423 F.2d 121 (2nd Cir. 1970), 135, Norwalk Core v. Norwalk Bd. of Ed.

Docket Nº:135, 33645.
Citation:423 F.2d 121
Party Name:NORWALK CORE et al., Plaintiffs-Appellants, v. NORWALK BOARD OF EDUCATION, etc., Defendants-Appellees.
Case Date:March 10, 1970
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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423 F.2d 121 (2nd Cir. 1970)

NORWALK CORE et al., Plaintiffs-Appellants,

v.

NORWALK BOARD OF EDUCATION, etc., Defendants-Appellees.

No. 135, 33645.

United States Court of Appeals, Second Circuit.

March 10, 1970

Argued Nov. 14, 1969.

Jonathan W. Lubell, New York City (Lubell & Lubell, and Stephen L. Fine, New York, on the brief), for plaintiffs-appellants.

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Frank W. Murphy, Norwalk, Conn. (Robert H. Rubin, Corp. Counsel for the City of Norwalk, Norwalk, Conn., on the brief), for defendants-appellees.

Before MOORE, KAUFMAN and HAYS, Circuit Judges.

MOORE, Circuit Judge.

This action has been brought by two membership associations, Norwalk Core, a/k/a Norwalk Chapter of the Congress of Racial Equality, and Roodner Court Fair Rent Association, and by two public elementary school students (by the parents or next of kin) of Norwalk, Connecticut, for declaratory and injunctive relief. The defendant is the Norwalk Board of Education (the Board). In substance plaintiffs ask a federal court to override the policies of the Board in certain aspects of its current operation of the Norwalk school system and to decree that the Board establish a neighborhood school or schools in Black and Puerto Rican neighborhoods.

After the action was commenced, another group sought to intervene alleging deprivation because of 'the policy of racial segregation demanded by the plaintiffs in their complaint in this action.' The motion was denied. 298 F.Supp. 208, 209. However, the court held that the action should be maintained as a class action. 298 F.Supp. 210. Although a motion for a temporary restraining order had been denied, 298 F.Supp. 203, the court held a trial on the merits. During the five days of trial, some eight witnesses were heard, including a member and former member of the Board, the Superintendent of Schools, the Directors of Elementary Education, a teacher, a resident in the neighborhood of the Ely School, the Dean of the Norwalk Community College and a captain of the Norwalk Police Department.

In an opinion which reviewed the facts presented on the trial and which carefully analyzed the problems with which the Board had to cope in the light of existing realities, the Court dismissed the complaint, 298 F.Supp. 213.

This case does not call for a treatise on educational theories in vacuo. Nor is it the function of a federal court to resolve the myriad of conflicts which exist amongst educators themselves as to the various questions here involved. The wisdom or the harmful effects of bussing, a neighborhood school in an almost totally Black and Puerto Rican residential area, the percentages of races which should be allotted to each school, these questions are all largely academic unless related to a specific fact situation. The racial ingredients of schools cannot be prescribed with such certainty of a correct optimum result as might be found in a gourmet cook book specifying the proper portions for a de luxe casserole. Here the courts must pass upon an actual-- not a hypothetical-- situation.

Under our democratic system of government in most of our communities the education of our youth is entrusted by popular consent to a Board of Education, either elected or appointed. Under it are usually a Superintendent of Schools and appointed teachers. Their control, however, is not absolute because fiscal policies are under the supervision of other branches of government and ultimately these policies are made by, or are reviewable by, the voters. And so in Norwalk.

Two problems faced the Board, the physical problem of plant and equipment; the education problem of integration in the light of the facilities available.

On November 27, 1962, the Board adopted 'Policy 5122a' entitled 'Provisions for Intergroup Experiences and the Determination of School Districts.' The policy was couched in generalities. This was necessary because implementation would depend upon the existing situations at various future times. Amongst policy declarations were:

'Our objective and duty is to give every child in Norwalk the best possible education. We have followed a policy of providing equal educational opportunity without regard to the race, color,

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or creed of any child and shall continue the policy. 'Intergroup experiences are desirable in helping children learn appreciation and respect for the various groups comprising our population. * * *'

'3. In planning new school districts, we shall seek to avoid or reduce racial concentrations as much as possible.'

THE SCHOOLS PRIMARILY INVOLVED

The Ely School

Located in a predominantly Black and Puerto Rican area, this school had a substantial racial imbalance. After the adoption of Policy 5122a, various proposals were made by civic groups at and after public meetings. The plans did not meet with success and in September 1965 all classes except kindergarten (closed down later) were discontinued.

Columbus-Lincoln School

Use of Lincoln because of obsolescence was discontinued at the end of the school year 1964 and the building thereafter demolished. Columbus was inadequate for the Columbus-Lincoln students.

West Avenue School

Standing in the path of a new highway (U.S. Route 7), this building was condemned and demolished.

The Board, faced with this physical situation, solved it as to Ely by bussing Black students to other schools, white students walking to Columbus; as to Columbus by bussing some 200 Black students from the area to other schools; and as to non-existent West Avenue by having all students bussed or walk to other schools.

The thrust of plaintiffs' complaint is that they are being deprived of a neighborhood school in a predominantly Black and Puerto Rican area. They point to the existence of schools predominantly white in areas also predominantly white. They do not contend that they have been denied equal educational opportunities. Rather they complain of the 'means by which such equal education opportunities should be provided,' 298 F.Supp. at 224. More specifically, plaintiffs do not assert 'an absolute right to a neighborhood school or that they had an absolute right to be free of bussing to a school in a district beyond that in which they resided.' What they seek, in effect, is a 'continuance of schools in the Black and Puerto Rican communities and bussing of some white students into these schools.'

However, the problem confronting the Board at the time of this action was not theoretical; it was how best to maintain a school system consistent with praiseworthy policies of integration with the facilities then available. It had lost Lincoln and West Avenue. Ely had not worked out. The students had to go somewhere. It was all very well for the Board to adopt the policy that:

'1. The Board of Education will encourage housing authorities, real estate interests, employers, and recreational and social agencies to work actively in solving housing and other urban problems of racial concentration.'

But it was quite another proposition to rebuild Norwalk overnight or to decree residential desegregation. In the meantime the Board had to exercise its best judgment under the circumstances. And this was the problem to which the district court had to address itself. The findings of fact and the conclusions of law set forth in the court's opinion are supported by the proof and need not be repeated. 298 F.Supp. 213, 216-219.

The trial judge recognized that:

'A neighborhood is not an abstract concept but is dependent for its content upon the social and economic components which make up the neighborhood. 'Regarding the needs of all children of Norwalk as paramount in the selection of a site for a school, the Board,

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in good faith and without improper racial motivation or arbitrary disregard of the rights of a minority, concluded that educational facilities should not be maintained and constructed in plaintiffs' neighborhoods' (p. 222). 'Although people are equal and governmental classification by race will not be tolerated, neighborhoods are not. Reasonable administrative discrimination between neighborhoods in determining the location of public facilities such as schools is not subject to judicial intervention where those facilities remain available for use by all--particularly, as here, absent proof that such use is adversely affected by any required transportation. This Court will not intervene and strike down discretionary decisions of the administrative and legislative branches of government, so long as those decisions do not transgress the mandate of the Constitution' (p. 223).

In conclusion the Court said:

'Norwalk voluntarily has integrated its elementary school system by a plan which has eliminated the neighborhood school in underprivileged minority areas. Both the integration and the elimination have been undertaken...

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