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January 28, 1974

Jeffrey HART, as a minor by his parent and next friend Doris Hart, et al., Plaintiffs,
The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #21, a body corporate, et al., Defendants. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #21, By its President and Member, Evelyn J. Aquila, et al., Defendants and Third-Party Plaintiffs, v. John V. LINDSAY, Mayor of the City of New York, et al., Third-Party Defendants

The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, District Judge.

 This first New York City school desegregation case to reach a federal court is a class action on behalf of children attending Coney Island's Mark Twain Junior High School, Number 239. Defendants are the Community School Board of Brooklyn, New York, School District Number 21, its members and the Chancellor of the Board of Education of the City of New York. Claiming that defendants are maintaining Mark Twain as an unconstitutionally racially segregated and underutilized school, plaintiffs seek declaratory and injunctive relief. The defendant Board and its members contend that segregation, if it exists, is due to housing patterns fostered and maintained by the city, state, and federal authorities who have been impleaded as third-party defendants.


 The evidence shows that Mark Twain is segregated. That segregation was brought about partly through the ghettoization of the core of Coney Island. It is also due to deliberately zoning out of the school white middle-class children, enhancing segregative tendencies and leading to gross underutilization of Mark Twain's physical facilities.

 Both the Community School Board of District 21 and responsible city educational officials recognize that they have the power to desegregate Mark Twain. They have refused to do so because they believe that such action might cause white children from District 21 to leave the public school system by moving to the suburbs, or by transferring to private schools, or by various forms of subterfuge, increasing segregation in the schools of District 21. On the local level there is fear -- substantially unjustified -- for the safety of white children who would be transferred to Mark Twain, concern over the teaching environment in a school where average reading and mathematics levels are much lower than those in any other school in the district; and some latent concern at the prospect of children attending a ghetto school.

 Public officials responsible for new housing in the area have exacerbated the situation by applying housing policies mechanically, discouraging integrated occupation of new housing by child-rearing families of a variety of socio-economic levels. Persons now moving into the thousands of publicly assisted new apartments in this area are overwhelmingly black and Hispanic. The whites are primarily persons beyond child-bearing age. The result has been to insure that local schools zoned to the immediate neighborhood will be segregated.

 Housing and school patterns feed on each other. The segregated schools discourage middle class whites from moving into the area and the segregated housing patterns lead to segregated schools.

 Nevertheless, this area of Coney Island remains fundamentally attractive as a place for all kinds of people to live and to raise and educate children. It is being almost completely rebuilt at a cost to the taxpayers of the city, state and nation of tens of millions of dollars.

 Mark Twain, a school in excellent physical condition, is located in one of the potentially most attractive settings in the city. It is served by an experienced staff devoted to effective education and has a fine program. It can easily accommodate in safety, and educate well, hundreds of children from other parts of District 21 whose presence will eliminate unconstitutional segregation.

 If ever there were a school and an area in New York City where desegregation could be accomplished with benefits to all the children who will attend the school and to the community, it is here. Educational, housing and other officials at all levels of government are required by the Constitution to cooperate in promptly eliminating the effects of segregation at Mark Twain Junior High School.

 The history of Mark Twain can be characterized as reflecting neither de jure segregation -- required by law and custom, typical of southern and borderstate schools of the recent past -- nor de facto segregation, due to segregated neighborhoods arising from purely private decisions of residents without any interference by government, said to be typical of many metropolitan areas in the north. Rather, it reflects both these characteristics. Demographic trends have been accentuated by government choices. Decisions have been made knowing they would encourage segregation and failure to take available steps to reverse segregative tendencies have made a bad situation worse. Whether denominated de facto or de jure, the segregation of Mark Twain is unconstitutional.

 In fairness to the devoted officials from every level of government involved in some way in education and housing, it must be noted that racism was not a significant factor in what occurred in Coney Island. There was no conspiracy to deprive minorities or to enhance the position of whites. On the contrary, those in education were and are devoted to improving the education of all the students in their charge; those in housing were and are dedicated to providing sound housing to all the people living in dreadful slums. Desegregation was the goal of all. But, as is the case of so many tragedies of our times, the many people of good will and fine intentions were overwhelmed by social tides beyond their individual control. And the bureaucracies, instead of imaginatively drawing together all agencies of the government, separately applied the logic of consistency to deaden the spirit of resistance, making segregation inevitable instead of only highly probable.

 The rest of this opinion demonstrates the illegality of the present situation at Mark Twain and requires planning for rectification.


 A. The Area and its Environs

 The New York Metropolitan area consists of New York City, the counties on Long Island, the area to the north on the mainland, and the cities and counties of northern New Jersey, with a total population of over ten million. The largest concentration of black and Hispanic populations are in the Bedford-Stuyvesant area of Brooklyn, Harlem in Manhattan and in the South Bronx. While substantial pockets of black population are located in such places as Newark, Yonkers and Hempstead, and large white neighborhoods are found in Central Manhattan, the general northern pattern is present: large central city concentrations of minorities surrounded by a ring of generally low-income whites, followed by a large suburban ring of generally middle-income whites. By 1968, this trend in Coney Island had become pronounced. In the metropolitan area generally, there has been since 1968 a continuing decrease in white population in the city and an increase in white population in the suburban areas.

 [Map showing concentrations of nonwhite population in Metropolitan New York, and changes of concentrations in District 21, is omitted in published opinion.]

 School District 21 lies in the first outer ring and is inhabited generally by some 290,000 people who are mainly white, lower middle-class. It is an area fronting on the Atlantic Ocean, about 3 miles from east to west and 3 1/3 miles north to south. Some 3 miles north of the northern end of the District is Bedford-Stuyvesant with a large concentration of blacks and Hispanics. Less than ten miles away are the business areas of Manhattan, reached by a number of rapid transit elevated and subway lines.


 Much of the District consists of well kept one and two family homes and small apartment houses built during the period between World Wars I and II. In the post-World War II period a number of large white-occupied housing projects were built by private developers, many with the aid of federally insured loans and some with state and city tax and other aid.

 Coney Island lies in the southern part of District 21. It is a peninsula facing the Atlantic Ocean on the south, lower New York Bay on the west and northwest and Coney Island Creek on the north. Broad sandy public bathing beaches and a wide boardwalk overlooking the ocean have been used by hundreds of thousands of people each summer for generations. Long faded is the elegance of the pre-World War I era when the well-to-do came for summer vacations and commuting was by steamboat from the Coney Island Pier. Almost gone too are the remains of the post-World War I fun period when Luna Park, Steeplechase and the Garden Restaurant of Feltmans ranked with Copenhagen's Tivoli Gardens as places of family amusement and pleasure.

 Sea breezes are still cooling in the summer, and moderating in the winter. Fishing is pleasant off the pier, the fascinating open boat fleet of Sheepshead Bay is nearby. Walking on the boardwalk and swimming are free. One of the world's great aquaria is at hand. A huge indoor public skating rink, a public library, social service centers, religious institutions, rapid transit, open food stands, carnival rides, a view of the city on one side and the sea on the other, and other physical attractions would seem to make this corner of New York an attractive place for children and their parents both to visit and to live in.

 Yet, much of Coney Island became one of the City's worst slums. To see how this came to pass, and to understand this suit, three portions of the peninsula must be examined separately.

 The western nose of the peninsula, eastward to 37th Street, is known as Sea Gate. Its inhabitants are white. For more than fifty years a high fence has isolated it with access controlled by private guards. Inside are middle-class one-family homes along privately owned streets. There has been practically no deterioration over the years and property values have appreciated. Some thirty Sea Gate children out of approximately 100 of junior high school age attend Mark Twain; the rest presumably go to private schools.

 From 37th Street to Stillwell Avenue is the central area. Apart from the amusement section near the boardwalk, it consisted of two main types of housing prior to World War II. There were some brick two and four-family homes and small apartment houses occupied year-round by families of workers and owners of small businesses. There were also wooden summer bungalows. With the severe housing shortage in the late forties and early fifties, the bungalows were "winterized" and occupied by veterans and others with much the same backgrounds as the permanent residents. Availability of housing in the suburbs and in new apartment houses to the east left vacancies. Housing began to deteriorate as speculators rented to welfare families and other poor people. Physical destruction of abandoned buildings by unsupervised youths and their use by addicts increased crime. A sense of desolation and despair led the whites to abandon the area at an accelerating tempo. By the middle-sixties, aged whites, blacks and Hispanics occupied a terrible slum. Already, however, public housing and slum clearance had started. Almost all of Central Coney Island has now been denominated an urban renewal area. By the mid-seventies almost all of it will have been torn down and replaced by large modern apartment buildings built by the city and state, partly with federal funds.

 East of Stillwell Avenue to Ocean Parkway are some modern apartment houses built in the forties and fifties near Ocean Parkway, an extensive area once utilized by Luna Park, and large areas "reclaimed" from wetlands by earlier city dumping and land fill. Large private apartment house developments were built here for the white lower middle-class in the sixties. Rents exclude all but a relatively few middle class blacks and Hispanics.

 [Map showing changes of concentrations of nonwhite population by census tracts is omitted in published opinion.]

 While police precincts and school districts are not congruent, an examination of precinct-by-precinct data on race, income, age, welfare cases and crime, when integrated with evidence in the case, suggests some of the problems. See D. Burnham, "Precinct Crime Compared With Peoples Age, Wealth," New York Times, June 30, 1973, p. 1, col. 1. In Central Coney Island, as compared to the rest of District 21, blacks and Hispanics are in high concentrations; median family income is much lower and families with income less than $4000 is high; (in the District as a whole less than 5% of the families have incomes over $25,000); the percent of population between 14-21 and over 65 years is high; percentage of families on welfare is high; the unemployed non-student male population 16-21 is high; and the homicide and robbery rates are high. As of 1969 the City Planning Commission found the welfare rate to be three times the city average; juvenile delinquency was two and one-half times the citywide average; and 45 percent of the population lived below poverty standards.

 B. Description of Mark Twain

 Mark Twain is situated at the northern edge of the middle sector of Coney Island where the Coney Island Creek enters Gravesend Bay, an arm of New York's lower harbor. It is a well constructed three-story brick building approximately forty years old, thoroughly rebuilt and refurbished a few years ago. Among its facilities are a large modern auditorium, separate large gymnasiums for girls and boys, a large lunchroom with a modern kitchen, well equipped science laboratories, a well stocked library, and home-making and other specialized rooms. New typewriters and calculating equipment, machines for remedial reading, and other paraphernalia of modern teaching are available in satisfactory quantities. The printing and other shops seem well equipped for the use of children of this age group.

 In addition to the usual outside recreation areas of a junior high school of this vintage, the building is adjacent to a sizeable city park. As a result there are tennis and handball courts, grass ball fields and track facilities available to the children during and after school hours for intra- and inter-mural sports.

 On the day the court visited the school, in December of 1973, all the facilities appeared to be well used; the teaching and other staff seemed genuinely concerned with helping their young charges; and the children seemed well disciplined, alert, and interested in their school work. Imaginative use of the surrounding area was being made; for example, the science class was examining specimens gathered at the nearby seashore and use of the park facilities was scheduled.

 The visit confirmed the impression left by the evidence received in court that some classes were segregated due to tracking, and that there were far fewer children than the facility and staff could handle. Lack of students is a reflection of the fact that Mark Twain has both the lowest utilization rate in the District and the highest absentee rate. The general emphasis on academic exercises requiring reading skills also seemed less than would be expected in a school attended by middle-class pupils in the five other Junior High and Intermediate Schools in District 21 -- J.H.S. 43, 228, and 281; I.S. 96 and 303.

 AVERAGE DAILY PERCENTAGE OF ATTENDANCE DISTRICT 21 SEPTEMBER 1972 -- JUNE 1973 (City Wide 83.41) J.H.S. 43 86.05 I.S. 96 89.37 J.H.S. 228 86.04 J.H.S. 239 72.26 J.H.S. 281 85.15 I.S. 303 86.15

 Reading scores for Mark Twain remain low as indicated by the following chart (based on New York Times, p. 51, col. 1, September 26, 1973; p. 1, col. 1, March 18, 1973): READING SCORES DISTRICT 21 Percentage of Grade 8 Students Reading Ranking of Median Grade At or Above City Junior Score Grade Level High Schools 1971 1972 1972 1973 1973 J.H.S. 43 9.3 8.7 48.3 53.4 23 I.S. 96 8.0 8.2 36.6 38.2 56 J.H.S. 99 9.3 9.3* 50.5* J.H.S. 228 8.4 8.0 39.7 41.6 46 J.H.S. 238 8.4 8.4* 53.7* J.H.S. 239 5.8 5.7 13.8 13.9 108 J.H.S. 281 8.2 7.8 42.7 42.4 43 I.S. 303 9.8 9.0 45.9 47.2 38

 The principal of Mark Twain attributed part of the low reading scores to the high absentee rate. Those children who do attend regularly show, according to his testimony, dramatic increases in reading skills as a result of the remedial reading programs. The intense efforts to improve average reading levels as compared to the paucity of results is frustrating. As the principal explained, many of the students have known nothing but failure and it is difficult to motivate them to come to school and to try to learn. Getting through to the parents seems almost as difficult. During the trial, a P.T.A. meeting and film at the school attracted thirty parents of whom three were minority.

 C. Racial Imbalance at Mark Twain

 Over the past ten years, the racial balance of the Mark Twain student body has changed drastically. In 1962 white students comprised about 81% of the total enrollment. (The category "white students" may include a very few Orientals and American Indians.) In each of the last ten years, the percentage of white students has declined. By 1973 white students comprised only about 18% of the total enrollment.

 In 1962, black students comprised about 7.4%, and Hispanic (mostly Puerto Rican) students about 11.6%, of the total enrollment. In each of the last ten years, the percentage of nonwhite students at Mark Twain has increased. By 1973 blacks comprised about 43.3%, and Hispanos 38.6%, of the total enrollment.

 This drastic change in the racial balance at Mark Twain has been due more to the "attrition" of white students than to any influx of minority students. In 1962 whites numbered 1566 out of a total 1933 students; by 1973 they number only 129 out of 713. By contrast, in 1962 blacks numbered 143, and Hispanos 224, out of a total 1933 students; and by 1973 blacks still numbered only 309, and Hispanos 275, out of 713.

 Significantly, the percentage of black students at Mark Twain increased even during the two years (1969-70 and 1971-72) when there was a slight decrease in the actual number of black students. Similarly, the percentage of Hispanic students increased during the 1968-72 period when the actual number of Hispanics at Mark Twain declined.


 The racial imbalance at Mark Twain stands in marked contrast to, and compares very unfavorably with, the racial composition at the other Junior High and Intermediate Schools in District 21.

 [Extensive statistical charts on schools in District 21 are omitted in published opinion.]

 In October, 1972, the total intermediate and junior high school population of District 21 numbered 8752. Of these, 919 were "open-enrollment" students -- students who do not reside in District 21 but who nonetheless attend school there in order to find a school which is more racially balanced than the one in their home district; they came from the heavily black and Puerto Rican areas of Bedford-Stuyvesant and are presumably nonwhite. Thus, in October, 1972, there were 7833 resident students attending intermediate and junior high schools in District 21.

 Assuming that the 919 "open-enrollment" students were nonwhite, 1337 of the 7833 resident students were nonwhite. About 17% of the total resident enrollment at the intermediate and junior high school in District 21 was nonwhite, while 76% of the enrollment at Mark Twain was nonwhite. Put another way, 41% of the resident nonwhite students enrolled at District 21 intermediate and junior high schools attended Mark Twain.

 In the fall of 1973, about 30.4% of all the students - resident and nonresident - attending schools in District 21 -- elementary, intermediate, junior and high -- were nonwhite. 17.43% were black; 11.54% were Puerto Rican; and 1.41% were other Spanish-surnamed. Yet -- it bears repeating -- at that same point, 81.9% of the student enrollment at Mark Twain was nonwhite.

 D. Underutilization of Mark Twain

 To put the racial imbalance at Mark Twain in perspective, we must examine the extent to which the school is underutilized. Determining the optimum use for a school involves more than a raw statistical comparison of the school's maximum pupil seating capacity as against its actual student register. Special programs, the physical nature of the school plant, and the unique needs of each individual school and its students must be taken into account. Undoubtedly, the optimum is somewhat below 100% of designed capacity and some underutilization is generally preferable to overutilization. For ease of comparison, the percentages used are based on design capacity.

 In 1962, the utilization rate at Mark Twain was 88%. By 1964, it had increased to 98%. In 1965, however, the rate began declining and continued to do so steadily until 1972, save for 1967 when it climbed 1%. By 1972 the utilization rate at Mark Twain had declined to 41%. In the fall of 1973 it remained 41%. Since the actual number of nonwhite students at Mark Twain increased, albeit not greatly, during the 1962-1972 period, this sharp drop in the utilization rate at Mark Twain is obviously due to the "attrition" of white students during the past ten years. Significantly, the other junior high and intermediate schools in District 21 have not shown a similar decline in utilization over the last several years. As the chart below indicates, three of the other five schools in this category were being overutilized in the school year 1973-74; and during that same year the utilization rate at Mark Twain was 39% lower than the next lowest utilization rate, that of I.S. 303 and J.H.S. 43. Utilization Rate School 1973-74 J.H.S. 239 41% J.H.S. 228 100% J.H.S. 43 80% J.H.S. 281 108% I.S. 96 106% I.S. 303 80%

 The utilization rate at Mark Twain was almost 50% below the District average. Even with small classes and many special project rooms, the principal of the school admitted that the school could easily accommodate three hundred more students.

 E. Segregation Within Mark Twain

 Within Mark Twain there is a considerable amount of segregation based upon the equivalent of tracking. There are presently seven classifications of students. First, special students with high reading scores who accomplish the three year course of study in two years; second, special students with high reading scores who are not in a rapid advance program; third, students who elect to study a foreign language -- these are generally college bound; fourth, students with Puerto Rican backgrounds having trouble with English but who have good potential in reading; fifth, the bulk of students who range from about average in reading ability to considerably below average; sixth, pupils with seriously retarded reading scores; and seventh, children who are so disinterested in academic matters -- older boys, generally with substantial emotional or physical problems interfering with learning who do not attend school regularly -- they require some sort of work study program.

 Inspection of the pictures of the graduating class, as well as the testimony, reveals that despite the high ratio of minority to white students in the school as a whole, the first two categories have been almost entirely white. The fifth, sixth and seventh tracks have been almost entirely nonwhite.

 Programs to mix poor and good readers to provide a better racial balance have not worked well at Mark Twain and will not work, according to a member of the District 21 Board, unless the school population is "larger and the school [draws] from a cross-section of all the economic and ethnic groups as the rest of the district does."

 The most recent figures, for the incoming class, show some improvement in internal desegregation.

 [Chart showing ethnic distribution by classes in 1973 is omitted from published opinion.]

 F. Community Perceptions of Mark Twain

 The community and school officials view Mark Twain as a segregated school. So, too, did Professor Nathan Glazer, an expert presented by the School Board and Professor Dan W. Dodson, plaintiffs' expert.

 Doctor Irving Anker, now Chancellor, testified, "it was racially imbalanced." The principal noted the strong antipathy parents have to sending their children to Mark Twain despite its fine facilities, faculty and program; even the children in the school have a negative image of themselves. He testified:

A. The school is situated in a slum area, for one thing.
The children who do not live in the area have to come by bus. They would have to walk one or two blocks through a high-crime, low-socioeconomic area. The children have learned from their parents or gotten from their parents certain attitudes about going to a school of this type, where there are a preponderance of minoritygroup children, and honestly, that's the only thing I can say about it. (Emphasis added).
* * *
Q. Now, at your school you do perceive it as an overwhelmingly minority school, very heavily minority school; is that correct?
A. Yes.
Q. And that is perceived throughout the district by your colleagues?
A. I would think so, yes.
Q. Would it be fair to say that the children at your school, or a number of the children at your school, have a negative image of themselves?
A. I would say so, yes, some of them.
Q. And you as the principal understand and recognize that, and the rest of your faculty recognize that?
A. Right.
Q. And perhaps even a great many of the administrators in the rest of the district know that children at your school have a negative -- certain numbers of children at your school have a negative image of themselves; is that correct?
A. It would be my opinion, yes.
. . . .

 The principal also admitted that the reputation of the school -- though undeserved -- was bad, stating:

A. It seems to me that a school gets its reputation from several sources: One is the published report on the reading scores of the school, and I'm sure that these people, when they came to me, they had already examined the figures and they saw that the school had the lowest reading score average on the standardized test than any other school in the district, and they were not happy with that.
They had also heard, they told me, that things were difficult for the children in the school, that there were fights and that there were extortions and there were disruptive children in the school. And I said, 'well, I'm very glad to have you come and look for yourself and see for yourself rather than listen to the rumors.'
* * *
Q. You indicated that the assemblyman came to your school.
. . . .
* * *
A. He called me on the phone and told me he had attended a meeting of the Sea Park East, the housing development on Surf Avenue, that's in our area, and he told me that some of the parents at the meeting told him that they were afraid to send their children to Mark Twain, that they didn't want to send them, they were looking for ways to send them to other schools.

 Doctor Nathan Glazer summed up the matter when he testified that segregation "is the perception and the reality there" at Mark Twain.

 G. Action of School Officials Contributing to Present Situation

 To a substantial degree the present condition at Mark Twain is attributable to decisions of school officials. The racial composition and utilization of a school is determined in large part by its feeder pattern -- that is, in the case of a Junior High School such as Mark Twain, by which graduating elementary students are zoned into that school.

 Public School 212 and Public School 216 are both elementary schools with predominantly white student bodies. During the 1973-74 school year, blacks and Hispanos together comprised 39.2% of the total student enrollment at P.S. 212, and 9.6% of the total student enrollment at P.S. 216. At one time students at both P.S. 212 and P.S. 216 fed into Mark Twain -- that is, they "graduated" from P.S. 212 and P.S. 216 and under school board rules and regulations, went on to that Junior High School.

 Up until September, 1965, about 50% of the graduating class at Elementary School 216 fed into Mark Twain. The other 50% fed into J.H.S. 228. By September, 1966, pursuant to a change in school zoning patterns, all of the graduating class at P.S. 216 began feeding into J.H.S. 228.

 Apparently, then, in September, 1966, every graduate of P.S. 216 entered grade 7 at J.H.S. 228. By September, 1968, the change was complete. Because the P.S. 216 students who had been graduating into Mark Twain were predominantly white, this change in feeder pattern had the natural and foreseeable effect of decreasing the white student enrollment at Mark Twain.

 In September, 1966, J.H.S. 281, newly constructed, opened its doors. At that time, pursuant to a change in school zoning patterns, P.S. 212 students, who up until then had been feeding into Mark Twain, began attending J.H.S. 281. Because the P.S. 212 students were predominantly white, the construction of J.H.S. 281 in conjunction with the change of feeder pattern effectuated with regard to these two schools had the natural and foreseeable effect of decreasing the white student enrollment at Mark Twain.

 In September, 1965, P.S. 303, newly constructed, opened its doors as an elementary facility. The Board of Education's Central Board had planned for P.S. 303 to be converted into an intermediate facility. Actual conversion began in September, 1968, when grades K through 4 were eliminated, leaving only grades 5 and 6. This phase of the conversion did not affect Mark Twain, however, since Mark Twain only has grades 7 through 9. In September, 1969, P.S. 303 added grade 7, and in September, 1970, it added grade 8. In September, 1971, P.S. 303 eliminated grade 5, completing the conversion to Intermediate School 303.

 In adding grades 7 and 8 to P.S. 303, the local School Board withdrew children from the almost entirely white occupied Warbasse Houses and Luna Park House from Mark Twain. Ms. Delores Chitraro, until 1972 Superintendent of District 21, described this development at the trial:

We withdrew Warbasse House children, the junior high school children, from Mark Twain; we did it on a gradual basis and we withdrew Luna Park. We withdrew those youngsters because we had received figures from school planning and also from the Housing Authority that the new housing coming up in Coney Island would give to us an additional population, that is, children in addition to those already living in Coney Island, which would include a certain number of white children.
* * *
I am referring to O'Dwyer Gardens and West 32nd Street Housing [new public housing to the east of Sea Gate]. The population that was expected did not materialize; hence, the withdrawal of the youngsters who lived in Warbasse and Luna Park that we withdrew for 303 were not compensated for in Mark Twain by an additional white population nor even by an additional minority group population, because the movement within those houses was from within the community itself and not from outside the community.

  Ms. Chitraro and Mr. Peter Gianesini, a former member and chairman of the local community school advisory board, objected to the conversion of P.S. 303 as not responsive to the need of the community. They foresaw the adverse racial impact on Mark Twain. Local school officials had serious doubts about the accuracy of the projections upon which the Central Board relied in part in concluding that new housing would fill the void in Mark Twain caused by the removal of students as a consequence of the conversion of P.S. 303.

  P.S. 303 was located in a predominantly white, middle class neighborhood and, consequently, the conversion of P.S. 303 from an elementary to an intermediate facility had the natural and foreseeable effect -- insofar as it directed students away from Mark Twain -- of decreasing the white student enrollment at Mark Twain. In the words of one witness:

[In converting P.S. 303 into an intermediate school,] you practically guaranteed you were going to draw some white children from the area and this [303] was going to become a school that would further weaken the white strength that was in 239 [Mark Twain].

  Presently, then, only elementary schools P.S. 188 and P.S. 288 feed into Mark Twain. During the 1973-74 school year, blacks comprised 48.3% and Hispanos 30.9% of the total student enrollment at P.S. 188. During this same year, blacks comprised 50.4%, and Hispanos 41.5%, of the total student enrollment at P.S. 288.

  The various actions of the Community Board, and the predecessor local School Board described above -- the rezoning effectuated with regard to Elementary School 216; the construction of J.H.S. 228 and the attendant rezoning of students graduating from Elementary School 212; and the phased conversion of P.S. 303 -- individually and together, had the foreseeable, inevitable effect of decreasing the white student enrollment at Mark Twain. It helped bring about the severe racial imbalance which we have already described.

  The natural and foreseeable impact of the City school officials' and Community School Board's actions helping create severe racial imbalance has been magnified and exacerbated by the failure of the Community Board to act to remedy the situation. It is to this failure that we now turn.

  H. Inaction of School Officials Contributing to Present Situation

  In September, 1970, the New York City Board of Education was decentralized in an effort to give each individual community more control of its schools. The "local" school board of District 21 became the Community School Board. As soon as the change was effected, Ms. Chitraro brought to the attention of the new Community Board the problem of severe racial imbalance at Mark Twain. The Board directed Ms. Chitraro to examine the situation further and to supply it with information relevant to the possibility of rezoning.

  1. Rejection of Rezoning Plans

  Ms. Chitraro, the office of school zoning of the New York City Board of Education, and the Community School Board did develop a plan to rezone Elementary School 216 so that it would again feed into Mark Twain. The Community Board then met with the representatives of the Parent Associations of all the schools in District 21 and with other members of the community to discuss the possibility of implementing this plan.

  On March 25, 1971, the Community Board issued a notice of public hearing with regard to the proposal to rezone P. S. 216. The public hearing was held on March 31, 1971. Ms. Chitraro tells us what happened:

There were representatives, people, present from all the various schools in the District. . . . There were people who spoke against the idea, and there were people who spoke for the idea.
Those parents of the Coney Island area . . . were in favor of having an integrated school situation in Mark Twain, and were in favor of better utilization for Mark Twain because of the diminishing of services. . . . In the Luna Park houses, I found a great deal of ambivalence with certain people being in favor of an integrated situation and others not being in favor. In the 212 and 216 areas and the 281 area, to the best of my knowledge, there was an overwhelming opposition to forming a better integrated school at Mark Twain . . . because of the feeling of the parents that, one, the education facility at Mark Twain was not as good as either 228 or 281 and, two, their greater fear for safety of the children going to and from Mark Twain and, to some degree, inside the premises of Mark Twain.

  On April 7, 1971, the Community Board advised the community that it had decided to make no changes in the status quo. On April 19, 1971, the Parents Association of Mark Twain appealed from the decision of the Community School Board to defendant Harvey Scribner, Chancellor of the Board of Education of the City of New York. When Chancellor Scribner failed to act, the Parent Association of Mark Twain filed a petition with the Commissioner of Education of the State of New York, Dr. Edward Nyquist.

  Subsequent to the filing of the petition with Commissioner Nyquist, Chancellor Scribner, in a letter dated September 7, 1971, and addressed to the President of Community School Board of District 21, directed the Board to formulate and approve, by no later than December 31, 1971, a plan "to eliminate racial imbalance and improve building utilization" at Mark Twain. On December 15, 1971, the President advised Chancellor Scribner that the plan he requested would be submitted to him in January, 1972.

  2. Failure of Free Choice Plan

  In January, 1972, at a public meeting, the Community Board -- in response to the Chancellor's September 7th directive -- adopted a plan. It was entitled:

A plan to augment the junior high school program in order to encourage free choice transfers to Mark Twain Junior High School.

  As the title indicates, it was designed to make Mark Twain educationally more attractive in the hope that white parents would voluntarily send their children there. Essentially the program called for spending more money to improve the quality of Mark Twain's educational program.

  Pursuant to the plan, both federal and state monies were diverted from the elementary schools in District 21 to Mark Twain, making possible the development of various special programs. This money, since it was intended to be used for deprived children, undoubtedly was diverted from schools feeding into Mark Twain, probably causing a further deterioration of this junior high school's entering class.

  Special group field trips, for example, were taken to Albany and Philadelphia. More significantly, Mark Twain developed a program permitting students to take 8 of their 35 periods in elective areas of special personal interest, such as the performing arts. And an extended school day was instituted, allowing students, under teacher guidance, to participate in special programs, utilizing classroom and other school facilities, after the completion of the normal school day.

  At the January meeting at which the Board adopted its plan, Allen Zelon, a member of the Community Board, proposed an amendment because, as Mr. Zelon put it at trial, "the plan that was going to be voted upon by the Board did not change the utilization or the racial composition" of Mark Twain. Under Mr. Zelon's amendment, the two elementary schools which formerly had fed into Mark Twain, P.S. 212 and P.S. 216, would again have become feeder schools for Mark Twain, thereby increasing white student enrollment and utilization. Mr. Zelon would have bussed children from points in front of P.S. 212 and P.S. 216 to Mark Twain. In addition, the amendment provided for enough empty seats so that, should the units projected by the Housing Authority materialize, children from that housing could be accommodated.

  The Zelon amendment was voted down by the Community School Board 7 to 2. The reasons for opposition to forced desegregation were much the same as those given at the March, 1971 public meeting.

  Commenting on the Community Board's free-choice plan at trial, plaintiffs' expert witness, Professor Dodson, testified that

[of] all the plans that are used, this is the weakest and poorest.
It puts all the responsibility on the parents for the decision as to whether their child will go search for an adequate education, rather than a responsibility on the educational authorities to require them, as a matter of policy, that they arrange for children to attend, conducive to growth and development.

  Professor Dodson concluded that "white parents generally won't [voluntarily] send their children to a minority school."

  At the trial, there was uncontradicted testimony by Mr. Zelon that there was no publicity campaign or other attempt by the Community Board to notify white parents within District 21 of the educational improvement planned for Mark Twain, and no active effort to encourage white parents to send their children there. By this time it was well known in the educational community that freechoice transfer, unaccompanied by publicity or active encouragement, is not calculated to accomplish desegregation. United States Commission on Civil Rights, Racial Isolation in the Public Schools 66-70, 147-148 (1967). See Green v. County School Bd. of New Kent Co., Va., 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968).

  In any event, as the enrollment statistics for Mark Twain for the 1972-73 and 1973-74 school years make clear, the Board's program has been singularly ineffective in attracting white students to Mark Twain. The principal of Mark Twain testified that "not one" white student has enrolled at Mark Twain pursuant to the Board's free-choice plan in spite of the fact that, in the principal's opinion, the educational program at Mark Twain is currently as fine as any in the City of New York.

  The evidence at trial strongly indicated that the physical facilities at Mark Twain and the educational programs -- including remedial programs in reading and mathematics, placement of studentteachers from Brooklyn College, and the use of organized volunteer adult tutors -- are superior to the facilities and programs of public schools in New York City generally. The principal explained this apparent anomoly by saying, as suggested above, that white parents fear to send their children into the "slum" "high-crime" neighborhood in which Mark Twain is located.

  Despite parents' fears, public bus lines are so conveniently situated that the walk to the school can readily be policed. There is presently some deteriorated housing between the bus stops and the school but it should be marked for early clearance. Incidents within the school are now practically non-existent and the court observed that the corridors are strictly and fully policed by teaching, supervisory and auxiliary personnel.

  3. Refusal to Follow Orders of Chancellor to Desegregate

  Chancellor Scribner himself had rejected a free transfer plan. In a letter dated April 7, 1972, the Chancellor advised the Community Board President that:

Your plans for improving racial imbalance through the voluntary transfer of white pupils into areas of minority group concentration are hardly likely to succeed. In the areas in which they have been tried, either as "freedom-of-choice" plans or as "reverse open enrollment," both in this city and across the country, they have been notably unsuccessful. Well motivated as they might be, they have not in the past succeeded in attracting any significant number of pupils and there is no reason to suppose that this plan will be more successful. As a response to the problem of racial imbalance, this proposal is inadequate.

  Continuing, the Chancellor stated:

1. A situation of racial and ethnic imbalance exists at Mark Twain Junior High School # 239.
2. In the absence of planned remedial action, this situation is likely to become worse.
3. Mark Twain Junior High School # 239 is presently under-utilized.
4. In the absence of firm remedial action, this under-utilization is not likely to be corrected to any great extent.
5. The proposed plan of Community School Board # 21, presented to me on January 13, 1972, leaves me to believe it will not correct the condition of racial and ethnic imbalance or of under-utilization of plant.

  Finally, Chancellor Scribner ordered the Community School Board to take

such action as may be necessary including the adoption of a plan no later than May 17, 1972, to insure that Mark Twain Junior High School 239 will have an enrollment of such a nature that (a) By September 1, 1972, the percentage of minority group students will not vary from the District-wide average for intermediate and junior high schools by more than approximately 30% and the building utilization similarly will not vary by more than approximately 35% (b) By September 1, 1973, the percentage noted above will drop approximately 20% and 25% respectively (c) By September 1, 1974, the percentages noted above will drop to approximately 10% for both. It is so ordered.

  The clear purpose of the Chancellor's directive was to require the Community Board, through rezoning, to make Mark Twain a school reflective of the District-wide averages both in terms of racial balance and degree of utilization, save for the 10% deviation factor.

  On June 30, 1972, Chancellor Scribner met with the Community School Board, and the Board advised the Chancellor that it would not modify its January 5th plan at that time, the Chancellor's April 7th directive and order to the contrary notwithstanding. In a letter dated July 5, 1972, Chancellor Scribner modified his April 7th directive. Specifically, the Chancellor requested that

1. As was under consideration by your Board, a sixth grade is to be added to Mark Twain for September, 1972.
2. You are to terminate all options and/or any remaining enclave so that all students who would normally attend schools that would feed into Mark Twain will observe that feeder pattern. Therefore, all students who have been scheduled to attend another middle school in the district as a result of such options, will attend Mark Twain in September, 1972.
3. You are to move forward with your plans for special financing to improve the programming at the school and to introduce innovative ideas and techniques.

  On August 10, 1973, the Chancellor advised the Community School Board that this court had ruled:

The fact that this case is now pending does not prevent the Chancellor or the local School Board from taking appropriate action to protect the rights of all the children of this District during the pendency of this case.

  He added:

In light of the above, you are hereby again directed to implement by the earliest possible date the steps set forth in the [Chancellor's] letter of July 5. . . .

  As indicated below, another such letter was sent on December 5, 1973. The Community School Board has, however, failed to act.

  4. Fear of Chancellor and Other Central School Officials that Whites Would Leave a Desegregated System

  At trial, Counsel to the Chancellor of the New York City Board of Education said that the Chancellor modified his April 7th directive primarily because he realized that forced integration of Mark Twain would cause white families with school-age children to move out of the integrated school zone and, if necessary, out of the District. Specifically, counsel declared:

[Upon] a second look, after that first April 7th letter, . . . the Chancellor realized that the type of thing that was contemplated [by the April 7th letter] and that we understand to be contemplated by plaintiffs, and that is a massive infusion [of white students] . . . from a contiguous neighborhood into that school will not work; that it will be self defeating in that those white students, over a very short period of time, will evaporate so that we will not have [an integrated school].

  The fear of transfers out of the public schools is well founded. As the Report of the United States Commission on Civil Rights, Racial Isolation in the Public Schools 38-39 (1967) (footnotes omitted) points out:

Private and parochial school enrollment also is an important factor in the increasing concentration of Negroes in city school systems. Nonpublic school enrollment constitutes a major segment of the Nation's elementary and secondary school population. Nationally, about one-sixth of the total 1960 school enrollment (Grades 1 to 12) was in private schools. In metropolitan areas the proportion is slightly higher, and divided unevenly between city and suburb. Nearly one-third more elementary school students in the cities attend nonpublic schools than in the suburbs. Almost all of them are white. In the larger metropolitan areas the trend is even more pronounced. As Table 8 shows, a much higher proportion of white city students than white suburban students attend private and parochial elementary schools. Nonwhites in these metropolitan areas, whether in cities or suburbs, attend public schools almost exclusively.

   TABLE 8. -- Proportion of total elementary students, by race, in public and nonpublic school, for 15 large metropolitan areas, 1960 Central cities Suburbs White Nonwhite White Nonwhite Publi c 61 94 75 97 Nonpublic 39 6 24 3

  Source: Yaucher, Tables on School Enrollment in Selected Metropolitan Areas, prepared for the Commission.

Thus nonpublic schools absorb a disproportionately large segment of white school-age population in central cities, particularly in the larger ones. This poses serious problems for city school systems.

  Other testimony, including that of the present Chancellor, Mr. Anker, confirms the conclusion that opposition by white parents with children attending other Intermediate and Junior High Schools in the District -- as well as fear that these parents would refuse to send their children to Mark Twain -- explains the failure to desegregate.

  In a letter dated August 8, 1972, the Community Board advised the Chancellor that it had no intention of implementing suggestions one and two of the Chancellor's July 5th letter. The Chancellor did nothing thereafter to enforce either his April 7th directive or his July 5th letter or subsequent directives. The Community Board did not implement either the April 7th directive or the July 5th letter.

  Finally, at the eleventh hour, on December 5, 1973, the Chancellor again reiterated in a letter to Community School Board 21 his belief "that the present status [of Mark Twain] is not acceptable and that [the] Board must take appropriate steps to change the situation." He directed that the "Board present a plan within three weeks" on the threat that if it did not do so he would "have no alternative but to direct the adoption of a particular plan." Still, nothing was done.

  Faced with the serious, urgent problem that Mark Twain is a severely racially imbalanced and underutilized school, the Community Board and the Chancellor failed to act. Their inaction had the natural and foreseeable effect of maintaining and perpetuating severe racial imbalance at Mark Twain Junior High School.

  This failure does not suggest that there was any intent or desire that Mark Twain be segregated. All school officials were distressed by the situation. They took some steps to reduce the number of children who would be segregated, for example, by zoning the area immediately adjacent to Mark Twain into I.S. 303. These children were minority children. A considerable amount of courage and persistence was required to take this action since the evidence shows strong opposition from the parents of some of the white children in I.S. 303 who objected to a minority school population much higher than that in the neighborhood of the school. The Community Board also welcomes the hundreds of minority pupils bussed from Bedford-Stuyvesant into the District's Junior High Schools. The school officials cannot be charged with racial prejudice in their official positions or with segregative design or intent.

  I. Public Housing in Central Coney Island

  The city, state and federal governments, individually and together, have sponsored, maintained, and managed -- and presumably will continue to do so -- many publicly-assisted housing projects and multi-family developments in District 21. These projects cover most of the area of Central Coney Island and are within the feeder area of Mark Twain.

  The white-occupied 8157 units of middle income non-federally funded housing projects were built in the eastern portion of Coney Island -- Luna Park in 1961; Trump in 1964; and Warbasee in 1965. While some city assistance was undoubtedly given to these projects in such matters as street relocations, and while these projects are subject to suit should they discriminate in renting, they are treated as private projects for the purposes of this action.

  Between 1954 and 1971, the New York City Housing Authority completed 5141 units of public housing in Community School District 21. As of October, 1973, 3220 housing units had been completed in Coney Island with public funds. An additional 4000 units are planned or being built.

  The ethnic composition of the early projects constructed in Coney Island by the Housing Authority reflected the community as it was prior to the change in racial composition in the late '50s and early '60s. Gravesend Houses, a federally-aided project completed in June, 1954, located at Bayview and Neptune Avenues, and West 33rd Street, comprising 634 units of housing, 199 of them for the elderly, was 81.5% white by apartment at initial occupancy. Coney Island Houses, a city moderate income development, completed in February, 1957, bounded by Surf Avenue, West 32nd Street, the Boardwalk and West 29th Street, comprising 534 units of housing, 136 of them for the elderly, was 91.9% white by apartment at initial occupancy. As of June, 1972, the white population by apartment of those projects had dropped, respectively, from 81.5% to 50.8% and from 91.9% to 71.3%. (Statistics based upon apartments tend to substantially underrepresent percentages of nonwhites, since the nonwhite families in public housing tend to be much larger than the white, elderly, families.)

  Marlboro Houses, located north of Coney Island, at Stillwell Avenue, Avenue V, 86th Street and Avenue X, completed in January, 1958, was a state-aided project containing 1755 units of public housing, of which 439 were for the elderly. At initial occupancy it was 93.2% white, by apartment. By June, 1972, it was 70.3% white.

  Bernard Haber Houses, an all-elderly project of 380 units, built with state aid, with boundaries of West 25th Street, West 24th Street, Surf Avenue and the Boardwalk, completed in June, 1965, had an initial occupancy of 92.6% white, by apartment. It remained essentially a white project, being 93.2% white by apartment in June, 1972.

  It is readily apparent that there had been a loss of white population from these early Authority projects from initial occupancy to the present, except for Haber Houses for the elderly. This loss has ranged from 20% to 30% of the initial white population by apartment. The fact that Coney Island was turning into a slum was undoubtedly a contributing factor to this loss of white population.

  During the 1960s, in addition to Haber Houses with its 380 elderly units, largely white, the Authority planned and constructed three public housing projects totaling 1847 units, West 32nd Street Mermaid Houses, William O'Dwyer Gardens, and Gerald J. Carey Gardens. 687 units, or 37% of the total, were designed for the elderly. Carey and Mermaid Houses were federally subsidized projects with an average monthly rent per room of $17.98 and $18.58 respectively. O'Dwyer was a city moderate income project, charging $28.36 per rental room. 45% of the apartments at O'Dwyer were for the elderly. The factors of higher rent and proportion of units for the elderly account for the fact that O'Dwyer had retained a relatively high proportion of white occupancy by apartment. It was 74.0% white by apartment in May, 1970 at initial occupancy and remained 70.7% white in June of 1972.

  O'Dwyer and Mermaid Houses are located adjacent to one another between West 31st Street and West 35th Street and between Surf and Neptune Avenues. Carey Gardens is located to the east, between West 22nd and West 24th Streets, across Neptune Avenue from J.H.S. 239. The proportions of units for the elderly at Mermaid and Carey are somewhat less than at O'Dwyer, being 39% at Mermaid and 29% at Carey. Mermaid was 48.0% white, by apartment, at initial occupancy in March, 1970, and was 43.4% white as of June, 1972. Carey Gardens was 27.5% white at initial occupancy, and 24.6% white as of June, 1972.

  In 1968, a fifty square block area of Central Coney Island was selected by the city and federal governments as a "target" for government-assisted residential development under urban renewal and related programs, the latter termed Neighborhood Development Program (NDP). The NDP area, located between West 19th Street to Sea Gate and between Surf and Neptune Avenues, will be completely reconstructed.

  By February, 1973, the City Housing Authority, as part of the NDP program, was constructing 686 family, and 108 elderly, low-income housing units. Plans for further development of low-income housing by the Authority in the NDP area were dropped in favor of moderate-income developments by the New York State Urban Development Corporation. Some 4000 units of moderate-income housing will be built by the state.

  The Housing Authority selected tenants for Mermaid, O'Dwyer and Carey pursuant to its regulation, GM 1810. This regulation requires the Authority to give first priority to site and former site residents; second priority to people relocated from Coney Island West Urban Renewal Area and Neighborhood Development Program sites; and third priority to persons in emergency need of housing in Postal Zone 24 -- greater Coney Island. Cf. Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973). Apparently the Authority adopted this regulation, after consulting with other government agencies and community groups, in acknowledgment of the community attachment which is frequently felt by persons relocated ...

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