School desegregation lawsuit back in court after four years, judge mulls ruling – Asbury Park Press

TRENTON – Is it the state’s responsibility to fix New Jersey’s decades-old school segregation problem?

That’s the question at the heart of a potentially groundbreaking lawsuit that could alter how students are educated in the Garden State. 

After months of delays and legal challenges, the case was back in Mercer County court Thursday before Superior Court Judge Robert Lougy, who conducted the proceedings via a livestream video.

Lougy offered no immediate decision at the conclusion of nearly three hours of testimony, some of it marred by technical difficulties that required a 10-minute recess at one point in order to improve the livestream quality.

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Fundamentally unconstitutional?

At issue was a request for summary judgement by attorneys for the state of New Jersey, the main defendant in the case brought by a group of organizations led by the Latino Action Network in 2018. The lawsuit seeks a ruling declaring the state’s education system to be fundamentally unconstitutional based on segregation and a directive that the state be charged with finding a solution.

The judge said he would issue a written ruling as soon as possible: “I will do my best to answer the parties’ respective applications in due course.”

The lawsuit — filed on May 17, 2018, the anniversary of the historic 1954 Brown vs. Board of Education ruling — includes a long list of plaintiffs that included the Latino Action Network, New Jersey NAACP, Urban League of Essex County and nine minor students.

It named as defendants the State of New Jersey, the state Department of Education and then-Education Commissioner Lamont Repollet.

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The ‘problem will persist’

Attorney Lawrence Lustberg, lead attorney for the plaintiffs, opened Thursday’s proceedings with an hour-plus presentation that stressed school segregation had been going on too long.

“We in New Jersey finally begin to address a problem we have seen for decades but have done too little about,” he said. “If we do not acknowledge but continue to hide from and ignore this problem we know from history that problem will persist.”

He then cited statistics indicating many public school districts are either predominantly white or predominantly non-white.

He pointed to data from 2015-2016 through 2019-2020 indicating that nearly half of the state’s Black students attend schools that are at least 90% non-white and that nearly 70% of white students attend schools that are at least three-fourths white.

“These numbers make our case,” Lustberg said. “Give people a choice and make opportunities for children to cross district lines to gain a better educational experience.”

‘Severe segregation’

New Jersey has long ranked as having some of the most segregated schools and districts in the nation. A 2017 UCLA study found New Jersey schools had a “severe segregation of black and Hispanic students” and was headed for a “segregated future” with “severe racial stratification and division.” It stated that the schools “are not serving their historical function of bringing newcomers and excluded groups into the mainstream of the society.”

Among the factors at issue in the case is a state residency statute requiring most youngsters to attend schools near their home.

“A lot of the cause of this is a state statute and the (state education) commissioner’s failure to act,” Lustberg said, later noting that “parents, wherever they live, should be able to send their children anywhere” to gain a fair and complete education.

He also stressed that the solution will come only after a “long and difficult and complicated remedial stage.”

Lustberg then cited Dr. Martin Luther King Jr’s famed I Have a Dream speech in which King said he dreamed of a day when his children would be judged “not by the color of their skin but by the content of their character.”

“This case is about the embodiment of that dream in New Jersey today,” he said.

Whose responsibility?

Deputy Attorney General Christopher Weber, speaking on behalf of the state, claimed that the plaintiffs had failed to provide proof that the problem is the responsibility of the state to remediate.

“They refuse to step away from a small sample of residential data,” Weber said of the plaintiffs, noting they rely on data from 23 districts. “They refuse to explore how or why the state defendants may be liable or what the (state education) commissioner could or should have done.”

“The plaintiffs want to leave the courtroom with an order holding the state liable…without actually having to participate in the arduous process” of looking at how education is provided statewide.

He added that “they have not provided a single example of raw statistical data alone” that places the liability on the state.

“It requires an analysis of the impact of parent choice, private school placement and if students have access to facilities, funding and resources,” Weber said. “You have to take a holistic view of the entirety of the thorough and efficient (education) clause.”

He also said the plaintiffs need to provide a specific remedy to the problem, which the lawsuit does not indicate, although it provides a list of potential solutions.

“You have to identify the remedies,” Weber said. “In order to establish where segregation exists, plaintiffs needed to do the hard work up front in order to determine where liability exists. You can only identify the liability by identifying the remedy.”

Ways to improve

The original lawsuit cited three likely options that could improve the situation: magnet schools, which draw from a wide range of students beyond the local district; inter-district desegregation, which allows students to attend a school outside of their home district; and regionalization, consolidating or combining existing districts into fewer, larger districts.

During the hearing, attorneys and Lougy also referred to several past cases, as well as Brown vs. Board of Education. Judge Lougy raised that case in his questioning of Lustberg.

“In the decades since Brown, why is this the first case to raise a statewide challenge?” he asked Lustberg. “Should that give the court pause?”

Lustberg responded by saying, “New Jersey is unique in terms of the number of districts that we have, in terms of the effect of the schools, in terms of how long it’s gone on and the record it’s created.”

Although the lawsuit was filed in 2018, it has been bogged down in court proceedings for at least the past two years, attorneys said. Plaintiff attorneys have claimed the state and the administration of Gov. Phil Murphy continued to fight the effort rather than recognize the problem and seek a solution.

Murphy’s office has had no comment on the case, citing it as ongoing litigation, while a spokesman for the New Jersey Department of Education also declined comment.

But lawyers for the state in a recent briefing on the case argued that just because de facto segregation exists, it is not necessarily the state’s job to fix it at a society-wide level.

“The state recognizes the innumerable benefits of exposure to different racial, cultural and socioeconomic backgrounds, and acknowledges that there is unquestionably room to improve the current system to further that goal in the context of its constitutional obligation to provide every student in New Jersey with a thorough and efficient education,” the briefing said. “But Plaintiffs’ claims that our system of public education,

by its very nature, violates the constitution, is wholly unsupported by the record on which they rest. Rather than addressing the particular circumstances present in any one school or district, plaintiffs fashioned a statewide challenge based entirely on a limited set of data points relating to a limited number of school districts at a discrete point in time.”

“Implicit in this argument is the suggestion that any apparent disproportion in the racial or socioeconomic composition of a small number of public school districts is sufficient, on its own, to find that the state has violated the constitution across the entire state,” they continued.

Much of the school segregation is not due to specific efforts to keep schools racially divided as was done in the south decades ago, experts say. Rather, it dates back to the first housing expansion of New Jersey, particularly the suburbs, in the 1950s and 1960s.

New Jersey’s constitution, enacted in 1947, seven years before the Brown decision, explicitly forbid segregation in the public schools. Yet that provision and the state’s anti-discrimination laws failed to halt the steady, decades-long creep of de facto segregation. 

Experts point to a number of factors including the rapid growth of suburbs after World War II, which drew generations of white families from the cities, exclusionary zoning practices and racist “redlining” schemes.

Joe Strupp is an award-winning journalist with 30 years’ experience who covers education and several local communities for APP.com and the Asbury Park Press. He is also the author of three books, including Killing Journalism on the state of the news media, and an adjunct media professor at Rutgers University and Fairleigh Dickinson University. Reach him at jstrupp@gannettnj.com and at 732-413-3840. Follow him on Twitter at @joestrupp