New York City Board of Education and New York State Commissioner of Education appeal from the decision in the Eastern District of New York invalidating the Board's voluntary desegregation plan for Andre Jackson High School. Reversed and remanded. Judge Winter dissents in a separate opinion.
Before: LUMBARD, WINTER and PRATT, Circuit Judges.
Defendants New York City Board of Education and New York State Commissioner of Education appeal from the decision in the Eastern District of New York, Constantino, J., invalidating the Board's plan for reassigning students of Andrew Jackson High School to other City high schools, on the ground that defendants failed to justify as necessary at least one of the racially restrictive provisions of the plan. We reverse and remand for further proceedings.
This case originated in June, 1976, as a class action filed on behalf of students and parents in the Andrew Jackson High School District in Queens, New York, challenging the constitutionality of a proposed school desegregation plan voluntarily adopted by defendant New York City Board of Education, and approved by defendant State Commissioner of Education Gordon Ambach. The genesis of the plan, known as the "1976 Controlled Rate of Change Plan," is explained in detail in two opinions in an earlier stage of this litigation, Parent Ass'n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 710-711 (2d Cir. 1979), reversing in part, 451 F. Supp. 1056, 1063-69 (E.D.N.Y. 1978).
In brief, the minority enrollment at Andrew Jackson High School, which had been 18% in 1957, steadily increased over the next two decades until, by 1976, it exceed 99%. Beginning in 1963, the New York City Board of Education ("the Board") adopted a succession of plans to stem Jackson's acceleration toward an exclusively minority student population, by transferring white students in from other zones. As the statistics show, none of these plans was successful. In 1973, the Board finally abandoned the hope of integrating Jackson.*fn1 Instead, it developed a "Choice of Admissions" scheme, under which minority students in the Jackson zone had the choice of attending any of a number of receiving schools at which the minority population was lower than at Jackson, and the influx of additional minority students would not destroy whatever racial balance currently existed.
With revisions in 1975 and 1976, the scheme became the "1976 Controlled Rate of Change Plan" ("the Plan") at issue here. The Plan was intended to balance the goal of placing Jackson's minority students in integrated schools of their choice, against the perceived reality that if the minority enrollment in an individual receiving school increased toorapidly or reached a critical absolute level (the so-called "tipping point"), white students would leave the receiving school at an increasing rate. By controlling both the rate and extent of change in racial composition in the receiving schools, the Board hoped gradually to transfer most or all of the student population out of segregated Jackson, without at the same time triggering resegregation of currently integrated receiving schools, thereby giving the largest number of children an integrated education over the longest period of time.
The Plan provided that Black and Hispanic students residing within the Jackson school zone could elect to attend any New York City high school not already overenrolled, in which (1) the percentage of white students in the school exceeds either 50% of the school population or the borough-wide average in the borough in which the receiving school is located (whichever is higher); provided further that (2) the admission of such students, coupled with the admission of minority students from other integration programs and/or through demographic changes in the attendance area servicing the school, will not (a) decrease the receiving facility's white/minority ethnic balance by 4% or more in any one school year, or (b) produce a rate of change in any one year that exceeds one-fourth of the difference between the school's current white enrollment and a 50% white enrollment, whichever is less. At the same time, it provided that white students in the Jackson zone could elect to attend any City high school in which the percentage of white students is lower than either the borough's white percentage or 50% of the school population, whichever is less.
In June 1976, students and parents at Jackson filed this class action against the Board of Education and the State Commissioner of Education, charging (in relevant portion here) that the Plan's imposition of a racial quota against the admission of minority students to potential receiving schools violated the equal portection clause of the Fourteenth Amendment. This district court, agreeing with plaintiffs, invalidated the Plan as unconstitutional. Although acknowledging that the Board's goals in adopting the Plan were benign, the court held that by "limit[ing] minority pupils' access to schools because of their minority status in order to provide integrated schooling for as long as possible to a progressively limited number of minority and other students," the Plan impermissibly recreated "a dual school system" of integrated and segregated schools. 451 F. Supp. at 1080-81.
On appeal, we reversed, holding that the Plan's aim "to promote a more lasting integration is a sufficiently compelling purpose to justify as a matter of law excluding some minority students from schools of their choice under the obviously race-conscious Rate of Change Plan." 598 F.2d at 719. However, the court remanded for several factual determinations concerning specific provisions of the Plan, including the two relevant here: (1) whether the Board had shown a factual justification for its choice of a 50% tipping point; and (2) whether demographic projections supported the Board's determination that the maximum allowable rate of change in racial composition of a school should be set at the lesser of 4% or 1/4 of the difference between the current white enrollment and 50% white enrollment.
On remand before Judge Dooling in February 1980, the Board provided extensive statistical data to support both determinations. In respect to the 50% tipping point, the Board submitted two exhibits to substantiate its claim that white students dropped below 50%. The first, Exhibit 3C, compared the rates of change for each City high school when and if it was between two 30-point intervals of ethnic composition -- 80%-50% white, and 50%-20% white -- during the years 1957-1978. As explained by Philip Tama, the Associated Director of Statistics and Demographics in the Board's Office of Zoning and Integration, the Exhibit revealed that most individual schools experienced a sharp increase in the annual rate of change when they moved from the 80%-50% range to the 50%-20% range.The city-wide interval average (equal to the mean of the schools' averages within each interval) showed the percentage of white pupils per year declined that at an average rate of 2.94% per year during the period that schools were in the interval from 80%-50% white; and declined at an accelerated average rate of 5.54% during the period they were in the interval from 50%-20% white. The second, Exhibit 3E, broke down the two 30-percentage point intervals in Exhibit 3C into six 10-percentage point intervals.The city-wide averages figures revealed a steady increase in the decline in the percentage of white pupils in the first three intervals (3.67% from 80%-70%; 4.42% from 70%-60%; and 4.80% from 60%-50%), and a marked increase in such decline in the fourth interval (6.06% from 50%-40%).*fn2
In respect to the 4% maximum allowable annual rate of change, Joseph Elias, Director of the Board's Office of Zoning and Integration, testified that the intent of the Board in limiting the rate of change was to approximate the 3% natural rate of change (through attrition) that the schools were experiencing at the time. He noted further that the 4% figure referred to the school as a whole (i.e., all four classes), not simply the entering class that contained the new minority transfer students. As a result, the entering class could actually absorb up to a 16% decrease in white enrollment annually without exceeding the 4% ceiling.
In addition, in support of both the 50% tipping point and the 4% rate of change, the Board submitted Exhibit 4, comparing the actual experience in Queens receiving schools since the Controlled Rate of Change Plan went into effect in 1976,*fn3 with projections of what would have happened had all minority students been granted their first choice assignments without regard to extent or rate of change. (Computations were done only for Queens high schools because virtually all the students who otherwise would have gone to Jackson designated another Queens high school of their first choice.) As explained by Elias, whose office prepared the Exhibit, the limitations on extent and rate of change had two desirable effects on integration. They greatly slowed the rate of decrease in white enrollment for those receiving schools that were below the 70% point prior to 1976, in several cases avoiding a projected precipitous drop to well below the 50% mark; and they nearly equalized the racial balance in all receiving schools, by decreasing more sharply the white enrollment in the few schools that have been well above 70% white in 1975.*fn4 As a ...