Clerk's Summary of Key Provisions In N.J.'s High Court Ruling in

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However desperately a child needsremediation in basic skills, that childalso needs ... a chance to excel.

Following is a summary of the key provisions of the New Jersey Supreme Court's decision in Abbott v. Burke. The material was prepared by the court's office of the clerk.

The Public School Education Act of 1975 is unconstitutional as applied to poorer urban school districts. The minimum aid provisions of the Act are similarly unconstitutional. The Act must be amended to assure funding of education in poorer urban districts at the level of the property-rich suburban districts. Such funding must be guaranteed and mandated by the state. The level of funding must also be adequate to provide for the special educational needs of the poorer urban districts to redress their extreme disadvantages.

Under the [state] constitution, "thorough and efficient" education is a continually changing concept. The question of what must be done to achieve it is debatable--there are various objectives and permissible outcomes. The definition of the constitutional provision by the court must allow the fullest scope to the exercise of the legislature's legitimate power.

Prior decisions of this court determined that the constitution required a certain level of education for all and that there was a failure to meet that goal due to dollar disparity (Robinson v. Cahill I). With the passage of the 1975 Act, the focus of review turned to substantive educational content (Robinson v. Cahill V). The latter decision was made in the context of a facial challenge to the 1975 Act. The Act was upheld. The within litigation challenges the Act as it is applied.

The Act's funding scheme is based on a limited equalizing of the taxing power of school districts. It does not require or assure any particular level of educational expenditure in any school district.

In addition to equalization aid, the Act provides for "minimum aid" (which aids the more property-rich districts), categorical aid (which covers items such as special education and compensatory or remedial education, and is distributed without regard to the wealth of the district or its total budget), transportation aid (again, distributed without regard to equalization), and pension aid (which aids the districts with more and better-paid teachers). Although districts receive federal aid, which is subject to substantial fluctuations, that aid cannot be used to satisfy the state's constitutional obligation. Finally, the Act provides for state aid for capital expenses pursuant to the equalization formula, but all agree that the present system is not adequate to meet the needs of the districts.

Appellants have proved that the spending disparities referred to in Robinson I are worse now than they were before the Act. Although the statistical relationships are a matter of considerable dispute, in general they show that the poorer the district, the less the "per pupil" expenditure; the poorer and more urban the district, the heavier its municipal property tax and school tax burdens.

For most districts, appellants have failed to prove substantively that a thorough and efficient education does not exist. The proofs of expenditure disparity in those districts are not sufficient to overcome the deference owed the conclusions of the commissioner [of education] and the [state] board [of education].

Expenditure disparity in poorer urban districts is such that the present system cannot realistically overcome it. The ranking of districts by socioeconomic status (ses) in 10 groups, known as District Factor Groups (dfg's), aids in analyzing the application of the Act. A comparison of the districts at the bottom of the list with those at the top reflects the constitutional failure of the poorer urban districts to provide a thorough and efficient education. Our constitutional mandate does not allow us to consign poorer children permanently to an inferior education on the theory that they cannot afford a better one or that they would not benefit from it.

The board and the commissioner have administered the Act with energy and dedication. Although the monitoring function may have been designed to measure and achieve a thorough and efficient education, in practice it has not accomplished that goal in the poorer urban districts. Notwithstanding that clear showing, appellants have not carried their heavy burden of demonstrating that a thorough and efficient education has not been delivered to most districts.

"Municipal overburden," the excessive tax levy some municipalities must impose to meet governmental needs other than education, effectively prevents those districts from raising substantially more money for education. That negates the commissioner's power to require a district to increase taxes if the educational budget is insufficient.

The quality of education in poorer urban districts suffers from a lack of resources. The poorer districts offer curricula that not only lack advanced academic courses, but also fail to cover the subjects that tie a child to school--art programs, music, drama, athletics, and even science and social studies. The state's focus on remedial training is not disparaged, but however desperately a child needs remediation in basic skills, that child also needs at least a modicum of variety and a chance to excel.

Test performance and dropout rates demonstrate clearly that a significantly different approach to education is needed in the poorer urban districts if they and their students are to succeed. The evidence suggests that more libraries may be essential, as well as additional guidance programs and alternative education programs for potential dropouts. Intensive preschool programs and all-day kindergarten enrichment programs have been suggested as having the potential to reverse the educational disadvantage the children start out with. It seems agreed that local boards of education, administrators, and teachers' organizations must join with parents for the benefit of these children if education in poorer urban districts is to succeed.

To achieve the constitutional standard, the poorer urban districts must include elements in their educational offering over and above those found in the more affluent suburban districts. Although the court's remedy may fail to achieve the constitutional object, additional money will help, and these students are constitutionally entitled to that help.

The court does not agree with the state that additional funding is not necessary and that without it, the "effective schools" program will lead to a thorough and efficient education in poorer urban districts. If the "effective schools" program is a desirable approach, it should he superimposed on a structure that starts out equal.

The court disagrees with the state's claims that deficiencies in education are primarily related to mismanagement in certain districts rather than to expenditures per pupil. Although mismanagement has undoubtedly occurred, it has not been a significant factor in the general failure to achieve a thorough and efficient education.

A continuation of minimum aid in its present form threatens the effectuation of the remedy provided in this opinion, the attainment of its constitutional goal, and the future maintenance of a thorough and efficient education throughout the state. The minimum aid provisions presently found in the Act are counter-equalizing, and as such, are unconstitutional. Although this aspect of the court's decision is effective with the school year 1991-1992, minimum aid may be phased out.

Based on certain assumptions stated in the opinion, the court's remedy would have cost approximately $440 million for the 1989-1990 school year.

The Act must be amended, or new legislation passed, to assure that poorer urban districts' funding is substantially equivalent to the average of that of property-rich suburban districts. The legislature shall determine which districts are "poorer urban districts." The legislature may devise any remedy, including a complete revamping of the existing system, that achieves a thorough and efficient education as defined herein. It may phase in that new system and phase out the old.

To the extent that the state allows more affluent suburban districts to continue to increase the disparity in spending, it will, by the court's decision, be required to increase the foundation funding of the poorer urban districts. While the new funding mechanism must be in place for the 1991-1992 school year, implementation may be phased in.

Vol. 09, Issue 38

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