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November 30, 2000


The opinion of the court was delivered by: Sand, District Judge.



This Opinion was prepared and ready for filing this past August. However, apprised of ongoing settlement discussions, the Court, on August 21, 2000, issued the following Order:

The Court notes that Governor George E. Pataki has issued a statement asserting the State's commitment to a consensual resolution of the pending school litigation and the payment of a $10,000,000 advance toward such settlement.
In light of the foregoing, this Court will withhold its response to the Court of Appeals remand pending submission to it of a proposed settlement agreement.
If at any time any party shall be of the opinion that progress toward achieving a settlement is not being made at a satisfactory pace or that settlement efforts are at an impasse, this Court shall be promptly advised of such circumstances.


On November 29, 2000, the Court received a letter from the NAACP urging that the Court "issue its vestiges remand decision at the earliest possible occasion and move the process of final resolution forward."


Plaintiffs brought this action alleging that public housing and education in the City of Yonkers had been unlawfully segregated according to race. The Court finds that, as of 1997, vestiges of segregation existed in the Yonkers public schools. We therefore refer the matter to the Court-appointed School Monitor to report and recommend, after appropriate proceedings, as to a suitable remedy.


A. Procedural History

In 1985, this Court found that the City of Yonkers ("the City") and the Yonkers Board of Education ("the YBE") had intentionally segregated the Yonkers public schools ("the YPS"). See United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1376-1545 (S.D.N.Y. 1985) ("Yonkers I")*fn1, aff'd, 837 F.2d 1181 (2d Cir. 1987) ("Yonkers III"). The following year, we ordered a remedy, which came to be known as the "educational improvement plan," or "EIP I." See United States v. Yonkers Bd. of Educ., 635 F. Supp. 1538 (S.D.N.Y. 1986) ("Yonkers II"), aff'd, 837 F.2d 1181 (2d Cir. 1987). The centerpiece of EIP I was a voluntary magnet school program that was designed to eliminate the severe racial imbalance that had previously existed with respect to student and faculty assignments, as well as to alleviate inequalities in facilities and extracurricular offerings. See id. By all accounts, the plan — which organized schools and programs around particular themes and assigned students based on their thematic and programmatic preferences — was a dramatic success. School enrollments were totally desegregated within one year of EIP I's implementation and, moreover, "[t]he transition took place in a relatively smooth and peaceful manner, without the disturbances and disruption which plagued desegregating school districts elsewhere in this country." United States v. City of Yonkers, 833 F. Supp. 214, 216 (S.D.N.Y. 1993) ("Yonkers IV").

Despite EIP I's obvious successes, local school officials in Yonkers came to believe that it had only partially remedied the many entrenched problems which, they believed, were the legacy of the prior segregation.*fn2 These officials were unable to implement more thorough reform, however, because all available funds were being used to implement EIP I. The YBE, therefore, in 1987, filed a cross-claim against the State of New York and various state agencies and officials (collectively, "the State Defendants"), seeking a contribution of state funds that could be used to eradicate all remaining vestiges of public school segregation in Yonkers.*fn3

After the State Defendants' motions to dismiss and for summary judgment were denied,*fn4 the Court commenced a trial, which was to be conducted in three stages. Because the State Defendants would not be liable for remedial funding if segregation had been completely eradicated by EIP I, the first stage ("the 1993 trial") sought to determine whether or not there were vestiges of segregation. Our conclusion — that vestiges of segregation remained — was premised upon two findings of fact. We found, first, that a disparity existed with respect to the level of academic achievement attained by minority and non-minority students, see Yonkers IV, 833 F. Supp. at 220-22; and second, that the causes of that disparity were a combination of low teacher expectations for minority students and a curriculum that predated desegregation and had become anachronistic, see id. at 222.

Having found that vestiges existed, the Court then turned, in the trial's second phase ("the 1994 trial"), to the question of whether or not the State could be held liable for the pre-1985 segregation of the YPS and, therefore, required to contribute to the remedy. At the conclusion of that phase, we found that, as a matter of fact, the State Defendants' conduct had been a contributing cause to the pre-1985 segregation, but nevertheless concluded, following Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1978), that the State Defendants could not be held liable for their role in that violation. See United States v. City of Yonkers, 880 F. Supp. 212 (S.D.N Y 1995). The Court of Appeals affirmed our factual finding (i.e., that the State Defendants' conduct had contributed to the pre-1985 segregation), but reversed our legal conclusion. The court held that the State Defendants were liable, along with the City and the YBE, for the prior segregation of the YPS and that the State Defendants' could therefore be required to contribute funding for remedial measures. See United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996) ("Yonkers V").

The court's decision in Yonkers V required this Court to proceed to the third, and final, stage of the trial that had begun in 1993. The principal focus of the third stage ("the 1997 trial") was to determine an appropriate remedy. However, because four years had by that time elapsed since our initial finding that vestiges of segregation remained, the parties were also permitted to present evidence as to whether or not any vestiges continued to exist as of 1997. At the conclusion of the trial's third stage, we re-affirmed our prior finding that vestiges of segregation remained and ordered the state to contribute funding for additional remedial measures, which came to be known as "EIP II." See United States v. Yonkers Bd. of Educ., 984 F. Supp. 687 (S.D.N.Y. 1997) ("Yonkers VI").

The State Defendants and the City appealed, but sought no stay of our order, which was therefore in effect from October 8, 1997 until the Court of Appeals' stay order of August 5, 1999.*fn5 Because it believed that we had not articulated in detail all of the reasoning that underlay our findings, nor provided a detailed summary of the evidence, the Court of Appeals characterized our findings with respect to vestiges as "vague." See United States v. City of Yonkers, 197 F.3d 41, 51 (2d Cir. 1999) ("Yonkers VII"). Nevertheless, a majority of the appellate panel was able to discern two vestiges that, it believed, we had identified. It characterized those vestiges as (1) that "Yonkers' curriculum and teaching techniques are insufficiently multi-cultural," id. at 51; and (2) "low teacher expectations for minority students," id. at 52. The majority found the record to be legally insufficient to support those findings, and, therefore, reversed. The majority also explained that it had scrutinized the record and (at least initially) determined that it could support no "alternative findings" of vestiges. See id. at 45.

The third member of the panel, Judge Sack, filed an opinion concurring in part and dissenting in part. Although Judge Sack agreed that this Court had not set forth an adequate basis to support our finding of vestiges, he dissented on the ground that it would have been preferable for the Court to remand for further factual findings, rather than to reverse the findings we had made, scrutinize the record, and foreclose the possibility of any alternative findings of vestiges. See United States v. City of Yonkers, 181 F.3d 301, 321-30 (2d Cir. 1999) (Sack, J., concurring in part and dissenting in part). After the NAACP sought reargument and an en banc hearing, the majority, for reasons that are not disclosed, came to agree with Judge Sack's views. It, therefore, vacated its prior opinion and remanded the case. The "limited purpose" of the remand was to permit this Court

Yonkers VII, 197 F.3d at 46.

B. Scope of Remand

It is not without some trepidation that we now approach that limited task. We have been directed to render more detailed findings of fact in support of a conclusion that two members of the panel that will hear this case on appeal*fn6 have expressly rejected. According to a published, though withdrawn, opinion, those two have "conducted [their] own careful scrutiny of the record, to see if it could support findings of vestige[s] . . ." and, after that careful study, were "convinced that a remand would waste judicial resources and put off what in the end would be the same result." United States v. City of Yonkers, 181 F.3d at 313 n. 3

Our trepidation is enhanced by the fact that, despite our best efforts and the guidance of the parties, we are genuinely puzzled as to the scope of the issues that have been remanded. Judge Sack's view — of which the majority says it ultimately became convinced, see Yonkers VII, 197 F.3d at 46 — was that our findings were insufficiently detailed, as required by Federal Rule of Civil Procedure 52(a). See United States v. City of Yonkers, 181 F.3d at 322-25. Ordinarily, when findings are vacated on Rule 52(a) grounds, the purpose of the remand is to permit the district court to either supplement its findings or to conclude that in light of the Court of Appeals' analysis, its findings are unsustainable. See Davis v. New York City Housing Authority, 166 F.3d 432, 435 (2d Cir. 1999) (citations omitted); Inverness Corp. v. Whitehall Labs., 819 F.2d 48, 50-51 (2d Cir. 1987). The passage quoted above, which describes the purpose of the remand as being to provide this Court with an opportunity "to make further findings on the present record and in light of this opinion," Yonkers VII, 197 F.3d at 46, seems consistent with this view. The panel also characterizes its opinion as being "carefully limited to a review of the findings actually made by the district court and of the record evidence cited by the Board of Education and the NAACP," id. at 49, which suggests, as well, that the panel has rejected its prior decision to scrutinize the record and has decided, instead, to limit its review to an analysis of the adequacy of our findings. Those two passages, read in light of the fact that the panel claims to have been persuaded by Judge Sack's analysis, would lead us to conclude that the panel wishes us to reexamine the record and either render more detailed findings in support of our conclusion that vestiges of segregation remained as of 1997, or to conclude that no such finding is possible in light of the panel's reasoning.

Other portions of the remanding opinion, however, indicate that, at least with respect to some issues, no amount of elaboration or explanation would suffice. The introductory paragraph of the majority's discussion of what it calls the "educational theory" vestige concludes with the following sentence:

Our review is somewhat hampered by the district court's failure to make specific factual findings on the subject, but because we do not want to prolong unnecessarily this already-lengthy litigation, we look to the record ourselves (and specifically to passages highlighted by the Board) rather than remand the case for a further articulation of findings on this particular issue.

Id. at 51 (citing Wessmann v. Gittens, 160 F.3d 790, 802 (1st Cir. 1998)) (emphasis added); see also id. at 45 (indicating that the panel adheres to its prior conclusion "that there was insufficient record support for the only two vestiges found by the district court. . . .") Although this passage strikes us as inconsistent with the panel's decision to remand (which necessarily entails a prolongation of this "already-lengthy litigation"), and with the majority's characterization of its opinion as being limited to a review of our findings, we must acknowledge that the sentence is included in the panel's second, substituted opinion and is, therefore, legally binding upon this Court. See United States v. Tenzer, 213 F.3d 34, 40 (2d Cir. 2000). The remanding panel has definitively resolved, therefore, that the record cannot support any findings that vestiges of segregation existed in the Yonkers public schools as of 1997 with respect to curriculum or teaching techniques. We therefore do not address those issues in this opinion.*fn7

The panel's discussion of the "teacher expectations" vestige, by contrast, is summarized with the following observation:

[T]he evidence that teachers have low expectations of minority students is entirely based on scattered anecdotes, and the evidence supporting a causal link between these low expectations and prior de jure segregation is a set of subjective, intuitive. impressions. This is not enough.

Id. at 53 (citations omitted). The State Defendants read this passage to mean that the panel has also adhered to its conclusion that the record cannot support a finding that low teacher expectations are a vestige of segregation. (See State Defendants' Reply Memorandum of Law on Remand, Pursuant to the November 16, 1999 Order of the Court of Appeals for the Second Circuit ("State Reply") at 5-6.) We agree. See Yonkers VII, 197 F.3d at 45 (indicating that the second opinion adheres to the conclusion that the two vestiges (educational theory and teacher expectations) discussed in the earlier opinion were insupportable).

But the State Defendants also read this passage to signify that this Court may not in any way, directly or indirectly, refer to "teacher expectations," nor the evidence in the record on that subject. (See State Reply at 16; State Defendants' Proposed Findings of Fact and Conclusions of Law on Remand Pursuant to the November 16, 1999 Order of the Court of Appeals for the Second Circuit ("State Proposed Findings") at 61, ¶ 7.)*fn8 With this interpretation of the panel's discussion, we do not agree. The remanding panel, apparently, held that the record failed to support our finding that low teacher expectations for minority students are a vestige of segregation. It said nothing, however, about whether evidence of teacher expectations, when considered in conjunction with other evidence, might support a finding that an alternative vestige of segregation exists.

Similarly, the panel's opinion addressed the disparity in achievement test scores, upon which this Court placed great reliance in our earlier opinions. The court noted that "using achievement test scores as a measure, either direct or indirect, of a school system's movement away from segregation is deeply problematic." Yonkers VII, 197 F.3d at 54 (citing Missouri v. Jenkins, 515 U.S. 70, 101, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537 (7th Cir. 1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776-78 (3d Cir. 1996)). However, the court did not examine the propriety of our reliance on such a measure because it reasoned that even "[a]ccepting arguendo the study's conclusion of a racial disparity, the study fails to show that the disparity was caused by pre-1986 segregation in Yonkers, as opposed to, for example, generalized `societal discrimination.'" Id. at 54-55 (citing Wessmann, 160 F.3d at 803-04; Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. at 1, 22, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)). "In short," the court concluded, "a finding of prior segregation coupled with a finding of present day racial differences in educational achievement, is an insufficient positive test for the presence of residual segregative effects." Id. at 55 (citing Wessmann, 160 F.3d at 801).

The State Defendants' argue that these passages indicate that the Court of Appeals has foreclosed any consideration of the demonstrated gap in minority achievement in Yonkers. (See State Reply at 5-7; State Proposed Findings at 61, ¶ 7.) We, however, read the panel's discussion of this issue far more narrowly. We adhere to the panel's conclusion that statistical analyses of test scores, standing alone, fail to establish the existence of vestiges, but we do not believe that the panel's conclusion on this point implies that statistical analyses of test scores may not be an evidentiary factor weighed by the Court along with other evidence in reaching a conclusion that vestiges of segregation existed.*fn9

We understand, of course, that "[t]his Court does not function as an appellate court from the Court of Appeals." (State Reply at 4.) We have no desire or inclination to contradict or somehow evade the rulings of that court. But this case was remanded because the appellate panel came to believe that it was "worthwhile . . . to ensure" that it had "the full benefit" of our views. Yonkers VII, 197 F.3d at 46. We have attempted, in the pages that follow, to provide the panel with that "full benefit," though we recognize that some of our views have already been rejected. We do not therefore consider, in this opinion, whether educational theories, teacher expectations, or disparate test results are themselves vestiges of segregation — the remanding panel has foreclosed any such consideration. But for us to determine whether or not alternative vestiges existed and to explain the evidentiary basis of any such finding, it is necessary for us to consider evidence with respect to disparities in test scores and teacher expectations. That evidence is part of the record in this case. The Court of Appeals' conclusion that it provides insufficient support for certain findings does not render it inadmissible. Our consideration of test scores and teacher expectations is not therefore, as the City and the State Defendants would have it, an attempt to "indirectly" overrule or evade the Court of Appeals' ruling. To the contrary, it is the only way we can complete meaningfully the task that court has assigned us.


A vestige of segregation is a policy or practice which is traceable to the prior de jure system of segregation and which continues to have discriminatory effects. See United States v. Fordice, 505 U.S. 717, 727-28, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992); Freeman v. Pitts, 503 U.S. 467, 495-96, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992).*fn10 This Court's approach to the question of vestiges, both in our prior opinion and as amplified below, is to focus, first, on whether or not current policies or practices in Yonkers were, as of 1997, having a segregative effect in the public schools.

As courts do in a variety of legal contexts that involve intricate and subtle questions of causation, we examine the question of segregative effect inferentially. The Supreme Court's approach in employment discrimination cases provides perhaps the most familiar analogy. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Gross statistical disparities in hiring data may justify an inference of discrimination because "absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired." Hazelwood Sch. District v. United States, 433 U.S. 299, 307, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (citations and internal quotation marks omitted). A prima facie showing of a discriminatory employment practice "raises an inference of discrimination . . . because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Burdine, 450 U.S. at 254, 101 S.Ct. 1089 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (internal quotation marks omitted)). A similar approach is followed in disparate impact cases, see Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), which we find particularly instructive here, since the question we are addressing is remarkably similar to the one addressed in that context. See Griggs, 401 U.S. at 430-31, 91 S.Ct. 849 (describing goal of disparate impact section of Title VII as being "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.")

The YBE*fn12 and NAACP have attempted to demonstrate that the explanation for the shortfall in minority achievement in Yonkers is a cluster of policies and practices that have a disparate, negative impact on minority students. The City and the State Defendants maintain that the explanation is a combination of non-racial factors (such as socioeconomic status, birth weight, and levels of parental education) that disproportionately disadvantage minority students, as well as ambient societal discrimination, as reflected by the fact that an achievement gap exists in several other districts that have not been the subject of a judicial finding of unlawful segregation.

Although we address in detail the parties' arguments on these issues below,*fn13 we note in advance that we recognize the temptation to ascribe the shortfall in minority achievement to a concept as amorphous*fn14 and imperceptible as "ambient societal discrimination" — a problem for which no individual or group bears any particular responsibility. It is similarly tempting to attribute the disparity to certain entrenched realities of this nation's economic and social history — such as the levels of parental education in, and socioeconomic status of, Latino and African-American households — which are simply beyond the remedial reach of courts, schools, or other government officials. We believe, however, that it is essential for this Court, having already found a constitutional violation which we have attempted to remedy, to insure that these tempting explanations are not accepted as a more palatable surrogate for what is, in reality, a denial of our aforementioned fundamental premise that all children can learn.

To provide a degree of assurance that the City and the State Defendants are advancing a tangible and credible explanation for the shortfall in minority achievement, rather than merely sloughing off responsibility under the guise of "ambient societal discrimination," we assign those parties the burden of producing evidence that might explain the shortfall in minority achievement and exclude the explanation urged by the YBE and NAACP. Cf. Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. 1089 ("[A]ssessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided. . . . In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination."). In other words, the combination of our fundamental premise that all children can learn with the demonstrated shortfall in minority achievement, leads the Court to allocate the City and the State Defendants, if not the ultimate burden of persuasion,*fn15 at least a burden of production. See ...

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