New Jersey's Apartheid and Intensely Segregated Urban Schools: Powerful Evidence of an Inefficient and Unconstitutional State Education System
Paul Tractenberg Gary Orfield Greg Flaxman
Institute on Education Law and Policy
1 October 2013
INTRODUCTION: In 1875, New Jersey’s legislature and citizenry committed themselves constitutionally to a “thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”
The fact that this education clause was placed in the Taxation and Finance article of the state’s constitution and imposed responsibility on the legislature to provide for the “maintenance and support” of the statewide public education system made clear that funding was considered a key part of the state’s responsibility. Yet, it has taken more than 40 years of litigation, still ongoing, in the state courts to assure that New Jersey’s poorest urban school districts have adequate funding to try to meet their weighty educational obligations.
New Jersey also was one of the first and only states, through statutes, constitutional provisions and implementing judicial decisions, not only to bar segregation in the public schools, but also to affirmatively require racial balance wherever that was feasible. In fact, mainly in the 1960s and early 1970s the New Jersey courts went far beyond the federal courts in addressing racial separation in the schools. Despite the towering emblematic significance of Brown v. Board of Education, federal law bars only formal de jure (by law) segregation and not de facto (by fact or circumstance) segregation; it limits desegregation remedies to culpable districts, thereby largely precluding meaningful multi-district or metropolitan relief. In both regards, New Jersey has gone further.
Unlike the school funding litigation of Robinson v. Cahill and Abbott v. Burke, which has produced massive equalizing funding for poor urban districts, however, New Jersey’s uniquely strong state law regarding racial balance in the schools has not been seriously implemented for the past 40 years. In the words of a former chief justice of the state supreme court in 2004, "[w]e have paid lip service to the idea of diversity in our schools, but in the real world we have not succeeded."1 As a consequence, the nation’s leading researcher on school segregation, Professor Gary Orfield, co-director of the Civil Rights Project at UCLA, has regularly labeled New Jersey’s schools as “hyper-segregated.”
In a new report, the Project describes in detail the slightly improved but still desperately inadequate state of New Jersey’s school desegregation. In this related, but narrower, report, co-developed by Professor Orfield’s Civil Rights Project and the Rutgers-Newark Institute on Education Law and Policy, we zero in on a particular aspect of New Jersey’s school segregation—the degree to which it creates enormous headwinds for the state’s poor urban school districts. In effect, the educational success of the school funding litigation is being undermined by the extent to which the poor urban districts are overwhelmingly populated by low-income children of color with vastly greater educational needs than the norm. And they are living in an extraordinary state of isolation, which does not bode well for our state and society.
This is hardly a new or unnoticed phenomenon, though. It actually played a key role in the New Jersey Supreme Court’s constitutional analysis in Abbott v. Burke. In perhaps the most moving and eloquent statement in the entire litigation, then Chief Justice Robert Wilentz concluded his opinion for a unanimous court in Abbott II in 1990 with these words:
In addition to the impact of the constitutional failure on our economy, we noted the unmistakable further impact of the fact that soon one-third of our citizens will be black or Hispanic, many of them undereducated, isolated in a separate culture, affected by despair, sometimes bitterness and hostility, constituting a large part of society that is disintegrating, which disintegration will inevitably affect the rest of society. We noted that "(e)veryone's future is at stake, and not just the poor's. Certainly the urban poor need more than education, but it is hard to believe that their isolation and society's division can be reversed without it."
Our ultimate constitutional focus, however, must remain on the students:
This record proves what all suspect: that if the children of poorer districts went to school today in richer ones, educationally they would be a lot better off. Everything in this record confirms what we know: they need that advantage much more than the other children. And what everyone knows is that -- as children -- the only reason they do not get that advantage is that they were born in a poor district. For while we have underlined the impact of the constitutional deficiency on our state, its impact on these children is far more important. They face, through no fault of their own, a life of poverty and isolation that most of us cannot begin to understand or appreciate.
More than 23 years later, the proportion of our population that is black and Hispanic has far surpassed one-third and will soon reach one-half. Yet, to an alarming extent, this growing sector still endures lives of “poverty and isolation that most of us cannot begin to understand or appreciate.”
Download this report in its entirety below: