The United States District Court for the Eastern District of New York, Honorable Jack B. Weinstein, found the Mark Twain Junior High School in Brooklyn to be unconstitutionally segregated by race as a result of actions by the Community School Board. The District Court ordered that the school become a model school under a magnet school plan, pursuant to a gradual transformation, and that if the plan failed, busing of children to Mark Twain would become effective. The Judge also "mooted" claims by the school board against federal, state and city authorities charging them with having caused racial school segregation at Mark Twain because of their housing policies. The Court of Appeals, Gurfein, Circuit Judge, upheld the finding of de jure segregation and held, further, that the magnet school plan and its timing was a constitutionally acceptable plan of desegregation. Affirmed.
Friendly, Timbers and Gurfein, Circuit Judges.
This is an appeal from a final judgment in what the District Court (Weinstein, J.) described as the first New York City school desegregation case to reach a federal court. Hart v. Community School Board of Brooklyn, New York School District #21, 383 F. Supp. 699 (E.D.N.Y. 1974) (opinion); id. at 769 (order).
A class action by school children plaintiffs was brought by lawyers for the National Association of Colored People on behalf of children attending Coney Island's Mark Twain Junior High School, J.H.S. 239 ("Mark Twain"). The defendants are the Community School Board of Brooklyn, New York, School District Number 21 ("CSB 21"), its members, and the Chancellor of the Board of Education of the City of New York. The action, begun on August 4, 1972, alleged that the defendants are maintaining Mark Twain as an unconstitutionally racially segregated and underutilized school. The plaintiffs prayed for declaratory and injunctive relief, including a direction to the defendants "to formulate and implement forthwith a comprehensive plan which will eliminate, with deliberate speed, the racially segregated and underutilized nature of Mark Twain Junior High School and which will provide for and assure equal educational opportunities for the plaintiffs and the members of their class." The defendant CSB 21 and its members interposed a general denial and defended on the ground, inter alia, that if segregation exists, it is due to housing patterns fostered and maintained by the city, state, and federal authorities who have been impleaded as third-party defendants.*fn1
The third-party complaint filed by CSB 21 sought declaratory and injunctive relief on a wide front. It sought a declaration that the third-party defendants, city, state, and federal, are engaged in a policy of affirmative action designed to perpetuate racial imbalance in public and public-aided housing, that this policy is the "basic cause for racial imbalance and segregation in the public school systems of the City", that approval of public housing project construction sites in Coney Island, in particular, perpetuates segregated living patterns, and that the City has established a policy of separate but equal housing and educational facilities. The specific relief requested against the third-party defendants was to direct that they act to desegregate existing public housing in the City, particularly in Coney Island, and execute plans to desegregate all presently segregated New York City public housing projects. The third-party complaint also sought a direction to the Federal and State defendants not to approve new loans and new grants to the City until its discriminatory practices have been eliminated. It finally sought an order permanently requiring the third-party defendants to cease and desist from illegally and unconstitutionally processing and selecting in a discriminatory manner tenants' applications in public and public-aided housing.
By filing this far-reaching third-party complaint the local school board did far more than seek to set up segregative acts of other agencies as a defense for itself. It sought to charge the other agencies with full responsibility. It succeeded initially in getting the District Judge to convert a narrow issue involving a single junior high school with a capacity of about 1,000 students into what could only become an issue so broad as to defy judicial competence, a matter which would require coordinated legislative and executive action by three governments, federal, state and city, for a solution. In the words of the Supreme Court, "one vehicle can carry only a limited amount of baggage." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971).
The problem posed by the third-party complaint had at its core the intractable question of how urban slums can be rehabilitated for the benefit of people already living in the area, when they are largely from the minority group, without continuing the already existing racial population pattern. On the other hand, the dislocation of white residents, in other neighborhoods, presents problems of difficulty. And it is possible that "black" schools tend to make neighborhoods in their vicinity black as well.
As the Supreme Court said, with respect to the objective in school cases, "it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools." Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 23.
The District Court refused, however, to dismiss the third-party action on motion of the third-party defendants.*fn2 The Court determined that the third-party defendants would have to remain in the case to insure that a comprehensive remedy could be granted by the Court.
A full trial was held both on the original complaint and on the third-party complaint commencing on January 2, 1973.
On December 19, 1973, the District Court announced its decision. The Court stated that an opinion would follow, but that it had decided that the School Board and Chancellor were liable for conducting a segregated school in violation of the Constitution; and that the Court would require a Plan, effective in September, which would provide that the school population of Mark Twain not deviate more than ten percent from the average ratio of minority to white population in District #21.
On January 28, 1974, the Court filed a 152 typewritten page decision and order accordingly. 383 F. Supp. 699 (E.D.N.Y. 1974). It did not find the third-party defendants liable over for the situation at Mark Twain, "mooted" the action as to them, but retained jurisdiction over them for purposes of relief. CSB 21 filed a timely Notice of Appeal from the order on February 21, 1974, to protest the "mooting" of CSB 21's third-party complaint.
The parties were ordered to submit a plan in conformity with the decision by March 1, 1974 to be placed in operation in September, 1974. The parties submitted plans on March 1. The Court held hearings and determined to appoint a Special Master.
On April 2, 1974 the Court appointed Curtis J. Berger as Special Master, and found that "plans to deal comprehensively with conditions that have figured in the segregation of Mark Twain cannot be executed by September of 1974. Accordingly, the desegregation of Mark Twain is postponed to September, 1975."*fn3
Appellants sought a reinstatement of the original September, 1974 date, but the Court adhered to its view. Appellants sought to appeal to this Court, but the appeal was dismissed on the ground that the District Court had never issued an injunction from which an appeal could be taken. 497 F.2d 1027 (1974) (Friendly, J.); see Taylor v. Board of Education, 288 F.2d 600 (2 Cir. 1961).
The District Court, after the Special Master had reported in July, had before it three basic plans for desegregation of Mark Twain: 1) a plan proposed by the School Board; 2) a plan, quite similar but more detailed, by the Special Master; and 3) a plan proposed by Professor Dodson, appellants' expert on educational desegregation, who had devised several alternative plans, but favored his Model II plan.
The District Court entered a final judgment on July 26, 1974 from which this appeal has been taken. That judgment, in the form of a memorandum opinion and order, provides in summary that the plan tendered by the School Board is to be put into operation, with certain conditions added by the court.
The plan which has been ordered will: (1) redraw the feeding patterns of the middle schools so that the incoming grade of each intermediate, junior high school, and 7th and 8th grades of K-8 schools, will reflect approximately 70% Caucasian and 30% "minority" population -- which is the approximate ratio of Caucasian to minority in the school population of the district's middle schools;*fn4 (2) graduate the 8th and 9th grades of Mark Twain; (3) transfer Mark Twain's present 7th grade, and zone the graduating pupils of P.S. 188 and P.S. 238 (predominantly "minority" schools) to middle schools in the district other than Mark Twain; (4) establish at Mark Twain a District School for gifted and talented children -- a "magnet school".*fn5 383 F. Supp. at 771.
The Court itself added a proviso to the plan. The Court ordered:
"The magnet school plan will be deemed to have failed if there are not in attendance at Mark Twain -- in the ratio of approximately 70-30, white to minority students -- at a minimum at the beginning of the school year in September 1975, 350 students; in September 1976, 750 students; and in September 1977, 1050 students. Pursuant to the Master's recommendations, the plan will also be considered to have failed if at least 400 children have not expressed an intention to enroll in the program at Mark Twain by March 15, 1975; 800 children by March 15, 1976; and 1100 children by March 15, 1977, in order to allow for natural attrition and in order to provide adequate time for an alternative plan should failure be highly probable."
The District Court also ordered:
"In order to provide for an alternative plan should the 'Magnet School' concept fail, by January 1, 1975, the Chancellor, in cooperation with the School Board, shall provide, in reserve, detailed proposals for new zoning and busing schedules based on 'Model II' of the proposal of Dr. Dodson.*fn6 The full reserve plan shall be kept up-to-date by necessary modifications based upon changes in population. Modifications shall be prepared by January 1, 1976 and by January 1, 1977 for the next succeeding school year."*fn7
Id. (Footnotes added.) The parties refer to the Model II plan as the "back-up plan."
The appeals now before us for decision are:*fn8
(1) The plaintiffs appeal from the July 26, 1974 judgment, confined to the District Court's approval of the plan to make Mark Twain a school for gifted and talented children, on the ground that the plan is constitutionally impermissible, while at the same time seeking approval by this Court of the Dodson plan (Model II), and asking that the District Court's alternative plan become operative now.
(2) CSB 21 appeals from the order of February 21, 1974, which purported to moot its third-party complaint.
(3) CSB 21 also cross-appeals from the decision holding it liable for the segregated condition of Mark Twain.
We shall start with a consideration of the cross-appeal of CSB 21 from the order holding it liable for the segregation of Mark Twain and ordering affirmative action, for the balance of the final judgment would be beyond the Court's jurisdiction if that phase of the judgment were reversed. We shall deal with the facts involved on the cross-appeal in Part I.
We deal first with the appeal of Community School Board 21 from the determination of the District Court that the segregated nature of Mark Twain is the result of de jure as distinguished from de facto segregation.
This case, as the District Court noted, is the first school desegregation case in the City of New York to come to a federal court. Although this court early decided a northern segregation case, Taylor v. Board of Education of New Rochelle, 191 F. Supp. 181, 195 F. Supp. 231 (S.D.N.Y.) (Kaufman, D.J.), aff'd, 294 F.2d 36 (2 Cir.), cert. denied, 368 U.S. 940, 7 L. Ed. 2d 339, 82 S. Ct. 382 (1961), and later a case involving a preliminary injunction to register children from a single public housing complex in a particular neighborhood elementary school, Pride v. Community School Board, 482 F.2d 257 (2 Cir. 1973), and in a particular school district, 488 F.2d 321 (2 Cir. 1973), we have not been required to confront the difficult and delicate problems involved in urban school segregation in a metropolitan area, as have other federal courts with jurisdiction over the cities of Charlotte, Denver, Detroit, Grand Rapids, Kalamazoo, Emporia and Boston. In the cases arising from those urban areas, the courts were confronted with claimed segregation of entire school districts and, in the case of Detroit and Denver, for example, of an entire city.
We are not dealing here with a school system which has ever "been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education." See Keyes v. School District No. 1, 413 U.S. 189, 191, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973). Nor are we dealing with a school system that is alleged to be segregated now, either de jure or de facto, and which requires desegregation. There is no complaint that the schools in District 21 now operate on a dual racial system.*fn9
We are dealing solely with one school, Mark Twain, which the District Court found to be segregated. That is like the situation with which District Judge Kaufman (now Chief Judge of this Court) had to deal in the landmark case of Taylor v. Board of Education of City School District of New Rochelle, supra. Judge Weinstein found that Mark Twain is not only segregated in fact, but that the segregation was caused, among other factors of state activity, by the action and inaction of the school authorities. On this basis he determined the segregation to be a de jure segregation, cognizable as state action under the equal protection clause of the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954) (Brown I).
CSB 21 contends that the District Court applied the wrong standard in determining whether its action or inaction created a condition of segregation. It maintains that the District Court determined that CSB 21 had violated the Constitution in spite of a finding that the Board was not racially motivated. It points to the "finding" by Judge Weinstein in his January 28, 1974 opinion on liability to the effect that the school authorities did not have "any intent or desire that Mark Twain be segregated. . . . The school officials cannot be charged with racial prejudice in their official positions or with segregative design or intent." 383 F. Supp. at 721. CSB 21 urges that upon the basis of Keyes, supra, the finding that it is guilty of having caused segregation without a finding that its activity was racially motivated is reversible error.
The plaintiffs, on the contrary, contend that the Court, in holding CSB 21 constitutionally liable for creating and maintaining Mark Twain as a segregated school, used the appropriate standard. While conceding that under Keyes there is a distinction between de facto and de jure segregation, they argue that a showing that the segregation was, to a significant degree, intentionally or purposely caused or maintained by the school authorities is enough, without proof of a racially discriminatory motive.
We must turn first to the District Judge's findings to determine whether he correctly held that segregation in the constitutional sense exists at Mark Twain. We must then review his findings on what CSB 21 did or did not do to determine whether he correctly ...