This brief addresses the constitutional import of the New Jersey Charter School Program Act’s race-conscious student enrollment mandates. The New Jersey Charter School Program Act provides that charter schools must not discriminate on any “basis that would be illegal if used by a school district.”
[1] It also provides that charter schools must “be open to all students on a space available basis.”
[2] If the school gets more applicants than the spaces available, the charter school must use a random selection process to determine admittees.
[3] Despite these non-discrimination and space-available admission requirements, the law allows schools to exercise preferential treatment in admissions: a charter school can restrict admission to specific grade levels or to the school’s subject areas of concentration.
[4] These subject areas include the arts, sciences or mathematics.
[5]Additionally, despite the non-discrimination requirement, the Charter School Program Act mandates certain discriminatory practices which are not readily subject to legal challenges. For instance, the Charter School Program Act dictates that students in the resident district of the charter school must be given enrollment preference over other prospective students.
[6] If more resident students apply than space available, these students will then be subjected to the random-selection process as well.
[7]Another preference in the law deals with the enrollment of continuing students. The Charter School Program Act provides that, as long as a charter school has the requisite grade level at the school, it must give enrollment preference to students who attended the school in the immediate prior school year.
[8]The Charter School Program Act also authorizes but does not require enrollment discrimination on the basis of family ties. In particular, the law states that “[a] charter school may give enrollment priority to a sibling of a student enrolled in the charter school.”
[9] Charter schools are also authorized but not required to craft and incorporate into their charter, criteria that is reasonable for evaluating prospective students.
[10] However, such criteria must not discriminate against prospective students because of their intellect, handicap status, athleticism, English language proficiency, aptitude measures, achievement measures, or other ground that would be legally invalid for a school district to use.
[11]Notwithstanding the non-discrimination and space-available admission requirements, the Charter School Program Act requires charter schools to incorporate race in their enrollment decisions in order to ensure that a cross section of the community is represented in the school’s enrollment. Specifically, the law provides:
The admission policy of the charter school shall, to the maximum extent practicable, seek the enrollment of a cross section of the community’s school age population including racial and academic factors.
[12]This provision is important because of the tendency of charter schools to become one-race charter schools. There are also many charter schools in heavily-minority districts furthering segregation. This makes it important to ensure that diversity rather than segregation persists in those districts.
This brief examines the constitutionality of this and other race-conscious mandates of the New Jersey Charter School Program Act under the United States Equal Protection Clause. It also analyzes the mandates under the New Jersey Equal Protection constitutional provision.
Race-Conscious Mandates in the New Jersey Charter School Program Act
As noted earlier, even though the Charter School Program Act prohibits discrimination on any ground that would be legally invalid if employed by school districts, it also provides that:
The admission policy of the charter school shall, to the maximum extent practicable, seek the enrollment of a cross section of the community’s school age population including racial and academic factors.
[13]The language of this mandate suggests that it is a race-conscious provision rather than a racial quota. It is evident that it is not a quota since it does not require reservation of specific number of seats for a particular race(s).
[14]There are other race-conscious mandates in the state laws governing charter schools. For instance, the New Jersey Department of Education regulations provide that:
Prior to the granting of the charter, the Commissioner shall assess the student composition of a charter school and the segregative effect that the loss of the students may have on its district of residence.
[15]Further, the regulations state that:
On an annual basis, the Commissioner shall assess the student composition of a charter school and the segregative effect that the loss of the students may have on its district of residence.
[16]If the Commissioner finds that the charter school has segregative effect, the Commissioner can impose a remedy.
[17] According to the Superior Court of New Jersey Appellate Division, if a charter school has already been approved, a school district must wait until the school actually has a segregative effect on the district before seeking judicial or administrative remedial action for the segregative effect.
[18]The New Jersey Department of Education regulations require that charter schools seeking to be regional schools include in their application a “plan to ensure the enrollment of a cross section of the school-age population of the region of residence, including racial and academic factors.”
[19]The regulations empower the commissioner to deny or grant charter renewals based on the “annual assessments of student composition of the charter school.”
[20] The regulations also provide that:
No later than January 15 of subsequent school years [after the initial recruitment period for a charter school], a charter school shall submit to the Commissioner the number of students by grade level, gender and race/ethnicity from each district selected for enrollment from its initial recruitment period for the following school year.
[21]What is evident from the above provisions is that New Jersey places a premium on the racial composition of its charter schools.
The United States Equal Protection Clause and New Jersey’s Charter School Laws’ Race-Consciousness
The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides:
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
[22]The Equal Protection Clause is designed to protect people from discrimination on the basis of various characteristics including race.
The scope of the Equal Protection Clause with respect to voluntary race-conscious mandates was muddled for many years because the United States remained silent on the constitutionality of such mandates. Unlike in desegregation cases which seek to remedy legally-sanctioned segregation,
[23]race-conscious cases involve voluntary efforts to promote diversity. In 2007, in Parents Involved in Community Schools v. Seattle School District No. 1,
[24] the United Supreme Court finally ruled on the constitutionality of race-conscious measures. Even though the
Parents Involved case involved race-conscious
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