Petition — Griffin v. Board of Education

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Text

83-625

No.

IN THE

Supreme Court of the United States

October Term, 1983

JAMES D. GRIFFIN, The Mayor, and THE COMMON

COUNCIL OF THE CITY OF BUFFALO, NEW YORK,

Petitioners,

vs.

THE BOARD OF EDUCATION OF THE CITY OF

BUFFALO, NEW YORK; COMMUNITY ADVISORY

BOARD FOR BILINGUAL EDUCATION OF

BUFFALO, ET AL..

Respondents,

and

GEORGE ARTHUR, ET AL.; and the NATIONAL

ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

Respondents.

On WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT.

PETITION FOR WRIT OF CERTIORARI

FRANK G. RAICHLE, ESQ.

Designated Counsel of Record; and

ARNOLD WE)SS, ESQ.

Attorneys for Petitioners

1400 Main Place Tower

Buffalo, New York 14202

Telephone: (716) 852-7587

‘|

"atavia Times Publishing Co.

Batavia, N.Y. (716) 344-2000

Questions Presented for Review

1. May a Federal court constitutionally direct a City

to appropriate additional funds for its School Board

under the “guise” of desegregation expenses, and avoid

making Findings identifying particular items required for

desegregation, by holding that under School Board’s

extravagant voluntary desegregation plan designed to

entice suburban students into City District, every

dollar of its $156 Million budget is required for

desegregation?”

2. Did Federal court unconstitutionally usurp New

York State’s Budgeting process, when it imposed

additional taxes on its Citizens without Findings of

particular desegregation necessity?

3. May Federal court constitutionally direct a City to

appropriate $7.4 Million additional funds to its School

Board for claimed desegregation expenses, where that

sum was picked out-of-the-air by School Board’s Trial

Counsel, and NAACP plaintiffs-respondents claimed the

funds were not required for desegregation, and requested

reversal and remand?

4. Does the Second Circuit’s decision conflict with the

Eighth Circuit’s order in Liddell vs. Board of Education

of the City of St. Louis, et al, (9/13/83) F. 2d

5. Was extravagant voluntary desegregation plan a

reverse “interdistrict remedy” for an “intradistrict”

violation contrary to Swan vs. Charlotte - Mecklenburg

Bad. Ed., 402 US 1, and Milliken us. Bradley, 418 US

717?

7 a - 2 S

; ge hole eb i Ki Re age tS 8

2 3 ax 2 Eee ere 2

ii.

The Parties in the Court Below

IN THE

UNITED STATES COURT OF APPEALS

For the Second Circuit

Court of Appeals Docket No. 82-7690

GEORGE ARTHUR, NORMAN GOLDFARB, WILLIAM AND

WILHELMINA P. SEALES, JOHN MEDIGE and THE

CITIZENS COUNCIL FOR HUMAN RELATIONS, INC. and

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, BUFFALO BRANCH,

Plaintiffs-Appellees,

COMMUNITY ADVISORY BOARD FOR’ BILINGUAL

EDUCATION OF BUFFALO, LOURDES AGOSTO, Fee

and on behalf of her minor children Samuel Jose & Pable Agosto,

Jr., ELSA CRUZ, individually and on behalf of her minor child

Monic Cruz, ANNETTE Y. BROWN, as parent of JAMES C.

SATTERWHITE, a child presently enrolled in the Buffalo Cit

School System, as a trainable, mentally retarded student on behalf

of herself and other parents of trainable, mentally retarded

students in the City of Buffalo School System,

Plaintiffs-Intervenors-Appellees,

vs.

EWALD P. NYQUIST, ‘individually and as Commissioner of

Education of the State of New York, THE BOARD OF

REGENTS OF THE STATE OF NEW YORK, THOMAS M.

i =

W! 1

Individually and as Superintendent of the Schools of the City of

Buffalo, EUGENE T. REVILLE, Individually and as

of Schools of the City of Buffalo, THE BOARD

OF EDUCATION OF THE CITY OF BUFFALO, FLORENCE E.

BAUGH, VEL E. SACCO, JOSEPH E. MURPHY,

MOZELLA RI RDSON, DR. MATT A. GAJEWSKI, LOUIS

C. BENTON, MICHAEL J. RYAN, JOSEPH D. HILLERY and

MARILYN P. KAVANAGH, Individually and as Members of he

Board of Education of the City of Buffalo, JAMES T GRIFFIN,

Mayor of the City of Buffalo, and DELMAR L. MITCHELL,

RAYMOND LEWANDOWSKI, GUS FRANCZYK, ALFREDA

W. SLOMINSKi, WILLIAM J. DAURIA, JOSEPH S. FORMA,

MICHAEL McCARTHY, WILLIAM B. HOYT, GEORGE K.

ARTHUR, RICHARD F. OKONIiEWSKI, HORACE C.

JOHNSON, JOHN A. RAMUNNO, ANTHONY M. MASSIELLO,

DANIEL J. HIGGINS and WILLIAM A. PRICE,

the members of the COMMON COUNCIL OF THE CITY OF

BUFFALO,

Defendants-Appellees,

JAMES D. GRIFFIN, Mayor of the City of Buffalo, and DELMAR

L. MITCHELL, RAYMOND LEWANDOWSKI, GUS

FRANCZYK, ALFREDA W. SLOMINSKI, WILLIAM J.

DAURIA, JOSEPH S. FORMA, MICHAEL McCARTHY,

WILLIAM B. HOYT, GEORGE K. ARTHUR, RICHARD F.

OKONIEWSKI, HORACE C. JOHNSCN, JOHN A RAMUNNO,

ANTHONY M. MASIELLO, DANIEL J. HIGGINS, and

WILLIAM A. PRICE, constituting the members of the COMMON

COUNCIL OF THE CITY OF BUFFALO,

Defendants-Appellants.

iv.

TABLE OF CONTENTS.

Page

Questions Presented for Revieeo y. i

The Parties in the Court Below O· ii

— — —— ! 8 iv

Appendices to Petition v

— m — ¼PfIJ ·.·1· ECE PEL vi

— ¶ ũͥuèUdc nmn)nm])]ñd 3 2

Jurisdictional Statement 3

Constitutional and Statutory Provisions Involved... 3

EL EP Pe Pen ee 8 5

Reasons for Allowance of Wrilt .. 11

The Court made no findings of desegregation

necessity to justify the mandatory in junction. 13

Failure to link the request for funds to

desegregation orders was fatal to jurisdiction.. 17

“Separation of Powers” and State's Rights

prohibit any direction to fund non-

desegregational expenses. 18

The School Board already was in “full

compliance with all desegregation orders 19

threshold jurisdictional requirement of

desegregational necessity . 20

Conflict with the Eighth Circuit’s Order in

Liddell vs. City of St. Louis. 23

The District Court ordered an ‘‘interdistrict”

"oe

Page

Appendices to Petition:

Appendix (i- Opinion of the United States Court

of Appeals for the Second Circuit dated and

filed July 22, 1983, and reported at 712 F.2d

——5·².d »Die we CONE la

Appendix (ii)—Opinion of the United States

District Court for the Western District of New

York, per Curtin, Ch. J., dated and entered

June 30, 1982 (unreported), granting a Hearing

on request for additional funds .............. 16a

Appendix (ii)—Opinion of the United States

District Court for the Western District of New

York, per Curtin, Ch. J., dated and entered

August 27, 1982, and reported at 547 F. Supp.

Appendix (iii) Judgment of the United States

Court of Appeals for the Second Circuit dated

and filed July 22, 1983 ............. 8 67a

Appendix (iv)—Excerpts of trial exhibits........ 69a

Appendix (v)—Text of pertinent New York

Statutory Provisionnsgsass 87a

Appendix (vi):—Order of the United States Court

of Appeals for the Eighth Circuit, filed

September 13, 1983, in Liddell v. City of St.

ad —T———̃— p ˙ mw ]«‚«ß«rꝓtↄ 96a

1 vi.

: Page

TABLE OF AUTHORITIES.

Cases:

* Liddell v. Board of Education of the City of St.

a Louis, et al., (9/18/93) F. e. i. v. 23.24

Milliken v. Bradley, 418 US 717. 1.25

Moor v. Texas and New Orleans Railroad Company.

906 U.S. 101, 80 L. d. GOO. ũũ cece ec cceees 15

Beers Hs TBs e ee 18

Oliver v. Kalamazoo Board of Education, 640 F.2d

e » e 14.15

Pasadena City Board of Education v. Spangler, 427

U.S. 424, 49 L. Ed. 2d 599. ũ%ůnʒmn cece es 13 .

i Reed v. Cleveland Board of Education, 581 F.2d “f

: ö.. Cec We whee ¢ ob FOE 0 ithe 14

< Swan v. Charlotte-Mecklenburg Bd./Ed., 402 US 1. 1. 25 |

Statutes: :

Buffalo City Charter §39 through 444. 5,7

New York Education Law 5257666. 5,7

5 Wr eee 5

„ eee 5 ‘

8 Rules: 5

Federal Rules of Civil Procedure 4

, . 3.13

i TM, Coes ct et ere he capes hiss one bowen 3,4,13

5 e eee CIPI, EOP OT 4,18 |

e ae e ip Veh Wb SO ae,

Amendment .. —— eeee 1 — œũ ·Tlrt 4.18 1

tesa gst eee Gisele e

Z ;

11 n — * 7

* 9 2 ; *

Ss . me 7

75 ? art ms 5

IN THE

Supreme Court of the United States

October Term, 1983

No.

JAMES D. GRIFFIN, The Mayor, and THE COMMON

COUNCIL OF THE CITY OF BUFFALO, NEW YORK,

Petitioners,

vs.

THE BOARD OF EDUCATION OF THE CITY OF

BUFFALO, NEW YORK; COMMUNITY ADVISORY

BOAKD FOR BILINGUAL EDUCATION OF

BUFFALO, ET AL.

Respondents,

and

GEORGE ARTHUR, ET AL., and the NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE SECOND CIRCUIT,

PETITION FOR WRIT OF CERTIORARI

Opinions Below

The opinion dated July 22, 1983 of the United States 3

Court of Appeals for the Second Circuit is reported at ay

712 F.2d 809, and is reproduced in Appendix (i) at page Ia.

The preliminary opinion dated June 30, 1982 of the

United States District Court for the Western District of

New York, per Curtin, Ch. J., setting a Hearing on the

request for additional funds, is unreported; and is

reproduced under Appendix (ii) at page 16a.

| The opinion dated August 27, 1982 of the United

States District Court for the Western District of New

York, per Curtin, Ch. J., is reported at 547 F. Supp. 468;

and is reproduced under Appendix (ii) at page 24a.

< * a 4 — *

* ayes ar Vf . ay 1 *

D A es Bee 4

74 ane SD ail * Ls

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Jurisdictional Statement

The Judgment of the United States Court of Appeals

for the Second Circuit sought to be reviewed was dated

July 22, 1983, and was entered on the same day in the

Office of the Clerk of said Court.

The Mandate was filed in the United States District

Court for the Western District of New York on August

29, 1983.

No application was made by any party for rehearing by

the Court of Appeals; and no order was granted

respecting rehearing.

Jurisdiction is conferred on the Supreme Court of the

United States to review the Judgment below of the

United States Court of Appeals for the Second Circuit by

Writ of Certiorari by Title 28 USCA §1254(1), and

pursuant to Article III, §§1 & 2 of the Constitution of

the United States.

Constitutional and Statutory Provisions Involved

FEDERAL RULES OF CIVIL PROCEDURE

“Rule 52. Findings by the Court

“(a) Effect. In all actions tried upon the facts

without a jury or with an advisory jury, the court

shall find the facts and state separately its

conclusions of law 8 he

entered pursuant to Rule 58; and in granting or

interlocutory injunctions the court shall

set forth the findings of fact and

of law which constitute the grounds of

its action. for findings are not necessary

2 sa

* at = *

CONSTITUTIONAL PROVISIONS

Article. I.

“Section. 1. All legislative Powers herein granted

shall be vested in Congress of the United States,

which shall consist of a Senate and a House of

Representatives.”

Article. II.

Section. 1. The executive Power shal be vested

in a President of the United States.

Article. III.

Section. 1. The judicial Power of the United

States, shall be vested in one supreme Court, and in

“AMENDMENT HX.

The enumeration in the Constitution, of certain

. eee

retained by the people.

“AMENDMENT N.]

The powers not delegated to the United States

by the agen ane pier ay the

33 are reserved | se or

“AMENDMENT V. 5

No person shall b. . . deprived of life, liberty, or

property without due process of law; . ...”

“AMENDMENT [XIV.]

“Section 1. ... No State shall ... deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

NEW YORK STATUTORY PROVISIONS

Education Law 52576

(reproduced under Appendix (v) at page 87a).

Buffalo City Charter §39 through 44

(reproduced under Appendix (v) at page 92a).

Statement of Case

This class action was commenced pursuant to Title 28

USCA $1343 in the United States District Court for the

Western District of New York in 1973 and asserted

Federal jurisdiction based on allegations that plaintiffs

were deprived of their equal protection rights by

alleged segregation in the Buffalo Public School System

in violation of Constitution Amendment XIV $1 and

Title 42 USCA 6198.

In 1976 the District Court held that the Buffalo Public

School System had been intentionally segregated (415 F.

Supp. 904). In 1978 the Court of Appeals for the Second

Circuit affirmed that finding in part, and remanded in

part (573 F.2d 134).

7~ (ave

ites

„ «4

plaintiff NAACP, that “everything is necessary for

desegregation,” even though entirely unrelated to

desegregation.

The case involves the basic question of whether the

Board can assert that in a voluntary desegregation

plan, every expense is necessary for desegregation.

Thus, the case is: Does a District Court have unlimi(ed

requisition power over a City’s tax revenues in order to

finance school newspapers, clubs, swimming pools,

wrestling teams, karate, and other frills, however

luxurious and extravagant, and however actually

unrelated to desegregation?

Each of these expenses, and other expenses and

programs that were unrelated to desegregation, could

have been cut, modified, adjusted, or rebudgeted.

However, the Board refused to make any cuts or

rebudget—claiming that “everything is necessary for

The District Court agreed. But it made no Findings of

Fact, and the Court of Appeals failed to require it to

make any Findings of Fact, that everything is

necessary for desegregation. There were no Findings

that Petitioners’ $7.4 Million increase in its 1982-83

r propriation to the Board was inadequate to enable the

Board to carry out any, or all, of its desegregation

mandates.

The NAACP plaintiff disagreed with the Board’s

position, and asserted before the Court of Appeals that

respondent Board, and other Boards around the country,

are za

This appeal concerns the adequacy of Petitioners’

$150,629,688 appropriation (composed of a $149.1

Operations & Maintenance or O & M Appropriation,

and a $1.5 Capital Exempt Appropriation) to the Board

for the 1982-83 School Year. The O & M Appropriation

was $7.9 Million greater that Petitioners’ O & M $142.2

appropriation to the Board for the prior 1981-82 School

Year. This increase for 1982-83 was many times greater,

actually over 3 times more, than the Board's documented

increase in desegregation expenses for the 1982-83

School Year.

At the time respondents requested the additional

funds, each remedial order issued by the District Court

had been fully and timely carried out. All physical

improvements required were installed and in place, and

the Board was in “full compliance” with the Court's

orders during the 1981-82 School Year, which ended June

30, 1982.

No new desegregation programs or expenditures had

been ordered by the Court for the 1982-83 or subsequent

School Year, and the Court was preparing to issue a final

order ending the case.

This desegregation progress, and full compliance,”

was accomplished by the Board with the appropriations

theretofore provided by Petitioners under the City’s

democratic Legislative/Executive budgeting process, as

mandated by New York Education Law §2576 and City

Charter §39.

The latest order, filed on May 19, 1981, directed

implementation of Phase IIIx (expedited) by September

1981. Phase IIIx established separate Early Childhood

Centers (ECCs) for grades K (and pre-K) through 2, and

separate Academies for grades 3 through 8, in different

parts of the City.

Phase IIIx required the expenditure of substantial

funds for construction and installation of the

major physical improvements necessarily required to

convert the normal schools to ECCs and Academies.

Further, this had to be accomplished, and was

accomplished, on an expedited basis in order to meet the

Court’s short deadline. It was all in place, and all paid

for, prior to the start of the 1982-83 School Year

involved herein.

The District Court had issued an order on August 14,

1981 which directed an additional appropriation of $1.987

Million ... in addition to Petitioners’ original 1981-82

O & M appropriation of $139.7 Million for the 1981-82

School Year. The District’s order of August 14, 1981

constituted its approval of the adequacy of the resulting

total O & M appropriation of $142.7 Million to carry out

its desegregation orders for the 1981-82 School Year.

The Board of Education not only completed the 1981-

82 School Year in full compliance,” but it also “‘put-in-

place, and implemented and carried out, Phase IIIx

during 1981-82, and carried out all other desegregation

orders that had been issued, and ended the year with an

admitted surplus, the amount of which the District Court

refused to inquire into (estimated at over $2 Million).

Thus, well prior to the commencement of the 1982-83

School Year before the Court, all Remedial Desegregation

Orders, including the latest Phase IIIx order, had been

fully funded by Petitioners, and fully implemented by

respondents.

made no finding, that any remedial order had not been

fully carried out within the Court imposed

limitations. Nor was there any finding that the

was in anything but “full compliance.”

The 1981-82 judicially approved O & M appropriation

of $142.7 Million, less the Board’s surplus for that year,

was the logical starting point from which to determine

the amount that the Board required for the 1982-83

School Year to carry out the desegregation orders of the

Court. All that was required of the District Court was to

add to this figure the increase in the Board's

desegregation and mandated expenses for the next year.

This was simple enough, since the Board clearly stated

its increased desegregation requirements for 1982-83.

The School Board reported that it would require $2.1

Million additional for the 1982-83 School Year for the

Board's entire Basic Desegregation Program (that is,

everything but Phase IIIX), and that the Board would

require an additional $0.3 Million ($328,476) for its Phase

IIIx Program.

Thus, the Board stated it required only an increase in

its 1981-82 appropriation, for desegregation purposes, of

$2.4 Million. With Petitioners’ $7.9 Million increase in

the Board’s appropriation for 1982-83, the Board had

three times the increased funds it stated that it required

to finance its increased desegregation expenses for 1982-

83.

Even if the Board's $1.6 Million increased 1982-83

expenses for Handicapped students is taken into

account, the Board’s increased desegregation

requirements for 1982-83 totaled $4.0 Million, or only

50% of Petitioners’ 1982-83 increase in its appropriation.

The Board's request for 87.4 Million increased

appropriation was actually never determined by a Board

Resolution or Official Board Action. Rather, the $7.4

Million figure was arbitrarily selected by the Board's

Trial Counsel on the eve of appearing in Court. The

Board’s Associate Superintendent of Schools and

n Be Retina f ditt . 4182

R .

Director of Finances testified that the $7.4 Million figure

was selected by Trial Counsel, and it was admitted at the

Hearing that it never had any Official Board sanction.

Nor was there any finding that the Board was unable

to cut its non-desegregation expenses by more than

enough to meet any other desegregation expenses that it

might have for 1982-83. To the contrary, the evidence

demonstrated that the Board had numerous areas in

which it could effect cuts without affecting its

desegregation Programs.

These areas of potential cuts included: the frills

to entice suburban students into the District; cuts of up

to 10% of the Board’s $90 Million payroll made possible

by the Board’s Collective Bargaining contract provision

permitting increases in class size when funds are not

available; elimination of the Pre-K classes and All-Day K

classes, which are a rarity in New York State Schools;

realization of the savings from closing of two schools,

and projected decrease of 1,185 pupils, for 1982-83;

utilization of the Board’s 1981-82 surplus the amount of

which the Board reiused to disclose; placing a hold on

the Board’s plans to upgrade its physical plant at a cost

of approximately $3 Million; etc.

More importantly, it required no expertise for the

District Court to find places in which to make cuts in the

Board's request. Cuts of far more than the $7.4 Million

requested increase could have readily been accomplished

merely by implementing the Board's own expertly

prepared lists of potential cuts which could be

implemented if required. These included the Board's

“contingency lists“, ie: its list of $10.1 Million in

“Projected Cuts; and its Page 1 list of $18 Million in

Instructional Division Cuts (Appendix (iv) at pp. Sla-

83a).

These lists of potential cuts represent the Board's

own expert analysis of areas in which cuts could be made

without interfering with any desegregation order of the

Court. These cuts, which would have been made by the

Board but for the intervention of the District Court,

total more than $22.0 Million, or more than 3X the $7.4

Million additional appropriation directed by the District

Court.

Reasons for Allowance of Writ

Thomas I. Atkins, Esq., who appeared for the

Plaintiffs on the oral argument in the Court of Appeals,

said in his brief:

needed to carry out court-ordered remedies. In

Atkins’ view, school boards were pursuing their

private agendas of unmet educational needs, while

those advancing the cause of school tion

were incurring the communities wrath for the added

financial burdens courts were imposing. The

concern, doubtless advanced in complete good faith,

is a serious one.” (Appendix (i) at page 8a).

Mr. Atkins also told the Court that these practices were

giving desegregation a bad name

The fact that according to Mr. Atkins the practice of

school boards throughout the country operating under

desegregation decrees are engaged in a similar practice

to that of the respondent school board demonstrates the

importance of this case.

The school board in this case sought a sum of

$156.4 Million. The associate superintendent of schools,

Dr. Claude Clapp, testified that “in preparing” his

budget estimate; he received the assistance of the

Board's “Budget Analysts’’ (A. 1081-2).' However, the

Board’s request to the Court was not based on the

Board’s Budget Analysts’ recommended total Budget of

$152.6 Million and O & M Budget of $150.5 Million

(Exhibit 808-A. 1402, 1072-3), but, rather, on Counsel

McCutcheon’s instruction that the O & M request should

be $156.5 Million (A. 1411)—or $6 Million greater than

the Board’s Budget Analysts’ O & M Budget

recommendation:

“Q. Did you arrive at this $156.5 Million as a

result of an instruction by Counsel on or about June

1, 1982, to prepare a rock bottom budget request?

A. No, that was not the instruction I received.

X references are to pages of the Joint Appendix before the Court of

Appeals.

7 * 8

4 .

Nn 1

—

Q. What was his instruction?

A. The instruction I received was to prepare a

document which would total $156 Million dollars.

Q. Who gave you the figure, Mr. McCutcheon?

A. The was developed—was really the

product of a discussion between Mr. McCutcheon

and me. (A. 1080). (Emphasis added.)

The Court of Appeals’ opinion is difficult to

understand. The opinion departs from the oft-repeated

rule in injunction cases, especially the mandatory

injunction cases, which holds that the proof must be

clear and convincing. Instead, the Court of Appeals

stated that the proof in this case was ‘marginally

sufficient for us to conclude that the Court acted within

its discretion in ordering an additional appropriation of

$7.4 Million. (Emphasis added).

The Court made no findings of desegregation necessity to

justify the mandatory injunction.

“Specially” stated and specific Findings of Fact

were required to be made by the Court, both to FRCP

Rule 52(a) and FRCP Rule 65(d), because this matter was

tried to the Court without a jury, because it was a

mandatory injunction.

FRCP Rule 52(a), entitled Findings by the Court,

Effect. required that the District Court “specially ...

set forth the findings of fact ... which constitute the

grounds of its action.”

FRCP Rule 65(d), entitled ‘“‘Injections., Form and

Scope. required that the District Court, in granting

an injunction to “set forth the reasons for its issuance.”

(See Pasadena City Board of Education vs. Spangler,

427 U.S. 424, 49 L. Ed. 2d 599).

The order made in the course of this ongoing school

desegregation case clearly granted a mandatory

injunction”. Reed v. Cleveland Board of Education, 581

F.2d 570; See also Oliver v. Kalamazoo Board of

Education, 640 F. 2d 782, 787 (6th Cir. 1980).

The District Court made no computation or finding

with respect to the arnount of money needed in the 1982-3

school year to comply with any of the desegregation

orders under which the School Board was operating (A.

1322). It had no evidence on which to do so because the

Board had not made any such determination or

computations. The Court simply said that:

“It is evident from the record that the Board will

need far more funds to operate the schools and carry

on the court’s desegregation order than it had

available last year. (A. 1310; Emphasis supplied).

This is hard to explain since everyone admits that the

Board was in full compliance with all desegregation

orders in 1981-82, the year before (A. 249, 999, 1009-10).

For 1982-83, the Board’s requirements were less, since

two schools had been closed, and the Board projected

1185 (2.5%) less pupils for 1982-83 (A. 1091, 1088, 136,

1368, 197, 311-2).

The District Judge made no finding as to the amount

of additional funds required for desegregation (A. 1310,

1321-2, 1323). He cited Oliver v. Kalamazoo Board of

Education, 640 F. 2d 782, 787 (6th Cir. 1980), but in that

case the court identified the order and the amount the

defendant school board was directed to pay experts

whom the court had appointed.

However, in the case at Bar, both the Circuit Court,

and the District Judge ignored the rule of the cases that

a mandatory injunction should not be granted where the

plaintiff's proof is “meager and of a general character”

(Moor v. Texas and New Orleans Railroad Company, 296

U.S. 101, 80 L.Ed. 509). The finding of the District

Judge was limited to general order that the City make

available an additional $7,400,000 to the Board on or

before June 30, 1983” (A. 1310).’

The meager and general character of the Board

Superintendent Reville’s testimony was as follows:

“Q. Well, let me ask this then, does every dollar

referred to in this budget request or estimate, this

brown covered paper, relate to desegregation?

A. Yes.” (A. 954).

Q. All right, Then without desegregation what

portion of it would you spend, what portion of the

ary mentioned in this budget estimate would you

spen

A. I don't know, because we are under

desegregation orders, which encompasses the entire

school system, so I don’t know what money I would

spend if it were—if we did not have a desegregation

order or how we would spend it, perhaps that is a

better answer, how we would spend it if there were

not a desegregation order.

Q. Well, you would have to do some painting,

wouldn’t you?

A. Yes.

Q. You would have to do some plumbing?

A. Yes.

Q. That is in the absence of the desegregation

order?

A. Yes.

Q. You would have to do—have some teachers,

wouldn’t you?

A. Yes.

Q. You would have to have some teachers aides?

A. Yes.

Q. You would have a whole host of expenses,

would you not? |

A. Yes.

Q. Hundreds of thousands of dollars of them,

expenses, wouldn’t you?

A. Yes.

Q. But you can’t tell us what portion of this

budget relates to desegregation and what portion of

it would be necessary anyway in the absence of this

tion order?

A. No. (A. 954-5).

At this point the District Judge shoud have applied

his own pre-hearing ruling:

„ .. the burden shall be on the Board and the

tiffs to show that the requested additional

are ‘necessary to cure the effects of prior

{

(

8 ar,

“ *

——

unconstitutional school segregation.’ Oliver v.

Kalamazoo Board of Education, 640 F. 2d 782, 787

(6th Cir. 1980).“ (See Appendix (ii), page 21a).

Instead, the District Judge ignored his own prehearing

order as to the necessary standard of evidence that he

would require before he would grant a mandatory

injunction which would interfere with the City’s

legislative and executive functions.

Failure to link the request for funds to desegregation orders

was fatal to jurisdiction.

The Board takes the position that since the

desegregation was being attempted on a voluntary

basis, any and every expense which might possibly be

deemed to make attendance at the Buffalo schools more

attractive to the children and their parents must be

considered as related to desegregation (A. 247, 259,

348, 961). Under the Board’s theory of the case, if it took

busing in Rolls Royce cars to attract the children, so be

it. If it took freshly painted schoolhouses to attract

them, well and good (A. 259, 331).

The District Court was thinking clearly in its earlier

decision of June 30, 1982 where it Said:

With regard to the instant motion, the Board may

be correct that it will be unable to provide adequate

education to the students with the funds

ted. But this is not a sufficient reason for

court intervention. (Appendix (ii), p. 21a).

Education, admitted that the Board was trying to

upgrade the quality of education, and reduce the

pupil/teacher ratio (A. 958-60, 348, 869, 942-3; Cf A.

970-987).

“Separation of Powers” and State's Rights” prohibit any

direction to fund non-desegregational expenses.

The District Court in its preliminary June 30, 1982

decision said that only endeavors of desegregational

necessity could justify the Court’s intervention (A. 215).

Why it changed its mind, and reversed itself in its

August 27, 1982 decision, we do not know.

What we do know is that if a federal District Court is

permitted so to interfere with the completed democratic

budgetary process cf a pclitical subdivision of a State,

there is no way to limit the expenditures it could order a

municipality to make to its School Board.

Both the “Separation of Powers’’ concept of the

Constitution (Articles I, II and III), and the “State's

Rights Doctrine (Amendments IX and X), as well as

Amendments V and XIV, Section 1, contra-indicate such

interference, and prohibit an unjustified attempt to

usurp a State’s budgeting process (Myers v. U.S., 272

U.S. 52).

Especially here, should the Court not have intervened.

The budgeting process had been completed, the taxes

spread, the tax bills sent out, and the taxes paid—all

before the Court's intervention.

Even more so in this case, should the District Judge

refrain from intervening where a palatable, and

prearranged alternative exists—the Board negotiated an

agreement with its teachers that class size could be

increased if budgetary reasons require it (See Appendix

(iv), p. 85a; R. 38— Ex. 23; A. 188-9). A change of the

R. references are to items of the Record on Appeal filed with the

Court of Appeals.

8 1 enn

„ rag 2 n 2

pupil/teacher ratio from 15/1 to 16/1 could admittedly

save $9 Million—or more than the $7.4 Million which the

Court awarded—and there was no evidence that this

would interfere with desegregation (A. 970-1, 1188-91,

978-87).

The School Board already was in full compliance with all

desegregation orders.

The Board concedes, in fact asserts, that it was in

compliance with the Court’s orders with respect to

desegregation for the school year 1981-82 (A. 249, 999,

1009-10). For the year 1981-82 the Board requested a

budget of $159.8 Million, which it later agreed to reduce

to $142,742,603, which included 82.1 Million added by

stipulated order of the Court dated August 14, 1981 (A.

81, 131, 1296). This consisted of an O & M 1981-82

budget of $141,242,603.00 and capital exempt budget of

$1,500,000.00 (A. 1391).

Moreover, the Board wound up with a surplus for the

1981-82 school year ended June 30, 1982, and set out to

eliminate the surplus by transfers, by advance

encumbrances, and by overpurchasing. Whatever, this

llth hour activity moved assets into 1982-83, and

reduced its 1982-83 requirements (A. 1017-19, 1075-9,

1137, 1386).

Thus, the Board put desegregation programs into

effect, and paid for them, in 1981-82, and ended with «

surplus on an O & M Budget of $142.1 Million.

The District Court, by approving the August 14, 1981

settlement which added $1.987 Million to the Board’s

O & M Budget for 1981-82, judicially approved the

adequacy of the integration funding for 1981-82. That the

Court’s 1981-82 Budget was more than ample, was

demonstrated by the large 1981-82 surplus, which the

Board had to dissipate by transfers into 1982-83 (A.

1017-19, 1078-9, 1386; Exs. 810 & 799).“

The direction for additional funds ignored the threshold

jurisdictional requirement of desegregational necessity.

A basic reason why the Board's application should not

have been considered, and why the District Court lacked

jurisdiction, is that the Board's own sworn estimates of

its increased needs to continue existing integration

programs in 1982-83 (Appendix (iv), pp. 69a-8la), were

substantially less than the Board's needs in the previous

year, 1981-82, when it had to commence certain of these

integration programs (See 1981-82 application, Exhibit

821; A. 27).

The City’s 1981-82 O & M appropriation (as increased

by $1.987 Million by this Court’s order of August 14,

1981 based on the stipulation of the parties) of

$141,242,603, enabled the Board to meet all of the

Court’s integration orders (A. 249, 999, 1009, 1296, 218,

200, 106-11). The Board's increased requests for

integration expenses for 1982-83 was only $2,412,723, or

$3,983,673 including handicapped. The Board's request

for increased integration expenses, being far less than the

in fact take action in the latter part of May, and in June, 1982, to

up the surplus (A. 1017-9). The District Judge refused to consider

the hearing,

278; Cf. 1323).

City's $7.9 Million appropriation increase for 1982-83, was

below the jurisdictional threshold for this Court's

intervention. The Chart at page 86a of Appendix (iv)

illustrates this lack of threshold jurisdictional findings.

For the year 1982-83, there were no new desegregation

programs (A. 218, 200, 106-9, 111). Additionally, two

schools had been closed and the pupil registration had

declined by 2.5% or 1185 pupils less (A. 1091, 1088, 136,

197, 1368, 311-2). Nevertheless, the Board, in preparing

its budget estimates for 1982-83, did not take these

decreases into account (A. 1091, 1088, 182). Instead, it

requested $162.5 Million, or $10 Million more than the

Board’s own Budget Analysts recommended for 1982-83

(A. 1067, 1402); and $20 Million more than its 1981-82

budget on which it realized a surplus.’ N

The City's appropriation for 1982-83 for the schools

amounted to $150,629,822, or approximately $8 Million

more than the 1981-82 budget of $142.7 Million. The

Board admitted that the 1981-82 appropriation

adequately funded all court-ordered desegregation

programs. The 1982-83 appropriation was 92.8% of the

Board’s request, within the range that had been followed

in previous years (Ex. 772; A. 448-9, 489). The Board's

document Trends in School Support (Exhibit 805, A.

1391) demonstrated, and Dr. Clapp admitted that the

School’s percentage of City Revenues steadily increased

from 1978 to date (A. 1060—plus $629,822). '

* For that matter, the Board never made a line or operating budget

for the $156.5 Million which it requested from the Court—and,

For 1982-83, the Board’s requirements for integration

were fully met by the City’s O & M appropriation of

$149,129,822. The reason for this was simple—the City

appropriated $7.9 Million more to the Board for 1982-83,

than it did for 1981-82, while the Board requested only $4

Million additional ($2.4 Million additional if handicapped

pupils are excluded) for increased integration expenses

for 1982-83 (A. 107-11).

Thus the increase in the City’s 1982-83 appropriation

was far in excess of the $2.4 Million increase that the

Board requested for integration-related expenses. It is

clear that other items, such as replacement for ESAA

funds, etc. were not part of the Board’s application (A.

108 412"), and should not have been considered by

either the District Court or the Court of Appeals

(Appendix (i), p. 13a).

oa:

Conflict with the Eighth Circuit's Order in Liddell vs. City of St.

Louis.

Certiorari should be granted because of an existing

partial conflict between an order of the Eighth Circuit in

Liddell vs. City of St. Louis, et al, (9/13/83) and the

Second Circuit’s decision in the case at Bar, and a

potential further conflict.

The Eighth Circuit's order in the Liddell case was on an

application for a stay of District Court orders requiring

the defendants to raise additional funds for the School

Board by increased property taxes and sale of bonds.

The Eighth Circuit order of September 13, 1982 denied in

part, and granted in part, the application for a stay.

The Eighth Circuit cited the timing of the

applications” as a reason for not exercising its

“discretion in favor of issuing a stay”, and noted that

“the school districts have already begun to implement

the voluntary plan-

However, the Eighth Circuit did stay: further

implementation of the plan after the date of issuance of

this (its) order: further consideration or action on any

alternative measure to meet the capital needs of the City

Board with respect to desegregation in the event the

bond issue is not approved: and, the issuance of any

order increasing the City Board’s tax rate until further

order of this (the) Court.”

While the Eighth Circuit was motivated by the timing

of the application to deny a complete stay; nevertheless

it effectively stayed implementation of the District

Court’s order.

The Second Circuit denied our motion for a stay and

affirmed the District Court's order, however, it expressed

its concern with the District Court’s process:

“Should a dispute of this nature recur, we think it

will normally be helpful if those who seek a court

order for additional funding, and those who oppose

such an order, supply the District Court with

considerable detail reflecting the proposed

expenditures in the absence of the additional funds

claimed to be needed. (Appendix (i), pp. 12a-13a).

Presently there exists a partial conflict between the

Eighth Circuit’s order of September 13, 1982 in the

Liddell case, and the Second Circuit's decision of July 17,

1983 in the case at bar.

The Eighth Circuit stated that it would hear the Liddell

case en banc on the merits in November (Appendix (vi), p.

10la). Shortly thereafter, a decision can be expected

which may be more sharply in conflict with the Second

Circuit’s decision in the instant case.

Counsel for the City of St. Louis has informed

Petitioners herein that the City may file an amicus curiae

brief on the present Petition for Certiorari, and that it

will file a petition for writ of certiorari in the event of an

unfavorable decision from the Eighth Circuit.

The District Court ordered an interdistriet remedy for an

“intradistrict” violation. .

The District Court’s order directed Petitioners to

appropriate additional tax revenues to the School Board

to finance an extravagant, and unproven, Voluntary

desegregation plan costing millions of dollars more than

normally required.

The extra millions of dollars were to be used to

entice or lure suburban non-district students into the

City district, at the expense of the City’s taxpayers and

residents. This actually is a reverse twist of the normally

prohibited interdistrict remedy for an “‘intradistrict”’

violation (Swan vs. Charlotte-Mecklenburg Bd./Ed., 402

US 1, and Milliken us. Bradley, 418 US 717).

The Buffalo City residents and taxpayers did not

create the wrong. Further, Petitioner’s predecessor as

Mayor was exonerated of any fault. Rather, the respon-

sibility was that of the Respondent School Board itself.

Now, to escape from the consequences of its wrong,

the School Board is asking the City’s residents and tax-

payers to pay for an extravagant, and unproven, volun-

tary interdistrict remedy, which may, or may not, pan

out.

Conclusion

For the foregoing reasons, Petitioners submit that the

Supreme Court of the United States should issue a Writ

of Certiorari to the United States Court of Appeals for

the Second Circuit to review, reverse and remand its

decision affirming the District Court’s order which

directed the City Defendants to grant an additional

appropriation of $7.4 Million to the Respondent School

Board.

Respectfully submitted,

FRANK G. RAICHLE, ESQ.

Designated Counsel of Record; and

ARNOLD WEISS, ESQ.

' Attorneys for Petitioners

1400 Main Place Tower

Buffalo, New York 14202

(716) 852-7587

APPENDIX (i)

Opinion of the United States Court of Appeals for

the Second Circuit dated and filed July 22, 1983,

and reported at 712 F.2d 809

George ARTHUR, et al,

Plaintiffs-Appellees,

and

Community Advisory Board for Bilingual

Education of Buffalo, et al,

Plaintiffs-Intervenors-Appellees,

Ewald P. NYQUIST, Individually and as

Commissioner of Education of the State

of New York, et al.,

Defendants,

James D. Griffin, Mayor of the City of

Buffalo, et al,

Defendants-Appellants.

No. 1037, Docket 82-7690.

United States Court of Appeals,

Second Circuit.

Argued Apri 6, 1983.

Decided July 22, 1983.

Appeal was taken from an order of the United States

District Court for the Western District of New York,

John T. Curtin, Chief Judge, 547 F.Supp. 468, directing

mayor and common council to appropriate an additional

APPENDIX (i)—Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

7.4 million to enable board of education to comply with

court-ordered public school desegregation plan. The

Court of Appeais, Newman, Circuit Judge, held that: (1)

district court was within its discretion in ordering the

additional appropriation, notwithstanding that court did

not require board to prepare line-by-line budget

indicating precisely how it would spend amount

originally appropriated, but (2) better practice is to order

board to document how it would expect to spend level of

funding it asserts is inadequate.

Affirmed.

J. Edmund De Castro, Jr., Buffalo, N.Y. (Jaeckle,

Fleischmann & Mugel, Buffalo, N.Y., on the brief), for

plaintiff-intervenor-appellee Community Advisory Bd. of

Bilingual Educ. of Buffalo.

Bruce A. Goldstein, Gerald P. Seipp, and Serotte,

Reich & Goldstein, Buffalo, N.Y., submitted a brief for

plaintiff-intervenors handicapped children.

Frank G. Raichle, Buffalo, N. V., (Arnold Weiss,

Raichle, Banning, Weiss & Halpern, Buffalo, N.Y., on the

brief), for defendants-appellants Mayor and Common

Council of Buffalo.

Thomas I. Atkins, Gen. Counsel, N. A. A. C. P.,

Brooklyn, N.Y. (Jay, Klaif & Morrison, Buffalo, N. V., on

the brief), for plaintiffs-appellees.

Aubrey V. McCutcheon, Jr., Sp. Counsel to Corp.

Counsel, Buffalo, N.Y. (James J. McLoughlin, Acting

Corp. Counsel, William E. Carey, Asst. Corp. Counsel,

Buffalo, N.Y., on the brief), for defendant-appellee

Buffalo Bd. of Educ.

APPENDIX (i)—Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

Before KAUFMAN, TIMBERS and NEWMAN,

Circuit Judges.

NEWMAN, Circuit Judge:

This appeal and a companion matter decided this day,

No. 82-7802, concern the propriety of remedies ordered

by the District Court for the Western District of New

York (John T. Curtin, Chief Judge) as part of continuing

efforts to eliminate the deliberate racial segregation

previously found to have existed in the public school

system of Buffalo, New York. In this appeal the Mayor

and the Common Council of Buffalo (the City

defendants’’) appeal from Chief Judge Curtin’s August

27, 1982, ordef requiring the City defendants to provide

the Buffalo Board of Education $7,400,000 prior to June

30, 1983, in addition to the $150,629,822 appropriated by

the City defendants to the Board for the 1982-83 school

year. Though we believe a more detailed justification for

the additional funds could usefully have been required by

the District Court and should be required in the event

that additional sums beyond appropriated funds are

sought for subsequent school years, we affirm Chief

Judge Curtin’s order.

In 1976 the Buffalo public school system was found to

have been deliberately segregated along racial lines, and

liability for this unconstitutional conduct was imposed

upon the then current members of the Board of

Education and the Common Council, and the then

incumbent mayor. Arthur v. Nyquist, 415 F.Supp. 904

(W. D. N. V. 1976), aff'd in relevant part, 572-F.2d 134 (2d

Cir.), cert. denied sub nom. Manch v. Arthur, 489 U.S.

860, 99 S.Ct. 179, 58 L.Ed.2d 169 (1978). Implementation

APPENDIX fi- Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

of a remedy has proceeded in stages as Chief Judge

Curtin has wisely imposed upon the School Board the

primary responsibility to fashion means of eliminating all

vestiges of a segregated system of public education. In

the 1976-77 school year, Phase I was implemented with

the closing of ten schools and the opening of two magnet

schools. Phase II, implemented at the start of the 1977-

78 school year, called for the opening of eight more

magnet schools. In June 1979 the District Court ordered

complete desegregation of the entire school system and

directed the Board to devise a system-wide remedy. The

objective was minority enrollment in each school of not

less than 30 percent and not more than 55 percent. The

Board responded with Phase III in November 1979. The

District Court’s approval of that plan resulted in a

remand by this Court for more detailed findings as to the

adequacy of Phase III. Arthur v. Nyquist, 636 F.2d 905

(2d Cir. 1981). That remand led to the development by

the Board of a plan that came to be known as Phase

IIIx, which the District Court approved in May 1981.

Arthur v. Nyquist, 514 F.Supp. 1133 (W.D.N.Y.1981),

aff'd mem., 661 F.2d 907 (2d Cir. 1981), cert. denied sub

nom. Griffin v. Arthur, 454 U.S. 1085, 102 S.Ct. 643, 70

L.Ed.2d 621 (1981). The plan, which went into effect in

September 1981, included a combination of magnet

schools, early childhood centers, and special academies;

pairing and clustering of schools; and a general

upgrading of the school system to provide appropriate

educational opportunities for disadvantaged minority

students and to retain White students in the school

system.

APPENDIX (i Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

The Buffalo school system has now completed the

second year of the implementation of Phase IIIx. In view

of Chief Judge Curtin the plan is achieving notable

success in reaching the goal of a completely desegregated

school system, and it is doing so with a minimum of

mandatory pupil asignments or bussing. The Board

chose to meet the targeted minority enrollment

percentages by establishing innovative programs

throughout the system and creating special schools so

that a desegregated student population would be

distributed throughout Buffalo’s schools primarily as a

result of the parents’ preference for the schools and

programs that the Board was providing. Though a plan

of this sort has obvious advantages to a program that

depends largely on extensive bussing, the

implementation of such a plan requires considerable

amounts of money.

The Board of Education is wholly dependent on the

Mayor and the Common Council of Buffalo for its basic

appropriation. It has no taxing authority of its own. The

Board receives state and federal aid and is obliged to

conform its programs to various requirements imposed

by state and federal law. Like most communities where

school authorities lack taxing power, Buffalo has

experienced annual budget battles when the time has

come for the Board to submit its budget requests to the

Mayor and the Common Council. In the 1981-82 school

year, the added burdens imposed on the Board by the

requirements of Phase IIIx placed an extra strain on the

budgeting process. That year the plaintiffs in the

desegregation suit returned to court to seek additional

APPENDIX (i- Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

funding from the City defendants to enable the Board to

implement the court-approved remedy. Fortunately. the

parties resolved their differences, agreed to an additional

appropriation of $2.1 million, and Chief Judge Curtin

entered an order by consent for this additional sum. The

current dispute has arisen because agreement could not

be reached on the requisite funding for the 1982-83

school year.

For the current school year, the Board submitted to

the City defendants its annual budget estimates calling

for an appropriation of $162,362,979. Ultimately the City

defendants appropriated $150,629,822, an increase of

$7.9 million over the funds appropriated for the previous

school year. Of sums appropriated for 1982-83

$149,129,822 was for the basic operations and

maintenance budget, and $1,500,000 was for capital

needs. The Board then determined that it could not

implement Phase IIIx at the level of funding

appropriated by the City defendants. Though it receded

from its initial request of $162,362,979, of which

$160,241,029 had been sought for operations and

maintenance, it nevertheless sought to increase the

operations and maintenance funds by $7.4 million over

the appropriated amount. When compromise proved

unattainable, the plaintiffs initiated the current round of

litigation to require the City defendants to provide the

Board with the additional $7.4 million.

The hearing on the plaintiffs’ request for additional

funding placed the District Court is an unenviable

APPENDIX ſi - Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

eliminate a constitutional violation. On the other hand,

he also recognized the inadvisability of intruding

excessively into the details of the administration of the

Buffalo public school system. The result was a hearing

marked both by presentation of considerable detail

concerning school budgeting and by the District Court’s

reliance upon the good faith of the officials of the Board

of Education charged with the responsibility for

implementing the school desegregation plan. The Court

heard and fully credited the assertions of Eugene T.

Reville, the superintendent of Buffalo’s public schools,

and of Joseph T. Murray, the Associate Superintendent

with the major responsibility for implementing the

desegregation plan, that the school system could not

comply with Phase IIIx without the additional $7.4

million. The principal evidence in support of this

conclusion was Murray’s presentation of a list of cuts the

school system would be forced to make from its

requested $162 million budget estimate if it were obliged

to live with the $150.6 million appropriated by the City

defendants. Included on this list were several items that

Chief Judge Curtin found were of special significance to

the success of the desegregation efforts, notably all of

the teaching positions required to staff the kindergarten

and pre-kindergarten programs. The District Court also

received and credited testimony concerning the

significance of cuts in federal funding and the imposition

of new and costly obligations upon the Buffalo school

system in order to comply with federal and state law

concerning the education of handicapped children and

with federal court decrees enforcing those statutory

obligations. Ultimately Chief Judge Curtin explained in a

;

APPENDIX (i- Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

comprehensive opinion his reasons for concluding that

the City defendants should be ordered to appropriate an

additional $7.4 million to the Board. Arthur v. Nyquist,

547 F.Supp. 468 (W.D.N.Y. 1982). From that ruling the

City defendants appeal.

An unusual aspect of the case in its appellate stage is

the position expressed at oral argument by counsel for

the plaintiffs. Thomas I. Atkins, Esq., who has

represented the National Association for the

Advancement of Colored People (NAACP) in more than

thirty school desegregation cases, declined to defend the

District Court’s order, though he had signed plaintiffs’

brief urging affirmance. In his view the District Court

had failed to make sufficiently detailed findings to

permit a determination as to whether or not the full

amount of $7.4 million in additional funding was needed.

Perhaps reflecting more the institutional position of the

NAACP than the litigating position of the plaintiff

students, Atkins decried the attempts of school boards

throughout the country, operating under desegregation

decrees, to secure additional funding ostensibly but, in

his view, not realistically needed to carry out court-

ordered remedies. In Atkins’ view, school boards were

pursuing their private agendas of unmet educational

needs, while those advancing the cause of school

desegregation were incurring the communities’ wrath for

the added financial burdens courts were imposing. The

concern, doubtless advanced in complete good faith, is a

serious one. We are no more disposed to dismiss it

On May 27, 1983, we denied the appellants’ motion for a stay of the

obligation to pay the additional $7.4 million prior to June 30, 1983.

APPENDIX (i)—Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

lightly than we are to permit its undeniable emotional

force to sway our appraisal of what the District Court

has ordered in the particular case before us. To that task

we now turn.

The authority of the District Court to order the

implementation of its remedial plan, including Phase

IIIx, has already been adjudicated and is not in issue on

this appeal. Nor is there any dispute that a district court

may require the expenditure of funds to implement a

desegregation remedy. Milliken v. Bradley, 433 U.S. 267,

97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). Instead we face the

narrower yet more elusive issue whether the Court

properly determined the amount of additional money

needed to implement the Court’s remedy. That issue

inevitably involves two related though conceptually

distinct questions. The first is whether additional funds

have been added only to the extent needed to remedy

segregation or to the further and impermissible extent of

accomplishing a general improvement in the quality of

the local school system unrelated to remedying the

effects of segregation. The second is whether the District

Court’s findings provide an adequate basis upon which

an appellate court can determine that funds have been

added only for a permissible remedial purpose.

This case presents those questions in a difficult

context because of the broad scope of the District

Court’s remedy, which, in turn, reflects the School

Board’s commendable preference for relying primarily on

voluntary pupil assignments rather than mandatory

assignments with extensive bussing. Despite the obvious

objections to it, bussing at least has the virtue of being a

10a

APPENDIX (i)—Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

device that is easily tested to determine whether its

scope exceeds the requirements of a desegregation

remedy and, once its proper scope is ascertained, its

incremental cost is subject to minimal dispute. A

voluntary plan like Phase IIIx, however, which depends

for its success on many factors including the drawing

power of the magnet schools, the quality of remedial and

compensatory education offered for the benefit of but not

limited to minority students, and, to some extent, the

attractiveness of the school system generally to majority

students who might desert it, inevitably blurs the line

between funds the School Board needs to comply with

the Court’s remedy and funds it would like to have to

improve the discharge of its general educational

responsibilities. In determining an appropriate level of

funding for a desegregation remedy like the Buffalo plan,

a court is entitled to require money for programs that

materially aid the success of the overall desegregation

effort. A program of that sort is not disqualified for

needed funding simply because its inclusion improves

the overall quality of the school system. At the same

time a court must be alert not to permit a school board

to use a court’s broad power to remedy constitutional

violations as a means of upgrading an educational

system in ways only remotely related to desegregation.

Striking the balance necessarily requires considerable

deference by a district court to the good faith

representations of the school authorities, cf. Youngberg

v. Romeo, 457 U.S. 307, 102 S.Ct. 2 52. 2461-62, 73

L.Ed.2d 28 {1982), and by a reviewing court to the

knowledgeable assessment of a district judge intimately

familiar with local conditions.

lla

APPENDIX (i)—Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, und reported at 712 F.2d 809

Applying those considerations to this case, we

conclude that the District Court’s findings, assessed

against the record as a whole, are marginally sufficient

for us to conclude that the Court acted within its

discretion in ordering an additional appropriation of $7.4

million. Chief Judge Curtin was entitled to credit the

testimony of the responsible school officials concerning

the cuts that would have to be made if the Board of

Education were obliged to operate the school system at

the level of funding proposed by the City defendants.

Without doubt, loss of the positions and programs

identified by Associate Superintendent Murray would

have seriously impaired the implementation of Phase

IIIx. Inevitably, in consideration of an overall school

budget there is room for honest difference of opinion as

to which items a board of education ought to cut in the

event of a reduction in its budget request. The City

defendants contend that the Board could have made cuts

elsewhere and thereby lived within the City’s original

appropriation without sacrificing the items on Murray's

list of proposed cuts. Our review of this contention would

have been aided by a sharpening of the dispute in the

District Court. It is not clear precisely what the City

defendants believe a line-item budget for the School

Board would have looked like if the Board had operated

on the original appropriation without making the cuts

identified by Murray.

In the District Court the City defendants contended

that it was the responsibility of the Board to prepare a

line-by-line budget indicating precisely how it would

spend the amount originally appropriated by the City.

12a

APPENDIX (i- Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

Chief Judge Curtin declined to impose this requirement,

fearing that it would accord the Mayor and the Common

Council ‘‘greater control over the education system than

is contemplated under the State law. which does not

permit the City to dictate to the Board” the manner of

spending appropriated funds. 547 F.Supp. at 482. See

N.Y. Education Law 52576 (McKinney 1981). We do not

share the District Court’s apprehension on this point.

When the School Board seeks the aid of the District

Court in ordering the appropriation of additional funds

to comply with a court-ordered remedy, it will normally

be helpful to see precisely how the Board would expect

to spend the level of funding it asserts is inadequate.

Such a presentation would reveal not only the items the

Board expects to drop from its initial budget estimate,

but also the items it expects to retain. No doubt such a

presentation would afford the City officials an

opportunity to level specific criticisms at various

expenditures the Board proposes to make, but such

criticisms are not the equivalent of a power to dictate

the manner of spending. Instead, they simply afford the

District Court, and a reviewing court, a focused

opportunity to determine how much of the Board’s

additional request is justified. Whether or not the Board

‘persuades the Court that all or a portion of the requested

funds are needed, it is not bound to accede to the City’s

objections concerning specific expenditure items.

Should a dispute of this nature recur, we think it will

normally be helpful if those who seek a court order for

additional funding, and those who oppose such an or er.

supply the District Court with considerable detail

13a

APPENDIX (i)—Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

reflecting the proposed expenditures in the absence of

the additional funds claimed to be needed. Faced with

such presentations, the District Court may find it useful

to enlist the aid of a neutral auditor, experienced in

school budgeting, to assist in analysis of the figures

presented.

The absence of such detail in this case, however, does

not preclude us from upholding the District Court’s

order. Associate Superintendent Murray was very

specific in detailing the cuts he believed would have to

be made without the added funds. Undoubtedly some

dollars could have been cut elsewhere in the school

budget without impairing the desegregation remedy.

But, by the same token, some of the dollars that the

Board sought in its initial $162 million budget request

and failed to receive, even with the added $7.4 million,

undoubtedly would have been useful for the

implementation of the plan. Absolute dollar precision

cannot be expected in such matters. We cannot say that

the District Court erred in accepting the Board’s scaled-

down estimate that $7.4 million additional funds were

needed. Even with this addition, the Board’s budget was

approximately $5 million less than its $162 million

request. Moreover, that budget request did not seek any

additional funds to replace the reduction in federal funds.

Chief Judge Curtin found that the Board’s federal

funding would decrease by more than $10 million. And at

the same time that the Board was receiving less federal

funds, it was obliged to expend additional money to

comply with obligations for the education of handicapped

and Spanish-speaking children. These developments

l4a

APPENDIX - Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

support the District Court’s conclusion that the City’s

initial appropriation, though exceeding the 1981-82

appropriation by $7.7 million,“ would not enable the

Beard satisfactorily to proceed with implementation of

Phase IIIX.

Understandably the City defendants place special

emphasis on an affidavit submitted by Murray in which

he estimated that direct expenditures in implementation

of the desegregation program” would be $18,147,725 in

1982-83, an increase of $2,084,247 over the comparable

figure for 1981-82. The City defendants contend that

their $7.7 million increase for the Board in 1982-83 would

more than cover this increase in direct desegregation

costs. An exhibit to Murray’s affidavit identifies the

following as the components of the $18 million direct

cost estimate: 145 elementary school teachers, 174

elementary school teacher aides, 58 high school teachers,

equipment and supplies at the Early Childhood Centers

and the special Academies, some plant expenses, and

some bussing expenses. It is obvious from Chief Judge

Curtin’s opinion that he did not consider these items to

be the only costs that the Board was incurring to comply

with Phase IIIx. Though he recognized that he could

not intervene if the only effect of budget cuts would be

to impair the quality of public school education in

Buffalo, 547 F.Supp. at 473, he recognized that it was

vital to maintain and upgrade a variety of programs that

* This $7.7 million increase resulted entirely from an increase in state

aid of $8.6 million, offset by ‘other adjustments. The City’s tax

revenues devoted to the Board of Education under the City’s

proposed appropriation would actually have decreased by $.5 million.

—

15a

APPENDIX i Opinion of the United States Court of

Appeals for the Second Circuit dated and filed July 22,

1983, and reported at 712 F.2d 809

had been initiated to make the desegregation plan

succeed. In addition to the magnet schools, he mentioned

specifically the full-day kindergarten and pre-

kindergarten classes. We agree with Chief Judge Curtin’s

implicit conclusion that the increase referred to in

Murray’s affidavit was only part of the increase needed

to continue desegregation of the Buffalo school system.

In sum, we recognize, as did Chief Judge Curtin, that

it is more costly to achieve desegregation through a plan

that relies heavily on the voluntary preference of parents

to send their children, White and Black, to high quality

schools than simply to pay for the bussing of children to

distant schools. The Buffalo Board of Education

deserves commendation for the course it is pursuing, and

the District Court has not erred in determining that in

1982-83 it needed an additional $7.4 million to continue

its progress. We earnestly hope the parties will display

the utmost good faith and cooperation to minimize, and

preferably eliminate entirely, the need for District Court

intervention in future funding disputes.

The judgment of the District Court is affirmed.

16a

APPENDIX (ii)

Opinion of the United States Distriet Court for the

Western District of New York, per Curtin, Ch. J., dated

and entered June 30, 1982 (unreported), granting a

Hearing on request for additional funds

UNITED STATES DISTRICT COURT

Western District of New York

GEORGE ARTHUR, et al.,

Plaintiffs,

vs.

EWALD P. NYQUIST, et al.,

Defendants.

Civ-1972-325.

APPEARANCES:

JAY, KLAIF & MORRISON (DAVID G. JAY, ESQ.,

‘of Counsel), Buffalo, New York, for Plaintiffs.

JOSEPH P. McNAMARA, ESQ., Corporation Counsel

of the City of Buffalo [AUBREY McCUTCHEON,

ESQ., Special Counsel for the Buffalo Board of

Education, and RAICHLE, BANNING, WEISS &

HALPERN (FRANK G. RAICHLE, ESQ., and

ARNOLD WEISS, ESQ.), Special Counsel for Mayor

James D. Griffin and the Common Council of the City

of Buffalo], Buffalo, New York, for Mayor James D.

Griffin, Superintendent of Schools Eugene T. Reville,

The Board of Education, and the Common Council of

the City of Buffalo, Defendants.

17a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting a Hearing on request for

additional funds

JAECKLE, FLEISCHMANN & MUGEL (UJ.

EDMUND deCASTRO, JR., ESQ., of Counsel),

Buffalo, New York, for Plaintiff-Intervenor Puerto

Rican Legal Defense and Education Fund.

SEROTTE, HARASYM & REICH (Bruce A.

GOLDSTEIN, ESQ., of Counsel), Buffalo, New York,

for Plaintiff-Intervenor John Bushey.

LIPSITZ, GREEN, FAHRINGER, ROLL,

SCHULLER & JAMES (JOHN R. LoGALBO, ESQ.,

of Counsel), Buffalo, New York, for Intervenor Buffalo

Councii of Supervisors and Administrators.

At this time, the court must arbitrate a dispute

between two codefendants which threatens the academic

future of the children of this City and will affect every

resident.

On May 27, 1982, the plaintiffs in this ten-year-old

school desegregation action filed a motion requesting that

the defendants show cause why the Common Council

and the Mayor of the City of Buffalo [City defendants]

should not be directed to allocate sufficient funds to

their codefendant, the Buffalo Board of Education

[Board] to enable the Board to provide adequate

educational services and comply with the orders of this

court.

The City has appropriated the sum of $150,629,822 for

Board use during academic year 1982-83. Of this sum,

approximately $10,505,000 was conditioned upon receipt

18a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting a Hearing on request for

additional funds

by the City of increased State educational aid. The

legislative appropriation for the additional aid was

vetoed by the Governor of New York State. Unless the

gubernatorial veto is overridden by the New York State

legislature, the Board appropriation stands at

$140,124,822.

This figure was reached after the procedures set forth

in the Buffalo City Charter were followed. Pursuant to

the Charter’s budgetary process, the Mayor received

budget estimates from municipal departments and from

the Board pursuant to New York State Education Law

$2576.

The Board submitted its 1982-83 operating and

maintenance budget on February 1, 1982, requesting

$162,362,979. It was reviewed by the Mayor and his

staff, and a hearing was held by the Mayor in the

Common Council chambers in City Hall on February 10,

1982. The hearing was open to the public and was

attended by the top administrators of the Board.

After the hearing, the Mayor's staff again reviewed the

request and recommended a budget of $150,000,000,

which included the conditional sum of about $10,505,000

which the Board hopes to receive from the State. On

May 21, after conducting further hearings, the Buffalo

Common Council added $629,822, bringing the total to

$150,629,822. The roughly $12,000,000 gap between this

figure and the Board’s request led to the instant motion.

19a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting 1 Hearing on request for

additional funds

The case is an unusual one in that one of the

defendants, the Board, is allied with the plaintiffs

against its codefendant, the City. The positions of the

two sides are diametrically opposed.

During the negotiations which took place during the

last two weeks, the Board narrowed its request to

$156,500,000. The Board claims it cannot function with

less than this amount.

The City says that it cannot allocate any more funds.

In an affidavit filed by the Mayor dated June 10, 1982,

the City discusses its financial condition and the Mayor's

proposals to revitalize the City. These are cited as the

Mayor’s reasons for refusing to increase the Board’s

appropriation.

The plaintiffs and intervenors state that they are

unable, because of lack of resources and access to data,

to explain specifically the need for extra funds. They

seek a general order directing the City to allocate

“sufficient funds. In addition, the plaintiffs refer to

their pending motion of April 21, 1982. In that motion,

plaintiffs seek further desegregation of the Buffalo

Public School System. The plaintiffs urge the court to

consider the possibility of the additional funds necessary

for further desegregation in deciding the present motion.

These were the positions of the parties when the order

to show cause was filed and, after several meetings with

the court and several days of intense negotiations, they

remain unchanged. After six days of discussion, the

20a

APPENDIX li- Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting a Hearing on request for

additional funds

parties informed the court that they had reached an

impasse. The court therefore has no choice but to order

the parties to proceed to an evidentiary hearing.

At the outset, the court wishes to make clear that the

purpose of the hearing is limited, as is the court’s role in

this matter. There is a distinction between the

controversy between the Mayor and the Board and the

issue before this court.

The Mayor and the Board disagree regarding the

amount of funds necessary to provide an excellent

education for the school children of the City. Their dispute

pertains to school programs and day-to-day school

operations. The issue before this court is more narrow.

The court may be concerned only with the integration of

the schools and only has the power to intervene in the

controversy between the Board and the Mayor to the

extent necessary to ensure compliance with the orders of

this court and the orders of the United States Court of

Appeals for the Second Circuit. A direction to the City to

provide more funds can be made only if the Board and

the plaintiffs are able to persuade the court that the

failure to provide additional funds will interfere with

these orders.

The court has stated time and time again that the

primary responsibility for the schools is best left to the

education experts of the Board and its staff. So, too, are

funding disputes best settled among the parties within

the arena of the budgetary process. The court

2la

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting a Hearing on request for

additional funds

become involved in matters outside those which have

direct impact upon the desegregation orders.

An example of the court’s limited role is a controversy

which arose in this case a few years ago. At that time,

the Board was forced to cut back on various music and

art programs, due to a lack of funds. The court was

asked to issue an order directing the Board to reinstate

these programs. Notwithstanding that the Board’s action

was a serious blow to a good educational system, the

court refused to issue the order because the cuts in

programs had equal impact upon majority and minority

students.

With regard to the instant motion, the Board may be

correct that it will be unable to provide adequate

education to the students with the funds appropriated.

But this is not a sufficient reason for court intervention.

Instead, the burden shall be on the Board and the

plaintiffs to show that the requested additional funds are

necessary to cure the effects of prior unconstitutional

school desegregation.” Oliver v. Kalamazoo Board of

Education, 640 F.2d 782, 787 (6th Cir. 1980).

Although the court is powerless to act without such a

showing, we are, of course, deeply interested in the

quality of education of the City schools. As a constant

observer of the Buffalo Public Schools, the court is aware

that many improvements have been made in the School

system, and many programs which have been instituted

will result in additional improvements in the years ahead.

2 4

x 2

7 “ge *

ee K

een

areas eae”,

"eet

22a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting a Hearing on request for

additional funds

Standardized test scores have improved over the years.

There has been no massive flight of majority students

from the City schools, no violence or disruptions of any

kind. A recent newspaper report from the Chicago

Tribune quoted James Barnes, the Director of the

National Educational Strategic Center, which has

monitored desegregation programs throughout the

United States as saying: Buffalo is a model .... It has

got to be the best there is.

At a time when our community is suffering from a

number of problems, the progress in improvement in our

schools is something for all residents to be proud of.

But, as in any organization, much remains to be done. The

court cannot, of course, make a judgment at this time

whether the Board will be entitled to an order directing

additional funds after a hearing. But if the Board needs

but does not receive additional funds to provide a proper

education to the students in the Buffalo schools, the

court is fearful that the substantial progress which has

been made will be lost. This will certainly be detrimental

to students for many years to come and will be a serious

blow to the health and morale of our entire community.

Much is at stake in this controversy, and the court

cannot overemphasize the desirability of a prompt and

amicable settlement. For these reasons, the court urges

the parties to continue to talk, to be flexible, and to be

willing to think things out and compromise. In the

meantime, the evidentiary hearings shall go forward as

scheduled on July 1 and continue on July 2, 7, 8, and 9

if necessary.

23a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered June 30, 1982

(unreported), granting a Hearing on request for

additional funds

The court anticipates that the hearings shall be brief.

In view of the numerous prior proceedings in this case, it

will not be necessary for the parties to develop the

factual background at length.

The newly retained attorneys for the Mayor have

insisted that there be a line-by-line examination of the

Board’s request. Inquiry has been made, for example,

about cost of fuel, supplies, and various educational

programs. Given the opportunity which the Mayor and

his staff had throughout the budgetary process during

the year to receive this information, we shall not spend

an inordinate amount of time repeating the process.

Instead, the questioning of the witnesses shall be concise

and directed to the issue at bar. Because of the number

of cases awaiting trial on the court’s calendar, it may be

necessary to set strict time limits for both direct and

cross-examination.

It appears to the court that it would benefit all

concerned to have all of the pending issues involved in a

single proceeding. Plaintiffs’ position is that there are a

number of schools remaining outside the court's

guidelines which should be desegregated this fall. We

shall explore the plaintiffs’ motion for further

desegregation and the Board’s opposing arguments

during the evidentiary hearing. After the hearing, we

hope to be in a position to issue a final order, ending the

court’s role in Arthur v. Nyquist.

So ordered. JOHN T. CURTIN

United States District Judge

Dated: June 30, 1982

24a

APPENDIX (ii)

Opinion of the United States District Court for the

Western District of New York, per Curtin, Ch. J., dated

and entered August 27, 1982, and reported at 547 F.

Supp. 468

George ARTHUR, et al.,

Plaintiffs,

Ewald P. NYQUIST, et al.

Defendants.

No. Civ-1972-325C.

United States District Court,

W. D. New York.

Aug. 27, 1982.

Jay, Klaif & Morrison, Buffalo, N.Y., (David G. Jay,

Buffalo, N.Y., of counsel), for plaintiffs.

Aubrey McCutcheon, Sp. Counsel for the Buffalo Bd.

of Educ., Buffalo, N.Y., and William E. Carey, Asst.

Corp. Counsel, Buffalo, N.Y., for defendants

Superintendent of Schools Eugene T. Reville and The

Bd. of Educ.

Raichle, Banning, Weiss & Halpern, Buffalo, N.Y.

(Frank G. Raichle, and Arnold Weiss, Buffalo, N.Y., of

counsel), for defendants Mayor James D. Griffin and the

Common Council of the City of Buffalo.

25a

APPENDIX (ii Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Jaeckle, Fleischmann & Mugel, Buffalo, N.Y. (J.

Edmund deCastro, Jr., Buffalo, N.Y., of counsel), for

plaintiff-intervenor Community Advisory Bd. for

Bilingual Educ. of Buffalo.

Serotte, Harasym & Reich, Buffalo, N.Y. (Bruce A.

Goldstein, Buffalo, N. V., of counsel), for plaintiff -

intervenor John Bushey.

Bruce Fenwick, Buffalo, N.Y., for intervenor Buffalo

Teachers Federation.

Lipsitz, Green, Fahringer, Roll, Schuller & James,

Buffalo, N.Y. (John R. Logalbo, Buffalo, N. V., of

counsel), for intervenor Buffalo Council of Sup'rs and

Administrators.

CURTIN, Chief Judge.

In what threatens to become an annual ritual, the

Buffalo Board of Education {the Board] is forced to ask

this court to order its codefendants, the Mayor and the

Common Council of the City of Buffalo [City defendants],

to provide additional funds to the Board for

For the 1982-83 school year, the Board requested a

budget of $162,302,979. Pursuant to the budgetary

process of the City charter and section 2576 of the New

York State Education Law, the Mayor received this

request from the Board. The Mayor and his staff

reviewed the budget, held a public hearing, and

recommended that the estimate be reduced to

26a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

$150,000,000. After conducting additional public

hearings, the Common Council added $629,822, bringing

the total to $150,429,822. This is the sum currently

appropriated for Board use. Approximately $149,100,000

is to be used for Board operations and maintenance, and

the remainder for capital expenditures.

Under the law, the Board is financially dependent upon

the City for funds. The Board has since indi ated that it

could operate on a minimum budget of $156,500,000. The

Board cannot, however, make up the difference between

the amount it needs and the amount allocated in the

budget but must look to the City for adequate funding.

Because of the large gap in funds, plaintiffs filed a

motion requesting that the court order the City to

provide additional funds. Last year, the same dispute

arose regarding funds. On July 30, 1981, the Board filed

27a

APPENDIX ſii Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

In approaching the current controversy, some of the

history of this ten-year-old school desegregation case

should be kept in mind and bears repeating.

In April of 1976, the Buffalo Board of Education was

found to have engaged in deliberate and unconstitutional

segregation of the Buffalo Public School System [BPSS].

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

aff'd in part, rev'd in part, remanded in part, 573 F.2d

134 (2d Cir. 1978). After this finding of liability, the

court and the parties immediately set out to devise a fair

and effective program to remedy the effects of the prior

unconstitutional segregation. As early as May, 1976, the

court held hearings to help formulate a remedial plan.

Further hearings were held throughout the spring and

summer of 1976. From that time on, the court has had

numerous hearings and dozens upon dozens of meetings

with the parties to hammer out the details, to further

refine, and to set in motion an adequate plan for

desegregation.’

After the liability finding, the court ordered the Board

to-submit an initial plan for desegregation, and the

Board responded by coming forward with Phase I. This

plan closed ten schools in an effort to save money and to

integrate previously all-majority schools. In addition,

28a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

In September of 1977, Phase II was implemented.

Phase II included eight Magnet Schools. Phase II was

designed to insure that each school had at least 20

percent minority students in attendance.

In June of 1979, the court ordered that complete

desegregation take place. The court ordered the Board to

design a systemwide remedy and held that a school

would not be considered as desegregated and acceptable

to the court unless there was over 30 percent and under

55 percent minority population.

In November of 1979, the Board of Education

submitted a proposed Phase III plan. After the decision

of the United States Court of Appeals for the Second

Circuit was issued in January of 1981, see 636 F.2d 905

(1981), the court ordered the Board to comply with the

directives of the Second Circuit and establish a plan that

could be put into effect on an expedited basis. Phase III

thus became known as Phase IIIx, and its provisions

were put into effect a year earlier than originally

scheduled. This court approved the implementation of

Phase IIIx on May 14, 1981. 520 F.Supp. 961

(W.D.N.Y.1981), and the plan went into effect in

September, 1981.

The results of these efforts is the highly successful

Buffalo model of school desegregation. Under the direct

administration of Buffalo Board of Education Associate

Superintendent Joseph T. Murray and the supervision of

the Superintendent of the BPSS, Eugene T. Reville, the

system has implemented several innovative programs.

29a

APPENDIX ſii Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

These programs include the Magnet Schools, the Early

Childhood Centers, and the Academies.’ In addition, the

BPSS has utilized innovative concepts, such as

“clustering of schools, and feeder patterns, so that

children attending any one of a number of certain schools

in the lower grades will be sent to a specific high school,

thus insuring that at both levels the grades will be

integrated. Through implementation of these programs,

the BPSS has achieved a significant success, and the

programs themselves have been applauded by educators

throughout the country.

There are a number of examples of successfully integrated Magnet

Schools flourishing in the Buffalo Public School System. In many

instances, when some of these schools were first proposed, some

critics predicted that the schools would fail to forward the progress of

integration. Most have been successful from an integrational and an

educational point of view. Some examples follow:

Buffalo Traditional School, Grades 5-12, with about 900 students,

has 54.6 percent minority students. A very structured environment

exists in this school. Formed after the court's order of May 4, 1977.

In contrast is the Waterfrant School, with an open concept plan.

This school has grades pre-Kindergarten through 8, with an

enrollment of 885 students and 51.3 percent minority. It was formed

by the court's order of July 9, 1976.

Campus West School is operated in cooperation with the College

Learning Laboratory of the State University College at Buffalo and

has an enrollment of 428 students, 47.7 percent minority.

Build Academy at one time was an almost all-minority school. With

strong parental involvement, it now has an enrollment of 905

students, with a 52 percent minority representation.

There are many other examples of innovative Magnet Schools,

including the Montessori School, the Buffalo Academy for Visual and

Performing Arts, and the Buffalo Alternative School.

30a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

A key to the success of the plan is the fact that for the

most part, the integration of the schools has been

achieved by voluntary means. Through the use of

innovative educational techniques, the need for fixed

assignments and mandatory busing of students have

been kept to a minimum. There has been no disruption of

the schools, no violence, and no massive “white flight of

majority students from the City.” Instead, the City

schools have improved through the use of these

programs, and the proportion of majority to minority

students has remained steady, even as the population of

the City has decreased.

*The following chart demonstrates that, while there has been a

decline in the enrollment of the BPSS since 1976, the BPSS has lost

proportionately fewer students than have the Buffalo Diocesan

schools. This indicates that the decline is due to factors other than

the integration orders.

Exhibit 794 at 5.

(Footnote continued on following page)

3la

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

(Footnote continued from preceding page)

AN ENROLLMENT COMPARISON OF THE BUFFALO PUBLIC

AND THE DIOCESAN SCHOOLS

1976-1981

Buffalo Public

Schools No/% 1976-81

Decline or

976-77* 1977-78* 1978-79* “ 1979-80* 1980-81* 1981-82** Increase

5,167 53,764 51,325 49,235 47,907 46,918 -8,249/-15.0%

-1,403 || 2,439 | | iis) His | 989 |

2.5 4.5 4-1 a as

-3.0 average

per year

2 Ref. used BEDS

September 29, 1981 Ethnic Census Report

Buffalo Diocese

Schools

No/% 1976-81

Decline or

976-77 iN 1978-79* 1979-80* 1980-81* 1981-82** Increase

1,155 15,775 14,680 13,617 12,663 12,054 -5,101/-29.7%

-1,380 -1,096 1.063 -954 609

1 8.0 8.9 7.2 7.0 4.8 5.9 average

* 5 per year

® Directory of Schools published by the Diocese of Buffalo Department of

jon 1976-1981 editions. .

32a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

It cannot be denied that from an educational point of

view, the programs such as the Early Childhood Centers

and the Magnet Schools have been successful. They have

been developed with a background of solid integration

effort and, most importantly, their use has been

sanctioned by this court and the United States Court of

Appeals for the Second Circuit.

In reviewing the Board’s request for additional funds,

then, we begin with the proposition that the BPSS as it

currently exists, having evolved over the six years since

the court’s liability decision, is the preferred, acceptable

method of desegregating the Buffalo schools. It is simply

too late in the day to expect the Board to dismantle the

existing system and set up a new structure.‘

Through the court’s extensive involvement in the case,

we have become intimately familiar with the various

programs and the system as a whole and are acutely

33a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

success of Buffalo's integration efforts.“ As this court

has repeatedly stated, we have no interest in usurping

the functions of the Board and could not, under any

circumstances, run the BPSS. That job is left to the

expertise of the Board and its staff, particularly Mr.

*That the quality of education to be received within the Buffalo

Public Schools is directly related to the success of any school

desegregation order is not disputed by the City defendants. One of

the witnesses who testified for the Mayor and the Common Council

was the Mayor's Commissioner of Administration and ‘inance, Mr.

Richard Planavsky. Before he was appointed to his current position,

Mr. Planavsky was employed as an eighth grade algebra teacher in

the BPSS. The following exchange took place during cross-

examination of Mr. Planavsky between the attorneys for the Board of

Education and the Mayor's Commissioner of Administration and

Finance:

Q What did you personally do in your involvement to

implement the desegregation program of this Court?

A I did a real good job of teaching my students.

Q Well, explain what you mean by that. That is a conclusion,

your conclusion?

A Well, I thought I had a very good rate, as far as my

students were concerned, of passing mathematic courses. |

thought that I even taught extra algebra courses, my students

were able to get credit for 9th grade algebra while they were 8th

graders. I think these are all things that are furthering the

You think those kinds of things further the implementation

this Court's desegregation order?

Yes, I do.

Why do you think that?

Because I think that it helps to make it a successful

34a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Reville and Mr. Murray. Nevertheless, to the extent the

programs affect the desegregation efforts, they are the

court’s concern.

The court has made clear, too, that it is reluctant to

interfere in this funding dispute. As stated in the order

of June 30, 1982, before this court can order the Mayor

and the Common Council to provide additional funds to

the Board of Education, the Board has the burden of

showing that these funds are necessary to insure

compliance with our orders and with the orders of the

United States Court of Appeals for the Second Circuit.

With this in mind, we turn to the question of whether

the Board has satisfied this burden.

The Board’s primary witness during the hearing was

Mr. Joseph T. Murray, the Associate Superintendent for

Instructional Services. Mr. Murray has been a witness in

this case on many occasions. In addition, he is a

constant participant at the meetings which take place

among the parties and the court. Throughout the remedy

phase, the court has found him to be a thoroughly

credible witness. He is, undoubtedly, the most

knowledgeable person regarding the desegregation

program and its needs. At the time the Phase I Plan was

proposed by the Board, there were many predictions that

the reliance upon voluntary programs could not work.

Mr. Murray was confident that the plan would succeed,

and throughout the years, his guidance and insight have

proven reliable and invaluable.

35a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Mr. Murray testified that the Board would not be able

to adequately desegregate the schools with an operations

appropriation of $149,000,000. In an affidavit submitted

to the court on June 1, 1982, he attached a list of

projected budget cuts which would have to be made from

the instructional division unless the budget

appropriation was increased. See Affidavit in Support of

May 27, 1982, Order to Show Cause, Exhibit E. This

document shows that a number of the items which would

have to be eliminated from the BPSS would indeed have

a drastic, negative impact upon the school desegregation

order.

The projected cuts include such functions as two

elementary school principals, three secondary principals,

central office administrators for handicapped education,

helping teachers, reading and math specialists, music,

art, physical education teachers, librarians, guidance

counselors, 52 elementary teachers, and 37 secondary

teachers. In addition, Mr. Murray stated that the BPSS

would be forced to eliminate 53 pre-Kindergarten

teachers and 70 Kindergarten teachers, thus effectively

ending the successful Kindergarten and pre-Kindergarten

programs.

In any school system, budgetary cuts of this nature

would have a serious impact upon the quality of the

school system. If these cuts were to go through as

anticipated, there is little doubt that they would have a

deleterious effect upon the quality of education offered to

the school children of the City of Buffalo. This is

especially unfortunate in light of the recent progress

36a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

made in the quality of education and in the fact that the

reading scores and general performance scores of the

school children have been steadily improving over the

past few years. If this were the only impact, the court

could not intervene in this controversy. The Board has

demonstrated, however, that these cuts would have a

serious negative impact upon the desegregation orders of

this court.

In the opinion of Mr. Reville, Mr. Murray, and the

other educational experts of the Board and its staff, the

highly successful Kindergarten and pre-Kindergarten

programs are a crucial part of the desegregation effort.

The City has suggested that the Board could go a long

way towards living within its appropriation by

eliminating pre-Kindergarten and all-day Kindergarten.”

See Brief of the Mayor and the Common Council at 18.

The Mayor points out that these programs are not

mandated by the Commissioner of Education and that

Buffalo has a disproportionately high ratio of students

attending these programs, far more than in comparable

cities such as Syracuse, Rochester, New York City, or

Yonkers. This suggestion of the City completely misses

the mark. None of the other cities has the same need to

offer full-day Kindergarten or pre-Kindergarten classes

in order to attract majority students to implement a

school desegregation program. The City has seized upon

a list of items supplied to Mr. Richard Planavsky, the

Mayor’s Commissioner of Administration and Finance,

by Mr. Murray, setting out those items which are and

are not mandated by the Commissioner of Education (see

37a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Exhibit attached to supplemental affidavit of Richard

Planavsky) and has apparently taken the view that

anything not mandated by the Commissioner of

Education may be eliminated in order to save money.

This, however, is not an accurate or realistic view of the

situation. While the Commissioner of Education is by

statute the authority dictating the minimum

requirements for the education system, there are many

other obligations which bind the Board and hinder its

ability to freely control its expenditures. The Board is

obligated to comply with the orders of this court and

with various state and federal statutes and regulations,

including those recently enacted regarding handicapped

children.

Under federal and state law, handicapped students

must be afforded the maximum opportunity for

integration with non-handicapped students. See 20

U.S.C. 514120508); Rehabilitation Act of 1973 §504, 29

U.S.C. 8794: 20 U.S.C. §1401(18); 34 CFR §300.550,

$300.4, $104.33. In educational jargon, the placing of

handicapped students with non-handicapped students at

every possible opportunity is called mainstreaming of

the handicapped youngsters. Under the law, the school

district has the responsibility to provide an appropriate

education designed to meet the individual needs of each

child. This law is applicable to the school district without

regard to the finances available to the Board.

wnt

„ ‘

. 5

2 9a) 4 Sethe ey ae

CRU Re Peary Mm nD Reg

38a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

In addition to the federal and state laws and

regulations, the Board is also bound by this court's

orders in two pending cases, Andres v. Reville, Civ. 80-

482, and Bushey v. City of Buffalo Board of Education,

Civ. 81-254.

A consent order was issued in the case of Andres v.

Reville in May of 1982. During the hearing, both Mr.

Murray and Mr. Reville testified that the reduction in

the teaching staff which will be required unless

additional funds are forthcoming, would be a violation of

the consent decree in the Andres case and would also

place the school in jeopardy of violating the federal and

state law.

For example, the records show that in the case of

children who are severely physically handicapped, it may

be necessary to have as few as six children in a

classroom, which requires the Board to hire additional

staff because these children cannot care for themselves

and need both the assistance of the teacher and an aide

if they are to receive an adequate education. See Tr., Vol.

6 at 144. Moreover, the consent order in the Andres case

requires that an

adequate number of supervisory personnel shall be

assigned to the TMR program. Further, a sufficient

number of aides and professional staff shall be

utilized to accomplish the matters and principles set

forth in this agreement. Adequate and appropriate

in-service training shall be established and provided

to said aides and professional staff.

39a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

See Civ. 80-482, Order of May 27, 1982.“

Andres v. Reville, Civ. 80-482, involves trainable mentally retarded

[TMR] school children. The Students involved in Bushey v. Board of

Education are all handicapped school children plus all those suspected

of possessing a physical, emotional, or mental handicap.

What constitutes a sufficient number of aides and teachers has

been defined more specifically in the agreement stipulated to by the

parties also on May 27, 1982, which has been filed with the court and

made a part of the Andres case. Paragraph 11 of the agreement

provides that:

As a result of the increase in individualized objectives and

community-based training, and based upon the present

enrollment the staffing in the TMR program shall be at the

following levels:

(a) At School 45—5 teachers and 2 aides

(b) At Buffalo Traditional—5 teachers and 3 aides

(e) At McKinley—4 teachers and 2 aides

impossible to ascertain exactly how many of those children there are

in the BPSS. And, indeed, one of the objectives of the Bushey case is

40a

APPENDIX ſii - Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

There is no question that compliance with these laws

will cost the Board a great deal of money. And, indeed,

many of the increases in the school budget were for

implementation of these regulations, orders, and laws

regarding handicapped children.

Another non- mandated commitment of the Board is

the requirement that non-English speaking children or

children who have limited English proficiency receive an

adequate education. There are a significant number of

children in the City who do not speak English at all, or

who do not speak it sufficiently well to attend classes

given in English. Therefore, the Board must provide

classes where instruction is given in a variety of

languages.

In particular, there is a large number of Spanish-

speaking children in the City. The Hispanic intervenors

entered the case in 1977 and have endeavored to protect

the interests of these children. The City is on record as

being opposed to the creation of two new positions

within the system which the Board claims are necessary

to enable the Board to comply with the court’s orders

regarding Hispanic school children. One would be

stationed at Grover Cleveland High School and the other

at the Herman Badilio Community School. Both of these

schools have a disproportionately large number of

children who lack significant English skills. Therefore, it

is essential that the Board provide bilingual personnel so

that the school officials and teachers will be able to

communicate with the school children and their parents.

OP eee Tee 2

ite ot ee —

eis : 8 1 .

e . 8 ren 0

eet A

41a

APPENDIX ſii Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. I., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

In addition, as the Hispanic intervenor has pointed

out, the Board is committed to the expenditure of certain

funds through operation of the federal grant system.

That is, in requesting and receiving federal funds over

the past féw years, particularly with regard to certain

bilingual programs and programs for the Native

American students, the Board committed itself to supply

certain services to the students who would take

advantage of these classes. In making the application for

federal funds, the Board was required to make

assurances that the programs would continue to be

provided regardless of whether the organization making

the application continued to receive federal funds.

Therefore, although certain federal funds have been lost,

the Board is nevertheless obligated to provide these

services to the school children. See Tr., Vol. 1 at 70-71,

Vol. 5 at 124-26. This, then constitutes an additional

drain upon the Board’s financial resources, and one

which must continue to be met by the Board out of its

operating funds, even if the federal funds are not

forthcoming.

Yet another obligation is imposed on the Board by

operation of the collective bargaining agreements which

are in effect between the Board and many of its

employees. Much has been made of the fact that teachers

and administrators are to receive a six to seven percent

increase in pay for the next school year.

Se Se Ras ae ie aes 8

42a

APPENDIX ſii Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

The court notes initially that the salary increases for

the year commencing July 1, 1982, consist of six percent

across-the-board increase. In addition, for teachers with

a high level of experience, above the fourteenth step,

there is an additional one percent increase. This wage

increase, and the previous increase for the year July 1,

1981—June 30, 1982, were negotiated and agreed upon

as part of the usual collective bargaining process. The

terms of the agree nent, which were negotiated in 1981

to cover the two years, are public knowledge and were

known to the Mayor and the Common Council.

As the record demonstrates, the negotiated increases

are not overly generous, and they are comparable to the

wage increases received by City employees. Indeed,

43a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

of these new positions are necessary to implement the

regulations regarding handicapped children.

Further, just as some positions are necessary to enable

the court to comply with the court’s orders in the

Bushey case and with federal and state laws, so too are

other positions, such as bus aides, obviously necessary to

implement the desegregation order.

The City’s position is, basically, that these positions

are not mandated by the Commissioner of Education of

the State of Ne. York; therefore, they are not necessary.

However, as we have stated, the desegregation system

44a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Clearly, these children are incapable of watching for their

stops, of knowing when and where to leave the bus. An

aide is required to insure that the child gets off at the

right bus stop and also to insure that someone is there to

receive the child. Without the assurance that there will

be someone to care for the child, the Board fears, and

with some justification, that the parents will be reluctant

to let their children board the buses.

Moreover, the need for increased funds to hire more

teacher aides and bus aides is evident, because although

a smaller student population is projected for the coming

school year, more children will be transported than last

year.

With regard to the number of teachers employed by

the Board, it is evident that here, too, a decrease in the

number of teachers—both classroom teachers and

teachers in special classes—is relevant to the success of

the desegregation program.’

ile

aie

Do ow ee. Se ee a Se. ve ek

45a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Once again, we must emphasize that because of past

orders of the court and the history of the litigation, the

City as well as the Board have committed themselves to

a continuation of the integration program started with

on the average than other districts. On the contrary, Mr. Reville

June 3).

It is apparent from the record that the City defendants have simply

misconstrued the figures in equating pupil-teacher ratio with class

have explained adequately that the

of represcatation of class size,

well special reading teachers, special math

teachers, handicapped teachers, end those teachers which are ‘

funds, such as teachers employed by the

46a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Phase I and continuing through Phase IIIx and the

concept of Magnet Schools and Early Childhood Centers.

Small classroom sizes or the assistance which an aide

can give to a teacher within a classroom is, in the opinion

of the educational experts of the Board, an integral part

of these programs. In response to the question whether

the Board could continue to successfully operate its

program next year without additional staff, Mr.

Murray’s answer was unequivocal. He said, “We

cannot. Tr., Vol. 1 at 64.

Another very serious problem facing the Board this

year is the dramatic decrease in the amount of federal

aid the BPSS has been receiving. Mr. Reville testified

that the BPSS receives more federal aid than any other

school district of comparable size in the country and that

many of these funds are used for desegregation. Tr., Vol.

5 at 167. The record shows that for school year 1982-83,

these funds have been slashed severely.

With the passage of the Education Consolidation and

Improvement Act of 1981, as part of Title V of the

Omnibus Budget Reconciliation Act of 1981, Pub.L. 97-

35, Congress consolidated a number of programs, }

including the Emergency School Aid Act, 20 U.S.C.

. $§3191-3207, under which the Board received a large

5 amount of desegregation funds, into block grants to be

, distributed to the states.

The Board has lost a substantial amount of funds, over

$10,000,000, because of changes in the law. The issue

47a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

was discussed during the hearing. Mr. Murray and Mr.

Reville testified that despite the devastating effect of

these cuts, the Board did not ask the City to replace the

lost funds. The Board’s bottom line figure of

$156,500,000 reflects significantly smaller amount of

actual funds available for desegregation over what the

Board received last year.“ Tr., Vol. 1 at 23-25; Vol. 5 at

14-20.

While the Board did not and does not now ask the City

to replace these desegregation funds, the cutbacks are

relevant to the issue of the Board’s need for more funds.

The anticipated losses were made known to the Mayor

and Common Council during the budgetary process, and

the City defendants were kept informed. It is evident

from the record that the Board will need far more funds

to operate the schools and carry on the court’s

desegregation order than it had available last year. Upon

review of the entire record, the court accepts the expert

opinion of the Board staff that $149,100,000 will not be

sufficient to enable the Board to desegregate the schools.

The court finds that the Board has carried its burden of

demonstrating that additional funds are required and

that they are “necessary to cure the effects of prior

unconstitutional school segregation.’’ Oliver v.

Kalamazoo Board of Education, 640 F.2d 782, 787 (6th

Cir. 1980). The court shall therefore order the City to

“Mr. Murray and Mr. Reville stated that if the Board included the

amount of lost federal funds, its budget request would be in excess of

Se ee ee ee

5 at 153-654.

48a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

make available an additional $7,400,000 to the Board on

or before June 3, 1983, so that the Board shall have

sufficient funds at its disposal to implement the orders

of this court.

The Mayor characterizes the Board’s request for the

funds as an application for a mandatory injunction, in

which remedies are issued under compelling

circumstances, citing Citizens Concerned, etc. v. City and

County of Denver, 628 F.2d 1289, 1299 (10th Cir. 1980);

Holy Spirit Ass'n v. Town of New Castle, 480 F.Supp.

1212 (S.D.N.Y. 1979). The court has considered these

cases and finds that they are inapplicable to the instant

case for many reasons. The fundamental and crucial

point which the Mayor overlooks is that he and the

Common Council have been defendants in this school

case since its inception and have had a continuing duty

to stay informed about the needs of the school district

and act in partnership with the Board in making

available sufficient funding. Also, as the court has

already explained, the Mayor and the Common Council

have the obligation under New York law to fund the

schools.

In each of my prior orders, it was made clear that the

burden to desegregate the school falls not only upon the

Board of Education but also upon the Mayor and the

Common Council. That the Board has been in the

vanguard of the attempts to formulate an effective

remedy is, as a practical matter, a necessary

8 Bed ; . f un 1 1 Pe ae a Gre

rene n i. ryan! PA vit A De sit ted Me. ous *

oe Te’ ge -s

Fad | a * ot

49a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

development. Nevertheless, we must keep in mind that

the City and the Mayor, too, were defendants in the

original lawsuit.''

As a defendant, it is the duty of the Mayor and the

Common Council, as well as the Board, to insure that the

schools are effectively and completely desegregated. As

the chief executive officer of the City and as chief fiscal

officer, the Mayor has the affirmative obligation of

assuring that there are adequate funds available to

guarantee that this is possible. It was the Mayor's duty

to keep informed of the court’s orders which directed the

Board to implement various integration programs and to

assess the impact these orders would have upon City

successors remained in the lawsuit in their official capacities. Indeed,

this very issue arose last year, after the court issued an order in May

of 1981 directing the Board to implement Phase IIIx.

The court finds that the Mayor is a party to this lawsuit.

Under Rule 19 of the Federal Rules of Civil Procedure, a person

shall be joined as a party in an action if in his absence complete

relief cannot be granted. Since it has been necessary to order

the defendants to implement a desegregation plan, it is clear

that the Mayor, as a key fiscal officer of the City, is an essential

party.

See Order of June 8, 1981, at 1-2. The Mayor's status as a defendant

was recognized by the United States Court of Appeals for the Second

Circuit when it heard oral argument on his appeal and subsequently

rejected it.

18 * 3 ;

4 . * ee * a be tae. we.

50a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

finances. The Mayor's task as codefendant in the lawsuit

was to familiarize himself with the needs of the Board,

vis-a-vis, the desegregation program. He should have

affirmatively inquired as to what was necessary, what

: the program entailed, what were the Board’s needs with

regard to those programs mandated by other court

orders and by the state and federal regulations. The

focus of his inquiry should have been: how much money is

necessary to enable the Board to carry out the mandates

of this court and its other commitments? It is clear from

the testimony that the Mayor failed to make any such

inquiries. **

The record indicates that, except for attending the

formal presentations made by Mr. Murray and Mr.

Reville during the public hearings, neither the Mayor nor

any member of his staff made an effort to ascertain

exactly what was needed to carry out the desegregation

orders. That the Mayor could have obtained the

information is evident from prior events in the case.

As stated above, a similar funding dispute arose last

year and ended with a consent order directing the

payment of additional money. As part of the order, the 10

Board and its staff were directed

to fully cooperate with the Mayor of the City of

Buffalo and his representatives in reviewing the *

operation, finances and activities of the Board, such hs

cooperation shall include giving all information and

reports reasonably requested by the Mayor or his

representatives including materials generated by

, ; N 28

1 W 1 bya ’ 3 * 3

5 ra tee! A a 4a ee n rene

5la

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

outside auditors of Board finances and said auditors

shall be instructed by the Board to supply

information and reports reasonably requested by the

Mayor or his representatives

Order of August 14, 1981, at 2. This provision of the

order was added at the insistence of the Mayor over the

objections of the Board. The Mayor could have obtained

any information desired through utilization of his Board

of Education Review Committee.

Yet, at the time of the hearing in July, the Committee

had not submitted reports. Moreover, the Mayor

testified that no recommendations from the Committee

came to his office. He also stated that, while he was kept

informed in general terms of the meetings by Mr.

Planavsky, he never reviewed the minutes of the

meetings and didn't learn much about the

Committee’s recommendations. Tr., Vol. 3 at 67, 68."

The reports of the consultants hired by the Mayor's Board of

Education Review Committee were made available to the court

sometime after the hearing was closed. In an order dated August 13,

52a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

None of the consultants hired by the Committee was

called by the City to express his or her opinion regarding

the needs of the Board, and it does not appear that the

Mayor made use of this resource. This lack of inquiry is

especially curious in view of the City’s insistence upon

the establishment of the Committee last year.

One of the primary witnesses for the City defendants

during the hearing was Mr. Planavsky. When asked

whether or not he took the school desegregation needs

into account, Mr. Planavsky responded in the

affirmative. It was clear from the testimony, however,

that he, as well as the Mayor, eschewed a thorough

investigation of the desegregation program and, instead,

employed a mechanical formula in arriving at the amount

of funds for the Board’s operations and maintenance

budget.

In making the specific allocation of funds to the Board.

the Mayor and his staff worked upon two assumptions.

The first was that the Board was just another

53a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

limitations regarding the lack of funds. The second

assumption was that the Board had been able to function

adequately throughout all the prior years of the

desegregation order. Therefore, there could be no reason

to award the Board a proportionately larger increase in

funds this year than it had received last year and the

year before. The record shows that the Mayor and his

staff intended to award the Board approximately 92-93

percent of whatever amount the Board requested or, in

the alternative, give the Board a 5.5 percent increase

Mr. Planavsky stated:

54a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

over last year's budget This figure was one of the

items taken into account by the City. During the

hearing, Mr. Planavsky stated:

[Wie iooked at, generally speaking, we looked at

what revenues were available. We looked at the

needs of the Board of Education and then we used

comparability and then based on those, generally

speaking, we made our decision.

Tr., Vol. 2 at 62.

Mr. Planavsky was not very specific about the other

information he took into account. (Tr., Vol. 2 at 64-72.)

He produced a document which he said he used to

analyze the Board estimate. (Exhibits 769 and 770.) His

Wen I went through the Board’s budget, I took

all of the new jobs and I put thern on my list here,

because I thought that if it vas a new position, and

there were about three hundred of them, I didn't

included. the Mayor's $150,000,000 recommendation be far less

than 92-03 percent of the Board's request. Tr., Vol. 5 at 21-23.

they could possibly need three hundred new

55a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Tr., Vol. 2 at 66.“ From the record, it appears that the

statement reflects the general attitude of the Mayor and

his staff in performing their tasks. Funding was denied

for new positions notwithstanding the impact of the

denial of the funds on the desegregation effort.

This is supported by the testimony of the Mayor, who

stated that in arriving at the $150,000,000 figure for

Board use, he took into account the declining enrollment

of about 1,185 pupils, the money that the Board was to

receive from the State government, and the amount to be

received by the tax levy in the City of Buffalo. Tr., Vol.

2 at 171. He stated that he “took into consideration

State aid, the property taxes, the sales taxes and my

other departments.” Tr.,. Vol. 2 at 212. Nowhere in his

consideration is there any indication that the Mayor took

56a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

an increase limited to a certain percentage over what it

received last year.

In fact, as the testimony shows, the City reduced the

amount of City revenues available to the Board of

Education.

REVENUES FOR SCHOOLS CHANGE

1981-82 1982-83 Dollars Percent

OPERATIONS &

MAINTENANCE

City Tax Levy $388 8 38.3 8—0.5 —1.29%

Other 5.4 5.4 — —

State Aid 84.7 93.3 8.6 10.15

Sales Tax 11.2 12.5 1.3 11.61

Miscellaneous 0.6 0.5 —0.1 —16.67

Court Order 2.0 0.0 — 2.0 100.00

Subtotal O & M 8142.7 8150.0 8 7.3 5.12%

DEBT SERVICE

Tax Levy $59 8 6.5 8 06 10.17%

Other 7 5 —0.2 —28.57

Debt Service 8 6.6 $ 70 $ 04 606% .

GRAND TOTAL 8149.83 $1570 86 7.7 5.16%

Exhibit 794 (emphasis by underscoring added).

57a

APPENDIX ii Opinion of the United States «District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

As the table indicates, there has been a reduction in

local effort to support the BPSS and the desegregation

program. Instead of providing an additional $8,000,000

more to the Board, as the Mayor claimed, the Board’s

share of revenues from the City’s tax rolls is actually

approximately $500,000 less than last year. The

$8,000,000 increase for which the City takes credit comes

from New York State aid which the State designates

specifically for Board use.

Further evidence which shows that the Mayor did not

perform his duty of inquiring into the desegregation

needs of the Board is found in the fact that he was

cautious in making up the budget and acknowledged

other legal obligations of the City. The Mayor set aside

substantial sums in reserve accounts to cover potential

liability of the City from decisions which may be

58a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Yet, many cities in the State face the possibility of

similar judgments being taken against them. As was

noted by the Board, however, local municipal

governments adversely affected by the Hurd decision can

expect to receive assistance from the State of New York

in meeting these obligations. See Post-Hearing Brief of

the Board at 18, and Exhibit A attached thereto.

In addition, there is another way in which the City

could meet its obligations without endangering the

success of the desegregation program, and that is by

issuing short or long-term obligations. During the

hearing, the Mayor stated that he is reluctant to borrow

funds to pay the Hurd judgments, and there is no doubt

that the Mayor's generally unsympathetic attitude

towards debts has benefited the City.

The Board has provided the court with a memorandum

from the New York Senate Finance Committee 's Office

of Fiscal Studies, dated May 14, 1982, which pertains to

Buffalo's fiscal situation (Exhibit A to the Board's

Proposed Findings of Fact and Conclusions of Law). The

report states that the City hass

reduceſd] its cumulative deficit from $37.5 million in

June of 1975 to almost zero this year—quite a

for a unit of government located in an area of

59a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Nevertheless, the same report noted with disapproval

the Mayor's $4,700,000 in budgeted reserves because

none of them, including the 32,000,000 judgment reserve,

is an “absolute necessity. Jd. at 3-4. In addition, the

Mayor has set up a second discretionary reserve fund in

the amount of $1,500,000 for salary negotiations.

Throughout this dispute, the City has emphasized the

fact that City Fire and Police Department employees are

to receive a salary increase of only 2 percent of current

salaries for fiscal year 1983. See Affidavit of the Mayor,

Tr., Vol. 2 at 133-35. In fact, however, the Mayor is well

aware that this 2 percent figure represents the City’s

offer and not a final resolution of what it will have to

pay these employees. Pursuant to the New York State

Taylor Law, the collective bargaining agents for the

police officers and the firefighters are entitled to seek

binding arbitration for wage disputes.

60a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Certainly, the obligation of the City to fund the

desegregation program is equally important, and the

City may borrow to pay for this obligation also.

Judgments, court orders, and arbitration decisions are

not foreign to the Mayor and, in setting aside these

reserve funds, he has acknowledged the City’s obligation

to follow court orders. In contrast to his recognition of

the binding nature of the Hurd decision and an

arbitration award, the budget does not contain a reserve

account to provide additional desegregation funds if

required by this court.

This decision is not intended to be an exhaustive

review of all the arguments raised by the parties during

the hearing and in their post-hearing briefs. Instead, the

court shall note that, in addition to the issues discussed,

we have carefully considered all of the arguments and

objections raised by the Mayor and the Common Council

during the hearing and in their post-hearing brief. These

arguments do not change our holding that the City must

provide an additional $7,400,000 to the Board.

Some arguments of the City defendants, however,

require brief discussion. The first involves the Mayor's

2 contention that the Board's application for additional

eee

tie ‘ered should first prepare a formal. line- by - line 4

budget to show ib 1, . & beer Nun bo

3160,00. 000 currently allocated. Until this task is 2

completed, the City defendants argue, they and the court =

have no way of knowing whether items can be cut which 2

1 10 1 5 1

uy cg tate umi. ene

6la

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Under the New York State Education Law, the Board

must “prepare annually an itemized estimate for the

current or ensuing fiscal year of such sum of money as it

may deem necessary....” New York State Education

Law §2576. The Board has no power to appropriate

funds but is dependent upon the City to finance its

expenditures. Under the State law, however, the City

cannot dictate to the Board how these funds should be

spent. That decision is left to the expertise of the Board

and its staff.

To require the Board to prepare a second itemized

estimate and to allow the City defendants to examine the

budget on a line-by-line basis, directing the Board to cut

out one program or another, or to cut back on certain

62a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

holding of our decision today remains intact. The Board

has carried its burden.

Another prong of this argument is the City's

contention that the Board should have followed the

procedures of Education Law §2576(6) which provides:

A board of education may, to meet emergencies

which may arise, submit a special estimate in which

items for extraordinary expenses may be submitted

to meet such emergencies. Such estimate shall

contain a complete statement of the purposes for

which the items are requested and the necessity

therefor. The same method of procedure shall be

followed in submitting such estimate and such

estimate shall be subject to the same consideration

and action as is required in the submission,

consideration and action upon the regular annual

that it is not clear that section 2576(6) is applicable to

'* We note, in addition, that it is not practically feasible to require

0 the City

63a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

this case. It may be intended to apply only to emergency

situations which arise during the school year, such as

natural disasters, and not to situations which are

foreseeable, such as a collapse of the BPSS and the

desegregation program due to a lack of funds.

Secondly, it is clear that the Board has made

application for increased funds to the City. The City has

been informed of the developments regarding federal aid

cutbacks and increased needs and has refused to advance

additional funds. It would be futile for the court to

require the Board to make yet another application for the

same relief.

The next issue involves the surplus of funds from the

last school year that the Board allegedly has at its

to indicate that the Board has, or will have, a surplus of

funds when the final fiscal accounting is rendered.

64a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

The final issue remaining for decision is the plaintiffs’

motion for further desegregation. Plaintiffs have

submitted a proposed plan to bring the six elementary

schools remaining outside the court’s guidelines into

compliance with our orders. The Board has opposed this

plan. The Board’s position is that given the size and

racial makeup of the school children of the City, adoption

of the plaintiffs’ plan would cause schools which are now

This issue was explored in depth during the hearing. In

support of their motion, plaintiffs relied upon the

testimony of Mr. Murray. Mr. Murray stated his position

as being opposed to any additional pupil redistribution at

this time.

65a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

The court notes that in our order of June 30, 1982, we

stated that “a}fter the hearing, we hope to be in a

position to issue a final order, ending the court’s role in

Arthur v. Nyquist. We now find that it is not possible

to do so at this time. Although plaintiffs’ proposal has

been rejected, there are schools which remain

unbalanced. When the Board made its representations

regarding its plan for the coming year, its

representatives assured the court that the Board’s staff

would continue to review the data and determine

whether additional remedial action is feasible. See Order

of May 5, 1982. Further, the specific needs of the

handicapped and Hispanic school children must be

addressed, and the interrelationship of these special

needs and special programs, within the desegregation

order. Clearly, there will be further meetings and future

orders in this case. For the present, the court holds that

the Board’s plans for school year 1982-83 shall be

implemented as scheduled on September 8, 1982.

To summarize, the court grants the application made

by plaintiffs and supported by the Board and directs the

Mayor and the Common Council to make available to the

66a

APPENDIX (ii)—Opinion of the United States District

Court for the Western District of New York, per

Curtin, Ch. J., dated and entered August 27, 1982, and

reported at 547 F.Supp. 468

Board an additional $7,400,000. The motion of the

plaintiffs to modify and amend the plan is denied.

So ordered.

At this time, it may be useful to look ahead to next year and the

years thereafter. It is obvious that the limited role of the court ought

to and must come to an end. This order was issued most reluctantly,

and only after carefully considering possible alternatives. It was only

done because it was absolutely necessary to carry out prior orders of

this court and the United States Court of Appeals. It cannot be said

that a similar order will be appropriate next year or thereafter.

In the coming months, it will be the obligation of the Board and

staff to inform the Mayor, his fiscal officers, and the Common

Council of its perceived needs for the future. It is the obligation of

the Mayor and others to question reasonably and to become informed

about the problems the Board has in providing educational services

within the law and the mandate of the court. Last year when the

Mayor insisted upon the formation of a committee to review Board

practices, the court agreed that it was a good idea and made its

formation a part of the order, over the objection of the Board. I still

its

“ee

67a

APPENDIX (iii)

Judgment of the United States Court of Appeals for

the Second Circuit dated and filed July 22, 1983

UNITED STATES COURT OF APPEALS

For The Second Circuit

Civ-1972-325

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States

Courthouse in the City of New York, on the twenty-

second day of July one thousand nine hundred and

eighty-three.

United States Court of Appeals

Second Circuit

Filed

Jul 22 1983

A. Daniel Fusaro, Clerk

Present:

HON: IRVING R. KAUFMAN

HON: WILLIAM H. TIMBERS

HON: JON O. NEWMAN

Circuit Judges,

Filed

Aug 29 8:41 AM 83

U.S. District Court |

W.D. of N.Y. | a

68a

APPENDIX (iii)-- Judgment of the United States Court

of Appeals for the Second Circuit dated and filed July

22, 1983 1

GEORGE ARTHUR, ET AL.,

Plaintiffs-Appellees,

and

COMMUNITY ADVISORY BOARD FOR BILINGUAL

EDUCATION OF BUFFALO, ET AL.,

Plaintiffs-Intervenors-Appellees,

vs.

EWALD P. NYQUIST, ET AL.,

Defendants,

JAMES D. GRIFFIN, ET AL.,

Defendants-Appellants.

82-7690.

Appeal from the United States District Court for the

Western District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Western District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOPF, it is now hereby

ordered, adjudged, and decreed that the order of said

District Court be and it hereby is affirmed in accordance

ie ee ee ee

against the appellants.

A TRUE COPY A. Daniel Fusaro

A. DANIEL FUSARO, CLERK Clerk

By VICTORIA C. SATTON EDWARD J. GUARDARO

by: Edward J. Guardaro

Deputy Clerk |

ses:

69a

APPENDIX (iv)

Excerpts of trial exhibits

AFFIDAVIT OF JOSEPH T. MURRAY IN SUPPORT

OF MAY 27, 1982 ORDER

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

GEORGE ARTHUR, et al,

Plaintiffs,

vs.

EWALD P. NYQUIST, et ai,

Defendants.

Civil No. 1972-325.

State of New York

County of Erie ss

City of Buffalo

JOSEPH T. MURRAY, being duly sworn, deposes and

says:

1. That I am the Associate Superintendent of

Instructional Services.

2. That I have occupied this position since July 1,

70a

APPENDIX (iv)—Excerpts of triai exhibits

3. That my present responsibilities include

management and supervision of the Instructional

Division including all principals, teachers and support

staff, and since 1976 I have been assigned primary

responsibility for the development and implementation of

each phase of the School District’s desegregation

remedy.

4. That I am thoroughly familiar with the needs of

the School System as they relate to the commitments of

the staff, Superintendent and Board of Education under

Phase IIIx as approved by the May 19, 1981 Order of

this Court, and have given testimony and provided

exhibits and other information relating to those needs on

numerous occasions.

5. That I am also familiar with the additional needs of

the School System which are related to the

implementation of programs for pupils with special needs

as required by the State and Federal laws, rules and

regulations. 3

6. That approximately $18,147,725 were direct

expenditures in implementation of the desegregation

program ordered by the Court, including $7,930.550 for

the transportation of pupils attending schools outside

their immediate neighborhoods for purposes of

71a

APPENDIX (iv)—Excerpts of trial exhibits

9. The continuation of our existing programs, the

implementation of the components of Phase IIIx and the

program requirements of pupils with special needs

cannot be accomplished with budget appropriations less

than $156.5 million.

10. Actually, a realistic effort to maintain the pace of

the improvements in the quality of educational services

we have been able to achieve since 1976 will require in

excess of $160 million.

11. Upon receipt of information that the Common

Council recommended an appropriation of $149.1 million

for the Board of Education, I was instructed to examine

methods to reduce the School System's budget by

approximately $10.1 million.

12. 1 have estimated the costs related to

72a

APPENDIX (iv)—Excerpts of trial exhibits

15. I am not aware of any reductions in program,

personnel, plant or pupil services which can be made by

the Buffalo Public Schools sufficient to permit us to

operate on a budget of only $149,100,000 unless we are

relieved of our obligation to continue the desegregation

effort ongoing in this School System.

16. Any such reductions will obviously impair our

ability to comply with the Orders of this Court and is

inconsistent with our desire to assure equal educational

opportunity to all pupils.

17. I have concluded that the pupils of the Buffalo

Public School System will be better served by a mandate

to the City to provide sufficient funding for our planned

programs during 1982-83 rather than be deprived of such

programs because of financial deficits.

JOSEPH T. MURRAY

Joseph T. Murray

‘Subscribed and sworn to before me,

this 3rd day of June, 1982.

WILLIAM E. CAREY

Commissioner of Deeds, City of

Buffalo, New York

My Commission Expires 12/31/82

73a

APPENDIX (iv)—Excerpts of trial exhibits

EXHIBIT A ATTACHED TO FOREGOING

AFFIDAVIT OF MURRAY

MANDATED COSTS

INTEGRATION PROGRAM

81/82 - 82/83

ELEMENTARY

145 Teachers (Magnets, E.C.C.’s & Academies) 2,436,000

174 Aides (Pre-K, K. E.C.C.'s & Academies) 1,305,000

Equipment, Supplies, Books 1,500,000

SECONDARY

Research Team (2 Teachers & 1 Aide) 43,210

57.7 Teachers (Magnets 7-12, Spec. Subj.) 969,360

PLANT DIVISION

Renovation, Remodeling & Painting 462,000

5,420,000

85,000

162,000

302,000

785,795

137,798

355,315

7,247,908

2,100,000

6-1-82

3,107,495

1,819,692

1,500,000

53,320

1,236,568

18,147,725

1 4 4 * N N n

74a

APPENDIX (iv)—Excerpts of trial exhibits

EXHIBIT B ATTACHED TO FOREGOING

AFFIDAVIT OF MURRAY

June 1, 1982

Mandated Handicapped Education Costs

1982-83 Budget Request

When 160.2 budget was prepared in January, 1982 the

Handicapped Education Program was listed as:

51 Teachers

6 Psychologists

1 Supervisor

100 Aides

Supplies - Test Items

At a cost of: $2,213,251

There is also an item for transportation

At a cost of: $ 290,500

On March 26, 1982 the Board of Regents took action

that gave school boards an option on class size which

allowed the Board to reduce its request by:

16 Teachers

50 Aides

1 Supervisor

Reducing its :

need to: $1,280,450 .

The transportation remains at: $ 290,500 1

The mandated cost for handicapped education in 1982-83

is now:

$1,570,950

u .

75a

APPENDIX (iv)—Excerpts of trial exhibits

EXHIBIT C ATTACHED TO FOREGOING

AFFIDAVIT OF MURRAY

BOARD OF EDUCATION—CITY OF BUFFALO

INTEROFFICE MEMORANDUM

Date June 4, 1982

Subject:

To: Joseph T. Murray, Associate Superintendent

of Instructional Services

From: Richard J. Evans, Assistant Superintendent

of Elementary Education

These teachers and services must be picked up from

some funding source to implement the desegregation

order.

Staffing—Teachers/Aides/Admin. (ESAA Funds)

ECC POSITIONS

8 Coordinators $ 240,000

1 Reading Specialist 30,000

1 Math Specialist 30,000

116 Aides 1,392,000

1,692,000

3-8

7 Coordinators 210,000

28 Aides 216,000

426,000

Phase I (4, 11, 18, 43, 45, 51, 77, 80)

76a

APPENDIX (iv)—Excerpts of trial exhibits

Phase II (63, 39, 68, 53, 74, 56, 3, Buffalo Alternative)

—

1.5 Foreign Language $ 45,000

3.7 Reading/Math Teachers 110,000

1.1 Resource 33,000

188,000

Southside and #64

5.4 Reading/Math 162,000

162,000

Southside

1 Human Relations Teacher 30,000

1 Reading Teacher 30,000

1 Math Teacher 30,000

1 Community Aide 12,000

102,000

Futures Academy

1 Aide 12,000

Martin Luther King Jr. (#39)

2 Aides 24,000

#19 |

1 Native American Resource Specialist 22,000

#56 |

1 Creative Resource Teacher 30,000 4

ECC/Academies (from Supplemental Basic) ig

60 Aides 720,000

Campus East

2.2 Reading/Math Teachers 66,000

77a

APPENDIX (iv)—Excerpts of trial exhibits

Campus West

3 Coordinators

Waterfront

1 Library Media Specialist

2.9 Arts Teachers

5 Home Economics

5 LA.

Academic Challenge Center

3 Reading / Math Teachers

4 Library / Media Specialists

Montessori

1 Community Resource Leader

1.1 Arts Teachers

Library / Media Specialists

4 Aides

Consultants Montessori

Follow Through

2 Coordinators

Buil Academy

1.5 Foreign La/Writing/I.A./Art)

5 Coordinator

2 Foreign Language

2 Community Aides

Science and Math Academy

1 Coordinator ; j

$ 90,000

30,000

49,300

15,000

109,300

90,000

12,000

102,000

10,000

18,700

12,000

48,000

1,200

89,900

60,000

45,000

15,000

6,000

24,000

30,000

78a

APPENDIX (iv)—Excerpts of trial exhibits

Addendum

NEW ACADEMIES - SCHOOLS 53, 74

A. Texts and Supplemental Material from SC #53 $ 39,511.14

Supplemental Mat./Supplies/Equipment #53 27,689.20

67,200.34

Texts and Supplemental Material from SC #74 19,958.89

Supplemental Mat./Supplies/Equipment #74 27,689.20

47,648.09

TOTAL Supplies/Equipt./Text = $ 114,848.43

B. Staffing

2 Coordinators 60,000.00

4 Aides 48,000.00

108,000.00

TOTAL to Establish New 3-8s = $ 222,848.43

Secondary Schools

Secondary (Bennett, Kensington, Grover, Lafayette,

Riverside and McKinley)

6.5 Math Lab Teachers 195,000.00

3 Coordinators (12 at 25%) 90,000.00

6 Home School Teacher

6 Social Worker

3.5 Guidance Counselor

10 = Aides

Secondary

1 Home School Teacher (Lafayette)

12 Unified Subject Teachers

4 Aides

79a

4 APPENDIX (iv)—Excerpts of trial exhibits

1 1. Performing Arts

1 Coordinator 30,000.00

1.3 Fine Arts Instructors 39,000.00

6 = Aides 72,000.00

- 1 Artist in Residence 24,000.00

165,000.00

‘ 2. Traditional ;

1 Communications Specialist 30,000.00 5

3 Reading / Math Teachers 90,000.00 :

A 5 Foreign Language 15,000.00 :

, 3 Aides 36,000.00

! 171,000.00 x

8. City Honors |

‘ 1 Guidance 30,000.00

: 1 Resource 30,000.00

¢ 4 Community Aides 48,000.00 x

Total Secondary Schools 1,428,000.00 5

if | GRAND TOTAL: “ 363.490.248.43 "

.— ee a

80a

APPENDIX (iv)—Excerpts of trial exhibits

EXHIBIT D ATTACHED TO FOREGOING

1981-82

$ 299,600

196,800

620,000

241,040

180,000

$1 537,440

$ 279,860

651,000

177,590

414,000

$1,522,450

AFFIDAVIT OF MURRAY.

Cost Estimate

Continue Phase IIIX

6/1/82

Early Childhood Centers

1982-83

Plant Dept. Costs $ -

Supplies & Equipment 40,000

Teachers 857,240

Aides 418,320

Transportation 198,000

$1,513,560

3-8 Academies

Supplies & Equip $ 200,000

Teachers 900,102

Aides 308,511

Transportation 455,400

1,864,013

—

62.5

81a

APPENDIX (iv)—Excerpts of trial exhibits

EXHIBIT E ATTACHED TO FOREGOING

AFFIDAVIT OF MURRAY.

INSTRUCTIONAL DIVISION

PROJECTED CUTS FROM 1982-1983

BUDGET REQUEST

Elementary Principals

Elementary Assistant Principals

Secondary Principals

Secondary Assistant Principals

Central Office Administrators

Handicapped Education (200.14 option)

Helping Teachers (Elementary)

Helping Teachers (Secondary)

Reading Specialists

Mathematics Specialists

Instrumental Music Teachers

Elementary Teachers

Secondary Teachers

Primary Art, Music, Phys. Ed. Teachers

Librarians P

Guidance Counselors

Attendance Teachers

Security Officers

Extra Curricular Activities

P.S.A.L. - 7th and 8th Grades

P.S.A.L. - Intramurals

Varsity Sports

Pre-Kindergarten Teachers

Kindergarten Teachers

June 1, 1982

$ 69,030

357,160

115,650

74,448

158,474

996,875

170,330

34,066

228,160

131,838

433,125

903,593

643,118

877,896

581,018

395,640

701,114

228,350

75,000

25,000

80,000

558,984

1,066,687

1,192,310

$10,097,866

82a

APPENDIX (iv)—Excerpts of trial exhibits

“PAGE I. ANNEXED TO FOREGOING ANSWERING

AFFIDAVITS OF RAICHLE, GRIFFIN

AND PLANAVSKY

_ INSTRUCTIONAL DIVISION

BUDGET REQUEST

1982-83

January 13, 1982

NON MANDATES

Extra Curricular Activities $ 75,000

P.S.A.L. - 7th and 8th 25,000

P.S.A.L. - Intramurals 80,000

Varsity Sports (Includes $155,218.00 -Soccer

and Wrestling Teams) 558,984

Alternative High School 1,395,594

Buffalo Evening High School 113,142

17 - Security Officers (0) 288,356

25 - Attendance Teachers (0) 701,114

50 - Guidance Counselors (5) 1,408,250

9 - Social Workers (7) 251,397

11- Psychologists (13) 319,957

24.2 - Librarians 581.018

40 Elementary Physical Education Teachers 1,033,880

25 - Elementary Art Teachers 585,900

25 - Elementary Music Teachers 596,875

14 - Senior Subject Social Studies Teachers 366,464

15 - Second year Math Teachers 329,595

62.5 - Pre-K Teachers 1,066,687

62.5 - Teacher Aides 540,812

36 - Art, Music and Physical Education

(Primary) 877,896

7 /

ae a ee een Bo Wind ita ORR OS ite hai ke .

83a

APPENDIX (iv)—Excerpts of trial exhibits

TEACHERS (TO INCREASE CLASS SIZE)

30 Teachers 544,320

60 Teachers 1,096,902

90 Teachers 1,658,232

120 Teachers 2,226,636

150 Teachers 2,801,898

ADMINISTRATION (Instructional)

23 Central Office Teachers Assigned 653,895

8 Integration Home-School Coordinator 217,373

20 Clerks 298,520

20 Helping Teachers (Schools) 468,720

1 Coordinator 29,634

6 CLIME Teachers - eliminates Math

clinicians in each Board District 131,838

10 Reading Specialists - eliminates Reading

specialists services in all schools 228,160

Central Office Administrators

Assistant Superintendents, Directors,

Supervisors, Project Administrators 1,391,324

Above salaries do not include pensions.

je) eas’ TOPE Se a Te Se Arie

“

84a

APPENDIX (iv)—Excerpts of trial exhibits

EXCERPTS OF EXHIBIT 23 ANNEXED TO

FOREGOING ANSWERING AFFIDAVITS OF

RAICHLE, GRIFFIN AND PLANAVSKY.

11] AGREEMENT BETWEEN

THE BOARD OF EDUCATION

OF THE CITY OF BUFFALO

AND

THE BUFFALO TEACHERS FEDERATION

THIS AGREEMENT entered into this 8th day of

September, 1981, as amended, by and between THE

BOARD OF EDUCATION OF THE CITY OF

BUFFALO, hereinafter sometimes called the BOARD“,

and THE BUFFALO TEACHERS FEDERATION,

hereinafter sometimes called the FEDERATION“.

WITNESSETH:

WHEREAS, the Federation, as the exclusive

representative of the teaching personnel of the Board,

has all of the rights and privileges granted to it by the

Taylor Law; and

WHEREAS, the Board and the Federation recognize

and declare that providing quality education for the

children of the City of Buffalo is their mutual aim; and

WHEREAS, the parties have agreed to negotiate in

good faith with respect to the salaries, welfare provisions,

teaching conditions, hours, and certain matters of

educational policy for all of the teaching personnel

employed by the Board; and

WHEREAS, the parties, following extended and

deliberate negotiations, have reached certain

understandings which they desire to memorialize for the

ae Fa ͤ ͤ v 7

of the public:

85a

APPENDIX (iv)—Excerpts of trial exhibits

NOW, THEREFORE, in consideration of the following

mutual covenants, it is hereby agreed as follows:

ARTICLE I

Statement of Recognition

A. The Board hereby recognizes the Federation as the

exclusive representative of all department chairpersons,

classroom teachers, guidance counselors, school social

workers, attendance teachers, school psychologists,

reading teachers, ESEA teachers, librarians, speech

therapists, helping teachers, administrative assistants,

teachers-in-charge, reading specialists, day school Adult

Learning teachers and any other teachers paid on the

176 APPENDIX D

Class Size

The Buffalo Teachers Fedeation and the District,

recognizing the educational value of class size

limitations, but mindful of the Board of Education’s

financial dependency on the City of Buffalo, hereby agree

for the life of this contract:

1. The class limitations shall not exceed 33 for

the primary grades and 35 for Grades 4-6.

2. That the class size limitation for regular

secondary class loads shall be 170.

Should the level of funding for the 1982-83 school year

be inadequate to maintain the above stated limits, the

Federation and the District shall meet to determine

appropriate limits for that school year.

86a

APPENDIX (iv)—Excerpts of trial exhibits

EXCERPT OF CITY’SCHART OF O & M BUDGET

INTEGRATION REQUESTS AND APPROPRIATION

Amount Amount Increase

Integration Record Requested Requested Requested

Program: Reference For 1981-82 For 198283 For 1982-83

The Board's (A. 107;

entire basic R. 38—Ex. A).

Desegregation

Program $ 16,063,478 $ 18,147,725 $2,084,247

Integration (A. 108-9, 111;

Phase II Ix R. 38—Ex. D).

Program 3,116,390 3,444,868 328,476

Handicapped (A. 108;

Program R. 38—Ex. B).

(mandated by

N.Y. State

Comm. of Ed.) ---- 1,570,950 1,570,950

Teachers (A. 108;

formerly R. 38—Ex. C). Not part

under Fed. of Board's

ESAA Program ---- (5,490,248)* request”

Total Integration Request:

Excluding Handicapped:...... $ 19,179,868 $ 21,592,593

Including Handicapped: ...... $ 19,179,868 $ 23,163,543

Increase in 1982-83 Integration Requirements

over 1981-82 Integration Requirements:

Excluding Handicappedl .. $2,412,723 i

Including Handicapp ed 23.983.873

City’s (A. 157-8; |

O AM Budget R. 38—Exs. 4, 8

Appropriation 12 & 13). 141.242.608 _ 149,129,822 a

Increased Total (1982-83 over 1981-82): $7,887,219

87a

APPENDIX (v)

Text of pertinent New York Statutory Provisions

[404] N.Y. EDUCATION LAW

§2576. Annual estimate

1. The board of education in each city having a

population of less than one million shall prepare annually

an itemized estimate for the current or ensuing fiscal

year of such sum of money as it may deem necessary for

the purposes stated in this section, after crediting

thereto the amount anticipated in the next

apportionment of school funds from the state and the

estimated amount to be received from all other sources.

Such itemized estimate in such cities shall be filed at

such times and in such manner as city departments or

officers are required to submit estimates for such

departments or officers. The board of education in each

other city shall prepare annually an itemized estimate for

the ensuing fiscal year and file the same on or before the

first day of September. Such estimates shall be for the

following purposes:

a. The salary of the superintendent of schools,

associate, district or assistant or other superintendents,

examiners, directors, supervisors, principals, teachers,

lecturers, special instructors, auditors, medical

inspectors, nurses, attendance officers, clerks, custodians

and janitors and the salary, fees or compensation of all

other employees appointed or nployed by said board of

education.

b. The other necessary incidental and contingent

expenses, including ordinary repairs to buildings and the

purchase of fuel and light, supplies, textbooks, school

apparatus, books, furniture and fixtures and other

articles and service necessary for the proper

88a

APPENDIX (v)—Text of pertinent New York

Statutory Provisions

maintenance, operation and support of the schools, li-

[405] braries and other educational, social or recreational

affairs and interests under its management and direction.

The provisions of this section in regard to the purchase

of light shall not apply to a city having a population of

one million or more.

c. The remodeling or enlarging of buildings under its

control and management, the construction of new

buildings for uses authorized by this chapter and the

furnishing and equipment thereof, the purchase of real

property for new sites, additions to present sites,

playgrounds or recreation centers and other educational

or social purposes, and to meet any other indebtedness or °

liability incurred under the provisions of this chapter or

other statutes, or any other expenses which the board of

education is authorized to incur. Nothing contained in

this chapter shall prevent the financing, in whole or in

part, of any expenditure enumerated in this subdivision

pursuant to the local finance law.

2. In the city school districts of Syracuse, Rochester

and Yonkers such estimate shall be filed with the mayor

or city manager. Such officer shall place such estimate

before the board of estimate and apportionment or other

similar body at the same time and in the same manner as

estimates from city departments or officers are placed

before said board or body, and such estimate shall

thereafter be subject to the same consideration, action

and procedure as all other estimates from city

departments or officers. The said board or body may

increase, diminish or reject any item contained in said

estimate, except for fixed charges for which the city is

liable. When such estimate is adopted, the said board or

body shall file it with the common council.

89a

APPENDIX (v)—Text of pertinent New York

Statutory Provisions

[3. Repealed.]

4. In a city which had, according to the federal census

of nineteen hundred forty, a population of four hundred

thousand or more but less than one million such estimate

shall be filed with the officer authorized to receive other

department estimates and the same acted on by such

officer and by the council of such city in the same

manner and with the same effect as other department

estimates. The council is also authorized, in its

discretion, to include in such budget a sum for any of the

purposes enumerated in paragraph c of subdivision one

of this section, and any further amount for such

purposes as may be authorized by a tax election held in

such city pursuant to the provisions of this chapter.

After the adoption of such budget the council shall cause

the amount thereof to be included in the tax and

assessment roll of the city and the same shall be

collected in [406] the same manner and at the same time

as other taxes of the city are collected, and placed to the

credit of the board of education.

5. In a city which had, according to the federal census

of nineteen hundred forty, a population of one million or

more such estimate shall be filed with the mayor. If the

total amount requested in such estimate shall be

equivalent to or less than an amount equal to the

average proportion of the total expense budget of such

city, as amended, appropriated for the purposes of the

city school district of such city in the three fiscal years

of such city immediately preceding the year for which

said estimate is filed, the city shall appropriate such

amount. If the total amount contained i

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