Morgan v. Nucci, Civ. A. No. 72-911-G.

• Decision Date: 03 September 1985
• Docket Number: Civ. A. No. 72-911-G.
• Court: U.S. District Court — District of Massachusetts
• Parties: Tallulah MORGAN et al., Plaintiffs, v. John A. NUCCI et al., Defendants.

617 F. Supp. 1316

Tallulah MORGAN et al., Plaintiffs, v. John A. NUCCI et al., Defendants.

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

United States District Court, D. Massachusetts.

September 3, 1985.

Robert Pressman, Center for Law & Education, Cambridge, Mass., Laurence S. Fordham, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

Caroline Playter, Kehoe, Doyle, Playter, Novick & Strimaitis, Boston, Mass., Kenneth Kimerling, Puerto Rican Legal Defense & Education Fund, Inc., New York City, for El Comite.

Robert Blumenthal, State Board of Educ., Quincy, Mass., for Joan Entmacher, Asst. Atty. Gen., Com. of Mass., Boston, Mass., for State Bd. of Educ.

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

James T. Grady, Grady, Dumont & Dwyer, 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.

Henry C. Dinger, Goodwin, Procter & Hoar, Boston, Mass., for defendants.

Martin A. Walsh, Community Relations Service, Dept. of Justice, Boston, Mass., for Community Relations.

Lucille Koch, Evalena Higginbottom, Acting co-Executive Directors, Citywide Parents Council, Boston, Mass., for Transition Committee.

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

Michael Betcher, Boston School Committee, Boston, Mass.

Shirley Burke, Director of ELU, Boston School Committee, Dept. of Implementation, Boston, Mass.

Nancy Gertner, Silvergate, Gertner, Baker & Fine, Boston, Mass., Grover G. Hankins, Gen. Counsel, N.A.A.C.P. Special Contribution Fund, Thomas I. Atkins, Brooklyn, N.Y., for Concerned Black Educators of Boston.

MEMORANDUM AND ORDERS ON UFP

GARRITY, District Judge.

Introduction

The dilapidated condition of many Boston schools has been an obstacle to their desegregation and a continuing concern of all parties to these proceedings. The opening section of the court's remedial orders, in 1975 stated:

The children of second and third generation white ethnic families suffered as the schools located within their residential enclaves came to reinforce rather than reduce the educational distance between their neighborhood and access to the larger society. Black and other minority children, meanwhile, suffered even greater educational deprivations as the schools they attended were the most crowded, the oldest, the least well maintained, and the most poorly staffed the school committee could offer.

Morgan v. Kerrigan, (D.Mass.1975) 401 F.Supp. 216, 223, aff'd (1 Cir.1976) 530 F.2d 401, cert. denied (1976) 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386.¹ A report by Superintendent Wood to the school committee in 1979 stated:

History has bequeathed us with a wide disparity of facilities, as well as educational programs, and no amount of rationalization can obscure the fact that we desperately need major investments in rehabilitation and construction to reduce existing differences.

A letter to the mayor by Superintendent Spillane in 1985 stated:

The disgraceful physical condition of our school buildings can no longer be tolerated.

The court's authority to order renovations for such schools is derived from its primary responsibility to eradicate the dual system which resulted in segregation.² As the Court of Appeals for the Eighth Circuit has pointed out, "relating the remedy to the violation pursuant to Milliken II does not require a finding that each aspect of remedy at issue has in the past been `infected with the discriminatory bias of a segregated school system' citation omitted. It is sufficient to determine that the remedial program is directed to cure the general condition offending the Constitution." Liddell v. State of Missouri, (8 Cir.1984) 731 F.2d 1294, 1315 n. 18, cert. denied (1984) ___ U.S. ___, 105 S.Ct. 82, 83 L.Ed.2d 30. "Improving the quality of integrated schools consequently promotes parental acceptance of desegregation, and promotes the remedy's success." Id. at 1314. This is particularly so with respect to plans which rely to a considerable extent upon voluntary parent and student choices of magnet schools, special programs and other options.

I.

A long-range facilities plan is essential to desegregation in the Boston public schools under both the court-ordered student desegregation plan and the new experimental assignment plan being implemented this year in districts 3 and 4. The condition of a school building has a strong impact on its ability to receive assigned students or to hold them, once assigned. Under the Boston plan, a community district school is obligated to receive and serve all students residing in the geocodes assigned to it. The plan's provisions whereby parents may apply for their children's admission to magnet schools and programs do not guarantee such assignments; nor were they meant to support parental attempts to secure fire-safe, structurally sound buildings for their children's schooling. Rather, magnets were to be voluntary preferences for instructional programs. No less than a city-wide district 9 magnet school, a community district school must be one whose building provides a safe, usable and sound environment for all.³

During the past decade, parents of both white and black students have rejected assignment to schools with gravely deficient buildings, thus compounding the difficulty of reducing racial identifiability and of ensuring equal opportunity at every school. Many of the buildings located in black residential neighborhoods have experienced low enrollments and even lower proportions of white students who may live within walking distance of the school. One of the purposes of the special measures hereinafter ordered is to prevent less attractive schools from becoming racially segregated.⁴ The need for such special measures is even more acute at some schools under the new assignment process in districts 3 and 4 because each school in those districts must compete for students with the other community district schools as well as with magnet and non-public schools.

Facility renovations and improvements central to a desegregation remedy must of necessity be of many kinds because any one physical condition in a school building may affect all others. For example, broken gutters and roof flashings may result in the destruction of whole classrooms, corridors or libraries. Generally, the improvements hereinafter ordered are of three types: those which safeguard the health and safety of students and staff, e.g., fire alarm systems and sanitary plumbing; those which make routine, daily occupation of the facility possible, e.g., heating and ventilation systems; and those which enable the building to carry out educational programs assigned to it, e.g., lighting adequate to read by in all buildings and an appropriate electrical supply where a school has a computer education program. In sum, the court's proper concern is with attaining a minimum or floor of safety, utility and program operability below which the facility is clearly substandard.

In entering the orders that follow, as well as those for the preparation and filing of a UFP, the court has endeavored to observe the principles enunciated by the Court of Appeals in upholding previous orders of the court regarding renovations necessary to preserve desegregation at South Boston High School. See Morgan v. McDonough, (1 Cir.1977) 548 F.2d 28, 29-30. No renovations are herein ordered beyond those recommended by the joint planners, including appropriate officials of the Boston School Department. Planning has proceeded and implementation will proceed with the active participation of many officials of the School Department. No party has argued that any of the items ordered are per se unnecessary or excessive. Also, the orders that follow require no appropriations beyond those that the city defendants have agreed to arrange. They come within the financial limitations imposed by the joint planners, ordering only that certain renovations be accomplished sooner than planned in the UFP and others be correspondingly deferred, i.e., that priorities of some projects be shifted for purposes of desegregation.

II.

The court's search for a long-range plan dates back prior to 1977, when the first Unified Facilities Plan ("UFP") was ordered.⁵ A brief history of the court's futile attempts to obtain one is relevant to the course now taken. The current structure of the UFP planning process was first suggested by the joint defendants themselves. By an order dated May 3, 1976, the court had required specific repair programs and new construction projects to begin during the summer of 1976. The court had ordered that the city and state defendants appropriate the necessary funds for the projects and the joint planners were directed to undertake long-range planning for future construction. The defendants appealed these construction and renovation orders, which were then stayed by the court pending the appeal and the possible development of a consensus among the parties through negotiations.

Negotiations took place throughout the summer and fall of 1976 and agreement was reached. On November 15, 1976 counsel for the City of Boston filed a Memorandum of Stipulations, which represented the position of the city and state defendants and the plaintiffs. The school committee, on the recommendation of Superintendent Fahey, approved the stipulations by vote on December 1, 1976. The stipulations were modified by the parties on December 6, 1976 to extend the completion dates of various projects. The stipulations as modified stated, in part, that:

(3) The mayoral and state defendants, in consultation with the superintendent, will devise a long-range construction, renovation, and school closing plan for the Boston Public Schools to be presented to the court for approval as consistent with desegregation

...