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OLIVER v. DONOVAN

November 26, 1968

Rev. C. Herbert OLIVER et al., Plaintiffs,
v.
Bernard E. DONOVAN, Superintendent of Schools for the City of New York, et al., Defendants



The opinion of the court was delivered by: TRAVIA

TRAVIA, District Judge.

 The plaintiffs bring on this matter by way of order to show cause seeking a temporary restraining order enjoining the defendants from continuing to:

 1. take any action to compel the plaintiffs to retain within the School District of Ocean Hill-Brownsville teachers whom the Local Governing Board of the District has determined should be transferred out of the District;

 2. station police in and around the Ocean Hill-Brownsville schools to enforce the terms of an agreement made by defendants pursuant to the settlement of a strike declared illegal by the New York Supreme Court; and

 3. enforce the suspension and/or removal of principals of the Ocean Hill-Brownsville schools and the unit administrator Rhody McCoy, who have been selected by the community and/or community representatives.

 Attached to the motion papers is the affidavit of one of the plaintiffs, Reverend C. Herbert Oliver, and the verified complaint. It is on these papers that the order to show cause was obtained and signed by this Court on October 11th, 1968.

 The request for a restraining order as to item number "1" in the order to show cause was withdrawn. Consequently, all issues relating to these teachers have been removed from the case.

 The plaintiffs moved to amend their application before the Court to include a request for a temporary restraining order enjoining the defendants, or any of them, from closing J.H.S. 271.

 This motion is granted and ordered included in the order to show cause as item number "4".

 We shall, therefore, deal with items "2", "3" and "4" in the order to show cause, the complaint and all the papers, exhibits and proceedings had.

 In their complaint, the plaintiffs invoke the jurisdiction of this Court under Title 28 U.S.C. §§ 1331, 1343(3) and (4). In addition, they assert the action is authorized by Title 42, U.S.C. §§ 1981, 1983, 1985, 1986 and 1988. They claim the action arises under the 13th and 14th Amendments to the Constitution of the United States. (Par. 12, p. 5, complaint.)

 At the outset and after a careful reading of all the papers submitted and the initial argument, there appeared to be a serious question as to this Court's jurisdiction.

 A hearing was afforded to the plaintiffs to give them an opportunity to show by testimony and exhibits a basis upon which jurisdiction of this Court could be established.

 A study of the complaint shows that paragraphs "1" through "19" are preliminary or conclusory in nature, used to describe the charges, the alleged jurisdiction of the Court and the background of the present dispute leading up to a crippling strike of the City's school teachers and supervisors.

 In paragraphs "20" through "24" plaintiffs assert that the dispute came to a head when the Governing Board and Administrator of the Ocean Hill-Brownsville Demonstration School District attempted to transfer 13 teachers and 6 administrators out of the district because of their actions in opposition to school decentralization. As a result of the attempted transfer of the 19 staff members, some 350 teachers in the district remained away from their jobs in sympathy during the last 6 weeks of school in the Spring of 1968. New teachers were recruited over the summer to replace most of those who left their positions in the Spring. By the opening of school in September, 1968 it appeared that approximately 100 of the original 350 wanted to return. The Governing Board, however, requested that these 100 teachers be assigned elsewhere.

 Problems relating to these teachers led to a strike.

 In paragraph "25" plaintiffs charge defendants Lindsay, Donovan and members of the Central Board of Education, with encouraging, aiding, and giving sanction to the illegal strike of the United Federation of Teachers, and that the teachers have not lost pay as a result of their illegal strike.

 In paragraph "26" of the complaint it is alleged the specific demand of the defendant Shanker has been that notwithstanding the determination of the community to rid itself of teachers who took action contrary to the decentralization program and who illegally struck against their children, the Governing Board be compelled to place those teachers in teaching positions in the classrooms of the Ocean Hill-Brownsville District, and in order to compel adoption of his program the defendant Shanker is willing to prevent the functioning of the entire educational system of the City.

 In paragraph "27" of the complaint the plaintiffs allege that notwithstanding that it must be acknowledged that any insistence that the said teachers be placed in teaching positions not only is contrary to the wishes of the community but is destructive of any possibility of successful development of the educational program of the Ocean Hill-Brownsville District, the defendants Central Board, Donovan, and Mayor Lindsay have yielded to continued threats of a third illegal strike by the defendant Shanker. Pursuant thereto, the defendants Central Board, Donovan, Mayor Lindsay and Chief of Police have sought to compel the placement of the replaced teachers in classrooms in the Ocean Hill-Brownsville District and, beginning October 7, 1968, have placed over 1,000 policemen in the said District. As a result of all the foregoing, education in the Ocean Hill-Brownsville District is at a standstill.

 In paragraph "28" of the complaint the plaintiffs allege as follows:

 The adoption of a plan of decentralization and the involvement of the community in the development of a new approach to education was designed to correct the denial of education for the Black and Puerto Rican children of the Ocean Hill-Brownsville District. The defendants have deprived these children of quality education as developed by the Ocean Hill-Brownsville District and have therefore deprived rights guaranteed under the Thirteenth and Fourteenth Amendments to the Constitution of the United States, to wit:

 A. The defendants are attempting to impose the terms of an agreement negotiated by the New York Central Board of Education and the United Federation of Teachers, without the participation of the Ocean Hill-Brownsville Governing Board or any other representatives from the local communities of New York City having a stake in quality education through decentralized community control. The agreement itself and the attempt to enforce the agreement were not made to meet any lawful need or purpose, but expressly as a response to a strike declared illegal by the New York Supreme Court. This action was taken by the defendants knowing full well that the consequences thereof would be disruption of education in the Ocean Hill-Brownsville District, and the disruption of decentralization in the entire City of New York.

 B. The attempt to impose and enforce the terms of the aforementioned agreement has in fact resulted in the disruption of the school system in Ocean Hill-Brownsville and in the education of the children who attend school in that District, to wit:

 (1) Defendants have caused massive numbers of police to be stationed in and around the Ocean Hill-Brownsville schools to enforce the terms of the aforementioned agreement. The police have and are continuing to:

 a. deny parents and other members of the community the right to enter the schools;

 b. harass, intimidate, molest and arrest members of the community who wish to enter the schools;

 (2) At least one school in the district has been closed;

 (3) The Local Governing Board and the Unit Administrator, pursuant to a directive issued by the Central Board, have been suspended, thereby denying to plaintiffs the right to run and control schools through representatives of the community;

 (4) Principals chosen by the community or its representatives have been suspended and removed from the District's schools pursuant to a directive issued by the Central Board.

 C. Defendants' attempt to enforce the agreement, and the actions taken pursuant thereto, are designed to destroy and/or have the effect of destroying the rights of plaintiffs and the class they represent to achieve quality education through a system of decentralized community control of the schools in New York City.

 In paragraph "29" plaintiffs assert their basic position, which is, that the 13th and 14th Amendments impose on defendants a duty not to interfere with the development of quality education for Black and Spanish-speaking children of New York and equality of education with White children. And finally, the Amendments also impose an affirmative duty to develop, support and protect quality and equality of education for the Black and Spanish-speaking children of New York.

 On the basis of the complaint and the order to show cause, the plaintiffs ask that this Court issue a preliminary and permanent injunction enjoining the defendants, their attorneys, employees and agents, acting individually or in concert from:

 (1) engaging in conduct designed to deny and/or having the effect of denying plaintiffs and the class they represent their Thirteenth and Fourteenth Amendment rights to insure quality and equality of education for their children and the children of all minority groups residing in the City of New York;

 (2) attempting to impose the terms of a negotiated settlement arrived at between the New York Central Board of Education and the United Federation of Teachers without the participation of the Ocean Hill-Brownsville Local School Board or any other representatives from the local communities of New York City having a stake in quality education through decentralized community control;

 (3) taking any action to compel the plaintiffs to retain within the School District teachers whom the Governing Board has determined should be transferred out of the District;

 (4) stationing police in and around the Ocean Hill-Brownsville schools to enforce the terms of the aforementioned agreement pursuant to a settlement of a strike declared illegal by the New York State Supreme Court;

 (5) encouraging, aiding and giving sanction to the strike declared illegal by the New York Supreme Court by:

 a) paying those teachers who struck the Ocean Hill-Brownsville schools in the Spring of 1968;

 b) rearranging the school year of 1968-69 in a fashion that permits the teachers who struck the schools in the Fall of 1968 to be paid for most of the days schools were closed as a result of the strike declared illegal;

 (6) continuing to enforce the suspension and/or removal of principals of the Ocean Hill-Brownsville schools and the Unit Administrator, Rhody McCoy, selected by the community and/or community representatives;

 (7) otherwise threatening, intimidating, and/or harassing plaintiffs by actions designed to deny and/or have the effect of denying to plaintiffs the system of quality education in effect at the Ocean Hill-Brownsville School District prior to defendants' intervention therein.

 An understanding of the legal status of the Ocean Hill Board is essential to an appraisal of the legal sufficiency of plaintiffs' attempts to state a cause of action predicated upon a denial of equal protection.

 Until the Marchi Act (Laws 1968, Ch. 568, effective June 5, 1968) was enacted, there was nothing in the Education Law or any other statute authorizing (a) the establishment of any such local board as a body having official powers or (b) the exercise of any educational or other powers by such a local board or (c) the delegation of any of the powers of the Board of Education to such a local board.

 During the entire period involved, therefore, and in the Spring of 1968 when the Ocean Hill Board first purported to "dismiss" and then "transfer" 19 teachers and supervisors, it had no legal or governmental powers and no status other than as an unofficial body of citizen advisors. The Ocean Hill demonstration project, as then existing, consisted of the operation of a special group of schools by and under the control of Board of Education personnel, with the Ocean Hill Board acting in an advisory capacity.

 The Marchi Act authorizes the Board of Education, with the approval of the Regents, to delegate functions, powers and duties of that Board to local boards until June 30, 1969 and the Board of Education on September 4, 1968, adopted a resolution providing for delegation of certain of its functions, powers and duties to local boards (Exhibit C attached to Donovan affidavit). The Regents approved this delegation on October 17, 1968, effective October 18, 1968.

 The Unit Administrator of the district, Mr. McCoy is a temporary appointee employed by the Board of Education (Donovan affidavit, par. 10). As such an employee, he is required to perform his duties under the direction and supervision of the Superintendent of Schools (Education Law, § 2566, McKinney's Consol.Laws, c. 16, Subd. 6) and subject to the directions of the Board of Education (Education Law, § 2552, § 2554, Subd. 15, par. a).

 It is well established in this State that it is unlawful for any public official or body, without statutory authorization, to attempt to delegate its governmental powers. Matter of Behringer v. Parisi, 5 N.Y.2d 147, 151, 182 N.Y.S.2d 365, 156 N.E.2d 71 (1959); Matter of Blount v. Forbes, 250 App.Div. 15, 293 N.Y.S. 319 (1st Dept., 1937). Dealings between the Board of Education and the Ocean Hill Board could not result in any such delegation, since no statute permitted such a conferral. Moreover, the Board of Education never adopted any resolution delegating any powers to the Ocean Hill Board, except for the September 4, 1968 resolution which was approved by the Regents. Accordingly, the Ocean Hill Board has only such powers as were delegated by the September 4, 1968 resolution, plus the power to appoint a local superintendent of schools, as conferred by the Marchi Act.

 The witnesses of the plaintiff testified in substance that the Ocean Hill-Brownsville area is a poor section of the City, having a large majority of Black and Puerto Rican inhabitants; that most of the children in the 8 schools in the district are Black and Puerto Rican; that some of the schools selected for inclusion in the district were among the worst in the area; that prior to the time the demonstration project began functioning in the Fall of 1967, there were high rates of pupil and teacher absenteeism, there were high rates of student dropouts, serious disciplinary problems existed, and the students' performance was frequently below grade level; that, in addition, the schools were over-crowded, run-down, and understaffed; that during the course of this past year, however, most of these problems have been relieved or have disappeared altogether; that new I.S. 55 was opened in the district in February 1968; that a pupil-teacher ratio of about 19 to 1 has been achieved; that parents have taken a much greater interest in the operation of the schools; new programs and new methods of teaching have been devised to improve student performance; special classes have been introduced for the more gifted pupils; absenteeism, disciplinary problems and the drop-out rate have shown marked improvement. In general, the witnesses from the district testified that remarkable progress had been made during the past year in the schools in that area.

 Mr. John Doar, President of the Board of Education, was called for the purpose of discussing proposals that have been considered by the Central Board and the Mayor to close I.S. 271 on a temporary basis. Mr. Doar testified that the Board had not approved the closing of I.S. 271 for educational reasons but it did recognize that the Mayor had the authority to close I.S. 271, if necessary, for reasons of public safety.

 Mr. Doar testified that it was his understanding that in the event the Mayor should close I.S. 271 it would be reopened as soon as safety factors would permit.

 The facts as they unfold are substantially as set forth in the affidavit of Dr. Bernard E. Donovan, Superintendent of Schools, dated October 15, 1968. One must first read his affidavit to get a view of the broad picture and then the papers and testimony as adduced to find out whether there is a valid complaint upon which this Court can assume jurisdiction.

 It appears from the papers before this Court that in May, 1968, the Ocean Hill Board notified 13 teachers and 6 supervisors of the district that they were "dismissed". This action was taken without charges or a hearing on the basis of a claim by the Ocean Hill Board that these employees were unfit for service. Subsequently the Ocean Hill Board changed this action to a request for a transfer of these employees on the ground of claimed unfitness.

 In accordance with the usual procedure of the Board of Education in cases where allegations of dereliction are made against teachers and supervisors, the Superintendent of Schools refused to transfer these employees without an investigation of the allegations and an opportunity for the employees to respond to the accusations.

 The Ocean Hill Board filed charges of unfitness against 10 of the accused 19 employees, the other 9 employees having been eliminated from the attempted ouster by voluntary transfer or otherwise. The teachers were acquitted of these charges after a trial before Mr. Justice Rivers, acting as a Trial Examiner for the Board of Education. Judge Rivers recommended to the Board of Education that the demand of the Ocean Hill Board for the transfer of the teachers be rejected. (The report and recommendations of Judge Francis E. Rivers, dated August 26, 1968, is attached to the affidavit of Abraham Wilner, Assistant Superintendent of Schools, in charge of personnel, dated October 21, 1968.)

 The Superintendent of Schools and the Board of Education accepted the recommendation of Judge Rivers.

 Despite the acquittal, the Ocean Hill Board, prior to the opening of the Fall, 1968, term, declared that it would not permit the 10 teachers to return to their teaching positions and, in addition, that it would also oust approximately 100 teachers who absented themselves from their schools in the Spring of 1968 in protest against the attempted transfer.

 The Ocean Hill Board did not have, at the time of these actions, and up to the time of the conclusion of this hearing did not possess, any legal power, jurisdiction or authority (a) to transfer teachers out of the schools of the Ocean Hill-Brownsville district or (b) to determine the fitness and competency of teachers, or (c) to refuse teaching assignments to any teacher duly assigned to the district or (d) to countermand orders of the Board of Education on any subject.

 The Board of Education, after efforts to persuade the Ocean Hill Board and the Unit Administrator, Mr. McCoy, to allow these teachers to return to their rightful teaching positions, submitted the matter to the State Commissioner of Education. The Commissioner, after reviewing the facts and hearing the contentions of the Ocean Hill Board, the Board of Education and the United Federation of Teachers, issued a determination on September 14, 1968, ruling (a) that the efforts of the Ocean Hill Board to oust the teachers were illegal and contrary to sound educational ...


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