Success and Better Funding Draw Voucher Lawsuit

Lawyers for the State of New Jersey and over two dozen New Jersey school districts tried to stave off a lawsuit seeking to redirect school funds to vouchers, in a hearing on a motion to dismiss the suit, held in April. The lawsuit, brought by a coalition of pro-voucher organizations, marks a new strategy for national voucher proponents in seeking to find in the New Jersey Constitution a right to school vouchers for all students in low-performing schools. These organizations are trying to achieve through the courts what they have failed to achieve at the ballot box, and, in an ironic twisting of legal precedent, are using the very arguments that other plaintiffs have used to strike down state school funding formulas in lawsuits across the country.

A “Right” To Attend Any School

Attorneys for the plaintiffs in the class-action lawsuit, Crawford v. Davy, are attempting to use previous rulings of the New Jersey Supreme Court in order to establish a right to school vouchers. In Robinson v. Cahill in 1973 and Abbott v. Burke in 1990, the court relied on the right to a “thorough and efficient education” guaranteed to the children of New Jersey by the state constitution, and its rulings paved the way for over two decades of school funding reform.

In an ironic strategy, these precedents – intended to improve public education for children in the state’s low-wealth communities – would now be used to undermine public schools. The Crawford attorneys argue that students who attend low-performing schools are “trapped” in “failing schools” by school district boundaries and attendance zones and are thus being denied their rights. Any child in a school in which a majority of students do not pass one of the state’s standardized tests for two consecutive years, plaintiffs argue, should have the right to attend a school outside their district or attendance zone, and, moreover, should have the right to a voucher to attend any public or private school of their choice. Richard Shapiro, an attorney for eight of the defendant school districts, is critical of this supposed “right.” Plaintiffs “are seeking to displace a legislative decision with their own preferred judgment,” Shapiro told the Newark Star-Ledger.

Drawing upon the success of school funding adequacy lawsuits in 20 states, including New Jersey, voucher advocates have started to co-opt the arguments – and even the language – used in those lawsuits. “Thousands of children,” the plaintiffs’ brief, filed last July, says, “do not enjoy educational opportunities equivalent to other public school children in New Jersey.” By zoning children in local schools, the brief argues, “their fundamental right to a thorough and efficient education and equal protection of the law is violated.”

Vouchers as a “Civil Right”

The first sentence of the plaintiffs’ brief states its overarching message loud and clear, calling the lawsuit a matter of “civil rights.” Similarly, Rev. Reginald Jackson, a leading supporter of vouchers and Executive Director of the Black Ministers’ Council of New Jersey, has supported the lawsuit, saying, “Quality education is a civil right, and we can’t wait much longer.” The Black Ministers’ Council is one of the pro-voucher groups involved in the lawsuit, along with the organization Excellent Education for Everybody and the Latino Leadership Alliance of New Jersey.

Critics of the lawsuit, however, doubt the earnestness of plaintiffs’ arguments, as the plaintiffs have been receiving legal and financial support from state and national pro-voucher organizations such as the Arizona-based Alliance for School Choice. Clint Bolick, president of the Alliance, has vocally supported the lawsuit and has criticized past efforts to improve New Jersey schools. In an op-ed in the Wall Street Journal last July, Bolick argued that the Abbott cases have provided low-performing schools with “abundant funding,” but that the schools have very little to show for it.

Diverting State Wealth to Private Schools

The plaintiffs’ own brief, however, appears to undercut Bolick’s argument. The plaintiffs argue that 60,000 students are in what they call “failing schools.” While every student deserves the opportunity for a quality education, these 60,000 students – many of whom are passing state tests – represent only a fraction of the more than 300,000 students attending schools in the state’s 31 poorest districts. Many of the schools in these districts do have successes to show for the funding they have received.

The most insidious aspect of the lawsuit is that national voucher organizations are trying to take away the funding that has enabled schools to improve. The plaintiffs are requesting that the court order districts to divert into each voucher the full per pupil spending in their district. In cities such as Newark, where schools spend $16,000 per pupil, vouchers would be a taxpayer-funded windfall for private and religious schools and devastating to the public school system.

Superior Court Judge Neil Shuster has said he will rule on the motion to dismiss by May 10.

Prepared by Matthew Samberg, May 1, 2007