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UNITED STATES v. YONKERS BD. OF EDUC.

November 20, 1985

UNITED STATES OF AMERICA, Plaintiff, and YONKERS BRANCH-NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs-Intervenors,
v.
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. *fn151" 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 ...


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