New Jersey A.G. Moves to Terminate Long-Pending Abbott Litigation

Seeking to end one of the longest pending education adequacy suits in the nation, Anne Milgram, Attorney General of the state of New Jersey, filed a hard-hitting motion on March 17, which claims that the School Funding Reform Act of 2008 (SFRA) addresses the constitutional deficiencies the Court identified in its past decisions. The motion specifically asks the Court to eliminate all of the precise remedies that it has ordered over the past decade (except for the outstanding capital funding requirement that the state has promised to address in the near future) including parity funding with affluent districts, needs-based supplemental funding, and mandatory pre-school for all 3 and 4 year olds, on the ground that the 32 urban districts covered by the Abbott order will get sufficient funding under the new formula to meet all of these needs. The state also argues that the formula guarantees sufficient funding to meet the needs of at-risk children in districts not covered by the Abbott decree. These children who now constitute almost half of the at-risk students in the state, constituted less than 30% of the at-risk students when the Abbott case was filed in the mid-‘80s.

The state spent over five years undertaking cost analyses and formula revisions to build its case for terminating the Court’s jurisdiction. It retained the services of Augenblick, Palaich, and Associates to assist the Department of Education in constructing a cost model and then had the model reviewed by two sets of outside consultants. The Education Law Center, the Plainiffs in the case, maintain, however, that this cost analysis repeats many of the flaws of the cost analysis undertaken by the Whitman administration more than a decade ago, which was soundly rejected by the Court. Among other things, they argue that the initial hypothetical school district model upon which the cost analysis was constructed was developed by state employees, much of the later input from educators and consultants was arbitrarily rejected by the Department, and in the final analysis the cost study was based on hypothetical models, not on the actual needs of students in the Abbott districts.

Under the SFRA formula, many of the Abbott districts would receive substantial cuts, although at least for the next year, the state would provide additional transition aid that would essentially hold them harmless and provide at least a 2% over-all funding increase. Plaintiffs point out, however, that the 2% increase will not cover inflation and mandatory cost increases, meaning that many Abbott districts will have to make significant cuts in order to meet fixed, non-discretionary cost increases, such as teacher contracts, health benefits, and energy costs.

The state has directed all school districts in the state, including the Abbott districts, to prepare their 2009 budgets on the basis of the new formula, even though the Court has not yet ruled on the state’s motion. David Sciarra, chief counsel for the plaintiffs, has asked the state to defer imposing the new formula on the Abbott districts until the Court rules on their motion to vacate the Abbott remedial rulings. He also is seeking to have the motion remanded to the trial court so that the parties can develop a full evidentiary record on the constitutional issues implicated by the Act, including the Act’s satisfaction of the Abbott mandates and the impact on plaintiffs’ right to a thorough and efficient education.

Prepared by Michael A. Rebell, April 1, 2008