1973

In April 1973, New Jersey's Supreme Court ordered state government to finally start following a 98-year-old constitutional mandate that all children get a "thorough and efficient free public education." Today, the top court is still waiting for Jersey's politicians to obey the law.

Why is a story of venality and demagoguery that can be traced right back to the justices' supposedly landmark ruling of 26 years ago.

The court said equality in public education was required, sure, but it also left the job of establishing it to governors, lawmakers and Jersey's parochial local leaders.

It's not as well known that in the famed Robinson vs. Cahill case, the high court rejected a lower judge's order to abolish the local property tax system Jersey's schools and towns used and replace it with a statewide levy that, in theory, would tap suburbanites and city folks equally.

Superior Court Judge Theodore I. Botter's call 14 months earlier for the statewide tax, on the grounds that local property taxes fostered inequality in education and other municipal services, raised howls from politicians all over the state.

Pols of all stripes recognized, first and foremost, that what Botter wanted was going to require an income tax, which posed big problems for any lawmaker who wanted to get re-elected, especially in Jersey's mostly conservative suburbs and rural areas.

Then there was the old school busing bugaboo. With complete state funding of schools would come complete state control, meaning kids from the 'burbs could be bused into Trenton and other cites for classes, many lawmakers of the day said.

It was a horrid attack on "home rule" that would make municipal and county government powerless, argued the mayors, councilmen and clerks in most of tiny Jersey's more than 567 incorporated bailiwicks. Ditto from most of the high-priced superintendents and their minions in Jersey's 600-plus different school districts.

And Botter's sweeping ruling had said all government services must be provided equally, meaning that if some wealthy borough could afford to have trash collected three times a week, then everyone in the state was entitled to that same level of service.

Jersey's Supremes were having none of this. They struck down most of Botter's ruling, saying the "equal protection" clause of the state and federal constitutions didn't require equal trash collection, or even equal education.

But the top court did let stand Botter's basic premise that the Jersey constitution of 1875 and the updated 1947 version required the same level of "thorough and efficient" education for children in poor cities like Trenton and well-off communities like Princeton.

Long before the ruling, Trenton and Jersey's other urban areas were in an economic tailspin created
by the flight of people and businesses unable to pay taxes on homes and plants and shops. Despite having fewer properties to tax, the urban school boards still had to fund about 67 percent of their huge education budgets.

In 1970, with help from the .Jersey City government and lawyers funded by the Ford Foundation, the mother of a Jersey City student name Kenneth Robinson sued the new governor, William T. Cahill, on the grounds he wasn't enforcing the constitution ution mandate of "thorough and efficient" education for all.

Just as young Robinson was a symbolic point man for all children in urban Jersey schools, Cahill was a symbolic target. Cahill actually agreed with the equality-in-education aim of the suit, for instance, and by July 1972 was trying to push an income tax through the legislature to fund a huge infusion of money into city school districts.

But lawmakers, led by his fellow Republicans, voted down Cahill's plan, preferring to put off action
until they heard from the top court, which had put a hold on Botter's ruling after receiving it on appeal 14 months earlier.

On April 3, 1973, Chief Justice Joseph Weintraub announced the unanimous opinion of the court: Jersey was not providing its mostly poor urban children with the "thorough and efficient free public education" required by the constitution.

But Weintraub and company said they would not tell the government how to meet the mandate. They ordered more hearings on the implementation of the plan -- and lawyers for cities, suburbs, legislatures, governors and do-good think tanks have been arguing about it ever since.

By 1976, the continuing controversy had spawned a major constitutional crisis: On June 30 of that year, the Supreme Court closed all Jersey schools by banning any spending on them and said the legislature better act before classes started again in September.

That was the impetus for passage several weeks later of Jersey's first income tax, which was barely pushed through by Gov. Brendan Byrne even though his own Democratic Party controlled both the Assembly and Senate.

To get the tax, Byrne had to promise relief from the high property taxes most state homeowners were paying, which gave birth to the pre-election rebate checks now so popular in Jersey -- even if they are an inefficient way to redistribute wealth.

Byrne's income tax was 2 percent from working slugs and 2.5 percent from the better-off, then defined as people making more than $100,000 a year. By the time the money for property-tax rebates had been taken out, the total amount left for urban school budgets permitted the state to raise its share of funding in the budgets of the worst-off local districts from about 25 percent to about half.

Within months, the Robinson plaintiffs were complaining that the increased state funding wasn't meeting the "thorough and efficient" requirement and that lawmakers hadn't yet addressed the additional Weintraub court order that the state also do something about the crumbling condition of so many urban schools.

Since then, the issue has been the subject of no fewer than five major court rulings, including three that slapped down funding schemes governors trumpeted as final solutions to the crisis:

* In 1981, with the case renamed Abbott vs. Education Commissioner Fred G. Burke, the court found that in the five years of funding under the Byrne formula, the amount of state aid to urban districts had slipped well below half of the local budget and that disparity between rich and poor schools had actually widened.

* In 1990, despite big increases in state aid to poor school districts during Gov. Thomas H. Kean's two terms, the court again said Jersey government wasn't cutting it and that it would have to put as much money behind the 300,000 youngsters in poor districts as the wealthiest of 'burbs and boroughs were able to put behind their kids.

* In 1994, the court struck down as inadequate the funding scheme of Gov. Jim Florio, whose infusion of money into poor districts was so huge he was branded as the biggest tax hiker in Jersey history, which led to his losing re-election bid. This ruling gave the state until 1997 to correct the inequity.

* In 1997, the court struck down the new course Gov. Christie Whitman had charted after winning office with promises to cut taxes. No, the court ruled, the state couldn't get out of its obligation by setting minimum education standards that defined "thorough and efficient" education and then declaring poor schools were making the grade.

Earlier this year, based largely on the recommendations of a special judge appointed by the Supreme Court in 1997 to study the controversy, the justices seemed to throw in the towel by ruling that the inequities could be finally fixed with new shots of money aimed at better preparing youngster to start school and improving the facilities of Jersey's 28 poorest school districts. The estimated price tag: More than $3 billion.

Paul L. Tractenberg of the Rutgers University School of Law, a leading scholar on the school funding issue, last week said that despite how it looks to some reformers, the Supreme Court hasn't given up the fight for Jersey's urban youngsters and that some of us might live to see the constitutional education mandate met.

Tractenberg noted, for example, that with school districts like Trenton having 80 percent of their giant budgets funded by the state these days, Jersey government has come a long way toward meeting the court order of 1973. Indeed, in urban Jersey and most better-off districts, the dollars behind each student come to about $8,400 per year -- the kind of equity envisioned by Botter and Weintraub.

Now, the Rutgers prof said, the state can start on the second part of the Robinson order handed down by the court 26 years ago: Sinking money into making urban schools as safe and modern as the ones suburban kids enjoy.

According to the latest court order hanging over Jersey government, it must send more than $2 billion upgrading old or building new facilities in Jersey's 28 poorest urban districts, including Trenton.

Mindful that all the money poured into urban school districts over the past 25 years hasn't raised student test scores a whit, the court decided the state should also fund full-day kindergarten and a massive program of preschooling for city children starting at age 3. The estimated price tag on this: $300 million.

But don't dash for the state borders just yet. History shows Jersey's army of governors, lawmakers mayors, councilmen and school superintendents should be able to hold things up for another 25 years.