Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiffs appeal from a Law Division judgment dismissing their complaint, entered on defendants' motion to strike. The trial court held that plaintiffs had failed to exhaust their administrative remedies and the matter was one which should be heard and determined by the Commissioner of Education. The case involves an attempt by plaintiffs to enforce the neighborhood school concept, as opposed to a plan by the Board of Education of Teaneck Township ("board") to achieve better racial balance and use of local school facilities.
Since October 1961 the board had had under constant discussion the problems posed by the marked increase in Negro pupils in two of its elementary schools, Washington Irving and William Cullen Bryant. A March 1962 study of the concentration of Negro children in the Teaneck Township school system showed that it was about 25% in Washington Irving and 36% in William Cullen Bryant. Two years later a further study disclosed that the percentages had increased to 40% and 54%, respectively. According to the superintendent of schools, if the increase in concentration continued, it was anticipated that the Bryant percentage would reach 72% by 1966.
In June 1962 the board adopted a program known as the Voluntary Optional Pupil Transfer Plan, effective beginning
in September of that year. Only five or six pupils took advantage of this program, so that in May 1963 the board modified the plan, effective the following fall. In the meantime, the board continued its studies of the school situation. In December 1963 it mailed to all taxpayers a publication noting the studies being made of the problem of racial imbalance and listing three possible courses of action to meet it. The first of these was the plan described below. During the period when the board was considering what action should be taken, and between November 1963 and January 1964, some 30 citizens and citizen groups submitted plans for integration.
At a public meeting held on May 13, 1964 the board, by a vote of 7-2, adopted a resolution establishing a program designed to improve educational opportunities in the township. The resolution read:
"WHEREAS, Teaneck has enjoyed a long and distinguished reputation for its desire to provide a sound educational program for its total school population, and
WHEREAS, Teaneck as a total community is becoming more complex in its heterogeneity of people, interests and backgrounds, and
WHEREAS, The Teaneck Board of Education has the legal responsibility to promote equality of education for all the children of Teaneck, and
WHEREAS, The Teaneck Board of Education believes it should organize the school program to best utilize the space provided, the strengths and interests of its various faculty members as well as enhance the learning potentialities of the children in the community, now therefore be it
RESOLVED, That beginning September 1, 1964, the Teaneck Board of Education initiate a program entitled 'Improvement of Educational Opportunity' to include the following --
1. Initiate a Central School for all sixth grade pupils in the Bryant School.
2. Increase the Washington Irving School district to include those children living within the area bounded by the west side of Teaneck Road, including both sides of State Street and Terrace Circle on the north, and west to the Railroad tracks, thence southerly to West Englewood Avenue.
3. Assign all pupils in the Bryant School district in grades one through five to the several elementary schools of the Township in accordance with the 'Assignment Policy.'
4. Maintain a continuous evaluation of the new program and give a comprehensive review two years hence with a view to taking any further action which may appear necessary at that time."
The "Assignment Policy" to implement the plan, mentioned in paragraph 3 of the resolution, provided, among other things, that children in grades 1 through 5 living in the William Cullen Bryant school district were to be assigned in accordance with the following criteria: (1) all children were to be assigned to the several elementary schools with the intention that they remain in those schools through the 5th grade; (2) seats available within room maxima were to guide the first year's assignment, the maxima to be subject to change as need warranted in terms of the number to be accommodated and building limitations; (3) seats available within a given school must accommodate all of the children from the same family; and (4) pupils were to be assigned alphabetically, beginning with school No. 1 and proceeding to schools Nos. 3, 4, 5, 7 and 8, in that order. An "addenda" to the resolution recommended that children assigned to the eight elementary schools of the township, whose homes were more than 1.2 miles distant by accepted streets from the school to which they were assigned, be eligible for transportation as provided by the board of education, and the secretary to the board was requested to prepare appropriate resolutions with a view to establishing bus lines and entering into contractual arrangements. The superintendent of schools and the secretary were requested to recommend to the board, in September 1964, budgetary arrangements to cover the cost of the new plan.
On June 5, 1964 a complaint was filed attacking the May 13 action taken by the board. Plaintiff Frank Schults, Jr., suing by his father and next friend, alleges that he attended the 3rd grade in William Cullen Bryant, the public school serving the neighborhood in which he resides, during the 1963-64 school year, and would be eligible to continue in the 4th grade
in that school but for the adoption of the proposed plan. The remaining individual plaintiffs claim to be taxpayers. Plaintiff Neighborhood School Association of Teaneck, New Jersey, Inc., claims to be an organization composed of parents or residents of the township, "formed for the purpose of preserving and promoting the neighborhood school concept in Teaneck, New Jersey, as the best means of providing high quality education for all of the children of this community."
The complaint alleges that pupils otherwise eligible to attend William Cullen Bryant will be compelled from September 1964 on to attend a public school out of their neighborhood. Paragraph 5 states that this will "jeopardize their safety, deprive them of the right to eat lunch at home, destroy an important element of family rapport, increase the period of time during which they will be under neither parental or school supervision, will deprive them of their constitutional and statutory rights to attend a public school convenient of access, and will unconstitutionally discriminate against and deny them of the equal protection of the law enjoyed by other children attending the public schools of the Township of Teaneck in their respective neighborhoods." Paragraph 6 alleges that no provision was made in the 1964-65 school budget for bus transportation and other related costs necessary to carry out the "Assignment Policy." And paragraph 8 charges that the board action of May 13, 1964 is illegal and void and should be set aside as arbitrary and an abuse of discretion and breach of faith. The reasons assigned for this conclusion are that the resolution was agreed upon in advance and was not made known to the two minority members of the nine-man board until they met on the evening of May 12, or to the public until the evening of the May 13 public meeting. Further, it is alleged that at various times prior to May 13 representations were made to the public by members of the majority that no plan was contemplated for the next school year which would incur bus transportation costs for the school district beyond those required under the previously existing bus transportation policy. The proposed plan is characterized as a
scheme to circumvent the will of the majority of the electorate as expressed in the last school election, and one which will result in a diversion of tax monies raised for educational purposes. Finally, paragraph 8 alleges that the expenditures to be incurred are not authorized by ...