School choice activists hope that they will be able to alter the future of education finance litigation through a new state lawsuit in New Jersey.
The suit, which was filed this month in Newark, seeks court-approved vouchers that could be redeemed at public or private schools—including religious ones—as a remedy to aid students in schools where large percentages of students fail to meet state standards.
A legal victory could change the course of litigation in New Jersey and other states where plaintiffs have argued that states inadequately finance their schools.
“It immediately allows students to leave failing schools for good ones, and at the same time creates pressure for accountability for public schools,” Clint Bolick, the president for the Alliance for School Choice, said of the plan being sought. His Phoenix-based legal-advocacy group is supporting the New Jersey lawsuit.
But the suit faces significant legal obstacles, the chief of which is that the state constitution guarantees the right to a “thorough and efficient system of free public schools,” contends a lawyer who has been involved in the 33-year-old effort to increase aid for public schools in New Jersey.
“It’s a dramatic political statement, but it’s not … a winning legal case,” said Paul L. Tractenberg, the founder and the chairman of the Education Law Center, the Newark-based legal-advocacy organization that has successfully sued the state over how it finances its schools.
“There’s never been a court decision—either state or federal—that has recognized a constitutional right to public funding for a private choice” of education, said Mr. Tractenberg, who is also a professor of law at Rutgers Law School-Newark.
Mr. Bolick said that the New Jersey lawsuit would be a “national test case” for voucher supporters’ strategy to redirect legal efforts by education advocates who use the education clauses in state constitutions to win increased financing for public schools.
The suit, which targets the state department of education, doesn’t try to intervene in the ongoing Abbott v. Burke school finance case. Instead, the plaintiffs are seeking to help 60,000 students attending 97 schools choose schools they believe will better help them meet state standards.
Per-Pupil Aid
In those students’ current schools, either half the students are failing to meet state standards in reading and mathematics, or 75 percent of them fall below state standards in one of those subjects. Not all of the schools are in districts that are under court supervision in the state’s Abbott school finance case.
The new suit, Crawford v. Davey, asks that students in those schools be given the per-pupil allotments their districts receive for them and be allowed to use that money to pay tuition at a public or private school of their choice.
The request is “in essence money relief,” rather than judicial management of issues handled by school boards and other elected policymakers, said David Schoenbrod, a law professor at the New York Law School in New York City.
“The remedy sought here does not require a judge to administer a government program, and that to me is a virtue,” said Mr. Schoenbrod, who also is a senior fellow at the Cato Institute, a Washington-based think tank that takes a libertarian stance on policy questions.
But implementing school choice isn’t as easy as awarding grants to individuals, said one lawyer involved in school finance litigation. In the long-established voucher programs in Milwaukee and Cleveland, state and local officials are actively involved in overseeing how the programs are run and whether schools that receive the voucher money meet civil rights laws and educational criteria.
“You can’t just give money to people and let them do whatever they want with it,” said Michael A. Rebell, who represented plaintiffs in a case seeking additional financing for New York City public schools. “It’s government money.”
What’s more, Mr. Tractenberg said, school officials would have to assure that students receive an adequate education in the schools of their choice, meaning private schools would need to participate in the state’s accountability program to meet the criteria for successful schools in the lawsuit.
“Will private school be willing to subject themselves [to state accountability]?” Mr. Tractenberg said. If they weren’t willing, he added, how would a court know whether the vouchers actually remedied the problems of the public schools?
Preschool Precedent
Mr. Bolick, who spearheaded litigation that resulted in the 2002 U.S. Supreme Court decision declaring vouchers for religious schools to be permissible under the U.S. Constitution, said New Jersey is an ideal candidate to win a remedy favoring school vouchers.
The state supreme court has ruled in favor of the plaintiffs in a series of rulings in the long-running Abbott litigation. Through that case, the New Jersey high court has required the state to use specific curricula, undertake construction projects, and provide preschool opportunities.
Plaintiffs in Kentucky, Montana, and other states have won cases declaring those states’ school finance systems inadequate, which in turn has led to major school spending increases. (“States on Ropes in Finance Lawsuits,” Dec. 8, 2004.)
While the New Jersey voucher case doesn’t seek to intervene in the Abbott case or change the court-ordered efforts in the 30 districts that are supervised under the case, it does rely on court precedent that allows those districts to offer court-ordered preschool services in private settings.
“It’s essentially a voucher for use in private preschools … because the court recognized the need for an immediate remedy,” Mr. Bolick said in an interview. “That’s exactly what we’re asking for here.”
Three New Jersey-based groups filed the suit in the Superior Court of New Jersey in Newark on July 13. The Alliance for School Choice is providing legal assistance for the groups, which are the Black Ministers’ Council of New Jersey, in Orange, the Latino Leadership Alliance, in New Brunswick, and Excellent Education for Everyone, which has offices in Camden and Newark.
Lucille E. Davy, the state’s acting commissioner of education, said in a statement that she would not comment on the litigation, in which she is named as the defendant. But she added that she doesn’t think vouchers would fix failing schools.
“I think our job is to make sure that the public schools offer all students the kind of education they need and deserve if we expect them to be productive citizens in the 21st century economy,” she said.
