New Jersey

In 2012, Education Law Center (ELC) filed suit against the NJ SDA (School Development Authority), which is allegedly violating a law requiring the SDA to allow eligible low-wealth school districts to manage the design and construction of needed school facilities. The governor halted virtually all school facilities projects in low-wealth school districts in early 2010, despite high needs and available funding.

On Abbott plaintiffs’ motion and after a three-week hearing, in 2011, the New Jersey Supreme Court affirmed the trial court and ordered the state to reinstate about $500 million of the $1.6 billion it had underfunded schools in the 2010-11 year. The state reinstated about $820 million for the 2011-12 year.

As a result of the Abbott v. Burke case, the state in 1998 began implementing better funding and educational programs in the state’s 30 lowest-wealth school districts, known as “Abbott districts,” which educate over 20% of the state’s students. The state also improved and built some school buildings in these districts, until the governor halted these projects in early 2010. 

In decisions from 1973 to 1976, in Robinson v. Cahill, the New Jersey Supreme Court held that the state constitution’s “thorough and efficient” education clause requires the state to ensure equal educational opportunity for school children. Though the court initially found the state was not meeting this mandate, after legislative actions, the court held that the state's revised school finance system was constitutional, on its face, because it afforded local districts a means of overcoming budget shortfalls and addressed disparities in per-pupil expenditures.

In 1981, in Abbott v. Burke plaintiffs filed a new challenge to the then-current school funding act, asserting that it was unconstitutional as-applied because the financial disparities among school districts remained excessive, and because the state had not demonstrated that it was adequately funding the low-wealth districts.

In Abbott II (1990) and Abbott III (1994), the Supreme Court of New Jersey declared the then-current education finance legislation unconstitutional as applied to low-wealth school districts, the “Abbott districts.” The court criticized the funding statutes for failing to ensure adequate resources for students in these districts to meet state educational learning standards and noted that students in Abbott districts need educational programs and services beyond those provided in wealthier districts.

In the landmark Abbott IV (1997) and Abbott V (1998) rulings, the court required the state to increase funding to ensure parity in per-pupil expenditures between the Abbott districts and the average of the state's 110 successful suburban school districts, and directed the state to conduct a study to determine the needs of Abbott students and the programs necessary to meet those needs. Based on the State’s study, the court ordered additional remedial measures for the Abbott children, including preschool for all three- and four-year olds, adequate school facilities, and “supplemental” programs.

In subsequent decisions over the following ten years, the court further clarified and enforced the constitutional mandate, and on a couple of occasions, temporarily relaxed requirements to allow the state to deal with fiscal crises and other challenges of implementation.

Then in 2008, the state legislature passed the School Funding Reform Act (SFRA), which created a statewide formula designed to increase aid to non-Abbott districts with large numbers of high-needs students. In Abbott XX, the Supreme Court of New Jersey declared the SFRA constitutional, with the caveats that the state must fully fund the formula and reassess it after three years of implementation.

However, the state underfunded SFRA, and plaintiffs returned to court in 2010. In a 2011 remand hearing, the state bore the burden of showing that the state’s school districts could deliver the state “content standards” and a “thorough and efficient” education to their students. The remand court, affirmed by the supreme court, held that, in fact, the districts could no longer deliver the necessary level of education due to the impact of the funding cuts.

For more details, see Education Law Center.

The 26-year-old, landmark desegregation case Bd. of Educ. of the Borough of Englewood Cliffs v. Bd. of Educ. of the City of Englewood, involves the racial segregation of Black and Latino students at the district high school. In 1985, ELC appeared on its own behalf and on behalf of the New Jersey State Conference of the NAACP as amici.

In 1997, 17 low-wealth rural school districts filed Bacon v. NJ State Dept. of Educ., alleging that their students are denied the “thorough and efficient” education guaranteed to them by the New Jersey Constitution. They claim that they are entitled to remedies comparable to those afforded the Abbott districts.

In 2008, the Superior Court, Appellate Division, confirmed a constitutional violation. However, because the state enacted the School Funding Reform Act (SFRA), the court remanded to the state Commissioner of Education to undertake individual needs assessments for each plaintiff district and determine whether SFRA funding would cure the constitutional violations. In 2009, the commissioner reported that SFRA would remedy the constitutional violations, assuming full funding of SFRA for these districts.

In 2011, after the New Jersey Supreme Court ordered full funding of SFRA for the Abbott districts, the Bacon districts filed a motion in the appellate division seeking the same relief, that is, reinstatement of full funding under SFRA. ELC, with co-counsel Gibbons P.C., filed as amicus to argue for a needs-based remedy for the low-wealth, rural Bacon school districts. The court denied plaintiffs’ motion and advised them to use a summary proceeding if they sought to compel compliance with the commissioner’s 2009 determinations. Plaintiffs have petitioned for cert in the state supreme court.

In 2009, in Crawford v. Davy, a state appellate court dismissed plaintiffs’ suit seeking a court order to institute a voucher program so students could leave their local public schools to attend other schools, either public or private, at public expense.

The education clause in New Jersey's State Constitution requires the legislature to "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." N.J. Const., art. 8, § IV, ¶ 1.

The New Jersey Supreme Court interpreted the education article in Robinson v. Cahill:

“…we do not doubt that an equal educational opportunity for children was precisely in mind. The mandate that there be maintained and supported ‘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' can have no other import. Whether the State acts directly or imposed the role upon local government, the end product must be what the Constitution commands. A system of instruction in any district of the State which is not thorough and efficient falls short of the constitutional command. Whatever the reason for the violation, the obligation is the State's to rectify it. If local government fails, the State government must compel it to act, and if the local government cannot carry the burden, the State must itself meet its continuing obligation.” 303 A.2d 273 (1973).

The court also noted:

“Today, a system of public education which did not offer high school education would hardly be thorough and efficient. The Constitution's guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market.” Id. at 295.

The court next addressed the meaning of the education article in Abbott v. Burke II. It concluded that  “[w]hat a thorough and efficient education consists of is a continually changing concept,” 575 A.2d 359 (1990), and that “embedded in the constitutional provision itself, at least in its construction thus far by this Court, are various objectives and permissible outcomes-equality, uniformity, diversity, and disparity.” Id. at 367. The court also held that the requirement set forth in Robinson, that children must be provided with the educational opportunity necessary for contemporary citizenship and employment, means “poorer disadvantaged students must be given a chance to compete with relatively advantaged students.” Id. at 372. Following up on this concept, the court established that, “[a] thorough and efficient education requires such a level of education as will enable all students to function as citizens and workers in the same society, and that necessarily means that in poorer urban districts something more must be added to the regular education on order to achieve the command of the Constitution.” Id. at 403. Additionally, the court cautioned that the constitutional mandate did not just guarantee students a minimal, basic education, noting that “[h]owever desperately a child may need remediation in basic skills, he or she also needs at least a modicum of variety and a chance to excel.” Id. at 399.

In Abbott III, the court reiterated that for special needs districts “a thorough and efficient education – one that will enable their students to function effectively in the same society with their richer peers both as citizens and as competitors in the labor market – is an education that is the substantial equivalent of that afforded in the richer districts.” 643 A.2d 575 (1994).

In Abbott IV, the court held that the educational content standards prescribed by the legislature were a facially adequate definition of a constitutional thorough and efficient education. 693 A.2d 417 (1997). The court also specified that “[a]dequate physical facilities are an essential component of that constitutional mandate,” Id. at 437, further commenting that a failure to provide adequate facilities “is of constitutional significance – we cannot expect disadvantaged children to achieve when they are relegated to buildings that are unsafe and often incapable of housing the very programs needed to educate them.” Id. at 438. Finally, the court noted that “the right to a thorough and efficient education does not ensure that every student will succeed. It must, however, ensure that every child in New Jersey has the opportunity to achieve.” Id. at 443. The court further commented: “Our Constitution requires that public school children be given the opportunity to receive a thorough and efficient education. That constitutional vision irrefutably presumes that every child is potentially capable of attaining his or her own place as a contributing member in society with the ability to compete effectively with other citizens and to succeed in the economy. The wisdom giving rise to that vision is that both the child and society benefit immeasurably when that potential is realized.” Abbott IV, 693 A.2d 417 (1997)

After noting the importance of preschool in earlier iterations of the Abbott v. Burke case, in Abbott V in 1998, the Supreme Court of New Jersey directed the state to provide high quality, half-day preschool for all three- and four-year old children in the Abbott districts as a part of the educational program needed by children in such districts to achieve a constitutionally adequate education. Two years later, in Abbott VI, the court found that the state's use of community childcare providers, which were staffed by uncertified teachers and governed by weaker standards, violated the mandate for high quality preschool. The court clarified some of the components of high quality preschool that the state was required to assure, and ordered the state to eliminate disparities in quality between school district and community provider programs, establish substantive educational standards, and provide funding for outreach efforts.

In 2005, in Board of Educ. of City of Millville v. NJ Dept. of Educ., the court reaffirmed the state’s duty to ensure full funding for the Abbott preschool program but allowed the state to reallocate funding from other programs to the preschool program as long as the reallocation does not compromise other educational programs.

The School Funding Reform Act of 2008 (SFRA), mandates that the Abbott pre-K program be expanded to other districts. In Abbott XX, issued in May 2009, the state Supreme Court upheld the SFRA, citing the importance of high-quality preschool.

Prior to September 2008, New Jersey operated three pre-K programs:　

(1) the Abbott preschool program, which was mandated by the New Jersey Supreme Court's Abbott V decision for all children living in the state's 31 low-wealth school districts;

(2) the non-Abbott Early Childhood Program Aid (ECPA) program, which provided funding for 96 other districts in which 20 to 40 percent of children qualify for free or reduced-price lunch;

(3) The Early Launch to Learning Initiative which, established in 2004, allowed all non-Abbott districts to apply for funds to increase enrollment, extend program hours, or improve program quality.

In January 2008, the state enacted the School Funding Reform Act (SFRA), which, among many other things, changed the state’s pre-K programs. Essentially, the SFRA pre-K initiative combined the Abbott pre-K and ECPA programs (although SFRA removed those designations) and added a "universal" pre-K program.

Although SFRA removed Abbott and non-Abbott designations, the Abbott pre-K program and the Non-Abbott Early Childhood Aid program continue to be regarded as separate entities. 

During the 2009-2010 school year, the three programs, combined, served 27% of 4-year-olds and 18% of 3-year-olds.  The Former Abbott and Expansion Districts’ program has been rated an exceptionally high 9 out of 10 on the established quality indicators.  The Former ECPA Districts’ program and Former Early Launch to Learning Initiative Districts’ program rated an exceptionally high 8 out of 10 on the established quality indicators.

Former Abbott and Expansion Districts

As a result of a 1998 New Jersey Supreme Court decision, the largest and most intensive of New Jersey’s three state-funded preschool programs (formerly known as the Abbott Preschool Program) serves 35 school districts, each of which have at least 40% of children eligible for free or reduced priced lunch.  The state Department of Education funds the districts to provide the program to all 3- and 4- year-olds who wish to enroll.  They may contract with private child care centers or Head Start programs that meet state standards to provide services.

The Abbott preschool program is a full-day, full year program, required to operate 10 hours per day, 245 days per year. For 180 of those days, 6 hours of instruction (meeting Department of Education standards) must be provided with 4 hours of wraparound services (meeting Department of Human Services standards).　 The full 10 hours of the remaining 65 days are governed by DHS standards.

Former Early Childhood Program Aid Districts

The Non-Abbott ECPA initiative serves 96 other districts in which 20 to 40 percent of children qualify for free or reduced-price lunch.  Non-Abbott Early Childhood Program Aid districts may also contract with Head Start or private providers to offer services.

Providers offering the program for 4-year-olds must ensure that the program is at least a half-day long.  Wraparound screening/referral and support services are also required.

Former Early Launch to Learning Initiative (ELLI)

The Early Launch to Learning Initiative was established in 2004.  All non-Abbott districts could apply for funds to increase enrollment, extend program hours, or improve program quality.  Funding levels were determined by the length of program day and number of low-income 4-year-olds.

Beginning in the 2009-2010 school year, districts across all three programs received funding based on the School Reform Funding Act (SFRA) of 2008.  The Act’s funding formula generated a total budget amount for each district, within which districts built their respective 2009-2010 budgets.

According to the National Institute for Early Education Research (NIEER), New Jersey served 27% of 4-year-olds and 18% of 3-year-olds in the 2009-2010 school year.

Quality Standards

Former Abbott and Expansion Districts

The former Abbott program and its expansion districts met an exceptionally high 9 out of 10 benchmarks.

Teachers must have a Bachelor’s degree and specialized training in pre-K. The program limits the class size to 15 students and requires a ratio of 2 staff members to 15 students, exceeding NIEER’s requirements.

In addition, the program has screening and referral services, a monitoring and site visit program and provides at least one meal a day to participants.

The program does not require that teacher assistants have Child Development Associate degrees, failing only this NIEER benchmark.

Former Early Childhood Program Aid Districts

The former Early Childhood Program Aid districts met an exceptionally high 8 out of 10 benchmarks.

Teachers must have a Bachelor’s degree and specialized training in pre-K. The program limits the class size to 15 students and requires a ratio of 2 staff members to 15 students, exceeding NIEER’s requirements.

In addition, the program has screening and referral services, and a monitoring and site visit program.

The program does not require that teacher assistants have Child Development Associate degrees, and does not provide at least one meal a day to participants, failing these two NIEER benchmarks.

Former Early Launch to Learning Initiative Districts

The former Early Launch to Learning Initiative districts met an exceptionally high 8 out of 10 benchmarks.

Teachers must have a Bachelor’s degree and specialized training in pre-K. The program limits the class size to 15 students and requires a ratio of 2 staff members to 15 students, exceeding NIEER’s requirements.

In addition, the program has screening and referral services, and a monitoring and site visit program.

The program does not require that teacher assistants have Child Development Associate degrees, and does not provide at least one meal a day to participants, failing these two NIEER benchmarks.

Districts must participate in an annual self-assessment and validation system that evaluates program implementation and progress on program improvement plans.　

Districts' operational plans must be based on a needs assessment of its students, programs, and child care providers that includes demographics, facilities, outreach and recruitment, parent education and involvement, and transportation.

New Jersey Statutes Annotated