Nearly three decades of legal battles for school equity sprang to life at a Public Education Institute forum on September 19. The PEI forum on the history and significance of the landmark Abbott rulings brought together four retired New Jersey Supreme Court Justices and Education Law Center founder Professor Paul Tractenberg before an engaged audience of educators, advocates, state and local officials. The verdict: Abbott was an historic step toward forward toward educational justice that must be sustained, but there is also major unfinished business that New Jersey must attend to.

The four Supreme Court Justices, who all participated in parts of the decades-long school funding case, included former Chief Justice Deborah Poritz and associate justices Gary Stein, James Coleman and Alan Handler. The justices described the history of the case, the record of unequal educational opportunity that was put before them, and the reasoning that ultimately led them to fashion a remedy that has made New Jersey a leader in providing funding equity for poor, urban schools.

Repeatedly, the Court was moved to extraordinary measures by the legislature’s failure to address dramatic inequalities in funding and educational opportunity between New Jersey’s urban and suburban students. As Justice Stein explained, "The Court exhibited enormous patience awaiting legislative action." Referring to the Robinson decision, a forerunner to the Abbott case in the 1970s, Stein noted "we waited three years before the Court took its most decisive action closing the schools in 1976. During the Abbott cases, the Court repeatedly called for legislative action. Only after the legislature showed it could not or would not comply, did the Court take decisive action ordering parity funding in 1997. And only then, did it begin to get into actual educational reforms, in recognition that the funding was only part of the picture."

Those elements remain the core of "the Abbott remedies": 1) Court-mandated "parity" in per pupil spending between the state’s poorest, urban districts and the wealthiest, most educationally successful suburban ones, 2) comprehensive school improvement reforms, including full day pre-school, early literacy, and other supplemental programs, and 3) safe and adequate educational facilities.

The forum examined the history of Abbott against the backdrop of current discussions on adopting a new school funding formula. A key issue will be whether any new state formula meets the Constitutional standards set in Abbott. Justice Handler traced the legal history of identifying a Constitutional right, establishing a record, determining that the right had been "undermined," and fashioning a remedy. Education is "a subject of such enormous importance and difficulty," Justice Handler said, that the "future bodes for continuing issues and developments." But he believed that Abbott had established the "fundamental outlines of what the Constitution requires."

Justice Stein added, "I certainly hope the funding formula is done in a careful, comprehensive way, that recognizes there are other needy districts too. That being said, one of the worst things would be for the State’s new funding formula to divert funds away from Abbott. It would be a shame. All of the children need adequate funding and support."

Chief Justice Poritz addressed the institutional and implementation challenges raised by the case. Abbott as a decision has to be implemented fully to be effective, she noted. "It has to be funded and the NJDOE has to have sufficient resources to implement their responsibilities. We have to the face the fact that once the decisions are out of the courts, they invariably get into the ‘rough and tumble of politics’ and different interest groups."

Justice Stein echoed the concerns about implementation, saying there was a "disconnect" between the large increase in funding for urban students ordered by the Abbott rulings and the lack of investment at the State level to build the Department of Education’s capacity to support local school and district improvement.

Professor Tractenberg, a leading advocate in the long struggle for funding equity in New Jersey, raised related issues of racial segregation, particularly in light of the recent Supreme Court decision narrowing the use of race-based initiatives to promote school integration. The issue was of special interest to Justice Coleman who told the audience that he had experienced the entire school funding battle in NJ through a "Plessy-Brown" frame because of his own upbringing in a segregated school system. He added, "It is the Court’s function to be final interpreter of the Constitution, to provide a better remedy when other branches fail. In New Jersey, the other branches simply did not offer a sufficient remedy." Justice Coleman expressed concern for the future of school integration efforts and raised the prospects of "regionalization" as one admittedly "controversial" approach.

The PEI program – sponsored by the New Jersey State Bar Foundation and the Institute for Education Law and Policy along with several co-sponsors including the Our Children/Our Schools Campaign – was both well-attended and well-received and provided history and context for the renewed funding debates now underway. A follow-up PEI forum is planned for December that will bring together several former New Jersey Governors to discuss their perspectives and approaches to school funding issues. Details and date still to be determined.

Prepared: October 1, 2007