A thesis submitted to the History Department
Rutgers, The State University of New Jersey
for Undergraduate Departmental Honors
and to fulfill the requirements of the Henry Rutgers Scholars Program.
Advised by Professor Steven Lawson
New Brunswick, New Jersey
This work is property of the author, and may not be used without his express permission.
Author e-mail address: firstname.lastname@example.org
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This daunting task, twelve credits and a blank canvas, frequently caused my level of stress to soar. Professor Steven Lawson, my advisor, provided welcome relief. In our frequent meetings, he helped me formulate a framework for this paper, challenged me to examine issues from a wide historical perspective, and urged me to question the social framework of our United States. I have never thought as well as I have this year, and much of that is due to his guidance.
I am also in deep gratitude to the many people who took time from their busy schedules to talk with me. All of them significantly aided my studies by offering excellent research material.
To all of the lawyers, Bernard Freamon, the Honorable Justice Virgina Long, Arnold Mytelka, James Rothschild, and Agnes Rymer: I admire each of your abilities to express complicated concepts with patience, cogency, and clarity. Your convictions are admirable. One day, I hope to be able to share my ideas using phrases as artful as yours.
Sherri Lippman’s comprehensive research set me on the right track. Melina Patterson’s excellent Master’s thesis on the Englewood case forced me to think about the case from a geographical standpoint. Their deep understanding of these issues facilitated my own.
Amanda, your good humor and advice is invaluable. You’re too smart for your age. Uncle David, thanks for trying to knock me Republican.
This thesis is dedicated to the people who taught me the alphabet and
had me reading (or at least sounding out) the front page of the New
York Times at the ripe age of three. Mom, Dad, you are and always will
be my two greatest teachers.
Education, then, beyond all other devices of human origin, is the great
equalizer of the conditions of men—the balance-wheel of the social machinery…
[The Common School] will open a wider area over which the social feelings
will expand; and, if this education should be universal and complete, it
would do more than all things else to obliterate factitious distinctions
- Horace Mann, Report No. 12 of the Massachusetts School Board (1848)
I want the white adults to recognize the intellectual equality of the Negroes as did their children in the high school who elected Negroes to office in several of the organizations there. I want Englewood to be a national example of a perfect community.
- Englewood High School student (November 27, 1947)
Tenafly is our garden. Let us leave it for our children the way our fathers left it for us.
- Tenafly Planning Board (1933)
Table of Contents
Chapter 1: Just Schools
Chapter 2: "Paradise" — Bergen County, New Jersey
Chapter 3: From the Fiefdoms’ Lawyers
Chapter 4: Whipping Up Hysteria
Chapter 5: A Whimper
Chapter 6: Laws, Biases, Taxpayers, and Children
I was seven years old when my parents moved into a yellow aluminum-sided colonial house in Tenafly, New Jersey. Nearly five months later, in December 1985, neighboring Englewood filed a petition to regionalize the school districts’ high schools in an attempt to achieve a more racially balanced student population. At the time, I was considerably more concerned with baseball cards than the intricacies of New Jersey education law, and I admit that I did not pay attention to the matter.
The gears of justice cranked slowly for the next ten years. I am not sure when I first became aware of the lawsuit, most likely around age ten or eleven. When I did, I remember thinking it was a very bad thing. Tenafly would have to give up control of its schools? What did Tenafly do wrong? Englewood must have been covering up for its mistakes. Regardless, the suit hung like an ominous cloud over my entire public school education.
I will never forget the night of October 18, 1995. Barbara Mann and I, the respective president and vice-president of the Tenafly High School Student Organization, had developed an action plan to convince students to attend a hearing at the high school gymnasium that night—to show their Tiger spirit against forced regionalization and for local control of schools. The week was frantic. We constructed signs, dotted the school’s hallways with flyers, and delivered public address announcements. We were on TV. Two days shy of my seventeenth birthday (and my first driver’s license), I shook off most of my nerves and spoke before a state commission, a large press corps, and a wild throng of 3,000 borough residents, including half the THS student population. At the end of the evening, I felt greatly satisfied. I had represented my constituency, the student body, to the best of my ability. Moreover, it seemed like our work was effective; soon after the meeting, there were suggestions that the state would not order a regional district.
Three years later, as a history major at Rutgers College, I decided to write a paper on the media spin of the Tenafly/Englewood imbroglio for a seminar called, "The History of Race in North America." My original proposal focused on how the press deliberately diverted its attention from the central issue of local control of schools and instead focused on race for sexier headlines. Hours of introspection and study shifted my perspective. Race, I realized, did play an important role in this case. There is something fundamentally uncomfortable about a 97 percent black and Hispanic high school two miles from a school with a 3 percent black and Hispanic population. As much as Tenafly residents tried to argue that there was no racial component to their anxiety, race became cloaked in other issues: standardized test scores and classism.
My new outlook truly startled me, and I have expanded my findings in this project. Many of my recent discoveries would have been unfathomable to me as a highly partisan high school senior: the towns’ histories, dating back to their formations, include numerous incidents of racism; resistance to Englewood’s first desegregation suit in the 1960s is analogous to the 1990s resistance in Tenafly; and Englewood had the legal right to propose a regional district as a remedy to de facto segregation. Though I remain unconvinced that a regional high school would succeed due to the probable lack of wide public support for the new program, this lawsuit casts a light on the goals of American public schooling. As one judge noted, "this case implicates hard choices among important and occasionally competing state policy objectives, including social justice, academic excellence, freedom of choice and home rule."1
This is a passionate issue, and combined with my own special perspective in this case, it may be particularly difficult to disembody the voice of the author from his work as compared to a more detached accounting of uncontroversial events. I have given my most sincere attempt at being objective, and I apologize for any bias or partisanship implied herein. It is an awkward experience to author the history of events that you have helped shape.
After contemplating the nuances of this issue to the brink of total
mental exhaustion, I had lost touch with what and how I thought about regionalization
four years ago. So I gave a call to Barbara, my student government cohort.
Our conversation was rewarding for my research, as what she said truly
surprised me. I will share some of our discussion in the afterword. But
first, I ask you to read the body of this paper, think critically about
the social and legal history of de facto segregated schools, and
contemplate what this long and painful lawsuit that drove an impenetrable
wall between neighboring communities portends for the future of the country.
Chapter 1: Just Schools
The early afternoon of October 2, 1995 offered a peek into the racial climate of suburban New Jersey. A television was wheeled into the library of Tenafly High School and a small crowd of students and faculty gathered to hear if black football star O.J. Simpson had been found guilty of murdering his white ex-wife. Upon the recitiation of his acquittal, some white students groaned and booed. As the news dashed through the halls, the one African-American graduating senior in the class of 1996 stood up on a cafeteria table and shouted with glee.
For Time, it was "The Trial for Our Times," and the magazine commented, "on the subject of race, America is a tinder box this season."2 Indeed, it was. In the weeks following, the country was bombarded with similar images of racial divisiveness. Simpson defense attorney Robert Shapiro admitted playing the "race card," and, moreover, "dealing it from the bottom of the deck." Louis Farrakhan’s Nation of Islam was preparing for its Million Man March in Washington, D.C. Twentieth Century Fox released a movie called White Man’s Burden that posited a country with a majority black population oppressing its white minority. Earlier that year, Susan Smith, a white mother of two, admitted to drowning her children in a lake, but not before accusing a black man of kidnapping them.
In the thick of it all, the country turned its eyes to the quiet eruption of Northern Bergen County, the site of "the nastiest school-desegregation fight in New Jersey in a quarter-century."3 The turmoil had brewed for a full decade before the lawsuit caught national attention. In 1985, Englewood Cliffs (hereinafter "Cliffs"), a wealthy, and almost exclusively white and Asian town too small to operate its own high school, petitioned the Commissioner of Education to end a twenty-year old agreement that sent its high school students to Englewood’s Dwight Morrow High School (DMHS), which by then had a black and Hispanic population of about 90 percent. Concerned about DMHS’s shallow educational offerings, low standardized test scores, and administrative instability, Cliffs attempted to establish a new relationship with nearby Tenafly High School (THS), an institution recognized for its academic excellence and that also shared Cliffs’ racial makeup. Livid, Englewood petitioned the state to regionalize the three districts and create one racially integrated high school. Cliffs and Tenafly were steadfast in their desire to maintain neighborhood schools and local control of their districts. After ten years of legal wrangling and local uproar, the state called a series of public forums to discuss a state-commissioned study that formulated a regional district. The hearings attracted massive media attention, galvanized local public opinion, and served to further polarize residents on a subject that helped turn neighbors into enemies.
In 1971, the New Jersey Supreme Court reaffirmed that "racial segregation or imbalance" in schools was unconstitutional, and that municipal boundaries "may readily be bridged" to alleviate de facto racial segregation.4 Englewood was successful in winning some of the racial balancing measures for which they sued. But despite no substantive change in New Jersey anti-segregation law since 1971, Englewood’s petition to regionalize its 90 percent black and Hispanic school system and the 2 percent black and Hispanic school system of Tenafly was rejected nine times in twelve years by various governmental adjudicating bodies. This thesis argues that a combination of the dismantling of federal desegregation law, lack of fervent support for the plan within Englewood, and, most importantly, enormous community resistance to regionalization in Tenafly and Cliffs underpropped by the self-fulfilling prophecy of white-flight, helped defeat Englewood’s proposal, which today remains legally unresolved.
The social and legal history of Board of Education of Englewood Cliffs v. Board of Education of Englewood , 257 N.J. Super. 413 (App. Div. 1992), aff’d per curiam, 132 N.J. 327, cert. denied, 510 U.S. 991 (1993), is even longer and more complicated than its citation indicates. The roots of the case begin with the black migration into the city of Englewood in the 1910s, and the first major desegregation suit in Englewood that dates to 1962. For proper context, there must be a discussion of the legal origins of the desegregation movement both in New Jersey and nationwide.
After the culmination of the Civil War in 1865, the reconstructed United States passed a series of three Constitutional amendments in five years designed to give the newly freed citizens of the country equal civil and political rights. The centerpiece was the Fourteenth Amendment, which read, in part:
No magic wand waved in 1954 to produce Brown v. Board of Education of Topeka, the decision that declared, "in the field of public education the doctrine of ‘separate but equal’ has no place."6 A long uphill legal struggle preceded Brown, which first aimed at achieving absolute equality in graduate schools, and then at integrating universities. The legal basis for the Supreme Court’s unanimous Brown opinion was that there existed no rational basis for classification on the basis of race. In addition, because of the imbalance in political power between the races, absolute equality could rarely be enforced in legally segregated environments. Chief Justice Earl Warren appealed to the conscience of the Court, and, ultimately, to the conscience of the nation when he urged his justices to reinterpret the Constitution on the strength of "changes in men’s feelings for what is right and just."7 Legally enforced segregation, wrote Warren, "generates a feeling of inferiority as to [segregated students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone."8 Through Brown, the Court declared the doctrine of separate but equal to be invidious, as it denied the segregated group equal protection of the law granted by the Fourteenth Amendment. The case had a far greater impact than in just the area of academia; it effectively dismantled the framework for all legalized discrimination based on race.
The decision met heavy resistance in the South, where segregation was culturally ingrained. One year later, in Brown II, the Court recognized that "the vitality of these Constitutional principles cannot be allowed to yield simply because of disagreement with them," and ordered states to assign their students to schools "on a racially nondiscriminatory basis with all deliberate speed."9 Or, as Richard Kluger argues, the Court "told the nation to make haste slowly in this momentous business."10 Between Brown II and weak support from President Dwight Eisenhower, the conflict became greatly polarized, and "massive resistance was the dominant mood."11
Judicially, tokenism was dominant in the South. The "Parker doctrine" read the Brown decision as merely prohibiting discrimination, and not an explicit order to integrate schools.12 Fourteen years after the original Brown decision, the Supreme Court unanimously concluded that the time for delay had ended. Green v. New Kent County put the affirmative duty upon a Virginia school board to provide a plan that "promises realistically to work now."13 Segregation was to be eradicated "root and branch," so that "white schools" and "Negro schools" would become "just schools." Soon after, the Court ruled that "white flight," the phenomenon of white parents removing their children from public schools in the midst of a desegregation decree, could not "be accepted as a reason for achieving anything less than complete uprooting of the dual public school system."14 In 1971, mandatory busing was ruled a constitutionally legitimate method to promote desegregation within a school district. That case, Swann v. Charlotte-Mecklenburg Board of Education, also granted broad powers to federal district courts to eliminate all "vestiges" of state-imposed segregation.
These cases focused primarily on the dismantling of the de jure (state-sanctioned by law) dual systems of school segregation in the South. The Supreme Court in Brown did not explicitly outlaw de facto (not resultant from state policy; by fact) segregation, a phenomenon common in the North exacerbated by suburbanization, but it did cite numerous psychological studies cataloging the negative effects of segregation on black schoolchildren. New Jersey in particular acted early to outlaw de facto segregation.
Under principles of federalism, states can grant their citizens additional rights and protections not expressly enumerated in the Unites States Constitution. In 1881, New Jersey became one of the first states to pass legislation declaring it unlawful to exclude a child from a public school because of his race. The State redrafted its constitution in 1947 on the Rutgers University campus and created what legal scholars have described as "the most forward-looking document of its kind in the nation."15 The first article provides public school children a "positive constitutional right"16 to learn in a non-segregated educational environment:
The 1965 New Jersey Supreme Court case Booker v. Board of Education of Plainfield was an early test of the provision. Due to the prevalence of residential segregation and rigid application of neighborhood districting, one Plainfield elementary school had an African-American population of 95 percent, while the entire district’s black population was only 37 percent. The petitioners acknowledged that there was no deliberate segregation of the students, because the concentration of black students resulted from "a constellation of socioeconomic factors."18 However, they argued that the "maintenance of predominantly Negro schools engendered feelings and attitudes which … tended to produce in the minds of Negro pupils ‘a sense of stigma and a feeling of inferiority.’" The Court ruled:
The New Jersey Supreme Court took a step further in 1971, and set important precedents that would breed wildly varying interpretations in the 1985 Englewood case. The appellants in Jenkins v. Tp. of Morris School District sought to merge the school districts of Morristown and Morris Township, the former with a town-wide black population at 25 percent and growing, the latter with black population below 5 percent. Morristown is a compact urban center fully encircled by Morris Township, like a hole in a donut. The two entities were once a single municipal unit, and were found to be "so interrelated that they may realistically be viewed as a single community, probably a unique one in our State."23 The towns maintained a hundred-year-long agreement under which Morris Township students were sent to Morristown High School. The dispute arose when Morris Township petitioned to sever that relationship.
The Court denied the petition, explaining that without attendance from Morris Township pupils, the remaining students would be "from lower socioeconomic backgrounds and be less oriented toward academic achievement." Furthermore, if the Court would have granted a severance, Morristown High School would not have been able to maintain its excellent "breadth and quality of program," and its students would be denied the "privilege of an integrated education." The decision cited the benefits of a "bi-racial experience," and a "representation of the socioeconomic spectrum." Further, the Court ruled that "governmental subdivisions of the state may readily be bridged when necessary to vindicate constitutional rights and policies," and reiterated the Commissioner of Education’s broad power to implement policies set forth in state school law, including the Booker precedents. The merger would be "entirely reasonable, feasible and workable," without any "practical upheavals," and not significantly increase busing or other expenditures.24 The practical effect of Booker and Jenkins was limited, however. No independent districts in New Jersey have been forcibly regionalized since Jenkins while school segregation within New Jersey has worsened over time. Since the 1960s, New Jersey has been ranked consistently among the four most segregated states in the country.25
These were progressive cases during the same era of judicial liberalism that saw the genesis of affirmative action, abortion rights, increased protection for accused criminals, and the elimination of prayer from public classrooms. The decisions helped fuel the growing public concern that America’s judiciary had run amok. Although President Lyndon Johnson’s Kerner Commision reported that the country had become two societies divided by race, "separate and unequal," the white backlash began to erode the liberal consensus of the 1960s. Stepping in to "bring us together" was Richard Nixon, a candidate who believed that blacks were genetically inferior to whites.26 He seized the Parker Doctrine and featured it as part of his "Southern Strategy," describing his position as being in favor of desegregation, but against integration.27 A central tenet of his campaign platform was the passage of a constitutional amendment prohibiting busing to alleviate racial segregation. Nixon’s four Court appointments include the current Chief Justice William Rehnquist, who drafted the anti-busing amendment for Nixon, and, while clerking for Justice Robert Jackson, opined that Plessy v. Fergeson was "right and should be-reaffirmed."28
Yet Nixon’s Court wrote a number of liberal decisions on school desegregation, most notably Keyes v. School District No.1, Denver, Colo. In addition to being the first major court-ordered desegregation in the North, Keyes was also the Court’s first desegregation case to be decided non-unanimously. The decision ordered Denver to implement a broad solution, as one section of the city was found to be de jure segregated, the result of school board decisions designed to keep its schools racially distinct. Also, Hispanics, in addition to African-Americans, were for the first time recognized as a discriminated class with respect to education. Though two concurring opinions urged the removal of the de facto/de jure distinction, the majority opinion held that compensating for residential segregation remained beyond the reach of the Court’s permissible remedies.
These divisions would fracture the Court further in Milliken v. Bradley, the ruling that would launch the dismantling of the federal body of desegregation law. The sharply divided Court read its decision two weeks before Nixon resigned the presidency; in 1974, all four of Nixon’s appointments were among the five majority justices preventing cities from reaching beyond district lines to achieve meaningful desegregation of urban schools. The city of Detroit, like Denver, was segregated as a result of official policies, and thus was required under Keyes to fashion a "unitary" system. However, whites in Detroit had been slowly moving out of the city and into the suburbs ever since World War II, a trend mirrored in most other large American cities. By 1974, there were simply too few whites left in the city proper to desegregate its schools. The challenged proposal would have consolidated fifty-four independent school districts into one "super school district" which would have included busing suburban children into Detroit, and city children into the suburbs. The plan was never implemented. Chief Justice Warren Burger’s majority opinion noted that "no single tradition in public education is more deeply rooted than local control over the operation of schools," and that "school district lines may not be casually ignored or treated as a mere administrative convenience."29 Because the neighboring districts committed no official acts that significantly affected the segregated conditions of the city schools, a metropolitan plan would have been unfairly punitive to residents of the outlying districts. The city was forced to scramble its white students across the city’s schools, which served only to precipitate greater white flight into the suburbs.
Milliken was a momentous decision, and the dissents recognized that it represented a stern reinforcement of segregated schools. Justice Thurgood Marshall, who as NAACP chief counsel had won the victory in Brown, called it "a giant step backwards" that guarantees "Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past." Calling the decision a "solemn mockery of Brown I," he reiterated that "unless our children begin to learn together, there is little hope that our people will ever learn to live together." "In the short run," he emotionally concluded, "it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities—one white, the other black—but it is a course, I predict, our people will ultimately regret." Justice Byron White’s dissent argued that "presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community." The majority decision, wrote Richard Kluger, "denied the organic cohesiveness of metropolitan regions and the responsibility of satellites for the problems of the urban core around which they economically and often culturally revolved."30
One Justice’s vote swinging toward affirmation of the lower court’s
inter-district plan in Milliken could have triggered a massive shift
in human geography nationwide. There could have resulted an exodus from
suburbs threatened by their proximity to cities, accompanied by a surge
in private school enrollment for the children of suburbanites who would
not move. Or perhaps there would have been meaningfully integrated schools
with wide community support. Parents commonly striving for their children’s
best possible education could have united under the moral rubric that calls
for a substantially equal education for all Americans. But it was not to
be. If Milliken was affirmed, then the decade-and-a-half-long inter-district
dispute in Bergen County, New Jersey probably would have been settled not
long after it started. Instead, the fight stayed outside the Federal judiciary
and remained within the New Jersey court system where segregation in public
schools is unconstitutional in any form. The case traveled slowly, in two
long cycles through a maze of adjudicating bodies. Before explaining the
tortuous legal battle, we must closely examine the towns in question to
find out how exactly the schools became so racially distinct, and see how
the methods of resistance in the first intra-district Englewood desegregation
battle from the 1960s foreshadowed the second years later.
Chapter 2: "Paradise"—Bergen County, New Jersey
The growth in the number Bergen County municipalities was remarkable in the first years of the twentieth century—a tenfold increase in thirty years. Communities sought to break away from larger municipalities both to establish their own school systems and to escape the debt incurred by schools in the larger districts. Tenafly seceded from the township of Palisades in 1894. Englewood followed suit in 1899. Englewood Cliffs, with a population of one hundred, separated from Englewood in May 1895 to avoid costs of supporting large public works programs in Englewood.31 Both property and schools were "central to active attempts to inscribe and delimit the local then, as they are now."32
Englewood practiced legalized segregation in its early days. In an 1878 referendum, Englewood rejected integrated schools. The Englewood superintendent of schools commented in 1879, "Many of the colored people...refused to send their children to the [segregated] school. But when they learned… there was no redress to be had in the court for their supposed wrongs, they were willing to quietly discuss the matter for an amicable settlement."33 In 1881, the New Jersey government passed legislation preventing segregation in education, thus banning such a discriminatory practice in Englewood.
Wealthy residents of Englewood looked to southern blacks for cheap labor at the end of the nineteenth century. One resident brought a South Carolina woman named Margaret to Englewood in 1895 to perform basic domestic duties. Word spread quickly about Margaret, and several of her friends from South Carolina were brought north in the next decade. By 1903, a systematic method of importing blacks evolved. Within twenty years, 1,100 African-Americans lived in Englewood, comprising 10 percent of the city’s population. Blacks moved almost exclusively into the Fourth Ward of Englewood, displacing Irish and Italian families who moved to different areas within the city.34 The Fourth Ward, though, was primarily segregated by class, not race; in 1909, most of the residents there were white, but all were poorer than their neighbors on the city’s East Hill. Still, residential racial segregation in Englewood allowed surrounding communities to remain relatively homogeneous: one-fourth of all blacks in Bergen County around 1930 lived in Englewood, while the city’s population on the whole was about 6 percent of the county’s total population.35
The Great Depression brought hardship to Englewood’s residents, but economic burdens fell especially hard upon its growing African-American population. In 1930, before the nadir of the Depression, 42 percent of Englewood’s blacks were unemployed. More blacks to whom "Englewood had been portrayed as a paradise" continued to arrive from South Carolina; 150 migrated to Englewood in 1932 alone.36 In response to this situation, one city councilman suggested that the flow of blacks would be significantly curtailed by establishing segregationist practices in the schools. It was the "only likely means of making Englewood less attractive for the indigent Negro."37 The black population protested, and the plan was not implemented.
There is ample evidence of residential steering by race within Englewood and surrounding communities. In neighboring Teaneck around 1930, white residents signed petitions to prevent blacks from purchasing homes, and crosses were burned on black residents’ lawns.38 Many blacks living in Englewood’s Fourth Ward during this time were employed as low-wage domestic workers in a wide geographical sphere, including towns like Teaneck. Thus, the surrounding localities benefited from the cheap labor available locally while dodging Englewood’s significant welfare and municipal service bills. "Their segregation," argues Melina Patterson, "was in large part a product of the successful and vigilantly racist housing policies of other localities."39 Most likely because it was seen as a safe haven, most African-Americans from all economic classes settled in the Fourth Ward when they came to Bergen County in the 1940s and 1950s.
Englewood’s black population doubled from 1930 to 1960, and residential segregation continued to worsen.40 Many blacks remained mired in poverty. As late as 1950, 50 percent of black households had no hot water, and 17 percent used communal toilets.41 The Kennedy Administration proposed a federal housing project for construction in the Fourth Ward, which could have served only to perpetuate the residential imbalance. The project was built, despite protests from the Bergen County NAACP.42 Around this time, the area garnered a reputation as a black ghetto, and "anyone who could move away did."43
Patterson identifies a "paternalistic" relationship between whites and African-Americans within Englewood, where social welfare benefits such as day-care and hot lunches were privately provided. When economic hardships increased, paternalism became strained, as witnessed by the Jim Crow proposals in Englewood during the Depression. Bitterness arose among Englewood whites who began to take a cost-benefit analysis of blacks living in their city. African-Americans took offense; one black leader who ran for city council in the 1940’s attacked the "’Manor on the Hill’ attitude toward the Negro."44 Blatant prejudice also reared its ugly head: white parents in 1933 requested their children be transferred from the Fourth Ward’s Lincoln school, and a pool at the increasingly black junior high school was closed in 1935 to prevent the mixing of races.45 Thus, racial tensions had existed before the first desegregation battle in the 1950s.
In 1954, the Lincoln School, located in the heart of the Fourth Ward, had an African-American school population of 98.7 percent, while the Second Ward’s Cleveland School had a white population of 99.8 percent.46 These extreme figures resulted from the strict implementation of the state’s neighborhood school policy.47 Throughout the early 1950s, blacks migrated from the Fourth Ward to the Third. Consequently, several of Lincoln’s classrooms emptied, while others in the district became overcrowded. The Board of Education, whose members were (and remain) appointed by the Mayor of Englewood, redrew the ward lines, encompassing some of the Third Ward into the newly reconfigured Fourth Ward. In a clear case of racial gerrymandering, black families in the Third Ward were consequently reassigned to the Lincoln School. The NAACP filed suit in what may have been the first case north of the Mason-Dixon line where a Board of Education appeared as a defendant on charges of racial discrimination.48 In 1955, the Commissioner of Education found the Englewood Board guilty of discrimination in its reconfiguration of school boundary lines, and ordered it to redraw them on the "sound educational practice... that all children should be permitted to attend the school nearest their residence."49 The Commissioner went on to find the junior high school in the Lincoln district to be in violation of the anti-segregation clause of the New Jersey Constitution, ordering the Board to formulate a solution to desegregate the school.
The public perceived the Board to be laggard in its efforts. The NAACP sued the district a second time in 1962 when the Board refused to admit nine black Lincoln School students as transfers to the 95 percent white Quarles School. Three hundred protesters against Board policies staged a sit-in at the city hall, and the seven arrests there were believed to be the first of their kind in the North. Ironically, Englewood blacks called for an end to the neighborhood school policy that they helped cement into law seven years before in the Lincoln School reassignment case. School boycotts were repeatedly threatened, but the Board denied their requests. A compromise was proposed: a "demonstration school" that would implement "modern and imaginative approaches" in the instruction of students.50 The NAACP and other groups condemned the plan for circumventing the more systemic problem of residential segregation, and the League of Women Voters criticized the "voluntary nature" of the plan. The clergy became actively involved in organizing groups to lobby the Board. The black community formed the "Englewood Movement," a grassroots organization holding the position that Englewood was "sick and suffering."51 One pro-integration rally drew 500 residents, including noted black Congressman Adam Clayton Powell, Jr. An extremist disrupted the Powell rally, brandishing a sign proclaiming, "Whites Have Rights."52
The "demonstration school" plan was eventually abandoned, and the Board proposed a new fifth-grade central intermediate school. That plan met with enormous resistance by Englewood residents, 500 of whom joined a newly established community group called "Save Our Neighborhood Schools." SONS condemned the doctrine of "pedagogical osmosis,"53 questioning whether blacks and whites sitting together in class would necessarily result in improved education for either. Fifteen percent of SONS’s members were blacks who believed that moving children away from neighborhood schools for the express purpose of integration was unnecessary; these people were often referred to as "white Negroes" in the community.54 Another grassroots organization, the Englewood Taxpayers League, claimed that remedying racial imbalance should not be a community priority:
With the backdrop of severe racial strife generating educational turmoil next door, the wealthy and racially homogenous community of Englewood Cliffs started a search for a new district to send its students in 1965. Too small for its own high school, and no longer welcomed by a rapidly growing Fort Lee district, Cliffs found Englewood as a suitor. A ten-year contract was signed to commence in 1967, whereupon students graduating from Cliffs’ junior high school would be assigned to Dwight Morrow High School in Englewood (DMHS). It did not take long for the relationship to splinter. A series of disparaging newspaper articles about DMHS in the late 1970s fostered a growing negative perception of the school. Cliffs parents, in "various stormy sessions," pressured their Board not to renew its contract with Englewood.58 In 1977, ten years into the sending arrangement, Cliffs petitioned the state to sever the ties between the two municipalities. A study commissioned by Cliffs revealed that parents were concerned about discipline, administrative instability, low educational standards, and racial balance at DMHS, where the student population was three-fifths black. Englewood was bitterly antagonistic toward Cliffs’ attempt to sever ties between the districts, and argued that a termination of the relationship would worsen racial imbalance at DMHS.59
The attitude of the Cliffs residents demonstrates that the mere existence of any concentrated black population can be an integral factor in the private decisions of whites living nearby.60 In Englewood itself, the busing orders resulting from the first desegregation suit caused many whites to remove their children from the system, and shattered the illusion that white paternalism benefited blacks. Cliffs sent an average of about 250 students to DMHS per year, but that number constituted only 43 percent of its potential sending pool; the remainder attended private or parochial schools.61 By 1985, one third of all children in Englewood attended one of the approximately twenty private or parochial schools in the area, the large majority of those children being white.62
Some blacks were fed up and sought alternative remedies. A telling newspaper article from March 1985, a time when the white population at DMHS had dwindled to 15 percent, cites "an ambitious vision forming of a minority school system, that, although separate, is better." Trustee Russell Major, who fought for integrated schools in Englewood’s first desegregation battle, shifted course with apparent frustration: "For us to worry about whether whites are in the school system is counterproductive." He stressed the need for excellence in the DMHS educational program.63 Englewood established new high academic and strict disciplinary standards in an attempt to improve its poor standardized test scores.
Within DMHS, there was also noticeable stratification; all of the members of the state champion math team were white, and whites comprised a disproportionately large percentage of both the school’s National Honors Society chapter and the Advanced Placement course population. Since many of those academic stars were Cliffs students, Englewood felt it especially important to maintain Cliffs’ presence in the district. Dr. David Adler, the Acting Superintendent of Englewood schools in 1985, called the Cliffs students "nifty kids."64 As late as 1985, the high school was still delivering to its students an education strong enough to earn academic accolades. Nevertheless, Cliffs students began to enroll in private schools at the elementary and junior high school levels to ensure their placement in selective, private secondary schools.
Over a four-year period, the Cliffs trustees met with various neighboring municipalities, including Tenafly, Fort Lee, Cresskill, and Fair Lawn, in search of a new sending district. In 1981, however, Cliffs withdrew its petition to remove its students from DMHS, sensing that the Commissioner of Education would not approve it for fear of further upsetting the school’s racial balance. The Commissioner’s guidelines to determine whether such an agreement could be terminated requires that there can result no "substantial negative impact" on either district. By 1982, the Cliffs Board stopped encouraging its students to attend DMHS altogether. Around that time, rumors began circulating in the Cliffs Upper School that students, should they attend DMHS, would be subject to battery, drugs, and even sexual assault.65 Not coincidentally, 1982 was also the year the borough of Tenafly, which was a sending district to Englewood until 1922,66 initiated a tuition policy for non-resident students.67
"When it comes to high-type municipalities," asked the Englewood Press Journal in 1962, "where could you find two nicer towns than Tenafly, to our north, and Leonia?… The people who have settled in Tenafly and Leonia selected them because of their quality and character: their nice homes, good schools, [and] protective zoning."68 But, like both Englewood and Cliffs, Tenafly’s past was not so rosy. A book commemorating the centennial of a Tenafly church in 1969, penned by one of its rectors, raises some of the darker points in the borough’s history with shocking candor. The town prided itself on its "suburban, residential character," but could not escape from the "urban complex of which it is a part." Tenafly, characterized by its "considerable affluence," was markedly conservative in its politics. By 1969, a substantial portion of the town’s population was Jewish. "Before this was the case, there was open anti-Semitism. Lately, it is largely latent," as if to defuse the indictment of his parishioners’ hometown. "There is no slum and only a few seriously aging streets," added the clergyman, "and there is fear of residential invasion by the Negro." Even though a Fair Housing Group existed in Tenafly, "the borough remains essentially a white ghetto. This is not all white worry or prejudice. Prices are high, which screens out many black people, while other Negroes want no part of a town so WASP-ish." Despite those statements, or perhaps because of them, the rector concluded by stating that "there is considerable community satisfaction with itself."69
Moving forward a decade, Tenafly had amassed a reputation as one of the state’s flagship school districts. Some of its educational programs, however, were falling into jeopardy because of a declining enrollment in its schools due to shifts in local demographic patterns. The district’s tuition policy, initiated in 1982, was similar in structure to those of many other districts in the area. Potential students would apply for admission to the system, and upon a review of their academic and disciplinary records, would pay an annual fee to Tenafly of about $5,000. Tenafly asserted that the policy targeted students who would have otherwise attended area private schools, and that it did not specifically plan to draw children from Cliffs or Englewood.70 The policy was hugely successful, so successful that it hurt Tenafly in the legal struggles to come (see Table I). By the 1985-1986 school year, THS enrolled seventy-four tuition students, three times the number in any other New Jersey public high school.71 The large majority of the non-resident students were white and lived in Cliffs or Englewood, which on its face suggests that Tenafly’s tuition policy exacerbated the racial imbalance within DMHS. This issue will be explored more carefully later.
The tuition policy was clearly beneficial to Tenafly’s schools. At its peak, it generated over $500,000 in additional revenue, enabling the district to maintain the breadth and depth of its high school’s course offerings.72 Tenafly also argued that the policy increased the diversity of the school; 6 percent of the tuition-paying students were black or Hispanic, as compared to 1 percent of the residential school population.73 Still, the policy did not meaningfully increase diversity, as the total number of African-Americans increased from only two students to five students in a school of 700 for the 1983-84 school year.
The enrollment figures resultant from the tuition policy demonstrate that an increasing number of Cliffs parents were paying to send their children to Tenafly High School as a substitute for a free education at DMHS. The next logical step for Cliffs, then, was to establish an official sending-receiving relationship with Tenafly. "Parents, by paying to have their children attend THS, are expressing their desire to keep their children in public education rather than private schools," argued Cliffs Trustee Carin Geiger.74 "These are people who believe in public education." Beginning in 1985, when only three of fifty-five Cliffs’ graduating eighth-graders indicated they would attend DMHS, rumors surfaced about a potential transfer.75 A group of Cliffs residents confronted the Englewood Board inquiring about the Cliffs Board’s plan, but both Boards refused to comment. As if walking on eggshells, afraid of self-incrimination, Cliffs Trustee Arlene Wiczyk told a group of protestors, "I’m sure you realize that we have strict legal restraints on us. If there is anything the state will let us do, we would like to do it as nicely, calmly and as cordially as possible."76
The race question was raised explicitly in Cliffs and Englewood. Former Cliffs Board trustee Wendy Gottlieb admitted, "There’s absolutely no question. The Englewood Cliffs community doesn’t send their kids to [DMHS] because it’s an 80-percent black high school."77 She later stated that "Tenafly is very similar to Englewood Cliffs, educationally, socially, and racially, and the bottom line is that we don’t want our kids at [DMHS]."78 One white Cliffs parent testified that his daughter had been exposed to "ostracism and polarization along racial lines, which had caused the temporary effect of causing her to hate going to school."79 Other Cliffs parents cited social concerns for their children: "When we heard that there were only going to be three kids from [our daughter’s] class at [DMHS] next year, that’s a different situation."80 Englewood residents, though, were convinced that race was the dominant factor. "What else could be the reason?" asked the Englewood PTA president.81
In September 1985, the Cliffs Board took action to remove its students from Englewood, hiring a former state attorney general as its representative before the State Board of Education. An Englewood Board member charged that the move amounted to "out and out bigotry."82 Englewood stressed that its academics and facilities were excellent, and that race was the sole factor in the Cliffs decision. Dr. Adler, the Englewood superintendent, declared that the state should not ratify the right of a community to "buy its way out of what it claims to be an inadequate program."83
To no one’s surprise, reports surfaced several weeks later that Tenafly was Cliffs’ first choice as a sending district. If Cliffs’ motion were ultimately successful, then all Cliffs students would have been able to attend THS tuition-free. In an official relationship with Cliffs, Tenafly stood to gain an additional $300,000 annually,84 and its declining enrollment situation would have been swiftly erased.85 One wrinkle did emerge: sources told the Bergen Record that Tenafly had approached Cliffs, proposing the relationship to the surprise of the Cliffs Board. Both sides quickly denied the report. Preempting a lawsuit, Penelope Young, then president of the Tenafly Board, insisted, "We did not solicit them to come here as a sending-receiving relationship, and we did not solicit their students to come here as private students."86
Tenafly’s Board quickly and unanimously agreed to Cliffs’ proposal. Neither Board commented on any potential complications resulting from the race issue, despite Englewood’s publicly aired accusations that the move was racially motivated. Cliffs filed its official petition in December. The Record’s editorial page, while acknowledging that the issue "is more complicated than a simple racial dispute" and that it "would be hard to argue that [DMHS] is a better school than Tenafly," urged the Commissioner of Education to deny Cliffs’ petition. The state should not "promote a policy of racial segregation, to accelerate the pattern of white flight."87
The determination of what course the situation would follow was in Englewood’s hands, and the district would have to determine its position quickly. One resident voiced frustration at Cliffs’ "annual kerfuffle" about withdrawing its students from DMHS, and urged the Board to "let ‘em go, wave goodbye," and not to put money into lawyers’ pockets.88 Also, economically, "Englewood stood to lose hardly anything."89 Others demanded a legal fight to prevent what seemed like a racially motivated decision. Lawyers for Englewood presented the school board with a series of options on the Cliffs situation. The Board could simply have agreed to let them go, or it could have sued to prevent the severance. It decided to sue, and then pressed further. Englewood’s primary lawyer Arnold Mytelka said, "winning on the severance issue would be a Pyrrhic victory. It jumped off the page that we ought to ask for an injunction."90 The injunction would prevent Cliffs residents from availing themselves of Tenafly’s tuition program. More practically, the injunction sought to limit Cliffs students’ choice of public high schools to one, DMHS. Should it work as intended, with many of the Cliffs and Englewood tuition students at THS returning to DMHS, the injunction would help to alleviate Englewood’s racial imbalance.
The Englewood Board of Education and its lawyers also proposed a more radical remedy. Since Cliffs’ petition was perceived as racially motivated, Englewood seized the opportunity to shed light upon the racial imbalance of its high school, noting the constitutional provision against "being segregated" in New Jersey public schools. The state had set no specific guidelines as to what constituted a segregated school population. Should a school’s racial population reflect the greater population in its immediate district? Its county? New Jersey? "Essentially, the law says that you have to do the best you can. We felt that the other two methods [preventing severance and imposing an injunction] would be ineffective remedies," said Mytelka. "Ultimately regionalization was the only way the problem could really be solved."91
On December 23, 1985, a quarter-century after an intra-district attempt to combat racial segregation, and several attempts by a heavily white and wealthy sending district to sever all ties, the city of Englewood’s Board of Education brought litigation against Tenafly and Cliffs demanding the creation of a regional high school district to alleviate the unconstitutional segregation of students in its 90 percent black and Hispanic high school.
The proposal initially met both shock and dismissal in Tenafly and Cliffs.
Perry Levinsohn, a Tenafly school board member, called the regionalization
petition "the work of lawyers who want to cloud the only issue, and that
is: Can Englewood Cliffs leave Dwight Morrow?" Not understanding the scope
of the measure, he continued, "It is really not our problem; we only will
accept the Englewood Cliffs students if all the rules are met."92
Cliffs Trustee Wiczyk called the regionalization plan "far-fetched." She
said it was "not a source of concern."93 No one realized that
this was only the beginning of a fourteen-year struggle. As Mytelka soon
discerned, "the case grew like Topsy."94
Chapter 3: From the Fiefdoms’ Lawyers
Procedurally, cases involving sending-receiving districts in New Jersey commence at the Office of Administrative Law, where a judge acts as both fact-finder and adjudicator and makes his recommendations to the state’s Commissioner of Education. The Commissioner’s decision can then be appealed in succession to the State Board of Education, the Appellate Division of the Superior Court, the Supreme Court of New Jersey, and the United States Supreme Court. After the Commissioner’s decision, the burden placed upon the appellants to win a reversal is very steep: a higher judicial body must find that the Commissioner misinterpreted the law, or acted "arbitrarily, unreasonably, and capriciously." Administrative Law Judge Kenneth Springer scheduled fifteen days of presentations on the first petitions in the Englewood case. The judge underestimated; he conducted an extraordinary ninety-nine days of hearings that generated just under 20,000 pages of transcripts. In mid-1986, the Record reported that "the litigation is expected to be costly for all three districts," with Tenafly alone providing $47,000 for legal costs that year.95 Two weeks before Springer announced his decision, the districts had spent an aggregate of $3,671,647.65 on the litigation.96
Englewood’s three-pronged counterattack (to deny severance, to impose a tuition injunction on Tenafly, and to regionalize the three districts) challenged the government to fulfill its constitutional responsibilities in the heart of the politically conservative Ronald Reagan era, a time when concerns about racial balance as the remedy for inequitable educational opportunity came under severe attack. The arguments presented by Englewood in 1986 were similar to those made in hundreds of desegregation cases nationwide since Brown: a segregated education created a stigma of inferiority among socioeconomically disadvantaged students, and minority students must study in an integrated environment to succeed in a multicultural world. Moreover, the New Jersey Constitution erased the de jure/de facto distinction as it provides students a positive right to attend non-segregated schools, and the state Supreme Court had granted the Commissioner of Education the power to cross district boundaries in fashioning a remedy to school segregation. Both of these points deserve examination. Does achieving greater racial balance improve educational opportunity for all students regardless of race? Even if it does not, the official interpretation of the New Jersey Constitution held that balance does provide greater opportunity, and the State Board of Education’s official policy declarations explicitly declare that racial imbalance creates a handicap to the education of all students.97 With those guidelines, as established by the state Constitution since 1947, by the state Supreme Court since 1965, and by the state’s most powerful educational policy making body since 1969, how did New Jersey gain the dubious distinction of becoming one of the four most segregated states in the country?
The pursuit of racial balance, as opposed to attaining more equitable funding and facilities, has its foundations in the "harm and benefit thesis." This argument asserts that all types of segregation are harmful to the social, psychological, and educational development of all children, while desegregation (defined as racial balance) is beneficial for undoing the damages caused by segregation. By including a citation of numerous psychological studies demonstrating that segregation produces a stigma of inferiority that affects the "hearts and minds" of segregated students, Brown v. Board of Education gave the harm and benefit thesis an enormous boost, elevating it from academic theory to moral authority.98 Prejudice could be reduced and stereotypes eradicated by extended interracial contact, toward the ultimate goal of reducing inequalities in education and employment. "Any serious move toward equal opportunity," asserted leading academic desegregation advocate Gary Orfield, "must deal with race and educational opportunity."99 Commenting on the federal dismantling of desegregation laws, he added, "We’re moving toward a society where the norm is separate and unequal. If there were some other reforms that might help inner-city kids it would be one thing. Instead, we keep slamming the door on any connection with middle-class possibilities."100
Critics of the contact theory see a fallacy in pursuing integrated schools. Why does a black student need to sit next to a white student in order to receive a thorough and efficient education?101 Tenafly School Board President Sherri Lippman said, "the argument that blacks must be in the presence of a majority of whites in order to succeed is very damaging."102 In contrast, Englewood’s lawyers and leaders based some of their arguments on the contact theory, and saw a moral imperative in achieving integration. "We cannot adequately prepare our children to compete and thrive in a diverse, multicultural, multiracial world if we educate them in segregated schools," insisted Englewood Parent Teacher Organization chair Marion McKenzie.103 Invoking tensions in the Balkans and Northern Ireland as examples of why groups of people cannot live separately from each other, Englewood lawyer Mytelka said, "it is difficult to see how democracy can survive in an environment with segregated schools."104
Since Brown, studies on the validity of the harm and benefit thesis have yielded mixed and oftentimes controversial results. David Armor examined research on the effects of desegregated schools and concluded that socioeconomic status of black families, not school segregation by itself, is largely responsible for differences in academic performance.105 In addition, some research turns the harm and benefit thesis on its head. Most African-American students have higher self-esteem than whites, and in a statistically significant number of studies, black students’ self-esteem decreased as a result of desegregation plans. As for an improvement in race relations due to racial balance, the results have been inconclusive. Armor argued that "some social scientists and civil rights groups have oversold the policy, promised more than it can produce, and thereby implied that its benefits always outweigh the costs."106
These disagreements aside, the clear constitutional provisions for racial balance remain entrenched in the State Constitution, and precedent was set in 1971 to reach over municipal boundaries in order to achieve that balance. Why has the state not taken more action to enforce its constitutional principles? "The animal is called home rule," said Mytelka. New Jersey has more school districts per square mile than any other state, "each of which believe they are their own fiefdoms." Mytelka argued that the philosophy of home rule, which casts geographical borders as immutable barriers between municipalities, must be rejected in order to achieve effective desegregation.Larger school districts, which are more common in the South, would automatically result in less de facto segregation in public schools, as residential segregation often results in pockets of concentrated minorities surrounded by whites.107 Englewood argued that since its high school and THS are 2.4 miles apart, students would not have to travel long distances to achieve diverse schools that would comply with constitutional requirements. Still, the state has not forcibly regionalized any districts to achieve greater racial balance since Morristown and Morris Township in Jenkins.
Not surprisingly, a regional plan met with great resistance from the districts faced with losing absolute autonomy and control over their schools to remedy racially segregated learning environments. Tenafly residents of the 1980s and 1990s, after all, were not the same people who formed their own borough in 1894 to avoid paying for public works disproportionately serving the poor, nor Tenafly’s anti-Semites of the 1960s, nor Tenafly’s bigots who promoted racial steering. These were people who purchased homes in the district because of the reputation of its schools and the active community involvement in public education. "The public schools are an insular and prideful part of the town. It is the primary reason why people move here," noted a Tenafly-based real estate agent.108 Walter Hemberger, mayor of Tenafly in 1995, echoed these remarks: "The schools are close to the heart of this community. They are the reason [residents are] willing to pay more for homes and taxes. Any change in the schools will result in a change in this town."109 Councilwoman Martha Kerge was more direct: "We will not give up so easily our excellence, our life’s work, our life’s savings, and most importantly our right to home rule, which we believe equals quality education."110 Tenafly resident William Kelly was more crude: "I don’t really give a damn about Englewood. I don’t want to be Englewood’s solution."111 Just like the church rector penned in 1969, Tenafly still took considerable satisfaction with itself and its schools. "Wealth has its privileges," writes David Goodman about school funding disparities. "After all, moving to a town with good schools is a time-honored rite of yuppie passage."112
As Goodman suggests, issues of educational equity require broad, systemic solutions that sometimes demand measures that call into question traditional views of what constitutes the "home" of "home rule." Tenafly residents were steadfast in their belief that educational responsibilities end at their town’s border. This perception of a delimited local space is self-reinforcing. Patterson notes that "the rhetoric of local control functions to strengthen the appearance of separateness or distinctness from Englewood."113 Every "home," however, is not equal; extensive zoning for single family housing encourages a large base of upper and middle class families who are more likely than poor people to stress education in the household. Patterson added, "the emphasis on local control elides the unequal resources available in each locality."114
In many ways, the notion of borders between towns as immutable can be justified. Though the histories of the districts are intertwined, Tenafly residents have never been active in the Englewood educational and political systems through taxation or representation. Before moving to a community, prospective residents carefully examined the schools which their children would attend. Tenafly’s primary lawyer James Rothschild, Jr. emphasizes the importance of this "purchase" of education: "Almost every parent is a serious consumer of educational services because they are concerned about their children."115 Once their children enroll in the school system, parents take a more active, participatory role in the public schools, discussing with other parents educational issues such as quality of teachers, curriculum, and school facilities. Thus, expressed in this way, Tenafly residents justified their choices based not on race, but on class and educational interests.
This brings us back to the fundamental questions of the 1985 lawsuit. Would the state compel one municipality to sacrifice local control of its schools if it executed a policy that exacerbated racial imbalance in the schools of its neighbor? How could the state balance local autonomy with a constitutional mandate for school integration?
A myriad of arguments arose during the ninety-nine days of hearings before the Administrative Law Court. Cliffs had to meet a large burden of proof in order to win severance from Englewood. To that end, there was much effort to cast DMHS as 1) an inferior institution and 2) a school that would not suffer a "substantial negative impact" if the state granted termination. A Cliffs factfinder found DMHS to be the worst school he had ever seen, with "fundamentally serious flaws" in the school’s instructional program. The appointed Englewood school board, unaccountable to the electorate, had squandered the educational quality of DMHS. The curriculum at DMHS did not meet the "more sophisticated academic needs" of "students of Cliffs’ calibre." Cliffs also cited a watered-down curriculum, high dropout rates, low student attendance, substandard facilities, safety concerns, administrative instability, and the lowest average standardized test scores in all of Bergen County. Since the numbers of Cliffs students attending DMHS had been falling steadily for years, demonstrating a waning confidence in the school, the loss of twenty-one Cliffs students in the 1987-1988 school year would just hasten the inevitable and not seriously damage the school economically.116
Englewood took issue with each of Cliffs’ arguments, and rebutted them with attacks on both Cliffs parents’ stereotypically negative perceptions of a predominantly minority learning facility and the racially homogenous atmosphere of Tenafly High School. Defending its schools as "excellent," Englewood disputed the perception that the DMHS curriculum was moving away from academic core subjects and toward specialized courses like black history, noting that the school still offered an average to above average number of Advanced Placement courses. Cliffs students attending DMHS, who comprised a disproportionately large portion of the AP student population, still matriculated to selective universities. Even though the average test scores at the school may have been low, "there is no allegation that Cliffs students perform poorly on any standardized tests because of attendance at DMHS."117 Low standardized test scores and high dropout rates could be attributed to the demographic characteristics of the school population: poorer students at DMHS brought with them a lower "baseline of skills." Nationally, mean SAT scores for 1987 had a strong, positive correlation to each of eight income and five parental education levels. Englewood called it unfair to compare test scores at its school with other schools in Bergen County because of the relative affluence of other schools’ populations. Besides, the presence of students from low-income families, despite lowering the mean test scores for the school added "an important educational dimension to the school," making DMHS "more reflective of the American common school tradition."118 DMHS provided a "unique opportunity for social learning."119
Contesting Cliffs further, Englewood argued that a severance would be "devastating to DMHS" and would "decimate" its program, because "where there are few white students, every single one counts," and "those who will be left will be the poor, the underachievers, the ones who have no options."120 Official sanction of white flight from Englewood by means of granting a new Cliffs/Tenafly relationship would encourage more white parents in Cliffs and Englewood to leave DMHS by signaling to Englewood parents that DMHS was not a quality school. Englewood powerfully concluded that severance would demoralize the DMHS faculty and students and
Tenafly’s tuition policy, Englewood argued, was damaging to racial balance in DMHS and must be enjoined. During the length of the policy, 82.3 percent of the 423 total tuition students were from Englewood and Cliffs, 94 percent of whom were white or Asian. Englewood decried Tenafly’s "repugnant" policy; a public school should not act as a private, selective institution and benefit financially and educationally at the expense of another. Should the court grant a tuition policy injunction, Englewood’s experts believed it would signal a strong endorsement of DMHS by the Commissioner of Education. They estimated a 20 percent rebound of attendance by Cliffs students, plus an additional 20 percent rebound of white students from Englewood who attended private schools.
Englewood maintained that no pool of whites existed within the city to meaningfully balance the school population. Although the city’s population of school-aged children was 37 percent white, the large Orthodox Jewish community uniformly sent its children to yeshivas (private religious schools) no matter how good the public schools may have been. That population could not be seen as a realistic base from which to draw whites to DMHS. It is difficult to estimate the percentage of these families relative to the overall white population—even Englewood’s lawyers were not sure. In the 1986-87 school year, Englewood noted that there were more than 700 Orthodox Jewish (white) Englewood children not attending the public schools. At about the same time, about 200 more Englewood whites128 and 200 more Englewood blacks attended secular private academies.129
Finally, Englewood made its plea for a court-ordered regionalized high school, the most far-reaching and controversial aspect of the suit. Englewood would have to prove that its plan was "feasible, practicable, and workable" and would "cause no practical upheavals." Precedent was not clear in the case: Jenkins ruled that the border between Morristown and Morris Township could "readily be bridged," but also included the important caveat that the towns were essentially a "single community, probably a unique one in our state." In terms of feasibility, neither facility, THS or DMHS, would be large enough to house a regional school, so either a split school would be required (with a probable configuration of ninth and tenth grades in one and eleventh and twelfth in the other), additional space would be added to one of the existing buildings, or a new school would be constructed. With little elaboration, experts for Englewood predicted little to no white flight from a regionalized high school.130 Furthermore, Englewood asserted that the towns did actually constitute a single educational community. Among the varied arguments presented: some Englewood students attended summer school at THS; the towns shared a geographical border, a common hospital and library facilities; and residents exhibited similar shopping patterns (i.e., residents from both towns go to the mall). In sum, the city claimed that regionalization would create a more racially balanced student and faculty population to enhance social learning, solve the declining enrollment problem, and provide financial savings through economies of scale. Englewood did not present specific school configurations for its proposed regional district, but insisted that its children must be afforded the chance to study in an interracial environment so that they could compete and thrive in a diverse, multicultural society.
Tenafly’s attempt to eliminate its declining enrollment problem suddenly created a situation that posed a realistic threat both to the tuition policy that annually grossed the district over half a million dollars and to the autonomy of its schools. Any of Tenafly’s Board members or attorneys need only have glanced at the Bergen Record to perceive Englewood’s bitterness toward a potential union between Tenafly and Cliffs. On the defensive, Tenafly was forced to prove its tuition policy legal, that Cliffs should have the right to choose THS in a new sending relationship, and demonstrate that a regional district would be unfeasible, unpractical, and/or unworkable.131
The district’s tuition policy was never intended to harm Englewood. Tenafly’s lawyers charged that Englewood "did not produce one scintilla of evidence to support its accusations that Tenafly… acted with discriminatory intent."132 The policy was implemented solely to solve its declining enrollment problem. Moreover, the policy could not be illegal, as its structure and tuition amount were similar to those in other districts, even if Tenafly’s policy was utilized more actively than were those in other schools. Tenafly’s policy in the 1980s could not have exacerbated the racial imbalance problem at DMHS, given that Cliffs demonstrated its lack of confidence in the school when it tried to sever its sending relationship with Englewood in 1977. Tenafly lawyer James Rothschild suggested that the tuition policy "had no effect on the number of Cliffs students attending [DMHS]. The worst that can be said about it is that it harmed a few private schools."133
An injunction against Cliffs students at Tenafly would be ineffective, argued Tenafly. Contradicting an Englewood expert, a poll conducted by experts retained by Tenafly and Cliffs indicated that no parents who sent their children to THS under the tuition policy planned to send their children to DMHS should the court have taken action. Thus, DMHS would not benefit at all from an injunction. Cliffs parents simply perceived the quality of the education available at DMHS to be inferior, and perception, argued experts from Tenafly and Englewood, was the primary motivating factor behind parents’ decisions as to where to send their children to school. Given that parents spend so much effort in choosing a school for their children, argued Rothschild, "they’re not going to be the least bit influenced by somebody called the Commissioner of Education."134 As for the real public perception of an injunction, Tenafly argued: "Calling a measure which aims to keep students in a particular school through a legal prohibition against going elsewhere a ‘ringing endorsement’ of that school is akin to saying that the Berlin Wall is a ‘ringing endorsement’ of Communism."135
Should Rothschild’s suggestion that the Cliffs and Englewood students who paid to attend THS would have attended private school instead of DMHS hold true, then Tenafly should be absolved of the accusation that it siphoned Cliffs students from DMHS. Examining the hard data (see Appendix, Table I), the decline in overall white enrollment in DMHS follows a forty-year-long downward trend. Thus, from a broad context, no incontrovertible evidence proves that the tuition policy was directly siphoning whites from DMHS who would otherwise have gone there.136
Tenafly, citing its large Asian population, argued that THS was not segregated, but had an extremely diverse student body. Unlike DMHS, Tenafly’s school population fairly reflected the "wide range of races, ethnic backgrounds and socioeconomic status of the community which it serves."137 "To Englewood," Tenafly asserted, "‘segregation’ is a term that is capable of many definitions which can change in chameleon-like fashion as the need arises."138 DMHS’s racial balance problem was "caused by its inability to attract White youngsters from within Englewood."139 Additionally, there was no funding discrepancy requiring remedy, as Englewood spent 15 percent more on its students per capita than did Tenafly.
Tenafly took special offense to being singled out for regionalization, and the lawyers expressed this feeling explicitly: "The Englewood BOE’s action was little more than a tactic to punish the Tenafly BOE for its willingness to accept Cliffs children under a relationship with the Cliffs BOE."140 The move proposed "a mammoth undertaking." It was "unprecedented," "mind-boggling," "draconian," and "legally infirm." Furthermore, "Englewood has arbitrarily selected another autonomous, unrelated district and targeted it for takeover."141 Englewood’s situation was a "fortuitous result of housing and school attendance patterns," 142 adding, "Why is this Tenafly’s fault?"143 Tenafly asserted that the "single community" doctrine of Jenkins was an essential tenet of that ruling, and there existed no single community between it and Englewood. Because Jenkins regionalized a "single community," there was no resultant loss of "home rule," a philosophy fiercely defended by Tenafly. More forcefully, "Jenkins does not give the Commissioner or State Board carte blanche to disregard district lines wherever and whenever doing so might allow for the creation of consolidated schools having some ill defined ‘racial and socioeconomic balance.’"144 The borough further argued that Cliffs and Tenafly, sharing residents of similar socioeconomic backgrounds to each other, constituted more of a single community than either did with Englewood. A Tenafly expert testified that there is "little, if any, meaningful interaction between residents of the three communities."145
Tenafly then questioned the "workability" of Englewood’s plan required by Jenkins. Its arguments focused primarily on white flight and resegregation within a regional school. Tenafly’s superintendent of schools estimated that as many as 75 percent of the district’s parents would refuse to send their children to a regional school with Englewood. Community support so essential to the success of Tenafly’s schools would drop precipitously. Regionalization "would cause wholesale upheavals."146 Lest this resistance be seen as racially motivated, Tenafly insisted that the impending attrition was due solely to the perceived decline in the quality of the education to be offered to its children and loss of local control of the school, because in a regional district, Tenafly would maintain a minority of votes on the school board.
The regional school would also be "impractical" and "unfeasible" because of increased costs in constructing new facilities and in maintaining a regional district, including increased busing costs.147 Also, in larger schools, students could be "crowded out" of activities. For example, there still would be only one starting football team and one editor-in-chief of the student newspaper. Doubling the population base would increase the competition dramatically for those elite positions. A "sense of community" would be lost, and a regionalized school would create a "bi-polar" student body that could lead to resegregation within the school, "by virtue of the separation of highly motivated, highly academic children from those less motivated students, who may need increased attention in academics, discipline and attendance matters."148 The "distinctive culture" in each school would be destroyed; THS would lose its academic atmosphere of student independence and participation, and DMHS would lose its strong structure of rules and regulations. Tenafly was careful to note that one system was not better than the other, but that "it is impossible to emphasize student autonomy… and at the same time have a structured, rule oriented culture with an emphasis on discipline."149 The state should not issue a ruling "against" Tenafly that would "benefit private schools and parochial schools at the expense of public education."150 Tenafly concluded that
The judge praised DMHS as an institution capable of providing students with a "good solid education." Yet Springer found that the Cliffs Board acted in good faith and with "genuine educational reasons" for seeking to send its students to Tenafly. Among the reasons why THS was legitimately preferable were a more suitable academic program, less emphasis on discipline, better facilities, greater administrative stability, and a poor relationship between the Englewood and Cliffs Boards. However, this did not justify termination of the sending-receiving agreement. Because "DMHS is so precariously short of white and Asian students, loss of even a small number of Cliffs students would have a significant impact on racial balance." Even though only fifteen Cliffs students still attended DMHS, comprising 1.6 percent of the general school population, those fifteen represented 16 percent of the school’s white population. Even though there would be little "material loss" due to those students, their absence would be "magnified by symbolic losses," thus causing an "unacceptable demoralizing influence," and a "substantial negative impact." Consequently, the judge denied the petition for severance. Because "the applicable legal standard does not depend on probing the human heart to ascertain the subjective intent of individuals," the judge did not have to speculate why Cliffs parents were no longer sending their children to DMHS.152
Springer was critical of the Tenafly district, and especially of its tuition policy, which he variously described as "repugnant," "novel," "discriminatory," "subversive," "illegitimate," "unusual," "pernicious," "undermining," "mischievous," "characteristic of private school placement," and, most troubling for Tenafly, "clearly illegal," "plainly against the law," and worthy of condemnation. Tenafly, wrote Springer, "has been fishing in troubled waters." Because of the admissions requirements and substantial tuition, the policy drained upper income students from DMHS. Tenafly’s tuition policy had "the clear effect of enticing white and Asian students away from a nearby public high school already experiencing racial imbalance, thereby contributing to a polarized situation." The "beggar-thy-neighbor" policy could be described as "cream-skimming" the "more highly motivated and academically competent from its neighboring school district, at the expense of educational quality at DMHS."153
To Springer it was "immaterial" that the tuition students at THS would not attend DMHS under any circumstances. He stressed that "the key facts are that THS enrolls 76 Cliffs students and 16 Englewood students who, by all rights, belong at DMHS if they choose a public school." If the Court were to consider where Cliffs students would potentially go to school, the "process may be misinterpreted as a tacit encouragement of flight from the public schools in order to circumvent the law." That would be irresponsible governing: "Government doesn’t stick its toe in the water or hold a plebiscite to determine whether or not a public school may adopt discriminatory admission requirements in contravention of strong state policy." The government cannot intervene in parents’ decisions to send their children either to public or private school, but it must follow state objectives when strictly engaging public school policy. But what if the policy was not the main cause of the loss of whites at DMHS? Springer conceded that the decline began before Tenafly’s tuition policy was initiated, and that the policy was not motivated by improper racial considerations, but that "it is enough that the Tenafly Board has set in motion a policy which exploits another district’s weaknesses for its own benefit."154
Regionalization was the last proposal to be addressed. "Apart from the accident of shared geography and history," wrote Springer, "Tenafly, Englewood and Cliffs are autonomous and distinct communities." The single community standard from Jenkins was not met. In addition, "the disadvantages of regionalization substantially outweigh the advantages," and "the whole will not necessarily be better than the sum of its parts," creating "a serious risk of causing irreparable harm to existing excellence." The money for a regional school "would be better spent on improving educational opportunities in the existing districts." Also, the judge believed that the forced merger of the schools carried the greatest risk of white flight, and would not necessarily be the best method of achieving racial balance at DMHS.155
Such was the Administrative Law Judge’s recommendation to New Jersey Commissioner of Education Saul Cooperman, who had the option of ignoring Springer’s opinion. Cooperman also heard an earful of criticism on the Springer decision from all sides, each of which felt slighted by the decision.
Tenafly insisted that its tuition policy was legal. Many districts in the area charged tuition and used selective admission requirements, and Tenafly should not be punished because a large number of people chose to pay for a Tenafly education. Tenafly was not siphoning students from Englewood; "the only thing ‘draining’ students from DMHS is DMHS itself."156 Just because some people were less able to pay tuition for public school was not a proper reason to curtail choice. If anything, "school choice" should remain and the government should consider ways to extend the opportunity to those who could not easily avail themselves of it. Banning Cliffs’ and Englewood’s students from choosing any high school other than DMHS made them "educational pariahs," argued Tenafly.157 Simply, the Commissioner should reward, and not penalize, excellence.
Englewood, having succeeded on two of the suit’s three objectives, continued to stress the need for regionalization. Not only would a regional school help the state fulfill its constitutional obligation of racial balance, but Tenafly students would also benefit from a wider curriculum and a more diverse student body. However, Tenafly refused to see it that way and responded that the suit
The next step in the appeals process was to the State Board of Education. Again, the rhetoric escalated. Tenafly asserted that Englewood’s injunction request "asks the State Board to bludgeon parents into sending their children to a school they find to be educationally unacceptable."159 Although the Administrative Law decision recognized that DMHS was capable of providing a "good solid education," Tenafly asked, why was it a "vice for parents to seek an ‘excellent’ education for their children?"160 For Cliffs, the injunction was "officially sanctioned racism" against whites. All parties hinted that they would appeal to the United States Supreme Court to win their case.
The State Board’s ruling in April 1990 upheld the Commissioner’s. Tenafly’s tuition policy was illegal as implemented, and Cliffs’ petition for severance and Englewood’s motion to regionalize were both denied. The Board also extended the injunction against Tenafly’s policy to all other districts in the state; no Cliffs or Englewood students could attend any public high school other than DMHS. Significantly, the Board eliminated the Jenkins "single community" standard, but it still refused to exercise its power to regionalize "at this juncture" because Englewood failed to prove that remedies short of regionalization would not be effective. The Board predicted its remedy of an injunction would improve the racial imbalance situation at DMHS, and ordered the new Commissioner of Education John Ellis to monitor the pupil population for five years and present an annual report to the Board analyzing the effectiveness of its remedy.
The State Board decision was appealed, this time to the Appellate Division of the Superior Court of New Jersey. The process was slow and exhaustive. The stacks of legal briefs piled ever higher, and the monetary and emotional costs snowballed. In 1990, after six years of litigation, no side showed signs of backing down.
Before the Appellate Court ruled, Commissioner Ellis issued his first report to the State Board on June 5, 1991, and concluded that the racial situation was worsening. He noted that, in 1990, only one of thirty-eight graduating Cliffs eighth-graders attended DMHS in the fall. One year later, none of the thirty-two Cliffs graduates matriculated to Englewood’s high school. Guided by those statistics, Ellis recommended that a regionalization study be undertaken by the Department of Education, a ruling contrary to Commissioner Cooperman’s decision two years earlier. The State Board modified that proposal, expanding the scope of the study to include "all potential configurations K-12… as expeditiously as possible." Clearly, the Board’s predictions were wrong. The injunction against the Tenafly tuition policy did not bring Cliffs students back to DMHS from THS, nor did the Commissioner’s "stamp of approval" of the quality of DMHS initiate an influx of white Englewood students to the city’s public high school.
Cliffs still wanted to sever its relationship with Englewood. The results of Judge Springer’s injunction did not bear out his predictions. Cliffs lawyer Joel Siegal testified that "we are faced with a decision that has gotten us nowhere." When asked to concede that DMHS was an "excellent institution," Siegal said, "Englewood may indeed have a fine school, but the people in Englewood Cliffs think Tenafly’s is better."161 The proposal for regionalization was merely "a raw effort at annexation," and a "consequence of not having any rules in place."162 Cliffs also invoked recent federal court affirmative-action decisions that subjected racial classifications to strict scrutiny, arguing that the injunction and the denial of severance for racial balance purposes discriminated against whites.
Englewood stressed that regionalization was the only remedy that would expand the population base widely enough to properly balance the school racially. According to the State Board’s own estimates, the maximum effectiveness of the injunction would have resulted in a 78 percent black and Hispanic school population. Without considering white flight, Englewood asserted that regionalization could create a student body that was only 40 percent minority.163 Englewood derided Cliffs residents as "self-righteous" for threatening never to send their children to DMHS, under any circumstance, and that the Cliffs claim should go unheeded by the Court. Responding to Tenafly’s defense of its "existing excellence," Englewood asserted that the "‘existing excellence’ includes a constitutional deficiency—racial imbalance—that must be remedied."164 Finally, "in a New Jersey that has large black and Hispanic populations, constitutional racial balance in the public schools is not achieved with Asian students alone."165
Tenafly had already argued that the large Asian population did create a racially balanced school, but the district’s defenses took a notably different turn at the Appellate level. Because the State Board vacated the "single community" standard, Englewood had more leverage in its pursuit of a regionalized school. Thus, Tenafly conceded the loss of Cliffs as a potential sending district as well as the drop in tuition students from Englewood and Cliffs. Instead, its focus moved toward a full defense of the rights of all educational districts to home rule. In doing so, Tenafly challenged the necessity of a regionalization study because it increased the possibility of the regionalization that the district opposed. Instead, it offered a series of ten alternative remedies, including the creation of a "magnet" school,166 a regional summer school improving DMHS, inter-district extra-curricular and co-curricular activities, and, audaciously, regionalization of DMHS with schools other than Tenafly, on a "presumably voluntary" basis.
Otherwise, Tenafly reiterated its standard positions. Should regionalization be ordered, it argued, there would result enormous monetary costs and wholesale loss of community support. After the State Board decision, Tenafly cited with frequency that over two-thirds of the schools in New Jersey had greater racial imbalance than either DMHS or THS. Tenafly warned of "educational takeovers" that would destroy home rule and bring chaos.167 Furthermore, if the Court granted regionalization in accordance with the goal of a "thorough and efficient education," then that same mandate could be applied to force regionalization almost everywhere. Because the state did not define "racial balance," precedent in this case could allow schools to be forcibly merged for not having enough blacks, Asians, or any other specific minority group. Extending the logic, whites educated in New Jersey’s more rural schools, where typically there are few African-American students, were also in violation of the constitution’s anti-segregation clause.
More legal briefs were filed at the appellate level. The Department of the Public Advocate filed an amicus curae ("friend of the court") brief in support of Englewood’s regionalization proposal. This case, it argued, "provides the court with an opportunity… to eliminate de facto segregation among school districts."168 The NAACP also filed a short brief on behalf of Englewood’s petition.
Meanwhile, in the New Jersey Senate, Gerald Cardinale, a Republican representing Englewood Cliffs and Tenafly, sponsored a constitutional amendment that would prohibit any state agency from requiring a school district to merge with another. The proposal drew stiff opposition. Many civil rights leaders and educators who testified before the Senate Education Committee claimed the move was racially motivated. Keith Jones, president of the New Jersey conference of the NAACP, declared, "This represents the worst kind of political quick fix, pandering to racial fear and ignorance."169 One Democratic Senator who opposed the legislation warned, "We are about to be the first state to override the equal-protection clause and the anti-discrimination clause of the state constitution."170 Cardinale retorted on a cable television show, "You’re wrong if you think that merging with a neighboring district is going to be a quick fix to the problems that happen to exist in all urban communities, the problem of crime, the problem of drugs… It doesn’t boil down to race, it boils down to personal safety."171 In order to solve the racial imbalance problem, Cardinale suggested disbanding Englewood’s school district and redistributing its students to surrounding municipalities. The Senator’s proposal would require busing, but it placed the burden exclusively on minorities seeking an integrated education.
Two important events happened in June 1992. First, the Senate adopted Cardinale’s constitutional amendment to the cheers of dozens of Tenafly residents in the Senate gallery. Then, Justice Virginia A. Long delivered an exhaustive, detailed opinion, essentially affirming the decisions of the state administrative agencies.
Judge Long confided eight years later that she took home so much evidence in the Englewood case that she and her family could not eat at their dining room table for six months.172 The case was simple for the Appellate Court, she explained: "We had to decide whether there was substantial evidence in the record for the Commissioner to make this conclusion, not whether we thought it was wise, correct, or right."173 Noting that an "agency’s factual determinations are presumptively correct and will not be upset absent a showing that they are arbitrary, capricious, or unreasonable," Long agreed with the State Board’s determination that severance would result in a substantial negative impact at DMHS, and that a regionalization study should be implemented.174 The three-judge appellate court ruled that the State Board was correct in taking a long view in determining if the tuition policy caused a substantial negative impact. Presenting a vision of wide community responsibility, Long dismissed Cliffs’ claims that Tenafly would better fit the needs of its students: "each of [Cliffs’] so-called affirmatives is exclusively beneficial to Cliffs and fails to give a shred of consideration to the effect of severance on the students at DMHS."175 Tenafly was no educational utopia, for "with its miniscule black and Hispanic populations, [THS] is not a realistic forum for interaction among the children of different races." In rendering this judgement, Long conveniently ignored the large Asian population in Tenafly.
In response to the argument that Cliffs residents were being punished because of the rejection of DMHS by white Englewood residents, Long wrote that the State Board was correct in not considering Englewood children who chose to attend private schools. The "Commissioner’s authority is solely applicable to public education and the public school system," and "Englewood parents, like all parents, are free to send their children to private schools."176 Long dismissed Cliffs’ "at best, cynical" contention that the affirmative action cases, which placed "strict scrutiny" on racial classifications, were applicable in this case. The State Board’s action "clearly passes strict scrutiny," because Cliffs’ residents had engaged in white flight from DMHS, and Tenafly’s tuition policy facilitated that flight. Echoing Administrative Law Judge Springer’s urging of the State to prevent the appearance of "tacit encouragement of white flight," Long wrote, "To deny relief here would be to make the State a ‘passive participant’ in private discrimination."177 The Appellate Court also affirmed the State Board’s dismissal of the "single community" doctrine; the interpretation of the phrase by Cliffs and Tenafly would "eviscerate Jenkins, a result we will not allow."178 Reiterating that the merits of regionalization were not before the Court, Long concurred with the State Board’s commission of a study, as "it is hard for us to imagine any reasonable person challenging the power of the Board to ‘study’ an issue committed to its overall authority."179
The verdict was appealed. One year later, in a two-paragraph opinion,
the New Jersey Supreme Court affirmed the Appellate decision, including
the order requiring a regionalization study. It did not, however, "express
nor imply any position or opinion on the regionalization issue itself."180
The verdict was appealed, this time to the nation’s highest adjudicating
body. Without comment, the Supreme Court of the United States declined
to review the case. Soon after, Senator Cardinale’s anti-merger amendment
died in the state Assembly.181
Chapter 4: Whipping Up Hysteria
Through the course of the Englewood suit, the United States Supreme Court had been washing its hands of the whole desegregation process. The 1991 Dowell case ruled that federal oversight of the dismantling of segregated school systems must be temporary.182 Freeman v. Pitts the following year stated that "once racial imbalance traceable to the constitutional violation has been remedied, a school district is under no duty to remedy an imbalance that is caused by demographic factors."183 The Court essentially guaranteed that there would be indefinite tolerance of de facto segregation by the federal judiciary. "At some time," Justice Antonin Scalia wrote in a concurring opinion, "we must acknowledge that it has become absurd to assume, without further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools. We are close to that time."184 In 1995, the Court overturned a plan that created a magnet school district in Kansas City that sought to reverse white flight into the suburbs. The "interdistrict goal is beyond the scope of the intradistrict violation," the court announced in Missouri v. Jenkins.185 Justice Clarence Thomas, the African-American who succeeded Justice Thurgood Marshall, wrote in a concurring opinion that the magnet remedy "relies upon questionable social science research" and "rests on an assumption of black inferiority." Stressing that the Fourteenth Amendment violation inherent in de jure segregation was the basis of the Brown decision, Thomas added,
The perception of educational inferiority and unregulated chaos at DMHS remained pervasive in surrounding communities, as well as within Englewood. There were more violent incidents reported at DMHS than any other school in Bergen County in the 1991-92 school year, and test scores remained painfully low.188 In June 1995, Englewood’s superintendent of schools and the DMHS principal both resigned because of political infighting. Only 60 percent of DMHS’s juniors passed the state mandated and administered High School Proficiency Test in 1995. That score ranked lowest in the county, relative to a 91 percent passing rate in Tenafly. By 1997, only 46 percent passed the test at DMHS. The school’s graduation and attendance rates were also the lowest in the county in 1995, while per-pupil spending was among the highest. Newspaper articles appeared about how Englewood residents had lost faith in their schools; not only were white Englewood residents not enrolling at DMHS, but middle-class minority children were increasingly placed in private schools. In 1986, DMHS maintained a 10 percent white population, and a class of 219 graduating seniors. Nine years later, the senior class size shrunk to 105, with only a slight corresponding decline in the district’s school age population.189 One statistic remained unchanged: 65 percent of Bergen County’s African-American students went to school in either Englewood, Teaneck, or Hackensack, while average black enrollment in other county schools was 2 percent for the 1993-94 school year.190 The actual imbalance also worsened; by the 1995-96 school year, black and Hispanic enrollment reached 97 percent at DMHS.
The withdrawal of those with financial means from majority black and Hispanic schools was a decades-long phenomenon that spanned the entire country. As far back as 1970, in an article praised by the Nixon Adminsitration, Yale law professor Alexander Bickel suggested that despite the northern moral passion to right villainous southern wrongs, whites in the North would not tolerate integrated school systems. Identifying a "tipping point" where great numbers of whites left schools where they represented a minority, Bickel argued that "it is not very fruitful to ask whether the whites behave as they do because they are racists," but whether there were ways to prevent further white flight. He warned of inevitable white intransigence against desegregation plans, "for whatever reasons, more or less unworthy," especially when the desired results quite possibly might remain unachieved. He urged the country to improve schools first, as "nothing seems to be gained, and much is risked or lost, by driving the process to the tipping point of resegregation."191 Melina Patterson writes, slightly more critically, "people are anxious about the safety and education of their children, their investment in their homes, and the stability of their community. Racism becomes a component of self-interest even for people who would abhor and condemn old-fashioned forms of racism."192
Boston was thrown into turmoil during the mid-1970s because of a court-ordered busing plan. Since the federal courts after Milliken could not fashion a city-suburban remedy for the city’s de jure segregation violations, Boston’s poor, white, mostly Irish students were bussed along with its poorest blacks. Anyone with financial means could avoid the desegregation plans altogether by moving to the nearby suburbs, or by sending their children to private or parochial schools. Those without means reverted to racism, and pandered to prejudices.193 One popular white rallying cry posited that "the three R’s will be turned to Riot, Rape, and Robbery."194
In Boston, busing opponents took to the streets for prayer marches, and formed community groups to support neighborhood schools. By that time, argues Anthony Lukas, the term "neighborhood schools" took on a more complex meaning than merely the right to attend the school nearest one’s home; it suggested "a white school safe from black inundation."195 Others still insisted that they were not opposed to anyone’s skin color, but did oppose busing their children to faraway schools that maintained a poorer student population. As Ronald Formisano writes about the conflict, "antibusing action and opinion arose rather from the interplay of race and class, in admixture with ethnicity and place, or ‘turf.’"196
Formisano describes the resistance to busing in Boston as a case of "reactionary populism," typical of grassroots social movements that have arisen with frequency throughout America’s history. The movements "have been bundles of contradictory tendencies seeking greater democracy or opportunity, perhaps while simultaneously expressing intolerance or denying the legitimacy of certain group interests." For the poor whites, "fear of blacks…fed antibusers’ feelings of being trodden on, while their outrage at injustice and feelings of powerlessness often fed their hostility to blacks."197 Whites would not stand their neighborhoods being "overrun" and "invaded" by the black underclass, and resistance soared when these fears were heightened by court orders. A Globe poll noted that 13 percent of Boston’s whites did not disapprove of the use of violence to thwart forced busing.198
It is hard to conceive of Tenafly’s streets erupting with violence in protest of a regionalized school district. Tenafly and Cliffs antibusers lacked the hostility of Boston’s poor whites toward their suburban neighbors who were exempt from the desegregation orders. Instead, the protectionist attitudes from these towns stemmed from what they saw as a costly and overzealous lawsuit that would result in the destruction of successful existing educational programs. Most residents probably supported the abstract principles behind Englewood’s lawsuit. Nationwide, only 7 percent of whites in 1985 opposed the "principle of school integration." But taking their lead from President Nixon, 70 percent of whites opposed busing schoolchildren to achieve "racial balance" or "school integration."199
Through 1995, the three towns were essentially in the same situation as they were in 1988 after Judge Springer’s initial decision, only more bitter. The sour taste of years of litigation was plain in the language of the lawyers. For Tenafly, the dispute "has fueled the fires of resentment by allowing a district to excuse its failure to respond to the needs of the children it is supposed to serve by whipping up hysteria through unfounded claims of racial prejudice and segregation."200 The only substantive change over the course of the appeals process was that Tenafly took a sudden and aggressive interest in searching for a remedy to relieve the racial imbalance at DMHS, so long as Tenafly remained autonomous.
In accordance with the Commissioner’s order for a formal regionalization study, the State Board of Education in November 1994 awarded a $207,000 contract to independent policy designer Applied Data Services (ADS) to examine regional school possibilities.201 Tenafly objected, as ADS was a known supporter of forced busing remedies. At the same time, Tenafly hired magnet school expert David Armor, author of a book called Forced Justice criticizing court compelled busing, to survey the communities about their inclinations toward potential segregation remedies. Tenafly, after a ten-year war of attrition, was not going to stand for the loss of local control of its schools. By 1995, activist groups appeared in Tenafly, Cliffs and Leonia, acting as additional firepower to official and centralized local Board of Education resistance measures. Their aggressive lobbying led to the commission of a second regionalization study to Harry Galinsky, former superintendent of Bergen County’s Paramus school district, who was to concentrate on voluntary solutions for relieving the racial imbalance at DMHS that would not involve regionalization.
The ADS company released its controversial 650-page study in July 1995, proposing solutions that would involve students from up to twenty municipalities. The study suggested sixteen different configurations of three regional districts drawing students from up to six communities: Alpine, Edgewater, Englewood, Cliffs, Leonia, and Tenafly. ADS also offered a fourth option of creating a series of magnet schools. Some models were truly drastic, like the one that would have turned the respected Tenafly High School into a regional middle school. With these recommendations, the company’s work was completed.
Upon release of the ADS study, the tone of the debate began to veer from cautious criticism to bombast. Residents in all towns demanded public forums to express their sentiments. Leo Klagholz, the Commissioner of Education in 1995, appointed a committee to seek recommendations from the general population for solutions that "show commitment to improving education and student achievement for all students in eastern Bergen County; have a significant positive impact on racial imbalance at Dwight Morrow High School; and have endurance and long-range stability."202 A series of five public hearings were announced for September and October, with the Education Department warning that "the status quo is simply not acceptable, there will be change."203 Reactionaries also made their positions explicit; several school board members in Tenafly and Englewood received anonymous harassing phone calls and threatening letters. All sides appealed to New Jersey Governor Christine Todd Whitman to intervene and facilitate, but she remained silent on the issue until late October when tensions ran to a fever pitch.
Citizens’ Alliance for Public Education (CAPE), a non-profit antibusing group, formed almost immediately after the ADS released its study. Other grassroots organizations appeared around the same time: LIONS (Leonia Insists On Neighborhood Schools), and CPT (Citizens for the Preservation of Tenafly). In preparation for a month of intensive lobbying before Tenafly’s October 18 hearing, CAPE drew a crowd of 650 to organize a more aggressive antibusing campaign. Chiding CAPE for its politeness—the group’s initial action was a series of mass mailings—resident William Kelly suggested "more of a junkyard dog approach."204 The group subsequently lobbied Governor Whitman, Commissioner Klagholz and local legislators. Taking a cue from Boston protestors, members distributed buttons featuring a "regional school" bus with a red slash across it. Placards appeared across the town, and at the Tenafly-Englewood border, a large sign read: "Tenafly says NO to Forced Regionalization and YES to Local Control of Schools." The most controversial measure was the distribution of orange ribbons to be tied around trees and telephone poles as an expression of support for THS. The ribbons infuriated Englewood residents. "Orange ribbons around telephone poles are not much different from burning crosses, whether the ribbon-tiers realize it or not," said Englewood parent Michael Passow.205 Tenafly resident Michael Kirsh responded by insisting that race was not the issue:
Meanwhile, David Armor issued his critique of the ADS study that proposed a forcibly regionalized district drawing students from up to twenty towns. The ADS proposal ignored the possibility of white flight from the regionalized program, which Armor estimated could reach as high as 50 percent. The new system, assuming the predicted attrition would occur, presented a far less diverse student body.211 Armor also conducted a poll of residents who would be affected by a regionalization order (see Appendix, Table II). Englewood parents, white and black, gave relatively low ratings to the current quality of their public schools (40 percent rated DMHS as either fair or poor). Armor suggested that the reason why 76 percent of Englewood parents supported a regionalization plan might be because they were "motivated more by low school quality than by a desire for mandatory busing."212 He found that a magnet school concept received the greatest degree of support in all communities, whereas a regionalization plan was strongly opposed by a large segment of the community outside Englewood and "would generate a great deal of controversy."213 Thirty-three percent of respondents from the entire survey region were strongly opposed to a regional school, outnumbering the Englewood regional school proponents in absolute numbers by a 2:1 ratio. Armor presented alternative options to Commissioner Klagholz, focusing primarily on the establishment of a magnet school program at DMHS. He predicted that 300 whites from Bergen County public schools would attend a high quality magnet program at DMHS, in addition to another 100 white students then enrolled in private schools.
Antiregionalizationists could now promote a viable alternative desegregation program. "Choice works" became the new rallying mantra of Tenafly, Cliffs, and Leonia, the three towns most threatened by the ADS study. The academic literature remains unclear as to whether compulsory or voluntary desegregation plans are more effective in providing racial balance. Following Armor’s lead, James Rothschild, Tenafly’s lawyer, favored voluntary solutions. He cited the success of the Bergen County Vocational-Technical school in relatively poor Hackensack, and rhetorically asked, "Is Hackensack the type of town that most whites and Asians in a wealthy county want to go to? Of course not. [The school is] overflowing with kids from the richest towns in the state. Voluntary solutions work better. Choice works."214 In a legal brief, Rothschild argued that the Plainfield district, which was forced into a regional busing plan in the Booker case, had largely returned to segregated schools (the high school had a 1 percent white population). He contrasted Plainfield to Montclair, which initiated a voluntary magnet school program that had resulted in a racially balanced student population without white flight. In contrast, Russell Major, an Englewood school board member and activist, who claimed in 1985 that "for us to worry about whether whites are in the school system is counterproductive," was more skeptical. He said of a voluntary magnet school plan, "These solutions will not work because no one outside of Englewood really gives a damn if Dwight Morrow stays all black."215
As the public hearings approached, the rhetoric on race became decidedly more pronounced. Whites across the country expressed their frustration with the "race card" after the acquittal of O.J. Simpson for murder. The same mood surrounded the Englewood case. The regional daily newspaper, the Bergen Record, began a series of articles on the DMHS meetings collectively titled, "The Great Desegregation Debate," with accompanying graphics featuring the title in half black-on-white type and half white-on-black type, as if the words themselves were in battle (see Appendix, Graphic I).216 Television pundits and residents in eastern Bergen County began to sling the badge of "racist" towards whites and blacks alike.
Whites, given the cultural climate, took special offense to the epithet. Many became emotional at the accusation. Then president of the Tenafly Board of Education, Sherri Lippman, later reflected, "It hurt all of us to be called racists. We were fighting for our community, the one we all picked when looking for the ideal place to live and raise a family."217 Others became introspective: "This is the first time I’ve had to think about whether there’s a connection between opposing something and being a racist. I truly don’t believe that we are racist," remarked Leonia resident Jean Arbiter. 218 For others, the "racist" label acted as a personal attack, and served to pour salt on an open wound. Not only was Englewood causing painful discord in attempting to correct its problems by taking over a successful neighboring district, but it also had the temerity to accuse its opponents of bigotry. "Like a replay of the O.J. Simpson trial, this is a diversionary tactic designed to avoid scrutiny of [DMHS’s] poor academic record, despite resources at least as good as those of its neighbors," exclaimed one Tenafly resident.219 Ultimately, there was resignation; it did not matter what Englewood accused. "Call me racist, I don’t care," charged Leonia’s Edie Shulman. "I just don’t want the government to wreck a good thing we have."220
If the point of the town hearings was to solicit alternative desegregation plans from residents, the state was successful. However, the quality and feasibility of the proposals varied. Typical of the many plans offered to the commission, the Englewood Central Parent Teacher Organization offered an exclamation-point laden treatise opening, "We think that racial isolation is wrong wherever it exists!!! The only effective way we know to end racial imbalance at Dwight Morrow High School is to end this throughout the districts!" The organization claimed its plan was voluntary, but "if the districts to be involved can not volunteer, then the state should live up to its responsibility and order that they be regionalized." The plan included full Pre-Kindergarten through 12th grade regionalization among five districts and nearly 6,700 students, three magnet high school programs, and the utilization of racial quotas among students and faculty, all the while noting that the "proposal is not about moving students only for racial balance." Marion McKenzie, chairwoman of the Englewood Central PTO, commented, "We just felt in view of all the negative things that have been said about our district, that we wanted to develop our own plan from the parents so that our concerns and goals could be factored into the official position."221
One teacher at DMHS submitted a regionalization proposal to the state suggesting "expanded education" rather than a forced merger. The program would allow cross-district interracial contact through extracurricular activities and interdistrict school summits, designed to subdue the ill will between the communities. The lawsuit and the surrounding municipalities’ reaction to it had "damaged feelings of self-worth and pride" of Englewood students, who began to ask, "What’s wrong with our school? What’s wrong with being Black and Hispanic?" The anonymous teacher continued to say that he/she was "proud and happy" to teach at DMHS.222
Town leaders on all sides urged their residents to attend the meetings. The Englewood Cliffs Homeowners Organization II (ECHO-II) mass-mailed residents asserting, "Forced regionalization will destroy the value of your home" and "add thousands of dollars to your annual tax bill."223 In bold capital letters, ECHO-II proclaimed: "If we make a poor showing at [the October 10] hearing [in Englewood Cliffs] our schools will be forcibly regionalized. It is absolutely essential that every Englewood Cliffs resident comes!" The letter continued to encourage residents to support Senator Cardinale’s constitutional amendment limiting the power of the courts "to manipulate our children in the name of misguided justice."224 The Tenafly Board of Education also issued a mass mailing to encourage residents to attend, although in more benign language than Cliffs’. Nevertheless, signs posted in THS by its Student Organization featured provocative phrases like "Would you like to see this school die?" and "The next name of this building: Englewood-Tenafly Regional Middle School." The Student Organization voted unanimously to support its Board of Education’s efforts against any kind of forced regionalization plan.
The meetings were as boisterous as could be expected. Impassioned discourse by Leonia’s school board president marked that town’s September 27 meeting. Terry McGrath spoke to a 1,400 person crowd in the gymnasium of Leonia High School:
On October 18, after the hearing in Leonia, and more reserved meetings in Paramus and Cliffs, the committee turned to Tenafly. It would be the most frenzied of the public hearings, and did much to determine the outcome of the dispute. Originally scheduled for the Tenafly Middle School auditorium, the meeting was convened in the high school gym, which sat over 1,500 people in bleachers and folding chairs.226 The television wheeled into the library for the O.J. Simpson verdict two weeks earlier was brought into the gym annex to provide residents with a closed-circuit television feed of the large gymnasium. The school erected a large public address system to broadcast the testimony into the building’s foyers. By 6:30 PM, the fifty-nine people prepared to speak before the commission had arrived. Over 2,900 other concerned citizens were there, spilling out of the gymnasiums and the foyers, including approximately half of the school’s 800 students. Congregating outside, many braved a brisk fall evening to convene on a blacktop outfitted with a public address system. People parked their cars over a quarter mile away from the school to attend. Tenafly had perhaps its first traffic jam, discouraging many others who simply turned around after finding no place to park. As one columnist would later write, "Genteel Tenafly came out in force."227
Only half of the scheduled speakers had time to testify, but the mood of the raucous crowd was reminiscent of the pep-rallies frequently held in the gymnasium: wild cheering for those supporting Tenafly, harsh booing for those few from other towns advocating the need for a regional district. Pro-Tenafly, anti-busing signs waved from the hands of students wearing orange and black, the school colors. One almost expected the Tenafly Tiger to run through the aisles. Local politicians spoke, students spoke, David Armor spoke, alumni spoke, Tenafly’s nonagenarian borough historian spoke, and homeowners spoke, in near unanimity against regionalization. Tenafly residents urged the somber state committee to look at and listen to the crowd. Flanked stage left of the panel was a slew of blinding lights and flashes, accompanied by the scurrying pens of reporters, all recording the words and atmosphere for public consumption. The meeting was covered in a four-minute "In Depth" piece on the nationally broadcasted NBC Nightly News and in another lengthy piece on the CBS Evening News later in the week.
No new arguments were offered at the Tenafly meeting. Elena Van Poznak, a teacher in Tenafly, summed up the thrust of all of the speakers when she said, "Englewood’s diverse community has rejected its own school system. That wrong has to be righted, but don’t steal from our children."228 However, the committee members were clearly disturbed by the fury of the testimony and the sheer size of the audience. Almost a quarter of Tenafly’s population showed its collective frustration by appearing at the October 18 meeting. If there were any doubts as to the magnitude of opposition that could be summoned to fight a forcibly regionalized school district, the Tenafly hearing quelled them. This cause celebre could incite unmitigated fury against the state. Was the government prepared to institute a policy guaranteed to release it?
Governor Whitman was commemorating a health center in Englewood on the night of the Tenafly hearing. That night, she spoke on the topic for the first time. She implored the feuding parties to "sit down and talk." "If the shouting could stop," she said, "they could come to a solution that is mutually agreeable." Then, she laid her cards on the table: "As far as I’m concerned, forced regionalization is not a good thing to do. It seldom works."229
Four years later, the Governor said that she would not have done anything
differently in her handling of the whole situation. "It would have served
only to polarize the issue if I had spoken earlier," she revealed. The
Governor reiterated that forced busing "poisons the learning atmosphere,"
and "the best thing for the state to do was to stay out of it."230
Chapter 5: A Whimper
It was the beginning of the end for Englewood’s regionalization petition. The plan’s proponents faced an even steeper uphill battle given the outpouring of charged emotions surrounding them. More troubling for the supporters, the regionalizationists were never well organized, nor was it clear whether a majority of Englewood residents would actively demand a regional school.
The first fractures within Englewood became evident in October 1995, when public hearings in Bergen County attracted national media attention. Residents began to question whether the amount of money and effort poured into the regionalization lawsuit could have been better spent on education. During the course of the decade-long litigation, Englewood spent a total of over $2 million on legal fees, perhaps as high as $4 million. In 1995 alone, DMHS lost its wrestling team, bowling team, drama club, and ten teachers due to budget constraints.231 Englewood residents also appeared to be less engaged in the lawsuit compared to the neighbors they were suing. Donald Aronson, then Mayor of Englewood, reported that he did not receive any calls from concerned parents that fall about the regionalization controversy. "It’s not the burning issue here," he said.232 Aronson, who is white, sent his children to private schools.
About 1,000 people walked under a large banner reading, "Welcome Neighbors," to sit in the DMHS auditorium on October 24 for the last of the five public hearings. The mood of the hearing was markedly different from the others. Tenafly, Leonia, and Cliffs, by attacking the quality of education in Englewood and importance of their districts’ educational autonomy, had thrown Englewood on the defensive. Whereas signs in Tenafly read, "We Are Diverse," and "Home Rule Equals Quality Education," Englewood’s placards declared, "Black and Hispanic Does Not Equal Stupid," and, tellingly, "Quality Education First."
Englewood parent Charddie Kimbrough wanted to "rebuild our schools from within." She received a standing ovation when she announced that "the answer is not in Tenafly, the answer is not in Englewood Cliffs. The answer is right here in our own community." Others took offense to reactions in Tenafly, Leonia, and Cliffs. Aronson remarked, "I resent the bashing of our kids by neighbors who are afraid of change."233
These views reflected those of the students. The THS student newspaper published a special issue on the regionalization debate for the Tenafly hearing, including a transcript of a conversation between editors of Tenafly’s ECHO and DMHS’s Oracle. Kate Passow, a senior at DMHS wrote, "Contrary to what the public may believe, the students in our school are actually against regionalization.234 The Board of Education and the state may be fighting for it, but we are certainly not. We are getting a good education at DMHS."235 She predicted that there would be "a lot of separation and very little integration" in a regionalized school. Tenafly’s Lindsay Faber agreed, and noted that the THS cafeteria "is already segregated into small groups."236 The editors from each school predicted the result of resegregation within integrated schools, if not through "tracking" in the classroom, then more subtly, reflected in social decision-making patterns.
The public hubbub waned in the coming months. Many recalled the meetings with displeasure. Tenafly’s James Rothschild said, "they were a terrible idea."237 "It was so stupid of the Department of Education to have those meetings. They weren’t legally required, nothing came of it, and all it did was to add fuel to the fire. It was just a very dumb thing to do," added Englewood’s Arnold Mytelka.238 Cliffs school board President Ilan Plawker described them as "awful." Englewood resident A. Harry Passow asked, incredulously, "What did the state expect from these hearings, a rational solution?"239 A Bergen Record editorial described the mood well: "People will remember this time as one when Bergen County residents were not at their best. When hooting and jeering and catcalls took the place of reasonable discussion and community."240
No matter whether the meetings were worthwhile or not, the media tide surely swung against Englewood’s petition. African-Americans themselves were divided. Soon after, the branch president of the Bergen County NAACP, Robert Robinson, withdrew his support for Englewood’s lawsuit, stating that the quality of education at DMHS was more important than merely achieving an integrated one. The state chapter of the organization reprimanded Robinson. Englewood’s leaders and lawyers called Robinson a "Judas to the NAACP," and his positions a "recipe for apartheid."241 In contrast, a publication catering to the black community of northern New Jersey, The Connection Newspaper, endorsed Robinson’s petition: "Until we rid ourselves of the mentality that we need Whites in school… with us to feel accepted and good enough, we will continue to dig our own graves."242 Articles appeared in the Bergen Record about the flight of middle class blacks and Hispanics from DMHS, some of them, ironically, seeking integrated classrooms in private schools.
On January 25, 1996, a task force of eighteen school officials from districts in Bergen County met with Harry Galinsky, author of the voluntary desegregation study, at Ramapo College. The officials, with Galinsky, framed a plan to turn DMHS into a university-affiliated magnet school with a rigorous academic curriculum. Although the plan received unanimous backing, Englewood representatives remained suspicious. Its lawyers would later describe the plan as "swaddled in the emperor's new clothes."243 Bernard Freamon, a lawyer representing the NAACP in support of Englewood in this case, explained the concern: "The magnet school has the smell of a political stopgap, make-‘em-go-away solution."244 Englewood’s lawyers demanded a quota system if Commissioner Klagholz decided to pursue a voluntary solution. If the proportion of whites and Asians at the new school did not exceed 30 percent within four years of its implementation, the attorneys demanded an automatic regionalization trigger that would link DMHS and THS. This was not acceptable to Tenafly. Soon after, the Englewood Board passed a resolution in opposition to the Task Force plan. The state then made several futile overtures to Englewood in hope of brokering a negotiation to finally take the matter outside the realm of the courts.
After much delay, on February 6, 1997, Klagholz refused to force regionalization in eastern Bergen County. The New York Times speculated that the Whitman Administration was not prepared to release the wrath of regionalization opponents in an election year, especially when the decision could have acted as a precedent for numerous similar lawsuits around the state.245 Klagholz believed that "the cooperative development of a local solution could be achieved," and supported the Task Force’s magnet school plan in his ten-page report. He suggested using extra state aid to develop such a program. Klagholz determined that
As the lawyers deliberated, the Englewood community seemed ready to throw in the towel. Englewood school board member David Matthews commented in March 1997, "I don’t see the logic in continuing to fight. Why go somewhere you’re not wanted?"250 In early 1999, Englewood decided to begin the process of creating three magnet schools linked to local colleges and community businesses specializing in communications, international studies, and business. The Bergen Record called the move "a step in the right direction," that would improve both its racial balance and curriculum.251 The city requested nearly $2.4 million from the state and Bergen County, and received a commitment of $1 million from the county, matched by $275,000 from the state. With that amount of money, the plans for implementation of the magnet program moved forward.
Englewood is still fighting for a court-ordered regional district. Its
petition remains pending at the Appellate level as of March 2000. Bernard
Freamon, who wrote a brief supporting Englewood as representative of the
NAACP, has admitted that he is "unsure that litigation is the right strategy
in this case." The "goal of integration remains the same, but the strategy
and tactics used to achieve that goal can always change."252
Chapter 6: Laws, Biases, Taxpayers, and Children
Given the complexities of the issues of race and class, the final outcome over desegregation and regionalization in this case was probably the most workable. Both Justice Long and Governor Whitman told this author, expressing strikingly similar sentiments, that "what’s most important is what happened in the end, with widespread support for a magnet concept,"253 and that "everyone should be relatively happy now."254 It is easy to agree with them. A high-quality magnet program will draw whites from around the area, without the likely chaos and massive white flight that would result from a court-ordered plan. But the intransigent, polarized emotions roused by the suit are too easy to dismiss without analysis, as the Justice and Governor would like to do.
It is difficult and ultimately unfair to paint Englewood as a virtuous champion of integration and Tenafly, Cliffs, and Leonia as towns brimming with greedy racists. The opposite generalization is equally problematic: Englewood was not just seeking a corporate takeover of its neighbors’ successful schools, and Tenafly was not a mere innocent bystander to the educational problems at DMHS.
No matter how legally legitimate Englewood’s claims for redress may have been, the impetus for the suit was rooted in bitterness.255 The sting of Cliffs’ absolute rejection of DMHS accompanied by Tenafly’s seeming disregard for the wellbeing of its neighbor ran deep enough to push Englewood’s hand in filing the bold regionalization lawsuit. Englewood Councilman Rev. Stanley Dennison conceded in 1997 that "it was a worthwhile fight for the district when the integrity of the diploma was challenged."256 Others were plainer in their resentment. Former Englewood Board of Education member Russell Major, who is black, verbally sparred with Ilan Plawker, Cliffs’ white Board of Education president, on public television in 1995. Plawker alleged that the philosophy requiring blacks to attend school with whites in order to achieve a constitutionally adequate education was fundamentally racist. An incensed Major retorted, "We are as good you. We don’t need you, we don’t need you! You tried to humiliate us! You know we’re not going to have that."257 This was a suit responding to a perceived humiliation that eventually raised significant constitutional questions about race, education, and the government’s responsibility to interfere with private but potentially discriminatory choices of individuals.
While the federal court system dismantled its body of desegregation law, adjudicating agencies in the Englewood case consistently underscored the New Jersey Constitution’s guarantee against de facto segregation in public schooling. The legal decisions in this case reaffirmed that the state government would not guarantee "home rule" if it upsets racial balance. The state’s courts granted wide power to the Commissioner of Education to fashion remedies fulfilling those constitutional requirements, including the power to bridge borders between districts that did not represent a "single community." And undeniably, more white and Asian children (ethnic groups which the courts lump together) would take classes under the same roof as black and Hispanic children (the other ethnic groups which the courts lump together) in a forced regional program than under a magnet solution. Yet Englewood’s regionalization petition was denied nine times in twelve years, and is likely to fail again at the Appellate and Supreme Court level.
The reason is clear: the state genuinely feared that the program would cause, as one Tenafly legal brief argued, "wholesale upheavals." Sherri Lippman, former president of the Tenafly Board of Education, disagreed. "We really did win because we turned the dialogue from race to education," she wrote. "If this was about a town with the lowest test scores in the county… then the focus had to be education."258 While Lippman’s arguments focused on low test scores at DMHS and avoided almost all dialogue on race and legal precedents, it is hard to believe that the state’s repeated decision against regionalization was merely a gesture of sympathy toward the town with the more successful schools. White flight would likely have dealt too substantial a blow to any regional program before it could begin. Tenafly was successful not because of superior legal arguments, but rather its residents’ constitutionally suspect "heckler’s veto."
Englewood argued that "parents want the best education for their children, but in white parents that is often influenced by the perception that a school with blacks is not a quality school."259 This became a self-fulfilling prophesy that resulted in long-term white flight from DMHS, and created a student body with severe racial imbalance. Yet there was more than racism operating here. Antiregionalizationists had sincere economic and educational concerns as well. In reality, African-Americans are poorer on a per capita basis than whites, and if poorer people score lower on tests and have fewer educational opportunities at home, perhaps affluent parents were looking to place their children in learning environments with students from a similar economic and social background. Melina Patterson describes Tenafly’s position as "well founded, if ungenerous."260 Even Englewood’s lawyer Arnold Mytelka agreed: "I don’t think that kind of pejorative characterization [bigotry] explains this rather systemic problem."261
A regional school, with all its likely logistical problems, could work, but only with active community involvement and strong commitment to the program’s success from all parties involved. However, a regional school would not work, as long as parents refused to tolerate any tinkering with their children’s education, especially when their known quantity of excellence would be supplanted by the mysterious product of a merger with a new population popularly known for its low test scores and problems with attendance, dropouts and violence. As David Armor wrote, "given the personal hardships often endured to participate in a desegregation plan (long bus rides, distance from school, an unfamiliar and possibly hostile environment), community support for a plan must depend on a belief that children will benefit educationally or socially, at least in comparison with other educational programs."262 Armor’s threshold for community support was not met in the Englewood case.
Upon regionalization, private schools would have reaped the benefits of a mass exodus from public education by most anyone with the means to leave. The boom of the 1990s brought substantially more disposable income to affluent Americans. If those wealthy people thought their children would have benefited more from a private school education then a forcibly regionalized public education, they would have abandoned the system. Regionalization required too great a burden for whites, blacks, Asians and the public education systems in all of the communities. Of the remaining remedies, the magnet school option seems most promising in reducing racial imbalance and improving quality education at DMHS.
The zeal to desegregate is nearly extinguished. Active desegregation would require a significant readjustment in the law and in people’s attitudes, and most observers have come to suggest radical changes in the way equal educational opportunity school equity can be attained. The best way to prevent white flight in cases like Englewood’s is "by questioning the presumed right of private schools to exist independently of desegregation laws," argues Ronald Formisano. Formisano recognizes the political difficulties of his proposal: "Bridging the ‘Berlin Walls’ of the suburbs will not be easy. The protection accorded to the affluent is simply assumed in American society, as if it is part of the natural order."263 Jennifer Hochschild carries the argument to its logical conclusion, saying that desegregation has yet to fully begin:
In the meantime, busing is disappearing. In 1999, under pressure of a federal lawsuit, the Boston School Committee terminated its busing plan that brought violence to the city’s schools and streets.265 Harvard professor Orlando Patterson noted that "there is nothing for busing to do, there being hardly any white students left in the system."266 That same month, a federal appeals court ruled that the Yonkers, New York school board did not sufficiently prove that the achievement gap between white and black students in the system was caused by segregation, thus reversing a decision that ordered the state to pay $575 million to the district over nine years. In September 1999, a Federal court ordered busing to end where it had begun, in the Charlotte-Mecklenburg School District, because all vestiges of intentional discrimination had been eliminated. The Court wrote that the initial decision could not be used "as a pretext to pursue race-conscious, diversity-enhancing policies in perpetuity."267
Anthony Lukas, who wrote on Boston desegregation, conceded in 1996 that the "only realistic alternative [is] to make the urban public schools work for whatever clientele remains."268 A survey of young adults released in mid-1999 indicated that about half found separation of the races acceptable so long as equal opportunities remained available to all. Over one-third believed that it was "not the government’s business" to ensure that whites and blacks attended school together.269 In perverse irony, race-conscious admissions programs at state colleges and universities are being replaced with new plans that guarantee enrollment to a fixed percentage of the top students in each high school. The plan is effective in increasing minority enrollments only because of the existence of severe de facto segregation in schools across the country.
There is a gap between people’s beliefs about racial justice and their willingness to make significant sacrifices to achieve it. A 1999 study revealed that about 90 percent of white Americans supported integration.270 Yet when the race issue turned the country into a tinder box, and the appellation "racist" became even more charged given the cultural climate, antiregionalizationists resorted to the attitude of "call me racist, I don’t care." The resisters insisted that under no circumstances should the government tamper with its schools, especially for the sake of racial balance. The schools are the individual towns residents’ vested property. "The American value of equal opportunity stops short of guaranteeing equality of results," concludes Armor.271
In September 1998, Cliffs petitioned the Commissioner of Education anew,
demanding that the injunction imposed against it in 1985 by Judge Springer
be vacated, and that the town’s sending-receiving relationship with Englewood
be terminated. The petition remains pending. The litigation continues into
the new century.
As I had hoped, Barbara brought my head right back to the good ol’ days of October 1995, but not before unleashing a major surprise on me:
"I’ve been thinking a lot about it since I got to college," she told me.
"So have I. Well, what do you think now?"
"Don’t you think we were so wrong?"
I did not quite know how to respond. Barbara and I coordinated the plan that resulted in half of our schoolmates attending the October 18 meeting. It was the hallmark of our administration. (Among our other achievements: the opening of a door upstairs in the library to allow for easier passes through the hall, and a redrafting of the Student Organization Constitution.) I answered her as best I could: "In a way, yes. We shortchanged the legal claims of Englewood by ignoring them. But also no. No matter how strained the logic, I don’t think we were wrong to oppose a regional school doomed to failure. Our parents would have taken us all out of the school before it opened. I think that the magnet school will do well to achieve the same goals." I probed further: "Why do you think almost all of the students maintained such a hard-line antiregionalizationist attitude?"
"I think that our attitudes were the attitudes of our parents." She was right, and continued by reciting the standard set of arguments that I had regularly spouted out in high school. "Property values would have gone down, and our parents worked hard to send us to school in Tenafly. Because of tenure issues, we also would have lost our young and promising teachers. We wouldn’t have gotten into good colleges. We were concerned about our younger siblings; we wanted them to get a good education and also to get into top universities." Both Barbara and I had younger sisters at THS in 1995.
"What do you think now about the big meeting?" I asked.
"I just remember the hostility of it. It sometimes felt like we were in the middle of a movie." The whole uproar did have a cinematic quality to it.
"Well, you know a bit why my attitudes have changed. Why do you think your position is not the same as it was in high school?"
"I think it was coming to a place like [the University of] Michigan. It’s a different environment. I’ve been exposed to different kinds of people, and there are protests here all the time. I think we just didn’t have a good perspective when we were in high school."
"And we were really young," I added. I reminded Barbara that I was only sixteen when I spoke at that hearing. We went on to lament the fact that we were on the brink of our college graduations, and how some of our friends were doing decidedly more adult things (getting "real" jobs, finding husbands and wives). Before becoming too wistful, I asked one last question: "What do you think should have happened?"
After a long pause she answered me. "I don’t know, Evan. I’m just not
Source: Hulsizer, James, ed. Planner’s Data Book for Bergen County. Hackensack, N.J.: Bergen County of Planning and Economic Development, 1995.
Note:The Tenafly tuition policy commenced in 1982, and was terminated by Judge Springer in 1988.
Sources: Stearns, Harry L., Englewood, Its People and Its Schools: a report to the Board of Education, 1962; Hulsizer, James, ed. Planner’s Data Book for Bergen County. Hackensack, N.J.: Bergen County of Planning and Economic Development, 1995. Design courtesy Melina Patterson; reprinted by permission.
Source: Hulsizer, James, ed. Planner’s Data Book for Bergen County. Hackensack, N.J.: Bergen County of Planning and Economic Development, 1995.
Effects of the Tenafly tuition policy
|School Terms||Cliffs Students Attending DMHS||Cliffs Students Attending THS|
|1988-1989||13||0 (Policy enjoined)|
|1989-1990||16||0 (Policy enjoined)|
|1990-1991||13||0 (Policy enjoined)|
|1991-1992||8||0 (Policy enjoined)|
Sources: Board of Education of Englewood Cliffs v. Board of Education of Englewood , 257 N.J. Super. 413 (App. Div. 1992), 434, 451; "Dwight Morrow’s Dilemma," Bergen Record, 10 January 1986, sec A., p. 26; Board of Education of Englewood Cliffs v. Board of Education of Englewood, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 31; Robert D. Fleischer, Expert Testimony Report for Englewood, Board of Education of the Borough of Englewood Cliffs v. Board of Education of the City of Englewood v. Board of Education of the Borough Tenafly, 22; Hulsizer, James, ed. Planner’s Data Book for Bergen County. Hackensack, N.J.: Bergen County of Planning and Economic Development, 1995.
High School Enrollment in Districts Polled by Dr. Armor, Fall
|Englewood (and Cliffs)||
|Leonia (and Edgewater)||
|Tenafly (and Alpine)||
Note: Englewood, Leonia, and Tenafly are listed in combination with other districts because their high schools are in sending-receiving districts with each respective town listed. These towns are presented as representations of the twenty districts proposed as participants in a regional desegregation solution by ADS.
Source: David Armor, "Results of the Bergen County Desegregation Survey," Report to the Tenafly Board of Education, 4 April 1995, 5.
The regional daily newspaper, the Bergen Record, began a series of articles on the DMHS meetings collectively titled, "The Great Desegregation Debate," with accompanying graphics featuring the title in half black-on-white type and half white-on-black type, as if the words themselves were in battle. Note the O.J. Simpson trial coverage below.
Freamon, Bernard, interview by author, tape recording, Newark, N.J., 17 December 1999.
Long, Justice Virginia A., interview by author, tape recording, New Brunswick, N.J., 1 December 1999.
Mann, Barbara, telephone interview by author, 6 December 1999.
Mytelka, Arnold, interview by author, tape recording, Springfield, N.J., 24 September 1999.
Orfield, Gary, interview by author, New Brunswick, N.J., 6 March 2000.
Patterson, Melina, interview by author, New Brunswick, N.J., 27 September 1999.
Rymer, Agnes, interview by author, tape recording, Springfield, N.J., 24 September 1999.
Rothschild, Jr., James, interview by author, tape recording, Morristown, N.J., 7 September 1999.
Tenafly real estate agent, interview by author, Tenafly, N.J., November 1998.
Whitman, Governor Christine Todd, interview by author, Piscataway, N.J., 12 January 2000.
Avery, Joan, letter to the editor, Bergen Record, 8 October 1995, sec. O, p. 3.
Kaye, Eveyln, letter to the editor, Bergen Record, 9 February 1986, sec. O, p. 2.
Kirsh, Michael A., letter to the editor, Bergen Record, 9 November 1995, sec. N, p. 10.
Lippman, Sherri, letter to author, 11 August 1999.
Passow, A. Harry, letter to the editor, Bergen Record, 10 November 1995, sec. N, p. 1.
"Inside Trenton", WNET-TV, November 1995.
"A Proposal of Expanded Education For The Region," "Teacher, Dwight Morrow High School," 13 November 1995.
Armor, David. "Results of the Bergen County Desegregation Survey," Report to the Tenafly Board of Education, 4 April 1995.
Doolan, Jay, Education Department Official, press release, September 1995.
ECHO-II Newsletter, October 1995.
Fleischer, Robert D., Expert Testimony Report for Englewood, Board of Education of the Borough of Englewood Cliffs v. Board of Education of the City of Englewood v. Board of Education of the Borough Tenafly.
Hulsizer, James, ed. Planner’s Data Book for Bergen County. Hackensack, N.J.: Bergen County of Planning and Economic Development.
New Jersey State Board of Education, Statement of Educational Policy, 5 November 1969.
New Jersey Constitution of 1947.
Stearns, Harry L., Englewood, Its People and Its Schools: a report to the Board of Education, 1962.
(Note: All briefs below were filed during different phases of the Board of Education of the Borough of Englewood Cliffs v. Board of Education of the City of Englewood v. Board of Education of the Borough of Tenafly lawsuit and are cited in chronological order.)
Brief for Petitioner Board of Education of Englewood Cliffs, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 11 December 1987.
Brief for Respondent/Cross-petitioner Board of Education of Englewood, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 11 December 1987.
Brief of Cross-Respondent Tenafly Board of Education in Opposition to the Cross-Petition of the Englewood Board of Education, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 11 December 1987.
Reply brief of the Tenafly Board of Education, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 31 December 1987.
Cross-Respondent Tenafly Board of Education’s Reply to the Exceptions of the Englewood Board of Education, Office of Administrative Law, 19 May 1988.
Brief of the Tenafly Board of Education on Appeal to the New Jersey State Board of Education, 22 September 1988.
Brief of the Tenafly Board of Education in Opposition to the Cross-Appeal of the Englewood Board of Education and in Reply to the Englewood Board’s Answering Brief, State Board of Education, 12 December 1988.
Brief of Cross-Appellant Englewood Board of Education in Support of its Cross-Appeal and in Opposition to the Appeal of Appellant Englewood Cliffs Board of Education, Superior Court of New Jersey, Appellate Division, 3 December 1990.
Brief of the Board of Education of the Borough of Tenafly in Opposition to the Appeal of the Board of Education of the City of Englewood, Superior Court of New Jersey, Appellate Division, 11 February 1991.
Reply Brief of Cross-Appellant Board of Education of the City of Englewood at 18, Superior Court of New Jersey, Appellate Division, 11 February 1991.
Brief and Appendix of the Board of Education of the Borough of Tenafly in Support of Interlocutory Appeal, Superior Court of New Jersey, Appellate Division, 27 September 1991.
Brief of the Tenafly Board of Education in Support of Motion for Leave to Appeal and for a stay of the Appellate Division Ruling as to the Regionalization Study, Supreme Court of New Jersey, 29 January 1993.
Supplemental Brief of the Tenafly Board of Education, Supreme Court of New Jersey, 29 January 1993.
Brief of the Board of Education of the Borough of Tenafly in Opposition to the Motion of the Board of Education of the City of Englewood to Order Immediate Regionalization, or in the Alternative, Set a Date Certain for Termination of Study, Superior Court of New Jersey, Appellate Division, 17 December 1993.
Brief of the Board of Education of the Borough of Tenafly in Opposition to the Motion of the Board of Education of the City of Englewood for an Order Regionalizing the Three Districts of For Alternative Relief, and For an Order Directing that Movant’s Costs, Including Counsel Fees, Be Paid by the State of New Jersey, Superior Court of New Jersey, Appellate Division, 7 July 1994.
Letter-brief of the Tenafly Board of Education to Commissioner Leo Klagholz, 11 June 1996.
Brief of the Tenafly Board of Education Concerning the Recommendation of the Commissioner of Education, State Board of Education, 31 March 1987.
Letter-brief of the Tenafly Board of Education to the State Board of Education, 30 September 1997.
Letter-brief of the Tenafly Board of Education to the State Board of Education, 9 December 1997.
Memorandum of Law in Support of Motion to Dismiss, Tenafly Board of Education, Superior Court of New Jersey, Appellate Division, 4 March 1998.
Letter-brief of Tenafly Board of Education, Superior Court of New Jersey, Appellate Division, 24 September 1998.
Brief of Appellant Board of Education of the City of Englewood, Superior Court of New Jersey, Appellate Division, 13 January 1999.
Brief on Behalf of Amici Curiae, National Association for the Advancement of Colored People (NAACP), New Jersey State Conference of the NAACP, and Bergen County Chapter of the NAACP, 5 March 1999.
Reply Brief and Supplemental Appendix of Cross-Appellant Englewood Board of Education in Support of its Cross-Appeal, Superior Court of New Jersey, Appellate Division, 5 April 1999.
Reply Brief of Appellant Board of Education of the City of Englewood, Superior Court of New Jersey, Appellate Division, 20 May 1999.
Brief of the Tenafly Board of Education, Superior Court of New Jersey, Appellate Division, 12 April 1999.
Board of Education of Englewood Cliffs v. Board of Education of Englewood v. Board of Education of Tenafly, Office of Administrative Law, OAL Dkt. No. EDU 1086-86.
Board of Education of Englewood Cliffs v. Board of Education of Englewood , 257 N.J. Super. 413 (App. Div. 1992), aff’d per curiam, 132 N.J. 327, cert. denied, 510 U.S. 991 (1993).
Board Of Education Of Oklahoma City v. Dowell, 498 U.S. 237 (1991).
Booker v. Board of Education of Plainfield, 45 N.J. 161 (1965).
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).
Freeman v. Pitts, 503 U.S. 467 (1992).
Green v. County School Board, 391 U.S. 430 (1968).
Milliken v. Bradley, 418 U.S. 717 (1974).
Milliken v. Bradley, 433 U.S. 267 (1977).
Missouri v. Jenkins, 515 U.S. 70 (1995).
Jenkins v. Township Of Morris School District and Board of Education, 58 N.J. 483 (1971).
Pierce v. Union District School Trustees, 46 N.J.L. 76 (1884)
Plessy v. Ferguson, 163 U.S. 537 (1896).
United States v. Scotland Neck Bd. of Educ., 407 U.S. 484 (1972).
Armor, David. Forced Justice. New York: Oxford University Press, 1995.
Carter, Dan T. From George Wallace to Newt Gingrich. Baton Rouge: Louisiana State University Press, 1996.
Ehrlichman, John. Witness to Power: The Nixon Years. New York: Simon & Schuster, 1982.
Formisano, Ronald P. Boston Against Busing. Chapel Hill: University of North Carolina Press, 1991.
Hochschild, Jennifer L. The New American Dilemma: Liberal Democracy and School Desegregation. New Haven: Yale University Press, 1984.
Kluger, Richard. Simple Justice. New York: Vintage Books, 1975.
Kozol, Jonathan. Savage Inequalities. New York: Crown Publishers, Inc., 1991.
Kutler, Stanley I., ed. The Supreme Court and the Constitution, 3d ed. New York, W.W. Norton & Company, 1984.
League of Women Voters. Know Your Town: Englewood Cliffs. Englewood Cliffs: Englewood Cliffs Chamber of Commerce, 1974.
Lubiano, Wahneema, ed. The House That Race Built. New York: Vintage Books, 1998.
Lukas, J. Anthony. Common Ground. New York: Alfred A. Knopf, 1986.
Orfield, Gary and Susan E. Eaton. Dismantling Desegregation. New York: The New Press, 1996.
Rossell, Christine. The Carrot or the Stick for School Desegregation Policy. Philadelphia:
Temple University Press, 1990.
Sarat, Austin. Race, Law, and Culture. New York: Oxford University Press, 1997.
Vaughn, Samuel S. The Little Church; One Hundred Years at the Church of the Atonement, 1868-1968, Tenafly, New Jersey. 1969.
West, Cornel. Race Matters. New York: Vintage Books, 1994.
Whitman, Mark. The Irony of Desegregation Law 1955-1995. Princeton:
Markus Wiener Publishers, 1998.
Ahearn, James. "Integrating Dwight Morrow: State was bluffing."Bergen Record. 12 February 1997, sec. N, p. 7.
Applebome, Peter. "A Wave of Suits Seeks a Reversal of School Busing." New York Times, 26 September 1995, sec. B, p. 8.
Balz, John. "Separation of Races Found OK by Many Young People." Los Angeles Times, 17 August 1999, sec. A, p. 10.
Berger, Joseph. "A Child of Segregation Says It Was Not All Bad." New York Times, 19 November 1995, sec. 1, p. 46.
Bickel, Alexander M. "Where Do We Go From Here?" New Republic, 7 February 1970, p. 20.
Brody, Leslie. "Students forgotten amid sound and fury." Bergen Record, 22 October 1995, sec. A, p. 1.
Brody, Leslie. "Overlooked in the debate: Minorities that opt for private school." Bergen Record, 12 November 1995, sec. A, p. 1.
________. "Belying fears, prejudice." Bergen Record. 22 February 1996, sec. A, p. 1.
"Cliffs withdraws bid to transfer HS students." Press Journal, 5 February 1981, p. 1.
Cowen, Richard, "Whitman: Stop shouting and talk." Bergen Record, 19 October 1995, sec. A, p. 1.
"Dwight Morrow’s Dilemma." Bergen Record, 10 January 1986, sec. A, p. 26.
"Englewood’s magnet schools." Bergen Record, 8 January 1999, sec. L, p. 8.
Faber, Lindsay. "One to One." ECHO Lite (Tenafly High School, Tenafly, N.J.), October 1995.
Farney, Dennis. "Fading Dream." Wall Street Journal, 26 September 1995, sec. A, p. 8.
Friendly, Jonathan. "2 Jersey Towns, One Wealthy, One Less So, Compete For Students From a 3d." New York Times, 18 December 1985, sec. B, p. 3.
Goodman, David. "America’s Newest Class War." Mother Jones, September/October 1999, 69.
Gottlieb, Henry. "School Case Heats Up On Appeal." New Jersey Law Journal, 23 December 1991, p. 1.
Hanley, Robert. "Island in a Sea of White Resistance." New York Times, 21 December 1995, sec. B, p. 1.
________. "New Jersey Will Not Force High School’s Desegregation." New York Times, 7 February 1997, sec. B, p. 4.
Hollander, Ron. "Warring school districts get $3.7M; Legal struggle sets a record lesson." Bergen Record, 3 April 1989, sec. A, p. 1.
"In Tenafly," Englewood Press Journal, 1 November 1962, p. 4.
Kuhn, John. "Tenafly will accept students from Cliffs." Bergen Record, 12 November 1985, sec. C, p. 3.
________. "Ex-Attorneys-General pair up on legal team." Bergen Record, 15 July 1986, sec. C, p. 3.
Kunen, James S. "The End of Integration." Time, 29 April 1996, p. 34.
Lacayo, Richard. "Trial for Our Times." Time, 9 October 1995, 30.
Lamm, Jeffrey. "Transfer agreement in jeopardy." Bergen Record, 29 May 1985, sec. C, p. 3.
________. "Cliffs Trustees move on pullout from Englewood." Bergen Record, 24 September 1985, sec. C, p. 3.
________. "Cliffs selects Tenafly school; Would end Englewood relationship." Bergen Record, 7 November 1985, sec. D, p. 3.
Lukas, J. Anthony. "The Need For A Tougher Kind of Heroism." Time, 29 April 1996, p. 30.
Lundstrom, Meg. "A Question of Excellence; Desegregation’s Legacy Challenges Schools." Bergen Record, 28 March 1985, sec. A, p. 1.
Lundstrom, Meg and Jeffrey Lamm. "Cliffs Board wants students sent to Tenafly." Bergen Record, 6 November 1985, sec. C, p. 4.
McGraw, Seamus. "Senate sides with Tenafly; OKs measure to bar forced school merger." Bergen Record, 30 June 1992, sec. A, p. 3.
Milmed, Leon S., "The New Jeresy Constitution of 1947," 1 N.J.S.A. Const. 1 (West 1997).
Neuborne, Bert. "Forward: State Constitutions and the Evolution of Positive Rights," 20 Rutgers Law Journal, 881 (1989).
Nieves, Blanca. "Tenafly talks with expert on racial balance." Bergen Record, 23 November 1994, sec. B, p. 1.
________. "Englewood parents weigh in." Bergen Record, 13 July 1995, sec. NJ, p. 8.
________. "Officials say end of desegregation fight near." Bergen Record, 1 September 1995, sec. N, p. 1.
________. "650 in Tenafly protest school merger; Urge junkyard-dog approach in Englewood case." Bergen Record, 21 September 1995, sec. N, p. 1.
________. "3000 at school merger hearing; We will fight… Tenafly crowd rejects regionalization plan." Bergen Record, 19 October 1995, sec. A, p. 1.
Nieves, Blanca and Michael Markowitz. "Angry crowd vs. school merger; Foes, who vow big fight, are called racist." Bergen Record, 28 September 1995, sec. A, p. 1.
Nieves, Blanca and Leslie Brody. "Tenafly ready for school battle; Merger plan fiercely opposed." Bergen Record, 17 October 1995, sec. N, p. 1.
________. "Englewood: End racial imbalance; Defends school system against critics." Bergen Record, 24 October 1995, sec. A, p. 1.
Orfield Gary, and John Yun. "Resegregation in American Schools," The Harvard Civil Rights Project, June 1999; available from http://www.law.harvard.edu/civilrights/publications/resegregation99.html; Internet; accessed August 1999.
Patterson, Orlando. "What to Do When Busing Becomes Irrelevant." New York Times, 18 July 1999, sec. A, p. 35.
Pillets, Jeff. "Tackling school’s racial inequality; Dwight Morrow big issue for N.J." Bergen Record, 4 June 1995, sec. A, p. 1.
________. "‘Painless’ segregation cures offered." Bergen Record, 9 June 1995, sec. N, p. 1.
Pillets, Jeff, Charles Young, and Michael Markowitz. "Englewood’s dilemma." Bergen Record, 1 October 1995, sec. RO, p. 7.
Rimbach, Jean. "Desegregation summit starting." Bergen Record, 14 December 1995, sec. N, p. 19.
________. "Ex-Reagan aide enters fray at Dwight Morrow." Bergen Record, 1 March 1996, sec. N, p. 1.
________. "Dwight Morrow demand issued." Bergen Record, 5 April 1996, sec. A, p.1.
________. "Book closing on desegregation fight." Bergen Record, 25 June 1996, sec. N, p. 1.
________. "No timetable on desegregation recommendation." Bergen Record, 20 September 1996, sec. L, p.3.
________. "State won’t fund desegregation." Bergen Record, 30 September 1996, sec. A, p.1.
________. "Englewood turning up heat in school battle." Bergen Record, 29 November 1996, sec. A, p.1.
________. "State won’t set deadline for Englewood desegregation." Bergen Record, 5 December 1996, sec. L, p.1.
________. "Long integration fight takes toll in Englewood." Bergen Record, 15 March 1997, sec. A, p. 1.
________. "Englewood school merger rejected." Bergen Record, 7 February 1997, sec. A, p.1.
________. "Solution Eludes Dwight Morrow," Bergen Record, 9 February 1997, sec. N, p. 1.
________. "Dwight Morrow: Little daylight," Bergen Record, 13 April 1997, sec. N, p. 1.
Singer, Henry. "Cliffs must make case for pullout." Bergen Record, 26 June 1985, sec. C, p. 3.
Sullivan, Ronald. "The Busing Controversy." New York Times, 11 April 1976, sec. 11, p. 26.
Tergeson, Anne E. "School denies it’s a hotbed of danger." Bergen Record, 22 October 1993, sec. B, p. 1.
Titunik, Vera. "Advocate backs Englewood suit; Cites de facto segregation in schools." Bergen Record, 4 April 1991, sec. B, p. 1.
________. "School merger is topic of debate." Bergen Record, 1 November 1991, sec. B, p. 3.
Toolen, Tom and Jeffrey Lamm. "A move to force union of schools." Bergen Record, 24 January 1986, sec. A, p. 1.
Topousis, Tom. "Fighting racism charges." Bergen Record, 29 September 1995, sec. NJ, p. 1.
Tractenberg, Paul L., "The Evolution and Implementation of Educational Rights under the New Jersey Constitution of 1947." 20 Rutgers Law Journal, 827 (1998).
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April 1995, sec. R, p. 1.
"What are children to think about all the anger?" Bergen Record, 26 October 1995, sec. N, p. 7.
Yellin, Emily and David Firestone. "By Court Order, Busing Ends Where It Began." New York Times, 11 September 1999, sec. A, p. 1.
Englewood Press, (Englewood, N.J), 10 February 1933, p. 1.
Bergen Evening Record, 22 August 1962, p. 1.
Englewood Press Journal, (Englewood, N.J.), 3 October 1962, p. 1.
Englewood Press Journal, 4 October 1962, p. 4.
Englewood Press Journal, 7 May 1962, p. 1.
Englewood Press Journal, 25 May 1962, p. 1.
Fishel, Jr., Leslie H. "The North and the Negro, 1865-1900: A Study in Race Discrimination." Ph.D. diss., Harvard University, 1953.
La Frankie, Robert. "The Englewood, New Jersey School Conflict: A Case Study of Decision-Making and Racial Segregation, 1930-1963." Ph.D. diss., Columbia University, 1967.
Mazur, D. Bennett. "People, Politics and Planning: The Comparative History of Three Suburban Communities" Ph.D. diss., Rutgers University, 1981.
Patterson, Melina. "Schools and the Construction of the Local: Place,
Race, and Politics in Bergen County." M.A. diss., Rutgers University, 1997.
1 Board of Education of Englewood Cliffs v. Board of Education of Englewood v. Board of Education of Tenafly, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 4.
2 Richard Lacayo, "Trial for Our Times," Time, 9 October 1995, 30.
3 Robert Hanley, "Island in a Sea of White Resistance," New York Times, 21 December 1995, sec. B, p. 1.
4 Jenkins v. Tp. Of Morris School District and Bd. Of Educ., 58 N.J. 483 (1971).
5 Plessy v. Ferguson, 163 U.S. 537 (1896).
6 Brown v. Board of Education of Topeka, 347 U.S. 483, 495 (1954).
7 Richard Kluger, Simple Justice, (New York: Vintage Books, 1975), 685.
8 Brown, 494.
9 Brown v. Board of Education of Topeka, 349 U.S. 294, 301 (1955).
10 Kluger, 745.
11 Stanley I. Kutler, ed., The Supreme Court and the Constitution, 3d ed. (New York, W.W. Norton & Company, 1984), 553.
12 Federal District Court Judge John Parker wrote the opinion in Briggs v. Elliott after it was remanded by the Supreme Court in Brown. He ruled, "The Constitution…does not require integration. It merely forbids discrimination. It does not forbid such discrimination as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation." Southern Courts and Southern state governments used the Parker doctrine to minimize the impact of Brown. Briggs v. Elliott, 132 F. Supp. 776 (1955). Kluger, 752.
13 Green v. County School Board, 391 U.S. 430, 439 (1968).
14 United States v. Scotland Neck Bd. of Educ., 407 U.S. 484 (1972).
15 Leon S. Milmed, The New Jeresy Constitution of 1947, 1 N.J.S.A. Const. 1, 15 (West 1997).
16 Bert Neuborne, "Forward: State Constitutions and the Evolution of Positive Rights," 20 Rutgers L.J. 881, 893 (1989).
17 N.J. Const., Art. 1, ¶5.
18 Booker v. Bd. Of Educ. Of Plainfield, 45 N.J. 161, 166 (1965).
19 Ibid., 170-171.
20 N.J. Const. art. 8, § 4, ¶1.
21 Booker, 189.
22 The decision also required desegregation solutions that produced "the greatest dispersal consistent with sound educational values and procedures," meaning that token integration solutions would not be considered constitutionally sufficient remedies.
23 Jenkins, 485.
25 Gary Orfield and John Yun, "Resegregation in American Schools," The Harvard Civil Rights Project, June 1999; available from http://www.law.harvard.edu/civilrights/publications/resegregation99.html; Internet; accessed August 1999.
26 John Ehrlichman, Witness to Power: The Nixon Years (New York: Simon & Schuster, 1982), 223.
27 Dan T. Carter, From George Wallace to Newt Gingrich (Baton Rouge: Louisiana State University Press, 1996), 36.
28 Kluger, 609.
29 Milliken v. Bradley, 418 U.S. 717.
30 Kluger, 772.
31 League of Women Voters, Know Your Town: Englewood Cliffs (Englewood Cliffs: Englewood Cliffs Chamber of Commerce, 1974), 10.
32 Melina Patterson, "Schools and the Construction of the Local: Place, Race, and Politics in Bergen County" (M.A. diss., Rutgers University, 1997), 41.
33 Leslie H. Fishel, Jr., "The North and the Negro, 1865-1900: A Study in Race Discrimination" (Ph.D. diss., Harvard University, 1953), 169.
34 D. Bennett Mazur, "People, Politics and Planning: The Comparative History of Three Suburban Communities" (Ph.D. diss., Rutgers University, 1981), 136-139.
35 Patterson, 43.
36 Mazur, 493.
37 Englewood Press, (Englewood, N.J), 10 February 1933, p. 1.
38 Teaneck, unlike Englewood, later became actively involved in incorporating equality into city’s schools and housing. It became the country’s first municipality to voluntarily integrate its schools.
39 Patterson, 46.
40 Robert La Frankie, "The Englewood, New Jersey School Conflict: A Case Study of Decision-Making and Racial Segregation, 1930-1963" (Ph.D. diss., Columbia University, 1967), 15.
41 Mazur, 558.
42 Mazur, 597.
43 Patterson, 55.
44 Mazur, 539.
45 La Frankie, 28.
46 Patterson, 21.
47 Pierce v. Union District School Trustees, 46 N.J.L. 76 (1884) held that children should be educated in the public school nearest their residence, unless there was a "just" reason to send them elsewhere.
48 La Frankie, 35.
50 Ibid., 51.
51 Ibid., 71.
52 Bergen Evening Record, 22 August 1962, p. 1.
53 Englewood Press Journal (Englewood, N.J.), 4 October 1962, p. 4.
54 La Frankie, 58.
55 Englewood Press Journal, 3 October 1962, p. 1.
56 Englewood Press Journal, 7 May 1962, p. 1.
57 Englewood Press Journal, 25 May 1962, p. 1.
58 "Cliffs withdraws bid to transfer HS students," Press Journal, 5 February 1981, p. 1.
59 Board of Education of Englewood Cliffs v. Board of Education of Englewood , 257 N.J. Super. 413 (App. Div. 1992), 432.
60 Compounding the problem, the relative isolation of blacks hardly improved. In 1970, nearly half of all blacks in Bergen County lived in Englewood, while the city housed only 5 percent of the county’s population. Patterson, 115.
61 Englewood Cliffs v. Englewood, 432.
62 Meg Lundstrom, "A Question of Excellence; Desegregation’s Legacy Challenges Schools," Bergen Record, 28 March 1985, sec. A, p. 1.
64 Jonathan Friendly, "2 Jersey Towns, One Wealthy, One Less So, Compete For Students From a 3d," 18 December 1985, New York Times, sec. B, p. 3.
65 Brief for Respondent/Cross-petitioner Board of Education of Englewood at 8, Board of Education of Englewood Cliffs v. Board of Education of Englewood, Office of Administrative Law, OAL Dkt. No. EDU 1086-86.
66 John H. Kuhn, "Tenafly will accept students from Cliffs," Bergen Record, 12 November 1985, sec. C, p. 3.
67 There is evidence of an informal meeting between the superintendents of Tenafly and Englewood Cliffs in 1982 discussing the establishment of a tuition policy.
68 "In Tenafly," Englewood Press Journal, 1 November 1962, p. 4.
69 Samuel S. Vaughan, The Little Church; One Hundred Years at the Church of the Atonement, 1868-1968, Tenafly, New Jersey (1969), p. 100-101.
70 Brief for Cross-Respondent Tenafly Board of Education at 16, Board of Education of Englewood Cliffs v. Board of Education of Englewood, Office of Administrative Law, OAL Dkt. No. EDU 1086-86.
71 Englewood Cliffs v. Englewood, 434.
72 Brief for Cross-Respondent Tenafly Board of Education at 19, Office of Administrative Law.
74 Jeffrey Lamm, "Cliffs selects Tenafly school; Would end Englewood relationship," Bergen Record, 7 November 1985, sec. D, p. 3.
75 Jeffrey Lamm, "Transfer agreement in jeopardy," Bergen Record, 29 May 1985, sec. C, p. 3.
77 Henry Singer, "Cliffs must make case for pullout," Bergen Record, 26 June 1985, sec. C, p. 3.
78 Friendly, "2 Jersey Towns, One Wealthy, One Less So, Compete For Students From a 3d," p. 3.
79 Board of Education of Englewood Cliffs v. Board of Education of Englewood v. Board of Education of Tenafly, Office of Administrative Law, OAL Dkt. No. EDU 1086-86, 12.
80 Singer, "Cliffs must make case for pullout," p. 3.
81 Henry Singer, "Racism suspected in Dwight Morrow pullout move," Bergen Record, 25 June 1985, sec. C, p. 1.
82 Jeffrey Lamm, "Cliffs Trustees move on pullout from Englewood," Bergen Record, 24 September 1985, sec. C, p. 3.
83 Friendly, "2 Jersey Towns, One Wealthy, One Less So, Compete For Students From a 3d," p. 3.
84 This projected figure represents additional money from Cliffs over and above the $500,000 that Tenafly was receiving from tuition-paying students.
85 Kuhn, "Tenafly will accept students from Cliffs," p. 3.
86 Meg Lundstrom and Jeffrey Lamm, "Cliffs Board wants students sent to Tenafly," 6 November 1985, sec. C, p. 4.
87 "Dwight Morrow’s Dilemma," Bergen Record, 10 January 1986, sec. A, p. 26.
88 Eveyln Kaye, letter to the editor, Bergen Record, 9 February 1986, sec. O, p. 2.
89 Arnold Mytelka, interview by author, tape recording, Springfield, N.J., 24 September 1999.
92 Tom Toolen and Jeffrey Lamm, "A move to force union of schools," Bergen Record, 24 January 1986, sec. A, p. 1.
94 Ron Hollander, "Warring school districts get $3.7M; Legal struggle sets a record lesson," Bergen Record, 3 April 1989, sec. A, p. 1.
95 John Kuhn, "Ex-Attorneys-General pair up on legal team," Bergen Record, 15 July 1986, sec. C, p. 3.
96 Hollander, 1.
97 In its Statement of Educational Policy published 5 November 1969, the State Board proclaimed: "The elimination of racial imbalance is not to be sought as an end in itself but because such imbalance stands as a deterrent and handicap to the improvement of education for all."
98 David Armor, Forced Justice (New York: Oxford University Press, 1995), 59.
99 Gary Orfield and Susan E. Eaton, Dismantling Desegregation (New York: The New Press, 1996), 334.
100 Peter Applebome, "A Wave of Suits Seeks a Reversal of School Busing," New York Times, 26 September 1995, sec. B, p. 8.
101 Gary Orfield offers a common rebuttal to this claim: "You don’t gain anything from sitting next to somebody with a different skin color. But you gain a lot from moving from an isolated poverty setting into a middle-class setting." James S. Kunen, "The End of Integration," Time, 29 April 1996, p. 34.
102 Sherri Lippman, letter to author, 11 August 1999.
103 Blanca A. Nieves and Leslie Brody, "Englewood: End racial imbalance; Defends school system against critics," Bergen Record, 24 October 1995, sec. A, p. 1.
104 Mytelka, interview by author.
105 Armor, Forced Justice, 87.
106 Ibid., 112.
107 Important desegregation cases have involved countywide districts: the 1968 Green case ordered desegregation of the New Kent County school district; the desegregation of schools in Prince George County, Maryland has been in and out of court for decades.
108 Real estate agent, identity withheld, interview by author, November 1998.
109 Blanca Nieves and Leslie Brody, "Tenafly ready for school battle; Merger plan fiercely opposed," Bergen Record, 17 October 1995, sec. N, p. 1.
110 Blanca Nieves, "3000 at school merger hearing; We will fight… Tenafly crowd rejects regionalization plan," Bergen Record, 19 October 1995, sec. A, p. 1.
111 Blanca Nieves, "650 in Tenafly protest school merger; Urge junkyard-dog approach in Englewood case," Bergen Record, 21 September 1995, sec. N, p. 1.
112 David Goodman, "America’s Newest Class War," Mother Jones, September/October 1999, 69.
113 Patterson, 66.
114 Ibid., 78.
115 James Rothschild, Jr., interview by author, tape recording, Morristown, N.J., 7 September 1999.
116 Brief for Petitioner Board of Education of Englewood Cliffs, passim, Office of Administrative Law.
117 Brief for Respondent/Cross-Petitioner Board of Education of Englewood at 36, Office of Administrative Law.
118 Robert D. Fleischer, Expert Testimony Report for Englewood, Board of Education of the Borough of Englewood Cliffs v. Board of Education of the City of Englewood v. Board of Education of the Borough Tenafly, 15.
119 Brief for Respondent/Cross-Petitioner Board of Education of Englewood at 12, Office of Administrative Law.
120 Ibid., 50.
121 Ibid., 63-64.
122 Ibid., 1.
123 Arnold Mytelka, interview by author.
124 Englewood Cliffs v. Englewood, 430.
125 Ibid., 18.
126 Brief for Respondent/Cross-Petitioner Board of Education of Englewood at 3, Office of Administrative Law.
127 This is particularly interesting, given that the New Jersey Jenkins decision cited the benefits of a "bi-racial experience."
128 Hanley, "Island in a Sea of White Resistance," p. 1.
129 Leslie Brody, "Overlooked in the debate: Minorities that opt for private school," Bergen Record, 12 November 1995, sec. A, p. 1.
130 Years later, Gary Orfield expressed that fears which lead to white flight are greatest between an initial desegregation proposal and the court order itself. In the Englewood case specifically, he continues to endorse a regional solution, even while predicting a significant loss of white students in the first year of its implementation. He anticipates a large rebound thereafter. Gary Orfield, interview by author, New Brunswick, N.J., 6 March 2000.
131 Unlike Cliffs, Tenafly did not have to cast DMHS as an inferior school; it only sought to prove that no "substantial negative impact" would result upon Englewood should severance be granted.
132 Reply brief for Cross-Respondent Tenafly Board of Education at 2, Office of Administrative Law, emphasis in original.
133 James Rothschild, interview by author.
134 James Rothschild, interview by author.
135 Brief for Cross-Respondent Tenafly Board of Education at 24, Office of Administrative Law.
136 Englewood retorted that the years of litigation itself, and the championing of Cliffs students’ rights to attend THS, legitimized Tenafly and put a positive pressure on Cliffs students not to attend DMHS.
137 Reply brief for Cross-Respondent Tenafly Board of Education at 6, Office of Administrative Law.
138 Ibid., 7.
139 Brief for Cross-Respondent Tenafly Board of Education at 8, Office of Administrative Law.
140 Brief for Cross-Respondent Tenafly Board of Education at 47, Office of Administrative Law.
141 Cross-Respondent Tenafly Board of Education’s Reply to the Exceptions of the Englewood Board of Education at 3, Office of Adminsitrative Law, emphasis in original.
142 Brief of the Tenafly Board of Education in Support of Motion for Leave to Appeal at 17, Supreme Court of New Jersey.
143 Some scholars dismiss this type of argument on its face. One typical position argues that "exclusive enclaves are morally parasitic. The spirit of the case against legal segregation is against exclusiveness and group self-segregation, simply." George Kateb, "Brown and the Harm of Legal Segregation," in Race, Law, and Culture, ed. Austin Sarat (New York: Oxford University Press, 1997), 106.
144 Brief of the Board of Education of the Borough of Tenafly in Opposition to the Appeal of the Board of Education of the City of Englewood at 43, Superior Court of New Jersey, Appellate Division.
145 Brief for Cross-Respondent Tenafly Board of Education at 44, Office of Administrative Law.
146 Reply brief for Cross-Respondent Tenafly Board of Education at 22, Office of Administrative Law.
147 Noting that in the 1985-86 academic year only twenty-seven out of 941 students were bused to school, Tenafly concluded that all other students walked to school, and would consequently need to be bused to a new school. Most students were actually driven to school, or drove themselves after obtaining a driver’s license. An additional 2.4-mile drive to DMHS hardly seems preventative. In this sense, the busing issue seems to be little more than a red herring. However, should the regional schools have been split by grade, then busing between schools would be necessary for students "on the cusp" (tenth or eleventh graders taking advanced or remedial classes), as well as for extracurricular activities, including athletics.
148 Brief for Cross-Respondent Tenafly Board of Education at 62, Office of Administrative Law.
149 Ibid., 64.
150 Ibid., 90.
151 Ibid., 65.
152 Board of Education of Englewood Cliffs v. Board of Education of Englewood v. Board of Education of Tenafly, Office of Administrative Law, OAL Dkt. No. EDU 1086-86.
157 Cross-Respondent Tenafly Board of Education’s Exceptions to the Initial Decision at 3, Office of Administrative Law.
158 Ibid., 26.
159 Brief of the Tenafly Board of Education on Appeal to the New Jersey State Board of Education at 4.
160 Ibid., 16.
161 Henry Gottlieb, "School Case Heats Up On Appeal," N.J.L.J., 23 December 1991, p. 1.
162 Vera Titunik, "Advocate backs Englewood suit; Cites de facto segregation in schools," Bergen Record, 4 April 1991, sec. B, p. 1.
163 Brief of Cross-Appellant Englewood Board of Education in Support of its Cross-Appeal and in Opposition to the Appeal of Appellant Englewood Cliffs Board of Education at 6, Superior Court of New Jersey, Appellate Division.
164 Ibid., 43.
165 Reply Brief of Cross-Appellant Englewood Board of Education at 18, Superior Court of New Jersey, Appellate Division.
166 Magnet programs establish rigorous and specialized curriculums that are designed to draw white students from surrounding communities on a voluntary basis. These programs are most often implemented in schools that maintain a small majority of whites, in hopes of drawing more whites so that the school does not reach a "tipping point" (see p. 63). In this case, the magnet school would draw students to relieve severe racial imbalance.
167 Reply Brief of Cross-Appellant Englewood Board of Education at 18, Superior Court of New Jersey, Appellate Division, 3.
168 Titunik, "Advocate backs Englewood suit; Cites de facto segregation in schools," p. 1.
169 Seamus McGraw, "School merger amendment draws criticism; Foes say bias underlies plan to shield Tenafly," Bergen Record, 9 June 1992, sec. A, p. 3.
170 Seamus McGraw, "Senate sides with Tenafly; OKs measure to bar forced school merger," Bergen Record, 30 June 1992, sec. A, p. 3.
171 Vera Titunik, "School merger is topic of debate," Bergen Record, 1 November 1991, sec. B, p. 3.
172 Justice Virginia A. Long, interview by author, tape recording, New Brunswick, N.J., 1 December 1999.
174 Englewood Cliffs v. Englewood , 457.
175 Ibid., 461.
176 Ibid., 465.
177 Ibid., 472.
178 Ibid., 477.
179 Ibid., 482.
180 Board of Education of Englewood Cliffs v. Board of Education of Englewood, 132 N.J. 327, 329.
181 Judge Long became Justice Long of the New Jersey Supreme Court in 1999. She was confirmed by the Senate almost unanimously—Gerald Cardinale cast the sole dissenting vote.
182 Board Of Education Of Oklahoma City v. Dowell, 498 U.S. 237 (1991).
183 Freeman v. Pitts, 503 U.S. 467, 469 (1992).
184 Ibid., 506.
185 Missouri v. Jenkins, 515 U.S. 70 (1995).
186 Gary Orfield described Thomas’ opinion as "the single worst piece of judicial writing on school desegregation." Gary Orfield, interview by author.
187 Missouri v. Jenkins.
188 Anne E. Tergeson, "School denies it’s a hotbed of danger," Bergen Record, 22 October 1993, sec. B, p. 1.
189 Letter-brief of the Tenafly Board of Education to Commissioner Leo Klagholz, 11 June 1996, p. 18.
190 Debra Lynn Vial, "Three decades later; School integration’s failed promise," Bergen Record, 16 April 1995, sec. R, p. 1.
191 Alexander M. Bickel, "Where Do We Go From Here?" New Republic, 7 February 1970, p. 20.
192 Patterson, 53.
193 Students attending predominantly minority schools frequently internalize this attitude. In 1995, a senior at DMHS expressed her frustration: "People think you’re stupid because you go to [DMHS]. They ask me if I get mugged in the hallways. They wonder how I make it out of here alive. That’s ridiculous." Vial, "Three decades later," p. 1.
194 J. Anthony Lukas, Common Ground, (New York: Alfred A. Knopf, 1986), 259.
195 Lukas, 254.
196 Ronald P. Formisano, Boston Against Busing, (Chapel Hill: University of North Carolina Press, 1991), 2.
197 Ibid., 3.
199 Christine Rossell, The Carrot or the Stick for School Desegregation Policy, (Philadelphia: Temple University Press, 1990), 13.
200 Brief of the Tenafly Board of Education on Appeal to the New Jersey State Board of Education at 45.
201 Blanca Nieves, "Tenafly talks with expert on racial balance," Bergen Record, 23 November 1994, sec. B, p. 1.
202 Jay Doolan, Education Department Official, press release, September 1995.
203 Jeff Pillets, "Tackling school’s racial inequality; Dwight Morrow big issue for N.J.," Bergen Record, 4 June 1995, sec. A, p. 1.
204 Nieves, "650 in Tenafly protest school merger," p. 1.
205 Blanca Nieves and Leslie Brody, "Englewood: End racial imbalance," p. 6.
206 Michael A. Kirsh, letter to the editor, Bergen Record, 9 November 1995, sec. N, p. 10.
207 Nieves, "650 in Tenafly protest school merger," p. 1.
208 The New York Times quoted Plawker in 1976, when he also was the Cliffs Board’s president. Foreshadowing the intense emotions roused twenty years later, he said that if better education could be found outside of Englewood, "then we would have to bite the bullet and go ahead and fight the battle for change right through to the end." Ronald Sullivan, "The Busing Controversy," New York Times, 11 April 1976, sec. 11, p. 26.
209 Blanca Nieves, "Officials say end of desegregation fight near," Bergen Record, 1 September 1995, sec. N, p. 1.
210 Should Englewood have won a regional district, private schools were prepared to reap the benefits of white flight. Capitalism and cynicism collided when the private Dwight-Englewood School in Englewood built a large addition to its facility in late 1995.
211 Armor’s predicted attrition is 400 white and Asian students from THS, and he assumes no attrition from the DMHS population; under this scenario, the new school would be two-thirds black and Hispanic, and one-third white and Asian.
212 David Armor, "Results of the Bergen County Desegregation Survey," Report to the Tenafly Board of Education, 4 April 1995, 1.
213 Ibid., 2.
214 James Rothschild, Jr., interview by author.
215 Jeff Pillets, "‘Painless’ segregation cures offered," Bergen Record, 9 June 1995, sec. N, p. 1.
216 First published in the Bergen Record, 1 October 1995, sec. A, p. 1.
217 Sherri Lippman, letter to author.
218 Tom Topousis, "Fighting racism charges," Bergen Record, 29 September 1995, sec. NJ, p. 1.
219 Joan Avery, letter to the editor, Bergen Record, 8 October 1995, sec. O, p. 3.
220 Jeff Pillets, Charles Young, and Michael Markowitz, "Englewood’s dilemma," Bergen Record, 1 October 1995, sec. RO, p. 7.
221 Blanca Nieves, "Englewood parents weigh in," Bergen Record, 13 July 1995, sec. NJ, p. 8.
222 "A Proposal of Expanded Education For The Region," "Teacher, Dwight Morrow High School," 13 November 1995.
223 ECHO-II argued that Cliffs’ low property tax rate would increase, as the new school district’s funding would be based on the town’s tax ratables, rather than on a per-student basis. Should no Cliffs children attend DMHS, as was the situation in 1995, Cliffs residents would have to pay a large school tax nonetheless.
224 ECHO-II Newsletter, October 1995, p. 3.
225 Blanca Nieves and Michael Markowitz, "Angry crowd vs. school merger; Foes, who vow big fight, are called racist," Bergen Record, 28 September 1995, sec. A, p. 1.
226 The last time such a turnout was expected for a Tenafly public hearing was in 1968, where 1,000 jammed the High School auditorium to protest two development plans for the then undeveloped East Hill area. Residents fought both a private developer’s proposal to build a "virtual city" of high-rise apartments and the incoming Nixon administration’s efforts to construct an Anti-Ballistic Missile Site with gigantic radar installations. Mazur, 837-8.
227 James Ahearn, "Integrating Dwight Morrow: State was bluffing," Bergen Record, 12 February 1997, sec. N, p. 7.
228 Hanley, "Island in a Sea of White Resistance," p. 1.
229 Richard Cowen, "Whitman: Stop shouting and talk," Bergen Record, 19 October 1995, sec. A, p. 1.
230 Governor Christine Todd Whitman, interview by author, Piscataway, N.J., 12 January 2000.
231 Leslie Brody, "Students forgotten amid sound and fury," Bergen Record, 22 October 1995, sec. A, p. 1.
233 Nieves and Brody, "Englewood: End racial imbalance," p. 6.
234 A survey conducted soon after by the Oracle revealed that 63 percent of the student body opposed regionalization, 9 percent supported it, and the remaining were undecided. Leslie Brody, "Belying fears, prejudice," Bergen Record, 22 February 1996, sec. A, p. 1.
235 Lindsay Faber, "One to One," ECHO Lite, October 1995, p. 4, emphasis in original.
237 James Rothschild, Jr., interview by author.
238 Arnold Mytelka, interview by author.
239 A. Harry Passow, letter to the editor, Bergen Record, 10 November 1995, sec. N, p. 1.
240 "What are children to think about all the anger?" Bergen Record, 26 October 1995, sec. N, p. 7.
241 Ovetta Wiggins, "Englewood blasts the NAACP," Bergen Record, 15 November 1995, sec. N, p. 1.
242 Joseph Berger, "A Child of Segregation Says It Was Not All Bad," New York Times, 19 November 1995, sec. 1, p. 46.
243 Jean Rimbach, "Dwight Morrow: Little daylight," Bergen Record, 13 April 1997, sec. N, p. 1.
244 Bernard Freamon, interview by author, tape recording, Newark, N.J., 17 December 1999.
245 Freamon and Mytelka differ on this point. Upon an Englewood victory and a strongly worded judicial opinion, Freamon forsees Camden suing Cherry Hill, and South Orange suing West Orange. Mytelka notes that the Englewood case features very specific circumstances, and would not likely trigger other regionalization lawsuits.
246 Robert Hanley, "New Jersey Will Not Force High School’s Desegregation," New York Times, 7 February 1997, sec. B, p. 4.
247 Jean Rimbach, "Solution Eludes Dwight Morrow," Bergen Record, 9 February 1997, sec. N, p. 1.
248 Reply Brief of Appellant Board of Education of the City of Englewood, Board of Education of Englewood Cliffs v. Board of Education of Englewood v. Board of Education of Tenafly, Superior Court of New Jersey, Appellate Division, 20 May 1999, p. 12.
249 Englewood’s lawyer Mytelka acknowledged in an interview that "it was highly unlikely that regionalization would be ordered by any court other than the Supreme Court of New Jersey."
250 Jean Rimbach, "Long integration fight takes toll in Englewood," Bergen Record, 15 March 1997, sec. A, p. 1.
251 "Englewood’s magnet schools," Bergen Record, 8 January 1999, sec. L, p. 8.
252 Bernard Freamon, interview by author.
253 Governor Whitman, interview by author.
254 Justice Virginia Long, interview by author.
255 Tenafly had long argued that "regionalization would be a political bonanza for the Englewood Board." Brief of the Tenafly Board of Education at 49, Superior Court of New Jersey, Appellate Division, 12 April 1999.
256 Rimbach, "Long integration fight takes toll in Englewood," p. 1.
257 "Inside Trenton," WNET-TV, November 1995.
258 Sherri Lippman, letter to author.
259 Patterson, 10.
260 Melina Patterson, interview by author, New Brunswick, N.J., 27 September 1999.
261 Arnold Mytelka, interview by author.
262 Armor, Forced Justice, 65.
263 Formisano, 238.
264 Jennifer L. Hochschild, The New American Dilemma: Liberal Democracy and School Desegregation (New Haven: Yale University Press, 1984), pp. 155-6.
265 Over the course of Boston’s busing plan, white population in the public schools decreased from 52 percent in 1974 to 16 percent in 1999.
266 Orlando Patterson, "What to Do When Busing Becomes Irrelevant," New York Times, 18 July 1999, sec. A, p. 35.
267 Emily Yellin and David Firestone, "By Court Order, Busing Ends Where It Began," New York Times, 11 September 1999, sec. A, p. 1.
268 J. Anthony Lukas, "The Need For A Tougher Kind of Heroism," Time, 29 April 1996, p. 30.
269 John Balz, "Separation of Races Found OK by Many Young People," Los Angeles Times, 17 August 1999, sec. A, p. 10.
270 Patterson, "What to Do When Busing Becomes Irrelevant," p. 35.
271 Armor, Forced Justice, 205.