Tractenberg on New Abbott Ruling

This opinion piece by Paul Tractenberg appeared in The Record on Sunday, June 7, 2009.
Paul Tractenberg is Board of Governors Distinguished Service Professor at Rutgers School of Law in Newark and co-director of the Rutgers-Newark Institute on Education Law and Policy. Professor Tractenberg founded the Education Law Center in 1973, and served as ELC’s first executive director. He currently serves as Chair of the ELC Board of Trustees.

Moving Education Equity to the Next Level

Mark Twain once famously said that “The reports of my death are greatly exaggerated.” Much the same can be said about Abbott v. Burke and the educational gains it sparked for New Jersey’s most disadvantaged public school students and schools.  And make no mistake, as Kathleen Carroll recently documented in this newspaper, there have been substantial educational achievement gains in many Abbott districts.

Notwithstanding that success, last week’s Supreme Court decision lifted orders imposing “parity” and supplemental funding – special funding remedies for the 31 Abbott districts that educate nearly one in four New Jersey public school students. At least for the moment, these remedies are replaced by the statewide formula in the School Funding Reform Act (SFRA). Abbott districts and students have been subsumed within a broader class of high poverty districts, to be funded uniformly under SFRA.

Before we sound Abbott’s death knell, however, we should look closely at what the Court’s ruling actually means.

First, key elements of Abbott remain, either free-standing or embedded within the new formula. For example, the Abbott school construction program continues, untouched by SFRA and the Court’s decision. The highly successful, nationally recognized Abbott preschool program has been extended by SFRA to 84 additional high poverty districts, and further to all low-income children in the rest of the state.

Second, students in the Abbott districts start with resources and state aid levels under SFRA vastly higher than the grossly inadequate and unequal funding they received pre-Abbott. There is real concern, though, that, over time, SFRA will erode Abbott’s enormous equity gains, and accompanying education improvements. Indeed, there is troubling evidence that SFRA is already undermining the needs of students in Abbott and other low-wealth districts, even with an infusion of short-term federal stimulus funding.  But the Court, justifiably worried that SFRA could restore the “deplorable” inequality of the past, built into its decision important fail-safe mechanisms to reduce the risk.

Chief among them is the Court’s explicit requirement that SFRA must be fully funded every year to be constitutional. Over the life of Abbott and its predecessor, Robinson v. Cahill, the State often failed to fund its own statutes, leading to court intervention. Indeed, it looks like the Court’s mettle could be tested quickly on this score since Governor Corzine’s proposed budget for next year substantially under-funds SFRA, and fails to fund pre-K expansion, raising constitutional issues before the ink on the Court’s opinion is dry. 

Also important is the Court’s insistence that, despite the elimination of separate supplemental funding, Abbott districts must be able “to select and deliver” the Abbott supplemental programs “that are appropriate and necessary for their pupils.” We’ll find out in short order whether SFRA funding actually enables those districts to provide the tutors, after-school, drop-out prevention and other needed  programs to address concentrated student poverty, with these sorts of  programs already on the chopping block in some districts.

Third, the Court’s decision virtually doubles the constituency of those with legally enforceable constitutional claims. Now all low-income, limited English proficient (LEP) and special education students in New Jersey are covered by the enlarged education equity umbrella, based on the Court’s acceptance of the State’s claims that SFRA will adequately fund programs to meet the needs of those students statewide, especially in districts with concentrated poverty. This enlarged education equity constituency may have a profound political impact, beyond its legal impact. The “us-against-them” approach embraced by many opponents of Abbott will no longer have the same jingoistic appeal.

Finally, the Court places substantial weight on SFRA’s three-year review process as a way to determine whether the formula will actually produce the fiscal and educational results the State claims. Among the critical questions that must be answered in two years are:

  • Whether SFRA can support needed supplemental programs in Abbott, and other high needs districts;
  • Whether state aid generated by low-income, LEP and special education students assures that districts will meet the intense educational needs of such students, in the absence of any explicit requirement in SFRA that they do so;
  • Whether the end of federal stimulus funding leaves a large, unfilled budgetary hole in the formula;
  • Whether the current small gap in education resources between Abbott and other poor districts relative to higher-wealth districts widens, threatening to reinstate the gross disparities Abbott almost eliminated.

Those of us committed to the cause of education equity will be following SFRA’s implementation and real-world impact closely. We will be insisting that the Commissioner of Education, Governor and Legislature seriously evaluate how SFRA is working and make whatever adjustments are necessary. We simply cannot allow the unequal education playing field experienced by previous generations of New Jersey children to return.  As the latest Abbott ruling makes clear, the courthouse door is still open to guarantee that does not happen.

Access Professor Tractenberg’s opinion piece on-line:

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