512 F.2d 37 (2nd Cir. 1975), 74-2263, Hart v. Community School Bd. of Ed., N.Y. School Dist. No. 21

Docket Nº:74-2263 and 74-2253.
Citation:512 F.2d 37
Party Name:Jeffrey HART, as a minor by his parent and next friend, Doris Hart, et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF EDUCATION, NEW YORK SCHOOL DISTRICT #21, a body corporate, et al., Defendants-Appellees-Appellants, Irving Anker, Chancellor of the Board of Education of the City of New York, Defendant-Appellee. The COMMUNITY SCHOOL B
Case Date:January 27, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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512 F.2d 37 (2nd Cir. 1975)

Jeffrey HART, as a minor by his parent and next friend,

Doris Hart, et al., Plaintiffs-Appellants,



DISTRICT #21, a body corporate, et al.,


Irving Anker, Chancellor of the Board of Education of the

City of New York, Defendant-Appellee.


DISTRICT #21, by its President and Member, Evelyn

J. Aquila, et al., Defendants and

Third-Party Plaintiffs-Appellants,


John V. LINDSAY, Mayor of the City of New York, et al.,

Third-Party Defendants-Appellees,


Barbara Baucom et al., Applicants for Intervention.

Nos. 362, 503, 504 and 619, Dockets 74-2076, 74-2262,

74-2263 and 74-2253.

United States Court of Appeals, Second Circuit

January 27, 1975

Argued Dec. 17, 1974.

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[Copyrighted Material Omitted]

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Robert S. Hammer, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for third-party defendants-appellees New York State Div. of Housing and Community

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Renewal, New York State Urban Dev. Corp. and Officials.

Jeanne Hollingsworth, New York City (Edward W. Norton, Gen. Counsel, New York City Housing Authority, New York City, of counsel), for third-party defendant-appellee New York City Housing Auth.

Cyril Hyman, Asst. U. S. Atty., Brooklyn, N.Y (David G. Trager, U. S. Atty., E.D.N.Y., and Paul B. Bergman, Asst. U. S. Atty., of counsel), for third-party defendants-appellees George Romney and William S. Green.

Nancy E. LeBlanc, MFY Legal Services, New York City (George C. Stewart, MFY Legal Services, New York City, and Thomas N. Rothschild, East New York Legal Services, Brooklyn, N.Y., of counsel), for intervenors.

James I. Meyerson, N. A. A. C. P., New York City (Nathaniel R. Jones, New York City, of counsel), for plaintiffs-appellants.

Hyman Bravin, New York City, for defendants-appellees-appellants, Community School Board 21 and its Members.

Leonard Koerner, New York City (Adrian P. Burker, Corp. Counsel of the City of New York, L. Kevin Sheridan, New York City, and Elliot P. Hoffman, Brooklyn, N.Y., of counsel), for defendant-appellee Chancellor of the City of New York.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

This is an appeal from a final judgment in what the District Court (Weinstein, J.) described as the first New York City school desegregation case to reach a federal court. Hart v. Community School Board of Brooklyn, New York School District #21, 338 F.Supp. 699 (E.D.N.Y.1974) (opinion); id. at 769 (order).

A class action by school children plaintiffs was brought by lawyers for the National Association of Colored People on behalf of children attending Coney Island's Mark Twain Junior High School, J.H.S. 239 ("Mark Twain"). The defendants are the Community School Board of Brooklyn, New York, School District Number 21 ("CSB 21"), its members, and the Chancellor of the Board of Education of the City of New York. The action, begun on August 4, 1972, alleged that the defendants are maintaining Mark Twain as an unconstitutionally racially segregated and underutilized school. The plaintiffs prayed for declaratory and injunctive relief, including a direction to the defendants "to formulate and implement forthwith a comprehensive plan which will eliminate, with deliberate speed, the racially segregated and underutilized nature of Mark Twain Junior High School and which will provide for and assure equal educational opportunities for the plaintiffs and the members of their class." The defendant CSB 21 and its members interposed a general denial and defended on the ground, inter alia, that if segregation exists, it is due to housing patterns fostered and maintained by the city, state, and federal authorities who have been impleaded as third-party defendants. 1

The third-party complaint filed by CSB 21 sought declaratory and injunctive relief on a wide front. It sought a declaration that the third-party defendants, city, state, and federal, are engaged in a policy of affirmative action designed to perpetuate racial imbalance in public and public-aided housing, that this policy is the "basic cause for racial imbalance and segregation in the public school systems of the City", that approval of public housing project construction sites in Coney Island, in particular, perpetuates, segregated living patterns, and that the City has established a policy of

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separate but equal to housing and educational facilities. The specific relief requested against the third-party defendants was to direct that they act to desegregate existing public housing in the City, particularly in Coney Island, and execute plans to desegregate all presently segregated New York City public housing projects. The third-party complaint also sought a direction to the Federal and State defendants not to approve new loans and new grants to the City until its discriminatory practices have been eliminated. It finally sought an order permanently requiring to the third-party defendants to cease and desist from illegally and unconstitutionally processing and selecting in a discriminatory manner tenants' applications in public and public-aided housing.

By filing this far-reaching third-party complaint the local school board did far more than seek to set up segregative acts of other agencies as a defense for itself. It sought to charge the other agencies with full responsibility. It succeeded initially in getting the District Judge to convert a narrow issue involving a single junior high school with a capacity of about 1,000 students into what could only become an issue so broad as to defy judicial competence, a matter which would require coordinated legislative and executive action by three governments, federal, state and city, for a solution. In the words of the Supreme Court, "(o)ne vehicle can carry only a limited amount of baggage." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554 (1971).

The problem posed by the third-party complaint had at its core the intractable question of how urban slums can be rehabilitated for the benefit of people already living in the area, when they are largely from the minority group, without continuing the already existing racial population pattern. On the other hand, the dislocation of white residents, in other neighborhoods, presents problems of difficulty. And it is possible that "black" schools tend to make neighborhoods in their vicinity black as well.

As the Supreme Court said, with respect to the objective in school cases, "it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools." Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 23, 91 S.Ct. at 1279.

The District Court refused, however, to dismiss the third-party action on motion of the third-party defendants. 2 The Court determined that the third-party defendants would have to remain in the case to insure that a comprehensive remedy could be granted by the Court.

A full trial was held both on the original complaint and on the third-party complaint commencing on January 2, 1973.

On December 19, 1973, the District Court announced its decision. The Court stated that an opinion would follow, but that it had decided that the School Board and Chancellor were liable for conducting a segregated school in violation of the Constitution; and that the Court would require a Plan, effective in September, which would provide that the school population of Mark Twain not deviate more than ten percent from the average ratio of minority to white population in District # 21.

On January 28, 1974, the Court filed a 152 typewritten page decision and order

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accordingly. 383 F.Supp. 699 (E.D.N.Y.1974). It did not find the third-party defendants liable over for the situation at Mark Twain, "mooted" the action as to them, but retained jurisdiction over them for purposes of relief. CSB 21 filed a timely Notice of Appeal from the order on February 21, 1974, to protest the "mooting" of CSB 21's third-party complaint.

The parties were ordered to submit a plan in conformity with the decision by March 1, 1974 to be placed in operation in September, 1974. The parties submitted plans on March 1. The Court held hearings and determined to appoint a Special Master.

On April 2, 1974 the Court appointed Curtis J. Berger as Special Master, and found 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 Twin is postponed to September, 1975." 3

Appellants sought a reinstatement of the original September, 1974 date, but the Court adhered to its view. Appellants sought to appeal to this Court, but the appeal was dismissed on the ground that the District Court had never issued an injunction from which an appeal could be taken. 497 F.2d 1027 (1974) (Friendly, J.); see Taylor v. Board of Education, 288 F.2d 600 (2 Cir.1961).

The District Court, after the Special Master had reported in July, had before it three basic plans for desegregation of Mark Twain: 1)a plan proposed by the School Board; 2) a plan, quite similar but more detailed, by the Special Master; and 3) a plan proposed by Professor Dodson, appellants' expert on educational desegregation, who had devised several alternative plans, but favored his Model II plan.

The District Court entered a final judgment on July 26...

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