Appeal from an order of the District Court for the Eastern District of New York (John F. Dooling, Judge) ordering the defendants, New York City educational officials, to submit a plan to desegregate Andrew Jackson High School and enjoining them from continuing to operate a Controlled Rate of Change Plan governing the assignment of students in the Andrew Jackson High School attendance zone. The Court of Appeals noted that the District Court found that the segregation of Andrew Jackson High School was not the result of de jure action by the defendants but was de facto segregation, and, accordingly, reversed the order to desegregate the school. The Court of Appeals also held that the order for the injunction against continued operation of the Controlled Rate of Change Plan should be remanded to the District Court for further findings on the specific details of the Plan with the recognition that the purpose of the Plan is within constitutional bounds. The decision of the District Court not to join several new defendants was affirmed.
Before Waterman, Gurfein and Van Graafeiland, Circuit Judges.
This class action for injunctive relief and a declaratory judgment under Title 42 U.S.C. § 1981 and § 1983 and the laws of New York, was begun in June 1976 in the Eastern District of New York (Hon. John F. Dooling, Judge), on behalf of a number of students enrolled in Andrew Jackson High School ("Jackson") by parents of the students. The defendants were the State Commissioner of Education, the City Chancellor, two school officials and the members of the Board of Education of the City of New York. Plaintiffs sought determination that the actions and inactions of the defendants had created a De jure segregated facility at Andrew Jackson High School.
Plaintiffs have alleged that the policies and practices of the defendants-appellants "were taken with the knowledge that the inevitable effect and the foreseeable consequence of the same . . . would result in Andrew Jackson High School becoming a segregated minority school. . . ." The plaintiffs seek to enjoin the defendants from "continuing to maintain and perpetuate Andrew Jackson High School as a racially segregated facility," to require the Commissioner to reinstate a certain desegregation order he had made on December 18, 1975 (discussed below), and to require the defendants "to promulgate and implement a meaningful plan for the purposes of desegregating Andrew Jackson High School."
After the action was filed, the Commissioner approved a school assignment plan on July 1, 1976 (the 1976 Controlled Rate of Change Plan), which was considered in the trial below and invalidated as unconstitutional. Parent Association of Andrew Jackson School etc., et al. v. Ambach, Commissioner of Education of the State of New York, et al., 451 F. Supp. 1056 (E.D.N.Y.1978).
At trial two central issues were involved: (1) whether the concededly all non-white condition of Jackson was the result of De jure action by the State (however defined); and (2) whether, assuming that the current minority character of Jackson was simply a De facto result of conditions beyond the control of the educational authorities, the 1976 Plan the Controlled Rate of Change Plan nevertheless violated the equal protection clause of the Fourteenth Amendment by creating a "dual" school system.
After a lengthy trial, the District Court found that there "is no evidence that the Board has sought to segregate minorities in identifiably minority schools or has taken any action for the purpose of segregating minority students." 451 F. Supp. at 1077.
Having found in his painstaking and meticulous review of the evidence that there had been no De jure segregation, the judge addressed the 1976 Plan. He held it unconstitutional as a denial of equal protection because it limited the admission choices of minority students, with the asserted goal of promoting "the education of the largest possible number of children in schools in which the majority of the students are white for the longest possible time." 451 F. Supp. at 1080. In its finding, the court recognized, nevertheless, that the Plan would actually cause "a substantial Reduction of the segregative impact of demographic change." 451 F. Supp. at 1080 (emphasis added).
The District Court ordered the 1976 Plan to be set aside and ordered the City School District to present a plan to the Commissioner for the desegregation of Jackson substantially in accordance with the earlier December 1975 order of the Commissioner which had mandated the transfer of white students into Jackson.
Thus, despite the finding that no De jure state action had caused the segregation of Jackson, which occurred before the Rate of Change Plan was adopted, the relief granted was not only to invalidate the 1976 Plan but to order affirmative action to remedy the segregated condition of Jackson as well.
From this order both defendant Gordon Ambach, Commissioner of Education of the State of New York, and the various city-defendants appeal, primarily on the grounds that: (1) the 1976 Plan was a Voluntarily undertaken affirmative action program that is accordingly entitled to much more circumspect treatment by the courts than if it had been ordered to remedy existing De jure segregation; (2) having failed to find De jure segregation as to Jackson High School, the District Court lacked the authority to fashion a remedy for the existent racial imbalance at that school or to impose on the defendants a duty to alleviate the racial imbalance; and (3) the remedy ordered appears to exceed that necessary to eliminate any incremental segregative effect of any official acts or omissions. Thus, the appellants contend that the judge violated the principles set forth in Dayton Board of Education v. Brinkman, 433 U.S. 406, 420, 97 S. Ct. 2766, 53 L. Ed. 2d 851 (1977); See Austin Independent School District v. United States, 429 U.S. 990, 97 S. Ct. 517, 50 L. Ed. 2d 603 (1976) (order), in which the Supreme Court held that a federal court is required to tailor the scope of a desegregation remedy to fit the nature and extent of the constitutional violations, and must determine, therefore, how much incremental segregative effect, if any, the violations had upon the racial distribution of the school population.
The plaintiffs below, although they do not challenge the ultimate result, filed a notice of cross-appeal in which they argue that the court failed to make certain findings of fact and to apply the appropriate standard in analyzing the evidence as set forth in the cases of Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), cert. denied, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978), and Hart v. Community School Board # 21, 512 F.2d 37 (2d Cir. 1975). Indeed, the appellees appear to agree with the appellants that there is a disparity between the District Court's findings of fact (that the all-minority condition of Jackson was not caused by purposeful state action) and the compulsory desegregation remedy which it decreed. Appellees submit, however, that the court below erroneously failed to find certain facts supported by the record, which would have served "as a predicate for the conclusion which was ultimately reached."
The plaintiffs also appeal the failure of the court (1) to make findings under Title VI (violation of which the amended complaint alleges); and (2) to add Nassau County school districts and officials as parties-defendant so that an interdistrict remedy might be formulated.
We have continued a stay of the District Court's decree pending our decision.
Andrew Jackson High School is located in southeastern Queens, about one mile from Nassau County. The area is known as Cambria Heights and is populated predominantly by blacks. In 1937, when Andrew Jackson was opened, the population of Cambria Heights, as well as the rest of the Borough of Queens, was virtually all white. After World War II, the Borough of Queens, and the rest of New York City, underwent extensive population changes as a result of the mass exodus of the middle class, which was mostly white, from the city to the adjacent suburbs. In 1957 the academic high schools in Queens had a student population which was 94.2% "other" (meaning "white", in the parlance of the statisticians). By 1975 the percentage of whites had dropped to 55.4%. By the end of 1977 it was about 48.6%. Assuming a continuation of the present demographic trend, which has shown no sign of abating, the Queens academic high schools will, in the school year 1981-82, have a student population which will be only 36.4% White.*fn1
Andrew Jackson is, and has been for several years, virtually an all-minorities high school.*fn2 In slightly over twenty years, the percentage of white students has decreased from over 80% To under 2% Reflecting though to an even greater degree the overall decline in the white student population of the Borough of Queens academic high schools.
Since 1963 school authorities have taken steps to stem Jackson's acceleration toward an exclusively minority student body. Until 1967 the thrust of this effort was the creation of options for students from heavily minority populated junior high schools "feeding" Jackson and from minority areas in Jackson's attendance zone to attend other Queens high schools. When this "opt-out" method failed to stabilize the racial balance at Jackson, more aggressive plans were developed in 1967 and 1968 in the latter instance, at the behest of the State. The 1968 Plan, one of several proposed by a specialist consulting firm retained for that purpose, involved extension of the Jackson attendance zone into a white residential area north of the former zone, as well as the mandatory assignment to other Queens high schools of students from enclaves in minority areas in the Jackson zone. The hopes for that plan were dashed by the bitter 1968 teachers' strike, which closed the schools for over two months and exacerbated racial tensions. When schools finally did open, the large number of new white students expected at Jackson failed to appear.
The 1968 Plan was continued in force until 1973, although there were some zoning and enclave revisions in 1971 in response to the opening of Hillcrest Comprehensive High School. Attrition of white students continued, however, paralleling, but to a greater degree, changes in the composition of other high schools in Queens. In 1973 the enclave system was replaced by a new "Choice of Admissions" scheme, under which children in the former minority-populated enclaves were to be given the opportunity to attend any one of eight possible receiving schools other than Jackson. In 1975, the Board of Education expanded this free choice scheme by transforming the entire Jackson zone into a choice of admissions area; thenceforth, no student within the zone was to be mandatorily assigned to Jackson. Rather, two additional schools and Jackson itself were added to the list of receiving schools making a total of eleven schools from which all Jackson area residents were free to select.
The adoption of the full Choice of Admissions Plan marked the failure of all previous plans to preserve integration at Jackson. At the time the plan was inaugurated, the white students at Jackson comprised only 2% Of the student body.
In June 1975, the plaintiffs in this case petitioned the State Commissioner of Education to set aside the full Choice of Admissions Plan. In his first decision, rendered in December of 1975, the Commissioner determined that, despite the Board of Education's efforts to stem the outflow of white students from Jackson, Jackson had become an all-minority school. Noting that it is State educational policy to promote integration, the Commissioner found that the Board had been unwarranted in effectively abandoning Jackson to "perpetual segregation." Matter of Parent Ass'n of Andrew Jackson, 15 Educ.Dept.Rep. 235, 239 (1975). He ordered submission of a program designed to assure that the racial composition of Jackson "reflects" that of the student body of the Borough of Queens. Id. at 240.
This decision rested upon the assumption, however, that white students made up over 50% Of the student population of Queens. The City Board petitioned for a rehearing, presenting data showing that the student population of the borough was over 50% Minority and that this minority percentage was increasing. A revised opinion by the Commissioner, issued in May 1976, relied upon this demographic information in reversing the previous decision. The Commissioner concluded that compulsory assignment of white students to Jackson would ultimately "impair . . . racial integration of the high schools of the borough as a whole." Matter of Parent Ass'n of Andrew Jackson, 15 Educ.Dept.Rep. 483, 485 (1976).
On July 1, 1976, the Commissioner, accordingly, accepted a revised version of the Board's 1975 choice of admissions plan for Jackson the Rate of Change Plan and ordered its implementation, and It is this order which Judge Dooling found to be violative of equal protection guarantees.
The Commissioner's July 1, 1976 Order
The Commissioner's May 1976 decision accepted the Board's basic premise that "any significant revision of attendance zones or reassignment of students to achieve greater integration at Andrew Jackson High School will adversely affect racial integration in other high schools in the borough which presently are integrated." 15 Educ.Dept.Rep. at 484.
The Controlled Rate of Change Plan of July 1976 is somewhat complex, but essentially provides as follows:
Black and Hispanic students residing within the Jackson attendance zone are given the option to attend Any New York City high school (other than special admissions high schools under Education Law § 2590-g(12)) "in which the percentage of "white students' exceeds 50% Or the borough's white percentage (whichever is Higher ), provided the school's utilization is below 125% Or it is already a receiving school." 451 F. Supp. at 1072 (emphasis in original).
Conversely, white students in the Jackson attendance zone have the option to attend any city high school (other than special admissions schools) in which the percentage of white students is lower than the borough's white percentage Or is less than 50% Of the school population, whichever is lower. 451 F. Supp. at 1072.
Minority students may choose receiving schools to the extent that admission of such students, coupled with admission of minority group students from other integration programs, or through demographic changes in the attendance area servicing the receiving school, will not (a) decrease the receiving school's white-minority ethnic balance by 4% Or more in any one school year, or (b) produce a change in that balance in any one year which exceeds "one-fourth of the difference between the school's current white enrollment and a 50% White enrollment," whichever is less. 451 F. Supp. at 1084 (Annex A).*fn3
The power of the federal courts to compel desegregation in state school systems is circumscribed. As the Supreme Court has emphasized repeatedly, our authority to order remedial action depends upon a determination that the state, by law (De jure ), has discriminated on the basis of race or color in violation of federal law. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 28, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); Pasadena City Board of Education v. Spangler, 427 U.S. 424, 434-35, 96 S. Ct. 2697, 49 L. Ed. 2d 599 (1976); Dayton Board of Education v. Brinkman, supra, 433 U.S. at 419-20, 97 S. Ct. 2766. Since Keyes v. School District, it has been apparent that De facto segregation alone cannot support a court order mandating affirmative action, and we are, of course, bound by this limitation. See Keyes v. School Dist. No. 1, 413 U.S. 189, 208-09, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973); Brinkman, supra, 433 U.S. at 420, 97 S. Ct. 2766; Hart v. Community Sch. Bd., supra, 512 F.2d at 48-50; Cf. Washington v. Davis, 426 U.S. 229, 239-40, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (employment test case; dictum about school desegregation).
The findings of the District Judge with respect to Jackson are clear enough. He found that none of the acts of the City School Board was either intentionally discriminatory or, if disguised as neutral, had the underlying purpose to effect segregation. These findings of fact, after a full trial, and a most careful review of the evidence by the experienced trial judge, can be set aside by this court only if "clearly erroneous." F.R.Civ.P. 52(a); See Brinkman, ...