November 16, 2006

Next week, Governor Corzine will preside over a special ceremony that dedicates the Department of Education building in honor of Judge Robert L. Carter. This is a well-deserved honor for a man who has been at the forefront of civil rights, and who has devoted his career to securing equal educational opportunity for all children.

While I’m sure that Judge Carter’s history is well-known to many, some background points should be noted. Prior to his appointment to the bench as a judge of the U.S. District Court for the Southern District of New York in 1972, Carter served in various roles with the NAACP Legal Defense and Educational Fund, Inc. (usually referred to as the “Inc. Fund”), eventually succeeding Thurgood Marshall as chief counsel. Carter’s work with the Inc. Fund on such cases as Sipuel v. Board of Regents of Oklahoma in 1948 and Sweatt v. Painter in 1950 helped set the stage for the landmark Brown v. Board of Education ruling in 1954. Over the course of his tenure at the Inc. Fund, Carter argued or co-argued 22 cases before the United States Supreme Court, including Brown, and won 21 of them. Simply put, his work is the stuff of legend, and those of us who strive to build on his legacy hold him in awe.

In the face of such a long and illustrious career, it is important to consider how much progress New Jersey has made in its efforts to provide equal educational opportunities and to desegregate its public schools. There is both good news and bad. Abbott v. Burke has made the students in the state’s poor urban districts, approximately 350,000 strong, the beneficiaries of an enormous fiscal and educational effort to improve their educational opportunities. What we have already accomplished, still not fully realized, goes far beyond any other state. For example, educational spending in the poor urban districts, largely through state aid, is at least equivalent to what New Jersey’s highest-wealth suburbs spend on their students.

That funding is used, among other things, to provide high-quality full-day preschool programs for all three- and four-year olds in those districts, a top-priority early literacy effort and an array of supplemental programs designed to meet the students’ special needs. Our Commissioner of Education has been charged by the New Jersey Supreme Court with broad responsibility for assuring full accountability in the use of these funds and the delivery of these educational services.

Yet, despite these forward strides, Abbott has done nothing to reduce New Jersey’s “hyper-segregation,” which, sadly, is among the very worst in the nation. In that sense, Abbott may be more reminiscent of Plessy v. Ferguson than Brown. New Jersey’s record in achieving racially balanced schools is especially disgraceful because we have the nation’s strongest state constitutional jurisprudence. In this state, de facto school segregation is unconstitutional and district lines are no impediment to achieving racial balance wherever it is feasible.

Despite that resounding mandate and frequent lip service paid to it by all the branches of state government, we have simply failed to move ahead. Our recently retired Chief Justice Deborah Poritz, writing for a unanimous New Jersey Supreme Court, told it like it is in a 2004 decision: “[w]e have paid lip service to the idea of diversity in our schools, but in the real world we have not succeeded.”

Unfortunately, neither Brown’s 50th anniversary nor anything else has led to an improvement in New Jersey’s abysmal situation since Chief Justice Poritz’s honest words more than two years ago. But there may be some openings now. First, New Jersey has had in place for seven years a small pilot program under which public school students can attend public schools in other districts with state fiscal support. The program has been modestly successful and is likely to be continued or even expanded, but it has not had either the purpose or effect of improving racial balance in the schools. It could be restructured to make that a major thrust.

Second, largely because of great public concern about local property tax burdens, New Jerseyans are much more open to school district consolidation than they have ever been. A special legislative committee has been exploring various consolidation and cross-district service sharing options, but studiously avoiding the possibility of using consolidation to improve racial balance. In fact, consolidation could be a powerful vehicle, if properly structured, for improving racial balance.

These two rays of hope may enable us to turn the tide. Those of us who are building on the work of luminaries like Judge Robert L. Carter must continue to press for initiatives that will end hyper-segregation in New Jersey public schools. The legacy of Judge Carter, as well as the future of our children, demand no less.


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