Education and the Government: A Complicated Couple
The states are in the driver's seat, and the federal government is - at best - a backseat driver. Incentives within the states to deliver quality education, and the costs for not, make the difference.
Welcome to New Jersey Insight, a periodic newsletter to make law and politics (through a New Jersey lens) more accessible.
This fall, my daughter will start kindergarten, a milestone both for her and for me and my wife. Though she has already entered the public school system as a preschooler, kindergarten seems...different. For one, the school day is longer (by an entire forty-five minutes!). Also, as I hear from other parents, the kindergarten curriculum has a rigor unlike a preschool curriculum. Yes, I know. I’m comparing preschool to kindergarten. But whether it is starting elementary school, high school, or college, surely I must do my best to ensure that my little one is prepared to succeed and dominate. Right?
My overambitious and overbearing parenting instincts aside, I have been thinking a lot about the overall relationship between the education system and the people. In my past work as special counsel to Governor Phil Murphy, I was routinely immersed in controversies with statewide import involving our schools. But as a parent, the stakes hit much differently now, and much more personally, than they did before.
A lot can be said about the shortcomings of our public education system, much more than what I can devote to in this newsletter. But I do want to share my observations on one aspect: the interplay between the law and the governmental institutions that are charged to deliver education for our children. In particular, I want to focus on how the law in New Jersey creates meaningful leverage points that compels state policymakers to act and, conversely, how it exacts costs on the government when it refuses. In other words, in New Jersey, the responsibility to deliver quality K-12 education to all of its residents is not simply one political issue out of many for elected officials to address, but instead, it is a constitutional imperative.
In the United States, the federal government plays a limited role in K-12 education. Federal monies constitute about 10% of K-12 funding. The U.S. Department of Education focuses on not only distributing that funding, but also “enforcing civil rights laws and conducting educational research.” The Department’s footprint is likely even smaller today since last year, the President ordered the Secretary of Education to “take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States.”1
The bulk of control and power over public schools, therefore, lies with the states. And often, state and local communities drive the education agenda. In New Jersey, the state department of education and the statewide board of education oversees the governance of 2,500 public schools serving 1.4 million students. The local boards of education primarily oversees the day-to-day operations of their respective school districts - nearly 600 of them - and decides everything from staffing allocations and teacher salaries to curriculum. And though local boards of education can exercise a lot of discretion, their discretion is cabined by state law and regulations.
The game changer in New Jersey is the mandate baked into our state charter: the thorough and efficient clause of the New Jersey Constitution.
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 years.
N.J. Const. Art. VII, Section IV (T&E Clause).
A concept that evolves over time, the T&E Clause requires: “a certain level of educational opportunity, a minimum level, that will equip the student to become a citizen and...a competitor in the labor market.” For over 30 years, the New Jersey Supreme Court - one of the few high courts to do so - put the state government to task to achieve this constitutional vision. Through a series of decisions captioned under Abbott v. Burke, the court regularly required the legislature to fund school districts that have historically suffered from underfunding to a level that is equivalent to other performing districts. It also would demand the implementation of supplemental programs to cover gaps in education attainment in these districts, like preschool programs.
The mandate extended to school facilities, with a judicial recognition that “adequate physical school facilities are an essential component” of the T&E Clause requirement. As recently as during the pandemic, the state had to appear in court and show its progress in funding school construction in the most-needed school districts. With the ongoing litigation as a backdrop (and likely a pressure point), the legislature initially authorized $200 million in fiscal year 2022 for school facilities projects. It later appropriated upwards of approximately $2 billion in fiscal year 2023 to finance school construction projects.
We can speculate whether, in the absence of judicial pressure, state policymakers would have prioritized school funding in this manner. Elected officials routinely espouse their support for public education, but yet, we see deficiencies in our system. Education disparities breakdown by class, geography, and race. Especially in the states where money isn’t finite, policymakers are in the middle of a push and pull where students, parents, teachers, and municipal leaders all have their priorities to advance.2 And on top of this dynamic, we have a public school system that remains primarily funded through the imposition of real estate taxes - a structure that will inevitably favor wealthier geographies over those areas that are not.
Hence, the complicated relationship between government and schools. Our aspirations are high, but the political will seems muddled. But with the right incentives and pressure points like a judicially enforced education mandate, we can at least expect policymakers to move in the right direction, willingly or not.
To be clear, the President cannot unilaterally eliminate the Department. Congress created the Department, 20 U.S.C. 3411, and an act of Congress would be needed to eliminate it.
A committee hearing that was just recently held in the New Jersey Assembly is a case in point. Lawmakers heard testimony from witness and witness who raised the alarm over budget deficits in school districts across the state. “Those budget shortfalls have driven administrators to lay off teachers and school nurses, ax programs, sell property, hike taxes, and make other controversial cuts.” Deborah E Cornavaca, a former colleague of mine from Governor Murphy’s office who is currently at the New Jersey Education Association, aptly described the unenviable exercise by school leaders to beg “from this pot over here to fill those mandated holes.”