ABBOTT OPINION # 5

December 10, 1998

PLANNING PROGRAMS AND
BUDGETS IN ABBOTT SCHOOLS

We have prepared this Opinion to help clarify the Supreme Court's specific rulings in Abbott v. Burke on planning programs and budgets in Abbott schools. It is designed to assist district administrators, teachers, parents, community organizations, and others involved in planning curriculum, supplemental programs and budgets under Abbott. This Opinion is not the actual Supreme Court rulings, but reflects our thorough reading and careful analysis of those rulings. To prepare this Opinion, we have reviewed the following:

• The Supreme Court's opinions in Abbott v. Burke, particularly Abbott V, 153 N.J. 480 (1998), and Abbott IV, 149 N.J. 119 (1997);



• Report and Decision of the Remand Court (Judge Michael Patrick King), Appendix I to Abbott V, 153 N.J. 480, 529 (Jan. 22, 1998);



• Recommendations for Resolving New Jersey Abbott v. Burke IV, after the November and December 1997 Hearings, Allan Odden, Appendix II to Abbott V, 153 N.J. 480, 637 (Dec. 30, 1997);



• A Study of Supplemental Programs and Recommendations for the Abbott Districts, New Jersey State Department of Education (November 1997); and



• Abbott Regulations, N.J.A.C. 6:19A-1.1 - 6.5.

QUESTIONS ADDRESSED

1. What is a "thorough and efficient education" for Abbott students?

2. What programs must be provided in all Abbott schools?

3. Are schools and districts responsible for planning and budgeting these programs?

4. Why is school-based management under Abbott unique?

5. What happens to existing SMTs?

10. What programs must be included in school-based plans?

12. Does the SMT decide what staff and other resources are needed?

17. Are schools required to reduce special education programs?

19. What happens when a school requests extra funding?

21. Can the students be heard in Abbot disputes?

RESPONSES

1. What is a "thorough and efficient education" for Abbott students?

The New Jersey Constitution requires that every child receive a "thorough and efficient" education. For students in poorer urban (Abbott or Special Needs) districts, the Supreme Court defines this education as one that will prepare them to compete effectively in the economy and become active citizens in their communities.

2. What programs must be provided in all Abbott schools?

The Supreme Court requires that every Abbott school -- elementary, middle and high schools - provide an education that has two program components:

A. Rigorous standards-based education programs

Each Abbott school must offer rigorous curriculum and instruction so that students can achieve the New Jersey core curriculum content standards ("standards") in all subject areas, and acquire important life and learning skills. This "standards-based education" must be modeled after the high quality programs offered in successful suburban schools. Abbott standards-based education is also called "regular education" or the "foundational education program."

B. Supplemental programs

Abbott schools must also offer extra or additional programs that help their students overcome the extreme disadvantages of growing up in poverty. These programs are commonly called "supplemental programs." Supplemental programs are "a fundamental prerequisite" to give all students "a fair chance" for academic success.

3. Are schools and districts responsible for planning and budgeting these programs?

Yes. The Supreme Court accepted the Commissioner of Education's recommendation that each Abbott school be managed by a school management team (SMT) comprised of staff, parents, and community representatives. This is called "school-based management." Each district has a policy on SMT selection and composition.

The SMT must make sure that the school has all the regular and supplemental programs required by the content standards, the Abbott rulings, and the particular academic, social and health needs of students. SMTs are therefore empowered and entrusted to carry out critical constitutional responsibilities under Abbott.

4. Why is school-based management under Abbott unique?

A number of urban school districts, including Chicago, use school-based management as one way of improving academic performance. SMTs in these districts try to provide educational programs within severe budget constraints. These SMTs have a difficult job because the pre-set budgets are usually insufficient to support all of the educational programs needed by the students.

In contrast, school-based management under Abbott is driven by the program needs of the school's students. Abbott SMTs first plan how the school will provide all of its students with the Abbott educational program -- rigorous standards-based education and all required and needed supplemental programs. Only then, and without regard to any pre-set funding level, does the SMT prepare a school budget. If current funds cannot support the school's program, the SMT and the district must file a request for more state funds with the Commissioner who, in turn, must provide the extra funds.

Some schools currently have some form of school-based management. These existing SMTs must make all necessary changes to ensure compliance with the district's new SMT policy and to carry out their new responsibilities under Abbott.

The process of school-based planning under Abbott involves eight critical steps. Each SMT must:

Schools and districts jointly share the responsibility for school-based management. Districts should support the SMTs through training and technical assistance in needs assessment and program design, evaluation, budgeting and management. Districts must review the school-based plans and budgets and, with the SMT, seek extra funding from the Commissioner, if needed. Finally, districts should monitor and coordinate the schools' programs and practices to ensure program quality, compliance with Abbott, and parity across all schools in the district.

School-based program plans and budgets must be driven by the academic, social and health needs of students. Further, existing programs must be evaluated on an ongoing basis. These tasks require SMTs to develop the capability to use proven research and evaluation methods. Schools may currently lack this capability. It is critical, therefore, for SMTs to seek technical assistance and training from their district, and from expert consultants and/or higher education. Funds to support these activities can be included in the school-based budget.

Yes. As SMTs learn more about needs and programs through experience, research and evaluation, they should amend and modify plans and budgets on an ongoing basis. This is particularly important because some of the deadlines imposed by the Department of Education (DOE) give SMTs little initial opportunity to assess student need and to make careful decisions about programs and budgets. School-based plans should be living documents, and evolve over time in order to fully respond to student need and to assure effective implementation of Abbott.

Every Abbott school must provide (1) rigorous standards-based education in all subjects covered by the New Jersey standards; (2) the minimum supplemental programs required by the Court for the school's grade levels; and (3) all other supplemental programs that a school's students need. For more detail about these requirements, see Abbott Opinions #3 and 4 on supplemental programs and whole school reform in Abbott schools, available from ELC.

SMTs must evaluate whether existing programs are effective, research-based, and consistent with the new school-based plan. Based on these factors, the SMT can decide which existing programs should be kept, which require improvement, and which, if any, should be replaced by new programs.

Yes. SMTs must plan for all the resources necessary for the successful implementation of these programs and for the school as a whole. Plans and budgets must include enough resources -- for example, general and specialized teachers, supervisors, materials, equipment, and support services -- to offer the Abbott school-based program to every student, including students with disabilities and students with limited English proficiency.

As part of "school-based budgeting," SMTs must review all available funds to determine whether there are enough funds on-hand to meet total program needs or whether extra funding is needed from the Commissioner. Abbott schools currently receive funding from the following sources:

A. Parity-level funding

A 1997 Supreme Court order required the State to increase funding for regular education in the Abbott districts to an amount equal to spending in successful suburban schools. This is commonly called funding "at parity." Parity-level funding is currently available to each school to support rigorous standards-based education in all subjects. In 1998-99, the per-pupil amount of funding at parity is $8100 for elementary schools, $8897 for middle schools, and $9787 for high schools. Abbott mandates that funding for standards-based education at parity continue indefinitely.

B. DEPA funding

The State currently provides Abbott districts with separate funding for supplemental programs, called Demonstrably Effective Program Aid (DEPA). In 1998-99, the Abbott districts received a total of approximately $100 million in DEPA funds. Each district's portion is determined by the number of poor students in the district.

C. ECPA funding

The State provides Early Childhood Program Aid (ECPA) for kindergarten and preschool programs. In 1998-99, ECPA aid to the Abbott districts totaled $200 million.

D. Title I funding

Abbott schools receive federal Title I funding for programs such as after-school and parent training. Funding for each school is based on the number of low-income students it serves.

E. Special education funding

Abbott schools receive separate funding to serve students with disabilities. In 1998-99, Abbott districts received a total of approximately $150 million for special education programs.

F. Bilingual education funding

Abbott schools receive funding to serve students with limited English proficiency.

Probably not. In Spring 1998, the Commissioner stated to the Supreme Court that current funding would be sufficient to support both a rigorous standards-based education and all supplemental programs in every Abbott school. This representation was not based on any actual school program or budget, but rather on "illustrative school budgets" created by DOE.

The Commissioner's "illustrative budgets" were sharply criticized on several counts. First, these budgets did not contain sufficient specialized teachers to provide standards-based instruction in all subject areas at all grade levels. Second, the budgets assumed that, through "neverstreaming," virtually no students with disabilities would need specialized instruction in self-contained classrooms, in resource rooms, or in the regular classroom with supports. Finally, the budgets assumed that some existing staff positions - assistant principals, guidance counselors, etc. - could simply be reassigned to fill positions in new supplemental programs.

Faced with this critique, the Supreme Court accepted the illustrative budgets only as minimums, and did not rule whether current levels of funding were adequate to support the entire Abbott program. Instead, the Court gives the Abbott schools and districts -- and not the DOE -- the responsibility to decide if current funding is sufficient to provide both standards-based education and all supplemental programs.

Yes. The Commissioner represented to the Court that the State would fill in any gaps between current and needed funding in school-based budgets. The Court accepted this representation as a "clear commitment that if a school has a need for additional funds, the needed funds will be provided and secured" by the Commissioner.

The Court also ruled that "adequate funding" remains "critical" to providing a thorough and efficient education in Abbott schools. The Court emphasizes that the Abbott schools must have sufficient funding to provide the full Abbott program. For example, if schools do not have enough current funding for art, music, special education, science, reading or other programs, the Commissioner "shall ... ensure the funding and resources necessary for their implementation."

No. The Supreme Court prohibits any rollback of standards-based education or required and needed supplemental programs. Of course, SMTs must carefully review all existing programs to make sure they are effective, respond to the needs of students, and are appropriate components of the new overall school-based plan. They may then determine that some program expenditures or staff assignments are no longer necessary, and instead should be redeployed.

However, a school cannot reassign staff or reallocate funds from any existing, effective program. The Court states that "funds may not be withdrawn from or reallocated within the whole school budget if that will undermine or weaken either the school's foundational education [standards-based] program or already existing supplemental programs."

Schools also cannot just designate existing staff to fill positions in new supplemental programs while retaining current responsibilities. The Court requires supplemental programs and positions - such as community services coordinators for social and health services - precisely because existing programs and staff cannot meet the needs of Abbott students. These needs are not addressed by simply adding or changing staff titles. SMTs are required to make their program decisions based upon the Abbott program requirements and a thorough assessment of student need.

No. As discussed in Question 14, the Supreme Court did not accept the Commissioner's proposal for drastically reducing special education through "neverstreaming." Instead, the Court ruled that effective special education programs cannot be reduced or eliminated. In fact, the Court ruled that "in schools where neverstreaming does not or will not work, additional funds may be required to implement traditional special education services, including the hiring of teachers trained in special education and the provision of specially designed or equipped rooms." Once again, Abbott schools and districts have the responsibility to make sure that the needs of students with disabilities are fully met. Also, for the first time, Abbott schools and districts can now obtain more state funds for special education funding, if needed.

Abbott requires the Commissioner to provide any additional funding for programs to meet student needs. It is therefore critical for SMTs to evaluate educational research and carefully assess student needs and programs. Student needs and proven research, and not pre-set budgets, are the anchor for school-based plans. SMTs should begin gathering this information immediately. For example, research on the effectiveness of after-school programs would support starting an after-school program, while information on the impact of the program would support expansion in future years.

It is important to note that a school does not have to prove that test scores will immediately rise in order to justify a request for a supplemental program. Under Abbott, "[t]he fact that the educational dividends [of a supplemental program] may not be immediately apparent or easily measurable does not render them in any sense ancillary to the achievement of a thorough and efficient education."

Under Abbott, the Commissioner can review a request for extra funding from Abbott schools and districts. However, the Commissioner's review of these requests is very limited. The Commissioner must defer to school-based decisions because "local educators are in the best position to know the particularized needs of their own students." Once a school and district demonstrate the need for extra funding, the Commissioner's job is to provide it.

Yes. The Supreme Court anticipates that disputes may arise between the Commissioner and the Abbott schools and districts in implementing supplemental programs. These disputes "will involve issues arising from the implementation, extension, or modification of existing programs, the allocation of budgeted funds, [and] the need for additional funding ...."

Districts can challenge an initial decision by the Commissioner to deny a request for extra funding by filing an administrative petition. Districts can also challenge a final decision by the Commissioner in the appellate court and then in the Supreme Court. As the Court states, "[i]n this way, districts and individual schools will be accorded full administrative and judicial protection in seeking the demonstrably-needed programs, facilities, and funding necessary to provide the level of education required by ... the Constitution."

Yes. The Education Law Center will continue to represent the 300,000 students and preschool children, to enforce their constitutional rights under Abbott. The Supreme Court recognizes that "[t]he lessons of the history of the struggle to bring these children a thorough and efficient education render it essential that their interests remain prominent, paramount, and fully protected." ELC urges parents, relatives, caretakers, community leaders, and concerned citizens to contact us if you have a complaint or concern about the Abbott programs.

Abbott Opinions are written and distributed by Education Law Center on specific issues pertaining to Abbott v. Burke. This Opinion is part of ELC's on-going effort to assure effective and full implementation of the remedies ordered by the Supreme Court.