# Petition — Griffin v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0808%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 936 ## 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. 1 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 ag Yo 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 I 2 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 ‘ee ye 3 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 = * N 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; . ...” i) 5 “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 be 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 FF me 7 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. 8 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.” 9 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 . 10 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). 2 11 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: 23 12 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 1 * * — 3 ey 13 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). 14 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). a 3 15 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). ~ 16 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, “ * —— 17 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). 12 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 19 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 20 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). i ge f 5 i f 5 f 21 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, 22 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: 8 23 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. 24 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. 25 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, V. 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 2a 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. 3a 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 4a 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. 5a 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 6a 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 7a 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 A A N ; 8a 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. 9a 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. — 2 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 1 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”, 1 * = * "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, v. 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. JS *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. a 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 . 3 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 — 4 eis : 8 1 . e . 8 ren 0 a eet A t* K 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.’ i uh Hi i 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 4 i : i : 7 i 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 * f * 4 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 perc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0808%3A1. Public record. Not legal advice.