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Njspotlight.com ‘Abbott v. Burke Fact-Finding Hearings: It's All Over But the Final Report’…Legal joust between judge and state's lawyer closes latest chapter in debate over school funding
Northjersey.com ‘State argues education aid cuts are constitutional, have not undermined education’
The Record – column Charles Stile ‘Court not making it easy for Christie’
Star ledger column ‘Braun: N.J. will lose education funding cuts case because 'the law is the law'
Njspotlight.com ‘Abbott v. Burke Fact-Finding Hearings: It's All Over But the Final Report’…Legal joust between judge and state's lawyer closes latest chapter in debate over school funding
By John Mooney, March 3 in Education
The deputy attorney general was the last to speak after three weeks of hearings in the Abbott v. Burke school equity case, and she was barely into her closing statement when the judge chimed in with a question.
And then came another and another, as deputy Nancy Kaplen and state Superior Court Judge Peter Doyne went back and forth for close to an hour, until one wondered whether this was more closing dialogue than closing statement.
At one point, after one particularly animated exchange over the details of how to best teach world languages, Doyne paused to allow Kaplen her own breather.
"I’m appreciative of your help, Ms. Kaplen," he said with a smile, peaking over his reading glasses. "I don’t think it’s an easy task."
The purpose of the day was to give both Kaplen and the lead lawyer for the plaintiffs, David Sciarra of the Education Law Center, their final say in the latest challenge under the 35-year-old equity case before the state Supreme Court.
The law center has challenged the Christie administration's and the legislature's $1 billion in cuts to public schools this year as a violation of state's constitutional guarantee of a "thorough and efficient" education, as defined by the court itself in its latest Abbott ruling.
Budgetary Implications
It's a case fraught with budgetary and political implications for the state and its high-profile governor, and the high court remanded the challenge to Doyne to hold fact-finding hearings on the impact of the cuts and report back by the end of this month.
With nearly a dozen witnesses, the hearings in a Hackensack courtroom since the start of February have gone into numbing detail to the exact components of local budgets and programs, as well as the intricacies of the state’s School Funding Reforming Act that is at the center of the case.
But the high stakes -- and the drama behind them -- came back to light yesterday in the same courtroom, where closing statements and the exchanges with the judge provided an intriguing and at times entertaining close.
Sciarra went first, arguing that the state had not provided "a single witness" that provided evidence that schools could provide a thorough and efficient education through the cuts.
Doyne barely interrupted a word, even reinforcing Sciarra at one point. Kaplen was not so fortunate.
She opened with the state’s case that the present level of funding is enough, and that the $1 billion in cuts actually represented a “minimal amount, less than 5 percent.”
Doyne barely waited for her to finish the sentence and questioned whether the better figure is the $1.6 billion that the state’s own testimony deemed as the shortfall from the School Funding Reform Act (SFRA).
"That is what you determined was the difference," he said. "Isn’t that the more pertinent number?"
Kaplen cited another witness who spoke to New Jersey spending more on schools than any other state, and the room for cuts from supposed "excesses" in the budgets that will not effect student achievement.
"You called four educators who spoke to the effect of the cuts," Doyne came back, referring to local superintendents who detailed cuts of teachers and programs in their districts. "You want me to ignore the evidence?"
An Abbott Veteran
Kaplen, a veteran of the state’s attorney general’s office and the Abbott case as well, was adept in parrying Doyne’s queries. She herself retorted that there was little correlation between spending and achievement, a point raised by the state’s lead witness, Eric Hanushek of the Hoover Institute, a conservative think-tank at Stanford University.
But Doyne was ready, too, saying that he found Hanushek’s testimony "compelling" but pointing out there are no test scores yet to make such a judgment after the latest cuts.
"I'm not sure you get the benefit of the doubt, that without test scores you can draw X, Y or Z conclusion," he said.
It went that way for a while, a couple of times getting a little testy but largely good-natured argument between two practiced lawyers.
Much of the discussion -- at this point it was a discussion -- centered on another state's witness who showed a graph of achievement levels across the state where the poorest districts by far fared the worst. Doyne called it "troubling."
"I don’t see how you can avoid that conclusion," he said. "Or accept it."
But Kaplen said it hasn’t been lack of funding in these districts, some of them spending in excess of $25,000 per child. "I’m not avoiding it, but that has been true despite billions of dollars spent in those districts," she said.
In the end, Doyne appeared to tip his hand a little as to what he may say in his report back to the court.
Doyne has once before been in this role, when under the last Abbott challenge he issued a fact-finding report two years ago. His conclusion: the SFRA law, by and large, did provide the resources for at least a thorough education.
For example, Doyne didn’t sound sympathetic to one of the state’s central points, that federal stimulus dollars have helped offset the cuts.
"Even if I did give you the benefit of the doubt, which I don’t think I will be able to do," he told Kaplen, "will this money continue over time or be just one-time supplements?"
Still, at another point, Doyne indicated the state won him over with its argument that the distribution of the cuts at least sought to spare the state’s neediest urban districts, which have been at the center of the Abbott case.
"I do think that efforts were made to attempt to affect the Abbott districts in as minimal a way as possible," Doyne told Kaplen. "I don’t know if it gets you to where you want to be, but I will at least find that."
Northjersey.com ‘State argues education aid cuts are constitutional, have not undermined education’
Wednesday, March 2, 2011
BY LESLIE BRODY
The Record
STAFF WRITER
A judge frequently interrupted an assistant state attorney general in Hackensack on Wednesday as she said in her closing argument that last year’s cut in state aid to local school districts was constitutional and has had a minimal impact on education.
The assistant attorney general, Nancy Kaplen, reeled off evidence that pouring more money into schools doesn’t necessarily lead to better student performance. Bergen County Assignment Judge Peter E. Doyne asked her repeatedly, and skeptically, how her points helped him in his very narrow assignment as a state Supreme Court-appointed special master: to determine whether current funding levels allowed districts to provide a thorough education to all students.
Kaplen said there was no proof that the roughly $1 billion aid cut had hurt student achievement, noting that state test results won’t be available until May. Doyne responded that “that doesn’t help us” because his report is due to justices by March 31.
The back story
The state Supreme Court has heard arguments over fair funding for schools since the 1970s. The latest formula, which became law in 2008, ended the so-called Abbott program, which sent billions of dollars to the state’s 31 poorest districts. The new formula still helps those districts, but also aims to give more support to other districts with rising numbers of disadvantaged children. Critics said the Christie administration’s roughly $1 billion aid cut to schools last year violated the funding law, but the governor said the cuts were necessary due to the fiscal crisis.
He also questioned Kaplen’s assertion that many districts could have used their money more efficiently and tapped rainy-day savings if they truly needed more resources to deliver a comprehensive education.
“We ... hope our educators do not look only at the day in front of them but the year in front of them,” Doyne said. “To penalize a district or criticize a superintendent because he or she is concerned about the following year, when they also have a commitment to the core curriculum content standards seems to me, if not strident, to be unfortunate.”
Wednesday’s closing remarks followed two weeks of testimony in a legal challenge brought by the Education Law Center, which has spent decades fighting in court for fair funding for poor and minority children.
Attorneys for the state and the law center were in Doyne’s courtroom two years ago when he was appointed special master to review the state’s 2008 school funding formula. Back then, Doyne recommended that the justices uphold the formula, which aims to help districts with rising numbers of disadvantaged students get enough state aid to serve them. That formula established an “adequacy” level of funding that each district needs, considering enrollment of at-risk students, children with disabilities and students for whom English is not their native language.
Education Law Center attorney David Sciarra argued the 2010 aid cuts violated the justices’ mandate that the state fully fund the 2008 formula for three years and then review its effects. The Christie administration contends the cuts were necessary due to the recession. Both parties agreed that the state underfunded the formula by $1.6 billion in the current school year.
“The Supreme Court accepted that formula, accepted your honor’s ruling and directed that it be fully funded,” Sciarra said in his closing remarks. “The state may now have changed its mind about [the formula] but that ship has sailed.”
“That ship has sailed before this court,” Doyne said.
In the hearings, the state had the burden of proving that districts were able to provide a thorough education with current resources. A series of superintendents testified that the aid cuts made it very difficult to do so, and described a range of cuts in staffing — including guidance counselors and language teachers — and services, such as remedial programs.
Sciarra presented Education Department data showing that due to aid cuts, more districts this school year than last had below the level of funding dictated by the formula to be “adequate” to meet needs.
One of the state’s main witnesses, Eric Hanushek, an expert on school finance and teacher quality at Stanford University’s Hoover Institution, described national research showing that more spending does not necessarily lead to better student performance, but he acknowledged he had not studied New Jersey’s system in depth.
Doyne appeared to sympathize with the state on one point, saying it had attempted to make the cuts equitable and avoid inflicting disproportionate pain on the poorest districts — the former so-called Abbott districts.
“I think efforts were made,” Doyne said, “when effectuating the cuts, to attempt to affect the Abbott districts to the minimum extent possible.”
Last week, the Christie administration announced that it would provide an additional $250 million in school funding in his 2012 budget proposal. For school districts, that would mean an increase in state aid equal to 1 percent of their 2010 budgets.
E-mail: brody@northjersey.com
The Record ‘Court not making it easy for Christie’
Tuesday, February 15, 2011
Last updated: Tuesday February 15, 2011, 11:17 AM
By CHARLES STILE
COLUMNIST
Governor Christie and his 52 percent approval ratings have bowled over everybody in the political establishment, with one notable exception: the members of the New Jersey Supreme Court.
It's not from a lack of trying. Christie's unprecedented dumping of Associate Justice John Wallace last year, the court's only African-American member, plunged the court into a controversy, now in its ninth month.
That jarred their quiet, scholarly pursuit of footnotes and case law. It was as if a group of monks woke up one morning to find themselves on the set of "The Apprentice" with The Donald snarling in their faces and barking "You're fired." Except in the court's case, it's Christie snarling at them and hinting, at least to the untenured members, that "You could be fired just like John Wallace."
But unlike the legislators of both parties, lobbyists and the rest of the political establishment that have submitted to Christie's will, the top court's black-robed monks have shown a "Revenge of the Nerds" resiliency in recent weeks.
The court twice rejected the administration's attempts to strengthen its defense of its $825 million cuts in public school aid last year. The court placed the burden on the administration to prove New Jersey's 1.4 million public school children still receive a "thorough and efficient" education despite the cuts. It was an important, procedural victory for the Education Law Center, the Newark-based advocacy group which filed a legal challenge last year, calling the cuts unconstitutional.
And the court also turned down the administration's request to require Bergen County Assignment Judge Peter Doyne, a court-appointed fact
finder, to take into account the state's fiscal crisis. It also rebuffed the administration's request for more time. Doyne held his first hearing in Hackensack on Monday. His final report is due March 31.
The case is crucial because it could dramatically affect Christie's agenda. If the court rules against him, Christie may have to rewrite his budget and face increasing pressures to raise taxes on the wealthy. It would derail plans to transfer hundreds of millions of dollars in "vouchers" to private schools — a crucial piece of his education reforms.
Under normal circumstances, the court's recent procedural rebuffs would barely draw notice. But there is nothing normal about the current Supreme Court in the Christie era.
Wallace's firing was widely seen by Christie's critics as a brazen attempt to control the court. He all but announced last summer that he needed his appointees approved so that the court could uphold his agenda. The Christie campaign of 2009 was now the Christie administration of 2010, which wants to field a dependable Christie court lineup as soon as possible.
Senate President Stephen Sweeney, a Democrat, argued that Christie's refusal to reappoint was a slap in the face to the independence of the judiciary. It put every untenured member of the judiciary — including two on the Supreme Court — on notice that they should toe the Christie line if they knew what's good for them. So Sweeney refused to schedule a confirmation hearing for Anne M. Patterson of Mendham, Christie's nominee to replace Wallace.
Chief Justice Stuart Rabner then assigned Appellate Judge Edwin Stern to take Wallace's place until the impasse is resolved. This led Associate Justice Roberto Rivera-Soto to complain that Stern's call-up was unconstitutional. Rivera-Soto then announced that he would not vote while Stern sat at his side. Then Rivera-Soto announced he would not seek renomination this September. And then he announced he changed his mind and would vote, after all. The court needed a scorecard to track his movements.
All this turmoil has put the court on the hot seat, which was evident in January when the court heard oral arguments on the case. Members seemed nervous about the attention, eager to find some way to dump this case off the docket. They called in Doyne to wade through the thorny details, sift through each side's claims, give them some statistical cover.
So if the court squirmed under Christie's browbeating, why did it suddenly put more hurdles in front of the administration by rebuffing its requests?
Institutional pride may be at work. The court could be sending a signal that it's "not going over to roll over and play dead for the governor," said Paul Tractenberg, the founder of the Education Law Center and now a Rutgers University Law School professor.
Court members are also unlikely to be cowed by Christie's fiscal crisis claim. Crying that it's broke doesn't work because school funding is a constitutional right, compared, say, with welfare assistance and environmental protections. The Constitution makes it a top priority. And despite the crisis, the court knows that the administration had options to avoid the education cuts, but chose not to pursue them. Refusing to raise taxes on New Jersey's wealthiest residents comes to mind.
The court may also be reacting to the dramatic, 180-degree pivot Christie's cuts represent. Only a year earlier, it ratified a new funding formula that ended the court's oversight of low-income "Abbott" funding districts. Governor Corzine also committed to fully funding the new aid formula and having the court review its progress in three years. Now, a year later, the court is now being asked to simply "forget the full funding," Tractenberg said.
"If this was a different time, the court would have dismissed this with a one-sentence ruling," he said.
That's unlikely. Despite the procedural challenges, Robert Williams, the state constitutional law expert at Rutgers Law School-Camden, said the court is still giving Christie lawyers a chance to prove New Jersey students can still get a thorough and efficient education despite the cuts. Viewed this way, Williams says, the court is being deferential. "In a sense, this the kind of court Christie wants," he said.
E-mail: stile@northjersey.com
Star Ledger column - Braun: N.J. will lose education funding cuts case because 'the law is the law'
Published: Thursday, March 03, 2011, 7:00 AM Updated: Thursday, March 03, 2011, 8:03 AM
By Bob Braun/Star-Ledger Columnist
The chances are good the state will lose the school finance case — the case that ended Wednesday in Hackensack — but it won’t lose because of anything nefarious. Not because the judge is biased or the fix is in some other way. Far from it.
The state’s going to lose because it’s making political and ideological arguments in front of a judge, Peter Doyne, who is about as straight and as sharp as New Jersey judges get, and many of them are pretty sharp.
Over and again Wednesday, just as he has for the last month, Doyne asked questions like "How does that help me make my decision?" or "How does that help advance the state’s case?"
Nancy Kaplen, a deputy attorney general and veteran litigator for the state, had a hard time finding a way to help Doyne or help her own case. She tried — Kaplen argued the state’s case before the Supreme Court a few months ago — but the core of her problem is this:
Two years ago, the state took almost exactly the opposite position it’s taking now, and Kaplen was part of that team. Then, the state was run by Gov. Jon Corzine who thought he could make all the school aid troubles disappear by developing a formula that exactly matched money to the "content standards" children need to learn.
It was a "model of enormous complexity," Doyne reminded Kaplen on Wednesday. Five years in the making. Defended by real experts from across the country. Kaplen’s adversaries then were her adversaries now — the Education Law Center — but, back then, they were challenging the new law. Now, they’re defending its full implementation.
The difference, of course, is that Kaplen — and every other state employee — has a new boss, Gov. Chris Christie, and he doesn’t like the law and he doesn’t like what it costs. He wants to do things differently and, to a judge like Doyne, that’s all very well but Christie, like all lawyers, is supposed to know what the issues are before a judge — and the fact that Christie doesn’t like the law is not before the judge. The law is the law.
David Sciarra, arguing for the Education Law Center, argued the state wants to change the law — "But that ship has sailed," he said. "In this court it has?" Doyne said, but it really wasn’t a question.
Doyne heard Sciarra’s case two years ago on a mandate from the state Supreme Court. The Education Law Center didn’t like the new formula because it eliminated the special class of poor school systems known as "Abbott districts" from one of the earlier court cases, Abbott vs. Burke.
He upheld the formula but now Christie doesn’t want to fund it, and underfunded it by $1.6 billion. Now the state’s highest court wants him to answer this question: Is the new formula, without the right amount of money, still constitutional?
The state has introduced evidence it says proves money doesn’t matter. Wednesday, Kaplen argued about ineffective teachers and bad administrative choices and "obscene" collective bargaining agreements.
Doyne, a man with a great judicial temperament, still eviscerated the arguments with understated criticisms that they were "unfair" and "strident" and "unfortunate." He repeatedly asked Kaplen what her complaints about school districts had to do with the question before him — can the aims of the funding formula be accomplished with a nearly 10 percent cut?
The best Kaplen could say was that there was no direct correlation between money and performance, although she did concede there had to be some correlation because, without money, schools could not stay open.
Doyne reminded her that, when the state was making the opposite argument—that money did matter — he had said "money was not a talisman."
"One of the important factors in the acceptance of that formula was the acceptance of the proposition that we can quantify costs for performance. That is a foundational pillar of the SFRA" — the School Funding Reform Act. "Is the state now abandoning that thought?"
Kaplen could not say "yes," because, if she did, the state’s case was over. It was defending nothing when what it has to do is defend the formula with the cuts. Lawyers can’t always choose their cases or their clients — and Doyne often expressed sympathy for the deputy attorney general and wished her luck.
Doyne, who must file his recommendations by March 31, also returned repeatedly to what might have been the state’s worst mistake in its arguments — the presentation of charts purporting to show money didn’t make a difference. What Doyne said it really showed was that the poorest children in New Jersey were learning the least.
He got Kaplen to admit poverty drove achievement scores down. Doyne got her to admit that more money had to be spent on poor school districts. He all but shamed the state by noting the disparity in scores and asking, "Isn’t that troubling to the state?"
Kaplen did argue that, in making the $1.6 bllion in cuts, the state tried to avoid hurting the poorest districts the worst. Doyne conceded that, but then added a line that summed up how he has treated the state’s case for a month:
"I’m not sure that gets you where you need to be.
