The case that just will not go away, Abbott v. Burke, now in its 21st installment with the New Jersey Supreme Court, has thrown another wrench into the political process today. While Governor Christie and some members of the legislature are working hard to balance a budget and prioritize the state’s finances to correct the fiscal failures of the last ten years, the Supreme Court seems to want to curtail that effort at every possible turn. Read the entire opinion, if you like that kind of torture, right here. I am warning you though, the post below contains a ton of spoilers!
Today, the court has determined that in addition to the school funding increases that Governor Christie put into his FY 2012 budget, the legislature now must allocate an additional $500 million to only the Abbott, or “special needs” Districts in New Jersey. This money can come from anywhere, the court has said that they will not direct the legislature on how to proceed, only that they must do so. However, the court is not being nearly as subtle as it claims.
During the oral arguments for Abbott XXI, members of the court were not shy about suggesting that a reinstated millionaires tax could pay for the Abbott Districts. A suggestion that steps far over the boundaries created by the separation of powers in New Jersey. After making its feelings on the millionaires tax known, the court then decided on a seemingly arbitrary number for hits judgment in this case. A number that is suspiciously close to the projections of revenue that would be taken in by a millionaires tax!
According to the court, Governor Christie reduced education funding by $1.7 billion in his FY
2011 budget. What the court always fails to mention is that prior to Christie taking office, Governor Corzine cut state funding to education to a level much lower than what Christie did in his first year, but then supplemented the funding with $2 billion in stimulus funds. Money New Jersey never really had in the first place! After the stimulus funds withered away, Christie was left with a $2 billion hole he needed to fill while keeping in mind the massive deficit being faced by the state. The FY 2011 budget was a compromise from all sides, a shared sacrifice, no department was spared and everyone was unhappy, but it got the job done, and I have yet to hear how it tarnished the education of our students for the rest of their lives.
This year the Governor increased education funding substantially, including to the Abbott Districts who still receive a far higher percentage of state aid than the rest. Granted, the court ruling that came down today was based on last year’s funding (or the current fiscal year budget), but for some reason I expect there to be a new lawsuit, which will be aptly named Abbott XXII, filed next year, and every single year until Chris Christie is no longer Governor of New Jersey. This is not about education, it is about politics, just as the court’s decision today, which is essentially a call for new taxation on the people of this state, was about politics.
The only thing in the Abbott line that is not about politics, that should actually be, is the interpretation of the Thorough and Efficient Clause of the New Jersey Constitution. Sitting in Article VIII, labeled as the taxing article of the Constitution (ie. NOT the Rights of the People article), the T&E Clause is the basis for Abbott litigation and has been since the clause was reinterpreted and given new meaning in Robinson v. Cahill in 1975. It states,
The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years
No where in this provision, located in the taxing article (an exclusively legislative duty) does it say that the court should enforce this provision. It says that the legislature shall do something, and therefore it shall do so at its discretion. In law, this is what is known as a political question that lacks justiciable standing. What does that mean? Put simply and practically, it means that this provision outlines what the legislature is to do, and then allows the legislature to do it and define its parameters as it sees fit.
Since the legislature determines what “thorough and efficient” means, that definition can be modified and changed through time and through legislatures. That means if the GOP wants to scale back education funding and call for greater efficiency (nothing like using the actual word from the constitution right?!) in education rather than just throwing money down the drain when it is not working, and the Democrats want to simply funnel all state aid to Abbott Districts and equalize education by driving the quality of other districts down to match them, then the people of New Jersey should get to decide at the ballot box which definition they want. It is a political question to be determined by the political process and cannot be challenged in court.
This may seem strange to some, besides the fact that is an elusive concept, it also is awkward that a constitutional mandate be unenforceable in court. However, in Pennsylvania, who has the exact same language in their constitution, that is exactly what they did! In Marrero v. Commonwealth in 1998, the PA Supreme Court determined that this issue was merely a political question and should be decided by the legislature in accordance with their power to tax and spend, a power the court does not possess.
But as we all know, things in New Jersey are much different. We have a system where money is continually pumped into failing districts at the expense of everyone else and no actual gains in educational outcomes are shown. A new paradigm is needed, but instead, this court, as shown by its 3-2 decision (which, by the way, would have come down differently if Ann Patterson were on the court already) that it would rather keep its eyes closed and ears covered than look at reality.
Governor Christie has made it clear that he is not going to simply lay down and take whatever punishment the court decided to hand down. Expect this fight, this rightfully political fight, to go on for a long, long time.
I think the court's decision is another abuse of its power.
However, I would adopt different tactics in the fight against Abbott. Let's challenge the eligibility of some of the districts for Abbott aid. Isn't it absurd that Hoboken, certainly one of the wealthier districts in NJ, still qualifies as an Abbott district? What about some of the other districts near NYC including Jersey City? At least some of those districts don't meet the criteria. So lets get at least some of the money by cutting funding for Hoboken and some of the districts that no longer quallify.