There was progress recently in a closely watched (and hopeful) school segregation lawsuit against the state of New Jersey, filed by a diverse coalition led by the Latino Action Network and the New Jersey NAACP (full complaint here). After a failed attempt at an out-of-court settlement and delay from the state (more about that below), opening statements began earlier this month. Unless settlement talks resume again (as urged by the judge), this is expected to be a lengthy trial with the potential not only to dramatically reshape public education in New Jersey, but also to serve as a model for segregation remedies in other states. In addition to the update about the case, I’m excited to share an SD Notebook-exclusive video with Gary Stein, a lead counsel for the organizations who filed the case. 

I wrote about the lawsuit when it was first filed, in May 2018 on the 64th anniversary of Brown. Here’s my summary of it from that post:

“NJ is the 6th most segregated state for Black students and 7th for Latinx students. In response, the Latino Action Network and the NJ NAACP filed suit on the 64th anniversary of Brown last week. The suit is specifically focused on state laws that (a) require students to live in the town where they attend school (for traditional public schools) and (b) require that charter schools give preference to students who live in the charter’s home district. The plaintiffs argue that residency requirements (or, for charters, preferences) essentially guarantee schools will be segregated, given housing segregation across NJ’s many small towns. If the suit is successful, the state’s ed commissioner and governor would have three months to come up with remedies. There’s considerable reason for hope: NJ’s constitution actually prohibits segregation of any person “in the public schools, because of religious principles, race, color, ancestry or national origin.” And, NJ courts have also ruled against so-called de facto segregation, which is much more immune to legal remedy at the federal level. For a more detailed summary, I definitely recommend checking out the always-great Ed Law Prof Blog.”

Today, on #Brownat64, @eliseboddie, @NJ_ISJ trustee, @Rutgers_Newark law professor, @NAACP_LDF alum & elite lawyer, led the effort to file a historic case to address the unfinished business of Brown in New Jersey, one the most segregated states in America: https://t.co/iOgX0xtTut pic.twitter.com/tpgUIT7I86

— Ryan P. Haygood (@RyanPHaygood) May 18, 2018

One year later, plaintiffs ended settlement negotiations after the state failed to respond with “a sufficient degree of participation to make discussions worthwhile.” Since then, the suit has been slowly moving its way towards trial, but the state has repeatedly put up roadblocks. A key argument (and delay tactic) from the state: it asked the court to add roughly 585 schools districts as parties to the case. For example, in the opening statements earlier this month, the state’s lawyer argued that:

• “The action cannot continue without the participation of each of the state’s individual school districts, who have a real and substantial interest in the disposition of this case”

As argued by the plaintiffs, this seems unnecessary in a case that hangs on protections guaranteed in the state constitution. (It’s particularly upsetting to see this kind of thing from a Democratic governor, who was elected with a progressive reputation.) At the hearing, the judge found a sort of middle ground: although she will not admit every school district as a formal party to the case, she asked that the districts be formally invited to share background info to help the court understand the local circumstances that contribute to statewide segregation statistics. 

In response to state inaction, plaintiffs published an open letter in a major state paper that puts pressure on state leaders to cooperate with the suit. The letter argues that “segregation in New Jersey is not by choice,” but is instead the result of decades of policy that created segregated suburbs, combined with New Jersey law that requires students to attend public school in the towns where they live. Specifically, the letter urges the public “to lift up your voices and call Governor Murphy at (609) 292- 6000. Tell him that his Administration should work to ensure that the promise of Brown is finally realized in the Garden State.” 

The trial now enters the “discovery phase” where the state will hire outside experts to review segregation statistics and offer “other explanations for the data,” though it’s hard to tell what those other explanations might be. It’s expected this could take “months or longer.” Indeed, as noted by the plaintiffs, the judge appears reluctant to issue a ruling “under anything but a full record” as she clearly understands that this is “a truly momentous case.” 

State lawsuits for school integration are extremely rare, as these cases have historically been heard in federal court. Though, state-level lawsuits can be an important vehicle for progress. In New Jersey, specifically, the state constitution has been used as grounds for requiring that all towns take on their fair share of regional affordable housing needs (known as the Mount Laurel Doctrine). Outside of New Jersey, school integration advocates in Connecticut’s Sheff v. O’Neill case came to a new settlement, which created 1,000 new seats in the region’s magnet program as well as providing over $1 million for improving curriculum and student recruiting at magnet schools. And, that just happened last week! These cases are joined by a lawsuit in Minnesota challenging segregation driven by charter schools in the Twin Cities.

If the plaintiffs in New Jersey are successful, it could offer a sort of roadmap to advocates in other states, especially important in the era of Trump-appointed federal judges. Even if the case doesn’t lead to similar litigation, its remedies could inspire policy change. For example, if the court were to require cross-district integration as a remedy, it would provide a unique opportunity to test/refine this policy as a vehicle for integration; such wide scale policy implementation is rare in school integration efforts and would provide enormously useful information to districts interested in voluntary (i.e., not court ordered) school integration. (And, there are many!) Not to mention the fact that any remedy could dramatically expand educational opportunity for generations of public school students in New Jersey.

I talked about the case last year with Gary Stein, who has a long and esteemed history in New Jersey public education litigation. Most notably, he was a Justice on the NJ Supreme Court during the landmark Abbott rulings, which required that the state dramatically increase funding for under-resourced schools. As mentioned above, he’s chairman of the group filing the new lawsuit.  

I met Justice Stein through the Brown@65 conference that I helped to organize at Penn State’s Center for Education and Civil Rights, near the 65th anniversary of Brown. He was presenting on the lawsuit, and he was kind enough to record a short interview with me on the night before the conference. Other presenters recorded as well, and though I’ve been excited to post these, I’ve repeatedly had to push it back as various school segregation events/stories have cropped up. This obviously seemed like a good reason to go back to Gary Stein’s video. 

In it, Justice Stein talks about the pressures that limited the state in settlement negotiations, which were breaking down around the time that we recorded. He also talks about strategies for addressing segregation if the plaintiffs were to be successful, including an expansion of magnet schools (as in Hartford, which is facing a legal challenge of its own) or cross-district integration (such as a larger version of MA’s METCO program). Looking towards the future, he offers hope in what could really be a mantra for the current era of school integration: “Once we begin to make progress, people in the suburban districts will begin to realize that this is the way schools need to be organized in contemporary society.”

Update: In light of the protests following George Floyd’s murder, Justice Stein wrote an op-ed calling for the NJ Governor and Attorney General to stop efforts at delaying the lawsuit and instead work with advocates to remedy policies that preserve racial segregation in schools and society.