Englewood Borough Board of Education v. Englewood City Board of Education v. Tenafly Board of Education Court Opinion

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[1086] 

257 N.J.Super. 413 

_14sBOARD OF EDUCATION OF "the 
. BOROUGH OF ENGLEWOOD 

CLIFFS, BERGEN COUNTY, Petition- 

er-Cross-Respondent/Appellant,  * - * 

Jn. 

BOARD OF EDUCATION OF the ‘CITY 
OF ENGLEWOOD, BERGEN COUN- 

.+TY, Respondent-Cross-Petition- 
,er/Cross-Appellant, I as BI in 

gi Vv. 

BOARD OF EDUCATION OF the BOR- 
OUGH OF .TENAFLY, BERGEN 

COUNTY, Cross-Respondent/Respon- 

dent, 

and 

A.8., by her guardian ad litem, R.S., 

Intervenor/Respondent. 

Superior Court of New Jersey, 

Appellate Division. : 

Argued Dec. 17, 1991. 

Decided June 15, 1992. 

Sending school district petitioned to 

sever sending-receiving relationship with 

receiving school district, and receiving 

school district cross-petitioned to enjoin 

third school district from accepting high 

school students from sending or receiving 

districts and to regionalize the three dis- 

tricts. The Commissioner of Education de- 

nied severance and refused to order region- 

alization or regionalization study, and all 

three districts appealed. The State Board 

of Education affirmed, and sending and 

receiving districts appealed. The Superior 

Court, Appellate Division, Long, J., held 

that: (1) Board could deny termination of 

sending-receiving relationship; (2) Board 

could deny establishment of dual sending- 

receiving relationship between the three 

districts; (3) Board could enjoin all public 

school boards from accepting students 

from sending or receiving districts; (4) 

  

  
  

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IF "the 
WOOD 

etition- 

#1 1 PS 

> ‘CITY 

COUN- 

etition- 

y 

med to 

p with 

ceiving 

enjoin 

g high 

ceiving 

ee dis- 

tion de- 

region- 

and all 

» Board 

ng and 

uperior 

]., held 

ition of 

Board 

ending- 

2 three 

l public 

tudents 

ts; (4) 

  

  

ENGLEWOUD CLirkd v. ENGLEWUUD N.J. Yih 
Cite as 608 A.2d 914 (NJ.Super.A.D. 1992) 

+ Board could deny regionalization; and (5) 

Board could order regionalization study. 

+ Affirmed. 

1. Administrative Law and Procedure 

&=499 

Agency's exercise of statutorily del- 

egated responsibility is accorded even 

stronger presumption of validity where 

agency |414has been given discretion to de- 

termine specialized procedures for its 

tasks. 

2. Administrative Law and Procedure 

&=496 : 

. Although appellate court does not ac- 

cord same deference to agency determina- 

tion if issue is purely one of law, agency’s 

interpretation will be accorded considerable 
weight on appeal if agency is responsible 

for enforcing statute. 

3. Administrative Law and Procedure 
€=499, 763, 784 

Agency's factual determinations are 

presumptively correct and will not be upset 

absent showing that they are arbitrary, 

capricious or unreasonable; such determi- 

nations must be accepted if supported by 

substantial credible evidence. 

4. Witnesses &=205 

Statement by president of board of 

education contained in minutes of litigation 

strategy session with board’s attorney that 

lawsuit was unwinnable since it involved 

“racial issue” was privileged attorney- 

client communication, and thus opposing 

board of education was not entitled to sup- 

plement administrative record with state- 
ment in order to show that school board’s 

attempt to sever sending-receiving relation- 

ship with opposing school board was racial- 

ly motivated, despite contention that min- 

utes of meeting were already public, where 

opposing school board did not claim that 

minutes had been voluntarily disclosed. 

N.J.S.A. 10:4-12, 10:4-13. 

5. Administrative Law and Procedure 

676 : 

Schools 4=13(18) 

Board of education that opposed neigh- 

boring board of education’s petition to sev- 

er sending receiving relationship was not 

entitled to supplement record with state- 

ment by president of neighboring board of 

education that lawsuit resulting from peti- 

tion was unwinnable since it involved “ra- 

cial issue” in order to establish that neigh- 

boring board of education's petition for 

severance was racially motivated; state- 

ment was no more > | j1isadmission of racial 

motivation than it was comment on public 

perception of case. R. 2:5-5(b). 

6. Schools &=154(1) 

“Sending-receiving relationship” be- 

tween school district that lacks high school 
facilities and designated district that pro- 

vides education for its high school age pu-- 

pils is contract between the two districts 

for educational servites to be provided in 

exchange for fixed tuition payment; how- 

ever, termination of relationship is subject 
not only to desires of parties, but also to 

approval of Commissioner of Education. 

N.J.S.A. 18A:38-11, 18A:38-13. 
See publication Words and Phrases 

for other judicial constructions and 
definitions. 

7. Schools &=2154(1) 

Commissioner of Education is required 

to deny petition for termination of sending- 

receiving relationship between school dis- 

tricts if any substantial negative impact 

exists at all; once substantial negative im- 

pact has been found, Commissioner is not 

free to weigh overall positive and negative 

impacts or to determine that substantial 

negative impact is “outweighed” by any 

other positive impact. N.J.S.A. 18A:38-13. 

8. Schools €=154(1) 

State Board of Education could consid- 

er history of relationship between school 

districts in determining whether negative 

impact would result from severance of 

sending-receiving relationship; what oc- 

curred prior to actual petition for sever- 

ance provided critical perspective to under- 

standing present state of affairs and as- 

sessment of effects of withdrawal 

N.J.S.A. 18A:38-13. 

9. Schools ¢&13(19) 

Evidence supported State Board of Ed- 

ucation’s conclusion that substantial nega- 

[1087]



   
tive impact would result from racial imba- 
lance caused by proposed : severance : of 
sending-receiving relationship, or establish- 
ment of dual sending-reéeiving relationship, 
between school districts; board’ considered 
combination of long-term actual loss and 
symbolic ' loss in assessing - effects . of 

_14166.5% reduction. of white population. of 
receiving high school: N.J.S.A. 18A:38-13. 

‘h SCRE [VAS [oT SYVECS VTE 
10. Schools ¢=13(12) 

Racial balance is important ‘considera: 
tion in evaluating potential destabilizing ef- 
fect of severance of sending-receiving rela- 
tionship between school districts. N.J.S.A. 
18A:38-13. ° + fc wad i 

} WE YER 

Mou ah 
3 ital Ipedann a ahi 

11. Schools &13(12) iv 142 [;anitusuha (ai 
Substantial negative “impact resulting 

from severance of -sending-receiving rela- 
tionship, or establishment of dual sending- 
receiving relationship, between’ school’ dis- 
tricts that would lead to 6.6% reduction in 
white population at ‘receiving high-school 
would have overwhelmed positive impacts 
projected by sending school, even if sub- 
stantial negative impact could be offset by 
positive impacts. N.J.S.A;, 18A:38-13: 

10 GH is vt 

EIATEIS TF ETT ANS 
12. Schools &=154(1) | 

Statute governing designation or allo- 
cation and apportionment of pupils to high 
schools only applies to public, school stu- 
dents. N.JS.A. 18A:38-13., ,.  .,. | 

SLANE RN F348 13. Schools &=47 tN a 
Commissioner of Education’s authority 

is solely applicable to public education and 
public school system. N.J.S.A. 18A:4-21 to 
18A:4-40. ABRAM Te] STIS 

4 Lo 5 
4 vd #t. c 14. Schools e=1541) © | [01 

» "In determining whether severance of 
sending-receiving relationship = between 
school districts would have substantial neg- 
ative impact on receiving school, , State 
Board of education could confine its analy- 
sis to those students who attended public 
schools, rather than total potential white 
student pool from receiving district; board 
lacked authority and control over students 
attending private schools."-NJ.S:A: 18A:4- 
21 to 18A:4-40, 18A:88-18. 5110 2'au: ue, 
[1088] 

141715. Constitutional Law €=215, 215.1.‘ 
Fourteenth Amendment proscribes dis? 

crimination on basis of race and extends to 
all state action which distinguishes be- 5 

{ 4 
tween its citizens solely in racial terms . vad 

U.S.C.A. Const.Amend. 14. 

16. Constitutional Law &=213.1(1)  ¢ 
; State’s 

U,S.C.A. Const. Amend. 14, 

17. Constitutional Law &=213.1(2) *. 
* State’s regulation involving semi-sus- 

pect class or which indirectly affects funda- 
. mental right is subject to intermediate level 
of ‘scrutiny, and must further important | 
governmental interest and be substantially 
related to achievement of that -objective! 
U.S.C.A. Const.Amend. 14. , . ¢ 
18. Constitutional Law ¢=213.1(2) 

Rational basis test applies to all state 
regulations not involving suspect 'or semi- 
suspect class and not directly or indirectly 
affecting fundamental right, and requires 
only that there be some rational connection 
between state action and legitimate state 
interest sought to be achieved. U.S.C.A. 
Const.Amend. 14. SLi 

19. Constitutional Law €=220(5). jie 
" ' State Board of Education's decision to 
deny severance of sending-receiving rela- 
tionship- between school districts did not 
involve racial classification, ‘and ‘thus ra- 
tional basis test would determine whether 
‘due process had been violated, despite con: 
tention that denial of severance was done 
to seize children from across school district 
lines on basis of their race to avoid racial 
imbalance at receiving school, and even 
though board’s "decision was race con- 
scious; board’s administrative adjudication 
based upon legislatively mandated consid- 
erations including intertwined concepts of 
quality of education and racial composition 

_lLg1s0f schools applied to all students in sub- 
ject school districts, and thus classification, 
if any, was geographic, rather than racial, 
N.JS.A. 18A:38-13; .» US.CA. : Const. 
Amend. 14... i. ole ay, 

th dvs 

regulation of. . fundamental > 
right or disparate treatment of suspect ial: 
class is subject to strict scrutiny, requiring oY 
compelling state interest and no less-red i 
strictive means to accomplish that goal.’ 

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ortant 
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5.CA. 

ion to 

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istrict 
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Rul Na biis vy Ns sis 

Cite as 608 A.2d 914 (NJ.Super.A.D. 1992) 

20. Constitutional Law &=220(1) 

Although per se use of race as deter- 

minate creates classification subject to 

strict scrutiny, states are not prohibited 

from taking race into account in education- 

al decisions. U.S.C.A. Const.Amend. 14. 

21. Schools &13(12) 

Enforcement of longstanding volun- 

tary, preexisting sending-receiving relation- 

ship between school districts in order to 

prevent loss of diversity in high schools 

was least restrictive means to accomplish 

compelling governmental interest, and thus 

was permissible even if State Board of 

Education's refusal to sever sending-receiv- 

ing relationship was race based classifica- 

tion with respect to white students at send- 

ing high school, especially where Commis- 

‘sioner and State Board of Education clearly 

found that racial discrimination and circum- 

vention of integration was involved in peti- 

tion for severance. N.J.S.A. 18A:38-13; 

U.S.C.A. Const.Amend. 14. 

22. Schools ¢=13(4) 

Particularized finding of intentional 

discrimination is not prerequisite for state 

remedies for racial imbalance in schools. 

US.C.A. Const.Amend. 14. 

23. Constitutional Law &211(1) 

When analyzing equal protection 

claims under State Constitution, balancing 

test similar to Fourteenth Amendment 

‘analysis is used; weights in the balance are 

nature of affected right, extent to which 

government's restriction intrudes upon it 

and public's need for restriction. N.J.S.A. 

Const. Art. 1, par. 1; US.C.A. Const. 

Amend. 14. 

_141024. Constitutional Law €=220(5) 

Schools ¢=13(12) 

State Board of Education’s refusal to 

sever sending-receiving relationship be- 

tween school districts due to racial imba- 

‘lance that would result did not violate state 

constitutional protection against unequal 

treatment; refusal was measured response 

to problem presented, and advanced state's 

education policy. N.J.S.A. Const. Art. 1, 

par. 1. 

25. Schools &47 

Commissioner of Education has broad 

constitutional and legislative powers con- 

cerning public education, which must be 

interpreted sufficiently expansively to cor- 

respond with his high responsibilities in 

education field. N.J.S.A. 18A:4-10. 

26. Schools &=417 

Injunctive relief is power available to 

State Board of Education under appropri- 

ate circumstances. N.J.S.A. 18A:4-16. 

27. Schools &13(12) 

Effectuation of state’s constitutional 

policy in favor of racial balance as function 

of quality of education not only authorized 

but compelled State Board of Education to 

enjoin tuition policy of neighboring school 

district that had serious negative impact on 

racial balance of high school by siphoning 

off disproportionate number of high achiev- 

ers and white and Asian students. 

N.J.S.A. 18A:4-10, 18A:4-16, 18A:38-13. 

28. Schools ¢=13(12) 

State Board of Education could enjoin 

nonparty school districts from accepting on 

tuition basis students from school district 

that sought severance of sending-receiving 

relationship with another district; injunc- 

tion was critical element of board’s attempt 

to remedy problem of white flight from 

receiving district, and was necessary to en- 

sure total compliance with educational 

goals board sought to achieve. N.J.S.A. 

18A:4-10, 18A:4-16, 18A:38-13. 

_142029. Schools 33 

“Regionalization” involves formation 

of entirely new school district governed by 

separate board of education; regional dis- 

tricts can be formed for all purposes or for 

limited purposes. N.J.S.A. 18A:13-2. 

See publication Words and Phrases 

for other judicial constructions and 

definitions. 

30. Schools ¢13(12) 

Cross district regionalization of school 

districts is available to accomplish desegre- 

gation of schools even if single community 

does not exist; principles of home rule and 

local control must yield to fulfillment of 

educational and racial policies in State Con- 

stitution and statutes. N.J.S.A. 18A:13-2. 

[1089



  

   

  

31. dchools ¢=33 rina: . 
Three school districts comprised single community, and thus regionalization ‘study would not be barred even if regionalization ° were limited to single communities, : where 

record demonstrated long term de jure and de facto educational * interconnections be- tween the districts. : 
32. Schools &13(12) +0; 

Governor's general statement in oppo- sition to regionalization of school districts had no effect on State ; Board of ' Edu- 

LL OB - 

STH 

@.: authority to ‘fashion. appropriate’ emedy in specific case involving racial im- balance in schools. LIER CS DRT PN, 
33. Schools e=13(12) '- 7 Palla Hed 

State Board of Education’ could”order study of potential regionalization of g¢chaol districts experiencing racial Imbalance; des . spite contention ‘that no standards’ gov, - N 
erned conduct of such study; board: would determine whether any plan’ for regionali- zation was reasonable, feasible:and. workg- . ble. SEER BF RS EPY PRY JAC 
34. Schools e=13(12) 7 i vars yirggig: 

State Board of Education'could “deny regionalization ‘ of schoo) districts * ‘éxperi- encing racial imbalance, even though six years had passed since inception ‘of case raising issue of racial | 4 imbalarice; where full study was necessary and had not been 
Phair «Tine Yh, 

completed. Tl 
An Dagan! Aliuy 

ALY oT I EASE Joel D. Siegal, Newark, for appellant Bd. of Educ. of the Borough of "Englewood Cliffs (Hellring, Lindeman, Goldstein & Sie- gal, attorneys, Joel D. ‘Siegal, Robert S. 

  

.Raymar, Ronnie F. Liebowitz, Bruce S.'Et- ‘terman and Matthew E. Moloshok, on’'the 
ief). ht 

held “ JS me, EY od ®. C. Jacobson, Deputy Atty. Gen., 
for respondent State Bq. of Educ. (Robert J. Del Tufo, Atty. Gen., attorney, Mary C. - Jacobson and Nancy Kaplan Miller, Deputy 
Attys. Gen., of counsel, Marlene Zuberman 
and Donald Parisi, Deputy Attys. Gen., on the brief). ; 

Arnold K, Mytelka, Newark, for respon- dent-cross-appellant Englewood Bd. of . Educ. (Clapp & Eisenberg, attorneys, Ar- 
' [1090] 

_ the brief). Ty 

3 Jenkins, v. Tp. 

nold K. Mytelka, Paul] L,. Tractenberg and 
Agnes I. Rymer, on the -brief). 
‘James’ S. Rothschild; Morristown, . for 3 5 cross-respondent-respondent Bd. of Edue. . of the Borough of Tenafly (Riker, Danzig, Scherer, Hyland & Perretti, -attorneys, James S. Rothschild, of counsel and on the brief, Vito A. Gagliardi, Jr., on’ the letter : 
brief). 

Stephen M. Eisdorfer, Asst. Deputy Pub. lic Advocate, for amicus curiae The Public Advocate of New Jersey (Wilfredo Carabal- lo,. Public Advocate, attorney, Kevin“ H. Marino, Counsel to the ‘Public ' Advocate, and Stephen M. Eisdorfer, on the brief). 
. Bernard K. Freamon, Newark, for amici - curiae, The ‘N;A.A,C.P.,, the, New : Jersey State Conference of the NAACP, and the. 

Bergen County 1422Branch of the, NAACP v (Samuel L. Walters, Asst. Gen,;, Counsel, -. NAACP, Baltimore, Md. of counsel and on 
%: WL sem nah pig 

Before Judges LONG,’ 
THOMAS. At I Le 1nd, oy 

The opinion of the court was delivered by 

“LONG, JAD: -- = 
On this appeal from ‘a decision of the State Board of Education, we are called 

upon, to interpret the term “substantial negative’ impact” in NJ.SA.. 18A:38-13 (the statute which requires the approval of 
the Commissioner of Education before a .Sending-receiving relationship between two .8chool districts may be severed); to revisit the so-called single community doctrine of 

of Morris School District and Bd. of Educ.,'58 N.J. 483, 279 A.2d 619 (1971); to explore the power of the State Board to act generally in aid of its jurisdie- tion, and to assess the State Board's deci. 

ing some unwilling districts. 
1 We hold that N.J.S.A. 184:38-13 is not a traditional balancing statute.. In assessing "an application for Severance, the finding of - 8 substantial negative impact,on education- -al quality .in one . district warrants. disap- .-proval of . severance, ‘notwithstanding any 
number of “positive” impacts which sever- 

BAIME and “/ 

sion to order a regionalization study includ- 

  

  

 



    

  
oT 

  

ance would bring to the other district. We 

‘also hold that under Jenkins, the existence 

‘of a “single community” is not a prerequi- 

site to the power of the State Board to 

bridge school district boundaries where 

necessary to vindicate the State’s policy 

against segregation. In addition, we con- 

firm the power of the State Board to issue 

such ancillary orders to school districts in 

this State as are required to ensure compli- 

‘ance with its policies. Finally, we affirm, 

‘as a viable alternative under the facts 

presented, the State Board's order that a 

regionalization study take place. 

I 

Procedurally, the case arose on Decem- 

ber 23, 1985, when the Board of Education 

of Englewood Cliffs (Cliffs) filed a petition 

with the Commissioner of the New Jersey 

Department of ' 142sEducation (Commission- 

er) under N.J.S.A. 18A:38-13, seeking to 

sever the sending-receiving relationship 

with the Board of Education of Englewood 

(Englewood) pursuant to which Cliffs had 

been sending its high school students to 

Dwight Morrow High School (DMHS) in 

Englewood. Englewood opposed the peti- 

tion and filed a cross-petition seeking to 

enjoin the Board of Education of Tenafly 

(Tenafly) from: accepting high school stu- 

. dents from Cliffs or Englewood. Engle- 

wood also asked that the Commissioner 

regionalize the three municipalities into one 

district at the high. school level. Tenafly 

sought the dismissal of the cross-petition 

as to it and Cliffs answered, opposing re- 

gionalization. The Commissioner transmit- 

ted the matter to the Office of Administra- 

tive Law as a contested case pursuant to 

NJ.S.A. 52:14F-1 to -11. Between Janu- 

ary 7, 1987 and October 6, 1987, Adminis- 

trative Law Judge Kenneth Springer (ALJ) 

conducted 99 days of hearings. 

On April 18, 1988 the ALJ issued an 

initial decision recommending the denial of 

Cliffs’ petition for severance because of the 

negative impact which severance would 

1. On November 1, 1988 the State Board granted 

the motion of “AS.” a Cliffs’ seventh grader 

attending school in Tenafly, to intervene in the 

proceedings on the question of whether the 

Commissioner's eighth-grade cut-off was arbi- 

Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 

have on the racial balance of DMHS; the 

denial of an alternative ‘“‘dual” sending- 

receiving relationship among Englewood, 

Cliffs and Tenafly because it offered no 

real free choice to less affluent Englewood 

parents; and the denial of Englewood’s 

cross-petition for regionalization or a com- 

prehensive regionalization study because 

the potential risks of regionalization were 

greater than the potential rewards. He 

also recommended that Tenafly be re- 

strained from accepting any students from 

Cliffs or Englewood not currently enrolled 

in a Tenafly school. All parties filed excep- 

tions. 

On July 11, 1988 the Commissioner is- 

sued a decision adopting the ALJ's findings 

and recommendations. © However, he direct- 

ed that eighth graders from Cliffs, enrolled 

in Tenafly as of April 18, 1988, be allowed 

to remain in Tenafly and attend Tenafly 

High School (THS) should they so desire. 

In refusing to order regionalization or a 

comprehensive regionalization study, the 

Commissioner opined that regionalization is 

only / |gpeavailable where the districts to be 

regionalized constitute a single community; 

where tlie proofs establish that regionaliza- 

tion would be feasible, reasonable and 

workable; and where regionalization can 

be accomplished without any practical up- 

heavals. He concluded that Englewood 

had failed to meet these criteria. Cliffs 

and Tenafly appealed to the State Board of 

Education and Englewood cross-appealed.! 

Subsequently, the Legal Committee of 

the State Board issued a report essentially 

adopting the findings and conclusions of 

the Commissioner, with two important 

modifications: first, because there was in- 

sufficient evidence of the need for regional- 

ization, the Committee recommended that 

the Commissioner monitor the racial com- 

position of DMHS and report to the State 

Board periodically with his findings. Sec- 

ond, the Committee recommended that the 

injunction against accepting Cliffs and En- 

trary. (The State Board ultimately held that the 

eighth-grade cut-off was not arbitrary, which 

holding is of no moment here because the inter- 

venor is not participating in the appeal.) 

[1091]



    920 N.J. 

glewood students. be extended; to all public : 
school boards in the State.. Cliffs, and, En- .. 

glewood filed exceptions. ijsiss wnivisyos 

On April 4, 1990 the State Board ssid a 

decision. which ‘essentially affirmed |:the 
findings and conclusions: of: the. .Commis- 
sioner with some: modifications, including 
those recommended by the; Legal Commit- 
tee. It also directed Cliffs and Englewood 

to develop a plan, in consultation with the 

Commissioner and subject. to his approval, 

to encourage their students to. attend 
DMHS. It ordered, the Commissioner; to 
monitor the plan and the racial composition 
of DMHS for five years and to report to it 
annually as to the effect of the plan on the 
racial composition of DMHS. The ‘State 

Board ‘exempted from!its decision all stu- 

dents from Cliffs and Englewood attending 

THS J so50r other public high schools ‘as of 

the date of the initial. decisions jap 18, 
1988). ie Lil vith G3 

Cliffs appealed, challohging) the State 

Board's denial of its petition for severance, 
the denial of a dual sending-receiving rela- 
tionship ‘and the ‘injunction. : Englewood 
filed a notice of cross-appeal from the State 
Board’s * failure to order: regionalization. 
We granted: the ‘motions of the: National 
Association for the: Advancement of : Col 
ored People (NAACP) and the Public: Advo- 

cate for amicus status. ‘Englewood: filed 
an application for direct certification to the 

New Jersey Supreme Court which was de- 
nied, (tis 

During the MP of «this rappel, 
Cliffs and Englewood submitted their plans 
to encourage enrollment at DMHS to the 
Commissioner. , On June 5, 1991 the Com- 
missioner published his first annual report 
which suggested certain changes in those 
plans and recommended that the’ State 
Board order a regionalization study be- 
cause of his doubts as to the effectiveness 
of remedial measures short of regionaliza- 
tion. On July 3, 1991 the State Board 
resolved to adopt the Commissioner's rec- 
ommendations. 

On August 5, 1991° Cliffs’ Sy 
filed motions for leave:to: appeal from the 

State Board's resolution authorizing a’re- 
gionalization study, claiming that the State 
Board’s resolution violated R. 2:9-1 be- 

[1092] 

608 ATLANTIC REPORTER, 2d SERIES 

t Because the Commissioner and the State 

forth at length. We will also detail the 

: operates two elementary schools, one: nid: 

: households in - Cliffs and Tenafly have 

ous community, Cliffs and Tenafly are pri- 

     

  

    

         

cause of the pendency of the earlier. appeal. 
We granted leave and stayed the resolutio na 
pending this review. The appeals 

consolidated on September 10, 1991 

Ir: 

‘The. rod in this ‘case is volun 

Board each essentially adopted the: fact: 
finding of the ALJ, his decision will be, set 

recommendations of the ALJ and the, deci- ; 

sion of the Commissioner, even where they . 
differ from the final decision of the State 
Board, because that counterpoint serves to fy 

clarify the State Board's rulings. Or 

Jaze. The Districts’ a : 

_ The Borough of Englewood Cliffs is ele 

affluent suburban community, of . approxi- “ed 

. mately two square miles. - According to the its 

1980 census, it had a population, of 35, 698, 4d 
‘which was 85.0%, white, 9.3% Asian, 3.9% 

Hispanic, and 0. 8% black. ., Cliffs operates 

two. K-8 schools for, its students. Because in 

(it has no high school facilities, since, 1965 “la 

Cliffs has had a sending-receiving relation- “E 
ship. with Englewood. Ts Lolit hue. gdh b 

. Englewood is a more urban comigiy wy 
than Cliffs. :':: Approximately: five': miles n 

“square, it had 23,701 residents according to F 

“the 1980 census.’ Of those residents, 44.6% = ; 
swere white, 40.6% were black, 8.8% were = 0 g 
Hispahic and 2.8% were Asian. Englewood i 

dle school and DMHS. 

‘Tenafly, like Cliffs, is a suburban ‘com- 

munity. It is approximately four-and-one- 

‘half ‘miles square and, according to the 
‘1980 census, had a population of 13,552. 

Of these, 91.3% were white, 4.5% Asian, 

"8.0% Hispanic and 0.6% black. Tenafly op- 
erates four elementary schools, a middle 

‘school and THS.: 

Al three districts’ are considered “afflu- 

ent” relative to other communities in the 

county and state. As among themselves, 

much’ higher incomes than those in Engle- 

wood. While Englewood is a heterogene- 4 

  
 



   

    

        

  

   

   

      

   

    

   

ly op- 

riddle 

afflu- 

n the 

elves, 

have 
ngle- 

gene- 

e pri- 

ht V4 

marily white with growing Asian popula- 

tions. All three districts are contiguous. 

3 Tn, addition to sharing common borders, 

the other significant community ties among 

¢ three districts include: some common 

cultural and recreational facilities (e.g., at- 

Yandance by Englewood and Cliffs’ resi- 

dents at summer and adult school pro- 

a, grams in Tenafly); a common public library 

igor Englewood and Cliffs; common medical 

#pa cilities; shared road and public transpor- 

tion links; and common religious servic- 

bal © _14zB. The Schools 

4. ‘Both DMHS and THS are four-year sec: 

“ondary schools, i.e, grades 9-12. Begin- 

, ning in the 1988-1989 school year, Engle- 

~ wood had planned to expand DMHS to in- 

~ clude eighth.grade students; Cliffs intend- 

“ad to continue sending its eighth graders to 

its own school. 

: 1. DMHS 

152 The school plant consists of two build- 

o'ings (built in 1931 and 1967) on a well 

ls1andscaped, 34-acre campus shared with 

“Englewood’s middle school. The older 

¢ building features an “exceptionally attrac- 

“tive” Gothic facade; the newer building is 

“more austere. In 1985, a state facility 

planning team inspected DMHS and report- 

“ed more than 20 deficiencies, ranging from 

chained and locked exit doors to “crumbly 

plaster” in classrooms. Nevertheless, offi- 

‘cials did not cite DMHS for any violations, 

‘and the ALJ concluded that DMHS “must 

be deemed in substantial compliance with 

all applicable pbuilding standards.” In 1981, 

Englewood completed a $1.45 million reno- 

“vation of DMHS and approved a long-term 

improvement program for the period 1987- 

‘1991 at a cost of $2.08 million. 

DMHS is a member of the Middle States 

Association of Secondary Schools and Col- 

leges (Middle States), a voluntary organiza- 

tion which uses an elaborate procedure for 

accrediting member schools. In 1976, Mid- 

dle States approved DMHS but offered a 

list of recommendations for improvements. 

Although the deadline for re-evaluation 

was originally to expire in 1986, Middle 

States granted DMHS three successive 

ENGLEWOOD CLIFFS v. ENGLEWOOD 

Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 

N.J. 921 

one-year postponements and, as a result, 

re-evaluation was not completed by the 

time of the hearing; nevertheless, DMHS 

has never lost its accreditation, 

The DMHS teaching staff has appropri- 

ate certification and adequate training and 

experience. ‘In 1986-1987, the 94 teaching 

staff members were 61.0% white, 32.0% 

black and 6.0% Hispanic or Asian. A sur- 

vey showed that teacher morale at DMHS 

was low in several areas: teachers wanted 

more input _|4psinto the decision-making 

process and improvement of the physical 

working environment. During the 1980s, 

administrative instability was a problem at 

DMHS; three principals were hired  be- 

tween 1980 and 1986. Nevertheless, the 

qualifications and competence of Richard 

Segall, the DMHS principal who succeeded 

to the position in 1986, is unchallenged. 

With Segall, Englewood mounted a cam- 

paign to deal with the problems at DMHS. 

At the time of the hearing, the DMHS 

library totaled approximately 16,000 vol- 

umes; however, many of the titles were 

outdated. - The school attempted to 'in- 

crease the effectiveness of its library by 

extending hours of operation and by in- 

creasing (by 300.0%) the amount it spent on 

printed materials. 

DMHS provides a wide range of courses 

for students of different ability levels and 

interests, including advanced placement, 

honors, and enrichment courses. Class size 

tends to be fewer than 20 students. In 

1987, 64.0% of DMHS graduating seniors 

entered four-year colleges, and of those, 

almost 50.0% attended colleges rated “very 

competitive” or above by Barron's Profiles 

of American Colleges (15th ed. 1986). Be- 

tween 1986 and 1987 seven DMHS gradu- 

ates attended Yale University, and a Yale 

official testified that the university valued 

the racial and cultural diversity at DMHS 

so highly that Yale representatives visited 

DMHS annually. Many of Cliffs’ students 

were enrolled in advanced placement 

classes at DMHS and excelled academical- 

ly; in 1986, 22 out of the 23 Cliffs’ students 

who graduated from DMHS went on to 

college. In addition to college preparatory 

programs, DMHS offers a substantial in- 

[10931 ° 

or AAAI EI be  



   922 N.J. 32 

dustrial ‘arts: program, a: broad chntinunm 
of special education. services and :a wide 
range of. guidance services. 

The SAT scores at DMHS are in Neafing 
with New Jersey averages. However, the 
DMHS scores on the High School Proficien- 

- cy Test:in 1985, the first year the test was 
required for freshmen, were ;gubstandard. 
In 1986-1987, however, , the | scores. im- : 

proved substantially, placing DMHS above a 
the State |saverage in writing and math 
but slightly below average. in reading, Jn 
general, those DMHS students. . Who were 
not college-bound fared worse on standard- 
ized tests than average. ‘Bergen | County 
high schoolers. = Conservative estimates 
placed the DMHS dropout’ rate for grades 
9-12 at 7.8% in 1986, which was high when 
compared to the county gyerage of 2.0%— 
3.0%. 

DMHS offers a wide Busy oF ir : 
cular activities including ‘athletic teams, 
honor societies, debating and public affairs 
clubs, ' dramatic‘ and‘ musical: productions, 
and school publications. Cliffs’ students 
actively participate : in these: programs; 
their degree of participation exceeds. that 
of their Cliffs’ peers at THS.. 

Historically, DMHS' has’ placed “special 
emphasis on proper student behavior and, 
under Segall’s leadership, :instituted ‘new: 
policies to reduce the number of students 

who. cut classes and engaged. in, other ; 
wrongful behavior. Attendance has been a 
major concern. Although DMHS saw, a 
rise in attendance from 88.5% in 1985 to 
90.8% in 1986-1987, its ultimate goal is 
95.0%. Disciplinary ‘out-of-school suspen- 
sions and the number of “police and fire 
department calls dropped substantially be- 
tween 1981 and 1987. No substance abuse 
incidents were reported in “1985 ‘or’ 1986. 
On balance, the ALJ concluded that there 
was no foundation for rumors ‘that stu- 
dents’ safety and well-being ‘were compro- 
mised at DMHS. ‘In general, ‘expért ‘and 
lay witnesses alike described DAH | as a 
very good school. AIEEE : 

2, THS, 

; Completed in 1972, THS. i854 8 “modern, 

. well-maintained facility on a, 28-acre, tract 

2. Significantly more evidence ‘was introdtced sh 
and is recapitulated as to DMHS because it is 

[1094] 

+608: ATLANTIC REPORTER, 2d SERIES 

; abutting a stream. The interior is pleas 

well-equipped science and computer labo : 

“tories, student-teacher conference . roo 

“offers a wide array of co-curricular acti 
ties, 

“The THS faculty was, however, characte 

., nafly Borough populations generally, Like - 

them and do not receive proper recognition 

basis. 
. special education programs and offers a 

- 1984-1985 school year. 
_vative approach to discipline, giving quali- 

_ ods. 

* admitted having concealed a number of oth- 
‘er such incidents that year, 

‘reported at DMHS might have been due to 

,. executed a 10-year, sending-receiving con- ! 

   
     
    

  

   

    

    
    

   

and cheerful, and: the school features: 
library/media center with 28,000. boo 

and a television studio. “Like DMHS, THS 

sit 

At the time of the ‘hearing, THS teachers 
had a slight edge over DMHS teachers. in 
terms of experience “and advanced degrees 

ized by a |olack of ethnic’ diversity | 
1986-1987, 85 of its 87 teachers were 
white), reflecting the THS student and Te- 

DMHS, . THS has experienced problems 
with administrative turnover and teacher. 
morale... Teachers have complained that 
they lack .input as to decisions affecting 

for their efforts.” 

Because the pal hajority of | 
THS students are ‘college bound (83.0% of 
THS graduating seniors entered four-year 
colleges in 1987), THS emphasizes college 
preparation. It offers limited industrial 
arts classes, and sends its vocationally mo- 
tivated ; students to the Bergen County 
Technical Education Center on a half-day 

It does not have a full spectrum of 

conventional guidance program emphasiz- 
ing college admissions. 

Attendance at THS was 95. 9% during the 
THS uses an inno- 

fied students freedom to move about the 
school facilities during unscheduled peri- 

In 1984-1985, THS reported three 
incidents of drug use, although it later 4 

: The ALJ 
opined that the disparity between the num- 
ber of drug incidents ‘at: THS and those 

greater monitoring at THS.2 

'C. The Relationship between’ 
, the Districts 

In October 1965, Cliffs and Englewood 

the quality of that school which Cliffs made the 
primary issue.in the case.: is   
 



   

    

   

    

     

  

   

   

   
   

  

   
   

Cite as 608 A.2d 914 

tract to begin in 1967. The agreement 

essentially obligated Cliffs to send its pub- 

lic high school students to DMHS and re- 

quired that Englewood maintain DMHS' 

accreditation and confer with Cliffs “on 

matters of mutual concern to the High 

School program.” Cliffs was obligated to 

pay Englewood for the cost of educating its 

tudents. 

Eo “gmEvery year between 1970 and 1976 

& Cliffs sent approximately 60.0% of its grad- 

: nating eighth graders, or approximately 60 

to 70 students, to DMHS. The remaining 

+ Cliffs’ eighth graders chose to attend pri- 

‘1yate schools. During these years, the total 

  

ly, Li 
Yoilike 

- number of ICliffs’ students attending the school; however, the program ceased 

teacher 
+. DMHS averaged approximately 245 per after one year, and by 1982 Cliffs stopped 

ed that +.year. During the middle 1970s, however, encouraging its students to attend DMHS 

ffecting 
~ Cliffs became dissatisfied with the sending- altogether. 

ognition 
receiving relationship. In 1977, rather '. Before 1982, THS was the receiving 

: Sie a _ than renew the relationship and because school for students from Alpine, 2 wealthy 

ority of 
applicable law made terminations of such community on Tenafly’s northeastern bor- 

33.0% of relationships subject to the Commissioner's der. Around 1982, Tenafly’s superintend- 

ur-year 
approval, Cliffs petitioned the Commission- ent reported to Tenafly that, in an informal 

. college 
er to sever the relationship so that it could discussion with Dr. Harold France, Super- 

dustrial 
explore the establishment of sending-re- intendent of Cliffs’ schools from 1973 to 

ally mo- : ceiving relationships with other districts. © 1986, Dr. France had said that it would be 

County 
Englewood opposed the severance. Cliffs “most interesting” if and when Tenafly 

half-day 
eventually withdrew its petition, apparently decided to admit non-resident students on a 

trum of because it was unable to support its allega- tuition basis, i.e. admission based on indi- 

fers 2 tion that DMHS was not providing 2 good vidual tuition agreements with parents out- 

hphastz- Ri education. 
side the district as opposed to a sending- 

5140 E "In 1978, Cliffs commissioned Francis A.J. receiving agreement with another district. 

rg the = 3 anni and others, to study “the communi- In 1982-1983, Tenafly instituted a program 

an 1nno- 3 ty’s attitudes towards their educational to admit non-resident students to its public 

£ Justh 4 3 programs” ostensibly because of the de- schools, including THS, on a tuition basis. 

0X. fori. 3 cline in the number of Cliffs’ students who When the program was adopted by Tenaf- 

_ peri 1 
: : 

: i 

dco 
were attending public school generally. In ly, Cliffs began providing, upon request, 

it5 Tater 
1979, the Ianni study concluded that the written instructions to the parents of 

oth 
Cliffs’ community was dissatisfied with the Cliffs’ students as to how to apply to THS 

he - ALJ 
class sizes and atmosphere in the lower for admission on a tuition basis, although it 

he num- 
grades, and the academic preparation in the did not provide such instructions for any 

d those 
middle grades. The study also showed other school. 

1 due to that, at the high school (DMHS) level, By 1983-1984 Cliffs had amassed griev- 

- 
Cliffs’ parents were mostly concerned with ances against DMHS as follows: declining 

in 
ake) balane discipline and educational attendance of Cliffs’ students at DMHS; 

standards. 
the belief that DMHS was mo longer an 

a ood 
In the late 1970s, newspaper articles em- effective school; Englewood’s plan to begin 

NEON 
phasizing the negative aspects of DMHS sending its eighth graders to DMHS, there- 

] began to appear. These newspaper ac by further alienating Cliffs’ DMHS stu- 

made the 
counts contributed to the growing public - dents (because they would be at DMHS one 

He i perception that DMHS had serious prob- year less than Englewood’s students); and 

[1095]   

ENGLEWOOD CLIFFS v. ENGLEWOOD 
N.J. 923 

(N.J.Super.A.D. 1992) 

lems and to the declining enrollment of 

Cliffs’ students at DMHS. During this pe- 

riod, the question of severance became a 

political issue; at one point all of the candi- 

dates for Cliffs’ school board were in favor 

of severance, and the slate most committed 

to severance ultimately prevailed in the 

1985 election. 

_|yg2Between 1974 and 1982, Cliffs affirm- 

atively encouraged its high school-aged stu- 

dents to attend DMHS. For example, dur- 

ing 1980-1981, “cottage parties” were held 

petween Cliffs and Englewood, at which 

board members and teachers from DMHS 

were available to answer questions about 

 



   
eighth graders to DMHS. .. In November -. 
1985, Cliffs voted to enter. into. a. sending- '; 
receiving relationship with. Tenafly; : Tenaf-" 
ly reciprocated. . Until such time:as Cliffs’ 
sending-receiving relationship with Engle- 
wood was terminated, however,. the: THS . 
policy was to accept. Cliffs’ ;and other. mu- 
nicipalities’. students on a. tuition ‘basis. +. 
The_j sgsprimary factors which THS,, con- 
sidered under its _private ; admission . ,pro- 

@: were the academic, ‘disciplinary and 

tion for 1987-1988, Was, approximately 
$5,480. 5 

‘From the inception of the’ 'THS private 
tuition program through 1986,:59.3% of its 
private students came" from : Cliffs : and 
22.9% from Englewood. In 1986, 76 stu- . 
dents came from Cliffs and 16 from, Engle- 

D. Racial Composition and Enroliment 
Trends at DMHS and THS' 

In general, public school enrollniont § was 
down in all three districts and this trend 
seemed likely to continue. . Since 1977, en- 

arfige 

Englewood’s failure to have discussed with | 
Cliffs, in advance, the policy. of ‘sending ! dropped dramatically and at a much faster. 

7: oghe ! wloa dy A 

irollment of Cliffs’ students .at DMHS 

- rate than the general decline in the school 
-aged population.’ Having averaged approx- 

: imately 60.0% throughout ‘most -of the 
.1970s, - the number of graduating : Cliffs’ 
‘eighth graders attending DMHS fell from a 
"high of 69.0% in 1980-1981 to a low of 4.4% 
in 1987-1988, or 2.6% of the total DMHS- 
-enrollment. . In 1982-1983, 1,128 students 

i: attended DMHS, of whom: only 119° were 
from Cliffs. In that year the DMHS stu- 

10.3% Hispanic and 2.7% Asian. In 1987- 
{y 

'. student body, of whom only 21 were from 
Cliffs. During that year, the racial compo- 

"sition: of ‘the 'DMHS - student body: had 
- changed to 11.8% white, 66.2% hiaek, 17. 3% 
‘Hispanic and 3.9% Asian. 

i After Tenafly’s non- sogient private oi 
mission program began in 1982, the num- 

; ber of Cliffs’ students attending THS rose 
;. annually while the number of Cliffs’ stu- 
, dents attending DMHS continued to drop. 
- Table 1 sets forth the enrollment trend 

:+ between .1982 and 1988: 

|TABLE 1 

School Terms: 
svt Cliffs Students 

::i:Attending DMHS 
Cliffs Students: = 
Attending THS 

  
  

  

iii Nhe Bie | Je Rea SE ETT 1023-1084, = T&F ggewans A WR “+: 1984-1985. inl, 34%. ": v.38. . 1985-19861... 51 soi: . 60 - ¢. + 48 - 1986-1987; « :; .. 17: i 85. 62 1987-1988, si; ogi LA 76 

  

w addition, following the inception of Te- A 
afly’s tuition program, the number of non- 

resident tuition students from all districts | 
attending THS increased, . By Seam, i 
THS had 74 non- resident students, 
roughly three times the number of non- 
resident students enrolled in any other, high 

‘In 1987-1988, Cliffs’ 486 students were 
50.8% white, 42.2% Asian, 5.5% Hispanic 
-and 1.5% black. Of the 21 Cliffs’ students 
attending DMHS in 1987- 1988, 15 were 
white, 4 were Asian and two were Hispan- 

ic. Had Cliffs sent those students to THS 
; instead, it would have altered the composi- school district in the State. For. example, ;- tion of DMHS to 10.2% white, 68.0% black, + of the 43 high school districts . accepting 

»: non-resident students, only, 16; had more , 
f;uthan five such Stndents? HL Beul-985Y.. 

7 [1096] 

18.0%. Hispanic and 3.5% Asian. Such.an 
i alteration ‘would have been a 16.0% loss in 

¥ ' the DMHS white student body but would 

t'dent body was 81.6% white, 56.5% black, ttendance records of the applicants. Tui- oN body 

1988,. 799 ‘students made up ‘the DMHS 

  

  ~ 
re
 

pt
 

OO
 

TY
 

TS
 

 



  

  

AULNE AURAL VY VOU Chsas a vu 

Lit Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 

~~ "have resulted in only a 1.6% decrease in the 
“proportion of white students at DMHS. 

.* Had the sending-receiving relationship 

“been terminated in 1982-1983, 119 students 

- “would have been withdrawn from DMHS, 
“rather than the 21 under the 1987-1988 

* ' figures. According to the 1980 census fig- 

..ures for school-aged children of Cliffs, in 

: 21982-1983 this would have resulted in an 

- approximately 6.5% decrease in the DMHS 
- h white student body.? 

In 1985-1986, the THS student body of 

‘946 was 84.0% white, 13.4% Asian, 1.3% 
* Hispanic, and 0.6% black. Of the 48 Cliffs’ 

: _|4ssstudents attending THS in 1986, 38 were 

white, 8 were Asian and 2 were Hispanic; 

none was black. In 1987-1988 the THS 

student body which declined to 891 was 

+ 80.7% white, 17.8% Asian, 0.9% Hispanic 

and 0.6% black. 

Englewood’s own students had, increas- 

ingly over the years, chosen to go to pri- 

. vate schools rather than attend Engle- 

- wood’s public schools. Private school alter- 

natives were readily available in the area, 

including more than 20 non-public second- 

ary schools. According to Dr. France, the 

student migration away from public 
schools begins early (i.e, sixth or seventh 

grade) as parents desire to reserve a place 

for their children in the upper grades of 

selective private schools. 

E. Causes and Effects of the 

Migration from DMHS 

From the time Cliffs made known its 

intention to form a sending-receiving rela- 

tionship with THS and terminate its send- 

ing-receiving relationship with Englewood, 

“Englewood argued that the issue was not 

school quality but race. Englewood’s ex- 

perts, Drs. Michelle Fine and Jerry Jacobs, 

explained that many white parents perceive 

integrated schools as inferior, and that this 

perception is a motivating factor in white 

parents’ decisions as to where to send their 

children to school. Tenafly’s expert, Dr. 

Eugene Smoley, Jr., acknowledged that 

both the quality and the perceived quality 

of a school are what substantially motivate 

) 3. The record did not include a specific racial 
breakdown of Cliffs’ students at DMHS during 

Ye Aainn vie se VR 

parents’ selection. Englewood’s experts 

stressed the educational importance of ra- 

cial diversity in public schools. 

A white Cliffs’ resident, a 1986 graduate 

of DMHS, described her high school experi- 

ence and related that as an eighth grader 

in Cliffs’ upper school in 1982, she regular- 

ly heard her classmates using terms like 

“Dwight Nigger” and “Black Morrow” to 

refer to DMHS students. She also de- 

scribed the prevailing Cliffs’ misconcep- 

tions about DMHS, including fears that 

female students would be attacked or 

raped, that students’ property would be 

stolen, and that students would be exposed 

to rampant drug abuse and unsafe rest- 

rooms. On the contrary, she, |43salong with 

many Cliffs and Englewood parents and 

students, believed that DMHS was a good, 

safe school which received wide support for 

its functions and sports activities from 

members of both communities. 

While Englewood acknowledged that it 

should have consulted Cliffs with respect 

to its decision to move its eighth graders to 

DMHS, it maintained that, throughout the 

course of its sending-receiving relationship 

with Cliffs, there was open communication 

between the two boards and that their rela- 

tionship was a good one. For example, 

Englewood involved Cliffs in the search for 

a new DMHS principal, which ultimately 

resulted in the selection of Segall. Al 

though he cited several examples of dis- 

agreements between the two boards over 

the years, Dr. France acknowledged that 

the relationship between the two boards 

had been professional, and that generally 

Englewood had kept Cliffs informed of rel- 

evant matters and had responded to Cliffs’ 

concerns. 

Much of the evidence indicated that if 

Cliffs’ parents were prevented from send- 

ing their children to THS, they would not 

send them to DMHS. This was largely due 

to the common perception in Cliffs as to 

problems at DMHS and the resulting “so- 

cial pressure” on Cliffs’ students not to 

1982-1983. 

[1097]



   attend DMHS. On the other hand, there 
was some evidence that certain. Cliffs’ par- 
ents would still enroll their ; children at 
DMHS and keep them enrolled there if 
tuition relationships with THS were en- 
joined (e.g., in 1988’ 8 of 14 Cliffs’ eighth 
graders planning to attend THS said they 
would attend DMHS if not allowed to go to 

THS. Out of 25 Cliffs’ students who start- 

would be 48 white students ‘at DMHS, or 
6.7% of. the, student, body. In an. 8-12 
grade school, Tomei projected a total of 61 
whites without’ severance, or 7.6% .of the 
student body; with severance, he projected 
a total of 46 whites or 5.8% of the student 
body. Unlike Englewood’s, experts, Tomei 
projected no secondary loss, of middle class 
Englewood black and Hispanic students as 
a result of severance. , . 0 

Hi Gn anid 

. Dr.!Jacobs opined. that, .in ;the event of 
severance, DMHS would ‘be; 3.0% white, 
1.0% Asian, 77.0% black and 18.0% Hispan- 
ic. Along with Dr, Jacobs, Dr., Fine .also 
argued that there would .be a secondary 
impact—i.e., the loss of Englewood white, : 
Asian and middle class black and Hispanic - 
students from DMHS., According to these 
experts, a decrease in the racial diversity of 
DMHS and migration of its white students - 
would be widely seen as an acknowledg- 
ment that DMHS is an inferior school es- 
sentially for the poor and unmotivated stu- 
dent and would also result in a so-called 
“symbolic loss,” which would’ stigmatize 
those students still attending DMHS after 
a severance. : = : Was." TIE 

F. Regionalization 
Instead of prescribing a definitive region- : 

alization configuration, Englewood pro- 
[1098] 

ie. 

“tially stable for the five-year period 
R109L. ii we 

  

+:posed several different scenarios, all of 
which took into account the fact that nei: 

.pther DMHS nor THS is large enough to 
accommodate the combined districts’ stu- 
dent body (1,690). The first scenario ce 

  

tered around the existing structures. One’ 
- facility could be used for grades 9.and 10 
«and the other for grades 11 and. 12,., A. 
second possibility was. to create two mag 
- net schools (one: for arts and humanities 
and one for science and math).i. A third . 

, variation was to use each facility as a com 
© prehensive 9-to-12th grade high school but 
not to assign students to the schools based 

on residence. Another alternative was to 
enlarge the THS facility to. accommodate 

~..all the students.. The final possibility was 
-;to combine or regionalize,ss the three dis- 

i tricts and construct a new high school for 
"the region. The configuration .;chosen 

. would be, dependent upon the . region’s 
~. goals and the resources available, 

' According to Dr. Jacobs, regionalization 
. of the three districts (taking into considera- 

~ition the Alpine students currently attend- 
ing THS) would create a. 9-to-12 high 
-8chool region which would be 48.0% white, 

~ 31.0% black, 18.0% Asian and 8.0% Hispan- 
Those percentages would be substan- 

1986 to 
43 

Along with Jacobs, Englewood’s expert, 
Dr. Daniel Knueppel opined that regionali- 
zation would not cause substantial “white 

_ flight.” According to them, regionalization 
‘would have many attributes, including: 
providing affirmative action for the exist- 
ing THS staff as it merges with the DMHS 
staff; creating comprehensive social learn- 

-.ing for THS students as they interact with 
the racially and economically diverse stu- 
dent body and faculty at DMHS; solving 

+ the problems which both schools have had 
. with declining enrollments; creating one 

. school region with an optimal (t.e., approxi- 
mately 1500) enrollment;. and combining 
the strengths of the two programs by pro- 
viding a broader and richer educational ex- 

... perience, All experts substantially agreed 
that regionalization of the three districts 
;was theoretically feasible, based upon the 
geographic proximity of the districts, the 

    
    
   
   
   

    

   

  
 



  

ios, all of 
>t that nei- #3 

enough to “%4 
tricts’ stu- 

school bu 
ools based 
ve was to 
ommodate 

ibility was 
three dis- 

school for 

n .;chosen 

|. region’s 
ga 

nalization 

considera- 

ly attend- 

—-12 high 

0%. white, 

%o Hispan- 

 substan- 

d 1986 to 
ne! 

's expert, 
regionali- 

al “white 

nalization 

including: 

the exist- 

he DMHS 

ial learn- 

ract with 

erse stu- 

; solving 
have had 

ting one 

approxi- 

ombining 
8s by pro- 

tional ex- 

y agreed 

districts 

upon the 

ricts, the 

  

  

   

   
     
   

   

   
    

[ 
Eg | 

14 

»DMHS and THS, and the conceivable finan- 

“cial resources available. 

There was also testimony as to the nega- 
_ tive side of regionalization, including: the 
‘cost of building a new school or, in the 

“alternative, the increased costs of running 
_ both schools simultaneously as one region; 
"the increased cost and amount of busing; 

the potential loss of community support 

and involvement in the schools; a perceived 

"loss of local control over the schools; the 

"potential damage to the proven success of 

Tenafly’s high level of K-12 curriculum 

articulation; the potential lack of racial 
~ diversity and harmony even after regionali- 

zation; |] gsediminution of staff morale and 

participation in decisions; diminution of 

' student participation in co-curricular activi- 

ties, and reduction in the individualized ap- 
proach to education. Thus, although it was 

feasible, Cliffs and Tenafly maintained that 

‘regionalization was not practical, reason- 

able or desirable. 

G. The ALJ's Findings and 

Recommendations 

‘From these facts, the ALJ ‘arrived at the 

following findings on Cliffs’ motivation for 

seeking severance: 

Among the reasons why the Cliffs Board 

might legitimately prefer THS are: (1) A 

more suitable academic program for 

most college-bound Cliffs students; (2) 

Less need for emphasis on discipline and 

more opportunity for student indepen- 

dence and self-reliance; (3) Nicer and 

newer school facilities; (4) A better 

stocked library; (5) Past administrative 

instability at DMHS; (6) Past failure by 

the Englewood Board to correct deficien- 

cies over a period of years and (7) Inade- 

quate consultation by the Englewood 

Board about an important matter affect- 

ing the Cliffs students. 

He concluded: 

Accordingly, the Cliffs Board's request 

for relief is made in good faith, for what 

it conceives to be the best educational 

interests of its students. 

LINGLISWUUD val id Vv. uiNuLisyw UU b IN.J. YZ 

Cite as 608 A.2d 914 (NJ.Super.A.D. 1992) 

: - "historical attendance of students across dis- 

:itrict lines, the general compatibility of 

However, as to the quality of education at 

DMHS, the ALJ opined: 

Cliffs students at DMHS can get a good 

solid education which more than ade- 

quately prepares them for college and 

for later life. In addition, DMHS has a 

broader and more comprehensive curric- 

ulum, superior in certain respects to the 

more narrow focus of THS's curriculum, 

particularly for students interested in vo- 

cational careers or requiring special edu- 

cation services. Recently, the Engle- 

wood Board has made headway in cor- 

recting many of its past problems. 

With respect to the impact of severance on 

racial balance, he found that: 

[Blecause DMHS is so precariously short 

of white and Asian students, loss of even 

a small number of Cliffs students would 
have a significant impact on racial bal- 

ance. Seen as a drop in the overall pro- 

portion of white students at DMHS, the 

loss of 15 white Cliffs students would 

make a difference of 1.6%, seemingly a 

negligible amount. However, these 15 

white students constitute 16.0% of the 

total of 94 white students presently at 

DMHS. 

The best estimate of enrollment in the 

foreseeable future came from Dr. Tomei, 

who used three years of recent data 
which most accurately reflect current en- 

rollment trends. Projections to the year 

1990-91 indicate the loss of 15 white 

Cliffs students in that year would make 

a difference of only about 2.0% in the 

proportion of whites attending DMHS. 

Again, however, these 15 white students 

would constitute approximately 25.0% of 

the total number of jjwhite students 

projected for either a 9-12 or an 8-12 

high school. Even if one accepts Dr. 

Tomei’s figures, the impact on racial 

composition must be regarded as sub- 

stantial in a school with such a low white 

and Asian population. 

As to secondary loss, the ALJ found: 

Use by Dr. Jacobs of seven years of 

data in projecting enrollments is not im- 

proper, but presents an unduly optimistic 

picture of what may reasonably be ex- 

pected in light of most recent experience. 

[1099]



   
Furthermore, Dr. Jacobs’ dire prediction 
of wholesale abandonment by Englewood :. 

white and middle class. families of their 

own good school system is sheer specula- 

tion, unsubstantiated by adequate facts 
and based on false analogy. ‘Undoubted- 

ly some amount of “secondary” loss 
would occur if severance were granted, 

but Dr. Jacobs has not provided a .credi- 
ble basis for quantifying, that amount, 

More fundamentally, the.‘ ‘secondary” 
loss argument proves :too, much. - It 

places an impossible burden in ‘the path . 2 
of any sending district dissatisfied’ with ./ 

the quality of education its children are 
receiving. Carried to its logical absurdi- 

ty, the Commissioner of Education would 

, losses” which DMHS would suffer if sev- 
erance were approved. As that comment: 

implies, the sticking point here is not so : 

much the actual loss of a few students, ; 

but what that loss would signify. Those 

*. left behind at DMHS would perceive the 

never be able to grant’ severance from 

the worst receiving districts, for fear of ay 
creating a panic among the local inhab- 

itants. ¥ While 'a sending"'district" may 
"rightfully be held’ responsible: for“ any 

negative impact caused by the withdraw- 
al of its students, it sliould not be blamed 
if the receiving district's population does, it 
not support’ its own ‘school’ Bystem.' 1, 

With respect; to educational quality; the 
ALJ stated: 

I find that severance would fire a 

substantial negative impact on the quali- 

ty of education at DMHS, much greater 

than any material loss’ caused by the 
withdrawal of 21 Cliffs students: In ef- 
fect, any material losses would ber great- 

ly magnified by symbolic ‘losses. 

Departure of 21 students, in ‘od of ,. 

ug 

- 

‘result as an implicit message that the 
_. school is not good enough for whites and  «# 

‘Asians, but is acceptable for blacks and xe 

Feelings of isolation and in-+ = 
_ feriority engendered by such perceptions : 

: would lower the self-confidence of minor-: 

ity youngsters and be  deétrimental * to 
their ‘trust in the basic fairness of the 

Speaking as ‘a .: 
"trained psychological observer, Dr. Fine 

in 

itself, would not seriously impair the edu- 

cational program at DMHS:* Reasonable 
minds may differ as’ to” what ‘size is 

small school of under: 800 students is 

capable of sustaining a quality education- 

al program. Since the Englewood Board 

_ Hispanics. 

educational system. 

stated that the reaction of black students 

"to this litigation goes beyond mere “di- 

sappointment. ” Black students to whom . 
she spoke uniformly viewed the situation 

~ a3 “betrayal” by | the one public insti- 
tution to which they belonged. ‘Reemer- 

gence of the stigma ‘of inferiority associ- 

‘ated with’ segregated’ school.’ Systems 

would be ‘a’ regressive development for 
public education in New Jersey and 

would have serious repercussions far be- 

yond the immediate parties to this case. 
Policymakers at the state level must give 

- careful consideration to the negative im- 

'* plications severance would have for fu- 

ture race relations and social cohesive- 

ness, not only at DMHS but also in other 

+ schools throughout this state. : .. 

To make matters worse, the Cliffs stu- 

~ dents are not evenly distributed among 

~ all socioeconomic groups and ability lev- 
‘els at DMHS. ‘Rather, as Mr. Segall 

“ideal” for a high school,’ but ‘even a fe 
"sents a disproportionately large number 

confirmed, the Cliffs contingent repre- 

' "of upper income ‘and high-achieving stu- 

possesses the prerogative of reallocating =’ 

resources to preserve particular courses 

or to implement other educational priori- 

ties, it is speculative to hazard any guess 

as to which specific courses might be 

affected by the withdrawal of 21 Cliffs 
students. yi 

However, Dr.. Fine's. excellent. Stdy 

. substantiates that: “any material :losses : 

. pale by. comparison, with; the): symbolic 

[1100] 

t 

dents who help to motivate and set an 

example for economically deprived and 

+ lower-achieving students. - Loss of these 

* particular - students, therefore, would 
’* have a much greater negative impact on 

A 

educational quality than their number 
alone would suggest. 

Any charge that the Tenafly Board is 

not. meeting its, regulatory responsibility 

to encourage social learning must be re- 

jected. Proofs establish that THS, with 

  

    

= 
wk

 
"T
T 

mm
 

  
 



hy 
Cle as LUO seu “wn 

its large Asian and Jewish student popu- 

; J)ation, has a diverse enrollment in the 

Existence of the Tenafly tuition policy 

also creates social |spopressures among if sev- ol 
mment al 

   

       

      

Js ¢* areas of culture, religion and native lan- Cliffs students not to attend DMHS, 

Those. pe guage. Sufficient opportunity exists even though it is the assigned public high 

a * within the Tenafly public schools for stu- school for Cliffs residents. 

i” {hs ; 1 dents to associate and mingle with per- Factually it is immaterial to a determi- 

nite GB sow of icon ciglou hoki smn of i cu Er 
ks and: “B%" :' cure to blacks and Hivpa es i A Fo students from Cliffs might decide to go 

and in- 308 «7 gons of different gocioeconomic status is SE i DS EE os of be 

eptions : ¢ geverely limited. Commendably, the Te- . yor tituti dl Chow: it 

minor: : ;~nafly school “administration does not EE ms a iy Po nl Wi 

ital “to r, ud + leave social learning to chance alone, but a or Sonape : 3 a re 

of the os ‘plays an active role in teaching social i Sane 0 ls Snot ave fhe 

as. a <:]Jearning skills as an integral part of the 2 oa y rope Be fu oy 

r. Fine a + required curriculum and an essential ending 3 Nonpublic Schoo , ey do nave 

udents + .. function of its co-curricular activities. unchallenged constitutional aud sath. 

re “di- “Yet the finding is inescapable that tony responsibility for, supervising {he 

‘whom. . DMHS has a much richer mix of racial public education $ste 9, JA periicions 

uation® 7 and socioeconomic types which contrib- practice In the publit schools cannot he 

> insti- ute to a more stimulating environment allowed to continug unchecked simply be 

cemer- and a greater potential for exchange of £anse otherwise some parents might de- 

associ- ideas. Cliffs students who abandon "ide. to remove their children from the 

stems DMHS would be losing a very enriching public school : system. Fact-finding 

nt for '. environment which they would be unable should deliberately avoid any Inquiry into 

v' and to duplicate at the more racially and so- what choices parents might conceivably 

far be- cioeconomically homogenous THS. exercise if the state's strong policy 

3 case. The ALJ found that severance would not against segregation in public schools “i 

st give i have a substantial impact on Englewood’s properly enforced. : OUierwiss, the 

ve im- Fi financial condition or on facilities utiliza- process may be misinterpreted om saci 

oF £0: o tion, 
encouragement of flight from the public 

1esive- ;! On the subject of Tenafly’s tuition policy, So fois i artes emiyens he 10. 

other the ALJ found: bat pi ag 
: E [T]he Tenafly Board has a novel tuition Sling it of the Cliffs = Engle- 

fs stu- p 1 ' policy enacted to alleviate the adverse wood students now or prospectively at 

among effects of its own declining enrollment. THS would otherwise go to DMHS. The 

ly lev- As applied to THS, the policy has many yey facts are that THS enrolls 76 Cliffs 

Segall : characteristics of a private school place- students and 16 Englewood students 

repre- } ment, including selective entry require- who, by all rights, belong at DMHS if 

umber ments, higher academic standards and they choose to attend public school. Te- 

g stu- : payment of tuition. On its face the poli- nafly’s tuition policy seriously under- 

EH I Ce et oth Fl 
these able to afford the entry fee. In practice, a 

go PR 

would the policy has attracted a disproportion- 
i 

act on ately high number of students residing in He concluded: 

amber the neighboring communities of Cliffs Tenafly has been fishing in troubled wa- 

and Englewood. Its practical effect is to ters. Bluntly stated, the Tenafly Board 

ard te drain upper income white and Asian col- has adopted a tuition policy which has 

ibility lege-bound students from DMHS, sub- the clear effect of enticing white and 

be fo verting that school’s efforts to promote Asian students away from a nearby pub- 

with racial balance and luring many of its lic high school already experiencing ra- 

be most academically talented students. cial imbalance, thereby contributing to a 

[1101] 

  

 



  

   polarized situation. - To accomplish its 
own ends, the Tenafly Board has institut- 
-ed selective admissions requirements, . in- 
cluding what is tantamount to an income 
test since only those who can afford to 
pay are eligible for admission. . In_what 
could accurately be called “cream-skim- 
ming,” _ the Tenafly , tuition x policy 
achieves its intended purpose, by attract- 
ing more highly motivated and | aca- 
demically competent Students from _ its 
neighboring school, district, at the ex- 
pense of educational quality at DMHS. 

In order to condemn Tenafly’s beggar- 
thy-neighbor policy, it is unnecessary to 
establish that its. adoption ‘was; the  effi-. 
cient producing cause of the decline in 
the number of Cliffs students ‘at. DMHS. 
(On the contrary, the evidence here tends 
to show that the beginning of the. decline 
predated Tenafly’s. adoption. of its tuition 
policy, although the decline ‘has since, ac- 
celerated.) It is enough that the Tenafly 
Board has set in motion; a policy, which 

+ ‘exploits another district’s'weaknesses for 
its own benefit, thereby aggravating a 

: bad situation. . By the same; token, it is 
unnecessary to find, that the Tenafly 
Board was motivated by improper racial 
considerations in order. to put.achalt to 
the mischief. it has made. , Good inten- 
tions on the part of ‘a. wrongdoer (‘do not 
serve to negate the State's involvement 
in violation of ‘a constitutional; duty.” 
Norwood .v. Harrison, [418 .U.S. 455, 

- 466, 93 S.Ct. 2804, 2811, 87; L.Ed.2d 128, 
732 (1973) ].. “The existence | sof a per- 

- missible purpose cannot sustain an action 
that has an impermissible effect.”).; Ibid. 
Tenafly is hardly in. the position. of an 
innocent bystander. terhing Bhan 

He went on to characterize the Tenafly 
tuition policy as “repugnant” and “against 
the law”, and opined: JU ido Ju 

If the Commissioner were to give ‘his 
blessings to establishment of a new send- 
ing-receiving relationship ;;between : the 

- Cliffs and Tenafly Boards, it would lend 
legitimacy to an illegitimate - arrange- 
ment. In essence, it would put the offi- 

+ cial state imprimatur on what the Tenaf- 
ly Board has done.; (citation omitted). 

[1102] 

  

The ALJ found that the three municipali- 
ties are autonomous and distinct and that: 

: [T]he disadvantages of regionalization 
i-substantially outweigh the advantages. 
.Greatest weight should be given, to the 
risk of causing harm to two functioning 

-! districts without obtaining sufficient cor- 
responding benefits. The whole will not 

i necessarily be better. than the sum of its 
i parts, It is difficult to imagine forcibly 

© ‘merging two such different high schools 
» «without provoking much turmoil and ac- 
i. rimony, Call them “challenges” : or 

“short-term” adjustments if one, likes, 
.i.but nevertheless the . disadvantages  re- 
+ sulting from regionalization would divert 

+ ‘the energies of administrators and teach- 
ers from their main job: of ; educating 
+. children. Even if one accepts the Engle- 
+i"wood Board's, contention, that. the , cost 
'r estimates of the. Tenafly. witnesses: are 
'c grossly: exaggerated, the , money still 
“-'would be better spent on improving‘ edu- 
+. cational opportunities in the existing .dis- 
+ triets.’ ‘As previously indicated, the deci- 
“ sion on what is the right course of action 

must not be based on fear of local opposi- 
: tion to the law. But if the main rationale 
-t for the ‘regionalization remedy is, to, im- 
prove racial balance in both schools, then 
the Englewood Board has not put on a 

; very convincing case, that regionalization 
is the best solution. If the -desegrega- 

...i-tion literature teaches us anything, it is 
that forced merger of two districts, ‘one 
-.. predominantly white and one predomi- ;i1. nantly black, carries the greatest risk of 

-.+; White flight. he I att 
© +The ALJ also rejected a dual sending- 

i receiving relationship between; Englewood, 
> ++ Cliffs and Tenafly because it would afford 

“only Cliffs’ parents the choice of DMHS or 
+ THS, and would deny Englewood parents 
the same remedy. . .. .,., 

CH The Commissioner's Decision 
.On appeal, the Commissioner approved 

he ALJ's factfinding and his legal conclu- 
sions. In go doing, he reaffirmed the issue 
of racial balance as one of “utmost impor- 
tance to the State’: a 

[S]everance of the sending-receiving rela- 
... tionship between the Englewood Cliffs 

  

  
  
 



    

   

      

   
   

  

   

  

   

    

    

Jnicipali- 
-nd that: 
alization 

antages. 

1. to the 
ctioning 
Eent cor- 

8 Board and the City of Englewood Board 

siwould have a significant negative impact 

oon racial balance notwithstanding the 

« gmall number of white students from 
¢ Cliffs in attendance due to the unfortu- 

8%. -i.nate trend of the Cliffs parents to with- 
 r:draw their children from the Cliffs resi- 

  

  

igi oident enrollment to avoid placement |44sat 

foreibl -iDMHS. As small ne that number of 

or ir. students is, their withdrawal would in 

1 fact have a substantial negative impact 

and ae for although the loss of 15 white Cliffs 
8..1 or imstudents would lessen the overall white 
=, likes, .. percentage of students from 11.8 to 10. 

os Ie © -, 6%, that loss would reduce the number of 

3 wi : swhite students by 16.0% (15/94) present- 
or sly at DMHS and in 1990-1991 the per- 

ucating vicentage decrease would be approximate- 

Engle- | ly 25.0%. 
ne. cost Lb 

a “[TJhe Commissioner is at this juncture 
2g edu- :¢ompelled to put to rest once and for all 

ng dis- ‘the belief that because painfully few 

@ tleti- © white students remain in a school due to 

action a pattern of withdrawal by members of 

oppoSi- " the majority of the school community 

tional © there can be no significant negative im- . 

tom "pact on racial composition. Thus, not 

S,. then just the few remaining will be considered 

ton a but the pool of eligible students as well 

jeation who have withdrawn for whatever rea- 

grega- son be it to private school, parochial 

. Jie school or, in this particular case, to a 

4, in 3 public high school in another community 
oy 5. 8 ‘as well, If the State were to limit its 
Jsk of of * consideration to 3 students as the Cliffs 

That HP Board would have us do, it would be for 

ds ; 4 * all intents and purposes rewarding, not 

nding- ie combating the withdrawal that has oc- 
wood, " curred. If such were to be allowed, the 

afford ; sending district would merely have to 
HS or wait until enrollment is so devastatingly 

rents low that it could then argue that because 

so few students attend the receiving dis- 

mn trict, withdrawal can’t possibly make a 

Yoved difference. This cannot be permitted. 

shel In 1978-79 approximately 60.0% of En- 

Issue glewood = Cliffs’ students attended 

npor- DMHS. In the intervening years obvi- 
ous and dramatic decline in enrollment of 

. rela. Cliffs students at that school has oc- 

Cliffs curred for reasons which, given the cir- 

cumstances of this matter, must be at- 

  
  

ENGLEWOOD CLIFFS v. ENGLEWOOD 
Cite as 608 A.2d 914 (NJ.Super.A.D. 1992) 

N.J. 931 

tributed in large part to what is known in 

the field to be “white flight.” For the 

Commissioner at this juncture to grant 

severance to the Englewood-Englewood 

Cliffs sending-receiving relationship as a 

matter of public policy would place an 

imprimatur of acceptance by the State to 

this flight. (citations omitted). 

The Commissioner also agreed with the 

ALJ's conclusion that a substantial nega- 

tive educational impact would result from 

withdrawal: 

One need look no further than the United 

States Supreme Court decision in Brown 

-v. Topeka, [347 U.S. 483, 74 S.Ct. 686, 98 

L.Ed. 878 (1954) ] to support the ALJ's 

reliance upon evidence dealing not only 

with “material loss,” i.e, reduction in 

course offering, effect on curriculum, 

loss of teaching staff, but also an assess- 

ment of impact on the psychosocial di- 

mension of education referred to in this 

case as “symbolic loss.” Notwithstand- 

ing the fact that DMHS is not all minori- 

ty, it is, as previously stated, substantial- 

ly imbalanced racially; thus, the follow- 

ing passage from the U.S. Supreme 

Court in Brown has no less bearing in 

this matter than if DMHS were all minor- 

ity. It states: 

Segregation ... in public schools has a 

detrimental effect upon the colored 

children. The impact is greater when 

it has the sanction of the law; for the 

policy of separating the races is usual- 

ly interpreted as denoting the inferiori- 

ty of the negro group. A sense of 

inferiority affects the motivation of a 

child to learn. Segregation with the 

sanction of law, therefore, has a tend- 

ency to [retard] the educational and 

mental development of negro children 

and to ) | yssdeprive them of some of the 

benefits they would receive in a ra- 

cial[ly] integrated school system. 

[The Commissioner rejects the Cliffs 

Board’s arguments that attempt to justi- 

fy severance because DMHS was an infe- 

rior educational facility at the time the 

petition was filed and should not, there- 

fore, be held harmless from that. It is 

[1103]



   932 N.J. 

:clear: from the record that thisre icase é his 

been! heavily. immersed: in" an;effort :to 
;cast [DMHS: as anijinferior; school; not 
worthy ‘of its :students; It. is Sequally 

clear, that the record does:not Surin 

this ‘position, vol lod Sant 

As to’ the Tenafly tuition policy, the Corn. 
missioner agreed with the 'ALJ that while it 

did not violate the Wi itis. “clearly con: 
trary to: public, policy: ...and cannot, be 
allowed to stand’: esr LE 

Although the policy § is, on its Fark: not 
discriminatory and although it, was not 

adopted for improper motives, this does 

not mean that it should be ‘allowed to 
stand insofar, as the ; Cliffs ‘and ‘Engle- 

wood Boards. are. concerned, for: the 
record has made it abundantly, clear, that 
the effect of the policy has been exactly 
what the ALJ denounces, namely, to, ex- 

. skimming off and luring ‘students who 

are eligible to attend DMHS. Thus, in 
that sense it is ‘repugnant’. and a “‘beg- 

garthy-neighhor?; ipoliey; as it affects 
DMHS. $a tg 

The Commissioner; 3150 concurred. with the 
ALJ that: YER ol { R { 111 

[I]t is of no moment that Cliffs parcits 

in this matter have no intentions of send- 

ing their children. to DMHS.- Under 

Pierce v. Society of Sisters, [268 U.S. 

510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) ] 

they. are free to send. their children to 

private or parochial school and that right 

is in no way infringed upon by, this deci- 

sion. There is no right, however, to use 

N.J.S.A. 18A:38-3 as a mechanism which 
directly and substantially.contributes to 

racial ‘imbalance at DMHS, i... 

Like the ALJ, the Commissioner ‘rejected 

the dual sending-receiving: relationship in 

particularly direct terms: cb. | of Dus 

Such a relief would certainly ’serve to 

legitimize what has ‘been’ found:to be 

impermissible in this case, namely, the 

flight of 76 Cliffs students to THS which 
has contributed to the serious racial :im- 

balance at DMHS. : The:establishment. of 

a dual, sending-receiving i: relationship 

would in essence; give legal/State sanc- 

tion to such flight which must be combat- . 

[1104] 

608 ATLANTIC. REPORTER, 2d: SERIES 

+ results, neither shall a dual: sendin 

. ceiving - relationship- be, approved 
~ substantial negative impact resul 

i-lowing: Cliffs parents to select bets 
+ THS..and: DMHS would only: se 
-exacerbate on existing serious raciallime 

zibalance at. DMHS and. would imp 
+« educational quality. in thes same ma 

7'as severance. ! 

"dents has been exonerated because ed 
:.cational. 

Thus, the Commissioner again. empha 
sizes that even if legitimate educational 
..reasons are advanced for, severance ol 

    

    

   

    

   
   
   

  

   

  

    

    

      

   

  

   
    

   

   

    

   

ied: not facilitated; Just as sever. 

sending 1eciving relationship wi 

si permitted if ‘substantial. negative nn 

Further, the Cliffs Board | is’ + wrongdl 
its assertion that the flight of Cliffs stu 

reasons * for . severance ‘were 

found to: have been’ advanced by ‘the 
Cliffs .Board. As previously stated, no 
one could seriously believe that ‘racial 

prejudice and circumvention of inte 

-gration is_]yenot at play in this, case 

Englewood failed to meet the criteria enun- 

ciated in Jenkins that: STi 

.1-(1). “a single community’’ exists Between 

t (or among) the districts in question; (2) 

regionalization is ‘entirely ‘reasonable, 
feasible, and workable’ ”; .and 3) region- 

alization: can be accomplished “without 

any practical upheavals.” Jenkins, su- 

. pra, [58 N.J. at 505, 279 A.2d 619].   

i the establishment of a dual sending: ilan 

ceiving, . relationship, neither, ; will & “pol 
granted where. compelling. reasons, such: 0. gal 

,. as substantial negative impact on racial ere 

composition and educational quality, as ¥o N. 

i; herein, outweigh the educational benefits bu 
sought by the sending district in a new Re 

| relationship with another district, While S. 
finding that educational reasons existed (1 

, for the Cliffs Board's request. for sever- re 

. ance in this matter, such acknowledg- w 

ment does not, detract from the ALJ's tr 
determination and the Commissioner's af- S 

.firmance ‘that DMHS provides a broad, d 

comprehensive educational . : program A 
.., which is both thorough and efficient, and o 

capable of providing more than adequate S 
preparation for post-secondary education. C 

The Commissioner rejected .regionalization : 

as a remedy because he determined that 1 

 



   
   
   
   

    

   

  

   
   

      

   

    

   

    

     

zation 

. that 

enun- 

ween 

n; (2) 
nable, 

2gion- 
thout 

S,  SU- 
).       

Commissioner's final order was as fol- 

eit 

i ased on the significant negative im- 

on racial composition and education- 

uality that would result if the send- 

ing-receiving relationship between the 

liffs Board and the City of Englewood 

sard ‘were allowed to be severed, the 

ition for termination filed by the 

ifs Board is hereby denied. - Also de- 

d is its request to establish a dual 

ending-receiving relationship with the 

Tenafly Board as this would likewise cre- 

ate significant negative impact on racial 

balance and educational quality. 

Tt is further ordered that the Tenafly 

“Board of Education cease and desist 

from admitting to its high school on a 

tuition or other basis any students who 

are residents of either Englewood or En- 

‘glewood Cliffs. ‘While the tuition policy 

n its face is not illegal, the effect under 

ithe circumstances of this matter is to 

“exacerbate the precarious racial imba- 

‘lance at DMHS; thus, the strong State 

#: policy against discrimination and segre- 

0. gation must have primacy over any dis- 

4 'cretionary power granted to a board by 

"N.J.S.A. 18A:38-3. [Bd. of Educ. of As- 

“bury Park v. Bds. of Educ. of the Shore 

Regional High School District, 1971 

S.L.D. 221 (1971), aff'd, 1971 S.L.D. 228 

(1971) ]. The injunction does not apply to 

resident students from those districts 

who were enrolled in and attending ei- 

ther THS or eighth grade in the Tenafly 

School District on the date of the initial 

decision in this matter, April 18, 1988. 

Nor does it apply to any grade level 

other than that currently or in the future 

served by THS except that no Englewood 

or Englewood Cliffs resident student so 

attending Tenafly in a grade lower than 

those of its high school shall be allowed 

to attend THS when he/she reaches that 

level of schooling. This ruling fully dis- 

poses of the issues raised in the Cliffs 

Board's Motion for Interim Relief sub- 

mitted on behalf of eighth grade stu- 

dents who were accepted for admission 

to Tenafly High School for the 1988-89 

academic year. 

ENGLEWOOD CLIFFS v. ENGLEWOOD 

Cite as 608 A2d 914 (NJ.SuperA.D. 1992) 

N.J. 933 

_|ynMoreover, the Englewood Board's 

cross-petition for forced regionalization 

is denied for failure to demonstrate cir- 

cumstances comparable to those in the 

State Supreme Court’s decision in Jen- 

kins, supra. 

‘1. The State Board Decision 

After receiving the recommendations of 

its Legal Committee, the State Board re- 

viewed the ALJ's findings as adopted by 

the Commissioner and essentially agreed 

with the other fact finders that DMHS 

offered students a good education which 

prepared them for college and later life. 

The State Board also agreed with the ALJ 

and the Commissioner that termination of 

the sending-receiving relationship would re- 

sult in a substantial negative impact on 

racial balance and education at DMHS. 

The State Board determined that the loss 

of 21 Cliffs’ students (15 white, 4 Asian, 2 

Hispanic) would decrease the DMHS white 

population by only 1.6%. Apparently trou- 

bled by. this figure, it said: 

Viewed in isolation at that particular 

point in time, this change [a loss of 21 

Cliffs students] might not in itself consti- 

_ tute a substantial negative impact on the 

racial composition of the student popula- 

tion attending Dwight Morrow. Nor, as 

set forth in the decisions below, would 

the loss of the 21 Englewood Cliffs stu- 

dents have affected the structure or sub- 

stance of the educational program pro- 

vided by Dwight Morrow. 

Thus, were the circumstances of this 

case so limited, we might have reached a 

conclusion different than the Commis- 

sioner’'s. However, N.J.S.A. 18A:38-13 

requires that any determination with re- 

spect to a requested change in designa- 

tion must be based upon consideration of 

“all the circumstances” (emphasis add- 

ed), and, consequently, the language of 

the statute precludes us from taking 

such a narrow view. 

The State Board thus decided to approach 

the issue from a broader perspective than 

the ALJ and the Commissioner, and exam- 

ined the effect of the THS tuition program 

and the migration of Cliffs students over a 

period of years. Had Cliffs requested ter 

[1105] 

JRR—  



a 
CR

 
RI
 
E
E
 

ay 

   

  

mination in 1982, the year THS initiated its 
tuition plan’ when only 11 Cliffs’ students 
attended’ THS, 

of 21, and would have resulted in a 6.5% 
decrease in white students at | 4sDMHS as 

opposed to the 1.6% decrease of 1987- 
1988.4 © Under those circumstances, the 

State Board would not have permitted sev- 
erance - in 1982-1983 “absent a  tompelling 
reason.’ dais 1% CTIA | ey iF APL J Sl p10." 

* Although it noted that rithere [was] no 

fixed balance between racial and national 
origin groupings that, from’ an educational 

perspective, [could] be considered ideal for 

all communities” {5s State Board concluded 
that: BEDECTRE Be oF FLTVTRL ER} it i 

[Tlo sanction termination of the sending: 

receiving : * relationship ° between Engle- 

wood and Englewood Cliffs, we would be 
~ condoning a concentration’ of blacks and 

: Hispanics that is sharply* out: of balance 

with the ‘composition “of - the society in 
~ which those students must function. “See 
Booker v. Bd. of Educ. of Plainfield, 45 
N.J. -161- [212° A,2d 1] (1965). +- Further, 
the concentration ‘of : minority: ‘students 

would be: at sich: levelias “to allow 

Dwight Morrow to bé characterized as a 
minority ‘school Fwith ‘the! attendant 

“sense of stigma’ ahd résulting feeling of 

inferiority” cited by the Court in'Booker 
and upon” which the Brown i dociiion 
rests. AL Tl TS rf Bes 

HAR 

. It therefore denied Cliffs’ petition for’ sev- 
erance because of the ‘balance between 

racial and national origin groupings that 

would exist” in the'wake of termination, 

and “the negative educational implications” 

for DMHS which would necessarily follow 
severance: af SIE SUARRER TF Rd p 

[Als a matter of educational policy," we 

could not condone the level of concentra- 
BF Te a 

Cliffs argues that the State Board decision was 
based upon the misimpression that 119 Cliffs’ 
students attending DMHS in 1982 ‘were white 
when in fact only 100 (119 Xx'.84) were- white. 
One hundred is the correct figure... The State 
Board opinion indicated that if all 119 Cliffs’ 
students had left DMHS in 1982 a 6.5% decrease 
in the white student body would have resulted. 
Despite this arguably misleading reference, it is 
clear that the State Board actually used the 
correct figure in calculating the percentage de- 
crease in white DMHS students at 6. 5%: ° 

[1106] 

> 
severancé ‘from "DMHS 

would have involved 119 students''instead: 

tion of minority students attending 

  

Dwight Morrow by sanctioning : the oy 3 : 
change in designation sought here: In “SEE 

this respect, we emphasize that: 

_l4wEducational considerations. are pri- E 
:- mary in eliminating school segrega- - 

.tion. : The elimination of  racial:imba- 

* lance is not to be sought as-an end: in 
itself: but because such imbalance 

. stands as a deterrent and handicap to 

. the improvement of education for all. 

New Jersey State Board of Education, A 

Statement of Educational Policy, Never 
‘ ber 5, 1969. tiie. 

The State Board also denied the aneliditioh 

for the establishment of a dual sending- 

receiving relationship, : which would : have 
allowed Cliffs the option of DMHS or, THS, 

essentially. for the same reasons, -- Accord- 

ing to -the State Board, :merely denying 

Cliffs’ petition would not reverse or correct 

the increasing trend toward greater racial 

imbalance at DMHS. Since 1982, the year 

Tenafly initiated its tuition:program, there 

had been a steady increase in the number 

of. white Cliffs and : Englewood . students 

who chose to attend:THS rather than to 
attend. DMHS or private schools and, ac- 

cording to the State Board, :as a result of 

that trend the proportion of DMHS minori- 

ty: (black. and Hispanic) population: rose 

from 65.8% in 1982-1983 to 84.0% by 1987- 
1988. At the same, time, the THS white 

pupil population was 80.7% White and only 

1.56%.black or Hispanic. x 

* The : State Board concluded that there 

was a cause and effect to this trend. Al 

though it found that Tenafly had not initi- 

Vi vi 

.ated the tuition program with a discrimina- 

tory intent, it opined that its powers were 

not limited to cases involving evil motives. 
Acknowledging that it had no affirmative 

A 
Total DMHS students (1982): 1 128 % i 
Total white DMHS students (1982): 355 

." "Total white Cliffs Students’ at DMHS (1982): 
2100 i 

*, (1) Percent DMHS white population with 
Cliffs white students: 
355 of 1,128 = 31.5% ° 

(2) Percent DMHS white pepulition without 
100 Cliffs white students: 
255 of 1,028 = 25.0% 

(3) Percent decrease (i.e, 1) minus @= 
6.5% 

oa
 

ke 
op 

ER
Y 
E
E
 

  
  
 



  

=nding 
= the 
e In: 

re pri- 
Erega- 

:imba- 

end: in 

-alance 

cap to 

“or all. 

“ion, A 

“ovem-. 

acation 

nding- 

| . have 

~,THS, 

-ccord- 

=nying 
=orrect 

racial 

© year 

there 

mmber 

adents 

nan to 

ad, ac- 

sult of 

ninori- 

R, rose 

1987- 

white 

d only 

there 

1.. Al 

ot initi- 

-imina- 

3 were 

otives. 

mative 

355 
(1982): 

n ‘with 

without 

(2) = 

    

  
          

   

wpobligation to redesign school districts in 

order to establish racial balance, the State 

; Board reasoned that because Cliffs had 

effectively raised the issue, it must either 

, address the question of reversing the trend 

, or accept a role in perpetuating the acceler- 

ating racial imbalance by its failure to act. 

Under the circumstances, the State Board 

determined that it had a duty to institute 

. . measures designed to ensure that high 

: schoolers from Cliffs and Englewood would 

attend DMHS, their assigned school, if 

‘they attended any public high school. In 

order to discharge that duty, it restrained 

* Tenafly and all other public school districts 

from accepting Cliffs or Englewood high- 

“schoolers even though no other public 

* school districts had sought to participate in 

" this J4secase. At the same time, it directed 

Cliffs and Englewood to develop a plan to 

' encourage parents of the two districts to 

send their children to DMHS. The State 

Board felt that these mildly intrusive reme- 

3 E dies had at least the potential for efficacy. 

In reviewing the Commissioner's denial 

E. : - of Englewood’s cross-petition for compulso- 

ry regionalization or for a regionalization 

p A study, the State Board laid to rest the 

Commissioner's suggestion that regionali- 
RS un o . . 
§ zation may only be directed in cases where 

. the districts constitute a “single communi- 

ty.” Instead, it opined that, based upon 

the State Constitution and implementing 

legislation, it clearly had the power to or- 

.der multi-community regionalization where 

“necessary to vindicate our State’s policy 

against segregation, and where to do so 

. was ‘reasonable, feasible and workable’ ” 

(quoting Jenkins, supra, 58 N.J. at 505, 

279 A.2d 619). Nevertheless, the State 

Board refused to exercise its power to or- 

~ der regionalization “at this juncture.” It 

concluded that Englewood had failed to 

show that remedies short of regionalization 

would not be effective. 

. Acknowledging that it could not compel 

students to go to public as opposed to 

private schools, the State Board noted that 

had the Cliffs and Englewood students at- 

tending THS in 1987-1988 attended DMHS, 

their designated school, the DMHS student 

population would have been multi-racial 

and multi-cultural even if not equally bal- 

anced (i.e., 16.0% white, 62.0% black, 16.0% 

Hispanic and 6.0% Asian). Because such a 

student population mix might afford 

DMHS students the educational advan- 

tages of a heterogeneous student popula- 

tion, the State Board focused its remedy on 

ensuring that high schoolers from Engle- 

wood and Cliffs would attend DMHS if 

they attended any public school. As an 

example of the potential of its remedy, the 

State Board referred to the lack of evi- 

dence that Englewood and Cliffs’ parents 

were increasingly sending their high- 

school-aged children to private schools, 

which led it to conclude that a remedy 

which required those children to attend 

their designated school, if they attended 

any public high school, would likely be ef- 

fective. However, because it recognized 

that it had a respongibilitys to correct the 

growing racial imbalance at DMHS and 

that its remedies might not sufficiently im- 

prove the racial balance of DMHS in the 

long run, it directed the Commissioner to 

monitor the composition of the DMHS pupil 

population for five years and to report an- 

nually as to the effectiveness of its reme- 

dy. Cliffs appealed and Englewood c Cross- 

appealed. 

J. The Regionalization Study ” 

On June 5, 1991, the Commissioner alk 

his first report to the State Board. He 

outlined the proposals of each of the dis- 

tricts and an enhanced compromise plan. 

In so doing, he found that the situation at 

DMHS was on a downward slide: 

Perhaps the clearest indicator of the 

deterioration in the relationship between 

Cliffs and Englewood is the enrollment 

figures for Cliffs students in attendance 

at DMHS. In the 1982-83 academic 

year, 119 Cliffs students attended 

DMHS. That figure fell to: 92 for the 

1983-84 academic year, 73 for the 1984- 

85 academic year, 60*for the 1985-86 

academic year, 34 for the 1986-87 aca- 

demic year, 23 for the 1987-88 academic 

year, 13 for the 1988-89 academic year, 

16 for the 1989-90 academic year and 13 

for the 1990-91 academic year. With the 

_ exception of the negligible increase seen 

[1107]



  

JOU AN. J. 

in 1989-90, there has been a ‘steady de- 
cline in the number of’ Cliffs ‘students 
attending DMHS each year. In’ fact, 
only 8 or 9 Cliffs students are projected 

"to attend DMHS in 1991-92. '. i... 
Cliffs’ graduating eighth graders are 

obviously not attending DMHS;* In 1987, 
out of a potential class’ of 45, only 3 
students ‘went to DMHS: "In 1988 the 
respective figures‘ were’ 80 ‘and 5; "in 

~ ~1989,'42 and 2.*'In 1990 Cliffs had 38 8th 
© graders; 1 went to: DMHS. ‘This’ year 

Cliffs has 82 eighth graders in its school; 
“none have “elected’’ to ‘ matriculate ‘at  DMHS in the fall: "= Hit dN 

Significantly, thé"declinié in Cliffs' stu- . 
dent enrollment in DMHS is not attribut- 3 
able to a concomitant decrease in Cliffs’ 

, own student population.” Moreover, since 
' Cliffs’ student population* is” primarily : 
“white and Asian, it is ‘those ‘groups which 

’ are severely underrepresented at DMHS. 
The Commissioner noted the “evident re- 

luctance’, of the parties tq resolve the dis- pute over the plang Which, spoke “vol- 
umes.” He therefore: recommended a com- 
prehensive nine-point plan emphasizing ear- 
ly grade level exchanges between the dis- 
tricts as a way of increasing respect among 
the students and promoting better, under- 
standing of the DMHS programs, in order 
to lay the groundwork for increased énroll- 
ment of Cliffs’ students at: DMHS. -Be- 
cause the districts had ’been ‘unable to 
stanch the flow of‘ Cliffs’ stidents into 
placements other thari DMHS, the Commis- 
sioner also recommended that ‘a: regionali- 
zagions, study be undertaken by. a consult- 
ing firm selected by: the. Department of 
Education to work under the guidance and - 
supervision of the Bergen County. Superin- :: 
tendent of Schools. - “The regionalization 
study should explore" the potential for es- :: 
tablishing a regional school district includ- 
ing Cliffs, Englewood and Tenafly by ex- 
amining potential configurations, available 
facilities, transportation. options, racial im- 
pact, and fiscal considerations.” art 

The State Board 'accepted ‘thesé’ recom- 
mendations in its July 8, 1991’ ‘resolutions 

regionalization study to “include all poten- 
[1108] 

  

6U8 ATLANTIC REPORTER, 2d SERIES 

tial - configurations K-12 which would 
achieve the State’s policy by correcting, 

' among other things, the imbalance of racial 
and national origin groupings” ‘at’: DMHS 

“as expeditiously as possible.” 'By' our 33 
leave, Cliffs and Tenafly appeal from this 
‘resolution. ; fhe rte 

oo RE || IRL ET VI) 

+" The starting point for any discussion of 
; the issues involved in this, case is the 
"State's fundamental policy in favor of 
, equal educational opportunity. .. Since 1875, 
the New Jersey Constitution has mandated hati: ; Lg i Er i 

..: . The Legislature shall provide for the 
; Maintenance and support of a thorough 

iu, and. efficient system, of free public 
; schools for the instruction of all the chil- 

.. dren in the State between the ages of 
.. five and eighteen years, .: | TT 

-N.J. Const. art. VIII, § 4, 11.. Public edu- 
cation must. enable the least advantaged 

school child to, compete, on a. fair basis, . With , the . most, advantaged., ..Abpott . v. 
uBurke, 119 N.J. 281,-8374-75, 575 A.2d 359 
+ (1990); . Robinson. v. Cahill, 62, N.J. 478, 
613, 803 A.2d 278 (1979), cert. denied,..414 
. U.S. 976, 94 S.Ct... 292, 38 L.Ed.2d 219 
+(1973). .. Such a scheme will .not; tolerate 
r discriminatory treatment.; Over a century 
:.880, our: Legislature first. expressed this 
- policy against discrimination in public edu- 
cation. [L.1881, c. 149, codified as N.J.S.A. 
.18A:88-5.1.. Later, the delegates to our 

. constitutional convention made the policy a 
fundamental ‘right. in the. Constitution of 

1947: ih ‘ Sophie, ris, 
‘' “ _14s3No person shall be denied the enjoy- 

ment of any civil or military right, nor be 
discriminated against in‘ the exercise of 
any civil or military right, nor be segre- 

‘gated in the militia or in the public 
schools, because of religious principles, 
race, color, ancestry or national origin. 

N.J. Const. art. 1, 15. The Legislature has 
- consistently resounded this theme in enact- 
‘ments, including the ‘New Jersey Law 

¥] 

v Against Discrimination ‘which proscribes 
: * discrimination in “any kindergarten; 'pri- but modified the scope ‘of the “proposed ‘mary’ and secondary school, 

"school, 
high 

-.. or any educational institution 

  

  

 



ich would 
correcting, “<i 

ce of racial - “3 

at’ DMHS 
By' our '% 

| from’ this 

>: 

P't a irra) 

cussion ‘of 

ase is the 

favor of 

Since 1875, 

mandated 
Bi gpd E 

de for the 

- thorough 
ee public 

11 the chil- 

€ ages of 

"ublic edu- 

dvantaged 

air basis, 
4bpott . v. 
A.2d 359 
N.J. 478, 

rnied,-414 

2d.2d, 219 

L: tolerate 

B century 

ssed this 

ublic edu- 

Lt N.J.S.A. 

8 to our 

e policy a 
tution of 

he enjoy- 

1t, nor be 

ercise of 

be segre- 
ie public 

rinciples, 

al origin. 

ature has 

in enact- 

ley Law 

roscribes 

ten; ‘pri- 

.. high 
stitution 

  

  
  

   
    

  

   

    

   

  

   

  

ENGLEWOOD CLIFFS v. ENGLEWOOD N.J. 937 
Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 

under the supervision of the State Board of 

= ¢Education, or the Commissioner of Edu- 

se - cation of the State of New Jersey.” 
qN.J.S.A. 

: 1:18A:36-20; N.J.S.A. 18A:TA-4. 

10:5-5(1); see also N.J.S.A. 

The Commissioner of Education has been 

. 8. vested with broad power to deal with the 

subject,” Booker v. Bd. of Educ. of Plain- 

. Jield, 45 NJ. 161, 173-74, 212 A.2d 1 

(1965), because of the educational impor- 
tance of eradicating segregation and dis- 

_ crimination in the public schools: 

ot . 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 

3 live with one another in multi-racial and 

" ‘multi-cultural communities and the earli- 
er they do so the better. It is during 

their formative school years that firm 

- foundations may be laid for good citizen- 

... ship and broad participation in the main- 

+ stream of affairs. Recognizing this, 

+ leading educators stress the democratic 

-and educational advantages of heteroge- 
{: neous student populations and point to 

the disadvantages of homogeneous stu- 

dent populations, particularly when they 

are composed of a racial minority whose 
. separation generates feelings of inferiori- 

.. ty. [45 N.J. at 170-71, 212 A.2d 1]. 
. Booker reprised an earlier pronouncement 

. of our Supreme Court on the educational 

. importance of racial balance. 

+ Bd. of Educ. of Montclair, 42 N.J. 2317, 200 

In Morean v. 

A.2d 97 (1964), in which a lottery reassign- 

ment program the Commissioner instituted 

in place of neighborhood school assignment 
was . affirmed, the Court recognized the 
harm done to white and minority children 

by racial segregation, announcing that 

sound educational and legal principles do 

not allow for segregation “with its inherent 

, inequalities of educational opportunities 

and its withholding of the democratic and 

educational advantages of heterogeneous 
student populations.” Id. at 242-43, 200 

. A.2d 97 (citations omitted). 

_lysaThese principles were restated in Jen- 

kins v. Tp. of Morris School District. and 

Bd. of Educ., supra, where Morris Town- 

., ship applied to terminate its sending-receiv- 

. ing relationship with Morristown in order 

‘or imbalance.” 

"alized. Id. at 500, 279 A.2d 619. 

to establish its own high school. Although 

the Commissioner had the power to deny 

termination under N.J.S.A. 18A:38-13, he 

held that the statute had no application 

“‘once a school district provides its own 

high school facilities’ ” as Morris Township 

proposed to do. Jenkins, 58 N.J. at 503, 

279 A.2d 619. The Supreme Court rejected 
the Commissioner’s restriction on his au- 

thority: 

The Commissioner has been appropriate- 

ly charged with high responsibilities in 

the educational field and if he is faithful 

ly to discharge them in furtherance of 

the State’s enlightened policies he must 

have corresponding powers. - The Legis- 

lature has here granted them in broad 

terms and it would disserve the interests 
of the State to permit their administra- 

tive narrowing which in effect represents - 

not only a disavowal of power but also a 

disavowal of responsibility. [/d. at 504, 

279 A.2d 619]. 

The Court went on to recall its opinion in 

Booker where “we sympathetically applied 

our constitutional and statutory policies to- 

wards the elimination of racial segregation 

Jenkins, 68 N.J. at 496, 

279 A.2d 619. 

In Jenkins, the Court not only ruled that 2 

the Commissioner erred in refusing to take 

‘suitable steps toward preventing Morris 

Township from withdrawing its students 

from Morristown High School, but also 

held that de facto segregation, resulting 

from a concentration of minorities in partic- 

ular schools as compared to their concen- 

tration in the schools of nearby districts, 
warranted the Commissioner to move “to- 

wards effectuating a merger of the Morris 

Township and Morristown school systems.” 

58 N.J. at 504, 279 A.2d 619. More particu- 

larly, the Court held that to vindicate the 

state policy against segregation, “govern- 

mental subdivisions ... may readily be 

bridged ...” and unwilling districts region- 

In so 

doing, the Court opined “that whether or 

not the federal constitution compels action 

to eliminate or reduce de facto segregation 

in the public schools, it does not preclude 

such action by state school authorities in 
[1109]



    

Lessfurtherance of state law and state edu- - cational policies.” - Id. at 498-99, 279 A.2d 619 (citations omitted). ‘It is this “long- standing” * and : “vigorous” ' state. policy (Booker, supra, 45 N.J. at 178, 212 A.2d 1) 
which provides the backdrop for our: legal analysis. “0 chili ub eg bod ree 

t nen GBT CY 8h pes 
THRE Winn idus oe 

[1] This is an appeal from the decision 
of a state administrative agency. \Through 
the comprehensive opinions of the ALJ, the Commissioner and the State ‘Board, the is- ‘Sues presented here have been thoroughly explored by the officials in. whom authority presumption of validity ‘where, as’ here, it 

, has been given discretion to determine the ; Specialized procedures for its tasks. Van 

over our educational system reposes. ; See - NJS.A 18A:4-] to 40; «N.J.S.A., 18A:6- 
9, :6-25 to -28;.N.JS. A. 52:14F-1 to -11. See also Hinfey v. Matawan, Regional Bd. 
of Educ., 77,N.J. b14,, 525, 891;.4.2d 899 
(1978); In re Tenure Hearing of Tyler, 236 
N.J.Super. 478, 484-85, 566 4,2d.229 (App. 
Div.1989), certif. denied, 121 N.J. 615, 583 
A.2d 815 (1990); Bd. of Educ, of Merchant- ville v.. Bd. of Educ, of Pennsauken, 204 N.J.Super. 508, 512-183, 499 A,2d 523 (App. Div.1985); Theodore v. Dover Bd. of Educ. 183, N.J Super. 407, 412-18, 444 A.2d 60 (App.Div.1982); * Piscataway. Tp. "Bd. of Educ. v. Burke, 158 N.J.Super. 436, 441, 386 A.2d 439 (App.Div.), appeal dismissed, 79 NJ. 478, 401+'4.2d “230 (1978). Like "other administrative" decisions, - this ‘one is entitled to our’ deference: : ial 
In passing on an administrative agen- 

cy’s exercise of statutorily-delegated re- 
‘sponsibility, we accord it a strong pre- : LE tt, ay 

[3] It goes without saying that an agen- 
viey’s factual  determinationg are: presump- 
i tively correct and will not be upset absent a 
'“’showing that they are arbitrary; capricious 

sumption of reasonableness. We may 
not substitute’ our ‘judgment for ‘ the 
wisdom of agency action if that action is 
statutorily authorized and not ‘arbitrary or unreasonable. - As- long’ as the’ action is within the fair contemplation of “the 
enabling statute, that action must be ac- 

ularity. If there is any fair argument in 
support of the agency’s action or any 
reasonable ground for difference of opin- 
ion among intelligent and conscientious - 
officials, “the decision'is conclusively leg- 

_islative, and will not be disturbed ‘unless patently corrupt, arbitrary ‘or, illegal.” 

[1110] 

‘this case, an even stronger presumption 
of reasonableness exists. - [IFA Ins. Co. : 
"0. New Jersey Dep't of Ins., 195 N.J.Su- per. 200, 207-08, 478 A.2d 1203 (App. 

Div.), certif denied, 99 N.J.- 218, 491 
~A.2d 712 (1984) (quoting Flanagan v. 
Civil: Service Dep't, 29 N.J.. 1, 12, 148 

+ 4.2d 14 (1959)) (citations omitted) ].:. 
_|gpaSee also In re Tenure Hearing of Tyler, Supra, 236 N.J.Super. at 484, 566 A.2d 229; 
"Bd. of Educ. of Merchantville, supra, 204 N.J.Super. at 512, 499 4.2d 523. ‘An agen- _cy’s exercise of “statutorily delegated re- sponsibility is accorded an even stronger 

. Dalen v. Washington Tp, 120 N.J. 234, , 244-45, 576 A.2d 819 (1990). 
+ [2] ‘It is true that, where an issue is purely ‘one : of law, we normally .do. not 
«accord the same deference to the agency 
* determination. Parsippany-Troy : Hills 
"Educ. Ass'n v. Bd. of Educ. of Parsippa- 
'ny-Troy Hills Tp. 188 N.J.Super. ..161, 
165, 467 A.2d 15 (App.Div.), certif denied, "94 N.J. 5217, 468 A.2d 182 (1983). However, 

it is equally true that where an agency is 
* responsible. for enforcing a statute, its in- 
terpretation will “be accorded considerable 

“weight” on appeal. - Bd. of Educ. of Mer- {s chantville, supra, 204‘ N.J.Super.: at 512, 7499 A.2d 523 (citing Service - Armament 
“Co. wv. Hyland, 70 N.J. 550, 561, 362 4.2d 

13 (1976)). cB 7 BL LL Ra 

oi, 7% 

‘or unreasonable. Bd. of Educ. of Branch- 
“burg v. Bd, of Educ. of Somerville, 173 
* N.J.Super. 268, 274, 414° A.2d 259 (App. corded a presumption of validity and reg- Div.1980) (citing Thomas v. Bd. of Educ. of “Morris Tp.; 89 N.J. Super. 327,832, 215 
“A.2d 85 (App.Div.1965), aff'd, 46 N.J. 581, 
218 A.2d 630 (1966)). Such determinations 

- must be accepted by us:if . supported by ‘substantial : credible evidence. : : Matter of "Warren, 117 N.J. 295, 296-97, 566 '4.2d 534 
(1989); .In Re Petition of Hackensack Wa- Where special expertise is required,’as in 1'/ifer Co., 249 N.J.Super. 164,174,592 4.24 

  
rc
 

y
o
r
e
 

  
 



‘esumption 

4 Ins. Co. : 

I5 N.J.Su- 
203 (App. 

- 218, 491 
nagan v. 
, 12, 148 
bed) 

' of Tyler, 
A:2d 229; 
upra, 204 
An agen- 
gated re- 

stronger 
3" here, it 
mine the 
ks. . Van 

NJ. 234, 

issue is 

.do. not 

agency 

y + Hills 

A78ippa- 
er... 161, 

denied, 

[owever, 

zency is 

3, its in- 

iderable 

of Mer- 
at 512, 

nament 

62 A4.2d 

1 

n agen- 

esump- 

bsent a 

ricious 

'ranch- 

le, 173 

(App. 
duc. of 

2, 215 

J. 581, 

1ations 

led by 
ter of 

2d 534 

k- Wa- 

2 A.2d 

  

  

rv
 

na
e 

  

Asa taa 

+260 (App.Div.1991); Thomas v. Bd. of 

~ Educ. of Morris Tp., supra, 89 N.J.Super. 

at 332, 215 4.2d 35. 

[4,5] In light of these standards, and 

‘upon a complete |ysreview of this record,’ 
‘we have concluded that the determinations 

‘of the State Board that severance should 

be denied because it would result in a sub- 

. stantial negative impact at DMHS; that a 

, dual sending-receiving relationship should 
be denied for the same reason; that across 
the board injunctions were required to re- 

.. verse the trend of accelerating imbalance 

: at DMHS; and that a regionalization study 

should be implemented, were based upon 

“sufficient credible evidence on the record 

as a whole” and should be affirmed. R. 

2:11-3(e)(1)(D); see also Thomas v. Bd. of 

Educ. of Morris Tp., supra, 89 N.J Super. 

at 332, 215 A.2d 35. 

Vv 

[6] Pursuant to N.J.S.A. 18A:38-11, 

“[t]he board of education of every school 

“district which lacks high school facilities 

within the district ... shall designate a 

high school or high schools ..."” outside of 

the district for the education of its high 

school age pupils. This “sending-receiving 

relationship” is a |scontract between the 

~ two districts for educational services to be 
provided in exchange for a fixed tuition 

payment. See N.J.S.A. 18A:38-8. Unlike 
an ordinary contract, however, termination 

of a sending-receiving relationship is sub- 

ject, not just to the desires of the parties, 

but also to the approval of the Commission- 

er of Education: 

5. Englewood asserts that the State Board erred 
by failing to supplement the record with min- 
utes of a Cliffs Board meeting at which there - 
was “disclosure” that Cliffs’ attempt to sever the 
sending-receiving relationship was racially moti- 
vated. According to two local newspaper arti- 
cles from July 1988, at a closed meeting the 
president of the Cliffs Board of Education stated 
that this lawsuit was unwinnable and that 
“[Cliffs] will have lost the case, and it is a racial 
issue.” Because it claims that the minutes are, 

in effect, already public, Englewood argues that 
there is no cause for not fully disclosing them 
and making them part of this record. Neither 
the State Board's opinion nor Englewood’s brief 
refer to this issue as having been raised previ- 
ously and, in fact, although Englewood cites R. 

Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 
, VU wv 

No such designation of a high school 

or high schools and no such allocation or 

apportionment of pupils thereto, hereto- 

fore or hereafter made pursuant to law, 

. shall be changed or withdrawn, nor shall 

a district having such a designated high 

school refuse to continue to receive high 

school pupils from such sending district 

except upon application made to and ap- 

proved by the commissioner.... 
[N.J.S.A. 18A:38-13]. 

The point of requiring the Commissioner to 

approve severance is obvious: to avoid a 

situation in which a long-standing sending- 

receiving relationship could be terminated 

at the whim of one district to the detriment 

of the other. Implicit in the statute is a 

stability principle—a recognition of the fact 

that, in engaging over the long-term in a 

sending-receiving relationship, school dis- 

tricts achieve something of an angle of 
repose which should not lightly be placed 

into disequilibrium, at least not without an 

objective review of the consequences of the 

proposed action. It is the Commissioner 

who brings to bear his expertise in evaluat- 

ing a severance request. 

We have previously recognized the sig- 

nificance of the Commissioner’s role in a 

sending-receiving context in our decision in 

Bd. of Educ. of Merchantville, supra. 

That case involved a sending-receiving ter- 

mination request which the Commissioner 

and the State Board denied. 204 N.J.Su- 

per. at 510-11, 499 4.2d 523. In reviewing 

the termination, of a fixed-term sending- 

- receiving relationship, pursuant to N.J.S.A. 

2:5-5(b), it has apparently made no formal mo- 
tion to supplement the record, thus rendering 
this issue improperly before us on this appeal. 
Even if we were to reach the merits, we would 
decide it against Englewood. According to the 
news article, Cliffs’ president said that this “is a 
racial issue.” That declaration is no more “an 
admission” of Cliffs’ racial motivation than it is 
a comment on the public perception of the case. 
More importantly, Englewood does not claim 
that the minutes were voluntarily disclosed, and 
Cliffs has set forth credible and uncontradicted 
evidence that the statement, if made, was made 

during a litigation strategy session with its attor- 
ney and was therefore privileged. See N.J.S.A. 
10:4-12 to -13. There is thus no warrant for 
supplementation. 

[1111]



    

    

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5 LgseAlthough the Legislature” amended ‘the 

PL 
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Bran © «vy, we broadly interpreted the Commissioner's supervisory role: :.. 
Reading NJ.S 4. “18A:88-18 ‘in the con- text of the Commissioner's ‘expansive powers satisfies us’ that it was intended to provide the Commissioner with contin- uous supervisory powers over: all’ send- ing-receiving relationships, whether: cre- ated by fixed-term ‘ contracts or-not, to 

(1950). In 

lature omi 

and sufficient reason.. [204- N.J.Super. at 513, 499 A4.2d 523). derail el 

: FP board Statute after; Merchantville, the ;amend- 2 : ment in no way restricted the important ne 

 Sion-making process. ; vololonivg  Mlidaras. Statement accompanying ' “Assembly ' In assessing whether {o grant severance, “Bill No. the Commissioner is calle upon to consider . ¥ . the legislative mandate of N.J.S,A. 184.38 The Assembly Education Committee State- ML a, Cp Fe mn mont accompanying the bill points out that Prior to submitting an application, the  ;the old law “does not specify the criteria ’ district seeking to sever. the Felationship I Which the commissioner should consider in shall. prepare andy submit a feasibility . making a Judgment” J s00n severance, but 

18; ROR Wd ninja 

+ study, considering, the, educational ‘and . that the ne financial implications for the sending and ; many facto receiving districts, the impact on the . tion of the quality of education received by pupils in .- Pact of severance. each of the districts, and the effect. on . Committee the racial composition of the pupil popu- 

* son” standard and substituted the “no sub- stantial negative impact”, rule. 
* to the statement of the amendment’s spon-- sor, its purpose was TA 

Provide stability to such relationships by ;. , [Modify the standard lo be ap P Tied ‘by ; 
Permitting their dissolution only for good. the Commissioner of Education when bid “local board of education applies’ for per- © “' mission to alter or terminate a sending- “ "receiving: ‘ relationship“ ‘with "another 

. “The commissioner is required ° to grant the requested change in desig- Door ot he Conmigo a 1G Pn 0 location 0 stan eg 

  

district. Bd. of Educ. of Haworth v: Bg of ni - Educ. of Dumont, 1950-1951 S.L.D. 42,43. 
amending the statute, the Legis- 

tted the “good and sufficient rea-: Y 

According - 

will result. [Assembly 

2072, L.1986, c. 166’ (1986) ] 

Ww law requires that he consider 
rs, including the racial composi- 
schools and the educational jm- 

Assembly Education 
Statement accompanying As- sembly Bill No. 2073, 1.1986, ¢. 156 (1986). lation of each of the districts: The com- In prior decisions, the State Board ‘has held missioner shall make equitable: determi. . that the amended statute ‘does not repre- nations based upon “consideration of: all, Sent a departure from the legislative poli- the circumstances; ::including., the ! edu-.. cies embodied in the statutory Scheme cational and financial implications for. the. . Prior to. [the] amendment, .,. but rather 

affected districts, the impact on the qual- gives further definition to the balance be- ity of education received. by: pupils, and . tween thos the effect on the racial ,composition of. Cranbury v. Bd, - the pupil population of the districts. The ." 1987 S.L.D, 

substantial negative .impact Will result. therefrom, 
14ST Yaa yl ESD LS 

e policies.” Bd, of Educ. of g 
of Educ. of Lawrence, 

1, 24 (1987), appeal dismissed, - commissioner shall grant. the.requested .,, No. A-4253-86 (App.Div. April 28, 1988) change in designation or allocation if no (citation omitted). . ~, ° 
'. The spin Cliffs places on the amendment 

- i8 that it was designed to make termination Prior to 1986, NJ.SAS 18A:38-18 provid- “of a sending-receiving relationship “eagier” ed that a sending-receiving relationship to obtain; i could only be Severed upon a showing of -- erred in not 

t argues that the State Board 
according it the benefit of this “good and’sufficient reason” with the bur- :: amelioration. + The source of ‘this interpre- den of proof 8quarely on the petitioning tation is ‘apparently a ‘newspaper - article 6. The Commissioner's decision is subject to ap- Furs peal to the State Board of Education ‘which “may in its discretion affirm, reverse, revise or 

[1112] 

modify the determination appealed from.” NISA. 18A38-14. ty 

    

  

    

  

WEES, 

I PRE 

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= 3 

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v: Bd. of ~ 
D. 42,.483 : 
he Legis- : 

ient rea-: 
“no sub- 
ccording 
t's spon- + 

lied ‘by = ¢ 
when a i 7% 

for per-': 
iending- 
another 

equired ° 

2 desig- 
ial neg- 
sembly 

sembly ' 

1986) ]. 
State- 

ut that 

*riteria 
ider in 
e, but 
nsider 
mposi- 
al im- 

“ation 

2g As- 

1986). 

8 held 

repre- 
> poli- 

9. 
ather 

e be- 
c. of 
ence, 
8sed, 

1988) 

ment 

ation - 1 

sier’’ 

ard 

this 

"pre- 

ticle 

Im. 

   

   
    

   
    
    
    

     

    
   

  

    

    
  

: enactment: 

«fits its needs.” [Pat R. Gilbert, New 

Law Enables Schools to End ‘Sending’ 

is Pacts, Trenton Times, November 25, 

.+.:1986 (quoting the legislative sponsor) ]. 

#' We see a distinct difference between the 

»-original law and the amended version. Un- 

Jider the former, the Commissioner could 

“reject severance if he was not satisfied that 

- -.there were ‘good and sufficient reason[s]”’ 

to justify it. . The amendment provides that 
:-n'he “shall” grant severance “if no substan- - 

ttial negative impact will result.” We can 

; 0.conceive of circumstances (for example, 

where a petitioning district has weak rea- 

sons for severance but where no substan- 

= ,. tial negative impact will occur) in which the 

"new version of the statute would constitute 

However, whether the new law is or is not 
“easier” essentially begs the question 

presented here—was it arbitrary or unrea- 
" sonable for the State Board to conclude 
that the grant of severance would result in 

"a substantial negative impact on DMHS? 

Cliffs argues that it_|;was, contending 

* that, other than the negative racial impact 

on DMHS, there are no additional negative 

impacts presented by termination, and that 
if the State Board had “weighed” the posi- 
tive impacts of severance against the single 

negative racial impact, it would have con- 

“cluded that the statutory burden was met. 
This argument is wide of the mark in sev- 

eral respects. 

First, Cliffs’ vision of a positive impact is 

quite different from our own. It claims, 

for example, that two positive impacts of 

severance are the forestalled deterioration 

of the Cliffs’ upper school from which 

Cliffs’ parents have historically removed 
their children to assure them places in al- 

ternatives to DMHS, and the availability to 

Cliffs’ students of the “superior academic 

environment” of THS. Each of these so- 

called affirmatives is exclusively beneficial 

to Cliffs and fails to give a shred of consid- 

eration to the effect of severance on the 

students at DMHS. More importantly, the 

a lesser burden on the movant than the old. 

vil 

Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 

#.4.published contemporaneously with the bill's THS formula for educational success is to 

segregate a group of homogeneous stu- 

dents from relatively affluent families in a. 

school run completely by white teachers, 

which stresses college preparation and does 

not even provide a full spectrum of special 

education programs for the students who 

require them. This scheme utterly fails to 

account for the considerable value which 

we have long placed on social and edu- 

cational development in an atmosphere in 

which children with differences learn. to 

celebrate and not fear them. Booker, su- 

pra, 45 N.J. at 170, 212 A.2d 1. THS, with 

its minuscule black and Hispanic popula- 

tion, is not a realistic forum for interaction 

among the children of different races. On 

the other hand, DMHS, which every fact- 

finder has held to be a very good school, 

provides its education within such a hetero- 

geneous framework. Thus Cliffs’ positive 

impacts claim is problematic at best. 

[71 Moreover, even if we were to con- 

cede Cliffs’ vision of what is positive, the 

result would be the same. Whatever dif- 

ferences exist between the old law and the 

new, one thing is certain—N.J.S.A. 18A:38- 

13 is not a traditional balancing statute.qs2 

See Bd. of Educ. of Belmar v. Bd. of 

Educ. of Asbury Park, 1989 S.L.D. 1, 96 

(1989); Bd. of Educ. of Absecon v. Bd. of 

Educ. of Pleasantville, 1988 S.L.D. 14, 45 

(1988); Bd. of Educ. of Cranbury v. Bd. of 

Educ. of Lawrence, supra, 1985 S.L.D. at 

17. The act lays out a series of factors to 

be considered by the Commissioner as part 

of a feasibility study including: the edu- 

cational (offerings) and financial (budget- 

ary) implications for both districts, the im- 

pact on the quality of education in both 

districts, and the effect on the racial com- 

position of the pupil population in both 

districts. The Commissioner's responsibili- 

ty is to reach an “equitable” determina- 

tion—one that is fair to both districts— 

keeping in mind his responsibility as the 

ultimate educational authority in the State. 

See N.J.S.A. 18A:38-13. To be sure, the 

Commissioner may engage in weighing and 

balancing within each of the stated catego- 
ries. For example, he may assess whether 

financial losses outweigh financial gains in 

[1113]



   

1 i 

IT, 

is improved in one district: more than it is under review. See, e.g., In re Bd. of Edu negatively affected in'the other. :However, :. of Milltown to Terminate its Sending he is not free to weigh the overall positive .: Receiving Relationship with the.Bd. o and negative impacts of severance orto Educ. of New Brunswick, 1976 S.L.D. 854 ' determine that a substantial ‘negative .im- ' aff'd, 1976 S.L.D. 863, appeal dismissed, : - pact he has found in any -category'is “out- + No. A-2456-T4 (App.Div.. December 2: weighed” by a positive impact in another. +1976). There was certainly no reason for it - The reason for this is that the'legislatively {to do so in this case in ‘which the<'fac prescribed considerations do not exist in a + relied on by the State Board were not “his vacuum but are inextricably bound up with tory” at all, but reality—that Cliffs began - ‘the question of what kind .of an education 1'its withdrawal from DMHS long before, i 

  

"impact in one category ‘necessarily impli- “Indeed, .if .wet were to: accept - Cliffs’.: ap- cates an overall educational ' quality issue. J.proach to the issue, a district would. be The focus of the Commissioner's inquiry is rewarded for quiet complicity in long-term “whether a substantial negative impact ex- « white flight. with a payoff for delayed: dis- [ists ‘at all; if it does, ‘severance is tobe .. covery: the inability. of ‘the State:Board to denied. - This is the way the:Commissioner - consider what had already occurred: in for- and thei State Board: have previously inter- +mulating its remedy. » iit. om 0d wives © preted the statuté. ‘Bd.vof" Edueicof-As- » 
bury Park, supra:1989 :S.L:D|"at 96): Bd. 3 
of Educ. of Absecon, supra, 1988 S.L,D. at .b 
45. There is simply no place mn this’ analy- "is unassailable. In ‘reaching this conelu- sis for the weighing of positive Impacts Son’ the State Board considered the cumu- Ces 2 substantial Wegdlivé fmpact has Spud. creer of Cllr failure since 1982 to been found, | See Bd. of Educ. of Asbury “encourage its ‘students to attend DMHS; Park, supra, 1989 S.L.D. at 9-10, (ALJ), 96 *' the fact that if severance had been sought '(Commissioner). Agha in a ng TOT 

[9] Having taken the long ‘view, "the 

impact was substantial, as a matter of fact, 

Lie and or det ww on 1982 when the real exodus began, | it .* Lyss(8] Cliffs alternatively ; argues. that ys Would have resulted in a 6.56% reduction in the State Board could not reasonably have ,, the white DMHS population: ‘the succor :concluded that a substantial; negative 'im-' which Cliffs received from the Tenafly tui- « pact would result from:severance because ; tion policy which “lured” and “enticed” a this record shows that a grant of severance .» disproportionate number of high achieving would have, caused no more. than a 1.1% _ white and Asian Cliffs students away from reduction in the DMHS white population.at | DMHS; the direct relationship of that poli- the time of the application. : Qne prong of ., cy to the accelerated decline in white enroll- this argument is that, the State Board . ment at DMHS; the concentration of should not have reached back into the rela- blacks and Hispanics at DMHS which tionship between the parties in assessing * would exist in the wake Of severance, a Cliffs’ application. Not 80. 00 uly oi, concentration “sharply out "of balance” Although the State Board was not.com- i With the composition of the society in which 
pelled to approach the case from ithis per- ;i;the students would function; ‘and the feel- spective, it was well within its discretion in },,in88 of anger and inferiority , Which would doing so. What occurred prior to the actu- .;,Pe engendered in those who, remained. In al petition for: severance: provided'a per- sence, the State Board, considered the spective which the State Board legitimately combination of ‘long-term actual loss. and viewed as critical to'an" understanding. of .... Symbolic loss as a substantial negative edu- the present state of affairs-and to an as- '. cational impact on the students at DMHS. sessment of the effects of withdrawal: In [10]. Cliffs contends that, taken togeth- deciding cases in the past, the State Board ver, these factors do “not give. rise to a has never ignored ' circumstances which  :'substantial negative -impact.: This view [1114] 

a proposed move or whether racial balance have contributed materially to a situation : 

    

     

  

State Board’s conclusion that the negative 

  
  

      

   

 



  

    
=onclu- 
cumu- 

982 to 

DMHS; 
sought 
mn, | oait 

Zion in 

succor 

Ty tui- 

-ed” a 

Seving 
- from 

t poli- 

=2nroll- 

on of 

‘which 

ce, a 
ance” 

which 

> feel- 

would 
1. . In 

d the 

  

   
   

  

     
       

   

        

  

ofirst overlooks the mandate of N.J.S.A. 

+18A:38-13 that racial balance is an impor- 

tant consideration in evaluating the poten- 

b.tial destabilizing effect of severance. In- 

s3iudeed, that language was engrafted onto the 
tt statute specifically. to avoid withdrawals 

for. discriminatory. purposes which would § 
i 
  

= have the effect of recreating segregated 

+.8chool systems with their inherent inequali- 

= ty of educational opportunity. 

“+ More to the point is the interrelationship 

"between racial balance and education—a 

* “connection Cliffs persists in omitting from 
« "its reasoning. These are not isolated 

“factors. They are different sides of the 

“same coin. Our Supreme Court long ago 

"Booker, cases decided in the afterglow of 
A “Brown v. Bd. of Educ., 347 U.S. 483, 14 

“S.Ct. 686, 98 L.Ed. 878 (1954). A genera- 
' tion later, the promise of Brown remains 

only partially fulfilled and the optimism it 

engendered has been sorely tested. In 

these circumstances, the principle enunciat- 

ed in Morean and Booker is more hallowed 

than ever: when children of all races learn 

"to live with and respect each other in school 

at an early age, education is  |4esenhanced 

and the groundwork is laid for future par- 

ou 

have been overwhelmed by the far-reaching 

and long-term negative impact on DMHS. 

The same reasoning applies to the State 

Board's denial of the creation of a dual 

sending-receiving relationship between En- 

glewood, Cliffs, and Tenafly which would 

have had the same effect as severance.’ 

VI 

[15] We turn next to Cliffs’ contention 

that the State Board's denial of severance 

violated its rights under Section 1 of the 

Fourteenth Amendment to the United 

. States Constitution, which provides that: 

% “'recognized this principle in Morean and 

ticipation of all in the “mainstream” of 
human affairs. 

[11-14] On this backdrop, Cliffs’ sug- 

gestion that the only negative impact of 

severance was insubstantial is plainly 

wrong. Indeed, the projected negative im- 

pact of severance on DMHS was so sub- 

stantial that, even if we were to concede 

~ Cliffs’ characterization of N.J.S.A. 18A:38- 
13 as a balancing statute, the puny positive 

impacts projected by Cliffs would clearly 

7. Cliffs also asserts that the State Board was 
wrong in applying the 1980 census figures with- 
out considering the potential pool of white stu- 
dents from Englewood who were not attending 
DMHS, their designated high school, but who 

. were going to private schools. It urges that the 
State Board's decision fails to address the root 
cause of declining white enrollment at DMHS— 
Englewood whites’ rejection of their own desig- 
nated high school—and, in fact, punishes white 

Cliffs’ parents for the actions of their Engle- 
wood counterparts. Cliffs contends that when 
the total potential white student pool from En- 

- glewood is taken into consideration, the per- 
.. centage decline in white enrollment due to a 

_l4ssNo State shall make or enforce any 

law which shall abridge the privileges or 

immunities of citizens of the United 

States; nor shall any State deprive any 

person of life, liberty, or property, with- 

out due process of law; nor deny to any 
person within its jurisdiction the equal 

protection of the laws. [U.S. Const. 

" amend XIV, § 1]. 

The Fourteenth Amendment proscribes dis- 

crimination on the basis of race and ex- 

tends to all state action which distinguishes 

between its citizens solely in racial terms. 

See, e.g., City of Richmond v. J. A. Croson 

Co., 488 U.S. 469, 492-95, 109 S.Ct. 706, 
720-21, 102 L.Ed.2d 854, 880-82 (1989); 

Davis v. City and County of San Francis- 

co, 890 F.2d 1438, 1445 (9th Cir.1989), cert. 

denied, — U.S. ——, 111 S.Ct. 248, 112 

L.Ed2d 206 (1990). The parties here 

sharply disagree both as to the character- 

ization of the State Board action and the 

level of judicial scrutiny to be applied un- 

der the Fourteenth Amendment. This is 

important because the nature of a legisla- 

hypothetical Cliffs withdrawal in 1982 could 
have been no greater than 4.0%. The State 
Board did not consider those Englewood stu- 
dents who attended private schools because 

. NJ.S.A. 18A:38-13 only applies to public school 
students and the Commissioner's authority is 
solely applicable to public education and the 
public school system. N.J.S.A. 18A:4-21 to -40. 
Because Englewood parents, like all parents, are 
free to send their children to private schools, 
Pierce v. Society of Sisters, 268 U.S. 510, 534-36, 

45 S.Ct. 571, 573-74, 69 L.Ed. 1070, 1077-78 

(1925), the State Board properly confined its 

analysis to those students over which it had 
authority and control. 

[1115]



  

   tive classification’ directs the" standard of 
review. State v: Bulu, 284 N.J. Super. 331, 
343, 560 '4.2d '1250 (App:Divi1989). + 'i 
ALAR TEAR ME SOE LIE 1 ORY TTR [16-18] ; Regulation, of ; a funda ental 

. right or disparate treatment of a guspect M 4 

- class is subject to strict scrutiny, meaning 
that it must further a compelling state 
interest and there must be no less-restric- 
tive means to accomplish that goal. City 
of Clebuine v. Cleburne. Living Center, 
473 U.S. 482, 440, 105.S.Ct, :3249,,8254, 87 re 

+ L.Ed.2d 818, 320.,.(1986);4- Massachusetts 
Bd. of Rétirement v. Murgia, 427.1.S. 807, 
811-18,.96 S.Ct. 2562, 1266667, 49 L, Ed.2d 

620, 524-26 (1976);,.Sapn Antonio Indepen- 
. dent School. District, vapRodriguez, 411 
US. 1, 16+17,. 93. §, Ct, 1278,,,1287, 36 L.Ed.2d 16,:38.(1973);; Brown v., City of Newark, 118 N.J., 565; 578; 653. 4.2d, 125 
(1989);. Barone v,.Depn’t of Human Servic- 

es, 107.N.J.. 355,:365,:626.4,2d 1055 (1987) 
* (citing Graham v; Richardson,-403. U.S, 
365, 91 S.Ct. 1848, 29 .L.Ed.2d 534 (1971); 

State, v, Bulu, supra, 234 N.J Super, at 348-44, 560’ 4.24 1250, Regulation which .. involves a. semi-suspect class or, which indi- 
rectly affects a fundamental right, is’ sub- 
ject to an intermediate- level. of scrutiny, 
must. further an important, governmental 

interest and be substantially reJated to the 
achievement of that objective, - City of Cle- 
burne v. Cleburne Living, | i Center, su- 
pra, 473 U.S. at 441, 105 S.Ct. at, 3255, 87 
L.Ed.2d at 821; Craig.v. Boren, 429 U.S. 
190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 
407 (1976); Greenberg v. Kimmelman, 99 
N.J. 552, 565, 494 A.2d 294 (1985); ‘State v. 
Bulu, supra, 234 N.J.Super. at 344, 560 
A.2d 1250. In all other cases, the rational 

* basis test applies, requiring only that there 
be some rational: connection ‘between the 
state action and the legitimate state’ inter- 
est sought to be achieved,,, See Massachu- 

- setts Bd.. of Retirement v> Murgia, supra, 
‘427 US. at 312, 96 S,Ct." at“ 2566, 49 

[191 Cliffs naturally argues that strict: 
scrutiny is required because’ it views the x 

. - State Board's decision as “based upon‘the “<3 
-race of the Cliffs’ student population and” 
nothing else.” According to. Cliffs, what 

< ‘the State Board has done here is to f‘seize” 
‘children from:across district lines ‘on the 3 
* basis of their race to avoid racial imbalance 
‘at DMHS. Such a characterization ‘may 
apply to some case, but not the one before 

, selves, What is at issue here js a long-. 
standing legal relationship between Cliffs 

1. of any classification, let: alone a suspect 
racial one. GRE Ya Hira 

ol 1468120] What is at issue here is an ad- 
;. ministrative adjudication based upon. legis- 
.-latively mandated considerations including 

the intertwined concepts of the quality of 
. education and the racial composition of the 
schools in question. Is it race conscious as 
Cliffs contends? The answer is yes. Is 

.. race consciousness ‘prohibited? The an- 
+8wer is no.” It is only the per se use of race 

as a determinant which creates a classifica- 
“tion subject to strict ‘scrutiny under the 
Fourteenth Amendment. Porcelli v. Titus, 
-.481.F.2d 1254, 1257 (3d Cir.1970), cert. de- 
«nied, 402.U.S.: 944, 91. S.Ct. 1612, 29 
“'LEd.2d 112 (1971). i The ‘United ‘ States L.Ed.2d at, 524;. Drews Associates of New * Constitution does not prohibit states from . Jersey, LP v. Travisqno,.122 N,J.. 249, 258- 

-+ 59, 584 A.2d 807 (1991); Barone v. Dep't of 
Human, Services, supra, 107 N.J..at 364- 
65,626 A.2d 1065, (citing Dandridge v,' 

- Williams, 397 U.S..471, 90 S.Ct.:11568, 25. L.Ed.2d 491 (1970). #:: br. =VHaadan 

[1116] 

++ taking race into account in educational deci- 
gions. -. Wygant v.' Jackson Bd. of Educ., 
476 U.S. 267,106 S.Ct. 1842, 90° L.Ed.2d 
260 (1986). Our Supreme Court so conclud- 
..ed in Morean v. Bd. of Educ. of Montclair, 

- Supra, which is controlling here, and which 

  
  

  

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‘States 

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onclud- 

ntclair, 
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:found ‘“‘no substance to the petitioners’ con- 

.tention that since its plan of relocation had 

ssome racial motivation it was violative of 

the fourteenth amendment.” 42 N.J. at 

1243, 200 A.2d 97. See also Schults v. Bd. 

‘of Educ. of Teaneck, 86 N.J.Super. 29, 40- 

141, 205 A.2d 762 (App.Div.1964), affd, 45 
NJ. 2, 210 A.2d 762 (1965). 

Cliffs’ reliance on City of Richmond v. 
JA. Croson Co., supra, Wygant, supra, 

and Regents of the University of Califor- 

nia v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 

67 L.Ed.2d 750 (1978), a series of recent 

‘United States Supreme Court decisions 

which invalidated true racial classifications, 
is misplaced. In Bakke, supra, a white 

medical school applicant was denied the 

opportunity to compete for 16 seats of the 

entering class solely because of his race. 
438 U.S. at 272-79, 98 S.Ct. at 2734-42, 57 

L.Ed.2d at 759-64. In City of Richmond 

v. JA. Croson Co. supra, whites were 

denied the opportunity to compete for a 

fixed percentage of public contracts solely 

because of their race. 488 U.S. at 478-82, 

109 S.Ct. at 713-15, 102 L.Ed.2d at 871-75. 

In Wygant v. Jackson Bd. of Educ., supra, 

there was a preferential layoff system in 

which minority teachers were retained over 

non-minority tenured teachers solglyssy be- 

cause of their race. 476 U.S. at 269-72, 

106 S.Ct. at 1845, 90 L.Ed.2d at 266-67. In 

an effort to analogize this case to the cited 

precedent, Cliffs argues that the “State 

Board attempted to reserve places for 

whites at DMHS in order to reduce minori- 

ty representation.” This is a distortion of 

what actually occurred. No amount of in- 

genuity can bring this case within the inter- 

. diction of Bakke, Wygant and Croson 

which involved absolute racial preferences 

in a zero-sum context. Indeed, a majority 

of Justices in Bakke specifically concluded 

that to achieve diversity, race is an appro- 

priate consideration in school admission de- 

cisions. 438 U.S. at 318-20, 98 S.Ct. at 

2762-63, 57 L.Ed.2d at 788-90 (Powell, J.); 

Id. at 324-25, 98 S.Ct. at 2766-66, 57 

L.Ed.2d at 792-93 (Brennan, White, Mar- 

shall and Blackmun, JJ., concurring). In 

Lige v. Town of Montclair, 12 N.J. 5, 367 

A.2d 833 (1976), our Supreme Court unam- 

Cite us 6U8 A.Ld Yi4 uNJd.ouper usb. A204) 

biguously explained the difference between 

a quota issue and the matter under review: 

It is important to recognize the differ- 

ence between rectifying a racially im- 

properly constituted school, Jenkins v. 

Tp. of Morris School District and Bd. of 

Ed., 58 N.J. 483 [279 A.2d 619] (1971), for 

no one has a right to attend a segregated 

school; whereas an applicant for a job or 

a promotion has a right to be considered 

and judged irrespective of race. [72 N.J. 

at 24, 367 A.2d 833]. 

If a classification exists here at all, which 

we doubt, it is not racial but geographic— 

all Cliffs’ students are involved equally. 

The designated public high school for 

Cliffs’ residents remains DMHS, and the 

injunction precludes other public school 

boards from accepting any Cliffs’ student, 

regardless of race. Conversely, the injunc- 

tion does not preclude other public school 
boards from accepting, for tuition, students 

who reside outside of Cliffs and Engle- 

wood. As such, the standard to be applied 

is a rational basis standard which requires 

only that there be some reasonable connec- 

tion between a legitimate state interest and 

the action taken. See Drew Associates, 

supra, 122 N.J. at 258-59, 584 A.2d 807; 

Barone v. Dep't of Human Services, su- 

pra, 107 N.J. at 364-65, 526 A.2d 1055. 

_lgl21] Even if we were to concede that 

the State Board's decision constitutes a 
race-based classification with respect to 

white Cliffs’ students, that remedy would 

still pass constitutional muster. The 

State's compelling interest in diversity in 

the public schools as a function of edu- 

cation cannot be seriously questioned. 

Jenkins, supra, 58 N.J. at 498-99, 279 A.2d 

: 619 (citing Booker, supra, 46 N.J. at 170- 

71, 212 A.2d 1). Concomitantly, the State’s 

interest in “assuring that public dollars, 

drawn from the tax contributions of all 

citizens, do not serve to finance the evil of 

private prejudice” is beyond dispute. City 

of Richmond v. JA. Croson Co., supra, 

488 U.S. at 492, 109 S.Ct. at 720, 102 

L.Ed.2d at 881 (comparing Norwood v. 

Harrison, 413 U.S. 455, 465, 93 S.Ct. 2804, 

2810, 37 L.Ed.2d 723, 731 (1973)). The only 

question then is whether the decision is as 

[1117]



   
narrowly tailored as it could be; was it the 
least restrictive means to 2eeomplish the 
goal? i 

Cliffs contends that the’ State Board's 
action was overbroad because it ordered an 
inter-district remedy even though no inter- 
district violation had been found , contrary 
to Milliken v. Bradley, 418° U.S. 717, 94 
S.Ct. 8112,'41 L.Ed.2d 1069 (1974). This 
argument misapprehends Milliken." There, 
the Supreme Court struck down a remedy 
imposed by the District Court to relieve de 
ure school discrimination: in Detroit. : The 

® Court had ordered a consolidation 
of Detroit and 63 suburban school districts 
because it had determined that a Detroit- 
only remedy would not alleviate the effects 
of the segregation. Id. at 729-34, 94 S.Ct. 
at 3119-22, 41 L.Ed.2d at 1082-85. There 
was no evidence of any discrimination in 
the suburban districts. While Cliffs. is cor- 
rect when it contends that Milliken, limits 
inter-district relief. to inter-district yiola- 
tions, it errs in its attempt to apply, that 
holding to this case, . Milliken did nothing 
more than define the limits of a federal 
court’s equity jurisdiction; the, decision ‘did 
not circumscribe in any way, a state's au- 
thority to effectuate its own educational 
policies. Indeed, as the Supreme Court’ 
stated in Hills v. Gautreaux, 425 U.S. 284, 
296, 96 S.Ct. 1638, 1545, 47 LEd, 2d 792, 
802-03 (1976): © -- SL REE LT BW 

LynThe District Court’s’ desegregation or- 
der in Milliken was held to be an imper- 

~ missible remedy not’ because it ‘envi- 
sioned relief against a wrongdoer extend- 
ing beyond the city in which the violation 
occurred but because it' contemplated a 
Judicial decree restructuring the opera- 
tion of local governmental. entities ‘that 
were not implicated in any constitutional 

Ww violation. ' [Emphasis added]..}. Gis 2 
The same reasoning is applicable to Cliffs’ 
reliance on the recent United States :Su- 
preme Court decision in’ Freeman ‘v. Pitts, 

503 U.S. ——, 112 S.Ct. 1430,'118 'L:Ed.2d 
108 (1992). Like Milliken, Freeman is a 
study of the limits of a' federal court's" 
continuing supervisory authority ‘ovér ‘a 

‘L.Ed.2d 554, 575 (1971)).: 
jurisdiction context, this'is an important 

segregation ‘has undergone a period of 
‘transition to de facto segregation. F'ree- 
‘man v. Pitts, 503 U.S. at —, 112 S.Ct. at 
1447, 118 L.Ed.2d at 136 (citing Swann v.’ 
Charlotte-Mecklenburg Bd.: of Educ., 402 
U.S. 1, 81-82, 91 S.Ct. 1267, 1283-84, 28 

In the federal 

issue because federal courts are powerless 
to remedy de facto segregation. See Free- 
man v. Pitts, 503 U.S. at —, 112 S.Ct. at 
1443-48, 118 L.Ed2d at 136-89; Bd. of 
‘Educ. of Oklahoma City Public Schools v. 
Dowell, 498 U.S. —, —, 111 S.Ct. 630, 
637-38, 112 L.Ed.2d 715, 728-30 (1991); 
Pasadena City Bd. of Educ. v. Spangler, 
427 U.S. 424, 436, 96 S.Ct. 2697, 2704, 49 
L.Ed.2d 599, 608 (1976). Nothing in Mil- 
liken or Freeman suggests that the limits 
there expressed are applicable to .judg- 
‘ments of the highest state educational au- 
thority as to how to carry out longstanding 
state policies in favor of racial balance as a 
function of a thorough and efficient edu- 
cational system. . Whatever the Federal 
Constitution compels, it does not preclude 
such action by the State. Jenkins, supra, 
68 N.J. at 498-99, 279 A.2d 619. Further, 
it is clear that the State Board here has 
applied the least intrusive remedy. It has 
not yet’ required consolidation of two un- 
related districts; it has only enforced a 
long-standing . voluntary, Preexisting inter- 
. district relationship. 

bY _lgrd 22) Moreover, and pokiitttending 
that a particularized finding of intentional 
‘discrimination is not a prerequisite for 

- state ‘remedies for racial imbalance, Jen- 
kins, supra, 58 N.J. at 506, 279 A.2d 619; 

‘ Booker, supra, 45 N.J. at 170-78, 212 A.2d 
~1, ‘such findings dre the leitmotif ‘which 
runs throughout the decisions here. The 

' Commissioner and the State Board clearly 
‘found that Cliffs’ residents had engaged in 
“white flight from DMHS, which flight was 
'facilitated by the: ‘Tenafly Board's private 
tuition policy and by the Cliffs Board." As 
‘the ‘Commissioner noted: “[n]o’ one could 
‘seriously believe that racial - ‘prejudice: and 

court-ordered plan to combat de jure segre- circumvention of integration is not at play 
gation. Freeman addressed the margins in this case.” Likewise, the State Board 
of federal court authority where: de: ‘jure 

[1118] 
~concluded that to deny relief here would be 

  
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Clle a8 OVO A4d div 

to make the State a ‘passive participant” in 

private discrimination. No more specific 

findings are required. Under the circum- 

stances, the State Board's action clearly 

passes strict scrutiny; it goes without say- 

ing that the lesser burdens are also met. 

[23,24] We turn next to Cliffs’ New 

Jersey constitutional claim. Article I, para- 

graph 1 of the State Constitution protects 
against the unequal treatment of those 

who should be treated alike. Barone v. 

Dep't of Human Services, supra, 107 N.J. 

at 367, 526 A.2d 1055 (quoting Greenberg 

v. Kimmelman, supra, 99 N.J. at 568, 494 

A.2d 294). When analyzing equal protec- 

tion claims under the New Jersey Constitu- 

tion, a balancing test similar to a Four- 

teenth Amendment analysis is applied. 

Barone, 107 N.J. at 368, 526 A.2d 1055. 

The weights in the balance are the nature 
of the affected right, the extent to which 

the government's restriction intrudes upon 

it and the public’s need for the restriction. 

Greenberg v. Kimmelman, supra, 99 N.J. 

at 567, 494 A.2d 294; State v. Bulu, supra, 

234 N.J.Super. at 344, 560 A.2d 1250. In 

describing the application of the analysis 

under the State Constitution, our Supreme 

Court has said that the focus is on “wheth- 

er there is an appropriate governmental 

interest suitably furthered by the differen- 

tial treatment” embodied in the action com- 

plained of. Barone, supra, 107 N.J. at 

368, 526 A.2d 1055 (quoting Borough of 

Collingswood as v. Ringgold, 66 N.J. 350, 

370, 331 A.2d 262 (1975), appeal dismissed, 

426 U.S. 901, 96 S.Ct. 2220, 48 L.Ed.2d 826 

(1976)). For the same reasons that we 

have rejected Cliffs’ Fourteenth Amend- 

ment claim, we view its New Jersey consti- 

tutional analogue as insubstantial. As we 

have said, our State’s education policy is 

advanced by the State Board's decision 

here which is a measured response to the 

problem presented. 

It should not go unsaid that we agree 

with Englewood and the amici that Cliffs’ 

invocation of the Fourteenth Amendment 

here turns that constitutional provision “on 

its head.” The Fourteenth Amendment 

and its New Jersey counterpart are meant 

to shield our citizens against state sanc- 

tioned racial discrimination. To suggest 

that they prohibit a state from applying a 

statute, specifically addressed to remedy- 

ing the educationally pernicious evils of 

white flight, racial imbalance, and de facto 

segregation in the schools is, at best, cyni- 

cal. 

VII 

Cliffs complains that, even if the State 

Board properly denied its petition for sev- 

erance, it exceeded its authority in enjoin- 

ing Tenafly and other non-party school dis- 

tricts from accepting Cliffs’ students on a 

tuition basis. With respect to Tenafly, 

Cliffs claims that the State Board’s injunc- 

tion violated Tenafly’s statutory right to 

exercise discretion as to which interdistrict 

students it accepts. It also argues that 

enjoining the THS tuition program will in 

no way increase the white student popula- 

tion at DMHS. Cliffs also asserts that the 

State Board's injunction denies due process 

to any school district not joined as a party. 

[25-27] The Commissioner has broad 

constitutional and legislative powers con- 

cerning public education. N.J.S.A. 18A:4- 

10; Piscataway Tp. Bd. of Educ. v. Burke, 

supra, 158 N.J.Super. at 441, 386 A4.2d 439. 

These powers must be interpreted suffi- 

ciently expansively to correspond with his 

“high responsibilities” in the education 

field. Jenkins, supra, 58 N.J. at 504, 

1474279 A.2d 619. N.JS.A. 18A:4-16 con- 

comitantly confers on the State Board all 

necessary powers ‘requisite to the per- 

formance of its duties.” Clearly, under 

appropriate circumstances, injunctive relief 

is a power available to the State Board. 

Bd. of Educ. of Asbury Park v. Bds. of 

Educ. of Shore Regional High School Dis- 

trict, 1971 S.L.D. 221, aff'd, 1971 S.L.D. 

228 (1971). Indeed, Cliffs concedes this 

theoretical power, arguing instead that the 

injunction was improvidently granted in 

this case because an injunction, the so- 

called “strong arm of equity,” is an ex- 

traordinary remedy not justified by the 

facts. Van Name v. Federal Deposit Ins. 

Corp., 130 N.J.Eq. 438, 442-43, 23 A.2d 261 

(Ch. 1941), aff'd, 182 N.J.Eq. 302, 28 A.2d 

210 (E. & A.1942). We disagree. 

[1119]



Bits 

  

   
[28] Here, we have: affirmed the State 

Board's determination that the Tenafly tui- 
tion policy had a serious hegative impact on 
the racial balance at DMHS.::: As: Terafly’s 
non-indigenous ‘population: increaséd, ! the 
situation at DMHS worsened:i Tenafly not 
only “lured” and “enticed”. Cliffs’ students 
by its ‘‘beggar-thy-neighbor” policy, and in 
doing so syphoned :6ff a: disproportionate 
number of high achievers, but also attract- 
ed white and Asian Englewood students, 
Given those. findings, ; the, effectuation , of 
the State’s constitutional policy in favor of 
racial balance as a function of the, quality 
of education not only authorized but com- 
pelled an injunction .against Tenafly. 11 See 
In re Solid Waste Util. Customer Lists, 
106 N.J. 508, 516, 524 A.2d: 386 (1987). As 
to the other school districts (none of ‘which 
hag complained), the State Board's directive 
Was, a necessary adjunct; to the; injunction 
against Tenafly. Without the directiye, the 
State Board could not ensure total .compli- 
ance with the educational goals it sought to 
achieve. ' Most importantly, the injunction 
was a critical element of the State Board's 
attempt to remedy the problem at DMHS 
by using the least intrusive means.” Given 
the history ‘of this case, a" laissez’ Jaire 
attitude, without an injunction, would have 
doomed these means to filise: Hi aate.d 

3. rn i 5, 
CLIO NGY iy 

g isi RRR ET i $000 
inl ars VIII ARM, RE 

[29] - While a sending-receiving' relation; 
ship is essentially an education services-for- 
tuition: exchange made ‘between : two «dis- 
tricts, that arrangement does not alter the 
structural integrity of either district. -Re- 
gionalization, on the ‘other. hand; involves 
the formation of an: entirely . new ‘school 
district governed by a separate board of 
education. See Jenkins, supra, 58 N.J. at 
504-05, .508, 279 4.24 619./. Regional dis- 
tricts can be formed for all purposes or for 
limited purposes:. -N.J.S.A.. 18A:18-2. 
Among the “limited purposes’ is the orga- 
nization of a regional district to: operate. a 
high school. or high schools ionly....Engle- 
wood has petitioned for the creation .of.a 
regional high school district “including it, 
Cliffs and Tenafly. The effect of such a 
regional district here would be to transfer 
[1120] 

  

    

   
    

control over DMHS and. THS to a regional 
school board. ee ie TN SELEY 
AEB et fd SEER REL EAN V1 3 © [30] The authority for cross-district, re, nl 
gionalization arises out of Jenkins Where © 2 
the Supreme Court expanded on the Book: ++ 
er principle of intra-district regionalization 
ixIt is true that Booker dealt with a.com- 
/;; munity, ‘which was wholly contained with. a 

. ina single district fixed by municipal 
-. lines whereas here the community in- ; . volves two districts. Fone pH Soi ala y 

'" As “the Supreme ‘Court pointed out: in 
Reynolds v. Sims, 817 U.S. 533, [675)84 - 

“SC: 1362, [1388] 12° L.Ed.2d 506, 635 
(1964), political subdivisions of the state 

"Whether they’ be “counties; cities “or 
* whatever” are’ not “sovereign entities” 
"and may readily be bridged when neces- 
© sary to vindicate federal constitutional 
"rights and policies. See Gomillion 
“Lightfoot, 364 U.S. 339, 347, 81' S.Ct. 
125, 5 L.Ed.2d 110, 116 (1960); . United 
"States v. State of Texas, 321- F.Supp. 
©1043, ‘1050-1058 (E.D.Texas 1970); - ¢f 

~~ Jackman, et al. v. Bodine; et al. 55 N.J. 3 A 
"1871 [262 A.2d 389] (1970). 'It seems clear E fe 
"to us that, similarly, governmental subdi-  f 
'“ vigions of the state may readily be 
"bridged when necessary to’ vindicate 
‘state constitutional rights and’ policies. 
“This does not entail any general depar- i 1 “ture from the historic home rule princi- Eo ples: and practices ‘in our State .in "the Eg 33 
“ field of education or elsewhere; ‘ but it + 
“does entail suitable measures of power in 
our State authorities for fulfillment of 

" the educational and racial policies embod- 
“ied in our State Constitution and in its 
implementing legislation. Surely if those 
policies and the views firmly expressed 

“by this Court in Booker (45 N.J. 161 [212 
'A.2d 1]) and now reaffirmed are to be at 
all meaningful, the State Commissioner 

- must have power to cross. district lines to 

i 

  

- avoid “segregation in fact” (Booker, 45 + 2 
t..N.J.-at 168 [212 4.2d 1]), at least where, g 
as here, there > |4768re no .impracticalities | 3 
:«-and the concern is not with multiple com- 

. munities’ but with a single community 
without. visible . or factually. significant 

 



  

    

    

regional 
rie 

TeieTies g- 

trict, re; -v 

ie state 

Lies “or 
ntities” 

neces- 

utional 

Vion v, 

1° S.Ct. 

United 

“Supp. 

0); - cf. 
56 N.J. 

8 clear 

subdi- 

ily be 

1dicate 

plicies. 

depar- 
princi- 

in ‘the 
but it 

wer in 
=nt of 

mbod- 

in its 

those 

ressed 

[212 

- be at 

sioner 

mes to 

=r, 45 

«here, 

mlities 

= CcOm- 

munity 

ficant 

    

  

  

Asi vaaksba vi UD iv. J. 49 

"Cite as 608 A2d 914 (NJ. Super Al. 1992) 

internal boundary separations. [Jen- 

kins, 58 N.J. at 500-01, 279 A.2d 619]. 

“ The ALJ opined that the detriments of 
regionalization outweighed the benefits. 

The Commissioner adopted these findings 

and concluded that Englewood had failed to 
meet the three-part test established in Jen- 

kins to prevail on the question of whether 

compulsory regionalization should be or- 

dered: the existence of a “single communi- 

ty”; that regionalization is feasible and 

workable, and that it can be accomplished 

“without any practical upheavals.” (citing 

Jenkins, supra, 58 N.J. at 505, 279 A.2d 

619). The State Board rejected the *‘Com- 

missioner’s legal conclusion (also previous- 

ly expressed in Bd. of Educ. of New 

Brunswick v. Bd. of Educ. of Tp. of North 

Brunswick and Bd. of Educ. of Milltown, 

1974 S.L.D. 962, 986 (1974), affd, 1975 

S.L.D. 1110 (1975)) that Jenkins limited its 

authority to act to those circumstances 

where a ‘single community” exists and 

specifically concluded that it would not hes- 

itate to order regionalization in a non-single 

community case where such a remedy was 

necessary to “vindicate our State’s policy 

against segregation.” 

Cliffs and Tenafly argue that the single 
community principle is a part of the funda- 

mental holding of Jenkins and that the 

State Board erred in dispensing with it. 

We disagree. A fair reading of Jenkins 
evidences no intention to restrict its reme- 

dial scope to such circumstances. The ex- 

pansive general principle enunciated in Jen- 

kins was that cross-district regionalization 

is an available arrow in the Commissioner’s 

desegregation quiver. The Court took 

pains to explain the importance of this rem- 

edy in vindicating our State’s Constitution- 

al and statutory policies. It described the 

municipalities under review (Morristown 

and Morris Township), as a single commu- 

nity because they were physically, socially, 

commercially, and governmentally interde- 

pendent. 58 N.J. at 485-86, 279 A.2d 619. 

Most importantly, the Court declared the 

configuration before it as “probably a 

unique one in our state.” Jd. at 485, 279 

A.2d 619. |4lt is inconceivable to us that 

the Court intended its far reaching state- 

ment of policy to be limited to a fact pat- 

tern which, it recognized, was unlikely to 

reoccur. That is the interpretation. urged 

by Cliffs and Tenafly. Its effect would be 

to eviscerate Jenkins, a result we will not 

allow. 

We think the correct interpretation is 

that cross-district regionalization is avail- 

able even where a single community does 

not exist. The facts in Jenkins were hap- 

penstance which made the ultimate out- 

come of that case obvious but did not con- 

stitute a requirement for the application of 

the fundamental case doctrine. In ruling 

to the contrary, the Commissioner essen- 

tially elevated the facts of the case into a 

principle of law. The State Board has now 

remedied the misreading, and we fully ap- 

prove its interpretation. 

In so doing, we specifically reject, as did 

the Supreme Court in Jenkins, the sugges- 

tion that principles of home rule and local 

control are violated by the exercise of the 

State Board's power in this context. 58 

N.J. at 500, 279 A.2d 619. Like parental 

choice, home rule and local control must 

yield to the fulfillment of the educational 

and racial policies in the constitution and 

statutes of this State. 

We also reject Tenafly’s suggestion that 

the Legislature has implicitly overruled 

Jenkins by enacting statutory measures 

for the takeover of failing school districts. 

See Public School Education Act of 1975, 

N.J.S.A. 18A:TA-34 to -52. Having never 

been raised below, the argument is not 

properly before us and, in any event, is not 

meritorious. The State takeover legislation 

is a remedy for a failing school district and 

is essentially irrelevant to Jenkins and the 

facts presented here. N.J.S.A. 18A:TA-34. 

[31] Finally, we note that even if we 

were to accept the single community re- 

quirement as a part of the fundamental 

holding of Jenkins, it would not bar a 

regionalization study in this case. Single 

community is nothing more than a reality 

principle, reflecting a pre-existing blurring 

of the municipal | ysboundaries, rendering 

the bridging of those boundaries less im- 

practical than would ordinarily be the case. 

58 N.J. at 500, 279 A.2d 619. This record 

[1121]



   demonstrates long-term de Jure and de fac- 
to educational interconnections between 
Englewood, Cliffs and Tenafly: which we 
deem sufficient to meet the principles. in. 
forming the single community’ doctrine wil; 

Cliffs and Tenafly" argue; that, in : any : 
event, regionalization was properly rejected 
as a remedy because it, js peither reason. 
able, feasible, workable’ nor, educationally 
sound. In attempting. to: ome to, grips ' 
with these .arguments, .it is. important, to 
understand what is and what is’ not before 
us on the regionalization end of this appeal. 

@- we read this record, although the Com; 
missioner rejected regionalization because: 
Englewood had failed to: meet the Jenkins ¢ 
standards (single community, : feasibility | 
and no practical upheavals) the State Board 
made no such findings. It stated: : : 

While we concur that it is. peither neces: 
sary nor advisable for, this agency tg 
actively pursue compulsory regionaliza- 
tion at this point, we do so for reasons 
different than those expressed by’ the : 
Commissioner. but weil tah, de 

and: BNNs Brn, heii 
In that it has not been shown that more 
intrusive measures than those. we: have 
directed are necessary at this juncture in order to vindicate our State's constitu- 
tionally derived policy, we conclude that 
it would be premature for this, agency to 
pursue compulsory regionalization 'g 
this point. [Emphasis added). 

From these quotations, it can fairly be ar- : 
gued that the State Board not only rejected 
the Commissioner's conclusions. as to the 
single community doctrine but also the bal- 
ance of his conclusions as to ‘Englewood’s 
failure to meet the feasibility and no prac- 
tical upheaval standards. Plainly there 

uld be no warrant for the State Board to 
old out the possibility of regionalization if 

it had already found regionalization to be 
an infeasible remedy which: would cause 
undue practical upheavals. ; It is unneces- 
sary, however, to go so far in interpreting - 
the State Board's ruling. :: All that need: be 
said from our perspective is:ithat the State: 
Board never reached the substantive issues 
surrounding regionalization because it was 
convinced that the measures it’put in place 
[1122] 

-would “vindicate the State’s _l4reconstitu- 
tionally derived policy against . segrega- 
tion.” Indeed, because of the way the case 

- was decided by the ALJ and the Commis-. 
» sioner, no potential regionalization configu- 

rations were actually presented to the 
State Board ‘for consideration. As such, 

us. 

LBS IW ‘ IX TRE hl al? PE SE tat 

"Englewood and the amici argue that the 
remedies originally ordered by the’State 
Board (which did not include regionaliza- 
tion or'a regionalization study) should be, 
rejected by us because’ even if they were . 
completely successful, they would still hive - left DMHS in a state of unconstitutional _ racial imbalance. The administrative hear- 
ing revealed the following facts relevant to 
this’ argument. As ‘of 1987-1988, DMHS 
was 84.0% black and Hispanic. 'THS was 
1.5% black ‘and Hispanic. ‘Blacks and His- 
panics’ made up only 7.0% of the Cliffs 
school enrollment. * The ‘school population 

© of Bergen County, as a whole, was 6.4% 
- black and 5.6% Hispanic. The most opti- 

mistic outcome under the orders issued by 
the State Board would have been that, 
within several years, all high school stu- 
dents from Cliffs would attend. DMHS. 
The .State Board concluded .. that : under 
those circumstances, DMHS would remain 
78.0% black and Hispanic while THS would 
remain overwhelmingly white. : Put anoth- 
er way, if the State Board's initiatives were 
entirely successful, the minority enrollment 
of DMHS would remain more than six 
times that of the county as.a whole and 
more than 35 times that of Penafly, The 
State Board held that this result “might 
well afford all students who attend Dwight 
Morrow . the . educational advantages of a 
heterogeneous student population” since it 
would result in- DMHS being “both. multi- 
racial and multi-cultural.” by 

--' Based on these facts, we have: doubts 
about the State Board's original denial of a 
regionalization study. In Booker, the Su- 
preme Court said that “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.” 45 
N.J. at. 170, 212 4804.2d 1,, It also declared 

the merits of regionalization are not before 

  

    

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Cite as 608 A.2d 914 (N.J.Super.A.D. 1992) 

‘that the Commissioner has a duty to ensure 

that such learning occurs in schools that 

are not de facto segregated and that he 

must not only eliminate schools that are 

“entirely or almost entirely Negro,” 45 N.J. 

at 178, 212 A.2d 1, but must also achieve 

“the greatest dispersal consistent with 

sound educational values and procedures.” 

Id. at 180, 212 A.2d 1. By focusing on 
Booker’s “multi-racial and multi-cultural” 

reference instead of the principle of “great- 

est dispersal”, it seems to us that the State 

Board recast the expansive holding of 

Booker as the far more limited holding that 

achieving some minimal racial and cultural 

diversity will suffice. In so doing, the 

State Board eviscerated Booker’s explicit 

ban on school segregation. If it had taken 

no further action, we would likely have 

intervened on this issue, at least to the 

extent of requiring an explanation of what 

educational values and procedures the 

State Board viewed as counter-balancing 

the need for greatest dispersal. Because 

of the later developments, it is unnecessary 

for us to do so. 

X 

On June 5, 1991, during the pendency of 

this appeal, the Commissioner issued his 

first annual report to the State Board pur- 

suant to the State Board's earlier order. 

In his report the Commissioner (1) de- 

scribed the efforts which Cliffs and Engle- 

wood had made to develop a plan encourag- 

ing students to attend their designated 

high school (2) set forth his suggestions as 

to how to improve those plans, and (3) 

recommended that a regionalization study 

be begun because he doubted that the 

State Board's remedial measures would re- 

verse the trend of white migration from 

the designated high school. On July 3, 

1991, the State Board enacted a resolution 

adopting the Commissioner’s recommenda- 

tions. 

On August 5, 1991, Cliffs and Tenafly 

filed motions pursuant to R.2:2-4 for leave 

to appeal from the State Board's July 3 

resolution. Their principal claim is that the 

State Board violated; R.2:9-1 in ordering 

a regionalization study while this appeal 

o Rais amsiad vil Ns Sas Ata Ua 

was pending. They also reprise many of 

the arguments we addressed earlier in urg- 

ing that the decision to order the study was 

arbitrary because the State Board has no 

power to regionalize in these circum- 

stances; that the precedent in this case is 

violated by the order; that the study vio- 

lates federal constitutional principles, and 

that it contravenes the Governor’s position 

on the subject. Englewood counters that 
the order merely implemented the unstayed 

April 1990 ruling of the board. We agree 

with this view. But even if it could be 

argued that the July 3 ruling had sufficient 

commonality with the issues on appeal to 

have warranted a motion by the State 

Board for a temporary remand to take fur- 

ther action, that motion, if made, would 

surely have been granted. We thus ad- 

dress the State Board’s decision on its mer- 

its. 

[32] We have previously rejected the 

argument that the State Board lacks the 

theoretical power to regionalize unrelated 

districts and to take race into consideration 

when doing so. Likewise, we find no merit 

to Cliffs’ claim that the Governor's recent 

general . statement about regionalization 

has any effect whatsoever on the State 

Board's authority to fashion an appropriate 

remedy in a specific case. . Further, the 

suggestion that the regionalization study 

order violates precedent in this case over- 

looks the fact that the study was clearly 

within the intendment of the April 5, 1990 

order which authorized the Commissioner 

to recommend additional measures if he 

determined that the monitoring process 
was not yielding results with sufficient 

alacrity. That is exactly what occurred. 

[33] We likewise reject the argument 

that the order for a study is invalid because 

there are no “standards” to govern the 

conduct of such a study. Jenkins gives us 

those standards: any plan for regionaliza- 

tion must be “reasonable, feasible and 

workable.” Clearly, the State Board is the 

proper arbiter of when regionalization is 

appropriate: 

_l4s2It is axiomatic that the Legislature 

may commit a subject to the judgment of 

an administrative agency with a state- 

[1123]



| 

  

   
The .-exigencies of modern ‘government 

have increasingly dictated:the:use:of gen- 

eral rather than minutely ‘detailed :stan- - 

dards. : [In re: Trenton: Bd.:of Ed:;:176 

N.J. Super. 553; 562 [424-4.2d 435) (App. * 
Div.1980)," aff'd, 86 :N.J.- 327 [481-4.2d ° 
808] (1981) (citations: omitted) }. Ji Jkt 

Indeed but for the politically’ and:emotion- 
ally charged subject matter here, it is hard 

for us to imagine any’ reasonable person 

challenging the power of :'the ‘Board ‘to 
“study” an issue committed to:its' overall 
authority. TERRE ay + § 8 IM piptc sity! 

[34) ‘Englewood and’ the’ amiét’ ppose 

further study of this isdile op wholly differ 1° #0 

ment of the: goal to. be reached (rather vey 

than the path to be: followed to.reach. it. : 

ent grounds, ! "They lirge that the bix years 
this case has been pending’ fs Joni gisisnd i 
to wait for ‘a remedy.” We’ agree but the 
necessity of further study-is evident and no +" 
action by us is feasible in the abdenté of a i’ 
ruling by'the State’ Board in' the’ first. in- 1+ 
stance. As the State Board argued before - 
‘us, “[u]ntil a full study has been completed - * * 
‘the appropriateness of regionalization can- * 
‘not be determined.” Branchburg, supra, 
173 N.J.Super. at 276, 414:4.2d 259 <Fur- ' 

ther, as we understand !it,: Englewood, 

Cliffs and Tenafly are not the only districts -. 
which will be the focus of the study.'«If an ‘ 
ultimate regionalization’ plan’is approved, 

these, objectors may not:even be a partof “i. 
"it. ad ig iF Lai ut) Gitta ; 

Naturally, every effort ‘should’ bé ‘made 
to complete the study quickly’ because the 

amount of time which has’ elapsed since the 

inception of this case has been inordinately 
long. The stay of the State Board's resolu- 
tion authorizing a regionalization study is 
thus dissolved. There is simply no ‘reason 

to delay the study furtherieven if the ap- 

peal is-pursued. :We are, however, in ‘no 

position to assess, at:this point; the extent 
of the study necessary (other ‘than to ob- 

serve that Englewood and: Tenafly have 

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already been exhaustively: reviewed) or to - 
place specific time limits on: the completion - 

of this difficult task. If it appears that a 

further unreasonable delay. is occurring 

during the study, any party may return to 

us to apply for a more definitive time table. :- 

. [1124] 
§ is 

We affirm the. denial of termination of 

.the sending-receiving relationship between 

1«Cliffs - and Englewood. .-We affirm the 

“]4ssdenial of the establishment of a dual 

.sending-receiving relationship between En- 

“:glewood, Cliffs. and ‘Tenafly. We affirm 

“sthe injunction: against "all. public school 

boards in the state accepting students from 

: Cliffs or Englewood.’;-We affirm the order 

denying regionalization at the present time, 

and we affirm the order for a Feglonaliza: 

  

  
  

  

  

  

 
:
 

  
 



Cite as 6U8 A.2d 1141 (Fa.Cmwith. 1992) 

tion of ; 

etween Joseph CULLURA, Appellant, 

m. the 

a :dual y. 

en En- SCHOOL DISTRICT OF BRISTOL 

affirm TOWNSHIP and the Board of School 

school Directors of the School District of Bris- 

8 from tol Township, Appellees. 

) order : 
t time, ! Commonwealth Court of Pennsylvania, 

maliza- Argued Sept. 12, 1991. 

eens Decided May 5, 1992. 

eh * School district employee brought ac- 
tion after he was promoted, then replaced . 

with senior union employee, and then dis- 

charged. The Commen Pleas Court, Bucks 

County, No. 90-65534-05-5, Isaac S. Garb, 

President Judge, denied employee's appeal 

; from decision of school board terminating 

i re. : j + him as nonprofessional employee. Appeal 

ji was taken. The Commonwealth Court, No. 

of : ; 3 C.D. 1991, Doyle, J., held that successful 

: job applicant was necessary party to litiga- 

tion so that former employee would be 

allowed to take necessary steps to join suc- 

cessful applicant to litigation. 

  
Vacated and remanded. 

Barbieri, Senior Judge, filed dissenting 

opinion.   
1. Constitutional Law &=278.4(5) 

Officers and Public Employees ¢=11.7 

Successful promotion candidate was in- 

dispensable party whose due process rights 

were violated by employer's failure to pro- 

vide that individual with opportunity to par- 

ticipate in nonselectee’s challenge. 

  

2. Officers and Public Employees ¢=11.7 

If individual challenges his nonselec- 

tion for promotion based on statutory and 

not due process grounds, public employee 

whose promotion is being challenged is not 

indispensable party to litigation. 

  

  

3. Constitutional Law €=277(2) 

Civil servant has property interest in 

his or her position which cannot be re- 

: [1125] 

yy