The RBCS and the Commissioner have done nothing to stop the widening demographic disparity of the two publicly funded school systems in Red Bank, which is now the most segregated school district in the state of New Jersey
The laws against school segregation are very clear. Article 1, Section 5 of the New Jersey Constitution guarantees that no person shall be segregated in public schools because of race, color, ancestry or national origin. The New Jersey Constitution also requires that the Commissioner “take measures to prevent racial segregation in the public schools.” And the New Jersey Supreme Court has held that the Commissioner has broad power and real responsibility to effect racial integration in public schools.
This extends to charter schools as well. The Charter School Program Act of 1995 (“the Act”) specifically mandates that charter schools “seek the enrollment of a cross section of the community’s school age population including racial and academic factors.” It also prohibits charter schools from discriminating in the admissions process. And to ensure that segregation does not develop during the course of a charter school’s operations, the Act requires the Commissioner to annually “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.” The Act goes one step further, requiring the Commissioner to conduct a comprehensive review when charter schools request a renewal of their charters every five years to ensure that the charter school’s continued operation will not exacerbate racial segregation. So from the initial application through the entire course of a charter school’s operations, the Commissioner is charged with evaluating the segregative impact that charter schools have on their host school districts.
Despite all of these mandates, there is no question that the RBCS is causing segregation in the Borough of Red Bank. And the RBCS, the Commissioner (through various gubernatorial administrations), and the New Jersey Department of Education (“NJ DOE”) have done nothing to stop it.
For proof, look no further than the NJ DOE’s own enrollment numbers for the 2015-16 school year (the most recent data available). As the following chart illustrates, a vast demographic disparity exists between the RBCS and the Red Bank Borough Public Schools among white, Hispanic, LEP (“Language English Proficient,” or English-language learners), and poor children (as measured by the number of children who receive free-and-reduced lunch). Because of the RBCS, the Borough of Red Bank has the most segregated school district in the state of New Jersey.
RBCS demographics do not reflect the school-aged population of Red Bank
The RBCS has insisted that as required by the Act, its demographics reflect the school-aged population of its host district. Most recently, the RBCS asserted this in its expansion amendment request that it submitted to the Commissioner in December 2015. In that request, the RBCS cited U.S. Census Data from 2006 - 2010. There are two problems with this. First, the Census data is old. In fact, it’s not even the most recent Census data available, and the demographics of Red Bank have shifted greatly in recent years. Since the 2009-10 school year through the 2015-16 school year, the overall population of the Red Bank Borough Public Schools has grown 30%, with a 61% increase in LEP students—nearly all of whom speak Spanish as a first language—and a 62% increase in children who receive free-and-reduced lunch.
In addition, the U.S. Census only provides data on children who are under the age of 18—meaning it includes babies, toddlers and high school students, not just the school-aged children that attend the RBCS (which educates children from preK through 8th grade) and Red Bank Borough Public Schools (which educate children from preschool to 8th grade). A more accurate measurement of the school-aged population of Red Bank comes from the Red Bank Borough Public School District, which is responsible for providing school transportation for nearly all children residing in the district. As part of its response to the December 2015 RBCS expansion proposal, the District calculated the demographics of the school-aged population from its records. And that calculation clearly shows that the Red Bank Borough Public Schools better reflect the demographics of the school-aged children of Red Bank—and further demonstrates the segregation caused by the RBCS.
At its roots: RBCS was formed to prevent white flight
While charter schools were created to provide an alternative publicly funded education, the RBCS had another goal in mind when it was founded nearly two decades ago. In the words of RBCS Board of Trustees Vice President Roger Foss, the RBCS was formed in 1998 to “mitigate the effect of white flight.”
Throughout its 18-year history, the Board of Education for the Red Bank Borough District Schools (“the Board”) has raised its concerns about the segregation to the Commissioner, and it even took legal action in an attempt to reverse it—all to no avail. Prior to the granting of the RBCS’s initial charter, the Board requested that the Commissioner conduct a hearing to consider the adverse racial impact the RBCS would have on the District Schools. The Commissioner rejected the Board’s request. The Board then appealed to the State Board of Education, which found the Board’s arguments speculative given that there was no actual enrollment at that time. The State Board of Education, however, instructed the Commissioner to review the racial composition of the RBCS’s student population before approving the charter. There is no evidence that the Commissioner ever conducted the review.
The RBCS opened in 1998, initially serving about 80 students in the fourth through eighth grades. On October 1, 2001, the RBCS submitted an application with the Commissioner to renew its charter with a request to expand by adding kindergarten through third grades, for a total enrollment of 162 students. The Board opposed the expansion, arguing that the RBCS was creating a severe segregative effect on the District Schools. The Board presented the Commissioner with evidence of this and requested that the Commissioner conduct a hearing prior to taking any action on the application. The Commissioner once again denied the hearing request and granted the renewal application without ever considering the segregation issue. The State Board of Education then affirmed that decision, and the Board appealed to the New Jersey Appellate Division. The court affirmed in part and remanded in part, directing the Commissioner to conduct a hearing to determine whether the lottery, waiting list, sibling preference, withdrawal policy, and other practices of the RBCS were adversely affecting racial/ethnic balance of the host district. The court further ordered that should the Commissioner find merit in the Board’s claims, he must “develop an appropriate remedy, which properly balances our strong policy in favor of non-segregated schools with our policy of fostering the development of effective charter schools.” 
Ultimately, the Board and the RBCS entered into a Consent Order on March 20, 2007, in which the RBCS agreed to “use its best efforts to assure that the gender, race/ethnicity, economic status and limited English proficient percentages of students attending the [Red Bank] Charter School equate as closely as practicable with the gender, race/ethnicity, economic status and limited English proficient percentages of students residing in the Borough of Red Bank.” In addition, the RBCS agreed that “to the greatest extent possible” it would “seek to recruit students by grade level, gender, race/ethnicity and economic status to be in general conformity with the students residing in the Borough of Red Bank,” and that starting with the lottery for the 2007-08 school year, the RBCS “shall use its best efforts to assure that the applicants entered into the lottery are in the same proportions of Caucasian, African-American and Hispanic Limited English Proficient students as reside in the Borough of Red Bank.”
However, the RBCS has ignored virtually all provisions of the Consent Order, and the demographic disparity among white, Hispanic, LEP, and poor students has only accelerated since the Consent Order was signed in March of 2007.
Segregation escalates despite Consent Order
Starting from 2007-08 school year, the first school year after the Consent Order was signed, through the 2015-16 school year, the overall population of the Red Bank Borough Public Schools increased by 413 students (+49%), with huge growth among Hispanics (+92%), LEP/English-language learners (+140%), and children who receive free-and-reduced lunch (+174%). During that same time, the RBCS also grew by 26% to a total of 200 students, as it expanded its class sizes from 18 to 20 and added a full-day pre-kindergarten. And yet as seen in the following charts, enrollment trends at the RBCS are dramatically different from those at the Red Bank Borough Public Schools. For example, while the number and percentage of white students have fallen at the Red Bank Public schools, the number and percentage of whites have grown at the RBCS. In fact, at the start of the 2015-16 school year, there were 14 more white children at the RBCS, a school of 200 students, than all of Red Bank Borough Public Schools, which had 1,255 students.
Enrollment trends among Hispanics and LEP students at the RBCS are even more remarkable. As stated previously, the large growth among LEP students at the Red Bank Borough Public Schools was driven by an influx of Spanish-speaking families who moved into the borough in recent years. As a result, from 2007-08 to 2015-16, the number of Hispanic students at the Red Bank Public Schools nearly doubled, from 530 to 1,019 students, while the number of LEP students more than doubled, from 200 to 480. During that time, the RBCS has been successful in recruiting more students who identify as Hispanic into its lottery and ultimately into its school. However, the ranks of LEP/English language learners at the RBCS actually fell—from 21 students when the Consent Order was signed in 2007 to just seven students, or 4% of the total population, in the 2015-16 school year.
Enrollment trends among RBCS students who receive free-and-reduced lunch are also troubling. The influx of poor families who moved to Red Bank is clearly reflected at the Red Bank Borough Public Schools, where the percentage of students who receive free-and-reduced lunch grew from 49% in 2007 to 89% in 2015. During that same time, however, the percentage of students who receive free-and-reduced lunch at the RBCS was essentially flat, growing only one point since 2007.
RBCS weighted lottery is only aimed at increasing enrollment of poor students, does nothing to address racial segregation
On December 1, 2015, the RBCS submitted an application to the Commissioner requesting permission to double its enrollment from 200 to 400 students. The expansion request sparked an outcry in the community. Red Bank residents and public school parents, the LCNJ, the Latino Action Network, the Red Bank NAACP, and the Red Bank Westside Ministerial Alliance among others wrote letters in opposition to the expansion, as did State Senator Jennifer Beck and State Assemblyman Declan O’Scanlon. Red Bank Mayor Pasquale Menna convened a Blue Ribbon Commission, which determined that the RBCS was causing segregation in its report. The Red Bank Borough Council passed two resolutions opposing the expansion as well. 
All the while, the RBCS continued to insist that it reflected the school-aged population of Red Bank. A flyer it posted on its school website stated that the RBCS is “the only diverse student body in Red Bank” (emphasis added), a line school officials continued to insist on throughout the debate and to the media.
At the same time, the RBCS contradicted these assertions in its own expansion request to the Commission. “Examining the deltas of the demographic ethnicity data” in the 2006-10 Census data “indicates the (RBCS) school population is somewhat skewed from that of the town,” the RBCS said in its expansion request. The RBCS also noted that the outdated Census data from 2006-10 indicated that 26% of all Red Bank children under the age of 18 are below the poverty level, while approximately 40% of the RBCS’s student population qualified for free-and-reduced lunch over the past five years. (The NJ DOE uses free-and-reduced lunch status to define economic disadvantage.). Even though the RBCS claimed that its student population had a much higher percentage of poor children than reflected in the Census data, the RBCS proposed conducting a weighted lottery to increase the number of poor children that attended the charter school. However, the weighted lottery was not designed to do anything to address the racial or LEP disparity between the two schools. With the weighted lottery, children who were able to provide proof of their “economically disadvantaged” status would have their names placed in the lottery three times instead of two. In this way, the weighted lottery would allow the RBCS to “sustain our diverse school culture while educating more economically disadvantaged children,” the school said in its expansion request.
By letter dated February 29, 2016, to the RBCS, the Commissioner denied the RBCS’s expansion request. Notably absent from the Commissioner’s letter was any mention of the segregation issue. However, in a letter dated March 10, 2016, the Commissioner granted the RBCS’s request to conduct a weighted lottery for the 2016-17 through the 2018-19 school years. In a press release announcing the weighted lottery, RBCS Principal Meredith Pennotti said: “We are pleased with Commissioner of Education David Hespe’s approval to serve a greater number of underserved students,” and added, “We are proud of the diversity of the RBCS community.”
Under the RBCS charter, siblings of current students are granted automatic entry to the school as long as spaces are available. Typically, the only open spots are in the pre-kindergarten class, although the RBCS holds the annual lottery for applicants of all grades in the event spots open up during the school year.
The RBCS conducted its weighted lottery on April 28, 2016, only the second New Jersey charter school to hold a weighted lottery. However, after widely publicizing the weighted lottery as a tool to increase the enrollment of poor students, it appears it had no discernible effect. Red Bank residents who observed the weighted lottery on April 28 tallied the number of economically disadvantaged applicants as lottery numbers were being assigned, and that tally showed that only 21% of the non-sibling RBCS students applying for spots in the school were economically disadvantaged—far below the 41% of economically disadvantaged students in the school during the 2015-16 school year.
In addition, only 10 pre-kindergarten spots were available to non-sibling students for the 2016-17 school year. Thirty-one students competed for those 10 spots, and of the 10 that gained entry, only four were economically disadvantaged. According to The Asbury Park Press:
“[RBCS Principal Meredith]Pennotti acknowledged changing the schools demographics to better mirror Red Bank will be a slow process. ‘How long is that going to take? Forever,’ she said. ‘But we’re working on it.’”
Despite increased segregation, RBCS seeks relief from the Consent Order it refuses to abide by
On September 15, 2016, the RBCS submitted an application to the Commissioner for a five-year charter renewal. (The Commissioner and the NJ DOE Office of Charter Schools is currently reviewing the application.) Despite the fact that segregation has increased since the Consent Order was signed, the RBCS believes it no longer needs to abide by it. “Confident in its’ [sic] abilities and consistent performance, the [RBCS Board of Trustees] seeks to be relieved of the Consent Order issued in 2005 [sic],” claiming that “all elements are being met.”
However, in the renewal application, the RBCS never outlined any efforts it has made or is making to assure that the gender, race/ethnicity, economic status and limited English proficient percentages of the students attending the RBCS equate as closely as practicable with the gender, race/ethnicity, economic status, and limited English proficient percentages of school-aged students residing in the Borough of Red Bank, as required by section 9 of the Consent Order. In addition, while it is clear that the RBCS’s outreach to poor, Hispanic, and LEP families has not been adequate, resulting in the vast disparity in percentages of free-and-reduced lunch, Hispanic, and LEP students, the RBCS says in its renewal application that it has “focused a major priority on community outreach in the 2016-17 school year,” and “engaging the larger community.” And yet, again, it never specifies what its plan for broader outreach to the community is.
 The promise of unsegregated schooling extends not only to de jure but to de facto segregation as well Jenkins v. Township of Morris School District, 58 N.J. 483 (1971)
 In re Adoption of 2003 Low Income Hous. Tax Credit Qualified Allocation Plan, 369 N.J. Super. 2, 21 (App. Div. 2004) (citing N.J. Const. art. I, para. 5)
 45 N.J. at 173-74
 N.J.S.A. 18A: 36A-1, et seq.
 N.J.S.A. 18A: 36A-8(e)
 N.J.S.A. 6A:11-2.2(c)
Red Bank Borough Public School 2015-16 data http://www.state.nj.us/cgi-bin/education/data/enr11plus.pl
Red Bank Charter 2015-16 data http://www.state.nj.us/cgi-bin/education/data/enr11plus.pl
 The Blue Ribbon Commission on the Red Bank Charter School Proposal http://www.redbankgreen.com/wp-content/uploads/2016/01/RBCS-blue-ribbon-report-FINAL-012716.pdf
 NJ DOE collects enrollment figures in October of each school year
 RBCS expansion request, Appendix I, available at http://www.redbankgreen.com/wp-content/uploads/2015/12/RBCS-Amendment-Request-Dec-2015.pdf
 Note: The demographics provided by the Red Bank Borough Public Schools differ slightly from those provided by the NJ DOE. The NJ DOE’s numbers are from October 2015; the RBBPS numbers are from the spring of 2016.
 Roger Foss, Vice President of the RBCS Board of Trustees, February 10, 2016. Aduio of quote: https://vimeo.com/155288308 Full recording of press conference can be found here http://www.redbankgreen.com/2016/02/red-bank-charter-officials-defend-plan/#more-102350
 Board’s Legal Response (January 28, 2016), at 9-10, available at http://rbb.k12.nj.us/cms/lib5/NJ01001817/Centricity/domain/109/hespe/LegalResponse.pdf
 Board’s Legal Response (1/28/2016) at 11-13, In re Grant of Renewal Application of the Red Bank Charter School, 367 N.J. Super. 462 (App. Div. 2004).
 Consent Order (3/20/2007) at 4
 Consent Order (3/20/2007 at 5.
 Board’s Legal Response (1/28/2016) at 13.
 Letter to Gov. Chris Christie (1/15/2016) available at http://www.redbankgreen.com/wp-content/uploads/2016/01/Beck-Hespe-letter-011516.pdf
 Letter to Commissioner David Hespe (1/25/2016) available at http://www.redbankgreen.com/wp-content/uploads/2016/02/oscanlon-rbcs-letter-012516.pdf
 Mayor Pasquale Menna’s Blue Ribbon Commission recommendation to the Red Bank Borough City Council (1/27/2016) available at http://www.redbankgreen.com/wp-content/uploads/2016/01/RBCS-blue-ribbon-report-FINAL-012716.pdf
 Borough of Red Bank Resolution 16-26 (1/16/2016) available at http://rbb.k12.nj.us/cms/lib5/NJ01001817/Centricity/domain/109/hespe/RedBankResolution16-26.pdf
 Borough of Red Bank Resolution 16-38 (1/27/2016) available at http://rbb.k12.nj.us/cms/lib5/NJ01001817/Centricity/domain/109/hespe/RedBankResolution16-38.pdf
 RBCS flyer (12/15/2015) available at http://www.redbankcharterschool.com/rbcs/PDFS/RBCSDifference-OneSheet-Dec2015-final.pdf
 “Red Bank Charter says it has 'diverse student body,'” Asbury Park Press (2/1/2016), available at http://www.app.com/story/news/education/2016/02/01/red-bank-charter-says-has-diverse-student-body/79633054/
 RBCS expansion request (12/15/2015) at 14, available at http://www.redbankgreen.com/wp-content/uploads/2015/12/RBCS-Amendment-Request-Dec-2015.pdf
 RBCS expansion request (12/15/2015) at 13, available at http://www.redbankgreen.com/wp-content/uploads/2015/12/RBCS-Amendment-Request-Dec-2015.pdf
 Commissioner’s denial letter (2/29/2016) available at http://www.redbankgreen.com/wp-content/uploads/2016/02/RBCS-Denial-Letter-022916.pdf
 Commissioner’s letter to RBCS re: weighted Lottery (3/10/2016) available at http://www.redbankgreen.com/wp-content/uploads/2016/03/RBCS-Weighted-Lottery-Approval-031016.pdf
 March 23, 2016 RBCS press release available at http://www.redbankcharterschool.com/rbcs/QUICK%20LINKS/Press%20Releases/Red%20Bank%20Weighted%20Lottery%20Release%20FINAL%203-24-15%20KK.pdf
 The Asbury Park Press, “Red Bank schools improve as tensions simmer over charter,” 11/4/16, available at http://www.app.com/story/news/education/in-our-schools/2016/10/31/red-bank-borough-schools-improve-tensions-simmer-over-charter/91661732/
 RBCS Renewal Application (9/15/2016)
 RBCS Renewal Application, September 15, 2016, at 32