509 F.2d 580 (1st Cir. 1974), 74--1251, Morgan v. Kerrigan

Docket Nº74--1251.
Citation509 F.2d 580
Party NameTallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellants.
Case DateDecember 19, 1974
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 580

509 F.2d 580 (1st Cir. 1974)

Tallulah MORGAN et al., Plaintiffs-Appellees,


John J. KERRIGAN et al., Defendants-Appellants.

No. 74--1251.

United States Court of Appeals, First Circuit

December 19, 1974

Certiorari Denied May 12, 1975.

See 95 S.Ct. 1950.

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John O. Mirick, Boston, Mass., with whom Hale & Dorr, Boston, Mass., was on brief, for appellants.

J. Harold Flannery, Washington, D.C., with whom Laurence S. Fordham, John Leubsdorf, Foley, Hoag & Eliot, Boston,

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Mass., Robert Pressman, Eric E. Van Loon, Cambridge, Mass., Roger I. Abrams, Cleveland, Ohio, Thomas M. Simmons, Collins & Simmons, Boston, Mass., and Nathaniel R. Jones, New York City, were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Two decades after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the refractory issue of school desegregation for Boston reaches this court. It reaches us after scores of cases have been litigated and decided in the South, where state laws and constitutions had effectuated a dual school system along racial lines. Perhaps more relevantly, it reaches us after a number of decisions affecting northern cities where segregation had often resulted from local practices rather than laws. 1 Most significantly, this case comes to us (and the district court) only after passage of a state Racial Imbalance Act in 1965, Mass.G.L. c. 71, §§ 37C, 37D, 2 and almost a decade of litigation before the courts of Massachusetts and state and federal administrative bodies. 3

Despite rulings in most of these cases requiring affirmative action to comply with state law or with the federal constitution, little took place in Boston other than continued litigation. This action was filed in March, 1972, by black children attending the Boston public schools and their parents (later certified as proper representatives of the class of all such parents and children) against the Boston School Committee, its individual members, and the Superintendent of the Boston Public Schools (the 'city defendants' and appellants) and the Board of Education of the Commonwealth of Massachusetts, its individual members, and the Commissioner of Education (the 'state defendants'). 4 Plaintiffs sought declaratory

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and injunctive relief, alleging that various actions of the city defendants, hereinafter discussed, denied black children both the equal protection of the laws and equality of educational opportunity, in violation of the Thirteenth and the Fourteenth Amendments and federal civil rights statutes.


The district court made an exhaustive inquiry into the operations of the Boston School system. The parties cooperated in arriving at stipulations of undisputed facts and in facilitating the admission into evidence of depositions and testimony from prior proceedings. The introduction of live testimony and depositions from some thirty witnesses took fifteen trial days, and over 1,000 exhibits were produced. The court then painstakingly set forth the complex factual background, the reasoning leading to its findings, and its conclusions of law in a lengthy opinion issued June 21, 1974. Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.).

The court dealt not only with the fact of segregation in the Boston Schools, but with whether segregation was due to deliberate and purposeful discrimination by Boston school authorities. The 'segregative intent' of school officials has been a legal issue of importance in school desegregation cases. See Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). This is so because under the Constitution, no state may deny to its citizens the equal protection of the laws, and a school system segregated by the deliberate design of local authorities reflects the action of the state or municipality as surely as if segregation had been required by statute. Having found such deliberate design, the court left the question of remedy to a future time. This appeal is therefore limited to the court's findings and conclusions relating to purposeful segregation.

In its opinion the court, after reviewing the background of litigation we have noted, n. 3 supra, described the structure and powers of the Boston School Committee and the complex organization of schools under its command--a mixture of schools serving districts and schools serving the entire city, some on the basis of examinations and some not; a combination of three methods of grade progression (8--4; 5--4--4; 6--3--3); and, in addition to elementary, 'middle' (grades 6, 7 and 8), junior high (grades 7, 8 and 9), and high schools, special schools such as 'magnet' schools, a model demonstration system, and vocational schools. The court next found that while the 1971--1972 public school enrollment comprised 59,300 whites (61%) and 30,600 blacks (32%), 5 this ratio was approached in few of the schools, whatever their geographic area, grade level, or type. 6 This fact of racial imbalance in the public schools led the court to inquire 'whether the defendants have intentionally and purposefully caused or maintained racial segregation in meaningful or significant segments of the Boston public school system, in violation of the Fourteenth Amendment.' 379 F.Supp. at 425. The court looked at defendants' actions in six areas: (1) facilities utilization and new structures, (2) districting and redistricting,

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(3) feeder patterns, (4) open enrollment and controlled transfers, (5) faculty and staff, and (6) vocational and examination schools.

It found: as to (1), 'affirmative acts . . . related to overcrowding which . . . intentionally created or maintained racial segregation' (379 F.Supp. at 427); as to (2), that, while defendants made no changes to bring about segregation where there was none before, they made at least one change to perpetuate racial segregation; consistently rejected proposals to redistrict for racial balance, being aware of the racial impact of their actions, while engaging in redistricting when no racial implications were involved; and finally, to meet pressure from the state Board of Education and the courts, proposed a review of all district lines and a comprehensive plan for achieving racial balance, only to sabotage both proposals; as to (3) that defendants inaugurated changes in feeder patterns for the 1967--1968 and 1968--1969 school years, with knowledge of the probable consequences and 'for the purpose of promoting racial segregation' (379 F.Supp. at 449), which routed black students into high schools beginning with a ninth grade while white students, equipped with transfer options, were channeled into high schools beginning with tenth grade; as to (4), that 'open enrollment and controlled transfer policies were managed under the direction of the defendants with the singular intention to discriminate on the basis of race' (379 F.Supp. at 455).

The court, addressing the issues relating to faculty and staff, found that 74 percent of the system's 356 black teachers and all black principals and assistant principals were in predominantly black schools. After scrutinizing the record and policies as to transfers, the exclusive dependence on a written examination for hiring, and the obstacles to promotion of administrators, the court held that plaintiffs had established their equal protection and equal educational opportunity claims and also their claim that defendants violated their right to have the school system operated free of racial discrimination in the selection and promotion of teachers and staff. Finally, seeing the high degree of segregation in the city's elite examination high schools and trade schools, the former white, the latter black, the court relied on the presumption of intent recognized in Keyes v. School Dist. No. 1, 413 U.S. 189, 207--211, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), which it found unrebutted. Other findings and conclusions will be discussed where relevant.


Defendants do not challenge the findings below as to the extent of racial segregation in Boston's schools. Nor do they, in the main, challenge findings as to what they have done or not done. Their position is that the present segregation is not a product of their intent, but is 'due to factors over which the city defendants have had and have no control, or is due to the policy of providing neighborhood schools, a policy which long predated any segregation now complained of, which city defendants claimed was constitutionally permissible.' 7 Defendants view the proof as establishing only that 'the city defendants were faced with a school system in which considerable de facto segregation existed, and continued to operate that school system without taking affirmative action to counteract that de facto segregation.'

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Throughout their brief and argument, they characterize their conduct as 'mere inaction' or 'mere failure to take affirmative action'.

We note, but leave for later discussion, the fact that the district court made a number of findings based on the initiation of new actions and policies which could hardly be termed 'mere inaction', e.g., feeder patterns, open enrollment and controlled transfer policies. Thus the district court's findings of intentional discrimination have support quite apart from the evidence of inaction. To some extent, however, the district court, as in its treatment of defendants' approach to redistricting, did place emphasis on the Committee's rejection of all proposals to redistrict when the failure to do so would predictably increase or perpetuate segregation.

We therefore deal with defendants' basic contention that school authorities in a northern city which has never had a statutory dual school system cannot be found to have violated the constitution...

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