Moss v. Stamford Board of Education

• Decision Date: 14 November 1972
• Docket Number: Civ. No. B-586.
• Citation: 350 F. Supp. 879
• Court: U.S. District Court — District of Connecticut
• Parties: Roy MOSS, Jr., by and through his mother and next friend, Linda D. Moss, et al. v. STAMFORD BOARD OF EDUCATION et al.

350 F. Supp. 879

Roy MOSS, Jr., by and through his mother and next friend, Linda D. Moss, et al. v. STAMFORD BOARD OF EDUCATION et al.

Civ. No. B-586.

United States District Court, D. Connecticut.

November 14, 1972.

Steven P. Hershey, Stamford Legal Services, Stamford, Conn., for plaintiffs.

Theodore I. Koskoff, Bridgeport, Conn., for defendants.

NEWMAN, District Judge.

MEMORANDUM OF DECISION ON MOTION TO DISMISS

This is a suit challenging an elementary school desegregation plan currently being implemented by the Stamford, Connecticut, Board of Education on the ground that it places unreasonable burdens upon Black and "Hispanic" children and thereby "stigmatizes" them on account of their race in violation of the equal protection clause of the Fourteenth Amendment. Defendants have moved to dismiss (a) for failure to state a claim upon which relief can be granted and (b) because the subject matter of the suit is "solely within the administrative discretion" of the Board.

The second ground of the motion is plainly insufficient. School boards of course have broad discretion in discharging their responsibilities, and developing desegregation plans is "ordinarily" within that discretion. Allen v. Asheville City Board of Education, 434 F.2d 902, 905 (4th Cir. 1970). But that discretion cannot be exercised to achieve unconstitutional results. Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971); Brice v. Landis, 314 F.Supp. 974 (N.D.Cal.1969); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Cal.1970). Hence assertion of such discretion is not a ground for denying plaintiffs the opportunity to establish their claims.

The substance of plaintiffs' claims has been modified since the filing of the original complaint. As orginally framed, the complaint challenged features of the Board's plan which (a) closed Rice and Stevens Schools and closed the fourth and fifth grades at Ryle School (all three of which had predominantly Black enrollments) and (b) required busing of minority children from the closed schools to non-contiguous school districts. At oral argument on a motion for a preliminary injunction,¹ plaintiffs withdrew paragraph 7 of the prayer for relief of their original complaint, which had sought reopening of Stevens and the closed grades at Ryle, and their amended complaint omits these requests for relief. The claim of unconstitutional discrimination is now leveled essentially at the busing. As stated in plaintiffs' supplemental memorandum of law:

Plaintiffs in the present case make no claim to a constitutional right to a neighborhood school. Nor do plaintiffs object to busing per se. They do object to being stigmatized on account of their race, and it merely happens to be that stigmatization is imposed through busing. They are stigmatized because they are required to travel to non-contiguous districts while all other children attend the school closest to their homes.

Defendants contend that this claim is insufficient as a matter of law, relying primarily on the Second Circuit's decision in Norwalk Core v. Norwalk Board of Education, 423 F.2d 121 (2d Cir. 1970). Norwalk Core upheld a desegregation plan under which three schools with predominantly Black enrollment were closed and their students bused to schools in predominantly White² neighborhoods. While this apparent similarity to the pending case has surface appeal, that decision cannot support a motion to dismiss for two reasons.

First, the decision did not establish as a matter of law that the claim of the plaintiffs in Norwalk Core was insufficient. It upheld, as not clearly erroneous, the factual findings of District (now Circuit) Judge Timbers that the decision of the School Board was made "in good faith and without improper racial motivation or arbitrary disregard of the rights of a minority. . . ." 298 F.Supp. 213 at 222; 423 F.2d at 124. The District Court credited trial testimony to establish that "nonracial considerations" justified the board's actions under the "`heavier burden' test of Loving v. Virginia, 388 U.S. 1, 11 , 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). . . ." 298 F.Supp. 226. Thus, rather than show that the plaintiffs' claim here is insufficient, Norwalk Core demonstrates that the claim is one which requires presentation of evidence to determine whether the alleged discrimination can be established and if so, whether it can be sufficiently justified.

Secondly, the claim asserted in Norwalk Core is significantly different from the claim asserted here. The District Court in Norwalk Core succinctly stated the claim as follows:

Specifically, plaintiffs challenge the Board's action in busing Black and Puerto Rican children out of Black neighborhoods to White neighborhood schools without maintaining Black neighborhood schools and cross-busing White children to such Black neighborhood schools. Id. at 215. (Emphasis added).

Thus, busing the minority children was not objected to per se; it was challenged because it was being done without (a) maintaining a school in a Black neighborhood and (b) busing White children to such a school. The crucial issue thus became whether a school in a Black neighborhood could be closed. Since the plaintiffs there challenged the burden of busing only to the extent that it was a consequence of the closing of schools in the Black neighborhood, the District Court upheld the busing features of the plan simply on a finding that any burdens of such busing "although statistically related to race, actually stem from a valid administrative decision" concerning school locations. Id. at 222.

Plaintiffs here are not asserting a constitutional right to a neighborhood school. Nor are they claiming that the decision to close only the predominantly Black schools is unconstitutional.³ Compare Lee v. Macon County Board of Education, supra (disapproving closing of Black schools for racial reasons) with Carr v. Montgomery County Board of Education, 429 F.2d 382 (5th Cir. 1970) (approving closing of Black schools for non-racial reasons); see also Haney v. County Board of Education of Sevier County, 429 F.2d 364 (8th Cir. 1970) (requiring justification for closing Black schools). Their specific complaint is that even though the closing of their schools required busing, the Board has denied them equal protection of the laws by adopting a busing plan which unconstitutionally burdens them on account of their race. They do not attack, as did the Norwalk Core plaintiffs, the school closings that led to the busing. Their sole complaint is that the specific details of the Stamford busing plan discriminate on racial grounds. That issue was neither tendered nor decided in Norwalk Core.

It is not open to question that governmental action is properly challenged under the equal protection clause when it is alleged to discriminate on the basis of race. This principle applies in at least three different contexts. One is where governmental action uses a classification based explicitly on race. See, e. g., McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). A second is where the governmental action, though not explicitly based on race, evidences a manifest purpose to exclude or otherwise burden a racial group. See, e. g., Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955). A third is where governmental action is neither explicitly nor implicitly designed to discriminate against a racial group, but its effect falls upon a racial group to a significantly disproportionate degree. Examples of this newly emerging claim arise in the fields of employment, see, e. g., Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972), municipal services, see, e. g., Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5th Cir. 1971), adhered to en banc, 461 F.2d 1171 (5th Cir. 1972), and administration of governmental programs, see, e. g., Norwalk Core v. Norwalk...