motions to dismiss were granted, in the following language:
'* * * the Court is of the opinion that until the plaintiffs have attempted to avail themselves of the provisions that the administrative review provides, they have failed to comply in the remotest manner with the administrative remedy provisions, and until at least an honest attempt is made to pursue that remedy, this Court should not interfere with the state authorities and deprive them of the opportunity to put their own house in order. Since the plaintiffs have failed to pursue or even attempt to pursue the administrative remedy provided, this Court should not entertain this cause of action.
'The assertion by plaintiffs that the administrative review provided for under the laws of the State of Illinois is inadequate, without first having attempted to utilize that remedy, does not show this Court that the administrative review is in fact ineffective to produce the result attempted by the statute and desired herein by these plaintiffs.'
The concern shown by the State of New Jersey in matters concerning racial discrimination would also appear to negate any apprehension that resort to available state administrative remedies would be futile. For many years, and prior to the decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the courts of New Jersey declared it to be unlawful for boards of education, solely on the basis of race, either to exclude children from any public school, or to refuse them admission to the school nearest their residence, or to require them to attend segregated schools. Pierce v. Union District 46 N.J.L. 76 (Sup.Ct.1884), aff'd 47 N.J.L. 348 (E. & A. 1884); Raison v. Board of Education, 103 N.J.L. 547, 137 A. 847 (Sup.Ct.1927); Patterson v. Board of Education, 11 N.J.Misc. 179, 164 A. 892, aff'd. 112 N.J.L. 99, 169 A. 690 (E. & A. 1934); Hedgepeth v. Board of Education, 131 N.J.L. 153, 35 A.2d 622 (Sup.Ct.1944).
This policy against discrimination is reflected in Article 1, paragraph 5, of the 1947 New Jersey Constitution, which provides:
'No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.'
Implementing this constitutional provision is the anti-discrimination law, N.J.S.A. 18:25-1 et seq. Section 18:25-4 of this statute provides:
'All persons shall have the opportunity * * * to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, * * * without discrimination because of race, creed, color, national origin or ancestry, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.'
In Section 18:25-5(j) of the same statute a 'place of public accommodation' is defined to include:
'* * * any kindergartern, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey.'
Walker v. The Board of Education of the City of Englewood, (M-1268, May 19, 1955) is a case decided by the Commissioner of Education pursuant to his authority under this Act. In that case the complaint charged the Englewood Board of Education with discrimination resulting from a change in school boundary lines. The Commissioner not only ordered the Board to redraw the lines so as to eliminate the discrimination then complained of, but also ordered the closing of a school which had been used almost exclusively for Negro children.
Another case decided under the antidiscrimination law is Jones v. Haridor Realty Corp., 37 N.J. 384, 181 A.2d 481, (1962). There the Commissioner ordered a real estate developer to sell a home and building lot to a Negro upon the same terms available to all other purchasers. The Supreme Court of New Jersey, in affirming the Commissioner, reiterated the State's strong policy against racial discrimination, and stated that:
'No device, whether innocent or subtly purposeful, can be permitted to frustrate the legislative determination to prevent discrimination.'
The plaintiffs have not satisfied this Court that the Commissioner of Education of the State of New Jersey would not follow this clearly expressed state policy against racial discrimination in dealing with the matters alleged in the complaint. Under these circumstances, there has been no showing that a resort to the Commissioner in the first instance would be futile.
The plaintiffs in this case attack the practice followed in Englewood of assigning children to the public schools of that City pursuant to a 'neighborhood school policy', which practice, they say, because of the existence of racially segregated neighborhoods, results in racially segregated schools. In Taylor v. Board of Education, 191 F.Supp. 181 (S.D.N.Y.1961), aff'd, 2 Cir., 294 F.2d 36, cert. den. 368 U.S. 940, 82 S. Ct. 382, 7 L. Ed. 2d 339, a federal court struck down the application of a 'neighborhood school policy' which was purposefully utilized by the local school board to maintain a racially segregated school. In commenting on the 'neighborhood school policy' the court said, 191 F.Supp. at p. 195:
'The neighborhood school policy certainly is not sacrosanct. It is valid only insofar as it is operated within the confines established by the Constitution. It cannot be used as an instrument to confine Negroes within an area artificially delineated in the first instance by official acts. If it is so used, the Constitution has been violated and the courts must intervene.'
In another case involving the 'neighborhood school policy', Branche v. board of Education, 204 F.Supp. 150 (E.D.N.Y.1962), the defendants moved for a summary judgment on the ground that segregation, if it did exist in the public schools, was not the result of any deliberate action on the part of the local school board, but rather resulted from the segregated pattern of the neighborhoods. In denying the motion, the court observed that:
'The educational system that is thus compulsory and publicly afforded must deal with the inadequacy arising from adventitious segregation; it cannot accept indurate segregation on the ground that it is not coerced or planned but accepted.'
Of course, a determination of the manner in which the 'neighborhood school policy' operates in any particular community requires a consideration and evaluation of a multitude of factors. This Court feels that the Commissioner is especially well qualified, by reason of his knowledge and experience in the specialized field of education, to make these factual determinations. There is no reason to assume that the Commissioner, in the performance of his duty, will not be guided by the applicable legal principles. Under all of the circumstances, the Commissioner should be given the opportunity, at least in the first instance, to pass upon the matters set forth in plaintiffs' complaint. Until such time as plaintiffs have exhausted the state administrative remedies provided by N.J.S.A. 18:3-14 and 15, this Court should not entertain the action.
The motions to dismiss the complaint will be granted, but without prejudice to the filing of another complaint in this Court after the matter has been heard and determined by the Commissioner and the State Board of Education.
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