UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
November 20, 1985
UNITED STATES OF AMERICA, Plaintiff, and YONKERS BRANCH-NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs-Intervenors,
YONKERS BOARD OF EDUCATION; CITY OF YONKERS; and YONKERS COMMUNITY DEVELOPMENT AGENCY, Defendants (Part 3 of 3)
The opinion of the court was delivered by: SAND
V. THE CITY
The operation of the Yonkers public school system is the legal responsibility of the Board of Education. In practical terms, however, the present condition of Yonkers public schools cannot be understood without examining the manner in which the City of Yonkers, through its elected officials, has been involved in educational affairs. A 1957 New York State Education Department study of the Yonkers public schools concluded that "[t]he people of Yonkers in actual fact have two boards of education operating their schools. The city council and manager constitute one board and the legally designated board of education the other." GX 45, at 17. The City's role in the operation of the school system and the racial consequences of the City's policies and practices concerning both housing and schools, are the subjects of the remainder of our findings.
A. Interrelationship Between Housing Practices and School Segregation
The impact of the City's housing practices has not been limited to the perpetuation and exacerbation of residential segregation in Yonkers. Rather, the City's pattern of confining subsidized housing to Southwest Yonkers and its persistent refusal to locate such housing in other areas of the city has contributed to the perpetuation of school segregation as well.
As with the impact of the City's site selection practices on residential segregation in Yonkers, the evidence suggests that the segregative impact of the City's housing practices on the schools was not purely inadvertent, unknowing or unavoidable. While the City is not responsible for the formulation of attendance zones or student assignment policies, it cannot credibly deny its awareness of the Board's adherence to a neighborhood school policy and the segregative impact of its housing practices on the schools in light of this fact. E.g., Tr. 1100 (Yulish); Tr. 2884-85, 3097-99 (Arcaro); GX 385. On the contrary, the City persisted in its failure to pursue desegregative housing practices, such as scattered site housing, despite the suggestions of school officials and others that such practices were necessary to avoid the segregative impact of the City's geographically confined subsidized housing practices on Southwest Yonkers schools. Alioto Dep. 16-18; Tr. 4323-26 (Barrier); see also Tr. 13,150 (Dodson); GX 272, GX 1094.50 (1970 letter from homeowners' association to City Council and Mayor stating that "[t]he continuance of minority racial concentration in this or any other area can lead to a busing situation in the immediate future which all of us wish to avoid."); C-352. Indeed, the evidence demonstrates more directly that the City's aversion to the desegregative development of subsidized housing in Yonkers was based in part on community opposition to the racial impact which such housing would have had on the East and Northwest Yonkers community, including its schools. Tr. 986 (Iannacone); P-I 106-26 (GX 1063.13); see also HOUSING VII supra ; SCHOOLS V.E.1 infra. The City's segregative housing practices also were adhered to despite an awareness that these practices would result in the enrollment of additional students in physically inadequate Southwest Yonkers schools (e.g., GX 198, 272, 385, 1095.9; P-I 110-9; SCHOOLS IV.A.2.b supra), a condition which resulted in districtwide disparities in school facility utilization and eventually led to the school district administration's formulation of the Phase II plan. That the Board failed to minimize or eliminate the impact of the City's housing practices on the schools in no way negates the fact that, as a factual matter, the City's housing practices contributed to the perpetuation and aggravation of residential segregation and the resulting segregation of the schools. The above evidence, together with the evidence of the City's intentional perpetuation of residential segregation, demonstrates that the City not only was aware of the overall impact of its subsidized housing practices on Yonkers public schools but also intended to preserve the racially segregative impact of these practices on the schools.
In addition to the testimony of the City's expert, Dr. Eric Hanushek, regarding the impact of the City's housing practices on minority residential patterns, the Board's expert, Dr. Armor, analyzed the impact of these practices on Yonkers public schools. Dr. Armor's analysis was designed to determine what the racial composition of particular schools would have been had particular subsidized housing projects not been built. Dr. Armor calculated the number of students (by race) in specific subsidized housing projects and in the school to which these students were assigned. He then recalculated the minority enrollment in the school by hypothetically removing the subsidized housing project and placing a vacant tract of land in its stead, thus reducing the schools's enrollment by the number of students residing in the housing project.
Dr. Armor found that the removal of two subsidized housing projects in 1950 would have had no "significant" (5% or more) impact on the minority enrollment in the schools to which these students were assigned. He found that the removal of four projects in 1960 would have had no significant impact on the affected schools for two projects, and a segregative impact (i.e., a greater percentage minority student enrollment) for the other two projects (Schlobohm and Schools 6 and 12, and Mulford Gardens and School 12). He found that the removal of eight projects in 1970 would have had no significant impact on the affected schools for seven projects and a segregative impact for one project (Phillipse Towers and School 19). Finally, he found that the removal of nine projects in 1980 would have had no significant impact on the affected schools for seven projects and a desegregative impact for two projects (Schools 7 and 19). Based on the above analysis, Dr. Armor concluded that the placement of subsidized housing in Southwest Yonkers did not cause the Southwest Yonkers schools to become increasingly segregated. Tr. 11,882-900.
Like Dr. Hanushek's analysis, Dr. Armor's analysis unduly minimizes the confirmatory impact which the City's government-sponsored housing practices had on the already developing private residential segregation in the city and on the segregation of the schools. Even though the analysis established that minority population growth in subsidized housing projects was generally not more rapid than in their surrounding neighborhoods, it disregards the extent to which the City's geographically uniform selection of subsidized housing sites and the concomitant increase in the absolute number of minority students in particular schools both were likely to cause whites to leave the surrounding neighborhoods and discouraged whites from moving into those neighborhoods. Tr. 8211 (Pearce). In addition, Dr. Armor acknowledged that the obvious impact of the City's housing practices was to preserve the racial segregation of Southwest Yonkers schools in comparison to East and Northwest Yonkers schools. Dr. Armor recognized that schools in these latter two areas would have had significantly greater minority student enrollments if subsidized housing projects with rent-ups similar to those which existed in Yonkers had been located in these areas. Tr. 11,900-01. In light of the above and our previous discussion of the segregative impact of the City's site selection practices, see HOUSING VI supra, we find that the evidence persuasively demonstrates that the City's housing practices were responsible in significant part for perpetuating and exacerbating the systemwide racial segregation of Yonkers public schools. See also Arthur v. Nyquist, supra, 415 F. Supp. at 968; cf. Armstrong v. O'Connell, 463 F. Supp. 1295, 1304 (E.D.Wis. 1979) (rejecting analysis by Dr. Armor of segregative impact of school board's discriminatory acts since analysis "assumes that ... no other neutral and nondiscriminatory actions would have been taken", ignores psychological effects of discriminatory acts, and fails to consider that discriminatory conduct "may have an effect beyond that felt by the persons, or in the schools or districts of immediate impact").
With respect to the impact of school segregation on housing patterns, Dr. Armor also questioned the extent to which the racial composition of a school, apart from the racial composition of the surrounding neighborhood, was a significant factor in causing residential segregation. Tr. 12,156-57. Dr. Pearce, on the other hand, testified that the racial composition of a school was an important factor in shaping residential relocation and housing choices. Tr. 8211, 8307-08.
While the precise quantification of the impact of school segregation on housing patterns is an elusive task, with inter-relationship between the racial composition of schools and the impact on residential segregation has been repeatedly recognized by courts examining the causes and effects of school segregation. See Columbus Board of Education v. Penick, supra, 443 U.S. at 465 n.13; Keyes v. School District No. 1, supra, 413 U.S. at 202; United States v. Board of School Commissioners of Indianapolis, supra, 573 F.2d at 408-09 n.20; NAACP v. Lansing Board of Education, supra, 559 F.2d at 1049 n.9; Armstrong v. O'Connell, supra, 463 F. Supp. at 1307; Evans v. Buchanan, 393 F. Supp. 428, 436-37 (D.Del.), aff'd, 423 U.S. 963, 46 L. Ed. 2d 293, 96 S. Ct. 381 (1975); Hart v. Community School Board of Brooklyn, New York School District # 21, 383 F. Supp. 699, 706 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975). As the courts noted in Arthur v. Nyquist, if school desegregation suits "have shown anything, they have demonstrated convincingly, in the words of Judge Weinstein, that '[h]ousing and school patterns feed on each other. The segregated schools discourage middle class whites from moving into the area and the segregated housing patterns lead to segregated schools.' Hart v. Community School Board, supra, 383 F. Supp. at 706." 415 F. Supp. at 968 (footnote omitted). Also probative of this phenomenon is the direct evidence indicating that City officials in Yonkers were aware of and in some instances attempted to accommodate the segregative consequences of this interrelationship through the alteration of school attendance zone lines. See SCHOOLS V.E.1 infra. We find that the racial segregation of Yonkers public schools, as in many other communities, has contributed to the residential segregation of the City both in deterring relocation to and in encouraging relocation from areas with racially imbalanced minority schools.
To be sure, demographic residential patterns and perceptions regarding the quality of schools are also important factors in determining individual housing choices. See SCHOOLS IV.B.5 supra. Yet in a community such as Yonkers, where patterns of racial segregation closely parallel disparities in the educational quality of schools, it is unrealistic and impracticable to separate the impact of the racial composition of the schools on housing patterns from the community's perceptions regarding the relative educational opportunities available in Yonkers public schools. And to the extent that housing choices in Yonkers have been based on demographic features, the City's discriminatory housing practices have, as already noted, contributed to the segregative demographic patterns upon which such housing choices were based. It is this contribution to, perpetuation of, and enhancement of the school-housing spiral -- the placement of subsidized housing virtually exclusively in Southwest Yonkers, the direct impact of this practice on residential and school segregation in the city, and the resulting impact on private housing and school choices, leading to further segregation -- for which the city bears substantial responsibility.
B. Budgetary Control
The Yonkers School District is, by virtue of state law, fiscally dependent on the City of Yonkers.
Under state law, the Board must prepare each year an itemized budget of its estimated expenditures for the following fiscal year. In Yonkers, this budget is prepared initially by the Superintendent of Schools and his or her staff and consists of a line-by-line itemization of specific expenditures. The bulk of the school district's budget typically consists of expenditures for salaries and employee benefits for instructional staff; building maintenance and utilities; debt service payments for school construction and rehabilitation, and educational program and curricular development expenses.
Once the Board adopts the budget, it is submitted to the City Manager, who is responsible for reviewing budget requests for all City departments. The City Manager reviews the budget on a line-by-line basis in order to determine its overall reasonableness. The budget is then submitted to the City Council's budget committee, at which time a line-by-line review is again performed. The City Council also holds public hearings on the school district's budget request, as with other City department budgets. State law provides that the City Council may increase, diminish or reject any item in the budget other than fixed costs for which the City is liable. Once the City appropriates a specific dollar amount for the total school district budget, the Board is permitted to spend the allocated funds for any educational purpose. Since the bulk of the school budget consists of fixed costs, or "mandated" expenses, such as personnel costs, reductions in the Board's budget request typically affect educational programs and services. Tr. 5025 (Jacobson).
Apart from the Board's annual budget appropriation, the Board has also utilized the "special estimate" procedure as a means of receiving additional operating funds. The special estimate is a specific request for additional funds from the City to be used for a specific purpose, such as school construction and rehabilitation, specific educational programs such as summer school and adult education, or educational materials and equipment. The special estimate is either approved or disapproved by the City Council, a process which effectively results in a line-by-line review of school district budgetary needs. The procedure is thus an additional means by which City budgetary control over educational affairs may be exercised, a fact which prompted the New York State Education Department to recommend that the use of the procedure be eliminated. GX 45, at 20. While the City Council has in fact used the special estimate procedure in at least one instance to attempt to influence educational policy decisions of the Board, GX 194 (return of special estimate in 1954 based on Board's decisions regarding Schools 1 and 2), the record as a whole reflects consistent City approval of special estimate requests. E.g., GX 177, 348, 349, 404. The special estimate thus represents a means for the City to exercise greater control over school affairs which has in practice been generally uncontroversial.
The Board, like other City departments, also receives appropriations from the City for capital expenditures. Until the mid-1960's, the Board received capital funds by submitting individual special appropriation requests for capital items directly to the Common Council (as the City Council was formerly known). Since 1964, the capital budget process has been significantly more elaborate. Capital expenditure requests for the Board and all City departments now take the form of five-year Capital Improvement Program budget requests. The Board's capital budgets, which typically include requests for school construction, rehabilitation or expansion and the purchase of equipment, are submitted to the City's Capital Improvement Projects Committee, which collects and reviews capital expenditure requests for all City departments. Pursuant to City law (Local Law 12), the Board's capital budget request is submitted to the City's Planning Board for further examination in light of the City's Master Plan. The Planning Board then makes a budget allocation to the Board, a decision which is reviewable by the City Council.
Although the Board is an independent body under state law, the impact of this budgetary scheme has been to vest in the City considerable influence and indirect control over school affairs. Although former Mayor Alfred Del Bello (1970-74) and former City Manager Charles Curran (1952-63) testified that school budgets were subjected to less scrutiny than budgets of regular municipal departments, the fiscal dependency of the Board has nevertheless been accompanied by an indirect but increasing municipal role in determining how educational decisions are made by school officials. A 1934 Columbia University study team noted that "[i]n actual practice, the placing of responsibility for the school budget in the hands of the [City] operates to center control of the educational program in the general municipal authority." SB 10, at 2. Although state law permits the Board to spend its lump sum budget allocation as it sees fit, the report noted that the contention that the Board thus maintains full control over educational programs "seems scarcely to be justified in the light of the actions taken by the board of education in an attempt to balance its budget." Id. at 3. A 1957 New York State Education Department report echoed these findings, noting that although under state law the Board is solely responsible for the educational function in Yonkers, the city, largely because of its fiscal control over the school district, in fact has "two boards of education operating [its] schools." GX 45, at 17. The report observed that "Yonkers school officers have failed to do all they know needs to be done because of confusion of responsibility and a legal inability to provide the needed money" and recommended that state law be changed to give the Board greater fiscal independence and responsibility over school affairs. Id. at 13-14.
The City's budgetary influence over school affairs has continued throughout the 1970's. School officials have repeatedly recognized that the school district's fiscal dependency has in fact resulted in a politicization of educational affairs. For example, the school district's evaluation of the 1972 NYU Report proposals regarding the high schools occupational education programs was affected substantially by what school officials perceived to be the political infeasibility of their implementation. The district's responsiveness to these political concerns contributed to the rejection of the report's variable access proposal in favor of a more costly but more educationally limited reform. In this connection, Assistant Superintendent Stanley Schainker accurately noted that I think everyone here probably knows that the Yonkers School Board, in essence, or the school district was fiscally dependent upon the City of Yonkers and decisions made by the city manager, city council, mayor, et cetera, so it wasn't as if, you know, we had the ability to raise our own money that we needed to do what
we talked about doing. We, in essence, had to convince another series of people, most of whom were elected by the community, and to the extent that the community resisted the idea, any idea, it seems to me that that would have some impact upon the people who owed election to those same individuals.
Schainker Dep. 42-43. Similarly, Superintendent Alioto recognized generally that [O]bviously any major expenditure level would require the consent of the City Council so in putting together, for example, the NYU report one would have to consider that we were treating with equity all parts of the City that would touch on all City Council geographic areas because the Council did not have a
history of supporting -- let me put it another way. They sort of had a policy of jealously guarding. If their pothole wasn't getting fixed, nobody's would and I think that had to be a major consideration in putting together a package for reform or change.
Alioto Dep. 42.
The impact of the Board's fiscal dependency was observable in a number of instances during the 1970's. School officials both expressly and implicitly acknowledged the effect of the City's budgetary control over educational decisionmaking and the gradual attempt by City officials to exercise greater control over school affairs largely by virtue of their economic relationship with the Board. This phenomenon was manifested in a number of ways; for example, Board member Charles Curran's perception that the City Manager was attempting to take over the Board, GX 157; the Mayor's creation of a Citizen's Budget Advisory Committee to supplement the City's own budgetary review process -- a committee which engaged in a detailed analysis of the Board's budget requests and a questioning of the Board's educational needs and goals, GX 167, 168; the City budget director's critical assessment of the Board's occupational education budget requests, GX 351; Superintendent Alioto being assigned the responsibility of improving City/Board cooperation as his sole priority for 1975, GX 128. While this scrutiny of educational funding is not inherently unjustifiable and was generally resisted by school officials, the fact remains that the City's indirect but significant role in shaping the educational programs in Yonkers public schools gave it significant influence over school affairs and in some instances impeded the Board's practical ability to effectuate educational reforms.
The clearest example of the negative impact of the Board's fiscal dependency occurred in 1976 when the City's fiscal crisis resulted in sizable reductions in the school district's budget. The school district bore a signficant share of the City's budget cutbacks, with the Board receiving 9.1% less than its annual budget request, a decrease of approximately $6 million. GX 160, 207; Tr. 5161-63 (Morris). The 1976-77 school year was marked by further cuts in the school district's budget amounting to over $9 million as a result of the state's imposition of fiscal restraints on the city. These budget cutbacks had a significant disruptive impact on educatinal programs in the city, with Southwest Yonkers schools suffering from particularly severe reductions in staff and specialized or remedial educational programs. See SCHOOLS IV.A.3.b, IV.B.2 supra.
The influence of the City's budgetary power on school affairs was overshadowed by other concerns during the Board's consideration of the Phase II plan. Financial considerations with respect to the City's budgetary influence over school affairs played a relatively insignficant role in the Board's evaluation of the plan; the recommended school closings and primarily state-subsidized transportation would have resulted in net reductions in fiscal expenditures. Thus, to the extent that fiscal matters were at all relevant to Phase II, such concerns related primarily to the relative fiscal merit of the plan and its financial feasibility rather than a concern that the City's budgetary control over the Board would preclude its successful implementation. While City Council members and the Mayor publicly expressed opposition to the plan, the financial considerations noted above effectively minimized the issue of budgetary approval in the Board's consideration of Phase II.
While the City's budgetary influence and indirect control over educational affairs has impeded the Board's ability to exercise its responsibility for operating the Yonkers public schools in a truly independent manner, the record does not demonstrate that the detrimental impact of the Board's fiscal dependency has been the result of budgetary actions by the City intended to perpetuate the racial segregation of the Yonkers public schools. This conclusion, however, is more a consequence of the Board's own inaction rather than any absence of segregative intent on the part of the City: because of the Board's independent failure to put forth any significant desegregative school reorganization proposal requiring the City's budgetary approval, we are unable to and need not determine whether the City would or would not have acted in a manner consistent with its actions relating to subsidized housing, mayoral appointments, or other areas of school affairs. While the school district's rejection of the 1972 NYU Report was influenced by the perceived infeasibility of obtaining City Council approval, the City was essentially never afforded an opportunity to formally indicate its budgetary approval or disapproval of the plan. Although the effect of the City's 1976 budget cutbacks on the school district, and Southwest Yonkers public schools in particular, was severe, the fiscal considerations underlying this action dispel any argument that racial factors played any role in the City's action. Finally, the City's willingness to fund school desegregation plans -- a telling indication of its segregative or desegregative intent (Arthur v. Nyquist, supra, 573 F.2d at 145) -- was not tested by virtue of the Board's refusal to adopt any such plans prior to the filing of this lawsuit.
C. Mayoral Appointment of School Board Members
In addition to the City's budgetary control over the Yonkers School District, the Mayor plays a significant role in educatinonal affairs through the power of appointment. Under the New York State law, the Mayor of Yonkers is empowered to appoint members of the Board for five-year terms of office. Once appointed, Board members are subject to removal only for a refusal to serve or neglect of duties. N.Y. Educ. Law § 2553(3), (8) (McKinney 1981). The Mayor has generally maintained little personal contact with his appointees subsequent to their appointment to the Board. Tr. 11,729 (O'Keefe); Tr. 13,577 (Lester).
Prior to the terms of Angelo Martinelli, Yonkers' Mayor from 1974-79 and 1982 to the present time, many Board members served more than one term and were frequently reappointed by mayors other than those who initially appointed them to the Board. Over the twenty-five years prior to Mayor Martinelli's terms of office, twenty-two of the Board's thirty-three trustees were reappointed by a successor mayor. SB 486. In contrast, not a single Board member who was serving at the time of Martinelli's 1973 election as Mayor was reappointed. Id.
Mayor Martinelli's election to office was followed by increased efforts to obtain greater influence over educational matters. The Mayor's initial efforts took a number of forms. Soon after his election, Mayor Martinelli spoke to Superintendent Alioto and the Board in executive session and indicated his interest in obtaining influence over Board personnel decisions relating to the hiring of non-teaching staff such as custodians and groundskeepers. Mayor Martinelli's request provoked strong protests from school officials and Board members. Mayor Martinelli responded by emphasizing his power over Board appointments and his intention to exercise it in a manner which would make the Board more responsive to his educational goals. Tr. 5028-29 (Jacobson); Alioto Dep. 27-29; Jungherr Dep. 7-9.
The Mayor also sought to influence matters relating to student assignments. In April 1974, the Mayor requested that students from a small predominately white area of the School 3 (60% minority) attendance zone be reassigned to School 27 (12% minority). Donald Batista, the school district's Assistant Director of Pupil Personnel, recommended that the request be rejected, noting that the impact on student enrollment was negligible and that "[t]here is potential for a greater community reaction since it appears that the district line is being gerrymandered." SB 206. As a result, the district line remained unchanged. Tr. 13,433-36 (Frank). During his tenure as Mayor, Martinelli also urged the Board to convert the school system into a K-8, 9-12 grade structure, thus returning sixth, seventh and eighth grade students to elementary schools. This proposal was rejected by the Board. Tr. 5089 (Jacobson).
In March 1974, the Mayor made his first Board appointment, naming Angelo Paradiso to the Board. Paradiso, the principal of Saunders Trades and Technical High School from 1964 to 1973, had resigned his post in 1973 after a dispute with Superintendent Alioto concerning the Saunders screening process and Paradiso's unwillingness to address the problem of the disproportionately low number of minorities at the school. Paradiso was a strong advocate of the self-contained vocational school, rather than the comprehensive high school concept, an educational philosophy shared by Mayor Martinelli but which was slowly coming under increased scrutiny by school officials. GX 1018; Tr. 7676 (Martinelli). Later that year, Mayor Martinelli appointed Paradiso to the City's Saunders site selection committee, a committee established independently of the Board's committee to examine alternatives for the relocation of the school. GX 600.
Mayor Martinelli's second appointment was Curtis Giddings. Giddings, who is black, was chosen to replace Wiley Hammond, a retired school administrator, who was also black. Prior to his appointment, Giddings was a teacher, guidance counselor, and administrator in the New York City public school system. C-1424.
Mayor Martinelli's 1975 Board appointment were significantly more controversial. On May 1, 1975, the Mayor appointed Anne Bocik and Morton Wekstein to the Board. GX 251. Like Paradiso, Bocik, a former Yonkers public school teacher and elementary school principal (Schools 18 and 24), had retired one year earlier under pressure from Superintendent Alioto's administration. According to Assistant Superintendent Stanley Schainker, Bocik's retirement was prompted by unfavorable job evaluations based on her performance as principal of School 18. This evaluation was based on her ineffectiveness in planning as well as her use of racial slurs and other racially insensitive behavior toward minority students. Bocik's treatment of minority students in this manner was recalled by several administrators and school teachers in the district. Tr. 4377 (Barrier); Tr. 5530-36 (Davis); Schainker Dep. 64-67; Gold-Marks Dep. 59-60, 104. Soon after her retirement from the district, State Senator John Flynn wrote to Mayor Martinelli, recommending that Bocik be appointed to the Board based on her educational experience and her ethnic (Slavic) background. C-1405. Former City Councilman Nicholas Benyo, leader of Yonkers' United Slavonian American League, also urged her appointment based on her ethnic background. Tr. 7669-70, 12,369 (Martinelli). Prior to her appointment, Board president George Minervini advised Mayor Martinelli not to appoint Bosic Bocik to the Board. Although Mayor Martinelli knew of Bosic's Bocik's retirement from the school district, Martinelli testified that Minervini gave no explanation for his advice and that Martinelli did not request any. Tr. 7667-70.
Morton Wekstein was Mayor Martinelli's personal attorney. At the time of his appointment to the Board, Wekstein's law partner was representing a number of school administrators who had been considered ineffective by Superintendent Alioto.
The appointment of Bocik and Wekstein to the Board was met with widespread protests and denunciations from various segments of the community. Representatives of the minority community publicly criticized the Bocik appointment based on her racially discriminatory behavior and filed a complaint with the New York State Education Department regarding the appointment. GX 226, at 46,049; Tr. 3554 (Ross). Wekstein's appointment was questioned because of his alleged conflict of interest. GX 226, at 46,048; 251. In a press release, Superintendent Alioto stated that in selecting "an ex-principal who was requested by me to retire early" and an attorney from a firm which represented the Mayor himself as well as school district employees with grievances against the district, Mayor Martinelli was attempting to make "good his pledge to take over the Board of Education in retaliation for my persistent refusal to provide him with Board of Education jobs on which to build his political career." GX 136. Board president Robert Jacobson similarly decried the "definitely political nature" of the appointments. GX 136,224. Upon being personally confronted about the Bocik appointment in particular, Mayor Martinelli defended his decision based on her ethnic background. Gold-Marks Dep. 63-65; see also Tr. 3554-55 (Ross). While Bocik served her full five-year term, Wekstein resigned less than one year later based on his anticipated legal representation of Mayor Martinelli's brother, a long-standing client and owner of the Yonkers Home News and Times, in a lawsuit involving the City Council's designation of an official newspaper. C-1408.
Two significant school-related events occurred between the Mayor's 1975 and 1976 appointments to the Board. First, in response to the concerns expressed by the Yonkers NAACP over the increasing racial imbalance in Yonkers public schools, the Board, led by Board president George Minervini, established the Task Force for Quality Education. Minervini appointed Winston Ross and Herman Keith of the Yonkers NAACP to serve as members of the ten-member Task Force. Second, the Board adopted a controversial and strongly opposed plan to close seven schools in order to comply with budget cutbacks imposed by the City as a result of its fiscal crisis. Along with most of the East Yonkers community, Mayor Martinelli actively opposed the closing of Schools 4 and 15 in East Yonkers and participated in vigorous efforts to reverse the decision. See SCHOOLS IV.A.3.b supra.
By this time, Mayor Martinelli's efforts to gain control over educational affairs through his Board appointments were increasingly recognized by Board members and school administrators alike. Retiring Assistant Superintendent Stanley Schainker noted that he was "deeply concerned about the increasing efforts of some to politicize the schools for their own personal aggrandizement" and stated his belief that "those efforts already have had a negative impact upon the operations of the Board of Education." GX 130. Other school officials similarly indicated that Mayor Martinelli had expressed his intent to exercise his appointment power in a manner which would give him control over the Board. Alioto Dep. 29; Tr. 11,083-85 (Jacobson); GX 224.
In the aftermath of Wekstein's resignation, Winston Ross wrote to Mayor Martinelli, requesting that he consider appointing a hispanic to the Board. GX 241. Mayor Martinelli responded by emphasizing that his appointment would be "based on the quality of the individual irregardless of racial background", GX 242, a position somewhat inconsistent with his recent ethnically-motivated appointment of Anne Bocik and his subsequent appointment of John Romano to the Board. In April 1976, Mayor Martinelli appointed James O'Keefe to the Board. O'Keefe, a realtor from Northeast Yonkers, was strongly opposed to the closing of School 15 and led the Taxpayers of North East Yonkers organization in their public opposition to the school closing. Upon being appointed to the Board, O'Keefe, like Martinelli, continued to press for a reversal of the Board's decision to close the school. GX 187; SB 867.
As in 1975, the Mayor's 1976 Board appointments were controversial. In May 1976, the terms of George Minervini and Rosemarie Siragusa were scheduled to expire. One month earlier, Minervini, who had been instrumental in establishing the Task Force for Quality Education, appointed Siragusa to the Task Force. GX 931. Both Minervini and Siragusa were gerally regarded as two of the Board's strongest advocates of school desegregation in Yonkers. Siragusa, like Minervini, also had voted to close Schools 4 and 15, and had declined to accept the Mayor's invitation to participate in a "walk" in protest of School 15's proposed closing. GX 134, 255. The Council of PTA's recommended their reappointment, with Council of PTA's officer Audrey Roshkind recalling the "tremendous job" which Minervini had done as a Board member. Roshkind Dep. 140; Tr. 5296-97 (Frauenfelder). The Yonkers NAACP also recommended that both trustees be reappointed to the Board. Tr. 3634-35 (Ross). Superintendent Robitaille, who had replaced Superintendent Alioto in December 1975, took the unusual step of personally recommending that the Mayor reappoint Dr. Minervini so that Minervini, the Board president who Robitaille described as an "exceptional individual," could lead the district "in a very difficult time." Tr. 4657-58. This recommendation was echoed by the endorsement of the Clergy of Yonkers as well. Tr. 4530 (Klausner proffer). Both Minervini and Siragusa expressed to Mayor Martinelli their interest in continuing to serve as Board members.
Mayor Martinelli reappointed neither Minervini nor Siragusa to the Board. Although Mayor Martinelli testified that his decision to replace Dr. Minervini, a friend of the Mayor's, was ultimately made because of his membership on the Board which had previously agreed to add a job security clause to the teachers' contract, Tr. 12,372, Martinelli, in earlier testimony, expressed doubts that this factor influenced his decision. Tr. 7672-73. Mayor Martinelli's refusal to even consider reappointing Siragusa was based not only on their disagreement on educational matters but also on her participation in political campaigns in which she opposed Martinelli's election as Mayor. Tr. 12,373-74 (Martinelli). While Mayor Martinelli denied that Minervini and Siragusa's position on busing was a factor in his decision not to reappoint them to the Board, Martinelli also acknowledged that by the time of the Phase II proposal the following year, he routinely asked Board candidates about their position on busing and that their response "probably weighed very heavily with me." Tr. 12,411-12. Given the increased community awareness of school desegregation as an issue which the Board and school administrators were beginning to address, the identification of the Task Force's efforts by some community members as supportive of "busing," the Mayor's own acknowledgement that busing became an issue of considerable importance in his appointment process, and the Mayor's subsequent appointments to the Board, we have difficulty concluding that Mayor Martinelli's refusal to reappoint either Minervini or Siragusa was not influenced by their generally well-known committment to addressing the problem of racial imbalance in the Yonkers public schools and thus their potential willingness to utilize busing as a method of doing so.
To replace Minervini and Siragusa, Mayor Martinelli appointed Joseph Spencer and John Romano to the Board. Spencer was a member (and later Chairman) of the Yonkers Conservative Party who supported the Mayor in his previous election campaigns but who had no prior particular involvement in educational matters. Spencer Dep. 21-23; Tr. 7674-75 (Martinelli). Romano, an attorney, was supported by the Congress of Italian-American Organizations and had helped pass state legislation enabling the City to use air rights for educational purposes, a technique which Mayor Martinelli had proposed in 1974 with respect to the Saunders Trades and Technical High School. Tr. 7676, 12,373 (Martinelli). Soon after their appointment to the Board, Spencer and Romano voted against applying for state funding of the Board's Task Force for Quality Education. P-I 59-24.
Mayor Martinelli's next Board appointment was made earlier than scheduled. The Board's decision to close Schools 4 and 15 was followed by vigorous efforts to overturn the decision. In addition to instituting legal proceedings and engaging in various forms of public protest, the East Yonkers community also participated in two particular courses of action. First, members of the Board were subjected to repeated harassment and verbal abuse, with several trustees experiencing picketing of their businesses or homes. In September 1976, Board member Ian (Doug) Smith, a target of this harassment, resigned from the Board. In his letter of resignation to Mayor Martinelli, Smith urged the Mayor to appoint an independent-minded trustee in order to ensure a balance in educational philosophies on the Board; in a letter appearing in the Hearld Herald Statesman, Smith also bemoaned the "political machinations behind this personal harassment" which led to his resignation. GX 162, 200. Smith's resignation was greeted with regret by community members and expressions of concern that the Mayor would respond by appointing a replacement who would enable him to gain control of the Board. GX 163, 261. At a Board meeting held immediately after Smith's resignation, Mayor Martinelli urged the Board to table a resolution calling for the return of the recently closed schools to the City. The Board, with non-Martinelli appointees Jacobson and Katherine Carsky dissenting, tabled the resolution. GX 187.
During the fall of 1976, the Northeast Yonkers community also established an alternative private school in response to the closing of School 15, action which prompted a lawsuit by the Board. One individual actively involved in opposing the School 15 closing and establishing the alternative school was Seelig Lester. Lester, an experienced educator who served previously as deputy superintendent of the New York City public schools, was a strong advocate not only of reopening School 15 but also of the self-contained vocational school -- two positions known and shared by Mayor Martinelli. Tr. 7670-71, 12,406-07 (Martinelli); Lester Dep. 16-18. In November 1976, Dr. Lester was appointed to the Board. GX 262. In May 1978, during the Board's consideration of Phase II, Lester became the first Board member to be reappointed by Mayor Martinelli.
Mayor Martinelli's 1977 appointment to the Board, Dorothy DeRuve, was uncontroversial yet consistent with the nature of his prior and subsequent Board appointments. In May, Katherine Carsky's term as a Board member expired. Carsky, who had voted to close Schools 4 and 15 and opposed the delay in returning the schools to the City, had expressed to Mayor Martinelli her interest in continuing to serve on the Board. GX 205. Carsky was also supportive of the desegregative efforts of the Task Force for Quality Education. Tr. 3583-84 (Ross); see also Tr. 4663 (Robitaille). Mayor Martinelli instead appointed Dorothy DeRuve, a dental assistant from Northwest Yonkers, to the Board. Although the record fails to disclose whether Mayor Martinelli specifically inquired about DeRuve's position on busing, DeRuve opposed Phase II primarily because of the "assigned transportation" element of the plan. SB 815, at 6-9. In light of the Mayor's reliance on opposition to busing as a significant criterion in making his later Board appointments and the simultaneous and well-publicized efforts of the school district in the spring and summer of 1977 to formulate proposals for desegregating the schools, it is reasonable to infer that these considerations played some role in the Mayor's 1977 Board appointment.
In April 1978, just after the public hearings on Phase II, Curtis Giddings, the Board's only black member, resigned from the Board after moving out of Yonkers. Yonkers NAACP President Winston Ross wrote to Mayor Martinelli, requesting that he appoint a black to replace Giddings. Ross specifically recommended former Yonkers NAACP President Herman Keith based on his "sincere enthusiastic interest" in the welfare of minority students. GX 238. Mayor Martinelli flatly rejected this recommendation based on Keith's previously expressed opposition to the Mayor's policies, and urged Ross to submit recommendations for persons "who at the very least have taken a neutral position with regards to the policies and programs which I espouse." GX 239. At the same time, Vice Mayor Arthur Freddolino introduced three resolutions in the City Council requesting that Mayor Martinelli not appoint new Board members until their position on busing was made public and that the Board not vote on Phase II until the Board's three new appointees were named by the Mayor. GX 143. Mayor Martinelli also had expressed his own opposition to the Phase II plan, opposition not only based on his firm stance against "forced busing" but also reflecting his belief that only three of the district's twenty-five elementary schools and one of the district's seven middle schools were racially isolated. Tr. 7650-54 (Martinelli). Cf. GX 64; SCHOOLS IV.A.3.b supra.
Mayor Martinelli's three Board appointments in April and May of 1978 were consistent with these criteria and his own personal opposition to Phase II. In April, Mayor Martinelli appointed Quentin Hicks, who is black, to replace Curtis Giddings. Hicks, a Republican Party district leader, had been active in the past in the Warburton Ashburton Ravine Project Area Committee (a group which advocated the use of scattered site housing in Yonkers) and had become known to Mayor Martinelli through their contemporaneous service on the committee. Tr. 7665-66 (Martinelli); Hicks Dep. 37. The Hicks appointment, however, was immediately protested by members of the black community who believed that Hicks was not representative of their interests. Tr. 3647-51 (Ross); Tr. 8373 (Keith). Although Mayor Martinelli denied knowledge of Hicks' educational philosophy, Hicks' opposition to busing was consistent with the selection criteria used by Mayor Martinelli at the time and was publicly articulated by Hicks at the time of his appointment to the Board. Hicks Dep. 49. As became clear the following month, Hicks' opposition to Phase II was based not only on opposition to busing but also on his conclusion that both white and black community members were opposed to racial integration of the public schools. See SCHOOLS IV.F.3 supra. One year later, Hicks was reappointed to the Board by Mayor Martinelli. In 1981, Mayor Martinelli acknowledged to Herman Keith that his appointment of Hicks to the Board had been an embarrassment to the black community. Tr. 7665-66 (Martinelli); Tr. 8374-75 (Keith).
In May 1978, Mayor Martinelli made two appointments to the Board. First, the Mayor reappointed Seelig Lester to the Board, an appointment which was consistent with his past qualifications as well as his opposition to the Phase II plan. Second, Mayor Martinelli chose Robert Weiner to fill the seat vacated by Robert Jacobson. By that time, Jacobson, an active Board member who was generally supportive of the Phase II plan, had concluded that Mayor Martinelli's decision to replace Board members Minervini and Siragusa had effectively thwarted any possibility that Phase II would be adopted by the Board. Tr. 11,139 (Jacobson). Although Jacobson did not discuss with Mayor Martinelli the possibility of being reappointed to the Board, Jacobson had already concluded that his reappointment was unlikely and that he probably would not have continued to serve in any event. Tr. 4963, 11,135, 11,146. Weiner, Mayor Martinelli's former campaign manager, had asked the Mayor a number of times to consider appointing him to the Board. Weiner Dep. 54-56. Weiner, a known opponent of busing, was selected by Mayor Martinelli based on their mutual opposition to the Phase II plan. Tr. 7677 (Martinelli); Weiner Dep. 86. In May 1978, the Board, now comprised solely of Mayor Martinelli's appointees, held a special workshop meeting at which Board members expressed their unanimous opposition to Phase II. See SCHOOLS IV.F.3 supra.
The Mayor's final two appointments were relatively uncontroversial but not devoid of overtly political design. After appointing Joseph Sayegh, a doctor of medical research who had worked since 1962 on the Mayor's Community Relations Committee, the Mayor, in the midst of a re-election campaign in which the Board appointment process was a frequently debated issue, appointed Arthur Natella to the Board. Natella, a retired Yonkers school principal from Southeast Yonkers, was appointed by Mayor Martinelli on the day of a mayoral debate in Natella's home community in an effort to deflate the criticism of the Mayor's previous Board appointments and to garner the support of the community. Subsequent to his electoral defeat in November 1979, the Mayor issued his State of the City address. In addition to commending the quality of the school district's new Superintendent and Board trustees, Mayor Martinelli emphasized that "we now have a Board of Education fully committed to neighborhood schools which is of critical importance to neighborhood stability in this city!" GX 848b.
After the City's new mayor, Gerald Loehr, took office, the Board appointment process was changed. Since 1980, candidates for Board appointment have been recommended by a blue ribbon panel consisting of twelve to fifteen members appointed by the mayor. The panel chooses a small number of qualified candidates and submits their selections to the mayor. By the time this lawsuit was commenced in December 1980, the Board had failed to develop and implement any desegregative portion of or alternative to the Phase II plan and continued to retain the previously closed and unused School 4 facility. Mayor Martinelli, re-elected in 1981, has reappointed all Board members whose terms have expired since that time and thus has not reappointed any new members to the Board.
The Mayor's appointments to the Board reflect in clear and unambiguous terms the politicization of educational affairs in Yonkers. The record demonstrates that Mayor Martinelli's Board appointment power was utilized in a manner which would enable him to obtain indirect but significant influence over school affairs, influence which he and been initially unsuccessful in obtaining more directly. While Board members were generally free of outside influence from the Mayor subsequent to their appointment, the conduct of Board members was generally consistent with the Mayor's intentions and objections in appointing them to the Board. Even when his earlier appointees (i.e., Paradiso and Bocik) occasionally disagreed with his positions, such as the 1976 proposal to close seven schools which Mayor Martinelli adamantly opposed, the subsequent conduct of these trustees (in voting to delay returning the closed schools to the City and in opposing Phase II) and of Mayor Martinelli's subsequent appointments to the Board was indicative of the Mayor's successful exertion of considerable influence over educational affairs in Yonkers.
Mayor Martinelli's appointments to the Board went beyond the mere exercise of ordinary political discretion. Beginning in 1976, mayoral Board appointments also became more directly related to Board members' views on matters concerning school desegregation. While the isolated appointment of a busing opponent or the single, unwitting appointment of a trustee with less than admirable views concerning minorities or school desegregation is perhaps an insufficient basis for inferring impermissibly discriminatory intent, see Arthur v. Nyquist, supra, 415 F. Supp. at 959 (Mayor's appointment of single trustee based on trustee's opposition to busing insufficient evidence of discriminatory intent), this is not such a case. Here there is a pattern of appointments, reappointments, and failures to appoint over time, with the consistent result of impeding the efforts of the school district to address the racial imbalance of the schools. In addition, the appointment of Board members must be viewed not in isolation but in conjunction with other contemporaneous occurrences in the city. The increasing efforts to establish a Board firmly committed to neighborhood schools dovetailed neatly with the City's most concentrated development of family-populated subsidized housing projects in Southwest Yonkers at or about the beginning of Mayor Martinelli's first term, and the subsequent resistance to the development of subsidized housing in East Yonkers during the remainder of Mayor Martinelli's terms in office. The two patterns were of a piece: the City's segregative housing practices and the Mayor's appointment of individuals opposed to "busing" contributed significantly to the confinement of minorities in Southwest Yonkers and the Board's failure to undo the segregative effects of these and other practices on the schools. And in a city where the segregated condition of "neighborhood schools" is in part the product of official municipal design, the commitment to the neighborhood school system by the head of that same municipality can hardly be considered race-neutral. Cf. Arthur v. Nyquist, supra, 415 F. Supp. at 968-69 (school board's adherence to neighborhood school policy not race-neutral where city officials have engaged in segregative public housing practices).
D. School Site Selection
The City has also played a significant role in the selection of sites for new schools. This participation originates from the City's legal responsibility for appropriating funds for the acquisition of land and the construction of school facilities. The Board initiates the site selection process by deciding whether to build a new school and where it wants the school to be built. The City's Planning Bureau assists in the site selection process by analyzing demographic patterns and making land use recommendations. Once the Board selects a particular site, it must submit its request to the City Council, which has final authority to approve or reject the site. The City retains legal title to land acquired by the City Council and designated for educational use. However, once the land is so designated, the City has no legal power to dispose of the property until the Board votes to return the school to the City. N.Y.Educ. Law § 2556 (9) (McKinney 1981); Tr. 8922 (Curran).
In actual practice, the City's involvement in school site selection decisions has been considerable. While only three site selection decisions have been made since 1967 -- School 10, Yonkers High School, and the new Saunders Trades and Technical High School -- City officials played a central role in each of them. The extent of the City's involvement, its impact on the site selection and school construction process, and its effect on racial imbalance will be examined for each of these schools.
1. Yonkers High School
Yonkers High School has served as the district's high school for Southwest Yonkers students since its inception in 1927. The school also enrolled students from Southeast Yonkers until 1957, when the Lincoln facility in Southeast Yonkers too on a high school component. In 1944, Yonkers High School was relocated to the former Franklin Junior High School facility on Linden Street in Southwest Yonkers, and Franklin students were relocated to the former School 2 elementary school facility just two blocks away. Although the relocations were originally implemented as temporary war-time measures, the schools remained in their respective locations for the next three decades.
Over the years, these two facilities were increasingly recognized by school officials and community members as physically inadequate for their respective student bodies. By the mid-1960's, school officials actively began to consider the selection of a site for the construction of a new Yonkers High School. The Board investigated eleven potential sites, with major consideration given to the Leake and Watts property, the Sutherland-Pelton Park site, the Sullivan Oval, and War Memorial Park. In December 1967, the Board requested that the City acquire land located at Sullivan Oval for the construction of the school. The Sullivan Oval site, located in a predominantly white residential section of Southwest Yonkers, consisted of park land and recreational facilities. The site was selected based on an examination of eight factors: location, area, topography, procurement, acquisition costs, development costs, community, and safety and access. Sullivan Oval's larger site size, lower acquisition and development costs, and the absence of any relocation burdens on community members were the primary factors underlying the Board's recommendation. P-I 46-53.
The Board's selection of the Sullivan Oval site provoked immediate and widespread controversy in the community. A large number of community organizations and city residents and the Westchester County Department of Parks, Recreation and Conservation opposed the selection of the Sullivan Oval site primarily because of its alleged impact on the availability of already scarce park space for recreational use by community members. The Parks Department and several City Council members suggested War Memorial Park as an alternative site, while other community members suggested the Sutherland-Pelton site. GX 278; P-I 46-38, 46-40. War Memorial Park is located just northeast of Getty Square in the heart of Southwest Yonkers, and the Sutherland-Pelton site is located on McLean Avenue in the southernmost portion of Southwest Yonkers. Both areas contained greater concentrations of minority residents than the Sullivan Oval site. Tr. 5183, 5253 (Morris); SB 742.3. On the other hand, the PTA's of Southwest Yonkers' Schools 3, 18 and 27, Longfellow Junior High School and Yonkers High School urged City Manager Frederick Adler to support the acquisition of the Sullivan Oval site based primarily on the already protracted use of what community members and school officials recognized was a physically confining and inadequate school facility, as well as the continued use of the former School 2 facility for Franklin Junior High School students. GX 278.6, 278.7, 278.8, 278.10, 278.13. In the spring of 1968, the City Council rejected the Sullivan Oval site. Tr. 5185 (Morris); P-I 46-60, 46-63.
The remainder of the year and the next was filled with continued controversy surrounding the site selection for the new Yonkers High School. Community members and school and City officials continued to debate the site selection issue along the lines noted above, with a general division of opinion along "recreational use" versus "educational use" lines. P-I 46-75, 46-85, 46-87. The Board was also asked by Southwest Yonkers residents, PTA members and the Yonkers High School Redevelopment Committee to redistrict the city's high schools so as to provide for a more equitable distribution of "physical facilities and educational opportunities." GX 493, 494. The Board did not implement this suggestion but continued to adhere to its selection of Sullivan Oval as the site for the new Yonkers High School. Finally, in 1970 the City Council reversed its position and approved the construction of the new Yonkers High School on the Sullivan Oval site. Tr. 1255, 1408-08 (Del Bello); GX 1093.8, 1094.20. Construction of the new school commenced thereafter and the school opened in February 1974, with Franklin Junior High School students relocated to the old Yonkers High School facility the following year.
While the assignment of Southwest Yonkers high school students to the inferior Linden Street facility was an unfortunate circumstance, the record is devoid of evidence which demonstrates either that the City's role in selecting a new site for Yonkers High School is evidence of its control over the Board or that the City's or Board's role in selecting the site was at all affected by racial considerations. While the 1968-69 delay in selecting a site for the school was the result of the City Council's rejection of the Sullivan Oval site, this delay was influenced by non-frivolous concerns unrelated to racial or even educational factors. In addition, the Board adhered to its original site selection despite strong opposition to its decision and the City's initial rejection of the Sullivan Oval site. The site was eventually approved by the City and was the most predominantly white of the three sites under active consideration by the Board. While Yonkers High School is presently racially imbalanced (62% minority) as compated to the district's other high schools (47%, 2%, and 9% minority), we find that this condition was not deliberately caused by the conduct of the City or the Board in selecting the site for the new school.
2. Saunders Trades and Technical High School
Until 1980 the Saunders Trades and Technical High School, the district's vocational school, was located in the Getty Square area in downtown Southwest Yonkers. The school was significantly smaller than the district's other high schools and had long been recognized as a physically inadequate facility. GX 43, at 31-32 (1957 New York State Education Department study recommending replacement of Saunders facility). As the school's reputation improved during the late 1960's and early 1970's, attention turned to either rehabilitating and expanding the Saunders facility or finding a new location for the school. In 1973, the school district rejected the NYU proposal to close the school and decentralize its programs throughout the district's regular high schools. The Board instead adopted a plan to rehabilitate and expand Saunders and to augment its occupational course offerings. See SCHOOLS IV.F.2 supra.
In the spring of 1974, a Board study concluded that the cost of constructing a new facility was not substantially greater than the cost of rehabilitating and expanding the existing Saunders facility. C-1403. As a result, school and City officials began to investigate the possibility of either rehabilitating Saunders or constructing a new facility. P-I 45-53, 45-56, 45-71, 45-72. The City retained a consulting firm to perform a study, to be completed by September 1, of the possible construction of a new facility. P-I 45-72. In October, after the Board requested that the City expediate the completion of the study, the City established its own committee to investigate the various alternative courses of action with respect to Saunders. P-I 45-72, 45-73; Jungherr Dep. 28-30. In January 1975, Mayor Martinelli also suggested the formation of a joint committee, composed of City and school officials, to pursue the Saunders investigation. GX 155; C-1403; Tr. 12,364-66 (Martinelli). The Board instead formed its own committee, with school officials also meeting with the City's committee to discuss possible locations for a new Saunders facility. P-I 45-79; Jungherr Dep. 32-35.
From the outset, City officials, led by Mayor Martinelli, were in favor of building a new Saunders on the existing site. At the time, the City was developing plans to build a new civic center in an area partly occupied by Saunders. Mayor Martinelli advocated the construction of the civic center over the new Saunders facility, a plan which would allow the City to build the school at a greatly reduced cost by selling the air rights over the school, as provided for under state law, to the developers of the civic center. In January 1975, the CDA also recommended the construction of the new Saunders on its existing site based on a variety of economic and space-related considerations. GX 660, at 49,083-86.
At the same time, the Board conducted its own investigation into possible locations for a new Saunders. In a series of meetings held in early 1975, the Board's committee discussed a number of sites, eventually narrowing the selection to the Cook Field site in New York City, War Memorial Field in Southwest Yonkers, and Pelton Field, also in Southwest Yonkers. Id. at 49,080. The existing site was considered inappropriate because of site size limitations, but the committee recognized the importance of considering the use of air rights to finance construction of the school. Id. at 49,080, 49,082, 49,087, 49-089-90. By March 1975, the committee was considering the War Memorial site and a site at Yonkers and Midland Avenues in Southeast Yonkers. Id. at 49,071. (The committee briefly considered the Burroughs Middle School as well. Id. at 49,071, 49,073.) At a March 31 joint meeting of the City and Board committees, Mayor Martinelli spoke in favor of the War Memorial Park site and the existing site. Id. at 49,068. One day later, the Board's committee recommended the acquisition of the Yonkers Avenue site. P-I 45-107.
The Board's recommendation was adamantly opposed by the City. Mayor Martinelli and Alphons Yost, acting director of the CDA, spoke with schools officials and strongly urged them to consider selecting a site in downtown Southwest Yonkers. School officials continued to believe that the Yonkers Avenue site was the best location for the new Saunders. However, school officials were also cognizant of the Mayor's position and the realization that City approval was necessary to obtain a site for the construction of a new Saunders facility. As a result, the Board reconsidered its earlier decision and recommended that the new school be built on the existing site. Jungherr Dep. 55-59; Alioto Dep. 84-86.
The construction of the new Saunders never materilized. The city's 1975 fiscal crisis necessitated drastic reductions in the school district's budget and effectively terminated the district's plans either to build a new Saunders or to renovate the existing facility. GX 126, at 5. By late 1976, after the district's school closings and other budgetary cutbacks, "rumors" began circulating concerning the possible relocation of Saunders to the Burroughs Middle School facility in Central Yonkers. P-I 75-25, at 39,251. By the spring of 1977, studies were conducted regarding the feasibility of such a relocation, and in June 1977 the Advisory Council for Occupational Education recommended that the Saunders school be relocated to Burroughs. P-I 75-27, at 42,995-96. This recommendation became part of the administration's 1977 Phase II plan, was fairly widely supported by community members, and was adopted by the Board in April 1978. See SCHOOLS IV.F.3 supra.
While evidence concerning the Saunders site selection process illustrates the City's influence over school site selection, the City's predominance in the site selection process was limited in its ultimate impact. To be sure, the Board's acquiescence in the City's site preference is evidence of its recognition that its fiscal dependence to the City had to be considered in making decisions as to the location of Saunders. As with the new Yonkers High School, however, the Board ultimately selected and obtained, after some delay, a site other than that which was initially recommended by the City and chose a site based on a variety of factors, none of which related in any measurable way to race. The new Yonkers High School was located in the most predominantly white location under active consideration, and Saunders was relocated to the new, physically superior Burroughs facility in Central Yonkers. Although the Board's selection of the Burroughs site was prompted largely by financial constraints which essentially precluded the City-supported construction of a new facility on the existing site, GX 98, at 16-17, the Saunders site selection process eventually resulted in a practical solution which was widely supported by community members, school administrators and the Board. The selection of a new site for Saunders was also largely devoid of racial considerations of either a desegregative or a segregative nature. In sum, the Saunders site selection is illustrative not only of the City's effective control over this aspect of school affairs but also of the absence of racial considerations throughout the Saunders site selection process.
E. Other City Involvement In School Affairs
The City's involvement in school district affairs has been manifested in a number of other ways. Three particular forms of involvement are discussed below.
1. Attendance Zone Changes
On a number of occasions, City officials have proposed alterations in school attendance zone boundaries. While earlier proposals were relatively free of racial significance, a number of proposed changes during the 1970's were consistent in their potentially segregative impact on the district's schools.
A number of City Council resolutions during the late 1960's to mid-1970's dealt with the redrawing of school attendance zone boundaries. E.g., GX 363, 389, 395. For example, in 1969 Councilmember Del Bello introduced a City Council resolution requesting that the Board consider altering a junior high school boundary line so as to reassign students in the northeast corner of the virtually all-white Burroughs (5% minority) zone to virtually all-white Whitman (2% minority). The resolution also requested the City Manager to examine the feasibility of contracting for bus transportation for the affected students if a change in district lines was not possible. GX 363. The resolution was referred to the Superintendent and Board, and the district line remained unchanged. GX 364.
In April 1974, Mayor Martinelli requested that a small predominantly white area of the School 3 (60% minority) attendance zone be reassigned to School 27 (12% minority). Donald Batista, the district's Assistant Director of Pupil Personnel, recommended that the request be rejected, noting that the impact on student enrollment was negligible and that "[t]here is potential for a greater community reaction since it appears that the district line is being gerrymandered." GX 131, SB 206. As a result, the district line remained unchanged. GX 364.
In August 1974, Councilmember Walsh requested that the school district rezone the predominantly white dogleg portion of the School 9 (28% minority) zone into School 16's (3% minority) attendance area. According to an analysis prepared at the time by Jerry Frank, the school district's court liaison, the reason for the change was to enable parents in the area "to avoid School 9." SB 214. The analysis noted that the proposed change, which involved thirty-seven students, would not affect the "social mix" at School 16 but would decrease School 9's white student population. Id.; Tr. 13,433-36 (Frank). This proposal was not adopted by the district.
During the district's implementation of the 1976 school closings, Alphons Yost, the Director of the City's Department of Development, suggested that the district alter the boundary separating School 9 (30% minority) and 16 (1% minority) so as to include the dogleg portion of the School 9 zone in School 16's attendance zone. This proposal, involving from eighty-three to 122 students, was prompted by a landlord's difficulty in renting apartments in that area because of the racial composition of School 9. GX 144, 383; Tr. 2885-89, 3100-05 (Arcaro); Tr. 10,371 (Yost).
This proposal was not adopted by the district.
Although the Board's consistent refusal to implement City-proposed attendance zone changes obviated their potential segregative impact on the schools, the evidence of such proposals is nevertheless illuminating insofar as the City is concerned. These proposals demonstrate the City's awareness of the inter-relationship between residential housing choices and the racial imbalance of the schools, a correlation which we have discussed previously in our findings. See SCHOOLS V.A supra. More important, the efforts of various City officials to accommodate accommodate the segregative impact of this interrelationship is additional evidence of the City's segregative intent with respect to public schools is well as subsidized housing.
2. City Council Resolutions
City officials have also used the procedure of passing non-binding City Council resolutions to express their opinion regarding educational matters. over the years, these resolutions have addressed a variety of school-related issues, such as the addition, site selection, construction, opening, closing, and redistricting of schools, the need to arrange bus transportation for students in particular areas, and the timing of Board decisionmaking. E.g., GX 141, 266, 359, 360, 362, 369, 379, 389, 390, 391, 395, 398, 425, 974.
The impact which such resolutions have had on school affairs has been relatively modest. The nature of the school district's response to City Council resolutions has depended on whether the resolution at issue is perceived to be the expression of serious and genuine concern regarding a particular educational matter or merely political "posturing" by the City Council or the resolution's sponsor. Tr. 1267 (Del Bello). A number of City Council resolutions, such as ones expressing opposition to the closing of School 31 and requesting the Task Force for Quality Education to delay the issuance of its report, were followed by Board actions consistent with the City Council's desires, GX 141; Tr. 1263-64 (Del Bello), and a 1969 resolution regarding the need for additional schools in Northwest and East Yonkers was responded to in some detail by Superintendent Mitchell. GX 398. In most cases, however, City Council resolutions have been given little or no serious consideration by the Board or have been specifically rejected. Tr. 1410 (Del Bello); Tr. 8947 (Curran); Tr. 10,952, 11,032 (Jacobson). For example, a 1954 resolution requesting the Board to reconsider its decision to close the virtually all-black School 1 was unsuccessful in achieving its goal, and a 1971 resolution requesting the Board to rescind salary increases given to top school administrators was expressly rejected by the Board. C-1400. Thus, while City Council resolutions are indicative of the City's interest in and attempts to influence school affairs, there is an absence of concrete proof that these resolutions were a consistently successful means by which the City exercised any measurable degree of control over the Board.
3. School 4
The interrelationship between the City and the Board, and its effect on housing and school segregation, is illustrated with unmistakable clarity by the treatment accorded School 4. School 4, an elementary school on Trenchard Street in Southeast Yonkers, was one of seven schools closed by the Board in April 1976 as part of its fiscally motivated budget reductions. We have already discussed the City's actions with respect to the School 4 facility subsequent to its closing in 1976. See HOUSING V.F.3 supra. In this section of our findings, we focus specifically on the circumstances surrounding the Board's retention of the School 4 facility.
School 4 was one of seven schools which the Board closed in April 1976: Schools 3, 7, and 12 and Commerce Middle School in Southwest Yonkers, Schools 4 and 15 in East Yonkers, and School 24 in Northwest Yonkers. State law provides that once a school facility is no longer needed for educational purposes, the Board "shall notify the common council of such fact ... and such common council ... may then sell or dispose of such property in the manner in which other real property owned by the city may be sold or disposed of...." N.Y. Educ. Law § 2556(9) (McKinney 1981). Immediately after the Board's decision to close the schools in 1976, City officials began to consider alternative plans for utilizing the school facilities in contemplation of the Board's returning these properties to the City. GX 1187.1, 1187.2.
As discussed previously in our findings, the 1976 school closings generated enormous community opposition, especially in neighborhoods previously served by Schools 4 and 15. During the summer of 1976, community members continued to voice their objections to the school closings and urged the Board to reconsider its decision to close the schools. P-I 58-71, 58-74. Mayor Martinelli was also actively involved in seeking to reopen Schools 4 and 15; with respect to School 4, Martinelli recommended that the Board reopen the facility as a K-8 school. Tr. 7543-45 (Martinelli). These efforts to reopen Schools 4 and 15 were unsuccessful, and the 1976-77 school year commenced with students from the closed schools reassigned to other schools in the surrounding neighborhoods.
Community opposition to the closing of Schools 4 and 15, however, did not subside. This opposition was expressed in a variety of forms: personal harassment of individual Board members; the creation of an alternative school in the School 15 community; the Mayor's commissioning of a traffic engineer to study the reassignment of former School 4 and 15 students; the institution of legal proceedings in New York State courts; and repeated expressions of opposition at Board meetings. See SCHOOLS IV.A.3.b supra. At a September 1976 Board meeting attended by Mayor Martinelli, a number of speakers, including the Mayor, urged the Board to reject a resolution to return all seven schools to the City. As a result of these "repeated requests," the Board voted to table the resolution. GX 187.
The Board's subsequent disposition of most of the closed schools was relatively uneventful. School 7 and Commerce Middle School were returned to the City later in 1976. Tr. 12,341, 12,348 (Martinelli). School 7 was sold in 1978 to a commercial buyer originally interested in acquiring the School 4 property, and Commerce was used as the City's Community Center. School 24 was retained by the Board for its own use in accordance with the 1976 School Closing plan adopted by the Board, and was subsequently converted into a warehouse facility for the school district.
Schools 3 and 12 were not immediately returned to the City. At the time of its closing, School 3 was in poor physical condition and in need of extensive rehabilitation. GX 126, at 6. In 1977, City officials entered into discussions with Eugene Smilovic concerning the possibility of establishing a religious school in the School 3 facility. GX 1170.2; P-I 199-7 to -9, 119-14 to -17. After this proposal failed to materialize, the school facility was used by the Spanish Community Progress Foundation on a rent-free basis. Sometime in 1980, the Board returned the school to the City. Tr. 12,338-39 (Martinelli).
The facility was sold in 1981 to a developer interested in establishing a senior citizen housing project (The Hamilton Apartments).
School 12, a small elementary school facility located in a physically deteriorating commercial neighborhood in Southwest Yonkers, remained unused for several years after its closing in 1976. In a July 1977 application to the New York State Preservation League, City Manager Vincent Castaldo recommended that the facility be used for housing as well as commercial use, or as a community services facility. P-I 77-9. However, no proposals for commercial use of School 12 were made to the City. The school was eventually leased by the Yonkers Community Action Program ("YCAP") and was sold to YCAP in September 1982 for a nominal consideration. C-1623; Tr. 12,346 (Martinelli). Although it is not clear when School 12 was actually returned to the City, the YCAP had possessory rights to the facility for some period prior to its sale. Tr. 12,346. In any event, the circumstances surrounding the return of School 12 to the City were neither unusual nor controversial.
School 15 was considered for a number of potential reuses prior to the Board's decision to return the facility to the City in June 1982. In 1976, while City officials and community members engaged in vigorous efforts to reopen School 15, Planning Director Pistone suggested the possibility of converting the facility into a nursing home in the event it was returned to the City. GX 1187.2. This use was also proposed in the City's 1977 application to the New York State Preservation League. P-I 77-9. By 1979, City officials were considering a proposal to convert the school facility into residential condominiums. P-I 199-22, 199-23. In 1980, Superintendent Raymond unsuccessfully sought funds to rehabilitate the school in order to establish teacher training and enrichment programs there. GX 279a; P-I 45-173; Tr. 11,814-15 (O'Keefe). School 15 was returned to the City in 1982 and a citizen's committee was established by the City Council to recommend a use for the School 15 site. In late 1983 and mid-1984, the City Council approved the committee's preliminary reports recommending that single-family homes be built on the School 15 site. Tr. 7796-97 (Longo).
The fate of School 4, on the other hand, was the focus of considerably greater attention. Although community efforts to reopen the school eventually subsided during the 1977-78 school year, the Board did not return the school to the City for disposition. Despite the City's precarious fiscal condition and the drastic budgetary cutbacks implemented by the Board in 1976, the Board retained the vacant School 4 facility, incurring expenses of approximately $40,000 to $50,000 a year to maintain the facility in a non-operative state. Tr. 7542-43 (Martinelli). By the late 1970's the Board had apparently abandoned any serious plans to either reopen the school or use the facility for other educational purposes. Instead, by 1979 School 4 began to be mentioned as a potential site for Section 8 subsidized housing units, while the Board continued to hold onto the property while making no educational use of the School 4 facility.
The City also exhibited little interest in either disposing of the facility or implementing some productive use. Subsequent to its closing in 1976, School 4 was recommended or otherwise under consideration for a variety of residential and commercial uses. P-I 199-6, 199-18. Such proposals, however, were generally resisted because of the possibility that City officials and community members would eventually persuade the Board to reverse its decision to close the school. Tr. 7517 (Martinelli). In 1978, VSP Co., a video and software production center, expressed an interest in acquiring the School 4 facility. The City dissuaded VSP from acquiring School 4 and instead sold the School 7 facility to VSP for a considerably lower consideration.
During 1979, by which time the efforts to reopen School 4 had subsided, School 4 began to be mentioned as a potential site for Section 8 subsidized housing. GX 1118.41, 1118.117; Tr. 7953-57 (Cipriani). In 1980, School 4 was included as one of fourteen possible housing sites submitted by the City to HUD, and was one of three sites which HUD subsequently found to be suitable for the development of subsidized housing. P-I 199-37, 199-40. However, as discussed previously in our findings, the City's actions with respect to the facility were clearly inconsistent both with any serious limitations on its ability to utilize the School 4 facility as it deemed appropriate and with any sincere intent to secure its return for purposes of developing subsidized housing at that site. See HOUSING V.F.3 supra. As late as May 1981, City Manager Eugene Fox notified HUD that no schedule had been set for the return of School 4 to the City. GX 1140.29. In August 1981, Fox notified HUD that the City was still "continu[ing] to work towards effecting the transfer of Public School 4" from the Board in order to allow for its future use as subsidized housing. GX 1140.43; Tr. 8577-80 (Schiffman). As of the end of the year, however, the Board continued to retain the school in what was almost a six year period of inactivity. Tr. 7789 (Longo).
In early 1982, Acting City Manager Theodore Garofalo was notified of a developer's interest in converting the School 4 facility into condominiums. GX 1170.7-1170.8. On March 16, the developer expressed similar interest to his successor, Sal Prezioso. GX 1170.9. Two days later, the Board and Superintendent Raymond were notified by Prezioso that a developer was interested in purchasing School 4 and converting it into "luxury-type housing". GX 1170.10. Within days, Superintendent Raymond informed Prezioso that the Board was reviewing the matter and that she had strongly recommended that the Board take some action with respect to the "unused" School 4 and 15 facilities. GX 1170.11. Three months later, the Board, now indicating that it had no plans to reopen the school or use the facility for any other educational function, returned the school to the City. P-I 199-52. Subsequently, the City proceeded toward the sale of the property to a private residential developer. An all-white citizen's committee from the School 4 area was appointed by Councilmember Cipriani to evaluate re-use proposals; the committee, unguided by City planning officials or criteria, met with three developers and recommended Morelite Construction Company, a condominium builder; and the City Council, without prior public bidding and after an acrimonious public hearing at which the community expressed strong approval of the condominium proposal and strong opposition to the possibility of developing subsidized housing at the site, voted to sell School 4 to Morelite. See HOUSING V.F.3 supra.
The City's involvement in the treatment of School 4 is illustrative of the subtle manner in which the City, assisted by the inaction of the Board, succeeded in its perpetuation of racial segregation in Yonkers. While there is little evidence of overt attempts to direct Board conduct through express communication or resolution discouraging the return of School 4 to the City, the simultaneous actions of the City and Board speak for themselves. Unlike its treatment of the other schools closed in 1976, which were either returned that year to the City, put to other educational use, or were initially unable to attract interested developers or buyers, School 4 remained in limbo to the clear financial detriment of the City, while the City engaged in a series of acts designed to impede the use of School 4 as a site for subsidized housing. Like the mayoral appointment process or the City Council's budgetary control over the school district, the City's conduct in this instance is not credibly justifiable simply by reference to state law. Instead, the Board's retention of School 4 is illustrative primarily of the manner in which the City, by its acts and omissions, utilized its relationship with the Board to successfully avoid the development of subsidized housing in East Yonkers. The sequence of events surrounding the City's treatment of the inoperative School 4 facility constitutes persuasive evidence of the City's discriminatory intent and its perpetuation of residential, and consequently school, segregation in Yonkers.
VI. CONCLUSIONS OF LAW
In the school-related portion of this case, the United States seeks to enforce the provisions of Title IV, Title VI and regulations thereunder, the fourteenth amendment, and contractual assurances made by the Board in consideration of its continuing receipt of federal financial assistance. Complaint P1. Jurisdiction is alleged to be proper under 28 U.S.C. § 1345, 42 U.S.C. § 2000c-6, and 42 U.S.C. § 2000d-1. Id. P2. The NAACP alleges violations of Title VI, 42 U.S.C. § 1981 et seq., the thirteenth and fourteenth amendments, and New York State law.
Complaint P20; p.11. Jurisdiction is alleged to be proper under 28 U.S.C. § 1343(3) and (4). Id. P3.
1. The Board of Education
The Board argues that the United States lacks standing and that this Court lacks jurisdiction over the United States' claims under either (1) Title IV, because the NAACP (the private complaining party) was able to initiate and maintain legal proceedings on its own behalf, or (2) Title VI, because the United States Department of Education did not attempt to secure voluntary compliance from the Yonkers School District prior to the initiation of this lawsuit, in accordance with applicable regulations. These contentions have been rejected in a previous Opinion of this Court. See United States v. Yonkers Board of Education, 80 Civ. 6761, slip op. at 1-2 (S.D.N.Y. Mar. 12, 1982). Accordingly, this Court has jurisdiction pursuant to the aforementioned statutes over the claims of the United States alleging unlawful school segregation by the Board. The Court also has jurisdiction, pursuant to 28 U.S.C. § 1343(3) and (4), over the NAACP's claims of unlawful school segregation brought pursuant to § 1983 and Title VI.
2. The City
The City argues that the claims of the United States alleging unlawful school segregation by the City must be dismissed. Specifically, the City contends that the four enumerated bases for the United States' claim of school segregation -- Title IV, Title VI, the fourteenth amendment, and contractual assurances by the Board -- cannot properly serve as a basis for maintaining the school-related portion of this case against the City.
The United States concedes that its Title VI claim is asserted solely against the Board, and not the City. See United States v. Yonkers Board of Education, 518 F. Supp. 191, 201 (S.D.N.Y. 1981). In addition, the United States does not contend that its contractual claim is asserted against the City.
As for the remaining grounds, the City contends that the United States lacks standing to assert Bivens -type claims directly under the fourteenth amendment, see id. at 201, and that no statute authorizes the United States to assert alleged violations of the fourteenth amendment. Therefore, the City argues, this Court lacks subject matter jurisdiction over the government's constitutional claim.
The City also argues that Title IV authorizes the Attorney General to initiate proceedings only against a "school board" and not against an entity such as the City of Yonkers, and that the government's allegations of unlawful school segregation by the City are therefore not cognizable under Title IV. According to the City, its lack of control over Board conduct and its lack of responsibility for the operation of the Yonkers public schools preclude the United States from asserting a claim of unlawful school segregation against the City pursuant to Title IV.
As for the constitutional claim, several circuit courts have held that the United States lacks standing under the Constitution to assert the constitutional claims of others. See United States v. Philadelphia, 644 F.2d 187 (3d Cir. 1980) (challenging city police department practices); United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979) (challenging conditions in state mental hospital); United States v. School District of Ferndale, 577 F.2d 1339, 1345-46 (6th Cir. 1978) (school desegregation suit brought under Equal Educational Opportunities Act); United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977) (challenging conditions in state mental hospital);
see also Estelle v. Justice, 426 U.S. 925, 49 L. Ed. 2d 380, 96 S. Ct. 2637 (1976) (Rehnquist, J., joined by Burger, C.J., and Powell,J., dissenting from denial of petition for writ of certiorari) (suggesting, in suit challenging state prison conditions, that United States lacks inherent standing to assert constitutional claims of others). Cf. Halderman v. Pennhurst State School and Hospital, 612 F.2d 84, 90-92 (3d Cir. 1979) (en banc) (allowing United States to intervene in already-commenced § 1983 suit but not deciding issue of governmental standing to initiate suit directly under Constitution), rev'd on other grounds, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981). While the first three decisions cited above relied primarily on the absence of congressional authorization of the type of lawsuit initiated by the United States, the existence of Title IV does not necessarily compel the conclusion that the United States has standing to institute school desegregation cases directly under the constitution as well. Indeed, the Ferndale decision is astute in its recognition that to permit the government to assert constititutional claims in school desegregation cases by suing directly under the Constitution would allow it to circumvent Title IV's procedural prerequisites to the assertion of equal protection violations in school desegregation cases. 577 F.2d at 1345-46. Accordingly, the existence of statutory authorization to initiate school desegregation cases would appear to reinforce, rather than undermine, the conclusion that the United States lacks standing directly under the Constitution to assert the constitutional claims of others.
It is equally clear, however, that Title IV authorizes the United States to enforce the equal protection guarantee of the fourteenth amendment. See Brown v. Califano, 201 U.S. App. D.C. 235, 627 F.2d 1221, 1232 n.67 (D.C.Cir. 1980) ("[T]he Department of Justice has standing to enforce the guarantees of equal protection, as embodied in Title IV"); United States v. School District of Ferndale, supra, 577 F.2d at 1346 n.12 ("Of course, there is nothing to prevent the Attorney General from asserting violations of the EEOA and the fourteenth amendment in the same complaint where relief is sought under both the EEOA and Title IV.") (emphasis deleted). This conclusion is supported by the language of the statute itself, see 42 U.S.C. § 2000c-6(a) ("Whenever the Attorney General receives a complaint ... that ... children ... are being deprived by a school board of the equal protection of the laws, ... the Attorney General is authorized ... to institute for or in the name of the United States, a civil action..."), and has been implicitly recognized in prior school desegregation suits brought by the United States. See e.g., United States v. Texas Education Agency, 467 F.2d 848, 853 (5th Cir. 1972) (en banc) (suit brought by United States under Title IV; court found equal protection violation); United States v. School District 151 of Cook County, 404 F.2d 1125, 1127-28 (7th Cir. 1968) (same), cert. denied, 402 U.S. 943, 91 S. Ct. 1610, 29 L. Ed. 2d 111 (1971); see also United States v. Massachusetts Maritime Academy, 762 F.2d 142, 148 (1st Cir. 1985). Thus, the United States has standing to enforce the equal protection clause of the fourteenth amendment by virtue of the express statutory authorization provided by Title IV.
The remaining novel issue, then, is whether Title IV authorizes a suit by the United States against a municipal entity such as the City of Yonkers.
In this regard, we note that the language of the statute is not as limited as the City suggests. While referring to the government's receipt of a complaint that a "school board" is denying students the equal protection of the laws and the government's obligation to provide pre-litigation notice to the appropriate "school board" of such a complaint, the statute also authorizes the Attorney General to institute a civil action "against such parties and for such relief as may be appropriate." 42 U.S.C. § 2000c-6(a). Thus, while Title IV enumerates procedural prerequisites to government-initiated school desegregation suits, nothing in the statute expressly precludes the United States from initiating such suits against parties other than school boards so long as these prerequisites have been satisfied. In addition, the statute permits the government to implead "such additional parties as are or become necessary to the grant of effective relief hereunder," thus permitting the City to be properly included as a party to any remedial proceedings insofar as both the United States and the NAACP are concerned. Cf. Plaquemines Parish School Board v. United States, 415 F.2d 817 (5th Cir. 1969) (permitting addition of Commission Council to school desegregation case pursuant to Title IV in order to prevent council from transferring school property). Finally, it is clear that this Court has jurisdiction over the NAACP's constitutional claim, brought pursuant to § 1983, of unlawful school segregation by the City under 28 U.S.C. § 1343 and thus the City is in any event a proper party to the liability phase of this lawsuit. See Arthur v. Nyquist, supra. Since allegations of intentional school segregation against parties other than school boards may be made by private litigants, we see little policy justification for more narrowly circumscribing the scope of potential parties who may be included as defendants in school desegregation cases initiated by the government under Title IV, particularly since the statute expressly contemplates the impleading of additional parties by the governments for purposes of implementing remedial measures.
The Sixth Circuit's interpretation of a similar provision contained in the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq. ("EEOA"), supports our conclusion that the City may be included as a defendant in the school desegregation portion of this case pursuant to Title IV. In United States v. School District of Ferndale, supra, the Sixth Circuit upheld the Attorney General's authority to include state officials in a school desegregation action brought pursuant to the EEOA. That statute, like Title IV, authorizes the Attorney General to institute enforcement proceedings "against such parties, and for such relief, as may be appropriate." In Ferndale, the district court held that the state defendants (the State of Michigan, the Governor, the Michigan State Board of Education, and the Michigan Superintendent of Public Instruction) were not subject to suit under the EEOA because they were not the "educational agency" which had allegedly denied individuals the right to equal educational opportunity. The court noted that the EEOA, unlike Title IV, does not authorize the Attorney General to implede additional parties for purposes of granting relief for the statutory violations of educational agencies. 400 F. Supp. at 1138-39. The Sixth Circuit reversed, finding that the indirect assistance provided by the state defendants through their financial support of the local school district and their potential involvement in future remedial phases rendered them "appropriate" parties to the litigation. 577 F.2d at 1347-48. While the legal relationship between the state and local defendants in Ferndale and the City and school officials in Yonkers is not precisely analogous, the City's budgetary and other indirect involvement in school affairs and the more expansive provisions of Title IV provide an appropriate basis for permitting the government to include the City as a party to its Title IV enforcement action.
We recognize that federalism and separation of powers principles have, in other circumstances, been recognized as relevant in determining the government's power to challenge the allegedly unconstitutional conduct of local governmental entitles. See United States v. City of Philadelphia, supra 644 F.2d at 199-203; United States v. Mattson, supra, 600 F.2d at 1300-01; United States v. Solomon, supra, 563 F.2d at 1128-29. The separation of powers concern of these decisions, however, was articulated as a reason for refusing to grant the United States standing to sue directly under the Constitution to challenge the allegedly unlawful operation of a state governmental entity. As noted previously, this holding was based primarily on the absence of any congressional authorization for the type of lawsuit initiated by the government, a circumstance which is not present in the instant case. The separation of powers concern of these decisions is thus inapposite in the circumstances of the instant case.
As for federalism concerns, we are unable to find any authority suggesting that the principle of federalism may serve as a legitimate impediment to the initiation of school desegregation suits against any and all parties who have contributed to the allegedly unlawful condition with the requisite intent. Indeed, we fail to see how the initiation of a school desegregation suit against a municipality is any more intrusive as a matter of federal-state relations than the initiation of such a suit against a school board, a suit which has never been considered to be inconsistent with our federal system of government. In this connection, we reject the City's reliance on the Board's responsibility under state law for the operation of the Yonkers public schools as a reason for precluding the government from proceeding against the City for the City's allegedly unlawful role in creating or maintaining the racial segregation of these schools. In light of the allegations of City involvement in school affairs and intentional housing discrimination, the City's separate legal status under state law cannot properly serve as a limit on the scope of congressionally granted governmental authority under Title IV to enforce federal constitutional guarantees against state and local governmental authorities whose acts and omissions create or substantially contribute to school segregation.
The Supreme Court's recognition of the importance of federalism principles in the development of federal constitutional jurisprudence is not inconsistent with this conclusion. Three decisions in particular have become particularly noteworthy in their recognition of federalism principles as a limit on the authority of federal courts to intervene in the operations of state and local government entitles. See National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976); Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976); Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). None of these decisions, however, suggest that municipal liability in the circumstances of the instant case would violate these federalism principles.
The Younger doctrine, setting limits on the extent to which federal courts may interfere with ongoing state judicial proceedings, is premised on the legitimate interest of the states in enforcing its own laws. 401 U.S. at 44-45, 51-52. Rizzo extended this principle to the executive branch of state and local governments, holding that a federal court injunction ordering a local police department to implement a variety of prophylactic procedures designed to minimize misconduct by its employees violated federalism principles by unduly interfering in the internal affairs and operations of a police department whose policies and practices were not shown to be unlawfully discriminatory. 423 U.S. at 377-80. Neither case suggests that a local governmental entity whose policies and practices are shown to be intentionally discriminatory and result in the racial segregation of its housing and schools may not be held liable for such conduct in federal court, with appropriate remedies commensurate with the constitutional or statutory violation. Unlike a state's interest in enforcing state law or a police department's interest in developing its own operational procedures free of intensive federal supervision,
the City's alleged violation of Title VIII, along with its allegedly segregative conduct affecting Yonkers public schools, cannot lay similar claim to federal judicial deference based on the desire to avoid interference with the legitimate operations of state and local governmental entitles. The government in this case does not seek to disrupt or obtain federal judicial supervision over the workings of a judicial, legislative or executive agency which has engaged in the legitimate and lawful exercise of its state authority; instead, it seeks to hold a muncipality liable for its implementation of discriminatory policies and practices in violation of federal constitutional and statutory rights. As noted previously, the government's claims against the City are difficult to distinguish, as a matter of federalism, from its claims against the Board; we find it inappropriate to create federalism-based obstacles to the government's initiation of either type of lawsuit.
As for Usery, the Supreme Court has recently overruled the Usery decision. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). We also note that the Usery decision, which held that certain areas of state governmental activity are constitutionally immune from federal regulatory power, in no way contemplated similar protection from the federal government's authority to enforce the substantive provisions of the fourteenth amendment. See Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 1923, 85 L. Ed. 2d 222 (1985); Monell v. Department of Social Services, 436 U.S. 658, 690 n.54, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n.9, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976).
In conclusion, we hold that the United States has the authority under Title IV to assert its claim of unlawful school segregation by the City of Yonkers, and that this Court has jurisdiction over the government's claim of unlawful school segregation by the City pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 2000c-6. This Court also has jurisdiction over the NAACP's claim of unlawful school segregation by the City pursuant to 28 U.S.C. § 1343(3) and (4).
As noted at the outset of this Opinion, this case is not simply another in a long line of school desegregation cases. Few cases have involved tangible inequalities in educational opportunity, as we have discussed this term, which have so closely paralleled and become intimately bound up with racial imbalance. Few cases have arisen in a political setting in which school board policy was a subject to municipal influence as in Yonkers. No case has ever previously been brought in which a court was asked to determine the liability of state actors for both housing and school segregation. And no case has ever considered the legal ramifications of the confluence of these unique and important considerations. We must therefore examine closely each of these considerations, together with the other acts and omissions of the school board, in order to determine whether legal responsibility for the racial segregation of Yonkers public schools may properly be placed with the Board or the City, or both.
1. The Board of Education
a. Independent Conduct of School Authorities
The record has demonstrated an absence of any consistent pattern of segregative school openings or closings or racial gerrymandering of attendance lines which have had systemwide segregative impact. Individual, deliberately segregative school opening, closing, and attendance zone decisions, however, have occurred. The consistent impact of these decisions -- the setting and adherence to School 1's original attendance zone boundaries (1938 to 1954), the events leading up to attendance zone boundary changes between Schools 6 and 25 (1948), the pattern of segregative changes to the attendance zone boundary separating Schools 16 and 25 (1953-68), the reassignment of minority Runyon Heights students from Emerson to Burroughs (1973), the opening of Commerce Middle School (1973) -- was to avoid the assignment either of Northwest Yonkers white students to disproportionately minority schools or of minority students to disproportionately white Northwest Yonkers schools. While most of these decisions were followed by subsequent developments with respect to the particular school or group of students which were desegregative in varying degrees -- the closing of School 1 (1954), the redrawing of the School 6/25 attendance zone boundary (1948), the reassignment of Runyon Heights students from Burroughs to Whitman (1978), the closing of Commerce Middle School (1976) -- these decisions nevertheless have reinforced the racial imbalance between Southwest and Northwest Yonkers schools and thus contributed to the racial identifiability of these areas.
The segregated condition of many Southwest Yonkers schools (elementary schools in particular) cannot be similarly traced to affirmative, intentionally segregative changes in attendance zones or student assignment decisions. The Board, however, has not completely eschewed segregative decisionmaking in other areas of school operations affecting Yonkers public schools. In four areas, the Board has engaged in unlawfully discriminatory acts and omissions, all of which have had systemwide impact and have served to perpetuate racial segregation in public schools and discriminatory attitudes in the Yonkers community. Thus, while the Board's perpetuation of school segregation in Yonkers was not overt or explicitly proclaimed, the Board has affirmatively contributed to an appreciable degree to this condition.
One area in which the Board has exhibited segregative intent with current segregative impact is in the assignment of faculty and administrative staff. The intentional segregation of school faculty is an important factor in evaluating whether a school board has acted with segregative intent in the operation of its school system as a whole. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971); Diaz v. San Jose Unified School District, supra, 733 F.2d at 670; Reed v. Rhodes, supra, 607 F.2d at 725; Oliver v. Michigan State Board of Education, supra, 508 F.2d at 185; Arthur v. Nyquist, supra, 415 F. Supp. at 945. While such segregation does not establish a prima facie case of intentional segregation of students, see Columbus Board of Education v. Penick, supra, 443 U.S. at 536 n.9, it is nevertheless a significant indication of school board intent in general. In addition, while the segregation of faculty is not necessarily a substantial or significant causal factor in the perpetuation or exacerbation of school segregation, see Diaz v. San Jose Unified School District, 518 F. Supp. 622, 641 (N.D.Cal. 1981), rev'd on other grounds, 733 F.2d 660, 670 (9th Cir. 1984) (en banc), cert. denied, 471 U.S. 1065, 105 S. Ct. 2140, 85 L. Ed. 2d 497 (1985); Alexander v. Youngstown Board of Education, 454 F. Supp. 985, 1072 (N.D.Ohio 1978), aff'd, 675 F.2d 787 (6th Cir. 1982); Higgins v. Board of Education of Grand Rapids, 395 F. Supp. 444, 478-79 (W.D.Mich. 1973), aff'd, 508 F.2d 779 (6th Cir. 1974), such segregation frequency has been found to be a significant contributor to school segregation. See Reed v. Rhodes, supra, 607 F.2d at 725; NAACP v. Lansing Board of Education, supra, 559 F.2d at 1052; Morgan v. Kerrigan, supra, 509 F.2d at 597-98; Armstrong v. O'Connell, supra, 463 F. Supp. at 1306-07.
The Board's staff assignment practices are significant both as a matter of intent and segregative impact. The assignment of disproprotionate numbers of minority staff to disproportionately minority schools in Southwest Yonkers served as a clear indication that racial segregation was acceptable even where residential segregation and transportation concerns did not impede the implementation of race-neutral assignment policies. While the mathematical extent of staff segregation in Yonkers public schools was not overwhelming, the Board's assignment policies had an appreciable impact on the schools, with their most segregative impact occurring during the period of most intensive subsidized housing development in Southwest Yonkers. Cf. Diaz v. San Jose Unified School District, supra, 518 F. Supp. at 641 (insignificant segregative impact found where faculty segregation exceeded 15% minority staff in any one school in only two instances). The segregation of staff not only impacted upon Southwest and East Yonkers schools in a racially segregative fashion, but also was exacerbated by the relative inexperience of minority staff members and by the assignment of minority Special Education teachers to predominantly white schools. Cf. Morgan v. Kerrigan, supra, 509 F.2d at 596; Berry v. Benton Harbor, supra, 442 F. Supp. at 1301-02. The district's belated and limited efforts to rectify this condition did not eliminate the segregative impact of its previous assignment practices. Like the City's confinement of subsidized housing to Southwest Yonkers, the Board's staff assignment practices are most significant by virtue of the confirmatory impact which they had on racial segregation in Yonkers public schools as a whole.
The Board's vocational education program has also been affected by the discriminatory practices over the years. The steering of minority students into such programs, followed by the continued adherence to knowingly segregative screening policies, both operated to deprive minorities (particularly blacks) of equal education opportunities on the secondary school level. As with staff assignments, school authorities were for many years relatively unresponsive to the the acknowledged disproportion in minority enrollment in vocational programs and did relatively little to overcome the previously created disincentives for enrolling in these programs. As a consequence, minority students were disproportionately affected by inadequacies in the secondary school curriculum at Gorton and Yonkers High Schools, a condition which also existed for several years.
The district's operation of its Special Education program, while not "segregative" in and of itself, was nevertheless marked by discriminatory treatment of minority students which served to reinforce community opposition to desegregation. Minority students not only were assigned in disproportionate numbers to such classes but also were accorded treatment entirely inconsistent with the Board's general neighborhood school policy. While the district made concerted efforts to rectify discriminatory aspects of the program, the impact of its prior practices, along with other unremedied practices, continued up to the filing of this lawsuit. The operation of the Special Education program reinforced discriminatory community attitudes toward minorities in a manner consistent with the City's implicit recognition of and responsiveness to similar attitudes in its development of subsidized housing policies. Cf. United States v. Texas Education Agency, supra, 600 F.2d at 526-27 (foreseeable and unforseen segregative impact of intentionally discriminatory act constitutes part of constitutional violation); Arthur v. Nyquist, supra, 415 F. Supp. at 929 (discussing significance of school board conduct which contributes to discriminatory attitudes of white community members).
The Board's student assignment practices on the secondary school level were also marked in some instances by segregative intent. While the Board closed Commerce in 1976 and reassigned some of its minority students to Emerson, this action was taken only after the Board's deliberately segregative opening of Commerce three years earlier. In addition, the district maintained the Longfellow and Fermi facilities in an underutilized and racially imbalanced condition despite the availability of additional space at physically superior, predominantly white East Yonkers schools and the proximity of white East Yonkers middle school students to these two Southwest Yonkers schools. The frequently mentioned possibility of effectuating desegregation among the district's high schools was acted upon only in 1973 (the Homefield redistricting) despite the acknowledged limited relevance of neighborhood school policy considerations in determining secondary school student assignments.
The Board's rejection of desegregative school reorganization proposals is also relevant to the liability determination. Under similar circumstances, The Supreme Court has held that the question of whether a rescission of previous board action is in and of itself a violation of appellants' constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it intitially took.... If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution.
Dayton Board of Education v. Brinkman, 433 U.S. 406, 414, 53 L. Ed. 2d 851, 97 S. Ct. 2766 (1977) (quoting Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir. 1074)).
Other courts have similarly noted that the rejection of integrative proposals, while not unlawful by itself, is evidence of segregative intent which, along with other evidence of intent, can form the basis for a finding of unlawful school segregation. Armstrong v. Brennan, supra, 539 F.2d at 636 ("In finding discriminatory intent, the District Court could properly consider, together with other evidence, defendants' refusal to adopt integration proposals [citations omitted], even though that refusal alone would not prove the requisite intent."), vacated on other grounds, 433 U.S. 672, 97 S. Ct. 2907, 53 L. Ed. 2d 1044 (1977)
,; Oliver v. Michigan State Board of Education, supra, 508 F.2d at 186 (revocation of desegregation plan "in light of the prior cumulative constitutional violation by the school authorities, is further evidence of the Board's racially segregative purpose").
Consistent with the above principles, the rejection of or failure to implement school desegregation plans has been the basis for a finding of unlawful segregation in two general contexts. First, the failure to implement school desegregation plans, particularly when in response to racially motivated community opposition, has been deemed unlawful where the state has previously been found to have operated a dual school system. See Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 13; Green v. County School Board, 391 U.S. 430, 437-38, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968); Cooper v. Aaron, 358 U.S. 1, 15-16, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958). In such cases, a school board is under a legal obligation to eliminate the segregative effects of prior de jure segregation, and courts have held that community resistance to the performance of such an obligation cannot justify a failure to remedy school segregation. See, e.g., United States v. Scotland Neck City Board of Education, 407 U.S. 484, 491, 33 L. Ed. 2d 75, 92 S. Ct. 2214 (1972); Monroe v. Board of Commissioners of Jackson, 391 U.S. 450, 459, 20 L. Ed. 2d 733, 88 S. Ct. 1700 (1968).
Second, the refusal to implement desegregation plans has been held to constitute a basis for a finding of unlawful school segregation where this refusal has been combined with other affirmative acts of segregation. In the principal cases in which such findings have been made, the respective school boards were also found to have engaged in a number of other acts involving student assignment policies which were clearly consistent, in terms of segregative intent, with the refusal to desegregate. See Arthur v. Nyquist, supra, 573 F.2d at 144-45 (redistricting of high school, language transfer policy, districting of junior high school, use of optical attendance zone areas, discriminatory vocational school admission policy, and racially discriminatory staff recruiting and assignment); Armstrong v. Brennan, supra, 539 F.2d at 629-32 (pattern of segregative boundary changes, intact busing, open transfer policy, and faculty segregation); Morgan v. Kerrigan, supra, 509 F.2d at 586-98 (segregative reassignments and use of portable classrooms in response to overcrowding, use of segregative feeder patterns and transfer options, open enrollment and controlled transfer policies, discrimination in staff assignment and promotion, and segregative redistricting); Oliver v. Michigan State Board of Education, supra, 508 F.2d at 185-86 (segregative attendance zone policy, school construction and siting policy, staff assignment policy, conscious neglect of opportunities to decrease segregation, lack of minority staff); United States v. School District 151, supra, 404 F.2d at 131-32 (segregative transfer policy, boundary changes, busing policy, and faculty assignments, affecting three of district's six schools).
In our view, the Yonkers Board of Education's refusal to adopt desegregative school reorganization proposals does not fall precisely within either category of cases. The Board has not failed to fulfill an obligation to dismantle a dual school system; nor has it engaged in what, standing alone, could fairly be characterized as a significant number of affirmative acts of intentional segregation in the area of student assignments, particularly on the elementary school level. This fact, however, does not end our inquiry into the legal significance of the Board's failure to adopt desegregative reorganization plans for Yonkers public schools. In our opinion, two other critical factors must be examined before this issue can be properly resolved.
b. Denial of Equal Educational Opportunity
The Yonkers public schools not only are racially segregated, but also are unequal in the quality of educational opportunity afforded to students in these schools. As a factual matter, the existence of such disparities has clearly worked to the disadvantage of minority students, who for many years have received their educational instruction in generally inferior facilities, from generally less experienced staff, in generally more overcrowed overcrowded and unstable conditions. On the secondary school level, minority students were generally more likely to be deprived of the full benefits of the district's academic and vocational programs.
The significance of the disparties in educational opportunity in Yonkers public schools lies, for these purposes not in the manner of their creation but in the reasons underlying their perpetuation. Disparities in the quality of school facilities, the scope of curricular offerings, staff experience, or student enrollment and turnover, were not created by discriminatory allocations of funds or other resources; some disparities existed well before the presence of significant numbers of minorities in the city. Cf. Bell v. Board of Education, Akron Public Schools, 491 F. Supp. 916, 941 (N.D.Ohio 1980), aff'd, 683 F.2d 963 (6th Cir. 1982); Berry v. Benton Harbor, supra, 442 F. Supp. at 1306. At the same time, however, the Board's more recent conduct served to perpetuate many of these inequalities, thus depriving many minority students of an educational experience comparable to that available at other public schools in Yonkers. Such a condition was not simply a foreseeable result of the Board's segregative policies and practices. Cf. NAACP v. Lansing Board of Education, supra, 429 F. Supp. at 602-04; Oliver v. Kalamazoo Board of Education, 368 F. Supp. 143, 174-75 (E.D.Mich. 1973) (school board found liable where result of board's school construction and boundary policy was that "old schools were left to Blacks"), aff'd, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975). Rather, this is a case in which school authorities essentially acknowledged the disparities in educational opportunity in the district and the fact that some form of desegregative school reorganization would be necessary to alleviate these disparities. The district did implement some measures to address these inequalities, such as closing old, racially imbalanced schools in Southwest Yonkers (1976), the consequent rise in staff experience in those schools, and improvements in secondary school curriculum. However, the district repeatedly refused to implement more comprehensive desegregative measures to correct these disparities -- the failure to proceed with desegregation efforts in the early 1970's, the rejection of the NYU Report proposals, and the refusal to adopt any of the Task Force or Phase II desegregation proposals or any alternative to these proposals -- partly because of the desegregative consequences which such proposals would have entailed. This racially influenced failure to implement desegregative school reorganization proposals resulted in the perpetuation of the remaining educational inequalities among the district's schools.
The identifiability of schools as "minority" and "white" based on educational and physical disparities has been considered an indication of unlawful segregation in cases involving state-mandated dual school systems, see Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 18, and in cases in which school authorities have otherwise been responsible for creating unlawfully segregated schools by their own discriminatory conduct, see Oliver v. Michigan State Board of Education, supra, 508 F.2d at 185; Berry v. Benton Harbor, supra, 442 F. Supp. at 1302. While the disproportionate expenditure or allocation of resources to benefit white schools rather than minority schools is one obvious basis for a finding of intentional discrimination in the provision of educational opportunity, see Berry v. Benton Harbor, supra, 442 F. Supp. at 1306, we believe that these disparities have legal significance here as well. The denial of educational opportunities in Yonkers has transcended the lack of the "melting pot" effect of racial integration; it has instead been characterized by tangible inequalities in the quality of education similar to those which characterized the inherently unequal segregated schools proscribed in Brown and its progeny. In this case, although the City's intentional housing discrimination contributed substantially to the continued confinement of minorities in educationally inferior schools, the school also knowingly maintained and perpetuated considerable inequality in educational opportunity in the schools, its failure to rectify this condition being partly attributable to its refusal to implement reorganization proposals such as the NYU Report proposals (or suggested alternatives), the Task Force proposals, Phase II, or any desegregative alternative to these plans. In our view, the significant disparities in educational opportunity described in our factual findings and the circumstances surrounding their perpetuation are important factors in determining whether the Board is legally responsible for perpetuating the segregated condition of Yonkers public schools.
c. Subsidized Housing Discrimination
The manner in which the racial segregation of Yonkers public schools has developed requires us to examine the relevance of a city's discriminatory housing practices to the liability of school authorities for school segregation. Cf. Arthur v. Nyquist, supra, 573 F.2d at 145 n.22 (expressly declining to determine relevance of public housing descrimination in school desegregation case); Hart v. Community School Board, supra, 512 F.2d at 56 (city, state and federal housing authorities held not liable on the merits for housing policies); Brody-Jones v. Macchiarola, supra, 503 F. Supp. at 1236-37 & n.27 (absence of findings regarding governmental housing practices; court noted that housing authority was not a party to litigation). While we do not decide this case on an entirely clean slate, the collective wisdom of the courts with respect to this issue has yet to result in a consistent legal principle capable of definitive application to the unique circumstances of this case.
Several earlier school desegregation cases discussed the relevance of public housing discrimination in the context of determining the constitutionality of school board adherence to a neighborhood school policy. These cases generally held that a school board's application of a neighborhood school student assignment policy was constitutionally unacceptable where discriminatory public housing practices had contributed to the racial segregation of the neighborhoods. See United States v. Texas Education Agency, supra, 467 F.2d at 863-64 n.22 ("When the segregated housing patterns are the result of 'state action', we are faced with double discrimination.") (emphasis in original); Arthur v. Nyquist, supra, 415 F. Supp. at 968-69 ("Given the purposeful residential segregation in the City of Buffalo, the School Board's 'neighborhood school policy' was not, and could not be, racially neutral."); Oliver v. Kalamazoo Board of Education, supra, 368 F. Supp. at 183 ("The school board should not be heard to plead that its neighborhood school policy was racially neutral when in fact 'state action under the color of law' produced or helped to produce the segregated neighborhoods in the first place."). But see Deal v. Cincinnati Board of Education, supra, 369 F.2d at 60 n.4 (evidence of public and private housing discrimination properly excluded from school desegregation case against school board).
More recently, courts have expressed some reservations as to the legal validity of this conclusion. Starting with the opinion of three Supreme Court Justices in Austin Independent School District v. United States, 429 U.S. 990, 50 L. Ed. 2d 603, 97 S. Ct. 517 (1976), and continuing with a series of Sixth Circuit rulings, recent school desegregation decisions have suggested that school officials cannot be held liable for racial imbalance in the schools which results from the discriminatory housing practices of other governmental actors. See Austin, supra, 429 U.S. at 994 (Powell,J., concurring, joined by Burger, C.J., and Rehnquist,J.) ("The principal cause of racial and ethnic imbalance in urban public schools across the country -- North and South -- is the imbalance in residential patterns. Such residential patterns are typically beyond the control of school authorities. For example, discrimination in housing -- whether public or private -- cannot be attributed to school authorities. Economic pressures and voluntary preferences are the primary determinations of residential patterns.") (footnote omitted); Bell v. Board of Education, Akron Public Schools, 683 F.2d 963, 968 (6th Cir. 1982) ("Under [the argument that a school board otherwise innocent of segregative intent is liable for the discriminatory housing practices of other governmental agencies] the discriminatory conduct of the FHA in making housing loans and local housing authorities in the construction and rental of public housing is attributable to school boards. Such a proposal places too heavy a burden on the schools to remedy wrongs for which they are no more or less responsible than the plaintiffs, the courts, the churches, the Congress or other institutions. Plaintiffs do not suggest how the schools, after a finding of liability, would go about remedying this problem or what kind of order a federal court could enter that might as a practical matter have a chance of changing the fact that black and white families live in separate neighborhoods in most towns and cities."); Higgins v. Board of Education of Grand Rapids, supra, 508 F.2d at 788-89 ("In Deal..., this Court decided that discrimination by other than school authorities cannot be relied upon as the sole basis for showing a violation by the school board."); Bronson v. Board of Education of the City School District of Cincinnati, 578 F. Supp. 1091, 1104-05 (S.D.Ohio 1984) (citing Bell and Deal); see also Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 42 (W.D.Mo. June 5, 1984) (denying interdistrist interdistrict school desegregation remedy).
In addition, some of the earlier precedents discussed previously have either lost some of their precedential weight or are factually distinguishable from this case. The Texas Education Agency decision also held that a school board's assignment of students and implementaion of school site selection and construction policies based on segregated housing patterns, whether publicly or privately caused, is unconstitutional; a subsequent decision in that litigation more explicitly equating adherence to a neighborhood school policy in a residentially segregated district with segregative intent was vacated by the Supreme Court in Austin. 429 U.S. at 991-92 n.1. Arthur v. Nyquist, decided prior to Austin, involved evidence of a host of school board acts and omissions which were designed to perpetuate and enhance segregation in the schools. In the instant case, the record contains substantially less (or no) evidence of many of the classic segregative student assignment techniques -- optional or non-contiguous attendance zones; segregative out-of-district transfer policies; a pattern of segregative school openings, closings, or racial gerrymandering of attendance lines -- some of which were found to exist to a significant degree in Arthur.
The legal relevance of public housing discrimination to school segregation, however, has not been definitely resolved. A number of cases decided prior to Austin expressly or implicitly declined the opportunity to examine the relevance vel non of public housing discrimination in a school desegregation case. See Milliken v. Bradley, 418 U.S. 717, 728, n.7, 41 L. Ed. 2d 1069, 94 S. Ct. 3112 (1974); Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 23; Arthur v. Nyquist, supra, 573 F.2d at 145 n.22; see also Oliver v. Michigan State Board of Education, supra, 508 F.2d at 183-85 (affirming lower court finding of segregative intent on other grounds). Even the Sixth Circuit's decisions are premised on the notion that housing discrimination cannot serve as a basis for finding school board liability for school segregation in the absence of any evidence that school officials themselves have engaged in intentionally segregative conduct, a circumstance not present here. Bell v. Board of Education, Akron Public Schools, supra, 683 F.2d at 968; Higgins v. Board of Education of Grand Rapids, supra, 508 F.2d at 788. Since Austin, only one case, decided less than two months after the Supreme Court's 1979 Columbus and Dayton school desegregation decisions, has reaffirmed the principles enunciated in Arthur and Oliver. See Reed v. Rhodes, 607 F.2d 714, 730 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S. Ct. 1329, 63 L. Ed. 2d 770 (1980). In Reed, however, the court's finding of segregative intent was based not simply on the school board's adherence to a neighborhood school student assignment policy despite the existence of public housing discrimination, but on the school board's willing and repeated construction of schools to service public housing projects which the board knew from the outset would be racially identifiable. Id. at 729-30; see also Oliver v. Kalamazoo Board of Education, supra, 368 F. Supp. at 171-72 (school board's cooperation with real estate developers in constructing school for private housing development in previously undeveloped area of city constituted intentional promotion and creation of residential and school segregation). If any trend in the law can be discerned, it consists of an increasing focus on whether some meaningful connection exists between the policies of public housing officials and the policies of school board officials. See Reed v. Rhodes, supra; Bronson v. Board of Education, supra, 578 F. Supp. at 1104-05; Brody-Jones v. Maccharola, supra, 503 F. Supp. at 1236-37 n.27 (absence of findings regarding governmental housing practices "does not preclude consideration of the extent to which defendant school officials by their actions and inaction may deliberately have sought to build upon and enhance the effects of existing residential segregation").
A number of factors convince us that the existence of subsidized housing discrimination in Yonkers must be accorded legal relevance in determining whether school authorities may be held legally accountable for the segregation of Yonkers public schools. Of primary significance is the fact that the City has been found liable, under relevant legal standards, for intentionally maintaining and exacerbating racial segregation in Yonkers. This determination reflects the fact that a state actor in Yonkers has been found to have unlawfully contributed to a condition of racial segregation in the community's housing, with a segregative impact on its public schools, while another state actor in Yonkers has largely failed to alleviate (and in some ways has exacerbated) the racial segregation of that same community's schools. It is undisputable that a hypothetical single state agency which controls the operation of, and engages in the racial segregation of, both housing and schools -- by confining for racial reasons the city's subsidized housing to one section of the city, while simultaneously adhering to a neighborhood school policy of student assignment -- can be held liable for such conduct. It is inconceivable that state action may be fractionalized such that two state agencies could be permitted to collectively engage in precisely the same conduct, yet avoid legal accountability for the identical result. It is this principle which we believe underlies the earlier cases involving the relevance of public housing segregation to school board liability: where school officials knowingly adhere to a segregative student assignment policy which is consistent with city officials' unlawfully segregative conduct in housing, such a policy cannot, as a legal matter, be considered race-neutral. To hold otherwise would advance no significant constitutional principle of equality or non-discrimination, and would simply lend credence to a legal doctrine which permitted school segregation to withstand constitutional scrutiny solely by virtue of the two-pronged nature of the state action which intentionally contributed to, perpetuated, and enhanced this condition.
The relevance of subsidized housing discrimination in Yonkers to school board liability is highlighted by the process by which school segregation was effectively insured. Even acknowledging that the Board and City are separate actors under state law, the manner in which mayoral appointments to the Board were made in Yonkers rendered this legal separation an artificial and constitutionally insignificant one. These appointments not only reflected a pattern of decisionmaking by a municipal authority consistent with the disciminatory practices of other municipal officials; through these appointments, the City and Board also created a consistency between housing and school policies which the Board had previously resisted. The record also persuasively undermines any argument that this consistency between the City's confinement of subsidized housing to Southwest Yonkers and the school board's failure to implement any significant desegregative school reforms was coincidental; rather, the combination of the City's housing policies, the mayoral appointment of Board members and the subsequent inaction of the Board amounted to an interrelated governmental effort to preserve the integrity of "neighborhood schools" whose racial segregation was governmentally sanctioned and steadfastly maintained. In our view, liability for school segregation cannot properly rest on artificial distinctions between "City" and "Board" conduct which do not reflect the practical interrelationship between the policies of these state actors. Where a city official exercises power over school board appointments as a means of furthering the city's segregative objectives and discouraging comprehensive reform, it would be anomalous to hold simultaneously that a school board's effectuation of these objectives is irrelevant in determining its liability for resulting school segregation.
The Board's failure to act is also not merely an unadorned "omission" which alone cannot ordinarily support a finding of unlawful segregation. Cf. Hart v. Community School Board, supra, 512 F.2d at 48 ("We assume that mere inaction, without any affirmative action by the school authorities, allowing a racially imbalanced school to continue, would amount only to de facto rather than de jure segregation.") Apart from the Board's other acts and omissions which perpetuated racial segregation in various aspects of the school district's operation, the Board's failure to adopt Phase II
or any other substitute or alternative plan was a failure to act emanting from a pattern of mayoral appointments of Board members who would be considerably less inclined to act to undo the segregative impact of prior housing and school policies. The Board's conscious neglect of the racial imbalance of the Yonkers public schools was thus not an isolated, race-neutral failure to alleviate segregation, but instead solidified the segregative impact of the official acts and omissions of housing and school authorities preceding it.
The interconnection between mayoral appointments to the Board and the Board's subsequent failure to remedy the racial imbalance in the schools is made strikingly apparent by comparing the Board's conduct prior and subsequent to the district's most concerted examination and consideration of the problem of school segregation. Prior to Mayor Martinelli's complete replacement of incumbent Board members in 1978, school officials had rejected, ignored or resisted virtually all of the City's frequently segregative initiatives: the request to reconsider the closing of School 1; the site selection for the new Yonkers High School; changes in plans for the construction of School 10; proposed attendance zone boundary changes during the mid-1970's; the proposed conversion of the school system to a K-8, 9-12 grade structure. As Mayor Martinelli appointed new members to the Board, school district affairs gradually became increasingly more in tune with the City's own objectives: the tabling of a school board resolution to return closed school facilities to the City; the rejection of Phase II; the failure to implement any alternative proposal for alleviating the racial imbalance of the schools. The Board's refusal to take steps to desegregate the schools not only reflected the opposition of a community which had for years played a similar role in causing and sustaining the City's discriminatory housing practices, but also was consistent with the Mayor's acknowledged preference for neighborhood schools, whose segregated condition had been maintained and exacerbated by such practices. In these circumstances, we conclude that it is reasonable and proper to hold the Board jointly liable with the City for perpetuating the racial imbalance of Yonkers public schools.
The Board's reliance on its neighborhood school policy cannot properly immunize its resulting perpetuation of racial segregation in Yonkers public schools. The Board's increasingly rigid adherence to the policy is inconsistent with both racial and non-racial considerations. Prior to the 1960's, the concept of neighborhood schools did not preclude susbtantial substantial crosstown or out-of-neighborhood assignment of students, not only on the secondary school level but also on the elementary school level (the most notable examples being the segregative reassignment of white students from Schools 1 and 25 to virtually all-white Northwest Yonkers schools). The more steadfast application of the policy has instead paralleled the increased development of subsidized housing in Southwest Yonkers and has persisted despite the fact that relative school utilization, fiscal instability, and disparities in educational opportunity, in addition to racial imbalance, would have been expected to lead to at least some significant alteration of student assignment patterns. The policy also did not preclude the district from assigning Special Education students in a manner entirely inconsistent with neighborhood schooling, see Armstrong v. Brennan, supra, 539 F.2d at 636-37, and was of considerably less import on the secondary school level. And as noted above, the existence of intentional housing discrimination which contributed to the confinement of minorities to Southwest Yonkers, together with the Board's application of an educational philosophy consistent with this practice, detracts significantly from the claim of race-neutrality.
The Board's recognition that "white flight" from the public schools was a likely consequence of Phase II's adoption, even if accurate, is not a legally acceptable explanation for its actions and omissions. White flight may in certain circumstances be a proper consideration in devising and implementing a volunatry voluntary desegregation plan. See Parent Association of Andrew Jackson High School v. Ambach, supra, 598 F.2d at 719-20; Higgins v. Board of Education of Grand Rapids, supra, 508 F.2d at 794. Yet the Board's refusal to adopt Phase II or to give serious consideration, either prior to or subsequent to Phase II, to any other significant desegregation proposal, belies any legitimate consideration of such consequences as an explanation for its inaction. The Board's refusal to implement Phase II of any alternative plan resulted in the perpetuation of racial imbalance and educational inequalities of which the Board was long aware and had only begun to confront in any meaningful fashion at the time of the 1976 fiscal crisis. While the late 1960's and early 1970's were marked by some efforts to alleviate the increasing racial imbalance in the schools, the segregative decisions made both at the that time and afterward suggest that the white flight concern was advanced primarily in order to justify or explain the district's deliberate perpetuation of segregation rather than as a legitimate consideration in devising means by which to more effectively promote desegregation. See id. at 720; Brody-Jones v. Macchiarola, supra, 503 F. Supp. at 1242. The possibility of white flight cannot be invoked in an effort to avoid or abandon efforts to desegregate schools whose racial imbalance is the result of prior unlawful acts. See Hart v. Community School Board, supra, 383 F. Supp. at 742-43. We find its invocation equally untenable here, where the Board's own prior acts and omissions -- its assignment of minority Special Education students to predominantly white schools, its assignment of minority staff to predominantly minority schools, the continued disparities in educational opportunity at identifiably minority and white schools, and the rejection of the NYU Report proposals -- served to foster and encourage such attitudes. See Arthur v. Nyquist, supra, 415 F. Supp. at 929.
Based on all of the above considerations, we hold that the Board's failure to implement measures for alleviating systemwide school segregation, in the context of the totality of all of its actions and omissions, is sufficient to render it legally responsible for the perpetuation of racial segregation in Yonkers public schools. All significant plans to effectuate systemwide desegregative school reorganizations and/or equalize educational opportunities in Yonkers met with disapproval or resistance: the efforts of state education authorities in the early 1970's; the 1972 NYU Report proposals; the 1976-77 Task Force recommendations; the 1977 Phase II plan. Although the district was not without desegregative initiatives -- for example, the planned opening of School 10 and King, and school closings in 1976 which resulted in the elimination of a number of racially isolated schools and the reassignment of some students in a desegregative manner (to Schools 13, 27, 31, Emerson and Burroughs) -- even these measures were recognized merely as initial steps toward a more comprehensive alleviation of racial imbalance in Yonkers public schools. The Board's failure to implement any such plan, its knowing perpetuation of inequalities in educational opportunity, and its other acts of intentional discrimination, were consistent with the principal segregative motive underlying the City's housing policies and practices: the general confinement of minorities to Southwest Yonkers.
The Board has likewise failed to satisfactorily establish that its segregative acts and omissions would have occurred "even if" racial considerations had been ignored. Indeed, certain features of school district operations, such as the steering of minorities, the Special Education program, and the assignment of teachers and administrative personnel, would certainly have been different had racial facators not played the primary role which they actually did. At least some of the inequalities in educational opportunity discussed in our findings would surely have been remedied (or remedied more quickly) had desegregation not been one of the likely consequences of such action. To the extent the Board's persistent refusal to implement desegregative reorganization plans can even be evaluated on an "even if" basis, we are persuaded that, as with the City's consistently segregative subsidized housing site selections, a different pattern of decisionmaking would have occurred had the Board's awareness of and responsiveness to racially influenced community opposition not been present.
In conclusion, we hold that the Board is liable for the racial segregation of Yonkers public schools.
2. The City
The liability of a municipal entity for the racial segregation of a state-created school system turns on the resolution of two questions: first, whether such an entity may ever be subject to such liability; and second, under what circumstances such liability may be imposed.
The Second Circuit's decision in Arthur v. Nyquist answers the first question in the affirmative and sheds light on the second. In Arthur, the district court held the City of Buffalo's Common Council liable for the racial segregation of the Buffalo public schools based on the Common Council's opposition to school integration and its role in causing and maintaining segregated housing conditions. As for its opposition to school integration, the court found that the Common Council had demonstrated its segregative intent in three ways. First, the Council adopted an ordinance barring the use of portable classrooms after the Board had agreed to purchase them in an effort to increase the capacity of white schools and thereafter reassign minority students to these schools. Second, the Council refused to provide funds for the implementation of a desegregative middle school program developed by the Board. Third, the Council insisted on limiting the number of blacks at a high school whose acquisition from the city's Catholic Diocese was under consideration by the Council. 415 F. Supp. at 953-55. The court also found that the Common Council and city housing authorities had helped cause or maintain residential segregation through its urban renewal program, in which dislocated black families were relocated in a geographically limited, minority populated area of the city. The court held that the Common Council's segregative conduct with respect to housing constituted a separate and independent ground for holding it liable for the segregation of the Buffalo public schools. Id. at 969.
The Court of Appeals affirmed the district court's determination of municipal liability solely on the ground that the Common Council "aided the Board [in resisting the State's order to integrate] by systematically denying funding to programs which would have encouraged integration." 573 F.2d at 145. The court did not examine the other school-related bases for the Common Council's liability and expressly declined to reach the issue of the relevance of the municipality's role in furthering housing segregation. Id. at 145 & n.22. Thus, although the holdings of the district court and the Court of Appeals differ with respect to the circumstances under which a municipal entity may be held liable for school segregation, both decisions recognize that a city may be held liable for the racial segregation of state-created public schools.
In support of its argument that the City is not a proper defendant in the school desegregation portion of this case, the City cites Greenhouse v. Greco, 617 F.2d 408 (5th Cir. 1980), and United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir. 1979), for the proposition that the City's mere exercise of political influence over the Board is insufficient to render it liable for the segregation of the Yonkers public schools.
In Greenhouse, the fifth Circuit held that the district court did not abuse its discretion by dismissing the Diocese of Alexandria (a church district encompassing twenty-nine counties of the State of Louisiana) and the diocesan bishop and school superintendent from a parochial school desegregation case. Significant differences exist, however, between the church district in Greenhouse and the City of Yonkers and their respective relationships with the school systems at issue in each case. The diocese and bishop had no legal relationship with or legal authority over any of the church corporations which, like the Yonkers Board of Education, were directly responsible for the operation of the diocesan parochial schools. Thus, "[a]ny and all assistance rendered to each school by the Bishop and/or the Diocese [wa]s entirely voluntary", and each church corporation was "subject to the bishop's authority only by virtue of religious obedience to canon law." Id. at 411, 414. According to the court, the weight wielded by the bishop consists of moral persuasion backed by possible religions sanctions. He simply does not have the legal power traditionally found
in civil government, nor does he have the legal standing to carry out any integration decrees which may eventually be issued by a federal court. It is apparent that only the individual church corporations may respond in this regard.
Id. at 414 (footnote deleted). In Yonkers, the legal relationship between the City and Board is significantly different. Despite their legal autonomy under state law, the City is legally responsible for allocating funds to the school district, for appointing school board members, and for retaining legal title to property designated for educational use. More importantly, the City may indeed be called upon to respond to school desegregation decrees issued by a federal court. See Arthur v. Nyquist, 712 F.2d 809 (2d Cir. 1983) (ordering city of appropriate additional funds to school board to enable board to implement school desegregation plan), cert. denied, 466 U.S. 936, 104 S. Ct. 1907, 80 L. Ed. 2d 456 (1984); see also United States v. Board of School Commissioners of Indianapolis, supra (restraining city housing authority from developing public housing projects in city as part of interdistrict school desegregation remedy). Finally, the City's capacity to significantly affect the reacial composition of the City of Yonkers and the Yonkers public schools by virtue of its subsidized housing policies and practices and its involvement in school-related affairs far exceeds the practical capacity of the diocesan defendants in Greenhouse to have similarly affected the racial composition of the diocesan parochial schools. Thus, the concerns expressed by the Fifth Circuit in Greenhouse are simply not apposite in determining the liability vel non of the City of Yonkers in this case.
Hirst is more easily distinguished. In Hirst, an employment discrimination case brought by city fire department employees against various city departments and officials, the court dismissed plaintiffs' claim against the mayor and the City Council based on the absence of any allegation that these defendants could "control, or interfere with, the employment practices of the police department." 604 F.2d at 846. The court also noted that plaintiffs' "assertion that the City Council creates laws affecting the Fire Department with no statement of how any such action discriminated against the plaintiiffs' was insufficient to state a claim under the applicable civil rights statutes. Id. Not only are such allegations present in the instant case, but the evidence itself convincingly establishes both City involvement in school affairs and intentionally discriminatory conduct affecting both housing and schools. The allegations and evidence in this case thus establish far more than the mere exercise of political influence over the Board which the City contends is insufficient to render it liable for the segregation of Yonkers public schools.
In sum, we conclude that the City of Yonkers is a proper party to the school desegregation portion of this case and may be held liable for the racial segregation of Yonkers public schools. See Arthur v. Nyquist, supra; see also United States v. Board of School Commissioners of Indianapolis, supra. This conclusion is fully consistent with the decisions of the district and circuit courts in Arthur v. Nyquist, with the reasons stated in our discussion of jurisdiction over the claims asserted against the City, see SCHOOLS VI.A.2 supra, and, as noted below, with Supreme Court decisions involving school desegregation.
We thus turn to the second question posed earlier: under what circumstances may a municipal entity be held liable for the segregation of public schools.
As noted above, the Court of Appeals in Arthur v. Nyquist relied solely on the Buffalo Common Council's budget-related conduct in upholding its liability for the segregation of the Buffalo public schools, without discussing or expressly declining to determine the relevance of other forms of municipal activity to the liability determination. This conclusion, however, is only the beginning of our inquiry. While the Court of Appeals relied only on the Common Council's budget-related conduct in holding it liable for the segregation of the Buffalo public schools, we do not read its decision as precluding reliance on other forms of municipal conduct, including but not limited to those discussed by the district court, which also demonstrate an intent to cause or maintain school segregation. Just as a school board can effectuate school segregation through a variety of methods, so too can a city exhibit segregative intent and cause segregation in its schools in a variety of ways. We see little reason to restrict the scope of our inquiry to budgetary matters without also examining whether the City's other actions and omissions involving housing, Board appointments, school site selection, and other involvement in school affairs were characterized by the segregative intent, and achieved the segregative result, proscribed by the Court of Appeals in Arthur.
The relevance of a municipal entity's discriminatory housing policies or practices to school segregation has been explored in another context. In United States v. Board of School Commissioners of Indianapolis, 573 F.2d 400 (7th Cir.), cert. denied, 439 U.S. 824, 99 S. Ct. 93, 58 L. Ed. 2d 116 (1978), the Seventh Circuit held that the discriminatory housing practices of a municipal housing authority could provide a basis for ordering interdistrict relief for school segregation. The court recognized that segregative housing practices are causally related to school segregation, and that Justice Stewart's concurring opinion in Milliken v. Bradley, 418 U.S. 717, 41 L. Ed. 2d 1069, 94 S. Ct. 3112 (1974), and the district court's decision in Evans v. Buchanan, 393 F. Supp. 428 (D.Del.), aff'd mem., 423 U.S. 963, 96 S. Ct. 381, 46 L. Ed. 2d 293 (1975), both supported the imposition of an interdistrict school desegregation remedy where governmental authorities had engaged in segregative public housing practices. The court concluded that the Housing Authority of the City of Indianapolis' policy of confining public housing projects within the boundaries of the Indianapolis Public School District, if found to be discriminatory in intent and segregative in its interdistrict effect, would support the implementation of an interdistrict school desegregation remedy involving the City of Indianapolis and its surrounding suburban school districts. Id. at 408-10. On remand, the district court found that discriminatory intent existed, and as part of its interdistrict remedy, ordered the housing authority to refrain from developing any new low-rent public housing projects within the boundaries of the Indianapolis school district. 456 F. Supp. 183, 192 (S.D.Ind. 1978); 419 F. Supp. 180, 186 (S.D.Ind. 1975). The Seventh Circuit upheld these findings and approved the relevant aspects of the district court's interdistrict remedy. 637 F.2d 1101, 1108-11, 1114, 1117 (7th Cir.), cert. denied, 449 U.S. 838, 101 S. Ct. 114, 66 L. Ed. 2d 45 (1980).
The Indianapolis litigation is obviously not dispositive of the issue before this Court: it deals only with the predicate for imposing interdistrict relief for school segregation and thus neither authorizes nor precludes the imposition of municipal liability and the fashioning of "school-specific" relief
for the segregation of a city's public schools. Nevertheless, the Indianapolis litigation is relevant insofar as it recognizes the causal relationship between a city's housing practices and their impact on the city's schools, and supports the conclusion that city housing authorities can be held legally accountable in a school desegregation suit for discriminatory housing practices which contribute to the segregation of schools. The ordering of purely housing-related relief against the Indianapolis city housing authorities is consistent with the general principle of fashioning a remedy which is commensurate with the nature and extent of the violation; since the city's only involvement in causing or maintaining segregated schools was through its unlawful public housing practices, the remedy ordered consisted only of prohibitions against the continuation of such practices. This issue of remedy, however, does little to undermine the support for the principle of holding a city responsible for the school-related consequences of its segregative public housing practices. In the instant case, where the inquiry is purely intradistrict in scope, the reliance on unlawful municipal housing practices as a basis for assigning legal responsibility for school segregation is certainly no less appropriate than in Indianapolis. We conclude that the Indianapolis litigation and the district court's decision in Arthur both support the relevance of a city's segregative public housing practices in determining whether the city may properly be held liable for the segregation of the city's public schools.
While the Supreme Court has not addressed either the question of whether a city may ever be held liable for segregation in schools or the relevance of a city's housing or other practices to such a determination, we believe that the principles enumerated in Indianapolis and Arthur are consistent with the Supreme Court's school desegregation precedents. In Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court cautioned against using school desegregation cases "to achieve broader purposes lying beyond the jurisdiction of school authorities." 402 U.S. at 22. In Austin Independent School District v. United States, three Justices, concurring in the remand of a school desegregation suit for reconsideration in light of Washington v. Davis, noted in a similar vein that the principal cause of school segregation is racially imbalanced residential patterns and that "discrimination in housing -- whether public or private -- cannot be attributed to school authorities." 429 U.S. at 994. Neither case, however, intimates that a city cannot be held liable where its own intentionally segregative housing practices result in the segregation of schools. In Swann, the Court specifically declined to resolve the issue of "whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by school authorities, is a constitutional violation requiring remedial action by a school desegregation decree," id. at 23, thus leaving open the question not only of school board liability for the intentional discriminatory acts and omissions of others, but also of city liability for school segregation caused by the city's own intentionally discriminatory conduct. And in Austin, the concurring opinion spoke only of the liability of school authorities for the discriminatory housing policies of others; once again, the Court did not address the liability of governmental bodies, city or school, for their own discriminatory conduct. Indeed, if any trend can be discerned from the Court's school desegregation cases, it is that the discrminatory practices of governmental housing authorities may, in certain circumstances, be relevant to a determination of the causes of and remedies for school segregation. See Evans v. Buchanan, 423 U.S. 963, 46 L. Ed. 2d 293, 96 S. Ct. 381 (1975), summarily aff'g 393 F. Supp. 428 (D.Del. 1975); Milliken v. Bradley, supra, 418 U.S. at 755 (Stewart,J., concurring). The Supreme Court's school desegregation cases thus do not at all evince disapproval of, and indeed tend to support, holding municipal authorities liable when such authorities, by their own conduct, have intentionally contributed to the racial segregation of state-created public schools. These decisions also are consistent with the conclusion that a city's housing practices are relevant in making this determination.
We need not decide whether the district court's alternative holding in Arthur -- that a city's discriminatory housing practices alone form an independent basis for a finding of city liability for school segregation -- is a correct statement of the law regarding school segregation.
We believe that the housing-related practices of City authorities, along with the various other methods by which City officials have influenced school district operations and thereby contributed to its racial segregation, are all relevant in determining whether the City's acts and omissions as a whole have resulted in the intentional creation or aggravation of racial segregation in the Yonkers public schools. The Supreme Court's school desegregation decisions have one common guiding principle: where governmental authorities, through various acts and omissions, intentionally create or maintain racially segregated schools, such authorities may be held legally responsible for correcting this condition. In our view, these principles of intentional state action, causation and segregative impact, rather than the artificial fragmentation of responsibility for public schools based on state-created legal subdivisions of governmental authority, are more constitutionally relevant criteria for assessing the liability of city authorities for the segregated condition of the public schools located within their borders. The conduct of the City is no less "state action" than the conduct of the Board. We thus reject the contention that the Board's state-delegated responsibility for the operation of the Yonkers public schools somehow shields other governmental authorities from being held legally accountable when such authorities engage in intentionally segregative conduct with respect to these schools.
In this case, the City's housing practices are an important part of its overall intentionally segregative conduct. The City's confinement of subsidized housing virtually exclusively to Southwest Yonkers not only violated Title VIII and the equal protection clause but also had a clear impact on Yonkers public schools. The persistent and deliberate refusal to develop subsidized housing outside of Southwest Yonkers had clearly segregative consequences not only for residential conditions in the city; in light of the school district's historic neighborhood school policy, the perpetuation and exacerbation of racial imbalance in the school district was a natural, probable and actually foreseen consequence of the City's discriminatory housing practices as well. See Columbus Board of Education v. Penick, supra, 443 U.S. at 464-65. Indeed, the unavoidable realization that opposition to a more geographically dispersed distribution of subsidized housing was related in part to the impact of such a housing policy on the community's schools, together with the City's own attempts to alter school attendance zone boundaries in a segregative manner, support our conclusion that the City's segregative intent was not limited to residential patterns in Yonkers. Just as a school board's alteration of attendance zone boundaries in a segregative manner may support a finding of intentional segregation of schools, see id. at 462; Reed v. Rhodes, supra, 607 F.2d at 734; NAACP v. Lansing Board of Education, supra, 559 F.2d at 1049-51, similar proposals by City officials, especially when clearly based on racial considerations, also are probative of segregative intent. We recognize that the Board had sole legal authority to implement student reassignments or educational programs designed to reduce the racial segregation of the public schools and thus ameliorate the segregative impact of the City's housing practices. Yet the Board's failure to do so, as well as its other segregative acts and omissions, do not properly relieve the City from legal responsibility for the fact that its own discriminatory housing practices contributed substantially to the systemwide perpetuation and exacerbation of racial segregation in both housing and schools. Cf. Arthur v. Nyquist, supra, 415 F. Supp. at 969. The City's housing practices provide a strong basis for holding the City legally responsible for the racial segregation of the Yonkers public schools.
Although the geographic proximity of the Riverview project and School 10 provides a visually unambiguous example of the interrelationship between housing and schools, the basis for the City's liability for the segregation of School 10 and surrounding schools is no different than the basis for its liability for school segregation systemwide. Unlike the Board's opening of School 10, one of only two elementary schools opened by the Board since 1965, Riverview represented for the City one segment of a consistent and longstanding pattern of segregative subsidized housing development in Yonkers. And unlike the intent of the Board, for which the planning of School 10 represented part of a series of initial efforts to remedy racial imbalance in Southwest Yonkers schools, the City's development of Riverview, along with other subsidized housing projects planned contemporaneously with it, represented the most concentrated portion of a pattern of subsidized housing development which was motivated at least in part by an intent to exclude minorities from East and Northwest Yonkers. Thus, regardless of whether some City officials may have at one time shared the Board's optimistic expectation that School 10 itself would be racially integrated, the City's conduct with respect to Riverview and School 10 can be viewed properly only as part of prior, contemporaneous, and subsequent housing practices which intentionally preserved racial segregation throughout the City as a whole.
The mayoral appointment of Board members is also relevant evidence of overall municipal intent to maintain the racial segregation of Yonkers public schools. The relevance of such conduct was implicitly acknowledged in Arthur, in which the district court examined a mayoral appointment to the Buffalo Board of Education but concluded that the appointment of a single opponent of busing was insufficient evidence of discriminatory intent. Arthur v. Nyquist, supra, 415 F. Supp. at 959; cf. United States v. City of Birmingham, 538 F. Supp. 819, 826 (E.D.Mich. 1982) (recall of City Commissioners who supported proposed integrated low-income housing project and appointment of replacements by City Commissioners who opposed project constitutes evidence of city's discriminatory intent in interfering with development of housing project), aff'd, 727 F.2d 560, 564-65 (6th Cir.), cert. denied, 469 U.S. 821, 105 S. Ct. 95, 83 L. Ed. 2d 41 (1984). As noted previously, we find that the mayoral pattern of Board appointments -- the failure to reappoint Board members known for their commitment to school desegregation, the appointment and reappointment of individuals in a manner consistent with the Mayor's commitment to neighborhood schools, and the resulting perpetuation of the racial segregation which the City itself had deliberately contributed to and maintained -- is sufficient in the circumstances of this case to support a finding of segregative intent with a resulting systemwide segregative impact on Yonkers public schools.
The independent legal status of the City and Board and the limited nature of the mayoral statutory appointment power does not, in our view, preclude a finding of municipal liability for school segregation based in part on mayoral appointments to the board. While a city's legal responsibility for the perpetuation of segregated schools cannot appropriately rest simply upon the imposition of vicarious liability for the independent acts and omissions of school officials who are responsible for and capable of changing this condition, to view the conduct of the Yonkers Board of Education independently of the circumstances and manner in which its members were selected would be to artificially separate city powers, policies and practices from educational affairs in a manner wholly inconsistent with the reality of public education in Yonkers. Although state law expressly provides for mayoral appointments and budgetary control, as well as the "independent" status of the Board, it in no way contemplates the deliberate perpetuation of racial segregation in housing and schools by those officials charged with the responsibility for administering these respective areas of activity. Of course, continued attempts to dominate or control Board members subsequent to their appointments might constitute additional persuasive evidence of improper motive. The absence of evidence of such occurrences in this case, however, does not diminish the relevance of the City's more subtle, yet significant, segregative influence over educational affairs. Indeed, a contrary rule would permit a municipality bent on perpetuating racial segregation to achieve immunity from federal remedial measures merely by allocating responsibilities to separate governmental agencies which nevertheless act for similar purposes. The combination of the City's segregative housing practices and mayoral appointments together have served to perpetuate racial segregation in Yonkers public schools and constitute sufficient grounds for a finding of municipal liability.
We are cognizant that this area of municipal activity, more so than any other, involves an inquiry into politically-related affairs and activities which does not easily lend itself to review by the federal judiciary. In Mayor v. Educational Equality League, 415 U.S. 605, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974), the Supreme Court cautioned against judicial interference in the discretionary appointment processes of local elected officials. In Mayor, plaintiffs alleged that the Mayor of Philadelphia's predominantly white appointments to a school board nominating panel constituted a violation of the equal protection clause. Plaintiffs sought an injunction barring the most recently selected panel from submitting nominees for board membership to the Mayor, and an order directing the Mayor to appoint a panel "fairly representative of the racial composition of the school community." Id. at 609. The Supreme Court dismissed the claim, holding that plaintiffs' proof of racial discrimination was not sufficiently reliable. According to the Court, an ambiguous statement by the Mayor about the racial composition of the 1969 board (rather than the 1971 panel), a Deputy Mayor's unawareness of certain black organizations in the city, and racial composition percentage comparisons which were considered meaningless based on the small size of the sample and the inappropriateness of using the population at large in making the comparisons, constituted evidence which was "too fragmentary and speculative" to support a claim of racial discrimination. Id. at 621. The Court also expressed its concern that "judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency" and that such oversight raised "delicate issues of federal-state relationships...made particularly complex by the interplay of the Equal Protection Clause of the Fourteenth Amendment, with its special regard for the status of the rights of minority groups and for the role of the Federal Government in protecting those rights." Id. at 615; see also James v. Wallace, 533 F.2d 963 (5th Cir. 1976) (rejecting claim of discriminatory appointments by Governor of Alabama to state boards and commissions based on inadequacy of statistical evidence and discretionary nature of appointments). Because of the absence of reliable proof of racial discrimination, the Court did not resolve these constitutional concerns. 415 U.S. at 616.
While a constitutional challenge directed solely at the mayoral appointment process would present problems similar to those raised in Mayor and James, the instant case does not rest on such grounds. We do not find that the evidence of mayoral Board appointments itself establishes a constitutional violation requiring remedial relief in the form of new appointments or changes in appointment procedures. This is not a case in which this Court is effectively asked to order the Mayor "to exercise his discretion in a particular way." 415 U.S. at 615 (quoting Carter v. Jury Commission of Greene County, 396 U.S. 320, 24 L. Ed. 2d 549, 90 S. Ct. 518 (1970) (challenging state governor's alleged discriminatory exclusion of blacks in discretionary appointments to county jury commission)). Rather, the evidence concerning mayoral appointments to the Board is relevant and significant in this case insofar as it provides circumstantial evidence of a pattern of decisionmaking consistent with other municipal acts and omissions designed in part to perpetuate the segregated condition of housing and schools in Yonkers. To the extent that this segregation was caused in part by housing practices influenced by racially motivated community opposition to nondiscriminatory policies of subsidized housing site selection and construction, the Mayor's responsibility for responding to the concerns of this same community cannot reasonably preclude judicial examination of mayoral appointments to the school board. Moreover, the evidentiary pitfalls inherent in drawing conclusions about the racial composition of governmental boards or commissions from statistically limited and inappropriate numerical evidence of disproportionate racial impact are not present here, where the extensive testimony of witnesses, the contemporaneous statements, perceptions and impressions of city and school officials and community members, and the more recent actions of the Board which have been consistent both with the Mayor's efforts to exercise greater control over school affairs and with the City's segregative housing practices, all provide a more than adequate supply of relevant information from which conclusions regarding intent and impact may be drawn.
The task of examining the motivations or reasons underlying the conduct of state and local government authorities is an admittedly delicate one, particularly where the decisionmaking process involves the exercise of discretion by locally elected officials. Yet the sensitive and elusive nature of this inquiry is inherent in the multitude of school desegregation cases which federal courts have been called upon to decide over the past decade. To ignore the circumstances surrounding the mayoral appointments to the Board in this case would be to immunize from review a single but significant aspect of official decisionmaking which has collectively resulted not simply in a disproportionately low representation of minority ethnic groups on a particular governmental body, but in the city-wide racial segregation of public housing and public schools. Where discretionary mayoral appointments are neither examined in isolation nor challenged as impermissible in and of themselves, but are one aspect of an overall pattern of consistently segregative conduct occurring over several decades, the arguments for federal judicial noninterference in determining the causes and consequences of this exercise of official decisionmaking power become increasingly untenable. We conclude that an examination of the manner in which Board appointments were made in Yonkers is appropriate under the circumstances described above and that such appointments, along with other segregative practices of the City and other evidence of involvement in educational affairs, constitute a sufficient basis for holding the City legally responsible for the racial segregation of Yonkers public schools.
Not all of the City's school-related conduct was segregative in its ultimate impact. Indeed, the legal relationships which gave the City its most direct control over school affairs were generally not accompanied by racially segregative consequences to Yonkers public schools. The City's involvement in the site selection for Yonkers High School and Saunders Trades and Technical High School, while illustrative of the City's somewhat successful efforts to influence school district decisionmaking, eventually resulted in the selection of sites which were preferred by the Board and were not racially segregative. Similarly, the City Council's budgetary power vested the City with considerable control over educational matters; this control, however, was not actually exercised in a manner which resulted in the perpetuation of racial segregation in Yonkers public schools. Cf. Arthur v. Nyquist, supra, 573 F.2d at 145. Nevertheless, the City's acts and omissions need not have been uniformly segregative in order to establish its liability for the segregation for which some of its conduct is responsible. See Arthur v. Nyquist, supra, 415 F. Supp. at 913. Whether direct or indirect, the City's housing practices, the mayoral appointment of Board members, and other City involvement in school affairs are more than adequate evidence of the City's intentional perpetuation and exacerbation of racial segregation in Yonkers public schools. We therefore hold that the City is liable for the racial segregation of Yonkers public schools.
Having found the defendants liable, it is appropriate that the remedy phase of these proceedings be addressed.
The Court will hold a scheduling conference on December 18, 1985 at 9:45 A.M.
CITY OF YONKERS
SUBSIDIZED HOUSING SITES
APPELDIX A - CONT'D
Project Type Units Approved Opened
1. Mulford Gardens Family 550 1938 1940
(Emmett Burke Gardens)
2. Cottage Place Gardens Family 250 1942 1949
3. Schlobohm Houses Family 413 1950 1953
4. Sunset Green Family 70 1957 1960
5. Sunnyside Manor Family 121 1957 1964
6. Loehr Court Senior 108 1958 1962
7. Hall Court Family 48 1958 1962
8. Calgano Homes Family 278 1958 1964
9. Walsh Houses Senior 300 1961 1967
10. Phillipse Towers Family 544 1962 1964
11. Kristensen Houses Senior 32 1963 1967
12. Curran Court Senior 186 1963 1967
13. Jefferson Terrace Family 64 1968 1971
14. Highland Terrace Family 96 1968 1969
15. Messiah Baptist Family 130 1970 1972
16. Flynn Manor Senior 140 1970 1971
17. 10 Orchard St. Family 8 1970 1971
18. Riverview I Family 454 1970 1975
19. Riverview II Family 343 1970 1975
20. Frazier Homes Family 21 1970 1973
21. The Dorado Family 188 1970 1973
22. Whitney Young Manor Family 195 1970 1974
23. Waverly Arms Family 28 1970 1972
24. Fr. Finian Senior 150 1970 1975
Sullivan Towers Citizen
25. 164-170 Buena Vista Ave. Family 12 1971 1971
26. Seven Pines Family 300 1971 1974
27. Cromwell Towers Family 317 1971 1974
28. Jackson Terrace Family 181 1971 1973
29. Parkledge Family 310 1972 1975
30. Lane Hill Apts. Senior 109 1976 1980
31. Margaret Hughes Housing Senior 101 1977 1980
32. 28 Lamartine Terr. Mixed 82 1977 1979
33. 557 So. Broadway Mixed 14 1977 1979
34. St. Casimir's Senior 264 1978 1980
35. 182 N. Broadway Family 62 1979 1981
36. Kubasek-Trinity Manor Senior 130 1979 1981
37. Monastery Manor Senior 1979 1982
38. Post Street Apts. Family 55 1980 1981
Source : GX 1225.52; 1099.9; 1099.11; C-1700.
Engineering Department figures are derived from the Board of Education's 1981 "Annual School Profiles" (GX 81) and the administration's 1977 Phase II plan (GX 98). These figures are based on the square footage of space available. GX 71; GX 98, at 14.
New York Univerity University Report figures are derived from a 1972 New York University School of Education report containing various school reorganization proposals for the Yonkers public schools. Except as otherwise noted below, elementary school capacity is based on a "realistic operating capacity" of 90% of a school's theoretical student capacity; middle school capacity is based on a "realistic operating capacity" of 80% of a school's theoretical student capacity, and high school capacity is based on a "realistic operating capacity" of 80-85% of a school's theoretical student capacity.
The 1976 School Closing Plan and 1977 Phase II figures are derived from two school reorganization plans developed by Superintendent Joseph Robitaille and his staff. Elementary school capacity figures were derived by multiplying the number of available classrooms by a 28-student-per-classroom average, with allowance being made for special classroom uses in a particular school, e.g., Special Education instruction, funded educational program laboratories, and pre-K programs. GX 126. Secondary school capacity figures are based on a variety of program-related factors. GX 98, at 13. Differences between 1976 School Closing Plan and Phase II capacity figures (apparently attributable to changes in space utilization, e.g., for special programs) are noted where applicable.
Engineering NYU 1977 Phase II
Department Report (1976 School Closing)
Elementary Schools (1977, 1981) (1972) Plans
1 (closed 1954) 24*2 - -
2 (converted 1945) - - -
3 (closed 1976) - 661 672
4 (closed 1976) - 500 504
5 - 750 743 672
6 - 460 497 420
7 (closed 1976) - 661 560
8 - 550 581 560
9 - 604 605 560
10 - 725 - 532 (504)
11 (Twain) 650 639 644 (728)
12 (closed 1976) - 520 476
13 - 900 887 756 (859)
14 - 553 580 588 (616)
15 (closed 1976) - 320 448
16 - 475 473 448
17 - 425 394 476 (448)
18 - 900 875 868 (840)
19 - 650 635 672
20 (converted 1938) - - -
21 - 475 529 532
22 - 450 450 504
23 - 850 634 756 (840)
24 (closed 1976) - 371 420
25 - 650 659 532
26 - 655 527 616
27 - 525 558 560 (504)
28 - 490 450 560
29 - 550 504 560 (588)
30 - 500 580 560
31 - 450 423 448
32 - 675 477 644 (672)
King 750 - 644
34 (Emerson) 375 - 448 (588)