AUGUST 8, 2005

THOUGHTS ON ABBOTT v. BURKE
This is the first of what I hope will be many musings from me about education law and policy. Appropriately enough, I start with some thoughts about Abbott v. Burke.

In New Jersey, Abbott and the educational reform efforts it has inspired are at the heart of any serious consideration of how our state should educate its young people. There are good reasons for that.

First, the genesis and basis of Abbott (and its predecessor case Robinson v. Cahill) are our state constitution and its education clause—the so-called T&E clause. The clause was added in 1875 after long debate and it has remained intact since then. It commits the state to provide all its children between the ages of five and 18 with a “thorough and efficient system of free public schools.”

In Abbott and Robinson, our state’s highest court has addressed, in increasingly great detail over the years, what that clause requires of the state, especially regarding our urban school districts. In effect, the court has ruled that “thorough and efficient” education requires that the state ensure to our neediest children what the plain meaning of those words seems to contemplate—the best and most appropriate education. In a national context where “education adequacy” and “sound basic education” are the dominant aspirations for poor children, New Jersey’s commitment is extraordinary. Moreover, the court has characterized the state’s obligation to provide that kind of education, the heart of Abbott, as “inviolate,” literally sacrosanct or sacred.

But you don’t have to rely just on the New Jersey Supreme Court as a measure of how important Abbott is. As we approached the new millennium, the state’s judges and lawyers were asked to name the most important state and federal court decisions of the 20th century. Abbott and Brown v. Board of Education were selected overwhelmingly. Several years later, the New York Times described Abbott as the most important education ruling since Brown.

Second, the Abbott mandates touch virtually every aspect of urban education; they resulted from an extraordinarily thorough inquiry into the research and expert opinion about those matters; and they constitute the most comprehensive and ambitious urban education reform program in the nation. Abbott’s coverage extends from early childhood education, to whole school reform of regular education programs, to supplemental services designed to meet special education needs of disadvantaged students, to construction of safe and educationally appropriate school facilities. As to all those elements, Abbott addresses how they should be funded--largely through state appropriations--and how the education system should be held accountable.

Third, the 31 special needs districts directly covered by Abbott—poor urban districts—have more than 300,000 K-12 students and about 60,000 three-and four-year olds eligible for full-day, high-quality early childhood education programs triggered by Abbott. That’s more than 25% of New Jersey’s students.

But Abbott’s reach is proving to be far broader. Sixteen poor rural districts sued to be given Abbott or Abbott-like educational and fiscal remedies, claiming that their needs were comparable to those of poor urban districts. Recently, the Legal Committee of the State Board of Education issued a recommended decision in that case, Bacon et al. v. NJ State Department of Education, in favor of those districts. Overturning a narrow decision of the Commissioner of Education, the Legal Committee ruled that all 16 districts had demonstrated their entitlement to substantial remedies and recommended that the Commissioner assess the needs in each district and propose a remedy to the State Board by December.

Far more expansively, though, the Legal Committee indicated that it was time for the state to overhaul its entire school funding and educational delivery system. In the Committee’s view, every New Jersey school district, not just the poorest, should receive from the state the fiscal and educational assistance it needs to succeed under an educationally-based unified system.

This decision, which is courageous and far-reaching, makes abundantly clear that Abbott is far more than a mandate for New Jersey to provide equal educational opportunity to students in its poor urban districts, essential and complex as that task is. Inexorably, Abbott is paving the way to reform of New Jersey’s entire public school system, and to improved education for all the state’s students.

This is no simple task. It is difficult, time-consuming and costly. We can’t do it on the cheap or on the quick. We can’t lose hope whenever progress doesn’t come as quickly and easily as we might like (and have no doubt—progress is occurring not only in equalizing funding, but also in improved student achievement, most dramatically thus far at the fourth grade level). We have to stay the course and not be distracted or seduced by the latest fads and quick fixes. Every new educational reform proposal has to be carefully evaluated in terms of its likely impact on achievement of Abbott’s reform mandates. Only in that way can we hope to fulfill the promise of our constitution to provide every student in New Jersey with a “thorough and efficient” education.

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