Morgan v. McDonough

• Decision Date: 16 September 1982
• Docket Number: Nos. 80-1271,80-1272,80-1288 and 80-1296,s. 80-1271
• Parties: 6 Ed. Law Rep. 911 Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John McDONOUGH, et al., Defendants, Appellees. Boston Home and School Association, Intervenor, Appellant. Tallulah MORGAN, et al., Plaintiffs, Appellees, v. John J. McDONOUGH, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 265

689 F.2d 265

6 Ed. Law Rep. 911

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

Boston Home and School Association, Intervenor, Appellant.

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

Nos. 80-1271, 80-1272, 80-1288 and 80-1296.

United States Court of Appeals, First Circuit.

Argued April 9, 1982.

Decided Sept. 16, 1982.

Marshall Simonds, P. C., and Steven P. Perlmutter, Boston, Mass., with whom Henry C. Dinger and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for appellants Boston School Committee and The City of Boston.

Thayer Fremont-Smith, Boston, Mass., with whom Lee T. Gesmer, Choate, Hall & Stewart, Wm. Shaw McDermott, McDermott & Rizzo, Boston, Mass., were on brief, for Boston Home and School Ass'n.

Robert H. Bohn, Jr., Sp. Asst. Atty. Gen., Boston, Mass., with whom Bohn & Kaplan, and Robert H. Blumenthal, Auburndale, Mass., were on brief, for Com'r of Bd. of Educ.

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, Cambridge, Mass., with whom Robert Pressman, Cambridge, Mass., was on brief, for plaintiffs, appellees in Case Nos. 80-1272 and 80-1296.

Laurence S. Fordham, Boston, Mass., with whom J. Harold Flannery, Jeffrey B. Abramson, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for plaintiffs, appellees in Case Nos. 80-1271 and 80-1288.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

These appeals are from orders entered in 1980 in the continuing Boston school desegregation case. For prior aspects of the case, see Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); 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).

In appeals numbered 80-1271, 80-1272 and 80-1296 certain defendants ¹ and an intervenor-Boston Home and School Association-challenge orders entered in March and April of 1980 by the district court rejecting parts of a "Unified Facilities Plan" developed at the court's request by the Boston School Department and others. The challenged orders directed the closing of two elementary schools in addition to the ten recommended by the defendants. The court also conditionally rejected defendants' "moderate" student assignment plan for the 1980-1981 school term. Finally, it refused to accept two novel proposals-"linkage" and "beacon schools"-said to ameliorate the destabilizing effects of school closings.

In appeal numbered 80-1288 the intervenor Boston Home and School Association appeals from the district court's April 25, 1980 denial of its motion that the court altogether terminate its jurisdiction over student assignments.

I.

Underlying these appeals are the district court's efforts between 1974 and 1980 to eliminate surplus seats in the Boston public schools by compelling the closing of unneeded school buildings. In its original desegregation opinion, rendered in 1974, the district court found that policies regarding the building of new schools and the closing of old ones had contributed to the intentional segregation of the Boston school system. The court stated,

Plaintiffs have proved that the defendants intentionally segregated schools at all levels, ...; built new schools for a decade with sizes and locations designed to promote segregation; maintained patterns of overcrowding and underutilization which promoted segregation at 26 schools; and expanded capacity of approximately 40 schools by means of portables and additions when students should have been assigned to other schools with the effect of reducing racial imbalance.

Morgan v. Hennigan, 379 F.Supp. 410, 481 (D.Mass.1974), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir.), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975).

In 1975, when outlining remedial steps to desegregate the Boston schools, the district court, pursuant to recommendations by court-appointed experts, indicated that some 20 schools should be closed. It said,

A major reason for closing schools is that desegregation is more easily and economically achieved through the consolidation of student bodies. Many of the city's elementary schools in black areas have in the past been overcrowded; many elementary schools in white areas have been underutilized, e.g., when a new school was constructed to replace an old one in a predominantly white neighborhood, the school committee accommodated parents protesting the closing of the old one by keeping them both open. Should school facilities be uniformly used to capacity, an excess of several thousand available seats at the elementary school level would remain. Thus a number of the older elementary schools can be closed, with accompanying savings of the costs of operating and heating those schools. Elementary schools will be kept open whose locations enable busing to be minimized overall, and which permit the more efficient assignment of students by geocodes, accomplishing desegregation and minimizing the need to split geocodes. Uniform utilization of facilities throughout the city will also tend to equalize the availability of the system's resources to all students.

Morgan v. Kerrigan, 401 F.Supp. 216, 245 (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). ²

Describing the "development of a long-range plan for the construction, repair, and replacement of school facilities" as "one precondition to disengagement," the court in 1977 directed the School Committee, the City of Boston and the State Board of Education (referred to collectively as the "Joint Planners") to submit a "Unified Facilities Plan (UFP) ... (to) include a schedule for closings, construction and renovation, replacements, as well as repair and refurbishing for all nine school districts, for the years 1977 through 1986." The Joint Planners were told to take account of "the likely effect upon desegregation of any developments in implementing the UFP."

Six months after this order, on November 25, 1977, the Joint Planners submitted a lengthy "Unified Facilities Plan" with the requested projections relating to school construction and utilization. The 1977 UFP, however, generated considerable community debate and intense opposition. One community group, the Citywide Parents Advisory Council (CPAC), which had not been afforded an opportunity to have input into the Plan, thought it

to be based upon inaccurate and insufficient data; to ignore educational, desegregation and community factors in its decision; to burden minority children unfairly in its pattern of school closings; to fail to prove its economic arguments for closing; to overlook the long-term implications for Boston of its recommended actions.

Apparently because of such opposition and because the plan lacked sufficient community input, the district court, in modifying orders on March 21, 1978, implicitly rejected the proposed UFP. It called for "a Unified Facilities Plan which will meet future needs and gain the understanding and support of parents and community groups." The court later urged the Joint Planners to begin by agreeing on the basic criteria for a UFP. In response, the Joint Planners developed a "Manual for District Planning Activities," which they submitted to the court on April 23, 1979. This Manual contained a six-step planning process and included criteria for determining which schools would be closed in future years. Since the closing decision was linked to the number of anticipated students, a formula for determining the excess capacity in the system was also developed and included in the Manual.

The court enthusiastically approved the Manual on August 15, 1979, noting, however, that portions of the Manual "impl(y) erroneously that safeguarding continuity and stability of the education process is of equal importance to achieving desegregation and equal education opportunity." The court stated firmly that "(d)esegregation, in accordance with the flexible guidelines promulgated in 1975, must be given first priority." The court further ordered that the new UFP

shall eliminate by July 1, 1980 no fewer than half of all excess seats (as of April 15, 1979) in elementary schools; and shall identify by name elementary school facilities to which students will not be assigned for the 1980-81 school year.

The court ordered the Joint Planners to file the new UFP no later than December 1, 1979.

On October 3 the Joint Planners published a draft UFP, which came to be known as the "Green Book." The Green Book called, among other things, for the immediate closing of 16 elementary schools, ³ the designation of the remaining nearly 80 elementary schools as either "base" schools (indicating they would remain in long-term service) or "support" schools (indicating they were subject to closing based on enrollment trends), and the conversion of Roxbury High School to a middle school. Like the 1977 UFP, the 1979 Green Book generated intense community debate, particularly regarding the schools slated for immediate or eventual closing. In response to these and other concerns, Boston School Superintendent Wood sent a memorandum on November 29, 1979 (two days prior to the December 1 UFP deadline set by the court) to the School Committee which recommended substantial revisions to the UFP. ⁴ Superintendent Wood's memo became the next incarnation of the UFP-what the appellees call the "Wood Plan."

The Wood Plan reduced the number of schools scheduled for immediate closing from 16 to 10. Instead of designating certain schools as "support" schools, the Wood Plan proposed two new categories of facilities-"linkage" schools and "beacon" schools. The linkage and beacon proposals were...