Abbott v. Burke and the New Jersey Courts That Ordered School Money

In July 1976, New Jersey did something no American state had done before or has done since. Its public schools were shut down by court order. It was summer, so the closure was more symbolic than practical; summer programs stopped, and the state's education system briefly had no legal authority to spend money. The New Jersey Supreme Court had told the legislature, in a case called Robinson v. Cahill, that the way the state paid for schools violated a single clause of its constitution, the one that requires a "thorough and efficient" system of free public schools. The legislature had passed a new school law but not the money to pay for it. So the court barred public officials from spending funds on schools until they did. Within days, lawmakers passed New Jersey's first state income tax, and the schools reopened. That was the opening act. The long second act, which began five years later with a lawsuit on behalf of children in four struggling cities, would run for more than three decades and become the most ambitious school funding case in American history. It was called Abbott v. Burke.

In short: In Abbott v. Burke, New Jersey's Supreme Court ruled again and again that the state was failing children in its poorest urban districts and ordered funding parity with wealthy suburbs, universal preschool and new school buildings. The orders brought real gains, especially in early childhood education, along with political backlash and costly mistakes. The case shows both the power and the limits of courts in school finance.

A clause from 1875

New Jersey's education clause dates to a constitutional amendment adopted in 1875, in the years after the Civil War when many states were writing public schooling into their founding documents. It says the legislature shall provide for the maintenance and support of 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. For about a century, few people thought it said anything specific about money.

That changed after the U.S. Supreme Court's 1973 ruling in San Antonio v. Rodriguez closed the federal courts to school funding claims. The very next month, the New Jersey Supreme Court decided Robinson v. Cahill, holding that the state's heavy reliance on local property taxes, which produced large differences in spending per pupil, failed the state constitution's promise. New Jersey became an early example of a state court reading its own constitution to do what the federal courts would not.

The income tax that followed in 1976 was supposed to fix the problem. It did not, at least not for the poorest cities. Much of the new state aid flowed in ways that helped suburban districts as much as or more than urban ones, and the gap between rich and poor districts persisted.

Four cities and a lawyer

In 1981 the Education Law Center, a Newark-based advocacy group, filed a new suit on behalf of twenty children in four cities: Camden, East Orange, Irvington and Jersey City. The lead plaintiff was a Camden student named Raymond Abbott; the defendant was the state's education commissioner, Fred Burke. The center's lead lawyer was Marilyn Morheuser, a former nun and civil rights activist who had come to the law late in life and who would devote the rest of her career to the case.

In its first ruling in 1985, the court sent the case to an administrative law judge to build a full factual record. That judge's hearings documented in detail what the children in those cities were missing: crowded and decaying buildings, outdated materials, few science labs, limited art and music, and far less money per student than in the state's wealthy suburban districts, all while the urban districts faced the concentrated effects of poverty.

The ruling that set the terms

In 1990 the court issued the decision that defined the case for a generation. The funding law, it said, was unconstitutional as applied to poorer urban districts. Because those districts could not raise enough money on their own and because their students had greater needs, the state had to ensure that their spending on regular education was substantially equal to that of the wealthiest suburban districts, and it had to provide additional money for programs that would address the effects of poverty. The ruling applied first to twenty-eight districts; the number of so-called Abbott districts later rose to thirty-one.

Governor Jim Florio, a Democrat, and the legislature responded quickly with a new funding law and a large tax increase in 1990, partly to pay for school aid and partly to fill budget holes. The backlash was ferocious. Suburban voters who already paid some of the highest property taxes in the country felt they were being asked to pay twice. Democrats lost control of the legislature in 1991. Florio lost his re-election bid in 1993 to Christine Todd Whitman, a Republican who had campaigned on cutting taxes. The lesson many politicians took from those years was that school funding reform could end careers.

Preschool, buildings and the high-water mark

The court did not let go. Through the 1990s, it rejected one state funding plan after another as inadequate for the urban districts. In 1997 it ordered immediate parity funding for those districts. In 1998, in the ruling often called Abbott V, it went further than any American court had gone. It required the state to provide high-quality preschool for all three- and four-year-olds in the Abbott districts, to carry out whole-school reform programs, to fund supplemental services, and to pay for repairing and building school facilities.

The preschool order became the case's most celebrated legacy. Districts had to provide full-day programs with certified teachers, small classes and a curriculum, and many contracted with community child care providers who had to meet the same standards. Researchers who followed children from those programs reported lasting gains in reading and math into the elementary grades and reductions in grade repetition and special education placements. Other states looking to expand preschool began studying New Jersey's model.

The facilities order was more troubled. The state created an agency to manage a huge school construction program, and it ran into cost overruns, delays and management scandals that state investigators later documented. Critics pointed to it as proof that court-driven spending invited waste. Even supporters of the case conceded that the building program was badly run in its early years. It was later reorganized, and many new schools were eventually built in cities that badly needed them.

A state of small districts

To understand why New Jersey's fight was so intense, it helps to know how the state is organized. New Jersey is small and dense, but it is divided into hundreds of municipalities and hundreds of school districts, many of them serving a single town. That pattern, a source of local pride that New Jerseyans call home rule, means wealth and poverty sit very close together. A family can drive from a district that spends generously on every student to one that cannot keep its roofs from leaking in a matter of minutes.

Home rule also means property taxes do much of the work of paying for schools, and New Jersey's property taxes are among the highest in the country. That made every school funding decision a property tax decision. Suburban homeowners already paying large bills were wary of any plan that seemed to send their money elsewhere, while the urban districts had little property wealth to tax at all. Commercial property had moved out to the suburbs over the decades, along with many middle-class families, leaving cities such as Camden and Newark with high needs and a thin tax base.

The Abbott court did not try to change that structure. It did not order districts merged or property taxes equalized. It ordered the state to fill the gap for the poorest urban districts through state aid. That choice kept the remedy within the court's reach, but it also meant the state budget, and the income tax that funded it, carried the full weight of the case. Every governor who followed had to decide how much of that weight to carry.

The other side's argument

Critics of Abbott made several arguments, and some of them have weight. The first was democratic: judges, not elected officials, were effectively writing the state budget and ordering tax increases, which they saw as an overreach of judicial power. The second was about results. Despite billions of dollars over many years, achievement gaps in many former Abbott districts remained large, and some districts struggled with management problems. The third was about fairness to other districts. Working-class and rural districts that did not qualify as Abbott districts, some of them poor but not urban, argued that they had been left behind while a fixed list of cities received special treatment. That critique gained force as demographics changed and some suburbs grew poorer.

These arguments deserve answers. On judicial power, the court acted only after the legislature failed for years to fix a problem the state constitution required it to fix; it repeatedly invited the legislature to design its own solution. On results, the evidence is more positive than critics allow. Graduation rates and early learning in several Abbott districts improved, and the preschool gains were among the best documented in the country, though progress was uneven and the remaining gaps are real. On fairness to other districts, the critics were partly right, and the state eventually responded.

A new formula, and a governor who cut it

In 2008, under Governor Jon Corzine, a Democrat, New Jersey passed the School Funding Reform Act, a weighted formula that sent extra money to students in poverty and English learners wherever they lived, rather than only to the listed Abbott districts. The next year, the state Supreme Court found that the new formula met the constitution, provided the state actually funded it, and released the state from many of the specific Abbott remedies.

That condition mattered almost immediately. Facing a budget crisis, Governor Chris Christie, a Republican, cut school aid sharply in 2010, leaving the formula far short of full funding. The Education Law Center went back to court. In 2011 the court ordered the state to restore full formula funding to the former Abbott districts, though not to other districts, reflecting the narrow scope of the case before it. Christie criticized the court's role in school funding throughout his tenure.

In the years since, the state has phased in increases aimed at reaching full funding under the formula, while adjusting aid for districts that had been overfunded relative to enrollment. Debates continue over the formula's weights, the cost of special education and how property taxes, which remain among the highest in the nation, fit into the picture.

What a court can and cannot do

Abbott v. Burke is often cited by both sides of the school funding debate, which is a sign of how complicated its lessons are. Here is my reading. The court could force money onto the table, and that money bought real things: preschool seats, smaller classes, new buildings, services for children carrying the weight of poverty. It could not, by itself, make every dollar well spent, and it could not build the political support that lasting reform needs. When the legislature finally wrote a formula of its own, in 2008, it was more durable than anything the court had imposed, because it was the legislature's.

There is also a lesson for progressives about tax politics. The Florio backlash is a reminder that how a reform is paid for, and who is asked to pay, can decide whether it survives. Asking middle-class suburban homeowners to absorb large increases at once, without a clear story about what they get in return, gave opponents an easy target. Funding schools fairly through a progressive income tax, phased in, with visible results, is harder to campaign against.

And the case is a reminder of who the plaintiffs were: children. Raymond Abbott and the other students named in the first complaint grew up long before most of the remedies arrived. Other children in Camden, Newark, Paterson and Trenton, and later in rural and suburban districts serving poor families, benefited from a fight they had not started. Parents, teachers and lawyers who kept it going for decades did so knowing they might never see the results in their own families.

What you can do

School funding cases are decided by state courts, but the money only arrives when legislatures and governors act.

1. Find your state legislators and ask about the formula. Ask whether your state fully funds its own school formula and how it weights students in poverty. The representative lookup lists their phone numbers and contact forms.
2. Track the courts. School funding cases are in state courts, but federal rulings on education and civil rights shape what states can do. Court Watch covers the Supreme Court's term.
3. Support early childhood programs. Preschool is the part of Abbott with the strongest evidence behind it. Find education and child care advocacy groups in your state through the organizations directory.
4. Follow the courts and the cases. Our page on the courts collects coverage of judicial decisions that shape public policy, from state supreme courts to the federal bench.