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PARENT ASSN. OF P.S. #50 v. QUEENS

January 15, 1986

THE PARENT ASSOCIATION OF P.S. #50, CHANNELL ELLISON, a minor by her parent and next friend Jacqueline Ellison, CERESSIA HATHORN, a minor by her mother and next friend Ethel Hathorn, SHENIQUA DEAN, a minor by her mother and next friend Lillie Dean, individually and for others similarly situated, Plaintiffs,
v.
QUEENS, NEW YORK COMMUNITY SCHOOL DISTRICT #28, FRANKIE L. CARR, LYNN J. GROSS, ANN HILL, JUDITH MARCERINO, RITA SIEGEL, PHOEBE WIENER, Queens, New York Community School Board #28 members (sued in their normal capacity), DOCTOR ARNOLD RAISNER, Queens, New york Community School district #28 Superintendent, NATHAN QUINONES, Chancellor of the City School District of the City of New York, Defendants.



The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge

This: is a class action brought by, among others, plaintiffs The Parent Association of Queens Public School #50 in Community School District #28 (District 28), and Ceressia Hathorn, a black minor child, who attends the public schools in District 28.

The defendants are District 28, the members of the board of District 28 (District 28 Board), the superintendent of District of 28 (the Superintendent), and the Chancellor of the New York City School District (the Chancellor).

 By memorandum and order dated November 16, 1984 this court allowed the action to proceed as a Rule 23(b)(2) class action and conditionally certified the class as consisting of all black and Hispanic students who would have attended Junior High School #142 (School 142) but for its closure.

 Plaintiffs claim that (a) the act of closing School 142 and (b) the wholesale reassignment of the students to Junior High School 8 (School 8) were racially discriminatory acts. Plaintiffs allege jurisdiction of this court pursuant to 28 U.S.C. §§ 1343(3) and (4), 42 U.S.C. §§ 1981 and 1983, and the Thirteenth and Fourteenth Amendments to the United States Constitution. They also invoke the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

 I

 In substance, plaintiffs contend that, commencing at least as early as 1970, defendants took actions and failed to act knowing that as a consequence School 142 would continuously and inevitably deteriorate and would ultimately have to be closed as a school for the general public. Plaintiffs assert that because blacks attended the school and it was in a black neighborhood defendants "planned and created" the "death" of the school pursuant to an "evolving policy" going back to at least 1970 and that their acts were thus in violation of the Equal Protection Clause and the Thirteenth and Fourteenth Amendments.

 II

 School 142 opened as a junior high school in 1930, and closed to the general education population at the end of the 1983-1984 academic year. Thereafter a so-called career development center under the New York City Division of Special Education, Office of Citywide Programs, serving students with handicapping conditions, has occupied the building (now known as School 752).

 When School 142 closed, the students continuing on in junior high school were assigned, with exceptions not here relevant, to attend School 8. Students graduating from the sixth grade at public schools 50 and 60 who would have attended School 142 for the seventh grade, now attend, with exceptions not pertinent, School 8. The following tables show the capacity and register of and the percentage of utilization of space at School 142 for the years 1970 through 1983. Percentage of, Year Capacity Register Utilization 1970 1397 1285 92 1971 1425 964 67 1972 1425 1017 71 1973 1445 1017 74 1974 1445 1013 70 1975 1445 878 61 1976 1445 723 50 1977 1445 685 47 1978 1445 602 42 1979 1393 602 43 1980 1409 534 38 1981 1375 500 36 1982 1304 493 38 1983 1215 520 43

 By 1984 enrollment at School 142 dropped to 319.

 Throughout those years the students attending School 142 were between 91.1% and 96.1% black, with the balance largely Hispanic.

 For the years 1970 through 1984 the students attending School 8 have been more than 95% black, with the balance largely Hispanic. The following tables indicate the capacity and register of and the percentage of utilization of space at School 8 for the years 1970 through 1983. Percentage of Year Capacity Register Utilization 1970 1505 1710 114 1971 1540 1583 100 1972 1560 1378 88 1973 1560 1246 80 1974 1553 1192 77 1975 1553 1155 74 1976 1587 1083 68 1977 1577 977 62 1978 1522 980 64 1979 1615 827 51 1980 1606 751 47 1981 1554 760 49 1982 1547 723 47 1983 1539 663 43

 By 1984 School 142 had become an underutilized facility and consequently had an academic program far less comprehensive than it had been between 1970 and 1974. As plaintiffs state, this condition of underpopulation had the "natural and inevitable consequence" of causing the closing of a school no longer "a viable educational institution." Plaintiffs' contentions focus not so much on the immediate decision to close the school but on what they say were deliberate acts commencing at least fourteen years before that were "intentionally racially discriminatory and otherwise based on racial criteria" and led inexorably to the closing.

 III

 Plaintiffs argue that defendants took the following affirmative and intentionally racially discriminatory actions: (1) the building of new junior high schools and the rezonings of students out of School 142 commencing about 1970, (2) the allowance of a free choice transfer program permitting elementary school students to choose to go to a school other than the one in their neighborhood in order to obtain an integrated education, (3) the allowance of special variances to students at School 142, (4) the allowance to School 142 students in 1979 of the option to obtain in another school "special progress" classes not available at School 142, and (5) the encouragement through guidance counselors of parents to have their children apply to go to "better schools."

 Plaintiffs also contend that defendants failed to implement alternatives that would have increased enrollment of School 142 or otherwise improved it. They say defendants (1) failed to support and in the end opposed a proposal by District 27 to rezone children in elementary schools 55 and 121 so that they would attend junior high school at School 142, (2) failed to locate the district office of Board 28 at School 142, (3) neglected the physical plant, (4) failed to appoint a permanent principal for the school from 1970 to approximately 1978, and (5) failed to implement various suggestions brought to them, such as making School 142 a "magnet" school, affiliating with York College, getting monies to continue an aviation program, and locating the Townsend Harris program at the school.

 IV

 As noted, the court certified the class on whose behalf this case is brought as consisting of "students" both black and Hispanic who would have attended School 142 but for its closing. Some of the testimony on behalf of plaintiffs concerned the adverse effect of the school's closing on the adults in the "community." However, the complaint asserts the students' interests. Therefore the primary concern must be on the nature, quality, and ...


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