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August 21, 1981

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

The opinion of the court was delivered by: CURTIN

In April of 1976, this court held that the Buffalo Board of Education and the City of Buffalo were guilty of intentional racial segregation of the Buffalo Public School System (BPSS). The court's findings of fact and conclusions of law are fully reported in Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y.1976), aff'd 573 F.2d 134 (2d Cir. 1978), cert. denied Manch v. Arthur, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978). Numerous decisions have followed the original liability finding in an attempt to fashion a comprehensive and acceptable remedy. These decisions include my orders of March 26, 1979 and August 8, 1980, concerning staff hiring procedures adopted by the Board of Education subsequent to the liability decision.

The original decision contained a finding that non-white teachers, principals, and support staff were underrepresented in the BPSS and that the Board's failure to increase the minority teaching percentage was an intentional act of discrimination. Arthur v. Nyquist, supra at 944-48. In each of my orders following this decision and at numerous meetings among the parties, the court has expressed its concern that the efforts of the Board to recruit and place minority teachers and staff personnel have been inadequate.

 The history of the efforts made by the court and the parties to develop an affirmative action plan has been detailed in my prior orders. See orders of May 4, 1977, March 14, 1978, and February 23, 1979. The issue culminated finally in my order of March 26, 1979, which imposed a one-for-one hiring and recall goal upon the Board, to be continued until the ratio of minority to majority school personnel reflected the same ratio existing in the general community. The defendants were ordered to submit a plan which would comply with the following guidelines:

(The defendants shall adopt) 21% as the long-term percentage goal for the hiring and promotion of minority administrators, professional staff, and other staff. This figure shall be revised, if necessary, when the results of the 1980 census have been tabulated.
The defendants shall determine the minority percentage of their full and part-time staff for each job category (e.g., principals, elementary classroom teachers, and custodians) and identify each category in which the minority composition is less than 21%. In accordance with their proposal, the defendants shall hire and promote one minority for every non-minority in the identified job categories until the long-range goal has been achieved. The one-for-one interim goal shall also apply to the rehiring of provisional teachers and to the rehiring of non-tenured teachers who were laid off as a result of the budget cutbacks instituted in July, 1978. See the court's order of February 23, 1979.
In meeting these goals, the defendants shall not be required to hire or promote any minority candidate who is not qualified for the position, as the job qualifications are currently defined by the Board. But defendants are directed to continue reviewing their selection criteria in order to minimize their impact on minority candidates (see Board's "Statement of Commitment," filed December 18, 1978) and to report to the court in writing on July 1, 1979 on their recommendations, if any, for changes in the selection criteria.

 The Board and the plaintiffs jointly submitted a plan which complied with these guidelines. The plan was approved by the court as modified on August 8, 1980, and supplements my order of March 26, 1979. The Buffalo Teachers Federation (BTF) has noted some objections to the plan.

 The motion currently before me concerns hiring and promotion practices adopted by the Board in August of 1979 and utilized during the 1979-80 school year. This motion was originally brought in New York State Supreme Court by the BTF in September of 1979. It was removed from the state court and consolidated with this case by order of the court. Buffalo Teachers Federation v. Bd. of Ed. of City of Buffalo, 477 F. Supp. 691 (W.D.N.Y.1979).

 In its motion, the BTF claims that the Board of Education violated provisions of New York Education Law by its failure to appoint as probationary teachers certain qualified individuals who met the requirements for appointment and had been placed on the eligibility lists as mandated by state law. In addition, the BTF alleges that the Board of Education has breached the collective bargaining agreement existing between them by its actions regarding the hiring of temporary and probationary teachers and recall of teachers who had been excessed. According to the BTF, both tenured teachers and the individuals whose names were placed on the eligibility lists have vested rights under the bona fide seniority system established by the collective bargaining agreement, which rights have been violated by the Board.

 After the case was removed to this court, the BTF continued to process the grievances of the individual teachers through the grievance/arbitration procedures of the collective bargaining agreement. These grievances were ripe for arbitration by April of 1980. The Board requested a stay of the arbitration proceedings from this court. The BTF meanwhile moved for summary judgment on its complaint. The motion for summary judgment was denied. The Board's request for a stay of the arbitration proceedings was granted, but only temporarily. Because many issues regarding the proper construction of the collective bargaining agreement and state education law were presented, the court concluded that it would be advisable to have an arbitrator's interpretation of the contractual provisions relating to seniority, excessing of teachers and the applicable state education law relating, especially, to hiring of probationary and temporary teachers. Accordingly, the parties were directed to present their grievances before an arbitrator pursuant to the provisions of the collective bargaining agreement. The arbitrator was instructed to render his decision without regard to the March 26 order of this court. Order of August 8, 1980.

 In compliance, a hearing was held on January 28, 1981, before Arbitrator Thomas N. Rinaldo. Both the Board and the BTF appeared at the hearing. Testimony was taken from Ms. Edith Levin, an Assistant to the President of the BTF, and Mr. Frank Aquila, a Uniserve Director of the BTF who testified concerning the traditional hiring practices of the Board of Education.

 Arbitrator Rinaldo delineated the following questions as those presented by the parties for resolution:

 (1) Must the Board of Education fill permanent vacancies with probationary appointments from teachers placed on eligibility lists?

 (2) Where a permanent teaching vacancy exists, is the Board of Education required to make a ...

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