Morgan v. McDonough, s. 76-1121

• Decision Date: 26 January 1977
• Docket Number: 76-1239 and 76-1426,Nos. 76-1121,s. 76-1121
• Citation: 548 F.2d 28
• Parties: Tallulah MORGAN et al., Plaintiffs, Appellees, v. John J. McDONOUGH et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 28

548 F.2d 28

Tallulah MORGAN et al., Plaintiffs, Appellees, v. John J. McDONOUGH et al., Defendants, Appellants.

Nos. 76-1121, 76-1239 and 76-1426.

United States Court of Appeals, First Circuit.

Argued Nov. 2, 1976.

Decided Jan. 26, 1977.

Francis J. DiMento, Boston, Mass., with whom James J. Sullivan, Jr., Philip T. Tierney, and DiMento & Sullivan, Boston, Mass., were on brief, for appellants.

John Leubsdorf, Boston, Mass., with whom Laurence S. Fordham, J. Harold Flannery, Foley, Hoag & Eliot, Boston, Mass., Nathaniel R. Jones, New York City, Robert Pressman, and Eric E. Van Loon, Cambridge, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and GIGNOUX ^*, District Judge.

COFFIN, Chief Judge.

After extended litigation resulting in final decisions that (1) the Boston public schools had been intentionally segregated, largely through the deliberate and wilful conduct of School Committees through the years, 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), and (2) that a plan of desegregation approved by the district court should be put into effect, Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert. denied sub nom. Morgan v. McDonough, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976), the district court faced a specific crisis threatening to cripple the implementation of the plan a thoroughgoing deterioration of both order and education in the South Boston High School. The district court refused to adopt the alternative of closing the school and, instead, placed it under receivership on December 9, 1975, later appointing as receiver the Boston Superintendent of Schools. The "limited, general purpose" of the receivership was "to accomplish as soon as feasible such changes in the administration and operation of South Boston High School as are necessary to bring the school into compliance with the student desegregation plan . . . and other remedial orders entered by the court . . .." This court affirmed the receivership order in Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert. denied, --- U.S. ----, 97 S.Ct. 743, 50 L.Ed.2d 755 (1977).

The present appeal involves five orders in connection with the operation of the receivership. One is the court's "Third Order as to Facilities", entered February 11, 1976. The other four are orders for the appointment of a headmaster and other key officials at South Boston High, entered between April 7 and September 27, 1976. The order as to facilities required the School Committee and its agents to make certain repairs and expenditures for renovation. It is resisted as encroaching on the Committee's statutory authority in the area of building alterations and repairs. The appointment orders pursued a different approach. They were not orders appointing key personnel and requiring only that they be paid. They required that the Committee appoint the persons named by the court persons who had been nominated by the receiver, the Superintendent of Schools. The orders are resisted on a basis different from, and arguably undercutting, the objection to the facilities order. The Committee argues that, even if an order like the facilities order, i. e., a direct appointment by the court with payment to be made accordingly, was within the court's power, ordering the Committee to appoint was beyond it. ¹

The Addendum to Morgan v. McDonough, supra, 540 F.2d at 535, is dispositive as to the facilities order. ² The repairs authorized in the present order, like the earlier ones, were "recommended by appropriate officials of the Boston School Department, including the temporary receiver." Id. Indeed, the order was based upon the Plan and Chronology for the Substantial Renovation of South Boston High School submitted by the receiver, Superintendent of Schools Fahey, in response to the original receivership order. The record shows that the planning and implementation of the renovation proceeded with the active participation of many officials of the School Department, notably the Chief Structural Engineer of the Department of Planning and Engineering, and that many repairs were accomplished without court order. The School Committee does not argue, as it did not argue with respect to the earlier orders, that any of the items ordered are per se unnecessary or excessive. As we observed previously, "(q)uite obviously if the School facilities were maintained at a level way below normal, the difficulty of restoring and maintaining a functioning, desegregated School at which learning of any type could occur would be increased." Id. The contention of the Committee that, under the existing circumstances, it alone may "fix the level of normality" could, if accepted, reduce the receivership to the function of presiding over the shell of a school. We find no error nor any abuse of discretion in the facilities order.

With respect to the orders for appointment of administrative staff, the School Committee concedes that the terms of the receivership dictated replacement of the administrative staff at South Boston High School. As we have noted, the orders in question effectuated this by requiring the filling of key vacancies including that of headmaster with persons designated by the Superintendent of Schools in her capacity as receiver. We have already held that "(g)iven the situation that had developed at the School under existing leadership, the court was entitled to conclude that a change in command was indicated. The change tied into the appointment of the receiver, giving the latter, in conjunction with the court, the opportunity, after study, to bring in administrators and perhaps faculty that seemed best able to cope with the extraordinary difficulties and pressures at the School." Morgan v. McDonough, supra, 540 F.2d at 534. The School Committee makes no representation that it wished to participate more actively in the search for new administrators or that, absent court order, it would have appointed individuals committed to making desegregation work at the School. Its only objection at this point is that the district court, instead of itself appointing people to these positions and directing the city's Treasurer to pay them, ordered the School Committee to appoint specific individuals. This, they assert, was an extreme and unwarranted invasion of their prerogatives and responsibilities as elected officials.

We begin by noting our concern that the Committee never advised the district court that it preferred the procedure of direct levy on the Treasurer. The court was entitled to assume that the Committee's objection was to the end achieved, not to the technique employed. Had a specific objection been raised to the means, the court might well have considered whether alternative procedures more acceptable to the Committee were available. Nevertheless, the Committee's objection deserves our most serious consideration, for the orders do represent an extraordinary use of authority by the court. And we hope that what we say will be understood, and not misunderstood, by all concerned with the twin problems of managing a school during its traumatic adaptation to a desegregated system and of expediting return of that management to normal administration as soon as feasible. The Committee's argument is powerful when presented as an abstract proposition. Clearly considerations of federal-local comity and of separation of powers dictate that an order-mandated vote be considered a last resort after "less restrictive alternatives" have been found wanting in order to carry out a decree designed to vindicate constitutional rights. But, just as clearly, if that purpose requires some infringement of the normal authority of officials, such extraordinary measures may be taken, since otherwise the court would be put in the untenable position of being unable to enforce its own lawful orders with respect to desegregation.

We can perceive no jurisdictional bar to the district court's orders. Compare 7 Moore's Federal Practice PP 65.03(2), 65.19, 65.20. ³ In the absence of such a bar, the court's equity power is broad and flexible, and the propriety of an order turns on a balancing of individual and collective interests in the particular case. See Swann v. Charlotte-Mecklenburg Board of Ed., 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970). The test is whether these orders are a reasonable exercise of power, considering both the gravity of the situation that gave rise to the orders and the extent to which they intrude on other important interests.

A showing of direct impairment of an outstanding school desegregation order justifies equitable relief that might not otherwise be appropriate, see Gilmore v. City of Montgomery, 417 U.S. 556, 571, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974). And, in extreme circumstances, we think it is clear that the equity power of a federal court extends to orders controlling the actions of elected officials in the exercise of their duties. See, e. g., Griffin v. County School Board, 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964) (holding that the district court could, "if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate and maintain without racial discrimination a public school system . . . .") (emphasis supplied); Swann v. Charlotte-Mecklenburg Board of Ed., supra, 402 U.S. at 16, 91 S.Ct. 1267 (affirming the district court's order directing the board to adopt one of three desegregation plans or come forward with an acceptable plan of its own); Wright v. Council of City of Emporia, 407 U.S. 451, 458, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972) (upholding the district court's order, prompted by the city's otherwise lawful move to establish its own school system, enjoining the city council from taking "any action which would interfere in any...