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

738 F.2d 574, 18 Educ. L. Rep. 823
Court of Appeals for the Second Circuit·Decided July 16, 1984·No. Nos. 553, 677, Dockets 83-7670, 83-7704·Published·Cited by 11 cases

Opinions

LUMBARD, Circuit Judge:

Defendants New York City Board of Education and New York State Commissioner of Education appeal from the decision in the Eastern District of New York, Constantino, /., invalidating the Board’s plan for reassigning students of Andrew Jackson High School to other City high schools, on the ground that defendants failed to justify as necessary at least one of the racially restrictive provisions of the plan. We reverse and remand for further proceedings.

I.

This case originated in June, 1976, as a class action filed on behalf of students and parents in the Andrew Jackson High School District in Queens, New York, challenging the constitutionality of a proposed school desegregation plan voluntarily adopted by defendant New York City Board of Education, and approved by defendant State Commissioner of Education Gordon Ambach. The genesis of the plan, known as the “1976 Controlled Rate of Change Plan,” is explained in detail in two opinions in an earlier stage of this litigation, Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 710-711 (2d Cir.1979), reversing in part, 451 F.Supp. 1056, 1063-69 (E.D.N.Y.1978).

In brief, the minority enrollment at Andrew Jackson High School, which had been 18% in 1957, steadily increased over the next two decades until, by 1976, it exceeded 99%. Beginning in 1963, the New York City Board of Education (“the Board”) adopted a succession of plans to stem Jackson’s acceleration toward an exclusively minority student population by transferring white students in from other zones. As the statistics show, none of these plans was successful. In 1973, the Board finally abandoned the hope of integrating Jackson.1 Instead, it developed a “Choice of Admissions” scheme, under which minority students in the Jackson zone had the choice of attending any of a number of receiving schools at which the minority population was lower than at Jackson, and the influx of additional minority students would not destroy whatever racial balance currently existed.

With revisions in 1975 and 1976, the scheme became the “1976 Controlled Rate of Change Plan” (“the Plan”) at issue here. The Plan was intended to balance the goal of placing Jackson’s minority students in integrated schools of their choice, against the perceived reality that if the minority enrollment in an individual receiving school increased too rapidly or reached a critical absolute level (the so-called “tipping point”), white students would leave the receiving school at an increasing rate. By controlling both the rate and extent of change in racial composition in the receiving schools, the Board hoped gradually to transfer most or all of the student population out of segregated Jackson, without at the same time triggering resegregation of currently integrated receiving schools, thereby giving the largest number of children an integrated education over the longest period of time.

The Plan provided that Black and Hispanic students residing within the Jackson school zone could elect to attend any New [577] York City high school not already overenrolled, in which (1) the percentage of white students in the school exceeds either 50% of the school population or the borough-wide average in the borough in which the receiving school is located (whichever is higher); provided further that (2) the admission of such students, coupled with the admission of minority students from other integration programs and/or through demographic changes in the attendance area servicing the school, will not (a) decrease the receiving facility’s white/minority ethnic balance by 4% or more in any one school year, or (b) produce a rate of change in any one year that exceeds one-fourth of the difference between the school’s current white enrollment and a 50% white enrollment, whichever is less. At the same time, it provided that white students in the Jackson zone could elect to attend any City high school in which the percentage of white students is lower than either the borough’s white percentage or 50% of the school population, whichever is less.

In June 1976, students and parents at Jackson filed this class action against the Board of Education and the State Commissioner of Education, charging (in relevant portion here) that the Plan’s imposition of a racial quota against the admission of minority students to potential receiving schools violated the equal protection clause of the Fourteenth Amendment. The district court, agreeing with plaintiffs, invalidated the Plan as unconstitutional. Although acknowledging that the Board’s goals in adopting the Plan were benign, the court held that by “limitpng] minority pupils’ access to schools because of their minority status in order to provide integrated schooling for as long as possible to a progressively limited number of minority and other students,” the Plan impermissibly recreated “a dual school system” of integrated and segregated schools. 451 F.Supp. at 1080-81.

On appeal, we reversed, holding that the Plan’s aim “to promote a more lasting integration is a sufficiently compelling purpose to justify as a matter of law excluding some minority students from schools of their choice under the obviously race-conscious Rate of Change Plan.” 598 F.2d at 719. However, we remanded for several factual determinations concerning specific provisions of the Plan, including the two relevant here: (1) whether the Board had shown a factual justification for its choice of a 50% tipping point; and (2) whether demographic projections supported the Board’s determination that the maximum allowable rate of change in racial composition of a school should be set at the lesser of 4% or lh of the différence between the current white enrollment and 50% white enrollment.

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Parent Ass'n of Andrew Jackson High School v. Ambach, 738 F.2d 574, 18 Educ. L. Rep. 823 (2d Cir. 1984).

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