"The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all children in the State between the ages of five and eighteen years."

New Jersey Constitution, Article VIII, Section IV, paragraph 1

From 1881 on, the property tax revenues were diverted from the state to the counties, which then distributed them on an equal, per-student basis. Under the prior system, all students across the state were guaranteed nearly equal spending; the 1881 law ensured that students within the same county would enjoy equal resources.

The recent history of public education in New Jersey centers around the concept of local autonomy. Although individual school districts were responsible for meeting minimal statewide requirements (most notably, of course, the "thorough and efficient" requirement of the state constitution), local school boards retained direct control over the programs and courses which would be offered, and the local property tax was the primary method for funding the public school systems.

As the New Jersey Supreme Court noted in one of its many decisions dealing with education in the state, "the quality of education has been left largely in local hands. Local school boards and municipal officers obviously consider not only education needs by also the sentiment of the taxpaying public." ³

The inevitable result of this, however, was that in those richer districts with higher property values, which also usually had only one family living in the majority of buildings, more money was raised through the tax to be spent on education. Within urban districts, not only were property values much lower, but because many families would reside in the same apartment building, the ratio of students to potential sources of tax income (that is, buildings), was much higher as well.

These two factors resulted in a great disparity in per-pupil spending between rich and poor districts within the state.

In 1972, a Superior Court held that the funding of public schools, relying as heavily as it was on local property taxes, violated the thorough and efficient clause of the state constitution, as well as the equal protection clause of the U.S. Constitution. "Clearly," the Court's ruling read, "a large number of New Jersey children are not getting an adequate education. This is caused in part by insufficient funds in many districts despite high taxes."⁴

The court's ruling was centered around the gross inequities that the property-tax-based system of funding created.

The bulk of the decision was dedicated to listing the various deficiencies in poor school districts throughout the state, due (according to the logic of the decision) to the fact that they had insufficient revenues.

The ruling spoke of closets serving as libraries, people teaching for over twenty years with only "emergency" teaching certificates, and science text books dating back thirty years, when walking on the moon was still considered science fiction. It assailed the concept of local control as a defense of the current system of funding through property taxes, declaring that "local control and responsibility cannot be used to justify a system that breed substantial disparities in the quality of education…local control is illusory. It is control for the wealthy, not for the poor." ⁵

The Supreme Court slightly modified, but substantively affirmed the ruling. ⁶ Upon hearing further arguments from the state, however, the Court – out of deference to separation of powers – allowed the current funding system to remain untouched until there was sufficient time for legislative action to be taken.

The Court set a deadline of December 31, 1974, for the legislature to enact a new, more equalized funding system, which was to take effect no later than July 1, 1975. ⁷

In May of 1975, the Court issued a ruling that extended the legislature's deadline; although it allowed the current system to apply for one more year, the Court warned that it would impose its own provisional system for the 1977-78 school year unless the legislature complied with its prior rulings.⁸

Following this ruling, however, the legislature passed the Public Education Act of 1975.

The law stated that "The goal of a thorough and efficient system of free public schools shall be to provide to all children in New Jersey, regardless of socioeconomic status or geographic location, the educational opportunity which will prepare them to function politically, economically, and socially in a democratic society."⁹

The Court, in its ruling on the constitutionality of the law, reaffirmed a position it had taken since its first Robinson decision - "if the local government cannot carry the burden [of adequately funding education], the State must itself meet its continuing obligation." ¹⁰

The Court found that the law did not fully address this obligation - it did not specify from where state funds would come to fulfill this duty. "The 1975 Act," the opinion reads, "is silent as to how this contingency of local fiscal inability is to be met. It does not say, in so many words, where the money is to come from in the event of a showing that a local school district is performing inadequately due to a fiscal insufficiency." ¹¹

Nevertheless, the Court upheld the constitutionality of the law, "assuming it is fully funded." ¹²

Needless to say, the legislature did not authorize funding for the bill the next year, so the case was again presented before the Supreme Court. As a result, the Court ruled that "the existing unconstitutional system of financing the schools into yet another school year cannot be tolerated." ¹³ The court declared that "On and after July 1, 1976, every public officer, state, county or municipal, is hereby enjoined from expending any funds for the support of any free public school."¹⁴

The New Jersey Supreme Court shut down the unconstitutionally funded public school system. Close to 100,000 students were prevented from attending summer school as the legislature raced to devise a solution. ¹⁵ The solution championed by then-governor Brendan Byrne was the state's first income tax, which would be directly channeled into funding public schools. Satisfied with this solution, the Court lifted its injunction, and the public school system operated normally for a few years.¹⁶

Less than five years later, in 1981, Marilyn Morheuser of the Rutgers University Education Law Center, confronted with the fact that the disparity in spending and achievement between the richest and poorest school districts was growing, filed a class action suit on behalf of the twenty-eight poorest school districts in the state.¹⁷ Nine years and four million dollars later, the state Supreme Court ruled on the case – Abbott v. Burke – and maintained that the system was unconstitutional.

The ruling held that spending parity must be achieved between the state's poorest districts and the wealthiest ones.

The most recent wave of changes in the way public education in New Jersey is funded – sparked by the original Abbott decision – began with the Quality Education Act of 1990, passed under Governor Jim Florio.

Its goal was to "enhance educational opportunities for New Jersey's children by guaranteeing all school districts an adequate level of state aid" (15). The bill provided for $4.2 billion in state aid to school districts, as well as a $25 million discretionary fund the Commissioner of Education could use for supplemental aid.

The Quality Education Act was based on the concept of "foundation funding." This essentially meant that the state determined what basic amount must be spent, per pupil, to achieve the constitutionally required thorough and efficient education. There were separate requirements for various grades, in recognition of the fact that costs are higher in high schools than they are in elementary schools.

For instance, the 1991-92 foundation amount for a first grader was $6,640, while the foundation amount for a high school freshman was $8,831. There were also special considerations for vocational students; special education students received additional state aid. The totals were indexed to increase with inflation.

The state was responsible for providing aid to those districts unable to achieve their minimum required spending (which was, essentially, the number of students they had in each grade multiplied by the appropriate foundation amount for that grade).

State aid was judged as the difference between a local community's fair share and the total minimum required spending. The local fairhare, in turn, was based upon the income in the community and the property values. In addition, the thirty poorest urban districts, which were judged to have special needs, receive even more assistance from the state.

Categorical aid was also available for special education, bilingual education, programs for at-risk pupils, and county vocational education programs.

Although the QEA began as a redistributive program, it was later amended so that some money would be diverted from the urban districts to aid in property tax relief. The matter was again brought before the Supreme Court.

In the Abbott v. Burke ruling of 1994, the Court reaffirmed that "for these special needs districts, a thorough and efficient education… is an education that is the substantial equivalent of that afforded in the richer districts," and ruled that the Quality Education Act was unconstitutional due to its "failure to assure parity of regular education expenditures between the special needs districts and the more affluent districts."¹⁸

The Supreme Court refrained from passing any new requirements on the state, however, as the legislature had appropriated an additional $700 million in extra aid to the special needs districts, which was "a constitutionally legitimate response" to the original ruling.¹⁹ The Court also warned that it would invite applications from relief from the plaintiffs unless the spending in the poorest districts, which at that point was 84% of spending in the wealthiest ones, did not achieve 100% parity by the 1997-98 school year.

The Court objected specifically to the excessive discretionary authority granted to the legislature by the QEA. The law set forth a base per-pupil amount that each district was required to spend (either through its own local revenues, or with state aid) on students' education

This number was multiplied by a "special needs" multiplier of 1.05 for the poorest districts in the state, guaranteeing that more money would be spent per-pupil in those areas than in the majority of districts in the state. This "special needs "multipler" was the vehicle through which parity in spending was to be achieved between the richest and poorest districts. AS the multiplier increased, more money would be spend per-pupil in the special needs districts, and parity in spending would be closer to becoming a reality.

The Court took issue with the fact that it required legislative authorization, which was never exercised, to increase the multiplier to what it needed to be in order for parity to be achieved. "Because the QEA's design for achieving parity depends fundamentally on the discretionary [emphasis in original] action of the executive and legislative branches to increase the special needs weight… the statute fails to guarantee adequate funding for these districts."²⁰ The Court also recommended that the state exercise sufficient oversight to ensure that the compensatory funding to the special needs districts was being appropriately spent.

In 1996, the state legislature passed the Comprehensive Education Improvement and Financing Act (CEIFA), which was an initiative of Republican Governor Christie Whitman. This bill was the first time the legislature actually attempted to define what exactly is meant by the "thorough and efficient" clause in the state constitution. It was Whitman's attempt to get the court to shift its focus from achieving exact parity in spending among diverse school districts to focusing instead on the results - "textbooks instead of checkbooks."²¹

"Thorough" was held by the legislature to mean "core curriculum content standards." That is, for a student's education to be thorough, he or she must be guaranteed the opportunity to learn a certain range of subjects.

Creation of courses and programs that would meet these minimum requirements would be left to the discretion of individual school districts, thereby helping to retain "home rule," or local control of schools, which is an important concern to many parents.

"Effective," on the other hand, was defined by the legislature to mean that a sufficient amount of money spend on providing education. Under the law, the Commissioner of Education must submit a report to the legislature every two years, detailing how much it would cost, per pupil, to provide the kind of thorough education required by the Constitution.

This figure is presented in the form of a range, called the T&E Range, into which each district's per pupil spending must fall in order to be meeting the Constitution's efficiency requirement. This would theoretically ensure that every student in the state, regardless of where they attended school, would be receiving a comparable education.

Spending above and beyond that range is held to be exceeding the efficiency requirement, and so is at the sole discretion of the local school board. Thus, there is a sharp distinction between constitutionally required spending, and local discretionary spending. Under the plan, approximately $7,200 would be spent per student, although me affluent districts would be at liberty to spend more.²²

The CEIFA passed the state Assembly by a vote of 49-28, and the Senate with a vote of 23-16. It was signed into law by the Governor in late December, but was overturned by the state Supreme Court barely five months later in a long-anticipated decision in a case that had been dragging on for nearly a decade.

The Court, in Abbott v. Burke, ruled on each of the two main parts of the CEIFA - the core curriculum standards and the funding formula - separately. Justice Adam B. Handler, writing for the majority, upheld the standards, commenting in his decision that they "are facially adequate as a reasonable legislative definition of a constitutional thorough and efficient education."²³

Nevertheless, the court struck down CEIFA's funding plan as unconstitutional, on the grounds that it would discriminate against poorer school districts by allocating them less money. Handler wrote "content standards... cannot answer the fundamental inquiry of whether the new statute assures the level of resources needed to provide a thorough and efficient education to children in the special needs districts."²⁴

Because the CEIFA made no attempt to link the core curriculum standards to the "actual funding needed to deliver that content", it was ruled to be "clearly inadequate and this unconstitutional."²⁵

Supporters of the CEIFA, arguing before the Supreme Court, proposed a twofold defense of the spending differential between wealthy and poor districts. They maintained that the high level of expenditures by the affluent districts on public education were simply wasteful Such spending was not necessary to achieve a thorough and efficient education.

Secondly, they argued that the issue with the poorer districts was not that they needed to receive more money from the state, but instead that they must spend the resources they currently receive more efficiently. Proponents of the legislation adamantly maintained that waste, not unfairness, was the reason for low levels of performance in lower-income districts.

The Court rejected such reasoning in its ruling, however. Handler pointed out that in the school districts which the state was running, the Commissioner of Education, in an attempt to bolster achievement in those schools, authorized expenditures far exceeding those which CEIFA would have allowed. Furthermore, the Court affirmed that the need of the poorest school districts to utilize their current resources more efficiently does not detract from their need for additional state support.

Justice Marie Garibaldi was the lone dissenter from the decision, arguing that the thorough and efficient clause of the state constitution guarantees minimum level of education that must be provided - it does not mandate an equal education. "The drafters of the constitution could have provided that each child receive an 'equal' education, but they did not, and the majority should not rewrite the Constitution."²⁶

It must be noted that in the Supreme Court decisions dealing with parity in funding, the contrast has always been between the wealthiest and poorest districts.

Never has there been an effort made to ensure that the poorest districts achieve parity with middle-class, average schools, nor has there been any attempt to raise the standards for public schools falling in the middle of the spending spectrum - which constitute the majority of schools in the state.

Furthermore, no proposals were considered which would ensure that all schools in New Jersey achieve parity in spending.

True parity in spending cannot ever truly be achieved in a free society. Parents in wealthy districts should have the right to tax themselves as much as they desire in order to provide the best possible education for their children.

Even if a cap were placed on the amount of money that a school could receive, per pupil, through government channels, would the schools also be required to reject outright donations from parents as well? A strict equity-in-spending requirement would put the state in an adversarial role with parents who are looking to ensure that their children receive the best possible education.

If the state sufficiently limits the quality of education that the children of affluent parents can receive in public schools, and even those of middle-class parents who had been blatantly ignored in the Abbott decisions, these students will simply begin attending private or religious schools, where the state's funding regulations cannot intervene. Thus, a public education system meant to be available toveryone would be made desirable only to those who could not afford any other alternative.

Many people even doubt that throwing more money at the problem is the solution. In one of its decisions calling for equalized spending, the Supreme Court even noted that "New Jersey ranks high, third in the nation, in current expenditure per pupil."²⁷ Is it possible that, despite the fact that more money is spent on the average student in N.J. than in all but two other states, this is still not a sufficient amount?

Instead of the current policy of ever-increasing transfer payments to certain districts, concentrating on a minimum spending requirement, which local school districts are free to exceed, is a constitutionally acceptable compromise that guarantees all students at least a certain core education.

As Justice Garibaldi accurately noted in her dissent, the Constitution mandates a thorough education; once this requirement is met, there is nothing in that document which prevents those districts which are capable of doing so from providing their students with an education exceeding this standard. "A thorough and efficient education does not mean that every child must receive the same education."²⁸

Many legislators were also outraged over the decision. General Assembly Speaker Jack Collins called the decision "the most negative of any in my time here for the future of New Jersey."²⁹

His main concern was that the decision would force taxes to rise dramatically; as spending in wealthy districts escalated,³⁰ more state revenue would be diverted to the poor districts to maintain parity with these expenditures. This would undoubtedly be perceived as inherently unfair to the middle-income districts, which were worried by the ruling. The fear was that it could potentially raise the quality of certain districts' education by lowering the quality of the majority of districts in the state, which were ignored by the Court.

According to one article in the Home News and Tribune, "State aid has pretty much bottomed out for some of these districts, and taxpayers can't afford a heavier burden… The funding situation… likely will remain bleak if the state neglects them in favor of the special-needs districts."³¹

In response to the Court's ruling, Governor Whitman reallocated $250 million to urban schools, but required then to submit specific proposals as to how the money would be spent.³² This step was criticized by Assemblyman Craig Stanley as a plan "to attack the home rule of the Abbott districts."³³

Implementation of the ruling, while allowing for some much-needed improvements in some school districts, was unable to affect the root of the problem with providing an equal education to everyone - the fact that poorer districts had a large number of "kids who don't speak English, young parents, drug-addicted parents," and low attendance rates.³⁴

The Robinson and Abbott decisions have concentrated mostly on achieving parity in spending throughout the existing school districts in the state. One other potential solution to the financial and racial problems posed by the existing inequities in our education system is school regionalization.

This essentially means taking several small "constituent" school districts and merging them into one large district. Proponents of the plan believe that this will result in increased financial savings, because redundant administrative services (e.g. a superintendent for each district, as well as certain administrators) could be eliminated. In addition, curriculum could be standardized throughout the district, and per-pupil funding would be equitable.

Furthermore, specialized extracurricular programs and classes could be offered, due to both the increased funding base that the regionalized district would have, stretching across many towns, as well as the increased number of students attending each school within the district - making certain "niche" programs more feasible because of an increased population from which to draw student participation. Another major argument in favor of regionalization is the existence of many small "non-operating school districts" within the state.

Such non-operating districts use local tax dollars to pay for the overhead of the usual administrative personnel, but do not actually run any schools themselves. Instead, these districts merely send students to schools outside of their district, paying a per-pupil tuition fee to do so. Finally, by regionalizing across many different kinds of school districts, racial inequities could be balanced.

If a mostly minority inner-city school district was regionalized with a suburban white school district, not only would more funding flow into the inner city schools (due to the high property taxes in the suburbs), but district administrators would also be able to ensure that the racial composition of the schools within that district were heterogeneous; there would be no more de facto segregation of poor minorities.

Opponents of regionalization point out that what the district saves in eliminating administrative costs will be paid out again in increased transportation expenses. By consolidating school districts and closing down some schools, it will cost more money to transport students to schools which are further away; in addition, because of the increased distance, there will be even more students requiring transportation than before.

Secondly, detractors of regionalization feel that parents will have less direct impact on the schools; school boards, instead of catering to a constituency that is the size of a municipality, now would be responsible to a broader-based segment of the public, stretching across many towns and cities. As a corollary to this, it is feared by some that regionalization means the establishment of a large, impersonal, centralized bureaucracy, instead of smaller-scale, more localized administrations.

Finally, some residents of middle- and upper-class districts resent having some of their tax doars, which had been going to fund their own children's education, be siphoned off to inner city-districts. They are distressed at the potential that some of their children would have to be bused to an inner city school, and that children from that district would be coming to their school.

Stereotypes and statistics, rumors and hard facts, combine to create an image of urban schools, and urban school students, that some parents do not want their own children to get involved with.

The major issue, however, is not whether school districts should be permitted to regionalize on their own, but whether the state legislature, the Commissioner of Education, or the courts should have the power to force them to regionalize. A major battleground over the issue of forced school regionalization has been in the Englewood Cliffs (here referred to as "Cliffs"), Tenafly, and Englewood Township (here referred to as "Township", a largely minority community) school districts. Cliffs, a school district without high schools, had been sending its students to Dwight Morrow High School in the Township. Cliffs wanted to terminate the relationship; the Township, however, went to court in order to maintain it, arguing that the racial imbalances resulting from the withdrawal of the largely white Cliffs population would be unacceptable.

The N.J. Supreme Court affirmed a lower court's decision, ruling that the state could force Cliffs to stay in the relationship.³⁵

As the litigation over the issue was still in progress, opponents of regionalizion attempted to strike a crippling blow against the movement when New Jersey state Senator Gerald Cardinale, in direct responses to the Englewood situation, introduced a concurrent resolution into the education committee which would amend the state constitution to include the following provision:

The resolution eventually passed the Senate by a vote of 24-14-2, but was never considered by the Assembly under Republic Speaker Chuck Haytaian³⁷, who later made an unsuccessful bid for Governor and is currently chairing the state Republican Committee.

Had the resolution been passed by the State Assembly and Senate, it would have been submitted to the voters in the next election for their ratification.

The resolution was sponsored by 19 senators - one less than half of the Senate.³⁸ The Senate education committee favorably reported the resolution to the floor.³⁹ As part of the constitutional amendment process, public hearings were held on the resolution, in which every person who testified, with the exception of Senator Cardinale, opposed its passage.

Cardinale, in testifying before the committee, crystallized the issue. He claimed that the controversy was essentially over whether the government should have the power to "force communities nearby the so-called segregated communities to regionalize with that district, despite the wishes of the residents of the affected community".⁴⁰ He argued that the resolution would:

He maintained that racial imbalances in schools were the direct result of "housing patterns, through where people have chosen to live, not through governmentally enforced or encouraged segregation."⁴²

The opponents of the amendments - that is, those who supported compulsory regionalization - pointed to the only instance of "forced regionalization" in the state's history, the merging of Morris Township (referred to as "the Township") and Morristown's (referred to as "the Town") school districts. The case had been litigated up to the state Supreme Court some twenty years earlier in 1971.

A unanimous court ruled that the Commissioner of Education had the power to force the school districts, which had previously been in a sending-receiving relationship, to regionalize (merge).⁴³

In the sending-receiving relationship, high school students from the Township attended Morristown High School, for over one hundred years. They had most recently signed a ten year contract, which was to expire in 1972 The Township was trying to terminate this relationship, and create its own school system.

The Township Board of Education had even conducted a non-binding referendum to determine what the voters wanted; by a vote of 2164 to 1899, the Township's residents declared that they wanted independence.

The Court found the Morristown High School to be an "excellent educational institution," with "comprehensive courses of instruction."⁴⁴ The Justices felt that by allowing the predominantly white district to terminate the relationship, the high school "could not continue to provide the same scope and variety of course"' and that "the remaining students would be, as a group, from lower socio-economics backgrounds and be less oriented toward academic achievement… the sudden alteration in the racial composition of the High School might aggravate the tendency of potential white buyers to avoid purchasing houses in Morristown."⁴⁵

According to the decision, if the Township were permitted to withdraw, by 1980 the high school would have a 56% black population, as opposed to 35% if the Township were compelled to stay. Therefore, the court ruled that in order to eliminate such racial imbalanced, the Commissioner of Education could order the districts to regionalize against the Township's will.

Stephen Wiley, Esq., who testified before the Senate committee on the proposed constitutional amendment, spoke of the current status of the Morris Township-Morristown regionalized district. He described it as a "happy, beaming place... an integrated, well-ordered community."⁴⁶

This, he argued, was direct evidence that forced regionalization was, on certain, rare occasions, both necessary and beneficial.

He furthermore pointed out that under the proposed resolution, not only would court-ordered regionalization be prohibited, but incentives to regionalize would also be unconstitutional. "Making aid available to assist districts that rationally ought to get into regional structures... [could be interpreted as] a penalty on anyone who refused."⁴⁷

Therefore, the estimated 25 school districts which didn't have any schools at all, as well as the approximately 100 districts which did not have a complete K-through-12 system of their own, but had to send their students out-of-district for at least part of their education, would have no incentives to regionalize.

Other points were brought up by various other adversaries of the constitutional amendment. Paul Tractenberg, Esq., warned that the resolution would prevent the state from combating the trend toward the creation "of two public education systems in New Jersey: one for the wealthy and suburban and white, and the other for the minority and inner city."⁴⁸

He furthermore claimed that "white children as well as black... [are] harmed by being educated in a nonbalanced setting, in a racially imbalanced or segregated setting." ⁴⁹

The New Jersey School Boards Association, representing most if not all of the school boards in the state, also opposed the resolution, despite the fact that they are usually opposed to forced regionalization. They felt that it was wrong to deny the courts the power to mandate regionalization, if necessary to "protect the civil rights of children."⁵⁰

The state president of the NAACP also made a passionate presentation against the amendment:

Howard West, of the Asbury Park/Neptune branch of the NAACP, also testified against the resolution. He attested, "I do not trust the ballot. When a person goes into that booth and pulls that lever, that makes up 90%, you cannot tell what's going to happen over there. That bill that comes out will set back this state; if might happen. And that bothers me"⁵².

David Sciarra, of the Public Advocate's office, warned that the resolution could be opening the door for federal intervention in the state's school system. The Federal courts can only impose interdistrict remedies for racial segregation when the state itself has acted to create or preserve that segregation... SRC-23, which was proposed in response to the Englewood case, freezes into place existing school district boundaries and patterns of racial segregation.⁵³

With this argument, Sciarra appeals to one of the worst fears of those who put forth the amendment. He argued that by passing the resolution, the state was in fact codifying segregation - which the United States Supreme Court expressly outlawed in Brown v. Board of Education in declaring that "Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment… in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."⁵⁴

Such legislatively sanctioned de facto segregation would give the Federal judiciary the authority to intervene, which is the ultimate revocation of local control, or home rule, which is what the amendment's sponsors were trying to safeguard. Having a federal judge become the effective superintendent of a school district was the last thing any of the bills proponents wished to allow.

With all of the attention given to the disparity between rich and poor districts, some question whether sufficient concern is being shown to the silent majority in the middle of the quality spectrum. In addition, it is important to ensure that the issue of race does not overshadow what is, and should always be, the main issue - a "thorough and efficient" education for all children in the state of New Jersey.