Hope for Children Trapped in Failing Schools: The Promise of Crawford v. Davy

Abstract

On October 4, 2007, a trial level court in New Jersey dismissed Crawford v. Davy, a class action lawsuit filed on behalf of 60,000 schoolchildren throughout the state seeking the court's authority to leave schools that fail to educate their students. By filing suit, plaintiff schoolchildren had hoped to be transferred to an alternative successful public or private school utilizing their pro rata share of state and local school funds to subsidize the transfer. Now, the dismissal of Crawford consigns these children to poor inadequate neighborhood schools indefinitely. If the dismissal of Crawford v. Davy is not reversed on appeal, it will not only extinguish the hope of plaintiff schoolchildren to receive an equal and adequate educational opportunity, but could threaten the right of a thorough and efficient education guaranteed by the State Constitution and reverse gains achieved over the past 40 years in New Jersey's education jurisprudence. This article places Crawford in the context of the state's enduring legal struggle to equalize educational opportunities and discusses its claims and purposes in relation to that history. The article then addresses the significance of the Crawford dismissal on the state's legal precedents, especially rulings in the on-going Abbott v. Burke equity funding litigation. Finally, the article concludes with a prediction of the impact that Crawford's dismissal may pose for the larger equity/adequacy litigation movement playing out across the country. For the moment, the hope of 60,000 plaintiff schoolchildren is diminished. Only time and New Jersey's appellate courts will dictate whether their hope for an equal and adequate education shall survive.

He is co-counsel for the plaintiffs in Crawford v. Davy with Patricia Bombelyn of Perez & Bombelyn P.C., in New Brunswick, New Jersey.

Notes

¹See generallyCrawford v. Davy, Docket No. C-137-06, slip op. and order (N.J. Super. Ct. Ch. Div. Oct. 4, 2007).

²Paul L. Tractenberg, The Evolution and Implementation of Education Rights under the New Jersey Constitution of 1947, 29 Rutgers L.J. 827, 832 fn. 17 (1998). However appropriations to support public schools were not authorized until 1829. See Robinson v. Cahill, 62 N.J. 473, 506 (1973) (citing I. Myers, The Story of New Jersey (1945), pp. 447–450).

³N.J. Const. of 1844, Art. IV, § 7, ¶ 6.

⁴N.J. Const. of 1844, Art. IV, § 7, ¶ 6 (amended 1875). Similar education clauses appear in numerous state constitutions. For example, the “thorough and efficient” language also appears in the constitutions of Maryland, Minnesota, New Jersey, Ohio, Pennsylvania, and West Virginia. See Martin R. West and Paul E. Peterson, The Adequacy Lawsuit: A Critical Appraisal, p. 7.

⁵N.J. Const., Art. VIII, § 4, ¶ 1.

⁶The T&E clause has been invoked to uphold a statute permitting free transportation of children to remote public and private schools, see West Morris Regional Bd. of Educ. v. Sills, 58 N.J. 464 (1971); to authorize sending students across district boundaries and merging school districts to avoid racial imbalance or segregated schools, see Jenkins v. Morris Township School District, 58 N.J. 483 (1971); to direct an increase in a particular school district's annual school budget to achieve an adequate education, see Elizabeth Board of Education v. Elizabeth City Council, 55 N.J. 501 (1970); and to authorize a local board of education to unilaterally alter a collective bargaining agreement to achieve racial diversity among school administrators in response to race riots in the city of Newark. See Porcelli v. Titus, 108 N.J. Super 301 (App. Div. 1969). Most notably (and more recently) the clause was invoked to declare an individual fundamental right to an education of a certain quality and to order billions of dollars in increased appropriations for public schools as well as specific school-based policy reforms. See generally Robinson v. Cahill, 62 N.J. 473 (1973) and Abbott v. Burke, 119 N.J. 287 (1990). It is no surprise therefore that the New Jersey Supreme Court has explicitly acknowledged that “the education of a child has always been of supreme importance and an ideal which has long been required in our State.” State v. Vaughn, 44 N.J. 142, 145 (1965).

⁷ Landis v. Ashworth, 57 N.J.L. 509, 512 (1895) (involving challenge to school tax levied on a local school district). The New Jersey Supreme Court cited the T&E clause in two earlier decisions, Pierce v. Union District School Trustees, 46 N.J.L. 76 (1884) (ordering public school to admit Black children under school law entitling all children between the ages of 5 and 18 to free public school), and Kimball v. Hendee, 57 N.J.L. 307 (1894) (affirming the status of a de facto board of education, composed of persons actually elected as school trustees at a school meeting, despite action of the county superintendent, in appointing other trustees, upon the supposition that the election was illegally conducted). But Landis is the first instance in which the Supreme Court gave meaning to the T&E clause.

⁸ Robinson v. Cahill, 62 N.J. 473, 513 and 515 (1973) (Robinson I).

⁹ Abbott v. Burke, 149 N.J. 145, 166 (1997) (Abbott IV) (citing Abbott v. Burke, 100 N.J. 269, 280-81 (1985) (Abbott I) and Robinson v. Cahill, 62 N.J. 473, 515 (1973)).

¹⁰ Id. at 198.

¹¹ Robinson v. Cahill, 62 N.J. 473, 519 (1973) (Robinson I).

¹² Id. at 520–521. Evidently the Court in Robinson I was sensitive to issues of justiciability and separation of powers that judicial review of legislative funding schemes necessarily implicated.

¹³ Robinson v. Cahill, 63 N.J. 196, 198 (1973) (Robinson II).

¹⁴ Robinson v. Cahill, 67 N.J. 35, 36-37 (1975) (Robinson III).

¹⁵ Id. at 37–38.

¹⁶ Robinson v. Cahill, 69 N.J. 133, 147 (1975) (Robinson IV).

¹⁷ Id. at 467.

¹⁸ Abbott v. Burke, 100 N.J. 269 (1985).

¹⁹ See Abbott v. Burke, 477 A.2d 1278, 1979 (NJ App. Div. 1984) and its progeny.

²⁰ Abbott v. Burke, 119 N.J. 287, 385 (1990) (Abbott II).

²¹ Id. at 388.

²² Abbott v. Burke, 136 N.J. 444, 446–47 (1994) (Abbott III).

²³ Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV).

²⁴ Id. at 224–26.

²⁵ Abbott v. Burke, 153 N.J. 480, 493 (1998).

²⁶ Abbott v. Burke, 163 N.J. 95 (2000); Abbott v. Burke, 180 N.J. 444 (2004); Abbott v. Burke, 181 N.J. 311 (2004).

²⁷ Abbott v. Burke, 164 N.J. 84 (2000).

²⁸ Abbott v. Burke, 170 N.J. 537 (2002).

²⁹ Abbott v. Burke, 177 N.J. 578 (2003).

³⁰Jonathan Kozol, Savage Inequalities: Children in America's School, p. 172.

³¹ Id.

³²Courting Failure, Eric A. Hanushek, ed., Williamson M. Evers and Paul Clopton, High-Spending, Low-Performing School Districts, pp. 133-34.

³³ Id.

³⁴ Id. In fact, New Jersey “has been the top spender nearly every year since 1990.” Id.

³⁵ Abbott v. Burke, 119 N.J. 287, 394 (1990) (Abbott II).

³⁶It is not surprising that there is no mention of vouchers or school transfers in the Abbott litigation, either in the proceedings at the State Supreme Court or below at the administrative level. Although the plaintiffs were schoolchildren, the type of remedies sought in Abbott (primarily equalized funding) inured first and foremost to the benefit of educational bureaucracies that were not providing a thorough and efficient education in the first place—the school districts. A voucher or school transfer remedy would have benefited the economic interests of those institutions far less.

³⁷See generally Crawford v. Davy, Docket No. C-137-06, first amended complaint (N.J. Super. Ct. Ch. Div. Jan. 12. 2007). Technically the complaint in Crawford asserts four counts or legal causes of action because the denial of equal protection is alleged separately under the 14th Amendment and the New Jersey State Constitution. Id.

³⁸Plaintiffs' Complaint does not encompass every school where not all students demonstrate CCCS; rather Plaintiffs' Complaint embraces the 96 worst performing schools in New Jersey where the failure to demonstrate proficiency is the norm for the majority, as opposed to minority, of the students.

³⁹ Crawford v. Davy, Docket No. C-137-06, first amended complaint ¶ ¶ 61-64, 152 (N.J. Super. Ct. Ch. Div. Jan. 12. 2007); see also Robinson v. Cahill, 69 N.J. 133, 147 (1975) (holding that “the right of children to a thorough and efficient system of education is fundamental …”); Abbott v. Burke, 119 N.J. 287, 296 (1990) (holding children are “constitutionally entitled” to an “equal educational opportunity”).

⁴⁰ See N.J.S.A. 10:6-2(c). The New Jersey Civil Rights Act also provides for reasonable attorney's fees and costs of suit. N.J.S.A. 10:6-2(f).

⁴¹N.J.S.A. 10:6-2(c).

⁴² Robinson v. Cahill, 62 N.J. 473, 515-516 (1973)(Robinson I).

⁴³ Id.

⁴⁴ Abbott v. Burke, 119 N.J. 287, 317 (1990) (“there is no standard of breadth of curriculum that must be offered, no standard of other commonly accepted educational criteria … and no broad-gauged standard of performance of any district”).

⁴⁵ See Crawford v. Davy, Docket No. C-137-06, slip op. at pp. 27-42 (N.J. Super. Ct. Ch. Div. Oct. 4, 2007). It should not go unnoticed that the Court did not rule against the plaintiffs on the issue of standing. Id. at pp. 13–22. The plaintiffs in Crawford named 25 local school boards as codefendants with state officials. However, the 15 named representative plaintiffs in Crawford attended only 9 of the 25 school districts operated by the defendant school boards. The school boards that operated school districts that none of the 15 named representative plaintiffs attended, therefore, argued for dismissal on the basis that the lawsuit could not proceed as to them without a representative plaintiff from their school district. In essence, such boards had no dealings with the named representative plaintiffs in the complaint and therefore those plaintiffs had no legal “standing” to assert claims against them. Plaintiffs countered by arguing that the 15 named representative plaintiffs could represent children in those other school districts because the claims and issues would be similar (if not identical) and, furthermore, that all school boards are legally related or “juridically linked” to the state defendants as agents who carry out a uniform policy that is depriving plaintiff schoolchildren of their civil rights. The Court agreed and held that the 15 named representative plaintiffs had legal standing to sue 25 local school boards. Id. at 22.

⁴⁶ Id. at 42–48.

⁴⁷ Id. at 48–50.

⁴⁸ Id. at 22–27.

⁴⁹ See Baker v. Carr, 369 U.S. 186 (1962).

⁵⁰ Crawford v. Davy, Docket No. C-137-06, slip op. at p. 30 (N.J. Super. Ct. Ch. Div. Oct. 4, 2007).

⁵¹ See e.g. Robinson v. Cahill, 69 N.J. 133, 150 (1975) (Robinson IV) (ordering a redistribution of $300,000,000 in school funding appropriated by the state legislature); Abott v. Burke, 149 N.J. 145, 198 n. 35 and 223 (1997) (ordering the state legislature to increase funding for 28 school districts by upwards of $248,000,000).

⁵² Robinson v. Cahill, 69 N.J. 133, 151-155 (1975) (Robinson IV).

⁵³ Id. at 152.

⁵⁴ Id. at 154.

⁵⁵N.J.A.C. 6A:8-4.3(d).

⁵⁶ See N.J.A.C. 6A:8-4.4(c)(1) and N.J.S.A. 18A:7A-14.

⁵⁷ See generally N.J.A.C. 6A:8-4.4. In Crawford Plaintiffs employ an average uniform standard to evaluate school performance. Plaintiffs allege that any school that achieves proficiency of only 49% or less on both the Language Arts and Mathematics assessments fails to provide a thorough and efficient education and any school that achieves proficiency of merely 24% or less on either the Language Arts or Mathematics assessment fails to provide a thorough and efficient education. New Jersey's regulatory standards are more grade and year specific and more rigorous than the standard employed by plaintiffs to plead their case. For example, among fourth graders, schools and school districts were required to achieve 68% language arts proficiency and 53% mathematics proficiency in 2003–2004, 75% language arts proficiency and 62% mathematics proficiency from 2004 to 2007, and 82% language arts proficiency and 73% mathematics proficiency by the current academic year, 2007–2008. N.J.A.C. 6A:8-4.4(a)(1)(i). Among eighth graders, schools and school districts were required to achieve 58% language arts proficiency and 39% mathematics proficiency in 2003–2004, 66% language arts proficiency and 49% mathematics proficiency from 2004 to 2007, and 76% language arts proficiency and 62% mathematics proficiency by the current academic year, 2007–2008. N.J.A.C. 6A:8-4.4(a)(2)(i). Similarly, among high school students, schools and school districts were required to achieve 73% language arts proficiency and 55% mathematics proficiency in 2003–2004, 79% language arts proficiency and 64% mathematics proficiency from 2004 to 2007, and 85% language arts and 74% mathematics proficiency by the current academic year. N.J.A.C. 6A:8-4.4(a)(3)(i). None of the schools identified in Crawford fully comply with these proficiency percentage benchmarks; rather they perform abysmally below these regulatory standards.

⁵⁸ See N.J.A.C. 6A:8-4.4(c)(1) and N.J.S.A. 18A:7A-14.

⁵⁹ Abbott v. Burke, 149 N.J. 145, 199-201 (1997)(Abbott IV).

⁶⁰ Abbott v. Burke, 153 N.J. 480, 526 (1998)(Abbott V).

⁶¹ Crawford v. Davy, Docket No. C-137-06, Plaintiffs' omnibus memorandum of law in opposition to all dispositive motions filed by Defendants at p. 47 (N.J. Super. Ct. Ch. Div. January 31, 2007) (This Court could always issue a declaratory judgment regarding the constitutional violations alleged by the plaintiffs' complaint; restrain the enforcement of district boundaries only when applied to consign plaintiff schoolchildren to failing schools; and then submit the “voucher” remedy to the Commissioner for specific study and recommendation just as our State Supreme Court did [with supplemental aid programs] in Abbott IV).

⁶²It should not go unnoticed that the court's opinion dismissing Crawford fails to discuss (and arguably) consider the holdings of certain landmark U.S. Supreme Court precedents cited by the plaintiffs on the issues of justiciability and a court's broad remedial authority to correct violations of civil rights, namely, Baker v. Carr, 369 U.S. 186 (1962) (striking down state's General Assembly apportionment statute because it diluted or debased the black vote in violation of equal protection), Gomillion v. Lightfoot, 364 U.S. 339 (1960) (applying the 15th Amendment to strike down a redrafting of municipal boundaries that affected a discriminatory impairment of voting rights despite “sweeping commitment” to state legislatures of the power to draw and redraw such boundaries), and Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (where school board failed in its duty to devise a desegregation plan, court had authority to appoint its own expert and impose a plan).

⁶³ Crawford v. Davy, Docket No. C-137-06, slip op. at 23 (N.J. Super. Ct. Ch. Div. Oct. 4, 2007).

⁶⁴ Id. at 25.

⁶⁵ Id. at 48 and 50.

⁶⁶ See Abbott v. Burke, 100 N.J. 269 (1985).

⁶⁷ Crawford v. Davy, Docket No. C-137-06, plaintiffs' omnibus surreply to all dispositive motions filed by defendants at p. 27 (N.J. Super. Ct. Ch. Div. April 6, 2007).

⁶⁸ Id.

⁶⁹ Crawford v. Davy, Docket No. C-137-06, slip op. at p. 38 (N.J. Super. Ct. Ch. Div. Oct. 4, 2007).

⁷⁰ Abbott v. Burke, 149 N.J. 145, 167-68 (1997) (Abbott IV).

⁷¹N.J.A.C. 6A:8-2.1. The review process requires “advisory panels of public school educators, higher education representatives, business representatives, and other citizens” to recommend revised education standards, preapproval publication of any proposed standards and public hearings before final approval by the State Board of Education.

⁷²N.J.A.C. 6A:8-1.1(a).

⁷³ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

⁷⁴ Abbott v. Burke, 2007 WL 1518909, slip op. (N.J. May 24, 2007).

⁷⁵James W. Guthrie and Matthew G. Springer, Courtroom Alchemy, Adequacy Advocates Turn Guesstimates Into Gold, Education Next (Winter 2007), p. 21.

⁷⁶ Id.

⁷⁷Martin R. West and Paul E. Peterson, The Adequacy Lawsuit: A Critical Appraisal, p. 8.