523 F.2d 917 (1st Cir. 1975), 75-1184, Morgan v. Kerrigan

Docket Nº:75-1184, 75-1194.
Citation:523 F.2d 917
Party Name:Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellees, Boston Home and School Association, Defendant-Intervenor-Appellant. Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellants.
Case Date:June 17, 1975
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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523 F.2d 917 (1st Cir. 1975)

Tallulah MORGAN et al., Plaintiffs-Appellees,

v.

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

Boston Home and School Association, Defendant-Intervenor-Appellant.

Tallulah MORGAN et al., Plaintiffs-Appellees,

v.

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

Nos. 75-1184, 75-1194.

United States Court of Appeals, First Circuit

June 17, 1975

Heard on Motion for Stay June 3, 1975.

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Thayer Fremont-Smith, Boston, Mass., with whom Owen S. Walker and Choate,

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Hall & Stewart, Boston, Mass., were on motion and memorandum for stay for Boston Home and School Association.

Matthew T. Connolly, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on motion for stay for the Boston School Committee.

John Leubsdorf, Boston, Mass., with whom Foley, Hoag & Eliot, Boston, Mass., Richard J. Hiller, New York City, Jeanne E. Mirer, Cambridge, Mass., J. Harold Flannery, Washington, D. C., Lawrence S. Fordham, Boston, Mass., Robert Pressman, Eric E. Van Loon, Cambridge, Mass., Rudolph F. Pierce, Keating, Perretta & Pierce, Boston, Mass., Roger I. Abrams, Cleveland, Ohio, Thomas M. Simmons, Collins & Simmons, Boston, Mass., and Nathaniel R. Jones, New York City, were on memorandum in opposition for Tallulah Morgan and others.

Sandra L. Lynch, Boston, Mass., for Massachusetts Board of Education.

Kevin F. Moloney, Boston, Mass., for Mayor of City of Boston, and others.

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

ON APPLICATIONS FOR STAY PENDING APPEALS

PER CURIAM.

Prior proceedings have established that the existence of segregation in the Boston school system has been brought about by the knowing and purposeful actions over the years of the city school authorities. 1 Now, with the instant motions to stay a district court implementation order of May 10, 1975, we begin to deal with the issues generated by the need to remedy this constitutional violation.

After the district court's decision in June, 1974, on the merits of plaintiffs' constitutional claim, the initial steps toward desegregation were governed by a plan (Phase I), formulated by the Board of Education of the Commonwealth of Massachusetts, which sought to reduce the number of racially imbalanced schools but did not purport to eliminate segregation. The Boston School Committee requested and was given time to prepare a substitute plan but did not do so in time for the opening of school in September, 1974. The district court ordered that a plan be filed by December 16, and when the Committee refused to approve the plan developed by its employees, counsel filed it with the court. The three committeemen who had voted against submission of the December 16 plan were held in civil contempt, but they purged themselves by authorizing and approving a new plan, filed with the court on January 27, 1975. In the meantime plaintiffs, representing black children and parents, filed an alternative plan. The district court sought assistance in evaluating these various proposals for Phase II; a panel of four masters was appointed to hold evidentiary hearings and make recommendations, and two experts were selected to assist both the masters and the court. The masters' report was filed on March 31. The court received thereafter new data furnished by the school department, modified the plan submitted by the masters, and issued its plan on May 10. The court's memorandum of decision followed on June 5.

Although full presentation of the parties' appeals in this complex matter will require several months, the case has come before this court now on the motions of the School Committee, a defendant, and the Boston Home and School Association, an intervenor-defendant, for a stay of the May 10 order of the district court. 2 Defendants ask that effectuation

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of the order, which sets up a detailed timetable for the actions to be taken during the summer to make possible implementation in September of the court's Phase II desegregation plan, be suspended pending the disposition both of this appeal and any subsequent petition for Certiorari. This would leave school arrangements for the fall of 1975 as they were in the fall of 1974, except possibly for continued development of magnet schools. The stay request is properly before us, since it has already been unsuccessfully made to the district court. Hearing has been had and memoranda submitted.

We consider first defendants' argument based upon section 253 of the Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1752. The statute directs that the effectiveness of "any order . . . which requires the . . . transportation of any student . . . for the purposes of achieving a balance among students with respect to race" be "postponed until all appeals . . . have been exhausted . . . ." While this might seem facially to apply to the order we are dealing with, it is clear in the light of statutory history and all decisions which have addressed the issue that this law does not affect court efforts to eradicate de jure segregation. Section 253 is simply the restatement of section 803 of the Education Amendments of 1972, 20 U.S.C. § 1653, which had expired on January 1, 1974. See 1974 U. S. Code Congressional & Administrative News, 93 Cong., 2d Session, at p. 4221 (conference report). Mr. Justice Powell, sitting as Circuit Justice, interpreted section 803 in Drummond v. Acree, 409 U.S. 1228, 93 S.Ct. 18, 34 L.Ed.2d 33 (1972). He drew on Chief Justice Burger's comments in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 17-18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), with regard to a still-earlier statute, and concluded that the section was designed, at most, "to postpone the effectiveness of transportation orders in 'de facto' cases and in cases in which the district court judges have misused their remedial powers."

Justice Powell's interpretation has been followed in every case which has come to our attention. NAACP v. Lansing Board of Education, 485 F.2d 569 (6th Cir. 1973); Vaughns v. Board of Education, 355 F.Supp. 1044, 1051 (D.Md.1972) (citing additional unpublished orders of Justices Douglas and Rehnquist, in chambers); Cf. United States v. Board of Education, 476 F.2d 621 (10th Cir. 1973); Hart v. Community School Board of Education, 512 F.2d 37, 52 (2d Cir. 1975). Our earlier decision forecloses argument that this is not a case involving de jure segregation. And, while defendants suggest that the district court's plan goes beyond the elimination of illegal segregation and seeks the achievement of racial balance, See Drummond v. Acree, 409 U.S. at 1230-31, 93 S.Ct. 18, we have yet to be persuaded that this characterization of the plan is an accurate one, as our discussion below indicates. We therefore conclude that section 253 does not require a stay of the district court order.

Defendants' remaining arguments for the issuance of a stay are directed to this court's inherent power to stay action under a decision pending its appeal. Scripps-Howard Radio v. FCC, 316 U.S. 4, 9-10, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). An applicant for a stay pending appeal must demonstrate among other things that there exists a probability that he will succeed in his appeal on the merits. Virginia Petroleum Job Ass'n v. FPC,104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958), quoted with approval in Permian Basin Area Rate Cases, 390 U.S. 747, 773, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968); Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115 (1st Cir. 1968), Cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). 3 Here, where there has already

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been a determination that school officials have deliberately fostered racial segregation in the schools, defendants' task in justifying a stay of the remedy devised by the district court after much consideration is difficult indeed. Keyes v. Denver School District, 396 U.S. 1215, 1216, 90 S.Ct. 12, 24 L.Ed.2d 37 (1969) (Brennan, J., in chambers). The decisions of the United States Supreme Court over the past seven years require that, once a constitutional violation is established, the district court must adopt a plan that provides immediate and effective relief. Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, supra, 402 U.S. at 15, 91 S.Ct. at 1276. This court's review of orders issued in the exercise of the district court's equitable powers is limited to a determination whether there has been an abuse of discretion. Keyes, supra; Deckert v. Independence Corp., 311 U.S. 282, 290, 61 S.Ct. 229, 85 L.Ed. 189 (1940).

The Supreme Court and the individual Justices sitting as Circuit Justices have been insistent in their refusal to tolerate delay in the implementation of required desegregation. In 1969 the Court vacated in mid-term a stay entered by a court of appeals, vigorously reaffirming Green, Alexander v. Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). A few months later, still in the middle of the school year, the Court vacated another stay entered by a court of appeals. Carter v. West Feliciana Parish Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969). See also Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608,24 L.Ed.2d 477 (1969). In 1970, the Court refused to stay a district court order in Swann v. Charlotte-Mecklenburg Board of Education, 399 U.S. 926, 90 S.Ct. 2247, 26 L.Ed.2d 791 (1971). In 1971, it reversed stays granted by courts of appeals in Swann, supra, and in Davis v. Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28...

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