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Students and Parents Bring State Constitutional Challenges to Racial Segregation in Schools

Seventy years after Brown v. Board of Education, state constitutions may be the best path to desegregation.


As the U.S. Supreme Court’s decision declaring school segregation unconstitutional — Brown v. Board of Education— turns 70, schools across the United States remain highly segregated. Cases in New Jersey and Minnesota aim to change that by bringing state constitutional challenges to racial imbalances in public schools.

Every state constitution contains a provision guaranteeing public education. The language of these clauses varies from state to state. Some, like New Jersey, explicitly bar racially segregated schools in the state constitution. These guarantees offer a potential path forward for parents and students concerned about the impacts of school segregation. 

Indeed, almost 20 years ago, the New Jersey Supreme Court ruled that de facto segregation violated the state constitution. Now, a constitutional challenge to public school segregation aims to build on that precedent. In Latino Action Network v. State of New Jersey, Black, Latino, and other students of color are challenging New Jersey’s law mandating that students be assigned to schools based on residential addresses. This system has resulted in schools that, from a statewide perspective, are among the most racially segregated in the country. The plaintiffs allege that segregation in the state’s public schools violates the New Jersey Constitution’s guarantee of equal treatment, its requirement that the state provide “a thorough and efficient system of free public schools,” and its provision prohibiting racial segregation of public schools.

After years of legal maneuvering, as well as expert testimony, both sides filed pre-trial motions for summary judgment last year. The plaintiffs asked for a ruling that New Jersey schools are unconstitutionally segregated statewide, leaving remedies to be crafted at a later stage of the litigation. Defendants asked for a complete victory, arguing that the lawsuit should be dismissed in its entirety. Both sides, it turned out, asked for too much.

Last fall, the trial judge entered a 93-page order denying both motions. The judge denied the plaintiffs’ motion because they had not demonstrated that every New Jersey school district was unconstitutionally segregated — the parties had agreed that about 50 percent of Black and Latino students attended schools that were more than 90 percent nonwhite and that about 65 percent attended schools that were more than 75 percent nonwhite. The defendants’ motion failed because even though plaintiffs did not prove all school districts were segregated, the data showed that many were unconstitutionally segregated.

“The problems of racially isolated districts persist,” the judge wrote. He also noted that the plaintiffs had “adequately allege[d]” that the defendants had, “as a self-evident proposition, failed to take sufficient steps to remedy that segregation.”

The litigation is now at a standstill as the parties battle over whether the Newark-based organization Education Law Center should be allowed to join as co-counsel for the plaintiffs. The court held oral arguments on the question on January 22. 

Meanwhile, late last year, a state constitutional challenge to public school segregation landed before the Minnesota Supreme Court. In Cruz-Guzman v. State of Minnesota, the parents of seven public school students sued Minnesota, the department and commissioner of education, and the state legislature, arguing that racial segregation in schools violated their children’s right to an adequate education guaranteed by the state constitution. The court held that racial segregation was not a per se violation of the Minnesota Constitution’s Education Clause. However, the court said, the parents could prevail if they established that racial segregation was a substantial factor in causing their children to receive an inadequate education. The court added that the parents need not establish that state action caused the segregation. It remanded the case to the trial court, where the claims are moving forward. 

Both cases have been winding through the courts for years — the New Jersey case was filed in 2018 and the Minnesota case in 2015. They are not likely to reach final resolutions any time soon. But no matter how long they take, these cases will have a major impact on public education in their respective states, and they could serve as models for parents and students to tackle segregation in schools across the country.

Professor Robert F. Williams is the Distinguished Professor of Law Emeritus at the Rutgers University School of Law. He is an expert in state constitutional law and the director of the Center for State Constitutional Studies at Rutgers. 

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and senior counsel in the Judiciary Program at the Brennan Center for Justice. 

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