Before Judges Skillman, D'Annunzio and Newman.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from New Jersey State Board of Education.
This case was commenced in 1985 when the Board of Education of the Borough of Englewood Cliffs (Englewood Cliffs) filed a petition with the Commissioner of Education (Commissioner) seeking to sever its long- standing sending-receiving relationship with the Board of Education of the City of Englewood (Englewood), under which high school students residing in Englewood Cliffs are educated at Dwight Morrow High School (Dwight Morrow) in Englewood. Englewood opposed the petition and filed a cross petition seeking to enjoin the Board of Education of the Borough of Tenafly (Tenafly) from admitting tuition-paying high school students from Englewood Cliffs and Englewood. In addition, Englewood asked the Commissioner to require the three districts to form a single regional district at the high school level.
The petitions were referred to the Office of Administrative Law, and an Administrative Law Judge (ALJ) conducted a ninety-nine day hearing. The ALJ recommended the denial of Englewood Cliffs' petition to sever the sending-receiving relationship with Englewood. The ALJ also recommended granting Englewood's cross-petition to enjoin Tenafly from admitting students from Englewood Cliffs and Englewood on a tuition basis. In addition, the ALJ recommended the denial of Englewood's petition to compel Englewood Cliffs and Tenafly to join with Englewood in forming a regional high school district.
The Commissioner accepted the ALJ's factual findings and recommendations. The State Board of Education (State Board) affirmed the Commissioner's decision, but made several modifications. Although it agreed with the Commissioner's denial of Englewood's petition for the establishment of a regional high school district, it directed Englewood Cliffs and Englewood to develop a plan to encourage students residing in their communities to attend Dwight Morrow. The State Board also ordered the Commissioner to monitor implementation of the plan and present an annual report regarding the impact of the plan upon the racial composition of Dwight Morrow. In addition, the State Board enjoined not only Tenafly but also all other school districts in the State from admitting students residing in Englewood and Englewood Cliffs on a tuition basis.
Englewood Cliffs filed an appeal to this court from the State Board's denial of its petition to sever the sending-receiving relationship with Englewood, and Englewood filed a cross appeal from the State Board's refusal to order the establishment of a regional high school district.
During the pendency of the appeal, as the number of students from Englewood Cliffs attending Dwight Morrow continued to decline, the State Board adopted the Commissioner's recommendation that a study be undertaken to explore the potential for establishing a regional school district. Englewood Cliffs and Tenafly appealed from the State Board's resolution approving this recommendation.
We affirmed the State Board's denial of Englewood Cliff's petition to withdraw from the sending-receiving relationship with Englewood. Board of Educ. of Englewood Cliffs v. Board of Educ. of Englewood, 257 N.J. Super. 413, 457 (App. Div. 1992). We also affirmed the State Board's orders enjoining any other school district from admitting students from Englewood and Englewood Cliffs on a tuition basis and authorizing a regionalization study. Id. at 474. In addition, our opinion stated in dictum that the State Board had the authority to order regionalization in this case:
The expansive general principle enunciated in Jenkins [v. Township of Morris Sch. Dist., 58 N.J. 483 (1971)] was that cross-district regionalization is an available arrow in the Commissioner's desegregation quiver. . . .
We think the correct interpretation is that cross-district regionalization is available even where a single community does not exist. The facts in Jenkins were happenstance which made the ultimate outcome of that case obvious but did not constitute a requirement for the application of the fundamental case doctrine. [Id. at 476-77.]
On appeal, the Supreme Court of New Jersey affirmed substantially for the reasons expressed in our opinion. 132 N.J. 327 (1993). However, the Court expressly stated that it was not deciding whether the State Board or a court could mandate regionalization:
In reaching that conclusion [about the State Board's having authority to direct a regionalization study] we find it unnecessary to consider whether the State Board of Education has the authority to require regionalization in this case or whether a court may require regionalization as a judicial remedy. We neither express nor imply any position or opinion on the regionalization issue itself, and specifically emphasize that our affirmance of the authority of the State Board of Education to undertake such a regionalization study must not be taken ...