Opinion: Abbott Plaintiffs Have Strong Case but Weak Chance

Gordon MacInnes | June 14, 2010 | Opinion
Welcome to 'Emerging' New Jersey, where consensus, centrist politics and common sense are only a memory

To no one’s surprise, the Education Law Center has petitioned the New Jersey Supreme Court to order the Governor and legislature to restore state aid to their clients in the districts covered by Abbott v. Burke, and to the other poor districts that benefit from the School Aid Finance Reform Act.

The Abbotts seem to have a strong case. And they’ll probably lose.

In 2009, when the Court agreed to end Abbott’s two-tiered funding in favor of SAFRA, the justices assumed full funding of the formula and mandated a review after three years to make certain that poor districts were being well served. State aid to the Abbotts is declining and preschool has not been expanded to other poor districts. But the problem for the plaintiffs is that Abbott is the perfect emblem of the passing of the Old New Jersey.

During the 1990’s and into the first millennial decade, New Jersey vaulted to national prominence as THE state for progressive school funding, for mandating high-quality preschool for even three-year-olds, and for financing the rebuilding of urban schools. All this was possible because of the conditions that prevailed in the Old New Jersey.

First, New Jersey was prosperous, always in the top five when family income and wealth were measured. It attracted jobs that demanded well-educated workers and took advantage of its proximity to New York and Philadelphia. The state’s suburbs provided well-financed public schools and other services for its affluent residents.

Second, New Jersey benefited from strong financial management. Through the 1980’s, it was one of only four or five states consistently graded AAA by the rating agencies. Despite major investments in higher education, transportation, and open spaces, its debt levels were modest and spending under control.

Third, New Jersey politics were dominated by a progressive, non-ideological center. There was a bipartisan consensus among governors and legislators that the state needed to improve its public schools, increase its investment in public colleges and universities, and attend to the needs of its poorer residents. Even Abbott’s generous funding mandates were initially accepted by all but the few right-wingers in the Legislature.

Fourth, the New Jersey Supreme Court was nationally recognized for its intellectual robustness, independence and activism. The Court regularly disagreed with federal court rulings and expanded the rights of the neglected and under-served. Abbott represented its most sweeping, prescriptive and financially consequential intervention.

That was then. The conditions prevailing in the Emerging New Jersey set the stage for a very different reception for the Abbott plaintiffs in particular, and for progressive, centrist policies in general.

To start, the Great Recession has ravaged New Jersey’s economy. While unemployment rate hovers at the national average, it is now clear that the current level of public services, particularly public employee pensions and benefits, is unsustainable. The failure of the state to continue its investments in higher education over the last 15 years or so is coming home to roost. New Jersey has been caught flat-footed in preparing its residents for growth areas of the globalizing economy: software, biogenetics, complex problem-solving.

Second, the state’s finances have been horribly mismanaged by governors and legislatures of both parties. The constitutional requirement that current expenditures and revenues be balanced has been ignored by every legislature and, egregiously so, by the Whitman and McGreevey administrations. The resulting bankruptcy endangers the quality and quantity of public services. There is little hope that New Jersey can return to a time of sensible public investment in its residents and infrastructure any time soon.

Third, the centrist, non-ideological politics that served the state well have been shattered by the advent of the Christie administration. To be fair, Gov. Christie must respond to a perfect storm of big overdue bills and sinking revenues. Commendably, his 2011 budget protects preschool for the Abbott districts, though little else. He has not shrunk from cutting popular programs or from battling powerful interests like the NJEA.

The problem is not his audacity, but his methods and his ideology. The ideology is best illustrated by his cut of $900 million in state aid for the 1.3 million public school students while advocating a brand-new program of $360 million to subsidize tuition payments for a few thousand students attending private schools. His verbal assault on his own education commissioner for the compromise struck with the NJEA is an example of the Governor’s blunt arrogance.

Fourth, Gov. Christie has greatly diminished the stature and independence of the Supreme Court. His remarks accompanying the denial of reappointment of Justice John Wallace constitute a direct threat to the Court’s standing. Citing no reason for not re-appointing Justice Wallace, Gov. Christie’s attack on “judicial activism” sends a clear signal (to nontenured justices especially) that the road to re-appointment does not include restoration of Abbott in any form.

Even in Old New Jersey, the Abbott plaintiffs would have faced a court impatient to lighten its hand over school finance. In Emerging New Jersey, they’ll be lucky to get a hearing.

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