197 F.3d 41 (2nd Cir. 1999), 219, United States v City of Yonkers

Docket Nº:219, 220, Doecket Nos. 97-6284, 97-6338
Citation:197 F.3d 41
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-App
Case Date:June 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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197 F.3d 41 (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,

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

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.

Nos. 219, 220, Doecket Nos. 97-6284, 97-6338

United States Court of Appeals, Second Circuit

June 22, 1999

Argued: September 9, 1998.

Petition for Rehearing Filed: July 9, 1999.

Decided: Nov. 16, 1999.

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.

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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. 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 Opportunity Act, see id. at 619, 621, and remanded for further proceedings. The case now returns to us following the district court's renewed finding that the school system still labors under vestiges of de jure segregation, and 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 two remaining vestiges in the Yonkers schools: (i) low teacher expectations for minority students, and (ii) insufficiently multi-cultural orientation of teaching techniques and curriculum. The remedy includes a requirement that the State 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, and on that issue the State is joined by the defendant City of Yonkers. In opposition, plaintiff National Association for the Advancement of Colored People ("the 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 and reproaches itself for failing to obliterate vestiges of its historical segregation.

The State appeals on the further grounds (i) that the remedy imposed exceeded the district court's authority; (ii) that the cross-claims against it filed 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 question of how liability is apportioned 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.

We initially decided this appeal by an opinion filed on June 22, 1999. See United States v. City of Yonkers, 181 F.3d 301 (2d Cir. 1999). In that opinion, we ruled inter alia that there was insufficient record support for the only two vestiges found by the district court and that the remedy imposed by the district court was unsustainable. We adhere to those conclusions. Our initial opinion also surveyed the record (guided in part by the briefs and arguments of the appellees) concluded that the record could not support alternative findings of vestiges other than the two specified by the district court, and therefore reversed on this point. Subsequently, the NAACP filed a petition for rehearing and suggestion

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for rehearing in banc. Now, upon further reflection, we are convinced by Judge Sack's view, expressed in his partial dissent to our initial opinion on this appeal, that it is prudent to ask the district court to make further findings on the present record and in light of this opinion as to whether--or not--there are remaining vestiges of segregation in the Yonkers school system, and if so what they are and what record evidence is relied on for support.

To accomplish the remand for that purpose, we grant the petition for rehearing, vacate our prior opinion, decide the appeal by this opinion, remand for a limited purpose, and provide for automatic restoration of appellate jurisdiction without a new notice of appeal. See United States v. Salameh, 84 F.3d 47, 50 (2d Cir. 1996); United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).

The remand will entail a prolongation of uncertainty in this already protracted litigation, but we conclude that the delay is worthwhile in order to ensure that we have the full benefit of the district court's views. Depending on whether additional findings are made, and (if made) what they are, the panel may revisit the question as to which party or parties bear the burden of proof. The panel has entered a stay of the order rejected in our initial opinion, which will preserve the status quo ante during the remand for further findings.

In this opinion, we arrive at the following conclusions:

* The district court identified two circumstances as vestiges of segregation. Neither fairly supports the conclusion. 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 in the first instance 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 was subsequently certified as a...

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