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August 27, 1982

GEORGE ARTHUR, et al., Plaintiffs,
EWALD P. NYQUIST, et al., Defendants

The opinion of the court was delivered by: CURTIN

In what threatens to become an annual ritual, the Buffalo Board of Education [the Board] is forced to ask this court to order its codefendants, the Mayor and the Common Council of the City of Buffalo, to provide additional funds to the Board for implementation of this court's school desegregation orders.

 For the 1982-83 school year, the Board requested a budget of $162,302,979. Pursuant to the budgetary process of the City charter and section 2576 of the New York State Education Law, the Mayor received this request from the Board. The Mayor and his staff reviewed the budget, held a public hearing, and recommended that the estimate be reduced to $150,000,000. After conducting additional public hearings, the Common Council added $629,822, bringing the total to $150,629,822. This is the sum currently appropriated for Board use. Approximately $149,100,000 is to be used for Board operations and maintenance, and the remainder for capital expenditures.

 Under the law, the Board is financially dependent upon the City for funds. The Board has since indicated that it could operate on a minimum budget of $156,500,000. The Board cannot, however, make up the difference between the amount it needs and the amount allocated in the budget but must look to the City for adequate funding.

 Because of the large gap in funds, plaintiffs filed a motion requesting that the court order the City to provide additional funds. Last year, the same dispute arose regarding funds. On July 30, 1981, the Board filed a similar petition asking for more money. Last year's dispute was settled amicably. After several meetings and much discussion, the court was able to enter an order upon consent of the parties directing the City to provide an additional $3,100,000 to the Board.

 This year, there was no such agreement. The Board joined in the plaintiffs' motion, and at the court's direction, the parties conducted settlement negotiations for six days. These negotiations were ultimately unsuccessful, and the court was forced to order an evidentiary hearing. The hearing commenced on July 2, 1982, and continued for six days. Upon review of the transcript and exhibits and the post-hearing briefs, the court is ready to issue a decision.

 In approaching the current controversy, some of the history of this ten-year-old school desegregation case should be kept in mind and bears repeating.

 In April of 1976, the Buffalo Board of Education was found to have engaged in deliberate and unconstitutional segregation of the Buffalo Public School System [BPSS]. See Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y. 1976), aff'd in part, rev'd in part, remanded in part, 573 F.2d 134 (2d Cir. 1978). After this finding of liability, the court and the parties immediately set out to devise a fair and effective program to remedy the effects of the prior unconstitutional segregation. As early as May, 1976, the court held hearings to help formulate a remedial plan. Further hearings were held throughout the spring and summer of 1976. From that time on, the court has had numerous hearings and dozens upon dozens of meetings with the parties to hammer out the details, to further refine, and to set in motion an adequate plan for desegregation. *fn1"

 After the liability finding, the court ordered the Board to submit an initial plan for desegregation, and the Board responded by coming forward with Phase I. This plan closed ten schools in an effort to save money and to integrate previously all-majority schools. In addition, Phase I opened two Magnet Schools, the Waterfront School and City Honors.

 In September of 1977, Phase II was implemented. Phase II included eight Magnet Schools. Phase II was designed to insure that each school had at least 20 percent minority students in attendance.

 In June of 1979, the court ordered that complete desegregation take place. The court ordered the Board to design a system-wide remedy and held that a school would not be considered as desegregated and acceptable to the court unless there was over 30 percent and under 55 percent minority population.

 In November of 1979, the Board of Education submitted a proposed Phase III plan. After the decision of the United States Court of Appeals for the Second Circuit was issued in January of 1981, see 636 F.2d 905 (1981), the court ordered the Board to comply with the directives of the Second Circuit and establish a plan that could be put into effect on an expedited basis. Phase III thus became known as Phase IIIx, and its provisions were put into effect a year earlier than originally scheduled. This court approved the implementation of Phase IIIx on May 14, 1981. 520 F. Supp. 961 (W.D.N.Y. 1981), and the plan went into effect in September, 1981.

 The results of these efforts is the highly successful Buffalo model of school desegregation. Under the direct administration of Buffalo Board of Education Associate Superintendent Joseph T. Murray and the supervision of the Superintendent of the BPSS, Eugene T. Reville, the system has implemented several innovative programs. These programs include the Magnet Schools, the Early Childhood Centers, and the Academies. *fn2" In addition, the BPSS has utilized innovative concepts, such as "clustering of schools," and "feeder patterns," so that children attending any one of a number of certain schools in the lower grades will be sent to a specific high school, thus insuring that at both levels the grades will be integrated. Through implementation of these programs, the BPSS has achieved a significant success, and the programs themselves have been applauded by educators throughout the country.

 A key to the success of the plan is the fact that for the most part, the integration of the schools has been achieved by voluntary means. Through the use of innovative educational techniques, the need for fixed assignments and mandatory busing of students has been kept to a minimum. There has been no disruption of the schools, no violence, and no massive "white flight" of majority students from the City. *fn3" Instead, AN ENROLLMENT COMPARISON OF THE BUFFALO PUBLIC AND THE DIOCESAN SCHOOLS 1976-1981

 [SEE MATERIAL IN ORIGINAL] the City schools have improved through the use of these programs, and the proportion of majority to minority students has remained steady, even as the population of the City has decreased.

 It cannot be denied that from an educational point of view, the programs such as the Early Childhood Centers and the Magnet Schools have been successful. They have been developed with a background of solid integration effort and, most importantly, their use has been sanctioned by this court and the United States Court of Appeals for the Second Circuit.

 In reviewing the Board's request for additional funds, then, we begin with the proposition that the BPSS as it currently exists, having evolved over the six years since the court's liability decision, is the preferred, acceptable method of desegregating the Buffalo schools. It is simply too late in the day to expect the Board to dismantle the existing system and set up a new structure. *fn4"

 Through the court's extensive involvement in the case, we have become intimately familiar with the various programs and the system as a whole and are acutely aware of how their quality and reputation affect the success of Buffalo's integration efforts. *fn5" As this court has repeatedly stated, we have no interest in usurping the functions of the Board and could not, under any circumstances, run the BPSS. That job is left to the expertise of the Board and its staff, particularly Mr. Reville and Mr. Murray. Nevertheless, to the extent the programs affect the desegregation efforts, they are the court's concern.

 The court has made clear, too, that it is reluctant to interfere in this funding dispute. As stated in the order of June 30, 1982, before this court can order the Mayor and the Common Council to provide additional funds to the Board of Education, the Board has the burden of showing that these funds are necessary to insure compliance with our orders and with the orders of the United States Court of Appeals for the Second Circuit. With this in mind, we turn to the question of whether the Board has satisfied this burden.

 The Board's primary witness during the hearing was Mr. Joseph T. Murray, the Associate Superintendent for Instructional Services. Mr. Murray has been a witness in this case on many occasions. In addition, he is a constant participant at the meetings which take place among the parties and the court. Throughout the remedy phase, the court has found him to be a thoroughly credible witness. He is, undoubtedly, the most knowledgeable person regarding the desegregation program and its needs. At the time the Phase I Plan was proposed by the Board, there were many predictions that the reliance upon voluntary programs could not work. Mr. Murray was confident that the plan would succeed, and throughout the years, his guidance and insight have proven reliable and invaluable.

 Mr. Murray testified that the Board would not be able to adequately desegregate the schools with an operations appropriation of $149,000,000. In an affidavit submitted to the court on June 1, 1982, he attached a list of projected budget cuts which would have to be made from the instructional division unless the budget appropriation was increased. See Affidavit in Support of May 27, 1982, Order to Show Cause, Exhibit E. This document shows that a number of the items which would have to be eliminated from the BPSS would indeed have a drastic, negative impact upon the school desegregation order.

 The projected cuts include such functions as two elementary school principals, three secondary principals, central office administrators for handicapped education, helping teachers, reading and math specialists, music, art, physical education teachers, librarians, guidance counselors, 52 elementary teachers, and 37 secondary teachers. In addition, Mr. Murray stated that the BPSS would be forced to eliminate 53 pre-Kindergarten teachers and 70 Kindergarten teachers, thus effectively ending the successful Kindergarten and pre-Kindergarten programs.

 In any school system, budgetary cuts of this nature would have a serious impact upon the quality of the school system. If these cuts were to go through as anticipated, there is little doubt that they would have a deleterious effect upon the quality of education offered to the school children of the City of Buffalo. This is especially unfortunate in light of the recent progress made in the quality of education and in the fact that the reading scores and general performance scores of the school children have been steadily improving over the past few years. If this were the only impact, the court could not intervene in this controversy. The Board has demonstrated, however, that these cuts would have a serious negative impact upon the desegregation orders of this court.

 In the opinion of Mr. Reville, Mr. Murray, and the other educational experts of the Board and its staff, the highly successful Kindergarten and pre-Kindergarten programs are a crucial part of the desegregation effort. The City has suggested that the Board "could go a long way towards living within its appropriation by eliminating pre-Kindergarten and all-day Kindergarten." See Brief of the Mayor and the Common Council at 18. The Mayor points out that these programs are not mandated by the Commissioner of Education and that Buffalo has a disproportionately high ratio of students attending these programs, far more than in comparable cities such as Syracuse, Rochester, New York City, or Yonkers. This suggestion of the City completely misses the mark. None of the other cities has the same need to offer full-day Kindergarten or pre-Kindergarten classes in order to attract majority students to implement a school desegregation program. The City has seized upon a list of items supplied to Mr. Richard Planavsky, the Mayor's Commissioner of Administration and Finance, by Mr. Murray, setting out those items which are and are not mandated by the Commissioner of Education (see Exhibit attached to supplemental affidavit of Richard Planavsky) and has apparently taken the view that anything not mandated by the Commissioner of Education may be eliminated in order to save money. This, however, is not an accurate or realistic view of the situation. While the Commissioner of Education is by statute the authority dictating the minimum requirements for the educational system, there are many other obligations which bind the Board and hinder its ability to freely control its expenditures. The Board is obligated to comply with the orders of this court and with various state and federal statutes and regulations, including those recently enacted regarding handicapped children.

 Under federal and state law, handicapped students must be afforded the maximum opportunity for integration with non-handicapped students. See 20 U.S.C. § 1412(5) (B); Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794; 20 U.S.C. § 1401(18); 34 CFR § 300.550, § 300.4, § 104.33. In educational jargon, the placing of handicapped students with non-handicapped students at every possible opportunity is called "mainstreaming" of the handicapped youngsters. Under the law, the school district has the responsibility to provide an appropriate education designed to meet the individual needs of each child. This law is applicable to the school district without regard to the finances available to the Board.

 In addition to the federal and state laws and regulations, the Board is also bound by this court's orders in two pending cases, Andres v. Reville, Civ. 80-482, and Bushey v. City of Buffalo Board of Education, Civ. 81-254.

 A consent order was issued in the case of Andres v. Reville in May of 1982. During the hearing, both Mr. Murray and Mr. Reville testified that the reduction in the teaching staff, which will be required unless additional funds are forthcoming, would be a violation of the consent decree in the Andres case and would also place the school in jeopardy of violating the federal and state law.

 For example, the records show that in the case of children who are severely physically handicapped, it may be necessary to have as few as six children in a classroom, which requires the Board to hire additional staff because these children cannot care for themselves and need both the assistance of the teacher and an aide if they are to receive an adequate education. See Tr., Vol. 6 at 144. Moreover, the consent order in the Andres case requires that an

adequate number of supervisory personnel shall be assigned to the TMR program. Further, a sufficient number of aides and professional staff shall be utilized to accomplish the matters and principles set forth in this agreement. Adequate and appropriate in-service training ...

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