On certification to the Superior Court, Appellate Division, whose opinion is reported at 333 N.J. Super. 370 (2000).
The opinion of the court was delivered by: Stein, J.
 Argued October 22, 2001
Although the record and briefs material to this appeal are voluminous, the narrow issue certified is based on two decisions by the State Board of Education (State Board), one on November 5, 1997 and the other on October 7, 1998, concerning the steps that should be taken to resolve the longstanding segregation of the student body at Englewood's Dwight Morrow High School (Dwight Morrow). In its November 7, 1997 decision the State Board adopted the Report of the Commissioner of Education (Commissioner) dated February 5, 1997, in which he recommended against regionalization of the Englewood, Englewood Cliffs, and Tenafly school districts as a means of improving the racial balance at Dwight Morrow. The State Board concluded that neither regionalization nor agency adjudication could resolve the segregation problem at Dwight Morrow. Although acknowledging that the protracted litigation involving the three districts had "not ameliorated the racial isolation of the students attending Englewood's public schools," the State Board expressed its intention to pursue a voluntary solution that focused on the development at Dwight Morrow of a magnet school, affiliated with a university, that was designed to attract students from neighboring districts in order to achieve enhanced racial diversification of Dwight Morrow.
In its October 7, 1998 decision, the State Board adopted the recommendation of its Committee on Englewood that the Englewood School District be charged with the initial responsibility for developing an enhanced plan to reduce racial segregation at Dwight Morrow. The Board stated that the new plan was to include a reexamination of a prior magnet school plan entitled "Englewood Achieves" that had been submitted for federal funding, together with other approaches noted in the Committee's report. The plan to be developed by Englewood "must reasonably be expected to reduce the percentage of minorities at Dwight Morrow  over the next five years so as to ultimately achieve a balance in the composite student body." The State Board's decision required the Commissioner to "provide appropriate assistance to [Englewood] in its development of the enhanced plan," mandated that Englewood's plan include benchmarks that would allow the State Board to assess progress on a regular basis, and ordered Englewood to submit its enhanced plan to the Commissioner within two months. In a published opinion, the Appellate Division upheld the State Board's November 5, 1997 and October 7, 1998 decisions. Bd. of Educ. of Englewood Cliffs v. Bd. of Educ. of Englewood, 333 N.J. Super. 370, 382-83 (2000) (Englewood III). On the question of the allocation of responsibility, the Appellate Division observed that although the State Board had imposed on Englewood the initial responsibility for developing a plan to achieve racial balance and educational quality, the Commissioner "bears a heavy responsibility to assist in the development and implementation of a workable plan for Dwight Morrow," and that responsibility "must include assistance in developing the ?funding sources' required to establish magnet and other specialty schools." Id. at 384.
In determining whether the State Board's allocation of responsibility for remedying racial segregation at Dwight Morrow is sustainable, we first must review the factual record and prior adjudications in order to establish a context for resolving that issue. The procedural history of the litigation from 1985 to 1993 is summarized by the Appellate Division in Englewood III:
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. 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. In addition, our opinion stated in dictum that the State Board had the authority to order regionalization in this case[.]
On appeal, the Supreme Court of New Jersey affirmed substantially for the reasons expressed in our opinion. However, the Court expressly stated that it was not deciding whether the State Board or a court could mandate regionalization[.]
The Supreme Court of the United States denied Englewood Cliffs' petition for a writ of certiorari. 510 U.S. 991, 114 S. Ct. 547, 126 L.Ed.2d 449 (1993). [333 N.J. Super. at 373-75 (citations omitted).]
Critical aspects of the evidentiary record were summarized by the Appellate Division in its original decision, Board of Education of Englewood Cliffs v. Board of Education of Englewood, 257 N.J. Super. 413 (1992) (Englewood I), that modified and affirmed the State Board's earlier disposition:
C. The Relationship between the Districts
In October 1965, Cliffs and Englewood executed a 10-year sending-receiving contract to begin in 1967. The agreement essentially obligated Cliffs to send its public high school students to DMHS and required that Englewood maintain DMHS' accreditation and confer with Cliffs "on matters of mutual concern to the High School program." Cliffs was obligated to pay Englewood for the cost of educating its students.
Every year between 1970 and 1976 Cliffs sent approximately 60.0% of its graduating eighth graders, or approximately 60 to 70 students, to DMHS. The remaining Cliffs' eighth graders chose to attend private schools. During these years, the total number of Cliffs' students attending DMHS averaged approximately 245 per year. During the middle 1970s, however, Cliffs became dissatisfied with the sending-receiving relationship. In 1977, rather than renew the relationship and because applicable law made terminations of such relationships subject to the Commissioner's approval, Cliffs petitioned the Commissioner to sever the relationship so that it could explore the establishment of sending-receiving relationships with other districts. Englewood opposed the severance. Cliffs eventually withdrew its petition, apparently because it was unable to support its allegation that DMHS was not providing a good education.
In the late 1970s, newspaper articles emphasizing the negative aspects of DMHS began to appear. These newspaper accounts contributed to the growing public perception that DMHS had serious problems and to the declining enrollment of Cliffs' students at DMHS. During this period, the question of severance became a political issue; at one point all of the candidates for Cliffs' school board were in favor of severance, and the slate most committed to severance ultimately prevailed in the 1985 election.
Between 1974 and 1982, Cliffs affirmatively encouraged its high school-aged students to attend DMHS. For example, during 1980-1981, "cottage parties" were held between Cliffs and Englewood, at which board members and teachers from DMHS were available to answer questions about the school; however, the program ceased after one year, and by 1982 Cliffs stopped encouraging its students to attend DMHS altogether.
Before 1982, THS was the receiving school for students from Alpine, a wealthy community on Tenafly's northeastern border. Around 1982, Tenafly's superintendent reported to Tenafly that, in an informal discussion with Dr. Harold France, Superintendent of Cliffs' schools from 1973 to 1986, Dr. France had said that it would be "most interesting" if and when Tenafly decided to admit non-resident students on a tuition basis, i.e., admission based on individual tuition agreements with parents outside the district as opposed to a sending-receiving agreement with another district. In 1982-1983, Tenafly instituted a program to admit non-resident students to its public schools, including THS, on a tuition basis. When the program was adopted by Tenafly, Cliffs began providing, upon request, written instructions to the parents of Cliffs' students as to how to apply to THS for admission on a tuition basis, although it did not provide such instructions for any other school.
By 1983-1984 Cliffs had amassed grievances against DMHS as follows: declining attendance of Cliffs' students at DMHS; the belief that DMHS was no longer an effective school; Englewood's plan to begin sending its eighth graders to DMHS, thereby further alienating Cliffs' DMHS students (because they would be at DMHS one year less than Englewood's students); and Englewood's failure to have discussed with Cliffs, in advance, the policy of sending eighth graders to DMHS. In November 1985, Cliffs voted to enter into a sending-receiving relationship with Tenafly; Tenafly reciprocated. Until such time as Cliffs' sending-receiving relationship with Englewood was terminated, however, the THS policy was to accept Cliffs' and other municipalities' students on a tuition basis. The primary factors which THS considered under its private admission program were the academic, disciplinary and attendance records of the applicants. Tuition for 1987-1988 was approximately $5,480.
From the inception of the THS private tuition program through 1986, 59.3% of its private students came from Cliffs and 22.9% from Englewood. In 1986, 76 students came from Cliffs and 16 from Englewood.
D. Racial Composition and Enrollment Trends at DMHS and THS
In general, public school enrollment was down in all three districts and this trend seemed likely to continue. Since 1977, enrollment of Cliffs' students at DMHS dropped dramatically and at a much faster rate than the general decline in the school-aged population. Having averaged approximately 60.0% throughout most of the 1970s, the number of graduating Cliffs' eighth graders attending DMHS fell from a high of 69.0% in 1980-1981 to a low of 4.4% in 1987-1988, or 2.6% of the total DMHS enrollment. In 1982-1983, 1,128 students attended DMHS, of whom only 119 were from Cliffs. In that year the DMHS student body was 31.5% white, 55.5% black, 10.3% Hispanic and 2.7% Asian. In 1987-1988, 799 students made up the DMHS student body, of whom only 21 were from Cliffs. During that year, the racial composition of the DMHS student body had changed to 11.8% white, 66.2% black, 17.8% Hispanic and 3.9% Asian.
After Tenafly's non-resident private admission program began in 1982, the number of Cliffs' students attending THS rose annually while the number of Cliffs' students attending DMHS continued to drop. Table 1 sets forth the enrollment trend between 1982 and 1988:
Cliffs Students Cliffs Students
School Terms Attending DMHS Attending THS