(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 22, 2001 -- Decided January 24, 2002
Stein, J., writing for a unanimous Court.
The issue on appeal is the appropriate allocation of responsibilities between the Commissioner of
Education and the Englewood School District in the development and implementation of a voluntary plan designed
to achieve an appropriate racial balance and educational quality at Dwight Morrow High School through the use of
magnet and specialty schools.
The litigation leading to this appeal began in 1985 when the Board of Education of the Borough of
Englewood Cliffs (Englewood Cliffs) sought to sever a nearly two-decade-long sending-receiving relationship with
the Board of Education of the City of Englewood (Englewood) pursuant to which public high school students living
in Englewood Cliffs were educated at Englewood's Dwight Morrow High School (Dwight Morrow). During the
decade prior to the effort to end the relationship, enrollment of students from Englewood Cliffs at Dwight Morrow
dropped dramatically. During most of the 1970s, about 60% of Englewood Cliffs' eighth graders went on to Dwight
Morrow for high school. In the 1980-1981 school year, 69% attended Dwight Morrow, but by 1987-1988, this
percentage fell to 4.4 %. Of the 799 students enrolled at Dwight Morrow that year, only twenty-one were from
Englewood Cliffs. The racial composition of the school that year was 11.8% white, 66.2% black, 17.8% Hispanic,
and 3.9% Asian. In 1982-1983, the racial make-up of the school's 1,128 students (119 of whom were from
Englewood Cliffs) had been 31.5% white, 55.5% black, 10.3% Hispanic, and 2.7% Asian.
Finding that one reason for the increased racial imbalance and the decline in the number of Englewood
Cliffs students at Dwight Morrow was a policy adopted by the Tenafly Board of Education that, beginning in 1982,
permitted out-of-district students to pay tuition and thereby attend Tenafly High School, an Administrative Law
Judge (ALJ) concluded after ninety-nine days of hearings that the sending-receiving relationship should not be
terminated and that neither Tenafly nor any other district should be permitted to accept tuition-paying high school
students from Englewood or Englewood Cliffs. These determinations and the findings of the ALJ were affirmed by
the Commissioner, by the State Board of Education (State Board), and by the Appellate Division (in Englewood I ).
The Appellate Division noted in Englewood I that the State Board had concluded that it had a duty to act to seek to
ensure that students from Englewood and Englewood Cliffs who attended public high school attended Dwight
Morrow and observed that the State Board had directed the two districts to develop a plan to encourage parents to
send their children to that school. The Supreme Court affirmed in Englewood II in1993, but declined to decide
whether the State Board or a court could mandate regionalization, relief that had been sought by Englewood and
rejected by the reviewing entities, although the Appellate Division had not disturbed the State Board's authorization
of a regionalization study.
Between 1993 and 1997, the efforts to resolve the racial imbalance at Dwight Morrow included the
Commissioner's retention and use of outside consultants to conduct a regionalization study and to assist Bergen
County communities in developing a plan to encourage voluntary attendance at Dwight Morrow. Public hearings
and the appointment of a task force followed submission of the consultants' reports in July 1995.
On November 7, 1997, the State Board adopted the report of the Commissioner dated February 5, 1997, in
which he recommended against regionalization of the Englewood, Englewood Cliffs, and Tenafly districts as a
means of improving the racial balance at Dwight Morrow. The State Board also announced its intention to pursue a
voluntary solution focused on the development at Dwight Morrow of a magnet school to draw students from the
neighboring districts and enhance racial diversity at Dwight Morrow.
In another decision, dated October 7, 1998, the State Board adopted the recommendation of its Committee
on Englewood that Englewood be charged with initial responsibility for developing an enhanced plan to reduce
racial segregation at Dwight Morrow within five years. The State Board required the Commissioner to assist
Englewood in developing the plan, directed that the plan include benchmarks to permit the State Board to monitor
progress, and ordered Englewood to submit the enhanced plan to the Commissioner within two months.
The Appellate Division upheld the State Board's decisions dated November 5, 1997, and October 7, 1998,
in 2000 in its decision in Englewood III. The court observed in that decision that although the State Board had
imposed on Englewood initial responsibility for devising a plan to achieve racial balance and educational quality,
the Commissioner “bears a heavy responsibility” to assist in the plan's development and implementation, including
assistance in developing sources for funding magnet and specialty schools.
The Supreme Court granted the petition for certification filed by Englewood to consider the question of the
allocation of the responsibilities associated with development and implementation of the plan. The current status of
the plan as reported at oral argument is that the Bergen County Technical School (Bergen County Tech) is willing
to offer some of its academy-type programs at Dwight Morrow beginning in September 2002, which will draw
sufficient numbers of students from throughout Bergen County to remedy the racial imbalance. The Department of
Education is prepared to provide funding for preliminary planning and other initial steps toward implementation.
HELD: The Commissioner of Education and the State Board of Education retain the ultimate responsibility for
developing and directing implementation of a plan to redress the racial imbalance in the student population at
Dwight Morrow High School.
1. The State Board consistently and expressly acknowledged in its 1990 decision that it had the responsibility to act
to correct the racial imbalance at Dwight Morrow. As affirmed by the Appellate Division, that determination of
responsibility is binding on all the parties to the litigation under the “law of the case” doctrine. ( pp. 27-33 )
2. In view of the history of the litigation and the State Board's express assumption of responsibility in 1990, the
apparent allocation of duties relating to remediation of the racial imbalance at Dwight Morrow imposed by the State
Board in its decision of October 7, 1998, is not faithful to the Board's 1990 determination. The actions taken by the
Commissioner and the Department since 1998, however, such as proposing the partnership with Bergen County
Tech and providing start-up funding, demonstrate their commitment to resolution of the problem. ( pp. 33-36 )
3. The issue of funding the proposed academy is not before the Court. The Court notes only that the State Board has
acknowledged its “obligation to take such steps as are necessary to correct” the racial imbalance and that the State
has agreed to fund initial start-up costs of $385,000. ( pp. 36-37 )
As MODIFIED, the judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, concurring, recognizes that the funding issue is not before the Court, but expresses his
view that the State Board 's 1990 decision constitutes an acknowledgment that it bears primary responsibility for
providing or procuring financing for any plan to alleviate racial imbalance at Dwight Morrow.
JUSTICE LA VECCHIA, concurring in the judgment, objects to the Court's discussion of the funding
issue, which was not raised or addressed by the parties and resolution of which is not necessary to the decision.
Moreover, JUSTICE LA VECCHIA does not consider the statements in the 1990 decision of the State Board
about the power and responsibility to direct actions to remedy school segregation to be pronouncements on funding
responsibility.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, and ZAZZALI join in
JUSTICE STEIN's opinion. JUSTICE STEIN and JUSTICE LaVECCHIA filed separate concurring
opinions. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A-
60 September Term 2000
BOARD OF EDUCATION OF THE
BOROUGH OF ENGLEWOOD CLIFFS,
BERGEN COUNTY,
Petitioner,
v.
BOARD OF EDUCATION OF THE
CITY OF ENGLEWOOD, NEW
JERSEY,
Respondent-Appellant,
v.
BOARD OF EDUCATION OF THE
BOROUGH OF TENAFLY, BERGEN
COUNTY,
Respondent-Respondent.
IN RE RESOLUTION TO ACCEPT
THE FINAL REPORT OF THE
COMMITTEE ON ENGLEWOOD
Argued October 22, 2001 -- Decided January 24, 2002
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
333 N.J. Super. 370 (2000).
Arnold K. Mytelka argued the cause for
appellant (Kraemer, Burns, Mytelka, Lovell &
Kulka and Paul L. Tractenberg and Berkowitz,
Lichtstein, Kuritsky, Giasullo & Gross,
attorneys; Mr. Mytelka, Mr. Tractenberg and
Agnes I. Rymer, on the briefs).
James S. Rothschild, Jr., argued the cause
for respondent Board of Education of the
Borough of Tenafly, Bergen County (Riker,
Danzig, Scherer, Hyland & Perretti,
attorneys).
Nancy Kaplen, Assistant Attorney General,
argued the cause for respondent State Board
of Education (John J. Farmer, Jr., Attorney
General of New Jersey, attorney; Ms. Kaplen
and Michelle Lyn Miller, Deputy Attorney
General, of counsel; Ms. Miller and Thomas
Russo, Deputy Attorney General, on the
briefs).
Bernard K. Freamon argued the cause for
amici curiae National Association for the
Advancement of Colored People, (NAACP), New
Jersey State Conference of the NAACP and
Bergen County Chapter of the NAACP.
The opinion of the Court was delivered by
STEIN, J.
We granted the petition for certification of the Board of
Education of the City of Englewood (Englewood) to consider and
resolve “the appropriate allocation of specific responsibilities
between the Commissioner of Education and the Englewood School
District in relation to the development and implementation of a
voluntary plan that is designed to achieve an appropriate racial
balance and educational quality at Dwight Morrow High School by
means of magnet and specialty schools.”
166 N.J. 604, 605
(2000). Although events that have transpired subsequent to our
grant of certification may, if they prove successful, render moot
or diminish the significance of the question certified, we
nevertheless elect to resolve it. In view of the protracted and
contentious history of this litigation that began in 1985, a
voluntary, amicable and successful resolution brought about by
the parties clearly is preferable to a resolution dependent on
our adjudication of this appeal.
I
A
Although the record and briefs material to this appeal are
voluminous, the narrow issue certified is based on two decisions
by the State Board of Education (State Board), one on November 5,
1997 and the other on October 7, 1998, concerning the steps that
should be taken to resolve the longstanding segregation of the
student body at Englewood's Dwight Morrow High School (Dwight
Morrow). In its November 7, 1997 decision the State Board
adopted the Report of the Commissioner of Education
(Commissioner) dated February 5, 1997, in which he recommended
against regionalization of the Englewood, Englewood Cliffs, and
Tenafly school districts as a means of improving the racial
balance at Dwight Morrow. The State Board concluded that neither
regionalization nor agency adjudication could resolve the
segregation problem at Dwight Morrow. Although acknowledging
that the protracted litigation involving the three districts had
“not ameliorated the racial isolation of the students attending
Englewood's public schools,” the State Board expressed its
intention to pursue a voluntary solution that focused on the
development at Dwight Morrow of a magnet school, affiliated with
a university, that was designed to attract students from
neighboring districts in order to achieve enhanced racial
diversification of Dwight Morrow.
In its October 7, 1998 decision, the State Board adopted the
recommendation of its Committee on Englewood that the Englewood
School District be charged with the initial responsibility for
developing an enhanced plan to reduce racial segregation at
Dwight Morrow. The Board stated that the new plan was to include
a reexamination of a prior magnet school plan entitled “Englewood
Achieves” that had been submitted for federal funding, together
with other approaches noted in the Committee's report. The plan
to be developed by Englewood “must reasonably be expected to
reduce the percentage of minorities at Dwight Morrow [] over the
next five years so as to ultimately achieve a balance in the
composite student body.” The State Board's decision required the
Commissioner to “provide appropriate assistance to [Englewood] in
its development of the enhanced plan,” mandated that Englewood's
plan include benchmarks that would allow the State Board to
assess progress on a regular basis, and ordered Englewood to
submit its enhanced plan to the Commissioner within two months.
In a published opinion, the Appellate Division upheld the State
Board's November 5, 1997 and October 7, 1998 decisions. Bd. of
Educ. of Englewood Cliffs v. Bd. of Educ. of Englewood,
333 N.J.
Super. 370, 382-83 (2000) (Englewood III). On the question of
the allocation of responsibility, the Appellate Division observed
that although the State Board had imposed on Englewood the
initial responsibility for developing a plan to achieve racial
balance and educational quality, the Commissioner “bears a heavy
responsibility to assist in the development and implementation of
a workable plan for Dwight Morrow,” and that responsibility “must
include assistance in developing the 'funding sources' required
to establish magnet and other specialty schools.” Id. at 384.
B
In determining whether the State Board's allocation of
responsibility for remedying racial segregation at Dwight Morrow
is sustainable, we first must review the factual record and prior
adjudications in order to establish a context for resolving that
issue. The procedural history of the litigation from 1985 to
1993 is summarized by the Appellate Division in Englewood III:
This case was commenced in 1985 when the
Board of Education of the Borough of
Englewood Cliffs (Englewood Cliffs) filed a
petition with the Commissioner of Education
(Commissioner) seeking to sever its
long-standing sending-receiving relationship
with the Board of Education of the City of
Englewood (Englewood), under which high
school students residing in Englewood Cliffs
are educated at Dwight Morrow High School
(Dwight Morrow) in Englewood. Englewood
opposed the petition and filed a cross
petition seeking to enjoin the Board of
Education of the Borough of Tenafly (Tenafly)
from admitting tuition-paying high school
students from Englewood Cliffs and Englewood.
In addition, Englewood asked the Commissioner
to require the three districts to form a
single regional district at the high school
level.
The petitions were referred to the
Office of Administrative Law, and an
Administrative Law Judge (ALJ) conducted a
ninety-nine day hearing. The ALJ recommended
the denial of Englewood Cliffs' petition to
sever the sending-receiving relationship with
Englewood. The ALJ also recommended granting
Englewood's cross-petition to enjoin Tenafly
from admitting students from Englewood Cliffs
and Englewood on a tuition basis. In
addition, the ALJ recommended the denial of
Englewood's petition to compel Englewood
Cliffs and Tenafly to join with Englewood in
forming a regional high school district.
The Commissioner accepted the ALJ's
factual findings and recommendations. The
State Board of Education (State Board)
affirmed the Commissioner's decision, but
made several modifications. Although it
agreed with the Commissioner's denial of
Englewood's petition for the establishment of
a regional high school district, it directed
Englewood Cliffs and Englewood to develop a
plan to encourage students residing in their
communities to attend Dwight Morrow. The
State Board also ordered the Commissioner to
monitor implementation of the plan and
present an annual report regarding the impact
of the plan upon the racial composition of
Dwight Morrow. In addition, the State Board
enjoined not only Tenafly but also all other
school districts in the State from admitting
students residing in Englewood and Englewood
Cliffs on a tuition basis.
Englewood Cliffs filed an appeal to this
court from the State Board's denial of its
petition to sever the sending-receiving
relationship with Englewood, and Englewood
filed a cross-appeal from the State Board's
refusal to order the establishment of a
regional high school district.
During the pendency of the appeal, as
the number of students from Englewood Cliffs
attending Dwight Morrow continued to decline,
the State Board adopted the Commissioner's
recommendation that a study be undertaken to
explore the potential for establishing a
regional school district. Englewood Cliffs
and Tenafly appealed from the State Board's
resolution approving this recommendation.
We affirmed the State Board's denial of
Englewood Cliff's petition to withdraw from
the sending-receiving relationship with
Englewood. We also affirmed the State
Board's orders enjoining any other school
district from admitting students from
Englewood and Englewood Cliffs on a tuition
basis and authorizing a regionalization
study. In addition, our opinion stated in
dictum that the State Board had the authority
to order regionalization in this case[.]
On appeal, the Supreme Court of New
Jersey affirmed substantially for the reasons
expressed in our opinion. However, the Court
expressly stated that it was not deciding
whether the State Board or a court could
mandate regionalization[.]
. . . .
The Supreme Court of the United States
denied Englewood Cliffs' petition for a writ
of certiorari.
510 U.S. 991,
114 S. Ct. 547,
126 L.Ed.2d 449 (1993).
[333 N.J. Super. at 373-75
(citations omitted).]
Critical aspects of the evidentiary record were summarized
by the Appellate Division in its original decision, Board of
Education of Englewood Cliffs v. Board of Education of Englewood,
257 N.J. Super. 413 (1992) (Englewood I), that modified and
affirmed the State Board's earlier disposition:
C. The Relationship between the Districts
In October 1965, Cliffs and Englewood
executed a 10-year sending-receiving contract
to begin in 1967. The agreement essentially
obligated Cliffs to send its public high
school students to DMHS and required 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 students.
Every year between 1970 and 1976 Cliffs
sent approximately 60.0% of its graduating
eighth graders, or approximately 60 to 70
students, to DMHS. The remaining Cliffs'
eighth graders chose to attend private
schools. During these years, the total
number of Cliffs' students attending DMHS
averaged approximately 245 per year. During
the middle 1970s, however, Cliffs became
dissatisfied with the sending-receiving
relationship. In 1977, rather than renew the
relationship and because applicable law made
terminations of such relationships subject to
the Commissioner's approval, Cliffs
petitioned the Commissioner to sever the
relationship so that it could explore the
establishment of sending-receiving
relationships with other districts. Englewood
opposed the severance. Cliffs eventually
withdrew its petition, apparently because it
was unable to support its allegation that
DMHS was not providing a good education.
. . . .
In the late 1970s, newspaper articles
emphasizing the negative aspects of DMHS
began to appear. These newspaper accounts
contributed to the growing public perception
that DMHS had serious problems and to the
declining enrollment of Cliffs' students at
DMHS. During this period, the question of
severance became a political issue; at one
point all of the candidates for Cliffs'
school board were in favor of severance, and
the slate most committed to severance
ultimately prevailed in the 1985 election.
Between 1974 and 1982, Cliffs
affirmatively encouraged its high school-aged
students to attend DMHS. For example, during
1980-1981, "cottage parties" were held
between Cliffs and Englewood, at which board
members and teachers from DMHS were available
to answer questions about the school;
however, the program ceased after one year,
and by 1982 Cliffs stopped encouraging its
students to attend DMHS altogether.
Before 1982, THS was the receiving
school for students from Alpine, a wealthy
community on Tenafly's northeastern border.
Around 1982, Tenafly's superintendent
reported to Tenafly that, in an informal
discussion with Dr. Harold France,
Superintendent of Cliffs' schools from 1973
to 1986, Dr. France had said that it would be
“most interesting” if and when Tenafly
decided to admit non-resident students on a
tuition basis, i.e., admission based on
individual tuition agreements with parents
outside the district as opposed to a
sending-receiving agreement with another
district. In 1982-1983, Tenafly instituted a
program to admit non-resident students to its
public schools, including THS, on a tuition
basis. When the program was adopted by
Tenafly, Cliffs began providing, upon
request, written instructions to the parents
of Cliffs' students as to how to apply to THS
for admission on a tuition basis, although it
did not provide such instructions for any
other school.
By 1983-1984 Cliffs had amassed
grievances against DMHS as follows:
declining attendance of Cliffs' students at
DMHS; the belief that DMHS was no longer an
effective school; Englewood's plan to begin
sending its eighth graders to DMHS, thereby
further alienating Cliffs' DMHS students
(because they would be at DMHS one year less
than Englewood's students); and Englewood's
failure to have discussed with Cliffs, in
advance, the policy of sending eighth graders
to DMHS. In November 1985, Cliffs voted to
enter into a sending-receiving relationship
with Tenafly; Tenafly reciprocated. Until
such time as Cliffs' sending-receiving
relationship with Englewood was terminated,
however, the THS policy was to accept Cliffs'
and other municipalities' students on a
tuition basis. The primary factors which THS
considered under its private admission
program were the academic, disciplinary and
attendance records of the applicants.
Tuition for 1987-1988 was approximately
$5,480.
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 students came
from Cliffs and 16 from Englewood.
D. Racial Composition and
Enrollment Trends at DMHS and THS
In general, public school enrollment was
down in all three districts and this trend
seemed likely to continue. Since 1977,
enrollment of Cliffs' students at DMHS
dropped dramatically and at a much faster
rate than the general decline in the
school-aged population. Having averaged
approximately 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
attended DMHS, of whom only 119 were from
Cliffs. In that year the DMHS student body
was 31.5% white, 55.5% black, 10.3% Hispanic
and 2.7% Asian. In 1987-1988, 799 students
made up the DMHS student body, of whom only
21 were from Cliffs. During that year, the
racial composition of the DMHS student body
had changed to 11.8% white, 66.2% black,
17.8% Hispanic and 3.9% Asian.
After Tenafly's non-resident private
admission program began in 1982, the number
of Cliffs' students attending THS rose
annually while the number of Cliffs' students
attending DMHS continued to drop. Table 1
sets forth the enrollment trend between 1982
and 1988:
TABLE 1
Cliffs Students Cliffs Students
School Terms Attending DMHS Attending THS
1982-1983 119 11
1983-1984 92 21
1984-1985 73 33
1985-1986 60 48
1986-1987 35 62
1987-1988 21 76
In addition, following the inception of
Tenafly's tuition program, the number of
non-resident tuition students from all
districts attending THS increased. By
1985-1986, THS had 74 non-resident students,
or roughly three times the number of
non-resident students enrolled in any other
high school district in the State. For
example, of the 43 high school districts
accepting non-resident students, only 16 had
more than five such students.
. . . .
Englewood's own students had,
increasingly over the years, chosen to go to
private schools rather than attend
Englewood's public schools. Private school
alternatives were readily available in the
area, including more than 20 non-public
secondary 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
relationship with THS and terminate its
sending-receiving relationship with
Englewood, Englewood argued that the issue
was not school quality but race. Englewood's
experts, 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
parents' selection. Englewood's experts
stressed the educational importance of racial
diversity in public schools.
A white Cliffs' resident, a 1986
graduate of DMHS, described her high school
experience and related that as an eighth
grader in Cliffs' upper school in 1982, she
regularly heard her classmates using terms
like "Dwight Nigger" and "Black Morrow" to
refer to DMHS students. She also described
the prevailing Cliffs' misconceptions 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 restrooms. On the contrary, she,
along 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.
. . . .
Much of the evidence indicated that if
Cliffs' parents were prevented from sending
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 “social pressure” on
Cliffs' students not to attend DMHS. On the
other hand, there was some evidence that
certain Cliffs' parents would still enroll
their children at DMHS and keep them enrolled
there if tuition relationships with THS were
enjoined (e.g., in 1988, 3 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
started DMHS in 1982, 23 graduated in 1986).
[257 N.J. Super. at 430-36.]
The Administrative Law Judge (ALJ), after a ninety-nine day
evidentiary hearing, found that Tenafly's tuition policy “has the
clear effect of enticing white and Asian students away from a
nearby public high school already experiencing racial imbalance,
thereby contributing to a polarized situation.” Id. at 442. He
observed:
[T]he Tenafly Board has a novel tuition
policy enacted to alleviate the adverse
effects of its own declining enrollment. As
applied to THS, the policy has many
characteristics of a private school
placement, including selective entry
requirements, higher academic standards and
payment of tuition. On its face the policy
may not be racially exclusive, but whites and
Asians, as a group, are better able to afford
the entry fee. In practice, the policy has
attracted a disproportionately high number of
students residing in the neighboring
communities of Cliffs and Englewood. Its
practical effect is to drain upper income
white and Asian college-bound students from
DMHS, subverting that school's efforts to
promote racial balance and luring many of its
most academically talented students.
Existence of the Tenafly tuition policy also
creates social pressures among Cliffs
students not to attend DMHS, even though it
is the assigned public high school for Cliffs
residents.
Factually it is immaterial to a
determination of this case how many tuition
students from Cliffs might decide to go to
private or parochial schools after the
Tenafly option is foreclosed. THS is not a
private institution, regardless of how it has
been conducting its affairs. While state
education officials do not have the authority
to prevent someone from attending a nonpublic
school, they do have unchallenged
constitutional and statutory responsibility
for supervising the public education system.
A pernicious practice in the public schools
cannot be allowed to continue unchecked
simply because otherwise some parents might
decide to remove their children from the
public school system. Fact-finding should
deliberately avoid any inquiry into what
choices parents might conceivably exercise if
the state's strong policy against segregation
in public schools is properly enforced.
Otherwise, the process may be misinterpreted
as tacit encouragement of flight from the
public schools in order to circumvent the
law. Thus, it is unhelpful--as well as
unseemly--to engage in a numbers game
regarding how many of the Cliffs or Englewood
students now or prospectively at THS would
otherwise go to DMHS. The key facts are that
THS enrolls 76 Cliffs students and 16
Englewood students who, by all rights, belong
at DMHS if they choose to attend public
school. Tenafly's tuition policy seriously
undermines the continuing ability of the
Englewood district to provide equal
educational opportunity to all its students.
. . . Tenafly has been fishing in troubled
waters. Bluntly stated, the Tenafly Board
has adopted a tuition policy which has the
clear effect of enticing white and Asian
students away from a nearby public high
school already experiencing racial imbalance,
thereby contributing to a polarized
situation. To accomplish its own ends, the
Tenafly Board has instituted selective
admissions requirements, including 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-skimming," the Tenafly tuition
policy achieves its intended purpose by
attracting more highly motivated and
academically competent students from its
neighboring school district, at the expense
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
efficient 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 accelerated.)
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 a halt
to the mischief it has made.
[Id. at 441-42.]
The Commissioner adopted the ALJ's fact-finding and legal
conclusions, and specifically agreed with the ALJ's determination
that Tenafly's practice of accepting Englewood Cliffs students on
a tuition basis should not be permitted to continue:
Although the policy is, on its face, 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 Englewood 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 exacerbate racial
imbalance at DMHS by skimming off and luring
students who are eligible to attend DMHS.
Thus, in that sense it is “repugnant” and a
“beggar-thy-neighbor” policy as it affects
DMHS.
[Id. at 445.]
The State Board affirmed and modified the Commissioner's
ruling, and its reasoning was summarized by the Appellate
Division in Englewood I:
The State Board concluded that there was
a cause and effect to this trend. Although
it found that Tenafly had not initiated the
tuition program with a discriminatory intent,
it opined that its powers were not limited to
cases involving evil motives. Acknowledging
that it had no affirmative obligation 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 accelerating 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 case. 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 remedies had at least the potential
for efficacy.
[Id. at 449-50.]
In Englewood I the Appellate Division, in affirming the
State Board's disposition, explicitly affirmed the findings of
the ALJ, the Commissioner and the State Board that the increased
segregation of Dwight Morrow was caused in part by Tenafly's
tuition policy and Englewood Cliffs Board decisions, both of
which had racial overtones and were inimical to the maintenance
of a racially balanced student body at Dwight Morrow:
Moreover, and notwithstanding that a
particularized finding of intentional
discrimination is not a prerequisite for
state remedies for racial imbalance, . . .
such findings are 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
circumvention of integration is not at play
in this case.” Likewise, the State Board
concluded that to deny relief here would be
to make the State a “passive participant” in
private discrimination. No more specific
findings are required. Under the
circumstances, the State Board's action
clearly passes strict scrutiny; it goes
without saying that the lesser burdens are
also met.
[Id. at 472 (citation omitted).]
Based on those factual determinations, the Appellate
Division sustained the State Board's injunction against Tenafly's
continued acceptance of tuition students:
Here, we have affirmed the State Board's
determination that the Tenafly tuition policy
had a serious negative impact on the racial
balance at DMHS. As Tenafly's non-indigenous
population increased, the situation at DMHS
worsened. Tenafly not only “lured” and
“enticed” Cliffs' students by its
“beggar-thy-neighbor” policy, and in doing so
syphoned off a disproportionate number of
high achievers, but also attracted 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 compelled
an injunction against Tenafly.
[Id. at 474.]
As noted, this Court affirmed and modified the Appellate
Division's earlier disposition. Englwd. Cliffs v. Bd. of Ed. of
Englwd.,
132 N.J. 327 (1993) (Englewood II).
The history of the litigation between our 1993 decision and
the State Board's 1997 and 1998 rulings is summarized by the
Appellate Division in Englewood III:
In January 1994, a new administration
took office and a new Commissioner of
Education was appointed shortly thereafter.
The new Commissioner decided to hire an
outside consultant to conduct a
regionalization study rather than to complete
the in-house study that had been started at
the direction of his predecessor. The new
Commissioner also decided to hire an outside
consultant to review efforts to develop a
voluntary, cooperative solution for the
racial imbalance problems at Dwight Morrow.
In December 1994, the Department of
Education contracted with Applied Data
Services to conduct a regionalization study
encompassing twenty communities in eastern
Bergen County, including Englewood, Englewood
Cliffs and Tenafly, and also contracted with
Dr. Harry Galinsky, a retired superintendent
of schools and the former president of the
New Jersey Association of School
Administrators, to assist those communities
in developing a cooperative plan to encourage
voluntary attendance at Dwight Morrow.
Both consultants submitted reports in
July 1995. The Applied Data Services' report
contained a number of alternative options for
the establishment of a regional school
district. The Galinsky report recommended
several alternative means of encouraging
students from Englewood Cliffs and other
districts to attend Dwight Morrow, including
the establishment there of a regional magnet
school.
In the fall of 1995, the Department
conducted public hearings concerning the
Applied Data Services and Galinsky reports.
Strong opposition to mandatory
regionalization was expressed at those
hearings.
Thereafter, a task force comprised of
superintendents and board members in eight
Bergen County school districts was
established to develop a locally supported
plan to address the problem of racial
imbalance at Dwight Morrow. The task force
submitted a plan, entitled "Dwight Morrow
High School: A University Partnership,"
which recommended a partnership between
Dwight Morrow and one or two universities or
colleges to create a magnet program that
would provide opportunities for Dwight Morrow
students to take college level courses for
credit. However, the Englewood Board
rejected the plan.
While the Department of Education was
conducting regionalization studies and
attempting to develop a voluntary,
cooperative solution to the problems of
racial imbalance at Dwight Morrow, Englewood
made a series of motions to this court for an
order mandating the regionalization of the
Englewood, Englewood Cliffs and Tenafly
school districts. All of the motions were
denied.
On February 5, 1997, the Commissioner
issued a report to the State Board concerning
proposals for the mandatory establishment of
a regional school district as well as other
proposals to improve the racial balance at
Dwight Morrow. The Commissioner concluded
that the State Board should not order
mandatory regionalization, but should instead
encourage school districts in the area to
devise a voluntary solution to the racial
imbalance problem at Dwight Morrow by means
such as the establishment of university-
affiliated magnet schools. The
Commissioner's report stated in part:
. . . .
Based on the past history of this
matter, I believe that involuntary
regionalization almost certainly would
not achieve the goal of improving the
racial balance among students attending
Dwight Morrow High School, but rather
would be more likely to cause additional
students to attend private schools or to
move to new districts. Thus, the result
would be additional segregation and an
increased sense of inferiority on the
part of students attending Dwight
Morrow.
I further recommend that the
Department of Education continue its
efforts to improve the quality of
education at Dwight Morrow High School
through vigorous implementation of the
provisions of the new funding law under
regulations of the State Board of
Education. In addition, I recommend
that the Department continue to
encourage the involved districts to
reach a voluntary solution to the
problem, through means such as the
university magnet school around which
considerable agreement already has
emerged.
[333 N.J. Super. at 375-77.]
C
The remaining elements of the factual record concern the
events that occurred subsequent to the State Board's decision of
October 7, 1998.
Although the State Board's October 7, 1998 decision required
that Englewood submit within two months an enhanced plan that
“must reasonably be expected to reduce the percentage of
minorities at Dwight Morrow over the next five years so as to
ultimately achieve a balance in the composite student body,”
Englewood's response of December 30, 1998 acknowledged that
Englewood had been unable to comply with the State Board's
demand. The Englewood response stated in part:
Accompanying this Response is a revised
magnet schools proposal for Dwight Morrow
High School. The revised magnet schools
proposal is not proffered as a plan that will
desegregate Dwight Morrow. It will not
achieve the level of desegregation that is
required. Rather, the revised proposal is
proffered as an educational enhancement plan
for a Dwight Morrow High School that will
remain racially imbalanced absent stronger
measures (i.e., absent regionalization). The
Englewood Board of Education and the
Englewood community wish to implement this
magnet proposal to enhance Dwight Morrow's
program. The current program at Dwight
Morrow is already a high quality program;
magnet programs would raise that quality to a
higher level of excellence.
Essentially, Englewood proposed to implement a modification
of its earlier “Englewood Achieves” proposal, that modification
consisting of three magnet school programs in Communications and
Arts, Applied Sciences and Technology, and International Studies
and Business, combined with an alternative program for students
not sufficiently advanced to enroll in one of the magnet school
programs. Englewood forecast that based on the most optimistic
projections there would be a twenty percent non-minority
population in the magnet school programs and slightly better than
a ten percent non-minority population in the composite student
body.
Englewood stated that it had applied to Bergen County for a
grant of $1,456,500 to fund program planning and infrastructure
changes required by its proposal, but contemplated receiving no
more than $1,000,000 from the County. It also required
additional funding of $911,500 for a six-month planning phase and
a one-year pilot program. That funding, together with the
shortfall anticipated in connection with the funding request to
the County, contemplated initial State funding of $1,368,000
through the first year pilot program.
The State asserts, through a certification by Thomas Henry,
employed by the Department of Education (Department) as Director
of the Office of School-to-Career and College Initiatives, that
the Department considered Englewood's submission to be
unresponsive because Englewood insisted that only a
regionalization remedy could desegregate Dwight Morrow. Henry
stated that the State Board then directed Department personnel to
develop a more effective magnet school proposal. That effort
commenced in May 1999, and resulted in December 1999 in a
“Request for Proposal” (RFP) prepared by the Department's staff.
That RFP proposed the conversion of Dwight Morrow into a “career
institute” by creating four career academies over the ensuing
four-year period, to be partially financed by $1,000,000 in
federal grant funds from the Department and $1,000,000 from
Bergen County. The County's share of the funding, however, was
conditioned on Englewood's termination of this litigation, a
condition to which Englewood refused to accede.
In February 2000, Englewood responded to the RFP, expressing
the view that the career academies would not end racial
segregation at Dwight Morrow and noting its preference that the
academies be part of a comprehensive high school, and not simply
replace the existing educational program. That response caused
the Department temporarily to withdraw the RFP.
In August 2000, the Commissioner informed Englewood that the
Department was willing to accept Englewood's response to the
Department's RFP as the basis for a two-year funding award from
the Department consisting of federal grant funds. Englewood
accepted that proposal and received $275,000 to assist in
establishing a career academy emphasizing business and finance.
A certification from Englewood's Superintendent states that
a pilot magnet program in International Studies and Business
began in September 2000, and enrolled twenty-six students, none
of whom were white or Asian. She stated that Englewood planned
to begin two additional magnet programs in September 2001, one in
Art and the other in Applied Sciences and Technology. She
asserted that Englewood would require approximately $32,000,000
to implement and operate additional and broader magnet programs
over a five-year period, but noted that the Department had
committed to date only $550,000 in funding over two years. In
response, the Department states that it had committed $1,000,000
in funding over four years and estimated that the operating cost
over a five-year period would not exceed $2,000,000. Based on
the record before us, Englewood and the Department apparently
arrived at an impasse over the cost and availability of funding
for the proposal to develop a combined career institute and
comprehensive high school at Dwight Morrow.
Fortunately, subsequent events appear to have made that
impasse irrelevant and redirected the parties' efforts toward a
different plan for resolving segregation at Dwight Morrow. A
July 26, 2001 letter from Dr. Henry to the Superintendents of
Englewood and the Bergen County Technical Schools District
suggested that they explore a partnership pursuant to which the
Bergen County Technical School (Bergen Tech) would offer some of
its academy programs at Dwight Morrow. That proposal was
received enthusiastically by both Superintendents. Shortly
thereafter, several members of the Englewood Board of Education
visited the campus of the Bergen County Technical Schools
District and were favorably impressed with its facilities and
programs. Subsequent meetings ensued involving the Commissioner,
Departmental staff and representatives from Englewood and the
Bergen County Technical Schools District, resulting in an
agreement among those parties to pursue the possibility that
commencing September 2002, Bergen Tech would offer some of its
academy_type programs at Dwight Morrow to a sufficient number of
students from high schools throughout Bergen County so as to
significantly diminish the racial imbalance at Dwight Morrow. At
oral argument counsel for Englewood and the State Board
reaffirmed that this proposal was being carefully studied, and
the Deputy Attorney General represented that the Department was
prepared to provide the necessary funding for the preliminary
planning and other initial steps required to implement the
proposed partnership. The Court has been informed subsequent to
oral argument that the Department has agreed to provide $385,000
to cover start-up costs for the program to be incurred between
November 15, 2001 and August 31, 2002.
II
Concerning the narrow legal issue before us _ the
appropriate allocation of responsibilities between the
Commissioner and Englewood in developing and implementing a
voluntary plan to achieve an appropriate racial balance and
educational quality at Dwight Morrow _ we are satisfied that the
issue previously has been resolved in this litigation and that
that resolution constitutes the law of the case and binds all
parties.
In its 1990 decision in this litigation, affirming and
modifying the Commissioner's disposition, the State Board
repeatedly and expressly acknowledged that it had the
“responsibility to exercise fully our jurisdictional authority
with respect to the public school system so as to remedy this
situation.” Id. at 690. That determination was affirmed by the
Appellate Division, Englewood I, supra,
257 N.J. Super. 413, and
by this Court, Englewood II, supra,
132 N.J. 327 (1993).
Accordingly, we regard the State Board's earlier determination as
binding under the law of the case doctrine. See Abbamont v.
Piscataway Tp. Bd. of Educ.,
163 N.J. 14, 14-15 (1999); Feldman
v. Lederle Laboratories,
125 N.J. 117, 132 (1991).
In its 1990 decision, the State Board forcefully and
consistently acknowledged its ultimate responsibility to take
action to correct the racial imbalance that had developed at
Dwight Morrow. The Board noted:
In sum, given the balance between racial
and national origin groupings that would
exist were we to permit termination of the
sending-receiving relationship between
Englewood and Englewood Cliffs and the
negative educational implications thereof, we
deny Englewood Cliffs' petition. Such a
limited ruling, however, would do nothing to
correct the imbalance that has developed at
Dwight Morrow over the last five years. We
believe that we would be denying both our
authority and responsibility for proper
implementation of our State's educational
policies were we to sanction this imbalance
by failing to take such steps as are
necessary to correct it.
. . . .
In short, the record shows clearly the
trend toward withdrawal from the Englewood
school community by members of the white
majority from both Englewood and Englewood
Cliffs during the relevant period. As a
result, the proportion of Dwight Morrow
student population that was black or Hispanic
rose from 65.8% in 1982-83 to 84% by 1987-88.
Under these circumstances, we cannot give
State sanction to the continued admittance of
increasingly large numbers of white students
from Englewood and Englewood Cliffs by a
neighboring district to its public high
school where the school pupil population is
already 80.7% white and but 1.5% black or
Hispanic.
Given the circumstances with which we
have been presented, we have the
responsibility to exercise fully our
jurisdictional authority with respect to the
public school system so as to remedy this
situation. We conclude that the first step
in achieving the kind of balance which would
effectuate our State's policy is for the
State Board of Education to direct such
measures as will ensure that high school age
students from Englewood and Englewood Cliffs
will attend Dwight Morrow, their assigned
school, if they attend public school. We
therefore conclude that it is necessary to
limit the discretion of other public school
districts, including Tenafly, to accept high
school students who are residents of
Englewood or Englewood Cliffs on a tuition
basis or otherwise.
. . . .
We repeat that, as established by Booker
and Jenkins, our State's policy against
discrimination and segregation in the public
schools is of such vigor and import as to
match its policy in favor of a thorough and
efficient education. Accordingly, where a
question involving the exercise of discretion
by a district board is brought before this
agency, the Commissioner and the State Board
of Education have both the power and
responsibility to limit the exercise of that
discretion, and, where reasonable and
feasible, to direct such remedy as necessary
to effectuate our State's policy.
Furthermore, there is no question that
the Commissioner and the State Board have the
responsibility to counter trends toward
withdrawal from the school community by
members of the white majority. Consequently,
we must have the accompanying power to limit
the exercise of discretion by district boards
to the extent necessary to counter such
withdrawal.
. . . .
We recognize that, as established below,
Tenafly did not act with discriminatory
intent in adopting its tuition policy or in
admitting nonresident students under that
policy. We find nothing, however, under
State or federal law that would limit the
exercise of authority by this agency to
situations where a district board has acted
with discriminatory intent. To the contrary,
we believe that both the Commissioner and the
State Board have an affirmative obligation to
take such steps as are necessary to correct
an imbalance brought before us where, as
here, our failure to act would make us a
passive participant to the perpetuation of
that imbalance.
[Englewood Cliffs Bd. of Educ. v.
Englewood Bd. of Educ.,
12 N.J.A.R.
566, 689-92 (emphasis added)(citations
omitted).]
Although presented to us as a sending- receiving case, this matter has raised questions of fundamental State policy and this agency's responsibilities thereunder. It has been twenty years since our State Supreme Court has had the occasion to confront such questions in the context of public education. Furthermore, as previously discussed, articulation of our State's constitutionally-derived policy has occurred almost exclusively in a single district setting. While much progress has been made in effectuating our State's policy in that particular setting, that policy has not found judicial, legislative or administrative expression in a multi-district context. By