Law & Courts

Lawsuit Seeks Vouchers for N.J. Students

By David J. Hoff — July 25, 2006 5 min read
  • Save to favorites
  • Print

School choice activists hope that they will be able to alter the future of education finance litigation through a new state lawsuit in New Jersey.

The suit, which was filed this month in Newark, seeks court-approved vouchers that could be redeemed at public or private schools—including religious ones—as a remedy to aid students in schools where large percentages of students fail to meet state standards.

A legal victory could change the course of litigation in New Jersey and other states where plaintiffs have argued that states inadequately finance their schools.

“It immediately allows students to leave failing schools for good ones, and at the same time creates pressure for accountability for public schools,” Clint Bolick, the president for the Alliance for School Choice, said of the plan being sought. His Phoenix-based legal-advocacy group is supporting the New Jersey lawsuit.

But the suit faces significant legal obstacles, the chief of which is that the state constitution guarantees the right to a “thorough and efficient system of free public schools,” contends a lawyer who has been involved in the 33-year-old effort to increase aid for public schools in New Jersey.

“It’s a dramatic political statement, but it’s not … a winning legal case,” said Paul L. Tractenberg, the founder and the chairman of the Education Law Center, the Newark-based legal-advocacy organization that has successfully sued the state over how it finances its schools.

“There’s never been a court decision—either state or federal—that has recognized a constitutional right to public funding for a private choice” of education, said Mr. Tractenberg, who is also a professor of law at Rutgers Law School-Newark.

Mr. Bolick said that the New Jersey lawsuit would be a “national test case” for voucher supporters’ strategy to redirect legal efforts by education advocates who use the education clauses in state constitutions to win increased financing for public schools.

The suit, which targets the state department of education, doesn’t try to intervene in the ongoing Abbott v. Burke school finance case. Instead, the plaintiffs are seeking to help 60,000 students attending 97 schools choose schools they believe will better help them meet state standards.

Per-Pupil Aid

In those students’ current schools, either half the students are failing to meet state standards in reading and mathematics, or 75 percent of them fall below state standards in one of those subjects. Not all of the schools are in districts that are under court supervision in the state’s Abbott school finance case.

The new suit, Crawford v. Davey, asks that students in those schools be given the per-pupil allotments their districts receive for them and be allowed to use that money to pay tuition at a public or private school of their choice.

The request is “in essence money relief,” rather than judicial management of issues handled by school boards and other elected policymakers, said David Schoenbrod, a law professor at the New York Law School in New York City.

“The remedy sought here does not require a judge to administer a government program, and that to me is a virtue,” said Mr. Schoenbrod, who also is a senior fellow at the Cato Institute, a Washington-based think tank that takes a libertarian stance on policy questions.

But implementing school choice isn’t as easy as awarding grants to individuals, said one lawyer involved in school finance litigation. In the long-established voucher programs in Milwaukee and Cleveland, state and local officials are actively involved in overseeing how the programs are run and whether schools that receive the voucher money meet civil rights laws and educational criteria.

“You can’t just give money to people and let them do whatever they want with it,” said Michael A. Rebell, who represented plaintiffs in a case seeking additional financing for New York City public schools. “It’s government money.”

What’s more, Mr. Tractenberg said, school officials would have to assure that students receive an adequate education in the schools of their choice, meaning private schools would need to participate in the state’s accountability program to meet the criteria for successful schools in the lawsuit.

“Will private school be willing to subject themselves [to state accountability]?” Mr. Tractenberg said. If they weren’t willing, he added, how would a court know whether the vouchers actually remedied the problems of the public schools?

Preschool Precedent

Mr. Bolick, who spearheaded litigation that resulted in the 2002 U.S. Supreme Court decision declaring vouchers for religious schools to be permissible under the U.S. Constitution, said New Jersey is an ideal candidate to win a remedy favoring school vouchers.

The state supreme court has ruled in favor of the plaintiffs in a series of rulings in the long-running Abbott litigation. Through that case, the New Jersey high court has required the state to use specific curricula, undertake construction projects, and provide preschool opportunities.

Plaintiffs in Kentucky, Montana, and other states have won cases declaring those states’ school finance systems inadequate, which in turn has led to major school spending increases. (“States on Ropes in Finance Lawsuits,” Dec. 8, 2004.)

While the New Jersey voucher case doesn’t seek to intervene in the Abbott case or change the court-ordered efforts in the 30 districts that are supervised under the case, it does rely on court precedent that allows those districts to offer court-ordered preschool services in private settings.

“It’s essentially a voucher for use in private preschools … because the court recognized the need for an immediate remedy,” Mr. Bolick said in an interview. “That’s exactly what we’re asking for here.”

Three New Jersey-based groups filed the suit in the Superior Court of New Jersey in Newark on July 13. The Alliance for School Choice is providing legal assistance for the groups, which are the Black Ministers’ Council of New Jersey, in Orange, the Latino Leadership Alliance, in New Brunswick, and Excellent Education for Everyone, which has offices in Camden and Newark.

Lucille E. Davy, the state’s acting commissioner of education, said in a statement that she would not comment on the litigation, in which she is named as the defendant. But she added that she doesn’t think vouchers would fix failing schools.

“I think our job is to make sure that the public schools offer all students the kind of education they need and deserve if we expect them to be productive citizens in the 21st century economy,” she said.

A version of this article appeared in the July 26, 2006 edition of Education Week as Lawsuit Seeks Vouchers for N.J. Students

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Data Webinar
Education Insights with Actionable Data to Create More Personalized Engagement
The world has changed during this time of pandemic learning, and there is a new challenge faced in education regarding how we effectively utilize the data now available to educators and leaders. In this session
Content provided by Microsoft
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School & District Management Webinar
Accelerate Learning with Project-Based Learning
Earlier this year, the George Lucas Educational Foundation released four new studies highlighting how project-based learning (PBL) helps accelerate student learning—across age groups, multiple disciplines, and different socio-economic statuses. With this year’s emphasis on unfinished
Content provided by SmartLab Learning
School & District Management Live Online Discussion Principal Overload: How to Manage Anxiety, Stress, and Tough Decisions
According to recent surveys, more than 40 percent of principals are considering leaving their jobs. With the pandemic, running a school building has become even more complicated, and principals' workloads continue to grow. If we

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Justice Sotomayor Denies Bid to Block Vaccine Mandate for New York City School Employees
The Supreme Court justice's refusal involves the COVID-19 vaccine requirement in the nation's largest school district.
2 min read
In this Wednesday, Aug. 5, 2020 file photo, senior Clinical Research Nurse Ajithkumar Sukumaran prepares the COVID 19 vaccine to administer to a volunteer, at a clinic in London. British scientists are beginning a small study comparing how two experimental coronavirus vaccines might work when they are inhaled by people instead of being injected. In a statement on Monday, Sept. 14, 2020, researchers at Imperial College London and Oxford University said a trial involving 30 people would test vaccines developed by both institutions when participants inhale the droplets in their mouths, which would directly target their respiratory systems.
U.S. Supreme Court Justice Sonia Sotomayor on Oct. 1 denied a request to block a COVID-19 vaccine mandate for employees of the New York City school system.
Kirsty Wigglesworth/AP
Law & Courts Here Are the Upcoming Supreme Court Cases That Matter for Schools
Major cases on school choice and religious schools will be heard, along with a case on whether school boards can reprimand outspoken members.
9 min read
In this June 8, 2021 photo, with dark clouds overhead, the Supreme Court is seen in Washington.
The U.S. Supreme Court's new term opens in early October with several cases that could impact K-12 schools.
J. Scott Applewhite/AP
Law & Courts Families Sue Rhode Island's Governor to Overturn His School Mask Mandate
The families say mask-wearing threatens to cause serious and long-lasting damage on their children's physical and emotional well-being.
Linda Borg, The Providence Journal
2 min read
Students line up to have their temperature taken as they return for the first time as their school, The Learning Community, reopens to in-person learning after it closed for the pandemic a year ago, in Central Falls, R.I., on March 29, 2021.
Students line up to have their temperature taken as they return for the first time as their school, The Learning Community, reopens to in-person learning after it closed for the pandemic a year ago, in Central Falls, R.I., on March 29, 2021.
David Goldman/AP
Law & Courts Federal Judge Denies Parents' Suit to Block Florida's Ban on School Mask Mandates
The parents argued that their children, due to health conditions, were at particular risk if any of their peers attend school without masks.
David Goodhue, Miami Herald
3 min read
Florida Governor Ron DeSantis speaks at the opening of a monoclonal antibody site in Pembroke Pines, Fla., on Aug. 18, 2021. The on-again, off-again ban imposed by Republican Gov. Ron DeSantis to prevent mandating masks for Florida school students is back in force. The 1st District Court of Appeal ruled Friday, Sept. 10, that a Tallahassee judge should not have lifted an automatic stay two days ago that halted enforcement of the mask mandate ban.
Florida Governor Ron DeSantis speaks at the opening of a monoclonal antibody site in Pembroke Pines, Fla., on Aug. 18, 2021. The on-again, off-again ban imposed by Republican Gov. Ron DeSantis to prevent mandating masks for Florida school students is back in force. The 1st District Court of Appeal ruled Friday, Sept. 10, that a Tallahassee judge should not have lifted an automatic stay two days ago that halted enforcement of the mask mandate ban.
Marta Lavandier/AP