November 4, 1998

As counsel for the Abbott children, we have prepared this Opinion to clarify the Supreme Court’s specific rulings on supplemental programs. It is designed to assist district administrators, teachers, parents, community organizations, and others involved in planning their curriculum, budget, and facilities -- including their early childhood education plans and Five-Year Facilities Management plans -- under Abbott. The Opinion reflects our thorough reading and careful analysis of 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); and

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

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 these (Abbott) students to compete effectively in the economy and become successful citizens and members of their communities.

Abbott students have three basic rights:

Abbott students have a right to rigorous curriculum and instruction in all subject areas covered in the State Core Curriculum Content Standards. The curriculum must also be modeled after the high quality programs offered in successful suburban schools. This curriculum and instruction is commonly called "regular education." It is also called "standards-based education" or the "foundational education program."

Abbott students also have a right to extra or additional programs that help them overcome the extreme disadvantages of growing up in urban poverty. These programs are commonly called "supplemental programs."

Abbott students have a right to safe and educationally adequate facilities that comply with health, safety, and building codes; eliminate overcrowding; and contain sufficient space to deliver both a rigorous curriculum (regular education) and all needed supplemental programs.

Every Abbott elementary school must provide rigorous curriculum and instruction in all subjects covered in the State content standards. These subjects are language arts (reading, writing and literature), mathematics, science, social studies, world languages, the arts (visual and performing) and comprehensive health and physical education. Technology must be included throughout the entire curriculum. Instruction must stress critical thinking, decision making and problem solving skills.

Each school must have enough general and specialized teachers, supervisors, student and other support services to offer this curriculum to every student, including students with disabilities and students with limited English proficiency. Abbott schools must model their curriculum on the programs in successful suburban schools, and on their own research, experience and best practices.

In 1997, the Supreme Court ordered 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 funding must be used to support a rigorous curriculum in all Abbott schools. In 1998-99, the per-pupil amount of funding at parity is $8800. Abbott mandates that parity funding continue indefinitely.

The Supreme Court gives several reasons why Abbott students need supplemental programs: (1) obstacles to a thorough and efficient education exist "not only in the schools themselves, but also in the neighborhoods and family conditions of poor urban children"; (2) "drug abuse, crime, hunger, poor health, illness and unstable family situations" are "significant barrier[s]" to education; (3) economic and racial isolation also foster student disadvantage; (4) when urban children start school, they may be two years behind suburban children; (5) achievement gaps increase as "urban students move through the educational system without receiving special attention"; (6) urban children have needs "beyond" those of suburban children, arising from "an environment of violence, poverty, and despair." Supplemental programs are "a fundamental prerequisite" to give Abbott students "a fair chance" for academic success.

Yes. In 1997, the Supreme Court ordered the Commissioner to identify the special needs of Abbott students and to recommend supplemental programs to address those needs. The Commissioner’s study, submitted in November 1997, reviewed national research and recommended several programs. The study did not assess the needs of actual students in the Abbott districts to determine the specific type and intensity of programs to provide in each district.

Yes. The Commissioner recommended a package of supplemental programs consisting of three components: (1) an instructional improvement program, with Johns Hopkins’s Success for All as the presumptive model, (2) other specific supplemental programs, and (3) changes in school management. The Supreme Court accepted these recommendations, but only as a starting point. At a minimum, every Abbott elementary school must contain each of these three components.

The Supreme Court also requires Abbott elementary schools to provide more than the Commissioner’s minimum programs, if needed by the students in the school.

So, if students need more intensive programs than those recommended by the Commissioner -- or programs that the Commissioner did not recommend at all -- their school and district must provide them. The Court emphasizes that "the provision of supplemental programs involving necessary services should not be detached from the actual needs of individual Abbott schools or districts."

"Whole school reform" is a term used in different and often confusing ways. Sometimes it is used to describe Johns Hopkins’ Success for All program or other school improvement programs. It is also been used to refer to changes in school management or to the Commissioner’s recommended supplemental programs.

Under Abbott, "whole school reform" has a specific meaning. It refers to the overall effort by parents, teachers and principal of a school to "integrat[e] reform throughout the school as a total institution." It is the "coherent and concerted process" that each Abbott elementary school must undertake to combine a rigorous curriculum in all of the subject areas (regular education) with all required supplemental programs into an effective "whole school" package that meets the needs of all students.

Every Abbott elementary school must have a program to improve the quality of instruction in all subjects. This instructional program must include the following minimum components:

Each school must have a full-time facilitator, to provide leadership in implementing the school’s instructional improvement program. The facilitator will be responsible for keeping up with educational research, planning the program, and assisting and advising teachers at the classroom level. The facilitator is also part of the school’s family support team.

Abbott requires high quality preschool for all 3 and 4 year old children. Each elementary school must work directly with the district’s preschool programs to integrate their curriculum and instruction with its instructional improvement program.

Each school must have enough trained teachers to provide reading instruction in groups of no more than 15 students, for at least 90 minutes per day. Abbott requires each school to make an intensive effort to improve reading skills so that all students are reading at grade level by the third grade.

Each school must have professional development for teachers that is "continuous, focuses on student achievement of the [content standards], and is based on ongoing professional renewal." At a minimum, the school must provide six staff development days each school year, as well as three days of training for teachers before the school year. Professional development also includes the specific training package for Success for All or other alternative programs adopted by the school.

Each school must have "well-designed textbooks, alignment, and instructional group and classroom activities," based upon the State content standards in all subject areas. These resources must include the curriculum development and materials required by Success for All or other alternative programs adopted by the school.

Every Abbott elementary school must have the following supplemental programs, at the minimum level recommended by the Commissioner:

Each school must provide "well-planned, developmentally appropriate" full-day kindergarten programs for five-year-olds. Because of the "acute" need for this program, it must be implemented "immediately."

B. Family support team (social and health services)

Each school must have a family support team to meet the "pervasive and urgent" need of students for social and health services. At a minimum, the family support team includes a full-time school social worker, school nurse, the instructional facilitator, parent liaison, and school counselor. This team is responsible for intervening "to solve behavioral, nutritional, attendance and other problems" and for making referrals to health and human services as necessary.

To meet this requirement, elementary schools of 500 K-5 and 84 preschool students must have a full-time social worker, school nurse and school counselor on-site. Schools with greater enrollments will require more staff to meet student need.

C. Parent involvement programs

Each school must have a full-time parent liaison to promote effective parent participation in school management, develop programs for parents and provide other opportunities for parent involvement. The parent liaison is also part of the family support team

D. Instructional technology

Each school must have one computer for every five students, beginning in kindergarten. Each school must also have two full-time media/technology specialists, one "to ensure that school and classroom libraries have appropriate materials to supplement the curriculum," and one "to facilitate the implementation and use of educational technology throughout the school."

Each school must have one full-time security guard for every 535 students. Elementary schools with larger enrollments will require more staff to meet student need.

Yes. Under Abbott, "the particularized needs" of the students must "drive the determination of what programs should be developed" by Abbott elementary schools and districts. Abbott therefore mandates each school and district to decide what level of supplemental programs are needed to serve its own students. If a school’s students need a supplemental program at a more intense level, the school and district must demonstrate those needs to the Commissioner. Once the need for more intensive programs has been demonstrated, the Commissioner must authorize those programs and provide all of the funding necessary to implement them.

Abbott recognizes that the particularized needs of students might well require more intensity than the minimum programs offer. So, for example, if students in a given elementary school need social and health services to be located on-site, the school and district must demonstrate the need for on-site services to the Commissioner. The Commissioner, in turn, must approve the program and provide adequate funding for the school to implement the needed services.

Yes. The Supreme Court requires Abbott elementary schools and districts to provide supplemental programs in addition to those specific programs recommended by the Commissioner. Here again, if students in a given school need a particular program not included in the minimum package mandated for all schools under Abbott, the school and district must demonstrate the need for the additional program to the Commissioner, who then must "obtain the funds necessary" to implement the program.

The Supreme Court recognized the merits of three additional supplemental programs -- summer school, after-school programs and extra nutrition. If an elementary school decides its students need these or other additional programs, the school and district must provide them, with adequate funding from the Commissioner.

Each Abbott elementary school and district must thoroughly assess the particularized needs of their actual students in order to identify and design programs most appropriate for them, and to decide whether the minimum programs recommended by the Commissioner are enough. Only with comprehensive information about their students can districts make the "fact-sensitive and complex" determination of "the special needs of at-risk children and the programs necessary to meet those needs."

Every Abbott elementary school must implement the following changes in school management, as recommended by the Commissioner to the Supreme Court:

Each school must have its own site-based management team – comprised of teachers, administrators, and parents. Under Abbott, the main tasks of the site team are to make certain that its school has a rigorous curriculum (regular education) and all needed supplemental programs. These teams must also decide whether the students need additional programs, such as after school or summer school.

Each school must also prepare a yearly budget for the school’s entire educational program. To develop this budget, the school must first decide what regular education and supplemental programs their students need and the cost of these programs. Next, the school must compare this cost with existing funding on hand. Last, if extra funding is required, the school and district must request it from the Commissioner. Under Abbott, the Commissioner must provide the school with the extra funds needed to support all of the school’s programs.

Yes. The State must fully fund all supplemental programs that an Abbott elementary school and district demonstrate are needed for their students. This means that schools and districts are no longer limited to current funding levels.

No. The Supreme Court prohibits any rollback of regular education or needed supplemental programs. Of course, each school and district must carefully review all existing programs to make sure they are effective. However, a school and district cannot reallocate funds away from any existing, effective programs. 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 program or already existing supplemental programs."

Under Abbott, the Commissioner can review a request for extra funding from an Abbott district for needed supplemental programs. The Commissioner’s review of these requests is very limited. The Commissioner must defer to the decisions of Abbott schools and districts 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 the funding.

Yes. The Supreme Court anticipates that disputes may arise between the Commissioner and the Abbott 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..."

The Supreme Court has designated these Abbott disputes as "controversies" under the School Laws. The district must, first, file an appeal with the Commissioner and seek to have the dispute resolved by an Administrative Law Judge. The Law Judge would conduct a hearing in which the Commissioner would be required to defend his decision to override the needs-based decisions of Abbott school officials. A decision can then be appealed directly to the Appellate Division and then to 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."

Education Law Center will continue to make every effort to work closely with State officials to help them to anticipate and solve problems with implementation of Abbott facilities improvements. ELC, on behalf of the Abbott students, can utilize a procedure – a Motion in Aid to Litigants’ Rights – to ask the Supreme Court to address disputes over State policies that cannot be resolved through administrative or legislative action. According to the Court, "[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."

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.