Petition — Manch v. Arthur

7 Supreme Court, U.S ~”)

{ FILED

JUL 5 1978

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978

JOSEPH MANCH, individually and as Superintendent of Schools of the City of Buffalo,

EUGENE T. REVILLE, individually and as Superintendent of Schools of the City of

Buffalo, THE BOARD OF EDUCATION OF THE CITY OF BUFFALO, FLORENCE

FE. BAUGH, SAMUEL E. SACCO, JOSEPH E. MURPHY, MOZELLA RICHARD-

SON, DR. MATT A. GAJEWSKI, LOUIS C. BENTON, MICHAEL J. RYAN,

JOSEPH D. HILLERY and MARILYN P. KAVANAGH, individually and as Members

of the Board of Education of the City of Buffalo, STANLEY M. MAKOWSKI, Mayor

of the City of Buffalo, and DELMAR L. MITCHELL, RAYMOND LEWANDOWSKI,

GUS FRANCZYK, ALFREDA W. SLOMINSKI, WILLIAM J. DAURIA, JOSEPH

S. FORMA, MICHAEL McCARTHY, WILLIAM B. HOYT, GEORGE K. ARTHUR,

RICHARD F. OKONIEWSKI, HORACE C. JOHNSON, JOHN A. RAMUNNO,

ANTHONY M. MASIELLO, DANIEL J. HIGGINS and WILLIAM A. PRICE,

constituting the members of the COMMON COUNCIL OF THE CITY OF BUFFALO,

Petitioners,

vs.

GEORGE ARTHUR, NORMAN GOLDFARB, WILLIAM and WILHELMINA P.

SEALES, JOHN MEDIGE, and THE CITIZENS COUNCIL FOR HUMAN

RELATIONS, INC. and NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, BUFFALO BRANCH,

and

EWALD P. NYQUIST, individually and as Commissioner of Education of the State of New

York, THE BOARD OF REGENTS OF THE STATE OF NEW YORK, THOMAS M.

BLACK, CARL H. PFORZHEIMER, JR., ALEXANDER J. ALLAN, JR., JOSEPH C.

INDELICATO, M.D., KENNETH B. CLARK, HAROLD E. NEWCOMB, WILLARD

A. GENRICH, EMLYN I. GRIFFITH, GENFVIEVE S. KLEIN, WILLIAM

OVANOVICH, MARY ALICE KENDALL, JORGE L. BATISTA, LOUISE E.

AVNER, MARTIN C. BARELL and LAURA BRADLEY CHODOS, individually and

as Members of the Board of Regents of the State of New York,

Respondents,

Respondents.

ae

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

JOSEPH P. MceNAMARA,

Corporation Counsel,

attorney for Petitioners,

1100 City Hall,

Patricia A, PANCOR, No. 65 Niagara Square,

Assistant Corporation Counsel, Buffalo, New York 14202.

WittraM E. Carey,

Assistant Corporation Counsel,

Of Counsel.

————

BATAVIA TIMES, APPELLATE COURT PRINTERS -iD=

A. GERALD ELEPS, REPRESENTATIVE

20 CENTER ST., BATAVIA, B. Y. 14020

C716) 344-2000, (718) B43.0487

IND erp shas Man bee Se Se ne nlb id coche chek

FARGO OKLA o HCE BECO: ow BE eS ee

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New York Public Housing Law...................

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Decision of the District Court ................

SO Se ee a

Yerby Dixon Proceedings ....................

IL BEDE. Sur, OS. a Se oek KK

Transfers and Option Zones..................

Junior High and Middle Schools .............

Compliance with State Mandate to Improve

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Reasons for Granting the Writ .....................

I. The Circuit Court has intensified a conflict among the

circuits and misapplied applicable decisions of this

Perens aM in SUs DE SEMLA AS Sa ti Se ied c cece

A. The Circuit Court Decision Highlights a Con-

flict Among the Circuits as to the Meaning of “In-

tent” in School Desegregation Cases ............

— I i

II.

Page

B. The Courts Below Misinterpreted Decisions

PN CS Wee 0a SAVES dC CNEY THER OA nUene’s 26

C. The District Court misinterpreted prior law in

its use of evidence related to independent govern-

mental actions as furthering discrimination in

residential housing patterns within the City...... 30

II. The Circuit Court misapprehended the legal re-

sponsibilities of the State and City Defendants with

respect to education and applied inconsistent stan-

dards of intent to the City and State Defendants... 33

(A) The Legal Responsibilities for Education of

the Board of Regents, Commissioner of Education

and Common Council of the City of Buffalo .... 33

(B) The Circuit Court Applied Inconsistent Stan-

dards of Intent to the City and State Defendants. 35

CIN fcc eis dein 'o:Xi 00.4.0, 0:0.510.4,0 WOREES SUR aee tas 39

Appendix A—Order Adding Parties Defendant and

AammenGing Title Of ACUOW, 6. ici icc cisuees. la

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc. ............. 4a

Appendix C—Decision and Order Dated April 30, 1976 12a

Appendix D—Order Clarifying the Court’s April 30,

i | a re eee ee ee re ae 130a

Appendix E—Order Making Corrections in the Court's

es vk wis obs be kiblacd’ a: bin 'e's0 o OURO MY 132a

Appendix F—Proceedings Before Hon. John T. Curtin,

Be BOD con tesa cokes ides VAN De Bee: 134a

Appendix G—Decision and Order Dated December 10,

1976 Denying State Defendant Motion to Reconsider 136a

Appendix H—Order of Judge Curtin Rebriefing Austin 143a

Appendix I—Decision and Order of the United States

District Court for the Western District of New York

CP ON By Ed ives ee Swe IV 144a

Page

Appendix J—Decision of the United States Court of Ap-

peals for the Second Circuit...................... 163a

Appendix K—Order Denying Petition for Rehearing. . 191a

Appendix L—Order Denying Petition for Rehearing En

EE OPS FOTk bas ET LE Seen: ae Ae 193a

Appendix M—Order Extending Time to File Petition for

Re Or NE tao s SARE oidan aibimn a Ae he 195a

CASES CITED.

Arthur v. Nyquist, 415 F Supp 904 (W.D. N.Y. 1976).. 13

Arthur v. Nyquist, 573 F2d 134 (2d Cir. 1978) ........ 13

Austin Independent School District v. United States,

SP We HT CE no clos CUP ewlcbadacdcthesciks 10, 13, 26,31

Berkelman v. San Francisco Unified School District, 501

a eB I ee ere 26

Brinkman v. Armstrong, 433 US 672 (1977)........... 26

Dayton Board of Education v. Brinkman, 433 US 406

Sindh on ot Gbndndrnds Sactaiigns Gibeina: tes Wh Gin is Coie: an 26, 29,39

Fuhrman v. Graves, 235 NY 77, 138 NE 743 (1923)... 34

Hart v. Community School Board, 383 F Supp 699 (E.D.

POEs NOG eis Fate echoes Be chek cece ccckdees 31

Hart v. Community School Board, 512 F2d 37 (C.A.

My Ue H Ain 0406 hs Cake eeLE bees t tke 13,25, 26,36

Johnson v. San Francisco Unified School District, 500 F2d

a COPS CUT Ciel Sac dkndeceosudehouseceuck. 26

Keyes v. School District No. 1, 413 US 189

DEE 50S mietbas Koon habe Peele in ihc eeakes on 25, 29, 39

Milliken v. Bradley, 418 US 717 (1974)............... 31

Offerman v. Nitkowski, 248 F Supp 129 (W.D. NY 1965) 18

Oliver v. Kalamazoo Board of Education, 368 F Supp 143

MEE SECVEL SSC ot rcs wou ak ac oh beua ns 31

School District of Omaha v. United States, 433 US 667

DUEMOUDGNCET Cc Tick es stesastoccntcatechsevsas 26

Soria v. Oxnard Schdol District Board of Trustees, 488 F 2d

EE i a ee 26

IV.

Page

United States v. Board of School Commissioners of

City of Indianapolis, 573 F2d 400 (7th Cir

on Boe EE POET NES ON DR cui des CaP tigh Noga pga alte 26,38

United States v. School District of Omaha, 521 F2d 530

Gt EN ¢oa secret ee oe ee 26

United States v. Texas Education Agency, 532 F2d

Vee a, Ae .. Lette 13,26

Village of Arlington Heights y. Metropolitan Housing

Development Corporation, 429 US 252 (1977)... . 13,26,27,

28, 29,39

Washington v. Davis, 426 US 229 (1976) . . 10,26,27, 28,29, 39

STATUTES.

New York Education Law:

CEN Sy. MIEN SUD. 5. ws ctivavc es cecedudeuon 6

‘cotant nhage Ge... _, tt a me aE ae 6,14

Sections 101, 201, 202 and 303 ................... 33

we i Sr eeeenrre 34

SIs cilia ain as kw bd wid VA-ervrh Co dees esha, atau 34,36

RE ct nh hae aX sind eho ae. 34

New York Public Housing Law, Article 1, Section 3(2) 7

id. 6 iia ati dnl simhe veenuudii. i 6

Oe ee Ne PASALE) on. cccdcecece ce cnet 2

Oe ND FO a vie want orwiilescael seid 4 dh 13

we ee 4

RULES.

Rule 22(3) of the Supreme Court Rules .........._.. 2

CONSTITUTION.

United States Constitution, Amendment XIV, Sections

1-5

IN THE

Supreme Court of the United States

October Term, 1978

No. eeeeeeeeeeeeeee

JOSEPH MANCH, et al.,

Petitioners,

v.

GEORGE ARTHUR, et al.,

EWALD P. NYQUIST, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioners are the individual members of the Board of

Education of the City of Buffalo, the Superintendent of

Schools, and the individual members of the Common Council

of the City of Buffalo. They pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Second Circuit entered in this pro-

ceeding on March 8, 1978.

Opinions Below

The March 8, 1978 opinion of the United States Court of

Appeals for the Second Circuit is reported at 573 F. 2d 134

2

and is reproduced in the Appendix at pages 163a-190a. The

order denying petitioners’ Petition for Rehearing en Banc was

entered on May 26, 1978, without opinion, and is reproduced

in the Appendix at pages 193a-194a. The April 30, 1976

opinion of the United States District Court for the Western

District of New York is reported at 415 F. Supp. 904, and is

reproduced in the Appendix at pages 12a-129a.

Jurisdiction

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on March 8, 1978. A timely petition for re-

hearing, or in the alternative, rehearing en banc, was filed by

the individual members of the Buffalo Common Council and

was denied May 26, 1978. This petition for certiorari will be

filed within 90 days of the date of denial. The members of the

Board of Education and the Superintendent of Schools for the

City of Buffalo applied for and received on May 26, 1978 an

extension of time in which to file a petition to and including

July 5, 1978. This Court's jurisdiction is invoked pursuant to

the provisions of 28 USC Section 1254(1) and Rule 22(3) of

the Supreme Court Rules.

Questions Presented

1. Did the Circuit Court err in applying an objective,

“foreseeable consequences” standard in determining

segregative intent?

2. Did the lower courts err in using evidence of in-

dependent non-party governmental actions as furthering dis-

crimination in residential housing patterns within the City?

ee nnn nnn Nm

3

3. Even assuming the validity of the foreseeable con-

sequences test, did the Circuit Court err in applying that stan-

dard inconsistently with respect to the City and State defen- '

dants?

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

United States Constitution

AMENDMENT XIV—CITIZENSHIP; PRIVILEGES AND

IMMUNITIES; DUE PROCESS; EQUAL PROTECTION;

APPORTIONMENT OF REPRESENTATION; DIS-

QUALIFICATION OF OFFICERS; PUBLIC DEBT; EN-

FORCEMENT.

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

Shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among

the several States according to their respective numbers,

counting the whole number of persons in each State, ex-

cluding Indians not taxed. But when the right to vote at any

election for the choice of electors for President and Vice

President of the United States, Representatives in Congress,

the Executive and Judicial officers of a State, or the members

of the Legislature thereof, is denied to any of the male in-

habitants of such State, being twenty-one years of age, and

citizens of the United States, or in any way abridged, except

for participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion

4

which the number of such male citizens shall bear to the

whole number of male citizens twenty-one years of age in

such State.

Section 3. No person shall be a Senator or Representative

in Congress or elector of President and Vice President, or

hold any office, civil or military, under the United States, or

under any State, who, having previously taken an oath, as a

member of Congress, or as an officer of the United States, or

as a member of any State legislature, or as an executive or

judicial officer of any State, to support the Constitution of

the United States, shall have engaged in insurrection or

rebellion against the same, or given aid or comfort to the

enemies thereof. But Congress may by a vote of two-thirds of

each House, remove such disability.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for pay-

ment of pensions and bounties for services in suppressing in-

surrection or rebellion, shall not be questioned. But neither

the United States nor any State shall assume or pay any debt

or obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or emanci-

pation of any slave; but all such debts, obligations and claims

shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

42 U.S.C. Section 2000c-6

Civil actions by the Attorney General—Complaint: certi-

fication; notice to school board or college authority: in-

stitution of civil action: relief requested: jurisdiction:

transportation of pupils to achieve racial balance: judicial

power to insure compliance with constitutional standards:

impleading additional parties as. defendants.

5

(a) Whenever the Attorney General receives a complaint

in writing—

(1) signed by a parent or group of parents to the ef-

fect that his or their minor children, as members of a

class of persons similarly situated, are being deprived by

a school board of the equal protection of the laws, or

(2) signed by an individual or his parent, to the effect

that he has been denied admission to or not permitted to

continue in attendance at a public college by reason of

race, color, religion, sex or national origin,

and the Attorney General believes the complaint is

meritorious and certifies that the signer of signers of such

complaint are unable, in his judgment, to initiate and main-

tain appropriate legal proceedings for relief and that the in-

stitution of an action will materially further the orderly

achievement of desegregation in public education, the At-

torney General is authorized, after giving notice of such com-

plaint to the appropriate school board or college authority

and after certifying that he is satisfied that such board or

authority has had a reasonable time to adjust the conditions

alleged in such complaint, to institute for or in the name of

the United States a civil action in any appropriate district

court of the United States against such parties and for such

relief as may be appropriate, and such court shall have and

shall exercise jurisdiction of proceedings instituted pursuant

to this section, provided that nothing herein shall empower

any official or court of the United States to issue any order

seeking to achieve a racial balance in any school by requiring

the transportation of pupils or students from one school to

another or one school district to another in order to achieve

such racial balance, or otherwise enlarge the existing power

of the court to insure compliance with constitutional stan-

dards. The Attorney General may implead as defendants such

additional parties as are to become necessary to the grant of

effective relief hereunder.

6

Persons unable to initiate and maintain legal proceedings

(b) The Attorney General may deem a person or persons

unable to initiate and maintain appropriate legal proceedings

within the meaning of subsection (a) of this section when such

person or persons are unable, either directly or through other

interested persons or organizations, to bear the expense of the

litigation or to obtain effective legal representation; or when-

ever he is satisfied that the institution of such litigation would

jeopardize the personal safety, employment, or economic

standing of such person or persons, their families, or their

property.

“Parent” and “complaint” defined

(c) ,The term “parent” as used in this section includes any

person standing in loco parentis. A “complaint” as used in this

section is a writing or document within the meaning of section

1001, Title 18.

New York Education Law

Article 52, Section 2551

Board of education corporate body

The board of education of each city school district of a city

with one hundred twenty-five thousand inhabitants or more

according to the latest federal census is hereby continued as a

body corporate.

New York Education Law

Article 65, Section 3201

Discrimination on account of race, creed, color or

national origin prohibited

1. No person shall be refused admission into or be ex-

cluded from any public school in the State of New York on

account of race, creed, color or national origin.

7

2. Except with the express approval of a board of

education having jurisdiction, a majority of the members of

such board having been elected, no student shall be assigned

or compelled to attend any school on account of race, creed,

color or national origin, or for the purpose of achieving

equality in attendance or increased attendance or reduced at-

tendance, at any school, of persons of one or more particular

races, creeds, colors, or national Origins; and no school

district, school zone or attendance unit. by whatever name

known, shall be established, reorganized or maintained for

any such purpose, provided that nothing contained in this sec-

tion shall prevent the assignment of a pupil in the manner

requested or authorized by his parents or guardian, and fur-

ther provided that nothing in this section shall be deemed to

affect, in any way, the right of a religious or denominational

educational institution to select its pupils exclusively or

primarily from members of such religion or denomination or

from giving preference to such selection to such members or

to make such selection to its pupils as is calculated to promote

the religious principle for which it is established.

New York Public Housing Law

Article 1, Section 3(2)

The term “authority” means a public corporation which is a

corporate governmental agency (except a county or municipal

corporation) organized pursuant to law to accomplish any or

all of the purposes specified in article eighteen of the con-

stitution and includes the following municipal housing

authorities established prior to the first day of January,

nineteen hundred thirty-nine pursuant to chapter four of the

laws of nineteen hundred thirty-four and amendments

thereof,’ namely, Buffalo municipal housing authority,

Lackawanna municipal housing authority, New York city

housing authority, Peekskill housing authority, Port Jervis

housing authority, Schenectady municipal housing authority,

Syracuse municipal housing authority, Tarrytown municipal

housing authority, Tuckahoe housing authority, municipal

housing authority of the city of Utica, New York, and

Yonkers housing authority.

Statement of the Case

This petition presents for decision an unsettled legal issue

of significance to every school district in the country. This

Court is presented with the opportunity to end confusion

among the Circuits and definitively rule whether the foresee-

able consequences test is a proper method of determining

segregative intent.

A. Procedural History

This school desegregation case was filed by the plaintiffs as

a class action on June 26, 1972 against Ewald P. Nyquist,

Commissioner of Education, The Board of Regents of the

State of New York, Joseph Manch, Superintendent of Schools

and the Board of Education of the City of Buffalo. With

respect to the City of Buffalo School defendants, the com-

plaint alleged that (1) defendants had denied plaintiffs and

other members of their class equal educational opportunity;

(2) defendants had permitted and intensified the sharp

separation of the Buffalo school population into racially

identifiable schools; and (3) defendants had created, main-

tained, permitted, condoned and perpetuated a dual and

racially segregated system of public schools.

On April 30, 1974, an order was filed adding as party-

defendants the Common Council of the City of Buffalo and

its members and the Mayor of the City, Stanley Makowski.

The answer for all City defendants was filed July 16, 1974. On

October 1, 1974, a joint stipulation of facts was filed and a

9

full trial on the merits commenced. Testimony in the trial

finished on October 23, 1974. Plaintiffs’ post-trial brief was

filed January 13, 1975 and defendants’ briefs on March 17

and 19, 1975. All parties filed proposed findings of fact and

conclusions of law in July of 1975 and closing arguments of

counsel were made on October 19, 1975.

By an order of April 30, 1976, the District Court granted

over defendants’ objection plaintiffs’ motion to amend the

summons and amend the title and Article IV of the complaint

by adding the members of the Board of Regents as in-

dividuals, the new Superintendent of Schools, and the present

individual members of the Board of Education.

On April 30, 1976, the District Court issued its decision and

order regarding the question of liability in this case. The

defendants were ordered to submit plans to desegregate the

Buffalo Public School System. Plans were filed by the City

defendants on May 19, 1976 and on May 27, 1976, the plain-

tiffs made a motion to enjoin the defendants from implement-

ing this plan and to request the Court to appoint a monitor.

Hearings on the plaintiff's motion to restrain implementation

of the Buffalo Plan began on June 21 and continued through

July 1, 1976. The Court filed its decision on the hearing on

July 9, 1976. At that time, a plan for the 1976-77 school year

was approved.

On June 22, 1976, the Court granted permission to in-

tervene to the Community Advisory Board for Bilingual

Education of Buffalo and to City Councilman William A.

Price on June 24, 1976. The Court also granted the motion of

the Buffalo Teachers Federation, a union for teachers in the

Buffalo Public School System, to intervene as amicus curiae.

The City and State defendants filed Notices of Appeal on

September 20. The State defendants appealed the Court's find-

ing of liability in its April 30, 1976 decision. The City defen-

10

dants appealed both the finding of liability and the remedy

order of July 9, 1976.

The plaintiffs moved to dismiss the City defendant's appeal

as untimely. The City defendants maintained that the Court's

April 30th decision and order was not a final order and that

the time for appealing began to run after the July 9th

decision. This motion was argued before the Circuit Court of

Appeals in December, 1976. This Court ruled that the appeal

was timely.

The District Court filed an order on December 14, 1976

directing all parties to analyze and brief the Supreme Court

decision Austin Independent School District v. U.S., 429

U.S.990 (1976) and Washington v. Davis, 426 U.S. 229 (1976)

as they pertain to this case. On December 30, 1976, the City

defendants filed a Notice of Motion to vacate, or in the alter-

native, to reconsider the District Court's decision and order

of April 30, 1976 in light of the recent Supreme Court

decisions. The District Court on March 1, 1977 filed its

decision and order reaffirming the Court's decision of April

30, 1976. A Notice of Appeal from that order was filed by the

City defegdants on March 8, 1977.

Argument was heard in the Second Circuit Court of Ap-

peals on November 10, 1977 and a decision which affirmed

the lower court's decision as to the City defendants, and re-

versed as to State defendants was rendered March 8, 1978.

The Common Council of the City of Buffalo defendants filed

a petition for rehearing and/or rehearing en banc on March

21, 1978. The petition was denied as to rehearing and

rehearing en banc on May 26, 1978. The Board of Education

and Superintendent of Schools of the City of Buffalo, defen-

dants requested and received an extension of time in which to

file their petition for a writ of certiorari to July 5, 1978.

B. Decision of the District Court

The District Court in its April 30, 1976 decision and order

found that .

“the Board of Education, the Superintendent of Schools,

the Commissioner of Education, and the Board of

Regents have violated the plaintiffs’ fourteenth amend-

ment right to equal protection under the laws by in-

tentionally causing and maintaining a segregated school

system.”

In support of this conclusion, the District Court made the

following general findings of fact:

1. The racial impact of the language program (at East

High School) was clearly foreseeable and the failure of

the Board to amend this policy when it was obviously

aware of its segregative impact is indicative that the

Board intended that that segregative effect continue (Ap-

pendix at p. 36a).

2. The conflicting evidence is not sufficient to show

racially segregative intent on the part of the City or the

State defendants with respect to the siting of the

Woodlawn Junior High School (Appendix at p. 48a).

3. The Board, in approving the district for

Woodlawn Junior High School, fully understood that the

result of adopting or creating such a district would be to

populate the Woodlawn school totally with black

students (Appendix at p. 48a).

4. The Board's transfer and optional areas policies

were substantial contributing factors to the segregation at

all levels of the Buffalo Public School System, and that

this segregative impact was clearly foreseeable by the

Board (Appendix at p. 64a).

12

5. The discriminatory actions of the Board with

regard to admissions at vocational-technical high schools

had caused segregated conditions to exist at a significant

number of those schools (Appendix at pp. 68a-69a).

6. The Board of Education has purposefully

foliowed a policy that has segregated and was intended to

segregate the teacher and administrative staffs in the Buf-

falo Public Schools. The Court cited the failure of the

Board to increase the minority teacher percentage, in any

meaningful amount, in over ten years’ time (Appendix at

p. 76a).

7. The Board of Education and the other City of Buf-

falo officials were encouraged to continue their

segregative actions by the Commissioner of Education's

failure to discharge his responsibilities under the laws of

the State of New York and the Constitution (Appendix at

p. 78a).

8. The Court claimed that the City defendants’ past

action and inaction which have, to a substantial degree,

caused, exacerbated or maintained the segregated

housing conditions, are separate and independent alter-

native grounds for holding them constitutionally liable

for the segregated condition of the schools in Buffalo

(Appendix at p. 114a).

C. Decision of the Court of Appeals

The Circuit Court's decision imposes an affirmative duty to

achieve racial balance in the Buffalo schools.

The District Court found the Buffalo Superintendent of

Schools and the members of the Buffalo Board of Education,

in their official capacities, and the New York State Com-

missioner of Education and the members of the Board of

Regents of the State of New York, in their official Capacities,

13

liable for “intentionally causing and maintaining a segregated

school system” in violation of the equal protection clause of

the Fourteenth Amendment and 42 USC § 1983. Arthur v.

Nyquist, 415 F Supp 904, 969 (W.D. N.Y. 1976). The Circuit

Court affirmed the judgment of the District Court with

respect to the city appellants and reversed the judgment of the

District Court with respect to the state appellants. Arthur v.

Nyquist, 573 F2d 134 (2d Cir 1978).

Appellants argued that the District Court used an

erroneous legal standard in determining that city and state of-

ficials acted with segregative intent. The Circuit Court adopt-

ed the standard used in Hart v. Community, School District

Board of Education, 512 F2d 37 (2d Cir 1975). The Hart stan-

dard provides that:

*** a finding of de jure segregation could be based on

acts of omission or commission undertaken by govern-

ment authorities, which have the “natural and

foreseeable consequence of causing educational

segregation.”

573 F2d at 141.

The Court rejected appellants’ argument that the United

States Supreme Court's vacation and remand of United States

v. Texas Education Agency, 532 F2d 380 (5th Cir 1976) must be

taken to implicitly criticize Hart. Austin Independent School

District v. United States, 429 US 990 (1976) (per curiam). In ad-

dition, the Court implicitly refused to adopt the standard of

Segregative intent espoused in Arlington Heights v.

Metropolitan Housing Development Corp., 427 US 252 (1977).

In applying the Hart standard, the Circuit Court found that

the “natural and foreseeable consequence” of the Buffalo

Board of Education's policies concerning language transfers,

zoning, optional attendance areas and staff recruitment and

assignment was increased segregation of the Buffalo public

schools.

14

Buffalo has seen the racial composition of its citizenry

change dramatically over the past 30 years. Between 1950 and

1970 the total population dropped by 126,000 while the black

percentage rose from 6.5% to 21% (Appendix 81).

In the 1930's and 1940's blacks moved into the lower east

side which is commonly referred to as the Ellicott District.

Since then, the black population increased and moved in a

northeasterly direction. This pattern of residency is clearly

portrayed by viewing Hutchinson-Central High School in

1953, the district high school for most black students. In 1973

Kensington and Bennett were racially balanced with heavy

resident black populations.

This residential pattern is also reflected when one considers

that all the predominantly minority schools, with the ex-

ception of Schools No. 16 and No. 17, are in this area. This is

also clearly reflected in the census figures.

The Buffalo School System has never operated as a dual

system under mandate of law. To the contrary, in 1900 the

New York State Legislature enacted an Anti-Segregation Law

(N.Y. Educ. Law, § 3201 [ McKinney's 1970]). The system as a

general rule has traditionally operated on an assignment basis

that requires children to attend neighborhood schools. This is

not the rule for vocational schools which draw students

voluntarily on a city-wide basis.

As of the 1973-1974 school year, the Buffalo School System

consisted of 77 elementary schools, two middle and four

junior high schools, 7 academic and 6 vocational-technical

high schools. The student enrollment was 61,060. The racial

balance was slightly in excess of 50% majority. There ad-

mitted ly exists racial imbalance in the system as is reflected in

the following figures.

15

TABLE I

ELEMENTARY SCHOOLS 80-100% MINORITY

ENROLLMENT (OCT. 1973)

School (Grades)

6 (PK-6)*

8 (PK-6)*

12 (PK-6)*

16 (PK-6)

17 (PK-6)*

23 (K-5)

31 (K-8)*

Build (former 32)*

(PK-6)

35 (Special)

37 (PK-8)*

39 (PK-6)*

41 (PK-6)*

47 (PK-6)*

48 (PK-5)*

50 (Special)

53 (PK-6)*

59 (K-5)

62 (K-7)

74 (PK-6)*

75 (PK-6)*

90 (K-6)

93 (K-3)*

Minority

801 (100% )

777 (99.9% )

230 (100% )

178 (90% )

465 (99.4% )

697 (91.8% )

828 (99.2% )

575 (99.7% )

76 (96.2% )

809 (99.9% )

927 (100% )

371 (100% )

272 (100% )

396 (99.7% )

99 (100% )

880 (99.9% )

566 (98.3% )

712 (92.5% )

626 (98.9% )

363 (100% )

512 (89.3% )

99 (100% )

Majority

0 (0% )

1 (0.1% )

0 (0% )

19 (10.0% )

3 (0.6% )

62 (8.2% )

7 (0.8% )

2 (0.3% )

3 (3.8% )

1 (0.1% )

0 (0% )

0 (0% )

0 (0% )

1 (0.3% )

0 (0% )

1 (0.1% )

10 (1.7% )

58 (7.5% )

7 (1.1%)

0 (0% )

61 (10.7% )

0 (0% )

Total

* The schools marked with an asterisk are schools that were predominantly

black in 1965 when Commissioner Allen rendered his decision in the Yerby

Dixon Proceeding.

16

TABLE I

ACADEMIC HIGH SCHOOLS

(OCT. 1973)

School Minority Majority Total

Grover 465 (22.7%) 674 (59.2%) 1139

East High 1622 (99.0%) 17(1.0%) 1639

Riverside High 232 (15.1%) 1301 (84.9%) 1533

South Park High 245 (12.7%) 1683 (87.3%) 1928

Bennett 696 (43.3%) 899 (56.0%) 1606

Kensington 827 (43.0%) 1093 (56.8%) 1923

SOURCE: PX 6, at 22.

VOCATIONAL-TECHNICAL HIGH SCHOOLS

(OCT. 1973)

School Minority Majority Total

Fosdick-Masten 576 (98.1%) 11(1.9%) 587

Hutchinson-Central

Technical 223 (19.8%) 902 (80.2%) 1125

McKinley 235 (20.3%) 922(79.7%) 1157

Seneca 222 (20.0%) 891 (80.0%) 1113

Burgard 448 (40.6%) 598 (54.2%) 1103

Emerson 244 (43.6%) 314(56.0%) 560

SOURCE: PX 6, at 23.

17

TABLE III

MIDDLE AND JUNIOR HIGH SCHOOLS

(OCT. 1973)

School Minority Majority Total

*Fillmore Middle 690 (89.0%) 85(11.0%) 775

West Hertel Middle 332 (28.4%) 837(71.6%) 1169

Clinton Junior 846 (100% ) 0 (0% ) 846

*Genesee Humboldt

Junior 932 (90.9%) 93 (9.1%) 1025

202 (15.4%) 1107 (84.6%) 1309

764 (99.6% ) 3 (0.4% ) 767

Southside Junior

Woodlawn Junior

SOURCE: PX 6, at 21.

* Fillmore Middle School and Genesee-Humboldt Junior High School

were opened as majority schools. The first statistical record of racial

breakdowns is 1966. At that time, Fillmore was 42.4 percent minority and

Genesee Humboldt was 31.5 percent minority.

A summary of the preceding tables shows that 22 of the 77

elementary schools were predominantly black. This was also

true of East and Fosdick Masten High Schools, Woodlawn,

Genesee-Humboldt, Clinton Junior High Schools, and

Fillmore Middle School.

Yerby Dixon Proceeding

In 1964, the Commissioner of Education, Dr. James Allen,

in the Yerby Dixon Matter, determined that the Buffalo

Public School System was racially imbalanced and ordered

that Buffalo submit a plan to alleviate said racial imbalance.

In the Opinion and Order the Commissioner says:

“Involved in the ultimate solution to de facto segregation

in a school system, of course, the elimination of

segregated housing, slum conditions and other un-

desirable socio-economic conditions which lie beyond

the control of the Board of Education or of the Com-

missioner.”

Subsequently, Federal District Judge Henderson upheld the

statutory power of the Commissioner to make such an Order

and importantly, made the first judicial determination re-

garding the character of the segregation in the Buffalo School

System.

On page 130 of that decision the Court said:

“Prior to the Commissioner’s Order and adoption of the

resulting plan, the City of Buffalo schools were operated

along neighborhood lines without regard to the racial

composition of the neighborhood which a given school

might be scheduled to serve. Through the years, socio-

economic factors had resulted in a concentration of the

negro population of the city which, in turn, resulted in

several of the city's schools becoming predominantly at-

tended by negro pupils.”

“Such a condition, commonly referred to as de facto

segregation, was and is common under the neighborhood

school system in effect in many cities throughout the

ae: [Offerman v. Nitkowski, 248 F. Supp. 129

(1965)].

High Schools

The thirteen high schools in the System are divided into two

categories, 7 academic and 6 vocational. The academic

schools operate on an assignment district basis and deal in

general education; whereas, the vocational schools accept

students from anywhere in the City and specialize in various

skills depending upon the particular school, in addition to the

general educational components. The ratio of blacks to

whites in each of these schools is shown hereinbefore in Table

II.

19

Only East and Fosdick-Masten High Schools are racially

imbalanced minority schools.

In the early 1950's Fosdick-Masten was an academic high

school with an integrated student population. It was closed as

an academic school and opened as a vocational school with

courses that were attractive mostly to girls. It became com-

monly known as a Girls’ Vocational School. There were no

racial records kept in those days, but from all indications the

school opened integrated. The neighborhood in which the

school was located in subsequent years became over-

whelmingly black. None of the other vocational schools were

as of 1973 more than SO percent minority.

By 1964, East was predominantly minority. But it cannot be

definitely ascertained the actual progression of racial change

yearly from the white school of the early fifties to the black

school of the 1960's. The lower Court found in this regard

“that East is now and has been, at least since 1960, an in-

dentifiably black school”. The first known records indicate

that in the school year 1966, 73 white students transferred out

of East High School. During the ensuing years white students

continued to transfer from East in varying numbers, the

largest being 176 in 1970 (Defendants’ Exhibit 8). This exhibit

shows that during the years 1966-1971, a total of 625 whites

and 530 blacks transferred out of East High School.

A change in this policy was made in 1972, prohibiting white

students in the East High School District from transferring

out for the purpose of taking a language at another school.

This change of policy did not improve the racial balance at

East High School.

There were certain boundary changes in the East High

School district prior to 1966. These boundary changes are set

forth on pages 30-31 of the Decision and Order.

Transfers and Option Zones

The Buffalo School System permitted students to transfer

from one assignment district to another for well-defined

reasons. The District Court recognized the need for such a

policy to provide the flexibility necessary to operate such a

large school system. This transfer policy, in effect for many

years, predated racial considerations in the system. Of

course, racial reasons were never the stated reason on the ap-

plication for transfer. The reasons stated were always

legitimate, e.g., medical reasons accompanied by doctor's cer-

tificates.

The above applies also to option zones.

Junior High and Middle Schools

The Buffalo School System has four junior high schools,

Woodlawn, Clinton, Genesee-Humboldt, and Southside. At

the time of trial, Southside, which was located in a virtually

all white neighborhood, was 11.5% minority. The year

before, it was 15.6%. The lion share of this minority

representation was contrived to make the school integrated.

Clinton, Woodlawn, and Genesee- Humboldt were at the time

of trial virtually all black. Clinton was located in the first all

black neighborhood and was predominantly black from its

inception in the early 1950's. Genesee- Humboldt located in a

changing neighborhood was in 1966, the first year of record

keeping, only 31.5% minority. From the school year 1966 to

1973, Genesee- Humboldt saw its white enrollment drop from

749 to 93. Woodlawn was black from inception. These schools

have been feeders to East High School. They did not have a

language transfer policy.

West Hertel Middle School was opened as an integrated

school (26.1% ) black and here the integration was a result of

action by the Board. Fillmore Middle School was in 1966

21

(42.4% ) black. At the time of trial, it was 88.0% black. From

1966 to 1973 this school lost 452 white students. Fillmore has

also fed into East from inception.

Compliance with State Mandate to Improve Racial Balance

In 1965 Commissioner Allen directed that the “de facto”

segregation (racial imbalance) in the system be corrected. The

school system thereafter did take steps to correct this racial

imbalance. There is little doubt, and the Commissioner at

trial so admitted, that correcting racial imbalance could only

be accomplished through the extensive use of involuntary

bussing.

The School Board, however, did take steps to correct racial

imbalance. At the time of trial, of the thirteen high schools,

only two had more than 50% black student enrollment, six

were racially balanced, and none had less than 10% minority

enrollment. Much of this was accomplished through the use

of boundary changes and by permitting blacks to transfer out

of all black East High School.

At the time of trial approximately 3000 black elementary

students yearly were being transported on a voluntary basis

from predominantly black schools to majority schools. These

students upon graduation could attend the high school which

the receiving school fed into, instead of the high school in his

or her district, most likely East.

In the early 1950's East High School was predominantly

white. Correspondingly, the East High School assignment

district was predominantly white. At this point in time, the

black population was increasing and moving from the

southeast of the City in a northeasterly direction. The East

High School district changed racially because of this dramatic

residential change. The lower Court acknowledges these fac-

tors.

22

Certain languages, such as French, Spanish and Latin, have

been taught at all academic high schools. Because of the

usually small demand for other languages, they were only of-

fered at schools where there is a demand. Students were per-

mitted to transfer to a school where the subject was offered if

they desired.

This policy was formulated without any concern for racial

imbalance but was based on the need to respond affirmatively

to legitimate demands for such courses of study.

In 1960 Polish was dropped at East High School. The

District Judge took judicial notice that many Polish families

reside in this district and would want the course.

The Buffalo School Board purchased 22 portable class-

rooms and located the same at majority schools, enlarging the

capacity of those schools to make room for inner-city black

students for integrative purposes.

Extensive compensatory educational programs have been

initiated with the major emphasis being in the inner-city area.

Improvements of consequence have been made to recruit

black teachers and to promote those already in the system to

higher positions on the administrative staff.

West Hertel Middle Schocl, the only new school con-

structed in the system in the last decade, was changed from a

junior high school before opening in order to better balance

the student body.

Common Council Actions

Under New York State Law, the Buffalo Board of

Education is autonomous. They, however, must rely upon the

City of Buffalo for funding whether it be for operation and

maintenance or capital improvements. The District Court

found that the Common Council by certain intentional

23

discriminatory actions and non-actions, contributed to and

continued the racial segregation in the schools.

The School Board sought initial funding for the West Her-

tel Middle School for the stated purpose of constructing a

junior high school. This school was needed to alleviate over-

crowding at Riverside High School in the northwest section of

Buffalo. When construction was virtually completed, the

School Board for integration purposes changed the com-

ponent to a middle school. For a number of weeks the Com-

mon Council failed to provide the funds necessary for com-

pletion of the school. The District Court found that this

delaying action was racially motivated. Although the money

was eventually appropriated by the Council, the school was

completed, and it opened as an integrated middle school, the

District Court found this was evidence of an invidious intent

to discriminate.

There was also the matter of the portable classrooms. The

Common Council adopted an ordinance prior to the purchase

of the portables by the Board, prohibiting the construction of

additions to school buildings if the addition was of a material

different from the main building. The legality of this measure

was litigated in the state Courts and ultimately held to be

beyond the power of the Council to adopt. Here again the in-

tegrative action became a reality.

The Common Council, although asked by the Board to do

so, never appropriated funds for the planning of additional

middle schools which schools were part of the School Board’s

plan to improve racial balance. The plan called for six such

schools that would cost an estimated six million dollars each.

It is important to note here, that the West Hertel Middle

School was the only new school constructed in a decade

because of the financial problems of the City.

24

The plaintiffs further charged that the Common Council

refused to adopt a housing law prohibiting discrimination in

housing beyond that which is prohibited by the Federal

Government and State of New York. New York State has

probably the most extensive housing law in the country.

Woodlawn Junior High School

Woodlawn Junior High School was built in the early 1960's

after strong urging by the black community. It was located on

East Ferry Street and Michigan Avenue one block east of

Main Street, which at that time was somewhat of an artificial

boundary for blacks and whites. The plaintiffs charged that

the School Board, in choosing this site, knew that the school

would be segregated upon opening. They further charged that

when establishing the district the School Board drew a boun-

dary that assured that the school would open as a segregated

school. The District Court found that because of the recent

migration of blacks into the Woodlawn area (late 1950's),

many of the elementary schools in that area, were all

predominantly black, overcrowded and were not in good

condition. He additionally found that the black community

generally wanted a new school in that area to service the

needs of that area and concluded that based on the evidence,

the School Board was not racially motivated in selecting the

site.

When the school was complete, many hours of discussion

occurred as to what would be the district boundaries. There

were a number of plans submitted by Board members and the

one adopted extended across Main Street into predominantly

white neighborhoods. However, when this plan was adopted,

an option zone was created for the area west of Main Street.

This plan went into effect and when the school opened, it

opened virtually all black.

Staff

Buffalo like New York City is required by State law to give

an examination to all its teacher applicants. In May, 1965,

Commissioner Allen found that there was no substance to the

charge that there was discrimination in the hiring and assign-

ing of teachers and staff in the system. There has never been

any school in the system that had a faculty that was all black.

With the exception of School No. 32, also known as the

BUILD Academy, no school in the system had a faculty of

minority teachers exceeding 32 percent. BUILD Academy is a

school that operates under special agreement between the

school system and the BUILD Association. The BUILD

Association is virtually an all black association and pursuant

to said agreement had a veto power over the faculty. Until the

School Board in the early 1970's adopted a practice of

prohibiting white teachers from transferring out of minority

schools, transfers were permitted on the basis of seniority.

REASONS FOR GRANTING THE WRIT

I. The Circuit Court has intensified a conflict among

the circuits and misapplied applicable decisions of this

Court.

A. The Circuit Court Decision Highlights a Conflict

Among the Circuits as to the Meaning of “Intent” in School De-

segregation Cases.

Lower courts have struggled with the interpretation and ap-

plication of the “purpose or intent to segregate” concept since

it was first stated by this Court in Keyes v. School District No.

1, Denver, Colorado, 413 US 189 (1973). The Second Circuit in

Hart v. Community School Board of Education, 512 F 2d 37 (2d

Cir 1975), held that a “foreseeable consequences test” meets

the requirement of intent established in Keyes. The Fifth,

Eighth and Seventh Circuits have agreed with this in-

26

terpretation. US v. Texas Education Agency, 532 F 2d 380 (Sth

Cir, 1976), vacated sub nom. Austin Independent School

District v. US, 429 US 990 (1976) per curiam; United States v.

School District of Omaha, 521 F 2d 530 (8th Cir, 1975), cert

denied 423 US 946 (1975); US, et al. v. Board of School Com-

missioners of Indianapolis, Indiana, et al., ........... 1978.

The Ninth Circuit has consistently disagreed and required

that racial motivation be proven. Berkelman v. San Francisco

Unified School District, 501 F 2d 1264 (9th Cir, 1974); Johnson

v. San Francisco Unified School District, 500 F 2d 349 (9th Cir,

1974), Soria v. Oxnard School District Board of Trustees, 488 F

2d 579 (9th Cir, 1973) cert denied 416 US 951 (1974).

This Court has addressed the issue of segregative intent

since the Hart decision in 1975. In Washington v. Davis, 426 US

229 (1976), and Village of Arlington Heights v. Metropolitan

H.D. Corp., 429 "JS 252 (1977) this Court held that dispro-

portionate impact is not enough and that a discriminatory

purpose must be shown. This Court later applied the standard

established in these cases to school desegregation cases in

Dayton Board of Education v. Brinkman, US (1977); School

District of Omaha v. US, US (1977); and Brinkman v. Arm-

strong, US (1977).

In affirming the District Court's decision, the Second Cir-

cuit has reaffirmed its foreseeable consequence standard of

intent.

B. The Courts Below Misinterpreted Decisions of this

Court.

The District Court in its original decision of April 30, 1976

chose to follow the method of determining intent adopted by

the Second Circuit in Hart v. Community School Board, §\12 F

2d 37 (2d Cir, 1975) that it is enough to show “that the

probable and foreseeable result of defendants’ acts was segre-

gation.”

27

In reviewing the evidence under six elements of the plain-

tiffs’ case, the Court determined that because the activities in

question had a naturally foreseeable impact upon racial im-

balance, they were, therefore, done with a segregative or dis-

criminatory intent or purpose.

City appellants moved the District Court to reconsider its

original decision in light of the new and stricter standards

laid down by the Supreme Court in Washington v. Davis and

Arlington Heights to be followed by the Courts in deciding

questions of segregative intent. The District Court agreed and

by decision and order dated March 1, 1977, reaffirmed its

original decision in all respects.

The District Court in its reconsideration opinion stated:

“To the extent that the Hart standard suggested that mere

cause and effect, mere analysis by way of a ‘reasonable

and foreseeable consequences’ test which amounts to a

finding that disproportionate impact is sufficient to im-

pose liability for school segregation under the fourteenth

amendment, it is refuted by Washington v. Davis and

Arlington.”” (Appendix at 154a).

The District Court also said it understood that the Supreme

Court had made clear the “necessity” of establishing that the

“motive behind actions or inactions and not the resultant im-

pact alone, is determinative when a constitutional violation is

alleged.” (Appendix at p. 154a).

However, in approaching its reconsideration, the Court

said the issue was whether

“the defendants intentionally acted or refused to act so as

to segregate and maintain the segregated conditions of

the Buffalo Public School System, or did it find a con-

stitutional violation on the basis of disproportionate

racial impact alone, without a finding of racial dis-

criminatory intent.” (Appendix at p. 155a) (Emphasis

added).

erm

28

There are two problems with this formulation. The first is

that the District Court continued to view omissions, failures

to act, or refusals to act by the School Board as proper

evidence justifying an inference of segregative intent. Ap-

pellants maintain that omissions in themselves are not

relevant evidence of a segregative intent unless the same de-

gree of deliberate and factual segregative motive is clearly

established. Second, the Court misapplied the holding of

Washington v. Davis, supra. The District Court said the issue

was whether it had found a constitutional violation on the

basis of disproportionate racial impact alone, without a find-

ing of racial discriminatory intent (Appendix at p. 155a).

Washington held that in cases alleging a constitutional

violation, there must be a specific finding of a discriminatory

purpose and that official actions having a disproportionate

racial impact cannot in themselves be a basis for inferring

that such actions were motivated by a purpose to discriminate

or segregate on the basis of race. This clarification is im-

portant because City appellants maintain that in both its

original decision and its reconsideration, the District Court in

fact found a discriminatory intent in regard to a significant

portion of the Buffalo Public School System on the sole basis

of the alleged disproportionate racial effect of certain acts or

omissions of the School Board and City Council.

In Arlington, this Court clarified the tests for the required

finding of discriminatory purpose or motive. Although racial

impact could be a starting point, it seems clear from the other

indicia mentioned that more than an objective reasonable

man standard of legal fault of negligence cases is necessary.

The Court in Arlington specifies legislative history, un-

explained and abrupt departures from past practice and per-

sonal admissions of the target public officers as a basis for the

required inference of an illicit motive. Arlington, supra,

p. 13. Such evidentiary tests mean that the character of the

racial purpose justifying a finding of liability is of a sub-

29

jective and not objective quality. Thus, by indicating as clear-

ly as it has in Arlington that the illicit purpose must have exist-

ed and motivated the official segregative actions, the Court

implicitly rejects a rule that would impose liability as if the

officials were so motivated despite, in fact, being racially

neutral. A brief review of the evidence and conclusions of the

District Court illustrates its findings and conclusions are

founded upon the objective foreseeable effect test of Hart and

not the subjective motive or purpose test of Arlington.

Although the District Court stated that it used the standard

of intent announced in Keyes in addition to the foreseeable

consequences test, (App. p. 22a) the Circuit Court makes it

clear that both courts used the objective, foreseeable con-

sequences test exclusively, in determining liability. The Cir-

cuit Court stated,

“We are confronted here with a pattern of action and

inaction the natural and foreseeable consequence of

which is the increased segregation of the Buffalo Public

Schools.” (App. p. 182a).

The results of the lower Courts’ use of the objective reason-

able man standard are conclusions that the Buffalo Board of

Education and City of Buffalo officials intentionally

operated a segregated school system in violation of plaintiffs

civil rights based upon the effect or impart alone of govern-

mental actions or the foreseeable results of government in-

action. This result is clearly contrary to this Court's holdings

in Washington v. Davis, supra, Arlington Heights, supra, and

Dayton.

The use of this foreseeable consequences test broadens the

scope of the violation without the necessary considerations

mandated by this Court in Dayton Board of Education v. Brink-

man, 433 U.S. 406 (1977). It is possible to find systemic

segregation based upon foreseeable impact or possible con-

sequences without having to find actions or conduct which

was intended to effect the entire system.

30

C. The District Court misinterpreted prior law in its use of

evidence related to independent governmental actions as fur-

thering discrimination in residential housing patterns within

the City.

Throughout the District Court’s opinion and particularly at

section IV-H (Appendix at p. 10la), the Court relies ex-

tensively upon the actions of the United States Government,

the Federal Housing Administration in particular, the Buf-

falo Municipal Housing Authority and the “Real Estate In-

dustry”, none of which were parties to the action, to provide a

factual basis for a finding of discriminatory intent and, there-

fore, a segregated school system. This analysis is without legal

foundation and further, the conclusions of segregative intent

and a dual system thus derived are not supported by the

evidence upon which the District Court relied.

The District Court relied upon activities of the above stated

entities to supplement its finding that the racial concentra-

tions in Buffalo's residential housing patterns were not the ag-

gregate result of choices by private individuals but rather that

the creation of racial ghettoes was directly attributable to the

combined policies of the real estate industry, the Federal

Government and the Buffalo Municipal Housing Authority.

Therefore, in the District Court's view, the Buffalo Public

School System’s long standing neighborhood school policy

could not be considered as racially neutral. Since the segre-

gated residential patterns outlined by the District Court were

thus in the Court's eyes the result of governmental action, for

Fourteenth Amendment purposes, it follows, according to the

District Court, that the racial imbalances thereby generated

within the respective public schools were similarly inspired by

this hybrid form of state action (Appendix at p. 113a).

Further, by applying the animus of racial discrimination to

the motives and purposes of these various unrelated public

and private organizations, the Court finds that such racial

31

separation within the Buffalo Public School System resulted

from state action animated by segregative intentions, thereby

further justifying its conclusion that the City defendants,

although separate and distinct from the aforementioned agen-

cies, maintained an unconstitutional school system.

Such judicial reasoning is unsupported in law or fact. To

hold the defendant school Board responsible for the conduct

of such outside groups and agencies over a period beginning

over 40 years prior to trial is clearly erroneous. Such an

analysis was invoked in other recent desegregation cases most

notably, Hart v. Community School Board, 383 F. Supp. 699

(E.D.N.Y. 1974) and Oliver v. Kalamazoo Board of Education,

368 F. Supp. 143 (W.D. Mich. 1973). But the use of unrelated

governmental conduct to bolster a finding of state action has

not been sanctioned by this Court* and specific actions cited

by the District Court below are too insubstantial and remote

even if such actions are held to be legally material. In

Milliken v. Bradley, 418 U.S. 717 (1974) this Court took care to

state that it had not relied upon “testimony pertaining to

segregated housing . . . [and] accordingly .. . the case

does not present any question concerning possible state

housing violations. Milliken, supra at 728 N.7.

City appellants also submit that the affirmances of the

decisions in Hart and Oliver, supra, by the Second Circuit and

* Justice Powell's concurrence in Austin Independent School District v.

United States is instructive:

“The principal cause of racial and ethnic imbalance in urban public

schools across the country—North and South—is the imbalance in

residential patterns. Such residential patterns are typically beyond the

control of school authorities. For example, discrimination in

housing—whether public or private—cannot be attributed to school

authorities. Economic pressures and voluntary preferences are the pri-

mary determinants of residential patterns." (Emphasis added) 429 U.S.

990 (1976).

32

the Sixth Circuit respectively, expressly refrained from

reliance upon the housing analyses used by the District

Courts.

The District Court sought to justify its reliance upon the

housing evidence by using it to reject defendants’ position

that such housing patterns caused the racial imbalances in the

school system. Regardless of the District Court's rationale, it

is clear from its opinion and the plaintiffs’ proof that the

governmental policies claimed to have caused segregated

housing patterns were crucial to both the plaintiffs’ case and

the District Court's findings. For without a linkage between

the evidence concerning residential housing patterns and the

School Board's educational policies, the District Court's

other findings of segregative purpose are without meaning.

This is so because those factors, addressed throughout the

District Court’s opinion, could not alone account for the

degree of racial imbalance in various schools within the

system so heavily relied upon by the District Court in drawing

its conclusion that the entire Buffalo Public School System

was unconstitutionally segregated.

This fallacy is especially evident in the District Court's

analysis of this part of the case. In sourthern school

desegregation cases which operated dual school systems un-

der positive law, school boards were obliged to redraw school

boundaries after the Brown decision of 1954. But it was

usually the case that similar de jure segregation existed in

housing in such communities as well. Thus, those boards

could not create so-called racially neutral neighborhood

school districts.

This circumstance stands in dramatic contrast to the

situation in northern cities, especially like Buffalo in New

York State, that have no history of de jure segregation either

in housing or schools. Buffalo's public school attendance

zones were generally established long before the problem of

33

racial discrimination in either housing or schools became an

issue. Thus, it was the gradual change in housing patterns that

in turn created racial imbalances in the respective schools and

not a policy of the Board of Education to alter attendance

zones to lock minority students into certain schools.

It is, therefore, critical that housing arguments relied upon

by the Court be carefully reviewed. However, the Circuit

Court failed to consider the issue in its opinion.

I}. The Circuit Court misapprehended the legal

responsibilities of the State and City Defendants with

respect to education and applied inconsistent standards

of intent to the City and State Defendants.

(A) The Legal Responsibilities for Education of the Board

of Regents, Commissioner of Education and the Common Coun-

cil of the City of Buffalo.

The powers of the Board of Regents and the Commissioner

of Education are described in Judge Curtin’s Decision (A-

78a). Full power over education is constitutionally vested in

the State and specifically in the Department of Education

which “is charged with the general management and super-

vision of all public schools and all of the educational work of

the State,” NY Education Law, Sec. 101. The Appellant

Board of Regents is the governing body of the University of

the State of New York, NY Education Law, Sections 201 and

202. The Board of Regents is also the statutory head of the

Department of Education, and the Commissioner of

Education, who serves at the pleasure of the Board of

Regents, is the chief administrative officer of the department,

NY Education Law, Sections 101 and 303.

The Commissioner has the responsibility for enforcing all

laws relating to education and for executing all educational

policies adopted by the Board of Regents. He has general

supervision over all elementary and secondary schools, in-

34

cluding those in the public school system of Buffalo. The

Commissioner is also granted judicial authority to hear ap-

peals from aggrieved persons, and his decision “‘shall be final

and conclusive, and not subject to question or review in any

place or court whatever,” NY Education Law, Section 310 (A-

79a); and the Regents may adopt rules giving the Com-

missioner such additional powers and duties as may be

required for the effective administration of the State system

of education, NY Education Law, Section 301.

Section 306 of the NY Education Law gives the Com-

missioner the power to remove any school officer or member

of a board of education who willfully disobeys any decision

or order of the Commissioner of Education and to withhold

from any district or city its share of the public money of the

State for such disobedience.

The Board of Education for the City School District for the

City of Buffalo, New York is a creature of State law and its

members perforce are State officers. Board of Education

members are not agents of the City government nor can the

City exercise control over them.

The Common Council of the City of Buffalo is the City’s

legislative body and by virtue of State law cannot exercise any

legislative role in the formulation of educational policies in

the City of Buffalo. Although required by law to make an an-

nual lump sum appropriation to the Board of Education so

that the Board can discharge its responsibility to the pupils of

the Buffalo Public School System, the New York State

Education Law and the State courts make it clear that the

Common Council cannot mandate how the Board of

Education is to use the money (See Section 2576 of the NYS

Education Law and Fuhrman v. Graves, 235 NY 77, 138 NE

743 [1923}]).

35

The Circuit Court, in its March 8, 1978 decision, treated the

Buffalo Board of Education and the City of Buffalo’s Com-

mon Council as a single entity, the “City Defendants”. They

concluded that it is difficult “to imagine a set of facts, short

of public admission of wrong doing, which would be more

Suggestive of intentional discrimination.” Almost every act

enumerated by this Court to substantiate this statement was a

policy of the Buffalo Board of Education and as such was not

subject to the control of the Common Council or other City

officials.

It is clear that in New York State education is a State func-

tion with the ultimate responsibility vested in the Board of

Regents and the Commissioner of Education. The City of

Buffalo cannot be held derivatively liable for any judicially

determined segregative acts of the Board of Education.

(B) The Circuit Court Applied Inconsistent Standards of

Intent to the City and State Defendants.

Assuming for the purpose of this argument, that the ob-

jective, foreseeable consequences standard is correct, it is

clear that the Circuit Court did not apply this standard

consistently.

In finding the Buffalo Common Council guilty of

segregative intent, both the Circuit Court and the Trial Court

relied heavily upon the Common Council’s failure to

adequately fund programs which would have encouraged

racial integration. Although the Council’s record with respect

to funding may be poor, only sheer speculation could lead

one to the conclusion that if additional funds had been

provided to the Board, they would have been used by the

Board to desegregate the Buffalo Public School System.

As previously stated, the Circuit Court and the District

Court applied a strict “foreseeable consequences” test from

36

the Court of Appeal’s prior decision in Hart. While it may

reasonably be maintained that there was substantial evidence

of overt bigotry in occasional actions by the Common Coun-

cil, as was revealed in the portable classroom controversy, no

causative relationship was shown between that unworthy con-

duct and the segregated character of the school system.

The Circuit Court, in analyzing the Commissioner of

Education's role, applied a less demanding standard than

enunciated in Hart.

Referring to the State’s role, the Circuit Court quoted its

previous decision in Hart:

“We assume mere inaction, without any affirmative ac-

tion by the school authorities, allowing a racially

imbalanced school to continue, would amount only to de

facto rather than de jure segregation. To argue otherwise

would be to adopt the strictly objective view of

segregative intent . . . in effect making all continued

toleration of segregation de jure.”

This statement is correct in a situation where there is mere

inaction and no corresponding duty to act. The Circuit Court

in Judge Gurfein’s opinion in Hart v. Community School Board

of Education, New York School District No. 21, 512 F 2d 37 (2

Cir 1975) differentiated between ‘‘mere inaction without any

affirmative action” and “omissions made by governmental

authorities” (P. 50) or “inaction in the face of tendered

choice.”’ (P. 51). The instant case presents a clear situation of

a government omission or failure of the State Defendants to

fulfill an affirmative obligation to act. If the Buffalo Public

School System was guilty of segregating its schools, then the

Commissioner had a duty to enforce the federal and state

Constitutions and the policy statements of the Board of

Regents with respect to segregation in New York State

schools. The record shows that the Commissioner was well

aware of his powers under section 306 of the NYS Education

Law and yet his office failed to use these powers.

37

The Commissioner’s Office was given choices of actions

which could have resulted in less segregation of the Buffalo

Public School System and refused to take those actions. If as

the Circuit Court found, the District Court did noterr infind- ©

ing that given the chosen policies of the state appellants, it

was foreseeable that the Buffalo schools might remain

segregated for an extended period of time, then applying the

standard enunciated in Hart, the finding of the trial court

that:

‘In the final analysis, the State defendants are entrusted

with the authority over and responsibility for the

educational system in New York State. They must be held

accountable for their actions and omissions that allowed

and encouraged the BPSS’s increasingly severe

segregation [A-100a]”’

should be affirmed.

The Circuit Court used a very subjective test when

considering the inaction of the Commissioner of Education.

The Court refers to the personal health of the Commissioner

and “legitimate policy considerations” for absolving the

Commissioner of any responsibility.

The Commissioner of Education heads a large department

with an extensive administrative staff. As the District Court

judge stated in his opinion:

“Mr. Nyquist’s excuse for not having brought a show

cause order to make the Yerby Dixon decision a final or-

der, that he was incapacitated by a heart attack, is not

persuasive. The State’s authority cannot be so dependent

on the health of any one person, and New York State law

authorizes the Deputy Commissioner to fill in for a

disabled Commissioner.”

The Circuit Court’s subjective consideration of one of-

ficial’s role and excuses should not be determinative of the

State agency’s intent and is contrary to the Circuit Court’s ex-

pressed standard of intent.

38

The Seventh Circuit Court of Appeals in its order on

remand from the United States Supreme Court in the case of

US v. Board of School Commissioners of the City of In-

dianapolis, 573 F.2d 400 (7th Cir. 1978), made this

formulation employing the Hart standard:

“It is clear, therefore, that discriminatory purpose for

constitutional analysis is to be gleaned not from in-

dividual officials but from the relevant governmental in-

stitutions. As a subjective test would be impossible to ap-

ply in such circumstances, the courts are driven to adopt

an objective criterion in determining whether the

challenged state action is imbued with a segregative in-

tent or purpose. Such criterion must include an

examination of the institutional policy that underlies the

action.”

There is no evidence in the record of any “legitimate policy

consideration” that would allow the Commissioner to do

anything other than what was found by the Trial Court to be

his express duty in the circumstances. Judge Curtin found

upon reconsideration that:

“from the Commissioner’s actions over this extended

time period, that contrary to the lip service paid in-

tegration, he intended that the situation continue

unabated.” (A-159a).

The Circuit Court and the Seventh Circuit have spoken out

against a purely subjective test. The Seventh Circuit in its

recent /ndianapolis decision, stated:

“[A subjective] test would pose an impenetrable eviden-

tiary barrier for plaintiffs, for in an age when it is un-

fashionable for state officials to openly express racial

hostility, direct evidence of overt bigotry will be im-

possible to find. Because a subjective test fails to measure

the presence of discriminatory purpose when officials act

discreetly, it is an outdated tool in the enforcement of the

Equal Protection Clause.”

ihn

39

The Seventh Circuit Court like the Second Circuit Court in

Hart recognizes the ultimate reality that in a world like ours

which demands effective action in the face of formidable

illegal challenge, words are not enough.

In conclusion, it is clear that there is no adequate ex-

planation in the record for the Commissioner's failure to im-

plement the Board of Regent’s 1962 Desegregation Policy

during the many years since that time.

Conclusion

This Court has made it clear since the Keyes case that a

federal court conclusion of unconstitutional segregation in

public schools must be based upon findings that schvol of-

ficials purposefully or intentionally acted to segregate

students. Since that time, the Circuit Court stated, “. . . a

number of divergent views on the meaning of ‘segregative in-

tent’ have developed, which range from the highly subjective

to the highly objective”. App p. 17Sa Opinion, 2nd Circuit.

The Circuit Court in its opinion has stated that they have

attempted to strike a balance between these competing

theories in its foreseeable consequence test set forth in the

Hart case. Although stating that they have considered

Washington v. Davis and Arlington Heights, the Circuit Court

maintains that the “foreseeable consequences” test is con-

sistent with these decisions. This Court's decisions in Dayton,

Omaha and the Milwaukee case strongly suggest that a more

subjective standard is the correct test.

If this Court, in its recent decisions, has definitively

established the test to determine the standard of intent then

the Circuits must be told what the proper test is. The issue of

school segregation is too important an issue to allow con-

fusion as to the proper standard to continue to exist.

40

Petitioners pray that a Writ of Certiorari be granted to

review the judgment and opinion of the United States Court

of Appeals for the Second Circuit.

Respectfully submitted,

JOSEPH P. MCNAMARA,

Corporation Counsel,

1100 City Hall,

No. 65 Niagara Square,

Buffalo, New York 14202,

Attorney for Petitioners.

Of Counsel:

Patricia Pancoe,

William E. Carey.

APPENDIX A

Order Adding Parties Defendant and

Amending Title of Action

At a Motion Term of the United States District Court for the

Western District of New York held in the U.S. Court-

house, Buffalo, New York on the 8th day of April, 1974.

Present: HON. JOHN T. CURTIN, District Judge.

UNITED STATES DISTRICT COURT

Western District of New York

GEORGE ARTHUR, NORMAN GOLDFARB, WILLIAM

and WILHELMINA P. SEALES, JOHN MEDIGE, and

THE CITIZENS COUNCIL FOR HUMAN RELATIONS,

INC., and NATIONAL ASSOCIATION FOR THE AD-

VANCEMENT OF COLORED PEOPLE, BUFFALO

BRANCH,

Plaintiffs,

against

EWALD P. NYQUIST, COMMISSIONER OF EDUCATION,

THE BOARD OF REGENTS OF THE STATE OF NEW

YORK, JOSEPH MANCH, SUPERINTENDENT OF

SCHOOLS OF THE CITY OF BUFFALO, THE BOARD

OF EDUCATION OF THE CITY OF BUFFALO,

| Defendants.

Civil Action No. 1972-375

The plaintiffs having moved the Court for an order making

the Common Council of the City of Buffalo and its members

as a party defendant, and the motion having been returnable

on April 8, 1974, and the defendants JOSEPH MANCH,

SUPERINTENDENT OF SCHOOLS OF THE CITY OF BUF-

;

LO PS

2a

Appendix A—Order Adding Parties Defendant

and Amending Title of Action.

FALO and THE BOARD OF EDUCATION OF THE CITY

OF BUFFALO having appeared by Anthony Manguso, Esq.,

Corporation Counsel, City of Buffalo by Anthony Gregory,

Assistant Corporation Counsel, and the defendants EWALD

P. NYQUIST, COMMISSIONER OF EDUCATION, State of

New York and THE BOARD OF REGENTS OF THE STATE

OF NEW YORK having appeared by Louis J. Lefkowitz, At-

torney General of the State of New York, Jean M. Coon,

Assistant Solicitor General, upoi the basis of an affidavit

sworn to April 4, 1974 wherein no objection was made to the

addition of the Common Council as a party but only if the

Mayor of the City of Buffalo is also added as a party defen-

dant, and the plaintiffs having orally moved the Court upon

the return day to add the Honorable Stanley M. Makowski,

Mayor of the City of Buffalo as an additional party de-

fendant, and it appearing to the Court that said Common

Council and Mayor of the City of Buffalo are persons whose

presence is needed for a complete and just adjudication of the

issues presented in this action, it is

ORDERED that the Common Council of the City of Buf-

falo and its members and the Mayor of the City of Buffalo,

Stanley M. Makowski, be made parties defendant to this ac-

tion, and it is further

ORDERED that the title of the within action shall be

amended as follows:

3a

Appendix A—Order Adding Parties Defendant

and Amending Title of Action.

UNITED STATES DISTRICT COURT

Western District of New York

GEORGE ARTHUR, NORMAN GOLDFARB,

WILLIAM and WILHELMINA P. SEALES, JOHN

MEDIGE, and THE CITIZENS COUNCIL FOR

HUMAN RELATIONS, INC., and NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, BUFFALO BRANCH,

Plaintiffs,

against

EWALD P. NYQUIST, COMMISSIONER OF

EDUCATION, THE BOARD OF REGENTS OF THE

STATE OF NEW YORK, JOSEPH MANCH, SUPER-

INTENDENT OF SCHOOLS OF THE CITY OF BUF-

FALO, THE BOARD OF EDUCATION OF THE CITY

OF BUFFALO, STANLEY M. MAKOWSKI, MAYOR

OF THE CITY OF BUFFALO, and DELMAR L. MIT-

CHELL, RAYMOND LEWANDOWSKI, GUS FRANC-

ZYK, ALFREDA W. SLOMINSKI, WILLIAM J.

DAURIA, JOSEPH S. FORMA, MICHAEL Mc-

CARTHY, WILLIAM B. HOYT, GEORGE K. AR-

THUR, RICHARD F. OKONIEWSKI, HORACE C.

JOHNSON, JOHN A. RAMUNNO, ANTHONY M.

MASIELLO, DANIEL J. HIGGINS and WILLIAM A.

PRICE, constituting the members of the COMMON

COUNCIL OF THE CITY OF BUFFALO,

Defendants.

4a

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

ORDERED thai the defendants, STANLEY M.

MAKOWSKI, MAYOR OF THE CITY OF BUFFALO and

the COMMON COUNCIL OF THE CITY OF BUFFALO shall

serve their answer to the complaint herein within twenty (20)

days after the entry of this order.

APPENDIX B

Decision and Order Granting Plaintiffs’ Motion

to Amend the Complaint etc.

UNITED STATES DISTRICT COURT

Western District of New York

GEORGE ARTHUR, et al.,

Plaintiffs,

VS.

EWALD P. NYQUIST, et ai.,

Defendants.

‘

Civ- 1972-325

APPEARANCES:

RICHARD F. GRIFFIN, ESQ., Buffalo, New York, for

Plaintiffs.

Sa

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

LOUIS J. LEFKOWITZ, ESQ., Attorney General of the

State of New York (RUTH KESSLER TOCH, ESQ., Solicitor

General, & JEAN M. COON, ESQ., Assistant Solicitor

General, of Counsel), Albany, New York, and (EUGENE A.

PAMFIL, ESQ., Assistant Attorney General, of Counsel),

Buffalo, New York, for the Commissioner of Education, and

the Board of Regents of the State of New York, defendants.

LESLIE G. FOSCHIO, ESQ., Corporation Counsel of the

City of Buffalo (ANTHONY GREGORY, ESQ., Assistant

Corporation Counsel, & FRANK A. SEDITA, JR., ESQ.,

Assistant Corporation Counsel, of Counsel), Buffalo, New

York, for Mayor Stanley M. Makowski, Superintendent of

Schools Eugene T. Reville, The Board of Education, and the

Common Council of the City of Buffalo, defendants.

When this school desegregation suit was filed in June of

1972, the plaintiffs named the Buffalo Board of Education,

Dr. Manch, the Superintendent of Schools, the State Board of

Regents, and Mr. Nyquist, the State Commissioner of

Education, as defendants. Later, the plaintiffs moved to

amend their complaint to add the Common Council of the

City of Buffalo and its members, and the Mayor of Buffalo as

party defendants. By order dated April 29, 1974, this motion

was granted.

The trial of this action was held in October of 1974. The

State defendants for the first time in their post-trial brief

(Post-Trial Brief for State Defendants, at 3-5), argue that the

Board of Education and the State Board of Regents are not

“persons” within the scope of 42 U.S.C. § 1983, and,

therefore, that the court lacks subject matter jurisdiction un-

der 28 U.S.C. § 1343(3) with respect to them. There is no

question that Dr. Manch and Mr. Nyquist were properly

named as parties. .

6a

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

in 1972, when this case was instituted, the law was clear

that municipalities could not be sued for damages under

§ 1983, since they were not “persons.” Monroe v. Pape, 365

U.S. 167 (1961). However, several court decisions interpreted

Monroe to allow suits solely for equitable relief, such as the

plaintiffs seek here, against municipalities. See Schnell v. City

of Chicago, 407 F.2d 1084 (7th Cir. 1969); Adams v. City of

Park Ridge, 293 F.2d 585 (7th Cir. 1961). This interpretation

of the Monroe case was rejected in June 1973, when the

Supreme Court decided the case of City of Kenosha v. Bruno,

412 U.S. 507 (1973). In that case, the Court stated:

We find nothing in the legislative history discussed in

Monroe, or in the language actually used by Congress, to

suggest that the generic word “person” in § 1983 was in-

tended to have a bifurcated application to municipal cor-

porations depending on the nature of the relief sought

against them. Since, as the court held in Monroe,

“Congress did not undertake to bring municipal cor-

porations within the ambit of” § 1983, [365 U.S.] at 187,

they are outside of its ambit for purposes of equitable

relief as well as for damages. The District Court was

therefore wrong in concluding that it had jurisdiction of

appellees’ complaints under [28 U.S.C.] § 1343.

Id., at 513.

Since the Kenosha case, several courts have explicitly ruled

that school boards are not “persons” under § 1983. See Monell

v. Social Services of the City of New York, Docket No. 75-7333

(2d Cir., March 8, 1976); Adkins v. Duval County School

Board, 511 F.2d 690 (Sth Cir. 1975); Harkless vy. Sweeny In-

dependent School District, 388 F. Supp. 738 (S.D.Tex. 1975).

Ta

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

The plaintiffs have now requested leave of this court to.

amend their complaint to add as parties-defendant in their in-

dividual and official capacities the present Superintendent of

the Buffalo Schools, and the present members of the Buffalo

Board of Education and the State Board of Regents.

The State defendants argue that this action by the plaintiffs

will not cure the jurisdictional defect because of the recent

Supreme Court case of Rizzo v. Goode, 44 U.S.L.W. 4095 (Jan.

20, 1976), which, in the State defendants’ words, “held that

for jurisdiction under § 1983, it is necessary to have as parties

defendant the actual persons or officials who acted to deprive

plaintiffs of constitutional rights.” (State Defendants’ At-

fidavit in Opposition, at 2). In addition, the City and State at-

torneys state that since these individuals would now be sued

in their individual capacities, they do not represent them.

The State defendants read too much into the Supreme

Court's decision in Rizzo v. Goode, supra. The Supreme Court

said in Rizzo that, before injunctive relief may issue to

remedy the deprivation of constitutional rights, there must be

a showing that the responsible authorities played an af-

firmative part in the deprivation of those rights. At trial in

Rizzo, there was a showing that constitutional rights were

violated, but no showing that the named defendants par-

ticipated.

The situation in Rizzo is different from the instant case,

where plaintiffs allege that the State and City defendants

denied them the equal protection of the laws by creating and

maintaining segregated schools in the City of Buffalo, and

where, at trial, plaintiffs attempted to prove that the Board of

Education, through various devices, had segregated and

maintained segregation in the schools and the staffs of Buf-

8a

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

falo Public School System, and that the State defendants, who

have the responsibility under the New York Constitution for

public education, allowed the segregation to continue. The

Supreme Court itself noted this difference between school

desegregation cases and cases like Rizzo, when it said that

there is a

critical factual distinction between their case

[Rizzo] and the desegregation cases decided by this

Court. In the latter, segregation imposed by law had been

implemented by state authorities . . . whereas in the in-

stant case [Rizzo] the District Court found that the

responsible authorities had played no affirmative part in

depriving . . . any constitutional rights.

Id., at 4100.

Therefore, the defendants’ reliance on Rizzo is misplaced.

The Second Circuit in Monell, supra, has stated that

“(t}here is no doubt that municipal and state officials, sued in

their official capacities, are ‘persons’ within the meaning of

§ 1983 when sued for injunctive or declaratory relief.” (Slip

Op., at 2420). There is a recognition here of the fiction

inherent in the case of Ex Parte Young, 209 U.S. 123 (1908), in

which the Supreme Court ruled that although a state cannot

be sued under the eleventh amendment, a suit can be main-

tained against a state official. The requirement of suing “per-

sons” instead of municipalities or agencies under § 1983 is a

further extension of this same fiction. Although a school

board itself cannot be sued, individual members can be. And,

once the individuals are named, the suit proceeds as if it were

against the school board as a separate entity. Indicative of this

fiction is the statement of the Supreme Court in Keyes v.

School District No. 1, 413 U.S. 189, 210-211 (1973):

9a

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc,

The courts below attributed much significance to the fact

that many of the Board's actions in the core city area an-

tedated our decision in Brown. We reject any suggestion

that remoteness in time has any relevance to the issue of

intent. If the actions of school authorities were to any

degree motivated by segregative intent and the

segregation resulting from those actions continues to

exist, the fact of remoteness in time certainly does not

make those actions any less “intentional.”

In other words, it is the actions of the school board, and

not just the present board members, that are considered by

the courts. If the law were otherwise, a school board or other

entity could escape responsibility by a change of members

whenever suits arose.

Federal Rule of Civil Procedure 15(a) states that “leave [to

amend] shall be freely given when justice so requires.” Rule

15(c) allows an amendment that changes the party against

whom a claim is asserted to relate back to the date of the

original complaint if the claim in the amended complaint

arose out of the conduct set forth in the original complaint

and

the party to be brought in by amendment (1) has received

such notice of the institution of the action that he will not

be prejudiced in maintaining his defense on the merits,

and (2) knew or should have known that, but for a

mistake concerning the identity of the proper party, the

action would have been brought against him.

Rule 19 states:

A person who is subject to service of process and whose

joinder will not deprive the court of jurisdiction over the

10a

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

subject matter of the action, shall be joined as a party in

the action if (1) in his absence complete relief cannot be

accorded among those already parties. .. .

Rule 21 states:

Misjoinder of parties is not ground for dismissal of an

action. Parties may be dropped or added by order of the

court on motion of any party or of its own initiative at

any stage of the action and on such terms as are just.

In addition, 28 U.S.C. § 1653 states:

Defective allegations of jurisdiction may be amended,

upon terms, in the trial or appellate courts.

Most notably, in Ingraham v. Wright, 498 F.2d 248 (Sth Cir.

1974), some minority students sued the Dade County School

Board and its superintendent seeking injunctive and

declaratory relief against the use of corporal punishment. At

the end of the trial in the district court, the defendant

motioned to dismiss under Federal Rule of Civil Procedure

41(b). The district court granted the motion.

The plaintiffs appealed and, at the circuit court, the defen-

dant school board argued that the court was without jurisdic-

tion, citing Kenosha, supra. The Fifth Circuit stated:

The District Court should on remand grant the likely

request of plaintiffs to add the individual members of the

Dade County School Board as parties defendant.

Ingraham, supra, at 252.

In this case, had the individual defendants been properly

named originally, the present members of the Board of

Education and the Board of Regents would automatically

have been substituted. Federal Rule of Civil Procedure 25(d).

lla

Appendix B—Decision and Order Granting Plaintiffs’

Motion to Amend the Complaint etc.

Given the fact that in 1972, when this suit was instituted, it

was not clear that a school board was not a “person” under

§ 1983, and given the fact that no defendant contested this

point until the State defendants raised it in their post-trial

brief, and that all defendants have been fully represented by

counsel each step of the way, we feel that it would be a

manifest injustice to deny the plaintiffs’ motion. Plaintiffs

have stipulated that they do not, and will not, seek attorneys

fees from the defendants as private citizens in their individual

capacities. Each individual defendant, as a member of either

the Buffalo Board of Education or the New York State Board

of Regents, is, and has been, fully aware of this lawsuit. As

the Supreme Court stated in Mullaney v. Anderson, 342 U.S.

415, 417 (1952), a case in which the plaintiffs petitioned for

leave to add two new party plaintiffs in the Supreme Court,

the Court stated:

To dismiss the present petition and require the new plain-

tiffs to start over in the District Court would entail

needless waste and runs to counter effective judicial ad-

ministration—the more so since, with the silent con-

currence of the defendant, the original plaintiffs were

deemed proper parties below.

Id., at 417.

Attorneys for the State and City defendants have indicated

that no new offer of evidence will be forthcoming if this

motion is granted. For all the reasons stated above, plaintiffs’

motion to amend the complaint is granted.

So ordered.

JOHN T. CURTIN,

United States District Judge.

Dated: April 30, 1976

>. ' Iw Se ee

12a

APPENDIX C

Decision and Order Dated April 30, 1976

UNITED STATES DiSTRICT COURT

WESTERN DISTRICT OF NEW YORK

GEORGE ARTHUR, NORMAN GOLDFARB, WILLIAM

and WILHELMINA P. SEALES, JOHN MEDIGE, and

THE CITIZENS COUNCIL FOR HUMAN RELATIONS,

INC. and NATIONAL ASSOCIATION FOR THE AD-

VANCEMENT OF COLORED PEOPLE, BUFFALO

BRANCH

Plaintiffs,

VS.

EWALD P. NYQUIST, individually and as Commissioner of

Education of the State of New York, THE BOARD OF RE-

GENTS OF THE STATE OF NEW YORK, THOMAS M.

BLACK, CARL H. PFORZHEIMER, JR., ALEXANDER

J. ALLAN, JR., JOSEPH C. INDELICATO, M.D., KEN-

NETH B. CLARK, HAROLD E. NEWCOMB, WILLARD

A. GENRICH, EMLYN I. GRIFFITH, GENEVIEVE S.

KLEIN, WILLIAM JOVANOVICH, MARY ALICE KEN-

DALL, JORGE L. BATISTA, LOUIS E. YAVNER, MAR-

TIN C. BARELL and LAURA BRADLEY CHODOS, in-

dividually and as Members of the Board of Regents of the

State of New York, JOSEPH MANCH, individually and as

Superintendent of Schools of the City of Buffalo, EUGENE

T. REVILLE, individually and as Superintendent of

Schools of the City of Buffalo, THE BOARD OF

EDUCATION OF THE CITY OF BUFFALO, FLORENCE

E. BAUGH, SAMUEL E. SACCO, JOSEPH E. MURPHY,

MOZELLA RICHARDSON, DR. MATT A. GAJEWSKI,

LOUIS C. BENTON, MICHAEL J. RYAN, JOSEPH D.

HILLERY and MARILYN P. KAVANAGH, individually

and as Members of the Board of Education of the City of

Buffalo, STANLEY M. MAKOWSKI, Mayor of the City of

Buffalo, and DELMAR L. MITCHELL, RAYMOND

LEWANDOWSKI, GUS FRANCZYK, ALFREDA W.

13a

Appendix C—Decision and Order Dated April 30, 1976.

SLOMINSKI, WILLIAM J. DAURIA, JOSEPH 5S.

FORMA, MICHAEL McCARTHY, WILLIAM B. HOYT,

GEORGE K. ARTHUR, RICHARD F. OKONIEWSKI,

HORACE C. JOHNSON, JOHN A. RAMUNNO, AN-

THONY M. MASIELLO, DANIEL J. HIGGINS and

WILLIAM A. PRICE, constituting the members of the

COMMON COUNCIL OF THE CITY OF BUFFALO,

Defendants.

Civ- 1972-325

APPEARANCES:

RICHARD F. GRIFFIN, ESQ., Buffalo, New York, for

Plaintiffs.

LOUIS J. LEFKOWITZ, ESQ., Attorney General of the

State of New York (RUTH KESSLER TOCH, ESQ., Solicitor

General, & JEAN M. COON, ESQ., Assistant Solicitor

General, of Counsel), Albany, New York, and (EUGENE A.

PANFIL, ESQ., Assistant Attorney, of Counsel), Buffalo,

New York, for the Commissioner of Education, and the

Board of Regents of the State of New York, defendants.

LESLIE G. FOSCHIO, ESQ., Corporation Counsel of the

City of Buffalo (ANTHONY GREGORY, ESQ., Assistant

Corporation Counsel, & FRANK A. SEDITA, JR., ESQ.,

Assistant Corporation Counsel, of Counsel), Buffalo, New

York, for Mayor Stanley M. Makowksi, Superintendent of

Schools Eugene T. Reville, The Board of Education, and the

Common Council of the City of Buffalo, defendants.

OP” ag “te

:

,

-

t

i

sae ieee it mitt a i i i ee ee i Bt ee i te ee ee, nT on OS ee,

—. —_—_

SO TO CE aa 66 eer eee) «6! +

l4a

Appendix C—Decision and Order Dated April 30, 1976.

TABLE OF CONTENTS

Page

EROPOGUCTION oo. ccc ccc cree devecnccvecsccccvescess |

I. The Parties And Their Positions ..........++555: 5

I a, ida eV ast SB RWS HHS 000 ard eve cen ese sis 9

II]. Buffalo And Its Public Schools ..........0050055 15

cc cage sen endvegervdecescadesees 27

A. East High School............ ee eee eee eeeeees 28

1. Redistricting ..........ceeceeeeeeeeeeees 30

2. Language Transfers .......-..++seeeeeees 32

B. Woodlawn Junior High School............+:. 46

C. Transfers and Optional Areas ........-.+-55 58

Be es a aep naan eeey.s acca es oes 59

2. Optional Areas .......-.. essere eeeeeeees 68

D. Vocational-Technical High Schools .......... 75

Pe UN, pie bn 6.0.08 0:8-0 0 0196100 #0 0 0 0's 81

1. Staff Assignments............ eee eeeeees 82

2. Staff Recruiting ..........cccccceeeseees 89

F. The State Integration Mandate............+-. 94

1. New York State Education Law.......... 96

2. The Regents’ Integration Policy .......... 98

3. The Yerby Dixon Appeal..............45: 101

4. The Defendants’ Responses To The Yerby

ee Vip chs ch tn dsderoevececavese 104

G. Conclusion On School Evidence ............. 128

a ae ee eer eee ee 133

“ee er een 133

2. The Relevancy Of Housing Segregation... 145

SR oy ES * Ee eer ey EE ee 152

1Sa

Appendix C—Decision and Order Dated April 30, 1976.

(1) INTRODUCTION

This court's decision in this case comes after a long and ar-

duous journey through a complex lawsuit, in which the plain-

tiffs charge the defendants with ‘creating, maintaining, per-

mitting, condoning and perpetuating racially segregated

public schools in the City of Buffalo and in the Buffalo

Metropolitan area.” (Complaint, at 1). Plaintiffs allege a

cause of action under 42 U.S.C. §§ et seq.' and the fourteenth

amendment to the United States Constitution. They seek

declaratory and injunctive relief under 28 U.S.C. § 2201 and

Claim jurisdiction in this court under 28 U.S.C. § 1343.

It hardly needs to be pointed out that the Constitution and

the laws do not forbid all types of discrimination. The four-

teenth amendment prohibits only discrimination carried out

under color of law: private discrimination, however regret-

table or reprehensible, is not actionable under it. Civil Rights

Cases, 109 U.S. 3, 11 (1883); Shelley v. Kraemer, 334 U.S. 1, 13

(1948). This state action requirement presents no obstacle to

the plaintiffs’ case, since there is no question but that all the

defendants are state agericies within the ambit of the four-

teenth amendment’s protection. See United States v. Texas

Education Agency, 467 F.2d 848, 863 (Sth Cir. 1972) (en banc):

Oliver v. Kalamazoo Board of Education, 368 F.Supp. 143, 157-

58 (W.D. Mich.), aff'd 508 F.2d 178 (6th Cir. 1974), cert.

denied, 421 U.S. 963 (1975).

At this point in the lawsuit, the only question before the

court is whether or not any or all of the defendants have acted

in such a manner as to segregate the Buffalo Public School

System [hereinafter BPSS]. The question of remedy, i.e., what

action the court should take if it should find that the BPSS is

segregated, is not before the court.

16a

Appendix C—Decision and Order Dated April 30, 1976.

It should be emphasized that this court sits only as an ar-

biter of a legal dispute, not as a super-school board. It is this

court’s duty to safeguard the fourteenth amendment’s guaran-

tee of equal protection under the laws for all residents of the

United States. The late Judge Murrah’s words aptly describe

the court's function in this lawsuit:

We yet like to believe that wherever the Federal courts

sit, human rights under the Federal Constitution are

always a proper subject for adjudication. Stapleton v.

Mitchell, 60 F.Supp. 51, 55 (D.Kans. 1945), appeal dis-

missed, 326 U.S. 690 (1945).

At the outset, the court gratefully acknowledges the con-

sistently professional cooperation exhibited by all parties to

this lawsuit. One of the beneficial consequences of this co-

operation was a series of 161 stipulations! upon which all par-

ties agreed before the trial in this action commenced. This, of

course, considerably reduced the burden on this court once

the trial actually began.

The complexity and scope of the issues before the court

must not be understated, however. The question present-

ed—whether or not the defendants intentionally committed

segregative acts affecting the Buffalo public schools—is one

that calls for the strongest of emotions.’ The final written

record of this case gives some testimony to its complexity and

to the fervor with which it was contested. Pretrial motions

and discovery procedures consumed many months, the actual

trial lasted ten days, with a transcript running 1,695 pages:

parties submitted many pre-trial and post-trial briefs: some

180 exhibits* were admitted into evidence, and post-trial oral

arguments were scheduled to facilitate a clear understanding

of the positions and legal arguments of all parties.

17a

Appendix C—Decision and Order Dated April 30, 1976.

It is, of course, the duty of this court to decide the facts

from the evidence placed before it. Correlatively, it is the

duty of this court to apply the law as it exists, both in the

decisions of the Supreme Court and those of the Second Cir-

cuit in which this court sits. After carefully sifting through all

the testimony, evidence, and argument, the court is now pre-

pared to apply the applicable law to the facts as it finds them.

(5) I. THE PARTIES AND THEIR POSITIONS

This suit was instituted as a class action, with the named in-

dividual plaintiffs, black and white parents of public school

children in the Buffalo metropolitan area, attempting to

represent all others similarly situated. Although a class ac-

tion is appropriate under Federal Rule of Civil Procedure

23(b)(2), the court believes that since little evidence was pre-

sented at trial regarding non-BPSS policies and practices, the

certified class should be restricted to parents of children at-

tending Buffalo public schools.

Also plaintiffs are the Citizens Council for Human

Relations, Inc., a non-profit corporation organized under the

laws of the State of New York, and the National Association

for the Advancement of Colored People, Buffalo branch,

organizations which seek, among other things, equal op-

portunity in education.

The defendants are Ewald Nyquist, the Commissioner of

Education in New York State, The Board of Regents of the

State of New York and its individual members [ State defen-

dants], Joseph Manch, Superintendent of Schools of the City

of Buffalo at the time this suit was brought, and Eugene

Reville, the present Superintendent, the Board of Education

of the City of Buffalo and its members, the Common Council

of the City of Buffalo and its members, and Stanley M.

Makowski, Mayor of the City of Buffalo [City defendants].

18a

Appendix C—Decision and Order Dated April 30, 1976.

Originally, the plaintiffs did not name the individual mem-

bers of the Board of Education or the Board of Regents. By

order of this Court dated today, the plaintiffs’ motion to

amend their complaint to include the individua! members of

these two Boards as parties defendant was granted.

The plaintiffs allege that the defendants, by various actions

and inactions have caused the BPSS to become or remain

severely segregated. Among the major allegations are segre-

gation of staff, siting and construction of schools so as to pro-

mote segregation, manipulation of school district lines, op-

tional zones and transfers for segregative reasons, failure to

implement any meaningful integration plan, failure to hire

significant numbers of minority group teachers, failure to

promote significant numbers of minority individuals to

supervisory positions, and failure to fund the proposed new

East Side High School. Numerous other actions and inactions

are alleged, including segregation of residential areas, and

student assignment which incorporated this segregation. As a

result of these actions of the defendants, plaintiffs claim that

they have been denied the equal protection of the laws

guaranteed to all citizens by the fourteenth amendment.

The City defendants, while acknowledging that many of the

schools are racially imbalanced, insist that any imbalances

are due to demographic shifts in housing patterns that are

beyond their control. In addition, they contend that no af-

firmative action is required of them by the Constitution to al-

leviate the imbalances so caused. In adhering to their long- ,

standing neighborhood school policy, which they argue is and

has been racially neutral, the City defendants deny that they

have violated the plaintiffs’ constitutional rights.

The State defendants likewise admit that wide-spread

segregation exists in the BPSS, but insist that they have done

19a

Appendix C—Decision and Order Dated April 30, 1976.

more than is constitutionally required of them to end it. They

also disclaim any responsibility for, or power to end, the

segregated residential patterns in the City of Buffalo.

(9) Il. THE LAW

In 1954 the Supreme Court of the United States issued its

famous decision in Brown v. Board of Education, 347 U.S. 483

(1954), which declared that laws requiring separate school

facilities for blacks and whites—the separate but equal school

doctrine—-were unconstitutional. The Court ruled in that

decision that such a system was “inherently unequal”, and

that such school segregation was a violation of the fourteenth

amendment’s guarantee of equal protection of the laws. 347

U.S., at 495. Although separate school facilities mandated by

Statute have long been outlawed in New York State,’ this did

not effectively prevent the slow emergence of separate

educational facilities, as shown in tables 3 to 7, infra.

The law to be applied in this case has evolved through a

series of Supreme Court and circuit court cases since Brown

dealing with school segregation in many cities of our country,

both North and South." The essential elements, found in

Keyes v. School District No. 1, 413 U.S. 189 (1973), a case

which involved the Denver public schools, can be reduced to

a series of questions:

(1) Have plaintiffs shown that any of the Buffalo public

schools are segregated?’

(2) If the answer to the first question is yes, have plaintiffs

shown that any of this segregation was brought about or

maintained by purposeful or intentional segregative acts

by the defendants? '”

20a

Appendix C—Decision and Order Dated April 30, 1976.

(3) If question number 2 is answered affirmatively, have

plaintiffs shown that a meaningful or substantial portion

of the school district was so segregated?

All parties agree that the Buffalo public schools exhibit

severe racial imbalance (City Defendants’ Answer, at 2, State

Defendants’ Answer, at 2), and that “[iJn recent years, the

degree of racial isolation in the Buffalo public schools has

been increasing.” (S-11). The defendants deny, however, that

the segregated condition of the BPSS was intentionally or pur-

posefully caused by them. In other words, the defendants

argue that the schools are de facto segregated, not de jure

segregated. As the Supreme Court has explained in Keyes,

“the differentiating factor between de jure segregation and so-

called de facto segregation ... is purpose or intent to

segregate.” Keyes, supra, 413 U.S. at 208 (emphasis in

original).

In deciding the question of intent, the court is not required

to find guilt or innocence, prejudice or evenhandedness, or

even “badness” or “goodness” on the part of the defendants.

To prove their case, plaintiffs are not required to show that

racist motives prompted the defendants, nor even that defen-

dants wanted the schools to be segregated, although proof of

either of these would be sufficient to show the required in-

tent. It is enough, as the Second Circuit explained in Hart v.

Community School Board, 383 F.Supp. 699 (E.D.N.Y. 1974),

aff'd 512 F.2d 37 (2d Cir. 1975), to show that the probable and

foreseeable result of the defendants’ acts was segregation. In

Hart, the district court found that the school board had un-

constitutionally segregated a school despite the court’s

specific finding that the school board was not racially

motivated. The board appealed this decision. The Second

Circuit stated:

2la

Appendix C—Decision and Order Dated April 30, 1976.

Unless the Supreme Court speaks to the contrary, we

believe that a finding of de jure segregation may be based

on actions taken, coupled with omissions made, by

governmental authorities which have the natural and

foreseeable consequence of causing educational

segregation. Hart, supra, 512 F.2d at SO.

Furthermore, it is not necessary that the plaintiffs prove

that the defendants’ every action was discriminatory or that

no positive action was ever taken by the defendants to

promote integration. We are not dealing with absolutes.

Isolated actions of constitutionally insignificant effect,

whether of a discriminatory nature or such as to avoid or

alleviate segregation, are not determinative. If fourteenth

amendment rights are being denied, plaintiffs are entitled to

relief. United States v. Texas Education Agency, supra, 467 F.2d

at 873.

In this regard, we note the words of the Sixth Circuit in

Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th

Cir. 1974), cert. denied, 421 U.S. 963 (1975):

When constitutional rights are involved, the issue is

seldom whether public officials have acted with evil

motives or whether they have consciously plotted with

bigotry in their hearts to deprive citizens of the equal

protection of the laws. Rather, under the test for de jure

segregation, the question is whether a purposeful pattern

of segregation has manifested itself over time, despite the

fact that individual official actions, considered alone,

may not have been taken for segregative purposes and

may not have been in themselves constitutionally invalid.

Benevolence of motive does not excuse segregative acts.

508 F.2d at 182-83 (citations omitted).

22a

Appendix C—Decision and Order Dated April 30, 1976.

Some of the actions and events considered in this lawsuit

occurred before many, or in some cases any, of the present

public school children first attended school. The passage of

time alone does not wipe the evidentiary slate clean, however.

The Supreme Court has stated:

. . We reject any suggestion that remoteness in time has

any relevance to the issue of intent. If the actions of

school authorities were to any degree motivated by

segregative intent and the segregation resulting from

those actions continues to exist, the fact of remotewess in

time certainly does not make those actions any less “in-

tentional.”

Keyes, supra, 413 U.S, at 210-11.

If the plaintiffs prove that some schools were intentionally

segregated by the defendants, the court must then decide

whether the plaintiffs have shown that a substantial portion

of the school district was so segregated. If the plaintiffs have

proved that the defendants intentionally segregated a sub-

stantial part of the school district, this “creates a presumption

that other segregated schooling within the system is not ad-

ventitious. It establishes, in other words, a prima facie case of

unlawful segregative design on the part of school

authorities.” Keyes, supra, 413 U.S. at 208. It is then in-

cumbent on the defendants to prove that the other segregated

schools are not the consequence of their illegal segregative

actions as well. The burden so imposed on the defendants is

considerable. Mere reliance on an “allegedly logical, racially

neutral” course of action is insufficient. The Supreme Court

has explicitly enunciated the standard:

[ The defendants’] burden is to adduce proof sufficient to

support a finding that segregative intent was not among the

factors that motivated their actions.

Keyes, supra, 413 U.S. at 210."

(Emphasis added).

23a

Appendix C—Decision and Order Dated April 30, 1976.

(15) Ill. BUFFALO AND ITS PUBLIC SCHOOLS

Buffalo's growth pattern has been similar to many other

large cities of the northeast. Although the physical boun-

daries of the City of Buffalo have not changed significantly

since the middle of the 19th century (PX 260, Pt. II, at 1), the

population did not stop growing until a century later in 1950.

In the quarter century since, the City has exhibited a steady

population decline, due in large part to the familiar suburban

migration, '*

Many immigrants were attracted to Buffalo in the late

1800's, and the City retains strong ethnic concentrations to

this day. The black population of Buffalo, negligible around

the turn of the century, has grown steadily since World War I,

receiving a strong impetus from the economic growth oc-

casioned by the war industries during the 1940’s.'’ As is

typical of northern cities, the older central city has long been

the locus of the black population, with movement slowly

taking place to other areas of the city over the last two

decades. Although some diffusion of black families

throughout the 43 square miles of Buffalo has occurred, the

number of blacks in suburban areas has been, and is,

negligible.

The segregated nature of Buffalo's suburbs is glaringly

evident when area public school districts are compared. The

New York State Commission on the Quality, Cost and Finan-

cing of Elementary and Secondary Education reported in

1972 that

[ Buffalo's) surrounding suburbs are severely segregated.

Of the 30 Erie County school districts, only six have over

| per cent nonwhite students. Of these six, the only two

districts with significant nonwhite student populations

are Buffalo (46.6 per cent) and Lackawanna (19.2 per

24a

Appendix C—Decision and Order Dated April 30, 1976.

cent). Akron, with a sizeable Indian population, has the

third highest nonwhite population, representing 16 per

cent of the total. (PX 305, at 4.44). '4 (Footnotes omitted).

As the City’s population has dropped, the minority per-

centage has correspondingly increased, as shown in the

following table.

TABLE 1!

POPULATION CITY OF BUFFALO

Years Total Jo Non-White

1950 580, 132 6.5

1960 532,759 13.8

1970 462,768 21.0

SOURCE: PX 263, at 5; S-9.

At the same time, the BPSS has recorded a similar drop in

its pupil population, with an even more striking percentage

increase in non-white members,'** as the following table

shows.

TABLE 2

BPSS STUDENT POPULA TION

Years Total Non-White % Non-White

1966 72,963 25,486 35%

1970 70,300 28,692 40.8%

1973 61,060 27,949 45.8%

SOURCE: PX 6, at 6. :

The difference in years 1970 and 1973 is illustrative of this

phenomenon—.e., the population, in absolute numbers, of

minority public school children decreased, yet the minority

percentage increased. 2

25a

Appendix C—Decision and Order Dated April 30, 1976.

The population drop is naturally reflected in school at-

tendance figures. During the years 1966 through 1973, only

ten of Buffalo's seventy-three elementary schools experienced

an increase in enrollment. The rest noted declines ranging

from negligible to severe. Total enrollment in those years

dropped over 11,000, a percentage decline of approximately

23% from the January 1966 totals. Minority enrollment

declined during that period by 525, while majority enrollment

dropped by over 10,000 students. '®

As of the 1973-1974 school year,'*" the BPSS consisted of

77 elementary schools,'’ 4 middle and 2 junior high schools, 7

academic and 6 vocational-technical high schools. The pupil

population in October 1973 was 61,060, of whom 53.3% were

white, and 46.7% were non-white (S-10). The system has

never been under mandate of law to operate a dual system

along racial lines. In fact, New York State enacted an anti-

segregation law for public schools in 1900.'* Nevertheless,

there exists substantial racial imbalance in the public schools.

In 1973, 55 out of 77 elementary schools, 5 out of 6 junior and

middle schools, and 7 out of 13 high schools were from 80 to

100% majority or minority, as tables 3 through 7 demon-

strate, Statistics such as these prompted Commissioner

Nyquist to state in April 1972 that “segregation [in the BPSS]

is more severe now than it was seven years ago.” [ S-18(b)].

te

26a

Appendix C—Decision and Order Dated April 30, 1976.

TABLE 3

ELEMENTARY SCHOOLS 80-100% MINORITY

ENROLLMENT (OCT. 1973)

School (Grades)

6 (PK-6)

8 (PK-6)

12 (PK-6)

16 (PK-6)

17 (PK-6)

23 (K-5)

31 (K-8)

Build (former 32)

(PK-6)

35 (Special)

37 (PK-8)

39 (PK-6)

41 (PK-6)

47 (PK-6)

48 (PK-5)

50 (Special)

53 (PK-6)

59 (K-5)

62 (K-7)

74 (PK-6)

75 (PK-6)

90 (K-6)

93 (K-3)

SOURCE: PX6 at 13-20 (Statistics), DX 3 (Grades).

Minority

801 (100% )

777 (99.9% )

230 (100% )

178 (90% )

465 (99.4% )

697 (91.8% )

828 (99.2% )

575 (99.7% )

16 (96.2% )

809 (99.9% )

927 (100% )

371 (100% )

272 (100% )

396 (99.7% )

99 (100% )

880 (99.9% )

566 (98.3% )

712 (92.5% )

626 (98.9% )

363 (100% )

512 (89.3% )

99 (100% )

Majority

0 (0% )

1 (0.1%)

0 (0% )

19 (10.0% )

3 (0.6% )

62 (8.2% )

7 (0.8% )

2 (0.3% )

3 (3.8% )

1 (0.1% )

0 (0% )

0 (0% )

0 (0% )

1 (0.3% )

0 (0% )

1 (0.1% )

10 (1.7% )

58 (7.5% )

7 (1.1%)

0 (0% )

61 (10.7% )

0 (0% )

Total

801

778

230

197

468

759

835

27a

Appendix C—Decision and Order Dated April 30, 1976.

TABLE 4

ELEMENTARY SCHOOLS 80-100% MAJORITY

School

11 (K-8)

18 (K-6)

19 (K-8)

26 (K-6)

27 (K-6)

28 (K-6)

29 (K-8)

30 (K-6)

33 (PK-6)

34 (K-5)

38 (PK-8)

43 (K-8)

45 (K-8)

49 (K-5)

51 (K-6)

52 (K-8)

60 (K-6)

63 (K-8)

65 (K-6)

66 (K-8)

67 (K-8)

69 (K-8)

70 (K-6)

71 (K-6)

72 (K-8)

77 (PK-8)

79 (K-4)

80 (K-8)

Minority

43 (9.8% )

43 (9.8% )

70 (11.8% )

32 (7.9% )

4 (0.6% )

70 (11.8% )

43 (6.0% )

13 (6.8% )

45 (8.7% )

38 (13.4% )

83 (13.0% )

27 (2.8% )

83 (8.9% )

14 (7.2% )

40 (9.3% )

54 (7.8% )

13 (2.1%)

86 (15.5% )

51 (13.4% )

74 (10.6% )

44 (6.6% )

57 (10.6% )

6 (1.4% )

63 (18.4% )

9 (1.1%)

114 (15.1% )

38 (11.9% )

53 (16.5% )

ENROLLMENT (OCT. 1973)

Majority

398 (90.2% )

395 (90.2% )

523 (88.2% )

374 (92.1% )

631 (99.4% )

522 (88.2% )

690 (94% )

177 (93.2% )

471 (91.3% )

245 (86.6% )

554 (87.0% )

920 (97.2% )

848 (91.1% )

179 (92.8% )

388 (90.7% )

637 (92.2% )

620 (97.9% )

469 (84.5% )

330 (86.6% )

621 (89.4% )

626 (93.4% )

479 (89.9% )

427 (98.6% )

279 (81.6% )

821 (98.9% )

640 (84.9% )

282 (88.1% )

269 (83.5% )

Total

441

438

593

406

635

592

733

190

516

283

637

947

931

193

428

691

633

555

381

695

670

536

433

342

830

754

320

322

28a

Appendix C—Decision and Order Dated April 30, 1976.

School

81 (K-8)

83 (K-5)

84 (Special)

86 (K-5)

88 (K-4)

Minority

87 (12.8% )

3 (2.3%)

40 (17.9% )

26 (8.4% )

4 (3.2% )

Majority

595 (87.2% )

127 (97.7% )

184 (82.1% )

284 (91.6% )

125 (96.8% )

Total

682

130

224

310

129

SOURCE: PX6, at 13-20 (Statistics); DX3 (Grades).

TABLE 5

MIDDLE AND JUNIOR HIGH SCHOOLS

80-100% MINORITY-MAJORITY ENROLLMENT

School

Fillmore

Middle

Clinton

Junior

Genesee Humboldt

Junior

Southside

Junior

Woodlawn

Junior

(OCT. 1973)

Minority Majority

690 (89.0% ) 85 (11.0% )

846 (100% ) 0 (0% )

932 (90.9% ) 93 (9.1% )

202 (15.4%) 1107 (84.6% )

764 (99.6% ) 3 (0.4% )

SOURCE: PX 6, at 21.

Total

775

846

1025

1309

767

29a

Appendix C—Decision and Order Dated April 30, 1976.

TABLE 6

ACADEMIC HIGH SCHOOLS

80-100% MINORITY-MAJORITY ENROLLMENT

School

East High

Riverside High

South Park High

(OCT. 1973)

Minority

1622 (99.0% )

232 (15.1% ) 1301 (84.9% )

245 (12.7% ) 1683 (87.3% )

SOURCE: PX 6, at 22.

TABLE 7

Majority

17 (1.0% )

Total

1639

1533

1928

VOCATIONAL-TECHNICAL HIGH SCHOOLS

80-100% MINORITY-MAJORITY ENROLLMENT

School

Fosdick - Masten

Hutchinson-Central

Technical

McKinley

Seneca

SOURCE:

(OCT. 1973)

Minority

576 (98.1% )

223 (19.8% )

235 (20.3% )

222 (20.0% )

PX 6, at 23.

Majority

11 (1.9% )

902 (80.2% )

922 (79.7% )

891 (80.0% )

Total

587

1125

1157

1113

30a

Appendix C—Decision and Order Dated April 30, 1976.

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3la

Appendix C—Decision and Order Dated April 30, 1976.

The BPSS exhibits a complex combination of grade struc-

tures and feeder patterns. Elementary schools vary from pre-

kindergarten or kindergarten through third, fourth, fifth,

sixth, seventh, or eighth grades. Middle schools are fifth

through eighth grades, junior high schools, seventh through

ninth grades, and high schools ninth through twelfth grades.

Depending on the grade structure of the individual elemen-

tary school, a child may remain inone grammar school for his

complete elementary education, or progress to a second

grammar school, a middle school, or a junior high school.

For instance, Schools 16, 30 and 38 are all within a matter of

blocks of each other on the city’s near west side. A child at-

tending School 16, a K-6 school, will procecu to Woodlawn

Junior High School and then Grover Cleveland High School,

while a child starting out at School 30, another K-6 school,

will transfer to School 56 for seventh and eighth grades and

then go to Lafayette High School, while a third child at

School 38 will remain at that school from kindergarten

through eighth grade and then to go Grover Cleveland High

School.'* (PX 296, at 26; Record, Vol. VIII, at 21-22).

As a general rule,”’ pupils do not have a choice of elemen-

tary schools. They must attend the school in the district?’ in

which they live. This is also true for the junior high schools,

the middle schools and the academic high schools. However,

it is not true for the vocational-technical high schools, which

accept students from all over the city and have no district

lines.

(27) IV. THE TRIAL

For purposes of assessing the allegations of the plaintiffs,

the court will analyze separately what it considers to be the

major issues: East High School, the siting and districting of

Woodlawn Junior High, the use of transfers, optional areas

32a

Appendix C—Decision and Order Dated April 30, 1976.

and redistricting of attendance zones, the vocational-

technical high schools, staff segregation, the state integration

mandate, and the housing segregation in Buffalo.

(28) IV-A. EAST HIGH SCHOOL

There are seven academic high schools in the BPSS. Each of

these schools has its own area from which it gets its students.

The policy of the Board of Education has been, at least since

1956, that students living in a certain academic high school’s

district must attend that high school (S-42). Any deviation

from the Board’s attendance policy requires authorization

from the Office of Pupil Personnel Services, and “may only

be granted for hardship, language, and voluntary in-

tegration.” (S-42).** The enrollments at the academic high

schools as of January 1966 and October 1973 are shown in

Table 8 below.

TABLE 8

ACADEMIC HIGH SCHOOL ENROLLMENTS

1966 and 1973

Total

Schools Jan. 1966 Majority Minority

Bennett 2050 1494 (72.9%) 556 (27.1%)

East 1818 157 (8.6% ) 1661 (91.4% )

Grover

Cleveland 1453 1289 (88.7%) 164 (11.3%)

Kensington 1999 1959 (98% ) 40 (2% ) ,

Lafayette 1522 1257 (82.6%) 265 (17.4%)

Riverside 1830 1804 (98.6% ) 26 (1.4% )

South Park 2649 2494 (94.1%) 155 (5.9%)

33a

Appendix C—Decision and Order Dated April 30, 1976.

Total

Schools Oct. 1973 Majority Minority

Bennett 1606 899 (56% ) 707 (44% )

East 1639 17 (1%) 1622 (99% )

Grover

Cleveland 1139 674 (59.2%) 465 (40.8% )

Kensington 1923 1093 (56.8%) 830 (43.2%)

Lafayette 1152 664 (57.6%) 488 (42.4% )

Riverside 1533 1301 (84.9% ) 232 (15.1% )

South Park 1928 1683 (87.3%) 245 (12.7%)

SOURCE: PX 6, at 22.

Although the outer boundaries of the BPSS have remained

static for many years, the individual high school district lines

that govern attendance zones have been altered many times.

East High School is among those schools that have been

redistricted.

Plaintiffs charge that through redistricting and language

transfers, the defendants have increased and maintained the

racial segregation at East High School. In assessing the

evidence, this court is cognizant that “[w]hat is or is not a

segregated school will necessarily depend on the facts of each

particular case.” Keyes, supra, 413 U.S. at 196.

(30) |. REDISTRICTING

The stipulations indicate the following facts with regard to

the redistricting of East High School:

i. The Board in May 1954 adjusted the East district

so that the students residing in an optional* area

in the eastern sector of the district would thereaf-

ter not be given the option of attending East. The

students in this optional area were “practically all

white.” ¢S-151).

a

34a

Appendix C—Decision and Order Dated April 30, 1976.

2. Another district adjustment by the Board at this

time extended the East district further south. The

result of this was that some black students were

required to go to East instead of the predominant-

ly white South Park High School (S-152).

3. Three years later, in May of 1957, another

redistricting for East was authorized by the Board.

This changed an area** then optional to Grover

Cleveland, Bennett and Lafayette High Schools to

East’s district. Most of the students in this for-

merly optional area are black (S-153).

4. At that same Board meeting, graduates of School

43 were assigned to South Park High School.

School 43 students were predominantly white and

the school was just as close to East as to South

Park (S-154-156).

The redistricting testimony at trial was not extensive, but it

did flesh out the bare bones of the stipulations. $-151 and

154-156, paragraphs one and four, supra, deal with the same

area, commonly referred to as the “Lovejoy” or “School 43”

area. See Map 2, infra. As of 1950, this section was part of the

East High district. In July of 1951, it was declared an optional

district, providing students residing in that area the choice of

attending either East High on the west, or

35a

Appendix C—Decision and Order Dated April 30, | 976.

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Appendix C—Decision and Order Dated April 30, 1976.

Kensington High on the north. In 1954, as paragraph one ex-

plains, the Lovejoy district was made a part of the Ken-

sington High district. Three years later, in 1957, the students

in the district were transferred to South Park High, as in-

dicated in paragraph four, supra. Finally, in 1961, the Board

reassigned this area to Kensington High (Record. Vol. VII, at

103-105). The evidence indicates that this area has always

been overwhelmingly white (PX 290; 291), and that it “is

either closer to East High School—or at least equidistant

to—than South Park.” (S-156).

This redistricting of East High School, which resulted in

the largely white Lovejoy neighborhood being excised from

the East district, must be considered in conjunction with the

language transfer policy in effect from 1960-1972.

(32) 2. LANGUAGE TRANSFERS

The language transfer exception was designed to allow a

student to take advantage of a particular language curriculum

that his district school did not offer. This special exception

injects additional flexibility into an academic high school

system already quite accommodating of students’ language

pursuits, since Board policy is to offer language courses “‘in

each high school if there are [sic] a sufficient number of

Students who express a bonafide interest in taking such

language.” (S-46). Testimony at trial indicated that the

minimum number of students required by the Board is fifteen

(Record, Vol. III, at 195-96).

‘

Certain languages, such as Spanish, French and Latin, are

apparently taught at all the academic high schools. Polish,

Italian, Hebrew and Russian, however, the so-called “special

languages,” are restricted to selected high schools (PX 264, at

545). A course in Polish was taught at East High School until

37a

Appendix C—Decision and Order Dated April 30, 1976.

about 1960, but, of the seven academic high schools, only

East had none of these special language courses from ap-

proximately 1960 to 1972 (S-53, 54; PX 264, at 545; Record,

Vol. IV, at 75).

The evidence shows that sometime in the early 1950's East

High School was predominantly white (Record, Vol. I, at

102). Although in 1970 the East High district had become ap-

proximately 60% black (PX 264, at 547), the court takes

judicial notice of the well known fact, not disputed by the

defendants, that the East High School district had long been,

and still was in the 1950's and 1960's, populated by substantial

numbers of persons of Polish extraction. Many Polish-

Americans still live there. If there was any district in the Buf-

falo school system where a demand for Polish language class-

es existed, it was the East High School district and the Board

of Education was well aware of this.”

It is not only a clearly foreseeable and natural consequence

that curtailment of the language classes at East would induce

transfers to other high schools, it is obvious that this result

would occur. The evidence produced at trial corroborated

this. Plaintiffs proved that many East district students ob-

tained language transfers to study one of these special

languages at another public high school, usually South Park

or Kensington Highs. All of these transfers had to be

authorized by the Student Personnel Services Office. They

caused annual headaches for that office, which was inundated

with transfer requests prior to the start of each school year.

As the following testimony of the head of the Student Per-

sonnel Services indicates, this situation was made known to

the Superintendent of Schools.

Q. Did you at anytime recommend to the Superin-

tendent or to the Board of Education or to anyone that

38a

Appendix C—Decision and Order Dated April 30, 1976.

the languages that these students were asking to take be

offered at East High School?

A. Yes, I did. In fact, we constantly did......

So constantly we brought to the Superintendent's at-

tention maybe these languages should all be put into East

High School. |

Q. When would you recall that you first made that

recommendation?

A. Probably every year. Probably every year.

Q. Every year. Would that be every year from 1965

when you assumed your position?

A. Probably. Probably, yes.

(Record, Vol. III, at 201-202).

The language transfers out of East were called to the Board's

and to the Superintendent's attention by others also. At a

Board meeting on May 26, 1971, Superintendent Manch was

specifically informed that South Park High School alone had

143 out of district students, “generally from the East High

School district,” studying Polish and Russian (PX 60, at 88-

89). The possibility that language transfers were contributing

to East's predominantly black enrollment was raised as early

as 1963 in a report by the Civil Rights Commission of the

United States (PX 10, at 18). Noting that East High at that

time was predominantly black, though the East district was

not, the report suggested that language transfers were

possibly being used by white students to transfer out of East.

The report pointed out the curious result of a 1957 adjust-

ment in the Riverside High-Bennett High boundary. The area

assigned to Riverside, previously optional between Riverside

and Bennett, contained a substantial Jewish population. Short-

ly after this change was made. the Board of Education

became aware that significant numbers of the new Riverside

High studems were transferring back to Bennett to take

39a

Appendix C—Decision and Order Dated April 30, 1976.

Hebrew. To avoid this, the Board instituted Hebrew classes at

Riverside High School (PX 10, at 17-18), The Board could

have instituted the same policy with regard to East and the

Polish language classes to avoid the transfers out of East

High. That they did not is an indication that they did not want

to.

The difficulty that the Board's transfer policy caused only

served to highlight the Board’s attitude. When dealing with a

system of seven academic high schools, it is inevitable that an

action taken regarding one school’s attendance policies will

have a reaction on other schools. The language transfers out

of East High for Polish and Russian contributed substantially

to severe overcrowding at South Park High, and the Board

was aware of this (PX 60, at 64-67; 88-89). A past president of

the Board, Mr. Arnold Gardner, testified that

from time to time this [language transfers] arose at the

Board. I would say it arose and received brief attention

on only a few occasions. It was one of those items with

which we are all familiar. It was one of those items that

people mention and drop because they are embarrassed

by it and from time to time it would be proposed that

Polish be offered at East High School and there would be

a series of knowing smiles around the table and after a

moment's discussion, that would be abandoned.

(Record, Vol. I, at 147).

It cannot be disputed that East is now, and has been at least

since 1960, an identifiably black school.®* The Board attempts

to rebut the plaintiffs’ allegations that the Board caused East

to become predominantly black by showing that the residen-

tial tracts surrounding East have become progressively more

black as the years have passed.?’ While it is certainly true that

the East district population has exhibited a substantial shift

40a

Appendix C—Decision and Order Dated April 30, 1976.

from predominantly white to predominantly black, nonethe-

less, even in 1973 the minority district percentage was only

about 60%, while East High was 99% minority—and had

been over 90% minority for at least eight years. See Table 8.

supra. \t is obvious to the court that more than mere

demographics caused this drastic effect. In 1966 East was

already the black academic high school, with a student body

91.4% minority. By comparison at that time, Bennett stood at

73% majority, Lafayette at 83% majority, Grover at 89%

majority, and Kensington, Riverside and South Park High

Schools all over 90% majority. /d. Almost three out of every

five black academic high school students in 1966 attended

East High (PX 6, at 5).**

The Board admits that the language transfer policy con-

tributed, in some degree, to East's racial imbalance. Fur-

thermore, the head of the Student Personne! Services admit-

ted, both on redirect and recross examination. that he

believed that in many cases the language transfers were used

to avoid attending East High School (Record, Vol. VIII, at

101, 105). He also testified that there was no procedure

whereby the central school administration monitored the

transferring students to check whether or not they actually at-

tended the requested language courses (Record, Vol. VIII, at

90-91).

However, the Board denies that its language transfer policy

was a substantial causative factor of East High’s imbalance.

The first hand statistics on the racial effect of transfers were

not available untii 1966. The following table shows the num-

bers of transfers, including language transfers, granted at

East since that year.

4la

Appendix C—Decision and Order Dated April 30, 1976.

TABLE 9

TRANSFERS FROM EAST HIGH

Total Majority Transfers Minority Transfers

Year Enrollment Enrollment Granted Enrollment Granted

1966 1818 180 (9.9% ) 73 1638 (90.1% )

1967 1814 112 (6.2%) 109 1702 (93.8% )

1968 1599 42 (2.7% ) 129 1557 (97.3% )

1969 1696 27 (1.6% ) 87 1669 (98.4% ) 112

1970 1710 24 (1.4% ) 176 1686 (98.6% ) 114

1971 1343 2( .2%) 51 1341 (99.8% ) 102

1972 1393 23 (1.7% ) i) 1370 (98.3% )

1973 1638 23 (1.4% ) 2 1615 (98.6% )

SOURCE: DxX 8.

The City defendants argue:

[H]ow can such a racially imbalanced school, 90.1%

black, in 1966, have been substantially affected by a

policy that had no known racial impact on said school

until some two years later?

Post-trial Brief for City Defendants, at 22.

The court finds this logic difficult to follow. Merely because

cold raw data on the racial effect of transfers was unavailable

prior to 1966 does not mean that this racial effect was not

discernible prior to this date. The Board was aware that

language transfers could produce this effect, as shown by the

Riverside-Bennett experience; it was warned that it was

producing this effect in 1963; and it was obviously cognizant

that East High’s district contained many Polish speaking

families. East was the only high schovl that offered no

foreign languages from 1960 to 1972.

42a

Appendix C—Decision and Order Dated April 30, 1976.

A brief examination of Table 9, supra, indicates that the

segregative effect of transfers out of East, including language

transfers, was substantial during those years, and from all the

evidence the court can infer that it was substantial prior to

those years. In 1967, as Table 9 shows, 112 majority students

attended East while almost as many, 109, transferred. In

1968, only 42 white students attended while 129 transferred.

In 1969, 27 attended and 87 transferred, and in 1970, 24 at-

tended while 176 transferred. Although Table 9, supra, does

not indicate the percentage of transfers gran’ + for language

study, it was admitted that as of October 1%. . 197 white

students from East High's district were studying languages at

South Park. (S-56).

In addition to what these stark numbers show in terms of an

annual effect, there is a certain cumulative impact to con-

sider, since each student who transfers can remain at the trans-

feree school for the duration of his high school career. That

there were no definite statistics available prior to 1966 does

not prohibit this court from concluding, in light of all the cir-

cumstantial evidence, that the language transfer device

produced a substantial adverse racial impact on East High

School before 1966.

On July 6, 1972 the Board ordered that a full range of

foreign languages be offered at East High, and that no more

language transfers out of East be permitted. (S-58). At trial,

the Board of Education introduced evidence tending to show

that in 1972-73, the first school year that language transfers

were ended, most of the white students who should have at-

tended East High School did not.* Since these East district

residents could not avoid East through the language transfer

device, the Board suggests that other subterfuges, such as

false addresses, were apparently devised to thwart the

Board’s attendance policy. The essence of the Board’s defense

43a

Appendix C—Decision and Order Dated April 30, 1976.

is that nothing the Board of Education or the City could do

would force white students to attend East High School.” —

It is no excuse for the Board to say that whites shunned the

school in 1972 after the Board had aided, abetted and helped

to cause the attitudes that prompted this “white flight” from

East High. Neither the Board of Education nor the City Coun-

cil, nor even the Commissioner of Education can in candor

deny that they had knowledge that East was becoming iden-

tifiably black throughout the late 1950's and early 1960's. The

possibility that language transfer out of East was leading to

East's racial imbalance was raised as early as 1962, and this

problem was repeatedly called to the attention of the Board

and the Superintendent of Schools. For the Board to argue

that when it ended the language transfers in 1972, no effect on

the racial imbalance at East High School resulted, puts its

good faith in question. The language transfers encouraged the

concentration of minorities in one out of the seven academic

high schools.

Finally, the Board argues that the stipulations which the

Board agreed to and the evidence regarding the redistricting

of East are so lacking in detail that they are void of eviden-

tiary value, and that any increase in the minority population

at East at the time of the redistricting could only have served

to integrate that school. Even assuming that the Board is

correct on the redistricting evidence, the dcietion of special

languages from the East curriculum in 1960 and the sub-

sequent language transfers effectively nullified whatever in-

tegration had been achieved.

The racial impact of the language program was clearly

foreseeable. In addition, and more important, the failure of

the Board to amend this policy when it was obviously aware

of its segregative impact is indicative that the Board intended

that that segregative effect continue.

44a

Appendix C—Decision and Order Dated April 30, 1976.

(46) IV-B. WOODLAWN JUNIOR HIGH SCHOOL

The siting and districting of Woodlawn Junior High School,

hotly debated issues for nearly two decades, are alleged by

plaintiffs as clear examples of purposeful racial segregation.

The City defendants argue that economic and demographic

considerations required the North Masten District site on

Woodlawn Avenue, and that the racial makeup of the school

was the inevitable result of residential patterns beyond their

control. It is uncontested that the school has been nearly all

black throughout its twelve-year existence. [S-24(b)].

The Masten District experienced a great influx of

population during the 1950's, due in substantial part to the

Ellicott District Redevelopment which resulted in the

relocation of many black families in the Masten District. As a

consequence, severe overcrowding of the public elementary

schools in that area of the city occurred. (PX 34, at 28-29: PX

124, at 36).*' Consistent with a previously devised master plan

for junior high schools, the decision was made to construct a

junior high to alleviate the situation. (PX 32, at 537-8).

45a

Appendix C—Decision and Order Dated April 30, 1976.

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46a

Appendix C—Decision and Order Dated April 30, 1976.

Several sites were considered for the new school, but ap-

parently only two were given serious consideration by the

Board and the Common Council. The first was the area of

Northland, Purdy and Alexander Streets: the second, on

Woodlawn Avenue, was the old Offermann Stadium, the

home of the City’s minor league baseball team. Both of these

sites are in the North Masten district. See Map 3, supra.

Controversy raged in 1958 over the site selection, with some

citizens arguing that the Offermann Stadium-Woodlawn

Avenue site would inevitable lead to an all black school. Ina

Board meeting December 10, 1958, concerned citizens

presented their views. Among those who spoke against the

Woodlawn Avenue site was Mr. Frank Caldwell, representing

a committee of citizens, who urged that the school be con-

structed in a site conducive to an integrated facility:

{W]e do staunchly urge that this Board. . . commence

right now to accept the fact that residential segregation

creates an educational problem, which must be faced by

this Board.

(PX 32, at 537).

The then Chairman of the Board, Paschal Rubino, stated that

the Board had never considered race in its decisions, that it

always considered only the needs of the City’s children, and

that “frankly, some of the apprehensiveness that exists at this

point by your group, has neven been a consideration of this

Board.” (/d., at 537). Mr. Caldwell replied: “That is the basis

of our complaint.” (/d.)

In addition to Superintendent Manch and Mr. Rubino, the

late Councilwoman for ‘se Masten District, Cora Maloney,

and two local ward supervisors, Mr. Delmar Mitchell and

Mr. F. Cecil Brown, among others, spoke in favor of the

Woodlawn Avenue site. (/d. at 5383-84, 5393). These

47a

Appendix C—Decision and Order Dated April 30, 1976.

proponents of the Woodlawn Avenue site, all leaders in the

black community, expressed reservations, but finally agreed

for the reasons stated by Mrs. Maloney:

I wish that it could be at a different place, but if it can

not be at a different place than the Offermann Stadium,

and the children must have education, and the children

are the innocent victims because the adults have situated

and located there, then I rise or fall by the children of

the Masten District. (/d. at 5371-2).

The Board voted unanimously to recommend the Of-

fermann Stadium-Woodlawn Avenue site, and the Common

Council, on Mrs. Maloney’s resolution, unanimously ap-

proved it. Chief among the reasons cited by the Board were

demographic changes—‘‘[ W]e must build schools where there

are children. There is no other way you can approach it,”

(Rubino, /d., at 5374), and economic forces—fewer families

would be displaced; lost property taxes would be much less;

time of construction would be considerably shorter; site

acquisition costs would be lower. (PX 34, at 29).

There was evidence tending to show that this siting of the

new junior high school guaranteed that it would be segregated

because potential feeder schools mentioned at that time were

predominantly black. But influential black leaders, like Mrs.

Maloney, and Mr. Mitchell and Mr. Brown, who supported

the Woodlawn site, apparently were convinced that regardless

of the difficulties the site presented, the possibility of an in-

iegrated school was not foreclosed. As the court's discussion

of the districting of Woodlawn shows, infra, the statements of

Board members and the Superintendent encouraged their

belief that the school would be integrated. They also ap-

parently considered that economic and demographic reasons

were sufficiently compelling to accept the Woodlawn Avenue

site.

48a

Appendix C—Decision and Order Dated April 30, 1976.

Although it is a close question, it is the court's opinion that

this conflicting evidence is not sufficient to show racially

segregative intent on the part of the City or the State defen-

dants with respect to the siting of the Woodlawn Junior High

School. As the court weighs the evidence, the siting of the

school on Woodlawn Avenue was not a virtual guarantee of

segregation, and it cannot be said “that the natural, probable,

and foreseeable result of public officials’ action or inaction

was an increase oF perpetuation of public school

segregation.” Oliver v. Michigan State Board of Education,

supra, 508 F.2d, at 182.

However, the same conclusion cannot be reached with

regard to the districting decision that was made six years after

the siting. During the debate on the site selection for

Woodlawn, the following statements were made concerning

the possible configuration of the school's attendance zone.

MR. RAND. a Board member:

Now, that particular site {Woodlawn Avenue site] is

nearer to the center of that area, which I think is made up

of not just one race or one group—it's quite an all em-

bracing area, particularly the area stretching on the other

side of Main Street,”* so that is another matter.

(PX 32. at 5375).

SUPERINTENDENT MANCH:

Now, it is not unlikely—let me say it in that way, it is not

unlikely that by placing the school in the Offermanh site

| Woodlawn Avenue], rather than the original site

proposed, we may have a more integrated situation than

would have been possible with the other arrangement,

simply because the school is now suggested in a place a

little bit further west—practically at Main Street, you

might say. (/d., at 5378).

49a

Appendix C—Decision and Order Dated April 30, 1976.

[W]e have no intention of being part of any movement to

create a so-called segregated school, and that we would

be conscious of this and do everything possible to make it.

a school which would be as integrated as the schools in

that particular area can be. (/d., at 5379).

The Civil Rights Commission Report in 1963 stated:

Dr. Manch holds out hope that Woodlawn Junior High

School will be an integrated school. “The zone will cross

Main Street if | have anything to say about it,” he

declares.

(PX 10, at 41).™

In a June 1962 letter,** Superintendent Manch had stated:

A careful study precedes any establishment of new

school districts or redistricting of school boundaries to

be certain that the best possible pattern of integration

may be effected despite the difficult problems which may

be posed by housing.

(PX 10, at 74).

Six years after the siting decision, push came to shove, as it

were. After years of theorizing and analyzing, a final decision

on the new school’s attendance zone had to be made. The

Board provided the forum for citizens to express their

opinions, and heated public discussion occurred. Several

districting proposais were bandied about by various Board

members, the effects of which were racial ratios ranging from

almost exclusively black to a 64-36 white majority (Record

Vol. Ul, at 174). In addition, an alternative plan oe

proposed by which Lafayette High School would be utilized

for the new junior high, and the new facility on Woodlawn

would be used as a high school [S-26(c); PX 34, at 1].

50a

Appendix C—Decision and Order Dated April 30, 1976.

Board consideration of the districting question stretched

over several meetings. Among the topics discussed at those

meetings was the fact that between the date of the site selec-

tion in 1958 and the Board discussion of districting in 1964,

the State Board of Regents had announced its policy on in-

tegration in the public schools of New York State (PX 28, pt.

II, at 11-12).

At a Board meeting February 26, 1964, Superintendent

Manch read to the Board a statement that then Commissioner

of Education James Allen had made October 28, 1963:

As a matter of policy, the State Education Department

believes de facto segregation to be a detriment to the

provision of equal educational opportunity. The Depart-

ment further fervantly [sic] hopes that local authorities

will deal with the elimination of de facto segregation,

that the responsibility will be accepted at the !uca! level.

... Therefore, if appropriate local action is not forth-

coming, if adequate plans are not made and actively

pursued by local authorities, the state, in faithtu!ness to

its responsibility, will have no choice but to act to move

to fill the vacuum created by inertia or postponement in

the exercise of local responsibility.

(PX 122, at 22-23).

One month later, referring to the Commissioner's

statement, Dr. Manch told the Board members:

At no time did he [Commissioner Allen] term these

statements “mandates” but they were interpreted as such

throughout the state. Indicative of this, most of the large

cities have already taken positions and acted on various

proposals.

(PX 124, at 36).

Sla

Appendix C—Decision and Order Dated April 30, 1976.

At the Board meeting on the 26th of March, 1964, Mr.

Parlato, a Board member, submitted a written resolution that

would district Woodlawn Junior High School with the result

that the school would be 99% black [PX 34, PX 124, at 31-47:

S-24(b)]. Board members Wright and Nitkowski had not been

informed of this resolution prior to the meeting; Dr. Manch

heard about it accidentally a day previous to its submission

(Record, Vol. III, at 176; PX 34, at 26, PX 124, at 31). During

discussion on the proposal, Dr. Manch advised the Board:

[I]t is not now feasible, from the point of view of sound

education and administration, in view of everything that

has happened, in view of all the factors, it is not now

feasible, I believe, to draw the district lines for

Woodlawn in such a way asto achieve a racial balance

that would be meaningful or stable. I don’t think there is

any middle ground in it any more.

(PX 124, at 36).

Dr. Manch did not set out the specifics of why it was not

feasible to avoid a totally segregated school. Among the fac-

tors he evidently was referring to when he stated “in view of

everything that has happened,” was a petition with ten

thousand signatures submitted to the Board in 1963, by white

parents living west of the Woodlawn school site, protesting

the possible inclusion of their area in the Woodlawn district

[ PX 264, at 646; S-26(b)(ii)], and the atmosphere of the weeks

previcus to March 26, which he had referred to as “akin to

panic.” (PX 124, at 33).

The Board voted in favor of the Parlato districting scheme

six to one. (PX 124, at 47). The sole dissenting vote was cast

by Dr. Lydia Wright, the only black Board member, who had

proposed both a districting scheme that would have avoided a

52a

Appendix C—Decision and Order Dated April 30, 1976.

segregated school and who also had supported the alternative

plan involving switching Lafayette High School and the new

junior high school.

The final district plan for Woodlawn Junior High did ex-

tend west of Main Street, thus encompassing predominantly

white neighborhoods, but a considerable portion of the

district west of Main was made an optional zone, allowing

students residing there the choice of attending School 56 or

Woodlawn Junior. [S-27(b)(3)]. See discussion of optional

areas, Section IV-C(2), infra. The remaining portion of the

Woodlawn district west of Main was not made optional, but

the evidence showed that many students residing in this area

(see Map 4, infra) avoided Woodlawn Junior by transferring

to predominantly white schools. See discussion of transfers,

Section IV-C(1), infra. The racial composition of Woodlawn

Junior High School has not changed measurably in the twelve

years since that vote.*

The evidence is overwhelming that the action of the Board,

in approving the Parlato districting plan for Woodlawn

Junior High, was done with full understanding that the result

would be a school student body almost totally black, and that

this was the desire of the Board.

This is not a case of “mere inaction . . . allowing a

racially imbalanced school to continue.” Hart

Po ee

53a

Appendix C—Decision and Order Dated April 30, 1976.

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S4a

Appendix C—Decision and Order Dated April 30, 1976.

v. Community School Board, supra, 512 F.2d, at 48. Rather it is

an example of blatant segregative intent with clear segregative

results. Woodlawn Junior High School was part of the

Board’s master plan for junior high schools throughout the

City.** The Board was operating on a clean slate when it

decided the district boundaries for this new school. The City

defendants attempted to argue that once Woodlawn was con-

structed the resultant racial makeup was inevitable, and that

the district chosen was “tight” and “well defined.” (Post-trial

Brief for City Defendants, at 28). Yet, the defendants’ failure

even to attempt to expiain away the other zoning proposals

that would have avoided an all black school belies this stance.

Also, the defendants’ failure to call Superintendent Manch,

Mr. Parlato or any of the other principal figures to the

districting decision, supports the inference that their

testimony would not alter the conclusion the evidence leads

the court to make. The court finds that the Board willfully

and intentionally caused the Woodlawn Junior High School to

be districted so as to be a segregated school.

($8) IV-C. TRANSFERS AND OPTIONAL AREAS

The basic attendance policy of the BPSS is rigid—-it

requires each pupil to attend the school in the geographic

zone in which he lives (S-42). All schools in the system, with

the exception of the vocational-technical high schools, follow

this rule (S-95). As is the case with most rules, however, there

are several exceptions which allow a child to attend a school

outside his geographically assigned school. The major ex-

ceptions follow.

1. Special course offered—a student is allowed to

transfer to another school offering a course his

own school does not feature. This is best exem-

plified by language transfers. See section [V-A(2)

of this opinion, supra.

55a

Appendix C—Decision and Order Dated April 30, 1976.

2. Medical necessity—physical and psychological

reasons may be grounds for transfer.

3. Hardship—this exception makes allowances for

families with special problems that make it dif-

ficult for the child to attend his ordinary school.

4. School adjustment—this exception apparently

ecompasses transfers to a different school when a

child, for one reason or another, has had dif-

ficulty with teachers or other students in his

original school.

5. Harassment—if the child has been the victim of

physical or psychological abuse from other stu-

dents, a transfer is sometimes allowed.

(Record, Vol. VIII, at 27).

6. Voluntary integration—inner city students are

allowed to attend peripheral schools outside their

normal attendance zone.

(Record, Vol. VII, at 108-109).

7. Optional areas—students residing in certain

geographical areas are granted the privilege of at-

tending a school outside their normal school

district.

(S-34).

The plaintiffs charge that the Board defendants have

manipulated the transfer rules and optional areas to effect

segregative results.

{59} 1. TRANSFERS

Plaintiffs put into evidence over 70 transfer requests that

were granted in the years 1968-1973 (PX 51; Record, Vol. IV,

at 23-46). Among the specific reasons for granting the transfer

56a

Appendix C—Decision and Order Dated April 30, 1976.

requests, as stated by school officials on the transfer forms,

were fear of black children and avoidance of Woodlawn

Junior High School. On many of the forms, no reason at all is

stated

This text is long and has been trimmed here. Open the source document for the complete record.