Petition — Board of Education of the City School District v. Harris
Supreme Court brief1979
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4 es ~ 63
4 ; %, C i ‘ 3
IN THE SUPREME COURT OF THE UNITED STATES
in
OCTOBER TERM, st Supreme Cowl, apy
—
Ss. & 44 a 2,
‘4
BOARD OF EDUCATION OF THE cry NOY
SCHOOL DISTRICT OF THE CITY O
NEW YORK, IRVING ANKER, Chancellor Mepis. be
of the City School District of the “" ". CLERK |
City of New York,
Petitioners,
-against-
JOSEPH CALIFANO, Secretary, United
States Department of Health, Education
and Welfare, HERMAN R. GOLDBERG,
Associate Commissioner, Equal
Educational Opportunity Programs,
United States Department of Health,
Education and Welfare,
Respondents.
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ALLEN G. SCHWARTZ
Corporation Counsel
of the City of New York
Attorney for Petitioners
100 Church Street
New York, N. Y. 10007
7“ eee |
INDEX ii
Pages
Pages Robinson v. Vollert, 411
The Opinion Below...-.++eeereererrss 1 F. Supp. 461 (S.D.Tex. 1976)..-+++s:s 40,41,42,43
JULiSGICtiON ..ceeeeeeeceerererree® 2 Stribling v. United States, 419
F. 2d 1350, 1352-53 (8th Cir. 1969).. 43
Question Presented..---eeeserereerres 3
United States v. Menasche, 348 U.S.
Constitutional and Statutory 528, 538-539 (1955) cee ener vee eeecens 39
ProviSiONS..cccccccceesesreseerrerer® 5
Village of Arlington Hts. v. Metro.
Preliminary Statement..---eeerreres 10 Hsng. Develp. Auth.,426 U.S.252(1977). 25
Statement of the CaS€..--eeereereres 13 Washington v. Davis, 426 U.S. 229
(1976) ec cceeeererervesereesereseesers 25
Argument..cccccccceccseesossssercre® 22
Zeigler Coal Co. v. Kleppe, 536
CONCLUSION. cccececocesseoseoseeere® 49 | 2a 398 (D.C. a. 1976) ~ecccvvcees 39
CITATIONS STATUTES
Emergency School Aid Act
Cases: ’
(20 U.S.C. 61601, et Seg.) .----eeeees ae ef
Bradley v. Milliken, 432 F. Supp. ‘ :
B85 (B.D. Mich. 1977) .+eeeeeeereees 40 Section lL601l.. cece cere ee eerveees 5
Lau V. Nichols, 414 BR 563 Section 1602 (a) a@eee sie e@ueseseeoeaserve 6, 23
1974 aw eee e666 68 OO COSTES EROS
Sania 12,25,32,34 eS EEE 7,23,29,31
Keyes vV- School District No. l
Denver, Colorado, 413 U.S. 189 QS. SCr.PiBs BLES 46. ccc vicsccccccoccs 15
(1973) wccececceeseereres ho ee ee 25
45 C.F.R. 8185.43(b) (2) -- eee eevee 16
Overstree v. North Shore Corp.,
318 U.S. 125 131-132 (1943) .eeeeees 43
Regents of the University of
California v. Bakke, U.S. °
46 U.S.L.W. 4896 (June 28, 1978)... 3,11,25,26,
31,32,35,36,
37,38,39,48 P
iii
Pages
Title VI of the 1964 Civil Rights
Act (42 U.S.C. 82000d et SEg.)}.-6-- ll
Section 20008 c6 0s ee CU 0606 0648 eEe 3,8
Section poi ee eee oe ae 8,27,29
Section 2000d~-6....-eee20. 5 ,28,29
Title VII of the 1964 Civil Rights
Act (42 U.S.C. §2000e, et SOG-) +e 36
Elementary and Secondary Education
Act of LIES eeeeeeeeeeeeeerersecece 27,28,30
1966 AmendmentS.cccccccccsceccsese 27,29
1970 AmendmentsS...cecccccccccvees 28
Appendices
I. United States Court of
Appeals for the Second
Circuit, Decision, dated
August 21, cL | Fer i ee 1
II. United States Court of
Appeals for the Second
Circuit, Orders denying
P_tition for Rehearing
with Suggestion for
Rehearing en banc, dated
Cotaber. 6, Abies ivciccscsses 28,29
iv
Pages
III. United States District
Iv.
Court, Eastern Dist
rict
pebgn Batya Memorandum
rder, dated Nov
18, “s) | olitermnypbery tices ed 30
United States Court of
Appeals for the Second
Circuit, Decision, Dated
September 5, Pesebétecbeccs 208
Vv. United States Di
strict
Eastern District eet
of New York,
Transcript of Proceedi
n
Dated September ave 1978... 128
Vi P P
IN THE SUPREME COURT OF THE UNITED STATES iewed has not been officially re-
OCTOBER TERM, 1978 ported. It is attached hereto as
Appendix I.
BOARD OF EDUCATION OF THE CITY
SCHOOL DISTRICT OF THE CITY OF
NEW YORK, IRVING ANKER, Chan-
cellor of the City School District
of the City of New York,
Jurisdiction
The decree sought to be re-
ti :
Petitioners, viewed was dated and entered on
-against- - August 21, 1978.
JOSEPH CALIFANO, Secretary, United
States Department of Health, Educa-
tion and Welfare, HERMAN R. GOLDBERG, By orders dated October 6, 1978
Associate Commissioner, Equal
Educational Opportunity Programs,
United States Department of Health,
Education and Welfare,
(attached hereto as Appendix II ),
petitioners' petition for a rehear-
Respondents. ing with a suggestion for a rehear-
ee x ing en banc was denied by the Court
of Appeals.
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS ; exe
FOR THE SECOND CIRCUIT This Court has jurisdiction to
The Opinion Below review the decree in question by writ
of certiorari pursuant to 28 U.S.C.
§1254(1).
The opinion delivered by the Court of '
Appeals for the Second Circuit upon the
rendering of the decree sought to be re~
Questions Presented
1. Whether this Court's con-
clusion in Regents of the University
of California v. Bakke, U.S. , 46
U.S.L.W. 4896 (1978), that Title VI of
the 1964 Civil Rights Act, 42 U.S.C.
$2000d et seg. requires a finding of
Cteoktabnattion to be based upon evidence
of conduct violating the constitutional
intent standard applies to the Emergency
School Aid Act ("“ESAA"), 20 U.S.C. 1601
et seg.?
2. Did the Court of Appeals for
the Second Circuit err in holding in this
case that the Department of Health,
Education and Welfare ("HEW") may reject
a school district's application for
ESAA funding solely upon the basis
of a finding of disparate racial
impact and without a fiiiding under
the constitutional intent standard
that the school district has purpose-
fully and intentionally discriminated
against any group on the basis of
race?
3. Has HEW overstepped the
limits of its administrative power by
imposing a standard of review which
is so burdensome as to be virtually
unchangeable in the courts?
funds to which local educa-
tional agencies do not have
access.
(b) The purpose of this
Relevant Constitutional chapter is to provide finan-
and Statutory Provisions cial assistance -
(1) to meet the
The Fourteenth Amendment to special needs incident to
the elimination of minority
the Constitution: group segregation and
discrimination among students
; and faculty in elementary and
Section l. All persons secondary schools;
born or naturalized in the
United States, and subject (2) to encourage the
to the jurisdiction there- voluntary elimination, re-
of, are citizens of the duction, or prevention of
United States and of the minority group isolation
State wherein they reside. in elementary and secondary
No State shall make or en- schools with substantial
force any law which shall proportions of minority
abridge the privileges or group students; and
immunities of citizens of ;
the United States; nor (3) to aid school child-
shall any State deprive ren in overcoming the educa-
any person of life, tional disadvantages of
liberty, or property, minority group isolation.
without due process of
law; nor dene oa ped per- Emergency Schoool Aid Act, 20 U.S.C.
son within its jurisdic- §1602:
tion the equal protection ;
of the laws. (a) It is the policy of
the United States that guide-
Emergency School Aid Act, 42
U.S.C. § 1601:
(a) The Congress finds
that the process of elimin-
ating or preventing minority
group isolation and improving ro
the quality of education for
all children often involves
the expenditure of additional
a
Title VI of the 1964 Civil
lines and criteria estab- Rights Act, 42 U.S.C. §2000d:
lished pursuant to this
chapter shall be applied
uniformly in all regions
of the United States in
dealing with conditions
of segregation by race
in the schools of the
local educational agen-
cies of any State without
regard to the origin or
cause of such segregation.
No person in the United
United States shall, on the
ground of race, color, or
national origin, be excluded
from participation in, be
denied the benefits of, or
be subjected to discrimina-
tion under any program or
activity receiving Federal
financial assistance.
Elementary and Secondary Educa-
(b) It is the policy
tion Amendments of 1966, §182,
of the United States that
guidelines and criteria 42 U.S.C. §2000d-5:
established pursuant to
title VI of the Civil
Rights Act of 1964 and
section 182 of the Ele-
mentary and Secondary
Education Amendments of
1966 shall be applied
uniformly in all regions
of the United States in
dealing with conditions
of segregation by race
whether de jure or de
facto in the schools of
the local educational
agencies of any State
without regard to the
origin or cause of such
segregation.
The Commissioner of
Education shall not defer
action or order action de-
ferred on any application
by a local educativunal
agency for funds authorized
to be approrriated by this
Act, by the Elementary and
Secondary Education Act of
1965, by the Act of Septem-
ber 30, 1950 (Public Law
815, Eighty-first Congress),
or by the Cooperative Re-
search Act, on the basis
of alleged noncompliance
with the provisions of this
subchapter for more than
sixty days after notice is
given to such local agency
of such deferral unless
such local agency is given
aie
the opportunity for a hearing as
provided in section 2000d-1 of
this title, such hearing to be
held within sixty days of such
notice, unless the time for such
hearing is extended by mutual
consent of such local agency and
the Commissioner, and such defer-
ral shall not continue for more
than thirty days after the close
of any such hearing unless there
has been an express finding on
the record of such hearing that
such local educational agency
has failed to comply with the
provisions of this subchapter:
Provided, That, for the purpose
of determining whether a local
educational agency is in com-
pliance with this subchapter,
compliance by such agency with
a final order or judgment of
a Federal court for the desegrega-
tion of the school or school
system operated by such agency
shall be deemed to be compliance
with this subchapter, insofar as
the matters covered in the order
or judgment are concerned.
Elementary and Secondary Education
Amendments of 1970, 42 U.S.C. §2000d-6
(a) It is the policy of the
United States that guidelines
and criteria established pursuant
to title VI of the Civil Rights
Act of 1964 and section 182 of
the Elementary and Secondary
Education Amendments of 1966
dealing with conditions of
segregation by race, whether
de jure or de facto, in the
wien
schools of the local educational
agencies of any State shall be
applied uniformly in all regions
of the United States whatever the
origin or cause of such segregation.
(b) Such uniformity refers to
one policy as may be provided pur-
suant to law applied uniformly to
de facto segregation wherever found.
(c) Nothing in this section shall
be construed to diminish the obligation
of responsible officials to enforce or
comply with such guidelines and criteria
in order to eliminate discrimination in
federally-assisted programs and activi-
ties as required by title VI of the
Civil Rights Act of 1964.
(qd) It is the sense of the Con-
gress that the Department of Justice
and the Department of Health, Education,
and Welfare should request such addi-
tional funds as may be necessary to
apply the policy set forth in this
section throughout the United States.
Preliminary Statement
This Court is presented with the
opportunity to consider the application of
«=16@
its decision in Regents of the University of
California v. Bakke, supra, with respect to
the test of discrimination to be used under
Title VI of t.ie 1964 Civil Rights Act, 42
U.S.C. §2000d et seq. in a controversy in-
volving local eligibility for a federally
funded program. In Bakke, a majority of
this Court concluded that a violation of
Title VI must be established by evidence
of constitutionally proscribed conduct,
i.e., intentional or purposeful discrim-
ination. The Court of Appeals in uphold-
ing HEW's denial of funding to petitioners
under the Emergency School Aid Act ("ESAA"),
20 U.S.C. §1601 et seg., ignored the effect
of Bakke on Title VI's eligibility standards
for federally funded programs such as ESAA.
Instead, the Court of Appeals cited, inter
alia, pre-Bakke interpretations of Title
VI eligibility standrads as set forth in
allie
oo]
Lau v. Nichols, 414 U.S. 563 (1974), which
are of doubtful validity, in concluding that the
disparate racial impact test rather than
the constitutionally mandated standard of
intentional and purposeful discrimination
suffices to establish a violation of Title
VI and consequently ESAA. Also presented
is the issue of Title VI's role as the means
for guarding against racial discrimination
in federally funded programs and the under-
lying issue of excessive or unfettered
overreaching and interference by HEW with
a local educational agency in a manner which
effectively precludes any review of these
administrative decisions by the judiciary.
Title VI of the 1964 Civil Rights Act,
is intended to provide the enforcement power
to insure that no discrimination exists in
Programs which receive federal financial
assistance.
atta
The Emergency School Aid Act authorizes
a federal grant system to school districts
throughout the country to aid these dis-
tricts in developing programs to meet the
special needs incident to the elimination
of minority group segregation and dis-
crimination among students and faculty in
elementary and secondary schools.
Petitioners contend that ESAA is one
of the federal financial assistance statutes
which Title VI was designed to enforce.
This interpretation is based upon a fair
reading of the statutory language of ESAA,
upon the available case law and upon logic.
Statement of the Case
In April, 1977, the Board of Education
of the City of New York ("the Board") on
behalf of itself and several local community
school districts submitted an application
to HEW for 1977-78 ESAA funding to adminster
-13-
programs designed to foster integration and
reduce minority student isolation for
approximately 40,000 students in elementary
and secondary schools in the New York City
School District.
Prior to July 1, 1977 the Board was
advised by HEW that its application met the
minimum qualifications for ESAA funding and
that $3.5* million had been earmarked as its
share of the 1977-78 appropriation.
However, on July 1, 1977, Defendant
Goldberg of HEW notified the Board that its
application was denied. Statistics developed
* The total amount of funds earmarked was
$17.5 million. This included the alloca-
tion for the local community school boards
("CSB's") in New York City. Approximately
$14.0 million was released to the CSB's
and thus they are not parties to this
action. Only the applications of the
Central Board and CSB 1l remained outstand-
ing. After the Court of Appeals' decision
in this case, CSB 1l resolved its dispute
with HEW thus leaving the Board as the
only plaintiff.
-14-
by the Office of Civil Rights of HEW ina
Givil rights compliance investigation of
the New York City School District, con-
ducted pursuant to Title VI of the 1964
Civil Rights Act, allegedly demonstrated
that teacher assignments in some element-
ary and junior high schools operated by
local community school boards and in some
high schools operated by the City Board
resulted in their racial identifiability.
Upon notification of ineligibility ,the
Board and individual community school
board applicants participated in "show
cause proceedings" pursuant to 45 C.F.R.
§185.46. At these proceedings defendant
Goldberg ruled that he would limit the
agency's inquiry to the accuracy of the
statistics upon which HEW made its deter-
minination to deny ESAA funding to the
various school boards. Thereafter, defend-
-15-
ant Goldberg issued an opinion adhering to
the July 1, 1977 decision.
The underlying action was commenced in
September, 1977 in the District Court for
the Eastern District of New York (WEINSTEIN,
J.). The Board sought to permanently en-
join defendants from enforcing their deter-
mination of July 1, 1977 that it was in-
eligible for asco eae because of alleged
discrimination in teacher assignments re-
sulting in racially identifiable schools in
violation of 20 U.S.C. §1605 and 45 C.F.R.
§185.43(b) (2).
On November 18, 1977 the District Court
granted plaintiffs' application for a stay
preserving the $3.5 million ESAA fund.*
*ESAA funds in the amount of $3.5 million
were earmarked for the Board, while
$300,000 was set aside for CSB ll.
a26~
On cross-motions for summary judgment and
re-argument, the District Court granted
judgment for the Board and CSB 1l and re-
manded their ESAA applications to defend-
ants for de novo consideration consistent
with the principles of due process dis-
cussed in its opinion.
The opinion rejected defendants' in-
terpretation that, under ESAA, school
districts experiencing statistical racial
imbalance were ineligible for funding.
Instead, the pistrict court held that
urider ESAA "discrimination" means de
jure or intentional discrimination and
that defendants should have considered
proof offered by the Board rebutting
defendants statistical showing of
ethnic disparity. (A copy of the Dis-
trict Court decision is annexed hereto
as Appendix III.)
at to
At the de novo proceeding ordered
by the District Court, plaintiffs sub-
mitted to defendants proof that the
current minority and non-minority teacher
incidence and distribution resulted from
and was affected by State law; demographic
changes in the student population of the
City schools; neutral date-of-hire sen-
iority practices emanating from collective
bargaining agreements; minority representa-
tion in the relevant available work force;
and incidence and distribution of vacancies
in specific teacher license areas.
On March 22, 1978, after the de novo
review, defendants again found the Board
ineligible for ESAA funding. The Board
then moved in the pistrict Court for a
preliminary injunction against enforcement
of that administrative decision. The
District Court consolidated the preliminary
=)
injunction application with trial of the
action and rendered final judgment sustain-
ing defendants' denial of ESAA funding
for the Board on the basis that the HEW
determination was predicated on substantial
evidence.
Plaintiffs then applied to the Court
of Appeals for the Second Circuit for a
stay of the disbursement of the $3.5
million fund pending appellate review. On
April 28, 1978, the motion was granted.
In the Court of Appeals, the Board
argued that Judge Weinstein was in error
in finding that substantial evidence sup-
ported HEW's determination that the Board
had engaged in discrimination in violation
of the constitution, i.e., intentional
discrimination. The Court of Appeals
(OAKES, BLUMENFELD and MEHRTENS, J.J.),
held, however, that it was unneces-
sary to determine "whether
~19-
the evidence supports a finding of pur-
poseful segregative intent." Slip Opin-
ion at 4537. Instead, Judge Oakes, writ-
ing for the court, affirmed the result
reached by the pistrict Court on the
grounds that the evidence supported a
finding of discrimination under the dis-
parate racial impact or effects test:
Here [ESAA], Congress in-
tended to permit grant disqua-
lification not only for pur-
poseful discrimination but also
for discrimination evidenced
simply by an unjustified dis-
parity in staff assignments.
Slip Opinion at 4539.
On September 5, 1978, petitioners
filed a petition for a rehearing with a
suggestion for a rehearing en banc.
This automatically stayed the issuance
of the court's mandate thereby preserv-
ing the $3.5 million fund earmarked for
the Board. The petition was denied on
a2O—
October 6, 1978. On October 24 1978,
petitioners motioned the Court of Appeals
for a stay of the issuance of its mandate
pending application to this Court for a
writ of certiorari. The motion was
granted on October 31, 1978, and thus the
$3.5 million fund remains intact pending
review by this Court.
>
Argument
In finding that the disparate
racial impact test rather than the
constitutional intent standard is ap-
plicable to determinations of ineli-
gibility for ESAA funding, the Court
of Appeals reasoned that constitu-
tional standards need only be applied
when a violation of the Fourteenth
Amendment is in issue. Here, the
court found the relevant inquiry
coucerned only a Congressional
enactment which validly incorpo-
rated a stricter standard, "more
protective of minority rights,
than constitutional minimums
required". Slip Opinion at 4537.
The court reasoned that the lan-
guage of ESAA itself, 20 U.S.C.
2230
Ee Bm nen
§ 1602(a), that “guidelines and
criteria be applied uniformly...
without regard to the origin of
.- Giscrimination," compelled
the interpretation that the
stricter disparate impact stand-
ard applies. Slip Opinion at
4539.
The Court of Appeals
then found that since a violation
of Title VI will constitute a
violation of ESAA, citing 20 U.S.C.
§ 1602(b),* and since, according
*20 U.S.C. § 1602(b) provides that
the "guidelines and criteria of
Title VI "be applied uniformly...
without regard to the origin of
»++ discrimination".
o33<
to Judge Oakes, Title VI in-
corporates the disparate racial im-
pact standard, this weighty burden
is applicable to ESAA applicants
as well. Slip Opinion at 4539.
While petitioners agree
with the Court of Appeals that ESAA
ineligibility is predicated on the
same standard used to determine
whether a Title VI violation exists,
petitioners respectfully assert that
the Court of Appeals erred in con-
cluding that the disparate racial
impact test applies to a determina-
tion of violations under Title VI
and, consequently, ineligibility
for ESAA funding. Petitioners
athe
further assert that the Court of
Appeals' reliance on this Court's
decision in Lau v. Nichols, supra,
as supportive of the applicability
of the disparate racial impact test
under Title VI and ESAA, is incor-
rect in light of the clear dilution
of that decision by this Court's
recent pronouncements in Regents
of the University of California v.
Bakke, supra. See, also, Village
of Arlington Heights v. Metropolitan
Housing Development Corporation, 429
U.S.252 (1977); Washington v. Davis,
426 U.S. 229 (1976); Keyes v. School
District No. l, Denver, Colarado, 413
U.S. 189 (1973). Petitioners contend
that the Court of Appeals erred in
-25-
failing to find that evidence of
purposeful or intentional discri-
mination is the necessary predicate
for a finding of a Title VI viola-
tion and ESAA ineligibility.
(1)
Title VI was enacted in
order "to halt federal funding of
entities that violate a prohibi-
tion of racial discrimination
Similar to that of the Constitu-
tion". Regents of the University
of California v. Bakke, supra, 46
U.S.L.W. at 4900 (Powell, J.). In
essence, Title VI was designed to
police federal funding programs in
order to insure that local agencies
a D—
and institutions do not use the
federal largess to finance racially
discriminatory programs.
Nowhere is Title VI's
enforcement role more evident than
in federal programs designed to
fund local educational agencies.
The 1966 Amendment*, to the fle-
mentary and Secondary Education...
Act of 1965, the enactment that
provides the City of New York with
more than one-half of all its
federal reimbursement funding,
was actually codified as an addi-
tion to Title VI (i.e., 42 U.S.C.
§ 2000d-5), Section 182 concerns
the application of various proce-
*P.L. 89-750 § 182, 80 Stat. 1209
-27-
dural rights to local educational
agencies found to be in violation
of Title VI and thus threatened
with a denial of funding under
this major program. Similarly,
the 1970 Amendment* to the
Elementary and Secondary Educa-
tion Act of 1965, which sets
forth the policy of applying
Title VI in the context of this
program, was also codified as
an addition to Title VI (i.e., 42
U.S.C. § 2000d-6). It is thus
inescapable that funding under
Congress' major educational fund-
ing program is directly tied to
the standards and criteria of
Titie VI.
*P.L. 91-230 § 2, 84 Stat. 121.
atin
ESAA is cut from the same
molds 20 U.S.C. § 1602(b), which is
apparently-derived from 42 U.S.C.
§ 2000d-6, provides:
It is the policy of the
United States that guide-
lines and criteria estab-
lished pursuant to Title
VI of the Civil Rights
Act of 1964 and section
182 of the Elementary
and Secondary Education
Amendments of 1966 shall
be applied uniformly in
all regions of the United
States in dealing with
conditions of segregation
by race whether de jure or
de facto in the schools of
the Iocal educational agen-
cies of any State without
regard to the origin or
cause of such segregation. *
*As set forth above, section 182 of
the Elementary and Secondary Educa-
tion Amendments of 1966 are codified
as an addition to Title VI, 42 U.S.c.
§ 2000d-5.
=39«
Thus, just as the Elementary and
Secondary Education Act of 1965,
as amended, is intended to com-
ply with the mandate of Title VI,
so to is ESAA intended to promote
the policies of non-discrimination
enunciated in t’e 1964 Civil Rights
Act. *
Indeed, the link between
Title VI and ESAA was recognized
by the Court of Appeals:
Moreover, the ESAA pro-
scription against employ-
ment discrimination forbade
discriminatory acts and
* Significantly, whereas the Ele-
mentary and Secondary Education
Act of 1965, as amended, provides
the New York City public School
System with more than 50% of all
its yearly federal reimbursement
funding, allocations under ESAA
amount to less than 5% of reim-
bursement funds.
-30-
practices which violate
etatutory civil rights
provisions such as Title
VI of the Civil Rights
Act of 1964.
Slip Opinion at 4539. Thus,an ex-
press purpose of ESAA, as set forth
in 20 U.S.C. § 1602(b), and recog-
nized by the Court of Appeals, is
to promote the policies of non-
discrimination enunciated in Title
M,
VI of the Civil Rights Act of 1964.
As a consequence, the test for ra-
cial discrimination contained in
Title VI (as set forth in Bakke)
applies to eligibility for ESAA
funding as well.
Until this Court's recent
landmark decision in Regents of the
University of California v. Bakke,
|
supra, the test for determining
racial discrimination under Title
VI appeared to be the disparate im-
pact test. Lau v. Nichols, 414 U.S.
563 (1974). That is, even without
evidence of purposeful and intention-
al discrimination, where statistical
evidence reveals that policies or
pvonrams have an adverse effect on
a particular racial group, that will
be sufficient to support a prima facie finding
of racial discrimination under Title
VI. This approach was radically al-
tered, however, by this Court's deci-
sion in Bakke. Bakke establishes
that the constitutional or purpose-
ful intent standard is the correct
standard for determining whether
a
discrimination in violation of
Title VI has taken place. In
Bakke, Justice Powell remarked:
-.-Title VI must be
held to proscribe only
those racial classifica-
tions that would violate
the Equal Protection
Clause or the Fifth
Amendment.
46 U.S.L.W. at 4901. Similarly, in
an opinion in which Justices White,
Marshall and Blackmun joined, Justice
Brennan stated:
In our view, Title VI
prohibits only those
uses of racial criteria
that would violate the
Fourteenth Amendment
if employed by a State
or its agencies.
46 U.S.L.W. at 4912. Justice Brennan
went on to reiterate this interpreta-~
=33<
tion of Title VI and in the Process
to cast grave doubt on the continued
Viahility of Lau v. Nichols, Supra:
However, even accepting
Lau's implication that
impact alone is in some
contexts sufficient to
establish a prima facie
violation of Title VI,
contrary to our view
that Title VI's defini-
tion of racial discrimi-
nation is absolutely
coextensive with the Con-
Stitution's, this would
not assist the respondent
in the least.
“6: 0.8.0. at 4918 (emphasis added).
See also, 46 U.S.L.W. at 4927 (Opinion
Of Justice White) and 46 U.S.L.W. at
4931 (opinion of Justice Blackmun).
Thus, notwithstanding
whatever Standards courts have ap-
Plied to Title VI analysis in the
-34-
past, a majority of this Court in Inexplicably, however, the
Bakke have established that Title Court of Appeals totally ignored
VI's standards for determining Bakke in its discussion of Title
racial discrimination are coexten- VI.*
sive with constitutional standards.* By failing to consider
this Court's construction of
¥Reference to the remarks of Title VI as set forth in Bakke
Senator Humphrey, a strong pro- Sa
ponent of the 1964 Civil Rights the Court of Appeals' re j
Act, supports this construction PP one
of Title vI: was fatally defective. For if,
The existing law of as the court stated, the Ti
the land is stated in : seen
section 601 [42 U.S.C. VI standard of racial di imi-
§ 2000d] Section wasn
2000d-2] of H.R. 7152
do not represent an ex-
tension of that law. *Yet, it is interesting to note
Those latter sections that the Court of Appeals speci-
represent no new power. fically cited Bakke's apparent
approval of a disparate impact
110 Cong. Record 5254 (1964 ). test under Title VII of the 1964
Senator Humphrey later added: Civil Rights Act.
No new rights are
granted here [§§ 601,
602] nor are any taken
away; but here we have
a prescribed means of
enforcing these rights.
-36-
Id. 5255
-35-
construing the correct standard
for determining eligibility under
ESAA, it is significant that the
court failed to consider Bakke's
effect on the Title VI. Slip
Opinion at 4538-4539.
(2)
By failing to take ac-
count of Bakke in relying on Title
VI as a basis for concluding that
ESAA incorporates the disparate ra-
cial impact test, the Court of
Appeals avoided the essential in-
quiry of whether ESAA contains a
separate and distinct standard from
o37-
Title VI that would justify a
denial of ESAA funding where
there is only a disparate ra-
cial impact. For it is clear
that after Bakke, application
of Title VI standards to review
of eligibility for ESAA funding
requires that constitutionally
prohibited conduct be demonstra-
ted before ESAA ineligibility
may be established. The Court
of Appeals failed to directly
decide the question of separate
eligibility standards under ESAA
Since it held, notwithstanding
Bakke, that both ESAA and Title
VI employ the disparate racial
impact standard.
o38—
In order to resolve this
issue, it is essential to recognize
that interpreting 20 U.S.C. $1602(a)
as incorporating the disparate racial
impact test, as did the Court of Appeals,
makes 20 U.S.C. $1602(b), which incor-
porates the post-Bakke Title VI constitu-
tional intent standard, superfluous. That
is, the more stringent disparate impact
test necessarily incorporates the less
stringent constitutional intent test and
thus obviates the need for the more liberal
standard. It is well established that con-
struing a statutory provision as superflu-
ous is contrary to recognized rules of
statutory construction and thus invalid.
Cf. United States v. Menasche, 348 U.S.
528, 538-539 (1955); Zeigler Coal Co. Vv.
Kleppe, 536 F. 24 398 (D.C. Cir. 1976).
-39-
Instead, petitioners submit
that ESAA's standards for determining
eligibility for funding are absolutely
and exclusively coextensive with the
standards for determining racial is-
crimination under Title VI. At least
two Federal Court decisions support
this conclusion, Bradley v. Milliken,
432 F. Supp. 885 (E.D. Mich. 1977);
Robinson v. Vollert, 411 F. Supp.
461(S.D. Tex. 1976). It was held
in Bradley that:
ESAA does not enhance
HEW's power to apply
eligibility criteria
above and beyond Title
VI of the Civil Rights
Act of 1964, 42 U.S.C.
§ 2000d.
461 F. Supp. at 866. In so holding,
the Bradley Court relied on Robinson
where the issue was whether ESAA
-40-
permitted HEW to review the sufficiency
of a federal court desegregation order
in determining whether ESAA's eligibil-
ity requirements had been met. After a
review of ESAA's legislative history
in a futile attempt to identify the
relevant Congressional intent, the court
turned to Title VI for guidance. Title VI,
the Robinson court found, is "intimately
related" to ESAA and therefore the rule
under Title VI would apply to ESAA as well.
Robinson v. Vollert, supra, 41ll F. Supp.
shia
at 475. The court made no
intimation that ESAA might
contain some basis, independent
of Title VI, that would justify
a result different from that
mandated by the 1964 Civil
Rights Act. Accordingly, in
Robinson, Title VI's recognized
proscription of administrative
review of the sufficiency of
federal court desegration
-42-
orders was applied to ESAA.*
* Quoting from Stribling v. United
States, 419 F. 2d 1350, 1352-53
(8th Cir. 1969), the Robinson
court remarked:
',.-where the inter-
pretation of a particu-
lar statute at issue is
in doubt, the express
language and legisla-
tive construction of
another statute not
strictly in pari
materia but employing
similar persons, things
Or cognate relationships
may control by force
of analogy.'
Robinson v. Vollert, supra, 41l F.
Supp. at 475 n. 31. See, Overstree
v. North Shore Corp., 318 U.S. 125,
131-132 (1943).
~43<
No other federal courts have
so closely scrutinized the relationship
between ESAA and Title VI. Accordingly,
it is respectfully submitted that the
reasoning in Bradley and Robinson should
be given considerable weight by this
Court in reviewing petitioners' argument
that the correct and sole eligibility
standard for ESAA funding must be found
in Title VI. And, as stated above, this
Court's decision in Regents of the
University of California v. Bakke, requires
that the constitutional intent test is the
applicable standard under Title VI, and
thus ESAA as well.
=ig@
(3)
Underlying the present controversy
between the City of New York and HEW is
the serious question of the relationship
between this major federal administrative
agency and local school authorities. HEW
is of the view that disparate racial im-
pact per se constitutes ineligibility for
_ESAA funding; the ESAA applicant's justi-
fications for the racial statistics are
irrelevant. The Court of Appeals in this
case has apparently taken a less extreme
position in that it considered the Board's
justifications for the challenged teacher
assignments, although finding them to be
inadequate to rebut the prima facie showing
of discrimination. However, the net effect
of the Second Circuit's decision is to re-
quire a local educational agency to meet a
-45-
virtually insurmountable burden in justi-
fying a statistical showing of disparate
racial effect. As a result, HEW's authority
to interfere with the local educational pro-
cess is greatly enhanced. And concommit-
antly, adoption of its disparate racial im-
pact test significantly dilutes the judicial
power to review administrative decisions.
Indeed, District Court Judge Jack B.
Weinstein, in a pending related case arising
Out of HEW's decision to deny the Board's
1978-79 application for ESAA funding,*
evidenced concern over the practical effect
of the Court of Appeals ruling in this case:
*Board of Education, et al. v. Califano, et
al.78C2135(E.D.N.Y). Judge Weinstein has entered
an injunction in that case maintaining the
fund earmarked for the Board and has re-
manded the Board's application to HEW to de-
termine if the Board is entitled to a waiver
of ineligibility under 20 U.S.C. 81605.
-46-
The net result of these two* cases
is to make practically unreviewable
any insistence by HEW directed to a
unit such as the Board of Education
of the City of New York to changes
being made in its practices with
respect to assignment of teachers.
Under these circumstances, practi-
cally, the City has no alternative
but to “voluntarily” agree to any
conclusions and demands of HEW.
Again, this may be a perfectly sound
position and this Court has no objec-
tion to it, but the combined impli-
cations with respect to a shift of
power from the Courts to HEW and
from local education authorities
(to) the national education authori-
ties, is sO grave as to warrant full
consideration by the appellate courts
of this nation.
Board of Education v. Califano, No. 78C
2135 (E.D.N.Y.) transcript of September 28,
1978 proceedings on plaintiff's motion for
*Judge Weinstein is referring here to the
Court Of Appeals decision in the instant
case and Caulfield v. Board of Education,
No. 78C 6035 (2d Cir., September 5, 19738)
(attached hereto as Appendix IV.) Caulfield
held that an agreement reached between HEW
and the Board to resolve the Title VI vio-
lation letter which provided the underlying
data upon which the Board's ESAA applica-
tion was denied,was not voluntary and,
therefcre, was void.
=47<
a temporary restraining order at p. 10
(attached hereto as Appendix V).
In conclusion, this case presents the
Court with the opportunity to clarify, in
light of Bakke, Title VI's enforcement role
and applicability to a federally funded
program designed to eliminate the effects
of racial discrimination. Also presented
is the opportunity to determine whether
the effects of the Court of Appeals'
decision, as articulated above by Judge
Weinstein, are in accord with this Court's
notion of federalism and the role of the
judiciary in resolving disputes between
the federal bureaucracy and local agencies.
-4 8-
CONCLUSION
For the foregoing reasons the
petition for a writ of certiorari should
be granted.
Respectfully submitted,
ALLEN G. SCHWARTZ,
Corporation Counsel
Attorney for Petitioners
100 Church Street, (212) 566-2192
New York, N. Y. 10007
By } Soren
Ve yation Counsel
ae TLE
A AIL : FA
éred@ M. MASHBERG(”
Assistant corporation Counsel
-49-
APPENDIX I
UNITED STATES COURT OF APPEALS
For tHe Seconp Circuit
-—_ =
Se
Nos. 1121, 1414—September Term, 1977.
(Argued May 26, 1978 Decided August 21, 1978.)
Docket Nos. 78-6083, 78-6088
,=——
or
”s
—
Boarp or Epvucation oF THE City ScHoou District oF THE
City or New York e¢ al.,
Appellants,
v.
JosepH A. Canivano, Jr., Secretary, Unitep States
DEPARTMENT oF HeaLtH, EpucaTion AND WELFARE et al.,
Appellees.
7
>
vy
Before:
Oakes, Circuit Judge, and BLUMENFELD® and
Meurtens,** District Judges.
a
=
SS
Appeals from orders of the United States District Court
for the Eastern District of New York, Jack B. Weinstein,
Judge, affirming Department of Health, Education and
Welfare’s denial of grant applications for Emergency
School Aid Act funds.
Affirmed.
v
° Of the District of Connecticut, sitting by designation.
oe Of the Southern District of Florida, sitting by designation.
4515
oj<
Rosemary Carro.u, Assistant Corporation Coun-
sel (Allen G. Schwartz, Corporation Counsel
of the City of New York, Leonard Koerner,
Assistant Corporation Counsel, of counsel),
for Appeliants.
RicHarp B. Caro, Assistant United States At-
torney (David G. Trager, United States At-
torney for the Eastern District of New York,
Harvey M. Stone, Rodger C. Field, As-
sistant United States Attorneys, of counsel),
for Appellees.
rr
Oaxes, Circuit Judge:
Consolidated appeals raise the important question
whether in passing upon applications for grants of Emer-
gency School Aid Act (ESAA)' funds the Department of
Health, Education and Welfare (HEW) must apply a con-
stitutional standard of intentional discrimination as de-
lineated by the Supreme Court® or whether the ESAA as
1 20 U.S.C. §§ 1601-19,
2 Dayton Bd. of Educ, v. Brinkman, 433 U.S, 406, 413 (1977); Village
of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,
268-69 (1977); Washington v. Davis, 426 U.S. 229, 242 (1976); Keyes
v. School Dist. Number One, 413 U.S. 189, 201-03 (1973). These cases,
interpreting the Fourteenth Amendment, hold that a “finding that the
pupil population in the various [city, town or village] schools is not
homogeneous, standing by itself, is not a violation of the Fourteenth
Amendment in the absence of a showing that this condition resulted
from intentionally segregative actions on the part of the Board.” Dayton
Bd. of Educ. v. Brinkman, supra, 433 U.S. at 413. Six members of
the Supreme Court appear to be on record that this involves “[f]ind-
ings as to the motivations of multi-membered publie bodies ... .”
Id. at 414. A seventh, Mr. Justice Stevens, while agreeing with this
broad proposition, has expressed the qualification that such a finding
“necessarily depends primarily on objective evidence concerning the
effect of the Board’s action, rather than the subjective motivation of
one or more members of the Board ....” Id. at 421 (Stevens, J., con-
4516
ate
supplemented by HEW regulations permits application
of a disproportionate impact standard of discrimination.
Appellants are respectively the Board of Education of the
City School District of the City of New York (the Central
Board) and the Community School Board (CSB) of Com-
munity School District 11 (District 11).
The two school boards sued to enjoin HEW from hold-
ing them ineligible for ESAA assistance. The United
States District Court for the Eastern District of New
York, Jack B. Weinstein, Judge, initially upheld HEW’s
denial of ESAA funds. But upon the Central Board’s
motion for reargument, the district court vacated its prior
decision and remanded the matter to HEW for “further
consideration” to determine if the school boards’ disquali-
fication resulted from unconstitutional discrimination as
well as from violations of the applicable regulations. Af-
ter remand the district court affirmed HEW’s conclusion
that substantial evidence warranted a finding of both un-
constitutional discrimination and discrimination in viola-
tion of the ESAA. Accordingly, it entered a final order
granting judgment in favor of HEW. We affirm the judg-
ment on the basis that tae standards of the statute and
regulation have been satisfied.
I. Statutory Scheme
On an annual basis, the ESAA provides special assis-
tance to local educational agencies and other eligible or-
ganizations to achieve three basic statutory objectives:
curring) ; see Washington v. Davis, supra, 426 U.S. at 253-54 (Stevens,
J., concurring). For an exhaustive discussion of impact and motive,
see Eisenberg, Disproportionate Impact and Illicit Motive: Theories
of Constitutional Adjudication, 52 N.Y.U.L. Rev. 36, 42-50, 99-105
(1977). See also Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), petition
for cert. filed, 47 U.S.L.W. 3010 (U.S. July 18, 1978).
4517
aQ=
(1) to meet the special needs incident to the elim-
ination of minority group segregation and discrimina-
tion among students and faculty in elementary and
secondary schools;
(2) to encourage the voluntary elimination, reduc-
tion, or prevention of minority group isolation in
elementary and secondary schools with substantial
proportions of minority group students; and
(3) to aid school children in overcoming the educa-
tional disadvantages of minority group isolation.
20 U.S.C. §1601(b). Thus, the ESAA is a program pur-
posefully designed “to aid in desegregating schools and
support quality integrated schools.” °
3 S. Rep. No. 604, 92d Cong., 2d Sess. (1972), reprinted in [1972]
U.S. Code Cong. & Ad. News 2595, 2600. Funds granted under the
ESAA are apportioned on a numerical basis, on “the relative number
of minority group children enrolled in the elementary and secondary
schools of each State ....” Jd. at 2601. An important congressional
objective, incorporated in the statute itself, is “the elimination of mi-
nority group isolation to the maximum extent possible” in all the schools
of a given district, id. thereby seeking with federal funding to carry
out the longstanding commands of Brown v. Board of Educ., 347 U.S.
483, 493 (1954) (segregation of children in public schools solely on
the basis of race, even though the physical facilities and other tangible
factors may be equal. deprives minority children of equal educational
opportunities).
The House-Senate Conference Committee reported:
Purpose ——The House amendment stated the purpose of the title
as providing financial assistance to meet the special needs incident
to desegregation and to encourage voluntary integration. The
Senate amendment stated the purpose as encouraging comprehen-
sive planning for the elimination of minority group isolation, as
providing financial assistance to establish stable, quality, integrated
schools, as assisting in eliminating minority group isolation, and
as aiding schoolchildren in overcoming the educational disadvan-
tages of minority group isolation. The conference substitute re-
tains the House provisioa with the one addition of the Senate ref-
erence to aiding schoolchildren in overcoming the educational dis-
advantages of minority group isolation.
4518
aga
Each year that an application for ESAA assistance is
submitted, the application is evaluated and the eligibility
of the applicant reviewed. ESAA funds are awarded to
qualified applicants in the order in which their applications
are ranked. The ranking depends on compliance with
specified guidelines and criteria, the most important being
“objective” in nature. 45 C.F.R. §185.14(a), (b) & (c).*
Policy with respect to the application of certain provisions of
federal law.—The House amendment stated the policy of the United
States that guidelines and criteria established pursuant to this title
shall be applied uniformly in all regions of the United Siates
in dealing with conditions of segregation by race in the schools
of the local educational agencies of any State without regard to
the origin or cause of such segregation. The Senate amendment
stated the policy of the United States that guidelines and criteria
established pursuant to Title VI of the Civil Rights Act, section
182 of the Elementary and Secondary Education Amendments of
1966, and this title shall be applied uniformly in all regions of
the United States in dealing with conditions of segregation by
race whether de jure or de facto in the schools of the local edu-
cational agencies of any State without regard to the origin or
cause of such segregation. The conference substitute retains hoth
the Senate and House provisions but deletes the reference in the
Senate amendment to this title. The conference substitute’s version
of the Senate provision, therefore, restates the policy contained
in section 2(a) of Public Law 91-230 and in no way supercedes
[sic] subsection (b) of such section.
Conf. Rep. No. 798, 92d Cong., 2d Sess. (1972), reprinted in [1972]
U.S. Code Cong. Ad. & News 2608, 2662-63 (emphasis added). Thus,
superimposed upon the underlying purposes of the ESAA is a require-
ment of uniform application throughout the country, irrespective of
the origin or cause of segregation. This is expressed in 20 U.S.C.
§ 1602(a) as follows:
It is the policy of the United States that guidelines and criteria
established pursuant to this chapter shall be applied uniformly in
all regions of the United States in dealing with conditions of
segregation by race in the schools of the local educational agencies
of any State without regard to the origin or cause of such seg-
regation.
4 Eighty “points are awarded on the basis of ‘objective criteria,’ as
follows: 30 points on the basis of “need” as determined by the number
and percentage of minority group children in the applicant’s schools
The ESAA program is competitive in nature since the
amount appropriated by Congress is less than the total
amount of the grants sought; only those applications which
meet ESAA objectives to the greatest extent possible are
the ones which receive the awards. Id. § 185.14(c) (4).
In addition to filing applications which are timely’ and
which meet the minimal technical/qualitative criteria, see
20 U.S.C. §§ 1605(a), 1606-09; 45 C.F.R. § 185.14,” the
applicant must establish that it has not engaged in any
of the four disqualifying acts, practices, policies or pro-
cedures condemned by the statutes and regulations. 20
U.S.C. § 1605(d) (1) ;° 45 C.F.R. § 185.13(1).° The Assistant
as compared to other school districts in the state; 50 points on the
basis of “the effective net reduction in minority group isolation” (in
terms of the number and percentage of children affected) or, in the
case of certain types of assistance applications, the “effective net pre-
vention of minority group isolation.” 45 C.F.R. § 185.14(a) (1977).
In addition to points awarded for objective criteria, 45 “points” are
awarded on the basis of (1) “needs assessment,” (2) “statement of
objectives,” (3) “activities” (including specificity of project design,
staffing, delivery of services, and parent and community involvement),
(4) “resource management” and (5) “evaluation.” The point awards
are determined by the Assistant Secretary who is authorized to seek
expert assistance. Id. § 185.14(b). Criteria for funding include (1)
program cost and (2) amount of funds available for assistance within
the state in relation to other pending state applications. Id. § 185.14
(c)(1). Fewer than 40 points under § 185.14(a) or 28 points under
$ 185.14(b) result in automatic denial (subject to resubmission). Jd.
§ 185.14(¢)(2) & (3). Section 185.14(¢)(4) and (5) establish the
procedures for award of funds on the basis of application rank.
5 The Assistant Secretary specifies the times by which applications
must be filed, 20 U.S.C. § 1609(e).
6 Some of the criteria are set forth in note 4 supra.
7 See note 4 supra.
8 20 U.S.C. $ 1605(d)(1) provides:
No educational agency shall be eligible for assistance under this
chapter if it has, after June 23, 1972—
(A) transferred (directly or indirectly by gift, lease, loan, sale,
or other means) real or personal property to, or made any ser-
(footnote 9 appears on page 4522)
4520
ofa
; is not ineligible. Se ;
Secretary for Education may not approve the application statute itself forbids ~sholtcawh hapsipstaeels While the
unless it is determined by the Secretary that the applicant tion or assignment of teachers em sprains re wal
’ , the pertinent
vices available to, any transferee which it kuew or reasonably
should have known to be a nonpublic school or school system (or
any organization controlling, or intending to establish, such a school
or school system) without prior determination that such nonpublic
school or school system (i) is not operated on a racially segre-
gated basis as an alternative for children seeking to avoid atten-
dance in desegregated public schools, and (ii) does not otherwise
practice, or permit to be practiced, discrimination on the basis of
race, color, or national origin in the operations of any school
activity ;
(B) had in effect any practice, policy, or procedure which results
in the disproportionate demotion or dismissal of instructional or
other personnel from minority groups in conjunction with deseg-
regation or the implementation of any plan or the conduct of any
activity described in this se-tion, or otherwise engaged in discrim-
ination based upon race, color, or national origin in the hiring,
promotion, or cssignment of employees of the agency (or other
personnel for wowm the agency has any administrative respon-
sibility) ;
(C) in conjunction with desegregation or the conduct of an
activity described in this section, had in effect any procedure for
the assignment of children tc or within classes which results in
the separation of minority group from nonminority group children
for a substantial portion of the school day, except that this clause
does not prohibit the use of bona fide ability grouping by a local
educational agency as a standard pedagogical practice; or
(D) had in effect any other practice, policy, or procedure, such
as limiting curricular or extracurricular activities (or participation
therein by children) in order to avoid the participation of minority
group children in such activities, which discriminates among chil-
dren on the basis of race, color, or national origin;
except that, in the case of any local educational agency which is
ineligible for assistance by reason of clause (A), (B), (C), or
(D), such agency may make application for a waiver of ineligibil-
ity, which application shall specify the reason for its ineligibility,
contain such information and assurances as the Secretary shall
require by regulation in order to insure that any practice, policy,
or procedure, or other activity resulting in the ineligibility bas
ceased to exist or occur and include such provisions as are neces-
sary to insure that such activities do not reoccur after the sub-
mission of the application.
(Emphasis added. )
4521
=F
regulation in this case is 45 C.F .R. § 185.43(b)(2).22 In
9 Section 185.13 provides in pertinent part:
Such application shall contain .
eas yr “ortoyanncayd yn a applicant has not had or main-
e date of its application for assistan
under the Act, and will not have or maintain i cen
to such date, any practice, policy, or omaha og
minority group personnel in violation of § 185.43(b) (or ‘a :
such a violation has occurred, application for a waiver of ineligi-
bility has been made to the Secretary); and (ii) a statement of
nse of ag full-time classroom teachers, and athletics
d coaches, by race, for the academic i i
ceding (a) the year in which the one toe an ytd
yd bane val nfl cep for desegregation or for elimination or
order of a Saas ox Mics cure ‘ = dee ee
or admini i
(b) the year in which the applicant first seinen aud a
of a plan or project described in § 185.11, whichever is ! ler,
and of the number of principals, full-time classroom teach ong an
athletics head coaches, by race, as of the date of its a i neta
; (3) Gi) An assurance that the applicant has not Si pany
ryan nd eigcsingie ey pa of its application for assistance
: ave vr maintain j
to Pp procedire for “eet rard pr
in violation of § 185.43(c) (or that i i i
application for a a . co eg pPangerese aac
Secretary) ; and (ii) a statement of the total number protons
assigned by the applicant as of the date of the a Nicatic ‘
all-minority or all-nonminority classes for more than 5 var -
the school day classroom periods, with an educational Kae be
or explanation for any such assignments[.] rey
10 20 'U.S.C. § 1605(d) (4) provides:
No application for assistance under this chapter shall be ap-
proved prior to & determination by the Secretary that the a i
cant is not ineligible by reason of this subsection re
1 45 C.F.R. § 185.43(b) (2) provides:
> st genes agency shall be eligible for assistance under the
et if, after June 23, 1972, it has had or maintained in effect
4522
-8-
substance, the regulation makes ineligible for assistance
an educational agency which after June 22, 1972, has
utilized a procedure resulting, inter alia, in the discrimina-
tory “assignment of full-time classroom teachers to the
schools of such agency in such a manner as to identify any
of such schools as intended for students of a particular
race, color, or national origin.” ™
II. Underlying Facts
Teaching and supervisory appointments to public schools
in New York City are now and have traditionally been
made by the Chancellor of the Central Board. High school
teachers are appointed by the Chancellor from a list of
eligible candidates.'* The list of eligible candidates is pre-
any other practice, policy, or procedure which results in discrim-
ination on the basis of race, color, or national origin in the re-
eruiting, hiring, promotion, payment, demotion, dismissal, or as-
signment of any of its employees (or other personnel for which
such agency has any administrative responsibility) ....
12 Id. Only the Secretary of HEW himself may grant waivers of the
disqualifying practices. See 20 U.S.C. §1605(d)(1), (2) & (3).
13 (a) The chancellor shall appoint and assign teachers for all
schools and programs under tbe jurisdiction of the city board from
persons on competitive eligible lists.
(b) The chancellor shall appoint and assign all supervisory per-
sonnel for all schools and programs under the jurisdiction of the
city board from persons on qualifying eligible lists.
(ce) Each community board shall appoint teachers for all schools
and programs under its jurisdiction who are assigned to the dis-
trict by the chancellor from competitive eligible lists. Insofar as
practicable the chancellor, when making such assignments shall
give effect to the requests for assignment of specific persons by
the community board. The community board shall appoint such
teachers to schools within such district within thirty days if such
appointment is to be effective on a date subsequent thereto and
within three days if such appointment is to become effective
immediately. .. .
N.Y. Educ. Law §2590-j(4)(a)-(c) (McKinney 1970).
4523
af.
pared by the Board of Examiners, which ranks each can-
didate on the basis of a competitive examination.“
14 3.(a)(1) The board of examiners shall prepare and administer
objective examinations to determine the merit and fitness of all
candidates for teaching and supervisory service positions, other
than the positions of chancellor, executive deputy city superin-
tendent, deputy city superintendent, assistant city superintendent
and community superintendent. Examinations for teaching posi-
tions may consist in part of the National Teachers Examination
administered by the Educational Testing Service of Princeton, New
Jersey.
(b)(1) Examinations for teaching positions shall be open com-
petitive.
(2) Examinations for all supervisory service positions shall be
open qualifying.
(3) The board of examiners may establish an eligible list for
any class of positions for which it finds inadequate numbers of
qualified persons available for recruitment. Such examination shall,
so far as practicable, be constructed and rated so as to be equiv-
alent. Candidates who pass any such examination and who are
otherwise qualified shall be placed on such list in the rank corre-
sponding to their grade... .
(e) All lists of eligibles for supervisory or administrative posi-
tions which are in existence and which were placed in abeyance,
and appointments from which were prohibited by a temporary re-
straining order of the United States District Court on the twenty-
third day of July nineteen hundred seventy-one, or the preliminary
injunction of the said court dated September seventeenth, nineteen
hundred seventy-one, continuing such prohibition, and of which lists
those that are scheduled to expire prior to March first, nineteen
hundred seventy-five shall be deemed extended to March first, nine-
teen hundred seventy-five, as though such were the date on which
such lists were originally scheduled to terminate or expire.
Id. § 2590-j(3) (MeKinney Supp. 1977). Reference in subparagraph
(c) is presumably to the litigation in Chance v. Board of Examiners,
330 F. Supp. 203 (S.D.N.Y. 1971), aff'd, 458 F.2d 1167 (2d Cir. 1972)
(preliminary injunctive relief upheld). See generally Chance v. Board
of Examiners, 561 F.2d 1079 (2d Cir. 1977); Chance v. Board of
Examiners, 534 F.2d 993 (2d Cir. 1976), cert. denied, 431 U.S. 965
(1977); Chance v. Board of Educ., 496 F.2d 820 (2a Cir. 1974).
New York City and Buffalo, we are informed, are the only New
York school districts which administer local teacher examinations in
addition to the state licensing requirements. Buffalo’s procedures have
also been the subject of litigation. Arthur v. Nyquist, supra.
In 1969 the New York City school system was “decentral-
ized” and thirty-two separate community school districts
(CSDs) were established. Each CSD was vested with pri-
mary authority over the operation of the elementary and
junior high schools within its district." Although the
Chancellor alone appoints high school teachers, elementary
and junior high school teachers may be appointed in either
of two ways. One of these is the traditional method of
assignment by the Chancellor. The community school
boards must abide by the Chancellor’s designation.** How-
ever, the Chancellor “insofar as practicable . . . shall give
effect to the requests for assignment of specific persons
by the community board.” An alternative method is avail-
able for use only in those elementary and junior high
schools whose students rank in the lower 45% on a com-
prehensive reading examination which is administered an-
nually to students in schools within the jurisdiction of the
local community districts." The community school districts
15 Each community board shall have all the powers and duties,
vested by law in, or duly delegated to, the local school board
districts and the board of education of the city district on the
effective date of this article, not inconsistent with the provisions
of this article and the policies established by the city board, with
respect to the contro! and operation of all pre-kindergarten, nur-
sery, kindergarten, elementary, intermediate and junior high schools
and programs in connection therewith in the community district.
N.Y. Educ. Law § 2590-e (McKinney Supp. 1977).
16 See id. §2590-j(4)(e) (McKinney 1970), yuoted im note 13 supra.
17 Ta.
18 The chancellor shall cause a comprehensive reading examination to
be administered to all pupils in all schools under the jurisdiction
of the community districts annually. Prior to October first of every
year each school shall be ranked in order of the percentage of
pupils reading at or above grade level as determined by such
examination, in accordance with rules to be promulgated by the
chancellor.
Id. § 2590-j(5)(a) (McKinney Supp. 1977).
4525
-ll-
may directly appoint teachers to such “45% schools” if the
individual has passed either a qualifying examination pre-
pared by the Board of Examiners or the National Teachers
Examination."
Irrespective of how the teachers are appointed, ultimate
control still remains with the Chancellor. He retains the
power to rescind illegal teacher assignments and to compel
a local board’s compliance with all applicable provisions of
law.” In addition, he is vested with all powers and duties
19 The board of each eligible school may . . . appoint any person
a teacher in such school . . . without regard to any competitive
pr lists . . . provided that such person, will ... have the
ucation and experience qualifications for certificati
amy sa cation as a teacher
(i) passed a qualifying examination to be prepared and admuin-
istered by the board of examiners, . . . or be on an existing com-
petitive eligible list for such position; or
(ii) passed the National Teachers Examination within the past
four years at a pass mark equivalent to the average pass mark
required of teachers during the prior year by the five largest cities
in the United States which use the National Teachers Examination
as @ qualification, as determined by the chancellor.
Id. § 2590-j(5)(e) (McKinney 1970).
20 1. If, in the judgment of the chancellor any community board
fails to comply with any applicable provisions of law, by-laws,
rules or regulations, directives and agreements, and after efforts
at conciliation with such community board have failed, he may
issue an order requiring the community board to cease its improper
conduct or to take required action and consistent with the provi-
aed of obs and the educational and operational policies
0 city d, may enforce that order by the use of i
. ee : y of appropriate
(a) supersession of the community board b
, y the chancellor or
~— wg cme by him with respect to those powers and duties
of such community board deemed necessary to ensure
with the order; and ae
(b) suspension or removal of the community boar mem
ber or members thereof. say dita
Id. $ 2590-3.
4526
=12-
of the superintendent of schools of the city district** which
include “the power to transfer teachers from one school to
another.” *
The ESAA applications here at issue were for grants
in the 1977-78 school year. See note 34 infra. To analyze
whether there was compliance with the statute and regula-
tions, HEW used 1975-76 data. Racial and ethnic statis-
tics**? demonstrated that in school year 1975-76 62.6% of
high school students were minority students whereas 8.2%
of high school teachers were minority teachers.** Seventy
per cent of minority high school teachers were assigned to
high schools in which minority student enrollment exceeded
21 Id. § 2590-h (McKinney Supp. 1970).
22 The superintendent of schools of a city shall possess, subject to
the by-laws of the board of education, the following powers «
be charged with the following duties:
6. To have supervision and direction of associate, assistant, dis-
triet and other su rintendents, directors, supervisors, principals,
teachers, lecturers, medical inspectors, nurses, auditors, attendance
officers, janitors and other persons employed in the management
of the schools or the other educational activities of the city au-
thorized by this chapter and under the direction and management
of the board of education; to transfer teachers from one school
to another, or from one grade of the course of study to another
grade in such course, and to report immediately such transfers to
said board for its consideration and action; to report to said board
of education violations of regulations and cases of insubordination,
and to suspend an associate, assistant, district or other superin-
tendent, director, supervisor, expert, principal, teacher or other em-
ployee until the next reguler meeting of the board, when all facts
relating to the case shall be submitted to the board for its con-
sideration and action.
Id. § 2566-6 (McKinney 1970).
23 An injunction against the collection of such racial data has been
sought in a related action. Caulfield v. Board of Educ., No. 78-6035
(2d Cir. filed Feb. 28, 1978).
24 In the case of District 11 in 1975-76, 11.2% of its elementary school
teachers and 63.9% of its elementary school students were members of
minority groups.
4527
-13-
70%, even though these high schools employed only 48%
of the system’s high school teachers. Conversely, in high
schools in which there were proportionately a low number
of minority teachers, minority student enrollments were
below 40%.**
25 The high schools with proportionately a high or low number of
minority teachers are as follows:
High Schools With Minority
Student Enrollments Over 90% % Minority Teachers
Harlem 100% 70.0%
Ben Franklin 98.3 27.9
Park East 93.8 40.0
Harlem Prep 98.4 69.2
Lower East Side 100 63.2
M. L. King, Jr. 96.0 25.0
Satellite Acad. 92.7 25.0
Jane Addams 98.7 34.3
Boys & Girls 99.9 20.9
Eastern District 97.0 18.0
Bushwick 94.2 20.4
Pacific 99.8 37.5
Redirection 97.7 47.6
August Martin 97.6 16.7
High Schools With Minority
Student Enrollments Under 40% % Minority Teachers
Stuyvesant 31.0% 2.8%
Bronx H.S. of Science 31.3 2.8
Lafayette 29.2 0.6
Midwood 32.6 1.7
Abraham Lincoln 37.0 0.7
James Madison 35.6 0.9
New Utrecht 22.5 0.0
Fort Hamilton 30.0 3.7
Sheepshead Bay 32.5 3.7
F.D. Roosevelt 29.4 1.8
South Shore 36.9 2.4
William Grady 22.2 0.0
Benjamin Cardoza 38.5 3.2
Francis Lewis 36.9 1,7
Forest Hills 38.8 0.8
Long Island City 30.2 2.8
Richmond Hill 28.5 3.4
(Table continued on next page)
4528
«2 4=
Similar correlations between the racial/ethnic composi-
tion of the faculty of community school districts and the
racial/ethnic composition of the student bodies within
those school districts exist. For the same school year, 14.3%
of the teachers and 69.7% of the students in elementary
schools were minority, and 16.7% of the teachers and
70.1% of the junior high school students were minority.
Quite clearly, the schools with minority student enrollments
over 90% identifiably had the highest percentage of minor-
ity faculty by a substantial margin.** Similarly, community
school districts with minority student enrollments under
50% contained a disproportionately low percentage of
minority factulty.”’
(continued from preceding page)
High Schools With Minority
Student Enrollments Under 40% % Minority Teachers
Bayside 30.4 13
New Dorp 4.3 0.0
Curtis 32.1 3.0
Tottenville 3.7 1.9
Susan E. Wagner 13.0 2.5
Ralph McKee 19.1 3.1
26 CSDs With Minority Student
Enrollments Over 90% % Minority Teachers
cSD # 1 93.6% 10.4%
4 98.8 24.6
5 99.2 56.7
7 99.0 27.9
9 97.7 26.9
12 98.3 26.7
13 97.0 34.7
14 90.3 14.6
16 99.6 39.0
17 96.1 16.8
19 91.5 12.2
23 99.6 30.0
27 CS8Ds With Minority Student
Enroliments Under 50% % Minority Faculty
csD- 20 31.5% 0.4%
21 34.9 2.5
(Table continued on next page)
Upon the “remand” to HEW,; HEW found that the racial
assignment of faculty in the central school district was,
as HEW put it, “strikingly illustrated by the absence of
minority teachers” at certain academic, i.e., nonvocational
high schools. Ten of these were demonstrated to have a
disproportionately low number of full-time minority teach-
ers in the 1975-76 school year. All ten of these schools were
among the thirteen academic high schools* with full-time
faculties having a percentage of black teachers at or below
two standard deviations,?* which was 1.2%; the mean of
(continued from preceding page)
CSDs With Minority Student
Enroliments Under 50% % Minority Faculty
22 29.1 1.7
24 44.0 5.9
25 29.5 2.6
26 25.8 2.7
27 48.4 7.3
30 48.8 6.2
31 16.3 3.1
Other information indicates that ten of the 32 CSDs in New York City
employ minority faculty members in excess of 20%. Those CSDs have
minority student enrollments varying from 86.7 to 99.6 percent.
28 Academic High Schools o% black Total teachers
CP TEST Cae ck LAPP IEE ET 9 109
END Gee Te DD) ba 6 166
I mv N OM ARI) REFERS Wb RN CLL 9 115
Adrabam Limeobn ono... sac. cccccscscics 7 137
PE IPN aero 9 117
ON PUI ident seas Loe Oe 0.0 163
RO I a 6 163
rhs I te a 1.2 169
Ren oe Were er Ses 4 137
ANE Oe 121
RRA TER aE, Sar aes 0.0 125
RE ECRES, SEAS DOE Se PERRY OE Pf 150
New Dorp 0.0 105
29 In Castaneda v. Partida, 430 U.S. 482, 496-97 & n.17 (1977), a grand
jury discrimination case, the Court adopted a statistical methodology
used in the social sciences for the prediction of fluctuations from an
expected value, known as the standard deviation, defined for the bi-
nomial distribution as the square root of the product of the total num-
4530
=16=
full-time black teachers in academic high schools system-
wide was then 5.2%.
To take another example for the same school year, 8.2%
of academic high school teachers in the Central Board’s
employ were members of minority groups, black or His-
panic. Lafayette High School, for one, with a total of 166
teachers had only one minority teacher, even though it
could have been expected based on systemwide statistics
ber in the sample (n) times the probability of selecting a minority
(p) times the probability of selecting a non-minority (q), thus Y npq.
To express the standard deviation in proportionate terms, the formula
is VOX The statistical approach was also utilized by the Court in
a school segregation case, Hazelwood School Dist. v. United States, 433
U.S. 299, 308-09 & n.14 (1977):
A precise method of measuring the significance of such statistical
disparities was explained in Castaneda v. Partida, 430 U.S. 482,
496-497, n.17. It involves calculation of the “standard deviation”
as a measure of predicted fluctuations from the expected value of
a sample. Using the 5.7% figure as the basis for calculating the
expected value, the expected number of Negroes on the Hazelwood
teaching staff would be roughly 63 in 1972-1973 and 70 in 1973-
1974. The observed number in those years was 16 and 22, respec-
tively. The difference between the observed and expected values
was more than six standard deviations in 1972-1973 and more than
five standard deviations in 1973-1974. The Court in Castaneda
noted that “[a]s a general rule for such large samples, if the dif-
ference between the expected value and the observed number is
greater than two or three standard deviations,” then the bhypoth-
esis that teachers were hired without regard to race would be sus-
pect. 430 U.S., at 497 n. 17.
See id. at 311-12 n.17. In this case the standard deviation is 1.94%
above or below 5.1%, or p, since the average size of academic high
school faculties is 128 teachers, and 94.9% is the non-black force of
teachers at those schools. The square root of ce is 1.94%. Thus, in
reference to the schools listed in note 28 supra, all have a standard
deviation of two or more: 5.1% (minority teachers in all academic
high schools) minus 1.94% (one deviation), 1.94% (a second devi-
ation) — 1.2%. If the same calculations are made for the schools
referred to in note 28 supra with respect to minorities in the teaching
population systemwide (8.2%), the difference between the expected per-
centage of minority teachers to the actual percentage is of course higher.
In the case of Lafayette, it would exceed three standard deviations.
4531
a3 F~
to have had fourteen minority teachers. Lafayette’s pro-
portion of minority students was 29.2%." In contrast, for
the same year Boys High School in Brooklyn had more
than two and one-half times the number of full-time minor-
ity teachers than the expected rate; its student body was
99.9% minority.”
These substantial disproportions are not contested by the
appellants, nor do they deny that the schools were statis-
tically “racially identifiable” as a result of the significant
disparities in staff assignments. The claim pressed below
and on this appeal has been limited to the argument that
the statute and reguiation must be construed to require
HEW to establish that the disparities resulted from pur-
30 HIGH SCHOOL LAFAYETTE (BROOKLYN)
=
=
Extent of 3
Deviation xz
5 >
3 eS © é
= Se Se ue [= = 3s = = 3
eS ES See eR TS
: OP
8 $F 33 83 SBS Gee
& Se Se, 8 Sta *~na sat
Cia Be z 2 =3 «33 z
S mPoupe =P RS SES =
» $ = § 3§ fag 2° =
“TS |S 1 Pell
School Year & 37 2* <a aS ° :
1971-72 _....... 241. 64% + #+15 1 6.17% 1 20.1%
1973-78 ......... - os 6.6% 14 1 7.1% 14:1 23.9%
1973-74 ...... §=6219 7.2% 16 1 6.2% 16:1 25.6%
1974-75 4... §«©6196 7.7% 15 1 6.7% 15:1 27.8%
1975-76 ww... 166 8.2 14 1 7.1% 14:1 29.2%
@) At least four schools within District 11 were racially identifiable. In
two schools with less than 40% minority students, there were 3.4%
minority teachers in one and none in the second. In two schools with
minority student concentrations over 92%, there were 29.8% and 24.1%
minority teachers. Data for 1977-78 reveal both a slight improvement
and a substantial regression. While IIEW removed one school from its
unsatisfactory list, the other three remained racially identifiable and
three aditiona] schools were deemed in violation of ESAA criteria.
4532
~1¢-
poseful or intentional discriminaton in the constitutional
sense. See note 2 supra.
III. Proceedings Before HEW and the District Court
Only one of the Central Board’s three basic grant ap-
plications survived program merit competition and ob-
tained a sufficient rank order standing to be considered
for funding.*? On November 9, 1976, the Office for Civil
Rights at HEW wrote to Chancellor Anker that it found
that teachers, principals and assistant principals were
assigned “in a manner that has created, confirmed and
reinforced the racial and/or ethnic identifiability of the
system’s schools ... .”** By letter dated July 1, 1977,
32 The Central Board and various community school districts in the city
filed a total of 32 applications for basic grants, pilot project grants
and bilingual project grants under the ESAA. Of the 32, 20 ultimately
demonstrated sufficient program merit to warrant approval in compe-
tition with other applications; 3 were above minimum program quality,
but were not successful in competing with other applicants; and 9
applications were not minimally acceptable. The 20 applications that
warranted approval initially could not be funded because all New York
City applicants were disqualified under § 1605(d) of the Act. How-
ever, all applicants except the Central Board and CSDs 10 and 11 were
able to establish their eligibility with the assistance and advice of the
Office for Civil Rights either by providing additional material at show
cause meetings pursuant to 45 C.F.R. § 185.46(a)(2) or by taking cor-
rective action and filing successful applications for waivers of ineligi-
bility. The federal defendants were thus able to provide $13,509,079
in ESAA grants to eligible New York City community school districts
for the 1977-78 school year. The basie grant total awarded New York
City applicants comprises approximately 659% of the basic grants
awarded to New York State.
The three New York City applicants unable to establish their eligi-
bility did not take the necessary corrective action to obtain _waixers of
ineligibility. CSD 10 did not sue to challenge the denial of its ESAA
application, but CSD 11 ($298,891) and the Central Board ($3,559,132)
did sue. Thus the only plaintiffs in this action which have not received
funds for which they applied are the Central Board and CSD 1]. Essen-
tially CSD 11’s application stands or falls with the Central Board's.
33 By letter dated January 18, 1977, to Chancellor Anker OCR con-
cluded that the Central Board had unlawfully failed to make available
4533
=i9-
fkoe
HEW notified the Central Board and District 11 that their
grant applications could not be funded because they did not
establish their eligibility under 45 C.F.R. § 185.43(b) (2).%
Thereafter, HEW afforded an opportunity to the Central
School Board.and to District 11 to achieve voluntary
resolution and apeaeanN under 42 U.S.C. § 2000d(1), -
—
ee et me eres oe
equal educational services to minority ¢. idren. These preliminary find-
ings were revised by a letter dated October 4, 1977, and became the
subject of formal administrative adjudieatory hearings in accordance
with 42 U.S.C. § 2000d-1 and 45 C.F.R. § 80.8. The October 4, 1977,
OCR letter stated, among other things, that students were being as-
signed in racially identifiable or isolated instructional settings in vio-
lation of Title VI. is finding would also constitute a
for_ineligibil under ESAA, 20 U. 05(d)(1)(C)-(D); 45
C.F.R. § 185.43(¢)-(d), the Centra Beira po HEW have settled their
differences and entered ‘ato a Letter of Agreement.
‘4
34 The regulation is quoted in part in note 11 supra and in part in
text accompanying note 12 supra. On June 20, 1978, HEW disapproved
the Central Board’s 1977-78 ESAA application.
35 42 U.S.C. § 2000d-1 provides in part:
Each Federal department and agency which is empowered to
extend Federal financial assistance to any program or activity, by
way of grant, loan, or contract ... is authorized and directed to
effectuate the provisions of section 2000d of this title with respect
to such program or activity by issuing rules, regulations, or orders
of general applicability which shall be consistent with achievement
of the objectives of the statute authorizing the financial assistance
in connection with which the action is taken. . . . Compliance with
any requirement adopted pursuant to this section may be effected
(1) by the termination of or refusal to grant or to continue assis-
tance under such program or activity to any recipient . .. or
(2) by any other means authorized by law: Provided, however,
That no such action shall be taken until the department or agency
concerned has advised the appropriate person or persons of the
failure to comply with the requirement and has determined that
compliance cannot be secured by voluntary means. In the case of
any action terminating, or refusing to grant or continue, assistance
because of failure to comply with a requirement imposed pursuant
to this section, the head of the Federal department c. agency shall
file with the committees of the House and Senate having legisla-
tive jurisdiction over the program or activity involved a full written
report of the circumstances and the grounds for such action. No
4534
-20-
45 C.F.R. § 80.7(d).%* See Brown v. Weinberger, 417 F.
Supp. 1215, 1221 (D.D.C. 1976). On September 7, 1977, the
Central Board and OCR entered into a Memorandum of
Understanding. In that Memorandum, the Central Board
agreed to assign or reassign teachers to comply with fed-
eral standards by 1980. This agreement was subsequently
vacated by Judge Weinstein by order dated March 15, 1978,
in a related proceeding sub judice before this court. Caul-
field v. Board of Education, No. 78-6035 (2d Cir. filed Feb.
28, 1978).
Neither the Central Board nor District 11 contested the
accuracy or the sufficiency of the Government’s data and
statistics but rather presented explanations to justify the
disparities. Appellants contended, ultimately to no avail,
that they had not intentionally discriminated. Rather, they
argued that disparate assignments resulted from the state
education law, from the requirements of collective bar-
gaining agreements, and from demographic changes and
other alleged ‘‘neutral factors,” including the wishes of
black principals and the desires of individual parent-
teacher associations and of the black and white com-
munities.
On September 27, 1977, the Central Board and District
11 filed a complaint in the district court. The district court
reviewed the administrative record and, after a hearing,
such action shall become effective until thirty days have elapsed
after the filing of such report.
(Emphasis added.)
36 If an investigation pursuant to paragraph (c) of this section
indicates a failure to comply with this part, the responsible De-
partment official or his designee will so inform the recipient and
the matter will be resolved by informal means whenever possible.
Tf it has been determined that the matter cannot he resolved by
informal means, action will be taken as provided for in § 80.8.
45 C.F.R. § 80.7(d)(1) (1977).
4535
=2i-
SE a aa ee ee
not only denied the Central Board’s motion for summary
judgment, but granted the defendants’ cross-motion for
summary judgment affirming the denial of ESAA funds.
As previously stated, however, the district court vacated
its prior decision and remanded the matter to HEW for
further consideration in light of constitutional criteria.
Thereafter, HEW determined that the City School Dis-
trict discriminated on a racial basis in the assignment of
teachers and maintained an illegally segregated system
in violation of the Fourteenth Amendment, Title VI of the
Civil Rights Act of 1964, and the requirements of ESAA.
It also determined that after June 23, 1972, the Central
Board took no effective steps to desegregate the system.
While the Central Board was given an opportunity to rebut
the statistical prima facie case of discrimination, its ex-
planations were not persuasive. HEW, therefore, held that
the assignment of minority teachers could have “come about
only through foreseeable acts of discrimination.”
Similarly HEW determined that District 11 was ineligible
for EFSAA funds for having discriminated in its teacher
assignments on the basis of race, color or national origin.
HEW also found District 11’s explanations inadequate..
Upon review of the administrative record and the sub-
missions by the Central Board and District 11 and after
argument, the district court affirmed the findings and con-
clusions of HEW as supported by substantial evidence and
entered its order granting judgment from which these ap-
peals are taken.
IV. Discussion
A. Constitutional Standard versus Impact Standard.
The principal argument raised by appellants is that in
evaluating the distribution of teachers throughout the New
York City schools HEW should have employed the con-
4536
=22-
stitutional test of intentional discrimination, See note 2 &
accompanying text supra. To find a violation of the Four-
teenth Amendment, the constitutional standard requires a
showing not only of disparate impact, but also of illicit
motive. See Hisenberg, Disproportionate Impact and
Illicit Motive: Theories of Constitutional Adjudication, 52
N.Y.U.L. Rev. 36, 39 (1977). -
While appellants argue that HEW’s decision to deny
ESAA funds relies solely on statistical evidence of dis-
parate impact, contrary to Supreme Court cases constru-
ing the Fourteenth Amendment, we need not reach the
question whether the evidence supports a finding of pur-
posive segregative intent. Because we are dealing with an
act of Congress, as amplified by HEW regulations, and
not with a judicial determination whether certain acts have
produced a Fourteenth Amendment violation, it is permis-
sible for Congress to establish a higher standard, more
protective of minority rights, than constitutional minimums
require.** For example, Title VII cases have not required
37 Proof of “intentionally segregative actions on the part of the [school]
Board,” Dayton Bd. of Educ. v. Brinkman, supra, 433 U.S. at 413, can
be presumed when the actions taken by the Board as 8 whole hate
the natural, probable and foreseeable result of increasing or perpetuat-
ing segregation. See Arthur v. Nyquist, supra, 573 F.2d at — ti
approved the intentional segregation standard of Oliver v. Mic igan
State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974), cert. denied, 421
U.S. 963 (1975). See Note, Reading the Mind of the School Board:
Segregative Intent and the De Facto/De Jure Distinction, 86 Yale L.J.
317, 332-43 (1976).
38 Alternatively this case may be analyzed as an exercise of congres-
sional spending power. Congress has not prohibited discrimination in
schools generally under its Fourteenth Amendment Section 5 powers,
but has simply attached strings on grants of federal funds. See Lau
v. Nichols, 414 U.S. 563, 569 (1974):
“Simple justice requires that public funds, to which all taxpayers
of all races contribute, not be spent in any fashion whieh ange
ages, entrenches, subsidizes, or results in racial discrimination.
(Quoting Senator Humphrey.) But “simple justice” aside, an exercise
of the congressional spending power, here in aid of the Fourteenth
4537
«23
proof of discriminatory motive, at least where the em-
ployer is unable to demonstrate that requirements causing
a disparate impact are sufficiently related to the job. See
International Brotherhood of Teamsters vy, United States,
431 U.S. 324, 335-36 n.15 (1977) ; Griggs v. Duke Power Co.,
401 U.S. 424, 432 (1971); McDonnell Douglas Corp. v.
Green, 411 U.S, 792, 802-06 (1973).*
Amendment, is afforded considerable latitude, see Oklahoma vy. United
States Civil Serv. Comm’n, 330 U.S, 127 (1947); Steward Machine Co.
v. Davis, 301 U.S. 548 (1937), provided that Congress has not imposed
unconstitutiona! conditions on the recipients of its appropriations.
The doctrine of “unconstitutional conditions” is not applicable in the
present context. That doctrine provides that “government may not con-
dition the receipt of its benefits upon the nonassertion of constitutional
rights even if receipt of such benefits is in all other respects a ‘mere
privilege.’” L. Tribe, American Constitutional Law § 10-8, at 510
(1978); see Sherbert v. Verner, 374 U.S. 398 (1963) (state may not
deny unemployment benefits to persons unwilling to work on Saturdays
for religious reasons). No such condition appears here, unless it is the
nonassertion of the “right” to have “disparate impact” alone not trigger
fund-grant denial. But in the exercise of its spending power Congress
may be more protective of given minorities than the Equal Protection
Clause itself requires, although the point at which given non-minorities
or their members are themselves uneonstitutionally prejudiced remains
in doubt even after Bakke. Still, in the alleviation of discrimination,
the effect of congressional findings is not insubstantial. E.¢.. Regents
of the University of California v. Bakke, 46 U.S.L.W. 4896, 4905-06
(U.8. June 28, 1978) (Powell, J.); id. at 4918-19 (Brennan, //.);
United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S,
144 (1977).
39 See Regents of the University of California vy. Bakke, supra, 46 U.S.
L.W. at 4906 n.44 (Powell, J.). In considering the opinion of Justices
Brennan, White, Marshall and Blackmun, id. at 4922, Mr. Justice Powell
Suggests that the other Justices are wrong “when they suggest that
‘disparate impact’ alone is sufficient to establish” a Title VII violation.
Td. at 4906 n.44. But Justice Brennan’s opinion appears to us to have
a slightly different nuance from what Justice Powell attributes to it.
Justice Brennan states that the Supreme Court’s Title VII cases have
sustained a statutory violation “even without a requirement of findings
of intentional racial discrimination by those required or authorized to
accord preferential treatment,” id. at 4922, and “have held under Title
VII that where employment requirements have a disproportionate im-
pact upon racial minorities they constitute a statutory violation, even
4538
=~24-
Here, Congress intended to permit grant disqualification
not only for purposeful discrimination but also for dis-
crimination evidenced simply by an unjustified disparity
in staff assignments. This conclusion seems clear from
the statute which expressly requires that all ESAA “guide-
lines and criteria... be applied uniformly .. . without re-
gard to the origin or cause of such segregation.” 20 U.S.C.
§ 1602(a). Moreover, the ESAA proscription against em-
ployment discrimination forbids discriminatory acts and
practices which violate statutory civil rights provisions
such as Title VI of the Civil Rights Act of 1964. It is
significant that Title VI findings of discrimination may be
predicated on disparate impact without proof of unlawful
intent. See Lau v. Nichols, 414 U.S. 563, 568 (1974) (“[d]is-
crimination is barred which has [disparate] effect even
though no purposeful design is present. .. .”) (emphasis
in original); Wade v. Mississippi Cooperative Extension
Service, 528 F.2d 508, 516-17 (5th Cir. 1976) (“statistical
evidence alone may enable . . . plaintiffs to satisfy their
initial burden of showing discrimination”); cf. Griggs v.
Duke Power Co., supra, 401 U.S. at 432 (Title VII).
in the absence of discriminatory intent, unless the employer is able to
demonstrate that the requirements are sufficiently related to the needs
of the job.” Id. at 4918 (footnote omitted). The debate, then, would
seem to turn on whether in all cases where the employment require-
ments are insufficiently related to the job there is necessarily discrim-
inatory intent.
40 It is the policy of the United States that guidelines and criteria
established pursuant to title VI of the Civil Rights Act of 1964
and section 182 of the Elementary and Secondary Education
Amendments of 1966 shall be applied uniformly in all regions
of the United States in dealing with conditions of segregation by
race whether de jure or de facto in the schools of the local edu-
cational agencies of any State without regard to the origin or
cause of such segregation.
20 U.S.C. § 1602(b).
4539
a |
To effectuate the disparate impact test mandated by the
ESAA, HEW regulations condition eligibility for ESAA
funds upon teacher assignment patterns which do not
identify schools “as intended for students of a particular
race or national origin.” 45 C.F.R. § 185.43(b) (2); see ante
at p. 4522. The regulation appears consistent with the stat-
utory purposes of ESAA and must be approved by the
court if it is “reasonably related to the purposes of the
enabling legislation.” Mourning v. Family Publications
Service, Inc., 411 U.S. 356, 369 (1973) (quoting Thorpe v.
Housing Authority, 393 U.S. 268, 280-81 (1969)).
B. Application of Disparate Impact Standard.
HEW’s decision that teacher assignment disparities war-
ranted a denial of ESAA funds was not arbitrary or capri-
cious. 5 U.S.C. §706(2)(A). See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17 (1971).
Even if the appropriate standard of review were the “‘sub-
stantial evidence” test, the Secretary’s denial must be
affirmed since the data which we have reviewed above
clearly support HEW’s determination. It, therefore, fol-
lows a fortiori that the evidence precludes a finding of
arbitrariness or caprice.
In disregarding “the origin or cause of segregation,” 20
U.S.C. § 1602(a), HEW determined that the Central Board
failed to present a sufficient justification for the racial dis-
parities in teacher and staff assignments. The proffered
justifications for the substantial disparities in the pre-
dominantly ten nonminority academic high schools in-
cluded (1) restrictions on the transfer of teachers written
into the collective bargaining agreement, (2) the desir-
ability of teaching assignments in those schools, (3) the
unwillingness of many nonminority teachers to teach in
predominantly minority schools and (4) the unequal dis-
4540
-26-
tribution of licenses in specific areas. None of these ex-
planations is adequate to justify the racial disparities in
staff assignments. The unequal distribution of licenses
resulted from the very examinations which OCR previously
determined had produced a'racially significant disparate
impact. See\ note 14 supra. Leaving aside whether the
remaining justifications are sufficient as a matter of law,
they have not been supported by adduced facts appearing
on the redord. -
In sum, our holding rests on both a congressionally man | eee ee
dated disparate impact test and nonarbitrary administra-
tive findings of discrimination. See Regents of the Univer-
sity of California v. Bakke, 46 U.S.L.W. 4896, 4906 (U.S.
June 28, 1978) (Powell, J.); id. at 4922 & n.42. (Brennan,
J.). Thus, the extent of the injury has been defined and
the consequent remedy, here the denial of funds, specified.
See International Brotherhood of Teamsters v. United
States, supra, 431 U.S. at 347-48, 371-72; United Jewish
Organizations of Williamsburgh, Inc. v. Carey, 430 U.S.
144, 155-57, 167-68 (1977); Franks v. Bowman Transporta-
tion Co., 424 U.S. 747, 762-70 (1976). The district court’s
remand to HEW was, therefore, erroneous, though im-
material here. —
The judgment is affirmed, although on grounds different
from those expressed by the district court.
Docket No. 78-6983 a
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated Term of the United
States Court of Appeals, in and
for the Second Circuit, held at
the United States Courthouse, in
e City of New York, on the sixth
day. of October, one thousand nine
hundred and seventy-eight
Present: Hon.James L. Oakes, C.J,
Hon.William O.Mehrtens,D.J,
Hon.M.Joseph Blumenfeld,D.J,
Circuit Judges
BOARD OF EDUCATION OF THE CITY :
SCHOOL DISTRICT OF THE CITY OF NEW
YORK, et al.,
Plaintiffs-Appellants,
Vv. :
SEPH CALIFANO,JR.,SECRETARY,UNITED
cents DEPARTMENT OF HEALTH,EDUCATION
AND WELFARE, et al., :
Defendants-Appellees,
A petition for a rehearing having been
filed herein by counsel for the vlain-
tif*s-appellants, Thad
Upon consideration thereof, $t.' 26
Ordered that said petition be jand
hereby is DENIED. .
a itd Nene
A. Danicl Fusaro
Clerk
Docket No. 78-6083
UNITED STATES COURT OF APPEALS
SFCOND CIRCUIT
At a stated term of the United
States Court of Appeals, in and for
the Second Circuit, held in the
United States Courthouse, in the
City of New York, on the sixth day
of October, one thousand nine hundred
and seventy eight.
BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK, et al,
Plaintiffs-Appellants,
Vv.
JOSEPH me phe Hh JR.,SECRETARY ,UNITED
STATES DEPARTMENT OF HEALTH , EDUCATTON
AND WELFAPE, et al.,
Defendants-Appeliees.
A petition for rehearing containing a
suggestion that the action be reheard
en banc having been filed herein by
counsel for the plaintiffs-appellants,
and no active judge or judge who was a
member of the panel havina recuested
that a vote be taken on said suggestion.
Upon consideration thereof, it is
Ordered that said petition be ana
hereby is DENIED.
/s/_
IRVING R.KAUFMAN
Chief -Judge
APPENDIX III ‘ foo Was ee
uuTTED STATES DISTRICT COURT
EASTERN DISTRICT OF WEW YORK
x ‘
. BOARD OF EDUCATION OF THE CITY SCHOOL : a
- NISTRICT OF THE CITY OF NEW YORK, ;
“i et Ghee ‘ ¥ :
Plaintiffs, :
: -against- 2 MEMORANDUM AND ORDER ; | -
- JOSEPH CALIFANO, Secretary, United : 77-C-1928
' States Department of Health, Education
and Welfare, et al., 3
Defendants. :
APPEARANCE S:
Honorable W. Bernard Richland
Corporation Counsel of the City of New York
Municipal Building
New York, New York 10007
Rosemary Carroll
Assistant Corporation Counsel aa :
Of Counsel '
tad
. er - Crane |, 9s Camercontees © cePeen-~ _— 7 -
nonorabiv David G. Tireyes
United States Attorney
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
kichard P. Caro, Esq.
Rodger C. Field, Esq.
Assistant U.S. Attorneys
Of Counsel
1
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WKINSTEIN, D.J.
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ES CT AT OT SSS TOO SS Se
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Sith : “
TABLE OF CONTENTS = se
a
Procedure in this Court 7 x
Administrative Proceedings E E
3 pe
A. Chronology !
B. Pailure to Consider Evidence of Plaintiffs- be
°
Evidence Before H.E.W. :
A. The Central Board | 16
l. Citywide Statistics Showing Racial Disparity te
2. Plaintiffs' Evidence Explaining Disparities On =
Grounds Negativing Discrimination
a. The High Schools ”
b. Justification of Disparities as Beyond &
Boards Control
1) State Law on Teacher Assionment a
¢
2) Demographic Changes e
2) Contractual Provisions and Court Orders Me
i 33
B. Community School District ll i
Law f ;
' £2
A. Burden of Proof g
. 44 }-
B. Intent to Discriminate | :
49
Cc. ESAA Standards l _
3 |:
D. Scope of Review by District Court :
54
Conclusion
|
f é
i
'
: -3l1-
‘
-
i el Ee ele elie ie ee 2 te oe 1) te et de ES
: 20 U.S.C. § 1605 (da) (1) (B) (Supp.
; i gl 4
“? ter
. Plaintiffs, the
Board of Education of the City of
f New York, its Chancellor and nineteen local City school
Boards, allege that the denial by the United States
Department of Health,
tions for $17.5 million under the
Act (ESAA). 20 U.S.c. § 1601
i
Emergency School Aid
et seq., violates that Act ana
s arbitrary, capricious and illeaal in violation of The
Administrative Procedure Act. 5 U.S.C. § 702 et seq. Thev
seek injunctive relief. -
H.E.W. defends on the around that there was ample
basis to find a violation of ESAA since teachers in New York
City are assianed upon the basis of race,
color and national
oriain.
for funds for any school @istrict which after June 23, 1972,
a utilized any prohibited practice, including “discrimination
. based upon race, color,
or national origin in the hiring,
; promotion,
“
or assignment of employees of the agency."
II 1972) (emphasis supplied).
A compromise at the administrative level
resulted in ESAA funds being allocated to all the
t
local districts but District ll. fhe local districts
agreed to reassign their teachers to eliminate racial
disparity in teacher census in the schools within
each district. Defendants agreed that some 14 million
ESAA specifically requires a finding of ineliqibility
as fats shnn | Bit ease ak ‘be tape
7 .
Education and Welfare of their applica-:
|
|
-32-- Cen eate pat
r te enn een on 0g santa
. . 3
children attending New York City's public schools. Accord- ;
ingly, a temporary restraining order issued requiring the
defendants to preserve and set aside $3.8 million, the
appropriation originally earmarked for the Central Board
and Local Board 11. On consent, the restraining order —
has been extended until today.
The court ordered the defendants to show cause why
an order should not issue (a) rescinding defendants’ denial
of plaintiffs’ application for funding under the Emergency
School Aid Act, 20 U.S.C. §§ 1601-1619, and declaring the
denial to be violative of that act and of applicable regulations,
45 C.P.R. § 185.01 et seq.; and (b) arbitrary and capricious
and violative of 5 U.S.C. § 702 et seg.; (c) restraining
defendants, as authorized by 5 U.S.C. § 705, from disbursing
funds in the amount of $3,858,023.00 million now earmarked
tor the ESAA application of piaintitts' Board of Education
of the City of New York and District 1l and ordering defend-
ants to retain funds in escrow for the use and credit of the
Board of Education and District 11, pending the determination
of this action; (a) granting plaintiffs’ judgmert awarding
such funds to plaintiffs pursuant to its sevidentions and
(e) awarding plaintiffs’ costs. : = Lg
An evidentiary hearing was held on October 31,
1977. Additional time to supplement the record was
-34-. 7 , :
granted and there were supplementary oral arguments. The
hearing, documents submitted by the parties and judicia}
notice establish the following facts and law.
: It.
: A. Chronology
° In January of this year, plaintiffs
ADMINISTRATIVE PROCEEDINGS
t submitted applications tor ESAA tunding to the Secretary of My
H.E.W., through the Regional Office of the Office of
{
' Education, H.5.W.
.
* pilot and bilingual programs in the public schools of the
i
’ City of New York for the 1977-78 school year in Districts l,
The applications sought money for basic,
“9, 9, 1i, 12, 13, 16, 17, 18, 20, 21, 22, 25, 26, 28, 30
: and 32 and in the high schools and special educational
programs administered by the Central Board. The funds were
: to provide services for an estimated 40,000 students. On
’ genes 14, 1977, the Board, as instructed by the H.E.W. staff,
: submitted a revised application to defendant Califano.
H.E.W. officials then informed plaintiffs that
the educational programs described in the April, 1977 ESAA
applications met all H.E.W. programzatic and fiscal re-
quirements and ti.at the applications were approved as to
content and amount, subject only to a determination that no
cther legal impediments to funding existed. At this time
-35-
—— ee fF omee
oe ee ee eee © ee me ee ee em me +
—- —-
°
£ the Plain tiffs
,
er,
id pb
1977-7 © denieg 5
: s °
i Choo] term
3 © &.w
g . based
1 inay
. ' OW’ ser a, 1976 -
” oc
{ Civid yy Port w
_ — EO ES EE LR RN ES ene ee ge en IN
Defendant Goldberg's July 1, 1977 letter cited
'
o.aee= a ze
!
|
‘
'
‘
several grounds for the denial of the plaintiffs’ ESAA
cpp Subsequently, H.E.W. advised plaintiffs
f that ESAA funds would be denied to plaintiffs solely on the
sya.
ground of discrimination in assignment of teachers in the
} public schools. This is confirmed in Mr. Goldberg's letter
of September 19, 1977. The litigation in this court has
, focused only on this issue.
H.E.W.'s findings were based on OCR statistics
ec tort rs ee
7 that allegedly reflected a low system-wide minority
f hiring rate in New York City public schools. The statistics
reflected a strong correlation between minority teachers
and minority students in sone schools.
oes:
Defendant Goldberg's July 1, 1977 letter of
s=ct
denial also advised plaintiffs that, pursuant to section
185.46 of title 45 of the Code of Federal Regulations,
- they had an opportunity to show cause before him why the
determinations of ineligibility should be revoked.
-eee.
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ees Oe ere
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woe
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ee ee a ee -
.
-——— ee ee oe
wat,
oe ere
LN een ee re.
Plaintiffs requested and were granted such an Opportunity.
On July 20, 1977, a show cause hearing was held for Local »
“Board 11. The Central Board's hearing was held on suty 22,
° 1977. On July 26, 1977, Local Board 11 submitted supple-
f mentary materials as did the Central Board on August 10, 1977.
. In a letter datea September 15, 1977, defendant
a
: Goldberg informed Local Board 1ll's Superintendent Nicholas
t ciccnetti that the information _Presentea py tne sboara at the
{guay show cause hearings and supplementary materials did
‘fnot constitute a sufficient basis for H.E.W. to revoke its
‘determination of ineligibility. Chancellor Irving Anker
| vas Similarly informed by a letter dated rae 16, 1977.
} Plaintiffs submitted evidence to H.E.W
. i
, Of requests for waivers of ineligibility pursuant to .
| 20 U.S.C. § 1605(1) (5) and 45 C.F.R. § 185.43(d). However, |
Chancellor Anxer, in his October 26, 1977 affidavit,
i
'
(p. 15), stated that the Board had already been “advised |
!
i
informally by defendants Goldberg and Tatel that waivers
| of ineligibility will not be granted to plaintiffs unless
the remedy for eligibility is effectuateda immediately,
; that is, a quota of teacher assignments is adopted and
implemented by plaintiffs." Plaintiffs also maintain that
although they have the right to seek a
eligibility,"
"Waiver of Ia-
such a waiver does not constitute an appeal
of the final determination of ineligibility. Rather,
ee
; .-38- - BS
tr rt re. et. 21 rer mere arm sees et mt
. in support '
Fre
SPU +o
;
t
. 9
el
ee pee ee Ce
“me er re ee ee ee ee ere Pie ee os te ee
‘Se oe. oe ee eee es ee re TS Pe ee
Carroll, Assistant in the Office of the Corporation Counsel
of the City of New York, p. 4. The plaintiffs have
exhausted all available administrative remedies.
‘
eee Seem Keen AE Sey ee eg ed LOE Semaine, cin evs wnels
A !
5 t ' : B. Failure to Consider Evidence of Plaintiffs ;
‘ There are no transcripts of the show cause hearings '
; 3 F
J f held on January 20, 1977 and July 22, 1977 by H.E.W. The :
Re SEI EAS Sear AE ewok Ned mn Om : affidavits and the legal memorandum submitted by the parties
t j
it is a procedure for securing a waiver of that final | , Present conflicting accounts of what transpired at these
‘ ,-
deter tion by showing compliance with a remedy ordered | _— hearings. .Defendants contend that at both hearings
‘ . !
by H-E.W. See October 28, 1977 affidavit of Rosemary |
on September 7, 1977, a number of parties,
including the Central Board, independently entered into a
Memorandum of Understanding with H.E.W. affecting teacher
assignment. The Memorandum reportedly calls for the
implementation of a three year pian for a more equal
City-wide ethnic teacher distribution in the public
schools. H.E.W. has indicated that it regards the
Memorandum as compliance with Titl+ VI of the Civil Rights
Act. Compliance is apparently required if the City is to
receive substantial funds other than those allocated under
ESAA. The validity of this understanding is not
ised in the instant action ana the court makes no a of teacher assignments in 39 high schools cited in a list
ra n the hg - : .
e attached to defendant Goldberg's July 1, 1977 letter as
finding with respect to it. a
o having student teacher ethnicity levels which “possibly” :
4 | ; :
4 ;
Ha ee Lee - . i
ee ee eee
lt oe
i
et
ie ee. eee 2 i oe
'ESAA applications.
defendant Goldberg made an independent finding of fact,
considering but rejecting plaintiffs’ evidence rebutting
the prima facie case of discrimination made out by the
statistics. Plaintiffs allege that they offered such
evidence but that defendant Goldberg expressly refused to
consider it, relying on statistics alone.
Plaintiffs explain in their supporting legal
memorandum that because there was no transcript of the show
cause proceedings, they have submitted the affidavits of
Chancellor Anker and Superintendent Cicchetti. These
affidavits, they maintain, represent the gist of the vicot,
presentation made in support of the plaintiffs’ 1977-78
Plaintiffs' Memorandum of October
28, 1977, at p. 3. Chancellor Anker's affidavit of
October 24, 1977, reviews in considerable Getail the status
- es
a ea ee be i alin ein De ee tee, than, da ann “A ein ao, eae 4, a, ee
-40-
ae ee ee ee eee ee ee
eee
TTY,
1
eZ)
Tv
“ot,
Lew
a ess
,
— or
- '
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'
cel —
iL
10 i Ne
en ee ake
'
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'
.
'
esece 2 Cee oocese Ge @-0 eammm@or
i
i
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that at the July 22, 1977 show cause hearing “(T)he Central ;
»
_s- - - eae oape-eo @-1:G (Ca Coermoes a> * _
-« oom oo .*
The defendants assert in their supporting legal memorandum
~~ 4.
indicate that these high schools are
of a particular race, coles or national origin. See
-vacet?
affidavit at par. 21.
|
intenced for students |
Board offered no explanation as to why the indentifiability
\
"A school by school analysis of
in the high schools existed.” pefendant's memorandum
this list,
!
" Chancellor Anker states, "such as was aa
:
t
i of October 28, 1977 at P- 13-
attempted
to be made to defendant Goldberg at the show
The parties present equally conflicting accounts
cause proceeding proves \
that such inference was entirely
unfounded.” Id.
i
The rest of the affidavit reviews the |
Defendant Goldberg's affidavit of October 18, 1977
‘on alf of District ll, I submitted data on
ag om factors which bear on the charge -.
nA discrimination i) student population ethnicity
patterns and integration strategics and ii)
the teacher seniority ane transfer ve on
In particular, I submitted specific da i
all factors cumulatively affecting —
student and teacher distribution at the
question of exactly what he did or H
did not consider in ruling on the eligibility of the
Central Board. In paragraph 19, he states: Ads
:
;
' \ in paragraph 18 of his affidavit that:
i
5
On the basis of the informat
. .
ee ee ee ants ara eS
“ bad s
ton and recommendations | schools cited by H.E.W. as possible {sites)
submitted to me by the Director,
‘ ;
5 ; of discrimination.
office for Civil i
Rights, I determined that the Central Board did H
not meet the eligibility requirements for
under the Emergency Schoo
!
’
!
\
ee
\
; \
of the Community school pistrict ll show cause hearing t
i
i
:
H
:
|
| i «a not
ist In paragraph 21, Mr- Cicchetti states that the agency é
assistance
! ; :
|
\,
‘ 1 Aid Act for the reasons : 4 f : 11's evidence: '
I set “_o~ in tage of July Rada to Chancellor | i consider pistrict es See
~ Anker (Ey ibit attached hereto). | , eat GuULGvELY aduuantiy re-us : :
i : t Delennsider any evidence offered by Oil \
\ 11 to demonstrate eligibility for fun an oun
, In paragraph 22, he states: 7 fact defendant Goldberg stated at e
\ patra proceeding that he would only consider
: ' i . pa
I determined that the information presented at the | ‘ . evidence controvert 09 the seity collected
F show cause meeting and materials provided by the ; ‘ : statistics and Porcivil Rights
4 Central Board under a cover letter to me from py the office .
7 Chancellor Anker dated August 10, 1977 (Exhibit 6, | :
attached hereto), did not cons
titute a sufficient |
'
ghe defendants Gispute this. Defendant Goldberg §
basis to revoke the finding of {neligibility.
ffidavit of october 18, 1977 goes not address the question
a
—_——~
f exactly what he did oF did not consider in ruling on
° |
=
‘
‘
m+ eeere
|
‘
;
|
1
te -
LL ater
: a gmetad PE
. gen fee IOI LOE dase Spot _ 5 permccneapnnnate a noes 0 OSD
: pre SN PORN eT ena ap ti 0 fi antighy iglts an eam
ee nt heme ee ers amie or See ee a —
-41- #r
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ee ee “Frat
SITES Male or
—
ss
oo Geer S93 CEPR <F one
Sta 1 exPbe’ S128" UP
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the eligibility of Community School District 11.
paragraph 20, he states:
12
a*
|
|
|
.- — (oe ome = Sete cme emer em FT
In
On the basis of the information and recom-
mendations submitted to me by the Director,
Office for Civil Rights, I determined that
Community School District #11 did not meet -
the eligibility requirements for assistance
under the Emergency School Aid Act for the
Y@asons set forth in my letter of July l,
- 1977 to Community Superintendent Cicchetti
(Exhibit 5, attached hereto) .
--
<somecee oomere —_— oo
In paragraph 22, he states:
I rmined that the
an aoe an meeting and materials provided by
the Central Board under a cover letter to me Seen
Cuaneellor Anker dated August 19, 1977 (Exhibit °»
attached hereto), did not constitute a sufficien
banis to revoke the finding of ineligibility. f
ec es weer ’e
mee ee Here oo &
information presented at }
In: the’ - brief, defendants contend that
The plaintiffs did not challenge the vies
of the information set forth in the wane =
1977 letters of ineligibility (Exhibits 4,
at their show cause meetings Or through
cOViespondence; they aia not provide Dr. m
Goldberg with any factual information —
cexning faculty assignment to permit him
revoke his determination of ineligibility-
Defendants' Memorandum of October 28, 1977, at P- 40.
See id. at “4-46.
Faced with these sharply conflicting representa~-
tions, the Court must, at this stage of the litigation,
place substastial reliance on the contemporaneous documents.
|
etal mas abs Bac ae” ay hakee ;
ee
ee ee
_— rr}
-43-
™ edt
soe a Ber a at ie) rl
Se
ee eeee eager Seen FETE?
"PES. 8 os eo? &
OPT ee eo
oe
Se re rene «et ee ee 8 a ee +
Chief among these are the July 1, 1977, September 15, 1977,
and September 16, 1977 letters written by defendant
Goldberg. As noted above, these letters bear out the
plaintiffs’ contention that defendant Goldberg relied only
on raw statistics in making his de*erminations of ineligibil
for the Central Board and District 1l.
In effect, the government confirmed plaintiffs’
charge with respect to the nature of the show cause betnian.
It took the position in this court that a full beenton
requirement does not apply to the ESAA,
Now a Fourteenth Amendment investigation
does not take place. We would not want to
represent that it does.
Transcript, October 31, 1977, at p. 38. At the eubiok of
the hearing the court questioned the government about the
evidence considered by Dr. Goldberg in making his eligibility
ears D2 ae oe B@ewe © . . > . - .
S4UsangsS 40k sorai Buard il and the Central Board. A
recess was granted so that the government could contact
Mr. Goldberg. Following the recess the government advised
the court: : ae :
(W]e were advised by the Office of Education,
that Dr. Goldberg considered the statements
i
and evidence presented to him by the Board,
that he determined it was irrelevant and
therefore he didn't have to decide whether
ity
_—— ee ee ee ee eee
{
it was true or not. 4
'
Transcript, October 31, 1977, at.p. 27.
> ° +O es
~44-
i i ae ee eo ee ee eel aed
- . .eeres o-o —
sT4erss armas
op tree cw
6. ey ee ee
: this agreement was
' 4977, with H.E.W..
- assignments have been made illegally in the past.
’ consent
am as Geee © cece om
At the informal hearing, statements and reasons
were presented. Dr. Goldberg considered those
but determined they were irrelevant, even 1 4
assuming they may be true.
Transcript, October 31, i977, at p- 33- ;
Plaintiffs were, it thus appears, granted a hearing
The
position of defendants is that this evidence is irrelevant-—._
where the evidence they submitted was not considered.
that is to say, even if it were true it could not change
In short,
the result. the defendants relied solely on the
statistical disparities referred to in the November 9,
1976 letter of OCR. ; ,
III. EVIDENCE BEFORE H.E.W.
Denial of the funds involved in this litiaation
_ is based on findinas by H.E.W. that teachers in New York
City are assiqned by the Board of Education in a raciallv
discriminatory manner. In support of this finding defendants :
arqued in this court that the City's aqreement of September,
--
desianed to reduce racial disparities in
teacher school assianments. is a concession that teacher
-_—_————e
.
But -
reported to be in the nature of a
judgment without any confession by the City of
illegality. It was said to have been entered into to avoid
owe ow aor ore
the possibility of withholding hundreds of millions of dollars.
=45-
6 GEE STO OOO =
~ me ee ees ow
in federal funds. Compare Letter of Director of Office of
Civil Rights of H.E.W. of November 9, 1976 with his letter
of September 9, 1977 and enclosure. To use this agreement
SaoFe ST STTE oe 2
funds would be quite unfair. This purported just:.fication
for finding plaintiffs guilty of racial discrimination in
3S So PWS ITSM
teacher assignment is without merit.
Equally without merit is the City's contention that
the approv
PP al by H.E.W. of grants to the individual community
r~ , ,
| chool districts prevents its denial of a grant to the Central
oF
* Board of Educati i
tion. Within each of the school districts
— has apparently been an a
.assignment of teacher
! s so that no school will have a dis-
. : r
[P oOportionate number of minority teachers. This may insure
ee ee ee
—- —--e
—- es
greement to equalize the
whole there will be no such practice
er ee eee ee
SO ED CEs GSS EE SU SD 0 oS SEs 1S Oh omy epee --
-46-
as the evidentiary basis for withholding separate educacicnal
~is
o :
discriminati i ,
tion. But it does not insure that in the City as a
; 16 “t ae ! ; ie ——
° ° oo¢e @ e e eS wee im poe Ghat 1% “. c ; ese =
i , etl “% os N a «=
: A.- The Central Roard : bs oD inn : - 8 SS SN = 3 =
: . ‘ . = ad NS oO te
: l. Citywide Statistics Showing Racial Disparity “e: ° s 5 nee Se ly oO
a ee ae z —ae
‘ The statistical data does lend support ' tee ~,! SAY Sr ee Ow
: o Po oe BEERS Os
“to H.E.W.'s finding that subsequent to 1972 there was a 4 Sh ee, ge : 22% OK 2 rat) a
pecttors of assigning teachers by the Central Board in a way ne : “4 = rai
. ; i
i a .
‘that would tend to correlate the race of the teacher with - ee . J . °
i ; wn ;
ithe predominant race of the students in the school. There . ba - ‘ \N
2 : ; ix —
‘is a direct correlation between the numbers of minority = fh S SG ss .
; = 2 = E S 4
i teachers and the percentage of minority students in the City's = 5 ws ioe. ; am 2
4 : 7 u . 2 4 — O
‘schools when the schools are broken down into groups of low — f = 3 ' : a wo
. , . te. I .
‘medium and high minority school population. + A xd : ord 5 h~ :
‘ Yon? —
Set out below is a graph illustrating this correla- : a va oO P : . *
ition at the high school level for the school year 1975-1976. * bon wo . :
3 : Cc Yo =|
’ . : : oO oO .
Information on the high schools is particularly damaging to = x 2 R ; \ te
‘the Central Board's case since it, and not the Local Boards, | x: © S EX aa a
; ’ : 4+ wo
controls high schools. = = _ 2 a er =
uJ o -~
i —. = ad = n
- 4 .
uJ o = : , cE
: — i. pf e cr ow xe —_ WN
= . a - aor
©. . — 4 ke .
a —_ ow - k
; wo wo =z F 7
ba —J om “
| - ion <aecn ql
os" ‘ a @ ‘a . oS
: 32 : = &
. Ze Go ° 2 > ee “i rl
¥ : oe ee Ss. po a |
3 ome Sy ; SS won ie
= jc r o al SD 2 ae Ps
s . -— ce %
. Bi 3 te Hon - ty
: : aN ee *
i . * ss ° a & &
on
; i
: sf T T af ‘ee 7
; oO Oo oO . & Oo oO
oe = w : ae iat) ;
Nn *JSBLS ALIYONIW LN3IU3d
'
-47- ~ig~
ee
.
78 T ST. oes S85. SOOT.
,
a LO
| mtetitnittn
{ *
a
anew wt we ~- a oo. <0 a ee supe < sepaimmenes
'
i
ee hen | o53°C 0°01 £8622 0°0ol 1Se*sS2z 0°cO. 619 W101
“Dee Tise $9 77 Ol * To Ter tl tt Tz + 08
ze 232 9°56 * $61'2 3. * -ae 2°8 is 6°62 - SZ
r’s 12 ou z2s*2 >°OL tol*2 o°oL 29 6°92 - 05
a 9 til “O'SL- beet oc zes‘t 9°9L cot 6°6> = $2"
ol ot 0°21 ise'2 $*ol £eL"2 Cl ce 6°92 - Of
2°00 sO 55°9 ous"t a) ses*t 26°L &y 66-0
CEPTS? EsSane lisstsé 86° Esbaee Tisoee4 Ele “Medese Est OIDs Bae Silene :
; ALGOMA ANSEF .
Siiwat Ligok Sésnovei ALTEINIK-MOM Stsroval Wri0L SWS ;
+
-f \ 4
s
SL6I-TZ61 “SIOOHIS AL V1IN2IV313 TV
NOMSYOTINI TOOHIS 20 334530 ONY siHSUDENTIIY
2€NOUD ALIVOKNT NON ONY ALIEONIN AL NOUV W6Od USHSV21 ZO NOILNGILLSIO
- . @+ee +s - ee ee ee ee ee ae Te e «o t
i
- y eieeR rer P|
xo |
cinihantilinenn dele 5 dia BE
4
\ °
i 3 :
i )
7) i
| @ iS)
' x °
: » «A
‘ eI
i wv a
? 9g
“ g
E 3
j 0
: » &
Te te
a
&
3
a °
i . 4
aw
H vv
, an
‘ “A =]
' + °o
® Ls} ;
i a wv 2
: a .o
: o :
a ;
'
? wie
°o (o
>
: o @
5 re ad
; Qa
. a
ce Se
s ; ia ee.
\ * . ev F -} ~
. 5 VY toa)
§ 7) a
!
rey 7
~
6 a
a da -
c ks :
Fs u
| ;
ne a “ :
. oO nm” ee ll ot eee te wee a
————
~-_-
—— ee
-49-
-50-
wil
i 7 ' ——
-
(ors. wo te
The disparity in ratios in the last and the current Ny ——
: : — ee
—- + . _- _—
_— me eee eee - * + °
‘ school years has _apparently not changed appreciably despite
a.
perturbations of major teacher layoffs as a oinarn of the high schools. The students in these schools have all
<_< <7"
= S*
. City's fiscal crisis.
2. Plaintiffs Evidence Explaining Disparities On
rounds Negativing Discrimination
_a./ The High Schools
dropped out of other schoois. Because of various impediments
‘ to learning such as drug addiction, pregnancy, criminal
records, or more generalized social maladjustment these
——
students require curriculum programs and counselling
|
|
Substantial evicence was presented by tre
reas owe et
i
Central Board that there was neither intentional discrimination
° '
different in focus and concentration from that offered in
other high schools. The schools themselves were originally
ar
tee oo Se
orens orn
T
nor a pattern Or practice after 1972 of assigning teachers by. private community schools. ‘They have traditionally offered
race. Particularly striking is the Central Board's school- :
personalized guidance services, flexible curriculum and {
by-school analysis of the history of some 40 high schools !
orem ws
staggered teacher hours gearea to the special needs of their
where the minority teacher and minority student populations students. For example, many of these schools operate into
correlate. the evening hours. Teachers, thus, must be willing to work
For example, the list includes Harlem,
ee peed Pe ee ee —
long and inconvenient hours. They must be motivated to
; Park East, Harlem Prep, Lower East Side Prep, Satelite develop contacts in the community, participate in family
ae a
» Academy, Pacific, Redirection and Auxiliary Secvices=- counselling and in general perform a myriad of duties which
i all independent alternative high schools. They ere reflect a pervasive commitment to teaching children with
mini-schools with student populations of 100; most high)
Fate *
-a:
special problems that affect’ their ability to learn.
schools enroll between 1,200-3,000 students. Arguably, they Recognizing the degree of teacher commitment necessary to
\ : °
: — — properly be part of sn analysis of statfing : meet the challenge at these special schools, the Board
cco ames came caomewenare © <o MawamPcces 6eS 0 © GOSe1 ar"
' . >
t ee York city high sclwene because the unique ° \ yelies solely upon voluntary applications for staffing these x
‘ historical development of these schools, the exceptional ‘Palkc fay
i ; alternative schools. There is, thus, arguably, no _
methods of teacher selection, and their special educational . Bias Y __
comparability between these schools or their teachi
' programs and curriculum all preclude comparison with other : i ms 4s
staffs and other high schools.
ee -
ee bs o o~en ees oes = @ © Cem e~ <9 79s SE ee ee oa
-
‘
‘
’
ee ae S Sees
|
{
{
i
4
ee —— —eern eh eed -*
-5l- 52
the Central Board argues, a random distribution of 8.3%
'
of minority teachers in every high school.
'
¢
:
Shee eres iors:
:
°
o--e
Tes ems ge mes tm
é
licensed staff are recruited to fill such vacancies. For the , i school puts its staffing level near the 8.3% high ethiah tie #1
F
22 =
ee UN ee z
— ” a
: 7 Bushwick and Eastern District High Schocls both 5
; The high school staffing pattern reficcts the i ihave high concentrations of Hispanic children who are non- iS
: academic subject matter or vocational courses offered at the ] English dominant. These schools provide the Aspira consent g
: i { : rs
specific high school. Generally the license areas with J ‘decree program, Title VII bilingual programs and English as ‘=
§ the fewest number of qualified and licensed teach ‘ é
a ers are a Second Language Program. Of the 130 teachers at
‘ mathematics, a aatatt physics, English and most recently t Bastern District, 16 are Hispanic. Even using H.E.W.'s
= § sh and Hebrew. Eli C
i pani gible lists for these areas are ‘ mathematical method of determining discrimination, subtracting
* completely exhaus certi “
= ¥ usted and recertifications and even substitute | = these 16 teachers from the 18.0% minority teachers at that '
i
i
xaminat a 1 ay ° : “
bilingual areas, license e anetions were developed os { minority teacher population. Similarly, of Bushwick High
‘ h ther hand, some lic e areas traditionall
ee . ets si School's 146 teachers, 6 are Hispanic. Subtracting these
=
“have had greater numbers of licensed minority teachers than ; i
6 " . : 3
' other. For example, the minority passing rate for an English
'
teachers from the minority teacher percentage puts that
T2*?.
school's minority teacher percentage within 5% of the 8.3% |
high school license wa latively high, °
3 ot a ~~ 49.238 (2976) and foe figure. The Central Board is required to provide the Aspira ~
& Social Studies high school license, tov, 7.690 (1974). program to all eligible children and has consequently had to
RSM TS
There ic a greater incidence cf minority group menbers
”
~
hire hilingnal staff on an expedited basis. The educational
“ot he
PRREERRD SOSH EEES TOP enree Ae Rene CoMmNeNe: sonnerarrnt) justification for a resulting concentration of Hispanic
eee eee em
ASRS ETS a Te”
be
A :
t and naxeing, then, for example, in math, physics or chemistey- oie s teachers in schools with high percentages of Hispanic Br
* Staffs also reflect the teacher attrition rate and transfers. Bs . , ‘ at
‘- _ + children seems clear. S
; Schools with average teacher longevity of 10-15 years will ‘= te August Martin High School succeeded Woodrow ¥
‘s ; ; ‘ ae
i more often be predominantly White than minority in teaching e ~ Wilson High School in Southeastern Queens and was, when 8
h staff since the percentage of minority teachers with oe t come
college degrees at that earlier period was even lower
‘ than the current 6% of all college graduates. The
'
‘
'
‘
{
:
'
|
i
'
!
1
'
t
H
s '
;
i . :
‘
!
1
:
!
- existence of these factors affecting distribution precludes,
Lr re ee ere ce re SE oe
-54-
pau
opened in 1971, the only magnet thematic school in the City. |
The theory of a magnet school is that by developing a
curriculum around an innovative educational theme students
of all backgrounds will be attracted to attend the school.
August Martin's location near John F. Kennedy International
Airport made it an ideal site for a magnet school
emphasizing aerospace studies. Teachers generally were
selected from eligible lists to fill staff positions at
ee eee ee ee
1 August. Martin but in instances where there were no licenses
ee ee er
—_—
for specific arecspace subjects, recruitment of persons with
the most related backgrounds was undertaken.
’ there is no license in flying instruction, but a common
} beancaes teacher with a flight aaa service was hired
and 150 students fly planes” as part of the program.
Similar selections were made for avionics, radio eonmenication,
1
wd ether courses for which thers are no specific Licenses.
a
The ¢chool, which is located in a largely Black middle class
area, 1as a high attendance rate of 918 and 90% of its
studeits go on to college. It has a work-study cycle at
Kennedy Airport providing jobs in airplane maintenance,
It has six
“7 =
om ner ets ee SS EO eas Oe ee ee
repaic and airline clerical and reception work.
; Title I teachers all of whom are monitored by Title I
compliance teams. Many of the minority teachers have been
part of the school staff since the time it was Wilson lligh
_———- oe oo
=88—
: 24
new. . Gere tC ap me:
For example, :
oo — om oe os ee ee
era “ef!
“t.
a ee ee eee
. Of vacancies in specific teacher license areas.
og + 400s s@mwas. « —<<.. se
School. In assigning teachers to the innovative programs
at this school the Board has not assigned teachers on the
basis of race, but rather on the basis of possession
of specific licenses in the subject areas to be taught, or
by assignment of persons with relevant experience and most
comparable licenses.
EAE Oe eee Skt Tepe
It is apparent from this detailed analysis that, had
the Central School Board attempted to achieve a City-wide
minority teacher average in each of its high schools, the
result might have been improvements in statistics but
deterioration in educational programs. Although each
school's situation is explicable, H.E.W., given its expertise,
might, however, have concluded that the overall City-wide
pattern itself had not been sufficiently justified.
‘be Justification of Disparities as Beyond
Central Board's Control
The Board of Education contends that it is
caught in a whirlpool of circumstances from which it cannot
escape and that it has not intentionally discriminated.
The factors it points to include State law; demographic
~gasogt
C ery |
ra
ae]
~ty
2%
changes in the student population of the City schools;
Oder
ss
er.
we
”
collective bargaining agreements with neutral date of hire
> ee
seniority practices; low minority incidence in the relevant
1
available teacher work force; and incidence and distribution
ee oe OO mee rem (mms ee te Oe oem as
-56-
=.
.
1. State Law on Teacher Appointment
All teacher appointments and assignments in New
York City public schools until 1970 were made pursuant to
the provisions of Education Law sections 2569 and 2573.
Under that statutory scheme, the Boacd of Examiners conducted
competitive examinations for pedagogical licenses and
promulgated lists of candidates ranked in order of performance.
on the examinations; eligible lists were then certified to the,
plaintiffs for appointment and assignment of teachers in:
rank order.
The Education Law also permitted assignment of
persons with substitute license where there were an insufficient
SO EE SE I
number of regularly licensed teachers to fill vacancies.
Eligible lists have never described or identified the national.
origin or race of candidates for pedagogical assignment.
While this statutory pattern continues to be
applicable in the City's high schools, a new method for
teacher appointment and assignment for the City's elementary,
es) ie ed ee
intermediate and junior high schools was created by the 1969
*.
amendments to the Education Law. This change was designed,
-*
in part, to achieve affirmative action goals in minority
: teacher hiring. Effective September, 1969, the New York City
’ school system was restructured into 32 decentralized
———_——— ee ee ee ee ee ee
‘
-§7=
°F.
et ae
' with the stated purposes of (1) equalizing reading
FSR. SOL SE ISS ee te eee eee ee 3s...
.
TS kf
=”
a
————-
*
- + sere O° :emm cms. «0 + oem
Community School Districts. Subject to some powers retained
by the Central Board and the Chancellor, the Districts were
authorized to appoint and assign teachers. Educ. L.
§ 2590-e(2).
, As part of the decentralization law, three alternative
methods of teacher appointment and assignment were provided
for schools within community school districts where the
reading level is below the 45th percentile of reading scores
for the local school district. Education Law § 2590-j(5).
Appointments in such schools may be made from (1) eligible
lists regardless of candidate ranking, (2) the National
Teachers Examination, a qualifying (i.e., non-ranked)
rather than a competitive examinavcion, administered nationally
by the Education Testing Service, or (3) lists resulting
from qualifying examinations prepared and administered by
the Board of Examiners. The last of these lists had the
meen ee wee + ew ee ve
lowest ratios of minority teachers. Appointments to the
top 55 percentile reading score districts were to be made
from ranked lists containing relatively small numbers of
minority teachers.
These amendments to the Education Law were enacted
achievement levels; (2) increasing the number of minority
teachers employed in the New York public school system; (3)
eliminating overutilization of substitute licensed teachers;
‘
me eee we
-58-
Stata! FoR Tee.
Re ea Te eee
Sea ee SS Sie FS SS es a OT Pt le
’ experimentally, in schools where low reading levels warrant.
‘ new educational approaches.
fostered a developing educational consensus that minority
and. (4) encouraging local community solutions to educational
problems. The technique used was in the nature of a political’
compromise that sat‘sfied minority groups, which obtained
more minority jobs in minority districts, without offending
Whites, who could continue to choose teachers from predomin-
i
antly White teacher lists purportedly chosen on a merit
selection basis. :
Revisions of the New York Education Law were based
|
om a number of racial factors which could no longer be ;
. 2 i
ignored. City public school student population had
dramatically changed from predominantly non-minority to
predominantly minority. The percentage of minority teachers--"
7% in 1969--though consonant with the percentage of minority
individuals in the relevant available work force--5% of iene
graduates in the United States and the New York Metropolitan |
area--was relatively static and disproportionate to the eiisins
ually,increasing minority student population. Low reading
achievement, particularly among minority students,
i
teacher role-model theories should be explored, at least |
|
Minority teacher hire rates haa
increased in school districts where the National Teachers
Examination and qualifying, rather than competitive |
examinations for teacher selection, had been utilized
= eee ere ore we
tual
_
ma mon
'
;
'
'
t
wes Ss SS SS eee Se st eS eS x
=
4
“Lass” $55 S33 SSS =
ee ee eee
—_—— ag nee oem eee ee eee es -—-
* @
_—- + . . es
==_ewre eo ame
experimentally. An overdependence on substitute licenses
was developing in various school districts, particularly
those with high concentrations of minority students;
this development was due in part to reluctance of some
older teachers with tenure to teach in schools in areas |
with high minority populations where crime rates and violence |
4
was greater than in some other areas of the City.
White teachers tended to live closer to schools with White
student bodies while Black and Hispanic teachers tended
to live closer to schools with high minority ratios; to
the extent that convenience of teachers and their social and
professional friendships entered into assignments, there was
a tendency towards ethnic concentrations.
Teacher hiring during the period 1970-71 through
me + me es
1974-75 indicated that the purpose of the amendments to | :
'
the Education Law--increasing minority teachers--was |
substantially realized. For Slacks the percentage
change was + 15.2%; for Hispanics it was + 112.6%. The
overall percentage of minority teachers in the school
system more than doubled from 7% in 1969 to 15% in 1976.
In view of the tenure of older teachers, the contraction
of the public school system under fiscal pressures,
reductions in students due to a drop in birth rates, increases
in private school enrollment, and loss of central city
population, this change is reflective of a strong policy |
ee ee meee ee ee:
&gO-
em = eee ere
———
-— —
to increase the percentage of minority school teachers.
One predictable result of these statutory changes
was that a disproportionate percentage of the new minority
teachers were assigned to schools with disproportionately
high minority school populations. The districts in the lowest:
45 percentiles of reading scores were the districts with the
highest minority populations.
to ignore the ranked lists in these
}
Local pressures of the |
minority populations
districts meant that Black teachers found it easier to .
obtain jobs in these districts than in the White-controlled,
.
White student districts.
An irony of this litigation is that among the
I: circumstances that now serve to block ESAA funding is the
more than twofold increase in minority teachers in the
school system between 1969 and 1976. During this lawsuit,
.
the federal government has acknowledged that it has no desire
to challenge the constitutionality of the 1969 amendments
\ to New York's Education Law. [It approves the resultant
j growth in the proportion of minority teachers but not their
4
: assignment to predominantly minority schools.
-6l-
|
|
|
|
|
|
|
I ale
; w
oO
—_————
— se or —_——"
.
————
”
ee
ee ee ie
SO See ser ct ter ero ree ee tae ee
a i 9 oil Sin
. eg
2. ‘Demographic Changes
In 1957, the student population of the New York
, City School District was 68.3% non-minority; in 1975,
. 32.1% non-minority. During the same period the non-minority
{ population of New York City decreased by 702,699, while
» the minority population increased by 815,566. Non-minorities
'
|
i
|
'
continued to leave the City in larger, and enter the City
| in smaller, percentages than minorities. The birth rate |
of the minority population has been substantially higher than -
that of others. Moreover, the ratio of minority students to
others in non-public schools remains relatively low and |
private school enrollment has continued to increase.
|
Housing patterns in virtually all boroughs of
the City of New York reflected such large concentrations °
minority and non-minority groups that zoning of school
feeder patterns to achieve racial balance became increas-
ingly difficult during the 1960's and 1970's. To improve
racial balance, the Board devised various zoning strategies,
such as choice of admissions, paired schools, and scrutiny
of school site selection. It is apparent, nevertheless,
that the schools have become more, rather than less,
desegregated and that this trend continues virtually unabated,
3./ Contractual Provisions and Court Orders
Teacher assignments reflect date-of-hire seniority —
under provisions of the collective bargaining agreement
en ee eS _—_—_—— ow -
~6§62-
els ee ee ——
s
Wher Ase erp!
ee
eS 27°73"
Pe gk
tau Fae wae oe eee =r
between the Board of Education and the United Federation
of Teachers which provide that vacancies as they arise must
be offered in the first instance to teachers with the
| greatest length of service.
provisions, on May 15 of each school year, teachers have
been able to request transfers to system-wide vacancies
based upon system-wide seniority.
selection, teachers choose schools near their homes or
‘schools they find more congenial.
Under these contractual
As a matter of self-
Ethnic concentrations
result.
Vacancies in specific licenses must, where
possible, be filled by licensed persons. Thus, the number
of minority and non-minority persons possessing specific
licenses and the number of vacancies in a particular license
area determine the incidence and distribution of teachers
in the school system--these are ethnic concentrations based
upon historical ethnic favoring of some fields more than
otiers.
Implementation of the consent decree in Aspira
of New York, Inc. v. Board of Education, 72 Civ. 2004
S.D.N.¥. August 29, 1974), requiring the provision of
Lilingual instruction to Spanish-dominant children
resulted in the concentration of Hispanic teachers in
.chools with high Hispanic student populations.
woe | eremamwrese + 8 CCE Sases ccee COO
ee ee ome eee
———
eT
.
Ps
8 CA ee =
—_— er
~63-
—=— = = =o
coro
wee er ee ie
eee
% "=" 99° © sea -s PSEB
oo ee ee Oe ee
Some reversal of the tendency to minority
concentration is now expected. Under a newly developed
teacher recall plan for fall 1977, assignments of teachers
will be made so as to further racial balance of teaching
staffs in all schools, not inconsistent with the Aspira
consent decree.
B:' Community School District ll
Only two schools in District ll, P.s. 111 and
P.S. 112, out of 31, have both a disproportion of minority
students and minority teachers. The staffs of these |
schools were apparently assembled prior to 1960, before
they were minority schools. Transfer of the experienced
minority teachers from these schools to others to achieve
a statistical racial balance would, according to Local
Board 11, disrupt current teaching programs to the dis-
advantage ot both students and teachers. In District 11,
the practice since 1972 has been, plaintiffs assert, to
attempt to reduce the correlation between minority students
and minority teachers by making all new assignments of
minority teachers to non-minority schools. It remains to
be determined whether any fluctuation in the minority
teacher population in these schools was de minimis or
Statistically significant. See Hazelwood School Dist.
v. United States, 97 S.Ct. 2736, 2743-44 (1977).
© For the year 1972-73, a teacher went on leave and was from teacher leaves and substitute assignments. November 9,
4 ; | sm ,
; of i |
L |
ut ' '
34 i
—<—+ © - D oo Bf 1 0065 00: eee 6 CGD: 0 Ge 200 eee eee » - :
i i ; me?
i The City presents the following statistics and ’ So EY A: tas 5 dk ade oi i
[ explanation concerning the assignments of teachers to Say :
\ pay The assignments to P.S. 111 are as follows: ee
h P.S. 112 and P.S. lll. ra aap RN ai | {
; e] otal per in. Tota Min. Total : .
; The assignments of teachers to F.S. 112 are : 24 f Dist. ll H.E.W. va bist. oan See, ! 5
—— at
f as follows: Sia F 1971-72 42 . 48 ll 19 .
- 4 ; .
Total per Total per Min. Total Min. Total er » 1972-73 42 Oe
i Dist. 11 H.E.W. per Dist. ll ‘per H.E.W. | h 55 10 13 |
. t .
t 1973-74 44 58 1l 17 - i
- 6 t t
1971-72 .33 . 32 6 :
1972-73 34 33 7 7 ee a6 59 12 18
‘ 1975-76 39 47 ll 14 {
1973-74 33 36 5 6 |
1974-75 33 33 7 8 * Similarly for P.S. 111, the number of minority teachers :
1 =1975-76 24 29 6 7 was 11 in 1972 and is presently 11 with fluctuations resulting :
i. 4 5 i
"
t
t
replaced by the non-permanent assignment of a minority 1977 affidavit of Nicholas Cicchetti at pp. i-2. |
it substitute teacher in 1973-74; another teacher went on
; leave and 1 Black teacher achieved a license in Special
ee ee
| H.E.W. disagrees with Local Board ll's justification.
{
It maintains that the facts in the administrative record do |
, ‘ {
Education and lett the school reducing the number or :
if
,
» mot support plaintiffs’ representations, but rather
w minority teachers to 5. In 1974-75 the teacher on Leave * establish that since June 23, 1972, minority faculty members |
\ } te es 4 &
} xeturned and 1 part-time bilingual teacher for a bilingual a have been added to P.S. 111 and P.S. 112. H.E.W.'s own 2
<p ; \ *
program was hired. In 1975-76 the bilingual program was Ea : x
? . a ne | he
* mot renewed and the number of minority teachers was again ‘ Kg
: . .
I Ra! oe
i 6 as it had been in 1971-72. a 2]
:
:
r ‘
H ‘
| | i
haoe | Non: Baws + * ° << - = By i H
: ’ |
' - ° on one - . . Sse
anand = ---= - eee ere eee
ET I I I EE ET EE EG GO OE ee em
- _ e + ce .
-66-
ad ee ee ee og.
ee fie
analysis
1971/2
1972/3
1973/4
1974/5
1975/6
Gov'ts brief of November 10, 1977, at pp-
pretation of teacher statistics for P.S.
identifiable as a re
defendants present the
Year
1971/2
1972/3
1973/4
1974/5
1975/6
Id. at P-
minority in student popu
community of the Bronx is predomin
The parties also da
Total
Faculty
23°
19
18
19
15
7.
plaintiffs explain that District ll is pred
@ Minority Paculty
P.S. 11)
39.6
23.6
29.3
30.5
29.8
predominantly non-minority schools determined to be
P.S. 108
Non-Minority
Faculty
(22
=¢7=
leads to the following percentages:
& Minority Faculty
P.S. 112
18.8
21.2
16.7
24.2
24.1
4-6.
isagree as to the proper inter-
83 and P.S. 108,
sult of faculty assignments. The
following statistics for P.S. 108:
tNon-Hinority
Faculty
95.7
100.0
100.0
100.0
100.0
lation (60%) although the surrounding °
antly non-minority in
——
racially
eee ee egos ermasanse
wanaienie
wT
_-
3. TT Pe tee SL ee
=
-_«e -
—
==
sr PIS tS Se
—
=
Sore rears Ss
a ee ee ‘ieagtie ious ciaetai wh
residential population. That disparity in distribution
of population results primarily from the fact that 17,000
children attend parochial schools in the District 1l area
which have an 80% non-minority stuaent popusation, Notwith-.
standing this demographic factor, P.S. 108 is an integrated
public school with more than 50% non-minority students.
There was, in 1971-72, one minority staff member--not a
teacher, but rather a Bilingual School Community Coordinator
who left the school to assume a supervisory position in
another community school district. P.S. 108 has experienced
a declining student register so that the teaching staff
has consequently been reduced and teachers excessed to
other schools or other districts. (23 teachers in 1971-72;
13 in 1977.) In view of the vemenbiin in teaching staff
there has, according to plaintiffs, been no opportunity to
increase the minority teacher rate at this school until
this school year when one special services’ teacher was”
hired. November 9, 1977 affidavit of Nicholas Cicchetti,
at pp. 2-3.
'H.E.W. states that in P.S. 83 there were
increases in the number of non-minority full-time faculty
members. It presents the following statistics:
-68-
woo:
~“
eS
tee
pat
s
4L
——-— om ee en --
owe eee «mes ee oe + ee ene oe ee ees re
aS
.
re oY
3
uy.
MTs
PREYS
—_———2—we To
.
; pa
Pa 7
\ | ; ‘4 ;
. . 4 A ¢ '
H ; ° |
! j ;
i , z i
‘ Tee eae er ae) , 39
a omg +e _ ss - oo es - a comeamee. — oanea a .
P.S. 83 | d on aa
Total Non-Minority ‘*Non-Ninority ‘ — |
Year Faculty Faculty Faculty t Congress auopted the ESAA as Title VII of the
—_—_- i. .
1971/2 36 ” the Education Amendments of 1972. One purpose of the Act,
1972/3 37 36 | ich i Congress declared, is the provision of financial assistance to
1973/4 35 34 alee local educational agencies “to meet the special needs incident ~
1974/5 _ 36 35 sie . to the elimination of minority group segregation and dis- ;
1975/6 29 28 sar: crimination among students and faculty in elementary and
sov'ts brief of November 10, 1977 at p. 6-
ted
Plaintiffs explain that p.S. 83 is an integra
aily appointed member,
l district. At P.S. 83 there
who took an
that is not a regul
appointment in another schoo
reduced tne numpoer OL teaviicir 4554 Ggneu ~~ ee sonssc.
fact no
ssed from this school and there has been in
exce
number of minority teachers
or change in the
— November 9, 1977
assigned to this school since 1971-72.
i i » Be
affidavit of Nicholas Cicchetti at P
secondary schools. . . ." In section 792 of the Act, 20 U.S.C
funds to assist in “eliminating or preventing minority
‘ ;
} § 1601 (Supp. II 1972), Congress expresse] the need for federa
1
;
- group isolation and improving the quality of education for
’ all children."
The Act makes funds available for a
variety of enumerated activities related to its stated
objectives. It sets forth standards for determining
eligibility for assistance, 20 U.S.C. § 1605(a) (1) (Supp. II
~ tm mmm tl ww hs ow Base » .
2972) ané criteria for evaluating applications fox such
assistance. 20 U.S.C. § 1609(c) (Supp. II 1972).
.
Congressional hearings on the bill make clear that
eligibility for ESAA funding--specifically waivers of
. Segregation--do not depend upon absolute racial balancing
of faculty and staff in every school. The colloguy between
. Congressman Esch and Congressman Puchinski, the bill's
'
|
, ineligibility after a finding of constitutionally proscribed :
{
i
'
~~
=
—_—— ee | —
\ \ ;
Ps 41
N i ; ;
: defendants assert plaintiffs’ ineligibility for funding ;
; i :
j ym rests. Arguably, statistical data alone might be relied upon —
4 MN, TR aarti ceed. in enforcing the regulation Since it refers to identification © bi
sponsor is illuminating on the issue. ; bk
of schools--presumably by percentages of students or staff At
i Mr. Esch: T would like to inquire ; _ Of certain races, colors or national Origins. That section BY
i of the gentleman from Tllinois, who ; ni . ; ; x
i is chairman of the subcommittee which waaee - |
. produced this bill.....about one , a.)
critical aspect of cliqibility for a By . no educational agency shall be eligible i ;
assistance under this amendment, Will Ja, ? for assistance under the Act if, after : :
_ the Secretary be authorized to apply 2» E. pF £ has had or maintained .
the holding in the Singleton case i in effect an ractice, icy Or procedure :
‘which is that you have to have a per- 4 which results in discrimination ones : ; '
fect racial balance in the faculty r basis of race, color Or national origin ;
in every school in your district - : in the. . -assignment of any of its a
as a condition or requirement for i employees. . .including the assignment j
assistance under this program. ~~*" i of full-time Classroom teachers to schools
7 o of such agency in such a manner as to e.
Mx. Puchinski: -- the answer is ab- ; identify any of such schools as _ intended ;
solutely not. If it did, very few for studonts of a particntar sooo eee
school districts could qualify. or national origin.
F The Secretary will have to apply i J .
the eligibility requirements spelled (Emphasis added.)
' out in this amendment and those do ' Ae) : ;
‘ not include racial balancing of me j Plaintiffs maintain that defendants have
i faculty and staff in eve school. ; :
. Y ~~ , construed section 185.43(b) (2) to. require the denial of :
t 117 Cong. Rec. 39332-33 (1971). . ELSAA funding merely because of a disparate incidence or
4 : 4isteibution of minority tcacho-- is reeult-orie ’
id The statute and applicable seyuiations spear. of aie oFaty Scachers. This rceult-orientea
: Lees . '
discriminatory practices after June 23, 1972. See construction plaintiffs contend, is erroneous. It is ;
| 20 U-S.C. § 1601-12, 45 C.F.R. § 185.00 et seg. and inconsistent with section 1605(4) (1) (B) and misconstrues i ff
? — hes 3
| $ U.S.C. § 702. Section 1605(c) (1) (B) of title 20 of 3. the regulations because, in effect, it creates an ir- \° Ba
: s :
7 the United States Code provides that: 4 rebutable presumption that disparate ethnic statistics ‘
i >=} : Ph
. no educational agency shall be eligible ae of teacher incidence and distribution constitute dis- 3
t Hq a ae = Oi eer fete Ss crimination in teacher assignment violative of ESAA. j
based upon race, color or national origin ’ j
in the hiring, Promotion, or assigninent
of employees in the agency. .. i
. (Emphasis added.) Promulgated under section 1605 (a) (1) (B)
‘i ‘
: ood
‘ Of title 20 is 45 c.F.R. section 185.43 (b) (2) upon which |
i aw SO rere en, scene =
-7l- «F2<
—_—— ——— om . - ' ?
" [ |
, “a t iN,
7 PA
i 7 42 | §&
er Ne eS lag ee ee ane c+ ce terseccam ae semmerbeve Jo y But our cases have not cmbraced the ij Pe
f | ¢ ? to ggg ft that a law or other official . i Ps
‘ R 2 + : act, without regard to whether it reflects ve
, Plaintiffs insist that disparate impact evidenced by | xt i a racially discriminatory purpose, is | =
4 : ; | . : kp unconstitutional solely because it has ee
| statistical data is not tantamount to discrimination. | 4 a racially disproportionate impact. i. x
* According to the plaintiffs, the Constitution, statute and 4 | Id. at 239, 96 S.Ct. at 2047 (emphasis in original) The Court ||”
Y aul aa d < “i
| xegulation require that evidence that a disparity results | be. explicitly held that: M l =
from neutral factors, rather than from a discriminatory ' & - . P ;
; : Fe : C Disproportionate impact is not irrelevant, :
urpose or plan, must be considered by H.E.W. in determinin but it is not the sole touchstone of an H
. ‘ vf ™ \ . invidious racial discrimination forbidden
whether the assignment and hiring pattern observed bars / by the Constitution. Standing alone, it ;
: does not trigger the rule, McLaughlin !
t eligibility for ESAA funding. v. Florida, 379 U.S. 184, 85 S.Ct. 283, !
| 13 L-Ed.2d 222 (1964), that racial
” A. Burden of Proof classifications are to be subjected to |
. ? the strictest scrutiny and are justifiable I
Statistical disparities alone provide the basis for ' i only by the weightiest of considerations.
i '
Pere i t
: a rebuttable, not an irrebuttable, presumption of siemens “Id. at 242, 96 S.Ct. at 2049. Citing Alexander v. Louisiana,
) tion. Irrebuttable presumptions are disfavored. In anertiny I 40s U.S. 625, 92 S.Ct. 1221 (1972), a case concerning j
[ : . ° oT : {
a rule of evidence shifting only the burden of coming forward, | discrimination in a jury selection, the Court gave further i
. . '
x Congress suggested a general policy against powerful pre- ‘ instruction on how the burden of proof shifts in a racial :
j sumptions unless it specifically found the need for a more PES Cer re case:
. : . H
4 powerful presumption. Fed. R. Evid. Rule 301; Cong. Record, With a prima facie case made out, “the y
‘. * ‘ \ burden of proof shifts to the State to . Eo}
Sept. 14, 1974, H 11929-11930. The Supreme Court has shown " : rebut the presumption of unconstitutional e ee
. some disquiet with use of irrebuttable presumptions to deny ket : Sr tata’ saneeat akin cae ceneehibes \ : i
i important rights. Cf. e.g.., Cleveland Bd. of Ed. v. aE ; be pe a sgggoen = oe ee 4
. be H pn RY , 9° ’ ea
‘ba Pleur, 414 U.S. 632, 94 S.Ct. 791 (1974); Note, The a i S.Ct. at 1226, 31 L.£d.2d at 542. Fe
Irrebuttable Presumption Doctrine in the Supreme Court, =) tla. at 241, 96 S.Ct. 2048. Pn
| 87 Harv. L. Rev. 1534 (1974). —.
———— ss oe die ~*. . ! !
In Washington v. Davis, 426 U.S. 229, 96 S.Ct. |
’ 2049 (1976), the,Court rejected the proposition that racial
disproportion necessarily reflects illegal discrimination. r i
‘ It noted:
— - -—-—
—T eee ee eee
' '
SE
-73- -74-
she
sn salina acl welll
‘ ( bad ' - ‘ '
: € 1 4 ad
, : ha a 1
h ' ‘i |
> : It i
4 ’ ;
‘ “ 44 i ae 5 eh Voanet eve
‘ie ete hse = Vr yer wee i.
; ; Id. at 209, 93 S.Ct. at 2698. It then noted that in dis- -@°
d Some aspect of mala fides, no matter how remote : { | 3:
2 | 3 if charging their burden of proof that segregated schooling XS
“or indirect, must be attributable to the defendants before : ? ) : pas
: its aay t is not also the result of intentionally segregative acts, Hae S30
{they can be found to have illegally racially discriminated. : } “ | ise
: z y “it is not enough, of course, that the school authorities ‘<
; > " ,
‘ s ; , ° yh a
q Mather an unacceptable state of mind be reflected by acting j xely upon some allegedly logical, racially neutral explanation -
ag nee cee yh b: ee ; ‘
cea intent to discriminate, Keyes v. ‘School Dis. No. l, for their actions." Rather, “(T)heir burden is to adduce |e
‘ ‘a i .
J “ P ui
4 act ha is- :
5 one to act with intent that the failure have a dis ; j ieee whe apt ng the factors that motivated their
3 i ffect, or b Lful or hi ; L
Regge yal effect, y willful or even negligent disregard 2 actions." Id. at 210, 93 S.ct. at 2698.
3 e racial effect of an act or failure to act, tart , ‘ .
jot = 7 — More recent discussions of discriminatory intent :
$ ; '
Sv. Community School Bd. Ed., N.¥. Sch. Dist. 21, 512 F.2d ' ' : ’ : :
‘ =y = : °- ; are found in Village of Arlington Heights v. Metropolitan |
~37, Sl (2c Cir. 1975), some delict, some illeorl purrose, } : ;
x ‘ 7 : 2 — ' Housing Development Corporation, --U.S.--, 97 S.Ct. 555 (1977)
® some blamewor*hy failure on the part of a d:fsondant as a ; I, ;
‘ ; i and Dayton v. Brinkman, 45 U.S.L.W. 4910 (June 27, 1977).
* reason for accountability is required. oe . ae ; i
’ » Arlington involved a petition to rezone from single to
4 8. Intent to Discriminate i ,
j % i . Multiple family classification, designed to increase minority .
‘ In Keyes v. School Dis. No. 1, Denver, Colorado, : ? |
P : « housing facilities. The petition was denied hy the Village;
} 413 U.S. 129, 93 S.Ct. 2606 (1973), the Court addressed i |
' i i Of Arlington, an almost entirely White community. The .
i the questicn of how intent is to be established in school i * i
| ‘iq t Court of Appeals held that the “ultimate effect" of the b
¢ cesegregation causes. The Couct first observed: $ ‘ -
S . ; Village's denial was racially discriminatory. The Supreme oe
z : 1 -- a
: Tnere are no a ea ae ee ae t- i Court reversed. 4
ni : location of c c - = : Sy
: aaa pa Pe voRgprenrosine 4 the issue, rather, i ' ; SH
’ “is merely a question of policy and fair- ; ss : Respandents simply failed to carry their burden
; ness bused on evnerience jn the different | ; of proving that discriminatory purpose was a. a
situations." 9 J. Wigrere, Evidence: § 2485, ; } | motivating factor in the Village's decision: =
at 275 (a cad. 3940). In the context of ae This conclusion ends the constitutional inquiry.
racial seyreg:tion in public education, the H | The Court of Appeals' further finding that the
courts, incluuiny this Court, have recognized | } Village's decision carried a discriminatory
a varicty of vitnstions in whieh “fairness” ' ; | este eacinttae 7 without independent |
and “policy,” resjuite state authoritics co | i constitutional significance. '
bear the burd-n of expluininy ections OF condi- | : : : 5
ejons8 which wre ¢ te be raciully mokivatet | | “*illaye of Arlington Heights, supra at 566. In note 21
t * . . ° + soca: : oe +s os ae és « . eee sense se |
=7S— -76-
SOP a ae Ve CS
SU a a PO aT.
oe ae ti Se
wer. tae
the Court explained that:
Id. at 565.
- + ome 6 +e mmeree |
Proof that the decision by the Village was
motivated in part by a racially discriminatory
p
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