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BUDGET LANGUAGE UNDERMINES COURT ORDER ON ABBOTT REGULATIONS

COMMISSIONER CAN IMPOSE RULES AGAIN WITH NO ACCOUNTABILITY

The FY2007 State Budget Act, adopted by the Legislature and signed by Governor Corzine on July 8th, again permits the Education Commissioner to write the Abbott regulations for 2006-07 behind closed doors, and then adopt the rules without any accountability to urban education stakeholders, citizens and taxpayers.

Since 2002, in language tucked inside the massive State Budget Act, the Legislature has authorized the Commissioner to adopt rules governing the implementation and funding of the landmark Abbott v. Burke programs and reforms without having to follow procedures in the State Administrative Procedure Act (APA). The APA requires State agencies to give public notice of all proposed rules, and an opportunity to comment before they are adopted. The Budget Act language also allowed the Commissioner to change the rules every year, or during the year, something the APA prohibits.

Using this unprecedented power, the Commissioner has changed the Abbott rules every year for the last four years, and often changed the rules once or twice during the year. The lack of consistent rules, over a multi-year timeframe, has made it virtually impossible for urban educators to prepare plans and budgets for preschool and other essential programs, and to sustain school reform efforts over time. Urban parents and advocates complain that this "merry-go-round" of ever changing regulations is a serious impediment to improving academic achievement in New Jersey's high poverty, high minority urban school districts.

In proceedings before the NJ Supreme Court in May, ELC asked the Court to end this untenable practice. The Court, in its May 9th order, granted ELC's request and directed the Commissioner to adopt rules to "govern the submission of Abbott districts' budgets" under the APA, and to keep the rules in place for at least two years.

Despite this order, language was quietly slipped into the FY2007 Budget Act at the last minute to again allow the Commissioner to bypass the APA and the two-year requirement for rules governing the Abbott programs and reforms, even though those rules are essential to the preparation and submission of school and districts' budgets. Under the Act, the Commissioner need only comply with the APA in adopting rules on the technical details of budget filing, and not on substantive matters governing program planning, budgeting and implementation.

It's unclear who inserted the eleventh-hour language change. Acting Commissioner Lucille Davy and the Attorney General's Office were pushing hard for the change in behind-the-scenes deliberations on the State budget.

"Stable rules, developed with input from teachers, administrators and parents, are an essential element of any successful effort to improve student achievement," said ELC Executive Director David Sciarra. "We are asking Governor Corzine to do what's right educationally for urban school children and their parents by directing the Acting Commissioner and Attorney General to follow the APA in adopting all of the Abbott rules, and to keep those rules in effect for at least two years. We are ready to work with the Governor to get this done," Mr. Sciarra added.