, Larry Picus, and Joseph Olcheske to review the study and its results, and then sought the advice of David Monk, Susanna Loeb, and Thomas Corcoran in developing the formula.

Several of these consultants testified at the hearing, but it was clear that in rejecting plaintiffs’ objections to the manner in which the cost analysis was undertaken, and the testimony by Peg Goertz, Bruce Baker, and Clive Belfield who supported plaintiffs’ position, Judge Doyle relied most heavily on the testimony of Monk, who is the dean of the school of education at Penn State University: “Of all the experts who testified concerning the PJP [ Professional Judgment Panel] process, Monk’s testimony was the most considered, even handed and well structured” (Opinion, p. 26). Accepting the perspective of Monk and the other experts who testified for the state, Judge Doyle ultimately concluded that the formula was “appropriate if not commendable” (Id. at 63).

Although he approved the constitutional validity of the School Funding Reform Act of 1968 in general, Judge Doyle nevertheless insisted that the Abbott districts retain, at least for the next three years, the opportunity to apply for supplemental funding to meet the special needs of their at-risk students, as the New Jersey Supreme Court had mandated in prior Abbott rulings. Despite the state’s vehement stance that supplemental funding “eviscerates the goal of a uniform funding system with the requisite needed discipline,” (Id. at 78), the judge agreed with plaintiffs that supplemental funding is an important “safety net” to ensure that students in the Abbott districts continue to receive the opportunity for a thorough and efficient education:

The potential harm to the students in the Abbott districts outweighs the defendants’ assertion that there shall be no need for supplemental funding, at least until the realities of implementation are known. This is particularly so when it is recognized in years two and three of [the formula’s] implementation there is no increase in aid to the Abbott districts and at the same time municipal overburden is not expected to significantly improve. (Id. at 82)

Supplemental funds are not guaranteed to any of the Abbott districts; they are provided only after a showing of need and a review by the state education department. Judge Doyle recommended that the commissioner of education be obligated to promulgate new rules and regulations to speed up and improve the review process.