Morgan v. Burke

Citation926 F.2d 86
Decision Date03 December 1990
Docket NumberNo. 90-1614,90-1614
Parties65 Ed. Law Rep. 1075 Tallulah MORGAN, et al., Plaintiffs, Appellees, v. Daniel R. BURKE, et al., Defendants, Appellees. Boston Teachers Union Local 66, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Matthew E. Dwyer with whom Grady and Dwyer, was on brief, Boston, Mass., for appellant.

Robert Pressman with whom Thomas I. Atkins, was on brief, Cambridge, Mass., for plaintiffs, appellees.

Henry C. Dinger with whom Marshall Simonds, Deborah J. Gresco, and Goodwin, Procter & Hoar, were on brief, Boston, Mass., for defendants, appellees.

Caroline B. Playter with whom Kenneth Kimerling, Nat. Lawyers Guild, Kehoe, Doyle, Playter & Novick, and Puerto Rican Legal Defense Fund, Inc., were on brief, Boston, Mass., for El Comite de Padres.

Jody L. Newman with whom Nancy Gertner, and Dwyer, Collora & Gertner, were on brief, Boston, Mass., for Concerned Black Educators of Boston.

Robert H. Blumenthal, Sp. Asst. Atty. Gen., with whom Carmen I. Rodriguez, Asst. Atty. Gen., was on brief, Quincy, Mass., for Com. of Mass.

Before BREYER, Chief Judge, ALDRICH and COFFIN, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

After nearly two decades of litigation aimed at desegregating the Boston public school system, this appeal by Boston Teachers Union Local 66 (BTU) challenges certain features of a "Final Judgment" entered by the district court on May 31, 1990.

The challenges are confined to the area of faculty and staff desegregation and present three issues: (1) whether, despite some shortfalls from earlier established goals, unitary status has been achieved in the hiring of faculty and administrative staff; (2) whether the court's prescription for determining the end of judicial involvement in faculty and staff hiring and layoffs "constitutes an impermissible permanent order;" and (3) whether, even if overall unitary status has not been achieved for faculty and staff, the court should have declared that partial unitariness had been achieved insofar as "other minority" (non-black) faculty and staff are concerned.

We affirm the Final Judgment, as amended by the deletion of two words which unnecessarily inject uncertainty in an otherwise definite and limited decree and which the parties at oral argument agreed did not accord with their understanding.

Unitariness

The starting point in dealing with the first issue, whether or not unitariness has been achieved in faculty/staff hiring, is Morgan v. Nucci, 831 F.2d 313 (1st Cir.1987). In that case, BTU appealed on the same issue it raises here: whether the goals of 25 percent black and 10 percent other minority faculty and staff, which were established in the mid-70s and were not yet fully realized, were no longer within the court's jurisdiction because unitariness had been achieved.

We began our analysis in Nucci by rehearsing the history of discriminatory hiring and segregationist assignment policies which had isolated black students, teachers, and administrators in a limited number of schools. Id. at 327. We then summarized the lengthy history of orders relating to faculty hiring dating from 1975: an initial requirement to hire one black for every white teacher until 20 percent of faculty was black and to pursue an active recruiting program until a goal of 25 percent black faculty was reached; a 1976 order extending the same goals for black administrators; a 1978 order requiring that black faculty increase by at least 1 1/2 percent a year until the 20 percent goal was reached; a 1981 order suspending the affirmative recruitment obligation during a budget crisis but requiring that layoffs preserve existing racial ratios; a 1985 order allowing tenured teachers to be recalled without regard to race; and a 1985 "final" order establishing faculty/staff goals of 25 percent black and 10 percent other minorities with required minimum annual rates of increase of 1/2 percent and 1/4 percent, respectively. Id. at 327-28.

We responded to BTU's argument that the implementation of racially neutral personnel practices was "tantamount to unitariness" within the teaching of Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) by saying:

[I]t is well established that a desegregation court is allowed--indeed required--to combat not only existing racial partisanship but also the lingering effects of past discrimination. Thus, the fact that a particular school policy or program may be 'racially neutral,' in that it no longer reflects discriminatory animus, does not prove that the effects of prior discrimination have been purged.

. . . . .

Here, ... the makeup of the schools' faculty remains nonunitary judged by the standards established virtually at the inception of the desegregation process. And the record does not suggest these goals have become infeasible, a negative inference buttressed by the failure of the school defendants--who, after all, must execute the hiring orders--to appeal from this aspect of the final orders. Absent the attainment of 'maximum practicable desegregation' in a particular educational area, a district court has every right to require continued compliance with its outstanding orders.

831 F.2d at 328-29 (citations omitted). See also Bd. of Educ. v. Dowell, --- U.S. ----, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (U.S.1991) (court must determine whether vestiges of past discrimination have been eliminated to the extent possible by looking to all facets of school operations).

This is the law of this case. BTU recognizes this fact but asserts that progress during the past five years, the good faith of public officials, and the present degree of compliance warrant a different result. But BTU bears a heavy burden. The determination that a school system has or has not reached a point of "maximum practicable desegregation" in the composition of its faculty and staff is a fact-intensive one. Findings are reversible only if clearly erroneous. See, e.g., Keyes v. School Dist. No. 1, 895 F.2d 659, 666 (10th Cir.1990). Moreover, the discretion accorded to a judge who has lived with the case since its inception must be ample. We would not lightly find abuse of such discretion. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971) ("In this area, we must of necessity rely to a large extent ... on the informed judgment of the district courts in the first instance....").

What are the essential facts? BTU understandably submits evidence of impressive progress: between 1986 and 1990, blacks and other minorities accounted for 53.49 percent of new hires and 72 percent of newly appointed permanent teachers; they account for 40 percent of all principals and headmasters and 37.28 percent of all other administrators; the School Committee has implemented a voluntary affirmative action plan, with, according to BTU, "no evidence that the BTU is unwilling or unable to negotiate over that item." On the other hand, there are shortfalls that we cannot say are insignificant. While the "other minorities" faculty goal of 10 percent was met as of March 15, 1990, the percentage of blacks was 23.84, 1.16 percentage points below the goal; while black administrators had met the 25 percent goal for both Category I and II administrators, "other minorities" had met the 10 percent goal for Category II, but not for the more important Category I (principals and headmasters); and while blacks now constitute more than 25 percent of the faculty at one of the three examination schools, the Boston Latin Academy, neither blacks nor other minorities have met the five other percentage goals set for those schools.

The district court arrived at its final judgment in four steps. It first asked for written submissions commenting on a very simple draft final judgment which would have permanently enjoined defendants from racial discrimination and required the maintenance of the Department of Implementation. It then held a hearing to receive oral presentations. Finally, it issued its own "final Judgment" and an accompanying explanatory memorandum.

The court first announced at the oral hearing that the black and other minorities goals were not "picked out of the air" but that the court and the parties had "found that black and other minority faculty were available to the extent of the percentages set." It then stated:

The Court finds explicitly that there has not been a unitary system achieved in ... the Boston Public Schools. Before they are unitary in the sense ... that vestiges of past discrimination have been eliminated, a great deal remains to be done.

In its written memorandum accompanying final judgment, it added that "experience shows that complete compliance ... is within reach."

We look in vain for any indication that the court committed clear error. Defendants had met the court's yearly percentage increase goals for black faculty in four of the five years between 1984-85 and 1989-90. The default in one year was attributable to the School Board's misreading of the court's requirement. BTU points to a number of articles in educational journals attesting to impending shortages of minority teachers and a memorandum from the Boston Schools Senior Personnel Manager acknowledging this fact. But a reading of the former reveals no statistics for Massachusetts or the New York-New England area and the observation of the Senior Personnel Manager was made in the context of his request for waivers of certification which would facilitate defendants' efforts to comply with the court's requirements. Additionally, the School Defendants seek affirmance of the judgment and "dispute the union's contention that achievement of the remedial goals of staff desegregation are no longer attainable."

Indeed, BTU does not seem to argue that the court wrongly rejected its argument that literal compliance was infeasible. It seems to rest on the proposition...

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