Morgan v. Hennigan, Civ. A. No. 72-911-G.

Decision Date21 June 1974
Docket NumberCiv. A. No. 72-911-G.
Citation379 F. Supp. 410
PartiesTallulah MORGAN et al., Plaintiffs, v. James W. HENNIGAN et al., Defendants.
CourtU.S. District Court — District of Massachusetts




Nathaniel R. Jones, New York City, Thomas M. Simmons, Boston, Mass., J. Harold Flannery, Eric E. Van Loon, Robert Pressman, Center for Law & Education, Cambridge, Mass., Roger I. Abrams, John Leubsdorf, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

American Jewish Congress and others, Mark A. Michelson, Steven J. Cohen, Edward J. Barshak, Boston, Mass., amici curiae.

John O. Mirick, Stephen H. Oleskey, James D. St. Clair, Hale & Dorr, Boston, Mass., for Boston School Committee.

Andrew M. Wolfe, Asst. Atty. Gen., Boston, Mass., for State Bd. of Education, Kipp, Banks, Borg, Corriveau, Densmore, Early, Finlay, Hardenburgh, Salerno, Sullivan, Tobey, Weisberg, Neil Sullivan.

Francis DiMento, DiMento & Sullivan, Boston, Mass., for Hennigan, Ellison, Kerrigan, McDonough, Tierney, Ohrenberger and School Committee of City of Boston.

Albert L. Goldman, John F. McMahon, Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., for Boston Teachers Union.


GARRITY, District Judge.

This is a school desegregation case brought by black parents and their children who attend the Boston public schools. Plaintiffs seek for themselves and on behalf of their class1 declaratory and injunctive relief against the defendants for a myriad of acts that allegedly violate the constitutional rights of the plaintiff class. Defendants are the Boston School Committee, its individual members, and the Superintendent of the Boston Public Schools (hereinafter collectively "the city defendants"), and the Board of Education of the Commonwealth of Massachusetts, its individual members, and the Commissioner of Education (hereinafter collectively "the state defendants").

Plaintiffs have alleged that the city defendants have intentionally brought about and maintained racial segregation in the Boston public schools by various actions, including the adoption and maintenance of pupil assignment policies, the establishment and manipulation of attendance areas and district lines reflecting segregated residential patterns, the establishment of grade structures and feeder patterns, the administration of school capacity, enlargement, and construction policies, transportaion practices, and by unjustifiably failing to adopt or implement policies reasonably available to eliminate racial segregation in the Boston public schools. Plaintiffs assert that these alleged practices have resulted in denying black school children the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution. See Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Keyes v. School Dist. No. 1, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. Plaintiffs further contend that the city defendants and their predecessors have engaged in racial discrimination with respect to the hiring and assignment of faculty and staff, and with respect to curricula and the allocation of instructional materials, and resources; that both the city and state defendants have implemented pupil classification practices which discriminate against some children in admission to certain schools, and have maintained a pattern of lower instructional expenditures in schools attended disproportionately by black children. Plaintiffs argue that these practices deny black children their constitutional right to equality of educational opportunity under the Fourteenth Amendment. Federal jurisdiction is invoked and exists under 28 U.S.C. § 1343, and violations of the Thirteenth and Fourteenth Amendments and 42 U.S.C. §§ 1981, 1983 and 2000d are alleged.

The city defendants have generally denied the allegations of the plaintiffs. They have also argued that to the extent that schools in the Boston system contain disproportionate numbers of whites or blacks, that result is due to residential segregation over which they have no control and also due to the neighborhood school policy, which defendants claim is a constitutionally permissible tool of educational policy. The city defendants further assert that not only have they not promoted segregation but they have tried to effect a better racial balance in the Boston public schools in accordance with the Racial Imbalance Act, Mass.G. L. c. 71, §§ 37C and 37D, and they allege that they have been found to be in compliance with that Act. Along this same line of defense, the city defendants assert that they can do no more consistently with the Racial Imbalance Act than they have already done to eliminate racial imbalance in the city's public schools.

The state defendants have also denied any constitutional wrongdoing. They contend that they have frequently made unheeded suggestions to the city defendants on how to alleviate racial imbalance in Boston; that they have only limited control over the activities of the city defendants; and that by enforcing the Racial Imbalance Act and by pursuing judicial enforcement of the Act when the board of education's orders were not complied with by the Boston School Committee they have done as much as possible to eliminate racial segregation in the Boston public schools. The state defendants have agreed with virtually all the contentions made by the plaintiffs here against the city defendants.

Various pretrial rulings should be mentioned. Shortly after the action was commenced, the members and officers of the Boston Teachers Union sought to intervene as parties defendant. Partly because the positions of the city defendants and the teachers were identical on constitutional issues involved in this case, the court denied the motion without prejudice to renewal should the alleged constitutional violations be found. The court denied a motion of the city defendants to join numerous cities and towns around Boston as defendants, partly on the ground that the proposed defendant cities and towns had not been charged by the plaintiffs with contributing to the violation of their constitutional rights.2 The court also denied a motion to dismiss the complaint by the city defendants, and their motion to stay the proceedings pending implementation of an order entered against the city defendants in a state court case between it and the state defendants involving the Massachusetts Racial Imbalance Act, Mass. G.L. c. 71, §§ 37C, 37D. School Committee of Boston v. Board of Education, 1973 Mass.Adv.Sh. 161, 292 N.E.2d 338. The court granted a motion to dismiss a crossclaim of the state defendants charging the city defendants with actions substantially set forth in plaintiffs' own complaint.

At the court's request, the parties have attempted, insofar as possible, to enter into stipulations of undisputed facts and to introduce evidence by way of designations and counter-designations of depositions and prior testimony of witnesses in the state case referred to above and in a proceeding between the city and the federal Department of Health, Education & Welfare. Counsel's pretrial activities helped to shorten the actual trial of this case, which lasted fifteen days, and which concerned only the liability issues of the case, as contrasted with issues relating to the possible remedy. The court also had a one-half day view of some of the Boston schools and received several hundred exhibits.

The case was reopened on June 20, 1973 to receive evidence regarding the use of a new high school facility. The plaintiffs alleged that the city defendants in their conduct with respect to this new structure were engaged in further racial discrimination in violation of the Equal Protection Clause. The court received further evidence from both parties. On March 15, 1974 the city defendants moved to reopen the case to submit evidence dealing with their ongoing litigation in the state courts with the State Board of Education and the plan they had been ordered to implement under the Racial Imbalance Act. This motion was denied.

Massachusetts Racial Imbalance Act

Questions of racial segregation in the public schools of Massachusetts have a unique dimension because of a state racial imbalance law, Mass.G.L. c. 71, §§ 37C, and 37D and c. 15, §§ 1I, 1J and 1K, passed by the legislature in 1965. It has been said that the requirements of the state statute go further than those of the Fourteenth Amendment, see School Committee of Springfield v. Board of Education, 1974 Mass.Adv.Sh. 657, 673, 311 N.E.2d 69 (May 1, 1974 — Springfield II), in the sense that the statute commands affirmative action to eliminate racial imbalance in public school systems whatever its cause, i. e., independently of a finding of de jure segregation. The statute has been construed and applied in several decisions of the Supreme Judicial Court of the Commonwealth pertaining to public schools in Boston and Springfield. See, as to the latter, School Committee of Springfield v. Board of Education, 1973 Mass.Adv.Sh. 1543, 287 N.E.2d 438, and Springfield II, supra. Although the statute is not directly involved in the instant proceedings, it is highly relevant. Many of the defendants' actions were taken as a result of the state law. The provisions of the statute were the subject of frequent discussion at meetings of the Boston School Committee. Efforts by the city defendants to evade the statute illumine their intent with respect to school segregation generally. Communications between the city and state defendants were usually in the context of provisions of the statute.

The Racial Imbalance Act evolved from a report in April 1965 by an advisory committee appointed by the State Board of Education and the Commissioner of Education to study racial segregation in the public schools of Massachusetts generally and of Boston, Springfield, Cambridge, Medford and Worcester...

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