Appeals from orders entered in the United States District Court for the Southern District of New York (Sand, J.), directing defendants to provide funding for the construction of two new schools as part of the court's School Remedy Order.
Lumbard and Miner, Circuit Judges, Conner,*fn* District Judge.
On these appeals, defendants-appellants City of Yonkers and Yonkers Community Development Agency (collectively, "the City") appeal from two orders entered January 30, 1987 and March 17, 1988 in the United States District Court for the Southern District of New York (Sand, J.), which direct the City to provide funding for the construction of two new schools in accordance with the public school desegregation plan approved in that court's prior School Remedy Order. Because the City's objections to the construction of these schools clearly were encompassed in its prior appeal to this Court and present no new issues, we hold that their resolution has become the law of the case and decline to reconsider them. Therefore, we affirm the orders of the district court.
In United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055, 56 U.S.L.W. 3848, 100 L. Ed. 2d 922, 108 S. Ct. 2821 (1988), familiarity with which is assumed, this Court affirmed a judgment of the United States District Court for the Southern District of New York (Sand, J.), see 624 F. Supp. 1276 (S.D.N.Y. 1985), that held, inter alia, defendants the City and Yonkers Board of Education ("the Board") liable for racial segregation of Yonkers public schools and directed them to undertake measures to remedy that segregation. This Court also affirmed three subsequent remedial orders issued by the district court, including a School Remedy Order entered May 13, 1986, see 635 F. Supp. 1538 (S.D.N.Y. 1986).
The School Remedy Order was issued following the submission of two proposed remedial plans by the Board and responses by the government and plaintiffs-intervenors NAACP. The plan adopted in the order included provisions for school closings, dedicated and attendance-area magnet schools, a voluntary student transfer program, and the appointment of a Monitor "empowered to make recommendations to the Court with respect to changes she/he believes necessary to make the plan more effective," id. at 1552. The plan required, inter alia, the construction of two new schools: (1) a new "attendance area magnet" elementary school to replace School 19, see id. at 1542-43; and (2) the Hudson River Museum Junior High School ("the Museum School"), one of four nonattendance zone, dedicated magnet schools designed "to reduce racial/ethnic isolation by attracting students to programs that emphasize areas of special interest," id. at 1541, in this instance, a program for gifted and talented students. Finally, the district court "anticipated that the necessary funding [for implementing the plan] will be provided by the City of Yonkers," id. at 1551.
In the second order, issued on May 28, 1986, the district court directed that "the City shall . . . provide funding for all of the school desegregation measures required by" the School Remedy Order, 635 F. Supp. 1577, 1583 (S.D.N.Y. 1986) (the "Housing Remedy Order").
On July 1, 1986, the district court issued the third order, requiring the City to fund the operating and capital expenses of the first year of the desegregation plan. This order originated in the City's June 11, 1986 motion for a stay of the remedy orders on the ground that the cost of the schools was neither related to desegregation nor accurately estimated. Although this motion was denied, the district court allowed the City to submit evidence on the issue whether some items in the Board's budget were not required for desegregation purposes. The City accordingly submitted, inter alia, a report prepared by the Bennett, Keilson & Co. accounting firm. The Bennett Report "concluded that the School District has substantially underestimated the cost of the two proposed schools" and "from a financial standpoint and based on the limited information provided," questioned the need for any new school construction "since there is no need to change the overall capacity of the district," Joint App. at 173-74. The Museum School cost was deemed "difficult to justify in light of existing capacity in the district," including the Walt Whitman School, id. at 174. The "substantial rehabilitation" of School 19 was found "significantly less expensive without impacting the objectives of the desegregation plan," id., although the Report made no estimate of rehabilitation cost. The Bennett Report was referred to the Monitor, who found in his July 15 report that the schools were necessary and recommended that the Board proceed with their planning.
On July 10, 1986, the City filed notices of appeal from Judge Sand's School and Housing Remedy orders of May 13, May 28, and July 1, 1986. On December 28, 1987, this Court rejected the City's position and upheld the district court's liability judgment and remedy orders in full. See 837 F.2d at 1237-39.
1. The January 30, 1987 Order
During the pendency of the prior appeal, the City moved on December 15, 1986 to modify the School and Housing Remedy Orders insofar as they required the City to fund the development and construction of School 19 and the Museum School. The City argued that: (1) the expenses for the two schools were not related to desegregation and thus the court had no authority to order their construction; (2) the Museum School was unnecessary; and (3) creation of a smaller, "new or different" magnet program in a rehabilitated School 19 was less costly than, but equally effective as, construction of a new school. Following oral argument, Judge Sand denied the motion, noting that the Board "had originally proposed these two new schools and no party raised any objection to their construction prior to the entry of the" School Remedy Order, Joint App. at 207 (Order of Jan. 30, 1987). He directed the Board "to determine," for submission to the Monitor, "the cost, feasibility and consistency with the integrative objective of the [School] ...