To: Lucille Davy, Governor’s Counsel for Education Policy/Chair
Abbott Implementing and Compliance Coordinating Council (AICCC)
 
From: David G. Sciarra, Executive Director
 
Cc: Members of AICCC
 
Re: "Abbott Phase II: Standards-Driven Classroom Reform"

Date: October 15, 2002

Thus, the June 11^th Abbott Order -- and ELC’s support for a limited, one-year relaxation of some of the Abbott remedies -- is expressly predicated on the DOE resuming implementation and funding of all remedies in 2003-04, under revised regulations governing programs, school and district budgeting, and State funding.

On October 11, 2002, the DOE issued K-12 program plan and budget guidelines to Abbott districts. The guidelines are entitled "Abbott Phase II: Standards-driven Classroom Reform," and direct districts and schools to submit a Three-Year Operational Plan by July 15, 2003, and One-Year (2002-03) School-Based Budgets by December 13, 2002.

As noted in the Introduction, the Phase II guidelines are based upon the efforts of the K-12 Working Group on School Improvement. ELC appreciates the commitment of Assistant Commissioner MacInnes in bringing a diverse group of stakeholders together with education experts to propose needed changes in implementation of the Abbott K-12 programs and reforms, especially the Abbott V requirement for implementation of whole school reform (WSR) models. While the K-12 Working Group has yet to issue final recommendations, their thoughtful deliberations have created a solid foundation for correcting a host of legal and practical flaws that have impeded full, effective and timely implementation of the Abbott remedies since 1998.

ELC also supports the overall direction of the changes contained in the Phase II guidelines, particularly the shift from implementation of "one-size fits all" national models and illustrative budgets to assessment driven program plans and budgets for standards based reform and supplemental programs. ELC also endorses the change from annual to three-year program plans to satisfy both the Abbott mandates and those under the federal No Child Left Behind law, and the directive for a district central office plan. As you know, ELC has been advocating for these, and many other changes in Abbott implementation since 1998, most notably in our appeal of the Abbott regulations now pending before the Supreme Court. See In Re The 2000-05 Abbott v. Burke Implementing Regulations, 348 N.J. Super. 382 (App. Div. 2002); Sup. Ct. Dkt. No. 52, 740 (Sept. 24, 2002) (Order extending time to March 24, 2003 for petition for certification to facilitate revision of Abbott regulations).

By releasing the Phase II guidelines, the DOE has commenced a planning and budgeting process under Abbott that significantly deviates from, or directly implicates, the Abbott mandates for WSR, standards based reform, supplemental programs, supplemental funding, and State decision-making and district appeals. DOE also indicates, however, that these guidelines are "evolving" and, therefore, subject to amendment.

To ensure that the next phase of Abbott implementation, as presently contemplated by DOE, fully adheres to, and is consistent with Supreme Court directives, ELC requests that DOE promptly take the following steps:

• seek Supreme Court approval for those elements of the guidelines that would alter any of the Abbott V mandates; and
   
• provide necessary clarifications of the Phase II guidelines to facilitate effective and timely district submission of 2003-04 budgets and funding, and the three-year operational plans, and DOE decisions on those budgets and plans.

Each of these recommendations are more fully explained below.

1. Supreme Court Approval

ELC’s preliminary review of the Phase II guidelines has identified significant alterations of the Abbott V mandates that cannot be implemented without Supreme Court approval. Given that these mandates were based upon a full evidentiary record before the Remand Court in 1997, an application for alteration of these mandates will require submission of substantial supporting evidence and documentation, including, at a minimum, a detailed description of each Abbott V component to be modified and the justification for the proposed change.

(a) Whole School Reform (WSR) Models

The Phase II guidelines expressly instruct districts and schools that the Abbott V mandate for the adoption of national WSR model, with Success for All (SFA) as the presumptive model, will be lifted. Instead, schools will be permitted, based upon assessment, to select from a range of options, including continuation or modification of an existing model; replacement with another model; or selection of another source of technical assistance and professional development, such as universities, consultants and other agencies.

(b) Supplemental Programs

According to the Assistant Commissioner, the DOE will implement "a more flexible arrangement of supplemental services to the WSR model than contained in prior Abbott decisions." Such an arrangement for implementation of Abbott supplemental programs and services would significantly alter -- and directly conflict with -- the Abbott V mandate for required and needed supplemental staff, programs and services in all Abbott elementary and secondary schools.

(c) Supplemental Funding

For 2003-04, the Phase II guidelines would limit districts’ opportunity for supplemental funding to "restoration of positions, programs and services reduced in the 2002-03 school year budget due to the one-year time-out and documented as essential for student achievement and responsive to significant student need." This guideline significantly restricts the Abbott V mandate for supplemental programs by limiting program restoration opportunities to those "essential for student achievement," and not solely responsive to student need, as the Court directs in Abbott IV and V. This restriction, therefore, makes it unlikely that schools and districts will have the opportunity to restore Court-mandated and authorized programs such as health and social services, security, technology, art and music, parent involvement, nutrition and non-academic aspects of after-school and summer programs.

This Phase II guideline on supplemental funding also further restricts the Abbott V remedies by limiting supplemental program implementation to the level achieved by Abbott districts and schools in the 2001-02 school year. Again, such a restriction would fundamentally alter and conflict with the Abbott V mandate for implementation of supplemental programs and the provision of supplemental funding based on demonstrated need.

2. Clarification of Guidelines

A preliminary analysis of the Phase II guidelines also indicates the urgent need for further detail and clarification in order to assure that the guidelines fully comply with all Court-ordered requirements. Such clarification is essential to assure full, effective and timely implementation by Abbott schools and districts, and will facilitate the proper disposition of ELC’s pending appeal on the Abbott regulations. The questions that require clarification by DOE include the following.

(a) 2003-04 School and District Budgets

• What specific criteria are school management and improvement teams (SMITs) to use in proposing modifications and/or increases to the 2003-04 draft budget prepared by the central office?
   
• What criteria will be used by central office to approve modifications and/or increases proposed by SMITs?
   
• Who will resolve budget disputes between the SMIT and central office?
   
• Given the elimination of the existing "particularized need" procedure, how will the central office determine the district need for supplemental programs and funding, and what format will districts use to request such funding from DOE?
   
• What criteria and timetable will DOE use to review district requests for supplemental funding?
   
• What format will districts use to request supplemental or additional funds for preschool programs, if needed, and what criteria and timetable will DOE use to review such requests?
   
• What enforcement mechanism will DOE use to ensure that the SMIT and central office properly execute their respective roles and responsibilities in drafting, modifying and approving 2003-04 school and district budgets?
   
• What format will districts use to request additional supplemental funding after 2003-04 district budgets have been adopted and submitted, and what criteria and timetable will DOE use to review such requests?
   
• Will districts be notified that they should include a sufficient line-item in school budgets for technical assistance and professional development, particularly for cohort 3A schools, to support assessment driven decisions about model retention or replacement?

(b) DOE Decisions and District Appeals on 2003-04 Budgets

• What deadlines will be established for DOE final decisions on district budgets?
   
• What deadline will be established for districts to file a notice of appeal of DOE final decisions, and for such appeals to be transferred to the Office of Administrative Law?
   
• Will DOE seek approval from the Supreme Court to establish a schedule for the disposition of district appeals by the Office of Administrative Law and the Superior Court, Appellate Division in order to assure timely resolution of all appeals prior to the end of the school year and before the State budget is finalized?

(c) 2003-04 Funding

• Will parity level foundational funding be maintained?
   
• Will discrete funding be provided for the second half of kindergarten?
   
• Will any cost of living increase cover actual increased costs?
   
• Will additional, dedicated preschool funds be provided to fully fund approved programs, as needed?

(d) Three-Year Operational Plans

• When will DOE needs assessment instrument be completed?
   
• Will the instrument address each discrete area of student and school need identified in Abbott V?
   
• Will the DOE assess SMIT and district capacity to effectively and efficiently collect and analyze the data essential to the new assessment process?
   
• Will the DOE provide sufficient training to the SMIT and central office in the effective and efficient use of the needs assessment instrument?
   
• Where the SMIT and/or central office capacity is insufficient, will the DOE provide funding to facilitate the timely completion of the required needs assessment?
   
• What is the current status of DOE’s proposed student database, and will any information from that database be available for the SMIT and central office to use in the needs assessment process?
   
• Will DOE be able to collect, analyze and aggregate the needs assessments submitted by Abbott schools, and make such analyses publicly available?
   
• What enforcement mechanism will DOE use to ensure that the SMIT and central office properly execute their respective roles and responsibilities in completing the required needs assessment?
   
• Will the guidelines be modified to require that the Three-Year plan include a phase-in of all of the Abbott remedies, consistent with Abbott V or any modifications thereto?
   
• Will DOE review the adequacy of the Three-Year plans to assure that the plans sufficiently respond to assessed student and school needs, includes a phase-in of all Abbott remedies, and fully complies with the Phase II guidelines, revised Abbott regulations, and the Abbott mandates, as modified by the Supreme Court?
   
• Will DOE establish budgeting and funding protocols and instructions for off-schedule requests for supplemental funding, if needed to implement the Three-Year Plan? (See page 8 of the guidelines).

(e) School Governance

• Will the guidelines be modified to address growing concerns regarding insufficient specificity of the role and responsibilities of SMITs?
   
• What enforcement mechanism will be established to assure appropriate participation of all stakeholders in SMITs, and effective Team training and operations?

3. Proposed Action

By issuing the Phase II guidelines, the DOE has launched a "dramatic shift" in Abbott implementation, without any field testing or piloting in selected schools and districts. As result, the concerns raised in this memorandum require immediate attention.

Among the tasks delineated by Governor McGreevey for the Abbott Implementation and Compliance Coordinating Council (AICCC) is to review issues related to Abbott implementation in order to "assure State compliance with Court mandates," including seeking "Court approval of adjustments and modification of Court mandates as needed." Executive Order No. 6, ¶5 and 9 (Feb. 19, 2002).

In furtherance of the objectives of the AICCC, ELC proposes that DOE undertake the following action:

• File the appropriate application with the Supreme Court seeking approval of all modifications of the Abbott mandates;
   
• Seek and obtain the support of ELC, Abbott superintendents and other stakeholders for the Court application before it is filed;
   
• Issue promptly the requested clarifications of the Phase II guidelines;
   
• Propose revisions to the Abbott regulations sufficient to remedy the deficiencies in the Phase II guidelines, and to address the issues raised in the ELC’s pending appeal of the challenge to the Abbott regulations;
   
• Propose revisions to the Abbott regulations sufficient to codify any modifications to the Abbott remedies approved by the Supreme Court immediately following such Court action; and
   
• Establish working groups on (1) the integration of special education and the needs of English language learners with Abbott and NCLB; (2) the roles of Boards of Education; and (3) secondary education as soon as possible.

As always, we stand ready to work closely and cooperatively with AICCC members in order to assure full and timely compliance with the Abbott rulings.