For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
The appellants sought to have the Commissioner of Education take suitable steps towards preventing Morris Township from withdrawing its students from Morristown High School and towards effectuating a merger of the Morris Township and Morristown school systems. The Commissioner was of the opinion that, even though such steps were highly desirable from an educational standpoint and to avoid racial imbalance, he lacked legal authority to take them and accordingly he dismissed the individual appellants' petition and the appellant Morristown's cross-petition. The appellants filed notice of appeal to the Appellate Division and we certified before argument there. 58 N.J. 1 (1971).
Prior to 1865 Morristown and Morris Township were a single municipal unit. In that year Morristown received permission to incorporate as a separate entity and arbitrary boundary lines were drawn between the Township (Morris) and the Town (Morristown). Despite their official separation, the Town and the Township have remained so interrelated that they may realistically be viewed as a single community, probably a unique one in our State. The Town is
a compact urban municipality of 2.9 square miles and is completely encircled by the Township of 15.7 square miles. The boundary lines between the Town and the Township do not adhere to any natural or physical features but cut indiscriminately across streets and neighborhoods. All of the main roads radiate into the Township from the Green located in the center of the Town and it is impracticable to go from most Township areas to other Township areas without going through the Town itself.
The Town is the social and commercial center of the community whereas the Township is primarily residential with considerable undeveloped area for further residential development. The Town has many retail stores and other commercial establishments surrounding its Green while the Township has only a few retail outlets located on its main roads. The Township has no business center or so-called "downtown" area but the Town's substantial shopping center serves in that aspect for both the Township and the Town. Most of the associations, clubs, social services and welfare organizations serving the residents of both the Town and the Township are located within the Town and, as members of the aforementioned organizations, the Town and Township residents are routinely together at both work and play. The Morristown Green is a common meeting place for young people from both the Town and the Township; day care centers and park and playground facilities in the Town are used by the residents of both the Town and the Township; and little leagues and the like generally involve Town and Township teammates who play on both Town and Township fields.
There is also considerable interdependency in municipal public services. Thus the Town's Water Department supplies water to most of the Township residents; sewer service is rendered by the Town to some parts of the Township; Town and Township Fire and Police Departments regularly assist each other; and the Town and Township jointly operate the Public Library located within the Town. There
are socio-economic and population differences between the Town and the Township but despite these differences the record before us clearly establishes that, as set forth in the Candeub report, the Town and Township "are integrally and uniquely related to one another" and "constitute a single community." The Candeub report was prepared for the Town by an established consulting community planning firm. The hearing examiner, whose findings were adopted and incorporated by the Commissioner of Education in his decision, found that the Morristown-Morris community was essentially as described in the Candeub report; he noted further that the Township did "not dispute the interrelatedness between itself and the Town" though it contended that statutorily and technically the Town and Township are "separate entities for school purposes."
The Township has a population of about 20,000 including less than 5% blacks. The Town has a population of almost 18,000 including about 25% blacks. There was testimony that within this decade the Town's population of blacks would probably increase to between 44% and 48%. Because of employment considerations and other economic factors, black families generally locate in the Town rather than the Township. Town sales of single family homes average between $22,000 and $24,000 whereas the homes in the Township average between $40,000 and $60,000. Though the Town's school population is leveling off, its black school population is increasing steadily. As of 1969 when the hearings were held below, the Town's school enrollment was 2,823 and is not expected to exceed 3,200 by 1980 though its black school population is expected to increase from 39% to over 65% by that time. Its elementary schools are 43% black but are expected to be 70% black by 1980. On the other hand, the Township's public school enrollment of 4,172 will probably reach 6,700 by 1980 and is expected to remain overwhelmingly white. About 5% of the Township students are black and there was testimony that this percentage is likely to decrease rather than increase by 1980.
Most of the Town and Township schools are located near the Town boundary line and the hearing examiner made pointed references and findings to their gross disparities in racial composition. Thus he noted that the Town's Thomas Jefferson School with its 48% black enrollment was "very close to the Township's Woodland School with zero percent black enrollment"; that "geographic proximity" also invited attention to George Washington School (Town, 45%) and Normandy Park School (Township, 9%) and to Lafayette Junior High School (Town, 42%) and Alfred Vail School (Township, 10%); and he ponited out that the Alexander Hamilton School (Town, 35%) was "equidistant" between Sussex Avenue School (Township, 5%) and Hillcrest School (Township, less than 1%).
So far as Morristown High School is concerned, the present black student population is about 14%. But its student body now includes residents of Morris Township and the neighboring municipalities, Borough of Morris Plains and Harding Township. The projections introduced by the Town indicate that if the Morris Township students are withdrawn, the percentage of blacks in Morristown High School will double immediately, and will probably reach 35% by 1980; they indicate further that if the Morris Plains and Harding students are also withdrawn the black enrollment at Morristown High School will probably reach 56% by 1980. The hearing examiner accepted the Town's projections since they appeared to him "essentially reasonable" and no "real projections in contradiction" had been offered.
For over a hundred years the Town and Township have had a sending-receiving relationship under which the Township sends Township students to Morristown High School. There was a short interruption which continued only through 1958 and 1959. As of 1962 the Town and Township executed a formal 10-year sending-receiving contract and the Township has since been regularly sending its 10th, 11th, and 12th grade students to Morristown High School. The contract contains a provision to the effect that after the ten-year
term the parties shall be free to make whatever arrangements they mutually agree upon "subject to the provisions of law and the approval of the Commissioner of Education." Incidentally, the residents of Morris Plains and Harding now at Morristown High School include grade 9 through 12 students who attend under designation without formal contract.*fn*
Morristown High School is an excellent educational institution and offers diversified and comprehensive courses of instruction including seven full vocational programs and an equal number of advanced college placement courses in English, social studies, science and language. It has a total of 150 courses in contrast to the State median of 80-89 courses. It operates with an eight-period day, staggering arrival and departure times. It accommodates 1950 students and by using a nine-period day can accommodate 2450 students; it is anticipated that the High School population will not reach this latter figure until 1974. If the Township is permitted to withdraw its students, Morristown High School will have remaining about 1300 students as of 1974 and if, in addition, Morris Plains and Harding are permitted to change their designation, the High School will then have only about 800 students. The hearing examiner found that "to be left with only Harding and Morris Plains -- and especially to be left alone -- would impose the following disadvantages:
1. By dint of reduced size alone Morristown High School could not continue to provide the same scope and variety of courses.
2. Withdrawal of Township students would mean withdrawal of a significant number of educationally highly-motivated, capable students, and this is likely to have an adverse effect upon the performance and motivation of the remaining Town students.
3. The remaining students would be, as a group, from lower socioeconomic backgrounds and be less oriented toward academic achievement, with the result that the program structure will have to be drastically re-oriented.
4. The percentage of black students in the High School will be approximately as stated above: with Harding and Morris Plains, 27% in 1974 and 35% in 1980; without Harding and Morris Plains, 44% in 1974 and 56% in 1980.
5. Morristown High School will not be able to maintain its place in the scale of excellence in terms of breadth and quality of program.
6. It is probable that, as a consequence, it will have more difficulty in keeping and attracting the same high quality faculty.
7. With the change in program and reputation and the loss in tuition revenue, it is possible that the Town will not be as able or as willing to support financially its school system as it currently is.
8. The Township students will be denied the privilege of an integrated education.
9. The sudden alteration in the racial composition of the High School might aggravate the tendency of potential white buyers to avoid purchasing houses in Morristown.
On the issue of total K-12 merger between the Town and Township, the examiner received considerable testimony during the hearings before him. In the main it most persuasively supported the high educational desirability and economic feasibility of such a merger. The examiner, after pointing to the sharp contrast between the Town's K-12 black enrollment of 39% (projected to over 65% by 1980) and the Township's white enrollment of 95%, stressed that "the close proximity of the Town and Township elementary schools makes the disparity easily visible to and easily felt by the students of the two districts" and that "the community with which Morristown residents, including students, identify extends beyond the bounds of the Town and encompasses the Township." He firmly set forth his view that if there is a failure to merge "the black student population of Morristown -- particularly at the elementary school level
-- will suffer the same harmful effects that the Commissioner of Education has worked so hard to eliminate within single school districts throughout the State." And though he did not deal with it in explicit terms there is little doubt that he subscribed to the Town's testimony as to the advantages of total merger, set forth as follows in the report submitted to the Town ...