New Jersey Supreme Court & Judicial Activism: Education One of the greatest examples of the New Jersey Supreme

Court legislating from the bench is the Court’s unconstitutional mandates related to education funding. The Court, beginning with Robinson v. Cahill I (1973), has slowly but surely taken education out of the control of taxpayers and mandated an endless amount of funding toward poorer urban school districts. Article VIII, Section IV, paragraph 1 of the NJ Constitution states “the Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” The Court has ruled that this section, added in 1875, places the responsibility of education on the State. The State may delegate its authority to municipalities, but the State is ultimately required to make sure that the constitutional mandate is achieved in each school district. Robinson I declared that the State’s educational funding system was unconstitutional because it relied too heavily on local property taxes, which created disparities in per-pupil spending. Since the Court admitted that “there is no helpful history spelling out the impact of this amendment [the thorough and efficient clause],” the Court felt compelled to make history itself. It declared that the amendment required the State provide for an “equal educational opportunity” and put the state on the hook for “capital expenditures without which the required educational opportunity could not be provided.” The first declaration led to the “parity funding” doctrine espoused in the Abbott decisions and the second opened the door for the Court requiring the State to fully fund construction projects in the poorer urban districts, herein referred to as special needs districts (SNDs) or Abbott districts. The Court said it ruled on per-pupil funding disparity because there was “no other reliable criterion” to measure achievement of the constitutional standard of a “thorough and efficient education.” The State had not yet laid out substantive educational standards to define a “thorough and efficient education.” The failure to provide clarity to this statement has ensued in an endless stream of litigation and great cost to taxpayers. In Robinson IV (1975), the Court violated the separation of powers guaranteed in Article III, paragraph 1 of the NJ Constitution, by usurping the power of appropriations, which is reserved for the Legislature. Unsatisfied with the continuing disparity of funding, the Court ordered the reallocation of funds to attain greater equalization. The Court also violated Article VIII, Section II, paragraph 2 of the Constitution, which states “[n]o money shall be drawn from the State treasury but for appropriations made by law.” Through forced reallocation of funds, the Court assumed unchecked power, which was the great fear of the Framers who designed our system of government. Justice Clifford added in the dissent that “[a]s this Court more recently observed: The doctrine of separation of powers must be viewed not as an end in itself, but as a general principle intended to be applied so as to maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of Unchecked power in the hands of any one branch.”

The Court did not leave compliance with the constitutional order to the Legislature; it made the appropriation itself in the name of protecting constitutional rights. When we look at the Constitution, it is clear that the Court did not protect a right; rather it created one. The State finally legislatively defined the components of a “thorough and efficient education” in 1975. After the Court found the law “facially constitutional” in Robinson V (1976), the Court declared it unconstitutional in practice applied to the districts of Camden, East Orange, Irvington, and Jersey City in Abbott v. Burke II (1990). Despite that the 1975 law granted the Commissioner of Education and the State Board of Education almost unlimited power in taking corrective action to improve failing school districts, the Court ordered that the State must ensure that the poor urban school districts spend approximately as much per pupil as the wealthy suburban districts, while providing for the “special needs” of children in the poor urban districts. Suburban taxpayers were responsible for paying for the increased spending because the Court ruled that the poor urban districts were “municipally overburdened” by low property values and high need for government services (not just education). The Court made the fiscal determination that these districts were unable to raise taxes any higher and that the State was required to fill the gap. The Court has shielded the governments, school boards, school administrators, and teachers’ unions of these districts from reforming the way they provide services by passing the cost of school operations to suburban taxpayers. Abbott II demonstrates the Court’s disregard for separation of powers and its desire to legislate from the bench. As such, the Court states that the education clause mandates that the State provide a system of education where children from the wealthy suburban districts and the poor urban districts are able to compete in the “same society.” The Court cited Robinson I, which cited Landis v. Ashworth (1895), which said the intent of the education clause “was to impose on the legislature a duty of providing for a thorough and efficient system of free schools, capable of affording to every child such instruction as is necessary to fit it for the ordinary duties of citizenship” (emphasis added). The Court, in the Robinson and Abbott decisions, construed the Constitution to require equal results. The Court has masked this desire under the cloak of “equal educational opportunity,” which has been stretched to require mandatory construction, preschool, and equalized per-pupil spending in the Abbott districts. The Court deemed it the State’s responsibility to assure that children in the soon-to-beAbbott districts “begin at the same starting line” as the children in wealthy suburban districts, something that (1) is neither mentioned in nor required by the Constitution and (2) cannot be achieved solely through educational reform. The Court granted the latter point yet ruled that the State was constitutionally mandated to pour more money into the poor urban districts. This point of the “same starting line” led to the court-ordered funding of pre-school for three and four year olds, despite the fact that the Education Clause explicitly states that the State is responsible for the education of children “between the ages of five and eighteen years.” This decision and mandate of funding showcases the Court’s unending desire to usurp the power of the other

branches and legislate from the bench. It is important to note that the Court came to its decision in Abbott II by comparing the very rich to the very poor. The overwhelming majority of districts in the middle were ignored because they were not represented before the Court and the record on those districts was incomplete. So even though these districts may not have been providing a “thorough and efficient” education as defined by the Court, they were not rewarded with protected class status. They were simply part of the “solution” of having to pay for the poorer urban districts. In 1990, the Legislature passed the Quality Education Act in anticipation of the Court’s decision in Abbott II and passed the Comprehensive Education Improvement and Financing Act (CEIFA) in 1996. When reviewing these democratically-passed laws, the Court found the funding provisions of both Acts unconstitutional as applied to the Abbott districts in Abbott III (1994) and Abbott IV (1997) because neither based its funding formulas on the needs of the children in the Abbott districts. Once again by ruling in such a manner, the Court failed to show the proper deference to the legislative branch, which is responsible for complying with the Education Clause, and the expertise of the Department of Education in declaring the funding schemes unconstitutional. The CEIFA promulgated a list of educational standards, the Core Curriculum Content Standards, which were found constitutional. The law determined that a constitutionally sufficient level of education could be provided at a fixed per-pupil cost (T & E amount) that was subject to biennial reevaluation. The poorer districts were required to pay a smaller portion of the T & E amount than other districts with the State making up the difference. The formula was computed from a hypothetical model district, which the Court ruled was not representative of the SNDs, and therefore was unconstitutional. In an attempt to comply with the Court’s previous orders, CEIFA funded supplemental programs to address the special needs of the children in the Abbott districts. These too were unconstitutional because they weren’t tailored to the specific needs of the children of the SNDs. The Court demanded studies of the actual needs of the SNDs despite not showing evidence that the amounts prescribed by CEIFA were not sufficient to provide a “thorough and efficient” education. Because the Court deemed them a protected class, the Special Needs Districts (SNDs) were constitutionally entitled to special treatment. Indeed the Court affirmed in Abbott IV that the SNDs are entitled to more resources than the suburban districts. As a remedy, the Court ordered parity funding between the wealthy suburban and the SNDs, a requirement that would last until 2009. Until per-pupil spending in the SNDs roughly equaled spending in the wealthy suburban districts, “the disadvantaged children in the SNDs [would not be] accorded the same means for seizing the educational opportunity as their suburban peers” (emphasis added). Note that the Court here directly contradicts the Landis and Robinson I decisions, which both stated that the Constitution does not require “the

legislature to provide the same means of instruction for every child in the state.” Justice Garibaldi answered the majority opinion’s focus on educational equality in her dissenting opinion: “The drafters of the Constitution could have provided that each child receive an ‘equal’ education, but they did not, and the majority should not rewrite the Constitution.” Still unsatisfied, the Court ordered the Commissioner of Education to fully fund half day pre-school for all three- and four-year olds in the Abbott districts, expanding the constitutional mandate further than the explicitly stated five to eighteen years of age (Abbott V (1998)). It made the State, i.e. the taxpayers, responsible for correcting for all the problems of these districts through school funding. “It is the State…that bears the responsibility for ensuring that the social service component of a thorough and efficient education is provided to Abbott students,” the majority wrote in Abbott V. This meant that the taxpayers must pay for everything that the community itself should be providing to school-age children: even if that meant ignoring the clear and unambiguous age-specific language in the Constitution. In effect the Court’s ruling made anything that might negatively affect the educational experience of the child, whether inside or outside of the classroom, a financial responsibility of the State. The Court ordered the Commissioner to set up bureaucracies to implement these mandates and make sure the money was being spent effectively and efficiently, the latter of which has been a complete failure to any objective observer. Abbott V also mandated the State to assure that adequate educational facilities be provided for in the Abbott districts. This mandate, although not enumerated in the Constitution, was reaffirmed in Abbott VII (2000), where the Court wrote “[t]he State is required to fund all of the costs of necessary facilities remediation and construction in the Abbott districts.” The Abbott districts had a “right” to request additional funds after they spent what they had or just simply wanted more, and the State was obligated to provide the funds if the districts could demonstrate a “need.” Effectively, the Abbotts were entitled to a bottomless pit of taxpayer dollars as long as they could show the bureaucrats in Trenton that the money was necessary to provide a “thorough and efficient education,” a concept that has been stretched by the Court to require almost anything without any accountability to the governed. After Abbott VII, more taxpayer money was wasted pouring money into the Abbott districts to comply with the Court’s orders. In 2003, Governor McGreevey created the Schools Construction Corp. to fund the now “constitutionally required” school facility repairs and construction. In 2008, the Legislature passed and Governor Corzine signed the School Funding Reform Act (SFRA), which created a new state school funding formula that was intended to provide funding for “at-risk” children across the State, not just the Abbott districts. It used a weighted formula concocted by “educational experts” to provide additional funding to districts with certain concentrations of “at-risk” children. Like CEIFA, SFRA used a model school district to come up with its funding formula, but “used [a] large district model because larger districts generally are

more efficient and that, therefore, the use of a larger model would provide incentive for the creation of larger, more efficient districts” (Abbott XIX). This is in line with the liberal agenda of consolidating services into larger entities, which threaten home rule, have larger overhead, and have a bigger, more bloated bureaucracy than smaller districts. The SFRA is “wealth equalizing,” as it determines each district’s “fair share” amount that it must contribute to its educational cost. Through “Equalization Aid,” the State fills the gap if a district’s “fair share” amount is less than its “Adequacy Budget,” another creation of the “educational experts” in Trenton. SFRA also expands the State’s obligation to pre-school funding, requiring that all “at-risk” children throughout the State be provided with a “high quality” pre-school education. The State based the per-pupil cost of the pre-school programs off of the actual cost of the Abbott pre-school programs that were previously ordered by the Court, a formula which basically guarantees the wasting of taxpayer dollars. The Court declared SFRA was constitutional in Abbott XX (2009). The State was thus free from the Court’s previous remedial orders requiring parity and supplemental funding to the Abbott districts and was permitted to implement SFRA. It is important to note that when determining the SFRA, the Court did not presume the constitutionality of the statute. The burden of proof was on the State to show the Court that the law was constitutional, not the plaintiffs to prove that the law was unconstitutional. Normally the Court presumes a challenged law to be constitutional and only strikes it down if plaintiffs prove beyond a reasonable doubt that the law is unconstitutional. Because of the length and amount of Abbott litigation in which the Court issued many remedial orders to address constitutional deprivations, the Court unilaterally shifted the burden of proof. After Governor Christie and the Legislature failed to fully fund SFRA in the FY 2011 budget, litigation ensued. Justice LaVecchia, who wrote the majority opinion in Abbott XX, declared on May 24, 2011 that the Abbott schoolchildren’s right to a thorough and efficient education was violated and the State needed to provide $500 million more in funding to remedy the situation. The Court only addressed the claims of the Abbott children because they have been deemed a constitutionally protected class by the Court. According to the Court, the State is not constitutionally required to fully fund SFRA for non-Abbott districts. Only the Abbott districts have an absolute right to taxpayer money. In 2011, Justice LaVecchia, who was originally appointed by Governor Whitman, apparently saw words that do not exist in her 2009 Abbott XX opinion. The major theme of her Abbott XXI opinion was that the Court constitutionally mandated the legislative and executive branches to fully fund SFRA and complete the scheduled reevaluation of the program in three years. At the very least she cherry-picked that order from her Abbott XX opinion. Several times in her Abbott XXI opinion, LaVecchia mentioned statements from Attorney General Milgram from the Abbott XX litigation in which Milgram recommended that the Court require full funding of SFRA. Clearly Milgram was more forceful in requiring full funding than the Court was.

Unfortunately for LaVecchia, constitutional mandates must emanate clearly from the Court, not the Attorney General. Therefore, she had to change history in order to justify her ruling. As Justice Hoens said in her Abbott XXI dissenting opinion of the Court’s decision in Abbott XX, “Our decision…included references to anticipated future funding of that formula, but nothing whatsoever in Abbott XX elevated that language to the force of a constitutional mandate.” In fact, LaVecchia said this in Abbott XX: “The political branches of government, however, are entitled to take reasoned steps…to address the pressing social, economic, and educational challenges confronting our state. They should not be locked in a constitutional straitjacket.” LaVecchia, in Abbott XXI, directly contradicted herself and locked the legislative and executive branches, supposedly co-equal, in a constitutional straitjacket. In the state’s fiscal crisis, judicial deference is warranted when the legislative and executive branches diligently attempt to prevent the State from going bankrupt and comply with the explicit constitutional mandate of a balanced budget. In Abbott XXI, Hoens mentioned in her dissent that the State must willingly defy or refuse to comply with a Court order although it is able to in order to constitute a violation. Not only did the State do neither of those two things, the Court did not issue a “specific and unequivocal order” to fully fund SFRA. As it did in Robinson IV, the Court once again usurped the appropriations power of the Legislature by forcing reallocation of funds. It ordered full funding of SFRA in FY 2012 with correction for the funds not provided to the Abbott districts in FY 2011. This is another example of the Supreme Court engaged in judicial activism, supplanting its legislative agenda for that which is delegated to the legislative branch. It is unconstitutional and it is just another example of Judges Gone Wild.


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