Appendix — McDONOUGH v. MORGAN (No. 75-1445)

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— —EE =

Supreme Court, i. 5.

fe FILED

I APR 9 1976

MICHAEL POOAR, Tt, CLERK |

In the apenas

Supreme Court of the United States

Octoser Term, 1975

no. @5-1445

JOHN J. MecDONOUGH, ET AL.,

PETITIONERS,

Vv.

TALLULAH MORGAN, ET AL.,

RESPONDENTS.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JamEs J. SULLIVAN, JR.

Francis J. DiMento

Purp T, Trerney

DiMento & SuLLIVAN

100 State Street

Boston, Massachusetts 02109

Counsel for the Petitioners

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Page

Appendix A, Opinion of Court of Appeals for the

First Cireuit | 1

Appendix B, Judgment of the Court of Appeals for the

First Circuit dD

Appendix C, Memorandum of Decision and Remedial

Orders of the District Court for the District of

Massachusetts o7

APPENDIX A

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,

Vv.

JOHN J. KERRIGAN, et al,

DEFENDANTS, APPELLANTS.

BOSTON HOME AND SCHOOL ASSOCIATION,

DEFENDANT-INTERVENOR, APPELLANT.

KEVIN H. WHITE, ete., et al.,

DEFENDANTS, APPELLANTS,

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. W. Arruvur Garrity, Jr., U.S. District Judge)

Betore Corrin, Chief Judge,

McEnvee and CampBeE.L, Circuit Judges.

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

J. Sullivan, Jr., Pailip T. Tierney, and DiMento & Sullivan were

on brief, for John J. Kerrigan, et al.

Kevin F. Moloney for Kevin White et al.

Thayer Fremont-Smith with whom Owen S. Waiker, Choate,

Hall & Stewart, and Philip B. Kurland were on brief, for Boston

Home and School Association.

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

& Eliot, J. Harold Flannery, Rudolph F. Pierce, Keating & Pierce,

Thomas M. Simmons, Robert Pressman, Eric E. Van Loon,

Nathaniel R. Jones, and Roger I. Abrams were on brief, for

Tallulah Morgan, et al.

a aS ae

Timothy J. W. Wise, Assistant Attorney General, with whom

Francis X. Bellotti, Attorney General, Margot Botsford, Assistant

Attorney General, and Nandra L. Lynch, General Counsel, State.

Board of Education were on brief, for State defendants.

Richard Hiller, with whom Jack John Olivero, Herbert Tettel-

baum, Michael Haroz, Jean Mirer, and Pamela Taylor were on brief,

for El Comite De Padres Pro Defensa De Education Bilingue.

January 14, 1976

Corrix, Chief Judge. These appeals present varied chal-

lenges to orders of the district court implementing a plan

of desegregation for the public schools of Boston. The con-

colidated cases concern the remedy phase of litigation

initiated by plaintiffs-appeliees, representing a class of

all black public school students and their parents, against,

principally, the Boston School Committee and the Super-

‘ntendent of Boston Public Schools. The liability phase

eame to an end in 1974 with a district court finding of

substantial segregation in the entire school system inten-

tionally brought about and maintained by official action

over the years. Morgan Vv. Hennigan, 379 F. Supp. 410

(D. Mass. 1974).2 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 ap-

peal, 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

—_—-————

1 The court specifically found that segregative policies had oper-

ated in the following respects: in the utilization of facilities and

planning of new structures ; in drawing and redrawing school dis-

trict lines; in developing feeder patterns determining enrollments

at specific high schools; in the open enrollment policy, the subse-

quent controlled transfer policy and the exceptions thereto; in

the hiring, promotion, and assignment of black faculty and staff.

Beeause of the operation of the second presumption in Keyes V.

School District No. 1, 413 U.S. 189, 208 (1973), which it found

had not been rebutted, the court also held that official intentional

segregation infected the elite, citywide examination schools and

vocational schools and programs.

addition of parties to the litigation,? hearings as to the

nature, scope and objectives of a plan, submission and

criticism of various plans, consideration of all proposals

and preparation of a plan by a 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 F. Supp.

216 (D. Mass. 1975). On June 17, 1975, we denied ap-

pellants’ motion for a stay pending appeal, Morgan v.

Kerrigan, 523 F.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 organiza-

tions, 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.2 The schools are now

functioning 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

2 The original parties, in addition to the plaintiffs and the Boston

defendants, included the State Board of Education (nominal

defendants, although supporting the court’s order and appellee

here). Subsequently allowed to intervene were the Boston Teachers

Union, the Boston Association of School Administrators and Head-

masters, the Boston Home and School Association, and El] Comite

De Padres Pro Defense De La Education Bilingue. The Commis-

sioners of the Public Facilities Commission, the Director of the

Public Facilities Department, and the Mayor of Boston (herein-

after, 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 plan was commonly referred to

as Phase I. See 379 F. Supp. at 483.

order establishing 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, the School Committee voted not to

submit it5 It was, however, filed by the Committee’s

counsel. This plan ealled for six districts, with varying

iearning 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, ac-

cepting 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 enroll-

ments that were neither too small (e.g., a minimum of

29.4 percent in elementary 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 neighborhood school assignments, rather than of any

official actions of the School 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 irrelevant at the remedy

The order provided that the ‘‘starting point’’ for its desegre-

gation 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.”’

5 This action by the School Committee led to contempt proceed-

ings 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.

Morgan v. Kerrigan, 509 F.2d 618 (1st Cir. 1975). Subsequently,

the district court found that they had purged themselves, and,

ultimately, on January 27, W75, the Schoo! Committee did submit

a plan, different from the staff proposal filed by counsel.

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.

The School Committee’s plan, finally submitted on Jan-

uary 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 elemen-

tary schools) or a once-every-two-week (for middle level

schools) visit by paired black and white schools to a

‘‘third site’’ resources 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 Schoe] Committee’s January 27 plan — hold hearings,

and ‘‘mak recommendations to the Court’’.6 The masters

held hearings for over two weeks, and, after hearing argu-

§ An objection was made by the School Committee to the naming

of two of the masters on the ground that their association with the

Harvard Graduate School of Education constituted a disqualify’»«

interest in the Harvard Center for Law and Education, which

presently or formerly employed three attorneys representing plain-

tiffs. The School Committee also objected to the appointments of

a third master and one expert because each had in the past

supported the NAACP, which had provided financial assistance and

counsel to 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.

ment addressed to a draft report, issued their final report

on March 31, 1975. The masters found the School Com-

mittee plan inadequate, in large part because of its re-

liance 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 business organizations for

assistanee in program enrichment. Mandatory busing was

estimated by the masters to affect 10,700 to 14,900 stu-

denis.

The court then called for hearings on objections to the

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

meantime, the court had ealled 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 dis-

trict lines, and reflected — on the basis of the new data —

less racial disparity generally in schoo] assignments than

did the masters’ plan. The plan not only precisely set forth

the new districts but called for changes in the school sys-

tem’s administrative hierarchy, and established a system

of community participation in district and citywide coun-

cils. The mandatory busing estimated by the court would

affect 21,000 students. During this time of accelerated ac-

tivity, the court also appointed an ad hoe committee of

three attorneys to assist in obtaining support from col-

leges and universities, and ordered that school personnel

meet and confer with personnel from the designated col-

lege or university. Late in June the court authorized the

‘

court-appointed experts to resolve some remaining issues

relating to facilities utization, program allocation, and

enrollment limits. Each of these actions by the court has

been challenged, as well as the court’s plan itself. |

This skeletal recitation of chronology masks a year of

increasingly intensive activity in collecting and updating

data, preparing, evaluating, and amending plans embracing

a wide variety of approaches, and, finally, devising pro-

cedures and taking action to put into effect a plan calling

for a dramatically different educational system affecting

some 80,000 students. The pressure of time, the problems

of developing reliable data, the clash among radically dif-

fering approaches, the resistance of the School Committee,

the sheer numbers of parents, students, teachers, and ad-

ministrators 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 to the issues before

us. Some are of large significance. Same are of little

moment. For purposes 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

constitutionally sufficient, the Equal Educational Oppor-

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

eliminating the demonstrable effects of the School Com-

mittee’s unlawful actions.

a en ire et teil

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

School Committee, contend that the court’s plan is de-

fective 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 stan-

dard examination schools.

2. The School Committee challenges the appointment

of three masters and one expert and objects to the compen-

sation of ail four masters.

3. The School Committee objects to the court’s en-

croachment on its functions:

a. In specifying magnet programs ;

b. In requiring the participation of colleges and

universities ;

ce. In requiring the systematic involvement of a

City-wide Coordinating Council and Community Dis-

trict 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.

Four sweeping criticisms have been leveled at the court’s

vlan. 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

Equal Educational Opportunities Act of 1974, require more.

Se ee Uae]

oe Pela ae lt ee al

| b

The remaining two broad scale attacks do not assert a

barrier 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 so 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 be tailored which, by minimizing

such flight, would assure a maximum achievable co-educa-

tion among the races,

1. Sufficiency of the School Committee’s Plan.

Upon a finding that a school system has been operated

in contravention of the equal p) tection clause of the

Fourteenth Amendment to the constitution, the burden

falls upon the local school authorities to present a plan of

action to the district court to remedy the violations.

Swann v. Charlotte-Mecklenberg Board of Education, 402

U.S. 1, 16 (1971). Only on the default of the School Com-

mittee to proffer an acceptable remedial plan is the dis-

trict court empowered to fashion a remedy adequate to

produce a unitary school system. Jd. The threshold ques-

tion, 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 vy. County School Board,

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

standard, rejected the School Committee plan stating that

it ‘‘presented no more than a hope for desegregation in

Boston’’. 401 F. 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

ee re

constrained to reverse. See Keyes v. School District No. 1,

521 F.2d 465 (10th Cir. 1975); Jackson v. Marveil School

District No. 22, 416 F.2d 380 (5th Cir, 1969).

The plan submitted by the School Committee was, in

summary, a freedom of choice plan supplemented by

magnet schools and third site resource centers. The school

assignment process was to be based upon a series of op-

tions available 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 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-subscribed schools.’ In the event that schools

remained ‘‘racially isolated’’, defined by the school de-

partment as more than a 15 percent deviation from the

racial ratio for that level in the zone, the plan provided

for mandatory student participation in resource center

activities. The resource center proposal called for in-

tegrated 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 school students. The entire plan rested on student

and parental choice to desegregate the schools.

It is well established that freedom of choice plans to

desegregate school systems are not per se unconstitutional.

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

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

to deal with oversubseribed schools. These included the use of

temporary classrooms, and extension of the school year to increase

vapacity. The use of temporary classrooms to enable white schools

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.

tionally acceptable, however, it must promise to be as

effective in achieving a unitary desegregated system as any

alternative and feasible plan. Jd. Freedom of choice has

a long history of failure in achieving desegregation both

in the south, Swann, supra; Monroe v. Board of Commis-

sioners, 391 U.S. 450 (1968); Green, supra’ and in other

parts of the country, 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 voluntary plans were less

promising in the South than in the North, as segregated

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 exceptions. In an earlier stage of the

present case the district court found that this policy

served to increase, rather than decrease, segregation in

the school system. Morgan v. Hennigan, supra, 379 F.

Supp. at 449-59.

The School Committee contends that its plan, although

founded on freedom of choice, held promise to achieve

desegregation 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 voluntary desegregation has failed elsewhere,

8 Accord, Bivens 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 (5th Cir. 1970); United States v. Hinds

County School Board, 417 F.2d 852 (5th Cir. 1969) ; United States

v. Jefferson County Board of Education, 417 F.2d 834 (5th Cir.

1969): Hall vy. St. Helena Parish School Board, 417 F.2d 801

(5th Cir. 1969); Jackson v. Marvell School District No. 22, 416

F.2d 380 (8th Cir. 1969); United States vy. Lovett, 416 F.2d 286

(8th Cir. 1969) ; Anthony v. Marshall County Board of Education,

409 F.2d 1287 (5th Cir. 1969) ; United States v. Greenwood Munici-

pal Separate School District, 406 F.2d 1086 (Sth Cir. 1969).

Bradley v. Milliken, 484 F.2d 215, 243 (6th Cir. 1974),

rev’d on other grounds, 418 U.S. 717 (1974); Kelly v.

Guinn, supra; Spangler v. Pasadena City Board of Edu-

cation, 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 experience with one school which offered

a specialized program and achieved a racialiy mixed stu-

dent body,® we must agre with the district court that

schools offering programmatic alternatives, while a useful

supplement to an otherwise adequate desegregation plan,

could not realistically sustain the burden of achieving de-

segregation of the Boston city schools.”

Finally, the School Committee plan to remedy ‘‘racial

isolation’’ with part-time integrated resource centers added

nothing to the effectiveness of the overall plan. The ob-

jective sought to be achieved in a remedial plan is dese-

gregation, not interracial experience or racial balance.

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

similar part-time programs 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 (Sth Cir. 1974); United States v. Texas

Education Agency, 467 F.2d 848, 859 (Sth Cir. 1972),

and must be rejected here.

— —__

®The Trotter School was designed to offer cultural enrichment

programs for children from AFDC families. White students resid-

ing in AFDC homes from outside the city of Boston made up part

of the student body. 379 F. Supp. at 430.

10 The masters found:

‘‘The magnet concept as devised by the Committee is un-

realistic and unworkable. Magnet programs could assist de-

segregation if they satisfied certain conditions. They must be

limited in number, and they must be carefully placed, so that

the effect of the applications they attract is to promote

desegregation. The Committee Plan, which proposes the intro-

duction of many magnet programs, satisfies none of these

conditions, and could not possibly be put into operation by

September, 1975.’’

‘

;

Against this historical background which promised

failure for every feature of the School Committee plan,

it is inconceivable that anyone, the Schoo] Committee mem-

bers or the court, could believe that the plan would be

effective in eliminating and guarding against officially im-

posed segregation in Boston." The district court, there-

fore, was clearly correct in declaring the School Com-

mittee in default of its obligation to present a constitu-

tionally adequate plan. It was the district court’s unques-

tionable duty to utilize all the resources available to it

as to fashion expeditiously a remedy that realistically

would produce a unitary school system. Swann, supra.

2. Lhe Constitutional Adequacy of the Masters’ Plan

and the Applicability of the Equal Educational Oppor-

tunities Act of 1974.

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

tially joined in by the Association, is that, since the

masters’ plan was constitutionally sufficient, the court

was without power to require more busing than that con-

templated 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 manifes:, an in-

11Comments 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 see a voluntary desegre-

gation system put into effect. It is not a practical reality.

Of course I will vote for this.”’

‘*T would never vote for a plan that involved the busing

of school children. It is unfortunate that is the way our

society exists ... but the only way you are going to desegre-

gate city schools is through forced busing.’’

The only member of the School Committee to refuse to vote for

the pian stated:

**] 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.

tention 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 ‘‘impose only such

remedies as are essential to correct particular denials of

equal educational opportunity or equal protection of the

laws.’? 2. 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 as-

signments close to home, transfers which would improve

racial balance, revision of zones, and the construction 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 ne-

cessity; and comparison with other cases demonstrates

that in fact the masters’ plan was constitutionally suf-

ficient; therefore, the court exceeded its powers.”

12 Qne 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. ...’’

13 The Association also argues that the adoption of the masters’

plan was required by F. R. Civ. P. 53(e)(2), on the theory that

the ‘‘delineation of districts was a factual determination’’ which

could not be changed by the district court unless found to be clearly

erroneous.

This argument misconceives the types of reference made in this

ease, Rule 53(c) provides that ‘*[t]he order of reference to the

master may specify or limit his 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 public schools together with the reasons for recommending

that plan, including discussion of the key issues.’’ This clearly

The niasters filed their final recommendations on March

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

statistics 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 distriet court in its May 28

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

dations contained the key elements and formed the founda-

tion of the plan promulgated by the court.’? The most

significant change effected by the court was a change in the

number of geographic districts from 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 basie factual

promise is open to some doubt, we need not rest our

decision on such a necessarily elusive determination.“

described a mission not involving findings of fact meriting deferen-

tial 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 $53.12[2], at 3002; Matter of Van Swearingen

Corp., 180 F.2d 119 (6th Cir. 1950). See Hart v. Community

School Board, 383 F. Supp. 699 (E.D. N.Y. 1974). aff’d, 512 F.2d

37 (2d Cir. 1975). This reference was not a substitute for trial,

where the master to a large extent takes over the fact-finding

process; the district judge could not delegate his duty to evaluate

for himself what actions had to be undertaken in order to remedy

past failure to comply with the constitution. Indeed. we doubt

that the determination of district boundaries is accurately deseribed

as purely factual in nature, given the nature of this ease.

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 submitted by the Schoo! Department shortly

after the masters’ final report was filed, Both as to racial compo-

sition and numbers of students in the districts, the new figures

rendered the factual assumptions underlying the masters’ determi-

nation clearly erroneous.

* 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 re-

mained essentially intact. For example, the Burke district. elimi-

nated by the court, had a capacity of 8,250 and an enrollment

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

it as containing 11,620 students. Even after assuming that some

We proceed to examine the district court’s duties and

powers, as they are affected by the Equal Educational

Opportunities Act of 1974; whether the court purported

to be guided by the Act; and whether its findings and con-

clusions are sufficiently supported.

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

date governing federal judges was to accomplish ‘‘the

transition to a unitary, nonraciai system of public educa-

tion’? 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 ac-

count the practicalities of the situation.”’ Davis v. School

Commissioners of Mobile County, 402 U.S. 33, 37 (1971).

of the overflow would be absorbed by citywide magnet schools,

there would remain perhaps 2,000 excess students. The Mayor

does not show that shifts in district lines to accommodate these

students either by merging contiguous neighborhoods and their

schools into Burke or by removing fringe neighborhoods from it

would not encounter the difficulty of increasing Burke's percentage

of black students, already a high 639%. Although the amount of

additional busing that would have been needed to take care of this

situation is a matter of conjecture, it would appear to be substan-

tial. if increased segregation*were to be avoided.

Not only student population but racial concentration estimates

of the masters were at odds with the realities of the new figures.

The following discrepancies were found to exist :

Possible result of

New figures allowed deviation

applied by court of + 10 percentage

Master’s to points within

final report masters’ districts each school

West Roxbury 80% W 93% W 100% W

South Boston 60% W 67% W 77% W

Burke 50% B 63% B 73% B

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

ered, represented 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 toler-

ated the higher concentrations shown by the new data.

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

anything close to the mandatory busing of 6,100 more students is

therefore significantly vulnerable.

And in so doing, ‘‘the scope of [their] equitable powers

to remedy past wrongs is broad, for breadth and flexibility

are inherent in equitable remedies,’ Swann, supra, 402

U.S. at 15 (1971).

The Act disavows any intention to encroach upon the

obligation of the courts ‘‘to enforce fully’’ the constitu-

tion, § 1702(b). 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 adequacy 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 manifests a purpose not to limit judicial power

but to guide and channel its exercise. In a sense it is a

statutory “‘less restrictive means’ guideline, endeavoring

to ensure that substantial compulsory transportation be

used as a last resort. Our reviewing function remains the

limited one of scrutinizing the record for sufficient 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 district court’s findings

must reflect a substantial consideration of the less re-

strictive means which Congress has required to be explored

and used prior to restoring to compulsory transportation

of any magnitude."* We turn therefore to an analysis of

these two areas.

Initially, we look to whether the remedy imposed in this

case reflected the channelling contemplated by the Act. On

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

1° As the court said in Brinkman vy. Gilligan, 518 F.2d 853, 856

(5th Cir. 1975), ‘‘We construe the 1974 Act, read as a whole,

as not limiting either the nature or the scope of the remedy for

constitutional violations in the instant case.”’

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 his 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 distribu-

tion in the city. 20 U.S.C. § 1713(a)(b), § 1714. Revi-

sion of attendance zones and grade structures, con-

struction of new schools and the closing of old schools,

a controlled transfer policy with limited exceptions

and the creation of magnet schools have been used in

the formation of the plan here adopted in order to

minimize mandatory transportation. 20 U.S.C. § 1713.

The court finds, however, that some transportation

of students to schools other than those next closest

to their residence is required to remedy adequately

the denial of plaintiffs’ constitutional rights and to

eliminate the vestiges of a dual school system in Bos-

ton, 20 U.S.C. § 1702(b), § 1714(a).’’ 401 F. Supp. at

264,7¢

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, ete.) was used

by the court than to whether the remedial plan as a whole

16 Additional comments in the same vein are to 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 continu 1g 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 desegre-

gating the city’s schools.’’ ‘*The plan adopted by the court

attempts to minimize forced busing.”’

tc A ee

effectuated more desegregation (and as a result more

busing) than was required. Since this argument 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.

We turn, therefore, t-» those principles and our traditional

reviewing function.

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

complished. Assuming that it involves the forced 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 un-

skewed, contiguous, compact districts without extensive

gerrymandering or satellite zoning. It should be borne in

mind that compulsory busing occurs only within, not be-

tween, 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 (predictable 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 school. This compares with

parameters in the masters’ plan, when the newer School

Department data are taken into account, which are substan-

tially more extreme at both ends, As for the compulsory

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

the average being 2'% miles, 10 to 15 minutes,

Could the district court have reasonably found this ad-

ditional desegregation to be constitutionally required? ”

To put it another way, does the court’s plan go beyond

‘‘every effort to achieve the greatest possible degree of

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

by referring to other cases, affirmed by courts of appeals, where

more schools were allowed to remain all black or more dominantly

black than the masters’ plan contemplated. Apart from the

Mayor's assumption that the masters’ plan contemplated no school

more than about 53% black an estimate which, in the light of the

new data, should 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 approved. In three cases, Mims v. Duval County

Nehool Board, 329 F. Supp. 123 (M.D. Fla.), aff'd, 447 F.2d 1330

(oth Cir. 1971); Goss vy. Board of Education, 482 F.2d 1044 (6th

Cir. 1973) (en bane); and Northeross vy. Board of Education, 489

F.2d 15 (6th Cir, 1973), geographic factors and, at least in Mims

and Northcross, the desire to avoid extensive long distance busing

were relied upon to justify the lesser degree of desegregation

attempted. In two eases, Pate v. Dade County School Board, 434

F.2d 1151 (5th Cir. 1970) and Ross vy. Eckels, 434 F.2d 1140 (5th

Cir. 1970), while more all black schools were permitted to remain,

the courts of appeals had insisted on reducing the number of

pupils attending such schools to around 5% of the total school

population. Were we to take this statistic as a control, we would

have to declare the court’s plan, which leaves over 7% of the total

student population attending the East Boston white schools, con-

stitutionally inadequate. The remaining case, Carr v. Montgomery

Board of Education, 377 F. Supp. 1123 (M.D. Ala. 1974), aff’d

per curiam, O11 F.2d 1374 (5th Cir. 1975), coneededly insisted on

a less stringent plan. Whether the desire to avoid cross-city’ busing

would be, in our minds, sufficient to justify the lower objective,

we have no reason to decide. The exercise of one distriet court's

diseretion, in a particular ease, though affirmed on appeal, can-

not establish constitutional limits&for other courts faeing other

circumstances.

actual desegregation, taking into account the practicalities

of the situation’’? Davis, supra, 402 U.S. at 37. The

‘*practicality’’ of white flight is not a viable basis for

declaring the plan invaid. See part A 4, infra. Apart from

the practicality of geography which induced the court to

exempt East Boston from Phase Il, we see no other geo-

graphical factor of significant dimensions. To the extent

that funding is a problem, 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, §§ 7A, 7B, 371 (ii). The

amount of additional desegregation which was ‘‘pur-

chased’’ by the court’s plan was neither trivial nor dis-

proportionately burdensome. When we ask ourselves

whether a slight increase of maximum percentage of plan-

ned white enrollment at some schools, or leaving some

elementary schools unaffected, or adding a few more

magnet schools would achieve the constitutional minimum

with less compulsory busing, we realize that the concept

of the min: ium cannot be identified with precision. What-

ever prescription 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 holding that the court exeeeded 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 de-

segregation plan that was designed to restore the racial

composition 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 deter-

mine 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 elementary 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 School 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 Oc-

tober 31, 1974, the district court treated the Association’s

document as both a motion to modify the remedial guide-

lines prescribed by that order and as a proposed desegre-

gation plan. The district court held a hearing on the

issues presented by the Association on January 23, 1974.

In support of its plan, the Association offered to introduce

evidence that would establish that population patterns, not

illegal state action, caused the existing racial segregation

in the schools in question. The distriet court denied the

motion to modify the remedial guidelines, holding that

the Association’s remedial theory was inconsistent with

the controlling Supreme Court precedents.’* The court also

held that the Association’s desegregation plan was con-

stitutionally inadequate and could not be considered by

the masters. Finally, the court refused to admit the

Association’s evidence, on the grounds that it was irre-

levant since the only question before the court at that time

was how to accomplish the greatest amount of actual

desegregation consistent with the practicalities of the cir-

cumstances 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

———

8 The district court also ruled that modification was not required

by the Equal Edueational Opportunities Act of 1974. See note 24

infra.

»*"

remedy in terms of the specific consequences of the proven

constitutional violations, and, second, in rejecting the evi-

dence 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 aseertain 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 the Fourteenth Amendment itself.

Since the amendment prohibits 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 viola-

tion.

Although the theory possesses some surface plausibility,

the Supreme Court precedents clearly establish that the

district court was correct in rejecting the Association’s

proposed modification of its remedial guidelines. The

remedial principles set forth in Swann, Davis, and Green

do not tolerate anything less than ensuring that the effects

of constitutional violations are eliminated, and we are

certain that the application of the Association’s remedial

theories could not eradicate the effects of state imposed

segregation.”

19 A remedy may sometimes properly ‘‘exceed the violation’’ in

that it may do more than eradicate 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 places 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 restrictive standard

than that imposed by the Sherman Act itself. See United States

v. United Shoe Machinery Corp., 391 U.S. 244 (1968).

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

case, the district court found that the School Committee’s

policies regarding 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, 453-37, 442-45, 455, 459, 466-68, and 472.

The latter part of the district court’s opinion dealt speci-

fically with the Schoo] Committee’s defenses that the racial

segregation in the Boston schools — which it conceded to

exist — resulted from private residential patterns and/or

its racially neutral neighborhood school policy. The dis-

trict court found that Boston had never followed a true

neighborhood school policy and rejected the defense, re-

lying in part on its earlier findings. 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

schoo! system as a whole violated the Fourteenth Amend-

ment. Although the defendants could have limited the geo-

graphic scope of the violation by proving that parts of the

Boston school system were geographically unrelated to

the rest of the system and had not been operated with

‘‘segregative intent,’’ Aeyes, supra, at 203-05 and 210-13,

the School Committee failed to satisfy this burden with

respect to any portion of the system. We affirmed the dis-

trict court’s findings and legal conclusions 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 liability, 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 sep-

arated from governmental causation, This second battle

would be considerably more complicated than the first.

The logical implheation 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 attributable to official action. The dis-

trict court could be faced with the task of making per-

centage 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.®® See also Keyes, supra, at 200 and 214.

20The Association recognizes that Swann, Davis, and Green

provide that, during the remedial phase of a school desegregation

case, the district court must order the maximum practicable deseg-

regation regardless of the degree to which the actual segregation

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 principles to cases in which there had previously been

a statutory dual school system fails. In Swann and Davis, the

Court clearly did not proceed on the assumption that the appli-

cation 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 statutory

dual system and adopted a ‘‘neighborhood’’ school policy was, to

some extent, a consequence of private residential patterns. Se¢

These cases establish that when intentional official action

has significantly contributed to segregation in substantial

portions of a school system, the individual schools in the

system must be subjected to the maximum feasible dese-

gregation if official action ‘‘created or maintained’? the

racial segregation contained therein. Swann, supra, at 21

and 28. See Keyes, supra, at 214. In the Boston case, the

School Committee had the opportunity to prove that of-

ficial action had not contributed to the segregated character

of some of the individual schools in the system, but the

discrict court found that the School Committee had failed

to satisfy this burden.” Hence, under Swann, the district

Swann, supra, at 25-26; Davis, supra, at 36. The Court clearly

provided that, although all the remaining segregation 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 desegre-

gation 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 desegre-

gation is required unless the school authorities can demonstrate

that their actions in no way contributed to the segregated character

of the individual schools. See, e.g., Lee v. Macon County Board

of Education, 488 F.2d 746 (35th Cir. 1971); Goss v. Board of

Education of Knoxville, 443 F.2d 632 (6th Cir. 1971) Clark vy.

Board of Education of Little Rock, 465 F.2d 1044 (8th Cir. 1972) -

Brewer v. Board of Education of Norfolk, 397 F.2d 37 (Ath Cir.

1960).

* The Association places extensive reliance on the language in

Swann that provides that school authorities may, at the remedy

stage, 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 discrimi-

natory action on their part. Swann, supra, at 26. Swann. however.

cannot be read as supporting the proposition that causation is

at issue during the remedial phase of a school desegregation case

when there has been a trial on liability. The burden this language

describes is essentially identical to that which the presence of

substantial intentional segregation shifts to the Schoo] Committee

during the trial on liability. Sce Keyes, supra, at 203-05, and

210-11. In Swann, the school authorities were afforded the oppor-

tunity to satisfy this burden at the remedy stage of the proceedings

because here had been no trial on liability. Here, of course, the

school authorities have had their chance.

court was obligated to fashion a remedy that would ac-

complish the greatest amount of system-wide desegrega-

tion taking into account the practicalities of the situation.

Swann, 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 each and every school in

a system, ‘‘common sense’’, to use the words of the Court,

supports the conclusion that effects of the proven diseri-

minatory actions pervade the school system as a whole.

Keyes, supra, at 201. Acts that establish one school as

white or as black wili have a reciprocal effect on the racial

composition of nearby schools. /d. at 202-03; Swann, supra,

at 20-21. The use of various devices to earmark schools

according to their racial compositions may well have had

a ‘‘profound effect on the racial composition of the resi-

dential neighborhoods within the [city], thereby causing

further racial concentration within the schools.’’ Keyes,

supra, at 202. ‘‘People gravitate toward school facilities

just as schools are located in response to the needs of the

people.’? Swann, supra, at 20.”

From a practical point of view, the problems of de-

termining 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 school

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

22 Por example, although a dominantly white school in a white

neighborhood may appear to be wholly the result of the ethnic

patterns of the neighborhood, when the School Committee has

taken steps to incorporate the residential segregation into the

schools. to earmark 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.

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 re-

examine each school to determine the shares of segregation

attributable to public and private action, the application

of the Association’s theory would fail to vindicate the

constitutional 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. Ker-

rigan, 509 F.2d 599, 600 n. 3 (Ist Cir. 1975); see Brown

v. Board of Education, 347 U.S. 483, 494 (1954). Even

if the court could reliably determine that 40 percent of a

school’s segregation was caused by official action and 60

percent by private residential patterns, it could not bifur-

cate an individual student. The result would inevitably be

that some victims of the School Committee’s official policy

would be forced to continue a segregated education.

Apart from the failure of the Association’s theory to

remedy the violations of individual rights per se, its

adoption would seem to us to turn the process of desegre-

gation on its head. Unconstitutional segregation is defined

not only by percentages but also by community and ad-

ministrative 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 govern-

mental causation is to involve the federal courts in plan-

ning continued segregation and in perpetuating the com-

munity and administrative attitudes and psychological ef-

fects which desegregation should assuage, Cf. Wright v.

Council of City of Emporia, 407 US. 451, 465-66 (1972).

*3The Association places considerable reliance on Milliken v.

Bradley, 418 U.S. 717 (1974), and. in particular, on its statement

that ‘‘the remedy [in a school desegregation case] is necessarily

we 12 Show

Ola | > eet B

tle.

a ORR A en 8

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

quauty of faculties supplied, than other schools. The court

had good reason to believe that if black and Hispnic stu-

dents were not spread, visibly and bodily, in the .>ain-

stream among schools throughout the system, the racial.”

identifiable schools in which th y remained would con-

tinue to invite discriminatorily unequal treatment evading

timely and effective remedy. A racially mixed population

in each school would, on the other hand, be an insurance

policy against any purposefully unequal allocation of re-

sourees. While the liability phase of this case primarily

involved discriminatory separation, the realistic prospect

of discriminatory inequity 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. ‘

It is clear, therefore, that practical considerations as

well as established principles mandated the rejection of

the Association’s remedial theory.* Hence, we hold that

designed, as are all remedies, to restore the victims of discrimi-

natory conduct to the position they would have occupied in the

absence of such conduct.’’ Id. at 746. Although we understand

why the Association believes this language supports its position,

we read this language as entirely consistent with the continued

application of the remedial principles of Swann and other such

eases. As we have demonstrated, restoring the victims of unconstitu-

tional segregation requires far more than eliminating the specific,

demonstrable effects of the proven discriminatory acts. Restoration

is necessarily a complex and widespread process.

24'The Association also contends that the Equal Educational

Opportunities Act of 1974 required the district court to adopt its

remedial theory. In particular, the Association points to § 213

of the Act, which provides that ‘‘in formulating a remedy for

_a denial of equal protection of the laws, a court . . . shall seek

or impose only such remedies as are essential to correct particular

denials of . . . equal protection of the laws.’’ 20 U.S.C. § 1712.

This language, like the statement from Milliken v. Bradley, 418

that district court did not err in refusing to modify its

remedial guidelines.

It follows that the district court was correct in refusing

to admit the Association’s evidence on the causes of the

existing 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 segrega-

tion in the Boston schools, the evidence was legally irre-

levant at this stage of the proceedings.”® The only question

before the district court was how to accomplish the greatest

amount of actual desegregation consistent with the prac-

ticalities of the circumstances. To the extent that the evi-

dence was offered to rebut the Keyes presumptions, it

‘ame too late and was barred by established principles of

preclusion.*® It is elementary that the district court was

U.S. 717, 746 (1974), discussed in note 23 supra, is entirely con-

sistent 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 desegregation

is ‘essential to correct [the] particular denials of equal protection

{that oecurred].’’ See note 23 supra.

29 At oral argument, the Association argued that the Tenth Cir-

cuit’s recent decision on remand in Keyes y. School District No. 1,

921 F.2d 465 (10th Cir. 1975) (Keyes 11), supports its contention

that, even after a trial on liability, the district court is under an

obligation 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 admitted in Keyes IJ pertained to the question of

liability, not to remedy. Jd, at 471-73.

76 The Association suggests that it should be permitted to attempt

to rebut the Keyes presumptions now because the defendant School

Committee was not afforded an opportunity to do so at the liability

Stage of proceedings since Keyes had not been decided at that

time. We find this suggestion utterly without merit. The effect

of Keycs was before the district court during the trial on liability,

it having been decided on June 21, 1973, a time when that trial

had been reopened. The School Committee did not seek a reopen-

ing on the issues presented by Keyes; it described Keyes as a

restatement of the principles of the earlier Supreme Court de-

cisions. In any event, the district court found that the record was

sufficiently complete to apply Keyes, 379 F. Supp. at 479, and that -

finding was not challenged on appeal.

a ere ew een Ta

not required to reopen factual findings and legal conclu-

sions reached after vigorous litigation — the whole point

of which was to determine whether the segregation which

coneededly existed was caused by unconstitutional state

action -— and affirmed on appeal. See, e.g., White v. Hig-

gins, 116 F.2d 312, 317-18 (Ist Cir. 1940); Bee Mach Co.

v. Freeman, 131 F.2d 190, 192-93 (1st Cir.), aff'd, 319

U.S. 448 (1943); Hodgson v. Brookhaven Gen'l Hospital,

470 F.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 ac-

commodation, Morgan vy. Kerrigan, 401 F. Supp. at 233-34.

See Davis, supra, at 37. The Mayor and the Association

challenge this ruling as an abuse of discretion, claiming

that ‘‘white flight’’ alters the effectiveness of a desegre-

gation plan and leads to ‘‘resegregation’’ of the schools.”

White flight is an expression of opposition by individuals

in the community to desegregation of the school system.

Monroe, supra; Jackson vy. Marvell School District No, 22,

416 F.2d 380 (Sth Cir. 1969); Lee v. Macon County Board

of Education, 448 F.2d 746 (5th Cir. 1971). From the

inception of school desegregation litigation, accommoda-

tion of opposition to desegregation by failing to implement

a constitutionally necessary plan has been impermissible.

Brown vy. Board of Education, 349 U.S. 294 (1955) (Brown

27 In the alternative, it is claimed that the district court should

have taken white flight into account in modifying the masters’

plan. See Part A 2, supra. The masters, however, rejected consider-

ations of white flight in drafting their plan.

28‘‘But it should go without saying that the vitality of these

constitutional principles eannot be allowed to yield simply because

of disagreement with them.’’ 349 U.S. at 300.

Appellants contend, however, that white flight differs

from other forms of opposition, because its effects, the

withdrawal 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.2® To prevent this result,

29 Subsequent to the district court decision, we allowed to be

filed, subject to a determination of relevance, voluminous affidavits

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

‘‘legisiative facts’’ relevant to a determination of the law govern-

ing the district court in this matter.

For reasons we discuss in the text, we reject all these materials

as irrelevant to the issues before us on this appeal. We include

a brief synopsis of these materials to illustrate the difficulty in

evaluating white flight if it were relevant.

The data submitted initially by the Association consists of an

affidavit and report prepared by James S. Coleman, Professor of

Sociology at the University of Chicago. Dr. Coleman states that

his recent study shows that while there is decreasing segregation

within school districts, segregation between school districts in the

same metropolitan area is increasing; that rapid increase in loss

of white children from central city schools follows immediately

after school desegregation; and that as a consequence, desegre-

gation has not significantly raised the levels of academic achieve-

ment of blacks.

Plaintiffs counter with the transcript of testimony by Jane R.

Mercer, Associate Professor of Sociology, University of California

at Riverside, in a case involving Indianapolis. Her testimony shows

that she studied desegregation in school districts throughout the

state of California; that white exit to private schools is a short

term phenomenon; and that declines in whiie 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 Educaiion magazine, which sum-

marizes other studies 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, criticize Dr. Coleman’s methodology, claiming that the

source of his raw data is unknown; that failure to evaluate large

Rte ome ae

appellants claim that the district court should consider

white flight a ‘‘practicality’’, and limit the amount of

cities which have been subject to massive desegregation 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 School 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. Ile defends his methodology, states that

his conclusions are consistent with the findings of the studies cited

by Weinberg, and the studies conducted by Dr. Mercer. Dr. Cole-

man 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 high proportion of blacks in the central city and

suburbs of a significantly different racial composition.

Plaintiffs, in rebuttal, file another study prepared by Christine

Hl. Rossell, of Boston University. The Rossell study, prepared

from data on 86 northern school districts subject to court ordered

or legislatively enacted school desegregation, suggests that white

flight is minimal and a temporary reaction to school desegregation.

Plaintiffs claim that Dr. Rossell’s study differs from Dr. Coleman’s

in that Dr. Rossel! deals only with northern school districts subject

to desegregation plans while Dr. Coleman does not distinguish

between forms of desegregation.

In the final submission, Dr. Coleman defends his study against

the Rossel] findings, suggesting that her analysis is inadequate to

examine the effects of desegregation on a core city school system.

He further claims that his model has proved accurately predictive

of the Boston experience.

Throughout this series of submissions this court has been bur-

dened with reports written for sociologists by sociologists utilizing

sophisticated statistical and mathematical techniques. We lack the

expertise to evaluate these studies on their merits. We do come to

one conclusion, however. The relationship between white flight and

court ordered desegregation is a matter of heated debate among

experts in sociology, and a firm professional consensus has not yet

emerged.

Appellants have also filed with this court copies of the Boston

School Department's current census of students according to race

and minority group. The figures facially suggest loss of a significant

number of white enrollees. We note, however, that the district

court is currently studying the accuracy of past enrollment data.

We decline to make any conclusions concerning the existence or

nonexistence of white flight on the sparse figures available to us.

desegregation to that level which would enjoy acceptance

in the white community.

There are two endemic flaws in this argument. First, in

the trial on liability, evidence was presented that feeder

patterns, district lines, and open transfer policies were

established for the purpose of satisfying purported white

community desires, 379 F. Supp. at 438, 449. This evidence

resulted in a finding that the Boston schools were ad-

ministered 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 otker words, while appellants dwell upon the

unpleasant prospect of an inner city black school system

3° Appellants suggested approach would necessarily involve the

district court in something like the following analysis: (1) take

evidence concerning the prospects of white flight under the various

plans proposed; (2) exclude the causes of such flight attributable

to any historic trend, or such factors as overcrowding, transpor-

tation difficulties, deteriorated housing, taxes, crime, pollution,

industrial migration, ete.; (3) make a judgment as to the effect

which different levels of desegregation would have on white flight ;

and (+4) select or devise that plan which will incorporate enough

desegregation to bring about the maximum amount of inter-racia!

contact in the schools after taking account of the white flight such

desegregation would be expected to induce.

The experts have difficulty in attempting to justify conclusions

us to the effect of past desegregation plans on white flight,

see note 29 supra; the task of making estimates of expected exodus

of whites attributable to varying future desegregation plans would

seem to be more difficult. Conceivably, publie attitude sampling

could be undertaken, using various hypotheses. This might involve

questioning parents in a particular section or school d-strict 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 the

prospect of any substantial amount of desegregation or busing

would provoke sufficient 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.

_—.

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

constitutional definition of unlawful segregation. The Su-

preme Court has recently reemphasized that the consti-

tutional right is to attend school in a unitary, non-

discriminatory, 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. Bradley, 418 U.S. 717, 746 (1974). Accord

Calhoun v. Cook, No. 74-2784, slip op. at 396 (5th Cir.

Oct. 3, 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 ‘‘resegregation’’ is not constitu-

tionally recognized segregation. It is racial isolation im-

posed by historic school district boundaries, Milliken v.

Bradley, supra, or by individual choices to attend private

institutions. Compare McCrary v. Runyon, 515 F.2d 1082

(4th Cir.), cert. granted, 44 U.S.L.W. 3279 (1975). This

racial isolation becomes constitutionally significant only

when the district boundaries are drawn with segregative

intent, Evans v. Buchanan, 393 ¥. Supp. 428, 445-46 (D.C.

Del.), aff’d, 44 U.S.L.W. 3295 (1975); United States v.

Missouri, 515 F.2d 1365 (8th Cir.), cert. denied, 44 U.S.L.W.

3272 (1975); see United States v. Scotland Neck Board of

Education, 407 U.S. 484 (1972), or when the state par-

ticipates in the private institutions. Norwood v. Harrison,

413 U.S. 455, 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 overriden be enforced, it creates social

problems. It inconveniences, sometimes substantially, law

enforcement officers, prison wardens, university adminis-

trators, and government bureaucrats. And, when it allows

tasteless books to be sold or movies shown, many are

offended. But »xpectable individual, official or group reac-

tion docs not outweigh constitutional rights. We therefore

must agree with another court which said, ‘‘coneern over

‘white flight’... cannot become the higher value at the

expense of rendering equal protection of the laws the

lower value.’’ Mapp v. Board of Education of Chattanooga,

supra, quoting 366 F, Supp. 1257, 1260 (E.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

superior opportunities for children, both white and black.

The plan is not a mechanical device to ensure that the

races share equally, but serves its constitutional goals

within a framework offering educational hope for the

children of the city. Nevertheless, federal courts have a

limited jurisdiction and competence. To the extent. that

reorienting the Boston school system involves social ex-

penses, it must be paid for in coin less dear than the

constitutional rights of the city’s citizens. Here as else-

where, the Boston community must jiook to other institu-

tions, city, state, federal and private, to contribute to an

effort to vindicate the constitutional 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 con-

stitutional and statutory limitations on the court’s power

to issue a plan at variance with the Committee’s or the

masters” plan {Parts A 1 and 2) and to refuse, in tailoring

a CM te

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its plan to consider evidence of the precise impact of prior

official segregative 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. Raties and the Examination Schools.

Appellants School Committee, Mayor and Association

challenge the district court’s use of racial percentage and

quotas in several contexts: the guidelines for the composi-

tion of the schools in community school districts, the guide-

lines for the composition of citywide magnet schools, and

the minimum percentage of black and Hispanic students

mandated to be admitted to the elite, examination schools.

Appellants claim that the district court’s use of percentages

was in violation of the Supreme Court’s disapproval of

fixed racial quotas in Swann, supra. We find that the dis-

trict court resorted to percentages in an appropriate man-

ner throughout.

The district court first ordered the overall racial com-

position to be used as a starting point in designing a

school desegregation plan. This approach is specifically

approved in Swann. In devising the court plan, com-

munity school districts were drawn to provide for a rough

equality of racial composition among the districts to be

desegregated.* Within each community school district, the

31 Rough equality between districts was desirable to allow stu-

dents 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 eight com-

munity 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), 49% black an‘ other minority (B&OM).

The projected enrollments in the seven community distriets which

would be desegregated ranged in racial composition from 61% W

39% B&OM to 40% W—60% B&OM. The eighth district,

East Boston, was left predominantly white because of its isolated

geographic location.

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 al-

lowed to provide flexibility in planning. The desegregated

schools in Boston, therefore, range between 30-70 percent

white and 30-70 percent black and other minority under

the plan.” 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

aac racial composition, 80% W-20% B; schools to be

-39% B, 65-100% W); Yarborough v. Hulbert-West Mem-

ore 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% B), 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, Each

school is to limit its enrollment to fall within 5 percentage

points of the citywide racial composition.** The district

court found that a narrow range of enrollment ratios was

permissible for schools in the citywide district because the

practicalities to be accommodated, primarily geographic

elsewhere in the system, were significantly smaller in tho

citywide district schools.

There are, moreover, substantial positive reasons for

32 In district 4, with a projected racial composition of 61% W-

39% B&OM, the permitted variance of the composition of the

schools is 70% W —- 30% B&OM. Because the percentage of black

and other minority students cannot fall below 30% (39% — 25%

(39) = 30%), the percentage ot white students cannot rise above

70%. The same observation, in reverse, pertains to district 7,

which is 40% W—60% B&OM.

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.

enforcing a narrow range of permissible enrollments, The

magnet schools were designed io 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 dis-

proportionate numbers of one race transfer to the city-

wide school district, the racial composition of the com-

munity districts suffer. Fundamentally, the magnet schools,

in order to prove of value to the desegregation plan, had

to be carefully circumscribed 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.

True, these schools are treated differently from the other

magnet schools in that only the entering classes are dese-

gregated, rather than the entire student body. This is to

accommodate the cumulative nature of the instruction of-

fered at these schools. For the entering classes, however,

the district court’s order provides that the racial compo-

sition shall be simliar to that of the other magnet schools:

at least 41% black and other minority.™* It is, therefore,

34 The entering classes normally enroll 6-8% Asian-Americans.

When these numbers are added to the black and Hispanic students,

the percentage of the entering class which is characterized as black

40)

no more an impermissible racial quota than are the guide-

lines established for 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 specific 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 alternative plans for the desegregation of the

examination schools which would have imposed specific

admissions criteria.

We start with the proposition that it is not unconstitu-

tional per se for a city school system to operate an elite

school even though low income or minority children may be

under-represented in the student body, Berkelman v. 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 such, the examination schools must be part of

the remedial plan. See Part A 3, supra.®

Several other plans for desegregation of the examina-

tion schools were presented to the district court. All relied

on the Secondary School Admission Test (SSAT) to es-

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.

*6 This fact also disposes of the Association claim that imposing

a racial preference at 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 constitu-

tionality of racial preferences in the absence of past unlawful

discrimination, they are a basic tool in remedying constitutional

violations. See Castro v. Beecher, 459 F.2d 725, 737 (1st Cir. 1972).

_—_—-e

tablish admissions criteria.“ The district court found that

the SSAT, although apparently of some predictive ac-

curacy, had not been validated as a means of identifying

students who ean 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

dat» available, moreover, there was no assurance that any

of these plans would admit a significant number of minor-

ity students. Given these factors, we find that the court

acted within its discretion in rejecting the alternative

plans.

The appellants claim that the district court’s order will

destroy the examination schools as elite academic institu-

tions. If the order were inflexibly to require, for some

years to come, the admission of blacks and Hispanies

despite demonstrable underqualification by validated se-

lection processes, we would hesitate to affirm. But the

order is a temporary expedient, designed to ensure that

the examination schools 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 students into the examination

schools are being desegregated. Therefore, there is promise

36 The old method of selecting admittees to the schools was man-

dated by a consent decree between the School Committee and the

Massachusetts Commission Against Discrimination (MCAD). This

deeree introduced the SSAT and admission was based solely on

the scores of that test. As the plaintiffs were not parties to the

MCAD litigation, the district court was not bound by the consent

decree.

An alternative plan, proposed by the alumni associations of

the affected schools, would have had 65% of admission based on

the SSAT scores alone, the remaining 35% to be chosen in racial

proportions but setting a score in the 50th percentile of the SSAT

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.

that more minority students will become eligible for ad-

mission to the examination schools under any admissions

standard.” The parties have been specifically invited by

the court to develop admissions criteria which can be

shown to identify accurately students who can benefit

from the examination schools’ programs, 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 adjust its future orders to ensure the

continued vitality of these schools as elite institutions.

For the present, however, we affirm the court’s treatment

of the schools as within its discretion.

2. Challenges to Composition of Masters’ Panel Ex-

pert Dentler and to the Masters’ Compensation.

After the various desegregation plans had been sub-

mitted, the district court appointed two experts to assist

it in evaluating 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 compensation of $200 per diem plus

expenses. The School Committee objected to the appoint-

ment of three of the masters — Francis Keppel, Charles

Willie, and Edward McCormack — and of one of the

experts — Robert Dentler — on the grounds that their

associations with the plaintiffs rendered them unqualified

to serve.**® These objections were overruled, and _ the

37 Appellants claim that only 25% of admittees come from ad-

vanced work classes. While it is obvious that the examination

schools cannot be completely desegregated by the advanced work

classes, desegregation of the classes is a positive step.

38 The district court rested its decision on the qualifications of

Master McCormack and Expert Dentler on the alternative ground

that the School Committee’s objections were not timely filed. 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, but its objection was overruled. 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, pre-

liminarily, that the chance of error, if any, inflicting pre-

judice was remote. We have held that the masters’ and

district court’s rejection of the School Committee’s de-

segregation plan was constitutionally required. 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 Committee. Moreover,

the impartiality of the masters is suggested by their

criticism and rejection of the plaintiffs’ plan. Thus, any

error would seem to us to have been rendered harmless.

See Swann v. Charlotte-Mecklenburg Board of Education,

431 F.2d 138, 14° (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 dis-

qualifying any of the masters or experts.

The basis for the School] Committee’s objections to

Masters Keppel and Willie is that they have been associated

with the Harvard University Graduate School of Educa-

tion and thus are indirectly related to the Harvard Center

objection to the qualifications of these individuals took the form

of a motion to expunge filed on March 4, 1975, more than a week

after the masters’ hearings concluded and almost a month after

the February 6 deadline for filing objections. Since we hold that

the district court did not err in its ruling on the merits, we need

not reach this point.

39 We need not express an opinion on the timeliness of this

objection in the light of our holding on the merits.

for Law and Education, three of whose staff attorneys

have helped represent the plaintiffs in this case. The

ground for the objection to Master MeCormack and Expert

Dentler is that they have supported the NAACP which,

although not a party, supports the plaintiffs’ suit, has

advanced funds to cover disbursements, and has permitted

its General Counsel to serve as one of plaintiffs’ counsel.

The relationships of these individuals to the plaintiffs’

counsel are attenuated. Master Keppel was Dean of the

Graduate School of Education until 1962 and Master

Willie has been a member of the faculty there since 1974.

The Harvard Center for Law and Education, which was

founded in 1969, is completely independent of the Graduate

School of Education. Although it is housed in the Graduate

School, it is funded by the federal government and pays

the Graduate School for space an4 verviccs. We fail to

see how a relationship with the Graduate School could

give rise to a reasonable inference of possible bias in

favor of the plaintiffs with respect to the scope of the

desegregation remedy in this case. We reach a similar

conclusion with respect to the other master and expert.

Expert Dentler has been a member of the NAACP in

the past, but could not remember whether he paid his

dues for 1975. Master McCormack became a life member

in 1960, Although these relationships suggest general

agreement with the goals of the NAACP, they hardly

provide a reasonable basis for concludingythat those in-

dividuals would be biased in the plaintiffs’ favor with

respect to the breadth of the desegregation remedy. We

note, moreover, that several of these individuals have

*° On appeal, the School Committee suggests that it was improper

for the district court, in considering the School Committee’s objec-

tions, to rely upon interviews with Masters Keppel and Willie and

upon representations of plaintiffs’ counsel. It is clear from the

record, however, that the School Committee acquiesced in this

method of investigation.

relationships with the School Commiitee which might, to

an equal extent, suggest bias in the School Committee’s

favor.*

Since masters and experts are subject to the control

of the court and since there is a need to hire individuals

with expertise in particular subject matters, masters and

experts have not been held to the strict standards of im-

partiality that are applied to judges. See United States

v. Certain Parcels of Land, 384 F.2d 677, 681 (4th Cir.

1967); Scott v. Spangler Bros., Inc., 298 F.2d 928, 931

(2d Cir. 1962). Cf. 28 U.S.C. §§ 144, 455. Here, we doubt

that, even under the stgiet standards applied to judges,

the district court erred. Motions to disqualify judges have

frequently been denied even in cases far stronger than

this case. See, e.g., McNeil Bros. Co. v. Cohen, 264 F.2d

186, 188-89 (1st Cir. 1959); Fisler v. United States, 170

F.2d 273, 278 (D.C. Cir. 1948); Darlington v. Studebaker-

Packard Corp., 261 F.2d 903, 906 (7th Cir. 1959); Weiss

v. Hunna, 312 F.2d 711, 714 (2d Cir. 1963). We conclude

that these individuals were qualified under the more re-

laxed standards that are applied to masters and experts.

The School Committee’s challenge to the order that it

pay the masters’ compensation is also without merit. The

district court has broad discretion in fixing the amount of

such compensation and in determining which of the parties

to charge. F.R.Civ.P. 53(a). Here there is no basis for

concluding that the district court abused its discretion.

The grounds fer the School Committee’s objection is its

belief that the reference to the masters was unnecessary

and unwise and that the masters expended a great deal

41 The Harvard Graduate School of Education has, on several

oeceasions, been hired by the School Committee to conduct surveys.

Expert Dentler, in his capacity as Dean of Boston University’s

School of Education, has done work for the Committee. Thus,

three of the four individuals challenged have benefited financially

from their relationships with the School Committee.

of time and energy fruitlessly. Assuming arguendo that

these allegations would constitute grounds for setting

aside the district court’s order, we note that the district

court reasonably reached contrary conclusions regarding

the necessity and utility of the masters’ work. We hold

that there was no abuse of discretion.

3. Alleged Encroachment on School Committee Func-

tions.

To effectuate its plan in this case, the district court

adopted what it called a ‘‘multiplicity of measures’’ be-

yond the mechanical redistribution of students. The broad

purpose of these measures, as articulated in the opinion

below, was effective implementation of equal educational

opportunity through banning active discrimination, meet-

ing the persisting effects of past discrimination, and

alleviating the difficulties of transition to a desegregated

situation. The School Committee concedes these are proper

goals, but objects to some specific measures as encroach-

ments on its traditional powers and functions. Although

we discuss the challenged provisions individually below,

the greatest justification of each, in our view, is common

to all.

The overriding fact of the maiter is that the district

court in this case has had to deal with an intransigent and

obstructionist School Committee majority. These elected

officials engaged in a pattern of resistance, defiance and

delay. See generally Part IL of the opinion below; on

previous Committee resistance to state desegregative ef-

forts, see 379 IF’. Supp. at 418-21, 429-32, 438-41, 451-56,

and 477. The most visible recent example of such conduct

was their refusal to authorize submission to the court of

the desegregation plan drawn up by the Committee staff,

an action which provided the basis for subsequent con-

tempt convictions; upon the rather lenient purging of

those convictions, they then submitted a freedom of choice

plan which they knew was inadequate. And they did not

hesitate to manifest directly to the court their unwilling-

ness to cooperate with the effort to desegre ate the Boston

schools, The court addressed interrogatories to the Com-

mittee members late in December, 1974, relative to their

willingness to promote the peaceful implementation of the

Phase | interim plan in effect during 1974-75. The then

Chairman responded: ‘‘I will continue to obey lawful

orders of the Court, but I will take no initiative or affirma-

tive action to advocate or supplement this plan ... .’’

Similar responses were made with respect to the future

promulgation of a court-developed plan. In short, the

obstruction by the School Committee was substantial and

the district court had every reason to believe it would

continue. This crucial fact justifies, in our opinion, a

number of extraordinary measures which might otherwise

be open to question.

a. Specifying magnet programs.

The School Committee does not object to the concept of

magnet schools; indeed, Boston has had a number of such

schools for many years. The Committee’s plan retained

these, and proposed a total of about 50 magnet programs,

more than twice as many as the court’s plan provided

for.“ The narrow objection under this heading is to the

veloped at several of those schools.“

The magnet schools play a central part in the court’s

desegregation scheme. The citywide school district contains

42 The experts and masters felt this number would so saturate

the city as to deny the magnet schools a desegregative effect, their

raison d'etre. See note 10, supra,

court’s specification of the particular programs to be de-

43 The court’s plan left intact the programs of those citywide

schools which had established themselves over the years as magnets,

and it apparently adopted a number of the magnet programs as

proposed in the Committee plan. The Committee’s appeal is ad-

dressed only to five or six instances where it is felt that the court’s

plan is inconsistent with its own proposals.

an unusually high number of these facilities meant to

attract students from all over the city to specifie distinctive

programs that appeal to them. If successful, this desegre-

gative tool will stimulate substantial voluntary student

transportation, reducing forced busing; and 20 U.S.C.

§ 1713(f) required the court to look to magnet schools

before resorting to mandatory transportation beyond the

next nearest school. Implicit in the power to use magnet

schools, at least upon the default of the School Committee,

is the power to specify programs essential to make them

magnetic, In this case, that power was more crucial be-

cause of the importance of the magnet schools to the plan

being implemented.

We do not find in the record below any Schoo] Com-

mittee objection to the court’s power to order programs,

or to the specifie programs required. Nor do we see any

indication that the district court would be unreceptive to

any equally attractive programs which the School Com-

mittee might desire to substitute for those provided for

in the court’s plan. Good faith cooperation by the Com-

mittee would appear to be all that is required.

b. The contracts with colleges and universities.

As part of its effort to provide magnet programs that

would be distinctive and attractive enough to work, and

more generally to equalize educational opportunity, the

court enlisted the aid of a number of area colleges and

universities, each to participate in the development of

programs at specific schools. The court ordered the school

department to ‘‘use its best efforts to negotiate a contract

pertaining to each paired school acceptable to both the

Schoo! Committee, and the contracting institution of higher

learning.’’ 401 F. Supp. at 247. The court refrained from

specifying any of the op. at 84. The court refrained from

specifying any of the terms of these contracts, except to

note that the institutions should not ‘‘usurp or replace the

proper role of the School Department or any of its em-

ployees. . . .’? The state defendants, which have advanced

£900,000 and are likely to absorb much of the future cost

of his project, see Mass. G.L. ¢. 71, § 371; ¢. 15, § 11, and

401 F. Supp. at 246, and the Boston Teachers Union sup-

port this aspect of the court’s order; but the school Com-

mittee charges that it enters the area of quality of educa-

tion, and is thereby outside the court’s authority.

‘In default by the school authorities of their obligation

to proffer acceptable remedies, a district court has a broad

power to fashion a remedy that will assure a unitary school

system.’’ Swann, supra, 402 U.S. at 16. The magnet schools

were a central part of the court’s remedy, but to accomplish

their purpose they had to be both well conceived and im-

plemented in good faith. The School Committee takes out

of context remarks of the court that assistance of the

colleges would improve the quality of education in the

system and ‘‘wonders how the issue of quality of educa-

tion arose’. This argument —- that the court has no

legitimate function to improve quality — entirely miases

the point that if magnet schools are to act as lodestones,

drawing students voluntarily or their programs, quality

is a key to this aspect of a plan of desegregation. And

the court had been led in the clearest terms to understand

that the Committee would do only what it was ordered to

do, Reliance on the Committee to create imaginative pro-

grams of utility and attractiveness would not only have

been ill advised, but the supervision of compliance in this

area, as opposed to student assignment for example, would

have been extraordinarily complex and might well have

drawn the court into purely edue; ‘ional decisions. Para-

doxically, therefore, the resort to outside contracting may

have an effect precisely the opposite to that alleged by

the appellants. In ordering the contract talks, the court

removed itself from the content of educational decisions

as much as possible by mandating best efforts negotiation

rather than any specific provisions, In the context of this

case, that order amounted to the most reliable and least

intrusive method of ensuring that the School Committee

would act to implement the magnet school provisions,

which in turn were important to make the remedial plan

work.

This provision of the order, being innovative, it without

precise precedent in other cases. But in light of the back-

ground of the case and the particular objective being

served, we hold the best cfforts provisions to be within

the equitable discretion of the court.

ce. The citywide and commrnity councils.

The Citywide Coordinating Council and Community Dis-

trict Advisory Councils were established to monitor im-

plementation on behalf of the court. The CCC was also

charged with trying to identify and resolve problems, but

was explicitly not authorized to ‘‘co-manage or make

policies for the Boston schools.’’* Citizen participation

in the desegregation process was embodied in the Com-

munity District Advisory Councils, drawn largely from

the unobjecte4d-to-racial-ethnic parents’ and students’ coun-

cils established the previous year. Such groups have been

approved in many cases, e.g., Dowell v. Board of Educa-

tion, 465 F.2d 1012, 1015-16 (10th Cir. 1972); Singleton v.

Jackson Municipal Separate School District, 426 F.2d 1564,

1370 (Sth Cir. 1970).

The challenge to these provisions asserts that they in-

volve more than mere monitoring. The Committee objects

that the CCC’s duties of attempting to resolve problems

and of offering advice to the school department infringe

on the Committee’s power to have general charge of the

schools. As we view the mandate, however, no substantive

44 The city defendants, charged with paying the costs, have not

objected to these councils.

power was accorded to the CCC and CDACs, Apart from

the invaluable function of clustering groups of different

generations and races in an attempt to promote citizenship

understanding and support, the monitoring process is a

basic responsibility of the court. To the extent that the

myriad of minor problems which will arise can be re-

solved without the necessity of resorting to the district

judge, the process of implementation will be facilitated.

The Committee objects that the CCC was instructed ‘‘to

support efforts to improve the quality of education.’’

Attention to educational programs from the perspectives

of banning active discrimination, assuring equal educa-

tional opportunity, meeting the effects of past discrimina-

tion, and alleviating the transition to desegregation is

obviously a proper goal needing no justification. While

better quality education as a general goal is beyond the

proper concern of a desegregation court, we do not view

the court’s instructions to be divorced from its efforts to

devise an effective plan of desegregation.

d. Additional supervisory personnel.

Since the court’s plan established three more districts

than had previously existed, it required three more district

superintendents to be hired. This requirement is con-

tested, but not vigorously. The more major objection is to

the court’s order that each elementary school be headed

by an administrator of the rank of headmaster or prin-

cipal.

If these provisions were reasonable, both were within

the power of the district court. The equalization of edu-

cational opportunity through the implementation of the

desegregation remedy at the schools requires effective ad-

ministration. Similar orders have been upheld routinely.

See Davis v. School District of City of Pontiac, 487 F.2d

890 (6th Cir. 1973); Plaquemines Parish School Board v.

United States, 415 F.2d 817, 821 n. 2 (5th Cir. 1969). But

the Committee (joined in this point by the Mayor), argues

that the order as to elementary school administration was

arbitrary and unreasonable, and therefore an abuse of

discretion. The elementary schools previously were joined

in multi-school districts headed by district principals. With

the dissolution of these multi-school units, a number of

which the district court had found to be segregated within

themselves, 379 F. Supp. at 4387, over 100 elementary

schools exist under the court’s plan, including six with a

‘apacity between 100 and 180 students. The School Com-

mittee charges that the court’s order would require 80

new principals; the Mayor, perhaps partly because he con-

cedes the need for principals in each elementary school

housing more than 1,000 pupils, places the figure at 53.

This argument is not addressed to the proposition that

each school should be under the supervisory responsibility

of one person but to the implication of the court’s order,

which refers to ‘‘rank of principal or headmaster’’, that

the smallest of schools shall be headed by a person com-

manding the same grade level and pay as a person who

supervises the largest. Subsequent to the court’s order,

we are informed, the court stated that its intent was

simply that there be a ‘‘person in charge”’’ of each facility ;

the level of compensation was left to the School Depart-

ment and Committee. This scems to us the sensible ap-

proach. The district court having clarified the meaning

of its order, we see no reason at this juncture to set it

aside, but leave the matter to be worked out by the school

authorities to the satisfaction of the district court.

e. The power givento the experts.

The Committee objects to three orders of the court with

respect of its experts.

The May 10 order promulgating the court-developed de-

segregation plan provided that the assignment of students

be carried out ‘funder the supervision of representatives

- i leak Naa:

—- s.

of the court’’. The memorandum of decision on June 5

stated: ‘*The nature of instruction given in the schools

must alse receive the attention of the court and its repre-

sentatives. Instruction must be non-discriminatory and

avoid racial stereotyping.’’ 401 t°. Supp. at 234. We see

nothing unusual in these orders, KMxperts are commonly

used to assist the court in planning desegregation, see

generally Hart v. Community School Board of Brooklyn,

383 F. Supp. 699, 764-67 (.D. N.Y. 1974), aff’d, 512 F.2d

37 (2d Cir. 1975), and under the circumstances of this

case were justifiably used to assure implementation as

well. It is regrettable that there was a need to closely

monitor the assignment process, but it is the Committee’s

own doing. To have neglected it, or to have failed to

assure that instruction was non-discriminatory would have

been irresponsible of the court.

The June 20 order was a response to a delayed School

Committee proposal about certain of the guidelines which

needed to be settled before the student assignment process

could begin. The proposal conflicted substantively with the

court’s previous orders in several respects, and advanced

positions which (also contrary to court orders) had not

been discussed with the court’s experts. Operating under

serious time pressure to effectuate the desegregation plan

smoothly for the fall, the court ‘‘authorized the court-

appointed experts to resolve forthwith the remaninig issues

with respect to facilities utilization, program allocation

and enrollment units. The court will as soon as feasible ;

review with the court-appointed experts their determina-

tion of these remaining issues ....’’ While this order

perhaps gave the experts an unusual, if brief, amount of

power, it was justified by the School Committee’s actual

violations of the court’s substantive and procedural orders,

and its unwarranted delay in the face of the urgent neces-

sity of finalizing these decisions. The court specifically

found that absent this order ‘‘the student assignment

proccss would be stalled and the implementation of the

May 10 plan be jeopardized.’’ Along with the provisions

for immediate court review, this order was proper under

the circumstances.

Moreover, all of the duties specifically provided for in

these three orders having now been substantially per-

formed, the only active controversy remaining under this

heading probably is the continued existence of the experts

themselves. The Committee urges that their function is

completed, and that they ‘‘should now return to their

university.’ We agree that this will be appropriate once

a unitary school system has been established, and perhaps

even earlier in the court’s discretion. The speed with which

this goal is accomplished, however,-rests in large measure

in the hands of the Committee itself. We note that a new

Committee was elected in November; it is our hope that

the new majority will be more constructive than the old.

If so, the court measures discussed in this section, many

of them undoubtedly aggravating, may cease to be neces-

sary.

* * > «.

We therefore affirm the District Court’s plan and im-

plementation order for Phase II.

319)

APPENDIX B

UnitTep States Court or APPEALS

For THE First Circuit

No. 75-1184

TALLULAH MorcGan Er Au.,

Plaintiffs, Appellees,

Joun J. Kerrigan Er Au.,

Defendants, Appellees,

Boston HoME AND ScHOOL ASSOCIATION,

Defendant-Intervenor, Appellant.

TALLULAH Morecan Er Ax.,

Plaintiffs, Appellees,

Joun J. Kerrigan Er Au.,

Defendants, Appellants.

No. 75-1197

TALLULAH Moroan Er AL,

Plaintiffs, Appellees,

Joun J. Kerrican Er Aux.,

Defendants, Appellants.

TALLULAH MorcGan Et AL.,

Plaintiffs, Appellees,

JOHN J. Kerrigan Er Aut.,

Defendants, Appellees,

Kevin H. Waite Erc., Er Au.,

Defendants, Appellants.

JUDGMENT

Entered January 14, 1976

This cause came on to be heard on appeals from the

United States District Court for the District of Massa-

chusetts, and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The orders of the Dis-

trict Court entered May 2, May 10, and June 5, 1975,

are affirmed.

The plaintiffs and the Massachusetts Board of Edu-

eation are to submit statements of costs for reproducing

their respective briefs, and all parties are to submit state-

ments for their respective costs, if any, for reproducing

the appendix.

By the Court:

(s) Dana H. Gatiup

Clerk

(ec: Messrs. Moloney, Fremont-Smith, Wise, Connolly,

Leubsdorf, Hiller]

APPENDIX C

Unitep States District Court

District oF MASSACHUSETTS

Civil Action No. 72-911-G

TaALLULAH Morcan Er ALu.,

Plaintiffs,

Joun J. Kerrigan Er Au.,

Defendants.

MEMORANDUM OF DECISION

AND

REMEDIAL ORDERS

GARRITY, J.

June 5,

1975

MEMORANDUM OF DECISION

AND

REMEDIAL ORDERS

TABLE OF CONTENTS

[I Introduction

II Prior Proceedings

Ill Findings and Conclusions

Plans submitted by the Parties

teneral Principles Governing Remedy

School Districts

Guidelines for Assigning Students

Examination Schools

School Closing and Capacities

Magnet Schools and Programs

Page

104

106

Citizen Participation, Monitoring, Re-

porting

IV Conclusion

V *Student Desegregation Plan

VI Appendices

110

113

116

200

* Part V was filed separately on May 10, 1975; it has its own table

of contents and pagination.

cette. 5 mn

INTRODUCTION?

Boston has been a magnet for people searching for

access to the larger American society ever since the

founding of the nation. Boston’s magnetism has, in recent

decades, attracted thousands of black Americans, Hispanic

Americans, and Oriental Americans into its midst. Like

those who preceded them from Europe, these Americans are

being pushed by the hardships of their present life and

pulled by the promise of opportunities that Boston has

always represented.

Many Bostonians today face a different situation from

the one faced by settlers in earlier generations, however.

Many of today’s Bostonians, white, black, and other minori-

ties, must bridge a cultural gap far wider than the one

bridged by their predecessors.

Hard as the bridge to opportunity was to travel for

most Bostonians from 1800 to 1946 the bridge did exist.

Growing industries were in search of workers. The physi-

cal structure of Boston permitted the incoming ethnic

groups, albeit after much struggle, to settle in enclaves

within a city that was not ye! over-built. Of equal im-

portance, free public schools served as an open road across

the gulf between the old cultures and the new. Public

schools also provided, through their instruction, access

to semi-skilled and skilled occupations.

Building upon a foundation laid in the colonial era,

Boston became the bridge not only to liberty but to the

ideal of the free, universal, and inclusive public school.

Horace Mann established in 1837 the nation’s first state-

wide education commission. In that decade, he achieved

world wide renown as the Father cof the Common School.

Under his stimulus, Boston erected the Quincey School, still

1This introduction has been taken almost verbatim from the

report of the masters filed March 31, 1975.

in use today in Boston, as the nation’s first multi-classroom

public elementary school. Built in 1847, the Quincy School

expressed in brick and mortar as well as program all that

was ideal, urban, and progressive in the nineteenth century

vision of the Common School.

Horace Mann’s vision served the children and youth of

Boston for more thar a century. But, as the deterioration

and segregation of the Quincy School make plain to the

eye of any visitor, that vision began to dim after World

War II. Publie schools and school services became in-

creasingly unequal in quality. Some became exclusive

rather than inclusive of all groups.

Ethnie segregation, cultural isolation, overcrowding

some schools and extreme underutilization in others, in-

coherent grade structures, discriminatory assignments

and schovl admissions procedures, all combined to guar-

antee unequal and inferior educational opportunities for

the children of Boston. By the late 1960’s conditions had

become so deplorable that one responsible investigator

reported,

Of any generation of seventh graders, 85 percent

do not complete four years of college; 75 percent do

not even begin college. In any ghetto area, more than

half never finish high school.?

As the public schools of Boston declined, they also

became outmoded. Speaking of them, the Harrington Re-

port concluded, ‘‘Course offerings available to most public

school students today are similar to those in the schools

of their parents and grandparents.’’? In the last few

years, the Boston School Department has worked to in-

troduce some innovations and improvements, but these

have been handicapped by maneuvers to maintain segre-

gation.

? Peter Schrag, Village School Downtown, (1967).

3 Willis-Harrington Commission.

This demise over a period of three decades took place

alongside the rising hunger of Bostonians for schools

that could help them bridge the gap between ethnic isola-

tion and access to the larger and ever more complex

urban society. The children of second and third generation

white ethnic families suffered as the schools located within

their residential enclaves came to reinforce rather than

reduce the educational distance between their neighbor-

hood and access to the larger society. Black and other

minority children, meanwhile, suffered even greater edu-

cational deprivations as the schools they attended were the

most crowded, the oldest, the least well maintained, and

the most poorly staffed that the school committee could

offer.

In the court’s quest for a remedy adequate to reviving

the vision of an equitable and effective public school sys-

tem, it has planned for schools that will be free, universal,

inclusive, and sound in ways that meet the educational

needs and aspirations of all of Boston’s citizens. It be-

lieves that the reconstruction of the ideal of the Common

School requires a common concern with equality and ex-

cellence throughout all institutions and groups in the

entire Greater Boston area.

While it has obligated the Boston School Committee

and its Department to eliminate segregation and the effects

of discrimination in the public schools, it has also solicited

the talent, support, and assistance of colleges, universities,

and business and ther organizations in developing learning

opportunities that will remedy the losses students have

already suffered and that will lay a basis for improving

the quality of education for the total City.

PRIoR PROCEEDINGS

On June 21, 1974 the court issued an opinion holding

that Boston’s public schools had been unconstitutionally

segregated by the purposeful actions of the school com-

mittee and superintendent. J/organ v. Hennigan, D. Mass.

1974, 379 F. Supp. 410. This finding was affirmed by the

Court of Appeals in December of 1974. Morgan v. Ker-

rigan, 1 Cir. 1974, 509 F.2d 580. The finding was based

on a history of school committee actions and inactions

spanning a decade, involving overcrowding and under-

utilization of facilities, placement of portable classrooms,

use of new facilities, districting, feeder patterns, open en-

rollment policies, and hiring and assignment of faculty

and staff, which intentionally brought about and main-

tained a dual schoo] system in Boston. In 1971-72 the

system contained 59,300 whites (61%) and 30,600 blacks

(32%), yet only five of 140 elementary schools had a

racial composition that came within 10% of the citywide

ratio. Eighty-four percent of white students in Boston at-

tended schools more than 80% white; 62% of black stu-

dents attended schools more than 70% black. 379 F. Supp.

at 424. Added to the background of this case were efforts

by the school committee beginning in 1965 to evade the

effects of the Racial Imbalance Act passed by the Massa-

chusetts legislature. Mass. G.L. ¢. 71, $4 37C and 37D, and

e. 15, §§ 11, 1J and 1K. Following an unsuccessful attack

by the Boston School Committee on the constitutionality

of the statute, a series of orders of the State Board of

Education and judicial proceedings in state courts cul-

minated in orders from the Supreme Judiciai Court that

the school committee implement in the 1974-75 school year

a plan formulated by the State Board of Education (the

‘*state plan’’).

In the court’s opinion of June 21, 1974 the defendants

Boston School Committee and Superintendent (the ‘‘city

defendants’’) were found to have ‘‘knowingly carried out

a systematic program of segregation affecting all of the

city’s students, teachers and school facilities and to have

intentionally brought about and maintained a dual school

system.’’ 379 F. Supp. 410, 482. The court ordered these

defendants to ‘‘begin forthwith the formulation of plans

which shall eliminate every form of racial segregation in

the public schools of Boston, including all consequences

aud vestiges of segregation previously practiced by the

defendants.’’ 379 F. Supp. at 484. As an interlocutory

order, the court enjoined the defendant school committee

and superintendent from failing to comply with the state

plan.

In July 1974 the school committee and superintendent,

dissatisfied with the state plan, requested time in which

to prepare a substantive plan which would accomplish

desegregation in two stages, secondary schools in Sep-

tember 1974 and elementary schools in September 1975.

The court granted time until July 29. At the end of this

period, the defendants reported that they had been unable

to develop a satisfactory substitute for the state plan,

and the efforts of the court and parties turned to the

implementation of the state plan. The state plan is only

a partial plan in terms of the constitutional requirements

of this case. Drawn under constraints of state law regard-

ing assignments, it sought to decrease the number of

racially imbalanced schools, i.e., having a majority of

non-white students, from 68 to 44. It left large areas of

the city such as Charlestown and East Boston unaffected

and permitted the continuation of a number of virtually

all black middle and elementary schools.

The opening of school under the state plan in Sep-

tember of 1974 was accompanied by some violence and

much fear. School buses were stoned, their windows broken

and some children cut by shattered glass. Angry crowds

of white parents and students gathered in front of schools

to protest the entry of black students assigned there. Stu-

dent boycotts of varying effectiveness were organized.

“Many students stayed home or were kept home by their

parents out of fear for their personal safety. Several

city high schools were the scenes of racially-connected

fights and incidents. As the school year continued, violence

subsided, then recurred. The court and the parties took

several steps in an effort to provide security and reduce

racial tensions. Racial-ethnice councils of parents and stu-

dents were established. In October federal marshals were

requested by the Mayor, but it developed that such as-

sistance was available at the federal level only after city

and state resources were exhausted. State troopers joined

city police in large numbers in troubled areas, such as

predominantly white South Boston and Hyde Park. Even

today 166 state and local police officers are stationed in

the halls of South Boston High School and another 134

are stationed in the vicinity during school hours. In De-

cember a white student was stabbed inside South Boston

High School by a black student. Community residents

gathered and surrounded the high school building, trap-

ping black students inside until a decoy operation by

police permitted the departure of the black students. In

the aftermath of this incident, all schools in the South

Boston-Roxbury district were closed early for the. Christ-

mas vacation and reopened late, and then only against

advice of city and state police officials who urged the

permanent closing of South Boston High. The court issued

orders designed to keep crowds from gathering along bus

routes and around school buildings, and to keep non-

students out of school buildings during class hours, The

student code of discipline was amended to prohibit the

use of racial epithets to antagonize others. The parties

developed alternative plans for students at South Boston

High should its permanent closing have become neces-

sary. A monitoring program was developed by the Com-

munity Relations Service of the United States Department

of Justice, under which volunteers have been static aed in

troubled schools to watch for signs of increasing tension.

In many schools this year the atmosphere has been

one of felt tension, where the educational process has

suffered. In others, notably at the middle and elementary

s“hool levels, but also at some high schools, students and

teaci.ers have gone about the business of learning and

have developed integrated learning programs of which

they are proud.

As these events were occurring, planning was renewed

for the development of a citywide desegregation plan to

be implemented in September 1975. After several hearings

on proposals-of the parties as to its terms, the court en-

tered an order ou October 31, 1974 establishing the filing

date and generai contents of a student desegregation plan

to be filed by the defendants. This order required the

filing of progress reports on the development of the plan

and filing of the plan itself by December 16, 1974. It also

stated that ‘‘the plan shall be approved by vote of the

defendant school committee before submission to the

court.’’ In setting standards for the plan, the court said:

Taking into account the safety of students and the

practicalities of the situation, the student desegrega-

tion plan shall provide for the greatest possible degree

of actual desegregation of all grades in all schools

in all parts of the city. In drafting the plan, the de-

fendants shall utilize as a starting point and keep in

mind the goal that the racial composition of the stu-

dent 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.

The order provided that parties and other interested com-

munity groups would have until January 20, 1975 to file

criticisms of the school committee plan or to file alter-

native plans.

Progress reports were duly filed by the defendants, but

on the deadline for filing its plan, December 16, the

school committee by a three to two vote refused to approve

for filing with the court the plan developed by the school

department at the school cominittee’s direction and about

which the progress reports had been made. Counsel for

the defendants filed the plan (known as ‘‘the December

16 plan’’) despite the school committee vote, then asked

the court’s permission, granted when new counsel was

later obtained, to withdraw from the case.

Plaintiffs filed motions that the three members of the

school committee voting against submission of the Decem-

ber 16 plan be held in criminal and civil contempt. In

preparation for the hearing on these motions, the court

required written answers from these three school com-

mittee members to questions about their willingness to

obey future orders of the court and their willingness to

take affirmative steps to decrease racial tensions and

peacefully implement the state plan. In every case the

members stated that they would obey orders by the court

but would take on other steps except where they deemed

actions would reduce racial antagonism and provide ade-

quate safety for the schoo] children, The questions and

the then chairman Kerrigan’s answers, which were typical,

appear as Appendix A. At hearing on the contempt mo-

tions the members testified that their votes had been based

on conscientious opposition to any form of ‘‘foreed bus-

ing,’’ i.c., assignments to schools beyond walking distance,

which made them unable to endorse any desegregation

plan containing forced busing. This view was adhered to

even though there might be no desegregation without man-

datory busing. The then chairman Kerrigan testified as

follows:

I certainly am against the forced busing of school

children. I have always been against the forced busing

of school children. I ran for office stating that I would

never vote for a plan that involved the busing of school

children. It is unfortunate that is the way our society

exists, the way the hpusing patterns are laid out, but

the only way you are going to desegregate city schools

is through forced busing.

I certainly could go for magnet schools. I certainly

could go for an increase in the METCO program.

| could go for any plan that would give the parents

whom I represent a choice of the school. I can’t vote

for a plan that includes the forced busing of school

children. ‘The hypocrisy in that statement is there is

no way that it can be done without the forced busing

of children.

The court denied the motions for criminal contempt but

held the three committeemen in civil contempt of the

October 31 order. In order to continue the planning pro-

cess, however, the court directed the parties to file critiques

and alternatives to the December 16 plan, unsponsored

though it was. On December 30 the court outlined sane-

tions to begin January 9, 1975 which could be avoided or

purged by a vote to authorize the submission of a student

desegregation plan. On January 7, after applications for

a stay of sanctions were denied by this court and by the

Court of Appeals, the school committee voted to direct the

school department to draw up a desegregation plan with-

out forced busing and to authorize the submission to the

court of that plan. The court found that the three com-

mitteemen had thereby purged themselves of civil con-

tempt provided the plan was authorized and filed by

January 20, later extended to January 27. The school

committee did authorize and file a plan on January 27.

An alternative plan was filed on January 20 by the

plaintiffs, along with criticisms of the December 16 plan

by parties including the state defendants, the Mayor and

Public Facilities Department, the Boston Teachers Union,

as well as numerous community groups and individuals,

El Comite de Padres Pro Defensa de la Educacion Bilingue

(hereinafter referred to as ‘‘E] Comite’’) was permitted

to intervene on behalf of the Hispanic children and parents

and also filed comments on the various submissions. The

parties then filed comments on each other’s submissions

to clarify points of disagreement.

The Home and Social Association, comprising chapters

of parents, was permitted to interevene on the question

of the student desegregation remedy and filed a plan and

supporting memoranda which the court treated as a mo-

tion to modify its October 31 order. The association at-

tempted to show that certain segregated schools had not

been affected by defendants’ actions and therefore were

not required to be desegregated in formulating a remedy.

The association argued that even within an admittedly

dual school system, the remedy should reach only those

schools in the system as to which specifie findings as to

the effect of segregative actions had been made. The court

held a separate hearing on February 5, rejected the

associaticn’s motion and refused to allow further consi-

deration of its plan.

The court determined that because of the complexity

and multiplicity of the school desegregation plans and

proposals filed, the use of a panel of masters to hold evi-

dentiary hearings and make recommendations on a dese-

gregation plan to the court was advisable. On January 31,

the court appointed two experts, Dr. Robert A, Dentler,

Dean of the Boston University School of Education, and.

Dr. Marvin B. Scott, Associate Dean of the same school,

to assist the masters and the court in the task of adopting

a student desegregation plan for September 1975,

In an order on February 7, the court formally appointed

a panel of four masters (they had been designated on

February 5 to allow parties to object to their identity and

to terms of the proposed order of reference): retired

Supreme Judicial Court Justice Jacob J. Spiegel, who

presided at the hearings; former United States Commis-

sioner of Education Francis Keppel; former state At-

torney General Edward J. MeCormack, Jr.; and Professor

of Education at Harvard University Dr. Charles V. Willie.

The masters held two weeks of evidentiary hearings,

beginning February 10. On March 31, after having heard

the parties’ comments on their draft report, the masters

filed their final report with the court which recommended

a plan prepared by them incorporating elements of the

plans submitted by the parties and proposals of their own.

The parties then filed objections to the masters’ report.

After hearings on these objections, and on objections to

modifications proposed by the court after examination by

its experts of updated data furnished on April 10 by the

school department, the court decided upon the modified

version of the plan recommended by the masters which

is established by the remedial orders herein promulgated.

Ill

FINDINGS AND CoNCLUSIONS

The findings of fact and conclusions of law that follow

constitute many but by no means all of the factual and

legal underpinnings of the court’s student desegregation

plan and related remediai orders, Numerous findings

descriptive of the Boston public school system, its facil-

ities, student body, curriculum, administration and the

like, appear in the plan itself. Also, the transcripts of

several hearings in open court on the remedial aspects of

the case contain many oral findings and rulings by the

court which are pertinent. This memorandum of decision

deals mainly with the reasons for particular features of

the desegregation plan that have been of major concern

to the parties.

Plans Submitted by Parties

The plan submitted by the school committee on January

27, 1975 was constitutionally inadequate because it did

not promise realistically to desegregate the public schools.

It proposed a phased assignment process based on choices

by parents and students among a series of options. The

assignment process would require a period of up to seven

weeks and up to five communications between the school

department and the individual parent or student who would

be allowed but one week in which to respond to each

communication. Magnet programs in citywide and zonal

schools would be open on a desegregated basis only, but

the ultimate composition of the majority of schools in a

zone would be determined by parental choice, For schools

which remained ‘‘racially isolated’’, defined by the school

department as more than 15% beyond the racial ratio of

the zone at that level, as a result of parent and student

choices, the plan provided for mandatory participation

of students at those schools at desegregated ‘‘third-site

Resource Centers’? one day a week for elementary schools

and one day every two weeks for middle schools.

As pointed out by the masters, any plan that places

complete reliance on parental choice to desegregate Bos-

ton’s schools cannot be constitutionally adopted. Such plans

must be rejected where, as here, there are more effective

methods of desegregation reasonably available. Geen v.

School Board of New Kent County, 1968, 391 U.S. 430.

Complete freedom-of-choice plans have a long history of

failing in many cases when adopted to result in desegre-

gation. E.g., Green v, School Board of New Kent County,

supra; Monroe vy. Board of Commissioners, 1968, 391 U.S.

450; Hall vy. St. Helena Parish School Bd., 5 Cir. 1969,

417 F.2d 801; United States v. Jefferson County Board of

Education, 5 Cir. 1969, 417 F.2d 834

We need not rely on experience elsewhere, however,

to predict the ineffectiveness of such a plan in Boston.

Boston’s own experience with open enrollments, feeder

patterns and options, and the opening of the Hennigan

and Lee schools, set out in detail in the court’s June 21

opinion, Morgan vy. Hennigan, supra, at 430-441-56, shows

the segregative effects that have occurred under such op-

tions in Boston and which in all likelihood would occur

again if the schoo] committee plan were to be adopted.

Certainly there have been some magnet programs in

Boston, such as the model demonstration subsystem ele-

mentary program at the Trotter School, that have achieved

integrated enrollments through volunteer applications.

To the extent that desegregation in Boston can be achieved

on a voluntary basis, the court endorses the concept and

incorporates it into the plan adopted. But to disregard

the history of desegregation efforts throughout the country

and in Boston as the school committee urges we do by

adopting its proposal on a trial basis would be to place

the realization of the rights of Boston’s black students

in a vessel] that would begin its voyage rudderless against

the wind. ;

The addition of ‘‘third-site resource center’’ experiences

does not save the school committee plan from its otherwise

total and therefore unacceptable reliance on voluntary

choices to produce desegregation. An integrated experience

is no substitute for a desegregated education. The court

agrees with Judge Doyle in Denver, who stated, when

faced with a similar proposal,

The special education programs which are suggested

involving the enrichment offerings together with the

open school concept and the special programs designed

for use in segregated schools are desirable, but the

emphasis is on enriched education and can scarcely

be considered a plan for desegregation. Thus, the

transporting of students from concentrated schools to

enrichment centers for three weeks on a half day

basis to intermingle with other ethnie groups while

engaging in special proerams does not pretend to be

a desegregation plan. It impresses us, on the contrary,

as a plan which is more designed to avoid adoption

of a desegregation plan.

Keyes vy. School District No, 1, Denver, D, Colo, 1974, 380

F’. Supp. 673, 682. See also, United States v. Texas Educ.

Agency, 5 Cir, 1972, 467 F.2d 848; United States v. Board

of Educ. of Webster County, 5 Cir. 1970, 481 F.2d 59;

Dowell vy. Board of Educ. of Oklahoma City, W.D. Okla.

1972, 338 F. Supp. 1256, aff'd, 10 Cir. 1972, 465 F.2d 1012,

cert. denied, 409 U.S. 1041; Spangler v. Pasadena City

Board of Educ., C.D. Cal. 1974, 375 F. Supp. 1304.

The school committee plan presented no more than a

hope for desegregation in Boston. The proposed assign-

ment process promised an administrative nightmare, con-

templating a seven-week-long individualized assignment

process for over 80,000 children. Ultimately it failed to

do what the schoo] committee hoped it would, viz., avoid

‘*foreed busing’’, since it required mandatory transporta-

tion of students to resource centers for desegregation pur-

poses, For these reasons and those set out in the Masters’

Report in Part I, pp. 9-16, the court adopts their recom-

mendation and holds thc school committee plan to be con-

stitutionally inadequate.

Added to the inadequacy of the school committee plan

is a history of the committee’s failing, when granted time

by the court, to file promised plans. The promised Option

A alternatives to the state court plan last July were filed

but not approved by the Boston School Committee. The

time granted from September, when a filing date was

established, to December 16, resulted in the committee’s

repudiation of the plan developed by its school depart-

ment staff. The month of January was granted for formula-

tion of a plan that failed to promise substantial desegrega-

tion. Now, approximately three months before school is

due to open in September, time does not permit another

court request to the school committee te produce yet an-

other desegregation plan. Under the circumstances the

court has no alternative but to take the initiative in

devising a desegregation plan. ‘‘In default by the school

authorities of their obligation to proffer acceptable rem-

edies, a district court has broad power to fashion a

remedy that will assure a unitary school system.’’ Swann,

supra, 402 U.S, at 16.

The masters have, in accordance with the court’s order

of reference, analyzed and considered the plan filed by

the plaintiffs and the plan, repudiated by the school com-

mittee, which was filed on December 16 with the court.

For the reasons stated by the masters in Part I, pp. 17-28

of their report filed March 31, 1975, and because the court

finds the plan proposed by the masters with revisions

ordered by the court to be preferable for reasons of

feasibility, the court declines to adopt either the plain-

tiffs’ proposed plan or the December 16 proposed plan.

General Principles Governing Remedy

In making its findings as to plans submitted by the

parties and in deciding upon the remedial orders herein

promulgated the court has observed and relied upon the

legal principles which are set forth under the subheadings

which follow.

Basis of Court’s Power and Duty

The power of the court to order desegregation arises

out of the court’s finding in June 1974 that the plaintiffs

have been discriminated against because of their race and

denial equal educational opportunity through intentional

segregation. The court is obliged, as it is empowered, to

remedy this wrong. An abiding concern must be to assure

that minority students are afforded equal educational op-

portunity. The plan which the court adopts as a remedy

in this case does not rest on any supposed constitutional

right of a student to attend a school that has a particular

etlmie composition, or whose ethnic composition matches

that of the schoo] system as a whole. Swann v. Charlotte-

Mecklenburg Board of Education, 1971, 402 U.S. 1, 16, 24;

Milliken v. Bradley, 1974, 418 U.S. 717, 741 n. 19. Nor

does the plan reflect any imagined independent constitu-

tional power of the court to decide what educational policies

are desirable for the public school system of the City of

Boston, Education is a matter entrusted initially to elected

local authorities and appointed state authorities. Even

after unlawful segregation has been found, responsibility

falls initially upon the loca! school authorities to remedy

the effects of this segregation. Brown v. Board of Educa-

tion, 1955, 349 U.S. 294, 299 (**Brown II’’); Swann,

supra, 402 U.S. at 16. Only the default of the school com-

mittee in this case has obliged the court to employ the

help of the appointed experts and masters and to draw

an adequate plan.

The goal of the court in formulating a remedy for

intentional segregation of the schools is to eliminate

government-imposed isolation of blacks within the school

system. Largely as a result of school committee actions,

most students in Boston attend school that are either

‘‘hlack’’ or ‘‘white’’.* The remedy in this case must

convert this ‘‘dual’’? system to one ‘‘without a ‘white’

*See Morgan, supra, 379 F.Supp. at 424-25, setting out enroll-

ment statistics for 1971-72. Even after implementation of a partial

desegregation plan in September 1974, continuing segregation is

pronounced at the lower grade levels. See attendance statistics

eited by the court at the hearing on April 18, 1975, Tr. 45-49.

school and a ‘Negro’ school, but just schools.’’ Green v.

County School Board, 1968, 391 U.S. 430, 442. This does

not mean that all schools in the system must show the

same or nearly the same ethnic compositions, but rather

that the remedy should eliminate assignment patterns that

leave some schools so disproportionate in their ethnic

makeup that they are in effect ‘‘Negro’’ or ‘‘white’’

schools — to use the language of Green. The remedy also

should eliminate conditions likely to produce such school

compositions in the future. Exceptional circumstances oc-

casionally can justify exceptions to pursuit of this goal,

but the goal remains.

Barring Affirmative Discrimination

The defendant school committee must be forbidden to

take any further actions affirmatively discriminating

against minority students on the basis of race. An order

to this effect appeared in the court’s opinion and order

entered June 21, 1974. Appendix B. It is upon this central

concept that the entire desegregation plan rests: that

minority students may not be excluded from public school

programs or activities on the basis of race, either directly,

as happened more than a century ago, cf. Roberts v. City

of Boston, 1849, 5 Cush. 198, or indirectly, as has oceurred

more recently, See Swann, supra, 402 U.S. at 23. The

simplicity of the requirement that affirmative acts of dis-

crimination must end does not, however, imply simplicity

of enforcement. The consequences of years of segregative

practices will be eradicated only with great effort and

understanding. During desegregation, inefficiencies and

failures of responsiveness that formerly were only trouble-

some can become intolerable. Therefore, the plan in this

ease includes means to assure effective administration,

e.g., elementary schools must have principals. Cf. Plaque-

mines Parish School Board vy. United States, 5 Cir. 1969,

415 F.2d 817, 821 n. 2. The plan calls on community dis-

tricts to develop educational programs suited to the

varying needs of students in particular districts. See, e.g.,

United States v. Texas, E.D. Tex. 1971, 342 F. Supp. 24,

30-34, aff’d, 5 Cir. 1972, 466 F.2d 518. And help that in

other circumstances would be only desirable — the aid, for

example, to be provided in this case by the universities

and colleges, and by the several citizens’ groups — be-

comes essential. Cf. United States v. Texas, supra; and

see generally, Hart v. Community School Board of Brook-

lyn, E.D, N.Y. 1974, 383 F. Supp. 699, appeal dismissed,

2 Cir. 1974, 497 F.2d 1027. These points are expanded

under the subheading, infra, entitled ‘Multiplicity of

Measures.”’

Preventing Continuing Injury

The plaintiffs in this case do not seek a remedy that

would compensate them, as a class, for the injury already

wrought by the defendants’ long-practiced racial dis-

crimination. That injury, of course, is immense® See

Milliken, supra (White, J., dissenting), 418 U.S. at 779-

780. The desegregation plan that the court orders cannot

make the plaintiffs whole nor, for that matter, anyone

who has been affected by the racial divisions in this city,

which are in part traceable to the defendants’ segregative

practices. Rather, the remedy must go beyond an order

that forbids further acts of affirmative discrimination in

order to assure that past discriminatory practices will

work no further harm.

Years of segregative manipulation of student assign-

ment, schoo] placement and expansion, and like practices

5 It has been suggested that a person denied equal educational

opportunity might have a valid claim for money damages against

those who denied him this fundamental right. Sugarman, Account-

ability Through the Courts ..., 82 U. Chi. Schl. Rev. 233 (1974);

ef. Wood vy. Strickland, __ U.S. __, February 25, 1975, 43 U.S.

L.W. 4293; Tillman v. Wheaton-Haven Recreation Ass’n, Inc.,

4 Cir., April 15, 1975, 43 U.S.L.W. 2433.

found by the court in this case, present what the Supreme

Court has deseribed as ‘‘a loaded game board’’; applied

to such a school system, student assignment policies that

ignore race would perpetuate the effects of the past segre-

gative practices. Swann, supra, 402 U.S. at 28. The dese-

gregation remedy in this case therefore must offer more

than superficial neutrality. It must meet and neutralize

the effects of past discrimination. The Supreme Court

repeatedly has stressed this necessity, in requiring that a

desegregation remedy do more than give effect to the

‘*free’’ choices of students and parents, when the effect

of these choices is simply to maintain the segregation

of schools. See Green, supra; Monroe v. Board of Com-

missioners of the City of Jackson, 1968, 391 U.S. 450.

The day is past when desegregation is to be achieved

through the struggle of a handful of pioneering black

students willing to attend a school that is identifiably

white. Nor is a simple rule of attendance at the nearest

school adequate, when that rule is imposed on a pattern

of segregated housing attributable in part to the segre-

gative practices of school authorities. Such a ‘‘neutral’’

geographic attendance arrangement in Boston weuld sanc-

tion a freezing-in of the effects of past discrimination.

Long-continued efforis by the school authorities to keep

the races apart inevitably are reflected in both residential

patterns and school locations and capacities. See Morgan,

supra, 379 F. Supp. at 470; Swann, supra, 402 U.S. at

20-21; Keyes v. School District No. 1, Denver, Colo., 1973,

413 U.S. 189, 202-03. This is not to say that ethnic and

racial housing patterns result entirely from school segre-

gation, but that past school policies would render dis-

criminatory any simple nearest-school policy.®

6 At ivast during the period covered by the trial testimony,

Boston never had a true neighborhood school policy. See in

Morgan, supra, 379 F.Supp. at 473-474, the summary of school

committee practices found to be ‘‘antithetical to a neighborhood

school system.’’

A desegregation plan is to be judged by its effectiveness ;

see Swann, supra, 402 U.S. at 25; Green, supra, 391 U.S.

at 439; Morgan, supra, 379 F. Supp. at 482.

Eliminating Racially Identifiable Schools

Fundamentally a desegregation plan must eliminate

racial identifiability of schools. Once faculty desegregation

and facility equalization are under way, and other marks

of a school’s racial identification have been removed, the

critical identifying quality of the school becomes, of course,

the ethnic composition of the student body. When a history

of segregation, followed by default of local school au-

thorities in planning desegregation, forces the court to

fashion a remedy, it is within the equitable authority of

the court to use racial ratios as a starting point in formu-

lating a remedy. Swann, supra, 402 U.S. at 25. Boston’s

school population of nearly 85,000 students is approxi-

mately 52% white, 36% black, and 12% other minority.

Of course, no uniform degree of racial mixing of students

is or could be required in order to end segregated schools

and counter the pervasive «ffects of years of segregatory

practices. See Swann, supra, 402 U.S. at 24; Mulliken,

supra, 418 U.S. at 740-41. But awareness of the racial

composition of the system as a whole provides a reference

for determining what are racially identifiable schools

within that system. The test of identifiability then becomes

substantial disproportion in composition compared to the

racial composition of the school system. Cf. Swann, supra,

402 U.S. at 26.

A desegregation plan properly may leave some schools

all or predominantly of one race where this composition

can be shown to result from non-diseriminatory considera-

tions. Swann, supra, 402 U.S. at 26. The court’s plan in

this case leaves some identifiably white schools at the

lower grade levels in East Boston. The considerations

that support such treatment of these schools are set out

infra at pp. 52-55.

Identifiably one-race schools in a schoo] system are to

be eliminated because of two sorts of injury that may be

inflicted on the minority students in such a school system.

First, racial or ethnic isolation is likely to be felt as an

affront. The one-race identification of the school is a con-

tinual reminder of the past exclusionary practices of the

school system; practices that, the Supreme Court observed

in Brown, generate ‘‘a feeling of inferiority as te the

{children’s] status in the community that may affect their

hearts and minds in a way unlikely ever to be undone.”’

Brown, supra, 347 U.S. at 494. Second, minority students

assigned to identifiably minority schools are eut off from

the majority culture which is widely reflected in the stan-

dards, explicit and implicit, that determine success in our

society. See Brown, supra, 347 U.S. at 493-94. An indi-

vidual may decide, of course, that he prefers to avoid

the majority culture; but the public school system may

not impose that isolation.

This concern is expressed most clearly in the decisions

that form the legal foundation on which Brown rests:

Sweatt v, Painter, 1950, 339 U.S. 629, holding that a black

law student must be admitted to the University of Texas

law school, and not restricted to a newly4ounded law school

for blacks, in part because of the value to a futare lawyer

of contact with the people he later would work with —

the predominantly white Texas bar of 1950; and McLaurin

v. Oklahoma State Regents, 1950, 339. U.S. 637, holding

that a black graduate student admitted to a state university

was denied equal educational opportunity by regulations

designed to isolate him from the white students, impairing

‘‘his ability to study, to engage in discussions and ex-

change views with other students ... .’’

Competing Interests

Inevitably, the court’s primary concern in a desegre-

gation case conflicts with other legitimate concerns. The

remedy must accommodate these other interests. But the

accommodation must reflect the primacy of the need to

achieve equal opportunity in education. In its respect for

a variety of interests, a desegregation plan resembles

other equitable remedies. T

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