No one is disproving the conspicuous numbers.
On average, about 25% of Black students in New Jersey have attended public schools since 2015 that were 99% non-white.
About 40% of white students went to schools that were more than 75% white. And 62% of Latino students learned in buildings where their classmates were more than 75% non-white.
But is that data evidence of a statewide system of de facto school segregation, as plaintiffs suing New Jersey allege? Or could it be the result of housing choices and the locations of private schools, as a state lawyer suggests?
State Superior Court Judge Robert T. Lougy heard oral arguments Thursday in a case that will be either a landmark victory for civil rights advocates or a setback for future generations of Black and Latino students who want to attend integrated schools.
“It is about racial justice in a state that congratulates itself on being fair and just and egalitarian, but is in fact among the worst in the nation when it comes to the segregation of our public schools,” argued Lawrence Lustberg, an attorney for the plaintiffs, who include nine children, the NAACP and the Latino Action Network.
Though the majority of New Jersey’s school-age population is non-white, the state’s schools remain staggeringly segregated, the suit alleges.
New Jersey is America’s sixth-most segregated state for Black students and the seventh-most segregated for Latino students, according to a 2017 analysis by the Civil Rights Project at UCLA. Because of the dearth of affordable housing outside low-income urban areas, many minority children are subject to de facto segregation, something the state Supreme Court has already ruled unconstitutional, the suit contends.
The lawsuit, filed in 2018, is coming to a head after a national reckoning with racism put a spotlight on redlining, exclusionary zoning and other root causes of housing segregation that directly affect what public schools children can attend. Advocates initially hoped Democratic Gov. Phil Murphy’s progressive administration would settle the suit and work toward addressing segregation through new magnet schools or inter-district choice programs.
But deputy state Attorney General Christopher Weber argued Thursday in the virtual hearing on a motion for summary judgment that the plaintiffs are using “a small sample of raw demographic data” rather than robust evidence to prove de facto segregation. The plaintiffs don’t define segregation, let alone prove it, he said.
“Our Supreme Court has made it very clear that there is no magic number or breakline rule at which integration of segregation can be pinpointed,” Weber said. “Instead, that analysis demands an understanding of a variety of factors. It demands an analysis of access to affordable housing and transportation and other socioeconomic factors.”
In a brief filed with the court, the state argued that “impractical does not even begin to describe” the challenge the state would face if the plaintiffs prevailed.
“There is no statewide instant fix,” the state argued. “The entire education system in New Jersey would have to be razed to the ground and then rebuilt brick by brick — figuratively and most likely literally as well.”
The state also argued there is cultural diversity even in schools that are predominantly Black or Hispanic. For example, African, Caribbean and South American immigrants can self-classify as Black, as well as multi-generational African-Americans and a growing Haitian population in New Jersey, Weber argued in the brief.
The attorneys for the plaintiffs have failed to prove that students in predominantly Black or Hispanic schools are not receiving the “thorough and efficient” education required by the state constitution, Weber said.
Lustberg, a prominent attorney who argued New Jersey’s high-profile same-sex marriage case in state court, countered each of those points.
The idea that students aren’t being segregated because they are potentially receiving a good education amounts to arguing that “separate but equal” is not constitutionally problematic, he said. The remedy for de facto segregation does not require completely rebuilding the school system, but rather smaller changes, he said.
And the state’s argument that cultural diversity exists even within predominantly Black schools does nothing to change the long history of discrimination over skin color that segregation is based on, he said.
“The state today embarks on a whole new path to defend segregation,” Lustberg said. “Trying to make new law by saying Blacks are not Blacks, you have to break them down to Caribbeans and Africans. Latinos and Latinas. You have to break them down to Hondurans and Guatemalans and Panamanians and Mexicans. It goes on and on. But that is inconsistent with history. And it’s even more inconsistent with common sense.”
The lawsuit argues that the state has allowed segregation by requiring students (with few exceptions) to attend schools where they live. The lack of integration stems from residential segregation in New Jersey, school district boundaries in a state with more school districts than municipalities, and the high correlation between race and socioeconomic status, the suit claims.
The plaintiffs are asking Lougy for a summary judgment that de facto segregation exists in New Jersey schools. That ruling would then allow both sides to work together on a remedy, said former state Supreme Court Justice Gary Stein, who helped spearhead the legal challenge.
Lougy’s decision on the motion will likely take weeks, if not longer, Stein said.
The goal is not mandatory busing or forced acceptance of students from other school districts, Stein said. Instead, the plaintiffs hope to achieve an array of options that include regional magnet schools or voluntary transfer programs that allow students in predominantly minority districts to attend other schools.
An integrated education is beneficial for students all of races, Stein said.
Murphy’s administration has said in the past that the state “must combat the deeply rooted problem of segregation.” And the state recognizes the value of an integrated education, Weber said Thursday.
The plaintiffs acknowledge there are school districts in New Jersey that are integrated, Lustberg said. But without legal action to compel change, too many schools in New Jersey will remain segregated, he argued.
“This problem has existed for generations,” he said. “And no one has done anything about it.”
Our journalism needs your support. Please subscribe today to NJ.com.
Adam Clark may be reached at aclark@njadvancemedia.com.