Petition — Board of Education of the City School District v. Harris

Supreme Court brief1979

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Text

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

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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-

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£ the Plain tiffs

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1977-7 © denieg 5

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{ Civid yy Port w

_ — EO ES EE LR RN ES ene ee ge en IN

Defendant Goldberg's July 1, 1977 letter cited

'

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!

|

‘

'

‘

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.

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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

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tr rt re. et. 21 rer mere arm sees et mt

. in support '

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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 ;

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et

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'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

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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> * _

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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

!

’

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of the Community school pistrict ll show cause hearing t

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ist In paragraph 21, Mr- Cicchetti states that the agency é

assistance

! ; :

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‘ 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

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the eligibility of Community School District 11.

paragraph 20, he states:

12

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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.

|

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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 -~

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ba —J om “

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: 32 : = &

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3 ome Sy ; SS won ie

= jc r o al SD 2 ae Ps

s . -— ce %

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: : aN ee *

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on

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: sf T T af ‘ee 7

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oe = w : ae iat) ;

Nn *JSBLS ALIYONIW LN3IU3d

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. oO nm” ee ll ot eee te wee a

————

~-_-

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-49-

-50-

wil

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-

(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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