831 F.2d 313 (1st Cir. 1987), 85-1447, Morgan v. Nucci

Docket Nº:85-1447, 85-1900, 85-1747 and 85-2006.
Citation:831 F.2d 313
Party Name:Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John A. NUCCI, et al., Defendants, Appellants. Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John A. NUCCI, et al., Defendants, Appellees. (Two Cases) Appeal of BOSTON TEACHERS UNION, LOCAL 66, AFT, AFL-CIO. Appeal of MAYOR OF BOSTON and Public Facilities Commission of the City of Boston, Defe
Case Date:September 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 313

831 F.2d 313 (1st Cir. 1987)

Tallulah MORGAN, et al., Plaintiffs, Appellees,

v.

John A. NUCCI, et al., Defendants, Appellants.

Tallulah MORGAN, et al., Plaintiffs, Appellees,

v.

John A. NUCCI, et al., Defendants, Appellees. (Two Cases)

Appeal of BOSTON TEACHERS UNION, LOCAL 66, AFT, AFL-CIO.

Appeal of MAYOR OF BOSTON and Public Facilities Commission

of the City of Boston, Defendants.

Nos. 85-1447, 85-1900, 85-1747 and 85-2006.

United States Court of Appeals, First Circuit

September 28, 1987

Argued March 5, 1987.

Page 314

Henry C. Dinger with whom Marshall Simonds, P.C., Nancer Ballard and Goodwin, Procter & Hoar, Boston, Mass., were on brief for appellants Joseph Nucci and School Committee of City of Boston in Nos. 85-1447 and 85-1900.

Thomas I. Atkins, Baltimore, Md., with whom Robert Pressman, Center for Law & Education, Washington, D.C., was on brief for plaintiffs-appellees Tallulah Morgan, et al., in Nos. 85-1447 and 85-1900.

Joan Entmacher, Asst. Atty. Gen., Civ. Rights Div., with whom Francis X. Bellotti,

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Atty. Gen., Boston, Mass., and Robert H. Blumenthal, Counsel, Dept. of Educ., Quincy, Mass., were on brief for appellee State Bd. of Educ. in Nos. 85-1447 and 85-1900.

Steven P. Perlmutter with whom Harrison & Maguire, P.C., Boston, Mass., was on brief for appellants Mayor of the City of Boston and Public Facilities Com'n of the City of Boston in No. 85-2006.

Henry C. Dinger with whom Marshall Simonds, P.C., Nancer Ballard and Goodwin, Procter & Hoar, Boston, Mass., were on brief for defendants-appellees School Committee of the City of Boston and Superintendent of the Boston Public Schools in No. 85-2006.

Robert Blumenthal, Quincy, Mass., for appellee State Bd. of Educ. in No. 85-2006.

Carolyn B. Playter, Nat. Lawyers Guild, with whom Kehoe, Doyle, Playter & Novick, Boston, Mass., and Kenneth Kimerling, Puerto Rican Legal Defense Fund, New York City, were on brief for plaintiff-intervenor, appellee El Comite de Padres in No. 85-2006.

Robert Pressman, Center for Law & Educ., Quincy, Mass., for plaintiffs-appellees Tallulah Morgan, et al., in No. 85-2006.

James T. Grady with whom Gabriel O. Dumont, Jr. and Grady, Dumont & Dwyer, Boston, Mass., were on brief for appellant Boston Teachers Union, Local 66, in No. 85-1747.

Henry C. Dinger, Boston, Mass., for appellees John A. Nucci and School Committee of the City of Boston in No. 85-1747.

Carolyn B. Playter, Boston, Mass., for plaintiff-intervenor, appellee El Comite de Padres in No. 85-1747.

Robert Pressman, Quincy, Mass., for plaintiffs-appellees Tallulah Morgan, et al., in No. 85-1747.

Robert Blumenthal for appellee State Board of Educ. in No. 85-1747.

Nancy Gertner and Silverglate, Gertner, Fine, Good & Mizner, Boston, Mass., on brief for plaintiff-intervenor, appellees Concerned Black Educators of Boston in No. 85-1747.

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

LEVIN H. CAMPBELL, Chief Judge.

These consolidated appeals from orders entered by the district court in the Boston public school desegregation case raise questions as to whether the federal court may properly continue to involve itself in certain school matters. At issue is whether desegregation has been so far accomplished that the orders amount to an improper perpetuation of the district court's powers.

I. BACKGROUND

The history of the Boston school desegregation case is set out in our previous decisions. See, e.g., Morgan v. O'Bryant, 671 F.2d 23 (1st Cir.1982); Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); 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). We recount only so much as most directly bears on the instant appeals.

When the plaintiffs first brought this suit in 1972, the district court found that the Boston public schools, administered by the Boston School Committee, were suffering from widespread racial segregation created, to an important extent, by the purposeful misconduct of public officials. Intentional segregation existed in the process by which students were assigned to the schools, but it did not stop there. Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.1974). The court identified many other areas where discriminatory practices occurred, such as in the hiring and placement of teachers and staff and in the locating and upkeep of school buildings. Id. at 425-66. This court affirmed these findings by the district court. 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).

In 1975, the district court began issuing orders to rectify the unconstitutional conditions.

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The most ambitious, and the most controversial, aspect of the court's remedial plan centered on student assignments. The court divided the city into eight geographical community districts and one citywide "magnet" district. Morgan v. Kerrigan, 401 F.Supp. 216, 256-57 (D.Mass.1975). It required that assignments to schools within any one of the community districts be such as would ensure that the percentage of black, white, and "other minority" students approximate the corresponding percentage of each group in that district's total student population. Id. at 261. Assignments to the magnet schools had to approximate the racial composition of the student population of the entire city. Id. at 262. We affirmed these orders on appeal. Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976).

At about this time, the district court also issued orders relating to, among other things, faculty and staff, Morgan v. Kerrigan, 388 F.Supp. 581 (D.Mass.1975), aff'd, 530 F.2d 431 (1st Cir.1976); facilities, see Morgan v. McDonough, 689 F.2d 265 (1st Cir.1982); special education, school safety and security, student discipline, bilingual education, vocational education, and student transportation, see Morgan v. Nucci, 620 F.Supp. 214, 218 (D.Mass.1985). The broad scope of the court's remedial program was necessary to transform the Boston schools into "a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).

A decade after the case was brought, in 1982, the district court found that the Boston schools had made significant progress toward the goal of "unitary status," i.e., a fully integrated, non-segregated system. The court thus commenced what it labelled a "transitional course of [judicial] disengagement." Morgan v. McDonough, 554 F.Supp. 169, 171 (D.Mass.1982). While initially keeping in effect its outstanding desegregation orders, the court established a new administrative mechanism that markedly reduced the need for direct judicial supervision of the schools. Primary responsibility for monitoring defendants' compliance with the court's desegregation orders and for mediating disputes between the parties was transferred to the Massachusetts Board of Education (the "State Board"). Id. The court required the State Board to submit to it semi-annual reports documenting "defendants' efforts and activities toward fulfilling their affirmative duty to remedy all vestiges of their [constitutional] violation." Id. at 175.

After 1982, the district court also took the further step of terminating permanently roughly half of its original remedial orders in discrete areas of school operations. See Morgan v. Nucci, No. 72-911-G (D.Mass. Aug. 8, 1985) (student transportation); Morgan v. Nucci, No. 72-911-G (D.Mass. May 17, 1985) (bilingual education, school safety and security, student discipline); Morgan v. Walsh-Tomasini, No. 72-911-G (D.Mass. Oct. 31, 1984) (special education, institutional pairing). The court did not, however, eliminate all injunctive orders. In a number of key areas where it felt judicial controls were still needed, it issued what it termed "final orders" setting out binding requirements and standards. These orders pertained to vocational and occupational education, school facilities, student assignments, staff desegregation, and parent and student organizations. Morgan v. Nucci, 620 F.Supp. 214, 218 (D.Mass.1985). The court explained that "[w]hile significant progress has been achieved in these areas, the State Board reports show that each entails some unfinished planning, implementation or monitoring." Id. The court nonetheless signalled its lessened involvement by formally removing the school case from its "active docket." Id. at 219.

The present appeals are taken from two of these so-called final orders, and from a third similar order. Briefly, the appeals are as follows:

1. The school defendants 1 challenge paragraph 3 of the final orders, which requires

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the continued observance of specified racial guidelines in assigning students to the city's schools.

2. The Boston Teachers Union appeals from paragraph 5 of the final orders, which requires the school defendants to follow hiring practices that will secure a faculty and staff consisting of not less than 25 percent black and 10 percent other minority personnel. Since the mid-70s, the schools were under orders to reach basically this same goal. As of the date of issuance of the challenged "final" orders, the goal had yet to be fully realized.

3. The city defendants 2 challenge paragraph 5 of the district court's orders relative to the unified facilities plan. These orders were entered the same day as were the "final" orders. Morgan v. Nucci, 617 F.Supp. 1316, 1327-28 (D.Mass.1985).

We discuss each of these appeals below. We (1) vacate and remand the student assignment order; (2) sustain the faculty and staff hiring order; and (3) dismiss as moot the appeal from the facilities order.

II. STUDENT ASSIGNMENTS

We turn first to the school...

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