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

• Decision Date: 01 November 1985
• Docket Number: Civ. A. No. 72-911-G.
• Citation: 620 F. Supp. 214
• Parties: Tallulah MORGAN et al., Plaintiffs, v. John A. NUCCI et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

620 F. Supp. 214

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.

Memorandum Regarding Final Orders November 1, 1985.

Robert Pressman, Center for Law & Educ., 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 Bd. of Educ., Quincy, Mass., Joan Entmacher, Asst. Atty. Gen., Boston, Mass., for State Bd. of Educ.

Steven P. Perlmutter, Asst. Corp. Counsel, City Law Dept., Boston, Mass., for Mayor, 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 Adm'rs and Supervisor.

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, Michael Betcher, Boston School Committee, Shirley Burke, Director of ELU, Boston School Committee, Dept. of Implementation, Boston, Mass., for Special Counsel Boston School Committee and Boston School Dept.

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.

FINAL ORDERS

GARRITY, District Judge.

After hearing and consideration of the parties' comments and positions on the draft final judgment¹ issued on July 5, 1985, and on the basis of all orders and memoranda of decisions previously entered in these proceedings, it is ORDERED and ADJUDGED that the school defendants, viz., members of the Boston school committee, Superintendent of Schools, their officers, agents, servants employees, attorneys, and all other persons in active concert or participation with them who have actual notice of these orders:

Unified Facilities Plan

(1) shall take all steps reasonably necessary, jointly with the city and state defendants, to whom this paragraph also applies, to implement the Unified Facilities Plan as approved and modified by orders entered contemporaneously herewith.

Permanent Injunction

(2) be permanently enjoined from discriminating on the basis of race in the operation of the public schools of the City of Boston and from creating, promoting or maintaining racial segregation in any school or other facility in the Boston public school system;

Student Assignments

(3) (a) shall compose enrollments at each school so that its racial/ethnic proportions shall be consistent with current guidelines which shall be derived, with respect to citywide magnet schools and programs, from the citywide public school population and, with respect to district schools, from the public school populations of their current districts or consolidations thereof; and procedures for assigning students shall be objective, written and available to the public.

(b) alternatively, may beginning with the 1986-87 school year or thereafter use a single, citywide guideline for assigning students by composing enrollments at every school (except District 8 schools) so that its racial/ethnic proportions exclusive of entering K-1 students are within a range determined by a factor of .25 times the percent of each racial/ethnic group and are based upon the citywide public school population in K-1 through 12 as of about April 1 of the previous school year, minus (i) students enrolled in bilingual classes, (ii) students with special needs who are classified as substantially separate and (iii) students residing in District 8; provided further that, where necessary, the Department of Implementation may assign no other minority students to selected elementary schools, in which event their absence shall be offset by additional white students; and provided further that procedures for assigning students shall be objective, written and available to the public.

Parent Councils

(4) shall promote the court-established parent councils, and any successor organizations, and assist them in functioning as self-governing organizations capable of meeting their court-ordered responsibilities; and shall fund them for at least three years from this date; and shall appoint to any School Improvement Council formed at any school pursuant to Chapter 188 of the Acts of 1985, parent membership elected by the related School Parent Council or successor organization.

Faculty and Staff

(5) shall achieve and maintain a desegregated faculty and administrative staff which are each comprised of not less than 25% blacks and 10% other minorities, by increasing the proportions of black faculty and administrative staff at a rate of not less than one-half percent annually and the proportion of other minority faculty at the rate of not less than one-quarter percent annually, and of other minority administrative staff in accordance with the parties' agreement for a one out of three hiring ratio, approved and ordered by the court on November 26, 1984 and July 5, 1985.

Department of Implementation

(6) shall maintain the Department of Implementation as a distinct unit, adequately staffed and with full access to computer facilities, capable of meeting its court-ordered responsibilities;

Previous Orders

(7) shall carry out all existing orders imposing a duty on the school defendants previously entered in areas in which the court has not terminated its jurisdiction and, if modified as hereinafter provided, such modified orders.

Modification Procedure

(8) The school defendants may propose modifications to any order previously entered in these proceedings provided (a) that such proposed modification is specific and does not violate the permanent orders stated in the seven preceding paragraphs and (b) that notice and opportunity to be heard is given, as follows: they shall issue a public notice identifying the order to be modified and the proposed modification; and shall mail copies to (a) the State Board of Education, (b) the Attorney General for the Commonwealth, (c) the Mayor, (d) the Citywide Parent Council (e) the Boston chapter of the NAACP and (f) the Council of Administrators of Hispanic Agencies in Boston (CAHA), to all of whom the Department of Implementation shall promptly make available all relevant data reasonably requested. The Board of Education shall within three weeks initiate and moderate negotiations concerning the proposed modification or determine that the proposed modification is insubstantial or an emergency matter which the School Committee may adopt without negotiation. After agreement has been reached or the Board has determined that further negotiations would not result in agreement, or more than three months have passed since the public notice was given, whichever is earliest, the School Committee may (unless State Board approval is necessary under state law and has not been obtained) adopt or reject such proposed modification either as initially proposed or amended during negotiations.²

MEMORANDUM REGARDING FINAL ORDERS¹

The school defendants' recent compliance with some aspects of the student desegregation plan issued years ago warrants the entry of final orders in this case. On the other hand, considerable unfinished business in the prolonged process of desegregating Boston's public schools requires the court's retention of standby jurisdiction in six of the twelve categories of its remedial orders. In these respects the orders dated September 3, 1985 are the "logical next step" in the court's disengagement, forecast in its memorandum dated December 23, 1982, as well as the court's response to the State Board's recommendation in its July 15, 1985 report, seconded by Mayor Raymond L. Flynn in his letter dated July 26, 1985, that "the disengagement of the Court will not impede further progress toward the realization of a unified school system in Boston."

The final orders are based not only upon the findings and conclusions stated herein and in the July 5 memorandum and at hearings in open court, but also upon memoranda and orders previously entered in these proceedings, especially those cited post, and the five semi-annual monitoring reports filed by the State Board, the first dated July 15, 1983 and the last, July 15, 1985. These comprehensive volumes reported to the court and parties the compliance vel non achieved by the school defendants with court orders in the twelve subdivisions of the student desegregation plan. Familiarity with the State Board reports is virtually indispensable to an understanding of all orders entered in these proceedings during the past two years.

Final orders are now appropriate because the school defendants have taken several major steps within the past year toward curing the deficiencies in compliance described in the series of State Board reports. In particular, inter alia, (a) they obtained agreement from the parties and court approval by order entered November 26, 1984 of a new plan for appointing and promoting administrators, so as to correct the situation whereby approximately half the administrators in the system held their positions only in an acting capacity; (b) as detailed in a report filed February 4, 1985, they reduced systemwide capacity by 1,719 seats so as to reflect current and projected enrollments, thereby lessening the prospect of resegregation; (c) by motions filed December 20, 1984, they proposed numerous changes in student assignment procedures that were adopted, with various modifications, by court orders entered on ...