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January 14, 1999


The opinion of the court was delivered by: Larimer, Chief Judge.


The basic issue before the Court is whether a governmental body — a school district — can deny a child the opportunity to participate in a school-sponsored program on account of her race. The answer must be "no." As Justice Lewis Powell said in his opinion for the Supreme Court in Regents of the Univ. of California v. Bakke, 438 U.S. 265, 289, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978): "the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal."

In the instant case, a child sought the benefits of a transfer program which allowed students to transfer from one school district to another. The child met all of the "criteria" for admission, save one: she was white and only "minority students" were deemed eligible for the program by those who administer it. Implementation of the program in such a fashion cannot survive analysis under the Equal Protection Clause of the United States Constitution.

Plaintiffs, Laurie A. Brewer and Jodie Foster, commenced this action against the West Irondequoit School District ("WISD"), the Monroe Number One Board of Cooperative Educational Services ("BOCES"), and several school officials who implement the Urban-Suburban Interdistrict Transfer Program ("the Program"). All of plaintiffs' claims relate to defendants' decision not to allow plaintiffs' daughter, Jessica L. Haak ("Jessica"), to participate in the program because she is a nonminority student within the Rochester City School District ("RCSD"). Specifically, Jessica, who lives in Rochester, New York and attends an elementary school in RCSD, was denied the opportunity to transfer to an elementary school in an adjoining suburban district (WISD) because she is a white Caucasian. It is undisputed that as administered, the program only allows minority students to transfer from schools in RCSD to suburban schools and only nonminority students may transfer from suburban schools to schools in the City of Rochester.

Plaintiffs assert claims under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, under 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) and under New York State law. Plaintiffs have now moved for a preliminary injunction ordering defendants to allow Jessica to transfer from her school in the City of Rochester to an elementary school in the WISD. For the reasons that follow, the motion is granted.


I. The Urban-Suburban Interdistrict Transfer Program

The Program has several stated objectives, which are expressed in various documents relating to the Program. For example, the Program's "Mission Statement" states that the Program is designed to enhance and enrich the participating schools and their communities by "Reducing Minority Group Isolation," "Encouraging Intercultural Learning," "Promoting Academic Excellence," and "Fostering Responsible Civic Leadership." Affidavit of Kevin S. Cooman, sworn to October 14, 1998, Ex. D. A written "overview" of the Program similarly states that it

encompasses a commitment to:

  * Promote educational options and intercultural
  opportunities for children from multiple ethnic
  backgrounds as they attend school together.
  * Maintain dedicated efforts to foster student and
  adult appreciation of their cultural commonalities
  and diversities.
  * Provide experiences in multiple, nonmandated
  intercultural activities that will benefit
  students coming from varied ethnic and social
  * Develop academic and personal challenges that
  correlate with the skills, abilities and
  experiences of both urban and suburban students.
  * Enhance and improve the quality of intercultural
  learning for both urban and suburban students from
  different ethnic environments.

Id. Ex. E.

Although the Program thus has several stated goals, it has but a single method of achieving those goals: allowing minority students to transfer out of RCSD schools to suburban schools, and allowing white students to transfer from the suburbs to the RCSD.

Despite its many stated objectives, it is clear that the main purpose of the Program is to reduce what is described as "racial isolation" within the student population of the participating school districts. As defined by regulations issued by the New York State Commissioner of Education, "[r]acial isolation means that a school or school district enrollment consists of a predominant number or percentage of students of a particular racial/ethnic group." 8 N.Y.C.R.R. § 175.24(a)(2). In other words, the program is designed to reduce the percentage of minority students in predominantly minority city schools, and to increase the percentage of minority students in predominantly white suburban schools. Neither the regulations nor any literature covering the Program states what the ideal or desired percentage should be, however.

For a number of years, the Program received funding from the federal government pursuant to the Emergency School Aid Act of 1972 ("ESAA"), formerly 20 U.S.C. § 1617. In enacting ESAA, Congress stated that it wanted to further "the process of eliminating or preventing minority group isolation. . . ." Former 20 U.S.C. § 1601(a). That statute, however, was repealed in 1982. After ESAA was repealed, New York State began providing funding for the Program pursuant to Ed. L. § 3602(36). That statute provides that a "school district which accepts pupils from another school district in accordance with a voluntary interdistrict urban-suburban transfer program designed to reduce racial isolation which is approved by the commissioner in accordance with regulations adopted by him for such purpose shall be eligible for aid pursuant to this subdivision." The funding provided by the State enables the transferring student to matriculate as a non-resident student without being required to pay tuition, which would normally be required.

As the Program is currently administered, only minority pupils are allowed to transfer from city schools to suburban schools. White students may be transferred from suburban schools to the city, provided that the transfer "do[es] not negatively affect the racial balance of the receiving school. . . ." RCSD Directory 1997-98 (Cooman Aff. Ex. G) at 19. There is no statement or definition of the proper "racial balance" that should be maintained.

State regulations define "minority pupil" as "a pupil who is of Black or Hispanic origin or is a member of another racial minority group that historically has been the subject of discrimination." 8 N.Y.C.R.R. § 175.24(a)(1) (emphasis added). Defendant Theresa J. Woodson, Director of the Urban-Suburban Interdistrict Transfer Program, states in an affidavit that under the Program, students of Asian or American Indian origin are also considered to be minority pupils eligible for transfer to suburban schools. Woodson Aff., ¶ 8.

The participating districts' joint application to the Commissioner of Education for the 1996-97 school year indicates that overall, the suburban districts reported a minority student population of less than ten percent, while the RCSD reported a minority student population of about eighty percent. Cooman Aff. Ex. B. As of July 1997, the RCSD's total student population from kindergarten through twelfth grade was 37,153, which means that the number of minority students was roughly 29,700. Id. Ex. G. The RCSD reported that 591 minority students had been transferred during the 1996-97 school year from RCSD schools to participating suburban schools, and that 29 white students had been accepted into the RCSD from the participating suburban schools. The number of minority students accepted by the suburban districts ran from 53 in the Wheatland-Chili Central School District to 180 in the Pittsford Central School District. Id. Ex. B.

The Program, in effect, allows a student to transfer to another district without any financial consequence to the student. West Irondequoit has established a tuition for nonresident students who wish to attend the school, subject to availability of space.

Because this Program is funded by the State, however, the transferring student pays no tuition and is treated like a resident student in all respects. The State provides aid to the receiving school district and provides reimbursement for some costs associated with the attendance of the transferring student, who pays neither tuition nor any property taxes in that district. Affidavit of Mary Beth Lovejoy, Assistant Superintendent for Business, BOCES, sworn to on October 8, 1998, ¶ 8.

Obviously, it is of great benefit, financial and otherwise, for a student such as Jessica to attend a suburban school which she, at least, perceives as a "better school" for her, without financial obligation of any kind. The Program is very popular and it appears that the number of applicants far exceeds the space available in the six suburban districts. Plaintiffs' application in this case was rejected on two prior occasions because space was unavailable.

Once an application has been submitted, the Program office requests the applicant's report cards and other performance information. All the applicants' records are then sorted by grade level and sent to potential receiving schools, whose principals then determine, based on the number of spaces they have available, which students they will accept. Cooman Aff., Ex. A. Although there are certain limitations on the reasons why a particular student can be selected for transfer (e.g., the transferring district cannot select a student solely because the student is considered a disciplinary problem, nor can the receiving district accept a student solely for the purpose of improving the district's nonacademic programs, such as sports), it does not appear that there are any particular criteria upon which the receiving schools' principals must make their decisions. Glenn Wachter, the Superintendent of the WISD, states in an affidavit only that "the Principal selects students based upon their classroom records and space availability." Affidavit of Glenn Wachter, sworn to October 9, 1998, ¶ 19. Except for that, the record is silent as to the criteria used by the administrators to differentiate among the numerous students seeking transfer.

II.  Jessica Haak's Application to Participate in the

Jessica, who was born in November 1988, and lives in the City of Rochester is, and has been since first grade, a student at School Number 39 in the RCSD. She is currently in fourth grade. In 1996, plaintiffs applied to the Program, seeking a transfer for Jessica to a suburban school. The application form contained no space for stating the race or ethnicity of the applying student. Defendant Woodson states that it has been the practice of the Program administrators to rely on parents to "self-screen" their children, i.e. not to submit an application unless their child meets the appropriate race or ethnicity requirement. Woodson Aff. ΒΆ 20. Thus, ...

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