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Op-Ed: State Board Plays Central Role in Restoring Local Control in Newark

Purported deal announced by Christie and Baraka has no real legal standing, raises questions about choice for next superintendent

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Paul Tractenberg

One of the hot education news items in New Jersey this past week, and a matter of great importance, was the purported deal between Gov. Chris Christie and Newark Mayor Ras Baraka over the return of the Newark public schools to local control.

It may well be a response both to an increasing drumbeat of pressure from the Newark community and its supporters around the state and nation, including large and well-publicized public demonstrations by thousands of Newark students, and to Christie’s now official presidential run.

There are many questions about the purpose, substance and enforceability of this purported deal.

A prominent one is why a governor committed to the return of local control would nominate his former commissioner of education, Chris Cerf, to replace Cerf’s appointee Cami Anderson as state superintendent of the Newark schools under a three-year contract.

Cerf has made very clear over the years that, when it counts, he has disdain for community input and collaboration. He is well-known for championing top-down “reform,” and belittling the rationality and knowledge of anyone who differs with his vision. To say the least, he seems a highly unlikely person to preside over reestablishing local control in Newark or anywhere else.

Cerf’s nomination is to be considered at this week’s State Board of Education meeting -- and it warrants very careful consideration. But the board also should consider the implications of the supposed deal between Christie and Baraka.

After all, the New Jersey law that governs state takeover of school districts and the reestablishment of local control makes it crystal clear that the commissioner and state board are the deciders, not the governor or a municipal mayor.

Since the governor, the commissioner and Cerf are all experienced lawyers, that should hardly come as a surprise to them.

Another important factor for the state board to keep in mind is New Jersey’s extraordinary and unique commitment to local control of education. Just think back to Gov. Jim McGreevey’s ill-fated effort to eliminate the state’s 25 non-operating school districts. State takeover and operation are dramatic departures from the dominant norm in our state.

Perhaps that is why the state takeover law, the Quality Single Accountability Continuum (QSAC), sets out three years of full state operation (or, as it is now called, “full state intervention”) as an important target date.

The key statutory section, NJSA 18A:7A-49, makes two explicit references to three years. Early in the provision, the following language appears:

“Based upon the annual report of progress, but not sooner than three years after the establishment of the school district under full State intervention , the commissioner may recommend that the State board place the school district under partial State intervention or elsewhere on the performance continuum . If the State board so determines, the school district shall be placed under partial State intervention or designated as transitioning to local control or placed elsewhere on the performance continuum effective on the July 1 next ensuing.”

At the end of this statutory section, there’s an even more telling reference to three years of full state operation as follows:

“If the commissioner cannot recommend that the school district under full State intervention be placed under partial State intervention within three years, then the commissioner shall provide a comprehensive report to the State board and to the Governor and the Legislature including a detailed analysis of the causes for the failure of the district to comply with the quality performance indicators and an assessment of the amount of time necessary for the continuation of the school district under full State intervention. On the basis of that report the State board shall determine whether to continue the school district under full State intervention or return the district to partial State intervention.”

I have searched in vain on the NJDOE website, on the Internet generally, and in my memory for evidence that the commissioner has filed the required comprehensive report as to why state operation should continue beyond three years in any of the three original state-operated districts.

Since Jersey City was taken over in 1989 (26 years ago), Paterson in 1991 (24 years ago), and Newark in 1995 (20 years ago), the commissioner has had ample time to submit such reports. Indeed, speaking of reports, QSAC requires a number in addition to the comprehensive report above, including:

The commissioner’s annual report to the Governor and the Legislature on the condition of education in New Jersey.

Although NJDOE does issue a number of statistical reports every year, including a report on school violence, vandalism and substance abuse required by another state law, and, beginning several years ago, a school performance report presumably designed to replace the school report cards, I have found no evidence of the commissioner’s annual report -- at least not since 1943.

The Governor’s biennial message to the Legislature on the progress of New Jersey schools in providing a thorough and efficient education.

I have found no record that such a biennial message has been delivered.

The commissioner is required annually to “formally report to the State board and to the Governor and the Legislature on the [state-operated] district’s progress.”

This is another required report that doesn’t seem to appear anywhere. In 2013, the Education Law Center formally complained to the state about this.

One might think that after a certain period of state operation -- perhaps three years as the governing statute indicates, but certainly after more than two decades -- the state has to accept ownership of each state-operated district and its failures.

Yet, against all logic and evidence, the state has steadfastly refused to do so. When it successfully fought off a lawsuit by Newark activists and community groups seeking the return of local control, the lead page of the state’s legal brief was a litany of Newark’s educational failures -- as if that was someone else’s fault. The tacit message was that the state has done such a bad job of state operation that the court had no alternative but to leave the state in charge.

This kind of argument totally subverts what was to have been the focus of state operation -- to build local capacity so that local control could be reestablished as soon as possible. Is there anyone so bold as to suggest a single significant way in which state operation of the Newark school district has sought to build local capacity? If anything, the better question is what will be left of the Newark school district to be returned to local control.

Before I return to the purported deal between the governor and the mayor, and the appointment of Cerf as part of that deal, indulge me in a brief reflection about why I think the state may have taken over the operation of four large urban school districts and adamantly refused to reestablish local control.

First, the takeovers of Jersey City, Paterson and Newark occurred between 1989 and 1995, crucial early years in the Abbott v. Burke litigation, when the state’s main defense against manifestly unequal funding of poor urban districts, just like those three, was that the problem was mismanagement and corruption, not inadequate funding.

Second, the takeovers of urban districts in overwhelmingly Democratic areas have been orchestrated by Republican governors and their chosen commissioners.

Third, more recently, the state has ferociously fought for continued control so that those districts could be laboratories—or, less charitably, cash cows—for its preferred education reform agenda and favored educational entrepreneurs.

Finally, and in a way most troublesome, students in state-operated districts look a lot different than students in most of the rest of the state. Based on the latest NJDOE enrollment data, the statewide racial and ethnic breakdown is 57.2 percent white and Asian (although a dwindling 47.7 percent are white) and 41.1 percent black and Hispanic; by contrast, Jersey City has 28.5 percent white and Asian and 69.8 percent black and Hispanic, Paterson has 7.6 percent white and Asian and 90.5 percent black and Hispanic; Newark has 9 percent white and Asian and 90.6 percent black and Hispanic; and Camden (recently taken over by the state) has 1.4 percent white and Asian and 98.5 percent black and Hispanic.

We are told (although it is hard to pin this down) that Jersey City has largely returned to local control. The fact that it was the first district taken over by the state might have something to do with that, but perhaps the fact that it now has more than three times as many white and Asian students as Newark and almost four times as many as Paterson might also be factor.

By the way, in the interests of full disclosure, my roots in Newark go as far back as I do, and I have long been an advocate for improvements in the Newark public schools. I am Newark born, bred and public school educated.

My commitment to school funding and related education reforms, more than 45 years old, was fueled by my experience at Weequahic High School as a top-ranked school in New Jersey and the nation.

I also have been deeply engaged in educational accountability, state takeover and reestablishment of local control for at least the past 15 years, partly through a large NJDOE contract to evaluate the state’s old takeover statute, the first in the nation, and to propose modifications, which resulted in QSAC.

Now back to the governor-mayor deal regarding the return of local control to Newark for a last few words. As a long-time contracts professor, it is clear that legal enforceability is at best a remote possibility for several reasons.

First, the parties lack authority to enter into such an agreement. The relevant state law makes absolutely clear that the governor’s only role as to reestablishment of local control is to receive a few reports from the commissioner and to deliver a biennial message to the Legislature. Since none of these seem to have happened, the governor’s role has effectively been nonexistent.

Since state law carefully distinguishes between school districts and municipalities, a mayor’s authority over education is extremely limited and certainly doesn’t extend to the return of local control. Of course, there’s a political as well as a legal dynamic, and it’s there where the governor and mayor have something to contribute.

But, as indicated above, legal authority rests with the commissioner and state board, and they need to exercise it diligently and carefully based on their best independent judgment.

Second, even if the governor and mayor had the requisite authority, the purported agreement isn’t nearly specific and detailed enough to be enforceable. As others have pointed out, the timeline is totally uncertain.

Will it be a year to local control (as Baraka suggested in an NJ Spotlight interview), a year and a half, two years, three years, or more? We simply don’t know, but I’m betting it will be long enough to get us past the presidential primaries if the governor has his way.

Incidentally, the governor-mayor deal may have some utility as a planning document, but it’s surely not something to take to the bank. Only an independent commissioner and state board, acting pursuant to the relevant state law, can actually assure that local control is reestablished in Newark.

Finally, here’s a last word about the appointment of Chris Cerf as state superintendent of the Newark schools. If the state board wants to send a message to the Newark community that its long-sought reestablishment of local control is on the way -- and soon -- it has to resist the temptation to confirm Cerf. That would send a much different message and likely engender chaos and confrontation, rather than cooperation and collaboration. Let’s hope a word to the wise is sufficient.

Paul Tractenberg is Board of Governors Distinguished Service Professor and Alfred C. Clapp Distinguished Public Service Professor at Rutgers School of Law-Newark, where he has been since 1970. In 1973, he founded, and for three years directed, the Education Law Center, which has represented the state’s 300,000 urban students in the landmark case of Abbott v. Burke. Professor Tractenberg established and still directs the Rutgers-Newark Institute on Education Law and Policy. He also has co-directed the Newark Schools Research Collaborative.

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