Morgan v. Kerrigan, 75--1097

• Citation: 530 F.2d 431
• Decision Date: 26 January 1976
• Docket Number: No. 75--1097,75--1097
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Parties: 14 Fair Empl.Prac.Cas. 312, 11 Empl. Prac. Dec. P 10,636 Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellees, and John P. Doherty et al., Intervenors-Appellants.

Page 431

530 F.2d 431

14 Fair Empl.Prac.Cas. 312,

11 Empl. Prac. Dec. P 10,636

Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellees and John P. Doherty et al., Intervenors-Appellants.

No. 75--1097.

United States Court of Appeals First Circuit.

Argued Sept. 12, 1975.

Decided Jan. 26, 1976.

John F. McMahon, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle, & Wanger, Boston, Mass., was on brief for appellants.

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

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

COFFIN, Chief Judge.

This is an appeal arising out of the Boston school desegregation litigation, in which intervenors, representing the Boston Teachers Union, challenge a district court order fixing goals governing teacher recruitment and hiring in the Boston public schools. Morgan v. Kerrigan, 388 F.Supp. 581 (D.Mass.1975). Plaintiffs-appellees are the class of black parents and school children which initiated the suit, ¹ resulting in a finding of intentional segregatory policies affecting, among other parts of the school system, the recruitment and hiring of black teachers. Morgan v. Hennigan, 379 F.Supp. 410, 456--66 (D.Mass.1974), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580, 595--98 (1st Cir. 1974), cert. denied, 421 U.S. 963 (1975). A previous teacher hiring order containing a one-for-one hiring provision similar to that in the instant case, but effective only for the 1974--75 school year, was affirmed in Morgan v. Kerrigan, 509 F.2d 599 (1st Cir. 1975).

The district court ordered Boston school officials to hire one black teacher for each white teacher hired until 20 percent of the faculty was black. The union objects to this 20 percent figure, ² which was selected by the district court as representing approximately the percentage of blacks in the total Boston population. The union argues that the goal should instead be cast in terms of the labor pool of present college students and recent graduates in the Boston area.

This argument fundamentally misapprehends the nature of this case. The plaintiffs are not the black teachers or would-be teachers who have been discriminated against because of their race. The district court's examination of the School Committee's recruitment, hiring, transfer and promotion policies was undertaken to determine whether those policies violated the rights of black Boston public school children. It is the rights of those children that the order in issue is intended to protect. See Morgan v. Kerrigan, 509 F.2d 599, 600 (1st Cir. 1975). In its effort to eliminate segregation and its effects 'root and branch', Green v. County School Board, 391 U.S. 430, 438 (1968), the court's equitable power to fashion a remedy is both broad and flexible. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971).

With this objective in mind, some courts have set as a teacher hiring goal the percentage of minority students in a given school system, which for Boston in 1973--74 was 35 percent. See, e.g., Keyes v. School District No. 1, 521 F.2d 465, 484 (10th Cir. 1975); United States v. Texas Education Agency, 467 F.2d 848, 868, 873 (5th Cir. 1972); Arvizu v. Waco Independent School District, 373 F.Supp. 1264, 1270--71 (W.D.Tex.1973), rev'd in other respects, 495 F.2d 499 (5th Cir. 1974). The court's refusal to do so here was apparently motivated at least in part by a desire to minimize court involvement over a period of time.

The 20 percent goal fixed by the district court finds support in hiring discrimination cases not involving students' rights, where courts have often resorted to gross population ratios for remedial purposes. See, e.g., Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1026--27 (1st Cir. 1974), cert. denied, 421 U.S. 910 (1975); NAACP v. Allen, 493 F.2d 614, 617 & n. 3, 621 (5th Cir. 1974); Carter v. Gallagher, 452 F.2d 315, 328 & n. 2, 330--31 (8th Cir. en banc), cert. denied, 406 U.S. 950 (1972). Population ratios of course are not necessarily appropriate in hiring cases; a proper goal may be smaller or larger than the local population percentage. See United States v. Ironworkers Local 86, 443 F.2d 544, 553 (9th Cir. 1971), aff'g 315 F.Supp. 1202, 1234, 1247 (W.D.Wash.1970). As the union points out, positions for employment may be so specialized that general population statistics are of little value in setting goals, citing Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974), Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974), and our own opinion in castro v. Beecher, 459 F.2d 725, 737 (1972). This was apparently the situation in Rios v. Enterprise Ass'n, Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974). If these cases stand for the general proposition, as the union argues, that area population is an inadequate measure of the labor pool in certain hiring discrimination cases, it would still remain for the union to demonstrate that the percentage of blacks in the appropriate pool here is lower than their percentage of the general Boston population. This has not been done.

Before the district court, the School Committee's position was that the appropriate goal should be the percentage of black college graduates of all ages, in Boston or in the northeast section of the country, 5.25 and 4.24 percent respectively. Such a goal would have entirely nullified the court's previous finding of constitutional violations in the recruitment and hiring of faculty, as the percentage of black teachers in the Boston system had already exceeded 7 percent in 1972--73 and the Committee's proposed goals would have permitted backtracking rather than constituting remedial relief. The union objected to the Committee's proposal, however, on the grounds that the pool it was based on was too broad, and proposed instead a pool of all college graduates carrying a Massachusetts certification. The statistic on this pool does not appear to have been presented, but there is no reason to believe that it deviates much from the clearly insufficient 4--5 percent range.

Since no other figures less than 20 percent were presented to the district court, there is no support in the record for the suggestion, only now advanced by the union, that the ratio of blacks in the appropriate pool (now defined as present college students and recent college graduates in the Boston area) is approximately 12 percent. Even assuming that the union's definition is correct, a question we need not decide, the union simply has not presented a convincing case that blacks in fact constitute 12 percent of the pool as so defined. The union reaches its suggested figure by extrapolating from the rise in the percentage of blacks attending college throughout the nation from 1964 to 1972. This figure, however, is also approximately the same as the percentage of blacks in the national population (11 percent). Since there is a higher percentage of blacks in the Boston area, it is likely that there is also a higher percentage of black college students and recent graduates. The union advances no indication that a lower proportion of college students and recent graduates exists in the Boston area black population than nationally. In short, the union has done nothing to rebut the natural inference that...