Originally published in CityLab on January 3, 2019.
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.
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.
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.
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.
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.
“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.”
“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.”
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.
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.
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.
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.”