Petition — White v. Morgan

Supreme Court brief1976

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IN THE

Supreme Couwt of the United State

Ocroser TERM, 75 l 44 1

Kevin H. Wurre,

Mayor of the City of Boston,

Petitioner,

—_—Ve—

TALLULAH Moraan, et al., and

Joun J. Kernriaan, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Rospert E.. Herzsrerw

Davin BonDERMAN

1229 Nineteenth Street, N.W.

Washington, D.C. 20036

Hersert P. GLEASON

Corporation Counsel

Kevin F. Mooney

Assistant Corporation

Counsel

Law Department

City Hall

Boston, Massachusetts 02201

Attorneys for Petitioner

Of Counsel:

ArnoLp & PorTER

Washington, D.C.

April, 1976

TABLE OF CONTENTS

PAGE

SNE TERI: ssscovtssicsiindnsneiisenieseitasiineereniniiinticcianieaiiinaniiiaiaaiidiiilian 1

IIT. sscucisinicicseentnatehshhieniahinpaitalaiaciinleeapas dialing 2

I TI cctocsesitnttnnsapentsietiniancieadatpniaiiitinistanieiiosins 2

I TD iecieniicienicnnissctienesencnsnterraissninitaincinnn 2

a I ccicescsiritntiniintninsciintariiandipeniigmattinbaasiiiansiaitinii 6

I, Ee GI ccccscrtinccisanicetieticcanictapitindia mmm 7

Reasons for Granting the Wit ....................:ccsccsseeseneesenes 28

aR NA ALT LD I I eS MoE nca eNO EE NTN 36

APPENDICES:

A. Opinion of the Court of Appeals... la

B. Judgment of the Court of Appeals ...................... 52a

C. Opinion of the District Court 20.0.0... eeeeee 54a

D. Relevant Sections of the Equal Educational

Opportunities Act of 1974, 20 U.S.C. §§ 1701

06 GID: sccccenitnicinenegntindaieentianenitiaisecidiaiininiiapiaicmedeies 109a

TABLE oF AUTHORITIES

Cases:

Brown v. Board of Education IT, 349 U.S. 294 (1955) ... 31

Carr v. Montgomery County Board of Education, 377

F. Supp. 1123 (M.D. Ala. 1974), 511 F.2d 1374, reh.

denied, 511 F.2d 1390 (Sth Cir. 1975) ...0.........cc.cesseseeeees 29

PAGE

Davis v. Board of School Commissioners, 402 U.S. 33

CRTU ciscisnitbiiniieantaiapstamedinnsaibediidslmiaiiaanieidanl 6, 27, 29, 30, 32

Goss v. Board of Education, 482 F.2d 1044 (6th Cir.

1973), cert. denied, 414 U.S. 1171 (1974) -2000 29

Higgins v. Board of Education, 508 F.2d 779 (6th Cir.

STTTLD .wstensitestrisinessbiiaissnitebundaiaenanecintenenninadiaaiiaineimeaantdaaiiiisebinsite 31

Johnson v. San Francisco Unified School District, 339

IF’. Supp. 1315 (N.D. Cal. 1971), vacated on other

grounds, 500 F.2d 349 (9th Cir, 1975) 2... eeeeeeeseeeeees 30

Keyes vy. School District No. 1, 413 U.S. 189 (1973) ...... 29

Mayor v. Educational Equality League, 415 U.S. 605

SUTTEED ssnseiceespineasieshiianiimitnceaa ebb eipieainldeiataeiiaaaiias 31

Milliken v. Bradley, 418 U.S. 717 (1974) ...cccceececeseeseeees 30

Missouri Kansas and Texas R. Co. v. May, 194 U.S, 267

ERE. cniccsepinineiitssensaniauiecniasbataletiaipinenininimntianiaiailiduentide 35

Monroe vy. Board of Commissioners, 391 U.S. 450

TEE: vennsvimemsianetennsnbanmegeninenssdneancsinmeininninniibnentds 30

Northeross v. Board of Education, 489 F.2d 15 (6th Cir.

1973), cert. denied, 416 U.S. 962 (1974) ...... eee eeececeees 29

Pate v. Dade County School Board, 434 F.2d 1151

(Sth Cir. 1970), cert. denied, 402 U.S. 953 (1971) ...... 29

Rizzo v. Goode, 44 U.S.L.W. 4095 (January 21, 1976) .... 31

Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970), cert.

gE | eee een 29

PAGE

Schoot Committee v. Board of Education, 1973 Masse.

Adv. Sh. 275, 292 N.E.2d 870 (1973) ...........c.cccceccorereeeeee 7

Spangler v. Pasadena Board of Education, 519 F.2d

430 (9th Cir.), cert. granted, 96 S. Ct. 355 (1975) ... 30

Swann y. Charlotte-Mecklenburg Board of Education,

5 ere HN 6, 29, 30, 31, 32

United States v. Richardson, 418 U.S. 166 (1974) ........ 35

United States v. Scotland Neck City Board of Educa-

eB ee 30, 32

Wright v. Council of the City of Emporia, 407 US.

TE ERIE ‘cccendincduniatepessiubiinunundaneneen seikdasniindiaiatabidinaiensaisdigi 30

Constitution and Statutes:

Fourteenth Amendment, Section 5 ..............:ccssceeceeeeeeeees 32, 34

Equal Educational Opportunities Act of 1974, 20 U.S.C.

Se SE Se ON. cicesicincceweveieiccanhlitanisinilianidinpneniiaianmmemenetmnnin 32

eT ee ee 33

SITE ‘iscisenntesentsntiiimenanabinnn idmiaeinennts 32

EY isthe lainisecsiataLenihine ita caietaeaeimceatienl 33, 34

SEIT sintdtiniteilipsidantsschiamindamaainiienaipmemanemennate 33

SEED diikinsniiepnamvetaionds 33

Other Authorities:

Boston Globe

alain ll dtaltai 18

January 1, 1975 .............cccecseere vieticieideitedamimiandinaiinsinipniane ‘18

SD Tie TTT eceiersnsinnsinsianienntnninabuinaniinnimcmmninadile 18

I a ae ieacrednainats 16

EE | |

PAGE

Catalogue of the Boston Latin School (1957) ................ 12

O. Handlin, Boston’s Immigrants (Athenaeum ed. 1971) 10

J. Kozol, Death at an Early Age (1967) ...........cseeseseee 12

Prospectus, City of Boston, Massachusetts, General

Obligation Bonds (February 26, 1976) ........--..-.-v-e 11

Report of the Special Commission for the Improvement

and Extension of Educational Facilities in the Com-

mnemwenktts (1906) .nccescsscsssssssssscinenemsesiientniemmmane 12

S. Warner, Streetear Suburbs: The Process of Growth

in Boston 1870-1900 (Athenaeum ed, 1973) ................ 9,10

IN THE

Supreme Court of the United States

Ocroper Term, 1975

Kevin H. Wurre,

Mayor of the City of Boston,

Petitioner,

—V.—

TaLLuLaH Morcan, et al., and

JouHN J. Kerrican, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner Kevin H. White, as Mayor of the City of

Boston, respectfully prays that a Writ of Certiorari issue

to review the judgment of the United States Court of

Appeals for the First Circuit in the above-entitled case.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet reported,

but is reprinted in the Appendix hereto, p. la, infra. The

opinion of the District Court for the District of Massachu-

setts is reported at 401 F. Supp. 216 and is reprinted in

the Appendix, p. 54a, infra.’ Previous opinions of the

Court of Appeals and of the District Court in this litiga-

tion are reported at 509 F.2d 580 and 379 F. Supp. 410.

‘The appendix to this petition is hereafter cited as “App.”

JURISDICTION

The judgment of the Court of Appeals was entered.on

January 14, 1976. (App. 52a). The jurisdiction of this

Court is invoked under 28 U.S.C. 4 1254(1). The basis of

jurisdiction in the District Court was 28 U.S.C. § 1343(3).

QUESTIONS PRESENTED

1. Whether the District Court, which had before it two

different plans both of which would eradicate school segre-

gation “root and branch,” erred in refusing, as a matter

of law, to consider the extent of busing, the cost, community

acceptance, and the potential for resegregation of the

schools when choosing between the two plans?’

2. Whether the Equal Educational Opportunities Act

of 1974, 20 U.S.C. §§1701 et seq., required the District

Court, in choosing between two desegregation plans, both

of which would have satisfied the constitutional mandate

to eradicate segregation, to adopt the plan which involved

less busing of students?

INTRODUCTORY STATEMENT

This petition concerns the remedy phase of the Boston

school desegregation litigation. The remedy phase is of

particular importance because, regardless of the conclusion

reached in the liability phase, the actual prospects for

meaningful desegregation in Boston, and the social and

* The two plans involved are the plan drawn up by the Masters

appointed by the District Court and the District Court’s own plan.

See pages 14-20, infra.

economic effects on the City, will vary greatly depending

upon the nature of the remedial decree.

The Mayor’s interest in these proceedings is the mainte-

nance of Boston’s social stability and financial integrity

amidst the far reaching, and in some instances traumatic,

changes required to protect the constitntional rights of the

City’s school children.

Tais case poses a critical problem common to the urban

areas throughout the United States: the extent to which,

as a matter of law, courts must consider such practicalities

as costs, community support, amount of busing, and poten-

tial for resegregation in choosing among a number of

plans, each of which will eradicate segregation. As the

tables at pages 23 and 25, infra, indicate, this case presents a

vivid example of the adoption by courts of the most

extreme measures when more moderate ones will fully

satisfy the requirements of the Constitution and will yield

important social, educational, and economic benefits to the

community.

In the earlier liability phase of this case the District

Court found, and the Court of Appeals agreed, that the

Boston School Committee (an elected body independent

of the Mayor’s control) had maintained a dual and un-

constitutionally discriminatory school system. Those find-

ings are supported by the record, are final, and are not

contested by petitioner.

Indeed, the Mayor was not a party to this litigation

during the District Court’s consideration of liability. After

its finding of segregation, however, the District Court

ordered the Mayor added as a defendant with respect to

the remedy phase of the litigation’ because he is responsible

for the public safety and finances of the City of Boston,

including limited financia! control over the Boston public

school budget.‘

After the Mayor was joined as a defendant, the District

Court entered an order adopting the school desegregation

plan which is the subject of this petition. As described

further below, the District Court had appointed a panel

of four distinguished Masters who held hearings and took

detailed account of the particular requirements of the

Boston school system. The Masters then recommended a

plan which would have eliminated “root and branch” the

segregation previously found to exist. The District Court,

however, rejected the Masters’ plan in significant respects.

As explained below at pages 22-26, there was very

little difference in potential for desegregation between the

Masters’ plan and the District Court plan. Yet the Dis-

trict Court explicitly refused to consider the fact that its

plan required the busing of 6,000 more students than did

* The Mayor was added as a defendant by an order entered on

September 20, 1974.

* The School Committee is an elected body of five members. It

controls operation of the schools independently of the Mayor's gen-

eral executive powers. Under the provisions of Mass. St. 1963 e.

786, § 3, as amended, the Boston School Committee may appro-

priate such amounts for the operation of the schools as it had

available the preceding year with certain additions, but any addi-

tional amounts must be requested from the Mayor and City Coun-

cil. All these amounts, including those appropriated by the School

Committee, come out of funds raised by the City’s general taxing

powers. Thus the School Commiitee’s spending directly and sub-

stantially affects the City’s budget and its financial standing.

In addition, under Mass. St. 1966 ¢. 642 a department subject to

the Mayor’s authority has responsibility for new schoo! con-

struction.

the Masters’ plan, that the Masters’ plan was well accepted

in the community, and that its own plan provoked sub-

stantial hostility. Moreover, the District Court ignored

all cost considerations and would not consider the possible

effects of resegregation caused by its plan. Indeed, the

District Court in ordering, and the Court of Appeals in

cursorily affirming, those portions of the plan at issue here

held that these factors are legally irrelevant. As a con-

sequence, in choosing between two constitutionally-satis-

factory plans, the courts below chose to impose the most

costly plan, the plan most burdensome to students, the

plan ieust acceptable to the community, and the plan most

likely to cause resegregation of the schools.

Boston, in common with other large American cities, is

currently encountering major social and economic stresses.

Under these circumstances, a reorganization of the City’s

most basic and visible every-day function—its school sys-

tem—which does not consider practicalities such as cost,

burden on students, community support, and resegrega-

tion, is bound to have a disruptive impact on the social

framework of the City and on the City’s ability to meet

the needs of its residents. The result in Boston, as else-

where, has been social unrest, dissatisfaction with the

schools, and an entirely unnecessary setback to the cause

of meaningful desegregation.

The courts below evidently believed that imposition of

the more onerous desegregation plan was required by this

Court’s prior holdings. In the Mayor’s view this conclu-

sion was incorrect. This Court’s emphatic mandates to

eliminate segregation promptly and thoroughly—expressed

in cases where desegregation efforts were plainly dilatory

or inadequate—cannot properly be interpreted as auto-

matically requiring district judges to adopt the most

extreme among a number of alternatives, each of which

would fully eliminate segregation. Yet, as this case indi-

cates, oft-quoted phrases from this Court’s prior opinions

can become slogans used to dignify results that are injurious

to desegregation and to the viability cf the City.

This case presents the occasion for this Court to clarify

its directive to achieve the greatest possible degree of

actual desegregation, “taking into account the practical-

ities of the situation,” by the adoption of “workable”

school desegregation plans. Davis v. Board of School

Commissioners, 402 U.S. 33, 37 (1971) ; Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 31 (1971).

This question is of major importance not only to Boston,

but to the future of desegregation and civic vitality in

all urban areas of this country. It is deserving of this

Court’s attention.

STATUTE INVOLVED

The relevant sections of the Equal Educational Oppor-

tunities Act of 1974, 20 U.S.C. 441701 et seq., are repro-

duced in the Appendix, infra, at 109a.

STATEMENT OF THE CASE

1. Prior Proceedings in this Litigation Resulted in a

Finding of Segregation. On June 21, 1974, the District

Court issued its opinion in the liability phase of this litiga-

tion. “ae District Court held that the Boston School Com-

mittee had knowingly carried out a systematic program of

segregation which affected all of the City’s students,

teachers, and school facilities and which intentionally estab-

lished and maintained a dual school system. 379 F. Supp.

at 482. As noted earlier, the Mayor was not a party to this

litigation during the District Court proceedings on liability.

No party to this litigation has ever suggested that he had

any responsibility for creating or maintaining the dual

school system.

2. Desegregation Plans Were Submitted by the Parties

Pursuant to Court Order. On October 31, 1974, the District

Court directed the School Committee to develop and file a

desegregation plan for the Boston schools no later than

December 16.° The court also ordere¢ that the other parties

and any interested community groups would have until

January 20, 1975, to file criticisms of the School Committee

plan or to file alternative plans. Ultimately, three plans

were filed pursuant to the court order—one prepared by

the School Committee staff and submitted to the District

° For one school year while the District Court formulated the

final order on remedy which is the subject of this petition, the

court ordered the Committee to comply with a preexisting racial

balance plan drawn up by the State Board of Education pursuant

to the Massachusetts Racial Imbalance Law. Mass. Gen. Laws Ann.

e. 71, §§ 37C and D and ec. 15, §§ 11, J. and K. See also School

Committee v. Board of Education, 1973 Mass. Adv, Sh. 275, 292

N.E.2d 870 (19738).

Court although not approved by the School Committee

(“the December 16 plan”); one approved by the School

Committee; and one prepared by the plaintiffs.’ Criticisms

and evaluations of the various plans were then filed by a

number of parties, including the Mayor.

3. The District Court Appointed Well-Qualified Masters

to Examine the Parties’ Proposals and to Recommend a

Desegregation Plan. In view of the complexity of the issues

and the numerous suggestions as to appropriate remedies,

the District Court, pursuant to FRCP 53, appointed a

racially integrated panel of four Masters. The Masters

were instructed to hold hearings on the adequacy of the

three proposed plans and, if none of them satisfied con-

stitutional requirements, to submit a plan of their own.

The Masters were Jacob J. Spiegel, a retired Justice of

the Massachusetts Supreme Judicial Court; Francis Kep-

pel, a former United States Commissioner of Education and

a former Dean of the Harvard School of Education; Ed-

ward J. McCormack, Jr., a former Attorney General of

the Commonwealth of Massachusetts; and Charles V. Wil-

lie, a professor at the Harvard School of Education. To

aid the Masters, the District Court appointed two experts,

Dean Robert A. Dentler and Professor Marvin B. Scott of

the Boston University School of Education.

4. The Masters Gave Consideration to Social and Finan-

cial Implications of the Desegregation Plans. The Masters

held eleven days of evidentiary hearings and personally

*In addition, the Boston Ilome and School Association filed a

proposed plan. On February 5, 1975, the District Court, after a

hearing on the Home and School Association's plan, held that the

plan would not be considered because it was constitutionally inade-

quate. (App. 65a).

visited the City’s neighborhoods and the schools in opera-

tion. Counsel for all parties and for a number of com-

munity organizations participated in the hearings, which

dealt at length with the merits and drawbacks of the plans

and suggestions made by the parties and community groups.

The Masters then considered in detail the material pre-

sented to them by the parties, the views expressed by rep-

resentatives of the community, and their own knowledge

and available published materials on the City of Boston

and its school system. This information included the follow-

ing:

(a) Boston’s Demography. Most of Boston’s neighbor-

hoods started as independent and distinctive cities and

towns and were incorporated into the City of Boston as

they grew together in the course of the 19th and 20th cen-

turies. S. Warner, Streetcar Suburbs: The Process of

Growth in Boston 1870-1900, 35-43 (Athenaeum ed. 1973)

(hereinafter cited as Warner). As a result, Boston re-

sembles a confederation of small towns more than it does

a cohesive city. Moreover, the growth of Boston and its

neighboring towns was by no means orderly or comprehen-

sive. For example, Charlestown, which has been a part of

Boston since 1873, is separated from the rest of the City

by Boston Harbor and the Charles River and is sur-

rounded on its land approaches by the separate cities of

Somerville and Cambridge. Similarly, the Brighton-Allston

district of Boston is connected to the rest of the City by a

strip of land a few hundred yards wide and is otherwise

separated from the City by the independent town of Brook-

line. There are still more than 50 separately incorporated

cities and towns within easy commuting distance of down-

town.

Boston has received successive waves of newcomers vir-

tually since its founding by English colonists in 1630, These

include Irish, Italians, Portuguese, Polish, Chinese, Blacks,

Spanish-surnamed, and Greeks. See generally O. Handlin,

Boston’s Immigrants (Athenaeum ed. 1971). New arrivals

have tended to settle—and their descendants to remain—

in particular neighborhoods. For example, the North End

and East Boston have retained their character as Italian

neighborhoods for more than 50 years and Charlestown and

South Boston have been largely Irish in composition for at

least that period of time. See generally Warner, supra.

Due to the geographic isolation of many areas of Boston

and the settlement of various neighborhoods of the City by

different ethnic groups, the people of Boston to this day

have maintained a strong ethni cohesion and deep-rooted

traditional attachment to their neighborhoods. These quali-

ties can serve as a source of strength and vitality in a large

city, and in that respect should not be needlessly disrupted.

They can also, of course, create an impediment to school

desegregation, especially if residents sre led to feel that

their ethnic and neighborhood attachments are being dis-

regarded. As explained below, the Masters displayed con-

cern for these factors and an ability to deal with them in a

constructive fashion.

(b) Boston’s Precarious Financial Condition. In the

past two decades Boston, in common with most urban areas

in this country, has experienced a drastic emigration of the

middle class and a substantial immigration of low income

residents. As a result, citizens of Boston have been faced

with a declining tax base from which to meet vastly increas-

ing costs for schools, hospitals, and public services.

The table below demonstrates just how greatly the City’s

financial requirements have increased in recent years. As

the table shows, the budget for the school system has been

growing at a rate far greater than the remainder of the city

budget.

City Budget? Schools Other Services

ETE istnsbleisieths $334,176,000* $105,812,000* $228,364,000

1973-74? ............ $364,308,000 $119,854,667 $244,453,333

SD" eniiichinccnsieiies $377,296,000 $126,586,000 $210,710,000

UN issihiniiadieadiac $394,310,000 $154,605,000 $239,705,000

In order to support this budget level, Boston has been

forced to raise the rate of its property tax, upon which it

depends for most of its revenue, to the near-confiscatory

level of $196.70 per $1,000 of assessed valuation. This is

by far the highest property tax rate in any major city in

the United States, and it is scheduled to increase stil]

further in 1977. Despite these high taxation levels, the City

has projected a 25-million dollar deficit this year (a sub-

stantial portion of which is attributable to the costs of

school desegregation)’ and this winter was at the brink of

"These figures exclude the costs of contributions to county,

metropolitan, and state governments, pensions, and interest.

* These figures do not include the projected $16 million deficit

now expected in the school budget.

* In 1974 the City of Boston changed from a calendar to a fiscal

year budget, resulting in a single eighteen-month “year” for

1973-74. The figures used for 1973-74 are adjusted to reflect the

costs per twelve months.

gation Bonds, pp. 23-24 (February 26, 1976),

default on certain of its financial obligations. As a result

of its precarious financial situation, Boston has been forced

to cancel new construction and is facing cutbacks on essen-

tial city services such as police, fire protection. and hos-

pitals. In addition, the schools themselves are facing

significant budget cuts. Quite plainly, the general welfare

of both the school children and other residents of Boston

required consideration of comparative costs in choosing be-

tween constitutionally adequate desegregation plans.

(ec) The Educational Problems of the Boston Public

Schools. Boston’s school system is the nation’s oldest,

dating from the founding of the Boston Latin School on

April 23, 1635." But in the past thirty years in particular,

the Boston public schools became increasingly deficient in

the education they offered students, both black and white.

See, e.g., J. Kozol, Death at an Early Age (1967). Indeed,

in the 1960's, a special Commission, assigned by the Com-

monwealth of Massachusetts to investigate schools, noted

that course offerings in the Boston Schools were similar

to those two generations earlier. Report of the Special

Commission for the Lnprovement and Extension of Eduea-

tional Facilities in the Commonwealth, p. 70 (1964).

Among the early students of the Boston schools were Benjamin

Franklin, Samuel Adams, John Ilanecocek, and Ralph Waldo Emer-

son, Catalogue of the Boston Latin School, 11, 20-22 (1957),

Boston also built the nation’s first multi-classroom public elemen-

tary school, the Quiney school, in 1547. Masters Report, p. 2. The

(Juincy School was in use until closed last year.

Thus, in the past few years it had become widely recog-

nized that reform and improvement of the Boston school

system was a matter of some urgency. Despite the severe

limitations on the City’s finances, in 1969 the Mayor ini-

tiated the most extensive school building program per

capita of any city in tie country. But the City’s limited

financial resources precluded many other desirable educa-

tional advances. In light of this background, the Masters

concluded that no desegregation plan would work unless

it included substantial and visible educational improve-

ments.

5. The Masters Found that All the Plans Submitted by

the Parties Were Inadequate. Based upon all the fore-

going materials and information, the Masters ultimately

issued a lengthy report and detailed desegregation plan

(hereinafter cited as “M.R.”). In the report, the Masters

unanimously found that all the plans submitted by the

parties should be rejected by the District Court because

they either did not promise to remedy the segregation or

were educationally unsound.’* The Masters found, how-

’? The Masters found that the School Committee’s plan was

essentially a freedom-of-choice proposal which would unfairly bur-

den the school children and their parent with taking affirmative

action to undo the School Committee's prior discrimination and

that the plan did not realistically promise to desegregate the

schools. M.R. 9-16. The Masters next found that, while the plain-

tiffs’ plan would effectively desegregate most portions of the school

system, it was educationally inferior because it required an exces-

sive number of school changes for certain students: provided for

excessive busing; set up unnecessarily complicated zone boundaries ;

did not adequately provide for the educational improvements which

were sorely needed by the Boston schools; and required the use

of a number of school buildings which the Masters believed should

be closed to preserve the physical safety of the school children.

M.R. 17-25. The Masters also considered the December 16th plan

submitted by the School Committee's counsel over the Committee’s

objections and found that plan, too, unsatisfactory because it im-

posed undue burdens on minority children. M.R. 27.

ever, that each of these plans contained a number of salu-

tary proposals. Specifically, the Masters found that the

School Committee’s proposal to adopt a variety of inno-

vative programs and to offer a limited choice of schools

to students and their parents would contribute to effective

desegregation. They found that the use of geographic

school assignments and limited transfer options generally

as proposed by the plaintiffs would help to desegregate the

system. And the Masters found that, in principle, the

proposals of the December 16th plan with regard to es-

tablishing magnet schools with specially attractive pro-

grams would also aid desegregation. M.R. 16, 24-25, 28.

The Masters concluded, however, that these steps alone

would not fully desegregate the Boston school system and

that a substantial amount of mandatory busing would be

necessary. M.R. 29.

6. The Masters Proposed Their Own Highly Innovative

Plan. Based upon these conclusions, the Masters, again

unanimously, drew up their own plan. This plan included

concepts taken from the School Committee plan, the plain-

tiffs’ plan, the December 16th plan, and the Mayor’s pro-

posals, as well as a number of other features proposed by

the Masters themselves. The Masters viewed their respon-

sibility to the District Court as requiring them to propose

a plan which would not only thoroughly desegregate the

schools and improve the quality of education, but also

defuse the growing hostility between the black and white

communities over the school system. The salient aspects of

the Masters’ plan were as follows:

(a) The City would be divided into nine geographie dis-

tricts containing about two thirds of the student population

OOO a

and one city-wide district containing about one third of the

students. Each of the geographic districts, insofar as was

consistent with desegregation, had a geographical, political,

or historical basis and hence had a certain affinity of in-

terest.

The city-wide district and three of the geographic dis-

tricts, which jointly contained more than half of the

school population, would reflect almost precisely the school

system’s racial population at the time of 50% white and

00% black and other minorities. Three other districts

would be within + 13% of the City’s school population

racial percentages. The final three districts would vary

from the overall city-wide student racial percentage by

somewhat greater margins due to housing patterns or, in

one instance, geographic barriers.** A chart showing the

racial composition by district of the Masters’ plan appears

at page 23, infra. Within the districts, each of the schools

would be within + 10% of the district racial percentages

of students.

(b) There would be a number of magnet schools, in both

the city-wide and local districts. These schools would have

one or more specially attractive programs designed to draw

students of all races to those schools and thereby increase

both inter- and intra-district integration. To aid the de-

velopment and enrich the content of these magnet programs,

the Masters’ plan provided that a number of individual

schools were to be paired with specific businesses and uni-

versities located in the Boston area.

48 East Boston, the one district which would have maintained its

character as nearly all white (and which retains that character

under the District Court plan) is separated from the rest of Boston

by the Boston Harbor and is easily accessible only by a tunnel.

(App. 76a).

students and their parents. Basically, the plan would allow

student choice of assignment to a school in the appropriate

geographic district or in the city-wide district, insofar as

consistent with the racial desegregation guidelines pro-

posed by the Masters.

(d) District and city-wide councils of parents and others

concerned with the school system were to be established to

help explain and monitor the plan.

(e) Finally, the plan required the closing of a number of

physically inadequate facilities, the construction of several

new facilities, and the reorganization of certain parts of

the School Committee’s administrative apparatus to make

certain that the plan was properly implemented. M.R.

31-33.

The Masters concluded that, under their plan, approxi-—

mately 15,000 students would have to be bused for desegre-

gation purposes. This amounted to about 206¢ of the then

student population. As the charts at pages 23 and 25, infra,

show, the Masters’ plan would have thoroughly desegre-

gated the Boston schools.

7. The Masters’ Plan Was Widely Acclaimed. When the

Masters’ plan was released to the public, it received wide-

_spread acclaim for its innovative character and promise

to improve the quality of the education being offered in

the public schools. It also received cautious acceptance as

a viable means of desegregation in a community which had

been badly split by this issue for almost two years. Repre-

sentatives of the black community praised the plan for its

innovation and promise of meaningful improvement in the

educational curricula. Boston Globe, March 23, 1975, p. 4,

col. 4 (NAACP President); Boston Globe, March 24, 1975,

p. 7, col. 4 (Freedom House spokesperson). On the other

hand, a number of representatives of white neighborhood

and school groups who strongly opposed busing stated that

the plan was much more acceptable than they had thought

it would be and that they could live with the Masters’ plan

even though they would prefer the elimination of busing

entirely. Boston Globe, March 23, 1975, p. 4, col. 5 (anti-

busing group president). Thus, while the Masters’ plan

provided a remedy that might not have been considered

ideal by any of the communities which make up the Boston

school system, and was not exactly welcomed by anti-busing

groups, it had a broad degree of acceptability.

This acceptability followed from the work done by the

Masters. As mentioned earlier, the Masters were not only

well qualified to deal with desegregation problems but were

also familiar with the City. They had excellent contacts

with the minority and white communities. Accordingly, in

drafting the plan, the Masters took unusual eare to de-

scribe their actions to the community. They met with public

officials, representatives of the Home and School Associ-

ation, leaders of the black community, and others, and ex-

plained the necessity for an effective remedy to segregation

in the Boston public schools and the details of the Masters’

plan.

Moreover, the Masters understood that, as discussed

earlier, Boston is a city of unusual neighborhood and ethnic

loyaity, and they took those factors into account where

constitutionally possible. Thus, they took great care in

drawing district boundary lines. For example, tae Masters —

determined to redistrict the South Boston area to include

portions of neighboring Dorchester rather than portions

of neighboring Roxbury, which contained approximately

equal numbers of black students. The Masters knew that

histori¢ community ties would make the pairing of Dorches-

ter and South Boston acceptable to both black and white

residents of those neighborhoods, but that the pairing of

Roxbury and South Boston would be acceptable to neither.”

Accordingly, based on their careful consideration of the

practicalities of the situation, the Masters developed a plan

which would combine maximum desegregation and maxi-

mum community acceptability for stable and long term

desegregation.

8. The District Court Rejected Important Parts of the

Masters’ Plan.

(a) Summary Procedure. The Masters filed their final

report and desegregation plan on March 31, 1975, and there-

after the parties to the litigation, including the Mayor,

submitted suggested modifications to the plan. The Mayor

also filed a motion to confirm the Masters’ plan in most

respects.

However, the District Court made substantial revisions

in the Masters’ plan. In making these revisions, Judge

It is noteworthy that most of the unfortunate violence that has

marred Boston’s schoo] desegregation resulted from this pairing,

which was imposed by the District Court contrary to the Masters’

plan. The first such incidents occurred at South Boston High on

the opening day of school in 1974. See Boston Globe, October 9,

1974, p. 1, col. 4. Incidents continued throughout the school year,

at one point forcing the school to close for several weeks. See

Boston Globe, January 1, 1975, p. 1, col. 3; Boston Globe, January

3, 1975, p. 1, col. 4. The Masters sought to prevent a recurrence

of such incidents through their careful districting. After the rejec-

tion of the Masters’ recommendations, violence continued, cul-

minating in the District Court's placing South Boston High School

in receivership.

ii ee eens Seah

Garrity never conferred with the Masters. He first

informed the Masters of his substantial changes only one

or two days before he distributed his revisions to the

parties. He then spoke with the Masters and provided them

with a copy of his plan. He indicated that they might make

comments but told them that the revisions he had made in

their carefully thought-out district boundaries were already

printed and could not be changed. Under those cirecum-

stances, the Masters did not see fit to comment further.

The next morning, the District Court held a one day

hearing on its plan, which the parties had been able to con-

sider only overnight. Ultimately, on May 10, 1975, the Dis-

trict Court issued its final plan, which was in all significant

respects identical with its proposed plan.

(b) Differences from the Masters’ Plan. The plan issued

by the District Court differed from the Masters’ plan in a

number of respects. The critical difference was that the

District Court restructured the geographic districts recom-

mended by the Masters, combining two districts and chang-

ing the boundaries of four others. The District Court

claimed that this restructuring was necessary because, after

the Masters had rendered their recommendations, the

School Committee provided an updated data base for deter-

mining the race of students in the various districts.** (In

fact, as the tables at pages 23 and 25, infra, show, the revised

statistics were not demonstrably more accurate than those

According to the District Court, this new data showed that

in two of the districts drawn by the Masters. the white enrollment

was underestimated; that in another of the Masters’ districts, the °

black enrollment was significantly underestimated; and that the

number of students in the system was underestimated. (App. 74a-

75a).

upon which the Masters had based their plan.)** The Dis-

trict Court did not request the Masters to reconsider their

plan to see if these new statistics would require any

changes, or even to monitor the revised statistics to check

their accuracy. Nor did the District Court merely make

minor technical revisions in the Masters’ plan to compen-

sate for the new data. Instead, the District Court simply

redrew the plan itself, and in the process ignored the careful

efforts of the Masters to locate boundary lines so as to

preserve community ties where possible.

The plan, as redrawn by the District Court, required the

busing of at least 21,000 students for desegregation pur-

poses—6,000 or 40% more than required by the Masters’

plan. The District Court may have believed that such

additional busing was necessary in light of the revised

statistics, but it made no specific findings in that regard.

In fact, as described in detail at pages 22-26, infra, the

amounts of desegregation produced by the District Court

plan and promised by the Masters’ plan were comparable.

Mayor and others attempted to impress upon the District

Ceurt the importance of considering the amount of busing,

cost, community acceptance, and resegregation problems in

choosing between the court’s plan and the Masters’ plan

since both would produce satisfactory desegregation. The

District Court, however, refused to consider any of these

factors. The one-page portion of the District Court opinion

*® The only evidence as to the effect of the new statistics was

the deposition testimony of John Coakley, the School Committee’s

Chief desegregation planner. Mr. Coakley testified that the new

data were not significantly different from the data upon which the

Masters’ plan was based. Coakley deposition, p. 51.

which dealt with ecst considerations merely stated that

busing would cost approximately $7.6 million a year and

that closing a number of schools would save fuel and main-

tenance expense. (App. 102a-03a). The court refused to

admit any evidence as to community acceptance of the two

plans or possible resegregation of the school system on the

ground that resistance to desegregation is irrelevant in

considering remedy. (App. 71a-72a).

Finally, although the District Court made a number of

findings as to the need for busing, in an effort to comply

with the Equal Educational Opportunities Act of 1974, 20

U.S.C. §§ 1701 et seq., the court never made any finding that

the busing it ordered of 6,000 additional students was re-

quired to achieve desegregation. (App. 10la-02a). In fact,

the District Court explicitly refused to consider whether

the Masters’ plan was a constitutionally satisfactory remedy

and specifically stated that constitutional considerations

were “only secondary” in its decision to make the changes

in the Masters’ plan which resulted in this additional bus-

ing. Transcript of April 15, 1975, hearing, pp. 7-8, 32.

9. The District Court’s Plan Imposed Substantial Addi-

tional Burdens But Did Not Achieve Greater Desegregation

Than the Masters’ Plan. As a result of the District Court’s

refusal to consider the practicalities of the situation, Boston

is now operating under a plan which achieves no more de-

segregation than the Masters’ plan, but which requires a

great deal more busing and substantial additional expense

and which has been less acceptable to the community than

the Masters’ plan. The following table compares racial per-

centages by district of the Masters’ plan and the District

Court’s plan with those actually achieved.

As can be seen from the table, the District Court plan

did in some instances propose to balance the racial per-

centages of students by district slightly more precisely

than did the Masters’ plan. In fact, however, the student

percentages are now in most instances closer to those pro-

posed by the Masters than to those proposed by the District

Court. Furthermore, under the Masters proposal three

school districts would have been more than 50% white, and

no school districts would have been more than 50% black,

while under the District Court’s plan there are still three

districts more than 50% white and, in addition, two districts

are more than 50% black.

othe

BOSTON PUBLIC SCHOOL

ENROLLMENTS

Actual Attendance under

District Court Plan Court Plan (2-6-76)

Master's Plan

Other

Black

White

Other

Black

White

Other

Black

White

382% 27%

35%

22%

35%

Ss 4

31% 20%

49%

Brighton

47% 19%

342

15%

42%

25% 43%

37%

38%

Jamaica Plaia

50%

48%

Hyde Park

52% 4%

41% 442%

17% 62

77%

West Roxbury

41%

49%

Dorchester

Burke

29%

382%

13%

512

14%

35%

9% 512

33%

582

South Boston

26%

42%

32%

252%

46% 17%

37%

Madison Park

94%

x 2%

95%

East Boston

362 122%

522

16% we /

48%

Citywide

43% 122

45%

11%

14%

50%

TOTAL

portion of the table are based upon school population resident in the

The District Court made no adjustment to compensate for students resident in the dis-

trict bet attending city-wide schools.

*/ All the statistics in this

district.

aa/

The court proposed to have the city-wide district reflect city-wide school racial percentages but

did not tabulate precise racial data for this district.

Moreover, as demonstrated by the following table, the

District Court’s final plan may actually have achieved less

desegregation than did the Masters’ plan with respect to

individual schools. It is certainly clear that the Court’s

plan was not a significant improvement over the Masters’

plan in this regard. But although there was little differ-

ence in the amount of the desegregation accomplished by

the Masters’ and District Court plans, the social and eco-

nomic costs borne by the people of Boston as a result of

the District Court’s refusal to adopt the Masters’ proposal

have been great.

BOSTON SCHOOL SYSTEM. COMPARISON BETWEEN

PRE-DESEGREGATION, MASTERS’ PLAN, AND DISTRICT

COURT ACTUAL RACIAL COMPOSITION BY SCHOOL

PHE-DIESIOREGATION PLAN

Schoo] population 61% white

~-=32% black--78 other minority

84% of white students in schools

more than @uU* white

62% of black students in schools

more than 708 black

23 total high schools

2 high schools within 10% of

system's racial distribution

6 high schools over 90% white

1l high schools over 65%

white

2 high schools over 90% black

4 high schools over 508 black

JUNIOR HIGH AND MIDDLE SCHOO

ee/

MASTERS PLAN

SYSTIN-W1 DI"

Schoo) population 50% white

--36t black--14¢ other

minority

148 of white students in

schools more than 80% white

(mainly Tast Roston)

No black students in schools

more than 70% biack

HIGH SCHOOLS

22 total high schools

16 high schools within

10% of system's racial

distribution

1 high school over

908 white

1 hagh school over

65% white

No high school over

90% black

No high school over

50% black

—-

19 total schools

4 schools over 90% black

7 schools over 60% black

6 schools over 808 white

2 schools within 20% of the

black citywide percentages

140 elementary schools

62 schools under 5% black

32 schools over 865% hlack

5 schools with racial composi-

tion within 10% of black

citywide percentages

Date on numier of schools with

racial compositions within

1$% of citywide percentages

unavailable

29 cotal schools

No schools over 90% black

No schools over 60% black

1 school over 80% white

17 schools within 20% of the

black citywide percentages

ELEMENTARY SCHOOLS

115 elementary schools

9 schools under St black

(all in Fast Boston)

No schools over 85% black

73 schools with racial

composition within 108

of black citywide

percentages

83 schools within 15% of

black citywide percentages

DISTRICT COURT

PIAN®®*/

School population 45%

white--43€ black--1l2t

other minority

128 of white students

in schools more than

BON white (mainly

East Roston)

10 of black students

in schools more than

70% black

19 total high schools

7 high schools within

108 of system's racial

distribution

1 high school over

90% white

1 high school over

65% white

No high school over

90% black

1 high school over

$08 black

28 total schools

No schools over 90%

black

3 schoois over 60%

black

4 schools over 60%

white

23 schools within 200

of the black citywide

percentages

117 elementary schools

6 schools under 58

black (all in East

Boston)

1 school over 865% black

$7 schools with racial

composition within Lot

of black citywide

percentages

71 schools within 15%

of black citywide

percentages

TT Rast Por We TV oe he 1971-72 school year set forth by the District

Court in ats liabality opinion,

179 F. Supp. at 424,

e*/ fased on the data set forth in the Masters’ pian for the 1975-76 school

year. (M. K., Appendix E).

acid

by Bocc, Ccehoo) ard Level as

wy 9, 19%6),

fased on the data set forth in Roseton Public Schools, Actual Prrollments

of February 6, 1976 (submitted by the School

Committee te the District Court on Febr:

Community resentment toward the replacement of the

Masters’ plan with the District Court plan has heightened

social and racial problems in the City and resulted in a

decline in enrollment in the schools.

Boston Scuoot District—TotraL ENRoLLMENT

Total White Black Other

1974-75" 72,249 36,735 (51%) 27,225 (38%) 8,289 (11%)

1975-76" 67,383 30,629 (45%) 28,706 (48%) 8,048 (12%)

As shown by this table, the school system has lost nearly

5,000 students, approximately 8% of its total enrollment,

since the imposition of the District Court plan. The white

school population has dropped by over 6,000. The school

system has changed from a majority white to a majority

nonwhite system in one year.

Moreover, despite the decline in enrollment, the School

Committee’s budget has increased by 20% from $126.6

million to $154.6 million during the past year. (See table,

page 11, supra). A very large part of this increase is due

to the expenses of the desegregation plan.

10. The Court of Appeals Affirmed the District Court

Decision. Although the court issued a lengthy opinion, its

treatment of the important issues raised by this petition

was cursory. With regard to the redrawing of the district

lines, the Court of Appeals indicated only that the effect

of the District Court’s alterations in the Masters’ plan

was unclear in light of the new data developed by the

' These are the April 10, 1975, statistics referred to by the Dis-

trict Court in its opinion. (App. 74a).

* These statistics are taken from Boston Public Schools, Actual

Enrollments by Race, School, and Level as of February 6, 1976

submitted by the School Committee to the District Court on

February 9, 1976).

School Committee. (App. 15a, n.14). The Court of Ap-

peals went on to hold that, even if the District Court plan

did bus 6,000 additional studeuts, the District Court did

not abuse its discretion by requiring that additional busing.

(App. 18a-20a).

The Court of Appeals next held that resegregation, white

flight and community acceptability are not “practicalities”

which may be considered in formulating “the greatest

possible degree of actual desegregation” as required by

this Court’s decision in Davis v. Board of School Commis-

stoners, 402 U.S. 33, 37 (1971). (App. 19a, 29a-32a). In

making this decision, the court did not consider actual

statistics of the sort which have been reprinted in this

petition at pages 23 and 25, supra, nor did the court dis-

tinguish the factors which may be considered in framing a

constitutionally-required remedy from those which may

appropriately be considered in choosing between two con-

stitutionally sufficient remedies.

The Court of Appeals next dismissed any problems of

cost by asserting that “virtually the entire expense of any

incremental busing is fundable by the State Board of Edu-

cation.” (App. 19a). (In fact, it appears that the State

Board is only willing to reimburse Boston for less than

60% of the cost of busing incurred under the desegrega-

t.on plan, if the legislature makes the funds available.)

The court did not consider any other costs imposed by

the plan.

Finally, the court rejected the Mayor’s contention that

the Equal Educational Opportunities Act of 1974 precluded

the District Court from adopting a plan which required

more busing of school children than necessary to achieve

te rtrti—C—SSCOCW

constitutionally sati=factory school desegregation. The

court held that, once the District Court had feund that

some busing was necessary, the Act did not limit the Dis-

trict Court’s discretion to order any amount of busing it

chose. (App. 15a-19a). The Court of Appeals reached this

result despite the evident contrary meaning of the statu-

tory language and despite the court’s recognition that its

holding rendered the Act meaningless.”

REASONS FOR GRANTING THE WRIT

1. This case raises, for the first time in this Court, the

issue whether courts are required by law to ignore such

factors as the amount of busing, cost, community accep-

tance, and potential for resegregation in choosing between

clearly satisfactory but different plans to remedy urban

school segregation. The resolution of this issue is im-

portant, not only to the City of Boston, but also to the pros-

pects for achieving meaningful desegregation elsewhere

and for avoiding excessive and needless social and financial

burdens on the nation’s hard-pressed cities.

As the facts set forth above demonstrate, there was very

little difference in potential for desegregation between the

Masters’ plan and the District Court plan. Neither of the

courts below found that the Masters’ plan would have been

constitutionally insufficient to remedy the segregation im-

posed by the Boston School Committee, and the Court of

** “Since this argument [that the Act precluded the District Court

from ordering more busing than constitutionally required]

concerns the district court's discretion in determining the

adequacy of the remedy, and therefore gains nothing from

the Act which leaves that discretion unaffected, it must stand

or fall upon those traditional principles of equity which would

govern this issue even were the Act not in existence.” (App.

17a-18a).

ee ne,

Appeals recognized that it could reach no such conclusion.”

Indeed, many circuit courts have approved school desegre-

gation plans which resulted in significantly less desegrega-

tion than did the Plan proposed by the Masters.** Thus

the District Court had before it two plans—the Masters’

and its own, described in detail earlier—either of which

would have eliminated the vestiges of state imposed segre-

gation “root and branch” as required by this Court’s deci-

sions. Keyes vy. School District No. 1, 413 U.S. 189, 200

(1973); Davis v. Board of School Commissioners, 402 U.S.

33, 37 (1971); Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 15 (1971).

Nevertheless, the courts below refused to consider any

factors relating to comparative costs, busing requirements,

community acceptance, or possible resegregation of the

20The District Court explicitly refused to consider this issue,

although the judge did state that in choosing between the Masters’

plan and the District Court plan “constitutional considerations

|were] only secondary. ...” Transcript of April 15, 1975, hearing

pp. 7-8, 32. The Court of Appeals at least posed, although it did

not answer, the question whether the District Court could reason-

ably have found that whatever additional desegregation would be

accomplished by its plan was constitutionally required. (App.

19a). The Court of Appeals concluded that the differences between

the Masters’ and District (Court plans were “slight” but “not

trivial.” The court then stated that “the concept of minimum

[constitutionally required desegregation] cannot be identified with

precision” and indicated that it was not possible to determine if

any differences between the Masters’ plan and the District Court

plan were of constitutional significance. (App. 20a).

*1 E.q., Northceross v. Board of Education, 489 F.2d 15, 16-17

(6th Cir. 1973), cert. denied, 416 U.S. 962 (1974) (Memphis) ;

Goss Vv. Board of Education, 452 F.2d 1044 (6th Cir. 1973), cert.

denied, 414 U.S. 1171 (1974) (Knoxville); Ross v. Eckels, 434

F.2d 1140, 1147-47 (Sth Cir. 1970), cert. denied, 402 U.S. 953

(1971) (Houston); Pate v. Dade County School Board, 434 F.2d

1151, 1154 (5th Cir. 1970), cert. denied, 402 U.S. 953 (1971)

(Miami); Cerr v. Montgomery County Board of Education, 377

F. Supp. 3128 (M.D. Ala. 1974), aff'd per curiam, 511 F.2d 1374,

reh. denied, 511 F.2d 1390 (Sth Cir. 1975) (Montgomery).

Boston schools in choosing between the Masters’ and the

District Court plans. In support of their conclusion, the

courts below relied on this Court’s decisions which have

held that factors such as community acceptability, cost, and

the like cannot be used as reasons for achieving less than

a complete uprooting of a dual schoo! system. F.g., United

States v. Scotland Neck City Board of Education, 407 U.S.

484, 490-91 (1972); Venroe v. Board of Commissioners, 391

U.S. 450, 459 (1968). But that, of course, was not the

issue in the present case. Here there is no attempt to avoid

constitutionally mandated desegregation. Rather, the ques-

tion is simply if such factors as the extent of busing, cost,

community acceptance, and resegregation can and should

be considered by a court in determining which of two con-

stitutionally satisfactory but differing plans should be

adopted.

The Mayor submits that such factors must be considered

in choosing between constitutionally adequate alternatives

if cuurts are to take “into account the practicalities of the

situation” in adopting “realistic” and “effective” school

desegregation plans. Davis vy. Board of School Commis-

stoners, supra, 402 U.S. at 37; Swann vy. Charlotte-Mecklen-

burg Board of Education, supra, 402 U.S. at 31. For ex-

ample, this Court has previously recognized that it is ap-

propriate to consider resegregation or “white flight” where

that is relevant to preserving a desegregated school svstem.

Wright v. Council of the City of Emporia, 407 US. 451,

464-65, 470 (1972); Milliken v. Bradiey, 418 U.S. 717, 801-

02 (1974) (Marshail, J., dissenting). The lower courts

have reached the same conclusion. Spangler v. Pasadena

Board of Education, 519 F.2d 430, 438 (9th Cir.), cert.

granted, 96 8. Ct. 355 (1975): Johnson vy. San Francisco

Unified School District, 339 F. Supp. 1315, 1321-22 (N.D.

Cal. 1971), vacated on other grounds, 500 F.2d 349 (9th

Cir. 1975). See also Higgins vy. Board of Education, 508

- F.2d 779, 794 (6th Cir. 1974).

This Court’s command in Swann and Davis that school

plans accomplish effective desegregation in light of the prac-

ticalities of the situation is derived from the traditional

equitable principle that courts must weigh the benefits and

harms to the parties and the public interest in choosing

from among alternative adequate forms of relief. Swann

vy. Charlotte-Mecklenburg Board of Education, supra, 402

U. at 30-31; Brown vy. Board of Education II, 349 US.

994, 300 (1955). Moreover, this Court has repeatedly em-

phasized that in the exercise of remedial powers in cases

such as this, the courts must take particular care in view of

the “delicate issues” of the relationship of the federal

courts to state and local government. Rizzo v. Goode, 44

U.S.L.W. 4095, 4101 (January 21, 1976); Mayor v. Educa-

tional Equality League, 415 U.S. 605, 615 (15974).

As noted previously, the Masters had taken particular

care to maximize desegregation and educational benefits

and, insofar as consistent with these objectives, to mini-

mize community disruption and busing. But, as was also

described above, the courts below believed that they could

not consider the amount of busing, cost, community accep-

tance, or resegregation as “practicalities.”

The decision of the courts below in this regard is incon-

sistent with the decisions of this Court and contrary to

common sense. As the District Court’s own experts indi-

cated in the proceedings below, courts cannot blind them-

selves to everyday realities in choosing between two per-

fectly permissible and constitutionally adequate remedies.

School systems work only to the extent that students and

parents cooperate in making them work. Desegregation is

meaningful only so long as students of all races remain

in the schools and only so long as they find there a quality

education for all. As deseribed earlier, Boston is afflicted

with many of the urban financial and social problems which

are so readily exacerbated when such factors are ignored.

While these considerations are irrelevant in determining

if a particular remedy passes constitutional muster, they

are critical to a court decision to choose between two ade-

quate, but different, plans. The courts below, under a mis-

conception of the requirements that this Court has set

forth in Scotland Neck, Monroe, and Swann, supra, im-

properly refused to consider the extent of busing, cost,

community acceptance or potential for resegregation in

determining whether to adopt the Masters’ plan or the

plan drawn up by Section 5 of the District Court.

2. This Court has never interpreted the Equal Eduea-

tional Opportunities Act of 1974, 20 U.S.C. §§ 1701 et seq.

In view of the Act’s important social judgments, i.s passage

under the specific authority granted Congress by Section 5

of the Fourteenth Amendment, and its evisceration bv the

decisions below, consideration of the Act by this Court is

appropriate.

In Swann vy. Charlotte-Mecklenburg Board of Education,

supra, 402 U.S. at 14, this Court found that remedies for

school segregation have been “imperfect” and “incomplete.”

The Congress made the same finding in enacting the Equal

Educational Opportunities Act of 1974, 20 U.S.C. § 1702

(a)(6). In passing the Act, Congress, without attempting

to diminish the authority of the courts to remedy viola-

tions of the Fifth and Fourteenth Amendments of the Con-

stitution, undertook to “specif. appropriate remedies for

the orderly removal of the vestiges of the dual school sys-

tem” and to establish a priority for the imposition of such

remedies. 20 U.S.C. §§ 1701(b) and 1713. The priorities for

desegregation remedies under the Act are as follows:

(a) Assigning students to the closest school to their

place of residence ;

(b) Majority to minority transfers;

ments to the second closest school to the student’s place

of residence;

(d) Construction of new or closing of old schools;

(e) Establishment of magnet schools;

(f) Development and implementation of any other

plan, including busing. 20 U.S.C. § 1713.

Congress did not attempt to prohibit busing of students,

but it did conclude that busing was the least educationally

satisfactory remedy and should be used only where other

remedies for de jure segregation did not work. 20 U.S.C.

§ 1755. Finally, Congress specifically prohibited the imposi-

tion of remedies more drastic than necessary to correct

segregation. 20 U.S.C. §1712. The Act thus seeks to limit

the imposition of busing to the minimum necessary to

achieve a constitutional remedy.

The courts below held that the Act did not in any way

limit the District Court’s discretion to impose any remedy

it preferred once it had found that some busing was neces-

sary. This renders the Act meaningless, as the Court of

Appeals explicitly recognized. (App. 18a-19a). In the ab-

sence of the Act, it was arguable that the District Court had

discretion, after a consideration of all relevant factors, to

adopt a plan which required more busing even though a plan

using other techniques would have required less busing. The

Equal Educational Opportunities Act specifically removes

that discretion. See 20 U.S.C. § 1712. In the present case,

where neither the District Court nor the Court of Appeals

found that the Masters’ plan, with less busing, was consti-

tutionally inadequate,” the Equal Educational Opportu-

nities Act precluded the District Court from adopting a

plan which required busing of 6,000 additional children.

The Act fills a grave need for a satisfactory legal fraine.

work to enable courts to define proper limits for busing.

Those who support busing suggest that busing is necessary

as a remedy for segregation and will result ultimately in

better education and better social] conditions for all stu-

dents. Those who oppose busing point out that there is

increasing evidence that it disrupts educational systems, in-

terferes with the provision of quality schools, and may

precipitate resegregation. Both theories have the support

of eminent educators and sociologists, but both theories are

lacking in definitive proof. Under these circumstances, it

is perfectly appropriate for Congress to make a social judg-

ment in establishing the legal framework for busing.

Congress therefore made an entirely legitimate judgment

when it considered the possible dangers to important indi-

vidual and social interests and adopted the Equal Educa-

tional Opportunities Act of 1974. Congress determined that,

because of these dangers, in choosing between satisfactory

alternative plans to remedy the ills of racial segregation in

the public schools, the courts should choose the plan which

requires least busing. Section 5 of the Fourteenth Amend-

22 See the discussion at page 29, n.20, supra. -

ment specifically authorizes Congress to make judgments of

this type. Under these circumstances, “it must be remem-

bered that legislatures are ultimate guardians of the liber-

ties and welfare of the people in quite as great a degree

as the courts.” Missouri Kansas and Texas R. Co. v. May,

194 U.S. 267, 270 (1904) (Holmes, J.). See also United

States v. Richardson, 418 U.S. 166, 189 (1974) (Powell, J.,

concurring). The courts below should not be permitted to

ignore the important Congressional judgment embodied in

the Act.

CONCLUSION

The constitutional and statuiory standards which guide

lower courts in the fashioning of urban schoo! desegregation

remedies are in urgent need of clarification by this Court.

The issues raised by this petition concerning such standards

are central to the hope for workable, long-lasting desegrega-

tion and continued viability of the major cities. These issues

are therefore of major importance not merely to Boston

but to the urban areas across the country. For the reasons

set forth above, this Petition for Certiorari should be

granted.

Respectfully submitted,

Ropert E. HerzstTe1n

Davip BonpDERMAN

1229 Nineteenth Street, N.W.

Washington, D.C. 20036

Herpert P. GLEASON

Corporation Counsel

Kevin F. Motoney

Assistant Corporation

Counsel

Law Department

City Hall

Boston, Massachusetts 02201

Attorneys for Petitioner

Of Counsel:

ARNOLD & PORTER

Washington, D.C.

April, 1976

APPENDICES

A. Opinion of the Court of Appeals

United States Court of Appeals

For the First Circuit

Nos. 75-1184, 75-1194,

Nos. 75-1197, 75-1212

TALLULAH MORGAN, et al,

PLAINTIFFS, APPELLEES,

JOHN J. KERRIGAN, et al.

DEFENDANTS, APPELLANTS,

BOSTON HOME AND SCHOOL ASSOCIATION,

DEFENDANT-INTERVENOR, APPELLANT,

KEVIN H. WHITE, etcz., et al.,

DEFENDANTS, APPELLANTS.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hos. W. Agtuer Garrity, Jr., U.S. District Judge)

Before Corrin, Chief Judge,

McEstee and Camppeuy, Circuit Judges.

Matthew T. Connolly, with whom Francis J. DiMento, James J. Sullivan, Jr.,

Pailip T. Tierney, aud DiMlento & Sullivan were on brief, for John J. Kerrigan,

€: al.

Eevcia F. Moloney for Kevin White et al.

Thayer Fremont-Smith with whom Owen S. Walker, Choate, Hall & Stewart,

acd Philip B. Kurland were on brief, for Boston Home and Schooi Association.

John Leubsdorf, with whom Laurence S. Fordham, Foley, Hoag & Eliot,

J. Harold Flannery, Rudolph F. Pierce, Keating, Perretta & Pierce, Thomas M.

Simmons, Robert l’ressman, Erie E. ban Loon, Nathaniel BR. Jones, and Boger

I. Abrams were on brief, for Tailulah Morgan, et al.

Timothy J... iFise, Assistant Attorney General, with whom Francis XY. Bel-

lotti, Attorney General, Margot Botsford, Assistant Attorney General, and

Seadra L. Lynch, General Counsel, State Board of Education were on brief, for

S:ate defendants.

2 MORGAN U. KERRIGAN

Richard Iiiler, with whom Jack Johan Olivero, Terbert Teitclbaum, Michael

Hlare:, dcan Mirer, and 'amela Taylor were on brief, for El Comite De Padres

Pro Defensa De Education Bilingue.

January 14, 1976

Corrin, Chief Judge. These appeals present varied chal-

lenges to orders of the district court implementing a plan of

desegregation for the publie schools of Boston. The consoli-

dated cases concern the remedy phase of litigation initiated

by plaintiffs-appellees, representing a class of all black

public school students and their parents, against, princi-

pally, the Boston School Committee and the Superintendent

of Boston Public Schools. The liability phase came to an end

in 1974 with a district court finding of substantial segrega-

tion in the entire school system intentionally brought about

and maintained by official action over the years. Morgan v.

Hennigan, 379 F. Supp. 410 (D. Mass. 1972).1 We affirmed,

Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), and the

Supreme Court denied certiorari, 421 U.S. 963 (1975).

While the liability issues were being considered on appeal,

the district court. after its decision on June 21, 1974, began

its exploration of appropriate remedies. The period from

June, 1974, to May, 1975, was occupied with the addition of

prties to the litigation,? hearings as to the nature, scope and

1 The court specifically found that sezregative policies had operated in the

following respects: in the utilization of facilities and planning of new struc-

tures; in drawing and redrawing schoo! district lines; in developing feeder pat-

tcrus determining enroliments at specific high schools; in the open enrollment

policy, the subsequent controlled transfer policy and the exceptions thereto;

in the hirinz, promotion, and assiznment of b'ack faculty and staff. Because of

the operation of the second presumption in Keyes v. School District No. 1, 413

U.S. 159, 208 (1973), which it found had not been rebutted, the court also held

that oficial intentional segregation infected the elite, citywid examination

schools and vocational schools and programs.

2 The original purties, in addition to the plaintiffs and the Boston defendants,

included the State Board of Education (nominal defendants, although support-

ing the court’s order and appelice here). Subsequently allowed to intervene

were the Boston Teachers Union, the Boston Association of Schoo! Administra-

tors and Headmasters, the Boston Home and School Association, and E] Comite

Ibe Padres Pro Dcfense De La Education Bilingue. The Commissioners of the

OPINION OF THE COURT 3

objectives of a plan, submission and criticism of various

plans, consideration of all proposals and preparation of a

plan by u panel of masters, and, finally, the issuance of

a revised plan by the district court on May 10, 1975, followed

by a Memorandum Decision and Remedial Order. Morgan v.

Kerrigan, 401 I’. Supp. 216 (1). Mass. 1975). On June 17,

1975, we denied appellants’ motion for a stay pending

appeal, Morgan v. Kerrigan, 523 I’.2d 917 (1975), but devised

a consolidated and expedited briefing schedule, in which all

parties have faithfully cooperated. During the summer of

1975 the court, counsel, school officials, teachers, parent or-

ganizations, and federal, state, and city agencies and officials

worked intensively to prepare for the September school

opening in compliance with the district court’s order, com-

monly referred to as Phase II.3 The schools are now func-

tioning in accordance with the court’s plan and orders.

The issues to be considered here are both procedural and

substantive and require some further background of events.

After hearings during the summer and early fall of 1974, the

district court, on October 31, 1974, entered an order estab-

lishing guidelines and date (December 16) for a plan of

desegregation to be filed by the School Committee. Such

a plan was prepared by the staff but, on the deadline date,

Public Facilities Commission, the Direetor of the Public Facilitics Department,

and the Mayor of Boston (hereinafter, collectively, the Mayor) were joined as

parties defendant.

3 Following the determination on liability in 1974, the district court ordered

the implementation of a plan devised by the state for the 1974-1975 school year.

This pian was commonly referred to as Phase I. See 379 F. Supp. at 483.

* The order provided that the ‘‘starting point’’ for its desegregation decree

would be that ‘‘the racial composition of the student body of every school should

generally reflect the ratios of white and black students enrolled at that grade

level of : schools, elementary, intermediate, and secondary, throughout the

system.

BEST COPY AVAILABLE

4 MORGAN UV. KERRIGAN

the School Committee voted not to submit it.5 It was, how-

ever, filed by the Committee’s counsel. This plan called for

six districts, with varying learning approaches available

within each district, and ‘‘magnet’’ or special purpose high

schools, but left with parents the choice of schools for their

children.

On January 20, 1975, plaintiffs submitted a plan, accepting

the six districts identified in the staff plan of December 16,

1974, but proposing a mandatory allocation of students

among the schools to achieve minority enrollments that were

neither too small (e.g., a minimum of 29.4 percent in element-

ary schools) nor too large (e.g., a maximum of 60.6 percent

in elementary schools).

Also on January 20, 1975, the Boston Home and School

Association (Association) filed a plan which was based on

the theory that segregation in certain schools was the result

of ‘‘existing residential separateness’’ and a policy of neigh-

borhood school assignments, rather than of any official ac-

tions of the Schoo] Committee. To support its approach, the

Association offered evidence of demographic patterns, which

the district court refused to accept on the grounds that the

evidence was irrevelant at the remedy stage of the case and

that the issue raised by the offer had been litigated and

finally decided in the liability phase of these proceedings.

The court’s refusal to consider the Association’s plan is not

in issue, but the Association’s contention that the court

should reopen the proceedings to consider, for purposes of

tailoring remedies, the impact of demographic conditions on

particular schools is one of the principal issues before us.

6 This action by the School Committee led to contempt proceedings and a

finding by the district court that three members were in continuing contempt

of the order of October 31, 1974. This court denied a stay pending appeal of

the civil contempt order. Morgen v. Kerrigan, 509 F.2d 618 (1st Cir. 1975).

Subsequently, the district court found that they had purged themselves, aud,

ult mately, on January 27, 1975, the School Committee did submit a plan, differ-

ent from the staff proposal filed by counsel.

OPINION OF THE COURT 5

The School Committee’s plan, finally submitted on January

27, 1975, see note 5 supra, also kept the six districts or zones,

and allowed parents several options, ranging from electing

to have their child remain in a racially mixed school, to

choosing a citywide or zoned magnet school, to any school

within the zone. Should the school chosen by the parents be

dominantly black or white, the desegregative remedy would |

be a once-a-week (for elementary schools) or a once-every-

two-week (for middle level schools) visit by paired black and

white schools to a ‘‘third site’’ resource center for training

and experience in race relations.

With these three plans on the table, the court appointed

two experts to assist in evaluating plans and a panel of four

masters to consider the plans— commencing with the School

Committee’s January 27 plan — hold hearings, and ‘‘make

recommendations to the Court’’.6 The masters held hearings

for over two weeks, and, after hearing argument addressed

to a draft report, issued their final report on March 31, 1975.

The masters found the School Committee plan inadequate,

in large part because of its reliance on parental free choice;

rejected plaintiffs’ plan as being educationally deficient,

unwieldly and arbitrary; rejected the December 16 plan as

being vague and unduly burdensome to minorities; and

proposed a ten district system, one being a citywide district

with magnet schools and specially appealing programs, with

each of the other nine districts and some of the magnet

schools being paired with specific colleges, labor and busi-

6 An objection was made by the Schoo] Committee to the naming of two of the

masters on the ground that their association with the Harvard University Grad-

uate School of Education constituted a disqualifying interest in the Harvard

Center for Law and Education, which presently or formerly employed three

attorneys representing plaintiffs. The Schoo: Committe: ‘o objected to the

appointments of a third master and one expert because . had in the past

supported the NAACP, which had provided financial] assistance and ccunse! te

the plaintiffs. The issue arising from the overruling of these objections will be

dealt with later in this opinion. So also will be a further objection of the School

Committee to the court’s order awarding compensation to the masters.

6 MORGAN UV. KERNICGAN

ness organizations for assistance in program enrichment.

Mandatory busing was estimated by the masters to affect

10,700 to 14,900 students.

The court then called for hearings on objections to the

masters’ report, which commenced on April 10. In the mean-

time, the court had called for updated enrollment data from

the School Committee. The court issued its Draft Revision

of the Masters’ Report on April 17, heard comments on April

18, and issued its desegregation plan on May 10. Its plan

reduced the number of districts from the ten recommended

by the masters to nine, redrew district lines, and reflected —

on the basis of the new data — less racial disparity generally

in school assignments than did the masters’ plan. The plan

not only precisely set forth the new districts but called for

changes in the school system’s administrative hierarchy, and

established a system of community participation in district

and citywide councils. The mandatory busing estimated by

the court would affect 21,000 students. During this time of

accelerated activity, the court also appointed an ad hoe com-

mittee of three attorneys to assist in obtaining support from

colleges and universities, and ordered that school personnel

meet and confer with personnel from the designated college

or university. Late in June the court authorized the court-

‘ appointed experts to resolve some remaining issues relating

to facilities utilization, program allocation, and enrollment

limits. Each of these actions by the court has been chal-

lenged, as well as the court’s plan itself.

This skeletal recitation of chronology masks a year of in-

creasingly intensive activity in collecting and updating data,

preparing, evaluating, and amending plans embracing a wide

variety of approaches, and, finally, devising procedures and

taking action to put into effect a plan calling for a dramat-

ically different educational system affecting some 80,000

students. The pressures of time, the problems of developing

OPINION OF THE COURT. 7

reliable data, the clash among radically differing approach-

es, the resistance of the Schoo] Commitice, the sheer numb-

ers of parents, students, teachers, and administrators to be

informed and oriented were all part of the massive problems

of implementation.

While we appreciate the labors that have taken place by all

concerned, we also appreciate the necessity of giving the

most careful consideration fo the issues before us. Some are

of large significance. Some are of little moment. For pur-

poses of clarity, we summarize them, not necessarily in terms

of importance, but in terms of their breadth and specificity.

A. Broad challenges to the court’s plan.

1. The School Committee contends that its free choice-

third site plan was constitutionally sufficient and should

have been adopted.

2. The Mayor contends that, the masters’ plan being con-

stitutionally sufficient, the Equal Mducational Opportunities

Act of 1974, 20 U.S.C. $1701 et seg., deprived the court of

power to issue its own plan.

3. The Association contends that the court’s plan was

erroneous because the court did not confine the remedy to

climinating the demonstrable effects of the School Comunit-

tee’s unlawful actions.

4. The Association, the Mayor, and by implication, the

School Committee, contend that the court’s plan is defective

in not having given weight to the impact of the departure of

white students to other schools outside the Boston school

system.

B. Detailed challenges to the court’s plan.

1. The School Committee and the Association contend

that the court erred in a mechanical resort to ratios. The

Mayor and the Association object particularly to the use of

ratios in effecting minority assignments to the high standard

examination schools.

5 MORGAN VU. KERRIGAN

2. The School Committee challenges the appointment of

three masters and one expert and objects to the compen-

sation of all four masters.

3. The School Conunittee objects to the court’s enercach-

ment on its functions:

a Inspecifying magnel programms;

b, In requiring the participation of colleges and

universities ;

ce. In requiring the systematic involvement of a City-

wide Coordinating Council and Community District

Advisory Councils;

d. In requiring the hiring of additional supervisory

personnel; and

e. In giving supervisory power to court-appointed

experts.

A. Broad challenges to the court’s plan.

our sweeping criticisms have been leveled ot the court’s

plan. The simplest is that the School Committee’s plan

passed constitutional muster and the court could not justi-

fiably require more. A similar argument, taking another

point of reference, is that since the masters’ plan was con-

stitutionally sufficient, the court could not, by reason of the

qual Educational Opportunities Act of 1974, require more.

The remaining two broad scale attacks do not assert a bar-

rier to going beyond any other plan but rely on the necessity

for making further inquiries into remedial issues before a

final plan is implemented. One type of prerequisite inquiry

would be to ascertain the prior impact of official segregative

action sc that the remedy could be restricted to removing

that impact. The other asserted prerequisite would be an

inquiry into the likelihood of ‘‘ white flight’’ so that a remedy

may he tailored which, by minimizing such flight, would

assure a maximum achievable co-education among the races.

OPINION OF THE COURT 9

1. Sufficiency of the School Committee’s Pian.

Upon a finding that a school system has been operated in

contravention of the equal protection clause of the Four-

teenth Amendment to the constitution, the burden falls upon

the loeal school authorities to present a plan of action to the

district court lo remedy the violations. Swann v. Charlulle-

Mecklenberg Board ef Education, 402 U.S. 1, 16 (1971).

Only on the default of the School Commitice to proffer an

acceptable remedial plan is the district court empowered to

fashion a remedy adequate to produce a unitary school

system. Jd. The threshold question, then, in reviewing the

district court’s action, is whether the rejection of the School

Committee’s plan of January 27 was proper.

In determining the acceptability of a proposed plan, the

district court must assess the effectiveness of the plan in

achieving desegregation. Green v. County School Board, 391

U.S. 430, 439 (1968). The district court, applying this stand-

ard, rejected the School Committee plan stating that it

‘*presented no more than a hope for desegregation in Bos-

ton’’. 401 i". Supp. at 229. On review, we conclude not only that

the district court’s assessment of the School Committee plan

was proper, but that if the district court had accepted the

January 27 plan, we would have been constrained to reverse.

See Keyes v. School District No. 1, 521 F.2d 465 (10th Cir.

1975) ; Jackson v, Marvell School District No. 22, 416 F.2d

380 (Sth Cir. 1969).

The pian submitted by the School Committee was, in sum-

mary, a freedom of choice plan supplemented by magnet

schools and third site resource centers. The school assign-

ment process was to be based upon a series of options avail-

able to the students and their parents. Starting with the

option to remain in the school attended in the previous year

if it had been desegregated under Phase I, the student could

choose in succeeding options to attend a citywide magnet

10a

10 MORGAN U. KERRIGAN

school, a zonal magnet school, a school in which his race is in

the minority, and finally, any school in the zone. At the end

of this five step, seven week process a review committee

would determine a course of action to deal with over-sub-

scribed schools.” In the event that schools remained ‘‘ racial-

ly isolated’’, defined by the school department as more than

a 15 pereent deviation from the racial ratio for that level in

the zone, the plan provided for mandatory student partici-

pation in resource center activities. The resource center

proposal called for integrated educational experiences at a

third site, once a week for elementary students, once every

two weeks for middle school students and a human relations

course for high seheo] students. The entire plan rested on

student and parental choice to desegregate the schools.

It is well established that freedom of choice plans to dese-

gregate school systems are not per se unconstitutional.

Green, supra. In order for such a plan to be constitutionally

acceptable, however, it must promise to be as effective in

achieving a unitary desegregated system as any alternative

and feasible plan. 7d. Freedom of choice has a long history

of failure in achieving desegregation both in the south,

Swann, supra; Monroe v. Board of Commissioners, 391 U.S.

450 (1968) ; Green, supra,8 and in other parts of the country,

7 According to this plan, various options were to be considered to deal with

oversubscribed schools. These included the use of temporary classrooms, and

extension of the school rear to increase capacity. The use of temporary class-

rooms to enable white scliools to operate in excess of their capacity was found

to be one of the bases of liability in this action. Morgan v. Hennigan, supra,

379 F. Supp. at 427-28.

8 Accord, Bivins v. Bibb County Board of Education, 424 F.2d 97 (5th Cir.

1970); United States v. Board of Education of Baldwin County, 423 F.2d 1013

(Sth Cir. 1970); United States v. Hinds County School Board, 417 F.2d 852

(Sth Cir. 1969); United States v. Jefferson County Board of Education, 417

F.2d 534 (5th Cir. 1969); Hall v, St. Iiclena Parish School Board, 417 F.2d 801

(5th Cir. 1969); Jackson v. Marvell School District No. 22 ,416 F.2d 380 (Sth

Cir. 1969); United Siates v. Lovett, 416 F.2d 386 (Sth Cir. 1969); Anthony v.

Marshall County Board of Education, 409 F.2d 1287 (Sth Cir. 1962); United

States v. Greenwood Municipel Separate School District, 406 F.2d 1086 (5th Cir.

1969).

lla

OPINION OF THE COURT ll

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) (Las Vegas) ;

Spangler v. Pasadena City Board of Education, 375 F. Supp.

1304 (C.D. Cal. 1974). To be sure, it may be argued that vol-

untary plans were less promising in the South than in the

North, as segregate:: dual systems were deeply entrenched

there, having had an express legal basis. Yet as the district

court’s findings indicate, Boston had gone far in the creation

of a de jure dual system. Boston, moreover, for ten years

had a policy of open enrollment, followed by a controlled

transfer policy riddled with exeeptions. In an earlier stage

of the present case the district court found that this policy

served to increase, rather than deercase, segregation in the

school system. Morgan v. IIennigan, supra, 379 F. Supp. at

449-59.

The School Committtce contends that its plan, although

founded on freedom of choice, held promise to achieve dese-

gregation due to the heavy reliance on magnet schools and

alternative program schools — some fifty in number. Like

freedom of choice, the use of magnet schools to achieve vol-

untary desegregation has failed elsewhere, Bradley v. Milli-

ken, 484 F.2d 215, 243 (6th Cir. 1974), rev’d on other

grounds, 418 U.S. 717 (1974) ; Kelly v. Guinn, supra; Spang-

ler v. Pasadena City Board of Education, supra; Dowell v.

Board of Education, 338 F. Supp. 1256, 1264 (W.D. Okla.

1972). Compare Hart v. Community School Board, 512 F.2d

37, 54-55 (2d Cir. 1975). Although Boston has had experi-

ence with one school which offered a specialized program and

achieved a racially mixed student body,? we must agree with

the district court that schools offering programmatic alter-

natives, while a useful supplement to an otherwise adequate

desegregation plan, could not realistically sustain the burden

9 The Trotter School was desizned to offer cultural enrichmert programs for

children from AFDC families. White students residing in AFDC homes from

outside the city of Boston made up part of the student body. 379 F. Supp. at 430.

12a

12 MORGAN UV. KERRIGAN

of achieving desegregation of the Boston city schools.10

Finally, the School Committee plan to remedy ‘‘ racial iso-

lation’’ with part-time integregated resource centers added

nothing to the effectiveness of the overall plan. The objective

sought to be achieved in a remedial plan is desegregation, not

interracial experience or racial balance. Milliken v. Bradley,

418 U.S. 717 (1974). Accordingly, similar part-time pro-

grams have been categorically rejected elsewhere, Keyes v.

School District No. 1, supra, 521 F.2d at 477-79; Arvizu v.

Waco Independent School District, 495 F.2d 499, 503 (5th

Cir. 1974); United States v. Texas Education Agency, 467

I’.2d 848, 859 (Sth Cir. 1972), and must be rejected here.

Against this historical background which promised failure

for every feature of the School Committee plan, it is incon-

eeivable that anyone, the School Committee members or the

court, could believe that the plan would be effective in elim-

inating and guarding against officially imposed segregation

in Boston.11 The district court, therefore, was clearly cor-

rect in declaring the School Committee in default of its obli-

gation to present a constitutionally adequate plan. It was

the district court’s unquestionable duty to utilize all the re-

10 The masters found:

‘*The magnet concept as devised by the Committee is unrealistic and

unworkable. Magnet programs could assist desegregation if they satisficd

certain conditions. They must be limited in number, and they must be care-

fully placed, so that the effect of the applications they attract is to pro-

mote desegregaion. The Committce Plan, which proposes the introduction

of many magnet programs, satisfies none of these conditions, and could not

possibly be put into operation by September, 1975.’’

11 Comments of a member, and of the then Chairman, are revealing:

‘*The plan is ‘pie in the sky.’ It is a contradiction, it is impossible. All

of us would love to sce a voluntary desegrezation system put into effect. It

is not a practical reality. Of course I will vote for this.’’

‘*I would never vote for a plan that involved the busing of school chil-

dren. It is unfortunate that is the way our society exists... but the only

way you are going to desegrezate city schools is through forced busing.’’

The only member of the School Committee to refuse to vote for the plan stated:

‘*T agree that it would be an ideal solution and therefore will not vote

against it, but I will vote ‘present.’ I believe we should have our votes

consistent with what we feel is a reality.’’ Remarks of Member Sullivan,

Emergency Meeting of the Boston School Comm., January 7, 1975.

13a

OPINION OF TUE COURT 13

sources ava.iulle to it as to fashion expeditiously a remedy

that realistically would produce a unitary school system.

Swann, supra.

2. The Constitutional Adequacy of the Masters’ Plan and

the Applicabilily of the Equal Lducational Opportunities

Act of 1974.

The Mayor’s principal attack on the court’s plan, essent-

ially joined in by the Association, is that, since the masters’

pian was constitutionally sufficient, the court was without

power to require more busing than that contemplated by the

masters. The source of this alleged limitation is the Equal

Educational Opportunities Act of 1974, 20 U.S.C. §§1701-1758.

The Act manifests an intention of Congress that mandatory

busing not be ordered to a greater extent than is required by

the constitution. Section 1712 states that a court shall ‘‘im-

pose only such remedies as are essential to correct particular

denials of equal educational opportunity or equal protection

of the laws.’’12 Section 1713 requires a court to consider,

make specific findings about, and adopt a series of less

onerous devices before requiring busing. These include

school assignments close to home, transfers which would

improve racial balance, revision of zones, and the construc-

tion of new schools and magnet schools.

The Mayor’s argument proceeds simply: the masters’

plan contemplated mandatory busing for 6,100 fewer stu-

dents of the 84,000 total student population than did the

court’s plan; the court did not find that the additional com-

pulsory transportation was required by constitutional neces-

sity; and comparison with other cases demonstrates that in

12 One provision, § 1714, facially proscribes any court ordered transportation

of a student to a school other than one ‘‘closest or next closest to his place of

residence’’ of the appropriate grade level and type of education. The Mayor

properly concedes that this section must be read in conjunction with § 1702(b)

which states that provisions of the Act ‘‘are not intended to modify or diminish

the authority of the courts... to enforce fully ... the Constitution .. .’’

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14 MORGAN UV. KERRIGAN

fact the masters’ plan was constitutionally sufficient; there-

fore, the court exceeded its powers.13

The masters filed their final recommendations on March

31, 1975. On April 10 the school department furnished new

statisties on the size and racial composition of the student

body, on the basis of which the court modified the recom-

mended plan. As noted by the district court in its May 28

order denying a stay, ‘‘the masters’ report and recommenda-

tions contained the key elements and formed the foundation

of the plan promulgated by the court.’’ The most significant

change effected by the court was a change in the number of

geographic districts froin nine to eight. The appellants assert

that this change required more busing than the masters’

plan would have required had it been updated to reflect the

new figures. While this basic factual promise is open to some

doubt, we need not rest our decision on such a necessarily

13 The Association also arzucs that the adoption of the masters’ plan was

required by F. R. Civ. P. 53(¢) (2), on the theory that the ‘‘delineation of dis-

triete was a factual determination’’ which could not be changed by the district

court unless found to be clearly crroncous.

This argument misconceives the type of reference made in this case. Rule

53(c) provides that ‘‘[t]he order of reference to the master may specify or

limit bis powers’’, and that was done in this case. The Order of Appointment

and Reference to Masters of February 7, 1975, specified that the masters were

‘*to conduct hearings and make recommendations for a desegregation plan for

Boston publie schools together with the reasons for recommending that plan,

including discussion of the key issues.’’ This clearly described a mission not

involving findings of fact meriting deferential treatment under Rule 53(e) (2).

That rule’s mandate simply ‘‘does not ... apply where the master is directed

only to report the evidence [and] to make recommendations... .’’ 5A J. Moore,

Federal Practice 9 53.12(2], at 3002; Mattcr of Van Swearingen Corp., 180

F.2d 119 (6th Cir. 1950). See Dart v. Community School Board 383 F. Supp.

699 (E.D. N.Y. 1974), af’d, 512 F.2d 37 (2d Cir. 1975). Tiis reference

was not a substitute for trial, where the master to a large extent takes

over the fact-finding presess; the district judge could not delegate his duty

to evaluate for himseli what actions had to be undertaken in order to remedy

past failure to comply vith the constitution. Indecd, we doubt that the determin

ation of district boundaries is accurately described as purely factual in nature,

given the nature of this case.

It is uncontested, moreover, that the figures on which the masters relied in

drawing their districts were outdated and invalid in light of new figures sub-

mitted by the School Department shortly after the masters’ final report was

filed. Both as to racial composition and numbers of studerts in the districts, the

cew figures rendered the factual assumptions underlying the masters’ determ-

ination clearly erroneous.

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OPINION OF THE COURT 15

elusive determination.14

We proceed to examine the district court’s duties and

powers, as they are affected by the Mqual Educational Op-

portunities Act of 1974; whether the court purported to be

guided by the Act; and whether its findings and conclusions

are sufficiently supported.

Prior to the passage of the Act it was clear that the man-

date governing federal judges was to accomplish ‘‘the tran-

sition to a unitary, nonracial system of public education”’ in

which ‘‘racial discrimination would be eliminated root and

branch.’’ Green, supra, 391 U.S. at 436, 438. They were to

make ‘‘every effort to achieve the greatest possible degree of

actual desegregation, taking into account the practicalities

14 The estimate of 6,100 additional students who would be bused under the

court’s plan (21,000-court minus 14,900-masters) ignores the impact of the new

data, even had the masters’ districts remained essentially intact. For exampie,

the Burke district, climinated by the court, had a capacity of 8,250 and an en-

rollment projected by the masters of 7,590. But the new statistics revealed it as

containing 11,620 students. Even after assuming that some of the overflow

would be absorbed by citywide magnet schools, there would remain perhaps

2,000 oxecss students. The Mayor dovs not show that shifts in district lines to

accommodate these students cither by merging contiguous neighborsoods and

their schools into Burke or by removing fringe neighborhoods from it would not

encounter the difficulty of incrcasing Burke’s percentage of black students,

already a high 63%. Although the amount of additional busing that would

have been needed to take cure of this situation is u matter of conjecture, it

would appear to be substantial, if increased segregation were to be avoided.

Not only student population but racial concentration estimatcs of the masters

were at odds with the realitics of the new figures. The following discrepancics

were found to exist:

Possible result

New figures of allowed de-

applied by viation of + 10

court to percentage points

Master’s final masters’ within each

report districts school

West Roxbury 80% W 93% W 100% W

South Boston 60% W 67% W 717% W

Burke 50% B 63% B 73% B

The result, particularly when the + 10 point deviation is considered, represent-

ed substantial changes, unanticipated by the masters. While the masters gave

greater weight to neighborhood identity than did the court, it is far from clear

that they would have tolerated the higher concentrations shown by the new data.

The Mayor’s assumption that the court’s plan would involve anything close

to the —_— busing of 6,100 more students is therefore significantly

vulnerable.

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16 MORGAN VU. KERRIGAN

of the situation.’’ Davis v. School Commissioners of Mobile

Cowiity, 402 U.S. 33, 37 (1971). And in so doing, ‘‘the scope

of [their] equitable powers to remedy past wrongs is broad,

for breadth and flexibility are inherent in equitable rem-

elies.’’ Swann, supra, 402 U.S. at 15 (1971).

The Act disavows any intention to encroach upon the obli-

gation of the cousts ‘‘to enforce fully’’ the constitution,

§ 1702(v). Moreover, it places reliance on specific findings

with respect to the efficacy of particular remedies in the

‘‘priorities’’ section, } 1713, and on a more general finding

of the inadequacy of other remedies in $1755. By explicitly

leaving the district court the power to determine the ad-

equacy of remedies, the Act necessarily does not restrict the

breadth of discretion of that court to determine what scope

of remedy is constitutionally required. Thus the Act mani-

fests a purpose not to limit judicial power but to guide and

channel its excreise. Ina sense it is a statutory “‘less restric-

tive means’’ guideline, endeavoring to ensure that substan-

tial compulsory transportation be used as a last resort. Our

reviewing function remains the limited one of scrutinizing

the record for sufficent factual support for the scope of the

remedy, its reasonableness and its feasibility. See Swann,

supra, 402 U.S. at 31. The Act adds the factor that the dis-

trict court’s findings must reflect a substantial consideration

of the less restrictive means which Congress has required to

be explored and used prior to resorting to compulsory trans-

portation of any magnitude.15 We turn therefore to an

analysis of these two areas.

Initially, we look to whether the remedy imposed in this

ease reflected the channelling contemplated by the Act. On

this question, there can be little doubt. The district court

15 As the court said in Brinkman v. Gilligan, 518 F.2d 853, 856 (Sth Cir.

1975), ‘We construe the 1974 Act, read as a whole, as not limiting cither the

nature or the scope of the remedy for constitutional violations in the instant

case.’’

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OPINION OF THE COURT 17

clearly purported to be guided by the Act’s mandate. In the

course of presenting its plan, the court stated:

‘*Assignment of every student to the school closest

or next closest to nis residence, considering only school

capacity, natural physical barriers or both, along with

grade level and the type of education provided, cannot

achieve substantial desegregation in Boston due to the

geography of the city and racial and ethnic distribution

in the city. 20 U.S.C. § 1713(a)(b), $1714. Revision of

attendance zones and grade structures, construction of

new schools and the ciosing of old schools, a controlled

transfer policy with limited exceptions and the creation

of magnet schools have been used in the formulation of

the plan here adopted in order to minimize mandatory

transportation. 20 U.S.C. § 1713. The court finds, how-

ever, that some transportation of students to schools

other than those next closest to their residences is re-

quired to remedy adequately the denial of plaintiffs’

constitutional rights and to eliminate the vestiges of

a dual school system in Boston. 20 U.S.C. §1702(b),

§1714(a).’’ 401 F. Supp. at 264.16

We do not understand the Mayor to contest these findings;

nor would there be any basis in the record for such a chal-

lenge. Rather, the Mayor’s theory goes less to which type

of remedy (e.g., busing, magnet schools, etc.) was used by the

court than to whether the remedial plan as a whole effectu-

ated more desegregation (and as a result more busing) than

was required. Since this argument concerns the district

16 Additional comments in the same vein are te be found in various parts of

the court’s opinion filed subsequent to the plan itself:

**The plan that the court has ordered into effect reflects the court’s con-

tinuing efforts to hold compulsory busing to a minimum.’’ ‘‘The districts

in this plan and the guidelines for assigning students have been drawn to

minimize required transportation as much as possible consistently with

desezregating the city’s schools.’’ ‘‘ The plan adopted by the court attempts

to minimize forced busing.’’

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18 MORGAN VU. KERRIGAN

court’s discretion in determining the adequacy of the rem-

edy, and therefore gains nothing from the Act which leaves

that discretion unaffected, it must stand or fall upon those

traditional principles of equity which would govern this

issue even were the Act not in existence. We turn, thercfore,

to those principles and ovr traditional reviewing function.

It is important to understand what the court’s plan accom-

plished. Assuming that it involves the foreed busing of up

to—but probably substantially fewer than —6,100 more

students than the masters’ plan, what did it get in return?

We see the plan as one involving relatively unskewed, con-

_tiguous, compact districts without extensive gerrymander-

ing or satellite zoning. It should be borne in mind that com-

pulsory busing occurs only within, not between, districts.

Although both the masters’ plan and the court’s plan leave

the East Boston schools 95 percent white, the court’s plan

eliminated the other virtually one-race schools (as would

have existed under the masters’ plan in West Roxbury, 93

percent white) and many racially identifiable schools (pre-

dictable for the masters’ Burke district, 63 percent black).

It reduced the racial distortion in the three districts which,

under the masters’ plan (as the new figures affected it),

would have been markedly disproportioned. By reducing

racial identifiability, the plan did more to avoid the dilemma

of either denying a district’s pupils access to citywide

schools or allowing the district to lapse back into a one-race

status. That the plan was not perfectionist is shown by the

parameters of its district ratios, the percentage of whites

ranging from a high of 61 percent to a low of 40 percent, in

a school population 52 percent white, 36 percent black, and 12

percent other minority. Moreover, a 25 percent deviation

was permitted for each district schoo]. This compares with

parameters in the masters’ plan, when the newer School

Department data are taken into account, which are substan-

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OPINION OF THE COURT 19

tially more extreme at both ends. As for the compulsory

transportation, the maximum is a 5 mile, 25 minute trip, the

avearge being 214 miles, 10 to 15 minutes.

Could the district court have reasonably found this addi-

tional desegregation to be constitutionally required?!7 To

put it another way, does the court’s pian go beyond ‘‘every

effort to achieve the greatest possible degree of actual dese-

gregation, taking into account the practicalities of the situ-

ation’’? Davis, supra, 402 U.S. at 37. The *‘practicality”’ of

white flight is not a viable basis for declaring the plan in-

valid. See part A 4, infra. Apart from the practicality of

geography which induced the court to exempt East Boston

from Phase II, we sce no other geographical factor of sig-

nificant dimensions. To the extent that funding is a problei,

we note that virtually the entire expense of any incremental

busing is fundable by the state Board of Education, which

supports the court’s plan. See Mass. G. L. ¢. 15, $11; ¢. 71,

17 The Mayor would have us answer this question in the negative by referring

to other cases, aflirmed by courts of appeals, where more schools were allowed

to remain all black or more dominantly black than the masters’ plan contem-

plated. Apart from the Mayor’s assumption that the masters’ plan contem-

plated no school more than about 53% black —an estimate which, in the light

of the new data, shou'd be closer to 73% —we reject such a simplistic color

matching test to determine the constitutional sufficiency of any plan.

The cases cited by the Mayor reveal the hazard of picking as a control any

one statistic of residual racial imbalance which another court may have ap-

proved. In three cases, Mims vy. Duval County School Board, 329 F. Supp. 123

(M.D. Pia.), aff’d, 447 F.2d 1330 (Sth Cir. 1971); Goss v. Board of Education,

482 F.2d 1044 (Gth Cir. 1973) (en bane); and Norticross v. Board of Edu-

cation, 489 F.2d 15 (6th Cir. 1973), geographie factors and, at least in Jfims

and Northcross, the dvsire to avoid extensive long distance busing were relied

upon to justify the lesser degree of desegregation attempted. In two cases, Pate

v. Dade County School Board, 434 F.2d 1151 (Sth Cir. 1970) and Ross v. Eckels,

434 F.2d 1140 (Sth Cir. 1970), while more all black sehvols were permitted to

remain, the courts of appeals had insisted on reducing the number of pupils

attending such schools to around 5% »f the total school population. Were we to

take this statistic as a control, we would have to declare the court’s p!an, which

leaves over 7% of the total studeut population attending the East Boston white

schools, constitionally inadequate. The remaining case, Carr v. Montgomery

Board of Education, 377 F. Supp. 1123 (M.D. Ala. 1974), afd per curiam, 511

F.2d 1374 (Sth Cir. 1975), concededly insisted on a less stringent plan. Whether

the desire to avoid cross-city busing would be, in our minds, sufticient to justify

the lower objective, we have no reason tu decide. The exercise of one district

court’s discretion, in a particular case, though aflirmed on appeal, cannot

establish constitutional limits for other courts facing other circumstances.

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20 MORGAN UV. KERRIGAN

§§ 7A, 7B, 371(ii). The amount of additional desegregation

which was ‘‘purchased’’ by the court’s plan was neither

trivial nor disproportionately burdensome. When we ask

oursclves whether a slight increase of maximum percentage

of planned white enrollment at some schools, or leaving some

vlementary schools unaffected, or adding a few more magnet

schools would achieve the aiid minimum with less

compulsory busing, we realize that the concept of the mini-

mum cannot be identified with precision. Whatever pres-

eription may be adopted by a judge, after months and years

of consideration, it is doubtless always possible to make a

case that something less will do. We have no basis for hold-

ing that the court exceeded its obligation to do all that it

feasibly could to extirpate the effects of the constitutional

violations over the years.

3. Alleged Overbreadth of the Remedy.

On January 20, 1975, the Association submitted a desegre-

gation plan that was designed to restore the racial composi-

tion of the Boston schools to that which they would have had

in the absence of any illegal official action. It contended that

the district court was obliged to determine the extent to which

the segregation in the Boston schools was attributable to

official action and to limit the remedy to eliminating only that

segregation. The factual premise of the Association’s plan

was that the racial composition of most of Boston’s elemen-

tary schools and of two of its high schools, Charlestown and

East Boston, is the result of residential patterns in Boston

and not of the illegal acts of the Schoo] Committee. Its plan,

accordingly, provided that these schools should not be

affected by the court’s remedy.

Since the Association’s plan challenged the remedial

guidelines contained in the district court’s order of October

31, 1974, the district court treated the Association’s docu-

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OPINION OF “HE COURT 21

ment as both a motion to modify the remedial guidelines

prescribed by that order and as a proposed desegregation

plan. The district court held a hearing on the issues pres-

ented by the Association on January 23, 1974. In support of

its plan, the Association offered to introduce evidence that

would establish Giant population patterns, not legal state

action, caused the existing racial segregation iu the schools

in question, he district court denied the motion to modify

the remedial guidelines, holding that the Association’s

remedial theory was inconsistent with the controlling

Supreme Court precedents.8 The court also held that the

Association’s desegregation plan was constitutionally inad-

equate and could not be considered by the masters. Finally,

the court refused to admit the Association’s evidence, on the

grounds that it was irrelevant since the only question before

the court at that time was how to accomplish the greatest

amount of actual desegregation consistent with the practi-

calities of the circumstances and that the motion represented

an attempt to reopen the findings of fact made by the district

court at the liability stage of the proceedings and affirmed by

this court. The Association has appealed, contending that

the district court erred, first, in refusing to frame the remedy

in terms of the specific consequences of the proven consti-

tutional violations, and, second, in rejecting the evidence

that the racial segregation in particular Boston schools was

not the result of any state action.

The central question on appeal is whether the district

court erred in refusing to accept the Association’s remedial

theory. In support of its theory that the district court must

ascertain the extent to which state action caused the existing

segregation in the schools and limit its remedy to eliminating

that segregation, the Association relies upon the language of

18 The district court also ruled that modification was not required by the

Equal Educational Opportunities Act of 1974. See note 24 infra.

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22 MORGAN ¥. KERRIGAN

the Fourteenth Amendment itself. Since the amendment pro-

hibits only state imposed racial segregation, see Civil Rights

Cases, 109 U.S. 3 (1883), the Association contends that a

district court’s remedial power is limited to remedying the

specific effects of the ‘‘state action’’ that formed the basis of

the constitutional violation.

Although the theory possesses some surface plausibility,

the Supreme Court precedents clearly establish that the dis-

trict court was correct in rejecting the Association’s pro-

posed modification of its remedial guidelines. The remedial

principles set forth in Swann, Davis, and Green do not toler-

ate anything less than ensuring that the effects of constitu-

tional violations are eliminated, and we are certain that the

application of the Association’s remedial theories could not

eradicate the effects of state iinposed segregation.19

To appreciate why the Association’s remedial theory must

be rejected, it will be helpful to consider the nature of the

constitutional violation. In the first stage of this ease, the

district court found that the School Committee’s policies re-

garding the construction of new facilities, the use of portable

classrooms, overcrowding, districting and _ redistricting,

feeder patterns, open enrollment, transfers, and faculty and

staff assignments ‘‘were all marked by segregative intent”’

and substantially contributed to the segregated character of

dozens of Boston schools. 379 F. Supp. at 426-30, 433-37,

442-45, 455, 459, 466-68, and 472. The latter part of the dis-

trict court’s opinion dealt specifically with the School Com-

mittee’s defenses that the racial segregation in the Boston

19 A remedy may sometimes properly ‘‘exeeed the violation’’ in that it may do

more than cradicate the constitutional wrong. To the extent that ‘‘ overbreadth’’

in the remedy is necessary to ensure that the constitutional violation is corrected,

it is not at all unusual. There are many instances in the law in which remedial

law placcs greater restrictions on primary activity than did the substantive law

that had been violated. For example, a company that is found to have violated

the Sherman Act will have its future operations governed by a much more re-

strictive standard than that imposed by the Sherman Act itself. See United

States v. United Shoe Machinery Corp., 391 U.S. 244 (1968).

ee a ee

23a

OPINION OF THE COURT 23

schools — which it conceded to exist—-resulted from |

private residential patterns and/or its racially neutral

neighborhood school policy. The district court found that

Boston had never followed a true neighborhood school policy

and rejected the defense, relying in part on its earlier find-

ings. 379 F. Supp. at 469-74. These specific findings, many

of which related to elementary schools, were the basis for the

determination that Boston’s school system as a whole vio-

lated the Fourteenth Amendment. Although the defendants

eould have limited the geographic scope of the violation by

proving that parts of the Boston school system were geo-

graphically unrelated to the rest of the system and had not

been operated with ‘‘segregative intent,’’ Keyes, supra, at

203-05 and 210-13, the School Committee failed to satisfy

this burden with respect to any portion of the system. We

aflirmed the district court’s findings and legal conelusions in

their entirety, Morgan v. Kerrigan, supra.

The Association, in effect, argues that the trial on liability

should be treated as the first of two battles, and that the

second battle should involve a more particularized inquiry

into the causes of the segregation at the individual schools

within the system. Although the defendants failed, at the

trial on liabilily, to persuade the district court that private

residential patterns alone caused the segregation in the

Boston schools, the Association maintains that the district

court must, at the remedy stage, reconsider the effects of

non-official action, determine the degree to which private

action caused the existing segregation, and fashion a remedy

that preserves the segregation that can be separated from

governmental causation. This second battle would be consid-

erably more complicated than the first. The logical impli-

cation of the Association’s proposal is that it would be

proper for any group connected with any school to introduce

proof that that school’s racial profile was only partially

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24 MORGAN VU. KERRIGAN

attributable to official action. The district court could be

faced with the task of making percentage findings as to every

school in the district.

The short answer to the Association is that its position is

squarely contrary to the remedial principles of Swann,

Davis, and Green.29 See also Keyes, supra, at 200 and 214.

These cases establish that when intentional official action has

significantly contributed to segregation in substantial por-

tions of a school system, the individual schools in the system

must be subjected to the maximum feasible desegregation

if official action ‘‘created or maintained’’ the racial segre-

vation contained therein. Swann, supra, at 21 and 28. See

Keyes, supra, at 214. In the Boston case, the School Com-

mittee had the opportunity to prove that official action had

not contributed to the segregated character of some of the

20 The Association recognizes that Swann, Davis, and Green provide that,

during the remedial phase of a school desegregation casc, the district court must

order the maximum practicable desegregation regardicss of the degree to which

the actual sezrezation in the schools is demonstrably the result of unlawful state

action. The Association attempts to distinguish these cases on the ground that

each involved school systems that had been segregated by statute for years.

In such school systems, the Association contends that the application of these

remedial principles was warranted because all segregation could be presumed

to be the result of illegal official action.

The Association’s attempt to limit the applicability of these remedial prin-

ciples to cases in which there had previously been a statutory 7:21 school system

fails. In Swann and Davis, the Court clearly did not proeced on the assumption

that the application of its remedial principles would operate only to eliminate the

segregation which was directly attributable to illegal official action. The Court

recognized that the segregation in those systems that remained after the school

authorities abolished the stavutory dual system and adopted a ‘‘neithborhood’’

school policy was, to some extent, a consequence of private residential patterns.

Sce Swann, supra, at 25-26; Davis, supra, at 36. The Court clearly provided

that, although all the remaining segrecation in certain schools may not be

attributable to illegal state action, the schools must be subjected to the maximum

practicable desegregation. Swann, supra, at 21 and 28.

The lower federal courts have consistently rejected desegrezation plans that

attempted to justify the failure to desegregate certain schools on the ground that

the racial composition of those schools results from housing patterns. Maximum

feasible desezregation is required unless the school authoritics can demonstrate

that their actions in no way contributed to the sezregated character of the

individual schools. Sec, e.g., Lee v. Macon County Board of Education, 488

F.2d 746 (Sth Cir. 1971); Goss v. Board of Education of Knozville, 443 F.2d

632 (6th Cir. 1971); Clark v. Board of Education of Little Rock, 465 F.2d 1044

(Sth Cir. 1972); Brewer v. Board of Education of Norfolk, 397 F.2d 37 (4th

Cir. 1960).

——

25a

OPINION OF TIE COURT | 25

individual schools in the system, but the district court found

that the School Committee had failed to satify this burden.21

fence, under Swann, the district court was obligated to

fashion a remedy that would accomplish the greatest amount

of system-wide desegregation taking into account the prac-

ticalities of the situation. S:cann, supra, at 15-16; Davis,

supra, at 37.

The Supreme Court has tacitly recognized the impotence

of a remedy designed only to eliminate the demonstrable

effects of past official conduct. While de jure segregation

may not have been established at cach and every school in

a system, ‘‘common sense’’, to use the words of the Court,

supports the conclusion that effects of the proven discrim-

inatory actions pervade the school system asa whole. Keyes,

supra, at 201. Acts that establish one school as white or as

black will have a reciprocal effect on the racial composition

of nearby schools. Id. at 202-03; Swann, supra, at 20-21. The

use of various devices to earmark sei:>9ls according to their

racial compositions may well have had a ‘‘ profound effect on

the racial composition of the residential neighborhoods with-

in the [city], thereby causing further racial concentration

within the schools.’’ Keyes, supra, at 202. ‘*‘People grav-

itate toward school facilities just as schools are located in

response to the needs of the people.’’ Swann, supra, at 20.22

22 The Association places extensiv’ reliance on the language in Swann that

provides thot school authorities may, at the remedy stave, attempt to limit the

geographic scope of the remedy by proving that the racial composition of the

schools in certain areas in the system is in no way the result of present or past

discriminatory action on their part. Swann, supra, at 26. Swann, however, can-

not be read as supporting the proposition that causation is at issue during the

remedial phase of a school segregation case when there has been a trial on

liability. The burden this language describes is cssentially identical to that

which the presence of substantial intentional segregation shifts to the School

Committee during the trial on liability. See Keyes, supra, at 203-05, and 210-11.

In Swann, the school authorities were afforded the opportunity to satisfy this

burden at the remedy stage of the procecdings because here had been no trial on

liability. Here, of course, the school authorities have had their chance.

22 For example, although a dominantly white school in a white neighborhood

may appear to be wholly the result of the ethnic patterns of the neighborhood,

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26 MORGAN U. KERRIGAN

From a practical point of view, the problems of determin-

ing what the racial composition of neighborhoods would have

been, absent the unlawful discrimination, would be especially

acute in such a case as this where the schoo] authorities did

not follow a genuine neighborhood school policy and where

one form of discrimination was the locating of new schools

and the overcrowding of existing facilities. 379 F. Supp. at

427-29, 469-74; see Keyes, supra, at 211-13. The task of

unscrambling cause and effect would be, to understate it,

awesome.

Even if we assume that the district court could reexamine

each school to determine the shares of segregation attrib-

utable to public and private action, the application of the

* Association’s theory would fail to vindicate the constitution-

al rights of many students presently enrolled in the Boston

schools. It, of course, is the rights of the individual students

that are in question. Morgan v. Kerrigan, 509 F.2d 599, 600

n. 3 (1st Cir. 1975); see Brown v. Board of Education, 347

U.S. 483, 494 (1954). ven if the court could reliably deter-

mine that 40 percent of a school’s segregation was caused by

ollicial action and GO percent by private residential patterns,

it could not bifurcate an individual student. The result

would inevitably be that some victims of the School Com-

mittee’s official policy would be foreed to continue a segre-

gated education.

Apart from the failure of the Association’s theory to

remedy the violations of individual rights per se, its adop-

tion would seem to us to turn the process of desegregation on

its head. Unconstitutional segregation is defined not only

by percentages but also by community and administrative

when the School Committee has taken steps to incorporate the residential segre-

gation into the schools, to carmark that school as a white school, and to permit

white students from other parts of the city to attend it, that school has played

a major role in skewing the racial profiles of the other schools in the system.

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OPINION OF THE COURT 27

attitudes, see Keyes, supra, at 196, and by psychological

effects, see Brown, supra, at 494. To require a district court

to preserve intact every scrap of segregated education that

somehow can be separated from governmental causation is

to involve the federal courts in planning continued segre-

gation and in berpetuating the community and administra-

tive attitudes and psychological effects which desegregation

should assuage. Cf. Wright v. Council of City of Emporia,

407 U.S. 451, 465-66 (1972).°°

We add one further observation. The court had found that

in the past ‘the School Committee had given racially isolated

black schools less support, particularly in the quality of fac-

ulties supplied, than other schools. The court had good

reason to believe that if black and Hispanic students were

not spread, visibly and bodily, in the mainstream among

schools throughout the system, the racially identifiable

schools in which they remained would continue to invite dis-

criminatorily unequal treatment evading timely and ceffee-

tive remedy. A racially mixed population in each school

would, on the other hand, be an insuranee policy against any

purposefully unequal allocation of resources. While the

liability phase of this case primarily involved diserimin-

atory separation, the realistic prospect of discriminatory

inequality of support for schools which, though no longer

subject to racial districting, transfer, or other such policies,

remained predominantly black is a pragmatic factor further

supporting the court’s remedial order.

23 The Association places considerable relianee on Milliken v. Bradley, 418

U.S. 717 (1974), and, in particular, on its statement that ‘‘the remedy [in a

school desegration cusej is necessarily designed, as are all remedies, to restore

the victims of discriminatory conduct to the position they would have occupied

in the absence of such conduet.’’ Jd. at 746. Although we understand why the

Association believes this Janguage supports its position, we rend this language

as entirely consistent with the continued application of the remedial principics

of Swann and other such eases. As we have demonstrated, restoring the victims

of unconstitutional segregation requires far more than climinating the specific,

demonstrable effects of the proven diserimiuatory acts. Restoration is neces-

sarily a complex and widespread process.

28a

28 MORGAN U. KERRIGAN

It is clear, therefore, that practical considerations as well

as established principles mandated the rejection of the As:: -

ciation’s remedial theory.24 Hence, we hold that the district

court did not err in refusing to modify its remedial guide-

lines.

It follows that the district court was correct in refusing to

admit the Association’s evidence on the causes of the exist-

ing segregation in the Boston schools. To the extent that the

evidence was offered to establish the degree to which illegal

state action had caused the racial segregation in the Boston

schools, the evidence was legally irrelevant at this stage of

the proceedings.*5 The only question before the district

‘court was how to accomplish the greatest amount of actual

desegre-ation consistent with the practicalities of the cir-

curnstanees. To the extent that the evidence was offered to

rebut the Keyes presumptions, it came too late and was

barred by established principles of preclusion.26 It is cle-

24 The Association also ventends that the Equal Edueational Opportunitics

Act of 1974 required the district court to adopt its remedial theory. In partieu-

lar, the Association points to § 213 of the Act, which provides that ‘in formu-

lating a remedy for... a denial of equal protection of the Jaws, a court...

shall seek of impoye only such remedies as are exsentin) to correct particular

denials of ... equal protection of the Inws.’? 20 1.8.C. §1712. This language,

like the statement from Aliliken vy. Bradley, 418 U.S. 717, 746 (1974), discussed

in note 23 supra, is entirely consistent with the continued application of the

remedial principles of Swann, Davis, and Green. Because of the pervasive effects

of the School Committee’s actions, maximum practicable desevreration its

‘fessential to correct [the] particular denials of equal protcetion [that

oceurred].’’ See note 23 supra.

25 At oral arcument, the Association arrued that the Tenth Cjrevit’s reeent

decision on remand in Heyes ¥. School District No, 1, 521 F.2d 465 (10th Cir.

1975) (Acycs 1/1), supports its contention that, even after a trial on liability,

the district court is under an obli: ation to receive evidence on the discriminatory

effects of the proven violations as part of its task in fashioning a remedy.

Keyes II in no way supports this proposition. The evidence the district court

og in Kcycs 1I pertained to the question of liability, not to remedy. Jd. at

471-73.

26 The Association suggests that it should be permitted to attempt to rebut

the Keyes presumptions now because the defendant School Committce was not

afforded an opportunity to do so at the liability stage of proceedings since Keyes

had not Leen decided at that time, We find this suggestion utterly without merit.

The effect of Keyes wus before the district cuurt during the trial on liability,

it Laving been decided on June 21, 1973, a time when that trial had been

word

ees see

29a

OPINION OF THE COURT 29

mentary that the district court was not required to reopen

factual findings and legal conclusions reached after vigorous

litigation — the whole point of which was to determine

whether the segregation which concededly existed was

caused by unconstitutional state action—and affirmed on

appeal. See, e.g., White v. Higgins, 116 F.2d 312, 317-18

(1st Cir. 1940) ; Bee Mach Co. v. Freeman, 131 F.2d 190, 192-

93 (1st Cir.), aff’d, 319 U.S. 448 (1943) ; Hodgson v. Brook-

haven Gen’l Hospital, 470 ¥'.2d 729 (Sth Cir. 1972).

4. The ‘‘ White Flight’’ Controversy.

The district court ruled that ‘‘ white flight,’’ defined as the

departure of white children from the Boston city schools to

parochial, private, or suburban school systems, is not a

practicality for which the plan must make an accommoda-

tion. Morgan v. Kerrigan, 401 F. Supp. at 233-34. See Davis,

supra, at 37. The Mayor and the Association challenge this

ruling as an abuse of diseretion, claiming that ‘white flight”

alters the eiTectivencss of a desegregation plan and Jeads

to ‘‘resegregation’’ of the schools.°7

White flight is an expression of opposition by individuals

in the community to desegregation of the school system.

Monroe, supra; Jackson v. Marvell School District No. 22,

416 ¥".2d 380 (8th Cir. 1969) ; Lee v. Macon County Board of

Education, 448 F.2d 746 (5th Cir. 1971). From the ineeption

of school desegregation litigation, accommodation of opposi-

tion to desegregation by failing to implement a constitution-

ally necessary plan has been impermissible. Brown v. Board

reopened. The School Committee did not scek a reopening on the issues presented

by Keyes; it described Keyes as a restatement of the principles of the earlier

Supreme Court decisions. In any event, the district court found that the record

w93 sufficiently complicte to apply Heyes, 379 F. Supp. at 479, and that finding

was not challenged on appeal.

27 In the alternative, it is claimed that the district court should have taken

white flight into account in modifying the masters’ plan. Sce Part A 2, supra.

The masters, however, rejected considerations of white fight in drafting their

plan.

30a

30 MORGAN UV. KERRIGAN

of Educaton, 349 U.S. 294 (1955) (Brown IT).28

Appellants contend, however, that white flight differs

from other forms of opposition, because its effects, the with-

drawal of white pupils from the school system, alter the

effectiveness of the desegregation plan. The school system,

they claim is ‘‘resegregated’’: the city school system largely

black and other minority; the private and suburban systems,

largely white.29 To prevent this result, appellants claim that

23‘*Rut it should go without saying that the vitality of these constitutional

principles cannot be allowed to yicld simply because of disagreement with them,’’

349 U.S. at 300.

29 Subsequent to the district court decision, we allowed to be filed, subject to

a determination of relevance, voluminous afSdavits and other materials by social

scientists on the subject of white flight.

The admissibility of these submissions have been attacked as being outside the

record, F.R.A.P. 10(a), and as hearsay. The materials have been defended as

sociological data in the nature of ‘‘legislative facts’’ relevant to a determination

of the law governing the district court in this matter.

For reasons we discuss in the text, we reject all these materials as irrclevant

to the issues before us on this appeal. We include a brief synopsis of these

uiaterials to illustrate the diffienlty in evaluating white flight if it were relevant.

The data submitted initially by the Associntion consists of an affidavit and

report prepared by James S. Coleman, Irofesser of Sociology at the University

of Chiengo. Dr. Coleman states that his recent study shows thot while there

is decreasing segregation within school distriets, segregation between school

districts in the same metropolitan areca is increasing; tuat rapid inercase in loss

of white children from central city schools follows immediately after school

desegrozation; and that as a consequence, desegregation has not significantly

raised the levels of academic achievement of blacks.

Plaintiffs counter with the transcript of testimony given by Jane R. Mercer,

Associate Professor of Sociology, University of California at Riverside, in

2 case involving Indianapolis. Iler testimony shows that she studied desegregation

in school districts thoughout the state of California; that white exit to private

schools is a short term phenomenon; and that declines in white population in the

cities are part of a long term demographic trend independent of desegregation. The

plaintiffs also submit a paper written by Meyer Weinberg, Editor of Integrated

Education magazine, which summarizes other studics showing white flight to be

an avoidable phenomenon, not an inevitable consequence of mandatory desegre-

gation. Weinberg’s paper and another paper written by Professors Green of

Michigan State University and Pettigrew of Harvard University, eriticize

Dr. Coleman’s methodology, claiming that the souree of his raw data is unknown;

that failure to evaluate large cities which have been subject to massive desegre-

gation orders separately from large cities which have not been subject to court

orders undermines the study’s relevancy; and that failure to control for other

variables, which may be correlated with white flight, jeopardizes the validity

of his conclusions.

Dr. Coleman replies in an affidavit filed with a copy of a working paper,

‘* Trends in Schoo! Segregation, 1968-73’’, In his affidavit, Dr. Coleman states

that the report previously filed with the court was prepared for oral delivery

and was based on the attached working paper. He defends his methology, states

that bis conclusions are consistent with the findings of the studies cited by

a eS a

3la

OPINION OF TIIE COURT 31

the district court should consider white flight a ‘‘practical-

ity’’, and limit the amount of desegregation to that level

which would enjoy acceptance in the white community.%0

There are two endemic flaws in this argument. First, in

Weinberg, and the studics conducted by Dr. Mercer. Dr. Coleman states that his

study shows that massive white flight will occur when there is a significant

decrease in segregation in a city where there is a Ligh proportion of blacks in

the central city and suburbs of a significantly different racial composition.

Plaintiffs, in rebuttal, file another study prepared by Christine H. Rosscll, of

Boston University. The Rossell study, prepared from data on $6 northern school

districts subjcet to court ordered or lexislatively enacted school desczrezation,

suggests that white flight is minimal and a temporary reaction to school desegre-

gation. Plaintiffs claim that Dr. Rosseil’s study differs from Dr. Coleman’s in

that Dr. Rossell deals vuly with northern schoul! districts subject to desegregation

plans while Dr. Coleman docs not distinguish between forms of desczrezation.

In the final submission, Ur. Culeman defends his study against the Rossell

findings, suggesting that her analysis is inadequate to examine the effcets of

desegregation on a core city school system. He further elaims that his model

has proved accuratcly predictive of the Boston experience.

Throughout this scrics of submissions this court hay been burdened with

reports written for sociologists by sovcivlogists utilizing sophistiented statistical

and mathematical techniques. We lock the expertise to evalinte these studies on

their merits. We du come to one conclusion, however. The relationship between

white Hight aud court ordered desegregation is a matter of vealed debate among

experts in sociolugy, and a firm professional consensus hins nol yet emerged.

Appellants have also filed with this court copies of the Keston School Depart-

ment’s current censts of students according to race and minority group. ‘The

figures facially suxgest iosy of a sicnificnnt wamber of white enrolices, We

note, however, that the district court is currently studying the uecuracy of past

enrollment data. We dveline to make any conclusions concerning the existence or

nonexistence of white flight on the sparse figures available to us.

30 Appellants sugecsted approach would neecssurily involve the district court

in something like the followin;, analysis: (1) take evidence concerning the

prospects of while fight under the various plans proposed; (2) exclude the

causes of such flight attributable to any histuric trend, or such factors as over-

crowding, transportation dillicuitics, deteriorated huusing, taxes, crime, pollution,

industrial migration, ctc.; (3) make a judgment as to the effect which different

levels of desezraytion would have on white flizht; and (4) sciect or devise that

plan which will incorporate enough desegregation to bring about the maximum

amount of inter-racial contact in the schools after taking account of tle white

Hight suck: desegregation would be expected to induce.

The experts have diflicully iu attempting to justify conclusions as to the

effect of past desegregation plans on white tlight, sec note 29 supra; the task of

making estimates of expected exodus of whites attributable to varying future

desegregation plans would seem to be more diilicult. Conecivably, public attitude

sampling could be undertaken, using various hypotheses. This might involve

questioning parents in uw particulur scetion or schvol district whether they would

be likely to place their child elsewhere, or move, if the child were to attend

a school which was x, y, or z percent black. The possibility is a real one that

surveys would indicate that tic prospect of any substantial amount of desegre-

gation or busing would provuke suilicient expressions of intent to flee as to

negate any desegregation plan. Alternatively, if expressed intentions were to

be heavily discounted, their utility would accordingly diminish.

32a

32 MORGAN U. KERRIGAN

the trial on liability, evidence was presented that feeder pat-

terns, district lines, and open transfer policies were estab-

lished for the purpuse of satisfying purported white commu-

nity desires. 379 F. Supp. at 438, 449. This evidence resulted

in a finding that the Boston schools were administered in

violation of the Fourteenth Amendment. Appellants now

ask that the district court, in devising a remedy for these

violations, respond in the same way as the Boston School

Committee did to the same perceived community attitudes:

draw district lines, assign pupils to schools, and limit racial

mixture to reduce ‘‘white flight’’. In other words, while ap-

pellants dwell upon the unpleasant prospect of an inner city

black school system surrounded by suburban white school

systems, the prospect contemplated by their approach is that

of an inner city segregated system, created unlawfully, but

permitted to endure because the apprehension of massive

white flight has made legal what had once been in violation of

the constitution. .

Second, appellants’ claim that white flight destroys the

effectiveness of the school desegregation plan, because of

‘*resegregation’’ of the school system, founders on the con-

stitutional delinition of unlawful segregation. The Su-

preme Court has recently reempiasized that the consti-

tutional right is to attend school in a unitary, non-dis-

criminatory, public school system. It is not to attend school

in a system which is comprised of students of a racial balance

which exists in the general geographical area. Milliken v.

Pradley, 418 U.S. 717, 746 (1974). Accord Calhoun v. Cook,

No. 74-2784, slip op. at 396 (Sth Cir. Oct. 23, 1975) ; Mapp v.

Board of Education of Chattanooga, Nos. 74-2100-01, slip op.

at 3-6 (6th Cir. Oct. 20,1975). What the layman calls ‘‘ rese-

gregation’’ is not constitutionally recognized segregation. It

is racial isolation imposed by historic school district bound-

aries, Milliken v. Bradley, supra, or by individual choices to

33a

OPINION OF THE COURT 33

attend private institutions. Compare McCrary v. Runyon,

515 F.2d 1082 (4th Cir.), cert. granted, 44 U.S.L.W. 327

(1975). This racial isolation becomes constitutionally sig-

nificant only when the district boundaries are drawn with

segregative intent, Evans v. Buchanan, 395 F. Supp. 428,

445-46 (D.C. Del.), aff'd, 44 U.S.L.W. 3295 (1975); United

States v. Missouri, 515 F.2d 1365 (Sth Cir.), cert. denied, 4

U.S.L.W. 3272 (1975); see United States v. Scotland Neck

Board of Education, 407 U.S. 484 (1972). or when the state

participates in the private institutions. Norwood v. Har-

rison, 413 U.S. 435, 463-65 (1973).

The constitution cannot solve all problems. On the con-

trary, to the extent that it demands that rights which have

previously been overridden be enforced, it creates social

problems. It inconvenicnevs, sometimes substantially, law

enforcement oflicers, prison wardens, university administra-

tors, and government bureacrats. And, when it allows

tasteless books to be sold or movies shown, many are offend-

ed. But expectable individual, oflicial or group reaction does

not outweigh constitutional rights. We therefore must agree

with another court which said, ‘‘concern over ‘white flight’

... cannot become the higher value at the expense of render-

ing equal protection of the laws the lower value.’? Mapp v.

Board of Education of Chattanooga, supra, quoting 366

I’. Supp. 1257, 1260 (.D. Tenn. 1973).

The bright note in this otherwise somber picture is the

care and imagination that the district court has displayed in

structuring a diversified educational system offering super-

ior opportunities for children, both white and biack. The

plan is not a mechanical device to ensure that the races share

equally, but serves its constitutional goals within a frame-

work offering educational hope for the children of the city.

Nevertheless, federal courts have a limited jurisdiction and

34a

34 MORGAN VU. KERRIGAN

competence. To the extent ihat reorienting the Boston

school system involves social expenses, it must be paid for

in coin less dear than the constitutional rights of the city’s

citizens. Here as elsewhere, the Boston community must

look to other institutions, city, state, federal and private, to

contribute to an effort to vindicate the consitutional rights

of its citizens at a minimum of social cost.

B. Detailed Challenges to the Court’s Plan.

The issues we have discussed above address the constitu-

tional and statutory limitations on the court’s power to issue

a plan at variance with the Committee’s or the masters’ plan

(Parts A l and 2) and to refuse, in tailoring its plan to con-

sider evidence of the precise impact of prior oflicial segre-

gative actions and of the extent to which its plan might cause

the departure of white students from the school system

(Parts A 3 and 4). We now consider a range of more specific

objections to particular features of the plan and its method

of implementation.

1. altos aud the Hxamimation Schools,

Appellants School Cemmittee, Mayor and Association

challenge the district court’s use of racial pereentages and

quotas in several contexts: the guidelines for the composition

of the schools in community school districts, the guidelines

for the composition of citywide magnet schools, and the

minimum percentage of black and Hispanic students man-

dated to be admitted to the elite, examination schools. Appel-

lants claim that the district court’s use of pereentages was in

violation of the Supreme Court’s disapproval of fixed racial

quotas in Swann, supra. We find that the district court re-

sorted to percentages in an appropriate manner throughout.

The district court first ordered the overall racial composi-

tion to be used as a starting point in designing a school dese-

gregation plan. This approach is specifically approved in

* tliat Nin Dy Nandi i Ey oth FO ie ek w s

35a

OPINION OF THE COURT 39

Swann. In devising the court plan, community school dis-

tricts were drawn to provide for a rough equality of racial

composition among the districts to be desegregated.31 With-

in each community school district, the court ordered that

students should be assigned to particular schools so that each

school’s population approximates the composition of the

community district. A deviation margin of = 25 percent of

the racial percentage figures was allowed to provide flex-

ibilityin planning. The desegregated schools in Boston, there-

fore, range between 30-70 percent white and 30-70 percent black

and other minority under the plan.32 This use of statistical

ranges is consistent with other desegregation cases, United

States v. School District of Omaha, slip op. 35-37 (Sth Cir.

June 12, 1975) (citywide school racial composition, 807% W -

20% B; schools to be 0-35% B, 65-100% W); Yarborough v.

Hulbert-West Memphis School District No. 4, 457 F.2d 333

(8th Cir. 1972) (citywide elementary schools 47% W-53% B;

schools to be 30-70% W, 30-70 TB), and does not establish

racial quotas in contravention of Swann.

A more significant challenge is made to the guidelines for

the composition of the citywide magnet schools. Mach school

is to limit its enrollment to fall within 5 percentage points

31 Rough equality between distriets was desirable to allow students from all

the districts equal access to the citywide magnet schools without adversely

affecting desegregation of the districts.

The district court divided the school system into cight community districts

and a ninth citywide district. The overall racial composition of the system for

the 1975-76 school year was projected at 51% white (W), 429% black and other

minority (BLOM). The projected enrollments in the seven community districts

whieh would be desegregated ranged in racial composition from 619% W — 39%

B&OM to 40% W—60% B&OM. The ecizhth district, East Boston, was left

predominantly white because of its isolated geographic location.

32In district 4, with a projected racial composition of 61% W—39%

B&OM, the permitted viriance of the composition of the schools is

70% W—30% BOM; 50% W—50% B&OM. Because the percentage of

black and other minority students cannot fall below 30% (39% —25% (3°)

= 30%), the pereentage of white students ecannct rise «above 70%. The same

observation, in reverse, pertains to district 7, which is 40% W— 60% B&OM.

36a

36 MORGAN U. KERRIGAN

of the citywide racial eomposition.33 The district court

found that a narrow range of enrollment ratios was permis-

sible for schools in the citywide district because the practi-

ealities to be accommodated, primarily geographic elsewhere

in the system, were significantly smaller in the citywide

district schools.

There are, moreover, substantial positive reasons for en-

forcing a narrow range of permissible enrollments. The

magnet schools were designed to maximize voluntary dese-

gregation. Significant departures from the overall racial

composition could cause the magnet schools to hinder rather

than help the process of desegregation. First, attendance at

the schools is voluntary. Few individual students will choose

to attend a school which is predominantly of the other race.

Second, the students attending the magnet schools come

from the community school districts. If disproportionate

numbers of one race transfer to the citywide school district,

the racial composition of the community districts suffer.

lMundamentally, the magnet schools, in order to prove of

value to the desegregation plan, had to be carefully cireum-

scribed to ensure that they would not serve as a haven for

those seeking to attend a school predominantly composed of

those of their own race.

Finally, appellants challenge the district court’s order

that at least 35 percent of the incoming class at the elite,

examination schools be black or Hispanic as a racial quota.

At face value, this directive does appear to establish a fixed

racial balance for those classes at Boston Latin School,

Boston Latin Academy, and Technical High School. But,

once the schools are viewed as magnet schools, and as part

of the citywide school district, the objection disappears.

33 Since citywide project composition was 51% W—49% B&OM, magnet

schools could permissibly enroll 56-46% W, 44-54% B&OM. The bilingual,

bi-cultural magnet, Hernandez, was excepted from this requirement.

Debate Cetin. Lapin

37a

OPINION OF THE COURT 27

True, these schools are treated differentiy from the other

magnet schools in that only the entering classes are desegre-

gated, rather than the entire student body. This is to accom-

modate the cumulative nature of the instruction offered at

these schools. For the entering classes, however, the district

court’s order provides that the racial composition shall be

similar to that of the other magnet schools: at least 41%

black and other minority.34 It is, therefore, no more an im-

permissible racial quota than are the guidelines established

tor magnet schools generally.

There are, however, other, more fundamental challenges

to the district court’s treatment of the examination schools.

The Association protests the schools’ inclusion in the rem-

edial plan since no specilic segregative acts were proven in

their administration. It also claims that a racial preference

for admission is unconstitutional discrimination on the basis

of race. The Mayor challenges the rejection of several alter-

native plans for the desegregation of the examination

schools which would have imposed specilic admissions

criteria.

We start with the proposition that it is not unconstitu-

tional per se fur a city school system to operate an clite

school even though low income or minority children may be

under-represented in the student body, Berkelman vy. San

Francisco Unified School District, 501 F.2d 1264, 1267 (9th

Cir. 1974). The examination schools in Boston, however, are

an integral part of a school system which has been found to

be administered in an unconstitutional manner. They are

presumed to be unlawfully segregated. Keyes, supra. As

34 The entering elasscs normally enroll 6-8% Asian-Americans. When these

numbers are added to the black and Hispanic students, the pereentage of the

entering class which is characterized as black and other minority is in the

range of 41-43%. As school officials testified that it would be difficult to find

sufficient black and Hispanic students to satisfy the minimum figures, the

district court apparently did not consider it necessary to place an upper limit

on minority enrollment.

38a

38 MORGAN VU. KERRIGAN

such, the examination schools must be part of the remedial

plan. See Part A 3, supra.35

Several other plans for desegregation of the examination

schools were presented to the district court. All relied on the

Secondary School Admission Test (SSAT) to establish ad-

missions criteria.** The district court found that the SSAT,

although apparently of some predictive accuracy, had not

been validated as a means of identifying students who can

benefit from the examination schools’ curricula. Cf. Castro v.

Beecher, 459 F.2d 725, 732, 735-36 (1st Cir. 1972). Because

of the limited amount of statistical data available, moreover,

there was no assurance that any of these plans would admit

a significant number of minority students. Given these fac-

tors, we find that the court acted within its diseretion in re-

jecting the alternative plans.

The appellants claim that the district court’s order will

destroy the examination schools as clite acadamic institu-

tions. If the order were inflexibly to require, for some years

to come, the admission of blacks and Hispanics despite dem-

onstrable underqualification by validated selection process-

es, we would hesitate to affirm. But the order is a temporary

expedient, designed to ensure that the examination schools

35 This fact also disposes of the Association claim that imposing a racial

preference ai the examination schools is unconstitutional for those reasons

expressed in Justice Douglas’ dissent in DeFunis v. Odegaard, 416 U.S. 312, 320

(1974). Whatever the constitutionality of racial preferences in the absence of

past unlawful diserimina‘ion, they are a vLasic tool in remedying constitutional

violutions. See Castro v, Beecher, 459 F.2d 725, 737 (1st Cir. 1972).

36 The old method of selccting admittecs to the schools was mandated by a

consent deerce between the School Committce and the Massachusetts Commission

Against Discriminatior (MCAD). This deerce introduced the SSAT and

admission was based solely on the scores of that test. Az the plaintiffs were not

— to the MCAD iitigation, the district court was not bound by the consent

ceree.

An alternative plan, proposed by the alumni associations of the affected

schools, would linve Lad 65% of admission based on the SSAT scorcs alone, the

remaining 357% to be chosen in racial proportions but setting a score in the 50th

percentile on the SSA.T as a floor for admissions.

The masters’ plan allowed for grade point averages as well as SSAT scores

to be used, but adopted the use of a SSAT score floor.

os ah sae

ells SAU Eso mths ont cee acl IO ar A Ee Data 4 80

39a

OPINION OF THE COURT 39

participate in the desegregation of Boston schools, pending

development of racially neutral admissions criteria and the

desegregation of the elementary schools. Advanced work

classes at the elementary level which successfully feed stu-

dents into the examination schools are being desegregated.

Therefore, there is prumise that more minority students

will become eligible for admission to the examination schools

under any admissions standard.37 The parties have been

specifically invited by the court to develop admissions cri-

teria which ean be shown to identify accurately students who

can benefit from the examination schools’ prograins 401 F.

Supp. at 244. See Smuck v. Hobson, 408 F.2d 175, 187-90 (D.C.

Cir. 1969). We are convinced that the district court will

monitor the progress of desegregation in the examination

schools and will adj:st its future orders to ensure the con-

tinued vitality of these schools as clite institutions. lor the

present, however, we aflicem the court’s treatment of the

schools as within its discretion.

2. Challenges to Composition of Masters’ Panel Expert

Dentler and to the Masters’ Compensation.

After the various desegregation plans had been submitted,

the district court appoinied two experts to assist it in evalu-

ating the plans and also appointed a panel of four masters to

consider the desegregation plans, hold evidentiary hearings,

report to the court and recommend a desegregation plan. It

also directed the city defendants ; the School Committee, and

the Superintendent of Schools, to pay the masters compen-

sation of $200 per diem plus expenses. The Schoo] Coim-

mittee objected to the appointment of three of the masters

— Francis Keppel, Charles Willie, and Kdward MeCormack

—and of one of the experts— Robert Dentler—on the

87 Appellants claim that only 25% of admittees come from advaneed work

classes. While it is obvious that the examination schools cannot he completely

desetregated by the advanced work classes, desegregation of the classes is a

positive stcp.

40a

40 MORGAN VU. KERRIGAN

grounds that their associations with the plaintiffs rendered

them unqualified to serve.38 These objections were over-

ruled, and the masters and experts performed their assigned

tasks. On May 2, 1975, the district court ordered the city

defendants to pay the masters compensation of $21,906.13.

The School Committee objected,39 but its objection was over-

ruled. The School Committee appeals the district court’s

rulings on the qualifications of the masters and expert and on

the masters’ compensation.

There is no merit to the School Committee’s contention

that the district court’s failure to disqualify the masters and

expert constituted reversible error. We observe, prelim-

inarily, that the chance of error, if any, inflicting prejudice

was remote. We have held that the masters’ and district

court’s rejection of the School Conunittee’s desegregation

plan was constilutionally requi:ed. The masters’ plan, while

relied upon by the district court, was itself strengthened by

the district court and thereby made less acceptable to the

School Commitice. Moreover, the impartiality of the mas-

ters is suggested by their criticism and rejection of the plain-

tiffs’ plan. Thus, any error would scem to us to have been

rendered harmless. See Swann v. Charlotte-Mecklenburg

Board of Education, 421 ¥.2d 138, 148 (4th Cir. 1970), rev’d

on other grounds, 402 U.S. 1 (1971). We need not rest our

decision on this basis since we agree that there were no

grounds for disqualifying any of the masters or experts.

The basis for the School Committce’s objections to Mas-

28 The district court rested its decision on the qualifications of Master

MeCormack and Expert Dentler on the alternative ground that the School Com-

mittce’s objections were not timely filed. The objection to the qualifications of

these individuals took the f

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