In a recent pre-trial decision, a New Jersey superior court judge recently ruled that the state has systematically failed to address the problem of racial segregation that exists in its public schools.
The state’s central argument is that the public education system is socioeconomically segregated and that racial segregation exists across every district. Essentially, they’re saying that it’s not the state’s fault if most (or none) of the people in a particular district or school are poor or if all the poor people in those districts and schools happen to be people of color. They shouldn’t be held responsible for the segregation that is occurring because it’s not deliberate, it’s just an unfortunate side effect of socioeconomic segregation. The judge, however, rejected their defense, finding that the state’s policies, actions, and programs “have failed to remedy the racial segregation evident in numerous school districts throughout New Jersey.”
This kind of segregation is not unique in the U.S. What is unique is New Jersey’s constitution, which explicitly banned school segregation in 1947 — before Brown v. Board. The precise language of the New Jersey Constitution 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. In spite of this, New Jersey has some of the most segregated schools in the country and they’ve been growing more segregated over the last few decades. As of 2018, when the lawsuit was filed, 25% of Black students in the state attended a public school that is 99% or more minority. Another 25% attended public schools in which the percentage of Black and Latino students exceeded 90%. Almost two thirds attended a school that was 80% or more non-White. Fifty-nine percent (59%) of Latino students attended schools that were more than 80% non-White.
The crux of the plaintiffs’ lawsuit argues that the state is responsible for “unlawful, persistent, and pervasive” segregation, that their policies and program resulted in this high degree of segregation, and that they are in violation of the state’s constitution. The judge agreed, but maybe not as resoundingly as plaintiffs had hoped. He wrote: “While plaintiffs have not demonstrated that the entire system is constitutionally repugnant, that shortcoming may be a question of scale, and defendants fail to prove that they are entitled to judgment as a matter of law.” He also didn’t agree with plaintiffs that the state violated equal protection laws by failing to prevent segregation based on socioeconomic background. I think plaintiffs’ argument here is that the state could have foretold fairly easily that socioeconomic segregation was going to lead to racial segregation and didn’t attempt to protect Black and brown students from this practice. The judge disagreed, but he did affirm that the state’s defense (they they bear no responsibility for the racial segregation) failed “on both legal and factual ground,” calling it “unpersuasive.” He also stated that New Jersey has a constitutional obligation to address the problem.
What the judge didn’t say is almost as interesting: he didn’t specify what the state should do next. The entire ruling was more of an acknowledgement of the problem and which parts the state was culpable for. Plaintiffs now must decide whether to proceed to trial, start negotiations, or file an appeal.
I ran across a law professor’s blog* from 2018, analyzing the merits of the case. He noted that over the last 60 years, New Jersey’s Supreme Court has repeatedly upheld the segregation ban in its constitution and deplored all forms of school segregation, including de facto segregation that is an unintended consequence of other actions. It has consistently ruled in favor of plaintiffs, holding that the state was responsible for addressing segregation no matter what had caused it. That means the current case isn’t asking the courts to break new ground or overturn precedent, it’s asking them to hold the state accountable to obey the constitutional ban. I think the bigger question here is what the courts will direct the state to do to fix the problem. This is just a pre-trial decision; actual legal remedy will be decided either in court or through negotiation.
This one bears watching. It may have a profound impact on New Jersey’s schools.
*Written by Derek W. Black, a professor at the University of South Carolina Law School where he teaches constitutional law, civil rights, and education law. I normally don’t use blogs as resources without a lot of caveats, but in this instance, I think he probably knows what he’s talking about.