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May 23, 1983

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

The opinion of the court was delivered by: CURTIN

Before the court is plaintiffs' motion to require defendant Board of Education [the Board] to devise a new plan to increase the number of majority students at three remaining racially identifiable elementary schools in the Buffalo Public School System. The Board has responded that it has now achieved the maximum level of systemwide desegregation practicably possible and is unable to devise any new plans which would feasibly increase the number of majority students attending these schools at this time. Upon close scrutiny and a review of the record, and in consideration of the alternatives presented by the parties, the court concludes that the Board has in fact achieved this maximum level of systemwide desegregation practicably possible and that under these conditions, the racially identifiable status of these schools does not offend the Constitution.

 This determination does not mean that the defendants' important work of continuing the desegregation process and improving the quality of education in the Buffalo Public Schools is completed. Nor does it mean that the final chapter in all aspects of this case has been written. Yet, it does mark an important point on the path to achieving a fully integrated and unitary school system, and a system in which all the citizens of Buffalo may take pride.

 Some nine years ago, this court found that the Buffalo Board of Education had operated a de jure racially segregated school system. Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y. 1976). Since that time, the Board has operated under an "affirmative duty to take whatever steps might be necessary" to eliminate all vestiges of past school segregation. Green v. County School Board, 391 U.S. 430, 437, 20 L. Ed. 2d 716, 88 S. Ct. 1689. The clear mandate as expressed by the United States Supreme Court has been to eliminate racial discrimination "root and branch," supra at 438, and to create a system "without a 'white' school and a 'Negro' school, but just schools." Supra at 442.

 During this time, the court's primary role has been to review the school authorities' efforts at achieving this goal. The duty of the court is to safeguard the fourteenth amendment's guarantee of equal protection under the laws and to act as an arbiter of a legal dispute rather than a super school board. This position was first expressed in the court's liability finding, Arthur v. Nyquist, 415 F. Supp. at 910, and has been repeated many times since then. Only if and to the extent that the school authorities defaulted in their efforts would the court substitute its own plan. Milliken v. Bradley, 418 U.S. 717, 809, 41 L. Ed. 2d 1069, 94 S. Ct. 3112 (1974) (Marshall, J., dissenting); Arthur v. Nyquist, 415 F. Supp. at 969.

 In concluding that the Board has achieved the maximum desegregation practicable, it is necessary to review the steps which have been taken in dismantling the dual system and to scrutinize the status of these schools.

 Prior to the initiation of Phases I, II and IIIx, the Buffalo Public Schools had a minority student population of 45.8 percent and were severely racially imbalanced -- 55 of 77 elementary schools, 5 of 6 junior high schools, and 7 of 13 high schools had racial compositions of 80-100 percent majority or minority students. See Arthur v. Nyquist, 415 F. Supp. at 915-20.

 In Phase I, ten schools were closed, attendance zones were changed, and two magnet schools, the Waterfront School and the City Honors School, were established. As an integral part of the overall plan, community participation in the desegregation process has been encouraged. During Phase I, local attorneys, accompanied by School Board representatives and staff, explained the impact of the court's desegregation order to parents at community meetings and solicited parents' involvement and suggestions for changing and improving the school system.

 During Phase II, four more school buildings were closed, formerly segregated schools were paired and clustered, *fn1" and through the Quality Integrated Education Program [Q.I.E.], each predominantly majority school was initially integrated with at least 20 percent minority students. New feeder patterns were created so that elementary school children would attend racially balanced schools and, in subsequent years, racially balanced high schools. Under this phase, five new magnet schools for Grades pre-Kindergarten through 8 were created, *fn2" along with the Montessori School (Grades pre-Kindergarten through 6), the Performing Arts Academy and the Buffalo Traditional School (Grades 5 through 12), the Buffalo Alternative School (Grades 9 through 12), and the Vocational Technical Center (Grades 11 through 12), all as magnet schools. Two regional magnets, *fn3" the Native American Magnet School (Grades pre-Kindergarten through 8) and the Spanish-English Magnet School (Grades 1 through 4) were also established. *fn4"

 Additionally, the court established racial composition guidelines for the elementary schools within the system. The goal of this plan was for each school to reflect the racial composition of the district as a whole, and the enrollment figures in 1979 indicated that the Buffalo Public School System was comprised of approximately 50 percent majority and 50 percent minority students. Arthur v. Nyquist, 473 F. Supp. 830, 848 (W.D.N.Y. 1979). The parties and the court recognized that a mathematically perfect balance would be difficult to achieve in every elementary school within the system. Accordingly, racial composition guidelines of 25 to 65 percent minority students attending each elementary school were established, and a school would be considered integrated if minority enrollment was within these guidelines. Id. These guidelines were later changed to 30-65 percent minority students attending each elementary school in the court's order of June 19, 1980, and magnet schools were required to contain a student population equal to 50 percent majority and 50 percent minority.

 When these guidelines were established, the court stated:

Any deviations from this guideline will be allowed only after a specific and detailed showing on a school-by-school basis that practicalities such as distance and difficulties of travel or physical barriers preclude further desegregation. . . . It may be that it will be impossible to rid the system of every [racially identified minority] school, but an attempt must be made and, if this objective cannot be reached, good reason must be set forth in the record.

 Arthur v. Nyquist, 473 F. Supp. at 848.

 Phase II did not always proceed without difficulties. The complexity and problems with Q.I.E. were well documented, see Arthur v. Nyquist, 473 F. Supp. at 837-42. At its zenith, this particular program involved the transportation of 3,000 minority students who were sent to receiving schools across the City, and it became apparent that the burden placed on minority children was neither desirable nor permissible. Further, the complexity of the program had reached the point where it became virtually impossible to administer.

 Additionally, Phase II was not a systemwide remedy, as required under the standards announced in Dayton v. Brinkman, 433 U.S. 406, 53 L. Ed. 2d 851, 97 S. Ct. 2766 (1977). Under Phase II, 15 all-minority elementary schools remained segregated, with no showing by the Board that it would be impractical to desegregate them. As a result, the court directed the Board to

draft a new remedy plan which to the greatest extent practicable will desegregate the all-minority schools. . . . If the Board's position is that further steps to integrate the all-minority schools ought not to be taken, the burden is on the Board to show why these steps cannot be taken and it must compile evidence showing ...

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