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May 19, 1981

George ARTHUR et al., Plaintiffs,
Ewald P. NYQUIST et al., Defendants

The opinion of the court was delivered by: CURTIN


"We support integration as the priority education strategy; it is essential to the future of American society. In this (1967) summer's disorders we have seen the consequences of racial isolation at all levels, and of attitudes toward race, on both sides, produced by three centuries of myth, ignorance, and bias. It is indispensable that opportunities for interaction between races be expanded."

 Report of the National Commission on Civil Disorders, at 25 (Bantam ed. 1968).

 There has been much progress in race relations since this statement was written, particularly in Buffalo. However, we must remain circumspect as too many students of history, beginning with deTocqueville, have predicted that this issue would bring down The Republic. *fn1" No community or community leader can remain sanguine while skin color remains a political issue.

 Ever since the finding of this court in 1976 that the defendants had for many years intentionally caused and maintained a segregated school system, the defendants have been under court order "to come forward with a plan that comports with the Constitution" that would remedy the segregation in the Buffalo public schools which remains from the past. From the outset, the primary responsibility for producing such a plan has been with defendants. The court has repeatedly acknowledged that "it does not have the specialized training, the knowledge or the experience that belong to defendants." Arthur v. Nyquist, 415 F. Supp. 904, 969 (1976). The limited nature of the court's function has been clearly delineated by the United States Supreme Court:

(T)he initial responsibility for devising an adequate desegregation plan belongs with the school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default.

 Milliken v. Bradley, 418 U.S. 717, 809, 94 S. Ct. 3112, 3158, 41 L. Ed. 2d 1069 (1974) (Marshall, J., dissenting) (emphasis added).

 The task before the court today, as it has been three times before in this litigation, is to review the adequacy of the Board of Education's plan, Phase IIIx.

 In each of the plans put into effect since 1976, steady and impressive progress has been made in developing a final plan for remedying past segregation. The most recent plan which was put into operation, dubbed Phase III, was tentatively approved by my orders of June 19, 1980 and August 8, 1980. The court specifically conditioned its approval of the Phase III plan upon defendants continuing to meet with plaintiffs in an effort to resolve their differences. In addition, the court reserved decision on plaintiffs' motion to set a date of September 1981 by which all schools in Buffalo must be desegregated "pending consideration of the progress of the settlement discussions." Order of June 19, 1980 at 4.

 Notices of appeal were filed on July 18 and August 12, 1980 by plaintiffs. This ousted the district court of jurisdiction. *fn2" Oral argument took place before the Court of Appeals on December 12, 1980. On January 5, 1981, the Court of Appeals remanded the case back to the district court with instructions to make specific findings of fact. Arthur v. Nyquist, 636 F.2d 905 (2d Cir. 1981). It also noted in passim that "too many years have elapsed since this litigation commenced." Id. at 905. From this and other observations by the Court of Appeals, it is obvious that time is of the essence in finding a final remedy.

 In light of these comments, the district court in camera again asked the defendants to speed up the time schedule in their Phase III proposal, in the hope that a settlement might be reached and need for further recourse to the Court of Appeals obviated. At the same time this court advised the parties that their detailed assistance would be required in drafting proposed findings of fact. *fn3" Vigorous negotiations ensued. There was much behind-the-scenes cooperation between parents, teachers, plaintiffs, and the Board of Education and its staff. As a result of these discussions, the Board proposed an expedited version of its earlier Phase III plan dated January 27, 1981 ("Phase IIIx"). It was approved by a majority of the Board on February 4, 1981. If ordered into place, this plan would impose fixed assignments effective September 1981. *fn4"

 Plaintiffs subsequently were given an opportunity to critique the plan in writing; a response was filed on March 5, 1981. *fn5" In the interim, the Board passed a resolution (1) directing that the court be informed of the decreasing likelihood of its being able to implement the Phase IIIx proposal and (2) requesting a year's delay in its implementation "in order to get the plan set." *fn6" See "Excerpt From Board Meeting of 2/18/81," Exhibit 673 at 1 and 5.

 As a result of the negotiations, the parties prepared a number of orders for the court's signature. On March 27, 1981, the court issued an order setting forth the three alternative school desegregation plans which had been proposed by the parties. The court directed that there be a public hearing on the three alternative proposals. The hearing took place on April 7, 1981 and lasted an entire day. The defendants presented testimony as to why implementation of the Phase IIIx plan should be delayed until September 1982. There was also much discussion of Schools 43 and 78. Mr. Eugene Reville, the Superintendent of Schools, explained that the Board would be in a better position to implement the plan in 1982. He stated that the Board would be able to demonstrate to the community the success of its Early Childhood Center and academy programs, thereby convincing parents to send their children voluntarily to the affected schools. He argued that this would be consistent with the court's directives to date. However, both he and Mr. Joseph Murray, the Associate Superintendent of Schools, conceded under cross-examination that the Board of Education would be able to implement the Phase IIIx plan as originally proposed for September 1981, if ordered to do so.

 By decision filed April 16, 1981, the court rejected the plan which would have in effect exempted Schools 43 and 78 from the overall systemwide fixed assignment plan. This had the effect of eliminating one of ...

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