On June 24, 2003, the NJ Supreme Court issued its Order in Abbott v. Burke (Abbott X).  This decision accepted the agreement by the Department of Education (DOE) – made in mediation with Education Law Center (ELC) -- to withdraw its request to eliminate the Abbott V (1998) mandates for whole school reform (WSR) and supplemental programs.  The decision also accepts the DOE agreement to withdraw the proposed Abbott regulations, and directs that they be replaced by new draft regulations consistent with the Abbott decisions and the Abbott X Order. 

            ELC has already widely distributed the Abbott X Order, including the Attachment Chart on Supplemental Programs.  If you have not yet received this material, it is available directly on our website.

             This memorandum provides clarification and advice on the meaning, scope and duration of the Abbott X Order.  We urge this information be shared with all interested stakeholders, and guide short-term planning for implementation of WSR in September.          

1.         Impact of Abbott X on the Abbott V Mandates

            The Abbott X Order reaffirms that the Abbott V (1998) mandates remain permanently in effect.  This means that, unless and until otherwise modified by the Court in the future, schools and districts must continue to implement WSR and supplemental programs as required by Abbott V, and as amplified by specific improvements agreed to in mediation and contained in the Abbott X Order. 

RECOMMENDATION:  All interested stakeholders should carefully review the Abbott V ruling, along with the improvements to implementation set forth in the Abbott X Order and Attachment Chart on Supplemental Programs.  These documents are readily available on our website.

2.         New Abbott Regulations

            A major obstacle to effective implementation since Abbott V (1998) has been the insufficiency and inadequacy of the Abbott regulations.   To address this problem, the Abbott X Order directs the development of new regulations through a process called “Cooperative Rulemaking.”  Representatives of key stakeholders will be jointly convened by DOE and ELC to review and, where necessary, revise the draft of new regulations prepared by DOE, with the objective of reaching consensus on a final draft. This group must complete this effort over the summer in order guide implementation consistent with Abbott V and the Abbott X Order beginning in September.

RECOMMENDATION:  Except as noted below, further planning for implementation of WSR and supplemental programs for 2003-04 and beyond must await promulgation of the new regulations to be developed through Cooperative Rulemaking.   

3.         Whole School Reform Funding

            The continuation of WSR in every elementary school in 2003-04 will require adequate funding to support the technical assistance and professional development provided by WSR Developers and, where permitted and appropriate, to support implementation of alternate whole school reform designs.

RECOMMENDATION:  Abbott districts must include in their 2003-04 budget sufficient funds to support a contract with a WSR developer or other provider of technical assistance and professional development in every elementary school.  If necessary, those districts currently appealing their 2003-04 budget decision should immediately amend those appeals to include a request for sufficient funds to meet this requirement.

4.         Whole School Reform Contracts

            As discussed above, all elementary schools must continue to implement WSR.  All schools must automatically continue contracting with WSR developers, except schools designated by DOE as “low” or “high” performing; those that did not have a contract in 2002-03; and those that are dissatisfied with developer performance under the contract. 

Under the Abbott X Order, each exception listed above has unique definitions, standards and procedures for school reviews, complaints and/or investigations that may or may not result in a decision to select a WSR model other than the adopted model, or to develop and implement an “alternate WSR design.”  The Order further directs the development of regulations to implement these specific requirements for schools that may fall under one of the exceptions.

RECOMMENDATIONS: 

(A) Districts should assist all schools, through the SMIT, to negotiate and contract with their WSR developer for 2003-04, except for those schools falling within one of the exceptions identified above.

(B) Districts should assist the SMIT of any school designated by DOE as “high performing” to negotiate and contract with the adopted WSR developer for 2003-04 if the SMIT is satisfied with their WSR model;

(C) Districts should assist the SMIT of any school without a WSR contract in 2002-03 to re-negotiate and re-contract with its adopted model if the SMIT seeks to resume a relationship with that model in 2003-04; and

(D) Districts must delay further planning and decision-making on WSR for all other schools falling under one of the exceptions above until such time as the required regulatory guidance is promulgated. 

5.         Reading First Grants

            The DOE has withdrawn its proposal to replace the rigorous Abbott V early literacy program with the NCLB Reading First grant requirements.  Moreover, the literacy component of Success for All – which form the basis of the supplemental program literacy requirements of Abbott V, as reaffirmed in the Abbott X Order – meets the criteria for Reading First grants. 

In general, the Abbott V mandates are more rigorous and provide more resources than NCLB. There is also no legal inconsistency between Abbott and NCLB. 

RECOMMENDATION: The services available under a Reading First grant should be integrated into the literacy component of Abbott WSR implementation.  Under no circumstances can a district or school replace Abbott WSR with Reading First.

ONGOING ASSISTANCE FROM ELC

We recognize that, until adequate regulations are promulgated, questions will arise concerning the categorization of certain schools, relations with developers, and short-term decision-making.  Please feel free to contact Dr. Steve Block in our office with any questions regarding the recommendations in this memo and/or to seek our assistance resolving any problems you may have with the WSR developers.