554 F.Supp. 169 (D.Mass. 1982), Civ. A. 72-911, Morgan v. McDonough

Docket NºCiv. A. 72-911
Citation554 F.Supp. 169
Party NameMorgan v. McDonough
Case DateDecember 23, 1982
CourtUnited States District Courts, 1st Circuit, District of Massachusetts

Page 169

554 F.Supp. 169 (D.Mass. 1982)

Tallulah MORGAN et al., Plaintiffs,

v.

John J. McDONOUGH et al., Defendants.

Civ. A. No. 72-911-G.

United States District Court, D. Massachusetts.

Dec. 23, 1982

Page 170

Larry Johnson, Center for Law and Educ., Gutman Library, Cambridge, Mass., Laurence S. Fordham, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

Caroline Playter, Boston, Mass., Kenneth Kimberling, Puerto Rican Legal Defense, New York City, for El Comite.

Robert Blumenthal, State Board of Educ., Quincy, Mass., Robert H. Bohn, Jr., Sp. Asst. Atty. Gen., Bohn & Kaplan, Boston, Mass., for State Bd. of Educ.

Steven P. Perlmutter, Asst. Corp. Counsel, Boston, Mass., for Mayor, City of Boston.

James T. Grady, Grady & McDonald, Boston, Mass., for BTU-Boston Teachers Union.

Richard W. Coleman, Segal, Roitman & Coleman, Boston, Mass., for BASAS-Boston Ass'n of School Administrators and Supervisors.

Thayer Fremont-Smith, Choate, Hall & Stewart, Boston, Mass., for Boston Home and School Ass'n.

Martin A. Walsh, Community Relations Service, Boston, Mass., for Community Relations.

Jim Stanton, Acting Staff Director, Citywide Parents' Council/Transition Committee, Boston, Mass., for Transition Committee.

Marshall Simonds, Henry C. Dinger, Goodwin, Procter & Hoar, Boston, Mass., for Boston School Committee and Boston School Dept.

Michael Betcher, Boston School Committee, Maura McGroarty, Boston School Committee, Dept. of Implementation, Nancy Gertner, Silvergate & Gertner, Boston, Mass., Thomas I. Atkins, NAACP Gen. Counsel, N.A.A.C.P. Special Contribution Fund, Brooklyn, N.Y., Wm. Shaw McDermott, McDermott & Rizzo, Boston, Mass., for Concerned Black Educators of Boston.

MEMORANDUM AND ORDERS OF DISENGAGEMENT

GARRITY, District Judge.

Introduction

The vestiges of pervasive and long-standing purposeful discrimination in public education are neither simply nor quickly eradicated. This court found in 1974 that the constitutional rights of minority students in the Boston public schools had been violated. In subsequent years, the court formulated and has actively participated in implementing an appropriate remedy in this case to cure the lingering effects of unconstitutional racial discrimination.

The ultimate goal of any remedy for a violation of minority students' educational rights under the Fourteenth Amendment must be to produce a school system which operates in compliance with constitutional standards without the ever present prospect of judicial intervention. These orders mark an appropriate new phase in the lengthy and complicated process toward effecting a complete remedy in this case. The court

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now embarks on a transitional course of disengagement as it commences a process of returning to the parties the responsibility for complying with the requirements of the Constitution.

In the orders that follow, the court distinguishes between two distinct elements of the ongoing remedial process in Boston's public school system. At the foundation of the remedy are the substantive orders entered throughout the life of the case. Such orders include standards for student assignments and transfers, the assignment of teachers and staff, student transportation and discipline, and parent participation, among many others. Having been affirmed by the Court of Appeals, 1 these orders constitute "the law of the case" and provide the standards which, if fully complied with, can yield an adequate remedy for the past constitutional violation. The goal of these orders is to create a unitary system from the dual system which had existed. All such substantive orders must remain in place.

That aspect of the remedial process which is affected by these orders is its mechanism of administration. This court has directly overseen compliance with the substantive requirements of the remedial process for the past eight years. The parties and the court have gained significant experience. If there is not, as defense counsel have suggested, a "common law" defining what the orders particularly require, there is, at least, a workable common understanding of what the orders mean. Judicial interpretation of the orders, therefore, is now far less necessary than during the earlier phases of the remedial process. Thus, the remedial process, in our opinion, will now be more effectively pursued under an administrative structure which employs the experience and the common understanding gained over the years, and which provides the parties with an opportunity to confront and resolve issues related to curing the constitutional violation without immediate and inevitable judicial participation.

Pursuing the goal of augmented party autonomy in voluntarily fulfilling the requirements of remedial orders, the court has addressed four essential issues: monitoring defendants' compliance with outstanding orders, resolving disputes arising under substantive orders, judicial authority should voluntary efforts fail, and procedures governing possible modification of outstanding orders.

These orders provide new responsibilities for the Massachusetts Board of Education for monitoring defendants' compliance and facilitating dispute resolution under outstanding substantive orders. By lodging these functions in the State Board, the court seeks to create a transitional supervisory structure which can enable the court to determine whether the school system will operate according to the substantive elements of a constitutionally required remedy without continuous judicial oversight. A clear indication that the system will be so administered is a prerequisite to further judicial withdrawal. 2

The court regards the adversarial judicial process as inhibitive of an ideally functioning school system in which compliance with constitutional standards is both voluntary and a matter of course. The process of dispute resolution prescribed by these orders is intended to create a framework for facilitating the consensual resolution of disputes related to the desegregation remedy. This framework is not a substitute for judicial action, but a screen prior to judicial

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action, to ensure that all possible efforts have been expended toward a satisfactory resolution.

The procedures for dispute resolution issued today are not significantly different from those proposed by the State Board's draft orders in several important respects. Both versions place initial responsibility for responding to a claim of noncompliance, and potentially resolving a dispute, with the school defendants. Both versions authorize the State Board to intervene if the parties' initial efforts toward resolution fail. The court has, however, modified the State Board's draft for three reasons. First, a less formal, no adversarial procedure whose goal is consensus will not compromise the due process rights of the parties. Second, the court adopts the modified version with the hope that a process whose goal is consensual resolution will, in fact, promote consensual resolution. This conceptualization of dispute resolution is consistent with the court's abiding aim of entering a consent decree in this case. Although the parties have not yet found common ground for resolving all issues at once, the goal remains, and the structure of dispute resolution established by these orders provides a process for achieving consensus on an issue by issue basis. Third, because formalized procedure is kept to a minimum, and because the parties retain autonomy to evaluate their interests in the context of constitutional requirements, the changes made by the court in the State Board's final version, in our opinion, more nearly replicate a system in which there is no external control. Such a replication is necessary to determine whether the system will function according to constitutional requirements without judicial intervention.

The orders also contain an ultimate judicial stopgap. Should the process of consensual dispute resolution fail on a particular issue, a party may seek judicial resolution of the dispute. The court retains a similar role with respect to other provisions of these orders. This aspect of ultimate judicial authority underscores the transitional nature of the administrative procedures herein prescribed.

The procedures governing modification of outstanding orders reflect the two fundamental principles underlying the orders issued today, viz., that all prior substantive orders are to remain in place and that the basis for judicial disengagement is consensual compliance with constitutional requirements. By requiring substantial, if not unanimous, agreement among the parties with any proposed modification, the court assumes that existing orders, so long the "law of the case," and indeed, continuously modified and refined throughout the years, provide an optimal remedy for the constitutional violation. At the same time, however, the court recognizes that a proposed modification, if supported by a significant coalescence of the parties, could well promote the goal of consensual compliance, and therefore merits judicial consideration.

The court could not have embarked upon this transitional course without the extraordinary efforts, cooperation, and good will of numerous participants in the process of desegregation. The court is particularly grateful to the Massachusetts Board of Education, which will undertake much of the central role which the court anticipates need no longer be primarily judicial, and John H. Lawson, Commissioner of Education for the Commonwealth of Massachusetts, for his leadership and determination to ensure the success of this new phase of the desegregation remedy.

The court also acknowledges the cooperation and dedication of President Jean...

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