565 F.2d 1 (1st Cir. 1977), 76-1568, Black Voters v. McDonough

Docket Nº:76-1568.
Citation:565 F.2d 1
Party Name:BLACK VOTERS et al., Plaintiffs, Appellants, v. John J. McDONOUGH et al., Defendants, Appellees.
Case Date:October 17, 1977
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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565 F.2d 1 (1st Cir. 1977)

BLACK VOTERS et al., Plaintiffs, Appellants,

v.

John J. McDONOUGH et al., Defendants, Appellees.

No. 76-1568.

United States Court of Appeals, First Circuit

October 17, 1977

Argued April 5, 1977.

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Roger L. Rice, Cambridge, Mass., with whom Margaret A. Burnham, Max D. Stern, Burnham, Stern & Shapiro, Boston, Mass., Stefan M. Rosenzweig, Jack Greenberg, and James M. Nabrit, III, New York City, were on brief, for plaintiffs, appellants.

Francis H. Fox, Joseph L. Kociubes, and Bingham, Dana & Gould, Boston, Mass., on brief for Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association, Massachusetts Council of Churches, Massachusetts Coalition for Human Rights, Charles River Broadcasting Co., Unitarian Universalist Greater Boston Action League, and American Jewish Congress, amici curiae.

Derrick A. Bell, Jr., New York City, and Geraldine S. Hines, Roxbury, Mass., on brief for Aswalos House, Freedom House, Lena Park Community Development Corp., and United South End Settlements, amici curiae.

Norman G. Ross, Cochituate, Mass., for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MILLER, Judge. [*]

PER CURIAM.

This is an appeal from the judgment and order denying relief in a class action seeking a declaration that the at-large method of electing members of the Boston School Committee dilutes the ballot strength of Boston's black voters in violation of the Constitution and the Voting Rights Act (42 U.S.C. §§ 1971, 1973 et seq.). We affirm but direct that the order below be without prejudice. 1

The at-large system for electing the Boston School Committee, incorporated in Section 18 of the Boston City Charter, was adopted in 1875. Modified in 1906, this system provides that five school committeemen be elected by the city as a whole, each to hold office for the two municipal years following the municipal year in which he or she is elected. The district court found, with sufficient evidentiary support, that political parties play no part in either the candidacies or elections of School Committee members. Candidates become certified to run by obtaining the signatures of 2,000 registered voters on nominating petitions. If more than ten candidates qualify, a preliminary election is held six weeks prior to the general election, and the field is narrowed to the ten candidates receiving the most votes. In the general election voters may vote for one or more candidates, up to five, and the five receiving the most votes are elected. A candidate need not receive a majority of the votes cast to be elected. There is no ballot "place" rule. School Committee members need not reside in or represent any particular area of the city. 2

At the time the at-large system was adopted, Boston's population was some 300,000, of which approximately 1.5 per cent was black. By 1970 the population had grown to 640,000, of which 105,000, or approximately 16.4 per cent, were black. When this action was instituted, blacks comprised nearly 20 per cent of the citizens of Boston, and were concentrated in three contiguous neighborhoods of Roxbury, Dorchester, and the South End. Blacks formed a majority of the population in four wards of those neighborhoods, and in certain adjoining precincts.

In "an intensely local appraisal of the design and impact of the multi-member district

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in light of past and present reality . . .", White v. Regester, 412 U.S. 755, 769-70, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1972), the district court described the historic intertwining of racial issues and the politics of the Boston School Committee. A pattern of involvement by Boston blacks in the School Committee selection process has emerged. In all but two elections since 1961, black candidates have been nominated for the School Committee, have campaigned aggressively in the primary election, and have qualified to run in the final election. Although black candidates have enjoyed easy success in the predominantly black wards, no black has been elected to the School Committee. 3 A handful of white candidates espousing views in harmony with those of the black community has served on the School Committee during the past fifteen years, but none has been elected to office a second time.

Despite concerted efforts at increasing black voter participation, registration of voters in predominantly black wards and exercise of the franchise by qualified black voters in the primary and final School Committee elections have remained substantially below the city-wide averages. Except in 1965, when the level of participation by black voters nearly equalled that of whites, the average turnout for School Committee elections in two of the predominantly black wards has ranged from a low of 14-15 per cent in 1961 (compared to 23 per cent city-wide) to a high of approximately 37 per cent in 1971 (when the overall voting rate was 43 per cent).

Increasingly, the black and white communities have polarized over issues relating to segregation in Boston public schools. 4 The district court concluded that the most significant and relevant event during the two years preceding the 1975 School Committee election was the finding in Morgan v. Hennigan, 379 F.Supp. 410, 484 (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), that Boston public schools had been unconstitutionally segregated by the purposeful actions of the School Committee and the superintendent of schools and the ensuing court order to formulate and implement "plans which shall eliminate every form of racial segregation in the public schools of Boston, including all consequences and vestiges of segregation." Quoting at length from Morgan v. Hennigan, the district court described the "inflamed atmosphere" in the city over desegregation and busing under a plan of the State Board of Education which the Supreme Judicial Court of Massachusetts had directed the School Committee to implement, beginning in September of 1974. 5

In June of 1974, a special election was held to consider four alternative plans for changing the composition and manner of election of the School Committee. The plan that received the most votes, one that would have abolished the School Committee and replaced it with a city-wide committee appointed by the mayor and decentralized neighborhood councils, was listed as "Question 7" on the ballot in a city-wide referendum held in the fall. It was defeated. The district court found that, although antibusing forces actively opposed Question 7, many who worked against it had supported

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one of the three other plans considered in the special election and viewed the plan embodied in Question 7 as "a power grab by the Mayor". Voting on Question 7, and indeed views on busing, crossed racial lines.

Any analysis of the at-large system under attack here must begin with an acknowledgement that multi-member districts are not per se invalid. Fortson v. Dorsey, 379 U.S. 433, 438-39, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). Such schemes will be struck down only when the challenger carries a burden of proving that the system was instituted to further racially discriminatory purposes or that the effect of the method is "to minimize or cancel out the voting strength of racial or political elements of the voting population". Id. at 439, 85 S.Ct. at 501; Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). 6

The conclusion by the district court that the selection process for the Boston School Committee was not instituted with intent to discriminate against black voters is clearly supported by the court's findings of fact. This is not a case such as Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), where the multi-member system was devised, despite historic policy and a state statute forbidding it, in reaction to a dramatic voter registration drive directed at blacks, who, although comprising 58 per cent of the parish's population, had not been permitted to vote until 1962. In 1875, when Boston's at-large system was adopted, blacks made up only 1.5 per cent of the city's population; they had been enfranchised for years. No long-standing policy or statute weighed against the use of a multi-member system, and indeed, since quality education was a matter of city-wide concern, the establishment of a body responsive to the entire city electorate had a rational basis.

It may be, however, that a purposeful denial of constitutional rights can be found in the maintenance of a system which, although racially neutral at its inception, has developed a known discriminatory effect. 7 The appropriate inquiry is, therefore, whether analysis of the record of this case in light of the factors set forth in White v. Regester, supra, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and their progeny reveals that the effect of the at-large system is to deprive Boston's black voters of equal access to the process of selecting School Committee members. 8

A number of the factors highlighted by the case law appear in the record of this case and were found by the district court to

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point to a racially discriminatory impact. 9 Boston blacks are undeniably an "identifiable class for Fourteenth Amendment purposes" and have particular needs and interests in the functions of the School Committee, many of which diverge from those of the population as a whole. Whitcomb v. Chavis, supra, 403 U.S. at 134-35, 91 S.Ct. 1858. Similarly, there is no question that blacks in Boston have historically been the victims of discrimination in many significant aspects of their existence. 10 Particularly striking is the history, much of it of recent vintage, of discrimination in education the...

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