The opinion of the court was delivered by: LEONARD B. SAND
HONORABLE LEONARD B. SAND, U.S.D.J.
In response to the efforts of the Yonkers Board of Education ("YBE") and the Yonkers Branch, NAACP (collectively, "plaintiffs") to add as defendants the State of New York, the State Board of Regents, and various other State education officials (collectively, "the State"), as well as the Urban Development Corporation ("UDC") and its director, this Court has held a number of hearings and issued several opinions, familiarity with which we assume herein. See United States v. Yonkers, 833 F. Supp. 214 (S.D.N.Y. 1993) (holding that vestiges of segregation persist in the Yonkers Public School System); United States v. Yonkers, 1992 U.S. Dist. LEXIS 10059, No. 80 Civ. 6761, 1992 WL 176953 (S.D.N.Y. July 10, 1992) (denying the State's motion for summary judgment); United States v. Yonkers, 1989 U.S. Dist. LEXIS 8796, No. 80 Civ. 6761, 1989 WL 88698 (S.D.N.Y. August 1, 1989) (denying the State's motion to dismiss), appeal dismissed, 893 F.2d 498 (2d Cir. 1990).
Following the last determination as to vestiges, the Court has conducted an exhaustive inquiry
into the question of liability of the State and the UDC for the condition of unlawful de jure segregation which this Court has previously found to exist in the Yonkers Public School System. United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055, 100 L. Ed. 2d 922, 108 S. Ct. 2821 (1988).
By consent of the parties, there was established as a cut-off date for purposes of this inquiry the date of this Court's November, 1985 Opinion holding the City of Yonkers liable for the segregated conditions the Court found to exist. The virtue of the 1985 cut-off date is, of course, that it enables greater utilization of the record compiled in the original liability proceedings and permits the question to be posed whether the Court would have found the added State defendants to be liable had they been named as parties in the original proceedings. There was reserved to the parties the right to present evidence concerning the period November, 1985 to date as part of a subsequent remedy proceeding, should such be deemed appropriate.
The Court has gathered from the parties, especially from counsel for the NAACP, who proffered evidence concerning post-1985 events, that any such evidence would be of a cumulative nature and not qualitatively different from the vast submissions already made. Such evidence, while perhaps pertinent to remedy, would seem to have little impact on questions of liability. We have therefore proceeded to determine questions of State liability on the basis of the present record. If a party is of the opinion that post-1985 evidence would alter any of the legal or factual conclusions set forth in this Opinion, and wishes for that reason to reopen these proceedings, the Court should be so advised in writing no later than 20 days from the date of this Opinion. The writing should set forth a description of the evidence that the party would seek to introduce and the reasons why it is believed that such additional evidence would lead to a change in the rulings made herein.
THE CONTENTIONS OF THE PARTIES
The YBE and NAACP contend that the State contributed to the segregated status of the Yonkers Public Schools in several ways. The major emphasis has been on the alleged failure of the State officials primarily charged with education duties, i.e., the members of the Board of Regents, the Commissioner of Education, and representatives of the Department of Education of the State of New York ("SED"), "to execute [State] education policy on racial integration and in impeding the implementation of that policy by local school officials in Yonkers." Yonkers Board of Education's Post-Trial Brief on State Liability Issues ("YBE Post-Trial Brief") at 2. Further, it is claimed that the State "unlawfully established an 'explicit racial' classification by singling out the racial integration policy as the one State education policy that would not be executed in accordance with the normal process of governance and decision making for education in New York State." Id. Independently of these grounds for the imposition of liability, the YBE and NAACP contend that the State is liable because of its participation in the development of housing in Yonkers which had a "known and foreseeable segregative effect on the public schools of Yonkers." Id. at 2-3.
The State asserts various defenses to these charges, including those of sovereign immunity and other jurisdictional defects. With respect to the housing claims, the State raises the defenses of statute of limitations and laches. On the merits, the State asserts that this case is controlled by Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), cert. denied, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978), and that the YBE and NAACP's claims that the State could and should have more aggressively pursued efforts to end segregation have already been rejected as a basis for asserting liability against the State. The State further asserts that the YBE and NAACP have failed to prove that the actions of either the UDC or the State defendants with respect to housing caused segregative consequences to the Yonkers Public School System. The City of Yonkers supports the position of the YBE and NAACP that the State is liable for contributing to such conditions of segregation which the Court has found to exist in Yonkers.
Having reviewed the entire record, the Court finds there to be ample evidence supporting the plaintiffs' contentions regarding the nature of the State's desegregative posture prior to 1985. Our specific factual findings are outlined directly below. In a later section, we will explain why the facts, as found, nonetheless do not provide a basis for holding the State liable as a constitutional joint tortfeasor under 42 U.S.C. § 1983, and why we do not reach the merits of possible State liability under The Equal Educational Opportunities Act of 1974, 20 U.S.C.A. § 1701 et seq. (West 1990).
There can be no doubt that the State was aware early on of the existence of at least de facto segregation in the Yonkers Public Schools. The record in this area begins with a February, 1968 letter from Yonkers resident Ruth Lowe to then-State Education Commissioner James E. Allen, informing him that
Yonkers public schools really need investigation -- especially those in the predominantly Black ghetto areas. School 19 is a perfect example. This school has de facto segregation. Additionally, areas have been gerrymandered to keep this school segregated. . . . Something should be done to break up the All White and All Black schools of Yonkers. Can you do anything?
YBE Exh. 16-20. Commissioner Allen's assistant, Wilbur Nordos, wrote Ms. Lowe back that it was his hope that his division -- the Division of Intercultural Relations, which at the time had the primary responsibility for promoting racial integration in New York schools -- could "be of help to the school authorities in Yonkers in working toward a reduction of racial imbalance in the schools of that City." Id. Whether intended to be that help or not, SED staff member Norman Kurland showed up in Yonkers several months later, telling a Yonkers audience that, from the data available, it was evident that
there is great inequality in the schools of Yonkers. In the six schools with 31 percent or more Negro students, and the greatest concentration of Negro students in the City, we find these schools to be persistently below the minimum competence level. . . . With only 11 percent of Negro student[s], racial balance can be achieved easily. Right now they are concentrated into six schools. A more integrated system is most effective.
YBE Exh. 16-21 at 1, 4; see also Transcript of Trial Proceedings Dated April 20-21, 26-28, May 2-4, 9-12, 16-18, 23-25, 1994 ("Tr.") 387-89 (Siragusa).
During the years 1970-80, the SED formed a clearer picture of the segregative conditions in the Yonkers schools. In June, 1970, Commissioner Ewald B. Nyquist wrote Charles Curran, President of the YBE, that nearly one-fourth of the schools in Yonkers were at a 10% or greater variance from the district-wide average number of minority group students; Nyquist then reminded Curran of the Board of Regents' "recommendation" that student bodies reflect a cross-section of the entire school district, and requested that Curran report within one month on the steps being taken to eliminate segregation. YBE Exh. 16-32. In 1971, Yonkers was recognized as a potential "trouble-spot" that could benefit from "action" to reduce racial imbalance. YBE Exh. 16-44 at 4. When SED staff went to work on a comprehensive plan for school desegregation, pursuant to which the State would intervene in school districts exhibiting racial imbalance, Yonkers appeared as the second priority on a list of districts to be addressed. YBE Exh. 16-62.
When the SED was working with a task force in Yonkers to facilitate funding for school desegregation during the years 1975-76, it acknowledged that "Yonkers is the fourth largest district in the State. It is substantially segregated." YBE Exh. 16-71 at 2; see also Deposition of Leroy L. Ramsey, Dated May 3, 1990 ("Ramsey Dep."), at 29-31, 42. Finally, Gordon Ambach, Commissioner of Education from 1977 to 1987, testified that he had continuing knowledge while Commissioner of the racial imbalance in the Yonkers schools. Tr. 1447 (Ambach).
In addition to knowing that segregation existed in the Yonkers schools, the SED can fairly be charged with knowing that Yonkers, if left to its own devices, was not going to remedy the segregation voluntarily. As will be discussed more fully below, there were two moments when self-initiated reform from within Yonkers seemed possible: the period 1970-71 and the period 1975-1978. In both instances, local residents in Yonkers opposed local reform; in both instances, the local reform impulse petered out; and in both instances, SED personnel were aware that no progress had been made. See YBE Exhs. 16-36; 16-46B at 29; Sobel Dep. at 121-27, 181-83, 191; Ramsey Dep. at 58-60, 80-84; Tr. 1448-49, 1453 (Ambach). While SED personnel may have hoped that Yonkers officials would make a "real demonstration of good will and effort" in a desegregation campaign, YBE Exh. 16-46B at 29, they had hard evidence before them indicating that such cooperation would not be forthcoming.
The closer question regarding the extent of the State's knowledge is whether the State was aware of the fact that the segregation in the Yonkers schools was de jure rather than de facto. The State clearly knew that the Yonkers schools were segregated; but did it know that the segregation was due to the intentional segregative practices of Yonkers officials? Several former State education officials testified that they themselves did not have such knowledge. Ramsey Dep. at 65-66; Tr. 1468 (Ambach). Indeed, it was suggested that State education personnel generally did not inquire into whether any given instance of school segregation in New York was de facto or de jure because they did not need to know: it was thought that the segregation of students along racial lines deserved to be combatted whatever its cause, since it posed an inherent threat to the quality of elementary and secondary school education. Ramsey Dep. at 65-67; see also YBE Exh. 4-15, "Special Message From the Commissioner," Dated June 14, 1963 ("Public education in such a situation [of racial segregation] is socially unrealistic, blocking the attainment of the goals of democratic education . . . whether the situation occurs by law or by fact") (emphasis added). It is also to be noted that the statistics relied upon by the SED to inform itself of the racial composition of individual schools and districts, see supra note 4, apparently did not disclose the cause of the racial breakdown. Tr. 2724-25 (Griffith).
Nevertheless, the Court finds that the State defendants were aware of circumstances that should have alerted them to the likelihood that Yonkers had a substantial problem of unlawful segregation in its schools. The Court further finds that if in fact the State defendants were not so alerted, it was because they themselves chose to remain ignorant.
To begin with, SED officials knew that de jure segregation had been found to exist in New York State in the past, and that it was therefore not unthinkable that it should exist there again at some point. See YBE Exh. 3-8c at 4, "A Review of the Recent Legal History of School Desegregation as Prepared by the Office of the Counsel, New York State Education Department," Dated September 12, 1969 ("One Court found that the New Rochelle school district in our own State was acting unlawfully when it gerrymandered attendance zone lines so as to perpetuate a high degree of racial imbalance . . . ."). There is also evidence that SED officials were aware as early as the mid-197O's that there was a substantial overrepresentation of minority students in Yonkers special education classes -- a state of affairs that could hardly be explained by the usual adventitious factors, such as housing patterns, which produce de facto segregation and which are constitutionally neutral. See YBE Exhs. 16-60 at 7; 16-85; 17-20 at 3; Campbell Dep. at 74-77; Ramsey Dep. at 67-69; Tr. 1008-13, 1066-67 (Batista); Tr. 1760-63, 1774 (Cox-Gerlock).
Finally, there is evidence that some SED staff knew during the mid-to-late 1970's that Yonkers was planning to build subsidized housing in a way that would aggravate segregation. See Sobel Dep. at 223.
Yet, despite these various warning signals, there is no evidence that SED officials ever took any steps to investigate the causes of racial segregation in the special education classes, or, for that matter, the causes of the increasing segregation in the regular classes. The Regents, for one thing, appear to have studiously avoided discussing the issue of school segregation after about 1975. See Tr. 920-21 (Keyes); Tr. 2421-23 (Carr); Tr. 2625, 2627-28 (Griffith); Tr. 2782-83 (Genrich). And the sole inquiry that is documented in the record -- a report by SED Counsel Robert Stone to Commissioner Ambach in 1980 on whether de jure segregation on the basis of race existed in any school district in New York -- was superficial and did not represent a serious inquiry into whether de jure segregation existed in New York schools or not.
On the whole, the Court finds that State education officials chose to assume that the segregation they were tracking in Yonkers was de facto rather than de jure, and that they chose to make this assumption not only without any positive foundation for it but in the face of actual conflicting evidence relating to special education and subsidized housing construction. Moreover, we find no basis in the record for the suggestion that it was the State's commitment to the cause of rooting out all segregation, whatever its type, which made it blind to the actual causes of the segregation in the Yonkers schools.
In sum, the Court finds that the State knew about the segregation that existed in the Yonkers Public Schools, knew that Yonkers would not on its own take the steps necessary to end the segregation, and either knew or reasonably should have known that the segregation was de jure rather than de facto.
2. What the State Had the Power to Do
The next question is: given its (actual or constructive) knowledge of illegal racial segregation in the Yonkers schools, what, if anything, could the State do about it? The answer is: a great deal. New York law has prohibited de jure segregation since 1900. See N.Y. Educ. L. § 3201(1) (McKinney 1995). As early as 1960, the New York State Board of Regents issued a policy statement urging school districts to take the steps necessary to end de facto desegregation in New York's public schools. YBE Exh. 3-1. The Regents reaffirmed that position in a series of subsequent racial integration policy statements. See YBE Exhs. 3-7; 3-12; 11-17; 17-44. These policy statements could have been enforced by the Commissioner in several different ways.
In a similar vein, § 310 of the Education Law gives the Commissioner the authority to institute, either on his own initiative or at the behest of a private citizen, quasi-judicial proceedings designed to enforce State education policies.
Such policies would undoubtedly include the objectives enunciated in the Regents' racial integration policy statements. See Tr. 2236-39 (Stone); Tr. 2819 (Genrich).
As a third option, the Commissioner and the Regents could have taken a regulatory approach to the problem of continuing segregation in the schools. That is to say, the Commissioner and the SED, working with the approval of the Regents, could have issued regulations requiring school districts to develop and submit plans for desegregating their schools, and could then have set up an enforcement apparatus consisting of site visits and compliance reports to ensure that such plans were in fact being carried out. See Tr. 2248-51, 2261-62 (Stone); Tr. 2781 (Genrich) (the Regents looked to the Commissioner to instruct school districts to develop desegregation plans within a certain time frame).
As a fourth option, the Commissioner could have used his authority under § 408 of the Education Law to ensure that the building or purchase of new school facilities by local districts advanced the goal of school desegregation, rather than hindered it. Section 408 provides that before any school building may be constructed or purchased, the plans and specifications for it must be submitted to and approved by the Commissioner. N.Y. Educ. L. § 408(1) (McKinney Supp. 1995). The Commissioner is not to grant such approval, however, unless the plans submitted reflect "reasonable consideration" of the manner in which the proposed school fits into "a comprehensive, long-term school building program." Id. § 408(3) (McKinney 1988). No reason was offered by the State defendants as to why the Commissioner could not have taken the position that new school proposals that did not further desegregation did not fit well into "a comprehensive, long-term school building program," and should therefore not be approved.
Finally, as a fifth option, the Commissioner and his staff could have adopted the time-honored strategy of using the carrot rather then the stick: they could have recommended to the legislature that funding proposals for the benefit of local school districts be made contingent upon the adoption of desegregation programs.
We reject this entire line of argument. None of these alleged obstacles to State enforcement action is more than a rationalization to justify inaction. The withholding of general state financial aid from disobedient school districts was perhaps too strong a deterrent, but the State had threatened at least one school district with it in the past -- ironically, Yonkers -- and with considerable success.
Had the Commissioner chosen to proceed sua sponte under § 310, he would have labored under no disadvantage or difficulty that he did not already face in the § 310 proceedings he routinely brought at the request of private citizens. The measure of acceptable levels of integration would have been exactly what it was in the non-sua sponte cases, that is, the Regents' racial integration policy statements, Tr. 2236, 2238-39 (Stone); and, guided by the statistics annually collected by the SED, the Commissioner would have had all the information he needed to determine whether a given school district exhibited an unacceptable degree of racial imbalance. See supra note 4.
As for the feasibility of general regulations in the desegregation context, it was conceded at trial that State regulations oftentimes require schools districts to prepare plans for dealing with educational conditions that vary from district to district. Tr. 1506-07 (Ambach); see also Tr. 2250 (Stone). There is no reason to believe that the State could not have issued regulations requiring each school district, including Yonkers, to submit a plan detailing the racial makeup of its school population and outlining the steps it planned to take to remedy any unacceptable imbalance. Indeed, in 1963, then-Commissioner Allen effectively did just this, albeit in the form of a letter rather than a regulation. YBE Exh. 4-15. Finally, the record shows that the State has not hesitated to intervene in local school districts in instances where only state money is involved. See Tr. 1626 (Raymond) (state intervention in the area of physical education); Tr. 1768 (Cox-Gerlock) (state intervention in the area of guidance). The record does not support the State's claim that intervention occurred only when the State was monitoring the expenditure of federal funds.
By all accounts, the SED is one of the most activist state educational bodies in the country. See, e.g., Tr. 1773 (Cox-Gerlock). It vigorously monitors and regulates many different aspects of education, including special education, bilingual education, vocational training, achievement scores, dropout prevention, and school building construction. Contrary to the defendants' characterization, the SED has not subscribed to what one might call a "laissez-faire" approach to educational oversight. When, for example, a fatal football accident occurred in Yonkers, the State's interest, involvement, and presence were prompt and keenly felt. Tr. 1618-24 (Raymond). To argue, then, that when it came to enforcing its own school desegregation policy, the State somehow came up short in supervisory authority, is singularly unpersuasive.
The Court finds that the State had several effective means for compelling local compliance with its racial integration policy during the years at issue in this litigation. If the State did not in fact force compliance, it certainly was not because it lacked the authority or practical power to do so.
3. What the State Did (or Did Not Do)
From the moment in the late 1960's that the State became aware that conditions of racial imbalance were developing in the Yonkers schools, it was in a position to require Yonkers to undertake remedial measures. It never took advantage of that position. The State never threatened to withhold state financial aid from Yonkers or to remove those Yonkers school officials who opposed efforts to integrate the Yonkers schools; it never initiated sua sponte a § 310 proceeding designed to investigate and remedy the segregative conditions in the Yonkers schools; it never wrote regulations addressing the issue of school desegregation; it never directed Yonkers officials to consider the segregative impact of new school construction or acquisition before approving their submitted plans and specifications; and, it let pass opportunities to condition state aid to the schools on local desegregation efforts, see, e.g., YBE Exh. 14-7; Tr. 1528-32 (Ambach). The State did not, in short, require anything of Yonkers in the area of school desegregation. The one instance in which State education officials seemed prepared to intervene affirmatively in Yonkers and organize and/or compel desegregation efforts was in 1971-72, when Commissioner Nyquist put his staff to work on a "master plan" for desegregating the most racially imbalanced school districts. See YBE Exhs. 16-46(A),(B),(D),(E); 16-50; 16-62. The master plan never materialized, however; it was shelved for lack of State funding. Tr. 178-79 (Sheldon).
Rather than act, the State waited. It waited for private citizens in Yonkers to invoke the State's help by filing § 310 petitions, see Ramsey Dep. at 89; Tr. 1451-55 (Ambach), but no petition was ever filed. It waited for Yonkers to make voluntary efforts to desegregate its schools, and asserts that it stood ready with offers of money and technical assistance to aid such efforts. Ramsey Dep. at 90-91, 93-94; Tr. 1454 (Ambach). But it never forced the issue. When, for example, the Yonkers education community appeared ready in 1970-71 to take steps to end the segregation in the schools, YBE Exh. 17-17, the SED dispatched staff member Morton Sobel to talk to the local PTA groups. Sobel's message was relatively soft: Yonkers is a segregated district; segregation is not good for children; it is up to you to do something about the condition in your schools. Sobel Dep. at 187-88; Tr. 404-05 (Siragusa). When Yonkers did nothing about the condition in its schools, the State dropped the issue. See Sobel Dep. at 191-93; Tr. 190 (Sheldon).
In the fall of 1975, when the Yonkers education community again showed an inclination to undertake reforms, the State reappeared on the scene. This time, however, it could not even deliver on its promise to provide meaningful financial aid for the local reform effort. YBE Exhs. 17-79; 17-81; Tr. 348 (Ross); Tr. 1155-56 (Jacobson). And, when this second effort ultimately fizzled out in 1977-78, in no small part due to the State's failure to contribute funds, the State once again said and did nothing. See Ramsey Dep. at 92-94; Tr. 1448-52 (Ambach).
Not even when the federal government intervened in Yonkers in 1980, alleging violations of the federal civil rights laws, did the State seek to hold Yonkers accountable for its long-standing violation of the State's school desegregation policy. Tr. 1634 (Raymond). The most the State did was to offer to procure federal funding for Yonkers to help pay the cost of complying with the federal desegregation order, and to provide technical assistance in the development of a desegregation plan. Defendants' Exh. XX; YBE Exh. 17-131; Ramsey Dep. at 82-83. When the YBE ultimately decided to fight the federal order, the State withdrew these offers of aid, YBE Exh. 17-134, and was not heard from in the matter again. The State even let pass an opportunity to cajole Yonkers into complying with the federal desegregation order when, in 1984, it refused to condition its financial bailout of Yonkers on the City's ratification of a consent decree with the federal government. See YBE Exh. 17-156; Tr. 1632-33 (Raymond).
In sum, with all of its authority and knowledge of the segregative conditions in the Yonkers schools, the State essentially adopted a wait-and-see attitude. It asserted a willingness to help Yonkers help itself, but it would not force Yonkers to change. Thus it occurred that in Yonkers, where local support for desegregation was minimal and no citizen-initiated § 310 proceeding was ever commenced, desegregation simply did not take place until it was compelled by order of the federal court.
At this point, it is important to make clear what factual findings the record does not support. There is no evidence that State education officials ever undertook affirmative actions to preserve segregation in the Yonkers schools, or that they indicated to anyone in Yonkers, either tacitly or otherwise, that they thought that segregation in the schools should be preserved. There is no evidence that State education officials ever actively impeded Yonkers officials from taking steps on their own to remedy the school segregation. There is no evidence that State education officials ever communicated to anyone in Yonkers that they would purposefully "look the other way" should Yonkers decide to continue to be in violation of State desegregation policy. There is no evidence that State education officials ever adopted a policy that indicated specific approval of the manner in which Yonkers was managing the racial makeup of its schools. Finally, there is no evidence that, had a Yonkers citizen filed a desegregation § 310 petition, the State would not have responded to that petition promptly and fairly. Indeed, the record supports the finding that the Commissioners of Education in most instances enforced the racial integration policy in connection with proceedings brought before them by private citizens under § 310.
4. Why the State Did Not Intervene in Yonkers
During the 1960's and early 1970's, State education officials actively set about to bring an end to the racial imbalance that existed in the New York public schools. The Regents strongly endorsed school desegregation in the racial integration policy statements of 1960, 1963, 1968 and 1972. YBE Exhs. 3-1; 3-2; 3-7; 3-12. The SED, under Commissioner Nyquist, did not hesitate to enforce the racial integration policy in connection with § 310 appeals from private citizens. In each of these proceedings, Commissioner Nyquist found that de facto segregation existed and sought to institute remedial measures. Moreover, the SED under Nyquist took steps to formulate a comprehensive plan of affirmative state intervention in school districts that exhibited a high degree of de facto segregation. YBE Exhs. 16-46(A),(B),(D),(E). The activist tenor of the SED's position during these years is perhaps best captured in a report on State integration initiatives written by an SED staff member in 1972. Concerning the Albany school district, the staff member wrote, "no citizen has ever appealed for the correction of racial imbalance, but Albany should not for that reason be neglected." YBE Exh. 16-50 at 4.
By 1969, however, opposition to non-voluntary means to achieve racial integration in the schools -- and to racial integration itself -- had swelled to the point where the New York State Legislature enacted Chapter 342, a law that prohibited State education officials, as well as local school districts with appointed school boards, from assigning students for the purpose of achieving racial balance or of taking other desegregative actions. Although the statute was ultimately declared unconstitutional, as violative of the Equal Protection Clause, see Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970) (three judge court), aff'd, 402 U.S. 935, 29 L. Ed. 2d 105, 91 S. Ct. 1618 (1971), the attitude of the State Legislature was clear. Indeed, even after Chapter 342 was struck down, the Legislature continued to debate and pass bills and resolutions that were similar to Chapter 342 in their purpose and intended effect. See, e.g., YBE Exhs. 7-21(A)-(E); 7-22; 7-28; 7-37.
Following the invalidation of Chapter 342, the State took measures that had the cumulative effect of undermining efforts to reduce school segregation. In 1971, the Legislature eliminated the Racial Balance Fund, which was the source of funding to assist communities in undertaking the expensive task of desegregating their schools, and refused each year thereafter to reinstate the Fund despite annual requests to do so from State education officials. The elimination of the Fund deprived State officials of one of the few positive inducements they had to encourage local acts of desegregation, and thereby weakened their efforts to implement the Regents' racial integration policy. YBE Exh. 16-62 at 2; Campbell Dep. at 43-45; Tr. 90-91 (Sheldon).
Changes were also taking place in the composition of the Board of Regents due to the accession to the Board of new Regents, interviewed prior to appointment by legislators (a new practice), who were known to be hostile to vigorous desegregation efforts.
In February, 1974, a law was passed that shortened the Regents' term of office from fifteen to seven years in order to make them more "accountable" to elected officials and their constituents. YBE Exh. 10-13; Tr. 2545 (Griffith). In the summer of the same year, the Regents, prodded by criticism of Commissioner Nyquist's vigorous desegregation efforts, see, e.g.,, YBE Exh. 10-15, undertook a reexamination of their 1972 racial integration policy statement. That reexamination resulted in revised policy statements that diluted the pro-desegregation force of the 1972 statement.
In at least two instances, individual Regents interceded in Commissioner Nyquist's § 310 proceedings to plead the case for less drastic desegregation orders. See YBE Exhs. 12-20; 12-21; Defendants' Exhs. 6H; 6I. And the Regents as a whole, out of a concern to rein in Nyquist's desegregation efforts, see YBE Exh. 12-25 at 1; Defendants' Exh. 6K at 1, 3, lobbied for legislation providing for stricter judicial review of the Commissioner's § 310 orders. YBE Exh. 12-71. That legislation became law in 1976.
Finally, in November, 1976, the Regents fired Commissioner Nyquist. The YBE and NAACP sought to prove at trial that he was fired because of his vigorous stance on integration, while the State argued that relations between Nyquist and the Regents had so deteriorated that his continued service was unacceptable. Indeed, there is ample evidence that Nyquist's dealings with some Regents was high-handed and offensive and that, to a considerable extent, he precipitated his own removal. In all, we find that the plaintiffs have not proven that Nyquist would not have been fired but for his views on integration. We do find, however, that his views on this subject were a substantial factor leading to his discharge.
In the years following Nyquist's removal, the furor over desegregation died down to a considerable extent. And with good reason: Nyquist's successor, Gordon Ambach, was not presented with any § 310 appeals from private citizens; and, in accordance with the practice of his predecessors, he did not initiate any § 310 proceedings sua sponte. Tr. 1412 (Ambach). With respect to the § 310 appeals he inherited from Commissioner Nyquist, there is evidence to suggest that Commissioner Ambach eventually issued orders that were less stringent, from a remedial standpoint, than the orders initially fashioned by Commissioner Nyquist. See Defendants' Exhs. C-27 & C-28 (Ambach extended by one year the time that the Rockville Centre school district had to begin integrating its elementary schools; Nyquist had previously denied an extension); C-46 & C-47 (Ambach allowed Syracuse to delay the integration of three elementary schools).
There is little doubt in the Court's view that the State's gradual retrenchment from its once strong school desegregation policy, as just outlined, was motivated by a growing antipathy to desegregation on the part of the New York State Legislature. To be sure, the debate that was being conducted during these years was cast in terms of being for or against busing. The evidence is clear, however, that "busing" was a symbol for integration. Busing, after all, was common in many areas of the State for reasons having nothing to do with matters of race (e.g., for the purpose of school centralization programs). While there were those who raised good-faith questions as to the conditions under which busing should take place, the furor over busing per se cannot be explained on any non-racial grounds.
What is more, this growing antipathy to desegregation did not go unnoticed by the SED officials charged with promoting school desegregation. There was testimony, which the Court finds credible, that these SED officials regarded the Regents' revisions of the 1972 policy statement, their support of stricter review of the Commissioner's § 310 orders, and their firing of Commissioner Nyquist as part of an effort to retreat from the commitment to school desegregation. Campbell Dep. at 48-49, 101-02; Tr. 147-48, 212 (Sheldon); Tr. 884-86, 916-17 (Keyes). There was testimony that SED officials perceived the Legislature to be making appointments of Regents with the racial integration policy in mind. Tr. 108-09 (Sheldon). And, perhaps most importantly, there was testimony that these impressions on the part of SED officials had the effect of making them slow down and proceed more cautiously in their desegregation efforts. See, e.g., Tr. 916-19 (Keyes).
5. The Effect on Yonkers of the State's Failure to Intervene
The State's failure to intervene in Yonkers impacted the City in several ways. The most obvious impact, of course, is that Yonkers was not forced to desegregate its schools. There is every reason to believe that had the State brought its coercive powers to bear in Yonkers, Yonkers would have complied with its directions. See Deposition of Gerald L. Freeborne, Dated October 30, 1990, at 103;
Tr. 1625-28 (Raymond); Tr. 2249 (Stone); Tr. 2784 (Genrich).
The second impact on Yonkers was more subtle, but equally real. There is evidence that when the State failed to intervene in Yonkers, either coercively or by way of positive inducements, it altered the balance of power between the forces in Yonkers favoring reform and the forces in Yonkers opposing reform. For example, the response to SED official ...