Brewer v. The West Irondequoit Central Sch. Dist.

• Decision Date: 30 September 1999
• Docket Number: No. 99-7186,99-7186
• Citation: 212 F.3d 738
• Parties: (2nd Cir. 2000) Laurie A. Brewer, and Jodie Foster, individually and as parents and guardians of Jessica L. Haak, a minor, Plaintiffs-Appellees, v. The West Irondequoit Central School District, The Urban-Suburban Interdistrict Transfer Program, Monroe Number One Board Of Cooperative Educational Services, Theresa J. Woodson, Gretchen Stephan and Marlene S. Allen, in their individual and official capacities, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 738

212 F.3d 738 (2nd Cir. 2000)

Laurie A. Brewer, and Jodie Foster, individually and as parents and guardians of Jessica L. Haak, a minor, Plaintiffs-Appellees, v. The West Irondequoit Central School District, The Urban-Suburban Interdistrict Transfer Program, Monroe Number One Board Of Cooperative Educational Services, Theresa J. Woodson, Gretchen Stephan and Marlene S. Allen, in their individual and official capacities, Defendants-Appellants.

No. 99-7186

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 30, 1999,

Decided: May 11, 2000,

[Copyrighted Material Omitted]

Jeffrey Wicks, Bansbach, Zoghlin, Wicks & Wahl, P.C., Rochester, NY, for Plaintiffs-Appellees.

Kevin S. Cooman, McConville, Considine, Cooman & Morin, P.C., Rochester, NY (Peter J. Weishaar, of counsel), for Defendants-Appellants.

Janell M. Byrd, NAACP Legal Defense and Educational Fund, Inc., Washington, DC (Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Dennis D. Parker, Victor A. Bolden, of counsel, New York, NY) submitted a brief for amicus curiae the NAACP Legal Defense and Educational Fund, Inc. in support of the Defendants-Appellants.

Bill Lann Lee, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C. (Mark L. Gross, Rebecca K. Troth, of counsel) submitted a brief for amicus curiae the United States in support of the Defendants-Appellants.

Eliot Spitzer, Attorney General of the State of New York (Preeta D. Bansal, Solictor General, Peter H. Schiff, Deputy Solicitor General, Denise A. Hartman, Nancy A. Spiegel, Assistant Attorney Generals, of counsel) submitted a brief for amicus curiae the State of New York in support of the Defendants-Appellants.

Before: Miner, Parker, and Straub, Circuit Judges.

Judge Parker concurs in the majority opinion, and files a separate concurring opinion.

Judge Miner dissents in a separate opinion.

Straub, Circuit Judge:

Defendants, the West Irondequoit Central School District ("Irondequoit District"), the Urban-Suburban Interdistrict Transfer Program ("the Program"), Monroe Number One Board of Cooperative Educational Services("Monroe Board")¹ and the individual defendants, appeal from an order entered on January 14, 1999, by the United States District Court for the Western District of New York (David G. Larimer, Chief Judge), granting the plaintiffs' motion for a mandatory preliminary injunction. See Brewer v. West Irondequoit Central Sch. Dist., 32 F. Supp. 2d 619 (W.D.N.Y. 1999). The order directed the defendants to allow Jessica L. Haak, who was in the fourth grade at the time, to transfer from the Rochester City School District ("Rochester District"), her district of residence in Monroe County, New York, to the Iroquois Elementary School ("Iroquois") in the Irondequoit District, a neighboring suburban district in Monroe County, New York, pursuant to the Program as soon as possible, but no later than the start of the second semester or February 1, 1999. See id. at 635. The Program is a state-administered, interdistrict school transfer program, in which six school districts in New York State voluntarily participate primarily in order to attempt to reduce racial isolation within their boundaries, as is further explained below.

It is undisputed that, as administered, the Program only allows minority students to transfer from schools in the Rochester District to suburban schools, and only nonminority students may transfer from suburban schools to the Rochester District. The plaintiffs alleged in the District Court, as they do on appeal, that the denial of Haak's request to transfer to Iroquois under the Program on the ground that she is not a minority student violated her rights under the Fourteenth Amendment, and constituted discrimination under 42 U.S.C. 2000d,² 42 U.S.C. 1983, and New York Education Law 3201³. The District Court granted the injunction and ordered Haak's transfer, expressing doubt that the defendants could demonstrate a compelling government interest, and that the Program was not narrowly tailored to serve such an interest in any event⁴. See Brewer, 32 F. Supp. 2d at 632-33. At this stage in the proceedings, in light of the plaintiffs' heightened burden in seeking a mandatory injunction, we disagree on both accounts and, therefore, vacate the injunction and remand for a full trial on the merits.

BACKGROUND

The Program operates and is funded pursuant to New York State legislative and State Educational Department ("SED") authorization. See N.Y. Educ. Law 3602(36) (McKinney 1995); N.Y. Comp. Codes R. & Regs. tit. 8, 175.24 (1999) (the "Regulations"). The State funding replaced the Program's original federal funding under the Emergency School Aid Act of 1972, Pub. L. No. 92-318, Title VI, 86 Stat. 354 (1972), codified at 20 U.S.C. 1601-1619, (repealed 1979). The Program is administered by the Monroe Board, described by the parties as a regional school district which provides or coordinates educational programs for the local school districts in Monroe County. The Irondequoit District is one of six school districts in Monroe County, New York, voluntarily participating in the Program.

The Program, one of the oldest voluntary desegregation efforts in the nation, is the only one of its kind in New York, and one of only two or three such voluntary programs in the United States. The Program has its origins in a 1965 cooperative desegregation effort between the Rochester District and the Irondequoit District, "to reduce, prevent and eliminate minority group isolation in the schools of Rochester and Monroe County through voluntary desegregation." The Program arose in light of racial segregation within the Rochester District, a problem recognized by the SED, the Rochester District school board and superintendent, and the public at large.

Currently, the Program has several stated goals, expressed in various documents relating to the Program. For example, the Program's Mission Statement identifies as its goals the following: "Reducing Minority Group Isolation; Encouraging Intercultural Learning; Promoting Academic Excellence; Fostering Responsible Civic Leadership." Although the plaintiffs emphasize the differing stated goals of the Program, and the District Court acknowledged those, see Brewer, 32 F. Supp. 2d at 621, the court also made a finding that "it is clear that the main purpose of the Program is to reduce what is described as 'racial isolation' within the population of the participating school districts." Id. As the District Court stated, "in other words, the program is designed to reduce the percentage of minority students in predominately minority city schools, and to increase the percentage of minority students in predominately white suburban schools." Id. See also N.Y. Educ. L. 3602(36)(a) (stating that the Program is "designed to reduce racial isolation").⁵

"Racial isolation" is defined by the Regulations as existing when "a school or school district enrollment consists of a predominant number or percentage of students of a particular racial/ethnic group." N.Y. Comp. Codes R. & Regs. tit. 8, 175.24(a)(2) (1999). Accordingly, the districts that voluntarily participate in the Program must demonstrate each year that implementation of the Program "will reduce racial isolation by transferring minority pupils, nonminority pupils or both on a voluntary basis between participating urban and suburban districts." N.Y. Comp. Codes R. & Regs. tit. 8, 175.24(c)(1) (1999).

As the Program is currently administered, only minority pupils are allowed to transfer from "predominantly minority city schools" to participating suburban schools, and non-minority students may transfer from suburban schools to city schools provided that their transfers "do not negatively affect the racial balance of the receiving school." The phrase "racial balance" is not defined in the Program's literature. Although the Regulations define a "minority pupil" as "a pupil who is of Black or Hispanic origin or is a member of another racial minority group that historically has been the subject of discrimination," N.Y. Comp. Codes R. & Regs. tit. 8, 175.24(a)(1) (1999),⁶ neither the Program application, nor the acknowledgment letter sent to the parents who apply, nor the Program brochures, contain any reference to the student's race or ethnicity. The defendants assert that according to the "usual practice," a parent who makes the initial inquiry about the application process by telephone is advised of the minority pupil requirement, although Haak's mother claims that she was not told of this requirement. Parents are expected to "self-screen" their children. In addition, the defendants state that once the applicant is met in person by a Program Administrator, a question may be raised as to the student's race as a result of the student's "name, manner of speech and phrasing, and personal appearance of the child as observed during an interview or orientation meeting."

The undisputed evidence before the District Court also shows that for the 1998-99 school year, approximately 580 students attended schools in the participating suburban school districts via the Program. Approximately 67 of those students were newly selected for that school year, the other 513 continued from prior years. With the exception of Haak, none of the students who were accepted into the Program for transfer that year to the suburban school districts is a non-minority pupil within the SED definition. Haak, who is white, was initially accepted into the Program for transfer in July 1998. Her acceptance was acknowledged in writing even after she had been seen in person by Iroquois's Assistant Principal. However, her acceptance was revoked after another administrator became concerned that Haak was not a minority pupil when she saw Haak in person and verified her race as Caucasian/White in the Rochester District records.

Statistics show that the concentration of minority...