Appendix — McDonough v. Morgan

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— Coart, U. a |

FILED

NOV 11 1976

In the SE BOONE, AALS |

Supreme Court of the United States

Octoser Term, 1976

“46-664 4

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. SuLuivan, JR.

Francis J. DiMento

Purp T. Trerney

DiMento & Sutiivan

100 State Street

Boston, Massachusetts 02109

Counsel for the Petitioners

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

ee a

TABLE OF CONTENTS

Page

Plaintiffs’ Motion for Further Relief Concerning South

Boston High School, filed November 18, 1975 ...... 1

The District Court’s Notice of Hearing and Procedural

Orders, entered November 19, 1975 .............4.. 13

Defendant Schol Committee’s Objection to Notice of

Hearing and Procedural Orders and Motion for Con-

tinuance, filed November 20, 1975 ................ 16

Stenographie Transcript of Proceedings in the District

Court, December 9, 1975 |pp. 69-115] ............ 19

The District Court’s Order Suspending Appointive

Power of School Committee, entered December 9,

EE ik bine vache ce Wnbavsekacuruas can tacs iiasuet 53

The District Court’s Order Concerning South Boston

High School, entered December 9, 1975 ............ 55

Motion to Stay Orders of December 9, 1975, filed with

the District Court December 10, 1975 ............ 58

Motion for a Stay, filed with the Court of Appeals for

the First Cirenit December 10, 1975 .............. 59

Stenographic Transcript of Proceedings in the District

Court, December 15, 1975 | pp. 1-38] .......... oy

Boston School Committee’s Further Motion for Stay,

filed with the Court of Appeals for the First Cireuit

IEE i vive ny60n0e0s bebeusuecseeeeees 89

The District Court’s Supplementary Findings and Con-

clusions on Plaintiff’s Motion Concerning South Bos-

ton High School, entered December 16,1975 ........ 90

Memorandum and Order of the Court of Appeals for

the First Cireuit, entered December 19, 1975 ........ 110

The District Court’s Modification of Order Coneern-

ing South Boston High School, entered December 24,

SON Rae SGS eek is WORDLE ECRS oN nes Seduce ddaceckar 114

The District Court’s First Order as to Facilities at

South Boston High School, entered December 24,

SD dedévceutesavadssude rhegubunessesdauadeauees

il Table of Contents

Page

Stenographie Transcript of Proceedings in the District

Court, December 31, 1975 [pp. 1-15; 38-55] ........

The District Court’s Corrections in Supplementary

Findings, Filed December 16, 1975, entered January

SS Rewer re ree

The District Court’s Substitution of Temporary Rece-

eiver, entered January 6, 1976 ............. cee ees

The District Cort’s Memorandum and Third Order as

to Facilities at South Boston High School, entered

Weneeeey BD, TOPS ocicccccceviscccadbecsseacsece

Stenographic Transcript of Proceedings in the Dist-

rict Court, March 2, 1976 [pp. 79-97] ..............

The District Court’s Memorandum and Order for Ap-

pointing of Headmaster at South Boston High School,

eer ree eee

The District Court’s Memorandum and Order Concern-

ing Appointment of Administrative Staff at South

Boston High School, entered June 4, 1976 ..........

The District Court’s Modification of Order Concern-

ing South Boston High School, entered June 22, 1976

The District Court’s Further Modification of Order

Concerning South Boston High School, entered Aug-

SB err ee err ee eee

The Opinion of the Court of Appeals for the First Cir-

out, enberas Gad Fe, Bee 6k dv kadacececavicvas

The Judgment of the Court of Appeals for the First

Circuit, entered August 17, 1976 ..................

The District Court’s Memorandum and Further Order

Concerning Appointment of Administrative Staff at

South Boston High School, entered August 20, 1976. .

The District Court’s Memorandum and Further Order

Concerning Appointment of Administrative Staff at

South Boston High School, entered September 27,

1976

143

144

145

153

166

172

174

175

176

191

192

194

Unitep Srares District Court

District or MAssacCHUSETTS

Civil Action No. 72-911-G

TaLLuLAH Moraan, et al.,

PLAINTIFFS,

Joun J. Kerrican, et al.,

DEFENDANTS.

PLAINTIFFS’ MOTION FOR FURTHER RELIEF

CONCERNING SOUTH BOSTON HIGH SCHOOL

Based upon the affidavits of numerous black students

enrolled at South Boston High School (Attachments, pp. 1-

56), and other statements, documents, and evidence attached

to and described in this motion, plaintiffs move this Court

for the entry of orders providing:

(a) that an urgent evidentiary hearing be held to

consider the need to close South Boston High School

to remedy the unconstitutional conditions which exist

in that school; and that at this hearing, the Court and

parties receive reports and recommendations concern-

ing South Boston High School from the Community

Relations Service (CRS), the monitoring staff and

mediation panel of the CCC, and the officers of the

state and local law enforcement agencies stationed in

and around South Boston High School;

(b) that South Boston High School teachers James

Sealese and Arthur Perdigao, and a white transitional

aide known to the students as ‘‘ Big Red’’ be added to

this action as parties defendant, and be directed to

show cause during this evidentiary hearing why they

are not in violation of this Court’s order prohibiting

racial discrimination by all agents and employees of

the defendant school committee ;

(ce) that the defendant Boston School Committee

be ordered to commence proceedings immediately un-

der Mass. Gen. Laws, Ch. 71, see. 42, to remove the

above named individuals permanently from any em-

ployment by the defendants for ‘‘conduct unbecoming

a teacher’’ and for other good cause, the case against

the personnel in said proceedings to be conducted by

an attorney designated by counsel for plaintiffs in this

action; and that pending the outcome of said proceed-

ings, the defendant Boston School Committee be

ordered to remove immediately the above named indi-

viduals from any duties, teaching or otherwise, within

the Boston school system;

(d) that the local school and mayoral defendants

be ordered to investigate immediately and locate one

or more appropriate physical facilities, in a ‘‘neutral’’

location outside of South Boston, of sufficient size to

provide for the relocation of the faculty, staff, and

students of South Boston High School; and that the

local school officials simultaneously report to the Court

on the feasibility of reassigning the students, faculty

and staff presently at South Boston High School to

available seats and teaching positions at other high

schools in the city where space is now available based

on actual fall 1975 enrollments;

(ec) that the defendant school committee members

and superintendent be required to file within two weeks

a plan for supervisors of attendance satisfying their

responsibilities under Mass. Gen. Laws, Ch. 77, § 13

by investigating cases of persons inducing truancy by

promoting school boycotts in violation of Mass. Gen.

Laws, Ch. 76, § 4; and

(f) all other relief deemed by this Court to be

appropriate and proper.

FOr ne Oe mete.

In support of this motion, plaintiffs make the following

allegations:

(1) Since the first day of school in 1974-75, black stu-

dents attending South Boston High School have been sub-

jected to conduct interfering with their right to a peaceful,

desegregated education and threatening their physical

safety. This conduct, examples of which are detailed in

this motion, has included assaults, racial epithets, and dis-

criminatory treatment. Black faculty assigned to South

Boston High School have also been subjected to harass-

ment, verbal abuse, and physical assault.

(2) The severity of the ongoing mistreatment of black

students at South Boston High School is demonstrated by

recent events. The affidavits and other attachments show,

for example:

(a) Black students in South Boston High School

are presently being subjected to discriminatory treat-

ment, abuse, and other lack of support by the predomi-

nantly-white faculty and staff of that school. One

teacher, James Scalese, has climbed upon his desk and

made gestures and sounds like a monkey in ridicule of

black students. On a separate occasion he made similar

monkey sounds and gestures in the doorway of his

classroom at several black students outside. (Attach-

ments, pp. 1-2, 36-37, 38)

(b) Another teacher, Arthur Perdigao, who is the

school football coach, initially thwarted all attempts

by black students to go out for the school’s football

team. On one occasion, he disregarded a note from

the school’s headmaster directing him to allow a black

student to practice with the team. After a black assist-

ant football coach was added to the coaching staff and

six black students were allowed to come out for the

team, the black players were made to ride to practice

on separate buses, and were directed to practice, for

the most part, separate from the white members of

the team. After the team’s October 23 game at White

Stadium, Coach Perdigao told the white players to

‘*get them [the black players] at school the next day.”’

Later he removed the black players from the team for

asserted offences such as ‘‘smoking,’’ although at least

one of the black players is a total nonsmoker. (At-

tachinents, pp. 38-42)

(ec) Other offensive, racially discriminatory actions

by other individual faculty members are described in

the attached affidavits and in subsequent evidence and

testimony plaintiffs intend to present at the eviden-

tiary hearing.

(d) Other actions by South Boston High School

faculty have undercut the smooth implementation of

this Court’s desegregation orders. After the South

Boston Black Student Caucus met on October 8, 1975,

and issued a list of grievances, the Citywide Coordi-

nating Council (CCC) established a mediation panel

to attempt to work out some of the problems in the

school. On or about Thursday, October 16, 1975, after

meeting with members of the panel, the South Boston

High School faculty voted 26-24 not to cooperate with

the work of this group. On information and belief,

the faculty voted subsequently not to cooperate with

a separate task force established by Superintendent

Fahey.

(e) Despite this Court’s ban on the use of racial

epithets within the schools, black students in South

Boston High School continue to be subjected to daily

verbal abuse. In addition to familiar racial slurs,

white students this year have employed the chant

‘*2, 4, 6, 8, assassinate the nigger apes.’’ (Attach-

ments, p. 5). During the changing of classes, groups

of white students frequently sing ‘‘bye, bye. biack-

Ce ee ne

)

bird’’ and ‘‘jump down, turn around, pick a bale of

cotton.’’ The white student caucus of South Boston

High School also issued a list of demauds which in-

cluded the demand that music be played over the

school’s public address system during the changing

of classes for the express reason that ‘‘music soothes

the savage beasts.’’ (Attachment, pp. 14-15) The at-

tached affidavits detail a number of instances in which

school staff and police authorities stationed inside the

building have heard such remarks and chants but have

failed to take any corrective or disciplinary action.

(Attachments, pp. 5-6)

(f) Black students in South Boston High School

continue to be subject to frequent physical attacks by

groups of white students. Many such incidents are

described in the attached affidavits, and other examples

of such incidents can be presented at an evidentiary

hearing. Frequently, one or two black students have

been attacked by a much larger group of white stu-

dents, without provocation. More often than not, school

and police authorities detain and suspend all the black

students involved in the incident, but only one or two

white students. The }!ack students are disciplined for

defending themselves from an unprovoked attack while

numbers of the white attackers escape any disciplinary

measures. (Attachments, pp. 2-3, 5, 22, 27-28, 34, 41,

46, 53)

(g) The police force stationed within the building

has not been a neutral disciplinary force. The attached

affidavits, and other testimony to be presented at an

evidentiary hearing, reveal incidents in which police

officials responsible for breaking up an interracial fight

have held black students while white students con-

tinued to hit or kick them. One black female aide,

wearing a clearly identifiable jacket with the word

‘‘aide’’ on it, was hit, clubbed with a nightstick, and

handcuffed by a state trooper, who later apologized to

the aide and asked that charges not be pressed against

him, when he learned that his actions were in error.

On another occasion, several police officers physically

carried a non-resisting black student down to the base-

ment of the school, dropped him onto the floor, and

threatened to ‘‘break his arms.’’ (Attachment, pp. 2,

5, 10-11, 27-28, 33-34)

(h) During recent weeks, persons presently un-

known to plaintiffs’ counsel have promoted racial ten-

sion within the school through the distribution of

inflammatory handbills to white students. Black stu-

dents have observed the distribution of such handouts

inside a small sandwich shop near the school, and at

other places. One such handbill, distributed in late

October, 1975, reads in part:

TO ALL THE WHITE KIDS IN ALL THE

SOUTHIE SCHOOLS ... IF YOU THINK

ITS JUST BUSING -YOURE WRONG. ITS

TOTAL TAKE OVER AND YOURE JUST

SITTING ON YOUR ASS LETTING THEM

... WAKE UP AND START FIGHTING FOR

YOUR SCHOOL AND TOWN. ITS TIME YOU

BECOME THE AGGRESSORS... DONT BE

SCARED BY THE FEDERAL OFFENSE

THREATS. A FIGHT IN A SCHOOL ISNT

A FEDERAL OFFENSE... BE PROUD YOU

AhE WHITE AND FROM SOUTHIE AND

SHOW EVERYONE THAT THIS IS HOW

YOU ARE GOING TO KEEP IT NO MATTER

WHAT. (Attachments, p. 57)

Other examples of inflammatory handbills are at-

tached. (Attachments, pp. 58-60)

(3) The events described in paragraph (2), which have

occurred in South Boston during the opening months of

Phase II, are part of a pattern of racially discriminatory

and hostile conduct which began before the trial in this

action, and has continued through the succeeding months

of Phase One and Phase Two desegregation. The evidence

suggests that this racial animosity and discrimination con-

tinues to intensify rather than lessen. A partial listing of

racial factors surrounding South Boston High School,

which are already part of the record of this case, include

the facts set out below.

(4) Until the commencement of desegregation in Sep-

tember 1974, South Boston High School was a virtually

all-white school. The following statistics show the school’s

student enrollment and faculty make-up in 1967-68 and

1972-73.

Year —Students— — Faculty —

B W OM B W OM

1967-68—0 1602 0—1 78 «(OO

1972-73 —1 1819 23—2 106 0

Discriminatory conduct by school and other governmental

officials created and maintained South Boston High School

as a racially identifiable ‘‘white school.’’ (See 379 F.Supp.

at 425-28, 438, 440-49, 459-60, 463-66, 471-73.)

(5) The problem of discriminatory treatment of black

students at South Boston High School existed and was

recognized prior to court-orde:ed desegregation. (See

Deposition of Dr. William Reid, September 12, 1972, pp. 12-

23, 30-31, Plaintiffs’ Trial Exhibit 570; Report and Recom-

mendations of Louis Jaffee, May 28, 1973; 379 F.Supp.

at 446.)

(6) On a number of occasions during the 1974-75 school

year, crowds of white persons menaced black students

assigned to South Boston High.

(a) On the first day of the 1974-75 school year,

September 12, 1974, at the end of the school day,

crowds of white persons m South Boston stoned the

buses transporting black students and teachers from

the schools in that community, including South Boston

High School. Some of the black students and teachers

were cut, and many buses were damaged. There were

also stonings on the second day of school, September

13, 1974. (See Plaintiffs’ Motion for Impoundment,

and attached affidavits, September 13, 1974; Plaintiffs’

Second Motion to Impound, and attached affidavits

September 16, 1974.) Violence and harassment con-

tinued on subsequent days.

(k) In order to prevent or minimize the occurrence

of such incidents, it has been necessary since the sec-

ond day of the 1974-75 school year to assign large

contingents of police te convoy buses transporting

students to and from South Boston High School and

to guard the area around that school. (See, for ex-

ample, Attachments, p. 61, Deployment of Police,

March 21, 1975.)

(ec) On December 11, 1974, after a white student

was stabbed in South Boston High School, a large

crowd of white persons gathered at the school, pre-

venting officials from returning black students to their

homes. The black students were removed from the

area by use of ‘‘decoy buses,’’ after a substantial

number of police reinforcements arrived at the school.

Thereafter, South Boston High School was closed until

January, 1975. (See Video Tape, Exhibit 1, December

13, 1974, pp. 102-104.)

(d) On May 8, 1975, after the Court had entered

an order limiting gatherings near South Boston High

School, a large crowd of white persons congregated

at the school. Boston Police Commissioner Di Grazia

characterized the situation as follows in a letter to

Secretary of Public Safety Barry on May 9, 1975:

Several incidents have occurred recently in and

around South Boston High School causing large

hostile, aggressive crowds to gather in the vicinity

of the hith school. Today, May 8, 1975, a bus

carrying students was stoned at the Dean-Hart

School about 11:00 A.M. Therefore, I am request-

ing the restoration of the eighty-five (85) State

Troopers, your department was utilizing as a

reserve force at the Commonwealth Pier...

(Attachments, p. 62)

(7) During the 1974-75 school year also—despite numer-

ous precautionary measures—tension, disruption, and vio-

lence remained at such a high level in and around the

school that the Mayor declared on October 7, 1974 that’

city police officials were no longer able to guarantee by

themselves maintenance of public safety in South Boston

and petitioned the Court to order a contingent of United

States marshalls to assist in keeping order there. (Attach-

ments, pp. 63-69; Letter of Mayor Kevin White and affi-

davit.)

(8) During the 1974-75 school year, black students as-

signed to South Boston High School were on their way to

school, in the vicinity of the school, and within the school

subjected to racial epithets, and vile and obscene gestures

by white students and residents of South Boston. These

incidents included chants such as ‘‘niggers eat shit’’ and

the mimicking of a monkey. In addition, racial epithets

were painted on buildings. (See Video Tape, Exhibit 1,

December 13, 1974; Testimony, Transcript of Hearing,

December 13, 1974, pp. 79-80, 85, 97-98, 101, 123.)

(9) Racial mistreatment in South Boston had not been

limited to students. For example:

(a) Prior to the start of the 1974-75 school year,

some black teachers assigned to South Boston High

10 :

School were harassed. (See Report of Boston Teachers

Union to the Court, September 6, 1975)

(b) Some black teachers were riding on the buses

stoned on the first day of the 1974-75 school year.

(ec) Black teachers and staff have been subjected

to racial epithets. (Testimony, Hearing of December

13, 1975, pp. 80, 85)

(d) Since the start of the 1974-75 school year,

many black persons have been subjected to racial vio-

lence in South Boston. One snch incident, a mob

attack on an innocent passerby, resulted in a federal

court conviction of one of the perpetrators which ex-

plicitly linked such general violence to interference

with exercise of black students’ constitutional rights

under this Court’s orders;

(e) Some white residents of South Boston have

been subjected to harassment for conduct such as par-

ticipating in a bi-racial council election. (See Attach-

ments, pp. 70-73)

(10) The problems which black students have experi-

enced at South Boston High School are to a significant

degree the result of intentional conduct by organizations

and individuals in South Boston. For example

(a) The South Boston Home and School Associ-

ation, during 1974-75, and the South Boston Informa-

tion Center, during 1974-75 and 1975-76, have pro-

moted, successful school boycotts in violation of state

law. See Mass. Gen. Laws, Ch. 76, 4 4. These actions

have created a climate in which more serious violations

of law were likely to occur, and have occurred. (See

Attachments, pp. 74-80)

(b) The South Boston Information Center has

promoted racial tension. (See Attachments, pp. 81-83)

sel have promoted racial tension. (See Attachments,

pp. 57-60)

(11) On information and belief, plaintiffs allege that

the defendant school committee members and superintend-

ent have not acted against persons urging truancy. (See

Mass. Gen. Laws, Ch. 77, § 13.)

(12) The Court has attempted by a series of actions to

improve the situation in South Boston High School and

other schools. On October 9, 1974, December 17, 1974, and

September 5, 1975, the Court entered orders concerning,

inter alia, the assignment of police personnel to South

Boston High School and other schools; ‘‘safe areas’’

around schools and bus routes; persons entitled to en-

ter school and racial epithets. By an order entered

on October 4, 1974, and in subsequent orders, the court

provided for the creation of parent and student councils.

The student assignment process set forth in the Phase Two

Plan provides initially for choices of school. The Plan also

provides for university and business involvement to enrich

educational programs. The Court has directed actions to

upgrade the physical plant at South Boston High School.

For months, large numbers of police have been stationed

inside and outside of South Boston High School. The

affidavits of black students filed with this motion demon-

strate that these actions have not produced a viable non-

discriminatory educational program. (See Attachments,

pp. 1-56) Black students continue to be subject to assault,

and offensive, humiliating and discriminatory treatment.

(13) Asa result of the conduct described in this motion,

black students (and white students) assigned to South Bos-

ton High School have lost many days of education.

(14) The assignment of school system staff (adminis-

trators, teachers, aides, custodians, cafeteria personnel,

ete.) and police personnel to South Boston High School in

1974-75 and 1975-76 have contributed to the continued iden-

tification of South Boston High School as a ‘‘ white school.’’

(See Attachments, pp. 84-89)

(15) Considering the implementation of the Phase One

and Phase Two desegregation plans as a whole, the prob-

lems experienced at South Boston High School have been

unique in their duration and intensity.

(16) The problems experienced at South Boston High

School in 1974-75 and 1975-76 are to a substantial degree

a consequence of the school’s location in South Boston as

opposed to a ‘‘neutral area”’ (i.e., an area not so intensely

associated with either the white or black community).

(Attachments, pp. 7, 9, 23, 37)

(17) In recent years the local school and mayoral de-

defendants have frequently obtained, and converted to

school use, facilities originally designed for other purposes.

Examples include Temporary Madison Park, the L Street

(Bathhouse) Annex, and the Haley and Hernandez Schools.

Respectfully submitted,

Rosert Pressman, Eric E. Van Loon

(Center for Law and Education)

Rupo.ien F. Pierce

(Keating, Peretta & Pierce)

Laurence 8S. Forpuam,

J. Harotp FLannery,

(Foley, Hoag & Eliot)

Joun B. Levussporr

(Boston University Law School) ; and

NATHANIEL R. Jones, (N.A.A.C.P.)

Cambridge, Massachusetts 02138

(s) Ropert Pressman

Rosert PressMAN

(s) Eric FE. Vaw Loon

Eric E. Van Loon

Center for Law and Education

Harvard University—Larsen Hall

‘Cambridge, Massachusetts 02138

Dated: November 17, 1975

erm. at ene A OI

ee ee ee ee

Unrrep Srates District Court

District or MASSACHUSETTS

Civil Action No. 72-911-G

TaLLuLAH Moroan Er At.,

PLAINTIFFS,

Jonn J. Kerrican Er At.,

DEFENDANTS.

NOTICE OF HEARING AND PROCEDURAL ORDERS

November 19, 1975

Garrity, J. Plaintiffs’ motion for further relief concern-

ing South Boston High School will be heard November 21,

1975 at 10:00 A.M. in the John W. McCormack Federal

Building, Boston, Massachusetts. As provided by Rule

43(e), Fed. R. Civ. P., the matter will be heard on affidavits

presented by the respective parties, except that the court

may at the hearing direct that certain affiants and other

persons whose attendance is ordered herein give oral

testimony.

The defendants Boston School Committee and Superin-

tendent of Schools are ordered to procure the attendance

at said heaiing of tke following persons: John J. Kelly,

Deputy Superintendent; Joseph M. McDonough, District

Superintendent of Community District 6; William J. Reid,

Headmaster of South Boston High School; Harold Goor-

vich, Assistant Headmaster; and the following teachers at

South Boston High School: James Sealese, Arthur Per-

digao, Mr. Hamann of Room 208 and Ms. Allen of Room

218; and also an officer or representative(s) of the faculty

senate at South Boston High School who is able to explain

the circumstances and grounds of the vote of the faculty

senate on or about October 16, 1975 by a vote of 26 to 24

not to cooperate with the mediating board constituted by

the Citywide Coordinating Council on October 9, 1975.

It is further ordered that defendant Marion J. Fahey,

Superintendent of Schools, attend in person.

Plaintiffs are ordered to procure the attendance at said

hearing of South Boston High School students Nos. 1, 2,

3 and 7'; and other affiants whose presence is requested

hy designated code number by counsel for the school com-

mittee and superintendent by 4:00 P.M. on November 20

for the specific purpose of cross-examining said students

as to the subject matter of their affidavits. If plaintiffs

plan to offer the oral testimony of other affiants, plaintiffs’

counsel shall notify counsel for the school committee and

superintendent by 4:00 P.M. on November 20.

The defendants school committee and superintendent are

further ordered to file by or before 9:00 A.M. on November

21, 1975, and to serve copies on counsel of record previous

to the commencement of the hearing on November 21, a

complete description of all persons currently attending

South Boston High School in any capacity, using for this

purpose attendance on Tuesday, November 18, 1975. This

description shall present as complete a picture as possible

in words, of every aspect of the personnel. It shall include

the following information:

(a) Students —the grade and racial classification

(white, black and other minority) by total num-

bers, of the 540 students who attended on Novem-

ber 18, 1975, and a similar breakdown by grade

and race of students enrolled at South Boston

High School? as of that date (which totaled 891

as of October 17, 1975).

(b) With respect to each faculty member assigned to

South Boston High School, name, residence in-

1 A separate impounding order as to the identities of the student

affiants was entered yesterday.

2 All references to South Boston High School in this paragraph

refer to the main high school building only. |

Ae ee ee PNR

cluding street address, racial classification (white,

black or other minority), course(s) taught, and

year when first assigned to South Boston High

School.

ber of the administrative staff at South Boston

High School, including name, residence including

street address, racial classification, position, and

year when service at South Boston High School

began, this information to be furnished with re-

spect to all persons regularly employed at the

school including guidance counsellors, office per-

sonnel, nurses and administrative aides.

(d) A list of persons other than those described in the

three previous subparagraphs who have been fur-

nished ID ecards for the purpose of admitting them

to the school during school hours, showing where

possible the name, residence including street ad-

dress, and racial classification of each such person.

It is further ordered that a similar complete description

be filed with respect to all persons currently attending the

L, Street Annex of the South Boston High School in any

capacity, using for this purpose attendance on November

18. The same information as called for in subparagraphs

(a)-(d) of the previous paragraph shall also be filed and

served by the times stated in the previous paragraph.

It is noted that on November 18, 221 students attended

L Street Annex and that the enrollment there as of October

17 was 343.

Defendant Superintendent Fahey is also directed to file

and serve by the times stated in the previous paragraph

a statement of the names and positions of any separate

task force established by her to deal with problems at

South Boston High School, and the date when such task

force was established.

The defendant Mayor of the City of Boston is ordered

to file and serve by the times above stated a statement

describing state police personnel currently stationed in-

side South Boston High School during school hours, using

the situation on November 18 for this purpose. This state-

ment shall divide the police into two residential categories,

namely, residents of Boston and residents outside Boston,

and shall show by total numbers the number of white, black

and other minority police officers in each of the two cate-

gories. The statement shall also give the same residential

and racial information separately with respect to any super-

visory state police officers stationed inside the school; and

similarly with respect to any City of Boston or Metropoli-

tan District Commission police and their supervisory offi-

cers, if any, stationed inside the high school. A separate

statement similarly broken down and containing the same

types of information shall be filed for the high school’s

L Street Annex.

(s) W. Arruur Garrity, JR.

United States District Judge

Unitep Strares District Court

District oF MASSACHUSETTS

[Title omitted in printing]

DEFENDANT SCHOOL COMMITTEE’S OBJECTION

TO NOTICE OF HEARING AND PROCEDURAL

ORDERS AND MOTION FOR CONTINUANCE

The defendant School Committee hereby objects to the

provisions of the Notice of Hearing and Procedural Orders

entered November 19, 1975, and moves the Court to con-

tinue for thirty (30) days the hearing scheduled for Novem-

ber 21, 1975. In support hereof, the defendant School

Committee assigns the following grounds:

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1. The shot-gun approach of the Notice of Hearing

and Procedural Orders (hereafter Notice) denies the de-

fendant School Committee of a fair trial on the issues.

Counsel for the School Committee did not receive a copy

of the Notice, setting the hearing for 10:00 a.m., November

21, 1975, until approximately 4:30 p.m. on November 19,

1975.

The Superintendent and eight School Department em-

ployees are ordered to appear at this hearing, yet no

adequate opportunity is given counsel to confer with these

individuals. The defendant School Committee is given one

working day in which to compile a ‘‘complete description

of all persons currently attending South Boston High

School in any capacity ... [which] description shall present

as complete a picture as possible in words, of every aspect

of the personnel.’’

2. The unconscionably short period of time between the

Notice and the hearing denies the defendant School Com-

mittee of adequate representation of counsel. It is incon-

ceivable that the defendant School Committee and its

counsel should be expected to be prepared to rebut the

allegations contained in anonymous affidavits and doeu-

ments submitted with the plaintiffs’ Motion for Further

Relief Concerning South Boston High School, which Mo-

tion, with attachments, was not served on counsel for the

defendant School Committee until Tuesday, November 138,

1975. Fundamental fairness mandates something more

than a day’s notice before a party must defend against

the allegations of unknown affiants.

3. The Notice, moreover, is preferentially prejudicial

to plaintiffs. There are many other matters of pressing

importance before the Court in this case, yet the plaintiffs

request and are granted an urgent evidentiary hearing on

the closing of South Boston High School. The allegations

of urgency are seen as hypocritical and unfounded when

it is remembered that while the plaintiffs have for some

time been intending to seek the school’s closing, they have

not deemed it advisable until November 18, 1975, to en-

lighten the Court or the parties as to the specifies of their

complaints.

4. The Notice is objectionable for the further reason

that it requires the defendant School Committee to reveal

the names and addresses of all teachers and other staff at

South Boston High School, some of whom are potential

witnesses at the hearing. These individuals are no less

subject to possible harassment and intimidation than are

plaintiffs’ anonymous affiants.

Indeed, the prejudicial and preferential nature of the

Notice is manifested by the treatment accorded plaintiffs’

affiants, whose identity the Court insists on maintaining a

iffvstery while at the same time protecting them from

cross-examination by Rule 43(e).

In sum, the defendant School Committee vehemently

objects to the provisions of the Notice of Hearing and Pro-

cedural Orders and, relying on the fundamental dictates

of due process, requests at least a thirty-day continuance

in this matter.

By its attorneys,

DiMento & SULLIVAN

(s) James J. SuLLIVAN, JR.

James J. SuLLIVAN, JR.

100 State Street

Boston, Massachusetts 02109

523-5253

November 20, 1975

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Unitep States District Court

District oF MASSACHUSETTS

STENOGRAPHIC TRANSCRIPT OF PROCEEDINGS

December 9, 1975

[69] Afternoon Session

(The hearing was resumed at 2:20 o’clock p.m.)

The Court: Well, I apologize for being late.

The Court would prefer always to file a written memo

accompanying decisions, but sometimes it is not feasible,

and this chances to be one of those situations. You will re-

call, for example, that I put out the desegregation plan in

May and then put out the supporting memo in June.

This opinion or memo today will not cover every aspect of

the hearings that we had on the plaintiffs’ motion. That

is, there are some matters which will not be covered, and I

will get them into some written order, I expect before

the end of the week. One illustration would be the proposal

that met with considerable agreement, that the media be

admitted to the schools. That is a proposal that will be acted

on, and very probably favorably but with a variety of

conditions, and I have not had time, frankly, to think

through the conditions. That is just one example of some

things that will be added.

Today I am anxious to get the orders out, and certain

parts of the findings of fact will be filed subsequently,

and I hope, again, before the week is out, and some of

these written orders will also be filed, as I will explain,

but there are two reasons why I want to get this matter

decided. Number one is because it is of such importance,

and number two, [70] because I get so many inquiries

from people who are anxius to learn the Court’s rulings.

Turning, then, to the particular motion of the plain-

tiffs that we had the hearings on, the Court’s first finding,

set of findings, is that, generally speaking, the plaintiffs

proved the allegations in their motion. As we have seen at

so many different times in this and other cases, there are

two parts to any court finding: first, what was proved, and

secondly, what should be done about it; the difference

technically between remedy and liability.

Turning to the motion — and that I have to do, and I

would ask perhaps counsel if they have a copy of the

motion to turn to it — the Court has already ruled on many

parts of the motion. It it denied, the motion that the

individual teachers be added as defendants, and denied,

motions that they be added as parties.

With respect to the motion Paragraph E that the com-

mittee be ordered to file a plan for supervising attendance

and causing people to investigate persons inducing truancy

by promoting boycotts, I reserve judgment on that, and

will cover that at a later date.

With respect to the factual allegations in the motion,

without reading every finding that the Court makes, I

want to make these findings by reference to the motion,

and I find that the plaintiffs have proved by a clear

preponderance of [71] the evidence the following allega-

tions in their motion:

Paragraph 1 in its entirety.

Paragraph 2 is subdivided into A, B, C, D, et cetera,

subparagraphs. In 2-A, the first sentence I find is a fact,

but strike the word ‘‘abuse.’? That shoud be stricken. In

a minute I will explain that I do not make findings with

respect to the allegations pertaining to the individuals

Mr. Scealese and Mr. Perdigao except in one particular

aspect, and I will explain the basis for that ruling.

Turning to Paragraph D, sub-D, the Court so finds.

Subparagraph E, the Court so finds, with one qualifica-

tion. The word ‘‘daily”’’ is stricken in the third line of that

subparagraph where it says ‘‘daily verbal abuse.’’ I find

they were subjected to verbal abuse, but not daily.

Subparagraph IF is changed in so many respects in my

finding, and I am going to read it as found. It is a sub-

stantial departure from the proposal. The finding is as

follows:

Black students in South Boston High School have been

subjected to physical attacks by groups of white students.

One or two black students have sometimes been attacked

by a much larger group of white students without provo-

cation. School and police authorities have detained and

suspended all the black students involved in the incident,

but only one or two white students. Black students have

sometimes been [72] disciplined for defending themselves

from an unprovoked attack, while numbers of the white

attackers escape any disciplinary measures.

The difference in the Court’s finding and in the pro-

posal is that the proposed finding is in terms of these

things happened frequently, and more often than not,

this happened. I find that these things happened, but not

frequently and not on any regular basis.

The next finding is Subparagraph H.

Then turning to Paragraph 3, the Court adopts that as

a finding but strikes from the proposal the second sentence

in that subparagraph. That is the sentence which says

that racial animosity and discrimination continues to in-

tensify rather than lessen. That sentence in the paragraph

the Court strikes, because I think that was not shown, and

I do not believe that that is the situation.

Paragraph 4 the Court finds as submitted; 5; 6, that

means 6-A, 6-B, C, D.

Turning to Paragraph 7, the Court so finds; 8; 9; 10; 11,

except that the Court strikes the opening six words, or

seven words, ‘‘On information and belief, plaintiffs allege

that.’’ The Court finds, as submitted, that the defendants

School Committee members and superintendent have not

acted against persons urging truancy. That is a fact.

Paragraph 12 is so found, except in the very last [73]

sentence it is changed to read, ‘‘ Black students have been

subject to assaults,’’ et cetera, and the words ‘‘continue to

be’’ are replaced.

Paragraph 13 as drafted, and the same with 14, 15, 16

and 17.

Turning to the aspect that, with one exception, the Court

makes no findings either way on, the allegations against

Messrs. Sealese and Perdigao, with one exception, to be

explained in a minute, the Court already denied summarily,

and the reasons are these: The Court already denied

summarily the only substantive relief sought against those

individuals. In closing argument, the plaintiff, in the light

of that, asked that the Court make declaratory statements

about their individual liability, but courts do not make

declaratory statements which are unnecessary to their

decisions.

As the Court endeavored to explain several times dur-

ing the course of the hearing. the purpose of the hearings,

in the Court’s mind, was not to fix liability on any par-

ticular individuals; rather, to determine larger issues, spe-

cifically, issues connected with whether the desegregation

plan promulgated by the Court is being implemented, is

it being carried out at South Boston High School.

Finally, the individuals Messrs. Sealese and Perdigao

were not parties to the case, to the motion. The Court

denied the plaintiffs’ motion to have them added as

parties, [74] and there was no action taken to add them as

parties. I am aware also that there is litigation pending

elsewhere with respect to at least one of the individuals,

and the Court believes that if it were to make findings of

fact on those matters, it might very well, without sufficient

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foundation, affect the course of pending litigation in other

courts.

The exception to my conclusion is that no findings should

be made either way with respect to the Scalese and Per-

digao allegations has to do with a situation and not an

incident. The Court will not make findings on incidents,

but rather on a situation. That has to do with the fact that

the Court does find that the South Boston High School

football team was kept segregated by Coach Perdigao,

and in order to explain the basis of that finding and con-

clusion, because it has other consequences, which I will

come to in a few moments, I owe to the parties and to

Coach Perdigao a statement ef the basis of the Court’s

conclusion.

The Court’s original order imposed an affirmative

obligation on the School Committee and the School Depart-

ment to eliminate all consequences and vestiges of segrega-

tion previousy practiced. I will omit references to citations

which are in the typewritten draft from which I am

reading. The Court’s desegregation plan imposed a more

specific obligation to conduct extracurricular programs

on a desegregated basis, and that is here in the plan, and

there [75] is no need to pause to state the page reference.

It is Page 3. Thus, as football coach, Coach Perdigao was

under a more specific obligation to take affirmative action

to implement program desegregation more than some other

persons in different situations. The evidence adduced at

the hearing in my view clearly showed that Coach Perdigao

failed to fulfill his obligation to take affirmative action to

desegregate the football team and to conduct himself in a

nondiscriminatory fashion.

South Boston High had no football team during the

1974-75 school year. Thus, it was necessary to recruit an

almost entirely new team. The first practice was scheduled

for August 28th. Dr. Reid phoned Mr. Perdigao on or

about August 2nd and offered him the position of head

coach after telling him the main concern would be to have

an integrated team. Mr. Perdigao accepted, and set about

recruiting a team, placing a notice in the South Boston

community newspaper, which apparently succeeded in at-

tracting sufficient white players for the first practice.

A few days before the first practice, Coach Perdigao

decided to hold physical examinations for black players at

a medical center in a predominantly black neighborhood,

and to place a notice in the black community newspaper.

That notice did not appear before the first day of practice,

and there was no evidence adduced at the hearings that it

ever did [76] appear. Coach Perdigao went to the medical

center, At the planned time, no black students showed up.

During the first week of school, orientation assemblies

were held for all students at South Boston High School.

Mr. Perdigao spoke at the assemblies and expressed in-

terest in having more students try out for football. At the

close of each assembly, he spoke with students who were

interested in football, including several black students. At

least two black students, Marcus Anderson and Michael

Watson, returned completed athletic cards with a doctor’s

and a parent’s signature, but they did not join the team at

that time.

Several weeks later, after the black students’ protest on

October 8th, five blacks and several whites did join the

football team as new recruits, on or about October 16th.

Mr. Perdigao did treat all new recruits, black and white,

quite alike. The new recruits had to practice for five days

without uniforms and for five days with uniforms before

they could play in a game. Thus, none of them played in

the first game thereafter against Dorchester High on Octo-

ber 23rd.

On that day, the black recruits sat in the stands without

uniforms. At the conclusion of the game, a racial fracas

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broke out. I do not make any findings with respect to the

allegations about what Mr. Perdigao may or may not have

said with respect to white students getting back on the bus

when he was endeavoring to get them back into the bus and

away from the [77] melee that was in progress in the center

of the field. Even if he said what the plaintiffs alleged

him to have said, it was the type of a single statement, it is

an incident, in my view, it is not a situation, and the Court

will not make findings with respect to particular incidents.

It could very well be that the motive of Mr. Perdigao, had

he told the white students to do what the plaintiffs allege

he did, was simply to get them back into the bus and out

of the way, to protect them and everyone else, so the Court

makes no finding with respect to that matter, for the

reason that it is not a hearing here to deternune the indi-

vidual liability of any particular person.

I turn now to the events of the following day, October

24th, when there was a major confrontation of near riot

dimensions between black and white students at South

Boston High School at the commencement of school. Mr.

Perdigao stayed out of school. On Saturday he informed

the newly appointed black coach and the black recruits that

all five black recruits were off the team. Mr. Perdigao said

that he removed two black recruits for throwing equipment

and two for smoking. Yet he did not learn that one of the

black recruits had been smoking until the following Mon-

day. Thus, for that recruit and one other, Marcus Anderson,

Coach Perdigao had only what he called ‘‘safety reasons’’

for removing the black players from the team.

[78] This type of justification does not suffice for the

different treatment which was afforded those black stu-

dents. Mr. Perdigao was under an affirmative obligation

to conduct the football program on a desegregated basis,

and in the Court’s opinion and finding, Mr. Perdigao failed

to fulfill that obligation. He did not recruit blacks until

after the first week of practice, thus placing them at an

initial disadvantage and indicating to them that they really

were not wanted. When blacks showed an interest in join-

ing the team, he did not follow up by encouraging them and

seeking them out. Instead, as he testified, he felt it was

their own choice and that he had no responsibility of his

own to see whether or not they came out for the team. When

blacks finally did join the team, he removed them on the

first available pretext. His action in doing so was dis-

criminatory. The record of Mr. Perdigao’s direction of the

football team’s program at South Boston High School

failed to meet the requirements of the Court’s order.

That concludes the findings on that aspect of the matter.

In addition, the plaintiffs’ evidence plus two visits by

the Court to South Boston High School provided a clear

answer in my mind to the question whether or not the

Court’s plan is being implemented at South Boston High

School, and the conclusion that at least to me is very

clear and serious is not by a long shot. The details of the

Court’s finding [79] that the plan is not being implemented

or even being close to being implemented at South Boston

High School will be filed in a memorandum of separate

findings on that point, which I am unable to address com-

prehensively at this time. I will say only one thing along

those lines and will elaborate in written form.

The Court did return to South Boston for a second

time, and, as was reported, a reason was so that I could take

up where I had left off on the first visit, which I had to cut

short, but there was an additional reason. I felt that I

should return because I could not really believe what I saw

there on my first visit and I wanted to go back to see

whether my initial conclusions and observations were, at

least to the best of my ability, accurate.

So, with respect to the basic allegations of the plaintiffs

in their motion, the Court finds and concludes that the

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plaintiffs did prove the number one allegation in their

motion, that the black students at South Boston High

School are not receiving the peaceful desegregated educa-

tion to which they are entitled under the Fourteenth

Amendment to the Constitution of the United States; and

secondly, and equally important in this present context, the

Court’s desegregation plan is not being carried out at

South Boston High School and the Court proposes to make

a variety of orders to see to it that it is.

[80] What should the remedy be? The plaintiffs’ pro-

posal is that the high school should be closed and relocated,

or that the student body, after the school is closed, should

be dispersed to other schools, and the court denies that

motion in that regard. The remedy will not be the closing

of the South Boston High School, and the reasons, and there

are many, follow, or some of them follow.

The first and principal reason for not closing the high

school is that the racial tensions and educational defic-

iencies at South Boston High School are, in my opinion,

more readily curable by other measures than by closing

the school, and those measures will be ordered today and

made more specific by written orders which I will issue be-

fore the end of the week. Basically, as I will develop in a

moment, the South Boston High School is not going to be

run by the School Committee, the South Boston High

School is going to be run by the Court under receivership

until further order.

The other reason for keeping South Boston High School

open is that from what I saw and what I heard in testimony

and what I believe since getting involved in this picture

over a year and a half ago, South Boston High School can

be the best high school in the entire city, in my opinion.

The combination of Southie pride and Roxbury courage,

when it is made to work and when it is put to constructive

use, can make this school the best high school in the City

of Boston. I am [81] not going to develop, because it is

unnecessary to develop, all of the assets that are waiting

to be built upon in South Boston High School.

Think of the children who are going there right now.

To a great extent, both white and black are attending that

school under enormous difficulty and against enormous

pressure from people whom they know in their own com-

munities, so right at the beginning, you have the fact that

the students want an education badly enough to undertake

enormous personal sacrifice in order to get an education.

Given half a chance, South Boston High School I do believe

ean he a great school, and one that students of all races

and backgrounds will attend with a vitality and purpose

that is missing there presently.

In that respect, I simply subscribe to the report of the

Mediating Board, which I distributed to counsel at the be-

ginning of the hearing and was dated November 18th, and

this is the CCC Mediating Board, which stated that the

Board remained firm in its conviction that the lessening

of racial tensions and the provision of quality education

in a secure environment is still possible at the South Bos-

ton High School. I would change the words ‘‘is still pos-

sible’? to the words ‘‘will oceur.’’ It is going to happen

there, and the expectation of the Mediating Board and

others who have faith and hope in that school and other

schools is going to be fulfilled. _

[82] I will divert for a moment to address specifically

the suggestion and argument; which was perhaps not

originated but which appeared in the list of white students’

demands in the opening paragraph, and then counsel picked

it up at the hearing before me, sought to make something

of this allegation, and alleged ‘‘conscious effort of the black

community and the black students to create incidents to

provoke the closing of South Boston High School,’’ and

that was the innuendo of counsel cross examining some of

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these black students, that these allegations were the re-

sult of a sinister move by the black community to close

the high school.

My finding and conclusion and determination on that

question is that there was not a scintilla of evidence pre-

sented before me to back up any such litigation. What

should the black community do when the students come

back with these tales of intimidation and hostility in the

schools to which they are being sent? Did the black parents

and leaders of the black community want the school to be

closed? Absolutely yes. Of course they wanted and have

moved and have come into Court to seek that the school be

closed, but that thought is not a novel thought with the

black community. Didn’t the mayor himself and the Com-

missioner of Police himself urge that the school be closed?

Mr. Cunningham, President of the Faculty Senate, on the

witness stand said that in his opinion, the situation was

deteriorating there and it was not unlike [83] the situation

that built up previous to the tragic Michael Faith stabbing

a year ago last October.

So I cannot imagine that, given the background of thirgs

that happened last year and this year at that high school,

there would not be a sensible and perfectly logical and

understandable petition on the part of some members of

the black community, especially the parents of those young-

sters, to have the place closed so that the children would

not have to attend school there, but in a more friendly

atmosphere, but that is quite different from saying that .

there were false stories and false reports manufactured in

order to do injury to the people of South Boston.

I do not see Mr. Portnoy here, but he represented the in-

dividual teachers who were named, and he himself stated

that he did not consider that there was any recent fabrica-

tion of allegations by the black pupils who took the witness

stand, and he explicitly disavowed the innuendos that crept

into the examination of those black students and the specific

argument by School Committee counsel that they— I do not

want to be mistaken. He said in response to my question

that he would leave that up to Mr. Portnoy, but the Court

finds, as conceded by capable counsel, Mr. Portnoy, that

there was no recent fabrication of these stories. They were

told in good faith. That does not mean that every word

that was stated was true, but there was community con-

spiracy on the part of the black [84] community to

deprive South Boston of its closest and properly called

neighborhood high school.

The reason basically why the school is not being closed

is because the Court is extremely confident that the situa-

tion can be turned around there, and quickly. It has already

been demonstrated that the black pupils and white pupils

alike can go to and from school with safety, and I cannot

conceive of the Court and its agents and the Schoo] Depart-

ment and its agents being unable to make the school as safe

inside as it is going to and from and to harness the energies

of these young pupils productively.

What, then is the Court’s order? In two respects — I

have mentioned receivership first, and I will come to that

in a minute, but there are two important orders which,

while not receiverships, have some of the characteristics of

receiverships, and I will turn to them. First I will refer to

the Department of School Security Services, about which

I inquired this morning. This is the impounded filing by

Miss Fahey on the 26th of November, which I referred to

this morning and asked Mr. Tierney, and I will make it

more specific, please, by Thursday if you can, to indicate

what portions should be continued to be impounded and

what not. But the Court hereby schedules a hearing on

Friday of this week, that is, the 12th of December, at ten

o’clock, to hear the parties with respect te proposals for

modifications or changes or amplifications in [85] this pian.

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Mr. Tierney this morning said that perhaps the School

Committee would consider this plan, which is generally

what has been needed all along, what the Court has been

waiting for all along, and what School Department officials

have been endeavoring to get for weeks, if not morths or

longer, but vhich we have not yet received, and the Court,

after hearing whether there should be modification in this

plan, is going to order it into effect.

The Office of School Security Services, which is set up

in this plan, would deliver the kind of programatie and

other support to schools like South Boston and other schools

where the situation could be improved, and the operations

of this department, which is set up in detail in this plan,

are needed desperately at South Boston High School and

elsewhere. The department will be headed by a special as-

sistant to Miss Fahey, and under him or her there will be

three coordinators: Coordinator of Safety Programs, of

Pupil Personnel Safety, of Investigation, Disciplinary

Procedures. Then there are teams and personnel under

them.

This is the sort of program that is needed and that can

help immeasurably, but where has it been? For weeks and

weeks, I estimate at least two months, this need has been

discussed in a series of hearings in open court, and as far

as the Court is convinced, when it comes to action by the

School [86] Committee as distinguished from the members

of the School Department, the Curt might just as well have

been talking to the wind. It is impossible to get action in sup-

port of the—I do not want ti overstate it. In this respect, it

has been impossible for the Court to get action from the

Boston School Committee.

Looking back in my notes here, my notes of a hearing on

October 2nd, here is a group, a search committee, that was

going to find someone to head up this department, and I

wonder what happened to these people. It was Peter Blau-

velt, from Prince George’s County; Alex Villio, from Ak-

ron, Ohio. Those are my notes. Joseph , Former

Commissioner McNamara; a man named Sidney Cooper,

from New York. The target date for selection of a person

to head up and organize this type of a department was the

first of November.

We went from Mr. Walsh in the summertime, who him-

self, together with Mr. Leftwich and others, and his was

a coordinating holdover capacity, to the Cou ’s insistence

that somebody be put in charge and get this sort of support

and program operating, and it was wished upon Mr. Doher-

ty, who had as much as he could handle, and who was not

by background and training able to take hold of an opera-

tion such as this, and finally the Court had to put it tem-

porarily in the hands of Mr. Kelly, the Deputy Superinten-

dent.

The Court can wait no longer and will wait no longer. [87]

The hearing on Friday will be to consider the proposals of

the parties with respect to this plan. There may be modifi-

cations. I do not suppose it is proposed as being the perfect

plan. I will hear suggestions for modification, expansion, or

whatever, and then will order it to be put into effect with-

out the participation of the Boston Schoo] Committee, In

other words, the powers of the Boston Schoo] Committee

are being superseded, they are being bypassed in this im-

portant respect. That plan will be ordered into effect by

the Court.

TLe persons to be appointed will be exclusively within

the province of Miss Fahey, and I hope it will not redound

to her disadvantage for me to state on record that the

Court has developed an enormous respect and confidence

in Miss Fahey over the last weeks and months. This is an

excellent plan, and if it can be put into effect, it will help

tremendously at South Boston High School and elsewhere.

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So that is the program with respect to the Department

of School Security Services. We will have a hearing, I will

hear all sorts of objections, and then will come out with an

order, but the gist of the order is what I have stated. There

will be a special assistant to Miss Fahey, as proposed in

this plan, and the School Committee will be enjoined from

interfering with the establishment of this department and

will be ordered to cooperate in that respect.

Similarly, we need action of a like nature with respect

[88] to the Office of Implementation, which has been the

orphan and stepchild of the School Committee in its efforts

to delay implementation of the Court’s plan. The Office

of Implementation has been, despite the best efforts of

good people, well, a failure, in the sense of even approach-

ing its potential. I certainly do not want to tak about the

magnificent work by Mr. Lambert, by Mrs. Byard, and

other members, particular members, aud Mr. Donahue too.

| am not talking about the people. I am talking about the

way it has been throttled by the School Committee, which

has refused to appropriate funds for it, which has refused

to appoint people to it, and on a previous occasion, talking

about the School Committee, | compared the situation to a

legislative body trumpeting its devotion to a particular

cause but denying any funds to the organization that would

carry forth the program proclaimed.

When it comes to action, it is funding and it is staffing

that is required, and in this situation, the Office of Imple-

mentation has, in my opinion — I think the best phrase

is the one that became current a year or so ago — it has

been left slowly twisting in the wind. That is what has

happened to the Office of Implementation here, and that

is going to stop. We are having a similar office, and the

Court will be making orders that that office is to be formu-

lated by Miss Fahey, and it is to be done without participa-

tion by the School Committee, whose course of conduct in

these [89] proceedings is going to be changed.

I need, for the purposes of the record and my finding, to

make some reference to the background of this office and

what it is that I am talking about and why is it that I am

so obviously concerned. At the beginning, as with so many

other aspects of this case, is the plan. The plan provided,

at Page 102, as follows, and I quote: ‘‘The School Depart-

ment shall develop and file on or before May 23, 1975 a

detailed plan of activities, responsibilities, and internal

scheduling for the implementation of the plan ordered by

the Court, the available time period similar to that filed in

Section VII of the plan filed by the School Committee it-

self on January 27.’’ That filing came in, and the copy I

have here, but I believe that the filing that was made pre-

viously was June 6th.

The vehicle for implementing the Court’s plan was sub-

mitted by the School Committee pursuant to court order,

and the document was entitled Implementation Process and

Schedule for Student Desegregation, and the implementa-

tion process described 14 subdivisions, 14 types of agencies

within the School Department which would take action,

and they were given letters, capital letters, for the com-

ponents of this plan, 14 components, Parts B to O.

After an introductory paragraph, it stated at the bottom,

and now we are on Page 14 of the 14 components which

were detailed in this document, ‘‘ All are essential and [90]

interlocking. However, the first component, B, relates to

the actual mechanism for school system implementation

supervision and coordination, and therefore this component

has prime significance.”’

You get to the responsibility for carrying out the plan.

It lists what is called, I quote, ‘‘the chain of command,’’ and

you have first the School Committee; second, the superin-

tendent; and then comes the Office of Implementation, and

it is set out, Director, Implementation Coordinator, Staff,

Assistant for this and that; Assistant for this and that; so

forth; liaison; representative of the schools, and so forth.

That is the importance which the School Committee it-

self attached to this office, and the Court relied on this, to

its regret, because to this day there has net been a perm-

anent appointment to the Office of Implementation. To

this day there has not, despite a number of requests by the

Court, been any funding of that office. Oh, of course, it is

possible for the office to operate in a way; it is possible

for Mr. Donahue to go over to one of his assistant directors,

to go over and take advantage of the generosity of the

superintendent or assistant superintendent in the matter

of supplying pencils and paper and supplies, or to get an

automobile to make an essential trip to some part of the

city, something of that nature, but the course of conduct

of the School Committee has been to reject on more than

one occasion, and [91] the most recent occasion was within

ten days, any move to give that office the permanent ap-

pointments, the salaries, the staffing necessary to have it

do more than go through the motions of implementing the

order of the Court.

Why, people in that office have not been paid for over-

time that they spent at Court order last summer. The only

action taken by the School Committee was to transfer peo-

ple from their other jobs without loss of salary to the Office

of Implementation, and that is the vote I referred to this

morning. It was taken August 20, 1975. This was Mr. Leary.

He has assigned the following named teachers without

change of rank or salary to the Office of Implementation,

subject to the approval of the Schoo] Committee, and that

is the last that has been heard of the School Committee on

that one.

Now, the plan, here is the procedure on that. And let me

say that this office is not going to be buried in the office of

any of the deputy or associate superintendents, the deputy

superintendent or the associate superintendent, but it is

gceing to be established by court order, again, without the

participation of the Boston School Committee at a level

parallel to the level of the Department of School Security

Services, which is incorporated in the November 26th filing

by Mrs. Fahey, and the reorganization plan that was voted

on December 5th, and I will come to more about that in a

minute, will have to be changed in order to create— [92]

perhaps it will be called the Department of Implementation.

One of the difficulties in implementing this desegregation

plan that has sort of grown in my realization with the pas-

sage of the weeks and months is that the Court’s order

has been directed to the School Department, and there

really is no such thing as the School Department. You

know, you look in the telephone book, and you cannot find

anything under the School Department. It,is people. And

the Court, perhaps, mistakenly, relied upon the School Com-

mittee to aid its agents, principaliy Miss Fahey, but a lot

of other people, hundreds of people working with her and

under her, to carry out that plan of implementation, but it

has not been done, and one of the fruits of this policy pur-

sued by School Committee in my opinion has been the situa-

tion down in South Boston High School. It could have been

avoided, and it can be corrected, and will be.

The Office or Department of Implementation is by court

order going to have funds at its disposal, funds with which

to do things, such as to employ statisticians or other types

of— I mention statisticians. There are so many other types

of specialists who are needed to carry out a desegregation

plan. It will have authority to appoint personnel necessary

to carry out the provisions of the plan. I am not talking

now about teachers, | am talking about special persons and

things needed.

[93] Here is the procedural way that we will go about it.

The Court will undertake to formulate and get ont to

counsel a draft order with respect to establishment of an

Office or Department of Implementation. It will be similar

in scope, although— Well, it will be the same general idea,

as far as description, table of organization and description

of the types of persons and their duties and so forth. It

probably will not be quite so good as this Department of

School Security Services, on which we will have the hearing

on Friday, but I will get to counsel as soon as possible, I

would hope by Friday, a draft order establishing or direct-

ing Miss Fahey to establish this Office or Department of

Implementation, and then I will invite the comments of

counsel.

The same procedure will be followed as I did with respect

to racial-ethnic councils. | drafted it, got it out to you

people, got your comments back before it went into effect,

and the same with other things we have done, such as ap-

pointment of the masters. Then after I hear your objec-

tions and after I hear proposals for suggestions, changes,

modifications, then and only then would | promulgate an

order, but I would hope to have a hearing on this subject

midweek next week, perhaps Wednesday or Thursday, the

17th or 18th, and I would hear objections and proposals

with respect to that.

I have mentioned the receivership of South Boston High

School, and I will develop that in a minute. In the [94]

promulgation and establishment by the superintendent of

these two offices, School Security Services and Implemen-

tation, the Court’s orders do strip the School Committee of

some of its powers with respect to the plan. I will state first

that this is being ordered to the minimum extent that the

Court feels is necessary if this desegregation plan is to be

implemented and if there is to be desegregation of the

schools. 1 recognize that in taking this course, I am depart-

ing from the recommendation of the Civil Rights Commis-

sion of the United States, which stated, at Page 64 of its

report:

‘*A partial receivership, for example, for desegregation

matters only, is inadvisable. In such a situation, School

Committee members would remain in a position from which

they could exercise a negative effect on desegregation ef-

forts. For example, School Department staff acting to

facilitate school desegregation would know that their ca-

reers were still in the hands of School Committee members

who oppose desegregation.’’ end of quote.

So there is, as I have said on several occasions, a matter

pending before this Court, which is to put the whole oper-

ation in receivership, but I do not want to do it, obviously,

except, in my view, if absolutely necessary. I think, to the

extent that | have already stated, in these three respects,

receivership of a single school, bypassing the School Com-

mittee in two critical aspects of the [95] implementation of

the plan, the Court has no alternative if this matter is ever

to be resolved. I just do not have the capacity, let alone the

time, to take up the problems in a whole series of schools

which develop and which could be nipped in the bud if the

peope at the top were interested in cooperating, and we will

simply hope that it works.

Now turning to the receivership of South Boston High

School, and the last is to be a freeze on appointments by

the lame duck Schoo] Committee, and I will get to that in a

minute, and they will be specifically enjoined from making

permanent appointments. The next permanent appoint-

ments that are going to be made will be made by the new

School Committee, not by the present one, but that comes

in a minute.

With respect to the receivership of South Boston High

School, I will, of course, file a written order on this. It is

all part of the package. Number one, it will include L Street,

so that it will be a receivership of both G Street and L

Street, meaning basically that that high school will be run

by the Court, not by the School Committee, until further

order. When that order will come, that is, when the receiver-

ship will terminate, I frankly have not thought out as yet,

and I have a number of alternatives in mind.

It may be until the end of the school year, it may be until

some lesser time, but the specifics of this order, and there

will be many specifics, will be filed, | hope and [96] expect,

before the end of the week, but the principal specific of

that order will be as of the end of 1975, the entire full

time academic administrative staff at South Boston High

School will be transferred to some other school. That means

not only Dr. Reid but also all full time assistant head-

masters at both G Street and L Street, that is, those whose

duties are altogether administrative; and also that Coach

Perdigao be transferred from South Boston High School;

provided that none of the personnel at that school whose

transfer will be ordered by the Court shall suffer any loss

in seniority or compensation; and the city defendants,

namely, the members of the School Committee and superin-

tendent, will be ordered to cooperate in placing these per-

sons in positions where they will suffer no loss in compen-

sation.

The next point I will try to make more earnestly and

clearly in my written memorandum on this subject, and I

will endeavor to state it emphatically and clearly. These

transfers will be ordered not because of any racial diserim-

ination which has been performed by any of the people

mentioned. I mean to include all of these persons, and es-

pecially Dr. Reid. The reasons for the transfer are not

that these good people and skillful people have been dis-

criminatory in the performance of their duties. The reason

is that the Court’s plan is not being implemented at South

Boston High School, and the Court intends to carry out its

responsibility to see to it [97] that it is implemented.

That facet of the Court’s ruling, lest it do an injustice

to the people who will be transferred, I will elaborate on

when I file the writing. It is a question of where the re-

sponsibility lies, and if the situation is in many respects

deficient, the burden of responsibility must be shifted.

This receivership, incidentally, although there will be

a confirmatory written order, will commence tomorrow,

namely, the 10th of December. The city defendants, that is,

the School Committee and the superintendent and the

mayor, and the state defendants, the Board of Education,

are ordered to cooperate with the receiver and to enable

him to carry out the orders of the Court. The receiver,

whom the Court will name in the order, is District Superin-

tendent Joseph McDonough. I will be in touch with Mr.

McDonough directly. I saw him, I might say parenthetic-

ally, not about a receivership, mind you, but I saw him and

discussed some matters with him on my way back from

South Boston High School on my second trip to the school

last week.

Finally, the freeze, or what I call the moratorium on

permanent appointments. This order is effective now, and

it is an injunction. The members of the School Committee

and their attorneys, agents, and employees are enjoined

individually and collectively from appointing or installing,

whether by transfer or by new appointment, any perm-

anent [98] appointment at the level of those positions

covered by the promotional rating system or to positions

shown in the superintendent’s reorganization plan ap-

proved by vote of the School Committee on December 3,

1975.

This morning Mr. Tierney stated that he thought that

there might be a meeting of the School Committee tomor-

row, Please be sure, Mr. Tierney— or, in order that the

i ee 2

record may be proper, I direct you to advise your clients

School Committee members of this injunction, which is ef-

fective now, although it will be put into written form as

soon as possible, and I expect before the end of the week,

their power is taken away from them not only with respect

to South Boston High School and not only with respect

to the establishment of the Office of Implementation or

Department of Implementation and Department of School

Security Services, but also with respect to their making

permanent appointments between now and the end of their

tenure as members of the Boston School Committee.

This injunction expires on January 6, 1976. It does not

apply to persons who will be— the people with whom I will

be deziing in endeavoring to have the Court’s desegregation

plan carried out.

The bases for the Court’s order that there be a mora-

torium on permanent appointments are as folows: It is

important, in my view, that the provisions of the plan [99]

which provide for specific community input into the selec-

tion of persons for permanent appointments be carried out

with respect to appointees to both positions covered in the

promotional rating systems and positions in the plan of

the superintendent which was approved on the 3rd of

December. I am not talking about campaigns before neigh-

borhood groups. I am not talking about procedures which

would overrule the discretion of Superintendent Fahey in

these matters. I am talking about an opportunity to get to

her for such consideration as she wishes to give it the ap-

praisal of prospective appointees to these positions.

A second reason is that the Court’s orders with respect

to the Office of Implementation and the Department of

School Security Services will probably call for certain

revisions in the table of organization, which was approved

by the School Committee by vote of December 3rd.

Permit me a brief diversion to say that this moratorium

and injunction against the School Committee members has

no reference to the establishment of a Department of

School Security Services or Department of Implementation,

because in those instances, the School Committee is out of

it. Those appointments are going to be made by Miss Fahey

in her discretion, but with respect to appointments other

than those, as to which the School Committee will have full

powers, such appointments are enjoined until the new

School Committee comes [100] into office.

Some of these acting administrators have been acting

for years and years, and there is no reason for precipitous

or hasty action by a lame duck School Committee to place

into critical positions persons who they perhaps feel are

committed to their outloook and viewpoint on a desegrega-

tion plan involving forced busing, which chances to be dia-

metrically opposed to the Court’s. Appointments to posi-

tions of principal, or, as we now call it, building admini-

strator, and these staff positions are absolutely crucial to

the implementation of the Court’s plan.

There is much more to a desegregation plan than just

bringing the students into a school. What goes on inside the

school is as important as what goes on in transporting the

pupils to and from school. There is a two-volume compila-

tion recently published on ‘‘The Courts, Social Science,

and School Desegregation,’’ and one of the articles is

entitled, How to make Desegregation Work: The Adapta-

tion of Schools to Their Newly Integrated Student Bodies,’’

written by Gary Orfield, O-r-f-i-e-l-d, of the Brookings In-

stitution, and I want to quote one small paragraph, be-

cause I think it is so important here, on what he calls the

central role of the principal, and I quote:

‘‘Report after report on desegregated schools mentions

the central role the principal plays in determining the [101]

school’s response to the desegregation crisis. While in

normal circumstances the principal’s role may be ambig-

uous, his authority limited, and his job largely routine,

when schools are suddenly reconstituted with substantial

numbers of new students and faculty members from racial

and ethnic groups not previously represented, the principal

often becomes an extremely important figure. He must

control and manage the early conflicts and tensions, build

positive morale, strengthen school-community relation-

ships, and help teachers work out better educational re-

ponses.”’

There is much more here, including the quote about a

successful desegregation due primarily to the principal’s

attitude of acceptance and his leadership skill. The last one

is taken from a book by Charles Willie, Dr. Willie, one of

the court masters, who wrote a book on this subject en-

titled ‘‘Race Mixing in the Public Schools,’’ in 1973, one of

the reasons for the Court’s feeling that he might be a

valuable member of the panel of masters.

So that this moratorium on permanent appointments by

this outgoing School Committee is based upon the need, in

the Court’s opinion at least, to protect the desegregation

plan from being frustrated and defeated by the lame duck

School Committee, whose majority, and I want to empha-

size that word majority; I do not speak of all of the mem-

bers, I speak of the majority of those members who have

done at least [102] everything, in my opinion, that they

could lawfully do to delay implementation of this desegre-

gation plan. Why? Because it invoves forced busing.

I have in mind the written responses, again, of a major-

ity of the members of the School Committee that is out-

going. One of them is quoted here in the appendix to the

opinion in the plan, wherein the School Committee mem-

ber stated, and there were two others substantially to the

same effect, that he would do nothing to ‘‘supplement the

plan.’? This is Mr. Kerrigan: ‘‘I will obey and carry out

all lawful orders of the Court, but I will take no initiative

or affirmative action to advocate or suppement any such

plan.’’

Well, that is precisely what the law of the United States

requires that the school committee man do and that the

school officias do, including the principals and headmas-

ters and the assistant headmasters, to take affirmative

action. So the majority of the School Committee set its sails

against implementation of this plan a long time ago, and

the Court will not stand by and permit a hurried and un-

necessarily ‘hurried selection and appointment of persons

to key roles, They are the keys. The new appointeees to

these crucial and critical positions must be responsible to

the new committee, which will be responsible to the Court.

Otherwise the [103] plan could well be shackled by thse

indirect activities of the persons who have directly done

what they could to shackle it. I refer again to the majority,

not to all the members, the majority.

So that is an injunction, and that will be in writing. It

will be served on them personally. And you, Mr. Tierney,

as an officer of the court, are directed to advise them orally,

so that there are no mistakes, at tomorrow’s meeting. Have

you any questions about the purport of this last injune-

tion?

Mr. Tierney: Yes, sir.

The Court: Well, I would appreciate your putting

them so that I could clarify anything.

Mr. Tierney: I am, first of all, informed, sir, that there

is not a meeting tomorrow, there is a meeting Thursday at

two o’clock.

The Court: It does not matter when it is. It could

be any time, They can do all sorts of things, but not make

permanent appointments to these critical positions.

Mr. Tierney: I wish to clarify my understanding that

the appointments that are enjoined are those appoint-

ments to any positions covered by the promotional rating

system or shown in the superintendent’s reorganization

plan.

The Court: Both. In other words, there is a [104]

difference,

Mr. Tierney: And.

The Court: Yes. Both. And.

Mr. Tierney: Yes, sir.

The Court : Now here it is, ten minutes of four.

Mr. Tierney: Is your Honor finished?

The Court: Well, | was just— Well, I will not leave

without giving you a chance to say whatever you wish.

There we were, talking about the promotional rating system.

Let me please confer a minute with Mr. Flaherty. He may

remind me of things I intended to say but have not.

(The Court conferred with Mr. Flaherty.)

The Court: Yes. That does conclude the Court’s find-

ings and orders on that motion. Now let me hear what you

wish to say.

Mr. Tierney: Your Honor, I will not attempt to object

to everything the Court has stated. I believe the Court is

aware of the position of my clients in this matter. I only

would enter, with the Court’s permission, and note for the

record the objection of the Boston School Committee to

the Court’s actions as encompassed by the Court’s state-

ment this afternoon.

| would note that the Court’s obligation in the view of my

client is to create a unitary school system, [105] That has

been done, and it is our position that the Court’s job has

likewise finished with respect to desegregation. I note that

respectfully, your Honor, and I would further request that

we be given the opportunity to have the Court’s orders in

writing as soon as possible. Thank you.

The Court: It is a good request. Yes, Miss Lynch.

Miss Lynch: Your Honor, on behalf of my clients, |

would like to suggest a slight extension of one of the orders

made by the Court. The Court has imposed a moratorium

on all permanent appointments. Before the Court currently

is a reorganization plan which was submitted by the super-

intendent and has been approved by the School Committee.

It had been my understanding that counsel would be given

the opportunity to comment on the provisions of that plan

before it received court approval.

The terms of the court order as it stands right now do

not prevent the School Committee from making acting ap-

pointments in accordance with that reorganization plan.

For instance, one area in which I am particularly concerned

is the provisions of the plan regarding vocational educa-

tion. For instance, the reorganization plan would give to

the assistant superintendent in that area four associates.

Those are new positions. They could be [106] filled on an

acting basis, and that, in effect, would lead to a further

fragmentation, we believe, of the vocetional management

system.

Therefore, I think until the parties have had an op-

portunity to comment on that plan, it would not be ap-

propriate for the School Committee to make even acting

appointments based on that reorganization chart. I would

ask the Court te modify its order to take care of it.

The Court: Does anyone want to be heard on that?

Yes, Mr. Tierney.

Mr. Tierney: I would simply note my objection.

The Court: Well—

Mrs. Sticklor: Your Honor—

The Court: I will get to you in just a moment. Let me

get back to Miss Lynch.

| am looking at the table. Where does that appear? Are

you talking about the vocational education plan?

Miss Lynch: No, it is not the vocational education plan.

It is the associate—

The Court: There are five associates and one deputy.

Miss Lynch: It is the Associate Superintendent for

Instruction. I believe the plan calls for her to have assis-

tants in the area of basic education, general education,

alternative education, instructional resources, and [107]

some help in the area of career education. My clients do

object to that structure even on an acting basis.

Mr. Van Loon: Your Honor? .

The Court: Yes. Oh, no, | am sorry. Mrs. Sticklor was

up first. :

Mrs. Sticklor: Your Honor, the defendant mayor sup-

ports the suggestion of Board of Education that the injunc-

tion imposed by your Honor be extended to include acting

positions until the New School Committee is in effect. We

note briefly three pooints as the basis for our support.

It is our understanding also that the reorganization plan

would be appropriate for comment by the parties as to the

various aspects. It is our understanding that there would

be some matter that would be considered by the Court.

Secondly, it has been the experience of the Boston public

schools, insofar as individuals have been appointed to

positions on an acting basis, that such appointments create

difficulties in changing the individuals filling those posi-

tions on a permanent basis, ana the Court now has before

it the question of appointment of permanent administrators,

which would be resolved by the Court at the same time. We

feel that appointing individuals on an acting basis in the

interim would [108] create further difficulties.

Lastly, your Honor, we feel that the position of the

people of Boston insofar as the Schol Committee will—

members of the Schoo] Committee will be changed effective

January 5th, when the School Committee is now in a lame

duck situation, that the will of the people would best be

served by a moratorium on acting appointments as well

until the new School Committee is constituted.

The Court: | wish I knew what the scope of this is.

That is my problem.

Well, let me hear from Mr. Van Loon.

Mr. Van Loon: Your Honor, we rise to vigorously

support also the position of the state board and the mayor

in proposing that none of these appointments be made

even on an acting basis for what is, in effect, a brief, three-

week period which includes the traditional winter holidays,

when less activity goes on. We believe that in addition to all

the other points that have been made, if appointments are

to be made for a number of these positions on a permanent

basis in the system, to be worked out by Mr. Kennedy,

through the next couple of months, appointing a number

of people on an acting basis lame duck right now may fur-

ther simply gum up the rating system as to who has what

experience as far as making more permanent appointments.

[109] We believe rather than having that possibly done

now tor three weeks and then other acting changes made

for these positions during the next four months so that we

can have a permanent position starting July 1, that it

simply makes sense to wait until we have the new commit-

tee in place to make acting appointments.

The Court: Well, if I understood the ramifications of it,

it would be easier.

Let me ask Mr. Tierney. Try to say something con-

structive. 1 know you object, but I mean, what is at stake

here? If there is some important acting appointment that

should be made, I cannot see that I should say it could

not. I just do not understand, as I say, the ramifications of

it.

Mr. Tierney: One of the ramifications, your Honor, is

the fact that Associate Superintendent Leftwich needs as-

sistant—he needs personnel assistance to help him in im-

plementing the vocational plan, That is just what we con-

ferred about, and he informs me that in some fashion, there

should not be issued an injunction that would encompass his

being able to obtain the assignment of personnel to work

with him on the vocational plan.

The Court: But isn’t this exactly what they did for

months and months and months on the Office of [110] Im-

plementation? They just never put anybody down there ex-

cept on a temporary assignment basis.

Mr. Tierney: On the contrary, your Honor. I hesitated

to go into that when I spoke, but the fact of the matter is

that after Superintendent Leary, at the suggestion of Miss

Fahey, brought these names to the Committee’s attention,

the committee voted them into office until September Ist,

when Miss Fahey took over. | am informed that when Miss

Fahey took over, the committee again voted these people in.

The Court: No, they did not vote them in anything.

What they did was transfer therm to that office as teachers

on loan.

Mr. Tierney: It had to be that way, your Honor—

The Court: It did not.

Mr. Tierney: —because the office did not exist. I lik-

ened it to the existence of a corporation.

The Court: Well, it will exist before the month is out

if I have anything to say about it.

Mr, Tierney: Well, I only brought that point up about

Mr. Leftwich’s needs, your Honor.

The Court: Yes, Mr. McMahon.

Mr. McMahon: Your Honor, may | ask a question as

to your order concerning the receivership at South Boston

High School?

[111] The Court: Of course.

Mr. MeMahon: That question is in terms of the person-

nel ordered to be transferred.

The Court: Correct.

Mr. McMahon: Do I understand your Honor to state

assistant headmasters in subject areas and department

heads will be transferred?

The Court: No. Only those persons— I tried to be care-

ful. I said the persons who are on the full time academic

administrative staff. Teacher-assistant headmasters do not

come within that definition.

Mr. MeMahon: Well, your Honor, I believe—

The Court: They are not full time administrators. They

are part time teachers and part time administrators, and

therefore they are excluded.

The receiver, | might say, is going to be directed to

review the entire faculty and staff at that school and to

recommend to the Court any transfers that he thinks

should be made in the best interests of that school and of

the implementation of the plan. That is something that I

did not touch upon.

Mr, MeMahon: Your Honor, that may be clear, but per-

sons who are in the job title of assistant headmaster (sub-

ject area) are not subject to the transfer order. Some are

full time administrators.

[112] The Court: Then they must go, and here is what

I have in mind specifically. When the school was overcrowd-

ed and was on double sessions, there was assistant head-

masters who were teaching, but because of the double ses-

sion feature and because of the need for additional full

time administrators, they were relieved of their teaching

assignments, and to this day do not teach. Those are in-

cluded in the group of persons whose transfer is mandated.

Mr. MeMahon: On their behalf, may I enter my objec-

tion?

The Court: Positively.

Mr. Coleman: Your Honor, one brief question and

clarification. When you stated the end of 1975 for transfers,

you were referring to the calendar year rather than the

school year.

The Court : Correct.

Yes, Mr. Portnoy.

Mr. Portnoy: Your Honor, I apologize for being here

late. Unfortunately the Clerk’s Office did not notify me of

this hearing. I would just like to clarify some information

I have received since I have been here.

The Court: Right.

Mr. Portnoy: As I understand it, you have entered an

order of no finding against ali three of my clients.

[113] The Court: No, not quite. As to Mr. Bilotas, the

matter was dismissed and withdrawn with respect to him.

With respect to Mr. Sealese and Mr. Perdigao, I have en-

tered no findings with respect to them, with the one ex-

ception of a set of findings against Mr. Perdigao, finding

that he did not carry out the plan which required that

he take affirmative action to desegregate the football

team, and further directing that he and others at the high

school be transferred to a different school at no loss in

salary.

Mr. Portnoy: Thank you, your Honor. Will this be a

written order?

The Court: Yes.

I want to get back to this acting matter. How many po-

sitions are we talking about? Do you know, Mr. Van Loon?

Mr. Van Loon: No, I do not, your Honor, but I believe

that one indication would be to look at the impounded De-

partment of School Security Services. There is a central

organization chart toward the back of that which lists—

The Court: But that has to do with the Department of

School Security Services, and Miss Fahey is going to make

those appointments, and the School Committee has been and

is again enjoined from interfering with her in [114] that

regard.

Mr. Van Loon: I am saying, your Honor, that immed-

iately preceding Page 36 of that plan is an organization

chart of the whole School Department, with district super-

intendents and others, and I believe that some indication of

the number of positions is given there listed under the

names of each of the associate superintendents.

The Court: All right. Here is the Court’s order on this

whole matter. With respect to the injunction against the

School Committee making permanent appointments and

imposing a moratorium until after the new School Com-

mittee takes office, it is expanded as follows:

With regard to appointment on an acting basis, those

appointments are also enjoined unless with court approval.

By this I do not mean approval of the names, but rather ap-

proval of the positions to which appointed. The first ap-

proval of such an exception to the injunction is the appoint-

ment of such persons on an acting basis as Miss Fahey

considers Mr. Leftwich needs in carrying out the respon-

sibility that he is now discharging with regard to formula-

tion and implementation of the unified plan for vocational

education and occupational education. The Court will,

if Mr. Tierney wishes, similarly exempt from any prohibi-

tion against acting appointments a whole [115] shopping

list of such positions if there is any basis for acting ap-

pointments.

By way of illustration, | consider that the brief comment

that he made is a proper basis for having Mr. Leftwich

go forward with acting appointments in the area just de-

scribed. What the court intends here with respect to acting

appointments is to avoid the situation alluded to by Mrs.

Sticklor and Miss Lynch and Mr. Van Loon. If there is

a need for an acting appointment, by all means, one or sev-

eral will be permitted, but there has to be some showing of

need, not simply a matter of putting people into a position

simply because they will thereby gain an advantage over

the competition when the new School Committee comes in.

Well, that concludes this aspect of the hearing. It has

lasted longer than I thought. I think that, subject to hear-

ing from you, I might continue the other matter to the next

hearing, but maybe someone has some particular points.

There is a variety of motions in other regards pending, like

attorneys’ fees and a lot of other things.

What do you have?

Miss Lynch: As to the security plan hearing which is

scheduled for Friday, at the current moment the security

plan is impounded.

Unrrep Srartes District Court

District or MASSACHUSETTS

Civil Action No. 72-911-G

TaLLUuLAH Morcan, ET AL.,

PLAINTIFFS,

Joun J. Kerrican, ET AL.,

DEFENDANTS

ORDER SUSPENDING APPOINTIVE POWER

OF SCHOOL COMMITTEE

December 9, 1975

Garrity, J. An order of the court providing for a four-

week moratorium beginning December 10, 1975 on appoint-

ments by the current school committee which concludes its

term of office on January 5, 1976 issued from the bench

on December 9, 1975, on the basis of findings of fact and

conclusions of law dictated to the court reporter; and is

hereby confirmed. It is OrpErep that

The defendant Boston School Committee and its agents,

attorneys, employees and assigns are enjoined, individu-

ally and collectively, from making any permanent, acting

or temporary appointments, including appointments by

transfer: (1) to any school department position specified

in Superintendent Fahey’s September 15, 1975 or October

14, 1975 ‘‘Proposed Central Organization of the Boston

Public Schools,’’ filed with the court on November 5, 1975,

or in Superintendent Fahey’s September 3, 1975 or October

14, 1975 organization plans as approved by the vote of the

school committee on December 3, 1975; or (2) to any school

department position which is subject to the procedures out-

lined in the February 5, 1973 document, ‘‘A Proposal for

a Promotional Rating System,’’ filed with the court on

September 27, 1974 by the city defendants or as updated

on November 3, 1975; provided, however, that acting ap-

pointments to particular positions may be made subject

to prior court approval.*

The defendant school committee’s request for acting ap-

pointments to fill positions to assist Associate Superinten-

dent Charles W. Leftwich in implementing the Unified Plan

for Occupational and Vocationa) Education is granted.

This order shall expire on January 6, 1976.

(s) W. Arrnur Garrity, Jr.

United States District Judge

* Prior court approval pertains to the filling of a particular

position, without any requirement that the identity of the prospec-

tive appointee be disclosed.

Unrrep Srates District Courr

District or MAssACHUSETTS

Civil Action No. 72-911-G

TaLLuLAH Morcan, ET AL.,

PLAINTIFFS,

Joun J. Kerrigan, ET AL,

DEFENDANTS

ORDER CONCERNING

SOUTH BOSTON HIGH SCHOOL

December 9, 1975

Garrity, J. After hearing plaintiffs’ motion for further

relief concerning South Boston High School and upon

consideration of the arguments of counsel, on the basis of

findings of fact and conclusions of law dictated to the court

reporter on December 9, 1975 and later supplementary

findings and conclusions on plaintiff’s motion, it is hereby

OrpERED, by way of written confirmation of orders issued

from the bench on December 9, 1975, that South Boston

High School (both main building and L Street Annex) be

placed in temporary receivership of the court effective

December 10, 1975 and that Joseph M. McDonough, Assist-

ant Superintendent for Community District 6, be appointed

temporary receiver of South Boston High School. The lim-

ited, general purpose of said receivership is to accomplish

as soon as feasible such changes in the administration and

operation of South Boston High School as are necessary to

bring the school into compliance with the student desegre-

gation plan dated May 10, 1975 and all other remedial

orders entered by the court in these proceedings, e.g., de-

segregation of faculty and staff.

It is further Orperep that:

(1) The temporary receiver and the defendant superin-

terent of schools together arrange for the transfer from

South Boston High School to other positions in the Boston

public school system effective on the first school day in

January 1976, without reduction in compensation, benefits

or seniority, of the building administrator, full-time aca-

demic administrators who do not presently instruct classes

and coach Arthur Perdigao; and arrange for the appoint-

ment, subject to prior court approval, of a new building

administrator and administrative staff, which shall be de-

segregated; the new building administrator shall assume

office on January 2, 1976 and shall participate with the

temporary receiver and the superintendent in the selection

of the new administrative staff.

(2) The temporary receiver, in consultation with the

new building administrator, (a) review and evaluate the

qualifications and performance of all faculty, guidance

and other educational personnel in the light of the special

demands and strains on such persons in the days ahead at

South Boston High School and arrange with the superin-

tendent of schools, who is hereby ordered to cooperate, for

the transfer from South Boston High School to other

positions in the Boston public school system, without re-

duction in compensation, benefits or seniority, such per-

sons as he may determine; and arrange with the superin-

tendent of schools, who is hereby ordered to cooperate, for

their replacement with newly hired teachers or transfers

from other high schools; (b) file with the court on or be-

fore February 2, 1976 a plan and chronology for the sub-

stantial renovation of South Boston High School including

the cafeteria and kitchen, gymnasia and equipment, music

and art departments and facilities for business office ed-

ueation, automotive mechanics and sheet metal shops; and

High School who have not been discharged to attend other

schools and establish separate catch-up classes for re-

turning students including a summer school if necessary.

(3) The temporary receiver consider the following ques-

tions and subjects and report his recommendations on them

to the court: (a) a schedule for reducing the numbers of

uniformed police inside the school, (b) regarding transi-

tional aides, reducing their numbers, providing for equal

numbers of white and black aides, employing two or more

other-minority aides and obtaining uniforms for aides, (c)

activation and development of Racial Ethnic Parents’ and

Students’ Councils, (d) Thompson’s Island Academy pro-

gram proposal and (e) joint meetings with representatives

of paired university and businesses, viz., the University

of Massachusetts, Gillette Company Safety Razor Division

and Federal Reserve Bank.

(4) All parties and intervenors in these proceedings,

their agents, attorneys and employees, cooperate with the

temporary receiver in the performance of his duties; and

that the defendant Boston School Committee reimburse

Mr. McDonough for all reasonable expenses incurred by

him in his capacity as temporary receiver whether or not

he would be entitled to reimbursement in his capacity as

district superintendent of Community District 6.

(s) W. Artnuur Garrity, Jr.

United States District Judge

Unirep Staves District Court

District oF MassaCHUSETTS

| Title Omitted In Printing]

MOTION TO STAY ORDERS OF

DECEMBER 9, 1975

The defendant, the School Committee of the City of

Boston, moves that implementation of the following orders

entered on December 9, 1975, be stayed pending appeal:

1. That the Schoe! Committee of the City of Boston be

enjoined from making appointments to vacancies which

exist in the School Department.

2. That a receiver be appointed to take over the opera-

tions of South Boston High School and the ‘‘L’’ Annex.

3. That the headmaster, assistant headmaster, football

coach, department heads and other administrators be trans-

ferred from South Boston High School and the ‘‘L’’ Street

Annex.

4. That the Superintendent oversee the operations of

the Office of Implementation and the Department of School

Security Services without interference by the School Com-

mittee.

In support of this motion, the School Committee states

that the actions of the District Court are without precedence

and should not be implemented without allowing the School

Committee an opportunity for hearing on appeal.

By its attorneys,

DiMENTO & SULLIVAN

(s) James J. Suuuivan, JR.

James J. Sullivan, Jr.

100 State Street

Boston, Massachusetts 02109

(617) 523-5253

December, 10, 1975

Unrtep States Court or APPEALS

FOR THE First Circuit

No. ;

TALLULAH Morean, ET AL.,

PLAINTIFFS,

Joun J. Kerrican, ET AL.,

DEFENDANTS.

MOTION FOR A STAY

The School Committee of the City of Boston moves for

a stay of implementation of the following orders of the

District Court entered on December 9, 1975, pending ap-

peal, to wit:

A. That the School Committee of the City of Boston

be enjoined from making appointments to vacancies which

exist in the School Department.

B. That a receiver be appointed to take over the opera-

tions of South Boston High School and the ‘‘L’’ Street

Annex.

C. That the headmaster, assistant headmaster, football

coach, department heads and other administrators be trans-

ferred from Souv.th Boston High School and the ‘‘L’’ Street

Annex.

D. That the Superintendent oversee the operations of

the Office of Implementation and the Department of School

Security Services without interference by the School Com-

mittee.

In support of this motion, the School Committee states :

1. It has moved in the District Court for a stay of said

orders. It is expected that this stay will be denied because

of the time constrictions which affect the order.

2. Failure to stay the District Court’s order relative to

the power to make appointments will make the order moot

by the time an appeal is heard. The term of office of the

present School Committee, which is an elected body, ex-

pires on January 6, 1976. On that date, two of the present

five members will be replaced. If the stay is not granted,

the present School Committee will suffer irreparable harm

because it will have been deprived of its right to continue

in office for a full term. In effect, the District Court has

limited their term of office. Every day that passes without

a stay is a prior restraint upon the Schoo] Committee’s

plenary power.

3. Failure to stay the District Court’s order relative to

South Boston High School and ‘‘L’’ Street Annex will ir-

reparably harm the School Committee. It will have lost its

day-to-day control over the fiscal operations of these

schools and the power to decide what education will be

offered. There is no power in the District Court to require

the whole scale transfer of administrative staffs and the

imposition of a receiver to perform the functions of duly

elected officials. Counsel can find no case where a receiver

has been appointed to perform the functions of elected of-

ficials. If no stay is granted, the citizens of Boston will have

lost their local control over the operation of these schools

and will have no way to redress any grievence relative to the

operation of these schools.

4. Failure to stay the District Court’s order relative to

the grant to the Superintendent of the powers of the School

Committee will irreparably harm the School Committee. The

power of overseeing the operation of the School Depart-

ment vests in the School Committee. If the Superintendent

exercises these powers, then the powers of the duly elected

School Committee will have been compromised. The elec-

torate will have lost its control over the day-to-day activities

and funding of these operations.

5. These orders are unique in American jurisprudence.

The first order has established precedence for the termina-

tion of ‘‘lame duck’’ appointments. The District Courts,

by using their equity powers, can usurp the powers of

elected officials, including the President, to appoint per-

sons after those elected officials have been defeated in a

bid for re-election, In effect, the District Court is exercising

the executive function. The second, third and fourth orders

remove from elected officials their traditional and statutory

powers and put them into the hands of appointed officials.

This will establish precedence for the District Courts con-

trolling the operations of the legislative branch of govern-

ment. These novel orders, intruding upon the powers of the

legislative and executive branches of government, should

be stayed until the appeal is heard.

6. Notice of appeal relative to these orders has been

filed in the District Court.

By their attorneys,

DiMENTO & SULLIVAN

(s) James J. SuLLIVAN, Jr.

James J. Sullivan, Jr.

100 State Street

Boston, Massachusetts 02109

(617) 523-5253

December 10, 1975

STENOGRAPHIC TRANSCRIPT GF PROCEDURES

[1] Unsrrep States District Court

District oF MAssacHUSETTS

Civil Action No. 72-911-G

TaLLuLAH Morcan, ET AL.,

PLAINTIFFS,

Joun Kerrican, ET AL.,

DEFENDANTS.

Before: Hon. W. Artuvr Garrity, JR.,

District Judge.

Court Room No. 1

Federal Building

Boston, Massachusetts

December 15, 1975

Appearances:

Robert Pressman, Esq., and

Eric E. Van Loon, Esq.,

for the plaintiffs.

James J. Sullivan, Esq., and

Philip T. Tierney, Esq.,

for the defendants School Committee

Sandra L. Lynch, Esq.,

Counsel, Board of Education, and

Timothy J. W. Wise, Esq.,

Assistant Attorney General,

for the defendants State Board of Education

Marilyn L. Sticklor, Attorney,

Assistant Corporation Counsel,

for non School Committee city defendants.

John F. MeMahon, Esq.,

for the Boston Teachers Union.

Richard W. Coleman, Esq.,

for the Boston Association of Schoo! Administrators

and Supervisors, AFL-CIO.

Pamela Taylor, Attorney,

for El Comite de Padres.

[2] PROCEEDINGS

The Clerk: Civil Action 72-911-G, Tallulah Morgan

versus John Kerrigan et al.

The Court: | received the court orders, transcript

of the court orders, that were dictated on the afternoon of

December 9th, and have here the motion of the plaintiff

to stay the orders entered then. I also brought up the

opinion of the Court of Appeals when they considered ap-

plications for stay on a different motion back in June, June

17th, because I think the principle stated would be >Ipful,

and I want to state preliminary view of this matter im just

one minute.

Before doing so, | want to acknowledge Mr. McLaugh-

lin’s presence here.

' Mr. McLaughlin: Yes, your Honor.

The Court: I received a letter from Miss Fahey, Mr.

McLaughlin. I don’t know that I received an appearance

letter or slip from you or your firm.

Mr. McLaughlin: An appearance slip was filed, your

Honor, along with that letter.

The Court: Thank you.

Now with respect to this motion, I consider that Para-

graphs 1, 2, and 3 are final orders of the type that are ap-

pealable, but Paragraph 4, which is the one about the

superintendent making appointments independently of the

[3] School Committee to the Office of Implementation and

Department of School Security Services I think of as being

interlocutory and not appealable. The reason is that the

order with respect to these is still in process of litigation

here at this level. The parties will not be heard until Wed-

nesday on their proposals and counterproposals with re-

spect to the plan for a Department of School Security Serv-

ices, and the draft order on the Office of Implementation

is one that still has not been filed by me. | have put it

aside while working on these findings of fact and conclu-

sions of law that I thought would be filed on Friday. I

thought they would be filed today, when I did not file them

on Friday. I hope they will be filed today, but it may not be

until tomorrow when they are filed, so that for those rea-

sous, I do not plan to hear argument addressed to Para-

graph 4, principally because I think the orders covered by

that paragraph are interlocutory in nature.

I will now hear arguments as to the other paragraphs,

and would start off with counsel for the Schoo] Committee.

Mr. Sullivan.

Mr. Sullivan: May it please the Court. Your Honor, my

arguments are directed first of all to the scope of your

order and secondly to your authority under the law to have

entered those orders. Counsel for the Schoo] Committee on

two separate occasions had submitted memoranda or briefs

on [4] this question, on the issue of your authority and our

questioning that authority. The first was filed on September

26, 1975. That was a memorandum of the Boston School

Committee relative to the recommendations of the Civil

Rights Commission. The other was filed on October 10, 1975,

and that was a rebuttal brief of the Boston School Com-

mittee.

The citations and the arguments have already been pre-

sented to you. These questions, questions involving your

orders of the ninth of December and as finalized last Fri-

day, are of serious and novel nature. We feel that it is

imperative that an appellate court review those orders be-

cause of their uniqueness, because of the breadth of their

scope. Time is of particular essence, as | am sure your

Honor appreciates.

As I stated last Friday, we are having a footrace here

with mootness. The present school committee goes out of

office on January sixth. If we do not have our day in

appellate court, many of these issues, if not all of them, will

be mooted. The force of your orders has the effect of bob-

tailing the term of office of elected officials. As of the

date of your orders, they cease in very large areas to ex-

ercise the authority for which they were elected. You have

teken from their administration the overseeing of the

South Boston High School. You have enjoined them from

making the appointments which they have statutory auth-

ority to make.

[5] You have entered into the area of local autonomy,

long recognized in this commonwealth and elsewhere for

elected school officials to administer the affairs of the

schools. We feel that you have done so without sufficient

basis. We feel that there is no precedent in law for what

you have done. We feel that you, in this vital period, where

we are faced with mootness around the corner, should not

be the reviewer of your own acts, certainly in this area.

These orders have tremendous impact, as we all ap-

preciate. The School Committee is stripped of its powers.

A federal district court has entered into the area of school-

mastering, to the extent that you through your agents are

administering the South Boston High School. We object to

this procedure. We feel that it is constitutionally defective,

and we plead for an opportunity to have these orders

reviewed by a circuit court, and that such be done within

a reasonable time, which reasonable time ‘s now.

The Court: Well, let me ask a question, because I think

it is material. Suppose the stay should be granted with

respect to the appointments. It would seem to me — and

I want you to correct me if I am mistaken — that the grant-

ing of a stay would simply open the way for the School

Committee to make the very appointments which the Court

has ruled should not be made. In other words, I see no dif-

ference between a stay and the merits in these matters.

Hither the School [6] Committee is going to be free to

make these appointments or not. If there is a stay of the

order-granted, I see nothing to prevent the School Com-

mittee tomorrow from convening and making the appoint-

ments without the Court having entered the order on the

desegregation of administrators or without the Court

having reviewed and the parties having had a chance to

talk in terms of the reorganization which was voted on the

third of December, and so forth.

Do you distinguish between the stay and the merits here?

I have difficulty doing so.

Mr. Sullivan: Well, it is very difficult to do so, your

Honor, but the question of your authority in this area is

so fundamental that it calls for an immediate review by a

court higher than you are.

The Court: I agree completely. Don’t have any mis-

understanding. I have not in any remotest way nor will I in

any way delay the processing of this appeal. It should go

forward just as quickly as possible. I asked Mrs. Fitzhugh,

of course, to expedite this, and we have it, and the papers,

I assume, will be given to the Court of Appeals just as soon

as possible, but to me, to grant the stay would moot the ap-

peal. You say to keep it in effect would moot the appeal.

Mr. Sullivan: Yes.

The Court: | have a different view. What is wrong

with my view that to grant the stay would open up the ap-

pointive {7] power and render the appeal moot?

Mr. Sullivan: Well, there may be other avenues of

testing those appointments, but this has been a tradi-

tional power of the School Committee, and you are chang-

ing it. Your are changing their appointive authority, and

therefore the urgency is more in the direction of their re-

view and a stay from what you are suggesting.

The Court: Well, I did want your answer on that ques-

tion.

Mr. Sullivan: Well, that is my answer.

The Court: Right. Well, does anyone else— I think

Mr. Sullivan has finished. Mr. Pressman, are you going

to speak for the plaintiffs?

Mr. Pressman: Yes, I am, your Honor. Could I in-

quire if there are any other arguments in support of a

stay so all of those could come first?

The Court: Yes. I think that is a good idea. Yes, Mr.

McMahon.

Mr. MeMahon: | would only indicate, your Honor, that

we would support Paragraphs 2 and 3 of the School Com-

mittee ’s motion.

The Court: Well, let me ask you, then, this question—

it bothers me — that | asked of Mr. Sullivan. Stay, of

course, does not here mean delay or impede in any way.

The common ground is that the appeal will go forward as

quickly [8] as possible. The question is, What is the status

to be while the appeal is being processed? Are the orders

that the Court entered to go into effect, or are they to be

suspended or to be put in abeyance? Mr. Sullivan indi-

cates that denial of the motion will moot the appeal. A

premise, I think, of his argument is that the appeal could

not be decided on the merits between now and the first of

January, because the School Committee goes out of office

on the fifth.

Well, it seems to-me that if one assumes that the

appeal couid be decided on the merits before the first of

January, then the rights of the School Committee could be

preserved and there would not be mootness. Conversely,

it would seem to me that if the Court suspended its orders,

then the appointments could be made, and that would have

the effect of mooting the case in the other direction.

Mr. MeMahon: Your Honor, I would agree with your

analysis as to Paragraph 1 of the School Committee’s mo-

tion. My support is of only Paragraphs 2 and 3.

The Court: I see. Well, let me ask you a question,

then about Paragraphs 2 and 3. Is there not, with respect

at least to the transfers, a built-in stay, in the sense that

the order does not call for the transfers to become effec-

tive until the second of January, in any event?

Mr. MeMahon: That is correct, your Honor, but that—

The Court: And the Court of Appeals will have an [9]

opportunity to continue or to order a stay— In other

words, it is not as if these orders were effective tomorrow,

and please consider that dimension in your argument, if

you wish to make an argument.

Mr. McMahon: Your Honor, we would renew, if nec-

essary, and even file separately an independent motion to

the Court of Appeals to stay beyond January one the

transfers and imposition of the receivership, but I do not

think that questions of this kind and of such complexity

in terms of their novelty and their depth can be decided

by the Court of Appeals, as this Court of Appeals so care-

fully decides questions, before January one.

The Court: Well, | am sure you are aware, being

in touch wtih the situation generally, that the operations

of South Boston High School and the L Street Annex, as

far as the operations in the balance of last week are con-

cerned and the operations today are concerned, are under

the control of the Federal Court in the most technical way.

Mr. McMahon: Yes, your Honor.

The Court: It is true that the Court has, for the pur-

poses stated in its orders, ordered this temporary receiver-

ship, but I am unaware of any change in the operation of

the school. I don’t think there has been any change in the

faculty or staff, or the conduct presence of law officials or

other persons. No question that the order is effective [10]

and the intention of the Court is, incidentally, to settle upon

a new headmaster as soon as can be.

I don’t want to lead you to an erroneous opinion or under-

standing here. Mr. McDonough, the temporary receiver,

has made numerous inquiries and has made considerable

progress in his efforts to select a successor to the building

administrator at South Boston High, and I don’t expect it

is any— well, I expect I should note on the record that I

conferred with Mr. McDonough for proably 45 minutes

shortly before coming up here this afternoon.

So that is the situation. Do you want to argue further on

the matter?

Mr. McMahon: No, your Honor, | don’t think so.

The Court: All right. Anyone else now? Yes, Mr.

Coleman.

Mr. Coleman: Yes, your Honor. The Administrators

Association would also support the motion for a stay as

regards Paragraphs 2 and 3. Particularly with reference

to Paragraph 3, it is our opinion that the South Boston

High School could continue to operate, implementing the

Court’s order to the fullest, with the administrative staff

intact, and if the Court believes that it is neccessary for a

receiver, we believe that administrative staff can work

under a receiver.

We think that it is inappropriate, based upon the [11]

evidence in this court room, to place the bulk of the public

blame and fault on the administrative staff of South

Boston High School for any failure to implement the plan

that the Court may have seen or found, and therefore we

believe that these orders are to be stayed pending review in

the Circuit Court.

The Court: All right. Anyone else in support of the

motion.

[ No response. }

The Court: Apparently not. That clears the way for

you, Mr. Pressman.

Mr. Pressman: This being a motion for a stay, an

appropriate starting point is the standard that should

apply with respect to a stay of an order of the District

Court. The Court of Appeals addressed this question in

an opinion on June 17th when a number of the parties here

sought to stay the Court’s Phase 2 remedy.

The Court of Appeals mentioned two standards. One of

them was that the applicant must demonstrate that the

harm to him if a stay is not granted outweighs the harm

to the other parties if the stay is granted. The other factor

mentioned is that there exists the probability that he,

meaning the applicant, will succeed in his appeal on the

merits.

Before getting on to discussing the motion and the [12]

particular orders, there is another point that should be

considered preliminarily, and that is the deference that the

Supreme Court has indicated is in order when a district

court has developed a remedy during the remedial phase of

a desegregation case, We can recall that Brown and I did not

discuss remedies. The court instead addressed a list of

questions to counsel and other interested parties, includ-

ing questions addressed to should the Supreme Court enter

a decree or should the cases be returned to the district

courts, and the Supreme Court decided on the latter process,

specifically referring to the fact that the district courts

would be closest to the situation, that there would likely

be a need for further hearings, that the district courts

would have the best understanding of the facts and the

remedies needed, and that theme has been repeated in the

subsequent cases, Swann, and the Montgomery County

case before, and that principle we think is uniquely applic-

able here.

The Court has spent many days on hearings, becoming

familiar with the facts of this matter, the problems of im-

plementation, employing less rigorous remedies, and seeing

first how they worked.

Now with respect to the motion, and the argument by

the School Committee in support of the stay, we think it is

plainly inadequate on the face. There is not one word about

the comparative harms between issuing a stay and denying

the [13] stay. All these orders rested on findings by the

Court of irreparable injury to the plaintiff class, and the

Court of Appeals has made it clear that there must be a

showing with respect to the balance of harms, and that is

not even suggested in the motion or argument by counsel.

Alse, we think that the argument is defective with re-

spect to showing some possibility of success on the merits.

‘here is reference to some briefs that were filed some time

ago about a complete receivership, but there is nothing ad-

dressed to the specifics of these three orders before the

Court, two of which are in writing and a transcript setting

forth the Court’s findings for these specific orders, so

that we think that if just the argument of the committee is

considered and the motion, the stay needs to be denied, but

beyond that, we think that each one of these orders is

plainly consistent with the Court’s authority.

The first order we will discuss is the order imposing a

temporary hold on the School Committee’s ability to

make appointments. In the first place, it needs to be point-

ed out that that is not an absolute bar on appointments. The

order specifically refers to the authority to come to the

Court to request acting appointments with respect to speci-

fie positions, and in one instance in which that was done, the

Court allowed the appointments. At the last hearing, the

Court said that at any point when there was a need, the

[14] committee should make a specific request.

We think that this order is supportable on two grounds.

First, in the June 21, 1974 opinion, the Court found that

there was discrimination with respect to employing ad-

ministrators. The Court found that the system of employing

administrators carried forward the dicrimination with re-

spect to hiring teachers, because teachers were the primary

pool for appointing administrators. The Court of Appeals

specifically, in our view, agreed with that rationale, so

that we think that this temporary hold is justifiable to pre-

serve the status quo with respect to the racial make-up of

the administrative staff while the Court gives further con-

sideration to the remedial proposals in that area, and we

think that this kind of relief is similar to the relief upheld

in the NAACP versus Beecher case by the Court of Ap-

peals.

There what happened was the district court enjoined

permanent appointments of firefighters pending develop-

ment of a validated exam, acting appointments could be

made, and the Court of Appeals upheld that relief, and we

think that this is a similar situation.

Secondly, we think that this order can be sustained

based on the record of conduct here with respect to admin-

istrative positions of the majority of the School Committee

since the June 21st order. That seemed to be the basis that

the Court was giving for the temporary hold in the bench

[15] ruling referring to the possibility that persons hostiie

to implementation of the plan would be put in many posi-

tions before the new committee was seated.

We can refer to a number of actions. There was non-

compliance with the January 28, 1975 order with respect to

appointing minority recruiters. There was a failure to

appoint district superintendents under the May 10th plan

until the Court specifically ordered it. There were prob-

lems during the past summer with salaries for persons

who were working to implement the plan.

The position of safety coordinator remained unfilled for

a period after Mr. McCabe was given other responsibilities.

There were inadequate personnel for the transfer office.

There was the problem we had recently with respect to

the person designated to be in charge of security, and there

was the slow pace that we all witnessed with respect to one

minority administrator for South Boston High School, and

we think that this pattern of obstructive conduct is a

second and independent reason why the Court could put a

temporary and limited hold on the authority to make ap-

pointments.

The next order that we wish to discuss is the order ap-

pointing the receiver for South Boston High School. What

this does is to displace the authority of the School Com-

mittee for one aspect of the system, but we point out that

it does [16] not do it by appointing someone totally out-

side the system to have the authority and to be responsible

to the Court. It puts in that place the person that was selec-

ted by the Schoo] Committee to be in charge of that district.

We think that is a significant point.

We point out that this order rests on a clear finding of ir-

reparable injury to the plaintiff class, The Court agreed

with our motion that black students were not receiving

the peaceful, integrated education to which they were en-

titled under the Fourteenth Amendment and the order.

The Court did not agree with every word in our motion,

but it made findings about assault on black students and

racial epithets affecting them. There was a clear finding

of irreparable injury.

In assessing the legality of that order, we think that the

starting point is the Court’s underlying authority. From

Brown II on, the Supreme Court has said that federal

district courts in desegregation cases would exercise all

the traditional equitable powers. Thus, in Brown II the

court said: ‘‘In fashioning and effectuating the decrees,

the court wil) be guided by equitable principles.’’ One of

the traditional equitable principles is that a court of equity

in some rare instances in an extreme situatign can use the

remedy of receivership. For example, in the Aldrich case,

151 Fed. 2d at 261, the Court of Appeals for the First Cir-

cuit suid: [17] ‘‘The appointment of receivers in the case

at bar was an appropriate exercise of the court’s inherent

equitable power.’’

Again, in Swann, the Supreme Court addressed the scope

of the equitable power of the district court in a desegre-

gation case. The court said: ‘‘The essence of equitable

jurisdiction has been the power of the Chancellor to do

equity and to mould each decree to the necessities of the

particular case. 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 as-

sure a unitary school system.”’

So the general language of the cases at least suggests

broad authority of the district court to deal with the neces-

sities of the situation, but the question can be asked and

has been asked: Despite this broad language, is it never-

theless proper in any circumstances for elected officials to

be displaced? Can this never be done? We say under the

law that that is not the case, that in a rare case like this,

where we have months, in fact, more than a year, of ob-

structive conduct, what the Court has done in 2 limited way

is proper, and we rely on the following authorities:

In the first case, in the Swann case, the question was

developing a segregation plan, and when the schoo] auth-

orities, who were elected, after numerous opportunities to

present a plan, nevertheless did not present one that ap-

proached [18] legality, the court appointed experts, who

were court experts, well, a court expert, who drew the

plan which the court then adopted. This had the effect of

displacing the elected authorities from one of their most

important prerogatives, namely, deciding to which schools

the pupils would go. That action was specifically upheld

by the Supreme Court, and it has been done in other cases.

Second, we find support for the Court’s approach in

reapportionment cases. There have been a number of cases

where, after the court gave the legislatures an opportunity

to reapportion themselves, to develop a valid plan, and they

nevertheless defaulted, the court then by itself or with the

aid of a master developed a plan of its own. This principle

is recognized and some of the cases are collected in Sixty-

seventh Minnesota State Senate versus Beens, 406 U.S. at

195 to 200.

Furthermore, there seems to be a suggestion, partic-

ularly in the paper that was filed seeking a stay in the

Court of Appeals, that what the committee has been doing

mirrors the views of the electorate, and that somehow the

committee can always do that without being displaced. Well,

that is just not the law at all. In another reapportionment

case, Lucas, 377 U.S. at 736-37, there was a situation where

the electorate had approved a reapportionment plan which

the court found did not comply with the one-man-one-vote

[19] requirement, and the court rejected the notion that that

insulated it from attack, saying, ‘‘One’s right to life,

liberty, and property and other fundamental rights may

not be submitted to vote, may depend on the outcome of

no elections. A citizen’s constitutional rights can hardly

be infringed simply because the majority choose that it be.’’

So we say under these authorities that there is no

absolute phohibition on displacing elected officials when

their conduct is of the type that has occurred here.

The next question as to the validity of orders was, was

there a need for them, is there some indication that the

irreparable injury which the Court found could have been

addressed by some remedy that does not exclude the School

Committee from acting the part. We say that based on the

nature of the problems and the performance of the majority

of the School Committee since June 21st, the answer to that

question is plainly no.

First, the nature of the problems. The Court found that

there is a school in which more than a year into the plan

there is not a peaceful, integrated education. What is re-

quired, someone has to evaluate very carefully the prob-

lems in that school, to think of a range of solutions, to

consult with other persons about solutions, to implement

solutions. Ne one can blueprint in advance exactly what

the analysis ix going to entail or what the solutions will

be, but that is [20] the kind of effort that is needed, and it

has got to be done by someone who wants to see a solution

at the end of the tunnel also. The words and the deeds of

the majority of the School Committee show that they are

not able to participate in that kind of effort, and the plan,

to use some familiar words here, that included them would

not promise realistically to work.

Back in the beginning, on June 21st, the Court began

with some general, affirmative orders, That just did not

prove adequate to insure compliance. The Court had to

repeatedly inform the majority of the School Committee

that general remedial orders required that they do— every

staff, large and small, and that they do a little thinking about

the kinds of things that were necessary for the plan to work

properly. In just one area where there were problems, and

the Court repeatedly had to point out, the obligation was

with respect to providing funding for the different pro-

grams.

The reason that general orders proved inadequate is

clear from the words of the School Committee members

when the Court invited them to court during the contempt

proceeding. Two of the members said and in their answers

to written questions that they would not do anything to

supplement the plan. Well, the Court cannot issue an order

that is as long as an encyclopedia, detailing every i that

needs to be crossed— every i to be dotted and every t to be

crossed. It needs to [21] rely at least to somb extent on

general orders, and when the School Committee members

said they would not supplement the plan, they were in effect

saying they would not comply with their obligation.

Later, we repeatedly heard about the need for direct

orders. Well, as the Court stated when that occurred, the

general order should have been enough for the members

of the School Committee to meet their affirmative obliga-

tion under the Constitution. But then when there were

specific orders, they did not work very much either, There

was noncompliance with the order on hiring minority re-

eruiters for many months. There was noncompliance with

the order about submitting a plan on December 16th. There

was noncompliance with the orders about appointing ad-

ditional district superintendents, and there were several

other specific orders that were not complied with.

Further, and this is, you know, one of the most significant

points, and the point | have mentioned, it is simply not

possible for the Court to issue an order that covers in

advance every single thing that needs to be done. The

Court in the order to Mr. McDonough has indicated a num-

ber of topics on which he should make reports, but it is not

really possible for the Court and the experts in advance to

say exactly what should and should not be done in each of

those areas. Someone who wants to see the problem re-

solved [22] has to look into those areas with the will and

the desire to resolve the problems.

The Court has done other things to try to avoid the

day that was reached. Officials who have come to court to

speak, to state their views, to express— to engage in a

dialog with the Court have been permitted to do so: the

mayor, several representatives, a member of the School

Committee. There have been innumerable hearings where

parties could raise pretty much anything they wanted to

raise. The Court has sometimes inquired again and again

about particular things: what was the progress being made;

what was the progress in the School Committee taking a

view on the hours, on the staggered hours of opening;

what was the progress on appointing a black assistant at

South Boston High School; what was the progress on

giving a budget to.the Office of Implementation.

Then the Court, when the Civil Rights Commission raised

the point, asked for memos on recceivership, and the memos

were on file for a while, while all of us hoped that some

things would change.

Part of the problem is the attitude, the obstructive at-

titude, of some of the members of the School Committee.

We remember that when the first draft of the instruction

booklet was available, the School Committee’s approach

was to say how unworkable it was and then to announce

that in a press [23] conference, rather than to see if that

could be worked out first.

We have to remember that the School Committee had

submitted a plan where the mechanism for assignment was

far more complicated than the Court’s plan, but when the

first draft of the booklet was complicated, the approach

was to publicize, oh, how workable this was, but it did not

prove that way after some members of the staff and the

experts worked on the booklet. :

The Court, with a lot of precedent from other cases, ap-

pointed a citywide committee. One day at a School Com-

mittee meeting on June 4, 1975, Mr. Kerrigan discussed

working with the committee. First he said, ‘‘ Well, I would

rather work with syphilis.’’ Then he corrected the record.

He said, ‘‘I’d rather work with gonorrhea.’’ Then later on

he corrected it again; he said ‘‘I’d rather work with some-

one with bubonic plague.’’

Well, those are some of the problems that the Court

has been faced with and have forced the Court where it is

now, to a remedy that is strong but, we say again, within

the Court’s authority. There are many other instances of

obstructive conduct and they don’t have to be mentioned,

but they are detailed in the memo that we filed on receiver-

ship on September 26th.

The Court did not seek the level of involvement of [24]

these multiple teams that we have had to have. The very

first time we have been able to find when counsel for the

School Department brought up the question of how far the

Court was going to get into the daily operations of the

system, the Court said, on July 23, 1974, ‘‘Not one finger-

nailful than absolute necessary.’’

Later, when the members of the School Committee were

here for the contempt hearing, the Court, in addressing

Mr. Kerrigan, said: ‘‘Once there is a plan, can the Court

anticipate your cooperation? because— or do I have to say,

‘Do this, do this, do this,’ because I cannot do that.’’ Then

later on again during the summer, the Court was repeatedly

saying things like that.

la sum, we think that these facts and the law made what

the Court did inevitable and necessary.

Now, a little more with respect to the legal support and

legal authority for what the Court did. We have mentioned

the general language of Brown II and Swann. There is also

the case of Turner 1. Goolsby, 255 Fed. Supplement at 724.

To be sure, the members of the school board there were

not elected but we have previously argued that there is not

a material distinction when the facts are like the ones

here. There the receiver developed a desegregation plan;

later, at the court’s request, investigated claims of in-school

discrimination ; considered the need for remedial programs.

There the receiver [25] was the state Superintendent of

Education. Here the receiver is .omeone from within the

school system, appointed by the members of the School

Committee, my recollection is, unanimously, with one ab-

stention, to be in charge of that area.

A second case that we think furnishes support is United

States versus Board of School Commissioners of Indianap-

olis, 503 F.2d 75 to 78. There the court, after the school

committee— school board defaulted in submitting a plan,

‘*temporarily assigned the school department’s planning

staff to assist the court experts’’ which the court had

appointed.

There are other authorities that we think are perti-

nent, and they are in our receivership memo at pages 65

to 67. '

Now with respect to the order transferring Dr. Reid

and the other administrators and Mr. Perdigao, we point

out that they will be having the same pay and very similar

positions. We think under the case law that applies to the

remedial phase of school desegregation cases that the Court

need not make a finding of intentional wrongdoing each

time it takes action. The question is one of effect, and here

the Court has found that the plan was not being effectively

implemented, many months after desegregation had started,

and we think under the cases that say effectiveness is the

test, the Court can replace the persons under whom the

plan has not been successful without some finding that

they intentionally [26] engaged in wrongdoing, and we rely

on the Davis case, 402 U.S. at 37, and White v. Emporia, 407

U.S. at 459 to 462, in taking that position. We point out

that these are not cases about transferring administrators,

but they do, we believe, establish the principle that in the

remedial phase of a desegregation case, the question is

effect.

With respect to transfer of power, for a long time courts

have directed transfers of staff to achieve desegregat:on.

We think that this is authority for transferring them for

another purpose if it is necessary to effectively implement

the plan. We think that the Court could conclude whether

or not the administrators engaged in intentional wrong-

doing that they would be so associated with the noncom-

pliance, the lack of adequate implementation of the plan,

for a number of months, in the minds of all the students in

the community and the teachers there that the Court could

conclude that people without prior involvement in the

schools should make a fresh start toward implementing

the plan.

We think that the arguments that we have made with

respect to the administrators apply a fortiori with respect

to Mr. Perdigao, based on the specific findings made by

the Court with respect to his situation.

In conclusion, our view is that each of the orders was

based on specific findings of irreparable injury; that no

showing whatsoever has been made that the harm, to the

students [27] if stays are granted would be less than the

harm to the officials if the stays were not granted; that

these actions are plainly within the authority of the Court

when the facts are what they have been since June 21

1974; and we therefore say that the stay should be denied. :

The Court: [To Mr. Sullivan] Well, there might be

someone else before you. We have rebuttal. I don’t know

if anyone else wants to be heard.

Miss Taylor: Briefly, your Honor.

The Court: Miss Taylor.

. Miss Taylor: We would join the plaintiffs, your Honor,

in opposing the stay of the order pending appeal. El Comite

maintains that the minority children of Boston have a

right to safe, desegregated education, that immediate

action of this Court is required in order to assure that.

Hearings in this court have determined that they are not

receiving safe, desegregated education at this time.

We would agree wiih the plaintiffs regarding the stan-

dard stated by Mr. Pressman. We feel that the irreparable

harm suffered by the School Committee in losing its right

to continue in office is by far outweighed by the right of

minority children to equal education.

We would also point out that the appellate courts have

continuously invited the district courts to exercise broad

equitable powers in fashioning remedies in desegregation

[28] eases. At the chance of sounding simplistic, we would

argue that this Court has an obligation to formulate a

plan that works and one that works now. We would there-

fore oppose a stay at this time.

The Court: All right. Yes, Mr. Sullivan.

Mr. Sullivan: If your Honor pleases, there are two

things mentioned by counsel for the plaintiffs, one of

them having been mentioned by the Court last Friday. The

Court and counsel for the plaintiffs seem to share the view

that the sentence contained on page 2 of the order suspend-

ing appointive power of the School Committee remedies

another otherwise severe situation by providing that act-

ing appointments to particular positions may be made,

subject to prior court approval.

I disagree with that opinion, because the elected public

officials are supplicants. They have to come to the Court.

It is the Court who makes the appointment. The Court

retains an imprimatur and takes it away from the elected

officials, Whether or not that language appears to be a

modification, in effect it is not.

Another thing—

The Court: Before you get to the next thing—

Mr. Sullivan: Yes. |

The Court: —what did you make of the asterisk, which

I hoped would answer that point to some extent, and [29]

that is that the Court does not want to learn the identity

of people. If it is a position that requires filling, sch

as the people who are working on this vocational education

plan, I am not concerned about who it is. So do you not

distinguish between a court saying a position can be filled

and saying put Mr. So and So in that position? which I

think is a different story.

Mr. Sullivan: Not really. Not when it is a usurpation

of the rights of elected officials. I respectfully disagree

with your Honor.

Another thing that was expressed by counsel for the

plaintiff was, Well, it would be different if someone outside

the system were appointed as receiver. That type of salve

in no way calms the sting of the wound. The fact of the

matter is that the elected officials have been removed, their

authority has been destroyed, and whether one comes from

West Roxbury or Timbuktu to be the receiver makes no

difference.

Counsel for the plaintiff has argued lengthily and given

us a history of this litigation from his or the plaintiff’s

point of view. However all-inclusive his argument may

seem to have been, it does not face up to what I consider

the narrow issue before the Court: the scope of your

powers and your— tke scope of your orders and your

authority to render them. He talks about reapportionment

cases and the like. [30] I would prefer to talk about a case

dealing with an implementation order, Keyes versus School

District Number One, in Denver, found at 521 Federal 2d

and I— This case— .

The Court: Do you have the page? If you have it there

I will note it.

Mr. Sullivan: Four sixty-seven, I believe.

The Court: All right. Is this before or after the

Supreme Court decision, if you know?

Mr. Sullivan: After.

The Court: All right.

Mr. Sullivan: Now, this decision, it seems to me, nar-

rows in on the question of the authority of a judge in an

implementation order, and I would like to take a little time

if I may, your Honor, to quote from that decision.

The Court: Let me ask one other thing, if I may.

Mr. Sullivan: Yes, your Honor.

The Court: Does the date appear at the beginning of

the opinion?

Mr. Sullivan: I don’t have the very first page.

The Court: All right. Well, don’t—

Mr. Sullivan: Those are headnotes, and I did not

carry that—

The Court: All right. Fine.

Mr. Sullivan: —1975 case. That much it is.

The Court: All right.

{31] Mr. Sullivan: But the month I cannot give you.

The Court: All right. ;

Mr, Sullivan: Now that decision quotes the United

States Supreme Court in the Milliken versus Bradley case

and others. It said: ‘‘Direct local control over decisions

vitally affecting the education of children has long been

thought essential both to the maintenance of community

concern and support for public schools and to the quality

of the educational process.’’ Further, ‘‘Local control per-

mits citizen participation in the formulation of school

policy, and encourages innovation to meet particular local

needs. Educational policy, moreover, is an area in which

the courts’ lack of specialized knowledge and experience

counsels against premature interference with the informed

judgments made at state and local levels.’’

From the same page, 482, ‘‘We believe that the district

court’s adoption of the Cardenas plan would unjustifiably

interfere with such state and local attempts to deal with the

myriad economic, social, and philosophical problems con-

nected with the education of minority students. Instead of

merely removing obstacles to effective desegregation, the

court’s order would impose upon school authorities a

pervasive and detailed system for the education of minority

children. We believe this goes too far.’’ And I believe that

your orders go too far.

[32] The Court: All right. Well, yes.

Mr. Pressman: Yes. I would just like to make a few

comments about the Keyes case.

The Court: All right.

Mr. Pressman: The question was the permissibility of

the desegregation plan approved by the district court, and

the Court of Appeals held that in two respects, the district

court had entered provisions that were not related to par-

ticular constitutional violations found by the district court,

were beyond its authority because they did not relate to

the segregation of the system which he had found. Here we

have pointed out in our argument that what the Court has

done is to deal specifically with impediments to implement-

ing its desegregation order.

The Court: Well, I will decide this in a moment— I

mean in a few minutes, after taking a brief recess, because

I think a quick decision is consistent with everyone’s

determination to have all these questions resolved speedily.

Before taking a recess, which will be between five and

ten minutes, and then I will come back and state the deci-

sion, there is a housekeeping matter I want to ask about,

or I might otherwise forget to, for Mr. Sullivan. Is there

an arrangement to be made whereby Miss Fahey’s counsel

is to be compensated, if you know? That is something you

were going to—

[33] Mr. Sullivan: —when the committee holds its

next meeting, your Honor.

The Court: All right. Thank you, then. We will take

a short, five-minute reccess.

[ Recess. ]

AFTER RECESS

The Court: The ruling is that the motion to stay is

denied in all respects. | have already stated that I would

not entertain the motion with respect to Paragraph 4, which

I thought to be interlocutory, and the parties have not

argued that aspect of it.

With respect to Paragraph Number 1, about the mora-

torium on appointments, I feel that the plaintiffs, rather

than the defendants, who are here the moving parties, have

demonstrated a probability of prevailing on the merits on

appeal. On the matter of balancing harm to the parties,

that is, to the plaintiffs from granting of the motion and

to the defendants from the denial of the motion these

positions which cannot now be filled are not all of the

positions. They are only certain high level positions, and

they have been vacant, in many instances, for years. I can-

not see any harm to the School Committee if they should

remain vacant for another few weeks.

Were the motion to be granted with respect to Paragraph

One, it would, I believe, have the effect of defeating the

[34] Court’s order of December 9th. In this instance, I am

unable to distinguish between the merits and the motion to

stay, and I think that to grant the motion to stay with re-

spect to Paragraph One would be equivalent to a reversal

of the Court’s order entered December 9th, and I simply

am not prepared to reverse the order, because I do not

think it should be.

Paragraphs 2 and 3 are different. They are the para-

graphs that appoint a receiver for the South Boston High

School; that is Paragraph 2; and then the one that orders

that certain personnel at the school, the building admini-

strator and his assistants and the football coach, be trans-

ferred. There agan, the Court feels, first, that the defen-

dants have not shown a probability of sueceeding in their

appeal. In my view, those orders are not essentially dif-

ferent from dozens of provisions in the desegregation plan

itself.

The desegregation plan interferes at many points with

the autonomy of the School Committee. I do not have the

plan in front of me, but some of the many ways in which

the authority of the School Committee is superseded in

matters never thought to be the prerogative of a court

would be the order that each school building must have a

headmaster or principal, or, called in the plan, a building

administrator.

We will recall that over the years, it was the practice to

have an elementary school principal in charge of a group

of schools. He might be principal of as many as four or

[35] five, even six schools that were located fairly close to

one another. The Court accepted the masters’ recommenda-

tion that if there was to be accountability in the school

system, and other benefits, which would be necessary if

the plan were to work, there should be a person in charge

in each building, and the Court so ordered.

The Council of Principals, the drawing of certain dis-

trict lines, all sorts of orders in the plan supersede and

interfere with the normal prerogatives of the School Com-

mittee, so I look upon this order transferring the admini-

strative chiefs at South Boston and putting the school in

receivership as not different essentially from an order that

could have been put into the plan along the following lines:

Unless certain changes are accomplished at the end of

six months from today

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.