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Abbott Case Back in Court

Plaintiffs in New Jersey's long-standing education reform litigation, Abbott v. Burke, returned to the state Supreme Court on September 25, charging the state with failing to provide court-ordered pre-school education in New Jersey's 30 high-need urban school districts.

In nearly a full day of proceedings, attorneys from the Education Law Center, several school districts, and early childhood education advocacy groups argued before the Court that thousands of 3- and 4-year-olds statewide are being denied quality pre-school for which they are eligible. Plaintiffs asked the court to appoint a special master to oversee full implementation of this program.

In 1998, in its fifth decision in the Abbott case, 710 A.2d 450, the Court adopted the state's proposed plan for a number of supplemental programs in the 30 urban districts in order to provide children their constitutional right to a "thorough and efficient education." In addition to mandating free, high quality early childhood education programs, the Court ordered a series of other changes including the implementation of whole-school reform in every elementary school, full-day kindergarten, and after-school and summer programs. In a 1999 decision, the Court defined the early childhood education standards in more detail.

According to David Sciarra, the executive director of the Education Law Center, three years after these mandates there has been insufficient progress in making universal preschool available to all eligible children. Last year, only 47 percent of eligible children were accommodated in preschool programs that met the Abbott standards. Early evidence from school districts indicates that this year is not much better: In Elizabeth, for example, only 1000 of 3100 children have been accommodated, with nearly 1000 others on a waiting list.

Sciarra argued that accountability for implementation of these programs is essential. "For children, results are what matters, not procedures," Sciarra said, adding that without high-quality preschool, children in the urban districts are academically 1.5 years behind their suburban peers when they enter kindergarten.

"The Abbott preschool program must be put on track and kept on track," Sciarra said. Specifically, facilities needs, better coordination and collaboration between state and local agencies, and major disparities in teacher pay between private community providers and school districts are critical issues that are delaying full implementation of these programs. Additionally, Sciarra called for streamlining the budgeting process to allow better planning and implementation by school districts and the state.

In many districts, early childhood programs are being housed in temporary facilities, including trailers. Plaintiffs argued that the lack of uniform state guidelines on the facilities issue has delayed districts in developing permanent facilities plans, and asked the Court to direct an immediate assessment of facilities needs in every district and an expedited process for constructing permanent facilities.

Attorneys representing the Passaic Head Start program, several school districts, and the Association for Children of New Jersey addressed problems private community providers are facing, including inadequate funding to meet the high Abbott standards and the loss of many teachers who have taken better-paying preschool or other teaching jobs in the school districts.

Representing the state defendants, New Jersey's assistant attorney general Nancy Kaplen defended the state's progress in implementing the preschool programs. In its brief filed with the court, the Attorney General's office claimed the state is "now close to achieving its ambitious goal of making full-day, full-year programs available to all children in the 2001-2002 school year." Although it agrees that higher enrollments, adequate funding, and better processes for needs assessment and decision-making are top priorities, defendants argued that it would be improper for the Supreme Court to "intrude" on the Department of Education's efforts and to "direct the minute details of the program's implementation."

Plaintiffs' attorney Paul Tractenberg explained the request for the appointment of a special master. "We are complaining about bad results, not bad faith," Tractenberg said, calling the state's "extraordinary effort to comply with a monumental task" not enough. The primary role of a special master would be to monitor and facilitate implementation of preschool programs, alleviating the need to repeatedly appear before the Supreme Court to resolve these issues.

Prepared September 25, 2001