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July 26, 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, by its President and Defendants. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #21, By its President and Member, 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.

 Pursuant to this court's direction, the Special Master has filed two reports. The first, dated July 1, 1974 (73 pages), deals with "The School Plan." The second, dated July 8, 1974 (109 pages, plus photographs), covers "Physical and Human Renewal" of Mark Twain's environs. Both reports are comprehensive, sensitive, and practical responses to the challenge posed by this litigation to create a viable, constitutionally acceptable educational system in Coney Island. The court expresses its gratitude to Curtis J. Berger, the Special Master. His reports reflect a grasp of relevant legal, educational, economic and sociological problems and result from patient consultations with people at every level of government and in all walks of life in School District 21.

 Extensive hearings have been held on the Special Master's Reports. All parties were permitted to call any witnesses, submit written responses and examine the Special Master under oath. With the consent of the parties, the court again viewed Coney Island and its environs. In addition, the court received communications from various groups and persons affected.


 As institutions with limited powers, courts are mandated by law and tradition to interfere as little as possible in the work of other branches of government. So long as the Constitution and laws are not violated, state school officials must be afforded the broadest latitude to meet their educational responsibilities.

 A majority of the Supreme Court reaffirmed its mandate of deference to local school board judgment when it wrote:

[Local] control over the educational process affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs and encourages "experimentation, innovation and a healthy competition for educational excellence."

 Bradley v. Milliken, 418 U.S. 717, 94 S. Ct. 3112, 3126, 41 L. Ed. 2d 1069 (1974).

 With the proviso that any program employed must promise "realistically to work," Green v. County School Board, 391 U.S. 430, 439, 88 S. Ct. 1689, 1694, 20 L. Ed. 2d 716 (1968), local authorities retain wide discretion to choose among acceptable programs of desegregation. In "this field the way must always be left open for experimentation." United States v. Montgomery Co. Board of Education, 395 U.S. 225, 235, 89 S. Ct. 1670, 1675, 23 L. Ed. 2d 263 (1969); see also, e.g., United States v. Jefferson Co. Board of Education, 380 F.2d 385, 390 (5th Cir.), cert. denied, 389 U.S. 840, 88 S. Ct. 77, 19 L. Ed. 2d 104 (1967); Moss v. Stamford Board of Education, 350 F. Supp. 879, 880 (D.Conn.1972); United States v. Midland Independent School District, 334 F. Supp. 147, 148 (W.D. Tex.1971); Yarbrough v. Hulbert-West Memphis School District No. 4 of West Memphis, Ark., 329 F. Supp. 1059, 1064 (E.D.Ark.1971); Bradley v. School Board of City of Richmond, Va., 325 F. Supp. 828, 832-833 (E.D.Va.1971); Brice v. Landis, 314 F. Supp. 974, 977 (N.D.Cal.1969).

 The three plans before the court considered by the parties are: (1) the defendant School Board's for a magnet school; (2) the Special Master's for another form of magnet school; and (3) Model II of Professor Dan W. Dodson, a distinguished educator and consultant to the plaintiffs.

 While the original complaint sought only desegregation of Mark Twain Junior High School, each of these three plans provides for desegregation of all of the middle schools of District 21, including Mark Twain, by providing for a 70-30 ratio of white to minority children in each school. Each plan thus meets a fundamental precept of Professor Kenneth Clark, a widely respected expert in this and related fields, that desegregation not be "piecemeal." The issue of segregation of lower schools and high schools in District 21 and of schools in other districts is not before the court in the present litigation.


 The School Board's plan, as supplemented by a proposed pupil assignment plan, would provide a ratio of approximately 70 (white)-30 (minority) in all middle schools in the district through busing and rezoning. At least during the first few years of the operation of its plan, two schools (196 and J281) would be utilized at approximately 110% of capacity and the utilization of other schools would range down to about 75% (P238). During the first year, Mark Twain would be grossly underutilized at about 25% of its rated capacity and at about 33% of its special school capacity as computed by the Special Master. By the end of the third year Mark Twain would be operating at approximately 65% of rated capacity and 100% of the effective capacity as determined by the Special Master. Over-crowding in some of the other middle schools would be reduced by 1977 as students from them went to Mark Twain.

 The resolution of the School Board outlines the changes as follows:

I. To redraw the feeding patterns of the middle schools so that the incoming grade of each intermediate, junior high school, and 7th and 8th grade of K-8 schools will reflect approximately 70% Caucasian, 30% "Minority" population that is the approximate ratio of the district's middle schools. A small variation may be necessary in the implementation.
II. A) Graduate the 8th and 9th grade of Mark Twain to High School.
B) Transfer the present 7th grade of Mark Twain and zone the graduating pupils of P.S. 188 and P.S. 238 to other middle schools in the district (with all of the existing services and programs they would have had in Mark Twain).
III. Establish at Mark Twain a District School for Gifted and Talented Children. . .
A) Entrance by application and selection only.
B) Admit only pupils who are graduating from elementary schools and would normally attend junior high school or intermediate schools in District 21. Students in the 6th grade of K-8 schools shall be eligible.
Those students accepted for the program leaving 6th grade to go into 7th grade at Mark Twain. Those students accepted for the program leaving 5th ...

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