Pride v. COMMUNITY SCH. BD. OF BROOKLYN, NY SCH. DIST.# 18, 293

• Decision Date: 21 November 1973
• Docket Number: No. 293,Docket 73-2223.,293
• Citation: 488 F.2d 321
• Parties: Michael and Cynthia PRIDE, minors, by their mother and next friend Bulena Pride, et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, a body corporate, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

488 F.2d 321 (1973)

Michael and Cynthia PRIDE, minors, by their mother and next friend Bulena Pride, et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, a body corporate, et al., Defendants-Appellees.

No. 293, Docket 73-2223.

United States Court of Appeals, Second Circuit.

Argued October 3, 1973.

Decided November 21, 1973.

Doron Gopstein, New York City (Norman Redlich, Corp. Counsel of the City of New York, and Michael B. Rosen, Brooklyn, N. Y., on the brief), for defendants-appellees.

James I. Meyerson, N.A.A.C.P., New York City (Nathaniel R. Jones, N.A.A. C.P., New York City, I. Frederick Shotkin and Delson & Gordon, New York City, on the brief), for plaintiffs-appellants.

Before HAYS, FEINBERG and TIMBERS, Circuit Judges.

HAYS, Circuit Judge:

This is our second encounter with the dispute concerning the placement in New York City public schools of children from the Tilden Houses of Brooklyn.¹ In this phase of the litigation plaintiffs moved for a preliminary injunction against an order by the City Board of Education assigning Tilden House children first entering public school to districts other than District 18. The United States District Court for the Eastern District of New York denied the motion. The court found that plaintiffs had failed to show probability of success and irreparable harm or that the balance of hardships weighed decidedly in their favor. We affirm.

I. THE FACTS

The Tilden Houses are located in the predominantly black and Puerto Rican section of Brooklyn known as Brownsville. To the south and southeast of Brownsville lie the racially mixed neighborhood of East Flatbush and the predominantly white neighborhood of Canarsie. In 1962 the Board of Education, in an effort to promote integration, rezoned the Tilden House children from the neighborhood Brownsville schools, which subsequently became part of District 23, into schools in East Flatbush, which has become part of District 18.

In 1970 much of the authority for governing the elementary and junior high schools of New York City was transferred from the City Board of Education to Community District School Boards pursuant to New York's School Decentralization Law (New York Education Law, Article 52-A, § 2590 et seq. McKinney's 1970 Consol.Laws, c. 820).

In May, 1971 the Community School Boards of Districts 18 and 23 entered into an agreement whereby Tilden House children would be zoned into their neighborhood schools in District 23 for the school year beginning September 1971. School Chancellor Scribner rejected this agreement, and the City Board of Education and the Commissioner of Education sustained the Chancellor's decision.

Further difficulties developed when the District 18 Community Board refused to assign Tilden House children to Junior High School 285, the junior high school in District 18 which Tilden House children had previously attended. Chancellor Scribner again reversed the Community Board and ordered it "to assign the Tilden Housing children at the junior high school level either to J-285 . . . and/or to other schools in your district where integrated education would be possible." The Community Board refused to follow this directive, and Chancellor Scribner superseded the Community Board and ordered that the Tilden House children be given the option of attending Junior High Schools 285, 211 or 68, all within District 18. He also ordered the Community Board to devise a plan designed ". . . more nearly to equalize integration in these schools starting with the 1973-74 school year."

In January, 1973 the Community Board presented its plan. At this time the ethnic compositions of the three junior high schools were as follows:

                Others Black and
                School (white) Puerto Rican
                J.H.S.  68         98%             2%
                J.H.S. 211         66%            34%
                J.H.S. 285         42%            58%
                

The three schools are in the Canarsie section of District 18. JHS 285 is closest to East Flatbush, while JHS 68 is furthest from East Flatbush and Brownsville. The Community Board projected the following figures for 1975 if the existing zoning continued:

                Others Black and
                School (white) Puerto Rican
                J.H.S.  68         85%            15%
                J.H.S. 211         70%            30%
                J.H.S. 285         50%            50%
                

The Community Board's plan provided for zoning the Tilden House children into other districts, though it did not indicate which districts.

In January, 1973 Chancellor Scribner accepted the Community Board's plan with an amendment providing that the Tilden House children would continue to attend junior high schools in District 18, subject to future review in light of changing population patterns.

The Community Board appealed the decision of the Chancellor to the City Board of Education. The City Board conducted hearings and on March 30, 1973 issued its decision holding that neither the Community Board's plan nor the Chancellor's plan fully considered that:

"massive ethnic changes are taking place in many of the elementary schools, particularly those into which the Tilden House pupils are zoned. It is clear that the residential changes in these school zones have resulted in the `other\' enrollment becoming the minority. Obviously the changes at the elementary school level have major impact on the junior high schools which are the subject of this appeal.

"This Board finds that neither the plan presented by Community School Board 18 nor the . . . modification of this plan by the Chancellor fully takes these changes into account. The policy of this Board is and continues to be to encourage quality integrated education to the extent feasible.

"The use of children as pawns in boycots and other pressure tactics is demagogic and irresponsible and can have no influence whatever on the decision of the Board of Education. On the other hand, the Board feels that it would be just as irresponsible and demagogic to continue to send out of district minority group youngsters indefinitely into schools with rapidly growing minority registers under the guise of promoting quality integrated education."

The City Board ordered that:

"commencing in September 1973 Tilden House children newly entering the first grade who would have entered District 18 schools are to be zoned and permitted options to attend schools in other districts. . . ."²

Acting Chancellor Irving Anker later implemented the order by directing that newly entering Tilden House children be zoned into Districts 20, 21 and 22, with parents of each child to select among the designated schools within such districts.

The racial mix and utilization levels of the schools in Districts 18, 20, 21 and 22 are as follows:

                Puerto Other
                Elementary Black Rican (White) Utilization
                District 20     9%      11%      78%         73%
                District 21    16%      11%      72%         73%
                District 22    16%       3%      80%         78%
                District 18    35%       6%      58%         89%
                  Junior
                High School
                District 20    14%      13%      72%        100%
                District 21    16%       9%      74%         87%
                District 22    15%       1%      82%        101%
                District 18    47%       7%      45%        105%
                

In May, 1973 the Chancellor submitted a list of "designated" schools within Districts 20, 21 and 22 which the Tilden House children were eligible to attend. Of the 37 designated schools all have an "other" enrollment of over 60%, 36 have an "other" enrollment of over 80%, and 12 have an "other" enrollment of over 90%. The five elementary schools in District 18 which the Tilden House children had attended prior to the March 30 order had shown the following ethnic compositions:

                Puerto
                Black Rican Other
                PS 135    57.9%     11.4%    30.7%
                PS 244    49.9      11.4     38.7
                PS 235    57.7      11.2     31.1
                PS 233    53.2      12.1     34.7
                PS 268    73.6       7.8     18.6
                

Within District 18 seven elementary schools had "other" enrollments over 60%; in three of these the "other" enrollment was over 90%.

II. THE PRELIMINARY INJUNCTION STANDARD

In our earlier opinion in this case Pride I this court stated as follows the standard by which the district court must be guided in deciding upon a motion for a preliminary injunction:

"We repeatedly have emphasized the heavy burden on a party seeking the extraordinary remedy of preliminary injunctive relief. The standard that has evolved is that the moving party `assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that it has raised serious questions going to the merits and that the balance of hardships tips sharply in its favor.\' Stark v. New York Stock Exchange, 466 F.2d 743, 744 (2 Cir. 1972) (emphasis added); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2 Cir.), cert. denied, 394 U.S. 999 ,89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). We find that standard to be particularly appropriate here where there is a strong public interest in the outcome of the dispute. See, e. g., Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692-693, 698-699 (2 Cir. 1973); Exxon Corp. v. City of New York, 480 F.2d 460 (2 Cir. 1973).

"With this standard in mind, we turn to an examination of the evidence adduced at the hearing below, recognizing that in reviewing the denial of a motion for a preliminary injunction our role is limited. `A clear abuse of discretion . . . must be shown to an appellate court in order to obtain a reversal of the trial court\'s denial of temporary injunctive relief.\' Checker Motors Corp. v. Chrysler Corp., supra, 405 F.2d at 323; Dino de Laurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373, 374-375 (2 Cir. 1966)."

482 F.2d at 264 (footnote omitted).

III. PROBABILITY OF SUCCESS

The district court considered both the intent and the effect of the March 30 plan of the City Board and found it not discriminatory in either respect. We agree.

(A) Discriminatory Intent

Absence of a...