U.S. v. Board of Ed. of Waterbury, Connecticut, 237

• Decision Date: 31 August 1977
• Docket Number: D,No. 237,237
• Citation: 560 F.2d 1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, South End Education Committee et al., Plaintiffs-Intervenors-Appellees, v. BOARD OF EDUCATION OF WATERBURY, CONNECTICUT, et al., Defendants-Appellants. ocket 77-6111.
• Court: U.S. Court of Appeals — Second Circuit

Page 1103

560 F.2d 1103

UNITED STATES of America, Plaintiff-Appellee, South End Education Committee et al., Plaintiffs-Intervenors-Appellees, v. BOARD OF EDUCATION OF WATERBURY, CONNECTICUT, et al.,

Defendants-Appellants.

No. 237, Docket 77-6111.

United States Court of Appeals, Second Circuit.

Argued Aug. 31, 1977.

Decided Aug. 31, 1977.

Michael J. Daly, III, Waterbury, Conn. (Carl R. Cicchetti, Waterbury, Conn., of counsel), for appellant.

Leigh M. Manasevit, Atty., Dept. of Justice, Washington, D. C. (Drew S. Days III, Asst. Atty. Gen., Washington, D. C., Richard Blumenthal, U. S. Atty., D.Conn Thomas M. Keeling, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellee.

Kenneth Kimerling, Puerto Rican Legal Defense & Education Fund, Inc., New York City (Jorge Batista, Puerto Rican Legal Defense & Education Fund, Inc., New York City, Alice Bussiere, New Haven Legal Assistance Association, New Haven, Conn., Joseph F. Montwell, Waterbury Legal Aid and Reference Service, Waterbury, Conn., of counsel), for intervening plaintiffs-appellees.

Jonathan E. Silbert, New Haven, Conn. (Joseph D. Garrison, New Haven, Conn., of counsel), for intervening appellee Barnard School P.T.A., Inc.

Before LUMBARD, OAKES and MESKILL, Circuit Judges.

PER CURIAM:

This is an appeal from an order of the United States District Court for the District of Connecticut, Thomas F. Murphy, Judge, selecting Plan C of Amicus, now Appellee, Barnard School P.T.A., Inc., as a remedy for Waterbury, Connecticut's school segregation pursuant to a Consent Order. Amicus Plan C combines the feature of voluntary majority to minority transfer as between the Barnard and Maloney elementary schools with compulsory reassignment of the smaller "regular" student population of the Duggan School consisting of minority children to the Barnard School and of white children to the Maloney School, keeping Duggan open as a special education center.

On June 7, 1973, the school board agreed to a Consent Order to desegregate the Waterbury school system. Had the case gone to trial, the school board might have proved that the school system was not intentionally segregated. However, the posture of this litigation now prevents such an inquiry since the Consent Order operates as a litigated finding of unconstitutional segregation. ¹ See Washington v. Davis, 426 U.S. 229, 243, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Thus, the requirement of a discriminatory intent, necessary to a finding of unconstitutional de jure segregation, is not a proper subject of inquiry on this appeal.

The only issue appropriate for appellate consideration is whether or not the district court abused its discretion in ordering the implementation...