Lakewood Law
IV. The Politics of New Jersey Schools
A. Multiplicity of Inefficiencies
New Jersey has even more school districts than municipalities, and more school board members, about 4,800, than elected local officials, about 3,400. 1 The large number of school districts reflects the state tradition of home rule with its small political fiefdoms. Just as each of the 566 towns hires its own police chief and other administrators, each district has to hire a superintendent. Repetition of services is not the only excess in the multiplicity of municipalities and districts, but so is “the state’s comparatively high cost of pupil transportation. Significant cost savings from economies of scale are not realized simply because New Jersey’s pupil transportation program is fragmented among too many districts with too little inter-district collaboration.”2 Students living on the borders of districts often can be transported to a school in another district more efficiently than to the school in the district. Each district has to run routes in its own small area. The “state wide average school district area is 18.2 square miles.”3 The perennial calls for consolidation will continue.
B. The Teachers
New Jersey established the tenure of teachers in 1909 “to destroy as far as possible the spoil’s system.”4 Tenure has brought stability to schools by securing the positions of veteran teachers, who often become a part of the culture and the traditions of the institution. This naturally gives them better rapport with students. Stability is important to children, especially in the lower income district where children have little other stability in their lives. Tenure also increases salary expenses, as pay increases with years of service.
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.” One of the most powerful interest groups in the state is the New Jersey Education Association (NJEA), the teachers’ union. The NJEA traditionally negotiated over educational matters such as curriculum and class size until the Public Employees Relations Act of 1968 made those subjects “non-mandatory,” which means that they were non-negotiable as a governmental managerial prerogative. The NJEA transformed into “a trade union, concentrating on favorable contracts, rather than a professional organization concentrating on educational policy. . . . moving even further into a ‘union mentality’ with a 1979 decision to admit school clerical workers, bus drivers, cafeteria workers and aids.”5
C. Input v. Output
Urban educational reformers in the 1970s “embraced state assessment tests and merit pay for teachers as ways of holding educators responsible for students’ performance.”6 While Robinson and Abbott focused more on input—measuring the money put into the education of a student, a 1997 Abbott dissent favored output—measuring the achievement of a student, as the measure of T&E. “[E]mphasizing standards, testing, and strict accountability of how funds are expended . . . can give children in the special needs districts a real opportunity to secure a competitive education. Parity in funding, on the other hand, has and will continue to provide those children with empty promises. ” 7
Despite the good output of New Jersey students overall, this was not good enough according the state’s school financing expert witness in Abbott XXI. Dr. Eric Hanushek, an out of-state expert called into New Jersey to testify against Abbott spending, did not find a strong positive correlation between New Jersey spending and achievement. “I would have expected that its students did significantly better than the national average, which did not have nearly as large of an increase in resources.” 8
Dr. Hanushek also attacked the venerable tenure laws. “[E]xperience, except for the first year or two, has no relationship with a teacher's ability.”9 He proposed instituting a teacher evaluation system that measures student scores taking into account student “family background, poverty, neighborhood effects and so forth, to calculate what's called the value added to teachers; what is the separate impact of a teacher on student learning.”10
New Jersey schools were the fourth most segregated in the nation in 2000.11 Revoking tenure for lack of student achievement while ignoring the challenges of race will harm high minority DFG A and B districts and make them even less attractive places to teach, while teachers in DFG I and J, with few minorities, will remain year after year, maintaining the stability of the school and its culture. Low teacher quality is not the source of the achievement gap since it cuts across districts and revoking tenure will not solve the problem. Rather the achievement gap will be closed through transformational leadership, leadership with vision, leadership that imbues high expectations, advocates the reform of curricula, coordinates professional development of strong implementation teaching, and a relentless supervision of effective district-wide programs of continuous data analysis and remediation.
D. Changes in SFRA
SFRA in 2009 was generous to districts in with increased enrollment, especially those with at-risk, or low-income students. Anything was an improvement over CEIFA, which kept district locked at 2002 numbers. SFRA subsequently was underfunded and locked districts at their 2009 enrollment numbers. It will be extremely important for districts to report accurate enrollment numbers in 2013 when SFRA will be fully funded, in case the 2013 funding will become locked again in 2014 and so on. Districts with significant increases in enrollment will not be fully funded even in 2013, however, because annual increases in state aid are capped under SFRA. “The increased aid to districts that are spending above their adequacy budgets will be capped at 10%, while the increased aid to districts that are spending below adequacy will be capped at 20%.”12
Districts also will have to pay close attention to daily attendances for each student as funding will be based on “measuring district enrollment using average daily attendance rather than the current single (October 15) count day.” 13 This will certainly decrease funding for low achieving schools notorious for their daily low attendance rates.
In order to help close the achievement gap in all districts, the Department of Education will be setting up seven field-based Regional Achievement Centers (RACs) that will work with “priority” or failing schools in 2013. Priority schools will implement the following principles to improve student performance: 1). School climate & culture, 2) Principal leadership, 3) Quality of instruction, 4) Quality of standards-based curriculum, assessment, intervention system, 5) Effective use of data to improve student achievement, 6) Effective staffing, 7) Academically-focused family & community engagement, and 8) Redesigning school time.14 New Jersey set up this program as a condition for waiver of Annual Yearly Progress (AYP) under the federal No Child Left Behind Law.15 “The NJDOE believes that continuing to determine AYP would be inconsistent with the State-developed differentiated recognition, accountability, and support system described in New Jersey’s ESEA flexibility request.” 16
The premise of ending Abbott financing was to fund districts for their individual children at risk as rather than for particular districts at risk. Under SFRA, districts received an extra 47% - 57% for each at risk student, the exact percent in this range depending on the number of at risk students in the district. The 2013 funding is to be lowered to 42% - 46%, which comes out to a $478 to $1,101 decrease for each student. Extra funding for Limited English Proficiency students is lowered from 50% to 47% or $264 less. Both reductions will impact New Jersey’s under achieving districts the most. Overall, school districts “will lose $750 million just from the current year (FY12) to the next school year (FY13), with the impact falling hardest on those very districts the SFRA formula was expressly designed to benefit: those with growing numbers of ‘at-risk’ students outside the 31 former Abbott districts.” 17 Litigation is certain as the greatest impact will be “in DFG A were the adequacy amounts will be reduced by $231 million or$964 per pupil while DFG J adequacy amounts are only reduced by less than $1 million or $16 for each student. 18 We can expect Abbott XXII in the near future.
E. The Authority to Make the Changes in the SFRA
The governor is allowed, on his own initiative, to modify the weights for “at-risk pupils, bilingual pupils, and combination pupils. . . . . The amounts shall be deemed approved . . . [unless] the Legislature adopts a concurrent resolution stating that the Legislature is not in agreement with all or any specific part of the report.”19 This is a legislative veto, a reservation in enabling legislation that allows the legislature to disapprove the action of the executive without presentment for his signature. The legislative veto is constitutional in New Jersey when the enabling “statute gives the Executive extensive authority in the policy-making process.”20 The extensive authority in the SFRA in found in the requirement of recommendations by the governor to make the modifications on “September 1 of 2010 and by September 1 every three years thereafter. . . . ”21 It is unclear why process should not have begun until September 2013.22
Conclusion
We have explored home rule and how it neglected the cities and exacerbated an urban underclass. The New Jersey Supreme Court, with its long history of judicial activism, stepped into the political arena to force the hand of the legislature and taxpayer. Nowhere has this had as great an impact as on education. Aside from institutional questions of separations of power, we can ask, has it worked? The answer might depend of what one expects out of schools. If schools are to teach citizenship, to bind all our peoples into a single nation, to give every kid the opportunity to excel or to fail depending on his or her own effort, then the experiment was a great success. But if the experiment was guarantee that all children would be equally successful, that the underclass would no longer exist, that every child would graduate high school and go to college, then it was a failure. One thing is certain; education in New Jersey will remain high priority. The debate, however, between equal monetary input and test score output as the measure of opportunity, will continue.