Morgan v. McDonough, 75-1482

• Citation: 540 F.2d 527
• Decision Date: 17 August 1976
• Docket Number: No. 75-1482,75-1482
• Parties: Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. McDONOUGH et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 527

540 F.2d 527

Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. McDONOUGH et al., Defendants-Appellants.

No. 75-1482.

United States Court of Appeals First Circuit.

Argued Jan. 9, 1976.

Decided Aug. 17, 1976.

James J. Sullivan, Jr., Boston, Mass., with whom Francis J. DiManto, Matthew T. Connolly, Philip T. Tierney, and DiMento & Sullivan, Boston, Mass., were on brief for defendants-appellants.

Robert Pressman, Cambridge, Mass., with whom Laurence S. Fordham, J. Harold Flannery, Foley, Hoag & Eliot, Rudolph F. Pierce, Keating, Perretta & Pierce, Boston, Mass., Eric E. Van Loon, Cambridge, Mass., John Leubsdorf, Boston Mass., and Nathaniel Jones, New York City, were on brief, for plaintiffs-appellees.

Sandra L. Lynch, Boston, Mass., with whom Timothy J. W. Wise, Asst. Atty. Gen., Boston, Mass., on brief, for state defendants, appellees.

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

LEVIN H. CAMPBELL, Circuit Judge.

This appeal was filed on December 10, 1975, by the Boston School Committee (the Committee) from orders of the district court designating a temporary receiver for South Boston High School and ordering the transfer, without reduction in pay, of certain of its staff. The question before us is whether under the extraordinarily difficult and troubled circumstances confronting the School in the fall and early winter of 1975, the district court exceeded its powers in entering such orders. The instant appeal does not deal with how long such a receivership may properly last.

First integrated by court order in 1974 ("Phase I"), the South Boston High School was serving a racially mixed enrollment in 1975-76 under Phase II, a citywide desegregation plan formulated by the district court and upheld on appeal to this court. Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert. denied, --- U.S. ----, 96 S.Ct. 2648, 49 L.Ed.2d --- (1976). In November, 1975, the plaintiffs, representing a class of all black Boston public school students and parents, moved to close the School, alleging that black students there were being denied a peaceful, integrated and nondiscriminatory education. Following a lengthy hearing and several visits to the School, the district court found plaintiffs' basic allegations to be correct, but declined to close the School, ordering instead that it be placed in the temporary receivership of the court, effective December 10, 1975. The court first named as receiver a senior official of the Boston School Department, who was, in fact, the assistant superintendent for the district within which the School was located, but on January 9, 1976, after this appeal was filed, the court appointed Boston's Superintendent of Schools, Marion J. Fahey, as temporary receiver in place of the previous receiver. The stated purpose of the receivership was to effectuate as soon as possible "such changes in the administration and operation of South Boston High School as are necessary to bring the School into compliance with the student desegregation plan dated May 10, 1975 (Phase II), and all other remedial orders entered by the court in these proceedings, e. g., desegregation of faculty and staff." The court directed the receiver to (1) arrange for the transfer of the School's headmaster, full-time academic administrators, and football coach, without reduction in compensation, benefits, or seniority; (2) evaluate the qualifications of all faculty and educational personnel and arrange the transfer and replacement of whomever he sees fit for the purposes of desegregation, without reduction in compensation, benefits, or seniority; (3) file a plan with the court for the renovation of the School; (4) try to enroll non-attending students and establish catch-up classes; and (5) make recommendations to the court relative to certain provisions of the plan. It is the receivership order and the foregoing directions, including especially those for transfer of staff, which are the subject of this appeal. ¹

I

As the district court's primary orders requiring South Boston High School and other Boston schools to be desegregated have been reviewed and sustained, see Morgan v. Kerrigan, supra, the time is no longer ripe to consider arguments against Phase II itself. The questions now before us are simply whether the lower court properly determined that plaintiff's rights under the desegregation plan were being violated at

South Boston High School, and if so, whether the temporary remedies ordered were reasonable and lawful. We answer these questions in the affirmative. Given the lawfulness of the court's desegregation decrees, there is little question that it had the power to take reasonable steps to ensure compliance therewith and to protect the students attending the city's desegregated schools. The evidence here does not show that the court went beyond what might reasonably be considered necessary to cope with a grave threat to the desegregation plan and to the safety and rights of the black students at South Boston High School.

II

Conditions at South Boston High School which resulted in the challenged receivership and transfer orders are described in the district court's oral and written findings, based on a week-long evidentiary hearing and on affidavits and personal visits to the School. These may be summarized as follows.

Prior to court-ordered desegregation, South Boston High School, consisting of the main building and the L Street Annex, was a white school both as to faculty and students. For example, in 1972-73, of approximately 2200 students, one was black, and of 132 faculty, two were black. From the district court's earlier findings, it seems that the School was involved in many of the segregatory practices which led to the present desegregation plan. Morgan v. Hennigan, 379 F.Supp. 410, 426, 427, 428, 438, 441-49, 468-69, 475 (D.Mass.), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975).

A significant black enrollment was introduced for the first time in 1974-75 under Phase I. A litany of the problems that ensued that year is to be found in the district court's findings. Police in large numbers were on hand from the second day of school in September, 1974; there was tension, disruption, violence, and poor attendance. Black students were often the targets of racial slurs and, on occasion, physical abuse. By the fall of 1975, when Phase II went into effect, South Boston High School was known to be an institution where desegregation was experiencing severe difficulty.

These problems did not abate in the 1975-76 academic year. According to some witnesses they increased. The district court found, "Considering the implementation of the Phase One and Phase Two desegregation plans as a whole, the problems experienced at South Boston High School have been unique in their duration and intensity." A major aspect of the troubles was a continued resistance or imperviousness to integration. South Boston High was found to have remained identifiably white notwithstanding its racially mixed student body. All administrative personnel assigned to the main building, approximately 45 persons, were white, and the court concluded that in the opinion of its administration, the School belonged only to the white students residing in the easterly part of the district which it served. Out of 100 teachers, 93 were white. The 1975-76 student handbook, distributed to every student and mailed to parents of all registered students, portrayed the School as if white, ignoring its newly integrated status. The handbook singled out for praise the South Boston High School Home and School Association, ² an organization whose principal if not sole activity for the past two years was to oppose court-ordered desegregation. There was but a single passing reference to the court-established Multi-Ethnic Councils, designed to facilitate the desegregation process.

The court found that the black students who had been assigned to the School were being intimidated and mistreated. There was evidence that black students had been physically attacked without provocation by larger groups of white students. There was evidence that black students had been disciplined The court found, moreover, that racial segregation was persisting inside South Boston High School. Black students failed in attempts to join the football team, due in part to the actions of the coach. Black and white students were kept apart when arriving at or leaving School. The races remained separated in the classrooms and the cafeteria. No administrative policy or directive was issued to desegregate classroom seating; a plan for desegregated assemblies remained unenforced; and no effort was made to initiate desegregation in the cafeteria by, for example, having white and black aides eat together. In fact, the headmaster on one occasion reprimanded a black student who attempted to sit at a table with white students for a "provocative" act.

for defending themselves while white attackers went unpunished. Black students were found to have been subjected to continuing verbal abuse, and despite a court-ordered ban on racial epithets school officials did little to intervene. In addition to "familiar racial slurs", white students this year have employed the chant " '2, 4, 6, 8 assassinate the nigger apes' ", and, while changing classes, groups of white students often sing " 'bye, bye blackbird' and 'jump down, turn around, pick a bale of cotton' ". The white student caucus, in a list of demands, requested that music be played over the School's public address system during the changing of classes, since " 'music soothes the savage beasts' ". On numerous occasions, school staff and police stationed inside the building have heard these remarks and chants and failed to take any corrective or disciplinary action.

The district court found that actions by the faculty at South Boston High...