Law & Courts

State Judge Says ‘Racially Isolated Districts Persist’ in New Jersey

By Mark Walsh — October 17, 2023 7 min read
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National civil rights advocates are hailing a New Jersey state judge’s ruling as opening a potential new era in desegregation efforts focused on state rather than federal courts.

The judge allowed key claims to proceed in a lawsuit that seeks to hold the state of New Jersey responsible for remedying racial segregation in its public schools.

“I think this is a very important case,” said Gary Orfield, the co-director of the Civil Rights Project at the University of California, Los Angeles, and one of the nation’s foremost scholars on school segregation. “I think it is very logical for the civil rights advocates to turn to the state courts to enforce rights in state constitutions, especially when we have a very conservative U.S. Supreme Court. The door is closed there.”

In his Oct. 6 ruling in Latino Action Network v. New Jersey, Mercer County Superior Court Judge Robert Lougy ruled on an ambitious lawsuit filed in 2018 by civil rights groups that included the NAACP New Jersey State Conference. The suit argues that the state had failed to fulfill its obligations under a state constitutional provision barring segregation in public schools based on race or ancestry and various statutes.

The judge called the lawsuit one of “unprecedented scope,” and he rejected several of the suit’s claims, including that the entire state public school system be declared segregated. But citing numerous statistics and expert testimony, about racial isolation for Black and Latino students, Lougy denied the state’s motion for summary judgment on the claim that segregation exists in a significant number of school districts.

“Plaintiffs allege with sufficient specificity that defendants intentionally failed to exercise their constitutional obligations and authorities to remedy segregation,” the judge said. “The problems of racially isolated districts persist, and plaintiffs adequately allege that defendants … have failed to take sufficient steps to remedy that segregation.”

New Jersey has close to 700 school districts—many of them small and contiguous with the state’s cities and towns—that serve 1.3 million students.

To some advocates, a new path for desegregation litigation

Several advocates in New Jersey and nationwide hailed the ruling.

“The court said the plaintiffs made their allegations with sufficient specificity, and the state is empowered to remedy segregation,” said Elise C. Boddie, who is consulting with the plaintiffs as a law professor. She recently moved to the University of Michigan from Rutgers University, in New Jersey, where she worked for the Center on Law, Inequality, and Metropolitan Equity. “This is a good indication the court recognized the importance of these claims.”

Lawrence S. Lustberg, a Newark, N.J., lawyer who is the lead counsel to the plaintiffs, had a more measured reaction to the ruling, given that the judge rejected the statewide segregation claim as well as others, such as one involving socioeconomic segregation.

“We won something, but this feels like a game where we won, but somehow at the end, the refs declared a draw,” said Lustberg, who plans to seek permission to appeal on the issues the plaintiffs lost.

The New Jersey attorney general’s office said via email that “we are still reviewing the decision and do not yet have a comment.”

In court papers and a key hearing before Lougy last year, the state argued that the plaintiffs were seeking “an extraordinarily novel application” of the state constitution’s anti-segregation clause.

While the clause has previously been used to target “segregated schools in a single district or a small number of districts with an existing send-receive or regional relationship, plaintiffs ask this court to use the clause to make a wholesale, statewide declaration that New Jersey’s schools are unconstitutionally segregated,” the state said.

In the court hearing in March 2022, Deputy Attorney General Christopher Weber argued that under the plaintiffs’ definition of segregation, “you [could] have a situation where a school is 20 percent white, 20 percent Black, 20 percent Latino, 20 percent Asian, and 20 percent Native American and Pacific Islander, and under their theory of the case, that would represent segregation.”

Plaintiffs cite statistics on racial isolation

The plaintiffs’ lawsuit relies on statistics for the 2016-17 school year, when New Jersey’s public school enrollment of 1.4 million students was 45.3 percent white, 27.1 percent Latino, 15.5 percent Black, 9.9 percent Asian, and 2.1 percent other.

According to the suit, about one-quarter of all Black students attend public schools that are at least 99 percent nonwhite. Some 58.6 percent of Latino students attend schools that are more than 80 percent nonwhite.

The suit identified 23 school districts with high percentages of Latino, Black, or Latino and Black students where more than 60 percent of the students qualified for free or reduced-price lunch.

Lougy held that the plaintiffs’ claim for the entire state system to be declared segregated could not be allowed to proceed.

“The court remains unconvinced that the claim can be alleged, proven, and adjudicated at a statewide level based solely upon the enrollment data and plaintiffs’ expert testimony,” the judge said. “The data does not demonstrate statewide unconstitutionality, across all districts, across all regions.”

But he also rejected the state’s effort to toss the more narrowly defined segregation claims. The state’s arguments “are ultimately unpersuasive, and their own expert acknowledges that 6 percent of schools in the state are racially isolated, where a single race or ethnicity makes up 90 percent or more of a student body,” Lougy said. “Thus, while plaintiffs have not demonstrated that the entire system is constitutionally repugnant, that shortcoming may be a question of scale, and defendants fail to prove that they are entitled to judgment as a matter of law.”

Lustberg, the lead lawyer for the plaintiffs, said he will seek an appellate court review of the statewide segregation claim.

“The court held we showed terrible segregation, but then said you haven’t shown it everywhere, so we’re not going to award statewide relief,” he said. “We think that is just wrong.”

Lougy made clear that his ruling at this stage involved only the potential liability of the state, and questions about how unconstitutional segregation would be remedied were complex and would be addressed at a later time.

Looking to a pending case in Minnesota

While New Jersey is one of the few states to have a state constitutional provision against school segregation, civil rights advocates said the recent ruling could prompt similar efforts in other states.

“This is one of the only statewide desegregation cases in recent memory,” said Robert Kim, the director of the Education Law Center in Newark, which works on school equity issues and also is advising the New Jersey plaintiffs. “This is bringing desegregation back into the national conversation.”

The U.S. Supreme Court hasn’t issued any merits ruling in a school desegregation case since 2007, when it curtailed voluntary race-conscious plans for assigning students to schools in Parents Involved in Community Schools v. Seattle School District.

The conservative dominance of the current court, which just this year ended affirmative action in college admissions as it had been practiced for some 50 years, gives civil rights groups pause about looking to the federal courts for fresh efforts to end racial isolation.

Steven L. Nelson, an associate professor of education policy at the University of Nevada, Las Vegas, said state courts might provide a more receptive venue for desegregation cases based on state law claims the way the fight for more equitable school finance moved to the state courts after the Supreme Court ruled in 1973, in Rodriguez v. San Antonio Independent School District, against federal legal claims over school funding.

“I think state courts might be the place where people can make up some ground” in desegregation efforts, Nelson said.

Kim of the Education Law Center said he is keeping his eye on a case pending before the Minnesota Supreme Court involving claims against the state that de facto segregation based on race and socioeconomic status violates the state constitution’s education clause. The state high court heard arguments in May, and a decision is pending.

“It’s great to have the courts back in the conversation about racial isolation in public schools,” Kim said, noting that the New Jersey and Minnesota cases are based on “current de facto segregation in public schools.”

They’re “not based on long-standing desegregation cases from the civil rights era being monitored by a federal court,” he said. “It’s really great to have state courts back in the conversation. If we can be successful in one case with a modern judicial response, I think that opens up a long dormant pathway for others to consider the impact of desegregation in their states.”


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