Education Law Center Files Motion for School Construction Funding

The Newark, NJ-based Education Law Center (ELC) has filed a motion asking the New Jersey Supreme Court to force the state's school construction agency to obtain funding from the legislature that will allow completion of the school construction mandated by the court in New Jersey's Abbott v. Burke “adequacy” lawsuit. A majority of the school construction and renovation projects have been put on hold following the discovery that all the budgeted funds had been used to complete only a fraction of the mandated projects. The motion charges that the state is now in default of the court's orders, and specifically faults the Commissioner of Education in New Jersey, William Librera, for the failure to adjust financing as the costs of construction grew.

Complying with the Court's Order

While evidence in the Abbott case documented the inadequacy of facilities within the state's 30 high-need school districts, it was not until 1998 that the court ordered the state to “fund the ‘complete cost' of ‘remediating the infrastructure and life cycle deficiencies that have been identified in the Abbott districts,' as well as the ‘construction of any new classrooms needed to correct capacity deficiencies.'” The legislature complied with this order in 2000 with the Education Facilities Construction and Financing Act (EFCFA). The Act provided a total of $8.5 billion in funding for capital construction ($6 billion of it earmarked for the 30 Abbott districts) and created mechanisms for controlling the budget and approving district construction plans.

The Act also required that the state's Commissioner of Education approve each facilities construction plan, and issue an annual report on the state's “school construction program.” The report, done in consultation with the state Treasurer, was to identify “'whether there is a need to adjust the aggregate principal amount' to complete the approved projects;” in other words, the report was the only mechanism by which the EFCFA appropriation might be increased. However, the Commissioner has not issued an annual report since the law was enacted.

The Well Dries Up

In the Fall of 2004, the New Jersey Schools Construction Corporation's (SCC) Chief Operating Officer revealed that the funds appropriated by the legislature for the EFCFA would run out by 2006. As a result, the SCC, which had been charged with running the state's facilities projects under EFCFA, selected a finite number of projects currently underway that could be funded with the remaining money. They identified 59 such projects, leaving 103 projects that had reached the “under-development” phase with no funding to complete construction.

Though the Abbott districts, which educate over 281,000 students, had submitted, as required by the court, “Long Range Facilities Plans” detailing 532 essential facilities projects, only 25 have been completed and only 49 have reached the “final approval”/“under-construction” phase. The Education Law Center , in its brief to the court, detailed the numerous costs and major difficulties created by leaving 103 projects midway through the construction process. They also noted that proposals for an unknown number of construction projects had been sent to the SCC and were languishing in the “pre-development” phase of construction, likewise creating untenable situations for districts and their students.

Constitutional Violation

As a result of the large number of necessary construction upgrades, detailed by the Abbott districts in “Long Range Facilities Plans” and approved by the Department of Education, that have not been funded as ordered by the court, the Education Law Center has requested that officials in the Department of Education identify the amount of funding necessary to complete all projects that have reached the “pre-development” phase, and obtain that amount from the legislature. This is intended to be a stopgap measure that will allow current construction projects to continue until the legislature is able to develop a way to finance the completion of all mandated projects.

"We go to the Court with great reluctance, and only after it became clear that the Commissioner would not take action to obtain more funds, as he must do under the Abbott rulings," said David Sciarra, ELC Executive Director and Abbott Counsel. "Without additional funding, these long overdue new schools and school renovation projects will remain stalled, increasing their cost and causing harm to students and their communities," he added.

ELC also requested that the court expedite the decision, so as to minimize the costs incurred by a delay, and that it retain jurisdiction over the case as the state tries to comply with the court's order.

This motion is the latest in a long series of actions in the Abbott v. Burke case. More information on New Jersey's school funding “adequacy” suit can be found at ACCESS's New Jersey litigation history page.

Prepared by Nelly Ward, August 23, 2005