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

• Decision Date: 28 January 1975
• Docket Number: Civ. A. No. 72-911-G.
• Citation: 388 F. Supp. 581
• Parties: Tallulah MORGAN et al., Plaintiffs, v. John J. KERRIGAN et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

388 F. Supp. 581

Tallulah MORGAN et al., Plaintiffs, v. John J. KERRIGAN et al., Defendants.

Civ. A. No. 72-911-G.

United States District Court, D. Massachusetts.

January 28, 1975.

J. Harold Flannery, Robert Pressman, Eric Van Loon, Center for Law and Ed., Cambridge, Mass., Roger I. Abrams, Case Western Reserve University, Cleveland, Ohio, John D. Leubsdorf, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

James J. Sullivan, Jr., DiMento & Sullivan, Boston, Mass., for School Committee.

Richard W. Coleman, Segal, Roitman & Coleman, Boston, Mass., for School Administration.

Sandra Lynch, Boston, Mass., for State Bd. of Ed.

Thayer Fremont-Smith, Choate, Hall, & Stewart, Boston, Mass., for Boston Home & School Association.

Kevin Moloney, Boston, Mass., for City of Boston Law Dept.

John F. McMahon, Boston, Mass., for Boston Teachers Union.

MEMORANDUM AND ORDERS ON FACULTY RECRUITING AND HIRING

GARRITY, District Judge.

In its opinion filed June 21, 1974 in this case, the court found intentional segregation of the Boston public schools by the Boston School Committee and Superintendent of Schools (hereinafter the "city defendants"). One aspect of that segregation was the racial composition and distribution of faculty members in the school system. The court found the low percentage of black teachers to be a result of unconstitutionally discriminatory use of a cut-off score on the National Teacher Examination, inadequate minority recruitment efforts, and the reputation of Boston as an anti-black, segregated school system.

The parties have submitted numerous filings, including proposed findings of fact, as to the proper scope of a long-term remedy that will eliminate the effects of past discrimination and accomplish desegregation in the areas of faculty hiring and recruitment. Several hearings have been devoted to this subject. Much of the discussion and dispute among the parties has concerned the use of a hiring ratio, a percentage goal for hiring of black teachers and the choice of the appropriate percentage goal. Many of the findings proposed by the parties are directed to this point.

Blacks comprised about 16.32% of Boston's population in 1970, which was an increase from 9.05% in 1960. A reasonable projection from these census figures is that Boston's population now is about 19% black. Black children, however, made up about 35% of the students attending public schools in the school year 1973-74.

In the 1973-74 school year, there were 373 black teachers of a total of 5214, or 7.1%. On July 31, 1974 the court entered an order which was implemented before the opening of school in September 1974. This order required the hiring of one black teacher for each white teacher hired, to the extent that qualified black candidates were available. Implementation of this order has resulted in an increase in the percentage of black teachers in the system to 10.4%.

The propriety of using a population percentage as a goal is legally established in both school cases and other cases where remedies were fashioned for discrimination. Swann v. Charlotte-Mecklenburg Board of Education, 1970, 402 U.S. 1, 25, 91 S.Ct. 1267, 28 L.Ed.2d 554; United States v. Texas Education Agency, 5 Cir. 1972, 467 F.2d 848, 873; Boston Chapter, N. A. A. C. P., Inc. v. Beecher, 1 Cir. 1974, 504 F.2d 1017.

The court has adopted 20%, approximately the black population of Boston, as an appropriate percentage goal for the hiring of black teaching faculty. This goal is below the black student population percentage, 35% in Boston schools, urged by plaintiffs and adopted in some other school cases, e. g., United States v. Texas Education Agency, supra; Keyes v. School District No. 1, 380 F.Supp. 673, D.Colo.1974, pp. 14-15 of final judgment and decree. The percentage of a minority group in the city's population is the goal adopted in numerous other discrimination cases, e. g., Boston Chapter N. A. A. C. P., Inc. v. Beecher, supra; Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315 (and cases cited therein).

City defendants argue that a percentage goal based on Boston's black population is too high. They suggest that the appropriate goal is at most the percentage of black college graduates in Boston or in the Northeast, which they argue represents the available pool of teachers for Boston teaching positions. Those percentages are about 5.25% and 4.24%, respectively,¹ and are below the present percentage of black faculty in Boston's schools. In our opinion such a goal would not be remedial or equitable.

We note first that the findings in the court's opinion of June 21, 1974 revealed that in the year 1972-73 5.4% of the permanent teachers in the Boston school system were black, a percentage above that proposed by defendants as an appropriate goal.² The court found, and the Court of Appeals affirmed, that acts of intentional racial discrimination in recruiting and hiring teachers had occurred. The conclusion is inescapable that without such discrimination there would have been more than a 5.25% or a 4.24% black teaching staff in Boston. Secondly, city defendants' proposed goal would do nothing to eliminate the effects of the acts of past discrimination found by the court. The court also found that the small number of black teachers in Boston schools, a result of discriminatory practices, was one hallmark of a dual segregated school system. As such, it contributed to the denial of the plaintiff class' rights to equal educational opportunity. To achieve the mandate of the Supreme Court in Green v. County School Board, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, to eliminate racial discrimination "root and branch", the presence of black teachers in numbers more closely proportionate to the number of black students in the schools is an important step.

The use of hiring ratios and their limited preferential treatment of black applicants in remedying past discrimination has been recognized as a permissible method of fulfilling the court's duty to "render a decree which will so far as possible eliminate the discriminatory effects of the past . . .", Louisiana v. United States, 1965, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709. Boston Chapter N. A. A. C. P., Inc. v. Beecher, supra; Associated General Contractors, Inc. v. Altshuler, 1 Cir. 1973, 490 F.2d 9; Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725; Carter v. Gallagher, supra.

Therefore black and white teachers should be hired on a one-for-one basis until the percentage of black faculty in the schools reaches 20%. This hiring goal does not require the employment of any teacher who does not meet the requirements imposed in the past for teaching in Boston's schools.³ Further, the goal will provide for a gradual increase in the number of black teachers over several years.⁴ In each year, once no more qualified black candidates are available to fill teaching vacancies on a one-for-one basis, all remaining vacancies will be filled with qualified teachers of other races.

Provision is first made for an affirmative minority recruitment program, to continue until there is a 25% black faculty. The reason any upper limit is adopted is to provide for the eventual termination of the court's supervision in this area, not because such efforts would not be desirable if continued indefinitely so that the most highly qualified could be selected from a large number of black applicants. These efforts should not terminate with the enforcement of a hiring ratio but should extend to eliminate potential black teachers' views that Boston will hire black teachers only under compulsion.

RECRUITING

The city defendants are ordered to undertake the following steps for the recruitment of additional black applicants for teaching positions in the Boston public schools until 25 percent of the teachers in the Boston public schools are black:

1. Methods. The city defendants shall visit colleges with significant numbers of black students who may be eligible for employment as teachers and shall recruit such students to apply for positions in the Boston public schools. During the course of such recruiting visits, the city defendants shall explain to the potential black applicants the opportunities for teaching in the Boston public schools and the application procedure for applying for such positions. Interviews conducted by recruiters shall satisfy any requirement for a personal interview, and applicants...