As required by the state Supreme Court, the Legislature submitted its 2016 report on its McCleary progress to the Court on May 18. The same day, the attorney general asked the Court to lift the contempt order and end sanctions. A few weeks ago, plaintiffs, state Superintendent of Public Instruction Randy Dorn, and others filed briefs addressing the report (all are located here). Plaintiffs and Superintendent Dorn argued that the Court should not lift contempt and should actually levy additional sanctions in the case. They suggested several options for sanctions, including:

• Shut down the schools.
• Enjoin tax credits and exemptions enacted by the Legislature.
• Enjoin payments of special levies to school districts.
• Enjoin non-education state expenditures.
• Hold individual legislators in contempt.

On Friday, the attorney general responded to these briefs. Ultimately, the AG writes,

The Court should reject the ongoing attempts of Plaintiffs and some Amici to use the contempt order as a vehicle for imposing a prospective sanction simply because they assume a future failure to meet a deadline that is still two years away.

I found the AG's discussion about how the state would actually go about doing these things to be particularly interesting. It would not be easy:

Shut down the schools. The AG notes that Superintendent Dorn cites New Jersey as an example of a "successful" model of this option. Indeed, "The schools were closed, the legislature enacted a new income tax, and the schools were reopened after eight days." But, as the AG describes, it did not end there — more than 40 years later, litigation in the case is still ongoing.

Closing down the schools in the summer of 1976 did prompt the New Jersey legislature to enact a new tax. It did not result in full funding of the educational reforms ordered by the court or in the cessation of litigation.

(Emphasis in original.)

Enjoin tax credits and exemptions enacted by the Legislature. The AG says that doing so would put "the Court on a slippery slope that slides across constitutional limitations imposed by the separation of powers." Plus, "it likely would require substantial time and money to implement such an injuction." The Department of Revenue

receives over two million tax returns annually and almost certainly lacks the resources to manually identify and review each return in order to disallow deductions, exemptions, credits, and preferences subject to injunction, and then to demand additional payment from each taxpayer.

And then there would probably be lawsuits on due process grounds. 

Enjoin payments of special levies to school districts. "It would require a finding of contempt against all 295 school districts for a contempt sanction to be levied against them." 

Enjoin non-education state expenditures. This would be limited to spending that is not required by the constitution or necessary for public health and safety. But it would mean that a number of programs would be ended, including need grants, food assistance programs, housing programs, state parks, and fish and wildlife enforcement, to name a few. It would mean "complete shutdown of at least 32 state agencies." Importantly, the AG writes that although "making ample provision for public schools" is the state's paramount duty, it "is not the State's sole duty." (Emphasis in original.)

Hold individual legislators in contempt. The AG writes that this would be unprecedented, and that it "lies outside the Court's constitutional power." Further,

any sanction directed toward individual legislators here would be inappropriate because it could force legislators to vote to serve their personal interests (getting out of contempt) rather than the interests of their constituents and the public.

For more on the McCleary decision and the Legislature's progress, see our recent special report.