Appendix — Yonkers Board of Education v. United States

Supreme Court, U.S,

APR 12 08

No -——-—-—

JOSEPH F. SPANMIOL, JR,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

CITY OF YONKERS and

YONKERS COMMUNITY DEVELOPMENT AGENCY,

” Petitioners,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STANLEY R. STRAUSS REX E. LEE *

MICHAEL W. SCULNICK CARTER G. PHILLIPS

VEDDEK, PRICE, KAUFMAN, MARK D. HOPSON

KAMMHOLZ & DAY SIDLEY & AUSTIN

One Dag Hammarskjold Plaza 1722 Eye Street, N.W.

New York, New York 10017 Washington, D.C. 20006

(212) 223-1880 (202) 429-4000

PAUL W. PICKELLE

Joseru E. St. ONGE

Corporation Counsel

City of Yonkers

Yonkers City Hall

Yonkers, New York 10701

(914) 964-3205

Counsel for Petitioners

April 25, 1988 * Counsel of Record

eee omnes

Wrisonw - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

APPENDIX A:

Opinion of the United States Court of Appeals for

the Second Circuit .................. pect any in TA nate Rote a Nae

APPENDIX B:

Opinion of the District Court (S.D.N.Y., Novem-

ber 20, 1985) (liability opinion) —.... pee Seepeey: ;

APPENDIX C:

Opinion of the District Court (S.D.N.Y., May 13,

1986) (school remedy opinion) —...............00000..........

APPENDIX D:

Supplemental Findings of Fact and Opinion of

the District Court (S.D.N.Y., May 28, 1986) (hous-

I a a cdintdinidtedeatns

APPENDIX E:

Supplemental Order Relating to the Funding of

the School Remedy Plan (S.D.N.Y., July 1, 1986)..

Page

la

683a

755a

763a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 832, 833, 834 August Term, 1986

(Argued: February 9, 1987 Decided: )

Docket Nos. 86-6136, 86-6138, 86-6156

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

YONKERS BRANCH—NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, et al.,

Plaintiffs-Intervenors-A ppellees,

-VY,-

YONKERS BOARD OF EDUCATION ; CITY OF YONKERS; and

YONKERS COMMUNITY DEVELOPMENT AGENCY,

Defendants-A ppellants.

CITY OF YONKERS; and YONKERS COMMUNITY

DEVELOPMENT AGENCY,

Third Party, Plaintiffs-A ppellants,

-Y¥.-

UNITED STATES DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT; and SECRETARY OF HOUSING AND

URBAN DEVELOPMENT,

Third Party, Defendants-A ppellees.

Oe

2a

Before: KEARSE, PRATT,* and MINER, Circuit

Judges.

Appeals from a judgment of the United States Dis-

trict Court for the Southern District of New York,

Leonard B. Sand, Judge, finding the City of Yonkers

liable for intentional racial segregation in subsidized

housing and public schools, finding the Yonkers Board

of Education liable for intentional racial segregation in

public schools, see 624 F. Supp. 1276 (1985), and order-

ing, inter alia, construction of 200 units of subsidized

family housing outside of Southwest Yonkers, see 635

F. Supp. 1577 (1986), and desegregation of school sys-

tem, including a system-wide voluntary magnet school

program to be funded by the City and implemented by

the Board, see 635 F. Supp. 1538 (1986).

Affirmed.

CLINT BoLicK, Washington, D.C. (William Bradford

Reynolds, Assistant Attorney General, Walter W. Bar-

nett, Joshua P. Bogin, Marie K. McElderry, United

States Department of Justice, Washington, D.C., on the

brief), for Plaintiff-A ppellee.

MICHAEL H. SUSSMAN, Yonkers, New York (Sussman

& Sussman, Yonkers, New York, on the brief), for

Plaintiffs-Intervenors-A ppellees.

JOHN H. DUDLEY, JR., Detroit, Michigan (John B.

Weaver, Mark T. Nelson, Butzel Long Gust Klein & Van

Zile, Detroit, Michigan, on the brief), for Defendant-

Appellant Yonkers Board of Education.

REx E. LEE, Washington, D.C. (Carter G. Phillips,

Mark D. Hopson, Sidley & Austin, Washington, D.C.,

Gerald S. Hartman, Michael W. Sculnick, Thomas G.

* Judge Winter, originally a member of the panel, subsequently

recused himself. Judge Pratt was appointed to the panel pursuant

to Local Rule § 0.14(b).

3a

Abram, Vedder, Price, Kaufman, Kammholz & Day, New

York, New York, Jay B. Hashmall, Corporation Counsel

for the City of Yonkers, Yonkers, New York, on the

brief), for Defendants-A ppellants-Third-Party-Plaintiffs-

Appellants City of Yonkers and Yonkers Community De-

velopment Agency.

M. WILLIAM MuNNOo, New York, New York (James

F. X. Hiler, Ronald A. Nimkoff, Heidi B. Goldstein,

Seward & Kissel, New York, New York, on the brief),

for Joseph Galvin, Alfred T. Lamberti, Paul Weintraub,

Frank Furgiuele, Joseph M.A. Furgiuele, Jerald Kat-

zenelson and Salvatore Ferdico, and The Crestwood Civic

Association, Inc. as Amicus Curiae on Behalf of Defend-

ants-A ppellants-Third-Party-Plaintiffs-A ppellants.

PUERTO RICAN LEGAL DEFENSE & EDUCATION FUND,

Inc., New York, New York (Linda Flores, Jose Luis

Morin, Kenneth Kimerling, New York, New York, of

counsel) filed a brief for the Organization of Hispanic

Parents of Yonkers as Amicus Curiae on Behalf of Plain-

tiff-Appellee and Plaintiffs-Intervenors-A ppellees.

HENRY MARK HOUZER, Brooklyn, New York (Daniel J.

Popeo, George C. Smith, Washington Legal Foundation,

Washington, D.C., of counsel) filed a brief for the Save

Yonkers Federation and the Coalition of Concerned

Yonkers Citizens on Behalf of Defendants-Appellants-

Third-Party-Plaintiffs-A ppellants.

KEARSE, Circuit Judge:

Defendants City of Yonkers (the “City”), Yonkers

Community Development Agency (‘“‘CDA’’), and Yonkers

Board of Education (the “Board’’) appeal from a judg-

ment entered in the United States District Court for the —

Southern District of New York following a trifurcated

bench trial before Leonard B. Sand, Judge, holding the

City liable for racial segregation of housing in Yonkers,

holding both the City and the Board liable for racial

4a

segregation of the Yonkers public schools, and ordering

each defendant to take steps to remedy the segregation

for which it was found liable. The district court held

that the City, by its pattern and practice of confining

subsidized housing to Southwest Yonkers, had intention-

ally enhanced racial segregation in housing in Yonkers,

in violation of Title VIII of the Civil Rights Act of 1968

(“Title VIII” or the “Fair Housing Act”), 42 U.S.C.

$ 3601 et seg. (1982), and the Equal Protection Clause

of the Fourteenth Amendment to the United States Con-

stitution. The court held that the actions of the Board,

including its decisions relating to individual schools, fac-

ulty assignments, and special education, and its selective

adherence to a neighborhood-school policy in light of the

City’s segregative housing practices, combined with its

failure to implement measures to alleviate school segre-

gation, constituted intentional racial segregation of the

Yonkers public schools, in violation of Titles IV and VI

of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et

seq. (“Title IV”) and § 2000d et seg. (“Title VI")

(1982), and the Equal Protection Clause. The court held

that the City had contributed to the segregation of the

Yonkers public schools by means of, inter alia, its segre-

gative housing practices, and that its segregative intent

was revealed by the foreseeable effects of its housing

practices, its direct involvement with certain schools, and

the mayor’s appointments to the Board of persons firmly

committed to maintaining the segregated state of the

schools that both reflected and enhanced the segregated

residential patterns. The court thus found the City li-

able for intentional racial segregation of the schools in

violation of Title IV and the Equal Protection Clause.

To remedy the segregation in housing, the district court

ordered principally that the City provide sites for 200

units of public housing in nonminority areas; the order

stated that if the City did not identify sites the court

would do so. The court ordered that the City reallocate

ee |

5a

at least a substantial portion of its federal housing grant

funds for the next several years to a fund to be used to

foster the private development of low- and moderate-

income housing in a way designed to advance racial

integration.

To remedy the school segregation, the court ordered the

Board to take steps toward the desegregation of each

school within specified numerical parameters by the

1987-88 school year. To this end, the Board was ordered

to create magnet schools and implement a program in

which it would assign each student to a school from among

those nominated by his or her parents. The court ordered

the City to fund the school desegregation plan.

On appeal, the City and the Board raise a variety of

objections to the district court’s rulings on liability and

remedies. The City contends principally that the court

(1) improperly imposed an affirmative duty on the City

to build public housing outside of the City’s predominantly

minority neighborhoods; (2) erroneously found (a) that

Yonkers’s segregated housing patterns were the result of

the City’s intentional discrimination, and (b) that the

City’s housing decisions were a cause of school segrega-

tion; and (3) improperly considered the mayor’s Board

appointments in holding the City liable for school segrega-

tion. The Board contends principally that (1) the court

erred in considering the City’s deliberately segregative

housing practices as a factor relevant to the Board’s lia-

bility for school segregation, and (2) the court’s finding

of segregative intent on the part of the Board was clearly

erroneous.

We conclude that the district court properly applied the

appropriate legal principles, that its findings of fact are

not clearly erroneous, and that its remedial orders are

within the proper bounds of discretion. We therefore

affirm the judgment in all respects.

6a

A. BACKGROUND

The present litigation, unique in its conjoined attack

on the actions of state and municipal officials with respect

to segregation in both schools and housing, brings into

question acts, omissions, policies, and practices of the City

and the Board of Education over five decades. The case

was commenced by the United States in December 1980,

with the filing of a complaint alleging, inter alia, that the

City and CDA had intentionally engaged in a pattern of

selecting sites for subsidized housing that perpetuated

and aggravated residential racial segregation, and that

the City and the Board had, by their intentionally dis-

criminatory acts and omissions, caused and perpetuated

racial segregation in the schools. In June 1981, the

Yonkers Branch of the National Association for the Ad-

vancement of Colored People (“NAACP”) and an individ-

ual minority student, by her next friend, were allowed to

intervene as plaintiffs on behalf of themselves and all

othters similarly situated, see 518 F. Supp. 191, 201-03

(S.D.N.Y. 1981), and the action was subsequently certi-

fied as a class action.

Trial on the liability issues was held over a period of

some 14 months in 1983 and 1984. During the 90 trial

days, evidence was heard from 84 witnesses; depositions

of 38 additional witnesses were introduced; and thousands

of documents were received in evidence. In November

1985, in an exhaustive and well documented opinion re-

ported at 624 F. Supp. 1276-1553, Judge Sand found the

City and CDA liable for housing segregation and found

the City and the Board liable for school segregation. Fol-

lowing hearings as to the appropriate remedies for these

violations, the court ordered system-wide, comprehensive

remedies. See Parts A.I.C. and A.II.G. below.

In view of the challenges made in these appeals to the

sufficiency of the evidence to support the district court’s

findings of intentional discrimination and the contentions

that the remedies ordered are overly broad, we summarize

el

Ta

at some length the evidence supporting both the findings

and the imposition of system-wide remedies.

I. HOUSING SEGREGATION

The City of Yonkers, New York, is a section of West-

chester County roughly 4 to 6 miles long by 3 to 3% miles

wide, just north of New York City’s Bronx County. For

purposes of this suit Yonkers is regarded as consisting

of three basic geographic areas, referred to as East

Yonkers, Northwest Yonkers, and Southwest Yonkers.

SouthwestYonkers, which comprises less than one-quarter

of the City’s land mass, is the City’s most densely popu-

lated and urban area. Characterized as containing the

“downtown” or “inner city” area, it is the only section

having any significant amount of industrialization.

At trial, there was little dispute that, at least as of

1980, when this suit was commenced, the residents of

Yonkers were largely segregated by race, with the minor-

ities concentrated in Southwest Yonkers. United States

Census figures for 1980 showed that minorities, defined

as blacks or hispanics, made up 18.8% of Yonkers’s total

population; minorities made up 40.4% of the population

of Southwest Yonkers but only 5.8% of East and North-

west Yonkers. Southwest Yonkers, while housing only

37.5% of Yonkers’s total population, housed 80.7% of

Yonkers’s minority population.

The minority population of Yonkers grew to 18.8% in

1980 from 2.9% in 1940. During this period, the concen-

tration of minorities in Southwest Yonkers increased as

follows:

Minority

Total Minority Percentage

Minority Percentage Outside of

Percentage of Southwest Southwest

1940 2.9 3.5 2.0

1950 3.2 4.5 1.6

1960 4.5 6.7 2.8

1970 10.2 19.8 3.9

1980 18.8 40.4 5.8

8a

Concentration has also been evident within the South-

west itself. In 1940, when minorities constituted only

2.9% of Yonkers’s total population, two of the 10 census

tracts in Southwest Yonkers had minority populations

between 10% and 50%. In 1980, when minorities con-

stituted 18.8% of Yonkers’s total population, four of the

10 Southwest tracts had minority populations between

20 and 50%, and five had minority populations of more

than 50%. A census-tract map showing the 1980 concen-

trations is attached to this opinion as Appendix A.

Northwest Yonkers and East Yonkers contained 14

census tracts in 1980, divided into 32 sub-tracts. Of the

32, only two had minority populations of 7% or more.

One, located in Northwest Yonkers, had a minority popu-

lation of 28.6%, most of whom lived in a neighborhood

abutting a Southwest Yonkers tract that had a minority

population of more than 50%. The other, a neighborhood

in East Yonkers known as Runyon Heights, had a mi-

nority population of 79.8%. Runyon Heights was a

middle-income community founded early in the century

on a large tract of land owned by a state senator who

regularly brought busloads of black residents from Harlem

for picnics at which he auctioned off parcels of land to

them. Runyon Heights is bounded to the north by a

white neighborhood called Homefield. The original deeds

for many Homefield properties contained restrictive cove-

nants prohibiting the sale of such properties to minorities,

and as Runyon Heights developed, the Homefield Neigh-

borhood Association purchased and maintained a four-foot

strip of land as a barrier between the streets of the two

neighborhoods. “To this day, Runyon Heights streets

terminate in a dead-end just below this strip.” 624 F.

Supp. at 1410.

The current location of low-income subsidized housing

in Yonkers corresponds largely to its concentrations of

minority residents. As of 1982, the City had 6,800 units

of subsidized housing; of these, 6,566 units, or 96.6%,

9a

were located in or adjacent to Southwest Yonkers. A map

showing the City’s subsidized housing sites is attached

to this opinion as Appendix B. Only two subsidized hous-

ing projects were not in or adjacent to Southwest Yonkers.

One was a family project located in Runyon Heights; the

other, also in East Yonkers, was a project for senior citi-

zens, the majority of whose residents had been expected

to be, and were, white. Block-by-block maps for 1950-

1980, showing more detail than the census tracts and sub-

tracts, revealed that all sites approved by the City for

low-income or low-and-middle-income family housing were

in or very near neighborhoods that already had high

percentages of minority residents.

Given the facts as to Yonkers’s segregated housing

patterns, most of the trial evidence on housing issues

concerned whether the City’s subsidized housing decisions

bespoke a racially segregative intent.

A. Evidence as to the City’s Subsidized Housing

Decisions

During the pertinent periods, Yonkers’s governing body

was its City Council (“Council’’), comprising the mayor,

elected in a City-wide election, and 12 councilmen, each

elected by one of the City’s 12 wards. The Yonkers Plan-

ning Board (“Planning Board”) consisted of seven non-

paid citizens appointed by the mayor. The Yonkers

Municipal Housing Authority (“MHA”), a public corpo-

ration organized in the 1930’s pursuant to New York

State’s Public Housing Law, was the entity authorized

to propose, construct, and operate public housing in

Yonkers.

Under state law, federal funding could not be requested

for a site proposed by MHA until the site was either (1)

approved by a majority vote of both the Planning Board

and the Council, or (2) approved by at least three-

quarters of the Council if less than a majority of the

Planning Board approved. According to the testimony of

10a

one member of the Council, the opposition of any council-

man to a project proposed for his own ward was routinely

honored by the other Council members.

1. Housing Decisions in 1948-1958

Prior to 1949, the City had erected two housing proj-

ects, both in Southwest Yonkers. The second came about

apparently as community leaders’ response to concerns

expressed in the late 1930’s about difficulties blacks were

encountering in obtaining decent and affordable housing

in the private market. Thus, “the City resolved to build

a public housing project ‘for Negroes’ and set about find-

ing a suitable site on which to do so... . Various sites

were rejected on the ground that the level of minority

concentration there was not sufficiently high, and the site

eventually selected in 1940 was in one of the most heavily

minority areas of Southwest Yonkers.” 624 F. Supp. at

1312.

In 1949, pursuant to the National Housing Act of

1949 (“1949 Housing Act’), ch. 338, 63 Stat. 413

(codified, as amended, at 42 U.S.C. $1441 et seg.

(1982)), which provided federal funds for urban re-

newal, the City applied for the reservation of funds to

build 750 units of low-income housing. Its application

was approved, but it was not to receive the funds until

it had officially designated specific sites and these were

approved by the federal Public Housing Administration

(a predecessor of the United States Department of Hous-

ing and Urban Development (collectively “HUD”)). The

City’s initial deadline for submitting approved sites was

August 31, 1950. In February 1950, MHA began propos-

ing sites for the construction of these units.

MHA’s first proposed site was a vacant, largely City-

owned, parcel of land located in an overwhelmingly white

area of Northwest Yonkers. The City’s ownership and

the nonuse of the land would have made it a relatively

lla

inexpensive building site and avoided any residential dis-

placement and relocation problems. Neighborhood groups,

however, swiftly opposed designation of this site, stating

that the new housing would be occupied by persons com-

ing from slum areas and that the old slums would con-

tinue to exist. The groups recommended clearance of the

existing slum areas and the construction of new housing

on those sites. The Planning Board rejected MHA’s pro-

posed site, citing the parcel’s nonconformity with plan-

ning standards such as sufficiency of school and shopping

facilities.

The next two sites proposed by MHA in 1950 were

located in white neighborhoods of Southwest Yonkers.

Initially, the councilmen of the two wards in which these

sites were located recommended approval. As to one site,

however, residents of the area appeared at a Planning

Board meeting to express their opposition on the ground

that the terrain was irregular and that the presence of

such housing would tend to harm property values in the

area; their councilman withdrew his support for the

project, and the site was not approved. The other pro-

posed site was initially approved by both the Planning

Board and the Council. However, when an attempt was

made to enlarge the approved area, community groups

opposed both the enlargement and the original site desig-

nation, principally citing the likely deterioration of prop-

erty values. Eventually, the councilman from this ward

withdrew his support, the Planning Board voted unani-

mously to disapproved the requested expansion, and MHA

abandoned its proposal for even the originally approved

project.

By December 1950, the City had approved just one

project, to which there had been no community opposition,

for 274 units. Its site, previously zoned for industrial

use, was in a section of Southwest Yonkers having one of

the highest concentrations of minorities.

12a

After all of the other MHA-proposed sites had been

rejected, a federal official warned that the City would lose

its reservation of funding for the remaining 476 units

unless it acted to put additional units into development

immediately. The City’s response was to expand the

previously approved Southwest Yonkers project to 415

units, notwithstanding a prior Planning Board recom-

mendation that no more than 250 units be placed on any

site.

In the period 1951 to 1953, MHA proposed 9 more

sites for subsidized low-income housing in predominantly

white neighborhoods, four in Southwest Yonkers and five

in Northwest and East Yonkers. Eight of these proposals

prompted vigorous opposition by community civic and

social groups, who sent petitions and resolutions to the

Planning Board and the councilmen, contending that such

projects in their areas would “lead to the eventual de-

terioration of the surrounding community by the element

which they attract.” None of MHA’s proposed sites was

approved by the City.

In the meantime, between 1,200 and 3,000 applications

had been received for the 415 units that had been ap-

proved. Notwithstanding recognition by the Planning

Board and the public of the “desperate need” for addi-

tional subsidized housing, no other sites were approved.

The City thereby lost allocation of federal funds for the

remaining 335 units of its original 750-unit allocation

under the 1949 Housing Act.

In 1956, the City was able to renew its reservation of

funds for 335 units, and MHA promptly proposed four

new sites. One of these was quickly rejected because it

was in the path of a proposed highway. The remaining

three prompted strong community opposition. Two of

these, including one described by HUD as “extremely

desirable” for subsidized housing, were in all-white neigh-

borhoods of East Yonkers. The residents of both areas

13a

vigorously voiced their opposition at rallies, in petitions,

by telegram, and by attending Council meetings in num-

bers ranging from 400 to 1,000. The City rejected these

two sites.

The fourth proposed site was in Runyon Heights, the

predominantly black community in East Yonkers. Repre-

sentatives of the neighborhood opposed the building of

low-income housing there on the ground that predomi-

nantly white communities had successfully opposed hav-

ing such projects in their neighborhoods and Runyon

Heights should not be the only community in which such

a project would be built. They contended that it would be

preferable to integrate Runyon Heights into the com-

munities surrounding it and that the placement of low-

income housing in Runyon Heights would have the con-

trary effect of enhancing its racial isolation. The City

rejected this site as well.

At least four other sites for low-income housing were

formally considered in 1957; none was approved by the

City.

In 1958, MHA proposed five sites, four new ones plus

one that had previously been rejected because of conflict-

ing highway plans. An MHA official described the sites

to the Planning Board as “ ‘the least objectionable’ of

those surveyed” but nonetheless predicted that there would

be “‘a lot of objections on the grounds of race or age

in certain sites.’ 624 F. Supp. at 1299.

Two of MHA’s proposed sites in Southwest Yonkers—

one in a predominantly white area, and the other in a

predominantly minority area—were disapproved by the

Planning Board because they lay in the paths of pro-

posed highways. The Council, however, by a three-fourths

vote, overrode the Planning Board’s opposition to these

two sites; it approved family housing units for the site

in the predominantly minority neighborhood and senior

l4a

citizen units for the site in the predominantly white

neighborhood.

The other three sites proposed by MHA in 1958 were

approved by the Planning Board. Two of these sites were

in overwhelmingly white neighborhoods, one in East Yon-

kers and described by the City’s Planning Director as

“ideal” in terms of transportation, shopping, recreation,

and schools, and the other in Southwest Yonkers; the

third site was in Runyon Heights. All met with opposi-

tion from the residents of their respective neighborhoods.

From the two white areas, taxpayer and civic groups

wrote their councilmen si tly before the Council was to

vote, describing their general opposition as follows:

We personally prefer a public referendum with

time to acquaint each and every citizen with the full

facts on public housing. Where will these tenants

come from? How will we provide schools? How

much will it cost us over the years? What safe-

guards do we have against our having to absorb the

overflow from Puerto Rico or Harlem? -

The Council voted to reject the sites proposed for the

-white neighborhoods. It approved the project proposed

for Runyon Heights.

Thus, in 1958, the City finally approved sufficient

family housing sites to use the remainder of the 750

units that had been allocated to it for 1949. All 750

units were constructed in neighborhoods of high minority

concentration; the City had rejected all sites proposed

for family housing in any neighborhood not already hav-

ing a high minority concentration.

2. Housing Decisions in 1958-1967

For the next several years, MHA and the City con-

centrated on finding sites for senior citizen housing.

The councilmen and the public equated senior citizen

15a

housing with housing for whites, and in fact, few of the

residents of Yonkers’s senior citizen housing projects

have been minorities.

Such housing, so long as not denominated “low-income,”

was not perceived as being for minorities and met with

little or no community opposition. In 1961, for example,

the City approved a senior citizen housing site for 300

units in a minority neighborhood of Southwest Yonkers;

though the site abutted a predominantly white neighbor-

hood, the only opposition came when expansion of the

project was proposed and residents complained of area

overcrowding. In 1963, however, when MHA proposed

eight senior citizen sites, four in East Yonkers and four

in white neighborhoods of Southwest Yonkers, a_ local

news article, headlined “8 Possible Sites Picked for Low-

Rent Housing,” reported that these locations might also

be considered to house families displaced by urban re-

newal. Public protests followed, including a letter from

a community association representing more than 2,000

families expressing concern that “[t]o penetrate the com-

munity with subsidized housing would tend to deteriorate

realty values and adversely affect the character of th[e]

community.” Six of the proposed sites were withdrawn.

In 1964, the City sought federal funds to begin a new

stage of urban renewal. When its application was re-

jected due to its poor record with respect to building

subsidized housing for displaced residents, the City be-

gan once again to look for suitable sites for family hous-

ing. In 1965, MHA proposed eleven sites, including five

in East Yonkers or white areas of Southwest Yonkers

and four in minority areas of Southwest Yonkers. Pro-

tests and petitions were lodged against the five white-

area sites on grounds of potential overcrowding and the

effect on property values. A news report quoted one

resident of East Yonkers as complaining that the City

wanted to put in her neighborhood ‘“ ‘everything [her

family hadj tried to get away from’” by moving from

16a

urban areas to East Yonkers, and another resident as

saying “ ‘it wasn’t that she didn’t believe in racial or

social or economic integration . . . but [that] those

people from Yonkers would feel so out of place here...

it would not be fair to them.’” 624 F. Supp. at 1303.

The Planning Director supported the East Yonkers sites;

the Planning Board approved only the four sites that

were in minority areas of Southwest Yonkers.

These four minority-area sites were then approved by

a committee of the Council and one was approved by the

Council itself. Before any of the sites could be formally

submitted to HUD, however, HUD wrote the City sug- -

gesting “scattered sites” instead of site concentration in

Southwest Yonkers because “[r]elocation feasibility, even

though quantitatively adequate, falls short of acceptabil-

ity if racial containment will result from the proposed

provision of relocation housing.” In response, a subcom-

mittee of CDA, the coordinating agency for all of Yon-

kers’s urban renewal projects, compiled a list of 19 sites

scattered throughout Yonkers; however, when this list

was made public it caused “alarm in the community.”

According to one news report, at a meeting of Yonkers

housing agencies, “fear was expressed by several speak-

ers that the public is not yet ready to accept the federal

government’s plan for racial and economic integration on

a citywide basis.” None of the 19 sites was approved.

In 1967, the Council finally approved three sites from

among those proposed by MHA in 1965. Despite the

Council’s awareness of the federal preference for scat-

tered sites, the three sites approved were located in

densely occupied, heavily minority sections of Southwest

Yonkers. HUD refused to approve the sites.

3. Housing Decisions in 1968-1974

During the period 1968 to 1974, the City turned to

other federal programs for subsidized housing. CDA

sought out private sponsors for a combination of low-

17a

and-moderate-income family projects; it focused its ef-

forts solely on sites in Southwest Yonkers.

Proposed sites that were in the Southwest’s predomi-

nantly white areas drew heated community opposition.

Notwithstanding the view expressed by former council-

man Edward O’Neill that race played no role in site

selections—because “ ‘nothing was ever expressed for the

record to indicate that it did play a role,’” 624 F. Supp.

at 1311—-several City officials testified that race was a

factor. Some stated that their constituents tended to

equate low-income housing with minorities. Others “pub-

licly identified the issue before them as being whether

the residents of Yonkers were ‘ready’ for the economic

and raical integration being urged upon the City” by

HUD and groups such as the NAACP and the Council of

Churches. /d. at 1310.

CDA’s director, Walter Webdale, testified to his view

that the high level of emotionalism exhibited at public

meetings indicated that residents were concerned about

far more than mechanical matters such as the size of the

street or the availability of public utilities, and that

“racial considerations d[id] come into play.” He gave

as an example the reaction to a site proposal for the

northern end of Southwest Yonkers which, though just

a few blocks from a predominantly minority area, was

immediately surrounded by a white neighborhood. A

Catholic Church group, led by their pastor, opposed use

of this site for family housing and urged that it be used

for a senior citizen project instead. The group told Web-

dale they opposed family housing because they “feared

an influx of blacks into the neighborhood.”

Another proposed site called Rockledge, located in a

predominantly white area of the Southwest, was initially

supported by the ward councilman, Dominick Iannacone.

Iannacone testified, however, that he received ‘‘flack”

from his constituents. Some complained about the loss

18a

of the proposed site as a parking facility; others, “who

knew him better,” stated that “they didn’t want the hous-

ing because they didn’t want any blacks there.” 624

F. Supp. at 1321. Thereafter, concerned that he would

not be reelected if he supported Rockledge, Iannacone

withdrew his support, citing his constituents’ concern

about loss of parking. Using the informal veto power en-

joyed by any councilman in whose ward a project was

proposed, he “buried” the matter in a Council committee

of which he was chairman. At trial, he “acknowledged

that his publicly stated reasons for opposing the project

were pretextual, and that his opposition in fact was in

response to his constituents’ racially influenced opposi-

tion.” Jd. at 1322.

In the end, CDA’s efforts resulted in the construction

of eight low-and-moderate-income family projects; all

were in Southwest Yonkers and all were in or close to

that area’s predominantly minority neighborhoods.

Other City activities included consideration in 1969 of

subsidized housing for the relocation of 1,000 families

from Southwest to other parts of Yonkers; the City’s goal

was to ensure plant expansion space in Southwest Yon-

kers for one of the City’s largest employers, which threat-

ened to move out of Yonkers. A private consulting firm

surveyed 98 possible sites, 76 of which were located in

East or Northwest Yonkers. A City Council agenda

noted that consideration of sites in nonminority neigh-

borhoods had generated a “great deal of controversy”;

neighborhood opposition was expressed by citizens’ com-

mittees and the presentation of petitions by more than

3,000 residents. Proposals from local businesses for dif-

ferent sites, some “located deep in Yonkers’[s] ghetto

areas,” prompted “a passionate debate over racism.”

Alfred Del Bello, mayor of Yonkers from 1970 to 1974,

testified that he abandoned the 98-site survey and focused

instead on four sites within a five-block radius of the

predominantly minority downtown section of Southwest

19a

Yonkers. The State Urban Development Corporation

agreed to sponsor these sites despite the known concern

of the Planning Board that the locations chosen were

inconsistent with the goal of commercial and industrial

revitalization of Yonkers; construction was begun with-

out consultation with the Planning Board. Del Bello

testified that he had settled on the four sites in minority

areas because he “was dedicated to producing housing,

and [he] had to find a political course that would allow

us to get it constructed.” He stated that “race was defi-

nitely a consideration in many of the demonstrations and

visible opposition that we had.”

In 1971, HUD warned the City that Yonkers would lose

millions of dollars in federal funding unless it provided

a more balanced distribution of its subsidized family

housing. City efforts to find sites acceptable to HUD

included some dozen meetings in nonminority neighbor-

hoods. One official described these meetings as chaotic

and carrying a pervasive feeling of “strong fear” on the

part of the residents; his perception was that “racial”

motivations were “very thick in the air.”

Eventually, in 1972, the City approved construction of

334 units of subsidized housing on a site that was

bordered on the north by a heavily minority area and on

all other sides by neighborhoods that were predominantly

white. This site was approved over the opposition of resi-

dents of the predominantly white neighborhoods, the only

minority housing site approved over such opposition.

Shortly thereafter, the common view being that the coun-

cilman in whose ward that site was located had little

chance for reelection, the councilman resigned to take an

appointed City position. In 1973, a new mayor, Angelo

Martinelli, was elected, having promised during his cam-

paign to impose a moratorium on all subsidized housing

in Yonkers. The 334 units approved in 1972 were the

last subsidized housing for families constructed in

Yonkers.

20a

4. Housing Decisions in 1974-1982

In 1974, the Housing and Community Development Act

(“1974 Housing Act”), Pub. L. No. 93-383, 88 Stat.

633 (eccdified, as amended, in scattered sections of 42

U.S.C.), replaced previous federal urban renewal pro-

grams. Designed in part to expand housing opportunities

for minorities, this statute allowed a community, inter

alia, to receive certificates (called “Section 8 Certifi-

cates”) to_be distributed to eligible families or individ-

uals who could then choose an apartment in any par-

ticipating building and have part of the rent subsidized

by the federal government. See 42 U.S.C. § 1437f. In ~

1975, the Yonkers Department of Development, an agency

formed in 1971 during HUD’s pressure for scattered sites

for public housing, applied for 100 Section 8 Certificates,

50 for senior citizens and 50 for families. HUD reserved

these certificates for the City, pending approval by the

Council.

The Council, however, refused to approve use of Sec-

tion 8 Certificates by families. Two City officials who

attended a Council meeting at which the certificates were

discussed testified that many councilmen had been “con-

cerned about the possibility that members of the minority

communuity would, in fact, seek and probably find units

on the east side of the city.”

Accordingly, during the next several years, the City

either applied for no Section 8 Certificates for families,

or applied for and received family certificates but used

few of them, or was denied further certificates because

of its nonuse of prior certificates. In 1981, after MHA,

at the urging of HUD, applied to HUD for Section 8

Certificates for both families and senior citizens, the

Council passed a resolution forbidding MHA to apply

for certificates for families. To the extent that the City

allowed minority families to use any of the family cer-

tificates it had received, it referred those families only

2la

to buildings that were located in Southwest Yonkers;

only white families used certificates in East or North-

west Yonkers.

The 1974 Housing Act also allowed a community to

receive funds for housing construction. During the pe-

riod 1974 to 1979, the City built four senior citizen

housing projects using such funds. All four were in

Southwest Yonkers.

In 1975, an additional senior citizen project was pro-

posed by a private developer for East Yonkers. It was

supported by the Planning Board as “well suited for

Housing for the Elderly vis-a-vis public transportation,

shopping, recreation, etc. as well as its location in the

eastern half of the city.”” The developer, however, had

filed a fair housing statement with HUD, expressing his

hope to attract elderly blacks and hispanics from South-

west Yonkers and achieve a 20% minority representation

in the project. Local residents opposed the project on the

ground that it contained the “seeds of a ghetto,” and the

project was ki:led by the refusal of the City’s Zoning

Board to grant minor zoning variances for parking, and

by the Council, which criticized the project on the ground

—squarely contradicted by the planning experts—that it

was unsuitable for senior citizen housing because, inter

alia, there was an “unsightly car lot” nearby. The proj-

ect was not built.

In June 1980, HUD advised the City that continued

receipt of federal funding would be conditioned on the

City’s taking “all actions within its control” to construct

100 units of subsidized housing for families “outside of

areas of minority concentration.” Although the City

signed a contract with HUD containing such an under-

‘taking, and several sites were thereafter proposed, no

such housing was built. One such site was disapproved

by the Council after receiving the “[c]ustomary commu-

nity opposition.” Three others, out of a list of 14 sub-

iam,

22a

mitted to HUD by CDA, were tentatively found accept-

able by HUD, but their use for low-income housing was

thwarted by Council zoning actions. For one site, the

Council approved a zoning change so that it eventually

became a shopping center instead. For another, the Coun-

cil refused to approve a zoning change to a category

consistent with development as subsidized housing. The

third site tentatively approved by HUD was the site of

School 4, which had been closed in 1976 and remained

vacant, costing the City $40,000 to $50,000 per year in

maintenance; this site was already in a zoning category

that would permit a housing project. It was also in an

area that was 98% white. In 1979, as soon as the School

4 property was mentioned as a possible site for low-

income housing, the Council voted to remove it from the

multifamily zoning category in order “to ‘give the com-

munity some peace of mind.’” 624 F. Supp. at 1359.

In 1982, a developer expressed interest in the School 4

site for luxury condominiums priced at more than

$100,000. The Council bypassed the Planning Board and

took the unprecedented step of creating a citizens’ com-

mittee, composed of five white residents of the area, to

assess proposals for the use of the property. Four of the

five committee members had no experience in planning

or zoning, and the committee was not advised to consult

the Planning Board. The committee recommended the

sale because condominiums priced at $100,000 would at-

tract the kind of people “that we would like to live in the

neighborhood.”

Prior to Council action on the proposed sale, a council-

man whose ward was near School 4 wrote his constitu-

ents urging them to attend the Counci] meeting, explain-

ing that the NAACP opposed the sale on the ground that

low-income housing should be built instead. At the meet-

ing, a videotape of which is in the record, the predomi-

nantly white audience overflowed the room. The discus-

sion was emotionally charged, with frequent references

23a

to the effect that subsidized housing would have on the

“character” of the neighborhood. The final speaker from

the audience, a white proponent of the sale, stated that

the Bronx had been ruined when blacks moved there and

that he supported the condominium proposal because he

did not want the same thing to happen in Yonkers. The

audience responded with an ovation. During the discus-

sion that followed, when one councilmember pointed out

that the current zoning of the site was inconsistent with

the condominium proposal (the Council having, as noted

above, removed the site from the multifamily zoning cate-

gory as soon as it was suggested for low-income hous-

ing), another councilmember responded, “ ‘we will change

that zone when the concept fits the people, not before.’ ”

624 F. Supp. at 1363.

The Council voted 11-2 to sell the site for luxury hous-

ing. A majority of those who voted for the sale stated

that “the will of the community” should be honored.

Consummation of the sale has been delayed pending reso-

lution of this suit.

B. The District Court’s Findings as to Housing

After an extensive review of the evidence, Judge Sand

ruled that, in view of the “consistent and extreme” segre-

gative effect of the City’s actions, which catered consis-

tently to community positions that were in significant

part racially motivated, plaintiffs had sustained their

burden of proving that the segregated housing pattern in

Yonkers had been caused or exacerbated by the City’s

pattern and practice of discrimination on the basis of

race in its decisions on the location of subsidized housing.

Id, at 1369-73. He found that this pattern had begun

with the City’s first selection of subsidized housing sites

under the 1949 Housing Act and had continued through

its 1982 attempt to sell the School 4 property for luxury

housing. /d. at 1373.

24a

The court rejected each of the City’s arguments that

persons and factors other than the City had been the

cause of Yonkers’s segregated housing pattern. It found

that the cause was not HUD encouragement of subsi-

dized housing construction in Southwest Yonkers, id. at

1328-30; rather, HUD had urged scattered construction

sites, and the City had repeatedly risked the loss of

federal funding by its refusal to select more widely dis-

tributed sites, e.g., id. at 1323, 1347, 1356. Nor was the

cause a lack of private developer interest in areas, out-

side Southwest Yonkers, id. at 1330-31; CDA had sought

out developers only for Southwest Yonkers, id., and the

City-had-thwarted the efforts of a developer who sought

to build an East Yonkers project intended to attract

20% of its residents from minority groups, id. at 1350-

51. Nor could the housing patterns be attributed to the

desire of minority communities for concentration of sub-

sidized housing in Southwest Yonkers; minority groups

had begun at least as early as 1956 to express concern

about the segregative effects of locating subsidized hous-

ing in heavily minority areas and had expressed a desire

to “hav[e] the opportunity to live elsewhere in Yonkers.”

Id. at 1332-33. Nor was there, as the City contended, a

lack of suitable sites in East Yonkers, id. at 1333-37;

some of the sites rejected by the Council had been con-

sidered by the planners to be “ideal,” e.g., id. at 1300.

The court also rejected the City’s argument that its

site-selection decisions were made pursuant to a race-

neutral “legitimate planning strategy” for urban re-

newal, id. at 1337-42, for the City’s site selections, far

from revitalizing Southwest Yonkers, had brought re-

vitalization efforts to a halt, id. at 1310, 1337. Rather,

the court found that whenever a site was proposed for a

predominantly white area, strong community opposition

emerged. Jd. at 1369. Though this opposition was not

“based wholly upon race,” race was “a significant factor,”

id. at 1371 (emphasis in original); the opposition was

25a

“based, at least in significant part, upon fear of an in-

flux of minorities into what were (and remain today)

overwhelmingly white neighborhoods,” id. at 1313. The

court found that “City officials consistently responded to

that opposition.” Jd. at 1371. The inference that racial

animus was a significant element in the community op-

position to which City officials were responding was

drawn from, inter alia, direct testimony to that effect,

evidence of overtly racist comments, the racially divided

quality of private housing in Yonkers, and a general pat-

tern in which only sites proposed in the predominantly

white Northwest or East Yonkers or the white areas of

Southwest Yonkers engendered opposition. Jd. at 1311-

12. The court found that City officials “came to view

racially influenced opposition to subsidized housing in

East Yonkers as a ‘fact of life,’”’ id. at 1316, and made

“conscious decisions” to concentrate on “ ‘politically fea-

sible’”’ sites, id. at 1313. In addition, the court found

that “numerous City officials not only responded to, but,

in the words of the campaign literature of some, ‘led the

fight against subsidized housing in East Yonkers.’”

Id. at 1373.

The court found further evidence of the City’s intent

to preserve segregation in housing in its conduct with

regard to Section 8 Certificates. Its cut-off of applica-

tions for family certificates and its failure to use any

already obtained family certificates for minority families

outside of Southwest Yonkers were found “inexplicable

except by reference to the anticipated race of the certifi-

cate holders,” id. at 1347, 2.e., “inexplicable except on the

basis of fear that minorities might use the certificates to

relocate to East Yonkers,” id. at 1373. Similarly, with

respect to the City’s 1982 attempt to sell School 4 for

luxury housing, the court found that the procedural in-

novations and the nature of the debate made it “difficult

to imagine a clearer case of an action taken for a discrim-

inatory purpose.” Id. at 1363; see also id. at 1518-21.

26a

In sum, Judge Sand concluded that “the extreme con-

centration of subsidized housing that exists in Southwest

Yonkers today is the result of a pattern and practice of

racial discrimination by City officials, pursued in response

to constitutent pressures to select or support only sites

that would preserve existing patterns of racial segrega-

tion, and to reject or oppose sites that would threaten

existing patterns of segregation.” Jd. at 13873. The court

emphasized that its finding of the City’s segregative in-

tent rested not on a failure to act, but on “a thirty-year

practice of consistently rejecting the integrative alterna-

tive in favor of the segregative—a practice that had the

unsurprising effect of perfectly preserving, and signifi-

cantly exacerbating, existing patterns of racial segrega-

tion in Yonkers.” Jd. at 1368.

The court concluded that the conduct of the City and

CDA violated the Equal Protection Clause and that their

conduct since 1968 violated the Fair Housing Act as well.

C. The Housing Remedy

Having found the City and CDA liable for statutory

and constitutional violations, the court held a six-day

hearing as to appropriate remedies. In an order published

at 635 F. Supp. 1577 (1986) (“Housing Order”) and an

unpublished Modification to Housing Remedy Order

(“Modification Order’), dated July 8, 1986, the court

permanently enjoined the City from, inter alia, inten-

tionally promoting racial residential segregation in

Yonkers and ordered that certain affirmative steps be

taken toward a wider distribution of public housing.

The court noted that the City had already committed

itself to providing sites for 200 units of public housing in

order to receive its 1983 Community Development Block

Grant (“Development Grant”) funds but had never ful-

filled that commitment; the City also had entered into a

Censent Decree with HUD that provided that HUD would

27a

reduce Development Grant funding if the City did not

submit for preapproval sites for at least 140 of the 200

public housing units. The court ordered the City to sub-

mit an acceptable Housing Assistance Plan to HUD and

execute a grant agreement with HUD, in order to receive

the Development Grant funds for 200 units of subsi-

dized housing, 635 F. Supp. at 1580; Modification Order

at 2-4, and to “submit to HUD for preapproval at least

two sites for 140 [of the agreed 200] units of family

public housing,” 635 F. Supp. at 1580.

The Housing Order provided that if the City did not

submit two such sites within 30 days of the court’s order,

the City would be deemed to have submitted the sites of

three closed schools in East Yonkers, 7.e., School 4, School

15, and the Walt Whitman School, or such other sites as

might be proposed by plaintiffs and approved by the

court. Schools 4 and 15, closed in 1976, had been returned

to the City in 1982; Walt Whitman had been closed in -

1983, and the court ordered the Board of Education to

return that school to the City as well. The court also

ordered the City to submit sites selected from a specific

list for the remaining 60 public housing units. Jd. at

1581.

In addition, the court ordered the City to create an

Affordable Housing Trust Fund for the encouragement of

private development of low- and moderate-income housing,

to be funded initially with at least 25% of the Develop-

ment Grant funds allocated to the City by HUD. 7d. at

1581-82; Modification Order at 1-2. It also ordered the

City to establish a Fair Housing Office with prescribed

responsibilities, to seek HUD approval for transfer of

the administration of the Section 8 Certificate program

to MHA, and to develop a plan for more subsidized

family housing units in areas outside of Southwest

Yonkers. 635 F. Supp. at 1577-82.

28a

II. SCHOOL SEGREGATION

Management and control of the Yonkers school district

were entrusted to defendant Yonkers Board of Edu-

cation. The Board, an independent municipal corpora-

tion subject to the control of New York State’s Board of

Regents and Commissioner of Education, consisted of

nine members appointed by the mayor for staggered five-

year terms. Its budget was subject to review by the

Yonkers City Council.

At the liability trial, plaintiffs sought to show that

students in Yonkers schools were segregated and that

that segregation had been caused or enhanced princi-

pally by (1) the Board’s general adherence to a neighbor-

hood-school policy, with awareness of the City’s practice

of maintaining segregated neighborhoods; (2) other seg-

regative actions of the Board with respect to (a) school

openings, closings, and boundary changes, (b) faculty

assignments, (c) special education classes,.and (d) voca-

tional programs; and (3) the Board’s failure to take any

of- a number of recommended or otherwise appropriate

steps to alleviate the growing school segregation.

Plaintiffs contended also that the segregative housing

practices of the City were designed in part to achieve and

preserve segregation in the schools. They sought to show

that the City helped to maintain such school segregation

also by, inter alia, the mayor’s appointing tc the Board

persons known to advocate preservation of the segregated

neighborhoods and neighborhood schools.

A. Racial Composition of Each School's Student

Population

As of the 1980-81 school year, Yonkers had 23 ele-

mentary schools for grades K-5 or K-6; four middle

schools for grades 68 or 7-8; two combined elementary

and middle schools; four general academic high schools;

and one vocational high school. In a number of these

29a

schools, special education classes were conducted for

students with learning disabilities or emotional distur-

bances.

1. The Genera! Student Population

In 1980, the student enrollment in Yonkers public

schools was approximately 37% minority. The percent-

age of minority enrollment had approximately doubled

from 1970 to 1980, due in part to an increase in minority

enrollment and in greater part to a decline in white

enrollment:

Yonkers Public School Student Population

White So White Minority % Minority

1967 25,875 85 4,421 15

1970 25,049 82 5,583 18

1975 21,514 72 8,195 28

1980 13,840 63 8,023 37

In 1980, only two of Yonkers’s schools, one an ele-

mentary school located in Southwest and the other a

middle school in Northwest, had student populations

whose racial compositions approximated that of the sys-

tem as a whole. The next most balanced schools had

student populations that were, respectively, 21%, 45%,

and 47% minority. The great majority of the schools

were either disproportionately white or disproportionately

minority.

At the elementary level, although 61% of the students

were white, in 19 of Yonkers’s 25 elementary schools the

student populations were either more than 80% white

or more than 80% minority. Some 85% of Yonkers’s

minority elementary school students attended nine schools

in Southwest Yonkers. In addition, one elementary school

in Northwest Yonkers had an 88% minority population.

These 10 schools enrolled 92% of all of Yonkers’s mi-

nority elementary school students. More than 55% of

30a

Yonkers’s minority elementary school students attended

just five Southwest schools, whose minority populations

were 75%, 81%, 90%, 98%, and 98%.

Sixteen elementary schools were located outside of

Southwest Yonkers. Of these, 14 had student populations

that were at least 90% white; more than 70% of

Yonkers’s white elementary school students attended these

90%-white schools. Of the 11 elementary schools in East

Yonkers, only one had a minority student —— of

more than 7%.

In Yonkers’s middle schools, 62% of the students were

white. Two of the six middle schools were located in East

Yonkers and together enrolled only 62 minority students,

or 5% of Yonkers’s total middle school minority popula-

tion; these two schools were, respectively, 94% and 96%

white. Three middle schools were located in Southwest

Yonkers and had minority student populations of 62%,

69%, and 94%. Nearly 80% of Yonkers’s middle school

minority students attended the three Southwest schools.

Another 15% atended a middle school in Northwest.

About 70% of the students attending Yonkers public

high schools, including the vocational high school (see

Part A.II.A.3. below), were white. Of the four academic

high schools, two were located in East Yonkers, one in

Southwest, and one in Northwest. The two located in

East Yonkers had student populations that were 91%

and 98% white. The high school in Southwest had a

student body that was 62% minority; it enrolled nearly

two-thirds of all Yonkers minority students attending

academic high schools.

2. Special Education Classes

The Yonkers special education program provided special

classes for students with mental or physical handicaps,

including those with learning disabilities or emotional

disturbances. Beginning in the 1960’s, there was a grow-

3la

ing and disproportionate number of minority students in

special education classes. These classes, especially those

for the emotionally disturbed, were viewed by many

teachers, school officials, and community members as a

“dumping ground for black children.” In general, white

children would be placed in a special class only after

having been referred first to a school psychologist for an

evaluation, then to the principal for review of that evalu-

ation, then to the school district’s special education screen-

ing committee on the handicapped for a final decision as

to what type, if any, special program was appropriate.

A black child whose teacher considered him or her “dis-

ruptive,” however, would often (“for the sake of dis-

cipline”) be consigned immediately by the teacher and

the principal to a class for the emotionally disturbed,

without prior reference to a psychologist and with no

effort to determine whether other options might meet the

child’s needs.

As a result, in 1961, when regular classes in Yonkers

elementary schools had a system-wide minority popula-

tion of 10%, minorities made up 22% of the special

education classes. By the 1971-72 school year, when the

system-wide minority population was 20%, the minority

children made up 40% of all special education classes

and more than 70% of the classes for those with emo-

tional disturbances.

Location of the special education classes did not follow.

the Board’s usual neighborhood-school policy; rather,

these classes were placed in schools that had space avail-

able to accommodate them. Since most of the schools with

high minority populations tended to be more crowded,

most of the available space was found in schools having

virtually all-white student populations. The principals

of many of the latter schools resisted the placement of

special education classes in their schools for reasons that,

in the opinion of a former director of the program, were

race-related. Nonetheless, most of the special education

aaa iid

32a

classes were placed in schools having few other minority

students. In 1972, for example, classes for some 78% of

the children classified as emotionally disturbed were con-

ducted in schools whose regular student populations were

at least 97% white. Three-quarters of the students in

these special classes were minorities.

In most of the schools, there was no mainstreaming of

the special education classes into the general school pop-

ulation. Because special education assignments were

made without regard to residence, the students were often

bused long distances, often well over an hour’s trip, and

sometimes up to two hours, in each direction. Thus they

arrived at school later than the regular students and de-

parted earlier. In some instances they entered the school

through separate entrances and were kept in classrooms

located in secluded areas of the school. In one school,

for example, they had to file down two flights below

ground and pass through a boiler room to reach their

classroom in the subbasement. Special education stu-

dents also generally took their lunch, gym classes, and

recesses separately from the regular students. To the

extent that school officials allowed contact between the

two groups, the interaction was often purposely negative.

One witness who had been a regular student at a 98%-

white elementary school in the late 1960’s recalled her

perception that all special education students were black

and that they were held up to the regular students as

examples of “poor, bad behavior.” Thus the special edu-

cation students were perceived as “different” and “bad.”

Another witness, a parent and PTA president, testified

that her children had thought the words “retard” and

“nigger” were interchangeable because the children’s only

knowledge of blacks was of special education students

bused into their school.

Nor was the negative reaction to special education

students limited to the school’s other students. One of the

special education teachers and coordinators testified that

33a

parents and community members had thrown rocks at

her car and shouted “Take your niggers and get out.”

In 1972, the Board hired Dr. Gary Carman, a special

education expert, to direct the program. At trial, he

testified that Yonkers, by busing its special education

students long distances and physically segregating them

from the regular student population, “had the most in-

humane program for handicapped children [he] had ever

seen anywhere.” Dr. Carman “knew of no causes, medi-

cal causes, social causes, biological causes that could pos-

sibly account” for the disproportionate number of minori-

ties placed in the classes for the emotionally disturbed.

The disproportionate referral of minority students to

special education classes eventually prompted an investi-

gation by state and federal education officials. The con-

clusion of the United States Department of Education

was that the Yonkers special education program sub-

jected minority students to discrimination and violated

their civil rights.

From 1972 to 1975, Dr. Carman attempted to improve

the special education program by reducing the amount of

busing, returning some special education students to

regular classes, to an extent mainstreaming the special

education students into the general school population, and

reducing the incidence of virtually all-minority special

classes in virtually all-white schools. After Dr. Carman

left in 1975, however, these efforts lapsed and the system

reverted to one of long-distance busing and placement of

blocs of minority special education students in virtually

all-white schools. Dr. Carman testified that where the

total experience of white children with blacks was their

exposure to those in special education classes, the white

children would view the special education children as

“less worthy” and could well “generalize that to all

blacks.”

34a

3. Vocational High Schools

Prior to 1974, Yonkers had two specialized vocational

high schools, Saunders Trade and Technical High School

(“Saunders”), and the High School of Commerce (‘‘Com-

merce”). Saunders offered technical courses such as auto

mechanics, carpentry, and electricity; Commerce, which

was closed in 1974, offered courses such as stenography,

bookkeeping, cosmetology, food trades, and dressmaking.

Both schools were located in Southwest Yonkers. Neither

was subject to the Board’s neighborhood policy and each

accepted students from anywhere in the City.

Although precise statistics with regard to vocational

school enrollment by race are not available for years

prior to 1967, the trial testimony indicated that, prior to

1958, Saunders had a large minority enrollment. From

the 1930’s until approximately 1958, it had a reputation

as “a school for problem kids” or for “academically re-

tarded pupils,” or as a “dumping ground for minority

students.” Many black students from Runyon Heights

attended Saunders or Commerce instead of Roosevelt, the

schoo] nearest their homes, often encouraged by their

guidance counselor to do so even if they wanted an aca-

demic program. Similar steering wejally did not occur

with respect to academically undistinguished white stu-

dents.

In 1958, the Board decided to establish entrance re-

quirements for Saunders and Commerce based on grades,

achievement and aptitude test scores, recommendations,

and discipline records. The criteria for admission were

not precise, however, and final decisions lay within the

discretion of the respective principals. Apparently these

entrance requirements had the effect of changing the

community’s perception of the schools as inferior, and by

the early 1970’s, Saunders, whose capacity was roughly

one-half that of the smallest academic high school, was

receiving nearly twice as many applications as it could

accept.

ye 35a -

At the same time, Saunders’s minority enrollment was

decreasing substantially, due in part to the heightened

entrance requirements, the acknowledged inferiority of

the educational programs available in Southwest Yonkers

schools, the subjectivity of the school officials’ evaluation

of the applicants’ credentials, and the absence of any ef-

fort on the part of the Board to see that minority stu-

dents, most of whom attended schools in Southwest Yon-

kers, had an equal opportunity to get into Saunders.

Robert Alioto, the school system’s superintendent from

1971 to 1975, and other school district officials believed

that Saunders’s selection process “ ‘appeared to system-

atically exclude minority youngsters.’” 624 F. Supp. at

1450. The Board, “though aware of the systematic ex-

clusion of minorites which resulted from the Saunders

admissions process, did relatively little until the late

1970’s to eliminate the discriminatory impact of the

methods by which students were chosen.” Jd. at 1452.

B. Facility and Faculty Disadvantages of the Predomi-

nantly Minority Schools

In support of their contention that Yonkers’s segre-

gated school system provided minorities with lower qual-

ity education than was given to whites, plaintiffs offered

evidence of inferior and generally overcrowded facilities

at schools with high minority populations, and of high

faculty turnover and a lower overall level of teacher ex-

perience in such schools.

1. Plant Facilities

School officials testified that adequate facilities at a

school are important not only to a student’s physical de-

velopment but also to his ability to benefit from the

instructional aspects of the educational process. Inade-

quate physical facilities, including space for recreation,

can cause disciplinary problems and cause the community

to perceive the school as inferior. According to Alioto,

ee

36a

the Southwest Yonkers schools “had probably the worst

facilities that one could imagine.”

The predominantly minority schools had smaller build-

ings and sites, particularly in the amount of playground

and recreation areas for each school, than the predomi-

nantly white schools. For example, the site size of the

five most heavily minority elementary schools averaged

1.83 acres: the average site size of the nine most heavily

white elementary schools was 4.84 acres. At the minority

schools averaging 1.83 acres, the average school popula-

tion was 413 students. At the white schools averaging

4.84 acres, the average school population was 308 students.

The three predominantly minority middle schools, all

in Southwest Yonkers, were located on property totaling

7.2 acres. The two predominantly white middle schools

located in East Yonkers were on a total of 19 acres. The

total number of students attending each group of schools

was nearly identical: 1,299 in the Southwest schools, and

1.312 in the East Yonkers schools. During the 1970's,

crowded conditions forced one Southwest middle school to

use storage closets as classrooms.

The 62% minority high school in Southwest Yonkers

was located on 8.0 acres. The high school in Northwest

Yonkers, 47% minority, was located on 6.38 acres. The

two high schools in East Yonkers, averaging 95% white

student populations, were located on 12.64 and 23.41

acres respectively. A total of some 350 fewer students

attended these two East Yonkers schools than attended

the Northwest and Southwest schools.

2. School Staffing

Educators testified that it is generally desirable for a

school to have a balance of experienced and newer teach-

ers on its faculty and for its staff to be relatively stable

from year to year. Relatively high rates of turnover and

low levels of faculty experience are factors that contribute

37a

to a school’s lower level of educational effectiveness. The

evidence regarding the Yonkers public school system re-

vealed that the predominantly minority schools in South-

west Yonkers had low levels of faculty stability, lower

levels of teacher experience than the system-wide average,

and produced the students with the lowest academic

achievement test scores in the system. These schools also

had much higher than average concentrations of minority

staff as a result of a board practice of race-based assign-

ments.

The first minority teachers employed by the Yonkers

school system, hired between 1946 and 1950, were assigned

to School 1, then the only predominantly minority school

in the system (91% minority student population in

1950). Until the late 1960’s, the system had few mi-

nority teachers and no minority principals. The Board

then began to recruit minorities, and the number of mi-

nority staff members (i.e., teachers, principals, and as-

sistant principals) rose from 95 in 1967 (out of a total

of 1,416), to 174 by 1975. Consistently over the years,

most of the minority staff members were assigned to the

schools having the highest percentages of minority stu-

dents. For example, in the 1967-68 school year, Yonkers

had 28 elementary schools; seven of the eight with the

highest percentages of minority students were assigned

40° of the minority staff members. In the 1972-73

school year, Yonkers had 80 elementary schools, including

six whose student populations were predominantly mi-

nority. The Board assigned 61% of its minority staff

members to these six schools. In the 1975-76 school year,

Yonkers had 31 elementary schools, including nine whose

minority student populations ranged from 60% to 98%.

These schools enrolled 29% of all elementary students;

they were assigned 75% of all elementary level minority

teachers.

Similar patterns were evident in the middle and high

schools. For example, in the 1972-73 school year, Yonkers

Ee

38a

had seven middle schools; the three that had the highest

percentages of minority students had 34% of the City’s

total middle school enrollment but were assigned 69%

of the Board’s middle school minority staff members. In

1975-76, the City had eight middle schools; the four

having the highest percentages of minority students,

though enrolling only 43% of all middle school students,

had assigned to them 81% of all middle school minority

teachers.

The Board followed a similar practice in its assign-

ments of minority principals. For example, at the ele-

mentary level in the 1973-74 school year, the City had

six minority principals; four were assigned to schools

whose minority student populations ranged from 68% to

96%. In the 1974-75 and 1975-76 school years, the City

had five minority elementary school principals; in 1975-

76 it also had one minority assistant principal; all of

these persons were assigned to schools having minority

student populations of 66% or higher.

While at no time was the faculty of any Yonkers

school predominantly staffed by minority teachers, the

disproportionate assignment of minority staff to schools

having predominantly minority student populations in-

creased the identification of those schools in terms of

race. And to the extent that minority teachers were

assigned to the virtually all-white schools of East Yonkers

it was often to teach the special education classes, which

themselves had become known as dumping grounds for

minority students. The minority special education teach-

ers “were deliberately assigned to such schools because

of the disproportionate number of minority students in

Special Education classes.” 624 F. Supp. at 1465.

Not surprisingly, in view of the assignment of a dis-

proportionate number of the more recently hired mi-

nority teachers to the predominantly minority schools,

39a

the average level of teaching experience at those schools

was usually lower than the system-wide average. In the

year 1967-68, the system-wide average level of teacher

experience was 8.45 years. In the elementary schools

having minority student enrollments of 40% or higher,

the teacher experience level averages ranged from 5.61

to 7.88 years. The only schools whose teachers averaged

more than 10 years in experience were schools having

11% or less minority enrollment, four of which were

less than 4% minority.

The disparity in teacher experience levels was ag-

gravated in 1969 when the Board entered into a new

collective bargaining agreement with the teachers’ union.

Notwithstanding the already clear trend of concentration

of minority teachers in schools having predominantly mi-

nority student bodies, the Board agreed that before as-

signing any teacher hired from outside the school dis-

trict to any vacant position within the system, teachers

already employed within the system would be given the

option, in order of their seniority, of transferring to the

vacant position. Thus, as positions became available in

East Yonkers schools, the most experienced teachers in

Southwest Yonkers schools could, and often did, opt to

change schools.

The effects in terms of minority staff concentration,

staff turnover, and teacher experience levels were pre-

dictable. For example, School 10 was opened in 1972 as

a predominantly minority, physically inferior elementary

school in Southwest Yonkers (see Part A.II.E.2. below).

Of the original 17 teachers, 15 were white; within two

years, 14 had left the school. In the period 1971 to 1975,

the total number of minority staff members employed by

the City increased from 133 to 174; but in none of the

17 elementary schools having white student populations

in excess of 90% did the number of minority teachers in-

crease. Indeed, in 10 of these schools, the number of

minority teachers actually declined; and the four schools

that had had no minority teachers prior to 1971 still had

none,

40a

In 1971-72, when the system-wide average teaching ex-

perience was 7.15 years, the average levels of experience

at six of the seven elementary schools having minority

student enrollments of 40% or higher ranged from 3.33

to 6.19 years. In contrast, only two of the 13 elementary

schools having white student enrollments of more than

95% had below-average teacher experience levels; four

of the 13 had staffs averaging more than 10 years’ ex-

perience. The disparity in teaching experience levels was,

to an extent, decreased in 1976 when, because of the

City’s fiscal crisis, the Board laid off 250 teachers, a

great number of whom were relatively inexperienced.

But even by the school year 1979-80, when the system-

wide average was 14.2 years, the average levels at the

predominantly minority elementary schools ranged from

9.9 to 13.4 years.

In the 1969 collective bargaining agreement that gave

teachers an option to transfer, on the basis of seniority,

to vacant positions elsewhere in the system, the Board

had reserved the right to compel a teacher to change

schools, in certain enumerated circumstances, “when

judged to be in the best interest of the school system.”

The Board never sought to use this provision in order to

decrease the concentration of minority teachers in schools

with predominantly minority student populations. Indeed,

in 1977, the Board agreed to additional limitations on its

right to implement involuntary transfers of teachers.

As a result of the Board’s race-based assignment prac-

tices, the eastward flow of the more senior teacher's, and

the Board’s failure to take any steps to halt that flow

or to correct the imbalance of its assignments, by 1980

most of the City’s minority staff members were con-

centrated in one-quarter of the system’s 36 schools. Of

the City’s 25 elementary schools, five that had minority

student populations of 75-98% were assigned at least

half of the system’s elementary level minority teachers;

no minority teachers whatever were assigned to five other

schools, all of whose white-student enrollments exceeded

4la

92%. Of the City’s six middle schools, the three in South-

west Yonkers, which had minority student populations

ranging from 62-94% and accounted for 42% of the

total number of middle school students in the system, had

62% of the system’s middle school minority teachers. Of

the five high schools, the two that had the highest mi-

nority enrollments (47% and 62%) accounted for 46%

of all the high school students in the system but had

77% of the systems high school minority teachers.

C. The Board’s Decisions as to School Closings,

Openings, and Attendance Zone Changes

During the decades on which this litigation focused, the

Board made many decisions with regard to opening and

closing schools and realigning their attendance zones.

Plaintiffs sought to show that many of these decisions

evinced an intent to create or maintain segregation in

the Yonkers public schools.

1. Attendance Zone Changes

Among the attendance zone changes were several affect-

ing Schools 16 and 25, elementary schools located in

Northwest Yonkers, less than one mile apart. Between

1953 and 1968, the Board redrew the boundary between

these two schools four times. In 19538, School 25 had a

minority student population of 4%; that of School 16

was 0%. The 1953 boundary change resulted in the re-

assignment of 35 white students, and no minority stu-

dents, from School 25 to School 16. Ten years later, the

minority population of School 25 had risen to 14%;

School 16 still had no minority students. A 1963 bound-

ary change resulted in the reassignment of nine white

students, and no minority students, from School 25 to

School 16. In the following year, a boundary change re-

sulted in the reassignment from School 25 of 23 white

students and nine minority students, thereby bringing the

minority population of School 16 to 2%. By 1968,

Yonkers’s system-wide percentage of minority students

42a

was about 15%, and School 25 had a minority popula-

tion of 42%. A boundary change in that year resulted

in the reassignment of six of its white students, and no

minority students, to School 16. School 16’s minority

population was 1%.

The Board argued that these changes had been designed

to avoid having the reassigned children traverse a steep

hill between their homes and school. Board reassignments

in other sections of the City, however, had been made

though they forced the reassigned students to cope with

similar topographical conditions, and in fact two of the

boundary changes between School 25 and School 16 made

the trip to school harder, not easier, for the students

who were reassigned. No other explanation was offered

by the Board. “

A 1963 attendance zone change between Southwest

Yonkers Schools 9 (15% minority) and 12 (42% mi-

nority) was similarly unexplained by race-neutral cri-

teria. The attendance zone for School 9 was directly

north of that for School 12. In 1963, the Board moved

the boundary line farther north. While this change

slightly lowered the minority percentage enrolled in

School 12, it substantially lowered School 9’s 15% mi-

nority percentage as it reassigned some 40% of School

9’s minority students to Schoo] 12; even prior to the re-

assignment, School 12 had had the second-highest minority

concentration in Yonkers. This boundary change was

contraindicated by the relative student-capacities of the

two schools. According to the Board’s figures, prior to

the change, only 77% of the capacity of School 9 was

utilized: School 12 was 96% full. The boundary change

caused School 12 to be overcrowded.

2 The Fai'ure to Close or Rezone Longfellow

The Longfellow Middle School, located in Southwest

Yonkers, has long been the Yonkers middle school with

the highest percentage of minority students. In 1950,

43a

though only 12% of its students were minorities, these

students constituted 41% of the City’s entire minority

middle school population. Housed in a relatively small

facility with no outdoor recreational space, by 1969 the

school had become underutilized as Burroughs Middle

School was opened one mile away and the attendance zone

for Longfellow shrank. The drawing of the attendance

zone line between Longfellow and Burroughs decreased

the number of white students attending Longfellow, and

the increasing minority population of Southwest Yonkers

led to increasing numbers of minority students. In 1967,

Longfellow’s student population was 38% minority; after

the opening of Burroughs in 1969, Longfellow became

50% minority. By 1973, Longfellow had become 79%

minority.

The combination of its disproportionately high mi-

nority student population, its inferior physical facilities,

and its underutilization caused many education officials

and community leaders to urge repeatedly, beginning at

least as early as 1967, that Longfellow be closed. The

Board rejected all proposals either to close Longfellow

and transfer its students to other schools that were less

heavily minority, or to expand Longfellow’s attendance

zone so as to achieve a desegregative influx of non-

minority students. For example, in 1977, when the

Board planned to close the nearby Burroughs as a middle

school, the Longfellow PTA urged the Board to return

to Longfellow the predominantly white area that had

been rezoned from Longfellow to Burroughs in 1969;

such a realignment would have made use of Longfellow’s

excess capacity and had a desegegrative effect. The Board

rejected this suggestion, deciding instead to reassign the

Burroughs students—even those who lived within one

mile of Longfellow—to Emerson Middle School, two miles

away near the northwest corner of the City, or to Whit-

man Middle School, four miles away near the northeast

corner of the City. Though the Board initially reached

= .

44a

this decision while an overall school reorganization plan

recommending the closing of Longfellow was under con-

sideration, it adhered to the decision after the reorganiza-

tion plan had been rejected, stating that Longfellow

might still be closed.

Other proposals recommended closing Longfellow and

reassigning its students to Mark Twain Middle School,

located in the southeast corner of East Yonkers, some

three miles from the site of Longfellow. The proposal had

both fiseal and desegregative merit, for Twain was op-

erating at less than its stated capacity, and it had only

a 2% minority population. The Board refused, however,

stating that the distance the students would have to

travel to reach Twain would be too great and that Long-

fellow students’ parents would not have the ability to

carpool their children or pay for the necessary trans-

portation. In fact, however, many students already

within the Twain attendance zone were required to travel

some 21% miles to school, and a one-way distance of some

four miles had not deterred the Board from reassigning

some Burroughs students to Whitman. Further, though

the Board had arranged transportation several times in

other circumstances, it made no effort to explore this

possibility with respect to the proposed reassignment of

Longfellow students to Twain. Finally, the net cost of

providing transportation for reassigned Longfellow stu-

dents would have been relatively low, both because the

Board could have saved some $500,000 per year in opera-

ting and faculty costs by closing Longfellow, and because

under New York law the state would have provided 90%

reimbursement for transportation expenses incurred for

purposes of school desegregation.

In sum, from the late 1960’s, the Board rejected pro-

posal after proposal for the reassignment of more white

students to Longfellow or of Longfellow minority stu-

dents to schools with lower percentages of minorities. It

declined to desegregate Longfellow on the ground that

45a

school might be closed; but Longfellow was not closed,

even in 1976 when the City’s well publicized fiscal crisis

required the Board to close several schools. At the time

this suit was commenced, Longfellow remained in inferior

physical facilities, operated at 31-40% of its capacity,

and had a minority population of 94%

3. The Opening of Commerce Middle School

In 1973, in conjunction with the closing of the High

School of Commerce, located in Southwest Yonkers a few

blocks from the downtown area, the Board opened a new

Commerce Middle School (“Commerce Middle”). Its stu-

dent body consisted of junior high school students who

theretofore had attended Gorton, a combined junior and

senior high school located in the southern part of North-

west Yonkers. The initial enrollment in Commerce Middle

was 53% minority.

Prior to deciding on Commerce Middle’s attendance

zone, the Board had been presented with a number of

proposals that would have avoided this creation of yet

another predominantly minority school in Southwest

Yonkers. These proposals principally involved Emerson,

a combined elementary and middle school in Northwest

Yonkers located about 11% miles north of Gorton. Emer-

son then had a middle school minority population of 8%.

One proposal was to assign to Commerce Middle the

middle schoo] students from Emerson who lived in the

southernmost part of the Emerson attendance zone. There

was strong opposition from white residents, however, to

any relocation of white students to form an integrated

Commerce Middle, opposition that the Board perceived as

grounded principally in racial concerns. The Board was

also well aware that transferring Gorton students to the

proposed new Commerce Middle without reassigning stu-

dents from any other school would have a distinctly

segregative effect: memoranda assessing this alternative

noted, “Commerce may become an all-black school”;

46a

‘Commerce could be all black”; “Commerce becoming

} oe } 99. éDeantal ® hoot : att tLiask

nasicallvy a DlacK SCnoOo! , Racial Distribution- all black.

It decided to assign to Commerce Middle no students

ther than those from Gorton.

It also rejected proposals to reassign the Gorton junior

hich school students—41% minority—to Emerson instead

€ to Commerce Middle, a course that apparently was

hoth feasible in terms of Emerson’s capacity and con-

sistent with repeated proposals from school officials and

community members to convert Emerson from a com-

bined elementary and middle school to an exclusively

middle school. The Board declined to reassign Gorton

students to Emerson, on the ground that “tensions” w yuld

created, apparently a reference to racial concerns, for

‘n 1973. one-third of the Emerson’s middle school mi-

nority students were transferred to Burroughs

in response to race-related concerns of the Emerson

community regarding the presence of minority stu-

ta + +) . “rly / 2h saminictr

dents at the school. According to [schoo] administra-

tion officials], this transfer was effectuated for the

purpose of insuring the safety of minority students

who had been enrolled at the school in light of al-

tereations which had occurred between students a

he school and the Emerson community’s opposition

ttendance of minority students at Emerson.

After opening Commerce Middl a 53 minority

school in 1973. instead of expanding Commerce Middle’s

attendance zone northward to draw in any predominantly

white neighborhoods, the Board redrew the zone boundary

}

fartner sout theret reassigning to Commerce Middl

> "* + > 7 > } > ]

students from Longfellow and another predominant!)

minority school. Commerce Middle’s minority populatio!

thus increased to 7 in 1974 and to 77 1975. In

1o7¢ ‘ ‘ schoc . = ay: as , + ot ting RB . re.

Sponse t I c Cit ST =( le sis

47a

4. Other Board Actions

Other Board decisions challenged by plaintiffs included

the early rezoning and 1954 closing of School 1 in Run-

yon Heights, the 1969 opening of the Martin Luther

King. Jr., School in Southwest Yonkers, and the fiscal-

crisis-related closings of several schools in 1976.

School 1 was located in Runyon Heights, the predomi-

nantly black community in East Yonkers. For a time

in the 1930’s it was attended by students from the Home-

field section immediately to the north as well as by stu-

dents from other largely white neighboring areas; white

students then made up one-half to two-thirds of its stu-

dent population. In 1938, however, the Board redrew the

School 1 zone to correspond more precisely with the

boundaries of Runyon Heights. Students from Homefield

were reassigned to School 22, increasing the distance of

their trip but sending them to a virtually all-white school;

students south of Runyon Heights were sent to the then-

virtually all-white School 5. By 1950, School 1 was 91%

minority; at the time of its closing in 1994, it was 99%

minority.

As a result of the 1938 rezoning, described by the court

as “deliberate, racially motivated gerrymandering. done

in a manner which carefully incorporated privately cre-

ated residential segregation,” 624 F. Supp. at 1411, the

School 1 zone was the smallest in the City, and the school

operated at less than 42% of its capacity. Meanwhile,

two nearby virtually all-white schools, Schools 8 and 22,

became overcrowded. Runyon Heights community mem-

bers sought to have the Board expand the School 1 bound-

aries in order to draw in students from the surrounding

areas, thereby decreasing its underutilization, relieving

the surrounding schools’ overcrowding, and having a de-

segregative effect on School 1. Instead. in 1954 the Board

decided to close School 1 and send its students to Schools

5 and 24. which had a desegregative effect on those

48a

schools. None of the Runyon Heights students were sent

to School 22, which remained virtually 100% white,

thereby “preserv[ing] an all-white school experience for

Homefield students, consistent with the Board’s delibera-

tively segregative attendance zone boundary changes of

prior years.” 624 F. Supp. at 1413.

With respect to the Martin Luther King, Jr., School

(“King’’), the court found that the initial hope of the

Board was, unlike its segregative intent in rezoning

Schoo] 1, that the opening of King would serve as a sig-

nificant step toward correcting racial imbalance in the

schools of Southwest Yonkers. King was opened in 1969

for grades 4-6 with students reassigned from Schools 6

and 12, both of which were overcrowded and predomi-

nantly minority. The population of King at this point

was 57% minority. The following year, in accordance

with the Board’s original plan, students from the pre-

dominantly white School 9 were added, thereby decreas-

.

ing the minority population of King to 49%.

The assignment of children who had attended School 9

prompted a December 1970 petition signed by 434 of

their parents to have the Board restore the prior attend-

ance zones. The Board held fast for a year and then

relented. In the interim, white students from the School

9 area began to withdraw from King, apparently either

relocating or entering private schools, reducing the num-

ber of white students at King from 392 in 1970-71 to

224 in 1971-72.

In 1972, School 9 was eliminated as a King feeder

school, and third-graders who would otherwise have gone

on to King for fourth grade remained at School 9. Some

60% of this group were white. In 1973, King was con-

verted from a grade 4-6 school to a K-5 school; its stu-

dents came from the predominantly minority areas pre-

viously served by Schools 6 and 12, but not the pre-

dominantly white areas of School 9. King’s minority

49a

enrollment rose from 49% in 1970, to 70% in 1971, to

78% in 1972, te 87% in 1973. By the time of this law-

suit, it had a minority student population of 98%.

Although the district court viewed the consequences of

some of the Board’s decisions with regard to King as

“foreseeably segregative,” 624 F. Supp. at 1402, it was

unpersuaded, in light of the surrounding circumstances

and the Board’s initial desegregative intent, that the later

decisions of themselves bespoke a segregative intent.

The court explored Board decisions with respect to

opening and closing other schools, including those closed

in 1976 in response to the City’s fiscal crisis. Most of

these decisions had some segregative and some desegre-

gative effects and the court was unpersuaded that the

decisions themselves demonstrated a Board intent to pre-

serve segregation. Rather, the court concluded that a

major indicator of segregative intent was the Board’s

failure to adopt any proposal or plan to alleviate the

segregated patterns its prior actions had achieved.

D. The Board’s Rejection of All Proposals Involving De-

segregation

The first significant official recognition of the need to

address the racial imbalance of the Yonkers public schools

occurred during the 1968-1970 superintendency of Paul

Mitchell, who expressed his concern that the racial seg-

regation of the schools prevented equality in educational

opportunity. During his tenure came the opening of King

and School 10 (see Part A.II.E.2. below) in Southwest

Yonkers, both of which, though they quickly became

minority schools, had been planned by the Board as ra-

cially integrated schools. The Board also conducted a

series of human relations workshops and sought the as-

sistance of state education officials in addressing the prob-

lem of racial imbalance. Mitchell’s successor, Alioto,

hired a special consultant to serve as a liaison between

50a

school officials and community members, with particular

emphasis on communicating the concerns of the minority

community to school officials and alleviating the tensions

at the racially troubled Gorton School.

Nonetheless, while Alioto recognized the increasing

racial imbalance in the schools and the inequality of edu-

cational opportunity within the system, particularly with

respect to the inadequate facilities and inexperienced

teachers that characterized many of the Southwest Yon-

kers disproportionately minority schools, he and other of-

ficials noted that there was strong community opposition

to desegregation. For example, the education specialist

sent to Yonkers by New York State described a “very

hostile audience” at one PTA meeting in East Yonkers

and testified that white parents had stated explicitly,

“We don’t want desegregation, I don’t want my children

going to school with black children.’” Accordingly, Ali-

oto, having instructed his special consultant to gather

information on the extent of racial imbalance in the

schools, instructed him to cease work in this area because

Alioto believed it would be politically infeasible to pro-

ceed with desegregative efforts in the schools at that time.

The state specialist testified that Alioto informed him

that “there was great community resistance and that it

was unfeasible to try to develop a desegregation plan and

then implement it.” A former Board member testified,

“There is no question [Alioto] said it and he said it to

many people. He said it could never be sold in the Yon-

kers community. Any kind of totally city-wide racially

balaneed program would be politically infeasible.”

1. The NYU Report and the 1973 Reorganization

In October 1971, the Board commissioned a study of

the Yonkers public school system by the New York Uni-

versity (“NYU”) School of Education’s Center for Edu-

cational Research and Field Services. The study team

was not asked to address the issue of racial imbalance.

5la

The NYU Report, delivered in 1972, made several rec-

ommencations, some of which, though not addressing

racial issues directly, had desegregative implications. In

this category were recommendations to (1) reorganize

all schools into a uniform K-5, 6-8, and 9-12 grade con-

figuration, one facet of which would involve a potentially

desegregating school attendance zone change for students

from Homefield; and (2) decentralize the vocational edu-

eation program by (a) closing the High School of Com-

merce and having a new set of courses offered at Saun-

ders, (b) having two complete sets of the existing voca-

tional courses taught in the academic high schools, one

set divided between the two high schools located in the

northern part of the City and the other set divided be-

tween the two high schools located in the southern part

of the City, and (c) allowing a student to take any of

the vocational courses taught either in his own school or

in the paired school located to the east or west (the

“variable access plan’).

The NYU Report prompted strong community opposi-

tion to any revision of the vocational program that would

either cause the predominantly white students from East

Yonkers to have to attend classes in the disproportion-

ately minority high schools in the western half of the

City or allow the minority students from the west to

attend classes at the 94-97% white high schools in East

Yonkers. School officials characterized these objections as

reflecting a “[f]ear of racial encro[a]chments.”

Two weeks after the last public hearing on the NYU

Report, Alioto presented his 1973 Reorganization Plan

to the Board. In general, substantially as a result of

community opposition to the desegregative facets of the

NYU recommendations, the plan included the most segre-

gative proposals that had been made either in the NYU

Report itself or in the ensuing alternative suggestions,

Thus, the plan adopted the suggestion to decentralize the

Saunders vocational programs, but only in part: It re-

52a

jected the east-west pairing-and-sharing proposal of the

NYU Report, and instead incorporated the significantly

more expensive approach of duplicating certain of Saun-

ders’ vocational courses in each of the four academic high

schools. The opening of Commerce Middle as a predomi-

nantly minority school, discussed in Part A.II.C.3. above,

was also part of this proposed 1973 Reorganization Plan.

The Board promptly adopted the plan as recommended

by the superintendent.

The only potentially desegregating feature of the NYU

recommendations that was adopted was that part of the

suggestion to standardize the grade configurations which

entailed reassigning students from the predominantly

white Homefield neighborhood, then attending the over-

crowded Roosevelt High School (then 6% minority) in

East Yonkers, to the soon-to-be-underutilized Gorton (high

school population 24% minority). This recommendation

was adopted over opposition of Homefield parents that

school officials inferred was partly race-related. However,

the major desegregative effect of even this change was

delayed, as in the first year thereafter the Board per-

mitted nearly half of the 132 reassigned Homefield stu-

dents to remain at Roosevelt; later some Homefield stu-

dents began using false addresses to avoid having to

attend Gorton. In all,

the evolving segregation of the district’s schools re-

mained substantially unaltered. No student move-

ment between the district’s regular high school was

effectuated despite the recognition that racial inte

gration would be an advantageous result of the var-

iable access plan. The Saunders facility remained

intact despite the realization that the school’s physi-

cal inadequacies and screening process | were] pres-

ently resulting in the inaccessibility- of vocational

and occupational education opportunities to many

minority students. The racially balanced High School

of Commerce was closed and was replaced by a pre-

53a

dominantly minority middle school. No desegrega-

tive reorganizations were effecuated at the elemen-

tary school level, as would have occurred under some

of the NYU Report proposals.

624 F. Supp. at 1475-76.

2. Phase II

A serious official proposal for the desegregation of the

Yonkers public schools was made in 1977 by then-

superintendent Joseph Robitaille. In late 1975, in re-

sponse to concerns expressed by the Yonkers NAACP

over the increasing racial imbalance in the schools, the

Board had established a Task Force for Quality Educa-

tion (“Task Force”) to explore the system’s problems,

including declining enrollment, underutilization of school

facilities, and fiscal constraints. Announcement of the

initial formation of the Task Force omitted any mention

that the group would explore racial problems, an omis-

sion designed to avoid arousing community hostility.

Nonetheless, public resistance quickly materialized, with

East Yonkers residents expressing concern that transfer

of western Yonkers students into their schools would lead

to a decline in educational standards and student achieve-

ment and create disciplinary problems; they took the

position that the Task Force should be more concerned

with improving the schools’ overall educational quality

than with correcting racial imbalance. Nonetheless, the

Task Force’s final report, concluding that the Yonkers

schools were “racially and ethnically segregated ... .

due to segregated housing patterns, socio-economic dep-

rivation, and systematic racism,” made a number of re-

medial recommendations.

In August 1977, Robitaille issued his Phase II School

Reorganization Plan, which recognized the interrelation-

ship among the system’s fiscal, enrollment, utilization,

and racial problems, and incorporated some of the Task

54a

Force’s recommendations. The principal changes pro-

posed in the Phase II plan were (1) the reorganization

of the below-high-school grade configurations to K-6 and

7-8; (2) the closing of three middle schools, Longfellow,

Fermi, and Burroughs; (8) the relocation of Saunders

to the to-be-vacated Burroughs facility; (4) the closing

of Southwest Yonkers’s School 6, then 98% minority,

and reassignment of its students to underutilized ele-

mentary schools to the north, with a view to improving

racial balance; and (5) the “Yonkers Plan” for school

desegregation. The Yonkers Plan was essentially to limit

the size of each elementary and each middle school, draw-

ing its attendance zone accordingly, and to bus students

residing outside the redrawn zone lines to other schools

in a pattern that would improve the overall racial bal-

ance of the system. It was anticipated that no more than

20% of the students would have to be bused and that the

greater efficiencies would result in savings to the City,

over a 10-year period, of nearly $29 million.

Phase II in general, and the Yonkers Plan in particu-

lar, met with overwhelming community opposition. Many

statements from residents of East Yonkers focused on the

loss of neighborhood schools, the lack of any planned im-

provement in the quality of education, and the failure to

present possible alternatives to busing, such as the use

of magnet schools. Residents of Southwest Yonkers ob-

jected to the plan because of the loss of neighborhood

schools and because the burdens of traveling to school by

bus would be borne disproportionately by the minority

students from that area.

Some statements from East Yonkers residents pre-

sented explicitly race-related opposition, including flyers

protesting the busing of East Yonkers students and busing

of “the black children (3,000 in number) to our neighbor-

hood schools”; a letter from a community group that was

“unalterably opposed” to “compulsory (non-voluntary)

busing for racial purposes as an end in itself’; a letter

55a

expressing concern that busing “ ‘blacks & hispanics’ into

our east side schools” would be detrimental to the neigh-

borhood, and suggesting that the Task Force be renamed

“ ‘Racist Force us’ to take our children and go!” and a

letter from a neighborhood association stating the resi-

dents’ desire to “preserve the nature of our neighbor-

hoods” and their opposition to “mov[ing] children about

for the sole purpose of ethnic and racial mixing” (em-

phasis in original).

Similarly, at community meetings in East Yonkers,

school officials were presented with comments expressing

concern that the plan would result in Yonkers’s becoming

“another Bronx,” referring to the perceived community

deterioration and slum-like conditions that speakers asso-

ciated with the increase of minority population in that

New York City borough. The audience punctuated these

and similar statements by local residents with cheers and

applause. In contrast, proponents of Phase II were booed

and hissed upon introduction, upon mentioning such mat-

ters as the inferior books used in Southwest Yonkers

schools, and throughout their presentations. One elderly

black woman, upon mentioning the prospect of busing

students from west to east and stating that children

should learn from one another, was booed and shouted at

to such an extent that a recess had to be called.

While no explicit racial epithets were used by persons

making public statements at the hearings, several trial

witnesses testified that community members made spe-

cific racial slurs both inside and outside the hearing room,

such as, “they are going to send blacks, and they are

going to send niggers and they are going to send spicks

out here,” and ‘‘we don’t want those childlren.”’

Without ever taking a formal vote, the Board unani-

mously disapproved of all of the desegregative aspects

of Phase II. The Yonkers Plan was rejected; School 6

was not closed; Longfellow was not closed; no students

were bused.

56a

The stated basis for the rejection of Phase II’s de-

segregative components was the Board’s preference for

the use of magnet schools and open enrollment plans for

achieving voluntary desegregation. Although it appears

that all of the Board members acknowledged that at least

some of the community opposition to Phase II was racially

motivated, and some believed that racism was the princi-

pal basis of that opposition, there was no express dis-

cussion by Board members of the race-related community

opposition to Phase II except by Quentin Hicks and Anne

Bocik, members whose recent appointments to the Board

had been extremely controversial, see Part A.II.E.3. be-

low. Hicks, a black whose appointment had been protested

by members of the black community because he did not

represent their interests, stated that black parents were

concerned about having their children transported out

of their neighborhoods into a “white jungle.” Bocik, a

former principal who had been forced to retire in part

because of “her use of racial slurs and other racially

insensitive behavior toward minority students,” 624 F.

Supp. at 1507, stated that minority students and ad-

ministrators from minority schools “would like to be with

their own.”

Notwithstanding its stated preference for voluntary

methods of desegregation, the Board took no steps to

develop or implement any of the desegregative alterna-

tives suggested by its own members or by members of the

community. Thus, despite its professed enthusiasm for

magnet schools or open enrollment, no magnet school, open

enrollment, or other voluntary plan for desegregation was

implemented at any time.

As a result, in 1980, the schools of East Yonkers, many

of which were operating at less than 60% of their

planned capacities, remained predominantly (overall

95%) white in student population, with superior and

spacious physical plants, and experienced faculties. The

schools of Southwest Yonkers remained predominantly

57a

(overall 67% ) minority in student population, some over-

crowded and some seriously underutilized, housed in in-

ferior physical facilities, staffed with less-experienced

staff members and more than half of the minority

teachers employed by the school system, and providing

their students with concededly inferior educational oppor-

tunities.

E. The City’s Activities With Respect to School

Segregation

In contending that the City as well as the Board should

be held liable for segregation in the Yonkers public

schools, plaintiffs pointed to, inter alia, the interrelation-

ship between housing segregation and school segregation,

the City’s control over school budgeting and plans, and

the mayor’s appointments to the Board of persons opposed

to desegregative action.

1. The Interrelationship Between Schools and Housing

In an effort to refute the contention that its actions in

concentrating subsidized low-income housing in Southwest

Yonkers had had the effect of enhancing school segrega-

tion, the City offered a study that concluded that if none

of the subsidized housing projects in Southwest Yonkers

had been built and each of the project sites had remained

vacant, the racial balance in Southwest Yonkers’s schools

would not have differed significantly from the actual

1980-81 figures. In contrast, plaintiffs’ expert testified

that building low-income housing to be occupied princi-

pally by minority families tends to create a school that,

while not necessarily showing an immediate dramatic in-

crease in minority students, soon becomes identified as a

“minority school.” Such an identification encourages resi-

dent white families to move out of the neighborhood and

discourages other white families from moving in.

The relationship between schools and housing was

hardly lost on the City while it was making its various

58a

decisions as to whether and where to construct subsidized

housing. One Council member testified that nearly all of

the East Yonkers councilmen had indicated that their con-

stituents objected to subsidized low-income housing partly

because “[i]n order to keep the schools nice, you know,

you’d have to keep out the minorities.” Further, as

described in the previous section, a common theme of

East Yonkers residents’ opposition to the Yonkers Plan

for school desegregation was the desire to “preserve the

nature of our neighborhoods.” As described in Part A.II.

E.3. below, Mayor Martinelli explicitly opposed desegrega-

tion of the schools by busing in part because it would

diminish the stability of the residential patterns.

There was also evidence that City officials had re-

guested that the Board make several school attendance

zone changes that would have enhanced segregation at

the schools to be affected. For example, in 1974, Martinelli

urged that a small nonminority area of a neighborhood be

moved from the attendance zone of an elementary school

that was 60% minority to one that was 88% white. A

few months later a Council member suggested that several

predominantly white blocks be redistricted from a school

that was 28% minority to one that was 97% white. In

1976, another City official made a similar request at the

behest of a landlord who had complained that his ability

to attract tenants was detrimentally affected by the loca-

tion of his property within the zone of a school that had

a substantial minority enrollment. The Board declined

to implement any of these requested changes.

2. City Influence on the Board

Under state law, the Yonkers schoo] district is fiscally

dependent upon the City, and the Board’s annual budget

is subject to approval, line by line, by the Council. N.Y.

Educ. Law § 2576 (McKinney 1981). Because of the

Council’s fiscal control over the Board, “in the publie

mind there [were] two boards of education actually

59a

t

operating,” with citizens often looking directly to the

Council in school matters. There was no evidence, how-

ever, that the Council in any particular instance dis-

approved a school budget that included a desegregation

plan; there could be no such evidence because the Board

never sought to implement a plan that had any significant

desegregative elements.

The Board’s willingness to put specific proposals be-

for the Council was not constrained solely by fiscal con-

siderations. For example, in 1973, the superintendent

recommended to the Board, and the Board submitted to

the Council, recommendations for vocational program

modifications that were more expensive than the pairing-

and-sharing proposal of the NYU Report. Both the East

Yonkers community and a number of Council members

had publicly opposed the NYU Report’s recommendation.

The Board’s spurning of the less expensive NYU pro-

posals “was influenced by the perceived infeasibility of

obtaining City Council approval.” 624 F. Supp. at 1506.

Similarly, in the Phase II proposals, the school closings

and the state’s substantial subsidization of transportation

costs would have resulted in a net reduction of the school

system’s annual expenditures, and fiscal concerns thus

could not explain the Board’s rejection of those proposals.

As a practical matter, however, East Yonkers community

opposition to Phase II was strong, Council members and

the mayor had publicly expressed their opposition, and

the Board always had an eye on what was “politically,”

not just fiscally, feasible. As one Board official put it,

“we, in essence, had to convince another series of people,

most of whom were elected by the community, and to the

extent that the community resisted the idea, any idea,

it seems to me that that would have some impact upon the

people who owed election to those same individuals.”

The City’s influence on the Board was also visible in

certain decisions as to school sites and configurations.

For example, in the late 1960’s the Board commenced

60a

plans for School 10, which it intended to open as an

integrated elementary school in Southwest Yonkers, draw-

ing students from School 3 (then 34% minority), School

19 (then 68% minority), and School 27 (then 5% mi-

nority). Planned as an experiment in the “open school”

concept, in which the interior space would be flexible,

unstructured, and without walls, the building was to be

located on a five-acre site having a general openness of

environment harmonious with the openness to be found

within. As eventually constructed, however, School 10

was a mean and inadequate ghetto school, due largely

to changes urged by the City which the Board grudgingly

felt compelled to accept.

Without recounting the many events that occurred en

route to the birth of School 10, which are described in

detail in the district court’s opinion, 624 F. Supp. at

1403-10 and 1542-43, suffice it to say that first, the

Board agreed to change its preferred site to one in the

middle of an urban renewal project (in order to allow

the City to use the construction of School 10 as a statu-

torily permitted noncash contribution to the urban re-

newal area); later it accepted a one-acre site instead of

the originally approved five acres (because the City de-

cided to erect additional apartments on part of the site) ;

as the site was developed, the front of the school could not

be seen from the street (because the City wanted that

frontage for an apartment-retail-store complex); and in

the end, the school had virtually no outdoor recreation

area (because the City needed more garage space for

apartment residents). Though the Board objected to the

City’s inroads into the School 10 facilities, it eventually

capitulated to each demand.

Because of its location behind other buildings and its

lack of outdoor play area, School 10 became known as the

“airshaft” school and was characterized immediately as

a “new ghetto school.” By 1980, it had the fourth largest

minority percentage enrollment in the City.

ee

6la

3. The Mayor's Appointments to the Board

Although the Board was an independent municipal cor-

poration under state law, its nine members were appointed

by the mayor. Prior to the election of Mayor Martinelli,

many Board members served more than one term, fre-

quently being reappointed by a mayor other than the

one who had originally appointed them. In the 25 years

just prior to the advent of Martinelli, two-thirds of the

Board’s 33 members had been reappointed by a succes-

sor mayor. In 1973, after HUD had made clear that

further federal funds for housing would be withheld un-

less the City allowed low-income housing to be constructed

outside of Southwest, Martinelli won election on a cam-

paign platform that included a promise that no more

subsidized housing would be constructed in Yonkers.

Once in office, Martinelli, who opposed busing and favored

the policy of neighborhood schools, set out to appoint

members “based on his philosophy of education,” so that

“it would be his Board.” He did not reappoint a single

person who was serving on the Board at the time he was

elected. Many of his appointments were controversial.

His first appointment, in 1974, was Angelo Paradiso,

who had been the principal at Saunders from 1964 to

1973. Paradiso had resigned in 1973 after a dispute

with Alioto concerning the Saunders screening process

and Paradiso’s unwillingness to address the problem of

disproportionately low numbers of minority students at

the school and what Alioto perceived as the systematic

exclusion of minorities.

In 1975, Martinelli appointed as Board members Morton

Wekstein and Anne Bocik. Wekstein was the Mayor's

personal attorney, and his appointment drew criticism in

part because Wekstein’s law partner was then represent-

ing a number of school administrators who had been

considered ineffective by Alioto. A year later, Wekstein

resigned because of a conflict of interest.

SS

62a

Bocik was a former teacher and elementary school

principal who had retired in 1974 after Alioto requested

her resignation. As a principal, Bocik had vowed that

there would never be a full-time minority teacher of aca-

demic subjects in her school; she had received unfavor-

able job evaluations because of her ineffectiveness in

planning and her common use of racial slurs and other

racially insensitive behavior toward minority students.

Bocik’s treatment of minority students in this manner

had been the subject of complaints to school administra-

tors from both minority and white teachers; at trial, one

teacher described in detail incidents in which Bocik ter-

rorized or humiliated minority students, used racial epi-

thets in referring.to minority children, described them

as animalistic, and threatened to “buy bleach, Clorox,

Purex to bleach them, their skins, because perhaps that

would improve their behavior.” Soon after Bocik’s forced

retirement, a state senator wrote Martinelli, recommend-

ing that she be appointed to the Board based on her

experience and her Slavic background; her appointment

was supported by the United Slavonian American

League. It was opposed by the Board’s president, by

Alioto, and by community members, especially from the

minority community. Martinelli appointed Bocik to the

Board and defended the appointment by reference to her

ethnic background.

The mayor made several appointments in 1976. First,

after Wekstein resigned, Martinelli was asked to consider

appointing an hispanic to the Board. Notwithstanding

his recent justification of the Bocik appointment on

grounds of her ethnicity, he responded by stating that

his appointment would be “based on the quality of the

individual irregardless [sic] of racial background.” He

appointed to the recently vacated seat a white realtor

from Northeast Yonkers. a

In the same year, the mayor replaced two Board mem-

bers who had been movers behind the Task Force and

63a

were generally regarded as being among the Board’s

strongest advocates of school desegregation in Yonkers.

Both members had expressed their interest in continuing

to serve on the Board, and the reappointment of one or

both was supported by the Council of PTAs, the Yonkers

NAACP, the new superintendent Robitaille, and the

Clergy of Yonkers. Martinelli appointed instead John Ro-

mano, a candidate supported by the Congress of Italian-

American Organizations, and Joseph Spencer, a sup-

porter of the mayor in his previous election campaigns.

Once on the Board, Romano and Spencer promptly voted

against even applying for state funding for the Task

Force; Romano opined that state funding was a

“waste[]” because Yonkers has no “racial problem .. .

unless the state hands down a ruling stating there is a

problem.”

By the time of the 1977 Phase II proposal, Martinelli

was routinely quizzing prospective Board members about

their views on busing; he admitted at trial that these

views “probably weighed very heavily with [him]” in

deciding whether or not to appoint. In 1977 and 1978,

Martinelli appointed four persons, all of whom were op-

posed to the Phase II Plan. They included Quentin Hicks,

a black opposed to busing, whose appointment was im-

mediately protested by members of the black community

on the ground that his views did not represent theirs;

the appointment was later acknowledged by the mayor

to have been an embarrassment to the black community.

By May 1978, the Board was composed solely of Mar-

tinelli’s appointees. In that month, the Board held a

special workshop at which Board members unanimously

expressed their oppositon to the desegregation proposals

of Phase II. As indicated in part A.II.D.2. above, the

Board neither accepted any desegregative aspect of these

proposals nor took any other steps, including those it

avowedly preferred, toward desegregating the Yonkers

public schools.

64a

In 1979, Martinelli lost his bid for reelection. In his

valedictory State-of-the-City address, he began his de-

scription of his administration’s achievements in education

by stating that “[dJiseussion of neighborhood stability

would not be complete without attention to our public

school system.” After mentioning three factors that he

predicted would ensure sound and healthy schools, he

stated, “[m]ost importantly, we now have a Board of

Education fully committed to neighborhood schools which

is of critical importance to neighborhood stability in this

city!”

F. The District Court’s Findings as to School Segrega-

tion

The district court found that the Yonkers public school

system as a whole was in fact racially segregated, with

few of the public schools in Yonkers fairly reflecting the

racial balance of the City’s overall student population.

Using the term “minority” to include both blacks and

hispanics, the court found that most schools in the district

were either identifiably white or identifiably minority.

Most of the schools in Southwest Yonkers had student

populations that were predominantly minority, and the

community and the Board’s administrative personnel gen-

erally associated Southwest Yonkers with minority

schools. 624 F. Supp. at 1384-87.

School authorities acknowledged that the quality of the

education available at the identifiably minority schools

was inferior to that available at the identifiably white

schools, due in part to the inferior physical facilities and

the concentration of less experienced teaching staffs at

the former. Jd. at 1530. The court found that the iden-

tifiability of certain Southwest Yonkers schools as minor-

ity schools had become inseparable from the perception of

those schools as educationally inferior, and that ‘“[t]his

confluence of racial identifiability and relative educa-

tional opportunity has served to reinforce the segregative

65a

demographic patterns which have evolved in the City.”

Id. at 1444.

The court found that the segregation of the schools

was attributable to the conduct of both the Board and

the City and that each defendant had acted with the

intent to perpetuate or enhance school segregation.

1. The Board’s Liability

The court found that the Board was well aware of the

City’s practice of confining subsidized low-income hous-

ing to Southwest Yonkers and indeed had urged the City

to select scattered sites for such housing. It found that

the Board’s adherence to a neighborhood-school policy in

the face of the City’s known segregative practice sug-

gested an intent on the part of the Board to preserve a

similar segregation in the schools. /d. at 1535-37. It

found confirmation of segregative intent in many of the

Board’s affirmative acts.

The Board’s disproportionate assignment of minority

teachers and staff members to the predominantly minor-

ity schools served to enhance the racial identifiability of

those schools as minority schools; the enhanced identifi-

ability had the effect of perpetuating and increasing the

predominance of minorities in the student populations of

those schools. Jd. at 1527-28. The staff assignments were

not explainable by reference to rationales offered by the

Board to explain its assignments of students, for neither

the neighborhood-school concept nor concerns for trans-

portation played a role in staff assignments. Jd. at 1467.

Nor was the court persuaded by the Board’s reliance on

its agreement with the teachers’ union as an explanation

for the staffing pattern, first because the racial skewing

of the staff assignments predated that agreement, and

second because the agreement gave the Board a certain

amount of retransfer power that the Board never at-

tempted to use. Jd. at 1463-67. The court found that

66a

[t]he foreseeability of the increased racial segrega-

tion of staff members and the district’s limited ef-

forts to alleviate the imbalance together suggest that

the resulting assignment of minority staff to minor-

ity schools was a practice which the Board approved

of and intended to continue. . . . Given the school

district’s deliberately segregative pattern of admin-

istrative staff assignments and the racial dispro-

portionality in teacher assignments prior to the

collective bargaining agreement, it is reasonable to

infer that the subsequent pattern of assigning minor-

ity teachers to disproportionately minority schools

was considered desirable and was deliberately un-

altered.

Id, at 1464-65.

The court also found that the Board’s special education

program, which resulted in the placement of a dispro-

portionate number of minority children in classes for the

emotionally disturbed, was “operated in an unlawfully

discriminatory manner.” /d. at 1461. The evaluative

process was particularly prone to unwarranted racial as-

sumptions and was unusually discriminatory in its im-

pact. No race-neutral factor was likely to explain the

disproportionately high numbers of minority children in

such classes, id. at 1454, and the discriminatory treat-

ment and the consequent stigmatization of the children so

placed was not educationally justifiable, id. at 1461. In

addition, the assignment of these disproportionately

minority-populated special classes to schools that were

predominantly white, and the isolation of and refusal to

mainstream the special class students increased the stig-

matization. Jd. at 1455. Minority students enrolled in

regular school programs have had difficulty in gaining

acceptance among their white schoolmates as a result of

the Board’s placement of disproportionately minority

special education classes in the school. Jd. at 1456. Even

without reference to the special education program, the

67a

court noted that a Board study revealed significantly

more racial prejudice among students attending schools

that were disproportionately black or disproportionately

white than among students attending schools that were

racially balanced. Jd. at 1444.

The court also found that many of the Board’s actions

and inactions with regard to school openings, closings,

and attendance zone changes evinced a segregative in-

tent. It found, for example, that the racial imbalance

between School 16 (90% white) and the nearby School

25 (88% minority) had been caused in part by the

Board’s deliberately segregative conduct in repeatedly

redrawing the attendance zone boundary between the two

schools. It found that the Board’s proffer of a race-

neutral basis for the rezoning was pretextual. ZJd. at

1526-27.

Though the court was unpersuaded that the isolated

act of closing School 1 in 1954—by then 99% minority—

evinced a segregative intent, it found that the Board’s

earlier changes in the attendance zone of School 1, whose

student population had theretofore been as much as two-

thirds white, had “constituted deliberate, racially moti-

vated gerrymandering” for which there was no evidence

of any race-neutral justification. 7d. at 1411.

The court found that the Board’s refusal to close or

desegregate Longfellow, the underutilized, inferior mid-

dle school with a heavy minority population, was “dif-

ficult to explain in race-neutral terms,” id. at 1426, and

found the Board’s proffered explanations fiscally un-

sound, inconsistent with other Board actions, and pre-

textual. It found that by the late 1970’s, racial con-

siderations played an increasing role in the Board’s re-

fusal to close the school. Jd. at 1426-28. It also found

that “racial factors played a significant role in the

Board’s segregative opening of Commerce Middle School.”

Id. at 1482; see also id. at 1472-79.

68a

The court found that the Board’s rejection of the NYU

Report’s recommendation of a “variable access’ voca-

tional program was designed to be responsive to racial

concerns. The community opposition, which argued that

any east-west pairing of schools would result in a decline

of the quality of education offered at the schools in East

Yonkers, took on a pretextual hue in the context of voca-

tional courses. Though test scores indicated a disparity

between whites and minorities in achievement levels in

academic courses such as English and mathematics, no

such disparity was indicated with regard to vocational

courses such as auto mechanics. The court found that

the Board recognized that community opposition to the

pairing-and-sharing proposal stemmed from racial con-

cerns and that the Board’s selection of the more expen-

sive alternative of duplicating the vocational courses in

each of the four academic high schools refiected a desire

not to take steps that would be desegregative. Jd. at

1476-78.

The court found that the Board’s persistent rejection

of other desegregative proposals, including those recom-

mended in Phase II and all proposed alternatives that

would have had any desegregative effect, was similarly

the result of the Board’s responsiveness to race-based

community resistence to school desegregation. Jd. at 1497.

The court found it significant that the Board did not

always yield to public pressures, most notably in con-

nection with its decisions as to what schools to close in

connection with the City’s fiseal crisis. Thus, when the

Board proposed to close Schools 4 (98% white) and 15

(100% white), there was massive protest from the af-

fected communities, from councilmen, and from the mayor,

These protests were not construed by the Board as prin-

cipally race-based, and the Board held firm and closed

the schools. 7d. at 1416-17. Whenever a proposed change

was for purposes of desegregation, however, and the

pressure was perceived as racially motivated, the Board

acquiesced. Jd. at 1493-94.

69a

The court found several indications that much of the

community opposition to busing was race-related and

that its phrasing in race-neutral terms was pretextual.

For example, East Yonkers parents’ emphasis on allow-

ing their own children to attend schools in their neighbor-

hoods and on not usurping after-school recreational time

by requiring busing, could not explain their opposition to

having Southwest Yonkers children attend schools in East

Yonkers. Moreover, the allegedly race-neutral objections

would, in many instances, have been equally applicable

to the objectors’ proposed alternatives such as the forma-

tion of magnet schools and open enrollment. The sincerity

of their advocacy of magnet schools was further belied by

their earlier vehement opposition to the NYU Report’s

pairing-and-sharing proposal, which would have effected a

limited magnet-school program. All of these factors per-

suaded the district court that the stated preferences

of both the community and the Board for such busing

alternatives as magnet schools were pretexts designed to

obscure the race-based nature of their opposition to de-

segregative changes. Jd. at 1489-90. The court’s inference

that the Board’s own stated preference for such alterna-

tives was pretexutal and was also drawn from the Board’s

failure, for more than three years following its rejection

of Phase II’s desegregative aspects, to take any action

whatever to implement any of its allegedly preferred de-

segregative alternatives. Jd. at 1493-95.

In sum, the district court found that the Board’s

refusal to implement such proposals in the late 1970’s

occurred in [a] temporal and factual context which

renders a finding of deliberate perpetuation of racial

segregation appropriate: the increased racial im-

balance among the district’s schools; the increasingly

visible racial opposition to correcting this condition;

the increased demands for desegregative action; an

increasing realization that such action was an im-

portant ingredient in eliminating disparities in edu-

70a

cational opportunities in the district; a community

increasingly afflicted by segregative governmental

housing practices animated by community opposition

to the presence of subsidized housing in areas outside

of Southwest Yonkers; and the failure to address the

problem of racial imbalance in the schools in any

meaningful fashion in the years following the re-

jection of Phase II in a manner consistent with the

Board’s stated reasons for rejecting the plan. In our

view, the record makes clear that the initial re-,

luctance to implement desegregative school reorgani-

zation plans evolved into a persistent failure to adopt

measures to correct recognized educational and racial

imbalances in the district in part because of their

desegregative consequences. From the foregoing, we

find the Board’s failure to meaningfully address the

problem of racial imbalance subsequent to its con-

sideration of Phase II is more readily explainable as

a reflection of the community’s resistance to desegre-

gation rather than the race-neutral concerns of the

community.

624 F. Supp. at 1497. The court concluded that the con-

duct of the Board violated the rights of minority school

children under Titles IV and VI and the Equal Protection

Clause.

2. The Liability of the City

The court found that the City’s segregative housing

practices had been a contributing cause of the racial

segregation of the schools. It found that the failure

of the Board to take action to minimize the school segre-

gation “in no way negates the fact that, as a factual

matter, the City’s housing practices contributed to the

perpetuation and aggravation of residential segregation

and the resulting segregation of the schools.” Jd. at

1501.

71la

The court found that the segregative impact of the

City’s segregative housing practices on the schools was

not unavoidable, unknowing, or inadvertent. It noted that

the link between the racial identifiability of a school and

the residential segregation of the surrounding neighbor-

hood was recognized by City officials, id. at 1443, and

found that “in light of the school district’s historic neigh-

borhood school policy, the perpetuation and exacerbation

of racial imbalance in the school district was a natural,

probable and actually foreseen consequence of the City’s

discriminatory housing practices... .” Id. at 1542.

Indeed, in the racially motivated community opposition

to the construction of low-income housing in nonminority

areas, there was frequent mention of the effect of such

housing on schools, and express objection by white parents

to having their children schooled with minorities.

Further, the court found that the pattern of appoint-

ments by Mayor Martinelli of Board members, screened

for their opposition to “busing,” was an exercise of

“nower over school board appointments as a means of

furthering the city’s segregative objectives.” /d. at 1534.

Though the City was not initially responsible for the

Board’s neighborhood-school policy, it opposed construc-

tion of housing for minorities outside of Southwest

Yonkers, and it advocated keeping a!l children assigned

to schools in the neighborhood in which they lived.

Martinelli consistently appointed Board members who

shared this view and who steadfastly refused to take any

action that would have had any desegregative effect on

the schools. Thus, the court found that “the City not

only was aware of the overall impact of its subsidized

housing practices on Yonkers public schools but also in-

tended to preserve the racially segregative impact of

these practices on the schools.” Jd. at 1501.

In all, the court found that the City’s segregative hous-

ing practices and the mayor’s appointments contributed

significantly both to the confinement of minority students

to schools in Southwest Yonkers and to the Board’s failure

72a

to undo the segregative effects of these and other prac-

tices on the schools. “And in a city where the segregated

condition of ‘neighborhood schools’ is in part the product

of official municipal design, the commitment to the neigh-

borhood school system by the head of that same munici-

pality can hardly be considered race-neutral.” Jd. at

1513.

The court concluded that the conduct of the City in

intentionally perpetuating segregation in the schools vio-

lated the rights of minority schoolchildren under Title IV-

and the Equal Protection Clause.

G. The School Remedy

After receiving remedy proposals from the parties and

conducting an evidentiary hearing, the court issued its

school remedy order, reported at 635 F. Supp. 1538

(1986). As an overall goal, the order provided that the

Board “shall seek to achieve” desegregation throughout

the Yonkers public school system by the 1987-88 school

year. To this end, the court ordered the creation of a

system of magnet schools that students could choose to

attend voluntarily. It defined a “desegregated school” as

(a) a magnet school whose minority enrollment was

within 15 percentage points of the system-wide propor-

tion of minority students for the first year of that school’s

operation and within 10 percentage points thereafter, or

(b) a nonmagnet school whose minority population was

within 20 percentage points of the system-wide propor-

tion.

The court prescribed the methods to be used in ad-

ministering the magnet school system “[i]n order to

maximize the extent to which the integrative goals of this

order will be reached through voluntary student assign-

ments.” Jd. at 1544. They included an intense publicity

and recruitment phase, id., and a system whereby parents

must submit for each child a list of three school] choices,

at least one of which must “further the goals of de-

73a

segregation.” Jd. at 1545. The court also established the

admissions criteria to be used in the magnet schools,

ordered the Board to “make every effort” to achieve a

specified racial composition of teachers at each school,

explained the guidelines to be followed in the special edu-

cation program, and ordered that the Board provide trans-

portation for specified students. Jd. at 1545-50.

The court ordered the City to provide the necessary

funding for implementation of the ordered desegregation

program. It appointed a monitor to oversee compliance

with its orders and retained jurisdiction of the action in

order to enforce compliance. Jd. at 1551-53.

The court overruled a belated objection by the City that

the plan ordered by the court was too expensive. The

court noted that the City had made no such objection at

the hearing when the desegregation plan budget was pre-

sented, had not contended that any part of the proposal

was not required for desegregation, and was unable,

despite being given an additional opportunity to do so,

to show that any part of the desegregation plan budget

either was not necessary or was duplicative of the reg-

ular budget.

A stay motion was denied, and the desegregation pro-

gram was commenced in the 1986-87 school year.

B. LIABILITY

In these appeals, the City mounts several challenges to

the district court’s ruling that it is liable for segregation

in housing. Principally it contends that the court erred

(1) in ruling, in effect, that it had an obligation to build

subsidized housing outside of Southwest Yonkers; (2)

in finding that the City’s housing decisions were made

with the intention and the effect of perpetuating housing

segregation; and (3) in holding the City liable for mak-

ing decisions that merely responded to the wishes of its

citizens.

74a

The City challenges the ruling that it is liable for

segregation in the schools, contending principally (1)

that the segregation was caused not by City actions but

rather by Board policies for which the City may not be

held liable; (2) that the record reflects at most the fore-

seeability that City actions would perpetuate and enhance

school segregation, but not any intent on the part of the

City to achieve those effects; and (3) that the court

could not properly take into account, in assessing City

responsibility for school segregation, the mayor’s pattern

of appointing to the Board individuals who espoused the

maintenance of segregation in the schools.

The Board challenges the district court’s ruling that

it is liable for school segregation on the principal grounds

that (1) there was insufficient evidence of its intention

to discriminate, and (2) the court could not properly

take into account the intentionally segregative conduct

of the City in determining whether the Board should be

held liable. The Board also contends that “minority”

should have been defined to include only blacks, not his-

panics, and that with that redefinition, the schools could

not be found to be in fact segregated.

As discussed in Part C. below, both the City and the

Board contend that various aspects of the district court’s

remedial orders go beyond the proper bounds of discre-

tion.

We have considered all of the arguments made by the

City and the Board on these appeals and find all of them

to be without merit. Only those mentioned above warrant

discussion.

I. GENERAL PRINCIPLES

A. Substantive Law and the Requirement of Intent

It is by now well established that in order to prove a —

claim of discrimination in violation of the Equal Pro-

tection Clause a plaintiff must show not only that the

75a

state action complained of had a disproportionate or dis-

criminatory impact but also that the defendant acted

with the intent to discriminate. This principle governs

claims of discrimination in housing, see Village of Ar-

lington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 265 (1977) (“Arlington Heights

I”), and claims of segregation in the schools, see Keyes

v. School District No. 1, 413 U.S. 189, 198 (1973)

(“Keyes”). See generally Washington v. Davis, 426 U.S.

229, 239 (1976).

In order to prevail on an equal protection claim of

racial discrimination, the plaintiff need not show that the

decisionmaker was motivated solely, primarily, or even

predominantly by concerns that were racial:

[Washington v.] Davis does not require a plaintiff

to prove that the challenged action rested solely on

racially discriminatory purposes. Rarely can it be

said that a legislature or administrative body oper-

ating under a broad mandate made a decision moti-

vated solely by a single concern, or even that a

particular purpose was the “dominant” or “pri-

mary” one.

Arlington Heights I, 429 U.S. at 265 (footnote omitted).

Rather, the plaintiff need begin only by showing that

race was “a motivating factor.” Jd. at 266 (emphasis

added). Once it is shown that a decision was motivated

at least in part by a racially discriminatory purpose, the

burden shifts to the defendant to show that the same

result would have been reached even without considera-

tion of race. Jd. at 270 n.21; Mt. Healthy School District

Board of Education v. Doyle, 429 U.S. 274, 287 (1977).

If the defendant comes forward with no such proof or if

the trier of fact is unpersuaded that race did not con-

tribute to the outcome of the decision, the equal protec-

tion claim is established.

76a

As to a claim under the Fair Housing Act, in contrast,

the consensus is that a plaintiff need prove only discrimi-

natory effect, and need not show that the decision com-

plained of was made with discriminatory intent. See,

e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032,

1036-38 (2d Cir. 1979) (collecting cases) :

“To establish a prima facie case of racial discrimi-

nation, the plaintiff need prove no more than that

the conduct of the defendant actually or predictably

results in racial discrimination; in other words,

that it has a discriminatory effect. . . . The plaintiff

need make no showing whatsoever that the action

resulting in racial discrimination in housing was

racially motivated. . . . Effect, and not motivation, is

the touchstone, in part because clever men may

easily conceal their motivations ... .”

Id. at 1037 (quoting United States v. City of Black Jack,

508 F.2d 1179, 1184-85 (8th Cir. 1974), cert. denied,

422 U.S. 1042 (1975)). See Arlington Heights I, 429

U.S. 252. 270-71 (‘ruling that equal protection claim

should have been dismissed for lack of proof of dis-

criminatory intent, but remanding for further considera-

tion of Fair Housing Act claim); Metropolitan Housing

Development Corp. v. Village of Arlington Heights, 558

F.2d 1283, 1287-90 (7th Cir. 1977) (“Arlington Heights

Il”) ‘holding that Fair Housing Act claim could be

established by proof of discriminatory effect, without

proof of discriminatory intent), cert. denied, 434 US.

1025 (1978).

The effect in the present case of the differing stand-

ards of proof for the constitutional claim and the Fair

Housing Act claim is, as a practical matter, immaterial,

for the district court found that even if proof of dis-

criminatory intent were required for establishment of a

claim under the statute, the requisite intent was proven.

See 624 F. Supp. at 1293 n.12 (“In light of the strength

77a

of the evidence of intent in the case before us, it is un-

necessary to reach the question whether entitlement to

the broad remedial measures sought by plaintiffs here

could be established under the relaxed ‘effects’ standard

set forth in Arlington Heights 11.”). Since we find no

basis for overturning the district court’s findings of

intent (see Parts B.II.A.2., B.11.B, and B.III.B. below),

and sinee the conduct upon which the housing discrimi-

nation claim is based spans a period that commenced

many years before the 1968 effective date of the Fair

Housing Act, we review the statutory claims, along with

the constitutional claims, in light of the proof of the

City’s segregative intent.

B. Standard of Review

The standard to be followed by the appellate court in

reviewing findings of fact made by the district court is

also clear. Fed. R. Civ. P. 52(a) states that those find-

ings, “whether based on oral or documentary evidence,

shall not be set aside unless clearly erroneous.” Assess-

ments of the credibility of the witnesses are peculiarly

within the province of the district court as trier of fact

and are entitled to considerable deference. Jd. Thus,

“when a trial judge’s finding is based on his decision to

credit the testimony of one of two or more witnesses,

each of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence, that

finding, if not internally inconsistent, can virtually never

be clear error.” Anderson v. City of Bessemer City, 470

U.S. 564, 575 (1985). Even when the district court’s

findings of fact do not rest on credibility determinations

but instead are based on documentary evidence or on in-

ferences from other facts, the appellate court must accept

those findings if they adopt a permissible view of the

evidence; the appellate court may not conduct a de novo

review. In short, “[w]here there are two permissible

views of the evidence, the factfinder’s choice between

ie

78a

them cannot be clearly erroneous.” Jd. at 574; see United

States v. Yellow Cab Co., 338 U.S. 338, 342 (1949).

This standard of review governs questions of fact,

though not questions of law or mixed questions of fact

and law. A finding of discriminatory intent is a finding

of fact, Pullman-Standard v. Swint, 456 U.S. 273, 287-90

(1982), as are findings of discrimination, Anderson v,

City of Bessemer City, 470 U.S. at 573, and causation,

e.g., Wellner v. Minnesota State Junior College Board,

487 F.2d 153, 156 (8th Cir. 1973).

In accordance with the above principles, if the district

court’s findings as to the existence of segregation in

fact, the existence of segregative intent, and the exist-

ence of a causal relationship between the two are per-

missible inferences from the evidence of record, we may

not overturn them.

Il. THE CITY’S LIABILITY FOR SEGREGATION

IN HOUSING

A. The City’s Obligation with Respect to Subsidized

Housing

The Fair Housing Act makes it unlawful

(a) To refuse to sell or rent after the making of

a bona fide offer, or to refuse to negotiate for the

sale or rental of, or otherwise make unavailable or

deny, a dwelling to any person because of race, color,

religion, sex, or national origin.

42 U.S.C. § 3604(a) (emphasis added). The statute de-

fines “dwelling” as “any building . . . intended for

occupancy as[] a residence by one or more families, and

any vacant land which is offered for sale or lease for

the construction or location thereon of any such building

... Id, §3602(b). The City’s contention is that

neither the Pair Housing Act nor the Equal Protection

Clause imposes on it any obligation to construct housing,

that it has constructed housing that it has made avail-

79a

able to all persons regardless of race, and that the law

requires no more of it. In the circumstances of the

present case, we disagree.

Though we know of no statutory or constitutional pro-

vision that imposes on a municipality a general obliga-

tion to construct subsidized housing, see Acevedo v.

Nassau County, 500 F.2d 1078, 1081-82 (2d Cir. 1974),

more focused principles govern the present case. In

Acevedo, the thrust of the complaint was that the de

fendant county had initially planned to build both senior

citizen and family housing and that its abandonment of

the plan to build family housing had a disproportionate

impact on minorities. See id. at 1081. The district court,

after a trial, found that the abandonment had neither

discriminatory effect nor a discriminatory motive. See

id. at 1079-80. Accordingly, we held that the abandon-

ment violated neither the Constitution nor the Fair

Housing Act. See id. at 1082. This does not mean that

we would have reached the same conclusion in the face

of findings that there had been discriminatory impact

and discriminatory intent, for the absence of a general

obligation to construct does not give the municipality

license to proceed discriminatorily once it has started

down the road to construction. Thus, the Sixth Circuit,

for example, has upheld a “pattern and practice” claim

under the Fair Housing Act, see 42 U.S.C. § 3613(a),

where the defendant city had applied for federal funds

that it in fact wanted and needed, but had abandoned its

application for reasons found to be racially discrimina-

tory. United States v. City of Parma, 661 F.2d 562, 575

(6th Cir. 1981), cert. denied, 456 U.S. 926 (1982).

Nor, once a municipality has decided to construct hous-

ing, may it lawfully proceed with segregative intent and

effect to confine housing for minority occupancy to areas

in which minority residence is already concentrated,

thereby enhancing and perpetuating racial segregation

in residential patterns. In Otero v. New York City Hous-

80a

ing Authority, 484 F.2d 1122 (2d Cir. 1973), we noted

obiter that “Congress’ desire in providing fair housing

throughout the United States was to stem the spread of

urban ghettos and to promote open, integrated housing,”

id. at 1034, and that, accordingly, “{a]n authority may

not ... select sites for projects which will be occupied by

non-whites only in areas already heavily concentrated

with a high proportion of non-whites,” id. at 1033. The

Third Circuit reached a similar conclusion in Shannon

v. United States Depariment of Housing and Urban De-

velopment, 436 F.2d 809 (3d Cir. 1970), which involved

a challenge to HUD’s approval of a rent-subsidy contract

for a new building in an urban renewal area of Phila-

delphia. The thrust of the complaint was that the loca-

tion of a rent-subsidy project in that area would have

the effect of increasing the already high concentration

of low-income black residents there, and that HUD had

not properly considered the effect of such a subsidy guar-

antee on the racial concentration in Philadelphia as a

whole or in that neighborhood in particular. 7d. at 811-

12. The court of appeals agreed that HUD had not

considered those effects, and it vacated the district court’s

denial of relief, stating that “|i]ncrease or maintenance

of racial concentration is prima facie .. . at variance

with” the policy underlying the Fair Housing Act. IZd.

at 821. Consistent with these views, when we held in

Acevedo that there was no constitutional violation in

the defendant’s decision, made with no discriminatory

intent, not to construct housing, we took care to distin-

guish cases in which municipalities had intentionally

pursued their construction plans in a segregative man-

ner, “effectively restrict{ing] low income housing projects

to segregated neighborhoods.” See 500 F.2d at 1081 n.3.

Accordingly, the district court properly rejected the

City’s contention that its decisions not to construct minor-

ity housing in any virtually all-white area were immune

from scrutiny, and appropriately proceeded to determine

8la

whether housing in Yonkers was in fact segregated,

whether that segregation was caused or enhanced in sub-

stantial part by the City’s conduct, and whether that

conduct was intentionally segregative.

1. Segregative Effect of the City’s Actions

The district court found that by 1980 an “extreme

condition of segregation .. . exist{ed] in Yonkers.” 624

F. Supp. at 1364. The evidence amply supports this find-

ing.

The 1980 Census figures showed that 81% of Yonkers’s

minority residents lived in one quadrant of the City.

Minorities constituted 19% of Yonkers’s total popula-

tion; yet the minority population of Southwest Yonkers

exceeded 40%. Of the 10 census tracts within Southwest

Yonkers itself, five had minority populations exceeding

50%. In contrast, outside of Southwest Yonkers, only

6% of the residents were minorities; and these minority

residents were largely confined to two areas, one having

a minority population of 29% and the other having a

minority population of 80%. In light of these facts, we

have no difficulty in upholding the district court’s finding

that housing in Yonkers was segregated.

Nor do we see a basis for upsetting the finding that

the City’s decisions to locate low-income housing only in

or adjacent to areas already having high concentrations

of minority residents was a contributing cause of the ex-

treme condition of residential segregation that existed

by 1980. From 1948 to 1980, some 144 sites were for-

mally proposed to the City for subsidized housing, most

of them in East or Northwest Yonkers or predominantly

white neighborhoods of Southwest. More than 100 other

sites, the vast majority of them in East or Northwest

Yonkers, were also given official consideration. In all, 23

family housing sites were approved; of these, 21 were in

Southwest Yonkers; one was in Northwest, abutting a

82a

heavily minority neighborhood of Southwest; and one—

the only family project approved for an area that was

neither within nor abutting Southwest Yonkers—was in

the predominantly black Runyon Heights. See Appendix

B. Of the 21 family housing sites approved for South-

west, 18 were in or adjacent to neighborhoods already

having high minority concentrations, one was a half-

block away from such a concentration, and the other

two were but five blocks away.

Only one subsidized housing project was approved for

a nonminority area outside of Southwest Yonkers: it was

not a family project but a senior citizen project which, as

expected, was occupied predominantly by white persons.

Thus, over a period of more than three decades, the City

approved no housing for minorities in any area that was

not in or close to an already heavily minority area.

The demographic effect of concentrating minority-

intended housing in the already concentrated minority

areas was predictable. From 1960 to 1970, while the mi-

nority population of East and Northwest Yonkers in-

creased by 1,879 persons, or 61%, the minority popula-

tion of Southwest Yonkers increased by 10,333, or 5.5

times as many, persons. In percentage terms, the minor-

ity population of Southwest increased by 186%, from a

starting base that was nearly twice as large as that in

East and Northwest Yonkers combined. From 1970 to

1980, when the minority population of East and North-

west Yonkers increased by 438%, the minority population

in Southwest Yonkers increased by 87%; in raw num-

bers, the net increase of minority residents in Southwest

Yonkers outpaced the minority increase in other parts of

Yonkers by 13,783 to 2,119. In all, during the period

1960 to 1980, when virtually all of the low-income mi-

nority housing at issue here became available for occu-

pancy, all of it confined to areas that already had high

minority concentrations, the minority population of

This text is long and has been trimmed here. Open the source document for the complete record.