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Abbott v. Burke Fact-Finding Hearings: It's All Over But the Final Report

Legal joust between judge and state's lawyer closes latest chapter in debate over school funding.

The deputy attorney general was the last to speak after three weeks of hearings in the Abbott v. Burke school equity case, and she was barely into her closing statement when the judge chimed in with a question.

And then came another and another, as deputy Nancy Kaplen and state Superior Court Judge Peter Doyne went back and forth for close to an hour, until one wondered whether this was more closing dialogue than closing statement.

At one point, after one particularly animated exchange over the details of how to best teach world languages, Doyne paused to allow Kaplen her own breather.

"I’m appreciative of your help, Ms. Kaplen," he said with a smile, peaking over his reading glasses. "I don’t think it’s an easy task."

The purpose of the day was to give both Kaplen and the lead lawyer for the plaintiffs, David Sciarra of the Education Law Center, their final say in the latest challenge under the 35-year-old equity case before the state Supreme Court.

The law center has challenged the Christie administration's and the legislature's $1 billion in cuts to public schools this year as a violation of state's constitutional guarantee of a "thorough and efficient" education, as defined by the court itself in its latest Abbott ruling.

Budgetary Implications

It's a case fraught with budgetary and political implications for the state and its high-profile governor, and the high court remanded the challenge to Doyne to hold fact-finding hearings on the impact of the cuts and report back by the end of this month.

With nearly a dozen witnesses, the hearings in a Hackensack courtroom since the start of February have gone into numbing detail to the exact components of local budgets and programs, as well as the intricacies of the state’s School Funding Reforming Act that is at the center of the case.

But the high stakes -- and the drama behind them -- came back to light yesterday in the same courtroom, where closing statements and the exchanges with the judge provided an intriguing and at times entertaining close.

Sciarra went first, arguing that the state had not provided "a single witness" that provided evidence that schools could provide a thorough and efficient education through the cuts.

Doyne barely interrupted a word, even reinforcing Sciarra at one point. Kaplen was not so fortunate.

She opened with the state’s case that the present level of funding is enough, and that the $1 billion in cuts actually represented a “minimal amount, less than 5 percent.”

Doyne barely waited for her to finish the sentence and questioned whether the better figure is the $1.6 billion that the state’s own testimony deemed as the shortfall from the School Funding Reform Act (SFRA).

"That is what you determined was the difference," he said. "Isn’t that the more pertinent number?"

Kaplen cited another witness who spoke to New Jersey spending more on schools than any other state, and the room for cuts from supposed "excesses" in the budgets that will not effect student achievement.

"You called four educators who spoke to the effect of the cuts," Doyne came back, referring to local superintendents who detailed cuts of teachers and programs in their districts. "You want me to ignore the evidence?"

An Abbott Veteran

Kaplen, a veteran of the state’s attorney general’s office and the Abbott case as well, was adept in parrying Doyne’s queries. She herself retorted that there was little correlation between spending and achievement, a point raised by the state’s lead witness, Eric Hanushek of the Hoover Institute, a conservative think-tank at Stanford University.

But Doyne was ready, too, saying that he found Hanushek’s testimony "compelling" but pointing out there are no test scores yet to make such a judgment after the latest cuts.

"I'm not sure you get the benefit of the doubt, that without test scores you can draw X, Y or Z conclusion," he said.

It went that way for a while, a couple of times getting a little testy but largely good-natured argument between two practiced lawyers.

Much of the discussion -- at this point it was a discussion -- centered on another state's witness who showed a graph of achievement levels across the state where the poorest districts by far fared the worst. Doyne called it "troubling."

"I don’t see how you can avoid that conclusion," he said. "Or accept it."

But Kaplen said it hasn’t been lack of funding in these districts, some of them spending in excess of $25,000 per child. "I’m not avoiding it, but that has been true despite billions of dollars spent in those districts," she said.

In the end, Doyne appeared to tip his hand a little as to what he may say in his report back to the court.

Doyne has once before been in this role, when under the last Abbott challenge he issued a fact-finding report two years ago. His conclusion: the SFRA law, by and large, did provide the resources for at least a thorough education.

For example, Doyne didn’t sound sympathetic to one of the state’s central points, that federal stimulus dollars have helped offset the cuts.

"Even if I did give you the benefit of the doubt, which I don’t think I will be able to do," he told Kaplen, "will this money continue over time or be just one-time supplements?"

Still, at another point, Doyne indicated the state won him over with its argument that the distribution of the cuts at least sought to spare the state’s neediest urban districts, which have been at the center of the Abbott case.

"I do think that efforts were made to attempt to affect the Abbott districts in as minimal a way as possible," Doyne told Kaplen. "I don’t know if it gets you to where you want to be, but I will at least find that."

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