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12 N.J.A.R. 566

Tenafly, Bd. of Ed. of the Borough of; Englewood Cliffs, Bd. of Ed. of the Borough of v. Englewood, Bd. of Ed. of the City of v
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Citation: 12 N.J.A.R. 566
Decision Date: 1988
Agency: DEPARTMENT OF EDUCATION
Synopsis: The Board of Education of Englewood Cliffs applied to the Commissioner of Education for authorization to terminate its send- ing-receiving relationship with the high school in Englewood and enter into a new sending-receiving relationship with Tenafiy, claiming the quality of education at the Englewood high school was deficient. Englewood opposed the application, contending that the motive for the application was racial prejudice. Englewood filed a cross-petition seeking injunctive relief to prevent Tenafiy from continuing to permit Englewood Cliffs students to attend high school in Tenafiy on a tuition-paying basis. In the alternative, Englewood suggested that the Commissioner could cure racial imbalance in the districts' public schools by ordering the formation of a new regional high school district comprised of all three districts. The matter was transmitted to the Office of Administrative Law for a hearing. Englewood, Englewood Cliffs and Tenafiy are adjacent districts. Englewood Cliffs and Tenafiy are predominantly white, while Englewood has a large black and Hispanic population. Englewood Cliffs does not have a high school, but the district has a sending- receiving arrangement with Englewood permitting its students to at- tend Dwight Morrow High School (DMHS) in Englewood. DMHS has a predominantly minority student population. Some students from Englewood Cliffs attend Tenafiy High School (THS) by paying tuition State of New Jersey 567 to the district. The THS student population is mostly white and Asian. The administrative law judge assigned to the case denied the request to sever the relationship between Englewood Cliffs and Englewood. The judge found that severing the sending-receiving ar- rangement would have a substantial negative impact on the quality of education and the racial imbalance at DMHS. Even though the actual number of Englewood Cliffs students attending DMHS might be small, the judge noted that the 'symbolic' loss of the relationship between the two districts would be especially detrimental to DMHS because it would be perceived as indicating that DMHS was an inferior school. The judge also concluded that Tenafly's tuition pro- gram was illegal because it undermined the State policy favoring equal educational opportunity. Tenafly's tuition program had the effect of enticing white and Asian students from Englewood Cliffs away from DMHS, thus aggravating the racial imbalance in that school. The judge ordered Tenafly to stop admitting Englewood Cliffs or Englewood students to its schools on a tuition-paying basis. Finally, the judge denied the request for regionalization because the three districts were not a 'single community,' as defined by the Jenkins case. Upon review, the Commissioner of Education concurred with this initial decision. The Commissioner noted that racial imbalance is an important factor to be considered when deciding whether to terminate a sending-receiving relationship. Even when positive educational ben- efits might accrue from withdrawal, those benefits can be outweighed by serious and compelling reasons such as racial imbalance. The Commissioner has a responsibility to combat 'flight' from racially imbalanced schools. In assessing the effect of severing the relationship between Englewood and Englewood Cliffs, the Commissioner agreed with the administrative law judge that the symbolic loss to DMHS should be considered. Regarding the Tenafly tuition program, the Commissioner concluded it was not illegal, but was contrary to public policy because it exacerbated racial imbalance at DMHS. The admin- istrative law judge had enjoined Tenafly from accepting tuition stu- dents in any of its schools. The Commissioner modified this order by restricting the injunction to accepting students in Tenafly High School. The Commissioner also agreed that compulsory regionaliza- tion should not be ordered. Forced regionalization is an extraordinary relief that will be ordered only when the conditions of Jenkins are met: there is a 'single community,' regionalization is feasible and it could be accomplished without 'upheaval.' The petition for termination of the sending-receiving relationship was denied. Tenafly was ordered to cease and desist from admitting to its high school on a tuition or other basis any students who are residents of either Englewood or Englewood Cliffs. On appeal, the State Board affirmed the Commissioner's de- cision. The State Board found that permitting Englewood Cliffs to sever its relationship with Englewood would condone the racial im- balance at DMHS. Furthermore, in order to remedy the situation, the State Board said it would take additional steps to ensure that high school age students from Englewood and Englewood Cliffs who at- tended public school would attend DMHS, their assigned school. The prohibition against accepting these students in another district on a tuition-paying basis was extended to all districts, including Tenafly. The State Board noted that parents have the right to choose private schooling, but not to choose which public school their children attend. The State Board also pointed out that while N.J.S.A. 18A:38-3 gives districts discretion to accept non-resident students on a tuition basis, the exercise of that discretion may be limited by the Commissioner and the State Board if necessary to effectuate the State's policy against discrimination. The Commissioner and State Board may take steps to counter trends toward withdrawal of the white majority from the public schools. Finally, the State Board agreed that compulsory regionalization should not be pursued in this case. However, contrary to the Com- missioner, the State Board said regionalization is not limited to cir- cumstances where the districts involved constitute a 'single communi- ty.' Regionalization may be ordered in any situation where such a remedy is necessary to vindicate the State policy against segregation and where regionalization would be 'reasonable, feasible and work- able.' John J. Degnan, Esq. and Stephanie C. Rosen, Esq. (Shanley & Fisher, attorneys) for petitioner/cross-respondent Arnold K. Mytelka, Esq. and Agnes I. Rymer, Esq. (Clapp & Eisenberg, attorneys) and Paul L. Tractenberg, Esq., co-counsel for respondent/cross-petitioner James S. Rothschild Jr., Esq. and Glenn D. Curving, Esq. (Riker, Danzig, Scherer, Hyland & Perretti, attorneys) for cross-respondent State of New Jersey 569