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September 27, 1967

Timothy BRYANT by Glendon Bryant, his parent and next friend et al., Plaintiffs,

The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

 Plaintiffs, the parents of Negro school children in the City of Mount Vernon suing on their behalf, seek a decree (1) enjoining defendants the Board of Education and the Superintendent of Schools from maintaining a "neighborhood school policy" pursuant to which it is alleged plaintiffs are assigned to schools on the basis of race; and (2) directing defendants to adopt a plan resulting in the assignment of pupils to a school without regard to their race. This court has jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Discovery having been completed, defendants now move for summary judgment pursuant to Rule 56(a), F.R.Civ.P.

 The gravamen of the complaint, in the light of the facts elicited during discovery, is that the defendants have utilized the so-called "neighborhood school system" to maintain racially segregated schools in Mount Vernon. Plaintiffs contend that unconstitutional discrimination was practiced in two respects. The first involves the claim that between 1945 and 1955, 49 white pupils were permitted to transfer from what is alleged to have been the predominantly Negro Fulton School, in the area where they resided, to other predominantly white schools. The second is to the effect that defendants, once in 1945 and again in 1955, "gerrymandered" attendance zone lines for certain schools with the intention of removing white pupils from predominantly Negro schools to predominantly white schools.

 1. Basic Facts About the City of Mount Vernon.1

 A full understanding of the questions presented requires an examination of the racial situation in the City of Mount Vernon as it has developed over more than two decades. The City of Mount Vernon, which is co-extensive with the City School District under the Education Law of New York, comprises an area of approximately 4.2 square miles, with a population of over 76,000. The City boundaries define an area which is, roughly square in shape. According to the United States census of 1960, Mount Vernon was the ninth most densely populated community in the entire nation. The City has for many years had a large industrial and commercial area along its western and southern borders, and the heart of the business district is located in the central and southern portions of the City, with the northern and eastern sections comprising the residential areas. An important physical feature of Mount Vernon, from the point of view of its neighborhood school policy, is the presence of the New York, New Haven & Hartford R.R., whose tracks, running east and west, divide the City into two virtually equal sections. As a protection for the children no elementary school attendance zone has ever been extended across the railroad tracks.

 At the time of World War II, the population of Mount Vernon was nearly 100% white. The influx of Negroes, primarily from nearby New York City, began slowly after the war so that - and the figures are approximations - the population of Mount Vernon was 10% Negro by 1950. In the following decade the Negro population increased by 91%, while the white population decreased by 5% in the City as a whole. Thus by 1960 Negroes comprised approximately 20% of the City's total population. Since 1960 the Negro population has continued to increase; white population has declined. It is estimated that 30% of the City's present population is Negro, with perhaps as many as 80% of these residents living south of the railroad tracks which bisect the City.

 2. The Neighborhood School System.

 At present the public elementary school system in Mount Vernon - serving more than 6,500 children, ages 5-11, in the kindergarten through sixth grade - consists of eleven schools; each of these is located in one of the eleven attendance zones into which the City has long been divided by the local school authorities. *fn2" The elementary schools south of the railroad tracks, and the ones with which this case is directly concerned, are Grimes, Hale, Fulton, Graham and Longfellow. The policy of dividing the City into attendance zones, so that children residing in an area are assigned to a school near their homes, was devised and implemented at least as early as 1922, when the present City Charter was adopted. There is no question that this system of school assignment - characterized here as the "neighborhood school policy" - was firmly established in Mount Vernon, as in most communities throughout the State, long before the City witnessed any significant influx of Negro population.

 At least as initially adopted, then, Mount Vernon's neighborhood school policy was not a device or scheme for assigning students to schools on the basis of race. On the contrary, the system of assigning children to schools in close proximity to their homes was deemed to have - and still has - a number of advantages in terms of both practical considerations and sound educational policy. The beneficial effects of the neighborhood school - as well as some of the disadvantages - have been well-catalogued elsewhere. *fn3" It is therefore unnecessary to dwell at great length on the advantages of an educational arrangement that permits small children to attend schools within a safe and convenient distance from their homes; that provides a neighborhood center where the pupils can readily join in after-hours programs and parents can conveniently participate in school affairs; and that at the same time avoids local expenditures for transportation and lunchroom facilities. Indeed, only one of the eleven elementary schools in Mount Vernon presently has facilities for serving food to its attending pupils.

 3. Governing Legal Principles.

 No extended discussion of the applicable law is necessary. Ever since Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), it has been settled that the equal protection clause of the Fourteenth Amendment bars school segregation mandated by official racial classification. This cardinal principle has been applied on numerous occasions by courts in every part of the land. *fn4" It is true that the full reach of the constitutional right to an equal educational opportunity poses difficult problems when segregation results from de facto rather than official policies of de jure discrimination. *fn5" But our case is not so difficult. The complaint charges the Mount Vernon School Board with intentional racial discrimination. If established by the proof both the transfer of white children out of Negro school districts, see Goss v. Board of Educ., 373 U.S. 683, 83 S. Ct. 1405, 10 L. Ed. 2d 632 (1963), and the gerrymandering of school attendance zones to perpetuate racial segregation, see Taylor v. Board of Educ., 191 F. Supp. 181 (S.D.N.Y.), modified plan approved, 195 F. Supp. 231, aff'd, 294 F.2d 36 (2d Cir.), cert. den., 368 U.S. 940, 82 S. Ct. 382, 7 L. Ed. 2d 339 (1961); Dowell v. School Board, 244 F. Supp. 971 (W.D.Okl.1965), aff'd as modified, 375 F.2d 158 (10th Cir. 1967), would constitute classic violations of the principles enunciated by Brown v. Board of Educ. The only issue on this motion is whether there is sufficient evidence before the court to justify the grant of summary judgment to defendants on the two basically simple claims of purposeful de jure segregation.

 4. Alleged Improper Permissive Transfers.

 The defendants have completely disproved the contention that the Board of Education permitted the transfer of white children to escape predominantly Negro school districts. The facts which defendants adduced bearing on this issue conclusively established that the transfers were not made for any such reasons. Defendants, at least since 1947, when Mount Vernon had virtually no racial imbalance in its elementary schools, have pursued a consistent policy of forbidding transfers except for situations of special hardship. *fn6" Race has not been a consideration of special hardship justifying transfer. *fn7"

 The records of the Board disprove plaintiffs' allegations that 49 white pupils were permitted to transfer improperly. Of the 49 pupils named, seven are Negroes; 47 of the transfers were occasioned by simple changes in residence from one district to another; one retarded student was permitted to attend a special education class in another district; the last student had a serious eye affliction and was given permission to attend the only school with a special sight-saving class.

 These facts, set forth in the affidavit of Anthony Zuzolo, head of the Attendance Department of the Mount Vernon public school system, are based on his personal examination of the pupil index cards which are kept at the Education Center in Mount Vernon. *fn8" The proof presented by defendants to the effect that the motivation for the transfer of the 49 students was entirely proper stands uncontradicted.

 There is thus no genuine issue of material fact to be tried with respect to alleged improper transfers and defendants are entitled to summary judgment ...

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