363 Mass. 20 (1973), School Committee of Boston v. Board of Ed.

Citation:363 Mass. 20, 292 N.E.2d 338
Case Date:February 02, 1973
Court:Supreme Judicial Court of Massachusetts

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363 Mass. 20 (1973)

292 N.E.2d 338




Supreme Judicial Court of Massachusetts, Suffolk.

February 2, 1973

Argued Dec. 6, 1972.

[292 N.E.2d 339] James D. St. Clair, Boston (Stephen H. Oleskey, Boston, with him), for School Committee of Boston and another.

Walter H. Mayo, III, Asst. Atty. Gen. (Andrew M. Wolfe, Asst. Atty. Gen., with him), for Board of Education.


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REARDON, Justice.

This case is here on a bill for judicial review, declaratory relief, and relief in equity brought against the Board of Education of the Commonwealth (board) by the School Committee of the city of Boston (committee). The bill alleged that the board had acted arbitrarily in withholding State school funds (due under G.L. c. 70) from the committee under the racial imbalance law (G.L. c. 15, §§ 1I--1K, and c. 71, §§ 37C, 37D, all as amended). 1

On November 15, 1971, a judge of the Superior Court entered a preliminary injunction enjoining the board from withholding the State funds from the committee. On appeal the single justice, on December 2, 1971, on stipulation of the parties, vacated the preliminary injunction and ordered the funds certified but withheld, until either the parties agreed to the release of the funds or a final decree was entered in the suit from which no appeal was taken.

On December 29, 1971, the board filed an answer and counterclaim alleging that the committee had not made reasonable progress in eliminating racial imbalance within the meaning of G.L. c. 15, § 1I, that a 'Fourth Stage Plan,' 'as amended by the Committee on September 21, 1971,' was not a plan to eliminate racial imbalance within the meaning of G.L. c. 71, § 37D, and had not

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been approved by the board, and that since 1964 the committee had engaged in a purposeful pattern of racial discrimination in violation of the Fourteenth Amendment. The board sought a declaration to this effect, and specific relief ordering the committee to file a plan to eliminate racial imbalance, withholding all State funds until such plan was filed and implemented, and ordering the committee to maintain on a racially balanced basis all schools constructed since 1966 and to be constructed in the future, in addition to such other relief as the court deemed just and proper. 2

Following eight days of trial on the merits of the bill and counterclaim, and the introduction of some 163 exhibits, the trial judge made extensive findings and, regarding the bill for judicial review, concluded that the board had acted 'arbitrarily, in abuse of its discretion, and in a manner not consistent with the public interest' in withholding the funds, and by a final decree ordered it to effectuate their release.

Treating the board's counterclaim separately, the judge made further findings, notably that while the committee was in 'literal' compliance with the terms of the law, its compliance was 'minimal,' and its performance characterized by 'reluctance and lethargy.' However, consistent with his ruling on the bill, the judge refused to declare that the committee had not made reasonable progress toward eliminating racial imbalance and refused to order funds withheld. He furthermore found that there was insufficient evidence to show that the committee had violated the Fourteenth Amendment. Noting that various other prayers for relief were moot by virtue of the general equitable relief he was granting the board, the judge went on to frame an 'interlocutory decree' which (a) ordered the committee to develop a plan of short term measures toward 'achieving maximum progress in the reduction of racial imbalance in the public

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schools of the City of Boston by June 20, 1973'; (b) to set up a schedule for the development of such plan; (c) required the appointment of a special master to report to the court [292 N.E.2d 341] on the implementation of the decree; (d) scheduled hearings to begin on June 20, 1973, on the plan, following which the judge anticipated issuing a final decree establishing a schedule for the achievement of complete racial balance; and (e) ordered that the Lee School and schools constructed since 1966 for the purpose of reducing racial imbalance be balanced by January 1, 1973 (subsequently modified to September, 1973). 3

On October 11, 1972, the single justice vacated the interlocutory decree of December 2, 1971, and ordered the funds released.

The parties appeal from the final decree, and the committee appeals from the 'interlocutory decree.' 4

While the record goes into some detail in developing the history of the committee's operation under the racial imbalance law and its relationship with the board, we set forth only those facts necessary to the disposition of the issues before us.

The first racial census conducted under the racial imbalance law in October, 1965, revealed that forty-six Boston schools out of approximately 200 were racially imbalanced. In accordance with the law the board requested a plan for the elimination of racial imbalance. The committee submitted a plan, which was rejected.

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Thereafter, two task forces of educators from the committee and the board were set up to assist in the development of a plan. Following the 1966 census, which showed forty-nine schools to be imbalanced, as a result of the joint efforts of the task forces the committee submitted a plan, approved by the board on March 15, 1967, called 'The First Stage Plan.' This plan relied chiefly on new school construction as a long term solution to racial imbalance (including the Lee School). For short term relief the plan relied on Metco, Exodus, and open enrollment. 5

[292 N.E.2d 342] In June, 1968, the 'Second State Plan' was submitted to, and approved by, the board, again with the major theme of construction of new schools in 'fringe' areas (bordering demographically white and non-white neighborhoods). In May, 1969, a 'Third Stage Plan' was submitted and subsequently approved. The October, 1969, census showed sixty-two imbalanced schools, but no request for a plan was made. The October, 1970, census showed sixty-four imbalanced schools. On October 27, 1970, the board voted to modify the open enrollment policy

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by requiring that a student could transfer only if that transfer decreased racial imbalance at his current school or at the transferee school. On November 24, 1970, the board requested another plan.

Negotiations took place during the winter and spring of 1971, characterized by insistence on the part of the board that the committee adopt the 'controlled transfer' policy, 6 and by confusion over the nature of the 'technical assistance' to be rendered by the board. As a result of the refusal of the committee to adopt the controlled transfer policy, the board voted on May 25 to withhold funds. On June 15, 1971, the committee submitted its 'Fourth Stage Plan.' On June 22, 1971, the board rejected the plan.

In effect, the 'Fourth Stage Plan' was a report on the operation of Metco and Exodus, a report on the balancing of newly constructed schools, including adoption of a certain plan for districting for the Lee School, 7 a progress report on the construction program, and a lengthy proposal for 'metropolitanization.' 8

The crux of the board's objections were (a) the refusal of the committee to adopt the controlled transfer policy;

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and (b) the modified districting policy for the new Lee School.

On July 19, 1971, the committee submitted amendments to the plan, which were rejected by the board. On August 16, 1971, the committee submitted other amendments. These apparently were neither rejected nor accepted.

On August 23, 1971, in response to resolutions of the board covering essentially the same matters, the committee adopted a third set of amendments. Most importantly, the committee adopted the controlled transfer policy and eliminated the 'modification' of the Lee School districting.

[292 N.E.2d 343] On August 31, 1971, the board approved the amendments to the 'Fourth Stage Plan.' The committee was notified that it had been found in compliance with the requirement that it submit a plan for the elimination of racial imbalance, and, on September 1, the funds previously withheld were released.

On September 8, 1971, the Boston schools opened, and contemporaneous events in the Lee, Fifield and O'Hearn districts were characterized by the trial judge as 'chaotic.'

Many black children living near the Lee School, but outside the new lines, reported to the Lee School. Simultaneously, many white children who had formerly attended the Fifield and O'Hearn schools but under the new districting were supposed to attend the Lee School refused to do so. There was heated controversy and widespread publicity. In this climate, at a public meeting held on September 21, 1971, in the O'Hearn School auditorium, the committee voted to revert to the 'modification' of Lee School districting, and allow blacks who had improperly registered at the Lee School to remain there. The commissioner and the board had declined an invitation to attend this meeting.

On September 28, the board met and, without having made any effort to obtain accurate firsthand information of the circumstances surrounding the committee vote, and apparently after considering that action alone, declared

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the committee to be in violation of its previously approved plan, and declared that the committee had not made progress within a reasonable time toward eliminating racial imbalance and therefore voted to withhold funds.

The October, 1971, census revealed that sixty-five to sixty-seven schools were imbalanced, and...

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