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October 18, 1995

GEORGE ARTHUR, et al., Plaintiffs, -vs- EWALD P. NYQUIST, et al., Defendants.

The opinion of the court was delivered by: CURTIN

 CURTIN, District Judge

 This court has been struggling with the issues in the Buffalo School Case since 1974. After a trial, the court found the defendant Board of Education ("the Board"), the City of Buffalo ("the City"), and the State of New York liable in a decision filed on April 30, 1976. Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y. 1976). The decision was affirmed in part by the United States Court of Appeals for the Second Circuit. Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1976). The court's finding of liability on the part of the Board and the City was affirmed, and that on the part of the State of New York was reversed.

 In a decision to be filed in several weeks, the court will set forth in detail the history of the progress of the remedy phase of this case. But at the present time, the court will turn to the issues which require immediate resolution.

 There are several applications pending. Many papers have been filed in support of each application, but the issues presented may be summarized as follows.

 1. There are various motions by the City and other parties for a declaration of unitary status, or partial unitary status, under the principles laid down in Freeman v. Pitts, 503 U.S. 467, 118 L. Ed. 2d 108, 112 S. Ct. 1430 (1992), and Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 112 L. Ed. 2d 715, 111 S. Ct. 630 (1991).

 2. The Board has submitted an Order to Show Cause why it should not be authorized to proceed to operate its schools in the 1995-96 school year at a funding level that it claims will not permit compliance with this court's desegregation orders to the extent of compliance in 1994-95.

 3. The plaintiffs have filed a cross motion for an order directing the City to provide, in the 1995-96 school year, certain funds necessary to maintain programs that the plaintiffs consider crucial to the continued success of the desegregation program.

 In Freeman v. Pitts, the Supreme Court reemphasized that "the duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system." 503 U.S. at 485. In supervising a desegregation case, a district court's authority is limited: "A remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation." Id. at 489. "In the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations. 503 U.S. at 490. During the final phases of a desegregation case, "the District Court should address itself to whether the Board ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination have been eliminated to the extent practicable." 503 U.S. at 492 (quoting Dowell, 498 U.S. 237, 249-50). "Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system." 503 U.S. at 490. As the Supreme Court stated:

the court's end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution. . . . ("The federal courts in devising a remedy must take in account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.") . . . In Dowell, we emphasized that federal judicial supervision of local school systems was intended as a "temporary measure." . . . Although this temporary measure has lasted decades, the ultimate objective has not changed--to return school districts to the control of local authorities. . . . [A] court [must] provide an orderly means for withdrawing from control when it is shown that the school district has attained the requisite degree of compliance. A transition phase in which control is relinquished in a gradual way is an appropriate means to this end.
. . .
In considering the[] factors [which must inform the discretion of the court in ordering partial or complete withdrawal of its supervision of a desegregation case], a court should give particular attention to the school system's record of compliance. A school system is better positioned to demonstrate its good-faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations. And, with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and efficacy of various remedies can be evaluated with more precision.

 503 U.S. at 489-92.

 In this case, the City urges that unitary status has been achieved in the areas of faculty and staff hiring, student assignment, and transportation, and that as a result it should be dismissed as a defendant. The Board agrees that unitary status has been achieved in most areas, but maintains that there should be no such finding in the absence of a good-faith commitment from the City that it will meet its obligation to fund the School District to the extent necessary for the District to meet its obligations to the children attending the Buffalo schools, including the obligation to maintain a high-quality desegregated education program. The plaintiffs oppose a finding of unitary status at this time, believing that such a finding would be premature.

 In accordance with the guidance of Freeman and other Supreme Court cases, I have carefully considered the detailed record supplied in this case, and the good faith and responsibility of the Board, the City, and the other participants. I have concluded that unitary status has now been attained, and that supervision of the School District shall be returned to the Board under terms which will be outlined in this order. Because of the need to provide immediate financial assistance to the Board, I will issue a summary order now, to be followed by a more detailed explanation for the declaration of unitary status as soon as is practicable.

 At this point, I should briefly review the history of this litigation after the original liability order was filed on April 30, 1976. Within a few weeks, on May 18, 1976, the Board filed what was known as the "Phase I" plan. The plan provided that ten schools should be closed and their population merged with other schools in the district. This had the immediate effect of enhancing racial balance and also improving educational efforts, because the schools which were closed were either too small or in poor condition.

 Two magnet schools, the Waterfront School and City Honors, were opened. The transportation system was instituted, and the school staff immediately addressed the difficult problems connected with the practicalities of transportation, and the provision of suitable lunchroom and other facilities in the schools so that the movement of students could be more easily facilitated.

 Phase II was filed and approved on January 5, 1977. This plan included the implementation of eight magnet schools: Academic Challenge, Build Academy, Campus East, Campus West, Follow-Through, Montessori, Buffalo Academy for the Visual and Performing Acts, and Buffalo Traditional School. There were three so-called mini-magnets opened: School 19, with a Native American program, and School 33, with a Spanish-English program. East High School was converted to Buffalo Vocational Technical Center. There was an addition to Phase II in August 1979, when four more schools were closed. In the summer of 1980, Phase III was approved by the court. This provided that ten additional schools be closed, six Early Childhood Centers were opened on a voluntary basis, and four new magnets -- Futures Academy, Martin Luther King, Multi-Cultural Institute, and the Science Magnet -- were opened. The Early Childhood Centers provided education to students from pre-K through Grade 2. The academies provided education for students in Grades 3 through 8. In May 1981, the court approved Phase IIIx, which provided for clusters of Early Childhood Centers with the Academies.


 When the court made its original liability decision in 1976, it found that in the 1973-74 school year, 55 of the City's 77 elementary schools, 5 of the 6 middle and junior schools, and 7 of the 13 high schools were 80 to 100 percent majority or minority race students. The school population was 61,000, of whom 53 percent were majority and 46 percent were minority. The record indicates that soon after the order was filed, the Board began to assign students in a fashion which brought about integration in most of the City's schools. This balance continued throughout the years. Furthermore, in its assignment of teachers to the schools, the Board attempted to fashion an orderly mix of majority and minority teachers. That is not to say that the plan was always perfect. With ...

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