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UNITED STATES v. CITY OF YONKERS

August 30, 1993

UNITED STATES OF AMERICA, Plaintiff, and YONKERS BRANCH, NAACP, et al., Plaintiff-Intervenors,
v.
CITY OF YONKERS, YONKERS COMMUNITY DEVELOPMENT AGENCY, YONKERS BOARD OF EDUCATION, Defendants, and U. S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SAMUEL PIERCE, SECRETARY, Added-Defendants, and THE STATE OF NEW YORK; MARIO CUOMO, as GOVERNOR OF THE STATE OF NEW YORK; THE BOARD OF REGENTS OF THE STATE OF NEW YORK; MARTIN C. BARELL, R. CARLOS CARBALLADA, ADELAIDE L. SANFORD, WILLARD A. GENRICH, EMLYN I. GRIFFITH, JORGE L. BATTISTA, LORA BRADLEY CHODOS, LOUISE P. MATTEONI, EDWARD MEYER, FLOYD S. LINTON, SALVADORE SCLAFINI, MIMI LEVIN LIEBER, SHIRLEY C. BROWN, NORMA GLUCK, THOMAS FREY and JAMES McCABE, SR., in their official capacities as members of the State Board of Regents; THE DEPARTMENT OF EDUCATION OF THE STATE OF NEW YORK; THOMAS SOBOL, as COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK; and THE URBAN DEVELOPMENT CORPORATION of the STATE OF NEW YORK and VINCENT TESE, as Director of the Urban Development Corporation, Added-Defendants.



The opinion of the court was delivered by: LEONARD B. SAND

 SAND, J.

 As a result of good faith and zealous implementation by the Yonkers Board of Education ("YBE") and its staff of this Court's initial School Remedy Order of May 13, 1986 (Educational Improvement Plan ("EIP") I), the racial separation of students in the Yonkers Public Schools, which had existed for decades, ended. As the YBE correctly states, "Within less than a year of the issuance of EIP I, the Yonkers Board achieved desegregation of enrollments among the schools; something that many other school districts have taken years or even decades to accomplish." YBE, Post-Trial Brief, p.2. This achievement was brought about by instituting a voluntary magnet school program, including procedures for school selection by parents, busing and other similar measures. The transition took place in a relatively smooth and peaceful manner, without the disturbances and disruption which plagued desegregating school districts elsewhere in this country. What makes this accomplishment even more remarkable is that it took place despite the fact that during the years in question, Yonkers was engaged in a bitter and divisive effort to thwart this Court's orders to remedy, to some degree, the racial discrimination with respect to housing which has existed in Yonkers for well over 40 years.

 The YBE, joined in this proceeding by plaintiff-intervenors, the Yonkers Branch, National Association for the Advancement of Colored People ("NAACP"), takes the position that the placement of majority and minority students and staff in the same school buildings in numbers proximate to their incidence in the general school population, so that schools are no longer racially identifiable, is but the first step to achieving a truly unitary school system. Such a unitary school system is in place only when students, regardless of race, have similar educational opportunities and experiences.

 The YBE and NAACP contend that vestiges of segregation remain in the Yonkers Public School system which, although capable of being remedied or eradicated, are not being adequately addressed. As a consequence, it is urged that the Yonkers Public School system (sometimes "YPS") continues to discriminate against blacks and hispanics and that dissatisfaction with the existing system, on the part of both minority and majority parents, threatens to negate or diminish the accomplishments thus far achieved.

  The YBE and NAACP further assert that the failure to address adequately these vestiges of segregation results, not from a lack of commitment on the part of the Superintendent of Schools or his staff, but from a lack of funds. The YBE has promulgated a detailed and extensive program (EIP II) in which it sets forth the steps which it believes should be appropriately taken to eradicate vestiges of segregation. Believing that City resources were inadequate to meet the perceived needs *fn1" and that the State of New York shared a liability with the City for the presence of these vestiges of segregation, the YBE instituted these proceedings against the State which had not heretofore been a party to this protracted litigation. The YBE, joined by the NAACP, seeks to impose upon the State a fiscal responsibility, shared with the City, to fund EIP II.

 Scope of Issue

 In prior proceedings, the State has moved to dismiss, and sought summary judgment on a number of grounds, including sovereign immunity, statute of limitations and laches. These motions have been denied. See United States v. YBE, 893 F.2d 498 (2d Cir. 1990) (appeal dismissed).

 The YBE had alleged the existence of seven vestiges of segregation:

 
(1) the level of minority achievement; (2) the self-esteem and attitudes of students toward education and the educational process; (3) the relationships between majority and minority students; (4) the attitudes and effectiveness of teachers and administrators in educating majority and minority students in integrated schools and classrooms; (5) the continuing need for adjustments in curriculum and programs to facilitate quality education in integrated environments under the existing desegregation remedy; (6) the continued disparities in the quality of school facilities and resources; and (7) community perceptions concerning the Yonkers schools and the quality of education under the current desegregation plan.

 The position taken by the City of Yonkers in these proceedings has been somewhat blurred. The City in the first instance denies that vestiges of segregation exist in the Yonkers Public Schools, but if such vestiges exist, the City alternatively argues (as federal procedure permits it to do), that the State, not the City, should pay the costs of their eradication.

 In our Opinion of July 10, 1992, denying the motions of the Added State and UDC Defendants ("State Defendants") *fn2" we concluded that we could not, despite the YBE and State defendants' proffer of conflicting expert testimony, "definitively determine on this motion whether such vestiges remain in the Yonkers school system".

 "Further," we wrote, "we believe that this is a sufficiently discrete issue from the questions of State related causation, liability, and relative responsibility to make bifurcation of this issue feasible". Opinion, July 10, 1992.

 Accordingly we advised: "the Court will proceed to determine, after a trial on the merits, the question whether inadequately addressed vestiges of segregation remain in the Yonkers school system. This question has three components: (1) what vestiges, if any, exist; (2) what steps are presently being taken to address such vestiges, if any are found to exist; (3) the adequacy of (2) and availability of more effective measures. All other issues will be deferred for later consideration."

 The Court also stated that "we put all parties on notice that if vestiges of segregation are found to exist and to be inadequately addressed, the Court will consider what action is appropriate and will not be limited to the relief sought by the YBE and NAACP against the State. If no vestiges exist, this litigation against the State will, of course, be dismissed."

 The Court, having heard twelve days of testimony, shall now proceed to address the specific questions set forth in our July 10, 1992 opinion.

 What is a Vestige of Segregation?

 The YBE asserts that the testimony adduced at the hearing proves: "numerous related discriminatory conditions or vestiges of prior de jure segregation and inequalities that continue to exist in the Yonkers Public Schools, including the following:

 
(1) Within many schools in Yonkers, there remains racial and ethnic segregation of students among various levels of courses, programs, classes, and in-class groupings, which affects the quality and type of education provided to children of different racial and ethnic groups;
 
(2) The implementation of EIP I has not addressed or alleviated many of the conditions of inequality that were fostered by the racially dual system of education in Yonkers, such as racially disparate attitudes and expectations of teachers and administrators; teaching methods that support effective instruction primarily for middle or upper middle class white students in homogeneous classrooms; curriculum that is neither multicultural nor aligned to the goals and objectives of the desegregating school system; and a lack of adequate services for students with limited English proficiency, and other pupil personnel services, that are particularly important to the effective education of minority children;
 
(3) The implementation of EIP I itself has given rise to a number of problems that must be addressed to ensure effective education in a desegregated setting, such as the increased difficulty of obtaining parental involvement in schools that, by necessity, no longer serve populations drawn exclusively from surrounding, segregated neighborhoods;
 
(4) Although EIP I has been successful to date in maintaining desegregated school enrollments, its ability to support continued voluntary desegregative movement of students within Yonkers and its ability to attract enough middle class and non-minority students to provide for meaningful desegregation in the future will be seriously undermined unless the magnet school programs are fully implemented and the overall quality of education in the system is improved; and
 
(5) There continue to exist extremely high levels of as yet unremedied residential segregation in Yonkers, which require the Yonkers Board not only to maintain EIP I but also to offset to the extent practicable the negative effects that flow from the fact that a substantial portion of minority students in Yonkers live in highly segregated, publicly assisted or other housing in the Southwest quadrant of the City.

 YBE Post-Trial brief pp 3-4. Before addressing the question whether "vestiges of segregation" exist in the Yonkers Public Schools, one must of course begin with some working definition of that term.

 Although the Supreme Court has not explicitly stated what the term "vestige" encompasses, the line of cases beginning with Brown v. Board of Education of Topeka, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954) and continuing through the recent decision of Freeman v. Pitts, 118 L. Ed. 2d 108, 112 S. Ct. 1430 (1992) suggests the following definition. A vestige of segregation is a policy or practice which is traceable to the prior de jure system of segregation and which continues to have discriminatory effects. A vestige is not the lingering effect or consequence of segregation, such as poor relations between majority and minority students, but such an effect or consequence may be evidence that a vestige of segregation exists. The duty of the courts and the school boards is to eliminate vestiges of past discrimination "to the extent practicable." Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 111 S. Ct. 630, 112 L. Ed. 2d 715 (1991). Any remaining segregative or discriminatory aspects of the school system must be eliminated "root and branch" Green v. County Board of New Kent County, 391 U.S. 430, 438, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968).

 In United States v. Fordice, 120 L. Ed. 2d 575, 112 S. Ct. 2727, 2735-36 (1992), the Supreme Court elaborated on the concept of a vestige of segregation in the context of desegregating state-run institutions of higher learning. The Court explained:

 
Our decisions establish that a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation . . . [the task is to examine] a wide range of factors to determine whether the State has perpetuated its formerly de jure segregation in any facet of its institutional system . . . If policies traceable to the de jure system are still in force and have discriminatory effects, those policies too must be reformed to the extent practicable and consistent with sound educational policies.

 In Freeman, the Court emphasized the relationship that must exist between an alleged vestige and the original constitutional violation. The Court stated,

 
The vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal ...

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