                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-4-2002

Bd Ed Twp Branchburg v. Livingston
Precedential or Non-Precedential: Precedential

Docket No. 01-3151




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PRECEDENTIAL

       Filed December 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3151

BOARD OF EDUCATION OF THE TOWNSHIP OF
BRANCHBURG; GREGORY SCOTT; GERALDINE
FELDMAN; PATRICIA BOWERS; ROBERT J. FULTON, JR.,
BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 98-cv-05557)

BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 99-cv-00822)

       Board of Education of the Township of Branchburg;
       Gregory Scott; Geraldine Feldman; Patricia Bowers;
       Robert J. Fulton, Jr.,
       Appellants

(*Amended Pursuant to F.R.A.P 43(c))




Nos. 01-3152 and 01-3153

BOARD OF EDUCATION OF THE TOWNSHIP OF
BRANCHBURG; GREGORY SCOTT; GERALDINE
FELDMAN; PATRICIA BOWERS; ROBERT J. FULTON, JR.,
BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 98-cv-05557)
BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 99-cv-00822)

David Livingston; William L. Librera*,
       Appellants

(*Amended Pursuant to F.R.A.P 43(c))

No. 01-3217

BOARD OF EDUCATION OF THE TOWNSHIP OF
BRANCHBURG; GREGORY SCOTT; GERALDINE
FELDMAN; PATRICIA BOWERS; ROBERT J. FULTON, JR.,
BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

                                2


v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 98-cv-05557)

BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 99-cv-00822)

The Board of Education of the Borough of Somerville,
       Appellant

(*Amended Pursuant to F.R.A.P 43(c))

No. 01-3334

BOARD OF EDUCATION OF THE TOWNSHIP OF
BRANCHBURG; GREGORY SCOTT; GERALDINE
FELDMAN; PATRICIA BOWERS; ROBERT J. FULTON, JR.,
BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.
DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 98-cv-05557)

                                3


BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 99-cv-00822)

Beth Kovacs; Christine Ihling; Steven Jankoski,
       Appellants

(*Amended Pursuant to F.R.A.P 43(c))

No. 01-3413

BOARD OF EDUCATION OF THE TOWNSHIP OF
BRANCHBURG; GREGORY SCOTT; GERALDINE
FELDMAN; PATRICIA BOWERS; ROBERT J. FULTON, JR.,
BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 98-cv-05557)

BETH KOVACS; CHRISTINE IHLING; STEVEN JANKOSKI

v.

DAVID LIVINGSTON, Somerset County Superintendent;
WILLIAM L. LIBRERA*, State Commissioner of Education;
THE BOARD OF EDUCATION OF THE BOROUGH OF
SOMERVILLE, A Body Politic of the State of New Jersey

(D.C. No. 99-cv-00822)

                                4


The Board of Education of the Borough of Somerville,
       Appellant

(*Amended Pursuant to F.R.A.P 43(c))
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Nos. 98-cv-05557 and 99-cv-00822)
District Judge: Hon. Anne E. Thompson

Submitted Under Third Circuit LAR 34.1(a)
July 25, 2002

Before: SLOVITER, NYGAARD, and BARRY,
Circuit Judges

(Filed: December 4, 2002)

       Gerald A. Liloia
       James S. Rothschild, Jr.
       Lance J. Kalik
       Riker, Danzig, Scherer, Hyland &
        Perretti
       Morristown, N.J. 07962

        Attorneys for Appellants,
       Board of Education of the
       Township of Branchburg, Gregory
       Scott, Geraldine Feldman, Patricia
       Bowers, and Robert J. Fulton, Jr.

       Kevin P. Kovacs
       Rita Barone
       Purcell, Ries, Shannon, Mulcahy &
        O’Neill
       Bedminster, N.J. 07921

        Attorneys for Appellees,
       Beth Kovacs, Christine Ihling and
       Steven Jankoski

                                5


       Michael J. Rogers
       McDonald, Rogers & Rizzolo
       Somerville, N.J. 08876

       Raymond W. Fisher
       Schwartz, Simon, Edelstein, Celso &
        Kessler
       Florham Park, N.J. 07932

        Attorney for Appellee
       Board of Education of the Borough
       of Somerville

       David Samson
        Attorney General of New Jersey
       Nancy Kaplen
        Assistant Attorney General
       Howard J. McCoach
       Sarah G. Crowley
        Office of the Attorney General of
        New Jersey
       Trenton, N.J. 08625

        Attorneys for Appellees,
       William L. Librera, State
       Commissioner Department of
       Education, David Livingston,
       Somerset County Superintendent

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In English v. Board of Education of Boonton, 301 F.3d 69,
81 (3d Cir. 2002), this court held that the New Jersey
statute providing for no more than one representative of a
sending school district to participate on the receiving
district’s board of education did not violate the one person,
one vote constitutional requirement. The issue this case
presents is whether English applies when the sending
school district cannot withdraw from its send-receive
relationship.

                                6


I.

The Township of Branchburg School District and the
Borough of Somerville School District, nearby towns in New
Jersey, entered into a "send-receive" relationship in 1956
for the education of Branchburg high school students, a
relationship authorized and governed by New Jersey
statute. See N.J. Stat. Ann. S 18A:38-8 (West 1999). Under
New Jersey law, each school district has an obligation to
educate the students in its district from K through 12 at its
own expense. See id. S 18A:38-1 (Attendance at school free
of charge). The send-receive relationship enables
Branchburg to fulfill its statutory obligation to educate its
high school students by sending them to Somerville High
School and paying the Somerville School District tuition
that reflects the "actual cost" of educating the students. See
id. S 18A:38-19. However, under New Jersey law,
Branchburg residents are entitled to the representation of
only one member on the ten-member Somerville Board of
Education ("Somerville Board"), despite the fact that
Branchburg students comprise more than half of the
enrollment at Somerville High School. See id. S 18A:38-8.2.

The Board of Education of the Township of Branchburg
and four Branchburg residents ("Branchburg Appellants")
brought this action in the District Court for the District of
New Jersey claiming that N.J. Stat. Ann. S 18A:38-8.2
violates the "one person, one vote" principle of the Equal
Protection Clause of the Fourteenth Amendment. U.S.
Const. amend. XIV, S 1. The District Court granted the
Branchburg plaintiffs’ motion for summary judgment and
denied summary judgment requested by the defendants,
the Somerville Board, the State Commissioner of Education,
and the Somerset County Superintendent, holding that the
send-receive statute was unconstitutional as applied to
Branchburg. App. at Pa14 (Bd. of Educ. of Branchburg v.
Livingston, No. 98-5557 (D.N.J. Sept. 5, 2000)). The District
Court ordered an interim remedial plan that increased the
size of the Somerville Board to 15 members and increased
Branchburg’s representation on that Board to six members,
out of the 15, with the right to vote on issues affecting
Branchburg high school students. App. at Pa17-29 (Bd. of
Educ. of Branchburg v. Livingston, No. 98-5557 (D.N.J. May

                                  7


22, 2000)). The interim plan was to remain in effect until
the New Jersey state legislature passed new legislation to
address the matter. Id.

The Branchburg Appellants seek appellate review of the
District Court’s orders dated May 22, 2001 and July 2,
2001 limiting interim relief to the addition of six members
to the Somerville Board. The Somerville Appellees cross
appeal the District Court’s orders dated September 5, 2000,
May 22, 2001, and July 2, 2001 granting Branchburg
summary judgment and instituting the interim remedial
plan.1

II.

FACTS AND PROCEDURAL BACKGROUND

Much of the material that follows is set forth in English
but is included here to provide background for our ultimate
holding.

The New Jersey public school system is organized in
geographical units called school districts. Under New Jersey
_________________________________________________________________

1. The parties have filed notices of appeal from various orders of the
District Court. In No. 01-3151, the Branchburg plaintiffs appeal the
District Court’s order dated May 22, 2001, creating the interim plan for
increasing Branchburg representation on the Somerville Board to six
members and the July 2, 2001 order denying reconsideration of the
interim plan.

In No. 01-3152, the Somerville defendants appeal the same two orders.
In No. 01-3153, the Somerville defendants cross appeal from the District
Court’s order of September 5, 2000, granting summary judgment for the
plaintiffs holding the New Jersey Statute unconstitutional, and also
include in their notice appeals from the May 22, 2001 and July 2, 2001
orders. In No. 01-3217, the Somerville Board of Education cross appeals
from the same orders as in No. 01-3153.

In No. 01-3334, Beth Kovacs, Christine Ihling and Steven Jankoski
(hereafter "Kovacs Plaintiffs") appeal the District Court’s July 23, 2001
order denying their summary judgment motion for an interim remedy for
voters’ rights in Somerville school budget and bond elections.

In No. 01-3413, the Somerville Board cross appeals the District Court’s
orders dated September 5, 2000 and July 23, 2001.
                                8


law, a school district that chooses not to develop high
school facilities must designate a high school outside the
district to receive its high school students. N.J. Stat. Ann.
S 18A:38-11. Correspondingly, a school district may receive
students from outside its district. Id.S 18A:38-8. An
agreement between two school districts whereby one district
sends its high school students to attend a school in another
district is commonly called a "send-receive" relationship.

Once two communities establish a send-receive
relationship, the sending district becomes entitled to one
representative on the receiving district’s school board if its
students comprise at least 10 percent of the total
enrollment, in the applicable grades, of the receiving school.
Id. S 18A:38-8.2a.(2).2 If the students from the sending
district comprise less than 10 percent of the receiving
school’s total enrollment, the sending district is not entitled
to any representation on the receiving district’s school
board. Id. S 18A:38-8.2a.(1). Conversely, even if the
students from the sending district greatly exceed 10 percent
of the receiving school’s enrollment, the sending district is
limited to a maximum of one representative on the receiving
district’s school board.

The Branchburg and Somerville school districts are non-
contiguous communities in Somerset County, New Jersey.
In 1956, they entered into a send-receive relationship. The
agreement allowed Branchburg high school students to
_________________________________________________________________

2. A school district which is sending pupils to another school district
pursuant to N.J.S. 18A:38-8 shall have representation on the board of
education of the receiving school district as follows:

a.(1) If the pupils of the sending district comprise less than 10 percent
of the total enrollment of the pupils in the grades of the receiving district
in which the pupils of the sending district will be enrolled, the sending
district shall have no representation on the receiving district board of
education.

(2) If the pupils of the sending district comprise at least 10 percent of
the total enrollment of the pupils in the grades of the receiving district
in which the pupils of the sending district will be enrolled, the sending
district shall have one representative on the receiving district board of
education.

Id. S 18A:38-8.2 (emphasis added).

                                9


attend Somerville High School in return for tuition
payments from the Branchburg district to cover the costs of
the students’ education. When the agreement was made it
fit the needs of both communities because Branchburg
lacked high school facilities and Somerville had excess
capacity in its school facilities.

Since the formation of the send-receive relationship,
Branchburg’s population has grown substantially. Based on
the 2000 federal census, Branchburg’s population of
14,566 residents now exceeds Somerville’s population of
12,423 residents. Consequently, the students from the
Branchburg district attending Somerville High School
comprise approximately 53 percent of the High School’s
enrollment. For the 1999-2000 school year, 428
Branchburg students attended Somerville High School
compared to 377 Somerville students. At the time the
District Court heard evidence, residents of the Branchburg
district were projected to pay $4,872,846 dollars in
property taxes to the Somerville Board to cover the
education costs for Branchburg students during the 2000-
2001 school year.

Despite the fact that Branchburg students comprise a
majority of the enrollment at Somerville High School, under
the New Jersey statute Branchburg may only appoint one
representative to the ten-member Somerville Board. See
N.J. Stat. Ann. S 18A:38-8.2a.(2). The Branchburg
representative is entitled to vote on certain issues involving
the High School, including capital spending and teacher
dismissals.3 The votes of each member of the Somerville
Board are weighted equally.
_________________________________________________________________

3. N.J. Stat. Ann. S 18A:38-8.1 states that a sending district’s
representative is eligible to vote on the following:

a. Tuition to be charged the sending district by the receiving district
and the bill lists or contracts for the purchase, operation or maintenance
of facilities, equipment and instructional materials to be used in the
education of the pupils of the sending district;

b. New capital construction to be utilized by sending district pupils;

c. Appointment, transfer or removal of teaching staff members
providing services to pupils of the sending district, including any
teaching staff member who is a member of the receiving district’s central
administrative staff; and

d. Addition or deletion of curricular and extracurricular programs
involving pupils of the sending district.

                                10


Beginning in 1970, the Branchburg and Somerville
districts initiated discussions to terminate the relationship.
There are three methods for severing a send-receive
relationship in New Jersey, and Branchburg has tried all
three, unsuccessfully. First, in September 1975, the
Branchburg Board filed a petition with the State
Commissioner of Education to withdraw from its send-
receive relationship with Somerville. Under N.J. Stat. Ann.
S 18A:38-13, the Commissioner may approve a petition for
severance only if "no substantial negative impact will result
therefrom." The Commissioner denied Branchburg’s
petition, finding that severance of the send-receive
relationship would have, among other things, negative
financial implications for the two districts involved. The
Commissioner’s decision was affirmed by both the New
Jersey State Board of Education and the New Jersey
Superior Court, Appellate Division. Bd. of Educ. of
Branchburg Twp. v. Bd. of Educ. of Somerville, 414 A.2d
259, 263 (N.J. Super. App. Div. 1980). The court held that
the agency’s factual determinations, that severance would
negatively impact the districts by creating a "virtually all-
white school" in Branchburg and increasing the educational
costs of both districts, were amply supported by the record.
Id. at 262-63.

The remaining two options available for terminating a
send-receive relationship require the creation of either an
"all purpose" regional school district or a"limited purpose"
regional school district under N.J. Stat. Ann. S 18A:13-2.
The formation of a regional school district likely would
improve Branchburg’s representation by creating a new
school board. See Bd. of Educ. of Englewood Cliffs v. Bd. of
Educ. of Englewood, 608 A.2d 914, 948 (N.J. Super. App.
Div. 1992) ("Regionalization, on the other hand, involves the
formation of an entirely new school district governed by a
separate board of education.").

In 1996, Branchburg and Somerville conducted a
feasibility study for an "all purpose" regional school district.
The experts retained for the study concluded that the
disadvantages of a regional school outweighed the
advantages. Similarly, in 1999, Branchburg, this time at
the direction of an order by the District Court, conducted a

                                11


feasibility study for a "limited purpose" 9-12 regional school
district. App. at Pa67-69 (Bd. of Educ. of Branchburg v.
Livingston, No. 98-5557 (D.N.J. April 9, 1999); Bd. of Educ.
of Branchburg v. Livingston, No. 98-5557 (D.N.J. May 4,
1999)). Again, the experts recommended against the
development of a regional school district. Thus, both parties
agree that Branchburg cannot withdraw from the send-
receive relationship in the foreseeable future.

The Branchburg Board of Education and four individual
residents of Branchburg brought suit in the United States
District Court for the District of New Jersey against the
Somerville School Board, the State Commissioner of
Education, and the Somerset County Superintendent. The
Branchburg Appellants alleged that N.J. Stat. Ann.
S 18A:38-8.2 was unconstitutional as applied to
Branchburg because it violated the "one person, one vote"
principle of the Fourteenth Amendment of the United States
Constitution, by denying Branchburg proportional
representation on the Somerville Board. Similarly, Beth
Kovacs, Christine Ihling, and Steven Jankoski (hereafter
"Kovacs Plaintiffs") brought suit in the same District Court
alleging that the New Jersey statute in question violated
their Fourteenth Amendment rights by denying Branchburg
residents the right to vote along with Somerville residents
in Somerville school budget and referenda elections.

The parties filed cross motions for summary judgment,
and the District Court granted summary judgment to the
Branchburg plaintiffs. App. at Pa10-16 (Bd. of Educ. of
Branchburg v. Livingston, No. 98-5557 (D.N.J. Sept. 5,
2000)). The Court held that N.J. Stat. Ann. S 18A:38-8.2
was unconstitutional as applied "because it denies
Branchburg citizens the right to elect representatives to
oversee the high school education of their children in
contravention of the ‘one person, one vote’ principle." Id. at
Pa14. The District Court ordered an interim remedy that
increased Branchburg’s representation on the Somerville
Board to six members, out of a total of 15 members, and
granted the new members an equal vote on issues affecting
Branchburg high school students. App. at Pa17-18 (Bd. of
Educ. of Branchburg v. Livingston, No. 98-5557 (D.N.J. May
22, 2000)). The Branchburg Appellants have appealed the

                                12


District Court’s interim remedy, and the Somerville
defendants have cross appealed both the District Court’s
holding that N.J. Stat. Ann. S 18A:38-8.2 is
unconstitutional and the Court’s interim remedy.

III.

DISCUSSION

A. Jurisdiction and Standard of Review

We have appellate jurisdiction pursuant to 28 U.S.C.
S 1291 to review a district court’s final judgment.4 Our
review of a district court’s grant of summary judgment is
plenary, applying the same standard used by the district
court. English, 301 F.3d at 75-76. A grant of summary
judgment will be upheld if "there is no genuine issue of
material fact and if, viewing the facts in the light most
favorable to the non-moving party, the moving party is
entitled to judgment as a matter of law." English, 301 F.3d
at 76 (citations omitted); see Fed. R. Civ. P. 56(c).

B. The Effect of the English De cision

We used a two-step analysis in English to determine
whether N.J. Stat. Ann. S 18A:38-8.2 violates the Equal
Protection Clause. First, we considered whether we should
review the statute under strict scrutiny or rational basis
review. We concluded that rational basis review of the
limitation of representation on the receiving district’s board
was appropriate because the receiving district was not
exercising the same governmental powers over the sending
district as it does over its own residents. English, 301 F.3d
at 77-79. Second, we analyzed whether New Jersey had a
rational basis for granting sending districts no more than
_________________________________________________________________
4. Our jurisdiction is limited to review of the District Court’s grant of
summary judgment to the Branchburg plaintiffs and the Court’s interim
remedy. The Notice of Appeal of the Kovacs Plaintiffs from the District
Court’s order of July 23, 2001 denying their motion for summary
judgment for more extensive interim relief is not appealable and will be
dismissed. However, their position (presented to the District Court) is
considered in the text in conjunction with the appeals properly before
us.

                                13


one representative on the receiving district’s school board.
We concluded that the New Jersey legislature has legitimate
reasons for limiting the representation of sending districts
in the decisions of the receiving district’s Board. Id. at 82-
83.

The facts in English are nearly identical to the facts in
the present case. In both cases, the district sending its
students to the receiving school made up more than 50
percent of the school’s enrollment but, due to New Jersey
law, the sending district is limited to one representative on
the receiving district’s school board. Branchburg does not
allege that the Somerville Board exerts any powers beyond
those at issue in English.

Due to the extensive similarities with English ,
Branchburg is limited to two grounds for distinguishing its
case. First, Branchburg, the sending district, unlike the
sending district in English, has already attempted several
times to sever the send-receive agreement and its efforts
have been rejected. Consequently, Branchburg argues that
there is not a rational basis for limiting its representation
on the Somerville Board because its relationship with
Somerville High School is permanent and Branchburg
residents share a long-term interest in the school
equivalent to the interests of Somerville residents.

Second, the Kovacs Plaintiffs argue that the remedy they
seek is unique and was not presented in English . They
argue that they are not only seeking additional
representation on the Somerville Board, but also the right
to vote on the annual Somerville High School budget and
any referenda affecting the High School.

C. Effect of Branchburg’s Inability to Sever the Send-
Receive Relationship

Branchburg argues that the rational basis standard of
review applied in English is inapplicable here because it has
been unable, and will continue to be unable for the
foreseeable future, to sever its relationship with Somerville.
It also argues that the conclusion reached in English that
the New Jersey statute has a rational basis should not
govern this case for the same reason. We reject both
arguments.

                                14
In English, we acknowledged that the denial of an equal
voice in elections generally is reviewed under strict
scrutiny. 301 F.3d at 76. We noted, however, that the
Supreme Court has identified exceptions to that standard
of review, including "geography-based restrictions on the
franchise . . . when a municipality exercises ‘extraterritorial’
powers over individuals outside its boundaries[.]" Id. at 72
(citing Holt Civic Club v. City of Tuscaloosa , 439 U.S. 60, 69
(1978)). Such voting restrictions on non-residents, even if
the actions by the elected body inevitably affect non-
residents, only receive rational basis review. Id. at 72, 77
(citing Holt, 439 U.S. at 68-70).

The Supreme Court in Holt cautioned that there may be
limits on the ability to restrict the franchise of non-
residents if the city has "annexed outlying territory in all
but name." 439 U.S. at 72 n.8 (citing Little Thunder v.
South Dakota, 518 F.2d 1253 (8th Cir. 1975)). We have
interpreted Holt:

       as meaning that strict scrutiny will be applied to the
       exclusion of non-residents from the elections of a
       particular governmental entity only when that unit of
       government exercises a level of control over the non-
       residents’ lives close to or equal to that which it
       exercises over those who actually reside within its
       borders.

English, 301 F.3d at 79.

In English, we concluded that the Boonton School Board,
the receiving district, does not exercise " ‘precisely the same
governmental powers over residents of [Lincoln Park
(sending district)] as it does over those residing within its
[district’s] limits.’ " 301 F.3d at 79 (quoting Holt, 439 U.S.
at 72 n.8). Rather, the Boonton Board exercised control
over all school matters K-12 for Boonton residents, but only
affected Lincoln Park residents on matters involving the
high school. Furthermore, the Lincoln Park Board
maintained exclusive control over the education of its
children from K-8. English, 301 F.3d at 79.

The same arrangement applies to the present case. The
Somerville Board only exercises authority over Branchburg
residents, including the Kovacs Plaintiffs, with regard to the

                                15


Somerville High School. Branchburg is free to control the
education of its children from K-8, and the reach of
Somerville’s powers over Branchburg is limited exclusively
to the High School. As in English, this is not a situation
where the powers of Somerville are co-extensive with regard
to both Somerville and Branchburg residents.
Consequently, as in English, we will evaluate the
constitutionality of the send-receive statute as applied to
Branchburg under rational basis review.
The above analysis is also dispositive of the merits. Our
holding in English that a state may limit the representation
of non-residents on the receiving school board as long as
the receiving board exercises a lesser level of control over
the non-residents compared to residents, English , 301 F.3d
at 79, is fully applicable here. The fact that Branchburg
cannot sever its relationship with Somerville does not alter
our analysis. Whether or not a severance is possible,
Somerville still exercises extraterritorial powers over
Branchburg "only with respect to their high school-aged
children." Id. That reasoning was the essence of the
rejection in English of the constitutional challenge based on
the one person, one vote principle. Branchburg’s inability to
sever the relationship does not affect the limited nature of
Somerville’s extraterritorial powers.

Branchburg argues that the impossibility of severance is
important for determining whether the New Jersey
legislature had a rational basis for limiting sending
districts’ representation on receiving districts’ school
boards. Appellants point to our language in English where,
after concluding that "New Jersey has legitimate reasons for
limiting the representation of [the sending district]," we
added, "there is always the possibility that[the sending
district] might sever its relationship [with the receiving
district]." English, 301 F.3d at 80. Based on this language,
Branchburg argues that its inability to sever the
relationship distinguishes it from English because the
resulting permanence of its relationship with Somerville
gives Branchburg residents the same vested long-term
interest in the Somerville High School as Somerville
residents.

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It is evident from reading the English opinion that our
statement about the possibility of severance was not the
necessary predicate of the ultimate holding. There were two
references to the possibility of severance in the English
opinion, but both were in the context of the legislature’s
legitimate reasons for limiting the sending district’s
representation on the receiving district’s school board. See
English, 301 F.3d at 80, 82. However, the possibility of
severance was not the only legitimate basis cited for the
statute’s structure. Rather, we also noted that a school
board’s broad authority over the entire school district,
authority that goes well beyond matters affecting the high
school, warranted the limited representation of a sending
district. Id. at 80, 82. We stated, "we do not consider it
irrational for New Jersey to limit the power of the sending
district’s representative so as to preserve the receiving
district’s control over matters that affect the school district
as a whole." Id. at 82. We went on to state that although
the statute may not create the optimal system from a
" ‘political science standpoint,’ " New Jersey is only required
to have a legitimate and rational basis for its legislation. Id.
at 82-83 (quoting Holt, 439 U.S. at 73). Thus, there are
other legitimate and rational justifications for limiting a
sending district’s representation on a receiving district’s
school board.

Our conclusion here that the possibility of severance does
not counsel a different result than in English is consistent
with the holdings in both Holt and Little Thunder. In Holt,
Tuscaloosa exerted its police and sanitary regulations and
business licensing requirements over Holt, a small town,
located beyond Tuscaloosa’s city limits. 439 U.S. at 61-62.
There was no indication that Tuscaloosa’s powers were
limited in time or that Holt could take action to escape from
Tuscaloosa’s extraterritorial powers. However, despite the
seemingly permanent nature of Holt’s situation, the
Supreme Court held that it did not violate the one person,
one vote principle of the Fourteenth Amendment. Id. at 68-
70.

Conversely, in Little Thunder, under state law an
unorganized county was made subject to the powers of an
"attached" organized county. 518 F.2d at 1254. Although

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the unorganized county could petition the state for
recognition as an "organized" county and escape the
attached county’s authority, the Court of Appeals for the
Eighth Circuit held that the statute violated the Fourteenth
Amendment. Id. at 1258. As long as a governmental unit
was exerting power over non-residents that was different
from the authority that it had over its own residents, the
limitation of representation did not offend one person, one
vote. Thus, as in English, the temporary or permanent
nature of the authority exerted over non-residents was not
a deciding factor.

D. The Kovacs Plaintiffs

The Kovacs Plaintiffs explain that while the Branchburg
Appellants seek proportional representation, they are
seeking the right to vote on Somerville High School budgets
and referenda affecting the High School. They state that
because this relief was not sought in English , where the
relief sought was limited to additional representation on the
school board, their case is not governed by English. This is
not persuasive. They fail to provide any legal or logical
justification why the type of representation sought should
affect our conclusion that the New Jersey send-receive
statute does not offend the one person, one vote principle.

The fact that the Kovacs Plaintiffs are seeking the
franchise for Somerville school budget and referenda votes
does not distinguish it from the analysis in English. Indeed,
the relief they seek is in some respects greater than that
sought by the Branchburg Appellants and in English. When
Somerville residents vote on the budget and referenda, their
vote affects much more than just the High School. The
annual budget and referenda, by their nature, usually
involve comprehensive and long-term planning that goes far
beyond merely the functioning of the High School. For
example, any referendum may have an impact on
Somerville’s entire educational plan and infrastructure,
while it would not have an effect on Branchburg’s K-8
educational system. Moreover, the inclusion of Branchburg
residents in Somerville’s regular votes on school budgets
and referenda would be an even greater intrusion than
increased representation on the Somerville Board.
Somerville residents, through budget and referenda votes,

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do not exercise " ‘precisely the same governmental powers’ "
over Branchburg residents as they do over themselves.
English, 301 F.3d at 79 (quoting Holt, 439 U.S. at 72 n.8).
It follows that the constitutional objection by the Kovacs
Plaintiffs to the New Jersey statute must also be rejected
for the reasons set forth above.

IV.

CONCLUSION

For the reasons set forth above, we will reverse the
District Court’s grant of summary judgment to plaintiffs
and remand to the District Court with directions to grant
summary judgment for the defendants.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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