Booker v. Board of Education of City of Plainfield

Hall, J.

(concurring in part and dissenting in part). While I agree that this case should be remanded for reconsideration at the administrative level, I would do so on quite a different thesis than I understand the majority to dictate. My difference of view arises from its conception and treatment of the basic issue in the case. Involved in this difference is the even deeper question of the proper role of the judiciary *182 in the resolution of the complex, difficult and important matter of racial imbalance in public schools. It is appropriate that these fundamentals be carefully examined since this is the first case to come to this Court dealing with the obligation of school authorities to remedy racial imbalance, i.e., a proceeding to compel initial or additional action, as distinct from a challenge to steps voluntarily taken in that direction (without regard to whether the particular situation was such that some action could have been compelled) on the ground that other alleged rights were violated thereby. The latter category of litigation is exemplified by Morean v. Board of Education of Town of Montclair, 42 N. J. 237 (1964), and Schults v. Board of Education of the Township of Teaneck, 86 N. J. Super. 29 (App. Div. 1964), affirmed 45 N. J. 2 (1965).

The basic issue posed by the petitioners is essentially an abstract one on a constitutional plane. The thesis boils down to a claim of denial of equal protection under the Fourteenth Amendment of the United States Constitution and a denial of a civil right under Art. I, par. 5, of the New Jersey Constitution when, solely by reason of attendance zones based on residence, the large majority of Negroes attend one set of schools in a municipality, the large majority of whites attend another set, and the percentage of Negro pupils in one or several schools exceeds that of white pupils to some degree. The contention is that such a situation amounts, ipso facto and with little regard to the actual degree of the imbalance in a particular school, to a denial of equal educational opportunity, which is equated with equal protection of the laws, and to “segregation in the public schools” within the prohibition of the state constitution, and requires corrective action in that fashion which will accomplish the greatest dispersal of the races.

It should be noted that no claim is made that the racial composition of the Plainfield schools has resulted from any invidious action, or indeed nonaction, of the Board of Education in prescribing attendance zones. In other words, the *183 pupil composition of the individual Plainfield schools when this litigation was commenced was noit determined on the basis of race. Nor is it contended that the Board has callously-ignored the situation. In fact, it is evident that the attitude has rather been one of alertness and activity, whether or not ■one agrees with what was done, making due allowance for the immense ramifications of the problem in the light of the Board’s manifold responsibilities for the proper administration of the entire school system of the city and the highly uncertain state of the law during the period. The point urged is rather that the Board has not gone as far in the measures undertaken as it is legally compelled to. It may be further noted that there is nothing of value in this record to support any charge that the Board or the professional administration has been discriminatory in the spending of available funds, the providing of physical equipment or the assignment of staff with respect to elementary schools where Negro pupils are in the majority, and such a charge is in fact not seriously advanced.

The foundation for “denial of equal educational opportunity” is expressed in petitioners’ contentions contained in the stipulation upon which the case was submitted to the Commissioner :

“• * * the color distribution of elementary school pupils which are predominantly Negro, or nearly so, tends to produce a sense of stigma and a feeling of inferiority in the minds of Negro pupils and their parents, results in an undesirable effect upon their attitudes toward education, and interferes with successful learning.”

This concept had its legal origin in Brown v. Board of Education of Topeka, 347 U. S. 483, 494 , 74 S. Ct. 686 , 98 L. Ed. 873, 880-881 (1954), where, however, the United States Supreme Court was dealing with state enforced separation of school children solely because of their race and rejecting the prior “separate but equal” doctrine.

The Commissioner has concurred in this proposition, with respect to a school “whose enrollment is completely or almost *184 exclusively Negro,” as a sound and correct educational tenet and as a declaration of state policy, by his opinion in Fisher v. Board of Education of Oily of Orange, handed down about six weeks before his decision in the instant case. There can be no quarrel with this sound and salutary conclusion, whether it be based on evidence received in other litigation before the Commissioner or on his own expertise. He and the State Board of Education applied the same principle here in sustaining the Sixth Grade Plan as an appropriate means of correcting the extreme imbalance in the Washington School.

The emphasis in this approach is, of course, educational, founded on a psychological base, with any legal connotations deriving therefrom. Put in another way, it would seem that the fundamental of the proposition is that variation of an otherwise proper pupil assignment method should be compelled, where race is involved, only when the racial composition of the school results in an educational detriment, in the broadest sense of that term, and in order to serve an edueational purpose. It seems to me further implicit in this approach that consideration of corrective measures also involves matters of practicality and the balancing of many things before a particular remedy can or should be ordered. There undoubtedly are situations where the racial composition of a particular school or group of schools is such that reassignment of pupils is educationally called for but where there just is no realistically or practically possible solution available or where the over-all disadvantages of a solution completely overbalance desirable benefits.

I am convinced that this approach is the only sound and proper one from every angle, including the legal one, and further that its 'implementation belongs in the first instance with school authorities at the local and state levels rather than with the courts. I for one, and I would think judges generally, have no special competence and courts have no proper function in matters of educational policy or the manifold details of school administration. These belong with the local school board and the state education department. The *185 judicial role should be confined to its usual one of review of administrative action, deciding only whether that action is legally or factually unreasonable or arbitrary.

As I read the Commissioner’s opinion, he did not, however, expressly decide whether denial of equal educational opportunity in the sense outlined above, results where the Negro pupil percentage is less than total or almost so. The State Board in its opinion says the Commissioner held that such lesser percentages in several Plainfield schools did not in fact result in deprivation of equal educational opportunities calling for any remedial action with respect to those schools. Any such thought has to come from the Commissioner’s failure to mention the matter and I am not convinced that he passed on it at all. It does seem to me that this question of what percentage level of Negro pupils in a school results in such denial of equal educational opportunity and requires local corrective measures is the initial and real question in this ease and that it has to be decided at the state administrative level before the sufficiency of the Sixth Grade Plan may be properly evaluated there or in the courts. It appears not unreasonable for an educational layman to think that something less than 95% of Negro pupils might well produce the same educationally damaging stigma of racial inferiority. On this score, it may be parenthetically observed that petitioners’ counsel conceded at oral argument that, if this question were the vital one, some arbitrary mathematical line would have to be drawn, but he could place it no more definitely than at that point where a particular school bears the community connotation of a “Negro” school. He indicated that such a point would not be reached until the enrollment was somewhat more than 50% Negro and that in Plainfield a school with 75% Negro pupils would certainly carry the stigma.

The rationale of the majority, on the other hand, which substantially follows the petitioners’ thesis previously summarized, is quite different. While it has to start from the same place — that a predominantly Negro student body in a school interferes with successful learning and attitudes by *186 reason of a sense of stigma and feeling of racial inferiority and so denies equal educational opportunity — ■, it in effect treats the application of that concept as nearly an automatic legal matter rather than as a factual educational one. The whole tone of the opinion indicates that any feasible plan of pupil reassignment which will produce the greatest racial dispersal is compelled almost upon the mere existence of racial imbalance in a school without much regard for other considerations.

In my view neither present federal nor state law dictates or even supports the majority’s conclusion. At the federal level, certainly Brown v. Board of Education of Topeka, supra ( 347 U. S. 483 , 74 S. Ct. 686 ), is no authority. As earlier pointed out, the United States Supreme Court was there striking down compulsive separation of school children solely because of their race and upsetting the “separate but equal” doctrine upon which such treatment had previously been constitutionally sanctioned. It has since made clear that the principle there laid down may not be avoided or circumvented by any strategems. Goss v. Board of Education, 373 U. S. 683 , 83 S. Ct. 1405 , 10 L. Ed. 2d 632 (1963). This, of course, is not such a case and the court has not dealt with anything like it. There is a vast difference, constitutionally, between saying that a child must go to a certain school and cannot go to another simply because of his color and assigning all pupils to schools, irrespective of race, on a good faith basis of their place of residence. Although it is axiomatic that denial of certiorari by the United States Supreme Court does not constitute an affirmance or any adjudication on the merits of the case, I do not think it is completely without significance that the court has recently declined to review decisions of two federal Circuit Courts of Appeals upholding school assignment plans based on residence which had resulted in extreme racial imbalance — very considerably greater than that in Plainfield' — in the city school systems involved. Bell v. School City of Gary, Indiana, 213 F. Supp. 819 (N. D. Ind. 1963), affirmed 324 F. 2d 209 (7 Cir.), cert. denied 377 U. S. 924 , *187 84 S. Ct. 1223 , 12 L. Ed. 2d 216 (1964); Downs v. Board of Education of Kansas City, Kansas, 336 F. 2d 988 (10 Cir. 1964), cert. denied 380 U. S. 914 , 85 S. Ct. 898 , 13 L. Ed. 2d 800 (1965).

Nor can I find the question before us controlled by the provision of the New Jersey Constitution forbidding segregation in the public schools or the anti-discrimination law implementation of the constitutional guarantee of civil rights. Both are aimed at quite different situations. As to the segregation prohibition of the 1947 Constitution, it was, of course, adopted long before Brown v. Board of Education of Topeka, supra ( 347 U. S. 483 , 74 S. Ct. 686 ). Its purpose was clearly stated by the proponent at the Constitutional Convention:

“Argument no doubt will be made that it is not necessary to have a clause with respect to the public schools. I think it is necessary because a peculiar situation exists in our State. I think it is a situation that should be corrected in the Constitution itself. In one whole section of the State, which we generally refer to as North Jersey, there is no discrimination on account of race in the public schools. In another section, South Jersey, there is discrimination, and separate schools according to races. That does not conform to the statutes. As far as the law of the State is concerned, it doesn’t conform to the statutes.

Now, my belief is that if we put it in the Constitution, it will be settled once and for all. There will be no controversy over the subject. It has been the source of quite a good deal of litigation in the courts and the [clause] will avoid the necessity of future legislation.” 1 Convention Proceedings, Constitutional Convention of 1947, 596.

Despite the fact that the ancestor of R. S. 18:14-2 referred to in the quoted passage had been on the statute books since 1881, it was well known that the statutory prohibition had not been uniformly and stringently enforced, even in the more northerly sections of the State, and the organic law provision was included to malee that matter certain at the highest level.

The anti-discrimination law, N. J. S. A. 18 :25-1, et seq., is directed to the outlawing of “practices of discrimination * * * because of race, creed, color, national origin, ancestry, age or because of their liability for service in the Armed *188 Forces of the United States * * N. J. S. A. 18:25-3, i.e., separate or different treatment in any of the categories covered by the statute solely by reason of any of the factors mentioned. By hypothesis, again this is not such a case and I do not think that this statute can reasonably be said to have controlling impact on the matter of school racial imbalance brought about by uniform pupil assignment according to residential location. While the Legislature undoubtedly has the power to act in this particular field, it has not done so, although the question has been a matter of unfortunate controversy in many communities in the State for a considerable time. It is not unreasonable to believe, therefore, that that branch of government has to date conceived the matter as one to be treated as an educational problem, committed under general law to the state education department and local school boards.

The majority also suggests that its rationale and conclusion were foretold and; are supported by this court’s decision in Morean v. Board of Education of Town of Montclair, supra (42 N. J. 237). I did not then and do not now so understand that opinion. There the Montclair Board of Education was confronted with one junior high school having a 90% Negro population, another 60%, and the third 18%. The Board voluntarily adopted a plan to close the first and reassign its and other pupils in the system. The plan had an educational object, under the undoubted motivation of relieving racial imbalance which was causing education detriment. The attack was by wdiites who were reassigned to other than their neighborhood schools in implementation of the plan and claimed violation of rights thereby. The plan was sustained. I understand the very proper holding and implications of the decision to be that a local board of education may voluntarily assign or reassign pupils as it believes desirable on other than a residence location basis for educational reasons even if those reasons have their foundation in the alleviation or future prevention of racial imbalance in one or more schools. Its true tenor, to me, is the educational approach comparable to *189 that which I urge in the case before us. Further, the opinion to me implies that there is no constitutional or statutory right to attend a neighborhood school, notwithstanding its many desirable features especially in the case of young children, and that the neighborhood school policy in a democratic society in this day and age may not be used simply to maintain a pupil population comprising a particular ethnic or socio-economic group. Cf. dissenting opinion in Vickers v. Township Committee of Gloucester Twp., 37 N. J. 232, 252, 264-266 (1962).

Considering the majority rationale from another angle, it seems to me that it may also be said to amount to a judicial finding that educational detriment requiring correction occurs almost automatically whenever the Negro population in a school becomes the majority. I earlier pointed out my thought that this approach is the wrong one for a court to take, i.e., that the matter should be treated as one of educational policy and implementation to be decided in the first instance by those knowledgeable in and charged with the primary responsibilities in that field. My view is not reached with any thought of evading or trying to sweep under the rug the necessity for constant consideration and efforts at solution of the immense and difficult problem of Negro improvement. There can be no question but that, even in the North, the Negro has not been accorded the full status and equal opportunity in so many fields to which he -is thoroughly entitled as a citizen and an individual human personality. There has been and is prejudice against him in employment, housing and other avenues which has led in a vicious circle to the perpetuation of poverty and the ghetto, with all of their personal and social evils, and a feeling of inferiority, despair and hopelessness, with consequent damage to the whole of American life. Whites must take the initiative to reverse this condition by changes of heart and mind and concrete deeds. There must be continual affirmative action in all fields under the cooperative and high-minded direction of leaders of both races. The approach on both sides should be intelligent rather than emo *190 tional or adamant, to bring us all to an attitude of mutual respect and of living and working together in harmony in a multi-racial and multi-cultural democratic nation.

The improvement of educational achievement offers a principal means of breaking the vicious circle. Indeed, this goal applies to those of all races as the scope of current antipoverty programs makes clear. It means and demands a lot more by way of pre-school and school programs than mere further mixing of the races in a school building, as the high-vision majority report of the Plainfield Lay Advisory Committee so cogently points out. Reducing racial imbalance in schools undoubtedly is an important and necessary element in the over-all picture, but when and how that tool should be utilized ought to be decided in the first instance by educators from the standpoint of furtherance of educational purpose and not by judges.

Although the majority opinion is rather imprecise with respect to its practical impact, the theme appears to run through it that the Commissioner must ultimately order the Plainfield board to adopt one of the Wolff plans. This implication is at least unfortunate. In view of the abstract question which petitioners put to the Commissioner, the merits and demerits of these plans as contrasted with the Sixth Grade Plan were not tried out. On what there is in the record concerning the Board’s conclusions as to respective advantages and disadvantages under the enrollment situation on which the Commissioner decided the case in 1963, and assuming that only the heavily imbalanced Washington School educationally required correction then, I cannot say within the proper role of a judge, that the Board acted improperly, in the light of its responsibilities to the whole community, in adopting the Sixth Grade Plan or that the Commissioner and State Board were utterly wrong in approving that local exercise of discretion. Matters of building capacity and utilization, financial limitations, lengthy distances from home to school, and transportation and traffic hazard problems, among others, are considerations which a local board cannot overlook. Extensive *191 bussing or long walks to school for young children are matters of concern to parents whether white or Negro.

I have said that I agree that this ease must be remanded to the Commissioner for redetermination. There are two reasons. The first, to which I have already adverted, is that he should clearly decide whether denial of educational opportunity in the sense involved here results at a Negro pupil percentage of less than total or almost so, and, if so, at what point. In that connection, I strongly feel that this matter of vital state educational policy ought to be determined on a uniform guide line basis, by rule and regulation if you will, through the action of the State Board and the Commissioner in their respective spheres. To leave it to case-by-case development in adversary litigation, it seems to me, does a disservice to everyone. There can be no doubt of the power so to act at the state level and the subject would appear as important to the whole state as school building regulation and curriculum approval which are now controlled at the state level. This course has been followed, as the majority points out, in New York and California. It has the distinct advantage of letting all know in advance generally what must be done, when and how. It would lead to uniform operation and enforcement without dependence merely on the individual initiative, or lack of it, of certain boards of education or interested groups. Even more significant, advance formulation of state policy would do much to avoid the tensions and adverse effects on community race relations which litigation inevitably produces. Such controversies can readily tear a community apart, almost beyond repair.

The Plainfield situation well illustrates the point. This controversy has obviously been festering and doing the city and all its people no good for about four years, with the litigation pending for almost three. When the Board adopted the optional pupil registration plan in July 1962, no state policy or decision on the problem had been announced. The leading out-of-state case at that time was Taylor v. Board of Education of New Rochelle, 294 F. 2d 36 (2 Cir.), cert. *192 denied 368 U. S. 940 , 82 S. Ct. 382 , 7 L. Ed. 2d 339 (1961), where invidious action had been found and the right of open transfer from the heavily imbalanced school directed as the appropriate remedy. I would think that the Plainfield Board would also have been apprehensive as to what further it might legally do without running into the then unsettled problem of the possible violation of claimed rights of others than Negroes. Morean did not settle this aspect until May 1964. The Board’s legal uncertainty is shown by its answer to the petition, where it set forth its doubts and sought the direction of the Commissioner. Nothing came from him apparently until May 1963, when he decided the Orange case requiring remedial measures only where one school was completely or almost exclusively Negro although three others had 50% or more Negro pupils. The Board then adopted the Sixth Grade Plan, a measure which had been used frequently elsewhere. It was in this posture that the Commissioner decided this case in June 1963, and matters have remained in status quo since. Advance promulgation of state policy would have avoided many of the present difficulties here. It is not too late to decide and announce it for the problem is or will be a live one in many New Jersey school districts for some time yet to come.

The second reason why the Commissioner must reconsider is that the enrollment situation in Plainfield has changed substantially since the litigation was commenced. In essence, the Commissioner decided one factual case, the State Board a different one, and this Court still a third. This is a further illustration of the distinct disadvantages of determining questions of this kind through case-by-case litigation. In 1962, Plainfield’s total population of over 45,000 was about 25% Negro, as far as can be gathered from the record. The then elementary school enrollment of about 5150 pupils was approximately 1900, or 31%, Negro and 3250 white, allocated by residence among 11 schools, all of which accommodated grades kindergarten through six. One of them, Washington, had a Negro population of 95.1%. The next highest percent *193 ages were 64.8%, 59.5% and 57.3%. Two other schools were at 45.8% and 43.2%. These six schools accommodated about one-half of the total elementary enrollment. The other five had Negro percentages ranging from 24.1% to O.

The Commissioner decided the case on the April 1, 1963 enrollment figures. By that time the total elementary population was about 5400, with the Negro percentage at 40.4. The total number of Negro pupils had increased by about 280 as contrasted with a slight decrease in the number of white pupils. The percentage of Negro enrollment had increased in every school but one. Washington was now at 96.2% and the next five schools at 72.1%, 67.6%, 65.5%, 58.9% and 44.9%.

The State Board determined the matter on the basis of the October 1963 figures which reflected the fact that the Sixth Grade Plan had been put in operation. The total enrollment still remained at 5400, but there were now about 170 more Negro pupils than in the preceding April and a correspondingly less number of whites. The over-all Negro percentage stood at 43.6%. Over 500 Negro pupils in grades kindergarten through five in the Washington School had been transferred in September to other schools, although none to a school which at that time had more than a 50% Negro enrollment. Negroes now attended every school and every elementary classroom in the city. Sixth grade pupils throughout the city all now attended Washington School and the Negro percentage there had dropped to 36.6. The schools formerly over 50% to which no transfers had been made, and which still received pupils only on the basis of residence within their attendance zones, had risen to 76.4%, 65.2%, 67.1% and 66.1% Negro enrollment. Jefferson School, to which some transfers had been made, formerly at 44.9%, was now 52.1% Negro. The other five schools which had received the great bulk of the pupils transferred from Washington stood at 40.8%, 39.8%, 26.5%, 17.7% and 23.4% Negro.

The latest figures furnished us depict the enrollment as of October 1, 1964. The total was then about 5500, of which 47.3% were Negroes. The Washington School percentage had *194 become 42.1%. The Negro percentages in the next four which had received no pupils in the transfer stood at 75.7%, 65%, 78.6% and 71.3% Negro. The remaining schools had Negro percentages of 56.6%, 43.4%, 49.7%, 30.9%, 18.8% and 24%.

What had happened since the Commissioner decided the case on the basis of April 1, 1963 figures is that, while the total enrollment increased by but approximately 130, the number of Negro pupils had increased by over 400 and the white enrollment had dropped by about 300. This would seem to indicate further Negro migration into the city and withdrawal of white pupils from the public schools. While four schools now had Negro enrollments of between 65% and 78%, the increases therein were in no way due to the adoption of the Sixth Grade Plan, since no transfers were made to them, but rather appear ascribable 1 to greater Negro residence in their zones and perhaps to certain residential areas of the city having become available to Negroes for the first time.

Be this as it may, the present enrollment picture is obviously very different from that which formed the basis of the Commissioner’s decision. The sufficiency of the Sixth Grade Plan should clearly be reconsidered and decided, under the educational policy approach I have suggested, on up-to-date figures as well as the probabilities for the near future.

The majority directs a reversal of the State Board, and consequently of the Commissioner, as well as a remand and redetermination. It seems to me that whether the Sixth Grade Plan is an appropriate and adequate corrective measure for tire Plainfield Board to continue or whether something different is now educationally required in the light of current conditions depends on the Commissioner’s re determination, first, of when racial imbalance causes such educational detriment as to dictate remedial action, and second, of the nature of the corrective action indicated for Plainfield within those guidelines in the light of all considerations and of the responsibility and discretion reposed in the local board. The *195 result so reached may be the same as that previously arrived at or it may not be. Remand for redetermination should be the limit of our disposition and reversal is not appropriate at this juncture.

I concur in the result reached by the majority insofar as remand to and re determination by the Commissioner is ordered, but dissent as to the direction of reversal and as to the basis of redetermination for the reasons herein expressed.

Justice Haneman joins in this opinion.

For reversal and remandment — Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino — 5.

For remandment — Justices Hall and Haneman — 2.