A photo of a school classroom in Newark, New Jersey.
Students at their desks at Newark Prep Charter School in New Jersey. The state's public schools are among the nation's most segregated for black and Latino students. Lucas Jackson/Reuters

Backed by a mix of civil rights groups, the suit represents a rare legal challenge: Since Brown v. Board of Education, most segregation cases have been decided in federal court.

This past May, on the 64th anniversary of Brown v. Board of Education, a coalition of civil rights groups and students sued the state of New Jersey, calling on its leadership to desegregate New Jersey’s public schools. Nearly half of all black and Latino students in the state, roughly 270,000 children, attend schools that are more than 90 percent non-white. According to the UCLA Civil Rights Project, the Garden State ranks as the sixth most segregated state in the U.S. for black students, and seventh for Latinos.

It’s a rare legal challenge: Since Brown, almost all legal attacks on school segregation have been mounted in federal court. New Jersey’s lawsuit is is only the fifth, in four states, to be brought in state court, relying on a state constitution. The U.S. Supreme Court has held that unless it could be shown that a district deliberately sought to discriminate against students by race, it could not be held responsible for school segregation. By taking aim at state constitutions, lawyers hope to avoid these factual questions about intent.

The first such case, filed in Connecticut in 1989, ended with a state Supreme Court decision declaring that racially segregated schools in the Hartford metropolitan region denied students their right to an equal education. Connecticut has been implementing the unusual Sheff v. O’Neill remedy ever since. The second case was filed in Minnesota in 1995, and initially resolved in a settlement; it was refiled in 2015 and is now winding its way through the courts. The third case, which took on segregation in the schools of Rochester, New York, was dismissed in 2000. New Jersey is the fourth state to jump in the fray.*

Already a national leader when it comes to school funding and fair housing litigation, New Jersey’s school segregation suit could cement the state at the forefront of civil rights. But beyond diversifying its public schools and sending a message to other states weighing whether to file their own integration cases, many advocates are hoping New Jersey’s new suit could help leaders address other longstanding, regional planning woes as well.

***

No other state in the country has a legal framework more hospitable to this kind of lawsuit.

Beginning in 1881, the state of New Jersey enacted a statute that banned segregated schooling based on race. A little over 65 years later, New Jersey adopted a state constitutional provision to ban segregation in public schools—the only state constitution to have such an explicit clause.

New Jersey’s court system also took its enforcement responsibilities seriously. In 1944, 10 years before Brown v. Board, a New Jersey court ruled that, given the 1881 statute, it was illegal for a Trenton school board to bar students from enrolling at a school because of their race. In a 1965 case, New Jersey’s high court eliminated the distinction between de jure and de facto segregation—the same distinction that has foiled school segregation lawsuits on the federal level since the mid 1970s. And in a 1971 court decision, Jenkins v. Morristown, New Jersey held that the state’s education commissioner was empowered to mandate the crossing of school district boundary lines to foster racial balance.

While the majority of New Jersey’s school districts are segregated, a few notable exceptions remain, offering what advocates say is evidence of what’s possible. In 1973, following the Jenkins decision, New Jersey’s then-education commissioner, Carl Marburger, ordered the mandatory merging of the urban Morristown school district with its neighboring white suburban Morris Township school district. Marburger later lost his job, facing protest from state senators who attacked the commissioner for supporting busing. The episode discouraged future education commissioners from using their powers to consolidate school districts, but it succeeded in desegrating the Morris School District: Today, the roughly 5,000-student system remains one of the most racially diverse districts in the United States. Two years ago, The New York Times profiled the district, noting that no school within its boundaries was predominately one ethnic or racial group, and that “classrooms in the elementary schools are also carefully calibrated for diversity.”

Another example advocates point to is Montclair, New Jersey. In 1966, a group of parents filed a lawsuit against the district’s racially segregated schools, which led the town to implement busing as a desegregation remedy. When that grew too politically contentious, Montclair tried an alternative: creating themed magnet schools that remain racially diverse to this day.

The plaintiffs to the newly filed lawsuit are not calling for any specific remedy to curb segregation in New Jersey schools, but have endorsed various strategies as “feasible” options, including magnets and inter-district transfers.

***

Despite all the promising legal factors stacked in their favor, news emerged in September that the plaintiffs might opt for a settlement, to avoid litigating the issue in court. “We are encouraged to believe that an amicable resolution is possible,” wrote New Jersey’s attorney general Gurbir Grewal, in a court letter.

The office of New Jersey Governor Phil Murphy referred CityLab’s request for comment to the state Attorney General’s office. “The State is open to settling the matter, and the parties continue to engage in good-faith discussions toward that end,” a spokesperson said.

Directing the New Jersey Coalition for Diverse and Inclusive Schools, a nonprofit supporting the lawsuit, are four civil rights leaders—Gary Stein, a retired judge of the New Jersey Supreme Court; Elise Boddie, a Rutgers law professor; Paul Tractenberg, a retired Rutgers law professor; and Richard Roper, a policy consultant. The head of the coalition is widely recognized to be Stein (whose son is one of two lawyers representing the plaintiffs).

Multiple sources close to the litigation told CityLab that Gary Stein has been the leading internal advocate for settling out of court, though he did not respond to requests for comment. Boddie also declined to comment.

In an interview, Tractenberg demurred on the question of settling. “There have been some meetings and discussions between the plaintiffs and the staff, and I assume there will be some future discussion,” he said. “Whether it leads to any place productive, I think it’s too early to say.”

But some other civil rights advocates in the state are critical of the idea of settling the case. “They’d be crazy to settle,” said Paul Scully, the executive director of Building One America, a civil rights organizing group based in New Jersey. “Settling without a court ruling that says the state is in violation of the law will take away the political cover the legislature will need to do anything significant.”

Scully sees a settlement as both a loss to the plaintiffs, who would be sacrificing a ruling they are likely to win if they proceeded through the courts, and a mistake for the governor, who would look like he’s pleading guilty and giving the state away. “Nothing these people can come up with without a court order will be meaningful, and they won’t be able to get anything done without doing this through the legislature,” he said.

In the mid-2000s, Scully helped lead a successful organizing effort of New Jersey clergy and community activists to push legislators to back a more robust state fair housing law. The law was borne originally out of a New Jersey state Supreme Court decision from the 1980s that said all towns must provide affordable homes for poor and working-class residents. And while Building One America has been trying to create a similar political organizing track for this school integration lawsuit, Scully says the lawyers leading the effort have been uninterested in coordinating a strategy.

“Organizers and lawyers both have our own blunt instruments that we like to hit people over the head with.” he said. “The lawyers think our type is uncivilized, but a lot of us think their type is pretty bad too. These guys have no idea how what they’re doing can cause a massive backlash, but they think being low-key and having no drama is better for [Governor Phil] Murphy, as opposed to letting the courts decide and then doing it big and bold.”

The two approaches reflects a fundamental disagreement over tactics, says Myron Orfield, a civil rights law professor at the University of Minnesota. “Too many civil rights lawyers don’t believe in politics, don’t understand politics, and that’s why their cases often have such limited systemic remedies.” Lawsuits, Orfield insists, are essential to “destabilizing the status quo.” But without a coordinated legislative strategy, “it’s extremely hard” to actually get anything done.  

Scully and Orfield both point to the makeup of New Jersey’s political establishment as a golden opportunity for school integration advocates. Most of the state’s population—and its elected Democratic officials—hail from diverse, working-class suburbs. Scully thinks the key to building support for this lawsuit is bringing those leaders on board. “The segregated urban areas in New Jersey represent a very small portion of the state with very little political power,” he said. “Focusing on them as the problem, or the solution, is a big mistake. We’ve identified about 130 districts across New Jersey moving from segregation to diversity, and in some cases toward re-segregation. It’s a swath of the state that we think is powerful, and should be organized.”

“Democrats control all three branches of government, and that always tends to help,” said Orfield. “I’ve never seen a state map where the politics align so nicely with a metropolitan remedy.”

***

Could a statewide school integration lawsuit work in concert with New Jersey’s landmark fair housing rules?

As a result of a series of court decisions broadly referred to as the Mount Laurel doctrine, New Jersey limits exclusionary zoning and mandates all areas build their “fair share” of affordable housing. Progress was exceedingly slow in implementing the remedy. But in recent years—thanks in part to political organizing led by Scully—tens of thousands of affordable homes have been constructed in areas that otherwise would have avoided doing so.

Kevin Walsh, the executive director of New Jersey’s Fair Share Housing Center—which helps lead enforcement of the Mount Laurel remedy—said he does see the two lawsuits as complementary, united by a belief that separate is not equal.  “Mount Laurel is working well after a tough 15 years where there were fits and starts,” said Walsh. “But to really desegregate the state you’ll need housing and schools.” A study conducted by sociologists Rebeccca Casciano and Douglas Massey at Princeton found that low-income residents who moved into a Mount Laurel-subsidized housing development as a result of the fair housing litigation attended schools of significantly higher quality.

Walsh said the prospects for a successful school segregation lawsuit also bode well, because New Jersey has “a good, independent judiciary” that has the political space to truly enforce civil rights. New Jersey’s judiciary consists of appointed judges, who, after seven years, are evaluated and can then be tenured until age 70.

A court ruling that forces the state legislature to come up with a remedy could also help New Jersey tackle some of its longstanding regional fragmentation issues.

New Jersey is a state comprised of a bunch of small towns, and in many cases even smaller school districts. While Pennsylvania has roughly 2,500 municipalities, it has 500 school districts statewide. New Jersey, by contrast, has 565 municipalities and almost 700 school districts. States like Maryland and Virginia have county-wide school districts. At a policy conference on school consolidation in 2017, organizers noted that while the number of school districts across the United States had declined by almost 90 percent between 1939 and 2013 (from 119,000 to 13,500), the number of school districts in New Jersey increased by over 20 percent in that same period.

Consolidating districts like these would not only help diversify the student population, but could also help communities reduce administrative costs and achieve economies of scale. A Center for American Progress study estimated New Jersey loses about $100 million per year to maintain its tiny school districts, or about $1,000 per classroom teacher.

But the politics of ceding local control can prove exceedingly difficult. When Princeton Borough and Princeton Township merged in 2013, that was the first municipal consolidation in the state in 15 years. And, as Philly’s WHYY noted at the time, “it took two very similar communities, one of which completely surrounds the other and which already shared a regional school district and planning board, four tries over six decades to accomplish.”

“New Jersey has way too many local governments, and there’s just no statewide policy for any of this,” said Massey, the Princeton sociologist.

The impacts of having such fragmented towns and even smaller fragmented school districts creates challenges not just for racial integration, but also for housing and economic development, as the smart-growth group New Jersey Future has shown.

Schools are typically the largest single expenditure any local Garden State government has to pay for, comprising more than half of all property taxes collected and spent. But the amount raised from an individual home’s property tax also falls far short of the cost it takes to educate any children who live in that home in the public school system.

As a result, said Tim Evans, New Jersey Future’s director of research, many New Jersey municipalities work to avoid building housing fit for families with children, reasoning that to do so would represent a fiscal drain. Instead, towns compete for non-residential malls, gas stations, and office buildings that generate property tax minus the tax-draining kids. “It’s a rational thing to do at the individual municipal level because that’s how you maximize your revenue stream,” said Evans. “Towns do not want families moving in, and there are only so many malls to go around.” By contrast, in places that have county-wide or more consolidated school districts, municipalities are able to more easily avoid that zero-sum fiscal game.

Every person interviewed for this story acknowledged the bleak political incentives for municipal consolidation, while recognizing the growing costs and consequences of maintaining the status quo. Housing prices in New Jersey are going up, as demand far exceeds supply. Evans says there will really be no meaningful fix without state action.

“If the state were to say, ‘We’ve had enough of this, it’s a huge waste of money and it’s causing all types of dysfunctional land-use decisions, so we’re going to mandate you to consolidate,’ municipal leaders would squawk about government interference. But it’s also about time the state did its job and corrected something that’s a state-level problem,” said Evans. “It’s just not something any one municipal leader can fix on their own.”

This past summer, New Jersey Senate President Steve Sweeney said it’s time to get serious about school district consolidation. A state legislative working group released a task force report in August making fiscal recommendations for the state, including merging districts to save hundreds of millions of dollars in administrative costs, and to establish a pilot program for countywide school districts. (Sweeney’s office declined to comment for this story.)

Evans said that a court decision that ordered the state to come up with a solution for integration could also help move this tough legislative process along.

***

Regardless of whether they settle or pursue their case in court, there are still some questions the litigants in the school segregation lawsuit will wrestle with.

The lawsuit makes explicit claims about New Jersey’s charter schools, and the failure of the state’s education commissioner to monitor how those schools can exacerbate segregation. New Jersey’s charter school law has language about the need to minimize racial segregation—one of 14 states to have such a provision.

But Shavar Jeffries, the president of the Democrats for Education Reform, said any suggestion that charters hold blame for present day school segregation is misguided, as charters “are already a response to residentially segregated neighborhoods.” Jeffries adds that school segregation is “a legacy of white supremacy” and charters, which have been around for about two decades, “have been a response to the legacy of white supremacy.” He voiced doubt that there’s political will to truly integrate schools. “The lawsuit could be helpful to move the needle, but I am skeptical that it could lead to the kind of racially integrated school that [creates] educational equity,” he said.

David Sciarra, the executive director of the New Jersey-based Education Law Center, and the lead litigator for a series of landmark school funding cases that brought about huge increases in state aid to poorer New Jersey school districts over the last three decades, said his organization supports the new school integration lawsuit. “The New Jersey Supreme Court has made clear it sees the state as having an affirmative obligation both to make sure that schools have the resources they need to provide an adequate education, and that the state has an affirmative obligation to advance racial balance in our schools,” Sciarra said. “We see these as complementary requirements, and not exclusive of one another.”

Tractenberg, one of the leaders of the lawsuit, said over the course of his career he’s grown more convinced that school funding inequities are tied inextricably to segregated schools. “For too long we’ve accepted the separateness of students, and said we’ll use money to make it’s equal, or better than equal,” he said. “The outcomes improved, but they’ve never fully equalized.”

*CORRECTION: An earlier version of this story failed to mention the 2000 New York State case.  

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