The document is a letter brief from the New Jersey Attorney General arguing against a motion in limine to bar certain witnesses from testifying in the Abbott v. Burke school funding case. The brief argues that testimony from state officials about New Jersey's fiscal situation and how state education aid was allocated in FY 2011 is highly relevant to determining whether the funding level was constitutional. Excluding this evidence would prevent the state from providing critical context and leave an incomplete record for the court's review. The special master should allow the testimony to give the state a full opportunity to prove that funding was adequate despite budget cuts due to the state's fiscal problems.

1. State of New Jersey
OFFICE OF THE ATTORNEY GENERAL PAULA T. Dow
CHRIS CHRISTIE
Attorney General
Governor DEPARTMENT OF LAW AND PUBLIC SAFETY
DIVISION OF LAW
25 MARKET STREET ROBERT M. HANNA
KiM GUADAGNO Director
Lt. Governor PO Box 112
TRENTON. NJ 08625-0112
February 9, 2011
Honorable Peter E. Doyne, A. J . S . C.
Superior Court of New Jersey
Bergen County Justice Center
Suite 425
Hackensack, New Jersey 07601-7699
Re: Abbott v. Burke
Docket No. M-1293
Dear Judge Doyne:
Please accept this letter brief in lieu of filing a
formal brief on behalf of the State in response to Plaintiffs'
motion. The New Jersey Supreme Court has vested the Special Master
with the authority to consider "any and all" evidence necessary to
determine whether current levels of school funding can provide for
a constitutionally mandated thorough and efficient education to New
Jersey school children. The fiscal circumstances surrounding the
amount of State school aid made available by the Legislature in FY
2011 and the manner in which that funding was distributed to
districts is critical factual information that is directly relevant
and indeed necessary to the Special Master's determination of
whether education funding in FY 2011 is constitutional. Absent
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2. February 9, 2011
Page 2
consideration of the State's fiscal circumstances and the manner in
which State school aid was distributed, the Special Master, and,
ultimately, the Supreme Court will be making determinations of a
constitutional magnitude without significant facts relevant to the
legislati ve determinations on meeting its constitutional
obligations.
PROCEDURAL HISTORY AN STATEMENT OF FACTS'
The State relies upon the procedural and factual
histories provided in its previous briefs to the New Jersey Supreme
Court of July 9, 2010, September 27, 2010, and January 25, 2011,
and briefly summarizes and supplements them only to the extent
necessary for the Court's consideration of the present motion.
Facing a longstanding structural deficit exacerbated by
prior years' repeated reliance on non-recurring revenues, the
Legislature passed and Governor Christie signed the FY 2011
Appropriations Act. The projected revenues and available fund
balance for FY 2011 was $823 million less than for the FY 2010
budget. ~ 2010, ~ 35; Sidamon-Eristoff Certification, ~10. The
Legislature was forced to make reductions in almost all areas of
the FY 2011 budget, including reducing the appropriations for SFRA
formula aid by $24.7 million and not replacing the $1.057 billion
"The Procedural History and Statement of Facts have been
combined in the interest of continuity and coherence because they
are inextricably intertwined.

3. February 9, 2011
Page 3
of State Fiscal Stabilization Funding (SFSF) received on a one time
basis in FY 2010. ~ 2010, ~ 35; sidamon-Eristoff Certification,
~10, ~20. Nevertheless, school aid still comprises more than one-
third of the total FY 2011 line item appropriations, and represents
a greater share than in previous year's budget. ~ 2010, ~ 35;
sidamon-Eristoff Certification, ~18.
To account for the reduction of State school aid, the
Appropriations Act developed a complex means of distributing school
aid among districts that was consistent with - although a necessary
modification of - the SFRA formula. ~ 2010, ~ 35; Sidamon-
Eristoff Certification, ~21-27. Despite the reductions in State
aid from FY 2010, the allocation of school aid was performed in an
equitable and transparent manner.
On June 8, 2010, Plaintiffs filed a Motion in Aid of
Litigant~' Rights before the New Jersey Supreme Court. The State
opposed Plaintiffs' motion because the reductions to school aid
were necessary in light of the dire economic and fiscal
circumstances facing the State and because the necessary reductions
were implemented in an equitable manner designed to minimize and
mi tigate the reduction of funding to poorer districts relying most
heavily on State aid.' Because current levels of school funding
'Indeed, the Abbott districts remain among the highest
spending districts in the State and the State is the highest, or
among the highest, spending states in the country.

4. February 9, 2011
Page 4
did not create the type of gross disparities that provided the
basis for the Court to find prior funding formulas
unconstitutional, the State urged the Court to decline Plaintiffs'
invitation to disregard fundamental principles of separation of
power and constitutional allocation of appropriations authority.
In its presentation to the New Jersey Supreme Court, the
State relied upon certifications of the State Treasurer, Andrew P.
Sidamon-Eristoff, the Director of the Office of School Funding,
Department of Education, Yut' se Thomas, and Assistant Commissioner
of the Division of Students Services, Department of Education,
Barbara Gantwerk.
On January 13, 2011, the New Jersey Supreme Court issued
an Order remanding the matter to the Court for the development of
a factual record. The Order directed that the "basis for the
record shall be the level of funding provided in the current school
year...." Order, at 5, ~3. The State was charged with the burden
of proving that "the present level of school funding distributed
through the SFRA formula can provide for a thorough and efficient
education as measured by the comprehensive core curriculum
standards in districts with high, medium, and low concentrations of
disadvantaged pupils." Order, at 5, ~4. The "relative comparison
of funding among districts alone shall not be sufficient to carry
the State's burden." Order, at 5, ~5. The Supreme Court directed

5. February 9, 2011
Page S
the Special Master to issue his report by March 31, 2011. Order,
at 6, HS-6.
Following the New Jersey Supreme Court's Order, case
management conferences were held before the Court on January 18,
2011, and January 21, 2011. On February 2, 2011, the Court entered
a Case Management Order (CMO) directing the commencement of the
remand hearing on February 14, 2011, and conclusion of the remand
hearing by March 11, 2011. CMO, ~10. Thus, the Parties were given
a month to prepare for the remand hearing.
At the case management conference of January 21, 2011,
the Special Master informed the parties that it did not find the
State's fiscal situation to be within the purview of the Supreme
Court's Order. In response, the State moved before the Supreme
Court asking the Court to clarify its Order as to the ability of
the Special Master to consider the State's fiscal situation and for
modification of its Order to allow for a reasonable period of time
for the State to develop and present its case. In its February 1,
2011 Order, the Supreme Court denied the State's motion for
clarification, "save for the recognition that the Special Master is
authorized to entertain any and all evidence as he sees fit in the
proper completion of his assigned task." February 1, 2011 Order at
3. Accordingly, the request for additional time for the State to
prepare and present its case was denied but the Special Master was

6. February 9, 2011
Page 6
permitted to consider "any and all evidence" that he determines is
"proper" in the completion of the remand hearing.
In noticing witnesses that may be providing testimony in
the remand hearing, the State identified the Treasurer and an OMB
Budget Manager to provide testimony regarding the State's FY 2011
Budget including the fiscal circumstances surrounding the adoption
of that Budget as well as how school aid was actually allocated in
that Budget. The State further provided the plaintiffs with
proposed stipulations of fact that would encompass that testimony.'
The State also identified Assistant Commissioner Barbara
Gantwerk as a witness who may be called to testify at the remand
hearing. Her testimony would be for the purpose of describing the
amounts of federal aid available to all of the districts in the
State in FY 2011 through the Individuals with Disabilities
Education Act (IDEA) aid and additional Title I and IDEA aid
distributed under American Recovery and Reinvestment Act of 2009
(ARRA) . A certification was filed with the Supreme Court by
Assistant Commissioner Gantwerk that addressed the Title I and IDEA
aid and additional Title I and IDEA aid distributed under ARRA but
'The State does not intend to call the Treasurer to testify if
the parties could reach agreement on those stipulations. The State
was considering having the OMB Budget Manager available to testify,
if necessary, to provide the Special Master a complete
understanding of the highly technical and novel approach used to
allocate State school aid for FY 2011.

7. February 9, 2011
Page 7
solely for the Abbott districts.'
The testimony of these witnesses will provide the Special
Master with important information regarding the funding
determinations made by the Legislature and additional fiscal
resources available to school districts in FY 2011. Without this
information, the Special Master will be viewing the FY 2011 without
the proper context or a full understanding of the manner in which
the Legislature chose to meet its constitutionally delegated
responsibilities.
plaintiffs, however, have filed a motion in limine to bar
the introduction of evidence from these three witnesses.'
Plaintiffs argue that the supreme Court order precludes the Special
Master from being able to consider this evidence. This brief is
filed on behalf of the State in opposition to Plaintiffs' motion.
'The State intends to provide plaintiffs with a document that
would incorporate this information for all districts and would
update the data provided to the Supreme Court regarding the Abbott
districts. To the extent that the plaintiffs will agree to the
submission of this evidence without testimony, Assistant
Commissioner Gantwerk will not need to testify.
'The allocations to districts through the federal Education
Jobs Fund Act was not included in the Gantwerk Certification and
she would not be called to testify as to the distribution of those
funds. Rather, Kevin Dehmer, a POlicy/Fiscal Analyst in the
Division of Finance, Department of Education will testify as to
those amounts in the event that .the plaintiffs will not agree to
its submission into evidence without testimony.

8. February 9, 2011
Page 8
LEGAL ARGUMNT
POINT I
PLAINTIFFS' MOTION SHOULD BE DENIED BECAUSE
THE STATE'S FISCAL CIRCUMSTANCES ARE NOT ONLY
HIGHLY RELEVAN BUT ESSENTIAL TO A FAIR
CONSIDERATION OF THE CONSTITUTIONALITY OF
STATE SCHOOL AID IN FY 2011.
Declining revenues, a severe national recession and
longstanding structural deficit, exacerbated by prior years
repeated reliance on non-recurring revenues, constitutionally
compelled reduced spending in the FY 2011 budget. Sidamon-Eristoff
Certification, ~5, ~7, ~9, ~16. While school aid continues to
represent one-third of the line-item appropriations, and a greater
share than in the previous year's budget, State school aid could
not be held harmless from reductions. ~ 2010, ~ 35; Sidamon-
Eristoff Certification, ~18. Accordingly, adjustments were made to
school funding under the SFRA. The context for making those
modifications and a full understanding of what modifications were
made is critical to a complete understanding of and the ability to
properly assess the constitutionality of State school aid for FY
2011.
The Special Master in this remand is being asked to
determine whether a statute (in this case the Appropriations Act)
providing State school aid is unconstitutional because it violates
the thorough and efficient clause of the New Jersey Constitution.

9. February 9, 2011
Page 9
The State contends that finding can only be made if the Special
Master concludes that the formula creates or supports gross
dispari ties between poor urban districts and weal thy suburban
districts. Such gross disparities is the only factual situation in
which the Supreme Court has made such a determination. Abbott v.
Burke, 149 N.J. 145, 191 (1997) (Abbott iv) (Poorer urban districts
spending at 89% of the wealthier suburban districts and funding
formula at issue "arrests any movement toward funding equality");
Abbott v. Burke, 136 N.J. 144, 447 (1994) (Abbott III) (relative
disparity in expenditures at 84%); Abbott v. Burke, 119 N.J. 287
(1990) (Abbott II) (on the average, wealthier districts spend 40%
more per pupil than poorer districts). The manner in which State
funds were allocated in FY 2011 is highly relevant to that
determination.
While the SFRA had to be modified in FY 2011 given the
fiscal circumstances, the distribution of State aid was consistent
with the underlying formula and relative weights for students with
special needs, i. e., at-risk and limited English proficient (LEP).
Moreover, the reductions were accomplished by looking at general
fund budgets rather than State aid thus minimizing the impact of
the reductions on districts that are heavily dependent on State
aid, including the poor urban districts. To ignore this allocation
method, and the underlying causes for the reductions that required

10. February 9, 2011
Page 10
such an allocation method, would be to exclude from the record
highly relevant factual information supportive of the State's legal
arguments and would leave the Supreme Court without a full and
complete record on which to consider those arguments.
Plaintiffs argue that the Special Master is precluded
from considering this highly relevant evidence based on the
language in the Supreme Court's Order issued in response to the
State's motion for clarification and for additional time. The
State filed a motion with the Supreme Court for clarification of
its remand order to permit the Special Master to consider the
State's fiscal circumstances in determining whether the present
level of school funding is constitutional. The Order, however,
should not be read as precluding consideration of the fiscal
evidence. In fact, the Order specifically references the fiscal
evidence as something the Court intends to consider. without
permitting this evidence in the Remand Hearing, the Special Master
would be preventing the State from updating, expanding and
providing more complete information on the State's fiscal
circumstances.
Moreover, the Order granted the State's motion in so far
as it clarified that "the Special Master is authorized to entertain
any and all evidence as he sees fit in the proper completion of his
assigned task." February 1, 2011 Order, at 3. Had the Supreme

11. February 9, 2011
Page 11
Court intended to preclude the State from presenting evidence of
the State's fiscal situation, the Supreme Court could haye denied
the State's motion without further comment. In crafting the
additional language, the Supreme Court has authorized the Special
Master, in his discretion, to consider "any and all" eyidence.
Thus, it is within the Special Master's discretion whether or not
to entertain this evidence.
The special Master should exercise its discretion by
permitting the State to introduce fiscal eyidence that the State
contends is highly relevant to the issue of whether State school
funding in FY 2011 is constitutional. without knowledge of the
fiscal circumstances requiring a reduction in school aid and the
basis upon which aid was distributed, the Special Master would be
making findings of fact and drawing conclusions of law based on
those facts without the relevant context in which to view them.
Giyen "the radical interference with the legislatiye power that is
inyolved in the constitutional determination of insufficiency,"
Abbott II, supra, 119 N.J. at 321, the determination should not be
made without full consideration of all available information.
Furthermore, precluding this evidence would be extremely
prejudicial to the State. This is particularly true given the time
frame established by the Supreme Court for the remand hearing and
the expansion of the districts at issue from the Abbotts to all New

12. February 9, 2011
Page 12
Jersey school districts. The fiscal evidence explains why and how
State funding was provided to all school districts in New Jersey in
FY 2011. Although the State is in the process of developing
additional evidence to support the constitutionality of the
reductions in State aid, the State had not been provided the time
necessary to fully develop that evidence. Abbott II was the last
school funding case decided by the supreme Court that involved a
challenge to the entire financing system rather than just as it
relates to the Abbott districts. In that remand, from the time of
the Supreme Court Order until the Administrative Law Judge issued
his Initial Decision was three years. Abbott v. Burke, 1989 S.L.D.
234. In this remand, the Supreme Court has given the State less
than three months.' Moreover, instead of the plaintiffs having the
burden of proving the statute is unconstitutional, as was the case
in these other remands, the Court has placed this burden on the
State not only with regard to the Abbott districts, but for all
districts.
The State is confident that the amount of funding being
provided in FY 2011 meets the constitutional threshold. New Jersey
spends per pupil well-above almost all of the other states even
'Even in the school funding in which the remands were focused
solely on the Abbott districts, the State has never been required,
in the time frame provided here, to develop the type of factual
evidence necessary to meet its burden. See Abbott v. Burke, 153
N.J. 480 (1998) (Abbott V); Abbott III, supra.

13. February 9, 2011
Page 13
when adjusted by the Comparable Wage Index' or by personal wealth.
See, ~, ~~www. edsource. org/data-per-puil-spend-compare-using-
cwi. html (last visited on February 9, 2010) "" (New Jersey ranks
number one in the nation on unadjusted per-pupil expenditure and
ranks third when adjusted by the SWI); Education Finances 2008,
U. S. Census Bureau' (New Jersey ranks second in unadjusted per-
pupil expenditure and ranks fourth when adjusted based on personal
income). As the Supreme Court noted in Abbott II,
Measured by any accepted standard, New Jersey
has been generous in the amount of money spent
for education. We currently spend more
dollars per student for education than almost
any other state. Given that fact, this Court
could not conclude that the State has failed
to provide for a thorough and efficient
education in all school districts. To do so
would mean that our State Constitution has
invented a standard so different from, and
substantially higher than, the rest of the
country that even though we spend almost the
most, constitutionally that is not enough.
The dilemma is that while we spend so much,
there is absolutely no question that we are
failing to provide the students in the poorer
urban districts with the kind of education
anyone could call thorough and efficient.
'The Comparable Wage Index (CWI) was developed by Professor
Lori Taylor of Texas A&M University and reflects the salary costs
of college-educated, full-time workers in non-education fields.
Cite. The CWI served as the model for the Geographic Cost
Adjustment used in the SFRA. Abbott v Burke, 199 N.J. 140, 220-221
(Abbott XX) (Special Master Opinion/Recommendations) .
'This publication is available at ~~ww2. census. gov/govs/
school/08f33publ.pdf (last visited February 9, 2011) "".

14. February 9, 2011
Page 14
(Abbott II, supra, 119 N.J. at 392) .
Since Abbott II, billions of dollars have been targeted toward the
poorer urban schools. Now, instead of being some of the lowest
spending districts, the Abbott districts are among the highest
spending.
Given the high level of expenditures in the Abbott
districts, and throughout the State, plaintiffs' claim that a
reduction of State aid equal to less than five percent of a
district's general fund budget is of such a magnitude that
districts can no longer provide a thorough and efficient education
is, on its face, suspect. with a statistically sound sampling of
districts to determine how much general fund budgets were actually
reduced, the educational programs effected by way of any
reductions, how the process for making those reductions was
undertaken and the effect of these one-year reductions on student
outcomes, the State would be able to demonstrate the reductions did
not effect districts' ability to provide a thorough and efficient
education. In light of the diversity of district size,
configuration and percentages of economically disadvantaged
students, that sample would need to be substantial. Obviously,
putting together those proofs would require more time than allotted
by the Supreme Court's January 13, 2011 Order. Our subsequent
request for additional time, however, was denied by the Supreme

15. February 9, 2011
Page 15
Court by its Order dated February 1, 2011. Thus, instead of a full
and complete record on which to decide this significant
constitutional issue with broad ramifications throughout the State,
the proofs before the Special Master will be quite limited.
Plaintiffs will be providing testimony of select mainly
low-spending districts that do not represent a statistical sample
from which to draw any broader conclusions. The State will, at
best, be able to present generalized data that views all districts
and the relationships between spending, performance and at-risk
populations. To limit the record by precluding information that
the State believes is critical to a fair determination of the
constitutionality of its distribution of State school aid in FY
2011 would even further deprive the State of a reasonable
opportuni ty to present its case.
Finally, permitting the State to introduce this evidence
would not be prejudicial to the plaintiffs. The Special Master, in
considering the evidence, can give it as much weight as he deems
appropriate. Regardless of the weight given to the evidence in
this forum, allowing its introduction will ensure that a complete
record will be available to the Supreme Court on the fiscal
circumstances. Given that the Court has specifically stated its
intention to consider the question of what effect the fiscal
condition may have on plaintiffs' entitlement to relief, the most

16. February 9, 2011
Page 16
current and complete evidence should be included in the remand
record. Accordingly, the motion in limine as to the fiscal
evidence should be denied.
POINT II
EVIDENCE RELATED TO THE FEDERAL DOLLARS THAT
ARE AVAILALE TO NEW JERSEY SCHOOL DISTRICTS
IN FY 2011 SHOULD BE CONSIDERED BY THE SPECIAL
MASTER IN THE REMA PROCEEDING
The State intends to present evidence at the remand
hearing as to the resources that are available to New Jersey school
districts through federal government programs. The Supreme Court
found that this type of evidence, as a practical matter, could not
be ignored. Abbott XX, supra, 199 N.J. at 173. Ignoring this
source of funding would be particularly inappropriate because some
of the federal programs were specifically designed to assist state
in supporting education during these difficult fiscal times. See
Education Jobs Fund Act, Public Law No. 111-226 (2010); ARRA.
Plaintiffs' narrow reading of the Supreme Court's remand order
should be rejected by this forum and the State should be permitted
to have this evidence included in the record.
Plaintiffs argue that because the Supreme Court remand
order speaks in terms of funding "through the SFRA" that all other
revenues that districts may have to support their educational
program in FY 2011 should be disregarded. Such a cramped reading

17. February 9, 2011
Page 17
of the remand order would preclude the special Master from
considering what revenues the districts actually had available to
them for FY 2011 and whether the reductions they may allege
resulted from the reduction in State aid for FY 2011 could have
been averted if additional available revenues had been allocated to
support those areas. Federal funds are an integral part of a
school districts budget. They support special education services,
provide supplemental programs for at-risk students and, through the
Education Jobs Fund, are targeted to preventing the staff
reductions that may have otherwise occurred in FY 2011. To ignore
these available revenues would provide the Special Master, and
ultimately the Court, with a skewed picture of the districts'
fiscal capacity and ability to provide the constitutionally-
mandated level of education.
Moreover, plaintiffs are incorrect in claiming that the
presentation of information on federal funds will be the same as
that presented to the Supreme Court in Assistant Commissioner
Gantwerk's certification. The Gantwerk Certification addressed the
federal funds distributed to Abbott districts under Title I, the
IDEA and ARRA.' The remand hearing has broadened the scope of the
'As previously noted, the allocations to districts through the
Education Jobs Fund Act was not included in the Gantwerk
Certification and she is not being called to testify as to the
distribution of those funds. The State intends to present the
amount each district received through the Education Jobs Fund Act

18. February 9, 2011
Page 18
proofs as to all districts in the State. Accordingly, the amounts
of federal funds available to the remaining districts is not before
the supreme Court. Furthermore, even as to the Abbott districts,
the information in the Gantwerk Certification is not the most
current. Rather than "superfluous," federal revenues provide an
important source of funding to support the educational programs in
a district. Evidence of these available revenues is necessary to
provide as complete a record as possible in the allotted time frame
on which the Special Master and the Supreme Court will evaluate the
constitutionality of school funding for FY 2011.
CONCLUSION
For the reasons set forth herein, Plaintiffs' motion
should be denied.
Respectfully submitted,
PAULA T. DOW
ATTORNEY GENERAL OF NEW JERSEY
By: /!1:~r041Q.~_)
Assistant Attorney General
c: David Sciarra, Esq.
Lawrence S. Lus tberg, Esq.
John D. Rue, Esq.
Counsel for Amici Curiae
by a document and, if necessary, through the testimony of Kevin
Dehmer.