The irony is hard to miss. Gov. Chris Christie has gone to the same state Supreme Court he has long decried as too activist to help him attain his last policy goals for public education in New Jersey.
And while the odds seem long, he may actually have a shot.
Last week, Christie had his attorney general file motions before New Jersey’s highest court to essentially overturn 30 years of Abbott v. Burke rulings — and toss in major changes to his own five-year-old teacher tenure law for good measure.
The announcement on Thursday came as a surprise to many, but really was just the latest in his long-running campaign to essentially rewrite the state’s landmark education funding history that has seen billions in additional dollars go to the state’s neediest districts.
Christie has long sought to remake the court to that end, engaging in epic political tugs of war for new appointments for the better part of five years.
On top of that, he recently proposed a radical change in the funding laws — his School Fairness Formula — that would essentially level the amount of state aid provided to every district, rich or poor.
His call for deep cuts in the funding of dozens of urban districts, however, had little chance of getting through the state Legislature, which is controlled by Democrats and beholden to Senate President Steve Sweeney, who has proposed his own more modest remedies for how the state pays for schools.
So now, Christie opened a new path and went back to the court that he has long criticized to help achieve his quest. And he threw in a proposal to rewrite the very tenure law he signed in 2012, one that strengthened districts’ abilities to remove substandard teachers.
Christie asked the court to go a step further and vanquish the state’s “last in, first out” law that protects veteran teachers, claiming it is the core impediment to urban schools’ improvement.
Pitching the cause last week, Christie said it is both about helping families in these cities and the taxpayers outside of them.
“For the first time, it’s your governor going to the court and saying enough is enough, on behalf of the people of this state we’re tired of paying for failure; we need this system to change,” Christie said.
“I'm not going to sit back and be a bystander in this,” he said. “I want urban education to get better in this state. I want those families to have an opportunity for their children to achieve their fullest potential. I also want your families to be able to continue to live here.”
Christie’s move clearly is a political gambit. This is a court that has upheld Abbott’s foundations for more than three decades, as recently as 2011 reinforcing the fundamental principles of the rulings and ordering Christie to restore $500 million to the 31 Abbott districts.
All while Christie has slammed the court as activist, the justices themselves said in their 2011 Abbott ruling that any policies concerning topics such as “last in, first out” must come from the State House and not the courthouse.
“While there may or may not be virtue in future educational policy reforms, the debate regarding how best to transform the educational system must be reserved for a different forum,” wrote Justice Jaynee LaVecchia. “The State’s presentation of such arguments in connection with the instant matter is simultaneously premature and laggard,” she wrote.
As much as precedent weighs heavily on any court, Christie has since appointed four new members to the seven-member court. With no Abbott cases before them until now, none of them have shown their cards either way.
The question remains: what will Chief Justice Stuart Rabner do? Rabner has abstained from all Abbott deliberations as the former counsel under former Gov. Jon Corzine. Is nearly a decade enough to stop abstaining?
Another question concerns whether advocates, who have been long-rumored as ready to file their own action over the deep under-funding of urban schools, will step in. David Sciarra, executive director of the Education Law Center who has led the case, said it remains a possibility. “We’re constantly looking at that,” he said last week.
Either way, the next moves will likely put the debate back in the courtroom. No schedule has been set; legal briefs are likely to be filed in the next two or three months.