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Christie's Supreme Court Nominee Reawakens Abbott v. Burke Issues

In his attempt to prevent the state Supreme Court from 'legislating from the bench', Governor Christie nominated Morris County lawyer Anne Patterson to the state’s highest court. If nothing else, his move puts Abbott v. Burke back in the spotlight.

As a candidate and now as governor, Chris Christie never hid his dislike of Abbott v. Burke, the state Supreme Court’s landmark school equity decision. Now he has taken his first shot at reshaping the court, when it is almost certain to be taking up at least the legacy of Abbott v. Burke again.

Christie this week nominated Morris County lawyer Anne Patterson to the state’s highest court, saying she would bring a more conservative philosophy to a court the governor said has been “legislating from the bench” for 30 years.

Christie's comments were a direct reference to the court’s activist record, led by the case dating back to the early 1970s that has become known as Abbott v. Burke. Over the course of that time, Abbott rulings have sent billions of additional dollars in state aid to urban school districts like Newark, Camden and Trenton.

In nearly all of its more than 20 Abbott decisions, the court forced either the governor or the legislature—or both—to provide the resources for a quarter-million poor school children to get the same education opportunities as their richer peers.

“From my perspective, the court over the course of last three decades has gotten out of control, and inappropriately invaded the executive legislative and executive constitutional functions,” Christie said this week.

“It’s not for the court to set some of the policies I believe it has set,” he said. “I talked all during the campaign about changing the court, and the only way to change the court is to change its members.”

Aiding At-Risk Students

There are still plenty of questions about Patterson’s prospects for confirmation. Senate President Stephen Sweeney has said he will not hold hearings on her nomination. He claimed Christie is seeking to “politicize” the court.

But in bringing the debate of Abbott v. Burke to the fore again, Christie also reawakens some critical education and legal points that are unlikely to go away.

The high court in many ways has already moved away from the strictures of Abbott when last year it endorsed former Gov. Jon Corzine’s and the Legislature’s School Funding Reform Act of 2008. Siding with the state for virtually the first time in a major Abbott ruling, the court backed a new formula that essentially redistributed the funding spent under Abbott and extended it to all school districts with sizable concentrations of at-risk or immigrant students.

The decision was seen as a victory for suburban districts—many of them Republican— that had long complained of being left out of the Abbott decisions. In all but a few places, the very term Abbott that had permeated the state’s education financing laws for decades was stricken from the statute.

Still, not all would agree that Abbott’s legacy died with that decision.

Cuts Across Districts

Republican legislators, and some Democrats, have chafed at the notion that former Abbott districts are still receiving the preponderance of state aid, even after the cuts that Christie has proposed statewide.

Christie’s cuts dig evenly across districts to limit the state aid reductions to no more than 5 percent of a district’s overall budget. For wealthier districts that don’t receive much aid, that’s virtually the entire package. But for former Abbott districts where most of their budget still comes from Trenton, it’s a much smaller share of their aid being cut.

“There is still a huge, disproportionate difference and a sensitivity that is obvious since the Abbotts were cut 5-6 percent and everyone else 30 to 100 percent,” said state Sen. Joseph Kyrillos (R-Monmouth). “There is a heavy spirit of Abbott that still exists.”

It surely is a topic soon to be broached again in court.

The Education Law Center, the Newark-based advocacy group that has led the Abbott v. Burke cases since their first filing, has all but assured the Christie administration that it would challenge the governor’s cuts in state aid as a violation of its 2009 ruling.

In that ruling, the ELC says the court clearly stated that the new formula was only constitutional if it was fully funded. The formula wasn’t even fully funded this year under Corzine’s last budget. The situation will be still-more severe next year, with Christie calling for $1.1 billion in state aid cuts statewide.

“It is abundantly clear that ...the Governor must either revise the budget to conform to the Supreme Court’s mandate in Abbott XX or seek appropriate relief from this mandate from the Court,” wrote David Sciarra, the ELC’s executive director, in an April 26 letter to state Attorney General Paula Dow.

“We know of no legal authority or precedent that permits the Executive Branch to ignore an explicit Court decree,” he wrote.

Still, even if the ELC does challenge the Christie administration, it’s hardly an open and shut case—with or without Patterson on the court.

Paul Tractenberg, the Rutgers law professor who founded the law center, said the he feels the current funding is “no doubt a violation” of the court’s 2009 decision. But that doesn’t mean the court will stand up against it.

“Given the state of the financial emergency and the fragile status of the court, it is uncertain that they would take any bold action,” said Tractenberg, who most recently served on the ELC’s board. “If I was a betting person, I couldn’t say the court would definitely call for full funding.”

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