The New Jersey Supreme Court declined, for now, to take on a major case that alleges New Jersey’s public school system is racially and socioeconomically segregated. The conflict, meanwhile, is drawing more national voices to the legal arguments.
The order, issued by Chief Justice Stuart Rabner last week, was a significant blow to the plaintiffs who had hoped to expedite the proceeding. Filed in 2018, the case is being fought under a second governor and a fourth state education commissioner — yet the position of the state, which is the defendant, has remained unchanged.
“We are obviously disappointed,” Lawrence Lustberg, a lead attorney for the plaintiffs, told NJ Spotlight News in response to the court’s order. “Only because this is such an important case and because any delay hurts New Jersey’s children.”
The office of State Attorney General Jennifer Davenport had no comment on Wednesday.
The order came without prejudice, meaning the parties could try to bring the case before the state Supreme Court again after the appeals court proceedings play out — which could take years.
National housing advocacy groups and New Jersey’s largest teachers union in recent weeks filed legal arguments in support of the plaintiffs as friends of the court, meaning they aren’t direct parties but can legally provide arguments.
The case remains one of the few of its kind nationally and the first in New Jersey that targets systemic statewide segregation.
Nine students
The plaintiffs are a coalition of the Latino Action Network and other social justice groups in addition to the families of nine students who attended public schools in highly segregated towns.
They filed a motion in March for direct certification that sought the state Supreme Court to weigh in prior to review by an appellate panel. The plaintiffs argued the case warrants urgency to “reduce by years” the time it likely will take to reach a resolution. Delayed justice, they said, is keeping children in unconstitutionally segregated schools.
New Jersey’s constitution is explicit in its ban on school segregation and orders a state-provided “thorough and efficient” education.
The plaintiffs argue that the state’s public school system violates those codes and knowingly allows segregation to persist in part due to policies such as home rule, which compels students to attend schools within their zip code.
The plaintiffs identified 23 school districts with enrollment of Latino and Black students above 90% and with high proportions of students who qualify for free or reduced-price lunch. The towns included Newark, Orange and Irvington.
Continuing in the line of arguments established under Gov. Mikie Sherrill’s predecessor, Attorney General Jennifer Davenport argued in March court records that some schools’ racial imbalance is due to “countless factors” outside state control. Among them, Davenport added, is “parental choice regarding where to live and whether to send their children to private schools.”
The Attorney General’s Office represents the defendants, which includes the state Board of Education and Education Commissioner Lily Laux.
Failed mediation
New Jersey has some of the nation’s highest segregation rates for Black and Latino students, say the plaintiffs, citing studies by the Civil Rights Project of the University of California at Los Angeles.
In fall 2023, a trial court issued a mixed ruling that prompted mediation discussions that failed after roughly 18 months.
“We strongly believe that the facts will bear out our legal theory that far too many of New Jersey’s elementary and secondary schools are unconstitutionally segregated,” Lustberg said in an email on Tuesday. “We will now prevail in the Appellate Division.”
In another signal that highlights the nationwide magnitude of the case, around 10 state and national organizations have filed amici curiae briefs in support of the plaintiffs.
Most of those filings were submitted within the last two months and include arguments from the New Jersey Education Association, Fair Share Housing Center, National Coalition on School Diversity, American Civil Liberties Union of New Jersey, Brown’s Promise and Georgetown University Law Center’s Reel Policy Clinic.
‘Should not shrink’
“New Jersey should not shrink from acting just because the specific remedy has not been devised, or because the allegations appear too sweeping and their implications too large,” the New Jersey Education Association’s court record states. “The long-running statistical data and social science reports are clear and unmistakable in concluding that New Jersey has settled into a pattern of racial and economic segregation.”
Attorneys from Seton Hall University School of Law’s Center for Social Justice represent Fair Share Housing Center and other national housing advocacy groups. They argued that the trial court’s mixed ruling in the fall of 2023 is flawed.
“The state — and not any specific municipality — is the only responsible party for entrenched inter-municipal school segregation, even if that segregation is most obvious in under-resourced Black and Latino communities,” that argument stated.
