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IS ABBOTT GONE? NEW FORMULA ERODES EQUITY...................................... EDUCATION LAW CENTER NEWSLETTER RELEASE- BILL PLACING BURDEN OF PROOF ON DISTRICTS NOW LAW MAJOR LEGISLATIVE COUP FOR SPECIAL ED ADVOCATES

Feb 2008 - EDUCATION JUSTICE - (excerpt)

A publication of the Education Law Center

IS ABBOTT GONE? NEW FORMULA ERODES EQUITY

On the final day of New Jersey's lame duck session, January 7, 2008, state legislators barely passed Governor Corzine's School Funding Reform Act—a vote that could have a devastating impact on schoolchildren in the state's poorest urban districts, as well as in hundreds of other school districts throughout the state. Unless the new formula is rejected by the state Supreme Court or changed in the new legislature, the governor will succeed in leveling down one of the higher performing state school systems in the nation and one of the few that is making progress in narrowing achievement gaps. A flawed political process produced a law that eliminates crucial programs, and the state will ask the Court to sign off on a law that many claim is an unconstitutional.

A Flawed Process

Despite opposition by advocacy groups from all over the state and legislators on both sides of the aisle, the Governor got his plan through the legislative process in the final holiday-laden 16 days of the lame duck session.

Legislative consideration of the Governor's formula did not begin until December 13, 2007, when the Senate Budget and Education Committees held a joint public hearing. Although Commissioner of Education Lucille Davy presented some charts and figures outlining the impact of the legislation, no draft of the bill was actually made available publicly until December 20.

Subsequently, the Assembly Education and Appropriations Committee held only one public hearing on the bill on Thursday, December 27—two days after Christmas.

Finally, on January 7, the last full day of the session, the full Senate and Assembly had their only opportunity to debate the bill—along with a flurry of other bills calendared for that day. The Assembly passed the bill with the minimum required number of votes. Then, with the Senate tally at 20-19 (with 21 votes required to pass), voting on the bill was held open for three hours to allow for lobbying and closed-door deal making that eventually brought a switched vote from lame duck Senator Martha Bark and allowed the bill to pass.

Elimination of the Abbott Programs and Reforms

The most startling "reform" of the new law is the elimination of the Abbott designation for the state's 31 urban special needs districts—school districts educating over 300,000 students who are protected by a series of state Supreme Court orders in the Abbott v. Burke litigation. Not only did the Court direct essential funds to Abbott districts, it also put special responsibilities on the State for ensuring educational quality and requires these districts to provide specific programs that address the extraordinary needs of students and schools resulting from concentrated poverty and decades of neglect.

Attorney General Anne Milgram says the state will ask the Court to relieve it of these responsibilities.

Court-mandated programs to be eliminated or cut backs in the Abbott districts include:

The Secondary Education Initiative (scheduled for implementation in Fall 2008)
Art, music, and some special education programs
After-school and summer-school
Tutors and other literacy supports
School Leadership Councils, and parent engagement and parent liaisons

Advocates would lose the opportunity to secure services based on "demonstrated need." In fact, districts would no longer be required by statute to assess these needs and would no longer have the right to apply for funding to meet them, as provided for under Abbott.

Going to Court

The Governor has correctly said that any new school funding formula must comply with the constitutional mandates established by the state Supreme Court. On January 14, 2008, the day after Governor Corzine signed the funding formula legislation, Attorney General Anne Milgram advised the Supreme Court that the State would ask for relief from its remedial orders in Abbott, claiming that, in light of the new formula, "such remedies should not be necessary[.]"

On behalf of all 300,000 children in the Abbott districts, Education Law Center will oppose this motion and ask the Court to declare the new law unconstitutional. ELC will urge the Court to require an evidentiary hearing on the new law to demonstrate its harmful, inequitable, and unconstitutional impact, and will ask the Court to order the State to comply with the Court's Abbott orders until the Court has completed its review.

ELC claims that an evidentiary hearing would reveal many constitutional deficiencies in the new law, as outlined below.

Funding Formula Concerns

In addition to the loss of programs specifically designed to provide a "thorough and efficient education," as required by the state constitution, many other aspects of the formula render it inequitable and inadequate—for hundreds of districts, not just the Abbotts. Problems include:

The Base Per Pupil Cost: The formula initially sets a base per pupil cost almost 10% below the current average base cost throughout the state, and more than 13% below the average base cost in the state's wealthier 128 school districts. This would force staff and program cuts in many districts.
Low State Share of School Aid: In the absence of "adjustment aid," added this year "off formula" to soften the initial blows, the funding formula would reduce State aid to local schools by over $300 million. The State's overall share of state/local spending is 43%, well below the national average of 50%.
Funding for Pre-K Expansion: No funding is included in the law to accomplish its touted (and needed) expansion of the successful Abbott pre-K program to more districts and children.
Massive Cuts to Urban Districts: In the next three years, cuts to urban schools could top $1 billion. Twenty-four of thirty-one Abbott districts face cuts in next year's budget, and many would lose massive amounts of aid if the formula goes into full effect.
Accountability: State responsibility for school improvement would be limited to a new untested accountability system . Moreover, a recent management audit found that the NJ Department of Education lacked the capacity to carry out its responsibilities under this system.
Cost Study: The study that is the purported basis for the funding formula was developed by the NJDOE five years ago, and allegedly does not reflect reliable, current estimates of true costs.

Arbitrary "Census" Funding of Special Education Programs

For the first time in New Jersey, special education aid would be distributed on a "census" basis—districts would be eligible for special education aid for a set percentage of their school enrollment (census), regardless of how many students with disabilities they actually serve. Higher wealth districts are concerned that the new law also requires more local contributions, based on community property wealth and income.

This "one-size-fits-all" method is hard to reconcile with the law's stated goal of providing aid for school districts based on the characteristics of their student population.

Prepared: February 2, 2008

EDUCATION LAW CENTER NEWSLETTER RELEASE-

BILL PLACING BURDEN OF PROOF ON DISTRICTS NOW LAW

MAJOR LEGISLATIVE COUP FOR SPECIAL ED ADVOCATES

On January 13th Governor Corzine signed into law a bill for which disability and education advocates fought long and hard. Now a part of New Jersey’s Special Education Statute, the bill places the burdens of proof and production on school districts in special education due process hearings.

The Education Law Center (ELC), working together with the New Jersey Special Education Practitioners, and ultimately working together with a diverse group of advocates who formed the Coalition on Fairness in Special Education, conceived of this legislation in response to outrage at the effects of the United States Supreme Court decision that allowed the burden of proof to be placed on children with disabilities. ELC and its colleagues then drafted the bill’s ultimate language, testified at legislative hearings, educated the public about the bill and lobbied hard for its passage.

The new law will return the burden of proof to school districts which carried that burden since 1989 when the New Jersey Supreme Court decided Lascari v. Board of Education of Ramapo Indian Hills. The law will also ensure that the burden of production clearly rests on school districts. The burden of proof refers to the burden of showing that one’s evidence is more persuasive than the evidence presented by the other party. The burden of production is the obligation to be the first party to present evidence to the court at the outset of a hearing.

In 2006, despite seventeen successful years of school districts bearing the burden of proof, the Third Circuit Court of Appeals in L.E. v. Ramsey Bd. of Educ. determined that there was no state law requiring placement of the burden on districts. The L.E. court then interpreted the 2005 United States Supreme Court decision in Schaffer v. Weast to require placing the burden on the party – usually the children -- seeking a change in the status quo. This meant that for the past two years, more often than not, it was the children who were required to bear the burden of proof, and it made prevailing at hearings exceedingly difficult for the children, especially for those unable to afford attorneys.

Placing the burden on school districts simply requires school districts to show that they are providing a student with an appropriate education, consistent with federal and state special education law. It is easier for school districts to bear the burden than families, as the districts possess virtually all of the information regarding an educational placement. Returning the burden to school districts does not unduly burden districts or tax payers, as it ensures that tax dollars are being spent on effective programs and enhances district accountability.

The Senate and Assembly Education Committees voted unanimously in favor of the bill, and the full Senate and Assembly passed the bill by wide margins in the "lameduck" session, putting New Jersey at the forefront of national efforts to place the burden of proof on school districts. "When the community comes together to fight the good fight for what is needed for our children, good can come out of it, and it sure did this time," said ELC attorney Ruth Lowenkron, elated and relieved about the new burden of proof law.

Prepared: February 5, 2008