Morgan v. O'Bryant

• Decision Date: 17 February 1982
• Docket Number: Nos. 81-1561,I,81-1617,AFL-CI,s. 81-1561
• Parties: 28 Fair Empl.Prac.Cas. 58, 28 Empl. Prac. Dec. P 32,544, 3 Ed. Law Rep. 12 Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John D. O'BRYANT, et al., Defendants, Appellees, Local 66, Boston Teachers Union, AFT,ntervenor, Appellant. Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John D. O'BRYANT, et al., Defendants, Appellees, Boston Association of School Administrators and Supervisors, Intervenor, Appellant. Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John D. O'BRYANT, et al., Defendants, Appellees, Concerned Black Educators of Boston, Intervenor, Appellant. to 81-1619 and 81-1646.
• Court: U.S. Court of Appeals — First Circuit

Page 23

671 F.2d 23

28 Fair Empl.Prac.Cas. 58, 28 Empl. Prac.

Dec. P 32,544,

3 Ed. Law Rep. 12

Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John D. O'BRYANT, et al., Defendants, Appellees, Local 66, Boston Teachers Union, AFT, AFL-CIO, Intervenor,

Appellant.

Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John D. O'BRYANT, et al., Defendants, Appellees,

Boston Association of School Administrators and Supervisors,

Intervenor, Appellant.

Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John D. O'BRYANT, et al., Defendants, Appellees, Concerned Black Educators of Boston, Intervenor, Appellant.

Nos. 81-1561, 81-1617 to 81-1619 and 81-1646.

United States Court of Appeals First Circuit.

Argued Jan. 6, 1982.

Decided Feb. 17, 1982.

Bruce A. Miller, Detroit, Mich., with whom Christopher P. Legghio, Stuart M. Israel, Miller, Cohen, Martens & Sugarman, P. C., Detroit, Mich., James T. Grady and Grady & McDonald, Boston, Mass., were on brief, for Local 66, Boston Teachers Union, AFT, AFL-CIO.

Paul F. Kelly, Boston, Mass., with whom Richard W. Coleman, and Segal, Roitman & Coleman, Boston, Mass., were on brief, for Boston Ass'n of School Adm'rs and Sup'rs, AFL-CIO.

Caroline B. Playter, Boston, Mass., with whom Doyle, Playter, Novick & Berkin Boston, Mass., and Kenneth Kimerling, New York City, were on brief, for El Comite De Padres.

Larry J. Johnson, with whom Robert Pressman, Cambridge, was on brief, for Tallulah Morgan, et al.

Marshall Simonds, Boston, Mass., with whom Henry C. Dinger, and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for Boston School Committee.

Robert H. Blumenthal, Boston, Mass., Counsel, Dept. of Ed., with whom Robert H. Bohn, Jr., Sp. Asst. Atty. Gen., Boston, Mass., was on brief, for Bd. and Com'r of Ed.

John C. Somers, New York City, on brief for The A. Philip Randolph Institute, amicus curiae.

Nancy Gertner, Charles W. Rankin, and Silverglate & Gertner, Boston, Mass., on brief for Concerned Black Educators of Boston.

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

LEVIN H. CAMPBELL, Circuit Judge.

These consolidated appeals are from orders of the district court in the Boston school desegregation case. A short history may prove helpful. In 1974, the district court found that Boston public school authorities had knowingly engaged in a policy of racial discrimination and intentionally maintained a dual school system along racially segregated lines. Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.1974). This court affirmed. 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). The basic remedial orders were entered in 1975 and affirmed in 1976. Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass.1975), aff'd, 530 F.2d 401 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976). In addition to holding that pupil assignment and other actions were discriminatory, the district court found that defendants discriminated in the area of faculty and staff hiring ¹ and assignment. 379 F.Supp. at 456-66. Accordingly, the court ordered that black and white teachers be hired on a one-for-one basis until the percentage of black faculty reached 20 percent (the approximate percentage of blacks in Boston at that time), ² with affirmative recruitment to continue until a figure of 25 percent black faculty was reached, Morgan v. Kerrigan, 388 F.Supp. 581 (D.Mass.1975), and this court affirmed, 530 F.2d 431 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976). An order to the same effect with respect to administrators was entered on February 24, 1976; this order was neither published nor appealed. In 1978, the district court found that the defendants had not complied with its faculty recruitment and hiring orders, and therefore modified those orders to require that the percentage of black teachers increase annually by at least one and one-half percentage points until the 20 percent goal was attained. This unpublished order was entered July 5, 1978 and was not appealed.

By early 1981, the percentage of black teachers was 19.09 percent and that of black administrators 20.53 percent. This progress was threatened, however, by a budget crisis precipitated by decreased funding. In order to comply with its reduced budget, the Boston School Committee considered massive layoffs of teachers and administrators. It was faced, however, with conflicting obligations: on the one hand, its collective bargaining agreements called for layoffs by reverse seniority; on the other, such a procedure would drastically reduce the percentage of black teachers and administrators (most of whom had been hired in the last few years and thus had little seniority), in violation of the district court's desegregation orders. The School Committee decided that if layoffs of teachers proved to be necessary, they should be conducted so as to maintain the current percentage of black teachers, but layoffs of administrators, if necessary, should be conducted by reverse seniority. It filed motions with the district court for approval of these decisions. On June 2, 1981, the district court granted the motion-with minor modifications-with respect to the teachers. ³ On July 9, 1981, it denied the motion with respect to the administrators and ordered that the percentage of black administrators be maintained even in the face of layoffs.

The court's orders were conditional. That is, they did not themselves mandate any layoffs. Rather, they simply specified the principles determining who should be laid off if, for reason of economics or otherwise, layoffs were in fact made. Layoffs have since taken place in accordance with the priorities established in the court orders, thus maintaining the existing percentages of black faculty and administrators at close to 20 percent. The Boston Teachers Union ("BTU") asserts that between 700 and 1,100 teachers have been laid off. If the seniority approach had been followed, this would have reduced the percentage of black teachers to somewhere around 8 percent. Our information on the administrators from the Boston Association of School Administrators and Supervisors ("BASAS") is more precise: 15 headmasters and principals with permanent appointments were laid off. If seniority had been followed, 13.8 percent of those remaining would be black.

The appeals consolidated here for our review are as follows. In No. 81-1561, intervenor BTU appeals from the June 2 order and from the district court's denial of its request for reconsideration of that order on July 24, 1981. The plaintiff class, the School Committee, the State Board of Education, and intervenors El Comite de Padres Pro Defense de la Educacion Bilingue and Concerned Black Educators of Boston ("CBEB") have filed briefs as appellees; the A. Philip Randolph Institute has filed a brief as amicus curiae urging reversal. In No. 81-1617, intervenor BASAS appeals from the July 9 order. The appellees are the same as those in No. 81-1561, with the exception that the School Committee takes no position in this appeal. Finally, Nos. 81-1618, 81-1619, and 81-1646 are appeals brought by CBEB arguing that the orders do not go far enough in remedying past discrimination. No. 81-1618 is from the June 2 order; No. 81-1619 is from the denial of CBEB's motion to rescind that order; and No. 81-1646 is from the July 9 order.

The standards for equitable remedies in school desegregation cases have been set forth by the Supreme Court in Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). As discussed infra, we believe that the district court committed no abuse of discretion under Milliken, and we therefore affirm its orders. We note additionally, however, that the procedural posture of this case also argues for an affirmance. BTU asserted virtually none of the arguments it now presents on appeal to the district court during the argument conducted below concerning the faculty order entered June 2. At that argument, it chiefly spoke against the need for any layoffs and also against proposals to tailor the layoff procedure so as actually to increase beyond present ratios the percentage of black faculty. As far as we can glean from the record, it did not argue that the Boston School Committee's proposed formula for laying off teachers-the formula largely adopted by the district court-would involve unconstitutional discrimination, nor did it make any request for an evidentiary hearing, until its motion for reconsideration filed almost seven weeks after the original order. The district court must have broad discretion in deciding such motions for reconsideration, especially where no reasons are advanced for the movant's failure to present its arguments earlier. Cf. Willens v. University of Massachusetts, 570 F.2d 403, 406 (1st Cir. 1978) (discretion to grant relief from judgment). Similarly, BASAS did not argue that the district court's maintenance approach was unconstitutional at the July 9 hearing on the motion with respect to the administrators. Finally, CBEB had filed no motions until after the June 2 order was entered; the district judge understandably expressed considerable doubt as to his ability to grant the relief CBEB requested in the absence of a prior motion. On appeal, the district court's exercise of its discretion is judged by the information and motions before it at the time it rendered its decision-not by hindsight. On this basis, it would be difficult-quite apart from our view of the substantive merits as discussed below-to overturn the lower court's handling of the various issues then before it.

The importance of this case, however, and its human impact, naturally make us hesitant to decide on procedural and technical grounds. We thus turn to the merits of the controversy. The first Milliken requirement is that, "like other equitable remedies, the nature of the desegregation remedy is to be determined...