Taylor v. Board of Ed. of City Sch. Dist. of New Rochelle

• Decision Date: 02 August 1961
• Docket Number: No. 427,Docket 27055.,427
• Citation: 294 F.2d 36
• Parties: Leslie TAYLOR and Kevin Taylor, minors, by Wilbert Taylor and Hallie Taylor, their parents and next friends, et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW ROCHELLE and Herbert C. Clish, as Superintendent of Schools of the City School District of the City of New Rochelle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

294 F.2d 36 (1961)

Leslie TAYLOR and Kevin Taylor, minors, by Wilbert Taylor and Hallie Taylor, their parents and next friends, et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW ROCHELLE and Herbert C. Clish, as Superintendent of Schools of the City School District of the City of New Rochelle, Defendants-Appellants.

No. 427, Docket 27055.

United States Court of Appeals Second Circuit.

Argued July 18, 1961.

Decided August 2, 1961.

Constance Baker Motley, New York City (Thurgood Marshall and Paul Zuber, New York City, on the brief), for plaintiffs-appellees.

Julius Weiss, of Weiss & Bronston, New York City (Murray C. Fuerst, New Rochelle, N. Y., on the brief), for defendants-appellants.

Jack M. Perlman, New York City, for Seth M. Glickenhaus, Nolan M. Fallahay, and Marylyn W. Pierce, applicants for intervention.

Burke Marshall, Asst. Atty. Gen., Harold H. Greene and Isabel L. Blair, Attys., Dept. of Justice, Washington, D. C., and Robert M. Morgenthau, U. S. Atty., S. D. N. Y., New York City, for United States as amicus curiae, for affirmance.

Edwin J. Lukas, Leo Pfeffer, Arnold Forster, Simon Rosenzweig, New York City, and Arthur L. Pulley, New Rochelle, N. Y. (Theodore Leskes, Sol Rabkin, and Joseph B. Robison, New York City, of counsel), for American Jewish Committee, American Jewish Congress, Anti-Defamation League of B'nai B'rith, Catholic Interracial Counsel of New Rochelle, and Urban League of Westchester County, amici curiae, for affirmance.

Bernard T. McGivern, Albany, N. Y., for New York State School Boards Assn., as amicus curiae, for reversal.

Before CLARK, MOORE, and SMITH, Circuit Judges.

CLARK, Circuit Judge.

This is a class action brought by eleven Negro children through their parents, on behalf of all Negro children situated in the Lincoln Elementary School District in New Rochelle, New York. Plaintiffs seek principally a permanent injunction enjoining the defendants, the Board of Education and the Superintendent of Schools of the New Rochelle City School District, from requiring them to be registered in a racially segregated public elementary school and requiring the defendants to register them in a public elementary school that is racially integrated. After an extensive trial the District Court, per Kaufman, J., on January 24, 1961, wrote a detailed opinion, reported in D.C.S.D.N.Y., 191 F.Supp. 181, making findings of fact and conclusions of law supporting the plaintiffs' case and directing the defendant Board to present to the court on or before April 14, 1961, a plan for desegregation to begin no later than the start of the 1961-62 school year. Reference is made to this opinion for a detailed statement of the facts here relevant.

The defendants took an appeal, which this court, by divided vote, dismissed as premature. Taylor v. Board of Education, etc., 2 Cir., 288 F.2d 600. Thereafter proceedings were had below resulting in an opinion and decree of May 31, 1961, D.C.S.D.N.Y., 195 F.Supp. 231, which directed the defendants to allow students in the Lincoln Elementary School (the school here in issue) to transfer to other elementary schools within New Rochelle. To comply with the court's directive the defendants had submitted with reluctance a plan for such transfers under conditions which the court found unduly burdensome. So the court in accepting the plan rejected all conditions — other than those of detail as to the time and manner of application — except two, viz., that parents must provide any necessary transportation at their own expense and that there must be available school space for the transferees. It is from this decree — further details of which are noted hereinafter — that the present appeal is taken.

A major finding of the court below was that the defendant School Board had deliberately created and maintained Lincoln School as a racially segregated school. This crucial finding is, we conclude, supported by the record. Thus, around 1930, an area of several blocks, occupied by whites, was carved out of the Lincoln District and added to the Daniel Webster District, even though this area was adjacent to the Lincoln School and was a relatively long distance from the Webster School. When Negroes later moved into this area it was restored to the Lincoln District. In addition, children from the predominantly white Rochelle Park within the Lincoln District were removed from that district and assigned to the Mayflower School. It also appears that until 1949 the Board allowed white children within the Lincoln District to transfer to other schools, with the result that Lincoln School in 1949 was 100 per cent Negro. The defendants sharply attack the testimonial evidence received on this issue; but the basic facts just recited, which appear incontrovertible, support the finding and leave as the vital problem the later conduct of the Board and its present responsibility for the conditions stimulated prior to 1949.

On January 11, 1949, the Board adopted a policy of refusing further transfers and of admitting new students only to the school of the district in which they reside. This policy of attendance at the school of the district of residence, the "neighborhood school policy" or NSP, had been in existence for some time, but with the amelioration provided by the system of permissive transfers; henceforth it was to be applied with complete rigor. While it did mean that a small number of white children were retained in the district, yet it served to fix the Lincoln School as a segregated one, so that it is now 94 per cent Negro. At the same time that the Board settled its policy in 1949, it promised a study of district lines with a view to setting up school districts in terms of the best interests of all the children and of the most complete utilization of the present physical plant; and thereafter it caused several surveys to be made by its own school personnel or others. One of the most complete was that made by a professorial team from Teachers College, Columbia, and the School of Education of New York University, resulting in December 1957 in the Dodson Report, so called from its Director, Professor Dan W. Dodson, a specialist in the field who testified for the plaintiffs below. This report, whose official title was "Racial Imbalance in Public Education in New Rochelle, New York," was a most comprehensive statement of the problem and an admonition to the Board to make a broadly based attack upon the evil of segregation, with specific recommendations more extensive and drastic than those in the decree under appeal. See D.C.S.D.N.Y., 191 F. Supp. 181, 188-190.

Major recommendations of the Dodson Report included proposals for the rebuilding of a larger Lincoln School on the same site, with the discontinuance of nearby Washington School, together with extensive redistricting and a more flexible use of NSP in the future. But the Board took no action other than to propose rebuilding the Lincoln School on its present site, which in the light of the Board's policy of refusal to allow children to transfer to schools in other districts would mean a freezing in of segregation at Lincoln. The proposal, once defeated, was, however, eventually carried by referendum vote of the New Rochelle voters in May 1960; and the imminence of plans for the rebuilding of Lincoln precipitated this class action instituted in October and brought to trial in November 1960.

It must be acknowledged that the problems facing the Board, while not peculiar to this community, are serious and difficult. They arise when people of a single racial group tend to settle in a particular neighborhood such as the Lincoln District here, and the trend is accelerated by housing developments and real estate transactions increasing the group numbers. Even so, the action of public bodies, of which school boards are most potent because of the importance of public education in American life, must be in accordance with the constitutional standards as expounded by the Supreme Court.¹ The facts recited above showing the Board's acceleration of segregation at Lincoln up to 1949 and its actions since then amounting only to a perpetuation and a freezing in of this condition negate the argument that the present situation in Lincoln School is only the "chance" or "inevitable" result of applying a neighborhood school policy to a community where residential patterns show a racial imbalance. Rather they make it appear that the Board considered Lincoln as the "Negro" school and that district lines were drawn and retained so as to perpetuate this condition. In short, race was made the basis for school districting, with the purpose and effect of producing a substantially segregated school. This conduct clearly violates the Fourteenth Amendment and the Supreme Court decision in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180. See Clemons v. Board of Education of Hillsboro, Ohio, 6 Cir., 228 F.2d 853, certiorari denied Board of Education of Hillsboro, Ohio v. Clemons, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868; Holland v. Board of Public Instruction of Palm Beach County, Fla., 5 Cir., 258 F.2d 730.

So the present 94 per cent Negro enrollment at the Lincoln School goes beyond mere "racial imbalance," and approximates closely the harmful conditions condemned in the Brown case. Since these conditions were the result of the deliberate conduct of the Board, the plaintiffs and those similarly situated are entitled to some form of relief.²

The plan which the court eventually adopted is one noteworthy for its moderation. It is not one supported by the Dodson Report, but it appears to have been followed with at least fair success in other cities such as Baltimore. It can be put into operation with little administrative difficulty or public expense, as the Board showed in the submission of its own plan, which is the actual basis of the decree...