Board of Educ. of Borough of Englewood Cliffs, Bergen County v. Board of Educ. of City of Englewood, Bergen County

CourtNew Jersey Superior Court – Appellate Division
Citation608 A.2d 914,257 N.J.Super. 413
Parties, 75 Ed. Law Rep. 1086 BOARD OF EDUCATION OF the BOROUGH OF ENGLEWOOD CLIFFS, BERGEN COUNTY, Petitioner-Cross-Respondent/Appellant, v. BOARD OF EDUCATION OF the CITY OF ENGLEWOOD, BERGEN COUNTY, Respondent-Cross-Petitioner/Cross-Appellant, v. BOARD OF EDUCATION OF the BOROUGH OF TENAFLY, BERGEN COUNTY, Cross-Respondent/Respondent, and A.S., by her guardian ad litem, R.S., Intervenor/Respondent.
Decision Date15 June 1992

Joel D. Siegal, Newark, for appellant Bd. of Educ. of the Borough of Englewood Cliffs (Hellring, Lindeman, Goldstein & Siegal, attorneys, Joel D. Siegal, Robert S. Raymar, Ronnie F. Liebowitz, Bruce S. Etterman and Matthew E. Moloshok, on the brief).

Mary C. Jacobson, Deputy Atty. Gen., for respondent State Bd. of Educ. (Robert J. Del Tufo, Atty. Gen., attorney, Mary C. Jacobson and Nancy Kaplan Miller, Deputy Attys. Gen., of counsel, Marlene Zuberman and Donald Parisi, Deputy Attys. Gen., on the brief).

Arnold K. Mytelka, Newark, for respondent-cross-appellant Englewood Bd. of Educ. (Clapp & Eisenberg, attorneys, Arnold K. Mytelka, Paul L. Tractenberg and Agnes I. Rymer, on the brief).

James S. Rothschild, Morristown, for cross-respondent-respondent Bd. of Educ. of the Borough of Tenafly (Riker, Danzig, Scherer, Hyland & Perretti, attorneys, James S. Rothschild, of counsel and on the brief, Vito A. Gagliardi, Jr., on the letter brief).

Stephen M. Eisdorfer, Asst. Deputy Public Advocate, for amicus curiae The Public Advocate of New Jersey (Wilfredo Caraballo, Public Advocate, attorney, Kevin H. Marino, Counsel to the Public Advocate, and Stephen M. Eisdorfer, on the brief).

Bernard K. Freamon, Newark, for amici curiae The N.A.A.C.P., the New Jersey State Conference of the NAACP, and the Bergen County Branch of the NAACP (Samuel L. Walters, Asst. Gen. Counsel, NAACP, Baltimore, Md., of counsel and on the brief).

Before Judges LONG, BAIME and THOMAS.

The opinion of the court was delivered by


On this appeal from a decision of the State Board of Education, we are called upon to interpret the term "substantial negative impact" in N.J.S.A. 18A:38-13 (the statute which requires the approval of the Commissioner of Education before a sending-receiving relationship between two school districts may be severed); to revisit the so-called single community doctrine of Jenkins v. Tp. of Morris School District and Bd. of Educ., 58 N.J. 483, 279 A.2d 619 (1971); to explore the power of the State Board to act generally in aid of its jurisdiction, and to assess the State Board's decision to order a regionalization study including some unwilling districts.

We hold that N.J.S.A. 18A:38-13 is not a traditional balancing statute. In assessing an application for severance, the finding of a substantial negative impact on educational quality in one district warrants disapproval of severance, notwithstanding any number of "positive" impacts which severance would bring to the other district. We also hold that under Jenkins, the existence of a "single community" is not a prerequisite to the power of the State Board to bridge school district boundaries where necessary to vindicate the State's policy against segregation. In addition, we confirm the power of the State Board to issue such ancillary orders to school districts in this State as are required to ensure compliance with its policies. Finally, we affirm, as a viable alternative under the facts presented, the State Board's order that a regionalization study take place.


Procedurally, the case arose on December 23, 1985, when the Board of Education of Englewood Cliffs (Cliffs) filed a petition with the Commissioner of the New Jersey Department of Education (Commissioner) under N.J.S.A. 18A:38-13, seeking to sever the sending-receiving relationship with the Board of Education of Englewood (Englewood) pursuant to which Cliffs had been sending its high school students to Dwight Morrow High School (DMHS) in Englewood. Englewood opposed the petition and filed a cross-petition seeking to enjoin the Board of Education of Tenafly (Tenafly) from accepting high school students from Cliffs or Englewood. Englewood also asked that the Commissioner regionalize the three municipalities into one district at the high school level. Tenafly sought the dismissal of the cross-petition as to it and Cliffs answered, opposing regionalization. The Commissioner transmitted the matter to the Office of Administrative Law as a contested case pursuant to N.J.S.A. 52:14F-1 to -11. Between January 7, 1987 and October 6, 1987, Administrative Law Judge Kenneth Springer (ALJ) conducted 99 days of hearings.

On April 18, 1988 the ALJ issued an initial decision recommending the denial of Cliffs' petition for severance because of the negative impact which severance would have on the racial balance of DMHS; the denial of an alternative "dual" sending-receiving relationship among Englewood, Cliffs and Tenafly because it offered no real free choice to less affluent Englewood parents; and the denial of Englewood's cross-petition for regionalization or a comprehensive regionalization study because the potential risks of regionalization were greater than the potential rewards. He also recommended that Tenafly be restrained from accepting any students from Cliffs or Englewood not currently enrolled in a Tenafly school. All parties filed exceptions.

On July 11, 1988 the Commissioner issued a decision adopting the ALJ's findings and recommendations. However, he directed that eighth graders from Cliffs, enrolled in Tenafly as of April 18, 1988, be allowed to remain in Tenafly and attend Tenafly High School (THS) should they so desire. In refusing to order regionalization or a comprehensive regionalization study, the Commissioner opined that regionalization is only available where the districts to be regionalized constitute a single community; where the proofs establish that regionalization would be feasible, reasonable and workable; and where regionalization can be accomplished without any practical upheavals. He concluded that Englewood had failed to meet these criteria. Cliffs and Tenafly appealed to the State Board of Education and Englewood cross-appealed. 1

Subsequently, the Legal Committee of the State Board issued a report essentially adopting the findings and conclusions of the Commissioner, with two important modifications: first, because there was insufficient evidence of the need for regionalization, the Committee recommended that the Commissioner monitor the racial composition of DMHS and report to the State Board periodically with his findings. Second, the Committee recommended that the injunction against accepting Cliffs and Englewood students be extended to all public school boards in the State. Cliffs and Englewood filed exceptions.

On April 4, 1990 the State Board issued a decision which essentially affirmed the findings and conclusions of the Commissioner with some modifications, including those recommended by the Legal Committee. It also directed Cliffs and Englewood to develop a plan, in consultation with the Commissioner and subject to his approval, to encourage their students to attend DMHS. It ordered the Commissioner to monitor the plan and the racial composition of DMHS for five years and to report to it annually as to the effect of the plan on the racial composition of DMHS. The State Board exempted from its decision all students from Cliffs and Englewood attending THS or other public high schools as of the date of the initial decision (April 18, 1988).

Cliffs appealed, challenging the State Board's denial of its petition for severance, the denial of a dual sending-receiving relationship and the injunction. Englewood filed a notice of cross-appeal from the State Board's failure to order regionalization. We granted the motions of the National Association for the Advancement of Colored People (NAACP) and the Public Advocate for amicus status. Englewood filed an application for direct certification to the New Jersey Supreme Court which was denied.

During the pendency of this appeal, Cliffs and Englewood submitted their plans to encourage enrollment at DMHS to the Commissioner. On June 5, 1991 the Commissioner published his first annual report which suggested certain changes in those plans and recommended that the State Board order a regionalization study because of his doubts as to the effectiveness of remedial measures short of regionalization. On July 3, 1991 the State Board resolved to adopt the Commissioner's recommendations.

On August 5, 1991 Cliffs and Tenafly filed motions for leave to appeal from the State Board's resolution authorizing a regionalization study, claiming that the State Board's resolution violated R. 2:9-1 because of the pendency of the earlier appeal. We granted leave and stayed the resolution pending this review. The appeals were consolidated on September 10, 1991.


The record in this case is voluminous. Because the Commissioner and the State Board each essentially adopted the fact-finding of the ALJ, his decision will be set forth at length. We will also detail the recommendations of the ALJ and the decision of the Commissioner, even where they differ from the final decision of the State Board, because that counterpoint serves to clarify the State Board's rulings.

A. The Districts

The Borough of Englewood Cliffs is an affluent suburban community of approximately two square miles. According to the 1980 census, it had a population of 5,698, which was 85.0% white, 9.3% Asian, 3.9% Hispanic, and 0.8% black. Cliffs operates two K-8 schools for its students. Because it has no high school facilities, since 1965 Cliffs has had a sending-receiving relationship with Englewood.

Englewood is a more urban community than Cliffs. Approximately five miles square, it had 23,701 residents according to the 1980 census. Of those...

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