Appeal by the Commissioner of Education of the State of New York, the members of the Board of Regents of the State of New York, the Superintendent of Schools of the City of Buffalo and the members of the Board of Education and the Common Council of the City of Buffalo from judgment of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, finding appellants in violation of the fourteenth amendment to the Constitution of the United States and 42 U.S.C. § 1983 for intentionally causing and maintaining a segregated school system.
Kaufman, Chief Judge, Smith and Mulligan, Circuit Judge.
The Commissioner of Education of the State of New York, the members of the Board of Regents of the State of New York, the Superintendent of Schools of the City of Buffalo, and the members of the Board of Education and the Common Council of the City of Buffalo appeal from a judgment of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, finding them liable for "intentionally causing and maintaining a segregated school system" in violation of the equal protection clause of the fourteenth amendment and 42 U.S.C. § 1983. Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y. 1976).
The appellants raise a number of discrete issues on this appeal, foremost among them, the following:
(1) Whether the district court had subject matter jurisdiction over this suit;
(2) Whether the district court abused its discretion in permitting the addition of the individual members of the Buffalo Board of Education and the New York State Board of Regents, in their official capacities, as well as the newly appointed Buffalo Superintendent of Schools, as parties defendant in this suit;
(3) Whether the district court applied the proper legal standard in determining that the appellants intentionally segregated the Buffalo school system;
(4) Whether the appellees presented sufficient evidence to demonstrate that the city or state appellants were responsible for unlawful segregative acts;
(5) Whether the district court erred in instructing the state appellants to devise a remedial plan involving suburban schools;
(6) Whether it was erroneous for the district court to consider evidence related to discrimination in housing patterns in the Buffalo area.
We have determined that the district court had subject matter jurisdiction over this suit, and personal jurisdiction over the appellants. It understood and used the proper legal standard in determining whether intentional segregation was practiced. We have examined the record and find that it contains sufficient evidence to warrant the court's finding that the city appellants are liable for unlawful segregative acts. There is, however, insufficient evidence to warrant a finding of liability on the part of the state appellants. Accordingly, we affirm the judgment of the district court with respect to the Buffalo Superintendent of Schools and the members of the Buffalo Board of Education and Common Council, in their official capacities, and we reverse its judgment with respect to the New York State Commissioner of Education and the members of the State Board of Regents, in their official capacities.
Parents of a number of Buffalo schoolchildren, the Citizens Council for Human Relations, and the NAACP, Buffalo Branch, brought this class action suit against state and city authorities alleging the creation, maintenance, and perpetuation of segregated schools in Buffalo, New York. They filed their initial complaint in this action in June, 1972, and later successfully moved to add as defendants the Mayor of the City of Buffalo and members of its Common Council.
Following the filing of a joint stipulation of facts, trial was held before Chief Judge John T. Curtin in October, 1974. In April, 1976, appellees moved to add as parties defendant the newly appointed Superintendent of Schools, members of the Buffalo Board of Education, and members of the Board of Regents.
On April 30, 1976, Judge Curtin granted the appellees' motion, and simultaneously issued the Decision and Order which found state and city appellants liable for intentional racial discrimination. 415 F. Supp. 904 (W.D.N.Y. 1976). Remedy hearings were held in June, 1976, and a preliminary remedial Decision and Order was issued on July 9 of that year. Motion to reconsider the April 30 decision was denied, and the state and city parties filed notices of appeal.*fn1
On the following December 14, however, Judge Curtin directed all parties to brief the United States Supreme court's opinions in Austin Independent School District v. United States, 429 U.S. 990, 50 L. Ed. 2d 603, 97 S. Ct. 517 (1976), and Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976), as they might impinge on the instant case. On March 1, 1977, in response to a motion made by city appellants, Judge Curtin filed a Supplementary Decision and Order reconsidering and affirming the Decision and Order of April 30, 1976. 429 F. Supp. 206 (W.D.N.Y. 1977).
Appeal is taken from the district court's finding of liability, remedial order, and reaffirmation of the appellants' liability.
Appellants argue here that the district court lacked jurisdiction over this action, for the suit was in reality brought against governmental entitles which are not "persons" within the meaning of 42 U.S.C. § 1983. They argue, further, that the court erred in adding as defendants individual members of the Buffalo Board of Education and the New York State Board of Regents. These conclusions follow from three central premises: (1) liability under § 1983 is "personal," and the officials sued were, for the most part, not members of the respective boards at the time of the alleged constitutional violations; (2) the addition of parties defendant following the conclusion of trial violates the due process rights of these individuals, for they were unable to be heard to defend themselves against the charge of unlawful behavior; and (3) the proof at trial was directed at state and city boards, entities which cannot be found liable under § 1983. Substitution of individual members for governmental entities is, it is alleged, a mere sham in this case, and hence insufficient to cure jurisdictional defects.
We believe to the contrary that the district court did have subject matter jurisdiction in this case. The appellees brought this action pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3).
Every person who, under color of any statute... of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The United States Supreme Court has construed the term "person" in § 1983 narrowly, holding that municipalities are immune from suit under the statute. And this is true both in damage actions and when injunctive relief is sought. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961).*fn2 These holdings have been gradually expanded so as to exempt other kinds of municipal entities,*fn3 states, and counties.
The Supreme Court has not yet addressed the issue of whether school boards are "persons" within the meaning of § 1983. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 279, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). This court, however, has held that they are not to be so construed. Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S. Ct. 807, 50 L. Ed. 2d 789 (1977).*fn4 Whether state agencies, like the Board of Regents, are "persons," is a more difficult matter to ascertain, and must be considered on a case by case basis. See e.g., Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974), rev'd on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 44 L. Ed. 2d 621, 95 S. Ct. 2051 (1975); 1 Moore's Federal Practice Para. 0.62 n.24. But however this may be, the eleventh amendment to the United States Constitution acts as an independent impediment to suits against the states and their agencies. See Mount Healthy City School District Board of Education v. Doyle, supra, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471; Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974).
While municipal school boards and state boards of regents may be exempt from suit under § 1983, their members, sued in their official capacities, are not. Thus it is settled law in this circuit that "municipal and state officials, sued in their official capacities, are 'persons' within the meaning of § 1983 when they are sued for injunctive or declaratory relief." Monell, supra, 532 F.2d at 264.
In the case of states and their component agencies*fn5 which are protected by the eleventh amendment as well as by § 1983, the Supreme Court has permitted suit against state officials and employees of state agencies since as early as 1908 in its opinion in Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). There the Court created the legal fiction that a state officer who violates the federal constitution acts under color of state law, bringing his unlawful action within the purview of § 1983, but at the same time loses his status as a state official, and hence the protection of the eleventh amendment. While the Court's analysis may not be conceptually clear, and indeed may even be internally contradictory, it has been the case since Ex Parte Young that suits against state officials for equitable relief restraining unconstitutional conduct have usually been entertained by the federal courts.*fn6 An analogous fiction sustains claims against city officials and members of city boards and agencies when equitable relief is sought under § 1983.
Appellants, however, do not abandon the argument at this point. Rather they press it to its logical limit by arguing that the individuation which is required to avoid eleventh amendment and § 1983 limitations on subject matter jurisdiction also governs liability under the statute. Since most board members did not assume office until after the discriminatory events alleged at trial, and since board members were joined as parties defendant only after the conclusion of the ...