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The New Jersey Supreme Court on May 25 clarified its 1998 ruling in Abbott v. Burke, saying the state must fully fund school construction plans in the poorest school districts. The ruling came in response to a last-minute intervention by Assembly Speaker Jack Collins, R-Salem, asking for clarification of Abbott v. Burke, 153 N.J. 480 (1998), known as Abbott V, which called for the state to fund 100 percent of “approved” construction costs. The Court’s per curiam decision made it clear that “approved costs” essentially meant all costs — not partial funding. “The state is required to fund all of the costs of necessary facilities remediation and construction in the Abbott districts,” the Court reiterated in the 5-0 opinion, with Justices Peter Verniero and Jaynee LaVecchia not participating. Both were officials in Governor Whitman’s administration when Abbott V was decided. The price tag for the construction project is expected to reach $15 billion in the 30 Abbott districts alone, and up to $30 billion for all remaining districts, says David Bacon, chief counsel to the speaker. “This is far and away the most massive undertaking by the state of New Jersey ever,” Bacon says. Bacon charges that the Court overstepped its constitutional authority by requiring the state to absorb the entire cost with no contribution from the districts receiving the aid, based on their abilities to pay. He says the New Jersey Supreme Court erred in interpreting the state constitution. Each Abbott district was required to conduct a needs assessments to identify what projects would be required to provide thorough and efficient education, then submit a five-year construction plan to the state for approval. All districts have done that, but the plans have not yet been approved. The Court affirmed that New Jersey should completely fund each district’s approved plan, and that its earlier language was never meant to imply partial funding. “We always thought that it was clear,” says David Sciarra, executive director of the Education Law Center, an education advocacy organization representing the class-action plaintiffs, including all children in the designated districts. As long as the construction plans addressed three key areas, safety improvements, reduction of classroom size and providing necessary education space for programs such as music and the arts, the plans would be approved and fully funded, Sciarra says. The Court stated in Abbott V that such “identified and needed” improvements should be fully funded, he adds. An amicus brief submitted by the League of Women Voters of New Jersey, calling for 100 percent state funding, asserts that the Assembly speaker was actually asking the Court to “reconsider” and not merely “clarify” its prior decision. “There is no need for clarification; the decision was clear,” says Douglas Eakeley, a partner with Roseland, N.J.’s Lowenstein Sandler, representing the league. Joseph Charles, a partner with Newark, N.J.’s Ashley & Charles, also filed an amicus curiae brief on behalf of the New Jersey Legislative Black and Latino Caucus, which opposes any partial funding scheme. Assistant Attorney General Nancy Kaplen also submitted a letter in response to the Assembly speaker’s intervention, saying that the defendants believe the Court’s language was clear and needed no clarification. However, Bacon maintains that the Court’s previous ruling needed clarification because it represents a novel approach to school funding. The typical funding formula for other types of aid requires the recipients to pay a share of the cost, depending on their abilities to contribute, he says. “How does the Court make a distinction between buildings and every other form of educational aid?” Bacon says. “Precedent in these cases has always allowed for a local share.” Collins charges that the very basis for the first Abbott decision was erroneous in linking educational achievement to money, and has opened the floodgates to a string of problematic rulings, such as the latest one. The Court violates the doctrine of separation of powers through its ruling by appropriating state money for the project before the Legislature has even put forth a plan, Collins says. But despite any contention that the Court erred, Bacon acknowledges that its determination is final and the state is compelled to follow it. “The debate about the Court’s prior decision is now over,” Sciarra says. “There is a spring 2000 date for startup of construction. That deadline is upon us now. It’s very important that the Legislature respond immediately. The time for debating is over, it’s really time for the work to be done.” The Court also emphasized the looming deadline in its recent ruling. However, none of the plans submitted by the districts have begun because the Legislature has not yet approved a bond issue to fund the work. The state Senate has already approved a bill, S-200, that would provide 100 percent funding for the pending projects, and the Assembly is expected to consider the proposed bill on June 1, according to Chuck Leitgeb, a spokesman for Collins. A similar bill, A-2041, which was originally crafted to provided only partial funding with local contributions from the Abbott districts, will be considered by the Assembly Appropriations Committee on Thursday, Bacon says. In light of the Court’s decision last week, that bill will have to be revised to cover the complete construction costs, he says. However, Collins is also contemplating several amendments, including establishing an annual spending cap and requiring biennial reviews of each district by the Department of Education to determine whether they are still eligible for the funding. Collins says he expects the Assembly to approve a funding bill by June 5. As part of the Court’s recent ruling, it also affirmed the Legislature’s authority to remove districts from the list of eligible communities if their status changes substantially. Collins’ intervention had raised the question of whether communities may be removed when they experience significant economic improvement so that they can no longer be considered a “poorer” community. Collins cited Hoboken, N.J., as an example of an Abbott district that was once a “poorer” community, but is now among the wealthiest municipalities in the state because of demographic changes. The districts are classified as poorer urban communities under Abbott if they have a combination of inadequate local property tax revenue and poor academic performance. The Court ruled that just as districts may be added to the list — such as Neptune and Plainfield, which were tacked on last year — they may be removed if their status changes. “When a district no longer possesses the requisite characteristic for Abbott district status … the Legislature, the State Board and the Commissioner may take appropriate action in respect of that district,” the Court stated. Although Bacon says the Court’s decision is “favorable” in allowing leeway for the Legislature to add or remove districts from the list, it would not relieve the overall burden of completely subsidizing all Abbott districts without requiring any financial contribution on their parts. “Once again, those [taxpayers] outside of the Abbott districts are going to be required to pay for the buildings in the Abbott districts,” Bacon says. “The real shame of it all is that there are so many municipalities outside of the Abbott districts that are so much poorer from an income and property tax standpoint.” Sciarra answers that the Legislature has never sought to compel Abbott districts to contribute to the construction costs. Such a requirement now, he says, would violate the Court’s clear mandate that the state provide complete funding.

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