Do charter schools increase segregation?
Under state regulations, the New Jersey education department is required to answer that question. The agency’s findings could have far-reaching implications, including potentially affecting the outcome of a historic court case centered on New Jersey school segregation.
So what has the department found? It won’t say.
Last year, when the Education Law Center, a Newark-based advocacy group, requested to see records of the mandated analysis, the education department said no such records exist. The group responded by suing the department to gain access to the analysis, a move that led the state attorney general to make a surprising argument: The state doesn’t have to reveal its segregation findings — or even put them in writing.
Making his case in a legal brief last month, New Jersey’s attorney general quoted the education department’s comments about the issue from several years ago.
“The Department disagrees [that] the annual assessment of segregative effect must be reduced to writing,” the department wrote in 2014, when the Education Law Center first proposed making the segregation analyzes public. In most cases, the agency added, writing down those assessments would not be “cost, or resource, effective.”
Now, several advocacy groups, including the New Jersey NAACP and the Latino Action Network, are suing the state to compel it to produce and publish records of its assessments of whether charter schools exacerbate the segregation of students by race, ability, or English-speaking skills in traditional public schools. Written records are crucial for monitoring the state’s oversight of charter schools, said David Sciarra, executive director of the Education Law Center, which is representing the plaintiffs in the lawsuit that was filed in October.
“Without that, there’s no way to know if the commissioner even does it,” he said, referring to the segregation assessment. “And, more importantly, what the findings are.”
Charter schools often have been accused of adding to segregation due to the racial imbalance found in many of the schools, which are publicly funded and independently operated. In New Jersey, 86% of charter school students were Black or Hispanic and only 8% were white in the 2016-17 school year, compared with 45% of students statewide who were white, according to one analysis.
The question of what causes New Jersey to have some of the nation’s most racially segregated schools is at the heart of another lawsuit, which a state Superior Court judge will soon weigh in on. In that case, which the Education Law Center is not involved with, advocates allege that the state’s enrollment policies and district boundaries are the main drivers of school segregation — but that charter schools make the situation worse. The lawsuit says the racial imbalance in many schools violates New Jersey’s constitution, which explicitly forbids school segregation.
The state should be able to answer the question of whether charter schools worsen segregation.
New Jersey regulations require the department to annually assess the “segregative effect” that each charter school has on neighboring traditional schools by enrolling a portion of local students. Last year, the state Supreme Court added that the department must also consider how opening or expanding a charter school would affect the racial makeup of the local district and its share of students with disabilities and English learners.
The court’s ruling stemmed from an earlier Education Law Center lawsuit challenging former Education Commissioner David Hespe’s 2016 move to allow several Newark charter schools to enroll thousands of additional students. The lawsuit alleged that Hespe had not properly considered how the expansion could increase segregation in the Newark school district.
While the court declined to reverse the enrollment expansion, it called the commissioner’s decision “deficient” because it “did not include any reference to the schools’ potential impact on racial segregation in the district schools, much less the careful consideration of that issue that Englewood requires,” Justice Anne Patterson wrote in the court’s June 2021 ruling, citing a previous case.
But even after that ruling, the education department has not provided evidence that it gives “careful consideration” to each charter school’s effect on segregation.
In explaining her recent decisions to allow two Newark charter schools to continue operating but not expand, acting Education Commissioner Angelica Allen-McMillian made no mention of segregation, according to summaries of the decisions that the department provided to Chalkbeat. (The department said the summary of a third decision is not yet complete, and a spokesperson said the agency cannot comment on pending litigation.)
The state says there is a simple reason why the commissioner said nothing about segregation: She doesn’t have to.
In his Feb. 4 brief in response to the Education Law Center lawsuit, acting New Jersey Attorney General Andrew Bruck argued that a “plain reading” of the charter school regulations shows there is “no requirement that annual assessments of student composition of charter schools and their segregative effect be publicly reported or formalized” in writing.
To be clear, he added, the department does conduct the required assessments — it just doesn’t share them.
In January, the New Jersey Public Charter Schools Association and a charter school parent, identified only as A.S., filed a motion to intervene in the case. They argue that state agencies make many decisions that aren’t captured in writing, and that the advocacy groups are only seeking written reports on charter school segregation to use as fodder for lawsuits.
“What they really want is to be able to use each annual report as a springboard for litigation,” said Thomas Johnston, the charter association’s attorney in the case.
But in a reply brief, the Education Law Center dismissed that allegation.
The plaintiffs’ “sole interest in bringing this action is to ensure that the Commissioner fulfills her regulatory responsibility to conduct the assessments as a means to ensure charter schools do not have a segregative impact on their district of residence,” wrote Education Law Center Senior Attorney Elizabeth Athos.
One of the plaintiffs in the lawsuit is the SPAN Parent Advocacy Network, which supports families of New Jersey children with disabilities. Diana Autin, the group’s executive director, said it got involved in the case due to its longstanding concern that charter schools do not enroll a fair share of students with disabilities, especially more serious disabilities that require intensive support services.
Of the roughly 60,000 students in New Jersey charter schools, 10% have disabilities and 6% are still learning English, according to the charter school association. By contrast, 17.4% of public school students statewide have disabilities and 7.4% are learning English, according to the most recent state data from 2019-20.
“I have no idea whether the commissioner is looking at that data,” Autin said. “I just know I don’t see any evidence of steps being taken to address it.”
Patrick Wall is a senior reporter for Chalkbeat Newark, covering public education in the city and across New Jersey. Contact Patrick at email@example.com.