The New Statewide Challenge to School Segregation in New Jersey Already Has a Lot Going For It

The new lawsuit by the Latino Action Network and New Jersey NAACP takes a bold swing at school segregation and connects.  The facts are both straightforward and damning.  New Jersey’s schools--traditional public schools and charters—are extremely segregated.  The state is responsible for the segregation in both sectors.  And the state constitution prohibits it. 

The million-dollar question is whether they can win.  I believe they can, if courts are brave enough to follow the facts and law where they lead.  Plaintiffs’ cite to Sheff v. O’Neill, a 1996 Connecticut Supreme Court case that ruled in plaintiffs’ favor on similar facts and similar constitutional language.  The New Jersey claim, however, is probably even stronger.

The extent of the racial isolation in New Jersey schools is shocking.  One in four African American students in the state attend a public school that is 99 percent or more minority.  Another one in four attend “public schools in which the percentage of Black and Latino students exceeds 90%.”  Almost two in three to a school that is “80% or more non-White.”  The numbers for Latino students are nearly as bad.  Fifty-nine percent “attend schools that are more than 80% non-White.”

Charter schools aren’t helping.  According to the complaint, they are making matters worse.  Charter schools seem almost exclusively reserved for minority in many instances.  Three out of four charter schools in the state have student enrollments that are less than ten percent white.  They argue that over 80 percent of charter schools have “extreme levels of segregation.”

The common retort to these sorts of facts is that they are the result of private choice and beyond the control of the state.  The complaint acknowledges the role that residential segregation places in school segregation, but reveals that the state cannot wash its hands of the problem for two reasons.  First, state education policy plays an additional causal role in this segregation.  In other words, this level of segregation is not inevitable.  It is a state policy choice.

Second, the state constitution and statutes prohibit this segregation.  So even if the state was simply a passive participant, the state constitution and laws would demand a remedy given the negative educational consequences that flow from this segregation.

As to the state’s causal responsibility, “[t]he State has been complicit in the creation and persistence of school segregation because it has adopted and implemented laws, policies, and

practices that require, with very limited exceptions, students to attend public schools in the municipalities where they live.”  More specifically, the state has drawn school district boundaries that are conterminous with residential segregation.  Then it required students to attend schools within those boundaries.  The state could, of course, have drawn larger or different school district boundaries, but choose not to.  In other words, the state has allowed private segregative choices to define the boundaries of public school district boundary choices.

The state’s oversight with charters is arguably even worse and more obviously segregative.  The State Commissioner of Education has a statutory duty to ensure, to the “maximum extent practicable,” that “[t]he admission policy of the charter school . . . seek[s] the enrollment of a cross section of the community’s school age population including racial and academic factors.”  State regulations further provide that “[p]rior to the granting of the charter, the Commissioner shall assess the student composition of a charter school and the segregative effect that the loss of the students may have on its district of residence.” N.J.A.C. 6A:11-2.1(j). Thereafter, “[o]n an annual basis, the Commissioner shall assess the student composition of a charter school and the segregative effect that the loss of the students may have on its district of residence.” N.J.A.C. 6A:11-2.2(c). And in reviewing applications for charter renewal, “[t]he Commissioner shall grant or deny the renewal of a charter upon the comprehensive review of the school including . . . the annual assessments of student composition of the charter school.” N.J.A.C. 6A:11-2.3(b)(8).

Rather than comply with these statutory and regulatory duties, the Commissioner has overseen and approved charter schools that are predominantly located in “intensely segregated urban districts” and enroll predominantly minority students.  The Commission has done so, notwithstanding the fact, that these same charter schools could have been required to operate on a regional basis and enroll students from a much more diverse set of backgrounds--or simply denied charters in the first instance.

The big hook, however, is the state constitution.  Whether intentional or de facto, racial segregation is unconstitutional under the New Jersey Constitution, particularly when it has the effect of depriving students of equal and adequate education opportunities, including those that flow from exposure to a diverse learning environment.  Quoting prior New Jersey Supreme Court precedent, the complaint explains:

Whether or not the federal constitution compels action to eliminate or reduce de facto segregation in the public schools, it does not preclude such action by state school authorities . . . . In a society such as ours, it is not enough that the 3 R’s are being taught properly for there are other vital considerations. The children must learn to respect and live with one another in multiracial and multi-cultural communities and the earlier they do so the better. It is during their formative school years that firm foundations may be laid for good citizenship and broad participation in the mainstream of affairs. Recognizing this, leading educators stress the democratic and educational advantages of heterogeneous student populations and point to the disadvantages of homogeneous student populations . . . . [T]he states may not justly deprive the oncoming generation of the educational advantages which are its due, and indeed, as a nation, we cannot afford standing.

And this is not just judicial posturing.  The precise language of the New Jersey Constitution itself prohibits segregation of any person “in the public schools, because of religious principles, race, color, ancestry or national origin.” The constitution also requires a “thorough and efficient” education for all students.  These two key constitutional requirements combined have lead the New Jersey Supreme Court to hold in several instances that:

• “It is neither just nor sensible to proscribe segregation having its basis in affirmative state action while at the same time failing to provide a remedy for segregation which grows out of discrimination in housing, or other economic or social factors.” Booker v. Bd. Of Educ. of Plainfield, 45 N.J. 161, 170 (1965)
• “[T]he Commissioner had the responsibility and power of correcting De facto segregation or imbalance which is frustrating our State constitutional goals . . . .” Jenkins v. The Township of Morris School District, 58 N.J. 483, 506 (1971)
• “New Jersey’s abhorrence of discrimination and segregation in the public schools is not tempered by the cause of the segregation. Whether due to an official action, or simply segregation in fact, our public policy applies with equal force against the continuation of segregation in our schools.” In re Grant of Charter School Application of Englewood on the Palisades Charter School, 164 N.J. 316, 324 (2000)
• “We consistently have held that racial imbalance resulting from de facto segregation is inimical to the constitutional guarantee of a thorough and efficient education.” In re North Haledon School District, 181 N.J. 161, 177 (2004)

Unlike Brown v. Board or Sheff v. O'Neill (when they were first filed), this new case in New Jersey has a lot going for it. It is not really asking the courts to break ground; it is simply asking that they refertilize it.