Lakewood Law
III. Criticism of the New Jersey Court
A. The Sovereignty of the Legislature
Not everyone agreed with New Jersey judicial supremacy and its adoption by the United States Supreme Court and other state courts. The principle that judges can routinely overrule acts of sovereign legislatures was not always accepted. According to the “weight of opinion in the early days of the republic . . . [a] duly elected legislature was presumed to act consistent with the constitution. . . . The legislative branch was supreme. Courts were restrained from limiting their power except for ‘a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication. . . .’” 1
While judicial review of has been universally accepted, review of intrinsically political decisions such as the amount of spending by a legislature, has not been accepted by every state. The Colorado Supreme Court disagreed with using the education clause of its constitution to force the legislature to spend more on education. The “political question doctrine compels us to reject the parents' invitation to have the trial court determine what level of school financing the General Assembly must provide.”2 So did the court in Nebraska. The “control of the purse strings of government is a legislative function.”3 Additionally, courts do not have the competence to determine if a program is educationally unsound. “Even if the Fourteenth Amendment required that expenditures be made only on the basis of pupils' educational needs, this controversy would be non-justiciable. . . . [T]here are no ‘discoverable and manageable standards’ by which a court can determine when the Constitution is satisfied and when it is violated.” 4
Nor are states liable under the federal constitution to provide a certain level of services or any at all. Rights in our federal system are negative. Government may not do certain forbidden acts, nor may it discriminate, but as for positive rights, the “Due Process Clause does not require the State to provide its citizens with particular protective services.” 5 The New Jersey court found this positive right in the “T & E” clause of the New Jersey Constitution. It used the T&E clause to order the spending of hundreds of millions of dollars on pre-school for three and four year olds when the T&E clause only allows the legislature to create 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.”6 Although thrilled with the result, even Professor “Trachtenberg thought the court had a tenuous legal basis for ordering half-day classes for poor three- and four-year olds.”7 The Court justified its order as having a constitutional underpinning, since by the time they enter school, the communication skills of Abbott kindergartners are far behind.
B. The Meaning of Thorough & Efficient
Before Robinson, New Jersey precedent did not require the legislature to prepare every child for economic opportunity, but for citizenship. Economic advantage, and how to go about it, was left was something additional dependent upon legislative largess. The constitutional mandate of a thorough and efficient education, shortly after its adoption, was decidedly to “impose on the legislature a duty of providing for a thorough and efficient system of free schools, capable of affording to every child such instruction as is necessary to fit it for the ordinary duties of citizenship. . . . But, beyond this constitutional obligation, there still exists the power of the legislature to provide, either directly or indirectly, in its discretion, for the further instruction of youth in such branches of learning as, though not essential, are yet conducive to the public service.”9
The neglect of other lower income working class districts has been criticized. John Dorsey, the Republican Senate minority leader, said that Abbott forced “working class people in middle class communities who drive around in Fords to buy Mercedes for people in the poorest cities because they don’t have cars.” 10 This is not a mere complaint about taxation, but equity. Complaints over taxation for Abbott will not be heard. A “district’s property values and average income are reasonably related to assessing the citizens’ ability to pay the district's local share. The differential treatment that has resulted appears to be an appropriate response to generate greater funds, from a not unlimited resource, for the needier school districts.”11 Claims can only be based on the needs of a district.
The premise that increasing spending on the best education programs increases achievement has little foundation in experience. Giving districts more options may not cause increased achievement. High test-scores are not necessarily caused by an enhanced educational program, rather, both a rich program and high scores are the result of the same cause, the wealth of a district. Wealthy parents tend to be both more educated and more supportive of education. Their children are high achievers even without the excess spending. Many lower income districts have not succeeded even with the excess spending and best efforts of educators as mandated by the New Jersey courts.
Judges, who are not educational professionals, have “determined that the evidence presented permits them to determine how to close the intractable achievement gap, how to educate disabled students with multiple problems, what minimum size classrooms should be, and whether native-language instruction will or will not facilitate English-language acquisition.” 12 It is enough that teachers already expect a different program every new school year, whether Leadership Matters, Small School Academies, Schools that Work, Instructional Frameworks, and the list goes on, but when a court determines the solutions to educational problems, its decision carries the force of law. The Abbott V Court jumped into the professional fray by embracing the Success for All program only to abandon it later after it failed miserably. A former assistant commissioner of education for Abbott implementation summed it up when he wrote, “Abbott offers a very powerful lesson: courts can and should influence issues of funding equity; they should absolutely avoid using their authority to mandate how education is practiced.”13