New Jersey - Abbott v. Burke (1998)

New Jersey is the first, and to date, only state in the nation to launch a court-mandated public preschool program.  In the 1998 Abbott v. Burke (Abbott V)⁹ school funding case, the New Jersey Supreme Court ruled that the state had to provide all three- and four-year-old children in thirty high poverty school districts – now known as the Abbott districts – with a “well-planned, high quality” preschool program, as part of its constitutional obligation to provide every child with a “thorough and efficient” education.¹⁰

Article VIII of New Jersey’s constitution specifically guarantees a “thorough and efficient education” to children ages five to eighteen.¹¹ Nonetheless, through a combination of statutory interpretation and constitutional analysis, the Court concluded public preschool programs could be considered as part of the state’s constitutional obligation to ensure low-income and disadvantaged children arrive in kindergarten ready to learn and make year-to-year progress through elementary school and beyond.

Two key trends proved central to the Abbott V ruling: the standards-based reform movement and new research on early childhood development showing how disadvantaged children could benefit from high quality preschool education.

The New Jersey Supreme Court embraced standards-based reform a year prior to the preschool ruling, in the  Abbott IV (1997)¹² decision. In that decision, the justices accepted New Jersey’s curriculum standards as a way to define a “thorough and efficient” education, as mandated by the state constitution. At the time, the Court noted that with the adoption of such standards, “New Jersey joins a trend in favor of a standards-based approach to the improvement of public education.”¹³

The standards framework, in turn, set the stage for the importance of the new research on the power of preschool education. The standards framework assumes that learning is cumulative and children progress in skills and knowledge from year to year. Thus, children entering kindergarten are expected to master the kindergarten standards during their kindergarten year. Indeed, under the Supreme Court’s Abbott IV ruling, the Constitution requires that they have the opportunity to do so. Accordingly, children must start kindergarten with the skills needed to learn.

The plaintiffs in Abbott V presented the Court with early childhood education research showing that many children, most notably those from low-income backgrounds, lack the skills needed to attain the standards. The evidence showed these children begin school up to two years behind their more advantaged peers, especially in verbal and literacy skills. The studies also revealed that a high-quality preschool program could provide those skills and prepare the children to learn.  Without intervention during the preschool years, low-income children could remain at a significant disadvantage throughout their public education. Thus, public preschool appeared as a logical and cost-effective remedial action the state could take to give all children access to the constitutionally mandated “thorough and efficient” education.

Conversely, without “well-planned, high quality” preschool, the Court in Abbott V concluded that many low-income children would be unable to make the year-to-year progress and meet the new standards that guaranteed an adequate education.

Background to Preschool Mandate

The Abbott preschool ruling grew out of thirty years of litigation that challenged New Jersey’s system of school finance. Attorneys representing children in New Jersey’s lowest-income school districts charged that the state’s use of property taxes to pay for public education created enormous inequities, with inner-city schools starved for adequate resources to educate their students. Plaintiffs alleged the state’s finance system failed to provide the poorest districts with the resources necessary for students to get a “thorough and efficient” education under the education clause of the New Jersey constitution.

The first decision in Robinson v. Cahill,¹⁴ was issued back in 1973. The New Jersey Supreme Court has since issued fourteen additional decisions relating to school funding and the rights of children in high poverty school districts – four others in Robinson and ten more in Abbott v. Burke.   The Abbott cases picked up where Robinson left off, focusing on the details of the state’s funding formula, as it evolved under education reform. 

The 1998 Abbott V decision mandated not only preschool but also other substantial improvements for New Jersey’s urban school districts, including:

• standards-based education driven by state curriculum standards
• whole school reform at the school level
• new and rehabilitated facilities
• needs-based supplemental (at-risk) programs to "wipe out student disadvantages,” such as a family support team, social and health services, increased security measures, alternative education programs, school-to-work and college-transition programs, summer school, after-school, supplemental nutrition programs and improved parent participation

The specific directive for preschool had its genesis many years earlier, in the Abbott II (1990)¹⁵ decision. In this decision, the Court upheld an administrative law judge’s extensive findings and conclusions that the education offered to children in the Abbott districts was grossly inadequate, and therefore, unconstitutional by every measure when compared to the education offered in affluent school districts. One of the key findings was that “[m]any poor children start school with an approximately two-year disadvantage compared to many suburban youngsters. This two-year disadvantage often increases when urban students move through the educational system without receiving special attention.”¹⁶

The Court in Abbott II adopted a two-part approach for remediating the constitutional deprivation. First, the Court found that students in low-income school districts were entitled to basic “foundation aid” equal to the amount spent in suburban districts where children were more successful in school.  Second, the Court found children in low-income school districts were also entitled to additional aid to meet the “special educational needs …to address their extreme disadvantages”¹⁷ arising from the conditions of urban poverty. The Court had already defined a “thorough and efficient” education guaranteed by the state Constitution as one that would enable all students to function as citizens and workers in the same society.¹⁸ But low-income students in the impoverished districts experienced such  “disadvantages,” the justices found, that the state must provide additional interventions in the form of supplemental programs and services designed to “wipe out” those disadvantages “as much as a school district can.”¹⁹

These supplemental programs, according to the Court, must be based on the needs of the children and their schools, over and above the foundational or regular educational program, and assure that the urban school children can compete with their more advantaged peers upon graduation.  The Court left the specific determinations regarding the need for, and cost of, such supplemental programs to the legislature.  However, the Court took notice of the evidence in the trial record on the benefits of preschool education: “an intensive pre-school and all-day kindergarten enrichment program [would help] to reverse the educational disadvantage these children start out with.”²⁰

Four years later, in Abbott III (1994),²¹ the Supreme Court once again declared the state’s new school funding law unconstitutional, but did not order a specific remedy in this ruling.  The Court did, however, reaffirm the state’s obligation to study and fund programs to address the special needs of at-risk students. In this ruling, the justices also noted that both plaintiff’s and the state’s expert witnesses had identified preschool as a needed supplemental program.²²

In 1996, in response to the Abbott III ruling, New Jersey’s legislature passed the Comprehensive Education Improvement and Financing Act (CEIFA),²³ a broad-based attempt to change the state’s method of school finance. CEIFA presented a formula for foundation aid for basic public education. In addition, this law created two funding formulas aimed at addressing the Supreme Court’s concern for programs designed to meet the unique needs of low-income students:  Demonstrably Effective Program Aid (DEPA) to provide funds for supplemental programs for at-risk students in grades K-12, and Early Childhood Program Aid (ECPA) to provide funds for full-day kindergarten and preschool programs for low-income three- and four-year-olds.²⁴

In Abbott IV (1997),²⁵ the Supreme Court reviewed CEIFA and found it to be constitutional on its face because of the state’s adoption of curriculum standards as the definition of a constitutionally adequate education.²⁶ However, the Court further ruled that CEIFA was unconstitutional as applied to the urban districts, because it failed to provide Abbott districts with sufficient funds to enable students in those districts to meet the new standards. The Court ordered the state to provide additional foundation aid to the Abbott districts, on par with the amount spent in successful suburban school districts. 

In addition, the Court found the funding formulas in both DEPA and ECPA were unconstitutional because they were not based on the actual needs of the children in the Abbott districts.  That year, the Court also concluded that the situation required the imposition of a court-ordered remedy, following years of inaction by the legislature, to correct the deficiencies and provide every child with the constitutionally mandated “thorough and efficient” education. Accordingly, the Supreme Court remanded the matter to a Superior Court judge to hold an evidentiary hearing and make recommendations for funding the supplemental program and facility needs of the Abbott districts. The Court directed the state to study the special educational needs of children in the Abbott districts, identify supplemental programs to address those needs, and develop a plan to implement those programs. 

The Remand Hearing

During the remedy hearing, both the state and the Abbott plaintiffs presented evidence of the need for a preschool program.  One of the state’s experts, Dr. Robert E. Slavin of Johns Hopkins University, testified that children who attend full-day preschool beginning at age three were more likely to have success in school.²⁷ Another state witness, an employee of the department of education, testified that research supported the provision of a half-day program for four-year-old children.

Plaintiffs’ expert, Dr. Steven Barnett  of Rutgers University, provided extensive testimony on research on the benefits of high quality preschool programs and the components of a high quality program. Based on this research, Dr. Barnett recommended that the state provide a full-day preschool program for all three- and four-year-olds in the Abbott districts.²⁸

A special master appointed by the remand court, Dr. Allan Odden of the University of Wisconsin-Madison, also recommended a full-day program for all three- and four-year olds.²⁹

Both the state and plaintiffs recommended collaboration between the Abbott districts and existing community childcare programs as a way of implementing the preschool program.

The judge handling the remand hearing eventually issued a recommended decision³⁰ to the Supreme Court. He supported a state mandate to fund full-day preschool for all three- and four-year-old children in the Abbott districts,³¹ a recommendation that the Supreme Court modified in part.

Abbott V, the Landmark Ruling

In Abbott V, the Supreme Court directed the state to provide “well-planned, high quality” half-day preschool programs for all three- and four-year old children in the Abbott districts. The Court found high quality preschool was part of the educational program needed by children in such districts to achieve a constitutionally adequate education. 

Noting “no fundamental disagreement over the importance of pre-school education,”³² the Court directed the state to provide a program for both three- and four-year-olds because “evidence demonstrates that the earlier education begins, the greater the likelihood that students will develop the language skills and the discipline necessary to succeed in school.”³³ The Court mandated a half-day preschool program “as an initial reform,”³⁴ leaving open the possibility that a full-day program would be required, based on the needs of Abbott children and families, once preschool was fully integrated into the Court’s broader directive for whole-school reform in the Abbott districts.³⁵

The Supreme Court grounded its preschool directive in early childhood research, finding that “[e]mperical evidence strongly supports the essentiality of pre-school education for children in impoverished urban school districts.”³⁶ The Court also recognized the research-based link between high quality preschool education and later success in achieving a constitutionally adequate education, which the Court had equated with attainment of the state’s learning and curriculum standards: 

This Court is convinced that pre-school for three- and four-year-olds will have significant and substantial positive impact on academic achievement in both early and later school years.  As the experts described, the long-term benefits amply justify this investment. Also, the evidence strongly supports the conclusion that, in poor urban school districts, the earlier children start pre-school, the better prepared they are to face the challenges of kindergarten and first grade. It is this year-to-year improvement that is a critical condition for the attainment of a thorough and efficient education once a child enters regular public school.³⁷

The Court did not rule that Abbott school children have a constitutional right to preschool based on the education clause, thereby avoiding having to overcome the language in the New Jersey Constitution granting a right to public education to children between the ages of five and eighteen.  Rather, the Court based its preschool directive on (1) the Commissioner’s recommendation during the remand hearing for high quality preschool for all four-year olds residing in the Abbott districts, together with his authority under CEIFA to restructure curriculum in Abbott districts, and (2) the Legislature’s requirement in CEIFA for funds for preschool for four-year-olds in all Abbott districts and three-year-olds in most Abbott districts. The Court characterized that statutory requirement as “a clear indication that the Legislature understood and endorsed the strong empirical link between early education and later educational achievement.”³⁸ While resting its decision on the Commissioner’s authority and on statutory interpretation, the Court nonetheless found that “because the absence of such early educational intervention deleteriously undermines educational performance once the child enters public school, the provision of pre-school education also has strong constitutional underpinning.”³⁹

The Court’s ruling was accompanied by a strong directive to the Commissioner to ensure that all Abbott districts implement half-day preschool for three- and four-year-olds as “expeditiously as possible,”⁴⁰ or by no later than September 1999. To that end, the Court directed the state to adequately fund preschool programs in the Abbott districts and to ensure that transportation and other services, support, and resources related to the preschool program were provided.

Additionally, the Court directed the State to make construction of preschool facilities an important priority to ensure the preschool program would be fully implemented.⁴¹ The Court also recognized the need for the state to use existing childcare programs and facilities by authorizing “cooperation with or the use of existing early childhood and day-care programs in the community,”⁴² as a means of implementing the preschool program.  

Enforcement of the Abbott Preschool Mandate

In Abbott VI (2000),⁴³ plaintiffs returned to the Supreme Court arguing that the state had failed to comply with the Court’s directive in Abbott V for “well-planned, high quality preschool.” Specifically, plaintiffs alleged that the state’s use of community childcare centers staffed by uncertified teachers and governed by department of human services daycare standards, as well as its failure to develop developmentally appropriate curriculum guidelines, violated the “high quality” component of the Court’s order.

The Court affirmed that only a “high quality” program would satisfy its order. Specifically, the Court accepted  “a core understanding” put forward by the plaintiffs “that the needs of at-risk children can be met only by quality preschool programs.”⁴⁴ It acknowledged the state’s need to use existing resources by partnering with community programs already serving three- and four-year-olds, but ordered the state to eliminate disparities in quality between school-based and community programs.

The Supreme Court ordered the department of education to ensure the following components of a high quality program for all Abbott preschool programs: (1) lead teachers with bachelor’s degrees and an early childhood certification (teachers lacking such credentials were granted a four-year grace period to obtain them); and (2) class size of no more than fifteen. Additionally, the Court ordered the department of education to make funding available to local school districts for concerted outreach to expand enrollment in the preschool program.

In support of the enforcement order, the Court stated:

The record in Abbott V overwhelmingly demonstrated that substantive, quality early-childhood education does make a difference, and that poor urban youngsters do better academically when they have participated in enriched preschool programs from an early age. Our constitution requires a thorough and efficient education for all of our children because we believe that educated citizens are better able to participate fully in the economic and communal life of the society in which we all live. Quality preschool, whole school reform, adequate, secure school buildings in which to learn, health and social services, and other programs as needed – those are the elements of a commitment to the Abbott children, to their future.⁴⁵

Two years later, in Abbott VIII (2002),⁴⁶ plaintiffs again challenged the state’s implementation of the preschool program. In this ruling, the Court ordered the Commissioner of Education to finalize preschool curriculum guidelines; develop district-level plans to boost preschool enrollment whenever it failed to meet the Department’s goals; include Head Start programs in the Abbott preschool program; provide reasonable funds to help Head Start and other community providers meet the high quality standards for the Abbott program, including funds to help raise teacher salaries and retain qualified staff; and base budget decisions on a thorough assessment of children’s actual needs, rather than an arbitrary, predetermined per-pupil amount. 

In Board of Educ. of City of Millville v. NJ Dept. of Educ. (2005),⁴⁷ the New Jersey Supreme Court reaffirmed the state’s duty to ensure full funding for the Abbott preschool program. The Court ruled that the state could require school districts to reallocate funding from other programs to the preschool program only if the state assumed responsibility for making up shortfalls in other programs, unless it could demonstrate availability of district funds not needed by the other programs. In order to direct reallocation of district funds to make up for shortfalls caused by the state’s preschool funding formulas, the Court found the Commissioner of Education must first prove that the reallocation will not compromise any of the district’s educational programs.