388 F.Supp. 581 (D.Mass. 1975), Civ. A. 72-911, Morgan v. Kerrigan

Docket NºCiv. A. 72-911
Citation388 F.Supp. 581
Party NameMorgan v. Kerrigan
Case DateJanuary 28, 1975
CourtUnited States District Courts, 1st Circuit, District of Massachusetts

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388 F.Supp. 581 (D.Mass. 1975)

Tallulah MORGAN et al., Plaintiffs,

v.

John J. KERRIGAN et al., Defendants.

Civ. A. No. 72-911-G.

United States District Court, D. Massachusetts.

Jan. 28, 1975

J. Harold Flannery, Robert Pressman, Eric Van Loon, Center for Law and Ed., Cambridge, Mass., Roger I. Abrams, Case Western Reserve University, Cleveland, Ohio, John D. Leubsdorf, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

James J. Sullivan, Jr., DiMento & Sullivan, Boston, Mass., for School Committee.

Richard W. Coleman, Segal, Roitman & Coleman, Boston, Mass., for School Administration.

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Sandra Lynch, Boston, Mass., for State Bd. of Ed.

Thayer Fremont-Smith, Choate, Hall, & Stewart, Boston, Mass., for Boston Home & School Association.

Kevin Moloney, Boston, Mass., for City of Boston Law Dept.

John F. McMahon, Boston, Mass., for Boston Teachers Union.

MEMORANDUM AND ORDERS ON FACULTY RECRUITING AND HIRING

GARRITY, District Judge.

In its opinion filed June 21, 1974 in this case, the court found intentional segregation of the Boston public schools by the Boston School Committee and Superintendent of Schools (hereinafter the 'city defendants'). One aspect of that segregation was the racial composition and distribution of faculty members in the school system. The court found the low percentage of black teachers to be a result of unconstitutionally discriminatory use of a cut-off score on the National Teacher Examination, inadequate minority recruitment efforts, and the reputation of Boston as an anti-black, segregated school system. filings, including proposed findings of filings, including proposed findings of fact, as to the proper scope of a long-term remedy that will eliminate the effects of past discrimination and accomplish desegregation in the areas of faculty hiring and recruitment. Several hearings have been devoted to this subject. Much of the discussion and dispute among the parties has concerned the use of a hiring ratio, a percentage goal for hiring of black teachers and the choice of the appropriate percentage goal. Many of the findings proposed by the parties are directed to this point.

Blacks comprised about 16.32% Of Boston's population in 1970, which was an increase from 9.05% In 1960. A reasonable projection from these census figures is that Boston's population now is about 19% Black. Black children, however, made up about 35% Of the students attending public schools in the school year 1973-74.

In the 1973-74 school year, there were 373 black teachers of a total of 5214, or 7.1%. On July 31, 1974 the court entered an order which was implemented before the opening of school in September 1974. This order required the hiring of one black teacher for each white teacher hired, to the extent that qualified black candidates were available. Implementation of this order has resulted in an increase in the percentage of black teachers in the system to 10.4%.

The propriety of using a population percentage as a goal is legally established in both school cases and other cases where remedies were fashioned for discrimination. Swann v. Charlotte-Mecklenburg Board of Education, 1970, 402 U.S. 1, 25, 91 S.Ct. 1267, 28 L.Ed.2d 554; United States v. Texas Education Agency, 5 Cir. 1972, 467 F.2d 848, 873; Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 1 Cir. 1974, 504 F.2d 1017.

The court has adopted 20%, approximately the black population of Boston, as an appropriate percentage goal for the hiring of black teaching faculty. This goal is below the black student population percentage, 35% In Boston schools, urged by plaintiffs and adopted in some other school cases, e.g., United States v. Texas Education Agency, supra; Keyes v. School District No. 1, 380 F.Supp. 673, D.Colo.1974, pp. 14-15 of final judgment and decree. The percentage of a minority group in the city's population is the goal adopted in numerous other discrimination cases, e.g., Boston Chapter N.A.A.C.P., Inc. v. Beecher, supra; Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315 (and cases cited therein).

City defendants argue that a percentage goal based on Boston's black population is too high. They suggest that the appropriate goal is at most the percentage of black college graduates in Boston or in the Northeast, which they argue represents the available pool of teachers for Boston teaching positions. Those

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percentages are about 5.25% And 4.24%, respectively, 1 and are below the present percentage of black faculty in Boston's schools. In our opinion such a goal would not be remedial or equitable.

We note first that the findings in the court's opinion of June 21, 1974 revealed that in the year 1972-73 5.4% Of the permanent teachers in the Boston school system were black, a percentage above that proposed by defendants as an appropriate goal. 2 The court found, and the Court of Appeals affirmed, that acts of intentional racial discrimination in recruiting and hiring teachers had occurred. The conclusion is inescapable that without such discrimination there would have been more than a 5.25% Or a 4.24% Black teaching staff in Boston. Secondly, city defendants' proposed goal would do nothing to eliminate the effects of the acts of past discrimination found by the court. The court also found that the small number of black teachers in Boston schools, a result of discriminatory practices, was one hallmark of a dual segregated school system. As such, it contributed to the denial of the plaintiff class' rights to equal educational opportunity. To achieve the mandate of the Supreme Court in Green v. County School Board, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, to eliminate racial discrimination 'root and branch', the presence of black teachers in numbers more closely proportionate to the number of black students in the schools is an important step.

The use of hiring ratios and their limited preferential treatment of black applicants in remedying past discrimination has been recognized as a permissible method of fulfilling the court's duty to 'render a decree which will so far as possible eliminate the discriminatory effects of the past . . .', Louisiana v. United States, 1965, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709. Boston Chapter N.A.A.C.P., Inc. v. Beecher, supra; Associated General Contractors, Inc. v. Altshuler, 1 Cir. 1973, 490 F.2d 9; Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725; Carter v. Gallagher, supra.

Therefore...

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