Offermann v. Nitkowski

Decision Date19 May 1967
Docket NumberNo. 411,Docket 30337.,411
PartiesKarl P. OFFERMANN and Mary E. Offermann, Individually and as Parents and Next Friends of Children Eligible to Attend the Public Schools of the City of Buffalo, New York, and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, Earthly J. Gaskin, Geraldine Gaskin, Robert E. Jackson and Anna B. Jackson, Plaintiff-Intervenors, v. Anthony J. NITKOWSKI, as president and a member of the Board of Education of the City of Buffalo, New York, Peter Gust Economou, Lydia T. Wright, Alfreda W. Slominski, Carmelo A. Parlato, Bernard S. Rosenblat and George F. Goodyear, as members of the Board of Education of the City of Buffalo, New York, Joseph Manch, as Superintendent of Schools of the City of Buffalo, New York, James E. Allen, Jr., as Commissioner of Education of the State of New York, and The Board of Regents of the University of the State of New York, Defendants-Appellees, Yerby Dixon, Newton Garber, Blanche Thomas, Erwin Johnson, Evelyn Perkins and Julia Johns, Defendant-Intervenors-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Peter L. Parrino of Parrino & Cooper, Buffalo, N. Y., for plaintiffs-appellants.

John J. Naples, Asst. Corporation Counsel, Buffalo, N. Y. (Anthony Manguso, Corporation Counsel, on the brief), for Buffalo Board of Education and Joseph Manch, appellees.

John P. Jehu, Albany, N. Y. (Charles A. Brind, Jr., Albany, N. Y., on the brief), for James E. Allen, Jr., and Board of Regents, appellees.

Maria L. Marcus, New York City (Herman Schwartz, Buffalo, N. Y., Robert L. Carter and Joan Franklin, New

York City, on the brief), for defendants-intervenors-appellees.

Before MOORE, SMITH and FEINBERG, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

This is an appeal by a group of parents in Buffalo, New York, from an order of the United States District Court for the Western District of New York, John O. Henderson, Judge, which refused to convene a three-judge court sought under 28 U.S.C. §§ 2281, 22841 and dismissed their suit against the Buffalo Superintendent of Schools and Board of Education, the Commissioner of Education of the State of New York and the Board of Regents of the University of the State of New York. The plaintiffs are white, the intervening plaintiffs colored. We find that the action was properly dismissed, that the question raised was insubstantial, and affirm the dismissal of the action and denial of the application to convene a statutory three-judge court.

The gravamen of appellants' complaint is that appellees' plan to correct the de facto racial imbalance in the Buffalo school system is unconstitutional because it is based on proscribed racial classifications, that is, that changes in school district boundaries and exceptions to the requirement that children attend neighborhood schools were based on race.

In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Court struck down all state action which permitted or required segregation of the races in public schools and subsequently ruled that desegregation proceed "with all deliberate speed." 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). In carrying out the Court's mandate, states necessarily based their desegregation plans on racial classification and the courts have uniformly held such classifications constitutional. See, e. g., Wanner v. County School Board, 357 F.2d 452, 455 (4th Cir. 1966); Dowell v. School Board, 244 F.Supp. 971, 981 (W.D.Okl.1965). Springfield School Committee v. Barksdale, 348 F.2d 261, 266 (1st Cir. 1965): "It has been suggested that classification by race is unlawful regardless of the worthiness of the objective. We do not agree. The defendants' proposed action does not concern race except insofar as race correlates with proven deprivation of educational opportunity. This evil satisfies whatever `heavier burden of justification' there may be. Cf. McLaughlin v. State of Florida, 1964, 379 U.S. 184, 194, 85 S.Ct. 283, 13 L.Ed.2d 222."

Although there may be some dissent, see, e. g., Blocker v. Board of Education, 226 F.Supp. 208 (E.D.N.Y.1964), courts generally agree that communities have no constitutional duty to undo bona fide de facto segregation. Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966); Downs v. Board of Education, 336 F.2d 988 (10th Cir. 1964), cert. denied 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, 324 F.2d 209 (7th Cir. 1963), cert. denied 377 U.S. 924, 84 S. Ct. 1223, 12 L.Ed.2d 216 (1964). See also, Springfield School Committee v. Barksdale, supra. The line between proscribed de jure and permitted de facto segregation has been described by this court as whether "race was made the basis for school districting, with the purpose and effect of producing a substantially segregated school." Taylor v. Board of Education, 294 F.2d 36, 39 (2d Cir.), cert. denied 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961).

That there may be no constitutional duty to act to undo de facto segregation, however, does not mean that such action is unconstitutional. Since Brown is the law, some attention to color count is necessary to see that it is not violated, for it affirmatively requires admission to public schools on a racially non-discriminating basis. What is prohibited is use of race as a basis for unequal treatment.2 Perhaps even districting solely on the basis of nonsegregation would be sustainable. Appellants alleged that was done here, but the copy of the plan and other documents submitted by appellants themselves demonstrate that other proper factors were in fact considered. The plan, therefore, does not violate any constitutional right of appellants.

The next question, however, is whether, even though Judge Henderson's ultimate answer was correct, the question he had to answer was insubstantial; so that a three-judge court need not be convened. Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). While the question may not be free from the slightest doubt, we do not find that such doubt as may exist can be said to be of such substance as to call for the use of the cumbersome three-judge machinery of 28 U.S.C. § 2281 for its determination.

Consideration of race is necessary to carry out the mandate in Brown, and has been used, as noted, in cases following Brown. Where its use is to insure against, rather than to promote deprivation of equal educational opportunity, we cannot conceive that our courts would find that the state denied equal protection to either race by requiring its school boards to act with awareness of the problem. Whether § 2281 would require reversal, where the single district judge upheld the state action, and three circuit judges agreed with this result, even though the question were thought substantial, we need not determine (see Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 114 (2d Cir. 1966)). In...

To continue reading

Request your trial
44 cases
  • People ex rel. Lynch v. San Diego Unified School Dist.
    • United States
    • California Court of Appeals Court of Appeals
    • August 13, 1971
    ...Supra, 419 F.2d 1387, 1390; United States v. School District 151 of Cook County, Illinois, Supra, 404 F.2d 1125, 1130; Offermann v. Nitkowski, 2 Cir., 378 F.2d 22, 24; Board of Education of Oklahoma City Pub. Sch., etc. v. Dowell, 10 Cir., 375 F.2d 158, 166, cert. denied 387 U.S. 931, 87 S.......
  • Bakke v. Regents of University of California
    • United States
    • California Supreme Court
    • September 16, 1976
    ...to undo de facto school segregation, even if such de facto segregation is not in itself unconstitutional. (See, e.g., Offermann v. Nitkowski (2d Cir. 1967) 378 F.2d 22; Wanner v. County School Board (4th Cir. 1966) 357 F.2d 452; Springfield School Comm. v. Barksdale (1st Cir. 1965) 348 F.2d......
  • San Francisco Unified School Dist. v. Johnson
    • United States
    • California Supreme Court
    • January 26, 1971
    ...reject the asserted affirmative duty to remedy de facto segregation; notable decisions are those of the Second Circuit (Offermann v. Nitkowski (1967) 378 F.2d 22, 24 (dictum); Sixth Circuit (Deal v. Cincinnati Board of Education (1966) 369 F.2d 55, 61--62); Seventh Circuit (Bell v. School C......
  • Contractors Ass'n of Eastern Pa. v. Secretary of Labor
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 22, 1971
    ...aff'd, 431 F.2d 1254 (3d Cir. 1970); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931 (2d Cir. 1968); Offermann v. Nitkowski, 378 F.2d 22, 24 (2d Cir. 1967). It has been said respecting Title VII that "Congress did not intend to freeze an entire generation of Negro employees......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT