The opinion of the court was delivered by: LOWE
MEMORANDUM OPINION AND ORDER
The parties to this civil rights class action apply for approval of a proposed settlement under Rule 23(e) of the Federal Rules of Civil Procedure ("F.R.C.P.").
Plaintiffs commenced this action on November 14, 1974 as a class action, pursuant to F.R.C.P. 23(a) and 23(b)(2), on behalf of all minority students in the School District of Newburgh, New York.
The members of the class are all minority students attending schools in the Newburgh School District and their parents. Defendants are the Board of Education of the City District of Newburgh, the Board's members, the Superintendent of Schools, the principal and vice-principal of North Junior High School of the City District of Newburgh.
All of the defendants are sued in their official capacity.
The Complaint alleges, inter alia, that certain policies and practices of the School District violate the constitutional rights of plaintiffs. The principal allegations are: (1) the School District violated the First and Fourteenth Amendment rights of plaintiffs by "subjecting and/or threatening to subject" them to suspension or expulsion from school for criticizing the policies of the Newburgh school system. Plaintiffs allege that these threats have had and continue to have a "chilling effect" upon the exercise of their First Amendment rights; (2) the School District imposes discipline on a racially discriminatory basis in violation of the due process and equal protection clauses of the Fourteenth Amendment; (3) the School District employs procedures in suspension hearings which violate the due process clause of the Fourteenth Amendment and § 3214 of the New York Education Law; (4) the School District fails to provide equal educational opportunities to plaintiffs in violation of the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq.; (5) the School District, by its acts and omissions, has violated rights guaranteed plaintiffs by Section 601 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d.
The Complaint seeks: (1) a declaration that the alleged acts of the School District are illegal and unconstitutional; (2) preliminary and permanent injunctive relief restraining the School District from engaging in such action; (3) preliminary and permanent injunctive relief requiring the defendants (a) to expunge all records of disciplinary action taken by the School District against plaintiffs, and (b) to submit an affirmative action plan detailing policies and procedures which will be implemented to eliminate the alleged discriminatory conduct; (4) an award of attorney's fees and costs.
The defendants, in their Answer, deny the material allegations in the Complaint, and allege the following as affirmative defenses: (1) the Complaint fails to state a claim upon which relief can be granted; (2) the individual members of the School Board of the Newburgh School District are immune from liability; (3) certain named plaintiffs are barred from proceeding as party plaintiffs; (4) plaintiffs' claim pursuant to Section 601 of the Civil Rights Act is barred (a) by the Statute of Limitations, (b) because plaintiffs have failed to exhaust their administrative remedies, (c) because plaintiffs lack standing; (5) plaintiffs' claim pursuant to the Equal Educational Opportunities Act is barred by plaintiffs failure to exhaust their administrative remedies; (6) plaintiffs' claim pursuant to § 3214 of the New York Education Law is barred by plaintiffs failure to exhaust their administrative remedies; (7) the Court lacks subject matter jurisdiction insofar as jurisdiction is predicated on 28 U.S.C. § 1331 and § 1343(4), Section 601 of the Civil Rights Act of 1964, or Section 207 of the Equal Educational Opportunities Act; (8) plaintiffs have failed to join the New York State Commissioner of Education, allegedly an indispensable party to this action; (9) the Court ought not to assume jurisdiction over plaintiffs' pendent state claim because plaintiffs have failed to exhaust their administrative remedies.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, § 1343(3) and (4), § 209 of the Equal Educational Opportunities Act of 1974, and on principles of pendent jurisdiction. Plaintiffs action for declaratory and injunctive relief is authorized by 28 U.S.C. § 2201, § 2202 and F.R.C.P. 57.
In an opinion dated March 19, 1976, this Court (Cannella, J.), after finding that this action met the requirements of F.R.C.P. 23(a) and 23(b)(2), ordered that this action be maintained as a class action pursuant to F.R.C.P. 23(b)(2) on behalf of all minority students attending schools in the Newburgh School District.
Pursuant to the proposed Consent Decree, notice of the proposed settlement was distributed to each class member in Newburgh Free Academy, North and South Junior High Schools, Newburgh, New York on November 1 and 2, 1979. In addition, notice of the proposed settlement was published in The Evening News, a daily newspaper published by the Newburgh-Beacon News Co., Inc. and of general circulation in Orange and Dutchess Counties, New York, on October 31, November 1 and 2, 1979. The notice outlined the terms of the settlement, gave notice that a hearing on these matters would be held November 19, 1979, and informed class members of their right to object to the settlement. Since there were no written objections to the proposed settlement received by the Court, the hearing scheduled for November 19, 1979, was adjourned with the knowledge and consent of both sides' attorneys.
The settlement was negotiated by counsel on both sides with the guidance and approval of their respective clients. Plaintiffs and the School District have agreed to the entry of the proposed Consent Decree which settles all claims against the School District except for the claim of attorney's fees. Agreement to the entry of the proposed Consent Decree does not constitute an admission by any party as to any issue of fact or law regarding discrimination by and/or liability of the School District, nor does it constitute a waiver of plaintiff's claim for attorney's fees against the School District, nor any defenses the School District may have against that claim. Under the agreement, the terms and conditions of the Decree are binding upon each of the defendant officials, their agents, employees and representatives, and upon their successors in office without the necessity for formal substitution.
The terms of the proposed Consent Decree provide:
1. This Court has jurisdiction over the subject matter of all of plaintiffs' claims against the School District and jurisdiction over the persons of the defendants with respect to these claims.
2. Pursuant to Rule 23(c)(3) of the Federal Rules of Civil Procedure, the class to which this decree applies is defined as: all minority students attending schools in the Newburgh City School District.
3. For the purposes of this Decree, the following definitions shall apply unless a contrary meaning is indicated in the text:
(a) "suspension" shall mean exclusion from school and/or regular classroom attendance including participation in in-school suspension programs such as Project Rescue;
(b) "minority" shall mean a member of the black and/or Hispanic race;
(c) "suspension rate" shall mean the ratio of the number of students suspended at least once to the number of students in the relevant school population;
(d) "disparities" shall mean difference; the mention of the word disparities in no way constitutes an admission by the defendants that such disparities exist.
(e) "entry of this Decree" shall mean the signing of this Decree by the Court."
A. Selection and Contract
4. The District shall contract with an individual or group, hereinafter the "consultant" which shall assist in meeting the goals and carrying out the provisions of this Consent Decree.
5. The plaintiffs shall nominate candidates to act as consultants. Such candidates shall have as minimum qualifications a Bachelor's Degree and a background in both education and human relations. No candidate may reside within the district. The School District shall select one of the nominees unless they can show good cause for rejection of all plaintiffs' nominees. In such case, plaintiffs shall make additional nominations. The School District shall have the option to contract with the consultant on a full time or part time basis. The terms of the contract shall be in accord with the provisions of this Decree and shall be approved by both parties. The terms of the contract with the consultant shall be until June 30, 1981 unless the "Goals" set forth in paragraph 30 are met sooner. In the event the time table, set forth in paragraph 30, is not met and a new timetable is set, the term shall be extended in accordance with the new timetable.
5a. The School District shall have the right to recommend candidates to the plaintiff for the position of consultant.
6. The consultant shall be selected and the contract approved by both parties within 45 days of the entry of this Decree.
7. If the School District or the plaintiffs find that the consultant is not complying with the terms of this Decree, the parties shall meet to resolve the situation and may choose another consultant.
8. The consultant shall advise the defendants of and develop written plans for all steps necessary to the elimination of the racial disparities in suspension rates at Newburgh Free Academy, North Junior High School and South Junior High School.
9. The consultant shall meet with students, parents, teachers, administrators, Board of Education members, and attorneys for both parties in order to assess what is necessary for the elimination of the racial disparities in suspension rates. The consultant shall continue to consult with the above-named individuals during the course of the contract.
10. The consultant shall work with each building committee, established pursuant to this Decree, to identify policies and practices which account for disparities in suspension rates for minority students.
11. The consultant shall develop proposals for the elimination of the racial disparities in suspension rates and shall:
a. present those proposals in writing to the building committees established by this Decree;
b. work with the committee to insure the proposals meet the needs of the respective schools;
c. modify the proposals if appropriate in view of the advice of the committee;
d. present the proposals in writing to the Superintendent of the School District for approval.
12. If the Superintendent rejects or modifies the proposal, or fails to act on it within 7 days of submission to him, the consultant and/or building committees may present the proposal to the Board of Education for its approval or rejection.
13. The consultant's written proposals for the elimination of the racial disparities in suspension rates shall include but not be limited to:
a. Modifications of the "Right to Learn", the School District's student behavior code, including the simplification and clarification of its provisions to make it more easily understood by students and parents and the reduction of the use of suspensions and other methods of discipline which remove students from the classroom;
b. Design of in-school alternatives to suspension including modifications in Project Rescue;
c. Involvement of students in peer discipline such as through a student team system and/or student monitors;
d. Greater involvement of guidance counselors in the discipline process;
e. Greater involvement of parents and student advocates in the discipline process;
f. Assistance to teachers for classes with large numbers of discipline referrals;
g. Tutoring arrangements for students with achievement related behavior problems;
h. Referral of students to psychological services;
i. Encouragement and facilitation of interracial participation in all student extracurricular activities;
j. The possibility of alternatives to methods of academic grouping that lead to classrooms with racially homogenous student populations or classrooms with predominant minority populations.
14. At the time performance of the contract begins and thereafter the School District shall supply the consultant with all statistical and other information available to it which deals with discipline, including:
(a) all written policies presently in effect;
(b) access to all student guidance files; as allowed by the Court in its order of September 7, 1977 and this Decree;
(c) current summaries of suspensions and those which have been prepared in the past five years by the Superintendent's Office;
(d) current suspension logs and those which have been prepared in the past five years by principals of the schools;
(e) any other information necessary to the function of the consultant.
15. Plaintiffs, through their attorneys, shall furnish to the consultant all statistical information they have compiled in the course of discovery in this action.
16. At the conclusion of each school semester the school district shall furnish to the consultant:
a. a suspension log showing for each suspension by a principal or the Superintendent: name of the student, race, grade, referring teacher, offense, date of suspension, suspending official, date of return to school and length of suspension;
b. for each referral to Project Rescue or other in-school suspension programs: the name of the student, race, grade, referring teacher, reason for referral, school.
c. for each teacher the number of disciplinary referrals of students to an administrator by race of the referred students.
17. The consultant shall arrange for the School District to contract for training in race relations and in strategies for handling discipline problems for all teachers and administrators. He/she shall arrange for such training by a group and on terms mutually agreeable to the School District and plaintiffs. Such training shall commence within 45 days of the signing of the contract between the School District and the consultant.
18. The consultant shall arrange for the School District to contract for the training of parents and students who participate on the building committees in order to enable them to participate effectively. He/she shall choose a group to do the training subject to the approval of the Board of Education. Such training shall commence within 45 days of the signing of the contract between the School District and the consultant.
19. The consultant shall prepare written reports at the end of each school semester for both the School District and the plaintiffs on the progress in meeting the goals set forth in this Decree. Such reports shall include the following:
a. the suspension logs prepared by the building principals, the other information furnished for that semester as set forth in paragraph 14 above;
b. the steps taken thus far to eliminate the racial disparities in suspension rates;
c. the immediate steps that need to be taken;
d. copies of all proposals presented during that semester to the building committees, the Superintendent, and/or the Board;
e. all policies adopted by the Board and/or the Superintendent during the semester.
20. A committee on discipline shall be established for each building: Newburgh Free Academy (NFA), North Junior High School (NJH) and South Junior High School (SJH).
21. Each Building Committee shall be composed of: one (1) teacher, four (4) students, four (4) parents of students within the particular building, one (1) community representative, and the principal of the building. Three (3) students, three (3) parents and the community representative shall be chosen by the plaintiffs. One (1) student, one (1) parent and one (1) teacher shall be chosen by the School District. A representative of the superintendent may attend the meetings as a non-voting participant.
22. The committee shall be convened within 20 days of the entry of this Decree by the principal of the building.
23. At its first meeting each committee shall elect a chairperson who along with the consultant shall have the power to convene the committee. The chairperson shall not be the principal of the building.
24. Each committee shall meet at times convenient to the majority of its members, including evenings and weekends. The School District shall provide a suitable room in the respective building for each committee meeting.
25. Each building committee shall review all discipline policies in effect in the building, shall propose necessary changes to the consultant and shall make recommendations to the consultant on any proposals presented by the consultant and on any matters set forth in paragraph 13.
26. Each building committee shall consult with and report the view of as many students, parents in the building as possible. To this end the committees may schedule workshops and meetings for students, parents, teachers and administrators. The School District shall provide facilities necessary for such meetings.
27. Each committee shall be supplied by the School District with the information set forth in paragraph 14 which pertains to the respective building.
28. The School District shall adopt the goal of eliminating the racial disparities in suspension rates by reducing the overall number of suspensions.
29. For the purposes of this section (III), suspension rates shall be calculated as set forth in paragraph 3(c) except that suspensions for physical assault on a teacher or student and possession of illegal drugs, alcohol or weapons on school property, shall not be included in calculating the suspension rates.
30. The elimination of the racial disparities in suspension rates by the reduction of the overall number of suspensions shall be accomplished according to the following timetable of goals:
a. June 30, 1980 at each school (NFA, NJH and SJH) the difference between the suspension rate of the minority student population and that of the white population shall be reduced to 0.20;
b. January 31, 1981 at each school (NFA, NJH and SJH) the difference between the suspension rate of the minority student population and that of the white population shall be reduced to 0.10;
c. June 30, 1981 at each school (NFA, NJH and SJH) the difference between the suspension rate of the minority student population and that of the white population shall be zero except a difference of 0.05 due to statistical random variation shall be acceptable.
31. The School District shall provide a written report to the plaintiffs and the Court on July 30, 1980 and July 30, 1981. The report shall set forth the suspension rates by race, and, if necessary, the reasons why the goals have not been met and the actions to be taken to insure the goals will be met. At that time, plaintiffs may request that the Court order defendants to take whatever other actions are necessary.
32. The Board shall take whatever steps are necessary to hire more minority teachers, including but not limited to those steps recommended by the consultant which are consistent with the District's collective bargaining agreement, New York State Law and Commissioner of Education's Regulations on certifications. To this end, the Board shall adopt a resolution that it will, when hiring staff, seek out individuals who have demonstrated ability to work with minority students, and in furtherance of this goal, affirmatively recruit minority staff who have demonstrated this ability.
33. The Board shall report to the building committees and plaintiffs by September 30 of each year: the total number of teachers hired, those teachers hired preferentially according to the terms of the collective bargaining agreement with the Newburgh Teachers Association, the subject and grade ...