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Supreme Court Remands Abbott v. Burke to Lower Court for Fact Finding

Justice's order appears to put burden of proof on Christie administration.

In the Assembly chamber of the Statehouse on Tuesday, justices of New Jersey’s Supreme Court listened as Gov. Chris Christie in his State of the State address made a not-so-subtle jab at the Abbott v. Burke school funding case.

“We must end the myth that more money equals better achievement,” Christie said. “It is a failed legal theory, and we can no longer waste our children’s time or the public’s money waiting for it to work.”

Two days later, the justices answered back: "Not so fast."

The court yesterday ordered the latest Abbott challenge to Christie’s $1.1 billion in school aid cuts be remanded to a lower court for fact-finding hearings. The justices are essentially asking for a determination as to whether the reductions in school aid left public schools in an unconstitutional state.

The remand to a "special master" was not surprising, since virtually every one of the justices had hinted as much in oral arguments a week ago. The same judge who held the post during the 2009 round of Abbott hearings will again fill the position.

The Burden of Proof

Perhaps more surprising, the court appeared to give a boost to the plaintiffs. In an order issued by Justice Virginia Long, the all-important burden of proof rests on the Christie administration. It is charged with showing that all schools -- rich and poor -- were continuing to provide "thorough and efficient education” in the face of widespread layoffs and program cuts.

"The state must bear the burden of demonstrating the present level of school funding... can provide for a thorough and efficient education as measured by the comprehensive core curriculum standards in districts of high, medium and low concentrations of disadvantaged students," read Long's order, in part.

The remand drew immediate reaction from both sides. The Education Law Center (ELC) -- the advocacy group that has led the Abbott litigation -- cited the statement as almost a victory in itself.

"The Supreme Court has again reaffirmed that the state's responsibility to provide a thorough and efficient education is fundamental and extends to all students," said David Sciarra, the ELC’s executive director and lead attorney.

Christie’s office said his cuts were necessary to close a deep budget gap and were made equitably across all districts. Spokesman Michael Drewniak reiterated the governor's State of the State address, calling the court’s edicts part of the "failed education and funding policies of the past.”

"The Governor pointed to the continued achievement gap between students in urban vs. suburban districts, despite the massive infusions of funding and per-pupil cost in some districts," said Drewniak.

Fact-Finding Hearings

In its order, the court asked that Superior Court Judge Peter Doyne of Bergen County hold the fact-finding hearings and report back by March 31, prime time for both the state’s budget deliberations and the local school budget decisions.

Even the choice of Doyne drew some conjecture as to its significance. Doyne is the judge who held the fact-finding hearings in 2009, leading up to the court’s last Abbott ruling, which is now the core of the current case.

Doyne's report, which some saw as sympathetic to the law center’s case, included a recommendation for the court to temporarily extend funding for supplemental programs such as extra counselors, tutors and after-school services.

In the end, the court did not follow Doyne’s advice on that point. Instead, it ruled in favor of a new school-funding formula proposed by then-Gov. Jon Corzine, which came without that supplemental money.

"Here is a guy [Doyne] who actually thought there should be more generous state funding," said Paul Tractenberg, the Rutgers University law professor who first brought the Abbott case as a founder of the Education Law Center. "And now he’s confronted with a 14 percent reduction."

Still, Doyne did not make many friends on the plaintiff's side of the courtroom, Tractenberg said. In the same report he was almost dismissive of some of the ELC's expert witnesses.

Either way, Doyne does brings the advantage of being well-versed in the case. And he wasted little time yesterday ordering the lawyers to his courtroom next Tuesday to lay out a schedule and other procedures for the upcoming hearings.

Known for being pleasant, collegial, and extremely hard working, Doyne closed his letter to the lawyers: "I shall look forward to working with you."

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