Norwalk Core v. Norwalk Board of Education

• Decision Date: 04 September 1968
• Docket Number: Civ. No. 12624.
• Citation: 298 F. Supp. 203
• Court: U.S. District Court — District of Connecticut
• Parties: NORWALK CORE, a/k/a Norwalk Chapter of the Congress of Racial Equality and Roodner Court Fair Rent Association et al., Plaintiffs, v. NORWALK BOARD OF EDUCATION, a/k/a the Board of Education of the City of Norwalk, Connecticut, Defendant.

298 F. Supp. 203

NORWALK CORE, a/k/a Norwalk Chapter of the Congress of Racial Equality and Roodner Court Fair Rent Association et al., Plaintiffs, v. NORWALK BOARD OF EDUCATION, a/k/a the Board of Education of the City of Norwalk, Connecticut, Defendant.

Civ. No. 12624.

United States District Court D. Connecticut.

September 4, 1968.

Jonathan W. Lubell, of Lubell & Lubell, New York City (Stephen L. Fine, Westport, Conn., on the brief), for plaintiffs.

Robert H. Rubin, Sp. Corp. Counsel of City of Norwalk, South Norwalk, Conn., for defendant.

MEMORANDUM OF DECISION DENYING PLAINTIFFS' APPLICATION FOR A TEMPORARY RESTRAINING ORDER

TIMBERS, Chief Judge.

Plaintiffs move for a temporary restraining order to prevent defendant from closing the Nathaniel Ely School, South Norwalk, Connecticut, pending determination of their motion for a preliminary injunction in this class action. Their motion is based on the pleadings, supporting affidavits, briefs and oral argument of counsel on September 3, 1968. After due consideration, the Court holds that plaintiffs' motion for a temporary restraining order should be denied. In addition, pursuant to Rule 65(a) (2), Fed.R.Civ.P., the Court orders that the trial of the action on the merits be advanced and consolidated with the hearing on the motion for a preliminary injunction.

Plaintiffs' motion for a temporary restraining order accordingly is denied.

FACTS

Plaintiffs Norwalk Core (Core), Roodner Court Fair Rent Association (Association) and two minor children allege that defendant Norwalk Board of Education (Board), while committed to racial integration in the schools and cognizant of the important advantages of the neighborhood school concept, nevertheless has preserved neighborhood public elementary schools only in middle class and upper middle class white neighborhoods. It is alleged that the Board "has intentionally abandoned or destroyed and permitted to lie unused" public elementary schools in the low income Black and Puerto Rican neighborhoods. This, it is claimed, constitutes a double standard denying the class which plaintiffs claim to represent the right to attend an integrated neighborhood school and compelling them to be transported into white neighborhoods. That the busing operates in one direction only is said to be a denial of equal protection of the law under the guise of racial integration.

Plaintiffs seek a declaratory judgment holding this discriminatory practice unconstitutional; a permanent injunction prohibiting the maintenance of white neighborhood schools without at the same time instituting a Black neighborhood school policy; and a permanent mandatory injunction to compel the Board to produce a Black neighborhood school policy for approval by the Court.

The Board denies all the allegations except those which attribute to it a policy of promoting racial integration; and the Board alleges special defenses, including standing, failure to state a claim, lack of jurisdiction, unconstitutionality of relief sought, administrative discretion, and failure to exhaust remedies available under Connecticut law.

CLAIMS OF THE PARTIES WITH RESPECT TO THE TEMPORARY RESTRAINING ORDER SOUGHT

Plaintiffs, in requesting a temporary restraining order, seek to maintain the status quo as of the time of commencement of this action; such status quo is said to be threatened by the Board's announced plans to discontinue the pre-kindergarten and kindergarten classes at the Nathaniel Ely School prior to the start of the present school year.^* This decision allegedly was made after commencement of the present action, and is said to be "directly harmful" to plaintiffs' case and an "affirmative move" by the Board to undermine the purposes of the suit. The four and five year old children who would attend Nathaniel Ely are now to be bused, exposed to hazards and disadvantages, and deprived of comfort and self-confidence. Their parents will be deprived of a local forum in which to air their views. The affidavits submitted in support of the instant motion reiterate these allegations.

The Board, in opposition to the instant motion, accuses plaintiffs of laches in not moving for the present relief until just before the beginning of the school year, alleging that plaintiffs have been aware of the Board's intention to discontinue the kindergarten program at Nathaniel Ely since May or June, 1968. During the time between plaintiffs' notice of the Board's intentions and the instant motion, the Board claims it has expended money to institute the busing program. In addition, it claims it could not staff the School adequately now were the Court to order its reopening. Notwithstanding this factual controversy, the Board urges that granting of the restraining order would be contrary to recent constitutional doctrine in that it would have the necessary effect of depriving the children of the opportunity to attend an integrated school by compelling them to attend a segregated kindergarten in a building devoid of other school activities.

OPINION

A motion for a temporary restraining order is addressed to the discretion of the Court. It seeks to preserve the status quo pending hearing on the motion for a preliminary injunction and trial on the merits. Although its denial may work injury to the movant, this alone is insufficient to compel its issuance. The movant has no "right" to a temporary restraining order. Instead, the Court must balance the validity of the claims asserted against the nature of the acts to be enjoined, and evaluate the movant's probability of success in the underlying action. Thus, while irreparable injury is a prerequisite, it is not controlling. 7 Moore's Federal Practice ¶ 65.04-.05 (2d ed. 1966).

In the present controversy, plaintiffs are asserting rights against a public instrumentality. At this late date, the temporary restraining order they seek may disrupt the educational policy of the community of Norwalk. As noted in Yakus v. United States, 321 U.S. 414, 440-41 (1944):

"Where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff. * * * This is but another application of the principle, declared in Virginian Ry. Co. v. System Federation, 300 U.S. 515, 552, that `Courts of equity may, and frequently do, go much farther both to give and withhold relief in

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