The opinion of the court was delivered by: FRANKEL
Plaintiffs, New York City public school students of Hispanic origin (along with their parents and guardians), are entitled to a program of bilingual education under a consent decree signed on August 29, 1974. The decree was made pursuant to 42 U.S.C. § 2000d, federal regulations and guidelines thereunder, and the Supreme Court's enforcing pronouncements in Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974). The extensive steps required for compliance have placed this court in an increasingly common, but unvaryingly delicate and difficult, role for federal trial courts - the role of supervising faithful performance of tasks that are in their nature primarily administrative rather than judicial. Cf. Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281 (1976).
The court's assignment in such cases calls for a nice mixture of humility and resolve. On the one hand, seeking to superintend and rule upon intricate and technical programs like the ones in this case, an appointed judge is, or certainly should be, forcefully reminded that "[courts] are not the only agency of government that must be assumed to have capacity to govern." Stone, J., dissenting in United States v. Butler, 297 U.S. 1, 87, 56 S. Ct. 312, 329, 80 L. Ed. 477 (1936). On the other hand, the rights of the people under the law, when they are duly brought to issue before the court, must be forthrightly declared and enforced.
The mandate to decide emerges now in more than routinely tense circumstances: plaintiffs have demanded that the Board of Education and the Chancellor be held in contempt for their failure to comply with the duties they assumed under the consent decree and implementing orders of the court. The word "contempt" rings fiercely; if its connotations in law included only lay notions like scorn and wilful disobedience, plaintiffs could not prevail. But the idea in this context includes failures in meaningful respects to achieve substantial and diligent compliance. In this sufficient sense, the defendants are found to have been in contempt, and it has become the court's duty to declare it. The grounds and occasion of the declaration are detailed below. For reasons also to be stated, a prime practical consequence at the present time will be an award to plaintiffs of costs and attorneys' fees for their efforts in seeing to the performance of defendants' obligations.
The case began in September of 1972. For most of two years, defendants opposed robustly the rights plaintiffs asserted to bilingual instruction. In 1974, however, the Supreme Court decided Lau v. Nichols, supra, and plaintiffs made an imposing motion for summary judgment. Thus confronted, and with some encouragement from this court, defendants joined with plaintiffs in the creative efforts that produced the consent decree. For their primary contributions to that result, plaintiffs were held entitled to attorneys' fees, 65 F.R.D. 541 (1975).
The decree provided for a broad program: for methods of identifying those to receive bilingual instruction, for specific forms of instruction in Spanish and English, for the formulation of pertinent educational standards, the preparation and distribution of instructional materials, the recruitment and training of staff, the procurement of suitable funding, continued consultation with plaintiffs, periodic reports, and an array of other measures unnecessary to detail now. Time limitations at various points reflected the results of hard bargaining and compromise. It was recorded, for example, that the development of methods for testing and identifying participating students had already begun, "with the objective of implementation by October 1, 1974." Minimun educational standards were to be promulgated by April 1, 1975. While plaintiffs had sought greater speed, "full implementation of the Program" was put off for over a year, to September 1975. In the meantime, a timetable for still other steps, including the designation of pilot schools and their inauguration of the full program by the spring semester of 1975, was prescribed.
A Special Master, Morris P. Glushien, Esq., was appointed to resolve disputes that seemed likely to arise. Serving mostly without pay, Mr. Glushien has rendered valuable service to the parties, the court, and the City in adjudicating, or otherwise helping to resolve, a variety of matters. The court has been employed directly for similar and related assignments from time to time. See 394 F. Supp. 1161 (D.C.1975).
In the spring and summer of 1975, plaintiffs proceeded by orders to show cause to press claims that defendants' performance under the decree was falling substantially short. In May, eight months after testing methods were to have been in place, they demanded administration of eligibility tests to huge numbers said still to have been neglected. In July, another order to show cause sought to prevent the discharge, layoff, or "excessing" of instructional personnel needed for the program. The court was confronted at that point with a failure by defendants to supply even sufficient information for an intelligent adjudication. Defendant Board was ordered, on August 15, 1975, to submit by August 25: "(a) the number of pupils, by school and school district, entitled to receive the Consent Decree Program as determined by the L.A.B. [Language Assessment Battery] test results; (b) the number of Spanish speaking and Spanish surnamed pupils, by school and school district, who because of absence were not given all or any part of both the English and Spanish version of the L.A.B. tests; (c) the number of licensed bilingual teachers, the number of licensed teachers of English as a Second Language, and the number of teaching personnel in any other relevant job categories, by school and school district, who are currently included in the school's personnel staff and who will be available to provide the Consent Decree Program to children entitled to receive it in September, 1975; and (d) the number of licensed bilingual teachers and the number of licensed teachers of English as a Second Language who are available to provide the Consent Decree Program to children entitled to receive it in September, 1975, but who are not yet appointed."
On August 26, defendants supplied plaintiffs and the court with only some of the required information. The insufficiency, insufficiently explained, triggered talk and thoughts of possible contempt problems. In the event, however, on September 9 (when the picture was complicated by a teachers' strike, in progress since September 8, which ended on September 16), the court reiterated and expanded the earlier order for information by ordering as follows:
"1. Within ten days after the end of the teacher strike now in progress, or as promptly as may be possible before that, the defendants will supply the four categories of information which were to be supplied under the Court's order of August 15, 1975.
"2. On the same schedule, which is to say again as promptly as possible but, in any event, not later than ten days after the end of the strike the defendants will administer the English L.A.B. test and the Spanish L.A.B. test where those are respectively appropriate, that is to say, to all Hispanic pupils who have not heretofore been fully tested in these two respects as they are applicable to these students under the decree and subsequent orders of the Court.
"3. Again as promptly as possible but, in any event, within twenty days after the end of the teachers strike, the defendants will serve upon the plaintiffs and file with the Court the following three categories of information:
"(a) On a school-by-school basis, the total number of pupils eligible for the program, and that total should include, of course, those who were heretofore found to be eligible by the L.A.B. test and those found to be eligible as a result of the L.A.B. test to be administered in accordance with today's order.
"(b) On a school-by-school basis, the program designs for the supplying of the program for all pupils eligible within the respective schools.
"In that connection, the Court relies both on the good faith of the parties in making these requirements intelligible by their cooperative endeavors and understanding and on the conversation on today's record by which the meaning of that possibly cryptic phrase, 'program design,' should be sufficiently clear for implementation.
"(c) A list of pupils eligible for the program who are not in fact receiving the program because of personnel shortages or other difficulties, and the word 'list' should not be misunderstood. These names should again be supplied school by school so that they will be meaningful and usable.
"And then, in that same connection, a statement of the Board's proposals and intentions for the delivery of the program to such pupils as promptly as possible, whether that is to be done by the hiring of additional teachers, by the transportation of teachers or pupils between schools or other measures to be specified in the statement of information given in this respect by the defendants.
"Except to the extent just ordered, the plaintiffs' motion is denied, but that is, as the Court has today indicated, without prejudice to such later applications as the plaintiffs may deem necessary, although the Court reaffirms its expression of hope that this complex problem can be mostly or wholly handled by cooperation and consultation, rather than further orders or sanctions of the Court."
On December 22, 1975, plaintiffs brought the present contempt proceeding alleging that defendants were in violation of the August 1974 consent decree and the August 15 and September 9, 1975, orders in the following respects: (1) defendants were not providing the program as required to thousands of entitled students; (2) defendants had failed to hire the necessary available personnel; (3) defendants were using unqualified personnel in the program; (4) defendants had failed to complete testing of the eligible population; and (5) defendants had failed to submit information required by the court's August 15 and September 9 orders. A reference was made to the Honorable Charles J. Hartenstine, Jr., as Special Master, to take evidence and report his findings and recommendations. After some 19 days of evidentiary hearings, but before there was time to report, all of us were stunned, for reasons far transcending any lawsuit, by the Magistrate's sudden and untimely death. The parties later agreed that the court should make its findings and conclusions upon the full and comprehensive record compiled by the Magistrate. This account and decision are the results.
Briefly stated, the court's ultimate findings of contempt are determinations that defendants violated their obligations under the decree by failures of diligence, effective control, and steadfast purpose to effectuate the prescribed goals. The fact that goals were not achieved, or achieved only partially and tardily, is not in itself grounds for either criticizing the defendants or holding their conduct contumacious. The court is not empowered to command, any more than it can pretend for itself to achieve, performance approximating perfection. The court is obliged, however, to require substantial performance and due diligence. It is in these vital respects that today's decision must go against the defendants. As will appear, they failed steadily and repeatedly to exercise their power and authority so that those they controlled would proceed promptly and in good faith to accomplish the tasks commanded by the consent decree. This failure reflected their own lack of concentrated will to achieve substantial compliance. In these central respects, plaintiffs have demonstrated that (a) defendants were seriously remiss, (b) this contempt proceeding was necessary and proper to remedy the defaults, and (c) plaintiffs and their counsel have made a valuable contribution by promoting in this fashion the organization and implementation of the bilingual education program required under the law.
As was stated in the preceding paragraph, failure of timely performance is not found contumacious in itself. Nevertheless, it aids orderly understanding to have in view the respects (to a substantial extent undisputed) in which the goals of ...