UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
November 20, 1985
UNITED STATES OF AMERICA, Plaintiff,
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 2 of 3)
The opinion of the court was delivered by: SAND
IV. THE BOARD OF EDUCATION
A. School Openings, Closings, and Attendance Zone Changes
The Yonkers school district has witnessed a substantial number of school openings, school closings, and attendance zone changes during the past forty years. While each of these decisions raises its own particular issues and has had a separate racial impact, they are all similar in their more geographically limited, rather than systemwide, effect. In general, the Board's practices in these areas can be examined individually to determine the existence of segregative impact and segregative intent. Nevertheless, decisions regarding the opening or closing of a particular school have generally been accompanied by related adjustments in attendance zones or student assignments. Our discussion of Board practices will reflect this interconnection.
A summary of school openings, closings, and attendance zone changes is set forth below.
School Quadrant Opening Date Closing Date Attendance Zone Changes
1 NW 1872 1954 -
2 SW 1891 1945a -
3 SW 1884 1976 1965, 1972, 1975
4 SE 1885 1976 1963, 1965
5 Central 1884 - 1954, 1963, 1976
6 SW 1889 - 1953, 1966, 1973
7 SW 1887 1976 1963
8 NE 1892 - 1951, 1952, 1954, 1973
9 SW 1894 - 1963, 1965, 1970, 1976
10 SW 1972 -
11b SE 1898 - 1965, 1976
12 SW 1898 1976 1953, 1963, 1973
13 SW 1901 - 1973, 1976
14 SE 1902 - 1952, 1976
15 NE 1902 1976 1951
16 NW 1902 - 1953, 1963, 1964,
1968, 1970, 1976,
17 SE 1903 - 1952, 1963, 1973, 1976
18 SW 1904 - 1973, 1976
19 SW 1906 - 1965, 1972, 1975, 1976
20 SW 1907 1930c -
21 SE 1914 - 1963, 1976
22 NW 1914 - 1963
23 SW 1918 - 1973, 1976
24 NW 1930 1976 1954, 1963
25 NW 1930 - 1953, 1963, 1964, 1968,
26 NE 1936 - 1976
27 SW 1930 - 1976
28 NE 1951 - 1976
29 NE 1951 - 1958
30 SE 1952 - 1963, 1973
31 NE 1953 1982d 1976
32 NE 1958 - -
King SW 1969 - 1973, 1976
34e NW 1963 -
MIDDLE AND JUNIOR HIGH SCHOOLS
School Quadrant Opening Date Closing Date Attendance Zone Changes
Burroughs Central 1969 1978f 1973, 1976
Commerce SW 1930g 1976 -
Emerson NW 1963 - 1973, 1976, 1978
Franklin/ SW 1926, 1945 - 1954, 1958, 1963, 1973,
Fermi 1974i 1976
Gorton NW 1954 1973 1963, 1969
Hawthorne SW 1925 - 1958, 1963, 1969, 1973,
Lincoln SE 1953 1972 1963, 1969
Longfellow SW 1930j - 1954, 1963, 1969, 1973,
Roosevelt NE 1954 1959 -
Twain SE 1925, 1971 - 1953, 1963, 1973
Whitman NE 1959 - 1963, 1969, 1978
School Quadrant Opening Date Closing Date Attendance Zone Changes
Commerce SW 1930nj 1974 -
Gorton NW 1923 - 1963, 1973
Lincoln SE 1957 - 1963, 1973
Roosevelt NE 1926 - 1963, 1973
Saunders SW 1911, 1980 - -
Yonkers SW 1927, 1945,
1974i - 1957, 1963, 1973
As the above tables indicate, prior to 1940 the school district had constructed twenty-five elementary and seven secondary schools. In 1940, the City's minority population was 3.3%, with most minority students residing in the School 1, 6, and 18 attendance zone areas. In addition, subsidized housing had just begun to be developed in Southwest Yonkers; the concentration of minorities in that area was the result of pre-existing demographic patterns. Beginning in 1950, after a fourteen-year hiatus in school construction, the district opened a number of new elementary and secondary schools primarily in response to the continued increase in population density in the northeastern portion of Yonkers. SB 848. This school construction was also consistent with a 1934 Columbia University study of the Yonkers School District which predicted increased population growth in East Yonkers and recommended that school construction plans be formulated accordingly. SB 10, at 210, 242-43, 248, 256. Elementary Schools 28, 29, 31 and 32 were built between 1950 and 1957 in Northeast Yonkers, an area which experienced a 64% increase in population density during this time. GX 40, at 20. Similar school construction occurred on the secondary school level as well: Lincoln and Whitman Middle Schools were opened to serve the Northeast and Southeast Yonkers communities, and Emerson Elementary/Junior High School was opened in 1963 in response to similar population increases in Northwest Yonkers. In 1954, Gorton and Roosevelt High Schools expanded to include middle school students, and in 1957 Lincoln Middle School began to enroll high school students previously attending Yonkers High School.
By 1963, the school district had constructed and opened the vast majority of its public schools. By this time, the concentration of minorities in Southwest Yonkers had increased, including significantly minority populations in the attendance zones for School 7 (23% minority in 1961), 18 (23% minority) and 19 (32% minority). Cf. GX 56 (10% elementary school districtwide average in 1961). While privately-induced segregated housing patterns had continued during this time, the City's segregative involvement in the site selection and construction of subsidized housing was not at the open and notorious level of later years, nor is there evidence establishing a direct relationship at that time between the Board's and City's activities. In short, the record suggests that the Board's school construction decisions prior to the mid-1960's were neither intentionally segregative viewing them in isolation, nor a deliberate incorporation or enhancement of publicly or privately created residential segregation in the city.
As a result of the district's construction of new school facilities, the attendance zone boundaries for existing schools began to shrink. On the elememtary school level, attendance zones for Northeast and Central East Yonkers elementary schools became smaller as five new elementary schools were opened. The 1963 opening of Emerson Elementary School caused a similar contraction of the neighboring School 16 zone. On the middle school level, this phenomenon did not arise until the 1960's, when the opening of Emerson and Burroughs Junior High Schools in 1963 and 1969, respectively, resulted in the contraction of the disproportionately minority Gorton and Longfellow zones as well as smaller reductions of the Franklin, Lincoln and Whitman zones. The 1957 opening of Lincoln High School halved the attendance zone for the disproportionately minority Yonkers High School in Southwest Yonkers, which rose from an estimated 14% to an estimated 22% minority enrollment.
The effects of this gradual contraction of school zones was accompanied by the first signs of community isolationism or separation with respect to the public schools. As the Northeast Yonkers community population expanded in the 1950's, residents bordering on the relatively well-to-do Scarsdale and Bronxville communities became identified with these non-Yonkers communities, while the Southwest Yonkers minority population slowly but steadily began to grow. The "sectional preoccupation" with respect to schools, recognized in a 1957 New York State Education Department survey of the Yonkers school system, GX 40, at 23, was consistent with community opposition to the development of subsidized housing in the East Yonkers area. See HOUSING III.E supra.
The period between 1950 and 1965 was also marked by a number of physical additions to existing school facilities. GX 644. On the elementary school level, the most significant of these additions, most of which were made to provide additional classroom space, were expansions of Schools 13 and 27 in Southwest Yonkers, and Schools 28, 29, 30, 31 and 32 in Northeast and Central East Yonkers. School 13, originally a twelve-classroom facility, added eleven classrooms in 1967 and an additional ten rooms in 1969, at a time when its minority enrollment was 5%. In 1960, School 27, at the time an approximately 2% minority school, added fifteen classrooms to its previous four-room capacity. GX 56. Additions to East Yonkers schools occurred primarily between 1955 and 1965, a pattern consistent with the population influx of those years. SB 849. On the secondary school level, the most significant additions were an expansion of Hawthorne Middle School, which encompassed the School 13 and 27 attendance zones, and Roosevelt High School, which included the School 29, 31 and 32 zones and part of the School 30 zone.
Since the mid-1960's up to the filing of this action, the district has constructed, or otherwise opened in existing facilities, six schools: School 10 and King Elementary Schools, Burroughs, Commerce and the new Twain Junior High Schools, and the new Yonkers High School. The district has also closed nine schools: six elementary schools (3,4,7,12,15,24), two middle schools (Burroughs, Commerce), and one vocational high school (Commerce). (This excludes the closing of four school facilities -- Franklin and Gorton Junior High Schools, Yonkers High School, and Saunders Trades and Tecnhical High School -- and relocation of their student bodies to other facilities bearing the same or new name.)
We note at the outset that since 1970, the Board's school openings and closings have been primarily segregative in effect. The district's two newest elementary schools both opened as racially identifiable, predominantly minority facilities -- School 10 (73%) and King (57%). The two newest secondary schools also opened as predominantly or disproportionately minority schools -- Commerce Middle School (53%) and the new Yonkers High School (34% in 1973 (versus 16% districtwide high school average), increasing to 57% by 1975). Of the nine schools closed since 1970, three of them were among the district's most racially balanced schools --the High School of Commerce (19%), School 24 (19%), and Burroughs Middle School (19%).
Two closings -- Schools 4 and 15 --simply resulted in the transfer of virtually all-white student bodies to virtually all-white schools. Only the School 12 and Commerce Middle School closings constituted attempts to eliminate heavily racially isolated minority schools, and only the Commerce closing resulted in significantly desegregative student reassignments to predominantly white schools.
The Board has redrawn attendance zone boundaries many times during the course of the past fifty years. These changes, which have generally been formulated initially by the district's administrative staff and then approved by the Board, have been implemented for a wide variety of reasons. Several of these changes have had little or no racial implications either in their effect of their intent and thus will not be discussed further in our findings. Others have been made as part of more significant school reorganization decisions, such as school openings or closings. Only in a few instances has a series of attendance zone changes occurred which were unrelated to any school opening or closing decision -- changes involving Schools 16 and 25 in Northwest Yonkers, and changes, involving Schools 6, 9 and 12 in Southwest Yonkers. Nevertheless, in order to properly evaluate the school opening, closing and related attendance zone changes which have occurred, some introductory remarks are in order.
Both plaintiffs and the Board have submitted maps reflecting attendance zone boundaries for Yonkers public schools. GX 1,3,5,7,9,11,13,15,17,19,21,23,25,27,29,31,33,35,37; SB 626-628. These maps reflect attendance zones for the elementary and middle school levels since 1938, and high school attendance zones since 1954, the years in which these attendance zones were formally established.
Attendance zone boundaries were first established prior to the presence of significant numbers of minorities in Yonkers. As the minority population of Southwest Yonkers and the white population of East Yonkers have grown, attendance zones have been altered to reflect these demographic changes. In general, students are assigned to the school in the geographic attendance zone or district in which they live. This "neighborhood school policy" applies for elementary, middle and academic high school students; it has not and does not apply for the district's vocational-technical schools, which have enrolled students from throughout the city and have had no attendance zone boundaries. Although adherence to this policy has generally been consistent on the elementary school level, with minor variations between contiguous school zones in the same geographic quadrant of Yonkers, the testimony of Board members and other school officials reflects that the neighborhood school assignment policy is considerably more flexible on the middle school and high school level. Fareri Dep. 208; Hicks Dep. 195-97; Lester Dep. 79; Weiner Dep. 144, 282; Tr. 11,582 (Guerney).
Since the 1930's, the Yonkers School District has not generally provided subsidized transportation for students between home and school. The district does provide such transportation, in the form of contracted van or bus service or public transportation subsidies, for Special Education students (for whom transportation must be provided under state law; see N.Y. Educ. Law § 2554(18) (McKinney 1981))
and for students attending special enrichment programs at schools outside their home attendance zone. GX 877. In addition, a number of students travel to school by using either public bus transportation or by obtaining privately-contracted bus transportation services. Most of these students are of either junior high or senior high school age: students attending Twain, Whitman and Emerson Middle Schools and all of the city's high schools have at various times used bus transportation to attend school. Similar transportation exists at the elementary school level for a small number of the district's twenty-five elementary schools; specifically, Schools 26, 31 and 32 in Northeast Yonkers, and School 22 in Northwest Yonkers. Gold-Marks Dep. 18; Tr. 5330-31 (Frauenfelder); Tr. 11,241 (Guerney). Prior to the filing of this lawsuit, the Yonkers PTA was responsible for obtaining and coordinating the use of privately-contracted bus transportation. Tr. 5328-29 (Frauenfelder).
There are several exceptions to the district's general attendance zone student assignment policy. First, Special Education students have, to varying degrees throughout the school district's history, been assigned to schools outside the district in which these students reside. See SCHOOLS IV.D infra. Second, the Board at various times has created options for students to attend a choice of particular schools. The most notable options have been (1) an option created in 1978 for former Burroughs Middle School students living in the old School 24 zone to attend either Whitman or Emerson Middle School; see SCHOOLS IV.F.3 infra ; (2) a policy allowing Japanese-American students living in the School 25 zone to attend School 16; see SCHOOLS IV.A.4.a infra ; and (3) a policy of allowing students to attend School 10 out-of-district and allowing students living in the School 10 zone to attend School 19; Tr. 13,013-14 (Dodson); Frank Dep. 279-80.
Third, students may apply on an individual basis for an out-of-district transfer from their assigned school zone to a school in another area of the district. Since 1971, the district has employed written guidelines which school officials use to determine whether such transfers should be granted. Transfer requests are evaluated on a case-by-case basis and are generally granted for educational, psychological, physical or medical reasons, or based on "extenuating circumstances." In addition, transfers are routinely granted to any student who moves out of a school attendance zone prior to the student's last year in the school; thus, sixth, ninth and twelfth graders are permitted to stay in the school of their former residence for their last year in the school.
The out-of-district transfer process is flexible enough to allow for transfers not falling within any particular category, and has in one of two instances either been applied in a manner which would appear to exceed even the broad categories noted above, or has simply been circumvented. Batista Dep. 61-62 (transfer of Councilmember's child from Gorton to Roosevelt); Hicks Dep. 20-27 (transfer of black Board member's child from predominatly minority school to integrated, educationally superior school). On the record before us, however, these instances appear to constitute segregative aberrations rather than indicia of any consistent or well-established pattern of improper, racially segregative student transfers. Cf. Arthur v. Nyquist, supra, 415 F. Supp. at 936-39 (transfer policy allowed 2,000-4,000 white students to attend out-of-district schools, many involving transfers from predominantly black to predominantly white schools); Berry v. Benton Harbor, supra, 442 F. Supp. at 1312-13.
The Board's effort to demonstrate the absence of a pattern of segregative school openings, closings and attendance zone boundary changes consisted of the testimony and mathematical analysis of Dr. David Armor. Dr. Armor, a sociologist with expertise in statistical analysis, prepared a change-by-change analysis of each school boundary change beginning in 1951 for elementary schools, 1953 for middle schools, and 1957 for high schools. See SB 810.6-810.8.
For years prior to 1967-68, the school year in which school enrollment data by race first became available, Dr. Armor essentially reconstructed school racial enrollments by analyzing census tract data at the census block level.
Using this data, he estimated the school age population within particular census blocks and then aggregated the number of school-age whites and minorities living in the census blocks comprising particular attendance zones. For these years, Dr. Armor analyzed the numerical and racial impact of school boundary changes by comparing the estimated racial enrollments of the affected schools the year before the change with the anticipated enrollment after the change, a number derived by adding or subtracting the estimated number of students who were rezoned.
For years beginning with 1967-68, Dr. Armor analyzed the boundary changes in two ways: first, by comparing the actual racial enrollment data of the affected schools in the year before the change with the expected school enrollment after the change, a number derived by adding or subtracting the estimated number of students rezoned. Dr. Armor also analyzed those post-1967 changes by comparing pre-change actual school enrollment to the actual school enrollment in the year subsequent to the change. The difference between the post-change expected enrollment and post-change actual enrollment consists of demographic changes occurring during the year of the boundary change, i.e., shifts in the affected school zone's school age population, and differing birth rates among incoming and graduating classes at a particular school.
Dr. Armor analyzed the segregative or desegregative effect of school attendance zone boundary changes by using two mathematical indices. One, the dissimilarity ("D") index, measured the extent to which the affected schools in any given boundary change were rendered either more or less racially imbalanced relative to each other. The second, the exposure ("E") index, measured the extent to which the students attending the schools affected by a particular boundary change experienced more or less interracial contact, that is, exposure to members of another race, as a result of the change. While the manner in which these indices were actually calculated is somewhat more intricate than our brief description suggests, the basic concept can be illustrated by an example.
Assume for simplicity a school district with two elementary schools, School A, a 0% minority school with 100 students, and School B, a 50% minority school with fifty whites and fifty minorities. If the attendance zone boundary between these two schools were redrawn in such a manner that ten white students from School A were rezoned into School B's attendance zone, while ten minority students from School B were rezoned into School A's attendance zone, thus resulting in School A having 10% minorities and School B having 40% minorities, this boundary change would be desegregative under Dr. Armor's analysis: The D index would decrease, i.e., show a desegregative effect, since Schools A and B would now be more racially balanced relative to each other (10% and 40% minority) than they were before the change (0% and 50% minority); the E index would also decrease since the minorities originally in School B would now be in contact with a greater number of the available white students attending the schools in question.
Using the D and E indices, Dr. Armor concluded that of the thirty elementary school boundary changes, four were significantly
segregative, ten were significantly desegregative, and fifteen had no significant effect one way or the other (the opening of School 10 in 1972 was found to have had a mixed effect according to the D index: the expected change was segregative, but the actual effect was desegregative). On the secondary school level, Dr. Armor concluded that of the nineteen middle school boundary changes, three were significantly segregative, four were significantly desegregative, and eleven had no significant effect in either direction (the opening of Commerce Middle School in 1973 was found to have had a mixed effect similar to the School 10 opening). As for the five high school boundary changes, Dr. Armor's analysis found that one was significantly segregative and four had no significant effect.
The difficulty which we have with Dr. Armor's analysis is not that it tells us too much, but that it fails to take into account a number of considerations which we consider relevant, indeed critical, to our analysis of both segregative effect and intent. The analysis, by limiting its scope to the specific schools directly involved in a particular boundary change, fails to consider the impact of particular changes on neighboring schools or on the districtwide racial balance. Whether or not the Board had any obligation to make boundary changes in a manner which increased districtwide racial balance, it is inaccurate and misleading to view boundary changes in isolation without consideration of the historical events preceding and reasons prompting a particular change; see SCHOOLS IV.A.3.a infra (School 1); the feasibility and relative desegrative effect of alternatives to the boundary changes actually made;
see SCHOOLS IV.F.2 infra (Commerce); SCHOOLS IV.A.3.c infra (Longfellow); the community's and school officials' perception of a particular change which, though mathematically desegregative with respect to the particular schools involved, further delineates a particular school, neighborhood or area of the city as identifiably white or minority; see SCHOOLS IV.A.2.b infra (School 10); SCHOOLS VI.F.2 infra (Commerce); and the effect of these perceptions on subsequent demographic patterns affecting both housing choices and school attendance decisions. The ability of a school board to both foresee and affirmatively alter the development of school racial enrollment patterns beyond the limited scope of any particular change renders a purely intraschool analysis of racial imbalance a somewhat unrealistic appraisal of the actual effects of boundary changes on the racial balance and identifiability of schools both directly and indirectly affected by a boundary change. A more searching inquiry into the Board's attendance zone changes is thus necessary in order to evaluate plaintiffs' claim that such changes were intentionally segregative.
We now turn to an analysis of specific school openings, closings and boundary changes in order to determine whether these actions may be characterized in whole or in part as intentionally segregative acts which furthered the segregation and racial identifiability of the Yonkers public schools.
2. School Openings
As we have already noted, the district has opened six schools over the fifteen years preceding the filing of this action. Three of these school openings and related attendance zone changes, involving two elementary schools (School 10 and King) and one middle school (Commerce) merit further discussion, for plaintiffs claim that these openings and related attendance zone changes represent intentionally segregative decisions by the Board and, with respect to School 10, the City, which further identified Southwest Yonkers schools as predominantly minority facilities.
a. Martin Luther King, Jr. Elementary School
King Elementary School is a virtually all-black school located several blocks north of Getty Square in Southwest Yonkers. Although King has operated as a virtually all-black school throughout the mid to late 1970's, the opening of King was designed as one of the first intentionally integrative efforts of the Yonkers School District. Several factors are relevant in examining the reasons for the Board's unsuccessful efforts to effectuate school desegregation at King and its surrounding schools: the circumstances underlying the planning and construction of an additional school in the Southwest Yonkers area, the site selected for the school, the circumstances surrounding the naming of the school, the drawing and re-drawing of King's attendance zone boundaries, alterations in the school's grade organization, and the interrelationship of these events with the conditions in surrounding elementary schools.
The construction of King was originally based on the need to accommodate the increasing student enrollment at Schools 6 (78% minority in 1967-68) and School 12 (64% minority in 1967-68), two of the district's most racially imbalanced and overcrowded elementary schools. In order to properly understand the reasons for the segregated nature of Schools 6 and 12 and the need for an additional school in that area of the city, some background is in order.
The racial identifiability of School 6 has existed for virtually as long as the district's elementary school boundaries have been in existence. School 6 is located in an area of historically heavy minority concentration in Southwest Yonkers; its attendance zone embraces the Cottage Place Gardens housing project, whose estimated minority student population during the 1950's and 1960's was equal to or greater than School 6's minority enrollment. Tr. 11,883-84, 11,890 (Armor). By 1953, School 6 had an estimated minority enrollment of 29%, the second highest minority enrollment in the district. School 25, located directly north of School 6 along Warburton Avenue, was a comparatively whiter school, with an estimated 4% minority enrollment in 1953.
In 1948 and 1953, two changes were made to the attendance zone boundary between these two schools. In each instance, areas which had a lesser percentage of minority students than the School 6 zone as a whole were rezoned from School 6 to School 25. Although student enrollment data is not available for the 1948 change, School 6 had greater classroom capacity at the time. GX 644. By 1953, each school had added additional classroom space; prior to the 1953 boundary change, School 6, with eighteen classrooms, had an estimated 477 students, and School 25, with fifteen classrooms, had an estimated 409 students, and was thus at least equal to School 6 in its percentage capacity enrollment.
The first boundary change was prompted by the district's previous exclusion of the children of two black families living near the School 6/25 border, at the same time that whites living in the School 6 zone, further south from School 25 than these black families, were permitted to attend School 25. Tr. 459-63, 502-12 (Smith). In response to complaints from black parents regarding the above student assignments, the district redrew the attendance zone boundary line dividing Schools 6 and 25 so as to include both white students previously attending School 25 out-of-district as well as the two black families noted above.
The segregative effect of the 1953 boundary changes to School 6's attendance zone was also relatively limited. School 6's northern boundary was contracted southward, resulting in the reassignment of an estimated twenty-seven white and five minority students (16% minority) to School 25. At the same time, School 6's eastern boundary was extended to include an estimated twenty-two white and eight minority students (27% minority) from School 12. These two changes caused School 12 to decline, in slightly desegregative fashion, from 17% to 16% minority, while School 6's minority enrollment rose slightly from 29% to 30% minority. Thus, while the 1948 boundary change between Schools 6 and 25 may be fairly characterized as emanting from an attempt to temporarily maintain School 25 as a virtually all-white school, the numerical effect of these boundary changes suggests that they did relatively little to further establish either School 6 or School 25 as racially identifiable elementary schools.
From 1953 to 1969, School 6's attendance zone boundary lines remained unchanged, but the school became increasingly imbalanced in its racial enrollment. From an estimated 30% minority in 1953, the school increased to 45% minority by 1961 and 78% by 1967. White student enrollment declined from 332 (estimated) to 126 students during this fourteen-year interval, while minority enrollment at the school increased from 143 (estimated) to 225 in 1961, then more than doubled over the next six years to 453 in 1967. By the mid to late 1960's, the rapidly increasing minority enrollment led to severe overcrowding at the school.
The attendance zone boundaries between Schools 9 and 12 also were altered a number of times during the 1960's. The attendance zone for School 9, located on Fairview Street in Central West Yonkers, is located just north of the zone for School 12, a substantially more minority-populated area which encompassed the Mulford Gardens and Schlobohm subsidized housing projects. Since 1938, the boundary line separating these two schools had been located along Loehr Place, thus dividing students from Mulford Gardens between the two schools. In 1963, the district redrew the boundary between Schools 9 (15% minority) and 12 (42% minority) in a northern direction. As a result, former School 9 students living in Mulford Gardens, an estimated 28% of whom were minorities, were reassigned to School 12. Although the percentage of white students involved in the change had a slightly desegregative effect on racially identifiable School 12 (at the time the second highest percentage minority elementary school in the district), the change also resulted in the reassignment of approximately 40% of School 9's minority student population to a significantly more racially imbalanced school. To the extent that school capacities may have been a relevant factor, the available evidence suggests that such a boundary change was inadvisable. School 9, with a capacity of approximately 560 (Phase II) to 605 (NYU Report) students, had 430 students prior to the change; the receiving School 12, with capacity for approximately 476 (Phase II) to 520 (NYU Report) students, had 458 students, or almost full capacity, prior to the change.
In 1966, an estimated seventy-eight sixth grade students from School 6 (78% minority) were reassigned to School 9 (14% minority). This change was prompted by the increasingly severe overcrowding at School 6, a condition which necessitated not only the aforementioned reassignment but also the construction of additional classroom space in School 6. As a result of this reassignment of sixth grade students, School 9's minority enrollment (in absolute numbers) nearly doubled.
The overcrowding at Schools 6 and 12 led to a revision in the district's schools construction plans. In 1965, the City Council adopted a school capital improvement program which provided for the construction of an elementary school on the Brandt Farm site in North Central Yonkers. Soon thereafter, however, school officials recognized that the rapidly increasing enrollments in Southwest Yonkers elementary schools and the overcrowding at Schools 6 and 12 necessitated the construction of an additional school in the Southwest Yonkers area. In April 1966, the Board changed the location of the school district's new elementary school to the Pitkin Park area on Locust Hill Avenue, virtually around the corner from School 6 and approximately four blocks from School 12. In doing so, the Board also decided to establish the new school as the school district's first intermediate (grades 4-6) school, relieving Schools 6 and 12 of their fourth, fifth, and sixth grade students. GX 434.
The site selected for the district's new school made racial integration a somewhat less than likely prospect. The site selected for the school was a heavily minority-populated area of Southwest Yonkers, approximately four blocks north of Getty Square, the downtown area of the city. In 1964 or 1965, Eugene Radko, then principal of School 6 and King's first principal, suggested to Superintendent Stanley Wynstra that the school be built at a location approximately one-quarter to one-third of a mile north of the Pitkin Park area. Tr. 4453-55 (Radko). Although the site suggested by Radko was located in the attendance zone for School 9, an approximately 17% minority (1967-68) school, Radko's suggestion was not based on racial considerations but on the greater school-age population density in that more northern area. Tr. 4455.
This suggestion was not pursued further by Radko or Superintendent Wynstra, and the school was constructed at the Locust Hill Avenue site, located between Schools 6 and 12.
Although the school was located in a predominately minority area of the city, the record suggests that this was done to relieve neighboring school facilities of their steadily increasing enrollments, and not as a deliberately segregative decision to isolate or identify King as a minority school. To the contrary, in 1968, the Board decided to add the fourth, fifth and sixth grade students from School 9 to the King feeder pattern, thus adding an integrative component to the already unique intermediate grade structure of the school.
The drawing of the original boundary lines for the King school was an issue of considerable dispute at trial. According to the proffered testimony of Rabbi Abraham Klausner, a leader of the Clergy of Yonkers' Education Committee who lived in the School 16 area, the Board originally planned to draw the King attendance zone so as to include a virtually all-white three-block area of the School 16 (0% minority in 1967-68) zone which, several years earlier, had been rezoned from the School 25 (41% minority in 1967-68) zone. See SCHOOLS IV.A.4.a infra. According to Klausner, the plan to include this so-called "dogleg" area of the School 16 zone in the King feeder pattern (by including it in School 9's attendance zone) was strongly opposed by residents of the School 16 area, who did not want to be reassigned from highly regarded (and identifiably white) School 16 to King, a school which was already being perceived by community members as an educationally inferior minority school. As a result, the Board allegedly reconsidered its more expansive King attendance zone proposal and excluded the northern portion of the School 16 dogleg area. Tr. 4526-32 (Klausner proffer). The attendance zone map below depicts the portions of the School 16 attendance zone to which the above discussion refers.
The record, however, weighs against a finding that such segregative conduct occurred. No evidence exists of the Board's consideration of such a plan; Board member Robert Jacobson was unaware of any such proposal being suggested by the administration or considered by the Board. Tr. 10,932-37. It is thus unclear whether the proposed northern boundary adverted to by Klausner was anything more than community hearsay or a preemptive response to an anticipated but yet-to-be introduced attendance zone proposal. In any event, objective evidence weighs against the feasibility of such a proposal: in 1969 King enrolled 701 students, or 93% capacity, and by the following year, was at 102% capacity. In addition, in 1970, after community members urged the school administration to consider including a portion of the School 16 dogleg area in the School 9 zone, the district in fact reassigned students from this area to School 9, which in turn fed into King and thereby raised King's white enrollment from 43% to 51%. The rezoned area included the area surrounding North Broadway and High Street, the same area which residents of the School 9 community had urged school officials to include in the King feeder zone. See Tr. 4480-81 (Radko). This action was taken and adhered to despite the administration's acknowledgement of the "potential explosiveness" of the King situation, GX 460, and despite the fact that including more white students in the School 9 zone left King at more than full capacity. It also was consistent with other evidence of the Board's contemporaneous interest in effectuating school desegregation in other areas of Southwest Yonkers. C-352; SCHOOLS IV.A.2.b infra. Thus, while there is evidence suggesting that School 16 community members had voiced opposition to the possibility, never implemented, of an even greater inclusion of School 16 students into the King feeder pattern, it is simply not reasonable to conclude that the original drawing and subsequent expansion of the King attendance zone was, in light of the aforementioned circumstances, segregative conduct by the Board.
Controversy surrounded the naming of the school as well. The school was originally referred to as School 33, in keeping with the district's historic practice of naming elementary schools by number. In February 1969, the Yonkers NAACP submitted a proposal to the Board that the school be named after the recently slain Martin Luther King, Jr. GX 441. School officials were originally reluctant to adopt this proposal for fear of identifying the school as a minority school and because of a disinclination to depart from the consistent practice of naming elementary schools by number. Tr. 4541 (Radko); Tr. 5048-49 (Jacobson). However, the district's alternate proposal to name a section of the school's library after Dr. King was strongly denounced by members of the black community, with Yonkers NAACP President Reverend Serenus Churn reportedly describing the proposal as an example of "latent racism in the Board of Education." GX 442, 443, 445. The Board reconsidered and voted to name the school after Dr. King, thus creating the first non-numbered elementary school in the district. GX 444. The Board's reversal on this issue was supported and applauded by community members. GX 446.
Regardless of the subsequent racial segregation which occurred at King, the record establishes that the Board planned the opening of King with the hope that the school would serve as a significant step towards correcting racial imbalance in the Southwest Yonkers public schools. Testimony of school officials and various written communications with state education officials all reveal the integrative intent of the Board and administration in the opening of King. Tr. 4063, 4089 (Sobel); Tr. 5052 (Jacobson); Tr. 5203-04 (Morris) (re Superintendent Paul Mitchell); GX 452, 915. Whether this intent was predicated on an overly optimistic assumption about the ability to attract and maintain white students at the school, the record does not reveal an optimism so unrealistic so as to be regarded as insincere or pretextual. At the time of King's opening, nearly all the students who were reassigned to the school were introduced to a school environment significantly more racially integrated than those of the schools they previously attended.
After the opening of King in 1969, however, the efforts to establish King as a racially balanced intermediate school began to disintegrate. The actual opening of the school itself detracted from the integrated image which the Board had sought to create. The school opened in April 1969 with students coming from predominantly minority Schools 6 and 12; School 9 students did not attend King until the following school year. Tr. 4466 (Radko). The addition of three black teachers to King's faculty raised the minority faculty percentage to more than two-and-a-half times the districtwide average. In May 1970 (one month prior to the end of the school year), Eugene Radko was reassigned to predominatly white School 9 (and eventually to School 11) and was replaced as principal by Nellie Rice, who is black. This reassignment, while motivated in part by Radko's outspoken behavior concerning the setting of the northern boundary of the King feeder zone, Tr. 4492-93, 4498-99 (Radko), was also prompted by philosophical disagreements between Radko and the central administrative staff over decentralization in school management, and by Rice's excellent reputation as principal for School 9. Tr. 4540 (Radko); Schainker Dep. 111.
The following year, the Board extended the School 9 zone westward in the manner described previously, decreasing King's minority enrollment from 57% to 49%. The protests of School 9 parents did not subside. In December 1970, a petition signed by 434 parents was submitted to school officials in which parents expressed concern over King's academic and discipline problems and urged the Board to restore the School 9 and 16 attendance zones to their pre-existing status. GX 453. The Board, however, did not alter the School 9 attendance zone boundary during that or the following (1971-72) year. Shortly thereafter, white students from the School 9 area began to withdraw from the King feeder pattern, apparently either relocating or enrolling in private schools in the area: the number of white students at King dropped from 392 in 1970-71, to 224 in 1971-72, a 43% decline. (The grade 4-6 white student enrollment at the four non-public schools in the King feeder zone (Sacred Heart, St. Michael's, Halsted, and St. Joseph's) declined only 7% (583 to 542 students) during this same interval. SB 98). As the total enrollment at King declined from 767 students in 1970 to 746 students in 1971 and 652 students in 1972, the minority enrollment rose from 49% to 70% to 78%.
The first of two segregative attendance zone changes occurred in 1972, when School 9 was eliminated as a King feeder school. As a result, School 9 third graders continued to attend School 9 the following year. Of the approximately fifty-three or fifty-four students involved, thirty-two were white and the remainder minority. One year later, the racial identifiability of King increased when the district rescinded its plan to operate King as a grade 4-6 intermediate school and converted it to a K-5 elementary school. As a result of these two changes, King's minority enrollment increased from 70% to 87%.
The decision to remove School 9's fourth graders from the King feeder zone is traceable to the timetable set forth in the district's 1973 Reorganization Plan, in which Superintendent Alioto recommended that the district's schools be organized on a K-5, 6-8, 9-12 basis. Since under the plan School 9 was scheduled to reacquire fourth and fifth grade students in 1973-74 pursuant to its conversion to a K-5 elementary school, there was apparently little reason to assign School 9 fourth graders to King in 1972 only to have them reassigned back to School 9 the following year. Although the School 9 change was made months before the introduction of the 1973 Reorganization Plan, Alioto had previously expressed his interest, as early as 1971, in converting the district's grade structure to a K-5, 6-8, 9-12 pattern as soon as possible. Tr. 10,937-38 (Jacobson); Tr. 13,054-55 (Pitruzzello). Yet, other than the conversion of School 11 and Twain Middle School into K-5 and 6-8 schools, respectively, King was the only school to be reorganized in this manner prior to implementation of the 1973 reorganization plan. Unlike School 9, Schools 6 and 12, both predominately minority schools, continued to feed students into King in 1972-73.
Several factors, however, render a finding of segregative intent in these circumstances unwarranted. Numerical evidence suggests that such intent was not present: the fourth grade School 9 students were 41% minority, as compared with 70% King; the withdrawal of the School 9 fourth graders increased the percentage minority enrollment at King by approximately 3%, and increase which, as noted above, would have occurred in any event one year later. In addition, this reassignment, even though segregative, does not explain the district's simultaneous decision to retain fifth and sixth grades from the School 9 zone at King during the 1972-73 year, even though School 9 had well over 100 students under its recommended operating capacity and thus could have accommodated such a reassignment. In addition, documentary evidence concerning conditions at King in March 1972 suggests that the retention of incoming School 9 fourth grade students the following term was based on anticipated limits on King's enrollment capacity, projected increases in fourth grade enrollments, and class size. GX 455. Such a finding would also be inconsistent with both the district's refusal to comply with the community's earlier demands to restore the School 9 and 16 boundaries to their pre-King status, as well as the district's express rejection in 1974 of a Councilman's request that school officials rezone the dogleg area of School 9 into the virtually all-white School 16 zone in which this area had previously been included, a proposal which was rejected specifically because it would have decreased the white student population at 28% minority School 9. SB 214; Tr. 13,436 (Frank).
The 1973 Reorganization Plan's conversion of King from an intermediate to an elementary school completed the transformation of King from an integrated intermediate school to another of the many identifiably minority elementary schools in Southwest Yonkers. The conversion of King from a 4-6 to a K-5 school in 1973 was segregative both as to King and as to several surrounding schools as well. King's new attendance zone was created from sections of the School 6 (97% minority) and School 12 (86% minority) zones; the newly organized King elememtary school opened as an 87% minority school. Although the change had a desegregative effect on School 9 (18% to 31% minority), it simultaneously increased the already-heavily minority enrollment percentages at three neighboring schools (6, 12, 25). This change was accompanied by a similar rise in minority faculty at the school, which by 1973 had a 42% minority staff. Both student and staff minority percentages increased throughout the 1970's, reaching levels of 98% and 37% (after a high of 53% in 1975-76), respectively, in 1980. This increase in King's minority enrollment was due primarily to the 1976 school closings, see SCHOOLS IV.A.3.b infra, and the conversion of the district's elementary schools from K-5 to K-6 facilities in 1980.
Despite the foreseeably segregative consequences of King's conversion, however, the evidence regarding the district's conversion of King to an additional K-5 elementary school does not support an inference of segregative intent. The elementary school grade reorganization recommended in Superintendent Alioto's 1973 Reorganization Plan was not a significant source of controversy, much less racial opposition, at the time and was in and of itself a rational educational objective which was supported by school officials and community members as well. Although the conversion of King to a K-5 elementary school was contrary to the Board's earlier desire to utilize King as a desegregative catalyst in an increasingly minority area of Southwest Yonkers, the history of King clearly demonstrates the interrelationship between the 4-6 grade configuration and the district's attempt to promote racial integration in the area to the extent possible. By 1973, King, a 78% minority school with a steadily declining white enrollment, was realistically well past the point at which meaningful integration could be successfully achieved, absent measures far beyond any of the changes previously considered by the district. Although the Board failed to persist in its prior efforts to create an integrated school in the area, the major factors underlying the increased minority identifiability of King -- the site selection, the naming of the school, and the white flight caused primarily by the district's intransigence with respect to the demands of the School 9 community for a segregative reassignment of its students -- cannot reasonably be construed as evidence of segregative intent by the Board. In light of the previous integrative efforts at King and the other aforementioned circumstances inconsistent with inferences of segregative intent, we are unable to conclude that the 1973 conversion of King into a K-5 elementary school was part of a consistent pattern of segregative acts by the Board from which a finding of segregative intent may properly be made.
b. School 10
School 10, an elementary school, is located between the Riverview I and II subsidized housing projects on Riverdale and Hawthorne Avenues in Southwest Yonkers, between Getty Square and the Hudson River. The idea for the construction of School 10 originated from the Board's desire to replace the physically inadequate School 19, located three to four blocks south of School 10. P-I 51-34, at 11. This plan was part of a more comprehensive proposal to construct a new intermediate (grades 4-6) school in the southern part of the School 3 zone, drawing students from School 3 (34% minority in 1967), 19 (68% minority) and 27 (5% minority) and thus improving the racial balance of schools in the Southwest Yonkers area. During the late 1960's, the Board received $125,000 in capital improvement funds for the planning of this intermediate school. P-I 51-48, 51-49, 51-55, 51-58.
The Board originally considered locating the new School 10 in the city's second urban renewal area, several blocks south of its present location, in order to relieve Schools 3 and 19 of their overcrowded conditions. Tr. 9335-36, 9406 (Curran). In the spring of 1967, Walter Webdale, Director of the Yonkers Urban Renewal Agency ("YURA"), met with Superintendent Wynstra and Deputy Superintendent Irving Goldberg and asked them to consider locating the school in the Riverview urban renewal area to the north, where the City was planning to construct several hundred units of subsidized housing. GX 284, 285; Webdale Dep. 201. The inclusion of the school in the City's urban renewal project was to serve as the City's statutory non-cash contribution for the Riverview urban renewal project, thus enabling the City to receive credit from the federal government towards its share of urban renewal expenditures and allowing the Board to construct a new school without a reduction in its capital improvement budget. In July 1967, the Board, in accordance with Webdale's proposal, passed a resolution requesting the City to provide a five acre site in the Riverview urban renewal area for the construction of a replacement school for School 19. GX 302. The five acre site size was in conformity with New York State Education Department standards and was communicated by Superintendent Wynstra to Webdale. GX 285; Tr. 4977 (Jacobson). The City Council also approved the proposal. C-711.
The construction of School 10 was designed as part of a self-contained neighborhood concept for the Riverview urban renewal area. With the City having made the decision (over the objections of Planning Director Philip Pistone) to make residential re-use of the City's second urban renewal area, the City began planning the construction of its new housing development. According to a March 1968 letter written by Webdale to HUD Assistant Regional Administrator for Urban Renewal Charles Horan, the school was to serve 400 families from the Riverview housing project, 540 families from Phillipse Towers (the predominately white Mitchell-Lama middle income housing project located directly across from Riverview), and 100 families from a small area to the west of Riverview. GX 270. One year earlier, Phillipse Towers residents had expressed to state officials their dissatisfaction with the deterioration in the neighborhood and with School 19, a school they described as "overcrowded, overburdened and dilapidated," and noted their impatience with the progress of the City's urban renewal program. GX 315. City and HUD officials hoped, however, that the construction of new housing and school facilities would result in the stabilization and rejuvenation of the then-deteriorated neighborhood. Tr. 1353-55 (Del Bello); Tr. 2267-68 (Yulish). The City hired architects to assist them in the design of the Riverview project, a design which had been developed elsewhere in the northeast area of the country. Tr. 1354-55 (Del Bello).
By 1968, YURA, led by Walter Webdale, became increasingly involved in the planning and construction of School 10. In his letter to HUD official Horan, Webdale urged HUD to approve the City's urban renewal funding application for Riverview, stating his belief that a majority of the Riverview residents would be "middle income young families." GX 270. During the remainder of that year, the original conception of the school underwent signifiant change. Communications from Webdale to various City and HUD officials, written between March and December of 1968, reflect that School 10 was now being planned as an additional K-3 primary school which would relieve School 19 of its overcrowding, and that School 19 would continue to enroll students from the area. GX 270, 288, 313, 314. The school's site was now specified as one acre for the school itself, with additional space for parking and outdoor recreational facilites. GX 286, 313. By the fall of 1968, Webdale began to press school officials to begin construction of the school by the following year in order to demonstrate to HUD officials the City's commitment to the urban renewal project. GX 286, 287, 314; Webdale Dep. 206-08.
In February 1969, the Board submitted preliminary site plans to Webdale. According to subsequent correspondence between City and school officials, these plans reflected the Board's understanding that the school would be located between Riverdale and Hawthorne Avenues, with a play area and fountains located between the school and Riverdale Avenue. GX 297, 300, 301. By January 1970, the Board's architect had finished the site plans for the school. These plans continued to provide for a school site, located between the two avenues, with a play area, trees, shrubs and fountains in front of the school but no other buildings separating the school's play area from Riverdale Avenue. GX 294-296; Tr. 4972, 4989 (Jacobson). At the same time, Webdale assured community members that the Riverview project would include adequate play space for the school. GX 291.
The plans of the Board's architect were consistent with the school district's planned development of the School 10 facility itself. The school was designed as the district's first "open school," a school without walls in which students would be taught in an unstructured and flexible interior environment by teachers with special training in the innovative open education instruction technique. The school's open interior was premised on the general openness of the school's surrounding environment. While the open school concept was an untested concept in the district, school officials were enthusiastic about the school and were optimistic that the attractiveness of the open school concept, along with the juxtaposition of the school to Phillipse Towers and the proposed income quotas for Riverview tenants which were communicated to the Board,
would result in a racially balanced student enrollment at the school. See generally Alioto Dep. 10; Tr. 4776-77 (Jamieson); Tr. 5108 (Jacobson); Tr. 5205-06 (Morris) (re Superintendent Mitchell); Tr. 9836-38 (Minervini); Tr. 11,406-08 (Guerney); Tr. 11,673-74 (Leahy).
By late 1969, Webdale continued to press forward with the City's efforts to commence construction of School 10. With the application for federal funds for the City's Riverview urban renewal project still pending, Webdale asked Superintendent Mitchell to send HUD officials a letter, identical to the one which Webdale had written a year-and-a-half earlier, requesting that HUD approve its federal urban renewal funds grant application. GX 317, 381. In early 1970, Webdale communicated to City Manager Thomas Groux and City Councilmember Jesse Eisen that it was "extremely important" for the City Council to approve funding for the school's construction "at the earliest possible date" and urged the City Council to take steps to secure the abandonment of surrounding streets in the area so that construction could commence by the spring. GX 292, 293.
The remainder of 1970 was occupied by further planning of Riverview and the commencement of construction of School 10. During this period, the City's plans for the Riverview housing project were undergoing significant change. As of February, neither the type of redevelopment or redeveloper for Riverview, nor the income breakdown for the housing units, had been decided, with the UDC mentioned as a possible developer. According to YURA minutes dated February 13, 1970, the stated goals of the urban renewal program continued to be to provide relocation housing for urban renewal displaces and to "encourage an influx of new people into the area who have for years been leaving." GX 334, at 2. These minutes also reflect that the housing contemplated for the school would include 300 to 400 units and that construction of the school would commence in April. Id.
In March, the Board's site plans for School 10 were submitted to the City and YURA. GX 300, 301. By that time, the UDC had been named as developer of Riverview. P-I 150-112, 150-112A.
By April, City officials had tentatively agreed with the UDC to construct four housing projects in Southwest Yonkers for 1,400 units of housing, including 850 units at Riverview, in addition to the contemporaneous development of several privately sponsored housing projects in that area. GX 1088.8. In July, a memorandum of understanding between the City and the UDC providing for 1,200 units of housing, including 800 units at Riverview, was approved by YURA and the City Council. As discussed previously, there was little public discussion or planning board consideration of these plans or the changes which had occurred. See HOUSING IV.C.2, IV.D.5 supra. School officials continued to plan to use School 10 as a means of relieving School 19 of its primary grade students, leading eventually to the closing of School 19 and the construction of a new intermediate school for Schools 3, 19 and 27. P-I 51-64 (June 1970 letter from Assistant Superintendent Gallagher to City Budget Director Casey).
At a January 1971 UDC Citizens Advisory Committee meeting, Riverview's architect discussed problems which had arisen concerning the design of the Riverview complex, particularly with respect to the location of School 10 in the center of the site and the resulting incompatability of the 400 Riverview Stage I housing units and the school's "necessary open space." GX 305. Proposed solutions included the construction of scaled or sloping apartment buildings, the conversion of the school's parking lot into a play area, and the construction of commercial units and a day care center, instead of apartments, on Riverdale Avenue. Id. In a March 1971 meeting, Webdale and City Manager Seymour Scher notified Board member Charles Curran and Acting Superintendent Gallagher of the change in plans for Riverview, including the reduced school site size and the erection of a seven-story apartment building and retail complex in front of the school on Riverdale Avenue. GX 297, 301.
Board members and school officials strongly and unanimously denounced the proposed change in plans; as Board member Jacobson described it, "the Board of Education, everyone, literally exploded." Tr. 4990; see also Tr. 9838 (Minervini). A number of alternative courses of action were considered by the school district. The Board considered taking legal action against the City and the UDC and was advised by outside counsel that the Board would be justified in not accepting the proposed site based on YURA's alleged breach of contract. GX 300, SB 631. Board member Siragusa opposed opening the school in light of the revised plans, while Board member Curran requested that the City acquire the site originally sought by the Board in 1967. Tr. 5419-23, 9406-07. In October 1971,
Superintendent Alioto asked City Manager Scher to "forestall the arbitrary action" of YURA, the effect of which was described by Alioto as "cannabaliz[ing] the school site" and creating an "airshaft" school surrounded by apartment houses and devoid of adequate play space. GX 301; see also GX 303. Scher informed Alioto that the elimination of the planned play area in front of the school was a necessary cost saving measure, and that YURA had developed an alternate plan for the school site which included two play areas -- one in front of the school, and the other in the rear of the school in a space which had originally been slated for parking. Scher suggested that the apartment building along Riverdale Avenue would act as a protective "barrier" between the School 10 students and the street. GX 297.
Superintendent Alioto remained unpersuaded and pursued the Board's protest with City and URA officials. In December, Alioto was informed by Scher that elimination of the proposed forty-one unit low and moderate income apartment building which was to be located in front of the school would be economically infeasible and would "financially prohibit" the entire Riverview Stage I urban renewal project, and would deprive the City of "critically needed" relocation housing. GX 299. Scher assured Alioto that plan revisions could be made to provide for 100 feet of partly covered open space in front of the school and that the proposed placement of the school and housing project "would provide an attractive open area, ... suitably landscaped" and sufficient for recreational purposes. Id.
At a December 1971 meeting of school, City, and UDC officials, Webdale (by that time employed by the UDC) suggested that the commercial units previously planned for the ground floor along Riverdale Avenue would be removed to allow for fifty-five feet of open space along Riverdale Avenue in front of the school, and that additional space along Riverdale Avenue would be provided for in the development of the Riverview Stage II housing project. GX 298. By this time, with construction of School 10 nearing completion, the Board was essentially faced with the choice of rejecting the school site as revised, thereby jeopardizing the City's urban renewal funding and leaving students in the overcrowded and physically inferior School 19 facility, or accepting the partly constructed School 10 facility despite its substantial site limitations and relieving School 19 of its overcrowding. On December 16, Alioto notified Scher that the Board, while remaining "concerned with the intrusion of this structure in front of the school building, yet being aware of their overall civic responsibility and the impact of further delays to the Urban Renewal Development," agreed to the proposed modification of the school site design. GX 306. As a result, construction continued along Riverdale Avenue, with the additional apartment building almost totally obscuring School 10 from view and eliminating the originally planned outdoor play area in front of the school. By April 1972, the Board had approved a proposal by the City's architect to eliminate the fifty-five foot open space in front of School 10 and instead construct a plexiglass enclosure along Riverdale Avenue for use as a recreation area for the school. GX 309, Tr. 4991 (Jacobson) Tr. 5420-23 (Siragusa). As a result, the school was barely visible from the street, with the sign identifying School 10 placed on the back of the school building, facing Hawthorne Avenue.
The effect of these modifications to School 10's site was clearly detrimental. Superintendent Alioto recalled that the erection of the additional housing units in front of the school undermined the school's potential for drawing students to the school. Alioto Dep. 10. Board members Jacobson and Siragusa also described the school site in distinctly negative terms, a perception shared by others in the community. Tr. 4992, 5420-22. A newspaper editorial decried the City's use of the land along Riverdale Avenue for additional apartments and described the result as creating a "new ghetto school." GX 303.
The school building itself, however, was still considered an educationally positive contribution to the school district, affording school officials the opportunity to test the open school education concept in Yonkers. Tr. 5002 (Jacobson); Tr. 9838 (Minervini). As the opening of School 10 approached, school officials eagerly prepared for the opening of the district's first open school: faculty members were given special instruction in the open school teaching method, and School 6 teachers implemented an instructional program for first graders modeled after the open school method. Tr. 4823 (Jamieson); Tr. 11,636-37 (Leahy); GX 476. A number of university and foreign educators visited the school, and the 1972 NYU Report observed that the facility presented the district with "an opportunity to conceive imaginative uses not normally afforded in existing facilities." GX 115, at 264; SB 183; Tr. 11,644-45 (Leahy).
The problems with the school's site size persisted subsequent to its opening in 1972. With the construction of Riverview I and II still ongoing around the school site, School 10 opened as a K-4 school with a 76% minority enrollment, drawing students from the bulk of School 19's former attendance zone. By that time, school officials also notified the URA and UDC that the school would be converted into a K-5 elementary school, a change which was in accordance with Superintendent Alioto's 1973 Reorganization Plan but which intensified the inadequacy of the school's already limited recreational facilities. GX 309; Tr. 11,643, 11,651 (Leahy). School officials had continued difficulty in securing adequate play space for School 10 students, with a conflict arising over the use of paved space in the rear of the school for parking rather than recreation. GX 307, 312, 322; Tr. 11,642 (Leahy). The district's ability to provide adequate play space also was limited by the steeply sloped nature of the space in the rear of the school, an area which Riverview's Program Manager suggested could be "imaginitively designed to provide an interesting play experience." GX 322. The glass-enclosed area along Riverdale Avenue was seldom used for recreational purposes in part because of the ongoing construction in front of the school, a condition which caused considerable inconvenience for School 10 students. Tr. 4784-85 (Jamieson); Tr. 4992, 4999-5000 (Jacobson); Tr. 11,643-44 (Leahy). The difficulties in securing recreational space persisted throughout the 1970's, with the two concrete spaces in front and back of the school continuing to serve as the school's only available outdoor play areas. The inadequacy of School 10's outdoor facilities was compounded by the structural limitations of the school itself, specifically, the building's low ceilings and lack of a gymnasium.
By 1973, a number of community groups and City officials expressed increasing concern over the construction of the additional 339 units of housing contemplated by the Riverview II urban renewal project. In a letter to the Governor of New York, the Yonkers Economic Development Corporation sought to delay construction of Riverview II, with the ultimate goal of adopting an alternative use for the site and relocating the project to a "lower density area in another part of Yonkers." GX 330. The organization specifically expressed its concern over the impact of the additional housing units on population density in the area, in light of both the physical inadequacies of the school site, Riverview's proximity to numerous other subsidized housing projects in the area, and the "[d]ifficulty in renting to maintain fair racial balance." Id. City Councilmembers Goodfriend and Goldman sponsored a resolution requesting a nine month delay in the construction of Riverview II in order to re-evaluate the use of the site and the impact of the additional housing units on School 10's facilities. GX 275. Mayor Del Bello expressed to Webdale, and mayoral candidate Angelo Martinelli was reported to have expressed, similar concern over the Riverview II project's expected impact on population density in the area and the project's physical obstruction of School 10. GX 328, 329.
Construction of Riverview II nevertheless proceeded as previously scheduled. By that time, City officials had expressed their disappointment with the Riverview project and implicitly acknowledged the predominance of housing-related objectives and desires with respect to the project. In a May 1974 letter to UDC Director Webdale requesting alterations in the design of the Riverview parking garage, CDA Acting Director Alphons Yost stated that Yonkers has been most cooperative with you and your organization in the Riverview Development and, in hindsight, some of our compromises may not have been in the best interest of the City. These compromises include the partial blocking of P.S. 10 along Riverdale Avenue, to allow for more units and the deletion of open space for garage use at the corner of Prospect Street and Hawthorne Avenue. Since, these compromises were in your best interest and not the City's, we trust you will give this request your full consideration.
In 1975, the construction of Riverview I and II was completed. The Riverview II building was located closer to Riverview I than had originally been planned in 1971. School 10 was (and is) almost completely obscured from view, with approximately thirty feet of space along Riverdale Avenue separating the Riverview I and II apartment buildings. GX 1005. In 1975, School 10 was 83% minority, the fourth highest minority enrollment in the district, and employed an increasingly disproportionate number of minority staff.
The circumstances surrounding the planning, construction and opening of School 10 had an impact on the district's other Southwest Yonkers elementary schools, particularly School 19. As recently as June 1970, school officials continued to plan towards the eventual closing of School 19 -- a school with no gym, a small play area, and in need of extensive rehabilitation -- and the construction of an intermediate school in the southern part of the urban renewal area to serve Schools 3, 19 and 27. P-I 51-64. By early 1972, plans to build a new intermediate school for the School 3/19/27 area had been abandoned. P-I 51-71. Thereafter, City planning officials suggested that School 19 undergo major rehabilitation rather than closing. GX 311. As a result, $250,000 in capital funds were allocated to the rehabilitation of School 19. P-I 51-87.
School officials, however, adhered to their original desire to close the school. In January 1974, in response to a request by Assistant Superintendent Anton Jungherr for input regarding the planned rehabiliation rehabilitation of School 19, Assistant Director of Elementary Education Joseph Guerney recommended against incurring major expenditures to rehabilitate School 19 without at least implementaing some redistricting of students in the area in order to improve school utilization. Guerney noted that School 10 was 400 to 500 students under full capacity; at that time, School 3 was still overcrowded and School 19 was underutilized. P-I 19-27; GX 64. In February, Assistant Director of Pupil Personnel Donald Batista informed Superintendent Alioto of a recommendation, agreed upon by school officials, to close School 19 at the end of the year and transfer its students to School 10, along with a recommended transfer of School 3 students to School 27, and 12% minority school with considerable available space. GX 507. By April, these school officials reiterated their agreement that School 19 should be closed, and school officials began to investigate the cost savings of closing the school. GX 961; P-I 19-30.
The proposed closing of School 19 generated considerable opposition from the School 19 community. School 19 parents were concerned primarily with the perceived inadequacies of School 10, including its lack of adequate recreational space, the larger class sizes which would result at School 10, and a dissatisfaction with the open education program at the school. GX 961; SB 198, 608; Tr. 4768 (Jamieson). In addition, although School 10 was well under full capacity at the time, Board members concluded that the large number of housing units nearing completion at Riverview would lead to increased enrollments at the school, thus inhibiting their ability to close School 19. Tr. 5424, 5466 (Siragusa); Tr. 5512-13 (Minervini). As a result of these considerations, the deteriorating School 19 facility remained open. The following year, the overcrowding at School 3 and underutilization at School 19 let to the reassignment of approximately ninety-five students (seventy-six minorities) from the northern part of School 3 (63% minority)'s attendance zone to School 19 (82% minority). SB 615; Tr. 11,215-16 (Guerney).
One year later, School 3 was closed as part of the district's fiscally motivated school closings, and additional minority students were reassigned to School 19. See SCHOOLS IV.A.3.b supra. Thus, in two years, School 19's enrollment virtually doubled (275 to 547) as the district effectively abandoned its longstanding plans to close the school. By 1976, School 10 (85% minority) and School 19 (78% minority) were two of the most predominantly minority elementary schools in the district.
The evidence concerning the planning, construction and opening of School 10 clearly demonstrates the Board's subsidiary role in the decisionmaking process and the predominance of the City's residential objectives in the development of the Riverview project. Each critical decision with respect to School 10 was resolved by adherence to the City's independent concerns rather than the school district's educational goals, all of which had a distinctly negative impact on the district's efforts to develop an attractive and integrated "open school." The strong resistance with which the various alterations to School 10 were greeted by school officials and the practical infeasibility of alternative courses of action undermine any argument that the Board's reluctant acquiescence in the City's conduct concerning the development of School 10 reflects any meaningful degree of Board control over the development of the school.
Likewise, the evidence regarding the nature and extent of the Board's involvement in the decisions which contributed to School 10's racially segregated condition demonstrates that its actions were not designed to achieve this result. Cf. Reed v. Rhodes, supra, 607 F.2d at 728-30; Berry v. Benton Harbor, supra, 442 F. Supp. at 1298-99. The undermining of the open school concept at School 10 and the resulting racial consequences for elementary schools in the area instead resulted in significant part from decisions in which both the Board's role and educational objectives were secondary to those of the City. In light of the Board's original plans for the school and the circumstances surrounding its reluctant acquiescence in subsequent modifications to the school site, the foreseeably segregative impact of the Board's conduct on School 10's racial enrollment does not support an inference of segregative intent by the Board. We find that the plaintiffs have failed to demonstrate that the Board's site selection, planning, and opening of School 10 was motivated by segregative intent.
c. Commerce Middle School
The opening of Commerce Middle School was part of the Board's consideration of a series of school reorganization proposals prepared by the New York University School of Education. For a discussion of the Board's conduct with respect to Commerce Middle School, see SCHOOLS IV.F.2 supra.
3. School Closings
Until recently, school closings had been relatively rare in Yonkers. Between 1950 and 1973, School 1, in Runyon Heights, was the only school closed by the Board. In 1973, the High School of Commerce, one of the district's specialized occupational high schools, was closed pursuant to Superintendent Alioto's 1973 Reorganization Plan. The remainder of the school closings occurred as a result of the district's 1976 School Closing and 1977 Phase II reorganization plans. The 1976 school closings, prompted by the city's fiscal crisis, involved six elementary schools (3,4,7,12,15,24) as well as the Commerce Middle School. The closing of Burroughs Middle School in 1978 was accompanied by the relocation of the Saunders Trades and Technical High School to the Burroughs facility, a course of action which was recommended as part of the Phase II plan, and the reassignment of Burroughs students to other middle schools in the district.
The closing of Burroughs and the High School of Commerce are significant primarily because of the other interrelated school organization changes which occurred contemporaneously. These changes are therefore discussed elsewhere in these findings. See SCHOOLS IV.F.2 infra (Commerce closing); SCHOOLD IV.F.3 infra (Burroughs closing). The remainder of the district's school closings -- the closing of School 1 in 1954 and the 1976 school closings and related attendance zone changes --are discussed below. In addition, the Board's failure to close or implement attendance zone changes with respect to Longfellow Middle School is also discussed as part of our examination of school closings.
a. School 1
School 1, formerly the district's oldest elementary school, was located in the Runyon Heights area of Northwest Yonkers. Runyon Heights constitutes the only area of heavy minority population outside of the Southwest Yonkers area. The Runyon Heights area is bounded on the west by the Saw Mill River Parkway, on the south by Tuckahoe Road, on the east by the New York Thruway, and on the north by Curtis Road. Runyon Heights is also bounded on the north by a thin strip of land, owned by the Homefield Neighborhood Association, which effectively seals off the Runyon Heights minority community from the surrounding white neighborhood to the north. Tr. 2740-42 (Downes). To this day, Runyon Heights streets terminate in a dead-end just below this strip. In addition, the original deeds for many properties in the Homefield area contained racially restrictive covenants prohibiting the sale of such properties to non-whites. Tr. 2375 (Guzzo); Tr. 2733-35 (Downes).
Although attendance zone maps are not available for years prior to 1938, the testimony of several persons who attended School 1 during the 1930's established that students from outside the Runyon Heights area attended the school at one time. Specifically, students from the virtually all-white Homefield community, located north of Runyon Heights, as well as from largely white areas which were east, south and west of Runyon Heights, attended School 1. These white students rendered School 1 a racially integrated facility, with white students comprising roughly one-half to two-thirds of the student body, even though Runyon Heights itself was a predominately minority community. See generally Tr. 2582-85 (Mareno); 2636 (Williams); 2672-74 (McRae); 2718-22 (Downes).
The 1938 attendance map reveals that the school district drew the School 1 attendance zone boundaries so as to track precisely the aforementioned strip of land to the north and the Saw Mill River Parkway to the west, thereby reassigning students from the Homefield community to virtually all-white School 22, a Northwest Yonkers school somewhat farther away from Homefield than School 1 and located on the other side of the Saw Mill River Parkway. In addition, the southern boundary of the School 1 zone was drawn along Tuckahoe Road, thereby reassigning white students previously attending School 1 to virtually all-white School 5. The resulting School 1 attendance area was the smallest in Yonkers, even though the School 1 facility subsequently suffered from severe underutilization problems which contributed to its eventual closing. Other neutral justifications, if any, for this particular drawing of the School 1 attendance zone boundaries are absent from the record. Based on the available evidence, the original drawing of School 1's attendance zone boundaries constituted deliberate, racially motivated gerrymandering, done in a manner which carefully incorporated privately created residential segregation.
The consequences of this attendance zone change were striking. School 1 quickly became a heavily minority school, reaching an estimated 91% minority in 1950, and an estimated 99% minority at the time of its closing in 1954. The facility was substantially underutilized; in 1950, it enrolled approximately 100 students while maintaining capacity for 240 (as of 1954). GX 2, at 3; SB 810.2. This underutilization resulted in double-grade sessions at the school, i.e., the assignment of teachers to combined first and second, or third and fourth, grade classes. The first three black teachers hired by the Board were assigned to School 1, thus further identifying it as a minority school.
Simultaneously, all-white schools in areas surrounding the School 1 zone were suffering from increasing overcrowding. School 22 in particular was beset by overutilization problems; by 1950, plans were made to build additions to the facility to relieve this condition. GX 420. In 1950, School 22's enrollment was 314 students (all white), rising to 393 by 1954; its capacity was 390 (as of 1954). School 5, less than a mile south of Runyon Heights, enrolled 630 K-6 students (all white) in 1950 and 844 K-8 students by 1954; its capacity was 960 (as of 1954). GX 2. School 8, while considerably farther from Runyon Heights than Schools 22 or 5, was severly overcrowded. The school enrolled 878 students (two minorities) in 1950; the School 8 building, however, only had capacity for 690 students (as of 1954), a condition which necessitated the use of a basement annex in a nearby housing development as classroom space. GX 423.
Elementary school maps indicate that particular areas in the attendance zones for each of these three schools (22,5,8) were closer to School 1 than to the school in whose attendance zone they were then included, a condition of which the Board was aware. SB 626; GX 423.
By 1953, efforts were made by School 1 community members to expand the School 1 zone in order to ameliorate the underutilization problem at the school and simultaneously relieve the overcrowding of neighboring schools as well -- a suggestion which also would have had a clearly desegregative effect on School 1. Several members of the Runyon Heights community appeared before the Board in representative capacities, repeatedly urging the redistricting of School 1 to include those students previously eliminated from the School 1 zone. GX 423, 424. These efforts were consistent with the prevailing attitude of the Runyon Heights community, which favored redistricting rather than the then-apparent plans to close the school. Tr. 2610-12 (Mareno). The proposal was also clearly feasible from a capacity standpoint: at the time of its closing, School 1 had room for approximately 140 additional students, not including the potential for an even larger enrollment had the Board voted to build extensions to School 1 (as it had done with various other schools at or about that time).
These efforts proved unavailing. In March 1954, two months before the decision of the United States Supreme Court in Brown v. Board of Education, the Board voted to close School 1. GX 428a; SB 32. The stated reasons for the Board's decision were non-racial, namely, the desire to "provide better education at less cost to the city," an apparent reference to the elimination of double-grade classes and the closing of the underutilized school. GX 425. The Board resolution also alluded to the age of the building, noting that School 1 was built in 1872, with additions built in 1900, 1917 and 1936. SB 32. Based on subsequent events, however, it is reasonable to conclude that the desire to dismantle the district's lone majority black school also animated the Board's decision. See Tr. 2611 (Mareno). School 1 students were reassigned to Schools 5 and 24, with a resulting desegregative effect on the latter schools. SB 810.6, at 2 (School 5 - 1% to 8% minority; School 24 -1% to 18% minority). When the decision was protested and legally challenged by black parents from the School 1 community, the New York State Commissioner of Education rejected the legal challenge, relying in part on a letter from the Yonkers NAACP stating that the Board's decision was "the most realistic solution to this long-standing problem." GX 427. Superintendent Wynstra thereafter wrote to the NAACP, thanking them for their role in "clarifying our intent and action" in closing School 1. SB 803; see also SB 754.
The Board argues that the NAACP's position on the School 1 closing demonstrates the propriety of the decision.
The NAACP's support of the Board's decision, however, must be viewed in context. Because the Board had consistently refused to consider and implement the alternative of redrawing attendance zone lines in the Runyon Heights/Homefield area so as to maintain School 1 as an integrated facility, the NAACP as well as other groups and individuals who might have otherwise opposed the closing of School 1 were essentially faced with a Hobson's choice: support the closing of the Runyon Heights neighborhood school, even in light of the resulting burdens on black students, or oppose the closing and thus perpetuate what was at the time the only majority black school in Yonkers. Only after the Board rejected the repeated redistricting suggestions of the Runyon Heights community and decided instead to close School 1 did the NAACP support the Board's decision as "the most realistic solution to this long-standing problem." Viewed in this light, the NAACP's eventual support of the Board's decision to close School 1 cannot immunize the decision from scrutiny.
At first blush, the Board's decision to close School 1 is troubling. While School 1 students were reassigned to schools within one mile of Runyon Heights, the redistricting proposed by the School 1 community would have involved no greater, and in certain instances, a lesser travel burden for Homefield or School 5 students, who at one time made the very trip to School 1 envisioned by the suggested redistricting. The redistricting proposal also would have eliminated the problematic double-grade classes at School 1 and presumably would have avoided the need for some of the additional classroom construction at School 22 one year later. The two double classes at School 24 could also have been easily eliminated by transferring students from a neighboring school zone, for example, portions of the attendance zone for School 16 (which, at 135% capacity, was so overcrowded that the district planned to erect partitions in study halls in order to accommodate accommodate its students) could have been transferred to the neighboring School 24 zone. The closing of School 1 also deprived the Runyon Heights community of its neighborhood school, a loss which was followed by a number of subsequent reassignments of Runyon Heights students during the 1970's. Moreover, the Board's decision preserved an all-white school experience for Homefield students, consistent with the Board's deliberately segregative attendance zone boundary changes of prior years.
The Board's decision to close School 1, however, must be viewed in context. The decision to close the school, prior to Brown, resulted in the elimination of the district's only predominately minority school and the desegregation of two virtually all-white schools. It also eliminated double-grade classes at all three schools, a result which would otherwise have involved considerable redistricting of other school zones. In addition, the reassignment of students to School 1 not only would have perpetuated the all-white character of Schools 5 and 24, but also would have done nothing to eliminate the all-white character of School 22. Since portions of both the School 22 and School 5 zones had previously been eliminated from School 1's attendance zone, it is difficult to find that the district's willingness to close School 1 and reassign its minority students to two virtually all-white schools, including School 5, was done to perpetuate racial imbalance at School 22. Finally, in terms of current segregative effect, the School 1 closing has increased racial balance at other elementary schools to which Runyon Heights students have been assigned -- Schools 5 and 24, when School 1 was closed; East Yonkers' School 31, after School 24 was closed in 1976; and East Yonkers' School 8, after School 31 was converted into an elementary magnet school in 1982. While the reassignment of Runyon Heights students in 1954, 1976 and 1982 has resulted in travel burdens more significant than those imposed on practically any other community in Yonkers, we do not believe that such burdens, particularly when imposed in a desegregative spirit, were impermissibly discriminatory either in purpose or in effect. See Parent Association of Andrew Jackson High School v. Ambach, supra, 598 F.2d at 714 n.6 (inconvenience of transportation for minorities permissible as part of voluntary desegregation effort); Higgins v. Board of Education of Grand Rapids, 508 F.2d 779, 793 (6th Cir. 1974). Indeed, it is not unreasonable to infer that School 1, built in 1872 and thus twelve years older than any other elementary school in operation at the time of its closing, would have been a prime candidate for closing as part of the district's 1976 School Closing plan and thus would have resulted in substantially the same student reassignments as actually occurred. In sum, we conclude that the Board's decision to close School 1 and its subsequent reassignment of Runyon Heights elementary school students do not, in light of the aforementioned circumstances, constitute intentionally segregative or discriminatory acts and do no have current segregative effects on the district's elementary schools.
b. 1976 School Closings
By the mid-1970's, the racial segregation of Yonkers public schools was already quite pronounced. In 1970, seven Southwest Yonkers elementary schools (3,6,12,18,19,25,King) had disproportionately (45% to 85%) minority enrollments and enrolled 74% of the minority elementary school students in the district, while all of East Yonkers' elementary schools were at least 95% white. By 1975, twelve Southwest Yonkers schools (3,6,7,10,12,18,19,25, King, Longfellow, Commerce, Yonkers High) had predominantly (over 50%) minority student enrollments, constituting 66% of the district's minority students; seventeen schools in East and Northwest Yonkers (8,11,14,15,16,17,21,22,28,29,30,32,34,Emerson,Twain,Whitman,Li ncoln) were at least 95% white. Similar racial imbalance was reflected in the school district's principal and teaching assignments as well; six of the seven black principals employed by the Board in 1975 worked in schools of at least 75% minority student enrollment.
At the same time, the demographic characteristics of Yonkers were undergoing similar segregative changes, including the City's addition of sixteen subsidized housing projects, all of them located in Southwest Yonkers.
The school integration policy of New York State education authorities also began to reflect considerably more flexibility in its approach to the question of school desegregation. As late as 1972, the state continued to adhere to its previously stated commitment to integrated education and its recognition of the inherent inequality of segregated schools. Recognizing the recently increasing "passions" surrounding the issue of busing, the Regents nevertheless deplored the "emotional misapprehensions" concerning the issue. The state concluded that (u]ntil residential and occupational integration becomes a reality in this nation -- the ultimate sign that skin color has lost its evil fetish --the judicious and reasonable use of motor vehicles may be in many instances the only instrument available to enable local communities to meet constitutional requirements and educational goals.
By 1974, however, the Regents stated that such transportation was appropriate where "demonstrably necessary to achieve integrated education" and that competing considerations of health and safety of children, particularly those of elementary school age, must also be recognized and respected. GX 909.5. In 1975, the state issued additional statements reaffirming and expanding upon its previous policies concerning transportation and integration. The Regents stated that, in its view, racial integration did not imply or require quantitative racial balance in all schools within a district but that serious efforts should nevertheless be made to bring about equal educational opportunity, including racial and ethnic integration. The Regents stated that "if a school district avails itself seriously and truly of available means to integrate its student population, then it should not be required to establish or maintain particular ratios of students from different ethnic origins." GX 909.6. One month later, the Regents expanded upon its previous statement. It noted the controversial nature of the use of busing as a means of achieving racial integration in schools, stating that [w]e also understand that busing has become a source of serious argument not alone because some of its opponents may be illiberal, or racist, but also because many responsible people, black and white, do not regard the massive transportation of pupils out of their neighborhoods for purposes of achieveing racial balance to be productive in the education of our children.
While it reaffirmed its commitment to the creation of integrated schools as an essential means of assuring equal opportunity for quality education, the Regents declared that such a goal was to be pursued by utilizing a number of methods, including, but not limited to, use of "judicious and reasonable transportation" of pupils. The Regents specifically noted that magnet schools, open enrollment or optional transfer plans, the closing of unneeded schools, and compensatory education programs were also appropriate methods of achieving this goal.
At the same time, the Board was confronted with increasing demands for desegregation of the Yonkers public schools. In response to written requests by the NAACP that the Board take immediate action to remedy the racial imbalance of the schools, GX 925.1,925.5, the Board created, in October 1975, a Task Force for Quality Education ("Task Force") for the purpose of examining and proposing methods for alleviating the problem of minority isolation and insuring quality education for Yonkers public schools students. GX 925.7; P-I 59-9; Tr. 9858-59 (Minervini). The Task Force, comprised of members of community and religious organizations and other Yonkers citizens, set as its primary goal the issuance of a report containing findings regarding and recommended solutions to, the issues of quality education and racial imbalance. The implementation of a remedial plan was tentatively scheduled to commence by September 1976.
The efforts of the Task Force, however, were quickly overshadowed. Instead, the 1975-76 school year was marked most prominently by the onset of the city's severe financial crisis. On November 13, 1975, a state of financial emergency in Yonkers was declared by New York State and an Emergency Financial Control Board ("EFCB") was established to oversee the fiscal affairs of the city and school district. In addition to implementing assorted city-imposed budgetary cutbacks totalling approximately $6 million for the 1975-76 school year, the Board was required by the EFCB to implement an additional $9.7 million in budget reductions (approximately half of the city's total budget deficit) by July 1, 1977. GX 777.
The mandated reduction of the school's budget was implemented in two stages: a $2.3 million reduction for 1975-76, and the remaining $7.4 million for 1976-77. These cutbacks were initiated in early 1976 by eliminating over 500 professional and non-professional staff positions in the district, including over 250 teaching positions. These cutbacks affected a wide array of educational programs, including the elimination of the district's pre-K program and the termination of fifteen reading teachers. In addition, the district eliminated over 100 school crossing guard positions, resulting in community protests and a number of accidents involving children walking to school. SB 838-844. In December 1976, the City Council passed a resolution requesting the Task Force to delay for six months the issuance of its final report. GX 141. The Task Force complied with this request.
The second stage of budget reductions took the form of a proposal to close seven schools and eliminate additional staff positions. As a result of these cutbacks, additional educational programs were curtailed or eliminated, including the More Effective Schools program at Schools 6 and 12, the Head Start program, and the English-as-a-Second Language bilingual instruction program. GX 777, 780, 783, 787.
In March 1976, Superintendent Robitaille submitted to the Board a detailed proposal recommending the closing of six elementary schools (3,4.7,12,15,24) and one middle school (Commerce). These Schools were chosen in accordance with a point system which was designed to weigh five factors -- physical characteristics, special areas (e.g., library, gym, cafeteria), internal characteristics (e.g., class size and utilization), cost of operation, and population and enrollment (including racial balance) -- in order to determine the most suitable schools for closing. The use of objective criteria was also designed to help the school administration to justify its decisions to close particular schools in anticipation of the strong community opposition which the proposal was likely to engender.
The decisions to close particular schools were in fact based on an evaluation of primarily race-neutral criteria. Most of the schools recommended for closing were severly underutilized, with several schools operating at roughly half capacity. Schools 3 and 4 were the oldest schools in the district, and, along with School 7, were in need of substantial renovation and rehabilitation. Most of the schools suffered from a variety of physical inadequacies, such as the lack of a cafeteria (School 12) or playground space (School 7). The closing of Commerce, the only middle school closed as part of the district's 1976 school closings, was also recommended primarily because of the substantial savings realizable from staff reductions and the schools's severe underutilization and racial imbalance (77% minority, versus 28% districtwide middle school average). GX 567. In addition, an effort was made to close schools in such a manner as would allow for the reassignment of students to schools within walking distance from their homes; the Board lacked sufficient funds to provide transportation for reassigned students.
In March 1976, the Board held a series of public hearings on the administration's proposal. Not surprisingly, the anticipated resistance to particular school closings was quite forcefully expressed by community members. Similar opposition was also brought to the Board's atention attention in the form of numerous written protests and position papers from various community organizations and members. Opposition to the proposed closing of Schools 4 and 15, predominantly white (97% and 99%, respectively, in 1975-76) schools in East Yonkers, was particularly intense. This opposition was devoid of racial overtones; in fact, none of the contemplated reassignments of School 4 or School 15 students involved any significant degree of desegregation. Instead, the opposition to these school closings was based primarily on the loss of each community's neighborhood school and the resulting burdens involved in being reassigned to other surrounding schools in the East Yonkers area. Among the most frequently cited problems or budens burdens were traffic and parking difficulties at reassigned schools and safety concerns regarding children walking to their newly assigned school. Parents in the School 15 area were led by Mayor Angelo Martinelli in a group walk to demonstrate the travel burdens which would be imposed on School 15 students if the Board decided to close the school. The reassignment of School 4 students to Schools 14,17 and 21 was also opposed because of the community's assertion that students would have to travel longer, more hazardous walking routes; complaints were made about thirty to forty-five minute travel times over hazardous and hilly terrain. Opposition was also expressed regarding the configuration of neighboring school buildings and other facility-related concerns. See SB 574-578.
Southwest Yonkers community members also opposed the closing of their neighborhood elementary schools. This opposition was based in part on the overcrowding which community members claimed would result at neighboring schools (the closing of Schools 3,7 and 12 involved the reassignment of 1,193 students; the closing of Schools 4 and 15 entailed the reassignment of 601 students). Concerns were also expressed by the School 3 PTA regarding the racial consequences of the School 3 closing and the resulting white flight which it claimed would result if white School 3 students wre reassigned to more heavily minority School 19; the PTA instead urged that School 19 be closed as the district had previously contemplated. GX 519. The Commerce PTA expressed concern that the closing of Commerce Middle School would dissipate the benefits of perceived educational improvements at the school, and asked that any redistricting of schools be done on an east-west basis in order to alleviate racial imbalance. GX 776.
Notwithstanding the community's opposition to the various school closings, on April 13, 1976 the Board approved the administration's school closing plan. GX 780. Community opposition, however, was by no means completely dissipated by the Board's decision. In particular, the strong community resistance to the two East Yonkers school closings intensified subsequent to the Board's approval of the administration's plan. Several Board members, including Anne Bocik, Robert Jacobson and Angelo Paradiso, were subjected to various forms of personal harassment (picketing and verbal threats) as a result of the Board's decision to close two East Yonkers elementary schools. Tr. 5066 (Jacobson); Tr. 5313-15 (Morris); SB 581. Mayor Martinelli commissioned a safety study for the purpose of demonstrating the hazards of reassigning School 4 and 15 students to neighboring schools. Tr. 7635-44 (Martinelli). A sit-in was conducted at the Board of Education building in protest of the School 15 closing. Tr. 11,268 (Guerney). The School 15 community, with the help of Seelig Lester (appointed to the Board in November 1976), opened an alternative "freedom school" in the School 15 area rather than send their children to Schools 26 and 28. The Citizens Committee for Quality Education proposed the creation of a magnet program at School 15 in an attempt to secure its reopening. GX 941. Mayor Martinelli, in a written appeal to New York State Commissioner of Education Ewald Nyquist, expressed his belief that the Board's decision to close seven schools was arbitrary and capricious and should be immediately reconsidered. GX 283. Martinelli and Lester also met with Nyquist to protest the closing of School 15. Tr. 7624 (Martinelli). Legal proceedings were instituted by parents of children formerly attending School 15 and were pursued all the way to the New York Court of Appeals in an unsuccessful effort to overturn the Board's decision. SB 272. Southwest Yonkers community members also voiced objections to the Board's decision and expressed concern that the Board might reconsider its closing of East Yonkers schools without similarly considering the reopening of Southwest Yonkers schools. SB 302. Notwithstanding this persistent and uniformly negative reaction to the Board's decision, the school closings were implemented, as recommended, beginning with the 1976-77 school year.
In numerical terms, the racial effects of the 1976 school closings and student reassignments may be summarized as follows:
S C H O O L S C L O S E D
Geograph. No. Studts
School Location W M % Minority
3 SW 178 369 67%
4 SE 3177 2%
7 SW 135 206 60%
12 SW 10295 97%
15 NE 275 2 0%
24 NW 20550 20%
Commerce SW 120 407 77%*1
A more detailed examination of the 1976 school closings reveals a mixture of desegregative and segregative consequences, all of which were foreseen by both the administration and the Board.
The closing of School 3 is a prime example of this mixed result. The closing of School 3 eliminated an increasingly racially identifiable school from Southwest Yonkers. The reassignment increased the racial enrollment of School 13 and, to a less favorable extent, School 27. School 27 was expected to change from 15% below the districtwide average to 13% above the districtwide average; it actually became a 52% minority school, 22% above the districtwide average. This change, however, was designed to be and was viewed by both Board officials and the Task Force as an integrative step. Tr. 9842 (Minervini); Tr. 12,926 (Dodson). On the other hand, a large number of minorities was reassigned to School 19, a physically inferior and heavily minority school.
The two school closings in East Yonkers were limited both in racial effect and desegregative intent. The closings eliminated two racially isolated (i.e., over 95% white) schools and provided an opportunity for a sizeable number of School 15 students to attend a somewhat more racially balanced facility. On the other hand, the closings left the vast majority of students in similarly racially imbalanced white schools. In addition, the elimination of Schools 4 and 15, both of which were underutilized facilities (80% and 70%, respectively), limited the opportunities which might otherwise have existed for future desegregation via the reassignment of minority students from educationally and physically inferior Southwest Yonkers schools.
The closing of elementary schools in Southwest Yonkers presents a similar amalgamation of positive and negative racial effects. The closing of School 7 eliminated a racially imbalanced minority school but did little to improve the racial balance of neighborhing neighboring schools to which School 7 students were reassigned. School 23, which formerly had a minority enrollment almost equal to the districtwide average, became an increasingly and eventually predominantly minority school. Nevertheless, the large number of white and minority students reassigned to School 23 were afforded an opportunity to attend what was at the time a significantly more racially balanced facility. The Board failed to reassign minority students from School 7 to School 17, a 2% minority school approximately one-and-a-quarter to one-and-a-half miles from the eastern portion of the School 7 zone, rather than to School 23, slightly over one-half mile away, even though the Board simultaneously reassigned 127 (124 white) former School 4 students over one mile to School 14. The capacity and projected enrollment figures relied upon by the school administration, however, would appear to justify the Board's failue failure to adopt this alternative. Even without such a change, School 17 was projected to be only thirty-two students below capacity, while School 23 was projected to be 198 students below capacity.
The closing of School 12, while salutary insofar as it eliminated a highly racially imbalanced school from Southwest Yonkers, was largely segregative in its ultimate impact. Both School 9 and King became more racially imbalanced, solidifying King's identifibiably minority image and tipping School 9, a previously racially balanced (32% minority) school, into predominately minority status as well. While fair number of black students were reassigned to School 9 and thus were provided with an opportunity to attend a more racially balanced school, a number of white students underwent the opposite experience as a consequence of being reassigned from School 9 to virtually all-white School 16. Thus, the elimination of one racially imbalanced school created or solidified the racial identifiability of three surrounding schools.
The School 24 closing was similar to the closing of School 12 in terms of its domino-like reassignment of students. The closing of this racially balanced school was of fairly negative racial consequence for School 24 students themselves, who were reassigned from a 20% minority to an 11% minority facility. It was also similar to other school closings in the distrtict in which racially balanced schools, including schools located in Central Yonkers which were thus particularly amenable to desegregation, were closed by the Board. See SCHOOLS IV.A.1 supra. On the other hand, a number of School 5 students from the Runyon Heights area, all but one of whom were minorities, were reassigned to School 31 in East Yonkers. Although this desegregative step deprived minority Runyon Heights students, for the second time, of their so-called neighborhood school experience by reassigning them to a school located across two major highways and roughly twice as far away as their former school, it was effectuated primarily in order to improve racial balance at School 31. Tr. 9842 (Minervini); Tr. 11,262 (Guerney).
The closing of Commerce Middle School was significantly more desegregative in its racial consequences than was initially planned. The closing of Commerce eliminated a heavily racially imbalanced and educationally inferior school from Southwest Yonkers. The Commerce closing originally involved the anticipated reassignment of roughly 40% of its minority students to Longfellow, a plan which would have been segregative both for the reassigned students and for the Longfellow facility itself. The actual effect of the Commerce closing, however, was significantly more desegregative than the original enrollment projections indicated: in particular, Emerson's minority enrollment increased by ninety-two students, and Burroughs' by 117; Longfellow's minority enrollment increased by only twenty-four. These figures are consistent with the testimony of Director of Secondary Education John Guzzo and Commerce principal Patricia DiChiaro that efforts were made to reduce much of the originally anticipated segregative effect of the Commerce closing, primarily by reassigning more minority students to predominantly white Emerson and Burroughs. In fact, a comparison of the district's reassignment planning document and the district's 1967-77 middle school attendance zone lines confirms that a significantly minority-populated portion of the originally proposed Longfellow zone, including Pine Street, Grove Street and Ravine Avenue, was eventually included in Emerson's attendance zone. Compare GX 567 with SB 627; see also GX 430. In addition, this comparison reveals that a minority-populated portion of the originally proposed Burroughs zone, including Grant Park, St. Joseph's Avenue, and the Burke Housing project, was also rezoned to Emerson. Thus, in reassigning Commerce students, the district succeeded in improving the racial balance at two previously heavily white middle schools -- an effort whose significance was recognized by Emerson administrative staff later that year. See P-I 34-17.
The Commerce closing was not without segregative consequences. Minority enrollment increased at Fermi, Hawthorne, and Longfellow, all of which became or remained predominantly minority schols schools. In addition, as a consequence of the Commerce closing, feeder patterns from Southwest Yonkers elementary schools to middle schools were divided in a fashion unknown in any other area of the district, with students from heavily minority School 6 and King attending four middle schools. In addition, the alternative of reassigning students to either Twain (1% minority) or Whitman (2% minority) in East Yonkers was rejected because of the travel distance which would have been involved, despite the request of the Commerce PTA that students be reassigned on an east-west basis, see GS 776, and the fact that some students reassigned to Hawthorne, Emerson and Burroughs would now be taking public transportation to school in any event. Tr. 12,653 (DiChiaro). Enrollment and capacity figures for 1976 and 1977 suggest that reassignments to Whitman in particular would have been feasible: Whitman, with a stated capacity ranging from 1,025 (Engineering Department) to 1,200 (1976 School Closing Plan), had an anticipated enrollment of 829 for 1976. GX 126. The reassignment of whites and minorities to Fermi and Hawthorne did result in a more racially integrated experience for those students. The reassignment of minorities to Fermi, however, was effectuated in spite of the opposition of Fermi parents, both white and minority, to the assignment of additional minority students to the school, opposi-tion opposition which was based on a concen concern that the school would become racially identifiable if additional minorities were assigned there. Tr. 2483-84 (Guzzo). Yet given the fact that significantly more minorities were assigned to Emerson than both Fermi and Longfellow, despite the geographic proximity and substantial underutilization of the latter two schools, it is difficult to find that the assignment of minorities to these predominantly minority schools was a deliberately segregative act. The evidence regarding the closing of Commerce is instead consistent with the testimony of Superintendent Robitaille and others that the 1976 school closings and student reassignments as whole constituted attempts to effectuate modest improvements in racial balance, with more comprehensive efforts at school desegregation to be implemented in subsequent years.
On balance, the record suggests that fiscal, rather than racial, considerations were clearly the predominant factors underlying the decisions to close particular schools. The point system used by Superintendent Robitaille and his staff illustrates the extent to which racial balance, while a factor in determining the most suitable schools for closing, was only one of many relevant factors which were considered by school officials. To be sure, desegregative measures were also implemented where possible to do so in a manner consistent with the Board's overall fiscal objectives. Indeed, both the testimony of school officials and evidence of the numerical and racial impact of the school closings and student reassignments reflect the limited yet observable desegregative steps taken by the Board. On balance, however, the inconsistent racial consequences of the 1976 school closings and student reassignments, as compared with the more consistently followed race-neutral reasons underlying those same decisions, illustrate the order of priorities which underlie the district's school closing decisions.
The Board's guarded receptivity to more desegregative alternatives to the 1976 School Closing plan in further evidence of its fiscal, rather than desegregative, priorities at the time. When confronted by school closing and reassignment alternatives encompassing a more aggressive pursuit of school desegregation, the Superintendent and his staff adhered to their initial recommendations, in some instances deliberately delaying school desegregation efforts for a future time. For example, the NAACP recommended to the Superintendent and Board that they consider closing the educationally troubled and underutilized School 6 (89% minority) and Longfellow Middle School (81% minority) and reassign their students in a desegregative manner. The NAACP also suggested the redrawing of high school attendance zone boundaries in order to alleviate increasing racial imbalance. Curtis Giddings, the Board's sole minority member, voted against the school closing plan primarily because of the plan's failure to make significant headway in eliminating racial imbalance in the district's schools. Giddings acknowledged, however, that the Board's primary concern was fiscal while his was racial, and that the plan did make some improvement in racial balance. SB 867. According to NAACP President Winston Ross and Superintendent Robitaille, the failure to adopt these proosals proposals also reflected both the perceived infeasibility of their present implementation and the Superintendent's intention to recommend that these schools be closed as part of a future desegregation plan. Tr. 3604-06 (Ross); Tr. 4616-18 (Robitaille). Similarly, the Board's response to these suggestions acknowledged that the school closing plan was "not primarily concerned with desegregation and integration, but rather a fiscal solution to a monetary problem" and that some of the suggested alterntives alternatives would hopefully "be forthcoming." P-I 58-54.
In sum, the effect of the 1976 school closings on the racial balance of Yonkers public schools were decidedly mixed: while some aspects were desegregative, the rejection of alternatives for avoiding increased racial imbalance and for furthering desegregation reflect the district's decision to temporarily create or perpetuate racial imbalance until a more comprehensive desegregation plan could be developed. Given the circumstances in which the school closing plan was formulated and the reasons for its implementation, the liability of the Board for creating and maintaining racial segregation in the schools more appropriately turns on the circumstances underlying its subsequent failure to rectify the known segregative consequences of the 1976 School Closing plan.
c. Longfellow Middle School
The racially segregated condition of Longfellow Middle School, like the vast majority of the district's other schools, has been perpetuated primarily because of segregative omissions rather than affirmative acts: the failure either to close the school and reassign its students elsewhere, or to reassign students from other schools to Longfellow. The failure to eliminate the racial segregation at Longfellow represents the culmination of a long history of increasing racial imbalance at the facility, decreasing justification for keeping the facility open, repeated proposals to close the facility, and the repeated rejection of such proposals as the school became increasingly underutilized and racially segregated. The circumstances surrounding the continued racial imbalance at Longfellow is thus illustrative of the racial imbalance at many of Southwest Yonkers' public schools. Because of the particularly extensive nature of Longfellow's racial imbalance, physicial physical inadequacy, and proposals for closing, however, we will discuss it separately in our findings.
Since 1930, the Longfellow Middle School has been located in the former School 20 elementary school building, a relatively small facility with no outdoor recreational space. Racial imbalance at Longfellow, located in the northeast section of the Southwest Yonkers area, has existed at least as far back as 1950, the year in which numerical evidence of estimated student enrollments is first available. In 1950, Longfellow's estimated minority enrollment was larger than any other junior high school in the district: the school was only 12% minority, but it also enrolled 41% of the district's junior high school minority students. SB 810.3. Since that time, the increasing racial imbalance at Longfellow has arisen partly because of the population growth in the Central West and Northwest Yonkers areas. This population growth led to the opening of several new junior high and middle schools and the repeated contraction of the Longfellow attendance zone. The effect of these school openings on Longfellow's student enrollment is reflected in the following table:
L O N G F E L L O W
School % Minority, (Increase) in Number % Minority,
Date Opening Before of Longfellow Students After
1954 Gorton 15% 72 0 16%
1963 Emerson 22% 228 108*5 16%
1969 Burroughs 43% 42 (16)*6 48%
1973 Commerce 79% 22 11 82%
Prior to 1963, the Longfellow attendance zone included areas of Central and Northwest Yonkers on both sides of the Saw Mill River Parkway. Until 1954, students attended both Longfellow and the Longfellow annex, located in Central Yonkers, east of the parkway. In 1954, the annex became part of the School 5 elementary/middle school facility and Gorton Junior High School was opened. From 1954 to 1963, Longfellow continued to draw students from the Runyon Heights and Homefield areas, both of which are east of the parkway and north of Tuckahoe Road. By 1960, Longfellow was 17% minority and, along with 17% minority Hawthorne, enrolled 71% of the district's middle school minority students.
The two most significant contractions of the Longfellow zone occurred when Emerson and Burroughs Junior High Schools were opened. These changes were either not significantly segregative in effect or not segregative in intent insofar as Longfellow was concerned. The 1963 redistricting of predominantly white Homefield residents from Longfellow to the newly opened Emerson facility, although responsive to residents' pressure for such a change, was based on race-neutral considerations. The construction of a new junior high school facility in Northwest Yonkers had been recommended in 1957 by the New York State Department of Education. GX 46, at 30. By 1960, the population growth in Northwest Yonkers prompted Superintendent Wynstra to recommend the acquisition of what is presently the Emerson site for the construction of a combined elementary/junior high school facility. SB 851. By 1963, Longfellow was operating at 107% to 135% capacity, whereas Emerson was operating at less than 60% capacity just after its opening.
During the remainder of the 1960's, Longfellow's total student enrollment remained relatively constant. SB 810.7; GX 64 (1963 - 540 students (estimated); 1967 - 530 students; 1969 -573 students). The significant increase in Longfellow's percentage minority student enrollment from 1963 to 1969 was caused primarily by the combination of two numerically inverse trends: increasing minority population in the Longfellow attendance area, which included the Mulford Gardens and Schlobohm subsidized housing projects, and the decline in white enrollment at Longfellow during this same period. From 1963 to 1967, Longfellow's white student enrollment declined from 455 to 331, while its minority student enrollment during this same period increased from eighty-five to 199. By 1967, Longfellow was 38% minority, the most heavily minority junior high school in the district. While some of this increase may be explained by demographic forces unrelated to conduct of the Board, it is reasonable to conclude that some portion of these changes was attributable to the educational inadequacies at the school, see, e.g., GX 605, as well as the increasing minority population concentration in that area.
The opening of Central Yonkers' Burroughs Junior High School in 1969 was the result of increased overcrowding in surrounding middle and K-8 elementary schools. The need for an additional junior high school facility in Central Yonkers due to the anticipated population growth in the area was recognized as early as 1960 by Superintendent Wynstra and the Board's Buildings and Sites Committee. SB 851. By 1969, the student enrollments at five surrounding schools with junior high students (5, 8, Whitman, Gorton, Lincoln) were in excess of maximum capacity; two of these schools (Schools 5 and 8) were combined elementary/middle schools. At that time, Longfellow enrolled 676 students, with a stated capacity ranging from 650 (Phase II) to 820 (Engineering Department).
The effect of the Burroughs opening on Longfellow was racially segregative: an appreciable number of whites residing west of the Saw Mill River Parkway were reassigned to Burroughs. Those students, though they resided within approximately one mile of Longfellow, were even closer to the new and physically superior Burroughs facility. In addition, fifty-one white and sixteen minority students were reassigned from Gorton to Longfellow, thus ameliorating the segregative effect of the aforementioned reassignment. Following the Burroughs opening, both Burroughs and Longfellow were operating at approximately the same level of capacity. These factors, and the absence of evidence indicating that racial factors were considered in opening Burroughs, support a finding that the reassignment of white students from Longfellow to Burroughs was not deliberately segregative in whole or in part.
The most significant segregative changes in Longfellow's enrollment occurred during the three years following Burroughs' opening. During this time, Longfellow's white student enrollment dropped by 147 students, over half of its 1969 white student enrollment. Since the Board made no attendance zone changes and the schools' minority enrollment remained relatively constant during this period (289 to 302 minority students), it is reasonable to infer that many white students either relocated or enrolled in private junior high schools in the Longfellow area.
As noted earlier, at least some of this decline is reasonably attributable to Longfellow's recognized inadequacy as a junior high school facility and the increase in minority population in that area of the city. Indeed, by this time, discussions regarding the inadequacies of the Longfellow facility and the proposed closing of the school were evident. In 1967, the Longfellow PTA urged the Board to reassign Longfellow students to Emerson, a proposal prompted largely by the perceived inadequacies of Longfellow's indoor and outdoor facilities. GX 605. The Board's 1969 capital budget request included an allocation for the conversion of Longfellow into an elementary school. P-I 51-57. By around 1970, Board members were beginning to consider closing Longfellow based primarily on its increasing racial imbalance as well as the relative quality of educational opportunity at the school. Tr. 5440 (Siragusa). Superintendent Mitchell's plans for converting Longfellow contemplated the reas-signment reassignment of Longfellow Junior High School students to the recently opened Burroughs facility. P-I 51-64.
The closing of Longfellow was considered more seriously in 1972 as part of the district's consideration of a variety of proposals for reorganizing the district's secondary schools. See SCHOOLS IV.F.2 infra. Several proposals were considered for closing Longfellow and using the facility either for a variety of other educational uses (e.g., as an elementary school or alternative high school) or as a facility for adult programs, drug programs, or sheltered workshops. GX 760, at 44,945; 761, at 42,808; 762, at 42,825.
While the closing of the Longfellow facility was considered beneficial, the reassignment of its students to other schools was considered problematic. The proposal which appears to have received most serious consideration was to close Longfellow and Franklin Junior High Schools and reassign their students to the old Yonkers High School facility as soon as the new Yonkers High School facility was opened. GX 115, at 43; 761, at 42,808. Franklin, like Longfellow, had been repeatedly recognized to be a physically inadequate facility. The 1973 Reorganization Plan adopted by the Board, however, recommended only that Franklin be closed and its students reassigned to the old Yonkers High School, renamed Fermi Middle School. Although there is a dearth of direct evidence explaining why only Franklin was recommended for closing, it is reasonable to conclude that the desire to avoid opening Fermi as a racially identifiable middle school was a primary consideration. According to Board member Rosemarie Siragusa, the proposed reassignment of Longfellow students to Commerce (as part of the proposed opening of Commerce Middle School) was considered inadvisable for similar reasons. Tr. 5442-43. Second, similar concerns were expressed by white and minority Fermi parents three years later when the district proposed the closing of Commerce and the reassignment of some of its mostly minority students to Fermi. As an alternative to the proposed reassignment of Longfellow students to Fermi, Siragusa suggested to Superintendent Alioto and Board members that Longfellow students be reassigned to Twain Middle School, a recently opened 3% minority school in Southeast Yonkers. According to Siragusa, this proposal was rejected because of the long travel distances between the two schools and the perceived inability of Longfellow parents either to provide (through carpools) or to pay for the necessary transportation. Tr. 5442-45.
As a result, the Longfellow Middle School emerged virtually unaffected by the 1973 Reorganization Plan. The Commerce and Fermi Middle School openings had relatively little effect on Longfellow. Only thirty-three Longfellow students were reassigned to Commerce in 1974, a year after its opening. No students were reassigned to Fermi, which opened as a 41% minority middle school. By 1974, Longfellow was 76% minority, and had begun what was to become an uninterrupted decline in its student enrollment.
The Board's conduct since 1974 has consisted of a continued failure to implement desegregative proposals involving the Longfellow facility. As noted elsewhere in these findings, at least three specific proposals to close Longfellow were made in the mid to late 1970's. In 1976, the NAACP suggested that Longfellow be closed as part of the district's fiscally motivated school closing plan. In a letter to the Board, Yonkers NAACP President Winston Ross stated that the school's racial imbalance, age, and physical condition made Longfellow a desirable candidate for closing. GX 779. Ross also suggested that the elementary school portions of Emerson and Twain Middle Schools be closed to create additional room for the reassignment of Longfellow students. Id. Ross noted that the additional school closings would reduce racial imbalance and would provide additional financial resources for program enrichment and rehiring of specialized school staff. Id.
While the desirability of closing Longfellow was recognized by the school administration, the Board's response to Ross stated that the school closing plan was concerned primarily with fiscal, rather than desegregative, considerations and suggested that Ross' proposals would be given future consideration. P-I 58-54. Consistent with the Board's position, Superintendent Robitaille decided that, based on Longfellow's age, high racial imbalance and surrounding redevelopment in the community, the school's closing would be recommended as part of the administration's forthcoming desegregation plan. Tr. 4631 (Robitaille).
In its 1977 Phase II Reorganization Plan, the administration recommended that the Board close Longfellow and return the facility to the City. The plan also proposed the closing of Emerson Elementary School (School 34) and the conversion of the Emerson facility into a two-year middle school.
The Board's failure to close Longfellow as recommended in Phase II is, as will be discussed further (see SCHOOLS IV.F.3 infra), difficult to explain in race-neutral terms. The school's size, age, underutilization and racial imbalance, in addition to the sizeable financial savings to be gained from the closing of a middle school, made it a prime candidate for such action. The capacity of the district's other middle schools also made Longfellow's closing a feasible alternative and a desegregative one as well. In particular, Twain Middle School (2% minority) was operating below its stated capacity; in 1978-79, the school year following Phase II's rejection, Twain Middle School was operating from 245 (Phase II) to 390 (Engineering Department) students below capacity, and thus could have absorbed a substantial portion of Longfellow's 426 students. By 1980, the conversion of the district's middle schools from grades 6-8 to 7-8 left Twain with 673 middle school students, below half its full capacity. While Twain was certainly a considerable distance from the Longfellow attendance zone, such distances or other travel-related burdens did not prevent the district from simultaneously reassigning Burroughs students an even greater distance to Whitman, in Northeast Yonkers, in the aftermath of Phase II. Tr. 2522-24 (Guzzo). Some Twain students in the northwest portion of that school's attendance zone were also travelling a considerable distance (approximately two-and-a-half miles) to attend school. Financial considerations also would not have posed a significant problem, given the state's reimbursement policy with respect to transportation for purposes of desegregation and the fiscal savings to be generated by closing Longfellow.
In addition, the district made no efforts to consider the use of, or assist in arranging, privately-contracted transportation for Longfellow students, as it had done several times elsewhere in the district. Tr. 2521 (Guzzo). Instead, the Board kept the 89% minority school open, despite the recognized inadequacy of its facilities, its racial imbalance, and the increasing underutilization of the school.
The district also failed to adopt alternative measures for lessening racial imbalance at Longfellow, namely, reassigning former Burroughs students to the school. This proposal was suggested to the Board while the 1977 Phase II reorganization plan was still under consideration. Phase II recommended that Burroughs be converted into the new Saunders Trades and Technical High School facility and that Longfellow (as well as Fermi Middle School in Southwest Yonkers) be closed. GX 98, at 16-17. At an April 1978 Board meeting and in a May 1978 letter to Board President John Romano, the Longfellow PTA urged the Board to consider reassigning Burroughs students to Longfellow in an effort to promote greater racial balance at the school and thus prevent the closing of the school, as was recommended in Phase II. GX 679, 852. The letter stated that this proposal would enable the Board both to avoid closing the two remaining centrally located middle schools in the district (Burroughs and Longfellow) and to achieve desegregation on the middle school level without rsort resort to busing. GX 852. Indeed, both Longfellow and Fermi were located on the same side of the Saw Mill River Parkway as the westernmost portion of the Burroughs zone, just a fraction of the distance between this area and Whitman. Longfellow also was the very school to which students from this area had been assigned prior to the opening of Burroughs in 1969. In fact, students from the School 5 and former School 24 attendance areas had never before been assigned to either Emerson (in Northwest Yonkers) or Whitman (in Northeast Yonkers); since 1938, these students had historically attended Longfellow, Burroughs or the former School 5 Middle School.
With Phase II's proposal to close Longfellow and Fermi still pending, the Board voted in April 1978 to reassign Burroughs students to Emerson and Whitman Middle Schools. GX 679. Although one month later the Board unanimously expressed its disapproval of the Phase II plan, it adhered to its reassignment of Burroughs students because of the possibility that Longfellow would eventually be closed. As a result, Burroughs students were reassigned up to four miles to Whitman, prompting over 100 families from the predominantly white western portion of the former Burroughs zone to request assistance from the Board in securing privately contracted transportation to attend Whitman. GX 880; P-I 69-47.
Although the closing of Longfellow was still a subject of some discussion among school officials in 1978 and 1979, the Board continued to maintain the school in its severely underutilized and racially imbalanced condition. In May 1979, Director of Special Services Robert Dodson recommended to Superintendent Joan Raymond that the district close Longfellow and reassign its students to the nearby Fermi Middle School. Dodson noted that this proposal would eliminate the problem of Longfellow's racial imbalance and would be feasible from a capacity standpoint. GX 754. Although Dodson could not recall why this proposal was not adopted, he noted that he had heard discussions concerning the Justice Department's prelitigation investigation into this case and the resulting uncertainty which school officials harbored as to the future state of the schools. Tr. 13,212-14. It is also reasonable to infer that this particular reassignment would have been resisted, as it had in earlier years, because of the racial imbalance which would have resulted at Fermi, a 58% minority school which would have become 72% minority had Dodson's proposal been adopted. Consideration was apparently not given either to reassigning Longfellow students to schools in East Yonkers, or to reassigning former Burroughs students, who were now attending Whitman and Emerson, to either Longfellow or Fermi.
We recognize that the initial failure to reassign students to Longfellow or Fermi was caused primarily by the possibility that these two schools would be closed. We also recognize that the Longfellow facility's physical inadequacies made reassignments to the school a less than optimal prospect. It certainly cannot be suggested, however, that a school district can credibily justify its refusal to close an underutilized, heavily minority school based on the transportation burdens involved in reassigning its students, yet allow it to simultaneously reassign nearby white students to a newer, physically superior school over four miles away because of the possibility, never implemented, that the predominately minority schools would eventually be closed. Cf. NAACP v. Lansing Board of Education, 429 F. Supp. 583, 603-04 (W.D.Mich. 1976), aff'd, 559 F.2d 1042 (6th Cir.), cert. denied, 434 U.S. 997, 54 L. Ed. 2d 491, 98 S. Ct. 635 (1977). The racial imbalance and severe underutilization of Longfellow and Fermi, as well as fiscal and facility-related considerations, made either the closing of Longfellow and/or Fermi or reassignments to Longfellow and/or Fermi superior, less segregative alternatives to the one consistently adhered to by the Board.
As of 1980, Longfellow was 94% minority, by far the district's most segregated middle school. The school was operating at 31% (Engineering Department) to 40% (Phase II) capacity, also well below any other school in the district. The school remained open despite its physical and educational inadequacies, the costliness of maintaining it in its underutilized state, and the foreseeable decline in its enrollment, see GX 98, at 2-8 -- the very factors which compelled the district to close seven schools in 1976. Although the groundwork for Longfellow's racial imbalance was laid before the Board played any significant deliberately segregative role with respect to the school, the Board's conduct during the 1970's served to maintain the school's increasing racial imbalance. While neutral reasons predominated in the Board's failure to close the school in earlier years, by the late 1970's racial considerations played an increasing role in both the proposals to close the school and the failure to adopt these proposals. Based on the above, we find that the continued operation of Longfellow as a racially segregated and severely underutilized middle school was not only a foreseeable consequence of the Board's inaction but was in part the result of the Board's general unwillingness to implement desegregative measures in the Yonkers public schools. See Berry v. Benton Harbor, supra, 442 F. Supp. at 1308-10 (discussing failure to remedy segregation at junior high schools).
4. Attendance Zone Changes
a. Schools 16 and 25
Schools 16 and 25 are located less than one mile apart in the Northwest Yonkers area, just east of the Hudson River. School 16 is located on North Broadway and School 25 is located to the southwest of Warburton Avenue. The two schools are separated by a steep hill which, according to geological surveys and personal observation, is one of the steepest hills in Yonkers. The hill slopes from North Broadway downward to Warburton Avenue and the river. School officials testified that during the winter they must travel on fairly circuitous routes in order to avoid the hill separating the two schools. Tr. 4544-45 (Radko); Tr. 11,176-77 (Guerney).
Prior to 1953, some students attending School 25 resided in an area as far east of the school as North Broadway, at the top of the hill. At that time, few minorities lived in the School 16 or 25 areas; the estimated elementary school enrollments in 1950 were 0% minority at School 16, and 4% (thirteen students) minority at School 25. SB 810.2. Starting in the mid-1950's, an increase in the minority population residing in the School 25 area occurred. This increase was occasioned by the first boundary change, in 1953, between Schools 25 (4% minority) and 16 (0% minority); thirty-five white students were reassigned from School 25 to School 16. While this boundary change was segregative in its impact, the rezoned area was located at or near the top of the hill separating Schools 25 and 16 and thus made the trip to school for the affected students more manageable from a topographical standpoint. Such considerations were in fact expressly noted by the Board less than one year later with respect to the middle school assignment of School 25 students. GX 717. The Board also had just redrawn the School 6 attendance zone boundaries so as to include whites in the School 25 area, and percentage minority enrollments at School 16 (513 whites) and 25 (392 whites, seventeen minorities) were virtually identical at the time of the boundary change.
Minority enrollment at School 25 steadily increased over the next fifteen years, reaching 41% in 1967; School 16 remained almost totally (99%) white during this period of time. During the 1960's, three boundary changes occurred between the two schools. The effects of these changes are as follows:
BEFORE CHANGE from 25 to 16 AFTER CHANGE
% Minority, % Minority, % Minority, % Minority,
Year School 25 School 16 W M School 25 School 16
1963 14%na 0%na 9 0 14% 0%
1964 14%*7 0%na 23 9 13% 2%
1968 42% 1% 6 0 43% 1%
For a number of reasons, we find that these changes constitute a pattern of segregative acts by the Board sufficient to give rise to a finding of segregative intent.
The 1963 change is the most troubling. The rezoned area (Arthur Place) is located closer to Warburton Avenue (and School 25) than to North Broadway (and School 16). Thus, students living in this area had to travel even farther up and down the hill between the two schools as a result of the boundary change. While the route separating Arthur Place from Warburton Avenue is a steep and winding one, the longer route separting Arthur Place and North Broadway is also difficult to negotiate. And while the disparity in racial enrollments at the two schools was fairly small according to Dr. Armor's estimates, it is reasonable to conclude, based on the fact that these estimates were based on actual enrollment data of earlier years and that West Yonkers was undergoing a period of significant demographic change at the time, that the actual disparity was appreciably greater.
As for the 1964 boundary change, several factors persuade us that racial factors may not have been a factor in this particular change. First, the inclusion of several minorities in this change actually had a desegregative effect on both Schools 16 and 25.
Second, contemporaneous evidence regarding the change demonstrates that safety and convenience factors were actually considered by school officials in implementing this change. SB 638. In this particular instance, an examination of topographical and attendance zone maps does not undermine the legitimacy of these factors: the rezoned area is located closer to North Broadway than to Warburton Avenue. Third, while the district failed to reassign these students to Schools 9 (12% minority in 1961-62) or 6 (45% minority), both of which were considerably closer than School 16, capacity and school enrollment data suggests that overcrowding at Schools 6 and 9 (a condition which was soon to lead to the planning and construction of the King Intermediate School) made such a reassignment infeasible.
The 1968 boundary change involved six students from an area located closer to both located closer to both Warburton Avenue and School 25 than to North Broadway and School 16. The boundary change thus required the affected students to travel a hilly and more lengthy route to School 16. The area in question also was near an area subsequently characterized by community opposition to the assignment of its students in a desegregative fashion, see SCHOOLS IV.A.2.a supra, SCHOOLS V.E.1 infra, suggesting that such opposition played a role in the 1968 School 16/25 boundary change. By this time, the racial imbalance between the two schools was substantial, making the segregative impact of the boundary change clearly foreseeable.
Additional evidence persuades us that the topographical considerations noted above cannot fully explain the segregative boundary changes involving Schools 25 and 16. Such considerations have often been overcome in implementing particular student assignments in Yonkers. For example, the closing of School 15 in 1976 resulted in the reassignment of students over hilly terrain to Schools 26 and 28; the closing of School 1 in 1954 resulted in students travelling up the steep hill to School 5; Japanese-American students living in the northernmost portion of the School 25 zone have been assigned to School 16. While neutral considerations justified the boundary changes and resulting travel burdens which students were forced to endure in each of these cases,
the frequent imposition of such travel burdens undermines the Board's argument that topographical considerations necessitated the School 16/25 boundary changes. The Board's contention is particuarly unpersuasive in light of its previous inclusion of the North Broadway area of the School 16 zone -- located at the top of the School 16/25 hill -- in School 25's attendance zone. In addition, the fact that School 25 students must travel over the same hilly terrain to attend either Emerson or Longfellow Middle School also is inconsistent with reliance on topographical considerations to justify the boundary changes between Schools 16 and 25. See Tr. 5476 (Siragusa).
We recognize that even school administrators widely known for their commitment to school desegregation have noted the topographical features of the School 25/16 area in considering whether to implement desegregative boundary changes between the two schools. Tr. 5414-15, 5475 (Siragusa) (discussion with Superintendent Mitchell); see also Tr. 11,034 (Jacobson). Yet a careful examination of the specific boundary changes which have been effectuated in the School 16/25 area, the racial impact of these changes, and the inconsistent or unpersuasive invocation of topographical considerations to explain these changes, convince this Court that the changes which occurred constituted a pattern of conduct designed to perpetuate the increasing racial imbalance between the two schools. We conclude that the evidence supports a finding that the racially imbalanced condition of Schools 25 and 16 has been caused in part by deliberately segregative conduct in the redrawing of attendance zone boundaries between these two schools.
B. Equal Educational Opportunity
The disparaties between schools in Southwest Yonkers and elsewhere in the Yonkers School District are not only racial, but educational as well. A substantial amount of evidence in this case has focused on both the inadequacies of Southwest Yonkers schools as educational facilities and the efforts of the Board to deal with these inadequacies. An examination of several of the most significant characteristics which are relevent relevant in determining the quality of a school's educational program firmly establishes some general conclusions which are relevant to plaintiffs' allegations of unlawful segregation and discrimination: namely, the existence of disparities in educational opportunities available at racially identifiable white and minority schools, the recognition by Board members and school officials of these disparities, the partly successful efforts of the Board and school officials to ameliorate the effects of some of these disparities, and the racially influenced failure of the Board to correct other known disparities.
The quality of education provided at any school, as well as the community's and school administration's perceptions of the school, is influenced largely by a number of key school-related attributes: physical characteristics, such as building and site size, age, playground space, and the general condition of the facility; teaching and administrative staff characteristics, including their level of experience, their expectations of student ability, and their rate of turnover, or movement in and out of a particular school; student-related characteristics, including student mobility or turnover rates, size of student enrollment and school overcrowding, and disciplinary problems among students; and educational programs or curriculum, including curricular offerings and programs for the advanced, the average, and the below-average student. Each of these categories will be discussed in turn.
1. Physical Characteristics
In general, Southwest Yonkers public schools bear all the marks of the typical urban school facility, while the East and Northwest Yonkers schools are distinctly more suburban in nature. In terms of building and site size, schools in Southwest Yonkers are, as a general matter, indisputably inferior. The five most heavily minority elementary schools, Schools 6, 10, 19, 25, and King, have an average site size of 1.83 acres (range: .93-2.52); the nine most heavily white elementary schools (at least 90% white) average 4.84 acres in site size (range: 1.33-9.53). The three predominantly minority middle schools, all located in Southwest Yonkers, have an average site size of 2.4 acres (range: .8-3.8); the two East Yonkers middle schools average 9.5 acres (range: 6.8-12.2). Yonkers and Gorton High Schools in West Yonkers are 8.0 and 6.38 acres, respectively; Lincoln and Roosevelt High Schools in East Yonkers are 23.41 and 12.64 acres, respectively. GX 644.
The physical disparities in the school buildings themselves were accurately summarized in a 1977 report to the district's school facilities committee. The report, prepared by Director of Elementary Education Joseph Guerney, noted that Southwest Yonkers elementary schools generally suffered from a lack of classroom space, limited instructional areas for educational specialists (e.g., music, art, reading), and inadequate cafeteria facilities. The report noted that these problems existed only "to a limited extent" in Northwest Yonkers schools and were "not apparent" in East Yonkers schools. GX 483. Similar disparities have existed, and to some extent continue to exist, at the secondary school level as well. Since 1930, Longfellow Middle School has been located in the former School 20 elementary school facility, a building which has long been recognized by school officials and parents as a physically inadequate middle school facility and has been repeatedly recommended for closing. GX 605; Tr. 12,868-69 (Dodson); SCHOOLS IV.A.3.c supra. Until 1974, Yonkers High School was located in the old Franklin Junior High (presently Fermi Middle School) facility; the physical inadequacies of this facility led parents to complain bitterly and even to request that the high school attendance zone boundaries be redrawn so that more equalized distribution of physical facilities and educational opportunities could be achieved. GX 493, 494, 619. Franklin Junior High School was located in the former School 2 elementary school facility, a building whose physical inadequacies led to its closing in 1974. Hawthorne Middle School used several storage closets as classrooms during the 1970's as a result of the school's physical limitations and high student enrollments. The School 10 facility was constructed in contemplation of its use as a K-3 primary school but has since been used as a K-6 elementary school.
In terms of age, the Yonkers public schools are relatively evenly distributed between East and West Yonkers. Most of Yonkers' public schools were built long before the presence of substantial numbers of minorities and prior to the development of subsidized housing in Southwest Yonkers. By 1930, the district had constructed Schools 1-25 and School 27 and approximately one-half of the presently utilized secondary school facilities. While Southwest Yonkers middle schools are substantially older than their East Yonkers counterparts, three of the four regular schools built since 1968 are located in the Southwest Yonkers area: King (1968), School 10 (1972), and Yonkers High School (1974). In addition, most of the district's oldest elementary schools in both East (Schools 4 and 15) and West Yonkers (Schools 3, 7, and 12) were closed in 1976. Even with equally old facilities, however, such as Southwest Yonkers' School 6 (opened in 1889) and East Yonkers' School 8 (opened in 1892), the physical condition and overall reputation of School 6 is generally considered by Board members to be inferior. Tr. 5037-38 (Jacobson); Weiner Dep. 412-14.
The most striking disparity in physical facilities is in the playground and recreational space at West and East Yonkers schools. Many of the district's newer East Yonkers schools, such as Schools 26, 28, 29, 30 and 32, all have sizable grass-covered play areas outside the school building. Several Southwest Yonkers elementary schools, on the other hand, have little or no playground space; instead, they generally contain small, cement- covered play areas in back of the school. While some of these inadequacies, such as the lack of play space at Schools 7 and 12, were eliminated in 1976 as part of the district's school closings, substantial disparities still remain, particularly at School 6, see Tr. 4610 (Robitaille), GX 475, 476, School 10, which is both surrounded by the Riverview subsidized housing project and has inadequate indoor recreational space as well, Tr. 4992 (Jacobson); Tr. 11,642-43 (Leahy), and School 19, where most of the available play area is used for parking. Tr. 13,471 (Steinberg). Longfellow and Fermi Middle Schools in Southwest Yonkers have no outdoor recreational facilities, and until 1974 Yonkers High School (then located in the Fermi facility) suffered from a similar inadequacy. Even among schools with no play space of their own, such as King (Southwest) and School 22 (Northwest), disparities exist with respect to the nearby available recreational space.
The impact of these disparities is significant. School officials recognized that adequate recreational facilities were not only important to a student's physical development but were an important ingredient in enabling students to better benefit from the instructional aspects of the educational process as well. Tr. 4610 (Robitaille). School principles testified that inadequate recreational facilities were likely to result in increased disciplinary problems at the school. See Tr. 4713-14 (Jamieson); Tr. 12,773 (Marra).
The importance of a school's physical condition to the quality of educational experiences available at the school, as well as to the students' and community's perceptions of the quality of these experiences, has been recognized by school officials both within and outside the Yonkers school system. A 1957 survey of the Yonkers Public Schools recognized that the inadequacies of a school's physical attributes and overall condition are difficult to overcome even with the leadership of competent and dedicated administrators and staff. GX 42, at 27. The study also noted the impact that such inadequacies had on students, specifically, that students perceive an indifference on the part of educational authorities as a result of poor conditions at their school. Id. at 39. This conclusion was shared by school officials as well. See GX 609.
While most of the Yonkers public schools have suffered at one time from various inadequacies in their physical condition, Southwest Yonkers schools have generally been more seriously affected in this respect. Elementary schools such as Schools 3, 6, 7, and 19 were and in some instances still are regarded as particularly inferior facilities. The various physical inadequacies at Schools 3 and 7 were recognized by various school officials, see GX 518, 524, 526, and led in part to their closing in 1976. GX 126, at 6-8. Other schools, such as Schools 6 and 19, have been repeatedly singled out as wholly inadequate facilities and have been repeatedly recommended for closing as a result. Tr. 4973 (Jacobson); Tr. 5424 (Siragusa); Tr. 5512-13 (Minervini); Tr. 11,205-07 (Guerney); GX 507. School 19's condition was recognized as particularly inadequate, but the district refrained from expending financial resources to improve the school's condition because of the anticipated, but never effectuated, closing of that facility. P-I 19-27; Schainker Dep. 249-50. The deficiencies in physical conditions at East Yonkers schools, on the other hand, were substantially less severe in nature. See, e.g., GX 454 (School 32); P-I 8-17 (School 8); Tr. 4754 (Jamieson) (comparing Schools 19 and 30).
The Board did make some attempts to eliminate some of these disparities; for example, the district closed Franklin and Commerce
Middle Schools, both of which had significant problems with resect to their overall physical condition and the adequacy of their physical plant. GX 559; Tr. 2472 (Guzzo); Tr. 12,645 (DiChiaro). In addition, the recent construction of King Elementary School and Yonkers High School resulted in the addition of two modern and well-equipped facilities to Southwest Yonkers. Tr. 12,901 (Dodson); SB 654. School 10's "school without walls" structure, designed specifically for an open education teaching philosophy, was considered unique and impressive from an internal structural point of view. SB 183. In addition, the fiscal limitations on the district's ability to improve or expand existing Southwest Yonkers facilities was not without impact on East Yonkers schools. See, e.g., SB 573 (difficulties with expansion of Roosevelt High School). Nevertheless, the record as a whole reflects the existence of more significant deficiencies in physical conditions at many of Southwest Yonkers' elementary and middle schools. These inadequacies, along with the physical disparities noted above, have resulted in inequalities in the educational opportunities available to the many minority students attending Southwest Yonkers schools. Alioto Dep. 47-48.
With respect to teaching and administrative staff, plaintiffs have attempted to demonstrate the denial of equal educational opportunity to students attending disproportionately and predominately minority schools in three ways: (1) the relative inexperience of teachers in such schools, as compared with teachers in identifiably white schools; (2) the high turnover of faculty and administrative staff in disproportionately minority schools; and (3) the low teacher expectations of student abilities in such schools.
Statistical and testimonial evidence submitted by both plaintiffs and the Board demonstrate that, in general, predominantly or disproportionately minority schools in Southwest Yonkers have been staffed by teachers with fewer years of experience than staff assigned to other schools in the district.
Plaintiffs submitted numerical evidence concerning teacher experience levels for the years 1960-76. GX 88-90, 93d. This analysis includes the experience levels for English, math, science, and social studies teachers. The analysis did not include reading or other teachers assigned to work in specially funded remedial programs, and did not include art, business, language, music, physical education, or shop teachers. Tr. 3374-75 (Sweeney). The exclusion of these teachers has its benefits and drawbacks: while it provides greater comparability in terms of the types of faculty employed systemwide, as opposed to teachers in particular remedial or other unevenly distributed programs, it consequently understates the size of a school's faculty and total years of experience of that faculty, and excludes teachers who were utilized on a full-time basis in some of these schools. To the extent that the trends highlighted in this analysis are corroborated by the testimony of school officials and by the Board's more inclusive for the years 1976-80, however, plaintiffs' statistical evidence concerning teacher experience levels is informative. In 1961-62, schools in East and Northwest Yonkers actually had lower overall teacher experience levels. Of the ten elementary schools with less than 1% minority students, four had teacher experience levels below the districtwide average of 11.31 years, including the three schools (26, 29, 32) with the lowest averages (below six years) in the district. Of the five schools with over 20% minority enrollments, three schools (6, 7, 19) and faculties with greater than the districtwide average in experience. A similar pattern existed at the secondary school level as well. GX 88.
By 1967-68, the trend had changed somewhat: the range in teacher experience at 40% (or more) minority elementary schools was 5.61-7.88 years; similarly, the range at less than 1% minority elementary schools was 5.50-8.00 years -- all below the 8.45 years districtwide average. Of the six schools with staffs averaging over ten years in experience, however, four schools (4, 16, 21, 22) were less than 4% minority (the other two were School 5 (11% minority) and School 27 (9% minority)). Experience levels at the secondary school level remained relatively even.
By 1971-72, the divergence in staff experience levels began to clearly materialize. Of the seven elementary schools with at least 40% minority enrollments, six of them were below the districtwide average (7.15 years) in teacher experience, ranging from 3.33 to 6.19 years. Of the thirteen elementary schools with under 5% minority enrollments, only two of them had below average teacher experience levels (School 21 - 5.31 years; School 14 - 6.25 years). Of the four schools with staffs averaging over ten years in experience, three schools (17, 30, 32) were virtually all-white schools in East Yonkers.
By 1973-74, this trend appeared at the high school level as well: Gorton (24% minority) and Yonkers (34% minority) had staffs averaging 5.89 and 9.22 years of experience, respectively, while Lincoln (3% minority) and Roosevelt (7% minority) had staffs averaging 11.12 and 12.15 years of experience, respectively. By 1975-76, the year in which the city's fiscal crisis resulted in substantial reductions in teaching staff, seven of the district's eight predominantly minority schools had average teacher experience levels below the 10.60 years districtwide average, including the four schools with the most inexperienced staffs in the district (Schools 6, 10, 19 and 25, ranging from 4.75-7.53 years). As in 1971-72, eleven of the district's thirteen most predominantly white (less than 5% minority) elementary schools had staffs with greater than average experience levels (ranging from 10.86-16.64 years). A similar disproportion existed at the high school level as well.
The Board's analysis, SB 807, reflects two significant differences in teacher experience levels. First, it includes all instructional staff, rather than teachers in the four categories examined by plaintiffs. Second, it reflects the termination of over 250 faculty members in 1976, a disproportionate number of whom were less experienced teachers assigned to Southwest Yonkers schools, Tr. 2569 (Guzzo); Tr. 4578-79 (Robitaille); GX 774, 775, and the resulting reassignment of more experienced teachers to these schools.
While the overall teacher experience levels increased as a result of the 1976 staff terminations, the disproportion in relative staff experience continued. In 1976-77, all seven of the district's predominantly minority elementary schools had staffs with below average experience levels, with four of them maintaining staffs with under ten years average teacher experience (versus 12.3 years districtwide average). All three Southwest Yonkers middle schools had staffs with less than average experience (range: 8.3-9.8 years), while three of the other four middle schools in the district had staffs with greater than average experience levels (range: 10.8-13.6 years). A similar pattern existed at the high school level as well.
By 1979-80, the relative imbalance in teacher experience levels, and resulting impact on educational opportunity, had been substantially reduced. Although the pattern at the elementary school level was similar to that of prior years -- again, all seven of the district's predominantly minority elementary schools had staffs with less than the districtwide average experience -- the range of average teacher experience at these schools had increased to 9.9-13.4 years (as to compared to 14.2 years districtwide average), a significant increase from the 4.75-7.53 years range of four years earlier. In addition, the imbalance in teacher experience was even smaller at the middle school level, and was essentially non-existent at the high school level. Thus, while imbalances persisted at lower grades, the marked increase in absolute experience levels at predominantly minority schools reduced the problems associated with the imbalance in experience levels of earlier years, when both imbalance and significantly greater inexperience (in absolute number of years) among teachers in Southwest Yonkers schools combined to create more significant disparities in teacher experience levels among the district's public schools.
The overall trend in teacher experience levels, a trend recognized by school officials and Board members, Tr. 4614-15 (Robitaille); Tr. 5039 (Jacobson); Alioto Dep. 48; Schainker Dep. 110; see also Tr. 4065 (Sobel), was caused by a variety of interrelated factors. The primary source of the disparity was the teacher transfer provisions of the district's collective bargaining agreements with the Yonkers Federation of Teacher, the teachers' union. Under these agreements, which have been in effect since 1969, teachers presently employed in the school district were afforded the right to apply for a staff vacancy, on a seniority basis, before the Board could hire additional staff from outside the district to fill the position. This provision has resulted in a general movement of more experienced teachers from West Yonkers to East Yonkers schools, a trend which was established almost immediately after the implementation of the seniority transfer provision in 1969. As both Board members and teachers themselves recognized, this west to east movement was caused primarily by the generally superior reputation of East Yonkers schools, a reputation created in part by smaller class sizes, superior physical conditions, and the "easier" teaching conditions in those schools. This phenomenon was also attributed to a concomitant "burnout" among West Yonkers teachers, caused largely by the general absence of the aforementioned conditions in Southwest Yonkers schools. As a result, staff openings were created in Southwest Yonkers schools and were generally filled by newly hired teachers with less experience than other teachers in the district.
Plaintiffs do not contend, and we do not find, that experienced teachers are necessarily or inherently more capable than new teachers. Indeed, in Southwest Yonkers schools, some principals preferred to have younger teachers on their staff because of their flexibility, receptively to change and educational innovation, and the "new blood" which these teachers brought to their respective schools. Tr. 11,636-38 (Leahy); Tr. 12,589 (DiChiaro); Tr. 13,472 (Steinberg). However, both Yonkers school officials and educational surveys performed for the school district recognized that, as a general matter, a balance of experienced and inexperienced teachers was desirable from an educational standpoint and the acknowledged lack of such a balance among the district's schools (elementary schools in particular) was a contributing factor to the inequality of educational opportunities among the district's schools. Tr. 4615 (Robitaille); Tr. 13,232 (Dodson); Alioto Dep. 47-48; GX 41, at 40; 587. While this lack of overall balance in teacher experience was ameliorated somewhat in recent years by the systemwide increase in teacher experience levels, the disparity in experience levels prior to that time served to deprive Southwest Yonkers students of a level of educational opportunity available elsewhere in the district. And as with the teacher assignment practices which led to the disproportionate presence of minority teachers in Southwest Yonkers schools, See SCHOOLS IV.E infra, the Board did little in the early to mid-1970's to alter the often-significant disparities in teacher experience levels.
Staff turnover, particularly in certain Southwest Yonkers schools, also detracted from the quality of educational experiences provided to students. The generally more demanding conditions at Southwest Yonkers schools and the resulting eastward movement of more experienced teachers in the district served to increase the frequency with which Southwest Yonkers staff members were replaced. Specific instances of unusually high staff turnover occurred at School 10, where fourteen of the seventeen teachers originally hired by the Board in 1972 had left the school after only two years of operation. This turnover had a particularly negative impact on the quality of educational instruction at the school because of the need for, and resulting lack of, staff members who were specially trained in School 10's open education teaching methods, a factor recognized by School 10's open education teaching methods, a factor recognized by School 10's first three principals, Tr. 4797-4803 (Jamieson); Tr. 11,633, 11,636-41 (Leahy); Tr. 13,320 (Cantor), and by the Board as well. Tr. 9838 (Minervini). The turnover among principals at School 10 was one of similarly negative effect; in five years, the school was led by three different principals, each with their own distinct educational approach. Frequent turnover among principals in Southwest Yonkers schools existed in Commerce Middle School (three principals during its three-year existence) and King Elementary School (three principals in its first four years) as well.
Again, not all staff turnover was without underlying educational benefit: the determination of some Southwest Yonkers school principals to implement measures designated to eliminate staff-related educational inadequacies at particular schools contributed to the staff turnover at these schools. Schainker Dep. 83-84; Tr. 4749-51 (Jamieson). Still, the existence of generally more frequent turnover at many of the district's disproportionately minority schools detracted from the educational opportunities available at these schools, a fact which was recognized by at least one Board member, Tr. 10,983 (Jacobson), and several school principals, Tr. 4713 (Jamieson); Tr. 11,657 (Leahy); Tr. 12,975-76, 13,155 (Dodson), and which was a source of concern among community members as well. GX 547 (School 25 PTA).
Teacher expectations epitomize the manner in which intangible and unquantifiable components of the educational process can impact upon student achievement and the educational atmosphere of a school. Schainker Dep. 246, 261; Tr. 4712-13 (Jamieson). While the record, particularly the documentary record of school principal evaluations and budget requests, reflects that many of Southwest Yonkers' school staff members were concerned with and dedicated to the educational welfare of minority students, some departures from this pattern existed and were recognized by several school officials and special task forces. A number of Southwest Yonkers schools were afflicted at various times by attitudes among administrative or instructional staff that minority students were less capable of educational achievement, a condition which obviously impacted negatively on student achievement. Assistant Superintendent of Schools Stanley Schainker testified that particular problems of this sort existed at Schools 6, 18, and King elementary schools, Commerce and Longfellow Middle Schools, and Yonkers High School. Schainker Dep. 60-65, 78-82, 113-16, 143-49, 251; GX 455. The low expectations or general lack of educational atmosphere at School 6 existed primarily during the late 1960's to early 1970's, and was recognized by parents and school officials. Tr. 4329 (Barrier); Tr. 4821 (Jamieson), Tr. 5043-46 (Jacobson). The problems which Schainker noted at Commerce and Yonkers were consistent with the findings of task force assigned to investigate educational conditions at the schools as well as the observations of community members. GX 559; Tr. 5240-42 (Morris).
Not all of the district's predominantly minority schools were similarly affected by discriminatory staff attitudes; the administrative and instructional staff at School 10 and Hawthorne Middle School, for example, were generally depicted as being generally devoid of similarly low educational expectations of their students. In addition, the more severe problems noted above, such as those at Schools 6 and 18, were generally rectified by school officials by removing those employees considered responsible for those conditions. Schainker Dep. 72, 74, 80-81. We are unable to conclude on the record before us that the discriminatory attitudes noted above were, in light of the district's recognition of and attempts to ameliorate this problem, evidence of the district's implementation of a policy of intentional discrimination. Nevertheless, the evidence concerning teacher expectations, including the district's need to take the remedial steps described above, demonstrates an awareness of the educational problems created by segregated schools and of the adverse consequences on minority students.
The quality of educational opportunities available to students in Yonkers public schools may also be measured in part by characteristics relating to the students themselves. One of the most troubling features of Southwest Yonkers schools is the unusually high turnover in their student populations. The high mobility of minority students in Southwest Yonkers was primarily the result of considerable demographic change in the area, caused in part by the City's urban renewal efforts and the concomitant displacement and relocation of Southwest Yonkers residents. Plaintiffs have submitted numerical evidence of districtwide student turnover for the 1975-78 period which unmistakably demonstrates the significantly higher student turnover in the district's predominantly minority schools. GX 815. This phenomenon was also the constant object of attention of principals and school officials in earlier years. School "Background Information" reports prepared by school principals highlight particularly severe instances of high student turnover: 500 students entering or leaving School 19 in 1971-72, when its total student enrollment was 669 (GX 539; Tr. 12,716 (DeFino)); 140 students entering or leaving School 10 during its first year, when the school's total enrollment was 239 students (GX 506); 184 students entering or leaving School 3 in 1974 (GX 518). See also GX 526 (School 7); Tr. 13,246-47 (DeFino) (School 18); GX 601 (Franklin Middle School).
The impact of the high student turnover in Southwest Yonkers schools and the district's response to it are both troubling. It is difficult to overstate the disruptive effect of such turnover and the consequences for all students involved. Many school officials recognized the negative impact which the high degree of student turnover had on the educational process at Southwest Yonkers schools. Tr. 4762-64 (Jamieson); Tr. 5040, 10,925 (Jacobson); Tr. 13,269 (DeFino); Schainker Dep. 247-48. This phenomenon was particularly disruptive in Yonkers since much of the student turnover consisted of movement between schools within the city itself, rather than in and out of the district as a whole. Tr. 10,925 (Jacobson).
Although the demographic phenomenon of student turnover was largely beyond the school district's control, the Board did relatively little to alleviate the negative effects of student turnover. Until recently, attempts to achieve conformity among textbooks used in various elementary schools, particularily among geographically proximate Southwest Yonkers schools, were largely unsuccessful; such conformity was initiated in Southwest Yonkers schools only as late as 1978 or 1979. Tr. 4762 (Jamieson); Tr. 13,269 (DeFino); Weiner Dep. 149. In addition, while school officials encouraged relocating parents to keep their children in the school at which they began the school year, no attempts were made to more formally restrict the movement of students among schools even where transfers involved (as they often did) movement between neighboring schools, such as between Schools 3, 10, 18, 19, and King. Tr. 4762-63 (Jamieson); Tr. 13,241-42, 13,268-70 (DeFino). While these circumstances do not lead this Court to the conclusion that the Board's failure to adequately address the problem of student turnover was racially motivated, we have little doubt that its failure to do so, even where feasible, resulted in a significant impairment of the quality of education provided to students in predominantly minority Southwest Yonkers schools.
Many Southwest Yonkers secondary schools were also characterized by a disproportionately high number of student suspensions. School officials were concerned about the disproportionately high incidence of suspensions at a number of Southwest Yonkers secondary schools and the disproportionate number of minority student suspensions throughout the district's schools, and developed a disciplinary code in order to rectify this condition. GX 59-60; Tr. 13, 166-67 (Dodson). School officials recognized that certain schools, particularly Yonkers High School, suffered from an overemphasis on disciplinary, rather than instructional, aspects of the educational process, Tr. 4638 (Robitaille), and that disciplinary problems were in part the result of inadequacies in the educational programs at these schools. GX 604 (Hawthorne); Tr. 4727-28 (Jamieson) (Schools 6, 10, 19). A related problem during the early to mid-1970's involved the inappropriate length of disciplinary sanctions imposed at several Southwest Yonkers secondary schools, a problem which prompted protests by members of the black community and instructions by Superintendent Alioto to James Barrier, his community relations consultant, to ensure that disciplinary guidelines were adhered to by school principals. Tr. 4342-44 (Barrier); GX 559.
An additional characteristic of most Southwest Yonkers schools is their generally more crowded conditions. Particularly since the 1976 closing of three of Southwest Yonkers' twelve elementary schools and the simultaneous elimination of the More Effective Schools (MES) program in which smaller classes were provided, Southwest Yonkers public schools have been significantly closer to full capacity than their East Yonkers counterparts. By the mid-1970's, the City's segregative pattern of subsidized housing site selection and construction had resulted in the addition of several § 236 family housing projects in Southwest Yonkers, contributing to the steadily increasing minority student enrollment in the area. From 1970 to 1975, minority student enrollments in Southwest Yonkers elementary schools (3,6,7,9,12,18,19,23,King) increased from 2,699 to 2,927 students, despite the fact that all but one (School 19) of these schools changed from K-6 to K-5 during this period, and despite the fact that the decline in birth rates which occurred during the mid to late 1960's was beginning to have an impact on overall school enrollment. GX 126, at 2, 6. The increasing imbalance in school utilization was recognized by the Board's Task Force for Quality Education by and Superintendent Robitaille and his staff, and became one of the foundations for the administration's Phase II reorganization plan. See SCHOOLS IV.F.3 infra. As result of the Board's failure to adopt Phase II, this imbalance persisted, with notable segregative exceptions (School 6, Longfellow), up to the filing of this action.
4. Educational Programs and Resources
Considerable evidence has been introduced by both plaintiffs and the Board concerning the nature, extent, and quality of educational programs and curricular offerings available to students at Southwest Yonkers schools. Briefly stated, the Board has attempted to establish that the provision of federally and locally funded and Board-created special remedial programs at Southwest Yonkers schools is evidence both of the equality of educational opportunities in the district as well as the absence of intentionally created inequalities (to the extent that inequalities do exist). Plaintiffs have sought to establish that despite the additional resources provided by the Board, curricular inequalities nevertheless exist in Southwest Yonkers schools and that additional resources have failed to ameliorate the detrimental impact of the other inequalities in educational opportunities and resources provided by the Board.
Since the mid-1960's, the Board has annually received federal funds specifically designed for schools which have low achievement levels and are located in low-income areas. These federal programs provide eligible schools with monetary resources over and above the school's annual budgetary allotment, and have resulted in additional remediation and enrichment programs, additional staffing, and in some instances additional equipment and supplies, in predominantly minority Southwest Yonkers schools. Elementary schools have been the primary recipients of these additional resources.
During the 1960's, the primary federally funded remedial education program in Southwest Yonkers schools was Project Orbit. The purpose of Project Orbit was to provide students in eligible schools with additional remedial instruction in reading and math. Project Orbit provided eligible schools with reading and math labs, additional books and supplies, and additional staff to complement regular classroom instruction and to provide more individualized instruction to participating students. During the late 1960's, Project Orbit also provided funds for summer programs in reading and science for students in Project Orbit schools.
Project Orbit was replaced in the early 1970's by federally funded Title I programs. See 20 U.S.C. § 2701 et seq. Like Project Orbit, Title I funding resulted in additional reading and math programs and individualized instruction at schools with low-achieving, low-income students. At various times during the 1970's, Title I funds were used to establish a number of other educational programs geared toward students in Southwest Yonkers' predominately minority schools. SB 746. For example, a bilingual program for the district's hispanic students was provided at Schools 10, 18, and 19 and at Hawthorne Middle School (the district's most heavily hispanic middle school). Tr. 11,183-84 (Guerney).
A variety of other locally funded supplementary educational programs were established at Southwest Yonkers schools during the 1960's and 1970's. The More Effective Schools (MES) program, for example, provided students at Schools 6, 10, and 12 with an opportunity to receive more individualized supplementary instuction from additional staff, until the elimination of this program in 1976 as part of the school district's budget reductions. Tr. 10,981 (Jacobson); Schainker Dep. 110; SB 653. Programs for high-achieving students were also established at a number of Southwest Yonkers schools, for example, the High and Wide program at School 18 and the AIM (Alternatives for Instructionally Motivated) program at School 10. Tr. 11,191-92 (Guerney). During the late 1960's to mid 1970's, the district established a Home With Books reading program (later called Reading Improvement Service Everwhere, or RISE) in School 7 in which volunteers from the community worked with students in an effort to improve their reading skills. The program was highly regarded by Superintendent Mitchell and was eventually extended to eleven schools in the Southwest Yonkers area. Tr. 13,347-51 (Pistone); SB 89.
The infusion of additional resources into Title I schools was not a complete panacea for all the educational and curricular difficulties which existed in Southwest Yonkers schools. A number of elementary schools still suffered from inadequacies in the quality and extent of instructional materials which were available. Tr. 13,500 (Steinberg); P-I 19-33 (School 19); GX 475, 476 (School 6), GX 526 (School 7). While these inadequacies were not universal in nature -- King Elementary School, for example, was recognized as having a wealth of quality instructional materials and supplies (Tr. 12,721 (DeFino)) -- a review of the numerous budgetary requests and school descriptions in evidence reflects the generally more serious and frequent nature of these particular inadequacies at Southwest Yonkers schools. The open school educational program at School 10, though designed as an innovation in educational instruction which would improve the prospects for racial integration at the school, instead was beset with a number of difficulties, including the loss of its originally planned recreational space and the frequent turnover of its instructional and administrative staff, which detracted considerably from the quality of the educational opportunities available at the school. These difficulties were not only perceived by parents in the community, who resisted the potential reassignment of their children to School 10, but were recognized by school officials as well. Tr. 4620-26 (Robitaille); Tr. 4777-84, 4788-94 (Jamieson); Tr. 5007-08 (Jacobson). In addition, the remedial programs provided at Southwest Yonkers schools did little to alleviate the inequalities in school facilities, staff experience and turnover, and student mobility, all of which impacted on the quality of educational opportunities, including special remedial programs, available at these schools. The record supports the conclusion that the Board did not deliberately fail, for partly racial reasons, either to provide remedial or other special instructional programs or to fairly allocate its programmatic resources among the district's white and minority schools. Cf. Berry v. Benten Benton Harbor, supra, 442 F. Supp. at 1306. The record is also consistent, however, with the conclusion reached by Board members Jacobson and Siragusa, as well as Assistant Superintendent Schainker, that Southwest Yonkers schools were educationally inferior despite the additional programmatic resources that were infused into those facilities. Tr. 5035, 10,959-61 (Jacobson); Schainker Dep. 106-10; Siragusa Stip. § 3.
The additional resources provided by the Board at Title I schools also did not cure the educational program deficiencies at West Yonkers secondary schools. Commerce and Hawthorne Middle Schools both suffered during the early to mid-1970's from inadequacies in their reading programs, a problem which a 1972 New York State Department of Education study found to exist in a number of Southwest Yonkers schools, GX 499, at 43,700 (finding "serious unevenness" in quality of reading programs, with ineffective programs at inner-city schools), and prompted Superintendent Alioto to make the improvement of reading programs and reading achievement levels the educational priority of his superintendency. The Commerce reading program was considered the worst in the district partly because of teacher ineffectiveness, GX 564; Tr. 13,312 (Cantor), and led, along with other instructional and facility-related problems, to the creation of a special task force to investigate and develop solutions for the various educational problems at the school. GX 559, 561. While some modest instructional improvements (for example, a program for gifted students) were made during Commerce's last year in operation, the school was generally regarded by school officials as an educationally troubled school throughout its brief three-year existence. Hawthorne also suffered from teacher-related inadequacies in its reading program and a lack of advance subjects available at other middle schools, two problems which contributed to the school's poor image among school officials and community members alike. Tr. 13,501-04 (Steinberg); GX 601. Once again, school officials made an effort to implement corrective measures for educational problems similar to those which had existed at Commerce. Tr. 12,687-90 (DiChiaro); GX 604. Efforts were made to improve instructional and programmatic offerings at the school, for example, the Plus Program, a remedial reading and math instructional program; an honors foreign language program; a Regents algebra course for gifted children; and Target Success, a human relations program at the school. Tr. 12,621-23. These efforts have been followed by a notable improvement in the achievement levels at the school.
Similar disparities in educational programs have existed among the district's high schools as well. Roosevelt High School has long been considered a high school of high educational quality, with Lincoln High School in Southeast Yonkers also enjoying at one time a reputation as an academic "elite" school. Tr. 5061 (Jacobson); Tr. 10,991-92; Jungherr Dep. 8; Natella Dep. 63-64; Schainker Dep. 96-97. These reputations have developed not only as a result of the quality of the educational opportunities available at these schools but also as a consequence of the significant program inadequacies at the district's two West Yonkers high schools.
The educational problems afflicting Gorton High School, discussed elsewhere in these findings, see SCHOOLS IV.F.2 infra, stemmed in significant part from the inferiority of its non-academic, non-occupational "general" program. While the race-related disturbances of the late 1960's and early 1970's subsided by 1974 or 1975, both the causes and consequences of these disturbances have survived to a certain extent. GX 598. The district has made some modest efforts to improve the educational opportunities at the school: auto and industrial arts programs were developed as a result of the 1973 Reorganization Plan; a three-year (1973-76) National Humanities Foundation (NHF) grant expanded cultural opportunities and increased individualized instruction at the school, Tr. 13,532-35 (Richards); SB 822; and by 1978 Gorton offered the full range of Regents and advanced placement courses available at the district's East Yonkers high schools. See Stipulation of the Parties Concerning Course Listings at Roosevelt, Lincoln, Gorton, and Yonkers High Schools During 1978-1979 School Year. Nevertheless, the rejection of the NYU Report's more comprehensive reform proposals (proposals based in part on the inadequacy of Gorton's general program -- see SCHOOLS IV.F.2 infra) and the remaining inequality in some course offerings (particularly English and social studies electives), along with the previously discussed disparities in educationally related characteristics of the district's high schools, have resulted in the perpetuation of Gorton's comparatively less favorable status as an educational institution.
Yonkers High School has also suffered from similar inadequacies in its educational program. In the late 1960's, the inadequacy of the school's general program was protested by the Yonkers PTA and was recognized by school officials as well. GX 619, 645; Tr. 2445-46 (Guzzo). The school also suffered from a high rate of teacher absenteeism and what school officials characterized as general staff ineffectiveness. GX 621. These problems, combined with the continued use of the inadequate Linden Street facility pending the the long-awaited construction and completion of the new Yonkers High School building, resulted in students receiving a generally less adequate educational experience than was available at East Yonkers high schools.
In September 1973, ninth grade students from Hawthorne and Longfellow Middle Schools were reassigned to Yonkers High School in accordance with the district's 1973 grade reorganization, thus increasing the already substantial overcrowding at the school. Because of the overcrowding and the infeasibility of transferring students to the district's other similarly overcrowded high schools (Lincoln High School in Southeast Yonkers was approximately 263 to 365 students above the capacity figure used in the NYU Report), the new Yonkers High School was opened February 1974, prior to the completion of the building's construction. Tr. 12,899-901 (Dodson).
The high school's educational problems did not disappear after the opening of the new Yonkers High School facility. In addition to the school's curricular inadequacies, the district initially encountered significant administrative difficulties with the new but unusually large facility, leading to student disturbances both inside and outside the school. GX 624-626. Emphasis was placed on maintaining discipline, with a concomitant failure to develop adequate educational programs for students at the school. Alioto Dep. 110; Tr. 5240 (Morris). Even disciplinary order was somewhat lacking due in part to the reluctance of teachers to discipline male black students. Schainker Dep. 116-17, 252-53; Tr. 2457-58 (Guzzo); GX 637. Instructional and curricular inadequacies were recognized by several school officials as a significant problem contributing to the distruptive disruptive atmosphere at the school. See Alioto Dep. 50-51; Tr. 2460-61 (Guzzo); GX 627.
The curricular and administrative difficulties at Yonkers High School lead to the creation of a special task force in October 1974. After working for several weeks on a full-time basis at the school in an effort to address these problems, the task force concluded that the school suffered from significant inadequacies in its organizational structure, its teaching staff and guidance department, and its instructional program. GX 637. As a result of the task force's evaluation of the school's operations, a new organizational structure was created with overall administrative responsibilities delegated to a coordinating committee comprised of the school's principal and three members of the district's central administrative staff. GX 628. Dr. Edward Vollbrecht, Director of Secondary Education and a member of the coordinating committee, also acknowledged the need to address the curricular deficiencies at the school. GX 631 ("Major problem is in course offerings not administrative organization of school."). The aforementioned difficulties were followed by a significant decrease in Yonkers High School's white student enrollment and hence an increase in its percentage minority enrollment. GX 64; see also GX 624.
While the initial organizational difficulties associated with the opening of the new facility subsided, other educational and curricular inadequacies persisted throughout the 1970's. During the late 1970's, the school's principal, Joesph Joseph Farmer, repeatedly noted the student management problems at the school, including disciplinary and mobility-related problems and high teacher absenteeism, the latter of which led to the use of the library as a holding facility for otherwise unsupervised classes. In addition, Farmer recognized the continuing need to improve the curricular offerings at the school, including the expansion of occupational education alternatives for students who were either uninterested in or incapable of attending Saunders. GX 632, 634, 635; see also Tr. 4638 (Robitaille). By 1980, at which time the school had become predominantly minority in its student enrollment and continued to be disproportionately minority in its teaching staff, the school's program offerings had improved, with occupational educational and industrial arts courses substantially comparable to those available at other high schools in the district. Nevertheless, Yonkers High School's reputation in the community has remained one of educational inferiority as compared to the district's other high schools. Hicks Dep. 59; Tr. 5308 (Frauenfelder).
5. Integration and Educational Opportunity
The disparties in educational opportunities provided in Yonkers public schools have had two significant race-related consequences. First, the disparities in the quality of educational programs and facilities have combined with the school system's racial imbalance to reinforce the already existing residential segregation in the city. The link between the quality of education at particular schools in Yonkers and residential housing choices is well-established: this relationship was recognized by parents, GX 203, 276, and principals, GX 551, was testified to by realtors, Tr. 2744-49 (Downes); Tr. 11,773-74 (O'Keefe), and even affected the housing choice of the 1975 Acting Superintendent of Schools. Jungherr Dep. 8. Cf. Higgins v. Board of Education of Grand Rapids, supra, 508 F.2d at 788. Similarly, the link between the racial identifiability of a school and the residential segregation of the surrounding neighborhood has been recognized by both courts and City officials. See SCHOOLS V.A, V.E.1 infra. The relative inequality in educational opportunities available at Southwest Yonkers predominately minority schools has contributed to the identification of minority schools in Yonkers as educationally inferior schools, with the two characteristics becoming virtually inseparable. This confluence of racial identifiability and relative educational opportunity has served to reinforce the segregative demographic patterns which have evolved in the City.
Second, the equalization of educational opportunities and the alleviation of racial imbalance in Yonkers public schools were not unrelated goals. Rather, as racial imbalance worsened and educational disparities persisted, various school officials recognized that the elimination of the former was an important step in eliminating the latter. The value of racial integration was not based solely on the social and educational benefits to be derived from the physical juxtaposition of white and minority students, or the "melting pot" aspect of such integration, e.g., Tr. 4072 (Sobel); Tr. 5449-51 (Siragusa); GX 892 (1972 Operation Outreach report by Board health education employees noting existence of significant racial prejudice among students in all-white and all-black schools and absence of such prejudice at School 5 (14% minority), School 23 (17% minority), and School 24 (24% minority), three of the district's four most racially balanced elementary schools). Instead, the disparities in school facilities, student enrollments (as a percent of capacity), teacher experience levels and expectations, and secondary school curricular offerings were problems which were likely to persist absent some desegregative technique which would have helped to reduce or eliminate some or all of these disparities. Consistent with these race-related considerations, three school superintendents, the Board's Task Force for Quality Education, New York State education officials, and other Yonkers school officials concluded that the equalization of educational opportunities and the elimination of racial segregation in Yonkers public schools were interrelated goals. Tr. 2487 (Guzzo); Tr. 4065-73 (Sobel) ("had the schools been desegregated many of these conditions [disparities in physical facilities, staff experience, and curriculum completion, and lack of interracial contact] would have been alleviated"); Tr. 4325 (Barrier) (re Superintendent Alioto); Tr. 4671-77 (Robitaille); GX 123, at 2 (same) ("quality education for all children ... cannot be accomplished without integration"); Tr. 5203 (Morris) (re Superintendent Mitchell) (recalling statements by Superintendent Mitchell that Yonkers children could not be getting equal education as long as they were segregated); Tr. 5385-90 (Tobin); Tr. 5450-52 (Siragusa) ("[S]eparate and equal ... is [not] a possibility in our particular case. I am not talking about any place anywhere else."); Tr. 12,977-78 (Dodson). It is in this light that the Board's repeated failure to implement educational and desegregative school reorganization plans must be evaluated.
C. Vocational Education: Steering and Screening of Minority Students
Prior to 1974, the Yonkers School District operated two specialized high schools, the High School of Commerce and the Saunders Trades and Technical High School (Commerce was closed in 1974). Until 1980, Saunders was located in the Getty Square area in the heart of downtown Southwest Yonkers. Commerce was located several blocks north of Saunders, also in Southwest Yonkers. The enrollment at these schools was and is not limited by attendance zone boundaries but is districtwide; students from all over the city are permitted to attend the schools. Nevertheless, Saunders' geographic location has contributed to the fact that most of its students lived in West Yonkers. GX 645; P-I 45-156.
Saunders is generally regarded as a school for students who are interested in entering a particular trade or technical field. Although until recently the enrollment at Saunders was exclusively male, the school is currently open to members of both genders. The Saunders curriculum consists of a variety of vocational and technical course offerings, in addition to traditional academic subjects. Vocational, or industrial, courses include auto mechanics, carpentry, electricity, machine shop and printing; technical course offerings include architectural design and technical electricity. GX 680. The Saunders program is designed to prepare students for college education as well as provide them with skills which will enable them to move directly into the labor force upon graduation.
The High School of Commerce, whose student population was largely female, offered a variety of specialized commercial or business courses, such as bookkeeping, clerical practice, office machines, and secretarial practice, as well as courses in cosmetology, dressmaking, food trades and retailing.
During the 1930's tp 1050's, the reputation of Saunders and, to a lesser extent, Commerce, was unfavorable. Saunders was known as the "dumping ground" for students who were perceived to be generally less capable of performing in a normal academic program. Tr. 4965 (Jacobson); Alioto Dep. 36; Natella Dep. 10-11. A 1934 study of the Yonkers public schools by Teachers College concluded that Saunders was used as a school for academically retarded pupils who were assigned to junior high school industrial courses with the tacit understanding that they would attend Saunders. SB 12, at 235. This reputation was fairly well known by both students and school officials in Yonkers as a matter of general reputation and via complaints by black parents to school officials.
A number of plaintiffs' witnesses testified that, as black students in Yonkers during this period of time, they were encouraged by guidance counselors to enroll in the vocational programs at Saunders and Commerce. According to Dr. Henry Williams, Saunders was recommended based on its less academically demanding program and because it would make black students more readily employable, Tr. 2640-41 (Williams), an explanation which was given in support of attendance at Commerce as well. Tr. 3519-20 (Ross). In some instances, students were encouraged to attend Saunders or Commerce even though the student had expressed a preference for an academic high school program. Tr. 2675-79 (McRae); Tr. 3516-24 (Ross). A 1959 report by the Board's Advisory Board on Vocational Education also described a process of "[p]sychological bludgeoning" of students whereby they were told that they would be left back unless they agreed to transfer to one of the district's vocational schools. GX 663, at 5; see also Natella Dep. 10-11. The report also noted that hard-to-teach students would be "unloaded" at Commerce in a similar manner. Id. at 6. A number of students were able to avoid enrollment in an undesired vocational program only after their relatives intervened on their behalf. Tr. 2679-80 (McRae); Tr. 3521-24 (Ross).
Although racial enrollment data for Saunders and Commerce is not available for years prior to 1967, the testimony at trial suggests that the schools' minority enrollment was substantial. For example, Winston Ross recalled that during the 1950's a significant number of Runyon Heights students attended Saunders or Commerce rather than the virtually all-white Roosevelt High School in East Yonkers. Tr. 3667; see also Tr. 2683-84 (McRae). Several witnesses also testified that this "steering" process was experienced by them personally and by their fellow black classmates. Tr. 2639-43 (Williams); Tr. 2683-85, 2709-10 (McRae). Dr. Williams recalled that this persistent encouragement of Saunders' trade programs to black students was at variance with the advice given to academically undistinguished white students at that time. Tr. 2651-52, 2665-67.
One Board witness, Joseph Guerney (who is white), testified that he also was encouraged by a guidance counselor to attend Saunders because of his siblings' prior attendance at the school and his family's purported financial inability to send him to college. However, other white witnesses testified that, as white students attending school at or about this time, they either did not meet with school officials prior to entering academic high schol school programs or were not advised to attend the non-academic high schools for reasons of, among others, prior academic achievement or family tradition. Tr. 4442 (Radko); Tr. 4966 (Jacobson). Thus, even if "steering" of students to Saunders and Commerce was not exclusively based on a single, racial criteria, it appears from the record that black students were fairly frequently the subjects of such treatment and experienced a form of counselling not typically experienced by white students. No statistical data was introduced, and apparently is not available, concerning the number of students who were affected by this process or the extent of its disproportionate impact on blacks. However, the testimony of then-students of Yonkers public schools suggests that blacks were the most frequent recipients of such treatment.
A similar process of steering black students also occurred with respect to particular programs within individual high schools themselves. One practice involved advising or encouraging students to enroll in a high school's general, or social-civic, program, a program geared generally for non-college bound students, instead of the regular academic, or Regents, program. Again, although statistical information is not available, the testimony suggests that blacks were enrolled in greater numbers in the general, rather than the academic, program. Tr. 2622-33 (Mareno). Several witnesses recalled their experiences as black students being advised to enroll in the social-civic program at particular schools. Tr. 2595 (Mareno); Tr. 2641-43 (Williams); Tr. 4300-01 (Barrier); Peace, Jr. Stip. PP7-9. These students were either not advised of the alternative of enrolling in the academic program, Tr. 2597-98 (Mareno), or were encouraged to take the social-civic program despite stated preferences for the academic program. Tr. 2644-65 (Williams); Tr. 4300-01 (Barrier). In one instance, black students were forced to wait in the principal's office at Roosevelt for a number of days and were encouraged to attend Gorton High School before being allowed, with the help of parental intervention, to attend classes at Roosevelt. Tr. 2724 (Downes). Once again, black students often were permitted to enroll in the academic program only after the intervention of their parents on their behalf. Tr. 2645 (Williams); Tr. 4301 (Barrier). Peace, Jr. Stip. PP7-9. Black parents testified that their children encountered similar impediments as well. Hamilton Dep. 69-71.
Many of the aforementioned witnesses have gone on to achieve considerable success in their carrer endeavors. While this may, at first blush, indicate that their experiences as black students in the 1930's through 1950's were educationally inconsequential, a more persuasive inference is that their success was achieved in spite of, rather than because of, the aforementioned "steering" which they experienced as students in the Yonkers public schools. In any event, the extent of their individual achievements in no way ameliorates the discriminatory treatment to which they were subjected during this period of time.
The probative force of these practices, in terms of current segregative impact, is somewhat limited, particularly since Saunders' reputation as a "dumping ground" has been long discarded, and the High School of Commerce has since been closed. The "steering" of blacks into general and vocational programs is nevertheless relevant insofar as it is evidence of the early existence of a pattern of discretionary treatment to which minority students have been exposed over time in the Yonkers public schools.
The inferior reputation of Saunders and Commerce was fairly dramatically altered when, in 1958, the Board decided to establish entrance requirements for vocational programs at these schools. According to the standards eventually adopted by the Board in 1962, students were to be accepted into Saunders and Commerce up to the available capacity of the schools' facilities. In the event a particular program had more applicants than its available capacity would permit, students were to be selected based upon a ranking determined by the receiving school. This ranking was based on a student's grades, achievement and aptitude test scores (with particular emphasis on math and reading scores), and the recommendations of guidance counselors. Students who were unable to secure admission to Saunders at the ninth grade level, during which time Saunders students would participate in an exploratory program at the school, would be invited to reapply the following year.
The implementation of screening standards for Saunders and Commerce was not universally supported. Specifically, the Yonkers High School PTA expressed its concern to Superintendent Wynstra that former Saunders and Commerce students who failed to gain admission to these schools and would instead be attending Yonkers High School would be "discriminat[ed] against ... by sheer neglect" because of the lack of adequate programs at the school. GX 647. Wynstra assured concerned community members that adequate provisions would be made for such students. GX 653.
The Saunders admission process was essentially two-tiered. Initially, guidance counselors at the district's junior high schools would solicit students who were interested in the Saunders program by taking them on a tour of the Saunders facility. Applications were then made available to students interested in applying to any of Saunders' vocational programs. After applications were submitted by interested students, guidance counselors would gather the aforementioned academic and testing information concerning each applicant. The counselor would sometimes, though not always, include a personal recommendation for the applicant. The application did not specifically indicate the applicant's race, but included the applicant's name, address, junior high school and guidance counselor's personal recommendation.
The completed application was then forwarded to Saunders for a determination as to admittance. Saunders' guidance counselors made initial recommendations regarding admissions based on the aforementioned information and, in some rare instances, personal interviews. The principal of Saunders maintained authority to make the final decision as to admissions. Students were notified of the admission decision and, if rejected from the ninth year program, were permitted to reapply the following year.
At Saunders, admission decisions were generally made along the lines noted previously, i.e., an examination of program capacity, the number of applicants, and each student's academic qualifications and individual guidance counselor recommendations. There was also testimony that indicated that the admissions process was somewhat more flexible than it appeared on paper. Part of the evaluative process engaged in by school officials was an inquiry into an applicant's behavior. Specifically, junior high school guidance counselors were instructed that students who were considered disciplinary problems were inappropriate candidates for admission to Saunders. Tr. 13,389, 13,413-16 (Zaroff); Alioto Dep. 35; Schainker Dep. 32. In addition, some students were accepted on the basis of "special circumstances" or political influence; Angelo Paradiso, Saunders' principal from 1964 to 1973, would simply direct Saunders guidance counselors to admit such students in addition to those who had already been selected.
The objective criteria relied upon by guidance counselors at Saunders were less than well-suited to the task for which they were used. School officials relied upon a variety of standardized tests, such as the Differential Aptitude Test, the Stanford Achievement Test, and the Otis-Gamma IQ Test, which were found in 1972 and 1973 to be outdated or otherwise considered inappropriate as measuring devices of student ability. GX 517, 662. Although the use of some of these tests was discontinued in the late 1960's to early 1970's, at least one (the Stanford Achievement Test) was apparently still in use as late as the 1977-78 school year. GX 661. Notwithstanding the use of these objective screening standards, the academic capabilities of Saunders' students were by no means entirely consistent with the school's reputation as a superior educational institution. During the late 1970's, students at Saunders were recognized as suffering from serious deficiencies in both reading and math skills, a problem which was addressed by remedial instruction. Tr. 12,838-39 (Marra). And although the aforementioned screening criteria were invoked only when the number of applicants exceeded Saunders' program capacity limits, the school's favorable reputation made the admissions process a fairly competitive one. The evidence thus suggests that the criteria used for selecting applicants to Saunders were in fact relied upon in making admission decisions. GX 674 (approximately 60% of applicants accepted from 1971-73); Alioto Dep. 101-02.
The late 1960's and early 1970's were also marked by increasing dissatisfaction with the Saunders facility itself and a rapidly increasing enrollment at the now highly regarded school. The physical inadequacies of the school, by far the oldest and smallest high school in the district, had long been recognized by school officials. These inadequacies contributed to a 1968 proposal to close Saunders and Commerce and to construct a new facility for the district's occupational, vocational, and technical programs. GX 645, at 53-55, 165-67. In 1973, the district again considered proposals to close both Saunders and Commerce and to distribute their programs throughout the district's other high schools. GX 115. In March 1973, the Board decided to close Commerce and decentralize its occupational programs; on the other hand, it decided to maintain Saunders as a self-contained facility and to expand its occupational course offerings to include some of Commerce's technical programs. GX 114. By 1974, school and City officials were actively engaged in finding a suitable site for the location of a new Saunders facility.
The capacity of the Saunders facility was recognized as increasingly inadequate. The facility was considered capable of enrolling anywhere from 600 (NYU Report) to 875 (Engineering Department) students, or approximately one-half the capacity of Gorton, the district's smallest regular high school. Despite the increasing popularity of the Saunders program, no physical additions were made to the facility after 1964. GX 644; Tr. 13,408 (Zaroff). Superintendent Alioto recalled that in the early 1970's, the Saunders auditorium had been subdivided for use as additional classroom space. Alioto Dep. 101.
Saunders' limited capacity, however, did not prevent a steady increase in its student population. In 1969-70, Saunders' enrollment was 483; this figure increased steadily during the 1970's, reaching a maximum of 831 in 1975-76 and remaining above 800 students until just before the relocation of Saunders in 1980.
This increase in student enrollment during the early to mid 1970's was largely devoid of black students. While enrollment at Saunders increased by 155 students between 1971 and 1975, the number of black students rose by only two. GX 64. During this period, the disproportionately low number of blacks at Saunders became increasingly evident. In 1969-70, Saunders was 2.7% black (versus 9.1% districtwide high school average); in 1972-73, Saunders was 3.8% black (versus 11% average); by 1975-76, Saunders was 4.2% black (versus 16.1% average). This disproposition was even more noticable when compared to the geographically proximate West Yonkers high schools: in 1972-73, Gorton and Yonkers were 21.3% and 20.3% black, respectively; by 1975-76, the schools were 25.8% and 32% black, respectively.
In addition to the above screening process, two factors contributed to the disproportionately high number of whites and low number of blacks at Saunders. A large number (approximately 80%, according to Reginald Marra, principal of Saunders beginning in 1974) of Saunders' white students came from the Southwest Yonkers area, and approximately one-third came from parochial schools in that area. The return of these students to the public school system, as well as the enrollment of public school students at Saunders, was due not only to Saunders' favorable reputation but also to the undesirability of attending either Yonkers or Gorton High School, two West Yonkers high schools with considerably higher percentage minority enrollments than Saunders and perceived to be educationally inferior to the district's other high schools. Gorton was also experiencing race-related disturbances at that time, an additional factor leading to the increased enrollment of white Southwest Yonkers students in the Saunders program. GX 674.
Another reason for the low minority enrollment at Saunders related to the school's prior reputation in the community. According to Robert Dodson, school principal and administrator, and Herman Keith, Yonkers NAACP President and Advisory Council for Occupational Education
member, minority students were reluctant to enroll at Saunders because of the school's previous reputation as a dumping ground for minority students. Gr. 8522-23 (Keith); 13,008-09 (Dodson). This program was exacerbated by a lack (until recently) of affirmative recruitment efforts designed to attract more minority applicants to the school, and inadequacies in the procedures (again, until about 1977) for informing students of the status of their applications and for reminding rejected eighth grade applicants of the opportunity to reapply the following year. GX 665, at 40,560; P-I 75-25, at 39,199.
Saunders' identifiably white character was also evident in its faculty and administrative staff. Between 1968-69 and 1975-76, Saunders never had more than two minority faculty members and was consistently below the districtwide average minority faculty percentage. During these years, Gorton and Yonkers High Schools, the district's two West Yonkers high schools, consistently exceeded the districtwide average for minority faculty. For example, in 1974-75, at the height of Superintendent Alioto's minority faculty recruitment efforts, Gorton had ten minority faculty members (10.3% of its staff) and Yonkers and twenty-one (14.2%); Saunders had only two (3.6%). In each year during the 1969-76 period, Yonkers or Gorton (or both) had at least one minority principal or assistant principal; Saunders had no minority principal or assistance principal during this period of time.
School officials were aware of and concerned about the fact that Saunders, located in the most heavily minority area of the city, was becoming an increasingly white school. Superintendent Alioto recognized that the school's selection process "appeared to systematically exclude minority youngsters," Alioto Dep. 35, a conclusion reached by other school district officials as well. Schainker Dep. 32-36; Tr. 5511 (Minervini). The limited presence of minorities at Saunders was coupled with the recognized inadequacies of occupational programs at the district's regular high schools, a problem which the district slowly began to address subsequent to its rejection of the 1972 NYU Report's more far-reaching proposals.
The High School of Commerce, on the other hand, did not suffer from similar disproportionality in its minority student enrollment. Although the selection process at Commerce was governed by substantially similar admissions criteria, GX 655, 657, minority enrollment at Commerce was consistently higher than the districtwide average:
% Minority, % Minority
Year Commerce All High Schools
1967 12 9
1970 14 12
1973 19 16
Although evidence concerning the Commerce admissions process is scant, it is reasonable to infer from these figures that the Saunders admissions process was considerably more competitive and was influenced to a greater extent by the student behavior-related criteria described above.
During the early 1970's, limited efforts were made to increase the availability of occupational and vocational programs to minority students. In 1973, the Board voted to close the High School of Commerce and establish a limited number of occupational programs at other high schools in the district. Other, more comprehensive proposals, such as the NYU Report's recommendation to close Saunders and decentralize vocational instruction programs throughout the district's high schools, were rejected. In addition, simultaneous attempts were made to revise the admissions criteria for Saunders. In the early 1970's, Superintendent Alioto and Assistant Superintendent Schainker met with Angelo Paradiso, Saunders' principal, to discuss the lack of minorities at Saunders and the admissions procedures being used at the school. Paradiso refused to produce admissions information requested by Schainker and, according to Alioto, defended the admissions process as being primarily responsible for the increasingly favorable reputation of the school. Alioto Dep. 36; Schainker Dep. 32-33. No changes were made in the admissions procedures, and Paradiso ultimately resigned in 1973 in part because of this dispute with Superintendent Alioto. Reginald Marra, Saunders' principal from 1974 to 1983, adhered to the admission standards used in prior years. Tr. 12,784-85, 12,821-22 (Marra).
The controversy surrounding the disproportionately low minority enrollment at Saunders reached a head in the mid-1970's. In 1976, Bertram Wallace, Director of Occupational Education, sought detailed information on the admissions process at Saunders in an effort to determine whether vocational program opportunities could be expanded. In particular, Wallace was concerned with the expansion of such opportunities so as to include more minority students. Tr. 12,825-26 (Marra). Wallace's efforts coincided with the increasing concern of minority community members regarding the low number of minority students at the school. P-I 75-25, 75-27. Wallace was successful in obtaining substantially greater federal funding for vocational education programs than had been received previously by the school district. Alioto Dep. 146. According to Reginald Marra, however, no action was requested of or taken by him in response to Wallace's inquiries regarding minority student enrollment at Saunders. Tr. 12,825-26.
In 1977, the Advisory Council for Occupational Education appointed a committee to review admissions procedures at Saunders. The committee, comprised of Nicholas D'Angelo, a Saunders graduate and Chairman of the Advisory Council, Hector Ghimenti, executive director of the Yonkers Human Rights Commission, and Herman Keith, was given the task of reviewing Saunders' admissions procedures in part to insure that "selection be made in a fair, unbiased" manner. GX 665. The committee's report, id., after noting the increasingly competitive nature of the Saunders admissions process and describing the procedures used for selection, concluded that students were selected on the basis of "merit only" with particular emphasis on reading and math scores. The report stated that applicants for the ninth grade exploratory program were rejected largely because of space limitations but that most of the rejected applicants were accepted upon reapplying the following year. No findings were made regarding the disproportionately low number of minorities at Saunders; the only recommendation which specifially referred to minority students was that greater effort be made to increase reading and math scores, particularly at Fermi and Hawthorne, two middle schools with predominately minority student populations (56% and 53%, respectively, in 1976-77).
The Board's efforts to improve the district's vocational education program culminated in the long-recommended closing of the old Saunders facility in 1979 and the relocation of Saunders' vocational programs to the newer and larger Burroughs facility, located in Central Yonkers, in 1980. This decision resulted in increased capacity for vocational and occupational education programs and a concomitant increase in minority enrollment in these programs. In 1976, Saunders enrolled 777 students, thirty-eight (4.9%) of whom were black; in 1980, ninety-nine (10.8%) of Saunders' 917 students were black. This increase in minority enrollment also coincided with increased recruitment efforts by school officials, beginning in 1979, designed to encourage minority students to apply to the school. Tr. 12,749-50 (Marra).
As a result of the disproportionately low percentage of minority students at Saunders during the 1960's and 1970's, such students were enrolled in greater numbers in the district's remaining high schools. These high schools, however, were generally reluctant to assume the task of providing vocational program opportunities because of the availability of such programs at the district's vocational schools. While some expansion of vocational programs in the regular high schools did occur during the 1970's, the extent of this expansion was limited and far below that which had been previously recommended, most notably in a 1968 NYU study on Occupational Education for Youth in the City of Yonkers, GX 645, and in the 1972 NYU Report. GX 115. As a result, many students were enrolled in the so-called general program, which was neither academic nor occupational in nature. GX 645, at 17-18 (referring to general program as a "grey area" of education).
The inadequacies of the general program at Yonkers high schools have been discussed elsewhere in these findings. See SCHOOLS IV.B.4 supra. Of particular relevance here is the fact that these inadequacies have often been recognized in conjunction with recommendations to expand opportunities for students enrolled in high school general programs to receive instruction in vocational and occupational education. A 1968 study by the New York University School of Education and a 1969 Chicago-based educational consultant's Master Plan for Occupational Education both noted the failure of the general program to meet the educational needs of the non-academic pupil and the lack of adequate occupational or vocational instruction at the district's non-specialized high schools. GX 645, at 42-44; GX 646, at 30-31, 46-48. This problem was particularly evident at Gorton and Yonkers High Schools, which by 1971-72 enrolled 84% of the district's non-vocational high school minority students. Although large numbers of white students were affected by the deficiencies of the general program, the widespread nature of the program at the district's two disproportionately minority schools (Gorton, for example, was described as having 70% of its students in the general program; see GX 115, at 36), along with the apparent disproportion of minorities in the general program itself, Tr. 2445 (Guzzo), resulted in many of the district's high school minority students being deprived of academic and vocational education opportunities comparable to those provided elsewhere in the district. The inadequacies of the general program, and the disproportionate number of minority students in the two high schools most affected by these inadequacies, continued through the 1970's. Tr. 2447-54 (Guzzo); see SCHOOLS IV.B.4 supra.
The question of whether there has been unlawful discrimination in the operation of vocational programs in Yonkers public schools is a difficult one. Direct evidence of discriminatory intent is absent from the record: no evidence was presented which demonstrates that school officials established entrance requirements at Saunders in order to exclude minorities from the school; no evidence exists of any minority student being denied admission at Saunders in part because of their race. The disproportionate impact of the selection process was not as extreme as in other instances of Board conduct and was primarily felt by black students only. The use of somewhat similar admissions criteria at the former High School of Commerce was accompanied by disproportionately high numbers of minority students at the school. In addition, while the Saunders admissions criteria contained an element of subjectivity, the admissions process lacked more obvious prerequisites, such as regularly conducted interviews or special entrance examinations, which may have served either to discourage or to exclude minority students from applying or enrolling at the school. Cf. Arthur v. Nyquist, supra, 415 F. Supp. at 942-43.
Several factors, however, persuade us that a finding of unlawful segregation is warranted. The increase in the disproportionately low representation of blacks at Saunders mirrored the increasing competitive admissions process (and thus the heightened use of educationally less than precise criteria for admission) and the steadily increasing enrollment at the school. The increasingly competitive nature of the Saunders admissions process during the early 1970's was itself caused in part by the acknowledged inferiority of educational programs at West Yonkers high schools. This condition, which had a disproportionate impact on minorities, makes the Board's failure to address the exclusion of minorities from Saunders even more troublesome: the recognized inadequacies of the general program at Yonkers and Gorton should presumably have led to at least some efforts to provide equal educational opportunities for minority students by including them in the district's vocational education program at Saunders. The school district, though aware of the systematic exclusion of minorities which resulted from the Saunders admissions process, did relatively little until the late 1970's to eliminate the discriminatory impact of the methods by which students were chosen. Cf. Morgan v. Kerrigan, supra, 509 F.2d at 594; Arthur v. Nyquist, supra, 415 F. Supp. at 942-43. While some attempts were made in 1973 to address the issue of the disproportionately low number of minorities at Saunders, these efforts were ultimately unsuccessful and abandoned and resulted in no significant change in the admissions process. The school's limited capacity also does not adequately account for the district's ability to enroll steadily increasing numbers of students, few of whom were black, at the school. Finally, the direct evidence concerning the steering of minorities into inferior educational programs prior to Saunders' transformation into a reputable vocational school supports the inference that the disproportionately low number of blacks at Saunders was in part the result of the effects of this discriminatory treatment on the desire of black students to enroll at the school.
The disproportionate impact of the Saunders selection process has recently shown a significant decline. From 1977-78 to 1980-81, the minority enrollment has increased from approximately 10% to 15.7%; during this period, the districtwide high school minority enrollment remained relatively constant -- 30.1% in 1977-78, and 30.5% in 1980-81. Yet while the recent efforts to recruit minority students, as well as the expanded opportunities now available to all students by virtue of the relocation of the Saunders program to newer and larger facilities in 1980, have rendered the exclusion of minorities from vocational programs less likely or foreseeable, the recent nature of these developments does not preclude our finding of discriminatory intent. Cf. Arthur v. Nyquist, supra, 415 F. Supp. at 941, 943. On the contrary, in 1972, Saunders' black student enrollment was 3.8%, less than one-third of the district's 11% high school average black student enrollment; as recently as 1979, the black student enrollment at Saunders was 9.8%, substantially less than the 17.7% districtwide high school average and less than one-third of the 32% average at West Yonkers high schools. While the 1977 Advisory Council report found neither discrimination nor subjectivity in the Saunders screening process as it then existed, this finding does not outweigh the significance of school administrators' earlier recognition of the systematic exclusion of minorities from Saunders and the subsequent failure, until recently, to meaningfully address this condition in a way which would result in increased enrollment of minorities at Saunders. In sum, we conclude that the racially disproportionate consequences of the Saunders admissions process, the Board's failure to address this condition, and the other circumstances surrounding this disproportionality are sufficient to support a finding of intentionally created segregation of and discrimination against minorities as of the institution of this action.
D. Special Education
The history of the Yonkers school district's Special Education program is perhaps the most striking illustration of the fine line, running throughout the school desegregation portion of this case, between benign intentions and actions with unfortunate consequences, and similar actions which are also prompted by race-related factors or concerns.
Several types of Special Education classes have existed over the years for various classifications of mentally and physically handicapped children. These classes have included classes for the trainable mentally retarded (TMR); emotionally handicapped (EH); physically handicapped (PH); neurologically impaired (NI); and hearing, visual and language impaired. Tr. 4244 (Malanga); P-I 78-12. In addition, and of primary concern here, the district's Special Education program has included classes for the Educable Mentally Retarded (EMR), Emotionally Disturbed (ED), and Learning Disabled (LD).
Prior to the mid-1970's, the procedures for assigning students to Special Education classes were fairly ill-defined. See Schainker Dep. 10-11 (describing process as "fuzzy"). During this time period, the referral of a student for Special Education instruction originated from individual teachers operating without the aid of written guidelines. A student was referred initially to a school psychologist, who would perform an evaluation of the student. The results were then forwarded to the school principal, who would decide whether to refer the student to the district's Special Education screening committee, the Committee on the Handicapped ("COH"). After evaluating the recommended reference, the COH would decide whether the student should be enrolled in a Special Education class. If the student was assigned for Special Education instruction, the COH would designate a specific program classification for the student.
Special Education classes were assigned to schools in the district on a space-available basis, with such determinations being made in June of the preceding school year. The criterion of space availability resulted in the frequent movement of Special Education classes between schools from year to year and also led to the placement of such classes in non-standard classroom facilities (e.g., a sub-basement) within the schools themselves. Tr. 4243, 4246, 4252 (Malanga). As a result, Special Education students experienced frequent disruptions in school assignments unlike those experienced by other students in the district.
Space availability was and has been determined largely by school principals, who have frequently resisted the placement of Special Education classes in their buildings. Over the years, the stated reasons for this resistance have varied. Oftentimes, principals would indicate that they lacked the building capacity for Special Education classes, thus requiring school officials to find available space elsewhere. Tr. 4253 (Malanga). In other situations, the resistence has been more ill-defined and unrelated to any tangible impediments to the inclusion of Special Education programs: an unexplained but firm resistance to the incorporation of such programs, GX 693; an unwillingness to assume the burdens of another school's Special Education programs, GX 695, Tr. 4256-58 (Malanga); or the "inhospital climate" in a school, emanating from the resistance of teachers and parents to Special Education programs, GX 696. Robert Dodson, the school official responsible for directing the Special Education program in the mid to late 1970's, testified that, in his opinion, resistence to the placement of Special Education programs in particular schools was often pretextual and in fact represented race-related opposition to the incorporation of such programs. Tr. 13,028-29.
The 1960's were marked by an increasingly disproportionate number of minorities in Special Education programs.
In 1961, elementary school Special Education classes were 22% minoritiy, while the remaining elementary school enrollment was 10% minority. GX 56. By 1967-68, Special Education classes were 43% minority, as compared with a 14% districtwide minority student enrollment. As of 1971-72, the Special Education program was 40% minority, or double the 20% minority student enrollment districtwide.
The disproportionate number of minorities in Special Education programs was considered by school officials to be the result of discriminatory assumptions made and processes used by school district staff regarding the behavior of minority students. See Schainker Dep. 18-19; see also Alioto Dep. 117-18. School officials recalled that minority students exhibiting aggressive or "acting out" behavior often simply would be referred to the school's principal for placement in a Special Education class, a referral that would be recommended for disciplinary purposes. Tr. 5081 (Jacobson); Schainker Dep. 18. The Special Education program was perceived by school officials and community members as a "dumping ground" for blacks. Tr. 11,052, 11,081 (Jacobson); GX 690.
As a result of the district's referral process, two fairly distinct categories of Special Education students evolved, each being identifiable primarily by the enrolled students' race. Minorities were typically assigned to ED classes, while white students were assigned to EH, and later LD, classes. See Alioto Dep. 40; Tr. 4144, 4164 (Carman); Tr. 13,024, 13,161 (Dodson). By 1972, white students represented approximately 75% of all students in the LD program; the ED program, on the other hand, was virtually the precise opposite, with over 70% minorities. GX 689.
Another feature of the Special Education program was the frequent placement of disproportionately minority classes in out-of-district, predominantly white schools. GX 703, at 4. As far back as the 1950's, predominantly minority Special Education classes were placed in virtually all-white schools. Tr. 2408-10 (Guzzo) (Twain Junior High School). During the 1960's, the district's first ED classes were placed in School 15, a virtually all-white elementary school in Northeast Yonkers. Tr. 4243-45 (Malanga). In 1967-68, School 15 had six minorities (2%) in its regular program and four minorities (100%) in its ED class. By 1972-72, the school enrolled three minorities (1%) in the regular program and eleven minorities (69%) in its two Special Education classes (one ED (seven students) and one LD (nine students)). GX 64, 686. A similar situation existed at Schools 16 and 4 as well. In 1967-68, School 16 enrolled no blacks and two hispanics (0.4% minority), whereas its Special Education class had nine blacks (64%). By 1971-72, the disproportion, while considerably smaller, was still quite noticeable: eight regular program minorities (2%), as compared to ten Special Education minorities (39%) (at least thirteen of the school's twenty-six Special Education students were in ED classes). GX 64, 686. In School 4's TMR classes, there were four hispanics (1%) in the regular program in 1967-68, as compared to nineteen blacks and three hispanics (20%) in Special Education classes; by 1971-72, the school had five regular program hispanics (1% minority), as compared to twenty blacks and three hispanics (24%) in Special Education classes. Although the absolute number of students placed in ED classes was relatively small, the combined effect of the disproportionate number of minorities in such classes and the frequent placement of such classes in virtually all-white schools was striking: by 1972, forty-nine of the districts sixty-three elementary school ED students, approximately 75% of whom were minorities, attended six elementary schools (15, 16, 22, 28, 31, 32), four of which were located in East Yonkers and all of which had at least a 97% white student enrollment in regular programs. GX 64, 686, 689.
Other practices affecting Special Education students further earmarked them in a distinctly negative manner. Because school assignments were generally made without regard to a student's residence, Special Education students were often transported lengthy distance directly and even diagonally across the city. Such trips were often well over one hour in length and sometimes up to two hours long each way. GX 694, at 53,543; Tr. 4172 (Carman). These students, a disproportionate number of whom were minorities, arrived at their school earlier or later than other students and left school earlier than other students. In some instances, Special Education students entered their school through separate entrances to the building. Tr. 4245-46 (Malanga); Tr. 4292-93 (Hammer). Such students were kept in separate classrooms during the course of the school day; these classrooms were often located in secluded areas of the school such as sub-basements or otherwise empty floors. Tr. 4243-52 (Malanga). Special Education students generally ate lunch and took gym classes and recesses separately from other students and often did not participate in other school activities with other students.
To the limited extent that Special Education students did come into contact with other students in the school, this interaction was often negative in origin. For example, at 98% white School 15, a former student recalled that the predominantly minority Special Education students were used as examples of "poor, bad behavior." Tr. 4289 (Hammer).
All of the aforementioned practices had what can fairly be described as a severely stigmatizing impact which was recognized by other students in the school, by school officials, and by community members. Special Education students were perceived by other students to be "different ... and bad," Tr. 4294, 4296 (Hammer), students whom white children "were not supposed to have anything to do with in school" and who "had something wrong with them," Tr. 5196 (Morris), and who were called "retards," id. One principal testified that students were afraid to go to the bathroom or play in the playground because they feared the presence of ED students. Gold-Marks Dep. 40-41. Joan Malanga, a former Special Education Coordinator (1972-79) and teacher, testified that School 15 parents and community members protested the presence of her "niggers" in their school and sought to have them removed. Tr. 4248.
Even more disturbing is the degree to which the policy of assigning minority Special Education students to virtually all-white schools has contributed to stereotypical generalizations about all minorities, not just Special Education students themselves. Because disproportionately minority Special Education classes were often assigned to overwhelmingly white schools in which few other minority students were enrolled, the interaction of white students with minorities often consisted primarily of interaction with Special Education students. The often vivid testimony of parents, PTA members, and school officials clearly demonstrates the disciminatory generalizations which this practice engendered. PTA Council President and parent Susan Morris recalled her childrens' perception that "the terms 'nigger' and 'retards' were interchangeable," an impression which stemmed from the fact that their contact with blacks consisted basically of minority Special Education students in their school. Tr. 5196. Robert Dodson expressed his concern to other school officials that the placement of minority Special Education students in virtually all-white schools would have a negative impact on parents, teachers and students' perceptions of Southwest Yonkers students in general. Tr. 13,027. Dr. Gary Carman, the district's Special Education Director from 1972 to 1975, similarly concluded that where "the total experience of those youngsters in that east side school as related to black children were [Special Education] kids" --children who Dr. Carman believed "had to be viewed by other children as less worthy" -- then it would be "easy for me to believe that they would generalize that to all blacks." Tr. 4157. Several other witnesses testified to similar effect. See Tr. 5309-10 (Frauenfelder) (Council of PTA's President); Tr. 4427 (Butler) (School 22 PTA President); Tr. 5417 (Siragusa) (Council of PTA's President and Board member). The district's Special Education practices have thus had an impact beyond the particular minority students in the classes themselves. Indeed, an additional, likely consequence of the district's Special Education program practice --resistance to the desegregation of public schools -- has been recognized by school officials as well. For instance, at School 32, a 7% minority school in 1980 which had disproportionate numbers of minorities in its ED classes,
blacks enrolled in the school's regular program have had difficulty gaining acceptance in the school as a result of the district's placement of disproportionately minority Special Education classes at the school. Tr. 4840-41 (Jamieson).
By the early 1970's, the district's discriminatory treatment of minority Special Education students was recognized with increasing frequency and concern by school officials. At a 1971 meeting of the Yonkers Commission on Human Rights, Dr. Dorothy Morrison, until 1972 the Director of Special Education, acknowledged that students, a large number of whom were minorities, were frequently assigned to Special Education classes as a result of pressure from principals and teachers to remove these students from regular classes. GX 688. Superintendent Alioto and his staff also recognized the need to address the problem of disciminatory placement of minorities in Special Education programs, one characteristic of what he concluded was the worst Special Education program in the state. Alioto Dep. 38; see also Schainker Dep. 9-13.
In August 1972, the district hired Dr. Gary Carman, an individual with extensive training and background in special education, to direct the district's Special Education program. Dr. Carman observed that the Yonkers school district, like many other school districts around the country, was placing Special Education students in self-contained classrooms and that Special Education classes contained disproportionate numbers of minorities. He noted in particular the high representation of minorities in particular programs, such as ED classes, a phenomenon which he had observed in rural communities elsewhere. Nevertheless, Dr. Carman also testified that the Yonkers school district's Special Education program was the most inhumane he had ever seen. Tr. 4156. His conclusion, like Superintendent Alioto's, was based in part on the district's practice of assigning students to schools all over the district on a space-available basis, a practice which Dr. Carman recognized not only as lacking any particular educational justification but also as burdensome and stigmatizing to Special Education students. He also based his conclusion on the physical segregation, or failure to "mainstream," students in the schools to which they were assigned as well as the manner in which these students entered and departed from school. Tr. 4156. Dr. Carman testified that based on his experience both in New York and elsewhere, he "knew of no causes, medical causes, social causes, biological causes that could possibly account" for the disproportionate number of minorities in Yonkers' ED classes. Tr. 4144.
Although Dr. Carman indicated at trial that he found no evidence that school officials or teachers acted "with the intention of discriminating against" minorities in their operation of the Special Education program, Tr. 4224, he nevertheless recognized that racial factors played a significant role in Special Education program decisions. In a series of letters to various school officials in 1973 and 1974, Dr. Carman attributed the disproportionate minority enrollment in the district's Special Education ED classes to the "inherent racism" of white persons and "cultural differences" between minority children and the district's professional staff. He noted that prior to 1972, children were placed in ED classes in particular "because they were disrupting classroom environments, or experiencing school failure and were members of racial minorities," and that once they were so assigned, these students rarely were able either to return to regular classes or to graduate. GX 690, 691. Dr. Carman reaffirmed these findings when he recognized at trial that I believe that white people, and I include myself, view blacks and other minorities stereotypically and the amount of racism, I personally believe it exists in most of us. I also believe it exists in most blacks. I think that is what was operating when I looked at the overrepresentation of minority children in special education. I don't believe that the staff in the City of Yonkers said let's put this black kid in special education because he is black. I think they said let's put this kid in special education because he is disturbed, and they thought that in large part because of his black behavior.
We recognize the difficulty of the decisions which were required of school officials in their operation of the Special Education program. Placement decisions involved evaluations based primarily on a student's exhibited behaviorial tendencies and thus almost inevitably called for partly subjective determinations. Nevertheless, the evidence does not suggest that the Yonkers school district's Special Education program was simply another in a series of flawed Special Education programs then in existence. As noted previously, both Dr. Carman and other school officials acknowledged that the program was unusally discriminatory in its impact and that the evaluative process, even though a difficult one, was particularly prone to unwarranted racial assumptions. Asked whether black children were difficult to control in a regular classroom environment, Carman replied that this was the case "in Yonkers. I wouldn't say difficult by nature." Tr. 4225. In addition, some of these practices, such as the transportation of minority Special Education students to largely white schools on what essentially amounted to an intact basis, are not similarly explainable on such grounds. We recognize that discriminatory practices in this area, as elsewhere in the operation of the school system, were not simply the result of racial hatred or any ill-conceived desire to subject minority children to highly stigmatizing and inferior treatment. However, the practices and decisions governing the Special Education program, however innocently arrived at, were in part the product of racially-related criteria and judgments which cannot be dismissed as educationally or legally justifiable. In short, the record demonstrates that prior to the mid-1970's, the discriminatory consequences of the school district's Special Education program were the result of decisions and actions in which impermissible racial factors played a significant part.
The district's response to Dr. Carman's initial findings consisted of basic agreement with his evaluation of the Special Education program and a concerted effort towards improvement. In November 1972, school officials conducted a three-day workshop sponsored by the state's education department at which many of the aforementioned problems were discussed. GX 692. Soon thereafter, under Dr. Carman's leadership, the district began to implement a number of recommended changes in the operation of its Special Education program. Among the most significant changes which occurred was an alternation in the location of Special Education classes. As a result of the Board's adoption of Superintendent Alioto's 1973 school reorganization proposals, the school district was divided geographically into quadrants and Special Education students were assigned whenever possible to schools within their quadrant. GX 114, at 3; Tr. 4169-70 (Carman). Consequently, Special Education students began to experience a reduction in the distance and duration of their trip to school, and the stigmatizing effect of placing minority Special Education students in virtually all-white schools was substantially reduced.
Other changes in the operation of the Special Education program were made as well. Dr. Carman became chairman of the COH in order to give himself an opportunity to personally ensure that the decision to place minority children in Special Education classes was properly made. In addition, parental participation in the screening process was increased by making them voting members of the COH. Finally, in the fall of 1973, the district began to return Special Education students to regular classes. These students continued to receive Special Education assistance from a resource teacher, who typically would provide special instruction outside the regular classroom setting.
These changes produced fairly quick results. Although Dr. Carman was not asked to and had not conducted individual, case-by-case evaluations prior to making his recommendations for reform in order to determine the reasons for the disproportionate number of minorities in particular Special Education programs, in 1973 some ED students were returned to regular classes at his suggestion and the overwhelming majority of them remained in these classes. Tr. 4167. The number of students referred to ED classes declined from forty-two in 1972-73 to six in 1973-74. GX 691. In addition, available statistics suggest that the disproportionate number of minorities assigned to ED classes in predominantly white elementary schools also declined. For example, while the number of Special Education students in School 16 (2% minority) in 1971-72 was twenty-six,
ten of whom were minorities, in 1975-76 these numbers were twenty-eight and five, respectively. At School 32 (4% minority), the number of minorities in Special Education programs, including ED classes, decreased from fourteen out of thirty-five in 1971-72, to zero out of fourteen in 1975-76. By 1975-76, approximately 11% of the ED students in predominantly white elementary schools were minorities.
After Dr. Carman left the Yonkers School District in 1975, responsibility for the Special Education program was assumed by Director of Special Services Robert Dodson, a minority school administrator who had participated in the district's 1972 workshop but was not trained in special education, and Assistant Director for Special Education Joan Malanga. The next several years were marked by additional efforts in certain areas of the Special Education program and the perpetuation or reappearance of previously recognized problems with the program. Under Dodson, the district established within each school a School Pupil Review Team, or SPURT. These committees, consisting of professionals similar to those that comprised the COH, were designed to increase the referring school's role in determining whether to refer a student to a Special Education program, with the goal of reducing the number of referral determinations to be made by the COH. In addition, efforts were made to include Special Education students in extracurricular activities at their assigned schools, in keeping with Dr. Carman's efforts to mainstream such students into the schools' regular programs.
On the other hand, a number of other problems were left unaddressed, and previous patterns of disproportionality in the placement of minorities in ED classes and in virtually all-white schools reappeared. In 1976, the space availability criterion continued to be used for elementary and middle school referrals, a circumstance which Malanga noted was disruptive, burdensome and would not have been a problem had the affected students been assigned to regular, rather than Special Education, programs. GX 697. This policy also resulted in the increased incidence of assigning minority Special Education students to often-distant, predominantly white schools in which they represented a significant portion of the school's total minority student enrollment, a trend which was discernable both for Special Education students generally and ED students in particular. In 1975-76, only four elementary schools with less than 15% minority student enrollments had minority Special Education student enrollments comprising over 20% of the school's total minority student population; by 1980-81, there were nine such schools, seven of which had minority Special Education student enrollments comprising over 30% of the school's total minority student population. As for ED students, in 1975-76 approximately zero to five ED students at heavily white (less than 5% minority) elementary schools were minorities.
By 1979-80, aproximately twenty-seven to thirty-seven ED students at heavily white (less than 11% minority) schools were minorities. SB 812. Malanga recognized this phenomenon and its stigmatizing consequences at the time but testified that the school administration reacted with "indifference" and, in one instance, assigned an ED class to heavily white School 22 despite the school's previous inhospitable reception to, and inadequate facilities for, Special Education programs. Tr. 4262-63, 4279. In 1979-80, School 22 was 9% minority (twenty-two minorities), with seven minorities in its eleven-student ED program. SB 812.
The disproportionate referral of minority students to Special Education programs, particularly ED classes, eventually became the subject of investigations by state education officials and the United States Department of Education's Office of Civil Rights. Those investigations culminated in findings reaffirming that such disproportion did in fact exist and, according to the federal investigative findings, was "the result of methods of administration which subject[ed minority ED students] to discrimination." GX 699. Donald Batista subsequently assumed responsibility for directing the Special Education program and, under his direction, the district reevaluated many of the students then assigned to ED classes. Under Batista's direction and in response to the aforementioned governmental investigations, the district complied in September 1980 a revised procedural manual for the COH to use in operating the district's Special Education program. SB 466.
One month after the filing of this action, the United States Department of Education and the Board reached an agreement whereby the Board undertook to implement certain remedial measures relating to the operation of its Special Education program. According to the Department of Education, these procedures, if fully implemented, would ensure compliance with Title VI and the regulations thereunder. SB 479, 480.
The Board, in its trial brief, contends that its decision to place black Special Education students in predominantly white schools was preferable to the more segregative alternative of placing these students in predominantly minority schools in Southwest Yonkers. In its post-trial submissions, the Board argues further that its placement of disproportionately minority Special Education classes in East Yonkers schools were justified by greater space availability at these facilities and, in any event, cannot be considered racially segregative. In our view, the Board's contention unduly minimizes the severely stigmatizing consequences of its "integrative" approach; in similar circumstances, such actions have consistently been found to be discriminatory despite their facially "integrative" consequences. 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); Armstrong v. O'Connell, supra, 451 F. Supp. at 852; Berry v. Benton Harbor, supra, 442 F. Supp. at 1306. The continuation of this practice in the mid to late 1970's despite an awareness of this stigmatization and its effect on the community's perception of minority students substantially undermines any argument that the Board's integrative approach was designed for any benevolent or racially desegregative purpose, or was preferable to placing such students in predominantly minority, geographically more proximate schools. Moreover, the Board ignores the fact that desegregation of the shools to which Special Education students were assigned would have substantially avoided the stigmatizing effects of its Special Education school assignment policy. Even the retention of Special Education students at their predominantly minority neighborhood schools would have at least been consistent with the Board's regular assignment practices and would have also avoided the stigmatizing and burdensome effects of its conduct. Indeed, to the extent the district's Special Education program assignment policy contributed to racial sterotyping and resistance to desegregation and thus made community acceptance of desegregative reorganization plans more unlikely, the policy did have indirect segregative consequences on the racial composition of Yonkers public schools. Given the inconsistent and otherwise suspect application of the space availability criterion and the Board's awareness of its discriminatory consequences, we cannot accept either space availability or the absence of any racial "segregation" of minority Special Education students as sound, consistent or neutral justifications for the discriminatory manner in which the Special Education program was conducted.
The evidence as a whole supports the conclusion that the Special Education program has at various periods of time and in various ways been operated in a unlawfully discriminatory manner. The striking disproportion in minority student enrollment in Special Education classes prior to 1972, the evidence of the assumptions and attitudes which influenced the referral process, and the various ways in which Special Education students were treated once referred, are persuasive evidence that the Special Education program was operated in an impermissibly discriminatory manner. While the substantive judgments of school officials in this particular area are not easy ones either to make or to review, the unique disparities in the treatment of minority Special Education students in Yonkers' public schools -- as evidenced by their disproportionate presence in such programs, as well as the other practices affecting such students and their known, avoidable and highly stigmatizing effects -- make deference to educational decisionmaking judgments unwarranted in this situation. Cf. Berry v. Benton Harbor, supra, 442 F. Supp. at 1307-08 (intact busing and assignment of minority students from demolished minority school to predominatly white school not justified by fact that classes were part of state program for deprived areas, even if school district obtained additional funds as a result). Compare Alvarado v. El Paso Independent School District, 426 F. Supp. 575, 609, 615 (W.D.Tex. 1976) (finding no liability where implementation of special education diagnostic program was not accompanied by disproportion in number of minority students in classes for mentally retarded), aff'd, 593 F.2d 577 (5th Cir. 1979). The placement of disproportionate numbers of minority Special Education students in predominantly white schools lacked any plausible justification rooted in current educational practice and resulted in a compounding of the discriminatory manner in which Special Education students were treated. Such assignments, like the assignment of faculty and staff, were not constrained or compelled by "neighborhood school" considerations or any other topographic or demographic factor. Rather, the Board's assignment practices for Special Education students were clearly inconsistent with its general neighborhood school policy and were allowed to continue to a significant extent despite the district's awareness of the stigmatizing consequences of these practices. Although significant and partly successful efforts were made during the mid-1970's to improve several aspects of the district's Special Education program, other stigmatizing practices either resurfaced or were permitted to continue. This factor, together with the spillover effects of the district's previous discriminatory practices and their impact on school desegregation generally, demonstrates that the historically discriminatory operation of the Special Education program continued to have disciminatory effects as of the filing of this action.
5. Teacher and Administrative Staff Assignments
The racial identifiability of Southwest Yonkers public schools has developed not only with respect to students but also with respect to teachers and administrative staff. While the absolute number of minority staff members
and the methods by which they have been assigned have varied over time, the disproportionate representation of minority staff in schools with a disproportionate or predominant number of minority students has been a constant feature of Southwest Yonkers schools.
Prior to the late 1960's, the Yonkers school district employed few minority teachers or administrators. At least two of the first three black teachers hired by the district from 1946 to 1950 were assigned either to School 1 or School 6, the two most heavily minority schools in Yonkers at the time. Hamilton Dep. 4,29-30; GX 985. The number of minority staff increased over the next several years; for example, by 1958, Longfellow Junior High School, which had a relatively small but disproportionately minority student enrollment, had three black teachers on its staff. Tr. 13,004 (Dodson). By the mid-1960's, Yonkers High School, which in 1967 enrolled 36% of the district's high school minority students, had three black teachers as well. Tr. 2420 (Guzzo).
By 1967-68, the Yonkers school district employed ninety-seven minority staff members, comprising 7% of its total staff. By this time, the disproprortionate disproportionate representation of minority staff in disproportionately minority schools was beginning to emerge. Of the eight elementary schools with greater than 10% minority staff, four of them, including the two schools with the highest percentage of minority staff, were less than 20% non-minority schools (4,9,22,32). The four elementary schools with no minority staff members, however,
were all schools with at most 13% minority student enrollments (11,13,16,23). The seven
elementary schools with over 25% minority enrollments, all but one of which (School 24) was located in Southwest Yonkers, employed 40% of the district's minority elementary school staff. As for the district's junior high schools, 75% of the minority staff was assigned to the three schools, all in Southwest Yonkers, with the highest minority student enrollments in the district. The four secondary (junior and senior high) schools with minority student enrollments greater than the districtwide average employed 31% of the district's total secondary school staff, but employed 52% of the minority secondary school staff.
In the late 1960's and early 1970's, the Board, primarily under the leadership of Superintendents Mitchell and Alioto, made increased efforts to recruit minority teachers and administrators to the school district. This period was also occasioned by an alteration in the district's hiring procedures; as of 1972, hiring decisions previously made by the Personnel Department were now to be made by school principals themselves by selecting applicants from central personal files and interviewing them for positions in their schools. GX 798. The district's increased recruitment efforts resulted in an accompanying rise in the minority staff from ninety-five (1967) to 133 (1970) to 174 (1975).
At the same time, the district's procedures for assigning or transferring teachers to particular schools became more formally structured. In 1969, the Board and the Yonkers Federation of Teachers entered into their first collective bargaining agreement. This agreement, which has remained substantially the same since 1969 insofar as teacher assignment practices are concerned, affords teachers the right to transfer voluntarily to available positions in the district's other schools, with priority based on order of senority. Thus, the hiring and assignment of new faculty has been effectively limited to filling vacancies not otherwise filled by already-employed teachers exercising their seniority rights.
The collective bargaining agreement also limits the district's ability to require teachers to transfer involuntarily. Nevertheless, the agreement reserves to the Board the power to implement such transfers "when judged to be in the best interest of the school system." GX 794, at 30; GX 795, at 32; GX 110, at 33; GX 108, at 33. Despite this residual flexibility in staff assignments and the Board's awareness of the increasing disproportion of minority teachers in minority schools during the early 1970's, this provision was rarely exercised.
At the time of the Board's initial contractual agreement with the Yonkers Federation of Teachers, the disproportion in minority staff at predominantly minority schools was becoming increasingly clear. In five elementary schools with over 50% minority student enrollments (6,12,19,25,King), twenty of the district's forty-six minority elementary school teachers were employed. Two schools in particular -- School 19 (83% minority) and King (57% minority) -- employed 26% of the district's elementary school minority staff. In contrast, seventeen elementary schools had one or no minority staff members; eleven of these schools had at least 95% white student enrollments. On the middle school level, nineteen of the district's twenty-seven minority staff members were assigned to the three most heavily minority middle schools, all of which were located in Southwest Yonkers. A similar pattern existed at the high school level as well.
By 1972-73, this disproportion had become even more pronounced. Schools 6,12,19,25 and King now employed thirty-six, or 54%, of the district's sixty-seven elementary school minority staff. The three most heavily minority middle schools
employed 69% of the district's middle school minority staff, a disproportion similar to that which existed at the high school level.
The extent to which the increasing disproportion in minority staff at predominantly minority schools was the result of a deliberate "role model" policy is an issue of considerable dispute. The existence of a racially based assignment policy was fairly well-established in Yonkers public schools with respect to principals, whose assignment was governed by district officials rather than by collective bargaining agreement. Both Assistant Superintendent Stanley Schainker and Board member Rosemarie Siragusa acknowledged that minority principals were deliberately assigned to schools with greater minority student enrollments. Schainker Dep. 22, 224-25; Tr. 5427-28 (Siragusa). Other Board members who disavowed the existence of a "role model" policy did so only with respect to teachers rather than principals. Tr. 9844-45 (Minervini); Tr. 10,947 (Jacobson). Both Jacobson and Joseph Guerney, Director of Elementary Education, acknowledged that district officials had control over such assignments unimpeded by the district's collective bargaining agreement with the teachers' union. Tr. 11,007; Tr. 11,517. As a result of the district's administrative staff assignment policy, all eight of the principals who were either hired or reassigned during Superintendent Alioto's tenure were placed in identifiably minority schools. GX 464; Tr. 11,007-010 (Jacobson); Tr. 11,521-30 (Guerney). Of the thirteen minority principals and assistant principals in Yonkers in 1974-75, nine were assigned to predominately minority schools and two others were assigned to Yonkers High School (42% minority), the district's most heavily minority high school at that time. Prior to 1979, only one minority principal had been assigned to an identifiably white school, and this principal (Hattie Becton) was subsequently reassigned to King (90% minority at the time). GX 64; Tr. 11,008 (Jacobson). This assignment policy thus served to further establish Southwest Yonkers schools as identifiably minority schools.
The existence of a "role model" assignment policy for teachers, however, is not borne out by the weight of the evidence. The only clear evidence as to the existence of such a policy for teacher assignments was proffered by Board member Siragusa. According to Siragusa, this policy originated from Superintendent Alioto and Assistant Superintendent Schainker and was agreed to by the Board. Tr. 5427-28; Siragusa Stip. PP2a-2c. Schainker acknowledged that the district's efforts to hire minority teachers occurred at a time when administrators "were operating under the assumption ... that minority youngsters need appropriate role models", but his testimony regarding the existence of a role model policy was concerned primarily with the district's hiring efforts with respect to administrative personnel. Schainker Dep. 22, 224-26. School principal Robert Dodson acknowledged that a segregative assignment policy was followed with respect to Special Education teachers, Tr. 13,018-19, but also testified that he was not instructed by Superintendent Alioto to assign minority teachers as role models in minority schools. Tr. 12,919. While Dodson's hiring efforts as Yonkers High School principal yielded an increase in minority staff from eight (1970-71) to twenty-one (1974-75) and were supported by Alioto, Dodson recalled that Alioto had stated that "it was very important that all students, white and black, view blacks in professional roles...." Tr. 12,919. And while Superintendent Robitaille acknowledged that the School 6 principal had sought to develop a staff with a racially "segregationist" attitude, he could not recall the existence of a general role model policy for teacher assignments and testified that such assignments, while frequently resulting in minority staff being placed in minority schools, were based on the staff member's years of experience. Tr. 4613-14. Finally, the Task Force for Quality Education's finding that there was an attempt at certain schools, such as King (53% minority faculty), 96% minority students, 1975-76), to place black teachers at predominantly minority schools, Tr. 3722 (Ross), this conclusion was drawn from an examination of statistical information and was not based on a finding that a general "role model" assignment policy existed for all Southwest Yonkers schools.
Several witnesses, including two Board members previously called as witnesses by plaintiffs, testified as to the absence of any such role model policy for teacher assignments. Board members Robert Jacobson and George Minervini disavowed the existence of such a policy, and Joseph Guerney, Director of Elementary Education, also testified to similar effect. Tr. 9844-45; Tr. 10,947; Tr. 11,235-37. In addition, three principals from South-west Yonkers schools all testified that they neither knew of nor practiced a "role model" policy. Tr. 12,589-90 (DiChiaro) (Commerce and Hawthorne Middle Schools); Tr. 13,243-44 (DeFino) (Schools 18 and 19); Tr. 13,487-88 (Steinberg) (School 19 and Hawthorne Middle School). Although principals were generally encouraged to hire minority staff, the record does not establish that only Southwest Yonkers principals were encouraged to do so. Schainker Dep. 22; Tr. 13,023 (Dodson). Thus, the record supports a finding that a "role model" policy was not the reason for the disproportionate assignment of minority teachers to minority schools.
The absence of a "role model" assignment policy for teachers, however, does not compel the conclusion that the increased disproportion of minority staff at minority schools was fortuitous and unintentional. The foreseeability of the increased racial segregation of staff members and the district's limited efforts to alleviate the imbalance together suggest that the resulting assignment of minority staff to minority schools was a practice which the Board approved of and intended to continue. The combination of the frequent exercise of transfer rights in a largely west to east direction, the resulting increase in vacancies at disproportionately minority schools, the contemporaneous affirmative efforts to hire minority staff, and the district's failure to exercise its reassignment prerogative resulted, quite obviously, in the vast majority of minority faculty being assigned to Southwest Yonkers schools and essentially made the use of any more explicit "role model" policy unnecessary. Given the school district's deliberately segregative pattern of administrative staff assignments and the racial disproportionality in teacher assignments to infer that the subsequent pattern of assigning minority teachers to disproportionately minority schools was considered desirable and was deliberately unaltered.
By 1974-75, four of the five elementary schools with over 20% minority staff were at least 80% minority (6,12,19,King) and had black principals, while nine of the thirteen elementary schools with no minority faculty (and a white principal) were at least 97% white (8,11,15,16,17,21,28,29,32). The secondary schools were similarly disproportionate in minority staff representation; the three middle schools with over 10% minority staff were all over 50% minority (Longfellow, Hawthorne, Commerce), and the two high schools with over 10% minority staff were the district's most heavily minority high schools (Yonkers (42% minority) and Gorton (30% minority). These five schools employed 68% of the minority staff assigned to the district's thirteen secondary schools.
The district's affirmative hiring efforts during Superindentent Alioto's term were also accompanied by a steady flow of white teachers from Southwest to East Yonkers schools. As discussed previously, see SCHOOLS IV.B.2 supra, such transfers were induced primarily by the recognized and perceived preferability of teaching in educationally superior East Yonkers schools. Consequently, the number of minority teachers in predominantly white schools declined. None of the district's seventeen predominantly (greater than 90%) white elementary schools experienced an increase in the number of minorities on their faculty from 1971 to 1975; ten of these schools actually experienced declines in minority staff, and four others continued to employ no minority staff.
The district's staff assignment practices were marked by other discriminatory or otherwise negative features. The minority teachers who were assigned to East Yonkers schools were often Special Education teachers who were deliberately assigned to such schools because of the disproportionate number of minority students in Special Education classes. Tr. 13,018-19 (Dodson); see also Tr. 2408-09 (Guzzo). In addition, minority teachers who were employed in Yonkers public schools often taught non-academic subjects such as music, physical education, health, typing or home economics. GX 587 (Gorton); Tr. 2412-14, 2420 (Guzzo) (Franklin, Hawthorne, Yonkers High); Tr. 4287 (Hammer) (Whitman, Roosevelt); Tr. 13,151-52 (Dodson) (Yonkers High). The general west to east movement of teachers also resulted in the assignment of the bulk of the district's less experienced staff to heavily minority Southwest Yonkers schools. See SCHOOLS IV.B.2 supra.
While the Board was well aware of the significant racial imbalance in staff assignments, limited efforts were made to renegotiate the district's collective bargaining agreement so as to give the district more flexibility in assigning and/or transferring teachers within the school system. While some discussion of the desirability of such an effort occurred at or about the beginning of Dr. Robitaille's superintendency in 1975, Tr. 5525-26 (Minervini); Tr. 5949 (Robitaille), these efforts were not only unsuccessful and, according to the district's chief labor negotiator, eventually abandoned in negotiations with the teachers' union, Tr. 13,174-75 (Dodson), but in 1977 the Board agreed to specific limitations on its ability to implement involuntary transfers of school teachers. Compare GX 795, at 32 with GX 110, at 33 (authorizing involuntary transfers only for health, safety, or other reasons in accordance with mutually understood past practices, or to provide students with unique educational skill or learning experience).
The Robitaille superintendency of 1975-78 was marked by a recognition of the aforementioned racial segregation of school staff, and limited efforts to rectify that condition. Superintendent Robitaille assigned to Joseph Guerney the responsibility of recruiting minority teachers for positions at East Yonkers schools and sought to assign at least one minority teacher to every public school in Yonkers. This effort was only minimally successful. The number of elementary schools with no minority staff was reduced from eleven (1975-76) to five (1978-79), and the number of minority staff in predominantly white East and Northwest Yonkers schools,
which had decreased from eighteen (1970-71) to nine (1974-75) during Superintendent Alioto's tenure, rose slightly to eleven (1978-79). These increases, however, were overshadowed by increased minority staff in heavily minority Southwest Yonkers schools. For example, the number of minority staff in predominantly minority Schools 6, 10, 19 and King increased from twenty-five (1974-75) to thirty-two (1978-79). This increase in minority staff at Southwest Yonkers schools occurred despite the staff terminations implementad as part of the district's fiscally induced budget reductions of the mid-1970's, layoffs which affected most severly the less experienced minority teachers in Southwest Yonkers schools. See SCHOOLS IV.B supra. For example, School 6, whose minority faculty dropped from 47% (1975-76) to 14% (1980-81), suffered a 38% loss in its faculty as a result of the 1975-76 teacher layoffs. GX 64, 75.
By the end of Dr. Robitaille's superintendency, the racial identifiability of the school district's faculty remained clear. The five elementary schools with over 15% minority staff were Schools 6 (98% minority students), 10 (87%), 19 (78%), 25 (85%) and King (97%); the five elementary schools with no minority staff were Schools 8 (3% minority students), 17 (3%), 21 (3%), 29 (2%) and 32 (7%). King Elementary School alone had more minority staff (sixteen) than all of the East Yonkers elementary schools combined (seven). GX 64. A similar pattern existed at the secondary school level as well.
As of 1980, the disproportion in minority staff at minority schools was still fairly severe. The four elementary schools with over 20% minority staff (10,19,25,King) had from 79% to 97% minority student enrollments and employed thirty-four of the district's seventy-six minority elementary school staff. Over half (thirty-nine of seventy-six, or 51%) of the district's minority elementary school staff were assigned to five elementary schools with at least 70% minority enrollments. Of the five schools with no minority staff, four of them had at least 93% white student enrollments (17,21,29,32). The three middle schools with over 10% minority staff were Fermi, (58% minority students), Longfellow (92%), and Hawthorne (64%). Although these schools employed less than half the total number of middle school staff in the district, they employed twenty-four of the thirty-nine
minority middle school staff. On the high school level, the two schools with over 10% minority staff were Gorton (44% minority students) and Yonkers (56%), schools which employed forty-three of the district's fifty-six minority high school staff members. The distribution of minority principals and assistant principals, while improved from previous years, was still imbalanced even as late as 1980. Although the district had more schools with over 90% white enrollments than schools with greater than 50% minority enrollments, six of the district's eleven minority principals and assistant principals were assigned to predominantly minority schools while only three were assigned to over-90% white schools.
In sum, the racial disproportion in minority faculty and administrative staff assignments has been a constant feature of Yonkers public schools. The clearly foreseeable and foreseen effect of the district's affirmative hiring of minorities, when combined with the collective bargaining agreement's transfer provisions and the general west to east flow of white teachers, was to sharply increase the number of minority teachers in Southwest Yonkers schools. The district made no demonstrated efforts to invoke its reassignment powers to counterbalance this phenomenon and made limited and largely unsuccessful efforts to renegotiate the contractual provisions to which it bound itself in 1969. While we recognize the practical difficulties which would have accompanied such efforts, this does not excuse the Board's failure to take any significant and lasting steps to reverse the racial disproportion which existed prior to the 1969 agreement and which was solidified and intensified during subsequent years. See Armstrong v. Brennan, 539 F.2d 625, 635 (7th Cir. 1976), vacated on other grounds, 433 U.S. 672, 97 S. Ct. 2907, 53 L. Ed. 2d 1044 (1977); Morgan v. Kerrigan, supra, 509 F.2d at 595-96; Berry v. Benton Harbor, supra, 442 F. Supp. at 1280, 1301. The Board's awareness of and acquiescence in the racial disproportionality of staff assignments is particularly troubling since neighborhood school policies, concern over transportation burdens, and patterns of residential segregation played no role in the formulation of staff, as opposed to student, assignment policies and practices. See Morgan v. Hennigan, 379 F. Supp. 410, 456 (D.Mass.), aff'd, 509 F.2d 580 (1st Cir. 1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1950, 44 L. Ed. 2d 449 (1975). The collective bargaining agreement, moreover, in no way explains the racially disproportionate pattern in staff assignments which had already become evident in years prior to the effective date of the first agreement, a disproportion which was apparent to school officials when the agreement was entered into. See Armstrong v. Brennan, supra. Such disproportion, in an area of public school operation in which residential segregation and student assignment-related concerns are essentially irrelevant, is of particular probative value in determining whether the racial segregation of teaching and administrative staff has been unlawfully created. See Arthur v. Nyquist, supra, 415 F. Supp. at 945. The collective bargaining agreement restrictions also cannot explain the deliberate assignment of principals and Special Education teachers on a race-conscious basis, a policy whose purported benevolence is outweighed by constitutional concerns of race neutrality. See Diaz v. San Jose Unified School District, supra, 733 F.2d at 670; Arthur v. Nyquist, supra, 415 F. Supp. at 946. The aforementioned considerations persuade us that the assignment of disproportionate numbers of minority staff to predominately minority Southwest Yonkers schools was in part the result of a desire to, and in fact did, create and perpetuate racial imbalance among Yonkers staff members consistent with the racial segregation of the Yonkers public schools, and had a segregative impact on those schools.
F. Refusal to Implement Desegregative Reorganization Plans
Plaintiffs seek to establish the segregative intent of the Board and its liability for the segregation of Yonkers public schools based in part on its persistent refusal to adopt and implement proposals for desegregating the schools. Briefly stated, plaintiffs allege that the Board's responsiveness to racially motivated community opposition to such proposals was tantamount to an impermissible official recognition or effectuation of private discriminatory desires consistent with its other discriminatory acts and omissions, and thus forms the basis for holding the Board liable for the segregation which its conduct contributed to and maintained. Primary among the examples of such conduct is the Board's refusal to adopt the desegregative components of the 1972 NYU Report or the 1977 Phase II reorganization plan.
The nature of community opposition to, and the reasons underlying the Board's rejection of, the NYU Report proposals and the Phase II plan are best examined against the backdrop of prior desegregative efforts of the Board and school administration.
The desirability of reducing the increasingly severe racial imbalance in Yonkers public schools had been recognized well before the Board's consideration of proposals for desegregating the schools. In 1963, the New York State Commissioner of Education issued a letter to all state public school superintendents and board presidents in which he expanded upon previously articulated state policy concerning school desegregation and emphasized the necessity of insuring that racial imbalance, and its concomitant interference with the providing of equal educational opportunity, be eliminated.
In response, the Board issued a resolution recognizing its commitment to the stated policies of state educational authorities and noted the responsibility of the community as well as the Board in alleviating racial imbalance in the schools and in pursuing efforts in other areas, such as housing, which also would achieve this goal. GX 924. At the time, the racial segregation of the Yonkers public schools was beginning to emerge. No predominantly minority schools existed at the time; on the elementary school level, however, the racial identifiability of School 6 (45% minority in 1961-62), 12 (41%) and 19 (32%), three elementary schools containing 47% of the district's minority elementary school children, was well-established by that time. Recognizing the state policy on segregation and the emerging racial imbalance of the schools, the Board, in 1966, notified the New York State Education Department of its interest in implementing a program to eliminate racial imbalance. GX 911.
In 1968 and 1969, the New York State Board of Regents reiterated its previously stated commitment to the elimination of racial segregation in the state's public schools. It noted the importance of eliminating racial segregation as a means of providing equal educational opportunity and stated its opposition to recently enacted state legislation prohibiting school boards from altering school boundaries or attendance zones for the purpose of eliminating racial segregation in the public schools -- legialation which was subsequently declared unconstitutional. See Lee v. Nyquist, 318 F. Supp. 710 (1970), aff'd, 402 U.S. 935, 29 L. Ed. 2d 105, 91 S. Ct. 1618 (1971).
The first significant recognition of the need to address the racial imbalance of Yonkers public schools occurred during the superintendency of Paul Mitchell. Mitchell expressed his concern that the racial segregation of the schools prevented students from receiving an equal education and was by all accounts deeply committed to rectifying this disparity. Tr. 4060-61 (Sobel); Tr. 4969-70 (Jacobson); Tr. 5203 (Morris); Tr. 13,136-37 (Dodson). During his brief tenure as superintendent, some initial steps were taken in recognition of the district's increasing racial imbalance. These steps consisted primarily of the planned opening of the King Intermediate School and School 10 as racially integrated Southwest Yonkers schools; efforts to recruit minority staff; and a series of human relations workshops, conducted for teachers and administrative staff, which were designed to sensitize school personnel to the needs of minority students, particularly blacks. The workshops were also considered an initial step towards the eventual implementation of a desegregation plan for the district's schools. By this time, specific desegregation proposals began to be considered in the district. For instance, Superintendent Mitchell discussed with school principals the possibility of redrawing high school attendance zone lines on an east-west basis so as to improve racial balance in the district's high schools. Tr. 13,137-39 (Dodson).
During the 1969-70 school year, the district also sought the assistance of state education officials in addressing the problem of racial imbalance. Superintendent Mitchell met with Dr. Morton Sobel, a specialist in educational integration for the New York State Division of Intercultural Relations in Education, and secured Sobel's assistance in the district's initial integration efforts. Sobel discussed with school officials the district's proposed application for financial assistance from the state's "Racial Balance Fund" and suggested that the district establish a task force for purposes of evaluating the school district's racial imbalance and developing an integration plan. GX 914; Tr. 4059-60 (Sobel). In July 1970, the two months after the Board adopted a resolution recognizing the need to address the problem of racial imbalance, GX 913, the district submitted an application for state financial aid for developing further plans for eliminating racial imbalance in addition to those steps which the district had already taken. GX 915. This application was granted and funds were provided to the district in September of 1970, just after the death of Superintendent Mitchell. GX 916.
During the spring and summer of 1970, Sobel also visited several schools in Yonkers and met with various teachers and administrators. He concluded that various educational deficiencies existed at the district's predominantly minority schools. Tr. 4072. Upon discussing these problems and proposals for desegregating the schools, however, Sobel was told by school officials that the community was opposed to desegregation of the schools. Tr. 4073, 4075. This community resistance was experienced first-hand by Sobel later that year when he returned to Yonkers to determine how the state money previously granted to the district was being used. Sobel and Susan Morris, a vice president of the Council of PTA's, both recalled that at a Council of PTA's meeting held for the purpose of discussing school desegregation issues, remarks were made which reflected community opposition to the concept of school desegregation, opposition which was based partly on the perceived decline in the quality of education which would result in predominantly white East Yonkers schools. Tr. 4076-77 (Sobel); Tr. 5209-12 (Morris). This community resistance also was reflected in discussions which Sobel had with James Gallagher, the Acting Superintendent at the time. Despite the expressed concern of state officials that its funds were not being used as planned and that the Board not wait until a permanent replacement for Superintendent Mitchell was appointed before it began to address the problem of racial imbalance, Gallagher expressed his reluctance to pursue desegregation efforts because of the interim nature of his appointment and community resistance to such efforts. Tr. 4074-75 (Sobel). As a result, efforts to develop comprehensive proposals for alleviating the increasing racial imbalance among the district's public schools were essentially discontinued.
2. NYU Report
The district's shift in priorities from racial desegregation to educational improvement characterized the early to mid-1970's. Among the most comprehensive proposals for improving educational opportunities and reorganizing the district's schools were those set forth in a 1972 report prepared by a study team from the New York University School of Education. The NYU Report was the result of a variety of problems which Superintendent Alioto recognized upon joining the Yonkers School District in 1971. Alioto recognized the inconsistent grade organization in the schools, particularly at the elementary school level. He noted the limited accessability of occupational and vocational programs based primarily on the use of screening criteria at Saunders, the district's primary vocational educational facility, and the limited availability of vocational and occupational programs at the district's regular secondary schools. In addition, he recognized the inequality of educational opportunity within the district, particularly with respect to the inadequate facilities and inexperienced teachers which characterized many of Southwest Yonkers' predominantly or disproportionately minority public schools. Finally, Alioto recognized the increasing racial imbalance in the schools and the need to address this condition.
An additional element of the school district's reorganization plans involved the Gorton facility. The school had grown to be an increasingly minority facility as a result of the opening of Emerson Junior High School in 1963 and the resulting southern shift in Gorton's attendance zone boundary. During the late 1960's and early 1970's, Gorton began experiencing a series of racial disturbances caused in part by increasing student dissatisfaction with the nature and variety of educational programs at the school. Both of these conditions contributed to Gorton's reputation as a racially troubled and educationally inferior school. Black students protested the recognized inadequacies of the school's non-academic, or general, program (GX 645; see also Alioto Dep. 70; GX 571) and complained that they were being steered into these programs by school officials. Tr. 4305-08, 4366 (Barrier); Tr. 13009-010 (Dodson); Peace, Jr. Stip. PP6-8. While many of the problems cited by the students were addressed by the district in accordance with an agreement entered into among Gorton students and school officials, for example, improvements in Afro-American curricular offerings and the creation of secondary school Human Relations Councils, GX 568, the inadequacy of the school's general program, and complaints of steering of minority students into the program, persisted. Alioto Dep. 70; Tr. 3892-94 (Ross); Tr. 4308, 4366-67 (Barrier); GX 571. These difficulties were compounded by the mixture of both junior and senior high school students at the school, a condition which had a negative impact particularly among the junior high school students at the facility. GX 586; Tr. 10,992-93 (Jacobson); Alioto Dep. 70-71.
Gorton's negative reputation increased as the aforementioned conditions persisted. The school's unstable condition reached a peak in 1971 and 1972 when the presence of police officers in the building became a fairly common occurrence and Acting Superintendent James Gallagher moved his office to Gorton in order to deal with the disturbances at the school. Tr. 4316-20 (Barrier). At the same time, the white student enrollment at Gorton began to decline, from 1,147 students in 1970 to 938 students in 1972, partly as a result of student fears concerning the continued disturbances at the school and the academic inadequacy of the Gorton general program. GX 570, 575, 584, 591, 593, 595.
Superintendent Alioto's response to these various problems was essentially two-fold. First, Alioto hired James Barrier, a black former police officer, to serve as his Special Consultant for Community Relations. Barrier's primary responsibility was to serve as a liaison between school officials and community members, with particular emphasis on communicating the concerns of the black community to school officials and alleviating the racial tensions at Gorton. Barrier also worked as a liaison between school officials and the police department and sought to minimize the presence of police at the school. Tr. 4314-17 (Barrier); Alioto Dep. 66.
Barrier was also instructed by Superintendent Alioto to gather information on the extent of racial imbalance in the schools. Soon after, however, Barrier was told by Alioto to cease work in this area; based on Alioto's discussions with community members and school officials, Alioto believed that it would be politically infeasible to proceed with desegregative efforts in the schools at that time. Tr. 4325-26 (Barrier). Alioto's discussion with Barrier was consistent with a viewpoint Alioto had expressed to other school officials as well. According to Board member Robert Jacobson, there is no question [Alioto] said it and he said it to many people. He said it could never be sold in the Yonkers community. Any kind of totally city-wide racially balanced program would be politically infeasible.
Tr. 5054. Similarly, Dr. Morton Sobel recalled that in discussing the issue of school desegregation with Superintendent Alioto, he was informed by Alioto that "there was great community resistance and that it was unfeasible to try to development a desegregation plan and then implement it." Tr. 4079. Alioto instead supported, and disucssed discussed with City officials, an approach to school desegregation which involved the use of scattered site housing within the city. Alioto Dep. 16-17.
Second, in October 1971 Superintendent Alioto commissioned the New York University School of Education's Center for Educational Research and Field Services to perform a study of the Yonkers public schools. The study team was asked to examine the physical capacity of school buildings, grade organization patterns, and educational program offerings, and was asked to make student enrollment projections as well, all with a view towards making recommendations for improving the structure and educational programs of Yonkers public schools. GX 115, at iv. The study team was not asked to, and did not, address the issue of racial imbalance in the schools. Tr. 13,065-66, 13,093, 13,109-15 (Pitruzzello). Members of the study team, including Dr. Philip Pitruzzello, its director, visited the schools and spoke with principals and staff prior to the preparation of their report.
In March 1972, the New York University study team issued its report, "A Study of the Yonkers Public Schools: Facilities, Demography, Organization." GX 115. The NYU Report noted the limited nature of vocational and occupational programs in the district and the education desirability of decentralizing these programs throughout the district's high schools. The Report also noted the related inadequacies of educational offerings in particular schools, for example, the non-academic, non-vocational general program, particularly at Gorton, which provided students "with few options ... beyond the basic curriculum...." Id. at 36. The Report then set forth several plans for addressing these problems, each including a number of overlapping recommendations. The primary recommendations fell into three general categories:
(1) A grade reorganization to a uniform K-5, 6-8, 9-12 grade structure. Under the district's then-existing grade structure, the schools lacked a consistent pattern of grade organization, with most sixth graders attending the district's elementary schools. Elementary schools included two K-3's, two K-4's, six K-5's, and twenty K-6's, along with King Intermediate (4-6) School. The four regular high schools included two 9-12 schools and two 10-12 schools. Consistent with Superintendent Alioto's expressed desire for reorganizing the district's grade structure, the NYU Report recommended that the district reassign sixth graders to middle schools and expand the high schools to include ninth grade students.
(2) A high school "variable access" plan. Under this plan, particular occupational programs would be distributed among the district's regular high schools so that each school would have a more comprehensive educational program. As part of this proposal, the North Yonkers (Roosevelt and Gorton) and South Yonkers (Lincoln and Yonkers) high schools would be paired so that students at one school could attend the other school on its geographic "tier", at which particular occupational programs would be available. The Report recommended closing the High School of Commerce and distributing its occupational courses among the district's regular high schools, and converting the Saunders Trades and Technical High School into an Occupational Area Center at which students from regular high schools could receive instruction in various advanced occupational programs. As an additional, alternative component of this proposal (Plan I of the Report), the Report suggested the conversion and physical expansion of Central Yonkers' Burroughs Junior High School into a districtwide high school at which technical and health programs would be offered. Id. at 36-40. The Report also proposed that School 5, located within two blocks of Burroughs, be converted into a replacement middle school for Burroughs, with school 5 students being reassigned to Schools 16, 17, 22, 24, and 25. Id. at 43.
(3) Reorganizing the district's Northwest Yonkers secondary schools. At the time the NYU Report was issued, Gorton was a combined junior and senior high school facility, Emerson was a combined elementary and junior high school facility, and Commerce was an occupational high school. Among the NYU Report propsals were (a) the relocation of Gorton High School to Emerson and the relocation of Emerson Elementary and Junior High School to Gorton (Plans I (id. at 40, 46) and II (id. at 47)); and (b) the relocation of Gorton Junior High School students to Commerce (with Commerce's occupational programs being distributed throughout the district's other high schools) (Plan III (id. at 49)).
Late in 1972, the district conducted a two-day retreat for purposes of discussing the recommendations of the NYU Report. The contemporaneously prepared documents summarizing the opinions expressed at this conference reflect the controversial nature of the educational reforms proposed by the Report. GX 760-762. Virtually every facet of the school district's grade and program structure was critically examined. A number of alternatives to the NYU Report proposals were developed and discussed. Each proposal involved a multitude of recognized advantages and disadvantages, relating to educational wisdom, fiscal and political feasibility, community acceptance, space utilization, and racial impact. From these records, it is clear that the racial effects of the various proposals was a significant factor which was considered in evaluating the recommendations of the NYU Report and the alternatives suggested by the district's own administrative staff.
Race-related concerns were frequently expressed with respect to the proposed relocation of Gorton Junior High School students to a new Commerce Middle School. Specifically, the probability that Commerce would open as a virtually all-black middle school was repeatedly recognized as a disadvantage of the proposed movement of Gorton students to that facility. While the district was committed to alleviating the unrest at Gorton by removing junior high school students from the facility, the segregative impact of transferring them to Commerce was clearly foreseen. GX 760, at 44,936 ("Commerce may become an all-black school"), 44,938 ("Commerce could be all black"), 44,939 ("Commerce becoming basically a black school"); GX 762, at 42,820 ("Racial Distribution - all black"). As an alternative to the NYU Report's "Plan III" proposal, a task group suggested that students from Emerson could be assigned to Commerce along with Gorton Junior High School students and King sixth graders. GX 760, at 44,941. Proposals were made which contemplated the reassignment of all or part of the Emerson Junior High School student body to Commerce. GX 760, at 44,941; GX 761, at 42,808. This proposal was made for the purpose of improving the racial balance of Commerce and of West Yonkers schools in general, consistent with the widely supported elimination of the junior high school component at Gorton. See GX 760, at 44,939, 44,944. The proposed reassignment of Gorton High School and graduating Emerson Junior High School students to a newly converted Emerson High School facility, along with the conversion of Gorton into the new Saunders area occupational center, was also supported as a means of improving Gorton's negative image, improving racial balance among West Yonkers schools, and expanding the facilities available for occupational education programs. Id.
The closing of Emerson Elementary School, although not expressly examined in this regard, would have been feasible from a capacity standpoint. In light of both the anticipated decline in elementary school enrollment and the proposed K-6 to K-5 grade reorganization, the capacity of elementary schools in the Northwest Yonkers area, such as Schools 22, 16, 24, and 5, would likely have been sufficient to accommodate accommodate the anticipated K-5 enrollment at Emerson. In 1973-74, Emerson had 458 K-5 students; Schools 22, 16, 24 and 5 had available capacity for anywhere from 483 (Phase II) to 551 (Engineering Department) students. In addition, alternatives suggested by the district's task group contemplated either the construction of a new elementary school in the Emerson area or the reassignment of Emerson students to Schools 16 and 22, with School 16 students being reassigned to Schools 9 and 25. GX 760, at 44,941. The latter portion of this proposal in particular was considered desirable in that School 25 would be "notably improved." Id. at 44,944.
Despite the recognized advantages of the proposal to convert Emerson, the task group also recognized that it would be problematic primarily because of the anticipated resistance of the Emerson community to the proposal. GX 760, at 44,946-47. Specifically, school officials noted that the redistricting of Emerson Elementary School students would be "politically impossible" and would cause an "uproar" because of that community's resistance to being redistricted into neighboring school zones -- Schools 16, 22, and 25 -- two of which (Schools 16 and 22) had previously enrolled students from the Emerson area. Id. School officials also expressed concern regarding the travel distance which Emerson Middle School students would have to endure in travelling to Commerce (maps indicate that the distance between the Emerson Middle School zone and Commerce varies from approximately one-and-a-half to four miles). School officials noted that the Emerson community would also be opposed to the creation of a high school in the area. Id. An additional criticism of the overall thrust of the proposal was that "the Gorton 'image' and racial imbalance are too prominent in this plan." Id. at 44,946.
Another proposal for alleviating the Gorton situation involved the reassignment of Gorton Junior High School students to Emerson. Alioto Dep. 71; Tr. 5221 (Morris); Tr. 5430-31 (Siragusa). This proposal was considered superior to the NYU Report's recommended use of Emerson as an expanded high school in terms of the adequacy of Emerson's physical facilities, while also preserving the previously recognized benefits of relieving Gorton of its junior high school student population. This plan, however, also would have entailed the reassignment of Emerson Elementary School students to neighboring schools in Northwest Yonkers, a proposal which, as noted previously, was viewed as problematic because of likely community opposition to such a plan.
The high school variable access proposal was equally controversial. Among the stated advantages of the proposal were the expansion of occupational education opportunities for students, improvement in the school district's racial balance, and the minimization of Gorton's negative image and the concomitant increase in West Yonkers property values. GX 760, at 44,935. Among the disadvangates recognized by school officials were the transportaion burdens (time, cost, distance) involved, the elimination of the Saunders self-contained concept of providing vocational and occupational education instruction in one facility, administrative and logistical difficulties, and the anticipated community opposition to the plan and its negative impact on East Yonkers property values. Id. at 44,936, 44,947, 44,953. A general resistance to change on the part of the community (and Saunders and Commerce alumni in particular) was considered as an impediment to successful implementation of the variable access plan. Id. at 44,936; GX 761, at 42,811.
In January 1973, four public hearings were held to discuss the NYU Report proposals. The recorded summaries of these hearings reveals strong community opposition to the proposals. GX 767; P-I 57-21, 57-23. Much of the opposition concerned the proposal to close Saunders and the High School of Commerce and to decentralize their vocational and occupational education programs throughout the district's regular high schools. In particular, community members expressed concern regarding the financial burdens which the decentralization of vocational and occupational programs would entail, as well as the transportation burdens which would be involved with respect to the proposed use of Sanuders as an area occupational center. Similar transportation concerns were expressed with respect to the variable access component of the plan and the proposed conversion of School 5 from an elementary to middle school facility.
Written statements and notices of community members also reflected concern with the perceived "mass busing" called for by the Report. GX 765, 766, 769. This expression of opposition to busing was consistent with the Roosevelt High School (5% minority) community's expression of opposition two years earlier to the possibility of busing Roosevelt students to Lincoln High School (1% minority). SB 861.
Some recognition of the variable access proposal's racial implications was expressed at the hearings. One parent interpreted the propsal simply as an attempt to improve racial balance. Another Northeast Yonkers resident suggested that high schools be paired on a north-south, rather than west-east, basis, based on the perceived lesser transportation burdens of such an alternative. P-I 57-23, at 44,660. While this suggestion was not explicitly race-related, most Northeast Yonkers residents would have endured a relatively lengthy trip regardless of the direction of transportation under the variable access plan. Although one reason for this suggestion may have been the perceived disparity in the educational quality of the district's East and West Yonkers high schools, Tr. 5217-23 (Morris), another parent recognized that "[i]f we divide East and West there would be a large racial imbalance." P-I 57-23, at 44,662.
The proposed reorganization of Emerson and Gorton also provoked opposition from community members. Opposition was expressed at the hearings to any proposal for reassigning Emerson students to Gorton, with parents suggesting they would refuse to send their children to Gorton. GX 767, at 42,842. Opposition to this proposal was articulated in other ways as well. For example, a flyer entitled "SAVE EMERSON" warned that converting Emerson into a secondary school for Emerson and Gorton students would mean that "Students who attend Gorton would, therefore, come to the [Emerson] school," GX 768 (emphasis in original), and that Emerson Elementary School students would be reassigned to Gorton or other schools in the area. Id.
The racial component of the opposition to the Emerson/Gorton reorganization proposals was recognized by several witnesses at trial. Board members recognized that racial concerns existed with respect to the proposed Gorton/Emerson redistricting, a concern which was consistent with the racially related concerns arising out of the redistricting of primarily white Homefield students to Gorton as part of the 1973 school reorganization. Tr. 5057-58 (Jacobson); Tr. 5509-10 (Minervini). PTA President Susan Morris also noted that racial opposition to the NYU Report proposals existed particularly with respect to the Northwest Yonkers redistricting proposals. Tr. 5221-22. Board member Rosemarie Siragusa supported the proposed transfer of Emerson and Gorton students to a new Commerce Middle School but recognized the community opposition to that proposal, opposition which was expressed in terms of the safety of Emerson students having to travel to that area of the city as well as the lower academic standards which these students would experience as a consequence of that proposal. Tr. 5430-37.
Two weeks after the last public hearing on the NYU Report, Superintendent Alioto presented his 1973 Reorganization Plan to the Board. GX 114. In general, the Plan contained the least drastic and most segregative proposals which had been suggested both in the NYU Report itself and as alternatives to the Report proposals. The Plan recommended reorganizing the school district's grade structure to a uniform K-5, 6-8, 9-12 system, along with the addition of a pre-K program in the district's elementary schools. The Plan rejected the NYU Report's variable access approach to expanding vocational and occupational education opportunities. Instead, the Plan provided for the rehabilitation of, and additions to, the district's high school facilities (including Saunders) and the placement of a limited number of additional vocational and occupational programs in each of the district's regular high schools. The Plan recommended the addition of automotive shops and commercial lab space at Gorton, the addition of five occupational facilities and rehabilitation of science labs at Roosevelt, and the addition of occupational and automotive shops at Lincoln. According to the Plan, the new Yonkers High School, scheduled to open the following year, would be designed to include space for occupational facilities. As for the district's vocational schools, the Plan recommended the closing of the High School of Commerce and the decentralization of its commercial programs throughout the district's other high schools, and the rehabilitation and expansion of the Saunders facility, including the transfer of some of Commerce's technical programs (e.g., data processing, food trades, fashion design) to Saunders. According to the Plan, the purpose of the occupational education proposals was to provide academic students with an opportunity to obtain "hands on" experience previously unavailable in the district's high schools and to better prepare the non-academic student for the world of work. GX 114, at 22-23.
The 1973 Reorganization Plan also proposed two significant attendance zone boundary changes and related student reassignments. First, high school students and graduating Emerson Middle School students from the predominantly white Homefield neighborhood were reassigned from East Yonkers' Roosevelt High School (6% minority) to West Yonkers' Gorton High School (24% minority). The reassignment of Roosevelt students involved the redrawing of the attendance zone boundary dividing the Roosevelt and Gorton attendance areas. The simultaneous reassignment of Emerson graduates was in part the result of this boundary change (i.e., for Emerson graduates living in the Homefield area) and in part the result of the overall conversion of the district's schools to a K-5, 6-8, 9-12 grade structure (i.e., for other Emerson graduates). Second, the Plan recommended that Gorton Junior High School students be transferred to the Commerce facility. The Plan did not recommend the transfer of students from any other middle school to Commerce.
Superintendent Alioto concluded by proposing a three-year period for implementation of the reorganization plan. In March 1973, the Board approved the reorganization plan. GX 114, at 2.
As a result of the district's implementation of the 1973 Reorganization Plan rather than the NYU Report proposals, the evolving segregation of the district's schools remained substantially unaltered. No student movement between the district's district's regular high schools was effectuated despite the recognition that racial integration would be an advantageous result of the variable access plan. The Saunders facility remained intact despite the realization that the school's physical inadequacies and screening process was presently resulting in the inaccessibility of vocational and occupational education opportunities to many minority students. The racially balanced High School of Commerce was closed and was replaced by a predominantly minority middle school. No desegregative reorganizations were effectuated at the elementary school level, as would have occurred under some of the NYU Report proposals.
While substantive differences between the NYU Report and the 1973 Reorganization Plan give rise to some doubt about the extent to which educational motives were responsible for the rejection of the NYU Report proposals, the 1973 Reorganization Plan itself was not devoid of educational justifiability. In issuing the Plan, Superintendent Alioto noted that, in his opinion, the NYU Report "overemphasize[d] the occupational training aspect of our instructional programs" and that he preferred instead to "focus on improvements that would affect both the academic and vocational training aspects of the Yonkers educational system." GX 114, at 10. In addition, while the closing of the High School of Commerce resulted in the loss of the district's most racially balanced (21% minority) high school, the decentralization of Commerce's technical and commercial programs was a valid educational objective which benefitted all of the district's other high schools and was in fact recommended in the NYU Report. The decision to maintain the bulk of the district's vocational programs in the Saunders facility rather than distribute them districtwide is partly a matter of educational philosophy (the self-contained vocational school versus the comprehensive high school) over which school officials may and did legitimately disagree. School officials did recognize the advantage of making these programs more accessible to a larger percentage of students, the recognized lack of minorities at Saunders, and the repeatedly acknowledged physical inadequacies of the Saunders facility. The plan, however, along with Superintendent Alioto's simultaneous efforts to alleviate the racially disproportionate impact of the Saunders screening process, see SCHOOLS IV.C supra, was designed to address each of these concerns, albeit in more limited fashion than the NYU Report proposals.
The reasons underlying the rejection of the NYU Report proposals and adoption of the 1973 Reorganization Plan, however, go beyond those which were stated in the Plan itself. Indeed, previously expressed concerns of school officials which gave rise to the NYU Report itself are somewhat difficult to reconcile with the plan eventually adopted by the Board. Both Superintendent Alioto and Board member Robert Jacobson recognized that the 1973 Reorganization Plan, in recommending the partial duplication of occupational and vocational programs in each of the district's high schools, was more costly than the NYU Report proposals.
Tr. 11,074 (Jacobson); GX 114, at 36. While the district's willingness to expend more than would have been required under the NYU Report is not inherently unjustifiable, it is somewhat at odds with the prior characterization of various aspects of the NYU Report as advantageous (when costs would be lower) or disadvantageous (when costs would be higher). GX 760, at 44,935-37, 44,939, 44,945. In addition, the NYU Report proposals would have afforded substantialy greater opportunity for equalizing educational opportunities for students attending the academically troubled Yonkers and Gorton High Schools, particularly for students in the schools' general programs, and would have resulted in more efficient and economical facility utilization with respect to the providing of vocational and occupational education programs. Tr. 13,060-67 (Pitruzzello); GX 760, at 44,395.
The testimony of school officials is consistent with the concerns expressed at the time of the 1973 Reorganization Plan and demonstrates that the rejection of the NYU Report proposals was susbtantially the result of the perceived political infeasibility of its adoption and implementation based primarily on the community's opposition to these proposals. According to Assistant Superintendent Stanley Schainker, a number of City Council members, in addition to community members and Saunders' staff and alumni, opposed the NYU Report recommendations, particularly the proposed conversion of Saunders into an area occupational center and the decentralization of its vocational and occupational programs. Schainker Dep. 39-45. Both Schainker's and Superintendent Alioto's description of the extent to which political considerations were taken into account in the administration's formulation of the 1973 Reorganization Plan reflect that the rejection of the NYU Report proposals was based in significant part on the perceived inability of obtaining City Council budgetary approval of the plan. Alioto Dep. 42; Schainker Dep. 44; see also GX 170. Their testimony also demonstrated that political considerations influenced not only the district's proposals concerning Saunders, but also the entire reorganization plan, in that the administration concluded that its insistence on widely unpopular proposals, apart from their educational merit, would endanger all other aspects of the plan. Alioto Dep. 41-43; Schainker Dep. 40-45.
The desegregative consequences of the NYU Report proposals were recognized both as an advantage and an impediment to their implementation. The racial implications of student movement between East and West Yonkers high schools were recognized by school officials as well as community members. Community members repeatedly voiced their opposition to "mass busing" even though the NYU report proposals entailed no mandatory or involuntary student reassignments and even though many students were currently using similar methods of transportation to attend high school. Although the interschool transportation called for under the variable access proposal was characterized as unnecessarily disruptive and burdensome and was consistent with previously expressed community opposition to non-desegregative busing, several school officials who were involved in the evaluation of the NYU Report proposals and were present at the public hearings concluded that opposition to the student reassignment provided for under the variable access proposal was also race-related in nature. Tr. 5222-24 (Morris); Tr. 5057-58, 11,073-74 (Jacobson); Alioto Dep. 45; Schainker Dep. 100-02; see also Tr. 4189-91 (Carman).
Schools officials also acknowledged that such concerns influenced the school district's rejection of the NYU Report proposals and its adoption of the 1973 Reorganization Plan, despite the recognized educational and fiscal validity of the NYU Report proposals. Tr. 5057-58 (Jacobson); Schainker Dep. 101-02.
Other concerns, although expressed in neutral terms, also carried with them race-related implications or overtones. Concerns regarding the decreased quality of education that would have resulted from the west to east movement of students, Tr. 5220 (Morris), while normally somewhat difficult to accept as entirely race-neutral, are even less credible in the context of the variable access proposal, where voluntary interschool movement of students would have occurred for purposes of receiving instruction in occupational and vocational education courses, rather than in traditional academic subjects such as English or math where disparities in achievement levels (as measured by achievement test scores) have existed among white and minority students in Yonkers public schools.
Another reason for the rejection of the NYU Report variable access proposal was the educational disparity between East and West Yonkers schools and the consequences which school officials believed would flow from implementation of a variable access plan in light of this disparity. Superintendent Alioto recognized the possibility that implementation of the variable access plan at that time would have resulted in white flight from Yonkers public schools. According to Alioto, given the disparity in the educational quality of the district's high schools, the movement of students from East to West Yonkers schools would have resulted in the "abandonment of the public schools by the middle class and, therefore, would be counterproductive." Alioto Dep. 46-47. This concern was particularly evident with respect to the proposed Roosevelt-Gorton tier, in view of the recognized inadequacy of Gorton's general program as well as the recent disturbances at the school. While some of the disruptiveness at Gorton was remedied by removing junior high school students from the school, it cannot be said that the administration's evaluation of the community's perception of Gorton, and the likely consequences of this perception, was unreasonable; the existing disparities in the non-curricular aspects of the educational programs at Yonkers high schools made Alioto's assessment of the likely community response to the variable access plan a realistic one.
The record as a whole persuades this Court that at the time of the adoption of the 1973 Reorganization Plan, the Board's acts and omissions were designed in part to delay any comprehensive attempt to alleviate racial imbalance until such attempts could more readily be accepted by the community. The 1973 Reorganization Plan can best be characterized in the words of its principal drafter, as a comparatively limited, non-desegregative "first step" in reorganizing the structure and equalizing the educational opportunities afforded in the Yonkers public schools. Alioto Dep. 47; see also Tr. 5058 (Jacobson). The extent to which the Board's conduct in this instance represents part of a consistent and deliberate pattern of perpetuating racial imbalance rather than a sincere effort to improve the chances of achieving successful school desegregation in future years is more meaningfully evaluated by examining the Board's subsequent encounters with proposals for desegregative reorganization of the Yonkers public schools.
The overwhelming weight of credible evidence demonstrates that the Board's decision to transfer Gorton Junior High School students to Commerce was a known segregative act. The contemporaneous statements and testimony of school officials establishes that absent the reassignment of Emerson Junior High School students to Commerce, the new Commerce Middle School was very likely to be a predominantly minority school. Tr. 5437 (Siragusa); Tr. 12,660-62 (Dodson); see also GX 760, at 44,936, 44,938, 44,939; GX 762, at 42,820. Although Superintendent Alioto testified that there was a "good opportunity to integrate" Commerce upon its opening, Alioto Dep. 73-74, this conclusion was based primarily upon the school's previous ability, as a districtwide occupational education high school, to attract a substantial white female population to the school's special technical programs and is somewhat inconsistent with his earlier recognition that his staff had concluded that Commerce would be a predominantly minority school. See id. at 70-71. In any event, this testimony is not consistent with the weight of other evidence demonstrating the administration's contemporaneous recognition that the reassignment of Gorton Junior High School students to Commerce would result in the creation of a predominantly black school.
Commerce did in fact open in 1973 as a predominately minority middle school, with a 53% minority enrollment (as compared to Gorton Junior High School's 41% minority enrollment the year before, and the 22% districtwide average). During Commerce Middle School's first year, the facility housed both reassigned Gorton Junior High School students as well as students still attending the High School of Commerce's occupational education programs. The middle school's attendance zone was the same as Gorton's previous junior high school boundaries.
One year later, Commerce Middle School's attendance zone boundary was expanded southward, extending as far south as the Getty Square area in the heart of Southwest Yonkers. As a result, additional students from the Longfellow and Hawthorne attendance zones were reassigned to Commerce, a decision which foreseeably aggravated the already significant racial imbalance at Commerce. GX 557. At the same time, the High School of Commerce was finally closed and its occupational programs were distributed to the district's regular high schools and to the Saunders Trades and Technical High School. Commerce's minority enrollment increased in 1974 to 70%, and subsequently increased to 77% by 1975-76, the year in which the Board decided to close the school.
The extent to which the opening of Commerce Middle School was an intentionally segregative act requires a more detailed inquiry into the alternatives considered and rejected by the Board. An an initial matter, we note that the decision to remove Gorton's junior high school students from the Gorton facility is not a matter of dispute. Based on the increasingly negative image of Gorton and the fact that the disturbances at the school were partly the result of the presence of junior high school students at the facility, the Board concluded that the reassignment of Gorton's junior high school students elsewhere in the district was necessary. What is disputed, however, is the manner in which these students were reassigned.
The proposed reassignment of all of Gorton's and Emerson's junior high school students to Commerce and the conversion of Emerson into a high school facility was recognized as troublesome in a number of race-neutral respects. The conversion of Emerson into a high school facility for Gorton High School and graduating Emerson Junior High School students was uniformly recognized as problematic based on the inadequacy of the Emerson facility as a high school. This proposal would also have been problematic in view of the substantial increase in the number of students who would have been enrolled at the school. While Emerson enrolled 1,296 students (618 in elementary school) in 1972-73, Emerson would have had a high school enrollment of approximately 1,400 students the following year (the enrollment at Gorton High School in 1973-74) under the aforementioned proposal. Additionally, the reassignment of Emerson Middle School students from the northernmost portions of the Emerson zone would have entailed a travel burden, in terms of both distances and terrain, which would have been among the most burdensome in the district. SB 627; GX 760, at 44,946. (The additional travel distance for students reassigned from Gorton to Commerce was relatively small in comparison). Finally, it is unlikely that community opposition to the closing of Emerson Elementary School and the reassignment of its students to neighboring schools was related to race. Portions of the Emerson Elementary School zone had previously been included in the attendance zones for Schools 22 and 16, both of which were still virtually all-white (99% and 97%, respectively) in 1972-73. Schools 5 and 24 also were predominantly white (14% and 24% minority, respectively) and relatively free of the educational inadequacies of many Southwest Yonkers elementary schools' reassignment to either of these schools was thus unlikely to engender significant race-related opposition. Only to the extent that reassignment of Emerson students to School 25 (63% minority) was anticipated would a significant potential have existed for race-related community opposition to the closing of Emerson Elementary School.
The difficulties which attended the above proposal, however, do not similarly explain the Board's refusal to implement other feasible alternatives to the creation of an additional racially imbalanced middle school in Southwest Yonkers. The proposed reassignment of a portion of Emerson's 8% minority junior high school student population to Commerce would have substantially reduced the segregative effect of the Commerce opening and would have obviated any need to redraw the Longfellow or Hawthorne attendance zones so as to assign additional students to the underutilized Commerce facility. Under this proposal, the Emerson facility could have continued to operate as a combined elementary/junior high school facility and thus would have avoided the substantial community opposition either to closing the elementary school or to converting Emerson into a high school facility. This proposal also would have avoided the capacity and facility-related difficulties of converting Emerson into a high school facility; Gorton could have continued to serve, as it in fact did, as the Northwest Yonkers high school. Travel-related burdens of Emerson students reassigned to Commerce could also have been minimized by reasigning only those students living in the southernmost portion of the Emerson Junior High School zone. The distance which such students would have had to travel to attend school at Commerce would have been considerably less than that travelled by many of East Yonkers' Whitman, Burroughs and Twain junior high school students at that time. In light of the above, it is reasonable to infer that race-related concerns of the community contributed to the failure to implement this proposal. Tr. 5221-22 (Morris); Tr. 5509-10 (Minervini); see also Tr. 5057 (Jacobson).
The decision to reassign Gorton students to Commerce, rather than Emerson, is also difficult to credibly explain without regard to the obvious racial consequences of such a decision. While Emerson may have been considered inadequate as a high school facility for an increasing number of students, we are not similarly convinced that this facility would have been inadequate as a middle school for a lesser number of students. The school was originally designed to be convertible into a junior high school facility, SB 851, was recognized as a beautiful and spacious facility by at least one Board member, Tr. 5431 (Siragusa), and was considered an "excellent junior high school facility" by members of the Gorton community as well. GX 605 (1967 letter to Board). The repeated proposals, made by school officials and community members alike, to close Emerson Elementary School and convert Emerson into an exclusively middle school facility also suggest that the 1973 proposal to reassign Gorton students to Emerson was feasible. See, e.g., GX 98, at 16 (1977 Phase II proposal), 750 (1977 proposal by Director of Pupil Personnel Jerry Frank), 779 (1976 proposal by Yonkers NAACP President Winston Ross). We are thus not persuaded that Emerson was unsuitable as a middle school facility and thus unable to accommodate accommodate the reassignment of Gorton students to that school.
The alternative of reassigning Gorton students to Emerson was also feasible from a capacity standpoint. From 1967 to 1972, the Emerson facility housed over 1,300 students every year, reaching a high of 1,394 students (699 elementary, 695 junior high) in 1967. Under the aforementioned reorganization proposal, Emerson's enrollment would have decreased from 1,286 to approximately 1,000 students (the combined middle school enrollment at Emerson and Commerce for 1973-74), with a probability of further decreases in future years due to anticipated overall declines in student enrollment. GX 115, at 125. To the extent that Emerson would nevertheless have been overcrowded as a result of the reassignment of Gorton Junior High School students, some of this overflow could have been fairly easily eliminated by reassigning some Gorton students to the nearby, recently opened Burroughs Middle School facility, whose enrollment had declined from 1,143 (1970-71) to 731 (1972-73).
The district's desire to avoid the additional "tensions" which the proposed reassignment of Gorton students to Emerson might have created, Alioto Dep. 71, is not inconsistent with the conclusion that racial concerns were a factor in the Board's failure to adopt this proposal. On the contrary, a number of subsequent incidents which occurred at Emerson confirm the existence of such concerns and their recognition by school officials. During the year in which the Board approved the 1973 Reorganization Plan, over one-third of the fifty-four minority students at Emerson Middle School were transferred to Burroughs in response to race-related concerns of the Emerson community regarding the presence of minority students at the school. According to Superintendent Alioto and James Barrier, this transfer was effectuated for the purpose of insuring the safety of minority students who had been enrolled at the school in light of altercations which had occurred between students at the school and the Emerson community's opposition to the attendance of minority students at Emerson. Tr. 4333-38 (Barrier);
Alioto Dep. 67-68. While these minority students were assigned to predominantly white Burroughs Middle School (9% minority) in Central Yonkers, the segregative nature of the reassignment insofar as Emerson was concerned was consistent both with the school district's recognition of race-related resistance to any significant integration of Emerson students with minorities from the West Yonkers area, and with the race-related tensions which arose at Emerson three years later when minority students from Commerce were reassigned there. Tr. 2562-65 (Guzzo).
Superintendent Alioto's testimony that the reassignment of Gorton students to a separate facility was designed to provide them with an improved educational opportunity is not a persuasive explanation for the segregative opening of Commerce. First, this explanation is troublesome in light of the anticipated educational problems which typically existed at such schools -- problems which Alioto recognized with respect to other Southwest Yonkers schools, Alioto Dep. 47-49, and which were quick to materialize at Commerce itself. GX 559, 561. Second, the primary reason underlying the removal of Gorton Junior High School students from the Gorton facility was the undesirable mixture of junior and senior high school students in the same school; the reassignment of Gorton students to Emerson would not have resulted in a similar problem. Third, there is little evidence to suggest that Gorton students would not have received an improved educational experience at Emerson. Finally, Alioto's explanation does not dispel the otherwise persuasive showing that racial considerations were a significant impediment to the reassignment of Gorton students in any desegregative fashion.
The Board's reliance upon two educational report recommendations in adopting the proposal to move Gorton students to Commerce does not compel a contrary conclusion. The NYU Report itself regarded the plan in which this particular proposal was contained (Plan III) as the "least desirable" plan because of its inconsistency with the educationally-related proposals suggested elsewhere in the report. GX 115, at 52. More significantly, neither this report nor the 1969 Master Plan for Occupational Education, GX 646, considered the racial impact of such a proposal, the potential community opposition to such a proposal and the reasons therefor, or the Board's reasons for implementing this proposal as against feasible alternatives.
In sum, we find that racial factors played a significant role in the Board's segregative opening of Commerce Middle School. Cf. NAACP v. Lansing Board of Education, supra, 559 F.2d at 1055-56; Arthur v. Nyquist, supra, 415 F. Supp. at 934-36. The opening of the Commerce Middle School certainly did not reverse, and indeed the reasonable inference is that it reinforced, the image of Southwest Yonkers schools as inferior and predominantly minority schools, particularly in the minds of Northwest Yonkers residents whose children avoided attending school with the former Gorton Junior High School students for several years longer than would otherwise have been the case. The opening of Commerce Middle School was consistent with other segregative actions -- the rezoning of white students from School 1 to School 22; the transfer of Runyon Heights students from Emerson to Burroughs; the pattern of segregative attendance zone changes between Schools 16 and 25 -- which preserved for many years the ability of Northwest Yonkers students to attend virtually all-white public schools.
The Board's decison to redistrict the Homefield neighborhood is not inconsistent with our findings with respect to both the segregative opening of Commerce and the rejection of the NYU Report's variable access proposal. The stated reasons for the Homefield redistricting related to improving educational and program coordination and alleviating overcapacity at Roosevelt. GX 744; SB 167. The overcapacity explanation is confirmed by numerical evidence: in 1972-73 Roosevelt had 1,901 students and was thus surpassing its recommended capacity; Gorton, on the other hand, had only 945 high school students and substantial space as a result of the reassignment of its junior high school students to Commerce. Other evidence suggests that the redistricting was also designed as a desegregative measure. A school administration task group recommended a similar redistricting proposal as a alternative to the NYU Report, an alternative which was considered advantageous from a desegregative perspective. GX 760, at 44,941, 44,944, 44-948 (redistricting Roosevelt students to West Yonkers schools "gets more whites into the districts. The only way to save the west side of the city from turning entirely black..."). Two school officials similarly recalled that the Homefield redistricting was implemented in order to improve the racial balance at Gorton. Tr. 2535 (Guzzo); Tr. 9839-40 (Minervini).
The Homefield redistricting, however, was not fully implemented the following year. Although the boundary lines for North Yonkers high schools were redrawn in 1973, the district allowed some students to continue attending Roosevelt the following year. Thus, while seventy-two students from the Homefield area attended Gorton in 1973-74, thereby reducing the racial imbalance between North Yonkers' high schools, sixty students continued to attend Roosevelt, and thirty-seven of them attended despite the district's normal policy of permitting only "last grade" students -- here, seniors at Roosevelt High School -- to continue attending their former school in the aftermath of a school zone change. Tr. 13,444-45, 13,450-51 (Frank). While no direct evidence was offered to explain the district's reasons for this policy departure, community members had strongly opposed the redistricting, citing a variety of concerns including transportation burdens, disparites in educational quality, and the types of students who attended Gorton. GX 191, 575, 579.
Several school officials also acknowledged that residents of the Homefield community had expressed what they considered to be partly race-related concerns regarding this redistricting plan. Tr. 5060-61 (Jacobson); Tr. 9839-40 (Minervini); see also Tr. 4421 (Butler). Thus, although the effect of this policy departure was relatively short-lived -- only eleven or twelve students with Homefield addresses
have attended Roosevelt rather than Gorton since 1973 (Tr. 13,444-48 (Frank)), the delayed implementation of this reassignment is consistent with the Board's contemporaneous rejection of all other desegregative, more comprehensive reorganization proposals for Yonkers public schools.
3. Phase II
The Board's most serious consideration of a proposal to desegregate the Yonkers public schools began in 1977 when Superintendent Robitaille's administration introduced the "Phase II" reorganization plan. This plan was designed to address the many problems, including racial imbalance, that remained largely unresolved after the implementation of the district's fiscally motivated school closings of the previous year. In order to properly evaluate the reasons for the Board's failure to adopt the desegregative aspects of Phase II, and the nature of the community opposition allegedly responsible therefor, a detailed description of Phase II is in order.
The Phase II plan was designed to address a variety of problems afflicting the Yonkers public schools: financial constraints resulting from the fiscal crisis of the prior years; a continuing decline in student enrollment within the district, due primarily to the declining birth rate of the last several years and the loss of students to private and parochial schools; the resulting underutilization of school facilities within the district; and racial imbalance throughout the school district.
The plan's recognition of the multifaceted problems affecting the school district mirrored the recommendations of the Task Force for Quality Education which, in June 1977, issued its final report. The report recognized the racial segregation of many of the district's schools and attributed this fact to "segregated housing patterns, socioeconomic deprivation, and systematic racism," GX 938, at 2, the last of which referred to societal attitudes. Tr. 8518 (Keith). The Task Force urged the Board to consider the school district's fiscal, enrollment and racial problems "not as separate problems, but symptoms of the ailment of a troubled school district." GX 938, at 7. The methods recommended for reducing racial imbalance included redrawn attendance zone lines, school closings (including the use of district-provided transportation for reassigned students), feeder schools (so that elementary school students could all attend the same middle and high school), specialized high schools, human relations workshops, and increased hiring of minority faculty and staff. Id. at 7-11.
The brief history of the Task Force was marked by events which presaged the overwhemling community opposition to Phase II. The initial announcement of the committee's formation excluded any mention of integration based on a determination by Task Force members that its inclusion would arouse community hostility towards the Task Force's efforts. Tr. 3695 (Ross). The Task Force held numerous public meetings during December 1976 and the early months of 1977 despite similar concerns regarding the community opposition which such meetings might engender. Tr. 3748-50 (Ross). At these meetings, the anticipated resistance materialized. In addition to expressions of community opposition to busing, GX 935, East Yonkers community members expressed concern that the transfer of West Yonkers students to their schools would lead to a decline in educational standards and student achievement and would create disciplinary problems in their schools. Tr. 3613 (Ross, Task Force member); Tr. 5381-82 (Tobin, Task Force member); Tr. 12,978-80 (Dodson). Written concerns were also expressed to school officials that the Task Force was unduly concerned with racial imbalance and not sufficiently interested in improving the overall quality of education in Yonkers public schools. P-I 59-43, 59-44. In general, the work of the Task Force was greeted with less enthusiasm and support as time progressed, due primarily to the school district's fiscal emergency, see SCHOOLS IV.A.3.b supra, and changes in Board personnel, see SCHOOLS V.C. infra. Upon issuing its report in June 1977, the Task Force was discharged.
In August 1977, Superintendent Robitaille and his administrative staff issued the "Phase II School Reorganization" plan. GX 98. Phase II incorporated some of the Task Force's recommendations,
and, like the Task Force's Report, recognized the interrelationship between the school district's fiscal enrollment, utilization and racial problems. The plan's recommendations included:
(1) a reorganization of the district's schools from a K-5, 6-8, 9-12
to a K-6, 7-8, 9-12 grade structure, (i.e., moving sixth graders back into the
elementary schools), a proposal designed in part to better utilize the
district's school facilities;
(2) the closing of three of the school district's seven middle schools
(Longfellow, Fermi, Burroughs) and the concomitant elimination of the K-6
portion of the Emerson Elementary/Middle School -- recommendations made
possible by the proposed grade reorganization described above;
(3) the relocation of the Saunders Trades and Technical High School to
the Burroughs Middle School facility, a proposal prompted by the physical
inadequacies of the Saunders facility and the infeasibility of constructing a
new Saunders facility;
(4) the closing of School 6 (98% minority), with a concomitant
northward expansion of its attendance zone and reassignment of its students to
underutilized elementary schools for purposes of improving racial balance; and
(5) The Yonkers Plan for school desegregation.
The Yonkers Plan was based on the significant imbalance in racial enrollments and in school utilization. Superintendent Robitaille and his staff acknowledged that the district's general policy of assigning students on a "neighborhood school" basis had resulted in the racial imbalance of many of the district's elementary schools. The plan also noted the degree of flexibility inherent in the neighborhood school concept, stating that the concept was not definable by school capacity, by the size of a school's student population, by the geographic area served by a school, by the student's ability to go home for lunch, or even by the distance between the school and the student's home. In addition, the plan emphasized the inefficiency of the district's facility and staff underutilization and the fiscal consequences of these conditions.
GX 98, at 24-27.
Under the Yonkers Plan, elementary and middle school attendance zones were to be redrawn so that each school would have a maximum of fifty-five to sixty students per grade, or approximately 500 students per elementary school; the size of each school's attendance zone would thus be determined by the relative population density surrounding each school. Students residing inside a redrawn school attendance zone boundary would be assigned to the school contained within that boundary. Students residing outside the redrawn boundary would be transported by the district to another school so as to positively affect the racial balance of the receiving school. Id. at 28. The plan noted that under state law, the state would reimburse the City for 90% of the costs incurred in transporting elementary and middle school students assigned to schools more than one-and-a-half miles from home. Id. The anticipated result of the plan was more effective utilization of school facilities through the substantial elimination of over-utilized and underutilized schools, and the reduction of racial imbalance among elementary and, through feeder patterns, middle and senior high schools as well. The plan recommended that the district obtain professional consulting and computer assistance in order to designate specific students for reassignment. Id. The plan did estimate, however, that 20% or less of Yonkers' elementary public school students would be directly affected by the transportation plan. Id. at 28, 31.
The financial benefits of the Phase II plan were considerable. Phase II contemplated substantial savings in addition to those achieved through the school budget reductions of the prior year. According to the Phase II proposal, the 1976 closing of seven schools would save the City an estimated $17,500,000 over a ten year period. The proposed closing of Saunders and conversion of Burroughs into the district's vocational school entailed estimated expenditures totalling $2,500,000, or $17,500,000 less than the cost of constructing a new Saunders facility. According to the plan, the remainder of the Phase II proposals would result in net savings of $28,650,750 over a ten year span, stemming primarily from the recommended school closings and resulting consolidation of educational staff. Transportation costs arising out of the Yonkers Plan were estimated at $400,000 per year, 90% of which would be reimbursed by the state the following year. GX 98, at 22. These financial benefits were virtually unquestioned by the Board and were not a source of significant controversy during the consideration of Phase II. Tr. 11,764 (O'Keefe).
The several months between the August 1977 issuance of Phase II and the March 1978 public hearings on the report were marked by what can best be characterized as overwhelming community opposition to the plan. Among the several recommendations included in the Phase II report, the Yonkers Plan was clearly the primary object of attention. The manner in which community sentiment was expressed was multifaceted -- a flyer proclaiming opposition to the proposed busing of minority students into East Yonkers schools and East Yonkers students into Southwest Yonkers schools (GX 903); letters warning that Phase II would lead to white flight from East Yonkers neighborhoods (GX 832, 838)); a boycott of the schools in protest of the busing aspect of Phase II (GX 845); and written reports of various community groups (SB 659 (November 1977 report of Lincoln Park Taxpayers Association); SB 734 (March 1978 report of Taxpayers Organization of North East Yonkers); SB 759 (January 1978 position paper of Yonkers Federation of Teachers); GX 838 (January 1978 letter of Lincoln Park Taxpayers Association President); GX 842 (February 1978 position paper of Yonkers NAACP)). Virtually all of these reports expressed strong disapproval of the Phase II plan for reasons similar to some of those expressed at the public hearings held in March 1978, including the loss of neighborhood schools and the attendant burdens of such a loss; the lack of any improvement in the quality of education as a result of the plan; and the failure to present alternatives to the busing proposal. Cf. GX 942 (Yonkers NAACP position paper explaining its decision to file complaint with United States Department of Health, Education and Welfare concerning racial segregation of Yonkers public schools). These reports urged the Board to consider alternatives to Phase II, including magnet schools, open enrollment plans, and voluntary busing. SB 734, at 13; see also SB 660, at 2 (May 1978 position paper of Citizens Committee for Quality Education). Other written expressions of opinion, however, reflected race-related opposition to the Phase II plan. GX 832 (letter to Superintendent Robitaille expressing concern that busing "'blacks & hispanics' into our east side schools" would be detrimental to neighborhood and suggesting that Task Force be renamed "'Racist Force us' to take our children and go!"); GX 838 (letter stating that community group was "unalterably opposed" to "compulsory (non-voluntary) busing for racial purposes as an end in itself"); GX 903 (flyer protesting busing of East Yonkers students and busing of "the black children (3,000 in number) to our neighborhood schools"); see also GX 616 (letter expressing opposition to busing students into Emerson Middle School).
Community members also expressed uncertainty about which students would be affected by the transportation element of the Phase II plan. Tr. 11,273-74 (Guerney). Superintendent Robitaille made efforts to alleviate this concern; specifically, he attended meetings in East Yonkers at which he explained that, based on school utilization and enrollment patterns, the transportation envisioned under the Yonkers plan would involve primarily west to east busing. Tr. 5908-09 (Robitaille); P-I 69-24. These efforts were consistent with the description of the plan's effects as reported by the Yonkers daily newspaper. GX 831.
In spite of the community's initial reaction to Phase II, the plan remained unaltered from the time of its submission to the Board to the public hearings the following spring. The Phase II plan received little formal consideration by the Board during this time. In October 1977, the Board hired an architect for the purpose of developing plans for the widely supported conversion of Burroughs into the new Saunders vocational school. SB 868. The Board held one public meeting early in 1978 to discuss the Phase II plan. Tr. 5903 (Robitaille). In January 1978, the Yonkers NAACP filed a formal complaint with the United States Department of Health, Education and Welfare regarding the racial segregation of the Yonkers public schools. SB 758; Tr. 3957-58 (Ross). The NAACP was subsequently associated by some community members with the busing proposal contained in the administration's Phase II plan. GX 845, 903. In March, Board members James O'Keefe and Seelig Lester attended a conference in Albany at which they discussed the Buffalo school district's desegregation program with Buffalo's school superintendent. Tr. 13,660 (Lester); SB 612.
During the months preceding the public hearings on Phase II, the plan's lack of detail regarding the students who would be reassigned under the Yonkers Plan was discussed by school officials. Joseph Guerney, Director of Elementary Education, attempted to determine which students would be directly affected by the Yonkers Plan through the use of pin map, an effort which proved unsuccessful. Tr. 11,312-13 (Guerney). Although several Board members recalled that they asked Superintendent Robitaille to provide greater detail concerning this aspect the plan, Tr. 11,740 (O'Keefe); Tr. 13,581-82 (Lester), neither the Board nor the administration employed an outside consultant to assist in developing the desired level of specificity despite Guerney's recommendation that an outside consultant be retained and the Phase II plan's own recognition that such assistance would eventually be necessary to implement the plan. Tr. 11,329-30 (Guerney); GX 98, at 28. The testimony of Seelig Lester suggests that Board members disagreed with Superintendent Robitaille over whether greater specificity would, as a tactical matter, increase or decrease the chances for generating community support for the plan. Tr. 13,616-17. The Board eventually decided to leave the plan as it was in the hopes of generating community support conditioned on greater specificity, rather than pursue efforts to develop greater specificity prior to the public hearings on Phase II.
In March 1978, the Board
conducted four public hearings on Phase II at secondary schools in each of the city's four geographic quadrants. GX 943.1, 943.2, 945.2. While opposition to the plan was nearly universal, the nature of the opposition was somewhat more divergent. The hearing at Fermi Middle School in Southwest Yonkers was marked by substantial opposition to several aspects of Phase II, including the proposed closing of Fermi and School 34 (Emerson Elemetary School) as well as the proposed K-5 to K-6 grade reorganization. Most of the discussion, however, consisted of almost unanimous opposition to the Yonkers Plan as a means of desegregating the Yonkers public schools. Three reasons predominated: the disproportionate burden on West Yonkers students which individuals perceived to be a consequence of the plan and its related school closing proposals (GX 945.2, at 7,8,32);
a resistance to the plan's implicit recommendation that the quality of education for Southwest Yonkers students be improved by busing them to predominatly white East Yonkers schools rather than by improving West Yonkers schools themselves (id. at 5,14); and opposition to the assignment of students away from their neighborhood schools (id. at 4,14,28). Several persons suggested the use of magnet schools as an alternative to the plan's busing proposal. Id. at 9,11,32.
The hearing at Lincoln High School in East Yonkers was considerably more acrimonious. Much of the opposition was focused on the proposed use of busing. Numerous community members and spokespersons for various community organizations cited a variety of objections to the busing proposal, including the perception that busing would not result in an improvement in the quality of education; safety and time considerations regarding the transportation of students to and from school; and the plan's potential for interfering with a student's ability to participate in extracurricular activities or to attend after-school religious classes. A number of speakers also suggested, and criticized the Phase II plan for failing to consider, alternative methods for achieving school desegregation, such as magnet schools, open enrollment or voluntary transfer plans. Several speakers warned that the implementation of the busing proposal would lead to white flight from East Yonkers schools and that they personally would refuse to allow their children to be bused to school. Several school officials also recalled hearing comments expressing the concern that the plan would result in Yonkers becoming "another Bronx," referring to the community deterioration and slumlike conditions associated with the increased minority population in New York City's northernmost borough, located just south of Yonkers. Tr. 2491-93 (Guzzo); Tr. 11,794 (O'Keefe); Lester Dep. 62-63; see HOUSING IV.B supra.
Some of the opposition to Phase II was expressed in considerably more racially hostile form. This sentiment was most often evident in the audience's treatment of the small number of speakers who spoke in favor of the plan. The Chairman of the Yonkers Human Rights Commission was booed and shouted at throughout his presentation; upon mentioning Brown v. Board of Education, and the need for integration in the Yonkers public schools, he was booed, shouted at and was unable to complete his statement. GX 943.2, at 11-2. An elderly black woman, upon mentioning the prospect of busing from West to East Yonkers and the idea that children should learn from one another, was booed and shouted at to such an extent that the hearing was adjourned. Id. at 27-28. The President of the Yonkers Council of PTAs was booed when she stated that "[t]his is the first time I can ever say that I am ashamed that I am white." Id. at 45.
Other opponents of the plan also expressed what can fairly be described as attitudes with racial overtones. One speaker physically cut a miniature American flag (conduct which provoked an angry rebuke from Board member John Romano, who was present at the hearing) in an effort to show that "[o]ur flag has been torn apart," alluding to the "minority flag with refuses to get into the main web of our country, our system, just like all other minorities had to do." Id. at 22-23. Another person spoke against the busing of School 30 students in Southeast Yonkers to other schools and noted the willingness to accept children from other areas "but with some reservations as to the total effect on the quality of education" at the school. Id. at 10. This opposition to the proposed reassignment of minority students to East Yonkers schools was consistent with other, more racially explicit expressions of similar sentiment at the time. See page 445 supra.
Not surprisingly, no explicit racial epithets were used by persons making public statements at the hearing. See Hart v. Community School Board, supra, 512 F.2d at 50. However, several witnesses testified that they heard community members make specific racial slurs both inside and outside the hearing room, including comments referring specifically to the possibility of minority students attending East Yonkers schools. Tr. 1003 (Iannacone) (comments included "they are going to send blacks, and they are going to send niggers and they are going to send spicks out here"); 12,990-93 (Dodson) (characterizing audience comments, including "We don't want those children", as "disgusting"); see also Roshkind Dep. 34, 65-66. In sum, there is substantial credible evidence that a significant amount of community opposition to Phase II, as articulated in the public record and within the hearing of several witnesses at trial, was racial in nature.
As noted previously, much community opposition to Phase II was expressed in terms of opposition to "busing." Given the history preceding the Phase II proposal, opposition to busing was understandable. The Yonkers School District had ceased to provide subsidized transportation in the 1930's; thus, unlike many other cities in the country faced with the problem of racial imbalance, Yonkers was not a community in which busing was a widespread and traditionally used form of free transportation. While the use of both public and privately-contracted bus transportation at the secondary school level has been a frequently used method of travelling to school in Yonkers, the use of buses has been relatively infrequent on the elementary school level. Even in these instances, the nature and extent of such transportation has been relatively modest in comparison to some of the transportation which was contemplated under Phase II. Many of the concerns expressed regarding the proposed busing of elementary school students were similar to those expressed by East Yonkers community members who protected the 1976 closing of Schools 4 and 15, where racial concerns were not a factor in the community's opposition to the Board's school closings and student reassignments. The fact that the 1976 school closings were so adamantly opposed, while not a complete explanation of the community opposition to Phase II, is nevertheless evidence of the sincerity of the community's belief in the neighborhood school concept and of the concerns which were expressed regarding the potential loss of neighborhood schools.
Several other factors, however, persuade this Court that opposition to busing was partially pretextual in nature. First, several of the suggested alternatives to the Phase II plan also would have required transportation of students outside of their neighborhood school zone, suggesting that at least some of the race-neutral concerns which were expressed concerning the Yonkers plan were pretextual. A number of perceived problems with the Phase II plan, such as the infringement on a student's ability to participate in extracurricular activities, the time and distance aspects involved in attending a school outside of one's neighborhood, and the perceived lack of improvement in the quality of education, would have also existed under the "voluntary" busing or open enrollment plans suggested by some community and Board members.
The support expressed for desegregative alternatives to Phase II also was somewhat inconsistent with the community's previous attitude towards similar proposals in the district. The school district's initial efforts in 1970 to address the problem of racial imbalance were greeted by community resistance to the prospect of school desegregation. See SCHOOLS IV.F.1, IV.F.2 supra. The high school variable access plan recommended in the 1972 NYU Report, involving the creation of specific occupational and vocational programs at each of the district's high schools, was strongly opposed by community members in part for reasons similar to those expressed with respect to Phase II. Such opposition suggests not only that the prospect of voluntary transportation was in fact not regarded as desirable or acceptable but also that the community's endorsement of magnet schools or open enrollment plans was not entirely sincere. The community's reaction to the efforts of the Task Force was also indicative of its unreceptive attitude toward school desegregation. Although the Task Force was responsible for exploring, and in fact recommended, a wide variety of methods for desegregating the schools, the Task Force, like the NYU Report proposals, was instead equated by some with "busing", an issue which became a primary focal point of community discussion. Tr. 3612-13 (Ross); Tr. 8363 (Keith); P-I 59-36, 59-43, 59-47A.
More importantly, the aforementioned race-neutral concerns about bus transportation also cannot satisfactorily explain the East Yonkers community's opposition to west to east transportation of predominantly minority students. While such sentiment was not the universally held position of East Yonkers citizens -- some receptivity to the enrollment of minority students in East Yonkers schools was expressed -- the frequent expression of such opposition both prior to and during the consideration of Phase II cannot be ignored. Such opposition, moreover, was consistent with the strong, longstanding community opposition to the location of subsidized housing in East Yonkers described previously in our findings. In sum, while some of the concerns expressed regarding busing were sincerely held and non-racial in origin, we also find that a significant amount of opposition to busing was pretextual and represented race-related opposition to the Phase II plan.
The testimony of Board members also demonstrates that community opposition was, in significant part, based on race. Although Board members generally recognized the loss of neighborhood schools as an important component of community opposition, racially influenced community opposition to Phase II was also recognized as a significant element of the community's resistance to the plan. Robert Jacobson, a past member of the Board who attended the Phase II hearings and met several times with Board members, stated that the Board believed, and that he was convinced, that the "basis of the community reaction -- was racism." Tr. 5063. Quenton Hicks, the Board's only minority member at the time of the Phase II proposal, testified to his conclusion that community members, whites and minorities alike, were opposed to racial integration in any form and that "[b]lack children must learn in black schools," a conclusion which was consistent with his observations concerning community reaction to the Phase II plan. Hicks Dep. 67-70, 145-46, 217; SB 815, at 30. Even Board members who testified that they did not believe race was a significant factor in community opposition to Phase II nevertheless acknowledged that at least some of the community opposition was racially based. Tr. 11,741-42, 11,794 (O'Keefe); Tr. 13,668 (Lester).
The testimony of other school officials similarly reflects that community opposition to Phase II was racially influenced. John Guzzo, Director of Secondary Education, recalled the community's resistance to the assignment of West Yonkers students to East Yonkers schools, and stated that he was "ashamed" at the comments he heard at the Lincoln High School hearing. Tr. 2488-92. Robert Dodson, Director of Special Services, also perceived community resistance to west to east busing based on comments and remarks he heard expressed at the Phase II hearings. Although he acknowledged that much of the publicly articulated opposition was based on an unwillingness to be bused from one's neighborhood school -- a concept whose existence he questioned -- much of the undercurrent at these hearings, including references to "those children" and comments which he characterized as "disgusting," convinced him that the public was generally unreceptive to relieving racial imbalance in the schools. Tr. 12,978-93. Dodson concluded that racial opposition to Phase II was substantially responsible for the Board's rejection of the plan. Tr. 13,144. The observations of Audrey Roshkind, at the time a Council of PTA's officer and subsequently a Board member, and Dominick Iannacone, former City Councilmember, led them to draw similar conclusions. Roshkind Dep. 69-74 (race was a factor in Phase II community opposition, partly based on fear of west to east busing); Tr. 1557-63 (Iannacone) (majority of Phase II community opposition racially based and similar to community opposition to subsidized housing).
Dr. David Armor, the Board's expert witness, testified that, based on his examination of the Phase II hearing transcripts and tapes, the community opposition to Phase II was similar to the Los Angeles community's opposition to mandatory desegregation, opposition which he had concluded, after a detailed study of Los Angeles citizens,
was based on sincerely held, non-racial factors. Tr. 11,954-79. We have a number of difficulties with this analysis and with the conclusion reached by Dr. Armor based on this analysis, namely, that community opposition to Phase II was predominantly not racially motivated. Tr. 11,983. Dr. Armor's conclusion was based on what he concluded was substantial community support for the assignment of minority students to East Yonkers schools; the testimony of school officials, oral and written statements made both inside and outside the Phase II hearings, and the treatment of pro-Phase II speakers at the Lincoln hearing itself significantly undercut the validity of this factual premise. In addition, the substantial differences between the two communities compared by Dr. Armor, for example, the geographical size of the district (and resulting incremental burdens imposed by busing),
further limit the usefulness of this comparison in determining the nature of community opposition to Phase II. Thus, responses which may well have had a genuine basis in fact in Los Angeles may well have been inapposite, or at least less plausible, with respect to Yonkers. Similarly, community opposition based on a fear of creating "another Bronx," while meaningless in a comparison of the Los Angeles and Yonkers communities' reaction to desegregation plans, take on particular meaning in the context of this case. This distinction becomes even more significant in light of the prior history of partly pretextual opposition to subsidized housing in areas of the Yonkers community substantially the same as those most vocally opposed to Phase II -- a factor which Dr. Armor conceded would be relevant in evaluating the sincerity of opposition to mandatory busing. Tr. 12,539. Finally, Dr. Armor's analysis did not take into consideration more privately-expressed sentiments and school officials' perceptions of community attitudes, both of which are of importance in determining the nature of community to Phase II.
Two of the proposals contained in Phase II were eventually adopted and implemented by the Board. First, in an April 1978 meeting held shortly after the public hearings on Phase II, the Board considered a resolution to relocate the Saunders Trades and Technical High School to the Burroughs facility. Over the objections of community members who claimed that the Board's separate consideration of this Phase II proposal was a "political move" and an attempt at "evading the integration issue," the Board unanimously adopted the resolution. GX 679. Burroughs was closed at the end of the 1977-78 school year, and Saunders was relocated to the Burroughs facility after the 1979-80 school year. Second, the Board eventually adopted a grade reorganization proposal similar to the one contained in Phase II.
In 1980, the district's schools were converted into K-6 elementary, 7-8 middle (except for Longfellow and Fermi, both of which continued to enroll sixth graders), and 9-12 high schools.
The Board's treatment of the desegregative components of Phase II, however, consisted of unanimous disapproval of the plan. In a May 1978 workshop meeting attended by Board members and Superintendent Robitaille, the various reasons for community and Board opposition to Phase II were discussed. SB 815, 816.1, 816.2. The opposition of Board members was based primarily on criticisms already expressed by the community, namely, the opposition to busing as a means of achieving greater racial balance and the associated problems presented by the transportation of students away from their neighborhood schools. The Board's concern with busing centered around Phase II's reliance on mandatory, rather than voluntary, means of achieving desegregation. Board members cited the widespread community opposition to mandatory busing, including the opposition of minorities, as well as its potential for encouraging further declines in enrollment, or white flight, from the schools, as the primary reasons for the plan's infeasibility. Several Board members, however, also commented on the somewhat illogical nature of community opposition to the use of such transportation per se. SB 815, at 21 (O'Keefe) ("the busing issue ... I find hard to understand, because I ride around this city, particularly as I ride around other communities throughout this nation, and wonder why all these yellow buses are running around. If there is something so immoral and dirty and bad about putting a child on a bus and sending him to school, I have to ask the question to those people who would suggest that busing somehow by very essences is immoral, bad."); 27 (Lester) ("please stop using words like 'forced busing' ... everyplace in the State of New York, young people are forced to ride on buses to get to school -- not for purposes of integration -- not for purposes of correcting racial imbalance, for purposes of getting to school.")
Virtually every Board member also expressed preferences for other, voluntary methods of desegregation, most notably, the use of magnet schools and open enrollment plans. The educational virtues of magnet school programs were cited as the primary advantages of such plans. The discussion also reflected the Board members' perception that the process of school desegregation would have to be a slow and gradual one; the Board's discussion of magnet school programs focused on their recommended utility primarily at the high school level. Id. at 14 (Paradiso), 28 (Lester), 34-35 (Romano); see also id. at 30 (Hicks). Superintendent Robitaille noted that the magnet school alternatives contemplated by the Board would also entail transportation of students out of their neighborhood school zones, and that integration efforts which focused first on the high school level were particularly inadvisable. Id. at 30-31.
The Board's recognition of race-related resistance to school desegregation was limited primarly to the concerns expresed by Southwest Yonkers community members. Anne Bocik stated that minority students and administrators from minority schools "said that they would like to be with their own." Id. at 9. Quentin Hicks related that black parents had expressed concern about having their children transported out of their neighborhood to "roam in the white jungle on that bus" and stated that "as long as I'm on the school board I'll make sure it doesn't happen." Id. at 30.
On the whole, the thrust of the workshop discussion consisted of the Board's recognition of the community's unwillingness to countenance an involuntarily-imposed desegregation proposal, such as Phase II, and one which did not carry with it any perceived improvement in the quality of education.
No final recommendations or resolutions were arrived at by the Board prior to the meeting's adjournment. None of the desegregative aspects of the Phase II plan was formally voted on, either at that meeting or at anytime thereafter.
The most immediate causes for the Board's failure to adopt Phase II thus consisted of a recognition of the infeasibility of its implementation over the strong objections of the community and a disagreement with the administration's choice of school desegregation methods. The Board workshop meeting and the trial record reflect the Board's recognition of the strong community opposition to Phase II, opposition which largely coincided with that of the Board members themselves. Several Board members also acknowledged the importance of community sentiment in formulating their position on Phase II and in developing an alternative to Phase II's desegregative proposals. Tr. 11,770-71 (O'Keefe); GX 843, at 2 (Paradiso); SB 815, at 17,19 (Spencer); Weiner Dep. 73, 309; see also Tr. 5065-66, 10,965-66 (Jacobson). Indeed, the possible recurrence of the threats and personal harassment which several Board members had experienced in the aftermath of the 1976 school closings placed considerable pressure on the Board during its consideration of Phase II. Tr. 5313-15 (Frauenfelder); Tr. 5065-66 (Jacobson). The overall conclusion of the Board was that a voluntary desegregation plan would be more acceptable to the community and more likely to achieve the Board's stated desegregative goal.
The initial failure to implement an alternative desegregation plan was also due primarily to a conflict between Superintendent Robitaille, who claimed that magnet schools were an inadequate and ineffective means of achieving school desegregation and involved fiscal burdens which would be problematic for the district, and Board members, who stated a belief in the efficacy of such desegregative methods. Thus, in the aftermath of the Phase II hearings and the Board workshop, Superintendent Robitaille continued to favor adoption of the Phase II plan up to the time of his departure from the school district in June 1978. Tr. 4700 (Robitaille). During this time, however, school officials were also instructed by Superintendent Robitaille to investigate the use of magnet schools in other cities. These officials eventually submitted a report to Interim Superintendent John Humphrey subsequent to Dr. Robitaille's departure from the school district. Tr. 13,195-96, 13,276-77 (Dodson).
Superintendent Robitaille's departure from the district prompted an extensive search by the Board for a replacement. In the wake of Phase II's demise, the Board's stated objective was to hire an individual who was not committed to any particular desegrative method, such as Superintendent Robitaille's perceived commitment to busing, but was willing to consider a variety of approaches to the school desegregation issue. Tr. 13,079-81, 13,126-27 (Pitruzzello). After approximately nine months, the Board hired Dr. Joan Raymond, an assistant superintendent from Chicago who had been involved in integrating the faculty of the Chicago public schools, as the new Superintendent of Schools, a post she presently occupies.
The nature and extent of the Board's responsiveness to community opposition to school desegretation is discernible most clearly from the Board's acts and omissions between the time of Phase II's rejection in mid-1978 and the institution of this lawsuit two-and-a-half years later. Although Superintendent Robitaille's departure and the Board's search for a new superintendent hindered to some degree the district's ability to develop and implement desegregation school reforms, the Board, during the interim superintendency of John Humphrey (who was also a candidate for the Superintendent's position) and the superintendency of Joan Raymond, did virtually nothing either to implement any of the desegregative proposals suggested in Phase II or to develop and implement any of the desegregative alternatives suggested by the Board and community members. The failure to close either School 6 or Longfellow Middle School resulted in the perpetuation of virtually all-minority schools (99% and 90% minority, respectively, in 1978-79) even though both schools were significantly underutilized, regarded as educationally inferior and physically inadequate, and had been recommended for closing on several prior occasions. Financial considerations also clearly justified the proposed school closings; the closing of a middle school in particular would have resulted in estimated savings of approximately $100,000 per year in operating costs, or approximately $500,000 per year in total costs. GX 98, at 22; Tr. 4679-80 (Robitaille).
We recognize that the decision to close a school is an unpopular one and that opposition to such school closings was expressed at at least one West Yonkers Phase II hearing. Yet the Board's failure to pursue such measures was in marked contrast to the Board's willingness, just two years eariler, to implement similarly cost-effective school closing proposals over substantial and similarly vigorous community opposition. While the Board was relatively steadfast in its decision to close schools in 1976 despite the strident protests of the affected communities regarding the loss of their neighborhood schools, the Board, faced with considerably less race-neutral opposition to Phase II, acted in a substantially more acquiescent fashion despite the school district's previously acknowledged commitment to rectifying the segregative conditions left unresolved by the 1976 school closings, its prior recognition that desegregation of the public schools was an important step towards equalization of educational opportunities in the district, and the financial consequences of the Board's inaction. A primary difference between the 1976 school closings and several Phase II proposals was the clearly desegregative impact of the contemplated reassignments from heavily minority schools, a factor which appears to have increased, rather than decreased, the Board's reluctance to close admittedly underutilized and physically inferior schools. It is reasonable to conclude that the Board's persistence in failing to implement any proposal for desegregating the schools was based in part on its awareness of community opposition to the desegregative reassignment of Southwest Yonkers students which the Phase II proposals would have likely entailed.
Similarly, the Board's professed enthusiasm for magnet school or open enrollment programs as desegregative alternatives to Phase II was followed by a marked absence of implementation efforts. No magnet school, open enrollment, or other voluntary desegregation plan was adopted at any time prior to the institution of this lawsuit.
Seelig Lester, although a self-acknowledged proponent of magnet schools who had previously helped create such schools as a deputy superintendent of schools in New York City, failed to make any such proposals and in fact opposed an open access proposal for the Yonkers high schools in 1980. Tr. 13,677. A proposal for an open enrollment plan received no response and was not pursued. Tr. 13,186-87 (Dodson). An oft-repeated suggestion that the district close Longfellow, made again in May 1979 by Robert Dodson to Superintendent Raymond, was not adopted. GX 754. As late as the summer of 1980, community opposition to racial integration was perceived as an obstacle to school desegregation efforts in Yonkers. Tr. 13,143 (Dodson). In short, despite indications that the Board recognized the need to address and remedy the racial segregation of the school district, the Board's conduct during the two-and-a-half years subsequent to the Phase II hearings and the three-and-a-half year period following the plan's introduction, constitutes a pattern of inaction with respect to school desegregation quite inconsistent with the affirmative measures taken in the face of community opposition to the fiscally motivated school closings and budgetary cutbacks of 1976.
Other circumstances suggest that the nature of the Board's responsiveness to community opposition was partly race-related. The Board was aware of the considerable amount of west to east busing contemplated under Phase II and thus could reasonbly foresee that Phase II was not likely to result in any significant dismantling of the neighborhood school concept, as feared by East Yonkers community members. See pages 467-68 infra. The Board's purported reliance on this expression of East Yonkers community opposition is thus difficult to reconcile with the predictable consequences of both the Phase II plan as a whole or some of its more limited desegregative aspects. While Southwest Yonkers residents also expressed considerable opposition to Phase II, this opposition was based not only on the potential loss of neighborhood schools but also on the perceived disproportionate burdens which would be imposed by the plan; there is little evidence, however, to suggest that the Board's failure to adopt Phase II was based in any significant part on this concern. Instead, evidence of the Board's recognition of Southwest Yonkers community opposition was more directly related to race-related considerations, considerations which cannot be relied upon as neutral reasons for failing to adopt all or part of Phase II.
The perceived absence of an improvement in the quality of education also cannot explain the Board's treatment of Phase II in light of its rejection of that plan coupled with its subsequent inaction. We have little doubt that part of the community's opposition to Phase II was based on the educational inequality between East and West Yonkers schools; apart from race-related factors, students in East Yonkers would have had little reason to express enthusiasm for attending what were widely regarded by both community members and school officials as educationally inferior schools. The Board's rejection of Phase II and its subsequent inaction, however, does not reflect a legitimate, race-neutral recognition of the educational concerns of either East or West Yonkers residents. The substantial west to east movement of students provided for under Phase II would likely have improved educational opportunities for those students previously attending smaller, more crowded and educationally inferior schools. The magnet school programs so frequently mentioned as preferable, more educationally valuable desegregative tools were noticeably absent in the years following the Board's consideration of Phase II. Other alternatives suggested by community members, such as open enrollment or voluntary transfer plans, not only were not approved or implemented but also would have presumably failed to avoid the perceived educational deficiencies of the Phase II transportation plan. The Board's failure to implement either all or part of Phase II, or any alternative plan which would have been consistent with the legitimate educational concerns of the community, undermines the credibility of the aforementioned race-neutral explanation for the Board's perpetuation of racial imbalance in the Yonkers public schools.
The Phase II plan's self-acknowledged lack of specificity does not adequately and credibily explain the Board's refusal to adopt Phase II. The communitiy's expression of concerns regarding who would be affected by the plan does lend credence to the non-racial aspect of community opposition to Phase II: if the question of whether someone would be directly affected by the plan was considered relevant or important in determining one's reaction to the plan, such a concern would suggest that opposition was premised in part on being bused out of one's neighborhood school zone, rather than having others bused into one's school. In addition, although the plan expressly called for the closing of Southwest Yonkers' School 6, Longfellow Middle School and Fermi Middle School, and thus contemplated at least some west to east busing, the relative underutilization of East Yonkers school facilities and the retention of sixth graders in elementary school (as recommended in Phase II) are factors whose effect may not have been easily predictable by community members.
The community's expression of specificity concerns, however, does not explain the Board's conduct with respect to Phase II. While the significance of enrollment and utilization data may not have been so easily discerned by community members, the Board was certainly aware of what was likely to be the predominantly west to east direction of student movement under Phase II. The Board recognized as a general matter that Southwest Yonkers schools were relatively crowded and that three of them were recommended for closing, while East Yonkers schools were relatively underutilized and none were recommended for closing. Tr. 11,790-91 (O'Keefe). Joseph Guerney had estimated that approximately 1,800 to 2,000 students would have been bused under the Yonkers Plan, and that the closing of School 6 (with its expanded boundary) alone would have accounted for at least 300 of those students. Tr. 11,296-97; GX 82, 83. Student enrollment and school capacity data for the following (1978-79) school year also reveals the extent to which transportation would have been in a predominantly west to east (or to a more limited extent, southwest to northwest) direction. Using the Phase II report's capacity figures, the three most underutilized elementary schools in the district approximately 50% of capacity) were all at least 93% white schools, two in Northeast Yonkers (26,32) and one in Northwest Yonkers (22). Of the next seven most underutilized schools (50-60% capacity), five (8,17,28,29,31) were in East Yonkers, one (34) was in Northwest Yonkers, and the only school in Southwest Yonkers operating below 60% capacity -- 99% minority School 6 -- was recommended for closing and thus likely would have been a source of west to east busing. Of the thirteen most underutilized schools (at or below 70% of capacity), only two (16,25) were in or near Southwest Yonkers; of the six most fully utilized (at least 80%) schools, all were in Southwest Yonkers, and five of them were over 40% minority. (The exception was School 13, a 32% minority school in the southeasternmost portion of Southwest Yonkers). Thus, although the precise quantification and identification of students who would have been directly affected by the Yonkers Plan is not revealed by the above data, the overall trend is fairly clear.
The allegedly uncertain effect of retaining sixth graders at the elementary school level also does not credibly explain the Board's purported specificity-based rejection of Phase II. The likely effect of the proposed grade reorganization is consistent with the conclusion that most busing would have been in a west to east direction. Six Northeast Yonkers elementary schools (8,26,28,29,31,32), all of which were under 60% capacity, were already K-6 elementary schools and thus would have been unaffected by the grade reorganization. In addition, the retention of sixth graders at the elementary school level would have affected Southwest as well as Southeast Yonkers elementary schools: Southeast Yonkers elementary schools had an average of sixty-eight fifth grade students (12% of their average capacity) in 1977-78 who would have remained at these schools under the Phase II plan; Southwest Yonkers elementary schools (not including School 6) had an average of eighty-one fifth grade students, also 12% of their average capacity.
Any perceived lack of specificity became a clearly subsidiary concern subsequent to the public hearings on Phase II. The issue of specificity was virtually absent from both the Phase II public hearings and the Board's May 1978 workshop meeting and was simply not pursued when community opposition to Phase II became clear. The Board's failure to resolve the specificity issue subsequent to the public hearings on Phase II, along with the far more frequent expression of substantive objections to the Phase II plan, pursuade us that the Board's rejection of Phase II was not attributable in any significant way to the plan's lack of specificity.
The Board's failure to implement all or part of Phase II's desegregative proposals, or any alternatives to these proposals, is in many respects consistent with the Board's previous failure to implement desegregative reorganization proposals and the district's recognition of the community's resistance to school desegregation. Beginning in 1970, the record discloses an awareness by school officials of the community's opposition to desegregation and a concomitant failure by school officials to adopt and implement educationally and fiscally sound proposals which would have helped rectify the recognized racial imbalance in the district. While the initial failure to pursue or implement desegregative school reorganization proposals was premised on the purported infeasibility of their present implementation, the refusal to implement such proposals in the late 1970's occurred in temporal and factual context which renders a finding of deliberate perpetuation of racial segregation appropriate: the increased racial imbalance among the district's schools; the increasingly visible racial opposition to correcting this condition; the increased demands for desegregative action; an increasing realization that such action was an important ingredient in eliminating disparties in educational opportunities in the district; a community increasingly afflicted by segregative governmental housing practices animated by community opposition to the presence of subsidized housing in areas outside of Southwest Yonkers; and the failure to address the problem of racial imbalance in the schools in any meaningful fashion in the years following the rejection of Phase II in a manner consistent with the Board's stated reasons for rejecting the plan. In our view, the record makes clear that the initial reluctance to implement desegregative school reorganization plans evolved into a persistent failure to adopt measures to correct recognized educational and racial imbalances in the district in part because of their desegregative consequences. From the foregoing, we find the Board's failure to meaningfully address the problem of racial imbalance subsequent to its consideration of Phase II is more readily explainable as a reflection of the community's resistance to desegregation rather than the race-neutral concerns of the community.
The only desegregative student reassignment made by the Board in the aftermath of Phase II involved the reassignment of predominantly minority Runyon Heights students to Whitman Middle School (5% minority) in Northeast Yonkers. This reassignment occurred as a consequence of the Board's decision to convert Burroughs Middle School into the new Saunders facility. The reassignment of Runyon Heights students had been anticipated by NAACP member Herman Keith, among others, before the Phase II hearings, in light of the strong community support for the relocation of Saunders to Burroughs. At a February 1978 meeting of the Advisory Council for Occupational Education, Keith (a member of the Council) expressed his concern that this reassignment would be burdensome for Runyon Heights students and urged that the Saunders proposal not be treated separately from the remainder of the Phase II Plan. GX 432. As Keith had anticipated, the Board eventually approved the Saunders proposal but rejected all of the desegregative components of the Phase II plan. Burroughs students were reassigned to Whitman and Emerson Middle School, with the Runyon Heights community included in the new Whitman zone.
The actual effect of reassigning of Runyon Heights students to Whitman was considerably smaller than attendance zone maps might suggest. Parents from the Runyon Heights community expressed concerns about the cost and inconvenience of attending Whitman and urged school officials to allow students from this area to attend Emerson Middle School (32% minority) instead. Tr. 11,733-34 (O'Keefe). The district, however, adhered to its original decision to reassign such students to Whitman; students who still wished to attend Emerson were permitted to apply for an out-of-district transfer in accordance with the district's general attendance policy. GX 734; Frank Dep. 244-48. As a result, minority enrollment at Whitman increased from twenty-three students in 1977 to only thirty-seven students in 1978; although twenty-four minorities who attended Burroughs in 1977 as seventh graders were reassigned to Whitman and Emerson, Whitman's eighth grade minority enrollment in 1978 was only four students greater than its seventh grade minority enrollment during the preceding year. GX 53, 64. With the simultaneous reassignment of over 300 white students from Burroughs to Whitman, Whitman remained a 5% minority school in 1978.
The reassignment of Runyon Heights students was part of a more comprehensive reassignment of students living in the western portion of the Burroughs zone. This reassignment of Burroughs students began in 1977, prior to the development and consideration of the Phase II plan but in anticipation of the soon-to-be-proposed conversion of Burroughs into the new Saunders. First, the district reassigned Burroughs ninth graders to Roosevelt High School. GX 847; SB 810.7. Second, the district decided to eliminate the sixth grade at Burroughs: sixth graders living in the Burroughs zone attended their respective elementary schools (5,8,31,32), and approximately eighty-five students residing west of the Saw Mill River Parkway in the former School 24 zone were scheduled to attend Emerson Middle School. GX 743, 750, 847; Frank Dep. 242, 269-70. Third, the district decided to reassign Burroughs' current sixth graders, approximately sixty-nine in number, to Emerson. GX 743. Thus, Burroughs was converted from a grade 6-9 junior high school in 1967-77 to a grade 7-8 middle school in 1977-78.
When Burroughs was closed as anticipated in 1978, parents from the former School 24 zone expressed conflicting preferences as to which middle school they wanted their children to attend the following year. Some parents, including members of the Runyon Heights community, wanted their children to attend Emerson (32% minority) in nearby Northwest Yonkers; other parents, residing in the westernmost portion of the former School 24 zone, asked to have their children assigned to Whitman (5% minority), located a considerably farther distance away in Northeast Yonkers on the other side of the Saw Mill River Parkway. The former group was concerned about the cost and inconvenience of having students travel over four miles to Whitman; the latter group expressed their desire that their children be permitted to attend Whitman along with the rest of their School 5 classmates who resided east of the parkway. Tr. 2502-04 (Guzzo); Frank Dep. 244-48.
The new middle school boundary line was redrawn along the parkway, thus including the westernmost portion of the former School 24 zone in Emerson's attendance zone. At the same time, the Board granted an option to approximately sixty-five or seventy students, some of whom resided in the westernmost portion of the Burroughs zone, to attend Whitman rather than Emerson. GX 734; Tr. 2577-78 (Guzzo); Frank Dep. 258-59. While the option was expressly granted for 1978 only, a majority of the students in this area have continued to attend Whitman by obtaining out-of-district transfers to the school. GX 734; Frank Dep. 244-48, 258-59. These students also have generally continued their secondary school education at Roosevelt High School (9% minority in 1980) in Northeast Yonkers, rather than at Gorton High School (47% minority in 1980) in Northwest Yonkers. Frank Dep. 258-59.
While the options to attend Whitman rather than Emerson was segregative in its impact, racial considerations do not appear to have been a factor in the district's initial decision to grant the options. John Guzzo testified that the granting of these options was readily permitted because of the wide disparity in available capacity at the two facilities at that time. Tr. 2577. His testimony is supported by the numerical evidence of student enrollments at the two schools: in 1977-78, Emerson had 784 students, or 92% of its middle school capacity; Whitman had 480 students, or 40% (Phase II) to 47% (Engineering Department of its capacity. The following year, a significant disparity still existed: Emerson was operating at 102% capacity, while Whitman was operating at 68% to 80% capacity.
On the other hand, neither the assignment of Burroughs students to Whitman, nor the Whitman/Emerson option, can be satisfactorily reconciled with other student assignment alternatives rejected by the Board. The willingness to assign former Burroughs students over four miles to Whitman undermines the extent to which travel and distance concerns can satisfactorily explain the Board's persistent refusal to reassign other students in a similar fashion for desegregative purposes. These concerns are particularly unpersuasive with respect to the reassignment of students from some of Southwest Yonkers' more underutilized and physically inadequate facilities -- for example, School 6 and Longfellow, which were recommended for closing in Phase II -- for whom subsidized transportation would have been provided. The district's willingness to assign middle school students considerable distances from their homes primarily where such assignments bore no desegregative consequences is inconsistent with its failure to do so in circumstances where both racial and educational factors made such assignments advisable. The granting of options to attend Whitman rather than Emerson also does not explain the failure to consider transferring Burroughs students to Longfellow or Fermi, two predominantly minority and severely underutilized middle schools in Southwest Yonkers. See SCHOOLS IV.A.3.c supra. Any desegregative effect which resulted from reassigning Runyon Heights students to Emerson or Whitman was thus clearly outweighed by the segregative reassignment of other Burroughs students to these two schools.
As a result of the Board's refusal to adopt any of the desegregative proposals of Phase II, the school district's acknowledged facility underutilization, educational inequality, and racial imbalance continued. By 1980, the district's schools, now organized primarily on a K-6, 7-8, 9-12 basis, were still operating at significantly disproportionate capacities. On the elementary school level, three schools were operating at less than 50% capacity -- Schools 26, 31 and 32, all of which were predominantly white schools located in Northeast Yonkers. Of the next seven most underutilized schools (all below 60% capacity), four were at least 95% white schools in East Yonkers (8,17,28,29), two were 90% white schools in Northwest Yonkers (22,34), and the seventh was School 6, a 98% minority school which remained open despite its recognized physical inadequacies, severe underutilization and racial imbalance. In contrast, of the six most fully utilized elementary school facilities in the district (over 80% capacity), all of them were in Southwest Yonkers, and four of them were predominantly minority schools (10,18,27,King). (The other two were School 13 (38% minority) and School 23 (45% minority)). On the middle school level, the pattern was reversed: by far the two most fully utilized facilities were Emerson (94% capacity) and Twain (89% capacity), both of which served predominantly white neighborhoods which were closer to the severely underutilized and predominantly minority Longfellow school. Twain, a 4% minority school, also served neighborhoods which were roughly equidistant to the underutilized Fermi Middle School (62% minority) in Southwest Yonkers.
The costliness of such underutilization was not, and indeed cannot be, seriously disputed. The school district administration had recognized, and the Board was aware, that each elementary school closing would have resulted in savings of approximately $200,000 to $250,000 per year; as noted previously, each middle school closing would have saved approximately $500,000 per year, including $100,000 per year in operating costs. Tr. 4679-80 (Robitaille); Tr. 11,605 (Guerney); GX 98, at 21-22; see also Fareri Dep. 157-60. Given the acknowledged fiscal instability of the City and school district and the projected decreases in future student enrollment, at least some efforts to redress this condition would normally have been expected. While fiscal imprudency or inefficient management and operation of a school system is not necessarily indicative of improper intent, the present record persuasively demonstrates departures from previously followed neutral considerations and a failure to rectify recognized educational and fiscal problems primarily where racial consequences were also present. The failure to adopt either Phase II or any desegregative portion of, or alternative to, the Phase II plan, or to remedy the recognized educational and school utilization disparities within the school system, thus transcends mere inefficiency or lack of sound educational judgment. The record demonstrates that racial factors were responsible in significant part for the Board's failure to alleviate the segregated condition of Yonkers public schools.
In sum, this Court concludes that racially related factors were in part responsible for the community oppostion opposition to Phase II and for the Board's subsequent failure to implement either this plan or any other desegregation proposal. We are fully mindful of the controversial nature of busing, the many responsible authorities who have propounded both its virtues and its shortcomings, and even legislative expressions regarding busing as an integrative tool of last resort. It is not the function of this Court to deal at this stage of the proceedings with this difficult sociopolitical and educational conflict. It is our duty, however, to determine whether the Board's conduct under the facts and circumstances of this case reflected what it perceived to be the partly racially influenced concerns or attitudes of others. Based on our review of the recorded and documented expressions of community opposition to Phase II; the testimony of Board members and other school officials regarding the nature, both actual and perceived, of community opposition to Phase II; the objectively favorable financial and utilization-related benefits of the plan; the Board's failure to meaningfully respond to and implement the alternatives suggested by the community and by Board members themselves; the previous circumstances leading up to the Board's failure to implement Phase II or any other desegregative alternative, including the integration-related pronouncements of state education authorities; the Board's inconsistent treatment of busing for non-integrative purposes; and the inconsistency or unpersuasiveness of other proffered explanations for the Board's inaction, we find that the Board's failure to implement a desegregation plan for the Yonkers public schools was prompted in part by the community's racial resistence to school desegregation. The legal consequences of the Board's failure to desegregate the Yonkers public schools is a separate issue which is discussed below in our Conclusions of Law.