decided: November 21, 1973.
MICHAEL AND CYNTHIA PRIDE, MINORS, BY THEIR MOTHER AND NEXT FRIEND BULENA PRIDE, DONALD THOMAS, A MINOR, BY HIS FATHER AND NEXT FRIEND DONALD THOMAS, AUDRA HARRIS, A MINOR, BY HER MOTHER AND NEXT FRIEND MARTHA HARRIS, LEONARD JOHNSON, A MINOR, BY HIS MOTHER AND NEXT FRIEND SHIRLEY JOHNSON, JAMES MADISON TATUM, JR., A MINOR, BY HIS MOTHER AND NEXT FRIEND SARAH TATUM, LENORA AND WENDELL MIDDLEBROOKS, MINORS, BY THEIR MOTHER AND NEXT FRIEND MATTIE MIDDLEBROOKS, JUDITH MITCHELL, A MINOR, BY HER MOTHER AND NEXT FRIEND MAE MITCHELL, MONIQUE MAYE, A MINOR, BY HER MOTHER AND NEXT FRIEND ANNIE MAYE, DAVID DOLPHIN, A MINOR, BY HIS MOTHER AND NEXT FRIEND DOROTHY DOLPHIN, BRENDA ROBINSON, A MINOR, BY HER FATHER AND NEXT FRIEND JAMES ROBINSON, GINA BOATRIGHT, A MINOR, BY HER MOTHER AND NEXT FRIEND JOAN BOATRIGHT, AND THE CONCERNED PARENTS OF TILDEN, AN UNINCORPORATED ASSOCIATION, FOR THEMSELVES AND ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
THE COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, A BODY CORPORATE, HARVEY GARNER, AS ACTING COMMUNITY SUPERINTENDENT OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, JACK ZIMMER, RABBI I. FRANKEL, MRS. FRANK, MRS. BARKIN, MRS. SCHULTZE, MR. NOLAN, MR. FAZIO, DOCTOR LAPIDOT AND MR. WEINSTEIN, AS MEMBERS OF THE COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, DOCTOR HARVEY SCRIBNER, CHANCELLOR, BOARD OF EDUCATION OF THE CITY OF NEW YORK, SEYMOUR LACHMAN, ISAIAH ROBINSON, JOSEPH MONSERRAT, MURRAY BERGTRUM AND JAMES REGAN, INDIVIDUALLY AND COLLECTIVELY IN THEIR OFFICIAL CAPACITIES AS MEMBERS AND OFFICERS OF THE NEW YORK CITY BOARD OF EDUCATION, DEFENDANTS-APPELLEES
Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, denying a motion by a class of black and other non-white school children allegedly discriminated against on account of race for a preliminary injunction against a plan assigning members of the class to schools in Community School Districts Nos. 20, 21 and 22, and directing their enrollment in schools in Community School District No. 18.
Hays, Feinberg and Timbers, Circuit Judges.
This is our second encounter with the dispute concerning the placement in New York City public schools of children from the Tilden Houses of Brooklyn.*fn1 In this phase of the litigation plaintiffs moved for a preliminary injunction against an order by the City Board of Education assigning Tilden House children first entering public school to districts other than District 18. The United States District Court for the Eastern District of New York denied the motion. The court found that plaintiffs had failed to show probability of success and irreparable harm or that the balance of hardships weighed decidedly in their favor. We affirm.
The Tilden Houses are located in the predominantly black and Puerto Rican section of Brooklyn known as Brownsville. To the south and southeast of Brownsville lie the racially mixed neighborhood of East Flatbush and the predominantly white neighborhood of Canarsie. In 1962 the Board of Education, in an effort to promote integration, rezoned the Tilden House children from the neighborhood Brownsville schools, which subsequently became part of District 23, into schools in East Flatbush, which has become part of District 18.
In 1970 much of the authority for governing the elementary and junior high schools of New York City was transferred from the City Board of Education to Community District School Boards pursuant to New York's School Decentralization Law (New York Education Law, Article 52-A, § 2590 et seq. [McKinney's 1970]).
In May, 1971 the Community School Boards of Districts 18 and 23 entered into an agreement whereby Tilden House children would be zoned into their neighborhood schools in District 23 for the school year beginning September 1971. School Chancellor Scribner rejected this agreement, and the City Board of Education and the Commissioner of Education sustained the Chancellor's decision.
Further difficulties developed when the District 18 Community Board refused to assign Tilden House children to Junior High School 285, the junior high school in District 18 which Tilden House children had previously attended. Chancellor Scribner again reversed the Community Board and ordered it "to assign the Tilden Housing children at the junior high school level either to J-285 . . . and/or to other schools in your district where integrated education would be possible." The Community Board refused to follow this directive, and Chancellor Scribner superseded the Community Board and ordered that the Tilden House children be given the option of attending Junior High Schools 285, 211 or 68, all within District 18. He also ordered the Community Board to devise a plan designed ". . . more nearly to equalize integration in these schools starting with the 1973-74 school year."
In January, 1973 the Community Board presented its plan. At this time the ethnic compositions of the three junior high schools were as follows:
School (white) Puerto Rican
The three schools are in the Canarsie section of District 18. JHS 285 is closest to East Flatbush, while JHS 68 is furthest from East Flatbush and Brownsville. The Community Board projected the following figures for 1975 if the existing zoning continued:
School (white) Puerto Rican
The Community Board's plan provided for zoning the Tilden House children into other districts, though it did not indicate which districts.
In January, 1973 Chancellor Scribner accepted the Community Board's plan with an amendment providing that the Tilden House children would continue to attend junior high schools in District 18, subject to future review in light of changing population patterns.
The Community Board appealed the decision of the Chancellor to the City Board of Education. The City Board conducted hearings and on March 30, 1973 issued its decision holding that neither the Community Board's plan nor the Chancellor's plan fully considered that:
"massive ethnic changes are taking place in many of the elementary schools, particularly those into which the Tilden House pupils are zoned. It is clear that the residential changes in these school zones have resulted in the 'other' enrollment becoming the minority. Obviously the changes at the elementary school level have major impact on the junior high schools which are the subject of this appeal.
"This Board finds that neither the plan presented by Community School Board 18 nor the . . . modification of this plan by the Chancellor fully takes these changes into account. The policy of this Board is and continues to be to ...
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