The opinion of the court was delivered by: CURTIN
On June 29, 1978, I directed the parties to submit proposed findings to the court pursuant to Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S. Ct. 2766, 53 L. Ed. 2d 851 (1977), setting forth "the extent of the incremental effects resulting from the acts found in this court's April 30, 1976 decision to have been constitutional violations." Since the Board's submission in response to this order was inadequate, on September 5, 1978, I directed the Board to prepare a supplementary response. All papers have been submitted, and oral argument on the question was held on November 17, 1978. I am now prepared to rule on the question.
In determining whether the constitutional violations had a systemwide impact, I am not reconsidering questions of liability; these questions were determined in the April 30, 1976 liability decision, Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y.1976), reconsidered in the decision of March 1, 1977, Arthur v. Nyquist, 429 F. Supp. 206 (W.D.N.Y.1977), and affirmed by the Second Circuit on March 8, 1978, Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1978). Certiorari Was denied by the Supreme Court on October 3, 1978, Manch v. Arthur, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978). Nor am I addressing whether actions of the defendants taking place after the initial finding of liability constitute additional constitutional violations. Dayton only requires the court to decide whether the segregative acts, as already found by the court, had a sufficiently widespread impact on the school system to justify the imposition of a systemwide remedy.
Dayton does not require a finding that each and every school or student in the system was directly affected by the defendants' actions as a prerequisite to ordering a systemwide remedy.
The test is whether there has been a "systemwide impact." Thus, in Reed v. Rhodes, 455 F. Supp. 546 (N.D.Ohio 1978), the court found that over 200 separate instances of segregative acts affecting at least 60% Of the schools and all of the staff in the Cleveland system had a systemwide impact under Dayton.
Dayton reaffirmed the well-established equitable principle requiring court-imposed remedies to be tailored to the scope of the violation. If the defendants' acts have had only isolated effects on discrete portions of the school system, then the remedy must be designed to correct the isolated effects only. By the same token, if the incremental segregative effect of the violations is systemwide, the court must fashion a systemwide remedy. In either case, the remedy must be "designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' " Milliken v. Bradley, 433 U.S. 267, 280, 97 S. Ct. 2749, 2757, 53 L. Ed. 2d 745 (1977) (Milliken II ), Quoting Milliken v. Bradley, 418 U.S. 717, 746, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974) (Milliken I ).
The Buffalo public schools currently have in place a partial remedy, consisting of two components: QIE and magnet schools. Apart from deficiencies in these programs (see the court's order of June 29, 1978 and the discussion, Infra ), the present remedy leaves untouched many all-minority schools. In the context of this case, resolution of the Dayton question determines whether additional desegregation is required in order to complete the remedy begun in 1976.
I have reviewed the record in this case, including the stipulation of facts, the liability decision, the Second Circuit's decision, and the legal briefs submitted on this question to the court. For the reasons stated below, I find that the impact of the constitutional violations was systemwide under the standards announced in Dayton.
The liability decision of April 30, 1976 and the reconsideration decision of March 1, 1977 recite in great detail the evidence of deliberate segregation relied upon by the court in finding constitutional violations, and it would serve no useful purpose to reiterate those findings here. As the Second Circuit stated in affirming these findings, "(w)e are unable to imagine a set of facts, short of a public admission of wrongdoing, which would be more suggestive of intentional discrimination." 573 F.2d at 145.
Unlike the circumstances in Dayton, this is not a case which involved only a few isolated acts of discrimination or only a few schools or areas in the City. The majority of schools in the Buffalo system were directly affected by the defendants' acts and policies. Even those schools which were not specifically discussed in the liability decision were indirectly affected by the broad-ranging and long-standing discriminatory policies of the defendants, because these policies contributed to the public's tendency to identify certain schools and certain neighborhoods as minority and other schools and neighborhoods as non-minority. In addition, many of the discriminatory policies, such as staff recruiting and assignment, were necessarily applied on a systemwide basis. Even those which were confined to a limited number of schools had indirect effects on other schools because changes in the composition in part of the system necessarily affected the rest of the system.
In light of the Second Circuit's decision, the court's extensive findings in prior decisions, and the position taken by the Board at oral argument, the court need not set forth in detail the reasons for the court's findings of systemwide impact. For purposes of completeness, however, a brief summary follows.
The first constitutional violation discussed in the April 30, 1976 liability decision involved East High School. By redistricting the attendance zone on a number of occasions beginning as early as 1954, the defendants increased and maintained racial segregation at East. 415 F. Supp. at 922-24. In addition, by permitting large numbers of white students to transfer out of the East district to take foreign languages only offered at other high schools, the defendants encouraged concentrations of minorities in one out of seven academic high schools. Id. at 926-30. This manipulation of the racial composition at East had an impact on the predominately majority high schools by preserving and in some cases increasing their majority enrollments.
A second major violation involved transfer policies. Over a period of years, the Board permitted numerous transfers of white students out of predominately black schools for specious or blatantly discriminatory reasons. In addition, certain principals unofficially allowed white students to transfer out of black school districts. The opinion cites transfers involving schools 4, 16, 30, 34, and 38 merely to illustrate the impact that the policy had on particular schools, but the transfers occurred throughout the system. The combined effect of official and unofficial transfers, including language transfers at East, was an annual total of 2,000-4,000 white students avoiding their neighborhood schools and thereby contributing to segregation. To make matters worse, transfers in the primary grades had potentially double and triple segregative ramifications because of feeder patterns to junior and senior high schools. Id. at 936-39.
Another policy which was found to be a constitutional violation was the use of optional attendance zones, which enabled white students to avoid schools they normally would have attended in favor of predominantly white schools. The liability decision specifically singles out five optional districts involving at least ten schools. But the policy was also applied throughout the system because all of the district lines were optional areas. Id. at 939-41. The Board's transfer and optional areas policies "were substantial contributing factors to the segregation at all levels of the BPSS, and . . . this segregative effect was clearly foreseeable by the Board." Id. at 941.
The districting of Woodlawn Junior High School was another constitutional violation, which the court found was done so as to guarantee that Woodlawn would open as an all-minority school. This not only affected students in the Woodlawn district but also had an impact on certain majority students who were able to avoid Woodlawn by virtue of its districting, optional zones, and transfers. Id. at 930-36.
Another constitutional violation involved discriminatory admission policies in four of the City's six vocational-technical high schools. Id. at 941-43. Recognizing that "the Board does not act in a vacuum, and the actions it takes with respect to admissions at one vocational school will necessarily be felt at another," the court found that these policies "caused segregated conditions to exist at a significant number" of the vocational schools. Id. at 943.
An additional violation involved discrimination by the Board against minorities in the hiring and assignment of school staff, both instructional and noninstructional. Id. at 943-48. This finding clearly has systemwide implications because the policies affected the minority staff composition at every public school in Buffalo.
Finally, constitutional violations were found in the general pattern of obstruction which characterized the actions of the Board and the Common Council over a number of years. These actions also had a systemwide impact because they pertained not just to individual schools but to the school system as a whole.
In summary, the record demonstrates the systemwide impact of the violations. Specific violations directly affected virtually all of the academic and vocational high schools, the junior high and middle schools, a substantial number of the elementary schools, and all of the school staff. A number of the violations concerned systemwide policies. Those which did not indirectly affected many of the other schools in the system by causing certain schools to be identified as black and others as white.
Although the defendants' supplemental papers argue that the impact of the violations was not systemwide, at oral argument defendants' counsel took the position that the question of systemwide impact had been resolved by the Second Circuit and that the court should now develop a final remedy order. Defendants' counsel stated:
We have said that we believe that the Second Circuit indeed has said to this Court that you are not going to have difficulty finding systemwide impact and we have already appealed to the United States Supreme Court, or requested a writ which has been denied, and so it serves no purpose for anyone here to belabor the kinds of things that plaintiffs went into for an hour or so, as we see it.
Transcript of Nov. 17, 1978, at 71. See also pp. 56-59. It is clear that the defendants do not seriously challenge the systemwide impact of the violations in this case. The court therefore has not undertaken a more detailed analysis of the Dayton question.
Since the impact of the constitutional violations was systemwide, a systemwide remedy must be fashioned which to the greatest extent possible restores the victims of the discrimination to the position they would have had in the absence of such violations. Milliken I, 418 U.S. 717 at 746, 94 S. Ct. 3112, 41 L. Ed 2d 1069, Supra. The ramifications of this finding for the Buffalo schools are the subject of the next section of this decision.
II. ADDITIONAL DESEGREGATION: ELEMENTARY SCHOOLS
The remedy currently in place is the "Buffalo Plan" (Ex. 181), filed by the defendants on January 5, 1977 and adopted by the court on May 4, 1977 after extensive court hearings. The central features of the plan were the establishment of the magnet schools and the expansion of the QIE program. Although it made substantial changes in the composition of the schools, the Buffalo Plan is not a systemwide remedy because it leaves intact at least fifteen all-minority schools.
I find that additional steps must be taken in order to desegregate these fifteen schools to the greatest extent practicable. The legal principles and other considerations which lead me to this conclusion are set forth below.
Throughout the remedy phase of this lawsuit, the court has stated that the Buffalo Plan was incomplete and has urged the Board to reduce the number of all-minority schools.
The defendants maintain that the amount of desegregation already achieved is sufficient, given the practicalities involved, to pass constitutional muster. In support of their position, they cite enrollment statistics showing a significant decline in the number of racially isolated elementary students in the BPSS since implementation of the remedy. In 1975-76, 26,173 elementary students attended racially isolated schools. Two years later, in 1977-78, this number by their calculations dropped to 7,845 students. (Ex. 276 at 53.) In 1978-79, it dropped to 6,530 students. (Ex. 356.) They therefore argue that the Buffalo Plan has in large degree succeeded and that further planning should be left to the Board.
But these statistics fail to reveal that the reduction in students attending one-race schools is largely due to the elimination of all-majority schools. According to the plaintiffs' figures, in 1975-76, 10,131 minority students attended all-minority elementary schools. In 1977-78, this number dropped to 8,500 minority students. (Ex. 279 at 5-6.) This figure is larger than defendants' figures because it includes several all-minority schools deleted by defendants.
Even in the desegregated schools, a large number of students remain in segregated grades or classes. (Ex. 279 at 6-8). Fifteen elementary schools remain segregated with no showing by the Board on a school-by-school basis that it would be impracticable to desegregate them.
In Swann v. Board of Education, 402 U.S. 1, 26, 91 S. Ct. 1267, 1281, 28 L. Ed. 2d 554 (1971), the Supreme Court stated that a remedial plan "should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools." Although the Court refused to adopt a Per se rule against one-race schools, it did establish a presumption against schools substantially disproportionate in their racial composition and directed school authorities to justify the continued existence of any one-race schools in any remedial plan. The Court stated:
Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.
Contrary to the Board's suggestion, under Swann it is not enough simply to eliminate identifiably white schools. For instance, in Bradley v. Milliken, 540 F.2d 229, 236-39 (6th Cir. 1976), Aff'd on other grounds, 433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977), the district court's remedy order left untouched three of the eight regions in the Detroit school system, which contained approximately 83,000 students, over 90% Of whom were black. The district court found that desegregation of the all-white schools was sufficient under the circumstances. The Sixth Circuit reversed because the lower court "did not subject the exclusion of these three regions to the close scrutiny required by Swann " but merely concluded that any attempt to desegregate these regions would be futile in light of the fact that the Detroit schools were over 75% Minority. 540 F.2d at 238. The court stated:
This perfunctory treatment of the inner city falls far short of the "root and branch" requirements of Green v. County School Board, 391 U.S. 430, 437-38, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), and the "all-out desegregation" requirements of Keyes v. School District, 413 U.S. 189, 214, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973).
One-race schools can be retained under Swann only if the Board can show that physical barriers, insuperable distances, demographic obstacles or other practicalities prevent further desegregation and that the present remedy represents the maximum desegregation practically achievable. United States v. DeSoto Parish School Board, 574 F.2d 804, 815 (5th Cir. 1978); Bradley v. Milliken, 540 F.2d at 237; Allen v. Board of Public Instruction, 432 F.2d 362, 367 (5th Cir. 1970). It is not enough to generally allege these barriers. The board assumes a heavy burden of justifying in detail the retention of any one-race schools. Thus, in Milliken v. Bradley, supra, the court recognized that some one-race schools were unavoidable because of the overwhelming number (75%) of black students in Detroit but nevertheless found that the district court did not provide adequate justification for excluding the three regions.
In United States v. DeSoto Parish School Board, Supra, the Fifth Circuit rejected a desegregation plan which left four of the five black schools 100% Black because the board had not shown that no reasonable alternatives existed. In that case, there was no entrenched residential segregation and several of the all-black schools were located in close proximity to the all-white schools. In United States v. Seminole County School District, 553 F.2d 992 (5th Cir. 1977), the court refused to authorize the continued existence of only one all-black school after the five remaining all-black schools had been successfully integrated. In Ellis v. Board of Public Instruction, 465 F.2d 878, 880 (5th Cir. 1972), Cert. denied, 410 U.S. 966, 93 S. Ct. 1438, 35 L. Ed. 2d 700 (1973), the court found that three one-race schools in Orange County, Florida had to be desegregated even though integration had already taken place in the rest of a large system, involving 98 separate schools and over 85,000 students. In each of these cases, the board had failed to show that practical ...