Arthur v. Nyquist, Civ-1972-325.

• Decision Date: 01 March 1977
• Docket Number: No. Civ-1972-325.,Civ-1972-325.
• Citation: 429 F. Supp. 206
• Parties: George ARTHUR et al., Plaintiffs, v. Ewald P. NYQUIST et al., Defendants.
• Court: U.S. District Court — Western District of New York

429 F. Supp. 206

George ARTHUR et al., Plaintiffs, v. Ewald P. NYQUIST et al., Defendants.

No. Civ-1972-325.

United States District Court, W. D. New York.

March 1, 1977.

Richard F. Griffin, Buffalo, N. Y., and Herman Schwartz, Amherst, N. Y., for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., New York City (Ruth Kessler Toch, Sol. Gen., and Jean M. Coon, Asst. Sol. Gen., Albany, N. Y., of counsel), and (Eugene A. Panfil, Asst. Atty. Gen., Buffalo, N. Y., of counsel), for the Commissioner of Education and the Board of Regents of the State of New York, defendants.

Linden & Deutsch, New York City (David Blasband, New York City, of counsel), for Individual Regents Barell, Indelicato, Genrich, Griffith, Klein, Jovanovich, Kendall & Yavner, defendants.

Leslie G. Foschio, Corp. Counsel, Buffalo (Anthony Gregory, Asst. Corp. Counsel, and Aubrey McCutcheon, Special Counsel, Buffalo, N. Y., of counsel), for Mayor Stanley M. Makowski, Superintendent of Schools Eugene T. Reville, The Board of Education, and the Common Council of the City of Buffalo, defendants.

CURTIN, Chief Judge.

In December 1976, after the Supreme court vacated and remanded the Austin school case, Austin Independent School District v. United States, ___ U.S. ___, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976), this court requested each of the parties to this school case to brief the Austin case and Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the case that prompted the Supreme Court's action in Austin. Following this court's request, the City defendants by motion asked this court to vacate its April 30, 1976 liability decision, Arthur v. Nyquist, 415 F.Supp. 904 (W.D.N. Y.1976), or, in the alternative, to reconsider that decision in light of Washington v. Davis and Austin. The court has agreed to reconsider its decision.

The City defendants contend that Washington v. Davis, the Austin case, and the subsequently decided case of Village of Arlington Heights v. Metropolitan Housing Development Corp., ___ U.S. ___, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), all of which are post-April 30, 1976 cases, have changed the law this court relied on in its liability decision. The State defendants urge the same argument in their briefs. To determine the impact of these cases requires a close look at each.

I. WASHINGTON v. DAVIS

In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the plaintiffs alleged that a test administered by the District of Columbia's Police Department to prospective police officers was a violation of their fifth amendment due process rights. The plaintiffs, two black men whose applications had been rejected, did not claim that the department intentionally discriminated against them through the use of the test, but merely charged that the test had "a highly discriminatory impact in screening out black applicants." 348 F.Supp. 15, 16 (D.D.C.1972). On appeal, the circuit court reversed the district court and held that the disproportionate racial impact alone was sufficient to sustain plaintiff's claim of a constitutional wrong. 168 U.S. App.D.C. 42 512 F.2d 956, 960 (1975).

The Supreme Court's decision in Washington, overruling the circuit court, stated explicitly:

Our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. 426 U.S., at 239, 96 S.Ct., at 2047 (emphasis in original).

During the course of its opinion, the Court noted that school cases have adhered to the principle that "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." 426 U.S., at 240, 96 S.Ct., at 2048. The Court cited with approval its 1973 decision in the Denver school case, Keyes v. School District No. 1, 413 U.S. 189, 205, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), in which the Court had stated that one of the essential elements of de jure segregation is "a current condition of segregation resulting from intentional state action."

II. AUSTIN

When the Supreme Court vacated the circuit court opinion in the Austin case, it remanded the case to the circuit court "for reconsideration in light of Washington v. Davis." ___ U.S. ___, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976). Some light was shed on the Court's thinking by the separate opinion of Justice Powell, concurred in by Chief Justice Burger and Justice Rehnquist, which stated:

As suggested by this Court's remand premised upon Washington v. Davis, supra, the Court of Appeals may have erred by a readiness to impute to school officials a segregative intent far more pervasive than the evidence justified.1

1 Although in an earlier stage in this case other findings were made which evidenced segregative intent, see, e. g., United States v. Texas Education Agency, 467 F.2d 848, 865-869 (CA 5 1972) (actions by school authorities contributing to segregation of Mexican-American students), the opinion below apparently gave controlling effect to the use of neighborhood schools. . . .

The Austin case has a long history. Filed in 1970, the suit alleged that the Austin Independent School District AISD discriminated against both black and Mexican-American students. With respect to the latter, however, the district court found that the Government did not prove intentional discrimination. On appeal, the circuit court, in an en banc decision, 467 F.2d 848 (5th Cir. 1972) Austin I, reversed this finding as clearly erroneous. Among other things, the circuit court stated:

The district court may have applied an erroneous legal standard. . . .

It is not necessary to prove discriminatory motive, purpose, or intent as a prerequisite to establishing an equal protection violation when discriminatory effect is present. 467 F.2d, at 864-865, n.25.

The case came back on appeal to the Fifth Circuit after the district court had adopted and put into effect the remedy proposal of the AISD. In the intervening years, the Supreme Court had decided the Keyes case, in which it specifically noted the intent requirement. The circuit court admitted that the "cause and effect"¹ test previously applied in Austin I, which obviated any need for finding discriminatory intent, was supervened by Keyes. The court proceeded to find the defendants had intentionally discriminated against the plaintiffs. 532 F.2d 380, 390-392 (5th Cir. 1976) Austin II. However, it apparently is unclear to the Supreme Court, as evidenced by Justice Powell's words, supra, whether the Fifth Circuit made a proper finding of intent. During the course of his opinion, Judge Wisdom noted that Austin is a residentially segregated city, and that the "natural, foreseeable, and inevitable result of the AISD's student assignment policy," 532 F.2d, at 390, which is to assign a student to the school nearest his or her home, is a segregated school system in Austin. The inference of discriminatory intent, said the court, was inescapable. The reason for utilizing the "reasonable and foreseeable consequences" test is that "it is difficult — and often futile — to obtain direct evidence of an official's intentions." 532 F.2d, at 388.

Justice Stevens, in a concurring opinion in Washington v. Davis, supra, has made the same observation:

Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. . . .

My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of Washington v. Davis might assume. 426 U.S., at 253-254, 96 S.Ct., at 2054.

III. ARLINGTON

In Arlington, a non-profit developer had arranged to buy a tract of land in a suburb of Chicago and build low and moderate income housing. The projected series of town houses, amounting to some 190 units, would occupy a fifteen-acre tract that had been zoned for single-family houses. The developer requested a zoning change to allow his multiple-family project to proceed and he was turned down.

Arlington, in the 1970 census, was recorded as having 64,000 residents of whom twenty-seven were black. The town house development was expected to be integrated, and the developer and several prospective black tenants sued various Arlington officials claiming that the refusal to rezone the land was a violation of their fourteenth amendment rights. After a trial, the district court ruled that the plaintiffs had not proved that defendants' actions were motivated by racial discrimination. Instead, the court found that the village officials acted "to protect property values and the integrity of the Village's zoning plan." 373 F.Supp. 208, 211 (N.D.Ill.1974). The court noted that this particular parcel had been zoned for single-family use ever since 1959 when the zoning map was first drawn up.

On appeal, however, the circuit court, although it agreed that racial discrimination had not motivated the defendants, reversed because the refusal to rezone the tract had a racially disproportionate effect. 517 F.2d 409 (7th Cir. 1975). The Supreme Court, citing Washington v. Davis, stated that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact." Arlington, supra, ___ U.S. at ___, 97 S.Ct. at 563.

As Justice Stevens did in Washington v. Davis, the Arlington Court went on to discuss at some length the inherent difficulty of imputing intent when the actions of a group of people are concerned.

Rarely can it be said that a legislature or

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