Opinion

Hart v. Community Sch. Bd. of Brooklyn, NY Sch. D. 21

383 F. Supp. 699

Court: District Court, E.D. New York
Filed: Apr 2, 1974
Status: Published
Author: Weinstein
On the bench: Weinstein
Cited by: 68 cases
Authority: More cited than 96.8%

coordinating development of desegregation plan in housing and school discrimination case

How later courts described this case

coordinating development of desegregation plan in housing and school discrimination case
finding that the federal courts have an inherent power to appoint experts
finding that school had been unconstitutionally segregated
New York City Police Commissioner ordered to provide adequate protection for children attending desegregated schools

Written by the judges who cited it.

The opinion

*705

TABLE OF CONTENTS

I. SUMMARY 706

II. FACTS 707

A. The Area and Its Environs 707

B. Description of Mark Twain 710

C. Racial Imbalance at Mark Twain 711

D. Underutilization of Mark Twain 713

E. Segregation Within Mark Twain 713

F. Community Perceptions of Mark Twain 714

G. Action of School Officials Contributing to Present Situation 715

H. Inaction of School Officials Contributing to Present Situation 716

1. Rejection of Rezoning Plans 717

2. Failure of Free Choice Plan 717

3. Refusal to Follow Orders of Chancellor to Desegregate 719

4. Fear of Chancellor and Other Central School Officials That Whites Would Leave a Desegregated System 720

I. Public Housing in Central Coney Island 721

J. Impact of Public Housing 723

1. On Underutilization 723

2. On Racial Balance 724

III. LAW 726

A. Supreme Court Standards 726

B. De Jure — De Facto Distinction 728

1. Definition of Racial Segregation 732

2. State Action: School Board Action and Inaction 733

3. Illicit Motive 737

4. Harm from De Facto Segregation 739

5. Internal Segregation 740

6. Practicability 740

7. Contrary Decisions 741

8. Congruence of State Policy 741

C. Segregation is Not Constitutionally Acceptable Whether Desired By a Minority or a Majority 742

1. Minority Desire 742

2. Majority Desire 742

3. Impact of Available Research 743

D. Duty of Housing Authorities 747

1. State Authorities 747

2. Federal Authorities 749

3. Procedural Defenses 752

*706

IV. APPLICATION OF THE LAW TO MARK TWAIN JUNIOR HIGH SCHOOL 754

V. REMEDY 755

A. Power to Eliminate Effects of Past Discrimination 755

B. Duty of Education Officials 756

C. Duty of Housing Officials 757

D. Duty of Other Officials 758

VI. SUPPLEMENTAL OPINION: POWER TO APPOINT SPECIAL MASTER RESPECTING REMEDY 758

WEINSTEIN, District Judge.

This first New York City school desegregation case to reach a federal court is a class action on behalf of children attending Coney Island’s Mark Twain Junior High School, Number 239. Defendants are the Community School Board of Brooklyn, New York, School District Number 21, its members and the Chancellor of the Board of Education of the City of New York. Claiming that defendants are maintaining Mark Twain as an unconstitutionally racially segregated and underutilized school, plaintiffs seek declaratory and injunctive relief. The defendant Board and its members contend that segregation, if it exists, is due to housing patterns fostered and maintained by the city, state, and federal authorities who have been impleaded as third-party defendants.

I. SUMMARY

The evidence shows that Mark Twain is segregated. That segregation was brought about partly through the ghettoization of the core of Coney Island. It is also due to deliberately zoning out of the school white middle-class children, enhancing segregative tendencies and leading to gross underutilization of Mark Twain’s physical facilities.

Both the Community School Board of District 21 and responsible city educational officials recognize that they have the power to desegregate Mark Twain. They have refused to do so because they believe that such action might cause white children from District 21 to leave the public school system by moving to the suburbs, or by transferring to private schools, or by various forms of subterfuge, increasing segregation in the schools of District 21. On the local level there is fear — substantially unjustified —for the safety of white children who would be transferred to Mark Twain, concern over the teaching environment in a school where average reading and mathematics levels are much lower than those in any other school in the district; and some latent concern at the prospect of children attending a ghetto school.

Public officials responsible for new housing in the area have exacerbated the situation by applying housing policies mechanically, discouraging integrated occupation of new housing by child-rearing families of a variety of socio-economic levels. Persons now moving into the thousands of publicly assisted new apartments in this area are overwhelmingly black and Hispanic. The whites are primarily persons beyond child-bearing age. The result has been to insure that local schools zoned to the immediate neighborhood will be segregated.

Housing and school patterns feed on each other. The segregated schools discourage middle class whites from moving into the area and the segregated housing patterns lead to segregated schools.

Nevertheless, this area of Coney Island remains fundamentally attractive as a place for all kinds of people to live and to raise and educate children. It is being almost completely rebuilt at a cost to the taxpayérs of the city, state and nation of tens of millions of dollars.

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Mark Twain, a school in excellent physical condition, is located in one of the potentially most attractive settings in the city. It is served by an experienced staff devoted to effective education and has a fine program. It can easily accommodate in safety, and educate well, hundreds of children from other parts of District 21 whose presence will eliminate unconstitutional segregation.

If ever there were a school and an area in New York City where desegregation could be accomplished with benefits to all the children who will attend the school and to the community, it is here. Educational, housing and other officials at all levels of government are required by the Constitution to cooperate in promptly eliminating the effects of segregation at Mark Twain Junior High School.

The history of Mark Twain can be characterized as reflecting neither

de jure

segregation — required by law and custom, typical of southern and border-state schools of the recent past — nor

de facto

segregation, due to segregated neighborhoods arising from purely private decisions of residents without any interference by government, said to be typical of many metropolitan areas in the north. Rather, it reflects both these characteristics. Demographic trends have been accentuated by government choices. Decisions have been made knowing they would encourage segregation and failure to take available steps to reverse segregative tendencies have made a bad situation worse. Whether denominated

de facto

de jure,

the segregation of Mark Twain is unconstitutional.

In fairness to the devoted officials from every level of government involved in some way in education and housing, it must be noted that racism was not a significant factor in what occurred in Coney Island. There was no conspiracy to deprive minorities or to enhance the position of whites. On the contrary, those in education were and are devoted to improving the education of

all

the students in their charge; those in housing were and are dedicated to providing sound housing to

all

the people living in dreadful slums. Desegregation was the goal of all. But, as in the case of so many tragedies of our times, the many people of good will and fine intentions were overwhelmed by social tides beyond their individual control. And the bureaucracies, instead of imaginatively drawing together all agencies of the government, separately applied the logic of consistency to deaden the spirit of resistance, making segregation inevitable instead of only highly probable.

The rest of this opinion demonstrates the illegality of the present situation at Mark Twain and requires planning for rectification.

II. FACTS

The Area and its Environs

The New York Metropolitan area consists of New York City, the counties on Long Island, the area to the north on the mainland, and the cities and counties of northern New Jersey, with a total population of over ten million. The largest concentration of black and Hispanic populations are in the BedfordStuyvesant area of Brooklyn, Harlem in Manhattan and in the South Bronx. While substantial pockets of black population are located in such places as Newark, Yonkers and Hempstead, and large white neighborhoods are found in Central Manhattan, the general northern pattern is present: large central city concentrations of minorities surrounded by a ring of generally low-income whites, followed by a large suburban ring of generally middle-income whites. By 1968, this trend in Coney Island had become pronounced. In the metropolitan area generally, there has been since 1968 a continuing decrease in white population in the city and an increase in white population in the suburban areas.

[Map showing concentrations of nonwhite population in Metropolitan New

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York, and changes of concentrations in District 21, is omitted in published opinion.]

School District 21 lies in the first outer ring and is inhabited generally by some 290,000 people who are mainly white, lower middle-class. It is an area fronting on the Atlantic Ocean, about 3 miles from east to west and 3% miles north to south. Some 3 miles north of the northern end of the District is Bed-ford-Stuyvesant with a large concentration of blacks and Hispanics. Less than ten miles away are the business areas of Manhattan, reached by a number of rapid transit elevated and subway lines.

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Much of the District consists of well kept one and two family homes and small apartment houses built during the period between World Wars I and II. In the post-World War II period a number of large white-occupied housing projects were built by private developers, many with the aid of federally insured loans and some with state and city tax and other aid.

Coney Island lies in the southern part of District 21. It is a peninsula facing the Atlantic Ocean on the south, lower New York Bay on the west and northwest and Coney Island Creek on the north. Broad sandy public bathing beaches and a wide boardwalk overlooking the ocean have been used by hundreds of thousands of people each summer for generations. Long faded is the elegance of the pre-World War I era when the well-to-do came for summer vacations and commuting was by steamboat from the Coney Island Pier. Almost gone too are the remains of the post-World War I fun period when Luna Park, Steeplechase and the Garden Restaurant of Feltmans ranked with Copenhagen’s Tivoli Gardens as places of family amusement and pleasure.

Sea breezes are still cooling in the summer, and moderating in the winter. Fishing is pleasant off the pier, the fascinating open boat fleet of Sheepshead Bay is nearby. Walking on the boardwalk and swimming are free. One of the world’s great aquaria is at hand. A huge indoor public skating rink, a public library, social service centers, religious institutions, rapid transit, open food stands, carnival rides, a view of the city on one side and the sea on the other, and other physical attractions would seem to make this corner of New York an attractive place for children and their parents both to visit and to live in.

Yet, much of Coney Island became one of the City’s worst slums. To see how this came to pass, and to understand this suit, three portions of the peninsula must be examined separately.

The western nose of the peninsula, eastward to 37th Street, is known as Sea Gate. Its inhabitants are white. For more than fifty years a high fence has isolated it with access controlled by private guards. Inside are middle-class one-family homes along privately owned streets. There has been practically no deterioration over the years and property values have appreciated. Some thirty Sea Gate children out of approximately 100 of junior high school age attend Mark Twain; the rest presumably go to private schools.

From 37th Street to Stillwell Avenue is the central area. Apart from the amusement section near the boardwalk, it consisted of two main types of housing prior to World War II. There were some brick two and four-family homes and small apartment houses occupied year-round by families of workers and owners of small businesses. There were also wooden summer bungalows. With the severe housing shortage in the late forties and early fifties, the bungalows were “winterized” and occupied by veterans and others with much the same backgrounds as the permanent residents. Availability of housing in the suburbs and in new apartment houses to the east left vacancies. Housing began to deteriorate as speculators rented to welfare families and other poor people. Physical destruction of abandoned buildings by unsupervised youths and their use by addicts increased crime. A sense of desolation and despair led the whites to abandon the area at an accelerating tempo. By the middle-sixties, aged whites, blacks and Hispanics occupied a terrible slum. Already, however, public housing and slum clearance had started. Almost all of Central Coney Island has now been denominated an urban renewal area. By the mid-seventies almost all of it will have been torn down and replaced by large modern apartment buildings built by the city and state, partly with federal funds.

East of Stillwell Avenue to Ocean Parkway are some modern apartment houses built in the forties and fifties near Ocean Parkway, an extensive area once utilized by Luna Park, and large areas “reclaimed” from wetlands by earlier city dumping and land fill. Large

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private apartment house developments were built here for the white lower middle-class in the sixties. Rents exclude all but a relatively few middle class blacks and Hispanics.

[Map showing changes of concentrations of nonwhite population by census tracts is omitted in published opinion.] While police precincts and school districts are not congruent, an examination of preeinct-by-precinct data on race, income, age, welfare cases and crime, when integrated with evidence in the case, suggests some of the problems.

See

D. Burnham, “Precinct Crime Compared With Peoples Age, Wealth,”

New York Times,

June 30, 1973, p. 1, col. 1. In Central Coney Island, as compared to the rest of District 21, blacks and Hispanics are in high concentrations; median family income is much lower and families with income less than $4000 is high; (in the District as a whole less than 5% of the families have incomes over $25,000); the percent of population between 14-21 and over 65 years is high; percentage of families on welfare is high; the unemployed non-student male population 16-21 is high; and the homicide and robbery rates are high. As of 1969 the City Planning Commission found the welfare rate to be three times the city average; juvenile delinquency was two and one-half times the citywide average; and 45 percent of the population lived below poverty standards.

Description of Mark Twain

Mark Twain is situated at the northern edge of the middle sector of Coney Island where the Coney Island Creek enters Gravesend Bay, an arm of New York’s lower harbor. It is a well constructed three-story brick building approximately forty years old, thoroughly rebuilt and refurbished a few years ago. Among its facilities are a large modern auditorium, separate large gymnasiums for girls and boys, a large lunchroom with a modern kitchen, well equipped science laboratories, a well stocked library, and home-making and other specialized rooms. New typewriters and calculating equipment, machines for remedial reading, ana other paraphernalia of modern teaching are available in satisfactory quantities. The printing and other shops seem well equipped for the use of children of this age group.

In addition to the usual outside recreation areas of a junior high school of this vintage, the building is adjacent to a sizeable city park. As a result there are tennis and handball courts, grass ball fields, and track facilities available to the children during and after school hours for intra- and inter-mural sports.

On the day the court visited the school, in December of 1973, all the facilities appeared to be well used; the teaching and other staff seemed genuinely concerned with helping their young charges; and the children seemed well disciplined, alert, and interested in their school work. Imaginative use of the surrounding area was being made; for example, the science class was examining specimens gathered at the nearby seashore and use of the park facilities was scheduled.

The visit confirmed the impression left by the evidence received in court that some classes were segregated due to tracking, and that there were far fewer children than the facility and staff could handle. Lack of students is a reflection of the fact that Mark Twain has both the lowest utilization rate in the District and the highest absentee rate. The general emphasis on academic exercises requiring reading skills also seemed less than would be expected in a school attended by middle-class pupils in the five other Junior High and Intermediate Schools in District 21 — J.H.S. 43, 228, and 281; I.S. 96 and 303.

AVERAGE DAILY PERCENTAGE OF ATTENDANCE DISTRICT 21

SEPTEMBER 1972 - JUNE 1973

(City Wide 83.41)

J.H.S. 43 86.05

1.5. 96 89.37

J.H.S. 228 86.04

J.H.S. 239 72.26

J.H.S. 281 85.15

1.5. 303 86.15

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Reading scores for Mark Twain remain low as indicated by the following chart (based on

New York Times,

p. 51, col. 1, September 26, 1973; p. 1, col. 1, March 18, 1973):

READING SCORES

DISTRICT 21

Grade 8 Median Grade Score Percentage of Students Reading At or Above Grade Level Ranking of City Junior High Schools

1971 1972 1972 1973 1973

J.H.S. 43 9.3 8.7 48.3 53.4 23

1.5. 96 8.0 8.2 36.6 38.2 56

J.H.S. 99 9.3 9.3 * 50.5 *

J.H.S. 228 8.4 8.0 39.7 41.6 46

J.H.S. 238 8.4 8.4 •X-53.7 -X

J.H.S. 239 5.8 5/7 13.8 13.9 108

J.H.S. 281 8.2 7.8 42.7 42.4 43

1.5. 303 9.8 9.0 45.9 47.2 38

* Not published.

The principal of Mark Twain attributed part of the low reading scores to the high absentee rate. Those children who do attend regularly show, according to his testimony, dramatic increases in reading skills as a result of the remedial reading programs. The intense efforts to improve average reading levels as compared to the paucity of results is frustrating. As the principal explained, many of the students have known nothing but failure and it is difficult to motivate them to come to school and to try to learn. Getting through to the parents seems almost as difficult. During the trial, a P.T.A. meeting and film at the school attracted thirty parents of whom three were minority.

Racial Imbalance at Mark Twain

Over the past ten years, the racial balance of the Mark Twain student body has changed drastically. In 1962 white students comprised about 81 % of the total enrollment. (The category “white students” may include a very few Orientals and American Indians.) In each of the last ten years, the percentage of white students has declined. By 1973 white students comprised only about 18 % of the total enrollment.

In 1962, black students comprised about 7.4%, and Hispanic (mostly Puerto Rican) students about 11.6%, of the total enrollment. In each of the last ten years, the percentage of nonwhite students at Mark Twain has increased. By 1973 blacks comprised about 43.3%, and Hispanos 38.6%, of the total enrollment.

This drastic change in the racial balance at Mark Twain has been due more to the “attrition” of white students than to any influx of minority students. In 1962 whites numbered 156(5 out of a total 1933 students; by 1973 they number only 129 out of 713. By contrast, in 1962 blacks numbered 143, and Hispanos 224, out of a total 1933 students; and by 1973 blacks still numbered only 309, and Hispanos 275, out of 713,

Significantly, the percentage of black students at Mark Twain increased even during the two years (1969-70 and 1971-72) when there was a slight decrease in the actual number of black stu

*712

dents. Similarly, the percentage of Hispanic students increased during the 1968-72 period when the actual number of Hispanos at Mark Twain declined.

The racial imbalance at Mark Twain stands in marked contrast to, and compares very unfavorably with, the racial composition at the other Junior High and Intermediate Schools in District 21.

[Extensive statistical charts on schools in District 21 are omitted in published opinion.]

In October, 1972, the total intermediate and junior high school population of District 21 numbered 8752. Of these, 919 were “open-enrollment” students— students who do not reside in District 21 but who nonetheless attend school there in order to find a school which is more racially balanced than the one in their home district; they came from the heavily black and Puerto Rican areas of Bed-ford-Stuyvesant and are presumably nonwhite. Thus, in October, 1972, there were 7833

resident

students attending intermediate and junior high schools in District 21.

Assuming that the 919 “open-enrollment” students were nonwhite, 1337 of the 7833 resident students were nonwhite. About 17% of the total

resident

enrollment at the intermediate and junior high school in District 21 was nonwhite, while 76% of the enrollment at Mark Twain was nonwhite. Put another way, 41% of the resident nonwhite students enrolled at District 21 intermediate and junior high schools attended Mark Twain.

In the fall of 1973, about 30.4% of all the resident and nonresident students attending schools in District 21 — ele

*713

mentary, intermediate, junior and high ■ — -were nonwhite. 17.43% were black; 11.54% were Puerto Rican; and 1.41% were other Spanish-surnamed. Yet — it bears repeating — at that same point, 81.-9% of the student enrollment at Mark Twain was nonwhite.

Underutilization of Mark Twain

To put the racial imbalance at Mark Twain in perspective, we must examine the extent to which the school is underutilized. Determining the optimum use for a school involves more than a raw statistical comparison of the school’s maximum pupil seating capacity as against its actual student register. Special programs, the physical nature of the school plant, and the unique needs of each individual school and its students must be taken into account. Undoubtedly, the optimum is somewhat below 100% of designed capacity and some underutilization is generally preferable to overutilization. For ease of comparison, the percentages used are based on design capacity.

In 1962, the utilization rate at Mark Twain was 88%. By 1964, it had increased to 98%. In 1965, however, the rate began declining and continued to do so steadily until 1972, save for 1967 when it climbed 1%. By 1972 the utilization rate at Mark Twain had declined to 41%. In the fall of 1973 it remained 41%. Since the actual number of nonwhite students at Mark Twain increased, albeit not greatly, during the 1962-1972 period, this sharp drop in the utilization rate at Mark Twain is obviously due to the “attrition” of white students during the past ten years.

Significantly, the other junior high and intermediate schools in District 21 have not shown a similar decline in utilization over the last several years. As the chart below indicates, three of the other five schools in this category were being overutilized in the school year 1973-74; and during that same year the utilization rate at Mark Twain was 39% lower than the next lowest utilization rate, that of I.S. 303 and J.H.S. 43.

School Utilization Rate 1973-74

J.H.S. 239 41%

J.H.S. 228 100%

J.H.S. 43 80%

J.H.S. 281 108%

1.5. 96 106%

1.5. 303 80%

The utilization rate at Mark Twain was almost 50% below the District average. Even with small classes and many special project rooms, the principal of the school admitted that the school could easily accommodate three hundred more students.

Segregation Within Mark Twain

Within Mark Twain there is a considerable amount of segregation based upon the equivalent of tracking. There are presently seven classifications of students. First, special students with high reading scores who accomplish the three year course of study in two years; second, special students with high reading scores who are not in a rapid advance program; third, students who elect to study a foreign language — these are generally college bound; fourth, students with Puerto Rican backgrounds having trouble with English but who have good potential in reading; fifth, the bulk of students who range from about average in reading ability to considerably below average; sixth, pupils with seriously retarded reading scores; and seventh, children who are so disinterested in academic matters — older boys, generally with substantial emotional or physical problems interfering with learning who do not attend school regularly — they require some sort of work study program.

Inspection of the pictures of the graduating class, as well as the testimony, reveals that despite the high ratio of minority to white students in the school as a whole, the first two categories have been almost entirely white. The fifth, sixth and seventh tracks have been almost entirely nonwhite.

Programs to mix poor and good readers to provide a better racial balance have

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not worked well at Mark Twain and will not work, according to a member of the District 21 Board, unless the school population is “larger and the school [draws] from a cross-section of all the economic and ethnic groups as the rest of the district does.”

The most recent figures, for the incoming class, show some improvement in internal desegregation.

[Chart showing ethnic distribution by classes in 1973 is omitted from published opinion.]

Community Perceptions of Mark Twain

The community and school officials view Mark Twain as a segregated school. So, too, did Professor Nathan Glazer, an expert presented by the School Board and Professor Dan W. Dodson, plaintiffs’ expert.

Doctor Irving Anker, now Chancellor, testified, “it was racially imbalanced.” The principal noted the strong antipathy parents have to sending their children to Mark Twain despite its fine facilities, faculty and program; even the children in the school have a negative image of themselves. He testified:

A. The school is situated in a slum area, for one thing.

The children who do not live in the area have to come by bus. They would have to walk one or two blocks through a high-crime, low-socioeconomic area.

The children have learned from their parents or gotten from their parents certain attitudes about going to a school of this type, where there are a preponderance of minority-group children,

and honestly, that’s the only thing I can say about it. (Emphasis added).

'X- *X* -X- # * -X-

Q. Now, at your school you do perceive it as an overwhelmingly minority school, very heavily minority school; is that correct ?

A. Yes.

Q. And that is perceived throughout the district by your colleagues?

A. I would think so, yes.

Q. Would it be fair to say that the children at your school, or a number of the children at your school, have a negative image of themselves ?

A. I would say so, yes, some of them.

Q. And you as the principal understand and recognize that, and the rest of your faculty recognize that?

A. Right.

Q. And perhaps even a great many of the administrators in the rest of the district know that children at your school have a negative— certain numbers of children at your school have a negative image of themselves; is that correct?

A. It would be my opinion, yes.

The principal also admitted that the reputation of the school — though undeserved — was bad, stating:

A. It seems to me that a school gets its reputation from several sources: One is the published report on the reading scores of the' school, and I’m sure that these people, when they came to me, they had already examined the figures and they saw that the school had the lowest reading score average on the standardized test than any other school in the district, and they were not happy with that.

They had also heard, they told me, that things were difficult for the children in the school, that there were fights and that there were extortions and there were disruptive children in the school. And I said, ‘well, I’m very glad to have you come and look for yourself and see for yourself rather than listen to the rumors.’

•X- -X- *X* *X- -X- *

Q. You indicated that the assemblyman came to your school.

* -X- *• -X* * #

*715

A. He called me on the phone and told me he had attended a meeting of the Sea Park East, the housing development on Surf Avenue, that’s in our area, and he told me that some of the parents at the meeting told him that they were afraid to send their children to Mark Twain, that they didn’t want to send them, they were looking for ways to send them to other schools.

Doctor Nathan Glazer summed up the matter when he testified that segregation “is the perception and the reality there” at Mark Twain.

Action of School Officials Contributing to Present Situation

To a substantial degree the present condition at Mark Twain is attributable to decisions of school officials. The racial composition and utilization of a school is determined in large part by its feeder pattern — that is, in the case of a Junior High School such as Mark Twain, by which graduating elementary students are zoned into that school.

Public School 212 and Public School 216 are both elementary schools with predominantly white student bodies. During the 1973-74 school year, blacks and Hispanos together comprised 39.2% of the total student enrollment at P.S. 212, and 9.6% of the total student enrollment at P.S. 216. At one time students at both P.S. 212 and P.S. 216 fed into Mark Twain — that is, they “graduated” from P.S. 212 and P.S. 216 and under school board rules and regulations, went on to that Junior High School.

Up until September, 1965, about 50% of the graduating class at Elementary School 216 fed into Mark Twain. The other 50% fed into J.H.S. 228. By September, 1966, pursuant to a change in school zoning patterns, all of the graduating class at P.S. 216 began feeding into J.H.S. 223.

Apparently, then, in September, 1966, every graduate of P.S. 216 entered grade 7 at J.H.S. 228. By September, 1968, the change was complete. Because the P.S. 216 students who had been graduating into Mark Twain were predominantly white, this change in feeder pattern had the natural and foreseeable effect of decreasing the white student enrollment at Mark Twain.

In September, 1966, J.H.S. 281, newly constructed, opened its doors. At that time, pursuant to a change in school zoning patterns, P.S. 212 students, who up until then had been feeding into Mark Twain, began attending J.H.S. 281. Because the P.S. 212 students were predominantly white, the construction of J. H.S. 281 in conjunction with the change of feeder pattern effectuated with regard to these two schools had the natural and foreseeable effect of decreasing the white student enrollment at Mark Twain.

In September, 1965, P.S. 303, newly constructed, opened its doors as an elementary facility. The Board of Education’s Central Board had planned for P. S. 303 to be converted into an intermediate facility. Actual conversion began in September, 1968, when grades K through 4 were eliminated, leaving only grades 5 and 6. This phase of the conversion did not affect Mark Twain, however, since Mark Twain only has grades 7 through 9. In September, 1969, P.S. 303 added grade 7, and in September, 1970, it added grade 8. In September, 1971, P.S. 303 eliminated grade 5, completing the conversion to Intermediate School 303.

In adding grades 7 and 8 to P.S. 303, the local School Board withdrew children from the almost entirely white occupied Warbasse Houses and Luna Park House from Mark Twain, Ms. Delores Chitraro, until 1972 Superintendent of District 21, described this development at the trial:

We withdrew Warbasse House children, the junior high school children, from Mark Twain; we did it on a gradual basis and we withdrew Luna Park. We withdrew those youngsters because we had received figures from school planning and also from the

*716

Housing Authority that the new housing coming up in Coney Island would give to us an additional population, that is, children in addition to those already living in Coney Island, which would include a certain number of white children.

-» -x- * -» -x- *

I am referring to O’Dwyer Gardens and West 32nd Street Housing [new public housing to the east of Sea Gate]. The population that was expected did not materialize; hence, the withdrawal of the youngsters who lived in Warbasse and Luna Park that we withdrew for 303 were not compensated for in Mark Twain by an additional white population nor even by an additional minority group population, because the movement within those houses was from within the community itself and not from outside the community.

Ms. Chitraro and Mr. Peter Gianesini, a former member and chairman of the local community school advisory board, objected to the conversion of P.S. 303 as not responsive to the need of the community. They foresaw the adverse racial impact on Mark Twain. Local school officials had serious doubts about the accuracy of the projections upon which the Central Board relied in part in concluding that new housing would fill the void in Mark Twain caused by the removal of students as a consequence of the conversion of P.S. 303.

P.S. 303 was located in a predominantly white, middle class neighborhood and, consequently, the conversion of P.S. 303 from an elementary to an intermediate facility had the natural and foreseeable effect — insofar as it directed students away from Mark Twain — of decreasing the white student enrollment at Mark Twain. In the words of one witness:

[In converting P.S. 303 into an intermediate school,] you practically guaranteed you were going to draw some white children from the area and this [303] was going to become a school that would further weaken the white strength that was in 239 [Mark Twain].

Presently, then, only elementary schools P.S. 188 and P.S. 288 feed into Mark Twain. During the 1973-74 school year, blacks comprised 48.3% and Hispanos 30.9% of the total student enrollment at P.S. 188. During this same year, blacks comprised 50.4%, and Hispanos 41.5%, of the total student enrollment at P.S. 288.

The various actions of the Community Board, and the predecessor local School Board described above — the rezoning effectuated with regard to Elementary School 216; the construction of J.H.S. 228 and the attendant rezoning of students graduating from Elementary School 212; and the phased conversion of P.S. 303 — individually and together, had the foreseeable, inevitable effect of decreasing the white student enrollment at Mark Twain. It helped bring about the severe racial imbalance which we have already described.

The natural and foreseeable impact of the City school officials’ and Community School Board’s actions helping create severe racial imbalance has been magnified and exacerbated by the failure of the Community Board to act to remedy the situation. It is to this failure that we now turn.

Inaction of School Officials Contributing to Present Situation

In September, 1970, the New York City Board of Education was decentralized in an effort to give each individual community more control of its schools. The “local” school board of District 21 became the Community School Board. As soon as the change was effected, Ms. Chitraro brought to the attention of the new Community Board the problem of severe racial imbalance at Mark Twain. The Board directed Ms. Chitraro to examine the situation further and to supply it with information relevant to the possibility of rezoning.

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Rejection of Rezoning Plans

Ms. Chitraro, the office of school zoning of the New York City Board of Education, and the Community School Board did develop a plan to rezone Elementary School 216 so that it would again feed into Mark Twain. The Community Board then met with the representatives of the Parent Associations of all the schools in District 21 and with other members of the community to discuss the possibility of implementing this plan.

On March 25, 1971, the Community Board issued a notice of public hearing with regard to the proposal to rezone P. S. 216. The public hearing was held on March 31, 1971. Ms. Chitraro tells us what happened:

There were representatives, people, present from all the various schools in the District. . . . There were people who spoke against the idea, and there were people who spoke for the idea.

Those parents of the Coney Island area . . . were in favor of having an integrated school situation in Mark Twain, and were in favor of better utilization for Mark Twain because of the diminishing of services. . In the Luna Park hous.es, I found a great deal of ambivalence with certain people being in favor of an integrated situation and others not being in favor. In the 212 and 216 areas and the 281 area, to the best of my knowledge, there was an overwhelming opposition to forming a better integrated school at Mark Twain . because of the feeling of the parents that, one, the education facility at Mark Twain was not as good as either 228 or 281 and, two, their greater fear for safety of the children going to and from Mark Twain and, to some degree, inside the premises of Mark Twain.

On April 7, 1971, the Community Board advised the community that it had decided to make no changes in the status quo. On April 19, 1971, the Parents Association of Mark Twain appealed from the decision of the Community School Board to defendant Harvey Scribner, Chancellor of the Board of Education of the City of New York. When Chancellor Scribner failed to act, the Parent Association of Mark Twain filed a petition with the Commissioner of Education of the State of New York, Dr. Edward Nyquist.

Subsequent to the filing of the petition with Commissioner Nyquist, Chancellor Scribner, in a letter dated September 7, 1971, and addressed to the President of Community School Board of District 21; directed the Board to formulate and approve, by no later than December 31, 1971, a plan “to eliminate racial imbalance and improve building utilization” at Mark Twain. On December 15, 1971, the President advised Chancellor Scribner that the plan he requested would be submitted to him in January, 1972.

Failure of Free Choice Plan

In January, 1972, at a public meeting, the Community Board — in response to the Chancellor’s September 7th directive —adopted a plan. It was entitled:

A plan to augment the junior high school program in order to encourage free choice transfers to Mark Twain Junior High School.

As the title indicates, it was designed to make Mark Twain educationally more attractive in the hope that white parents would voluntarily send their children there. Essentially the program called for spending more money to improve the quality of Mark Twain’s educational program.

Pursuant to the plan, both federal and state monies were diverted from the elementary schools in District 21 to Mark Twain, making possible the development of various special programs. This money, since it was intended to be used for deprived children, undoubtedly was diverted from schools feeding into Mark Twain, probably causing a further deterioration of this junior high school’s entering class.

Special group field trips, for example, were taken to Albany and Philadelphia.

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More significantly, Mark Twain developed a program permitting students to take 8 of their 35 periods in elective areas of special personal interest, such as the performing arts. And an extended school day was instituted, allowing students, under teacher guidance, to participate in special programs, utilizing classroom and other school facilities, after the completion of the normal 'school day.

At the January meeting at which the Board adopted its plan, Allen Zelon, a member of the Community Board, proposed an amendment because, as Mr. Zelon put it at trial, “the plan that was going to be voted upon by the Board did not change the utilization or the racial composition” of Mark Twain. Under Mr. Zelon’s amendment, the two elementary schools which formerly had fed into Mark Twain, P.S. 212 and P.S. 216, would again have become feeder schools for Mark Twain, thereby increasing white student enrollment and utilization. Mr. Zelon would have bussed children from points in front of P.S. 212 and P. S. 216 to Mark Twain. In addition, the amendment provided for enough empty seats so that, should the units projected by the Housing Authority materialize, children from that housing could be accommodated.

The Zelon amendment was voted down by the Community School Board 7 to 2. The reasons for opposition to forced desegregation were much the same as those given at the March, 1971 public meeting.

Commenting on the Community Board’s free-choice plan at trial, plaintiffs’ expert witness, Professor Dodson, testified that

[o]f all the plans that are used, this is the weakest and poorest.

It puts all the responsibility on the parents for the decision as to whether their child will go search for an adequate education, rather than a responsibility on the educational authorities to require them, as a matter of policy, that they arrange for children to attend, conducive to growth and development.

Professor Dodson concluded that “white parents generally won’t [voluntarily] send their children to a minority school.”

At the trial, there was uncontradicted testimony by Mr. Zelon that there was no publicity campaign or other attempt by the Community Board to notify white parents within District 21 of the educational improvement planned for Mark Twain, and no active effort to encourage white parents to send their children there. By this time it was well known in the educational community that free-choice transfer, unaccompanied by publicity or active encouragement, is not calculated to accomplish desegregation. United States Commission on Civil Rights, Racial Isolation in the Public Schools 66-70, 147-148 (1967).

See

Green v. County School Bd. of New Kent Co., Va., 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968).

In any event, as the enrollment statistics for Mark Twain for the 1972-73 and 1973-74 school years make clear, the Board’s program has been singularly ineffective in attracting white students to Mark Twain. The principal of Mark Twain testified that “not one” white student has enrolled at Mark Twain pursuant to the Board’s free-choice plan in spite of the fact that, in the principal’s opinion, the educational program at Mark Twain is currently as fine as any in the City of New York.

The evidence at trial strongly indicated that the physical facilities at Mark Twain and the educational programs— including remedial programs in reading and mathematics, placement of student-teachers from Brooklyn College, and the use of organized volunteer adult tutors —are superior to the facilities and programs of public schools in New York City generally. The principal explained this apparent anomoly by saying, as suggested above, that white parents fear to send their children into the “slum” “high-crime” neighborhood in which Mark Twain is located.

Despite parents’ fears, public bus lines are so conveniently situated that the walk to the school can readily be policed. There is presently some deterio

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rated housing between the bus stops and the school but it should be marked for early clearance. Incidents within the school are now practically non-existent and the court observed that the corridors are strictly and fully policed by teaching, supervisory and auxiliary personnel.

Refusal to Follow Orders of Chancellor to Desegregate

Chancellor Scribner himself had rejected a free transfer plan. In a letter dated April 7, 1972, the Chancellor advised the Community Board President that:

Your plans for improving racial imbalance through the voluntary transfer of white pupils into areas of minority group concentration are hardly likely to succeed. In the areas in which they have been tried, either as “freedom-of-choice” plans or as “reverse open enrollment,” both in this city and across the country, they have been notably unsuccessful. Well motivated as they might be, they have not in the past succeeded in attracting any significant number of pupils and there is no reason to suppose that this plan will be more successful. As a response to the problem of racial imbalance, this proposal is inadequate.

Continuing, the Chancellor stated:

1. A situation of racial and ethnic imbalance exists at Mark Twain Junior High School # 239.

2. In the absence of planned remedial action, this situation is likely to become worse.

3. Mai’k Twain Junior High School # 239 is presently under-utilized.

4. In the absence of firm remedial action, this under-utilization is not likely to be corrected to any great extent.

5. The proposed plan of Community School Board # 21, presented to me on January 13, 1972, leaves me to believe it will not correct the condition of racial and ethnic imbalance or of under-utilization of plant.

Finally, Chancellor Scribner ordered the Community School Board to take

such. action as may be necessary including the adoption of a plan no later than May 17, 1972, to insure that Mark Twain Junior High School 239 will have an enrollment of such a nature that (a) By September 1, 1972, the percentage of minority group students will not vary from the District-wide average for intermediate and junior high schools by more than approximately 30% and the building utilization similarly will not vary by more than approximately 35% (b) By September 1, 1973, the percentage noted above will drop approximately 20% and 25% respectively (c) By September 1, , 1974, the percentages noted above will drop to approximately 10% for both. It is so ordered.

The clear purpose of the Chancellor’s directive was to require the Community Board, through rezoning, to make Mark Twain a school reflective of the District-wide averages both in terms of racial balance and degree of utilization, save for the 10% deviation factor.

On June 30, 1972, Chancellor Scribner met with the Community School Board, and the Board advised the Chancellor that it would not modify its January 5th plan at that time, the Chancellor’s April 7th directive and order to the contrary notwithstanding. In a letter dated July 5, 1972, Chancellor Scribner modified his April 7th directive. Specifically, the Chancellor requested that

1. As was under consideration by your Board, a sixth grade is to be added to Mark Twain for September, 1972.

2. You are to terminate all options and/or any remaining enclave so that all students who would normally attend schools that would feed into Mark Twain will observe that feeder pattern. Therefore, all students who have been scheduled to attend another middle school in the district as a result of such options, will attend Mark Twain in September, 1972.

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3. You are to move forward with your plans for special financing to improve the programming at the school and to introduce innovative ideas and techniques.

On August 10, 1973, the Chancellor advised the Community School Board that this court had ruled:

The fact that this case is now pending does not prevent the Chancellor or the local School Board from taking appropriate action to protect the rights of all the children of this District during the pendency of this case.

He added:

In light of the above, you are hereby again directed to implement by the earliest possible date the steps set forth in the [Chancellor’s] letter of July 5. .

As indicated below, another such letter was sent on December 5, 1973. The Community School Board has, however, failed to act.

Fear of Chancellor and Other Central School Officials that Whites Would Leave a Desegregated System

At trial, Counsel to the Chancellor of the New York City Board of Education said that the Chancellor modified his April 7th directive primarily because he realized that forced integration of Mark Twain would cause white families with school-age children to move out of the integrated school zone and, if necessary, out of the District. Specifically, counsel declared:

[U]pon a second look, after that first April 7th letter, . . . the Chancellor realized that the type of thing that was contemplated [by the April 7th letter] and that we understand to be contemplated by plaintiffs, and that is a massive infusion [of white students] . . . from a contiguous neighborhood into that school will not work; that it will be self-defeating in that those white students, over a very short period of time, will evaporate so that we will not have [an integrated school].

The fear of transfers out of the public schools is well founded. As the Report of the United States Commission on Civil Rights, Racial Isolation in the Public Schools 38-39 (1967) (footnotes omitted) points out:

Private and parochial school enrollment also is an important factor in the increasing concentration of Negroes in city school systems. Nonpublic school enrollment constitutes a major segment of the Nation’s elementary and secondary school population. Nationally, about one-sixth of the total 1960 school enrollment (Grades 1 to 12) was in private schools. In metropolitan areas the proportion is slightly higher, and divided unevenly between city and suburb. Nearly one-third more elementary school students in the cities attend nonpublic schools than in the suburbs. Almost all of them are white. In the larger metropolitan areas the trend is even more pronounced. As Table 8 shows, a much higher proportion of white city students than white suburban students attend private and parochial elementary schools. Nonwhites in these metropolitan areas, whether in cities or suburbs, attend public schools almost exclusively.

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Thus nonpublic schools absorb a disproportionately large segment of white school-age population in central cities, particularly in the larger ones. This poses serious problems for city school systems.

Other testimony, including that of the present Chancellor, Dr. Anker, confirms the conclusion that opposition by white parents with children attending other Intermediate and Junior High Schools in the District — as well as fear that these parents would refuse to send their children to Mark Twain — explains the failure to desegregate.

In a letter dated August 8, 1972, the Community Board advised the Chancellor that it had no intention of implementing suggestions one and two of the Chancellor’s July 5th letter. The Chancellor did nothing thereafter to enforce either his April 7th directive or his July 5th letter or subsequent directives. The Community Board did not implement either the April 7th directive or the July 5th letter.

Finally, at the eleventh hour, on December 5, 1973, the Chancellor again reiterated in a letter to Community School Board 21 his belief “that the present status [of Mark Twain] is not acceptable and that [the] Board must take appropriate steps to change the situation.” He directed that the “Board present a plan within three weeks” on the threat that if it did not do so he would “have no alternative but to direct the adoption of a particular plan.” Still, nothing was done.

Faced with the serious, urgent problem that Mark Twain is a severely racially imbalanced and underutilized school, the Community Board and the Chancellor failed to act. Their inaction had the natural and foreseeable effect of maintaining and perpetuating severe racial imbalance at Mark Twain Junior High School.

This failure does not suggest that there was any intent or desire that Mark Twain be segregated. All school officials were distressed by the situation. They took some steps to reduce the number of children who would be segregated, for example, by zoning the area immediately adjacent to Mark Twain into I.S. 303. These children were minority children. A considerable amount of courage and persistence was required to take this action since the evidence shows strong opposition from the parents of some of the white children in I.S. 303 who objected to a minority school population much higher than that in the neighborhood of the school. The Community Board also welcomes the hundreds of minority pupils bussed from Bedford-Stuyvesant into the District’s Junior High Schools. The school officials cannot be charged with racial prejudice in their official positions or with segregative design or intent.

Public Housing in Central Coney Island

The city, state and federal governments, individually and together, have sponsored, maintained, and managed— and presumably will continue to do so— many publicly-assisted housing projects and multi-family developments in District 21. These projects cover most of the area of Central Coney Island and are within the feeder area of Mark Twain.

The white-occupied 8157 units of middle income non-federally funded housing projects were built in the eastern portion of Coney Island — Luna Park in 1961; Trump in 1964; and Warbasee in 1965. While some city assistance was undoubtedly given to these projects in such matters as street relocations, and while these projects are subject to suit should they discriminate in renting, they are treated as private projects for the purposes of this action.

Between 1954 and 1971, the New York City Housing Authority completed 5141 units of public housing in Community School District 21. As of October, 1973, 3220 housing units had been completed in Coney Island with public funds. An additional 4000 units are planned or being built.

The ethnic composition of the early projects constructed in Coney Island by

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the Housing Authority reflected the community as it was prior to the change in racial composition in the late '50s and early ’60s. Gravesend Houses, a federally-aided project completed in June, 1954, located at Bay view and Neptune Avenues, and West 33rd Street, comprising 634 units of housing, 199 of them for the elderly, was 81.5% white by apartment at initial occupancy. Coney Island Houses, a city moderate income development, completed in February, 1957, bounded by Surf Avenue, West 32nd Street, the Boardwalk and West 29th Street, comprising 534 units of housing, 136 of them for the elderly, was 91.9% white by apartment at initial occupancy. As of June, 1972, the white population by apartment of those projects had dropped, respectively, from 81.5% to 50.8% and from 91.9% to 71.3%. (Statistics based upon apartments tend to substantially underrepresent percentages of nonwhites, since the nonwhite families in public housing tend to be much larger than the white, elderly, families.)

Marlboro Houses, located north of Coney Island, at Stillwell Avenue, Avenue V, 86th Street and Avenue X, completed in January, 1958, was a state-aided project containing 1755 units of public housing, of which 439 were for the elderly. At initial occupancy it was 93.2% white, by apartment. By June, 1972, it was 70.3% white.

Bernard Haber Houses, an all-elderly project of 380 units, built with state aid, with boundaries of West 25th Street, West 24th Street, Surf Avenue and the Boardwalk, completed in June, 1965, had an initial occupancy of 92.6% white, by apartment. It remained essentially a white project, being 93.2% white by apartment in June, 1972.

It is readily apparent that there had been a loss of white population from these early Authority projects from initial occupancy to the present, except for Haber Houses for the elderly. This loss has ranged from 20% to 30% of the initial white population by apartment. The fact that Coney Island was turning into a slum was undoubtedly a contributing factor to this loss of white population.

During the 1960s, in addition to Haber Houses with its 380 elderly units, largely white, the Authority planned and constructed three public housing projects totaling 1847 units, West 32nd Street Mermaid Houses, William O’Dwyer Gardens, and Gerald J. Carey Gardens. 687 units, or 37% of the total, were designed for the elderly. Carey and Mermaid Houses were federally subsidized projects with an average monthly rent per room of $17.98 and $18.58 respectively. O’Dwyer was a city moderate income project, charging $28.36 per rental room. 45% of the apartments at O’Dwyer were for the elderly. The factors of higher rent and proportion of units for the elderly account for the fact that O’Dwyer had retained a relatively high proportion of white occupancy by apartment. It was 74.0% white by apartment in May, 1970 at initial occupancy and remained 70.7% white in June of 1972.

O’Dwyer and Mermaid Houses are located adjacent to one another between West 31st Street and West 35th Street and between Surf and Neptune Avenues. Carey Gardens is located to the east, between West 22nd and West 24th Streets, across Neptune Avenue from J.H.S. 239. The proportions of units for the elderly at Mermaid and Carey are somewhat less than at O’Dwyer, being 39% at Mermaid and 29% at Carey. Mermaid was 48.0% white, by apartment, at initial occupancy in March, 1970, and was 43.4% white as of June, 1972. Carey Gardens was 27.5% white at initial occupancy, and 24.6% white as of June, 1972.

In 1968, a fifty square block area" of Central Coney Island was selected by the city and federal governments as a “target” for government-assisted residential development under urban renewal and related programs, the latter termed Neighborhood Development Program (NDP). The NDP area, located between West 19th Street to Sea Gate and

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between Surf and Neptune Avenues, will be completely reconstructed.

By February, 1973, the City Housing Authority, as part of the NDP program, was constructing 686 family, and 108 elderly, low-income housing units. Plans for further development of low-income housing by the Authority in the NDP area were dropped in favor of moderate-income developments by the New York State Urban Development Corporation. Some 4000 units of moderate-income housing will be built by the state.

The Housing Authority selected tenants for Mermaid, O’Dwyer and Carey pursuant to its regulation, GM 1810. This regulation requires the Authority to give first priority to site and former site residents; second priority to people relocated from Coney Island West Urban Renewal Area and Neighborhood Development Program sites; and third priority to persons in emergency need of housing in Postal Zone 24 — greater Coney Island.

Cf.

Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973). Apparently the Authority adopted this regulation, after consulting-with other government agencies and community groups, in acknowledgment of the community attachment which is frequently felt by persons relocated from the site of a housing project development. The Authority agreed to rent its three NDP projects on the same priority basis which governed its Mermaid, O’Dwyer, and Carey rentals.

The Housing Authority concedes that there has been a substantial loss of white population from its projects. When dislocated by urban renewal, white residents tend to fare better in finding new housing than minority residents. This leads to a disproportionate number of nonwhite former site residents and relocatees applying for public housing. And, under the Housing Authority’s priority policy, these former site residents and relocatees get first choice in public housing.

As a result, the new units of housing opening in the early seventies were overwhelmingly minority with a high proportion of welfare and problem families. The sequence tended to discourage middle-class families who observed what appeared to be a precipitous policy of tipping.

What is striking is that the new white population in the public housing is essentially aged. White families with children are not moving into public housing in this area. In view of the demand for housing, a number of new apartments were converted into larger units for sizeable minority families.

There was a good faith attempt to set target goals for ethnic and racial composition in tenant selection; but the goals were not met. For example, in one project two buildings were heavily occupied (80-85%) by white elderly people and three buildings ended up with black and Puerto Rican families. ,

In a letter to Community School Board 21 in 1972, the then Chancellor summed up the matter when he concluded:

[I]t is anticipated that new housing developments to be constructed in the area would yield 80% to 90% minority group children.

Thus the new construction, rather than correcting the present situation of racial imbalance, is more likely to make it worse, and to place additional pupils in an ethnically imbalanced situation.

(Emphasis added.)

One witness, a member of the Coney Island Community Advisory Board, capsulated the present trend and portents for the future when, after testifying that the original plan for site five and six originally called for 80% white residency, said: “I have been inside Site 5 and 6, and you see a lot of children running around the playground, and they are all Black or Hispanic.”

Impact of Public Housing

On Underutilization

The Community School Board attempted to explain its various actions diverting white students away from Mark

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Twain and the attendant underutilization in terms of housing units now under construction or planned for the area serviced by Mark Twain. Specifically, the Community Board argued that it expected new housing units to mitigate both the underutilization and racial imbalance at Mark Twain. The Board’s expectation was not justified by the facts. Housing presently under construction in the Coney Island area, unless there is a sharp change in rental policy, will not have any significant impact on either the underutilization or the severe racial imbalance at Mark Twain.

Seymour Levine, a principal planner in the Division of School Planning and Research of the New York City Board of Education, submitted a document approved by the Administrator of the Division of School Planning and Research of the' New York City Board of Education, which indicates that under its present grade structure an estimated 739 students would be added to the student body of Mark Twain by 1978 as a consequence of new housing. Even if these projections are credited, by 1978 Mark Twain would still be only 83% utilized. But there is no reason to believe these projections are any more accurate than the misleading ones of the past.

Robert G. Hazen, General Manager of the Urban Development Corporation of the State of New York, testified that by the fall of 1975, “substantial occupancy of [the total number of about 4000 new] units in the Neighborhood Development Plan area of Coney Island would be achieved.” The estimated pupil contribution from those units to Mark Twain, under its present grade structure, would increase utilization at Mark Twain to only 69% by 1975.

The 69% figure is almost identical to the 68% utilization figure referred to by the Chancellor in his April 7th letter to the Community Board. The Chancellor’s letter stated that:

There is some merit in the contention of the Community School Board that new housing may ultimately remedy the under-utilization of Mark Twain Junior High School 239, but the claim is not entirely valid. As of October 29, 1971, the utilization of the school was 41%. On the same date, the utilization of other intermediate and junior high schools in the District was as follows: 91%; 114%; 106%; 112%; 74%. The projections of the Central Zoning Unit, based upon data supplied by the Office of School Planning and Research, show that it is unlikely that utilization of Mark Twain Junior High 239 will improve by 1972, and that

by 197U the utilization is not likely to exceed 68% even taking into account the new housing.

(Emphasis added.)

Based on the most recent projections made available to the court, by 1974 the utilization factor at Mark Twain would be only 64% rather than the 68% referred to by the Chancellor. With regard to the underutilization of Mark Twain, then, housing units planned for Coney Island hold little promise.

On Racial Balance

With regard to the severe racial imbalance at Mark Twain, housing units planned for Coney Island offer no hope if present government programs are not modified. The fact that Central Coney Island, unlike the rest of District 21, has a predominantly nonwhite population, and the fact that Mark Twain Junior High School, which services this area, is severely racially imbalanced, have discouraged and presumably will continue to discourage, white persons, especially white families with school-age children, from renting or purchasing housing in the area now serviced by Mark Twain. The testimony at trial virtually compels this conclusion.

The General Manager of the Urban Development Corporation of the State of New York, noted, generally, that “a pattern of heavy minority occupancy, a minority percentage, heavy in either junior high school or elementary school, would make it more difficult to attract white families into the immediate neighbor

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hood.” David S. Olinger, formerly Deputy Commissioner of the Department of Development of the City of New York, testified to the same effect:

I believe that people as they are concerned with making their housing choices as to the basic apartments, transportation and shopping, a very major, and perhaps primary concern for family people is the school that their children are going to go to.

If that school is heavily minority in its makeup, people may tend to be a little bit afraid of that situation. And that may be a negative in terms of their making their housing choice to locate in that community.

I think an instance of this is in the real estate pages where schools are advertised as being an important selling point of one particular neighborhood over another.

Chancellor (then Deputy Chancellor) Anker, the defendant Community School Board’s own witness, made this same point:

What is needed is that the area be refertilized with new families. And if —if one does not continue to get into the area families with children whom they are willing and prepared to send to the public schools, then one will lose one’s effect and I would think that given the choice of living in an area where one would have to send one’s children to Mark Twain or living in an area 5, 10, 15 blocks away, maybe even as far as going outside the city, where one could escape it, one would have a negative impact in that area.

Q. How do you fertilize a residential area, to bring in white people, when you have a segregated school there?

A. What do you mean by “segregated school”?

Q. Predominantly minority school, 80 percent minority?

A. I think you have a very, very tough job.

Q. If you have to fertilize that area, that new housing, isn’t it? Around Mark Twain ?

A. If Mark Twain continues to be a school that is overwhelmingly Black and Puerto Rican, it will be rather difficult to attract families, • middle-class families. I point out, middle-class Black as well as White, to into the area. But hopefully, if the majority of the housing there is integrated, one can reflect that in the school.

Q. Yes, but isn’t — but we have just come full circle. Isn’t it going to be difficult to make that housing integrated if Mark Twain is segregated or overwhelmingly minority?

A. If you cannot make a plan or a commitment to the people that you are going to change the nature of the school, yes, it will be difficult.

Professor Dodson, plaintiffs’ principal expert witness, concurred in this conclusion. “My general experience is that the school comes nearer determining the housing of the neighborhood than vice versa, by far.”

In short, then, the Community School Board’s expectation that new housing units in Coney Island will remedy the sharp underutilization and severe racial imbalance at Mark Twain seems unrealistic, especially in light of the racial imbalance existing at Mark Twain.

In fact, the building and rental policies of the various housing authorities have resulted in a minority child bearing population in newly constructed housing. Whites in the low cost housing are primarily elderly persons beyond child bearing age. Partly because the projects are perceived of as nonwhite, the New York City Housing Authority is not able to obtain white families from its waiting lists.

The point was well made by the United States Commission on Civil Rights in its Report, Racial Isolation in the Public Schools at 31, 33-34, 37 (1967) (footnotes omitted):

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In the public schools of the central cities there are also pronounced patterns of stratification and racial isolation. One reason is the high level of residential segregation common to all cities — a product of private discrimination, State and local government practices, and the impact of federally assisted housing programs ....

Other decisions made at all levels of government also have contributed substantially to city patterns of residential segregation. Local public housing authorities, instead of locating projects on small sites scattered throughout the city, have concentrated them in large blocks located in limited areas of the city, frequently in the sections where racial concentrations are most dense. Local improvement programs, such as urban renewal and highway construction, have displaced large numbers of low-income nonwhite families who often have no alternative but to relocate in areas of existing racial concentrations, thereby intensifying residential segregation.

The Federal Government shares with State and local governments the responsibility for decisions that increase residential segregation within cities. Low-income housing programs, although carried out by private parties and local government agencies, usually are federally subsidized, and key determinations such as site selection are made with Federal approval. Similarly, local improvement programs often are heavily financed by the Federal Government and are subject to Federal approval. The Commission has reviewed the impact on racial concentrations in the city, and in the city schools, of three important Federal programs — FHA 221(d)(3), urban renewal, and low-rent public housing.

As noted earlier, the Federal Housing Administration’s 221(d)(3) program of assisting private industry in building rental projects for lower-to middle-income families has been primarily a central city program. In view of the high degree of residential segregation in cities, the sites selected for these projects can be important factors in either intensifying or reducing racial concentrations . public housing often has intensified racial concentrations in central city schools.

See also

Note, “The Responsibility of the Federal and State Governments for Residential Segregation,” in United States Commission on Civil Rights, Racial Isolation in the Public Schools 254-258 (1967); Coleman, et al., Equality of Educational Opportunity 31-32 (1966).

III. LAW

Supreme Court Standards

In Brown v. Board of Education of Topeka (I), the Supreme Court held that statutorily compelled or authorized racial segregation in public schools violates the Equal Protection Clause, “even though the physical facilities and other ‘tangible’ factors may be equal.” 347 U.S. 483, 493 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 (1954). One year later, in Brown v. Board of Education of Topeka (II), the Court ruled that states which statutorily compel or authorize racial segregation must “effectuate a transition to a racially nondiscriminatory school system.” 349 U.S. 294, 301 , 75 S.Ct. 753, 756 , 99 L.Ed. 1083 (1955).

By their terms the two

Brown

cases spoke to racial discrimination compelled or authorized by statute; but it is too obvious and well settled to merit extended discussion, that racial discrimination which is accomplished by administrative design is no less repugnant to the equal protection clause than discrimination which has a statutory imprimatur.

See, e. g.,

Yick Wo v. Hopkins, 118 U.S. 356, 373-374 , 6 S.Ct. 1064, 1073 , 30 L.Ed. 220 (1886) (“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights,

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the denial of equal justice is still within the prohibition of the constitution.”).

In Green v. County School Board of New Kent Co., Va., 391 U.S. 430 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968) and Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971), the Supreme Court amplified the affirmative command of

Brown II.

Green ,

involving a rural and sparsely settled county, school boards which had operated dual school systems held by

Brown I

to be unconstitutional, were declared to have “the affirmative duty to take whatever steps might be necessary to convert to a unitary school system in which racial discrimination would be eliminated root and branch.” 391 U.S. at 437 , 88 S.Ct. at 1694 . The Court then added that “[t]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” 391 U.S. at 439 , 88 S.Ct. at 1694 . In

Swann

the Court applied this “affirmative duty” doctrine to the urban school system of metropolitan Charlotte, North Carolina.

At the close of the last term of court, the Supreme- Court, for the first time, spoke to the problem of a racially segregated school system in a nonsouthern city. The school system in question had “never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education.” Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 191 , 93 S.Ct. 2686, 2688 , 37 L.Ed.2d 548 (1973).

Keyes

the Court announced two evidentiary rules for school segregation cases involving no claim of statutory compulsion or authorization. First:

[P]roof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by a trial court of the existence of a dual system.

413 U.S. at 203 , 93 S.Ct. at 2695 . The Court attached a proviso to this first rule, indicating that the rule would not apply where

the geographical structure of or the natural boundaries within a school district may have the effect of dividing the district into separate, identifiable and unrelated units.

413 U.S. at 203 , 93 S.Ct. at 2695 .

The Court formulated a second rule for situations where (1) the proviso of the first rule renders the first rule inapplicable, or (2) proof of state-imposed segregation in a “substantial portion” of a school district is lacking. The second rule reads as follows:

[A] finding of intentionally segregative school board actions in a meaningful portion of a school system creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.

413 U.S. at 208 , 93 S.Ct. at 2697 . In reference to this second rule, the Court added:

[I]f respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.

413 U.S. at 211 , 93 S.Ct. at 2699 .

The rules as of

Keyes

may be summarized as follows: (1) states and political subdivisions and agencies of the states may not authorize or compel— whether by constitution, statute, ordinance, administrative rule or regulation or accepted custom — racial segregation in public schools; (2) those charged with the responsibility of administering public schools may not act with “unlawful segregative design”,

Keyes ,

413 U.S.

*728

at 208, 93 S.Ct. at 2697 ; and (3) where unlawful racial segregation in public schools exists, action must be taken, immediately, to eliminate it.

The Supreme Court has not yet ruled on the situation where racially imbalanced schools exist absent official compulsion or authorization or segregative design. Such a situation is sometimes described as

de facto

racial segregation. In

Keyes ,

the Court noted that “the differentiating factor between

de jure

segregation and so-called

de facto

segregation to which we referred in

Swann

[ 402 U.S. 1, 17-18 , 91 S.Ct. 1267, 1276-1277 , 28 L.Ed.2d 554 (1971)] is

purpose

intent

to segregate.” 413 U.S. at 208 , 93 S.Ct. at 2697 (emphasis in original).

See also

Gomperts v. Chase, 404 U.S. 1237, 1240 , 92 S.Ct. 16, 17-18 , 30 L.Ed.2d 30 (1971) (Douglas, J., denying preliminary injunction). Avoiding the

de jure-de facto

issue, the Court in

Keyes

said:

We have no occasion to consider in this case whether a “neighborhood school policy” of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting

de jure

segregation. It is enough that we held that the mere assertion of such a policy is not dispositive where, as in this ease, the school authorities have been found to have practiced

de jure

segregation in a meaningful portion of the school system by techniques that indicate that the “neighborhood school” concept has not been maintained free of manipulation.

413 U.S. at 212 , 93 S.Ct. at 2699 .

See also

Report of Select Committee on Equal Educational Opportunity, United States Senate, Toward Equal Educational Opportunity, Sen.Rep.No.92-000, 92nd Congress, 2d sess., 101 (1972).

Among the factors required to be considered by cases such as

Keyes, Swann

and

Brown I

are:

1. The racial and ethnic composition of the student body, faculty and staff;

2. the racial and ethnic compositions of the school compared to that in the school district and other schools in the district;

3. the attitude of the adult community, children in the school and other schools, and teachers and staff toward the school;

4. the history of the school, particularly with respect to opening and closing of other schools and changes in zoning patterns affecting the school;

5. the objective success of the school in educating its students as compared to that of other schools in the district;

6. segregation within the school; and

7. skill of teachers, programs and facilities compared to those in other schools.

In considering these factors, dynamics are important. As the expert for the defendants, Professor Nathan Glazer noted, Mark Twain “is segregated less because of the figures [but] because of what is happening to it, the precipitous drop in other children over the last few years.”

Hispanos, or as they are referred to in most New York City statistics, Puerto Ricans, are to be combined with blacks “for purposes of defining a ‘segregated’ school.” Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 197 , 93 S.Ct. 2686, 2691 , 37 L.Ed.2d 548 (1973). In New York City the educational problems of these two minorities are in many respects similar.

State Action: School Board Action and Inaction.

Once it has been established that racially segregated schooling exists, it must then be shown — in order to make out a constitutional violation — that this segregation was caused or brought about by state action. Acts of omission as well as acts of commission constitute state action.

If a public school is operated as a segregated facility, in an integrated community, the school's character results from the school board’s action or inaction. Just as a public school would not exist but for the state, the character of the public school is determined by the school board. In the words of Mr. Justice Powell:

Public schools are creatures of the State, and whether the segregation is state-created or state-assisted or merely state-perpetuated should be irrelevant to constitutional principle. The school board exercises pervasive and continuing responsibility over the long range planning as well as the daily operations of the public school system. It sets policies on attendance zones, faculty employment and assignments, school construction, closings and consolidations, and myriad other matters.

Keyes,

413 U.S. 189, 227 , 93 S.Ct. 2686, 2707 , 37 L.Ed.2d 548 (1973) (Powell, J., concurring in part).

See also

United States v. Texas Education Agency, 467 F.2d 848, 863 (5th Cir. 1972) (“A school board is an agent of the state. . The actions of the [school board] are ‘state action’ for purposes of the four

*734

teenth amendment. Here school authorities assigned students, faculty, and professional staff; employed faculty and staff; chose sites for schools; constructed new schools and relocated old ones; and drew attendance zone lines”).

A school board which neglects to avoid racial segregation in its school is itself causing or bringing about, as an agency of the state, racial segregation. This is so because a school board, like other legal entities, must be held acountable for the natural, foreseeable, and avoidable consequences of its activities and policies:

The school board’s responsibility for the creation and maintenance of imbalanced schools, even under the policies of approval or disregard, is derived from its deliberate choice to assign children to schools on the basis of geographic criteria when it knows that, given the ghettoized residential patterns, the implementation of this choice will yield racially imbalanced schools.

Piss, “Racial Imbalance in the Public Schools: The Constitutional Concepts,” 78 Harv.L.Rev. 564, 584 (1965).

In this context, the pertinent action of the school board is its choice of a criterion for student assignments. The board decides how students are to be assigned. The result of using a criterion such as geographic proximity in a system with residential segregation is foreseeable; and in most instances there are reasonable measures the board could adopt, if not to eliminate, then at least to mitigate the result that flows from the use of that criterion.

Fiss, “The Charlotte-Mecklenberg Case — Its Significance for Northern School Desegregation,” 38 Chi.L.Rev. 697, 706 (1971).

That school boards must be held accountable for the natural, foreseeable, and avoidable consequences of their activities and policies is hardly a novel view.

See

Bradley et al. v. Milliken et al., 484 F.2d 215 , at 222 (6th Cir. 1973), cert. granted, 414 U.S. 1038 , 94 S.Ct. 538 , 38 L.Ed.2d 329 (1973) (“The manner in which the Board formulated and modified attendance zones for elementary schools had the natural and predictable effect of perpetuating racial segregation of students. Such conduct is an act of

de jure

discrimination in violation of the Fourteenth Amendment.”); Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 149 (5th Cir. 1972), cert. denied, 413 U.S. 922 , 93 S.Ct. 3052 , 37 L.Ed.2d 1044 (1973) (“[A]ctions and policies of the Board, had, in terms of their actual effect, either created or maintained racial and ethnic segregation in the public schools. . . . [I]n our view the use of the neighborhood school plan is the direct and effective cause of segregation in the schools. The Board imposed a neighborhood school plan,

ab initio,

upon a clear and established pattern of residential segregation in the face of an obvious and inevitable result.”); United States v. Texas Education Agency, 467 F.2d 848, 863 (5th Cir. 1972) (“The natural and foreseeable consequence of [the school board’s various administrative actions] was segregation of Mexican-Americans. Affirmative action to the contrary would have resulted in desegregation. When school authorities, by their actions, contribute to segregation in education, whether by causing additional segregation or maintaining existing segregation, they deny to the students equal protection of the laws.”); Oliver v. Kalamazoo Board of Education et al., 368 F.Supp. 143, 180 (W.D.Mich.1973) (“The Kalamazoo School Board’s acts of commission and omission clearly demonstrate that the Kalamazoo School Board’s administration of the school system substantially contributed to and proximately caused the segregated condition which prevails in the system”); Hoots v. Pennsylvania, 359 F.Supp. 807, 823 (W.D.Pa.1973) (“When the natural and foreseeable consequences of actions taken by school authorities are to preserve segregation within the public schools or to hamper its removal, such

*735

actions violate the Fourteenth Amendment.”); Johnson v. San Francisco Unified School District, 339 F.Supp. 1315, 1318-1319 (N.D.Cal.1971) (“[I]f the school board, as in this case, has drawn school attendance lines, year after year, knowing that lines maintain or heighten racial imbalance, the resulting segregation is

jure.”); Soria v. Oxnard School District Board of Trustees, 328 F.Supp. 155, 157 (C.D.Cal.1971) (“The maintenance of unequal educational opportunities in the Oxnard Elementary Schools through racial imbalance denies plaintiffs their rights to equal protection of the laws, guaranteed by the Fourteenth Amendment.”); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 521 (C.D.Cal.1970) (“Under the Fourteenth Amendment a public school body has an obligation to act affirmatively to promote integration, consistent with the principles of educational soundness and administrative feasibility.”).

In the

Keyes

case, Mr. Justice Powell, concurring, but without contradiction, concluded that where racially segregated schools exist, the school board is presumptively responsible for the condition of segregation.

[I]f, after such detailed and complete supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible. Where state action and supervision are so pervasive and where, after years of such action, segregated schools continue to exist within the district to a substantial degree, [the court] is justified in finding a prima facie ease of a constitutional violation.

413 U.S. 189, 227-228 , 93 S.Ct. 2686, 2707 , 37 L.Ed.2d 548 . Reason and common sense require Mr. Justice Powell’s conclusion in a case such as the one before us. The state is responsible for the very existence of its public schools; acting through the school board or some other agent it is responsible for determining the character of its schools.

Moreover, when racial characteristics determine place-of-residence, as undoubtedly they often do in our society, then the school board’s use of a “neighborhood” or residential criterion in student assignment and school construction decisions constitutes a racial classification once-removed. To the extent that racial characteristics determine or have determined place-of-residence, the school board’s use of a residential criterion effectively implicates the state in racial discrimination. The residential criterion

amplifies the consequences of private discrimination; it lengthens the discriminator’s arm, giving him a veto over the neighborhood public school.

Goodman, “De Facto School Segregation : A Constitutional and Empirical Analysis,” 60 Cal.L.Rev. 275, 320 (1972).

The point that the residential criterion is a racial classification once-removed has even more force when governmental acts and policies have contributed substantially to existing patterns of residential segregation. The Report of the Senate Select Committee on Equal Educational Opportunity (Towards Equal Educational Opportunity) concludes:

As in the case of school segregation, housing segregation is seldom a matter of individual choice. It is clear that

Federal, State and local governy nuental practices, at every level, have contributed to the housing segregation which exists today.

These actions combine with those of private organizations such as lending institutions, real estate brokerage firms, land developers and others to establish and maintain residential segregation.

Sen.Rep.No.92-000, 92d Congress, 2d Sess., 121-122, (1972) (emphasis added).

In testimony before the Select Committee, George Romney, then Secretary of the Department of Housing and Urban Development, placed these matters in historical perspective:

Throughout most of that history, the dominant majority supported or

*736

condoned social and institutional separation of the races. This attitude became fixed in public law and public policy at every level of government and every branch of government, and thus it was adopted as a matter of course by the Federal Government when it entered the housing field in the 1930’s. It continued after World War II.

Id.

at 122.

That this residential segregative tendency became fixed in federal practice, as Secretary Romney indicated, is clear.

A glaring example is found in explicit provisions of FHA manuals, revised through 1938 and still utilized in the 1950’s, which discouraged financing real estate transactions that introduced ‘inharmonious racial groups' into a community. FHA fostered school segregation by advising in an underwriting manual that a neighborhood ‘under consideration will prove far less stable and desirable .

if the children of people living in such an area are compelled to attend a school where the majority or a goodly number of pupils represent a far lower level of society, or an incompatible racial element. . . .’

Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, at 182 (W.D.Mich. 1973) (emphasis in original).

The federal government, aided by pervasive state practices in zoning, taxing and the like, must share the responsibility for residential segregation. One authority properly notes:

At the federal level, government agencies for many years explicitly premised their policies on the assumption that economic and social stability was best achieved by maintaining the racial homogeneity of the neighborhood. Thus, from 1935 to 1950, the Federal Housing Administration took the position that “[i]f a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes” and invited appraisers to lower their valuations of property in mixed neighborhoods. According to one authority, this policy “established federally sponsored mores for discrimination in the suburban communities in which 80 per cent of all new housing is being built and fixed the social and racial patterns in thousands of new neighborhoods.”

Goodman, “De Facto School Segregation : A Constitutional and Empirical Analysis,” 60 Cal.L.Rev. 275, 332-333 (1972).

Where, as in the case before us, the federal, state and city governments cooperate to rebuild completely a neighborhood, controlling access to the apartments built and maintained through governmental action, the government’s responsibility for ghettoization is apparent.

Cf.

Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973).

We indicated above that the residential criterion effectively constitutes a racial classification once-removed, where racial characteristics determine plaeeof-residence, as undoubtedly they often do. When residential segregation is the result of state action — and we have seen that it often is — then the school board’s use of a residential criterion constitutes

“double

discrimination”. United States v. Texas Education Agency, 467 F.2d 848 , 864 n. 22 (5th Cir. 1972) (emphasis in original).

Furthermore, we cannot ignore the fact that racially segregated schools themselves contribute to residential segregation, which in turn — through the school board’s use of a residential criterion — further segregates the school.

The character of the public school often plays a critical role in a family’s choice of neighborhood when children are assigned to school on the basis of residence. Just as the residential pattern affects the racial composition of the school, the racial composition of the school affects the residential pattern. This interdependence can be attributed to something far more ob

*737

vious than the alleged fact that segregated education perpetuates the social barriers between the races and thereby encourages residential segregation. By rigidly adhering to geographic criteria over a long period of time the school board assures the parent who does not want his children to go to school with Negroes that this desire can be fulfilled by moving into a white neighborhood. The invasion-succession sequence is also fortified by the use of geographic criteria since it assures the white parent that if he moves out of the neighborhood ‘invaded’ by the Negro, he will be leaving the Negro behind. Of course, many of the factors involved in the choice of residence are far beyond the school board’s control. However, the relationship between the use of geographically determined attendance zones and ghettoized residential patterns is merely a further reason why the school board cannot disclaim responsibility for the imbalanced school.

Fiss, “Racial Imbalance in the Public Schools: The Constitutional Concepts,” 78 Harv.L.Rev. 564, 587-588 (1965).

It is less important that we isolate where this vicious circle — racially segregated schools contributing to residential segregation contributing to racially segregated schools — begins than that the law eliminate, to the extent practicable, the state’s complicity in the maintenance of racially segregated schools. To this end,

[Integration is an educational goal to be given a high, high priority among the various considerations involved in the proper administration of a system beset with de facto segregated schools.

United States v. Jefferson County Board of Education, 372 F.2d 836, 875 (5th Cir. 1966), reaffirmed en banc, 380 F.2d 385 (1967).

Under the Fourteenth Amendment school boards may not respond “to the fact and dilemma of segregation” with “indifference and inaction. School officials” may not neglect “to install actual integration as an objective of administration policy, or even to recognize that . . . segregation is a major problem.” Hobson v. Hansen, 269 F.Supp. 401, 414 (D.D.C.1967), aff'd sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372 , 408 F.2d 175 (1969).

One final point is relevant with regard to inaction of the Community School Board. Where a plan for desegregation is adopted or ordered, nullification of that plan by revision or by refusing to act constitutes “a

de jure

segregative act and a constitutional violation entitling the plaintiffs to a remedy in this court.” Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, at 159 , (E.D.Mich.1973).

Illicit Motive.

Segregative design is not material in the sense that it is not essential in proving a violation of the Constitution in a case such as this. Nevertheless, it may be relevant in proving that segregation exists on the theory that people are more apt to accomplish something if they set out to do so.

As a practical matter it is exceedingly difficult, if not impossible, for a court to ascertain legislative or even executive motive. More to the point, it is virtually impossible for a court to divine the collection of motives which underlies a multi-member school board’s various administrative decisions. The method of judicial inquiry is not well suited to group psychoanalysis. As the Supreme Court has pointed out:

[A]s we said in Palmer v. Thompson, 403 U.S. 217, 225 , [ 91 S.Ct. 1940, 1945 , 29 L.Ed.2d 438 ] it “is difficult if not impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators,” and the same may be said of the choices of a school board. . Thus, we have focused upon the effect — not the purpose or motivation — of a school board’s action [s].

The existence of a permissible purpose cannot sustain an action that has an impermissible effect.

*738

Wright v. Council of City of Emporia, 407 U.S. 451, 461-462 , 92 S.Ct. 2196, 2203 , 33 L.Ed.2d 51 (1972) (emphasis added).

See

Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 323-334 , 93 S.Ct. 2686, 2710 , 37 L.Ed.2d 548 (1973) (Powell, J., concurring) (“This Court has recognized repeatedly that it is ‘extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment,’ .... Whatever difficulties exist with regard to a single statute will be compounded in a judicial review of years of administration of a large and complex school system.”); McGinnis v. Royster, 410 U.S. 263, 276-277 , 93 S.Ct. 1055, 1063 , 35 L.Ed.2d 282 (1973); Palmer v. Thompson, 403 U.S. 217, 224-225 , 91 S.Ct. 1940 -1945, 29 L.Ed.2d 438 (1971); United States v. O’Brien, 391 U.S. 367, 381 , 88 S.Ct. 1673, 1691 , 20 L.Ed.2d 672 (1968).

The United States Court of Appeals for the Second Circuit has itself emphasized that proof of a discriminatory motive is not required under the equal protection clause.

It is now well established that a plaintiff alleging unlawful discrimination in violation of the equal protection clause of the Fourteenth Amendment is not required to prove that a discriminatory motive preceded the unlawful effect .

[T]he Supreme Court has made it clear that it is the

effect

of state action that is to control a claim for relief under the equal protection clause of the Fourteenth Amendment.

Pride (I) v. Community School Board of Brooklyn, New York # 18, 482 F.2d 257, 265, 267 , (2d Cir. 1973) (emphasis in original).

See

Chance v. Board of Examiners, 458 F.2d 1167, 1175-1176 (2d Cir. 1972); Kennedy Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir. 1971), cert. denied, 401 U.S. 1010 , 91 S.Ct. 1256 , 28 L.Ed.2d 546 (1971); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 931 (2d Cir. 1968).

See also

Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972), cert. denied, 413 U.S. 922 , 93 S.Ct. 3052 , 37 L. Ed.2d 1044 (1973) (“School cases serve to emphasize the correctness of this principle, for regardless of motive, the children that suffer from segregation suffer the same deprivation of educational opportunity that Brown condemns. No one would suggest that the validity of a segregation law depends upon the legislators’ motives in enacting it, or that such a law is unconstitutional only when it can be ascribed to racial animus. Why then the distinction between types of school board action that produce segregation? ‘[T]he factor of malevolent motivation is farther from the core of invidiousness that condemns explicit racial discrimination than are the odious effects produced.’ ”); Goodman,“De Facto School Segregation: A Constitutional and Empirical Analysis,” 60 Cal.L.Rev. 275, 284-85 (1972) (“If the courts are indeed prepared to inquire into motive, thorny questions will arise even if one assumes that racial motivation is capable of being proven at trial. What of the case in which one or more members of a school board, but less than a majority, are found to have acted on racial grounds? What if it appears that the school board’s action was prompted by a mixture of motives, including constitutionally innocent ones that alone would have prompted the board to act? What if members of the school board were not themselves racially inspired but wished to please their constituents, many of whom they knew to be so ?”).

Judge Skelly Wright wisely points out:

The complaint that analytically no violation of equal protection vests unless the inequalities stem from a deliberately discriminatory plan is simply false. Whatever the law once was, it is a testament to our maturing concept of equality that, with the help of the Supreme Court decisions in the last decade, we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and un

*739

fair to private rights and the public interest as the perversity of a willful scheme.

Hobson v. Hansen, 269 F.Supp. 401, 497 (D.D.C.1967), aff’d sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372 , 408 F.2d 175 (1969) (footnotes omitted).

Of course, a showing of illicit motive, while not required, is not irrelevant, for it increases the probability, as well as the stigma, of discrimination.

In Wright v. Council of City of Emporia, [ 407 U.S. 451, 461-462 , 93 S.Ct. 2196 , 33 L.Ed.2d 51 (1972)] . . . the Supreme Court observed that “where an action by school authorities is motivated by a demonstrated discriminatory purpose, the existence of that purpose may add to the discriminatory effect of the action by intensifying the stigma of implied racial inferiority.”

Pride (I) v. Community School Board of Brooklyn, New York School District # 18, 482 F. 257 , 266 (2d Cir. 1973).

Harm from De Facto Segregation.

The conclusion that racial segregation in public schools violates the equal protection clause absent statutory compulsion or authorization and absent even a finding of “unlawful segregative design”, is supported not only by reason and authority, but also empirically, by the fact that such segregation inflicts upon the segregated, nonwhite students the selfsame harm which the Constitution as interpreted in

Brown I

sought to prevent.

Their consignment to predominantly Negro schools . . . causes Negroes to feel that they are being discriminated against, or, as a Negro teenager told Dr. [Robert] Coles, “contained.” It would be morally callous, and factually inaccurate, to suggest that their assumption that these schools wear “a badge of inferiority” stems solely from their free choice “to put that construction upon it.” [T]he nation in abolishing Negro slavery merely released the Negro into the bondage of an informal social and economic caste system cemented together by bias and discrimination. Despite the revolution of the last 13 years, these' attitudes remain distressingly pervasive forces in race relations even today. What it means to be Negro in America thus “becomes a psychological fact in [the] daily lives” of Negro children, who are the heirs and victims of these traditions of prejudice, significantly influencing their attitude toward study and education; understandably, in their view the predominantly Negro school is “part of a history of exile and bondage.” And Negroes read in the eyes of the white community the judgment that their schools are inferior and without status, thus confirming and reinforcing their own impressions.

In an environment defined by such unhealthy attitudes, it should not be surprising that the predominantly Negro schools show a pronounced intrinsic tendency to slide in a pathological direction. This of course affects the schools’ teachers, of whatever race, whose own demoralization and low expectations, communicated back to the children, contribute further to the schools’ social disintegration in a vicious though understandable circle.

Hobson v. Hansen, 269 F.Supp. 401, 420-421 (D.D.C.1967), aff’d sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372 , 408 F.2d 175 (1969) (footnotes omitted).

See

A. Bickel, The Supreme Court and the Idea of Progress 112 (“If a Negro child perceives his separation as discriminatory and invidious, he is not, in a society a hundred years removed from slavery, going to make fine distinctions about the source of a particular separation”). See

also

Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, at p. 156 (W.D.Mich.1973); United States Commission on Civil Rights, Racial Isolation in the Public Schools, 109-110, (1967), both quoted above at part III B,

supra.

*740

Although the principal victims of a racially segregated education are the minority students, it is no less true that racially segregated schools inflict considerable harm on white students and society generally. For example, as one commentator observes:

[D]e facto segregation fosters racism in white students, thus significantly raising the level of prejudice and discrimination in the society. Many social scientists are convinced that the all-white neighborhood school is a prime incubator of ethnocentric attitudes and behavior.

Goodman, “De Facto Segregation: A Constitutional and Empirical Analysis,” 60 Cal.L.Rev. 275, 335-336 (1972) (footnotes omitted).

See also

Hobson v. Hansen, 269 F.Supp. 401, 419, 504 (D. D.C.1967), aff’d sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372 , 408 F.2d 175 (1969); I Fleischmann (Commission) Report on the Quality, Cost, and Financing of Elementary and Secondary Education in New York State 226-27 (1973); “Brief for the Committee of Law Teachers Against Segregation in Legal Education,” 34 Minn.L.Rev. 289, 319-320 (1950), quoted above at part III B,

supra.

Internal Segregation.

Tracking is a common means of maintaining racial isolation within a school. United States Commission on Civil Rights, Racial Isolation in the Public Schools 161-162 (1967). As the Commission on Civil Rights notes (ibid.):

If, in a newly desegregated school, children attending the same grade are grouped in separate classrooms on the basis of their achievement level, the result may be the establishment of racially isolated classrooms within the nominally desegregated school. Data from Commission studies show that many Negro students who attend majority-white schools in fact are in majority-Negro classrooms. These students generally perform at the same levels as Negro students in majority-Negro schools.

So far as the children are concerned, such internal segregation is even more invidious than segregation by schools, since it is impossible to ignore what is observable each day. Internal segregation is illegal. Hobson v. Hansen, 269 F.Supp. 401, 511-514 (D.D.C.1967), aff’d sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372 , 408 F.2d 175 (1969).

See

M. S. Sorgen, “Testing and Tracking in Public Schools,” 24 Hastings L.J. 1129 (1973).

Practicability.

The conclusion that the state has a responsibility to eliminate segregation and that its failure to exercise its powers to that end constitutes an unconstitutional state activity carried to its logical extreme has broad implications. It would lead, as plaintiff’s expert explicitly proposed in his testimony in this case, to a mixing of school populations in the entire New York metropolitan area to insure that no child was compelled to attend a racially segregated school. For an area as large as New York City or Metropolitan New York, the problems of practicability become critical. Desegregation may cause such a loss of time and such confusion as to outweigh any possible advantages to the students or society. To require equalization of racial and ethnic percentages in smaller areas such as Brooklyn might also prove abortive because the central portions have such high proportions of black students. Desegregation that results in every school having an overwhelming black and Hispanic student body accomplishes little. This suggests that the rule may include an element of reasonableness. This is to say, the state must act to eliminate

de facto

racial imbalance unless it is clearly impracticable to do so.

Cf., e. g.,

Hobson v. Hansen, 269 F.Supp. 401, 515 (D.D.C.1967), aff’d sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372 , 408 F.2d 175 (1969) (where desegregation not possible compensatory education required); Bell v.

*741

School City of Gary, 213 F.Supp. 819, 831 (N.D.Ind.), aff’d 324 F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 (1964); Blocker v. Board of Education of Manhasset, New York, 226 F.Supp. 208, 229 (E.D.N.Y.1964); Wright, “Public School Desegregation: Legal Remedies for De Facto Segregation,” 40 N.Y.U.L. Rev. 285, 301 (1965) (“The fact that the classification to attend the school is based on geography . . . does not make the classification less illegal unless it can be shown that no reasonable classification will alleviate the inequality.”). This factor has been referred to as the “rule of reason.” Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 238 , 93 S.Ct. 2686, 2712 , 37 L.Ed.2d 548 (1973) (Powell, J., concurring).

Any reliance upon impracticality would require the state to meet the heavy burden of the compelling necessity test. As the Court of Appeals for this Circuit recently pointed out, discussing its

Otero

decision in a school segregation case:

Although integration was the object of the action in

Otero ,

the method by which it was achieved was outright denial of new public housing to nonwhite persons on account of race. The dangers inherent in such action clearly justify the “heavy” burden.

Pride (II) v. Community School Board 18, 488 F.2d 321, 327, n.3 (2d Cir. 1973).

This is an issue we need not address in this case. Here the district involved is small and overwhelmingly white. There is no reason not to take effective steps to desegregate except the constitutionally impermissible one that some white parents do not wish to send their children to black schools or neighborhoods.

As part of the state’s obligation to eliminate segregation there is, of course, a concomitant obligation to ináure that there is no diminution of the quality of education afforded white students or of their safety. There is in this case not the slightest factual basis for believing that these factors provide a practical barrier to desegregation.

Contrary Decisions.

There are reported federal appellate decisions from other circuits arguably adopting positions declaring that only classic

de jure

segregation is unconstitutional.

See

United States et al. v. Board of Education, Independent School District No. 1, Tulsa, Oklahoma, et al., 459 F.2d 720, 724 (10th Cir. 1972), vacated and remanded, 413 U.S. 916 , 93 S.Ct. 3048 , 37 L.Ed.2d 1038 (1973) (“for further consideration in light of Keyes v. School District No. 1, 413 U.S. 189 , 93 S.Ct. 2686 , [ 37 L.Ed.2d 548 ]”); Deal v. Cincinnati Board of Education, 369 F.2d 55, 61 (6th Cir. 1966), cert. denied, 389 U.S. 847 , 88 S.Ct. 39 , 19 L.Ed.2d 114 (1967); Downs v. Board of Education, 336 F.2d 988 , 998 (10th Cir. 1964), cert. denied, 380 U.S. 914 , 85 S.Ct. 898 , 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, 324 F.2d 209, 213 (7th Cir. 1963), cert. denied, 377 U. S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 (1964).

See also

United States Commission on Civil Rights, Racial Isolation in the Public Schools 223 (1967) (“The issue of whether the equal protection clause forbids adventitious school segregation has been litigated frequently, but remains an open question.”). Each of these cases was decided in terms of the principle that proof of illicit motive is required to sustain an equal protection claim of unlawfully segregated schools. For reasons stated above, this principle is not applicable to the instant case where school authorities acted and failed to act knowing segregation would be the result of their decisions.

Congruence of State Policy.

While not decisive, it is of some significance that the conclusion in this case that segregation in New York is illegal apart from motive is congruent with New York State policy. “New York purport[s] to require the elimination of racial imbalance in all schools.” United States Commission on Civil

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Rights, Racial Isolation in the Public Schools 23 (1967);

Id.

at 233, 234, n. 10 (New York cases collected).

See also

I Fleischmann (Commission) Report on the Quality, Cost and Financing of Elementary and Secondary Education in New York State 226-227 (1973). This is also the policy expressed in the testimony in the instant case by the New York City Board of Education and the Chancellor of the New York City School system — though some doubt has been expressed about the efficacy of the techniques used to execute that policy.

See

D. Rogers, 110 Livingston Street 34 (1968); Steing, “Strategies for Failure,” 41 Harv.Ed.Rev. 158 (1971);

cf.

D. Ravitch, The Great School Wars 241-311 (1974). Thus, the conclusion of this court enforces rather than flouts state policy and no possible considerations of comity require forbearance.

Under United Mine Workers v. Gibbs, 383 U.S. 715 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966), we would exercise pendent jurisdiction to enforce the state law requiring desegregation.

See

Pride (I) v. Community School Board 18, 482 F.2d 257, 271-272 (2d Cir. 1973).

Segregation is Not Constitutionally Acceptable Whether Desired by a Minority or a Majority.

Minority Desire

It has been urged that self-imposed segregation in the public schools is desirable and therefore constitutional.

See, e. g.,

F. Mosteller and D. P. Moynihan, On Equality of Educational Opportunity 62 (Vintage ed. 1972); I. E. Robinson, Jr., “Preparation for Life: The Black Classroom,” in J. Haskins, Black Manifesto for Education 8 (1973); R. W. Crary and L. A. Petrone, Foundations of Modern Education 433 (1971).

This position would have to be rejected even were there basis in fact for the position that segregated schools improved the education of black students —a proposition belied by data available to date.

See, e. g.,

subsection 3

infra;

A. F. Allen, “The Politics of Urban Education,” in J. Haskins, Black Manifesto for Education 60-61 (1973); K. B. Clark, “Issues in Urban Education,” in J. Haskins, Black Manifesto for Education 76 (1973) (“There is not a single exception anywhere in this country to the basic finding that racially homogeneous, predominantly black or minority-group schools are inefficient in terms of providing these children with an effective education and that the norm is underachievement in these schools”); W. E. B. DuBois: The Crisis Writings 86-87 (Ed. D. Walden, 1972) (“Some people in . Northern cities are quietly trying to establish separate colored schools. This is wrong, and should be resisted by black men and white. Human contact, human acquaintanceship, human sympathy is the great solvent of human problems. Separate school children by wealth and the result is class misunderstanding and hatred. Separate them by race and the result is war. Separate them by color and they grow up without learning the tremendous truth that it is impossible to judge the mind of a man by the color of his face.”).

New York State bars segregation imposed by minorities.

See

Buder, “Regents Act to Bar College Segregation A Minority Imposes,” N. Y. Times, Dec. 15, 1973, p. 1, col. 2. The Board of Regents, by an official policy statement, has called for full desegregation in higher education.

Ibid.

It had long had this policy for other schools.

Majority Desire

Shortly after

Brown

the point was made in the most dramatic way possible that whites could not prevent desegregation by force. President Eisenhower sent federal troops into Little Rock to help enforce federal court decrees requiring desegregation.

Since then a more subtle form of resistance has been threatened. If desegregation is ordered, it has been said, whites will flee the system. Voluntary movement is guaranteed by the Constitution.

See

Shapiro v. Thompson,

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394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969);