Parent Ass'n of Andrew Jackson High School v. Ambach

• Decision Date: 17 April 1979
• Docket Number: 365 and 366,D,Nos. 362,s. 362
• Citation: 598 F.2d 705
• Parties: The PARENT ASSOCIATION OF ANDREW JACKSON HIGH SCHOOL, an Unincorporated Association, Fred Perez, a minor by his father and next friend Bienvenido Perez, Brian and Roland Felder, minors by their parents and next friends Beverly and Leroy Felder, Robin Brown, a minor by her father and next friend David Brown, Joan McFarland, a minor by her father and next friend Jerome McFarland, on behalf of themselves and on behalf of all persons similarly situated, Plaintiffs-Appellees, v. Gordon AMBACH, as Commissioner of Education of the State of New York, Irving Anker, Chancellor of the City School District of the City of New York, Samuel Poltnick, as Director of the Division of High Schools of the City of New York, Abraham Wilner, as Superintendent of the Queens Division of High Schools of the City School District of the City of New York, James Regan, Isaiah Robinson, Stephen Aiello, Amelia Ashe, Joseph Barkan, Robert Christen, Joseph Monserrat, as members of the Board of Education of the City School District of the City of New York, Defendants-Appellants. ockets 78-7274, 78-7307 and 78-7308.
• Court: U.S. Court of Appeals — Second Circuit

Page 705

598 F.2d 705

The PARENT ASSOCIATION OF ANDREW JACKSON HIGH SCHOOL, an Unincorporated Association, Fred Perez, a minor by his father and next friend Bienvenido Perez, Brian and Roland Felder, minors by their parents and next friends Beverly and Leroy Felder, Robin Brown, a minor by her father and next friend David Brown, Joan McFarland, a minor by her father and next friend Jerome McFarland, on behalf of themselves and on behalf of all persons similarly situated, Plaintiffs-Appellees, v. Gordon AMBACH, as Commissioner of Education of the State of New York, Irving Anker, Chancellor of the City School District of the City of New York, Samuel Poltnick, as Director of the Division of High Schools of the City of New York, Abraham Wilner, as Superintendent of the Queens Division of High Schools of the City School District of the City of New York, James Regan, Isaiah Robinson, Stephen Aiello, Amelia Ashe, Joseph Barkan, Robert Christen, Joseph Monserrat, as members of the Board of Education of the City School District of the City of New York, Defendants-Appellants.

Nos. 362, 365 and 366, Dockets 78-7274, 78-7307 and 78-7308.

United States Court of Appeals Second Circuit.

Argued Jan. 15, 1979.

Decided April 17, 1979.

Judith M. Hecker, Albany, for defendant-appellant Commissioner of Education of the State of New York.

Deborah G. Rothman, New York City (Allen G. Schwartz, Corp. Counsel, L. Kevin Sheridan and Robert Zeif, New York City, of counsel), for New York City defendants-appellants.

James I. Meyerson, N.A.A.C.P., New York City (Nathaniel R. Jones, N.A.A.C.P., New York City, of counsel), for plaintiffs-appellees.

George D. Levine, Port Washington, N.Y., for State Senator Levy and State Assemblyman McGrath.

Paul E. Kerson, Nicholas G. Garaufis, Garaufis & Kerson, Bayside, N.Y., Gerard E. Lynch, New York City, for Queens County New Democratic Coalition.

Sidney Romash, Brooklyn, N.Y., for Valley Stream Central H.S. District et al.

Norman N. Liben, New York City, for Union Free School District # 13 et al.

Albert A. D'Agostino, Valley Stream, N.Y., for Union Free School District # 30.

Hall, McNicol, Hamilton & Clark, New York City, for Village of Valley Stream.

Before WATERMAN, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

GURFEIN, Circuit Judge:

This class action for injunctive relief and a declaratory judgment under Title 42 U.S.C. § 1981 and § 1983 and the laws of New York, was begun in June 1976 in the Eastern District of New York (Hon. John F. Dooling, Judge), on behalf of a number of students enrolled in Andrew Jackson High School ("Jackson") by parents of the students. The defendants were the State Commissioner of Education, the City Chancellor, two school officials and the members of the Board of Education of the City of New York. Plaintiffs sought determination that the actions and inactions of the defendants had created a De jure segregated facility at Andrew Jackson High School.

Plaintiffs have alleged that the policies and practices of the defendants-appellants "were taken with the knowledge that the inevitable effect and the foreseeable consequence of the same . . . would result in Andrew Jackson High School becoming a segregated minority school. . . ." The plaintiffs seek to enjoin the defendants from "continuing to maintain and perpetuate Andrew Jackson High School as a racially segregated facility," to require the Commissioner to reinstate a certain desegregation order he had made on December 18, 1975 (discussed below), and to require the defendants "to promulgate and implement a meaningful plan for the purposes of desegregating Andrew Jackson High School."

After the action was filed, the Commissioner approved a school assignment plan on July 1, 1976 (the 1976 Controlled Rate of Change Plan), which was considered in the trial below and invalidated as unconstitutional. Parent Association of Andrew Jackson School etc., et al. v. Ambach, Commissioner of Education of the State of New York, et al., 451 F.Supp. 1056 (E.D.N.Y.1978).

At trial two central issues were involved: (1) whether the concededly all non-white condition of Jackson was the result of De jure action by the State (however defined); and (2) whether, assuming that the current minority character of Jackson was simply a De facto result of conditions beyond the control of the educational authorities, the 1976 Plan the Controlled Rate of Change Plan nevertheless violated the equal protection clause of the Fourteenth Amendment by creating a "dual" school system.

After a lengthy trial, the District Court found that there "is no evidence that the Board has sought to segregate minorities in identifiably minority schools or has taken any action for the purpose of segregating minority students." 451 F.Supp. at 1077.

Having found in his painstaking and meticulous review of the evidence that there had been no De jure segregation, the judge addressed the 1976 Plan. He held it unconstitutional as a denial of equal protection because it limited the admission choices of minority students, with the asserted goal of promoting "the education of the largest possible number of children in schools in which the majority of the students are white for the longest possible time." 451 F.Supp. at 1080. In its finding, the court recognized, nevertheless, that the Plan would actually cause "a substantial Reduction of the segregative impact of demographic change." 451 F.Supp. at 1080 (emphasis added).

The District Court ordered the 1976 Plan to be set aside and ordered the City School District to present a plan to the Commissioner for the desegregation of Jackson substantially in accordance with the earlier December 1975 order of the Commissioner which had mandated the transfer of white students into Jackson.

Thus, despite the finding that no De jure state action had caused the segregation of Jackson, which occurred before the Rate of Change Plan was adopted, the relief granted was not only to invalidate the 1976 Plan but to order affirmative action to remedy the segregated condition of Jackson as well.

From this order both defendant Gordon Ambach, Commissioner of Education of the State of New York, and the various city-defendants appeal, primarily on the grounds that: (1) the 1976 Plan was a Voluntarily undertaken affirmative action program that is accordingly entitled to much more circumspect treatment by the courts than if it had been ordered to remedy existing De jure segregation; (2) having failed to find De jure segregation as to Jackson High School, the District Court lacked the authority to fashion a remedy for the existent racial imbalance at that school or to impose on the defendants a duty to alleviate the racial imbalance; and (3) the remedy ordered appears to exceed that necessary to eliminate any incremental segregative effect of any official acts or omissions. Thus, the appellants contend that the judge violated the principles set forth in Dayton Board of Education v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); See Austin Independent School District v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (order), in which the Supreme Court held that a federal court is required to tailor the scope of a desegregation remedy to fit the nature and extent of the constitutional violations, and must determine, therefore, how much incremental segregative effect, if any, the violations had upon the racial distribution of the school population.

The plaintiffs below, although they do not challenge the ultimate result, filed a notice of cross-appeal in which they argue that the court failed to make certain findings of fact and to apply the appropriate standard in analyzing the evidence as set forth in the cases of Arthur v. Nyquist, 573 F.2d 134 (2d Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 179, 58 L.Ed.2d 169 (1978), and Hart v. Community School Board # 21, 512 F.2d 37 (2d Cir. 1975). Indeed, the appellees appear to agree with the appellants that there is a disparity between the District Court's findings of fact (that the all-minority condition of Jackson was not caused by purposeful state action) and the compulsory desegregation remedy which it decreed. Appellees submit, however, that the court below erroneously failed to find certain facts supported by the record, which would have served "as a predicate for the conclusion which was ultimately reached."

The plaintiffs also appeal the failure of the court (1) to make findings under Title VI (violation of which the amended complaint alleges); and (2) to add Nassau County school districts and officials as parties-defendant so that an interdistrict remedy might be formulated.

We have continued a stay of the District Court's decree pending our decision.

I

Andrew Jackson High School is located in southeastern Queens, about one mile from Nassau County. The area is known as Cambria Heights and is populated predominantly by blacks. In 1937, when Andrew Jackson was opened, the population of Cambria Heights, as well as the rest of the Borough of Queens, was virtually all white. After World War II, the Borough of Queens, and the rest of New York City, underwent extensive population changes as a result of the mass exodus of the middle class, which was mostly white, from the city to the adjacent suburbs. In 1957 the academic high schools in Queens had a student population which was 94.2% "other" (meaning "white", in the parlance of the statisticians). By 1975 the percentage of whites had dropped to 55.4%. By the end of 1977 it was about 48.6%. Assuming a continuation of the present demographic trend, which has shown no sign of abating, the Queens academic high schools will, in the school year 1981-82, have a student population which will be only 36.4% White. ¹

Andrew Jackson is, and has been for several years, virtually an all-minorities high school. ² In slightly over twenty years, the percentage of white students has decreased from over 80% To under 2%...