530 F.2d 401 (1st Cir. 1976), 75--1184, Morgan v. Kerrigan

Docket Nº:75--1184, 75--1194, 75--1197 and 75--1212.
Citation:530 F.2d 401
Party Name:Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellants, Boston Home and School Association, Defendant-Intervenor-Appellant, Kevin H. White, etc., et al., Defendants-Appellants.
Case Date:January 14, 1976
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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530 F.2d 401 (1st Cir. 1976)

Tallulah MORGAN et al., Plaintiffs-Appellees,


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

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

Kevin H. White, etc., et al., Defendants-Appellants.

Nos. 75--1184, 75--1194, 75--1197 and 75--1212.

United States Court of Appeals, First Circuit

January 14, 1976

Argued Sept. 12, 1975.

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Matthew T. Connolly, Boston, Mass., with whom Francis J. DiMento, James J. Sullivan, Jr., Phillip T. Tierney and Dimento & Sullivan, Boston, Mass., were on brief, for John J. Kerrigan and others.

Kevin F. Moloney, Asst. Corp. Counsel, Boston, Mass., for Kevin White and others.

Thayer Fremont-Smith, Boston, Mass., with whom Owen S. Walker, Choate, Hall & Stewart, Boston, Mass., and Philip B. Kurland, Chicago, Ill., were on brief, for Boston Home and School Assn.

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

Timothy J. W. Wise, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Margot Botsford, Asst. Atty. Gen., and Sandra L. Lynch, Gen. Counsel, State Board of Education, Boston, Mass., were on brief, for State defendants.

Richard Hiller, New York City, with whom Jack John Olivero, Herbert Teitelbaum, New York City, Michael Haroz, Jean Mirer and Pamela Taylor, Cambridge, Mass., were on brief, for El Comite De Padres Pro Defensa De Education Bilingue.

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

COFFIN, Chief Judge.

These appeals present varied challenges to orders of the district court implementing a plan of desegregation for the public schools of Boston. The consolidated cases concern the remedy phase of litigation initiated by plaintiffs-appellees, representing a class of all black public school students and their parents, against, principally, the Boston School Committee and the Superintendent of Boston Public Schools. The liability phase came to an end in 1974 with a district court finding of substantial segregation in the entire school system intentionally brought about and maintained by official action over the years. Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.1974). 1 We affirmed, Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), and the Supreme Court denied certiorari, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975).

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While the liability issues were being considered on appeal, the district court, after its decision on June 21, 1974, began its exploration of appropriate remedies. The period from June, 1974, to May, 1975, was occupied with the addition of parties to the litigation, 2 hearings as to the nature, scope and objectives of a plan, submission and criticism of various plans, consideration of all proposals and preparation of a plan by a panel of masters, and, finally, the issuance of a revised plan by the district court on May 10, 1975, followed by a Memorandum Decision and Remedial Order. Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass.1975). On June 17, 1975, we denied appellants' motion for a stay pending appeal, Morgan v. Kerrigan, 1 Cir., 523 F.2d 917 (1975), but devised a consolidated and expedited briefing schedule, in which all parties have faithfully cooperated. During the summer of 1975 the court, counsel, school officials, teachers, parent organizations, and federal, state, and city agencies and officials worked intensively to prepare for the September school opening in compliance with the district court's order, commonly referred to as Phase II. 3 The schools are now functioning in accordance with the court's plan and orders.

The issues to be considered here are both procedural and substantive and require some further background of events. After hearings during the summer and early fall of 1974, the district court, on October 31, 1974, entered an order establishing guidelines 4 and date (December 16) for a plan of desegregation to be filed by the School Committee. Such a plan was prepared by the staff but, on the deadline date, the School Committee voted not to submit it. 5 It was, however, filed by the Committee's counsel. This plan called for six districts, with varying learning approaches available within each district, and 'magnet' or special purpose high schools, but left with parents the choice of schools for their children.

On January 20, 1975, plaintiffs submitted a plan, accepting the six districts identified in the staff plan of December 16, 1974, but proposing a mandatory allocation of students among the schools to achieve minority enrollments that were neither too small (e.g., a minimum of 29.4 percent in elementary schools) nor too large (e.g., a maximum of 60.6 percent in elementary schools).

Also on January 20, 1975, the Boston Home and School Association (Association) filed a plan which was based on the theory that segregation in certain schools was the result of 'existing residential separateness' and a policy of neighborhood school assignments, rather than of any official actions of the School Committee. To support its approach, the Association offered evidence of demographic patterns, which the district court

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refused to accept on the grounds that the evidence was irrelevant at the remedy stage of the case and that the issue raised by the offer had been litigated and finally decided in the liability phase of these proceedings. The court's refusal to consider the Association's plan is not in issue, but the Association's contention that the court should reopen the proceedings to consider, for purposes of tailoring remedies, the impact of demographic conditions on particular schools is one of the principal issues before us.

The School Committee's plan, finally submitted on January 27, 1975, see note 5 supra, also kept the six districts or zones, and allowed parents several options, ranging from electing to have their child remain in a racially mixed school, to choosing a citywide or zoned magnet school, to any school within the zone. Should the school chosen by the parents be dominantly black or white, the desegregative remedy would be a once-a-week (for elementary schools) or a once-every-two-week (for middle level schools) visit by paired black and white schools to a 'third site' resource center for training and experience in race relations.

With these three plans on the table, the court appointed two experts to assist in evaluating plans and a panel of four masters to consider the plans--commencing with the School Committee's January 27 plan--hold hearings, and 'make recommendations to the Court'. 6 The masters held hearings for over two weeks, and, after hearing argument addressed to a draft report, issued their final report on March 31, 1975. The masters found the School Committee plan inadequate, in large part because of its reliance on parental free choice; rejected plaintiffs' plan as being educationally deficient, unwieldly and arbitrary; rejected the December 16 plan as being vague and unduly burdensome to minorities; and proposed a ten district system, one being a citywide district with magnet schools and specially appealing programs, with each of the other nine districts and some of the magnet schools being paired with specific colleges, labor and business organizations for assistance in program enrichment. Mandatory busing was estimated by the masters to affect 10,700 to 14,900 students.

The court then called for hearings on objections to the masters' report, which commenced on April 10. In the meantime, the court had called for updated enrollment data from the School Committee. The court issued its Draft Revision of the Masters' Report on April 17, heard comments on April 18, and issued its desegregation plan on May 10. Its plan reduced the number of districts from the ten recommended by the masters to nine, redrew district lines, and reflected--on the basis of the new data--less racial disparity generally in school assignments than did the masters' plan. The plan not only precisely set forth the new districts but called for changes in the school system's administrative hierarchy, and established a system of community participation in district and citywide councils. The mandatory busing estimated by the court would affect 21,000 students. During this time of accelerated activity, the court also appointed an ad hoc committee of three attorneys to assist in obtaining support from colleges and universities, and ordered that school personnel meet and confer with personnel from the designated college or university. Late in June the court authorized the court-appointed experts to resolve some remaining issues relating to facilities utilization, program allocation, and enrollment limits. Each of these actions by the court

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has been challenged, as well as the court's plan itself.

This skeletal recitation of chronology masks a year of increasingly intensive activity in collecting and updating data, preparing, evaluating, and amending plans embracing a wide variety of approaches, and, finally, devising procedures and taking action to put into effect a plan calling for a dramatically different educational system affecting some 80,000 students. The pressures of time, the problems of developing reliable data, the clash among radically differing approaches, the resistance of the School Committee, the sheer numbers of parents, students, teachers, and administrators to be...

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