The opinion of the court was delivered by: SIFTON
MEMORANDUM DECISION AND ORDER
In this action brought pursuant to 42 U.S.C. § 1983 and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq. plaintiffs allege that defendant school officials have engaged in racially discriminatory and segregative policies and practices in Community School District # 24 ("District 24" or "the District") in the borough of Queens. Plaintiffs allege that District 24 as a whole constitutes a dual school system in which, broadly speaking, schools in the southern half of the District are predominantly "white" while schools in the northern half of the District are predominantly minority and that defendant school officials are legally responsible for creating and maintaining that dual school system. The main focus of the trial of this action, however, has been on the situation at the now predominantly minority Intermediate School 61 ("I.S. 61") in the northeastern part of the District and on defendants' actions and inaction in responding to the increasing minority composition and severe over-utilization of that school. Specifically, plaintiffs allege that the creation in September 1976 and the continued operation to this date of two "temporary" predominantly minority annexes to I.S. 61 in parts of two school buildings in Community School District # 25 ("District 25") in Queens,
to which the sixth-grade students of I.S. 61 are sent, unconstitutionally discriminates against the predominantly minority I.S. 61 students and has unconstitutionally created and maintained racial segregation in the District.
Plaintiffs are minor children, appearing by their respective parents and next friends who, at the time of the filing of the complaint, attended school at either the main building of I.S. 61 in District 24 or at the I.S. 61 annexes in District 25, and the Parent Association of I.S. 61. The action was designated as a class action on behalf of all students attending I.S. 61 or who are eligible to do so in the future and who were or will be subject to the policies and practices complained of in this action.
The defendants are individual members of the Community School Board of District 24, the Superintendent of District 24, and the Chancellor of the City School District of the City of New York, presently Frank J. Macchiarola. All of the defendants are named in their official capacities so that where there has been a change in the occupant of a particular office or position since the time of the filing of the complaint, this opinion treats both the past and present occupants of that office or position as parties to this litigation.
Before proceeding with findings of fact and conclusions of law made on the basis of evidence introduced at the trial of this action, this opinion will first address various post-trial motions made by plaintiffs to the extent that those motions do not come up for consideration elsewhere in the course of the opinion.
Plaintiffs' motions to join additional party defendants are denied. Plaintiffs' apparent concern that the presence of those additional defendants in the case is necessary to insure the court's ability to effect an appropriate remedy appears unfounded in view of the presence as a party defendant in this case of the Chancellor. That officer, as the official with ultimate responsibility for the operation of the City school system, as well as for other reasons indicated in the course of the subsequent findings, would appear to have ample authority to insure the effectuation of whatever remedy might be appropriate. Should that appraisal of the situation regarding the effectuation of an appropriate remedy subsequently appear erroneous, the motion to join the additional party defendants on that basis may be renewed.
Plaintiffs have also made various post-trial motions to supplement the record. Those motions are disposed of as follows: Plaintiffs' motion for leave to supplement the record with items identified as Plaintiffs' Exhibits 22, 122, 123, 124, 125, 125(a) and 126 is granted. Exhibits 22, 125 and 125(a) are considered solely as the type of general background information which a court properly may consider in a case presenting the sort of complex and difficult issues both of fact and of law such as are presented by this case. Plaintiffs' motion to supplement the record with depositions of various party defendants not called as witnesses at trial is, on the other hand, denied. All indications are that the party defendants, whose depositions plaintiffs now seek to introduce into evidence were available and could have been called as witnesses at the time of trial. If the court were to grant plaintiffs' motion to supplement the record with those parties' depositions, it would feel compelled to reopen the trial to allow defendants' counsel to call those individuals as witnesses to rebut any negative inferences which those depositions might yield with respect to the defendants' position in this case. After reviewing the evidence already in the record and perceiving no difficulty in making findings both of fact and of law without resorting to the additional deposition testimony now proffered by plaintiffs, and in view of the fact that it would not appear to be in plaintiffs' own best interests to further prolong the instant proceedings prior to a determination of the underlying issues of legal responsibility, further protraction of the proceedings appears inappropriate. Accordingly, plaintiffs' motion to supplement the record with the depositions of party defendants not called as witnesses at trial is denied.
With regard to plaintiffs' post-trial motion for reconsideration of certain evidentiary rulings made at trial, that motion is denied for the reasons stated previously on the record. The scope of this action is broad enough and the issues sufficiently complex without considering evidence regarding the actions of school authorities elsewhere in the City school district not bearing directly on the situation in District 24 which is at the heart of the instant lawsuit. For further comments with specific regard to the evidence concerning the use of the annex policy in District 29, see note 24 infra.
With respect to so much of plaintiffs' post-trial motion dated May 14, 1979, as seeks to have this court consider evidence relating to the city-wide integration policy of the City school district of New York, that motion is denied as beyond the issues raised by the pleadings and by the evidence introduced at trial. Contrary to plaintiffs' assertions, this court finds the issues presented by pleadings and proof in the instant case to be very different from the issues presented in Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir. 1979). To the extent that questions of city-wide integration policy may be involved in this action, they would appear to become relevant at the remedy stage and thus may be deferred to that stage for consideration as and if necessary. Accordingly, this court denies plaintiffs' post-trial motion insofar as it seeks (a) to admit into evidence in this case the testimony given by various persons in the Andrew Jackson trial, (b) to introduce further testimony "in light of the Andrew Jackson decision," from various individuals who already have testified in this action, (c) to introduce further testimony from various individuals whose writings plaintiffs have previously introduced into evidence and which this court has considered as general background information, and (d) to have this court "consider consolidation of this matter with the Andrew Jackson matter (for further proceedings)."
The further request in plaintiffs' post-trial motion dated May 14, 1979, for additional discovery of information regarding school reading levels is denied, in view of the late stage in the proceedings at which that request is being made, as unnecessary to a determination of this action. In addition, the court denies and defers to the remedy stage of these proceedings for further consideration as and if necessary the request in that same motion for further discovery on information relating to the general question of utilization in the schools of District 24 as a whole. Plaintiffs' request, also in the May 14, 1979, motion, that the court admit into evidence an attached letter from Steven B. Legum, Esq., one of the attorneys who represented defendants in this action, to plaintiffs' counsel containing certain information regarding the number of special education classes in various school facilities within District 24, is granted.
Plaintiffs' counsel's request in a letter to the court dated June 25, 1979, that a copy of a report prepared by Michael Rosen, Esq. be received in evidence, is denied in light of the objections to any such action communicated to this court by Mr. Rosen in a letter dated June 28, 1979. In any event, the contents of that report as described by plaintiffs' counsel not only in the June 25 letter, but also in a subsequent letter dated July 3, 1979, would have been considered by this court only as general background information and in that respect would appear to be cumulative of information contained in other background reports which this court has admitted into evidence.
Plaintiffs' motion filed September 14, 1979, to supplement the trial record with a letter to defendant Macchiarola dated August 24, 1979, from the Office of Civil Rights of the Department of Health, Education and Welfare is denied for the reasons set forth in the transcript of the trial for rejecting evidence concerning the underlying situation in Community School District # 29 to which that letter is addressed.
Plaintiffs' motion filed September 19, 1979, to supplement the trial record with a newspaper article from The New York Times dated September 15, 1979, relating to the attitude of residents of the Ridgewood-Glendale area of Queens towards minority persons is denied as an offer of hearsay of little value in resolving the issues presented by plaintiff's complaint.
With the various "household" matters disposed of, this opinion will turn to the substantive issues raised by this action.
A. Community School District 24
Community School District 24 is located in the northwestern part of Queens. To the west and southwest, District 24 borders on Brooklyn, specifically on the Bushwick area of that borough; to the north, the District borders on Community School District # 30 in Queens; to the east, the District borders on Community School Districts # 25 and # 28 in Queens; and to the southeast, the District borders on Community School District # 27 in Queens.
District 24 covers various neighborhoods or communities. In the north, moving from east to west, are the communities of Corona, East Elmhurst, Elmhurst and portions of the communities of Woodside and Long Island City. Moving to the south, one comes to the communities of Maspeth to the west, and Middle Village to the east. In the southern-most part of the District are the communities of Ridgewood to the west, and directly bordering on Brooklyn, and Glendale to the east.
Certain of the communities in District 24 have racially identifiable characteristics. In the extreme northeastern corner of the District, the eastern part of Corona has always been a minority residential area. Beginning in the mid-1960's, that minority area began spreading slowly westward into the other part of Corona, which thereafter became known as East Elmhurst, and into Elmhurst. Maspeth is and always has been a predominantly white residential community which, however, has experienced some increases in its minority population in recent years. Middle Village, Ridgewood, and Glendale are today, as they have been in the past, predominantly white residential communities.
B. Segregation in District 24
(1) Difference between Racial Composition of Middle Level Schools in Northern and Southern Parts of District
Altogether, there are five middle-level schools in District 24 three in the northern half of the District and two in the southern half of the District. There is a definite and marked contrast between the racial composition of the three schools in the northern half of the District and the two schools in the southern half of the District, the former all being predominantly minority, although to different degrees, and the latter being predominantly white or "other."
The three schools in the northern half of the District are I.S. 61
located in the northeastern Elmhurst-Corona area, Junior High School ("J") 125 located in the Woodside area and J 73 located at the northern edge of the Maspeth area. I.S. 61 has two annexes located in schools in District 25. As of 1978, I.S. 61 was 16% "other"
and 84% minority, and J 73 was 40% "other" and 60% minority. Figures for J 125 as of 1978 were not available, but the 1977 figures indicate that J 125 was 39% "other" and 61% minority at that time. A sizeable portion of the students attending J 125 reside in and come from nearby areas of District 30; these students from District 30 are predominantly "other."
The two schools in the southern half of District 24 are J 93 located in the Ridgewood area and J 119 located in the Glendale area. J 93 has an annex at J 77, also in the Ridgewood area. As of 1978, J 93 was 73% "other" and 27% minority and J 119 was 83% "other" and 17% minority.
(2) Segregation at J 93 and J 119
In addition to the predominantly "other" composition of their student bodies, J 93 and J 119 are perceived, both in their immediate surrounding communities and in District 24 as a whole as "white" schools. These two factors combine to properly brand J 93 and J 119 as white segregated schools.
(3) Segregation at I.S. 61 and its Two Annexes
As indicated above, the racial composition of I.S. 61 as of 1978 was 16% "other" and 84% minority. I.S. 61 is and, for a number of years, has been perceived by those in District 24 as a whole as a minority school.
The evidence indicates that the instructional program of I.S. 61 includes all the traditional subjects. Special talent programs and a variety of shops are also made available to I.S. 61's students. The one representative of the I.S. 61 teaching staff who testified at the trial appeared genuinely interested in the education and well-being of the students. Although at least one of the plaintiffs' witnesses testified to what she perceived to be a failure to respond adequately and without outside parental pressure to the special needs of the I.S. 61 student population, the evidence indicates that I.S. 61's students are the recipients of various special programs intended to meet those students' particular needs; and although I.S. 61 apparently does have difficulty obtaining substitute teachers, that difficulty is ostensibly no greater than that at other Title I schools.
Still, whatever may be said about the quality of the education afforded students at I.S. 61 cannot change the fact, which this court finds, that, by virtue of the racial composition of its student body and the manner in which it is perceived in both the immediate and larger District 24 community, I.S. 61 is a predominantly minority segregated school.
All signs indicate that this segregation is increasing with each passing year.
Since September 1976, the sixth-grade students assigned to I.S. 61 have been transported by bus to two annexes in District 25 one annex at J 168, the other at J 218. The students who are sent to the two annexes in District 25 are drawn from the same geographic zone as the students who attend the main building of I.S. 61, and thus, their racial composition reflects the overwhelmingly minority composition of the main I.S. 61 building. In contrast, the racial composition of the students from District 25 assigned to J 168 and J 218 is much more evenly balanced. As of 1977, J 168 was 45% "other" and J 218 was 58% "other," as compared to 18% "other" for I.S. 61 that year.
Although housed in the same facility, the I.S. 61 sixth graders and the main population at each of the two District 25 junior high schools in which the I.S. 61 annexes are maintained and kept as separate groups with little informal and virtually no formal interrelationship. Organizationally and administratively, the I.S. 61 annexes are considered part of the main I.S. 61 facility, not of the two junior high schools in District 25. To facilitate day-to-day operations, each of the two annexes has its own administrative structure headed by an assistant principal who formerly worked at the main I.S. 61 facility. The teachers at the two annexes are considered part of the I.S. 61 teaching staff. It is made clear to the I.S. 61 sixth graders at the beginning of the school year that they are at the District 25 facilities temporarily for one year only because the main I.S. 61 building is overcrowded. The affected communities and students from I.S. 61 are simply using available space in the two District 25 junior high schools and are not actually part of the District 25 facilities. District 25 derives a benefit from making the space available to the students from I.S. 61 because without the I.S. 61 annexes each of the two involved District 25 junior high schools would be significantly underutilized, and there is a strong probability that one of the two junior high schools would be closed down and the two schools consolidated.
Although the I.S. 61 sixth graders in both annexes have use of facilities such as the cafeteria, auditorium and gymnasium, none of those facilities, not even the cafeteria, are used by the sixth graders from I.S. 61 at the same time as the regular District 25 students. The separation of the two groups of students is evident from the commencement of the school day which for the regular District 25 students starts at an earlier hour than it does for the sixth graders from I.S. 61.
In J 168 the I.S. 61 sixth graders change classes and pass in the halls at a different bell than the regular District 25 students. The assistant principal in charge of the J 168 annex explained that practice as something which he, rather than anyone connected with the J 168 administration or community, initiated as a precautionary measure for the safety of the younger and smaller I.S. 61 annex students. The assistant principal in charge of the J 168 annex also testified, however, that by and large for most of the school day and most of the school week, the children bussed into the I.S. 61 annex at J 168 do not mix with the main body of students attending J 168.
In J 218, the I.S. 61 annex is housed primarily on the third floor where all of the classrooms used by the I.S. 61 sixth graders are located. However, the assistant principal in charge of the J 218 annex testified that the third floor was also used to some extent by the regular J 218 student body.
The I.S. 61 sixth graders have essentially the same instructional program available to them at the two annexes as they would at the main building of I.S. 61, with one exception. At the annexes, the sixth graders could not take typing which might have been available at the main building. However, the sixth graders do not have to forego taking typing altogether. They simply have to postpone taking that course until they return to the main I.S. 61 building. Otherwise, sixth-grade students at the annexes may still take two-year or three-year special progress classes ("SP's"), foreign languages, special talent classes, bilingual classes, remedial reading or math classes, and a number of shops. The distribution of the sixth-grade students between the two annexes, is to some extent, dictated by the classes the students choose to take. For example, if a student chooses to take the two-year SP program, he or she would have to attend the J 168 annex where the one two-year SP class is offered, whereas a student choosing to take the three-year SP program would attend the J 218 annex where the two three-year SP classes are offered. A deliberate effort was made by the I.S. 61 administration in setting up the annexes to divide up the academic program fairly between the two annexes so that one annex would not have all the brighter children and the other, all the children needing special remedial attention. There is no evidence of any unusual concentration of white children in any one or more classes within either of the I.S. 61 annexes.
The I.S. 61 sixth graders have use of the library in the respective facilities in which they are housed, although, again, not generally at the same time as the regular District 25 students. I.S. 61 does assign a librarian to the annex who splits her time between the two buildings. I.S. 61 also assigns one guidance counselor to the two annexes who also splits her time between the two schools. The guidance counselor has, however, made adjustments in her schedule where necessary.
In terms of extracurricular activities, the sixth graders at both annexes are afforded an opportunity to work on the school newspaper and school magazine. However, to participate in these activities, a special effort is required on the part of the students who must catch an earlier bus and arrive at their respective schools a half-hour earlier than their fellow classmates. There appears to be no opportunity for after-school extracurricular activities for the I.S. 61 annex students.
The physical and organizational separation between the heavily minority I.S. 61 sixth graders and the less minority native student body at each of the annex facilities is apparent. That physical separation, together with the heavily minority composition of the I.S. 61 annex student bodies and the perception in both the District 24 sending community and the District 25 receiving community that no real interrelationship exists between the units housed within the same facility leads the court to find as a fact that the two I.S. 61 annexes in District 25 are segregated facilities.
C. Segregation in District 24 as Initially Related to the Neighborhood School Policy and Natural Demographic Changes
The basic principle under which students in District 24 have historically been assigned to elementary and middle-level schools is the neighborhood school policy. Under such a policy, students are zoned to schools geographically according to the area in which the particular student resides and generally to the school at a particular level in closest proximity to the student's residence. When students are assigned to schools pursuant to a neighborhood school policy, the racial composition of the schools generally reflects the racial characteristics of the area in which the particular schools are located.
As a result of this policy, the difference in racial composition between the middle-level schools in the northern and southern halves of District 24 generally reflects the fact that there are very few minority students residing in the southern part of the District and many more minority students residing in the northern half of the District. The same explanation accounts, at least initially, for the segregated situations existing at J 93 and J 119 in the southern half of the District. Similarly, the increasingly minority composition of the student body at I.S. 61 from its opening in September 1966 reflects population changes in the surrounding Corona and Elmhurst areas.
The record in this case includes evidence introduced by defendants of every zoning and assignment change affecting or involving District 24 since February 1966 (Defendants' Exhibits 12 through 36). Excluding for the moment any actions by defendant schools officials occurring in or after September 1976, when the decision creating the two District 25 annexes to I.S. 61 became effective, none of the zoning or assignment changes shown appears as a deliberate device either to perpetuate, create or enhance racial segregation in District 24's schools. However, there was also testimony at trial suggesting that as a general matter there is a complex interrelationship between changes in the racial composition of the schools in a particular area and changes in the racial composition of that area's population so that it is possible that had defendant school officials taken specific and deliberate action at some point to stabilize the racial composition of I.S. 61 and its feeder schools, the population change in the surrounding areas might also have been lessened.
The roots of I.S. 61's segregation in the neighborhood school policy is confirmed by an examination of its feeder schools. The presently designated feeder schools to I.S. 61 are public schools ("P") 13, 14, 19 and 143, all located in the northeastern part of District 24 surrounding I.S. 61. P 13 is only a partial feeder to I.S. 61. Of the feeder schools, the two northernmost schools have the lowest percentage of "others" and highest percentage of minority students, with P 143 in the extreme northeast corner of the District having the lowest percentage of "others" and the highest percentage of minority students of all the I.S. 61 feeder schools. The following chart indicates the percentage of "others" and of minority students reported for the I.S. 61 feeder schools in 1977 and 1978.
Year Schools % Others % Minority
1977 13 22 78
1978 13 16 84
1977 14 3 3 67
1978 14 Data Missing Data Missing
1977 19 10 90
1978 19 9 91
1977 143 2 9 8
1978 143 1 99
The evidence also indicates that students in the fifth grade of P 206 in adjoining District 28 may choose to attend I.S. 61. The racial composition of P 206 as of 1977 was reported as 30% "other," 70% minority.
Evaluation of the present situation in District 24, and in particular of the situation presented by the two segregated District 25 annexes to I.S. 61 requires, however, that this court move beyond the fact of the neighborhood school policy as the initial basis on which the District 24 Community School Board prefers to assign its students to elementary and middle-level schools. Defendant school officials in this case were presented not simply with a question of how to assign students residing within the District to school. In addition, the evidence establishes that defendant school officials were presented with a very serious and difficult problem of overcrowding in the District, particularly in the northeastern Corona-Elmhurst area which could not be resolved within the confines of the neighborhood school policy.
D. The Problem: District-Wide Overcrowding Especially Severe at I.S. 61
At a time when many districts throughout the City are facing declining student populations and a large number of underutilized school facilities, District 24 is one of the few districts in the City in which the student population has been growing. That growth has affected all the middle-level students in District 24, but has had its most severe and tragic impact on I.S. 61 which has been laboring under a serious overcrowding problem ever since the school first opened in September 1966.
I.S. 61's utilization during its first year of operation was reported as 134%. The racial composition of the I.S. 61 student body during that first year was reported at 77% "other," 23% minority. However, at that time and continuing until 1968 a different definition of "other" was in use than is in use today. Prior to 1968, the term "other" included white, oriental, American Indian, and non-Puerto Rican hispanic pupils. Had the present definition of "other" been used in 1966,
the racial composition of I.S. 61 during that year would have been reflected at 57% "other" and 43% minority.
The overcrowding problem at I.S. 61 intensified over the ensuing years. At the same time, the percentage of minority students steadily increased. Both of these trends are indicated on the following chart which summarizes the utilization and racial composition figures for I.S. 61 from the school year beginning September 1967 through the end of the September 1975 school year, after which the District 25 annexes were instituted.
Year % of Racial Composition
(September) Utilization % Others % Minority
1967 138; 147 * 74 26 (pre-1968
46 (post 1968
1968 138 52 48
1969 137 53 47
1970 143 49 51
1971 162 45 55
1972 163 42 58
1973 159 36 64
1974 146 31 69
1975 150 29 71
* Two utilization figures appear on chart because two differ-
ent utilization figures were testified to during trial.
The severe overcrowding at I.S. 61 has had an adverse impact on the educational experience of the school's students almost from the start. After one year of operation, I.S. 61 was put on overlapping sessions. That meant that the normal school day was extended and that the use of the school facilities was somewhat staggered among the various grades with the seventh and eighth grades coming in to school two periods earlier than the sixth grade and leaving the school two periods earlier at around 2:30 p.m., while the sixth graders were held for later dismissal. In addition, teachers came into the facility at staggered times which overlapped.
I.S. 61 remained on overlapping sessions for eight years until September 1975 when, because of the strain imposed on the facility by the severe overcrowding, the school was placed on end-to-end sessions. At the time, all involved understood that the end-to-end sessions were to be a temporary expedient for one year only. Prior to placing I.S. 61 on end-to-end sessions, the testimony at trial indicates, the severe overcrowding produced considerable tension and increased disciplinary problems at the school, especially evident when students were moving in the hallways between periods at which time the sheer volume of students almost inevitably resulted in bumping and physical contact between students. The evidence also establishes that concern was legitimately expressed about the ability of all I.S. 61 students to evacuate the building in the event of a fire or some other emergency.
Under the end-to-end organization, different groups of students used the I.S. 61 facility at different times. The seventh and eighth graders reported to school at 7:00 a.m., began their school day at approximately 7:30 a.m., and were dismissed at noon. The sixth graders first reported to school at noon, when the seventh and eighth graders were dismissed, and left the school at approximately 4:30 or 5:00 p.m. In the September 1975 June 1976 school year, I.S. 61 was the only middle-level school in the entire City operating on end-to-end sessions.
The end-to-end sessions did result in some loss of educational time to the I.S. 61 students approximately five instructional periods a week. Some of the lost periods would have been devoted to elective courses, but the lost time also included a reduction in the periods devoted to basic subjects such as English and Social Studies. As a result of the end-to-end sessions, I.S. 61 students also had virtually no opportunity to engage in extracurricular activities of any kind. In addition, the evidence indicates that many of the students who were eligible for free lunches did not avail themselves of that opportunity because it would have meant either staying in school an extra period after the conclusion of their school day or coming to school a period earlier than they otherwise would have had to do.
Dr. Irving Berchuck, former Superintendent of District 24 from the years 1970-1975, testified that I.S. 61's actual capacity was understated by the official statistics because available space in the school which was devoted to guidance and other special services was not included in the official capacity figures. Acceptance of this aspect of Doctor Berchuck's testimony, however, might only change the statistical statement of the overutilization problem at I.S. 61, perhaps reducing somewhat the reported utilization figures. It does not, however, change the clear reality established by the evidence by an overcrowding problem at I.S. 61 so severe that substantial and ultimately drastic changes in the organizational structure of the school were required. Nor does it alter the fact that the overcrowding problem at I.S. 61 was so severe and the shortage of available space so acute that halls which had housed lockers for the I.S. 61 students were stripped of those lockers and converted into windowless classrooms, teachers' work rooms were converted into classrooms, and what was described by one witness as a "studio costume closet type of room" originally used in connection with the school's drama program was converted into two classrooms.
Towards the end of the 1975-76 school year, the Chancellor instructed the District 24 Community School Board that the end-to-end sessions at I.S. 61 could not continue beyond that school year and that some other solution would have to be found to the severe overcrowding at the school. The solution decided upon by defendant school officials beginning with the September 1976 school year was the two annexes in District 25 to which I.S. 61 sixth graders would be transported by bus. Those annexes continue in existence to this date.
E. Historical Background to the Decision to Institute the Two District 25 Annexes
(1) Prior Actions and Inaction of Defendant School Officials in Response to the Overcrowding at I.S. 61
(a) Removal of P 89 from I.S. 61 Feeder Pattern Effective September 1967
When I.S. 61 opened in September 1966, P 89 was included among its feeder schools. Effective September 1967, J 73, which as a grade 7-9 school had been significantly underutilized, was reorganized into a grade 6-9 school, and P 89 was rezoned to feed into J 73. In 1967, P 89 was reported to have an 81% "other" student body, under the old definition of other, a percentage of "other" slightly higher than the percentage reported for I.S. 61. In 1968, under the new definition, P 89 was reported as having 49% "other" in its student body as compared to the 52% "other" reported for I.S. 61. According to the reported figures P 89 continued to have a slightly lesser percentage of "other" than I.S. 61 through 1973 when the figures reversed until they became identical in 1977 and again reverted to their former pattern in 1978 with P 89 reporting a slightly lower percentage of "other" than I.S. 61. In any event, the continuing overcrowding problem at I.S. 61 would certainly have been even worse had P 89 remained in the I.S. 61 feeder pattern.
(b) Failure of the Community School Board to Take Any Direct Action to Relieve the Overcrowding at I.S. 61 Between 1970 and 1975
Effective September 1970, decentralization was instituted in the New York City school system at the elementary and middle school levels. Under decentralization, responsibility for the assignment of students within particular districts to schools and for all matters of zoning rests initially with local community school boards. The Chancellor, however, retains the authority to supersede actions of the local community boards under certain circumstances and to act under certain circumstances when the local boards fail to act.
Community school board members are elected on a district-wide basis. See N.Y.Educ.Law § 2590-C (McKinney's Supp.1978). The evidence indicates that their terms of office typically begin in June of the first year for which they are elected to serve. Theoretically, one might expect that board members would consider and be responsive to the needs of all parts of the district on an equal basis. In fact, the evidence in this case indicates many of the members of the District 24 Board approached the District's overcrowding problem in terms of the parochial interests of particular areas of the District with which they were most closely associated.
The District 24 Community School Board set up various committees to deal with different matters related to the education of the children within the District. The initiation and formulation of zoning proposals is the province of the Zoning Committee, chaired by one or more members of the Community School Board but open to participation by all members of the community. To be put into effect, however, Zoning Committee proposals have to be considered and formally adopted by the Community School Board as a whole. In addition, zoning resolutions adopted by the Community School Board are reviewed by the Central Board's Office of Zoning and Integration to insure that the proposals worked out in the community do not violate any policy of the Central Board. One of the policies of the Central Board of Education is to promote integration of the schools where feasible.
One of the witnesses called by plaintiffs was Barbara Shore, a member of the District 24 Community School Board and Chairman of the Zoning Committee from 1973-1977. Mrs. Shore testified that during the years of her chairmanship the Zoning Committee addressed itself primarily to the problem of overcrowding in District 24. She further testified that she was aware of the Central Board's policy to promote integration where feasible. Her testimony suggested, however, that the Central Board's policy regarding integration had not been a significant factor in determining the actions of the Community School Board during her terms of office.
The evidence indicates that the problem of the persistent and increasingly serious overcrowding at I.S. 61 was repeatedly brought to the attention of both the Zoning Committee and the Community School Board as a whole by concerned members of the I.S. 61 community and others throughout the period of the early-to-mid-1970's. The fact of I.S. 61's increasing minority population was also brought to the attention of defendant school officials during that time. However, the evidence indicates that, with one possible exception, no concrete proposals were adopted by the District 24 Community School Board during the 1970-1975 period to alleviate the overcrowding problem at I.S. 61.
The statistics indicate that between 1970 and June 1973, when a new Community School Board began its term of office, the magnitude and dimensions of the overcrowding problem at I.S. 61 significantly worsened. Nevertheless, during that period not a single resolution appears to have been passed by the District 24 Community School Board dealing with the situation at I.S. 61. Plaintiffs' witnesses, particularly Messrs. Susskind and Gertzulin, testified to repeated efforts by concerned parents and others during that 1970-1973 period to get school officials at both the local and Central Board levels to do something about the steadily worsening situation at I.S. 61, to no avail. Nor can the inaction of school officials during this early period fairly be explained, as defendants attempted to explain both their actions and inactions later on as due to the relief expected from the construction of I.S. 227, since actual construction on that facility did not begin until 1974, and it was known that the construction of that facility would take several years.
The one possible exception to the pattern of inaction during this early period was testified to by Mrs. Shore. She testified that when she first assumed her position on the Community School Board in June 1973 there was an option in effect pursuant to which fifth-grade students graduating from P 143 and P 19 could choose to go on to either J 73 or J 125 rather than to I.S. 61. The effect of the exercise of such an option would have been to alleviate to some degree the magnitude of the overcrowding that would otherwise have existed at I.S. 61. In addition, because P 143 and P 19 were the most overwhelmingly minority of the I.S. 61 feeder schools, the exercise of such an option theoretically should have reduced to some extent the percentage of minority students at I.S. 61.
Mrs. Shore testified that during the years she was on the Board about half the children graduating from P 143 opted to attend J 73 rather than I.S. 61 and that smaller numbers opted to attend J 125. She further testified that during the years of her tenure on the Board, the number of children from P 19 who availed themselves of the option was growing and that, as she recalls, in the last year of her Board membership, which would have been 1977, the number of children from P 19 who had opted to attend schools other than I.S. 61 was 72, a number which, when considered in terms of the three-year period for which those children would otherwise have been attending I.S. 61, Mrs. Shore characterized as "significant."
Although the record contains no documentary evidence of the adoption of the options testified to by Mrs. Shore, documents introduced at the trial and submitted by defendants after trial in response to an inquiry by this court to indicate that some students from P 19 and P 143 did attend J 73 and J 125 and contain references to options available to P 19 and P 143 students to attend these middle-level schools. However, the documents yield conflicting indications as to how long these opportunities for P 19 and P 143 students were in existence. On the one hand, the documents submitted by defendants after the trial indicate that some students from P 19 and P 143 went on to attend J 73 as early as September 1968 and that this practice continued at least through the 1978 school year. Those same documents also indicate the beginnings of some movement of P 19 graduates to J 125 in the 1973 school year and a small number of graduates from P 143 attending that middle-level school in the 1977 school year. Thus, these documents tend to suggest a long-standing option to P 19 and P 143 graduates to attend J 73 at least going back to the period before decentralization. On the other hand, the minutes of the April 26, 1973, Zoning Committee meeting (attachment to Plaintiffs' Exhibit 12) indicate that the District 24 Superintendent at that time proposed, inter alia, options of the sort described by Mrs. Shore suggesting that no such options were in existence prior to that time.
If the options described by Mrs. Shore went all the way back to 1968, prior to decentralization, then the District 24 Community School Board could not properly claim credit for the institution of those options as a measure for the relief of the overcrowding at I.S. 61 as the Community School Board might properly do if the options were not implemented until sometime after decentralization. For purposes of this opinion, this court will assume that the formulation of the options described by Mrs. Shore was the work of the District 24 Community School Board itself in response to the overcrowding problem at I.S. 61.
Operating under that assumption, certain observations are appropriate concerning the options extended to P 143 and P 19 students to attend either J 73 or J 125 rather than I.S. 61. First, the schools which students pursuing the options could attend were limited to schools in the northern, more minority, half of the District. In contrast to the present intradistrict optional assignment program detailed in Memorandum No. 191 dated June 2, 1978 (Defendants' Exhibit 10), under the terms of which fifth-grade minority students from P 143 and P 19, among others, are listed as having the option to attend J 93 and J 119 in the southern half of the District,
the options earlier available did not include any schools in the southern half of the District with their predominantly white student bodies. Mrs. Shore's explanation for the earlier failure to extend the options to permit students in the northern part of the District to attend the two southern area middle-level schools as well was that those two schools were organized on a grade 7 through 9 basis and did not have a sixth grade to which the fifth-grade graduates of P 143 and P 19 could be sent. However, that same situation apparently held true at the time the current intradistrict optional assignment program was developed and apparently was not seen as an obstacle to the present extension of an option to P 143 and P 19 students to attend J 119 or J 93. Instead, Memorandum No. 191 simply states that "(i)f enough fifth graders volunteer, grade six may be organized in J.H.S. 93 and/or J.H.S. 119." In fact, Mr. Elias, director of the Central Board's Office of Zoning and Integration, testified that as of September 1978 J 119 and J 93 each had one sixth-grade class because of the intra-district optional assignment program. In addition, when in 1967 prior to decentralization P 89 was redesignated as a feeder school to J 73 instead of I.S. 61, J 73 was reorganized from a grade 7 through 9 to a grade 6 through 9 school, indicating that the initial absence of a sixth grade from a middle-level school does not pose an insuperable obstacle to use of the school to absorb students graduating from elementary schools terminating in the fifth rather than sixth grades.
From the standpoint of overcrowding alone, the statistics do not indicate any significant difference in the early 1970's between the ability of the northern area J 73 and J 125 middle-level schools and J 119 and J 93 in the south to absorb additional students under an optional program. The 1973 figures show J 93 as having a utilization of 126%, whereas J 73 and J 125 each had utilizations of 110%. J 119, however, with its annex at P 91 was shown as having a utilization of 94%. With respect to all of these utilization figures it should be noted that former District 24 Superintendent Berchuck testified that a middle-level school could operate effectively and would not be considered overcrowded until it reached a capacity of 120%. In 1973 only one middle-level school in District 24 was reported as having a utilization of considerably more than 120% and that was I.S. 61 with a reported utilization of 159%.
The testimony at trial was confused as to the provision of special bus transportation by the Board of Education to children opting to attend schools outside of their immediate neighborhoods under optional assignment programs in general and as to the assurance regarding the availability of such special transportation which the Board of Education is able to give parents at the time they are asked whether they wanted to exercise an assignment option for their children. The evidence was even more inscrutable with respect to the availability of specially provided bus transportation in connection with the specific options to the students of P 143 and P 19 alone described by Mrs. Shore. That confusion highlights the reality apparent to the court and which should have been apparent to a reasonable and objective community school board at the time that, although clearly described optional programs might help to some extent in alleviating a problem of overcrowding, when compared to the magnitude of the overcrowding problem at I.S. 61, an optional program alone without some compulsory rezoning and reassignment of students at the middle school level could not satisfactorily resolve I.S. 61's overcrowding problem.
The use of options rather than compulsory rezoning measures rather clearly places the burden of action on the parents and children to whom the options are extended. Whatever may be said about the use of options by school officials to voluntarily afford students opportunities for improved integration, the purpose for which the optional assignment programs discussed later on in this opinion were avowedly developed, the use of options alone to deal with as significant a problem as severe overcrowding in a particular school, appears wholly inadequate.
The evidence indicates that the subject of the rezoning of District 24's middle-level schools another and far more effective way of dealing with overcrowding did come up for frequent discussion and consideration by the Zoning Committee at least as early as 1972. However, the evidence also indicates that, despite all the discussion and consideration given to that solution, the Zoning Committee was unable to come up with a single rezoning proposal which it could recommend to the District 24 Community School Board as a whole. In fact, through the nine years that decentralization has been in effect, the Zoning Committee has been unable to come up with one rezoning proposal directed to overcrowding at District 24's middle-level schools which was taken up for formal consideration by the Community School Board.
Among the examples in the record of early discussion and consideration of the possibility of rezoning are the following: The minutes of the April 26, 1973, Zoning Committee meeting indicate that there was a discussion "dealing with change of feeder patterns (and) step zoning
of junior high schools." (Attachment to Plaintiffs' Exhibit 12.) A memorandum dated May 3, 1973, advised all Zoning Committee members that there was to be a special Zoning Committee meeting on May 9, 1973, at which the agenda would be "step zoning to relieve overcrowding (at) I.S. 61." Id. No concrete plans or proposals emerged from either of these meetings.
Minutes of a Zoning Committee meeting dated July 17, 1973, indicate that the Committee requested the district office to come up with a plan for rezoning of pupils. Id. In apparent response, Superintendent Berchuck, in a memorandum dated August 6, 1973, id., submitted to Mrs. Shore as Chairman of the Zoning Committee step-zoning proposals which were essentially the same as the proposal which he had previously conveyed to the Community School Board in a memorandum dated June 21, 1973. Id.
Interestingly, the August 6, 1973, memorandum from Superintendent Berchuck begins with the following paragraph:
"Last year the Zoning Committee asked that a step zoning proposal be prepared by the Community Superintendent that would relieve overcrowding at I.S. 61 and more fully utilize existing middle school space in the Ridgewood-Glendale section of that district."
The paragraph indicates that the need for a step zoning of District 24's middle-level schools was, in fact, being discussed by the Zoning Committee as early as 1972. It also clearly links the perceived need for a step zoning plan to the overcrowding at I.S. 61. Finally, and perhaps most significantly, the memorandum indicates that in 1973 the middle-level schools in the southern half of the District were not perceived as having a utilization problem, but rather, were perceived as having available space which could be used as a resource in an attempt to relieve the continuing and worsening overcrowding problem at I.S. 61.
Nothing came of Superintendent Berchuck's step-zoning proposal. The minutes of the September 12, 1973, Zoning Committee meeting, id., indicate that the Committee found that proposal "unacceptable." At that September 12 meeting a subcommittee was formed consisting of the junior high school principals and the Zoning Committee Chairman "to formulate a plan for the intra-district step-zoning of the junior highs." It was also suggested at that meeting that the Central Board of Education be asked to rezone the District's junior high schools, but that suggestion apparently was not acted upon. The minutes of the November 15, 1973, Zoning Committee meeting, id., indicate that the junior high school principals met and agreed that the problem of I.S. 61 was "so vast that it would not be feasible to solve it amongst themselves." Again, the minutes indicate that a motion was made to ask the Central Board to solve the problem, but the motion was not seconded. Instead, another subcommittee was set up to study the feasibility of step zoning the District's junior high schools. Whatever the results of that subcommittee's study, they apparently did not include any rezoning proposals which were ever recommended to the Community School Board.
Turning to the second part of the 1970 through June 1975 period, Mrs. Ann Darby, another of plaintiffs' witnesses, a member of the District 24 Community School Board from 1973-1977 and the Chairman of that Board from 1975-1977, testified that during her first term on the Board from June 1973 until June 1975, and despite the glaring needs of I.S. 61 at that time, the main interest of the Board members was not the situation at I.S. 61 and the need for some action to alleviate that situation, but rather, the problems of schools in the southern half of the District. Whenever the problem at I.S. 61 was raised, Mrs. Darby testified, the response of the Board members was essentially to state that the still-to-be-completed I.S. 227 would be the answer to I.S. 61's problems. The effect of the Board's reliance on I.S. 227 was essentially to preclude any immediate relief for I.S. 61. At the same time, as discussed infra, in contrast to the Community School Board's failure during the entire 1970-1975 period, with the one exception previously noted, to adopt any resolution which might begin to have a real impact on the serious overcrowding at I.S. 61, the School Board during the period from 1970 until June 1975 adopted numerous resolutions dealing with the needs, even at the most minute level, of schools in the southern half of the District.
Defendants cite the extension of an option effective September 1974 to students from P 206 in District 28 to remain in P 206 for the sixth grade and then go on to J 157 in District 28 rather than I.S. 61 as an example of action which to some extent alleviated the overcrowding problem at I.S. 61. However, the evidence indicates that the option was extended at the initiative of the District 28 rather than District 24 Community School Board. The District 24 Community School Board simply concurred in the extension of this option which did remove some children from I.S. 61. Further, the extension of this option still left I.S. 61 with a serious overcrowding problem and in no way eliminated the need for action to relieve the overcrowding at I.S. 61.
Testimony in the record indicates that a desire not to aggravate the trend towards an increasing minority composition of I.S. 61 did play some part in the inability of the Zoning Committee and those involved in that Committee's efforts during this early period to formulate a rezoning plan for District 24. Mrs. Shore testified that the problem with step zoning to relieve the overcrowding at I.S. 61 was that the population in the southernmost portion of the I.S. 61 geographic zone, and thus the population that would have been removed from I.S. 61 under step zoning, was more predominantly white than the other parts of the I.S. 61 zone so that the removal of that population would have adversely affected the racial composition of I.S. 61. Continuing in this vein, Mrs. Shore testified that the areas of the P 143 and P 19 feeder schools supplied the most heavily minority concentration of students to I.S. 61, and that was why the options to students from those areas to attend J 73 and J 125 rather than I.S. 61 had been developed. The obvious question raised by this testimony is why no consideration was ever given by the Zoning Committee or the community's School Board itself to compulsory skip zoning
of students from either the P 143 or P 19 areas into other middle-level schools as a means of relieving some of the overcrowding at I.S. 61 while preserving racial integration. Such compulsory skip zoning had been effected, although on a very small scale, at the elementary school level prior to decentralization by the Central Board of Education (Defendants' Exhibit 25).
Mrs. Shore's testimony that the reason for the inability to come up with a rezoning proposal in 1973 and 1974 was that the District as a whole did not have enough seats at the middle school level to deal with the problem is unconvincing since, as noted above, the documents themselves indicate that the middle-level schools in the southern half of the District were at the time perceived as having space available to absorb more students. See, e.g., discussion of Doctor Berchuck's August 6, 1973, memorandum supra. Even if a rezoning plan would not have been the complete answer to I.S. 61's problem, the magnitude of the overcrowding problem at I.S. 61 suggests that even partial solutions would have been better than none and suggests further that some other factor or factors were at work in the failure of the Zoning Committee and Community School Board to adopt a rezoning plan. Plaintiffs produced several witnesses who testified that, based on their personal experience in trying to get some early relief for I.S. 61, the increasing minority composition of I.S. 61 was one, if not the primary, factor responsible for the inaction of school officials. Nothing in the testimony of defendants' witnesses nor in the record as a whole, including the persistent references to I.S. 227, as the ultimate solution to the problems of overcrowding, as discussed below, convincingly rebuts the inference which emerges from the record as a whole that the racial composition of the I.S. 61 student body and discrimination on the basis of race played a significant role in the failure of defendant school officials to take action to relieve the overcrowding at I.S. 61 between 1970 and June 1975.
(2) Prior Actions of Defendant School Officials with Respect to I.S. 61's Feeder Schools Which May Have Had Some Effect on the Overcrowding at I.S. 61
In 1967, prior to decentralization and in connection with the organization of a new facility, P 229, in District 24, students from the area of P 143 in the extreme northeastern corner of the District were skip zoned to P 229. The comments accompanying the report of this zoning change stated, inter alia, that "(a) degree of added integration is being achieved by the zoning of some pupils in the zone for P 143-Q." (Defendants' Exhibit 18.)
Also in 1967, an option was extended to all third-grade pupils in the area of P 19 to attend the new P 229. The report of that action estimated that a maximum of seventy third-grade students, all minority, might avail themselves of that option (Defendants' Exhibit 19).
Mr. Elias, present head of the Central Board's Office of Zoning and Integration, testified that when a student opts to attend an elementary school other than the elementary school to which the geographic area in which that student resides is zoned, the student typically follows the pattern of the majority of the children in the elementary school which he has opted to attend at the middle school level and attends the middle school which those children are zoned to attend rather than the middle school which children in his or her own geographic area are zoned to attend. Under that procedure, the exercise of an option by third graders in the P 19 area to attend P 229 would have the eventual result of removing some students from I.S. 61 because the students from the P 19 area would follow the majority of the P 229 students on to J 73 rather than go to I.S. 61.
It is not clear whether the skip zoning of children from the area of P 143 had the same eventual result of removing some students from I.S. 61. In the context of the discussion of a step-zoning plan, Mr. Elias testified in effect that, in contrast to the situation involving the exercise of an option, when the geographic area in which a student resides is simply shifted to a different elementary school, the assignment of that child to a middle-level school will still be effected on the basis of the geographic area in which the student resides. As this court understands Mr. Elias' testimony, that means that, in the context of step-zoning plan as opposed to an optional assignment program, a change in the elementary school assignment of a student who would otherwise have attended an I.S. 61 feeder school would not necessarily mean that the student who still resides within the I.S. 61 geographic area would not attend I.S. 61 at the middle school level. If that principle is transferable from the step-zoning to the skip-zoning context, the skip zoning of students from P 143 to P 229, the majority of whose students go on to J 73, did not result in any corresponding reduction in the number of students attending I.S. 61.
(3) Prior Actions of Defendant School Officials in Adjusting the Utilizations of Schools Other Than I.S. 61 and in Responding to the Needs of Schools in the Southern Half of the District
In contrast to the failure of the District 24 Board during the period after the beginning of decentralization through June 1975 to initiate any action to relive the serious overcrowding at I.S. 61, that Board with the approval of Central Board officials did, during the same period, initiate a variety of measures to make rather fine-tuned changes in the utilization of other schools in the District, primarily in the southern half of the District and to respond to perceived needs of students residing in the southern half of the District.
Effective September 1972, a measure was instituted to relieve overutilization at J 119 in the southern half of the District through the reorganization of P 91, also in the southern half of the District, into an I.S./P school containing in one facility both a kindergarten through fifth-grade elementary organization and a grade six through eight I.S. organization. While I.S./P 91 thus relieved J 119 of some of its student population, it was not an annex to J 119 because the students attending the I.S. portion of the 91 facility were not drawn from the same geographic zone as the students attending J 119 and it is generally a requirement of an annex that it students be drawn from the same geographic zone as the main facility. See discussion of annexes infra. Implementation of the I.S./P structure at P 91 was projected as reducing the utilization of J 119 from 122.5% to 114.4% and as increasing the utilization of P 91 from 87.4% to 107.8% (Defendants' Exhibit 23).
Also effective September 1972, as a means of relieving projected overutilization of J 125 in the northern half of the District, an option was granted to District 30 students zoned to J 125 to attend J 204 in District 30. It was projected that forty-five students, all minority, might avail themselves of this option. Apparently the reason it was projected that only minority students would avail themselves of this option was because J 204 is and was an overwhelmingly minority school. The projected impact of the extension of this option on the racial composition of the J 125 student body was an increase in the percentage of "others" (Defendants' Exhibit 24).
A third measure, effective September 1972, involved a step rezoning of six District 24 elementary schools "to relieve crowding and to more effectively use available space." The elementary schools involved, moving from the north to the south, were P 13, P 102, P 49, P 87, P 81, and P 68. The step rezoning involved the movement of very small numbers of students between the various schools only fifty-three students altogether and constitutes an example of very fine-tuned equalization of utilization levels among the various schools in the south. It is interesting to note that neither of the heavily minority I.S. 61 feeder schools, P 143 and P 19, was involved in this elementary school rezoning, nor was the I.S. 61 feeder school of P 14 involved in this rezoning measure (Defendants' Exhibit 25).
Effective September 1974, a measure was implemented to relieve overcrowding at P 81 in the southern half of the District by rezoning twenty-six pupils to P 71 and fifteen students to P 88, both of the receiving schools also being in the southern half of the District. As the comments accompanying the report of this action themselves indicate, the effect of this measure on conditions at P 81 was "miniscule statistically." However, the comments did state that the "[relief] provided is meaningful at a practical level." (Defendant's Exhibit 27.)
Also effective September 1974, thirteen students from P 87 in the southern half of the District were reassigned to P 128 also in the southern half of the District "for the purpose of eliminating a hazardous crossing." Without in any way minimizing the importance of school officials making these kinds of adjustments, this court simply notes that evidence of this kind of keen concern for the well being of the students is rather lacking in the school officials' contemporaneous response or, more appropriately, lack of response to the situation faced by the increasingly minority students at the severely overcrowded I.S. 61 (Defendants' Exhibit 28). A third measure effective September 1974 was designed to alleviate overcrowding in J 93 in the southern half of the District by rezoning students residing in the P 68 area to attend J 119 or I.S./P 91 also in the southern half of the District. The projected effect was to reduce the utilization of I.S./P 93 from 124.0% to 112.2%; to reduce the utilization of I.S./P 91 from 117.0% to 104.8%; and to increase the utilization of J 119 from 95.0% to 101.0% (Defendants' Exhibit 29).
A fourth measure, effective September 1974, rezoned thirteen pupils from I.S./ P 91 to P 113, both schools in the southern half of the District, "for the purpose of better utilization in both schools." This measure involved only the elementary part of I.S./P 91 and was projected as reducing that schools' utilization from 106.0% to 103.9% while increasing the utilization of P 113 from 83.0% to 86.0% (Defendants' Exhibit 30).
(4) I.S. 227 Developments Prior to Decision to Institute District 25 Annexes to I.S. 61
At some point in the later part of the 1960's, discussions began over the selection of a site for a new middle-level school to be located somewhere in either the north-northeastern part of District 24 or the southeastern part of what is now District 30. The new school, designated as I.S. 227, was intended to relieve overcrowding in both Districts. The early documents reflect concern with serious overcrowding at I.S. 145 in what is now District 30 and concern as well for overcrowding at P 89 in District 24. Soon, as the serious overcrowding problem at I.S. 61 came to the fore and steadily worsened, I.S. 227 came to be viewed as an avenue of relief for the overcrowding at I.S. 61 as well.
The present site of I.S. 227 located in the southeastern corner of District 30 was authorized by the Central Board in November 1970. Thereafter, the Central Board went through its normal bidding procedure pursuant to which it entered into multiple contracts for various aspects of the work which had to be performed. Actual construction on I.S. 227 did not begin until sometime in 1974 after the site had been cleared.
From the beginning, the Central Board of Education indicated that it wanted I.S. 227 to open as an integrated facility. In fact, it appears that early on one potential site for the proposed new school was withdrawn by local school officials
because of the perceived difficulty of opening a facility at the location as an integrated school. Defendants have maintained and for purposes of this opinion I accept it as a fact that in the late 1960's it would have been possible to have opened I.S. 227 on its present site as a neighborhood school, zoning in children from the surrounding area, and at the same time to have had a fair degree of integration at that school. The situation, however, no longer held true by the time of a meeting between District 30 and District 24 officials in November 1973 regarding the tenanting of I.S. 227 which took place even before actual construction of the school had begun and at which District 30 officials are reported as stating that if I.S. 227 were zoned on a neighborhood school basis one would "end up with a black-Hispanic school." (Plaintiffs' Exhibit 97r.) Thus, even before actual construction on the school began, it was apparent that I.S. 227 could not open both as a strictly neighborhood school and as an integrated facility.
Because I.S. 227 was physically located in District 30, but was intended to address the needs of students in both Districts 30 and 24, the two districts were required pursuant to the provisions of Special Circular 108 (Plaintiffs' Exhibit 14) to engage in interdistrict consultations with respect to the zoning of the new school. Ultimate responsibility for initiating and coordinating those consultations under the terms of the circular rested with District 30 as the district in which I.S. 227 was physically located. Special Circular 108 also provides that if two districts cannot agree on interdistrict zoning plans, the Chancellor should step in and resolve the differences between the districts.
From the beginning, the interdistrict consultations between District 30 and District 24 were marked by disagreement. The districts were able to agree in general terms that approximately 600 of the 1,800 seats in I.S. 227 should be reserved for students from District 24 with 200 seats being reserved for handicapped children and 1,000 seats for students from District 30. However, there was sharp disagreement as to the specifics of the tenanting of the new school.
It was the position of District 30, reiterated repeatedly, that under the policies of both the State Regents and the City Central Board of Education, I.S. 227, as a new school, would have to open as an integrated facility reflecting the racial composition of the two districts as a whole. For that reason, District 30 maintained that it would not be possible simply to open I.S. 227 as a neighborhood school. Rather, District 30 maintained, if I.S. 227 were to open as a zoned facility i. e., a facility to which students were compulsorily assigned according to geographic zones rather than as a facility to which students voluntarily chose to go because of a special program such as, for example, a magnet school, it would be necessary for District 24 to engage in internal intra-district rezoning so that District 24 could send a group of students reflective of the racial composition of District 24 as a whole to I.S. 227. For its own part, the documentary evidence accumulated largely in Exhibit 97 indicates that District 30 did, throughout the period of the mid-1970's, explore various ways of zoning students from District 30 to I.S. 227 which would provide racially mixed groups of students from District 30 to that school and involving rezoning of District 30 itself. District 30 also advanced a proposal to open I.S. 227 as a magnet school offering special programs to gifted and talented students and a special career education program to which students would voluntarily choose to go.
From the time of the first interdistrict consultations with District 30, District 24 resisted the notion of any internal rezoning of its own District so that it might send a group of students from District 24 to I.S. 227 representative of the racial composition of District 24 as a whole. By November 1975, District 24 had drawn up three possible plans for the zoning of students from District 24 to I.S. 227, designated Plans "A," "B," and "C." Plans "A" and "B" would have sent varying numbers of students from the areas of P 19 and P 143 to I.S. 227. Thus, the students sent to I.S. 227 under either of those plans would have been heavily minority. Plan "C" would have sent students to I.S. 227 from four schools in the northern section of District 24 P 143, P 19, P 89, and P 12. In the minutes of what appears to have been a District 30 Zoning Committee meeting at which representatives of District 24 were in attendance and held on November 20, 1975 (Plaintiffs' Exhibit 97aa), Plan "C" is described as also providing for an ethnically segregated school, although the statement of the plan as drawn up by District 24 itself indicates that the group of students provided by District 24 to I.S. 227 under Plan "C" might have included 30% "other."
Initially, in November 1975, it was Plan "C" which District 24 advanced in the interdistrict consultations as the plan according to which it wanted to zone students from its District to I.S. 227. At the November 20, 1975, meeting referred to above, District 30 indicated that it had problems with Plan "C" because that plan would impose a great burden on District 30 to single-handedly provide the integration factor for I.S. 227 by radically rezoning its own district and reaching far within District 30 for non-minority students to assign to District 30. District 30 also again raised the possibility of creating a magnet school at I.S. 227. District 24, however, adhered to its proposed Plan "C." Mr. Stewart, a member of the District 30 Community School Board, is reported in the minutes of the November 20, 1975, meeting as having stated that "there is a suspicion of many of the committee that District # 24 is trying to dump their minority children." According to the minutes, "(t)his was discounted by District # 24."
In January 1976, District 24 changed its position and instead of Plan "C," advanced Plan "B" as the plan according to which it wished to zone District 24 students to I.S. 227. The reason apparently given by District 24 for the change was that the areas of P 19 and P 143 were close to I.S. 227 and that the community near the I.S. 227 facility wanted to send their children to that school. The minutes of the District 30 Zoning Committee meeting held on January 20, 1976 (Plaintiffs' Exhibit 97jj), at which District 24's shift to Plan "B" was first reported, state that
"District 24 passed Plan B because it is close to 227 and said that it (sic) District 30's responsibility to balance the school. District 24 is not interested in racial balance. District 24 is sending us 600 children period. They are passing the responsibility to the Central Board for any changes in zoning. There is no need for further meetings because of District 24's attitude."
District 30 again brought up the possibility of a magnet school, but that idea was rejected by District 24.
Thus, an impasse was reached between District 30 and District 24 over the tenanting of I.S. 227. The Central Board's role up to this point in offering concrete suggestions and assistance with respect to I.S. 227 appears to have been negligible.
What prevented the impasse between District 30 and District 24 from having any obvious impact at the time was that I.S. 227 was not yet physically ready to open. In fact, because of the City's fiscal crisis, construction on I.S. 227 had been stopped in November 1975. District 24 officials, along with others, did exert considerable pressure on responsible officials to have construction on I.S. 227 resumed. An allocation for the continued construction of I.S. 227 was contained in the July 1, 1976, capital budget, but because of problems with the contractors, the actual construction of I.S. 227 did not resume until May 1977.
What is most striking about the impasse between District 24 and District 30 and about the course of the interdistrict consultations leading up to that impasse is the unyielding nature of District 24's position: its continued insistence that it wanted I.S. 227 to be a zoned school and that it would only send children from the northern and generally northeastern part of the District to I.S. 227. In the face of repeated warnings from District 30 that the Central Board would not accept I.S. 227 as a minority segregated school, District 24 steadfastly resisted any notion of internal rezoning of the District so that it might send a racially mixed group of students from District 24 to I.S. 227 taking the position that the racial balance of the new school, if there was to be such a balance, was the problem of either District 30 or the Central Board. Further, District 24 showed no signs of real interest in even exploring District 30's suggestion of a magnet school which District 30 felt might enable I.S. 227 to open as an integrated school without compulsory bussing of students.
This court finds that the position adopted by District 24 officials in the interdistrict consultations with District 30 with regard to the tenanting of I.S. 227, as detailed above, was influenced by the heavily minority composition of the student body in the north-northeastern part of District 24 and was, to a substantial degree, motivated by a desire to keep that heavily minority student body separate from the predominantly white student body in other parts of District 24. This court recognizes that there may be legitimate, racially neutral reasons why school officials and parents may embrace the concept of the neighborhood school. Some of those reasons, such as a preference for children walking rather than taking transportation to school, may also have been factors in District 24's position. However, the single-minded tenacity with which District 24 officials insisted that they would zone students to I.S. 227 only from the immediately surrounding and heavily minority area, even in the fact of repeated and reasonable assertions from District 30 officials that such a zoning plan would not be acceptable to the Central Board of Education, indicates to this court, together with the other evidence discussed in this opinion, that District 24's espousal of a neighborhood school zone in the context of the discussions concerning I.S. 227 was not a dispassionate position resulting solely from an evenhanded concern that all students should attend schools close to their home, but rather was to a substantial degree the expression of racial prejudice and of a desire to maintain the racial segregation which had been established in the schools of District 24 as the result of demographic patterns.
The difficult course of the negotiations between District 24 and District 30 with regard to I.S. 227 also places in a different perspective the persistent refrain of District 24 Board members between 1973 and 1975, already referred to, that the answer to the overcrowding problem at I.S. 61 was the still-to-be-completed I.S. 227. At the time the District 24 Board members were sidetracking other proposed solutions to the school's overcrowding, they knew that there was serious opposition from District 30 to their plan for tenanting I.S. 277, and they also knew that the concurrence of District 30 in District 24's tenanting plans was necessary unless both districts were to be superseded by the Central Board of Education. Thus, in the 1973-1975 period, District 24 had no assurance that it would be able to send large numbers of minority children from the I.S. 61 area to I.S. 227. Nevertheless, in their response to the problem of overcrowding at I.S. 61, the majority of District 24 Board members acted as though they had absolute assurance of being able to zone students to I.S. 227 in that fashion and never seriously considered any alternative avenues of providing relief for even some portion of I.S. 61's overcrowding problem within District 24 itself.
This attitude by defendant local School Board officials again suggests not a dispassionate, evenhanded ...