On the final day of New Jersey’s lame duck session, January 7, 2008, state legislators barely passed Governor Corzine’s School Funding Reform Act—a vote that could have a devastating impact on schoolchildren in the state’s poorest urban districts, as well as in hundreds of other school districts throughout the state. Unless the new formula is rejected by the state Supreme Court or changed in the new legislature, the governor will succeed in leveling down one of the higher performing state school systems in the nation and one of the few that is making progress in narrowing achievement gaps. A flawed political process produced a law that eliminates crucial programs, and the state will ask the Court to sign off on a law that many claim is an unconstitutional.

A Flawed Process

Despite opposition by advocacy groups from all over the state and legislators on both sides of the aisle, the Governor got his plan through the legislative process in the final holiday-laden 16 days of the lame duck session.

Legislative consideration of the Governor’s formula did not begin until December 13, 2007, when the Senate Budget and Education Committees held a joint public hearing. Although Commissioner of Education Lucille Davy presented some charts and figures outlining the impact of the legislation, no draft of the bill was actually made available publicly until December 20.

Subsequently, the Assembly Education and Appropriations Committee held only one public hearing on the bill on Thursday, December 27—two days after Christmas.

Finally, on January 7, the last full day of the session, the full Senate and Assembly had their only opportunity to debate the bill—along with a flurry of other bills calendared for that day. The Assembly passed the bill with the minimum required number of votes. Then, with the Senate tally at 20-19 (with 21 votes required to pass), voting on the bill was held open for three hours to allow for lobbying and closed-door deal making that eventually brought a switched vote from lame duck Senator Martha Bark and allowed the bill to pass.

Elimination of the Abbott Programs and Reforms

The most startling "reform" of the new law is the elimination of the Abbott designation for the state’s 31 urban special needs districts—school districts educating over 300,000 students who are protected by a series of state Supreme Court orders in the Abbott v. Burke litigation. Not only did the Court direct essential funds to Abbott districts, it also put special responsibilities on the State for ensuring educational quality and requires these districts to provide specific programs that address the extraordinary needs of students and schools resulting from concentrated poverty and decades of neglect.

Attorney General Anne Milgram says the state will ask the Court to relieve it of these responsibilities.

Court-mandated programs to be eliminated or cut backs in the Abbott districts include:

• The Secondary Education Initiative (scheduled for implementation in Fall 2008)
• Art, music, and some special education programs
• After-school and summer-school
• Tutors and other literacy supports
• School Leadership Councils, and parent engagement and parent liaisons

Advocates would lose the opportunity to secure services based on "demonstrated need." In fact, districts would no longer be required by statute to assess these needs and would no longer have the right to apply for funding to meet them, as provided for under Abbott.

Going to Court

The Governor has correctly said that any new school funding formula must comply with the constitutional mandates established by the state Supreme Court. On January 14, 2008, the day after Governor Corzine signed the funding formula legislation, Attorney General Anne Milgram advised the Supreme Court that the State would ask for relief from its remedial orders in Abbott, claiming that, in light of the new formula, "such remedies should not be necessary[.]"

On behalf of all 300,000 children in the Abbott districts, Education Law Center will oppose this motion and ask the Court to declare the new law unconstitutional. ELC will urge the Court to require an evidentiary hearing on the new law to demonstrate its harmful, inequitable, and unconstitutional impact, and will ask the Court to order the State to comply with the Court’s Abbott orders until the Court has completed its review.

ELC claims that an evidentiary hearing would reveal many constitutional deficiencies in the new law, as outlined below.

Funding Formula Concerns

In addition to the loss of programs specifically designed to provide a "thorough and efficient education," as required by the state constitution, many other aspects of the formula render it inequitable and inadequate—for hundreds of districts, not just the Abbotts. Problems include:

• The Base Per Pupil Cost: The formula initially sets a base per pupil cost almost 10% below the current average base cost throughout the state, and more than 13% below the average base cost in the state’s wealthier 128 school districts. This would force staff and program cuts in many districts.
• Low State Share of School Aid: In the absence of "adjustment aid," added this year "off formula" to soften the initial blows, the funding formula would reduce State aid to local schools by over $300 million. The State’s overall share of state/local spending is 43%, well below the national average of 50%.
• Funding for Pre-K Expansion: No funding is included in the law to accomplish its touted (and needed) expansion of the successful Abbott pre-K program to more districts and children.
• Massive Cuts to Urban Districts: In the next three years, cuts to urban schools could top $1 billion. Twenty-four of thirty-one Abbott districts face cuts in next year’s budget, and many would lose massive amounts of aid if the formula goes into full effect.
• Accountability: State responsibility for school improvement would be limited to a new untested accountability system . Moreover, a recent management audit found that the NJ Department of Education lacked the capacity to carry out its responsibilities under this system.
• Cost Study: The study that is the purported basis for the funding formula was developed by the NJDOE five years ago, and allegedly does not reflect reliable, current estimates of true costs.

Arbitrary "Census" Funding of Special Education Programs

For the first time in New Jersey, special education aid would be distributed on a "census" basis—districts would be eligible for special education aid for a set percentage of their school enrollment (census), regardless of how many students with disabilities they actually serve. Higher wealth districts are concerned that the new law also requires more local contributions, based on community property wealth and income.

This "one-size-fits-all" method is hard to reconcile with the law’s stated goal of providing aid for school districts based on the characteristics of their student population.

Prepared: February 2, 2008

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