Abbott Is Back in Court and Beset By Questions

Latest filing prompts speculation about arguments, alliances and justices hearing the case, not to mention the eventual decision

It was always more about when Abbott v. Burke would be back before the state Supreme Court, not if.

With yesterday’s court filing to contest Gov. Chris Christie’s steep budget cuts to public schools, when has arrived. So let the questions begin — not just to how the court will decide, but also who’s on what side of the argument and which justices will even hear the case.

Delivered by courier to the court clerk in Trenton,
the 25-page complaint contends that the Christie administration – with the Legislature’s apparent acquiescence — has violated the court’s 2009 demand that the state fully fund the School Funding Reform Act of 2008.

In that unanimous decision, the justices said the new formula would be held constitutional as long as districts are provided the funds promised under the new formula.

The 2009 decision was monumental in itself for essentially ending the special treatment to the 31 urban districts that fell under the previous 20 years of Abbott rulings, and instead extending it to all districts with at-risk and special-needs students.

But then came more than $1 billion in proposed cuts for next year, close to 15 percent of all state aid to schools. Lawyers for the Abbott schoolchildren maintained in the new filing that the formula was under-funded not only for Abbott districts, but also for students in the nearly 600 districts across all of New Jersey.

“From our point of view, every district in the state has a direct and substantial impact in this application,” said David Sciarra, executive director of the Education Law Center (ELC) in Newark, the group that has led the Abbott litigation for three decades.

“This is an unprecedented and substantial cut, and the court’s language is crystal clear that they expected aid to be provided to all districts at formula levels,” Sciarra said.

High-Stakes Decision

There is little doubt to the high stakes for the districts and for the state as a whole. If the court is to rule in the plaintiffs’ favor and orders all or part of the cuts restored, it could save districts now facing hundreds, if not thousands, of potential layoffs.

At the same time, such an order could blow a big hole in a state budget already short on cash and reportedly close to agreement between Christie and leading Democrats – opening new debate on where the money would come from.

That was the primary focus of the reaction coming out of Christie’s office late yesterday.

“This year’s budget decisions reflect the simple fact that an endless pot of money does not exist, and we cannot continue government and school funding at unrestrained levels that, until now, have been dictated by court rulings and irresponsible spending and borrowing,” said Christie spokesman Michael Drewniak in a statement.

He reiterated the governor’s longstanding criticism of the court over its Abbott rulings in general.

“For too long, lawsuits and Supreme Court rulings have driven education funding in New Jersey without the intended effect of improving education for all of our students,” Drewniak said. He added that state budgeting and education policies “cannot continue to be dictated by court edicts that don’t adequately consider the realities of student performance and budgetary limitations.”

With the primary elections yesterday, there was only muted reaction out of the Statehouse and its key players. Republican legislators deferred to the governor, and Democratic leaders were enmeshed in budget talks, according to spokespeople.

Cautious Support From Advocates

Advocates for school districts were also somewhat circumspect. One suburban school organization, Dollar$ and Sense, participated in the 2009 case and backed the filing yesterday, but its leader conceded it may not have the money itself to file another amicus brief.

Like last time, several individual districts — most of them Abbott districts — are expected to file their own complaints alongside the ELC’s, but their lawyer would not yet comment on their cases.

The head of the state’s largest suburban group, the Garden State Coalition of Schools, hardly jumped to the ELC’s support. Lynne Strickland, the coalition’s director, questioned the timing of the filing when the budget is all but struck, and said she was unsure whether the filing would ultimately benefit her members.

A key point in the court case will hinge on whether the Supreme Court in 2009 was speaking to all school districts or just Abbott districts under its jurisdiction in the case, she said.

“The ELC comes across as representing everybody, but really they still only represent the Abbotts,” Strickland said. “It just makes me wonder if that’s more spin than fact.”

Still, Strickland said she also didn’t want to come across as fueling the suburban vs. urban divide that has grown wider as funding has gotten tighter.

“How can we not support more school funding?” she said. “But we also want the argument to be well reasoned, appropriate and winnable as possible.”

Here Come the Judges?

Much may end up resting on who even hears the case in the court’s wood-and-glass courtroom on the top floor of the Hughes Justice Center.

The seven-member court is already down one member after Christie refused to reappoint Justice John Wallace, a move that set off its own firestorm and the Democrats’ counter-move to prevent even confirmation hearings on his replacement.

The participation of Justice Helen Hoens is also now in question, as her husband, Robert Schwaneberg, is a health policy adviser in the governor’s office.

In the 2009 case, both Chief Justice Stuart Rabner and Justice Virginia Long also sat out, and there is no certainty whether they would again. Rabner was former Gov. Jon Corzine’s attorney general before taking the bench and was involved in the school-funding law then under review; Long recused herself for undisclosed reasons.

Even if just one of those justices recuses him- or herself this time, it leaves just five justices to hear the case, unless an alternate is named.

When asked yesterday about whom he thought he’d be arguing in front of, and about what the lineup might mean, Sciarra responded with an answer that could apply to many questions concerning the next version of Abbott v. Burke.

“I have no idea,” he said.