Oliver v. Donovan

• Decision Date: 26 November 1968
• Docket Number: No. 68-C-1034.,68-C-1034.
• Parties: Rev. C. Herbert OLIVER et al., Plaintiffs, v. Bernard E. DONOVAN, Superintendent of Schools for the City of New York, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

293 F. Supp. 958

Rev. C. Herbert OLIVER et al., Plaintiffs, v. Bernard E. DONOVAN, Superintendent of Schools for the City of New York, et al., Defendants.

No. 68-C-1034.

United States District Court E. D. New York.

November 26, 1968.

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Jeremiah S. Gutman, New York City, Rita Murphy and Morton Stavis, Newark, N. J., for plaintiffs.

J. Lee Rankin, Corp. Counsel, City of New York, New York City, for all defendants except Albert Shanker; John J. Loflin, Jr., New York City, of counsel.

Delson & Gordon, New York City, for Albert Shanker, as individual and official; Ralph P. Katz, New York City, of counsel.

TRAVIA, District Judge.

The plaintiffs bring on this matter by way of order to show cause seeking a temporary restraining order enjoining the defendants from continuing to:

1. take any action to compel the plaintiffs to retain within the School District of Ocean Hill-Brownsville teachers whom the Local Governing Board of the District has determined should be transferred out of the District;

2. station police in and around the Ocean Hill-Brownsville schools to enforce the terms of an agreement made by defendants pursuant to the settlement of a strike declared illegal by the New York Supreme Court; and

3. enforce the suspension and/or removal of principals of the Ocean Hill-Brownsville schools and the unit administrator Rhody McCoy, who have been selected by the community and/or community representatives.

Attached to the motion papers is the affidavit of one of the plaintiffs, Reverend C. Herbert Oliver, and the verified complaint. It is on these papers that the order to show cause was obtained and signed by this Court on October 11th, 1968.

The request for a restraining order as to item number "1" in the order to show cause was withdrawn. Consequently, all issues relating to these teachers have been removed from the case.

The plaintiffs moved to amend their application before the Court to include a request for a temporary restraining order enjoining the defendants, or any of them, from closing J.H.S. 271.

This motion is granted and ordered included in the order to show cause as item number "4".

We shall, therefore, deal with items "2", "3" and "4" in the order to show cause, the complaint and all the papers, exhibits and proceedings had.

In their complaint, the plaintiffs invoke the jurisdiction of this Court under Title 28 U.S.C. §§ 1331, 1343(3) and (4). In addition, they assert the action is authorized by Title 42, U.S.C. §§ 1981, 1983, 1985, 1986 and 1988. They claim the action arises under the 13th and 14th Amendments to the Constitution of the United States. (Par. 12, p. 5, complaint.)

At the outset and after a careful reading of all the papers submitted and the initial argument, there appeared to be a serious question as to this Court's jurisdiction.

A hearing was afforded to the plaintiffs to give them an opportunity to show by testimony and exhibits a basis upon which jurisdiction of this Court could be established.

A study of the complaint shows that paragraphs "1" through "19" are preliminary or conclusory in nature, used to describe the charges, the alleged jurisdiction of the Court and the background of the present dispute leading up to a crippling strike of the City's school teachers and supervisors.

In paragraphs "20" through "24" plaintiffs assert that the dispute came to a head when the Governing Board and Administrator of the Ocean Hill-Brownsville Demonstration School District attempted to transfer 13 teachers and 6 administrators out of the district because of their actions in opposition to school decentralization. As a result of the attempted transfer of the 19 staff members, some 350 teachers in the district remained away from their jobs in sympathy during the last 6 weeks of school in the Spring of 1968. New teachers were recruited over the summer to replace most of those who left their positions in the Spring. By the opening of school in September, 1968 it appeared that approximately 100 of the original 350 wanted to return. The Governing Board, however, requested that these 100 teachers be assigned elsewhere.

Problems relating to these teachers led to a strike.

In paragraph "25" plaintiffs charge defendants Lindsay, Donovan and members of the Central Board of Education, with encouraging, aiding, and giving sanction to the illegal strike of the United Federation of Teachers, and that the teachers have not lost pay as a result of their illegal strike.

In paragraph "26" of the complaint it is alleged the specific demand of the defendant Shanker has been that notwithstanding the determination of the community to rid itself of teachers who took action contrary to the decentralization program and who illegally struck against their children, the Governing Board be compelled to place those teachers in teaching positions in the classrooms of the Ocean Hill-Brownsville District, and in order to compel adoption of his program the defendant Shanker is willing to prevent the functioning of the entire educational system of the City.

In paragraph "27" of the complaint the plaintiffs allege that notwithstanding that it must be acknowledged that any insistence that the said teachers be placed in teaching positions not only is contrary to the wishes of the community but is destructive of any possibility of successful development of the educational program of the Ocean Hill-Brownsville District, the defendants Central Board, Donovan, and Mayor Lindsay have yielded to continued threats of a third illegal strike by the defendant Shanker. Pursuant thereto, the defendants Central Board, Donovan, Mayor Lindsay and Chief of Police have sought to compel the placement of the replaced teachers in classrooms in the Ocean Hill-Brownsville District and, beginning October 7, 1968, have placed over 1,000 policemen in the said District. As a result of all the foregoing, education in the Ocean Hill-Brownsville District is at a standstill.

In paragraph "28" of the complaint the plaintiffs allege as follows:

The adoption of a plan of decentralization and the involvement of the community in the development of a new approach to education was designed to correct the denial of education for the Black and Puerto Rican children of the Ocean Hill-Brownsville District. The defendants have deprived these children of quality education as developed by the Ocean Hill-Brownsville District and have therefore deprived rights guaranteed under the Thirteenth and Fourteenth Amendments to the Constitution of the United States, to wit:

A. The defendants are attempting to impose the terms of an agreement negotiated by the New York Central Board of Education and the United Federation of Teachers, without the participation of the Ocean Hill-Brownsville Governing Board or any other representatives from the local communities of New York City having a stake in quality education through decentralized community control. The agreement itself and the attempt to enforce the agreement were not made to meet any lawful need or purpose, but expressly as a response to a strike declared illegal by the New York Supreme Court. This action was taken by the defendants knowing full well that the consequences thereof would be disruption of education in the Ocean Hill-Brownsville District, and the disruption of decentralization in the entire City of New York.

B. The attempt to impose and enforce the terms of the aforementioned agreement has in fact resulted in the disruption of the school system in Ocean Hill-Brownsville and in the education of the children who attend school in that District, to wit:

(1) Defendants have caused massive numbers of police to be stationed in and around the Ocean Hill-Brownsville schools to enforce the terms of the aforementioned agreement. The police have and are continuing to:

a. deny parents and other members of the community the right to enter the schools;

b. harass, intimidate, molest and arrest members of the community who wish to enter the schools;

(2) At least one school in the district has been closed;

(3) The Local Governing Board and the Unit Administrator, pursuant to a directive issued by the Central Board, have been suspended, thereby denying to plaintiffs the right to run and control schools through representatives of the community;

(4) Principals chosen by the community or its representatives have been suspended and removed from the District's schools pursuant to a directive issued by the Central Board.

C. Defendants' attempt to enforce the agreement, and the actions taken pursuant thereto, are designed to destroy and/or have the effect of destroying the rights of plaintiffs and the class they represent to achieve quality education through a system of decentralized community control of the schools in New York City.

In paragraph "29" plaintiffs assert their basic position, which is, that the 13th and 14th Amendments impose on defendants a duty not to interfere with the development of quality education for Black and Spanish-speaking children of New York and equality of education with White children. And finally, the Amendments also impose an affirmative duty to develop, support and protect quality and equality of education for the Black and Spanish-speaking children of New York.

On the basis of the complaint and the order to show cause, the plaintiffs ask that this Court issue a preliminary and permanent injunction enjoining the defendants, their attorneys, employees and agents, acting individually or in concert from:

(1) engaging in conduct designed to deny and/or having the effect of denying plaintiffs and the class they represent their Thirteenth and Fourteenth Amendment rights to insure quality and equality of education for their children and the children of all minority groups residing in the City of New York;

(2) attempting to impose the terms of a negotiated settlement arrived at between the New York Central Board of Education and the United Federation...