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October 8, 1997


The opinion of the court was delivered by: SAND


 This Opinion and the Order entered this date address and resolve all of the matters relating to the Yonkers Public Schools ("YPS") submitted to this Court following the remand of this case by the Court of Appeals for the Second Circuit. See United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996). *fn1"

 I. Liability (Vestiges)

 With respect to issues relating to State *fn2" liability for contributing to the segregation of the Yonkers Public Schools, the State sought to introduce evidence only on the issue of whether vestiges of segregation, which in 1993 this Court found to remain in the Yonkers Public School System, United States v. City of Yonkers, 833 F. Supp. 214 (S.D.N.Y. 1993) ("Vestiges Decision"), continue to be found in that system. (See Tr. Tel. Conference of 9/22/97, at 4.)

 A. Background

 In an opinion dated August 30, 1993, we wrote:

(1) We find that vestiges of segregation remain in the Yonkers Public School system.
(2) We find that many steps are being taken to address these vestiges including teacher training programs, utilization of innovative teaching techniques devised and tested elsewhere, efforts to increase parental involvement, development of magnet school programs, and similar efforts.
(3) We find that the steps being taken in (2) above are inadequate to eradicate vestiges of segregation "root and branch" and must be expanded and implemented in a manner which of necessity will entail the expenditure of additional funds. Not only must teaching techniques and curriculum be reexamined and redesigned to meet these needs, but the physical condition of the YPS must be restored and enhanced if a desegregation program which relies primarily on voluntary selection of magnet schools is to retain its accomplishments to date and attain its ultimate goal of a truly unitary school system.

 833 F. Supp. at 225.

 The Court did not at that time address "any questions relating to the State's liability for the existence of these conditions nor any question relating to the relative responsibility of the City and State." Id.

 Since the Vestiges Decision, issues as to the liability of the State were addressed by this Court and by the Court of Appeals which, in an opinion dated September 23, 1996, vacated our dismissal of claims against the State defendants and the U.D.C. and remanded to this Court for further proceedings. See 96 F.3d 600.

 We see no need to restate the reasoning or conclusions of our Vestiges Decision, full familiarity with which we assume. But that opinion is now over four years old, changes in the demography of the Yonkers school system have occurred (most notably an accelerated influx of Hispanic students, many with limited English proficiency, and the hiring of significant numbers of new teachers), and efforts to address vestiges have been ongoing. Therefore, the question of whether vestiges of segregation still exist in the Yonkers Public School System is one which the State was entirely within its rights to raise. The Court permitted the State to conduct discovery on this question and it has now been tried to the Court.

 B. The Trial

 The State's claim that vestiges of segregation have been eradicated was supported by the introduction into evidence of ten depositions and the testimony of Dr. Theresa Bucci. The thrust of this evidence and of the State's claims are that gaps in achievement scores between minority and majority students may be caused by conditions other than vestiges; that the written evaluations of Yonkers teachers by their superiors do not indicate that there is widespread dissatisfaction with teacher attitudes and proficiency, that certain remedial measures are in effect and are meeting with a degree of success and that the existence of a gap between minority and majority achievement levels is not unique to Yonkers.

 This last contention was based on a comparison by way of graph depicting the level of majority and minority test results in Yonkers and four other school districts in New York State. (See Trial Ex. A (Streeter Aff.).) These four other districts -- Freeport, New York City, New York City Community School districts 15 and 28 -- were selected by the State because they had overall enrollments of majority and minority students said to parallel those in Yonkers. The thrust of the State's claim was that disparities among the three racial/ethnic groups (Afro-American, Hispanic and non-minority) in terms of the proportion of students in each group who fail to meet the State Reference Point on State mandated Pupil Evaluation Program ("PEP") tests at the third and sixth grade levels was approximately the same in Yonkers and the four districts to which it was compared.

 The Yonkers Board of Education ("YBE") countered these claims by updating the evidence which it had presented in the 1993 procedure to demonstrate that standard test results of majority, Black and Hispanic students conducted since 1993 showed a continuation of the gap reflecting lower minority achievement. Disproportionate suspension rates, retentions, dropouts and referrals to special education have also continued to date. As to claims that achievement results may be impacted by factors other than vestiges, the YBE noted that the State had made no effort to overcome the multiple regression analysis utilized in the 1993 proceedings which this Court found demonstrated that race is a statistically significant factor in accounting for the disparity in reading and math scores "even after factoring out other possible causes." 833 F. Supp. at 221.

 Testimony introduced by the YBE also reflected the perception of Yonkers school principals and other supervisory personnel that some teachers' attitudes and expectations still too often reflect past stereotypes, e.g., some teachers calling more frequently on majority students seated in the center of the class while giving less attention to minority students.

 C. Findings as to Vestiges

 The parties are in disagreement with respect to which party has the burden of proof as to the continuation of vestiges. This Court has previously opined that in light of the procedural posture of this case the State bears this burden. We find, however, that it is not necessary to resolve this question because we find that the YBE has clearly demonstrated by a strong preponderance of the evidence that vestiges of segregation currently exist in the Yonkers Public School system. Although staff development programs and other remedial measures are attempting to address these problems, the evidence introduced by the YBE supports the conclusion that vestiges of segregation "root and branch" have not been eradicated.

 The fact that lower achievement scores for minority students was a phenomenon present in school districts other than Yonkers was specifically recognized in our 1993 Vestiges Opinion, 833 F. Supp. at 223, and does not alter the conclusions reached in that Opinion. The State offered no evidence which would make more meaningful a comparison between Yonkers and the four other districts whose test results were cited by the State. One does not know, for example, the extent, if at all, the other districts themselves suffer the vestiges of past segregation regardless of whether or not they were subject to a court decree. One does not know what a multiple regression analysis, which this Court relied on in its 1993 Vestiges determination, would disclose if applied to the raw data proffered as to the four other districts.

 In sum, we adopt and reaffirm the findings and conclusions of our Vestiges Decision. While remedial measures have been adopted on a limited scale because of funding constraints, they have not been adequate to eradicate vestiges of segregation.

 Further, we find that a causal relationship exists between the conduct of the State as reflected in the findings of fact contained in our prior decision on State liability, which findings of fact were affirmed by the Court of Appeals, 96 F.3d 600, and the existence of vestiges of segregation in the YPS. The continuing vestiges of segregation in the YPS are traceable to the prior dual school system that was established and maintained in substantial part by acts or omissions of the State. The State is, therefore, liable for eliminating segregation and its vestiges in YPS and therefore must fund a remedy to accomplish that goal.

 II. The EEOA Claims

 Following the remand of the Court of Appeals, we have considered whether the denial of equal educational opportunities may be remedied by a method or combination of methods that does not include busing. See 96 F.3d at 621. Although the making of such a finding may present significant problems in some contexts, it is clear to this Court, writing eleven years after initial adoption of a remedy order vis-a-vis the City and YBE and having the benefit of the experience of the intervening years, that busing was and remains an essential component of the remedy order. As we noted in our Vestiges Decision the swift "smooth and peaceful" desegregation which took place in the YPS within less than a year of the issuance of the initial remedy order (Educational Improvement Plan I ("EIP I")), "was brought about by instituting a voluntary magnet school program, including procedures for school selection by parents, busing and other similar measures." 833 F. Supp. at 216. No one familiar with the history of the YPS can seriously argue that busing was not a critical component of EIP I when it was adopted in 1986 and remains so today. In fashioning a remedy order hereunder, the Court proceeded in the light of this finding.

 The Court finds, pursuant to 20 U.S.C. § 1712, that the remedy called for in this Opinion and the Order seeks to impose and imposes only such remedies as are essential to correct particular demands of equal educational opportunity and equal protection of the laws. See 20 U.S.C. § 1712 (1988). Indeed, as noted herein, the EIP II provisions are specifically crafted to deal with vestiges of segregation remaining in the YPS.

 Although the YBE contends that § 1713 is inapplicable since it does not directly involve the transportation of students, (YBE's Proposed Findings of Fact at 59), the Court finds that it indirectly involves such transportation since it seeks to implement earlier Court orders which do call for student transportation. However, § 1713 provides no impediment to the Order entered herewith because the Court further finds that the remedies set forth in §§ 1713(a)-(e), have been utilized to the extent practicable in the YPS and that implementation of such remedies alone without the further provisions of EIP I and EIP II would not be efficacious in correcting the denials of equal educational opportunity and equal protection present in this case. Moreover, EIP II has been voluntarily proposed by the YBE, the appropriate educational agency pursuant to 20 U.S.C. § 1716. Whatever contrary views as to the voluntary nature of the YBE's plans this Court previously entertained, See 888 F. Supp. 591, 595 n.7 (S.D.N.Y. 1995), are inapposite in the present posture of these proceedings.

 Recognizing that the Court of Appeals already determined that the EEOA is applicable and would subject the State to liability with respect to vestiges of segregation, 96 F.3d at 619-21, the State urges that this question

should be revisited in light of the Supreme Court's subsequent decision in City of Boerne v. P.F. Flores, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (June 25, 1997), explicating the limits of Congressional enforcement powers under § 5 of the Fourteenth Amendment, and the EEOA should be declared unconstitutional and invalid.

 (State Defs.' Proposed Findings of Fact at 38.)

 The State argues that Boerne stands for the proposition that Congress has not been empowered by § 5 of the Fourteenth Amendment to "making a substantive change in the governing law," *fn4" and that the EEOA alters substantial law by doing away with the intent element which must be shown to substantiate an equal protection claim. Further, the State contends that in adopting the EEOA "Congress altered the substance of constitutional law by imposing this absolute, vicarious supervisory liability on each state without regard to the relationship established by each state itself between that state, its officials, and local educational authorities." (State Defs.' Proposed Findings of Fact at 42.)

 The Court finds the claim that EEOA is unconstitutional to be without merit. Boerne involved an attempt by Congress in the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq., to overturn a Supreme Court decision relating to the tests to be applied in determining the constitutionality of generally applicable laws said to impinge on religious practices. The EEOA was adopted pursuant to a Congressional declaration of policy (§ 1701) and pursuant to Congressional finding (§ 1702) to address the subject of transportation of students in light of the failure of the courts to establish clear and uniform standards. Unlike Boerne which was designed to reverse a specific Supreme Court determination, Congress in the EEOA was deferential to the courts stating "that the provisions of this chapter are not intended to modify or diminish the authority of the courts of the United States to enforce fully the fifth and fourteenth amendments to the Constitution of the United States." 20 U.S.C. § 1702(b).

 The Court finds no basis for the claim that EEOA is unconstitutional as contended by the State. (State Defs.' Proposed Findings of Fact at 46).

 III. Housing Issues

 There are three respects in which housing related issues impact on the presence of vestiges in the YPS and steps for their eradication.

 A. School Remedy vis-a-vis the State

 The facts establishing the State's knowledge that the U.D.C. was building housing in Yonkers which perpetuated and exacerbated the pattern of racial segregation in Yonkers have been fully established in prior proceedings See, e.g., 96 F.3d at 608. The interrelationship between housing and school segregation has also been adequately demonstrated. In concluding that the State is liable for vestiges of segregation in the YPS and in formulating a further school remedy order vis-a-vis the State, no further proceedings or findings are required. Indeed, the YBE advances no proposals specifically directed at housing issues.

 B. Housing Remedy vis-a-vis the State

 The City has filed an offer of proof seeking to introduce evidence concerning the status of the housing remedy order now in place and the need for State funding to implement the creation of integrative housing opportunities in Yonkers. The City's proposed order would call upon the U.D.C. to submit for consideration "a plan for the provision of resources to further completion of the requirements of the Housing Remedy Order." (Def. City of Yonkers' Post-Hr'g Mem. at 25.) The City agreed, however, with the suggestion of the Court that the issue of a housing remedy order directed to the State be deferred so as not to delay entry of a school remedy order. (Id.) The time exigencies with respect to a school remedy, i.e., the need for immediate action if corrective measures are to be in place for the next school year, and the issues discussed below, have led this Court to go forward with a school remedy order while briefly holding housing remedy order issues in abeyance pending further submissions by the parties.

 C. Housing Remedy vis-a-vis U.D.C.

 The Court of Appeals reversed the Court's dismissal of this case as against the U.D.C. holding that its conduct rendered it liable and remanded for a redetermination of whether the U.D.C.'s conduct constituted a "continuing wrong" so that the action against the U.D.C. was not barred by the statute of limitations. The NAACP, which brought the action against the U.D.C., urges this Court to find that the U.D.C. remains liable and proposes an order which would require the U.D.C. within sixty days to submit a plan "which will assist in the creation of affordable housing in areas outside those of minority concentration." (NAACP's Post-Hr'g Mem. at 15.)

 With respect to items B. and C. above, the Court finds that it needs more input from the parties. Some of the issues which the Court wishes to explore, touching upon both liability and remedy, are the following:

 (1.) As to the U.D.C., what was its status after 1973 and is its present status? What resources, fiscal and otherwise are available to the U.D.C. today? If a final monetary judgment is entered against the U.D.C., from what funds is the judgment paid? *fn5"

 (2.) As a result of years of agonized efforts there is in place a housing remedy order which is in the process of implementation. The day to day administration of this remedy order has been largely turned over, at its request, to the City with a diminishing degree of oversight by the Court appointed Housing Monitor. To what extent if any do the proponents of a housing remedy order, embodying State or U.D.C. participation, envisage a reopening of this order?

 The Court will initiate a telephone conference among all of the parties as early as possible to establish a schedule for further inquiry into housing remedy issues.

 IV. Remedy


 Questions concerning the provision of a remedy to eradicate vestiges of segregation center on two Education Improvement Plans. EIP I is embodied in this Court's initial School Remedy Order of May 13, 1986 and has been implemented by the YBE since that date with funds provided by the City, and miscellaneous State and private foundation grants. The City with the support of the NAACP and the YBE sought an order requiring the state to provide financial support sufficient to enable EIP I to be implemented fully. On June 9, 1997, adopting a recommendation of some of the parties, this Court ordered its Monitor, Dr. Joseph M. Pastore, Jr. to "report and recommend to the Court what steps, if any, need be taken to implement fully EIP I including, but not limited to, the proportion of EIP I related costs which the State defendants should bear." Dr. Pastore's Advisory Opinion on the Matter of How the Financial Burden Should be Distributed to Implement the Court-Ordered Educational Improvement Plan is annexed hereto as Appendix I.

 No party sought oral argument with respect to the Monitor's Advisory Opinion but all parties filed briefs on the issues addressed therein. The State's primary objection is that:

because the evidence shows that, in part due to the generous funding voluntarily provided by the State, the provisions of EIP I have been fully implemented and the goals of that order fully realized, the controlling decisions require that this Court relinquish jurisdiction over the Education remedy.

 (State's Objections to Monitor's Advisory Op. of 8/14/97, at 1.)

 The claim that EIP I's goals have been fully realized is based on an overly narrow view of that Order and factual misconceptions. While EIP I placed major emphasis on the assignment of students and school district reorganization, it was not limited to the physical placement of students but also addressed steps to achieve a unitary status for the YPS. Thus, the 1993 Vestiges proceeding was not the first occasion on which the YBE and NAACP took 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.

 833 F. Supp. at 216.

 EIP I adopted in 1986 § K included the following:

Assurances. The Board shall establish a comprehensive staff development program which will be a component of its ongoing in-service program for teachers and administrators and will address areas such as racial attitudes, student discipline procedures, academic achievement and performance goals, teaching in a diverse racial/ethnic environment, and integration goals.

 (Monitor's Proceedings YBE Ex. 1A.) *fn6"

 In advancing its claim that this goal of EIP I was fulfilled, the State cites the fact that the YBE report for the year 1989-90 reported that "Implementation of the Educational Improvement Plan" was one of five major components of the district's staff development and in-service programs. (State's Objections at 5.) But this contention ignores the overwhelming evidence that the district, because of lack of funding, does not have an adequate staff development program to deal with such matters as teacher's attitudes and expectations and other matters which are said to contribute significantly to lower achievement results of minority children.

 The claim that EIP I's goals have already been fulfilled is rejected.

 Another State objection is that EIP I has been funded entirely by the State. This issue raises the question fully addressed in the Monitor's Advisory Opinion, (App. A at 14-18), of the treatment to be accorded the State's allocation of $ 29.5 million for magnet program grants. Dr. Pastore concluded, based on the evidence presented before him, that the recent level of magnet program funding provided by the State serves in part as an equity adjustment and in part as a response to urgings by Yonkers representatives to support desegregation costs in Yonkers. (Id. at 18.) The State objects that this conclusion is based upon impermissible speculation as to legislative intent.

 But the evidence before the Monitor, especially that of Claire Eatz, principal budget examiner of the New York State Division of Budget, cited by Dr. Pastore, fully supports his characterization of State magnet aid and the treatment accorded such aid in the formula which he recommends. The issue is not one of the subjective intent of the legislature but rather what the objective facts show to be the effect of the State funding, the method by which the amount of funding is ...

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