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 relevant facts are for the most part not in dispute. The
Program had its genesis
in a 1965 agreement between the Rochester City School District
and the West Irondequoit School District. Over the years,
several other suburban districts have voluntarily joined the
Program; currently seven school districts — Rochester, West
Irondequoit, Brighton, Brockport, Penfield, Pittsford and
Wheatland-Chili — participate in the Program. Apparently, the
Program is the only such interdistrict transfer program in New
York. Affidavit of Theresa J. Woodson, sworn to October 13,
1998, ¶ 6.
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
* 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.
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
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
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. ¶ 20. Thus, ...