Aspira of NY v. Bd. of Ed. of City of New York
Citation | 423 F. Supp. 647 |
Decision Date | 22 October 1976 |
Docket Number | No. 72 Civ. 4002.,72 Civ. 4002. |
Parties | ASPIRA OF NEW YORK, INC., et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants. |
Court | U.S. District Court — Southern District of New York |
Puerto Rican Legal Defense & Education Fund, Inc., New York City, for plaintiffs; Herbert Teitelbaum, Richard J. Hiller, New York City, of counsel.
W. Bernard Richland, Corp. Counsel of the City of New York, New York City, for defendants; Michael S. Cecere, New York City, of counsel.
Plaintiffs, New York City public school students of Hispanic origin (along with their parents and guardians), are entitled to a program of bilingual education under a consent decree signed on August 29, 1974. The decree was made pursuant to 42 U.S.C. § 2000d, federal regulations and guidelines thereunder, and the Supreme Court's enforcing pronouncements in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). The extensive steps required for compliance have placed this court in an increasingly common, but unvaryingly delicate and difficult, role for federal trial courts — the role of supervising faithful performance of tasks that are in their nature primarily administrative rather than judicial. Cf. Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281 (1976).1 The court's assignment in such cases calls for a nice mixture of humility and resolve. On the one hand, seeking to superintend and rule upon intricate and technical programs like the ones in this case, an appointed judge is, or certainly should be, forcefully reminded that "courts are not the only agency of government that must be assumed to have capacity to govern." Stone, J., dissenting in United States v. Butler, 297 U.S. 1, 87, 56 S.Ct. 312, 329, 80 L.Ed. 477 (1936). On the other hand, the rights of the people under the law, when they are duly brought to issue before the court, must be forthrightly declared and enforced.
The mandate to decide emerges now in more than routinely tense circumstances: plaintiffs have demanded that the Board of Education and the Chancellor be held in contempt for their failure to comply with the duties they assumed under the consent decree and implementing orders of the court. The word "contempt" rings fiercely; if its connotations in law included only lay notions like scorn and wilful disobedience, plaintiffs could not prevail. But the idea in this context includes failures in meaningful respects to achieve substantial and diligent compliance. In this sufficient sense, the defendants are found to have been in contempt, and it has become the court's duty to declare it. The grounds and occasion of the declaration are detailed below. For reasons also to be stated, a prime practical consequence at the present time will be an award to plaintiffs of costs and attorneys' fees for their efforts in seeing to the performance of defendants' obligations.
The case began in September of 1972. For most of two years, defendants opposed robustly the rights plaintiffs asserted to bilingual instruction. In 1974, however, the Supreme Court decided Lau v. Nichols, supra, and plaintiffs made an imposing motion for summary judgment. Thus confronted, and with some encouragement from this court, defendants joined with plaintiffs in the creative efforts that produced the consent decree. For their primary contributions to that result, plaintiffs were held entitled to attorneys' fees, 65 F.R.D. 541 (1975).
The decree provided for a broad program: for methods of identifying those to receive bilingual instruction, for specific forms of instruction in Spanish and English, for the formulation of pertinent educational standards, the preparation and distribution of instructional materials, the recruitment and training of staff, the procurement of suitable funding, continued consultation with plaintiffs, periodic reports, and an array of other measures unnecessary to detail now. Time limitations at various points reflected the results of hard bargaining and compromise. It was recorded, for example, that the development of methods for testing and identifying participating students had already begun, "with the objective of implementation by October 1, 1974." Minimum educational standards were to be promulgated by April 1, 1975. While plaintiffs had sought greater speed, "full implementation of the Program" was put off for over a year, to September 1975. In the meantime, a timetable for still other steps, including the designation of pilot schools and their inauguration of the full program by the spring semester of 1975, was prescribed.
A Special Master, Morris P. Glushien, Esq., was appointed to resolve disputes that seemed likely to arise. Serving mostly without pay, Mr. Glushien has rendered valuable service to the parties, the court, and the City in adjudicating, or otherwise helping to resolve, a variety of matters. The court has been employed directly for similar and related assignments from time to time. See 394 F.Supp. 1161 (D.C.1975).2
In the spring and summer of 1975, plaintiffs proceeded by orders to show cause to press claims that defendants' performance under the decree was falling substantially short. In May, eight months after testing methods were to have been in place, they demanded administration of eligibility tests to huge numbers said still to have been neglected. In July, another order to show cause sought to prevent the discharge, lay-off, or "excessing" of instructional personnel needed for the program. The court was confronted at that point with a failure by defendants to supply even sufficient information for an intelligent adjudication. Defendant Board was ordered, on August 15, 1975, to submit by August 25:
On August 26, defendants supplied plaintiffs and the court with only some of the required information. The insufficiency, insufficiently explained, triggered talk and thoughts of possible contempt problems. In the event, however, on September 9 (when the picture was complicated by a teachers' strike, in progress since September 8, which ended on September 16), the court reiterated and expanded the earlier order for information by ordering as follows:
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