Jenkins v. Township of Morris School District and Board of Education Brief for Appellants
Public Court Documents
February 23, 1971
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Brief Collection, LDF Court Filings. Jenkins v. Township of Morris School District and Board of Education Brief for Appellants, 1971. 39596aad-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/188bc880-ce34-471c-8a17-1f2d2ff5fc03/jenkins-v-township-of-morris-school-district-and-board-of-education-brief-for-appellants. Accessed May 01, 2025.
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BEATRICE M. JENKINS, et al.,
Petitioners-Appellants,
vs.
THE TOWNSHIP OF MORRIS SCHOOL DISTRICT
AND BOARD OF EDUCATION,
Defendant-Respondent,
and
THE TOWN OF MORRISTOWN SCHOOL DISTRICT
AND BOARD OF EDUCATION,
Defendant and Cross-
Petitioner-Appellant,-
and
THE BOROUGH OF MORRIS PLAINS BOARD OF
EDUCATION,
Defendant and Cross-Petitioner.
CIVIL ACTIONS—On Appeal from Decision of Commissioner of
State Board of Education—Direct Certification.
BRIEF FOR APPELLANTS
MacK enzie & H arding,
Attorneys for Appellants, Beatrice M.
Jenkins, et al.,
32 Washington Street,
Morristown, New Jersey, 07960.
F rank F . H arding,
Of Counsel.
S tephen B. W iley,
Attorney for Appellant, Morristown
Board of Education,
250 Madison Avenue,
Morristown, New Jersey, 07960.
D onald M. Malehorn,
F rank F . H arding,
On the Brief.
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A d a s* Prc;a Corp., 11 Commerce Street, Newark, N. J .— Market 1-3611*12
TABLE OF CONTENTS
FA.GB
P rocedural H istory ............................................................ 1
S tatement of F acts ............................................................ 3
I—Summary of facts as found by hearing officer
and adopted by the Commissioner.................. 3
H—Outline of witnesses.......................................... 5
A. Studies and Reports of Morristown’s Two
Key Expert Witnesses .............................. 5
B. Outline of Other Witnesses Who Testi
fied at Hearing ............................................ 7
1. For the Petitioners ............................... 8
2. For the Town ........................................ 8
3. For Morris Plains ................................. 9
4. For the Township.................................. 9
III—Morristown and Morris Township as a single
community ........................................................ 10
A. Geographic and Physical Features ............ 10
B. Town-Township Boundary Line ................. 10
C. Interrelatedness of the Town and Town
ship in General ............................................ 11
1). Communities and Municipalities Surround
ing Morris Township.................................. 13
E. One Community Defined ............................. 13
FV7—Socio-economic and population differences be
tween Morristown and Morris Township....... 15
A. Housing ................................................ 15
u TABLE OF CONTENTS
PAGE
B. Population ............................................ 17
(1 ) Morristown Population (Including
School Population) ............................. 18
(2) Morris Township Population (Includ
ing School Population) ....................... 19
V—The present Morristown-Morris Township
school systems ................................................... 21
A. In General .................................................. 21
B. Existing Sending-Receiving Relationships 23
1. Morris Plains and Harding Township 23
2. Morristown and Morris Township ....... 24
C. Sufficiency of Facilities .............................. 25
VI—Morris Township’s non-binding referendum .. 26
VII—Impact of withdrawal of Morris Township .... 27
A. Commissioner’s General Findings ............ 27
B. Underlying Proofs ...................................... 29
1 . Racial Imbalance .................................. 29
2. Socio-Economic Mix ............................. 31
3. Resulting Unit Size ............................... 32
4. Indirect Impact Through Resulting
General Population Change .................. 35
5. Financial Impact .................................. 36
VIII—Alternatives to Withdrawal other than K-12
merger ................................................................ 33
IX—Feasibility of merger ...................................... 39
X—Proposed High School not consistent with
merger ................................................................ 41
XI—Impact of failure to merge ................... 42
PAGE
A rgument :
I—Racial imbalance in the Morristown area
community schools requires school merger
as a constitutional r ig h t............................... 43
A. Thorough and Efficient System ............ . 45
B. Rationale of Booker................................ 50
C. Treatment of School District Boundary
Lines ........................................ ............... 57
15. The Morristown. Area Community as
the Unit ................................................... 6S
1. Considerations relating to neighbor
hood policy.......................................... 72
2. Considerations relating to costs....... 74
3. Trends towards withdrawal from the
school community by members of Hie
majority .............................................. 75
4. Reasonableness of community plan .. 76
II—The designation of Morristown High School
cannot be withdrawn without Department
of Education approval ................................... 79
A. The Facts and the Issue ......................... 79
B. The Sending-Receiving Statutes ............... 79
The Commissioner’s E rro rs ......................... 81
1. Department Position on “With
drawal” ............................................... 81
2. “Lack” of Facilities and N.J.S. ISA:
45-1 ....................................................... 86
TABLE OF CONTENTS i i i
IV TABLE OF CONTENTS
PAGE
III—The Department has other unperceived
powers to deal with this situation .............. 89
A. N.J.S. 18A:6-9: Determining Contro
versies and Disputes ............................... S9
1. As a decision-making process, the
determination to •withdraw and re
fusal to merge were unjustifiable ..... 90
2. The decision to withdraw and re
fusal to merge will result in such
great harm to Morristown that it
should be set aside as unreasonable 93
B. N.J.S. 18A:45-1; Consent to New High
School Required ...................................... 98
C. N.J.S. 18A:18-2; Approval of Plans and
Specifications ............................. 100
D. N.J.S. 18A:13-34; Formation of a Re
gional District .......................................... 101
E. N.J.S. 18A:39-1, 38-3; 38-8, 9; exchang
ing students, a feasible last reso rt........ 102
F. N.J.S. 18A :4-10; 4-15; 4-16; 4-22; 4-23;
4-24: Sweeping Administrative Powers.. 103
G. N.J.S. 18A:55-2 State Aid Withholding- 105
Conclusion .................................................................... 106
C ases Cited
Andrews v. Ocean Twp. Board of Adjustment, 30
N. J. 245 (1959).......................................................... 96
Barksdale v. Springfield School Committee, 237 F.
Supp. 543 (D. Mass. 1965), vacated on other
grounds, 348 F. 2d 261 (1st C’ir. 1965)....................54,55
TABLE OF CONTENTS V
PAGE
Barone v. Township of Bridgewater, 45 N. J. 224
(1965) ............................... '........................................ 98
Board of Education, East Brunswick v. Township
Council, East Brunswick, 4S N. J. 94 (1966).....45,46,50
Board of Education of Elizabeth v. City Council
of Elizabeth, 55 N. J. 501 (1970)......................... 47,48,50
Board of Education of the Town of Newton v.
Board of Education of the High Point Regional
High School District, etc., 1966 S.L.D. 144..............85-87
Booker v. Board of Education Plainfield, 45 N. J.
161 (1965)..............44, 45, 51-54, 56, 66, 71, 72, 78, 98, 104
Borough of Cresskill v. Borough of Dumont, 15 N. J.
238 (1954)................................................................... 97
Borough of Roselle Park v. Township of Union, 113
N. J. Super. 87 (Law Div. 1970)............................... 9S
Bradley v. Milliken, 443 F. 2d 897 (6th Cir. 1970)..... 89
Bradley v. School Bd. of City of Richmond, Civ. No.
3353 (E. D. Va., Feb. 10, 1971)................................ 67
Brewer v. School Board of City of Norfolk, 397 F.
2d 37 (4th Cir. 1968)................................................. 51
Brown v. Board of Education, 347 U. S. 483 (1954)..57,59
Burleson v. County Board of Election Commission
ers of Jefferson County, 308 F. Supp. 352 (E. I).
Ark.), aff’d per curiam, 432 F. 2d 1356 (8th Cir.
1970) ................................................................61, 65, 66, S9
Crawford v. Board of Educ. of Los Angeles, No. 822
(Super. Ct. Cal., Feb. 11, 1970)............................. 51
Cooper v. Aaron, 358 U. S. 1 (1958)............................. 57
Cullum v. North Bergen Board of Education, 1952-
53 S.L.D. 62, aff’d. 27 N. J. Super. 243 (App. Div.
1953), aff’d, 15 N. J. 285 (1954).................................92, 94
VI TABLE OF CONTENTS
PA 03
Davis v. School Dist. of City of Pontiac, 309 F.
Supp. 734 (E. D. Mich. 1970)......... ........._............... 51
Duff con Concrete Products, Inc. v. Borough of Cress-
kill, 1 N. J. 509 (1949)............................................... 95,96
Durgin v. Brown, 37 N. J. 189 (1962)......................... 94,95
Fisher v. Board of Education of the City of Orange,
1963 S.L.D. 123....,............................... ...... ...............43,44
Godwin v. Johnston County Bd. of Educ., 301 F.
Supp. 1339 (E. D. N. C. 1969).................................. 62
Gomillion v. Lightfoot, 364 U. S. 339 (1960).............. 59
Grogan v. DeSapio, 11 N. J. 30S (1953)..................... 94
Gunsberg v. Board of Education of Teaneek, Bergen
County, 1961-62 S.L.D. 163....................................... 90
Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E. D. La.), aff’d, 287 F. 2d 376 (5th Cir.
1961), aff’d mem., 36S U. S. 515 (1962).................... 58
Haney v. County Board of Education, Sevier County,
410* F. 2d 920 (8th Cir. 1969)................................. 1 61
Haney v. County Bd. of Educ., 429 F. 2d 364 (Sth
Cir. 1970)..................................................................... 67
Hertz Washmobile System v. Village of South
Orange, 41 N. J. Super. 110 (Law Div. 1956), aff’d,
25 N. J. 207 (1957).....................................................93,94
Hunter v. Erickson, 393 U. S. 385 (1969)................... 89
Jackman v. Bodine, 49 N. J. 406 (1967)..................... 60
Jackson v. Pasadena City School Dist., 59 Cal. 2d
876, 31 Cal. Rptr. 606, 82 P. 2d 878 (1963).............. 55
Jones v. Falcey, 48 N. J. 25 (1966)..................... ......... 60
TABLE OF CONTENTS VII
PAGE
Keyes v. School District No. 1, Denver, 303 F. Snpp.
279 (D. Colo. 1969).....................................................62,89
Kozesnik v. Township of Montgomery, 24 N. J. 154
(1957) ............. 96
Kunzler v. Hoffman, 43S N. J. 277 (1966).................. 96
Laba v. Newark Board of Education, 23 N. J. 364
(1957) ......................................................................... 104
Lumpkin v. Dempsey, Civ. No. 13,716 (D. Conn.,
Jan. 22, 1971).............. ................................................ 5S
Marburv v. Madison, 1 Cranch 137 (1803).................. 68
Masiello, In re, 25 N. J. 590 (1958)..................44, 90, 98,104
Morean v. Board of Education, Montclair, 42 N. J.
237 (1964).................................................................... 72
N. J. Good Humor v. Board of Commissioners of
Borough of Bradley Beach, 124 N. J. L. 162 (E. &
A. 1940)....................................................................... 94
Paulsboro Community Action Committee v. Board
of Education of Borough of Paulsboro (April 22,
1969) ................................................ 44,54
Reitman v. Mulkey, 3S7 U. S. 369 (1967)..................... 89
Reynolds v. Sims, 377 IT. S. 533 (1964)......................... 59
Rice, et ah v. Board of Education of Montclair, 1967
S.L.D. 312................................................................... 44, 54
Schults v. Board of Education, Teaneck, 86 N. J.
Super. 29 (App. Div. 1964), aff’d mem., 45 N. J.
2 (1965)....................................................................... 45
Scotch Plains Township v. Westfield, 83 N. J. Super.
323 (Law Div. 196*1)..................................................... 97
Shelley v. Kraemer, 334 TJ. S. 1 (1948)............... . ...89,100
vm TABLE OF CONTENTS
PAGE
Spangler v. Pasadena City Board of Educ., 311 F.
Supp. 501 (E. D. Cal. 1970)...................................... 51
Termination or Modification of the Sending-Receiv
ing Relationship between the Board of Education
of Chatham Borough, In the Matter of the, 1961-
62 S.L.D. 144 (1962)...................................................82,87
Thomas v. Morris Township Board of Education,
1962 S.L.D. 106, aff’d, 89 N. J. Super. 327 (App.
Div. 1965), aff’d, 46 N. J. 581 (1966)....................... 92
Turner v. Warren County Board of Education, 313
F. Supp. 380 (E. D. N. C. 1970).........................61,64,89
U. S. v. Bright Star School District No. 6, Civ. No.
T-69-C-24 (W. D. Ark., April 15, 1970)................... 61
United States v. Georgia, Civ. No. 12972 (N. D. Ga.,
Dec. 15, 1969).............................................................. 62
U. S. v. Halifax County Board of Education, 314 F.
Supp. 65 (E. D. N. C. 1970)..................................... 61,63
U. S. v. Texas, Civ. No. 1424 (E. D. Tex., Dec. 4,
1970) ........................................................................... 61,62
United States v. School Dist. No. 151, 404 F. 2d 1125
(7th Cir. 1968), 432 F. 2d 1147 (7th Cir. .1970)....... 51
Vetere v. Allen, 41 Misc. 2d 200, 245 N. Y. S. 2d
682 (Sup. Ct. 1963), modified, Vetere v. Mitchell,
21 A. D. 2d 561, 251 N. Y. S. 2d 480 (1964) aff’d,
Vetere v. Allen, 15 N. Y. 2d 259, 258 N. Y. S. 2d
77, 206 N. E. 2d 174 (1965), cert, denied, 3S2 IJ. S.
825 (1965)................................................................... 56
Washington Township v. Ridgewood Village. 26
N. J. 578 (1958).............................................. 98
Withdrawal of Students of the Borough of Haw
thorne from Central High School, Paterson, New
Jersey, In the Matter of the, 193S S.L.D. 665
(1933) ...........................................................................84-86
PAGE
Wright v. County School Board of Greensville Coun
ty, 309 F. Supp. 671 (E. D. Va. 1970)......................61,64
United States Constitution Cited
Fourteen tli Amendment ................................................ 57
New Jersey Constitution Cited
Article 1, paragraph 5 ............................................43,52,57
Article 8, Section 4 ............. ....................................... .43, 50
Statutes Cited
Congressional District Act of 1966 ............................. 60
L. 1929, c. 281 .............................................................. 85
L. 1933, c. 301 .............................................................. 85
L. 1956, c. 68 ................................................................ 84
N.J.S. ISA :2-l ............................................. 99,103
N.J.S. 18A :4-10.............................................................. 103
N.J.S. ISA :4-15.............................................................. 103
N.J.S. ISA :4-16 .................................................... .......... 103
N.J.S. ISA :4-22.............................................................. 103
N.J.S. 18A :4-23........................ 103,104
N.J.S. 18A :4-24............................................. 103,104
N.J.S. 18A :6-9 ..........................................................89, 92, 9S
N.J.S. 18A :8-l.................................................................. 58, 61
N.J.S. lSA:13-5.............................................................. 73
N.J.S. ISA:! 3-34 ................................................... 71,76,101
N.J.S. 1SA-.1S-2.............................................................. 100
N.J.S. ISA :33-l................. 56
TABLE OF CONTENTS ix
X TABLE OF CONTENTS
N.J.S. 18A :38-3 ..........
PAGE
........ ................ 102
N.J.S. 18A:38-8 ............ ......................... 102
N.J.S. 18A:38-9........... ......................... 102
N.J.S. 18A:38-11 .......... ............ 79, SO, 86, 87
N.J.S. 18A :38-12......... ......................... 80
N.J.S. 18A :38-13 ........ ..........79-84, 86-88, 99
N.J.S. 18A :38-20 ......... ................ 80, 81, 83
N.J.S. 18A :38-21 ......... ....................80, 81, 83
N.J.S. 18A :38-23 ......... ......................... 83
N.J.S. 18A:39-1 .......... .......................... 102
N.J.S. 18A:45-1........... .............. 86-89, 98, 99
N.J.S. 18A :55-2........... ......................... 105
R.S. 18:14-7 ................. ......................... 82, 87
R.S. 18:14-7.3 ............. ......................... 83
R.S. 18:14.7.4............... ..........................83, 84
R.S. 41:1-1 .............. . ..........................45, 68
O ther A uth orities Cited
Blumrosen, “Antidiscrimination Laws in Action in
New Jersey: A Law—Sociology Study”, 19 Rut
gers L. Rev. (1965):
1S9, 267 .................................................................... 56
Coleman Report, Ecpiality of Educational Opportun
ity (1966) .................................................................... 76
Kirp, “The Poor, the Schools and Equal Protection,”
in Equal Educational Opportunity (1969):
139 ........................................................................... 60
TABLE OF CONTENTS 33
TAGS
Note, “Racial Imbalance and Municipal Boundaries
—Educational Crisis in Morristown,” 24 Rutgers
L. Rev. (1970):
354 ....................................... ................................... 57
1 United States Commission on Civil Rights, Racial
Isolation in the Public Schools (1967):
p. 3 8 .......................................................................... 76
p. 259 ........................................................................ 58
Wright, “Public School Desegregation: Legal Reme
dies for De Facto Segregation,” 40 N. Y. U. L.
Rev. (1965):
285 .......... 60
Procedural History
On October 28, 1968, this suit was started by petition
of five Morris Township and three Morristown residents,
seven of whom have children attending public schools in
Morristown or Morris Township. The defendants were
four Boards of Education—Morristown, Morris Township,
Morris Plains, and Harding Township,* the latter three
districts sending high school students to Morristown High
School. The petition was filed with the Commissioner of
Education and sought various forms of relief related to
the combining of Morristown and Morris Township lower
grades and maintenance of integrated schooling at the
high school level.
Morristown by its answer and cross-petition sought a
complete Iv-12 merger of Morristown and Morris Tow -
ship schools and, alternatively, sought to prevent Morris
Township from withdrawing its students from Morristown
High School.
Morris Plains by its answer and cross-petition sought a
regionalization of schools at the high school level and
joined in the request to prevent the withdrawal of Mor
ris Township students from Morristown High School.
Harding also sought to prevent the withdrawal of the
Morris Township high school students, but upon consent
of all other parties, Harding was permitted to withdraw
from the case.
Morristown next moved for various forms of prelim
inary relief, including an interim restraint against Morris
Township from holding a referendum, scheduled for March
27, 1969, to authorize capital expenditures for a new high
* These school districts and Boards of Education are here
after normally identified just as “ Morristown” (or “ Town” ),
“ Morris Township” (or “ Township” ), “ Morris Plains” and
“ Harding” .
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20
30
40
10
20
30
10
2
school, and Morris Township moved for judgment on the
pleadings. On March 21, 1969, the Commissioner denied
Morris Township’s motion for judgment on the pleadings
and granted Morristown’s motion to restrain the refer
endum pending a full hearing.*
Hearings were conducted before a hearing officer ap
pointed by the Commissioner on 15 dates in October, No
vember and December, 1969. Post-hearing briefs were
filed and the Commissioner rendered his final decision on
November 30, 1970. The Commissioner found the facts
in accordance Avith Petitioners and Morristown’s allega
tions but held he had no authority to act Avith respect to
either withdraAval or merger. He therefore dismissed the
petition, the cross-petition of MorristoAvn and the cross-
petition of Morris Plains and lifted the referendum re
straint. Morris Township then scheduled a neAv high
school debt referendum for March 4, 1971.
Petitioners and Morristown appealed the Commission
er’s decision to the State Board of Education and peti
tioned this Court for certification.
On January 20, 1971, this Court denied the request for
certification without prejudice to reapplication folloAving
the filing of a motion for leave to appeal in the Appellate
Division, provided the State Board of Education “has not
decided the matter by February 5, 1971”. This matter Avas
not decided by the State Board by February 5, 1971, and
Petitioners and Morristown then filed a motion for leave
to appeal Avith the Appellate Division, and simultaneously
reapplied to this Court for certification and for a stay of
the referendum scheduled for March 4, 1971.
* On appeal from the restraint directly to the Appellate Divi
sion that Court, in an unpublished opinion, Civ. No. Am-215-68,
affirmed 2-1. Morris Township sought review before this Court
and Avas scheduled to be heard informally, but discontinued its
appeal because the referendum date was at hand.
3
Certification and a stay of the referendum were granted
by this Court on February 23, 1971.
Statement of Facts
I. Summary of facts as found by hearing officer
and adopted by the Commissioner (See Ja 71 to 86).*
Morristown is a compact urban municipality (2.9 square
miles) encircled by Morris Township (15.7 square miles).
Morristown and Morris Township are so interrelated they
form one community. The Town and Township boundary
line does not adhere to natural or physical features, but
cuts across streets, neighborhoods and terrain arbitrarily.
All main roads radiate out from the square in the center
of Morristown into the Township. It is not practicable to
go from most areas of the Township to most other areas
of the Township without going through the Town.
The Town is the social and commercial center of this
single community, while the Township is primarily resi
dential in character-—mostly single family homes—and,
unlike the Town, has considerable undeveloped areas for
additional single family housing.
The black population of this community is centered in
the Town with a slight over-lapping into one non-expand-
able section of the Township. The Town’s black school
population is increasing rapidly and will continue to do
so. The Town elementary schools which are currently
43% black are expected to be predominantly black (70%)
by 1980, while the Township school population which is
now 5% black is expected to remain at that level or lower.
Morristown maintains a complete K-1.2 school system,
and the Township operates a K-9 system. The Town
* The notation “ J a ” is used throughout to denote the Joint
appendix of the individual petitioners-appellants and appellant
Morristown Board of Education.
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30
40
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30
40
4
and Township schools are located in close proximity to the
Town boundary line and to each other. Failure to merge
these two school systems will result in a predominantly
black school system completely surrounded by an almost
exclusively white district. Black neighborhood schools
will be within short walking distances of white neighbor
hood schools.
Morristown is the high school receiving district for
Harding Township, Morris Plains and Morris Township.
Harding adjoins Morris Township to the south; Morris
Plains adjoins Morris Township to the north. Harding
and Morris Plains send their 9th, 10th, lltli and 12th
grade students to Morristown, and operate Iv-S systems.
Morris Township sends its 10th, 11th and 12th grade stu
dents to Morristown High School and operates a K-9 sys
tem.
The sending-receiving relationship between the Town
and Morris Township has been in effect for over 100
years. A ten-year contract between the Town and Morris
Township whereby all 10th, 11th and 12th grade Town
ship students attend Morristown High School will begin
to expire in September 1972, in that the last 10th grade
class to be sent by the Township under the contract will
enter Morristown High School in September, 1971 (stay
ing through graduation in 1974).
Morris Township has served notice on the Town that
it intends to build its own high school to accommodate
all its high school students upon termination of this con
tract with Morristown. This notification followed a “non
binding” referendum conducted by the Township Board of
Education in January, 196S, to determine whether Town
ship voters preferred a K-12 merger with the Town or
the establishment of a separate Township high school.
The Commissioner ruled that the referendum was illegal,
as being’ without authority under school law, and an im
proper abdication of duty by the Township Board since a
5
majority of its members at the time were on record in
favor of merger.
Morristown High Sehooi is an excellent school with an
enrollment as of the dates of the hearing of 1,950. The
hearing officer found that the school can accommodate the
projected high school populations of the four districts
in question through 1974. ^
The hearing officer found that should Morris Town
ship be permitted to withdraw its overwhelmingly white
800 students from Morristown High School, it would have
an immediate adverse educational impact upon that school,
would result in the percentage of black students in the
high school immediately doubling from 14% to 28% (to
44% without Harding and Morris Plains) and by 1980
would reach 35% (56% without Harding and Morris
Plains); and would deny Township high school students
the right to an integrated education.
II. O utline o f w itnesses,
A. S tu d ie s a n d R e p o rts o f M o rris to w n ’s T w o K ey E x p e r t
W itn esse s
Morristown relied heavily upon two extensive studies
which were undertaken at the request of Morristown fol
lowing the commencement of this action. The reports of
both studies were admitted into evidence at the hearing, go
Because of the central importance of these two reports
they are set forth in a separate volume of Appellant’s
Joint Appendix (Ja 207 to 325).
One report was prepared by Candeub. Fleissig and As
sociates, a consulting community planning firm, under the
supervision of Isadore Candeub, President and founder of
the firm and an eminently qualified and nationally known
planning expert (For qualifications of the firm and Mr.
Candeub, see Ja 210 to 217; T 204 to 209). Mr. Candeub 40
10
20
30
40
6
and his firm were asked to investigate and report on (1 )
white-black population projections for both Morristown
and Morris Township through 1980; and (2) the extent
of interrelatedness between Morristown and Morris Town
ship (Ja 21S; T209, 210).
The population projections made by Candeub, Fleissig
and Associates were found reasonable and accepted as
accurate by the Commissioner (Ja 77). Similarly, the
conclusion reached by this Candeub report that Morris
town and Morris Township are so integrally and uniquely
related to one another that they constitute a single com
munity was also found to be true and accepted by the
Commissioner (Ja 80, 81).
The second of these two studies and reports was made
by Engelhardt and Engelhardt, Inc., educational consult
ants, under the supervision of Richard McKinley, vice-
president of the firm. This firm is likewise of national
scope and is particularly well known in New Jersey. It
recently completed a pilot study of school district reor
ganization throughout New Jersey for the “Mancuso
Committee”, the committee appointed in January, 1967 by
the State Board of Education to “study the next steps of
reorganization and consolidation in the school districts
of New Jersey” (Ja 280; T667).
The Engelhardt report concluded that, from an educa
tional standpoint, a withdrawal of Morris Township stu
dents from Morristown High School would have a substan
tial adverse effect upon all students currently attending
the school (Ja 303, 304). Mr. McKinley, in testifying at
the hearing before the Commissioner regarding this re
port, characterized this adverse impact as “disastrous”
insofar as Morristown High School and Town and Town
ship high school students are concerned (T730). The Com
missioner agreed with this conclusion of the Engelhardt
report (Ja 82, 83, 117).
7
The Engelhardt firm also concluded that a K-12 merger
of the Morristown and Morris Township school districts
was entirely feasible, and represented the solution of the
community’s educational needs which afforded the most
educational advantages and opportunities to all students
involved (Ja 310 to 315; T752 to 759). This report fur
ther concluded that a failure to achieve a complete Iv-12
merger would mean inferior educational opportunities for 10
Town students—particularly black students in the Town
elementary grades—because of the increasingly severe ra
cial and socio-economic differences between the Town and
Township (Ja 311; T751, 752). Again, the Commissioner
agreed generally with the Engelhardt firm’s conclusions
regarding the harmful educational effects upon both school
systems—particularly the black students of Morristown—
if merger of the two systems is not achieved (Ja 117).
The Commissioner, in the “conclusion” section of his 20
decision, summarized his findings regarding withdrawal
and merger by expressing concern over two points, as
follows:
“ (1) The adverse educational impact of the pro
posed withdrawal of Township students from Mor
ristown High School because of the resultant reduc
tion in the total number of students at the high
school and the socio-economic disparities between
Town and Township student bodies; and ^
(2) The long-range harmful effects to the two
school systems—particularly to the black Morris
town students, by the maintenance of two separate
school systems in light of the striking racial imbal
ance between the Town and Township student popu
lations.” (Ja 117).
B. O utline of O ther V /itnesses W ho T estified at H earing
For the convenience of the Court in determining the 40
makeup and scope of the case, the following outlines the
8
1. For the Petitioners:
Edward W. Franey, identified photographs of vari
ous scenes in Morristown and Morris Township
(T10 to 13).
Michael J. Barry, dissenting member of the Morris
Township Board of Education, testified to the
10 Board’s activities and his views and knowledge of
the community (T13 to 89).
2. For the Town
Clive. M. Cputts, realtor, described housing, race
factors and housing market trends in the Town and
Township (T92 to 201).
Isadore Candeub, planning consultant, (See Part A;
supra) (T203 to 298).
20 Dr. Harry W. Wenner* Superintendent of Morris
town Public Schools, testified extensively on the facts
of the educational system, history, and the impli
cations of various changes (T299 to 658).
Richard S. McKinley, educational consultant (See
Part A, supra) (T663 to 926).
Ethel Constance Montgomery, President of the Mor
ristown Board of Education, testified on the Board’s
position, her personal knowledge of the community
trends and implications of separation (T974 to
1058).
Nancy Dusenberry, Secretary of the Morristown
Board of Education, explained some of the financial
aspects of merger and withdrawal (T1902 to 1935).
* Dr. AYeuner’s name was misspelled throughout the transcript,
appearing as “ Werner.”
40
9
3. For M orris P lains
Robert F. Strauss, member of Morris Plains Board
of Education, described his Board’s concern (T926
to 970).
4. For the Tow nship
Sheldon Bennett, Secretary and Business Admin- jn
istrator of Morris Township School Board, de
scribed the history of the relationship, the non
binding referendum and the selection of the pro
posed site for the Township high school (T1074 to
1410).
Roger F. Nicholson, member of Morris Township
Board of Education, testified briefly on his role
(T1410 to 1422).
Richard Cadmus, President of the Morris Town- 20
ship Board of Eduaction, testified on his Board’s
position, the non-binding referendum and the ad
vantages of separation (T1422 to 1449).
Munn Reynolds Dodd, realtor, described housing,
race factors and housing market trends in the
Town and Township (T1453 to 1543).
Dr. Ibrahim Elsammak, city planner and urban re
newal consultant, testified eoncei’ning merits of sites
for a high school (T1544 to 1612).
Dr. Ward Young, Superintendent of Schools in
Morris Township, testified extensively on the facts
of the educational system, history and the impli
cations of various changes (T1615 to 1S74).
Dr. Joseph Clayton, Former Deputy Commissioner
of Education of New Jersey, was asked but not
permitted to interpret the various statutes govern
ing the proposed withdrawal (T1S7S to 1899).
•10
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30
40
1 0
III. Morristown and Morris Township as a single
community.
A, G e o g ra p h ic a n d P h y s ic a l F e a tu re s
Morristown and Morris Township are located in north
ern New Jersey in the southern half of Morris County,
approximately 30 miles west of New York City (Ja 219).
High elevations on the west and southwest outer bound
ary of the Township and swampy lowlands on the east
and south outer boundary tend to isolate the Town and
Township from surrounding communities (Ja 221. 222;
T219 to 222).
Morristown is 2.9 square miles and is encircled by Morris
Township, which has an area of 15.7 square miles (Ja 73;
T32, 255). The combined area of the Town and Town
ship forms one compact territorial base (Ja 258; T252).
I t is less than six miles across the Township between its
two most remote points, five and one-half miles from east
to west and four miles north to south (Ja 233).
As found by the Commissioner, road patterns exert a
strong unifying effect upon Morristown and Morris
Township and underscore their interrelatedness (Ja 81).
All major roads crossing through and serving the Town
ship radiate out from and feed into the Green in the
center of Morristown (Ja 81, 232, 233). The topography
of the area dictated the present road locations and made
circumferential routes within the Township impractical
(Ja 232; T219). I t is generally not practicable to get
from one side of the Township to the other without pass
ing through Morristown (Ja 81, 232; T33, 229, 230).
B. T o w n -T o w n sh ip B o u n d a ry L ine
Morristown and Morris Township began in 1740 as a
single municipality and were not separated until 1865
(Ja 81, 229; T224). The boundary line dividing Morris
town and Morris Township is arbitrary (Ja 81. 229, 263;
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30
40
11
T224, 225, 226). It does not follow physical or natural
features (Ja 81, 263; T225). The street pattern of the
Town and Township has virtually no relation to the
boundary (Ja 81, 229; T224, 225). Only three streets fol
low the boundary, and those for short distances, whereas
some forty streets cross the boundary line, making it im
possible to distinguish Morristown from Morris Town
ship visually (Ja 229, 233; T228, 229). Many of the Mor-
ristown-Morris Township neighborhoods are split by this
boundary line (Ja 263; T155, 225, 226). Land uses con
tinue without interruption from Town to Township, with
the zoning plans of the Town and Township complement
ing each other in disregard of the boundary line (Ja 229,
230; T117, 221, 222, 223).
The boundary line has no significance in relation to the
growth pattern of the Morristown-Morris Township com
munity (Ja 230). lake other communities, this community
grew out from the center and population is progressively
less dense moving from the Morristown Green out into
the Township (T221, 222, 223, 224). "While an aerial pho
tograph distinguishes the Town-Township area from sur
rounding communities, it gives no indication of a bound
ary line between the Town and Township (Ja 264; T228,
229).
C. In te r re la te d n e s s o f th e T o w n a n d T o w n sh ip in G e n e ra l
Morristown serves as the commercial, social, institu
tional, and community center for Morris Township and
Morristown residents (Ja 81, 259, 260; T110, 111, 112,
117, 118). Morristown has extensive retail stores and
commercial establishments centered around its Green,
whereas Morris Township has very few retail outlets of
any type (Ja 230. 231: T110 to 118). The few that are
located within the Township are spotted around on main
roads (Ja 223; T110 to 118). Morris Township has no
business center or “downtown” area (Ja 230; T110, 111,
112, 227). The vast majority of Township residents are
12
not conveniently situated to make use of business areas
outside of Morristown and because of road patterns and
the location of Morristown in the middle of the Town
ship, Morristown’s downtown business area is easily
reached from all sections of the Township and serves as
the “downtown” shopping center for Township, as well
^ as Town residents (Ja 232; T225, 229).
The overwhelming majority of clubs, associations, so
cial service and welfare organizations serving Town and
Township residents, including the YMCA, hospitals,
churches and service clubs, are located in the Town
(Ja 261; T255). As members and users of such organi
zations and their facilities, Town and Township residents
routinely work and play together (Ja 258, 265, 266; T33,
255, 256, 257).
This interaction is particularly strong in the area of
youth and youth facilities. The Morristown Green is a
focal point and meeting place for the youth of Morris
town and Morris Township (Ja 260; T260). Day care
centers in the Town are used by botli Town and Town
ship residents (Ja 268). Park and playground facilities
in the Town and Township are used by both (Ja 268;
T33, 255). For example, Little League baseball and foot
ball involve youth from both Town and Township on the
same teams with fields in botli the Town and Township
being used for the games (Ja 268; T32, 33, 257).*
30
In the field of municipal and public services there are
a number of instances of this interdependency. The Mor
ristown Water Department supplies water to most of the
* The unique interrelatedness of the Town and Township is
depicted in photographs of the recent Memorial Day parade
where the mayors of the Town and Township paraded side by
side, with their governing bodies marching as a single unit and
the police forces of the Town and Township parading as one in
termingled group (Ja 128, 129; T33, 34, 35).40
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30
40
13
Township residents (Ja 267; T256). Sewer service is
rendered to some parts of the Township by the Town.
Town and Township Fire and Police Departments cover
and otherwise assist each other (Ja 270). Morristown
and Morris Township operate jointly the “Joint Free
Public lib rary of Morristown and Morris Township”,
which is located in the Town (Ja 268, 270).
This unusual relationship between Morristown and Mor
ris Township, being historically rooted and physically im
pelled by geographical features, street patterns and other
concrete features, is a durable relationship which, is es
sentially permanent (Ja 269, 270; T263).
D, C o m m unities a n d M u n ic ip a litie s S u rro u n d in g M o rris
T o w n sh ip
In contrast to Morris Township, all of the areas sur
rounding the Township are oriented toward centers other
than Morristown (Ja 257, 25S; T256). These surround
ing areas (including Morris Plains and Harding Town
ship) have identities separate and apart from the Morris-
town-Morris Township community (Ja 257, 258; T256).
(This is treated area by area by Candeub at T256 to 258.)
E. O ne Com m unity Defined
The hearing officer—based upon the testimony and re
port of Candeub, found that Morristown and Morris
Township are one “community” (Ja SO, 81). Part of
Candeub’s testimony and report was devoted to this defi
nition of “community” as a combination of people and
places having the following characteristics:
(1 ) a territorial base, which can be described and de
fined, and which has a recognizable pattern of develop
ment and identifiable characteristics;
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20
30
40
14
(2) interdependence, interaction and a correspondence
of interests among diversified groups;
(3) a community center or central core of activities
and institutions; and
(4) historical continuity and stability (Ja 253 to 255;
T244 to 247).
As pointed out by Candeub, Morristown and Morris
Township together have all the characteristics of a single
community (Ja 256 to 270; T252 to 263):
(1 ) a compact, common territorial base, which is sepa
rated and distinguishable from surrounding communities
and areas;
(2) a municipal boundary between them which is entirely
arbitrary and invisible, unrelated to any natural or man
made features;
(3) a single common commercial, social and institutional
center which has the Green in downtown Morristown as its
hub;
(4) extensive interaction, interdependence and a mutual
correspondence of interests—in spite of significant socio
economic differences—between Morristown and Morris
Township residents in a broad variety of areas and activi
ties; and
(5) historical continuity and durability in their relation
ship.
Based upon his knowledge and experience, Candeub
found the closeness of this relationship between tvTo sepa
rate municipalities to be unique within New Jersey (Ja
218; T261, 262, 263).
15
IV. Socio-economic and population differences be
tween Morristown and Morris Township.
AVithin this single community, as in any community,
there are notable social and economic variations, and these
correspond significantly with tire inner-outer division.
Morristown and Morris Township present different socio
economic patterns (Ja 77, 79, 218). They have sharp dif
ferences in housing, racial composition of population and
growth of population (Ja 218, 23G). The socio-economic
level of Morris Township residents is significantly higher
than tire level of Morristown and the disparity is increas
ing (Ja 236, 239; T232, 234, 235).
Morristown not only ;.as a large Negro population but
a large percentage of low income and moderate income
white families as well (Ja 239; T159, 235, 236). Morris
town public school officials estimate that 50% to 65% of
its resident students are economically deprived (T449).
Two hundred and seventy-five Town students are receiv
ing ADC support (T356).
Township residents are more likely to be professionals
or businessmen, while many of the Town residents—par
ticularly the Negroes—are blue collar workers (Ja 239;
T160, 232).
A. H ousing
Morristown is nearly fully developed, but the Township
has a large potential for development because of the con
siderable amount of open space still available (Ja 77, 238;
T139). Morristown has intensive business and commercial
development at the center, along with apartment houses
and two-familv homes in its more central residential sec
tions (Ja 78, 2*36; T11S, 142, 143). The density of popula
tion is much greater in the Town than in the Township.
Morristown has approximately the same number of peo
ple living within its 2.9 square miles as the Township has
within its 15.8 square miles (Ja 73, 236).
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20
30
40
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20
30
40
1 6
Single family housing in Morristown ranges in price
from $17,000 to $35,000 with an average sales price of
$22,000 to $24,000 (Ja 78, 238; T120, 121). Single family
housing in Morris Township averages $40,000 to $60,000
and the price of new homes is at least $40,000 (Ja 77, 238;
T100 to 108, 232).
In many areas of Morristown there is a concentration
of old, deteriorating housing, into which Negroes and other
lower socio-economic families are moving—almost exclu
sively on a rental basis—replacing white families and con
verting single family houses into two and three family
units (Ja 78, 236, 237; T126 to 129, 23). Much of this
housing is sub-standard and generally overcrowded (Ja
236; T128).
Unlike Morristown almost the entire Negro population
of Morris Township is concentrated in one residential sec
tion (“Collinsville”) Ja 77, 127; T191, 192). Morristown
has 150 low-income public housing units which are 100%
Negro occupied plus over 100 low-cost public units for the
elderly; Morris Township has none (Ja 78, 236; T143).
There has been little new single family housing con
structed in the Town in recent years (Ja 236; T139). Space
for recent apartment house construction in Morristown has
often been secured by demolishing existing single-family
dwellings (Ja 236; T144, 145). There are. a number of
newer apartments found in the Town which are occupied
predominantly by whites without school-aged children
(Ja 78, 236; T145 to 150).
In contrast to Morristown, a large percentage of Morris
Township’s housing has been constructed within the past
ten years (Ja 23S; T99, 103, 106, 107). Almost all of Mor
ris Township’s recent housing development has been ex
pensive single-family residences (Ja 77, 238; T99, 103, 106,
107, 140). Because of the considerable amount of open
space remaining in tire Township and the demand for ex-
17
pensive single-family houses, the continued construction
of large numbers of such expensive single family dwellings
is expected (Ja 77, 238; T139, 140, 141).
As a result of these differences, Morris Township has
become a site of homes for middle and upper middle in
come families, as contrasted with Morristown, which serves
as the source for housing—public and private—for lower
soeio-ecomonic families, including the elderly and a large
number of Negroes (Ja 77, 78, 236 to 238; T100 to 107,
120 to 128, 139). There is every reason to expect this
housing pattern to continue. There will continue to be a
demand for housing for Negroes in Morristown. Employ
ment opportunities for Negroes in Morris County are in
creasing and there is also the pressure caused by the de
sire of Negroes to move from large concentrations of
Negro populations in nearby cities such as Newark and
New York (Ja 239). The inexpensive housing in Morris- 20
town is relatively more important because of the lack of
available housing for Negroes elsewhere in Morris Coun
ty (Ja 239). New Jersey State Hospital at Greystone
Park employs some 1,000 Negroes, and is only some four
miles from Morristown (Ja 239).
Such blacks coming into the area will continue to be re
stricted by economic factors to locating in the Town, rather
than the Township (Ja 77, 239; T199). Furthermore, the
trend of potential white buyers rejecting the Town as a
place to live (as found by the hearing officer) can be ex- 30
pected to continue and intensify, particularly if the Town
ship withdraws from Morristown High School (Ja 78 79
271, 272, 273; T170 to 173, 1S8, 189, 263 to 265).
B. Population
The sharp differences in housing and housing trends be
tween Morristown and Morris Township have contributed
to and explain the equally sharp differences in the racial
composition and rate of growth of the populations of the 4n
Town and Township. ^
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30
40
18
( 1 ) M orristown Population (Including School Population)
Morristown’s total population is leveling off, but its
Negro population, is increasing at an ever-increasing rate
(Ja 243; T235 to 23S). Morristown bad a population of
15,200 in 1930, 17,200 in 1950 and 17,700 in 1960 (Ja 78,
242, 243). Its population was expected to exceed 20,000
by this time (Ja 242, 243), but the 1970 cent ms shows
17,662. Morristown’s total population is expected to in
crease only by 2,000-4,000 by 1980 (Ja 242, 243).
In 1950 only 10% of Morristown’s population was Negro
(Ja 243; T235). This increased to 14% by 1960 and to
24% by 1968 (Ja 243; T235). By 1980 Morristown will
be between 44% and 48% black, assuming no withdrawal
of Township children from Morristown High School (Ja
78, 243; T237).
Similarly, Morristown’s school population is leveling off,
but its black school population is increasing dramatically
(Ja 171, 173, 24S, 249; T238 to 241). Morristown’s current
resident school enrollment of 2,823 is not expected to ex
ceed 3,200 by 1980; however, its Negro school population is
expected to increase from its current 39% to over 65%
by 1980 (Ja 249; T238). Morristown’s elementary schools
which are now 43% black
by 19S0 (55% black by 1974) (Ja
are expected to be 70%
f0, 24S, 249; T239,
black
241).
The Town black elementary school population is grow
ing at an ever-increasing rate (Ja 171, 173, 248, 249;
T239). It was 33% in 1962 and increased from 39% to
43% from 1968 to 1969 (Ja 75, 171, 173; T333). In 1962-
1963 Morristown in grades K-S had only three classes
over 50% black, whereas in the 1969-1970 school year, the
number had increased to 16 classes (Ja 171. 173; T340).
An even greater rate of increase is most probable in the
event of a withdrawal by the Township from Morristown
High School (Ja 24S, 251, 271 to 273; T 170, 263 to 265).
19
Morristown’s resident high school enrollment is now
30% black, but the overall Morristown High School enroll
ment is only 14% black, because the students received
from Morris Township, Harding and Morris Plains are
predominantly white (Ja 75, 175, 252, 296; T404, 405, 705,
1653). Only 6% of the Morris Township students pres
ently attending Morristown High School are black, and not
over 1% of the Harding Township and Morris Plains stu- 10
dents are black (Ja 175, 252, 2S8, 289, 295, 296, 297).
Morristown no longer has the resources to resolve the
racial imbalance problems now confronting it (Ja 310;
T746, 747). In September, 1962, Morristown voluntarily
undertook a plan of integration to achieve racial bal
ance in its elementary schools (T323, 324, 325, 326). Under
this plan, the Lafayette School, which was overwhelmingly
Negro, was made a junior school for all 7th and Sth grade
pupils and the K -6 pupils formerly attending the school 20
are bussed to the Town’s three other elementary schools
(Ja 73; T324, 325, 326). In spite of this plan, the Lafayette
junior school is now 43% Negro, and the three elementary
schools of the Town 37%, 45% and 49% Negro, respec
tively (Ja 75, 173; T328, 329).
This difference between the racial composition of the
Town’s total population and its school population is at
tributable in part to the fact that the large number of
newer high cost apartments built in the Town are occupied
for the most part by white families without school age 30
children (Ja 78; T146 to 149).
( 2 ) Morris Township Population (Including School Popu
lation )
Morris Township’s total population is increasing rapidly.
I t is overwhelmingly white and will remain so (Ja 127.
243, 246, 247). The Township’s population in 1950 was
7,400. Morris Township’s 1968 population was 17,600
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20
30
40
20
(Ja 77, 246), and the federal census for 1970 shows 19,-
414. It is anticipated that the Township’s population
will continue to increase and reach 23,500-25,500 by 1974
and 27,500-29,500 by 1980 (Ja 243, 246).
Only 4.5% of the total Township population is black (Ja
245; T236). This represents a decrease in percentage
from 1950. The Township’s Negro population is expected
to decrease slightly by 19S0 and in any event remain less
than 5% of the total Township population (Ja 77, 243,
247; T237).
All of the Negro children who attend Morris Township
public schools—with the exception of three families—live
in the Collinsville section of Morris Township (Ja 127;
T191, 192).
Like its municipal population, Morris Township’s pub
lic school population is now experiencing and will con
tinue to experience growth. Morris Township’s total cur
rent public school enrollment is 4,172 and it is expected
to reach 6,700 by 19S0 (Ja 249, 251). However, the Town
ship’s school enrollment is now and will remain overwhelm
ingly white (Ja 75, 77, 249, 251). Five percent of current
Township students are Negro and no increase in this per
centage is expected (Ja 249, 251; T238). It is more like
ly to decline by 1980 than increase (Ja 77, 249, 251; T239).
The percentage of Negroes in Township schools has de
creased noticeably in recent years as evidenced by the fact
that in 1946 the Township’s ninth grade class graduating
from Alfred Vail Junior High School was 22% Negro
(T979, 980).
21
V. The present Morristown-Morris Township school
systems.
A. In G eneral
Both the Morristown and Morris Township school sys
tems are of high quality (Ja 72, 294, 295; T341 to .353,
593, 1355, 1428). Morristown is rated as one of the top
two school districts in Morris County and also ranks high
among the superior school districts of New Jersey as
revealed by the “Pilot Study of School District Reor
ganization for the State of New Jersey” made by Engel-
hardt, Engelhardt and Leggett, Inc. (now Engelhardt and
Engelhardt, Inc.) in January, 1968 for the State Depart
ment of Education in connection with the work of the
“Mancuso” Committee (Ja 193, 194, 294; T349, 350).
By all accepted standards of measurement, Morristown
maintains an excellent educational program, both at the
high school and elementary levels (Ja 72, 83, 294, 295; T341
through 353).
10
20
Morristown High School rates high among the superior
schools of the state and offers a diversified and compre
hensive program, including seven full vocational programs
and an equal number of advanced college placement
courses in English, social studies, science and language
(Ja 72, 294, 295; T367, 368, 369). Morristown High School
currently offers a total of 150 courses (T367). The me
dian superior school district in New Jersey offers 90-99 30
courses at the high school level, and the State median is
only 80-89 courses (Ja 295). Morristown High School
has been singled out for a number of pilot state and
federal programs including vocational guidance, television
and food services (T374, 375).
During the years 1966, 1967, 1968 and 1969, approximate
ly 70% of Morristown High School graduates enrolled in
4-year, 2-vear or technical schools following graduation
(Ja 181, 302). Total figures for these four years show that 49
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40
22
while 76% of Township graduates went on to further
schooling, only 59% of Town graduates did so (.Ja 181,
302).
Morristown High School's current enrollment is approx
imately 2,000 which compares favorably with the size of
schools in the group of superior school districts studied
iii connection vv'ith the work of the Maneuso Committee
(Ja 294, 295). Morristown High School’s comprehensive
program has been educationally and financially feasible
because of the size of its total enrollment (Ja 82, S3,
300, 301, 303; T371 to 373).
Morristown had a total resident school population on
May 1, 1969, of 2,823, including 785 9th-12th grade stu
dents in Morristown High School (Ja 285). Morristown
has three K -6 elementary schools (George Washington,
Alexander Hamilton and Thomas Jefferson), and in ad
dition it houses six kindergarten classes in rented space
in the Assumption School and two kindergarten classes
in a “child development center” building (Ja 281, 284).
Morristown’s 7th and 8th grade students are housed in
the Lafayette School (Ja 73, 284; T675). These build
ings as well as the high school, are well maintained, but,
with the exception-of Thomas Jefferson, are older than
those in Morris Township and located on smaller sites
(Ja 283).
Morris Township’s total resident school population as
of May 1, 1969 was 4,172 (Ja 74, 285), including 750
10th, 11th and 12th grade students sent to Morristown High
School (Ja 282). Morris Township bus five K-6 elemen
tary school buildings (Woodland Avenue, Normandy Park,
Alfred Vail, IJillcrest and Sussex Avenue), and the Fre-
Iinghuysen Junior School which houses its 7th, 8th and
9th grades (Ja 73, 74, 75, 284). The five Township ele
mentary schools are located in close proximity to the
Town-Township boundary line and the Town schools,
which also (with one exception) lie near such boundary
line (Ja 73, 74, 250; T239 to 241).
23
Apart from the sending-receiving relationship at the
high school level, the Morristown and Morris Township
school districts have various joint educational programs
and cooperative efforts (Ja 283; T316 to 321, 675, 676).
-Along with Morris Plains and Harding, Morristown and
Morris Township sponsor a single special education pro
gram for their trainable, educable, physically handicapped,
emotionally disturbed and socially maladjusted students,
with the large majority of such students attending classes
in either Morristown or Morris Township schools (Ja
283; T317, 675, 676). Morristown and Morris Township
have for several years jointly conducted summer remedial
reading and math programs as well as in-service training
for their staffs (T319, 320).
B. E x is tin g S en d in g -R ece iv in g R e la tio n sh ip s
1. M orris Plains and H arding Tow nship
Morristown also accepts 9-12 grade students from Mor
ris Plains and Harding Township (Ja 72, 281, 282). The
Morristown High School enrollment as of 5/1/69 totalled
1,976 as follows:
Town Grades Enrollment Percent
Morris Plains 9-12 336 17
Harding 9-12 105 5
Morris Township 10-12 750 38
Morristown 9-12 7S5 40
Total: 1976
(Ja 282)
Neither Morris Plains nor Harding currently is under
contract with Morristown to send its pupils to Morris
town High School (Ja 72; T321). These sending-receiv
ing relationships are based only on designations, and
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20
30
40
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20
30
40
24
they are tenuous if the Commissioner persists in saying
he cannot control withdrawal (Ja 82; T321, 322, 323, 977,
978). Both the Harding and the Morris Plains Boards
have considered alternatives to sending their high school
pupils to Morristown High School (T322, 323). Morris
Plains will seriously consider other alternatives and ex
plore a relationship with other contiguous districts, in
cluding entry into a contiguous regional district, in the
event Morris Township withdraws from Morristown High
School (T941, 942).
Unlike Morris Township, the number of resident high
school pupils (9th-12th gx-ade) from Harding and Mor
ris Plains is expected to increase by only some 100 stu
dents by 1980 (Ja 286). These high school populations
will remain less than 1% black (Ja 252).
2 . M orristown and Morris Township
This sending-receiving relationship whereby Morris
Township currently sends its 10th, 11th and 12tli
grade students to Morristown High School pre-dates
the present 10-year contract and has been a con
tinuous one since 1870 (Ja 71, 72; T304, 305, 306, 307,
1084). Dui'ing this long relationship, the only Morris
Township high school students failing to attend and
graduate from Morristown High School were those in
the Township 10th grade classes of 1958 and 1959. These
two classes attended and graduated from Madison High
School. Even during this period, therefore, at least one
class of Morris Township students was attending Morris
town High School (Ja 71; T305, 306).
In 1959 and again in 1960, the voters of Morris Town
ship defeated a referendum which, if approved, would
have permitted the Township Board of Education to con-
struct its own high school (T308, 309). In between these
two Township high school referendums, the Boards of
Education of Morristown and Morris Township jointly
25
sponsored a referendum proposing a complete K-12 mer
ger of both districts (Ja 185; T308, 309). The voters of
Morristown approved, but Morris Township voters re
jected merger (T308, 309).
On March 15, 1961, Morristown and Morris Township
entered into the present 10 year contract whereby Mor
ris Township agreed to send its 1.0th grade students
to, and have them educated through 12th grade, at Mor
ristown High School for the 10 year period specified
(Ja 71, 161; T306, 309). The last 10th grade class cov
ered is the one which will enter in September, 1971 and
graduate in June, 1974 (Ja 71, 72; T306).
C. Sufficiency o f F ac ilitie s
Total school population projections for Morristown and
Morris Township show the school facility needs of the
Township to be more acute and extensive than are the
needs of the Town (Ja 74, 2S4, 285, 287; T686 to 690).
The present capacity of Morristown High School is
adequate to accommodate all high school students from
Morristown, Morris Township, Morris Plains and Hard
ing through 1974 without exceeding an average of 25
pupils per class (Ja 74, 305; T382 to 386). Morristown’s
elementary facilities are currently at capacity, but its K-6
enrollment is expected to increase only by 200 pupils by
1980 (Ja 284, 285). Morristown’s junior high school has
sufficient capacity to accommodate all its 7th and 8th
grade pupils through 1980 (Ja 284, 285). Morris Town
ship reports that its elementary schools (K-6) are some
200 below capacity as of May 1, 1969 (Ja 284). Morris
Township’s K -6 enrollment will increase by 1.000 pupils
by 1974 and by 1,500 pupils by 19S0 (Ja 285).
Morris Township’s Junior School (Frelinghuysen) is
said to have already exceeded its capacity by some 200
pupils (Ja 2S4). Morris Township’s 7th and 8th grade pop
ulation will increase over 200 pupils by 1974 and by 1,000
.10
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30
40
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20
30
40
26
pupils by 19S0 while Morris Township’s 9th-12th grade
population will increase from 1,021 to 1,500 by 1974 and to
1,760 by 19S0 (Ja 285).
VI. Morris Township’s non-binding referendum
On January 11, 1968, the Morris Township Board of
Education conducted a “non-binding” special referendum
among only Morris Township residents (Ja 85; T25,
11S9). The issue as presented on the ballot asked the
Township voter to indicate whether he favored a sep
arate K-12 school system for Morris Township, or a com
plete K-12 merger with Morristown (Ja 85, 159; T25).
The Morris Township Board of Education agreed to
hold this referendum although six out of eight members
of the Board favored a complete K-12 merger (Ja 85;
T25 to 27, 11S9, 3190, 1345, 1346). Although referred to
as a “non-binding” referendum, the Morris Township
Board pledged itself to be bound by the decision of the
voters and has acted and regarded itself as bound since
the referendum (Ja 85, 159, 195; T29). By a narrow mar
gin, the Township voters favored a separate K-12 dis
trict; the referendum vote was 2,164 to 1,899 in favor of
a separate high school and against merger (Ja 85, T29).
In regard to this referendum the Township residents
were given no information concerning capital cost savings
lo Township taxpayers in view of the anticipated rapid
increase in Township enrollment, if there were a merger
(Ja 75; T1435 to 1439). As pointed out by the hearing
officer, under a merged system the Town would bear about
40% of the cost of providing facilities required by the in
creasing Township population for Township students (Ja
75).
Immediately following this referendum, the Morris
Township Board of Education launched into its program
for the planning and construction of a separate Town-
27
ship high school (Ja 85; T31, 32, 1349). A bond referen
dum seeking approval of the Township voters to incur
indebtedness of $7,9SO,000 in connection with the construc
tion of such high school was scheduled for March, 1969,
but was enjoined by the Commissioner’s preliminary de
cision of March 21, 1969 (Ja 55 to 66; T35). Since the
January 11, 1968 referendum, the Morris Township Board
of Education has not considered any course of action 10
ether than erecting its own separate high school (Ja 85,
86, 195; T31).
In addition Morris Township refused to take part in
the merger study conducted by Dr. Leslie Rear, Morris
County Superintendent of Schools, pursuant to the urgent
request of the Commissioner of Education, made as part
of his preliminary decision of March 21, 1969 (Ja 65, 66,
86, 131, 133; T31, 32).
20' The Commissioner ruled that this January 11, 1968 ref-
erendum was illegal and an improper abdication of the
Township Board’s responsibility (Ja 113).
VII. Impact of withdrawal of Morris Township
A. Com m issioner’s G eneral Findings
The Commissioner found that the proposed withdrawal
of some 800 overwhelmingly white Morris Township stu
dents from Morristown High School would have an adverse
educational impact upon high school students from both 30
Morristown and Morris Township (Ja 117). This con
clusion Avas supported by the folloAving specific findings of
the hearing officer regarding the educational disadvantages
of withdrawal, summarized as folloAvs (Ja 82, S3):
1 . Scope and variety of courses offered at Morristown
High School would have to be reduced;
2. Withdrawal of the highly motivated, capable Town
ship students Avould have an adverse effect upon
40
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20
30
the performance and motivation of the remaining
students;
3. The program structure would have to be drastically
re-oriented for the remaining students from lower
socio-economic backgrounds;
4. The percentage of black students in the High School
would immediately double from 14% to 28% (to 44%
without Harding and Morris Plains) and by 1980
would reach 35% (56% without Harding and Morris
Plains);
5. The present excellent program at Morristown High
School would lose its breadth and quality;
6. With change in program and reputation and loss
in tuition revenue, it is likely there will be a de
crease in the Town’s financial support of its school
system;
7. Morristown would have difficulty keeping and at
tracting the same high quality faculty;
8. Township high school students would be denied the
privilege of an integrated education;
9. The sudden alteration in racial composition of the
High School is likely to aggravate the tendency of
potential white buyers to avoid purchasing houses in
Morristown.*
* Immediately following these nine findings the hearing officer
makes an observation which requires mention. He says:
“ However, even accepting petitioners’ enrollment projec
tions, no conclusive testimony was introduced to establish
that, as a result of the withdrawal of the township students,
the remaining black Morristown High School students
would necessarily experience a sense of stigma or be sub
ject to a stamp of inferiority.”
( C o n t i n u e d or, f o l l o w i n g p a g e )40
29
B. U nderlying Proofs
I . Racial Imbalance
Racial imbalance and racial segregation at the high
school level would result if 'Morris Township were per
mitted to withdraw and erect its own high school (Ja 82,
295, 297). This results from the fact that Morristown’s
resident black high school population is increasing rapid
ly, while Morris Township’s school population will con
tinue its rapid growth, but remain overwhelmingly white
(Ja 248, 249, 251). Morristown High School’s current en
rollment of some 2,000 students is only 14% black be-
( C o n t i n u e d f r o m p r e c e d i n g p a g e )
While this is not structured as a specific finding it warrants men
tion because it is not only palpably in error on the record, but
directly contradicted by the hearing officer’s specific findings,
which establish that the image and reputation of Morristown High
School will suffer substantially. Thus, he found in item 7 that
high quality faculty candidates would tend not to come to Morris
town; in item 6 he found that Morristown High School’s “ reputa
tion” will change—obviously adversely; and in item 9 he found
that home buyers may reject Morristown increasingly because of
this sudden alteration of the racial composition of the high school.
This is a finding of stigma by another name—deterioration of
reputation and image. The hearing officer’s quoted sentence, in
light of this, does not seem to have been carefully considered.
If it was intended to differentiate between the obvious harm to
Morristown’s black students and outsiders’ perception of it, as
against the black students’ perception of it, it is without founda
tion.
We suggest the hearing officer’s itemized findings are controlling,
and that the quoted sentence was a casual commentary which was
not intended to contradict the findings, and if it were so intended
would be unsubstantiated in the record.
On the compelling evidence of a branding of Morristown High
School as inferior, see, e.g., the testimony of Dr. Wenner (T441-
442) the Candeub report (Ja 271-273) and the Engelhardt report
(Ja 304a).
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30
40
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30
40
30
cause the students received from Morris Township, Hard
ing and Morris Plains are overwhelmingly white (.Ja 75,
l<o, 252, 296; T404, 405, 705, 1653). Morristown’s resi
dent high school population, however, is 30% black, while
only 0% of the 762 10th-12th grade students received from
Morris Township are black and not over 1 % of the Hard
ing and Morris Plains students are black (Ja 75, 175
252, 288, 289, 295, 296, 297). These Township students’
constitute approximately 45% of the total 10th, 11th and
12th grade students at Morristown High School, and would
total well over 50% of such grades bv 1974 (Ja 24S to
251; T425).
In contrast to the sharp increase in the black popula
tion at Morristown High School which would be produced
by the Township’s withdrawal, the new Township high
school, along with the rest of the Township district, would
be overwhelmingly white (95%) (Ja 76, 77, 249, 251, 297).
When the large Negro elementary school population of the
Town is also considered (now 43% Negro and expected
to be 70% Negro by 1980), the result is a predominantly
black school district surrounded by an overwhelmingly
white one (Ja 75, 76, 77, 82, 83, 84, 310, 3.11).
Morris Township’s high school students would be de
nied the bi-racial experience which is now available to
them at Morri&town High School, and which is represen
tative of the bi-racial Morristown community in which
they live (Ja 272, 273, 311). The result would be “disas
trous” insofar as relationships, among the youth of the
community and the community as a whole is concerned
(T434). Candeub testified that withdrawal would be an
“extraordinarily regressive step which frankly shocks me.”
(T265). The opportunity of both Town and Township
students to prepare for the future in a social climate con
ducive to developing healthy relationships among whites
and blacks would be lost (Ja 311; T263, 264, 265, 435)
This unfavorable contrast between Morristown’ High
31
School and the new Township high school in terms of
Negro population will affect the present reputation now
enjoyed by Morristown High School and reduce the self-
image of both students and faculty at Morristown High
School, thereby adversely affecting the school’s recruit
ment efforts and the attitude and motivations of the stu
dents toward education and future goals (Ja 298, 303,
304; T435, 436).
Morristown High School will also contrast sharply with
all other nearby high schools insofar as a racial composi
tion is concerned, in the event of a withdrawal, since no
other high school in Morris County is over 5% black,
and most have a black population closer to zero or 1 %
(T407, 408). As a consequence, Morristown High School’s
black percentage is generally reputed in the region to be
much higher than it is in fact (T408).
2. Socio-Economic M ix
Even if Morris Plains and Harding Township remain,
the socio-economic level of Morristown High School would
be sharply and abruptly lowered bv a withdrawal of
Township students and the level would continue to decline
(Ja 82, 298; T71S to 722). Approximately 94% of the
Morris Township students withdrawn would be white (Ja
296, 297) and would be primarily from middle to upper
middle income families who are highly motivated aca
demically (Ja 179, 181, 298; T427 to 433). Along with
Harding and Morris Plains students, it is these Morris
Towmship students which give Morristown High School a
strong middle class bias which will become even stronger
if Morris Towmship remains (Ja 298: T718. 719).
The Township high school students’ l.Q.s average some
eight points higher than Town students—a substantial
difference (Ja 179; T429, 430). A higher percentage of
Morris Township’s students go on to higher education
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20
30
40
10
20
30
40
32
and a lower percentage are involved in vocational pro
grams, as compared to Town resident students (Ja 181,
183).
Studies sponsored by United States government agen
cies, including the United States Office of Education Sur
vey, “Equality of Educational Opportunity” (“Coleman”
Study) and the Report of the United States Commission
on Civil Rights, “Racial Isolation in the Public Schools”,
have concluded that students of all backgrounds tend to
do better in schools which are predominantly middle class,
particularly in the later grades (Ja 79, 80, 199—p. 67-69,
*29S). In terms of racial imbalance, Negro students tend
to do better in desegregated schools which are primarily
white than in schools with a large Negro population and
consequently a low socio-economic level (Ja 79, 80, 199—
p. 67, 68, 69, 298).
While these studies show that a predominantly middle
class environment is important, particularly to the minor
ity groups in the lower socio-economic levels, the educa
tional achievements of the students from the middle to
upper middle classes are not improved significantly by
isolating them from these lower socio-economic levels (Ja
199—p. 51, 52, 61, 67-69, 29S). Morris Township’s stu
dents will not, therefore, benefit academically to any mean
ingful degree by attending a high school which is 95%
white (Ja 298). They will, on the contrary, lose the op
portunity to share experiences with children of the com
munity who come from different socio-economic back
grounds (T435, 436, 437, 718, 720, 721).
3. Resulting Unit Size
In the event of withdrawal of Morris Township stu
dents, the size of both Morristown High School and the *
* The notation “ Ja 199-p. 67” should be read to mean page
67 of the Exhibit appearing at Appendix page 199.
33
new Township high school would fall below optimum lev
els, and Morristown High School would be below or bare
ly exceed the minimum recommended size (Ja 299 to 303;
T722 to 726).
The quality and scope of educational offerings at the
high school level is directly related to the size of the
school and school district (Ja 187—p. 5, 301, 303, 304; T423 ^
to 426). Morristown High School’s enrollment is present
ly approximately 2,000 students, of which only 785 are
Morristown residents, and 750 (as of May, 1969) are Mor
ris Township residents (Ja 305). By 1980, Morristown
High School is expected to have a total enrollment of
only 1,440 in the event of withdrawal by Morris Town
ship, and assuming Harding and Morris Plains remain
(Ja 290). Without Morris Plains and Harding, Morris
town High School’s enrollment by 19S0 would be onlv 900
(Ja 290). ' 20
Morristown High School’s enrollment upon completion
of the proposed Township withdrawal in 1974 would be ap
proximately 1,300, assuming Morris Plains and Harding
remain, and only 800, if Morris Plains and Harding leave
(Ja 290; T424, 425, 42S). The State Board of Educa
tion’s “Maneuso Committee” in its final report to the Com
missioner in April, 1969, recommended a minimum K-12
district of not less than 3,500 students (Ja 193—p. 10, 299).
Recommendations made by the Maneuso Committee on op
timum school district size ranged from a low of 9,800- 30
12.000 to a high -of 20,000-50,000 with the majority in the
area of 10,000-12,000 (Ja 193—p. 29, 299; T722, 723). A
10,000-12,000 K-12 district results in a 9th to 12th grade
enrollment of 3,000 to 4,000 pupils (Ja 300).
The Morristown High School enrollment in 1974 with
out Morris Township will fall below this optimum size
as recommended by the Maneuso Committee, and even if
Harding and Morris Plains remain, its enrollment will
just barely reach the minimum recommended by the Man- 40
cuso Report (Ja 300).
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30
40
34
The proposed Morris Township high school will exceed
minimum size standards established by the Mancuso Com
mittee since it is expected to have approximately 1,500
students in grades 9 to 12 in 1974, but upon opening
would be far below the optimum size of 3,000 to 4-,000 stu
dents, as reported by the Mancuso Committee (Ja 300).
Ty 19S0, the Morris Township 9th to 12th grade enroll
ment is expected to reach only 1,760 (Ja 289, 300).
The current comprehensive program at Morristown High
School will be severely curtailed and adversely affected
by the reduction in numbers which a Township with
drawal will produce (Ja 82, 187—p. 5, 301, 303, 304; T423,
424, 425, 420, 427). Specialty courses would be most difficult
to continue and the advanced placement courses, as well
as the vocational programs, at the high school would be
seriously jeopardized (Ja 82, 83, 303, 304; T427, 432, 433).
hi terms of both quality and quantity the withdrawal of
Morris Township’s students would have a substantial ef
fect on the program that is now offered at Morristown
High School (Ja 82, 83, 303, 304; T427).
Tn December, 1968, the Morris County Superintendent
of Schools completed a “Preliminary Study of Regionali
zation for High School Purposes” involving the Morris
town, Morris Township, Morris Plains and Harding Town
ship school districts (Ja 187). This study recognized this
adverse effect upon Morristown High School by a with
drawal of Morris Township's students, and concluded that
any combination of Morristown, Harding and Morris
Plains, without Morris Township, would produce a high
school too small in size to merit consideration (Ja 187
—p. 4, 5). The study concluded that in order to avoid im
posing serious limitations upon ihe scope and effective
ness of the program now enjoyed by all students at Mor
ristown High School, Morristown and Morris Township
must remain together at the high school level (Ja 187
-P - 4-6).
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20
30
40
35
Morris Township’s students would also suffer as a re
sult of the withdrawal (.Ja 303, 304; T721, 722). The pro
posed high school would not be of optimum size so as
to provide the breadth and depth of program which would
be provided by remaining with Morristown (Ja 303, 304).
The plans for Morris Township’s proposed new high
school reveal very limited vocational offerings, as com
pared with Morristown High School’s present offerings
(Ja 303).
Neither school would be able to meet the needs of all
of its students as well as they are now being met (Ja
303 to 307 ; T728, 729, 730).
Morristown High School with Morris Township, as well
as Harding and Morris Plains, would reach an enrollment
of 2,400 by 1974 and 2,740 by 1980 (Ja 305). Such size
would enable the comprehensive program of Morristown
High School to be continued and improved (Ja 300 to
307).
4. Indirect Im pact Through R esulting G eneral
Population Change
Projections concerning the growth of Morristown’s total
Negro population and its Negro school population (70%
black in elementary grades by 1980) made by Candeub,
Fleissig and Associates, were made without attempting to
measure the effect upon population patterns of a with
drawal of Morris Township’s students from Morristown
High School (Ja 248, 249). This indirect effect will ac
celerate the growth (Ja 78, 248, 251, 271, 272, 311).
Separation of the Town and Township at the high
school level will have a markedly adverse impact upon
the Morristown-Morris Township community and provide
a deterioration of existing relationships (Ja 271 to 273;
T264, 265, 434, 435, 436). which will undoubtedly acceler
ate this rapid rate at which Morristown’s black school
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20
30
40
36
population is increasing (Ja 271, 272, 311; T2G3, 264, 265,
409, 410, 411, 434).
The Morristown elemental'}7 school Negro population
has already reached a level where it is becoming more
and more difficult to maintain a balanced situation, and
Morristown High School, following a withdrawal of Mor
ris Township students, would begin to reach a level where
racial problems and tensions would be much more diffi
cult to handle (T4.06 to 412).
The results of reaching a “critical threshold” in terms
of the percentage of the Negro school population is dem
onstrated by the experience of the Weequahic school dis
trict of Newark, which went from 19% to 82% in a seven-
year period (Ja 248, 251).
White families will increasingly consider the Morris
town school system so black that they will not want their
children to attend (Ja 271; T76, 263, 264, 607). Presently
many white buyers reject Morristown as a place to live
(Ja 79; T75, 76, 154, 155, 170, 171). This was not so a
few years ago, and this attitude lias been gathering speed,
particularly in the last five years (T155). The withdrawal
of Morris Township from Morristown High School will
have a very substantial effect upon this pattern of de
crease in demand for housing in Morristown by whites
with school age children (Ja 79; T75, 76, 170, 171, 1001,
1002) .
Withdrawal of Morris Township’s students would in all
probability cause a “panic reaction” within Morristown,
resulting in a major change-over in occupancy within the
Town, which would bring Morristown to—or close to—the
point of being stigmatized as a ghetto (Ja 273; T263, 264,
265, 1001, 1002).
5. F in a n c ia l Im p a c t
The financial impact of Morris Township withdrawing
its students from Morristown High School and erecting
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20
30
40
37
its own high school would he adverse to both Town and
Township (Ja 189—p. 1, 301, 303; T372, 756).
Morristown High School has a capacity of 2,450 (Ja 74,
30o; T385). Upon withdrawal of Morris Township stu
dents, there would be approximately 1,300 remaining, re
sulting in an under-utilization of present facilities of Mor
ristown High School (Ja 290; T424, 425).
The Township withdrawal would leave Morristown with
a substantia] unpaid portion of the debt incurred in 1962
lor the expansion oi Morristown High School as a part,
of the present 10-year sending-receiving contract (T414 to
419). (Including interest, the total amount to be paid pur
suant to this bond issue is $700,985 (T415). As of the
time of Morris Township’s proposed withdrawal in 1974,
the unpaid balance of this debt will be $198,000, and the
Township would have paid only $57,225 toward the total
cost of $700,985 (T414, 415).
The substantial loss of tuition (currently about $880,-
000) in the event of a withdrawal by Morris Township
would not result in a proportionate reduction in the over
all cost of operating the high school (Ja 303; T372, 424).
Morris Township, as well as Morristown, would be faced
with greater operational costs per pupil in order to main
tain the educational program now enjoyed at Morristown
High School, in the event of a withdrawal (Ja 189—p 3
303, 314; T372, 424).
Morris Township in erecting a new high school would
be duplicating spaces now available to it at Morristown
High School. Under merger, Morristown residents (whose
school population is leveling off) will pay approximately
40% of all construction costs (based upon the current
ratio ot tax valuations) necessary to house the ever-
increasing number of Morris Township high school stu
dents; but if Morris Township maintains a completely sep
arate K-12 system, its residents must bear all such costs
by themselves (Ja 75, 313, 314; T711, 712, 1256 to 1270).
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30
40
33
VIII. Alternatives to withdrawal other than K-12
merger.
Apart from a K-12 merger, some of the major problems
and educational disadvantages which would be caused by
a withdrawal of Morris Township students can be elimi
nated either by (1 ) a continuation of the present sending
receiving relationship or (2) a merger (regionalization)
at the high school level only (Ja 304 to 308; T732 to 740).
The Morristown Board of Education is prepared to ac
quire additional land and to construct additional facilities
and do whatever else is required to permit it to continue
to receive Morris Township high school students (Ja 75,
305; T975 to 977). Morristown High School already has
sufficient capacity through 1974 to permit such a continua
tion (Ja 74, 305; T733).
The present Morristown High School site could be ex
panded by acquiring adjoining and nearby properties to
serve indefinitely as a high school site for the Town and
Township, and even on its present site there is room for
additional construction to accommodate high school stu
dents from all four districts through 1980 (Ja 305, 306;
T733, 734, 735, 736, 737). Morristown has already em
barked on a program of acquiring additional properties
and investigating the possibilities of other acquisitions
(Ja 305, 306; T396 to 400, 735, 736). The need for larger
high school facilities to permit the sending-receiving re
lationship to continue could also be supplied by Morris
town’s constructing a new high school on another site (Ja
306). Such site could be either in the Town, Township or
partially in both (Ja 306; T734).
Both of these approaches would achieve racial and
socio-economic balance at the high school level, would pre
serve the advantages of an optimum-sized high school
and generally afford greater educational opportunities
for all high school students now attending Morristown
l
39
High School than would be available in the event of a
Township withdrawal (Ja 306, 307, 308; T734, 738, 739,
740).
Neither of these approaches however, will resolve all
the educational problems presently facing the Town and
Township when compared with a complete K-12 merger
(Ja 307, 308; T739, 740). Only a K-12 merger resolves jq
the critical and most difficult problems confronting Mor
ristown at the pre-high school level, where racial and
socio-economic balance is most extreme (Ja 308, 310, 311,
314, 315; T734, 738, 739, 740, 746 to 752).
Other disadvantages of a continuation of the sending
receiving relationship when compared to a K-12 merger
are (1) continuance of problems of coordination between
the high school and the Township pre-high school pro
gram and (2) continuance of inability of the Township to
participate in the control of the high school program (Ja ^0
307; T738).
A merger at the high school level only would eliminate
the first of these two disadvantages and give a per
manency to the relationship at the high school level, which
has great advantage in planning for and implementing
future high school needs (Ja 308; T739, 740). However, a
merger at the high school level only has the disadvan
tage of superimposing a fifth school district upon the
existing school districts now served by Morristown High
School, thereby adding to the duplication of administra
tive services already in existence (Ja 308; T740).
IX. Feasibility of merger.
A K-12 merger of Morristown and Morris Township is
entirely feasible and could be accomplished without de
lay (Ja 311 to 314; T443, 444). Extensive study is not
required in view of studies which have been made within
the last few years and months (Ja 187. 1S9, 191, 207, 275,
312; T752, 753). Such studies prove the need and feasi- 40
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20
30
40
40
bility of merger (Ja 187, 189, 191, 207, 275, 312). The long
sending-receiving relationship between Morristown and
Morris Township and their many other cooperative ef
forts at the working level would smooth the administra
tive merging of these two districts (T305, 306, 316 to 321,
443, 444).
Geographically, a combined district would constitute
a compact unit and present no problems insofar as dis
tance is concerned (Ja 312; T753).
Transportation and bussing problems and costs will not
be significantly increased, and indeed may be decreased,
particularly since most of the Town and Township schools
are located near the Town boundary line (Ja 73, 180—p. 4,
5, 250, 312, 313; T753, 754). The location of these schools
will enable the neighborhood school concept to be pre
served, if not enhanced, and racial balance achieved with
out the need for cross-bussing (Ja 189—p. 4, 5, 250, 313;
T753, 754). The combination of the Morristown and Mor
ris Township school districts would produce a merged dis
trict of optimum size (Ja 300, 301, 315; T723, 724). A K-12
enrollment approaching 10,000 is considered an optimum
sized school district (Ja 300). Morristown and Morris
Township’s current combined K-12 enrollment is approxi
mately 7,000 and is expected to reach 8,900 by 1974 and
approximately 10,000 by 1980 (Ja 300).
Merger is economically feasible, particularly insofar as
the Morris 'Township taxpayer is concerned (Ja 189—p. 3,
313, 314; T755, 756, 757). Since Morris Township’s school
debt is more than double the Town’s debt, merger will
save the Morris Township taxpayers some $742,000 in that,
under merger, Town residents will be required to bear
approximately 40% of the combined debt for the two dis
tricts (Ja 205, 313).
Morris Township taxpayers will be saved substantial
taxes for future capital costs for Morris Township chil-
41
dren if there is a merger (Ja 75, 313, 314). Under a sep
arate K-12 arrangement Morris Township says it will
need 5,300 additional student spaces, according to “mod
erate” projections, at a cost of $21 million dollars (Ja 74,
284; T1258 to 1270). Under a merged system, approxi
mately 40% of this capital cost will be paid by Morris
town residents (Ja 75, 314; T7.ll, 712, 12G8, 1269, 1270).
In contrast, Morristown’s total K-12 enrollment will in
crease only slightly through 1980 (Ja 285).
Operating costs would be equitably distributed between
the Town and Township residents under a merged sys
tem, whether apportioned by pupil residence or by total
municipal tax valuation (the two ways permitted by stat
ute) (Ja 292, 293, 313; T754, 755). This is so because the
valuations per pupil of the Mori'is Township and Morris
town school districts are comparable (Ja 313). The 1968-
1969 total Town tax valuation was $132,673,080, as com
pared with $199,834,641 for the Township (Ja 292,
293). This is approximately the same ratio current
ly prevailing between the total current resident school
enrollment of the Town (2,823) and Township (4,172) as
of May 1969 (i.o. approximately 40%-6Q%) (Ja 300).
The amount being spent per pupil by the Town and Town
ship is approximately the same, $890.30 per Town pupil
and $861.60 per Township student in 1968-1969 (Ja 293).
X. Proposed High School not consistent with
merger.
Morristown’s educational consultants, Engelhardt and
Engelhardt, Inc., and its Superintendent are of the opin
ion that a merged system would best be served by a single
comprehensive high school (Ja 307, 308; TG29, 741).
Morris Township agrees (Ja 137). The proposed loca
tion for the new Township high school is the 60 acre
site of the Frelinghuysen Junior High close to the north
ern boundary of Morris Township (Ja 308, 309; T741).
10
20
30
10
10
20
30
40
42-
Proposed new Route 24 Avould separate this site from
the rest of the Morristown-Township area (Ja 250; T741).
Location of a new high school at this site would in all
probability bring about a two high school system even if
merger were to be accomplished, rather than the preferred
single, comprehensive high school (Ja 309; T472, 473,
741).
The proposed Township high school was not planned
to fit a merged system (Ja 74; T24, 25). Its existence
would limit the opportunities for optimum planning not
only for the high school in a merged district, but for
the entire merged district (Ja 308, 309; T742, 743).
XI. Impact of failure to merge.
The hearing officer concluded that “because of the par
ticular circumstances of this case,” failure to merge K -12
would inflict harmful effects on the black students (Ja 84).
The “particular circumstances” he referred to were on
the one hand, the “sharp contrast” between the antici
pated racial percentages—G6% black in Morristown K-12,
and 5% black in Morris Township K-12; and, on the other
hand, the finding that Morristown and the Township are
one community (Ja 84).
The hearing officer therefore concluded that:
“. . . should the districts fail to merge, the black
student population of Morristown—particularly at
the elementary level—will suffer the same harmful
effects that the Commissioner of Education has
worked so hard to eliminate within single school
districts throughout the State.” (Ja 84)
K-12 merger would provide efficient and complete re
lief for the educational needs of this one community by
eliminating the increasingly severe racial imbalance at
the elementary and junior high school levels, thereby as
suring ecjual educational opportunity for all Town and
43
Township students without regard to background, race
or residence (Ja 310, 311). The advantages to both Mor-
ristoAvn and Morris Township of a K-12 merger are sum
marized on the last two pages of the Engelliardt and
Engelhardt report (Ja 314, 315).
A R G U M E N T 10
I. Racial imbalance in the Morristown area com
munity schools requires school merger as a constitu
tional right.
The New Jersey Constitution, Art. VIII, sec. IV, di
rects the state Legislature to enact legislation providing
for the maintenance and support of a thorough and ef
ficient system of free public schools. Title ISA of the
New Jersey Statutes is the Legislature’s response to this 20
mandate. Article 1, paragraph 5 of the New Jersey Con
stitution, declaring that “ [n]o person shall be . . . segre
gated . . . in the public schools, because of religious prin
ciples, race, color, ancestry or national origin”, ensures
that our state’s thorough and efficient educational system
will not tolerate separation of the races. The Commis
sioner of Education, our state’s chief educational officer,
is entrusted with the responsibility to see that these con
stitutional mandates are enforced.
In responding to his statutory and constitutional obli- 30
gations, the Commissioner had, commencing with Fisher
v. Board of Education of the City of Orange, 1963 S.L.D.
123, upheld our strong state policy against racial dis
crimination and segregation in the public schools. Ac
knowledging the sense of stigma that attaches to the
characterization of a school as a “Negro school,” and
mindful of the admitted benefits of an integrated edu
cation in a middle class milieu, the Commissioner had di
rected that school districts remedy racial imbalance ex- 40
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30
40
44
isting within their schools. See, e.g., Fisher v. Board of
Education of the City of Orange, 1963 S.L.D. 123; Rice,
ci als. v. Board of Education of Montclair, 1967 S.L.D.
312; Paulshoro Community Action Committee v. Board
of Education of Borough of Paulshoro (April 22, 1969).
In Booker v. Board of Education, Plainfield, 45 N.J. 161,
177 (1965), however, this Court advised the Commissioner
that he had been unduly restrictive in interpreting his
scope of authority and responsibility when passing on
local steps toward desegregation. In keeping with In re
Masiello, 25 N.J. 590, 607 (1958), the Commissioner must
exercise his overriding responsibility “to make certain that
the terms and policies of the school laws are being faith
fully effectuated.” To this end, the Commissioner was
held to have abdicated his responsibility by permitting
the local Board of Education to determine for itself which
of several plans to reduce racial imbalance it would .im
plement.
This Court in Booker, relying upon both the New Je r
sey and federal constitutions, established the affirmative
duty of the Commissioner, as representative of the State,
to eliminate or reduce racial imbalance caused by de facto
segregation. The Commissioner has declined to apply the
rationale of Booker in the instant case, relying on the
distinction that Booker involved alleviation of racial im
balance within a single school district. The Commissioner
refused to act despite the specific finding that
“Because of the particular circumstances of this
case, should the districts fail to merge, the black
student population of Morristown—particularly at
the elementary school level—will suffer the same
harmful effects' that the Commissioner of Educa
tion has worked so hard to eliminate within single
school districts throughout the State.” (Ja 84)
For the officer charged with supervision and control of
all the public schools throughout the State to limit his
45
scope to racial imbalance arising within a single school
district is to import binding constitutional significance to
municipal or school district boundary lines. Such a re
stricted approach runs counter to both the New Jersey
and federal constitutions and the rationale of this Court
in Booker.
A. T h o ro u g h a n d E fficient S ystem ^
The Commissioner of Education derives his duties from
both the New Jersey and federal constitutions. He has
sworn to uphold both. B.S. 41:1-1. If the New Jersey
Legislature has fulfilled its mandate to provide for a
thorough and efficient state school system, it follows that
the Commissioner possesses all the tools necessary to im
plement this constitutional directive. Schvlts v. Board of
Education, Teaneck, 86 N. J . Super. 29, 42 (App. Div. oq
1964), air’d, mem., 45 N. J. 2 (1965), recognized the Com
missioner’s obligation to construe the statutes relating to
education in a manner which would harmonize with con
stitutional provisions, thereby creating the presumption
that the Legislature fulfilled its constitutional duty.
This Court on two occasions has elucidated “thorough
and efficient” in relation to the Commissioner of Educa
tion’s responsibilities. In Board of Education, East
Brunsicick v. Toicnship Council. East Brunswick, 48 N. J.
94 (1966), at issue was the Commissioner’s power to dis- 30
approve as insufficient the amount a local governing body
allotted to its board of education. In unequivocally hold
ing that the Commissioner possessed the power to over
rule municipal decisions of this sort, this Court grounded
its holding upon the Commissioner’s constitutionally dele
gated power to ensure the maintenance of a thorough and
efficient state school system:
“The Constitution contains a specific mandate
for the State’s maintenance and support of a
10
20
30
40
46
thorough and efficient public school system. Art.
VIII, sec. IV, par. 1. In fulfillment thereof, the
Legislature has made provision for local school
districts and State supervisory agencies. The local
school districts have been broadly directed to pro
vide ‘suitable school facilities and accommodations’
including proper school buildings and equipment
and courses of studies. R.S. 18:11-1. And the State
supervisory agencies have been vested with far
reaching powers and duties designed to insure that
the facilities and accommodations are being pro
vided and that the constitutional mandate is being
discharged.” 48 N. J. at 103-104.
Further, the Commissioner was put in the active role of
constitutional fact-finder rather than of passive rubber
stamp:
“As in Booker, the Commissioner in deciding the
budget dispute here before him, will be called upon
to determine not only the strict issue of arbitrari
ness but also whether the State’s educational poli
cies are being properly fulfilled. Thus, if he finds
that the budget fixed by the governing body is
insufficient to enable compliance with mandatory
legislative and administrative education require
ments or is insufficient to meet minimum educa
tional standards for the mandated ‘thorough and
efficient’ East Brunswick school system, lie will di
rect. appropriate corrective action by the governing
body or fix the budget on his own within the limits
originally proposed by the board of education.”
(Emphasis supplied) 48 N. ,T. at 107.
The Commissioner, therefore, must assume the respon
sibility the Constitution imposes upon him regardless of
whether the municipal entity, by vote or otherwise, con
curs in his finding. The lesson of East Brunswick, that
47
the Commissioner may override the desires of a local gov
erning body when not conducive to the maintenance of a
thorough and efficient school system, was reaffirmed re
cently in Board of Education of Elizabeth v. City Council
of Elizabeth, 55 N. J. 501 (1970). The situation was
similar to that in East BrunsivicJc, except Elizabeth in
volved a type I rather than a type .11 district. This Court
again determined that ‘‘it is the duty of the Commissioner
to see to it that every district provides a thorough and
efficient school system. This necessarily includes ade
quate physical facilities and educational materials, proper
curriculum and staff and sufficient funds.” 55 N. J. at
506.
At issue in Elizabeth was whether to provide funds
for the faculty pay increase approved by the Elizabeth
Board of Education. In affirming the Commissioner’s re
vision of the local budget allocation, this Court was con
cerned with the adverse consequences of failure to pro
vide funds sufficient to ensure a thorough and efficient
school system:
“ [i]t goes without saying that instructional per
sonnel are the core of every school system. Gen
eral competence, motivation, dedication and high
morale are absolutely essential to proper education.
Adequate salaries in an inflationary economy bear
a strong relationship to the presence of these fac
tors, in order to hold teachers and other employees
from leaving the system, to give them incentive' to
do a top-notch job and to attract good replace
ments for the inevitable vacancies that occur. All
of this is just as true, if not more so, in an urban
school district than in suburban districts, because
of the larger number of underprivileged children
generally found in city schools. Salaries that are
greatly below those being paid in nearby cities or
in non-urban school districts in the geographical
area can only result in an urban school system
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30
40
10
20
30
40
48
running downhill. There is no suggestion that the
Elizabeth salary scale, with the increases, is unrea
sonably high, competitively. Sound reason indi
cates the relation of competitive salary posture to
a thorough and efficient school system in Elizabeth.
To us it is at the same time an element of the
makeup of the community and minimum educa
tional standards which, a,s said in the previous
quotation from East Brunswick, enter into the pic
ture of a reasonably thorough and efficient school
system in a particular case.” 55 N. J. 508-509.
In evaluating the above in relation to the instant ease,
we note that here, in addition to finding the threatened
loss of instructional personnel as in Elizabeth (see item
6, below), the Commissioner found Morris Township’s
withdrawal would impose eight, other disadvantages (items
1-5, 7-9):
“1. By dint of reduced size alone Morristown High
School could not continue to provide the same
scope and variety of courses.
2. Withdrawal of Township students would mean
withdrawal of a significant number of educa
tionally highly-motivated, capable students, and
this is likely to have an adverse effect upon
the performance and motivation of the remain
ing Town students.
3. The remaining students would be, as a group,
from lower socio-economic backgrounds and be
less oriented toward academic achievement, with
the result that the program structure will have
to be drastically re-oriented.
4. The percentage of black students in the High
School will be approximately as stated above:
49
with Harding and Morris Plains, 27% in 1974
and 3o% in 19S0; without Harding and Morris
Plains, 44% in 1974 and 56% in 1980.
5. Morristown High School will not he able to
maintain its place in the scale of excellence in
terms of breadth and quality of program.
1(
6. It is probable that, as a consequence, it mil
have more difficulty in keeping and attracting
the same high quality faculty.
7. With the change in program and reputation and
the loss in tuition revenue, it is possible that
the Town will not be as able or as willing to
support financially its school system as it cur
rently is.
20
8. The Township students will be denied the privi
lege of an integrated education.
9. The sudden alteration in the racial composi
tion of the High School might aggravate the
tendency of potential white buyers to avoid pur
chasing houses in Morristown.” (Ja S2, 83)
If the Commissioner possesses the power and the duty
to see that high quality personnel remain in the school ^
system and to appropriate sufficient funds to ensure their ^
retention, he surely lias the power and duty to ensure the
retention of Morristown’s high quality personnel in the
face of Morris Township’s threatened withdrawal. His
duty here is of course more acute in light of the addi
tional educational harm resulting from Morris Town
ship's withdrawal or failure to merge. If the concept
of home-rule yields to the “thorough and efficient” clause
with respect to the most fundamental of all local pre
rogatives, the power to tax. then control over local schools 40
uv
surely cannot claim exemption from the Commissioner’s
duty to provide for “the maintenance and support of a
thorough and efficient system of free public schools.”
East Brunswick and Elizabeth illustrate that the Com
missioner may, acting pursuant to Art. VIII, Sec. IV,
pai. 1, determine that the actions of a local entity do not
10 measure up to the standards dictated by the “thorough
and efficient clause—i.e., failure to correct such local
actions will cause educational harm to the school district.
Further, upon making that determination, he may dic
tate the exact means by which the municipality must
comply with that constitutional standard. Is it not then
axiomatic that the Commissioner possesses the constitu
tional power to direct that one school district act in such
a manner as not to educationally harm another? If the
Commissioner possesses the power and duty to sc-e that
20 a school district does not act in a manner so as to harm
itself, it surely cannot be said that he lacks the power or
is under any less of a duty to act when the threatened
harm is to another district under his control.
8 . R a tio n a le o f B ooker
The law is well-settled that racial segregation in public
schools is unconstitutional, for it creates conditions of
unequal educational opportunity and tends to adversely
30 affect the learning of pupils so deprived. Brown v. Board
of Education, 347 IT. S. 4S3 (1954). Although Brown
arose in the context of state-legislated segregation, this
Court in Booker recognized that the effect of segregation
rather than its cause was the significant element:
“Although such feeling and denial [of equal educa
tional opportunities] may appear in intensified
form when segregation represents official policy,
they also appear when segregation in fact, though
not official policy, results from long standing hous-40
51
mg and economic discrimination and the rigid ap
plication of neighborhood school districting.” 45
N. J. at 168.
It is for this reason that the Commissioner of Education
and the courts of New Jersey have not shut their doors
to petitioners complaining of denials of equal educational
opportunity resulting from de facto rather than de jure 10
segregation.*
* In the years since this Court in B o o k e r rejected the B e l l
and D o w n s approach, the definition of state-created segregation
has been broadened and the notion that only d e j u r e segregation
need be corrected has undergone severe erosion. See D a v i s v.
S c h o o l D i s t . o f C i t y o f P o n t i a c , 309 F. Supp. 731, 737 (E. D.
Mich. 1970):
“ It therefore becomes the duty of this Court, to sift on
through the maze of incidents which contributed to the u
present situation; and, inasmuch as segregation admittedly
exists in the school system it must be determined if and
where failures or omissions on the part of defendants
may Lave occurred and what, if anything, now can be
done. ’ ’
Accord, U n i t e d S t a t e s v. S c h o o l D i s t . N o . 1 5 1 , 404 F. 2d 1125
(7th Cir. 1968), 432 F. 2d 1147 (7th Cir. 1970); S p a n g l e r v.
P a s a d e n a C i t y B o a r d o f E d u c . , 311 F. Supp. 501 (E. D. Cal.
1970) ; C r a w f o r d v. B o a r d o f E d u c . o f L o s A n g e l e s , N o . 8 2 2 -
8 5 4 (Super. Ct. Cal.. Feb. 11, 1970).
30See also B r e w e r v . S c h o o l B o a r d o f C i t y o f N o r f o l k , 397 F.
2d 37, 41-42 (4th Cir. 1968):
“ Upon remand the district court should determine
whether the racial pattern of the districts results from
racial discrimination with regard to housing. If resi
dential racial discrimination exists, it. is immaterial that
it results from private action. The school board cannot
build its exclusionary attendance areas upon private racial
discrimination. Assignment of pupils to neighborhood
schools is a sound concept, but it cannot be approved
if residence in a neighborhood is denied to Negro pupils
solely on the ground of color.”
10
20
30
40
52
When the threatened educational harm needed to trig
ger the Commissioners response under the “thorough and
efficient” clause centers around impending severe racial
imbalance, Art. I, par. 5 of the New Jersey Constitu
tion amplifies his duty, declaring that “ fn]o person shall
be . . . segregated . . . in the public schools, because of
religious principles, race, color, ancestry or national or
igin.” The Commissioner must, therefore, use the statu
tory powers given him by legislation enacted pursuant to
the “thorough and efficient” clause to eliminate racial im
balance from New Jersey’s public schools. The rationale
for this view is found in Booker:
“In a society such as ours, it is not enough that
the 3 R’s are being taught properly for there are
other vital considerations. The children must learn
to respect and live with one another in multi-racial
and multi-cultural communities and the earlier they
do so the better. I t is during their formative school
years that firm foundations may be laid for good
citizenship and broad participation in the main
stream of affairs. Recognizing this, leading educa
tors stress the democratic and educational advan
tages of heterogeneous student, populations and point
to the disadvantages of homogeneous student popu
lations, particularly when they are composed of a
racial minority whose separation generates feelings
of inferiority. It may well be, as has been sug
gested, that when current attacks against, housing
and economic discrimination bear fruition, strict
neighborhood school districting will present no prob
lem. But in the meantime the states may not justly
deprive the oncoming generation of the educational
advantages which are its due, and indeed, as a na
tion, we cannot afford standing by. It is heartening
to note that, without awaiting further Supreme
Court pronouncements, some states, including our
53
own, have taken significant legislative or adminis-
tia ti\e steps towards the elimination or reduction of
de facto segregation. 45 N.J. at 170-71.
The brand of inferiority attached to a “Negro” school
is no greater when compared with another school in the
district than with another school outside the district but
within the community in which the black children “study, 10
serve, and work.” See Booker, 45 N.J. at 17.9 fn. 2. The
Commissioner specifically found that the community with
which Morristown residents, including students, identify
extends beyond the bounds of the Town and encompasses
the Township (Ja 84). He also found that:
“The disparity in the racial composition of the
two school sj'stems is emphasized by a comparison
of the schools that are located near each other. The
Town’s Thomas Jefferson School with its 48% black £0
enrollment is very close to the Township’s Wood
land School with zero percent black enrollment. Geo
graphic proximity also invites attention to George
Washington School (Town, 45%) and Normandy
Park School (Township, 9%) and to Lafayette
Junior High School (Town 42%) and Alfred Vail
School (Township, 10%). Alexander Hamilton
. School (Town, 35%) is equidistant between Sussex
Avenue School (Township, 5%) and Hillcre.st School
(Township, less than 1%).” (Ja 76)
Beyond question if these statistics [and especially the pro
jections, accepted by the Commissioner, that the Morris-
. town elementary schools will be 70% black by 1980 while
the Township elementary schools wall remain at 5% black
(Ja 76, S4)] were relied upon in a controversy before the
Commissioner in the context of a single school district, he
would order the board of education to effectuate greater
racial balance. See the Commissioner’s decision in the in
stant. ease: 40
54
‘[Sjhonld the districts fail to merge, the black stu
dent population of Morristown—particularly at the
elementary school level—will suffer the same harm
ful effects that the Commissioner of Education has
worked so hard to eliminate within single school
districts throughout the State.” (Ja 84)
10 See also, e.g., Rice, et als. v. Board of Education of Mont
clair, 1967 S.L.D. 312; Paulsboro Community Action Com
mittee v. Board of Education of Borough of Paulsboro.
(Comm, of Education, April 22, 1969.)
The Commissioner acknowledged that the racial disparity
between the Town and Township elementary schools is
stark:
‘‘The Town’s K-12 black enrollment as of May 1969
was 39%; projections indicate a 55% black emroU-
jU m m t 1980. _ These figures are in sharp contrast
to the Township’s white enrollment of 95% and the
close proximity of the Town and Township elemen
tary schools makes the disparity easily visible to
and easily felt by the students of the two districts ”
(Ja 84).
the above statistics, precisely the type which concerned
this Court in Boolcer, reinforced by the specific findings of
educational harm listed in 1(A) above, support the Com-
30 missioned expert opinion that Morristown students will
be deprived of equality of educational opportunity should
Morris Township be permitted to sever its educational
ties with Morristown. Booker also focused upon the edu
cationally adverse results of racial imbalance, concluding
that “the goal here is. a reasonable plan achieving the
greatest dispersal consistent with sound educational values
and procedures.” 45 N.J. at ISO. The result-oriented ap
proach is also highlighted by the cases cited approvingly
by tills Court in Booker—Barksdale v Spring field School40
Committee, 237 F. Supp. 543, 546 (D. Mass. 1065), vacated
on other grounds, 348 F. 2d 261 (1st Cir. 1965):
‘‘The question is whether there is a constitutional
duty to provide equal educational opportunities for
all children within the system. While Brown an
swered that question affirmatively in the context of
coerced segregation, the constitutional fact-—the in- •.«
adequacy of segregated education—is the same in
this case, and I so find. It is neither just nor sen
sible to proscribe segregation having its basis in
affirmative state action while at tbe same time fail
ing to provide a remedy for segregation which grows
out of discrimination in housing, or other economic
or social factors. Education is tax supported and
compulsory, and public school educators, therefore,
must deal with inadequacies within the educational
- system as they arise, and it matters not. that the 20
inadequacies are not. of their making. This is not
to imply that the neighborhood school policy per se
is unconstitutional, but that it must be abandoned
or modified when it results in segregation in fact.”
Jackson v. Pasadena City School Dust., 59 Cal. 2d S76, 3],
Cal. Rptr. 606, 3S2 P. 2d S78 (4963): *
* “So long as large numbers of Negroes live in segre
gated areas, school authorities will be confronted
with difficult problems in providing Negro children 30
with the kind of education they are entitled to have.
Residential segregation is in itself an evil which
tends to frustrate the youth in the area and to cause
antisocial attitudes and behavior. Where such segre
gation exists it is not enough for a school board to
refrain from affirmative discriminatory conduct The
harmful influence on the children will be reflected
and intensified in the classroom if school attendance
is determined on a geographic basis without correc
tive measures.’ The right to an equal opportunity 40
OD
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30
40
56
for education and the harmful consequences of seg
regation require that school boards take steps, in
sofar as reasonably feasible, to alleviate racial im
balance in schools regardless of its cause.” 382 P.
2d, at pp. 881-S82.
See also Vetere v. Allen, 41 Misc. 2d 200, 245 N.Y.S. 2d
682 (Sup. Ct. 1963), modified Vetere v. Mitchell, 21 A.D.
2d 561, 251 N.Y.S. 2d 480 (1964); aff’d Vetere v. Allen,
15 N.YT. 2d 259, 258 N.Y.S. 2d 77, 206 N.E. 2d 174 (1965),
cert, denied, 382 U.S. 825 (1965).
The rationale of Booker, that the denial of equal educa
tional opportunities is repugnant to New Jersey’s strong
state policy against racial discrimination, must apply with
equal force with respect to every school child in the State.
Presumptively, the unit of analysis should be the local
school district, since this is probably also the larger set
ting of the students’ lives—the setting in which they
“study, serve and work.” However, where this is manifestly
not true, and the school district line arbitrarily fragments
the larger setting and does so in such a way as to pro
duce prejudicial imbalance as between schools serving this
community of children, then the presumption fails and the
district line must yeld to constitutional principle, just as
neighborhood school districts adopted under N.J.S. 18A:
33-1 must yield to the principle when it creates imbalance.
Surely the Constitution does not stop at the school dis
trict line.
See Blumrosen, “Antidiscrimination Laws in Action in
New Jersey: A Law—Sociology Study”, 19 Rutgers L.
Rev. 189, 267 (1965):
“If the schools in the adjoining communities can
be viewed as part of the total educational resources
available for solving a segregation problem, then
the potentialities for reducing racial imbalance in
creases extensively. This broader view increases the
10
20
30
40
o t
number and racial composition of schools which can
be taken into account in any arrangement of school
attendance patterns. The logic which led the Com
missioner to declare that the neighborhood school
concept was not inviolate should lead him, also, in
appropriate circumstances, to look beyond the muni
cipal boundary.’' (Emphasis supplied).
See generally, Note, “Racial Imbalance and Municipal
Boundaries—Educational Crisis in Morristown,” 24 Rut
gers L. Rev. 354 (1970).*
C. T re a tm e n t o f Schoo l D is tr ic t B o u n d a ry L ines.
Education is the function of the State, and, as such,
must be made available to all on equal terms. Brown v.
Board of Education, 347 U.S. 4S3, 493 (1954). The doc
trine of equal educational opportunity flowing from the
equal protection clause of the 14th Amendment and from
Art. 1, par. 5 of the New Jersey Constitution speaks to the
State, and the Commissioner of Education acting for the
State must exercise his powers in a manner consistent
with these constitutional constraints.
The 14th Amendment recognizes no governmental unit
smaller th&n the State; in the eyes of the federal Consti
tution local discriminatory action constitutes state action.
Cooper v. Aaron, 358 U.S. 1, 16 (1958). The mandates of
the equal protection clause, therefore, cannot be cireum-
* Counsel for Morris Township Board of Education in Ms pa
pers opposing certification by this Court attempts to have the
Court disregard this article, saying it was written by a full time
employee of the firm of counsel for the Morristown Board of
Education. In fact, the article was submitted by a Rutgers stu
dent who happened to be a part time clerk with said firm and
who had no connection with this ease, as an independent work in
his law review capacity. We suggest the article be considered as
its merits may dictate.
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03
\ ented by fragmenting the state into smaller geographical
units.* Cf. Hall v. St. Helena Parish School Board, 197
F. Supp. 649, 65S (E.D. La.), aff’d. 2S7 F. 2d 376 (5th Cir.
1961), aff’d. mem., 368 U.S. 515 (1962), wherein a three-
judge district court struck down a Louisiana statute which
permitted local districts to shut down their schools, con
vey the buildings to the “private” schools contemplated to
fill the educational void, and have the State give financial
aid to these private schools. The court held that the stat
ute violated the equal protection clause by discriminating
geographically within the state. See 1 United States Com
mission on Civil Eights, Racial Isolation in the Public
Schools, 259 (1967):
“A state cannot avoid its obligation under the equal
protection clause by fragmenting the decision rnalc-
'* See L u m p k i n v. D e m p s e y , Civ. No. 13,716 (D. Conn., Jan. 22,
1971) (three-judge court), wherein plaintiffs sought to invalidate
the Connecticut, law requiring political subdivision to operate
separate school districts (cf. N.J.S. ISA :S-1) because it frus
trated desegregation of urban districts. The State’s motion to
dismiss was'denied, but on a theory which seems broader than
merely the constitutional attack on the statute:
This action raises the problem of whether there exists in
Connecticut, specifically in the Hartford area and sur
rounding communities, unconstitutional segregation of
whites and minority groups into separate school districts.
Although the legal issues surrounding situations which
create de facto as opposed to de jure segregation are by no
means clear, there is ease law which suggests that since
the primary responsibly for education and educational
facilities lies with the state [ B o a r d o f E d u c a t i o n o f T o w n
o f E l l i n g t o n v. T o w n o f E l l i n g t o n , 151 Conn. 1, 193 A. 2d
466 (1693)], the courts may, in come circumstances, ex
amine the problem of segregation in the schools on a state
wide basis even though there is no reason to believe that
the presently existing school districts were established for
racially related reasons. Id., Slip. op. at p. 2 (per cur
iam).
59
ing or by pleading the very political lines which the
State itself created.”
See also, Gomillipn v. Lightfoot, 364 U. S. 339, 344-45
(1960):'
“ [TJhc Court lias never acknowledged that the
States have power to do as they will with munici
pal corporations regardless of the consequences.
Legislative control of municipalities, no less than
other state powers, lies within the scope of relevant
limitations imposed by the United States Constitu
tion.”
The recent “one-man-one-vote” decisions involving re
districting at both the state and national levels reveal
judicial acknowledgment that the equal protection clause
mandates that the State be treated as an undivided en
tity to ensure that no citizen’s right to vote is diluted on
account of place of residence. See, e.g.,' Reynolds v. Sims,
377 U. S. 533, 568 (1964), wherein the U. S. Supreme
Court invalidated voter lines which did not guarantee
“one-man-one-vote” because they were based upon the
political subdivision rather than upon the state as a single
entity.
The right to equality of voting power can be no more
fundamental or favored a right than the right to equality
of educational opportunity. See Brown v. Board of Edu
cation, 347 U. S. 483, 493 (1954), wherein Chief Justice
Warren grounded the 14th Amendment right to equality
of educational opportunity upon the fundamental proposi
tion that:
“Today, education is perhaps the most important
function of state and local governments. Compul
sory school attendance laws and the great expendi
tures for education both demonstrate our recogni
tion of the importance of education to our demo-
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6 0
cratic society. It ls required in the performance of
ur most basic public responsibilities, even service
in the armed forces. It is the very foundation of
good citizenship. Today it is a principal instrument
m awakening the child to cultural values, in pre
paring him for later professional training, and in
10 ? ing hlm t0 adJ,lst normally to his environment
n these days, it is doubtful that any child may rea-
sonably be expected to succeed in life if he is de
med the opportunity of an education. Such an on
portumty, where the state has undertaken to pro
vide it, is a right which must be made available to
all on equal terms.” '
See also Kirp, ‘‘The Poor, the Schools and Equal Pro
W Tf Z T al Educati0"al Opportunity 139 n 969)!
20 , ght’ Pubbc Sch°o1 Desegregation: Legal Remedies
foi De Facto Segregation,” 40 N.Y.1J.1, Rev. 285 (1965).
This Court in Jones v. F alcey, 48 N J 25 97 m o rn
ollowmg U. S. Supreme Court pronouncement’s, he d 2
in ZSZZmstrkt t f of 1066 ™ -
equaHtyf ‘mpm'mMS'bI° deviations from total voter
“The command is to achieve population equality ‘as
ne.u y as practicable,’ and if equality would be more
30 1 ; J neved shifting whole municipalities to
a contiguous district, the draftsman ha not
achieved equality ‘as nearly as practicable’, unless
some other constitutionally tenable reason (if there
he W T bf , Sl,°,"'n t0 j "Sti,y the disparity. 7 , the lines of political subdivisions are ignored there
m no apparent reason for not achieving ma,he!
mat,cal equality, subject of course to inevitable le
minimis variations.” Die ae
40 See also, Jackman v. Bodine, 49 N. J. 406 (1967)
G1
School districts, coinciding with municipal boundary
lines pursuant to N.J.S. 1SA:8-1, are convenient repos
itories of local, day-to-day power. Their inviolability,
however, cannot exceed that of the local lines with which
they are coterminous. Since municipalities are mere cre
ations of the State, possessing only so much power as is
delegated by the State, it would seem to follow that the
local school district boundary does not have controlling
constitutional significance when subjected to the rigors
of the equal protection clause.
The Federal Courts in recent decisions, relying on the
principle that education is the obligation of the State,
have not hesitated to require consolidation of separate
black and white school districts. Haney v. County Board
of Education, Sevier County, 410 F. 2d 920 (8th Cir.
1969); U. S. v. Bright Star School District No. 6, Civ. Mo.
T-69-C-24 (W. D. Ark., April 15, 1970); U. S. v. Texas,
Civ. No. 1424 (E. D. Tex., Dec, 4, 1970). Relying upon
the same principle, they also prevented the establishment,
by secession or de-annexation, of racially imbalanced
school districts. U. S. v. Halifax County Board of Edu
cation, 314 F. Supp. 65 (E. D. N. C. 1970); Turner v.
Warren County Board of EducationK 313 F. Supp. 380
(E. D. N. C. 1970); Wright v. County School Board of
Greensville County, 309 F. Supp. 671 (E. D. Va. 1970);
Burleson v. County Board of Election Commissioners of
Jefferson County, 308 F. Supp. 352 (E. D. Ark.), aff’d
per curiam, 432 F. 2d 1356 (8th Cir. 1970).
In Haney, the district court held that the all-black
school in one district and the all-white school in another
district one-half mile away were not segregated schools
since they existed in separate school districts. The Eighth
Circuit reversed, holding that the two disti'icts, located
within the same county, must effectuate a fully integrated
combined school system. The school district boundary
line could not shield the all-white district from the obli
gations imposed by the Fourteenth Amendment.
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62
The Federal Government sued the State Education
Agency in U. S. v. Texas, supra, to dissolve a number of
all-black districts created in Texas prior to 1954. The
court granted relief by way of consolidation, holding that
not only was the initial establishment of these segregated
districts a violation of the Constitution, but continued state
financial and other support constituted a continuing Four
teenth Amendment breach:
“Prior to the commencement of this action, the de
fendant county boards of education had, in each in
stance, denied, avoided or failed to consider or or
der the consolidation of these all-black and educa
tionally inferior districts into adjacent units under
their jurisdiction. The defendant State Agency
has, in each instance, financed, provided textbooks
for, accredited, and otherwise assisted in the oper
ation of the all-black districts. Finally, the State
has approved the detachments and annexations of
territory and the interdistrict transfers of students,
and has demonstrated its approval by financing the
newly created units and “receiving” districts. In
this regard, the State Agency has made no attempt
to exercise a supervising function to see that no
agency of the State pursues actions and practices
which contravene the requirements of Title VI and
the Fourteenth Amendment.”
U. S. v. Texas, supra, slip op. at p. 7; accord, Godivin v.
Johnston County Bd. of Educ., 301 F. Supp. 1339 (E. D.
N. C. 1969); United States v. Georgia, Civ. No. 12972
(N. D. Ga., Dec. 15, 1969); Cf. Keyes v. School District
No. 1 , Denver, 303 F. Supp. 279 (D. Colo. 1969).
Thus, ample precedent exists for the proposition that,
since education is a state function and the Fourteenth
Amendment recognizes no governmental agency smaller
than the State, the State must consolidate or merge school
63
districts where failure to do so fosters unequal education
al opportunities.
In Halifax the issue was the constitutionality of a North
Carolina statute carving a separate administrative unit
out of the Halifax County school system. The act was
attacked as violative of the State’s duty under the equal
protection clause to dismantle its dual school system. The
effect of the new unit in racial terms would have been to
increase the percentage of black students in the Halifax
County system from 77% to 83%, while the proposed new
Scotland Neck unit would have a 50% black student pop
ulation. The district court would not permit the separa
tion of the units, holding that the act served no state in
terest and prevented the Halifax County Board of Edu
cation from complying with a desegregation order.
Analogously, Morris Township’s severance of educa
tional ties with Morristown would not permit Morristown
to comply with New Jersey’s continuing order to eliminate
racial imbalance in its schools pursuant to Boolcer. See
Engelhardt Report, Ja 310: “The Morristown pre-high
school system will, in the near future, become predomi
nantly Negro and no resources exist within the Town to
delay or reverse the trend.” (See also T746, 747).
The basis of the Court’s decision in Halifax and the
factors it looked to are applicable to the present situa
tion :
“What this Court is now faced with is assessing
the results of the creation of the new unit strictly
in terms of the effect it has on the relationship of
those students residing within the corporate limits
of Scotland Neck and those residing in Halifax
County. The creation of the new unit does take
some of the white students out of the Halifax
County unit and thereby does reduce the propor
tion of whites in a school system already topheavy
with black students.” 314 F. Supp. at 7S.
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64
See also, Turner v. Warren County Board, of Education,
313 F. Supp. 380 (E. D. N. C. 1970), wherein another
North Carolina statute forming the basis for the separa
tion of two small school units from the Warren County
School system was declared unconstitutional and the school
district line eradicated.
IQ Wright dealt with the attempt by the city of Emporia
to withdraw from the Greensville County, \ irginia, school
system. The proposed city school system was to be 48.3%
white and 51.7% black, while the county schools were
27.8% white and 72.2% black. On the basis of the finding
that “ [t]he establishment of separate systems would plain
ly cause a siibstantial shift in the racial balance,” 309 F.
Supp. at 678, the court could not approve the proposed
plan. Particularly disturbing to the court in Wright was
the reality that:
20 «[I]f secession occurs now, some 1,888 Negro resi
dents must look to this system alone for their edu
cation, while it may be anticipated that the pro
portion of whites in county schools may drop as
those who can register in private academies. This
Court is most concerned about the possible adverse
impact of secession on the effort, under Court di
rection, to provide a unitary system to the entire
class of plaintiffs.” 309 F. Supp. at 680.
30 The Commissioner below was equally concerned about
the adverse impact on the school children remaining in the
Mon-istown school system should the districts fail to
merge:
“Should the districts fail to merge, the black stu
dent population of Morristown—particularly at the
elementary school level—will suffer the same harm
ful effects that the Commissioner of Education has
worked so hard to eliminate within single school
districts throughout the State.” (.Ja 84).40
65
See also the Commissioners findings regarding the impact
on Morristown caused by Morris Township’s proposed
withdrawal from the sending-receiving relationship (Ja
82, 83).
Burleson presented the question “whether white inhab
itants of a geographically isolated portion of an Arkansas
public school district faced with an obligation to integrate
its schools may validly employ the Arkansas school and
election laws so as to secede from the parent district and
establish an autonomous district of their own.” 308 F.
Supp. at 352. The population of the area desiring to se
cede was almost exclusively white, while the school pop
ulation of the district was 55% black.
Although there was no question that the secession fully
comported with Arkansas school law, the court could not
sanction an action under its findings of facts:
(1) The secession of the area would infiict severe
damage upon the distinct financially.
(2) If the district has to bear the loss of tuition
revenues caused by secession, it is doubtful at best
that it can provide any kind of quality education
for its students.
(3) [It will find it most difficult to employ and re
tain in employment competent personnel, particular
ly people who are willing to work and teach in an
integrated school system.
(4) The secession, if permitted, would substantial
ly increase the racial imbalance in the District’s
student bodies.
(5) Considering together the financial impact of the
secession and the increased racial imbalance result
ing therefrom, it is fairly inferable that there will
be some exodus from the District’s schools of white
students now residing in the District, and it is
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66
possible that tlie entire system will become in effect
an all black system with only a token number of
white students in attendance. 309 F. Supp. at 358.
The findings of the Commissioner below mirror those
of the Court in Burleson (Ja 82, 83).
School district boundary lines, therefore, must give way
to more compelling constitutional law or policy requiring
the elimination or reduction of racial imbalance in the
schools of the state. Although the above-mentioned fed
eral cases all announce the constitutional fact that school
district lines are subservient to the command of the 14th
Amendment, attempt may be made to distinguish these
cases on the basis that all the districts therein were un
der federal desegregation orders. Such a distinction lacks
significance, however, for all school districts in the State
of New Jersey are under a State-imposed “desegregation
order” to correct “substantial racial imbalance which may
be educationally harmful.” Booker, 45 N. J. at 181. The
scope of that order, also delineated in Booker, is demand
ing and far-reaching: “a reasonable plan achieving the
greatest dispersal consistent with sound educational val
ues and procedures.” 45 N. J. at 180.
The Commissioner’s failure to adhere to the mandate
of Booker resulted, in large part, from his misconception
that to afford relief to petitioners would be tantamount
to an ultra vires declaration that certain statutes were
unconstitutional:
“. . . the position of Commissioner is a creation of
the Legislature and the individual holding that po
sition derives his authority from the Legislature.
For him to determine that the legislative scheme is
unconstitutional as applied to the Morristown-Mor-
ris Township situation, and attempt himself to ef
fect a correction, he would have to rise above the
source of his power.” (Ja 109).
67
But granting the relief petitioners seek need not im
plicitly or otherwise carry with it a declaration of un
constitutionality. Rather, when constitutional rights are
at stake,
“ [the] assertion that [the court] is bound to adhere
to [state] law, unless the state law violates some
provision of the Constitution, is not constitutionally -̂ q
sound where the operation of the state law in ques
tion fails to provide the constitutional guarantee
of a non-racial unitary school system.”
Haney v. County Bd. of Educ., 429 F. 2d 3G4, 368 (Sth
Cir. 1970). This is illustrated by the recent interlocutory
decision in Bradley v. School Bd. of City of Richmond,
Civ. No. 3353 (E.D. Va., Feb. 10, 1971), wherein the
Court held that forced merger of school districts would
not be inimical to the state legislative scheme, and that 20
even if there were a conflict, relief could be granted
without holding state statutes unconstitutional:
“When the statutory framework is viewed as a
whole, therefore, it is readily apparent that state
law would not he violated by the creation by the
defendants of a joint school system, by contract or
otherwise, involving assignment of pupils between
political subdivisions. . . .
Assuming arguendo that this Court, in granting the
relief requested, required certain of the defendants U
to fail to comply with a requirement of state law,
such an order would not necessarily imply a hold
ing that the statute violated was unconstitutional.
A distinction exists between what is sought as a
form of relief within the power of a court of
equity and what is sought as a matter of primary
constitutional right, irrespective of the legality of
past conduct by the parties sued.” Id., slip op. at
pp. 6-8. 40
68
The theory advanced by the Commissioner would mean
that if the state Legislature did not look ahead and pro
vide effective procedures under existing law for the ef
fectuation of constitutional rights, there could be no rem
edy. Of course, the Commissioner as a state officer is
bound to enforce the federal Constitution, Marbury v.
Madison, 1 Cranch 137 (1803), as well as the New Jersey
Constitution. R.S. 41:1-1. His failure to do so amounts
to his interpreting New Jersey law to mean that the
Legislature sanctions racial segregation because it did
not specifically legislate the particular means to be used
in the present situation. Further, the command of Booker
cannot be so restricted as to exclude from its purview
a reasonable, feasible plan encompassing the larger set
ting in which the students “study, serve and work.”
Under these circumstances, the very boundary lines which
2Q normally act to facilitate educational goals must not be
permitted to stand where their retention has been found
to deny equality of educational opportunity arbitrarily
among community residents.
D. T h e M orristown A rea Com m unity as th e Unit
In order to determine whether school children are be
ing provided with an equal educational opportunity, or
whether actionable racial imbalance exists, it first be
comes necessary to define further the geographical area
3Q over which measurement will be made. We noted above
that one may rebuttably presume that the municipality
and school district lines generally describe the proper
area. However, this is so for reasons of convenience and
because they generalfy reflect the area where the children
“study, serve and work,” as mentioned in Booker. This is
the appropriate test. Schooling should be conducted in
the same setting in which the other aspects of life are and
will be lived; and with the other children with which the
student null be interacting in his daily life.
40
69
The name for this setting, we submit, is the “com
munity.” That word is sometimes used loosely, but, as
explained below by Candeub, it has a clear and specific
meaning for this purpose.
“A ‘community’ has a territorial base; it is an area
that can be generally described and defined. Its
borders may be a mountain or stream, or a man- jq
made object such as a major highway or park, or
it may even be a changing border such as the line
where the houses meet the open fields, or it may
be the boundary line of a town, city or other level
of government that effectively establishes the outer
limit of the community. In some instances, it is
not so much a line as a general area in which the
influence of one group of foi’ces becomes marginal
relative to another to the point where the other
influences begin to predominate. 20
“Living together in a comunity creates a situa
tion of multiple interaction and organic interde
pendence within the spatial area of the community
of people, institutions and activities. The inter
action and interdependence provides the social ben
efits and social cohesion that overcomes conflicts
between groups and interests and works to the en
richment of the level of experience and interests
of all concerned. It is a symbiotic relationship of
infinite complexity and variations that man has 30
tended to create about him wherever he has lived.
“Further Characteristics
a. Form of Territorial Base
The territorial base of a community generally
has a defined pattern of development that re
flects and is a manifestation of the activities of
the community, its man-made structures and im
provements, and its relation to the broader re- 40
70
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gion in which it is located. Within any given
community, certain focal points serve as gen
eral points of orientation to most of its inhabi
tants. There are ‘nodes’ or major collecting
points for activities which relate to a large pro
portion of the population. Certain routes be
come common ‘pathways’ for movement into,
within, and out of the area. The general ‘tex
ture’ of the community, in terms of older neigh
borhoods, newer neighborhoods, high density,
and low density is well recognized by the ma
jority of the people in the community.
“b. Continuity Over Time
The interaction of people and interests takes
place over a period of time, and patterns are
established by the continuation of such inter
action on a stable basis. Likewise, the quality,
role, and strength of institutions are in part de
rived from their continuity over extended time
periods. As a consequence, there is a time as.
well as a spatial dimension contained in the con
cept of community.
“c. Role of Community Center
In the United States the reference point for
community identity has frequently been with
relation to a community center. This center,
with its common or green, its public buildings,
churches, stores, shops, banks and various in
stitutions, was the hub for the outward growth
of the community. The perimeter was wherever
the buildings ended in the fields, woodlands and
hills surrounding the town. While the single
center has been increasingly replaced by mul
tiple centers the concept that the community
has a central core or complex of activities and
71
institutions that serve the entire community
continues to be relevant. The physical form of
this core has been changing to provide more
land and more facilities to the expanding ac
tivities of private industry, government and in
stitutions.” (Ja 253 to 255).
Based upon these criteria, Candeub found that Morris- 10
town and Morris Township constitute a single community.
The facts underlying this are set forth in the state
ment of facts, supra, and developed in the Candeub report.
They are comijelling. The Township did not dispute this
in the slightest, and the Commissioner found as a fact that
Morristown and Morris Township form a single com
munity (Ja 81).
The facts proven here defeat the presumption that
particular municipal lines describe the community, and 20
are also sufficiently compelling to offset the “reasons of
convenience”, mentioned above, which otherwise tend to
favor use of the municipal lines. These reasons of con
venience include the municipal organization for tax allo
cation and for school election purposes. In this instance,
however, the offset of convenience factors is greatly facil
itated because the factual community includes the whole of
two municipalities, making the combined tax and election
facilities conveniently available, as under the voluntary
regionalization statute. N.J.S. 1SA.T3-34. The presump- 30
tion attaching to municipal lines as community boundar
ies might require more deference in a situation where a
municipality were alleged to be composed of two or more
communities, resulting in a fragmentation of a munici
pality, than in a case such as this where community lines
have been found to follow the outer boundary of a two
municipality area, including the whole of both.
This Court in Booker required that a plan to eliminate
racial imbalance must be “a reasonable plan achieving the 40
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72
greatest dispersal consistent with, sound educational values
und procedures.” 45 N.J. at 180.' The only limitation placed
upon this was that the plan be subject to practical con
siderations :
“Considerations of safety, convenience, time econ
omy and the other acknowleged virtues of the neigh
borhood policy must be borne in mind. Costs and
other practicalities must be considered and satisfied.
And trends towards withdrawal from the school
community by members of the majority must be
viewed and combatted, for if they are not, the re
sult may be as frustrating as the inaction com
plained about by the minority.” 45 N.J. at 180.
Reference to the record and the Commissioner’s decision
reveals that each of these considerations are consistent
with a plan to achieve racial balance throughout the Mor
ris town area community—“a reasonable plan achieving the
greatest disperal consistent with sound educational values
and procedures:”
1. Considerations relating to neighborhood policy.
The highly respected policy of neighborhood school as
signment, while favored, is no longer sacrosanct in New
Jersey. Booker v. Board of Education, Plainfield, 45 N.J.
161 (1965); Morean v. Board of Education, Montclair, 42
N.J. 237 (1964). However, where the neighborhood school
concept can be preserved, if not enhanced (Ja 312, 250;
T753, 754), objection to the Morristown community as the
focal unit cannot be sanctioned.
The combined district is less than 20 square miles, it is
a compact unit, and it presents no problems insofar as
distance is concerned (Ja 230, 256, 258, 312; T753). Con
sideration of time economy is thereby satisfied by refer
ence to the community.
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73
Convenience which preserves or even enhances the neigh
borhood school concept is also found when the unit of
analysis is the community. Many of the Morristown-Morris
Township neighborhoods are split by this boundary line
(Ja 81, 263; T155, 225, 226). Further, the elementary
schools of the Town are located in close proximity to the
border line between itself and the Township, while the
Township elementary schools all lie close to the Town line.
(Ja 73, 250, 313; T753, 754).
One distinct advantage of neighborhood attendance pat
terns is the reduction of bussing necessary to transport the
students to and from school. Credible evidence was ad
duced that transportation and bussing problems and costs
will not be increased significantly, if at all under a merged
system:
“"While many decisions concerning the location and
organization of buildings must be made before
transportation patterns can be established, it is clear
that distance in itself will not be a problem. Pres
ently, the Township transports nearly all its stu
dents, while the Town transports between 25 and 30
per cent. Actual bussing patterns in a merged dis
trict will depend on a number of decisions concern
ing facilities and organization. With so many stu
dents in the two districts already transported, it is
unlikely that a merged system would significantly
increase the number, and it is possible that fewer
might be required to ride the bus. Few additional
riders would be added from among Morristown resi
dents attending non-public schools, since most of
these live less than two miles from their school. To
offset these costs would be some state aid for Mor
ristown students.' Transportation will not be a ma
jor factor in decisions concerning merger.
“The geographical fact that the elementary schools
of both districts surround the Town roughly along
74
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40
the Town line and hence form an inner ring in the
Morristown-Township community has been noted,
as well as the fact that the schools are relatively
close together. These locations mean that students
for any given school may come from both within
the ring (Morristown) and outside the ring (Town
ship). Since the vast majority of the Negro students
live in Morristown, the locations of the schools
would seem to he highly susceptible to racial bal
ancing without cross bussing. An examination of
existing geography reveals that both neighborhood
schools and racially balanced schools can be
achieved. New elementary schools as needed could
be so placed as to achieve the same goals.” (Empha-.
sis supplied) (Ja 312, 313; See also, Ja 89—p. 4, 5;
T753, 754, 1302)
2. Considerations relating to costs.
As shown, the merged distinct will incur no additional
costs as a result of bussing. Merger is also economically
feasible, particularly insofar as the Morris Township tax
payer is concerned. The Township debt is currently ap
proximately double the Town’s debt. Under merger, where
capital indebtedness of each district in the merger is as
sumed by the new district, Township taxpayers will be
saved some $742,000, since Town residents will be required
to bear approximately 40% of the combined debt for the
two districts (Ja 205). See also, Commissioner’s decision
(Ja 75).
Further, under merger, Morris Township taxpayers will
be saved taxes for future capital costs for Morris Town
ship children (Ja 75, 313, 314). Under a separate
K-12 arrangement, it will have to provide addi
tional student spaces at a cost of $21 million dollars (Ja
284; T125S to 1268). Under a merged system, approxi
mately 40% of this capital cost will be paid by Morris
town residents (Ja 75, 314; T712, 126S, 1269, 1270). In
75
contrast, Morristown’s total K-12 enrollment will increase
only slightly through 19S0 (Ja 249, 313). In effect, under
a merged district, Morristown residents will be paying
40% of all capital costs required to house the rapidly in
creasing number of Township students (Ja 75, 314).
Additionally, cost savings to the merged district have
been estimated by tire Lay Advisory Committee to be 12%
over the operation of separate districts. Such a saving
results from efficiencies of staff and facilities of a merged
district (Ja 314—p. 3, 189).
Stated otherwise, merger could produce a better edu
cational program for the same amount of money (T756).
This is seen by reference to the propensities of the stu
dent bodies of each district toward different curricula.
For example, because of limited student interest, a sepa
rate Morris Township high school would offer only two
of the seven vocational programs currently offered by
the Town high school. Conversely, Morristown High
School would probably be forced to curtail many of its
advanced placement and honors programs due to insuf
ficient number of qualified students. Neither school, there
fore, would be able to meet the needs of all its students
as well as the current single high school does (Ja 303).
See also Commissioner’s decision (Ja 82, 83).
3. Trends tow ards w ith draw al from the school com
m unity b y m em bers of the m ajority . 30
Particularly troublesome to this Court in Booker was
the possibility that members of the majority would with
draw from the school community, thereby causing greater
problems than previously existed. This problem is pre
sented here too. The Commissioner below found that if
Morris Township severs its eductional ties with Morris
town, the trend presently existing wherein potential white
home buyers reject Morristown due to the increasing blade 40
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76
population, will be exacerbated (Ja 79). This factor, com
bined with the realization that the price of Township
homes tends to be economically prohibitive to black buyers
(Ja 77), alerts us to the dire consequences potentially in
store for Morristown. The record below repeatedly records
the “panic” and “disasterous consequences” which may be
expected. (See also Ja 273; T263, 264, 265, 434, 1001).
Note also the panic reaction that has taken place in other
New Jersey sections: In the Weequahie district of Newark,
the Negro high school population went from 19% to 82 Jo
in a seven year period (Ja 248, 251, 271). In Plainfield
Negro enrollment increased from 3S% in 1963 to almost
60% in 1968 (Ja 251).
4. Reasonableness of com m unity plan.
A plan to achieve racial balance within the Morristown
area community can be achieved with extraordinary ease,
m a very short time, and be entirely consistent with sound
educational values and procedures. Statutory guidelines
by way of the regionalization statute already exist. See
N.J.S. 18A:13-34.
Complete K-12 merger could be accomplished without
delay—in a matter of a few months (T433, 444).
A merged district would comport with sound educational
values and procedures far more than would two separate
districts. The combination of the Morristown and Morris
Township school districts would produce a district of op
timum size (Ja 299, 300, 301; T722, 723, 724), whereas two
separate districts would not. The merged district would
offer the middle class milieu in which students perform
best, (Commissioner’s decision Ja 80); Racial Isolation in
the Public Schools at Ja 198—p. 3S); Coleman, Equality
ity of Educational Opportunity (1966). Further, the Mor-
ristoAvn area would best be served by a single high school:
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“By adopting a single center, all students will a t
tend the same school and enjoy the same program.
Racial and socio-economic balance will be achieved.
The school will be large enough to reap the bene
fits of size, which can result in better education for
all students for the funds invested. Finally, the
school will be able to offer its students the widest
diversity in program and student body.” (Ja 307)
Finally, the educational range of programs offered would
be far greater in a merged district, and unneessary doub
ling of administrative details would be avoided.
A summary of the advantages of total merger is con
tained in the Engelhardt report as follows:
“1. Establishment of racial balance which represents
the racial composition of the community. Bi-racial
experience will be available in the early grades
where it has important benefits for both white and
Negro students in terms of interracial attitudes and
preferences and at the later years where it appears
to have important benefits to members of minority
groups.
2. Representation of the socio-economic spectrum of
Hie community at all levels of schooling.
3. Equal educational opportunity available to all stu
dents without regard to background, race, or resi
dence.
4. Avoidance of invidious comparison between the Mor
ristown High School and a Towsnhip school, a com
parison ultimately based on race.
5. Avoidance of the deterioration and pejoration of
Morristown High School because of racial concen
tration, loss of reputation, curtailment of program,
and ultimate reduction in per-pupil expenditure.
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20
6. Development of a district which represents a na
tural community and avoidance of the creation and
perpetuation of racial imbalance.
7. Development of a climate of education which repre-
sents the society in which the students live.
8. Development of a school district and a high school
large enough to allow the maximum return on the
funds invested and to permit a program broad
enough to meet a wide range of pupil needs.
9. Development of an educational pattern related to
and serving the single Morristown-Township com
munity.
10. Reduction in the number of school districts in the
area from four to three.
11. Development of greater vertical coordination of pro
gram and greater flexibility in facilities, curriculum,
and organization.” (Ja 314, 315)
Only by reference to the Morristown area community
can all the advantages accruing from the neighborhood
school policy be preserved, sound educational values and
procedures be enhanced, and constitutional duties to elim
inate or reduce racial imbalance in the public 'schools of
New Jersey be achieved. The mandate of this Court in
Booker can only be fulfilled by alleviating the racial im-
balance presently existing, and found to be worsening,
in the Morristown area community. School district bound
ary lines cannot be allowed to defeat the strong state
policy and constitutional duty to alleviate racial imbalance.
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79
II. The Designation of Morristown High School
Cannot be Y/ithdr&wn Without Department of Edu
cation Approval.
A . T h e F a c ts a n d th e Issue
The sending-receiving situation between Morris Town
ship and Morristown has been described above. For pres
ent purposes it is sufficient to recall that there has been
a long standing relationship, that it was limited for two
years in the fifties, then resumed in full, and then' rein
forced effective September, 1962, for a 10 year period by
a contract occasioned by an addition to Morristown High
School. The 10 year period ends with the 10th grade class
entering September, 1971.
10
The issue is what happens with respect to the entering
10th grade class of September, 1972, and subsequent en
tering 10th grade classes. When the contract falls away 20
how may the designation be ended—by Morris Township
unilaterally, by agreement, or only with the Commission
er’s approval?*
B. T h e S en d in g -R ece iv in g S ta tu te s
The key statutes are N.J.S. 18A:3S-1.1 and 13. Section
11 tells when and how the designation is made.
* The contract itself requires all three:
“ And it is further agreed by and between the parties here
to that after the ten year term of this agreement, then
both Morristown and the township are free to make what
ever arrangements they may mutually agree upon, subject
to the provisions of law and the approval of the Commis
sioner of Education of the State of New Jersey.” (Ja 160
—p. 2, 3) We do not urge this is necessarily controlling,
since the statute authorizing 10 years contracts gives no au
thority to reach beyond 10 years by contract. N.J.S. 18A:
38-20. It is, however, an interesting reflection of the atti
tude of the parties, and perhaps of their understanding of
the continuance of designation.
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8 0
“The board of education of every school district
which lacks high school facilities within the district
and has not designated a high school or high schools
outside of the district for its high school pupils to
attend shall designate a high school or high schools
of this state for the attendance of such pupils.”
N.J.S. 18A :38-ll.
10
Section 13 deals with change or withdrawal of designa
tion.* It reads as follows:
“No such designation of a high school or high
schools and no such allocation of apportionment of
pupils thereto, heretofore or hereafter made pursu
ant to law shall be changed or withdrawn, nor shall
a district having such a designated high school re
fuse to continue to receive high school pupils from
20 such sending district except for good and sufficient
reason upon application made to and approved by
the commissioner, who shall make equitable deter
minations upon any such applications.” (Emphasis
supplied) N.J.S. 18A:38-13.
The 10 year contract statute is N.J.S. 18A :38-20. It ap
plies where a district is “now or hereafter furnishing”
education to a sending district and finds it necessary to
finance additional facilities for them. N.J.S. 18A:38-21
30 Provides for termination of such contracts, upon approval
by the Commissioner, upon a showing by a sending dis
trict that the receiving district is not providing a suit
able educational program or will not be seriously affected
by withdrawal. These conditions are rather specific and
stringent, in contrast to the good and sufficient test of
* 18A :38-12 is not pertinent here. It deals with allocation and
apportionment of pupils where two or more receiving high schools
are designated.
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N.J.S. 1SA:38-13, with the result that a 10 year contract
provides substantial protection for its named term.*
We invite this Court to examine these statutes on their
face, particularly N.J.S. 18A:3S-13 and the words empha
sized therein, above. We submit section 13 governs this
case. We submit, further, that the only reason the Com
missioner ruled otherwise is that he is a victim of De
partment of Education interpretative folklore which may
have been wrong under the old statutes, and which assur
edly is wrong under the statutes as they stand today. If
the statutes today were ambiguous the Department’s past
interpretations of them would be of assistance. Even then,
the revisions have been substantial so as to undo rather
than incorporate old interpretations. We submit, how
ever, that the statutes are plain on their face.
C. T h e C o m m issio n er’s E rro rs
1. D epartm en t Position on “ W ith draw al”
The Commissioner presides in a setting where the ad
ministrative personnel have assumed for years that they
have no power to stop a withdrawal. As an example of
this, Assistant Commissioner of Education Groetzinger
wrote to Morris Township in or about January 1962** and
advised that:
* The Commissioner suggests that the need for this protection
indicates there was no protection before N.J.S. 18A:38-20 & 21
were enacted (Ja 97, 98). It doesn’t follow. The difference is
one of degree. N.J.S. 18A:38-13 and its predecessor provide a de
gree of protection but leave the Commissioner substantial lati
tude to allow withdrawal on proper findings. The 10 year con
tract provides a contractually binding overlay which reinforces
the designation relationship and is terminable only in the two
narrow events named.
** This was after the 10 year contract, dated March 15, 1961,
was made (Ja 160).
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8 2
“The statute controlling sending-receiving relation
ships (R.S. 18:14-7) [now N.J.S. 18A:38-11 to 14]
applies only to districts which lack high school facili
ties within their own boundaries. Once a district
has established its own high school facilities, there
is no statute or rule under which it can be required
to continue to send its pupils to another district . . .
[except for 10 year contract]” (Ja 154)
Commissioner Raubinger wrote to Morris Township with
the same type of advice on dime 23, 1966 (Ja 148).
In addition to these letters the Department decided a
case in 1962 which contained language conforming with
the interpretation given in the Groetzinger letter. This was
In the Matter of the Termination or Modification of the
Sending-Receiving Relationship between the Board of Edu
cation of Chatham Township and Chatham Borough, 1961-
62 S.L.D. 144 (1962). There Chatham Township, the send
ing district, petitioned to have the Commissioner shorten
a 10 year contract with Chatham Borough, and the Com
missioner decided he could only “terminate” such a con
tract, not modify it as requested. The petitioner pointed
out also that, in addition to the 10 year contract, there
was a pre-existing and continuing sending-receiving rela
tionship which the contract had merely reinforced. Peti
tioner evidently contended that this relationship, despite
the 10 year agreement, triggered the provisions of R.S.
18:14-7, now N.J.S. 18A:38-13, conferring power in the
Commissioner to approve withdrawal. The Commissioner
properly rejected this effort to convert section 13 from
shield to sword. However, in doing so he added the dic
tum, conforming with the Groetzinger letter, that:
“ [a]bsent such an agreement, the sending district
could withdraw once its facilities are ready, without
any necessity for an application and approval by
the Commissioner.” Chatham, supra, pp. 146, 147
83
The Chatham case is relied upon in the Commissioner’s
opinion in the present case for the proposition contained
in that dictum. That dictum of Chatham rests on no deci
sion, by the Commissioner or otherwise, and is squarely
contrary to the statute, N.J.S. 18A:38-13.
The statute says that the Commissioner’s approval is
necessary for withdrawal, and that good and sufficient rea-
son must be shown. To say that approval is noit necessary
once the sending district has its own facilities, is irrele
vant and nonsensical. It is irrelevant because Morris Town
ship does not have its own facilities. I t is nonsensical be
cause tire question of “withdrawal” can only arise when a
sending district proposes to provide its own facilities and
educate its children in its own district. To say that N.J.S.
18A:38-13 does not apply in that instance is to say it does
not cover “withdrawal”—contrary to the explicit terms of
the statute. 20
N.J.S. 18A:38-13 treats two kinds of actions by a send
ing district: (1) change of designation and (2) withdrawal
of designation. “Change” of designation clearly refers
to switching the sending district’s pupils from one receiv
ing district to another receiving district. This leaves only
one other type of action by way of ending a designation
relationship, and that is taking the students back into the
resident sending district and educating them there. This is
“withdrawal” of a designation, rather than a change. If
the words may overlap in coverage, then “withdraw” might 30
be taken also to include “change,” but it clearly must cover
at least the taking back of students into the resident dis
trict.*
* In addition to being the plain meaning, this is the meaning
of “ withdraw” by definition from the context of other, related
statutes. E.g. N.J.S. 18A:38-20: “ . . . it will not withdraw its
pupils and provide school facilities for them in its own or another
district . . .” ; N.J.S. 18A:38-21 to the same effect, See also N.J.S.
j 8A:3S-23. It is noteworthy that in the earlier version of N.J.S.
18A:38-20 and 21 (R.S. 18:14-7.3 & 7.4) “ withdraw” was used 40
to mean only taking back to the resident district, whereas it is
used in sections 20 and 21 more broadly to include a change as
well as a taking back into the resident district.
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84
N.J.S. 18A:38-13 also treats one kind of action by a re
ceiving district, having the effect of ending a designation
relationship. This is refusal to continue to receive, and
this is likewise subject to the Commissioner’s approval.*
One can understand when the Department got into its
mistaken interpretation by tracing the development of sec
tion 13. In the 1937 revision it appeared as the second
sentence of R.S. 18:14-7, and dealt only with the question
of “change” of designation. I t was not until 1956 that
the two other means of termination, withdrawal and re
fusal to receive, were added. The Department never came
to grips with the 1956 broadening. One can find a possible
excuse for this in the fact that the 1956 version limited
the “good and sufficient” test to “such change,”** but the
1968 revision of die Education title surely eliminated all
question. The statute now clearly applies the “good and
sufficient” test to withdrawal as well as change, and ap
plies the “equitable determinations” requirement as well.
The Commissioner refers to two other Department deci
sions to support his interpretation (Ja 94-96). They don’t
do so. In the Matter of the Withdrawal of Students of the
Borough of Hawthorne from Central High School, Pater-
* The Commissioner exhibits his confusion about the meaning
of “ withdraw” in the C h a t h a m ease, s u p r a , where he tries to
assign the word “ withdrawn” to this refusal to receive by the
receiving district.
“ Under the statute, the Commissioner may consider a re
quest by a sending district for a ‘change’ of high school
designation or by a receiving district that the pupils it
is required to receive be ‘withdrawn.’ ” Id. 146
It reflects a clear misreading of the Legislature’s words.
** No designation shall be . . . changed or withdrawn . . . un
less good and sufficient reason exists for s u c h c h a n g e and un
less . . .” (Emphasis supplied) (R.S. 18:14-7, as amended L.
1956, c. 68.
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85
son, New Jersey, 1938 S.L.D. 665 (1933), was decided at
a time when the sending-receiving statute expressly cov
ered only changes from one receiving district to another.
The first statute on sending-receiving was enacted in 1929,
L. 1929, c. 281. As amended in 1933, L. 1933, c. 301, it
read:
“. . . said [sending] district may not change the
designation and name the school or schools of an
other district for said children to attend unless good
and sufficient reasons exists . . . .” (Emphasis sup
plied) (See 1938 S.L.D. 66S)
The 1937 revision and subsequent statutes dropped this
limitation on the type of change which prevailed in 1933.*
In Board of Education of the Town of Newton v. Boards
of Ediication of the High Point Regional High School Dis
trict, etc., 1966 S.L.D. 144, the receiving district sought to
hold the sender to the relationship, and the Commissioner
decided that his endorsement of the referendum to create
the sending district high school constituted approval of
withdrawal. The Commissioner went on:
“However, even if it be argued that petitioner had
no opportunity to be heard in such a determination,
the fact remains that a valid sending-receiving rela
tionship can exist only where a district ‘lacks or
shall lack high school facilities within the district
for the children thereof to attend.’ ” Id. at 146.
* At that, an analysis of the case shows the Commissioner in
fact did exercise power with respect to the withdrawal—he first
directed the continuance of the sending-receiving relationship
with respect to the 11th and 12th grade classes from Hawthorne,
even after Hawthorne provided its own facilities, and then s\ibse-
quentlv “ granted” the “ request” of Hawthorne to withdraw the
11th grade. Thus, while using the ‘no power’ language the
Commissioner clearly was exercising power with respect to with
drawal
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8 6
The present case presents the preliminary question not
presented in Newton—whether the proposed facility and
a concurrent withdrawal shall he permitted in the first
instance. This raises the “lack of facilities” question,
which we treat in the following section.
The net of this is clear. While the Commissioner may
not have had the explicit power to control withdrawal in
the past, he acquired that power with little doubt in 1956,
and without doubt in 1968. Even accepting as accurate
earlier statements disclaiming tire power, they do not un
dercut the meaning of a statute which has been revised to
confer the power explicitly.
2. “Lack” of Facilities and N.J.S. 18A:45-1
In his opinion below the Commissioner turns from “with
drawal” and the wording of N.J.S. 18A:38-13 as “not the
crucial language,” to N.J.S. 18A:38-11 (Ja 91). This sec
tion says
“. . . every school district which lacks high school
facilities within the district . . . shall designate a
high school . . . .”
He emphasizes the words “which lacks high school facili
ties,” and quotes from his Chatham case to the effect that
“ ‘Once a district provides its own high school
facilities, the statute . . . is in applicable as to it.’ ”
(Ja 93)
N.J.S. 18A:38-11 sets up the “lacks high school facili
ties” standard as the condition requiring designation in the
first place. That designation, once made, is nowhere said
to be terminable except as provided in section 13. The
Commissioner reads section 11 as a self-executing termina
tion feature, treating lack of facilities as a continuing
condition of the designation. This is contrary to the lan
guage of and contrary to the purpose of 13. If this were
87
correct, the restraints on withdrawal in section 13 could
have no meaning.
Even if the Commissioner’s interpretation of N.J.S.
1SA :38-ll were correct, however, it would be no justifica
tion for his dismissal of the petition in this case. Morris
township does lack high school facilities in its own district.
Even if that were a continuing condition of the vitality
of the designation, it is still met.*
This ease, then presents an issue not presented in
Chatham and Newton supra: There, the sending district
had either completed its facilities or was well along in that
direction (Ja 96). The threshold question whether the
new facility should be permitted in the first instance was
not before the Commissioner in either case.
Here, this Court may wish to examine N.J.S. 18A:45-1.
The Commissioner seems to assume the Department has
nothing to say about a district providing its own facilities.
We invite the Court to contrast this attitude with the
terms of that statute.
“The Board of Education of any school district may,
with the consent of the State Board, establish and
organize secondary schools including junior liigh
schools which shall be subject to rales prescribed by
the State Board and the State Board may withhold
or withdraw its approval of any such school when
ever in its opinion the academic work, location or
enrollment and per capita cost of maintenance there-
* The Commissioner presumably would contend that while Mor
ris Township still does lack facilities it w i l l v.ot la c k them when
the contract expires if it builds now, and therefore could termi
nate the designation effective at that time. If so, he should be
troubled by the fact that prior to the 19GS revision R.S. lS:14-7
applied to a district “ which lacks or shall lac-k high school facili
ties.” Under N.J.S. 1S :3S-11, of 1968, the “ shall lack” provision
was dropped.
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ss
of shall not warrant its establishment or continu
ance.” N.J.S. 18A :45-l.
This is a sweeping provision. Morris Township, under
this statute, must affirmatively show that (a) the academic
curriculum, given the implications of -withdrawal from
Morristown, (b) the location, including the location in rela
tion to Morris Township and to the total community, and
(c) the enrollment, including the components as well as
the total number, all warrant the establishment of a sepa
rate high school. Moreover, this statute requires a full
showing on cost. At the hearing on withdrawal, none of
these factors were affirmatively treated by Morris Town
ship, and, despite substantial briefing of the point by Ap
pellants, the Commissioner’s opinion below does not men
tion the statute.
We invite attention to this statute as an independent
source of Department power in Point III. We mention it
here because it meshes with the assumption of N..T.S. 18A:
38-13 that the Department has something to say about
withdrawal and the building of one’s own facilities.
We submit, therefore, that N’.J.S. 1SA:38-13 must be
read to require the Department of Education to disapprove
a withdrawal by Morris Township, unless good and suffi
cient reason can be shown therefore.*
* We have dealt in this point only with the statutory dimension
of withdrawal. There is also a constitutional dimension, as sug
gested by the authorities discussed in Point T. It has a bearing
on the interpretation of section 13. in the interest of achieving a
constitutional result, as well as an independent limiting effect on
withdrawal actions. The same considerations which dictate merger
should prohibit withdrawal on the facts of this ease.
( F o o tn o t e c o n t in u e d On foIIotLnng p a g e )
89
III. The department has other unperceived powers
to deal with this situation.
The Commissioner has found that the State Department
of Education is powerless to act in this case under exist
ing statutes. Appellants contend that the Commissioner
and State Board have substantial powers under the sev
eral statutes.
A. N .J.S. 1 8 A :6 -9 : D eterm ining C ontroversies and D isp utes
N.J.S. 18A:6-9 provides:
“The Commissioner shall have jurisdiction to hear
and determine, without cost to the parties, all con
troversies and disputes arising under the school
laws . . . or under the rules of the state board or
the commissioner.”
( F o o t n o t e c o n t i n u e d f r o m p r e c e d i n g p a g e )
In addition, approval of a new Morris Township High School
by the Department pursuant to N.J.S. 18A:45-1 would constitute
state action resulting in racial imbalance and inequality of edu
cational opportunity—a plainly impermissible state act. This in
tervening state action, utilization of the State’s machinery to ef
fectuate racial separation, is the only means by which Morris
Township may build its own high school. Therefore, since the
State Board has control of withdrawal, any act creating racial
separation and inequality of educational opportunity is a state
act, and hence constitutionally prohibited. T u r n e r v. W a r r e n
C o u n t y B o a r d o f E d u c . , 313 F. Supp. 3S0 (E.D.N.C. 1970);
B u r le s o n v. C o u n t y B o a r d o f E l e c t i o n C o m m i s s i o n e r s o f J e f f e r s o n
C o u n t y , s u p r a ; cf. S h e l l e y v. K r a c m e r , 334 U.S. 1 (1948).
Further, any action of the Morris Township Board of Educa
tion in withdrawing is itself constitutionally invalid because the
Board members are well aware that the consequences of their
withdrawal will be an increase of racial imbalance in Morristown
High School. See K e y e s v. S c h o o l D i s t . N o . 1, D e n v e r . 303 F.
Supp. 279 (D. Colo. 1969); 313 F. Supp. 61 iD. Colo. 1970). Cf.
H u n t e r v. E r i c k s o n , 393 U.S. 385 (1969) ; R e i t m a n v. M u l k e y ,
387 U.S. 369 (1967); B r a d l e y v. M i l l i k e n , 443 F. 2d S97 (6th Cir.
1970), and eases cited therein.
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90
Under this statute the Commissioner has the power to set
aside the determination of a local board if that deter
mination was ‘arbitrary or capricious, or the result of
bias’. In re Masiello, 25 N. J. 590, G05, supra; Guns-
berg v. Board, of Education of TeanecJc, Bergen County,
1961-62 S.L.D. 163, 166.
Whether viewed as a decision-making process or with
respect to substantive effect, the determination to sepa
rate is an irrational phenomenon, an arbitrary and un
reasonable action.
1. A s a decision-making process, the determination to
w ith draw and refusal to m erge were unjustifiable.
Prior to the January, 1968 referendum six of eight
Township board members favored merger with Morris
town (Ja 85). The statutory regionalization process was
available to them—the only step consistent with their con
victions. But they abdicated in favor of a public opinion
poll by referendum, and permitted the administrative staff
to mail pamphlets to the voters omitting crucial financial
information militating toward merger (Ja 75). The ref
erendum was advertised as “non-binding” yet the board
members pledged to follow the results. The Commission
er has expressly held the “non-binding” referendum and
the abdication of board discretion to be unlawful (Ja 113).
The Township Board advertised its moral commitment
to abide by the unlawful referendum. That moral com
mitment has turned into a stubborn refusal to consider
any other alternative. The Township Board, by consid
ering itself bound, has avoided its own responsibility to
determine the proper alternative and deprived its own cit
izenry of any leadership in this matter. This vacuum has
continued.
The Township Board did not, in January of 1968, and
does not now have before it any study by any expert
91
demonstrating that there were any advantages to sepa
ration over merger. To the contrary, the studies made
conclude that merger of the two school systems is the
preferable solution to the educational needs of the Town
ship, as well as the Town (Ja 187, 189, 191, 310 to 312).
At no point in the proceedings below was the Township
able to articulate a single educational, logistic, administra-
tive or other practical reason why separate high schools
and separate grade schools were preferable. No expert
was produced by the Township to dispute the testimony
adduced by the appellants regarding the benefits of a com
bined district and shared facilities. The President of the
Township Board admitted that he knew of no educational
disadvantages necessarily arising out of a merger (T1433).
In March of 1969 the Commissioner denied the Township’s
motion for judgment on the pleadings and urgently re
quested all four Boards involved to study merger alterna- 20
tives with the aid of the County Superintendent (Ja 63).
The Township refused to enter into those discussions.
On November 30, 1970, the Commissioner released the de
cision upon which this appeal is based. No longer were
the allegations of harm to Morristown merely claims and
statements of interested parties and their witnesses. The
Commissioner had found expressly that the petitioners and
the Morristown Board were correct in virtually every al
legation asserted in the petition and cross petition. Yet
the Township Board disregarded the Commissioner’s en- 30
tire set of findings and immediately (December 2, 1970)
authorized the holding of a bond referendum on March
4, 1971.
From beginning to end. the Morris Township position
has been characterized by rigid adherence to the results of
an illegal referendum, by singleminded ignoring of ra
tional alternatives, and by stubborn refusal to consider the
harm done to others.
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In the past the Commissioner has not hesitated in an
appropriate case to set aside actions of local boards be
cause of improprieties in the decision making process.
Cullum v. North Bergen Board of Education, 1952-53 S.L.
D. 62, aff’d 27 N. J. Super. 243 (App. Div. 1953), aff’d 15
N. J. 285 (1954), and in Thomas v. Morris Township
Board of Education, 1962 S.L.D. 106, aff’d S9 N. J. Super.
327 (App. Div. 1965), aff’d 46 N. J. 581 (1966).
In Cullum, at no time did the majority of the Board
consider the needs of the local community, or seek to as
certain and evaluate the identities, qualifications, and ex
perience of the available candidates (for superintendent),
or deliberate on the course best calculated to serve the
local school system (15 N. J. at 293). The Court stated that
the members of the Board of Education hold positions of
public trust and must at all times faithfully discharge their
functions with the public interest as their polestar (15
N. J. at 292).
Boards of Education may not act in an arbitrary way.
In Thomas, five Board members made a decision to ex
tend the superintendent’s contract without notice, proper
discussion or opportunity for adequate consideration by
other members of the Board and the public in general.
The Commissioner stated that it was clearly established in
Cullum that actions of a Board of Education which might
otherwise be legal may be set aside if there were such
evidences of bad faith or “a lack of discretion and an
arbitrary determination” (15 N. J. at 293) as would war
rant such action. This Court affirmed the Commissioner’s
holding (46 N. J. 581).
The irrationality that has pervaded the decision-making
process by the Township Board is sufficient ground for
reversal by the Commissioner under N.J.S. 18A :6-9.
But the Commissioner just wrung his hands.
“The posture taken by the Township Board in con
ducting a non-binding referendum amounts to a de
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cision not to merge thereby rendering as pointless
any determination by the Commissioner ordering the
Board to restudy the matter.” (Ja 116).
2. The decision to w ithdraw and refusal to m erge will
result in such great harm to M orristown that it should
be set aside as unreasonable.
Morris Township has adhered to the view that its duty
runs solely to its own citizens and students. The position
of the Township was well summed up in the brief filed in
opposition to appellants’ request for certification (at page
25):
“When in the course of human events it becomes
necessary for a school district to dissolve the emer
gent bonds which connect it with another in order
to prevent injurious educational consequences flow
ing from overcrowded facilities, then the truth
should be self-evident that the Morris Township
School Board must concern itself primarily with
the housing of its pupils rather than the housing
patterns of an adjacent community.”
If the aforesaid language is a clarion reminder
of an historical declaration for independence, it is
purely intentional.”
In short, the Township position is that, being a free and
independent school district, it may act in any way it
chooses without regard to the harm done to the remain
der of the community.
Appellants urge that the Township’s primordial view is
not the law and makes a mockery of the concept of home
rule. A man’s home may be his castle, but a school dis
trict is not a fiefdom.
A board of education is a subdivision of the State.
Hertz Waslimobile System v. Village of South Orange,
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41 N. J. Super. 110 (Law Div. 1956), aff’d 25 N. J. 207
(1957); Bur gin v. Brown, 37 N. J. 189, (1962); Grogan
v. DeSapio, 11 N. J. 30S (1953); Cullum v. North Bergen
Board of Education, supra. When a municipality exor
cises its police power, for example, “ [i]t is requisite that
the means employed in its exercise have a rational rela
tion to [a legitimate] end and be altogether free from ar
bitrariness. ” N. J. Good Humor v. Board of Commis
sioners of Borough of Bradley Beach, 124 1ST. J. L. 162, 168
(E. & A. 1940). This Court held in Grogan v. DeSapio, su
pra that the acts of three Commissioners who met in ad
vance of the regular organization meeting and reallocated
local functions, giving only skeletal powers to the absent
Commissioners, were arbitary and an abuse of discretion.
This Court stated at page 321:
“. . . we have held that arbitrary use of power
contravenes fundamental law and is not within the
legislative province; . . . and where there has been
an abuse of discretion, the action may be vacated
and fulfillment directed of what the law deems an
imperative obligation.”
A board’s responsibility is greater than merely to the
voters in its own district who elected it. In Bur gin v.
Brown, 37 N. J. 189 (1962), which involved a district
created from a borough and a township, newly elected
board members from the borough, who were pledged to
attempt to deconsolidate the district, refused to build a
new high school. The building of the new school was au
thorized by the previous Board and the voters and was
to be located in the township. On appeal to compel the
building of the school, the Commissioner determined that
the Board’s plan to renovate the existing school was not
economical and did not meet statutory standards. The
Court upheld the Commissioner (37 N. J. at 199):
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“The Board is an instrumentality of the State it
self . . . obligated to meet tire eductional needs of
the children of the whole district.”
Although the present case, unlike Durgin, involves
more than one district, the logic of Din gin applies equally
to this situation—a board of education as a subdivision
of the state educational system, has a duty to the entire
public, not just to the voters of its own district. The duty
of a board to consider the effects of its action on a neigh
boring municipality is especially great in a situation such
as this, where the two municipalities form one community.
During the past decade there have been many instances
of judicial disregard of municipal boundary lines. The
old concept that each municipality was a separate enclave,
separate and totally unrelated to its neighbors, no long
er pertains. More and more, the courts have acknowl
edged the interrelation and interdependence of adjoining
municipalities. These concepts have found expression in
context that are admittedly different from the matter at
bar, but are sufficiently analogous to warrant considera
tion.
Many of these decisions have involved zoning matters
where the integrity of a municipality’s zoning ordinance
had been thought to be inviolable from attack from out
side its boundaries. It is not so any longer. In Duff con
Concrete Products, Inc. v. Borough of Cresskill, 1 N. J.
509 (1949) this Court recognized the need for a municipal
ity to look beyond its own borders for zoning purposes and
recognize legitimate regional needs for other cases dealing
with the right and duty of the municipality to provide co
operatively for the needs of neighboring communities as
well as its own.
“What may be the most appropriate use of any
particular property depends not only on all the
conditions, physical, economic and social, prevailing
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96
within the municipality and its needs, present and
reasonably prospective, but also on the nature of
the entire region in which the municipality is lo
cated and the use to which the land in that region
has been or may be put most advantageously. The
effective development of a region should not and
cannot be made to depend upon the adventitious lo
cation of municipal boundaries, often prescribed
decades or even centuries ago, and based in many
instances on considerations of geography, of com
merce, or of politics that are no longer significant
with respect to zoning. The direction of growth of
residential areas on the one hand and of industrial
concentration on the other refuses to be governed
by such artificial lines. Changes in methods of
transportation as well as in living conditions have
served only to accentuate the unreality in dealing
with zoning problems on the basis of territorial
limits of a municipality, improved highways and
new transportation facilities that made possible the
concentration of industry in places best suited to
its development to a degree not contemplated in
the earlier stages of zoning. The same forces make
practicable the presently existing and currently de
veloping suburban and rural sections given over
solely to residential purposes and local retail busi
ness services coextensive with the needs of the
community. The resulting advantages enure alike to
industry and residential properties and, at the
same time, advance the general welfare of the en
tire region.” (1 N. J. at 513).
See also, Andreivs v. Ocean Tivp. Board of Adjustment,
30 N. J. 245, 251 (1959); Kozesnik v. Township of Mont
gomery, 2-4 N. J. 154, 162-163 (1957); Kunzler v. Hoffman,
48 X. J. 277, 2S7 (1966).
97
Borough of Cresshill v. Borough of Dumont, 15
1ST. J. 238 (1954), involved the setting aside of a zoning
amendment passed by the Borough of Dumont. The de
fendant’s position was that the responsibility of a munici
pality for zoning is entirely internal and not subject to
external considerations. Chief Justice Vanderbilt, speak
ing for the Court, rejected this parochial view:
“Such a view might prevail where there are large
undeveloped areas at the borders of two contig
uous towns, but it cannot be tolerated where, as
here, the area is built up and one cannot tell when
one is passing from one Borough to another.
Knickerbocker Road and Massachusetts Avenue are
not Chinese walls separating Dumont from the ad
joining boroughs. At the very least Dumont owes
a duty to hear any residents and taxpayers of ad
joining municipalities who may be adversely af
fected by proposed zoning changes and to give as
much consideration to their rights as they would to
those of residents and taxpayers of Dumont. To
do less would be to make a fetish out of invisible
municipal boundary lines and a mockery of the
principles of zoning. There is no merit to the de
defendant’s contention.” (15 N. J. at 247).
The Township of Scotch Plains, residents of that
Township, and various residents of the Town of Westfield
brought suit against the Town of Westfield to set aside
an ordinance providing for the construction of a new
municipal garage in a residential zone adjoining the
Scotch Plains boundary line. Scotch Plains Township v.
Westfield, 83 N. J. Super. 323 (Law Div., 1964). The
court directed its inquiry to the question whether a rea
sonable alternative was arbitrarily rejected. The proofs
indicated that a study had been made of three other sites
for the garage, but each had been rejected for valid rea
sons. The court, in upholding the ordinance, placed great
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emphasis on the study of proposed alternatives made by
the Town. By way of analogy to the present situation, it
is readily apparent that no such comparable study of the
effects of withdrawal was made by Morris Township be
fore attempting to withdraw or refusing to merge.
In Washington Township v. Ridgcivood Village, 26 N. J.
578 (1958), the “reasonable alternative” test, relied upon
in the Scotch Plains case was enunciated. The Washing
ton Township case involved the action of the Village of
Ridgewood in erecting a water tank on land located par
tially in Ridgewood and partially in the adjacent Borough
of Ho-IIo-Kus. The Court concluded that Ridgewood
was empowered to construct such a structure in disre
gard of IIo-Ho-Kus’ zoning ordinance, but, and most im
portantly, it was required to act reasonably in the exer
cise of its authority. The Court found that Ridgewood
acted arbitrarily in selecting the location for its water
tank. See also Barone v. Township of Bridge-
water, 45 N. J. 224, 235 (1965), and Borough of Roselle
Park v. Township of Union, 113 N. J. Super. 87, 92
(Law Div. 1970).
To require a local board to consider the harm it may
do to an adjacent district will not result in the destruc
tion of home rule, but rather in some maturing of the
concept.
Even under the Commissioner’s restricted view of his
powers as reflected in In re Masiello, supra, the Commis
sioner could have acted in this case under N.J.S. 18A:
6-9. In the light of Booker v. Board of Education, Plain-
field, 45 N. J. 161 (1965), his failure to act was erroneous.
B. N.J.S. 13A :45-1 ; Consent to N ew Hifjh School Required
As noted in point I t above, the Commissioner didn’t
even consider the power in the Department to control
establishment of a new high school. N.J.S. 18A:45-1 pro
vides
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“The board of education of any school district may,
with the consent of the state board, establish and
organize secondary schools including junior high
schools which shall be subject to rules prescribed
by the state board and the state board may with
hold or withdraw its approval of any school when
ever, in its opinion, the academic work, location or
enrollment and per capita cost of maintenance
thereof shall not warrant its establishment or con
tinuance.” (Emphasis supplied).
Additionally, by way of clarification and amplification,
N.J.S. 18A:2-1 states:
“Whenever under any provision of this title the
validity of the action of any person, official, board
or body is made dependent upon the approval or
disapproval, consent or refusal to consent or de
termination of, or is to be exercised pursuant to
any rule to be made by, any other person, official,
board or body, the latter shall have power to ap
prove or disapprove, consent or refuse to consent,
to make such determination or promulgate any such
rule, notwithstanding that such power is not spe
cifically conferred thereby or by any other pro
vision of this title.”
The Township is seeking to establish a new secondary
school. The State Board has the express power to with
hold consent to the proposed facility. The appellants
have repeatedly demanded that the Commissioner and the
State Board refuse the necessary consent. Action under
N.J.S. 18A:45-1 preventing the establishment of the new
high school would be as effective a means of controlling
the situation as withholding consent to the severence of
the sending-receiving relationship under N.J.S. ISA:
38-13. Although the point had been briefed before him,
the Commissioner did not deal with N.J.S. 18A:45-1 in his
decision.
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C. N .J.S . 1 8 A :1 8 -2 ; A p p ro v a l o f P la n s a n d S p ecifica tio n s
In keeping with his apparent determination to construe
his powers, and the powers of the Department as nar
rowly as possible, the Commissioner has implicitly de
termined that N.J.S. 18A:18-2 only requires technical re
view of plans and specifications without regard to the
broader problems inherent in the project. That statute
provides in pertinent part:
“No contract for the erection of any building or
any part thereof by any board of education of any
school district shall be entered into until the plans
and specifications therefor have been submitted to,
and approved by, the state board and no change
in any such plans or specifications, so approved,
shall be made unless the same shall have been sub-
mited to, and approved by, the state board. A
copy of all plans and specifications, and all changes
therein, so approved, shall be filed forthwith with
the state board.”
By custom and pi'actice, the “specifications” referred to in
the statute are not building specifications but, rather, are
educational specifications. The Commissioner, in his de
cision below, nowhere answers appellants’ assertions that
he need not regard N.J.S. lSA:18-2 as limiting him to
a strictly technical review of the new high school plans.
The Commissioner, and the State Board, by approving
the plans and specifications for the new high school, with
out any regard for the overall consequences of the proj
ect, are adopting the same ostrich-like posture that has
characterized the behavior of Morris Township through
out this entire matter. The State’s action in approving
the plans and specifications is no less tainted than the
state court’s enforcement of racially motivated restrictive
covenants in Sliclley v. Kraemer, 334 U. S .1 (1947).
101
D. N.J.S. 1 3 A : 13-24; F o rm a tio n o f a R eg io n a l D is tr ic t
The Commissioner found that the January 11, 19G8 ref
erendum conducted by Morris Township was illegal (Ja
113). That referendum gave the voters two choices: 1)
regionalization with Morristown; and 2) withdrawal from
the Morristown High School coupled with the erection of
a separate high school. X.J.S. 18A:13-34 sets for the
statutory method of forming a regional district from two
or more existing districts:
1) both (or all) boards involved resolve to seek re
gionalization ;
2) the Commissioner or his agent in consultation
with the respective boards approves of the ad
visability of regionalization (but only after con
sultation, study and investigation)
3) the boards affected determine whether operating 20
costs are to be shared on a pupil population or
apportionment valuation basis;
4) detailed resolutions are framed setting forth the
proposal;
5) the question of regionalization is presented to
the voters at special school elections.
The Morristown Board has repeatedly expressed its de
sire to submit the regionalization question to the 30
voters. The Commissioner, by hearing this case, has cer
tainly conducted an adequate “consultation, study, and
investigation” and had clearly advised the foimation of
a regional district. The County Superintendent had also
conducted a separate inquiry. All of the financial data
and other information needed for framing appropriate res
olutions was available. All that remained in the way of
submitting this issue to the voters was the obduracy of
the Morris Township Board of Education. 40
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102
Appellants submit the Commissioner erred, at the min
imum, in failing to remand the matter to the Morris Town
ship Board of Education with clearcut instructions to
properly submit the regionalization question to the voters.
Such an order, also prohibiting the erection of a separate
high school, coupled with a retention of jurisdiction in
the event the voters or either board failed to move for
ward toward regionalization, would have enabled the vot
ers to address themselves to their responsibilities.
E. N .J.S. 18A :39-1 , 33-3 , 38-8, 39-9; exchan ging students,
a fea sib le last resort
Presently, virtually every Morris Township high school
student is bussed to the Morristown High School.
If the proposed Morris Township High School were built
adjacent to the existing Morris Township Junior High
School, as is planned, virtually every Morris Township
High School student will continue to be bussed to school.
At present most of the Morris Township grade school
students and virtually every junior high school student
is bussed to school. Many of these students pass through
Morristown on their way from home to school (Ja 232,
312).
Under N.J.S. 18A:38-3, non-residents may be ad
mitted to schools of other districts with the consent of
the receiving board of education (with or without tui
tion). N.J.S. 18A:39-1 permits making provisions for
transportation of pupils to a school in an adjoining dis
trict when such pupils attend such school by virtue of an
agreement made by the boards of education involved.
N.J.S. lSA:38-8 empowers the State Board to direct a
school district to receive pupils from another district
not having “sufficient accommodations”. N.J.S. ISA:
38-9 authorizes a child because of remoteness to attend
a public school in an adjoining district.
103
Thus, the statutory mechanism for ordering a “de facto”
regionalization by the exchanging and reallocation of
students on all levels is provided. The issue of “bussing ’
is not really involved since a reallocation of students
among existing schools of both districts would probably
x’esult in no more bussing of students than is now in ef
fect (Ja 313).
F. N .J.S . 1 8 A :4 -1 0 , 4 -15; 4 -1 6 ; 4 -2 2 ; 4 -2 3 ; 4 -2 4 : S w eep in g
A d m in is tra tiv e P o w ers
The Commissioner has determined that he has no power
whatever to act. Apart from the specific grants of power
discussed above, the Department of Education, under
N.J.S. 18A :4-10, has sweeping power to formulate plans
and make recommendations for the continuous and efficient
development of public education. N.J.S. 1SA:4-15 gives
the State Board broad powers to make rules for the con
duct of the public schools of the State and under N.J.S.
18A:4-16 has all powers “in addition to those specifically
provided by law requisite to the performance of its du
ties”. N.J.S. 18A:4-22, 23 and 24 define the powers of
the Commissioner as the executive officer of the State
Board who is charged with supervision of all the schools
of the State receiving support or aid and charged with the
responsibility for determining the efficiency of the schools
of the State.
Furthermore, as is pointed out above, N.J.S. 18A:2-1
expressly grants to the Department, the State Board and
the Commissioner, the general power to formulate rules
and make determinations incident or related to the grant
ing of any approval, disapproval, consent, or refusal to
consent “. . . notwithstanding that such power is not spe
cifically conferred thereby or by any other provision of
this title.”
The State Board has been directly petitioned in this
case to formulate rules and regulations to control the
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104
erection of new facilities where increased racial segrega
tion may thereby result, -and to prohibit the severance
of sending-receiving relationships where such severance in
creases racial segregation (Ja 9). These demands have
gone unheeded, unheard and ignored.
The Commissioner’s duty to supervise all schools of the
10 State receiving state aid, N.J.S. 18:4-23, and his duty to
determine the efficiency of all schools of the State (by di
rection or with the approval of the State Board), N.J.S.
18A.-4-24, have been specifically invoked by the Appellants
and totally disregarded in the decision below.
The Legislature in one section after another has granted
the Commissioner and the State Department of Educa
tion powers in broad terms to deal with the problems
of public education in this State. The Court, in Booker,
2q supra, in East Brunswick Board of Education v. The
Township of East Brunswick, supra, in Laba v. Nexvark
Board of Education, 23 N. J. 364 (1957), and in In re
Masiello, supra, has emphasized the breadth of the Com
missioner’s duties and powers. The State and federal
constitutions demand responsible state action.
Eight months intervened between the illegal January
11, 1968 referendum and the filing of the petition in this
case. During that time the Commissioner was deluged
with delegations, letters, telephone calls and telegrams
3Q concerning the problems now before this Court. Had the
Commissioner acted promptly then to investigate the sit
uation, had he acted affirmatively then, to guide the
Morris Township Board, had the State Board met the
Problem with the formulation of adequate rules and reg
ulations, had the Department made it clear that a sep
arate high school would not be approved in view of the
problems thus created, the two districts would prob
ably have formed a regional district and the necessary
additional facilities would have been well under wav
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105
The refusal of the State Department of Education to
exercise its broad powers is as much a cause of the
present situation as is the obduracy of the Morris Town
ship Board of Education.
G. N .J.S . 1 8 A :5 5 -2 ; w ith o ld in g S ta te a id
“The Commissioner shall, with the approval of the
state board, direct the state treasurer to withhold
funds payable by the state from any district which
fails to obey the law or the rules or directions of
the state board or the commissioner.”
“The County superintendent with the approval of
the commissioner may direct the custodian of
school moneys of a school district to withhold all
moneys received by him from the state treasurer
and then remaining in his hands to the credit of
the district, whenever the board of education of
the district, or any officer thereof, or the legal vot
ers of any school district, or any board or officer
of the municipality in which any such school dis
trict is situate, shall neglect or refuse to perform
any duty imposed upon such board, officer, or legal
voters by this title or by the rules of the state
board. The custodian shall withhold such moneys
until he shall receive notice from the county super
intendent that the board, officer, or legal voters
have performed such duty.”
Appellants respectfully submit that N.J.S. lSA:55-2
provides the Commissioner and the State Board with
adequate financial sanctions to enforce a directive to
vindicate constitutional rights.
106
CONCLUSION
Appellants respectfully request this Court to direct
iC-12 merger of Morristown and Morris Township
school districts, a.nd otherwise grant affirmative relief
in accordance with the foregoing arguments.
10 MacK e nzie & H arding,
Attorneys for Appellants, Beatrice M.
Jenhins, et al.,
32 Washington Street,
„ „ rT Morristown, New Jersey, 07960.
F rank F. H arding,
Of Counsel.
S tephen B. W iley,
Attorney for Appellant, Morristown
Board of Education,
250 Madison Avenue,
Morristown, New Jersey, 07960.
Donald M. Malehorn,
F rank F . H arding,
On the Brief.
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