181 F.3d 301 (2nd Cir. 1999), 219, United States v City of Yonkers

Docket Nº:219, 220 --
Citation:181 F.3d 301
Party Name:UNITED STATES OF AMERICA, Plaintiff, YONKERS BRANCH - NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, REGINA RYER, a minor by her mother, and next friend, and CHARLOTTE RYER, on behalf of themselves, and all individuals similarly situated, Plaintiffs-Intervenors-Appellees, v. CITY OF YONKERS and YONKERS BOARD OF EDUCATION, Defendants-Ap
Case Date:June 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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181 F.3d 301 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff,

YONKERS BRANCH - NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, REGINA RYER, a minor by her mother, and next friend, and CHARLOTTE RYER, on behalf of themselves, and all individuals similarly situated, Plaintiffs-Intervenors-Appellees,

v.

CITY OF YONKERS and YONKERS BOARD OF EDUCATION, Defendants-Appellees,

YONKERS COMMUNITY DEVELOPMENT AGENCY, and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Samuel Pierce, Secretary, Defendants,

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THE STATE OF NEW YORK, THE BOARD OF REGENTS OF THE STATE OF NEW YORK, CARL T. HAYDEN, LOUISE P. MATTEONI, JORGE L. BATISTA, EDWARD J. MEYER, R. CARLOS CARBALLADA, ADELAIDE L. SANFORD, DIANE O'NEILL MCGIVERN, SAUL B. COHEN, JAMES C. DAWSON, ROBERT M. BENNET, ROBERT M. JOHNSON, PETER M. PREYOR, ANTHONY S. BOTTAR, MERRYL H. TISCH, HAROLD O. LEVY, ENA L. FARLEY, in their official capacities as members of the State Board of Regents, DEPARTMENT OF EDUCATION OF THE STATE OF NEW YORK, RICHARD P. MILLS, as Commissioner of Education of the State of New York, URBAN DEVELOPMENT CORPORATION OF THE STATE OF NEW YORK, and CHARLES A. GARGANO, as Chairman of the Urban Development Corporation, GEORGE PATAKI, as Governor of the State of New York, and H. CARL McCALL, as Comptroller of the State of New York, Defendants-Appellants.

Docket Nos. 97-6284, 97-6338

Nos. 219, 220 --

United States Court of Appeals, Second Circuit

June 22, 1999

Argued: September 9, 1998

Appeal from judgments of the United States District Court for the Southern District of New York (Sand, J.), finding that vestiges of segregation remain in the Yonkers public schools, imposing additional remedies, and apportioning costs among the defendants.

Reversed in part, affirmed in part, and remanded.

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DENISE A. HARTMAN, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General of the State of New York, Barbara G. Billet, Solicitor General, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General, on the brief) for Defendants-Appellants.

MICHAEL H. SUSSMAN, Goshen, NY (Stephen Bergstein, Law Offices of Michael H. Sussman, on the brief), for Plaintiffs-Intervenors-Appellees.

STEPHEN J. ROUTH, Washington, DC (Kevin J. Lanigan, John Borkowski, Carmel Martin, Hogan & Hartson L.L.P., Washington, D.C.; Lawrence W. Thomas, Donoghue, Thomas, Auslander & Drohan, Yonkers, NY, on the brief), for Defendant-Appellee Yonkers Board of Education.

RAYMOND P. FITZPATRICK, JR., Birmingham, AL (Fitzpatrick, Cooper & Clark, on the brief), for Defendant-Appellee City of Yonkers.

Before: MCLAUGHLIN, JACOBS, and SACK, Circuit Judges.

Judge Sack concurs in part and dissents in part in a separate opinion.

JACOBS, Circuit Judge:

In 1996, this Court affirmed findings by the United States District Court for the Southern District of New York (Sand, J.) that the State of New York had been aware of de jure segregation by the City of Yonkers in its public schools, and that the State failed to take corrective measures. See United States v. City of Yonkers, 96 F.3d 600, 611 (2d Cir. 1996). At the same time, we held (reversing the district court) that the State could for that reason be liable under the Fourteenth Amendment or the Equal Education Opportunities Act, see id. at 619, 621, and remanded for further proceedings. The case now returns to us following the district court's finding that the school system still labors under vestiges of de jure segregation, and entry of a judgment embodying a remedy supplemental to one imposed a decade earlier and intended (like the earlier remedy) to eradicate the vestiges of school segregation in Yonkers.

The order appealed from finds that two vestiges remain in the Yonkers schools: (i) low teacher expectations for minority students, and (ii) insufficiently multi-cultural orientation of teaching techniques and curriculum. The district court ordered the State to contribute $575 million over nine years to help fund various remedial measures.

The defendant State of New York (joined by the defendant City of Yonkers) contests the district court's finding that vestiges of segregation remain in the school system. In opposition, the plaintiff National Association for the Advancement of Colored People ("NAACP") argues that the findings are adequately supported by the evidence; on that issue, the NAACP is joined by the defendant Yonkers Board of Education, which would enjoy a large infusion of State funding if the order is affirmed

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and which reproaches itself for failing to obliterate segregation.

The State appeals on the further grounds (i) that the remedy imposed exceeded the district court's authority; (ii) that the cross-claims filed against it by the Yonkers parties (the City and the Board) are barred by the doctrine of municipal incapacity; (iii) that the NAACP lacks standing to litigate the apportioning of liability among the defendants; and (iv) that the district court impermissibly assessed against the State half the annual cost of remedial measures. As to these issues, the City joins the NAACP and the Board in urging affirmance of the remedial orders.

In this opinion, we arrive at the following conclusions:

* Ordinarily, the parties seeking to end court supervision of schools bear the burden of persuasion on the issue of whether the school system is free of the vestiges of segregation. However, in the absence of findings that there are vestiges of segregation in student attendance, faculty, staff, transportation, extracurricular activities, and facilities--the so-called Green factors listed in Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 1693 (1968)--the burden is properly placed on the parties that desire to prolong judicial oversight. In this case, therefore, the burden rests with the NAACP and with the Board of Education, the party that has best access to information relevant to the issue.

* The NAACP and the Board have failed to carry their burden of demonstrating that the two circumstances identified by the district court exist and are vestiges of prior segregation. The evidence supporting these findings was almost entirely anecdotal, and failed to forge an adequate causal link between the regime of de jure segregation and any ongoing remediable deficiency. Likewise, statistical evidence about racial disparities in educational achievement failed to demonstrate that the racial gap was the product of prior segregation, as opposed to, for example, ambient societal racism.

* The remedy imposed by the district court exceeded its broad remedial authority because the remedy constitutes by and large a general school improvement program. The court failed to articulate the required nexus between any ongoing injury caused by unconstitutional conduct and proposed remedial measures.

* As the case is currently structured, we reject the State's arguments on municipal incapacity and standing. Since the State concedes that the NAACP plaintiffs do have standing to litigate the State's liability and the scope of the remedy, the district court has little choice but to apportion costs among the joint tortfeasors.

* Finally, the district court did not exceed its remedial authority in allocating to the State one-half the annual costs of its previously-imposed remedy. At the same time, we leave it to the district court on remand to assess the ongoing efficacy and necessity of that remedy.

BACKGROUND

We will assume familiarity with our previous decisions in the case, see United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996) ("Yonkers V"); United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987) ("Yonkers III"), and will here emphasize only those facts and circumstances that bear upon the issues presented on this appeal.

In 1980, the United States sued the City of Yonkers, the Yonkers Board of Education, and the Yonkers Community Development agency, alleging housing and school segregation in violation of the Equal Protection Clause and federal civil rights statutes. The NAACP intervened as a plaintiff the following year, and the case

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was subsequently certified as a class action.

After trial, the district court found that the defendants had committed intentional racial discrimination in housing and in education. See United States v. Yonkers Bd. of Educ., 624 F.Supp. 1276 (S.D.N.Y. 1985) (Sand, J.) ("Yonkers I"). Specifically, the Board had clung to a neighborhood school policy with full knowledge that its location of subsidized public housing in poorer neighborhoods of the City would be conducive to segregated schools; had manipulated school openings and closings and attendance zones to create and preserve racially identifiable schools; had rejected several reasonable proposals that would have desegregated the student population; had consigned students in predominantly minority schools to inferior facilities and staff; had followed a policy of disproportionately assigning minority teachers and staff to schools with predominately minority student populations; and had assigned minority students disproportionately to special education classes. See Yonkers III, 837 F.2d at 1212-14. The district court found that the City was also liable for school segregation because it had pursued a discriminatory housing policy with the intent (in part) to keep racially identifiable schools, and because the mayor's appointments to the Board of Education evinced a desire to continue segregated schools in Yonkers. See id. at 1214-15.

A year later, the district court issued its remedial order for the Yonkers schools. See...

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