For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For remandment -- Justices Hall and Haneman. The opinion of the court was delivered by Jacobs, J. Hall, J. (concurring in part and dissenting in part). Justice Haneman joins in this opinion.
The petitioners appealed under R.R. 4:88-8 from a decision of the State Board of Education affirming a decision of the Commissioner of Education. We certified on our own motion before argument in the Appellate Division.
After receiving protests against the racial imbalance in the Plainfield public school system, the local Board of Education appointed a lay advisory committee to review the matter and submit its report. The committee recommended that Dr. Max Wolff of New York City be retained and in April 1962 the local Board entered into an agreement which provided that Dr. Wolff, working with a team of specialists in the areas of education, sociology, psychology and zoning, would conduct a study of the racial composition of the schools and would submit findings, conclusions and suggestions by June 15, 1962.
In due time, Dr. Wolff submitted his report and recommendations to the lay advisory committee which approved, in principle, the procedure and fact-findings of the specialists team but failed to agree on recommendations and, in turn, submitted majority and minority reports of its own to the local Board.
As indicated in Dr. Wolff's report, the Negro pupil population of the elementary schools*fn1 in Plainfield was 37 per cent in April 1962. At that time the Negro population of the Washington School was over 95 per cent; in the other elementary schools it ranged between 0 and 65 per cent, with the Emerson, Stillman, Bryant and Lincoln schools having well over 50 per cent. Dr. Wolff submitted two plans designed to reduce racial imbalance. Plan I involved a general rezoning from north-south, instead of the then current practice of east-west; this would integrate the predominantly Negro northern area of the community with the predominantly white southern area. See Sedler, "School Segregation in the North and West: Legal Aspects," 7 St. Louis U.L.J. 228, 253 (1962). Plan II, which was submitted as an alternate and preferred plan, involved the pairing of six schools into three separate sets of schools in line with what has generally become known as the Princeton plan. See Addabbo v. Donovan, 22 A.D. 2 d 383, 256 N.Y.S. 2 d 178 (1965).
In July 1962 the local Board declined to adopt either of the plans submitted by Dr. Wolff and issued a statement embodying its reasons. During the same month, it announced an optional pupil registration plan for the school year commencing September 1962. Under this plan, pupils could voluntarily transfer to schools outside their residence areas provided acceptable class sizes were not exceeded and provided further that parents supplied any necessary transportation. Only 69 pupils transferred under this plan. In September 1962 the petitioners, who are children enrolled in the Plainfield
school system and are acting through their parents or other legal representatives, filed a petition with the Commissioner of Education, protesting the local Board's refusal to adopt plans and procedures which would eliminate "racial segregation in the public schools" and "the denial of equal educational opportunities" to the petitioners and others similarly situated. An answer to the petition was duly filed and a stipulation of issues and facts was entered into in June 1963.
In the stipulation, the petitioners acknowledged that there was no issue of "intentional or deliberate segregation of elementary school pupils"; they asserted, however, that the maintenance of predominantly Negro schools engendered feelings and attitudes which tended to interfere with successful learning and tended to produce in the minds of Negro pupils "a sense of stigma and a feeling of inferiority" which had an undesirable effect upon their attitudes in education; they asserted, further, that the optional pupil registration plan did not meet or relieve the problem of racial imbalance and urged that the Commissioner approve either plan recommended by Dr. Wolff.
The stipulation set forth the local Board's position that the elementary school attendance areas in Plainfield were set up on sound educational principles and that it had no duty to alter the areas "for the sole purpose of maintaining any particular percentage of pupil distribution by color or race." It then went on to state that if the Commissioner should determine that there was racial imbalance which should be eliminated in the Plainfield schools or in any of them, then the Commissioner should approve a plan which the local Board had prepared under the designation "Sixth Grade Plan" and which it offered to put into effect by September 1963. Under this plan all sixth grades would be placed in the Washington School and "all K-5 grades in Washington School" would be transferred to other schools determined by the local Board's administrative staff on the basis of availability and utilization of classrooms; bus transportation
would be provided for all pupils who are transferred out of their original school zones irrespective of distance; and no pupils would be transferred to any school where the Negro enrollment was over 50 per cent.
No oral testimony was taken before the Commissioner who dealt with the matter on the basis of the record before him which included the petition, the answer and the stipulated issues and facts. Between the submission of Dr. Wolff's report in June 1962 and the Commissioner's decision in June 1963, the racial imbalance in some of the Plainfield schools had intensified. Thus as of April 1963, the Negro pupil population in the Washington School had risen to 96.2 per cent, in Emerson to 72.1 per cent, in Stillman to 67.6 per cent, in Bryant to 65.5 per cent and in Clinton to 58.9 per cent. The remaining elementary schools, apart from the Lincoln School which is a special school for retarded children, varied between 0.6 per cent and 44.9 per cent. The Negro pupil population in the entire elementary school system had risen to 40.4 per cent (as of April 1964 it had risen to 44.7 per cent and as of October 1964 to 47.3 per cent).
In his decision, the Commissioner first noted that there was no issue of deliberate segregation before him and that the cause of the concentration of the Negro population in particular schools was to be found in patterns of housing resulting from "a constellation of socio-economic factors." He then went on to point out that even though that be so the local Board was not thereby relieved of its responsibility to take whatever reasonable and practicable steps were available to it "to eliminate, or at least mitigate, conditions which have an adverse effect upon its pupils." Quoting from his own opinion in Fisher v. Board of Education of the City of Orange (decided May 15, 1963) he said:
"[T]he Commissioner is of the opinion that in the minds of Negro pupils and parents a stigma is attached to attending a school whose enrollment is completely or almost exclusively Negro, and that this sense of stigma and resulting feeling of inferiority have an undesirable effect upon attitudes related to successful learning. Reasoning from
this premise and recognizing the right of every child to equal educational opportunity, the Commissioner is convinced that in developing its pupil assignment policies and in planning for new school buildings, a board of education must take into account the continued existence or potential creation of a school populated entirely, or nearly so, by Negro pupils."
The Commissioner found from Plainfield's enrollment table that the Washington School was the only one where the enrollment was "almost entirely" Negro. He stated that he had given careful consideration to the two plans submitted by Dr. Wolff and the Sixth Grade Plan submitted by the local Board, that under each of the plans there would be no "all or nearly all" Negro school, and that "each plan is reasonable, practicable, and consistent with sound educational practice." He expressed the belief that it was the responsibility and prerogative of the local Board to determine which plan was best suited to the needs of the school system and he directed that the local Board select one of the three plans and put it into effect for the 1963-1964 school year. On the day following the Commissioner's decision the local Board put its own Sixth Grade Plan into operation.
The petitioners then appealed to the State Board of Education which heard argument in November 1963. In the meantime, and after the operation of the Sixth Grade Plan had become effective, there were shifts of Negro pupil population. As of October 1963 the Negro pupil population in Washington School was reduced to 36.6 per cent but Emerson rose from 72.1 per cent to 76.4 per cent, Bryant from 65.5 per cent to 67.1 per cent and Clinton from 58.9 per cent to 66.1 per cent. Stillman dropped somewhat from 67.6 per cent to 65.2 per cent. (As of October 1964, Bryant had risen to 78.6 per cent and Clinton had risen to 71.3 per cent whereas Emerson and Stillman had dropped insignificantly to 75.7 per cent and 65 per cent respectively.) The Jefferson School which in 1962 had a Negro pupil population of 44.9 per cent rose to 52.1 per cent in October 1963 and to 56.6 per cent in October 1964.
In affirming the Commissioner's decision, the State Board of Education stressed the Commissioner's language relating to schools which were almost entirely Negro and to his corrective action with respect to the Washington School. It took the position that the crucial question was not mathematical imbalance but whether the school fell within the Commissioner's test of "completely or almost entirely Negro"; and it concluded that within this test the Emerson, Bryant, Clinton, Stillman and Jefferson schools were free from attack. It expressed the view that racial imbalance was not to be equated with invidious segregation as condemned by the Commissioner and by the State Board itself in Volpe v. The Board of Education of the City of Englewood (decided September 25, 1963). It found that there had been no showing "that the 'imbalance' resulting from the adoption of the 'Sixth Grade Plan'" had deprived the Negro pupils of equal educational opportunities and that its adoption by the local Board and its approval by the Commissioner should be sustained. In support of their appeal from the State Board's decision, the petitioners urge before us that under both federal and state law there was a duty to eliminate racial imbalance beyond the step which was taken by the local Board to correct the situation at the Washington School and which was sustained by the Commissioner and the State Board.
When in Brown v. Board of Education of Topeka, 374 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court struck down segregated schools, it recognized that they generate a feeling of racial inferiority and result in a denial of equal educational opportunities to the Negro children who must attend them. Although such feeling and denial may appear in intensified form when segregation represents official policy, they also appear when segregation in fact, though not official policy, results from long standing housing and economic discrimination and the rigid application of neighborhood school districting. Brown itself did not, of course, deal with the latter or de facto type of segregation and federal judges have differed as to whether that situation gives rise to
an affirmative duty under the Fourteenth Amendment to take suitable action. Compare Bell v. School City of Gary, Indiana, 213 F. Supp. 819 (N.D. Ind. 1963), aff'd 324 F.2d 209 (7 Cir.), cert. denied 377 U.S. 924, 84 S. Ct. 1223, 12 L. Ed. 2 d 216 (1964); Downs v. Board of Education of Kansas City, Kansas, 336 F.2d 988, 998 (10 Cir. 1964), cert. denied 380 U.S. 914, 85 S. Ct. 898, 13 L. Ed. 2 d 800 (1965), with Barksdale v. Springfield School Committee, 237 F. Supp. 543 (D. Mass. 1965); Blocker v. Board of Education of Manhasset, New York, 226 F. Supp. 208 (E.D.N.Y. 1964). See Kaplan, "Segregation Litigation and the Schools -- Part II: The General Northern Problems," 58 Nw. U.L. Rev. 157, 170 (1963); Sedler, supra, 7 St. Louis U.L.J., at p. 250.
In Bell, the court found that there was no official policy of segregation and that the Gary School Board had consistently required students to attend their neighborhood schools without regard to race; on that finding it concluded that the board was under no obligation under the federal constitution to take any steps towards integration of the school population or towards correction of the racial imbalance which existed in the Gary school system. See Kaplan, "Segregation Litigation and the Schools -- Part III: The Gary Litigation," 59 Nw. U.L. Rev. 121 (1964). The decision in Bell may be contrasted with the recent decision in Barksdale. There an action was brought for a declaration that the Springfield School Committee had denied to the plaintiffs their rights under the Fourteenth Amendment by assigning them to racially segregated schools. The court found that there was no deliberate intent on the part of the school authorities to segregate the races, and that such segregation as did exist resulted from rigid adherence to the neighborhood plan of school attendance. But it also found that, although the Negro elementary school population was 17.4 per cent, there were schools with Negro population appreciably more than 50 per cent (e.g., 59 per cent, 62.9 per cent, 75.3 per cent, 89.9 per cent), that the ability of Negro children to obtain equal educational opportunities
in such racially imbalanced schools was impaired, and that the local School Committee was under an affirmative obligation under the Fourteenth Amendment to eliminate racial concentration "to the fullest extent possible" within the framework of effective educational procedures. With reference to the holding in Bell, it had this to say:
"The defendants argue, nevertheless, that there is no constitutional mandate to remedy racial imbalance. Bell v. School City of Gary Indiana, 324 F.2d 209 (7th Cir. 1963). But that is not the question. The question is whether there is a constitutional duty to provide equal educational opportunities for all children within the system. While Brown answered that question affirmatively in the context of coerced segregation, the constitutional fact -- the inadequacy of segregated education -- is the same in this case, and I so find. It is neither just nor sensible to proscribe segregation having its basis in affirmative state action while at the same time failing to provide a remedy for segregation which grows out of discrimination in housing, or other economic or social factors. Education is tax supported and compulsory, and public school educators, therefore, must deal with inadequacies within the educational system as they arise, and it matters not that the inadequacies are not of their making. This is not to imply that the neighborhood school policy per se is unconstitutional, but that it must be abandoned or modified when it results in segregation in fact." 237 F. Supp., at p. 546.
See Fiss, "Racial Imbalance in the Public Schools: The Constitutional Concepts," 78 Harv. L. Rev. 564, 583 (1965).
Whether or not the federal constitution compels action to eliminate or reduce de facto segregation in the public schools, it does not preclude such action by state school authorities in furtherance of state law and state educational policies. See Morean v. Bd. of Ed. Town of Montclair, 42 N.J. 237, 242-244 (1964); Addabbo v. Donovan, supra, 256 N.Y.S. 2 d, at pp. 182-184; cf. Schults v. Bd. of Ed. of Township of Teaneck, 86 N.J. Super. 29 (App. Div. 1964), aff'd 45 N.J. 2 (1965). In a society such as ours, it is not enough that the 3 R's are being taught properly for there are other vital considerations. The children must learn to respect and live with one another in multi-racial and multi-cultural communities and the earlier they do so the better. It is during their formative school years that firm foundations may be
laid for good citizenship and broad participation in the mainstream of affairs. Recognizing this, leading educators stress the democratic and educational advantages of heterogeneous student populations and point to the disadvantages of homogeneous student populations, particularly when they are composed of a racial minority whose separation generates feelings of inferiority. It may well be, as has been suggested, that when current attacks against housing and economic discriminations bear fruition, strict neighborhood school districting will present no problem. But in the meantime the states may not justly deprive the oncoming generation of the educational advantages which are its due, and indeed, as a nation, we cannot afford standing by. It is heartening to note that, without awaiting further Supreme Court pronouncements, some states, including our own, have taken significant legislative or administrative steps towards the elimination or reduction of de facto segregation. See Report of the United States Commission on Civil Rights 1963, pp. 55-62.
The California State Board of Education has adopted regulations designed to avoid attendance areas which "in practical effect" discriminate upon an ethnic basis or tend to establish or maintain segregation on an ethnic basis. These regulations were cited by the California Supreme Court in Jackson v. Pasadena City School District, 59 Cal. 2 d 876, 31 Cal. Rptr. 606, 382 P. 2 d 878 (1963), where a Negro student brought an action seeking a transfer from his predominantly Negro neighborhood school to a predominantly white school. While its actual holding was narrower, the court's opinion clearly recognized that, under state law and policy, the school authorities have an affirmative duty to take steps towards alleviation of racial imbalance in the school system without regard to its origin. Speaking for all members of the court, Chief Justice Gibson said:
"So long as large numbers of Negroes live in segregated areas, school authorities will be confronted with difficult problems in providing Negro children with the kind of education they are entitled to have. Residential segregation is in itself an evil which tends to
frustrate the youth in the area and to cause antisocial attitudes and behavior. Where such segregation exists it is not enough for a school board to refrain from affirmative discriminatory conduct. The harmful influence on the children will be reflected and intensified in the classroom if school attendance is determined on a geographic basis without corrective measures. The right to an equal opportunity for education and the harmful consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause." 382 P. 2 d, at pp. 881-882.
See Note, "California Suggests De Facto School Segregation Must End," 16 Stan. L. Rev. 434 (1964); Note, "Schools and School Districts: Alleviation of Racial ...