Abbott v. Burke

• Decision Date: 24 May 2011
• Citation: 206 N.J. 332,20 A.3d 1018,268 Ed. Law Rep. 328
• Parties: Raymond Arthur ABBOTT, a minor, by his Guardian Ad Litem, Frances ABBOTT; Arlene Figueroa, Frances Figueroa, Hector Figueroa, Orlando Figueroa and Vivian Figueroa, minors, by their guardian Ad Litem, Blanca Figueroa; Michael Hadley, a minor, by his Guardian Ad Litem, Lola Moore; Henry Stevens, Jr., a minor, by his Guardian Ad Litem, Henry Stevens, Sr.; Caroline James and Jermaine James, minors, by their Guardian Ad Litem, Mattie James; Dorian Waiters and Khudayja Waiters, minors, by their Guardian Ad Litem, Lynn Waiters; Christina Knowles, Daniel Knowles and Guy Knowles, Jr., minors, by their Guardian Ad Litem, Guy Knowles, Sr.; Liana Diaz, a minor, by her Guardian Ad Litem, Lucila Diaz; Aisha Hargrove and Zakia Hargrove, minors, by their Guardian Ad Litem, Patricia Watson; and Lamar Stephens and Leslie Stephens, minors, by their Guardian Ad Litem, Eddie Stephens, Plaintiffs–Movants,v.Fred G. BURKE, Commissioner of Education; Edward G. Hofgesang, New Jersey Director of Budget and Accounting; Clifford A. Goldman, New Jersey State Treasurer; and New Jersey State Board of Education, Defendants–Respondents.
• Court: New Jersey Supreme Court

206 N.J. 332

20 A.3d 1018

268 Ed. Law Rep. 328

Raymond Arthur ABBOTT, a minor, by his Guardian Ad Litem, Frances ABBOTT; Arlene Figueroa, Frances Figueroa, Hector Figueroa, Orlando Figueroa and Vivian Figueroa, minors, by their guardian Ad Litem, Blanca Figueroa; Michael Hadley, a minor, by his Guardian Ad Litem, Lola Moore; Henry Stevens, Jr., a minor, by his Guardian Ad Litem, Henry Stevens, Sr.; Caroline James and Jermaine James, minors, by their Guardian Ad Litem, Mattie James; Dorian Waiters and Khudayja Waiters, minors, by their Guardian Ad Litem, Lynn Waiters; Christina Knowles, Daniel Knowles and Guy Knowles, Jr., minors, by their Guardian Ad Litem, Guy Knowles, Sr.; Liana Diaz, a minor, by her Guardian Ad Litem, Lucila Diaz; Aisha Hargrove and Zakia Hargrove, minors, by their Guardian Ad Litem, Patricia Watson; and Lamar Stephens and Leslie Stephens, minors, by their Guardian Ad Litem, Eddie Stephens, Plaintiffs–Movants,

v.Fred G. BURKE, Commissioner of Education; Edward G. Hofgesang, New Jersey Director of Budget and Accounting; Clifford A. Goldman, New Jersey State Treasurer; and New Jersey State Board of Education, Defendants–Respondents.

Supreme Court of New Jersey.

Argued Jan. 5, 2011.Remanded Jan. 13, 2011.Special Master's Report Filed March 22, 2011.Reargued April 20, 2011.Decided May 24, 2011.

David G. Sciarra, Executive Director, Education Law Center, argued the cause for movants (Mr. Sciarra, Gibbons, and White & Case, attorneys; Mr. Sciarra, Lawrence S. Lustberg, Newark, Elizabeth A. Athos, Jersey City, Theresa S. Luhm, Eileen M. Connor, Newark, John D. Rue, Brandon C. Freeman, Gregory G. Little, and Derrick F. Moore, members of the New York bar, on the briefs).Peter G. Verniero, Special Counsel, argued the cause for respondents (Paula T. Dow, Attorney General of New Jersey, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; Ms. Kaplen, Robert T. Lougy, Michelle Lyn Miller, Assistant Attorneys General, Shannon M. Ryan, Lisa D. Kutlin, and Michael C. Walters, Deputy Attorneys General, on the briefs).Stephen R. Fogarty submitted a brief on behalf of amici curiae Montgomery Township Board of Education and Piscataway Township Board of Education (Fogarty & Hara, attorneys; Mr. Fogarty and Jane Gallina–Mecca, Fairlawn, of counsel; Mr. Fogarty, Ms. Gallina–Mecca, and Cameron R. Morgan, on the brief).Richard E. Shapiro, Princeton, submitted a brief on behalf of amici curiae Boards of Education of City of Bridgeton, City of Burlington, City of East Orange, Jersey City Public Schools, City of Perth Amboy, Town of Phillipsburg, and City of Trenton.John D. Rue submitted a brief on behalf of amici curiae Disability Rights New Jersey, Alliance for the Betterment of Citizens with Disabilities, Cherry Hill Special Education Parent Teacher Association, New Jersey Down Syndrome Government Affairs Committee, New Jersey Speech–Language–Hearing Association, Special Education Clinic at Rutgers University School of Law–Newark, Special Education Leadership Council, and Statewide Parent Advocacy Network (White & Case, attorneys; Mr. Rue, Jayashree Mitra, a member of the New York bar, and Mary A. Ciccone, on the brief).Avidan Y. Cover submitted a brief on behalf of amici curiae New Jersey State Conference of the NAACP, New Jersey Black Issues Convention, and Paterson Education Fund (Seton Hall University School of Law Center for Social Justice, attorney).Arsen S. Zartarian, Deputy General Counsel, submitted a letter brief on behalf of amicus curiae State-operated School District of the City of Newark.Kathleen Naprstek Cerisano, Newark, submitted a letter brief on behalf of amicus curiae New Jersey Education Association (Zazzali, Fagella, Nowak, Kleinbaum & Freidman, attorneys).Justice LaVECCHIA delivered the opinion of the Court.

The schoolchildren who comprise the plaintiff class in the Abbott v. Burke litigation have been denominated victims of a violation of constitutional magnitude for more than twenty years.¹ Because of the severity of their constitutional deprivation, that class of pupils was determined to be deserving of special treatment from the State. Remedial orders were imposed to provide the education funding and services required to ameliorate the pupils' constitutional deprivation. The State has for decades recognized the special status of that plaintiff class of pupils,² and its compliance with this Court's remedial orders demonstrates the State's long recognition that plaintiffs' constitutionally based remedies have imbued them with status akin to that given to wards of the State. In sum, the Abbott plaintiffs have been the long-standing beneficiaries of specific judicial remedial orders, which were entered to correct proven constitutional deprivations that the State was unable to correct on its own, and which specifically directed the method by which the amount of funding to their school districts was to be calculated and provided by the State.

It was against that backdrop that the State applied to this Court two years ago, asking to be relieved of the orders that required parity funding and supplemental funding for children in the so-called “Abbott districts” (in combination, “the parity remedy”) in exchange for providing funding to those districts in accordance with the School Funding Reform Act of 2008 (SFRA), L. 2007, c. 260 ( N.J.S.A. 18A:7F–43 to –63). The State persuaded us to give it the benefit of the doubt that SFRA would work as promised and would provide adequate resources for the provision of educational services sufficient to enable pupils to master the Core Curriculum Content Standards (CCCS). Accordingly, we granted the State relief from those remedial orders that bound it to the parity remedy for the pupils from Abbott districts, and authorized the State to implement in Abbott districts SFRA's level of funding. Abbott v. Burke, 199 N.J. 140, 971 A.2d 989 (2009) ( Abbott XX ).

It is now undisputed that the State has failed to fully fund SFRA in Fiscal Year (FY) 2011. The record in this matter shows generally that the cuts to school aid funding, in districts of various needs, have been instructionally consequential and significant.

The exchange of remedial orders correcting constitutional deprivations for the State's alternative—SFRA funding—did not alter the constitutional underpinnings to the replacement relief. Our grant of relief in Abbott XX was clear and it was exacting. It came with the express caveats of required full funding, and a mandatory retooling of SFRA's formulaic parts at designated mileposts in the formula's implementation. When we granted the State the relief it requested, we were not asked to allow, and did not authorize, the State to replace the parity remedy with some version of SFRA or an underfunded version of the formula. In respect of the failure to provide full funding under SFRA's formula to Abbott districts, the State's action amounts to nothing less than a reneging on the representations it made when it was allowed to exchange SFRA funding for the parity remedy. Thus, the State has breached the very premise underlying the grant of relief it secured with Abbott XX.

Plaintiffs have sought relief under Rule 1:10–3.³ They have just cause to seek vindication of litigants' rights. Like anyone else, the State is not free to walk away from judicial orders enforcing constitutional obligations.

In resisting the plaintiffs' present application, the State argues that we must defer to the Legislature because the legislative authority over appropriations is plenary pursuant to the Appropriations Clause of the Constitution. See N.J. Const. art. VIII, § 2, ¶ 2. Although it is true that past decisions of this Court have recognized the Legislature's authority to work a modification of other statutes through the adoption of an annual appropriations act,⁴ a different question is presented here. The State seeks, through the legislative power over appropriations, to diminish the Abbott pupils' right to funding required for their receipt of a thorough and efficient education after representing to this Court that it would not do so in order to achieve a release from the parity remedy requirement. In such circumstances, the State may not use the appropriations power as a shield from its responsibilities.

We hold that the Appropriations Clause creates no bar to judicial enforcement when, as here, 1) the shortfall in appropriations purports to operate to suspend not a statutory right, but rather a constitutional obligation, 2) which has been the subject of more than twenty court decisions or orders defining its reach and establishing judicial remedies for these plaintiffs for its breach, 3) where the harm being visited is not some minor infringement of the constitutional right but a real, substantial, and consequential blow to the achievement of a thorough and efficient system of education to the plaintiff pupils of the Abbott districts, and 4) where the formula the State has underfunded was one created by the State itself, and made applicable to the plaintiff pupils of Abbott districts, in lieu of prior judicial remedies, by this Court on application by the State based on specific representations that the statutory scheme of SFRA would be fully funded at least as to the Abbott pupils, and fully implemented as to those districts. In those circumstances, the State, having procured judicial relief based on specific representations, will not be heard to argue that the Appropriations Clause power leaves the plaintiff children of the Abbott districts without an effective remedy.

Although we are sympathetic to the difficulties that the State's failure to abide by its statutory formula for education funding has caused to children in districts statewide, we are limited in our ability to order relief in this matter. We can grant relief in litigants' rights only to the plaintiff class of children from Abbott districts for whom we have a historical...