Hart v. COMMUNITY SCH. BD. OF BROOKLYN, NY SCH. DIST.# 21, Docket 74-1453.

• Decision Date: 16 May 1974
• Docket Number: Docket 74-1453.
• Parties: Jeffrey HART, etc., et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #21, etc., et al., Defendants-Appellees. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK DISTRICT #21, etc., et al., Defendants and Third-Party Plaintiffs-Appellees, v. John V. LINDSAY, etc., et al., Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 1027 (1974)

Jeffrey HART, etc., et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #21, etc., et al., Defendants-Appellees.

The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK DISTRICT #21, etc., et al., Defendants and Third-Party Plaintiffs-Appellees, v. John V. LINDSAY, etc., et al., Third-Party Defendants-Appellees.

Docket 74-1453.

United States Court of Appeals, Second Circuit.

Argued April 30, 1974.

Decided May 16, 1974.

As Amended June 3, 1974.

James I. Meyerson, New York City (Nathaniel R. Jones, New York City, and NAACP Special Contribution Fund, of counsel), for plaintiffs-appellants Jeffrey Hart et al.

Hyman Bravin, New York City, for defendant Community School Bd. #21.

Elliot L. Hoffman, New York City (Adrian Burke, Corp. Counsel, New York City, of counsel), for defendant Chancellor Irving Anker and third-party defendant Housing and Development Administration.

Cyril Hyman, New York City (Edward Boyd, U. S. Atty., E. D. N. Y., of counsel), for third-party defendant U. S. Dept. of Housing and Urban Development.

Robert Hammer, New York City (Louis J. Lefkowitz, Atty. Gen., State of N. Y., of counsel), for third-party defendant N. Y. S. Div. of Housing and Community Renewal and Urban Development Corp.

Jeanne Hollingsworth, New York City, of counsel to Edward W. Norton, New York City, Gen. Counsel, for third-party defendant N. Y. C. Housing Authority.

Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

A motion by plaintiffs-appellants in this school desegregation case for a preference and cross-motions by the state and city defendants and third party defendants-appellees for dismissal or, in the case of the city defendants, alternatively for summary affirmance, raise problems of some procedural complexity.¹

The plaintiffs in this action in the District Court for the Eastern District of New York, characterized by the district judge as the "first New York City school desegregation case to reach a federal court," brought in August 1972, are a black, a Puerto Rican and a white child attending Mark Twain Junior High School (Public School #239) in Coney Island (suing in their own behalf and in behalf of others similarly situated) and the parents association of the school.² The original defendants were the Community School Board of Brooklyn, New York, District #21, of which Mark Twain is a part; the acting superintendent of the district; members of the school board; and the chancellor of the Board of Education of the City of New York. Claiming that any segregation was a result of housing patterns for which others were responsible, the school board and one of its members impleaded the City of New York, the mayor, and a variety of city, state and federal housing and urban development boards and officials. A motion for a preliminary injunction was withdrawn in November 1972 on assurance that there would be an expedited trial. Although this was completed by March 1973, plaintiffs ultimately renewed their motion for a preliminary injunction because of aggrievement at the length of time that appellees were being allowed for briefs.

When the district court denied this, an appeal was taken to this court, 28 U. S.C. § 1292(a)(1). Observing that the "litigation comes to us in a curious posture," the panel which heard that appeal directed that the judge either make the findings of fact and conclusions of law required by F.R.Civ.P. 52(a) when a temporary injunction is granted or denied, or reach an expedited final determination. Hart v. Community School Board of Brooklyn, 487 F.2d 223 (2 Cir. 1973) (per curiam). In pursuit of the second of these alternatives, and after taking further evidence and hearing argument, the judge, on December 19, 1973, announced that he was going to find the school board and the chancellor "liable under the Constitution, for conducting a segregated institution in violation of the Constitution," that he wanted a desegregation plan "effective September," but that he was doubtful that he would be able to file his opinion by the end of 1973, as he had hoped when the appeal from the denial of the temporary injunction was argued in this court.

On January 28, 1974, Judge Weinstein filed a comprehensive opinion of 152 typewritten pages. The court found that although Mark Twain had "never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education," Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 191, 93 S.Ct. 2686, 2689, 37 L.Ed.2d 548 (1973), the school's racial imbalance was due to factors for which the state was responsible under the criteria laid down in the Denver case, with particular emphasis on Mr. Justice Powell's concurrence. While we shall not attempt to encapsulate the long opinion in a sentence, the responsibility was thought to be two-fold: action or inaction by the school board; and action by the housing authorities which greatly increased the proportion of black and Puerto Rican families, particularly as a proportion of families with children, in what had been a predominantly white neighborhood. Because of this the court, although finding "liability" solely on the part of the school authorities, considered it appropriate to impose duties on the housing officials as well, and indeed in addition on the Police Commissioner, the Commissioner of Recreation, and the Metropolitan Transit Authority which had not yet been joined as parties.

In the portion of his opinion entitled "REMEDY", the judge stated that, in accordance with the invariable practice, "local school authorities must be given an opportunity to provide an acceptable plan for eliminating the illegal segregation at this school." The plan not only "must eliminate racial and ethnic segregation" but "should also provide a practical method of minimizing community conflicts and maximizing educational opportunities for the present and potential students of the school." The court then said, in a passage critical to the controversy before us:

The parties will have until March 1, 1974 to submit such a detailed plan to be placed in operation by September, 1974.

The plan was to take account of the "six basic elements in successful school integration" as listed by the Select Senate Committee on Equal Educational Opportunity, 92d Cong.2d Sess., Toward Equal Educational Opportunity 29-31 (Comm. Print 1972), of which early integration is only one. Various essential features were discussed in some detail. Housing officials of the city, state and federal governments were directed to provide a joint plan so designed that, in a phrase of the chancellor, the area would be "refertilized with new families." Police, transit and recreational officials were also directed to submit plans that would facilitate the desegregation. A hearing was set for March 5, 1974.

Hearings were held as scheduled and on April 1, 1974, Judge Weinstein filed a second opinion. He concluded that

Despite the cooperation of the parties and their counsel, it is apparent that a complete and integrated proposal covering education, housing and related matters has not yet been formulated.

He criticized the plans submitted by the plaintiffs, by the school board and by the chancellor. Plans submitted by other agencies were deemed inadequate, the judge saying he had received virtually nothing from the housing authorities. In light of all this, the judge wrote:

Testimony at the hearing made it clear that plans to deal comprehensively with conditions that have figured in the segregation of Mark Twain cannot be executed by September of 1974. Accordingly, the desegregation of Mark Twain is postponed to September 1975.

In order to avoid a repetition of the March 1974 experience, the judge appointed a highly qualified professor at the Law School of Columbia University as special master to work with the parties in the development of a suitable and comprehensive plan. The master was to deliver his final report no later than July 1, 1974 and a further hearing was set for July 15. After having unsuccessfully sought reconsideration of the one-year postponement of the desegregation date, plaintiffs appealed from that portion of the April 1, 1974 order and moved for a preference so that their appeal could be determined well before the beginning of the next school year. This having been denied by a single judge, plaintiffs moved for reconsideration.

The appealability of the direction for postponement cannot be considered in vacuo. Although the school board and its members and the acting superintendent of the district filed a protective notice of appeal from the decision of January 28, 1974,³ they did nothing actively to prosecute the appeal, evidently believing that the decision was not appealable under Taylor v. Board of Education of New Rochelle, 288 F.2d 600 (2 Cir. 1961). We there held that when a district court has simply found segregation by a school board to be unconstitutional and has directed the board promptly to submit a plan for ending it, without any "injunction" other than the direction to file the plan, the decision is not appealable at that time.⁴ However, if we were to hold the postponement of the effective date of the desegregation to be appealable, we would feel compelled to allow defendants, cf. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931), to contend not only that the postponement was proper but that desegregation should not have been ordered at all. We would thus be forced into consideration, on an expedited basis not necessitated by the district judge's own timetable, of a most serious constitutional question to which the district judge devoted months of thought, which the cooperative efforts of the judge, the master, and the parties, conceivably although perhaps optimistically, may make it unnecessary for us to decide at all, and which at least will be given concrete...