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In the Matter of Red Bank Charter School

New Jersey Superior Court, Appellate Division/Amicus

Philip Gallagher/Gibbons, Del Deo, Dolan, Griffinger & Vecchione

The ACLU-NJ filed an amicus brief in this case involving a challenge to the State Department of Education's approval of the expansion of the Red Bank Charter School. New Jersey statutes permit public funding to be used for charter schools. However, the New Jersey State Supreme Court held that there is a "constitutional command" to prevent segregation (including de facto segregation) in our public schools which must be read into the statute. As such, in determining whether or not to grant charter school status or approve expansion, the State Commissioner is required to assess (1) how the charter school will affect the racial balance of the district from where it draws its students; and (2) the economic impact on the district.

While there is apparently nothing overt in the charter school to cause segregation, there is nonetheless a great disparity in racial composition between the charter school and the Red Bank Public School. Nevertheless, the Commissioner agreed to expand the Charter School from just middle school grades to kindergarten through 8th grade. The Red Bank Board of Education has now appealed to the Appellate Division. The charter school argued before the Commissioner that the decrease in white enrollment in the public schools should be blamed on white flight, not on the role of the charter school. They also argued that the reason why a higher percentage of whites attended the charter school is that it draws students from the local private schools, not the public school system. They further argue that, in assessing whether there is segregation, the Commissioner should look at the overall make-up of the town as opposed to the make-up of the public school prior to the charter being granted. We argue that the town cannot take funding away from the public schools in order to create a safe haven within the system for white students for which they (the white families) no longer have to pay themselves. We also agree with the Red Bank Board of Ed that the make-up of the public school provides the appropriate figures for comparison with the charter school. Oral argument is scheduled for February 3, 2004.

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