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March 15, 1978;

Gordon AMBACH, Commissioner of Education of the State of New York, et al., Defendants

The opinion of the court was delivered by: DOOLING


 DOOLING, District Judge.

 The Andrew Jackson High School is located in Queens about one mile from Nassau County. Preliminary attendance data for the current school year show that the school is utilized to the extent of 76% of its capacity and that at October 31, 1977, there were 2,532 children on the school's register. Of these, 2,454 are black, 2 are of American Indian, Asian, or Pacific Island origin, 75 are Puerto Rican or other Spanish surnamed children and 1 is classified as "other".

 Andrew Jackson opened in 1937. In 1957, the first year in which ethnic data were reported, the register showed that 82% of the children were classified as "others", the term used for statistical purposes for children not identifiable as belonging to any "minority". The percentage of "others" registered for attendance at Andrew Jackson declined steadily from year to year until by 1974 2% of "others" were in attendance. The School Profiles report of 1974-1975 showed that there were 57 Jackson students classified as "others" at October 31, 1974, comprising 2% of those on the register, and the School Profiles for 1975-1976 reported 30 "other" children in attendance or 1%. At October 29, 1976, there were 4 "other" children at Jackson.

 New York City is a single school district. For many statistical and administrative purposes, however, it is administered in five major divisions which correspond to the five boroughs. The School Profiles report for 1975-1976 reported that in that year at October 31, 1975, there were 260,012 academic high school students, 40.9% of whom were classified as "other", 35.6% of whom were classified as black, 16.6% were classified as Puerto Rican and 4.7% as other Spanish-surnamed, 2.2% as Oriental and 1/10th of 1% as American Indian. The data differ from borough to borough. In Manhattan, in 1975-1976, 42.1% of the academic high school students were black, 26% were Puerto Rican, 11.5% were other Spanishsurnamed, 12.8% were Oriental, 2/10ths of 1% were American Indian and 15.4% were classified "other". In the Bronx academic high schools, in 1975-1976, 39.7% were black, 34% Puerto Rican, 3.2% other Spanish-surnamed, 1% Oriental, 1/10th of 1% American Indian, and 22% were classified as "other". In the academic high schools in Brooklyn in 1975-1976, 40% of the students were black, 14.4% Puerto Rican, 2.2% other Spanish-surnamed, 2% Oriental, 1/10th of 1% American Indian, and 41.4% were classified "other". In the Queens academic high schools at the same date, October 31, 1975, it appeared that 30.4% of the students in the academic high schools were black, 6.1% were Puerto Rican, 5.8% other Spanish-surnamed, 2.1% Oriental, 1/10th of 1% American Indian, and 55.4% were classified as "other". In the Staten Island academic high schools in the same school year 7.4% of the children in register were black, 3.1% Puerto Rican, 1.1% Spanish-surnamed, 4/10th of 1% were Orientals, and 87.9% were classified as "other".

 The 1975-1976 school year data as given in School Profiles, however, show that if the figures are analyzed on a year by year basis, then for all boroughs the percentage of blacks and Puerto Ricans is lowest in the 12th grade and is progressively higher in grades 11 and 10 and 9. The effect of this persistent factor is broadly reflected in all the data furnished; the data by boroughs, by individual schools, and for the district, reflect this trend element in the steadily rising percentage of minorities and declining percentage of "others". The preliminary data for the current school year, as at October 31, 1977, are illustrative. In the Manhattan academic high schools at October 31, 1977, 43% of the students were black (1975-1976, 42.1%) 40% were Puerto Rican and other Spanish-surnamed (1975-1976, 37.5%) 6% were American Indian, Asian, etc., (1975-1976, 5%), and 11% were "other" (1975-1976, 15.4%). In the Bronx academic high schools at the same date 40% of the students were black (1975-1976, 39.7%), 38% Puerto Rican and other Spanish-surnamed (1975-1976, 37.2%), 2% were American Indian, Asian, etc. (1975-1976, 1.1%), and 20% were "other" (1975-1976, 22%). In the Brooklyn academic high schools 44% were black (1975-1976, 40%), 19% Puerto Rican and other Spanish-surnamed (1975-1976, 16.4%), 2% were American Indian, Asian, etc. (1975-1976, 2.1%), and 35% were "other" (1975-1976, 41.4%). In the Queens academic high schools, 33.4% were black (1975-1976, 30.4%), 14.8% were Puerto Rican and other Spanish-surnamed (1975-1976, 11.9%), 3.2% were American Indian, Asian, etc. (1975-1976, 2.2%), and 48.6% were "other" (1975-1976, 55.4%). In the Staten Island academic high schools at the same date 9% were black (1975-1976, 7.4%), 5% Puerto Rican and other Spanish-surnamed (1975-1976, 4.2%), 1% American Indian, Asian, etc. (1975-1976, 0.4%), and 85% were "others" (1975-1976, 87.9%).

 In 1957 when the enrollment of "others" at Andrew Jackson High School was 82% of the registration, the percent of "others" in the Queens academic high schools taken in total was 94.2%. At that time the total enrollment in the Queens academic high schools was 48,930 children. The highest the enrollment has been since that date was 72,131 in 1975. In the period from 1957 through 1977 the percentage of "others" in the Queens academic high schools has uninterruptedly declined from 94.2% to 48.6% in the current school year (according to the preliminary figures as at October 31, 1977). Over the years 1957 through 1976, the whole period for which the Board of Education has been keeping ethnic data on school registrations, the Queens elementary schools have shown a decline from 85.9% "other" in 1957 to 47.5% in 1976. As in the case of the academic high schools, the decline in percent "other" is uninterrupted. The peak elementary school population came in 1965 when there was a total enrollment of 131,608. The enrollment in 1976 was 118,266.

 Analyzing the data on the enrollment in all public schools in Queens from kindergarten to grade 12 throws an additional light on what may be expected in the near future. In the school year 1976-1977 the children entering school for the first time in the first year were 43.8% "other". The children in the graduating class of high school at the same date were 60.6% "other". In each year from the entering class of six year olds to the graduating class in high school the percent of "others" in attendance at October 29, 1976, was a little higher, again indicating the same uninterrupted decline in "other" percentage in school attendance. The only aberration is in the seventh year which is shown as having 47.3% "other", which is more than either the eighth or ninth years at the date in question.

 Projection of the trends exhibited by the data through 1976 to the school year 1981-1982, it is indicated forecasts a 36.4% "other" school population in the Queens academic high schools in that year, and will show a 28.3% "other" school population in the Brooklyn academic high schools in the same school year.

 Comparison of the ratio of Queens births of "others" to total Queens births in the years 1965 through 1970 with the ratio of "others" entering the Queens public schools 6 years later, when the children would have reached school entry age, shows that the school entrants' ratio of "others" to total school entrants is radically lower. Thus 81% of the Queens births in 1965 were "others"; in 1971 only 54% of the school entrants were "others." In 1970 the "others" births were 75% of the total; in 1976 the school entrants who were "others" were only 44% of the total. Projecting the trend of these figures to school entrants of 1981 indicates that, although 65% of the 1975 Queens births were "others," only 35% "others" are expected to enter the Queens public schools in 1981. The current registers of the Queens academic high schools, the number of "others" on register at each school and the percent of the school's population that the "others" represented are as set forth in the following Table I (the schools are arranged in the order of the percent "others" in the schools): TABLE I Queens Academic High Schools At October 31, 1977 (Unaudited) On Register Number of Percent Percent School 10/31/77 "Others" "Other" Util ization Grover Cleveland 4571 3141 69 152 L.I. City 3040 1913 63 131 John Adams 5096 3107 61 124 Bayside 3878 2337 60 116 Richm ond Hill 2841 1706 60 99 Beach Channel 3581 2139 60 89 Martin van Buren 3706 2205 59 109 Francis Lewis 3031 1794 59 105 Forest Hills 2608 1469 56 90 Benjamin Cardozo 3261 1740 53 91 Wm. C. Bryant 4049 2022 50 111 Flushing 2863 1316 46 99 Hillcrest 3098 1368 44 89 Far Rockaway 2733 987 44 75 John Bowne 3979 1718 43 117 Jamaica 3285 1366 42 105 New town 4862 1585 33 109 Springfield Gardens 3300 923 28 97 August Martin 1806 24 1 75 Andrew Jackson 2532 1 76 67620 32861

 Andrew Jackson has been a single session school for some years, as were, in 1976, August Martin, Beach Channel, Far Rockaway, Francis Lewis, Hillcrest, and Newtown Annex. Nine of the other academic high schools operated two class sessions, and three - Forest Hills, Grover Cleveland, and Long Island City - operated three class sessions.

 It is evident from the Table I figures that over 55% of the children classified as "other" attend schools in which the percent of "other" students is 59% or more. Seventy-five percent of the "other" children attend schools in which the percentage of "other" is over 45%, and 92% of the "other" children attend schools in which the percentage of "others" exceeds 40%.

 In the academic high schools in Queens at October 31, 1977, there were 22,557 black children on register constituting 33.4% of the Queens academic high school population. Of these children over 27% attended schools in which the register of black children was 67% or more. Black children were 97% of the children on register at Andrew Jackson, 87% of the children on register at August Martin and 67% of the children registered in Springfield Gardens High School. About 37.5% of the black children on register in Queens attend schools in which the register showed more than 40% black children and 43% of the black children attended schools in which the register was more than 35% black. Overall 68% of the black children were in schools in which the black register was 30% or more.

 The Andrew Jackson High School and the area surrounding it form only one part of an extremely large school district. The immense increase in the black and Spanish-surnamed population of the City as a percentage of its total population has interacted with an inexorable pattern of residential segregation dramatized by the concentration of poor minorities in the older parts of the City where age-worn housing and low-income public housing provide apparently increasingly segregated neighborhoods. During this same period the exodus of principally white middle income families with school-age children to the suburbs had independently influenced the ethnic composition of the academic high school population. And, over this same period the City has lost jobs, and, in consequence job opportunities on a very large scale as businesses have left the City, sometimes for the suburbs to which their middle-income "white collar" workers have preceded them. Queens is both an integral part of the city, sharing its aging and alteration, and in some sort, and in its more recently built-up areas, an inner suburb of the central city.

 So much is common observation. Education in this vast school district can anticipate that the school population in the near future will decline, or, at least, not increase, and there are statistical intimations that net job loss may end if it has not turned toward net job gain. The trend to suburbanization may be in decline. But an overall expectation that the City school district will find its problems of segregation solved by time and migration of population does not exist. The City school district is consciously and properly oriented to dealing with segregation in the schools for the foreseeable future, and in face of a daunting array of apparently irreconcilable forces.

 The case of Andrew Jackson is not the paradigmatic case of the school district at the center of an aging metropolis that absorbs the total syndrome of a deteriorating housing stock that operates as the magnet of poverty, public assistance dependence and low-income public housing, and, so often, is recorded as having an above average incidence of crime and is seen as the area in which poverty may well produce the expectation of defeat and more poverty. Cf. Grier, The Negro Ghettos and Federal Housing Policy, 1967, 32 Law & Contemp. Prob. 550, 553, 559. Contrast Olken, Economic Development in the Model Cities Program, 1971, 36 Law & Contemp. Prob. 205, 215-216. The area around Andrew Jackson is at the edge of the city, an area basically of detached and semi-detached houses, treelined streets, and of one and two family houses. The row house, the apartment house are not absent but are not prevalent. In short, it is physically an area to which families move, not an inner-city "ghetto" of worn and unattractive walk-up multiple dwellings. Analysis of the birth records, reported for Health Districts of the New York City Department of Health in the region of Queens around Andrew Jackson at five year intervals from 1960 through 1975 shows the extent and the concentration of minority births in the area and the increased ratio of minority births over the years covered. The Health Districts covered are roughly those located in the areas from just west of Van Wyck Expressway to the Nassau border and from the southern extremity of the borough to approximately the area of Flushing cemetery and Northern Boulevard in the north. Table II shows the extent of minority births in the Health Districts nearest to Andrew Jackson High School. The school building is located in the southeastern corner of Health District 35.20; just to the east lies Health District 29.20, to the southeast Health District 35.31, and proceeding clockwise around the Andrew Jackson school building as a center are Health Districts 35.32, 35.10 and 28.20. Farther to the west beyond Health Districts 35.10 and 35.32 is Health District 34. North of Andrew Jackson is, finally, Health District 29.10. TABLE II % of Non-White Births, Certain Queens Health Health Districts District 1960 1965 1970 1975 35.20 47 88 9 4 98 29.20 7 12 60 85 35.31 3 23 63 85 35.32 76 70 92 96 35.10 83 91 92 95 28 .20 2 6 28 39 34. 93 93 97 99 29.10 1 1 9 14

 Exhibits E-4 through E-7 are maps showing the health districts and the locations of the high schools in and near the health districts for which the data are given. On these maps the health districts are colored to indicate the differing ratios of minority to total births. Birth data are taken fairly to reflect the ethnic characteristics of the Health Districts and to be predictive of the ethnic composition of the school population in the region. The data showed good agreement with the 1970 census tract data. New York City (like the four other large cities in the state) has a far larger percentage of black and other minority public school students than the parts of the state outside the "Big Five" cities. The statewide data for all public school students (pre-kindergarten through high school) for the school year 1975-1976 were: Spanish Black Surnamed Other Buff alo 43.6% 3.4% 53.0% New York 37.1 28.4 34.5 Rochester 42.3 7.9 49.8 Syracuse 29.5 1.2 69.3 Yonkers 17.4 10.2 72.4 Total "Big Five" Cities 37.0 25.6 37.4 Rest of State 5.0 1.4 93.6 Total State 16.8 10.4 72.8

 In the school year 1975-1976 there were 571,146 black students in the public schools of the state and 408,198 of them, or 71% were in the New York City schools. Of the 351,889 Spanish-surnamed children in the public schools of the state 312,512, or 88%, were in the New York City schools.

 The non-public high schools in Queens in the same school year reported to the State Department of Education the enrollment of 17,849 high school students. The Department's report does not give any ethnic breakdown, but a report of the Diocese of Brooklyn, giving the ethnic breakdown for the preceding school year, indicate that 89% of the students in the Queens Catholic high schools were "others".

 Sewanhaka Central High School District No. 1 and Valley Stream Central High School District No. 1. in Nassau County are contiguous with Queens near the Andrew Jackson High School. None of the high schools in the Valley Stream C.H.S.D. has less than 96.2% "other" students and none of the Sewanhaka C.H.S.D. high schools has less than 92.6% "other" students. The eight senior high schools in these districts enrolled 13,977 students in the school year 1976-1977. Two of the Sewanhaka high schools were not used to capacity and three were used in excess of rated capacity.

 The contrast in the ethnic components of the school populations in a technically urban region and in a contiguous region that is technically suburban reflects a long noted phenomenon, the low ratio of minorities in suburban communities and the high ratio of minorities in the cities that the suburbs enclose. A fairly recent survey of the demographic literature concludes that differences in income do not explain the fact: the suburbs do not remotely have the ratio of black families that an even distribution of all families by income class would place in the suburbs, and, where income classes are mixed, the phenomenon of separation along ethnic lines persists. See Farley, Residential Segregation and its Implications for School Integration, 39 Law & Contemp. Prob. 164, 165-167, 174-177.

 Both the Board of Education of the City School District and its Chancellors, and the State Board of Regents and the State Commissioners of Education, have dealt directly with the question of the racial imbalance in the schools of New York City School District. Boards of Education in New York had, in the earlier part of the 19th Century, been authorized but not required to establish separate public schools for "colored" children, some school boards had done so, and their action had been held valid. People ex rel. King v. Gallagher, 1883, 93 N.Y. 438 (Brooklyn school); People ex rel. Cisco v. School Board of the Borough of Queens, 1899, 161 N.Y. 598, 56 N.E. 81 (Queens schools). After 1954, the New York courts, recognizing the invalidity of de jure segregation, recognized as well the power of the school boards to correct racial imbalance; the courts did not, however, hold that there was either a constitutional or a statutory duty to take steps affirmatively to relieve against racial imbalance. Matter of Balaban v. Rubin, 1964, 14 N.Y.2d 193, 250 N.Y.S.2d 281, 199 N.E.2d 375. School Board action that required bus transportation to redress imbalance was sustained. Matter of Van Blerkom v. Donovan, 1965, 15 N.Y.2d 399, 259 N.Y.S.2d 825, 207 N.E.2d 503. Indeed, the courts have upheld the action of the Chancellor of the City School District in overruling a Community School Board's plan of pupil assignment upon the ground that the plan would contribute to making a particular junior high school a segregated school. Kryger v. Board of Education, 2d Dept. 1971, 37 A.D.2d 622, 323 N.Y.S.2d 777. And at least one court has apparently rejected the contention that pupil assignments may be rejected because a school has apparently exceeded its "tipping point," the court indicating that the appropriate test is whether the schools of a district "reflect the racial composition of the community". McMahon v. Amityville Union Free School District, 2d Dept. 1975, 48 A.D.2d 106, 368 N.Y.S.2d 534.

 The policy statements of the Regents *fn1" and the action of the Commissioner and the Board of Education reflect steady use of statutory power to redress racial imbalance. See, e.g., Matter of Mitchell, 1963, 3 Educ. Dept. Rep. 26 (Malverne); Matter of Fishburne, 1972, 12 Educ. Dept. Rep. 5. Cf. Matter of Gray, 1967, 6 Educ. Dept. Rep. 92, 143. The Regents' expression of state educational policy, in the form it took in February 1975, emphasized that "equal opportunity for high quality education is the right of every pupil in the public schools of this State, regardless of race, creed or color." Every school district was expected by the Regents "to take the steps necessary to enable every pupil to enjoy that primary right." The Regents stated:

"The Regents believe that integrated schools are essential to assure that primary right to all pupils residing in racially diverse communities. We define an integrated school as one in which the racial composition of the student body reflects the pupil population of the school district without necessarily attempting to be proportionate to it, and in which the programs, facilities, and equipment are not racially identifiable. What constitutes a reflection of the population of a school district will depend upon the circumstances in specific situations."

 The Regents outlined as means of achieving high quality integrated education for all pupils the strategic location of new schools or closing unneeded schools or both, optional transfer and open enrollment programs, expansion of magnet and specialized schools, compensatory education programs, curricula that enhance interracial understanding, faculty recruitment from varied racial and ethnic backgrounds, equalization of state aid to school districts, alteration of school attendance zones where necessary, and in some instances, the judicious and reasonable transportation of pupils with due consideration that the health, safety and access to high quality education of pupils are not imperilled and that children of elementary school age are not transported for more than moderate distances.

 The first out-of-the-ordinary action taken in reaction to the increasing ratio of minority enrollment in Andrew Jackson was the granting in 1963 to students in J.H.S. 192, a school in the Jackson "feeder" pattern, of the option to attend one of five Queens high schools other than Jackson. J.H.S. 192 was then 71% minority in enrollment. The option, available to 350 graduates, was exercised by 175 students. The expedient was meant both to reduce the minority ratio and to relieve overcrowding. The minority percentage was held to 39 1/2% by this means.

 A permissive transfer plan, introduced in 1964, gave 100 graduates of J.H.S. 59 and J.H.S. 231, who would have been zoned to Jackson but for the plan, the option of attending Francis Lewis High School. However, in the same period white registration was reduced by 414, and, instead of the anticipated reduction of minority attendance to 35%, it rose to 43% of a smaller total student body. A new high school, Springfield Gardens opened south of Andrew Jackson in 1965, and at the same time zoning and assignment changes were made in the expectation that Jackson would lose 1262 students of whom 65% were expected to be minority students. The changes, and their expected effect were these: Other Minority Zoned to Francis Lewis 38 435 Zoned to Springfield Gardens 580 381 618 816 To be received from Jamaica 103 Addt'l from Jamaica 69 172 Net loss 446 816

 The expectation was disappointed. Enrollment for the school year 1965-1966 was 48.4% minority, 51.6% other. Andrew Jackson lost 391 whites from all grades from 1964 to 1965; Springfield Gardens opened with a 64.6% "other" student body, as compared with 81.6% "other" then registered in all Queens Academic High Schools.

 The opening of Springfield Gardens High School marked the last act in a struggle over the siting of a school that would relieve overcrowding in the east Queens academic high schools. Two schools were planned, one became Springfield Gardens and the other, Benjamin Cardozo. Selection of the site rested not with the Board of Education but with the Site Selection Board established under the City Charter. However, the Board was an important and informed participant in the site selection process and its concurrence was required. Two sites were under review: the site finally chosen, and the "Hollis Triangle" site. The later site, a ten acre irregular plot northwest of Jackson and north of the Long Island Railroad line at 199th Street was visualized as so centrally located in relation to Jamaica, van Buren and Jackson High Schools that it would ideally relieve overcrowding in those schools. The Springfield Gardens site, a fifteen acre plot, it was argued by those interested in Jackson, would draw from Jackson a good part of its "other" constituency without adequately compensating by drawing minority students from its zone. Selection of the Hollis Triangle was urged by certain of the local civic groups and was favored by the acting associate superintendent in the high school division, apparently on the assumption that no second new school would be built. Unquestionably ethnic balance considerations were in the debate over the selection and appeared clearly to weigh on the side of choosing the Hollis Triangle site. The final decision in favor of the present Springfield Gardens site was balanced with the expectation that a second school would be built in the northeast area, as Benjamin Cardozo later was. Those who had favored the Hollis Triangle site were convinced that a new school at the Springfield Gardens site would worsen the chance of maintaining or improving the ethnic balance at Jackson. The site was selected, finally, only after hearings at which strong support for location of the school at the Springfield Gardens site was expressed. The distribution of the existing high schools might be thought to have dictated the location particularly since much of the three southeastern communities, Springfield Gardens, Laurelton and Rosedale, was relatively new and growing in population. The Hollis Triangle was near the railroad right of way, historically susceptible to swift decay, and was in what real estate men characterize as a "soft neighborhood". The Health District birth data (Exhibits AA, maps E-4 to E-7) support the conclusion that at the time of decision experience counseled that the relative effect on the imbalance in Jackson of the two locations was a matter of speculation and not of assurance.

 The siting of the high school at Springfield Gardens was based on considerations of cost, physical superiority of the site, and area need. The possible if not probable effect of the siting on the integration of Jackson was brought to the attention of the Superintendent and it was considered, as was the expectation that another high school would be established in the northeast, and that Springfield Gardens and the rezoning that it would precipitate could be expected to affect the integration of Jackson favorably. The siting of Springfield Gardens was not intended to draw non-minority students from Jackson, or to make Jackson the St. Albans and Cambria heights school primarily and isolate it from the neighborhoods with high ratios of non-minority students.

 In 1966 an open admissions program offered to students in three areas in the Jackson zone assignment to one of eight other high schools; the feeder schools affected were J.H.S. 8, J.H.S. 59, and J.H.S. 142; the students were allowed to list four of the schools in order of their preference. Children in the part of the open admissions area that was within one half mile of Jackson were allowed to list Jackson as a choice. The Francis Lewis "enclave" was continued, and 59 additional pupils were assigned to Francis Lewis.

 The opening of Benjamin Cardozo High School in September 1967 occasioned substantial rezoning of the Queens high schools, including Andrew Jackson. Zoning children from north of the line of the Long Island railroad had earlier involved transportation problems that were ameliorated when the Q-77 bus route was established. By December 1966 a complex rezoning scheme had been devised, and it was thought within the Board administration that it would substantially alleviate, even reverse, the imbalance at Jackson in the 1967-1968 school year and the following years. Before the plan could be executed an appeal to the State Commissioner of Education for an order to compel the Board to rezone the Queens attendance zones to relieve the racial imbalance at Jackson resulted in an order of February 9, 1967 (Matter of Gray, 1967, 6 Educ. Dept. Rep. 92) directing the Board to submit by May 1, 1967, a plan "for substantially reducing the degree of racial imbalance at . . . Jackson . . . to become effective with the opening of school in September, 1967." Commissioner Allen said:

"There is some indication in the record that measures already taken by the respondents may have decreased the amount of increase in Negro pupils at Andrew Jackson High School. A serious situation of racial imbalance certainly must be deemed to exist, however, where a school has a percentage of Negro pupils three times that of the average for the county and where this condition has been allowed to become aggravated over a period of 6 years without adequate counter measures being taken."

 The Superintendent of Schools of the Board sent a report to the Commissioner which included a revised attendance scheme for Jackson and informed the Commissioner that the Board had retained Nelson Associates to make a study and recommendations for rezoning the Queens schools. The scheme proposed for September 1967 did not differ greatly from the plan developed in the previous December: portions of the Martin van Buren and Jamaica High School zones were transferred to the Jackson zone and a Cardozo enclave was established in a part of the Jackson zone that contained a very high ratio of minority students; it was anticipated that 150 students (52 of them mandated) would enroll at Cardozo and that 205 students from the predominately "other" van Buren and Jamaica segments would be enrolled at Jackson. Commissioner Allen, by order of May 22, 1967, accepted the "preliminary report" as a "first step toward an ultimate solution for the most complex problems here involved." He said (Matter of Gray, 1967, 6 Educ. Dept. Rep. 143 at 144)

"The report indicates that respondent board of education is continuing its planning in the direction of major rezoning of all high schools in the Borough of Queens. In this connection said respondent has retained the services of a firm of consultants for the purpose of further studying ways to effect such a solution. The report of this consultant firm will be due later this summer.
"It is expected that after the receipt of said report, the respondent board of education will make a further report to me as to its immediate and long-range plans in the matter."

 The Commissioner's order retained jurisdiction of the matter. (To anticipate, there were no further proceedings in Matter of Gray as such, and a November 27, 1967, order in effect permitted pretermission of the plan, 7 Educ. Dept. Rep. 90-91.) The plan had included the establishment of an expanded Music and Art program at Jackson in the hope that it would attract a higher percentage of "others". Had the plan succeeded in its entirety, Jackson would have been 50% "other".

 The plan was frustrated. A three week teachers' strike and stays granted in proceedings to enjoin the plan instituted by parents of children who were to be zoned into Jackson put a stop to its effectuation.

 The Nelson Associates report (Exhibit 32) recommended alternatives for implementation in September 1968. It is impressively thorough and workmanlike. The plan alternatives were (1) a school neighborhood plan, with extensive enclaving, (2) a plan under which Jackson would have become a mathematics and science special school (generally comparable to the established special schools, Brooklyn Techn, Bronx High School of Science, Music and Arts, and Stuyvesant), (3) a "linear" zoning plan, without enclaves, (4) another type conversion of Jackson to a special school, accompanied by uniting Jamaica and Thomas A. Edison Vocational High School to form a comprehensive high school, and (5) an outline plan to have all the Queens high schools unzoned.

 The special school alternatives were quickly eliminated from consideration, although it was the preferred alternative of Nelson Associates. The high school division at the time was moving away from specialized high schools, which, on the whole tend not to reflect the City's or borough's ethnic composition. The unzoned alternative, although it had been used in some form in Baltimore, was not considered feasible for a sub-district as large as Queens, and it appeared to involve great expense, and posed transportation problems of unexplored extent.

 The linear rezoning plan envisaged elongated school zones each of which would link more heavily white with more heavily black neighborhoods in one student body. Without enclaves, each school zone would be a cross sectional neighborhood; distances of travel might be great, but not conspicuously greater than a school neighborhood plan with enclaves; the zones would cross the east-west line drawn by Hillside Avenue-Long Island Railroad that, to many, separated the northern part of East Queens with its predominantly white neighborhoods from the southern part with its markedly higher incidence of minority neighborhoods. The plan was sensed as radical, and on the map it looks startling, but Nelson Associates considered that the plan would not in fact involve moving white children into any school that was theretofore identifiably a minority school, except that Rosedale children would be assigned to Jackson.

 The school neighborhood plan was a bolder version of the kind of zoning techniques which the Board itself had already used. The zone of Jackson was extended northward, considerably beyond the northerly line proposed in 1967, beyond the Long Island Railroad and Grand Central Parkway to 73rd Avenue. Enclaves were established, and students in the enclaves were mandatorily assigned to schools with higher "others" ratios than Andrew Jackson's (Bowne, Forest Hills, Richmond Hill, van Buren, and Cardozo).

 The Board's choice of the "school neighborhood" over the "linear zone" plan took into account the expressions of community preference, some of which reflected determined resistance to zone revisions that would increase the ratio of minority students in the more northerly schools - for example van Buren - or would result in childrens' attending schools that were not those nearest their homes and in which there would be a higher ratio of minority students than there would have been but for the zone revision. The evidence does not support a conclusion that the expressions of community preference were more than one of many factors bearing on the decision, nor support a conclusion that the Board or its representatives were sympathetic with the views expressed. The purpose of the Board was and continued to be pursuit of the school neighborhood plan as a means of advancing integration in the Queens high schools, and the inference from the testimony is that it was recognized that avoidance of community resistance was a factor in making any rezoning plan succeed. On the projections of the Nelson report the school neighborhood plan was expected in 1970 (when its changes would have full effect) to show a better desegregation rating than would the linear zone plan. The Nelson report itself expressed a reasoned preference for the school neighborhood plan over the linear zone plan. The school neighborhood plan, adopted for September 1968 with some modifications (enclaves for Bayside, a modification of the border between Flushing and Bayside High Schools, and transferring an enclave from Flushing to Bayside High School), was expected to make Jackson 60% "other" and 40% minority. In 1968 the teachers, for the second year, struck the schools, a bitter strike that, in some areas (e.g., Brownsville-Ocean Hill) erupted in confusing racial controversy; the strike lasted until late November 1968. When the schools opened effectively the several hundred "other" students expected at Jackson from the new parts of the school zone north of the railroad (e.g., from Jamaica Estates and Queens Village) did not appear; only a few registered and attended. What had happened is not demonstrable. No doubt some children went to other Queens high schools using addresses of convenience (by no means an unprecedented expedient, apparently); some may have enrolled in private schools; some obtained variances of assignment in the spring, and went to other schools for one or another of the array of reasons that, when truthfully put forward, justify variances. Some certainly exercised proper choices of special schools, vocational high schools, or unzoned high schools; and some were transferred out after they were listed to Jackson. None of the explanations for the nonappearance of the expected "others" is satisfactory. The variance records had been destroyed in the ordinary course of record retention procedures, but it is not clear that the variance records would have mattered if the attendance estimates were made up from the List Reports, which exclude the students granted variances. The transfer data are inconclusive because not measured against the experience of other high schools of the same size, but they do show transfers out of Jackson to other public schools and to non-public schools, and transfers made because the student moved out of the City. The transfers, however, do not nearly account for the shortfall in expected "other" students in the fall of 1968. Simply, the expectation of the school neighborhood plan was disappointed. The evidence does not support the conclusion that maladministration of the variance and transfer controls was responsible for the failure of the expected students to appear, *fn2" nor was any yielding to the sit-in at Jamaica High School responsible for the loss of the students expected from what had been the Jamaica segment of the revised Jackson zone. In the end Jackson, instead of becoming 60% "other" and 40% minority became 46% "other" and 54% minority. The Music and Art program did operate to an extent as a magnet: the percentages enrolled in 1967 and 1968 were - 1967 1968 Music "Other" 55% 49% Minority 45 51 Art "Other" 59 55 Minority 41 45

 From 1963 to 1968 the percent of "others" at Jackson decreased 14.3%; for all Queens academic high schools it decreased 16.0%.

 The Nelson school neighborhood plan was intended to function over a period of time and it was continued in the next two school years, commencing in September 1969 and September 1970 without substantial change. The drop in "other" enrollment at Jackson accelerated rather than slowed. In 1969 the "others" were 38% and in 1970 29% of the school population. Attrition of "others" in Jackson from year to year was a contributing factor, e.g., an 11th year class with 342 "others" in 1968 produced a 12th year class with 221 "others". It was thought that enclave zoning was effective in placing minority students from the Jackson attendance area in the eight receiving schools all of which showed percentages of minorities in the school population much in excess of the percentage of minorities reported in the census data for the census tracts in the attendance areas of the eight schools. Exhibit J-2 shows the enclaves west of the enlarged Jackson zone and the size of its northerly extension. Hillcrest Comprehensive High School opened for the school year commencing in September 1971. The school was very near Jamaica High School. The zone carved out for Hillcrest was made up from the westerly part of the Jamaica zone and from the Forest Hills zone. The Jamaica zone was extended east to include the northwesterly part of the revised Jackson zone of 1968, the part, that is, north of Grand Central Parkway and west of 188th Street. (It was the Board's judgment that few "others" from that area attended Jackson.) The John Bowne enclave was reduced, the Forest Hills enclave eliminated, the Francis Lewis enclave altered in boundaries and Richmond Hill and Flushing enclaves were established. The projections made in March 1971 for the new zoning showed that it was anticipated that Jackson's utilization would be 100% and that the school would be 29.3% "other" and 70.7% minority in September 1972, and would in September 1972 be 77.8% minority and 22.2% "other". In the event the experience was the following: 1971 1972 "Other" 17.6% 11.5% "Minority " 82.4% 88.5

 Hillcrest, projected to open with 61.8% "other" in 1971 and to be 65.9% "other" in 1972, in fact opened with 59.4% "other", and in 1972 was 51.5% "other". No zoning changes were made in 1972; the Board's records noted persistence in the "pattern of internal attrition" of "other" students between the 11th and 12th year at Jackson; the pattern continued in the next two years, to the following extent: Numbers of "Others" in 11th and 12th year classes 11th 12th 1971 209 1972 101 156 1973 36 43 1974 19

 In 1973 Beach Channel High School (located on the Rockaway peninsula) opened and a "Choice of Admissions" zone was established by making students in the preexisting enclaves eligible to be assigned to any of eight designated receiving schools on the basis of pupil preference subject to the availability of space. A study of the operation of the Choice of Admission scheme, made early in October 1973, indicated that 1836 students were assigned to eight high schools (other than Jackson) for the year 1973-1974, about 200 more than the number assigned in the previous year from the enclaves. It was considered that the change in method affected the ethnicity ratios (as against the enclave zoning) minimally in four of the high schools and measurably in two of the high schools, Forest Hills and Newtown, each of which was reckoned to evince a decrease in "others" percentage (2.6% for Forest Hills, 3.8% for Newtown). The "Choice of Admissions" area was, as were the enclaves, located in the heavily minority areas which included St. Albans, Springfield Gardens, and Hollis, as well as South Jamaica, South Ozone Park, Baisley Park and Richmond Hill.

 The "Choice of Admissions" program continued into the next school year 1974-1975. The program placed 1,974 students in the eight receiving high schools. In 1975 the Andrew Jackson zone was added to the Choice of Admissions area. Two schools were added to the list of receiving schools, John Adams and Richmond Hill, and, the Jackson required attendance zone having been eliminated, Andrew Jackson was added as a receiving school for the Choice of Admissions area. Since the beginning of the September 1975 school year no child has been compulsorily assigned to Andrew Jackson. Under the program 3,598 students were assigned in 1975 and 3,338 were assigned in 1976.

 In June 1975 plaintiffs in the present case petitioned the Commissioner of Education to set aside the Board's establishment of the Andrew Jackson attendance area as a "choice of admissions" area for the 1975-1976 school year. In a decision of December 18, 1975, (Matter of The Parent Association of Andrew Jackson High School, 1975, 15 Educ. Dept. Rep. 235) the Commissioner reviewed the zoning background briefly and then said:

"It appears from the record that respondents continued their efforts to check the attrition of white students through such actions as the alteration of attendance zones, more careful monitoring of requests for variances, institution of special programs and additional foreign languages, provision of additional staff, retention of utilization rates at a level sufficient to retain the school on single session, and, ultimately, by the abandonment, in 1973, of the continued use of enclaves in favor of designation of the former enclave zone as a choice of admissions area.
"Today, Andrew Jackson High School is virtually an all-minority school. In 1974, approximately 2% of the children in attendance were white while the remainder were black or Hispanic. The zoning plan proposed by the chancellor, as modified by the city board, calls for the designation of the entire Andrew Jackson attendance zone as a choice of admissions area. Each student zoned into Jackson may elect to attend any one of eight integrated high schools elsewhere. While it is true that no students will be compelled to attend the segregated facility, it is equally apparent that any meaningful attempt to desegregate it (as opposed to providing an integrated experience for those who voluntarily choose to attend) has been abandoned."

 The Commissioner noted the Board's answer that demographic changes and other factors beyond the Board's control, accounted for the imbalance at Jackson, that the Board's continued efforts to prevent Jackson from becoming a racially isolated school had failed, that, except for Jackson and August Martin (also a "choice of admissions" school), all the other Queens high schools functioned as integrated high schools, and that the "choice of admissions" program was "the best practical way" to give all the pupils in the area "an opportunity to attend integrated schools, without at the same time weakening viable integration in the other high schools in the borough." The Commissioner rejected the Board approach. He said (15 Educ.Dept.Rep. at 238-239):

"The Board of Regents has consistently affirmed the importance of quality integrated education in the public schools, stressing the educational necessity for exposing a student on a personal basis to the cultural richness and individual diversity of his neighbors. In February 1975, the Board restated its conviction that 'equal opportunity for high quality education is the right of every pupil in the public schools of this State, regardless of race, color, or creed' and noted that 'The Regents believe that integrated schools are essential to assure that primary right to all pupils residing in racially diverse communities.' 'An integrated school,' the statement continued, 'is one in which the racial composition of the student body reflects the pupil population of the district without necessarily attempting to be proportionate to it, and in which the programs, facilities, and equipment are not racially identifiable.'
"Andrew Jackson High School is not an integrated school by any conceivable standard. The student population is almost exclusively black and Hispanic in a borough in which 59% of the public high school students were white during the 1974-1975 school year. Accepting the accuracy of respondents' figures, the chancellor's zoning plan for the Queens high schools for the 1975-76 school year will result in three high schools which will have a student population which is between 70 and 77% white, 14 high schools with white student populations varying between 44 and 67%, one school which will be only 35% white, August Martin High School which will have a 5% white student population, and Andrew Jackson High School which will have a projected white enrollment of 2%. Clearly, Andrew Jackson High School is a racially identifiable minority high school in a borough in which white students constitute in excess of 50% of the public high school student population. Under these circumstances, the New York City Board of Education should not have approved a plan which made no effort to bring to those students who would not affirmatively choose to attend high school elsewhere the educational and social benefits of a quality integrated educational experience.
"Freedom of choice or choice of admissions is rarely an effective technique for achieving integrated education unless it is used in conjunction with other integration measures. No such additional measures are proposed under the chancellor's plan. I must therefore find that the New York City Board of Education acted in a manner contrary to sound educational policy when it approved a plan which relegated Andrew Jackson High School to perpetual segregation, leaving an escape route only to those who are able to utilize it."

 The Commissioner ordered the Board to (15 Educ.Dept.Rep. at 240):

". . . submit to me, by no later than March 15, 1976, a plan for the racial integration of Andrew Jackson High School, to be effective September 1, 1976. Such plan shall have the effect of insuring that the racial composition of the student body of the school reflects the pupil population ...

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