Does Administration’s New Accountability System Overstep Legal Bounds?

Christie and Cerf say they can close schools and withhold funds, some legal experts are not so sure

Credit: (Governor's Office/Tim Larsen)
Christie & Cerf
The Christie administration’s argument for its powers to unilaterally order the overhaul of lower-performing schools comes about 30 pages into its 365-page application for a waiver from the federal No Child Left Behind Act.

“If any such district refuses to implement a plan, either in whole or in part, the [administration] will make use of its far-reaching statutory and regulatory powers under state law to compel action,” reads the application.

And as the application lists, much of that power does exists under state law, as well as court precedent connected with the landmark Abbott v. Burke school equity case.

Under one statute, the state can direct expenditures so that they are spent “effectively and efficiently.” Another says it can “take any affirmative action as is necessary,” including restructuring programs and curriculum and the reassignment of staff.

But two days after the administration joined in 10 other states in filing for the federal waiver and the right to launch new accountability systems for public schools, the debate has surfaced as to just how far that language carries the state, legally and politically.

Gov. Chris Christie and acting education commissioner Chris Cerf on Wednesday outlined the new accountability system that would demand changes in more than 200 schools with either low achievement or wide achievement gaps. And they said they would consider withholding federal and state aid from schools that refuse to make ordered changes. Part of the plan submitted would include closing a low performing school outright, they said.

But some longtime legal observers — and oftentimes critics of the administration — said such actions are not quite so clearcut in the current law, and Christie and Cerf may be stretching the boundaries.

“Consistent with state law, they can go in and direct districts to take particular actions,” said David Sciarra, director of the Education Law Center that has spearheaded the Abbott litigation. “All of that, they clearly have the authority to do.

“But nothing that I am aware of allows them to close existing schools,” he said. “And they have no power to withhold funds. That’s even outside the scope of the federal guidelines. ”

Paul Tractenberg, a Rutgers Law School professor and noted expert on education law, said he also questioned whether the application’s reform plans ran counter to the state’s current school-monitoring system, the Quality Single Accountability Continuum (QSAC).

“As a constitutional matter, it is pretty clear the commissioner has whatever power he needs to ensure a thorough and efficient education,” he said. “But that’s different than saying if there is a legislation out there, he can just ignore it.”

In terms of significant alterations such as reassigning staff or directing changes in collective bargaining, Tractenberg said, “there are all kinds of big-time issues about their legal authority to do that.”

But Cerf yesterday stood by the application’s arguments and said that an administration review of the law and court precedent confirmed his wide powers, including the ability to close schools outright.

“That is based on a careful review of the law and confirmation of legal authorities that there is a precedence for this,” he said.

He said the same for the ability to withhold funds, or at least place strict conditions on their use. “It’s almost the same thing,” he said.

Cerf said that in some ways the new accountability system could run parallel to QSAC, which he pointed out is for district accountability, not school by school. “In what is a fundamental shift, this new system is not focused on districts but on individual schools,” he said.

But the commissioner stressed the state’s intention is not to order changes unilaterally, without a district’s input and cooperation.

“I don’t see this as an invitation to conflict,” he said. “I think a lot of them will be open to these changes.”

Still, the tension between state and local control in New Jersey is nothing new, and both the legal critics and some local school leaders yesterday were cautious about the extent of the state’s authority politically as well.

Elisabeth Ginsburg, president of the Glen Ridge Board of Education, has been an outspoken leader among suburban schools, and she said the new accountability system follows a trend in this administration.

“I don’t think there is any argument that we need reforms, but I’m not sure it is with a top-down approach that is without community support and accountability,” she said.

Citing new teacher evaluation systems that would be dictated by the state as well, she said: “We are moving to a situation where there is a lot of power in the hands of individuals over whom the local voters have little political control.”

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